AM2008/19, Transcript of Proceedings [2008] AIRCTrans 789 (4 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19400-1

SENIOR DEPUTY PRESIDENT ACTON

AM2008/19

s.576E - Award modernisation

Application by
(AM2008/19)





Melbourne

11.04AM,
MONDAY, 24 NOVEMBER 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR M MEAD: I appear on behalf of the Australian Industry Group and Engineering Employers Association of South Australia. With me is
MR S SMITH.

PN2

MR A HERBERT: I appear on behalf of Dyno Nobel Asia Pacific Ltd.

PN3

MR R WARREN: I appear by leave on behalf of the Australian Federation of Employers and Industries.

PN4

MR W ASH: I appear on behalf of the LHMU.

PN5

MR K HARVEY: I appear on behalf of the Australian Services Union. I have a very brief submission to make in the matter. If your Honour pleases.

PN6

MR S MAXWELL: I appear on behalf of the Construction, Forestry, Mining and Energy Union Construction and General Division.

PN7

MR B TERZIC: I appear on behalf of the AMWU.

PN8

MS R READ: I appear on behalf of the Construction, Forestry, Mining and Energy Union Forestry and Furnishing Products Division.

PN9

MR G NORRIS: I appear on behalf of the Australian Licensed Aircraft Engineers Association.

PN10

MS J GRAY: I appear on behalf of the CFMEU Mining and Energy Division.

PN11

THE SENIOR DEPUTY PRESIDENT: Interstate, who have we got?

PN12

MR M MURPHY: I appear on behalf of the CEPU.

PN13

MR S BIBBY: I appear on behalf of the Chamber of Commerce and Industry of WA.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Has there been any agreement about who is going first?

PN15

MR HARVEY: Yes, your Honour, they've all agreed that I could go first. No, there hasn't been, your Honour, but I would suggest that those of us with short submissions might be granted the indulgence of making those at an early stage and departing.

PN16

THE SENIOR DEPUTY PRESIDENT: While you're up, Mr Harvey, go for it.

PN17

MR HARVEY: Thank you, your Honour. You get nothing if you don't ask for it. Thank you, your Honour, and to the other parties. The Australian Services Union has a brief submission to make with regard to this round of pre-drafting consultations. We did file submissions with regard to AM2008/19, the manufacturing group, by the required date. I don't intend to go through those submissions when your Honour could probably - I am sure your Honour has read them, but even if you hadn't, your Honour, you would guess what the submissions say.

PN18

In essence what they say is that the awards that are under consideration for inclusion in the big manufacturing award do not include clerical and administrative employees under their coverage at the moment and we propose that that situation should continue and that the Clerks Private Sector Occupation Award should apply to clerical and administrative employees in all the industries which are under consideration in this stage of the award modernisation process.

PN19

I won't repeat those submissions which your Honour will be familiar with, but having examined the submissions of the other parties in these proceedings, your Honour, we find that our position is supported by 99.9 per cent of the other submissions which have been made either explicitly or by not referring to it if you like, but certainly the AMWU submission, the ACTU submission, the AIG submission and a number of others support the position that the clerks should not be included in this proposed award.

PN20

A number of other submissions simply don't deal with the issue one way or another, but there is one exception to that, your Honour, the point 1 per cent which I referred to and that is there is a submission from Commerce Queensland filed with regard to this proposed award and that does suggest at paragraph 5.1.4 that they say:

PN21

In this place we would submit that mechanical/electrical, truck drivers and clerical classifications/rates should be included in the new modernised award.

PN22

I thought, your Honour, that that may have actually been some sort of an error because that's not the position that Commerce Queensland took in the priority round of awards where they supported a private sector clerical award, a substantial application, but I notice that that submission is repeated in the summary on the last page of their submissions at 7.1, so we presume they mean it on this occasion.

PN23

There is no supporting material or reasons in support of why they say that in regard to this particular award as oppose to the Metals and Associated Industry Award which was dealt with in the priority round where they took a different view, but in any case, your Honour, we submit that that's a one off submission. The overwhelming bulk of all the other submissions both by the union parties in these proceedings, but also the employer parties, supports the exclusion of clerical and administrative employees from the proposed award which is the case in the Metals and Associated Industries Award in the priority round and we respectfully submit to the Commission that that practice should be continued on this occasion. If the Commission pleases.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harvey. Mr Herbert,
I can indicate before you begin that I have read all the written submissions that were filed.

PN25

MR HERBERT: Thank you, I won't repeat any of that. Can I just emphasise a few matters that are - Dyno Nobel believes to be somewhat peculiar to it's own particular place in the scope of industries. As the Commission discloses, it's fundamental business is that of the manufacture of chemical products which are when combined with other products produces explosives. It is a respondent to an industry specific federal award which has the very great utility that all of it's employees, except for clerical and administrative employees, all of the balance of it's employees are covered by a single federal award.

PN26

The process of award modernisation appears to be developing in such a way that Dyno Nobel may end up on present indications, for reasons that are set out in the written submission, being something of a victim of the process rather than achieve any benefit from it, in the sense that a number of it's employees are being sought to be cut off to be carried off into other awards. So that for the reasons that are set out in the written submission there is a prospect of a number of the employees being carved off to be covered by the Coal Mining Award.

PN27

A number of employees to be carved off to be covered by the Metal Industries Mining Award, and yet still another group of employees who would appear to be taken from the industry specific Explosives Award to be covered in a broad church Manufacturing Award in a way that as presently advised it is going to require a substantial amount of inclusion material in the broad church Manufacturing Award to deal with the industry specific requirements of a business which is involved in what can be a very dangerous activity and dealing with the explosives which are it's stock in trade.

PN28

There is a substantial risk if fences are not constructed around the Dyno Nobel operation if it is not brought specifically under the coverage of a single award that it will, as I say, be carved off into two or three different awards. The difficulty with that is, as has been mentioned in the submission, is that the question as to whether employees engaged in magazine storage activities and/or shot firing activities on a mining site, the question of the award under which they are covered depends on the nature of the product being extracted by the customer, whether it be a coal miner, a medallist miner or some civil operation, in each case the suggestion seems to be in relation to those other awards that if there are Dyno Nobel personnel on site who are engaged in shot firing and/or magazine activities on that site, then they are to be covered by that award.

PN29

The difficulty with that is the same employees of Dyno Nobel will go from being covered by a single Explosives Award to being covered by one of two other awards and if and when they are transferred from one side to another they will pass from one award to anther award, as I say depending on the product being extracted by their clients or by their customer, none of which appears to make any particular sense and all of which appears to be a considerable reduction in the benefits and efficiencies that were achieved by the making of a single arbitrated Explosives Award about a decade ago.

PN30

For that reason it is submitted in the written submission, and I again urge the Commission in looking at this matter, to ensure that if it is not within the province of the Commission to make or to replicate a stand alone Explosives Award because of the general thrust of the rationalisation which is occurring, and if it is thought advisable to bring a company such as Dyno Nobel under a broad manufacturing type award, that great care will need to be taken to ensure that the sorts of classifications and competencies which are currently contained in the explosives award are brought across because one would have thought they had no parallel in any of the other general Manufacturing Awards because there are a number of classifications and competencies dealt with in the award concerning shot firing and explosive management and misfire management and detonator testing and a range of other things of that kind which have very industry specific requirements. And it may well be that again if there is not the capacity under the award modernisation process to have a stand alone Explosives Award in the context procedures, then the Manufacturing Award will need to have a schedule or an annexe or some special allowance for the industry specific requirements.

PN31

In addition to that the submission has been made that walls will need to be constructed around the operations of a company like Dyno Nobel, so that it's employees are not moved from pillar to post, as it were, from the coverage on one award to another to another, depending upon whether they are actually working within my client's primary manufacturing premises or whether they are working on a coal mine or whether they are working on a medallist mine or whether they are working on a civil construction site, there is the capacity under the current processes for a single employee engaged in that kind of work and with those kind of competencies that they can go out into the field to be covered by four different awards, depending on their geographical location.

PN32

Again, that is not a situation that applies now and given the intended scope and purpose of the award modernisation process, it is not a situation which ought to be imposed upon this company by reason of the current award modernisation processes. As the written submission makes clear, that will require there to be an exemption added to the Coal Mining Award and that has been dealt with in written submission, I won't deal with that here. It appears that it may require an express exemption in the Mining Award. But in any event it will require that the Manufacturing Award contain a very clear statement, if that is to be the award which is to cover the operations of Dyno Nobel going forward, it would be appropriate for there to be a very clear statement within the Manufacturing Award and that part of the award which is intended to deal with this particular part of the chemical industry, that companies engaged in that kind of chemical manufacturing and their employees are not to be covered by any other award, merely by virtue of the fact that particular employees may actually carry out their employment with the company at a particular geographical location which might have some proximity to another industry.

PN33

For all the reasons that I have mentioned that could lead to all sorts of anomalous results that employees will move from award to award to award, and the company would be in a very disadvantageous position in relation to knowing from time to time what award applies, but certainly being able to have a coherent safety net for the purpose of enterprise bargaining going forward.

PN34

THE SENIOR DEPUTY PRESIDENT: Mr Herbert, could you just hold on for one second. Could I ask the gentlemen interstate to be careful when they are turning their pages. The microphone is picking up every turn of the page which is a bit disruptive.

PN35

MR BIBBY: Sorry, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Herbert.

PN37

MR HERBERT: That's all I had.

PN38

THE SENIOR DEPUTY PRESIDENT: Mr Herbert, are employees of Dyno Nobel covered by an enterprise agreement?

PN39

MR HERBERT: Some of them are in different locations, yes, yes, it's referred to in my written submission. In one case there is a certified agreement that applies in the Bowen Basin where there are a number of employees who are engaged because of the vast amount of product which is utilised in the Bowen Basin coal fields. There are magazines and storage facilities nearby the mines where the company transports the product from the factories, stores it nearby the mines. A storage facility will operate out into a number of mines and then at the moment I think two mines. There are also contracts which wax and wane in terms of they are awarded and lost from time to time where the company also provides expert shot fire as to actually detonate the product. In those locations there are people who transport the product in what are called mobile manufacturing units which is a unit which actually mixes the product as it goes down the hole. So it can be carried safely in discrete containers. The product only becomes explosive once it actually mixes together, and there is a mobile manufacturing unit which is operated in those areas where the product is actually physically mixed as it's put in the hole.

PN40

The employees engaged in the Bowen Basin area in that group of activities are the subject of an enterprise agreement and it's mentioned in the submission and the name of it is - I think it refers to the Bowen Basin Certified Agreement. But otherwise generally not, otherwise generally the employees as I understand it are either covered under the award or there have been in the past I think a certified agreement which sat above the award but as we speak it's my understanding that they are engaged under the award itself and there may be some site specific arrangements in various places but there is not as we speak a general certified agreement which covers the whole of the company's operations.

PN41

I can however in case I'm not correct about that, that was my understanding and my instructions. I can find that out and let your Honour's associate know about that detail but I don't understand that there is currently a certified agreement in relation to their operations, generally as opposed to the Bowen Basin.

PN42

THE SENIOR DEPUTY PRESIDENT: And in regard to the submission which I understand is a secondary submission is that ought to be covered by the Manufacturing Award. Have you provided me with the draft variations that would be needed, at least an exposure draft to accommodate your interest?

PN43

MR HERBERT: We haven't yet because the submission that was put up was in the nature of a preliminary submission as to a matter of principle. If the Commission requires that or wishes to produce that I can arrange to have that produced fairly quickly. It would involve for the most part ensuring that all of the classifications and competencies contained in the award which are in fact annexed to as attachment A to the written submission that was provided to the Commission the classification structure and the competencies in the Explosions Award are set out there. As to amendments to the exposure draft for the Manufacturing Award we haven't produced a detail set of amendments but we can do that very quickly.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. Could I ask if you could because we may need to give greater consideration to the proposals?

PN45

MR HERBERT: Yes, certainly.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Herbert.

PN47

MR HERBERT: Thank you, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Mr Mead.

PN49

MR MEAD: Thank you, your Honour. It's perhaps appropriate that we make our submissions now. The submissions that we have put forward in relation to these stage 2 industries cut across all of the 11 industries that have been grouped with the manufacturing group. Can I just say that in the context of the submissions that we intend to put today they will be somewhat brief. There are really just three discrete issues or broad issues that I want to take the Commission to. In relation to general issues that we've advanced in an earlier stage of this proceedings relating to content of the modern award and matters of that nature, I don't intend to traverse any of those subject matters other than to say that obviously we continue to support and stand by the submissions we've made in earlier stages of the process.

PN50

What did I intend to do though in relation to AI Group's position on the stage 2 industries is just very briefly work through some of the issues that we've identified there. The reason I seek to do that is that whilst we have a general principle position in relation to how the stage 2 industries might be able to be accommodated within a broad Manufacturing Award there are two qualifications to that position. One is foreshadowed in our written submissions that were filed on 31 October and another that was detailed in correspondence that were sent to the Commission late on Friday afternoon in the form of a letter, a joint letter on AI Group letterhead but on behalf of ourselves and various representatives to the manufacturing unions. Your Honour, did you receive that correspondence?

PN51

THE SENIOR DEPUTY PRESIDENT: I haven't received that correspondence.

PN52

MR MEAD: I do have a copy that I could provide.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, that would be good. It might be safer to say I've got everything until Thursday night.

PN54

MR MEAD: As I said, your Honour, I intend to just deal with three broad issues. The first issue is AI Group's position as informed by our submissions and also this correspondence that I'll just go to in some detail in a moment. The second issue that we'd like to deal with is just respond in detail really to some submissions that were advanced by the CFMEU, the Forestry Furniture Division and also the position that's been advanced by the General Construction Division in relation to their Off Site Construction Industry Award and then the third issue briefly and there are a rang of matters advanced by various other parties in their submissions that I just want to make some very brief comments on.

PN55

In turning to AI Group's submissions and our position in relation to the stage 2 industries it would be quite apparent to the Commission that we've been actively involved in the stage 1 process, in particular in relation to contributions we've made to the development of the Manufacturing and Associated Industries Occupations Award. In relation to the industries that have been identified for the stage 2 process within the manufacturing group we see that there's no conceptual obstacle to these industries also being rolled in to that broader Manufacturing Award. As I said though, there are two qualifications to that position.

PN56

At annexure F of our 31 October submissions we've outlined how the scope provisions might be amended from the Manufacturing and Associated Industries Occupations Award draft to accommodate this, as I said, principal position in relation to the role of the other manufacturing group awards. That being said, just before I go to the clause in detail there are a number of corrections that seem to have - that need to be made in relation to really formatting issues. It seems that for whatever reason in the redrafting of this clause certain cross referencing to subclauses within the provision have been modified. I take the Commission's attention to clause 4 - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Let me just turn it up, Mr Mead.

PN58

MR MEAD: Sorry, yes, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Mead.

PN60

MR MEAD: Thank you, your Honour. The corrections that I would just seek to make and these will make the clause consistent with what we advanced in the stage 1 proceedings for this proposition is at 4.3(a)(i) the three dot points there make a reference to a corresponding clause within the application provision but the reference is clause 0. That should read clause 4.4.

PN61

THE SENIOR DEPUTY PRESIDENT: Just before you get to that one.

PN62

MR MEAD: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: 4.1(c), should that 4.4 have been 4.5?

PN64

MR MEAD: That's correct, yes, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you, yes.

PN66

MR MEAD: Perhaps another formatting error that I appreciate could be amended.

PN67

THE SENIOR DEPUTY PRESIDENT: That's all right, yes.

PN68

MR MEAD: And then once again just for clarity if you go to 4.3(b), once again clause 0 is referenced and that should be 4.3(a) and as I said, we say that those corrections then make it consistent with what was previously put before the Commission. Your Honour will note from the content and the former structure of our proposal that essentially we seek to rely on the same structure that we adopted in our response or redraft to the exposure draft in our 10 October submissions. That recasting of the clause goes to the first important substantial qualification that we make to our general position that these awards can be rolled into the former Manufacturing Award and that is that our position is really predicated on a clause in the form that we advanced in the stage 1 proceedings ultimately being adopted by the Commission for the Manufacturing Award.

