AM2008/15, Transcript of Proceedings [2008] AIRCTrans 813 (15 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19392-1

SENIOR DEPUTY PRESIDENT WATSON

AM2008/15

s.576E - Award modernisation

Application by
(AM2008/15)





Melbourne

10.03AM, MONDAY, 1 DECEMBER 2008

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

Hearing continuing

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, what I might do is read through the list of parties who have indicated an interest in this consultation and in effect take appearances by finding out who is here today. The ACTU is not appearing. AI Group, yes, and it's Mr Ermer, is it?

PN2

MR A ERMER: Yes, with MR S SMITH I appear for the Australian Industry Group, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you very much. Airconditioning and Mechanical Contractors Association, no. AMP, no. AMWU, yes, Mr Terzic?

PN4

MR B TERZIC: Yes.

PN5

THE SENIOR DEPUTY PRESIDENT: Association of Professional Scientists and Engineers, no. Australian Business Industrial, Australian Federation of Employers and Industries. Yes, Mr Doyle, is it?

PN6

MR A DOYLE: Yes, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. ASU, AWU. Mr Herbert.

PN8

MR A HERBERT: Yes, thank you, your Honour, for the AWU

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Business South Australia, CFMEU, Mr Maxwell.

PN10

MR S MAXWELL: Yes, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: CFMEU Forestry Division, no. CGT Roofing Pty Ltd, Chamber of Commerce and Industry WA, Chamber of Commerce Northern Territory, Civil Contractors Federation, Commerce Queensland, CEPU.

PN12

MR L BENFELL: I appear for the Plumbing.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Benfell and
Mr Cooney. Connect Crane Industrial Council, Electrical Communications Association. Yes, sorry, your name?

PN14

MS A SZCZEPANSKI: Sorry, Ms A Szcezepanski.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. Group Training Australia, Housing Industry Association.

PN16

MR S CHAMBERLAIN: Mr Chamberlain.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. ING, Local Government Associations, MBA and Mr Calver.

PN18

MR R CALVER: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Master Plumbers and Mechanical Contractors Association New South Wales.

PN20

MR AUSTIN-WOODS: Yes, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Mr Austin-Woods?

PN22

MR E AUSTIN-WOODS: That's right.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Master Plumbers and Mechanical Services Association, Mr Shaw and Mr Harnath.

PN24

MR B SHAW: With MR C HARNATH, yes.

PN25

THE SENIOR DEPUTY PRESIDENT: Master Plumbers Association Queensland, National Electrical and Communications Association. Sorry.

PN26

MR B GREEN: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Green, yes. National Fire Industry Association.

PN28

MR W SMITH: Yes, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bakewell, Sunsuper Pty Ltd, Tasplan, TWU. Mr Johnson.

PN30

MR B JOHNSON: I appear for the TWU.

PN31

THE SENIOR DEPUTY PRESIDENT: Now, who have I missed? In Sydney?

PN32

MR I WARREN: Yes, your Honour, I'm appearing today on behalf of the Association of Wall and Ceiling Industries of New South Wales, the Master Plumbers Australia New South Wales Association and the Metal, Roofing and Cladding Association of Australia. Your Honour, I'm here in solitary splendour in New South Wales and unfortunately I have to head off myself. I have a medical thing coming up but it will require me to leave before too long and Mr Calver will then represent the associations, if your Honour pleases.

PN33

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you for that,
Mr Warren. Now, could I indicate that our consultations to date have been variable in terms of the length of time allocated. Some of the length of time has proved too short in some cases, too long in others. I would indicate whilst everyone with immediate interest is here, in the event that we do conclude early in the building consultations the parties are free to continue to utilise the facilities of the Commission today and tomorrow if they see any benefit in terms of discussions between them and additionally I would be available to participate in any conferences if the parties thought that desirable at any time, on the basis that all parties with an expressed interest would be advised that such conferences were occurring and given an opportunity to attend and that would mean notifying those who are not here today who have expressed an interest and on the basis equally that if anything arising out of those conferences will be recorded one party or another by way of further written submissions so there is on the internet a record of anything which any other interested might have access to.

PN34

Is there any difficulty if we proceed first with Mr Warren? Is that your desire,
Mr Warren, to facilitate your - - -

PN35

MR WARREN: I have nothing in particular to contribute, your Honour, so I will just let the other parties go first.

PN36

THE SENIOR DEPUTY PRESIDENT: Very well. All right. Have the parties discussed an order? No.

PN37

MR MAXWELL: Your Honour, there hasn't been any formal discussions between the parties in regard to the order, however there has been some discussion between the unions and there was general agreement that I go first.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MR MAXWELL: And perhaps we submit it's best if we do so. Given that to date that we have not put in any written submissions, we've spent our time drafting the awards which we believe will hopefully assist the parties in the consultation phase. Your Honour, today we intend to deal with five matters. Firstly we wish to briefly outline the approach that we have adopted in approaching award modernisation and secondly, we wish to take the Commission through the provisions in our draft on site award to indicate where they have derived from and to indicate where we believe more work can be done by the parties.

PN40

Thirdly, we wish to address the Commission on the issue of NAPSAs and how we say they should be dealt with. Fourthly, to briefly deal with the proposed off site award and its coverage and the fifth matter would be our response to the submissions of the other parties. However, we believe it would perhaps be more appropriate if we did that at the end after the other parties have actually presented their submissions rather than to actually pre-empt what they may have to say.

PN41

THE SENIOR DEPUTY PRESIDENT: Very well.

PN42

MR MAXWELL: So if I can deal with the CFMEUs approach to award modernisation, in regard to award modernisation the approach we've adopted is one where we have been guided by Part 10A , award modernisation of the Workplace Relations Act. Now, the particular provisions that we have been guided by are section 576B which requires the Commission to have regard to the needs of the lower paid and the desirability to reduce the number of awards operating in the workplace relations system.

PN43

Section 576J which sets out the matters that may be dealt with by modern awards, noting that these provisions are significantly different to what original existed under the WorkChoices legislation and section 576T, which apart from the five year transitional period prohibits modern awards containing state based differences. Now, the union has also been guided by the Consolidated Award Modernisation Request, in particular, the objects which require the creation of modern awards that must provide a fair minimum safety net of enforceable terms and conditions that do not disadvantage employees, nor increase costs for employers.

PN44

Also the process which requires the creation of modern awards primarily along industry lines but which allows for occupational awards where appropriate, the requirement to have regard to the desirability of reducing the number of awards operating in the workplace relations system that modern award may contain provisions relating to the National Employment Standards, subject to limitations set out in the request and the desirability of avoiding the overlap of awards and minimising the number of awards that may apply to a particular employer or employee. Your Honour, the union - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Excuse me one moment. Yes, go ahead, Mr Maxwell.

PN46

MR MAXWELL: Thank you, your Honour. Your Honour, the union would also indicate that we have approached award modernisation with the intent of using a process to improve the conditions of workers covered by the existing awards as we believe that that is inconsistent with the Award Modernisation Request and was significantly bogged down in the process with unnecessary claims and counterclaims. At the same time we did not expect the employers to use the process to reduce conditions. Unfortunately it would appear that some employer organisations can't help themselves and have approached award modernisation as a cost cutting exercise.

PN47

This is disappointing and a regrettable distraction given the short timeframes involved. The other significant factor in our approach to award modernisation is the way in which we have dealt with the issue of parties to awards. Our experience of the award modernisation to date is that there has been an elephant in the room stifling the process. This elephant of course is the dreaded issue of demarcation. There is no denial if awards under the old system were used as demarcation tools to try and restrict coverage of the employees of the employer to a particular union and also to use awards to restrict a union's right of entry.

PN48

Our understanding of the new system is that the roles of the parties have changed, that awards are being created using the corporations powers and that there is no requirement on the Commission to even name organisations as being covered by awards and we note that that's not reflected in the provisions of Part 10A results are provided in the Bill that was introduced into parliament last week by the Minister. Now, in line with this understanding the awards that we have proposed are not named along demarcation lines and we do not seek to limit the organisations being covered by an award.

PN49

Commissioner, if I can turn to the second area that we wish to raise with the Commission, that being the draft Construction Related Industries Award 2010 that we submitted to the Commission. We submitted that draft award on 31 October this year. This draft award an attempt to consolidate all the federal awards listed by the Commission under the Building, Metals and Civil Construction Industries Group. The only exception was the National Joinery and Building Trades Products Award which I will deal with later.

PN50

Now, your Honour, the list of relevant awards are contained in that first group on the Commission's website and they included the Asphalt and Bitumen Industry New South Wales and ACT Award 1999, the Asphalt and Bitumen Industry Queensland Award 2000, the Asphalt and Bitumen Industry Southern States Award 1999, the Asphalt and Bitumen Industry WA Award 2000, the Australian Workers Union Construction and Maintenance Western Australia Award 2003, the Australian Workers Union Construction and Maintenance Award 2002, the Australian Workers Union Construction On Site and Civil Engineering ACT Award 1999, the AWU Commercial Landscaping Award 2001, the AWU Geomembrane and Geotextile Installation Award 2003, the Building and Construction Industry ACT Award 2002, the Building and Construction Industry Northern Territory Award 2002, the Construction Industry Sector Minimum Wage Order Victoria 1997, the Mobile Crane Hiring Award 2002, the National Building and Construction Industry Award 2000, the National Metal and Engineering On Site Construction Industry Award 2002, the Roof Slaters and Tilers Victoria Award 2002, the South Australian Civil Contracting Industry Award 1999 and the Western Australian Civil Contracting Award 1998.

PN51

Now, they are the awards that our draft award was based on and I should point out that it wasn't based on any of the Electrical Contracting Awards, nor was it based on any of the Plumbing Awards. Now, your Honour, we say that that group of awards is an appropriate starting point given the way in which the majority of these awards have been treated by the Commission in the past. In my experience of over 17 years of varying Building and Construction Awards in the Commission the awards have traditionally been treated as a family of awards with the National Building and Construction Industry Award setting the benchmark. Therefore there is a significant uniformity of conditions.

PN52

Now, your Honour, since submitting the original draft we have considered to what extent the award could be further refined and state differentials removed. Now, on Friday we submitted a second version of the draft Construction Related Industries Award 2010 and that is a version I wish to take the Commission through. Now, for those that may have not seen that version I can indicate where the changes have occurred.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN54

MR MAXWELL: Your Honour, in the version 2 the most significant change on the first page is that we have sought to introduce a new part 5 which we have called allowances and then grouped all the allowances under that part. We believe that it's consistent with the Award Modernisation Request. Your Honour, in regard to clause 1, the title, we have put forward the name of the Construction and Related Industries Award 2010. So far we're unaware of anyone actually opposing that name but again that is an issue that if necessary we are prepared to discuss with the parties. In regard to clause 2, commencement, 2.1 is straightforward. 2.2 seeks a protection that nothing in the award to operate to reduce the wages or conditions for an employee who are in existence prior to the commencement of the award.

PN55

In regard to clause, definitions, the first point I'd make is that we have not included definitions of classifications or occupations. As you will be aware the National Building and Construction Industry Award contained approximately five or six pages of definitions of classifications. I believe that these days most people know what a carpenter is, most people know what a painter is, they know what a bricklayer is, they know what a scaffolder is because it's tied to licensing requirements, the same with riggers and so forth. We've not included occupational definitions within the award. If any of the parties think they're necessary then we submit that they could be included as a schedule to the award.

PN56

Your Honour, in 3.1 we have included a definition of the construction industry and that definition is an amalgamation of the definitions of a construction industry contained in the various awards I've previously referred to so it seeks to include the building industry, civil and mechanical engineering projects, civil construction and over the page it also deals with catering and cleaning services on construction sites and camps. We've also inserted two additional areas, those being dimension stone quarries. That was an issue that arose in the award modernisation proceedings for the quarrying industry last Friday where there was general agreement of the parties subject to any checking that dimension stone quarries weren't initially a part of the quarrying industry and traditionally they've been covered by the National Construction Award and equivalent state awards.

PN57

The other additional area of scope is the industrial spray painting and abrasive blasting industry and your Honour we'd point out that there is another group of awards listed on the relevant awards on the Commission's website which deals with the Painting Award and Industrial Spray Painting Award so we've transferred the Industrial Spray Painting Award into this group.

PN58

Your Honour, in regard to the other definitions, but I suppose the most relevant one I'd wish to take you to is the definition of related industries. Under that we have included the definition of the mobile crane hiring industry, the asphalt and bitumen industry, the commercial landscaping industry and the Geomembrane and Geotextile Installation Industry. We've included those because in some of those sectors there are some minor differences in conditions that apply and where we have sought to reflect that we have to then go back to the sector by name and that's why we've included the definitions of those areas.

PN59

I should point out that in regard to the mobile crane hiring industry, I understand that the CICA, or the Apprenticeship Council aren't here but they have put in a separate submission for a separate Mobile Crane Hiring Award. Whilst the union is obviously not opposed to that, if the Commission is of a mind that that industry doesn't warrant a separate award, then we believe that this is the appropriate place to put the coverage of that award.

PN60

THE SENIOR DEPUTY PRESIDENT: Sorry, who is advocating that position?

PN61

MR MAXWELL: The Crane Industry Council of Australia has put in a submission where they suggest there be a separate award for the mobile crane hire industry. I should point out as well, your Honour, that we have a meeting arranged with the Crane Industry Council on 11 December to further discuss the issues that we believe are relevant to them.

PN62

If I can then take you to clause 4 which deals with the application. the first point to make is - I should apologise, your Honour, because I've actually miscalculated on the numbering. There are two 4.2s in the draft that we submitted. The first 4.2 deals with the coverage, that it covers all employers engaged in the construction and related industries with respect to their employees engaged in the classifications contained in this award and to those employees to the exclusion of any other modern award. Your Honour, we make the point that seek the award being covered in relation to the classifications contained within the award. The second 4.2 deals with the exclusions about who the award does not apply to. In 4.2.2 we have provided that the award does not apply to factory, minor maintenance and shop work covered by the Offsite Construction Industry Award 2010.

PN63

Your Honour, at that point we are trying to make a clear distinction here between the various building awards. There are those building awards that cover factory work and shop work and we are seeking to put those areas of coverage into a separate award and that this award would only cover the onsite operations of employers. Your Honour, we have also included an exclusion for clerical and administrative occupations and an exclusion for electrical and plumbing contracting industries.

PN64

In regard to clause 4.4 about the coverage of organisations, we recognise that that is not a necessary requirement to include organisations covered by the award, but if the Commission is of a mind to include such a provision, then we have listed there the employee organisations and employer organisations we say should be covered.

PN65

THE SENIOR DEPUTY PRESIDENT: What is the preference of the CFMEU in that regard?

PN66

MR MAXWELL: Initially we have a preference to include a reference to the organisations covered because we believe it then helps identify the employers that may be covered and also in regard to the employee organisations, the standing of those organisations to vary awards, although we understand that under the Bill introduced into parliament any organisation who has an interest in an award can apply to vary the award so the overall effect may be somewhat limited. What we have not sought to do is exclude any organisation that has an interest in the construction industry. As long as their interest is within their constitutional coverage then there should be nothing in the award that seeks to exclude any organisation.

PN67

THE SENIOR DEPUTY PRESIDENT: Is the reference to organisation as to a federally registered organisation within the meaning of the Act presently?

PN68

MR MAXWELL: Your Honour, we have not included the transitionally registered organisations. Our understanding is that their transitional registration will cease to have effect in January 2010 so we've only sought to name those federally registered organisations.

PN69

Your Honour, in regard to clause 5, the National Employment Standards in this award, clause 6, access to award, clause 7, award flexibility and clause 8, consultation, they are all standard clauses that have been used in other awards during the award modernisation process and were contained in a number of the exposure drafts released by the Commission.

PN70

In regard to clause 9, dispute resolution, that clause is taken from the existing provision of the National Building and Construction Industry Award. It includes in 9.1(b) a definition of a duly appointed union representative and that in 9.5 that they should be allowed up to five days' paid leave per year to undertake training that will assist them in assessment of dispute roles. It's our understanding that the Minister has written to the Commission in regard to that issue and in the Minister's view that provision can be contained in an award and we would seek the existing award provision be maintained.

PN71

THE SENIOR DEPUTY PRESIDENT: What of the Board of Reference Disputes Board provision? That's obviously outside the terms of the award that's appeared in earlier draft exposure awards.

PN72

MR MAXWELL: Your Honour, the Board of Reference Disputes Board is an existing award provision of the NBCIA. My understanding is that the disputes boards have been used in Victoria. I can't recall any other states where they have been used. It may be that that is a transitional matter if it is to be retained in the Award.

PN73

THE SENIOR DEPUTY PRESIDENT: I think most commonly boards of reference have been utilised through agreements, sort of thing, certified agreements.

PN74

MR MAXWELL: It has, your Honour, but my understanding is, also in Victoria, that there's always been a reference back to the award provision in regard to the disputes clause and the Board of Reference provisions.

PN75

If I can then deal with clause 10 which deals with employment categories. As you will be aware the Construction Awards have been a mixture of both daily hire and weekly hire employees so we've concluded that employees are employed as either daily hire employees or fulltime weekly hire employees or part time weekly hire employees or casual employees. I should point out that in regard to part time weekly hire employees, the union is generally of the view that we don't believe that a part time clause is necessary, however, if the Commission is of a mind to include a part time clause, then the provisions set out in 10.5 we believe adequately address the requirements to protect employees. The provision is based on existing award provisions where part time work exists. As far as we're aware, there is nothing that is substantially difference to other awards that the Commission has made in regard to part time work.

PN76

In regard to 10.6, casual employment, that is the retention of the existing provision contained in the National Building and Construction Industry Award and it includes in subclause(g) the relevant penalty rates that apply to casuals where they work overtime or on weekend work. I know that some awards that have been submitted to the Commission have omitted those provisions. 10.7, present at work but not required, again is an existing provision which mainly affects daily hire employees but can also affect casuals,

PN77

In regard to clause 11.2 termination of employment, weekly hire employees, that is a standard clause that has been produced by the Commission in a number of the exposure drafts in the priority round.

PN78

If I can then deal with clause 12, redundancy. Your Honour, section 64(4) of the National Employment Standards excludes employees from the redundancy entitlements for the NES where their award contains an industry specific redundancy scheme. Also paragraphs 36 to 39 of the Award Modernisation Request also deals with this issue. Paragraph 39 identifies the factors that the Commission may have regard to in determining whether a particular redundancy arrangement constitutes an industry specific redundancy scheme. Paragraph 39 states the follows:

PN79

In determining whether particular redundancy arrangements constitute an industry specific redundancy scheme ...(reads)… is an established feature of the relevant industry.

PN80

Your Honour, in clause 12.2 we have provided an industry specific redundancy scheme for the constructio9n industry. I perhaps don't need to take your Honour through the history of the redundancy provisions in the various Building and Construction Industry Awards but they've had a tortured history as far back as 1989 and perhaps prior to that but we say that the provision that was contained in the National Building and Construction Industry Award pre-Work Choices, it was a well established scheme that has operated in the industry for some 18 or
19 years. We say that the Award Modernisation Request clearly gives the power to the Commission to include an industry redundancy scheme where they see it as being appropriate.

PN81

THE SENIOR DEPUTY PRESIDENT: Does that scheme extend across each of the award you listed at the outset of your submission?

PN82

MR MAXWELL: Your Honour, with the exception which I'll come to, the building industry redundancy scheme is a feature of the overwhelming majority of those awards, including the Building and Construction Industry ACT Award, the AWU Civil Construction and Maintenance Award, the National Building and Construction Industry Award, the Building Construction Industry Northern Territory Award, also contains the clause. The only exceptions that we're aware of are the Mobile Crane Hiring Award and you'll note this in 12.3 we have included industry specific redundancy scheme, that's the mobile crane hiring industry. The main reason we've included that one is because the scheme is substantially greater than the NES in that the payments which are contained in 12.3.3(a) provide for three weeks' pay each year of service. That has been a feature of that award since the creation of the Mobile Crane Hiring Award and that provision went through the award simplification process as being recognised as the minimum conditions for that sector.

PN83

Your, 12.4 of our award also deals with the redundancy provisions for the asphalt and bitumen industry, the commercial landscaping industry and the Geomembrane and Geotextiles Installation Industry. I understand that in those awards the NES would apply except to the extent that those awards provided for redundancy pay for employees employed by small business and that is why that provision is there for those employees covered by those sectors.

PN84

That is the way in which we've attempted to deal with the issue of redundancy across the industry so for the majority of the construction industry we have the industry specific scheme and for those other sectors, the related industries, which are the mobile crane hiring industry, asphalt and bitumen, commercial landscaping and geomembrane, we have inserted the additional provisions where they're relevant.

PN85

THE SENIOR DEPUTY PRESIDENT: Those provisions applied pre - what was the date, 2004?

PN86

MR MAXWELL: The Mobile Crane Hiring Industry Award did. I would have to check in regard to the other sectors.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, if you wouldn't mind doing that. I don't want to interrupt, but I wonder if you could perhaps provide a written copy of that list of awards comprehended within this award at some point and I'll mark it for the purposes of these consultations CFMEU Construction Industry Consultations 1.

EXHIBIT #CFMEU1 CONSTRUCTION INDUSTRY CONSULTATION 1

PN88

MR MAXWELL: Your Honour, if I can then next turn to the classification and wage rates. In clause 13 it deals with the wage rates for the construction industry. Clause 13.1 includes the classification structure. The point we would make is that given the way in which the Building and Construction Industry Awards have been treated as a family, you'll find that the classification structure in concerns of the wage rates, applying to each level are, with one minor exception, common across the industry so the weekly rates for a construction worker or CW2 is the same as that in engineering construction work level 2 and so forth. The only difference is the engineering construction worker level 9, there is no level 9 contained in the National Building Construction Industry Award or the AWU Civil Constructing Awards but there is under the MECA Award. Your Honour, I haven't included the weekly rate there because I wasn't sure exactly what that rate should be, given that there has been no variation to the transitional version of the award and would have then rely on perhaps the wage scales produced by ….. that we are highly sceptical of, so we will perhaps leave it up to the other unions to devise the appropriate rate.

PN89

Your Honour, in 13.2 we have dealt with the way in which the hourly rates are calculated, that there are existing provisions from awards. 13.2.1 deals with the daily hire of employees via job loading calculation. 13.2.2 deals with week for hire employees. In 13.3.1 we have then inserted a table of the hourly rates for the translated classifications. Your Honour, I point out that the difference between version 2 and version 1 is that we have sought to remove the State based differences. Your Honour, the only significant difference is that under the Construction Award there is a special allowance that forms part of the wage rates. In New South Wales that rate was $7.25 per week. In the other states it was $7.70 per week. So in calculating a wage rate we have sought to remove that State based differential and used one rate of $7.70 in a calculation of the hourly rates. I should point out that we have included the rate for New South Wales in the transitional provisions which are contained in part 9 of our draft award.

PN90

THE DEPUTY PRESIDENT: You set out the definitions of National Building Construction Schedule B, is that correct?

PN91

MR MAXWELL: Yes, your Honour, if I can take you to schedule A.

PN92

THE DEPUTY PRESIDENT: Sorry, schedule A and B, yes.

