EM2013/36, Transcript of Proceedings [2015] FWCTrans 549 (5 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052476

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SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER LEE

EM2013/36

Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.

CSR & Holcim Staff Association

(EM2013/36)

CSR Staff (Consolidated) Award 2000

Melbourne

8.01 AM, TUESDAY, 22 SEPTEMBER 2015

PN1

SENIOR DEPUTY PRESIDENT ACTON: Can I have the appearances please.

PN2

MR KEATS: Good morning, your Honour, my names is Keats, Solicitor. I seek permission to appear on behalf of the CSR & Holcim Staff Association.

PN3

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN4

MR PARRY: If the Full Bench pleases, I seek permission to appear for CSR Limited with my learned friend Mr Jellis.

PN5

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Permission is granted having regard to section 596(2)(a).

PN6

Gentlemen, we've read everything, so there's no need to repeat what's in the written submissions. There's a question of whether you wish to add anything prior to us asking some questions.

PN7

MR PARRY: If the Commission pleases, subject to the views of the Full Bench, I have had discussions with Mr Keats and on that first, if that's satisfactory to the Full Bench. What I would propose to do is firstly confirm the material before the Full Bench, given that this is a new hearing. Secondly deal in a little bit more detail with the effect of the involvement of Bricks Australia and the joint venture and thirdly, make some comments additional to the material filed on the requirements and obligations under the Fair Work Act and the Transitional Act.

PN8

The material before the Full Bench, firstly, there is a statement of agreed facts dated 29 July 2014. I noted on the last occasion the Full Bench marked these matters. I'm in the Full Bench's hands as to how it proposes to deal with that.

PN9

SENIOR DEPUTY PRESIDENT ACTON: I will mark it for identification Mr Parry. I'll mark that as P1.

EXHIBIT #P1 UPDATED STATEMENT OF AGREED FACTS DATED 29/07/2014

PN10

MR PARRY: As your Honour pleases. The statement of agreed facts is dated 29 July. We do point out that there are - whilst it was agreed facts as at 29 July 2014, there has been some developments that means some parts of it, whilst they were accurate as of 29 July 2014, don't reflect the position as of today. For example, 6(b) refers to the CSR Bricks and Roofing Division. It still remains that division but as I'll deal with shortly, it comes in a different form under the joint venture. So 6(b) necessarily changes.

PN11

SENIOR DEPUTY PRESIDENT ACTON: 6(b)?

PN12

MR PARRY: 6(b).

PN13

SENIOR DEPUTY PRESIDENT ACTON: This is the agreed facts?

PN14

MR PARRY: Statement of agreed facts dated 29 July 2014.

PN15

SENIOR DEPUTY PRESIDENT ACTON: Sorry, yes. Yes 6(b) is what?

PN16

MR PARRY: Paragraph 6 refers to the four divisions. There remains three divisions of CSR, but with regard to CSR Bricks, it has entered into a joint venture. So what's said in 6(b) is qualified by what comes later. In a similar vein, 16(b) refers to CSR Bricks and Roofing having competitors, one being Boral, clearly that is not true now.

PN17

Paragraph 21 and 22 attach a table which is attachment 8. Paragraph 22 refers to attachment 9(b) and another table. We don't rely on those because we've produced other tables which replace them.

PN18

Paragraph 23 refers to the number of employees across the division. As we've set out, there are more employees which we have, for the sake of this exercise, distributed in similar proportions across the other businesses.

PN19

With regard to paragraphs 29 to 32, that refers to salary calculations and modern award comparisons following the last proceeding, given issues raised. We don't rely on paragraph 29 to 32. The CSR staff survey there was a staff survey obviously conducted at that time. That has been superseded, so for today's purposes we don't rely on 33 and 34. So that's the document that we rely on as of today's date.

PN20

There is a joint submission of the parties.

PN21

SENIOR DEPUTY PRESIDENT ACTON: Are you talking about the current one?

PN22

MR PARRY: No, I'm referring to one dated 29 July 2014 and again, there is reference to attachment 9 on page 4, 9(c), we just note that as I've indicated we've superseded attachment 9.

PN23

There is a further statement of agreed facts dated 30 September 2014. There's no change to that. Then there is the further joint submissions which are dated 17 October. Again the change to that concerns paragraph 25. Paragraph 25 has been superseded by an amendment to the salaries in the 2015 award.

PN24

There are submissions of CSR Ltd dated 11 September 2015.

PN25

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN26

MR PARRY: There is an updated statement of agreed facts and annexures dated 11 September 2015.

PN27

SENIOR DEPUTY PRESIDENT ACTON: Yes. I've marked the updated statement as P1 and the submissions as P2.

EXHIBIT #P2 SUBMISSIONS OF CSR LTD DATED 11/09/2015

PN28

MR PARRY: As the Commission pleases. The Commission in P1, the updated statement of agreed facts, there's a reference to - as a consequence of the joint venture arrangement, the employment of 109, that figure is typographically incorrect. It should be 107.

PN29

There is also the response from CSR to the further directions made 14 September 2015 and various appendices.

PN30

SENIOR DEPUTY PRESIDENT ACTON: Yes, I'll mark that as P3.