PN69

Your Honour would be aware that we advanced a number of submissions and concerns in relation to how the original exposure draft to the Manufacturing Award was framed, in particular with reference to the residual nature as we saw it of both the industry character of the award and also its occupational status and we sought to address that issue in the way in which we redrafted the application provision in our 10 October submissions. We see its importance and it is significant that there be a discreet substantial industry character to this award and it shouldn't be subservient to other awards that may cover the same type of work and we've advanced various submissions to various stages of this process in relation to that issue. I don't intend to traverse those other than to say that our concerns in relation to should that not be the case influence our position in relation to whether other manufacturing awards should indeed be rolled into the broader manufacturing award and we foreshadowed that position in our 10 October submissions also.

PN70

In this regard we believe that we also align in our views with the majority of the unions that form the manufacturing unions and the DBA and WU CEPU, CFMEU, LHMU and NUW we say also support our recasting of the application clause to provide that positive ground for the ministry character of the award. And all we would say is that we commend that structure to the Commission and that should it ultimately be adopted, as I've said, we would have no conceptual objection to having stage 2 which is then rolled into the broader manufacturing award.

PN71

The second qualification however to that position with this really goes as I said to the correspondence of 21 November is that given the large number of awards it appears the manufacturing award will ultimately supersede. There may be a need to have greater recognition of industry specific conditions of a substantial nature reflected in any modern manufacturing award. Your Honour may recall that Mr Terzic advanced a similar submission in the final stages of consultation proceedings for stage 1 in the manufacturing and associated industries where he called for greater recognition of these industry differences.

PN72

Our position in that regard was that we were not opposed to that conceptually providing that that recognition flowed both ways both in terms of benefits to employees but also be conditions were more favourable to employees. We continue to endorse and adopt that submission and we say that that would achieve the objections as we've known in the correspondence not to disadvantage employees nor increase in costs for employers if such recognition is reflected in the modern awards not only for manufacturing but indeed for any other awards that have sought nationalisation of conditions through an absorption of a broader spectrum of awards into a single instrument.

PN73

What we intend to do in that regard and our submission is noted, these are our written submissions of 30 October, that we hadn't had an opportunity to do a detailed analysis for all the conditions of the various manufacturing awards that we rolled in as part of stage 2. We intend to continue to either, take that analysis and have discussions with the various unions' stakeholders to establish in what form and to what extent such provision must be reflected and then the appropriate terms of such reflection, and we undertake to provide that to the Commission at the earliest opportunity once that analysis has been completed.

PN74

THE SENIOR DEPUTY PRESIDENT: What's the earliest opportunity?

PN75

MR MEAD: We are working diligently to try and get through the large volume of awards. Unfortunately, your Honour, I can't give you a definitive time. We hope to have it completed for at least a starting point for discussion in a fortnight. If that were to the Commission's - - -

PN76

THE SENIOR DEPUTY PRESIDENT: But you should just be aware of our time lines. I think we're publishing 23 January, the exposure draft of stage 2. The reality is that several people need to sit to consider what we might publish prior to that date and indeed more prior to that date so the sooner you can get it to me the more chance you've got of having it considered. A couple of weeks is okay but beyond that it's starting to stretch very close to Christmas and me having to sit on Christmas day to consider what I might put pen and paper.

PN77

MR MEAD: Indeed, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: It's not a good Christmas present.

PN79

MR MEAD: The other issue might also be and indeed it will ultimately depend on what the result of the manufacturing award looks like after stage 1 has been completed. That these discussions with the various unions will obviously be ongoing. I think we can have a good idea of what the various parties might want to have reflected within the industry specific sections of the award and we can provide that in as timely a fashion as possible for that. The ultimate wash up of what the stage 1 modern award might look like from the manufacturing industry will also potentially influence various parties' positions. Naturally I anticipate so that's perhaps another factor to throw in the mix keeping in mind of course that I wouldn't want have your Honour or indeed myself working on Christmas day over these issues.

PN80

THE SENIOR DEPUTY PRESIDENT: In terms of the stage 1 the parties have sought very little change setting aside this big issue about residual award et cetera in terms of the actual content, they've sought little change as I perceive it to the stage 1 exposure draft. There's some differences on various issues but in terms of substantial document so I don't think you want that to be used as an excuse to hold up submissions on stage 2 but I note your view weeks.

PN81

MR MEAD: I understand, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN83

MR MEAD: Your Honour, those are the only submissions I intend to make just in relation to the AR group and I'd like now to move to the positions advanced by the CFMEU again at first with the views to the forestry and furniture division and then I want to deal just briefly to the construction and general division. In reviewing the forestry and furniture submission there were two positions that were apparent that we'd seek to make some comment on. The first was in relation to a view that there should be an exclusion from the Manufacturing Award for glass merchants and the glazing contractors industry.

PN84

The second area of their submission that I want to deal with is in relation to an exclusion that they sought from the Manufacturing Award for furniture made from wood and in lieu of it being absorbed into the Manufacturing Award it should be left for consideration within the timber industry when that's dealt with in stage 3 of the process. In relation to both these submissions that we appose the CFMEU position in this regard and we believe that the Manufacturing Award is the most appropriate instruments for both these categories of work.

PN85

The basis upon which we make this submission and I'll go to that in some detail in a moment is that if you consider the scope of the awards that have already been absorbed into the Manufacturing Award of course assuming that the scope is as has been foreshadowed in the exposure draft. And if you also consider what awards might likely be absorbed into the Manufacturing Award through this second stage of the process it becomes quite apparent in our view that the Manufacturing Award is the most appropriate instrument to cover this type of work.

PN86

In turning to the glass merchants and glazing contractors issue as I said the CFMEU advanced a view that this type of work, this type set in the industry, should be excluded from the Manufacturing Award and our view is that there is substantial overlay between the awards being incorporated within the Manufacturing Award at stage 1 of the process. If you look at the way in which the union have identified the industry and this is really identified at paragraph 2 of their submissions. They identify six awards which they contend which will fall within the scope of their proposed instrument.

PN87

That's the Glass Workers State Award which is a New South Wales NAPSA that's Glass Workers and Glazing South Australian Award, the South Australian NAPSA and then the federal awards relating to glass merchants and glazing contractors that apply in South Australia, Tasmania, Victoria and the Glass Industry Award which is a federal award in Queensland. The proposed scope of their award they identify paragraph 9 of their submission and it's taken essentially from the Victorian federal award and it includes the design, bevelling, cutting embossing or glazing, painting, sandblasting, bending or otherwise working of glass, leadlight, clear plastic, sheet acrylic, glass lens or prisms.

PN88

The fitting or fixing in position of all types of glass, clear plastic, sheet acrylic and any substitute thereof, packing all types of glass and related materials. The manufacture of toughened or laminated glass, the manufacture of a pair of lamp shades, optical work or glass excepting spectacle lenses or frames and the manufacturing installation and insulation of glass units. If you look at the terms of the Modern Manufacturing Award we say that it quite clear that it has broad application. It relates to, reading from 4.3(a)(iii) the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of any of the products identified in essence in clause 4.4.

PN89

And of the products that could be, in our view, repaired, maintained or installed they include at subclause (s) all products made from or contain of plastics or rubbers or substitutes of plastic or rubbers. And at subclause (v) firmer plastics and firmer setting plastics, Perspex and a range of other materials without limiting, without limitation rather, including any material generally known as plastic. Now the scope of the Modern Manufacturing Award in regard to these two subclauses derive from Rubber Plastic and Table Making Industry Award. Now what we say is that the proposed scope for the Glass Merchants and Glazing Award has some clear overlay with the classics applications of the Modern Manufacturing Award.

PN90

The work that's performed in relation to clear plastic, sheet acrylic or any substitute thereof which is reflected as I said in the Manufacturing Award would pick up on the fitting or fixing in a position of clear plastic, sheet acrylic or any substitute thereof which is in 6.1 and 6.2 of the Victorian scope of the Glass Merchant and Glazing Contractors Award. There position is further refined if one considers the other awards that may be ultimately included within the Manufacturing Award as I've said. Glass production is an award that has been identified and foreshadows an award for consideration in the context of this broader manufacturing group.

PN91

The manufacture of glass is not apposed or the union rather that has responded to that award, the AWU, is not apposed as we understand it to that award being rolled into the broader Manufacturing Award and the IR group has advanced a submission that it itself is not apposed also to that inclusion. What we would say is that should that ultimately eventuate there would be little or no work to do for any glass merchants or glazing contractor industry award because any repair, maintenance or installation work involving glass would naturally be picked up by the Manufacturing Award through its current scope and the incorporation of glass production within its scope.

PN92

Additionally if you look at clause 6.4, this is a Victorian Glass Merchants Award that has been extracted at paragraph 9 of the union's submissions. It relates to manufacturing of toughened, heat treated or laminated safety glass. Once again we would say this is more than adequately picked up by the Glass Production Award. If one looks at the classification structure that's in the Glass Production Award also we would say that many of the skills that are reflected and advanced by the union as being relevant and indicative of a discreet industry and glass, merchanting and glazing, are already contemplated and reflected in the glass production instrument.

PN93

These relate to the cutting of glass, the manual handling of glass, the packaging of glass and installation of glass. So what we say is based on the foregoing. Any contention that glass merchants or glaziers have a discreet industry or that the nature of their industry is so distinct that it warrants a separate modern award is a flawed position and it is flawed we say based on the overlap between a range of existing awards that we believe will ultimately be incorporated within the Manufacturing Modern Award.

PN94

The CFMEU raised one other argument in relation to supporting this ultimate outcome and that goes to questions in relation to industry specific conditions. These submissions are found at paragraphs 14 through 19 of their submissions. They identify a range of industry specific conditions that are different from the conditions that are found in the Manufacturing Award exposure draft. What we would say in this regard is that, and in accordance with the correspondence I've already referred to at 21 November, there's nothing that prevents these in this specific condition ultimately being reflected in a Modern Manufacturing Award.

PN95

Should they be of sufficient value and necessity to be reflected within the instrument and these can be matters that could be discussed between the parties and should not stand as an obstacle to inclusion of glass merchants or glazing within a modern Manufacturing Award. In turning now to the second issue that the forestry and furnishing division the CFMEU have advanced and that goes to the exclusion of furniture made from wood from the Manufacturing Award. The union's arguments in this regard are identified at paragraphs 31 through 41 of their submissions and as we read their position there are essentially two arguments that we understand they are advancing on this issue.

PN96

The first is that from their view there is an overlap between aspects of the Furnishing Industry National Award and other awards that are going to be dealt with at this stage, the three most noted, the Timber and Allied Industries Award and on that basis they seek to have furniture made out of wood placed in abeyance until stage 3 and considered in that context. Their second submission is that the Furnishing Industry National Award relates not just to manufacturing but also to installation and therefore it places it outside of the scope of a pure Manufacturing Award.

PN97

From our point of view I think both these submissions can be dealt with quite simply. In relation to the first argument and that is the overlap between the National Furnishing Industry Award and the Timber and Allied Industries Award, we would say that whilst there may be some overlap the extent of overlap is by no means as great as the union articulate. And indeed to represent the extent of the overlap is something that should preclude the inclusion of the manufacture of furniture made out of wood within a broader Manufacturing Award really goes far beyond what would be necessary in this context.

PN98

Clause 6.3.4 of the Timber and Allied Industries Award expresses its application to the manufacturing sector and specifically it states that all that in particular is listed in the milling and processing sector are machining of timber in any manner to produce components and articles. Assemble wood components and associated attachments into products. Paint and glaze products. Joinery work. Manufacture frames, trusses, doors, windows and other building products or components and the measure, estimate, design and manufacture of products for building and other purposes.

PN99

Now, whilst it might appear on its face that the application of the manufacturing aspects of the Timber and Allied Industry Award is quite broad, we would say that if you look at it in the context of the Furnishing Industry Award that's not the case. Now specifically there are a range of subsets of the industry that are covered in the Furnishing Industry Award that we say are absolutely untouched by clause 6.3.4. For example, the Furnishing Industry Award deals with the manufacturing and assembly of wire mattresses, of bedding, of preparing and sealing floors, substances made other than wood, fixing and repairing of draperies, mattress sewers, upholstery sewers, repair and manufacture of refrigerators. Pillows, cushions, blinds and the like and then it also goes into matters such as musical instruments and perambulators.

PN100

Now these portions of the industry, we say, are in no way covered by the Timber and Allied Industries Award. Importantly also the Timber and Allied Industries Award has no work to do in relation to repair and maintenance work and we would say that these are aspects of the Furnishing Industry Award that affect virtually every aspect of the scope provision as currently drafted. We submit also that the limited overlap between the Timber and Allied Industry Award and the Furnishing Industry Award is even more evidence when once considers the vast majority of the furniture that is manufactured today is manufactured from components other than wood including metal, including ceramics and including plastics.

PN101

None of this work would be covered by the Timber and Allied Industries Award and indeed a large number of the awards that have been already rolled in as I said to the Manufacturing Award in stage, contemplate furniture manufacturing made out of these substances. The Metal Industry Award, the Federal Metal Industry Award covers refrigeration manufacturing, perambulator manufacturing, metal furniture manufacturing and repair and also metallic toy and sporting goods manufacturing. All of these provisions have been preserved within the position advanced for the Modern Manufacturing Award. The Rubber, Plastic and Cable making Industry Award, which is also an award that quite clearly has been rolled into the Modern Manufacturing Award, relates to all products made from plastic.

PN102

So we say that if you look at the Furnishing Industry Award in that context, the vast majority of it's scope and coverage is already within the Modern Manufacturing Award. There really is no basis, in our view, for compartmentalising the manufacturing of furniture made from wood and for not grouping that within a broader furniture manufacturing award or a broader manufacturing award as we contends appropriate. Dealing with the union's second argument, and I will just now move to the issue of installation. They identify - and this is at paragraph 25 of their submissions - that:

PN103

The Furnishing Industry National Award covers a range of industries and occupations which involve the custom making and installation of fixtures and fittings. The nature of these types of work is reflected in the fact that it is commonly performed away from the employer's place of business.

PN104

Whilst this may be the case, what we say in response to that submission is that the Manufacturing Award, as drafted, already allows for installation. Installation of products, structures and fixtures that are manufactured pursuant to it's coverage. There will be no additional requirement to broaden out the scope of the Manufacturing Award to accommodate this aspect of the Furnishing Industry Award. All that would need to occur would be an amendment to clause 4.4, to remove the limitation in relation to furniture of furniture made from metal, and we have done that in our draft application provision to remove that exclusion so that in our view the modern award could apply to all furniture and could apply also to all installation pursuant to the provisions of sub-clause 4.3 of the award.

PN105

Those are the only submissions we seek to make in relation to the Forestry and Furnishing Industry contentions. Now I just want to deal very briefly with the Construction and General Division submissions in relation to the creation of an off-site Construction Industry Award. Whilst it may appear that these issues are not issues that are essentially concerned with consultations to the manufacturing group, and indeed should be more appropriately ventilated in the Building, Metal and Civil Group consultations for 1 and 2 December, the scope in which the CFMEU seek to draft their award have a necessary and substantial effect, we say, on the manufacturing group of awards. We intend to raise these issues quite obviously in the Construction Industry consultations, but we see that there is a definite need for these issues to be considered also in relation to the manufacturing group.

PN106

The reason for that is that the CFMEUs position, and incidentally as we understand it it's also the MBAs position, and we make that submission based on submissions that have been advanced in earlier stages of the proceedings, but they seek the creation of an off-site Construction Industry Award that is based upon the terms of the Building and Construction Industry Improvement Act. At all stages of this process we have strongly opposed negotiation of such an award, and the basis upon which we oppose it is that we say it will go well beyond what traditionally has been understood as the Construction Industry and would affect a vast number of manufacturing companies.

