TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051214-1
VICE PRESIDENT HATCHER
AM2014/196 AM2014/197
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/196)
Black Coal Mining Industry Award 2010
(ODN AM2008/2)
[MA000001CRV Print PR985111]
s.156 - 4 yearly review of modern awards
No Applicant for AM2014/197
and
No Respondent for AM2014/197
(AM2014/197)
Black Coal Mining Industry Award 2010
(ODN AM2008/2)
[MA000001CRV Print PR985111]
Melbourne
9.20AM, MONDAY, 22 DECEMBER 2014
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE
Continued from 29/09/14
PN239
THE VICE PRESIDENT: This will take a while but I'll take the appearances, please - in Melbourne, firstly.
PN240
MS E. McCOY: McCoy, initial E, for the Australian Council of Trade Unions. With me is MS R. CARTER.
PN241
THE VICE PRESIDENT: Thank you.
PN242
MS L. SVENDSEN: Svendsen, initial L, for the Health Services Union.
PN243
THE VICE PRESIDENT: Thank you.
PN244
MS D. DeMARTINO: DeMartino, initial D, for the Shop, Distributive and Allied Employees Association.
PN245
MS V. WILES: Wiles, initial V, for the Textile Clothing and Footwear Union of Australia, if the commission please.
PN246
THE VICE PRESIDENT: Thank you.
PN247
MR D. MAMMONE: If the commission pleases, Mammone, initial D, for the Australian Mines and Metals Association.
PN248
THE VICE PRESIDENT: Yes.
PN249
MR S. ELIFFE: If the commission pleases, Eliffe, initial S, for the National Retail Association.
PN250
THE VICE PRESIDENT: Yes.
PN251
MR N. TINDLEY: Tindley, initial N, appearing on behalf of the Australian Retailers Association.
PN252
MS M. BROWN: Brown, initial M, appearing on behalf of Master Grocers Australia.
PN253
THE VICE PRESIDENT: Yes.
PN254
MR C. CAMERON: If the commission pleases, Cameron, initial C, on behalf of the Recruitment and Consultant Services Association.
PN255
THE VICE PRESIDENT: Thank you.
PN256
MR D. HAMILTON: If the commission pleases, Hamilton, initial D, Live Performance Australia.
PN257
THE VICE PRESIDENT: Yes, thank you.
PN258
MS C. RYAN: If the commission pleases, Ryan, initial C, for Jobs Australia, Community Service Employees.
PN259
THE VICE PRESIDENT: Thank you. Is that everyone in Melbourne? Appearances in Sydney?
PN260
MR S. MAXWELL: Maxwell, initial S, for the CFMEU Construction and General Division.
PN261
MR A. THOMAS: Thomas, initial A, for the CFMEU Mining Management Division.
PN262
THE VICE PRESIDENT: Yes.
PN263
MS S. TAYLOR: Taylor, initial S, for the Australian Manufacturing Workers Union.
PN264
MR I. McDONALD: McDonald, I, from the Australian Public Transport Industrial Association.
PN265
THE VICE PRESIDENT: Yes.
PN266
MR B. FERGUSON: Ferguson, initial B, for the Australian Industry Group.
PN267
THE VICE PRESIDENT: Yes, thank you.
PN268
MR M. WARD: Ward, initial M, seeking permission to appear for the Australian Chamber of Commerce and Industry, the Tasmanian Chamber of Commerce and Industry, the South Australian Chamber of Commerce and Industry, Australian Business Industrial, New South Wales Business Chamber Ltd, Pharmacy Guild of Australia, Restaurant and Catering Australia, and the Victorian Automobile Chamber of Commerce.
PN269
THE VICE PRESIDENT: Yes, all right. Also in Sydney?
PN270
MR T. ANGELOPOULOS: Angelopoulos, initial T, seeking permission to appear for the Horticulture Task Force.
PN271
THE VICE PRESIDENT: Yes.
PN272
MS O. VALAIRE: Valaire, initial O, for Master Plumbers of New South Wales.
