AM2014/70, Transcript of Proceedings [2015] FWCTrans 593 (21 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1052546

VICE PRESIDENT HATCHER

AM2014/70

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/70)

Concrete Products Award 2010

Sydney

10.02 AM, THURSDAY, 26 MARCH 2015

PN1

THE VICE PRESIDENT: Yes, I'll take appearances please. Mr Harmer?

PN2

MR M HARMER: If it please the Commission, Harmer, initial M. I seek permission to appear for Brickworks Limited and the Concrete Masonry Association of Australia.

PN3

THE VICE PRESIDENT: Has the issue of permission been dealt with before?

PN4

MR HARMER: From my understanding it has, at least with Brickworks Limited, your Honour. I seek permission if it hasn't been granted for the Association, thank you.

PN5

THE VICE PRESIDENT: Alright, just hold on a second. Mr Scott?

PN6

MR SCOTT: Your Honour, I seek permission to appear for Australian Business Industrial and the New South Wales Business Chamber. It was my understanding as of yesterday that Justice Ross had granted permission in I think, all award matters.

PN7

THE VICE PRESIDENT: Yesterday.

PN8

MR SCOTT: Yes.

PN9

THE VICE PRESIDENT: I don't think it was that broad.

PN10

MR SCOTT: Alright, okay. I thought I'd take a chance, but.

PN11

THE VICE PRESIDENT: Ms Bhatt, you appear for the AI Group?

PN12

MS BHATT: If it pleases, your Honour, for AI Group.

PN13

THE VICE PRESIDENT: Mr Crawford for the AWU?

PN14

MR CRAWFORD: Yes, your Honour.

PN15

THE VICE PRESIDENT: Mr Maxwell for the CFMEU?

PN16

MR CRAWFORD: Yes, your Honour.

PN17

THE VICE PRESIDENT: Is there any objection to the application for permission by lawyers to appear?

PN18

MR MAXWELL: No.

PN19

THE VICE PRESIDENT: Alright, I'll grant those applications to extend necessary for the purposes of today and if need be, we'll visit the matter at the hearing, we'll do so.

PN20

The purpose of today is to deal with further directions for the hearing of this matter. Can I take it that all the submissions and evidence have now been put on?

PN21

MS BHATT: Your Honour, it might be appropriate for me to address you on that now.

PN22

THE VICE PRESIDENT: Yes, right.

PN23

MS BHATT: With respect to the AWU's claim, we understand that this is a fairly discrete issue and one that we thought we would be able to deal with quite briefly. Unfortunately, quite frankly, it has fallen through the cracks and we unreservedly apologise to the Commission and to the other parties that we haven't yet filed submissions in response to that claim.

PN24

Part of the issue that has arisen is, essentially looking back to the history of the provision and that is a process that has taken us a bit longer than we had initially anticipated. Cognisant of the fact that we failed to comply with the directions of the Commission, but I wonder if your Honour would indulge us and afford us perhaps a further two weeks to put on some brief submissions in response to the AWU's claim?

PN25

THE VICE PRESIDENT: Is it just submissions, is it?

PN26

MS BHATT: Yes, your Honour.

PN27

THE VICE PRESIDENT: So a further two weeks. Is there any objection to that Mr Crawford?

PN28

MR CRAWFORD: No, your Honour.

PN29

THE VICE PRESIDENT: I'll issue a direction to that effect.

PN30

MS BHATT: Thank you, your Honour.

PN31

THE VICE PRESIDENT: Beyond that issue, is the matter ready for hearing?

PN32

MR HARMER: Your Honour, if I might just address on that issue.

PN33

THE VICE PRESIDENT: On which issue?

PN34

MR HARMER: Whether the matter's ready for hearing. Relating to that, issues of evidence and submissions. Your Honour, given that permissions that's just been granted, I was going to respectfully raise on behalf of my clients, the issue of possible submissions and evidence in reply. The unions, to their commendation, have put on significant submissions and evidence and there's a great disparity between the parties, perhaps not surprisingly. I believe the Commission may be assisted by evidence in reply and submissions in reply just in terms of defining some of the issues.

PN35

THE VICE PRESIDENT: Is this in respect of the Brickworks application, is it?

PN36

MR HARMER: That's correct. As supported by the CMAA, each of those parties have put on their own evidence and submissions to date. Your Honour, what came up in one of the earlier corrections hearings in this matter, at least before his Honour Watson SDP, was the issue of inspections and that issue has been further raised by the unions in their respective submissions and evidence.