PN107

In our written submissions of 31 October, and I draw your Honour's attention to these, at paragraphs 42 through 51 we deal with the range of damaging and serious consequences that could flow from having Manufacturing Awards absorbed into the Construction Industry sector, and I won't re-state those submissions, other than to say that in our view the consequences are extremely serious and ones that could substantially increase costs for employers. If you look at the way in which the CFMEU has drafted the scope of their proposed award, they have included the manufacture of high end ceramics, the manufacture of plaster and gypsum, glass manufacturing and any work involving pre-fabrication of items used in or in connection with building and construction.

PN108

In our submission this directly cuts across the manufacturing sector. By way of example, if you look at the coverage of the current Metal Industry Award it would apply to companies who manufacture aluminium windows, metal shelves, bolts, air conditioned ducting, alarm systems, refrigeration systems, just to name a few. In our view they could all be caught now by the scope provision of this off-site Construction Industry Award. This would even be the case, in our view, if these employers, these companies, never performed any installation work themselves and their employees never left the workshop. This is because the award captures pre-fabricated products that are used in or in connection with the building and construction industry.

PN109

In our submission such a result is absolutely ludicrous and should not be created through this process. The absurdity of such a scenario, we say, is brought to bear even more starkly if you consider some of the other industries that the CFMEU have sought to capture within this off-site Construction Industry Award. For example, under the Glassworkers definition it includes the manufacturing of toughened heat-treated or laminated safety glass. Now, we would say that such glass could commonly be used in such items as safety eyewear. Also it could commonly be used in the manufacture of vehicle windscreens.

PN110

Under the CFMEU's drafting of this off-site Construction Industry Award companies that engage in such undertakings could quite easily and would appropriately under the CFMEU's construction find themselves in the Construction Industry. A further example of our concerns in relation to this, and as I said the absurdity of such a scenario, would be if one looks at, for example, the Clay and Ceramics Industry. Now, the Clay and Ceramics Industry definition the CFMEU have advanced in their off-site Construction Industry Award includes the making of pottery, including tableware, terracotta flowerpots and saucers, terracotta products, ceramic articles and clay articles however described.

PN111

This clause is taken directly from clause 6.2 of the Clay and Ceramic Industry Pottery Manufacturer Victoria Award, an award that was grouped within the manufacturing group of awards for Stage 2. If you were to consider then who would perform such work and who then could potentially be captured by this off-site Construction Industry Award, it could include coffee mugs and coffee mug manufacturers. People who manufacture serving dishes and plates. All these articles are made by ceramics. In some instances they are made by clay or terracotta.

PN112

On the drafting of the CFMEU's proposition in this regard, these manufacturing operations find themselves within the Construction Industry. Whilst these may appear to be extreme examples we say it really does reveal the range of possibilities that are revealed when you attempt to re-badge an industry without regard for it's true character, and we would submit that the attempted expansion of the Construction Industry into areas that in our view are unequivocally manufacturing should be rejected by the Commission. Your Honour, the only other area of my submission is just to deal very briefly with some issues that are raised by some of the other parties, and I believe I can deal with these fairly rapidly.

PN113

In relation to the AWU's submissions, there are three issues that we just seek to identify. The first is that the AWU's submissions identify a criticism in relation to the construction of our application clause as it applies to the construction, alteration, repair and maintenance of railways. What they identify is that they don't believe that we have reflected an appropriate exclusion in the modern award to alleviate their concerns in relation to railway construction. We don't necessarily believe, however, that that is the case and in fact there is an exclusion that has been drafted, clause 4.5F that deals precisely with the AWUs concerns in that issue. We were somewhat surprised to see that submission advanced in their most recent submissions, given the fact they were heavily involved in discussion and negotiation for that sub-clause and exclusion. So we just seek to draw that to the Commission's attention, dealing with that criticism and concern from the AWU.

PN114

THE SENIOR DEPUTY PRESIDENT: Mr Mead, in regard to that exclusion, am I to understand that was agreed between AIG and all relevant unions including the railway unions.

PN115

MR MEAD: The discussion that we had, I am informed, were with the MTFU unions. However, it is our understanding that the MTFU unions were having direct discussions with the railway unions to achieve the outcome that was reflected in that document. So we believe it is a common and agreed document and exclusion, although we didn't have direct discussion with the railway unions in that regard.

PN116

THE SENIOR DEPUTY PRESIDENT: So Mr Terzic, who might be standing for the MTFU unions, might be able to enlighten me on that when he gets his turn. Yes.

PN117

MR MEAD: Thank you, your Honour. Perhaps we can advise the Commission at a later date after discussions. We will have an opportunity to have some discussion with the railway unions and ascertain whether they are happy with the drafting in that regard. I can undertake to advise the Commission if that would be appropriate.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, certainly before 19 December.

PN119

MR MEAD: Absolutely, your Honour, yes. The second issue that the AWU identify is that they seek the creation of a distinct Steel Industry Award, a stand alone steel and iron industry instrument and they also seek parallel exclusions within the Manufacturing Award for the Steel Industry. We have expressed a view in this regard in the earlier stage of the proceedings that the current Federal Metal Industry Award contains specific exclusions for named employers in the Steel Industry and we sought to have those maintained.

PN120

If there was to be any broader exclusion within the Modern Manufacturing Award for the Steel Industry all we would say is that the manner in which that provision would be drafted would need to be done with some great care and detail so that it didn't extend beyond what could currently be envisaged by a Steel and Iron Industry Award. So we would just say in relation to the AWU's submission in that regard that there needs to be some caution and further discussions in relation to whether an exclusion of a broader nature beyond a named employer exclusion is the appropriate vehicle for excluded parties from the Manufacturing Award. The final issue that the AWU raised - - -

PN121

THE SENIOR DEPUTY PRESIDENT: Just in that regard, the draft clause - the draft state clause you would have doesn't cover an exclusion for steel at the moment, be it they are named employers or otherwise, is that right?

PN122

MR MEAD: Your Honour, perhaps Mr Smith could deal with that issue?

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, that's fine.

PN124

MR SMITH: Thank you, your Honour. You will recall at the pre-drafting stage, we made a submission as did One Steel, seeking the existing exemption, I think it's Schedule B of the Metals Award. We still seek those exemptions in line with that submission. We haven't incorporated those specifically into clause 4.5, but the position is set out in that earlier submission. But as Mr Mead has said, given that the Manufacturing Award covers an extremely large number of companies that are making things out of steel, if the exemption is to go beyond just essentially the BHP operations then we would want to be extremely careful about how that is drafted to avoid difficulties when - - -

PN125

THE SENIOR DEPUTY PRESIDENT: If you name specific companies as exempt, where do those companies go in terms of award coverage?

PN126

MR SMITH: Well, those companies, your Honour, have their own enterprise awards or enterprise NAPSAs, the ones that are in the existing list.

PN127

THE SENIOR DEPUTY PRESIDENT: So the ones that have an enterprise award are covered by the exclusion in clause 4.2, aren't they, already?

PN128

MR SMITH: That's correct, your Honour.

PN129

THE SENIOR DEPUTY PRESIDENT: So we don't need to repeat it?

PN130

MR SMITH: I can understand why you would have that view your Honour. The other sites that are mentioned there are covered under various different instruments, but the central point that Mr Mead was making was that this is an issue that needs to be worked through with the relevant companies and for the time being the position that we have with the AWU and ourselves is that we do not support an extension - or certainly with our position we don't support an extension of exempting steel beyond the operations of those companies. But the AWU is putting a proposition that we should have an exemption for the Steel Industry and a Steel Industry Award. We are not supporting that at this stage, but we do understand that there does need to be more discussions about it.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes, okay. So this issue I raise about the enterprise award, in respect of those who have got a NAPSA is a question separately about what you do with them, but I move that to the general discussion.

PN132

MR SMITH: Yes, your Honour, and the legislation that will be introduced into parliament may or may not have something about that issue in it. It may not, of course, but the whole issue of enterprise awards and enterprise NAPSAs and so on, it is something that should appropriately be looked at in the context of the legislation. Your Honour, while I'm on my feet, if I could just make one point about that rail issue. We understood when we were negotiating with the six MTFU unions that the RBTU was having discussions with those unions and the MTFU unions and ourselves make submissions in the context of the Rail Industry Award. We don't believe that this exemption cuts across anything in relation to the scope of the Rail Industry Award and is an appropriate exemption to stand in those terms. So we couldn’t imagine why the RBTU would have a problem with that exemption.

PN133

THE SENIOR DEPUTY PRESIDENT: They may well not, but is it the RSCC, one of the bodies that has put submissions on behalf of, I think, employers in the Rail Industry has put another view about the scope and my recollection is that it goes to anyone who is in rail doesn't come under the Metals Manufacturing Award.

PN134

MR SMITH: We, for the reasons your Honour we have pressed during the manufacturing consultations, have a very strong objection to that because some of the biggest companies in the industry have been under the Metal Industries Award for decades, companies that make rolling stock locos and repair those items, and that may be that organisation's point of view but we understand that is not the position of the six MTFU unions or the RTBU.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN136

MR SMITH: Thank you, your Honour.

PN137

THE SENIOR DEPUTY PRESIDENT: Mr Mead.

PN138

MR MEAD: Thank you, your Honour. As I said, the third issue that I just want to deal with in relation to the AWU submissions is in relation to their view that there should be a stand alone Chemical Industry Award. These submissions are found at paragraphs 15 through 20 of their submissions. The essence of their contentions in that regard seem to focus on the notion that the creation of a discrete - and I will read directly from their submissions.

PN139

The creation of a discrete Chemical Industry Award would allow for the preservation of existing conditions that are superior to those contained in the Manufacturing Award.

PN140

What we say in that regard is that a contention or a submission that is based solely on that criteria is fundamentally flawed and really does place no regard on the broader modernisation objectives, instead focussing as the sole criteria which should have any primacy in relation to the Commission's deliberations about creation of modern awards, this issue of disadvantage to employees. We say that is clearly not the case, and that furthermore based on the views we advanced about maintaining some industry specific conditions that have substantial relevance, that the AWUs only submission in relation to the making of a discrete Chemical Industry Award is the idea of more beneficial conditions for employees than that found in the draft Manufacturing Award, then it can be dealt with and it can be dealt with by devising what appropriate terms could be reflected relevant only to the Chemical Industry.

PN141

THE SENIOR DEPUTY PRESIDENT: Remind me, do they spell out what the conditions are?

PN142

MR MEAD: They do identify a number of issues, matters such as allowances for example are a matter that are identified.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN144

MR MEAD: So they identify a range of allowances at paragraph 20 of their submission.

PN145

THE SENIOR DEPUTY PRESIDENT: When we're talking allowances, allowances fall into two categories it seems to me. There are specific industry allowances, carbon black might be one that is relevant in terms of the current exposure draft where it only applies to certain industries but that's covered by a reference to handlers of carbon black in terms of the application of the allowance. Then there are allowances which are generic such as meal allowance but which have differing quantum's currently. The allowances they're referring to, do they come under the first category or do they come under the second?

PN146

MR MEAD: Your Honour, I believe they perhaps fall into both. They make a submission in relation to broadly what they identify as more beneficial conditions and that's really at paragraph 16 as I've already read on the transcript and then at paragraph 20 they identify specific allowances that perhaps could only apply to individual performing of the work covered by the Chemical Industry Award.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes. I can see the ones at paragraph 20 which might seem to be chemical specific, mightn't they?

PN148

MR MEAD: That's how they would appear at first glance, yes, your Honour.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Then in paragraph 22 they refer to a charge hand allowance.

PN150

MR MEAD: And that relates to the Glass Industry Glass Production Award.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes.

PN152

MR MEAD: I understand there's support for the inclusion of the Glass Production Award within a broader Manufacturing Award is once then predicated on this idea that there are more beneficial conditions or allowances that are relevant to the specific glass manufacturing industry being reflected in some way in the modern Manufacturing Award.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN154

MR MEAD: And just on that, your Honour, what we'd say is quite clearly not all the more beneficial conditions for either employers or employees might ultimately end up in the modern award in the final wash up. Our view in relation to this idea of disadvantage and no increased costs is hinged off a more holistic analysis of the instrument that there are some swings and roundabouts but there may be some areas of substantial increased cost or disadvantage that need to be addressed through such provisions. So we don't see it as a simple case of replicating every minute detail in the modern award relevant to specific industries, that there needs to be some consideration as to what is of substance that would need to be retained moving forward and that's something that can occur through discussion between the parties.

PN155

The only other comments I wish to make is just in relation to the ALAEA submissions and that really just goes to the support for the inclusion of aircraft maintenance in the Manufacturing Award. Their position accords with ours. We do note that CCIWA and Business SA have advanced a view that they don't believe the work covered by the Aircraft Engineers General Aviation Award should be rolled into the modern Manufacturing Award. We don't believe however that position should be adopted and that rather the position that we've advanced in conjunction with the various manufacturing unions and the ALAEA which is the primary union respondent to that Aircraft Engineers General Aviation Award should be the one that is ultimately endorsed by the Commission.

PN156

Indeed the terms of the New South Wales metal industry NAPSA relates to and covers aircraft engineers, aircraft maintenance. It's on that basis such provisions were reflected in the scope of the exposure draft of the modern award that the Commission published on the basis we say of the consensus views of the various unions. It should be included in the modern Manufacturing Award and not left to any aviation industry instrument.

PN157

THE SENIOR DEPUTY PRESIDENT: And in terms of your scope clause, where is that?

PN158

MR MEAD: It's on page 3, your Honour at subclause (f) of 4.4.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN160

MR MEAD: The final submissions I just want to deal with are those of the Glass Merchants and Glazing Association of Victoria. These submissions are in the same vein as the CFMEU Forestry and Furnishing Division submissions regarding glass merchants and glazing contractors. All we'd see to say is we oppose the submissions made by the Glass Merchants and Glazing Association of Victoria for the same reasons that we've already provided to the Commission in relation to the CFMEU's submissions.

PN161

THE SENIOR DEPUTY PRESIDENT: Does the AIG have members who are glass merchants and glazing contractors?

PN162

MR MEAD: We do believe we have some companies in that industry and also in relation to the glass manufacturing industry we do represent the major players in that industry also like Pilkington's for example, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: Very well.

PN164

MR MEAD: Unless the Bench has any further questions those are our submissions.

PN165

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Mead.

PN166

MR HERBERT: Your Honour, can I correct something I've said earlier?

PN167

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN168

MR HERBERT: I've had an opportunity to take some instructions in relation to the Dyno and the existence of certified agreements. In addition to the Bowen Basin agreement there are two other collective agreements. One is a manufacturing plant at Helidon west of Brisbane. The other is a small operation at Warkworth in the Hunter Valley. Those two agreements cover 80 employees in total. When added to the employees covered by the Bowen Basin that's totalled about 150 employees out of - almost 550 employees are covered by certified agreements. The balance of the employees are by and large covered by ITEAs but not by collective agreements.

PN169

THE SENIOR DEPUTY PRESIDENT: All right.

PN170

MR HERBERT: There's a total of about 150 employees covered by three collective agreements. The rest of the employees are not covered by collective agreement but by ITEAs.

PN171

THE SENIOR DEPUTY PRESIDENT: Right.

PN172

MR HERBERT: And they're in places such as Nowra, Mount Isa, Osborne, Macarthur River, the Northern Territory. There are numerous operations all round Australia in reasonably small numbers. Your Honour, some draft proposed variations to the modern Manufacturing Award to accommodate the current provisions of an Explosives Award if it were to be moved across are under manufacture as we speak as a result of a phone call, your Honour.

PN173

THE SENIOR DEPUTY PRESIDENT: Very good.

PN174

MR HERBERT: Thank you.

PN175

THE SENIOR DEPUTY PRESIDENT: All right. Who's next? Don't be too keen.

PN176

MR G NORRIS: I appear on behalf of the Australian Licensed Aircraft Engineers. I'll be very short, your Honour.

PN177

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Norris.

