PN1

JUSTICE ROSS: Could I have the appearances, please? Firstly in Sydney, and if you can indicate which award you have an interest in?

PN2

MR S CRAWFORD: Your Honour, Crawford, initial S, for the AWU, appearing in relation to all the listed awards except for Black Coal Mining and Mobile Crane Hire.

PN3

JUSTICE ROSS: Thank you.

PN4

MR S MAXWELL: If the Commission pleases, Maxwell, initial S. I appear on behalf of the Construction, Forestry, Maritime, Mining and Energy Union, construction and general division in regard to the Mobile Crane Hiring Award and the Building and Construction General On-site Award.

PN5

JUSTICE ROSS: Thank you.

PN6

MR B FERGUSON: If the Commission pleases, Ferguson, initial B, and Bhatt, initial R, for the Ai Group, appearing in Building and Construction General On-site Award, the Black Coal Mining Industry Award, the Mobile Crane Hiring Award and the Timber Industry Award.

PN7

JUSTICE ROSS: Thank you.

PN8

MR M GISSANE: Gissane, initial M, appearing for the Master Builders Australia, and our interest is in the Building and Construction General On-site Award.

PN9

JUSTICE ROSS: Thank you.

PN10

MR A KENTISH: If it pleases, Kentish, initial A, appearing for the CFMMEU mining and energy division, and our interest is the Black Coal Mining Industry Award.

PN11

JUSTICE ROSS: Thank you.

PN12

MR H ARJONILLA: May it please, Arjonilla, initial H, for the AMWU with an interest in the Building and Construction, Black Coal and Timber Industry Awards, your Honour.

PN13

JUSTICE ROSS: Thank you.

PN14

MS M ADLER: Your Honour, if it pleases, Adler, initial M, for the Housing Industry Association. Our interest is in the Building and Construction and General On-site Award, and the Timber Industry Award. My colleague, Regan, initial L, is on the phone.

PN15

JUSTICE ROSS: Thank you.

PN16

MR L IZZO: Your Honour, Izzo, initial L, seeking permission to appear for ABI and NSWBC, and we have an interest in all awards but for the two professional diving industry awards that are listed.

PN17

JUSTICE ROSS: Thank you. And in Melbourne?

PN18

MS V WILES: Your Honour, it's Wiles, initial V, for the manufacturing division of the CFMEU, and I'm appearing in relation to the Dry Cleaning and Laundry Industry Award and the Timber Industry Award. Thank you.

PN19

JUSTICE ROSS: Thank you.

PN20

MR D GUNZBURG: Your Honour, Gunzburg, initial D, for the Coal Mining Industry Employer Group, and our interest is in the Black Coal Mining Award.

PN21

JUSTICE ROSS: All right. The purpose of the conference is to identify, in short terms, some differences between the current payment of wages terms in the awards that are listed and the model term, and to inquire as to the attitude of the parties to any variation to the current term, and to indicate that I'd encourage the parties with an interest in each of these awards to have discussions amongst themselves about the form of any variation that's to take place, and will publish a statement following these conferences identifying the process from here on. And in short is it that if there's no opposition to the variation of the award, to insert the model term, then we'll publish variation determinations. In the event there is opposition then a party seeking to change the current award would need to make an application to vary, and in the statement we'll set out the timeframe within which such an application should be made.

PN22

Let's deal first with the Dry Cleaning Award. On its face it seems that it does not apply to the circumstance of summary dismissal, although it talks about – no, sorry, I'll withdraw that. It's ambiguous as to whether it applies to summary dismissal. It refers to the circumstances where an employee's services have been terminated by the employer, and then provides that the payment is to be made no later than the last day of the formal notice period, so I'm not sure how that works in the context of summary dismissal.

PN23

Ms Wiles, what is the attitude of your union to the variation of the current term?

PN24

MS WILES: Thank you, your Honour. In essence, we are opposed to the insertion of the model term. We do note your comments in relation to that aspect around summary dismissal and we would like a further opportunity, which I think we're going to get, to consider those comments, and whether that might include a possible variation, but, at this point, we're opposed to the insertion of the model term.

PN25

JUSTICE ROSS: All right. Ai Group and ABI?