PN273
THE VICE PRESIDENT: Thank you.
PN274
MS M. ADLER: Adler, initial M, for the Housing Industry Association.
PN275
THE VICE PRESIDENT: Thank you.
PN276
MR D. SHAW: Shaw, initial D, seeking permission to appear on behalf of the Australian Shearers Association.
PN277
THE VICE PRESIDENT: Was that Shearers, was it?
PN278
MR S. FORSTER: It's Foster, initial S, for AFEI.
PN279
THE VICE PRESIDENT: Yes.
PN280
MR T. WOODS: Woods, initial T, seeking permission to appear on behalf of the Australasian Railways Association.
PN281
THE VICE PRESIDENT: Thank you. So is that everyone in Sydney?
PN282
MR WOODS: Yes.
PN283
THE VICE PRESIDENT: And then there's Canberra.
PN284
MR R. CALVER: If it please the commission, Calver, initial R, for Master Builders Australia.
PN285
MR G. SCHMIDT: Schmidt, initial G, for the Confederation of ACT Industry.
PN286
THE VICE PRESIDENT: Previously there had been placed on the commission's web site and seem to be described as a set of draft directions which proposes a hearing to occur in April with associated directions. I'm not sure if all the parties will have seen this but we've received correspondence - - -
PN287
MS HEPWORTH: Excuse me, your Honour.
PN288
THE VICE PRESIDENT: I'm sorry?
PN289
MS HEPWORTH: We have some appearances in Brisbane.
PN290
THE VICE PRESIDENT: I'm sorry. Yes, go on. I didn't see you on screen there. Yes, go ahead.
PN291
MS L. HEPWORTH: Hepworth, L, on behalf of the Private Hospital Industry Employers Association, and MS L. FISHER also for the Private Hospital Industry Employers Association.
PN292
THE VICE PRESIDENT: Yes.
PN293
MS J. MINCHINTON: Your Honour, if it pleases the commission, Minchinton, initial J, on behalf of the Australian Hotels Association. I seek leave to appear on behalf of the Accommodation Association of Australia and the Motoring Motel and Accommodation Association. Thank you.
PN294
THE VICE PRESIDENT: Thank you. I should have said this earlier but I grant permission to those who sought permission to appear as lawyers. As I say, we've received correspondence from the ACTU which advances an alternate set out directions involving a hearing in October. So I think what we'll do is I'll start off with you Ms McCoy and you can deal with those, but can I indicate from the outset - although ultimately the decision about this will be made by the entire full bench - is that the likelihood of the commission being able to conduct the hearing in October is slim because of our pressure with other matters and a lack of personnel in the second half of the year. If I can indicate that although the parties are undoubtedly feeling oppressed by this process, so are we, and we'll manage this the best we can. So I will hear you about the alternate directions but as far as possible at least as to the major issues, I think it would be desirable if we could keep the April hearing. There may be amendments to the date for filing, et cetera, but beyond that I'll let the parties address me from there. So, Ms McCoy.
PN295
MS McCOY: I should say at the outset, your Honour, that I forgot to mention we also appear on behalf of the AWU in this matter.
PN296
THE VICE PRESIDENT: All right.
PN297
MS McCOY: I appreciate that the changes to the timetable that we're seeking are quite significant and while I did outline some of the issues of concern in the correspondence that we filed on Friday, I wanted to make a couple of additional points just so your Honour was aware of some of the issues that we're dealing with. So firstly there are a significant number of common issues which the peak organisations will have an interest in the first half of the year. We anticipate that in addition to the annual wage review, the accident make-up pay, district allowances and penalty rates will be quite significant matters. Award flexibility and also the jurisdictional issues, the domestic violence and the family friendly work arrangements, will all be heard in the first half of the year as well.
PN298
THE VICE PRESIDENT: Can I just indicate at this point that I've been politely informed that at least the jurisdictional issue with the domestic violence and the friendly work arrangements is likely to be deferred to the second half of the year now. I'm not sure if that - - -
PN299
MS McCOY: Thank you, your Honour, that's something of a relief.
