TRANSCRIPT OF PROCEEDINGS
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
AM2014/83, AM2014/66, AM2014/68, AM2014/86
s.156 - 4 yearly review of modern awards
Four yearly review of modern
awards - Award stage - Sub groups 1A & 1B - Exposure drafts - Premixed Concrete
Award 2010; Asphalt Industry Award 2010; Cement and Lime Award 2010; Quarrying
Industry Award 2010
(AM2014/83, AM2014/66, AM2014/68, AM2014/86)
12.21 PM, WEDNESDAY, 25 MARCH 2015
JUSTICE ROSS: Can I have the appearances, please.
MR B FERGUSON: If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group. With me is Ms R Bhatt.
JUSTICE ROSS: Thank you. In Sydney?
MR S CRAWFORD: If it pleases the Commission, Crawford, initial S, from the AWU.
MR K SCOTT : If the Commission pleases, Scott, initial K, appearing from ABI and the New South Wales Business Chamber.
MS J LIGHT: If the commission pleases, Light, initial J, for the Australian Federation of Employers and Industries.
MR FERGUSON: During the interval, the parties have had some discussions. It seems that there will be a range of issues related to the general issue, if I can say that - the rates‑type issues - that we're not going to reach agreement on, but then there are a raft of other matters that we could probably make - hopefully make, I assume - good progress on. A lot of them are obviously drafting‑related issues and in some cases the concern is about the amendment we've proposed rather than the issue.
What we've thought about is a course of action. The parties agree that it would be sufficient for us to be given a period of time to have some discussions between ourselves and then to come back to the commission to report on the outcome and matters outstanding, if there are any, et cetera, and perhaps indicate a course of action that will assist going forward beyond that.
I know that we've talked about 10 April. There was some hope that perhaps we could be given one extra week just to accommodate Easter breaks and the amount of reports that might need to be written.
JUSTICE ROSS: Is the proposition that you'll confer in relation to the range of issues that are - I'll describe them as award specific.
MR FERGUSON: Yes.
JUSTICE ROSS: I appreciate that the wages and allowance issues are, as well, but they're caught up in the general argument.
MR FERGUSON: Yes.
JUSTICE ROSS: That you'll discuss those and, by 17 April, you'll put in a joint report indicating what you've agreed on, what remains in dispute ‑ ‑ ‑
MR FERGUSON: Yes.
JUSTICE ROSS: ‑ ‑ ‑ and then we'll deal with it on the basis of that report.
MR FERGUSON: Yes. There was some suggestion that perhaps we'd also write into the commission if we thought the commission could assist us in terms of conferencing.
JUSTICE ROSS: Certainly.
MR FERGUSON: So liberty to do that.
JUSTICE ROSS: That request should be made to Commissioner Bull, in the event that you're seeking that assistance.
MR FERGUSON: Yes, okay.
JUSTICE ROSS: All right. When you talk about the future steps, I have to say that we're not attracted to another oral hearing.
MR FERGUSON: No.
JUSTICE ROSS: Unless it becomes absolutely necessary.
MR FERGUSON: We'll take that on board. I think as much as anything else, we were thinking whether at that stage it became clear that a conference was helpful ‑ ‑ ‑
JUSTICE ROSS: Sure.
MR FERGUSON: We hope that, you know, perhaps we can get it all sorted hopefully before the 10th, but, if not, we might foreshadow that in the correspondence.
JUSTICE ROSS: Okay.
COMMISSIONER BULL: Mr Ferguson, what you've just said there, are you limiting that to this particular award or the ‑ ‑ ‑
MR FERGUSON: No, sorry. That's in relation to the three awards.
COMMISSIONER BULL: Yes.
MR FERGUSON: The Premixed, Asphalt, Cement and Lime Awards. All three in that fashion.
COMMISSIONER BULL: What about Concrete Products? Is that drawn in there or not?
MR FERGUSON: No, we hadn't intended to ‑ ‑ ‑
COMMISSIONER BULL: That's fine. You do what's appropriate.
JUSTICE ROSS: Quarrying, is that in a second category, is it?
MR FERGUSON: Cement and Lime and Quarrying are amalgamated.
JUSTICE ROSS: Yes, okay.
MR FERGUSON: The same category, I suppose.
JUSTICE ROSS: Yes.
VICE PRESIDENT HATCHER: In Cement and Lime and Quarrying, what is being conferred about?
MR FERGUSON: All the issues apart from the rates. All the general issues, if I can call them that.
VICE PRESIDENT HATCHER: In your submissions, I notice you've dealt with the issue of the definition of permanent night shift. I think we've done that. We've made a decision about it.
