AM2014/190, Transcript of Proceedings [2014] FWCTrans 680 (10 November 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050880-1

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BULL

AM2014/190

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
(AM2014/190)
Black Coal Mining Industry Award 2010

(ODN AM2008/2)
[MA000001CRV Print PR985111]]




Sydney

10.13AM, FRIDAY, 31 OCTOBER 2014

Continued from 30/10/2014

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

PN1896

THE SENIOR DEPUTY PRESIDENT: Yes, are there any changes in the appearances?

PN1897

MR FERGUSON: Your honour, Mr Bukarica is not with us today so I appear on behalf of the (indistinct).

PN1898

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ferguson.

PN1899

MR FERGUSON: Thank you, your honour. There were two issues that we had to respond to in terms of questions from the bench. The first one was my organisation’s view about the operation of the model accident paid clause if I can call it that. I will deal with that firstly. It’s fair to say that it didn’t seem, when I made my inquires, that we had a standard view or official view across the organisation in relation to how precisely it operates but we gave a fair amount of thought to how it operates in the context of new employees and also new employers and I will probably deal with the situation of new employees first because I think that’s more straightforward.

PN1900

Certainly from our perspective we are of the view that it does operate to extend an entitlement to a new employee and that seems to be the clear intent of the words but where it becomes more complicated or unclear as to what that entitlement is is situations where the employer has started operation at different points in time. I will just develop that point. The first thing is it only operates to preserve an entitlement in relation to, for example, a scheme operating under a NAPSA, a notional agreement preserving a state award if that would have applied to the employee immediately prior to 1 January 2010. This all becomes very complex because to understand this clause you need to go back to what I might call the transitional arrangements contained in the work choices or the Workplace Relations Act following the work choices reforms in order to understand when a NAPSA actually came into being.

PN1901

Specifically what you have to go to is schedule 8 item 31, it talks about a NAPSA only coming into being where an employee was covered by a state award immediately prior in effect to the commencement of the work choices reforms.

PN1902

THE SENIOR DEPUTY PRESIDENT: I think we were just asking you what was the AIG view. I’m not sure you have to go into - - -

PN1903

MR FERGUSON: I think there are different views of it. I think the proposition is this and I won’t delve into it much further, your honour. It seems that if a new employer commenced business after the reform date no NAPSA came into being so there’s no preserved entitlement in relation to those employees. It becomes even more difficult though when you are trying to work out how that clause works in relation to other employees because it only preserves entitlements in relation to federal awards as they would have applied to the employee at 27 March 2006. There presumably would have been no entitlement if the employer commenced operation after that date because federal awards couldn’t have applied to that employer because the rules around respondency changed. In terms of our view it seems to us that employees wouldn’t have entitlements if they worked for an employer that commenced operation after that date.

PN1904

In general terms it is very complex. That, I think, is as far as I can take it other than make that general observation that it’s difficult to see how an employer could easily work out all of these things especially given the answer to some of these questions depends on things that aren’t clear on the face of the documents. To work out whether there was an entitlement you have to know, for example, whether back in 2006 the employer was a member of the relevant employer association. You’ve got to hope someone’s got the records or someone remembers so this exercise really has amplified our concerns about the complexity of these arrangements and the extent to which it’s inconsistent with or the continuation of them would be inconsistent with the objectives of a simple and easy to understand modern award system. I won’t take that further though.

PN1905

The other thing we were asked to do was look for some examples that demonstrate the various ways we say in general terms that preserved award schemes give rise to a contravention of section 154. We have prepared a document that sets those out which I might hand up to the bench and seek to have marked if that assists.

PN1906

THE SENIOR DEPUTY PRESIDENT: What does this document do?

PN1907

MR FERGUSON: So what this document does is it sets out examples of pre-reform instruments if I can just call them that, that contain clauses which we say give rise to section 154 issues or which would be inconsistent with section 154. What we’ve done is we’ve attached to AIG3 an annexure of, a list of instruments involved in the metals industry and in that we identified a small number of awards that contained accident pay provisions. We’ve tried to draw from that the clauses we say contravene the legislation. I might take you through it briefly. There’s essentially six examples and they do reflect the position we’ve put in our submissions. The first example sets out a pre-reform, a federal award that contains an accident pay clause and the coverage of the instrument applies in each state but what you see when you look at the accident pay clause is that the actual entitlement itself differs by reference to the relevant state legislation. If you look at clause 22.1.5 it talks about the fact that it applies to, you know, all of the different state, the legislation applicable in each state or territory relevant to the employment. We say that in itself gives rise to a contravention of section 154.

PN1908

THE SENIOR DEPUTY PRESIDENT: (indistinct) making as it were (indistinct) explicit what is implicit in virtually every accident paid provision isn’t it? The accident pay, the amount of accident pay is calculated having regard to whatever is the entitlement to workers compensation payments and they will come under usually state or territory legislation.

PN1909

MR FERGUSON: Look, that’s right. In this specific example I suppose has (indistinct) the position we developed in relation to the Black Coal Industry Award but we say if you look to the terms clearly the state or the question of whether or not an employee is in a particular state, within the boundary of the state is intimately connected to the determination of what the actual entitlement is and entitlement is going to vary from state to state and you can’t work it out within reference to what the boundaries are. That example really is just seeking to demonstrate the fact that sure, even when there’s a coverage clause that applies throughout the country and there’s a general accident pay provision in our view there are still inappropriate state differentials that arise. The rest of the examples are probably more clear cut in the way we would say that they give rise to a contravention of section 154.

PN1910

Example two, for example, contains extracts from a provision that are included in a federal award that applied in each state or territory but the accident pay clause only applied in Victoria. It says that quite explicitly. If you look at the last line of that clause which is 10.1.12 it says, “This clause shall have application in the state of Victoria only” and we would say it falls foul of section 154.

PN1911

THE SENIOR DEPUTY PRESIDENT: That’s a clearer - - -

PN1912

MR FERGUSON: It’s a clearer one, yes.

PN1913

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1914

MR FERGUSON: Example three is clearer again. It gives you an idea of the fat that there are some coverage clauses of awards that only apply in particular states and this is a particular award, the Model Engineering and Associated Industries Accident Pay Victoria Award which by force of its coverage clause only applied in the state of Victoria. Again we would say it clearly demonstrates that given the model clause (indistinct) these sorts of provisions it’s - - -

PN1915

THE SENIOR DEPUTY PRESIDENT: But they’re different from, I mean, I thought the general argument was this argument about if you’ve got an entitlement that can only be calculated having regard at some stage to a reference to state legislation which provides the different levels perhaps throughout the country of workers compensation payments and that’s enough to mean that it would infringe section 154. I think that’s part of the argument.

PN1916

MR FERGUSON: That’s part of the argument but we say that probably put at our highest is the argument.

PN1917

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1918

MR FERGUSON: Then we say beyond that you need to go back, if the commission is going to perpetuate - - -

PN1919

THE SENIOR DEPUTY PRESIDENT: I understand. You’ve given us some examples of awards.

PN1920

MR FERGUSON: Yes, the different ways - - -

PN1921

THE SENIOR DEPUTY PRESIDENT: Are there any other different types of examples?

PN1922

MR FERGUSON: Look, there’s (indistinct) that’s probably not self-explanatory (indistinct) it talks about the situation again where it arose only by reference to Victorian legislation. I won’t take you through that.

PN1923

THE SENIOR DEPUTY PRESIDENT: Good. Anything else?

PN1924

MR FERGUSON: Example five deals with a situation which is dealt with in our submissions where the award actually expressly provides that there are different entitlements in different states and that’s made clear at clause 5.6.5. Specific terms, it provides for differentials.

PN1925

THE SENIOR DEPUTY PRESIDENT: Yes, that’s the more clear differential again, isn’t it?

PN1926

MR FERGUSON: It is.

PN1927

THE SENIOR DEPUTY PRESIDENT: In one state you get 39 weeks accident make up pay and in another you get 26.

PN1928

MR FERGUSON: That’s right, in very clear terms. Now, I suppose the potential to be put out is the more expansive view we’re putting is that not only do you need to look at the terms of these instruments but if they’re operating by reference to legislation you need to look at the terms of that legislation as well. It’s quite an arduous task, of course, but that’s what we say would need to happen if we were going to be confident that all of these regimes could be maintained. Another issue that came to mind this morning, I haven’t fully thought through is there seems to have been some reforms in relation to this workers compensation legislation in very recent times and whether that impacts upon these schemes that call up or only provide an entitlement where it arises under the state legislation. We haven’t gone through that process but it does raise a question about whether they actually do anything still if the legislation has been varied or replaced.

PN1929

There’s two other examples. One is a NAPSA which applied in Queensland and it’s not a controversial point. NAPSA is applied generally by reference to state reference so we would say that clearly falls foul of section 154. The other point I would make is it’s not included here but there were some federal awards that their coverage clause, provided they applied to some states but not all for example and it’s not just included here but from memory the Transport Workers Award 2000 applied in a series of states but specifically excluded New South Wales. It is quite a complex process and there’s a whole range of ways that these clauses can fall foul of section 154 in our view. That’s all I was asked to do so I won’t take you further unless there are additional questions. Perhaps we should have the document marked though.

PN1930

THE SENIOR DEPUTY PRESIDENT: Yes, I am going to mark it as exhibit AIG6.

EXHIBIT #AIG6 DOCUMENT PREPARED

PN1931

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ferguson.

PN1932

MR WARD: Sorry, can I just make a point from an abundance of caution from something your honour asked, I think on the end of the first day your honour asked me whether or not those I act for advance the 154 argument as far as AIG have advanced it. That is that it’s an argument about the interaction with state laws. I said to your honour on that day we don’t take the 154 argument to that place. Our point about 154 is it’s determined by looking at the coverage of the instrument or the coverage of the clause in the instrument. With respect to Mr Ferguson he’s taken that argument further than we have and I just want, for point of clarification, to ensure the bench are comfortable with that distinction in our positions. If the commission pleases.

PN1933

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, as I understand it that concludes the case on all sides in relation to the transitional provisions common issues that are before the full bench. I take it from the parties that that, at least, the phase of the work of the full bench is now complete and as you are aware we have scheduled a further hearing with a video conference link at 11 o’clock today for the purpose of dealing with a range of award by award matters relating to transitional provisions. Yes, thank you for all those submissions and the material that has been presented. The full bench is in a position to announce our decision in this matter and we will give that decision now. Copies of the decision will be available shortly after we adjourn.

PN1934

The matters before the full bench concern transitional provisions relating to accident pay, district allowances and redundancy which were inserted into most modern awards by the award modernisation full bench in the award modernisation decision 2008. The transitional provisions were expressed to operate for a period until 31 December 2014, a sunset provision, during which time the parties would have the opportunity to give consideration to the future award regulation of those matters. As part of the four yearly review of awards, background paper was prepared and distributed to parties and a series of conferences were convened by the president of the commission regarding transitional provisions common issues.

PN1935

Several parties made applications in relation to the transitional provisions in awards. Applications were made by the ACTU to delete the sunset provision in the model transitional provisions which were inserted into most modern awards relating to accident pay and district allowances. The CFMEU mining and energy division applied to delete the sunset provision in the non-model accident pay provision which was inserted into the Black Coal Award. The AIG applied to delete the transitional provisions relating to accident pay, district allowances applying in Western Australia and Northern Territory and redundancy from all applicable awards.

PN1936

A timetable was established for the filing of submissions and evidence in relation to the transitional provisions common issues. Written outlines of submissions together with evidence and other material were filed by interested parties mainly in September this year and in the last three days the full bench has heard submissions from the parties in relation to these matters. Given the operative periods for the transitional provisions in modern awards we consider that it is appropriate for the full bench to announce our decision, at least in relation to some of the mattes before us as early as possible. We have decided not to grant the ACTU application to delete the sunset provisions in the transitional accident pay and district allowance provisions in modern awards. We do not consider that the case has been made out for the continuation of those transitional provisions having regard to the basis on which they were inserted by the award modernisation full bench in 2008 or to the submissions and material presented in the proceedings before us.

PN1937

In particular, we note that no party has sought the inclusion in modern awards of a national standard on accident pay to apply to all award covered employees as was anticipated by the award modernisation decision of 2008. We also note that no substantive case has been advanced such that the allowances applying in Western Australia and the Northern Territory “should be a permanent feature of the awards and if so the basis for their fixation and adjustment”. That’s a quote from the award modernisation decision of 2008. We also refer to the requirement that the commission have regard in considering the ACTU application to the modern awards objection objective in section 134 and the requirements of sections 139 and 154 of the Fair Work Act.

PN1938

In relation to the CFMEU application regarding the Black Coal Award we have decided to delete clause 18.8 of that award with effect from 31 December of this year. In this regard we consider that the accident pay provision in the award provides a clear national standard for the particular industry as described in the award modernisation decision of 2008. In relation to the AIG application to delete transitional arrangements relating to redundancy in modern awards we have decided to vary the relevant awards with effect from 1 January 2015. In this regard we note that the transitional redundancy provisions will by their term cease to operate on 31 December of this year and that no party has opposed the removal of these provisions from awards.

PN1939

The full bench will publish the reasons for this decision and our decision on the other applications relating to the transitional provisions common issues which were dealt with in the proceedings in due course. As I indicated a copy of the decision will be available shortly to the parties and we would intend to resume sitting at 11 o’clock this morning. We will adjourn until that time.

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [11.20AM]

PN1940

THE SENIOR DEPUTY PRESIDENT: Yes, good morning everybody. We have a whole range of different video links so I think we should take the appearances in Sydney first in relation to these matters.

PN1941

MR CLARKE: It’s Trevor Clarke from the ACTU appearing with Ms Dolan.

PN1942

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1943

MR MAXWELL: If the commission pleases, Maxwell initial S, the CFMEU construction division.

PN1944

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1945

MR MORETTA: If the commission pleases, Moretta initial M for the SDA.

PN1946

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1947

MR BLAXLAND: If the commission pleases, Blaxland initial J for the Australian Workers Union.

PN1948

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1949

MR WARD: Your honour, I continue my appearance in this matter for the Australian Chamber of Commerce and Industry, Australian Business Industrial, New South Wales Business Chamber Limited, Restaurant and Catering Australia, Accommodation Association of Australia, Motor Inn Motel and Accommodation Association, Master Builders Australia, Master Plumbers and Mechanical Services Association of Australia, Printing Industries Association of Australia, Australian Federation of Employees and Industries and the Victorian Automotive Chamber of Commerce, Ward initial M.

PN1950

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1951

MR FERGUSON: If the commission pleases, my name is Ferguson initial B for the Australian Industry Group. With me at the table is Ms Barr, initial R.

PN1952

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1953

MS ADLER: Adler, initial M for the Housing Industry Association.

PN1954

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1955

MS ?: (indistinct) initial G for New South Wales Farmers Association and National Farmers Federation.

PN1956

THE SENIOR DEPUTY PRESIDENT: Thank you. If we could go to Melbourne and have the various appearances. Can I ask you if you would stand when you’re making your appearance? It just makes it easier for us to see who’s speaking.

PN1957

MR MURPHY: Jeremy Murphy for the UFU.

PN1958

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1959

MS REID: If it please the commission, Reid initial R for the CFMEU Forestry division.

PN1960

THE SENIOR DEPUTY PRESIDENT: Thank you. The microphones for the video conference facilities are in the ceiling so you don’t have to address any of the microphones there.

PN1961

MS WILES: If the commission pleases, Wiles for the Textile, Clothing and (indistinct) Union of Australia.

PN1962

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1963

MR MCCARTHY: If the commission pleases, McCarthy initial A for the ANMF.

PN1964

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1965

MS WEEBER: Weeber, initial L for the Australian Manufacturing Workers Union vehicle division.

PN1966

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1967

MR NGUYEN: Nguyen, N-g-u-y-e-n initial M appearing for the Australian Manufacturers Workers Union.

