Fair Work Logo Merrill Logo


Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





10.07 AM, MONDAY, 3 APRIL 2017


VICE PRESIDENT HATCHER:  All right, I'll start by taking the appearances, firstly in Melbourne and perhaps starting on my left going to right.  Mr Coffey, you appear for the CEPU?


MR P COFFEY:  If the commission pleases, yes, Coffey, initial P, representing the CEPU Plumbing Division.




MR COFFEY:  Thank you.


VICE PRESIDENT HATCHER:  Mr Crawshaw, you appear with Mr Maxwell?




VICE PRESIDENT HATCHER:  Ms Coate, do you appear for the NFIA.


MS COATE:  That's correct, yes.


VICE PRESIDENT HATCHER:  Yes, all right.  Mr Eberhard, you appear for the Master Plumbers?


MR EBERHARD:  I do and a number of other Master Plumber associations.


VICE PRESIDENT HATCHER:  All right, thank you.  Ms Adler, you appear for the HIA?


MS ADLER:  Yes, your Honour.  I would just like to mention the appearance of ABI and the New South Wales Business Chamber as well, thank you.


VICE PRESIDENT HATCHER:  All right, thank you.  Mr Schmitke and Ms Stark, you appear for the MBA?


MR SCHMITKE:  Yes, indeed, your Honour.


MS STARK:  Yes, your Honour.


VICE PRESIDENT HATCHER:  And Mr Boanza, you appear for the CCF?


MR BOANZA:  I do, if it please.


VICE PRESIDENT HATCHER:  No other appearances in Melbourne?  All right, then we will turn to Sydney.  So, Mr Crawford, you appear for the AWU?


MR CRAWFORD:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Mr Noble, you appear for the CEPU?


MR NOBLE:  That's right, your Honour, the Electrical Division.


VICE PRESIDENT HATCHER:  Yes.  Ms Paul, you appear for the AIG?


MS PAUL:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Mr Krajewski, if I have pronounced that correctly, for the - is it the Fire Protection Association?


MR KRAJEWSKI:  Yes, your Honour.  Yes, your Honour.




MS VALAIRE:  Yes, your Honour, for Master Plumbers New South Wales.


VICE PRESIDENT HATCHER:  Yes, thank you.  And is that all the appearances in Sydney?


MS VALAIRE:  Yes, your Honour.


MS ADLER:  Yes, your Honour.


VICE PRESIDENT HATCHER:  All right, thank you.  Some parties wish to commence by making opening submissions.  Is that right?


MS ADLER:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Have you had some discussions as to who is going first?


MS ADLER:  I think I have nominated to go first, your Honour.


VICE PRESIDENT HATCHER:  All right, as a witness.  Ms Adler.


MS ADLER:  Thank you, your Honour.  I didn't know whether we should deal with the witness evidence and the correspondence filed regarding objections to that first or if we wanted to - --


VICE PRESIDENT HATCHER:  We might come to that letter.


MS ADLER:  Okay.


VICE PRESIDENT HATCHER:  So, let's hear the opening submissions first and then we will deal with that issue.


MS ADLER:  Thank you, your Honour.


SPEAKER:  Excuse me.  It's from Sydney.  We're actually struggling to hear from the Bar table.


VICE PRESIDENT HATCHER:  All right.  We'll make sure they stay close to the microphones, but can you keep on advising us if there is still a problem in hearing us?




VICE PRESIDENT HATCHER:  We will try to elevate the volume as well.


SPEAKER:  Thank you, your Honour.




MS ADLER:  Thank you, your Honour.  There is just four matters that I would like to address the Bench on in these opening remarks.  We made written submissions dated 2 December 2016 and they are the submissions that I will largely be relying on this morning.  The four matters that I would just like to address is, firstly, I would just like to briefly set the scene, set out what the residential construction is who are our members are, just briefly.  Secondly, I would like to touch on what the Bench is being asked to do in these proceedings and in this four yearly review.  Thirdly, I will go to HIA's variation applications and just briefly outline those for the Bench.  Then, finally, I would just like to briefly touch on some matters, the applications of the CFMEU, just in response to those.


Coming to the first matter that I would just like to deal with just to set the scene for the Bench briefly.  There is just one question that I would like to ask the Bench to keep in mind during these proceedings and when considering HIA's claims.  When.  When will employers in the residential construction industry be subject to the same terms and conditions of employment that apply to most other businesses and their employees and that are appropriate for the current economic and social circumstances.


The residential building industry represents an important component of the Australian economy and HIA represents 40,000 of those working in the industry throughout Australia.  The residential building industry includes cottage construction and multi-unit apartment buildings.  HIA members include builders, trade contractors, design professionals, kitchen and bathroom specialists and manufacturers and suppliers.


In August 2016, it was estimated that about 272,000 people were directly employed in building construction.  That's 2.3 per cent of the total employment.  Yet those employers who are small, non-unionised, award reliant businesses, are faced with outdated, complex and inflexible award provisions that are largely a creature of the past and which only serve to undermine attempts to create efficiencies and increased productivity to help sustain these levels of employment, particularly through the ebbs and flows experienced by the construction industry.


Moving to these proceedings and what the Bench is being asked to do in this four-yearly review and no doubt you will hear a lot of about the arbitral history of the on-site award particularly.  And we know that the preliminary jurisdictional decision has said that that history is important and we don't disagree with that.  However, those historical decisions were made within a particular context and that must be weighed against the modern awards objectives and considered in light of what is a fair and relevant safety net today.


We say that the consideration of the latter should be given more weight than the industrial history of the award.  This is the chance.  This four yearly review is broader than the 2012 modern award review and provides the Commission with the scope needed to vary the on-site award in order to ensure that it is reflective of the needs of industry today, not the needs of industry as they were in the 70s, 80s and 90s.  Nothing that HIA seeks in these proceedings is beyond current community expectations and with that in mind, I'll move to HIA's claims in these proceedings.


HIA has six variation applications before this Full Bench that generally relate to the Building and Construction General On-site Award and one that also relates to the Joinery and Building Trades Award.  We note for the sake of clarity that our claim in relation to the frequency of payment of wages which is outlined at part 7 of our 2 December submissions is before another Full Bench.  Firstly, if I may address our variation application in relation to the industry specific redundancy scheme.


VICE PRESIDENT HATCHER:  I'm not sure it is before another Full Bench.  I think the position was we have deferred it until the payment of wages Bench is - - -


MS ADLER:  Is concluded.




MS ADLER:  Thank you, your Honour.


Moving to clause 17 of the on-site award which is the industry specific redundancy scheme and I would just like to make four remarks about that provision at this point.  Firstly, the provision was inserted into the on-site award in 1990.  How relevant can a provision be, that is 27 years old?  This is the perfect example of an award provision in which the arbitral history has been given far too much, in our view, over the years.


Secondly, this is an industry specific scheme, one of only three that exist across the 122 modern awards.  It is significantly different from the redundancy provisions of the National Employment Standards and we say that it is objectively unfair to maintain the difference between the conditions that apply to the construction industry and those that apply to the majority of employers and their employees in this country.


Thirdly, the ending of employment at the initiative of an employee is not a circumstance in which a redundancy payment should be made.  In fact, it's generally accepted that it's not.  Yet under the industry specific redundancy scheme, a redundancy payment must be made when an employee resigns.  Finally, a redundancy payment under clause 17 of the on-site award must be paid by small businesses.  This is objectively unfair in light of the exemption provided for small businesses under the Fair Work Act.


To address these factors, HIA's variation has two parts.  The first option we put forward is just delete the clause.  Delete clause 17 and have the National Employment Standards apply.  If the Commission is not minded to adopt that approach, we have proposed a second alternative and this alternative has three parts.  The first part is to amend the definition of redundancy and in doing so the objective of that is to not financially punish an employer when an employee resigns.


We put forward two options to address the definition of redundancy.  The first would define redundancy as a situation where employment ceases at the initiative of an employer other than for reasons of misconduct or refusal of duty or a situation where employment ceases because of insolvency or bankruptcy of the employer.  The second option would be to amend the definition of redundancy to simply say that clause 17 does not apply where the employment ends at the initiative of the employee and that would address circumstances where an employee resigns.


The second part of the alternative application is to insert a small business exemption.  That would apply in the same way as a small business exemption under the National Employment Standards operates.  The third component is to insert an incapacity to pay provision which again is the same as that provided by section 120 of the Act and would equally then give employers the opportunity to apply to the Commission circumstances that are considered to be appropriate.


Moving to our application in relation to time off in lieu of overtime.  This application would apply in relation to the on-site and the joinery award and, again, despite a Full Bench of this Commission determining to insert toil provisions in the vast number of modern awards, the industrial history of the construction awards has been given such weight that it prevented a common matter decision applying in on-site and the joinery award.  HIA submit that the evidence that we have put forward in terms of a member survey shows the desire by HIA members and the employees to access toil arrangements.


Moving to our claims in relation to allowances.


VICE PRESIDENT HATCHER:  Just excuse me.  I'm just trying to sort out that echo, Ms Adler.


MS ADLER:  Thank you, your Honour.


VICE PRESIDENT HATCHER:  Anyway, we will just proceed on as best we can.


MS ADLER:  We got two claims in relation to allowances under the on-site award.  The first deals with the tool an employee protection allowance at clause 20.1A of the award and that provision operates in such a way that the allowance is payable in circumstances that we say go beyond what is appropriate for an expense related allowance.  For example, the allowance is payable even when an employee fails to properly maintain their tools.  It is also payable when an employer provides all the tools of the trade and the employee is required to provide none.


HIA's proposed variation seeks to remedy this situation to ensure that employees in receipt of the allowance are required to maintain tools and protective equipment and that an employer who does, in fact, provide all of the required tools are not also required to pay the allowance.  The second claim in relation to allowances deals with the fares and travel patterns allowance which is clause 25 of the on-site award.


There are three aspects to our proposed variation.  The first is that we propose to delete the outdated notion of radial areas.  Evidence from HIA members is that the use of radial areas is confusing and creates uncertainty in relation to the payment of entitlements.  Secondly, we propose to vary the circumstances under which the daily fares allowance is payable so that an employee who does not actually attend work and is on an RDO would not receive the allowance and that those who are provided with a company vehicle and equally do not incur the expense associated with the travel to and from work would also not be entitled to the allowance.


Finally, we propose to amend the current distant work condition to condense a number of subclauses that rely on the radial areas mentioned at the outset.  Under the proposed provision, an employee - under our proposed provision, I beg your pardon, will be entitled to payments for time spent in travelling and other expenses when they travel more than 50 kilometres from the employee's usual place of residence.


Moving to our variation in relation to the hours of work clause which is clause 33.1 of the on-site award.  The way hours of work are arranged impacts on a business's ability to be flexible and to be able to respond to the demands of the market and their employees.  However, we say the current provisions place a variety of limitations on how hours of work can be arranged.  Firstly, an employer cannot average hours.  This is at odds with the notion of encouraging flexible modern workplaces.  Secondly, an employer under the current provision is unable to choose how an RDO system is implemented.  For example, under the current clause, an employer cannot choose whether to fix one day in a cycle for all employees to take their RDO or to roster employees to take their RDOs on different days during that cycle.


Finally, only employees on distant work are allowed to bank RDOs which makes no sense.  Why shouldn't all employees and their employers be able to agree to bank RDOs where it suits their circumstances.  Again, the HIA member survey and evidence from Lauren Marantz demonstrates the desire of HIA members for more flexibility in relation to structuring of working arrangements.


Our final variation relates to the calculation of annual leave loading under clause 38.2B and it's proposed to remove the inclusion of the fares and travel patterns allowance under clause 25 from the calculation of that loading.


We say the variation seeks to address the peculiar situation in which an employee is entitled to a proportion of an allowance that will firstly not be incurred while on annual leave.  And, secondly, does not form part of the minimum wage calculation that is payable generally while an employee is on annual leave.  So, an employee won't receive the fares and travel patterns allowance as part of their annual leave payment, yet it's taken into consideration for the calculation of the loading.


There is HIA's six variation applications and I did just briefly want to address the claims made by the CFMEU specifically.  We made reply submissions to both their claims and the claims of the AWU and the AMWU dated 16 March 2017 and there are just four elements of the CFMEU's claim specifically that I would like to highlight to the Bench.


The first relates to their claim in relation to coverage of the on-site award and their variation to change that.  We say that if granted the claim would not only undermine the primacy attached to the industry coverage of modern awards.  It would create further confusion and uncertainty in relation to award coverage which is at odds with the modern awards objectives.


Secondly, the CFMEU have two claims in relation to allowances.  We say they are not supported by any evidence.  There is no evidence of the need to insert a communication equipment's allowance and in reality the special rate which is proposed to provide an option to rationalise allowances simply creates an additional award provision without any real benefit.


Thirdly, in relation to the claim to insert a provision to deal with the hours of work for casual employees, we would say this proposed provision would actually create more confusion and add further cost.  Notwithstanding the fact that it was actually an issue raised by the Fair Work Ombudsman and taken up by the union who has actually not provided any evidence that there is any issue with the current provisions as they are or how they apply.


Finally, HIA generally opposes the introduction of competency based wage progression for trainees under the National Training Wage and our written submissions detail our opposition to the union's claim in relation to living away from home allowances.  That is all I wish to say at this time, your Honour.


DEPUTY PRESIDENT HAMILTON:  You make the point there is a difference between the redundancy scheme and the award and that and the NES in the TCR case.  What would you call the award scheme?  Would you call it a deferred pay scheme or what?


MS ADLER:  It's an industry specific redundancy scheme is what it's called at the moment.  That's how it's characterised.


DEPUTY PRESIDENT HAMILTON:  Yes, but you make the point that it's not something different.


MS ADLER:  Yes, we say that the way that the word "redundancy" is used in that provision --  -


DEPUTY PRESIDENT HAMILTON:  It's a deferred pay scheme, isn't it?  Isn't that what it is, in fact?


MS ADLER:  I don't know if I could characterise it that, but it's definitely not a redundancy scheme in the general sense.  I think, perhaps, when I come to make formal oral submissions and we discuss the history of it and how it came to be that way, it may have been that that's what it was originally intended to do, to make a payment to address somebody's service in the industry or with a particular employer.  But, I guess, our variation seeks to actually have the provision deal with what we all understand redundancy to be which does not include when an employee resigns.




MS ADLER:  Thank you.




MS PAUL:  Excuse me, your Honour.  It's Suki(?) from Sydney again.  We are struggling to hear all of the Bench as well.


VICE PRESIDENT HATCHER:  All right, well, again, we'll endeavour to stay close to our microphones.  Can you hear that?


MS PAUL:  Yes, very faintly, thank you, your Honour.


VICE PRESIDENT HATCHER:  We will try to turn up the volume again if we can.  Who would like to go next?  Mr Schmitke?


MR SCHMITKE:  Thank you, your Honour.  The remarks that I seek to make are much or not too dissimilar from those of Ms Adler insofar as providing the Commission with some context that would provide an understanding about the lens through which Master Builders has approached this particular matter and then I'll just give a brief outline and snapshot of the claims that we have made, the basis for them and comment on the claims of the other parties.


But overall, it's our submission to this Commission that there is a rare opportunity that we have at the moment to ensure that the construction awards better meet the modern awards objectives.  It is potentially a rare opportunity.  We do know that there is legislation before the Parliament which may impact on the provisions under which this particular view is taking place.  We don't know what will happen with those but, nonetheless, this could be the last occasion there is an opportunity to fix what we would say are real problems with the awards and their provisions.


Of course, there are real problems, we say, with these awards and their provisions and interpretation.  In fact, even if I use the phrase "real problems", perhaps that is a slight understatement and as somebody personally who is reasonably new to this sector, I can certainly understand why it is that the on-site award and related awards are often held up as the poster child of complexity and confusion.  They are unwieldy.  They have been the subject of commentary from many parties including the Commission itself insofar as the useability of these instruments.


This is the opportunity to make some genuine real improvements to fix the problems that exist.  We want the modern awards that apply in the construction sector to become a fundamental useable relevant part of the Fair Work system and the general industrial relations system that affects the building and construction sector.  It needs to reflect, obviously, what is transpiring in our sector today, but it also needs to be sustainable so as to ensure it meets the future needs of industry in the future.  And it needs to be relevant to tomorrow, essentially.


But it's our view that as the award stands right now, it barely meets any of those requirements and, in fact, it is perhaps, if anything, a bit of a snapshot of the past.  No doubt, the parties sitting at this Bar table like me will have gone back and researched some of the earlier provisions in various construction awards and it's uncanny the extent to which there are similarities between awards created in 1968 and awards that exist today.


This needs to be considered against an industry backdrop and a general workplace relations environment which whilst we experience the same problems that exist in any other sector, there are also some nuances that are relevant and peculiar to the building construction sector.  Yet it's a sector which is known for high levels of disputation and, therefore, clarity of the instruments is important.


Yes, the sector is subject to all sorts of enquiries and Commissions and we have got industry specific laws and we have got particular codes of practice and things that apply to our sector.  But we are a very large part of this economy.  In fact, I think the most recent capital accounts data demonstrated that in terms of contribution and GDP, building and construction is now number two on the list.  So, effectively the second biggest sector in the economy.  There is over 330,000 business entities in this sector.  Overall, there is about a million people employed in this sector.  That's one in ten workers.  It's around 50 per cent of tomorrow's tradespeople are trained and get their start in our sector and it's a sector that's growing.


The evidence that we will lead will show that we need 30,000 new people in this sector each and every year just to maintain the current employment levels and over the next decade, we're going to need maybe 100,000 more.  So, we need to ensure that the instrument doesn't restrict future growth.  We need to ensure that it's relevant to today and that it can accommodate the needs of the sector as we move forward.  There is a predominance of small business in our sector.  In fact, around or approximately 90 to 95 per cent of the entities in this sector are small business employers and it's something again from a personal perspective continues to amaze me given the unwieldy nature of the various awards.  If we are to move forward, obviously we need to have one eye on the past and - - -


VICE PRESIDENT HATCHER:  Sorry, Mr Schmitke, when you said the small business employers, do you mean within the definition in the Fair Work Act or some other definition?


MR SCHMITKE:  It's the definition - that is a good question, your Honour - it's the definition in relation to business size.




MR SCHMITKE:  Yes, an ABS definition, yes, but I don't have with me the exact data reference.


DEPUTY PRESIDENT GOSTENCNIK:  It's under $10-million turnover.  Is that the point?


MR SCHMITKE:  No, no, I think it's - I will need to provide that information.  I'll take it on notice.