EXHIBIT #P3 RESPONSE FROM CSR TO THE FURTHER DIRECTIONS AND VARIOUS APPENDICES MADE 14/09/2015

PN31

MR PARRY: Other material that we have filed in these proceedings, we filed copies of the CSR Award 2015 both in clear and marked up form. We've also filed a report of Brian Lacy.

PN32

SENIOR DEPUTY PRESIDENT ACTON: I'll mark the Proposed CSR Staff Modern Award 2015 as P4. The so called Expert Report of Brian Lacy as P5.

EXHIBIT #P4 PROPOSED CSR STAFF MODERN AWARD 2015

EXHIBIT #P5 EXPERT REPORT OF BRIAN LACY

PN33

MR PARRY: That's the material upon which we rely. Clearly there was an earlier decision in this and there has been a decision of the Full Federal Court. I'm assuming the Commission has access to both its earlier decision and the decision of the Full Federal Court.

PN34

That's the material on which we rely. As I indicated we were proposing to deal in a little more detail with the Bricks Australia position. In the response to the directions of the Full Bench in paragraph 8 there is reference there to - within the context of the joint venture that's been entered into, the CSR award continues to apply to cover 107 of the employees of BAS. Those are clearly employees that were previously employed in Bricks.

PN35

The Commission has before it the structure of that Bricks operation in the attachments to the first set of agreed facts. The first set of agreed facts had a number of attachments setting out the business of CSR and in particular, attachment 4. If I could take the Full Bench to attachment 4. This is to show where the 107 are. It's not the most recent one I'm taking the Commission to.

PN36

SENIOR DEPUTY PRESIDENT ACTON: Yes, I understand that. My associate's just finding it. It's the agreed facts.

PN37

MR PARRY: Attachment 4 has a heading CSR Bricks and MG Division the words 'roo' and 'fire' are missing from that. It clearly should be a roofing division. This contains within it the operations where bricks were manufactured and so forth. It was a CSR bricks operation and the places where these 107 are, if the Commission follows through on page 5 of that, there's Cecil Park, it's a bricks manufacturing operation of CSR. The Commission will see under the heading about four or five down, applicable industrial instrument CSR Consolidated Award 2000 number cover 10.

PN38

That's one operation. The next is on page 7, Horsley Park, another brick manufacturing operation. There is a head office on page 9 at North Ryde. On page 12 there is Schofields, another brick manufacturing operation. On page 15 there is a brick manufacturing operation at Oxley. On page 16, at Warana Beach, the head office of the brick division in Queensland. In South Australia on page 17, Golden Grove, where bricks are manufactured. So that's where the 107 are.

PN39

Returning to the response to the directions of the Full Bench, there is reference to, in paragraph 9, this is the document - sorry I didn't get all the markings, so I apologise for that, your Honour. The response refers to, in paragraph 9, to the remaining 263 employees which were not former employees of CSR who were covered by the CSR award, are being employed under a range of enterprise agreements. The Commission will note a number of enterprise agreements in a box. Those operations, for example, Albury, Badgerys Creek, Bringelly and Allwoods remain still in operation and there are former employees of CSR now with Bricks Australia who are working at those various sites.

PN40

That sets out what has happened practically as a consequence of the setting up of the joint venture. The issue then raised by the directions and requests for response was the question of whether the CSR was an enterprise instrument within the meaning of item 4(2). We, in our outline have gone through some of the statutory parts and I don't repeat those, but in paragraph 20, there's reference to the coverage clause of the CSR Award as previously set out by the Full Bench and that sets out the coverage as of that particular date, when the Full Bench dealt with it.

PN41

Paragraph 22 makes the submission that the time for assessing whether there is an enterprise instrument is at immediately prior to the 1 July 2009. I wanted to expand on why we say that. That was of course the WR Act repeal date. Before then we say it's not contentious. The CSR Award was an award made up of the parts as the Commission appreciates the legislative stream wasn't particularly straight forward, but our submission is that the CSR Award was an award as affected by the WR Act.

PN42

On 1 July 2009 the CSR Award became what is described as a transitional instrument.

PN43

SENIOR DEPUTY PRESIDENT ACTON: This is covered in your submission, isn't it?

PN44

MR PARRY: Not fully and that's the reason why I'm dealing with it. The Commission has the TPCA Act, the Transitional Provisions Act. The Commission will note that schedule 3 to that Act is headed the continued existence of awards workplace agreements and certain other WR Act instruments.

PN45

This was a part that enabled those instruments to continue to exist and the second part 2 in schedule 3 refers to certain WR Act instruments and number 2(1) deals with various WR Act instruments but including an award. For the purposes of this matter, the CSR Award 2000 was a WR Act instrument and the WR Act instrument in item 2(1) became a transitional instrument and it continued in existence in accordance with the schedule when it became a transitional instrument.

PN46

What that means in our submission is that it was a transitional instrument and indeed the transitional instruments were classified as various matters for our purposes, item 2(5) classified this particular instrument as an award based transitional instrument.

PN47

Schedule 3 then set out who were covered by these instruments and set out how they could be varied or terminated. Item 9 for example, refers to the variation and termination of transitional instruments and our submission is that it sets up a scheme for dealing with those instruments. That scheme can then be followed through with various options as to how these instruments are to be dealt with.