PN37

Your Honour, I was seeking to raise with the Commission, the fact that on the face of the evidence, at least the case put by my clients compared to that put by the union, there's a vast disparity in the purported disabilities applicable.

PN38

THE VICE PRESIDENT: Is this on the industry allowance issue, you're talking about?

PN39

MR HARMER: That is correct, your Honour. The disability is applicable in the industry allowance area and your Honour, it raises to our minds some threshold issues in that the CFMEU has pressed in its submissions, that the Commission should adopt the same broad averaging approach as applied in the 1976 case which first introduced the industry allowance through a Full Bench decision into this particular industry.

PN40

Your Honour, since then there's been considerable water under the bridge both in terms of we press improvement in the conditions in the industry and also principles attaching to the setting of allowances of this kind and specifically the notion that disability allowances should not be paid, unless the disability has actually been incurred by the relevant employees.

PN41

In that context, the issue of averaging that was at first adopted in this industry and its applicability in the face of the disparity amongst the parties as to evidence under the modern awards objective, is something we think would be a useful matter to transverse before the Full Bench by way of guidance before we go off to inspections. In that, we think if there's going to be inspections to determine disability allowances, it should be for a specific purpose and properly guided in principle.

PN42

Your Honour, one of our fall back positions is that to the extent that there remain disabilities that are relevant in this industry, arguably if there's a great disparity, those disability allowances should be disaggregated from the industry allowance and put into specific individual allowances which could only be paid when incurred by a particular employee and employer in the industry.

PN43

Inspections for that form of outcome would be different in our respectful submission to inspections trying to average across the entire industry a particular allowance. So to our mind, your Honour, what we wanted to raise, apart from the utility of evidence and submissions in reply in further defining the issues, was whether it was not worthwhile dealing with this issue of averaging in the face of great disparity in the evidence as a matter of principle so that the future issue of inspections and evidence in the matter could be further guided before we head down a path which could be quite extensive in terms of the extent of inspections that have been commended by the CFMEU, in particular.

PN44

That's the issue I wanted to canvass, your Honour, and I'm happy to take questions or to further discuss that and I apologise, I haven't had a chance to canvass it with the parties prior today. That's my fault, your Honour.

PN45

THE VICE PRESIDENT: What do you want, a preliminary hearing on the question of whether averaging is permissible in an industry allowance?

PN46

MR HARMER: The extent to which it's permissible in the face of the specific evidence that's been put on today, your Honour. So it would be an argument on the papers accepting at its highest, the evidence from all parties to date, but the issue is the extent of disparity and whether given movements in principle, dealing with the seeking of allowances and in the context of the modern award's objective, the same sort of averaging as applied back in the 70's and we acknowledge that it applied then, can be properly applied as a matter of principle in this case. We say that's important to determine whether disaggregation is necessary and the configuration and the nature of inspections that would have to be provided by the Commission.

PN47

THE VICE PRESIDENT: I don't know how you can do that where there is contested evidence. That is, if there was agreed evidence about what the facts were, then you might be able to have a debate of that nature in isolation, but circumstances where there seems to be hotly contested evidence about what the conditions actually are, I don't know how you would practically do that.

PN48

MR HARMER: What I'm raising, your Honour, is that for the purposes of that guidance, we'd accept at its highest, all of the evidence. I take on board that there is certainly a dispute about what applies across the industry. I see that submissions of the unions at the level of concession, that through safety and other requirements there have been improvements in conditions. They seem to contend that on some sites in particular, that is not the case. They seem to concede that on other sites, it is, and it's that issue of disparity even in the face of the union's case that we want to pursue before we enter into what could be an extensive survey by way of inspection of conditions applicable across the entire industry.

PN49

THE VICE PRESIDENT: You're assuming that there has been some decision to have any inspections.

PN50

MR HARMER: I'm not making that assumption, with respect, your Honour, and I acknowledge that that's - - -

PN51

THE VICE PRESIDENT: I am yet to be persuaded why this is a matter that would require inspections?

PN52

MR HARMER: Sorry, your Honour?

PN53

THE VICE PRESIDENT: I would have to be persuaded as to why this matter would require inspections.

PN54

MR HARMER: I acknowledge that, your Honour, it's just that both sides of the fence have raised inspections as a way forward and certainly that's how the allowance was first set. The unions in their submissions have specifically pressed for inspections, so in anticipation of that issue. We don't, from our point of view, strongly resist inspection, we just say it has to be targeted and that there are certain issues of principle that would have to be sorted first. But your Honour, I'm not intending to pre-empt that decision properly to be taken by the Commission on the appropriate basis forward.

PN55

THE VICE PRESIDENT: To the extent that you want to put on evidence and submissions in reply, how long will that take?