PN178

MR NEWALL: By way of clarification of the letter from the AIG Group of 21 November 2008 it's true that the AIEA would support the general aviation industry as such being treated sectorially as part of the manufacturing group. That's to say that the qualifier on that is that in supporting that view there are important differences in that sector that would need to be taken into account within the modern Manufacturing Award. By way of practical example the occupations that we're talking about, in particular licensed aircraft engineers and the aircraft maintenance engineers trade as well have certain statutory obligations which are in part reflected not only in the competency based structure but also in the allowances, all purposes allowances that are paid for licences and on different types of aircraft given the nature of the differences of the different types of aircraft.

PN179

That's an important component of the overall pay and occupational classification structure and it is quite different and unique. Secondly a good example is that the General Aviation Award has a specific disputes resolution process in addition to the award resolution process which relates to incidents and accidents involving aircraft where it's a matter of a procedure is set down which affords natural justice to people in regard to those sort of investigations and those sort of inquiries in regard to their employment arrangements. Those sort of differences are near and dear to licensed aircraft engineers and that's why we support the concept that the metal modern award needs to cater for the sectorial differences in the various industry sectors that are involved.

PN180

But they're two very specific and practical examples of significant differences that would need to be taken into account. Just a question to you, your Honour, in regard to the comment you made earlier to Mr Herbert, you asked him the question in regard to whether draft orders had been supplied in regard to the variations that people sought, would you envisage that a process that's put forward in the AIG letter would involve the parties coming back to you with formal variation type orders?

PN181

THE SENIOR DEPUTY PRESIDENT: I'm probably stuck on old terminology, Mr Norris, but I can say that the Commission is greatly assisted how parties would like the actual modern award to look is provided to the Commission rather than some general submissions because at the end of the day whilst the submissions form a guide and certain matters will be taken into account in terms of which provisions go in and which go out and which might be changed, we've got the actual wording that the parties like before us. It makes the process much easier so to the extent the parties can do that I think it assists everyone. So that the sort of approach that was adopted in stage 1 whereby the unions and the AIG got together and presented the Commission with a draft award which had agreed positions which set out where the parties were in disagreement was of enormous assistance to the Commission and I would encourage the parties to adopt that approach.

PN182

Hence the pressure I have put on Mr Mead it is just invaluable to our work and whilst I was pressuring him I was doing it from vested interests, my own, because it makes the task of the Commission much easier and we are very grateful for that sort of approach. So I would encourage you to speak to those you have to speak to and provide the Commission with a draft of how you would like the award to look.

PN183

MR NORRIS: I assume that you are looking at a few weeks.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes, because one you provide that that's not the end of the - it's not a matter of us rubber stamping, I'd have to look at it.

PN185

MR NORRIS: Yes.

PN186

THE SENIOR DEPUTY PRESIDENT: And look at it against other submissions others might put and then I'm not alone. So we need some time. It's not a matter of getting it on 22 January and publishing on the 23rd. It will require some lead time so the sooner the better.

PN187

MR NORRIS: I think that quite clearly outlines where we need to head. Thank you.

PN188

THE SENIOR DEPUTY PRESIDENT: While you're on your feet though,
Mr Norris, in terms of those you would envisage covered by a Manufacturing Award from your perspective, what percentage of those employees would not be subject to a certified agreement or some form of such agreement, enterprise agreement of some sort?

PN189

MR NORRIS: Due to the relevant success of the unions in the aviation industry the industry is quite effectively covered by enterprise agreements. As a whole we're probably looking at 80 per cent coverage of the major players and Virgin Tech has in place AWAs which have expired but they continue to operate at this point in time. The general aviation sector, well, there's effectively three major sectors. There's the international group of airlines which are operating the larger aircraft, there's the domestic airline, the old domestic airlines industry which was covered by the Domestic Airlines Award which mainly covered Australian Airlines, Ansett and Qantas by way of transmission.

PN190

Qantas has its own award in regard to engineering and so it's enterprise based awards. Virgin has an award that covers their maintenance operations. It's a federal award as well. And Pearl Aviation have an award and they're mentioned as part of the GA respondents but they have their own variation. Having said that there are a lot of little players out there who are three and four people operations that would not be covered by an enterprise agreement as such or AWAs but rely solely on the award safety net. Our information is that invariably those organisations are probably paying the market rate at the moment within the award.

PN191

The safety net is quite low. The issue of the domestic airlines is somewhat complex in that our view is that the safety net should be established for the industry because we do have a lot of contracting maintenance repair organisations who have statutory obligations under the Civil Aviation Act and are registered who employ licensed people and aircraft maintenance engineers to carry out maintenance as subgroups of Qantas or Forstaff, for example, at Avalon and we have other contractors who are not respondent to - who are more recent players in the industry as it expands who are not respondent to any of the old awards. But an effective safety net needs to be established for those people as well. I hope that clarifies, did I answer your question?

PN192

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN193

MR NORRIS: But the issue of the timing, in particular in relation to the GA structure as such and whatever variation it may be come up with in putting forward is somewhat complex in that the industry since 1996 has undergone a licence and statutory approval review and moving from what was basically an American/Australian system under the FAA and ICAO conventions to a Europe system of licensing. Now, necessarily the parties will in the future have to take into account the new licensing structure which is not reflected in the GA award. It's a matter of evolution. It's a matter of the way the statutes have evolved and the way the government sees things going, the federal government sees things going in regulation of the industry.

PN194

Because the awards are competency based with having a base competency and then all purposes allowance stacked for the additional competencies gained, we see the manufacturing modern award structure fitting into that, however where the levels sit in particular new licensing system is yet to be determined by the industry itself through the MERSITAB type arrangements. Keep in mind, your Honour, that it's further complicated in that sitting at the table in developing the way these structures fit in regard to competency as apart from the industrial relations aspect is CASA itself and the government who are saying, well, these are going to be the sets of competences, the aero skill sectors goes out and says how the outcomes work out and how it's structured.

PN195

So it's probably more of a formal arrangement than most other industries and probably the only other industry that comes in comparison would be the coal industry with the statutory regime. So the work that's involved by the parties in comprehending that and putting together the way that may work within a modern award is quite significant given that we have these other parties involved. But we would hope to have a - I would envisage that we could have the sectorial differences identified, tabulated, a schedule prepared within the three weeks, but in regard to the new licensing system I don't think the parties are anywhere near sorting that out in industrial terms.

PN196

THE SENIOR DEPUTY PRESIDENT: I will note that. Who is next?
Mr Warren.

PN197

MR WARREN: Your Honour, we will be brief. The AFEI notes that in this process of making modern awards the Commission is creating common rule awards with no respondency as previous federal award coverage had. We note the AFEI submissions that have been filed with respect to this second stage and we note the extent of direct concern that AFEI has in four particular Federal awards and indeed several State awards that are now NAPSAs. Without derogating from any of the submissions made, there is particular concern at the expansive character of the draft award into areas not previously covered by awards in certain industries.

PN198

In particular we note the area of supervision which was not previously covered and with no real reasoning given to merit, change in support for this expanded coverage we say the Commission ought not move a Manufacturing Award of such general nature into areas of award coverage of classifications that traditionally in those manufacturing industries it has not covered, and we say that such an extension is clearly contrary to the best interests, particularly of the employers in that industry. The AFEI has raised earlier and reiterates now that it cannot be presumed that a classification structure suitable over years for the Metal Industry is in any way necessarily appropriate for an expanded coverage into other manufacturing industries.

PN199

We note particularly the seven State NAPSAs that are referred to in the AFEI submissions have been established with a long history over many years, and that history should not now be swept away in one single Manufacturing Award. Clearly there have been balancing factors in any NAPSA, any old State awards, balancing factors between conditions, and this goes very much to the heart of the issues also of transitional arrangements. We note with concern the LHMUs position with respect to transitional arrangements, and indeed their support for the incorporation of various industries within a Modern Manufacturing Award would only be supported if their superior conditions can be maintained alongside other conditions.

PN200

There is no balancing factor offered here and indeed the LHMU, with particular respect to the Paint Industry, rejects any transitional arrangements at all that may ultimately lead to a diminution with respect to certain conditions. Indeed the AFEI sees a bigger problem from the other end. The AFEI sees a fundamental problem in transitional arrangements at all and you cannot adopt a transitional arrangement, whatever be the length of that arrangement, which ultimately lends itself to increasing the costs to employers, whether it be over a period of two years or five years. Such is still an increasing cost without justification or merit.

PN201

THE SENIOR DEPUTY PRESIDENT: Mr Warren, the difficulty I have with that submission is I don't know what the increasing cost would be.

PN202

MR WARREN: Your Honour, indeed no one could particularise that cost at this stage at all because those particular arrangements have not been introduced into the industries, are not part of those industries and the difficulty with that then
is - - -

PN203

THE SENIOR DEPUTY PRESIDENT: What particular arrangements?

PN204

MR WARREN: Whether it be an increase in, for example, penalty rates on the weekend, whether it be an increase in overtime payments from time and a half for the first three hours or time and a half for the first two hours. Whatever that additional benefit may be, whether it be an increase in apprenticeship rates. Whatever that additional increase might be, which it is put will be dealt with by transitional arrangements, we cannot come before this Commission, and no party could, and say this is what it is going to cost within the time frame the Commission is affording us. Each individual industry will be different and it would need to be - each individual employer would need to run what the new arrangements are through their wages system to say well, that's going to cost me additional X.

PN205

THE SENIOR DEPUTY PRESIDENT: Why should I assume there would be any increase?

PN206

MR WARREN: I'm sorry your Honour?

PN207

THE SENIOR DEPUTY PRESIDENT: Why should I assume there would be any increase in costs?

PN208

MR WARREN: Your Honour, if there has been a position in an industry such as has been expanded for example in the Paint Industry - no, not the Paint Industry, in industries such as glass, for example, where there may well have been a rate of pay granted for a particular penalty rate on a weekend, for example. If that penalty rate goes up in a modern award, it just speaks for itself that there is going to be an increase in costs. Unless at the end of the day all existing conditions are put an appendices 1 to 35, any change in an award current position which would move those either penalty rates, spread of hours, change in spread of hours from ordinary time up to six o'clock to ordinary time below six o'clock. Any change in the spread of hours which would allow for an employee to be paid or provide for an employee to be paid overtime or indeed a shift penalty when otherwise they weren't must necessarily lead to an increase in costs.

PN209

THE SENIOR DEPUTY PRESIDENT: But your submission is we shouldn't cover supervisors because they are not covered in some of the NAPSAs.

PN210

MR WARREN: That's not the only submission, your Honour, that's a part of it I was highlighting.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes. There is an allegation there would be an increase in costs if one was to do so.

PN212

MR WARREN: No, your Honour, with respect you have moved to a position that we don't necessarily put. We are not saying that the increase in costs would result in the supervisors being covered by an award, it may. We were saying awards generally, when one looking at - for example, the LHMU puts we will accept the Paint Industry going into, for example, a Modern Manufacturing Award provided all the conditions of Paint, where they would be in excess of what would currently be swept into a Modern Manufacturing Award, we maintain them. So if your Honour, with respect, moves my submission from somewhere it wasn't, we were saying as a matter of principle, persons who are supervisors and who are not currently covered by awards should not now at a stroke of a pen become covered by an award when they were not previously covered by an award.

PN213

THE SENIOR DEPUTY PRESIDENT: I see, that's got nothing to do with costs, if they weren't previously covered they can be covered.

PN214

MR WARREN: Yes, your Honour, it may well have something to do with cost, but we wouldn’t know until those supervisors - - -

PN215

THE SENIOR DEPUTY PRESIDENT: But you put it on the basis that as a matter of principle it shouldn't cover supervisors, is that right?

PN216

MR WARREN: Yes, but not only a matter of principle, your Honour. As a matter of principle if a person isn't currently covered by an award, they shouldn’t now be covered by an award because the Commission says we are going to make modern awards, and a modern award doesn't necessarily mean it should expand its coverage. That is one point. It would then depend - - -

PN217

THE SENIOR DEPUTY PRESIDENT: Just let me understand that. In terms of your specific written submission you say in that regard the Modern Manufacturing Award shouldn’t include levels C1 and C2, presumably that is because - well, at least C2A has got "supervisor, trainer, coordinator"; is that right?

PN218

MR WARREN: Yes, your Honour.

PN219

THE SENIOR DEPUTY PRESIDENT: "Supervisor, trainer coordinator" is defined in clause 3.1.

PN220

MR WARREN: Yes.

PN221

THE SENIOR DEPUTY PRESIDENT: So that's the basis on which I should understand that submission?

PN222

MR WARREN: Yes, your Honour.

PN223

THE SENIOR DEPUTY PRESIDENT: That is because some of those people who would be embraced within C1 and C2, and within the definition of supervisor, trainer, coordinator - is it only supervisor, trainer, coordinator
because - - -

PN224

MR WARREN: This is given as a - well, I will just get the award your Honour. I have it now your Honour.

PN225

THE SENIOR DEPUTY PRESIDENT: Very well. Your submission, which is at paragraph 13 in this regard, said, "The award should not contain level C1 and C2, and that's on page 67 of an exposure draft."

PN226

MR WARREN: Yes, your Honour.

PN227

THE SENIOR DEPUTY PRESIDENT: Now, C1 and C2 have certain classification titles and minimum training requirements and set out a wage relativity. In terms of C1 and C2 is it all those classifications that would be covered or is it only the supervisor, trainer, coordinator you are concerned about?

PN228

MR WARREN: When your Honour says "all those classifications" does your Honour refer to principal technical officer, leading technical officer, et cetera.

PN229

THE SENIOR DEPUTY PRESIDENT: Yes, and the minimum training requirements, and when you go to the definitions about what they are.

PN230

MR WARREN: Yes, it is the supervisor classification difficulty arises.

PN231

THE SENIOR DEPUTY PRESIDENT: So we are talking about the C2A largely.

PN232

MR WARREN: Yes, your Honour.

PN233

THE SENIOR DEPUTY PRESIDENT: The C2A definition is within clause 3.1, right?

PN234

MR WARREN: Yes, your Honour.

PN235

THE SENIOR DEPUTY PRESIDENT: You say there are people covered by the NAPSAs you refer to who would come within the definition of supervisor, trainer, coordinator field who are - who come within the industries covered by the NAPSAs, is it, who are currently award free.

PN236

MR WARREN: Yes, your Honour. Particularly when one looks at the
- certainly in the Refractory Industry we understand it's the situation.

PN237

THE SENIOR DEPUTY PRESIDENT: In sorry, which industry?

PN238

MR WARREN: And certainly in the Chemical Workers state. Refractory Industry.

PN239

THE SENIOR DEPUTY PRESIDENT: Refractory Industry and Chemical Workers state.

PN240

MR WARREN: To a lesser extent, to the extent the State award would be a concern it would occur there too. I don't have the specific details of that, your Honour, but that is a concern that I am instructed to express.

PN241

THE SENIOR DEPUTY PRESIDENT: I see. Very well, thank you.

PN242

MR WARREN: I was referring as a matter of general principle, when your Honour raised that question with me with respect to the transitional arrangements that appear in the draft modern award and I have referred to the concern that the organisation I represent has with the transitional arrangements per se at all.

PN243

THE SENIOR DEPUTY PRESIDENT: Sorry, transitional arrangements - - -

PN244

MR WARREN: Which would be expressed to say, for example, if transitional arrangements arrived at within a modern award that said you will adopt the existing provisions of an award which were, say for example, allowing for afternoon shift workers to find as ordinary time after eight pm. In the Modern Manufacturing Award afternoon shifts are defined after six pm, and there would be a transitional time when the employer would not pay afternoon shift up to eight am - between six pm and eight pm, but at a later stage it would transpire that the definition of afternoon shift worker would come to incorporate every time worked, all the time after six pm. We say whatever might be the transition time there is a clear cost increase to the employer where you move your concept of afternoon shift, for example, from eight pm to six pm, and any transition period still can't escape the fact that the employer is going to be obliged to pay additional shift penalty for an afternoon shift worker, whether it be after two years or five years in that context. We say that is clearly an additional cost that an employer should not have to bear, simply because there is a desire to have one award called a modern award, for example in manufacturing, than perhaps a number of awards which would allow for the off-setting of that employer's position where they had an afternoon shift worker perhaps finishing at seven pm and not being picked up in the provisions of the modern award. We say that is a fundamental position that those instructing me put to this Commission, that no transitional arrangement can in any event overcome the ultimate increase in cost to the employer.