PN93

MR MAXWELL: Schedule B starts on page 157 and schedule A starts on
page 140. Now, your Honour, in regard to those classifications, in regard to the construction of your classifications, those provisions are exactly the same in both the National Building and Construction Industry Award and the AWU Civil Construction and Maintenance Award. The only slight difference being the reference to the plant being covered by those separate groups. What we have sought to do is to combine those divisions, so that you will see, if I can take you to Construction Work level 1 on page 143, you will see at 1.3.184 that the CWU classification incorporates the following broad banded award classifications. The mess attendant and camp attendant actually come from the Building and Construction Northern Territory Award, as does the cook's offsider and the work boat driver.

PN94

The rest down the mobile concrete pump hose man or line hand coming from the National Building and Construction Industry Award, and then the other dot point in those classifications come from the AWU Civil Construction and Maintenance Award. So it's just a clear marrying of the two provisions, and that is the only difference between the two awards in regard to classification structure is what is included under those broad banded groups. I should point out, your Honour, that the National Building and Construction Industry Award, as I think you will be well aware, was the first award that included the award restructuring provision of the family of Building Awards. When the AW Civil Construction and Maintenance Award was also varied to include the relevant provisions. Discussions took place between the CFMEU and the AWU, given the overlapping coverage of the awards to ensure that the classification structures in both awards are the same and that is why you have that degree of commonality.

PN95

THE DEPUTY PRESIDENT: Mr Maxwell, apart from specifying the hourly rates which would be included in column 13.1, there's 13.3.1 is you propose to serve any purpose not already served by schedule A or B?

PN96

MR MAXWELL: Your Honour, we have included those hourly rates to give people certainty as to what the rates should be, because if you calculate the hourly rates in accordance with 13.2.1 and 13.2.2 there are different allowances that are included in the all-purpose rates of pay. So, for example, if we take the carpenter-diver to begin with, the carpenter-diver in addition to the base rate based on the CWAs they also have their wages made up of an industry allowance and a tool allowance which is paid for the purpose of the award and there is a divisor of 31 rather than 38 to calculate the hourly rate based on the requirements of diver. Whereas with some of the operator classifications, of course, they don't have a tool allowance as part of their all purpose rate of pay. Then of course with the trades classifications you have different levels of tool allowance which are further reflected in the award because the tool allowance for a painter is less than the tool allowance for a carpenter and so forth. So that is why we put in the hourly rates of pay to make it more apparent and clear as to what the actual rtes of pay should be.

PN97

THE DEPUTY PRESIDENT: So the heading is misleading in the sense it's more than the translation, it's the incorporation of the allowances hours differences where they exist in calculating the hourly rate.

PN98

MR MAXWELL: That's correct, your Honour, and it may be that that sub-clause should be renamed actual hourly rates and remove the reference to the translated classifications.

PN99

THE DEPUTY PRESIDENT: Yes, thank you.

PN100

MR MAXWELL: Your Honour, you will note that I have included the classifications from the Engineering Construction worker which are set out in schedule B and inserted them in the appropriate positions in the classification structure and again I have not included the hourly rates, I will leave that up to others to suggest what those rates should be. Your Honour, I have raised the issue of the special allowance which is contained in 13.4 and you will see that I have only included the one rate of pay which is to remove the State based differential. The other allowances contained in 13.6 onwards are allowances which form part of the all-purpose rate of pay for relevant classifications, so they include the leading hands allowance, the four persons sub-floor personal allowance, the in charge of plant allowance.

PN101

Your Honour, if I could perhaps stop at 13.10 which deals with the issue of piece work. In the awards under consideration there are two awards that contain detailed piece work rates. One was the Roof Slate and Tilers Victoria Award and the second was the wall and floor tile of piece work rate which is contained in the National Building and Construction Industry Award. Your Honour, in our original draft we included those rates in the wage rates. On reflection, given that they are State based rates, for want of a better term, we have suggested that we put in a more general provision that deals with the issue of piece work and the provision we have suggested is that engagement on a piece work basis may be entered into provided the employee should be paid not less than the equivalent hourly rate of the classification set out in 13.3.1 and all the conditions of employment described in this award shall apply.

PN102

We feel that that perhaps deals with the issue of piece work in a more succinct way. However, to ensure that employees are not disadvantaged we have included the relevant rates in the transitional provisions which would remain there for a period of up to five years, and perhaps is an issue that needs some further discussion between the parties about how we deal with those relevant piece work rates. Your Honour, the rest of the allowances in clause 13 are all-purpose rates and I don't intend to dwell on those at this stage. In regard to clause 14 which deals with the wage rates for the Mobile Crane Hire Industry. Your Honour, we have deleted them at this stage because the existing wage rates under the Mobile Crane Hire Industry Award have two parts. You have one set of wage rates for New South Wales and you have another set of wage rates for the other States.

PN103

Also, the wage rates within that award have not gone through I suppose - have not been established on a proper basis based on the 1989 wage fixing principles. That is a matter that we wish to discuss with the Crane Industry Council on 11 December. We are hopeful that we will be able to come up with a new properly structured classification structure and that will then be inserted under clause 14. We would, however, maintain in the transitional provisions the existing wage rates which you will see later on that we kept them in the award. In regard to clause 14.2 which deals with Asphalt and Bitumen Industry. On our consideration of the relevant awards, again our understanding was that there was not an established national classification structure for that sector, so we have not sought to include one here.

PN104

That again is an issue that perhaps needs further discussion between the parties on the provision to be inserted. In regard to the commercial landscaping, that is taken from the Commercial Landscaping Award. The only slight issue we would raise is that perhaps the rates need checking to see whether they relate to increases. The same goes with that division of the Geomembrance and Geotextiles Installation Industry. Your Honour, the first version of our award includes a division for junior labour, however, because they only apply to South Australia is therefore a State differential and we have removed it from the main body of the award and inserted it in the transitional provisions. Our understanding is that in regard to the other awards being considered that there was no provision for the junior rates of pay and we do not support it as being appropriate for the industry.

PN105

Your Honour, on that score I would just raise that one of the first submission that I think was submitted to the Commission dealing with the Construction Industry was the submission on behalf of a company called I think it was CPT Roofing Pty Ltd and the basis of their submission was that they sought the inclusion of junior rates of pay for young people working, placing roof protection on building. Your Honour, our understanding is that young people under the age of 18 are now allowed by law to place roof protection on buildings because there is a general requirement that you need to have a scaffolding ticket and therefore we reject their submission that junior wage rates are appropriate for that part of the industry.

PN106

Your Honour, clause 16 of our draft award deals with apprentices and this is perhaps the most problematic area that needs to be dealt with in the Building and Construction Industry group. You will see - - -

PN107

THE SENIOR DEPUTY PRESIDENT: I think it goes beyond Building and Construction, the one thing that is evident presumably reflecting the State regulation of apprenticeship training is that there is a considerable diversity in apprentice arrangements, including wages across States in most industry sectors.

PN108

MR MAXWELL: There is, your Honour, however you will see that from
page 27 to page 42 it deals with apprentices in other than the Metal and Engineering Trades, that was from page 42 to 48. Now, our understanding is that the apprenticeship provisions in regard to the Metal and Engineering Trades, they do have a national rate or an agreed national provision. That is not the case in the rest of the Building and Construction Industry. Whilst the union had attempted to address that issue with an application to vary the National Building Award back in 2005 unfortunately that application was stymied by the introduction of the WorkChoices legislation. However, that is an issue that we believe needs further discussion with the parties.

PN109

We see two options. The first is to put in the one set of apprentice wage rates and then deal with the State differences in the transitional provisions. The second is to leave in the existing conditions from the States then we would deal with this post the making of the modern awards in January 2010. We don't think either proposal is satisfactory and in some regards it is a pity the parties haven't paid more attention to this issue in the past, however, we believe that there is quite clearly a need to set properly fixed apprentice rates for junior apprentices for want of a better term, and to also insert provisions that deal with adult apprentices for our industry. We believe that is of particularly importance given the skill shortages that have been experienced by the industry. As you can see those apprentice provisions make up a substantial part of the draft award that we have submitted.

PN110

Your Honour, if I can then go to the next section or clause of our award which is 417 which deals with trainees. Clause 17.1 deals with civil operations traineeships. That clause was contained in both the National Building and Construction Industry Award and the various AWU Civil and Construction Awards, that the traineeship provision has been in there for approximately 10 years in both awards. The provisions are virtually identical. We would point out that in clause 17.1.4E we have removed any State based differentials in terms of the wage rates. I point out that the only difference was in the rate of the special allowance which was that the old hang on from the separate rate of New South Wales, we have removed that and that clues would then be so common across the whole of the industry to the extent that it conserves Civil Operations Traineeships.

PN111

THE SENIOR DEPUTY PRESIDENT: These are different from the National Training Wage Trainee.

PN112

MR MAXWELL: Your Honour, it is significantly different in that we have only included one set of wage rates so the percentages were initially based on the total wage rate of the CWU3 or trade equivalent classification, the 100 per cent level, and that is where the 68 per cent, 78 per cent and 90 per cent applied. To that extent, your Honour, the wage rates are significantly higher than the National Training Wage Award and we seek that those rates be maintained.

PN113

I should also point out that there was an issue that arose in the Full Bench proceedings in regard to wages about whether the full amount of the wage increase was applied to trainees or a low amount and the Full Bench decided I think in 2006 that 80 per cent of the wage increase would be applied to those rates and that is the basis of the calculation.

PN114

THE SENIOR DEPUTY PRESIDENT: To each of those rates?

PN115

MR MAXWELL: To each of those rates, yes.

PN116

THE SENIOR DEPUTY PRESIDENT: Which were ultimate percentage?

PN117

MR MAXWELL: No, the fixed amount, so if the increase was $20 and 80 per cent was 16, then $16 would apply to each one of them.

PN118

THE SENIOR DEPUTY PRESIDENT: Which would alter the relativity.

PN119

MR MAXWELL: Which would alter the relativities. Your Honour, the relativities both under the traineeship provisions and under the - - -

PN120

THE SENIOR DEPUTY PRESIDENT: Wages provisions.

PN121

MR MAXWELL: The wages provisions do not line up with the original relativities. At this stage, your Honour, we have not sought to restore those relativities as part of the process.

PN122

THE SENIOR DEPUTY PRESIDENT: At this stage.

PN123

MR MAXWELL: Because we believe that that would be against the award modernisation request in placing additional costs on employers.

PN124

THE SENIOR DEPUTY PRESIDENT: A fair chance the Full Bench might agree with you on that.

PN125

MR MAXWELL: Your Honour, we suggest that that may be an issue that will be addressed in the four yearly review awards if the new bill becomes legislation. Your Honour, in regard to clause 17.2 which deals with certificate 1 and certificate 2 traineeships, those wage rates are based on the existing provisions under the National Building and Construction Industry Award. The current award refers to skill level A and skill level B, we have sought to update that by reference to certificate 1 and certificate 2 which has a more general understanding of the wage rates. I should also point out that those wage rates are based on the highest wage rates under the National Training Rate Award for skill level A and skill level B. But it is our general submission that this award not refer to the National Training Rate Award, that any training arrangements needed for the industry to be inserted in the industry award.

PN126

Your Honour, the next provision that deals with skill based trainees, again that is an existing provision from the NBTIA and was inserted as part of the safety net review proceedings. Your Honour, if I can then turn to clause 18, superannuation. Your Honour, that clause is based on the existing position of the NBTIA. It includes a definition of award or time earnings and we do so on the basis that although the superannuation legislation was amended to - on advice from the Tax Office was amended to further clarify what is covered by ordinary time earnings, there are some provisions contained within that definition which could be seen as being in excess of the legislative requirements. So the extent that they constitute an existing safety net of employees covered by these awards, we seek to retain them.

PN127

THE SENIOR DEPUTY PRESIDENT: What illustrations are those?

PN128

MR MAXWELL: The main issue there is the fares and travel allowances. This matter went through a lengthy proceeding before the Commission and essentially the Taxation Office decided that because the fares and travel allowance was part of the combination of a reimbursement and a payment for time, that it will constitute part of ordinary time earnings. Whereas generally under the Tax Office Guidelines reimbursement allowances are not considered as part of ordinary time earnings. So we see if it is worthwhile retaining that provision to ensure that there is no confusion and that no employers then become liable to make payments under the Superannuation Guarantee Charge Act.

PN129

Your Honour, in 18.4.1 we have included a list of default funds. Your Honour, those funds are the ones that exist under the current award clauses. However, we understand that some of those funds have amalgamated and changed their name and we may need to review the list that is contained there. We are also mindful of the various submissions by AMP, ING and a number of other organisations with an interest in superannuation. We say that only the schemes that are either mentioned in the national awards should be included with that provision. Clause 18.5 deals with absence from work and again they are provisions that are in addition to the requirements of the superannuation legislation. They are a feature of the superannuation clauses of the various Construction Awards ever since superannuation was inserted into these awards and we say they should be maintained as part of the safety net.

PN130

THE SENIOR DEPUTY PRESIDENT: Are there any exceptions amongst that list of awards?

PN131

MR MAXWELL: I would have to check, your Honour, but not to my knowledge. Clause 19 deals with payment of wages, again that is a standard or existing provision from the National Building and Construction Industry Award.

PN132

THE SENIOR DEPUTY PRESIDENT: What does 19.8 contain that isn't required by the Act?

PN133

MR MAXWELL: If your Honour - I think I would have to go back and check that.

PN134

THE SENIOR DEPUTY PRESIDENT: But it does contain additional matters?

PN135

MR MAXWELL: I am saying it does in regard to the employees long service registration number, the annual holiday payments and payment due on termination and in terms of roistered day off accumulation and payment for public holidays.

PN136

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN137

MR MAXWELL: Your Honour, part 5 deals with allowances. The opening of that part we have included a provision for the adjustment of monetary allowances at special rates. What we are proposing is that all wage related allowances including at special rates be expressed at the standard rate. I should point out, your Honour, at this stage that in drawing up these draft awards we have not spent the time recalculating all the wage related allowances at a percentage of the standard rate, but we recognize that that work needs to be done but we have only included the actual monetary amounts at this stage. But we recognize that in line with the proposals and the Priority Awards that we see no problem in changing all the wage related allowances to a percentage of the standard rate.

PN138

We do see a problem with the expense related allowances which have been adjusted by a different formula. Traditionally they have been adjusted based on movements and the relevant consumer price index and we would seek that that situation continue and your Honour we would seek to rely on the submissions we made in regard to the Priority Awards in stage 1 in regard to the adjustment of allowances, as to why expense related allowances should still be adjusted in accordance with the Consumer Price Index. Effectively, your Honour, that submission outlined that if you look at the historical variation of allowances going back some 20 years that there had been a far greater increase using the CPI figures for expense related allowances than if you used the increase that were granted up through wage increases.

PN139

THE SENIOR DEPUTY PRESIDENT: Not in relation to the tool allowance given the advent of Chinese tools that now predominate through the Consumer Price Index measures.

PN140

MR MAXWELL: Your Honour, we have also sought to include here a method for the rounding off of allowances. In my experience when allowances have been adjusted over the years there has always been a debate as to how you round off the various allowances, what we are proposing is that if an allowance is paid on an hourly basis we can round it off to the nearest cent. If it's paid on a per day basis that it be rounded off to the nearest five cents and if it's paid on a weekly basis then it be rounded off to the nearest 10 cents. We say that is the traditional way that we have approached the adjustment of allowances. It would probably be worthwhile to insert into an award to make it quite clear - - -

PN141

THE SENIOR DEPUTY PRESIDENT: Is the rounding off provision required in these days of computerized payrolls?

PN142

MR MAXWELL: Well - - -

PN143

THE SENIOR DEPUTY PRESIDENT: And frankly it doesn't much matter as to outcomes because of swings and roundabouts and I think over the long term wouldn’t matter much.

PN144

MR MAXWELL: Your Honour, my experience of computers and rounding off is unless you close off the calculations at the end of each adjustment, if you have a range of spreadsheets that seek to flow on the calculations that you do end up with rounding errors, so we believe it is relevant to put in a provision to say that you - - -

PN145

THE SENIOR DEPUTY PRESIDENT: If you didn't have rounding you wouldn’t have rounding errors presumably.

PN146

MR MAXWELL: It depends who is putting in the information your Honour.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes, I guess the other consideration with EFT is it necessary to have pay going to the nearest 10 cents or 5 cents for the ease of making up pays? I don't think it's a major issue, frankly if that's all that concerns me in this industry I'll be surprised.

PN148

MR MAXWELL: Your Honour, I won't press the issue. Your Honour, clause 20.1 deals with industry allowance, 20.2 underground allowance, 20.3 tool of an employee protection allowance. Your Honour, they are all existing clauses. The industry allowance and the underground allowance are common divisions across the awards. The tool allowance of course is specific to those awards that contain trades, and the rest of 20.3 are existing provisions from the National Building and Construction Industry Award. Clause 20.4 deals with multi-storey allowance and again that is a fairly standard provision across the relevant awards. If I can turn to 20.5 that deals with district allowances. Your Honour, these are existing provisions of the award. We understand that there is some debate about whether district allowances should be included. We are aware that the Minister has sought to address the issue in written submission to the Full Bench dealing with the Priority Awards and our understanding is that they have submitted that
section 576T(1)(b) that,

PN149

The government requests that the Commission note that this provision does not necessarily prevent or limit a modern award from including an allowance for disabilities associated with the performance of work in particular locations, e.g. remote location allowance or tropical allowance.

PN150

That is found in paragraph 77 of the Minister's Submission. So, your Honour, we say that those allowances can be contained within the award, however, we do note that in regard to the district allowances in 20.5 that we are not talking about large amounts and it may be that those allowances could be amalgamated into a more common provision. Again, that is we believe an issue that perhaps the parties can discuss further.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, if you look at Queensland and other than the northern division of the western district it's $1.50 a week and one wonders whether there is much at all by way of building activity west of the 144 degrees of east longitude where the amount is a little larger.

PN152

MR MAXWELL: Your Honour, not being from Queensland it is perhaps best that I don't comment on that. I leave it up to others who have a better knowledge than myself.

PN153

THE SENIOR DEPUTY PRESIDENT: I have no idea where that line will lie.

PN154

MR MAXWELL: Your Honour, in regard to clause 20.5.6 which deals with Leigh Creek, that is an allowance taken from the AWU Civil Construction and Maintenance Award. In regards to 20.6, location allowance Western Australia, again they are a common provision across the family of building awards. We say they are relevant because they are sought to provide some compensation living in remote areas. Having been to Karratha in Western Australia I am aware of the additional costs in terms of both petrol and normal goods and services and indeed housing that one finds.

PN155

THE SENIOR DEPUTY PRESIDENT: Is there anywhere to drive to from Karratha?

PN156

MR MAXWELL: You can drive to Port Hedland and I think there is one or two of the other towns there that are within a 200 kilometre radius but not many.

PN157

THE SENIOR DEPUTY PRESIDENT: There's no Northern District allowance?

PN158

MR MAXWELL: No, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Sorry, Northern Territory.

PN160

MR MAXWELL: Sorry, your Honour, I should apologise, currently the Building and Construction Industry Northern Territory Award is not included in the Commission's list as being part of this group. My understanding is because it seems to be part of the Northern Territory group.

PN161

THE SENIOR DEPUTY PRESIDENT: What is your view on that?

PN162

MR MAXWELL: Our view on that is to the extent that it provides an allowance for working in the Northern Territory and it's consistent with the principles on which the other allowances are paid it should be included.

PN163

THE SENIOR DEPUTY PRESIDENT: What is the CFMEUs view about bringing that award within the Building Industry?

PN164

MR MAXWELL: We support the inclusion of that award within this group.

PN165

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Calver, is there any difficulty if we turn Sydney off at this stage, it appears you are representing Mr Warren's interests at the moment.

PN166

MR CALVER: Your Honour, I have no instructions about that but I think that if it saves the Commission money and time then yes, let's turn it off.

PN167

THE SENIOR DEPUTY PRESIDENT: Very well. No doubt if he or anyone else arrives and is wondering they will contact Registry. Yes, thank you.

PN168

MR CALVER: Thank you.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead Mr Maxwell.

PN170

MR MAXWELL: Thank you, your Honour. Your Honour, clause 20.7 deals with the first aid allowance. Again, that's a common provision as is 20.8 laser operation allowance. As is 20.9, meal allowance. 20.10 deals with compensation for clothes and tools. 20.11 caravan allowance is a common division. 20.12 accident pay, that is a common provision, although there is a slight variation I think with Mobile Crane Hiring Award in that it is paid for 52 weeks under that award, not 26. In regard to accident pay, your Honour, again we would rely on the submission of the Minister in authority, it is dealt with the issue of accident pay in paragraph 74 onwards.

PN171

THE SENIOR DEPUTY PRESIDENT: Perhaps suggesting that the benefit be retained for those who had it.

PN172

MR MAXWELL: We suggest it be retained for those that had it and those who will get it in the future.

PN173

THE SENIOR DEPUTY PRESIDENT: I was talking more about some NAPSAs which don't appear to have a similar provision here, is that true of the Building Industry?

PN174

MR MAXWELL: Not to my recollection. There may be some but my understanding is the majority of NAPSAs are State counterpart awards and therefore there is a high degree of commonality of the condition but I will just check on that. We understand that there are also some differences in terms of state legislation dealing with Workers Compensation.

PN175

THE SENIOR DEPUTY PRESIDENT: And that may well explain the difference in State industrial instruments in how they deal with accident pay, if at all. I know, for example, there are some New South Wales NAPSAs which under an accident pay provision simply direct you to the State Workers Compensation legislation and presumably do the same work as this in relation to other States with less beneficial Workers Compensation provisions. If there is anything further you can add on that that will be appreciated, Mr Maxwell.

PN176

MR MAXWELL: Your Honour, I'll have a look at that and get back to you. Your Honour, clause 21 deals with special rates. They are all the special rates that are currently contained within the various awards and from clause 21 - - -

PN177

THE SENIOR DEPUTY PRESIDENT: How far does some of these allowances overlap with the industry allowance, for climatic conditions when working in the open on all types of work as against a hot work or a cold work allowance?

PN178

MR MAXWELL: Your Honour, perhaps dealing with hot and cold work, those provisions are where the temperature is raised by artificial means in regard to hot work and the same in regard to cold work. So if it's someone's working in a cold store.

PN179

THE SENIOR DEPUTY PRESIDENT: So it's not climatic conditions?

PN180

MR MAXWELL: So it's not climatic as such, no.

PN181

THE SENIOR DEPUTY PRESIDENT: Yes. Work as against sloppy and muddy conditions?

PN182

MR MAXWELL: Sorry, your Honour, which one are you referring to?

PN183

THE SENIOR DEPUTY PRESIDENT: Wet work as against sloppy and muddy conditions within the industry allowance, albeit at the initial stages of erection of a building.

PN184

MR MAXWELL: Your Honour, we say that the wet work is an additional provision to the work in sloppy conditions. It's where the water is continually dripping so it's different to the general provisions of work on a muddy site.

PN185

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN186

MR MAXWELL: Now, your Honour, in regard to all those special rates, it has been raised by some of the parties that perhaps those special rates could be consolidated and perhaps a new rate of industry allowance struck. Your Honour, that is not an issue we've put our mind to, however we are prepared to sit down with the parties and to further discuss that as long as we can ensure that workers are not disadvantaged by the outcome. Now, in saying that we're not going to - we recognise that there may be swings and roundabouts of a sense here and a sense there but in terms of the overall provision it is our concern about not being disadvantaged.