PN26

MR FERGUSON: Not appearing. The Ai Group is not appearing in this matter.

PN27

JUSTICE ROSS: Sorry, yes. No, that's right.

PN28

MR IZZO: Your Honour, our position ‑ ‑ ‑

PN29

JUSTICE ROSS: Sorry, Mr Izzo, don't stand otherwise we can't catch you on video.

PN30

MR IZZO: Certainly. Our position is that we think that a model clause should be inserted into the award, and that's likely the position that we would advance in the proceedings.

PN31

JUSTICE ROSS: Ms Wiles, as I indicated, the statement will provide the parties with a further opportunity to consider what they want to do, and if they seek a variation it will provide a timeframe within which such an application is to be made. Okay?

PN32

MS WILES: Thank you, your Honour.

PN33

JUSTICE ROSS: Can I go to the two professional diving awards. There's no appearance by anyone with an interest in these awards? No.

PN34

MR CRAWFORD: Your Honour, sorry, the AWU does have an interest in these awards.

PN35

JUSTICE ROSS: All right. You can see that there are two issues really: one is that it's confined to wages only.

PN36

MR CRAWFORD: Yes.

PN37

JUSTICE ROSS: And the second is that it can be forwarded by post on the next working day, so that might be more than one calendar day, and it suggests that they can just send them a cheque through our efficient postal service, and it will arrive to them in due course. What do you want to do in respect of this matter, Mr Crawford?

PN38

MR CRAWFORD: Your Honour, I'd like the opportunity to have some discussions with the maritime division.

PN39

JUSTICE ROSS: Sure.

PN40

MR CRAWFORD: I assume that's what it's called of the RCFMMREU, so what I would propose is that I do that and we indicate whether there's opposition to inclusion of the model term by the end of next week.

PN41

JUSTICE ROSS: Thank you. Anyone else have any views on that point? No. We'll adopt that course. Let's move to the Building and Construction General On-site Award, and make a couple of observations about that. It seems confined to the circumstances where notice is given, so it doesn't appear on its face to deal with summary dismissal or where an employee resigns without giving the requisite notice. And it provides, as is common with these clauses, provides it must be paid at the time of termination, but then goes on to say that if that doesn't work then you can do it within two working days, and, again, it's two working days not calendar days. Who would like to go first? There are plenty of you here.

PN42

MR KENTISH: Perhaps, your Honour, if I go first.

PN43

JUSTICE ROSS: Sure.

PN44

MR KENTISH: The CFMMEU opposes the model term. We're quite happy with the existing clause. I note that in regard to the post it talks about registered post, which is different to some awards.

PN45

JUSTICE ROSS: Sure.

PN46

MR KENTISH: But our understanding is there's been no real issues with operation of the current clause.

PN47

JUSTICE ROSS: All right. Ms Adler?

PN48

MS ADLER: Thank you, your Honour. We would support the adoption of the model term. We've expressed that view in earlier submissions, and take your point about a statement inviting an opportunity to make an application to vary. The other matters in relation to payment of wages are outstanding claims that we made back in our December 2016 submission in relation to the frequency of payment of wages that was referred to this Full Bench.

PN49

JUSTICE ROSS: Yes.

PN50

MS ADLER: And I just raise that in terms of next steps in dealing with those claims also.

PN51

JUSTICE ROSS: We've still got them. It's really trying to manage the resources of the parties as much as anything else.

PN52

MS ADLER: Yes.

PN53

JUSTICE ROSS: So we'll conclude this aspect and then we'll move on to the subsequent aspects on payment of wages. There are a number of issues in that that are still to be determined. But once this is completed I'll call it on for mention and then we'll go through each of the outstanding issues and what course of action will be taken in relation to those.

PN54

MS ADLER: Okay. I only raise it today within the context of if we were to make an application to vary in relation to the model term, that it would seem sensible to us to have both of those matters heard at the same time.

PN55

JUSTICE ROSS: Yes. No, no, I follow. It may be that when you come to make your application to vary just include your earlier application so both matters are in the same matter number.

PN56

MS ADLER: Okay. Thank you, your Honour.