PN245

THE SENIOR DEPUTY PRESIDENT: So what is the solution?

PN246

MR WARREN: The solution is not one Manufacturing Award.

PN247

THE SENIOR DEPUTY PRESIDENT: But let's say you didn't have one Manufacturing Award, let's say that the industries that might be subsumed in the Manufacturing Award weren't, let's say the Chemical Industry Award, there is more than one Chemical Industry Award, there are different conditions across the Chemical Industry Award, there is still going to be a problem, isn't there, if you make more than one Chemical Industry Award?

PN248

MR WARREN: Yes, your Honour.

PN249

THE SENIOR DEPUTY PRESIDENT: So how do you suggest we deal with that?

PN250

MR WARREN: The suggestion is, your Honour, that the industries should be allowed to continue to adopt modern approaches to industrial relations but shouldn't be swept into one award or indeed three awards. Your Honour is making an assumption that there are chemical industries at the moment where there are differences, and clearly there would be, and they may now no doubt be dealt with by enterprise awards at the moment which wouldn’t be covered by this sweep in any event.

PN251

THE SENIOR DEPUTY PRESIDENT: Yes, but you accept the notion as a reality, don’t you, that even if we go down the approach of not having one Manufacturing Award, that we have separate industry awards. When we bring NAPSAs and the federal awards in those separate industries together, if we do, there is - and you set one condition - there has to be some sort of transitional arrangement, or do you say we shouldn’t do any of this, we should just actually leave things as they are?

PN252

MR WARREN: Your Honour, there are certain realties about things and there are certain statutory direction given to the Commission in respect of it.

PN253

THE SENIOR DEPUTY PRESIDENT: Yes.

PN254

MR WARREN: So whilst those who are instructing me might not like a particular position, there is a certain reality in the situation, but the reality is that when this Commission is considering what is appropriate for that modern award, clearly coming from a NAPSA which may not necessarily have been, and in many cases in the type of industries that we have expressed here and we express in our earlier submissions to this Commission, where industries have covered by State awards in New South Wales, those awards have a long history of arbitrated conditions which are on a give and take basis. Whilst you might have a lesser shift penalty, there may be significantly higher based rates or vice versa, and each individual award in the State has been crafted to take account of the needs of that industry and they shouldn’t be merely put to one side on the basis of picking up the best of all worlds across the nation, and that's the difficulty that we have
with - - -

PN255

THE SENIOR DEPUTY PRESIDENT: I don't think the unions would argue that in the exposure drafts the best of all worlds have been picked up.

PN256

MR WARREN: Certainly the LHMU argues that what we've got we keep and what we can pick up as well we want.

PN257

THE SENIOR DEPUTY PRESIDENT: You are suggesting that the best of all worlds are being picked up. I think if you look at the exposure drafts that's not the case.

PN258

MR WARREN: We accept that the best of all worlds won't be picked up in the exposure drafts, your Honour, but what our concern is, apart from that which I have already expressed, is that when you are dealing with transitional arrangements.

PN259

THE SENIOR DEPUTY PRESIDENT: We are.

PN260

MR WARREN: You simply can't say - it would be abhorrent to adopt the position of the LHMU and say what we've got we'll keep and what we don’t have we will cater for that in the other direction. We are not giving away a cent. Now, that is an untenable position.

PN261

THE SENIOR DEPUTY PRESIDENT: I know you put that submission, but I am asking you - you may want to say to me I am just putting this submission, but I am asking you whether you actually have a submission on how we should do it.

PN262

MR WARREN: We don’t have, your Honour, an award document to put forward and say this is what should be the manufacturing industry in Refractory bricks, or the award document that says this should be the modern award in the Chemical Industry. I note the exchange between the Commission and other parties currently represented at the Bar table as to what the Commission would find particularly helpful when coming to it's conclusion. The Commission's comments in that will certainly be referred back to those instructing me, and we note the Commission's concerns with respect to that and we don't step away from the clear enormity of the task that is facing the Commission and the time frame within which the Commission has to act. But we do say that there is a real need for significant caution and we have expressed that view.

PN263

Your Honour has expressed to me how would those instructing me change it. Well, I will take those comments back, your Honour, and they will be considered and the views put. Can I say when just briefly commenting on what other organisations have put, we note that the ABI in their suggested amended draft to the Modern Manufacturing Award deals in clause 4 of their suggested draft issues with respect to the application of the award, it is not an easy issue to draw a modern award encompassing many industries apparently and at the same time have a clear and precise indication of what employers are covered and what employers are not. We would view with concern the suggested draft in 4.2 that there is some sort of deeming classification which leads to award coverage. AFAI is of the view that such award coverage should be clear and distinct and no employer should be in any doubt whether they are or aren't under a particular award. Having said that, we note the facilitative provisions of the ABI's draft award and the concern therein expressed that with respect to an employee vote on the facility provisions their concern on the draft where it is said, and I quote:

PN264

In 8(3)(b) where agreement is reached between the employer and the majority of employees in the workplace or a section or sections to implement a facility provisions in 8(3)(a) the employer must not implement that agreement unless the agreement is also reached with each individual employee it is going to be applied to.

PN265

Clearly we submit that such a facility provision would be unworkable where a majority of employees greet a particular provision, for example, hours of work, extension of hours of work, expansion of ordinary hours or contraction of ordinary hours, where the majority agree to that that's the provision that should be applied at the particular plant or manufacturing establishment and should not be able to be rejected by an individual employee saying, well that might be what the majority wants but I don't want that. We see that as a fundamental problem with respect to the facility provisions in the exposure draft and we note the way it is dealt with in the ABI provision.

PN266

Having said that, your Honour, we note your Honour's comments with respect to the benefit that the Commission would obtain from obtaining clear award expressions in any future award modernisation process and I will seek instructions on that. If the Commission pleases.

PN267

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Warren. Who is next? Do you want to go next, Ms Read, or do we want to see if we can get some of the interstate people?

PN268

MS R. READ: I am happy for the interstate people to continue.

PN269

THE SENIOR DEPUTY PRESIDENT: Does anyone from Perth or Sydney want to say anything?

PN270

MR S. BIBBY: Your Honour, Mr Bibby in Perth. If I can just make some brief submissions on behalf of the CCIWA.

PN271

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN272

MR BIBBY: Your Honour, in very brief terms our principal submission is that with the exception that I am about to note in a moment, the range of industries in the Stage 2 manufacturing should be included in the proposed Manufacturing and Associated Industries and Occupations Award. We note, your Honour, that this was anticipated by the Full Bench in it's decision of 20 June at paragraph 42 and we believe that that is a sensible course of action. We concur with the submissions of the AIG and the MTFU, we believe that the way in which that can be achieved most efficiently is by adopting the scope clause that has been nominated by AIG in it's appendix F and we note the changes that were submitted this morning and we would concur with those.

PN273

We believe, your Honour, that in adopting that approach that would ensure that the objects of the Act at Part 10A are achieved and from the standpoint of our membership in Western Australia we would be happy to go down that course. I did make note of the exception and the AIG had noted that in Western Australia we have a preference that in regard to the Aircraft Industry and the group of awards that are included in that schedule, that it is more appropriate for that to be included in the group that is nominated in Stage 3 that is titled, "Airport Operations Other Than Retail". It is a preference, your Honour. We note that in Western Australia by and large the operations of these employers are in close proximity to airports and we believe that looking at that generic grouping in Stage 3 it would more properly fit in that grouping, and we note too the submissions of Mr Norris this morning in regard to some of the licensing requirements. Once again we would say in general terms we would see it fit more appropriately in a specific grouping titled, "Airport Operations".

PN274

We also note, even though we have not made a specific submission around clerical occupations, once again our preference is that it be included in one award. We see no problem as to why that could not happen in regard to clerical classifications, and from our standpoint we simply note that that would also comply with the Minister's request at 3D with the desirability to reduce the number of awards that operate in a particular industry group.

PN275

Your Honour, the AIG I think have addressed the issue of the CFMEU's submissions around off-site construction and also a separate industry group in relation to furniture trades. For the sake of efficiency we would adopt those submissions and suggest that they not be included in separate awards but be included in a Manufacturing Award. We note that in Western Australia our submissions could apply, that in many respects you are dealing with, certainly in regard to furniture trades, employers that are dealing with the manufacture of goods and we see therefore that the award could, with the appropriate changes, cover this industry group. We note, too, that in terms of off-site construction the CCIWA in building and construction, the industry group also mentioned in Stage 2, have made substantial submissions around why the Glaziers and Glass Merchants Award should be included in a Manufacturing Award, and we make reference to paragraphs 13 to 17 of the submissions that CCIWA put in regard to that particular matter. If it pleases the Commission, unless there are any questions we have nothing further to add.

PN276

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Bibby. New South Wales, Mr Murphy, did you have anything to say? We don't know if we have got Sydney, so while we are trying to check that out we might go ahead in Melbourne. Ms Read?

PN277

MS READ: I don't propose to reiterate our written submissions but I do have some issues to take up with the submissions made by the AIG in relation to their response to our submissions. It would be our position that AIG has perhaps read our submissions narrowly in relation to the reasons why we are seeking that the Commission refer to consideration ..... The scope of Furnishing Industry Awards which can probably be ..... by Professional Industry National Award which is essentially ..... It is not simply a group award which we would like people to manufacture items ..... furniture but that those awards relate to a range of types of work including ..... performed on site with the Construction Industry ..... and work of that nature, and also work which is performed with a close nexus to the Construction Industry and the prefabrication of items, of fixtures and fittings as we say in our written submission which ..... construction sites, either .....

PN278

So we say that that aspect of the ..... will make a lot more sense at a later date when the Commission has resolved ..... of off-site Construction Industry Awards which I am sure Mr Maxwell will make further submissions about, but that while the issue of is there spare ..... Construction Industry Award is still live and the scope of that proposed award very difficult to say where these aspects of the Furnishing Industry Award should be ..... We also say that there is an issue of overlap with the Timber Industry and we foreshadowed in our submissions that we proposed when the Timber Industry is before the Commission in round three that we will submit that there is a broader industry which could be the subject of a modernised award, which is not limited in scope to the scope of the present Timber Industry Award but which would in fact be perhaps characterised as a Processing Industry Award which could include some aspects of the Pulp and Paper Industries, and perhaps also some aspects of the Furnishing Industry insofar as it relates to the manufacture of products made from timber or wood, and that once again those aspects of the Furnishing Industry Award which are the subject of an overlap would be more easily determined in conjunction with the Timber Industry and after the Commission has resolved the issue of the on-site Construction Industry.

PN279

We don't deny that there are some aspects of the Furnishing Industry, for example, and the AIG have identified the manufacturing of wire mattresses which may fall to be some form of residual coverage which could fall within the scope of the Manufacturing Industry Award, but what we say is the identification of those residual aspects of the scope of the Furnishing Industry Award are better dealt with at a later stage. That is more fully put in the nature of our submission rather than very ..... with the Timber Industry award per se.

PN280

THE SENIOR DEPUTY PRESIDENT: In short your submission is leave us until later.

PN281

MS READ: If it please the Commission in relation to the Furnishing industry.

PN282

THE SENIOR DEPUTY PRESIDENT: Yes.

PN283

MS READ: I think everybody will find the process simpler. I should also say, although it is in our written submission, that the overlap in relation to the Construction Industry is probably most prominent in the consideration with the Furnishing Industry as compared to the National Joinery and Building Products Award which both awards cover some joinery and shop fitting classifications. In relation to the Glass Industry, your Honour, or the Glaziers Industry as opposed to the Glass Industry, we have made a relatively detailed submission about why we think that industry could be a stand alone award, but I think it's also important to emphasise that if not the subject of a stand alone award we say that the Glaziers Award should fall to the Construction Industry and an analysis of the terms and conditions in those awards is indicative that they are in truth Construction Industry Awards, those terms and conditions are much more cognate with the Construction Industry Award and not really Manufacturing Awards per se. Once again where there is manufacturing conducted off site that manufacturing is generally done with such a strong nexus with the Construction Industry that the reason for the manufacturing is the construction rather than manufacturing per se. In particular in relation to the Tasmanian Glass Award, the Federal Glass Award, that award is something of a hybrid in that it includes joinery and shop fitting classifications, which once again are indicative of the close ties between the Glaziers Award and the Construction Industry Award, rather than that Manufacturing Industry Sector Award.

PN284

THE SENIOR DEPUTY PRESIDENT: Just in terms of a separate award or in the Construction Award, has a draft Construction Award been provided as part of the Stage 2 proceedings?

PN285

MS READ: It's my understanding it has your Honour.

PN286

THE SENIOR DEPUTY PRESIDENT: Right, so in terms of glaziers, who you say should be in the Construction Industry Award, are they in that draft?

PN287

MS READ: I am not sure if it's the most recent draft of the Construction Industry Award, but the National Building and Construction Industry Award un-modernised, your Honour, include the glaziers classification. It's a single glaziers classification I believe at level 3. So it's a much simpler approach to the issue of regulation of glaziers than is taken in the Glaziers Award but there is a classification in that.

PN288

THE SENIOR DEPUTY PRESIDENT: The scope of the draft award for the Construction Industry, maybe Mr Maxwell can better answer this, but I will put it so he can answer it when he gets up. Is that as broad as the BCII Act as proposed by MDA, or is it narrower and does it go to the type of glaziers that Mr Mead has suggested should be covered under the Manufacturing Award?

PN289

MS READ: Mr Maxwell would probably be able to give you more detail about that but it's my understanding, and it's been my experience, that at least some of the glaziers that Mr Mead has referred to are indeed covered by the BCIA Act and they are, when working in manufacturing operations, required to be covered by it because they're participants in the construction industry and creating materials which find their way onto construction sites.

PN290

THE SENIOR DEPUTY PRESIDENT: Some people would argue that everyone is covered by the BCIA.

PN291

MS READ: Perhaps.

PN292

THE SENIOR DEPUTY PRESIDENT: The position you've left me in is that you say glaziers, don't put in manufacturing. Put them either in construction or a separate award. Let's say I don't put them in manufacturing rather than ....., then two options are construction and you say, as you understand it, Mr Maxwell's award will cover them. If we decide to make a separate glaziers award, where is it?

PN293

MS READ: It's difficult to make these submissions, your Honour, I'm sure you'll understand, at the point where all of these things are undecided. If there was a separate glaziers award there would actually need to be some attention given to the issue of overlap with the Construction Industry Award. Insofar as that overlap exists at the present time - I mean, our submission says that there is a separate glass merchants and glazing contractors industry which is made up of people who perform the work of glazing contractors.

PN294

As far as the Construction Industry Award covers glazing, it is a more limited coverage of glazing than is covered by the glass awards at the moment. It's limited to certain thicknesses of glass and it's our submission, as far as it goes, is that the people that are covered by the Construction Industry Award at the moment are generally not engaged in the glass merchants and glazing contractors industry but are perhaps, for example, carpenters who are performing some glazing work within the limitations of that classification.

PN295

THE SENIOR DEPUTY PRESIDENT: That's great, but as I said earlier, we don't have the pointy end of the exercise and if I've got something in front of me which are the words, it's much easier to handle than working around the general submissions.

PN296

MS READ: I understand that, your Honour.

PN297

THE SENIOR DEPUTY PRESIDENT: In your instance, it may be "This is our preferred position, this clause. In the event we're not successful in it, this clause and if we're really unsuccessful in it, this clause."

PN298

MS READ: We'd be happy to provide the Commission with perhaps the sequential series of clauses indicating our preference in that regard in perhaps a two week timeframe, although, as our submission indicates and as Mr Maxwell will indicate I am sure, this is still the subject of extensive consultation and ..... Our submission is made on the basis that that consultation may result in a change to the position of the .....

