AM2016/15, Transcript of Proceedings [2019] FWCTrans 239 (27 August 2019)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1057231

JUSTICE ROSS, PRESIDENT

AM2016/15

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2016/15)

Joinery and Building Trades Award 2010

Mobile Crane Hiring Award 2010

Sydney

2.02 PM, FRIDAY, 23 AUGUST 2019

PN1

JUSTICE ROSS: Can I have the appearances, please. Firstly, in Sydney?

PN2

MR S MAXWELL: If the Commission pleases, Maxwell, initial S, for the CFMMEU (Construction & General Division).

PN3

JUSTICE ROSS: Thanks, Mr Maxwell.

PN4

MS R SOSTARKO: If it pleases, your Honour, Sostarko, initial R, for Master Builders Australia.

PN5

JUSTICE ROSS: Thank you. And in Brisbane?

PN6

MS L REGAN: If it pleases the Commission, Regan, initial L, for Housing Industry Association.

PN7

JUSTICE ROSS: Okay. Thanks, Ms Regan. It's probably easiest if everyone speaks just keep your seat.

PN8

So this is about the National Training Wage Schedule for Mobile Crane Hiring and the Joinery Awards. As I understand the position, broadly, the CFMMEU wants it, the rest of you don't. To the extent that it goes in, there's also a dispute about what goes in.

PN9

Ai Group has sent an email, they're caught up in other matters. It's fair to say I don't think they have a strong view and it's really what's the best way of resolving this matter.

PN10

When we first started this exercise the Commission, at that early stage said, "Look, what we're trying to do is reduce some of the duplication in awards". So a standard National Training Wage Schedule went into the Miscellaneous Award. It was captured by cross-referencing in most but not all other awards.

PN11

At that stage we also said, "Look, if parties want to keep it because it serves some utility, or keep a subset of it that's relevant to their particular industry then that's what we would look at doing".

PN12

Since then we've had nothing but trouble really, because there've been some applications to actually bury the existing schedule, in a substantive way. There have been other applications which are really by way of updating because particular modules have changed and all of that is appropriate and should be done.

PN13

In relation to this one, the initial thought was that we'd publish a draft determination setting out your respective views, but that had so many track changes in it that I don't think that would be helpful to you. Nor do I particularly want to arbitrarily set down some sort of elaborate process for resolving the issues between you.

PN14

Without prejudice to the employer position of opposing a separate clause for the moment, I wanted to raise whether you could give consideration to a discussion between the three organisations, a joint report as it were, that if the schedule is to be retained this is what you agree about and this is what's in dispute.

PN15

Partly because of the history of this matter and the multiple - there have been - well, Mr Maxwell has been sort of a constant, but other people have come in and out and submissions have been filed at different times, and I just want to make sure that we are focused on the right issues, that's all, and that everyone has a fair opportunity to say what they want to say about it.

PN16

So what I was going to suggest is a process that I would leave to the three organisations to seek to reach an agreed report will, as I say, set out what's between you and what's not contested, in relation to the issues that are between you, then also agree about how you want us to resolve those.

PN17

That is, do you want an opportunity to file submissions and reply, et cetera, to address those issues in dispute? Would you seek an oral hearing as well? Rather than have us determine something that may not suit you because my difficulty is I don't know the depth of the concern and the extent of the change that's being sought. Until we know that, I can't usefully add anything about process and I think that's sort of best done in consultation between the three of you.

PN18

Look, that was it, really. If that proves too difficult we'll put out the usual set of directions, we'll have an oral hearing and everyone can say what they want to say, but I'm conscious that each of you are involved in a number of hearings in other matters and I don't really want to add to the list, if I can avoid it.

PN19

So let's just go around the table, see what you think and I don't think this is something where there's a particular need for the matter to be resolved by the end of September. But, having said that, I don't want to lose sight of it and I'd want to look at a timeframe where you get something, back in six to eight weeks, that lets us know where we're going.

PN20

Mr Maxwell, do you want to go first?

PN21

MR MAXWELL: Thank you, your Honour. Your Honour, we have no objection to what's being put forward. I mean my understanding of the differences are it's whether you refer to the whole schedule or you just have a limited part of the schedule that actually applies to that award. I think that's really the difference between us.

PN22

We're not seeking to remove anything that applies, we're not seeking to change any of the wage rates or the allocation of the training packages to the skill levels. We're just making sure we just include the relevant content.

PN23

JUSTICE ROSS: Well, it may be that that - if that's the case then probably a bit of flexibility on both sides might resolve that. You might end up with more than you're proposing but less than the full schedule. I think, from what I read earlier, it might have been the HIA or the MBA, I'm not sure, there was a concern that adopting to narrow an approach may exclude some things which may have a potential to apply.