PN187

However, we wouldn't see that applying to some of the allowances like swinging scaffold, towers allowance, toxic substances and heavy blocks because there's a number of those that only have particular application to certain workers.

PN188

THE SENIOR DEPUTY PRESIDENT: What's a cofferdam worker?

PN189

MR MAXWELL: Your Honour, I will leave that up to the AWU to - - -

PN190

THE SENIOR DEPUTY PRESIDENT: Is that a dam, a place?

PN191

MR MAXWELL: No, my understanding is it is a type of worker that is either done under air pressure or not under air pressure.

PN192

THE SENIOR DEPUTY PRESIDENT: I see.

PN193

MR MAXWELL: And that is why there is a different rate of the allowances. But as I was saying, those allowances from 21.1(4)(b) onwards are the additional allowances that are found in the AWU Civil Construction Awards.

PN194

THE SENIOR DEPUTY PRESIDENT: Yes.

PN195

MR MAXWELL: Clause 22 deals with mixed functions and how the different provisions apply. Basically for tradespersons and labourers is based on if you're engaged more than two hours then you get paid the rate for the rest of the day. If it's less than two hours it's just for the hours worked, whereas with operators it's normally the higher rate for the full day but there are also special provisions that apply for carpenter-divers which we seek to retain. Your Honour, clause 23 deals with inclement weather for daily hire employees and I note that there's been some objection raised to that clause I think by the Master Builders Association. I would seek to respond to that once they have made any submissions.

PN196

THE SENIOR DEPUTY PRESIDENT: Well, that involves the current clause certain steps in relation to understanding inclement weather and then some entitlement to payment, is that the - - -

PN197

MR MAXWELL: That's right.

PN198

THE SENIOR DEPUTY PRESIDENT: And the first, the commencing provision, where do they fall within modern award matters?

PN199

MR MAXWELL: Your Honour, my submission that inclement weather is both an allowance and it's also a stand down provision and we note that in the statement of the Full Bench that they dealt with the issue, whilst they didn't include stand down - if I can refer you to paragraph 33 of the award modernisation statement of 12 September 2008.

PN200

THE SENIOR DEPUTY PRESIDENT: Yes.

PN201

MR MAXWELL: In 2008 AIRCFB717, in paragraph 33 the Full Bench stated that:

PN202

We have not included clauses dealing with stand downs and exposure drafts because stand downs are provided for in sections 691A and 691B of the Act ...(reads)... can be fairly considered if necessary.

PN203

Now, we say to the extent that these deal with stand down provisions they are a unique feature of the industry in regard to payment for inclement weather for daily hire employees and we'd note that in the award simplification proceedings before Commissioner Merriman dealing with the National Building and Construction Industry Award the Master Builders Association submitted that the inclement weather provisions were a stand down and that was accepted by the Commission. So we say to the extent that they deal with a stand down that they fall within the relevant allowable matters in dealing with hours of work.

PN204

Your Honour, in 23A we've also included the inclement weather provisions for weekly hire employees. Whilst this was not necessarily a feature of the National Building and Construction Industry Award in regard to its application to operators, that those do presume that there a number of the AWU Civil Construction and Maintenance Awards and they've therefore sought to retain that provision, which mainly deals with I think completion of concrete floors and emergency work and that no employee shall be required to work exposed to inclement weather.

PN205

Your Honour, part 6 deals with hours of work and related matters. Clause 24, hours of work, that is based on the provision from the National Building and Construction Industry Award. That is a fairly standard or common provision across the awards. Clause 25 deals with breaks, again that is a fairly standard provision across the awards. Clause 26 deals with overtime and special time. We have inserted in 26.1.2 the reference to the situations in which an employee may refuse to work overtime where the hours are considered unreasonable. We believe that that is an appropriate guide to insert to assist parties with their understanding of the situations where they can refuse to work overtime.

PN206

In regard to clause 27, shift work, we have inserted two provisions dealing with shift work, one in clause 27 and the other one is in clause 28. The difference is that clause 27 deals with the majority of the construction industry and sectors covered by the proposed award. Clause 28 deals with civil mechanical engineering projects. Now, the main difference there, your Honour, is that there are different definitions of the shifts in terms of the starting and finishing times and also there are differences in regard to the loadings that apply to working on those shifts.

PN207

Your Honour, I should point out that the National Building and Construction Industry Award contained a provision that where carpenters or tradespeople working on a project where the majority of workers were covered by the Civil and Construction Award that they would adopt the shift loadings applicable under that award. So it's nothing new to include reference to provisions in regard to shift work.

PN208

THE SENIOR DEPUTY PRESIDENT: Yes.

PN209

MR MAXWELL: Your Honour, clause 29 deals with weekend work. Again that is a fairly standard provision from the Construction Awards, including the payment of overtime and on Saturdays at time and a half for the first two hours and double time thereafter and so forth and also the requirement for and minimum number of hours paid at the overtime rates. Your Honour, part 7 deals with leave and public holidays. In regard to clause 30, annual leave, now, we recognise that annual leave is one of the matters dealt with by the National Employment Standards. The clause that we have put forward contains additional and supplementary provisions. Your Honour, that clause is taken from existing provisions of the National Building and Construction Industry Award and in particular the additional provisions deal with the method of taking leave as it allows for close downs over the Christmas/New Year period.

PN210

It deals with in 30.4 the proportionate leave on termination which is based on one twelfth of an ordinary week's wages whereas under the NES it's based on the accrual, I believe, of 2.93 hours per week which is on my calculation I think one thirteenth per week. 30.7 deals with the payment when on leave and 30.7.2 the annual leave loading and what constitutes part of the annual leave loading which includes a loading on fares and travel component. 30.9 deals with annual close down and 30.10 deals with commencement of leave on distant jobs.

PN211

Your Honour, clause 31 deals with personal carer's and compassionate leave. Again this is a matter dealt with in the NES. This award provides additional and supplementary provisions. The main provision is in regard to the amount of personal leave which an employee is entitled to. Under the majority of Construction Industry Awards the rate of accrual of annual leave is one day beginning with the first 10 months in the first year and then on your anniversary date you get an automatic entitlement to 10 days. That is an entitlement that is greater than the NES under which you accrue personal leave on accrual based on your hours of work.

PN212

Your Honour, that's an issue that we've also addressed the Full Bench on in regard to the priority awards and I will rely on the submissions that we've made there. Your Honour, we have also sought to include the relevant provisions in the asphalt industry and the Geomembrane, Geotextiles Installation Industry where again they are different. I should point out that under the ACT Awards there is also a different provision again and we have sought that that be transferred to the transitional provisions given that it is a state or territory based differential.

PN213

Your Honour, in regard to compassionate leave the additional provision there over and above the NES is the entitlement to up to 10 days unpaid bereavement in respect to the death within Australia or overseas of a relation and that we say is an additional provision. Also in regard to 13.19 which deals with the payment that an employee absent on paid personal or carer's leave or compassionate leave shall receive the amount of wages the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on leave and we say that is an additional provision over and above the NES because that refers back to base rates and minimum rates of pay.

PN214

In regard to clause 32, parental leave, that refers to the NES. Community service leave, the main additional provision there is again the amounts that are paid to an employee whilst on such leave, particularly jury service. Clause 34 deals with public holidays and provides additional provisions over and above the NES, in particular the treatment of Easter Saturday as a public holiday and the recognition of Eight Hours' Day or Labour Day. We have also included those prescribed additional days in states. Now, we say that the additional day is a common feature across all states and all we are doing now is indicating which day is normally recognised as that additional day. We say that is required to maintain the safety net.

PN215

THE SENIOR DEPUTY PRESIDENT: How does that vary from the NES whether or not the additional day is gazetted or claimed in some way?

PN216

MR MAXWELL: Well, your Honour, that's where - in my submission is the NES relies on only those additional days gazetted by the state or territory government whereas under the existing awards there is an entitlement to an additional day which is an award provision and those additional days are hours out of the public holidays test case I think in 1994 which was dealt with by the Commission where they adopted one standard of 10 days I think it was across all awards and so we say that that is an existing safety net of workers covered by these awards and as such will be retained.

PN217

Your Honour, part 8 deals with transfers, travelling and working away from your usual place of work. Your Honour, clause 35 deals with living away from home distant work again. That is a clause taken from the National Building and Construction Industry Award. There are similar provisions that apply across a family of Building Awards. In regard to clause 36, the fares and travel patterns allowance, the clauses from the various building awards contain state based differentials in regard to the amount paid and the basis of its payment. Generally if one was working in the metropolitan radial areas in Western Australia, New South Wales and Victoria and Queensland it would be one rate of pay, rate on a 50 kilometre radius, although New South Wales was slightly different because it was based on the radial areas of the counties of Cumberland and Northumberland and others.

PN218

But in South Australia there was a payment based on the rate away of 30 kilometres and there is a separate rate for Tasmania based on the radius of 30 kilometres. We have sought to move those state based differences by adopting the radius of 50 kilometres which applied in Queensland, New South Wales, Victoria and Western Australia and also the current rate of $16.50. However we have inserted those other rates in the transitional provisions which recognises that there would be no additional cost to employers with the making of the award and obviously those transition provisions would then be dealt with over the five year transitional period.

PN219

The rest of that clause is fairly standard although in 36.12, which deals with apprentices, we have moved in 36.12.1 we have removed there was a provision there that said other than - sorry, except in South Australia and we have removed that state based differential. Your Honour, part 9 deals with transitional provisions.

PN220

THE SENIOR DEPUTY PRESIDENT: Sorry.

PN221

MR MAXWELL: That's a work in progress and I don't intend taking the Commission to those areas.

PN222

THE SENIOR DEPUTY PRESIDENT: Just before you go to that, clause 35 contains an inordinate amount of detail.

PN223

MR MAXWELL: There is, your Honour, and - - -

PN224

THE SENIOR DEPUTY PRESIDENT: And open area of grass must be provided, no van shall be closer than five metres to the park perimeter.

PN225

MR MAXWELL: Your Honour, we suggest that a number of those transitional provisions perhaps need further discussion between the parties about which ones are still relevant. We have only included them there at this stage to show that we are not seeking to disadvantage anyone or to increase costs of employers. Sorry, I should point out that we have included that district allowance for the Northern Territory that's on page 138.

PN226

THE SENIOR DEPUTY PRESIDENT: 138, yes.

PN227

MR MAXWELL: There is also another issue in regard to the Northern Territory, your Honour, and that is division F of the wage rates also include wage rates for truck drivers. Now, at this stage we have not sought to include those classifications within this award and again that may be an issue for further discussion between the parties as to whether they should be included or not.

PN228

THE SENIOR DEPUTY PRESIDENT: Yes. I suppose the inordinate detail is in clause 35 rather than the transitional provision, although the transitional provisions contain that as well.

PN229

MR MAXWELL: There is, your Honour, in regard to the entitlement under 35.3.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN231

MR MAXWELL: I think you're referring to in regard to the standards of camp accommodation. Again that is perhaps an area that can be discussed between the parties about reducing those provisions.

PN232

THE SENIOR DEPUTY PRESIDENT: Yes.

PN233

MR MAXWELL: And we are aware that disputes have arisen from time to time in regard to standard camp accommodation and we believe it is perhaps beneficial to include a definition of sorts within the award to prevent such disputes occurring.

PN234

THE SENIOR DEPUTY PRESIDENT: Yes.

PN235

MR MAXWELL: Now, your Honour, that is the award as our second version. Now, your Honour, an issue I'd point out is that if you take the award up until the transitional provisions, so from the start to the end of clause 36, you have an award of 104 pages. Sorry, that excludes the schedules to the classification structures. We have an award of 104 pages of which 21 pages deal with apprentices. So if the apprentices issue can be resolved we would perhaps end up with an award of 80 to 90 pages. Now, given the number of awards that that seems to consolidate we suggest that that would be a fair achievement creating one award based on this document and we'd point out that our involvement of the modern Manufacturing Award, that that award would be of a similar size.

PN236

So in terms of achieving the objectives of award modernisation we suggest that this is an achievable outcome within this industry.

PN237

THE SENIOR DEPUTY PRESIDENT: Well, if you apply to that test your off site construction draft is a minor miracle.

PN238

MR MAXWELL: Well, it is, your Honour, but there are lesser conditions that apply.

PN239

THE SENIOR DEPUTY PRESIDENT: Yes.

PN240

MR MAXWELL: Your Honour, I would also just briefly raise that there are other parts of other federal awards that we say that need to be considering with construction. Apart from the Northern Territory award there is also the Engine Drivers and Firemen's ACT Award as that award also deals with plant operators working on site. To date the Engine Drivers and Firemen's ACT Award has been considered as part of the manufacturing group in stage 1 and I think there is general agreement between the parties that that award may end up being an occupational award for engine drivers where they're not covered by another award. However, we believe there is a need to make it clear that the Construction Award would apply to those engine drivers engaged on construction work and so any additional provisions would need to be considered in any transitional provisions that apply.

PN241

Your Honour, if I can then just briefly deal with the next area, that being NAPSAs and how they should be treated. Your Honour, the CFMEU has prepared a document for the Commission which has been posted on the Commission's website that deals with our proposed allocation of construction industry NAPSAs.

PN242

THE SENIOR DEPUTY PRESIDENT: Yes.

PN243

MR MAXWELL: Now, your Honour, I don't intend spending a lot of time on this document however we think it's important because this industry when you look at the list of NAPSAs you see an inordinate number of NAPSAs mentioned under the list of awards. Now, in analysing those NAPSAs we have not sought to include any of the NAPSAs, particularly for New South Wales that are project awards, nor have we sought to include any of the NAPSAs which are in fact enterprise awards.

PN244

THE SENIOR DEPUTY PRESIDENT: Yes.

PN245

MR MAXWELL: So we've mainly dealt with the relevant state counterpart awards and other awards that apply.

PN246

THE SENIOR DEPUTY PRESIDENT: That was an issue raised by the MBA very early on, the nature of awards at that time.

PN247

MR MAXWELL: That's correct, your Honour, and we don't actually disagree with the submissions that they made that we don't take into account in determining the safety net of conditions.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes.

PN249

MR MAXWELL: Your Honour, in this document we have sought to divide the NAPSAs which in those we see going in as part of an on site award and those we see as going in as part of an off site award. So your Honour, for New South Wales you would see the Building and Construction Industry State Award, Building Crane Drivers State Award, the Gangers State Award, the General Construction and Maintenance, Civil and Mechanical Engineering, et cetera, State Award and I should correct something there, your Honour. On page 3 of that document at the bottom of that row that deals with that award there's reference to say that it's an AWU award daily and weekly hire that covers rail, I should also point out that the CFMEU is an interested party in that award and there is a website you can go to where it lists the unions and organisations that have an interest in the state awards of New South Wales and that is where that can be found.

PN250

I can provide the web address of that if anyone requires it. Your Honour, it includes the landscape gardeners, et cetera, on building and general construction and maintenance - sorry, before I go there, I should point out that that General Construction and Maintenance Civil Mechanical Engineer, et cetera State Award in the industries and core things covered includes persons attending, fuelling, greasing, cleaning and maintaining mobile station machines, cranes, winches and other mechanical equipment. The landscaper gardeners, et cetera, in building and general construction and maintenance, civil and mechanical engineering applies to all employees of private contractors within the jurisdiction of the Landscape Gardeners Industrial Committee employed on construction of major civil and mechanical engineering and building projects.

PN251

So this demonstrates that there are a number of awards that have been created at a state level that go across the various sectors for the industry and it is not an impediment to the amalgamation of awards at a state level for the creation of similar awards. And if you look at another example of the Civil Construction Operations and Maintenance General Award for Queensland which includes people engaged in accordance with bridge, walk and pier construction and maintenance throughout the State of Queensland, it applies to employees engaged in making roads. It virtually applies to anyone contracting to a local government or state government department. Again, the parties to that award include the - in this case it's the FEDFA of Queensland, the AWU of Queensland so the point we are making - and again with the AWU/CFMEU Construction and Maintenance Award in South Australia, there are number of awards of this Commission where the unions with an interest in construction have been named as parties without raising too many problems.

PN252

Your Honour, the main point we seek to glean from the list is two important points (1) there is a significant degree of overlap between the awards and the industry both at the state and federal level and secondly, it is possible to make awards covering the whole industry containing coverage provisions that include more than one union.

PN253

Your Honour, if I can briefly deal with the issue of the Offsite Award. Part of the problem we have with the Offsite Award is, although there is the mention of the National Joinery and Building Trades Products Award of the construction group, there are also sectors within the stage 2 manufacturing group which we say have a commonality which will be brought together. That is the basis on which we drew up our draft Offsite Award.

PN254

We say there are a number of work areas and industry sectors that are involved in the manufacturing of products for the building and construction industry and the provision of building trades maintenance functions that contain working conditions more aligned with the building and construction industry. In order to appropriately deal with these awards we propose an Offsite Construction Award.

PN255

The only issues I wish to briefly address, your Honour, here is in regard to the definitions we seek to cover. In clause 3 of that we deal with the definitions. The definition of offsite construction industry, this is found on page 5, means joinery work, shop fitting, maintenance, precast concrete manufacturing, prefabricated buildings in a mixed industry, stonemasonry, shop work painting, shop work sign writing, glass workers, plaster and gypsum products industry, clay and ceramics industry, particle board industry. There's also a provisions there for all working establishments concerned with the prefabrication of items, including structure for use in or in connection with building or construction. We note that to some extent that has created concern by a number of the employee organisations and perhaps it is a provision that could be deleted by the insertion of more specific identification of sectors to be covered.

PN256

THE SENIOR DEPUTY PRESIDENT: It does create an immediate overlap with some elements of the Metals Award, does it not?

PN257

MR MAXWELL: That's correct, your Honour, and I should point out that we have had some discussions with the Australian Industry Group in regard to the coverage of this award and I just seek to hand up a copy of some principles that we have reached agreement on which will hopefully - - -

PN258

THE SENIOR DEPUTY PRESIDENT: The principles may be easier than the words to make the distinction.

PN259

MR MAXWELL: Your Honour, in our discussions in order to try and assist the Commission and not hinder this process as much as possible, the AIG submissions - and the AIG will speak for themselves later on, but basically their major concern was in regard to the flow-on of the construction industry conditions to what the say are manufacturing employers.

PN260

We say there are a number of existing manufacturers of building products that are already covered by such things as the long service leave schemes, et cetera, however, we're not seeking to extend the coverage of those schemes through the award modernisation process. So to try and allay some of the concerns of the employers, these are the principles that we sought to agree on.

EXHIBIT #CFMEU2 CONSTRUCTION CONSULTATION 2

PN261

MR MAXWELL: Your Honour, in regard to the first point, the name of the award, it appears that our reference to offsite construction industry work was creating a certain angst amongst the employers. We are not fixed on that name. We are quite prepared to discuss a more appropriate name. The suggestion has been a Modern Joinery Building Trades Award. We are not necessarily totally okay with that but we are prepared to discuss it further between the parties.

PN262

In regard to point 2 which deals with the scope of the proposed award, this should be based on placed on the scope the relevant existing federal awards and NAPSAs and not on the scope of the Building and Construction Industry Improvement Act. We know that some parties have suggested it should be based on that piece of legislation which is not the position that's been adopted by the CFMEU and to the extent that that may allay any of the concerns of employer organisation, we think it important to make our position clear.

PN263

In regard to point 3, the scope of the award should be clearly defined. We believe that all awards, as far as possible, should clearly define that scope which would reduce any potential overlap.

PN264

In regard to point 4, the award may actually contain an appropriate exclusion for work carried out under the Manufacturing and Associated Industries Occupation Award 2010. Of course, that would depend on the finalisation of the scope for this award and the Manufacturing Award. I should note there that perhaps in regard to the Construction Award that I dealt with, we haven't included an exclusion in the Onsite Construction Award for the Modern Manufacturing Award because the Modern Manufacturing Award does not yet include an exclusion for the construction industry and in the scope of the Manufacturing Award there's quite clearly areas of overlap with the construction, but hopefully that matter can be resolved to the satisfaction of all parties.

PN265

The final point there is that the award modernisation should not result in an increase in scope for the portable long service leave and portable severance scheme which exists in the construction industry. Our understanding is, based on those points, we have partially agreed to further discuss the creation of an appropriate Building Trades Products Award. That is the position with the AIG. We're yet to have further discussions with the other employer organisations, although we are hopeful that they will adopt a similar position.

PN266

Your Honour, again, the document we have provided on the proposed allocation of construction industry NAPSAs, in that document from page 15 onwards we deal with those Nasals that we see being covered by - we refer there to an Offsite Award but we understand the sensitivities about the name but for identification as a group, we prefer to use that term during these consultations until we arrive at an appropriate name, but you'll see it includes Building Employees Mixed Industries Award, Joiners State Award New South Wales, the Glass ..... Offsite Award in Queensland, Building Products Manufacturing Minor Maintenance Award in Queensland. Perhaps that may be a better name to use for the offsite award as that covers all types of glass, all types of masonry work performed in a cemetery or stonemasonry workshop, et cetera.

PN267

I should point out, your Honour, that one issue that arose in the manufacturing stage 2 is the coverage of glazing. The CFMEU FFPD division have suggested that there be a separate Glazing Award whereas we have sought to include glazing within the Offsite Award. We are having further discussions internally about that matter and I understand it is the fallback position of our other divisions if the Commission isn't of a mind to accept the Glazing Award, then that work will be covered by the Offsite Award and that's why we seek to include those provisions.

PN268

Again, the Building Trades Award in WA includes brick manufacture, ceiling board manufacture, insulation materials manufacture, glass cutting, sign writing, stonemasonry, et cetera, so that is the basis on which we see an Offsite Award being covered.

PN269

Other than the identification of the additional coverage of areas such as glass workers, clay and ceramic industry, plaster and gypsum products industry, they are the additional areas that we have identified so far to be included in this offsite award.

PN270

THE SENIOR DEPUTY PRESIDENT: The shop fitting definition refers to partitions including the insertion of glass panels where the glass is
6.35 millimetres or less in thickness by various methods. What is the situation in respect to panels where the glass is more than 6.35 millimetres?

PN271

MR MAXWELL: My understanding is it then becomes the work of a glazier. You'll also find in a number of the definitions of a carpenter, we talked about carpenters inserting glass panels of up to that thickness.

PN272

THE SENIOR DEPUTY PRESIDENT: If there's concerns about the particular sections of your union, glass partitions might have thicker or slimmer glass.

PN273

MR MAXWELL: Your Honour, that is perhaps an area again we can look at about whether that's wording that is necessary to be included.

PN274

Your Honour, in the application of coverage of that award that we have sought to exclude in 4.2.2, employees engaged on renovation or structural alterations at the employer's premises which do not fall under the definition of maintenance or away from the factory yard on construction work or on outside work or fixing work onsite cover by the Construction and Related Industries Award 2010. Again, we are seeking to make the clear distinction between the coverage of these awards, that the Offsite Award would apply to factory and shop work and what is minor maintenance, which is small carpentry repair work.

PN275

For example, if there is a window to be fixed in a domestic property, then that would be considered as - depending on whether it's just a window or whether it's a curtain wall on a house, that will be covered by the Offsite Award but if there's structural alterations, then that would be termed major maintenance and covered by the Construction Award.