PN299

THE SENIOR DEPUTY PRESIDENT: You can only do the best you can do, but I can't overemphasise the point that it is much easier for us to deal with actual positions rather than general submissions. We actually would appreciate it. Mr Maxwell.

PN300

MR MAXWELL: Your Honour, perhaps given Ms Read's submissions, it's appropriate that I go now and state the position of the construction and general division of the CFMEU. Your Honour, first of all I'd just like to raise an issue - or respond to the submissions of Mr Mead where he seemed to indicate that the draft scope of the modern manufacturing award that's been put forward by the AIG is agreed to by all the MTFU unions. I should indicate, being one of the MTFU unions that we are not in agreement with the scope put forward by the AIG.

PN301

As you would be aware in regard to the matters dealt with in the priority industries before the Full Bench, that we raised that we had a particular concern in regard to the lack of any exclusion for the construction industry in the scope of the modern manufacturing award being put forward and that concern still applies. To date the AIG have not agreed to any wording for ..... exclusion for the constructing industry in the modern manufacturing, even though the Metals Award did not apply to the installation onsite of products covered by the Metals Award as they were covered by a separate Mechanical and Engineering Onsite Construction Award which is also being dealt with as part of the construction awards.

PN302

Your Honour, in regard to the issue, the overlap between construction and manufacturing, we have, I suppose, three scenarios or three cases. First of all we have the onsite construction of buildings and structures which have traditionally been covered by the constructions awards. You then have the manufacture of metal products which were traditionally covered by the Metals Award. You then have this other group of products, the building materials which were covered by the offsite awards. A number of awards were consolidated in 1993 to form the National Joinery and Building Trades Products Award, an award of the Federal Commission. That covered shop fitting, it covered stone masonry, prefabricated buildings and so forth. That has been the basis of the offsite construction award in terms of its application to the offsite manufacturing of building products.

PN303

We have not made a submission as such in regard to stage II because we saw our time being better spent on trying to prepare draft awards for consideration of the parties so what we have done so far is, we've submitted two draft awards to the Commission, one for the onsite construction and the other what we call the Offsite Construction Award. The Offsite Construction Award we would see covering the previous scope of the National Joinery and Building Trades Products Award and then picking up those areas of offsite construction that are relevant to manufacturing.

PN304

In the draft award that we've submitted, we have picked up four, I think it is, broad areas, those being the clam ceramics industry - - -

PN305

THE SENIOR DEPUTY PRESIDENT: Clam ceramics, yes.

PN306

MR MAXWELL: - - - the plaster and gypsum products industry, the glassworkers or glazing for want of a better term. We've also included the particle board industry but that's an area still up for discussion so that may be more appropriately dealt with by the Timber Award ..... further discussion but the main three are glassworkers, plaster and gypsum and clam ceramics.

PN307

THE SENIOR DEPUTY PRESIDENT: Those three currently have their own awards, they're not part of the National Joinery and Building Trades Construction?

PN308

MR MAXWELL: In regard to parts of the plaster industry, there is an overlap with the National Joinery because the National Joinery Award included precast concrete manufacture which is traditionally seen as the role of the plasterer.

PN309

THE SENIOR DEPUTY PRESIDENT: Precast concrete?

PN310

MR MAXWELL: It's the manufacture of terrazzo panels which is traditionally seen as the role of the plasterer which flows onto the coverage of the plaster and gypsum industry. Commissioner, if I can take you to the Plaster Industry State Award in South Australia which is part of these, the definition of plaster and gypsum products that we've included in this award is actually taken from that state award which shows the overlap between plaster and gypsum and the work of plasterers.

PN311

Your Honour, you'll find on the Commission's website under the Building Construction Civil Construction Industry Group that we have now added another document to the Commission's website which deals with the NAPSAs that apply under the construction group. We sought to divide those NAPSAs between onsite construction and offsite construction and if you look at that offsite construction, you will see that throughout those awards, those state awards that we seek to bring into the Offsite Award, that there is a continuous reference to the work of plasterers, to the work of glaziers and so forth and that is why we see them going in with that group.

PN312

One of the main reasons we have sought to have a separate group is because of the different conditions that apply in awards that have come out of the building industry. One of the most significant differences between the Building Awards and the Metals Award, on which the Manufacturing Award is based, is overtime. Under the Metals Award or Manufacturing Award overtime is time and a half for the first three hours and then double time. Under the Building Awards and the majority of awards that we sought to include in the Offsite Construction Award, the overtime rate is time and a half for the first two hours and then double time, so it's a significant difference in conditions there.

PN313

THE SENIOR DEPUTY PRESIDENT: The difference being an hour.

PN314

MR MAXWELL: An hour, but in terms of the cost differences, I think this was an issue raised by Mr Warren, it's the difference between the awards. Your Honour raised about providing a document which showed the differences between the awards. We say to some extent we have already done that with the offsite construction. We've done it by the production of the Offsite Award which is on the Commission's website but we've also provided documentation which I think is the different conditions that we sought to include in the Hospitality Industry Award, if they included maintenance functions or building trades maintenance functions. We included an appendix which I think is in our submissions to the Full Bench in the priority industries those additional clauses that we saw as being necessary to protect those conditions of the building maintenance trades and I think that goes to some 40 pages of additional conditions.

PN315

Those conditions deal with issues such as overtime, they deal with shift loading because under the building awards the shift loading for nightshift is time and a half compared to - which is a lesser condition in manufacturing. There is a difference in regard to annual leave accrual. This isn't consistent across all offsite building awards but there is in regard to the National Joinery and Building Trades Products Awards and the state counterpart awards in regard to annual leave accrual. Under those awards the annual leave accrual is based on 1/12th of a week as opposed to 1/13th of a week under the NES and under the Manufacturing Award.

PN316

THE SENIOR DEPUTY PRESIDENT: What, that's a difference that should be preserved or something?

PN317

MR MAXWELL: Definitely, your Honour. There is also a difference in regard to the personal leave. My understanding is that the number of years accepted in the manufacturing awards that you only refer to the NES in regard to personal leave. There's a significant difference, we say, in regard to the building awards in that you have that issue with personal leave accrual which I made submissions to the Full Bench on in the priority round where you have bought up the entitlement to your full year's entitlement at the start of your anniversary date.

PN318

THE SENIOR DEPUTY PRESIDENT: These are the sort of conditions that Mr Mead says are the basis on which we shouldn't include certain people in the offsite construction because there would be advances to current manufacturers who are under - - -.

PN319

MR MAXWELL: Your Honour, I think their argument is on a different tack. I think their argument is that a number of the offsite building awards currently give an entitlement to issues such as portable long service leave and there are also the employees covered by those awards who are also in a number of cases covered, which is the onsite aspect, also covered by redundancy ..... in the construction industry and I think that is the angle that the AIG is coming from in terms of the potential increased costs for employers.

PN320

THE SENIOR DEPUTY PRESIDENT: Do those provisions apply in offsite?

PN321

MR MAXWELL: The portable long service leave schemes in a number of states actually refer to awards under which people work and then that's where they get their entitlement to the portable long service leave scheme and the Joiners New South Wales is one of those state awards; New South Wales is one, the National Joinery Building Trades Products Award is a federal award which is covered, the Mobile Crane Hire Award is another that's covered and so forth.

PN322

If I can turn to the issue of glaziers or the glass industry, we say that there are possibly three distinct areas there. First of all you have the production of glass which is where they bring in the raw materials and actually produce the glass and make it into bottles and so forth. We say that is a separate group and that can be dealt with under the Manufacturing Award.

PN323

The second group is the glazing contractors and the glassworkers. These are companies and workers who provide some treatment to the glass and cut up the glass to various sizes to then install it either in domestic houses or for glass pool fencing or for - it can also go all the way up to glass curtain walling that's installed on multistorey buildings. We say those glazing contractors, because there's been, I suppose, some overlapping coverage between our divisions in regard to those workers and different awards that apply, for example in Queensland you have the Glass Industry Queensland Award, it's a federal award which applies to glassworkers up there. You have the Glassworkers State in New South Wales which traditionally applied to glazing contractors there and then in WA you have some of the state awards over there that apply to glaziers but then in, I suppose, the southern states for want of a better term, Victoria, South Australia and Tasmania, they are covered by the Glazing Contractors Awards.

PN324

You then have a third group which are your onsite installers or glaziers and they are the people that tend to be covered by the National Construction Award and that is like there was only the one classification of glazier.

PN325

THE SENIOR DEPUTY PRESIDENT: Your onsite installers; let me give you an example. One of my sons put a basketball through a bathroom window the other day and I rang up a major window company and a guy came out, cut the glass and put it in. What is he covered by?

PN326

MR MAXWELL: We would say that that would be covered by the Offsite Construction Award because we see maintenance being split into two in that you have minor maintenance which is small carpentry repair work which would cover the replacement of a broken window in a domestic house. You would then have major maintenance which is where there's structural alterations to a building which we say is covered by construction so that's where we see a dividing line between onsite and offsite.

PN327

THE SENIOR DEPUTY PRESIDENT: The chap that came out to my place is covered by - - -

PN328

MR MAXWELL: Currently depending on which state - sorry, in Victoria he'd be covered by the Glazing Contractors Award Victoria.

PN329

THE SENIOR DEPUTY PRESIDENT: You say that coverage would go into which award?

PN330

MR MAXWELL: We're suggesting that that would go into the Offsite Construction Award.

PN331

THE SENIOR DEPUTY PRESIDENT: The onsite installers then, what are they installing, prefab?

PN332

MR MAXWELL: They're mainly installing prefabricated glass products. This could be glass curtain walling you see on the outside of buildings, some of the major windows inside, although most of the windows these days come to a site prefabricated.

PN333

THE SENIOR DEPUTY PRESIDENT: Which award would they covered by?

PN334

MR MAXWELL: They'd be covered by the onsite.

PN335

THE SENIOR DEPUTY PRESIDENT: All right, yes.

PN336

MR MAXWELL: I think that covers the glazing. In regard to the plaster and gypsum products, as we say there's clearly an overlap between plasterers and those companies that are manufacturing gypsum products. If you look at the awards that are in the group that was supplied by the Commission, you'll see that a number of the federal awards that apply are enterprise awards. And this is mainly the NAPSAs that are the awards that provide the wider coverage and those being the Plaster Casting Award - sorry, that's a pre reform award. The Plaster Shop Hands and Casting State Consolidated Award, award of New South Wales, which I'm sure Mr Warren is aware of. The Fibres Plasterers Factory Award in South Australia. The Plasterers and Terrazzo Award Factory and Mixed Enterprise Award of South Australia. These are the awards that are based on the traditional role of the plasterer which has evolved in to the production of plaster products, whether it be plasterboard or whether it be cornices in building or plaster roses and things, decorative features.

PN337

So we say that work is more related to the off-site building industry and you will tend to find that the conditions under those awards are more related to the off-site building industry. I should make the point and correct the stats of AIG, that the CFMEU has not sought to create any awards based on the scope of the Building Construction Industry Improvement Act. Our understanding is that is only the position of Master Builders Australia.

PN338

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN339

MR MAXWELL: That is only the position of the MBA. We have tried to make the coverage of awards we propose as precise as possible and that is why in regard to our off-site award we put the definitions in of those and just agree with things that we see come in within that award. So we have definitions for joinery work. We have definitions for clay and ceramics industry, we have definitions for plaster and gypsum products and so forth. So we see that the coverage of this off-site construction award can be fairly precise. We believe that in regard to the issue of ..... that we can deal with that by saying that the work is either in this award or, if it's not contained within this award, that it would apply to
the - that the manufacturing award would apply.

PN340

So that is the basis on which we have drawn up this draft award.

PN341

THE SENIOR DEPUTY PRESIDENT: Do we have companies which would manufacturer the glass and then send people out to install it?

PN342

MR MAXWELL: Yes.

PN343

THE SENIOR DEPUTY PRESIDENT: So where do they come in?

PN344

MR MAXWELL: Well, there are, depending on the size of the company, you'll have those companies that will cut the glass to shape in the factory and then have a separate installation crew which will go out and install it on site. You'll have those small businesses which will do both. So people in the - - -

PN345

THE SENIOR DEPUTY PRESIDENT: Yes. So small businesses that do both. They don't actually manufacture the glass, though, do they? They've got glass which they cut to size and then take out and install?

PN346

MR MAXWELL: That's right, yes.

PN347

THE SENIOR DEPUTY PRESIDENT: They might put it in a window, for example.

PN348

MR MAXWELL: That's right.

PN349

THE SENIOR DEPUTY PRESIDENT: So I don't know, would they have a worker in the factory who makes it up and then goes out and installs it?

PN350

MR MAXWELL: Yes.

PN351

THE SENIOR DEPUTY PRESIDENT: So who do you say they should be covered by?

PN352

MR MAXWELL: We would say that depending on the project they're working on, I mean, if they're doing it in a domestic environment, then they will be covered by the off-site award.

PN353

THE SENIOR DEPUTY PRESIDENT: All right.

PN354

MR MAXWELL: If it's on a major construction project they'd be covered by the Construction Award.

PN355

THE SENIOR DEPUTY PRESIDENT: Right. Do we actually have firms that physically make glass as opposed to cut it, and then cut it and then install it?

PN356

MR MAXWELL: Not that I'm aware of these days, they tend to sub-contract that work out. I haven't looked at the operations of Pilkington's lately. I think they now go by the name of Vesuvius, or something.

PN357

THE SENIOR DEPUTY PRESIDENT: Yes, whatever.

PN358

MR MAXWELL: Sorry, Viridian, but I think they tended to outsource the installation side of those products.

PN359

THE SENIOR DEPUTY PRESIDENT: So you say the issue of being involved in all three doesn't arise?

PN360

MR MAXWELL: That's right.

PN361

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN362

MR MAXWELL: Now, your Honour, in regard to the draft award that we submitted we've adopted the format that has generally been put forward. I should say that that document is a work in progress given the limited time I had available in between construction awards and this award and the priority industry submissions. I did the best I could. We recognize though that there are difficulties to pick up the issue raised by Mr Warren. We recognize that there are different conditions that apply in some of the different sectors that we seek to be included and it was our intention to reflect those differences with the then various clauses of the award where necessary.

PN363

So for example in this version I only got to the stage of dealing with some of the clay and ceramics industries. You'll see that there's different leading hand allowances. One general one and then one for the clay and ceramics one where it's different and that might be a minor issue that can be dealt with in the transitional arrangement over time, but we've then sought to - where there are differences, for example, under the National Drawing and Building Base Products Award, currently enjoined in New South Wales, is broad banded 6, whereas it's broad band 5 in all other States. So it's a leave to put that in as a transitional provision under part 9 of our draft award.

PN364

Where the industry allowances differ for the stonemasons down in Victoria we put that in the transitional provisions at the back of the award. So what we're seeking to do is to - so, for example, if there's different in shift work arrangements, you would have a standard shift work arrangement and then where it's different you would then identify that particular industry would be required to include it in the provisions. We think that's better than actually attaching things to the schedule because people tend not to look at the schedule and they just look at the main body of the award and we think it's best to highlight it up front.

PN365

THE SENIOR DEPUTY PRESIDENT: That draft is agreed with whom?

PN366

MR MAXWELL: No one, your Honour, apart from the CFMEU and that's just the construction division.

PN367

THE SENIOR DEPUTY PRESIDENT: Right. Are you working on that/

PN368

MR MAXWELL: Well, your Honour, I would like to have the opportunity to meet with the employers in the industry and discuss it further and unfortunately I haven't had the opportunity to meet with the AIG group yet and we would hope that we could perhaps use the time available this week to meet with them and go through our proposal. We're not sure - I'm surprised that someone from the MBA isn't here, although I believe that Mr Kale has been indisposed last week. But obviously they would have the need to meet a number of the other employer organizations, but we had intended to have further discussions and hopefully between now and 23 January to help reach some agreement with the other parties, which perhaps - - -

PN369

THE SENIOR DEPUTY PRESIDENT: 23 December would be better.