PN48

I should point out for clarity, if that were possible in this area, that item 29 refers to modern awards and award based transitional instruments, there is reference within that to enterprise instrument. Enterprise instrument is defined in the dictionary in schedule 2, item 2, and that takes us to schedule 6 and the definition there of an enterprise instrument.

PN49

For present purposes, once the instrument becomes a transitional instrument it becomes subject to the scheme and can only be dealt with in accordance with the provisions of that. Once the award becomes a transitional instrument, then the transitional provisions and the Act commence to act on it and what can be done with it, is set out therein. It's status before that date can be relevant to whether the Award becomes an enterprise based instrument and we say it has here.

PN50

If the circumstances change after 1 July 2009, for some reason in respect of that instrument, and there are a range of instruments there, that does not affect the status of the instrument as a transitional instrument, or we say, an enterprise award based instrument. The Transitional Provisions Act has set up a detailed and particular scheme for dealing with such instruments and such enterprise instruments can't be terminated except in accordance with schedule 6. Schedule 6 deals with the enterprise instrument modernisation process. In it we note item 2, number 2 and 2(a) to define what an enterprise award based instrument is and it is an award based transitional instrument which this instrument became on 1 July 2009.

PN51

Schedule 6 then creates a process for these instruments either to be modernised under item 4, to be terminated under item 5, or to cease operation by process of the Act in item 9 on 31 December 2013. We submit that as from 1 July 2009, certain processes were set in train, depending on the classification of the instrument at that time and the schedules operate on the assumption that there is an instrument of a certain identified status.

PN52

Our position is that when one looks through the schedules, they assume a status of the certain transitional instruments and operate on that basis. If there is an instrument with one of those statuses, the legislative scheme gives the parties options. One option is to make an application and that is set out in schedule 6, item 4 and the staff association have done that within the time frame prescribed. There is a valid application made based on the status of the CSR Award at the relevant time, being when it became a transitional instrument in particular, an enterprise instrument.

PN53

In respect of that application, the Fair Work Commission can then exercise those prescribed powers in division 2, enterprise modernisation process. That brings us, we say, logically to the territory that this application and this instrument should be dealt with in accordance with the various requirements set out in schedule 6, which require consideration in item 4, to various determinations and considerations and also the modern award objectives referred to in section 134.

PN54

However, before dealing with those, so our argument, we say the statutory scheme requires, that we work out what the status of the instrument is as a transitional instrument that's been set by the legislation and on that basis, in a way the Bricks Australia proceedings don't become relevant to the status of the instrument, but they become relevant to the consideration set out in schedule 6.

PN55

There is an argument that somehow it's the date of the application that sets the time when one considers the status of the instrument. That is an argument that found some support in a Full Bench of this Commission and I can hand up a copy of the Qantas, a decision of the Airline Officers, it's a Full Bench clearly. Perhaps I'll hand up the copies of it.

PN56

These always have complex factual circumstances and extract I suppose - paragraph 3 of the Airline Officers (Qantas Airways Ltd) Award 2000 dealt with a threshold issue as to whether the Commission had jurisdiction to make a modern enterprise award and there is then in paragraph 4, set out the position that one of the companies, Qantas Holidays, had its shareholding reduced to a particular level. It ceased to be a related body corporate.

PN57

Well we don't have that problem in this case because Brick Australia remains a related body corporate, but there was an argument raised by the ASU set out in paragraph 5 where the contention of the ASU was that the change in ownership occurred after the commencement of the Transitional Act. The status of the Airline Officers Act, this enterprise award continues such as to enable an application to be made to replace it in the alternative, seeks other things.

PN58

But the Full Bench said,

PN59

We do not accept the submission that on the status of the award in the applications, in our view the requirements of item 4(2) must be met at the time an application was made. The application was made on 23 December 2013, the application was required to seek the making of a modern enterprise award to replace an enterprise instrument. At the time it wasn't an enterprise instrument, the applications were invalid.

PN60

Now one can read that, that it somehow supports a view that it's the date of the application that's relevant. If that be the reading we would submit respectfully it's not the proper approach to it. Our submission is that the relevant date is 1 July for the reasons I've submitted. However, for our purposes if the Full Bench is to read it that way, it does follow it makes no difference to our case because the transactions with regard to Bricks Australia took place after the application. So it doesn't affect our case either way, we're just simply putting the argument that we think is the preferable one.

PN61

Our position is we are really in the world of schedule 6 and our position is the validity of the application depends on the status of the instrument as at the date of the commencement of the legislative scheme. After that date, it's a matter that the legislature has given the Fair Work Commission particular powers as set out in schedule 6. It is those considerations set out therein that are what we submit the Fair Work Commission is required to give consideration to.

PN62

I'm not going to repeat what our position is, that any changes post 1 July 2009 or the date of the application can't change the status of the instrument as the legislation set it. However, we say for completeness that even that were not to be the approach of the Full Bench in this matter, we say that the Bricks Australia joint venture has not changed the status of the instrument, there is still a single enterprise or part of a single enterprise in existence, in which there are employees to which the CSR award covers. Our position is that the CSR award is still an enterprise instrument on whatever view is taken, in particular the - I think we've made submissions and again I'm trying to avoid repeating things, your Honour. Item 2A refers to the instrument covering employees in, and I quote, "A single enterprise or part of a single enterprise".