PN276

With the award covering organisations, again we have not sought to exclude anyone we believe would have an interest in the award. There is a certain bit of commonality between the clauses in this award and the proposed construction award. Clauses 6, 7, and 8 are standard, clause 9, disputes resolution is the same as the construction award, clause 10, employment categories are different and they're based on the existing provisions of the National Joinery and Building Trades Products Award. Clause 11, termination of employment is a standard clause. Clause 12, redundancy, the main issue here, your Honour, is the protection of the existing entitlement to redundancy for employees of small businesses. The National Joinery and Building Trades Products Award and the majority of awards we seek to come into that area had a pre-existing entitlement for employees of small business prior to 2004. To my recollection, they were inserted, I believe in probably 1996 to provide for small business redundancy pay.

PN277

Your Honour, part 4 deals with the wage rates and classification structure. There is more work required in regard to the broad ..... groups to insert that the relevant occupations are included under those areas and I should point out that again, with this award we have yet to seek to remove the state based differential so it still contains provision in clause 14 to junior labour in South Australia. Apprentices includes the - again a significant number of pages dealing with apprentice wage rates. The allowances in clause 16 - - -

PN278

THE SENIOR DEPUTY PRESIDENT: The junior labour in South Australia unapprenticed, what does that mean? You've referred to 18.3 which doesn't appear in this draft, presumably 18.3 of the award it came from. What is that actually prescribing?

PN279

MR MAXWELL: Your Honour, it prescribes that if you employ unapprenticed juniors in South Australia you pay the apprentice wage rates.

PN280

THE SENIOR DEPUTY PRESIDENT: So it's a reference to the South Australian apprentice wage rates.

PN281

MR MAXWELL: That's correct. Your Honour, the history of that is that it actually came out of the - I think the old Carpenters and Joiners Award 1967 which only applied to tradespeople and it's a provision that the majority of young people were employed as indentured apprentices but if someone sought to engage a junior as an unapprenticed person, then they would receive the same wage rates as the apprentice.

PN282

Your Honour, clause 15.10, skill base apprentices, the standard clause from the National Joinery Award. Clause 16 deals with allowances and again there's a provision about the adjustment of allowances and special rates. The rest of the allowances are existing award provisions but there will be a need to insert additional allowances from the other awards, of course, and more work is needed in that area, particularly in regard to the gypsum, plaster board areas and the glass workers areas. The location allowances in West Australia, the same as the Construction Award. Again we have provision for accident pay which is an existing provision with the National Joinery Award and then special rates.

PN283

Your Honour, any of the additional provisions that are contained over and above the NES, there are similar arguments to that, to the Constructions Awards in particular and the provisions in regard to annual leave and personal leave and compassionate leave.

PN284

THE SENIOR DEPUTY PRESIDENT: There's a somewhat brief inclement weather provision here. Referring to it, it appears only fixing work in a cemetery. What is the practical effect of that?

PN285

MR MAXWELL: Your Honour, that is because the main difference being that under this award the employees are weekly hire. The main difference between weekly hire and daily hire employees is that because weekly hire employees are employed by the week. If it rains midweek the employer is still required to pay you for those hours, whereas under daily hire an employer could terminate you at the end of the day or once the rain started and then not re-engage you until the rain stops so if you had four days of rain, effectively the employer could terminate you once the rain started and then re-engage you when the rain stopped and that was why the basis of that whole inclement weather clause was developed.

PN286

THE SENIOR DEPUTY PRESIDENT: In the onsite.

PN287

MR MAXWELL: In the onsite area to deal specifically with those employees that are daily hire and also I'd like to address that the various disputes that arose in the industry, that when work should stop even when the provisions arise.

PN288

THE SENIOR DEPUTY PRESIDENT: What's the clause 19 here dealing with? A dispute that arose in a cemetery at some time?

PN289

MR MAXWELL: Well, your Honour, I'm not too - I'm not aware of two disputes that arise in regard to cemetery work. But it's made that the ..... I suppose that there is a question whether that is still relevant to be included given the nature of the employment.

PN290

THE SENIOR DEPUTY PRESIDENT: Yes. And given - right. It's not a provision - it's a provision which requires agreement as to whether there is ..... whether it prevents work being undertaken and I'm still not sure what fits in work in a cemetery would be.

PN291

MR MAXWELL: Well, may we .....

PN292

THE SENIOR DEPUTY PRESIDENT: Yes.

PN293

MR MAXWELL: I say, your Honour, that the rest of the conditions at the end of the day deal with NES matters, the same argument applies as with constructions, whether they are existing award conditions. I just make general comment that in regard to that award we recognise that more work is need, a significant more amount of work and we hope to have further discussions with the parties on that. Your Honour, we are aware that there are a number of other submissions made by other parties, however we suggest that it will be more appropriate for us to make comment on those once those other parties have addressed the Commission.

PN294

THE SENIOR DEPUTY PRESIDENT: Well, if that's all you're saying at this stage, you did say at the outset you haven't included plumbing and electrical contract work.

PN295

MR MAXWELL: That's correct.

PN296

THE SENIOR DEPUTY PRESIDENT: Is there any observation you want to make about that for the benefit of others before they speak?

PN297

MR MAXWELL: Yes, your Honour. We understand that the CEPU both the plumbing and electrical divisions are seeking the creation of separate electrical contracting awards and separate plumbing awards. The CFMEU does not
Oppose the creation of awards along those lines.

PN298

THE SENIOR DEPUTY PRESIDENT: You don't oppose the - you've adopted the standard AIG language of the past in relation to the safety net adjustments. You do not oppose the adjustments. Do you have a more ..... do you have a position beyond not opposing?

PN299

MR MAXWELL: No, your Honour.

PN300

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I try. Very well, thank you. Who's next?

PN301

MR HERBERT: It seems everybody wants to hear what everybody else wants to say ..... nobody's going to say anything, your Honour. Your Honour, can I be my usual shy self and at this stage, and again on a provision basis as much as what has been said by the CFMEU, there's a lot of work to be done.

PN302

THE SENIOR DEPUTY PRESIDENT: Yes.

PN303

MR HERBERT: Can I put to the Commission what it is the AWU says about what should occur in relation to these matters. If I can do with so with the caveat that we haven't seen - we understand there was a draft put about electronically of an AIG proposal we haven't seen as yet and we haven't - we think we know what it's about, but we also haven't seen the CFMEU extra draft that was spoken of this morning that was said will be put out on Friday.

PN304

THE SENIOR DEPUTY PRESIDENT: That was a draft mismatched that went through this morning.

PN305

MR HERBERT: Yes, we haven't seen that yet. I only have a - I have the first draft, I don't have the second draft. Now, I've listened very carefully to what's been said and I think I'm in a position to be able to put some positions in general principle. But when it comes to the detail of the matter it's going to be very difficult for me to say too much about it and it may be a matter where the Commission is going to have to say that might be clear as to why that is so. The AWU has - because these are pre-draft in consultations the AWU has a pretty clear view that there is an issue that needs to be determined by the Commission at this stage before drafting of construction awards can go any further.

PN306

The CFMEU refer to the elephant in the room being what they described as demarcation. With all due respect the elephant in the room is the CFMEU in that respect. And it would be those of us around whose hair has gone grey on the service of industrial actions in this country in the last 15, 20 years would understand what is being said when the AWU says that it would be remiss of this Commission to embark upon award modernisation in a way that was absolutely guaranteed to open up old wounds, old contests, old battle grounds and old disputes which have been resolutely settled by some fairly emphatic decision making by this Commission over a large number of years.

PN307

And whilst the CFMEU glibly says this is a brave new era and the doors are now thrown open to everybody to be involved in everything and that this is all a matter of reducing the relevant number of awards down to the minimum possible, at the tail of the submission we heard that the CFMEU on the other hand doesn't oppose the making of a plumbing award and an electrical contracting award and other awards which may suit the territorial aspirations of other unions. And the AWU makes no point about that other than to say that they don't disagree with the making of awards that do recognise vocational boundaries and traditional areas of interest of particular unions because that's precisely the submission the AWU makes. It's a consideration which the Commission must bear in mind in relation to award modernisation and not to tear down all of the fences that have been careful erected by the Commission over a number of years for very good, solid industrial reasons.

PN308

THE SENIOR DEPUTY PRESIDENT: I'm sure the Ludeke principles will survive forever, Mr Herbert.

PN309

MR HERBERT: Yes, yes. Your Honour, one thing the legislation hasn't done is it hadn't done away with union eligibility rules.

PN310

THE SENIOR DEPUTY PRESIDENT: That's correct.

PN311

MR HERBERT: And it has, it appears, it is maintaining the entitlement of unions to represent particular categories of employees and all the more that goes with that. But if one then opens up areas of endeavour into situations where unions with a narrow area of interest, or an area of interest that doesn't extend to the borders of the new so called industry groups, then the possibility of the sorts of demarcation struggles that we thought we'd all put behind us is opened up again. And as the CFMEU, with respect, has adopted a somewhat two-headed approach to this matter by saying on the one hand where the CFMEU has an interest in an area, anything else which looks like it has any possible connection to that area should be lumped into an award with the CFMEU interest, except where it comes to some unions with whom they have an empathy, they can be hired out and they can have their own awards because we don't intend, we have no interest in their areas, but we do have some interest in areas operated by other areas.

PN312

And of course the AWU identifies itself as one of those that the CFMEU has over the years expressed an interest in its vocational turf. And the clear line of distinction that has been drawn by this Commission over decades has been between the building construction industry on the one hand and the civil construction industry on the other. And the two unions, the AWU and the CFMEU, have traditionally been recognised as being the predominant unions in each of those areas and they are separate and distinct industries. One of the great difficulties, I'm sure it's occurred to all the members of the Full Bench including your Honour, is that when one talks about making awards along industry lines one has to ask the question well exactly what is an industry.

PN313

An industry is really in the eye of the beholder. One could say that the building industry in the sense of anything, any work concerns with anything that's built. And we've heard today that there are about a dozen industries or areas that have been described as industries that have been lumped into the construction industry. One is the asphalt and road making industry, concrete and concrete products industry and a range of other industries, and the electrical contracting industry and the plumbing industry and the off site furniture making industry, et cetera et cetera. All of those things are traditionally called industries.

PN314

Now, what's being said now is that those that, in the CFMEU's submission as we understand it, is that those industries which they prefer to see under the umbrella of a single industry because of their interest in those areas, should all be put under the one hat and called an industry and that the statements by the minister and the provisions of the Act would be available of to achieve an outcome where all of the matters the CFMEU are interested in should be under one that and all the matters they're not interested in should be - well, they can take care of themselves. And all by reference to description of an industry.

PN315

Well, with respect, if there's nothing clear from the history of this Commission over the last 15 years in relation to construction related matters this Commission has always considered civil construction to be an industry in its own right, separate and distinct from the building construction industry. It has been separately regulated in a range of different ways. It has been kept separately and apart. It deals with a separate and well recognised category of work, the economics of which are quite different and the participants of which by and large are quite different from the industry which is being called the building construction industry.

PN316

And similarly there has always been recognised a third category of industry is the metals, engineering construction industry which again is one which has not been, it appears, mentioned in the CFMEU's submissions. So it appears, with respect, that the history of this Commission would tend to suggest that there always has been a recognised industry described as the civil construction industry and that the award modernisation process being undertaken by the Commission should not diminish that distinction. The AWU in recognition of that, and without territorial aspiration of any kind, has put forward a draft Civil Construction Industry Award 2010 which is a draft which has been in effect is a conversion of the Australian Workers' Union Construction and Maintenance Award 2002 which is an award of this Commission.

PN317

It is perhaps the flagship civil construction industry award of this Commission with some and it's very much a work in progress, I should say, with appropriate allowances being made in that award for the inclusion of some provisions from some of the state awards in terms of allowances, in particular some of the Queensland state awards because of the differences between in many cases the Queensland state awards and the federal award. But the draft award which has been put forward is confined to the traditional description of what has always been considered by this Commission to be the civil construction industry and does not include building construction work, does not include metals, engineering construction work and does not purport to include what is being globally described as off site construction industry.

PN318

And it is intended and it is the submission of the AWU that this Commission should maintain the distinction between those well recognised categories of activity as described in that way. And so that the AWU's primary contention in all of that is that there should be a stand alone civil construction industry award draft along the lines of that proposed by the AWU subject to some more work which is currently being done in relation to the elimination of state based differences and the incorporation of a range of NAPSAs. The other primary submission that the AWU makes in relation to these matters is that the attempt by the CFMEU to, as it were, run a rope around any manufacturing activities out there where the product of the manufacturing business is ultimately utilised in the building site or in any form of building project is also an attempt which this Commission should resit.

PN319

And it should do so because, as was brought out in the submissions in relation to the modern manufacturing award, the vast majority of the activities around which the CFMEU has attempted to cast its net, as it were, the vast majority of those are properly characterised and has again for many decades been characterised as manufacturing industries and they should not be incorporated, they should not be brought under the auspices of an award by reference to the location at which their product is used as opposed to the work that is being done to produce the product. And that's really, it seems, the criteria adopted by the CFMEU, is where does a product go when it leaves your gate?

PN320

If it goes to a building site then it should be treated in as part of a building family of awards, as they're called, as opposed to what do you do within your gate when you are manufacturing this thing and what is the nearest kindred industry to the processes and the activities and the employment conditions which are situated within your gate. And in relation to those matters, for example, there are some clear examples, for example, as we understand it and that is the activities such as the manufacture of aluminium window frames and things of that kind. It's a plain level manufacturing operation. The fact that those operations end up or those products end up on building sites is not really of any particular significance in relation to the work which is performed.

PN321

And the concrete and concrete products industries, in respect of which as we understand it the CFMEU proposal is that those activities be brought into a building products off site award by whatever name it might end up being called, and by instance that particular example because, as I understand it, the Commission has determined that there is to be a discrete award and a hearing in relation to concrete and concrete products which have been, as I understand it, determined by the Commission to be dealt with in a discrete way at a later round of the award modernisation consultations.

PN322

But again the mere fact that those products may end up on a building site, or may not as the case may be, does not warrant the making of a separate award in relation to those by reference to any other products which might have no relationship with each other which also, other than the fact that they also end up on a building site. So that the two key issues which in my submission the Commission will need to determine before one can descend a particularity in relation to the content of any of the awards is whether or not the Commission is disposed to building construction and civil construction into the one award for the first time ever in the history of this Commission and to incorporate all of the vast range of civil construction awards to which the AWU is either the predominant or the sole party and the building and the civil construction NAPSAs, again to which the AWU is either the predominant or sole party of the states, into a global type broad church construction award with all of the other unions and with some very wide ranging coverage, wide ranging activities, being covered in respect of what are, and there are others here who can speak with more expertise about that than me, but what are two quite distinct industries in the sense that the employers in general terms are different, the employer organisations representing employers in those two sectors are different and traditionally are the predominant unions and awards regulating each of those sectors have always been different.

PN323

If the Commission determines that it is disposed to making a single award to bring the AWU and the CFMEU fundamentally together into a single award dealing with all construction related matters, both civil and building, then the AWU will seek to make some more submissions in relation to the form that such an award might take because it has some disagreements with some of the detail of the proposals of the CFMEU award. But at this stage, as I say, not having seen the final draft we prefer to give those submissions to the point at which the Commission makes that decision, if that's what it intends to do and secondly until it sees the draft - - -

PN324

THE SENIOR DEPUTY PRESIDENT: Well, it's rather ..... because there are chickens and eggs.

PN325

MR HERBERT: Yes, I understand that, your Honour.

PN326

THE SENIOR DEPUTY PRESIDENT: I mean, for example, you suggested that the terms and conditions are different as between, if I can call it, the AWU awards and the - - -

PN327

MR HERBERT: The economic - can I say this, your Honour. The economic circs of the industries, as we understand, are a bit different. Civil construction by and large is primarily undertaken by government organisations, not directly anymore, but under contracts for governments of various kinds - local state and federal - being primarily in many cases roads, bridges and civil infrastructure built for the community by governments. By and large. The economics of those works are not such as a CBD high rise building which has the capacity to generate massive profits once it's built.

PN328

THE SENIOR DEPUTY PRESIDENT: Peter like EastLink went into projects with a view that might generate significant profits.

PN329

MR HERBERT: There is an element of cross over and there's an element of commonality in some areas of the work. There's no doubt about that. And they have always been described, as was put by the CFMEU, as being in the same family. But they never got any close than second cousins.

PN330

THE SENIOR DEPUTY PRESIDENT: Yes.

PN331

MR HERBERT: If you wanted to extend the analogy - - -

PN332

THE SENIOR DEPUTY PRESIDENT: You'd have some pretty awkward Christmas dinners on the table.

PN333

MR HERBERT: Yes, Christmas dinners are generally held at different houses, your Honour, due to communication difficulties. But your Honour, they have been kept separately and apart by this Commission for decades and that's not an accident and that wasn't unintended and it wasn't for lack of trying by some to put them together over the years and they've been kept apart by reference to some very clear points of discrimination which have been known and understood for some time.

PN334

The award modernisation process with the laudable objective of reducing the overall number of awards, with respect, was not intended to put together areas which have clear inconsistencies between them and a clear history which would suggest to this Commission that it is likely that industrial disputation will be created by the making of that award, one would have thought. Whatever be the objective making modern awards that wasn't one of them.

PN335

THE SENIOR DEPUTY PRESIDENT: Yes. It does raise a question,
Mr Herbert, as to whether award modernisation is an appropriate means for the structure and scope of awards of dealing with demarcation issues or whether the demarcation orders envisaged in the Act are the appropriate means of dealing with those issues. For example, such a case in relation to traditional civil versus building general work would presumably have some regard to past history and indeed things like the Ludeke formula which was very popular at one point.

PN336

MR HERBERT: Yes.

PN337

THE SENIOR DEPUTY PRESIDENT: Those matters would obviously arise clearly in demarcation matters.

PN338

MR HERBERT: Well, this Commission, with respect, wasn't asked, if I may speculate, that it's very likely this Commission wasn't asked to do award modernisation and to leave behind all the history this Commission has within its corporate knowledge and understanding and memory about the potential for industrial conflict on the ground associated with what it is being asked to do. The Commission is being asked, as we heard before, to leave a - or the CFMEU says that it doesn't oppose and I understand the plumbing and electrical unions will say they very strongly advocate for the making of separate awards to cover their separate vocational groups.

PN339

There are good reasons for doing that and the Commission understands those reasons and no doubt will be enlightened about what they are. Well look, the same sorts of reasons but at a slightly different level apply in relation to putting together building and construction industries and it's well and good to say, as no doubt those opposing my submissions will, that there are provisions in the Act to allow for the making of demarcation orders but they will be after the event. They will be only after blood is actually visible on the floor as the current provisions are. There needs to be things grinding to a halt, activities stopping, the economy upset before those provisions are able to be brought to bear, by which time in many cases the damage has been done.

PN340

The very strong submission made by the AWU in relation to these matters is that the Commission should have regard to its entire corporate memory of issues of this kind and in the interests of simply reducing the number of awards out there by one, put together industries and parties who history instructs us do not have a long and productive history of cooperating in relation to those two industries and when one thinks about it we are reducing, I haven't counted the number, but 30 or 40 NAPSAs and awards and things of that kind down to the CFMEU's proposal is down to I think two awards, an on site and an off site, then we've got two or three electrical and plumbing awards as well; if one were to separate civil construction from building construction there would only be one more award than the CFMEU proposal.

PN341

THE SENIOR DEPUTY PRESIDENT: Yes.

PN342

MR HERBERT: In terms of the productivity being achieved by reducing from 40 to two as opposed to 40 to one, it's still a pretty good outcome and that outcome has a far better chance of surviving this process and not giving rise to all sorts of ex post facto debates and disputes that, as I say, took in some cases decades to settle and to put away and the territorial aspirations of unions didn't go away with the passing of the new legislation. Their eligibility rules didn't go away and the tactics necessary in order to achieve demarcation disputes on site and to recruit membership from other unions areas, none of those strategies or tactics have been taken away from any of the unions represented in the Commission.

PN343

All the old tactics are still available and they will still be used. One can be absolutely certain of that, so long as an opportunity is provided for them to do so.

PN344

THE SENIOR DEPUTY PRESIDENT: Why would the making of a separate award for civil construction stop a union aspiring if it had eligibility to obtain coverage in that area, a union other than the AWU?

PN345

MR HERBERT: Yes, a union other than the AWU, of course. The answer to that, your Honour, is pretty much the same reason why it hasn't happened to any great degree in the last few years and that is that it is much easier to reach agreement and accommodation between parties in circumstances where one union has a vast predominance in eligibility and coverage and another union does not and the point about what's being proposed here, to be absolutely blunt about it, is that one union has vast predominance in one area, the other has vast predominance in the other area and they're going to be put together to see which is the strongest and one will have the most members at the end of the battle.

PN346

THE SENIOR DEPUTY PRESIDENT: Well, that seems to suggest the award structure has significant effect on demarcation issues and the award structure is directed to establishing sensible and appropriate minimum safety net provisions.

PN347

MR HERBERT: As it always has done since the abolition of preference clauses in awards. That's all it's been, but it has another effect and it has had another effect in terms of the internal discussions of unions going back to the old notions, the ACTU notions of principal, significant and other unions. Agreement was able to be reached more easily because of the standing and the status of unions in respect of those matters. Your Honour, this is - - -

PN348

THE SENIOR DEPUTY PRESIDENT: But why wouldn't that continue because there seems to me to be nothing in the proposed Bill at least directed to award coverage as determining these issues. Eligibility is a key note to right of entry right for discussion with employees, right to inspect books, right to vary awards.

PN349

MR HERBERT: Yes. The submission I put, your Honour, may not stop a flare up of demarcation disputes. The submission is that if the Commission doesn't act in the way I have submitted on behalf of the AWU their absolutely will be a flare up of demarcation disputation. It is certain if the Commission is to give make a global award with the two unions. It is far less certain but not impossible for the reasons your Honour put if the two award are made. There is a far better chance and again given the charter of this Commission to assist in the amicable resolution of industrial issues generally within Australia it's my clear submission that the Commission would be missing a golden opportunity to substantially reduce the possibility of such disputation breaking out again and I can't put it any more clearly than that.

PN350

THE SENIOR DEPUTY PRESIDENT: Yes.

PN351

MR HERBERT: I can't say your Honour will be holding the parties apart and that they will maintain the roles that they've had in their respective sectors of the industry in the past 10 years. I can't say that because we don't know how the new provisions are going to play out. But I can say that there's a very high degree of probability ranking with certainty that the parties will be in a position where unions will do what unions will do in that situation to engage in a model of competitive unionism within the one broad church construction industry and neither of them are going to lie down quietly against activities by the other and that that is going to cause damage in the industry. That's as I say, your Honour, this is an opportunity that the Commission has to deal with the issue.

PN352

If, as matters play out, in four years' time when there's a review of these awards or at some future time somebody decides that the distinction between the two industries that I'm urging upon the Commission today to make has turned out not to be useful or has become academic or unproductive, well then, the Commission will have plenty of time to be able to bring them together, but at this point of time, in my submission, that would be a very wrong thing to do because of the
potential - - -

PN353

THE SENIOR DEPUTY PRESIDENT: I understand what you're saying and what your client is saying, Mr Herbert. To assist us in considering the matter and the other elements in the request, and demarcation is one of the issues, it would assist if the AWU could put some material to us as to any material differences in terms and conditions as between civil construction and - - -

PN354

MR HERBERT: Yes. The proposed award the AWU has put forward - I assume the Commission has that.