PN370

MR MAXWELL: Well, if we can do that by then, I'd be more than happy. Your Honour, but that does raise a specific issue which isn't just relevant to this group, but I think to a number of groups that are before the Commission and this issue that the parties have discussed amongst ourselves is a concern in regard to the best use of our time in preparing the documents for the Commission is getting some indication from the Commission in terms of the way they are thinking, in terms of the number of awards.

PN371

Now, obviously that won't be fixed until the actual awards are made. We understand that. But, for example, construction is slightly different but in construction currently there are six or seven draft awards on the Commission's website and if the parties go off in their own ways creating those six or seven drafts, then we don't believe at the end of the day that's going to be very beneficial to what the Commission has to determine at the end of the day in terms of making an award. So if the Commission was thinking that perhaps the Modern Manufacturing Award is growing in to too big an award, and perhaps there are different areas that should be looked at, but then that may give us some scope to go away and discuss those areas and perhaps come up with an agreed position.

PN372

I just raise it because it is a live issue in all areas that we are currently dealing with and given the time limitations for the whole process, some guidance in that area would be very beneficial to the parties.

PN373

THE SENIOR DEPUTY PRESIDENT: All right.

PN374

MR MAXWELL: I think, your Honour, that's really all that I need to say at the moment. As I say, hopefully with further discussions between the parties we can reach an agreed position. Obviously we will be discussing internally in terms of that glazing area, but I also understand that the MBA will be putting forward an off-site award and construction as well. So I think it's appropriate that at some stage the AIG again and ourselves and the other parties sit down and discuss it. If the Commission pleases.

PN375

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Murphy in Sydney?

PN376

MR MURPHY: Thank you, your Honour. I suppose it's best to characterize our situation as probably need to raise three points. One is the relationship between electrical contracting and the manufacturing award.

PN377

THE SENIOR DEPUTY PRESIDENT: Yes.

PN378

MR MURPHY: We believe we've made substantial progress in that regard with the other parties, the employer parties, but it remains to be seen, I suppose, what the Commission's view is in relation to that. So we need to adopt somewhat of a wait and see approach in that regard. The second point I think we need to make is the evolving character of the manufacturing award in regard to occupations and its impact on a number of our NAPSAs for electrical trades people. That raises the third point which is a subset of that. Essentially a number of those NAPSAs have overtime paid at double time after the first two hours rather than three as proposed in the Modern Metals Award.

PN379

They're really the three issues that confront us and I think largely they'll be resolved by some ongoing discussions between the parties and as we see the Commission's position, develop in relation to the electrical contracting. There's probably little I can add in regard to that, your Honour, at this stage.

PN380

THE SENIOR DEPUTY PRESIDENT: I think I didn't pick up the split between the second and third point. One is your concern about overtime, time and a half for the first two, versus three, but there was also - - -

PN381

MR MURPHY: In a number of NAPSAs, your Honour, yes.

PN382

THE SENIOR DEPUTY PRESIDENT: Yes. Was there three points or two points?

PN383

MR MURPHY: Yes, there was three points. One is - - -

PN384

THE SENIOR DEPUTY PRESIDENT: One is the electrical contractors' issue?

PN385

MR MURPHY: Yes, that's correct.

PN386

THE SENIOR DEPUTY PRESIDENT: One is the overtime issue?

PN387

MR MURPHY: Yes.

PN388

THE SENIOR DEPUTY PRESIDENT: And what's the third?

PN389

MR MURPHY: The third one is really the occupational nature of metals. It's not a concern. It's just a point I wanted to raise because it provides an introduction, I suppose, to the question of the overtime question.

PN390

THE SENIOR DEPUTY PRESIDENT: Very well.

PN391

MR MURPHY: We're not concerned with the occupational nature of metals. In fact I think we support it more than anything. It's more a question of does that include a number of the old NAPSAs which have that overtime provision and how we might deal with that.

PN392

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Ms Gray?

PN393

MS GRAY: Thank you, your Honour. Your Honour, the Construction Forestry Mining and Energy Union and the Mining and Energy Division of it is only in passing interested in the chemical industry where it's the chemical industry and that's in respect to the two awards which are identified in our outline of submissions and we have no particular concern as to terms and conditions there. They are awards which reflect in general chemical workers' industry award conditions.

PN394

Where our concern is, is in really the interface between the electrical power generation industry and the black coal mining industry and the coal industry and what we see as the expansion of the chemical industry into some of those other industries. So it's of concern in terms of interface and we have the same difficulty, to some extent, that my comrade Mr Maxwell had in the priority award stage where building and construction wasn't being dealt with as a priority award, but nonetheless submissions have to be made in anticipation before dealing with the industry award itself.

PN395

So the industries which - we've already had coal dealt with at least to the extent of having made submissions on the exposure draft, coal mining. When the priority awards were initially raised our division of the union sought to have the coal industry dealt with rather than just the coal mining industry and the Commission determined otherwise. Essentially we read it on the basis of time frame and that coal mining was more easily dealt with as a priority award in a very short time frame and in fact that was the case. Whereas we would intend to reactivate our submission for a coal award, broader than coal mining, perhaps segments of a coal mining award when made, and a coal award which we would seek to have the coal ports incorporated in as the Pilbara ports have been incorporated in general mining.

PN396

We would also seek to have superintending samplers who are part of coal port operation work incorporated in a more general coal award and although the AWU opposed that when we made submissions in respect to the priority award scope themselves being restricted to coal mining rather than the broader coal industry. So these things are foreshadowing, I suppose, that down the track this is some of the matters that we'll be raising and it's our view that when one looks at some of the parts of the industries being dealt within the chemical industry, within manufacturing, that there are issues which - or areas which would be better dealt with in other industries.

PN397

In the coal mining industry modern exposure draft we have an exemption for the mining of brown coal in conjunction with the operation of a power station. We sought an exclusion from the modern Mining Award for brown coal mining that didn't eventuate by the exposure draft but during the submissions on the exposure draft AMMA and the AWU I understand, but certainly AMMA conceded that it would accept an exclusion of brown coal mining from general mining. We say that because brown coal mining is essentially the feed for the Victorian electrical power generation industry that it is better placed within the electrical power generation industry.

PN398

When we come to the chemical industry, your Honour, there's a few, there's a little operation which ostensibly falls within the Artificial Fertilisers and Chemical Industry Award 2001 via its respondency list including, it says in here, Australian Char Pty Ltd. That may be there's an award which deals with Auschar and it is a preparation or further drying and compressing, as I understand it, of brown coal. There's also another company that has an operation adjacent to Yallourn Power Station which is called Energy Brix and it also further dries - brown coal which is mined for the power station travels on the conveyors by the same procedures but some of it goes off on a separate feed line to be further dried and compressed into what's called Energy Brix which is then used to fire boilers at hospitals and things of that sort which is also power generation.

PN399

So in the chemical industry there is, in terms of our interest in the electrical power industry and brown coal, there is a concern with the inclusion in the scope or proposed scope of a modern Manufacturing Award of picking up the words from the Artificial Fertilisers and Chemical Workers Award of including the liquefaction of coal to oil. That may or may not be something which encompasses the Auschar operation, your Honour, but it certainly is a process which although named in the coverage of the award the union is unaware of any current operation actually conducting that work. Nonetheless because it's the Chemical Fertiliser Award is one of the major ones for the drafting or proposed drafting of an expansion of the Manufacturing Award it looks like picking up the words of -

PN400

Including the liquefaction of coal to oil.

PN401

We say that in a broader Coal Award that that type of process, if it occurs, should be incorporated in a Coal Award. We have concerns with the Artificial Fertilisers and Chemical Workers Award insofar as the respondents also include Orica. Orica along with Dyno Nobel provide the explosives to the general mining and coal mining industries in Australia. Certainly in coal Orica is a respondent to the Production and Engineering Coal Mining Industry Award and in the - - -

PN402

THE SENIOR DEPUTY PRESIDENT: Just on that then, as you understand the proposed scope, be it from the exposure draft or subsequent agreement between yourselves and the relevant employer regarding the Coal Mining Award, would that exposure draft of the Coal Mining Award or subsequent discussions you've had cover Orica?

PN403

MS GRAY: Yes.

PN404

THE SENIOR DEPUTY PRESIDENT: But your concern is by including the term explosives, is it, in the Manufacturing Award that they may be covered by both?

PN405

MS GRAY: Your Honour, the manufacture of explosives doesn't concern us at all when it's done in factories where essentially they're providing fertiliser to farmers and explosives and feedstock for explosives. What our concern is with explosives is when we have people employed to work on a coal mining site for up to 10 years going to a drill pattern in overburden or inter burden and loading the shot holes that have been drilled by coal mining industry people, loading them up with explosives, having a shot fire, fire the shot and having the overburden removed or the inter burden removed which is an intrinsic and essential part of coal mining to expose the coal, that's where we have a concern with what's being called explosives work or the explosives industry by people such as Dyno Nobel but in fact it's part of the continuing process of coal mining.

PN406

THE SENIOR DEPUTY PRESIDENT: So you say they're currently proposed to be covered by the Coal Mining Award. You have a concern that they may be covered by a separate Chemical Award or the Manufacturing Award.

PN407

MS GRAY: Yes.

PN408

THE SENIOR DEPUTY PRESIDENT: Because of the reference to explosives in 4.4AA is it?

PN409

MS GRAY: Yes, your Honour, and because of the sort of submissions that have been made on behalf of Dyno by Mr Herbert. Your Honour, the Dyno Nobel Award or the federal Explosives Manufacturing and Distribution AWU Award 2000 is in fact only a single union, single employer award. Dyno Nobel is the only respondent to it so I think it's an enterprise award and - - -

PN410

THE SENIOR DEPUTY PRESIDENT: It's starting to sound like it, isn't it?

PN411

MS GRAY: Yes. So again Mr Herbert's comments that competencies from this award should be transferred into the chemical industry part of the Manufacturing Award we would be firmly opposed to because there are those competencies currently in the Mining Award and encompassed in the Coal Mining Industry Awards. If a company which is respondent to an enterprise award seeks to have those transferred into a general Chemical Award within the Manufacturing Award then what work would they have to do other than perhaps very, very cut price coal mining industry work.

PN412

THE SENIOR DEPUTY PRESIDENT: So you say and I’m sure Mr Herbert will read this transcript, that Dyno Nobel is covered by an enterprise award.

PN413

MS GRAY: Yes.

PN414

THE SENIOR DEPUTY PRESIDENT: So they needn't be concerned about anything that's done and indeed the task they're doing they needn't do.

PN415

MS GRAY: I'm sorry, what was the - - -

PN416

THE SENIOR DEPUTY PRESIDENT: The task that Mr Herbert at my instruction asked for them to do, they needn't do.

PN417

MS GRAY: Yes, your Honour, that's our view. We note that Dyno Nobel isn't listed as the respondent to the Artificial Fertilisers Chemical Industry Award although the other half of the duopoly of that work in Australia Orica is. That's no doubt because the AWU and Dyno Nobel did a separate enterprise award to cover that work across Australia.

PN418

THE SENIOR DEPUTY PRESIDENT: Can I just pursue that a bit more? If they're covered by an enterprise award, they're excluded from coverage under this award, however there is the broader question about, let's say, new entrants to the industry which award they would be covered by, which presumably AIG would argue that's the reason for including the scope of the Artificial Fertilisers and Chemical Industry Award in here, if that be the case your concern still is that the exclusion of that scope leads to some potential confusion about whether they're covered by the coal mining industry or this award?

PN419

MS GRAY: Yes, your Honour, and having heard what your Honour has said earlier today, we would certainly prepare a draft amendment to the scope clause and draft exclusions within the next two weeks to reflect what we seek to get out of it. I hope today to be able to cover some of the points which justify our objections, your Honour.

PN420

THE SENIOR DEPUTY PRESIDENT: Right. Yes, thank you, that would be useful.

PN421

MS GRAY: Your Honour, everybody - - -

PN422

THE SENIOR DEPUTY PRESIDENT: It would also be really useful if you could discuss it with the AIG.

PN423

MS GRAY: Yes, I think construction general is probably the only part of our union that has had discussions with the AIG, your Honour, and I just note that in terms of the AIG's submissions this morning that when other than construction general division was used that it was meant because our union hasn't had the discussions reflected in the matter of 21 November with AIG but I take your Honour's point that perhaps we should. Your Honour, we'd also say that in fact Dyno Nobel by transmission is also a respondent to the Coal Mining Industry Production Engineering Award despite the fact that we have a Full Bench decision to say that they're not in the coal mining industry and one of the difficulties we face is that we also have a Full Bench decision of Harnischfeger who is a contractor performing work in the coal mining industry, was in the industry and we also have the other half of the explosives work that's done in the coal mining industry the duopoly of Orica and Dyno found and accepting that as found by the P&E Award.

PN424

But we do say that in fact Dyno Nobel is a respondent by transmission because - your Honour, might I hand up a bundle of documents just for reference? I don't wish to have them marked because most of them are agreements as the Commission has ready access to anyway. It's just for convenience as I refer to them. The first document, your Honour, is the cover of a company search which demonstrates that Dyno Nobel Asia Pacific Limited was previously Dyno Nobel Asia Pacific Ltd, previously before that Dyno Wesfarmers Ltd and before that, DuPont Wesfarmers Pty Ltd.

PN425

In fact DuPont Wesfarmers was a joint venture entered into between DuPont and Wesfarmers in 1987. Wesfarmers which in fact runs a coal mine in Western Australia was a joint venture entered into between DuPont and Wesfarmers in 1987. I'm sorry I said that. Wesfarmers did and does sell the feedstock ammonium nitrate for explosives. DuPont sold its 50 per cent of Dyno Nobel in 1988. Wesfarmers sold its 50 per cent to Dyno Nobel in 1996 so that Wesfarmers and DuPont have exited the company and it's now fully owned by Dyno Nobel which is a privately owned Norwegian company.

PN426

The Production and Engineering Award, your Honour, and the next document in the bundle which I handed up is a copy of a current exhibit in the award modernisation in respect of the coal mining industry exposure draft which was marked as CMI3. It has in yellow highlighted contractors who are respondent to the Production and Engineering Award and one of those respondents in fact is DuPont Wesfarmers Pty Ltd which is number 109 in the list. So - - -

PN427

THE SENIOR DEPUTY PRESIDENT: There's a T in 109 and no T in the ASIC extract.

PN428

MS GRAY: Yes, I think that was simply a typographical error at the time of the respondency, your Honour, but it was certainly Wesfarmers Dyno. But nonetheless, we say that Dyno Nobel in the past has accepted that it was in the coal mining industry. We accept that it no longer has that view but in December 2000, which is the next document, there was Dyno Nobel Blackwater Certified Agreement 2001 which was made in the coal industry before Commissioner Bacon between the Construction, Forestry, Mining and Energy Union and Dyno Nobel Asia Pacific Ltd. It makes reference on page 3 of that agreement, your Honour to the no disadvantage test and said:

PN429

For the purpose of applying the no disadvantage test the parties agree that the federal Explosives Manufacturing and Distribution Award 2000 and the Coal Mining Industry Production Engineering Consolidated Award 1997 shall apply.

PN430

The same is the case with the next document in the bundle, your Honour, which is Dyno Nobel Peak Downs Certified Agreement, again purported to be made in the coal industry before Commissioner Bacon and again between Dyno and our union and again referring to for the no disadvantage test, both the Explosives Manufacturing Award and the Coal Mining Industry Production Engineering Award. It cross references at clause 11.2 to part time employees being engaged in accordance with the Coal Mining Industry Production and Engineering Award and the rates of pay, considering it was a 2001 agreement, ranged from $58,000 to $69,500 per annum which is still considerably more than the current rates in the Chemical Awards and also had an allowance for a shot firer.