MR SCHMITKE:  In terms of looking at how we can make things better, as I said, we need to have one eye on the past.  But that said, we also need to look forward.  If I am to look at the history of the various proceedings in this Commission over this award, it's been torturous, is the way I'd describe it.  But it hasn't necessarily resulted in a better award per se.  That's not a criticism of the parties.  Those with an interest in these instruments haven't done their best to try and make them better and improve the.  But the simple facts are, we still have an award which has provisions within it which simply don't suit modern workplaces.


It is through that lens that we approach this matter, being what's relevant for today and what's going to be relevant for the future, what's going to assist small business and what's going to drive employment growth in our sector.  Something that we are all mutually interested in.  The claims, therefore that we have advanced, I suppose, can be considered into three broad categories.  There's changes that we say will clarity it and provide award users with certainty.  There are changes to ensure that the instruments are contemporary and flexible and then there are changes that will ensure the instruments are sustainable and capable of accommodating the future needs of the sector.


Very briefly, I might just provide a couple of examples in terms of changes to provide certainty and increase clarity around various provisions.  These are matters such as the application of fares and travel allowance.  There are some clauses which are confusing, for example, the mobile crane adjustment formula.  We have provided some changes to definitions to improve the understanding an application of provisions.  For example, with respect of board and lodging.  There are some provisions which are duplicated in relation to overtime provisions for apprentices and trainees and there are some other provisions which are signpost provisions directing award users back to other sectors to ensure that they better understand the way the award operates.


In terms of changes to ensure that these instruments are contemporary and flexible, they involve removing various provisions that we say are outmoded, irrelevant, unnecessary or no longer applicable.  There are claims to insert provisions that better reflect contemporary industry practices and then there are changes aimed at generating flexibility or at least providing the option of flexibility to industry participants.  For example, there is the toil provision and agreements to vary and bank RDOs and things like that, the way they're accrued.


Thirdly, we have changes to ensure the award is sustainable moving forward.  These involve things like the removal of provisions that work to regulate work, health safety matters, consolidating remaining allowances, introduction of junior rates, ensuring that shift provisions meet the future needs of the sector, and changes to reduce complexity and burdens for small business involving the industry specific redundancy scheme.


That is the lens that we have looked through when determining the approach to this matter and it's about, as Ms Adler from HIA noted, it's about making certain that workplaces operation in a manner not dissimilar to every other workplace and that this sector is treated in a way which is consistent with other sectors.  In terms of the claims made by - and these comments are mainly focussed with respect to the CFMEU claims - we have not really been able to get too much agreement in terms of discussions about the various parties' claims, but it's our view that we would say that the claims advanced by the union parties generally would increase the level of detail within the award, make it more prescriptive and protect the remnants of yesteryear and stop any potential future flexibility in the instruments so they can accommodate tomorrow's needs.


You know, that's fine if the aim of the award is to make it so unworkable as to go and, you know, think about an enterprise agreement or keep people at the Bar table employed.  But that's not what the aim of the modern award is.  It's a dense, complicated document and we need to think about it from the perspective of the needs of small business.


The evidence that we would seek to bring is intended to provide the Commission a snapshot of how the award actually applies on the ground and how it's interpreted and the difficulties associated with that.  We want to provide an insight regarding the problems and challenges that small business employers and employers in our sector experience on a daily basis which, to be blunt, is something that you can't fathom unless you are involved in it on a day to day basis.  It is something, again, on a personal note, that surprised me.


We bring that evidence because, as we noted at the outset, this is a rare opportunity that the Commission has to make an unworkable set of instruments much more workable.  It's an opportunity to improve the awards in the areas that cause confusion and make them modern and relevant and better met the modern awards objective.  In that way, we can ensure that these awards are a relevant part of the current regime and will improve workplace entitlements and improve the conditions that the sector experiences in terms of its industrial arrangements; if it pleases.


VICE PRESIDENT HATCHER:  Thank you.  Is there any other employer party who wishes to make an opening submission?  Can I first emphasise, it's not compulsory and don't feel the need to stand up and say you agree with somebody.  If you actually want to make an opening submission, go ahead.  Mr Eberhard.


MR EBERHARD:  Thank you, your Honour.  I will be very quick.  Originally the Master Plumbers Group had sought the six variations to the Plumbing and Fire Sprinklers Award.  Through circumstances and time, we now pursue three:  the industry specific redundancy scheme, shift work and also some changes to overtime and the insertion of a particular clause in regards to that.  It's my understanding that contrary to the vast majority of proceedings that are before the Commission at the moment, that the shift work and the overtime provisions are supported by the majority of the employer associations and are not opposed by the CEPU Plumbing Division.


Like everything else, the industry specific redundancy scheme is opposed by the union in that particular instance, but we think that in regards to the shift work, what we are trying to do in regards to that is not change the terms and conditions, but put them into a better structure so that it is more understandable.  In regards to overtime, insert the provisions of a day's overtime will stand alone, purely and simply as a matter of clarification.  So, the confusion that may exist out there is no longer in existence; if the Commission pleases.


VICE PRESIDENT HATCHER:  Thank you.  Is there any other employer party who wishes to make an opening submission?  Mr Boanza?


MR BOANZA:  Yes, thank you, your Honour.  Thank you, members of the Bench.  The Civil Contractors Federation is the peak industry body representing Australia's civil construction industry.  It has branches in all the states and it has around 2,000 contractor and associate members nationally.  In our diverse membership is - - -


MR CRAWFORD:  Sorry, your Honour, we are struggling to hear that.




VICE PRESIDENT HATCHER:  We are just going to place a microphone in front of Mr Boanza.


MR BOANZA:  Yes.  Is that better?


MR CRAWFORD:  Yes, thank you.


MR BOANZA:  Thank you.  Our diverse membership is strong individual state branches and a strong relationship with our members offer us a unique perspective to comment on the building and construction award.  Following extensive consultation with our members, CCF made application to vary ten award provisions and only for the Building and Construction Award.  Two of those matters were resolved by the Full Bench relating to payment of annual leave and cashing of annual leave and that has left us with eight variations.  I heard your Honour comment that payment of wages has been moved to another, so I won't comment about that.


VICE PRESIDENT HATCHER:  No, it's staying with his Bench, but it is being deferred pending the current proceedings before the payment of wages Bench.


MR BOANZA:  Thank you, your Honour.  So, our remaining proposals are for the variation of clause 17.2 which is the definition of "redundant".  We have put an application for the introduction of junior rates into this award.  We are seeking a definition of "dirty work" in clause 22.2H.  We are seeking changes to the living away from home allowance.  We are seeking a definition or a breakdown of the value of the living away from home allowance.  We are seeking variations to 25.8B, provision of transport, and to clause 4.10, definition of "civil work" in relation to the Asphalt Industry Award.


It is the very strong held view of the civil industry that this award does not meet the modern award objectives as stated in section 134 of the Fair Work Act.  This award is 144 pages long.  It has 43 clauses and seven schedules.  It is fair to say that it is very difficult for the average employer without dedicated industrial relations resources to understand the provisions of this award.  Even industrial relations professionals often disagree about the meaning and application of certain clauses and employees can be given conflicting advice.


Clearly, this award fails some of the very important modern award objectives for employers.  Why?  We say it fails to provide the industry with an instrument that is fair and simple and easy to understand.  The making of this award also created overlaps with other awards, most notably the Asphalt Award.  This award fails to promote social inclusion through increased workplace participation particularly youth employment due its restrictive and antiquated employment provisions.


It most certainly fails to provide the industry with a modern award that provides for modern and flexible work practices and the efficient and productive performance of work.  The use of modern award powers in relation to this award, does not seem to have been given sufficient weight to employment growth, inflation or the performance and competitiveness of the national economy or the construction industry.  It imposed (indistinct) obligations on employers not found in any other industry.  No surprise, the employers are very confused, they are frustrated and disappointed with the way that this award dictates employment conditions in the industry and it restricts productivity.


Nowhere is this more evident than in the issue of redundancy, clause 17 of the award, which requires the employers to pay redundancy when an employee elects to resign even though there is continuing gainful employment in offer.


315 construction companies, large and small, from across Australia, agreed to have their names inserted into our submission in support of changes to the redundancy provisions of the award.  Rather than call hundreds of employers as witnesses, CCF's witnesses with past experience running civil construction businesses have provided written evidence about the negative effects on full time employment and business costs that this redundancy provisions have on the industry.


A longstanding CCF branch CEO has given written evidence on behalf of the civil industry that this view is prevalent across the industry.  As we have stated in our written submission, it is simply contrary to common sense that an employee who is not redundant is able to terminate their employment unilaterally at any time for any reason and be entitled to redundancy.  In today's workplace, the argument that the building industry is somehow different and less secure than other industries is simply not correct.


The lack of union rights is another issue that employers also feel very strongly about.  Employers want to employ young people.  They understand that they need to provide the next generation of workers.  But it is a fact that in the current award, the minimum hourly rate for the young employee wanting to train in the industry is $19.57 per hour plus $17.43 travel allowance per day.  This is very high for someone entering via - not entering - not entering - I apologise - entering by an apprenticeship or a traineeship.  It places young people in competition with mature adults.


For an employer in this high risk industry there is simply no incentive to look at junior employees in this award.  Junior employees need more supervision.  They need more mentoring than older employees.  Having to pay the same money employers would choose an older employee every time.  Currently, the only way to secure lower rates for young people is via apprenticeships or traineeships.  To force young people to commit like this and employers to only have this option of employing is simply counterproductive.


Many young employees are interested in trying the industry before committing to the additional responsibility of formal training.  And, similarly, some employers often also prefer a period of trial before committing to such training.  Junior rates are needed in this award because as we started in our written submission, the industry firmly believes that the lack of junior rates has greatly contributed to the low number of junior employees, apprentices and trainees entering the industry.


Again, we have 317 employers fixing their names to our submission calling for junior rates to be inserted into the award agreeing that the better employment of the next generation is critical to nation building employees.  Again, we could have called many witnesses, but we have instead provided written submissions from experienced employers and a CCF branch CEO to speak on behalf of CCF members and to confirm that these views are prevalent in the industry.


The requirement in clause 25.8B that an employer pay an employee a travel allowance when provided with a company vehicle to get to and from work and often used for private use does not make any sense to employers.  It is evident that such an employee incurs no cost to get to and from work.


Another provision that our employers are very unhappy about is the condition on daily travel allowance paid under clause 25.10 to any employee engaged under this award.  And this is another provision that is outdated and unfair.  It is considered by the CFMEU in paragraph 154 of it submission in reply.  If an employee not working on a building site is not entitled to this allowance, then let's make it clear in the award.


A definition of "dirty work" in clause 22.2H needs to be provided either as part of a rationalisation of allowance as proposed by the MBA or as a standalone definition.


Finally, we say that the overlap issue between the Building and Construction General On-Site Award and the Asphalt Award requires the Commission to clarify coverage so that employers can ascertain which award needs to be used when working with asphalt products.  Please let me know if I can be of any assistance to you.


VICE PRESIDENT HATCHER:  Just one issue, and you don't need to address this now, but can I flag it, is that section 156(3) of the Fair Work Act says that the Commission can only vary modern award minimum wages if we are satisfied on work value grounds.  On one view, the insertion of junior rates in circumstances where adults rates may currently be payable would be a variation to modern award minimum wages.  So, at some appropriate stage and, again, you don't need to answer this now if you don't want to, you might need to address whether that section applies and if so whether work value grounds exist for the variation of your proposal.


MR BOANZA:  Thank you, your Honour.


VICE PRESIDENT HATCHER:  Yes, is there any other employer group which wants to make an opening submission?  I think we have covered everyone in Melbourne.  Is there anyone in Sydney who wishes to make an opening submission on behalf of an employer group?


MS PAUL:  No, your Honour, not on that.


MS VALAIRE:  No, your Honour.




MR KRAJEWSKI:  Your Honour, Krajewski, Fire Protection Association.




MR KRAJEWSKI:  Your Honour, really, our interest relies upon the Plumbing and Fire Sprinkler Award and essentially our position is that we would seek a variation to the definition of redundancy as per our previous submissions.




MR KRAJEWSKI:  The points that Ms Adler, in fact, has raised in her opening remarks equally apply to that award as they to do the other awards before the Commission.  Your Honour, we won't make any more submissions or comments at this present point in time, but we just rely upon the submissions we have put forward previously, if the Commission pleases.


VICE PRESIDENT HATCHER:  Thank you.  Now I'll turn to the unions.  Mr Crawshaw, do you want to make any opening submissions or Mr Maxwell?


MR CRAWSHAW:  We do, but Mr Maxwell is going to do it, your Honour.




MR MAXWELL:  Thank you, your Honour.  Your Honours, members of the Bench, the awards that establishes the safety net for building and construction workers have a history of over 100 years and trace back to some of the first matters determined in a federal jurisdiction.  The Archer Award created in 1913 was the first federal award for builders labourers and provided for a minimum hourly rate of one shilling, four and a half pence for hour in Sydney and Adelaide.  Overtime rates of time and a half for the first two hours, then double time.  An additional two and a quarter pence per hour for country work, the fares incurred in travelling to and from country work and travelling time of up to eight hours per day to travel to and from country work.


The payment of any fares incurred over thruppence per day for tower work was also included.  It provided for a 48-hour week which included eight and three quarter hours per day, Monday to Friday, and four and a half hours on Saturdays.  One hour's notice of termination was provided by the award.  There was a limit of 12 bricks to be carried in a hod and no more than 40 bricks in a barrow.  There was no sick leave, no annual leave and no redundancy.


Since then, the award safety net for building and construction workers has, along with those applying to workers in other industries, gradually improved.  But these improvements were not given on a plate by the kindness of employers.  They were achieved through concentrated industrial and political campaigns, robust and lengthy negotiations with employer groups and, in many cases, arbitration through the various courts and tribunals.


Building and construction workers were the first to achieve the eight-hour day.  They were at the forefront of achieving shorter hours in the 1950s and again in the 1980s.  The 38-hour week became an award condition in 1982.


Over the past 100 years, award conditions were developed that catered specifically for the building and construction industry.  These awards recognised that the majority of work was short-term and project based, that there would be lags between projects and contracts leading to iterant work and employment.  And that despite the best efforts of all concerned in the industry, it cycled through periods of boom and bust.


Conditions such as daily hire which allows employers to terminate workers at a day's notice have been a continuous feature of the industry.  In return, workers have been paid to follow the job loading to compensate for periods of unemployment between jobs.  The introduction of the 38-hour week recognised the project nature of work in the industry and that work is usually arranged over six days of the work with 16 hours of overtime the norm.  So, instead of working shorter hours each week, the RDO system was introduced which allowed work to continue for eight hours per day, Monday to Friday, and regular overtime worked on those days and on the Saturday.  In return, building and construction workers would get a paid day off every fourth Monday.  The paid RDO meant that building and construction workers would get two continuous days off work at least once every four weeks.


VICE PRESIDENT HATCHER:  Mr Maxwell, those characteristics, do they extend to residential building?


MR MAXWELL:  They do and that is the point that under this award daily hire employment applies to labourers and tradespersons.


VICE PRESIDENT HATCHER:  I was really addressing that question towards arrangement of work over six days and regular 16 hours overtime.


MR MAXWELL:  The Saturday work is a regular occurrence in the building industry across the board.  They may not work the two hours overtime, Monday to Thursdays as the norm in the commercial construction, but work on Saturdays is a regular occurrence in both the - I suppose, I wouldn't call it the residential industry, I would call it, I suppose, the single-storey domestic housing industry because if you looked at the construction of the multi-storey unit apartments which forms the majority of residential construction these days, that that is based on the six-day week.


DEPUTY PRESIDENT GOSTENCNIK:  But overtime is subject to the usual limitations.




DEPUTY PRESIDENT GOSTENCNIK:  Capacity to refuse and subject to the reasonableness requirements, particularly on Saturdays.


MR MAXWELL:  Yes, but I would suggest that there is a general acceptance that work on Saturdays is the industry norm.


DEPUTY PRESIDENT GOSTENCNIK:  Yes.  I had always understood that there would be a complaint about Saturday work because if the relevant trades didn't show up on the day, that had the effect of causing an unproductive work schedule which is consistent with the voluntary nature of Saturday work.


MR MAXWELL:  I think if you look at the building construction industry, the main reason for the six-day week is to ensure that as much - sorry - is to ensure that the work can be completed in as short a time as possible and as is the norm, it makes it very difficult for people to take days off because that will then interfere with the scheduling of work on the projects.




DEPUTY PRESIDENT HAMILTON:  You attribute the different award conditions to the different nature of the industry and you have mentioned some of the characteristics.  But they are also in part attributable to the manner in which certain benefits were obtained.  For example, the redundancy wasn't the result of the TCR test case, as it was, I think in just about all the other awards, it was the result of a series of campaigns and there were innumerable decisions and arbitral cases on those campaigns.  So, it's got a different - so, it's not just nature of the industry, it's also the nature of how benefits were obtained, isn't it, that's relevant?


MR MAXWELL:  It's the nature of how they were obtained, but it's also the decisions of the relevant tribunals at the time because the Australian Industrial Commission recognised that building and construction workers will be not covered by the TCR case and separate proceedings ran their course.  During the award modernisation, there was a specific definition of industry specific redundancy scheme inserted into the Fair Work Act that identified that they related not just to redundancy but also termination and that is a basis on which the industry specific redundancy scheme was contained within the Building and Construction General On-Site Award.




MR MAXWELL:  So, there is a lengthy arbitral history, but it has been revisited on many, many occasions since the 1990s.




MR MAXWELL:  Your Honours and Commissioners, for many building and construction workers, work is out in the open.  It is exposed to the weather and subject to delays caused by rain, strong winds and extremes of temperature.  To cater for such situations, the inclement weather provision in the awards was developed which provides for us to 32 hours pay in every four-week period where work is interrupted.  Industrial tribunals have long recognised that building and construction workers have to follow the work.  That is when work on one project and one location finishes, they will have to move another location for work.


For some workers, this can include working on many different jobs in one year or a month or even a day.  This constant shifting of work location has led to the development of the award fares and travel patterns allowance which compensates workers for the varying costs of travelling to and from home to work and different locations and for the varying travel times involved.  The payment of the allowance based on radial areas was intended to provide a fairly simple and easy to administer system that allows for one payment for work anywhere within a given radius.