PN355

THE SENIOR DEPUTY PRESIDENT: I do have it in front of me.

PN356

MR HERBERT: That's the AWU's - it hasn't and again can't until it sees the CFMEU second draft - hasn't put together a comprehensive document of the differences between what it proposes in its draft and what the CFMEU has proposed and one suspects if the CFMEU have done the conscientious job of bringing across the AWU conditions into the proposed new award, that it will be - and as we understand it is largely a cut and paste exercise with some of the elimination of state based differences that were mentioned earlier, but that the conditions that have been included within the CFMEU Onsite Award will be, one suspects, largely the conditions which apply generally and we'll check more closely when we see the final award but we think largely they're the conditions that do apply in the AWU Award and NAPSAs around the country so the CFMEU proposal just drawing those matters across there won't be a great deal of difference.

PN357

There always has been a parity between particularly wages across the
two construction sectors over time so one wouldn't expect to find any significant differences in wages and they do slot in together reasonably well within the one award. I notice from the CFMEU draft that I do have that there are a range of classifications which are AWU classifications which don't have any rates attaching to them at all in the CFMEU draft. I don't know why that is but we can certainly point up if there are any differences.

PN358

THE SENIOR DEPUTY PRESIDENT: That would be helpful and also, if you could document what awards and NAPSAs you say would fit within the civil construction industry.

PN359

MR HERBERT: As I understand it, there is a list that's been prepared. The AWU adopted the technique, if you like, of taking the flagship federal award and amending that award and then in accordance with, I think some remarks by the President as to what was perhaps the most appropriate way to start, but in terms of the other NAPSAs which would be able to be brought in or that should be brought in and dealt with and any differences that might need to be accommodated in relation to that. As I understand it that document is under construction as we speak and it should be able to be with the Commission fairly shortly.

PN360

Again, I understand that your Honour has to get on and do two or three things at one time in relation to these matters but the AWU really was of a fairly firm view that there is really a preliminary or threshold decision that the Commission perhaps could or should take before the detail is descended to and that is the question as to whether there's going to be a single award or not and that would certainly assist the parties rather than going about a lot of extra work, working out what the shape of a broad church award might be if the Commission decides there isn't going to be such a thing.

PN361

We'll endeavour to do both of those things, your Honour, that is to indicate how and where the civil construction NAPSAs should be accommodated within the AWU draft and to point out to your Honour any matters of detail in a written submission that we might have about the CFMEU Award, not forgetting that the other matter of principle is the matter that we ask that the Commission should make again as a threshold point, and that is the question of the extent to which an Offsite Construction Award should be made at all to cover anything other than the joinery operations which have been for many years now considered as being an offsite aspect of the construction industry.

PN362

To spread that umbrella even more widely, again as we understand it, is to cover a lot of operations that have always been exclusively covered by other unions in separate and distinct industry awards. To pull those matters under the umbrella of what is said to be a CFMEU Award, although they say they've mentioned all of the other unions in it, would again be productive of a range of difficulties which it's submitted the Commission could avoid if it elected not to do that.

PN363

THE SENIOR DEPUTY PRESIDENT: Mr Herbert, can I ask you, the draft award that has been provided by the AWU, I think the version 2 on 27 November, the definition of civil construction, is that simply drawn from the current award?

PN364

MR HERBERT: From the current award. I understand there may be some very minor additions relating to some Queensland matters but there is also I think reference - it may be new but there are - geomembranes and geotextiles are included. They were the subject, as I understand it, of separate award regulation. They've been brought into this award but fundamentally, it's covered - it is a definition which is brought within the existing - or it derived from the existing award.

PN365

THE SENIOR DEPUTY PRESIDENT: Has any thought been given to definitions in other exposure drafts? For example, I note the definition in here of expensive construction repair maintenance, demolition of railways and there is a Rail exposure draft.

PN366

MR HERBERT: Yes, there have been submissions made in relation to Rail as I understand it. The submission that's been made is for the exclusion of construction work from the Rail Awards as it always has been. The Rail Awards have always been the province of the unions who operate the rail lines once they've been laid and constructed and as I understood it, the AWU has put fairly firm submissions in relation to that matter that a Rail Award should not include the construction and the - - -

PN367

THE SENIOR DEPUTY PRESIDENT: That's the actual tracks.

PN368

MR HERBERT: Yes. It's the construction of the track work, the culverts, the ballast, the tracks, the bridges.

PN369

THE SENIOR DEPUTY PRESIDENT: The term used here is "railways". That's intended to be that aspect.

PN370

MR HERBERT: It is. That's perhaps an older, more archaic term that used to be used but there is no sense in this in the operation of railways, nor does the Rail Award, as I understand it, anticipate that there would be any of the actual preliminary construction works. They're usually done by specific contractors and then the railway handed over to an operator.

PN371

For your Honour's assistance I think I know what a coffer dam is. As I understand it, it's a temporary dam that's constructed to keep water away from other works such as bridgeworks or wharf works or things of that kind. There was a couple of references to compressed air. Some underground works particularly of a temporary kind are required to be done with the atmosphere in which one is working compressed as a means of keeping the water out. If you can't actually seal the area, you push it out by using compressed air, but a coffer dam is a temporary dam used to protect civil works from water.

THE SENIOR DEPUTY PRESIDENT: Thank you for that.

PN372

MR HERBERT: Just for the record, your Honour. I wouldn't want to leave anyone uninformed. The AWU was put on notice that it needed to show if it really knew what a coffer dam was.

PN373

THE SENIOR DEPUTY PRESIDENT: That's very impressive. That will no doubt carry weight in relation to your broader submission.

PN374

MR HERBERT: That should help in closing submissions I think your Honour. That's all I have at this stage. We will produce the material that we've mentioned. If there's anything raised in relation to the submissions from those who wanted to hear me first, then if it's today I will be here to answer that, if not, Mr Decarne from the union will be here tomorrow if the matter is still going tomorrow.

PN375

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Herbert. I might adjourn until 2 o'clock at this stage and the parties can work out a batting order of some kind.

<LUNCHEON ADJOURNMENT [12.50PM]
<RESUMED [1.59PM]

PN376

THE SENIOR DEPUTY PRESIDENT: Right, who is next? Mr Calver.

PN377

MR CALVER: Thank you, Senior Deputy President. If the Commission pleases, the first point I need to make is that Master Builders has been quite active in placing before the Commission a large volume of written work in order to assist the Commission with a task of creating modern awards. To date we have lodged seven formal submissions, the last attached a draft modern award in respect of on site construction. We started from different premises to those who have addressed you this morning. We don't believe that the central starting point for on site in particular is the current award that applies.

PN378

Our central position is that as the Bard said, all that's past is prologue. Our central proposition is that three building and construction industry awards should be created. Creation itself says something in the Ministerial Request we say. How else can you in this industry get an award that satisfies object 1(a), the first object? Awards that must be simple to understand and easy to apply and must reduce the regulatory burden on business. That's the first objective. We see that there is a need for a Civil Construction Award categorically defined and we've provided the scope of that, the On Site Building and Construction Award and an off site award.

PN379

The off site award has generated something close to hysteria, however in our fourth submission to the Commission we've set out in detail a tracing of those instruments that we grouped by subsector that would fall within the area of an off site award and the easiest way to take the Commission to that to reinforce how we could derive such an award with the scope that we've articulated is by taking you to the fourth submission, attachment A.

PN380

THE SENIOR DEPUTY PRESIDENT: Yes, that's the - - -

PN381

MR CALVER: We say - - -

PN382

THE SENIOR DEPUTY PRESIDENT: Just one moment.

PN383

MR CALVER: Sorry. I know there are lots of documents.

PN384

THE SENIOR DEPUTY PRESIDENT: Filed on 10 October, is that correct?

PN385

MR CALVER: We lodged the fourth submission with the Commission in matters AM2008/5 and AM2008/15 in August 2008.

PN386

THE SENIOR DEPUTY PRESIDENT: Yes, okay. So you're talking about - - -

PN387

MR CALVER: Attachment A.

PN388

THE SENIOR DEPUTY PRESIDENT: Attachment A.

PN389

MR CALVER: We provided attachment C in hard copy only because at that point there was an understanding that each modern award would need to have as a schedule or a tracing all of the NAPSAs and federal awards upon which it was based, however that has not been the case.

PN390

THE SENIOR DEPUTY PRESIDENT: Yes.

PN391

MR CALVER: And so we supplied attachment C in hard copy. But attachment A is a nice summary.

PN392

THE SENIOR DEPUTY PRESIDENT: I have that, thank you.

PN393

MR CALVER: And the areas where we've identified are areas where in particular joinery work in the first section is currently undertaken and that is clearly building recognised in the current system as off site building work. It's quite easy to distinguish this as a separate sector and I note that there is nothing in the without prejudice draft position that was tabled this morning, that is CFMEU CONSULT2 which would prejudice the creation of such an off site Building and Construction Industry Award, call it what you will. It's now going to be called Joinery and Building Trades Award 2010. There is nothing in the name per se.

PN394

Attachment B to that submission takes the tracing from attachment A and consolidates areas where we think that there is some commonality in the creation of an award of that kind, particularly sir, it's absolutely necessary, we say, that maintenance be dealt with and the third dot point of the scope there says:

PN395

Any work in or in connection with maintenance of any building, structure or works not under construction including fittings or other appurtenance of the building, structure or works.

PN396

This is because, and the Full Bench was quite clear in its statement, every industry sector shall come up with clear guidance as to where maintenance sits and we say it doesn't sit nicely in the on site award but is part and parcel of what an Off Site Building and Construction Industry Award would be concerned with. It's in that context that we cite some plumbing industry examples and electrical contracting examples, so that when those sectors undertake maintenance they are undertaking off site building and construction industry work.

PN397

There has been in our submission to create civil and on site and an off site award about which we've been very clear in articulating the scope for most of 2008. Why don't we think an occupational category is necessary along the lines of plumbing and electrical? Well, for a start we believe that the request establishes in clause 4 a reverse onus of proof because it says:

PN398

The Commission is to create modern awards primarily along industry lines but may also create modern awards along occupational lines as it considers appropriate.

PN399

The Full Bench to date has not given us guidelines about the circumstances in which it is appropriate to create occupational awards and therefore it is with keen interest that Master Builders wishes to hear from those who wish to make an exception to the creation of industry awards. We're not closed as to that proposition. Our primary and firm stance however is there be a Civil Construction Award and an On Site Building and Construction Award and an off site award of the character elaborated in detail in our fourth written submission. As I said, as part of our seventh submission we've provided to the Commission a draft On Site Building and Construction Industry Award. It is certainly not complete.

PN400

We have not to date supplied copies of any of the other two proposed awards given that there is doubt surrounding the number and extent of awards for the sector and along with Mr Herbert, we would urge the Commission to make an early decision about the framework of awards that it believes it should create so we may then determine how best next to assist the Commission. This sector is so fraught with some of the problems that metaphorically have been referred to as elephants or other animals that a decision of the Commission in regard to the areas where awards are to be created I think would solve a lot of the issues.

PN401

We don't characterise them as demarcation issues. The new Bill has means by which demarcation will be rationalised and I think Mr Herbert alluded to it when he mentioned that eligibility rules of the union's rule remained intact, as they will I believe for employer associations. There will be means to come to this place to get demarcation orders. We don't think that the mind of the Full Bench should be directed to that consideration when creating industry awards. What we do say though is that there must be a differentiation by way of application that is crystal clear and we've set that out in some considerable detail in the written submissions as to why those industry sectors are palpably different and how with appropriate exclusions they can be dealt with, which is one of the reasons that we to date have been alarmed that the Manufacturing Award contains the notion of regulation of structures, because clearly if you manufacture a structure you get buildings.

PN402

There are some other issues that we raised with the Full Bench relating to manufacturing as well that are articulated in the written submissions about the differentiation between manufacturing and construction and how to improve that.

PN403

THE SENIOR DEPUTY PRESIDENT: Yes.

PN404

MR CALVER: Essentially then we will be able to place resources in the areas where there is a need rather than on a speculative basis if there was an early decision about the nature and extent of awards to be created in this sector and we say that respectfully, your Honour, that that will assist this sector more than others. As I said, some of our submissions have elicited responses that we were surprised by. One of those responses was a response from the CFMEU that was copied to the Commission. There's a letter dated 11 November from the secretary from the Construction and General Division of the CFMEU to my CEO,
Wilhelm Harnish.

PN405

In that letter Mr Noonan sets out five items that are listed which the CFMEU believes stand as evidence that Master Builders is seeking to slash "award conditions". We are not. We responded to that letter through its CEO, through my CEO on 25 November and I have provided your associate with a copy of that letter and I've got copies here for - obviously I think Mr Maxwell has a copy has a copy, copies here for my colleagues because we'd like this on the public record.

EXHIBIT #MBA BUILDING CONSULTATIONS 1 LETTER FROM MBA, DATED 25/11/2008

PN406

MR CALVER: Thank you. What I now intend to do, Senior Deputy President, is to use the five areas highlighted to illustrate the manner in which we've approached award modernisation, particularly as the first two issues are controversial and will enable me to take you to some of the materials that we've produced for the Commission so that you can utilise them in the same way we would believe in analysing this sector and some of the provisions which we think are no longer required in the draft of the award that the CFMEU has produced and which don't meet with, we say, the objectives of modernisation.

PN407

We underlined first of all in the letter that we are not seeking to take away workers conditions but instead we want to make awards accessible, streamlined and above all, usable. There is reference to clause 27 of the draft award that we submitted to the Commission and we think this is a useful device. We urge the Full Bench to utilise and that is so that there is no element of disadvantage associated with award modernisation. A clause along the lines that we have articulated should be contained in each award. Its subject heading is Employee Protection and it says that:

PN408

An existing employee should not suffer any loss of income derived from the working of ordinary hours of work as a result of the application of this modern ...(reads)... relevant prior safety net instrument.

PN409

So we're not seeking to take away workers conditions. What we are doing is we are saying that there should be a broad mechanism to make sure that this process doesn't take away their terms and conditions at the same time as introducing as many standardised non industry specific conditions as is possible and then modifying those conditions where it's an absolute necessity in respect of the characteristics of the industry and that's why we've based our draft modern award on the Mining and the Rail Awards because we believe of the priority awards they form the best model so far that can be rolled out in a way that is simple, well drafted and has universal application.

PN410

So we are not seeking to reduce terms and conditions of employment. One of the other things we've said in our written submissions, Senior Deputy President, is at the end of the five year transitional the successor body to the Commission will have the power to deal with disputes and would have the power to solve any issues that might at that point arise between any amount of money or conditions that apply at that time as against the modern award conditions. So that if you felt aggrieved at that point when that particular provision ended in terms of NAPSAs and others folding into the modern award there could be a dispute resolution mechanism which the Commission would have jurisdiction to deal with and there would be a presumption that employees should not be worse off.

PN411

THE SENIOR DEPUTY PRESIDENT: Does the Bill provide a power of determination to the Commission in relation to such matters?

PN412

MR CALVER: I believe it would under general dispute resolution provisions but that's one of the reasons that we are saying that the Full Bench I think in terms of its power could have the capacity to do that in reaching a balance between the two competing considerations that it's not reducing employees terms and conditions without increasing costs to employers. There has to be some mechanism or some resolution of that at the end of the transitional period, otherwise we'll never know where we are. It may well be that that could be done under the rubric of the first review of modern awards but that would be too late for many people.

PN413

However, a normal dispute resolution provision would encompass a dispute about whether or not an employee was worse off under the modern award which he or she then folded into.

PN414

THE SENIOR DEPUTY PRESIDENT: Yes. But is there any determinative power within the new Bill for such general disputes?

PN415

MR CALVER: Well, your Honour - - -

PN416

THE SENIOR DEPUTY PRESIDENT: It's my view it's a speculating aspect.

PN417

MR CALVER: Yes, I'll take that question on notice but there's many a slip twixt cup and lip and it's still a Bill. It's got to go through the senate process.

PN418

THE SENIOR DEPUTY PRESIDENT: That's correct.

PN419

MR CALVER: And so I'm basing my submissions on what we believe could be considerations of the Commission arising from the request and the current law.

PN420

THE SENIOR DEPUTY PRESIDENT: Yes.

PN421

MR CALVER: I have seen others excoriated for not doing so in different contexts.

PN422

THE SENIOR DEPUTY PRESIDENT: Sure.

PN423

MR CALVER: So coming onto then the specific issue of inclement weather because as you're aware from Mr Maxwell taking you to his draft, I use this as a first example, that Mr Noonan has stated that our award doesn't contain reference to inclement weather. I must point out a minor error in the Master Builders response. We've said the eighth submission, we got one ahead of ourselves. It should be in the seventh submission, in the fifth paragraph on the first page, the first line.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes.

PN425

MR CALVER: I apologise for that, if you wouldn't mind correcting it. In relation to inclement weather, the CFMEU draft is in large part a replication of clause 21 of the National Building and Construction Industry Award. In our seventh submission, as I've corrected to the Commission, we've made clear our views about occupational health and safety requirements not being of themselves able to be included in modern awards. The argument to that effect is long. It's four typewritten pages of that submission and it's at pages 4 to 8 of that submission. So rather than hold up my friends today I would draw your attention to that argument, sir, and my colleagues' attention to that argument.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes.

PN427

MR CALVER: But essentially it says that an inclement weather provision is designed primarily as an occupational health and safety issue and goes to detail of the argument as to why OH&S cannot be included in substantive provisions. We acknowledge that section 576B(2)(g) of the Act states that in performing your functions under Part 10A the Commission must have regard to the safety, health and welfare of employees. That does not however vindicate or legally permit an extension of a matter that may form terms of a modern award pursuant to 576J and we think that's an error made by the CFMEU where it's seeking to insert not only provisions about inclement weather but the definition of redundancy in clause 12.2(a) of its draft award that Mr Maxwell took you to.

PN428

THE SENIOR DEPUTY PRESIDENT: Just before you're leaving inclement weather.

PN429

MR CALVER: Certainly.

PN430

THE SENIOR DEPUTY PRESIDENT: As I put to Mr Maxwell, the CFMEU clause really has two elements, one goes to circumstances of inclement weather and what's to occur in relation to them and the other is in respect of payments, is it not? Are there two separate elements of the provision, one dealing with payment and the more generally with what you characterise yourself as safety requirements?

PN431

MR CALVER: Yes. The fundamental objective of the clause we say relates to occupational health and safety. If it's characterised as a stand down provision then we refer your Honour to the statement of the Full Bench has indicated that it will not be including stand down because it seems to allude to the fact that the current provisions about stand down are a statutory code. With some temerity the Bill I go to makes it quite clear that stand down will be a statutory code, so that we don't believe that there is any means by which inclement weather can fit into the terms of 576J and certainly the other power that you have, the Request itself does not vindicate the inclusion of such a provision.

PN432

I mean we're not making these arguments to slash award conditions because what we're saying is we're starting with the legal boundaries around which you can and can't create modern awards and that's why our submissions are so detailed.

PN433

THE SENIOR DEPUTY PRESIDENT: I understand that. But 32.7 is not by the nature of a stand down, is it, in the sense that an employer may stand down without pay but rather an obligation to make payments when work is not undertaken because of inclement weather.

PN434

MR CALVER: Exactly, and that is not a matter vindicated by 576J, not a matter that is encompassed within its terms.

PN435

THE SENIOR DEPUTY PRESIDENT: That's not payment of wages?

PN436

MR CALVER: No, it doesn't relate to any of the other items about which the payment of wages would otherwise be characterised because it's not talking about the payment of wages per se. It's talking about occupational health and safety requirements that may address matters as to when work can and can't be carried out. Let me just go to the provision of that. Your argument, sir, would encompass 576J(1)(c) where it says:

PN437

Arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours.

PN438

Well, this is I think a provision that calls up where the specific follows in a list the general is excluded. So it's not about hours of work, it's not about rostering. It's not about notice periods. It's not about rest breaks. It’s not about variation to working hours, except on the basis of occupational health and safety considerations. So we go back to that point of exclusion. Part of the reason that Master Builders brought to fruition the guide to the National Building and Construction Industry Award that took us a very long time to compile, that is, the sixth submission, your Honour, is because a lot of consonance exists between section 513 and 576J and I'm going to take you to a provision that shows that when I get to allowances in a minute.

PN439

But this is one such area of consonance. We've argued in that document that each provision of the NBCIA which could and could not remain following WorkChoices and we say that inclement weather was not vindicated by 513 and that's flowed over into 576J. We say that the CFMEU in seeking to insert the definition of redundancy that was pre WorkChoices has made the same mistake, that there is nothing in the provisions as to what terms may be included in modern awards or which is in the award modernisation request to go to a different definition of redundancy than currently applies as the community standard by reversing - - -

PN440

THE SENIOR DEPUTY PRESIDENT: Doesn't the request expressly authorise industry specific schemes?

PN441

MR CALVER: It does, redundancy schemes.

PN442

THE SENIOR DEPUTY PRESIDENT: Yes.

PN443

MR CALVER: But we're saying by going back to the pre WorkChoices definition of redundancy you are going back to something that is not redundancy. It is not a scheme of redundancy because it doesn't comply with the notion that is adopted in the rest of the statute that is the community standard in respect of redundancy. It goes back to the definition which relates to dismissal for any reason save misconduct. Now, I must say, your Honour, that this matter, this very matter is the subject of Federal Full Court proceedings which were adjourned last week as to whether or not the prior pre WorkChoices matter is a matter relating to redundancy or is in fact an employee incentive payment and that the Full Federal Court was addressed by both senior counsel for the CFMEU intervening, senior counsel or QC for Master Builders and senior counsel for the respondent in the matter which was appealed.

PN444

So these are very nice legal questions, as I said, currently before the Full Federal Court. I make the proposition now, your Honour, that we say that the definition cannot revert to the pre WorkChoices definition for the broad argument that I have made. Redundancy has been defined quite categorically in the statute. It's been defined quite categorically in the NES to mean what the community standard was and whilst you may have industry specific schemes dealing with redundancy, redundancy has to be defined in terms of the NES. It can't be defined in terms of something different which is encompassed by the definition in the CFMEU instrument that is at clause 12.2(a).

PN445

THE SENIOR DEPUTY PRESIDENT: Where does your draft deal with redundancy?

PN446

MR CALVER: I beg your pardon, sir, I didn't hear that?

PN447

THE SENIOR DEPUTY PRESIDENT: Where does your draft, the exposure draft in November, the on site, where does that deal with redundancy?

PN448

MR CALVER: Well, it certainly does deal with redundancy and deals with redundancy in a place that I have put my hands on. I'm afraid it doesn't have a table of contents at this point, sir. I apologise for that.

PN449

THE SENIOR DEPUTY PRESIDENT: Yes.

PN450

MR CALVER: It's because of the fact that it is a work in progress, particularly in relation to allowances which I will take you to soon.

PN451

THE SENIOR DEPUTY PRESIDENT: Yes, I've found it. It's clause 11.

PN452

MR CALVER: Thank you, yes. So the definition takes up, as is required, the NES. It says:

PN453

An employer bound by this award may utilise the construction industry redundancy scheme in substitution for the redundancy provisions of the NES.