PN1968

THE SENIOR DEPUTY PRESIDENT: Thank you. If we could go to Adelaide.

PN1969

MR CAGNEY: Cagney, C-a-g-n-e-y initial B for the SDA.

PN1970

THE SENIOR DEPUTY PRESIDENT: Thank you. Now to Perth.

PN1971

MR MILLMAN: May it please the commission, Millman initial S (indistinct) continuing to appear for the SDA and with me is Mr D. Rafferty.

PN1972

THE SENIOR DEPUTY PRESIDENT: Thank you. As the parties are aware the matters have been listed mainly for the purposes of programing this morning so we are aware that a number of submissions have been filed but the primary purpose of the proceedings today is the programing of the matters. Mr Clarke, do you want to start?

PN1973

MR CLARKE: Thank you your honour and we also extend our appreciation to the bench for announcing its decision so promptly in relation to the matter that has been before you for the past few days. If I cut to the chase and I will tell you what we want and I will give you the reasons why. What we would ideally like to get out of the session this morning is a final date for the final applications in relation to accident pay and district allowances, a date for the hearing of whether or not there will be any interim arrangements in relation to people who are presently entitled to district allowances and accident pay or would so be entitled but for the decision announced moments ago and the third matter we would like to extract from today’s hearing is some programming of those substantive applications in relation to district allowances and accident pay. That’s the ask, if you like, and I can give some of the background around this.

PN1974

Some submissions were filed by us in the last week which outline the manners in which we see these matters could be programed. They also outline some options which may be available to preserve the entitlements of those people that we thought may miss out, we now know will miss out in the absence of further action. I understand what the proceedings today have been listed for, your honours and commissioner, it’s not my proposal to make any application for any interim relief today. I’m not putting pressure on anybody to respond to these arguments today although some submissions handed across the table to me partially have but as mattes progress today we can figure out whether we bother degenerating into the details of that or not.

PN1975

I’m happy to answer any questions about the course that’s proposed in those written submissions. I think the bigger picture to bear in mind in relation to these matters is that we’re not in a court where principles of raise judiciary or (indistinct) estoppel or abuse of process whatever tend to arise very often. We’re in a situation where we have an administrative process whereby legislation is compelling the commission to conduct a review of awards having regard as to whether or not they meet the modern awards objective. It’s a big task and different parties may have differing perspectives about what’s best for their particular constituents in relation to the award and it’s not uncommon that different positions will arise during the course of the review about how particular interests might be affected in the award or in the award system or indeed in any given award.

PN1976

Without wanting to be flippant about it, we don’t actually care whether we call these common issue proceedings or not but we do think there is a great deal of sense in administrative convenience in the applications concerning district allowances to be heard concurrently and in the applications concerning accident pay to be heard concurrently. You will note in our written material we suggest that there may, in fact, be a subgrouping if you like of the accident pay type applications that any programing may have regard to being that some are in effect asserting that there is a national standard already and we would just like to keep it and here it is and there are others that are saying look, there’s not quite a national standard here but we think there should be one and this is what it should look like. Programing may, should the bench recognise that distinction, have regard to it in some way as matters progress.

PN1977

Ultimately, as I say, the big picture here and this decision arises out of the decisions that were made in award modernisation and the one of 19 December 2008 which without having being here I psychically imagine it’s been done to death in these proceedings which said in relation to district allowances that there can be a full examination of all the matters relevant to the allowances sometime after 1 January 2010 either on application or as part of the review contemplated by the fair work bill. Not the transitional act, the fair work bill and the only review contemplated by the fair work bill is this one. Similarly, in relation to accident pay the intention was to preserve accident pay arrangements until 31 December 2014. We anticipate that in the period prior to that an opportunity will arise to consider the formulation of a national standard. The task will be made considerably easier if uniformity is developed in relation to workers compensation schemes.

PN1978

Again, foreshadowing that sometime before the cut-off date we would get around to having another look at this. Now, there are one set of directions issues in relation to these proceedings in July. It had liberty to apply in it. Applications were alluded to earlier in review if you like that there would be applications, substantive applications in relation to accident pay and district allowances in the course of the review. They have been filed, many of them or all of them that are filed a month ago or more and as we are coming up towards that date there is an enormous desire to have those applications determined on an expeditious timeframe and exactly what twists and turns that could take would be addressed by the affiliates that the unions that are here today and around the country who will be able to give you a flavour of this is the type of application we want to make, this is the sort of material that we think we are going to put on and this is about how much time we will need.

PN1979

As I say before getting to that and perhaps if there’s consensus around the table that the whole thing can be done by the end of December, that’s fine. On the anticipation that that’s not the position that’s why we’re seeking a hearing soon in relation to these interim arrangements. As I say I have proposed a couple of courses that might be available in relation to interim arrangements. The interim arrangements that are proposed are narrower, are narrower than the substantive applications that the respective unions have made in that what they’re seeking to do in effect is preserve existing entitlements for those who have them or for those who would have them rather than say, for example, the (indistinct) union says this is what we should have as accident pay for everyone, the interim order is not saying give this as standard for everyone until you or the interim arrangement is not proposed to say give this arrangement for everyone until substantive applications are determined, it’s to grandfather people and say until we get to finally determining it let’s keep the existing rights alive. That’s the position that we would be putting in relation to any interim arrangement but we’re not the only players in this game.

PN1980

We also canvass in the written submission that in the event that, well, if one goes to the point of hearing, going to a hearing in relation to interim arrangements there are several outcomes that could fly from that. One is that some kind of interim arrangement is arrived at. The other is perhaps that the bench is so moved by the cogency of the material that’s filed in relation to the interim matters that it decides to grant final relief on the basis of that material or the other is that we lose that and we either determine the substantive applications by the end of the year or we don’t. If we don’t on our analysis there is a rather inconvenient option available and I say inconvenient trying to put my several hats on being our affiliates hats and our hats and the employers hats and indeed the tribunal’s hat because you would be calling a reactive process where people who say I’m not getting my accident pay anymore and I think I should, we think those people would have rights to come up here and ask for take home pay orders, ditto the case with people who receive district allowances.

PN1981

If we don’t get up on the interim arrangement there is another alternative there but that alternative we say ultimately ought to be weighed. The impracticality of that alternative order be weighed in the balance in assessing the balance of convenience of the other suggestions that we might float in the course of those proceedings. That’s the outline of where we’re intending to go with this and when I made the comment about not having a preference as to whether we call this a common issue or not I’m reminded by the way in which in 2012 we dealt with the matters concerning apprentice pay and conditions that at the centre of that there was a common claim across the award system that said this is what apprentice wages should look like but then there were groups of unions who said we should also have these conditions for apprentices over here in this award and we should have different conditions for apprentices over here in that award. So all of the claims, if you like, were heard together, heard by the one bench and decisions came out at the end of it or in the course of it and that’s the type of thing that we would envisage happening here.

PN1982

We don’t mind whether we’re labelled as a common issue or no for that purpose but, you know, some people have, who are in group one because they’ve had some uncertainty about the status of where these applications might go have done what you might expect them to do and say look to the members who are dealing with their awards in stage one to say look, we want to have an accident pay clause or we want to have a district allowances clause and this is what we want. Some people have already gone down that road because not in an attempt to second guess anybody or to put anybody off side but just because they didn’t know what this bench’s next move was going to be in relation to these matters and they wanted to, if the decision was that they’re all separate matters, they’re all very, very different you should bring them in the award stage, if that view was expressed towards the end of the stage one process these people might have missed out altogether. They ought not in our view be criticised for taking that position.

PN1983

We do ask that the matters be programed in the manner that I introduced which is let’s set a date and let everybody know that a bench, presumably yourselves, will be hearing these matters and you’ve got to get your claim of what you want in by this date if you haven’t already done so. There will be some proceeding to determine whether there should be any interim arrangements, assuming there’s no consensus about resolving substantive matters by the end of the year and there should be some programing for the substantive matters. As I say, this is a process that’s not essentially in law, an application driven process, it’s a commission driven process and you’re at liberty to raise matters or express alternatives in the course of that and I understand some of the questions from the bench that have been asked in the few days that have been directed towards that and it’s not inconceivable that there might be twists and turns along the way that make what could otherwise be a very big and multi-dimensional case a little bit smaller.

PN1984

That’s really a matter of seeing how things evolve but that’s the manner in which we see it progressing and if you wish me to explain any of the matters that have been put in writing or through you and in the other parties wish to go down that road today we can do that but if the desire is to put that off until this date I’m foreshadowing to discuss interim arrangements, equally content to do with that at that juncture. What we envisaged is following any questions that you may or clarifications you may have of me that each of those unions that are present today would be able to say this is what our applications are, this is what our claims are, this is about how long we think we are going to need to get things together and we can try and draw a line of best fit within the respective categories from there. That’s what I wish to say in opening this morning.

PN1985

THE SENIOR DEPUTY PRESIDENT: Yes, we’ve probably got a few questions for you.

PN1986

MR CLARKE: Yes.

PN1987

THE SENIOR DEPUTY PRESIDENT: One is, it would seem to me at least that there might be a coordinating role needed in terms of the various union applications and you’ve indicated that a number of categories that the applications might fall into. Clearly accident pay and district allowance might be one category, sorry, might be two categories. I’m not sure what you’re proposing in terms of Northern Territory allowance if that’s going to be a continuing matter which is going to be agitated. There might be, for example, if there is going to be sought to agitate a claim in relation to district allowances in Western Australia then one would suggest that that would be a rather substantive case that would need to be put together and so if we were to issue directions and we would be asking you what sort of timeframe you’re envisaging for that, I mean, it’s all very well for people to say that we should determine these things by the end of a year but are we are in a position to say that the unions will by middle of next week file all the materials that they want to file in pursuing these matters?

PN1988

I mean if everybody is in a position to do that well, maybe you should let us know and that could be taken into account if we’re going to issue directions. If it is a substantive case that is going to be presented maybe that needs some proper time to prepare.

PN1989

MR CLARKE: Indeed your honour.

PN1990

THE SENIOR DEPUTY PRESIDENT: If it isn’t going to be a substantive case then maybe we can, we will programme it more accordingly so that maybe we can deal with the more important substantive issues first. In relation to accident pay, for example, if you were to put things into different categories there would be a category of applications that have been lodged that seek to do nothing more than to somehow preserve the existing accident pay arrangements which might be generally applicable within the particular award area.

PN1991

MR CLARKE: Yes. That’s right.

PN1992

THE SENIOR DEPUTY PRESIDENT: There might be other applications that seek to do something different from that, to change those existing arrangements, to build upon them, to extend their coverage or whatever. I’m not sure about this that’s why I’m saying there could be a coordinating role. There might also be applications that are there which relate to awards where it’s been suggested in the previous proceedings there are no current entitlements under the saving or the transitional provisions in relation to those matters. I mean, are they going to be agitated and maybe they would be in a different category. When you look at perhaps those categories after you look at that then have there been any discussions between the interested parties in relation to particular awards as to whether there is any measure of agreement between the parties or measure of agreement that might through some exercise of conciliation or conferences be achieved between the parties in relation to some of these matters?

PN1993

If, of course, the parties are able to reach some agreement then it would change the nature of some of those proceedings. Another category and just because of the correspondence which is coming in is this category where what’s being sought to be done with these applications or some of the applications is to significantly change the accident pay provisions and where it’s been indicated to us, at least, that the employers would be intending to mount a significant case with evidence against those proposed changes. All those sort of factors would have an influence in how we might proceed to deal with these matters. I mean, in dealing, we’ve got a range of applications which because they came in somehow related to the work of the full bench dealing with the common issues, the president has decided should be referred to this full bench. That’s a matter now for us to determine how we might best proceed to deal with all those applications.

PN1994

Perhaps even one of the options is to refer them elsewhere to be dealt with because, I mean, there might be industry specific things that could be better dealt with on that basis rather than on a common basis. There seems to be a lot of balls in the air in terms of what might be the best way for us to proceed. I started off asking you some questions but I really was just more or less making some comments and thinking about what might be possibilities in terms of how the programing of these matters might proceed. It would seem to me that what you’re saying is that you would like some sort of an early hearing and it would be a hearing which would encompass all the union applications for some sort of interim orders to be made. You’re seeking some sort of directions in terms of the filing of material, somehow within those directions you would have to envisage an opportunity for discussions between the parties because you could take it that our view would be that there should at least be those discussions at the award level to see to what extent agreement is possible to be reached or not reached before we embark upon any, as it were, hearing to determine the matters.

PN1995

I mean, there’s a range of matters that would need to be considered in terms of if the ACTU is going to coordinate the different matters. I think it’s also relevant to ask and again we don’t necessarily ask the individual unions, we ask the ACTU, how many applications have been lodged out of all the awards which might be relevant? We’re not encouraging any further applications but I mean how many have been lodged and, you know, is it clear that in some awards that they don’t have to now be part of our consideration or in thinking in terms of what might be the ultimate outcome in relation to the various matters.

PN1996

MR CLARKE: Yes, in relation to that I’m not able to tell you how many have been made and how many have been left out.

PN1997

THE SENIOR DEPUTY PRESIDENT: What categories they’re all in?

PN1998

MR CLARKE: Just in relation to both of those points, one of the things that I said earlier is that for programing purposes we should have a date to say if you want to be in this you’ve got to tell us what you want by this date. I would not suspect that there would be very many more thank you’ve already got and in relation to the question of how you might categories those claims I envisage that that may emerge from the explanations that the affiliates are able, who are here by the video links would be able, the manner in which they would be able to characterise what it is that they want. We may be able to reach a working model of that through use of these facilities today. That may or may not have, as I say, some consequences as to how these matters ought to be programed serially or in parallel. You asked me another question, I’m sorry your honour. I meant to – you asked me two questions. I think I’ve only responded to one.

PN1999

THE SENIOR DEPUTY PRESIDENT: The unions can also indicate if there have been discussions at the award level about these matters.

PN2000

MR CLARKE: Yes. The other thing I wanted to raise in relation to categories is that you might find that for example from the outlines of the claims, the applications or whatever we chose to call them that are filed, that there are 20 claims or applications for district allowances and 19 of them want the same provisions effectively and that may streamline things as we go on particularly though discussions in relation to, you know, if we’re going to have district allowances if there is a particular group of them that have a commonality to them that’s very present very early on in the process. That might assist in terms of the order of how we progress.

PN2001

THE SENIOR DEPUTY PRESIDENT: The district allowance matters, I think, would need to be considered in the context of what we already indicated in our decision as to the reasons why we weren’t inclined to grant the ACTU application.

PN2002

MR CLARKE: As I understand it the manner of the applications that have been made by unions are on the basis that here is a proxy with a merit background behind it which determines the costs of living or other types of disadvantage based on particular factors which can be aligned with, can ultimately be aligned with geographic locations but are actually indicators if you like of, it’s all very well to say you get a district allowance in town X which happens to be the hottest place in Australia but if the claim is framed in a way that says you should get an additional allowance where these properties are present in the geographic location, and I think that’s the manner in which some of the applications are made, they use a proxy for that and they say here is something which a meritorious research backing behind it that says people should get paid more when they work in locations that have these characteristics. We would like to somehow adopt that into the manner in which determining - - -

PN2003

THE SENIOR DEPUTY PRESIDENT: If you look at arbitral history to establish those sort of rights and entitlements it would involve a significant exercise. They’re not things that you just, because you had an allowance in town X in one state suddenly should apply to any towns with similar weather conditions throughout the country. That would really be quite a step and it’s not one, if you look at the arbitral history, would be embarked upon lightly.

PN2004

MR CLARKE: No, I understand that and I’m simplifying it for the purposes of explaining the general nature of at least some of the district allowance type applications.

PN2005

THE SENIOR DEPUTY PRESIDENT: I think I’m just simplifying it so that you understand it would be an uphill battle in some of those arguments.

PN2006

MR CLARKE: Yes. I understand what you’re saying, your honour.