PN431

Despite the fact that Dyno had two union agreements regulating its coal mining industry work, it in 2003 sought to vary the federal Explosives Award by including shot firing competencies for the first time, your Honour. Also the next document in the bundle is a copy of transcript from that case where Commissioner Bacon had some real concerns not about including shot firing because the work of Dyno was done on coal mining sites and in general mining all of which is hot firers, but the company also sought to have a provision put into the federal Explosives Award of essentially exclusivity that it was the only award to apply to any of its employees.

PN432

Commissioner Bacon asked a variety of questions about the intention of that and said that he had some real concerns with seeking to limit what in fact the industry of the employer was by reference to such a restriction in the scope of an award. The next document is simply for completeness a copy of the company with consent of the AWU's application to vary that award and the next one is a copy of a decision by Commissioner Bacon which is PR941617. And in paragraph 3 it identifies what was sought to be changed in terms of the restriction within the scope - or exclusivity within the scope clause of the award to try to oust coverage of, for example, Production Engineering Award, by saying,

PN433

No other award shall apply to the work of employees whose terms and conditions of employment are governed by this award.

PN434

It is a very short decision, your Honour, but clearly Commissioner Bacon regarded it as an appropriate manner to vary the award and refused to do so with the view that depending on the reality of the facts and the relevant tests, Dyno Nobel's employees may well be doing work in the Coal Mining Industry or in the general mining industry and trying to restrict that application did nothing to clarify the scope of the Federal Explosives Award.

PN435

The last document in the bundle, your Honour, is a copy of the current Dyno Nobel Bowen Basin Certified Agreement. When the union was running it's application for a dispute finding, at first instance through appeal and then to the High Court and by remittal to the Federal Court, Dyno maintained it's position, from 2003 when the 2001 agreements had expired, that it was not in the industry, and as a result of that it took a consistent approach with bargaining and refused to have replacement agreements with the union being party to that agreement.

PN436

What eventuated, your Honour, was that one of our officials in the Bowen Basin who looks after our Coal Mining Industry was the bargaining agent for Dyno's employees and it was through that process that the 2006 agreement was reached. However, I would note on page 14 of that 2006 agreement, your Honour, that we see that five day, under "annual leave", employees working a five day roster were getting 25 days paid leave, which is five weeks, consistent with Coal Mining Industry conditions. In terms of long service leave, that is also the Coal Mining Industry condition of 13 weeks after eight years continuous service.

PN437

So the concept that Dyno is seeking not to be faced with high costs when it's rates and those conditions where the Coal Mining Industry has better than community standards are reflected in their agreements in any case. Your Honour, the other areas of concern to the union aside from the interface with black coal and the interface with the Electrical Power Generation Industry via brown coal and it's treatment is the Petrochemical Industry. We have substantial membership and historical coverage at Quenos in respect to it's Botany facility and we also have a similar position at the ZLAN120046.

PN438

THE SENIOR DEPUTY PRESIDENT: So it's a NAPSA that is specific for that company?

PN439

MS GRAY: Yes.

PN440

THE SENIOR DEPUTY PRESIDENT: All right.

PN441

MS GRAY: Again the annual salaries in that award, rather than the agreement, because I understand there are some difficulties about looking at agreement rates, demonstrate it's nexus with the Oil and Gas Industry rather than the Chemical Industry, with salaries ranging from a trainee being on $53,028 a year to a senior operator being on $101,275 a year. So Bezel and Quenos both Petrochemical producers, both are the producers of polypropylene in Australia and both with ranges of salaries three to four times higher than the sort of rates encompassed in the Chemical Fertiliser Industry Award. For those reasons we say that well within the lines of the Minister's directive that employers shouldn’t be faced with additional costs and employees shouldn’t suffer reductions that the type of work done, and as I say we will draft up a proposed exclusion from a proposed Chemical Industry Award, the type of work done and the types of terms and conditions, I understand they both have 35 hour weeks, which is also consistent with the Oil and Gas Industry. There are far more similarities with the Oil and Gas Industry than there is with the Chemical Industry your Honour and we would say that it would be an enormous reduction to employee entitlements, particularly for this NAPSA to have as the ongoing safety net as a modern award the Chemical or Manufacturing Award rather than Oil and Gas Award, but of course that is a stage 3 industry your Honour.

PN442

THE SENIOR DEPUTY PRESIDENT: Is this an argument that only those two companies should be in the Oil and Gas Industry, or is it an argument that the Artificial Fertilisers and Chemical Industry Award should be considered as part of the Oil and Gas Industry?

PN443

MS GRAY: No, only these two companies, your Honour, but only this type of work that these companies do.

PN444

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN445

MS GRAY: It may be, and it does happen from time to time, that some of them disappear and other ones pop up, but that is what - Bezel actually is on the Shell Refinery site, and as I say has it's feed stock immediately coming from a refining process. The last company which - - -

PN446

THE SENIOR DEPUTY PRESIDENT: How much longer do you think you've got?

PN447

MS GRAY: Three minutes.

PN448

THE SENIOR DEPUTY PRESIDENT: Fine.

PN449

MS GRAY: Auschar Operations Pty Ltd, your Honour, this may be a respondent to the Chemical Industry Award if it's actually Australian char operations, it could also - but we note that - I have done an ASIC search on Auschar Operations Pty Ltd, which is the employer respondent to the Auschar Operations Pty Ltd Fluidised Bed Coal Drying Plant Industrial Award 1998, sought and achieved voluntary deregistration in 2007. One of my officials in Victoria in the Electrical Power Generation Industry, your Honour, describes the operation as essentially having tumbleweeds rolling through it and that may well be the case if the employers voluntarily deregistered. But we have had discussions with the AWU which is the party to this award and suggested that our view is that it would be better placed in the Electrical Power Generation Industry as a downstream process of brown coal mining and would sit better there with the terms and conditions than in the Chemical Industry.

PN450

Your Honour, that is our concerns with this industry and these awards and we will undertake within a fortnight to provide your Honour with a draft amendment to the scope of the award and with exclusions relating to the polypropylene production producers and brown coal treatment. Although Mr Herbert isn't here, I can assure your Honour that Mr Herbert and I have had ongoing arguments about Dyno Nobel and it's industry and so on, we will no doubt continue to do so. What we say is that an award modernisation, although traditional coverage, industry coverage and so on is a good starting point, what needs to be done is to - in our submission, is to ensure that like fits with like, in industry, in terms and conditions and in so doing the Commission will more easily be able to accommodate what initially appeared to be a very difficult parameters directed by the Minister which is to ensure there is no cost to employers or loss to employees from the process. That's all we have to say about that your Honour.

PN451

THE SENIOR DEPUTY PRESIDENT: Thank you Ms Gray. The bundle of documents you handed up in regard to Dyno Nobel I will have marked and put on the website.

PN452

MS GRAY: Thank you, your Honour.

PN453

THE SENIOR DEPUTY PRESIDENT: That leaves, I think, Mr Ash and
Mr Terezic, I think, remains. How long do you think you will be Mr Ash?

PN454

MR ASH: I will be very, very brief your Honour.

PN455

THE SENIOR DEPUTY PRESIDENT: And Mr Terezic?

PN456

MR TEREZIC: About 10 minutes.

PN457

THE SENIOR DEPUTY PRESIDENT: I will adjourn to 2.15, it looks like we're going to finish today, which is good, give you all time to work on that work. I will adjourn until 2.15.

<LUNCHEON ADJOURNMENT [2.27PM]
<RESUMED [3.11PM]

PN458

THE SENIOR DEPUTY PRESIDENT: Mr Ash.

PN459

MR ASH: Thank you, your Honour. I'm only going to be very brief. In response to Mr Warren's comments on our written submissions, we did not submit and we do not submit now that employers do not also seek to maintain conditions where it provides some flexibility for employers. We were submitting on the representative position of our membership only. In this respect I note that
Mr Mead in his submissions discussed the maintenance of industry specific conditions and that they wouldn't oppose it and he mentioned that they wouldn't oppose it where the conditions were substantial, which I understood to mean there was a substantial difference between the standard in metals as it currently is and these industry specific conditions and I presume that we will need to have some discussions with AIG when we're sitting down drafting something to put to the Full Bench about preserving these conditions.

PN460

We will have to have some discussion around what substantial means and try and agree upon what that means. I don't imagine that will be all that easy but it's something that we will attempt to do. The LHMU has done quite a bit of analysis from our perspective on the differences in the conditions and that's something that will be able to move on fairly quickly and even if agreement can't be reached amongst the other union parties in relation to some of their conditions we would be asking AIG to agree to ours alone to put that up for reference for the Full Bench as early as possible. If it pleases the Commission.

PN461

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ash. Mr Terzic.

PN462

MR TERZIC: Thank you, your Honour. Firstly I would just like to remark on the principles espoused in the letter that Mr Mead tabled, the letter dated 21 November 2008 wherein the parties set out to the Commission the importance of having some flexibility in providing for differences to accommodate conditions from other awards and industries so that it will be subsumed into the Manufacturing Award. This is an issue that I addressed on behalf of the AMWU before the Full Bench in Sydney and it is something that the parties will attempt to address and there have been negotiations between the parties on a schedule of conditions that would preserve some terms and conditions of employment that the parties do consider imperative to preserve fairness and not result in employees losing or employers suffering additional costs.

PN463

The problem is that there hasn't been promulgated by this Commission a test or formulation on what level of difference will be countenanced and what won't. All we have so far really is what the Commission has done here and in addressing this point earlier I called it brutal or might say severe, there has been really little tolerance for the recognition of specific conditions for any one industry. But where this leads to practical difficulty is that if in the process of negotiations the parties make compromises on a key set of conditions that they feel is a fair and equitable outcome that meets the relevant statutory tests and then that has been put to the Commission, the parties have been in the hands of the Commission and the Commission might disturb or upset that compromise by accepting some of the conditions but not others.

PN464

This in effect really imperils the parties and what would be of great assistance and if the Full Bench could turn its mind to this, would be to set out some of the principles that they say would be needed to be met for the Commission to preserve in perpetuity some conditions in a broad industry award. Some conditions might be seen by some parties to be indispensable but others might not think of them as indispensable. In my respectful submission I think Mr Norris from the Licensed Engineers Association has made a good case for preserving some licence allowances and other conditions that are central to the engagement of licensed aircraft engineers, again on what's indispensable to some might not be indispensable to others.

PN465

I think it was Napoleon Bonaparte who said the graveyards of the world are full of people who thought they were indispensable. So if there could be some set of reckoners as to what will be needed for conditions to be preserved that are different to the broad industry standard that would be of great utility and we'd seek that the Commission turn its mind to making a pronouncement on that issue. The next issue I wish to address is the linkage or boundary between this award and the construction industry and the construction industry is an industry that's in this round and it's being dealt with by Senior Deputy President Watson.

PN466

The AMWU opposes the approach suggested by the Master Builders Association which would be to have the boundary of that industry line up with the Building and Construction Improvement Act. That position is opposed because it just goes too far. It does cover many employers who are really manufacturers and the notion that a building product is part of the building industry does take things to an absurd length. Almost anything that's manufacturing will find its way into a building from glass to electrical appliances to furniture. The point is that there are some processes that are really manufacturing and within the manufacturing enterprise there is no connection whatsoever with the construction industry.

PN467

An example might be paint. The paint industry workers who work in a paint factory make a product that is used for a large extent in the building and construction industry but the process of manufacturing paint has no technical relationship to the building industry, not in terms of skills, not in terms of wages and conditions or in terms of technology. They are really quite separate. So that then begs the question should there be an off site Building Award. So far the AMWUs position has been against such a proposition but we've not ruled it out altogether and the parties, the AMWU and the CFMEU are still in talks and perhaps we are of a view that an award that largely follows the National Joinery Award might be an appropriate place for such an award to be made, but beyond we're quite adverse to that proposition.

PN468

Your Honour posed a question on the connection between the Manufacturing Award and the Rail Award. I can inform the parties and the Commission that I was involved in the formulation of the Rail Award and that has got a very tight and circumscribed scope and application. It really only applies to the operators of railway systems so if a railway operator manufactures it would still be part of the Railway Award. But there are very few rail operators in Australia, maybe a few major state players like Queensland Rail and a few smaller players that have come in as a result of the deregulation of the rail industry, but in terms of manufacturing it would be quite a limited proposition outside of the main state government authorities that run rail networks.

PN469

THE SENIOR DEPUTY PRESIDENT: I maybe looking beyond the manufacturing area, an issue may be one of the occupations that's covered by the exposure draft is technical workers and technical workers are defined in the exposure draft, that's the manufacturing exposure draft and there's classification definition as well. The exclusion is in respect of -

PN470

An exclusion with regard to locomotives, roll and stop, railway line and components work carried out by employees or a rail transport operator and work carried out on site in the building and construction industry.

PN471

So there may be a question of whether a technical worker employed by a rail transport operator is covered by the Manufacturing and Occupations Award or the Railways Award.

PN472

MR TERZIC: Your Honour, as I appreciate the way in which the Rail Award is drafted, that would stand paramount and all occupations covered by rail operators would also be covered by that award. There might be some very minor scope for some occupations that one could almost say fall between the gaps would be covered by an occupation award and the only one I can think of might be, for example, perhaps a medical practitioner or a nurse or a few persons in those grades. But the way I understand it all technical officers employed by rail operators are covered by the Railways Award.

PN473

THE SENIOR DEPUTY PRESIDENT: Yes. I guess in one sense they might be excluded by the definition of technical worker which is a worker who is mainly engaged in the conducting of scientific or engineering work on analytical, et cetera, in connection with chemical, biochemical, physical chemical, bacteriological physics, physical testing or metallurgical processes, which is probably unlikely to cover that technical worker in the railway industry.

PN474

MR TERZIC: Yes, and it seems like it's an argument that could be sliced so many times it probably might not have any practical application when all is said and done. Another issue was the status of the iron and steel industry and the AMWU is quite receptive to a separate award in this area but we are not yet at the point of giving unequivocal support because until we have reached a satisfactory arrangement with the Australian Workers Union, which is the principal union, we won't give it such support. So the sticking points lie in the detail and it's principally around contractors. But once those are dealt with one might see forthcoming from the AMWU support for such an award.

PN475

Your Honour addressed one way of that industry being carved out and separated from the Manufacturing Award would be through enterprise awards, federal enterprise awards and it's our understanding however that enterprise NAPSAs don't get such privilege treatment and they are simply to be rolled over by modernised awards, industry awards, and on our analysis - - -

PN476

THE SENIOR DEPUTY PRESIDENT: Well, barring what's in the legislation ultimately, at the moment the NAPSAs cease on 31 December, don't they, 2009?

PN477

MR TERZIC: Well, it might be one of the other unknowns that bedevil this whole process.

PN478

THE SENIOR DEPUTY PRESIDENT: Yes.

PN479

MR TERZIC: But there is a preponderance of NAPSAs in that industry as it stands. It might be something that needs to be dealt with. We might have a clearer picture of what we can expect later this week when it all will be tabled and made available to the public. The last issue is just briefly in reply to Mr Warren's submission on a request that supervisors in some industries might be left out. Well, that was his request. There's another request that probably has more standing and that's the Minister's Request and the principle as set out for such situations is found in paragraph 2(a) and therein it does provide for awards to stay away from those areas that have traditionally been award free, for example, managerial employees, but then the request goes on to say that just because in some industries under some awards there has not been a history of coverage, but if there has been a coverage of such occupations in other awards that the exemption from awards should not there from apply.

PN480

So that's all. It's really just to report back the parties are still engaged in trying to sort out how to accommodate the various other industries that are part of this process and as I said, if there could be some view expressed from the Commission as to what are the requirements to maintain inter industry differences that would assist the parties, otherwise they will just follow the existing panel which we suspect would have to be a compelling case, a real case, not just the desire of the parties and such differences will be undoubtedly captured in a schedule or separate parts and passed on to the Commission for consideration. If the Commission pleases.

PN481

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Terzic. That's it? Fantastic. I will now adjourn.

<ADJOURNED ACCORDINGLY [3.28PM]