AM2014/220, Transcript of Proceedings [2015] FWCTrans 213 (8 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                                                               1051639-1

                                                                                    

JUSTICE ROSS, PRESIDENT

AM2014/220 and Others

s.156 - 4 yearly review of modern awards
 
Four yearly review of modern awards
Sub group 3C

Coal Export Terminals Award 2010	MA000045	AM2014/220
Dredging Industry Award 2010	MA000085	AM2014/223
Electrical Power Industry Award 2010	MA000088	AM2014/226
Marine Towage Award 2010	MA000050	AM2014/235
Port Authorities Award 2010	MA000051	AM2014/240
Ports, Harbours and Enclosed Water Vessels Award 2010	MA000052	AM2014/241
Seagoing Industry Award 2010	MA000122	AM2014/243

Melbourne

2.14 PM, MONDAY, 30 MARCH 2015

PN1

JUSTICE ROSS: Can I have the appearances, please. If you can indicate your organisation and which awards you're interested in. Can I begin with Melbourne.

PN2

MR N NIVEN: If the Commission pleases, I appear for the Australian Institute of Marine and Power engineers. Niven, initial N and the awards I have an interest in is the Dredging Industry Award, the Marine Towage Award, the Ports, Harbours and Enclosed Water Vessels Award and the Seagoing Industry Award.

PN3

JUSTICE ROSS: Thank you. No need to stand, that's all right.

PN4

MR M BUTLER: Your Honour, I appear for the Association of Professional Engineers, Scientists and Managers Australia, Butler, initial M, in respect of the matters 226, the Electrical Power Industry Award and 240, the Port Authorities.

PN5

JUSTICE ROSS: Thank you.

PN6

MR M RIZZO: Your Honour, Rizzo, M, on behalf of the ASU. My interest is in the Electrical Power Industry Award.

PN7

MS S CERCHE: Thank you, your Honour. My name is Cerche, initial S. I'm from the Maritime Industry Australia Limited. My interest is in the Dredging Industry Award number 223, the Marine Towage Award, 235, the Ports Harbours and Enclosed Water Vessel Award, 241, and the Seagoing Industry Award, 243.

PN8

JUSTICE ROSS: Thank you. No-one else in Melbourne. In Sydney?

PN9

MR A THOMAS: Yes, your Honour. Thomas, initial A, from the Mining and Energy division of the CFMEU. Our interests are the Coal Export Terminals Award and the Electrical Power Industry Award.

PN10

MS GHERJESTANI: Gherjestani, initial J. I appear for the Australian Workers Union. Our interest is to do with the Dredging Industry Award, the Electrical Power Industry Award, and Ports Harbours and Enclosed Water Vessel Award.

PN11

JUSTICE ROSS: Thank you.

PN12

MR W McNALLY: If the Commission pleases, McNally, W G, I appear with Mr Nathan Keats for the Maritime Union of Australia. Our interest is in the Seagoing Industry Award 2010, the Dredging Industry Award 2010, the Marine Towage Award 2010, the Port Authorities Award 2010 and the Ports Harbours and Enclosed Water Vessels Award 2010. If the Commission pleases.

PN13

JUSTICE ROSS: Thank you. Anybody else?

PN14

MR G NOBLE: If the Commission pleases, Noble, initial G for the CEPU. We have an interest in the Electrical Power Industry Award. Your Honour, if you are able to cast your mind back to stage 1 and the Manufacturing Award, it was raised there by one of my former colleagues that we would be seeking to amend or to have inserted into that award the same licence allowance that we're seeking to have in the Electrical Power Industry Award.

PN15

JUSTICE ROSS: Yes.

PN16

MR NOBLE: And I think it was agreed that the application to vary the Manufacturing Award would be heard at the same time as the Electrical Power Industry Award.

PN17

JUSTICE ROSS: Thank you. Anyone else?

PN18

MS G VACCARO: If the Commission pleases, it's Vaccaro, initial G, for the Australian Industry Group. Our interest is in the Electrical Power Industry Award and the Seagoing Industry Award.

PN19

MR S WOODBURY: Your Honour, Woodbury, initial S. I seek permission to appear on behalf of Port Kembla Coal Terminal, Newcastle Coal Infrastructure Group and Hay Point Coal Terminal in respect of the Coal Export Terminals Award 2010. That's matter number 220.