PN63

That is, as the Commission would appreciate making sure that the instrument is dealing with a single enterprise clearly or a part thereof, and the Commission is well familiar with the background of these single enterprise requirements being in contra distinction to the long past where there multi parties to instruments, multi employers, multi businesses. Our position is an instrument does not have to cover everyone in the enterprise. Indeed, that is generally the case. The enterprise of a business or part thereof here is that of CRS and a related corporation being Bricks Australia, which is a subsidiary in accordance with the Corporations Code.

PN64

Before the most recent events, as I've taken the Commission to, CSR had a bricks division. That became part of another entity which is a subsidiary of CSR. We say there's nothing remarkable about that, nothing that would change the status of the fact that there is an enterprise or part thereof in existence. The award, the coverage of CSR is on CRS Ltd and on employees in or eligible to be in the CSR staff association. The CSR staff association covers both subsidiaries and employees of CSR.

PN65

However, what has happened here and changes the legal status of things but practically is that the Fair Work Act and the transitional provisions operate in respect of transfers of employment and business. The Act has dealt specifically with the circumstances of the transfer of business, post the WR Act repeal and the Commission will be familiar with item 8 of schedule 8, which deals with this in detail. Practically, whether we would want it or not, the Act operates such that the 107 employees that I've referred to who transferred across, who are continuing to do the same work, are bound by the CSR Ltd Award 2000. That simply remains the position. It remains the position within the joint venture and within the enterprise.

PN66

In brief, our position is that the joint venture with Boral and the transfer of some employees to Bricks Australia has not altered the status of the CSR Award, it remains an enterprise instrument. There is still employees covered in a single enterprise or part thereof being the CSR business comprising the other divisions and the revamped brick operation, operated by a subsidiary. Accordingly, the considerations in schedule 6 should apply to the instrument.

PN67

Now it's to those considerations that I'll briefly turn because it's our position that it's schedule 6 sets out these considerations. The Commission would appreciate that we've made fairly comprehensive submissions about this. We respectfully submit that with regard to each of the considerations the positions are either in our favour or neutral.

PN68

SENIOR DEPUTY PRESIDENT ACTON: Are you dealing with item 4(5)?

PN69

MR PARRY: Yes, I'll turn to item 4(5). We have - - -

PN70

SENIOR DEPUTY PRESIDENT ACTON: You're put written submissions on those.

PN71

MR PARRY: We have.

PN72

SENIOR DEPUTY PRESIDENT ACTON: You've put written submissions on the modern award's objective. Have you put submissions on the minimum wages objective?

PN73

MR PARRY: The minimum wages objective. I'm taking the - what I was doing is proposing to supplement briefly the content of item 4(5)(c), so that refers to the content or likely content of the modern award taking into account - and I think on the last occasion the Full Bench referred to in its submissions - I'm sorry, in the decision which we refer to in paragraph 41 of our submissions, I think the last occasion the Commission referred to some matters which were said to be more beneficial to employees and less beneficial for CSR. There was reference to casual loading, some penalty rates, part-time engagement provisions and junior rates.

PN74

With regard to casual loading, we say it's fairly clear that that's the combined effect of the 20 per cent and the one twelfth, being 8.33 per cent, would make the casual loadings much more beneficial. Similarly, the junior rates are a mixture but overall we say that the junior rates in the CSR Award were on balance well ahead. The penalty rates - - -

PN75

SENIOR DEPUTY PRESIDENT ACTON: When you talk about the CSR Award, you need to be clear about whether you're talking about the proposed award or the 2000 award.

PN76

MR PARRY: The 2000, because that's - if we're dealing with 4(5)(c), as I would understand it, we're looking at the content of the modern awards which may operate and we're then comparing them, I would think, to the existing - what we would say is in the CSR Award 2000. As the Commission appreciates, this is exercise where you're in effect dealing with both whether to make it and the content of it. So I'm dealing primarily here with the casual loadings that are within the existing award and we say there - - -

PN77

SENIOR DEPUTY PRESIDENT ACTON: Why do you say that because item 4(5) has the introduction about a modern enterprise award, why isn't one considering the proposed modern enterprise award and comparing the extant modern awards, for example, the manufacturing award with the proposed award?

PN78

MR PARRY: There is no reason, we would submit, why they considerations under item 4(5) would not include both. We are not suggesting one should - we're happy to deal with both within this comparative arrangement. We were trying, I suppose, to put all the material before the Bench to enable well fair and accurate comparisons as no doubt will occur. Our position is that the existing award has a particular provision in it with regard to casual loadings. These are set out in annexure 5, which is the safety net table, which sets out the comparison with the casual juniors and other conditions.

PN79

Penalty rates, I think the one award that had different and we say outlie penalty rates was the joinery award. The penalty rates that were proposed - that are proposed and exist under both the old award and the proposed award, are better we would say in respect of, for example, shifts in the manufacturing award.

PN80

SENIOR DEPUTY PRESIDENT ACTON: Mr Parry, has CSR done a comparison of the shifts that are actually worked and the remuneration outcome pursuant to the 2000 award, 2015 proposed award and the modern awards that would apply with the employees involved, as opposed to a line by line comparison of the actual conditions, the actual outcome?

PN81

MR PARRY: No, they haven't.