PN2007

THE DEPUTY PRESIDENT: Mr Clarke, can I perhaps ask a question in acknowledging what you said in terms of differing to affiliates in terms of the response to awards specific (indistinct). Given what you’re looking for out of today do you have a specific idea of what might be a final date for applications that you would be proposing?

PN2008

MR CLARKE: That’s got to be pretty tight. There’s been a lot of encouragement within the movement for people to have those matters finalised and put before you and we wouldn’t envisage very long at all for that date.

PN2009

THE SENIOR DEPUTY PRESIDENT: Sorry, I didn’t hear what you said. You would envisage what?

PN2010

MR CLARKE: That could be very quickly. That could be within a week or two. No-one is going to be screaming like a stuck pig about that because we understand that to put the outline of the claim in or the application in or whatever you call it is something that we, most people as I say have, who are going to do it have already done it. I think there would only be very few people, very few people who were going to move on this who haven’t done so already. We would expect that they would already be well on their way of having that completed in any event. It could be a week, 10 days, something like that.

PN2011

THE DEPUTY PRESIDENT: Do you have a sense to what extent your affiliates might be advanced in terms of developing the evidentiary material in support of the applications?

PN2012

MR CLARKE: I’m not able to speak to that today unfortunately. That was one of the benefits in being able to bring people together effectively to identify the depths of that material and possibly to maybe, at least in a upfront sense, try and flick a few into different buckets and say well these are really about, this type of claim is somebody who is coming along here saying that accident pay in this industry was really defined by this national standard or being within the award system for this industry since the year dot it’s the same everywhere anyway, we should have it and we should keep it and there may be others who say we’ve got nothing now and we want to invent something and we think this is the way you should do it. There will be others who say look, 60 per cent of our folks in this industry that are covered by the modern award had something, 40 per cent didn’t but those who had something it was pretty much like this and we would like to roll it out to the remainder. Maybe they are some categories but that could be developed through any of the questioning that’s engaged in today.

PN2013

THE SENIOR DEPUTY PRESIDENT: Have you got any idea as to what extent there have been discussions at award level between interested parties on these claims?

PN2014

MR CLARKE: Certainly not involving us. Some affiliates may have discussed with some employer interests, whether they be employer organisations or not or just major employers, what they had in mind but I’m sorry, I’m not able to - - -

PN2015

THE DEPUTY PRESIDENT: Just a variation on a question, Mr Clarke, have there been any conversations at the peak level - - -

PN2016

MR CLARKE: No.

PN2017

THE DEPUTY PRESIDENT: - - - around these programing issues at all? We anticipate not but - - -

PN2018

MR CLARKE: No, no. Other than me and Mr Ferguson having a discussion this morning to say, to explain to him what it is I’m explaining now and say this is what I’m going to say and I’ve said it.

PN2019

THE DEPUTY PRESIDENT: (indistinct) substantive conversations.

PN2020

MR CLARKE: Yes.

PN2021

THE SENIOR DEPUTY PRESIDENT: Do you envisage any further conferences being conducted by the commission in relation to these matters?

PN2022

MR CLARKE: I do, your honour. I think that that’s always helpful to allow for that and as I say that, when I referred earlier on to the possible twists and turns that this might make it’s, as I say, if nine of the 10 people are saying that they want essentially the same thing or having read what everybody else wants goes hang on a minute, I think that’s a better idea let’s do that, that’s the sort of thing that conferences might facilitate and maybe bring things together and narrow it to some point.

PN2023

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Clarke. Mr Maxwell?

PN2024

MR MAXWELL: Thank you, your honour. Your honour, whilst we tend to support the submissions of the ACTU to the extent that the matters may need to be dealt with promptly we do have a claim before the commission. Our claim is specific in regards to three awards, the Building and Construction General On Site Award, the Joinery and Building Trades Award and the Mobile (indistinct) Home Award. We have foreshadowed in the previous full bench proceedings parts of the argument that we intend running in regard to our award specific applications, namely the arbitral history of accident pay in the building and construction industry which is quite substantial but the other matter more recently is what we submit was the, to some extent, an error of the award modernisation full bench in not giving recognition to the national standard that existed across the areas covered by the three awards that I’ve mentioned, especially in terms of the critical mass argument that was accepted by the award modernisation full bench in the general retail award.

PN2025

In terms of our awards we say there are special factors that are relevant to those awards and we would seek to prosecute our case based on those specific factors. To the extent to which those factors are then appropriate for other applications that may then mean that that aspect can be dealt with concurrently. Your honour, just to put things into some perspective - - -

PN2026

THE SENIOR DEPUTY PRESIDENT: Your application just relates to accident pay?

PN2027

MR MAXWELL: Your honour, we have only made application in regards to accident pay. We did submit draft orders in regard to district allowances but there was no actual application advanced before the commission.

PN2028

THE SENIOR DEPUTY PRESIDENT: Yes. We’ve made our decision - - -

PN2029

MR MAXWELL: You’ve made your decision on that and it’s a question of whether we then seek to make a substantial application and how that’s then dealt with in terms of district allowances. It may fall into the foreshadowing of a further application that Mr Clarke was referring to. I should say in that regard our view on the district allowances is that the issue that we’ve raised (indistinct) that we raised in the previous matter about a review of district allowances, we believe that is clearly a 2015 matter. We don’t see that matter being timetabled this year. If I can put the district allowances to one side our main focus is on the accident pay provisions in the three awards that we have a major interest in because of the specifics of those awards.

PN2030

I should point out to some extent we are at a disadvantage compared to some of the other applicants in that the three awards that I’ve mentioned are in stage four grouping of this award review so they will not be starting to be dealt with until possibly the end of next year if not later so we do have a pressing issue to have these matters dealt with as soon as possible.

PN2031

THE SENIOR DEPUTY PRESIDENT: So Mr Maxwell, I hope you’re not going to give us material are you?

PN2032

MR MAXWELL: I’m not going to give you what (indistinct) I just have two documents which I think may help summarise the position.

PN2033

THE COMMISSIONER: Mr Maxwell, have you had any opportunity to talk to (indistinct) industries about reaching a consensus position?

PN2034

MR MAXWELL: Commissioner, we have not been able to and I think given that one of the main employer organisations in our industry was challenging the whole basis on which accident pay should continue I think that’s one of the reasons why we’ve not been able to have such a conference. We would support a conference of the parties involved in those awards meeting to discuss whether there is any scope for an agreed outcome.

PN2035

THE COMMISSIONER: Yes, I probably should have said putting the jurisdictional points to one side is there any consensus about critical mass or anything like that?

PN2036

MR MAXWELL: We have had the discussion in regards to critical mass. It may be that in some awards there is acceptance of critical mass and in some awards not and that’s why I wanted to take you to these two documents because they help explain where we say the critical mass argument arises from.

PN2037

THE COMMISSIONER: How long would you envisage if you had to run this matter separately, how long do you think you would be taking?

PN2038

MR MAXWELL: Commissioner, obviously to the extent if it’s confined to the issue of critical mass issue that could be dealt with quite quickly. If it’s a wider issue going to the issue of the merits of the application and history of accident pay, that would take a longer period. I can inform the bench that we are well developed in the preparation of our submissions in regard to that and perhaps we wouldn’t need as long as other affiliates in which time to file those submissions. I expect that we could do that within two to three weeks on a substantial case but to the extent where we don’t, a more narrow issue of critical mass and the extent to which the pre-reform awards did provide for accident pay it’s just that (indistinct) that would be a much shorter period.

PN2039

THE SENIOR DEPUTY PRESIDENT: Yes, but I don’t think anybody is going to be guaranteeing that if you want one case rather than the other you’re going to be successful.

PN2040

MR MAXWELL: No, and we accept it and to that extent we understand that we would need to run a full case.

PN2041

THE SENIOR DEPUTY PRESIDENT: You say two to three weeks to file the materials. Do you mean by that two week or do you mean three weeks?

PN2042

MR MAXWELL: I think the date I had in mind was sometime around 24 or 25 November.

PN2043

THE SENIOR DEPUTY PRESIDENT: So almost three and a half weeks.

PN2044

MR MAXWELL: Your honour, I’m only raising that in light of I am aware that a number of the parties and ourselves are involved in other proceedings before the full bench by the president. We are currently dealing with an application by or proposed by the HINBA to remove a transitional provision in regard to the two year apprenticeships in Western Australia which has been listed before his honour the President on 20 November.

PN2045

THE SENIOR DEPUTY PRESIDENT: The date you’re suggesting for you at least is 24 November.

PN2046

MR MAXWELL: That’s correct.

PN2047

THE SENIOR DEPUTY PRESIDENT: What about the conferences?

PN2048

MR MAXWELL: We would be in a position to have a conference whenever the commission deems suitable. The party on that is the sooner the better.

PN2049

THE SENIOR DEPUTY PRESIDENT: Would you envisage that in terms of your particular matters that you would seek to have the hearing of the application by the ACTU for an interim order to be made programed first and then whatever hearings relate to your particular matter or would you think that the building and construction awards should actually be programed first and we pull out all stops to hear and determine those matters before the end of this year? I’m only asking you that because it would be something that would apply to everybody else who might be putting that submission because if we are to embark upon a particular case for building and construction then that might involve setting aside some considerable amount of time which means that we obviously can’t deal all the applications before us in a similar way.

PN2050

MR MAXWELL: Your honour, I understand what you’re making and if I was to be selfish in the point of the CFMEU our preference is that our matter be dealt with before the end of the year. Now, if the ACTU is successful in regard to the issue of interim relief then that, our case may the not need to be heard before the end of the year. Obviously our concern would be is if the ACTU are successful in regard to the interim relief then we don’t want our case then delayed because of waiting for that and we are happy to be heard before the end of the year.

PN2051

THE SENIOR DEPUTY PRESIDENT: Again can I just get a short answer to this, the claim that you’re making, to what extent does that change what would be the existing position in terms of accident pay under the award? Under the three awards.

PN2052

MR MAXWELL: Your honour, if I could answer it this way. The provisions we seek to be inserted into the three awards reflect the existing provision, sorry, reflect the provisions that are in the pre-reform awards, the national pre-reform awards. For the building and construction industry it’s 26 weeks, the joinery award 26 weeks, mobile home 52. That was the purpose of what one of these documents (indistinct) was the pre-reform awards and the NAPSA applicable and I do accept that this may not be the (indistinct) I’ve used a document which was the first one and then culled it to take out all those enterprise awards and things that were not relevant but I’ve dealt with the main pre-reform awards and NAPSAs that were considered as part of those awards.

PN2053

Clearly there will be an issue of the extent to which our claim then imposes a new obligation on some people that may have been covered by NAPSA where there wasn’t an entitlement. Effectively we have two scenarios. Where awards provided for accident pay there was a standard but there are some awards that didn’t provide for accident pay and so that’s where the difference lies. The reason for that is historical because in a number of states there was not the need for the accident pay provision because the workers compensation paid the full amount for the 26 weeks. The standard is being the number of weeks and that standard has been consistent in those states where that had the accident pay provisions.

PN2054

THE SENIOR DEPUTY PRESIDENT: The answer is in general you’re seeking the same length of time as would currently be applied under the awards.

PN2055

MR MAXWELL: That’s correct.

PN2056

THE SENIOR DEPUTY PRESIDENT: In relation to the coverage of the existing provisions some people under the awards would not be covered by the current accident pay provisions but you would be saying most would be.

PN2057

MR MAXWELL: Yes.

PN2058

THE SENIOR DEPUTY PRESIDENT: You’re seeking a provision such that all would be covered in essentially the terms of what the others are covered by.

PN2059

MR MAXWELL: That’s correct and to essentially then have a clause that doesn’t defend section 154.

PN2060

THE SENIOR DEPUTY PRESIDENT: This is general position in terms of your awards.

PN2061

MR MAXWELL: Yes.

PN2062

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2063

MR MAXWELL: I think that’s all I can you to at this stage, your honour.

PN2064

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Moretta?

PN2065

MR MORETTA: If your honour pleases. The SDA have already filed their application in relation to what we seek in any future proceedings in relation to accident make up pay and we are speaking in relation to accident make up pay. I also have filed a submission this morning with the registry in support of that application that was made on 30 September. In terms of the programing, I think it’s been excessively dealt with by the ACTU and the CFMEU and we are guided by what the commission thinks in terms of programing. If it sees that where submissions or further submissions that need to be made we will be guided by the commission. We think or we believe that we can actually have any further submissions that we have to submit we could have them probably within the timeframe of three weeks or so.

PN2066

I have to say that the SDA has done a lot of work in relation to getting information with respect to the historical context of the accident make up pay especially with respect to the (indistinct) industry and the awards that the SDA has had interest and that has actually been presented in the submission that I filed this morning. I must say that from the SDA’s perspective we have gone a long way to work towards having something heard this year after our submissions have been filed. What we are seeking if that we would like to have a provision, an accident make up pay provision that would apply across all jurisdictions in the modern award based on the standard that the retail awards that did have accident make up pay or the pre-reform awards that had accident make up pay in terms of the quantum, the number of weeks that applied, we would like to see that extended beyond the jurisdiction such as obviously the Victorian jurisdiction which many of the or most of the federal awards with accident make up pay have.

PN2067

THE SENIOR DEPUTY PRESIDENT: Can I just clarify, the applications that you’ve made in relation to these awards and by you do I mean the SDA, the national office?

PN2068

MR MORETTA: It’s actually work done by the Victorian office but we have filed it through the national office so it is, yes.

PN2069

THE SENIOR DEPUTY PRESIDENT: It relates to those six awards, I think.

PN2070

MR MORETTA: That’s correct.

PN2071

THE SENIOR DEPUTY PRESIDENT: It’s only in relation to accident pay?

PN2072

MR MORETTA: That’s correct.

PN2073

THE SENIOR DEPUTY PRESIDENT: The position in relation to those awards generally is that, and I’m not trying to put words into your mouth I’m just trying to understand what the position is, most employees presently have an entitlement under the transitional provision or other provisions to accident pay or they don’t?

PN2074

MR MORETTA: In light of the case that’s been heard it seems that under the pre modern award the accident make up pay entitlement had been extinguished by work choices so effectively one could put forward that accident make up pay is not, the entitlement to accident make up pay was invalidated in the awards. I think we have to concede that.

PN2075

THE SENIOR DEPUTY PRESIDENT: Does that mean that currently under these awards there is no entitlement to accident pay?

PN2076

MR MORETTA: Based on the submissions that have been made I seems, the position was prior to 2006 there was entitlement to accident make up pay in the awards.

PN2077

THE COMMISSIONER: And what is the practice now?

PN2078

MR MORETTA: The practice now, I may say that the awards, the federal awards or pre-reform awards that operated prior to the modern awards actually retained effectively those clauses in the awards. If you were to actually take a pre-reform award or an award that applied prior to the non-awards taking effect, those provisions were in, still in those awards.

PN2079

THE COMMISSIONER: Do the employers apply make-up pay to your members now or not?

PN2080

MR MORETTA: As far as we understand, they do.

PN2081

THE SENIOR DEPUTY PRESIDENT: They do? People are getting paid accident pay under the awards.

PN2082

MR MORETTA: I’m not aware of employers that are not.

PN2083

THE COMMISSIONER: What about new employees in your industry that come into the industry since 2010?

PN2084

MR MORETTA: I can’t answer that. I just don’t know.

PN2085

THE SENIOR DEPUTY PRESIDENT: It’s going to be important to clarify this because it really, I mean, if there is no accident pay entitlement under the awards at the present time then the SDA members would have been served by seeking to agitate some case for a national standard covering all award employees but that isn’t the case which we’ve got or we had before us. If it goes back to individual award matters there are some of the first questions we would be asking and what exactly what the purpose and effect in these award arears of seeking to make the changes to the award that you’re seeking. I mean, I think you’ve said you’re reasonably advanced in terms of the preparation of what you want to put. I think it becomes a more substantial case if there is no entitlement of limited entitlement across the coverage of the award so it becomes a more substantive case that I think you have to mount. Again, what discussions and conferences have you had with the retail employers about these matters?

