PN155

THE DEPUTY PRESIDENT: Stay seated, please. Yes, good morning. As is at least my usual practice in dealing with four‑yearly review conferences, the proceedings are being recorded, so for the purposes of the transcript I might just ask each of the represented parties to identify themselves, commencing in Sydney. You can stay seated.

PN156

MS A AMBI: May it please the Commission, Ambi, initial A, on behalf of the CEPU.

PN157

THE DEPUTY PRESIDENT: Yes.

PN158

MR M NGUYEN: Mr Nguyen, initial M. I'm appearing for the Australian Manufacturing Workers' Union. I'm also here with my colleague Mr Miller, initial G.

PN159

THE DEPUTY PRESIDENT: Yes.

PN160

MR S CRAWFORD: Crawford, initial S, from the AWU.

PN161

THE DEPUTY PRESIDENT: Thank you, Mr Crawford.

PN162

MR S MAXWELL: If the Commission please, Maxwell, initial S, for the CFMMEU.

PN163

THE DEPUTY PRESIDENT: Rolls off the tongue, doesn't it, Mr Maxwell?

PN164

MR MAXWELL: Yes, your Honour.

PN165

THE DEPUTY PRESIDENT: Yes.

PN166

MR G MILLER: As Mr Nguyen stated, it's Miller, initial G.

PN167

THE DEPUTY PRESIDENT: Yes, thank you, Mr Miller.

PN168

MR MILLER: Thank you.

PN169

MS M ADLER: Adler, initial M, for the HIA.

PN170

THE DEPUTY PRESIDENT: Yes, thank you.

PN171

MR S McGREGOR: McGregor, initial S, for the Master Builders Association.

PN172

THE DEPUTY PRESIDENT: Thank you. And in Melbourne?

PN173

MS V PAUL: Paul, initial V, from Australian Industry Group.

PN174

THE DEPUTY PRESIDENT: Thank you, Ms Paul. And Brisbane?

PN175

MS L ZHOU: Zhou, initial L, appearing on behalf of ABI New South Wales Business Chamber.

PN176

THE DEPUTY PRESIDENT: I'm just have a little bit of trouble hearing you. Would you mind just moving the microphone a bit closer to you?

PN177

MS ZHOU: Is this better?

PN178

THE DEPUTY PRESIDENT: Much better. Thank you.

PN179

MS ZHOU: Zhou, initial L, appearing - no, all good?

PN180

THE DEPUTY PRESIDENT: Yes, go ahead. All right. I've listed this matter for conference to discuss the issue of allowances at the request of at least some of the parties, so who wants to begin?

PN181

MR MAXWELL: Perhaps I may begin, your Honour.

PN182

THE DEPUTY PRESIDENT: Yes, thank you, Mr Maxwell.

PN183

MR MAXWELL: Your Honour, in paragraph 369 of the Full Bench decision, the Full Bench expressed a view that the sectors and the quantum of the industry allowances were a provisional view of the Full Bench and invited the parties to make further submissions and/or seek a conference.

PN184

THE DEPUTY PRESIDENT: Yes.

PN185

MR MAXWELL: The unions, whilst we do intend making submissions, thought it would be preferable, at least in the first instance, to seek a conference with the parties to see if we can reach any agreement on quantum.

PN186

THE DEPUTY PRESIDENT: Yes.

PN187

MR MAXWELL: At the outset can I say that from the union perspective we believe that the quantum proposed of four per cent for the residential sector is inadequate, and, when you consider the loss of the special allowance, will actually lead to a reduction in the existing safety net wage rates that apply under the award, a reduction of approximately $5 per week, and when you factor in the loss due to the paying for the fares and travel on the RDOs and the loss in the calculation of the leave loading, that adds about another $2.91 a week, which is approximately a $7 a week reduction. There is also a reduction in the apprentice wage rates of between $1.33 and $2.47 per week.

PN188

In our view, we still have the view that we think it's preferable just to have one industry allowance. We have got a proposal in mind, but we're not sure whether it's worth putting that to the parties, depending on what the attitude is of the employers to even consider any change in the quantum.

PN189

The other aspect is that our concern is that there are four particular areas of special work under the award where the decrease is significantly greater, and they are in regard to the refractory work, the air conditioning work, asbestos removal and those employees that work in compressed air. We have an alternative proposal that those areas of work be recognised as a specialist area of work in the industry and that a separate industry allowance should apply to those workers.