PN300
THE VICE PRESIDENT: I'm not sure if that assists a lot but that's what the President tells us.
PN301
MS McCOY: That certainly does provide some assistance but I must admit that the key concern for us in relation to the timetable that has been issued is really the February date for submissions and evidence. As I'm sure you'll appreciate, many people have already booked in leave for January and it’s not simply a case of industrial staff at the ACTU not being as available. It actually relates to the fact that within unions and branches - and I'm sure the same problem for the employer organisations is that we rely on them to provide us with the evidence. While we have started that process of compiling evidence for the purposes of submissions, we really need a lot more time than February. So from our perspective, that's the key date that needs to be pushed back.
PN302
THE VICE PRESIDENT: So have you got any proposal in that respect which would allow the April dates to be maintained?
PN303
MS McCOY: We had draft determinations and a list of awards for February. The 27th was the initial date that we had proposed, primarily so that everyone by the end of February would have a good idea of all the issues that were likely to be raised in hearings. We had proposed written submissions, evidence and documentary material to be relied on by 12 June. I appreciate that you're saying April is the furthest that the hearing can be pushed back. I mean that's really very difficult for us. I mean I'm not quite sure how we would build in enough time for reply submissions, given the number of matters that are likely to be raised.
PN304
THE VICE PRESIDENT: Can I indicate this: if all the specific award issues are put back to a later hearing and the April hearing is confined to what at least I would regard as the most fundamental issues - that is, the issue of the circumstance in which casuals and part-timers can be engaged; casual loading as a penalty payment, in addition to other penalty payments for part-timers; minimum engagement; pattern of hours and rostering and overtime - if it was confined to those broad conceptual issues in April and then the more specific claims about casual conversion or (indistinct) specific award issues were pushed back to some later date, is that achievable?
PN305
MS McCOY: Sorry, could you just run through those matters again? So pushing back casual conversion - - -
PN306
THE VICE PRESIDENT: If you just have a look at the draft directions.
PN307
MS McCOY: Yes, your Honour.
PN308
THE VICE PRESIDENT: It's really under the dot point issues for casual employment, the second, third and fourth issue; and in relation to part-time employment, the first four issues. So they're what I would describe as the conceptual issues. Then more specific claims, like the casual conversion claim and specific award provisions can be dealt with at a later date, once the conceptual issues are settled. I'm sorry, Ms McCoy, while you're conferring, I meant to add to that that if the actual dates can be maintained for those purposes, perhaps the initial filing date could be pushed back to approximately 6 March.
PN309
MS McCOY: My apologies, your Honour, for that lengthy delay. I think probably we can - if the date for filing submissions and evidence was pushed back till March, possibly mid-March with the hearing in sort of late April in relation to those three matters that you have indicated in relation to casuals and four for part-time, on the basis that casual conversion would be heard later in the year, I think that's something that we could live with. But I really would suggest to your Honour that as much time as you can give us in relation to these matters would be appreciated. But from our perspective, a casual conversion matter later on would be of great assistance.
PN310
THE VICE PRESIDENT: All right.
PN311
MS TAYLOR: Your Honour, this is Ms Taylor in Sydney. I appreciate that this (indistinct) award modernisation creates with the bunch-up of dates but in terms of the April date which I believe very strongly is the date, the main difficulty there is, as Ms McCoy has identified, is the evidence. We've had a time quote from the Workplace Resource Centre in Sydney now as part of the - incorporated back into the business school - Sydney University. But the survey we had asked them to look at, which was specifically in relation to manufacturing, it would take at least a minimum of 10 weeks. The person responsible for conducting that survey would not be back until early January. So I put that out there. This is a significant case. The evidence that would be gathered would go to the four issues identified by the bench but also most include the other issues. So it's important that we get as much evidence as we can to inform the commission's inquiry into this matter.
PN312
THE VICE PRESIDENT: All right. So had you finished, Ms McCoy?