PN454

Encapsulating the very argument that I've put to you that it must be substitution of redundancy provisions of the NES and therefore must come with a definition of redundancy which is the same as that which exists in the NES.

PN455

THE SENIOR DEPUTY PRESIDENT: So you've proposed what the CFMEU has proposed but only operative in the case of redundancy rather than cessation of employment.

PN456

MR CALVER: Rather than in dismissal for any reason save misconduct, the prior corrupted definition of redundancy pre WorkChoices. And as I say, there is a comprehensive Full Federal Court decision - sorry, hearing on this matter which has been adjourned for decision which may well take a Full Bench presided over by Spender J some considerable time to reach a judgment about. But this very nature is in contention as to whether or not the prior redundancy clause has had any validity post WorkChoices and in that it's argued to be and was found to be by an Industrial Magistrate, the Industrial Magistrates Court of South Australian found to be an employee incentive payment rather than a redundancy payment.

PN457

THE SENIOR DEPUTY PRESIDENT: What is the name of the case?

PN458

MR CALVER: Pardon me, sir?

PN459

THE SENIOR DEPUTY PRESIDENT: The name of the case.

PN460

MR CALVER: I should know the case. I've been doing lots of work in relation to that. I will give the Commission notification in writing of that.

PN461

THE SENIOR DEPUTY PRESIDENT: Thank you for that.

PN462

MR CALVER: I'm sorry, I haven't written it down. It should be in the forefront of my mind but it isn't at the moment. We'll give you a note about that, sir, which could be posted on the website.

PN463

THE SENIOR DEPUTY PRESIDENT: Yes. So you have in fact maintained an industry specific redundancy scheme but you say modified it to reflect the situation with redundancy?

PN464

MR CALVER: The way I have encapsulated it is that we have flowed over the industry specific redundancy scheme, that is, the ability to pay into a fund on the same basis as existed in that which remained of clause 16 of the NBCIA following WorkChoices. We've flowed that over linking it with the legitimate definition of redundancy in the NES, the only basis upon which you could therefore substitute a scheme in relation to the NES.

PN465

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN466

MR CALVER: The next issue is accident make up pay and Master Builders dealt with this issue at pages 8 to 9 of our fifth submission to the Commission and I refer you to that legal analysis. We say again that this is not a permitted matter. We say that for the reason good reason that it is not an allowance which is able to be accommodated as such under terms of section 576J and we take the Commission through each of the subparagraphs of section 576(1)(g) that relate to allowances arguing how it is that the notion of accident make up pay cannot be accommodated by any of those categories. It's on pages 8 to 9 of our fifth submission. That is something - yes, thank you. The case is Yirra Pty Ltd (trading as Richmond Demolition and Salvage) v. Summerton and it should have been at the forefront of my mind, thank you very much my colleague from AIG for jolting me to that reality.

PN467

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN468

MR CALVER: So yes that is the matter before the courts. Yirra, Yirra Pty Ltd (trading as Richmond Demolition and Salvage) v. Summerton.

PN469

THE SENIOR DEPUTY PRESIDENT: Yes.

PN470

MR CALVER: It should have been ingrained given the cost and expense and time and money of a full Federal Court matter. As I was saying, accident makeup pay. Part of the reason that there is cogency in supplying the Commission with the WorkChoices compliant NBCIA as we see it with our guide as to the reasoning that we reached that conclusion is because the provisions of
section 513(1)(h) and section 576J(1)(g) are exactly the same. So in respect of any analysis that is made about allowances that were not able to survive WorkChoices, the legislature has made the decision that they should not survive award modernisation.

PN471

THE SENIOR DEPUTY PRESIDENT: What do you say as to the Commonwealth's submission in respect to that issue?

PN472

MR CALVER: It is a submission like any other. If it were to be determinative of the matter then the government had it open to it to amend the request as it did when I pointed out a matter that was subsequently denoted as a typographical error that would have limited the Commission's powers to creating industry and enterprise awards. It has the capacity to amend the terms upon which award modernisation can be undertaken, and with the greatest respect to the Commonwealth it is another argument before you which doesn't, I don't think, go to the detail of seeing where this allowance might fit within the terms of section 576J(1)(g). I think it's at a - if I may say so - a less detailed level than that. However, a highly potent submission, I grant you but it's still a submission, not the basis upon which the Commission is to be directed with respect.

PN473

THE SENIOR DEPUTY PRESIDENT: Yes.

PN474

MR CALVER: I sympathise with the dilemma of the Commission when the Commonwealth chooses to make submissions in that way. The next issue in
Mr Noonan's letter to which we have responded is overtime rates for casuals not to include the casual loading. This is an area where we are quite prepared to have discussions with the CFMEU. We contest, however, that the current NBCIA provision in fact provides overtime on the loaded rate. That is open for argument. There are also other Building and Construction Industry Awards which do not have overtime based on the loaded rate. This is another argument for having a general protection to employees and then having a specific provision which makes sense and is easy to understand. I will take you to clause 4.3 of the Building Products Manufacture and Minor Maintenance Award in the State 2003 of Queensland which is an example of a NAPSA which doesn't have the payment of overtime on the loaded rate.

PN475

There should not be a rule, we would say, that says that the NBCIA is the grundnorm and can't be deviated from. We say you start from the proposition that the Commission is required to create these awards and that which is accessible, that which satisfies the object of the request should be chosen over that which is a part of the history of these awards. One of the reasons for that, your Honour, is that we are moving from awards being artefacts of disputes that were creatures of the parties to something akin to statutory conditions which are created, underlined, by the Commission as an extension of this statutory safety net. That’s is a very real distinction that should be borne in mind, that the parties no longer have the integral ownership of awards that they previously did in this Commission.

PN476

So that when those appearing before you, make a plea to history, there has been a sufficient legislative schism between the artefacts of industrial disputes and what should be in modern awards because of the different head of power and because of the way in which parties to these instruments no longer have relevance. The key jurisprudential underpinnings of awards now will be coverage and application. The Minister has made that quite clear in her submission again to the Commission. The Bill makes it clear - the request doesn't make it quite as clear as it should but in my submission there has been a sufficient disconnection with history that those matters that were givens in a particular industry sector should not be so treated.

PN477

THE SENIOR DEPUTY PRESIDENT: Well, we're taken back to history by the objects of not imposing costs and not disadvantaging employees aren't we?

PN478

MR CALVER: With respect we think the global provision in that regard of the kind that I have referred you to would be a much better mechanism than making these instruments, instruments that did not, for example, promote economically sustainable and flexible modern work practices and the efficient productive performance of work, that would not make them simple to understand and easy to apply. That's one of the reasons that we have started doing what the Full Bench in respect of allowances urged upon the Mining Industry in the 12 September statement I think at paragraph 62 where it said go away and rationalize your allowances, and I will take you to that in a minute, sir. That is why we have started that process.

PN479

THE SENIOR DEPUTY PRESIDENT: Yes.

PN480

MR CALVER: In respect of overtime and other issues that have been raised and shift work, again we point to the Building Products Manufacture and Minor Maintenance Award State 2003 which has a different provision from that which has been proposed by Mr Maxwell. Our award has no fixed position on allowances. As I mentioned, and it was paragraph 62 of the 12 September statement, the Full Bench has asked the parties to the Mining Industry Award to consider a rationalization of allowances for use in a modern award. We took that to mean that all parties to modern awards would be asked to look at the rationalization of allowances, given the fact that our industry has probably - not probably, has more allowances that apply to it than any other sector. We started that process, and we are open to discussions on the matter, as part of our seventh submission.

PN481

As part of our seventh submission we provided to the Commission a schedule which is headed attachment B to that submission, National Building and Construction Award 2000 allowances provisions. It is a complicated table but one that does a number of things. It sets out from the NBCIA all of the allowances that are currently payable. It then describes them and places them into one of the three categories that are in section 576J(1)(g), that is the mirror of section 513 that I referred to you before, ergo bringing into account again Master Builders National Building and Construction Industry Award as we believe it stood post-WorkChoices with the accompanying guide. So that is a useful instrument in rationalizing awards. There is a remark about what the allowance is for. The amount that it is currently payable adjusted to 31 October, whether or not it's paid by a unit per hour or by the week and then what we say should happen in respect of that allowance.

PN482

We also make the proposition that as part of award modernisation there should be the notion of a composite allowance. There are a number of allowances that should not be paid at the same time. I use the big word "contemporaneously" in paragraph 6.1 of the submission but we submit that where an employee is entitled to extra rates on the same job, employers should be bound to pay only one rate. How is that vindicated in the current structuring of the Building and Construction Industry? Well, it is vindicated by clause 22.1 of the National Metal and Engineering Onsite Construction Industry Award. It says,

PN483

Where more than one of the following disabilities entitling an employee to extra rates exists on the same job, an employer should be bound to pay only one rate, namely for the highest disability so prevailing.

PN484

Then there is a proviso and then a list. That is a starting point for consolidating some of the allowances in our assessment but certainly we hope that the attachment to that submission will assist the Commission in seeing where either these matters can be transferred to a restructured classification scheme, they can be aggregated as a composite disability or they are no longer permitted to appear in a modern award because of section 576J(1)(g). Because of the controversy surrounding allowances and the manner in which we believe they need to be legally treated now, we did not slot them into our modern award draft but instead gave you that attachment, sir.

PN485

It can either be advanced by the parties, facilitated by you or otherwise, but certainly we believe that it is a useful starting point to look at what allowances can or cannot legally be permitted to obtain for the future. So what have I said? Well, Master Builders as I said have given seven lengthy and detailed submissions to the Commission. The underpinning assumptions in those submissions are that in order to comply with the modern award request there is a need to view modern awards as different entirely from the artefacts of industrial disputes, to connect them to the NES in a way that is simple, in a way that builds upon those legislative employment standards such that they can be understood by an average building worker.

PN486

We say that the NBCIA currently fails that test inasmuch as anybody understands what the current NBCIA actually does. To that extent we have provided you with a comprehensive document that goes through each of the provisions of the NBCIA as to whether or not they survived WorkChoices, particularly the allowances, and why that be so in a guide, and that is part of the submissions before you. We have taken that to the next step so far as allowances are concerned and have started suggestions about how to consolidate them, those which are otiose and those which should remain. The other thing that I have encompassed is that we also viewed the modern award draft before you as very much a start of work in progress and that it would assist the parties greatly if the Commission could give an early indication of the nature and extent of the awards, particularly so that some of the grave concerns that have been communicated to me by the Electrical and Plumbing sectors can be dealt with. Having regard to the fact that there needs to be something akin to a reverse onus of proof applied in the creation of occupational awards. If it pleases the Commission.

PN487

THE SENIOR DEPUTY PRESIDENT: Mr Calver, one of your submissions I think addressed the National Code of Practice for the Construction Industry, is that correct, and suggested that modern awards should be consistent with that Code?

PN488

MR CALVER: Yes, mostly we have at the moment a set of terms and conditions in the National Code of Practice and Implementation Guidelines that are reflected in our modern awards. We don't have that happy situation in respect of some of the NAPSAs. Even if the government does not go beyond it's current promise to keep all of the principles including the National Code and Implementation Guidelines beyond 31 January 2010, there is the possibility of those terms and conditions applying for five years beyond 31 January 2010.

PN489

THE SENIOR DEPUTY PRESIDENT: But they are subject to administrative variation are they not?

PN490

MR CALVER: They are, but the reason they will inure for five years beyond
31 January 2010 is that all Commonwealth tenders that are currently let for buildings and other structures beyond the minimum amount specified in the Code and Guidelines as a condition of that tender and therefore part of the contractual terms and conditions that govern that site are that the National Code and Guidelines as in a particular contract will be applied. So what you have are terms and conditions of contract which reflect the National Code and Guidelines, rather than another instrument. So albeit that they are not a statutory building code, they will inure for five years beyond 31 January 2010 in many instances because they will be part of the terms and conditions under which that work must be constructed. There will be no way in which the contract can be administered properly unless the instruments which govern that particular site reflect the Code and Implementation Guidelines.

PN491

THE SENIOR DEPUTY PRESIDENT: There is nothing in the request to reflect such administrative arrangements and requirement to have regard to them is there?

PN492

MR CALVER: Well, the object of 1(c) must be economically sustainable, certainly substantiates the argument because if I am a contractor, your Honour, and it's December 2009 the Code and Guidelines are in place because the government's document "Forward with Fairness" has promised to keep them until 31 January 2010.

PN493

THE SENIOR DEPUTY PRESIDENT: Has it promised to keep the current guidelines in their current form or some version of them?

PN494

MR CALVER: The promise in forward with fairness is to keep the principles which currently maintain the Building and Construction Industry reforms. We have taken that to be the current National Code and Implementation Guidelines. There has been nothing that has emanated from the government to suggest otherwise. However, even if as of today's date - and I will continue with my example because it is pertinent - even if it were as of today's date, five years hence they would still apply because of this process. I am the contractor, say I am in the civil industry and I can contract with the government to build a bridge. The bridge costs $40 million. I am required to adhere to the Code and Guidelines. The Code and Guidelines and the clauses which emanate from the implementation guidelines are taken up as part of the tender conditions and are part of the contract that I signed to build that bridge. The industrial instruments which underpin the building of that bridge are going to be maintained with the reflection of what was in that tender document, because there is no way - - -

PN495

THE SENIOR DEPUTY PRESIDENT: That will generally reflect an enterprise award, will it not?

PN496

MR CALVER: A Greenfields Agreement or an Enterprise Agreement, yes.

PN497

THE SENIOR DEPUTY PRESIDENT: Which will displace the award. The award wouldn't have any application in those circumstances.

PN498

MR CALVER: Sometimes it displaces it and under the new Bill, again which I mention with some temerity - - -

PN499

THE SENIOR DEPUTY PRESIDENT: Which isn't an Act.

PN500

MR CALVER: Yes, which need not be the case because you'll be able to call up awards and other documents. However, the National Code and Guidelines will still apply for however long they might last and if the award is to have application to any of those projects, if I'm a subcontractor, for example, I come onto that project, I'm required - the principal is required to impose the same terms and conditions on me. If I have award terms and conditions that apply to me as the subcontractor that are not Code and Guidelines compliant, then I'm excluded from work on that project.

PN501

THE SENIOR DEPUTY PRESIDENT: How can we apply an administrative arrangement which is subject to variation? To illustrate that I've been involved in disputes within the building industry where frankly, the employer has tended to be more frustrated than the union that they reach an agreement which is code complaint on the basis of what they're told by relevant administrators and negotiate such an agreement with the unions and are then told the outcome is not code compliant and they have to go back again and do it again. It seems to me to be subject to administrative changes and administrative arrangements in a very short timeframe.

PN502

MR CALVER: To answer your question, your Honour, there is nothing in the Modernisation Request which would preclude you from making modern awards which complied with the National Code and Guidelines.

PN503

THE SENIOR DEPUTY PRESIDENT: At what point of time? They may change and will there be provision then to vary the modern awards to deal with additional items which are no longer code compliant or to put back in items which become code compliant?

PN504

MR CALVER: Part of the reason I went on with my fairly long example of how the Code and Guidelines are taken up in the current law is to illustrate that they become part of the current law binding on people in this industry through the terms and conditions of a contract which are required to be signed by the Commonwealth. The Commission can only act upon the basis of the law that it is able to discern either from the statute, the Modernisation Request or from the environment. We say that the National Code and Guidelines are something which confronts those builders who must deal with the Commonwealth, it's taken up in their terms and conditions of employment and it's a matter which we must point out to the Commission, because if there was a bifurcation at that point, then a great deal of administrative and contractual difficulty would be encountered by the industry.

PN505

THE SENIOR DEPUTY PRESIDENT: There is currently a statutory bifurcation, is there not? There's no specific reference to the code in the request. As you pointed out earlier the Commonwealth could have included that if it so intended.

PN506

MR CALVER: But there's nothing to preclude the Commission taking that matter into account as there are many other issues from which it's precluded so that we would say that it's a matter that you can encompass in relation to achieving the objectives of the request and there is nothing in the request which would preclude such considerations.

PN507

THE SENIOR DEPUTY PRESIDENT: Finally, on this issue, Mr Calver, your seventh submission here included the exposure - sorry, your exposure draft on the Onsite Building Construction Industry Award, I take it from what you said before that you've dealt with any issues of code compliance within that. There are no non-code compliant matters within that draft, your draft.

PN508

MR CALVER: We're certain of that, yes.

PN509

THE SENIOR DEPUTY PRESIDENT: Just so that I can appreciate my colleagues on the Full Bench the practical significance of the issue, are you able to identify any elements of say the CFMEU draft which you say would fall foul of your position in respect to the National Code Building Industry Guidelines?

PN510

MR CALVER: In my brief perusal of their first draft, there was nothing I could detect, but certainly we'll have a look at their second draft and inform you as to that.

PN511

THE SENIOR DEPUTY PRESIDENT: If their first hasn't altered the situation, there may be no practical issue.

PN512

MR CALVER: We didn't sit down with that intent in mind so if we can take that on notice, it would be much better.

PN513

THE SENIOR DEPUTY PRESIDENT: I'd appreciate it.

PN514

MR CALVER: There's nothing that jumps out at me, your Honour, but it will be a process which we will need to go through so if you can give us some time to do that we will try and get that in before - - -

PN515

THE SENIOR DEPUTY PRESIDENT: That would be helpful. It will identify whether it's a practical issue of any moment or not.

PN516

MR CALVER: If it please the Commission.

PN517

THE SENIOR DEPUTY PRESIDENT: Who is next? Yes, AIG, is it?

PN518

MR ERMER: Your Honour, I appear on behalf of the Australian Industry Group, colloquially known as AIG but I think we get to call them AI Group. I don't want anyone to be confused - and on behalf of the Engineering Employers Association of South Australia.

PN519

THE SENIOR DEPUTY PRESIDENT: It's AIG Group with a little I.

PN520

MR ERMER: No, AI Group, yes, with a small I, yes, your Honour.

PN521

THE SENIOR DEPUTY PRESIDENT: It annoys me constantly but never mind.

PN522

MR ERMER: The people down the road at AIG wouldn't be too happy if we did otherwise, your Honour.

PN523

Our written submissions of 31 October set out views in detail, your Honour, and we don't intend to was the Commission's time by repeating those but what we would like to do is briefly outline five issues that are raised and are already the subject of some submission or consultation today. the first issue, your Honour, is the titles of constructions industry awards, that's the first issue. The second issue is the scope and conditions of the proposed Civil Construction Industry Award 2010. The third issue is the additional comments on the proposed Offsite Construction Industry Award, the AI Group's and EEASA, the Engineering Employers Association of South Australia, that's what their colloquially known as, the additional comments on the proposed Offsite Construction Industry Award. The fourth matter we briefly wish to deal with is AI Group's position on the modernisation of electrical Contracting Industry Awards. The fifth issue is AI Group's position on the modernisation of the Plumbing Industry Awards.

PN524

THE SENIOR DEPUTY PRESIDENT: Mr Ermer, you've provided to my associate another version of the Civil Construction Industry Award, a draft. That was filed in the normal way and doesn't require - - -

PN525

MR ERMER: Yes, it was filed, as I understand this morning about 5.47 am to [e-mail].

PN526

THE SENIOR DEPUTY PRESIDENT: It doesn't require separate identification.

PN527

MR ERMER: No, your Honour. I should say the issues today have raised a sixth matter that I wish to raise which is the Metal and Engineering Onsite Construction Industry Award, the modern award. That would be our sixth issue. Your Honour, I will try and keep it brief and I'll do my best not to mention any animals.

PN528

THE SENIOR DEPUTY PRESIDENT: You've got the monkey off your back then.

PN529

MR ERMER: The titles of Construction Industry Awards is the first issue that I wish to speak of and some might say what's in a title? Well, I think we've seen the recent issues concerning the extension and variation of pre-reform agreements have certainly brought up issues as to whether or not a title is important or not. As the Commission is well aware, there has been a great deal of disputation over the years in relation to the issue of the dividing line between Construction Industry Awards and awards in industries like manufacturing and services. Therefore, it's imperative that the scope of the modern Construction Industry Awards be clearly drafted and based upon existing Construction Industry Awards. The scope needs to be limited to onsite construction. The construction industry, as we've put, your Honour, is an onsite industry. It is not an offsite industry. If we're talking about offsite construction, we're talking about manufacturing. That will come through in our submissions.

PN530

The CFMEU's proposed title in their award of Construction and Related Industries Award 2010 is not appropriate. Related industries are not the construction industry and shouldn't be referred to in the title or body or any Modern Construction Industry Award. Again, I said I'd keep myself brief, your Honour. those are the submissions on the titles of awards.

PN531

THE SENIOR DEPUTY PRESIDENT: You've come to the agreement that
Mr Maxwell referred to as the principal's ..... in that regard.

PN532

MR ERMER: Yes, I can confirm that the document that you've marked as CFMEU Construction Consultation 2 represents the document that is the agreed position between the CEPU and AI Group.

PN533

THE SENIOR DEPUTY PRESIDENT: Good, thank you, Mr Ermer.

PN534

MR ERMER: Your Honour, the second matter that I wish to speak on is the scope and conditions of the Civil Construction Industry Award 2010. As set out in our submission of 31 October AI Group has drafted a Modern Civil Construction Industry Award, had that filed this morning in the early hours, and it's been forwarded at the same time in an email to the AWU, the CFMEU and the MBA. I've had requests tabled here for a copy of those. I do apologise, I've done my best to circulate my copy amongst the table but I didn't have a copy until the early hours of this morning.

PN535

I should note that we apologise for the delay in filing this draft. There has been a lot of resources of ours that have been drawn into the award modernisation process and have been involved in a number of stages and hence the delay, but we do apologise.

PN536

THE SENIOR DEPUTY PRESIDENT: I know how you feel, Mr Ermer.

PN537

MR ERMER: As I say 5.47 wasn't when we got up, your Honour, I can tell you.

PN538

In considering the draft, we would, however, like you to note the following points, your Honour. The scope of that draft - I should ask, do you have a copy of it before you?

PN539

THE SENIOR DEPUTY PRESIDENT: I do, yes.

PN540

MR ERMER: The scope that you have before you is based heavily upon the scope of the Federal AWU Construction and Maintenance Award. In fact, you'll see that it is very similar to the scope and, in fact in many of the terms, to the AWU Proposed Construction and Maintenance Award that's been filed with the Commission as well in this process. There are a number of issues that we're just trying to work through but we expect that within the next few days we'll actually be able to come to some agreement with the AWU and revert further back to the Commission on that. We might have a joint position on that, your Honour.

PN541

The draft award, though, formally contains an exemption for work carried out under the Manufacturing and Associated Industries and Occupations Award 2010, the modern award. Most of the conditions, you'll see as I've said, are based on the AWU Construction and Maintenance Award, the federal award, but we've also put in some draft clauses based on the federal award which applies to the Civil Construction Industry in Western Australia. The only reason we've done this, your Honour, is we believe these to be simpler and reflective of the objectives in the award modernisation process. As an example I'll give you the hours of work provisions which are simpler. Again we intend to speak with the AWU over the course of the next few days to see if we can come to a joint position on that. As I said, I'd like to keep it brief and I wouldn't propose to say anything further on the draft Civil Construction Industry Award, your Honour.