PN20

JUSTICE ROSS: Thank you. Is that it for Sydney? Okay, Adelaide.

PN21

MS E VAN DER LINDEN: Van Der Linden, initial E for the South Australia Chamber of Commerce and Industry trading as Business SA. We've just got an interest in the Ports Harbours and Enclosed Water Vessels Award, which is matter 241.

PN22

JUSTICE ROSS: Thank you. Brisbane.

PN23

MS K SKIPPINGTON: Your Honour, Skippington, initial K, from Master Electricians Australia. Our interest is in the Electrical Power Industry Award and the flow-on effects to the manufacturing award in which the CEPU wish to raise an electrician's licence allowance for.

PN24

JUSTICE ROSS: Thank you. And in Canberra? Are there any other appearances? All right.

PN25

The Commission has published a summary of the submissions received in relation to proposed variations for each of these awards. It went up on the web site last Friday. Does anyone not have a copy of that in relation to the awards in which they have an interest? If not, the idea today is to go through that summary, identify whether there are any amendments or corrections and also to have a discussion about whether any of those matters should be referred to a separately constituted Full Bench.

PN26

Out of today, we would be issuing a timetable for dealing with the award stage of these awards. It's likely that exposure drafts would be issued in mid to late May with a hearing of these award matters at least in relation to the exposure drafts in September of October this year.

PN27

Are there any questions about the process or any initial issues anyone wants to raise? No. Can I go firstly to the Coal Export Terminals Award. There are two proposed variations by the CFMEU. Are there any corrections to the summary document or any additions to that document?

PN28

MR THOMAS: Your Honour, the only point of clarification, I'd like to add is that to the last sentence in point 2, going to the payment for work on a public holiday, the statement is a correct reflection of the submission that we put in. I'd just like to mention that in the event that a public holiday falls at a time when a person is working either afternoon or night shift or on a weekend, the actual rate could be greater than triple time.

PN29

JUSTICE ROSS: I see.

PN30

MR THOMAS: As the award states that - the Black Coal Mining Industry Award, your Honour, states that for the work performed on a public holiday, the rate is double-time in addition to the rate prescribed for that day. I might add that there is a matter before the Black Coal Mining Industry Award between ourselves and the AIG that goes to the when a person works on a public holiday, but I just thought I'd mention that to inform you that it could be greater than triple time.

PN31

JUSTICE ROSS: What's the attitude of the employer interests in this award?

PN32

MR WOODBURY: Your Honour, Mr Woodbury here on behalf of three of the employers. Your Honour, we have no further issues to raise other than those set out in the summary document. In terms of our position we are hopeful of reaching agreement in relation to item 1. In item 2, there is no agreement or at the moment we would be at odds with the union in relation to what they're seeking, but we would be hopeful of having some discussions with the CFMEU so that we could at least explore whether there's another position that might be reached, otherwise we would possibly see it being amenable to conciliation before a member of the Commission.

PN33

JUSTICE ROSS: All right. Does the CFMEU have any issue with conciliation in relation to these matters?

PN34

MR THOMAS: Not at all, your Honour. Can I just mention in respect to casual employment, that has been either mentioned by us in the context of the casual Full Bench.

PN35

JUSTICE ROSS: What do you mean "has been mentioned" by you?

PN36

MR THOMAS: Yes, your Honour, there was proceedings before his Honour Hatcher VP on 22 December. During those proceedings, which were in the context of the common award issues, the Commission raised the possibility that award‑related matters going to casual employment that aren't common award matters would be dealt with by the same Full Bench that was dealing with the common award, casual matters.

PN37

JUSTICE ROSS: Well, I think the - look, if I'm' right about this clause that you're talking about here that would be a clause which would say something like, "The casual loading in this award is in lieu of," and it might list a set of entitlements such as annual leave and the like. In the decision issued by the Commission on, I think, 24 December last year, that clause which had been a standard clause in the exposure drafts released on the group 1 awards, that clause would be deleted from the exposure drafts unless parties in a particular award wanted to agitate for the retention of a similar clause.

PN38

So I think the standard position now is that we are not going to put clauses of that nature in the exposure draft, unless parties want to have something specifically included.

PN39

MR THOMAS: Thank you, your Honour, it may be that we await the exposure draft.