PN2086

MR MORETTA: No discussions to date in relation to this but we would be obviously open to having these discussions and any conferences that the Fair Work Commission deems appropriate, we would participate.

PN2087

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2088

MR MORETTA: If that assists.

PN2089

THE SENIOR DEPUTY PRESIDENT: Yes. I would actually at some stage be useful to clarify exactly what the position was under the retail awards now, if there is an actual entitlement to accident pay because if people are going to be putting an application for an interim order we would like to know what implications it might have or in your case it might not be needed because there’s no operation of the transitional provisions. No practical operation.

PN2090

MR MORETTA: Yes, your honour.

PN2091

THE SENIOR DEPUTY PRESIDENT: Yes, anything else?

PN2092

MR MORETTA: Nothing further.

PN2093

THE SENIOR DEPUTY PRESIDENT: I was tempted to go to Western Australia because there’s also an appearance by the SDA in Perth. Mr Millman?

PN2094

MR MILLMAN: Yes, thank you your honour. We agree with what Mr Morretta has just told you in respect to the accident make up pay. We also agree with what’s been proposed by Mr Clarke and we accept your honour’s position that there are a number of balls in the air as to how we go forward. As far the district allowances are concerned, your honour will see in our amended submissions that a number of applications have been made, both for substantive and interim relief. Mr Maxwell from the CFMEU has already proposed a timetable in respect to his clients. We would be proposing a similar timetable for interim relief that would see our submissions and evidence filed by 14 November. As your honour has alluded to though, in terms of an application for district allowance or to put it more accurately an allowance that is consistent with section 129 of the Act, there’s no question that that would be a substantive process and we would be in the full bench’s hands about the programing of that because of the decision that’s been handed down this morning which we earlier had a chance to review (indistinct) the 31 December needless to say, an important date for us.

PN2095

THE SENIOR DEPUTY PRESIDENT: This is in relation to district allowance.

PN2096

MR MILLMAN: That’s right, your honour.

PN2097

THE SENIOR DEPUTY PRESIDENT: According to what you put in the previous proceedings there’s very few employees who might be directly impacted.

PN2098

MR MILLMAN: Can I clarify that, your honour? It’s not a question of very few employees who might be impacted, the proper way to characterise the figures that were given to you yesterday were the number of SDA members who are award specific. That doesn’t take into account non-union, other people who haven’t been accounted for. The second point is that irrespective of the number of people effected the nature and extent of the effect on those people is quite significant as members of the full bench would have noted from the value of the district allowances that they’re being paid.

PN2099

THE DEPUTY PRESIDENT: It depends which locality they are located in given the numbers that you were talking about yesterday, Mr Millman.

PN2100

MR MILLMAN: Yes, I accept that.

PN2101

THE SENIOR DEPUTY PRESIDENT: Have there been discussions with the employers in Western Australia about these matters?

PN2102

MR MILLMAN: No, no. We would welcome the opportunity to have discussions. If the full bench is minded in terms of an application for interim orders in the substantive applications, as I say we intend to file our submissions and evidence by 14 November perhaps allowing two weeks for responsive submissions and evidence to 28 November and then some reply submissions by 5 December and then the following week, the week starting the 8^th would be a good opportunity for those discussions to take place once the material is on and then perhaps a hearing the week starting 15 December.

PN2103

I appreciate that I’m moving the commission through some expedited dates but that would at least give us the opportunity to seek some interim relief before the effect of the decision removing the – sorry, the effect of the decision in respect of the transitional provisions takes effect on 31 December.

PN2104

THE SENIOR DEPUTY PRESIDENT: Let me just ask you because we’ve got a mass of material before us and I’m not clear but what are your applications seeking?

PN2105

MR MILLMAN: Okay. Your honour, if I can take you, I’m not sure if you have it before you but I can take you to our amended submissions that were filed in the transitional provisions matter.

PN2106

THE SENIOR DEPUTY PRESIDENT: No, just tell us very briefly, are you seeking a continuation of the district allowance provisions in Western Australia?

PN2107

MR MILLMAN: In the substantive applications we’re seeking the interruption of the provision that provides for the payment by allowing the allowance in all states and territories to compensate employees for disabilities associated with performance of work in harsh climatic conditions or remote locations. That’s what we’re seeking, that’s what our substantive applications that have been filed by the SDA are seeking.

PN2108

THE COMMISSIONER: How do you define harsh climatic conditions?

PN2109

MR MILLMAN: We define it consistent with section 139 which is where we get the language from.

PN2110

THE COMMISSIONER: Mr Millman, currently only people in the Northern Territory and WA get those allowances. Is that right?

PN2111

MR MILLMAN: Northern Territory, WA and Broken Hill. My friend, Mr Cagney, is available I think in Adelaide and he can clarify there are people in South Australia who are also entitled to those allowances.

PN2112

THE COMMISSIONER: You just said your application now wants to cover Queensland, New South Wales and Victoria and Tasmania?

PN2113

MR MILLMAN: What we’re studiously trying to avoid is falling foul of section 154 in terms of state based locality allowance. What we say consistent with section 131 of the 2008 decision (indistinct) the explanatory memorandum is that you can have locality allowances but they need to be consistent with the legislation.

PN2114

THE COMMISSIONER: Are you going to nominate towns in Queensland, for example, and specify rates of pay or allowances, I should say?

PN2115

MR MILLMAN: For the time being we’re happy to nominate a list of towns in Western Australia. We don’t want to proceed in our application, as I say, that is going to fall foul of section 154.

PN2116

THE COMMISSIONER: Thank you.

PN2117

MR MILLMAN: I’m further instructed, Commissioner that the nature of the district allowances sought or the nature of the application of the (indistinct) forms part of the substantive application consistent with what your honour Commissioner Boulton said at the start. Unfortunately this is not a – this will be an extensive matter.

PN2118

THE SENIOR DEPUTY PRESIDENT: I’m just wondering whether indeed it is a matter about district allowances. It seems it could be categorised as maybe a matter about something else and whether indeed it’s a matter that should be dealt with by the current full bench in that context. Anyway, we understand what you put. Anything further?

PN2119

MR MILLMAN: No thank you, your honour.

PN2120

THE SENIOR DEPUTY PRESIDENT: Would it be appropriate if we hear Mr Cagney in Adelaide if you wanted to say anything that about that particular matter.

PN2121

MR CAGNEY: Yes, thank you your honour. Just to clarify that the allowances in the awards that have been subject of the application that have been made by my colleague Mr Millman in Western Australia, there are district allowances for places in Northern Territory and also Broken Hill and given the size of the towns that those allowances are payable such as Darwin and Alice Springs it does have a significant effect on the employees in those areas. I think in the Northern Territory in the last ADS statistics there were upwards of nine thousand people working in retail trade in the Northern Territory so those employees that are covered by the award or the award applies to them it does have a significant effect on them.

PN2122

In terms of timetable, we largely agree with the submission put by Mr Millman in terms of dates and we would be in a position to comply with our side of the submissions within those time frames.

PN2123

THE SENIOR DEPUTY PRESIDENT: Yes. In relation to the Broken Hill allowance, I’m not aware what is the position with the Broken Hill allowance. Has that just gone into whatever the relevant awards and there’s no sunset provision?

PN2124

MR CAGNEY: No. In the particular awards that are subject of our application there’s, the WA, the NT and then the Broken Hill allowance. The Broken Hill allowance I think in most of the award are subsection (c) and the sunset clause is subsection (d) so it is the subject of the sunset clause. If memory serves me the clause reads something along the lines of employees within the county of (indistinct) or Broken Hill which are interchangeable, their paid 4.8 per cent for the exigencies of working in Broken Hill. That is the wording of the clause. It doesn’t actually refer to previous acts as the WA and NT allowances do.

PN2125

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I think we will stay in Sydney. I think if we can we would prefer to hear all the unions and then we might have a break before we hear what the employers want to say. Mr Blaxland?

PN2126

MR BLAXLAND: Thank you, your honour. The AWU has filed an application on 29 September to insert accident pay provision in 15 different awards however we’re likely to be seeking to amend that application to reduce it to seven being the Concrete Products Industry Award, Dry-cleaning and Laundry Industry Award, the Gardening and Landscape Services Award, Horticultural and Hydrocarbons Industry Award, the Oil Refining and Manufacturing Award and the Wine Industry Award. In each of those we will be seeking to establish new industry specific national standards based on the accident pay entitlements that exist or existed in the corresponding pre-modern awards. I don’t know whether you want me to go through each of those?

PN2127

THE SENIOR DEPUTY PRESIDENT: Does that mean that they’re the same or are they improved or are they simply extended to all workers or what?

PN2128

MR BLAXLAND: Generally they’re the same and again we would be basing our argument on the critical mass statements that were made in the 2008 full bench decision. Sorry, 2010 full bench decision regarding the retail award. While not extending the entitlements that existed in the pre-modern awards we will be seeking for it to extent to the entire industry and there obviously are some awards within those industries that didn’t have accident pay entitlements but again on that critical mass argument we believe that they should be inserted or retained. We would be seeking a maximum of 26 weeks for all the awards apart from two, being the Hydrocarbon Industry Up Stream Award and the Oil Refining and Manufacturing Award and we would submit that each of those awards would have a maximum entitlement of 52 weeks as that’s the standard that was across the pre-reform awards. Apart from that, your honour, if there’s any questions that you would like to ask - - -

PN2129

THE SENIOR DEPUTY PRESIDENT: Any discussions, conferences with the employers?

PN2130

MR BLAXLAND: You may have to bear with me. I’m somewhat of a minder of this matter while my colleague is on leave so I’m not aware of too much of the previous conversations that were had but from my understanding, no, not with the employer groups at least.

PN2131

THE SENIOR DEPUTY PRESIDENT: You’re ready to file your submissions and evidence?

PN2132

MR BLAXLAND: We would probably be requesting a little (indistinct) on that time, your honour. I know that the AWU has an interest in all but about five of the stage one awards and I know that there is a number of hearings that are currently scheduled throughout November for those so we would be seeking at least a month to file.

PN2133

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2134

THE COMMISSIONER: Mr Blaxland, you may not be able to answer this seeing you’re only the minder but I assume most of the stuff, for example in the Hydrocarbons Award in the modern award was included because it was a critical mass issue?

PN2135

MR BLAXLAND: Yes.

PN2136

THE COMMISSIONER: Why did this accident pay (indistinct) not get put in?

PN2137

MR BLAXLAND: I’m not too sure, Commissioner. It may be as Mr Maxwell suggested that it was a mistake of the full bench not to include it or perhaps - - -

PN2138

THE COMMISSIONER: Just on that, was anything put to the full bench?

PN2139

MR BLAXLAND: Not to my understanding.

PN2140

THE COMMISSIONER: That would be a mistake then, wouldn’t it?

PN2141

MR BLAXLAND: Yes. Again, I would probably reserve to make any sort of actual submission on that.

PN2142

THE COMMISSIONER: I’m just wondering why this hasn’t all been argued when the first award came down. If you weren’t present then you can’t help me.

PN2143

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2144

MR BLAXLAND: Thank you.

PN2145

THE SENIOR DEPUTY PRESIDENT: Well, we might go to – I’m thinking we might go to Ms Knightly. You’re now in Perth are you, Ms Knightly?

PN2146

MS KNIGHT: (indistinct) appearance on behalf of the ASU. I’m not familiar with the Fair Work Commission. Ms Knight, K-n-i-g-h-t, Joanne for the ASU.

PN2147

THE SENIOR DEPUTY PRESIDENT: Yes. Please proceed.

PN2148

MS KNIGHT: Thank you, your honours. The ASU does concur with the joint union’s submission put to the commission by the ACTU in their submissions. We continue to make particular mention of ASU members working in (indistinct) and clerical industries as well as many local government employees who are on (indistinct) in remote areas of Australia. (Indistinct) clerical and remote working local government employees (indistinct) the majority of (indistinct) clerical workers are also more than likely government employees in the remote areas.

PN2149

Should the commission decide to allow district allowances to be based (indistinct) clerical and local government focus would equal a disadvantage. The ASU submits we will be able to provide evidence that shows current employees face out of pocket costs of up to $15,000 per annum in one circumstance should that current entitlement for district allowances be removed. The ASU plan to put forward its witnesses that each narrow on specific applications including (indistinct) clerical and local government workers often attached to remote centres. Remote centres are in the ASU submissions, continue to provide services to for example cattle stations. In one example an ASU local government worker maintaining (indistinct) in Halls Creek must travel a hundred kilometres to (indistinct). Many remote workers attached to that location travel 250 kilometres just to get to Halls Creek.

PN2150

In circumstances like the Halls Creek example basic groceries come at a premium. The ASU intends to provide an investigation into the cost of living of our members. It would be similar (indistinct) district allowance entitlement. With respect to accident pay the ASU agrees with the ACTU’s submission of 1 August 2014 (indistinct) clearly provides the differences state by state compensation schemes and gaps in compensation paid to retain one hundred per cent of income while recovering from workplace accidents. As has been submitted the table also clearly reminds us that (indistinct) after their introduction.

PN2151

The variability between states could rightly be remedied by a national approach to standards and the ASU supports the argument to resolve very early between states. Coming to the matter of how the ASU’s more specific application should be dealt with the union seeks to establish the merits of their substantive cases. The ASU (indistinct) affiliates on dates for final applications however any dates (indistinct) 17 November would be inconvenient for the ASU. For the commission to hear the ASU case the ASU would put forward (indistinct) for each of our claims. The ASU suggests around half a day to a full day for witnesses to appear and the ASU has made an application for the two award provisions, each with different evidence however the district allowances and accident pay claims were to be separated the ASU will continue to rely on the same submissions.

PN2152

From the determination made on merit (indistinct) would then see that the commission dedicate more resources to fully investigate substantive claims. As long as that date for accident pay and district allowance provisions in a number of awards put the income of ASU members particularly (indistinct) clerical and some local government industry workers who are award reliant at serious risk of losing sometimes in excess of $5000 per annum. On the basis that the commission would find that the substantive claims have merit proper investigation would require a dedicated resources of the commission and I will leave it there. Thank you, your honours.

PN2153

THE COMMISSIONER: Ms Knight, did I hear you right saying that someone could be disadvantaged by $15,000 a year?

PN2154

MS KNIGHT: In one circumstance we currently have a witness who has made a statement for us in regard to the fact that he’s a (indistinct) employee.

PN2155

THE COMMISSIONER: Is that district allowance is it or something else?

PN2156

MS KNIGHT: In the statement that I’ve been provided with it’s on the basis that they would lose their district allowance, yes.

PN2157

THE COMMISSIONER: That averages nearly - - -

PN2158

MS KNIGHT: Their statement says they would face out of pocket costs up to that amount as a result of losing the allowance.

PN2159

THE COMMISSIONER: That’s roughly about $300 a week and I don’t think the district allowance is anywhere near that, is it?

PN2160

MS KNIGHT: I take the question on merit, your honour, that’s the information I’ve been provided with. I can certainly respond to that question.

PN2161

MR MILLMAN: They think you said 15 thousand. You said 15 hundred.

PN2162

MS KNIGHT: I apologise your honours. I was just corrected in that. I said 15 hundred not 15 thousand. Sorry.

PN2163

THE COMMISSIONER: All right, thank you.

PN2164

THE SENIOR DEPUTY PRESIDENT: Just to be clear, Ms Knight, I think at one stage the week beginning 17 November was inconvenient and I didn’t quite catch just because of the quality of the audio whether that was in terms of a time frame for the final lodgement of applications or whether it was a time frame within which the ASU could lodge its submissions and evidentiary material.