Construction work can also require workers to travel long distances to where the work is located.  Distant projects such as the construction of industrial complexes, power stations, dams, wind farms, roads, railways and LNG facilities readily come to mind.  But there are also specialisation by many companies which often see mobile crane hire crews, shopfitters, stonemasons, refractory workers and glaziers being required to work away from home for up to six months or longer on a regular basis.


In the 1950s and 60s, projects such as the building of the Snowy Mountains Hydro Scheme involved the established of construction camps or towns close to the projects where workers would live often with their families.  But changes in travel, particularly air travel, led to the development of fly-in, fly-out projects in the 1970s, with workers accommodated in temporary accommodation close to the project for periods of intense work and long periods away from their friends and families.  These arrangements are now a regular feature of the industry.  The building and construction awards contain specific conditions that cater for those arrangements.


The project base and short-term work periods that characterise the industry also led to the development of the industry specific redundancy scheme which has been a feature of the industry since the 1990s.  As I said just a moment ago, this covers both redundancy and termination.  This was achieved after a prolonged industrial dispute in the industry, lengthy and numerous arbitration proceedings and applications to the High Court.


The industry specific redundancy provisions in the construction award have been visited on many occasions since 1990.  They were revisited in the award simplification proceedings in 2000.  They were revisited in the making of the modern awards during award modernisation in 2010.  And they are again revisited in the 2012 award review proceedings.  To say there is a degree of Groundhog Day involving industry specific redundancy scheme, I don't think is an understatement.


As people have mentioned today, the building and construction industry employs over one million people and is an important sector of the Australian economy.  A significant proportion of these employees, but not the whole one million, are covered by awards before the Commission in these proceedings.  These awards cover the manufacture and assembly of building products, the provision of specialist lifting services and building and construction workers working on a broad spectrum of on-site construction projects ranging from the construction of a single house or a simple warehouse all the way up to major highways and bridges, iconic structures such as theatres and sporting stadiums, high rise office and residential towers and complex industrial facilities costing billions of dollars.


Whilst the awards cover these workers, the advent of enterprise bargaining has meant that the award does not always apply to these workers.  According to research undertaken by or for the Commission, approximately ten per cent of workers covered by the Building and Construction General On-Site Award are award reliant and I note there that award reliant means that they may rely on one or more of the conditions in the award.  But this does not mean that awards are not important to the other 90 per cent.  The majority of enterprise agreements - - -


DEPUTY PRESIDENT GOSTENCNIK:  Presumably, that figure would be higher in the non-commercial sector.


MR MAXWELL:  It would, yes.  But in terms of enterprise agreements, the majority of enterprise agreements incorporate the award and the award conditions apply where the agreements are silent.  The award is a safety net against which the agreements are assessed for the better off overall test.  The project nature of the work in the industry, the boom and bust cycle and the itinerant nature of the work means that as workers move between employers, there will be times when their conditions are set solely by the award.  That is why the awards are so important to building and construction workers and why they have fought so hard to achieve awards that contain conditions that address specific working and employment arrangements found in this industry.


The awards before the Full Bench in these proceedings were made by the Australian Industrial Relations Commission Full Bench in accordance with the legislative requirements at the time.  In the 2012 award review, the awards were assessed as meeting the modern awards objective.  In the four yearly review, the legislative scheme applying is slightly different, but the overarching requirement to ensure that awards provide a fair and relevant safety net of terms and conditions remains.


Awards are beneficial instruments for employees.  The awards as they stand now are the safety net.  As recognised in the preliminary jurisdictional decision where a party seeks a change to the award, they must advance a merit-based argument in support of the proposed variation.  Where a significant change is proposed, it must be supported by submissions that address the legislative provisions and be accompanied by probative evidence properly directed to demonstrate the facts supporting the proposed variation.


In these proceedings, the Full Bench has before you many proposed variations that fall within the significant change category.  These include proposed variations to the redundancy clause, wage rates, allowances, fares and travel, hours of work, coverage, overtime, ordinary hours of work, and our own claim in regard to distant work provisions.  We submit that the Full Bench would take a cautious approach in assessing these claims and adopt a strict application of the tests I have just referred to emanating from the preliminary jurisdictional decision.


Just to briefly summary the claims that are before you from the CFMEU Construction General Division.  These are claims are summarised in paragraphs 8 and 9 of the 9 December 2016 submission made in support of the variations.  In regard to the living away from home claim, the summary of the changes that we seek are identified in paragraph 14 and to briefly identify what they are, in clause 24.2, we seek a new provision to preclude employers putting undue pressure on employees to provide a false address.  This was a provision that was contained in the pre-modern awards.  It is no longer included in the modern award, but we believe it should be re-inserted for the reasons set out in our written submission.


In clause 24.3, we recognise we are seeking significant increases in the allowances provided in the award.  The allowances we propose are $913.88 per week and $130.55 per day.  That allowance is to cater for workers providing their own accommodation and own meals.  In clause 24.3, we seek to insert a new paragraph to provide for specific meal allowances to apply where the employer only provides accommodation.  We note that the CCF have also made a similar application, although they haven't identified what allowances they seek in their application.


In clause 24.3B, we seek to update the minimum accommodation requirements to reflect modern standards of accommodation and modern methods of communication.  In clause 24.3, we seek a new provision to require employers to provide employees who are required to live in a construction camp at a remote location with their own specific room for the duration of the time spent living away from home.  I'm not sure how many of the members of the Bench were aware of the motelling dispute that erupted in the North West Shelf over recent years, but that is the issue that we seek to address with that provision.


We also seek to increase the weekly and daily camp allowance where free messing is not provided and that's in line with the meal allowance provisions that we seek where accommodation only is provided.  In clause 24.7A, we seek to clarify that the transport is to be from the employee's usual place of residence and to remove the reference to second class rail.  I think it's very rare that - well, I don't think you will be able to find a second class rail ticket in Australia these days.


In clause 24.7, we seek to change the employees' entitlement to recreation to a period of seven days unpaid rest and recreation leave exclusive of any days of travel after each continuous three-week period of work where the duration of the week on the job is scheduled for more than eight weeks and to provide for the rest and recreation leave after each 12 weeks of continuous service.  Just on that point, the award already provides for two days of paid rest and recreation.  But there is a difference depending on whether it refers to civil construction work where it's an entitlement after ten weeks or if there is another construction worker who after three months on the job and the 12 weeks is somewhere in the middle and that is the basis for that claim.


In regard to the other claims that we are seeking, they are identified in paragraph 9.  In regard to coverage, we are proposing a variation to cause 4 to ensure the primacy of this award applying to employees engaged in the on-site building engineering and civil construction industry.  And that is dealt with starting at page 72 of our written submission.


In regard to clause 19, minimum wages, what we seek there is to vary clause 19.3 to ensure that all the allowances that are paid for all purposes are identified in the calculation of the hourly rate for employees above daily hire and weekly hire.  And our submissions dealing with that start on page 77.


In regard to the expense related allowances, there is one claim there in regard to the new communications equipment allowance and this is for employees who are required to use two-way radios, walkie talkies, but also mobile phones and tablets during hours of work.  There is an increased reliance on employers expecting employees to use mobile phones and tablets on building sites to help in the programming and scheduling of work and that's dealt with from page 79 of our written submission.


In regard to special rates, that is a claim we made in the 2012 award review, but then withdrew and we re-agitate it now.  It seeks to provide for a consolidated special rates allowance so that if the employer paid that allowance then they would have to then pay a range of special rates that are identified in the award.  I suppose it's one way that we believe that the rationalisation of allowances could occur without disadvantaging employees.  But it would be something that was introduced by agreement.  It is not a mandatory provision that we are seeking to apply.  That is dealt with from page 80 of our written submission.


In regards to the national training wage variation that we seek, we are unclear as to whether this remains with this Full Bench or whether it is now being dealt with by the separate Full Bench that has been established dealing with the national training wage schedule and we seek some guidance from the Bench as to the status of that claim.  If it is to be dealt with the other Full Bench, then we won't make any further submissions in regard to these proceedings.


DEPUTY PRESIDENT HAMILTON:  Correct me if I am wrong, but isn't that Bench dealing with the issue of whether there should be just a reference to the miscellaneous award with the schedule rather than have the national training wage schedules in every award?  Isn't that the issue in that Bench?


MR MAXWELL:  That is the issue.  That is my understanding of the issue and it's discrete to that issue and we have - - -


DEPUTY PRESIDENT HAMILTON:  I will stand corrected, but I think that's the issue.


MR MAXWELL:  Yes, and we have made submissions in those proceedings on that discrete issue, but we have a claim in regard to the national training wage schedule where we seek to - sorry, not the national training wage schedule - to the national training wage clause in the construction award which deals with competency based progression for civil operations trainees.  And to the extent that that matter remains before this Full Bench, then our submissions on that start on page 82 of our written submission.


The final claim we have is in regard to hours of work.  I think it was a matter that was raised briefly by Ms Adler.  We seek to clarify in the award that the ordinary hours of work of casuals are eight hours per day, Monday to Friday, just the same as any other worker under the award.  Some people say that the variation is not needed because there is no ambiguity or no uncertainty and yet very clearly we have an opinion from the Fair Work Ombudsman that differs.  And, to be blunt, we don't always accept the opinions of the Fair Work Ombudsman.  At the end of the day, we believe those matters are the proper jurisdiction of the courts or this tribunal in terms of setting out what the entitlement is.  But we believe they will be of assistance to the parties if that matter was clarified under the award.


Those are our claims which will be expanded on during the submissions following the taking of evidence.  To conclude our opening statement, we submit that the variations we propose are necessary to ensure that the awards provide a fair and relevant safety net.  Our submissions contain merit based arguments to support the variations.  Our submissions address the legislative provisions and, where necessary, we have provided probative evidence to demonstrate the facts supporting the variations.  At the end of these proceedings, we hope the Full Bench agrees with our submissions and varies the awards to ensure a fair and relevant safety net for building and construction workers.  And if there is no more questions, they are the submissions we wish to make in opening.


VICE PRESIDENT HATCHER:  Thank you.  Mr Coffey, do you want to say anything in opening?


MR COFFEY:  Not at this time, thank you.


VICE PRESIDENT HATCHER:  In Sydney, Mr Crawford, do you want to say anything in opening?


MR CRAWFORD:  Your Honour, can I just refer the Full Bench to our reply submission dated 10 March 2017?




MR CRAWFORD:  In particular, pages 3 to page 9.  Those submissions contain a range of economic data from the ABS about the construction industry.  We say that pretty clearly that data demonstrates the industry has been performing very, very well since the modern award was introduced in 2010.  It is one of the most profitable industries in Australia.  So, in terms of setting the scene which I think is a term Ms Adler referred to, the scene, we say, is very much one where by the industry is performing very well and whilst obviously there is some criticism about some terms in the award being outdated, et cetera, the bottom line is that despite however the award is currently expressed, it is not holding back the economic performance of the industry at all.  The industry is performing very well.


In addition, a lack of wages growth is a significant problem in Australia at the moment.  That is well documented, so we would say that the Commission should be very carefully in reducing current employment conditions in an industry that is performing very well and in an economic context where a lack of wages growth is actually widely considered to be holding back the Australian economy as a whole.


Aside from that general point, the AWU does have a claim to insert reference to soil, concrete and aggregate testing at the CW2 classification level in the on-site award.  Currently, clause 4.10B(v) which is part of the definition of the civil construction industry and the clause I just referred to does include within that definition the testing of soil, concrete and aggregate when it is carried out at a construction site in or in connection with work under clause 4.10B(i).


So, clearly, within the definition of the civil construction industry in the on-site award, we say it is intended to cover testing work, but we say there is currently an oversight in that the classification structure does not specifically refer to the testing of soil, concrete and aggregate.  So, that is the issue that we are trying to address.


There has been - Mr Crawshaw would probably recall - there has been issues in the Commission previously related to this point.  There was litigation involving a company called Coffey Information Pty Ltd.  We have referred to the case and the background in our submissions, but contrary to what some of the employer parties are submitting, we are not seeking to, I guess, appeal the Coffey litigation by this award review.  We say the Coffey litigation identified a problem in the current on-site award in terms of the oversight in a classification structure and we simply are seeking to rectify that and we think on a historical analysis that it's reasonably clear that the CW2 level is a modest claim.  And we have I think three witnesses appearing on Wednesday afternoon in relation to that claim and that's all I really wanted to say at this point.


DEPUTY PRESIDENT GOSTENCNIK:  Mr Crawford, can I just ask you a question about the material on pages 3 to 9 of your reply submissions?  There is some data extracted there in relation to small businesses.  My recollection of the way in which the ABS collects this data is small business is one of 20 employees or less or less than 20 employees.  Is that the basis upon which that data is presented?


MR CRAWFORD:  Yes, your Honour.  At paragraph 7 of our submission, we have referred to the definitions.




MR CRAWFORD:  The footnote will take you to a link.


DEPUTY PRESIDENT GOSTENCNIK:  Yes, thank you for that.


MR CRAWFORD:  Yes, yes.


VICE PRESIDENT HATCHER:  Thank you.  And, finally, Mr Noble, do you want to say anything in opening?


MR NOBLE:  No, your Honour.


VICE PRESIDENT HATCHER:  Thank you.  All right, well, that's all the opening submissions.  I propose that we now take a morning tea adjournment of approximately ten to 15 minutes.  When we return, we will deal with the issue of the CFMEU objections and also we need to touch upon the MBA application for confidentiality with respect to the witness which is number 17 in the witness list.  And once we have dealt with those issues, we will turn to the first witness.  We will now adjourn.


MR CRAWSHAW:  Sorry, just on that last point, your Honour, I was going to refer to a decision of your Honour, the Vice President, in Amie Mac [2015] FWC 774, but I haven't made copies of that.


VICE PRESIDENT HATCHER:  All right.  I wasn't proposing to deal with the application to finality, but just to raise what I think are some of the issues troubling the Full Bench about that application.




VICE PRESIDENT HATCHER:  All right.  We'll now adjourn.

SHORT ADJOURNMENT                                                                  [11.23 AM]

RESUMED                                                                                             [11.42 AM]


VICE PRESIDENT HATCHER:  Mr Crawshaw, your objections document, if I can just cut to the chase, why shouldn't we admit the statements and note your objections as matters that can be the subject of submissions about their weight?


MR CRAWSHAW:  Well, there's two reasons why you should address these matters at this point in time and it really comes to - one of the reasons that I was briefed in this matter is the approach that has been taken by the employers to the evidence, which flies in the face of the decision in the preliminary jurisdictional issues decision in relation to this four yearly review.  Particularly at paragraph 23 that talked about the need for significant change to be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.


VICE PRESIDENT HATCHER:  Well, obviously that principle applies but why can't we deal with whether that principle's been satisfied as a matter of weight in final submissions rather than as an issue of the initial admissibility of the statements.  That's the - - -


MR CRAWSHAW:  I think it's important to identify at this stage in the proceedings that the employer evidence is almost totally constituted by the categories that are in our objection, namely; opinion but also the hearsay evidence of views of members of employer organisations.  One of the reasons for determining that at this stage is to affect the degree to which cross-examination might be needed.  Now I'm assuming Brown v Dunn doesn't apply to these proceedings, even in relation to facts but certainly if our objections are correct there would be little if no need to cross-examine on parts of the proposed evidence that's identified as opinion, conclusion or speculation.  In relation to the hearsay evidence and views of members of the organisation, I suppose it's impossible for us to cross-examine on those views because it's by its very nature uncross examinable.  Putting aside the surveys the identity of the members isn't even known to us.


In relation to the survey, the identity of the - - -


VICE PRESIDENT HATCHER:  I'm sorry, Mr Crawshaw, the survey is which witness?


MR CRAWSHAW:  The surveys, they're dealt with at - well there's two - the survey evidence is dealt with at page 6 of your objection, paragraphs 13 through to 23, and there's two statements of Mr Castledine that refers to those surveys.  That's the CCF witness.  I think separately the CCF survey is attached to the CCF submission.  Then Kirsten Lewis from the HIA gives evidence of the MBA survey - sorry, the HIA survey.  Now part of our objection - - -


DEPUTY PRESIDENT HAMILTON:  Mr Crawshaw, isn't the approach to the surveys to analyse them as you've done, hear what they say about that analysis and then decide if it's probative value or not.  Not to deal with it at this stage.


MR CRAWSHAW:  Well, as I say, it effects the degree to which we cross-examine.  If our objections are correct in relation to the surveys, if they're accepted - - -


DEPUTY PRESIDENT HAMILTON:  Well, you've put the submission, why would you need to cross-examine about the fact that only HIA members responded?  I mean you've put the submission, you don't need to do more than that.  You've made your point.


MR CRAWSHAW:  Well, to be frank, the only reason we were requiring Ms Lewis and Mr Castledine for cross-examination was to put the points that we've already made.  In relation to that, by the way, the HIA survey is not in evidence.  We have obtained it through the processes of the Commission and I suppose to make our - if the evidence is to go, Ms Lewis' evidence is to go in, we would also wish to put the actual survey in to make the points that are contained in our objection.  So I realise that's not necessarily an answer to your Honour's question.  It probably supports what you're saying in a way but it will affect the extent to which we cross-examine, so that's why I say a ruling should be made at this stage because quite frankly - - -


DEPUTY PRESIDENT HAMILTON:  Surveys of this kind have been used in enumerable proceedings and exactly the same points you have made have been made on enumerable occasions and have been discussed in enumerable Commission decisions.  Sometimes in your favour and sometimes not.


MR CRAWSHAW:  Well, yes, and - - -


DEPUTY PRESIDENT HAMILTON:  That's the way to deal with it, not as an objection but as an analysis of the survey.


MR CRAWSHAW:  Well, there's surveys and surveys.  There's surveys and surveys.  The CCF survey is not the same as the HIA survey.  The CCF survey goes no further insofar as it goes than identifying the views of some of the CCF members.


DEPUTY PRESIDENT HAMILTON:  So you'd like us to exclude the employer surveys, would you?






MR CRAWSHAW:  In relation to the proposed evidence by various MBA witnesses, as to the provisions of an award decision or document, we've made the objection there.  We've identified various errors in those statements in our submission.  Once again, if that was accepted there'd be no need for us to put those matters to the witnesses.  Then the redacted statement, well that's another issue which I understand your Honour wants to raise.  That's why I say it should be decided now.


VICE PRESIDENT HATCHER:  Well, have you put everything you want to put in relation to those objections now, having regard to the written submission?