PN542

Thirdly, I take you to the matter that I raised with our opposition to an Offsite Construction Industry Award and you'll see, your Honour, and I note that it has been mentioned earlier in the morning of non-opposing positions. We'll take that provision in certain respects as well but we are opposed strongly to an Offsite Construction Award. We'll give the Commission an indication of where we're coming from.

PN543

As we've set out in our written submissions, and I should say our written submissions are primarily paragraphs 13 to 55 of our submissions of 31 October 2008. We're strongly opposed to the making an Offsite Construction Industry Award. As you will see later, there's no problem necessarily with an Offsite Award for various matters but an Offsite Construction Industry Award we do have a problem with. In our submission there is no such thing as offsite construction, it is manufacturing. Construction is an onsite industry and I don't think that many people at the bar table will disagree with me on that.

PN544

THE SENIOR DEPUTY PRESIDENT: You'll probably find out who do later.

PN545

MR ERMER: I'm listening to the sotto voce as you speak. We've discussed our concerns with the CFMEU and various other parties and late last week, as Mr Maxwell pointed out, we reached some agreement, as I understand it was Friday evening from my colleague, Mr Stephen Smith, reached some agreement for some principles for the making of a Joinery and Building Trades Award 2010 rather than an Offsite Constructions Industry Award. I had intended to tender that if my friend hadn't, but he has.

PN546

Your Honour, I do note that in considering the agreement having been reached, there are a number of important issues which I would still like you to bear in mind. I should say that one of the names of the current award is the National Joinery and Building Trades Products Award. The name that we propose is the National Joinery and Building Trades Award, not products award, and you'll see there's some significance in the name.

PN547

First of all, we'd like you to bear in mind, your Honour, that there is no agreement between the parties on what the scope of the proposed Joinery and Building Trades Award 2010 is.

PN548

THE SENIOR DEPUTY PRESIDENT: The distinction you've made seems to suggest an Occupational Award. Is that intended?

PN549

MR ERMER: Your Honour, what we're suggesting is that there shouldn't be an award which builds in the products that are supplied into construction into the construction industry. Exactly what form, as I said in my submissions, it takes is up in the air at the moment, your Honour. As I say the agreement we've reached reflects an in-principle agreement. Both parties - when I say both parties - consider that the scope of the National Joinery and Building Trades Products Award is a relevant consideration. Both parties, namely the CFMEU and the Australian Industry Group, AI Group, oppose the MBA's extremely expansive and damaging approach of the award being based upon the scope of the Building and Construction Industry Improvement Act. You'll see some submissions that go to those issues in our submissions, your Honour.

PN550

THE SENIOR DEPUTY PRESIDENT: I do indeed.

PN551

MR ERMER: However, we also believe that the scope of the Offsite Construction Industry Award, which the CFMEU has submitted, is inappropriate, that's the Offsite Construction Award. The scope of the proposed modern Joinery and Building Trades Award is an issue that requires a great deal of consideration and discussion between the parties. When we say the parties, we'll be talking to the CFMEU, and hence the AI Group proposes that the making of any modern Joinery and Building Trades Award be deferred until a later stage of award modernisation. When I say later stage, your Honour, I'm talking about discussions that are hence now are continuing through so that at a later stage, say 3 or 4, that an award be made that's relevant.

PN552

Secondly, your Honour, AI Group and the CFMEU have a difference of view on the modernisation of award structure for a number of industries in the manufacturing group of stage 2. We've presented in-principle joint positions but there are some issues there. In the manufacturing group consultations, you'll see in our submissions there of stage 2, your Honour, we go into the manufacturing industry at page 42 where they commence in our submissions - page 42 of our submissions dated 31 October 2008. In those we've supported the 11 industries in the manufacturing group stage 2 being incorporated into the Manufacturing and Associated Industries and Occupations Award 2010, including, for example, clay and ceramics, glazing, insulation materials and furniture. We continue to support this position and submit that the glass industry, the clay and ceramic industry, the furniture industry and all of the other industries at stage 2 manufacturing group should be incorporated into a Manufacturing and Associated Industries Award 2010. AI Group has a major concern about the potential for any Offsite Construction Industry Award in this regard, your Honour, so we just want to point that out to you as the second issue that we raise under this banner.

PN553

Thirdly, again to keep it brief, your Honour, we have a major concern and you'll see that's reflected in the in-principle agreement that we've reached with the CFMEU. We have a major concern, your Honour, about the potential of any Offsite Construction Industry Award leading to an expansion in the scope of portable long service leave and severance schemes in the construction industry. The use of the term "offsite construction" has major implications that increases this risk. The CFMEU, pleasingly as I've said, have put in a joint position with us that in principle says, "Look, they don't think that it should be used for those purposes as well and they see the risk that offsite construction would be used to increase the scope of these schemes," but these schemes at the moment, there have been a number of issues in relation to them and their expansion. We see the award modernisation process, if it was to allow that expansion to continue, that it would inappropriately be beyond the construction sector, your Honour. That would be the third issue that we raise under the banner of, I guess, our concerns that continue with the Offsite Construction Award, notwithstanding the in-principle agreement we've got from the CFMEU which is reflective in exhibit CFMEU1.

PN554

Your Honour, as I said, I don't intend to dwell on any of those issues but now we'd like to go onto the fourth issue, Electrical Contracting Awards. You'll see in our submissions, your Honour, at paragraph 52(7) which is at page 23 of our submissions. You'll see we'll refer in some detail to the position that we've put out in relation to the electrical contracting industry. That position is summarised as follows, any Electrical Contracting Award should not have a scope which extends beyond the existing Federal Electrical Contracting Award continuing exemption for work carried out under the Manufacturing and Associated Industries and Occupational Award 2010.

PN555

So taking some risk, your Honour, I would say we don't oppose the position that has been put by other parties that there be a separate award. But consideration also needs to be given not only to this exemption that I've just mentioned in relation to the Manufacturing and Associated Industries Occupation Award, but appropriate exemption as we mentioned in our submissions for work carried on in the ICT industry, is awards are modernised in that industry as well, your Honour. You will see that paragraph 52(7) of our written submission also sets out the terms of the agreement reached between the AI Group, the CEPU and MECCA on the exemption for the Manufacturing and Associated Industry Award 2010. So there is an agreement that's been reached between the parties.

PN556

The AMWU were also involved in the negotiations and have agreed on the terms of the exemption as I understand it. We urge the Commission to be mindful of the agreed relationship between the two awards and when drafting the scope an exemption for the Electrical Industry Award. The key element, your Honour, is that modern - I say modern - electrical contracting award can not apply to employees who are currently and legitimately employing electricians under the Metal, Engineering and Associated Industries Award 1998.

PN557

THE SENIOR DEPUTY PRESIDENT: Have you had any opportunity to look at the MECCA and EPU draft which I think coincide in relation to definitions and application for definitions relevant to application.

PN558

MR ERMER: Yes.

PN559

THE SENIOR DEPUTY PRESIDENT: Have you had a chance to?

PN560

MR ERMER: I have had a brief look at that. As I understand that goes a bit further than we would like, your Honour, in terms of not having this come about.

PN561

THE SENIOR DEPUTY PRESIDENT: Could you identify then at some stage in what areas?

PN562

MR ERMER: Indeed I will, your Honour.

PN563

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN564

MR ERMER: So again at the wish of being brief, your Honour, that summarises our position on the electrical contracting award.

PN565

THE SENIOR DEPUTY PRESIDENT: Now it's Mr Cooney's turn?

PN566

MR ERMER: Pardon?

PN567

THE SENIOR DEPUTY PRESIDENT: Mr Cooney's turn? The plumbers?

PN568

MR ERMER: I'm sure. We're not going in seriatim yet, but he's welcome to get up. But I thought I might - - -

PN569

THE SENIOR DEPUTY PRESIDENT: No, you're dealing with the plumbers.

PN570

MR ERMER: Yes, yes.

PN571

THE SENIOR DEPUTY PRESIDENT: In which Mr Cooney has an interest.

PN572

MR ERMER: Yes. Well, he's probably going to be interested to hear this. Your Honour, AI Group has a view that in terms of the plumbing award, so that's the fifth issue that I wish to speak of today, that if there is to be a separate plumbing award it should cover contracting work in the areas of one plumbing, two gas fitting and three drainage. In short the scope can be very simple and very short and reflecting of the award modernisation request. The application should also refer simply to contracting work in these three areas. It should, consistently with the approach we have taken in the electrical contracting industry as well, it should contain exclusions for work carried out under the following two awards, the Manufacturing, Associated Industries and Occupations Award 2010 and the proposed Metal and Engineering On Site Construction Industry Award 2010.

PN573

Not too many people have mentioned that yet, your Honour, but I intend to.

PN574

THE SENIOR DEPUTY PRESIDENT: Yes.

PN575

MR ERMER: I do have some matters which my friends might be interested to hear as well in terms of the draft award that's been submitted by the Master Plumbers and Mechanical Services Association of Australia.

PN576

THE SENIOR DEPUTY PRESIDENT: Yes.

PN577

MR ERMER: I should make myself clear in terms of the application for a separate award, again at the risk of upsetting the Commission, we don't oppose that application. But what we do feel is that the Master Plumbers and Mechanical Services Association of Australia draft award is inappropriate in the terms that's sought. If it's made in the terms sought, your Honour, it would substantially expand the scope of plumbing industry awards and substantially disturb the employment arrangements of employers and employees currently covered under the Metal, Engineering and Associated Industry Award 1998 and the Metal and Engineering On Site Construction Industry Award 2000.

PN578

The existing Metal, Engineering and Associated Industry Award 1998 - and I apologise I'm giving you the whole name, your Honour, because these proceedings are pretty important and as I said titles are important - applies to the manufacture of a wide variety of plumbing fittings, gutterings, pipes and other items used in the plumbing industry. Agreement has been reached with the CEPU and the other MTFU unions, namely the Metal Trades Federation of Unions, the AMWU, AWU, CFMEU, CEPU, LHMU and the NUW that the Modern Manufacturing Award will apply to plumbers employed in establishments covered by the award.

PN579

This agreement is reflected in the exemption in clause 4.5(a) of the modified scope clause which AI Group has submitted to stage two. You will see that at appendix F to our submissions, your Honour. That's our submissions dated 31 October. The exemption is similar to the one which appears in the existing Metal, Engineering and Associated Industries Award 1998. So, your Honour, the existing Metals Award also applies for the manufacture of air-conditioning and refrigeration systems and a great deal of maintenance and service work is carried out by staff covered under that award. The award contains specific sections setting out wages and conditions for air-conditioning workers in South Australia and Queensland.

PN580

Another relevant award is the Metal and Engineering On Site Construction Industry Award which applied to the installation of air-conditioning and refrigeration systems on construction sites. It is highly inappropriate in our submission, your Honour, that air-conditioning and refrigeration work be removed from the coverage of the metal industry awards and covered under a plumbing and mechanical contracting award as proposed by the Master Plumbers and Mechanical Services Association of Australia. Your Honour, this is a comment that relates not just for the plumbing industry but to those that I think might - my friend from the AW, Mr Herbert, raised earlier.

PN581

As the Commission would be aware over the years there have been numerous demarcation disputes in the industry involving the Plumbing Union and the Metal Workers' Union. Removing the air-conditioning and refrigeration industries from the metal industry awards under the guise of the award modernisation and incorporating these industries into a modern plumbing award would be a recipe for disruption, disputation and just various issues, your Honour, that I don't know that we even want to contemplate but I think we are as we are in this room. Your Honour, notwithstanding the fair work bill issues of demarcation are relied, they will be alive and unwell perhaps in the award modernisation process, not just in the off site versus on site construction debate, but also in the Master Plumbers if the Master Plumbers' draft were to be accepted by the Commission.

PN582

THE SENIOR DEPUTY PRESIDENT: But they arise from all manner of things, don't they, in practice? And one area that has arisen in respect of plumbing is a demise of tin roofs and use of other materials and that has caused some disputes between unions as to coverage.

PN583

MR ERMER: Yes.

PN584

THE SENIOR DEPUTY PRESIDENT: When I say demise, the use of other materials, no tin.

PN585

MR ERMER: Yes. Look, I think, your Honour, as I've mentioned in terms of the award modernisation process I think you would want to be minded, as our submissions suggest and I bring you again to them, that the issues of demarcation are alive and well and we seek to avoid those rather than make awards and it doesn't arise.

PN586

THE SENIOR DEPUTY PRESIDENT: Yes.

PN587

MR ERMER: That said, your Honour, I bring myself to my final submission on the Metal and Engineering On Site Construction Industry Award. So that's the sixth issue I wish to broach today, your Honour. I note that the AMWU in their submissions have said that they remain, I think the words were aloof, to the issues and sitting on the fence at the moment. Well, I'd just like to make sure that we avoid getting any splinters here and say that the AI Group and the union parties to MECCA, as I understand, being the AMWU, the AWU and also the CEPU, have not discussed in detail but as I understand are intending to work towards a draft Metal and Engineering On Site Construction Industry Award.

PN588

As I understand from the unions that is something that they support and that the existing Metal and Engineering On Site Construction Industry Award 2000 will form somewhat of a base or at least a starting point for those discussions, your Honour.

PN589

THE SENIOR DEPUTY PRESIDENT: That area of industry currently falls within the CFMEU's on site draft, is that correct?

PN590

MR ERMER: Yes, as I understand it.

PN591

THE SENIOR DEPUTY PRESIDENT: Yes. And similar the MBA's on site draft?

PN592

MR ERMER: Indeed.

PN593

THE SENIOR DEPUTY PRESIDENT: Yes.

PN594

MR ERMER: So in fact what the MBA are now presenting is three different awards, being the Civil, the On Site and the Off Site. We're saying three different awards and potentially two others being the Civil, the MECCA or Engineering Construction Award and also the Construction Award which would be effectively what's not captured by the Civil Award and the Engineering On Site Award, your Honour.

PN595

THE SENIOR DEPUTY PRESIDENT: And the joinery?

PN596

MR ERMER: And the joinery would be, as reflected in our without prejudice document, is an issue about off site arrangements. But we make the point that not off site construction, your Honour. We have made various submissions in our formal submissions, the written ones of 31 October, that off site construction effectively will mean - I know we have some difference of opinion here at the bar table - but off site construction will mean significant increase of cost for manufacturers. Off site constructing manufacturing, that was on another day her Honour Acton SDP. Off site construction is not something that ought to be considered by the Commission in this instance.

PN597

Your Honour, at this point - again I've tried to keep it brief - those are the six issues that I wish to raise. I would hope that I will be around for the next couple of days if there is an opportunity to present that there are other issues that are raised that we might raise to our feet, but we're not bound by the seriatim rules.

PN598

THE SENIOR DEPUTY PRESIDENT: No, we're consulting here.

PN599

MR ERMER: Indeed. But for the moment, your Honour, that would be my submission if it please the Commission.

PN600

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Ermer. You are first by a short half hour, Mr Shaw.

PN601

MR SHAW: Thank you, your Honour. I think it's probably appropriate my client is next in view of the two most recently submissions.

PN602

THE SENIOR DEPUTY PRESIDENT: You want to jump straight into it, don't you?

PN603

MR SHAW: That's right. And obviously you've seen the written submission. It sets out my client who is and should be indeed a plumbing industry or plumbing contracting industry award as opposed to an occupational award as such. The issue of scope we agree with the, if I can mention all the parties that have spoken today, is that obviously some degree of decision of scope or at least guidance of scope would be of great assistance before we certainly get down to drafting our model award. And in our submission it can easily be argued that the scope that we have proposed in that model award, and there at paragraph 56 of our written submission, is an appropriate scope for what we say is the plumbing contracting industry.

PN604

This industry has since always existed and I take Mr Calver's point that we don't have to be guided completely by the past, but it has been recognised as existing. It's an industry in relation to which the Master Plumbers and Mechanical Services Association of Australia was registered and is included in its rules. It, in my submission, is becoming far more identifiable as opposed to less identifiable as time goes on. There have been enormous steps forward in the national development of national codes, that is regulatory codes for the plumbing industry. There is a regulatory regime which is in the process of becoming a national one through COAG and various other bodies and of course there is quite a well developed and continuation of development of training, advanced training and vocational training for both the plumbing trades persons who do the basic work we see and the more advanced work that is seen to be required from this industry in the current context where we have problems with water supply, as in the sense of shortage of water, the need to if you imagine that you're in the use of water and of course to apply extremely higher safety standards to the way that water is handled.

PN605

So initially we say that there is such an industry. We say that it's well within the scope of the award modernisation process to provide an award to deal with that industry. I don't believe there is any need to address the issue of the so called reverse onus as you did yourself raised by Mr Calver, as you say just a moment ago we're in a consultative process at this stage and I don't think I have to really prove anything apart from to indicate to the Commission that what we're proposing is appropriate. So we put to you that one there is such an industry, and two it's easily identified. It's identified clearly by the members of my client association and, to be perhaps enough to get a rap over the knuckles by plumbing contractors throughout Australia, it's identifiable of course by plumbing employees and it fits quite comfortably within the concept of the award modernisation process and indeed the definitions contained in the present Act and the new bill where there will be employers, employers of real labour, people that really exist - our largest members actually employ direct labour - and there will be real employees.

PN606

So an award can easily be made between that applies to employers and employees covering this industry. From the ongoing grey hairs you're getting, your Honour, and I suppose that I've got from dealing with this industry, it's one issue that you could actually put away in a decided basket and go on and deal with some of the other problems that are clearly presenting themselves and have presented themselves throughout this process. Having said that there are a number of other issues that clearly need to be addressed and that is of course the types of contractors that my client sees as being covered by this award and they are set out at page 9 paragraph 36 of the written submission.

PN607

And in keeping with the desire to be brief that has been expressed by everybody and I know will be appreciated by you, your Honour, I won't go through them, except to say the first five of those categories in fact fit within the three that the AIG have indicated are appropriate, even though it's broken up in the five by our knowledge of our own industry. Mechanical services is an area that is currently covered by the existing Plumbing Trade (Southern States) Construction Award. We say it's appropriate that it be in the Plumbing Contracting Industry Award. I was about to say there's a potential three way split, so it's probably equally appropriate it be in the Electrical Contracting Industry Award as well and in the award as AIG suggested.

PN608

But the determinant there would be who employed the people. It's fairly - we can't have a perfect world. The Commission is not expecting it to be a perfect world where there'll be only one award to apply to each employer and visa versa and one employee to each award. So that clearly is something that need not raise a major issue. It needn't be one of those animals that's been spoken about either, either the monkey or the elephant. Similarly we have in that same category included plumbing fire protection and plumbing refrigeration and we believe they are all areas that do come into the concept of a modern plumbing industry and should be the subject to or should be covered by a modern plumbing award.

PN609

We don't see it necessarily as an occupational award and I know Mr Cooney's submissions will differ slightly in that regard. We do see it as a contracting industry award, one which is easy to identify and easy to create a scope clause for. I should add at this stage that whilst my clients have submitted a draft award, that really is at this stage nothing more than a consolidation of various awards and NAPSAs from around the country. It is not an attempt to create to the modern award.

PN610

THE SENIOR DEPUTY PRESIDENT: That identifies on the side where bits have come from

PN611

MR SHAW: Yes, exactly my client is not ..... some of the other parties at the bar table and as determined they will make that put an effort into bat once the scope is determined if that’s the order which things are going to happen. Believe me we are also seeking guidance from the Commission in that regard.

PN612

It is - given it's 3.30, I'm not sure how long we're going to go, but if we do go on tomorrow it may well be that other matters will come up and we will need to make a - perhaps we'll only get a couple of sentence type submission but we may do so. Thank you.

PN613

THE SENIOR DEPUTY PRESIDENT: Thank you for that Mr Shaw. I think you won this time, Mr Green is it?

PN614

MR GREEN: Thank you, your Honour. NECA and the CEPU have argued during the priority stage and indeed during this second stage of award modernisation for the creation of a modern Electrical and Communication Contracting Industry Award. We take our various submissions for the most recent ..... and I don't seek to revisit them in great detail here today. The primary contention of our submissions is that the Electrical and Communications Contracting Industry should be the subject of an independent modern award, that at least with respect to employees who are employed by Electrical and Communication Contractors applies in preference to other industry awards.

PN615

We have argued this not on the basis of turf protection but on the basis of a number of key points. Firstly there is the nature of the work undertaken by the industry. The Electrical and Communication Contracting Industry is one in which employers contract with various clients across various other industries which provide a broad range of what we would call electro-technology services. In other words the Electrical and Communication Contracting Industry intersects with virtually every other industry and I think we put it in one of our submissions that if you could imagine all those industries to be vertical lines, then the Electrical and Communication Contracting Industry is a horizontal line that intersects with all of those industries or all those lines. The second point is the reality of the mobility of industry participants.

PN616

Few, if any, Electrical and Communication Contractors operate solely as a contractor to a single industry or to participants within a single industry. Most regularly work on different projects in different industries concurrently. Even within particular industries it is common for Electrical and Communication Contractors to operate throughout different sub-sectors. For example, the Building and Construction Industry we were talking about today, it undoubtedly accounts for a significant proportion of the work performed by Electrical and Communication Contractors, but most contractors perform tasks across the various different sectors of construction, be it housing, commercial, engineering, civil. I guess this brings up the point of whether you are talking about an industry or an occupational award here.

PN617

I think somebody said, Mr Herbert, the term "industry" is very much in the eye of the beholder in terms of what it means. We say the Electrical and Communication Contracting Industry is an industry. It may be based on a broad occupational category, but in reality it's basis thrust is on the industry of the employer. You could contrast that, for instance, with clerical. I think the only occupational award that the Commission is determined to make to date is the Clerical Award. Most industries employ clerks, clerical classifications if you like. Very rarely is the clerical occupation contracted out, it's an in-house occupation. The Electrical Contracting Industry is a contracting industry, it contracts to all other industries. There is a huge distinction, if you like, between clerical in terms of occupational award and what we say is our industry.

PN618

Thirdly, there is the issue of historical recognition. Our industry has been recognized by the Commission as a separate industry at least for award purposes since 1960. Whilst that may not in and of itself justify the continuation of such recognition under the auspices of award modernisation, it is not a factor that could lightly be ignored. Similarly State Industrial Tribunals have also recognized the Electrical and Communication Contracting Industry as a separate industry. The fourth major point is that of training. Our industry requires specialized and highly skilled employees. The majority of employees are trades people and above, or apprentices.

PN619

The training package which is the Electro-technology training package was developed by the Industry Skills Council know as EEAUS, this is a separate skills council to that for the Building and Construction Industry, it's a separate training package again and it has developed a range of qualifications to deliberately respond to the classification structure provided for within the existing federal industry award. For these reasons NECA, and I'm sure you will also hear from the CEPU, strongly urge consideration of an industry specific award for Electrical and Communication Contracting. One specifically separate from the Building, Metal and Civil Construction and Other Industries. We believe our submissions, those today and those in our written submissions on this point are compelling and to our knowledge have not been challenged or rebutted by any other party during the award modernisation consultation.