MR FERGUSON: Yes. I must admit, we had sort of looked at that as though you'd made a decision about what went into the exposure draft and there still an opportunity to raise it ‑ ‑ ‑
JUSTICE ROSS: Not if we have decided the issue on its merits. How we translate the decision into an exposure draft, there might be room for debate about it, but once the parties have had an opportunity to make a submission about a merit issue and we've decided it, I don't think we'll be looking to revisit it.
MR FERGUSON: We're in the bench's hands. You know, we expressed a concern that we genuinely had about the clause. I think all that had transpired before, apart from the conference - and I'm not criticising it - was an email exchange. We had thought there would still be an opportunity, but I hear what you're saying.
JUSTICE ROSS: Yes. I'll hear from the parties in Sydney. We will need to then formally call on the remaining matters and then I'll put a proposition to you about where you're up to, and we'll deal with it that way. Before we get there, can we just go to the parties in Sydney. Is there anything you want to add or are you content with the process that has been outlined by Mr Ferguson?
MR CRAWFORD: Your Honour, the AWU is content with that process. Although the parties may be able to resolve this issue amongst themselves in discussions, we think it probably is worth drawing the full bench's attention to an issue that AIG have identified with the current Quarrying and Cement and Lime Awards.
JUSTICE ROSS: Yes.
MR CRAWFORD: If I refer you to the Quarrying Award 2010 ‑ ‑ ‑
JUSTICE ROSS: Which paragraph of AI Group's submissions is this in?
MR CRAWFORD: Paragraph 133 in relation to clauses 11.2(a)(i) and 11.2(b) of the exposure draft.
JUSTICE ROSS: So that's in relation to the industry disability allowance?
MR CRAWFORD: Yes. We hadn't realised this before AIG raised the issue, but in the current award the wording doesn't make a lot of sense for the industry allowance. For example, in clause 18.1 of the Quarrying Award, there's reference to the industry allowance being -
3.25 per cent of the standard rate ... to compensate for the disabilities of the industry.
The problem is it says:
This additional rate will be regarded as part of the standard rate for all purposes.
The standard rate is obviously defined in most of the modern awards with reference to a particular level and it's generally used for calculating allowances. The exposure draft correctly, in our view, remedies this issue by applying the general approach to industry allowances, which is you work out the rate and then apply it to the employee's ordinary classification level rate.
VICE PRESIDENT HATCHER: Although I think you'll see that the definition of "standard rate" - perhaps it serves no purpose - is still in the exposure draft on page 66 as it came from both the current awards.
MR CRAWFORD: Sorry, your Honour?
VICE PRESIDENT HATCHER: The definition of "standard rate" which you referred to in the Quarrying Industry Award, which is also in the Cement and Lime Industry Award, has been put together and reproduced at page 66 of the exposure draft, although that definition may no longer serve any purpose because it doesn't connect, as you pointed out, with the drafting of clause 11.2.
MR CRAWFORD: Correct. As I indicated, we think the exposure draft correctly clarifies this issue, but given AIG have indicated in their most recent submission that they may argue for a literal interpretation, if that's even possible, of the current award provisions, it's potentially a significant issue that I thought I should at least bring to the bench's attention.
VICE PRESIDENT HATCHER: I was going to raise that with you, Mr Ferguson. In both awards, the current reference to "standard rate" doesn't seem to make a lot of sense when you read the definition.
MR FERGUSON: We did have a detailed discussion in the break about this issue and we've said that we'll have a look at that in similar detail prior to discussions. We spent quite a bit of our time talking about this in particular.
JUSTICE ROSS: We might just call on all the remaining matters, just out of an abundance of caution. I don't expect there will be any additional parties involved, but just for the record.
THE ASSOCIATE: AM2014/66 Asphalt Industry Award 2010, AM2014/68 Cement and Lime Award 2010, AM2014/86 Quarrying Industry Award 2010, for hearing.
JUSTICE ROSS: Is there any addition to the appearances that have been already announced in relation to the Premix Concrete Award? No? All right. The transcript will cover all the matters beginning with Premix Concrete and onwards. Can we then just test the proposition - had you finished, Mr Crawford, about what Mr Ferguson has proposed as a means of dealing with the outstanding issues in these awards?
MR CRAWFORD: Yes, your Honour.
JUSTICE ROSS: Does anyone else wish to say anything about that process?
MR SCOTT: No, your Honour. We're content with that process.
MS LIGHT: No, your Honour.
JUSTICE ROSS: In relation to the Cement and Lime and Quarrying matter, if a conference is required, you should contact Vice President Hatcher's chambers in relation to that matter. Is there anything else in relation to any of these awards at this stage? If not, I think that concludes the proceedings and we'll adjourn. Thank you.
ADJOURNED INDEFINITELY [12.33 PM]