PN56

MR HARMER: I was going to seek the indulgence of four weeks, your Honour, if possible. May it please the Commission.

PN57

THE VICE PRESIDENT: Alright, so just to be clear, you don't yourself at this stage, as applicant, seek inspections to support your case? That is the extent inspections are raised, it's responsive to something the unions have put on, is it?

PN58

MR HARMER: Your Honour, we initially raised inspections earlier on with the matter progressing through the Commission and we acknowledge that inspections would seem to be appropriate. It's just the extent of them and the nature of them and the purpose of them that was being pressed by the unions and of course, that's to raise this issue. If it please the Commission.

PN59

THE VICE PRESIDENT: Before you sit down, as you may be aware as part of the award modernisation process, there is a five person Full Bench that's been assembled to deal with the issue of penalty rates in a number of contexts. That involves hearings which go broadly speaking, towards the end of the year. Even with the additional matters, that might need to be put on, your client's application would likely be heard and determined before that time.

PN60

Have you given any thought as to whether that's the appropriate course, that is, to the extent that your application does deal with issues involving working penalty rates, whether it should be heard and determined as a discrete matter before the penalty rates case or whether it might better to be advised to wait for the outcome of the penalty rates case? Not suggesting that it will necessarily say anything but a general application, but there's a possibility that it might.

PN61

MR HARMER: Yes, thank you, your Honour, we did at an earlier directions hearing before President Ross raise the prospect of this case falling back and in the wake of that penalty rates matter, in circumstances where, as we would respectfully put it, our case does not directly challenge penalty rates per se, as opposed to flexibility that might move around them. I appreciate that the unions say well, it's the same thing, but we would say that there's a bit of a distinction between some of the other cases being pressed to abolish penalty rates and our case which introduces, or attempts to introduce flexibility that would avoid them.

PN62

We're in the Commission's hands, your Honour. I certainly think this matter is going to take some time and it may be that if there's going to be inspections, they could be usefully progressed while the penalty rates matter took its course and that any hearing in this matter would benefit of those inspections and dealing with all three issues could perhaps take place in the wake of that penalty rates case.

PN63

THE VICE PRESIDENT: That would be effectively talking early next year.

PN64

MR HARMER: Yes, your Honour, I appreciate that. I must acknowledge though, your Honour, when we raised this earlier with President Ross, he was quick to indicate that we were not being allocated into that penalty rates bracket, if that makes sense, your Honour.

PN65

THE VICE PRESIDENT: I understand that. Alright, Mr Scott?

PN66

MR SCOTT: Your Honour, I don't have too much to add in relation to the Brickworks claim. We filed some reply submissions in relation to the AWU claim. Other than that, in terms of programming for the matter, we're in the Commission's hands.

PN67

THE VICE PRESIDENT: Ms Bhatt, do you have anything further to add?

PN68

MS BHATT: No, nothing further to add, your Honour.

PN69

THE VICE PRESIDENT: Mr Crawford?

PN70

MR CRAWFORD: Your Honour, we're not opposed to Brickworks and the CMAA having four weeks to file submissions, and maybe evidence in reply. In terms of inspections, we're not opposed to inspections occurring. Wasn't planning to actively agitate for the Commission to do it, but perhaps I would have thought that - and I think I refer to this in my submissions, that if the Commission was being minded to potentially remove such a longstanding condition, it would seem that it may be appropriate for inspections to occur, given the history of how it came about and how significant that decision would be, but that's all I really wanted to say on that issue.

PN71

THE VICE PRESIDENT: Well there won't be inspections unless someone specifically asks for them and identifies what they want to do. Beyond the general observations that have been made at this point, I don't see that there's been an actual proper application for inspection, so they won't happen, unless someone actually makes an application.

PN72

MR CRAWFORD: Perhaps your Honour, would an option be if you do actually end up giving Brickworks the four weeks, that we have discussions with them in that period, to see if we can reach agreement on whether inspections should occur and if they are, where that would be, and then we can come to the Commission maybe with a joint position.

PN73

In terms of this penalty rate issue, we're largely in the Commission's hands. I mean it does appear that what's being asked for here is perhaps slightly different to the other penalty rates matters. In think in those cases, there are effectively penalty rates in those awards and the applicants are trying to reduce them. Here, Brickworks and their supporters basically are just asking for flexibility to have ordinary hours on the weekend and obviously part of the claim is also removing penalty rates in their entirety. So there may be a distinction there, but we, as I said, we're largely in the Commission's hands, we don't have a large preference either way.