PN82

SENIOR DEPUTY PRESIDENT ACTON: So that doesn't form the basis of your submission that the proposed award is more beneficial?

PN83

MR PARRY: Well the more beneficial argument is based on an overall assessment of the line by line comparison of the various instruments.

PN84

SENIOR DEPUTY PRESIDENT ACTON: So you say line by line is more superior?

PN85

MR PARRY: Well line by line, if one goes through the casual rates, the termination of employment provisions, the minimum wages, the junior rates and so forth - - -

PN86

SENIOR DEPUTY PRESIDENT ACTON: The stuff set out in your comparison table.

PN87

MR PARRY: The material set out in our comparisons.

PN88

SENIOR DEPUTY PRESIDENT ACTON: Yes. That's the basis of your submission?

PN89

MR PARRY: That's the basis of the submission. I mean the - working out - the thing about shifts is whilst I don't have instructions on this I doubt that there will be many of the employees that are relevant to this application that would be working shifts. The vast majority of them would be working day hours, so I'm not sure that you say the shifts - the question your Honour raised was shifts that are actually worked. Well without getting the instructions on it, which I'm sure I can do at fairly short notice, I would anticipate that there would be very few people that would actually be working shifts.

PN90

SENIOR DEPUTY PRESIDENT ACTON: Well that's interesting because in the agreed facts at paragraphs 22 and 26, you point out that the shift provisions are more beneficial, I think, for the WHSE managers and the factory managers. So they're not working shifts?

PN91

MR PARRY: I don't think I said no one was working shifts. I said I don't think many would be.

PN92

SENIOR DEPUTY PRESIDENT ACTON: Do you know whether the WHSE managers and the factory managers work shifts?

PN93

MR PARRY: I can take instructions on that.

PN94

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN95

MR PARRY: Likewise, I think that's dealing with (d). (e) deals with enterprise specific terms and conditions and I think the table we have included in the further submissions deals with a number of particular items, and again when one deals with notice of termination, public holidays. As we read the public holidays provision it cannot be said to be less beneficial or cannot be said to be comparable to provisions as set down by state laws.

PN96

The limitation on the deferral of taking annual leave, there are two issues I think raised on the last occasion about annual leave. One was the accrual progression of annual leave, well we say two things about that. Firstly, the NES would override any provision that did not allow for the accrual firstly. Secondly, in any event we deal with that in our proposed CSR Award at clause 27.1.6. The issue about not unreasonably refused again that's an NES issue that overrides anything but is also dealt with in our proposed award of 27.2.1.

PN97

The annual leave loading is we would say again dealt with in clause 16.9 of the old award. It is dealt with in clause 28 of the proposed awards, and our position is that when one looks at item 4(5)(d) there are significant positive terms and conditions beneficial to employees covered by the enterprise instrument at present, which are in some cases improved and clarified in the 2015 instrument.

PN98

The other items in 4(5) deal with the likely impact on persons covered by the enterprise instrument and the Commission will note we've made submissions about that. Item 4(5)(g) refers to the views of the persons covered by the instrument. The Commission will have noted there has been a plebiscite. There is a strong record of positive views in that plebiscite from relevant employees. There's also consent from the registered organisation which represents employees. Our position is that the position of employees has and should have some significance in these proceedings as it has always had in industrial matters, under industrial law. That's what we were supplementing about item 4(5).

PN99

With regard to shifts, on occasions those employees performed shifts.

PN100

SENIOR DEPUTY PRESIDENT ACTON: Who were those employees?

PN101

MR PARRY: Factory managers and WHS managers.

PN102

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN103

MR PARRY: But we're not standing here saying they performed them permanently.

PN104

SENIOR DEPUTY PRESIDENT ACTON: Are you saying they're shift workers?

PN105

MR PARRY: No, I'm saying on occasions they work shifts.

PN106

SENIOR DEPUTY PRESIDENT ACTON: Well that's unusual isn't it? You're either a shift worker or you're not a shift worker.

PN107

MR PARRY: Well we're not thinking - I'm not asserting they're shift workers. I'm saying that on occasions they work shifts.

PN108

SENIOR DEPUTY PRESIDENT ACTON: What, day shift?

PN109

MR PARRY: No, they would come in for a night shift and work night shifts or on shifts on the weekend. But we're not asserting they're shift workers in - - -

PN110

SENIOR DEPUTY PRESIDENT ACTON: So do they get the shift penalty when they do that?

PN111

MR PARRY: Well I'm assuming, again without getting instructions on it, that they have a rate which comprehends the payment of those such award rates at that level. That they are paid an amount - - -

PN112

SENIOR DEPUTY PRESIDENT ACTON: I don't think you should make that submission if you haven't got instructions on it.

PN113

MR PARRY: I'll get instructions.

PN114

SENIOR DEPUTY PRESIDENT ACTON: Because we might rely on it.

PN115

MR PARRY: I'm not going to say anything that I would not have confidence but I take your Honour's point that what I assert might get listened to on occasions.

PN116

DEPUTY PRESIDENT HAMILTON: All the time, Mr Parry, all the time.

PN117

MR PARRY: It's not an assumption I walk in here making actually, if the Commission pleases. Rather than do this, perhaps at some stage we can have a five minute break, just so I can get a proper set of instructions rather than doing it as we were discussing.