VICE PRESIDENT HATCHER:  In relation to the CFMEU list of objections we note those objections.  We propose to admit when the appropriate time comes the objected parts of the statements into evidence and of course the CFMEU will be free to make submissions, whatever submissions it wishes to make as to the weight, if any, to be assigned to that evidence.  To the extent that any other party has made objections to evidence, I assume they will take note of that ruling.


Mr Schmitke, there's the issue of the confidentiality application.  Can I just indicate we don't propose to deal with that to finality right now, unless you wish us to, but can we indicate that insofar as the application is based upon certain beliefs of the witness about alleged consequences arising from giving evidence, our preliminary view is this that confidentiality can't be granted on the subjective belief of a party, unless there's some subjective evidence that provides some substantiation to those beliefs to suggest there is a real basis - a real objective basis for the concerns expressed we would not be inclined to grant that application.  We'll just make that observation now.


If you want some opportunity between now and when the witness is due to give evidence to provide us with something of an evidentiary nature which would support those concerns on an objective basis, we'll hear it but I think you can reasonably anticipate that in the absence of any such material being forthcoming it is likely that the application for confidentiality will not be granted.


MR SCHMITKE:  Thank you, your Honour.


VICE PRESIDENT HATCHER:  I'll leave it in your hands as to how you wish to deal with it from that point.


MR SCHMITKE:  Yes, thank you.


VICE PRESIDENT HATCHER:  Are there any other preliminary matters that we need to deal with?  No, all right, well - - -


MR SCHMITKE:  Your Honour, if I could just make one observational comment.  Earlier the Commission made reference to the payment of wages matter and the matters that were being dealt with by another Bench.  Master Builders has a claim that goes to payment of wages which isn't necessarily the subject of the specific matters being considered by that Bench insofar as it deals with the payment of wages by cheque, and subsequent time off for the employee to go and cash that cheque if paid in that particular method.  We have a claim to delete that particular provision in the context of this proceeding.  I just seek guidance as to whether it would be best dealt with here or dealt with elsewhere.  It's a nuance matter that doesn't necessarily fall within frequency or timing or method, things like that.


VICE PRESIDENT HATCHER:  I'll have to check that.  We'll do that over the luncheon adjournment.  There was correspondence sent to the parties I thought as to the specific claims which were going to be deferred.  We'll check that again and we'll give you a definitive answer after lunch.


MR SCHMITKE:  Thank you, your Honour.


VICE PRESIDENT HATCHER:  Mr Schmitke, I think Mr Solomon is the first witness in the list and he's in Sydney.  Is that correct?


MR SCHMITKE:  Yes, indeed that is correct, your Honour.


MR CRAWSHAW:  Just before we get onto the witnesses, can I just seek clarification.  The witness list has he witnesses going till Thursday and I think the parties acted on the basis that submissions will commence - - -




MR CRAWSHAW:  Next week?




MR CRAWSHAW:  Yes.  Because what Mr Maxwell and I had in mind was to on Wednesday and Thursday to be located in Sydney as there won't be witnesses other than one located down here.  So we wouldn't have done that if you were going to go straight into submissions.


VICE PRESIDENT HATCHER:  Right, thank you.  Mr Schmitke, did you want to call Mr Solomon, who is in Sydney?


MR SCHMITKE:  Yes, your Honour, if I could please call Mr David Solomon.


VICE PRESIDENT HATCHER:  Mr Solomon, are you there?




VICE PRESIDENT HATCHER:  Just hold on, we'll just have to turn up the volume a bit if we can.  Mr Solomon - can I speak to the Court Officer, can you move the microphone closer to Mr Solomon while he takes the oath or affirmation.  Yes, that's probably the best we can do.  We'll administer the oath or affirmation.


THE ASSOCIATE:  Please state your full name and address.


MR SOLOMON:  David Solomon.


THE ASSOCIATE:  And address?


MR SOLOMON:  (Address supplied)

<DAVID SOLOMON, AFFIRMED                                                    [11.56 AM]

EXAMINATION-IN-CHIEF BY MR SCHMITKE                         [11.56 AM]

***        DAVID SOLOMON                                                                                                                  XN MR SCHMITKE


MR SCHMITKE:  Mr Solomon, just checking that you can hear me appropriately?‑‑‑I can hear you.


Thank you.  Mr Solomon, have you prepared a statement in relation to this matter?‑‑‑I have.


Do you have a copy of that statement with you?‑‑‑Yes, I do.


Is that a document titled "Statement of David Wooten Solomon"?‑‑‑It is.


Signed by you on 16 December 2016?‑‑‑That's correct.


I'd seek leave to have that statement tendered and marked as an exhibit.


VICE PRESIDENT HATCHER:  The statement of David Wooten Solomon dated 16 December 2016 will be marked exhibit 1.



MR SCHMITKE:  Thank you, your Honour.  Your Honour, if I might just inquire at this juncture, there are a number of matters that Mr Solomon would provide evidence in respect to with regard to the statement of Dr Ayres, who's a CFMEU witness.  With permission of the Commission I've asked the witness to read Dr Ayres' statement and I would seek to - - -


SPEAKER:  Excuse me, I think the witness can't hear well.


MR SCHMITKE:  Sorry.  I'd seek leave to just ask Mr Solomon a number of questions about Dr Ayers' statement which might be of practical convenience to all the parties.


VICE PRESIDENT HATCHER:  You want him to read it, what do you mean by that?  I assume he's already read it, has he, or not?


MR SCHMITKE:  Yes, Dr Ayers' statement, yes, your Honour.

***        DAVID SOLOMON                                                                                                                  XN MR SCHMITKE


VICE PRESIDENT HATCHER:  So you just want to ask him some questions in reply purporting to Dr Ayers' statement.  Is that right?


MR SCHMITKE:  Yes.  As to whether - because this way we - yes.


VICE PRESIDENT HATCHER:  Yes, right.  Is there any objection to that?


MR CRAWSHAW:  Well, it may create a difficulty in that I then have to - I then have to get instructions from Dr Ayers, who I think has just arrived.  That raises two questions; firstly, I assume that there's no objection to Mr Ayers being here when Mr Solomon is giving evidence, given that they're both - well, we certainly put Mr Ayers forward as an expert.


VICE PRESIDENT HATCHER:  Mr Schmitke, is there any objection to Mr Ayers being in the court room while this is occurring?


MR SCHMITKE:  No, there's not.


VICE PRESIDENT HATCHER:  Right, thank you.  Second point?


MR CRAWSHAW:  The second issue is after the evidence is given I will need, I think, some time to talk to Dr Ayers to see whether I have to get any instructions on that evidence.


VICE PRESIDENT HATCHER:  Right, well we'll see how far this gets us.  Mr Schmitke.


MR SCHMITKE:  Thank you, your Honour.  If I could just make the comment that Dr Ayers' statement was attached to the union's reply submission and Mr Solomon's statement was attached to our initial submission, and that file has created a practical difficulty.


VICE PRESIDENT HATCHER:  Yes, I understand, just proceed.


MR SCHMITKE:  Mr Solomon, do you have a copy of the statement that's in front of you which is titled "Witness statement of Dr Gerard Ayers"?‑‑‑Yes, I do.


Have you read that statement?‑‑‑I have.

***        DAVID SOLOMON                                                                                                                  XN MR SCHMITKE


Mr Solomon, are there any comments that you would like to make with respect to the content of that statement?‑‑‑There are.


Mr Solomon, can you please take us through those comments?‑‑‑Yes, I can.  In Dr Ayers' statement, we'll call it paragraph 9, up to that point I pretty much agree.  Paragraph 9, in regard to the first sentence, in relation to the harmonised state of Australia.  If the WA and Victorian set aside the harmonised states and territories and have adopted in my view a largely similar approach and consistent philosophy on enforcement and application of the WHS laws, although I support this contention there are many reservations that I have in my role in safety as a regulator in New South Wales.  The conversations I've had regularly traverse senior representatives on regulatory consistency consistently advising that they're committed not to introducing changes and approaches of the enforcement and application of the WHS laws, which would cause to differ from those of the harmonised states and territories.  By that I mean in numerous times I've had conversations with the regulator where they do not want to recognise anything but or stand away from the standardised WHS approach of harmonised states.  In regard to the sentence in this clause, we note that the courts in each state are responsible for handing down penalties for breaches of OHS and WHS laws, however the courts are independent judicial bodies at both the state and federal levels.  Even as if contended, in the third sentence in clause 9, that even if a single court was in place to support a national WHS system, this would not guarantee a consistent approach to penalties for breaching WHS law, given the independence of the courts, as each case is dealt with on its own merit.


MR CRAWSHAW:  Your Honour, I object.  It's a strange objection but the witness is giving - obviously reading some document and is going so fast that I can't follow it.  Now it may be that I'm getting old and other people can follow it better but if he's got a written document in front of him, perhaps we should see it rather than - - -


VICE PRESIDENT HATCHER:  I was going to ask that, Mr Solomon.  Are you reading from something?‑‑‑I'm referring to my notes in relation to the witness statement from Mr Gerard Ayers.


MR SCHMITKE:  Yes, your Honour, if I could assist.  The witness had on his own volition prepared some written notes with respect to Dr Ayers' statement.  As I said, there wasn't an opportunity for us to file a response to Dr Ayers' statement, so to that end the witness has those notes in front of him.


VICE PRESIDENT HATCHER:  Are they in a typed form that we can all read?

***        DAVID SOLOMON                                                                                                                  XN MR SCHMITKE


MR SCHMITKE:  I understand that they are, yes.


VICE PRESIDENT HATCHER:  Well, it might be easier if we have those notes in front of us so that we can actually follow the evidence being given.  I think I agree, Mr Crawshaw, it's going so fast I'm not really following what Mr Solomon's saying myself.


DEPUTY PRESIDENT HAMILTON:  Do you have a copy yourself, sir?


MR SCHMITKE:  Well, yes, your Honour, I was provided a copy only essentially this - - -


DEPUTY PRESIDENT HAMILTON:  Could we copy them perhaps?


MR SCHMITKE:  Well, yes, however what I would say though is I was only provided a copy of these comments this morning and I didn't understand that the witness had taken that liberty of preparing a reply, as it were. So to the extent that there's - that I have had an opportunity to have a look at the notes, I have not.  I've simply asked the witness to have regard to them when providing it.


VICE PRESIDENT HATCHER:  Well, unless we see it, the witness will just keep on reading from the notes that we haven't seen.


MR SCHMITKE:  Well, I'm - - -


VICE PRESIDENT HATCHER:  What do you want to do?  I mean it's not acceptable for the witness simply to read from notes that nobody else has access to.  If you want to provide us with the notes we'll follow it, otherwise we'll ask Mr Solomon to put his notes aside and answer the questions vive voce.


MR SCHMITKE:  Well, your Honour, in that case I'm happy to provide a copy of the notes with the perhaps caveat that not all of them are matters that would necessarily be matters that would be - that I would seek or - sorry, there are some matters within these notes that go to matters that are not necessarily the subject of this proceeding.  So with that caveat in mind - - -


VICE PRESIDENT HATCHER:  If you want to cross any part of it, we won't - we'll disregard it.  Look, we might take a short adjournment.  When you've got the notes in a form that address the matters the witness wants to deal with, provide it to the Court Officer and we'll have copies done for all the parties.

***        DAVID SOLOMON                                                                                                                  XN MR SCHMITKE


MR SCHMITKE:  Yes, your Honour.


MR CRAWSHAW:  Can I just raise this, just to try and use time usefully.




MR CRAWSHAW:  Apart from Mr Ayers, the other witness that was going to give evidence today was Mr Middleton who I understood earlier was already there in Canberra.  I don't have a great deal of questions for him.  Perhaps while that process is being carried out, I could ask Mr Middleton the questions I have for him and he can get away, rather than waiting all day for Mr Solomon and Mr Ayers.


VICE PRESIDENT HATCHER:  Mr Boanza, Mr Middleton is your witness.  Did you have any evidence-in-chief from him, apart from his statement, the content in his statement?


MR BOANZA:  No, your Honour.  Just got a few questions for him, just to establish his credentials but nothing to lead, no.


VICE PRESIDENT HATCHER:  Mr Schmitke, is that an appropriate course?  That is we'll interpose Mr Middleton.  Mr Solomon can stand down, you can look at those notes while we're hearing Mr Middleton.


MR SCHMITKE:  Yes, of course.


VICE PRESIDENT HATCHER:  Then when you're read to deal with it, at least after the end of Mr Middleton's evidence, we'll come back to that.


MR SCHMITKE:  Yes, of course, thank you, your Honour.


VICE PRESIDENT HATCHER:  Mr Solomon, sorry for the interruption.  Can we ask you just to stand down for a little while until we sort this issue about your notes out and we'll just interpose what I hope is a short witness, Mr Middleton, from Canberra?‑‑‑Yes.

<THE WITNESS WITHDREW                                                          [12.05 PM]

***        DAVID SOLOMON                                                                                                                  XN MR SCHMITKE


VICE PRESIDENT HATCHER:  If we move to Canberra.  Mr Middleton, can you come forward to the witness box, please?


MR MIDDLETON:  Sir, I'm the only one in the room so I'm not quite sure how to give an oath.


VICE PRESIDENT HATCHER:  I'm just asking about that.  Just hold on a sec, Mr Middleton.  Mr Middleton, we'll just ask you to stay standing.  A Court Officer in Melbourne will administer the affirmation, we can't do the oath because we can't do it through the use of a Bible and then we'll take your evidence.  Do you understand that?


MR MIDDLETON:  Yes, the affirmation is what I would have proposed to do in any event, thank you.




THE ASSOCIATE:  Please state your full name and address.


MR MIDDLETON:  Peter William Middleton, (address supplied).

<PETER WILLIAM MIDDLETON, AFFIRMED                           [12.07 PM]

EXAMINATION-IN-CHIEF BY MR BOANZA                               [12.07 PM]


VICE PRESIDENT HATCHER:  Mr Middleton, do you have a copy of your statement of evidence with you?‑‑‑I do, sir.


Thank you.  Mr Boanza.


MR BOANZA:  Thank you, your Honour.  Can you hear me okay, Mr Middleton?‑‑‑A bit louder please, sir.


Bit louder?‑‑‑Thank you.


Can you hear me okay now?‑‑‑That's good, thank you.

***        PETER WILLIAM MIDDLETON                                                                                                  XN MR BOANZA


That's good, thank you.  So you a copy of your statement there with you.  Do you wish to make any corrections to that statement?‑‑‑Reading it again last night I wouldn't mind a small adjustment to one paragraph if that's acceptable.


What would that be, Mr Middleton?‑‑‑Paragraph number 12.


Number 12.  What would you like to change?‑‑‑It relates to how difficult it is for small employers to get involved in the training of plant operators because of the expense of it, and the availability of plant.  So I wouldn't mind saying the current definition plays into the hands of those employers who have the ability and resources to train young people but choose not to do so.


Thank you.


VICE PRESIDENT HATCHER:  Just one moment?‑‑‑As distinct from small employers who can't train.


MR BOANZA:  Thank you.  Now can I ask you - - -


VICE PRESIDENT HATCHER:  I just want to get that, "who choose not to do so" as distinct from what?‑‑‑As distinct from smaller employers who might like to train people but maybe don't have the resources in terms of available plant or foreman and supervisors who can supervise that training.


Thank you.


MR BOANZA:  Thank you, your Honour.  Now in point 6 of your statement you say the building contractors is a medium sized civil company that specialise in the civil construction award?‑‑‑Yes.


In your view, is your company a typical civil construction company representative of the civil construction industry?


MR CRAWSHAW:  I object to that.


VICE PRESIDENT HATCHER:  How does the witness know whether he's a representative or not?

***        PETER WILLIAM MIDDLETON                                                                                                  XN MR BOANZA


MR BOANZA:  Sorry, yes, I am asking whether he's a representative.


VICE PRESIDENT HATCHER:  No, but how can he know that?


MR BOANZA:  With his 40 years' experience in the industry, your Honour.


VICE PRESIDENT HATCHER:  What, different companies or the same company?


MR BOANZA:  Different companies according to his statement.


VICE PRESIDENT HATCHER:  I'll allow the question.


MR BOANZA:  Thank you?‑‑‑In trying to answer that question, I have been involved in the industry for a long time, worked in quite a number of different states and more specifically, probably over the last 20 years, I have regularly attended civil contractor conferences and met many similar style companies from around Australia and I guess it constantly surprises me how similar the problems are that companies have from right around Australia.  Many our size, some smaller and some indeed larger.


You say in point 10 of your statement that the current definition of redundancy is perverse and a disincentive to train young employees.  How would the proposed variations to the definition of redundant change your company's policy in relation to employment and training?‑‑‑I'd like to think that come what may we've been a company that has done a lot of training right through the history of the company, which in fact is 60 years old next year.  I'm not sure that it would change our behaviour much but what I expect it would do is change the behaviour - - -


MR CRAWSHAW:  I object to the witness giving evidence about other companies.  He was only asked about his company.


VICE PRESIDENT HATCHER:  Mr Boanza, I asked you before whether you had any evidence-in-chief to adduce, I thought you said no.  That is the purpose of these statements is to set out the evidence the witness would give.  Is there any need for us to go through all this?


MR BOANZA:  Well, I guess not, your Honour.  I mean the evidence - his evidence is there.  This is just to establish his credentials given that the CFMEU has, you know, put in an objection to his evidence.

***        PETER WILLIAM MIDDLETON                                                                                                  XN MR BOANZA


VICE PRESIDENT HATCHER:  Well, we've ruled on the objection.  The statement will go into evidence when you tender it.




VICE PRESIDENT HATCHER:  It will speak for itself.  Is there any reason for these additional questions?


MR BOANZA:  No, your Honour.  No.


DEPUTY PRESIDENT HAMILTON:  Are you tendering your witness statement?




VICE PRESIDENT HATCHER:  The statement of Peter Middleton dated 8 December 2016 will be marked exhibit 2.



VICE PRESIDENT HATCHER:  That's the evidence-in-chief.  Mr Crawshaw.

CROSS-EXAMINATION BY MR CRAWSHAW                            [12.12 PM]


MR CRAWSHAW:  Mr Middleton, you say you're the recent past managing director of Woden Contractors.  When did you relinquish that role or did you relinquish that role?‑‑‑January last year, sir.


January 2016?‑‑‑Correct.


Did you relinquish that role voluntarily?‑‑‑Yes, and I'm still employed by the company on a part-time basis.


As a director?‑‑‑No, I am indeed - I do indeed remain a director of the company but I do actively work probably two days a week in just assisting the new managing director and management team where they ask me to do so.

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


You're paid as a director I take it?‑‑‑No.