PN2165

MS KNIGHT: It would be for the final applications. Sorry, for any hearing before a day (indistinct) reply. I believe that final application has been made.

PN2166

THE DEPUTY PRESIDENT: Just in terms of the time frame for the ASU, what I will describe as the supporting material, what do you think is realistic from the ASU’s perspective? I mean, you would have heard from some of the other unions that it ranges from late November, two to three weeks to about a month’s time. I just wanted to get a sense from the ASU’s perspective.

PN2167

MS KNIGHT: Yes, your honour. I appreciate the question. I’ve been instructed to confer with the other unions, the ASU is willing to work with what the commission decides based on the submissions from all the unions.

PN2168

THE DEPUTY PRESIDENT: Thank you.

PN2169

THE SENIOR DEPUTY PRESIDENT: Just to confirm, Ms Knight, you’re speaking on behalf of the ASU so that’s as it were the national ASU but some of these things, for example your witnesses, are they all Western Australian witnesses?

PN2170

MS KNIGHT: We expect to produce witnesses from other states, your honour, particular Northern Territory where we have other concerns but Northern Queensland and certainly Broken Hill for New South Wales.

PN2171

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. We should go to the various union representatives in Melbourne. I don’t mind which order you go in but again can you just indicate which union you’re from when you start. Who wants to go first? Mr Murphy?

PN2172

MR MURPHY: Yes, I’m from the UFU. We’ve made an application with respect to the Fire Fighting Industry Award only. It’s just for accident pay. We’ve only made it this week, in fact. We support what the ACTU have said with respect to the timing and to hearing the applications concurrently. I think we could file our material in three weeks potentially. Our application is to extend the coverage of the accident pay clause but the amounts of accident pay would reflect the pre-reform award.

PN2173

THE SENIOR DEPUTY PRESIDENT: How much are you extending the coverage by?

PN2174

MR MURPHY: It would remove the provisions that state that it only applies to employees who were covered by NAPSA or division 2(b) awards et cetera that have the provisions, if that makes sense.

PN2175

THE SENIOR DEPUTY PRESIDENT: It does but not without telling me what the NAPSA’s and pre-modern awards covered. I’m just wondering whether they just covered Victoria and you’re now seeking to extend it to all employees under the award or what.

PN2176

MR MURPHY: We’re still getting on top of that but it certainly covered Victoria and some other locations but I’m not sure at this stage.

PN2177

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Murphy. I assume - - -

PN2178

MS REED: Your honour, Ms Reed for the CFMEU forestry division. I appear in relation to our application for the Timber Industry Award. In relation to that, sir, your honour and commissioner I see that we are in a very similar position to that put by Mr Maxwell in relation the Construction Industry Awards. Before I start, the Timber Industry Award is divided into three sectors which are the general timber sector, the pulp and paper sector and the furnishing sector. Since modernisation has recognised that different conditions can apply across those three sectors and we say that are application is differentiated on the basis of the three sectors.

PN2179

In relation to the pulp and paper sector the application maintains the pre-existing pre-modernisation standard of 52 weeks which applied throughout the entire industry covered by the pre-modernisation award with the exception of Tasmania. We say that is essentially just maintaining an existing standard. There’s clearly a weight of regulation and a critical mass there in that there was essentially at least two awards covering that sector and both of them had an identical standard. In relation to the timber sector we say that the relevant federal awards prior to modernisation all provided for accident make up pay generally to a standard of 39 weeks. A number of the NAPSA’s also provided a comparable standard, one to 26 weeks but generally the standard in the timber industry was 39 weeks. The federal Timber Industry award prior to modernisation applied in New South Wales, Victoria, South Australia, Tasmania, Western Australia and the Australian Capital Territory and provided for a uniform accident make up pay across all of those territories.

PN2180

We say our applications in relation to the timber sector is to maintain the pre-existing standard of 39 weeks and there’s a weight of regulation and critical mass supporting the maintenance of that standard. In relation to the programing we would be able to adopt the proposed timetable suggested by Mr Maxwell. We would be able to file by 24 November, your honour.

PN2181

THE SENIOR DEPUTY PRESIDENT: Thank you. Is it Ms Wiles?

PN2182

MS WILES: Thank you, your honours and commissioner. I appear on behalf of the Textile, Clothing and Footwear Union, national union in relation to the TCFU’s application which was filed on 29 September 2014. That application only relates to one award which is the Textile, Clothing and Footwear and Associated Industry Award and it only relates to accident pay. I should indicate that the TCF award is in stage one of the award review. Attached to the TCFU’s application was a draft determination and that determination contains a proposed clause based essentially on accident pay terms in a critical mass pre-reform federal award in the textile, clothing and footwear industry. The TCFU has proposed a new clause, it has been simplified and shortened for the purposes of the modern TCF award.

PN2183

Consistent with the outcome of award modernisation in the industry the proposed clause would apply to the TCF industry generically rather than to the specific TCF sectors such as textile, clothing and footwear. The draft determination includes a national standard maximum of 39 weeks for the TCF industry and that’s based on the quantum provided by the majority of relevant pre-reform awards in the TCF industry. The familiar (indistinct) in the TCF industry there has been award regulation which has dealt with accident pay in the industry. Just briefly going to the main pre-reform federal awards, there was a textile industry award 2000 and the coverage of that award included all states and territories other than the Northern Territory and it provided a quantum of a maximum of 39 weeks entitlement for accident pay.

PN2184

The federal pre-reform Clothing Trades Award 1999 similarly it had coverage across all states and territories, in Queensland it had a partial coverage and it did not apply in the Northern Territory. That was the only exception. In that award there was a maximum quantum of 26 weeks. The pre-reform Felt (indistinct) Industry Award 1999 which is part of the clothing industry, it actually covered all states and territories including the Northern Territory and it provided a quantum of 39 weeks. The Footwear Manufacturing and Component Industries Accident make up Victoria Award 2002, its coverage was limited to Victoria and it provided a quantum of 39 weeks.

PN2185

What we say, Honours and Commissioner is that in relation to the two largest TCF industry sectors being textile and clothing there was essentially national geographic coverage in respect to accident pay other than one case or a couple of cases excluding the Northern Territory. We say that this does represent a critical mass of pre-reform awards in the TCF industry in which accident pay was an established feature and that that constitutes a clear pattern of award regulation of accident pay in the industry. We do acknowledge that the pre-reform federal award accident pay coverage in the footwear sector was limited to Victoria however in our view it is relevant that the footwear industry is one of the smallest TCF sectors and has been classified by this commission to be part of the clothing industry and (indistinct) on that basis during the part 10A award modernisation process.

PN2186

Prior to the pre-reform awards there was also antecedent accident pay provisions in the pre simplified award in the (indistinct) industry again the textile and clothing sectors. Notably, the accident pay provisions in the pre-simplified TCF awards were in very similar terms to those included in federal awards during the award simplification process so we say there’s been not only a consistent presence of accident pay provisions but within awards of the industry but the form of those provisions have also been very similar. There has also been accident pay provisions in a number of TCF industry NAPSA’s. There’s at least three in New South Wales and one in Queensland.

PN2187

THE DEPUTY PRESIDENT: Ms Wiles, can I just interrupt there? I think we’re really trying to focus on programing issues and a lot of the material that you’ve just mentioned sort of kind of goes to what I might describe as supporting material in terms of the application. I’m just wanting to get a sense of in terms of I suppose being in a position to file substantive material in support of your application, what do you think is the sort of timeframe that the TCFUA would need to be in a position to do that?

PN2188

MS WILES: Your honour realistically because we are in stage one we have some, we are part of those proceedings and also have interest in other full bench proceedings. We would probably require four weeks to file our material and if pushed we could probably file it in three but our preference would be four weeks.

PN2189

THE DEPUTY PRESIDENT: Thank you. If I can just follow up a couple of the other common questions that the bench has asked of the parties, have there been any discussions between the TCFUA and relevant industry employer organisations in the sector around the issue of accident pay?

PN2190

MS WILES: Your honour, the main industry organisations that have members in our industry are the Australian Industry Group and also Australian Business Industrial in New South Wales. They are the main two and at this point we have had not had any separate discussions with those organisations but clearly we are very open to have those discussions to see if some sort of resolution could be reached around a proposed clause or whether the issues in dispute could be reduced so yes, we are open to that process. In terms of the programing, we support and adopt the submissions, the written submissions of the ACTU filed on 29 October and the further oral submission made by Mr Clarke this morning.

PN2191

In terms of, I guess, the scope of the TCFUA’s case we would obviously be leading some witness evidence essentially around the nature of the industry, the presence of accident pay within awards in the industry and also about the nature of the TCFUA industry and its workforce and its level of award reliance in particular. We would think that would be, at this stage, probably a day, a day and a half type of case if that assists the bench. They’re our submissions at this stage.

PN2192

THE SENIOR DEPUTY PRESIDENT: That’s for your case, is it? That’s for your case in relation to this particular award.

PN2193

MS WILES: That’s correct, your honour. That might be a little bit premature but in terms of – we’ve obviously been giving thought to the scope or the level of evidence and submissions involved in relation to the TCF award and that’s what we would think. That’s probably expansive. It probably could be done in a day depending on what material the employers filed in response.

PN2194

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr McCarthy?

PN2195

MR MCCARTHY: Yes, thank you, your honour. I’m here on behalf of the ANMF. The ANMF put forward an application on 17 October which foreshadowed the (indistinct) the same time as the other union applications. Our application (indistinct) district allowances and accident pay and to one award only being the Nurses Award and we filed draft determinations with those applications. Our application is to preserve and extend entitlements across Australia in relation to nurses covered by the award. The draft determinations put in the district allowance provision is similar to a provision put similarly or the same as the provision put in by the, I believe, the CFMEU and ASU. That provision is also adapted from the provision that provides in Western Australian pre-modern nursing awards.

PN2196

In relation to district allowance in pre-modern nursing awards, there was district allowance or location allowance provisions in at least four states or territories and five if you count the public sector in the Northern Territory however that’s subject to the Northern Territory enterprise agreement process. The (indistinct) of those awards are quite variable (indistinct) based awards in relation to the states but we say that there’s a critical mass there of district allowance, location allowances that cover nurses prior to modern awards beginning. As I said, there’s quite variable provisions and quite variable amounts that are provided for allowance, district allowance. The most significant amount is in Western Australia which is up to $55 a week. Varying amounts of up to $55 a week. So that’s our district allowance proposal.

PN2197

Accident pay was only in the private sector that provided for 39 weeks in several nursing awards in Victoria. It was also in the Northern Territory public sector however that’s again wasn’t taken into account in the nurses’ award because it wasn’t private sector. Victoria was the only state that we would be seeking to extend that provision across to all other states and territories. The provision we used is largely a Victorian provision with 39 weeks as adapted to make it or basically changes it to it because the old provision is a bit convoluted in its wording but in the substance of it we haven’t changed from the, what was in the Victorian awards. In relation to the effect that the removal of the – sorry, the sunset date kicking in at the end of this year, we say this could have a significant effect on employees particularly in Western Australia. As I said, allowances up to $55 a week and most theoretically that could be up to $2500 a year we’re talking about. However, not all the employees, we have quite a few employees who are covered by agreements rather than awards so we don’t have exact figures as to how many this would effect at this stage.

PN2198

As far as programing goes, I think the other unions have indicated that as far as accident pay goes three to four weeks would be sufficient to provide supporting material. I believe we could meet that as well. District allowances might require a longer period of time. I note that Mr Maxwell from the CFMEU referred at one point to saying that he couldn’t see the matter being timetabled this year but then I couldn’t quite hear all of what he said later on so I’m not sure what his proposal was in relation to the district allowance matters however there is a commonality between all district allowance matters (indistinct) so we think they should be dealt with together. It might need a bit longer in relation to providing supporting on district allowances.

PN2199

THE SENIOR DEPUTY PRESIDENT: I assume that the claim you’re making on district allowances is not solely related to Western Australia.

PN2200

MR MCCARTHY: That’s correct, your honour. That would be a district allowance provision that would cover the whole of Australia. Obviously, as I said there were at least four pre-reform, pre-modern awards that had district allowances but of course the modern award only maintains Northern Territory and Western Australia district allowances so to that extent it would be a new claim for those states and territories outside of Western Australia except for the fact that they had prior to five years ago. Just in relation to speaking, we haven’t spoken to any employer associations about this claim however we do note that the aged care employers in the private hospital industry put in brief submissions earlier this week opposing our claims so I would be quite happy to discuss the matters further. That’s my submissions, unless you have any questions.

PN2201

THE COMMISSIONER: I do have one question. What is the argument to be put forward, not that I want to hear it but what is the argument to be put forward as to why accident pay should be extended outside Victoria to across Australia.

PN2202

MR MCCARTHY: We can see that there is not a critical mass in relation to nurses across Australia. The argument would be that basically on the basis of the modern awards objective there’s a high rate of workplace injury to nurses and they should be protected from loss of pre-injury earnings so it would be an argument of the merits of the matter.

PN2203

THE COMMISSIONER: Thank you.

PN2204

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr McCarthy. Ms Weeber?

PN2205

MS WEEBER: Thank you your honours and commissioner. I appear for the Australian Manufacturing Industry Union vehicle division. My colleague Mr Nguyen appears for the union in relation to the other awards within our coverage. My interest is in the vehicle manufacturing, repair, service and retail awards and is in relation to accident pay only. Our application on 29 September seeks to insert into the award a provision which mirrors the accident pay entitlement in two major federal pre-reform awards so to that extent we say that it’s a continuation of a pre-modern entitlement. The one complication is, however, that that entitlement for accident pay is 39 weeks other than New South Wales and Queensland where it is 26. We are seeking to have a uniform entitlement of 39 weeks across the jurisdictions so to that extent it is a new claim so to speak however the clause itself is, in general terms, a continuation of what we would say is a pre-modern national standard for both the manufacturing and repair service retail industries which are contained in the two major pre-modern awards identical accident pay provisions.

PN2206

In terms of timetabling we would be happy to comply with the timetable proposed by Mr Maxwell so our material would be in by 24 November. We do anticipate a small handful of witnesses but probably unlikely to be more than two or three. While the employer associations are aware of our application particularly in the retail services (indistinct) we haven’t had any substantive conferences to date but would be more than happy to engage in direct conversations with them leading up to the hearing.

PN2207

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Nguyen?

PN2208

MR NYUGEN: Thank you, your honour. The AMW’s applications are in relation to Manufacturing Award, the Graphic Arts Award (indistinct) and the Airline Operations Ground Staff Award. In each of those awards the situation (indistinct) there were various pre-reform and NAPSA’s which provided between 26 and 39 weeks, sorry 52 weeks of entitlements. We sought in our orders for 39 weeks across the four awards as entitlement which is a standard which we seek based on not only the award instruments but also workers compensation legislation. We support the ACTU’s submissions in relation to programing. In terms of the timeline that we would expect would be required for our submissions, four weeks would be adequate for us to provide an outline of submissions and also witness statements and evidence going towards the modern awards objective however our preference would be for possible interim orders to be made in order to allow for between six to eight weeks for us to gather and sort through the available evidence that has (indistinct).

PN2209

In terms of discussions with employers we haven’t had discussions about these particular applications however there are unregistered agreements which the union has (indistinct) decades ago about accident make up pay both in Victoria and New South Wales which are relevant to the proceedings. Discussions about what should be accident pay as an entitlement under the system has been an ongoing point of discussion between the union and the employers over a number of decades. In terms of the specific (indistinct) I just note that we haven’t used the words which existed in the previous awards. We drafted it based upon the words which existed in the Black Coal Mining Award that the substantive petitions are essentially the same aside from the quantum which we seek which is 39 weeks.

PN2210

THE SENIOR DEPUTY PRESIDENT: I’m assuming you’re just talking about accident pay. Is that right?