PN24

So it may be that some thought, without conceding that they do apply, some thought to some extension, out of an abundance of caution, may well resolve the issue in your discussions, or you may well, by an exchange, reach an understanding that something is or is not necessary. So if that's it, that seems - I don't think me doing formal directions and a hearing, it looks a bit like a sledgehammer to crack a walnut, so I think it's probably - and also, frankly, I'm not going to know about the relevance of it, That's in your area. In order to inform the Bench you'd need to bring evidence about that and all the rest of it. It can quickly become a bigger exercise than it may need to.

PN25

All right, what did you want to do, Ms Sostarko?

PN26

MS SOSTARKO: Thank you, your Honour. I think, certainly in the first instance, we wouldn't also be opposed to that course, notwithstanding our primary position is the adoption of the model schedule. The basis for that position, I suppose, is that as you mention, it provides sufficient scope for it to capture, these traineeships, to capture whatever packages, modules need to be included.

PN27

I think the issue that we would take with the schedule that Mr Maxwell has proposed is that it is so very narrow in scope and it doesn't provide for, perhaps, future unknown compilations of various different modules to create a specific training package.

PN28

It's a trickly - it's obviously - it's not always a definitive science when it comes to traineeships, they can be bundled in all sorts of ways and they can also form, I suppose precursors to other - - -

PN29

JUSTICE ROSS: They can be articulated training, yes.

PN30

MS SOSTARKO: Correct. And I think that - there's two, obviously, reasons for us to support the mob approach in that obviously it's going to streamline the award and create greater consistency, but it also enables that future proofing that we walk about, about - in situations where you may need to bundle a variety of different modules to create a training outcome.

PN31

One, for example, that I can think of is in this circumstance you would have, for example, a joiner or someone training as a joiner, who might want to upskill, in terms of their CAD proficiency, and develop other skills, not necessarily just tool-based skills. I think it's evident that these types of vocational pathways are on the increase. Work is becoming specialised, but not necessarily so that there'd be a requirement for an apprenticeship, but there are more and more jobs on site that require a specialised set of skills and that is an evolving practice. So I guess we would be loathe to lock ourselves into, I suppose, such a limited scope that it wouldn't enable, under the award, a particular type of training to come to fruition.

PN32

So, as I said, we certainly are happy to have those discussions with the union, but I guess that may not necessarily bare a definitive list that we all agree on, for those reasons.

PN33

JUSTICE ROSS: Just reflecting on what you've said, it's - it may be that you almost end up like a Venn diagram, there might be other things that you think are relevant and the union has a smaller set, but there's an agreement in the middle that, "Well, these ones might be".

PN34

There are probably, also, things in the list that when you look at it it's difficult to conceive they'd ever be application, in this sector, but there are some things that might. It's the "might" that we want to deal with.

PN35

Mr Maxwell, I think you'd have to approach it from the fact that, I take it the award doesn't currently have a limited range of matters in the schedule?

PN36

MR MAXWELL: No, it doesn't.

PN37

JUSTICE ROSS: It's got the standard - - -

PN38

MR MAXWELL: It's just got the standard schedule.

PN39

JUSTICE ROSS: Yes. Look, having said that, there is some utility in having a more tailored thing because, you know, you feel for someone who is flicking through, the casual reader of the award, and sees a million traineeships and wonders, "Well, what possible relevance has cooking got to do with it?". So there may be a capacity for some middle ground, and I think we'll test that out in the conversations that you'll have. All right, thank you for that.

PN40

HIA?

PN41

MS REGAN: Thank you, your Honour. Look, we wouldn't be opposed to that approach as you outlined either, notwithstanding our views, as highlighted in our submissions.

PN42

We would echo the concerns expressed by Master Builders, but we'd also have a few concerns, particularly with the wording surrounding the training packages, as proposed by the CFMMEU. The wording, as proposed, in the current attachment F draft schedule is inconsistent with the National Training Wage Schedule, so we would be seeking some consistency, in terms of the wording across those schedules as well.

PN43

We're happy to get into that detail in our further discussions.

PN44

JUSTICE ROSS: Well, those discussions can provide an opportunity to resolve any of the issues. Can I indicate, I'll probably - Mr Maxwell, if you can coordinate and undertake to get the material in, that would be the joint report, settle it with the parties, and I'd be looking at a timeframe of six to eight weeks. To the extent that there are unresolved issues, some draft consent directions about how you collectively want to deal with it. All right?

PN45

Any issues or problems there's always liberty to apply. I'm happy to see you at any time. That being it, I'll adjourn. Thanks for your help.

ADJOURNED INDEFINITELY                                                           [2.16 PM]