You're not paid as a director.  Are you paid in your part-time role?‑‑‑Yes.


What do they call you in that part-time role?‑‑‑I don't think there's an official title.  I think I'm just the grey haired gentleman.


I know the feeling.


DEPUTY PRESIDENT GOSTENCNIK:  Perhaps they call him Peter?‑‑‑They do indeed.


MR CRAWSHAW:  When you relinquished the role as managing director, did you get any severance benefits?‑‑‑No.


Can you just tell me what is the total wages bill or wages and salaries bill per annum for the Woden group?‑‑‑North of $5 million.


Has that been consistent for the last few years or has it gone up or down?‑‑‑We've had a relatively stable workforce of about 75 people for a long time now.  It had been my aim as managing director and indeed manager for years before that to try and keep a stable workforce and balance the work that we took on to try and keep that number stable.


You've been largely successful in that aim?‑‑‑Up and down, yes.


Well many employees have been there over 25 years haven't they?‑‑‑We're losing them, they're all getting older but certainly some were.  I think one of our foremen has just recently retired and he clocked up 33, 34 years.  I've just clocked up 32.  We had a labourer who's well over 20 years with us.  There's a history of long term employment, yes.


Have you looked at your website?‑‑‑I have just briefly.  It was done post my standing down.  The new broom and yes, I have.


Doesn't it say many employees have been there over 25 years?‑‑‑I can't recall that statement and I'd have to go and look at our current records to see - to see how many there are.

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


Do you disagree with the statement that many employees have been there over 25 years.  That's the question I put to you?‑‑‑I'm not disagreeing with that.  Over the years there have been made employees at Woden who have been there longer than 25 years.


No, but I'm talking about currently there's many employees have been there over 25 years?‑‑‑I would have to check the records and see the answer to that question.


Have you looked at the statement on your website that the bulk of on-site personnel have been employed over a long period of time?  Have you seen that?‑‑‑I think I recall that statement, yes.


Well do you agree with that statement that the bulk of on-site personnel have been employed over a long period of time?‑‑‑I would say that, yes.  A long period of time I suppose being relevant to industry standards.


What do you mean by that?‑‑‑We offer - well we offer people jobs, we're not a - we're not a company that does project work here and there all round the state or even Australia.  We offer people long term work in Canberra, stably based, 60 year history as of March next year and many people have spent a long period of time working for us during those 60 years.


I just want to ask you a question.  What do you understand in terms of the current industry specific redundancy scheme in the award is the position with an employee who is dismissed for bad behaviour?‑‑‑If he's dismissed for bad behaviour?


Yes?‑‑‑My understanding is I think on that one we would take advice from our employer group, I'd be quite clear if there was illegal behaviour we wouldn't have to pay redundancy but the question of bad behaviour might be subjective and I think before we did anything we would take advice from our employer group on that matter.  Because it's a very, very rare event for us.


Didn't you tell the Trade Union Royal Commission conduct by Mr Heydon that the current definition of redundancy in the award applied to employees dismissed for bad behaviour?‑‑‑I can't recall the detail of that statement.  It was quite a lengthy statement made I think a couple of years ago but in all of these things - - -

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


MR BOANZA:  I object to that question, your Honour.  Mr Middleton's here to give evidence about his statement to his Full Bench, not to give evidence about what he might have said to the Royal Commission.  They are two different inquiries.


MR CRAWSHAW:  Well, I'm trying to get to the basis for his opinions about the redundancy clause and his understanding of the redundancy clause.


VICE PRESIDENT HATCHER:  Yes, the question's allowed.


THE WITNESS:  I've lost my train of thought, sir.  Can you help me again there?


MR CRAWSHAW:  Well, you don't remember is the answer.  You don't remember what you said to the Heydon Royal Commission on redundancy?‑‑‑I think the thrust of it would be exactly what I'm proposing here today via my statement.  The key - the key question, not the subtleties of it.  The key question has not changed.


Now you've told us that in 2016 you had to pay redundancy to eight employees.  See that in paragraph 14, have you got your statement in front of you?‑‑‑Yes, I do, yes, correct.


You paid a total of 45 weeks redundancy pay in that year?‑‑‑Yes.  Yes.


In 2016, are we talking about a calendar year 2016 there?‑‑‑Yes, we are.


What were the figures for 2015?‑‑‑I don't know, I didn't ask our office manager to look that up for me.


Well you were the managing director in 2015?‑‑‑Yes.  Yes, I was.


Well do you recall anyone receiving redundancy in 2015?‑‑‑I don't recall a specific person but I'd be very - I'd be on unsure ground saying that we would have.  Last year was a particularly bad year because of the starting of the light rail project in Canberra.

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


Sorry, why did that make 2016 a bad year?‑‑‑Well, the light rail project in their wisdom have agreed to an enterprise bargaining arrangement that pays very, very high wages on a short term basis, and some out of town contractors have approached our good staff and employees who we've trained, and have told them in fact that there's many years work ahead with the future light year project, and asked them to come across and of course with the fact that they get paid redundancy by us as a result of making that decision, there's been that extra flow of people.  That wouldn't be typical but I'd have to go - if you wanted precise numbers I could relatively easily do that within a 24 hour period.


Well what about 2014, is your answer the same?‑‑‑The same comment.  I'm happy to get those figures for you.


But similar to 2015, you can't tell us what the - what redundancies occurred and you certainly can't identify any particular employee as redundant?‑‑‑I'm happy to get that information for you.


I understand that but I'm asking you what you know and remember now?


MR BOANZA:  Well, your Honour, sorry - - -


THE WITNESS:  I'm happy - look, I'm happy to say there are - there are redundancies occurring from time to time and I would have to - would have to check to be precise.


MR CRAWSHAW:  But the bottom line is that 2016 was not a typical year in terms of redundancy for Woden Contractors?‑‑‑I suspect it's higher but I would - I would want to check the numbers.  We have in - we have of course as I've said, an average workforce of around the 75.  There are a whole range of reasons why people make that redundancy claim against us.  Hello?


Yes, I'm just - - -?‑‑‑Sorry.


I'm a bit slow these days, Mr Middleton?‑‑‑Join the club.


I've always been slow, I'm getting slower.  In terms of the 45 weeks redundancy paid in 2016, what was the cost of that?‑‑‑That's a very difficult question to answer.  But if you're referring to cash monetary cost, it would - there was a range of weekly rates paid to people for that. For instance, we lost a good young foreman who we'd trained from scratch and he was probably earning somewhere around a couple thousand dollars a week compared with some of our other plant operators who might have been closer to $1050 a week.  So there's quite a range there, but without actually doing the calculation it would be - the cash cost would be a bit over $50,000 but the real killer for us is the retraining cost which just can be huge.  That's not a cash cost, that's a cost that we - that we wear over time.

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


VICE PRESIDENT HATCHER:  Mr Middleton, just in relation to those 2016 examples, I'm trying to relate this to what you say in paragraph 11 of your statement.  That is I thought what you were saying is that that group if 2016 left to access higher wages at a different project, not just for the incentive of accessing the redundancy payment.  Is that right?‑‑‑Yes, that's a fair comment - - -


That is they would have left anyway?‑‑‑The - and look, that's the weakness in what I've said going to counsel's previous questions.  If I'd given previous years without the light rail, I didn't think of it at the time when I put the example in, but the - I'd have to check precisely.  The effect of the light rail came in around December and it accelerated during January and February, so some that we've lost to the light rail wouldn't be included in that but if you're looking - it wouldn't be difficult for me, as I say, within 24 hours to give you - to give you better precise figures on that.


Can you remember a specific person who left which you understood to be on the basis that he or she wanted to access the redundancy payment?‑‑‑I suspect - you often suspect them.  No one actually tells you that.  We lost a good young foreman and I think he was looking for that extra money.  Without getting too personal he had a family situation.  We offered to help him with money but he took a job offer with one of our local competitors who was indeed offering him a bit more money and I believe that he definitely went for that reason.  Over the years I've seen - you know when people are really after redundancy when they tell you they're leaving the industry and they're going to be a roof tiler, and then three months later you find they're back working with somebody else.  There really is a long, long history in our industry of people from time to time accessing that redundancy money for whatever personal reason that they need that extra money for whatever reason.  You know, it just goes back to the contention, I've got no problem at all with somebody leaving to get a better paid job or they're sick of working for us and they want to try something different, but we just shouldn't have to pay for the privilege of them leaving.


The specific example you gave before, do you remember what the amount of redundancy was in that case?‑‑‑It would have been - well, approximately $2000 I suppose by eight weeks, he'd been with us quite a long time.  So it'd be - it would have been over $16,000.  But as I say, the big cost for us - I mean we trained that young bloke from a labourer through to a plant operator, a final trim grader operator, he became a very good earthworks foreman.  We offered him more money to get him to stay, you know, there's a huge cost to us in just that specific example, let alone if we just lose a dozer operator.  I think there's a huge lack of understanding about the costs of training a plant operator.


Thank you.  Mr Crawshaw.

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


MR CRAWSHAW:  No further questions, your Honour.


VICE PRESIDENT HATCHER:  Does any other party wish to cross-examine this witness?  No.  Is there any re-examination?


MR BOANZA:  No, your Honour.


VICE PRESIDENT HATCHER:  Thank you for giving evidence, Mr Middleton.  You're excused and you're now free to leave?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [12.31 PM]


VICE PRESIDENT HATCHER:  Mr Schmitke, where are we up to?


MR SCHMITKE:  Your Honour, I've got a copy of the - this is the only copy I have regrettably of the notes to which Mr Solomon was seeking to refer.  I've marked matters in here which I wouldn't like to have generally circulated but otherwise this is the document and I'm happy to provide it to the Commission.


VICE PRESIDENT HATCHER:  Perhaps just hand it up and I'll see what it looks like.


MR SCHMITKE:  There's only a minor number of redactions.


VICE PRESIDENT HATCHER:  I think the appropriate course is this.  We should take an early luncheon adjournment.  This document's quite detailed so Mr Crawshaw you'll need to read it and seek instructions about it.  We'll have it copied after we adjourn.  If the parties just wait we'll have the copies distributed as soon as they're ready.  Mr Crawshaw, during the luncheon adjournment you can seek any instructions you need to seek about it and then we'll resume at 1.30 with Mr Solomon.


MR CRAWSHAW:  The only thing, your Honour, is it will be helpful to us if there's going to be any other oral evidence-in-chief if that be called now.


VICE PRESIDENT HATCHER:  Mr Schmitke, is this the extent of all the additional evidence-in-chief?

***        PETER WILLIAM MIDDLETON                                                                                         XXN MR CRAWSHAW


MR SCHMITKE:  Yes, that is.


VICE PRESIDENT HATCHER:  That is can we admit this as the evidence in response to Dr Ayers without you having to question the witness any further?




MR CRAWFORD:  Excuse me, your Honour.




MR CRAWFORD:  I've got another matter at two, can I please be excused for the afternoon?


VICE PRESIDENT HATCHER:  Yes, you may.  Mr Schmitke, is it appropriate that we mark this document as exhibit 3, constituting Mr Solomon's reply evidence to Dr Ayers' statement, or do you want to recall him to check with that?


MR SCHMITKE:  Yes, look if I could seek to call him that would be fine.  My preliminary view is that I don't have a problem with it being marked and the only thing I've noticed also the parties in Sydney where relevant may wish to get a copy of this as well.


VICE PRESIDENT HATCHER:  Right.  Is Mr Solomon still available in the Sydney court room?


MR SOLOMON:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Can you come forward to the witness box, Mr Solomon.


MR SCHMITKE:  Your Honour, if I might - sorry to interject, just note that the copy that Mr Solomon has doesn't include the redactions so I'd be seeking that he have a copy of this.





EXAMINATION-IN-CHIEF BY MR SCHMITKE                          [12.34 PM]


VICE PRESIDENT HATCHER:  Mr Solomon, we've been provided with a copy of your typed notes you've made in response to Dr Ayers' statement with a couple of matters crossed out.  We'll give you a copy of the crossed out version in a second.  But do you say that what's in that document constitutes a true and correct response to Dr Ayers' statement?‑‑‑In my belief, yes I do.


I'll mark the response of Mr Solomon to the witness statement of Dr Gerard Ayers exhibit 3.



We'll arrange to have that document copied, distributed in Melbourne and sent to the parties in Sydney.  We'll now adjourn for an early lunch.


MR EBERHARD:  Your Honour, can I just say as the next two days and this afternoon's proceedings don't effect anything from the Master Plumbers Group point of view, we'll be adjourning until Thursday.


VICE PRESIDENT HATCHER:  Yes.  Yes, you're excused Mr Eberhard.


MR EBERHARD:  Thank you.


VICE PRESIDENT HATCHER:  We'll now adjourn for lunch.  If the parties remain in the court room we'll give you the copies as soon as we can.

<THE WITNESS WITHDREW                                                          [12.35 PM]

LUNCHEON ADJOURNMENT                                                         [12.35 PM]

RESUMED                                                                                               [1.53 PM]


CROSS-EXAMINATION BY MR CRAWSHAW                              [1.53 PM]


VICE PRESIDENT HATCHER:  Mr Solomon, you remain on your earlier oath or affirmation.  Can I confirm that you have a copy of exhibit 3 there, your notes with some parts of it that were crossed out by Mr Schmitke?‑‑‑You can, I do.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


All right.  Mr Crawshaw.


MR CRAWSHAW:  Just for the record, can I state our objection to the whole of this statement on the basis of it being opinion evidence and that - - -


VICE PRESIDENT HATCHER:  Yes, that's noted.


MR CRAWSHAW:  - - - and it's covered by the same submissions we made earlier about Mr Solomon's evidence.  Mr Solomon, can I just ask you about what you've said about your background.  When you were employed by Jones Lang LaSalle, what was your title?‑‑‑I was a - it was a hybrid role.  I was a site manager and I was looking after safety.


What were you called?‑‑‑Predominantly the site manager with a hybrid role.


What you called?  Site - - -?‑‑‑I was site manager, in lieu of a safety representative not being replaced for some six months.


That was your title was it?  Site manager - - -?‑‑‑Correct.


- - - in lieu of a safety manager not being replaced for six months?‑‑‑Site manager.


Site manager.  What you're really saying is you're a site manager who had safety responsibilities.  Is that right?‑‑‑That's right but it was beyond my role for looking after one site.  I looked after safety for other sites that I didn't manage.


I see?‑‑‑In the capacity as a site manager.


You went to other sites and carried out a safety role, is that right?‑‑‑That's correct.


You weren't full time on a particular site?‑‑‑That's correct.


Where were you the site manager?‑‑‑Any number of sites that I was managing within the CBD in Sydney.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Sorry, so you had a - for four years, you were a site manager at various sites, is that right?‑‑‑Correct.


How many?‑‑‑Over what period?


Over four years?‑‑‑At any one time I could be looking after ‑ ‑ ‑


Over four years?‑‑‑In any one period I could be looking after a dozen sites.


A dozen sites?‑‑‑Or as low as one or two, depending on the size and the nature of the project.


What is Jones Lang LaSalle?  Property management company is it?‑‑‑The largest real estate company in the world.


It's not a - - -?‑‑‑We have a division with - who have a division within them who roll out fitouts.


It's not - - -?‑‑‑And it may - they have a construction division within them.


Were you in the - - -?‑‑‑And they may - - -


Proceed?‑‑‑And it may be determined by the size and the nature of the project, it could be half a dozen floors, it could be an entire building that gets gutted or re-built or demolished.  For example, they've got a 10 year Defence contract.  I wasn't on that project.  I was a multi-site manager with safety responsibilities beyond the sites I looked after.


Were you in the construction division of that company?‑‑‑Correct, correct.


You're in the construction division?‑‑‑Yes.


These 12 sites that you were managing at any one time were construction sites, is that right?‑‑‑Yes, yes.


Did each of those sites have its own site manager?‑‑‑No, they had a foreman.  They had a site - a allocated resource to site supervision.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


You were supervising the foremen of each of these sites, is that right?‑‑‑That's correct.


Just coming to this safety responsibility, did you say you were doing that for six months?‑‑‑For a period there was no safety manager at a national role, or a state role I should say, so I covered that for longer than that period as well.


For how long?‑‑‑For a period there was no one.


Sorry, I didn't catch that?‑‑‑And that was a roughly of six to nine months from memory.


Out of the four years, you carried out that role for six to nine months?‑‑‑No, I would have studied.  I carried that role for probably three of the four years and of nine months there was no direct report in safety, so two lines of reporting, one for safety and one for construction.


Where does the six to nine months come in?‑‑‑That's the period there was no one to report to for safety at a state level.


When was that?‑‑‑In the year of 2013, I think, I believe.


Towards the end of your four year employment?‑‑‑Correct.


Before that, you reported to a safety manager, is that right?‑‑‑Primarily, I answered to a construction manager and secondarily, I answered to a safety manager.


Okay, well let's go on from that.  When did you get this accreditation with JASANZ?‑‑‑That's an - last year, 2016.


Okay, and when did you become a fellow of the ISQEM?‑‑‑2015.


Did you do any study for those particular qualifications?‑‑‑I'd done study of that prior to getting those qualifications.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


No, I - - -?‑‑‑You cannot become certified with JASANZ unless you have passed the exams or got the qualifications.


Well that's  one - - -?‑‑‑And becoming a - - -


Yes, go on?‑‑‑And becoming a fellow of the association in the UK, that was judged on the merit of the submissions I'd made on behalf of our department.


No, just come back to my - - -?‑‑‑I think seven or nine qualifications in safety.


Yes, well just coming back to the original question, did you do any study for those particular qualifications, namely, the accreditation with JASANZ and the fellow of the ISQEM?‑‑‑The latter, no, because you don't need to.  The former, yes, so certified with JASANZ, yes.


What study did you do?‑‑‑I've done a broad range of study where they're all considered for that qualification.


Which - - -?‑‑‑Namely, being a lead auditor, which you do through a training body, SAI Global.


Sorry, a what auditor?‑‑‑A lead auditor.


A leak?




MR CRAWSHAW:  Lead, a lead auditor?‑‑‑L-e-a-d, yes.


What study did you do for that?‑‑‑Is a five day course, face to face.  We can do it by other learning means.


Any other study for that qualification?‑‑‑I've got two advanced diplomas, two diplomas, two cert fours and I'm a qualified tradesman.


Any other study for the JASANZ accreditation?‑‑‑That's all considered because they take your experience into account as well.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Okay, and did you say you did some exams?‑‑‑Yes.