PN2211

MR NYUGEN: Yes, your honour. Sorry, this is only in relation to accident pay. We do support the CFMEU’s application in relation to district allowances but I understand from today’s proceedings Mr Maxwell is considering their position (indistinct) considering their position on the district allowances.

PN2212

THE SENIOR DEPUTY PRESIDENT: You’re applications don’t relate to district allowances, do they?

PN2213

MR NYUGEN: No, they don’t your honour.

PN2214

THE SENIOR DEPUTY PRESIDENT: Sorry, what was the answer?

PN2215

MR NYUGEN: No, they don’t. They only relate to accident pay.

PN2216

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. I think we probably need to take a break for a short while. We will take the luncheon adjournment now and we will adjourn until quarter past two.

<LUNCHEON ADJOURNMENT [1.20PM]
<RESUMED [2.25PM]

PN2217

THE SENIOR DEPUTY PRESIDENT: Mr Ward.

PN2218

MR WARD: I appreciate that we’re here today to deal purely with programing. I will confine my submissions to issues related to programing. I might make take some little time and I apologise for that. We’re met now with two fresh applications from the ACTU as we read it. One of those applications concerns the variation of various instruments to create entitlements to take home pay orders. I understand if that’s kind of back burner and I won’t go to that application. The more relevant application is what has been described as an application for interim relief or an interim order. I’m going to come back to that in some detail in a little while. In addition to that we’re now faced by a series of applications from the various unions, the majority of those were filed on 29 and 30 September which is not long ago.

PN2219

On our initial observations of them some of them are quite different in form. Wether not they’re accident pay or district allowances and without being critical probably given the haste they were put on, the grounds and reasons supporting are not particularly detailed so from the respondent’s perspective it is a little difficult to appreciate the totality of the case we have to meet. Every union and the ACTU has pressed this commission for expedition and in fact my friend from the ACTU said this, there’s an enormous desire for expedition. I’m going to spend some little time as to whether or not the unions are, in our respectful submission, entitled to expedition. Before I do so can I respond to two points made by the unions today? The first one is this and I say this for caution. There’s been a number of assertions made by unions today about award coverage, clauses, what happens in industries. I don’t go to that today, I simply say this that we reserve our position from another day on those matters.

PN2220

All of the unions, I think, bar one talked about the fact that they intend to bring a case based on what has been described as the critical mass principle and I want to say this to the commission so there’s no misunderstanding. We say that is an entirely erroneous principle to ground the claims for the purposes of the four yearly review. It may very well have been an appropriate device to smash hundreds of awards together in 2008 but as the preliminary issues decision from the full bench said in the four year review what is at issue in this review is whether or not the award as proposed to be varied meets the modern awards objective in section 134.

PN2221

I just want the bench to understand that from our perspective this is not as simple as saying did 51 per cent of us have this before, we should keep it. We say that the proper jurisdictional basis for the review is 134 and I just want to make sure that that’s clear. Can I turn to expedition? At the end of the day this commission’s exercise of powers and the performance of its functions is conditioned mandatorily by section 577 of the Act and without taking the commission to it because it’s familiar with it, the cornerstone of that is the commission exercising its powers and functions fairly and justly. In our submission for the unions to now seek expedition they must have clean hands and they certainly couldn’t be allowed to have sat on those hands and now plead for expedition.

PN2222

We are particularly concerned that those I represent could now be prejudiced by being forced into a tail spin of frantic activity largely with respect because of their delinquency. I want to make that out if I can and I apologise, if the commission could indulge me. I just want to take the commission through some material and I will do this as quickly as I can. The unions have been on notice that 31 December 2015 was coming from late 2008.

PN2223

THE SENIOR DEPUTY PRESIDENT: 2014.

PN2224

MR WARD: Sorry, thank you your honour. It’s been a long three days.

PN2225

THE SENIOR DEPUTY PRESIDENT: We’re all on notice.

PN2226

MR WARD: I only had a small moment to enjoy my victory before we had to deal with this. They’ve been on notice since 2008 and I don’t know how many hundreds of days or thousands of days that is but it’s an exceedingly long time. They had the transitional review and let us not say that people didn’t bring substantive cases in the transitional review because your honour presiding member sat over one of the largest cases in that review which was the apprenticeship case. There were other substantive cases, the restaurants penalty rates case is a good example. 2012 transitional review, if it was that serious an issue could have been used to ventilate some of these issues.

PN2227

What we then find is that there has been, in our respectful submission, a degree of tardiness on my opponent’s part all the way through the four yearly review and I notice that your honour the presiding member didn’t want anything handed up. I’m just going to refer to some statements and some materials that are on the record in the commission. I have copies if the commission want them but I also respect that the commission might not. I’m in the commission’s hands about that. On 15 November - - -

PN2228

THE SENIOR DEPUTY PRESIDENT: Yes, I’m not against you handing things up but we’re still in programing proceedings.

PN2229

MR WARD: I’ve got that, your honour. It’s not evidence, it’s relevant to the question of expedition.

PN2230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2231

MR WARD: On 15 November 2013 his honour the President effectively initiated the four yearly review by the issuing of a draft statement. At paragraph four of that statement his honour said this:

PN2232

In early 2014 the full bench of the commission will convene a conference then hold hearings to identify any legislative issues and determine the scope of the review. At the conference parties may also identify any claims they wish to pursue which effect multiple or all modern awards.

PN2233

I will leave the quote there. There was an invitation on 15 November to make claims, the nature of which have been made on 29 or 30 September in these proceedings. On 24 December 2013 his honour the President then issued a formal statement and paragraph 4 of that statement his honour said this in relation to the forming of a conference:

PN2234

At this conference interested parties should identify any variations they wish to pursue which affect multiple or all modern awards.

PN2235

His honour issued a further invitation. It was then on 24 January 2014 an issues paper issued by his honour the President and at paragraph 25 of that issues paper his honour said this:

PN2236

Conferences being convened by the commission on Wednesday 5 February 2014. This conference will commence the initial stage of the review. Any interested parties invited to make a submission by the conference. These submissions will be due on Monday, 3 February 2014. In particular submissions should identify the following. Any claims they wish to pursue which affect multiple or all modern awards.

PN2237

There’s another invitation in the issues paper to file the sorts of applications that are before you now. There was then a proceeding on 5 February which Mr Clarke appeared in for the ACTU. In transcript for those proceedings at paragraph 131 in relation to a question from his honour Mr Clarke says this:

PN2238

In relation to matters that you’ve raised we support the segmenting, if you like or the pushing away the process in relation to common issues until a later stage. We think that that’s going to be a more effective use of the commission’s time to give people the opportunity to refine it a little maybe perhaps in discussion amongst themselves before we get to that point.

PN2239

In February the ACTU is saying there’s no hurry, we can push these thing away. The ACTU then filed, arising from that, a submission on 3 February which outlined what they understood to be common claims or claims that affected multiple awards. That submission is dated 3 February 2014 and it identifies at appendix 1 accident pay in these terms:

PN2240

A claim is proposed to remove the sunset provisions contained in accident pay provisions in relevant modern awards to ensure the continued application of accident pay.

PN2241

Accident pay is now clearly in the minds of the ACTU and its affiliates but in a particular form. In that paper the ACTU also said this about sun setting allowances at appendix 7:

PN2242

The proposed claim would involve varying relevant modern awards to continue the application of the various district and regional allowances by removing sunset provisions.

PN2243

The commission then on 6 February issued a further statement and his honour the President said at paragraph 5:

PN2244

The common issues including issues associated with the coverage of modern awards would be the subject of a conference to be convened by the President on 26 February.

PN2245

That’s in direct response to the material filed by the ACTU on the 3^rd and material filed by other parties. On 24 February his honour issues a further issues paper and in that issues paper at pages four and five it identifies very clearly that the ACTU are advancing a claim on accident pay and sun setting allowances. On 24 February Mr Clarke again communicated to his honour Ross J about these common issues and again confirms that they’re running claims related to transitional and sun setting provisions and accident pay sunset provisions. Nothing else.

PN2246

There are then proceedings before his honour on 26 February which Mr Clarke is in again and at paragraph 288 Mr Clarke in an exchange with the President says this:

PN2247

Yes, thank you your honour. We do have a difficulty or possibly an issue with what is encapsulated within the way those common issues are described. There is something that arises in relation to accident pay, work flexibility and casual employment.

PN2248

His honour says this:

PN2249

There might be a range of matters raised under those headings. I’m not limiting based on what has been put today but a number of submissions like casual employment are put in a very general level and it is not clear what exactly is sought or how broadly. Accident pay, well that really follows from the observations made by the AIRC about there being some sort of genuine view to see if there is some common theme. Mr Clarke in relation to that last matter accident pay we acknowledge what has been recited about the full bench position about an opportunity to present itself prior to December to look at some kind of national standard. For the sake of clarity there isn’t a common desire amongst the ACTU affiliates to establish a national standard at this time.

PN2250

That’s Mr Clarke. We then find ourselves at 7 March. His honour the President issues a draft statement of directions and that draft statement of directions clearly sets out at paragraph 8 that there is to be a hearing and consideration of “transitional sun setting provisions relating to accident pay, redundancy and district allowances” and there’s a note other transitional or sunset provisions in modern awards will be dealt with in the award view stage. Nobody cavils with that in those proceedings. We then have his honour the President issue a further statement and directions on 17 March and that statement and directions again confirms that in relation to accident pay and district allowances at page three what is being debated are sun setting provisions.

PN2251

The commission then issue, I won’t be much longer, the commission then issue on 2 June a background paper posing various questions to the parties to be answered as part of the, I think, the preliminary process around the legislation and what should happen. At paragraph 14 of that paper of 2 June 2014 it says this:

PN2252

The commission request the parties consider the following in relation to accident pay provisions. 1. What is proposed by the parties in relation to the accident pay provisions in modern awards, how many awards do the proposals relate to, how would the parties like to proceed.

PN2253

A similar set of questions relate to the other matter of district allowances. There’s then a statement issued by the commission on 4 June that seeks various responses in relation to that background paper from the parties. The ACTU in response file on 1 July their answer to the questions and without going into them in detail, on the second and third page of that response to the commission they make it very clear that their claims are limited to the claims this commission ruled on this morning.

PN2254

That is essentially the historical circumstance this commission finds itself in now. That is, the parties should have known for years what was going to happen with these provisions. There has been invitation upon invitation upon invitation all the way through from the beginning of the four yearly review process to put claims on relevant to these matters. The ACTU on every occasion has made it abundantly clear that the claims its going to run are the ones decided this morning. We don’t say those things to say there is a bar against you hearing the union’s claim. We don’t say that. What we say is this, it is rich to now come along and say there is enormous desire for expedition. They have sat on their hands, informed us and this tribunal that they intend to travel in a particular direction and it would appear, and I say this with the utmost respect, only when they appear to think that they’ve got a bad case the affiliates rush applications on on 29 and 30 September and come before you and plead for expedition.

PN2255

Those I represent, with respect, should not be prejudiced as to a timetable because of their delinquency. There is no doubt from this morning – I withdraw that. There is no doubt from what the union said before lunch that the scope and nature of the case to be considered here is substantial. That’s not rhetoric, it’s not an entertainment submission, it’s a fact. Your honour, the presiding member oversaw the apprenticeship case in the 2012 review. On any reasonable estimate the sorts of evidentiary cases to be presented in these matters rivals that case with ease. Those I represent intend to bring a substantial case. They will argue the policy position of accident pay and district allowances. There will be expert evidence adduced as well as broader evidence and with respect that is not something that can be hobbled together quickly before Christmas.

PN2256

This commission over the last three or four days has issued dates for stage one, hearings, conferences and the like and my recollection from looking at my diary this morning alone it’s pretty well taken up to 15 December and I suspect Mr Ferguson is possibly in a worse position. All we would say to the bench is this, is that commission needs to be with respect realistic about programing for substantive hearings and to ensure that we have an appropriate amount of time to prepare a case which on any realistic estimate is going to require at least eight to 12 weeks for us. Even though people are going to criticise me for saying that, with respect, they’re not entitled to. They’re not entitled to.

PN2257

Can I turn to the ACTU claim and I will say this with some care. The ACTU have now filed a claim they characterise as a claim for interim relief. We’re going to oppose that claim but in programing terms we seek to have an opportunity to argue that it should be summarily dismissed before we get into any substantive argument about it. I will simply explain the general grounds for that application now. When you look at the way it’s framed it is not, in our respectful submission, properly framed as relief in a form of an interim decision relevant to the actual substantive relief sought by the unions. What it actually asks for is this, it asks this commission in a slightly different way to re-hear the case that was decided this morning.

PN2258

Instead of saying delete the sunset date the new application says pretend it’s not there. If you had a benefit before 31 December 2014 you simply keep it and with respect that is essentially in terms of outcome the exact case we’ve just argued. We shouldn’t be required, with respect, to argue that case twice for any reason. If the bench is mindful to programme that claim we would ask for at least half a day to argue that it should be summarily dismissed. In our view it would be respectfully unconscionable to require us to meet that case having just met it. That would be fundamentally at odds with section 577 of the Act.

PN2259

I don’t raise that submission as high as to say there’s an estoppel argument although I understand some others on my left might. I don’t raise it that highly. We would probably be available to run that preliminary argument probably in the next three weeks. If the commission pleases, from a programing perspective for us in addition to the submissions we’ve already made, we think it would be particularly useful if the unions could better particularise their claims so we had a better understanding of what they’re really about and more importantly the grounds upon which they’re actually advanced because at the moment they effectively say they’re fair, they meet section 134 and we used to have these. With respect, that’s fairly Spartan.

PN2260

As to conferences we will be available and those I represent will ensure they have officers available to participate in any conferences this commission believe are desirable and I would think that this is one occasion it would be highly desirable to have some conferences between the parties. If the commission pleases, those are our submissions.

PN2261

THE SENIOR DEPUTY PRESIDENT: Those conferences, if we were to have them would be after the hearing of the interim order application, wouldn’t’ it?

PN2262

MR WARD: I’m a little more relaxed about that your honour. The dialogue I would have thought is not about – the interim issue is almost a legal argument. I would have thought, because I don’t see anybody agreeing to that, with respect, given the decision this morning. I don’t see anybody consenting to the interim arrangement. I think that the conferences could occur when its convenient for everybody for them to occur to talk about substantive issues. I’m more relaxed about that to be honest, your honour. The one thing I don’t know is this, and I say this without wishing to in any sense sound impertinent, it is possible that some of the things arising from the bench’s reasoning from its decision this morning might also be important.

PN2263

Certainly if we have to re-argue the interim relief question in full it seems to us we’re going to be simply re-arguing the case we’ve just argued and therefore that reasoning might be highly helpful. On its current terms the interim relief claim raises all the 154, 139 arguments that you’ve just ruled on. If the commission pleases.

PN2264

MR FERGUSON: If the commission pleases. The Australian Industry Group have filed some relatively short submissions in relation to these proceedings. They largely remain relevant notwithstanding the fact that the decision has been issued this morning. I’m conscious that we’re in programing and I don’t want to make substantive arguments other than to obviously reiterate the point that from our view we advance the proposition that this commission as part of this review should not entertain the new proposals from the unions in those submissions. I don’t wish to say - - -

PN2265

THE SENIOR DEPUTY PRESIDENT: If the proceedings that we’re embarking upon are in some respects different from the proceedings which we concluded this morning and the proceedings relate to a whole range of applications that have been referred to this bench.

PN2266

MR FERGUSON: Yes, obviously this bench is conducting the review for the relevant awards and as part of that parties have put forward claims which we understand has been referred to this bench. Now, we’ve raised various arguments about why we say in effect what the unions have tried to do is mount something which should have been advanced as a common claim in the numerous conferences that have taken place in relation to the timetabling and conduct of this review and it’s extremely unfair to now give the unions an opportunity to effectively have a second bite of the cherry. They’ve run the case that they’ve wanted to and without wanting to go into great detail at a point in time while those proceedings were being conducted they’ve decided that they will mount a slightly different case, nonetheless with overlapping issues.