PN40

JUSTICE ROSS: Yes, okay. Have you had an issue that's been the subject of Commission conciliation or involvement in the last 12 months or so, and if so, who was it before? The reason I ask this is to identify ‑ ‑ ‑

PN41

MR THOMAS: Not on any of these matters or to do with this award, your Honour.

PN42

JUSTICE ROSS: All right. Is there anything else either of you wish to say in relation to this award?

PN43

MR WOODBURY: No, your Honour.

PN44

JUSTICE ROSS: All right. I will arrange a conference. Do I take it a Sydney-based member would suit each of you?

PN45

MR WOODBURY: Yes, please, your Honour.

PN46

JUSTICE ROSS: All right, thank you. I will call on the next award then, the Dredging Industry Award. In this award, no party has raised any proposed variation. The Fair Work Ombudsman has raised an issue for clarification, but that's all. Are there any corrections, and movements or additions proposed to the summary document? That's by way of saying are any of you seeking any changes to be made to the Dredging Industry Award? No. Does anyone have any comment at this stage on the Ombudsman's question? That seems to go to the fact there is no definition of a weekly aggregated wage in the award.

PN47

MR McNALLY: Your Honour, we will search the Dredging Industry Award to see if we can find an answer to the Ombudsman's concern and, if so, we will notify the Commission via appropriate means sometime after Easter.

PN48

JUSTICE ROSS: All right. Thanks, Mr McNally. Anyone else wish to say anything further about the Dredging Industry Award? No. Let's go to the Electrical Power Industry Award. There's the same issue raised in the summary that I've just had the conversation with the CFMEU about in relation to the casual employment question.

PN49

The CEPU, as has been foreshadowed, is seeking the inclusion of an electrician's license allowance. Are there any other matters in relation to this award? Can you just remind me in the electrician's license allowance, what is the other award that that's being sought in relation to?

PN50

MR NOBLE: Manufacturing, your Honour.

PN51

JUSTICE ROSS: Are you seeking to increase the allowance?

PN52

MR NOBLE: Your Honour, it doesn't actually exist in this award nor the Manufacturing Award. So we were seeking and inclusion of that for those electricians who are employed under those awards. We are also seeking a variation to the Electrical Contractor Award, but it is in that award currently. It's my understanding from reading the transcript that AI Group wanted to have - originally we proposed that these three awards be dealt with at the same time, but because these two awards don't have the allowance currently and the Electrical Contractor Award does have the allowance, it was pressed that they should be dealt with separately.

PN53

JUSTICE ROSS: Where has it ended up?

PN54

MR NOBLE: Here, your Honour.

PN55

JUSTICE ROSS: No, but I mean it is - what's your position, would you see the Electrical Power and the Manufacturing Award applications being dealt with together with the proposed increase for the electrical contracting? Or do you see them being dealt with separately? What's your position?

PN56

MR NOBLE: Your Honour, to be frank, we would prefer them all to be dealt with at the same time, because I think a lot of the evidence that we're going to be calling will be substantially the same and probably from the same people, and from reading the transcript, I couldn't actually see whether or not a decision had actually been made that they were going to be dealt with separately.

PN57

JUSTICE ROSS: All right.

PN58

MR NOBLE: Or together. So really, your Honour, it's as the Commission best feels that the matters can be dealt with.

PN59

JUSTICE ROSS: What sort of evidence - what are the dimensions of the case from your perspective?

PN60

MR NOBLE: We are going to be - at the moment the national office is liaising with the various state branches to identify not just officials but also those people who work in those industries and areas, whether or not they're under agreement or they're exposed to the awards. So we are going to try and find people who work in the industries who are under agreements and also those who aren't under agreements, so they're award-reliant, and gather that information as best we can and present it to the Commission to bolster our argument.

PN61

JUSTICE ROSS: When will you be ready to run your case?

PN62

MR NOBLE: I think it will be - the timetable that you put there, your Honour ‑ ‑ ‑

PN63

JUSTICE ROSS: Yes, but I'm not sure. If we deal with both this allowance in Manufacturing and Electrical Power at least, it may be that that's just dealt with by a separately constituted Full Bench.

PN64

MR NOBLE: Yes, your Honour.