PN190

THE DEPUTY PRESIDENT: Yes.

PN191

MR MAXWELL: The third area of concern is in regard to working at heights. Whilst we recognise that the Full Bench has decided to retain the multi-storey allowance, within that provision there is a paragraph that says that where a building doesn't have regular storeys the amount payable will be the amount agreed to by the employer or the towers allowance contained in the award, and if the towers allowance is abolished then there is a vacuum, we see, in the award. We propose that ‑ ‑ ‑

PN192

THE DEPUTY PRESIDENT: What's a structure that doesn't have a regular storey, a variable building?

PN193

MR MAXWELL: It could be the installation of a wind tower, a church steeple, it could be a transmission tower.

PN194

THE DEPUTY PRESIDENT: Yes.

PN195

MR MAXWELL: There are a whole range of variants under the award where it may apply - or an aircraft hangar and so forth.

PN196

THE DEPUTY PRESIDENT: Yes.

PN197

MR MAXWELL: Our proposal there would be to actually put in a provision that related to an allowance paid for every 15 metres in height, which is reflective of the current towers allowance provision. As I say, that's ‑ ‑ ‑

PN198

THE DEPUTY PRESIDENT: Yes. So, Mr Maxwell, in summary, the position of the unions is that so far as the residential and the other sectors are concerned, there should be one allowance.

PN199

MR MAXWELL: Yes.

PN200

THE DEPUTY PRESIDENT: That there should be special consideration for work - or workers performing work in the identified areas, air conditioning, asbestos removal and so forth, and in respect of - there needs to be proper allowance made for working in heights in respect of construction which does not involve identified storeys as such in the types of construction that you've identified.

PN201

MR MAXWELL: That's correct.

PN202

THE DEPUTY PRESIDENT: Yes, all right. Do you want to indicate, Mr Maxwell, what the unions' position is in respect of quantum?

PN203

MR MAXWELL: Yes. In regard to quantum, we say that the - perhaps, your Honour, I have a document here - and I'm sorry, I haven't given it to the other parties interstate.

PN204

THE DEPUTY PRESIDENT: What I might do, Mr Maxwell, in order that everybody has a copy, I might just adjourn for a few minutes, have this scanned across to Melbourne and Brisbane so that the participants there can have a copy of it, and in the meantime, those that already have a copy can have a look at it. Is that all right?

PN205

MR MAXWELL: Thank you, sir.

SHORT ADJOURNMENT [9.20 AM]

RESUMED [9.30 AM]

PN206

THE DEPUTY PRESIDENT: Mr Maxwell, do you want to briefly go through this document?

PN207

MR MAXWELL: Yes, your Honour. If I can start off with the calculation of, I suppose, the general industry allowance. What we looked at is the existing allowances. So we have the special rate, which is 7.70 per week which is paid as part of the all purpose rate and the current industry allowance of $30.98.

PN208

We've converted those to a percentage of the standard rate, so currently employees, just for those two allowances, get a combined payment of 4.6 per cent of the standard rate. We factored in an amount for the loss of the fares and that's based on payment of 12 fares per year plus the calculation of the fares allowance and the annual leave loading.

PN209

In regard to the average of the special rates pay to the trades, I do have a separate spreadsheet, but what we've sought to do is look at what special rates would particularly be paid to a carpenter, to a roof tiler, to a painter, to a plasterer, and we then sought to find an average of those allowances for the trades. That equates to an allowance of 73 cents per hour and we've converted that to a weekly rate based on 38 hours.

PN210

We then said we recognise that the workers would not be entitled to the allowance for the full 38 hours per week and we've used a figure of 50 per cent of their time, which then equates to an allowance per week of 13.94, which equates to 1.7 per cent of the standard rate. We then added all those up to come to the 6.6 per cent.

PN211

In regard to the method of the calculation for special building construction work, we've looked at the existing allowances for the refractory allowance paid to bricklayers and also to the refractory assistant, we've looked at the current asbestos allowance and the current air conditioning allowance.

PN212

We've then taken an average of those. We've converted that to a percentage of the standard rate and we've added that to the loss of the other allowances, which was set out in the 6.6 per cent calculation and then we've arrived at a figure in of 14.19, which we rounded off to 14.2.

PN213

I just added there the range of compressed air allowances, and we've recognised that if you added those figures in the rate would blow out considerably, so we recognise that the rate of 14.2 per cent would be somewhere towards the lower end of the scale, but we believe that that would be a relevant payment.