PN118

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN119

MR PARRY: Then there's section 134, which are the other set of considerations. We have dealt with this in paragraph 68 onwards of our most recent submissions. I don't repeat those to the Full Bench. Clearly, the position with regard to such items as collective bargaining has been dealt with by the court or some guidance has been given. The focus is on fairness and the relevance of the safety net. There are various considerations set out that we've dealt with.

PN120

SENIOR DEPUTY PRESIDENT ACTON: Mr Parry, your submissions on the various sub-items in section 134, how did your submissions this time differ from those you gave on the previous occasion, in respect of the sub-items?

PN121

MR PARRY: How did they differ?

PN122

SENIOR DEPUTY PRESIDENT ACTON: Mm-hm.

PN123

MR PARRY: If the Commission would just excuse me because there were the initial set of submissions where there's no specific reference to section 134. There is reference to the safety net in Conditions in paragraph 13.

PN124

SENIOR DEPUTY PRESIDENT ACTON: Where's this?

PN125

MR PARRY: In the first set of submissions.

PN126

SENIOR DEPUTY PRESIDENT ACTON: Yes, paragraph?

PN127

MR PARRY: Thirteen.

PN128

SENIOR DEPUTY PRESIDENT ACTON: This deals with the sub-items?

PN129

MR PARRY: No, it doesn't.

PN130

SENIOR DEPUTY PRESIDENT ACTON: You didn't deal with the sub-items last time?

PN131

MR PARRY: Well they're certainly not in our first set of submissions in specific terms, and there was then the oral submissions made which again I don't remember section 134 being there last time.

PN132

SENIOR DEPUTY PRESIDENT ACTON: No. So these would be new submissions you're making on the sub-items.

PN133

MR PARRY: Yes.

PN134

SENIOR DEPUTY PRESIDENT ACTON: Which weren't addressed last time.

PN135

MR PARRY: Well if they were addressed they were not addressed specifically. They were addressed in a generic broad way.

PN136

SENIOR DEPUTY PRESIDENT ACTON: Must like the decision.

PN137

MR PARRY: Sorry?

PN138

SENIOR DEPUTY PRESIDENT ACTON: Must like the decision.

PN139

MR PARRY: Yes, that's probably fair.

PN140

SENIOR DEPUTY PRESIDENT ACTON: Was that pointed out to the court?

PN141

MR PARRY: The submissions that were made last time about section 134 - - -

PN142

SENIOR DEPUTY PRESIDENT ACTON: No, that you didn't actually address that matter before the tribunal, the sub-items?

PN143

MR PARRY: I've read the transcript of the Full Court proceedings and I don't recall that. I haven't read the submissions that were made, I can't - I wasn't involved so I can't help. If it didn't happen and the submissions made on the last occasion, that's unfortunate. We've attempted in this proceeding to in a way put everything that we consider appropriate before the Full Bench so that it can make a decision with the best material we can put before it. If the court wasn't told that or the court didn't ask about it, they're unfortunate matters but we - - -

PN144

SENIOR DEPUTY PRESIDENT ACTON: Yes, it might go under discretion I suppose.

PN145

MR PARRY: Sorry?

PN146

SENIOR DEPUTY PRESIDENT ACTON: It may have gone to discretion.

PN147

MR PARRY: On the last occasion or in the court?

PN148

SENIOR DEPUTY PRESIDENT ACTON: In the court.

PN149

MR PARRY: I see. It might have, it might. It's difficult to speculate about what the Full Court does on judicial review matters as the Full Bench so constituted here would be well aware. Sometimes discretionary matters are good and sometimes they're bad. I'm not sure I can add a lot to that debate.

PN150

SENIOR DEPUTY PRESIDENT ACTON: Beyond what you've put in your written submissions, what have you got to say about the sub-items in section 134?

PN151

MR PARRY: Well we have put in a modified and detailed safety net table which we're referred to, and that attempts to put all the material before the Full Bench on the comparisons that we consider are appropriate for that. I'm sure the Full Bench will look at that, take that into account. I don't propose going through each of those items unless the Full Bench - - -

PN152

SENIOR DEPUTY PRESIDENT ACTON: You don't need to add beyond what you've put if you've got nothing further to add.

PN153

MR PARRY: No, we've gone through it in a bit of detail and we submit that those factors would generally support us again. They're either neutral factors or ones that support us. Yes, if there's nothing further I'm happy to assist the Commission further. Clearly, there's a number of a complications in this matter and we're happy to assist further with any information. I'll take instructions as the Commission has sought. We've given fairly detailed submissions regarding the further directions. Unless I can assist further.

PN154

SENIOR DEPUTY PRESIDENT ACTON: Mr Parry, I raised the minimum wages objective. That's a matter to which we were to have regard under item 6 of schedule 6 of the Transitional Act. I'm not aware of you having made any written submissions on that, either on the past or on this occasion. It may be a matter you want to put written submissions on, Mr Parry.

PN155

MR PARRY: Yes. Well, it's probably fair that we put in something short in writing.

PN156

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN157

MR PARRY: Rather than me attempt to ad hoc deal with that, if that's satisfactory. We can do that fairly quickly.

PN158

SENIOR DEPUTY PRESIDENT ACTON: At the same time you should deal with the objects of the Act.