What exams did you do?‑‑‑You have to study 1721, which the international guidelines for safety for accredited bodies, 19011's the - 19,011, ISO 19,011, which is the international standard for guidelines, auditing guidelines for management systems.


Was that at the end of a course was it?‑‑‑No.  I studied those because I got them on my own merit.  I'm a qualified lead auditor in three fields, safety, quality and environment.


No but when you did this exam that you did in 2011, was that at the end of a course?‑‑‑Yes, it was.


How long was that course?‑‑‑Five days.


Have you done any courses that go for longer than five days?‑‑‑Done an advanced diploma and - - -


For what?‑‑‑and a diploma.


In what?‑‑‑At tertiary level.  OHS and WHS.


How long were those courses?‑‑‑Well, I did them various learning methods.  One was blended, one was face to face and one was five days and one was, I can't remember the exact time, and one was via e-learning, so it was self‑paced.  One took 50 days.


Which, sorry, 50 days?‑‑‑Well, that's how long it took me.  I think you have 12 months to complete it.


What, you did 50 full days did you?‑‑‑No.  It just took me 50 days.


Well how much time did you - - -?‑‑‑As each day lapsed I added another day to the time it took me to do it.  I wouldn't have spent a full day on each.


In actual hours, how long did you spend?‑‑‑I didn't record that.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


I was trying to get to how many of these courses lasted longer than five days and this is the only one that you've nominated, is that right?‑‑‑Yes, that's right.


You can't tell us - you say it took 50 days from the beginning to the end, is that right?‑‑‑Yes.


This was - did you actually go anywhere for this course?‑‑‑No, that's not the intention.


It's self-taught?‑‑‑It's by correspondence.


By correspondence?‑‑‑Yes, via correspondence, yes.  Otherwise known as e-learning.


You can't tell us how long, in terms of hours, you spent on it?‑‑‑Not accurately, no.


It could be less than - well at five days, let's say that's 40 hours.  Was it more than 40 hours or less than 40 hours?‑‑‑It differed.  I was raising children, starting a family, sometimes weekends, sometimes wasn't.  If I had a ‑ where I had spare time to study, I would.


Yes, well  you can't tell us whether it was more or less than 40 hours?‑‑‑I've implied that it's less.  It wasn't full time.


I just want to ask you about the work health and safety legislation and you can take it as referring to, well the model Federal Act and all the state legislation and the question I want to ask is none of that legislation provides for allowances to be paid to workers does it?‑‑‑No.


By the way, when you talk about work health and safety legislation, do we take that as including the regulations made under the work health and safety legislation?‑‑‑Yes.


I take it from that answer that none of the regulations deal with allowances paid to workers?‑‑‑Correct.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Indeed, none of the codes of practice that you've given evidence about provide for allowances to be paid to workers?‑‑‑That's right.


But you will accept, will you not, that most of the award clauses that you've set out in annexure A deal with allowances to be paid to workers or special rates to be paid to workers?‑‑‑That's correct.


While we're dealing with the regulations and the code of practice, do you accept that the regulations made under various work health and safety legislation, including the model Federal law and the various state laws, contain prescriptive measures relating to the building and construction industry?‑‑‑The WHS legislation's primarily a risk assessed approach, making in some cases more prescriptive recommendations than most.


Well I was asking you about the regulations.  Do you accept that there's prescriptive measures relating to the building and construction industry in the work health and safety regulations made under the model Federal law and various state laws?‑‑‑No, I would say that it's the risk assessed approach.


DEPUTY PRESIDENT GOSTENCNIK:  I can tell you from my experience, having drafted the Victorian regulations, there are such in Victoria.


MR CRAWSHAW:  I think you can take that as a question, Mr ‑ ‑ ‑?‑‑‑I'm not familiar with the Victorian law at the moment.  I studied it some time ago, I haven't studied it since 2011.  The area in which I operate is the (indistinct) legislation.  When I refer to some areas being prescriptive, maybe such as, an example, confined space, whereas most other ways to adopt safety and how you go about it would be a risk assessed approach, where it is not prescriptive.


Well, you're familiar then with the model Federal regulations aren't you?‑‑‑I'm familiar with the WHS regulations that were ratified in 2011, 1 January, and came in force or effective 1 January 2012.


Do you accept that chapter six of those regulations contains a special, or contains particular provisions, relating to construction?‑‑‑I can't recall off the top of my head.  I take your word for it.


You can't recall.  Do you know anything more about these model Federal regulations than you do about the Victorian regulations that you just gave an answer to the Deputy President about?‑‑‑Yes.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


You work, don't you, in the construction industry?  Your present employment is in relation to the construction industry?‑‑‑Yes.


You can't tell me whether the model Federal regulations have a chapter on construction?‑‑‑I know they do.  I'm just not sure what clause it is, whether it's six or not.


Okay.  You accept that there's special provisions relating to construction in those regulations?‑‑‑Yes.


Are you aware that they have particular provisions about high risk construction work and the safe work method statements that are required for that work?‑‑‑Yes.


Are you aware that those regulations have particular provisions relating to excavation work?‑‑‑Yes.


And additional controls relating to trenches?‑‑‑Yes.


Are you aware that those provisions have additional duties relating to principle contractors as distinct from other contractors?‑‑‑Yes, I am.


Also that those provisions have particular provisions relating to induction training?‑‑‑Yes.


Even descending to what requirements - or requirements in relation to cars?‑‑‑You lost me there.  In relation to cars?


Cards, c-a-r-d-s, relating to induction training?‑‑‑Cards.  Yes.


These are all prescriptive measures aren't they?‑‑‑I would agree with you with the induction card's prescriptive but the other, some of the other examples are more so guidance.  You can achieve the same result with other approaches.


The regulations also contain particular provisions relating to demolition work?‑‑‑Yes.  There's 18 categories of high risk.


Thanks for that, and particular provisions relating to asbestos work, is that right?‑‑‑Yes.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


In particular, in relation to asbestos work, demolition, refurbishment and removal of asbestos, particular provisions, correct?‑‑‑Correct, yes.


Those provisions relating to demolition that I've just mentioned to you, and general demolition and demolition, refurbishment and removal relating to asbestos, go to the detail of notices, licences and registration?‑‑‑That's correct.


Prescriptive measures again?


VICE PRESIDENT HATCHER:  Sorry, did the witness answer that?‑‑‑Yes.


MR CRAWSHAW:  By the way, the model codes of practice that you've referred to, or you've referred to codes of practice but I presume that you're more familiar with the model codes of practice are you?‑‑‑That's correct.


They're prescriptive as well, aren't they?‑‑‑Yes, to some degree.


I think there were two reports that came out that led to the model legislation in 2011 weren't there?‑‑‑I'm not 100 percent sure.  I think - - -


Have you ever looked at those reports?‑‑‑Not in recent times, no.


Well, at all?‑‑‑I've looked at one and I can't remember the name of it, the Reiby Report I think it was.


The what report?‑‑‑I think it's Reiby.


Reidy?‑‑‑Reiby, and the other I'm not familiar with.


If I suggested to you that the reports that led to the model, 2011 model Federal legislation did not say that there should be no prescription, you couldn't respond to that?‑‑‑No, because they weren't relevant to any of my studies.


If I could just come to your exhibit 3, the notes you prepared for the purpose of responding to Dr Ayers.  You see in that statement that your representative has had redacted a number of entries?‑‑‑I do.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Do you have any problem with us knowing what those entries were?


MR SCHMITKE:  Your Honour, if I could just interject at this point.  The material was - the document that's been provided has been provided on the basis that it was going to have marks made by myself in relation to the content of that document that wasn't necessarily relevant to these proceedings and to ask the witness about what those notes were is something to which we would object.  They are notes that were personal notes made by Mr Solomon to guide him in his responses to questions about Dr Ayers' statement and that's the basis on which the document has been handed up and the basis on which it's been marked as an exhibit.


VICE PRESIDENT HATCHER:  Well, the witness is being asked whether he had any objection to identifying what they were.  Presumably if he does, he'll say so.




VICE PRESIDENT HATCHER:  Mr Solomon, do you have any objection to disclosing what's in the redacted portions of exhibit 3?  That's a yes or no answer, I think?‑‑‑Yes.


MR CRAWSHAW:  Well, can I just put this suggestion to you, that apart from the last redaction at the end of paragraph 26, that the redactions correspond with a particular paragraph in Mr Ayers' statement.  Is that right?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Sorry, Mr Crawshaw - just hold on.  Mr Crawshaw, the document was handed up on the basis that it was redacted.  I'm not sure what the point of redactions is if you're going to cross-examine the information back in.


MR CRAWSHAW:  Well, if Mr Solomon had been in the witness box here and had been reading from notes, under normal procedures, I would have been entitled to ask him for those notes.


VICE PRESIDENT HATCHER:  That's true but I thought we took a course which avoided that happening and provided it as if it's a further statement in reply.


MR CRAWSHAW:  All right.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


VICE PRESIDENT HATCHER:  I'm not sure where we're going with this.


MR CRAWSHAW:  Well, I just want to put a proposition about the redactions.  Can I just put one proposition?




MR CRAWSHAW:  In those parts of the statement that have been redacted did you express your agreement with paragraphs in Mr Ayers' statement - - -


MR SCHMITKE:  Your Honour, again, if I can interject.  The question that's being put goes to the very nature of what's in the redacted parts of the document.


MR CRAWSHAW:  All right.


MR SCHMITKE:  Even the use of the phrase redacted is perhaps misleading.  It is a document that was handed up on - - -


MR CRAWSHAW:  I withdraw the question.  In relation to paragraph seven of Mr Ayers' statement, do you agree with that?‑‑‑I don't disagree with it.


In relation to paragraph 15 of Mr Ayers' statement, do you agree with that?‑‑‑I do.


In relation to paragraph 19 of Mr Ayers' statement, do you agree with that?‑‑‑No.


Can you tell me why you disagree with paragraph 19?‑‑‑Because clean up times, sorry just reading from the wrong - sorry.


You've got Mr Ayers' statement in front of you?‑‑‑Yes, I have.  I've just put my glasses on.  The washing time in clause 33.1, it's already - whether this statement - what my comment would be to that was it's already covered in the WHS legislation if someone needs whatever time to do it, whether it's five minutes, two minutes or 10 minutes.


But it's true isn't it that the five minute washing time in clause 33.1(c) of the award is no more than an acknowledgement of a person's right to clean up before meals and/or going home after their work shift has finished?‑‑‑Yes, it is.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


It's true, is it not, that the Work Health and Safety Act does not specify or allow any set or agreed time, it only provides for the facilities to eventually be utilised to wash up?‑‑‑That's - - -


The allowable agreeable time to do that is open to interpretation?‑‑‑That's true.


You do agree with paragraph 19?‑‑‑I think it's a duplication.  I don't think it's necessary.


No, but you agree with it. You just told me you agreed with the two sentences in there?‑‑‑Yes.


Do you agree with paragraph 22 of Mr Ayers' statement?‑‑‑Not entirely, no, because this clause is somewhat dated.


Which part?‑‑‑Elements of - well the - - -


Sorry, which part?  Just let me ask you this, which part of paragraph 22 do you disagree with?  Part or parts, or sentences?‑‑‑Spectacles and clothes.


This is the third sentence?‑‑‑First.


Clause 20.3(a) of the award refers to, among other things, clothes, hearing aids, spectacles and tools?‑‑‑That's correct.


Is that correct?  You disagree with that?‑‑‑Well, elements of those are PPE these days.


Sorry, does clause 23(a) refer to them?  I don't want it to be a guessing competition,  Mr Solomon?‑‑‑Aren't you ‑ weren't you referring to clause 22 in Dr Ayers' statement?


Yes, paragraph 22?‑‑‑Yes.


I'm asking you whether you agree with Mr Ayers' statement.  You told me you don't and I'm asking you - - -?‑‑‑Not entirely, no, because - - -

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


- - - which parts?‑‑‑because elements of those - - -


Sorry?‑‑‑Elements of those and now - elements of those now in the industry already deemed to be PPE whereas this statement is making out or setting out that these are in the award.  Well, they may be in the award but elements of these are PPE in the industry.  Clothes and spectacles, to a lesser degree, are part of everyday life as PPE.


Can you just tell me which sentence in clause 22 you would disagree with?‑‑‑Of Dr Ayers' statement or the award?


Dr Ayers' statement, clause 22.  You said you disagreed with it?‑‑‑First sentence, yes.


You disagree that clause 20.3(a) of the award refers to, among other things, clothes, hearing aids, spectacles and tools?‑‑‑Well, the second sentence suggests that he doesn't believe in it and I say they are.


No, forget about the second sentence.  You said you disagreed with the first sentence?‑‑‑Well, now I'm saying the second.


You don't disagree with the first sentence?‑‑‑No.


Is that right?‑‑‑They do refer to them.  The second sentence is saying they're not.


You agree with the first sentence, have we got that far?‑‑‑We have.


We're up the second sentence now?‑‑‑Correct.


You disagree with the proposition that these items are not and never have been deemed personal protective equipment under either the award or, indeed, the work health and safety framework, do you?‑‑‑What I'm suggesting is two of those - - -


No, please, Mr Solomon, just answer the question.  Do you disagree with that sentence?‑‑‑Yes.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


You say that those items are deemed personal protective equipment under the award do you?‑‑‑As I stated earlier, some of them, two of them, not all of them.


Whereabouts in the award is that?‑‑‑I don't have a copy of the award on me.


You didn't bring the award with you?‑‑‑No.  I'm simply saying they refer to, in the industry, under WHS legislation, as PPE.  They're now recognised as PPE whereas years gone, they weren't.


Where in the work health and safety legislation does it say those matters are deemed to be personal protective equipment?‑‑‑I can't recall off the top of my head.  They make reference to safety glasses and protective clothing.  Hence the heading PPE, personal protective equipment.  They are simply items that come under that heading.  In years gone by, they weren't.


Sorry, what heading?‑‑‑Of PPE.


Where's this heading?‑‑‑You'll find it in the legislation.


In the legislation.  Which legislation?‑‑‑The regulation.


The regulation.  Do we get any help, I haven't looked, but do we get any help from your annexure A on this?‑‑‑No.


You sure about that?  I'm just, to be fair to you, looking at your third page of annexure A where you deal with clause 20.3 and in the work health and safety regulations, you do mention - you see item number seven in annexure A?‑‑‑Yes, I do.


You do mention under the regulations Chapter 3 Part 3.2 Division 5, personal protective equipment?‑‑‑Yes.


Do you think that's what you might have been referring to when you talked about the heading?‑‑‑Yes.


Do you say that provision mentions these clothes, hearing aids, spectacles and tools as personal protective equipment?  It's not a trick question.  I don't know the answer to it.  I'm just trying to - - -?‑‑‑And I can't recall if it specifically identifies the elements of personal protective equipment.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Yes, all right?‑‑‑What I am saying is PPE is referred to in the legislation and within the industry, PPE is now widely regarded but wider regarded than it used to be.


Anyway, just continuing on with the sentence, the paragraph 22, do you disagree with the next sentence that hearing aids are not hearing protectors, spectacles are not safety glasses?‑‑‑The first part of that is - I agree with, hearing aids are not.  Spectacles and safety glasses, in New South Wales it's an agreement between the employer and the worker as I've had this conversation with our state regulator numerous times.  So if the employer and the workers agree for the employer to pay for it, it will be deemed to be PPE.  So it's an individual case.


You're suggesting spectacles are safety glasses are you?‑‑‑Well, what I'm suggesting is if someone comes to work with metal frames and glass lenses, that's not very safe for them whereas if the employer agrees to pay to have some plastic lenses that are shatter proof and plastic frames with side protection on them, that would then - the same item, spectacles, in one form turns into another form.  One form is not PPE, the other is.  One's actually a hindrance to being working effectively and one's a help and that determination is to be made in agreement with the employer and the workers.


All right.  Let's go to the next sentence.  Do you agree that the award has never defined or even allowed clothes, hearing aids and spectacles to be used/applied as personal protective equipment?  Do you agree with that?‑‑‑I'm just reading it.  Yes, I agree.


Do you agree with the proposition the clause does not overlap nor does it conflict with the work health and safety provision?‑‑‑Not entirely.  The last 15 minutes we've been discussing for the same reasons.


But see - - -?‑‑‑Certain elements that do overlap.


- - - the award provision, clause 20.3(a) is dealing with compensation for damage to clothes, spectacles, hearing aids or tools not with damage to personal protective equipment.  You agree with that don't you?‑‑‑I agree with it to the extent what PPE covers and other people interpret what PPE covers differently to others.  Example, spectacle being the classic example, which if spectacles are deemed to be PPE and they're damaged, well they need to be replaced.  I mean it's law that the PPE be provided by the employer so if clothes then form part of PPE, if it's deemed to be long sleeves to keep out of the sun and so forth, well they have to replace them when they're worn out.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


I gather from your response to Mr Ayers' statement that you see a clear distinction between industrial matters on the one hand and work health and safety matters on the other hand, is that right?‑‑‑More often than not, yes.


What do you mean more often than not?‑‑‑Yes.


I'm just trying to see whether you're - there are occasions where they're one and the same?  In other words, a matter can be an industrial matter as well as a work health and safety matter?‑‑‑Yes.


A good example of that are provisions relating to hours of work.  Is that right?‑‑‑Yes, yes.


In particular, do you agree that a provision relating to reasonable overtime can be an industrial matter as well as a work health and safety matter?‑‑‑Yes.


But you've included in your annexure A, at item 52, it's on the last page, the award clause relating to requirement to work reasonable overtime.  Is that right?‑‑‑Yes.


Are you suggesting that clause should be deleted?‑‑‑What I'm suggesting is it conflicts with the primary duty of care.


Therefore should be deleted, shouldn't it, under your regime?‑‑‑Yes.


MR SCHMITKE:  Your Honour, if I could just note the application that's been moved to vet various clauses is one from Master Builders Australia.  Mr Solomon's evidence goes to matters involving conflicts.  Mr Solomon hasn't been asked to provide necessarily a view in relation to whether or not a particular clause should exist or not.  His evidence goes to whether or not there's a conflict between the regulations and the award provisions.


VICE PRESIDENT HATCHER:  This is opinion evidence so he's entitled to be cross-examined about his opinion, so I think he answered the question, Mr Crawshaw.


MR CRAWSHAW:  He did, yes.