PN214

So at the end of the day, if someone's working in compressed over 225 kPa, given that the current award allowance is an extra $935 per week, I think those people would tend to write their own cheque on what they should be paid for working in that condition.

PN215

THE DEPUTY PRESIDENT: Yes, all right. I gather this is a "so say you all" proposal, at least on your side of the Bar table.

PN216

MR MAXWELL: That's correct.

PN217

THE DEPUTY PRESIDENT: Feel free to join in, Ms Adler. All right. Perhaps, Ms Adler, you want to begin.

PN218

MS ADLER: Thank you, your Honour. Probably it's obvious to say, but we're quite comfortable with the decision and the quantum proposed. We think it reflects those allowances attracted to the residential sector, and we would note that the decision does contemplate, I guess, a swings and roundabouts outcome.

PN219

Just obviously looking at what the unions have given us this morning, aside from what I've already said, I think we take significant issue with trying to build in some sort of compensation for the loss of fares on the RDO and the annual leave calculation.

PN220

I mean, that was clearly a determination made in the decision to accept that application to vary those provisions, and I don't see why there would be any justification to build in any other amount into the allowance provisions. Otherwise, as I said, we're comfortable with the decision. We can provide, I guess, a fuller response to what's proposed, but on its face we would oppose it.

PN221

THE DEPUTY PRESIDENT: Do I take it, Ms Adler, your position is that there should be a differential rate between the two sectors identified in the decision?

PN222

MS ADLER: Yes, your Honour.

PN223

THE DEPUTY PRESIDENT: Mr McGregor?

PN224

MR MCGREGOR: I just preface my comments, your Honour, by saying that our national industrial relations committee is meeting in Perth today to discuss this, amongst other issues - I should say, the allowance matter and the decision on the modern award in general, but we would broadly support HIA's views.

PN225

THE DEPUTY PRESIDENT: I suppose my question to you, putting aside the residential building sector, so far as the interests of your membership is concerned, do you have a position about whether you want to engage with the unions about the quantum of the allowance?

PN226

MR MCGREGOR: I can tell you I don't have instructions on that point, and I'll take those instructions from our industrial relations committee probably as an outcome from today's meeting, but it won't happen before the end of the day. So again, in saying that, we do broadly support what the HIA has to say.

PN227

THE DEPUTY PRESIDENT: Mr McGregor, given that you say that the industrial relations committee of the MBA is meeting today, is this a document that needs to be fed into those discussions in order for them to make an informed response?

PN228

MR MCGREGOR: I would say no, your Honour. I think that they've got their material. They're considering, obviously, the quantum in its current form - or should I say the quantum that's been proposed as a part of the decision, so they're either going to tell me that they're happy with it or they're not, and if they're happy with it, then obviously we'll be supporting that decision, the decision in its current form, and if they're not happy with it, I would assume that they're not going to be advocating for it to be higher.

PN229

THE DEPUTY PRESIDENT: Yes, all right. Ms Paul?

PN230

MS PAUL: Your Honour, we, as Ms Adler, would have no objections to the position of obviously what's been put forward by the Commission in the decision, and maintaining separation is not an issue - we would have no issue in terms of separating the other building sector against the residential building sector.

PN231

I do have some concern around the unions' proposal, because the calculations don't make sense, firstly, as Ms Adler's pointed out, in terms of loss of fares and RDO, but again, the calculation around the special rates paid to trades to reach the 6.6 figure, added to which we then have the additional proposal around another - so a special industry allowance of asbestos removal, refractory work, air conditioning, et cetera, which in our view, some of those have already been - I'm unclear as to whether or not some of those have already been taken into consideration as part of the 6.6, so that the additional 14.2 seems a little high.

PN232

I'd need to get some more information from our members around the height work issue, but certainly for number 1 and 2 we have some concerns around that, that there's a risk in terms of, I guess, what I would refer to as the double‑dipping.

PN233

But essentially, your Honour, to separate the two and to make it simple, was the purpose of the Commission's decision. I don't know that we then start making this - to create the additionals - plus the additional criteria, as set by the unions, I think just ends up with us having a similar problem of confusion as well as just simply compressing the amounts.

PN234

It would be just as simple, in our view, to go back to the original version. So as an overarching - we'd see some problems in terms of that. Either it's going to be we get one rate distinguished between the respective sector in a broad sense or there's going to be a bit of cherry-picking.