PN159

MR PARRY: Yes. We can make a short submission about the objects of the Act as well.

PN160

SENIOR DEPUTY PRESIDENT ACTON: And anything else that you think we should address.

PN161

MR PARRY: We will make absolutely sure, as best I can say, that we put everything before you that you are required to take into account.

PN162

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Mr Parry, in terms of the proposed award, am I right in understanding that the differences between the proposed award now, and that you finally proposed on the last occasion, the changes is to the name of the employer, the changes to the employees that would be covered, that is, it's now all salaried employees, except those of the joint venture not previously employed as salary employees by CSR?

PN163

MR PARRY: Yes.

PN164

SENIOR DEPUTY PRESIDENT ACTON: There's been a change to the rates at levels 1 and 2 adjusting for the last annual wage adjustment. And there's been a decrease in the rate at levels 3 to 5. Are they the only changes that have been made?

PN165

MR PARRY: Yes, I assume 4(b) coverage I think your Honour mentioned that.

PN166

SENIOR DEPUTY PRESIDENT ACTON: The coverage, yes.

PN167

MR PARRY: Yes.

PN168

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN169

MR PARRY: I think your Honour mentioned that. We ‑ ‑ ‑

PN170

SENIOR DEPUTY PRESIDENT ACTON: The change to the name of the employer and change to the employees.

PN171

MR PARRY: Yes. Those are the changes.

PN172

SENIOR DEPUTY PRESIDENT ACTON: Yes. Now, in your submissions, you talk about a facilitative approach to drafting or scope in the proposed award. I'm unclear what you're saying here. Are you talking about a facilitative approach to the coverage or are you talking about a facilitative approach to the actual conditions you propose?

PN173

MR PARRY: I'm not quite sure where your Honour is referring to, but I would think, and I'm pretty confident, that we would be talking about a facilitative approach to the coverage.

PN174

SENIOR DEPUTY PRESIDENT ACTON: It's the response submissions, paragraph 4, P3. What I've marked as P3:

PN175

Should the Full Bench hold any concerns as to the drafting or scope of the proposed modern enterprise awards it's respectfully requested this be brought to the attention of the parties so this can be constructed and appropriately addressed before any modern enterprise award is made, such a facilitative approach consistent with Aboriginal legal rights.

PN176

MR PARRY: Yes. Well, that particular decision dealt with well, I'll just read what it said in the Aboriginal rights ‑ ‑ ‑

PN177

SENIOR DEPUTY PRESIDENT ACTON: I've read it, Mr Parry.

PN178

MR PARRY: You've read it. Yes.

PN179

SENIOR DEPUTY PRESIDENT ACTON: I just wonder how that stands with us trying to make a decision about whether we should make a modern enterprise award if you're proposing that the terms of the modern enterprise award change?

PN180

MR PARRY: No, we don't propose it changes. We put up what we want made.

PN181

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN182

MR PARRY: We've only put those words in there if there was one or two matters ‑ ‑ ‑

PN183

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN184

MR PARRY: ‑ ‑ ‑that stood between the making of that, and are of concern of the Full Bench, we would want the opportunity to say, well, we would propose an amendment.

PN185

SENIOR DEPUTY PRESIDENT ACTON: Okay.

PN186

MR PARRY: To satisfy concerns the Full Bench has. But what we're asking for is what we've put up.

PN187

SENIOR DEPUTY PRESIDENT ACTON: Thank you. One other matter you might address in writing is because I don't think it's covered in the material. If it is you might point me to it. Of the employees who'd be covered by the five other modern awards, or other modern awards, but for the proposed award, what classification levels in the proposed award they would fit into, and how many in each category? So there's around 700, maybe 800 of them. How many at each level in the proposed awards classification structure is there?

PN188

MR PARRY: I don't think in the time available we've carried out that exercise.

PN189

SENIOR DEPUTY PRESIDENT ACTON: No, I haven't seen it.

PN190

MR PARRY: No.

PN191

SENIOR DEPUTY PRESIDENT ACTON: No. Though I can't recall seeing it anyway, so, you know, like, is there 800 in level 1. Is there ‑ ‑ ‑

PN192

MR PARRY: There is, we just didn't have the time to make that assessment exercise.

PN193

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN194

MR PARRY: If that's of assistance we can do it, but we're not going to do that within a day or two. It would take a little time. Not a long time.

PN195

SENIOR DEPUTY PRESIDENT ACTON: How long do you think it might take? End of the week would seem ‑ ‑ ‑

PN196

MR PARRY: A week. We can do that within a week.

PN197

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN198

MR PARRY: Yes.

PN199

SENIOR DEPUTY PRESIDENT ACTON: Okay. Thank you.

PN200

MR PARRY: Perhaps the question of shifts and the working of shifts might be something that we can do in the same timeframe.

PN201

SENIOR DEPUTY PRESIDENT ACTON: Yes. Certainly.

PN202

MR PARRY: If that's satisfactory to the Full Bench.

PN203

SENIOR DEPUTY PRESIDENT ACTON: Yes. That's fine. The other thing you should do when you're putting them in the levels, you've helpfully provided information about the range of remuneration at each level. If you could provide the range of remuneration for those 800-odd employees that I've just asked about.