***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


MR CRAWSHAW:  Are you aware - - -


DEPUTY PRESIDENT GOSTENCNIK:  Sorry, Mr Crawshaw, sorry, just on the last answer, Mr Solomon, how do you say that the overtime provisions conflict with an employer's duty of care under the work health and safety regime?‑‑‑An employer has a duty of care to make sure that someone remains health and safe, safe and healthy.  If the overtime is such that it needs to be affecting their ability to work, you need to remove it.  You need to have those as two separate rule books, you might say, your Honour, in my belief.  Otherwise - - -


VICE PRESIDENT HATCHER:  But you accept that reasonable overtime has a dimension other than simply health and safety?‑‑‑Could you repeat the question, sorry.


Yes.  Do you accept that the question of overtime has dimensions other than simply health and safety, for example how many hours the worker wishes to work having regard to their family responsibilities or some other personal commitment?‑‑‑While I appreciate it may have other concerns, my primary concern is for the worker's safety.  So a lot may impinge on an individual's time at home with the family and so forth.  It's more my concern and opinion that they need to be comfortable and fit and able to do any overtime.  A lot of people get worked excessively.


DEPUTY PRESIDENT GOSTENCNIK:  But Mr Solomon, if an employer required an employee to work in circumstances where the requirement was a breach of their primary duty, wouldn't it follow that that would be an unreasonable request to work overtime?‑‑‑If there's a breach of their duty, yes.


My question is then how would the two conflict?‑‑‑Because if it isn't a breach of their duty and they are able to undertake overtime, that's simply working.


Therefore not a breach?‑‑‑That's right.


Therefore no conflict?‑‑‑That's right.


Yes, thank you.


MR CRAWSHAW:  You accept that wages are industrial matters as distinct from work health and safety matters?‑‑‑Yes.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Do you accept that disability allowances are industrial matters as distinct from work health and safety matters?‑‑‑Yes.


All of that - - -?‑‑‑Although that's - - -


I'm sorry?  Someone said something?‑‑‑That's fine.


DEPUTY PRESIDENT HAMILTON:  The witness said something and then stopped.


MR CRAWSHAW:  Okay.  I thought - - -




MR CRAWSHAW:  - - - your Honour had said something.




MR CRAWSHAW:  Sorry, what was that, Mr Solomon?‑‑‑I stopped.


You stopped.  You were going to say something.  See what I want to suggest to you is that all the allowances that you put in your table A are disability allowances?‑‑‑That could be adopted as a wide view of it.  It's a determination of who's disabled.


Well they're either - - -?‑‑‑I would have thought that's more an - - -


Okay, I'll withdraw that question?‑‑‑I would have that was more of an IR matter that determined.




MR CRAWSHAW:  I'll withdraw that question and - - -

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


VICE PRESIDENT HATCHER:  Just hold on.  Mr Solomon, did you want to add to your answer because you're talking over the top of each other?‑‑‑Yes, I wouldn't mind saying something.


Yes, what do you want to say?‑‑‑I would have thought, in the first instance, the determination, whether someone was disabled or not, would be an IR factor.  After that determination would then - you have to think about whether it's a WHS issue and in most cases it would be definitely a consideration.


MR CRAWSHAW:  But can we come back to the question I asked  you, in relation to the allowances that you set out in your table, particularly from clause 20 and clause 21, do you accept that they're disability allowances?‑‑‑Yes.


They're not work health and safety allowances at all are they?‑‑‑Primarily not.


Well can you tell me any of them that are work health and safety allowances?‑‑‑The work health and safety allowance is once the damage is done.


Well what do you mean by a work health and safety allowance?‑‑‑An allowance for someone working in danger which may be exposed to such elements as a swinging scaffold that could fail or explosive power tools or toxic substances.


But none of these allowances are given as danger money are they?‑‑‑No, but nor are they claimed either.


No, and the same applies to the special rates in clause 22?‑‑‑Yes, that's right.


None of them are given as danger money or in return for being at risk to work health and safety endangerment?‑‑‑That's exactly my point.  They're in the award, they're there to be claimed.  They're not claimed, they're not regulated against and in my opinion they'd be a better fit in the WHS regulation, or OHS as a - - -


VICE PRESIDENT HATCHER:  What do you mean they're not named?‑‑‑Well, no, in my experience, your Honour, there's no one claiming these specific allowances.  They're actually - - -


You mean no one pays them?‑‑‑Well, they're not claiming them to be paid.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Just hold on.  Mr Solomon, just listen to the question then answer it.  The allowances are payable by the employer, I don't think they're payable on a claim being made.  Are you saying that nobody pays these allowances in your experience?‑‑‑To that detail, yes.


MR CRAWSHAW:  To what detail?‑‑‑To the detail we're speaking about, clause 20, 21 and 22.


Well you just wouldn't know would you?‑‑‑Not specifically, no, but I've not been exposed to it in my time in the industry.


It is not your area monitoring whether allowances are paid or not, is it?‑‑‑No.


I'm just somewhat intrigued by your response to paragraph 12.  You refer therein, in the fourth line, to ALARP, the ALARP principle?‑‑‑Yes.


Someone instructing me looked up Wikipedia and it suggested that that means as low as reasonably practicable?‑‑‑That's the same reference I'm making, correct.


So the ALARP principle is the as low as reasonably practicable principle, is it?‑‑‑That's correct.  Nowadays it's more commonly referred to "so far as low as reasonably practicable".


So far as low?  But the duty under the work health and safety legislation is not to take measures as low as reasonably practicable, is it?‑‑‑No, it's to keep them as low as possible.


To keep them low?  To keep the preventive measures low?‑‑‑No, the risk of an incident or accident happening.


So to keep the risk as low as reasonably practicable?  Is that what we're talking about?‑‑‑Yes.


How does that fit in with as far as reasonably practicable because that's talking about measures to prevent risk, isn't it?‑‑‑Two in the one, they're two in the one.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


No, one is referring to the risk and one's referring to the measures to avert the risk, isn't it?‑‑‑As low as reasonably practicable or so far as low as reasonably practicable is still talking about keeping the risk factors as low as possible.  They're two in the one.


Are you saying that principle was found in the case of Edwards v National Coal Board in 1949?‑‑‑That's correct.


You have read that case, have you?‑‑‑No, I've just read a paragraph of that, how they came about, and I can't recite it but there was a judgment made on why those principles were adopted.


Edwards v National Coal Board stood for the proposition that the gravity of the risk and the gravity of the harm had to be balanced with the expense in preventing the risk and the harm, didn't it?‑‑‑That's true.  It's not dissimilar to the approach we take in harmony's legislation now.


That has been around since 1949?‑‑‑Correct, or so I'm led to believe, yes.


So when you say that the award clauses came in in the 70s, that was after this principle that's similar to that in the current legislation came into existence in 1949?‑‑‑That's right, but we didn't adopt that same principle until 2012 in harmony's legislation.


Until when?‑‑‑When harmonised legislation was introduced.


You said it was confirmed by the Australian High Court?‑‑‑I did.


When was that?‑‑‑I'm not sure of the actual date.


What was the case?‑‑‑I'm not sure.  I'm referring to an excerpt from another document.


It wasn't Slivak v Lurgi, was it?‑‑‑My answer remains the same; I'm unsure.


Are you familiar with Slivak v Lurgi?‑‑‑Not really.  Edwards v National Coal Board was applied on numerous occasions under the New South Wales Occupational Health and Safety legislation, wasn't it?‑‑‑I'm sorry, I can't hear you.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Sorry, I am moving away from the microphone.  I am suggesting to you that Edwards v National Coal Board was applied on numerous occasions under the New South Wales Occupational Health and Safety legislation that came into existence in 1983?‑‑‑Okay.


You don't know?‑‑‑No.


That's because your information about Edwards v National Coal Board came from a paragraph you read somewhere?‑‑‑An excerpt, that's correct.


Sorry, where was that?‑‑‑An excerpt from a publication I was reading about the oil and gas sector.


You say there's evidence of a lack of recorded prosecutions under the Fair Work Act for award safety breaches.  Do you see that in paragraph 13?‑‑‑Correct.


You say at the end of paragraph 14:


The fact that breaches of the work health and safety award allowances are not enforced makes them all but redundant.




That latter comment was consistent with what you said earlier about people don't pay them?‑‑‑And more so they're not claimed.


They're not claimed, yes?‑‑‑That is correct.  That is consistent with what I mentioned earlier.


You have already told us that knowledge of those matters is not the area that you work in?‑‑‑The history of it.


Sorry?‑‑‑The history of it.


No, the question of whether these award provisions, whether they be allowances or other - - -?‑‑‑Yes, that's correct.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


It is not an area you work in, and the fact that they are not prosecuted or enforced may be consistent with those award clauses being obeyed.  Do you accept that proposition?‑‑‑Sorry, I couldn't hear the last part of your sentence.


Sorry, I think I moved away from the microphone again.  The fact that these award clauses are not the subject of prosecutions or that they are not enforced may be consistent with the fact that they are being obeyed?‑‑‑It may be, or it may be the case that they're more - that people's behaviour are more aligned with the WHS legislation.  I can't weight that up; I don't have any statistics.


You also say in paragraph 14 that the payment of these allowances - you have got it in front of you:  in response to clause 14, the award contains a range of allowances that are expected to be paid to employees when engaged in work that, in your opinion, exposes work to a higher level of risk which does not make them safer in the workplace.  Do you see that?‑‑‑Yes.


Are you suggesting the allowances and the special rates that are in annexure A - I will withdraw that and start again.  Are you suggesting that the work that is the subject of the allowances and special rates in Annexure A should not occur at all because it's a health and safety risk?‑‑‑Not at all.  My interpretation, the intent of my comment is the fact that they get paid an allowance or are eligible for an allowance to get work in a high risk activity doesn't actually make them safer, and my second reference is whereas under WHS legislation, if they do work in accordance with that, you're likely to be safer.  I'm not saying they are not entitled to be paid, it just doesn't make them any safer.


I understand.  So the work should continue but the payment, the allowance, doesn't make it safer?‑‑‑Yes, that's correct.


That applies equally to the first aid allowance, I take it, that you refer to in paragraph 26?‑‑‑I'm just reading it.  Yes, that's correct.


By the way, just to finish on a rather minor point, in paragraph 16, the second last sentence, you say:


Reference to laser safety officer clause 21.5, another example of the award being out of touch, a role, to my knowledge, that does not exist.


Have you made any enquiries as to whether that role exists?‑‑‑I have.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Where did you make those enquiries?‑‑‑I used the internet and I've spoken to numerous businesses and been exposed in the industry all my life, some 29 years.


Did you make any enquiries outside New South Wales?‑‑‑No.


If is suggested to you that that role exists in Victoria, you are not able to deal with that proposition?‑‑‑That's correct.  I'd be surprised, but, no, I'm not.


Thank you?‑‑‑I sit on numerous national committees and I've never heard it referenced once.  I'm not saying that it doesn't exist, but never, in 29 years, I've not heard of the defined role of a laser safety officer.


Twenty-nine years?  Where does the 29 years come from?‑‑‑Well, I'm 45 this year and I've been working in the industry since I was 16.


Thank you.


VICE PRESIDENT HATCHER:  Does any other party wish to cross-examine this witness?  No?  Mr Solomon, can I just ask you one question.  Can I ask you to turn to your annexure A, item 4?‑‑‑Yes.


There you refer to clause 20.1(b) of the award.  I know you don't have it there, so I'll just try to summarise what I understand to be its effect.  It gives a list of tools and PPE for a number of different occupations.  As I understand it, it says, one, the tool allowance doesn't cover those tools and equipment and, two, if the employee provides them, the employer has to reimburse the cost.  Is that your understanding of the clause?‑‑‑And/or replace them.


Alternatively, the employer can provide them?‑‑‑Yes, that's right.  That's more often the case in the industry.


How do you say that is inconsistent with WHS legislation?‑‑‑It allows the employer to reimburse the employee for providing their own PPE.


Yes?  Is there some provision which prohibits that practice?‑‑‑Which is in contrast to the legislation where, if it's deemed to be PPE, it's the responsibility for the employer to provide that.

***        DAVID SOLOMON                                                                                                            XXN MR CRAWSHAW


Is there something in the legislation which prohibits the method of the employee providing the equipment and the employer covering the cost?‑‑‑No, it doesn't prohibit it, what it does, it just adds two sets of values and two sets of rules and it's unnecessarily complicated.  If it's deemed to be PPE and the employer provides it, well then, they replace it.  If it's up the employee to provide the PPE and it wears out or breaks or gets lost, well, there's an element of unnecessary complication.


Are you aware of any case where an employer might prefer a situation, that is, for example, a short term engagement, the employee provides the equipment and the employer reimburses the cost?‑‑‑Sorry, can you re-ask the question?  Sorry, I didn't understand the question.


As a practical proposition, are you aware of any case out in the field where the employer might prefer the situation that the employee provides one of those types of tools or PPE and the employer - - -?‑‑‑Yes, for a smaller - - -


Just let me finish.  Mr Solomon, stop interrupting and let me finish the question.  Where the employee provides the tools or the equipment and the employer reimburses the cost, that is, can you envisage any situation where the employer might prefer that situation?‑‑‑Maybe for a smaller or medium enterprise, perhaps.


Thank you.


DEPUTY PRESIDENT HAMILTON:  I have got one question, if I could.  I have listened closely to what you have said.  Are you saying essentially this, that the award clauses you refer to don't add to safety, therefore they should be reviewed having regard to that lack of a role in safety to see if there's a continuing need for them?  Is that the heart of what you are saying?‑‑‑Yes, it is, your Honour.


VICE PRESIDENT HATCHER:  Any re-examination, Mr Schmitke?


MR SCHMITKE:  Yes, your Honour.

RE-EXAMINATION BY MR SCHMITKE                                         [3.01 PM]


MR SCHMITKE:  Mr Solomon, if I could just clarify a couple of matters that you have just been asked some questions about.  If I can just get this completely clear:  you are an employee of the Master Builders Association of New South Wales; is that correct?‑‑‑Yes, it is.


You are not involved in a national role per se; is that right?‑‑‑No.

***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


Your main job is to provide advice and information in relation to New South Wales laws and regulations?‑‑‑That's right, and safety services to our members.


You were also asked about your background and qualifications.  You gave an answer before indicating that you have been in the sector for some 29 years.  Can you just for clarity explain how long you have been in the sector and what roles you have undertaken in that period of time, as quickly as you can?‑‑‑I've had various roles, starting out as an apprentice, working my way through to mid to senior management and I've always been aligned with safety and in the latter part of my career, I use my practical experience to study and get into what you'd call a pure safety role.


During the time that you were employed at Jones Lang LaSalle, you gave answers to the effect that you were a site manager during that period of time and you looked after various sites.  Just so I can be clear, you had supervisors or people controlling those sites that reported to you; is that your answer?‑‑‑That's correct.


You also undertook with the specific responsibilities of safety?‑‑‑That's correct.


What exactly did that role involve?‑‑‑Site inspections, audits and the tabulation of safety data and formulating a state report to then become part of a national report.


Am I right to say that those duties are different to the normal obligations that apply in the workplace to all persons regarding ensuring a safe workplace?‑‑‑Different in as much as it is unusual to have a hybrid role, correct.


Everybody in a workplace has responsibilities to ensure sites are safe - that is what the legislation requires - so that would include people like supervisors, employees, foremen, site managers, et cetera; is that correct?‑‑‑To the workplace, themselves and others, correct.


You were also asked some questions about your qualifications in relation to the International Society of Quality and Environmental Management Association and you also made reference to work overseas.  My question is what work do you undertaken now involving international matters regarding safety?‑‑‑I represent Australia on a national committee, or represent the Master Builders nationally on a national committee for the development of a new international safety standard and that committee has nominated me some half a dozen times or more to represent Australia internationally in the development of a new standard for safety management systems.

***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


Mr Solomon, the qualifications, can you just list those again so we are completely clear here?‑‑‑I have got a Cert II - I'm a qualified tradesman, X amount of years as a site supervisor and foreman; I have two Cert IVs, one in training and assessment, one in WHS, or OHS, sorry; I have a Diploma in OHS; I have a Diploma in WHS; I have an Advanced Diploma in WHS and Advanced Diploma in OHS.  I am a certified lead auditor for safety, quality and environment.


Mr Solomon, you were asked some questions with respect to the prescriptive nature of some elements of work health safety regulations that apply in the building and construction sector and you were asked a question about trenches and other types of high risk work.  Mr Solomon, you don't have a copy of the award in front of you, but if I might just read you a section.  Mr Solomon, I am going to read you clause 33.1(e)(ii) and that deals with hours of work relating to underground.  I would like to read to you subclause (i) which defines "underground".  That clause is as follows:


"Underground" means in any trench, shaft or drive or tunnel more than 6.1 metres (20 feet) below the surface of the ground or any drive or tunnel over 4.6 metres (15 feet) in length where the drive or tunnel is timbered, irrespective of the depth, or any live sewer more than 2.4 metres (8 feet) below the surface of the ground.


Nothing in this clause will entitle a person working in a trench by pot and shot method or otherwise at a depth less than 6.1 metres (20 feet) below the surface of the ground to be paid as a miner.


Mr Solomon, in respect of your understanding of the regulations in the model work health and health laws that apply to the construction industry, do they contain that level of detail and depth and prescription?‑‑‑No, they mention trenches deeper than 1.5 metres.


That definition I have just read to you, from what you can recall, is it consistent with what the regulations provide?‑‑‑It's not as straightforward as that, Mr Schmitke.  That can be a cavernous space under the ground almost what you are reciting at 33.1.


Mr Solomon, my point to you or my question to you is, I have just read to you an award clause which prescribes and defines underground work.  Without having the benefit of that clause but with the benefit of your knowledge of OHS regulations applicable to the construction sector, are you aware whether or not that definition is consistent with what might be determined or set out in the regulations that are otherwise applicable?‑‑‑It would be under the definition of "underground work".

***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


It would be inconsistent?  Is that your answer?‑‑‑It would be consistent with the WHS regulation.


Thank you?‑‑‑Under the definition of "underground work".


Can I also ask you about confined spaces.  Again I would like to read to you a clause.  This is from clause 22.2(d)(ii) under the heading "Confined Space" and there is a definition here.  I will read it out.  It says:


"Confined space" means a place the dimensions or nature of which necessitate working in a crouched position without sufficient ventilation.


MR CRAWSHAW:  I've just been asking around - I may have a short term memory loss, but I don't remember asking about confined spaces.  In any event - - -


VICE PRESIDENT HATCHER:  How does this arise in re-examination, Mr Schmitke?