PN313
MS McCOY: Just to add to what Ms Taylor has indicated, I can't sort of say a lot about the third and fourth issues under casual employment but certainly in relation to minimum engagements we had anticipated that that would require a significant amount of evidence in relation to the minimum engagement, so not purely a conceptual case. Really, the question of payment of casual loading in addition to other penalty payments, that matter - at this stage we're not clear how many awards could be affected by that. It's an issue that has been raised in relation to stage 1 and 2 awards and it really depends on how many parties seek to pursue it. So some of those matters that you have described as conceptual matters, we're not really clear at this stage of the scope of how many awards would be affected.
PN314
THE VICE PRESIDENT: We will distribute shortly a list of the awards at stage 1 at least in which those issues have been raised, but obviously they will have implications for the other stages as well. Thank you, Ms McCoy.
PN315
MS McCOY: Thank you.
PN316
THE VICE PRESIDENT: Is there any other union parties in Melbourne who wish to add anything? No, all right. Any other union parties in any of the other locations that wish to add anything? All right.
PN317
MR THOMAS: Your Honour, it's Andrew Thomas from CFMEU Mining. The only issue I wished to raise is (indistinct) the last dot point on (indistinct) to be clear on what the Sydney current employment issues are. I'm aware of one issue that (indistinct) in the Mining Industry Award going to the use of the term "entitlement" rather than "attributes". I understand that that will be considered as part of the (indistinct) employment issue but maybe the bench could enlighten me on that.
PN318
THE VICE PRESIDENT: As I indicated, there will be a schedule published very shortly which will indicate all those matters but for current purposes I'm not suggesting that those specific matters will be dealt with at any April hearing but at a later time. Any other union parties? All right, I might just go straight to the other then peak organisations: AIG and ACCI in Sydney. Mr Ferguson and Mr Ward, do you want to address me on these issues now?
PN319
MR FERGUSON: Yes, thank you, your Honour. We obviously support in substance the proposal that was put by the ACTU in terms of the draft alternate timetable. I'm mindful of the comments the bench has already made about the hearing date and the inflexibilities around that issue but we do really have genuine concerns about the level of congestion in the first half of the year for the parties as well as the bench. I'm just mindful that aside from the common matters there's also a lot of work to do in the award stage as well and we really do - or we want to make it clear that we think there will be some difficulties meeting a very tight time frame in this matter. Might I - - -
PN320
THE VICE PRESIDENT: I appreciate that, Mr Ferguson, but the problem is it seems to me timing is only going to get worse in the second half of the year.
PN321
MR FERGUSON: I'm not sure that it is if you look at the common claims. It seems to be a lot of them are going to be dealt with in the first half of the year. Penalty rates is going to flow on but I'm not sure that it's necessarily the case that there's going to be as many significant common claims dealt with in the second half of the year but I appreciate there will be award state matters that certainly our group will have to deal with all the way through the year. But, look, it is a real issue for us and anything understand that we obviously will have some of the similar difficulties with ACTU in terms of the first date for filing material but our concern is also very much that there be a meaningful and significant period of time for reply material to be put on.
PN322
Some of the claims that are being advanced will impact upon a very significant range of industries and are themselves significant claims. We're very mindful that we'll need the opportunity to reply to that sort of material. We don't know the breadth of it as yet. Obviously parties with opposing claims had some time to pull their case together but we're quite anxious that three weeks isn't going to be anywhere near sufficient for us to get proper reply material. Certainly it would be difficult to do things like organise surveys with employers and so forth in that sort of limited time frame. So that's why we had envisaged or hoped for quite a large period of time. I think we'd obviously initially pressed three months in our first proposal. The hope was that that also might allow some narrowing of the issues or some discussions to take place between the parties as well. Perhaps that's optimistic but we thought if that was available, it would be useful.
PN323
Whatever time frame flows then from the bench, we'd just seek that there be a serious amount of time available to the employers. Ideally we'd seek three months but three weeks is, in our view, well short of the mark.
PN324
THE VICE PRESIDENT: Mr Ward.