PN65

JUSTICE ROSS: Look, I say that because when the Four‑Yearly Review Bench will be dealing with all the matters that are listed today and probably over a two-day period and will be finally determining any issues out of the exposure drafts. They don't normally deal with merit applications unless they are fairly short in compass; they're issues like resolving ambiguities or something of that nature. That's why I asked you what the dimensions of your case are likely to be.

PN66

So do you envisage calling a number of witnesses in support of your applications?

PN67

MR NOBLE: Well I think, your Honour, as you say, it is merits-based and it is going to have to be more of a substantive application. So yes, I don't think that we would have any other choice.

PN68

JUSTICE ROSS: All right. Okay, thank you. What about the employers with an interest in this matter? What do you say in relation to the allowance claim.

PN69

MS VACCARO: Your Honour, Vaccaro initial G, from the Australian Industry Group. Where this matter, whilst it's been raised in Manufacturing, I guess, hasn't progressed in the discussions that we have been currently having in respect of the other variations in the Manufacturing Award or the proposed Manufacturing Award has sort stayed separate, because we foreshadowed, I guess, arising in this award as well.

PN70

We see that the Electrical Power Industry Award and the Manufacturing Award insofar that the union is seeking inclusion of allowance would sit very separately to the application to increase the allowance in the Electrical Contracting Award.

PN71

JUSTICE ROSS: Yes.

PN72

MS VACCARO: Of course, in respect of even across three of the awards, the evidence from our end in opposing each of the applications would be different, because the awards, I guess, come from different places.  So we would be putting on response material to the union, so we're, I guess, in your hands in respect of programming for that.

PN73

JUSTICE ROSS: Is there any opposition to dealing with the Electrical Power Industry Award and the Manufacturing Award insofar as I constitute a bench to deal with the application by the CEPU to insert an electrician's licence allowance into both of those awards? They'd be dealt with sequentially. It would be the same bench and it would deal with the programming issues associated with the calling of evidence in those matters.

PN74

I take your point that the increase of an allowance is a different thing from the insertion of a new allowance, but do you have any opposition to the two awards being dealt with by the same bench?

PN75

MS VACCARO: Your Honour, just to be clear of your question, are you speaking in respect of the Manufacturing Award and the Electrical Power Industry Award being heard together?

PN76

JUSTICE ROSS: That's right. Only in relation to this issue.

PN77

MS VACCARO: Only in relation to this issue. We don't have an objection to that. I guess the point I raised earlier was in relation to the Electrical Contracting Award coming in.

PN78

JUSTICE ROSS: No.

PN79

MS VACCARO: It's our position that the Electrical Contracting Award should sit out separately in stage 4.

PN80

JUSTICE ROSS: Yes, that's fine. All right. Well, from the CEPU's perspective, are you content if your application for an electrician's licence allowance in the Manufacturing Award and the Electrical Power Industry Award be heard by the same Full Bench?

PN81

MR NOBLE: It seems a sensible way forward, your Honour. Yes, we are content with that.

PN82

JUSTICE ROSS: Does anyone else have a different view? No, okay. I will make arrangements for a bench to be constituted to deal with that matter. Other any other matters in this award? No. Can I move to Marine Towage. As the summary indicates - well, I'll deal the Marine Towage and the Port Authorities Award together. In each of those awards, no submissions have been received from any interested party seeking any variation to those awards. So the only issues we would be dealing with would be the translation of those awards into the exemplar award format and you'd see that when you got the exposure drafts.

PN83

Are there any issues anyone wishes to raise in relation to either Marine Towage or the Ports Authorities Award?

PN84

MR McNALLY: Only to point out that in relation to the Marine Towage Award there was an issue raised in the MES issues.

PN85

JUSTICE ROSS: Yes.

PN86

MR McNALLY: Being that the absence of the word "serious" preceding "misconduct" in an especial clause, but that will be dealt with in those proceedings, I assume.

PN87

JUSTICE ROSS: Yes. Well, I think it's already been dealt with. I think that this is the issue that was addressed in the recent February proceedings and the bench is reserved on that question.

PN88

MR McNALLY: Thank you, sir.

PN89

JUSTICE ROSS: Thanks. Nothing further? If we go to the Ports Harbours and Enclosed Water Vessels Award, the summary identifies some four issues that have been raised in this award; two by the FWO seeking clarification of issues; AIMPE seeking a change to the coverage clause and also the relativity between a master and engineer. Are you seeking - is that the same relativity in the Seagoing Award?