PN2267

We say it’s unfair that employers have to repeatedly be put to the task of defending these sorts of issues and I don’t want to make the argument in detail about why this commission shouldn’t entertain these claims as part of the review and why we say that’s unfair to do so. What we suggest is in terms of timetabling. There should be given an opportunity to the Australian Industry Group to develop our argument as to why at a threshold level and from a threshold perspective we could advance that the tribunal should reject the claims or refuse to entertain them as part of the review. That could be accommodated within any timetabling. The other reason I hesitate to develop that argument further - - -

PN2268

THE SENIOR DEPUTY PRESIDENT: Sorry, are you seeking to put that argument should we programme a hearing for the purpose of considering the interim order?

PN2269

MR FERGUSON: No, we’ve put that firstly in relation to the union’s claims which were the matters we understood that these proceedings were originally scheduled to deal with. We’ve since received the new claim from that ACTU which was, as I recall, after the timetabling of these proceedings and as we say in our submissions we’ve not fully considered that new proposal from the ACTU. As the bench would understand we’ve been embroiled in the case we’ve just concluded. What we say is that any timetabling of the unions’ claims, the specific individual unions should involve at an early stage an opportunity for us to develop our arguments that they should not be entertained in any serious way.

PN2270

The difficulty with developing that argument today is as I understand it we haven’t even seen all of the applications. I think there are still the unions proposing to advance applications and certain there’s a request to parties generally be given opportunity to put on any other applications. We still don’t fully know the case the parties are proposing in a serious way although we know some of the claims. That is the first point we would say that any sort of timetabling should deal with those sorts of issues. The other point we make is that we anticipate that this will be a very significant claim. It seems to be that the unions are advancing for a significant expansion of entitlements in relation to accident pay at the very least in a raft of industries.

PN2271

We anticipate that we are going to have to run a very significant case in response in order to properly represent the members. We are anxious about timetables and we’re anxious that we’re going to be afforded appropriate opportunity to respond and we’re conscious that many of the unions seems to have been working on their cases for some time yet still require a further period of time to prepare. We say in that sense all that can sensibly be done at this point in time is set a direction for the filing of all of the claims to be made by the parties. Once we then have that we will know the parameters of the case at least to some extent. The full extent of which will no doubt be dependent on how far they are particularised but that should be the first step that this bench takes, is simply issue directions affording a short window for people to put their claims on.

PN2272

THE SENIOR DEPUTY PRESIDENT: To put their claims not to put submissions or evidence.

PN2273

MR FERGUSON: No, just so that we know what the actual claims are. Then we can decide the full parameters of the case. We appreciate some of the organisations such as myself act for many industries so there are still potentially large groups of members that might be affected by claims yet to be received so we think that should be the first step. Then potentially a further mention of the matters to work out a proper course after that has occurred. I know the bench has raised the issue of conferencing and it strikes me that that might be a sensible course of action in relation to these issues but it seems that that’s likely to be much more useful once we have the full reasons for the decision that the bench has just made today.

PN2274

If parties are going to be meaningfully make concessions they will probably want to understand precisely what transpired before anything productive will be achieved. We are happy to participate in discussions and we think that’s sensible but probably not that productive until we know the reasons for the decision. The other - - -

PN2275

THE SENIOR DEPUTY PRESIDENT: Seeing that there wouldn’t be much logic if we’re dealing with a host of applications in relation to different awards to combine the consideration of accident pay with district allowance would there?

PN2276

MR FERGUSON: I think it adds an incredible level of complexity to it if you combine the two. I think accident pay is itself going to be a very significant case. I don’t know that we gain much from dealing with what are really quite distinct issues apart from perhaps convenience in terms of 154 arguments that might develop. As we’ve seen over the last few days there are subtleties there that mean they won’t be the same arguments in relation to district allowances. We wouldn’t be opposed to them being handled as separate cases. I’m also conscious that, and I don’t know the precise nature of the case the unions intend to mount but the district allowances case could be very significant as well in its own right.

PN2277

THE SENIOR DEPUTY PRESIDENT: The district allowances case one would think, I mean the current provisions in the awards on district allowances would seem, and this is according to the arguments and submissions that were presented, would seem almost unquestionably to fall within the gamut of section 154 and into that category of provisions because of the way they’re expressed in the transitional provisions that clearly cannot operate for longer than five years. I mean, if that be the case there’s that sort of mountain to climb in relation to those provisions and the other mountain to climb is that if the claim is to extend to remote or whatever areas in New South Wales and Queensland, what currently applies in the Northern Territory and Western Australia it just seems to be another mountain that you would have to climb in terms of trying to pursue that sort of a case.

PN2278

MR FERGUSON: I think that’s right. Your comments in relation to the way the allowances are framed are very much correct. They squarely fall foul of 154 in - - -

PN2279

THE SENIOR DEPUTY PRESIDENT: As they’re currently - - -

PN2280

MR FERGUSON: As they’re currently - - -

PN2281

THE SENIOR DEPUTY PRESIDENT: But if you were to rejig them so that they applied to, and I don’t know how you would do it, at places that are X number of kilometres from this or that. I mean, it might be easier to satisfy in Queensland even in Western Australia, I don’t know.

PN2282

MR FERGUSON: We don’t either but I think there will be an element of the case that is probably goes to the effect that you shouldn’t try and circumvent the operation of 154 to (indistinct) drafting but there will be, regardless of that, one would expect a very significant evidentiary case mounted by the unions if they’re going to say that there are specific circumstances in all of these states that warrant this. I don’t know but I would expect that would be the case also. So there might be some merit in dividing it in two but until we’ve seen all of the claims I don’t know precisely what’s anticipated.

PN2283

THE SENIOR DEPUTY PRESIDENT: Should we wait for further claims or should we proceed on the – I mean - - -

PN2284

MR FERGUSON: I’m just conscious that we’ve had timetables for setting claims before these proceedings. I mean, we’ve had and I’ve been through a great many of the proceedings in relation to timetabling of the review generally and we’ve had endless directions for dealing with matters and then we still get claims from the parties. It seems that we need to draw a line at some point and if parties are saying they propose claims I just don’t want to be met with a new claim further down the line that somebody tries to drag in after they’ve seen some of our arguments in response. I mean, we do need to be clear that there needs to be a point at which parties need to mount whatever their claims are and I’m using claims instead of applications because as we know this review isn’t really being dealt with by way of application. I think at some point we need to say enough is enough and unless the bench is going to take the view that what’s on now is all that’s going to be considered, a sensible option would be to issue a direction especially given that this is a review that’s open to parties at large.

PN2285

It may be that the ACTU say that they only know or that there will only be a few affiliates that are likely to bring claims but, of course, they can’t speak for everyone and other parties may well mount a claim as well. We think a short timeframe, it can’t be the parties should be given a long window now. We’re well and truly almost near the end of the year in which the review was to commence but a short timeframe seems sensible. Then we could work out where we land in terms of what’s before us and a possible way forward. The other issue - - -

PN2286

THE SENIOR DEPUTY PRESIDENT: The other consideration and just moving on from district allowances to accident pay is that you heard there were a number of questions put to Mr Clarke in particular about what categories you might put various claims into. I mean, some of the categories were those which there is a, as it were, a national standard argument in the award and the argument is to continue that national standard and another category is well, there might be a national standard but we want to improve on it and maybe extend it to a few people who wouldn’t be covered by it under the transitional arrangements and another category might be we’ve got our toe in the door and we’d like to get a little bit more of a foot through the door and extend it to everybody.

PN2287

It would seem to me, at least at first blush, that unless there were some sort of sensible categories the considerations really go down to an award by award consideration of these sort of claims that actually might not be appropriate for the full bench to deal with and they would be better dealt with on an award by award basis within the relevant staging of the four yearly review.

PN2288

MR FERGUSON: That occurred to me as well but the difficulty is in part, I probably haven’t given though to how neatly all of the different claims do fit into those discrete categories but the other issue would be it would surprise me as these things developed there wasn’t some commonality of arguments that group in relation to these issues in terms of - - -

PN2289

THE SENIOR DEPUTY PRESIDENT: They might be in relation to, you know, the commonality would come out that sort of putting them into particular groups although the CFMEU would probably argue they’ve got a special case.

PN2290

MR FERGUSON: It may be that there’s some merit the parties are trying to work out whether or not before another mention they can be properly categorised into different groups and that could colour the way the matter develops.

PN2291

THE SENIOR DEPUTY PRESIDENT: Anyway I’m just thinking aloud. Conferences might be - - -

PN2292

MR FERGUSON: Conferences might help.

PN2293

THE SENIOR DEPUTY PRESIDENT: I think Mr Ward and you also in your written submission go through some of the conferences that have been held, it wouldn’t be the first conference that’s been held. Maybe we shouldn’t have such high hopes for being able to sort things out.

PN2294

MR FERGUSON: To be fair I don’t know that the conferences have been, if I can describe, as conciliatory. I mean, it’s been timetabling type conferences rather than a detailed explanation or bargaining type processes but I don’t want to categorise them as that either but it might be different if they’re more in the nature of conciliation. Some of the conferences have involved a great many parties dealing with all of the awards and many issues.

PN2295

THE SENIOR DEPUTY PRESIDENT: Video conference facilities?

PN2296

MR FERGUSON: I do wonder how that would be in this sort of conferencing and they have been dealt with in that way which is, of course, convenient for parties where there’s a great many parties and sensible in that regard but perhaps not much utility in that sort of conferencing. I just, it may be that those issues could be explored in a conference and I think that would be sensible but again probably best explored after we have the reasons for the full bench’s decision this morning. The other issue I’m conscious of is given what I anticipate to be the volume or the size or magnitude of these proceedings is the impact it might have on the remainder of the timetabling for the review. To date the bench has been very mindful in timetabling the review, the bench is headed by the President in terms of coordinating all of the common issues with the conduct of the review of each stage of the award so undue pressure isn’t put on particular parties which means that they aren’t able to properly deal with those cases and obviously, of course, that’s a particularly relevant consideration for ourselves given that we have involvement in a very vast number of awards.

PN2297

We’re just concerned, I’m echoing comments of Mr Ward here to some extent, about the ability to deal with what is a very new or a new claim, a new case at the same time as dealing with the workload that’s been set in relation to the border review. It seems inconceivable that we would have to take more on this year to be frank in terms of the case. We do have a full diary already and it doesn’t seem clear why, what in effect is being put as a common claim but not characterised as one should just push to the front of the queue. I mean, there’s a list of timetabling of initial common claims and it doesn’t seem apparent to me why this issue should suddenly get expedited rather than heard after all of the other common claims that are currently being timetabled in the context of the review.

PN2298

The other way, of course, to deal with it is if we identify that there wasn’t a high degree of commonality the individual award claims could just be dealt with at least perhaps by this bench but at the time that the initial award or the particular award is going to be dealt with in the existing stages, you wouldn’t simply move one award from one stage to another just because a particular party is requesting it but rather leave the award specific issues to be dealt with in the timetable that’s already been set for the review. That seems sensible. It doesn’t seem to me that it’s appropriate just to cherry pick certain cases and bring them forward. There doesn’t seem to be a justification for that.

PN2299

THE COMMISSIONER: Mr Ferguson, isn’t this a little bit different because employees are already receiving benefits that could come to an end on 31 December whereas the other award matters don’t have such a situation.

PN2300

MR FERGUSON: I don’t think it is different because at the moment we have an award arrangement in relation to these issues. There was a transitional provision governing the operation of some of these entitlements and it’s been governing it for now five years. Parties have known that this was coming to an end. Employers have been expecting it to come to an end and employees won’t be shocked either. It’s been there all along. Of course, we’ve had claims that we wanted agitated in the common claims proceedings that we’ve thought were very important to employers but we’ve had to just deal with them as they’ve come. We don’t see why it should be different just because it’s an employee as opposed to an employer claim.

PN2301

The full bench when they made the awards decided that these terms were appropriate and we don’t say they should, there’s any reason to assume that that’s inappropriate and we also just had a case essentially about whether or not those provisions should be removed so that the entitlement continues. I don’t have the reasons for decision but the full bench has already decided that in effect that these entitlements should cease, as I understand it. We don’t see why there’s any need for urgency in relation to these issues. Dealing - - -

PN2302

THE COMMISSIONER: It might come as a shock to the employee if you’re earning $15,000 or $1500.

PN2303

MR FERGUSON: I assume it won’t come as a shock, it’s been there for five years but I understand the point. We’re not oblivious to that, of course, but these things will all have to be balanced and there’s been a multitude of opportunities for the unions to address the timetabling of common claims and to say that they wanted to have these issues dealt with earlier in the proceedings, it just seems a bit rough to say to the employers well, the unions have left it late but you have to mount a case nonetheless even if you’re prejudiced by that and you’re unable to respond.

PN2304

THE SENIOR DEPUTY PRESIDENT: Saving something happening in terms of some interim orders being made on what the unions have put to us, even if we were to timetable it according to what they’ve put, that is one month for them to put in their submissions and evidence, we were to give the employers one month you would get into the Christmas January holiday period et cetera, there’s no way there would be a decision before 31 December this year.

PN2305

MR FERGUSON: Putting aside the issues about interim orders for a moment, given the timetable, that seems right and of course some of the unions as I understand it, and I may be wrong on this, have said that they’ve been working on their material for some time. Some have it ready and some still need more time. I’m not sure that the employers could even get it on, our material on in a month but we will have to see the material before we could address you properly on how much time we need to respond. You’re right, there seems an inevitability that the status quo will remain and that these claims will or the entitlements as they exist currently will cease to be payable at the end of this year, unless something arises from the proposal relating to interim orders or the other ACTU propels.

PN2306

As I said in relation to that issue, we haven’t fully thought through what the proper response to that will be but it does seem rather apparent that the interim orders proposal seems to be a re-agitation in a slightly different way of the claim of the case we’ve just run. It’s part of our concern that we shouldn’t just have to be repeatedly answering this case being put a different way in this review. We think it’s - - -

PN2307

THE SENIOR DEPUTY PRESIDENT: You can just rely on your previous submissions if you need to.

PN2308

MR FERGUSON: Yes, but the issue might be their case might get better. Everyone was given time to put on their material. You run your case, you run your case. You shouldn’t get to have a second crack at it.

PN2309

THE SENIOR DEPUTY PRESIDENT: It’s going to be a slightly different case one would imagine. An interim order is distinct from - - -

PN2310

MR FERGUSON: Perhaps. It seems to just be worded differently. I understand your proposition.

PN2311

THE SENIOR DEPUTY PRESIDENT: In the event, I mean, you’ve gone to section 154 in great detail. You wouldn’t need to repeat all your submissions. We’ve heard them - - -

PN2312

MR FERGUSON: It would be difficult to think that a full bench will come to a different conclusion so soon after they’ve come to the first one but I understand.

PN2313

THE SENIOR DEPUTY PRESIDENT: Difficult things are sometimes achieved.

PN2314

MR FERGUSON: Sometimes, your honour. In that case we would need to give some thought to how that would timetabled too. I don’t think it would be appropriate to pluck a date and all turn up. That would need to be thought through as well. As I said, I had understood that these proceedings have been convened for the purpose of dealing with that new claim and perhaps another date should be set for that.

PN2315

THE SENIOR DEPUTY PRESIDENT: If we have another programing session that will take up - - -

PN2316

MR FERGUSON: At the same time.

PN2317

THE SENIOR DEPUTY PRESIDENT: - - - quite a long period too, won’t it.

PN2318

MR FERGUSON: That is the other alarming prospect. Perhaps these people don’t have to explain all their claims because it may be the happy event that there aren’t any new ones. That might expedite things. Thank you your honour, nothing further.

PN2319

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Adler?