PN325
MR WARD: Your Honour, can I, with respect, argue against holding the April hearing date first and then I will come back to your Honour's suggestion about if it was to be maintained, what might be done about it. I don't think there could be any debate that there is congestion in the timetable between February and April next year. The very fact that the three peak councils have joined together to put that to the commission, while not unprecedented, is very meaningful and should carry some weight, your Honour.
PN326
There is nothing in the statute in section 156, with respect, that requires the review to be finished by the end of 2016. There could be no criticism of this commission by any party if the four yearly review is not finished by the end of 2016. My clients would not raise any criticism if the review moved into 2017. What is important is that the review is done properly, with respect, and that time is appropriately provided to parties not only to prepare their cases but to assist this commission in arriving at the correct outcome. It seems to us, with respect, that what is occurring here is a self-imposed constraint that this review must conclude by the end of 2016. With respect, it does not have to.
PN327
If the commission believes it needs more time, in our respectful submission the commission is entitled to take more time and should take more time. The claims that are before the full bench in this matter are materially serious claims, claims that impact on a business's ability to organise the form of labour it engages is a material issue for how the business operates, how the business operates sufficiently, and the question of labour costs. These are not trifling claims. These are not small claims. These are materially serious claims. In many respects we sense that they probably have the same impact and substance that the penalty rate claims do and one would have expected to see, with respect, a timetable similar to the penalty rates timetable for these claims. That is effectively what the AI Group, the ACTU and ACCI put forward.
PN328
THE VICE PRESIDENT: Just be clear - - -
PN329
MR WARD: We say should the need to - - -
PN330
THE VICE PRESIDENT: Mr Ward.
PN331
MR WARD: Sorry, your Honour.
PN332
THE VICE PRESIDENT: When you refer to "these claims", just to be clear, are you referring to the ACTU claims on casual conversion and minimum engagement or something else?
PN333
MR WARD: No, your Honour, I'm referring to the totality, the box and dice of all the claims. I will come to them specifically later. So in our respectful submission we see no compulsion, no need to hold on to an April hearing date in the face of the three peak bodies urging the commission to do otherwise. If against that submission the commission formed the view that it was necessary for some reason to hold on to an April hearing date. In our respectful submission, the matters that the commission identified are not in our view conceptual. They are in fact substantially evidentiary matters. The notion of minimum engagement will be, in our submission, an evidentiary case relevant to particular industries. I'm conscious that Mr McDonald is sitting to my right from the bus industries, an industry has some familiarity with from the past. Changing minimum engagements in that industry will fundamentally affect the economics of the industry.
PN334
So the notion that minimum engagements, by way of example, as a conceptual case in our view is not, with respect, correct. It's actually an evidentiary issue. It's possible that the only conceptual matter we see here is the conceptual question of casual conversion because while there will be an evidentiary element to that case, it seems to be largely a case that might be argumentative in nature in terms of submission and case law and precedent. But the matters that your Honour has identified as being conceptual in our view are actually heavy evidentiary matters. With respect, we'd not only ask the commission to vacate the April date, we do not support, with respect, the proposal to use the April date for items 2, 3, 4 in casual employment and the first four items in part-time employment.
PN335
Mr Ferguson has also mentioned the question of reply. We will require, irrespective of any timetable, a meaningful opportunity to reply. Now, it's true to say that some of our case can be prepared in advance because we understand the issues, but a great deal of our case will need to be prepared in direct response to the case and evidence advanced by the unions. It is just unfair, with respect, to give us three weeks to do that. So we would urge the commission for all good reasons to adopt the timetable proposed by three peak organisations. If the matter has to flow into 2017 you will hear no criticism from my clients in regard to that.
PN336
THE VICE PRESIDENT: I will hear it from somebody.
PN337
MR WARD: I'm sorry, your Honour?
PN338
THE VICE PRESIDENT: I said we'll hear it from somebody.
PN339
MR WARD: I can't hear, your Honour, sorry.
PN340
THE VICE PRESIDENT: I said we will hear it from somebody.