PN620

As a consequence we are opposed to what we understand the submissions of the MBA to be. They would seek to incorporate some elements of the Electrical and Communication Contracting Industry to various Building and Construction Industry awards. Similarly, whilst we're yet to hear from them, I have read their written submissions, we are opposed to the HIA proposal which would see elements of the Electrical and Communication Contracting Industry incorporated into a Residential Building Industry Award. NECA and the CEPU have been working hard, and I might add cooperatively, to draft a modern Electrical and Communication Contracting Industry Award. Both organisations lodged different versions of a draft modern award with the Commission on 31 October. But since then the parties have been meeting regularly to attempt to resolve differences and bridge the gap between the respective draft awards. We have had considerable success and over the weekend we lodged a revised draft award with the Commission.

PN621

The majority of the contents of this revised draft modern award are agreed between the parties. The draft highlights the remaining areas of disagreement, as well as those areas which are the subject of ongoing discussions between the parties. If it pleases your Honour I would seek to sort of step you through that proposed award in the available time. It is on the Commission's website, I am conscious that it only went up this morning so I do have some hard copies here.

PN622

THE SENIOR DEPUTY PRESIDENT: Yes, I have one thank you.

PN623

MR GREEN: If people would like to see it. I'm sure not everybody has a particular interest in it. The draft proposed modern award uses the current National Electrical Electronic and Communications Contracting Industry Award 1998 as it's major reference point. However, regard has also been had to the various NAPSAs which currently cover the industry in Queensland, WA and the Northern Territory. I won't take you through every element. In the main I will stick to the areas of disagreement and perhaps areas that other people might find controversial. I would refer you just very briefly to clause 3.2, "other definitions". You will notice that there are a number of items there that are highlighted. Base rate of pay being one, full rate of pay. minimum weekly wage rate and standard rate. A number of those definitions or phrases are drawn from the NES. I think it's fair to say that the union and ourselves are having further discussions whether those phrases and attendant definitions are relevant for the purpose of the - - -

PN624

THE SENIOR DEPUTY PRESIDENT: Are they used?

PN625

MR GREEN: Beg your pardon?

PN626

THE SENIOR DEPUTY PRESIDENT: Are they used elsewhere throughout?

PN627

MR GREEN: They aren't. The reality is in the awards that currently govern our industry, the all important rate of pay is the all purpose rate of pay and I guess it's the in principle view of the parties that the all purpose rate of pay will be the rate of pay which is paid to employees when they take leave in accordance with the NES so I suspect that some of those definitions can be deleted without any impact. I would refer you to clause 4, application.

PN628

THE SENIOR DEPUTY PRESIDENT: Do the parties have some problem with the terminology standard rate in the allowances clause? I notice you've gone back to weekly, EW5 minimum weekly wage.

PN629

MR GREEN: My recollection is the standard rate is a term referred to in the NES.

PN630

THE SENIOR DEPUTY PRESIDENT: No, it's a term that I think made its way into exposure drafts as a result of converting allowances to a percentage of it and I am just wondering - - -

PN631

MR GREEN: I don't believe the standard rate is used in the draft award anywhere.

PN632

THE SENIOR DEPUTY PRESIDENT: But it could be instead of - - -

PN633

MR GREEN: It could be.

PN634

THE SENIOR DEPUTY PRESIDENT: - - - EW5 minimum weekly wage.

PN635

MR GREEN: Yes, that may well be and for the purposes, for instance, of calculating allowances, if they're to be expressed as a percentage of the standard rate, then it may well be that that would be necessary.

PN636

THE SENIOR DEPUTY PRESIDENT: Very well.

PN637

MR GREEN: Clause 4, application. This clause is the application clause, scope clause, as you will, of the current predominant federal Electrical Contracting Industry Award. We are not seeking to expand or diminish the scope of the current predominant national award. This application clause may require some redrafting to make it consistent with the approach adopted by the Commission to date with respect to the priority industries.

PN638

However, the parties have not done so at this stage as we wanted to clearly signal to all parties that our intention is not to expand, nor is it to diminish the existing scope of the current award and we thought the best way of trying to convince people in the short term of that was, well, that's what it is presently and that's what we're seeking referring - just picking up Mr Ermer's comments with respect to discussions that have taken place between AI Group, the CEPU and various others about an appropriate exemption in this award for the manufacturing et cetera award.

PN639

We don't have a problem with such a proposition. Presumably it will be replicated in the manufacturing et cetera award and I think that's the understanding of the parties. Clause 9, dispute resolution, the parties are still to finalise this clause. There's two issues. The first issue is at clause 9.2 and whether the Commission should be empowered to arbitrate disputes arising.

PN640

THE SENIOR DEPUTY PRESIDENT: Can we be under the union proposed - - -

PN641

MR GREEN: Well, I don't know. I've been so preoccupied with award modernisation over the last week, I just haven't had the time to spend to analyse the bill in any particular detail and I think that that's something that we will have to analyse. I accept that it's only a bill and the senate process, et cetera, et cetera, et cetera, but we will be guided at least in part by the wording of the bill and how that empowers the Commission in that regard.

PN642

THE SENIOR DEPUTY PRESIDENT: Yes.

PN643

MR GREEN: The second issue there is at clause 9.4 which talks - while the dispute resolution procedure has been conducted, work will continue normally and this is where we part company. The CEPUs position is that should be in accordance with the pre-dispute status quo. We don't believe those words are necessary. We don't believe that they're appropriate.

PN644

We just believe they should say work will continue normally and in our view that's at the direction of the employer. In our experience you end up having a secondary brawl about what the pre-dispute status quo was in situations like this before you get to determine the actual matter under dispute, but we will have further discussions with the union on that part.

PN645

Turning to part 3, types of employment and termination of employment, I would refer you to clause 10.3(b) which is the casual loading. Our position is the casual loading should be 20 per cent. The reality is within our industry under the predominant federal award and the majority of NAPSAs, 20 per cent is the casual loading. We are mindful that the Commission did put 25 per cent in the exposure drafts for the priority awards and no doubt that's why the union has latched on to 25 per cent there, but no doubt the Commission will take a consistent approach to casual loading.

PN646

The second clause I would refer you to with respect to casual employment is 10.3(e) which is the limitation on casual employment and we're opposed to this clause and this really goes to the issue that you discussed with Mr Calver which is the national code of practice for the building and construction industry and the implementation guidelines. The simple fact is that limitation of casual employment offends the guidelines and the code and as such, everything remaining equal were this award to be made, employers operating under this award would not be eligible to tender for commonwealth government funded work. I've heard the submissions of Mr Calver with respect to this issue and I would certainly adopt those submissions with respect to this issue only.

PN647

THE SENIOR DEPUTY PRESIDENT: That's putting him back in his place.

PN648

MR GREEN: Clause 12, school based apprentices, you will note that that clause is opposed by the CEPU. I will let the CEPU make their own submission on this particular clause. Our view is that such a clause is necessary. Such a clause is appropriate. Such a clause is envisaged by the award modernisation request. The reality is that apprentices are the very life blood of our industry and school based apprentices are a reality and we need a provision within an award, within a modern award which facilitates the employment of school based apprentices that clearly articulates what their term and conditions of employment should be.

PN649

Turning to clause 15.4, termination prior to a public holiday, we're opposed to this clause and this is a clause that says basically if you're terminated with 10 days of a public holiday, then you should be paid that public holiday or that group of public holidays. It is a provision that falls within the present federal award. It doesn't fall within all of the NAPSAs and I guess our argument is that this is a provision that pre-dates legislative entitlements with respect to notice of termination.

PN650

This clause goes back to the days where everybody got a week's notice regardless of how long they were employed. We've now got legislation which determines notice entitlements depending upon how long you've been employed, minimum of a week, serious misconduct aside and so it goes up and so we take the view that people who've been employed for a reasonable length of time, in excess of 12 months basically, don't need this clause because their notice will incorporate those public holidays.

PN651

Clause 16, redundancy, we don't have agreement here. We are discussing this issue and will continue to discuss this issue. All I can say at this stage is that our industry has every variant of a redundancy clause within Australia or known, known redundancy clause within awards in Australia in existence and how we - I will rephrase that.

PN652

I think the parties seek the opportunity to have further discussions to see whether we're able to put forward a proposition to the Commission as to how that matter should be resolved and I think that's probably the first thing I would say there. The second thing I would say there, I will just refer you to redundancy pay schemes which is clause 16.2.

PN653

THE SENIOR DEPUTY PRESIDENT: I am sorry, where is that?

PN654

MR GREEN: Clause 16.2, redundancy pay schemes and I do this just to draw it to your attention. As your Honour would be aware, redundancy pay schemes are part and parcel of the building and construction and related industries and what we're trying to clearly articulate there is that where employers do utilise a redundancy pay scheme that the benefits that an employee receives from that redundancy pay scheme can offset the employer's obligation either in whole or in part under the NES.

PN655

THE SENIOR DEPUTY PRESIDENT: So there's no obligation to participate in - - -

PN656

MR GREEN: There's no obligation to participate, no, but if you do, then the funds you contribute into the redundancy pay scheme offset in whole or in part the NES obligation. Part 4, minimum wages, clause 17, classifications of minimum wages. The classification structure is in fact contained at the back as appendix - sorry, schedule A. I won't take you to that. It is the current classification structure both under the federal award and a number of the NAPSAs cut and pasted into this award basically, it hasn't been changed, but the issue of what the appropriate minimum rates are and how they might be structured has been the subject of considerable discussions and, in fact, are the subject of ongoing discussions between the parties. The minimum rates, the allowances structures around the country under the various existing awards vary dramatically.

PN657

THE SENIOR DEPUTY PRESIDENT: The base trades rate is grade 5, is that correct?

PN658

MR GREEN: Yes, grade 5 is the trade rate.

PN659

THE SENIOR DEPUTY PRESIDENT: And that's $130 - - -

PN660

MR GREEN: I beg your pardon?

PN661

THE SENIOR DEPUTY PRESIDENT: That is here some $130 in excess of the C10 in the metal industry?

PN662

MR GREEN: May well be. I haven't done the comparison. If I could just explain how these rates have been determined and they're not agreed, they're there for discussion purposes, without prejudice, all that sort of stuff, the rates vary considerably around the states. The make up of the rates in terms of the all purpose rate varies considerably as well. You've got industry allowances, you've got special allowances, you've got construction allowances, you've got every allowance conceivable making up the all purpose rate of pay.

PN663

The approach we've taken is we identified the highest existing all purpose rate of pay in the country under the Contracting Industry Award presently. Now, that highest rate was in New South Wales under the New South Wales NAPSA and I forget the name of it and so we agreed at least in principle on that approach. We then agreed that it was appropriate to rationalise all the various allowances, all these all purpose allowances that, you know, get added to the minimum rate to make up the all purpose rate and we agreed in principle that in the main there was only a necessity for two all purpose allowances.

PN664

There are more here, but they're things like leading hand, two major all purpose allowances, that being the tool allowance and the licence allowance, the licence allowance being very dear to electricians, so we started with the New South Wales all purpose rate, created a licence allowance, created a tool allowance, took those off the New South Wales all purpose rate, that then became the minimum weekly wage rate and that's how that rate was created.

PN665

Going back to your point about it being higher than the C10 classification in the metals and the manufacturing award, we certainly will do the comparison, but I guess it's making sure you're comparing apples with apples and hopefully I've explained perhaps part of the difference here. Apprentice minimum rates, a work in progress. Again the rates vary considerably around the states and we will continue to discuss that with the CEPU.

PN666

17.5, calculation of weekly wage rates under an RDO system, I won't take you to that, your Honour. It's a fairly minor issue that we will resolve with the union. If I could take you to the bottom of page - sorry, just staying with clause 18, all purpose allowances, we very much rationalised a number of those allowances, the main ones there being the tool allowance and the electricians' licence allowance.

PN667

There are a number of others, leading hand, nominee allowance and something called an electrical distribution line maintenance and tree clearing allowance. I won't go to those. They are only paid in a small minority of circumstances so we very much rationalise the number of all purpose allowances. Similarly with special rates at 18.2, a little bit like the building industry when you analyse all the awards, particularly the NAPSAs, we could have had another five, six or seven pages of special rates within this award.

PN668

In essence, given the approach that we've taken with the minimum weekly rate, the parties have agreed that there's no necessity to have all those special rates, wet underfoot, dirt money, et cetera, et cetera. There are some there, meal allowance, multi-storey allowance, first day compensation for loss of tools, but it's certainly at this stage not envisaged that they be added to beyond transitional arrangements and I will come to that in a moment. Clause 18.3, accident pay, this is a clause proposed by the CEPU and it's one that we're opposed to. It presently only - such a clause applies in only one state.

PN669

THE SENIOR DEPUTY PRESIDENT: Victoria?

PN670

MR GREEN: Under the electrical contracting industry. Sorry?

PN671

THE SENIOR DEPUTY PRESIDENT: Victoria?

PN672

MR GREEN: Victoria, yes. It doesn't exist in - even in the federal award it only applies in Victoria. It doesn't apply anywhere else and it doesn't apply under any of the NAPSAs. The CEPU proposed that and we're very much opposed to it. Clause 21 just briefly, annualised wage, this clause is no longer proposed. We've read the Commission's views on annualised wage clauses within awards.

PN673

There's no existing history and I guess it's fair to say that we doubt the utility of such a provision within our industry if people are minded, then perhaps it's a matter for enterprise agreements. Clause 22, extra rates not cumulative, again that's a clause that the union opposes. We see nothing wrong with it. In our view it states the bleeding obvious. It's a fairly common clause across many awards.

PN674

Clause 23, payment of wages, the only significant issue there that separates the parties is whether wages can be paid fortnightly. That is opposed by the union. We support it. It's available on this draft by agreement, but I will let the union make their own case on that. If I could refer you to clause 29.8 which I think is the next. This is not so much an issue of disagreement. It's really an issue of the parties just having some further discussions to finalise the matter. This is taking annual leave during shut down. I think, and Mr Benfell will correct me if I'm wrong, we've reached in principle agreement that shut downs should not relate specifically just to Christmas, which is part of what the clause says. There are other times in the year or there might be circumstances where an employer may need to shut all or part of his or her business. So that's one of the issues that we're still working on.

PN675

You will see there are two dot points there clarifying that employees are still entitled to be paid for public holidays during the shut down period, regardless of whether they've got sufficient leave to take you through that shut down period and the other issue there is that unpaid leave in the circumstances, we're talking about a shut down period where an employee because of their length of service or other circumstances might not have sufficient leave to cover the shut down period that that not should break the service of the employee and it's not an accepted period as per the NES, if that makes sense.

PN676

Clause 32, public holiday, the only issue here is that the CEPU proposal of inclusion of what they call an Industry Day which exists in New South Wales, I think Industry Day is aka Picnic Day and we're opposed to that. It's only a creature of the New South Wales NAPSA. Then finally, and I'm not going to take you to detail on this at all, clause 34 is something called transitional arrangements. There are a significant number of transitional arrangements which would need to be discussed and agreed and listed there are just some examples that fall out of - or that the CEPU have raised with respect to Queensland.

PN677

I guess we've taken the traditional approach, well, once we know where the target is in terms of the modern award, then the transitional arrangements can then be identified and worked out. There'll be transitional arrangements necessary with respect to employees but also with respect to employers as well. There's only one thing that I want to say beyond that and that's that I agree with the number of parties that it would be very helpful and I'm acutely aware of the difficulty that your Honour and the Full Bench faces, but the sooner the industry is given some guidance as to the framework, I think was the term that Mr Calver used and I think it's a good term.

PN678

MR CALVER: You're agreeing with me.

PN679

MR GREEN: I am. Then the better, you know, the easier it is for the parties. At the moment, you know, we've got awards from Mr Maxwell, we've got awards from the MBA and so on and so forth that are up there. Now, from an electrical contracting perspective they don't even pretend to accommodate to accommodate electrical workers beyond one or two lines within the application clause and if, and we certainly hope the Commission doesn't, but if the Commission was minded to throw us in with building, then we'd certainly be required to devote considerable resources to getting involved, if you like, boots and all in terms of ensuring that electrical workers and electrical employers are properly catered for within those awards.

PN680

But as I say, hopefully the submissions we've made about the need for an electrical and communications contracting industry you'll also find compelling as well as the Full Bench. If the Commission pleases.

PN681

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Green.
Mr Austin-Woods, you wanted to complete the plumbing industry?

PN682

MR AUSTIN-WOODS: Thank you, your Honour. Your Honour, the Master Plumbers and Mechanical Contractors Association of New South Wales which is registered under the Workplace Relations Act makes these submissions on behalf of the National Plumbing Association's alliance which comprises of associations that represent the interests of employers in the plumbing industry in New South Wales, Western Australia, Tasmania, South Australia, the ACT and the Northern Territory. We note that the Master Plumbers and Mechanical Services Association of Australia whose representation is limited in this matter to the states of Queensland and Victoria have claimed in their submission to the Commission at clause 6 that they have conferred with our members such that their submission is generally consistent with our views.

PN683

Your Honour, this is less than truthful and we only raise this because it is important that the Commission is made aware of this fact. The MPMSAA is not representative of our views, particularly in relation to mechanical contractors being included in any proposed future Plumbing Award. However, your Honour, I will address this point a little later. You will be pleased to note, your Honour, that one point that we do agree upon is the importance of creating a single modern stand alone Plumbing Award.

PN684

We urge the Commission not to group plumbing into an onsite, off site Building Award as suggested by the MBA and other parties. 90 per cent of our membership are not in any way involved in the construction industry but are rather maintenance plumbers. I'd bring your Honour's attention again to paragraph 4 of the Minister's Request which states:

PN685

When modernising awards the Commission is to create modern awards primarily along industry lines but may also create modern awards along occupational lines as it considers appropriate.

PN686

It is our belief that plumbing is an industry in itself, however if the Commission considers it isn't we submit that it should pay particular attention to the Minister's occupational directive in this instance. Furthermore, a modern federal Plumbing Award would be in line with COAG's policies concerning the harmonisation of licences, mobility and uniform trade qualifications. Your Honour, it is critical to recognise that plumbing is not a sub occupation of building as some parties would have the Commission believe. Plumbing is a specialist trade responsible for the ongoing protection of the public health of the community and we cannot emphasise this point strongly enough.

PN687

Plumbers working in Australia are required to be registered or licensed within the state in which they work. The Association of Plumbing with the preservation of good health is well documented. Epidemics such as typhus, cholera and the bubonic plague have been traced back to all plumbing practices. Today the issue of clean water supply and effective sewers remains of great importance. The UN has declared 2005 to 2015 the international decade of action Water For Life and a second agenda to focus on that subject. In September 2003 the World Health Organisation released a press release stating - - -

PN688

THE SENIOR DEPUTY PRESIDENT: Mr Austin-Woods, you don't need to go to detail of your submission, I've read that. It's really developing any points of detail in respect to where we're headed and respond to - - -

PN689

MR AUSTIN-WOODS: We just needed to emphasise the - - -

PN690

THE SENIOR DEPUTY PRESIDENT: Yes, I'm grateful for the written submission which I have read. I have been wondering what the Romans have done for the plumbing industry.

PN691

MR AUSTIN-WOODS: Well, it's an issue of importance.

PN692

THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that.

PN693

MR AUSTIN-WOODS: Moving on to mechanical contractors, we further argue they shouldn't be covered by a future plumbing award as opposed to the view expressed by the MPMSAA. The six state and territory representations that this submission represents have members who are mechanical contractors and operating as airconditioning contractors and who also carry out pipe work through their licences as plumbers. Now, those who are employed by airconditioning contractors are either classified as airconditioning tradesperson or various classes of airconditioning employee groups and are versed in sheet metal work.

PN694

We therefore argue that airconditioning workers have neither the qualifications nor the operational experience of those in the plumbing industry and should therefore remain in and part of the National Metal and Engineering On Site Construction Award. Likewise we believe that sprinkler fitters should not be included in the new Plumbing Award and it is our understanding that the National Fire Industry Association and the Plumbing Trades Employees Union agrees with this view.

PN695

Sprinkler fitters are currently employed under the Sprinkler Pipefitters Award. This award has no relationship to the Plumbing Award and in the event that plumbing work is to be carried out by a sprinkler fitter in the course of their employment such work is covered by the relevant Plumbing Award. The Sprinkler Pipefitters Award has been a stand alone award and it is our view that it is more appropriate that it should also be included with the National Metal and Engineering On Site Construction Award.

PN696

THE SENIOR DEPUTY PRESIDENT: Sorry, considered in the context of that award or made part of it?

PN697

MR AUSTIN-WOODS: Made part of it.

PN698

THE SENIOR DEPUTY PRESIDENT: Which isn't a view shared with one of the other organisations you earlier mentioned, do you suggest a continuous stand alone - - -

PN699

MR AUSTIN-WOODS: The view that we understand by the National Fire Industry Association and the Plumbing Trades Employees Union is that sprinkler fitters shouldn't be part of a future Plumbing Award.

PN700

THE SENIOR DEPUTY PRESIDENT: But a separate award altogether?

PN701

MR AUSTIN-WOODS: That's right.

PN702

THE SENIOR DEPUTY PRESIDENT: Yes, thanks.

PN703

MR AUSTIN-WOODS: Just very briefly, your Honour, the final issue that we'd like to raise with you is that we see the award modernisation process as providing the plumbing industry with an opportunity to have the federal Plumbing Awards reflect what actually occurs in the industry by overcoming an anomaly whereby the operations of plumbing contractors involved in maintenance work are not considered. As previously mentioned, a large number of plumbing contractors operate outside of the on site area to perform maintenance plumbing contractors. However, they are bound by the current Plumbing Awards which do not recognise or make adequate provision for the maintenance industry in which they operate.

PN704

Plumbing contractors who are involved in maintenance work have no satisfactory award under which they can employ their plumbers and are bound by Construction Awards which are ill served in our opinion. We therefore respectfully submit that a provision should be included in any modernised Plumbing Award for maintenance plumbers which excludes the provisions of compulsory rostered days off and the payment of an industry allowance which is designed to compensate the disabilities associated with the construction industry.

PN705

In conclusion, your Honour, this submission on behalf of the MPAA, representing six state and territory plumbing associations makes four central points. Firstly, that the Commission should create a stand alone modern federal Plumbing Award, secondly, that airconditioning contractors who are currently respondent to a Metal Industry Award should remain part of that award and not attached to a future Plumbing Award. Thirdly, that sprinkler fitters should also not be included in a modern Plumbing Award but in our view would be more appropriately joined to a Metal Industry Award. And fourthly, that a modern Plumbing Award should have a provision for maintenance plumbers that creates flexibility in relation to mandatory rostered days off and excludes an industry allowance which is essentially for the benefit of construction workers. If it pleases the Commission.

PN706

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Austin-Woods. Yes, Mr Smith, is it?

PN707

MR SMITH: Your Honour, I'm not sure what time you had in mind for - - -

PN708

THE SENIOR DEPUTY PRESIDENT: 4.30 so it depends how long you go.

PN709

MR SMITH: I will probably speak for longer than 10 minutes, your Honour.

PN710

THE SENIOR DEPUTY PRESIDENT: Yes. It's an appropriate time to call stumps and perhaps resume in the morning. Very well. We will resume at 10 o'clock tomorrow.

<ADJOURNED UNTIL TUESDAY, 2 DECEMBER 2008 [4.14PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 CONSTRUCTION INDUSTRY CONSULTATION 1 PN87
EXHIBIT #CFMEU2 CONSTRUCTION CONSULTATION 2 PN260
EXHIBIT #MBA BUILDING CONSULTATIONS 1 LETTER FROM MBA, DATED 25/11/2008 PN405