PN57

MR IZZO: Your Honour, could I just raise a point just in terms of the housekeeping and procedure in relation these clauses. It appears that the issues involved in a number of these awards are going to be similar, and I think, from my reading of the transcript yesterday, there may have been some discussion about when we ultimately come to make applications, is the Commission's view, or does the Commission have a view that we'll be able to have the proceedings scheduled in such a way that we can make submissions that may address the provisions in a number of awards, because of the commonality of the language?

PN58

JUSTICE ROSS: Yes, the short version is once the applications are in and it's clear what's going to be run I'll call it on for mention and we'll deal with it then, but it will depend on the nature of the award, even where the clause is the same, it may have a different history, there might be different circumstances or reasons. Some of those were canvassed by Mr Crawford yesterday, so, for example, in horticulture with a largely itinerant workforce, and payment in cash is still not uncommon, that seems to have given rise to particular issues in that award. There might be issues in the construction award with daily hire, I don't know. But subject to that, there are certain common clauses, and, yes, it would make sense for, at least the merit argument in relation to any deficiencies in the clause, being heard together. Yes, but we'll wait and see how many applications we get, I suppose.

PN59

MR CRAWFORD: Yes, okay. Thank you.

PN60

MR KENTISH: Your Honour, just in regard to the Construction Award, and an issue raised by the HIA, my understanding is that their frequency of payment matters is a matter that had been deferred by the construction Full Bench until the outcome of these proceedings, not that the matter has been transferred to this Full Bench.

PN61

JUSTICE ROSS: It probably will be. But – yes.

PN62

MS ADLER: I think the correspondence from March 2017, my understanding of that was it was referred to this Full Bench.

PN63

MR KENTISH: Well, your Honour, I don't want to go into semantics, but the transcript of 3 April 2017 before the Full Bench, Hatcher Vice President said I'm not sure if it's before another Full Bench, and I think the position if it was, we have deferred it until the payment of wages bench is concluded.

PN64

JUSTICE ROSS: Sure. One way or another I decide which Full Bench deals with it, so I'll have a look at it and I'll talk to the Hatcher VP. I thought the construction matter had been reserved and had been largely completed; is that right?

PN65

MS ADLER: We have had hearings. We don't have a decision.

PN66

JUSTICE ROSS: So it's been reserved and you're awaiting a decision?

PN67

MS ADLER: Yes.

PN68

MR KENTISH: Yes, and I raise it in this context, in that submissions were made by the parties and reply submissions made in ‑ ‑ ‑

PN69

JUSTICE ROSS: I see.

PN70

MR KENTISH: In regard to this issue.

PN71

JUSTICE ROSS: All right. I'll talk to VP Hatcher and I'm sure he'll be enthusiastic to continue his close connection with the construction industry. So it may rest with him, but see how we go.

PN72

Anyone else in relation to this award?

PN73

MR GISSANE: Yes, your Honour.

PN74

JUSTICE ROSS: Yes?

PN75

MR GISSANE: For the MBA, and before I forget I should mention that the CCF asked us also to make communication with the Commission.

PN76

JUSTICE ROSS: Yes.

PN77

MR GISSANE: Their position as we understand is essentially the same as ours, that we recognise the utility in the model clause subject to previous submissions made to the Commission regarding the daily hire issue and the possibility that a slight amendment may be needed to accommodate that aspect of the award. But overall we are supportive.

PN78

JUSTICE ROSS: All right, as I say we'll publish a statement and - yes?

PN79

SPEAKER: I'll just note that we will also give consideration to whether we advance an application.

PN80

JUSTICE ROSS: Anyone else? No? Can I go to black coal mining. As is usually the case, black coal has a slightly different formulation. I'd make two observations. The first is that it's confined to wages due to the employee so on its face wouldn't appear to cover accrued annual leave, and if it's not paid on the day of termination the employer has a choice, it can be forwarded by post within 72 hours to the last address notified by the employee. CFME - double M - - -

PN81

MR MAXWELL: MMEU.

PN82

JUSTICE ROSS: Yes.