PN341
MR WARD: Let them. Let them make that criticism but they obviously haven't read the Act, they obviously aren't involved in knowing what's involved in these matters. Anybody who has participated through 2015 in this award review process would be fatigued. All of my colleagues at the bar here are fatigued. I suspect many members of the bench are fatigued. If people are making that criticism, they're making it unknowingly and it's not worthy. We would urge the commission to adopt the timetable we've proposed. If the commission is against us, we would say that the April date should not be used for matters that are evidentiary based and irrespective of all of those matters, we should have a fair and reasonable opportunity to reply to any case put on. If the commission pleases.
PN342
THE VICE PRESIDENT: Mr Ward, in the light of some of what you said, regardless of when the hearing is on, is a week still the estimate to deal with everything; that is - - -
PN343
MR WARD: I would sincerely doubt that, your Honour. I have to say with all candour given everything that's been on so far, to say that our preparation for this matter is embryonic is almost an understatement. But just being conscious of some of the industries that are involved, particularly around things like minimum engagement and working as part-timers, I would think that would be the most extraordinarily optimistic assessment in some ways - I just feel it would be.
PN344
THE VICE PRESIDENT: Thank you. I might return to Melbourne. Does any employee group have anything different to put than what's been put by Mr Ferguson and Mr Ward? No. Sydney, does any employee group have anything different to put in respect of the timetable?
PN345
MR McDONALD: Your Honour, Ian McDonald from the Australian Public Transport Industrial Association. I rise in support of Mr Ward but in further clarification would like to put to your Honour that to exclude, for instance, specific casual employment issues identified in stage 1 or any of the stages would add a range of duplication to this matter. The Passenger Vehicle Transportation Award, which is the relevant award in the bus and coach industry, is in stage 2 but there are applications made by both the Australian Public Transport Industrial Association and the Transport Workers Union in relation, for instance, to minimum engagements which are solely specific to that industry. To exclude them from the minimum engagement mechanism that was proposed by yourself would only add the duplication of having to have witnesses available for the full bench hearing and then witnesses available perhaps (indistinct) full bench hearing or for the individual award hearings.
PN346
Given that it would be our intention to bring witnesses from across the country in every state that are impacted, and territories, that's a substantial cost which we would ask that the bench take into account when considering Mr Ward's proposal.
PN347
THE VICE PRESIDENT: Canberra or Brisbane, is there anything different that any party wants to put? I will just start with Mr Calver in Canberra.
PN348
MR CALVER: If the commission pleases, we have the same outcome as Mr Ward but for different reasons: lack of availability in March and early April. Your Honour, I won't be available for that period of time and we were seeking an adjournment on that basis to another day.
PN349
THE VICE PRESIDENT: I can indicate that there are so many parties involved that to take into account availability of individuals would be an impossible task. Anybody else from Canberra or Brisbane?
PN350
MS HEPWORTH: No, thank you.
PN351
THE VICE PRESIDENT: Anything you want to put in reply, Ms McCoy?
PN352
MS McCOY: With the exception of the casual conversion matter where I think we'd probably disagree with the comments made about that, we agree with the reasoning that's been put by the employers about the time frame, about there's no necessity of finishing the award review by the end of 2015. As I said, we would very much prefer the timetable that we had proposed and I was attempting to accommodate an April hearing but really our preference is for it to extend over most of next year, similar to the penalty rates matter, and we think that would provide a much better way of hearing this case and ensuring that all of the issues are actually dealt with properly, your Honour.
PN353
THE VICE PRESIDENT: Thank you. The full bench will give some consideration to the matters that have been put and will try to notify the parties as soon as possible as to what we have determined. However, it is clear that because the timetabling issues raised affect not only this particular matter but the conduct of the entire four year review and its timing, that there may have to be some detailed consideration of those matters. Therefore, although we will absolutely try to notify the parties before Christmas, I can't guarantee it given the significance of the matters that have been raised. I thank the parties for their assistance and I will now adjourn.
<ADJOURNED INDEFINITELY [9.52AM]