PN235

THE DEPUTY PRESIDENT: Yes, all right. Ms Zhou?

PN236

MS ZHOU: Yes, your Honour. We have no objections to the decision at the moment. The unions' proposal only came to light today, so I haven't got any instructions ‑ ‑ ‑

PN237

THE DEPUTY PRESIDENT: When will you have an objection to the decision then if it's not at the moment?

PN238

MS ZHOU: We don't have any objections to the decision.

PN239

THE DEPUTY PRESIDENT: All right.

PN240

MS ZHOU: The unions' proposals have come to light today so I don't have instructions in regards to it, so I can't give you a position on that. I will have to take it back and seek instructions.

PN241

THE DEPUTY PRESIDENT: Yes.

PN242

MS ZHOU: But for now, in my opinion, just looking at it, I agree with HIA and the Ai Group's - what they're putting forth in regards to the issues with the unions' proposals.

PN243

THE DEPUTY PRESIDENT: Yes, all right. Putting to one side the quantum of the industry allowance and the special allowance, there does seem to me to be, at least prima facie, some merit in the height work issue, on its face, but I gather the collective responses amount to this, of the employers, at least, that at this stage they're not inclined to engage in a review of either the quantum or the classification as between the industry allowances.

PN244

What I would like is for each of the employer groups to consider the issue of the height work proposal and to advise my Chambers by Friday week as to whether they support the proposal or have an alternative proposal or whether they regard it as having some merit, and we might be able to at least work through that issue.

PN245

It seems to me, Mr Maxwell, that, and as we foreshadowed in the decision, we'll give the parties an opportunity to persuade us that the amounts that were specified in the manner that was specified ought to change. I don't think that's going to happen by discussion, so it's probably best that the unions file whatever material they intend.

PN246

If there is some additional evidentiary material to support the proposal then that ought to be filed, and if necessary we'll have a further short hearing to finalise it once the employer responses are in, but as I say, my preliminary view, and it's no more than that, it seems to me at least in relation to the height allowance there's some merit in that issue that's been identified, so if we can resolve that issue at least, that reduces the number of outstanding issues.

PN247

So are the employers able to provide their respective responses by Friday week?

PN248

MS PAUL: Yes, your Honour.

PN249

MS ZHOU: Yes, your Honour.

PN250

THE DEPUTY PRESIDENT: Yes, all right. Yes, go on?

PN251

MS PAUL: Sorry, your Honour, I just note that as we have to file our submissions by Monday, is there an opportunity then for us to have - and in light of this proposal as well as probably some other ones that are going to come, a right of reply for parties for a short period, but to be able to respond to anything that might come in?

PN252

THE DEPUTY PRESIDENT: The short answer would be yes. Mr Maxwell, I haven't looked yet, but have the unions filed materials?

PN253

MR MAXWELL: Not yet.

PN254

THE DEPUTY PRESIDENT: Not yet. Look, what might be appropriate in the circumstances is - and I'm happy to change the timetable for the filing of materials if that assists the parties. Would the parties be assisted by alteration and/or extension of the current timetable?

PN255

MR MAXWELL: I think an extension would be of assistance.

PN256

THE DEPUTY PRESIDENT: Yes, all right. Can I leave it on this basis? Can I get the parties to simply confer on an extended timetable and file it with my Chambers as soon as practicable and I'll ensure that directions for an extended timetable are made. So you can factor in, Ms Paul, any reply into that process.

PN257

MS PAUL: Thank you, your Honour.

PN258

THE DEPUTY PRESIDENT: But for the purposes of at least the height work issue, if the employers could provide responses to my Chambers and to the unions by Friday week.

PN259

MS PAUL: Yes, your Honour.

PN260

THE DEPUTY PRESIDENT: Depending on the nature of the responses, we might be able to convene a further conference to try and finalise the matter. I don't think there's anything more we can do now. I thank you the parties for their attendance, and, Mr Maxwell, thank you, and the unions, for at least putting some numbers on the table, and we can take it from there.

PN261

MR MCGREGOR: Your Honour, sorry, can I just confirm, this potential extended timetable, would that just be for submissions about allowances or also the other matters raised in the decision?

PN262

THE DEPUTY PRESIDENT: I'm happy to extend the timetable generally.

PN263

MR MCGREGOR: Thank you.

PN264

THE DEPUTY PRESIDENT: We'll adjourn on that basis. Thanks very much.

ADJOURNED INDEFINITELY [9.47 AM]