PN204

MR PARRY: Yes.

PN205

SENIOR DEPUTY PRESIDENT ACTON: Because, as I understand it, at the moment the range covers those who would be so-called award free.

PN206

MR PARRY: Well, not so-called. They would be, we would say, but I'm saying ‑ ‑ ‑

PN207

SENIOR DEPUTY PRESIDENT ACTON: Well, that's your submission.

PN208

MR PARRY: That's our submission.

PN209

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN210

MR PARRY: Of course, yes. We'll do that.

PN211

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Thank you, Mr Parry.

PN212

MR PARRY: If your Honour pleases.

PN213

SENIOR DEPUTY PRESIDENT ACTON: Mr Keats?

PN214

MR KEATS: Your Honour, I'll be relatively short. My friend, Mr Parry, has covered most of the territory. Naturally the Association supports and adopts the submissions of CSR Limited in this matter. In relation to the material before the Full Bench, I note in the list that he took you to he didn't refer to the letter from Australian Industry Group of 22 October 2014. The Association relies on that submission as well in support of making the application. You'll note that's made in the context that not only they are repeat counsel but in addition their membership have employees that work in the industries that otherwise CSR operates. So it is of use when considering item 45(d) of the factors that the Full Bench must address.

PN215

In relation to a number of the factors, particularly 45(a), (d) and (e), we would submit that the material before the Full Bench has remained unchanged and therefore we consider that the similar findings that the Full Bench made last time should continue to be made, and find favour in supporting the application on this occasion.

PN216

One matter that I might address in a little bit more detail is 45(f), which is the issue of impact, which was of most concern on the last occasion, being the central factor that led to the dismissal of the application. The Full Bench might be aware of the decision involving the Australian Public Service Award 1998 that came down within a month of the decision in this matter. That dealt with the issue of impact in a slightly different way, both to the way this Full Bench dealt with it, but also slightly different to the submissions, in that, it formed the view that really when you're considering impact you're looking at what becomes the BOOT for the purposes of bargaining rather than anything else, and so when you look at the submissions, and the material put on, it's a better BOOT or better starting point for our members than if we started from the modern awards. Yes, there's some up and down, and that's dealt with in the written material, but overall it's more beneficial to those employees, so there's a slightly higher starting point for the BOOT. So, we'd say for those reasons that if the award wasn't made, there's an impact there that could be avoided by the making of this award for the purposes of that ‑ ‑ ‑

PN217

SENIOR DEPUTY PRESIDENT ACTON: Do you say for all employees, do you?

PN218

MR KEATS: Pardon?

PN219

SENIOR DEPUTY PRESIDENT ACTON: Do you say for all employees?

PN220

MR KEATS: I say for all employees. You'll recall, and if I could try and foreshadow where you're going, your Honour, that in the public sector there was a concern about the senior executive service.

PN221

SENIOR DEPUTY PRESIDENT ACTON: Right.

PN222

MR KEATS: But in that case only five conditions applied. In this case all but three conditions apply to the very senior employees of CSR that are otherwise covered by the instrument. So you do have a large impact on a good portion of employees. Unless there's anything further, I would simply submit that I adopt those submissions of Mr Parry. I will work with Mr Parry and CSR about some joint submissions on the matters raised, and ask that the application be granted.

PN223

SENIOR DEPUTY PRESIDENT ACTON: Mr Keats, have you done the exercise of comparing how the employees would be under modern awards compared to the proposed award?

PN224

MR KEATS: We've joined in the material that's the I think it's attachment 5.

PN225

SENIOR DEPUTY PRESIDENT ACTON: No, no, no, that's not the question I asked.

PN226

MR KEATS: So I was ‑ ‑ ‑

PN227

SENIOR DEPUTY PRESIDENT ACTON: For a BOOT type exercise. For those employees who would otherwise be covered by modern awards.

PN228

MR KEATS: No, I've only done the line by line that's before you. I haven't done a BOOT type exercise.

PN229

SENIOR DEPUTY PRESIDENT ACTON: I see. Thank you.

PN230

MR KEATS: Unless there's anything further I'd ask the application be granted.

PN231

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Anything else, Mr Parry?

PN232

MR PARRY: No, your Honour.

PN233

SENIOR DEPUTY PRESIDENT ACTON: Okay. Well, the submissions that you're going to put in writing you'll provide, Mr Parry, by 4 pm on 29 September.

PN234

MR PARRY: As your Honour pleases.

PN235

SENIOR DEPUTY PRESIDENT ACTON: Very well. We'll reserve our decision and have regard to the material that's file as well as anything further that's put in writing by 29 September. We'll now adjourn.

ADJOURNED INDEFINITELY [9.13 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 UPDATED STATEMENT OF AGREED FACTS DATED 29/07/2014 PN9

EXHIBIT #P2 SUBMISSIONS OF CSR LTD DATED 11/09/2015.................. PN27

EXHIBIT #P3 RESPONSE FROM CSR TO THE FURTHER DIRECTIONS AND VARIOUS APPENDICES MADE 14/09/2015......................................................................... PN30

EXHIBIT #P4 PROPOSED CSR STAFF MODERN AWARD 2015............... PN32

EXHIBIT #P5 EXPERT REPORT OF BRIAN LACY..................................... PN32