PN2320

MS ADLER: Thank you, your honour. I’m happy to just stay here if that’s convenient? First of all I would just express our support for the oral submissions made by (indistinct) this afternoon put by Mr Ward. I would also just for completeness refer to the correspondence HIA made dated 1 October and I know that was the subject of proceedings of 15 October but in light of the discussion around programing I feel it’s relevant we refer to (indistinct) that correspondence in that we expressed our strong opposition or our strong concern with the way that these claims by the affiliates specifically for our purposes of (indistinct) prolong our application for this late stage and in saying that I would endorse the comments made by Mr Ward as he took you through the history of the number of opportunities given to all union parties, not just the ACTU indicate that there would be claims made in relation to these transitional provisions and to my knowledge the CFMEU had not, until the filing of those claims on 29 and 30 September, made any indication of making any application in relation to accident pay or district allowances to my knowledge.

PN2321

Also relevant in that 1 October correspondence is a matter which your honour Boulton J just raised about how to deal with these matters and in that correspondence you did note that from our perspective, at least, it could be dealt with during the award stage and we would continue to submit that as a position on these things. I would also just like to address some matters raised by Mr Maxwell earlier today, first of all in relation to district allowances. There has been a draft determination filed on 30 September. I am unclear as to the status of that draft determination and would, if there is no an intention to pursue it that it be formally withdrawn.

PN2322

THE SENIOR DEPUTY PRESIDENT: Sorry, a draft determination?

PN2323

MS ADLER: There was a draft determination that has been filed in relation to district allowances by the CFMEU dated 30 September. I did recall that Mr Maxwell perhaps foreshadowed some claim in relation to district allowances in 2015 which was also somewhat alarming to hear.

PN2324

THE SENIOR DEPUTY PRESIDENT: Maybe, even though you’re sitting at the opposite ends of the table you could just have some discussion about what the position is.

PN2325

MS ADLER: I’m happy to do that, your honour but I’ve not heard anything from my colleague as to the status of that off line and as I said we would request that if it isn’t intended to be pursued that it be formally withdrawn. In relation to the accident pay claim which we understand is being pursued we would again endorse the comments made by Mr Ward in relation to the grounds on which they seek to pursue that claim in relation to this critical mass principle. We say, you know, the proper jurisdictional basis of these claims is under the Fair Work Act under section 134 and while the historical content is relevant and can be a factor taking into consideration by the bench it’s definitely not determinative of a claim and in that respect we would say that we would need to bring substantial material in response to a claim of that nature, particularly in light of the fact that there were some pre-reform awards that did not contain an accident pay provision.

PN2326

As such, the entitlement is being extended to employers across the country and we would seek to bring a substantive case against such an extension of those provisions and they should be taken into consideration when timetabling of these matters is considered. There’s been some discussion around conferences and their utility. From our perspective while we’re not opposed to having a conference, given the nature of the claim and as I said the potential application broader than was in the pre-modern awards I don’t know how useful those conferences would be other than to perhaps clarify what the claims are in receiving any, sort of, consent position out of those conferences. As I said, from HIA’s perspective anyway in relation to the Building Construction General On Site Award and the Joinery Building Trades Award, not opposed to a conference but don’t see much utility arising out of such conferences.

PN2327

The final matter that I just would address is the specific timeframe put by Mr Maxwell and as your honour has just raised, the likelihood of having anything heard before the end of the year would seem unlikely and we would say would be unfair on employer parties to have to respond to what we would see as a substantive case in such sort timeframes. Unless the bench has any questions, that’s all I see to say. Thank you.

PN2328

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Kusuma?

PN2329

MS KUSUMA: I will make this short, your honours. Essentially we support the comments and concerns espoused earlier by my colleagues from the employer group. We also endorse (indistinct) recommendation in how to approach ACTU’s proposal with regard to the interim order hearing because we think that the re-hearing that matter again would extend state based differences beyond what’s been contemplated in section 154 but I won’t go too much into that argument right now. With regards to programing for the unions, the individual unions applications, our specific interest lies with the ADU’s application to the Horticulture Award and the Wine Industry Award, similar to what has been said by the employer group we anticipate that this will be a significant and extensive substantive case therefore we will require at least eight weeks to be able to properly give response to the unions claim considering that the AWU earlier mentioned that they will need four weeks which means then that will bring us to early December and then that will take us through the Christmas and end of year period.

PN2330

It will be very difficult for our purpose to get proper direction during that period thus we request for an eight-week period. We also do not oppose for the claims being dealt in the time allocated for individual awards, for the Horticultural Award and the Wine Industry award they are currently being allocated to (indistinct).

PN2331

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN2332

MS KUSUMA: To stage three of the award modernisation. That’s all my submissions on this unless there are further questions. Thank you.

PN2333

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Clarke?

PN2334

MR CLARKE: Thank you, your honour. I don’t see how - - -

PN2335

THE SENIOR DEPUTY PRESIDENT: How long would you need to in terms of the case for the interim order?

PN2336

THE SENIOR DEPUTY PRESIDENT: Sorry, to hear the case?

PN2337

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2338

MR CLARKE: We would anticipate we would do the case in a day but it would be a full day.

PN2339

THE SENIOR DEPUTY PRESIDENT: That’s everything?

PN2340

MR CLARKE: Yes. That’s the two interim applications.

PN2341

THE SENIOR DEPUTY PRESIDENT: Including the responses and all the submissions you made?

PN2342

MR CLARKE: Yes.

PN2343

THE SENIOR DEPUTY PRESIDENT: I see. You’re seeking one day for that case to be programmed?

PN2344

MR CLARKE: Yes.

PN2345

THE SENIOR DEPUTY PRESIDENT: You’re seeking that that be done as it were before the end of the year.

PN2346

MR CLARKE: Yes, that’s right.

PN2347

THE SENIOR DEPUTY PRESIDENT: Yes. What else do you want to say?

PN2348

MR CLARKE: This proposition that the various accident pay or locality or district or remote allowances claims might be put off into the award by award stage doesn’t answer Mr Ward’s basic objection to the idea of having to run a similar type of case twice. I don’t see how you get around that by forcing everybody to run it five times but if somebody else is able to explain the logic of that I invite them to do so. In relation to programing generally, I submit that there are two very different things at play here. We accept that the commission or any other tribunal shouldn’t programme matters so as to visit an unreasonable prejudice upon someone but it’s a fairly different thing to use the process and programing powers to force a penalty upon someone and that’s effectively the submission that’s being made.

PN2349

The submission being made is not that we are prejudiced and our prejudice should be accommodated, the submission being made is that you, the ACTU and all of the unions should be penalised. We don’t accept that the circumstances arise for any such order or such response in this commission and we would query, given the nature of this tribunal and its objectives, as to whether that type of principle has any role in here whatsoever. If the employers want that to be new rules of the game in this place for ever and a day well, people reap what they sow. People reap what they sow. If we’re going to turn this into a place where we use programing planning to penalise people this is a pretty substantial precedent that we will be setting here.

PN2350

In relation to this proposition about the conduct of the ACTU infecting this process, can I say this. We’ve gone to print by 1 July on the fact that there would be individual applications made, not by us but by unions in relation to this, in relation to these matters. My recollection is that I raised that earlier on transcript before his honour the President. Be that as it may I don’t think it takes mattes very far to be able to do things such as recite what is clearly my response to a proposition being put by his honour without actually reading what the proposition I’m responding to is and say he’s done the wrong thing.

PN2351

Our position in relation to accident pay and in relation to district allowances, the matters that have been before you until today is that we wanted to make, we the ACTU, were making claims about the removal of the sunset date, affiliate unions are making different claims to that. We thought that that was understood and should have been understood if not by July but by earlier than that. In relation to the criticism that we all should have run off somewhere and madly tried to do this at some earlier point, even before the 2014 review, I just remind you that in the award modernisation decision at least in relation to accident pay in 2008 in anticipation that the occasion would arise to consider this in the context of the review set out in the fair work bill, that’s this review. That is this review and that is what we’re doing.

PN2352

Insofar as there are rules of the game, procedural rules of the game in relation to this review they’re not hard and fast. Just whilst you might be able to point to statements and directions and I will remind the bench that only one set of directions was ever issued in relation to this matter and it had liberty to apply, in relation to the way this review is run, most of what has been said about time lines has been said in statements and if one looks at what is said on transcript and his honour said in statements it is made clear, even in relation to the common issues that this is an iterative process, the categories of issues are not closed, things might emerge as we go down the track that we need to look at and you shouldn’t take the view that you’ve got, you have to speak now or forever hold your silence. Matters will arise for determination along the road.

PN2353

This is a matter that has arisen for determination. There is an entitlement that is going to expire. The ACTU has made a claim about that and affiliates are making a claim about what should replace that. The proposition that was put by the ACTU in the written submissions was that there should be a process in the event that these unions applications can’t be determined by the end of the year, there should be a process to determine whether or not there should be any interim arrangement in relation to that and that’s not a controversial proposition, I would have thought.

PN2354

The opportunity wasn’t taken to fully develop the argument in relation to the critical mass argument so I will similarly reserve the position, our position and others may do so as well to respond to that where it’s properly articulated. I think that we stick by what I opened this up with 11 o’clock which is we would still like to see out of today some programing in relation to the substantive matters including a cut-off date in the very near future for people to outline what their claim would be and a date for the determination - - -

PN2355

THE SENIOR DEPUTY PRESIDENT: In regard to programing matters, what specifically are you saying? Should we programme the applications for accident pay separate from the applications in relation to district allowance?

PN2356

MR CLARKE: That’s the position that we - - -

PN2357

THE SENIOR DEPUTY PRESIDENT: In relation to those, should we programme as it were all the applications for accident pay together or should we programme it on an award by award basis?

PN2358

MR CLARKE: The proposition that was alluded to in the submissions in relation to the accident pay applications is that they could be, that they may be programmed on the basis of the categories that emerge in the nature of the applications that are put up and your honour and ourselves have picked up on that there are perhaps groups of applications in that.

PN2359

THE SENIOR DEPUTY PRESIDENT: How would we go about identifying those programing?

PN2360

MR CLARKE: About identifying them or programing?

PN2361

THE SENIOR DEPUTY PRESIDENT: Identifying them and then programing. We would need some sort of a conference or consideration to try and identify different categories, wouldn’t we?

PN2362

MR CLARKE: The proposal that was put to me in relation to the substantive applications by Mr Maxwell which I think has a lot of sense to it is that we could categories them and programme them for conferencing based on those categories, the accident pay applications as a first step. For example, those where the unions involved describe their application as being one of putting into print a national standard which they say they always had could go first, people could identify what group they fall into there and they could have a conference. People who say that they’re producing a hybrid could be in a second group and people who say that they’re inventing something new could be in a third.

PN2363

We can refine that a little bit depending on people’s views but that would be one small step towards getting these on track but a very important step for the reasons in particular identified by Commissioner Bull we would like the opportunity to be heard in relation to our claim and affiliates claims that there should be some interim arrangements to protect people who, by reason of the result in this morning’s proceedings, have got something to lose come 1 January. I didn’t have anything further – sorry, just make sure. Yes, that’s all I wish to say in response.

PN2364

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

PN2365

MR MAXWELL: Your honour, just briefly in terms of first of clarifying the issue with regard to district allowances, what I said previously was that we had filed a draft determination but we had not yet put in an application to vary the award. We did that in line of addressing how the issue of district allowances may be addressed. Our view on district allowances as I stated yesterday is that the 2008 decision in paragraph 83 talked about a review of district allowances and determining a proper basis for calculation. We submit that that is an issue that the commission should do but we believe that the evidence that will be required to deal with that case will be substantial and that is perhaps a matter to be programmed for 2015. That was the basis of what I was saying before. In regard the accident pay, our position is different. We believe we have a special case or an isolated case. It’s only in regard to three awards, specific awards and based on that history and the permissions of the pre-reform (indistinct) it falls into a discrete category. We don’t revile from the fact that we would need to run a merits case in regard to that and we are prepared to do so.

PN2366

Having said that, our argument is that our application should proceed. We hear the arguments about people saying that should then wait until the award stage. If we do that then our members and the employees covered by those awards that cover haven’t actually been paid entitlements would be prejudiced because that would cut off from 1 January or 31 December 2014 and we believe it is not right to leave those people without that accident pay protection until the matter can be heard in the stage four awards. I find it a bit disingenuous of the MBA to come here and say that the CFMEU’s claims should be dealt with at some later stage when their application in regard to the two year apprenticeships in WA, although it was raised on 29 August will be heard by a full bench on 20 November.

PN2367

MR WARD: I didn’t say that.

PN2368

MR MAXWELL: You did say that.

PN2369

MS ADLER: I’m the HIA - - -

PN2370

MR MAXWELL: I withdraw that. I meant the HIA. Your honour, in terms of programing and just because on (indistinct) Mr Clarke was I think trying to make on my behalf, what we were suggesting is that the parties be required to consider determining the applications by different groups so one is those applications such as (indistinct) category where there is an existing standard that applies to the industry, it may not apply to everyone but it is one standard that applies, that those applications be grouped together. Those other applications where there is a standard that applies in some states and people seek to apply that standard across the board. There are other applications where people, where there are various standards and people seek to establish a standard across the board. They’re the three general categories that we would see but there may be other awards where the awards had a limited geographical location and there were not other awards in those areas but hey had a standard so there might be some slight differences in the award but generally they’re the three groups that we say, we can see no problem in the parties being required to identify where the applications fit into those three groups by the end of next week.

PN2371

The bench can allocate a conference to then hear the parties on how those three distinct groups should then be dealt with because it would be our view that the issues in regard to the first group which we see our applications fitting into would not be as substantial as the third group.

PN2372

THE SENIOR DEPUTY PRESIDENT: Whether that’s so, even on the estimate that you’ve given us of two to three to three and a half weeks or whatever it was for you to put in your material, we were to give the employers a similar amount of time and they’ve certainly asked for more, we would be into the Christmas period. There’s no way in which those matters could be heard this year.

PN2373

MR MAXWELL: Your honour, I understand that and I suppose that would then be an issue in regards to the new applications by Mr Clarke about the extent to which they may impact on that.

PN2374

THE SENIOR DEPUTY PRESIDENT: Yes, I just wanted you to understand that. According to the arithmetic of what’s been put to us, there really isn’t any basis on which we could hear and determine those applications this year.

PN2375

MR MAXWELL: Your honour, I take on board what you’re saying and our response would be that we would still seek the prosecution of our case. We have proposed a timetable for the filing of our submissions. If the employers want the same period of time to file theirs they then do so and then the bench hear our application as soon as possible in the near year. The issues that then arise is in regard to the employers opposed to any interim arrangements applying that they could then face a situation where the provisions cease on 31 December, a decision is then made in February which - - -

PN2376

THE SENIOR DEPUTY PRESIDENT: Yes, I think we know all those possibilities. Is there anything else?

PN2377

MR MAXWELL: Nothing else.

PN2378

THE SENIOR DEPUTY PRESIDENT: Thank you. Are there any other – the union advocates wanting to say anything at this stage? I don’t see anybody rising. We are going to take a brief adjournment in order to consider what’s been put. We would ask the parties to remain.

<SHORT ADJOURNMENT [3.42PM]
<RESUMED [4.16PM]

PN2379

THE SENIOR DEPUTY PRESIDENT: The full bench has given consideration to what has been put in the proceedings. We have decided to set down the hearing of the ACTU application for an interim order for 21 November. We will direct that the ACTU and unions should provide an outline of submissions and any material they seek to rely upon by 10 November. The employers should file outlines of submissions and any material they seek to rely upon by 17 November. We would ask the parties to confer in relation to the possible categorisation of the various claims which are before the full bench and the programing of any future proceedings. We would indicate that we would expect to be able to devote a small amount of time on 21 November to hearing brief reports from the parties in relation to their discussions about those matters. That concludes the proceedings this afternoon. The commission will now adjourn.

<ADJOURNED INDEFINITELY [4.19PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG6 DOCUMENT PREPARED PN1931