PN74

THE VICE PRESIDENT: Again, unless someone positively asks for the hearing to be deferred until after the outcome of the penalty rates case is known, it will be listed when it is ready to be heard which will be presumably around the middle of this year.

PN75

MR CRAWFORD: I certainly wasn't going to ask for that. That was all I had, your Honour.

PN76

THE VICE PRESIDENT: Thank you, Mr Maxwell?

PN77

MR MAXWELL: Thank you, your Honour. Your Honour, we would press for inspections. We do so on the basis that the evidence filed on behalf of Brickworks consists of, I recall, four witness statements. Three of those statements are by employees of Brickworks in regard to the facilities that are operated by Brickworks, mainly in regard to the cement brick manufacturing plants and also in regard to the concrete panel manufacturing plant.

PN78

The evidence in regard to the concrete precast plant is contested by the evidence of Mr John Duggan who is an organiser of ours in Victoria. Essentially, the employee witnesses suggest that these disabilities are no longer prevalent in terms of the cement brick manufacturing plants and in regard to the precast plant, they say are less significant than they used to be. Whereas our view is that no, they're still prevalent.

PN79

Where you have such conflicting evidence, we believe that inspections would assist the Commission in arriving at a determination of whether those disabilities do in fact still remain. The other part in regard to inspections is that the evidence of Brickworks and CMAA, and they're trying to say that that's the industry, is limited to the cement brick manufacturers and the precast yards whereas the coverage of this award is a lot wider than just those two areas which is the point we make in our submission. So, we believe it is necessary to consider the disabilities in those other areas where there's no evidence from Brickworks in regard to those operations.

PN80

We note that in the 1976 case the Commission conducted inspections on and agreed the number of locations. We don't believe we would need the same number of locations that were dealt with in 1976, but we would suggest that there be an agreement between the parties on the locations to be inspected and we believe that it may be possible to come up with that agreed list during the four week period that Brickworks has to file their submissions. On that basis, we would then suggest a further mention in four weeks' time so that we can address the Commission on that point.

PN81

We also think that the evidence in reply from the employer, it may be that after the time that Brickworks have filed their evidence and reply submissions because that can also then assist the parties in working out the extent to which inspections are required.

PN82

In regard to the issue of whether this matter be deferred until the penalty rates matter is determined, we have no fixed view on that and are in the hands of the Commission, but we are prepared to run our case now independent of that matter. If the Commission pleases.

PN83

THE VICE PRESIDENT: Can I take it from the lack of the use of a video facility that Sydney would be the preferred location for the hearing?

PN84

MR HARMER: I think from our perspective it would be.

PN85

THE VICE PRESIDENT: Has there been any thought given as to the length of time, leaving aside any issue of inspections, how long the hearing would take?

PN86

MR HARMER: I must admit, I was anticipating awaiting the outcome of the inspections issue, which might obviate the extent of other evidence that needs to be tested and also it might impact on submissions in other issues, so your Honour, I must acknowledge we hadn't made a precise estimate at this time.

PN87

THE VICE PRESIDENT: It seems to me that the case is not yet ready for hearing, so it would be premature to set the matter down. I will formalise this later in the day, but in general terms I will grant AIG's application for a further two weeks to put on submissions in respect of the AWU's issues.

PN88

I will also grant - is it just Brickworks or Brickworks and the CMAA?

PN89

MR HARMER: Both entities.

PN90

THE VICE PRESIDENT: Both those entities four weeks to put on evidence and submission strictly in reply to the evidence and submissions of the AWU and the CFMEU with respect to the Brickworks' application.

PN91

I will also issue a direction that following that event, I will allow the parties two weeks to file in writing a document which sets out any inspections they propose, or they ask the Commission to conduct and an estimate of the time for the hearing and available dates for the hearing of the matter. If any party wishes the hearing to be deferred until after the penalty rates case outcome is known, then they should file an application to that effect.

PN92

Obviously the parties should confer about all those matters and if there can be agreement about those matters, that would be desirable, but in the absence of agreement, if each party can file its own submissions or application about those matters and it will be determined.

PN93

Once all those matters have been received by the Commission, there'll be a further directions hearing at a date to be advised. I anticipate, unless anyone tells me otherwise, that on that date, the Commission should be in a position to treat the matters ready for hearing and set down hearing dates and any inspection dates that may be required.

PN94

Is there anything else that needs to be dealt with at this stage?

PN95

MR HARMER: Thank you, may it please the Commission.

PN96

THE VICE PRESIDENT: Thank you for your attendance, we will now adjourn.

ADJOURNED INDEFINITELY                                                        [10.24 AM]