PN83

MR MAXWELL: Mining and energy division. Thank you, your Honour. I have instructions to indicate that the mining and energy division is opposed to the model clause being inserted into the award. If other parties were to make application there may be some value in some discussions occurring between those parties and us, if not prior to that then shortly thereafter.

PN84

JUSTICE ROSS: We'll hear from Mr Gunzburg about what the employer position is.

PN85

MR GUNZBURG: Yes, your Honour. I'm sorry, I couldn't quite hear all that Mr Kentish said but we have had some brief discussions beforehand. I can indicate that the employers would be seeking the introduction of the model clause and we're certainly willing to have discussions with the union parties around that application.

PN86

JUSTICE ROSS: Okay.

PN87

MR FERGUSON: I'd just note we also have a relevant interest and we'll partake in the discussions and give thought to what course of action we take.

PN88

JUSTICE ROSS: All right. It would probably be desirable if the discussions take place prior to the application being lodged. So I'd encourage the relevant parties to do that. Anyone else with an interest in black coal?

PN89

MR ARJONILLA: The AMWU, your Honour, and we're in lockstep with the CFMMEU.

PN90

MR IZZO: And ABI, we'll largely be supportive of the coal industry employer position.

PN91

JUSTICE ROSS: Thank you. Nobody else? All right, the mobile crane hiring. Here the issue relates to the clauses confined to wages due and does not cover accrued NES entitlements. The parties with an interest in this? Mr Maxwell?

PN92

MR MAXWELL: Yes. Thank you, your Honour. Your Honour, we're opposed to the insertion of the model clause.

PN93

JUSTICE ROSS: Anyone else?

PN94

MR FERGUSON: Yes, the Ai Group the same position as others. We hadn't intended to oppose the model clause and we'll just give thought to whether we run a case.

PN95

JUSTICE ROSS: All right.

PN96

MR IZZO: Equally ABI, we're broadly supportive of the model clause. Whether we actually make application to vary, we're currently considering.

PN97

JUSTICE ROSS: Okay. Anyone else with an interest in this award? No? The Timber Industry Award. This is a curious provision. It has got no end of alternatives but it seems to provide that - well, I'm not sure. I don't know that I - - -

PN98

MR FERGUSON: It goes on a bit.

PN99

JUSTICE ROSS: Yes it does and, look, if nothing else we should perhaps look at the plain language version of such a clause. But what does the union say that has an interest in this matter? Ms Wiles?

PN100

MS WILES: Your Honour, the union opposes the introduction of the model clause.

PN101

JUSTICE ROSS: And what do you think the current clause means?

PN102

MS WILES: You're correct in that it is quite a curious clause but I think it does reflect the history of various aspects of the timber industry which is that some people worked in factories and other people worked out in the forest. So I think it kind of reflects that environment. But look, my current instructions are to oppose the introduction of the model clause at this point.

PN103

JUSTICE ROSS: All right.

PN104

MR FERGUSON: Look, I anticipate that this may be one that we've answered a claim in respect of. But I think it's one in which some discussions would be genuinely beneficial to see if there any industry-specific issues that need to be accommodated before we come up with something.

PN105

JUSTICE ROSS: Yes, probably. Yes, look, it may be that there's a particular pattern or history to it.

PN106

MR FERGUSON: Yes, I suspect there are some issues but whether or not this exact form of words should survive?

PN107

JUSTICE ROSS: Yes, yes. Anybody else with an interest in this award?

PN108

MS ADLER: Your Honour, we would echo the comments by AiG and support the adoption of the model term into the Timber Award.

PN109

MR IZZO: And that's the same position for ABI, your Honour.

PN110

JUSTICE ROSS: Look, whether or not an application is made to vary, this is one that's likely to be called back on by the Commission just in an effort to try and understand what is currently there into something that's comprehensible, and we'll do that once the dust settles on the payment of wages matters, once we see whether there's any application that has come in in relation to this award.

PN111

Okay, anything further? No? All right, thanks very much for your attendance. As I mentioned, I'd encourage you to have discussions between yourselves in an effort to reach a consent position. If you are able to reach a consent position then we'll give that significant weight in considering whether to vary the awards. Thanks very much, I'll adjourn.

ADJOURNED INDEFINITELY [11.54 AM]