PN90

MR NIVEN: No, your Honour. This is a different one. We'd take this as an ambiguity problem in the placement of the original award.

PN91

JUSTICE ROSS: Okay.

PN92

MR NIVEN: Yes. My suggestion was that I think item 1 and possibly the Fair Work Ombudsman items - I might be able to deal with the Fair Work Ombudsman items by way of response. I think the first issue really goes to the heart of what we would say needs to be reviewed in the award. I list the coverage issues.

PN93

JUSTICE ROSS: This is the coverage question?

PN94

MR NIVEN: This is the coverage issue.

PN95

JUSTICE ROSS: Yes.

PN96

MR NIVEN: So I think some mileage might be gained if there was a conference of the parties in relation to that. Whether or not the wages issue is going to be progressed at a conference or whether that just needs to go to a Full Bench, but there's probably no reason why it couldn't be subject to some discussion at a conference to see if there's a way forward.

PN97

JUSTICE ROSS: Well, what is the view of the other parties? Are they content for a conference to be organised to discuss AIMPE's coverage and wages claims?

PN98

MS VAN DER LINDEN: Your Honour, it's Van Der Linden from Business SA here in Adelaide.

PN99

JUSTICE ROSS: Yes.

PN100

MS VAN DER LINDEN: In relation to the coverage charges, we are currently just consulting with our members over that matter. So we are not in a position to indicate whether or not we oppose the variation or not. We would certainly be willing to participate in any sort of conference that is put forward by the Commission.

PN101

JUSTICE ROSS: Yes. Anyone else?

PN102

MS CERCHE: Thank you, your Honour. Maritime Industry Australia Limited would be happy to participate in any conference that the Commission facilitated.

PN103

JUSTICE ROSS: All right, thank you. Anybody else?

PN104

MR McNALLY: The MUA will respond in writing to the issues raised - will respond to the Commission in writing after Easter to the two issues raised by the Fair Work Ombudsman. We don't believe that will be a great deal of agreement on the coverage issue. They have shown much interest in the third item, if the Commission pleases.

PN105

JUSTICE ROSS: Yes. Do the

PN106

MR NIVEN: Do the officers union - the AMAU - have a view about the relative ‑ ‑ ‑

PN107

MR NIVEN: I'm sure they'll have a view, but I don't know what that is for the purposes of this hearing.

PN108

JUSTICE ROSS: You haven't had any discussions with them?

PN109

MR NIVEN: Only to notify that the issues are live.

PN110

JUSTICE ROSS: All right. We will await your correspondence, Mr McNally. I'll have a member organise a conference of the parties in relation to the AIMPE claims. All right, thank you. The Seagoing Award; there are some seven items identified. Five of them are AIMPE claims in relation to aspects of the award. Are there any corrections or amendments or additions to the summary? No. Is anyone in a position to identify whether or not they support or oppose the AIMPE claims?

PN111

MS CERCHE: Thank you, your Honour. At this stage we are not in a position to indicate whether we support or oppose. I suspect with respect of some of the claims we will be in a position to perhaps talk further with AIMPE, with a view to reaching a agreed position, but with others we would need further information from them about exactly what it is they are proposing.

PN112

JUSTICE ROSS: All right. Anybody else? No. It might be convenient, because there's an overlap in the coverage issues to also refer this to a conference with the same member and probably held at the same time as the Ports and Harbours matter. Can I suggest that AIMPE give some thought to the precise nature of the variation it seeks in relation to each of the matters that it has identified.

PN113

MR NIVEN: Yes, happy to provide that.

PN114

JUSTICE ROSS: All right, thank you.

PN115

MR McNALLY: Could we indicate that the Maritime Union will respond in writing after Easter to the two concerns raised by the Fair Work Ombudsman. We think we have the answer.

PN116

JUSTICE ROSS: Yes, sure. Thank you. All right, is there anything further in relation to the Seagoing Award? If not, that then concludes the awards listed at 2.15 and I will adjourn until 3.15 at which stage I will deal with the Gardening and Landscaping Services Award and the other six awards listed at that time. Thank you.

ADJOURNED INDEFINITELY                                                           [2.44 PM]