MR SCHMITKE:  It was in relation to questions that were put about inconsistencies between what the award provides as per the table in Mr Solomon's annexure to his statement and the award provisions.  Mr Solomon was asked about whether or not there were consistencies or inconsistencies between those and I am asking a question directly relevant to that.


COMMISSIONER GREGORY:  He was asked about particular inconsistencies, he wasn't asked a generalised question, was he?


MR SCHMITKE:  I recall, your Honour, that questions were put about the entire table.


VICE PRESIDENT HATCHER:  So is this an example from the table?





***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


MR SCHMITKE:  It would be - - -






DEPUTY PRESIDENT HAMILTON:  Underground allowance - is that the one?


MR SCHMITKE:  There is underground allowance, there's confined space.


VICE PRESIDENT HATCHER:  Underground allowance is the one you've already asked about, isn't it?




VICE PRESIDENT HATCHER:  So which one is it?  Number 19, is it?




VICE PRESIDENT HATCHER:  The table sets out the inconsistency alleged, doesn't it?


MR SCHMITKE:  Well, it does in a general term.  I was just seeking to ask Mr Solomon about whether or not - well, exactly what conflicts there might have been, and this is the best example of the conflicts that exist.


VICE PRESIDENT HATCHER:  Mr Solomon, in relation to confined spaces, 22.2(d), do you identify any inconsistency there with the legislation?  This is item 19 in your table?‑‑‑There's an inconsistency because there are new - I suppose the inconsistency is there are now more dated definitions, more updated definitions of confined space, or conflicting definitions of confined space, and that is in the code of practice, code of practice - - -

***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


So the award and a code of practice define confined space in two different ways, do they?‑‑‑You've got three actually:  you've got the regulation, the award and then the code of practice, confined space.  I think the most up to date is probably the latter, which was published in 2016, and the definition in that says entry to a confined space is considered to have occurred when a person's head or upper body enters the space.


DEPUTY PRESIDENT GOSTENCNIK:  I must say for my own part, Mr Schmitke, your questions proceed upon the basis that - we are talking about regulation of the same subject matter and I am not sure that it has been properly established, certainly not through this witness, that the award deals in respect of many of the clauses identified with safety matters at all, so what does it matter if, in the context of a payment of an allowance, the award defines a particular matter in a particular way and the occupational health and safety defines it for another purpose in a different way?


MR SCHMITKE:  Well - - -


VICE PRESIDENT HATCHER:  I think that was directed at the witness.


Mr Solomon, can you answer that?‑‑‑Your average person reading the award would not - would most likely not be able to give a good comparison from the wording and the definition in the award to how he or she operates under the legislation.  I'm simply saying there's an overlap, an unnecessary overlap, that could be quite easily confusing.


DEPUTY PRESIDENT GOSTENCNIK:  If I take you to a simple example of the multi-storey allowance, the multi-storey allowance is payable for work performed on a building when it reaches a particular height.  It says nothing about fall protection, spotters, a range of other safety measures that might be taken to meet obligations under the Occupational Health and Safety Act.  It simply says that if a building reaches this height, employers will be required to pay employees an additional loading on top of the hourly rate.  That says nothing about safety.  So, it doesn't matter whether it, for example, has a different definition of a storey, does it?‑‑‑No.




MR SCHMITKE:  Mr Solomon, you were also asked questions about the hours of work and in particular overtime and related matters.  The table - again if I can just take you to annexure A to your statement at item 3 - talks about clause 15.3(a) of the On Site Award dealing with overtime issues and a requirement that no apprentice or trainee shall work on their own without supervision.  Can you see that particular section?‑‑‑Yes, I do.

***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


To what extent or how can that be in conflict with work health and safety laws?‑‑‑It imposes an obligation or a higher standard on employees than reasonably practicable.  I'm not sure exactly how you'd police that.


Is it the case, Mr Solomon, that if an apprentice or a trainee is employed on a construction site, they are required to be supervised?‑‑‑That's correct.


So having a provision in an award that says that they are not allowed to work overtime or shift work on their own without supervision, that goes without saying, doesn't it?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Mr Schmitke, it is re-examination.


MR SCHMITKE:  I have no other questions, thank you, your Honour.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Mr Solomon, you are excused and are free to leave?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                            [3.16 PM]




MR KRAJEWSKI:  Your Honour, I just wonder if I might seek to be excused from these proceedings?  These matters refer to the CFMEU and questions which - our interest really lies with the plumbing and fire safety role and I wonder if I could be excused for the moment, please?


VICE PRESIDENT HATCHER:  Yes, you are excused.


MR COFFEY:  Could I ask for the same, please?


VICE PRESIDENT HATCHER:  Yes, thank you.  Mr Crawshaw?


MR CRAWSHAW:  The next witness according to the timetable is Dr Gerard Ayers.



***        DAVID SOLOMON                                                                                                                RXN MR SCHMITKE


THE ASSOCIATE:  Please state your full name and address.


MR AYERS:  Gerard Francis Ayers, (address supplied).

<GERARD FRANCIS AYERS, AFFIRMED                                     [3.17 PM]

EXAMINATION-IN-CHIEF BY MR CRAWSHAW                         [3.17 PM]


MR CRAWSHAW:  Your name is Gerard Ayers?‑‑‑Yes.


You are currently employed as the occupational health and safety and environment manager of the CFMEU Construction and General Division, Victorian and Tasmanian Branch?‑‑‑Correct.


Can you tell us your work address?‑‑‑500 Swanston Street, Carlton.


In Melbourne?‑‑‑Melbourne South.


You have produced a statement for the purpose of giving evidence in these proceedings?‑‑‑I did.


Do you want to make any changes to that statement?‑‑‑No.


Do you say the contents of that statement are true and correct?‑‑‑I do.


I tender that statement.


VICE PRESIDENT HATCHER:  The witness statement of Dr Gerard Ayers (undated) will be marked exhibit 4.



MR CRAWSHAW:  I just want to ask one supplementary question about that very particular matter that was the subject of the last question to Mr Solomon.  Are you aware of the employment of any laser safety officer?‑‑‑Yes, we have them in Victoria.

***        GERARD FRANCIS AYERS                                                                                                XN MR CRAWSHAW


Thank you.


VICE PRESIDENT HATCHER:  What do they do?‑‑‑Supervise to make sure that the people using the lasers are doing it correctly and safely.


When are lasers used?‑‑‑When they do levelling, taking different heights.  A lot of the time they use them internally when they're setting out ceilings such as this one so they get the right height across the board, and so there may not be just those workers, there could be plumbers, electricians and others, so I have to do it correctly.


Are they used pursuant to some Victoria-specific safety requirement or something in general?‑‑‑I'm not sure whether it's just our specific requirement, but I know we do have laser safety officers and we actually do a laser safety training course which helps get that laser safety officer the qualification and gives them the knowledge and skills to be able to become or to be nominated as the laser safety officer.


DEPUTY PRESIDENT GOSTENCNIK:  What colour card do they get?‑‑‑I'm not sure of the colour.


MR CRAWSHAW:  That's the evidence-in-chief.




MR SCHMITKE:  Thank you, your Honour.

CROSS-EXAMINATION BY MR SCHMITKE                                 [3.20 PM]


MR SCHMITKE:  Thank you, Dr Ayers, for your statement and for attending today to speak to it.  Can I just ask by referring you to paragraph 4 of your statement, please?‑‑‑Yes.


In that one, you refer there to your doctorate thesis and the topic?‑‑‑That's right.


Being Consultation and Organisational Maturity in the Victorian Construction Industry?‑‑‑Correct.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


Dr Ayers, I sought to find your thesis because it's of particular interest to me and I could only find one called "Meaningful and Effective Consultation and the Construction Industry of Victoria".  Is that the same?‑‑‑That could be either the article I did for an international journal or it may be a presentation that I have done for - I think it was CIBWA99 - back in 2009 before I'd finished the thesis.


What was the broad subject of your thesis and what did it cover?‑‑‑The basic thesis was how we deal with consultation give it's such an important issue in the Victorian construction industry and given that it's not a mandatory - sorry, it's a mandatory requirement but it doesn't say how to do it well or whether it needs to be meaningful and effective, so using a scale of organisational maturity where the concepts - and there was a theory by a British professor, Emmett Dunn, which said there are constitutional rules such as the OH&S Act and Regulations and there are constitutive principles which need to be applied for that rule to be effective.  The premise was whether some of the moral principles, such as trust, honesty, commitment and respect, were being applied by the two key players, that is the site manager or the project manager and the OH&S representative representing the employees and how they dealt with the consultation process and whether they were able to apply those constitutive principles of trust, honesty, commitment and respect.


Why is it that consultation is important?‑‑‑Well, it gives everyone a voice into how to manage the safety on the site rather than having the old "You shall do as I say", whether it's a good system or not, and it was also to see how much input the OH&S reps had in determining different systems of work given that they are required to be consulted under the Act, but what we have found is sometimes that consultation can be rather superficial.


Perhaps one of the reasons why there's a need to have consultation is because not every site is the same, each project would perhaps undertake different types of work, there's different hazards that are applicable, different types of environmental conditions, those type of things?‑‑‑Yes.


You would agree with that?‑‑‑Yes, for sure.


If I can take you to paragraph 9 of your statement, you talk there about the different approaches and philosophies of work health and safety legislators and you say that they have different approaches and philosophies on enforcement and application of the WHS and OHS laws.  Again, did you mean to say that the legislators have a different philosophy on the enforcement or the regulators have a different philosophy on enforcement because it's not the legislators that do the enforcing, is it?‑‑‑Sorry, it's the regulators, yes.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


Thank you.  If I can go to item 6, paragraph 6, where you have mentioned the Robbins Report?‑‑‑Yes.


That report, I think, is quoted widely in work health safety circles as being the beginnings, potentially, of the self-regulatory approach which is performance-based.  Am I right to say that a performance-based outcome involving self-regulation, does that equal less prescription?  It does, doesn't it?‑‑‑It does because there are - well, there are two standards really, the performance-based and what is also known as process-based and process-based standards are typically the detail provided in such as codes of practice and perhaps, in Victoria's case, Industry Standards.  So we've got the Concrete Industry Standard, which gives specific detail on when the pipe should be tested, how thick they are, how they are to be set up and those sorts of things.  So, there's two types of standards that we use.


Just so I can be clear, that standard you are referring to for the concrete, that's an Australian Standard?‑‑‑No, but that gives similar definitions and, in fact, a lot of the Victorian Industry Standards have been based on Australian Standards.


Just to help me out, a Victorian Industry Standard, is that made by a standards association?  I mean, who - - -?‑‑‑It's by employer stakeholders in Victoria.  That's typically coming from what we call the Victorian Construction Safety Alliance, which is an alliance of large builders.  Worksafe participate and, in fact, Worksafe publish the Industry Standards and then employee representatives, such as myself.


But separate and distinct from the Australian Standards?‑‑‑Correct.


With the performance-based or self-regulatory approach, arguably, in terms of prescription, sometimes it's necessary, sometimes not, but we wouldn't need to have a performance-based system, we wouldn't need to have consultation with workers in circumstances where everything is prescribed for us.  Do you agree with that comment?‑‑‑Probably not.


And it is better to drive safety outcomes to have consultation, be open, be adaptable and so forth when it comes to putting in place measures to reduce risks and have a safe workplace?‑‑‑Provided it's done through that meaningful and effective consultation process which we spoke about earlier, yes.


Because no projects are always exactly the same and one size doesn't always fit all?  Do you broadly agree with that?‑‑‑Correct.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


If I can take you to paragraph 10 of your statement, you say there that the work health safety legislation and the award provisions complement each other and they are not mutually exclusive in many cases.  Can you think of any cases where they are mutually exclusive?‑‑‑Not off the top of my head, no.


At paragraph 11, you talk about employment conditions and you say that, in your opinion, the award is primarily concerned with employment conditions, including payments for allowances, wages, rest breaks and so on and so forth.  Later in that same paragraph, you talk about the award providing particular provisions to be adhered to and implemented in particular circumstances because that generates consistency, uniformity and certainty.  Aren't those particular characteristics inconsistent with a performance-based, non-prescriptive work health safety model?‑‑‑I was more talking about the payment of disabilities that the award pays.  For example, if you're using heavy blocks, it doesn't matter if you're using heavy blocks on this site or the next site, you'll still be paid that disability.


Thank you for clarifying that.  We will come back to the blocks in a minute.  At paragraph 12 again, you talk about the work health safety framework is limited to work health safety issues and doesn't provide the descriptive specificity or detail encapsulated under the award?‑‑‑Yes.


If there is an inconsistency, though, between what the award says and what the legislation requires, then that would represent a conflict and cause confusion.  Is that something - - -


DEPUTY PRESIDENT GOSTENCNIK:  Sorry, I think that is a misleading question given the operation of the Act.  The provisions of a modern award operate subject to occupational health and safety law, they don't override them.


MR SCHMITKE:  I will withdraw that question.


VICE PRESIDENT HATCHER:  Can I just deal with the premise of that.  Dr Ayers, do you identify any provision in the award as actually dealing directly with health and safety as distinct, for example, from providing allowances for certain disabilities or providing for payment if supplied a certain tool or piece of equipment?‑‑‑Not to the best of my knowledge, I don't.


DEPUTY PRESIDENT HAMILTON:  I was going to ask, do any of the clauses identified in attachment A to Mr Solomon's statement have a health and safety role?‑‑‑I haven't got Mr Solomon's - - -


Sorry?‑‑‑I should have brought it but I didn't.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


MR SCHMITKE:  I am just trying to find you a copy.


DEPUTY PRESIDENT HAMILTON:  Mr Maxwell has one.  Attachment A to Mr Solomon's statement, do any of those clauses have a health and safety role in your view?


MR CRAWSHAW:  I think the witness should be told he should have some time to look at that because - - -


THE WITNESS:  It is rather long.


DEPUTY PRESIDENT HAMILTON:  I'm sorry, I thought he'd read it.


MR CRAWSHAW:  It is a very broad question, and not because of the question itself but because of the length of annexure A.


DEPUTY PRESIDENT HAMILTON:  He is still looking at it.


THE WITNESS:  I would argue that the laser safety officer allowance is important to actually make sure there's someone who is capable of knowing how to use that laser safely.


VICE PRESIDENT HATCHER:  It doesn't actually require - I can't find the clause - but it doesn't actually require there to be one, it just says that if there is one, you get paid something?‑‑‑That's right.  I am not awfully familiar with the award.  My role is the OH&S Act and the legislative framework primarily.


DEPUTY PRESIDENT HAMILTON:  Nearly all of them seem to be allowances?‑‑‑Yes.


Maybe not all.  Take your time?‑‑‑Just having a quick read through, they all seem to be allowances rather than specific OH&S-related.


As a general proposition, you would say that allowances don't have a health and safety role?  Is that - I don't want to put words into your mouth?‑‑‑No, no.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


Is that what you are saying?‑‑‑As a general proposition, the allowances are normally to acknowledge there is a disability in working with or having to work with particular materials.


VICE PRESIDENT HATCHER:  Can I just invite you to look at item 4 in that list?‑‑‑Yes.


The clause in question says something to this effect, that where an employee provides tools or personal protective equipment, and there's a whole list of items identified, it's not included in the tool allowance and if the employee provides it, they are reimbursed for the cost in some unspecified way.  Is there any inconsistency between that clause and any general requirement in workplace health and safety law that it's the employer's obligation to provide all personal protective equipment?‑‑‑I've never seen tools defined as personal protective equipment.  Tools are something you use to complete the task.


The clause in question - perhaps I will turn to it - includes protective equipment.  It includes tools or protective equipment and some of these items are, for example, gloves and hand-protective paste for employees engaged in handling hot bitumen and other substances, protective clothing for employees required to use muriatic acid, whatever that is, suitable screens to protect employees from flash where electric arc operators are working and gas masks.  Do you regard the notion that an employee might provide that equipment himself or herself and then be reimbursed to be inconsistent with the WH&S legislation concept that it is the employer's obligation to provide that equipment?‑‑‑Just on the issue of welding screens, it's always been my experience that the welder has to provide their own screens.


You regard that as personal protective equipment?  It obviously would be, wouldn't it?‑‑‑Well, it's to stop the welding flash, not just for the welder but for others who may be working in and around that area.


So it's a safety ---?‑‑‑It's a piece of safety equipment.


In the WH&S legislation, does it allow for any scenarios where the employee and not the employer might provide personal protective equipment?‑‑‑No.


Is that an inconsistency?‑‑‑Potentially, it is, yes.


Thank you.  Mr Schmitke?

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


MR SCHMITKE:  Thank you, your Honour.  I might just, with the leave of the Commission, hand a copy of the On-site Award to the witness, if that assists.


VICE PRESIDENT HATCHER:  Just hand it to the court officer, Mr Schmitke.


MR SCHMITKE:  Dr Ayers, that is a copy printed off the Commission's website of the On-site Award.  I would seek that you just have a look at page 35?‑‑‑Page 35?


Yes, 35.  That deals with the tool and employee protection allowance?‑‑‑Yes.


Pages 36, 37 and 38, those clauses list particular types of tools or protective equipment that, if not provided by the employer, then employee - sorry, they are not provided or are required to be provided by the employee, the employer must pay or reimburse the employee for the cost, but my question goes to all of the items listed for the various occupations, so for bricklayers, stonemasons, plasterers, general civil construction, et cetera.  Are those types of equipment the only types of equipment that employees undertaking those categories of work are required to use in order to have a safe work environment?‑‑‑I'm sure they use lots of other tools as well, so there could be some which are missing, but that's some of the general tools, for sure.


Thank you.


VICE PRESIDENT HATCHER:  I thought the question was directed at protective equipment.


MR SCHMITKE:  The question was directed towards equipment that are provided by the employees and it's in the context of a clause, your Honour, that deals with:


Where the following tools or protective equipment -


and there are particular items that are protective equipment identified within that clause, arguably, including weather-proof clothing, gloves, overalls, basil aprons and other types of specific requirements such as a light coat or jacket, et cetera, et cetera.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


VICE PRESIDENT HATCHER:  I think the witness referred in his answer only to tools.  I think the question might have been directed at are there other types of personal protective equipment that those categories of employee might require that goes beyond what is listed.  Is that the question, Mr Schmitke?


MR SCHMITKE:  Yes?‑‑‑I would suggest that perhaps bricklayers should be provided with masks when they are cutting bricks or tools - - -


Thank you.  To cut to the chase, if I put it to you that this is not an exhaustive list of all of the potential - where it refers to protective equipment, it is not an exhaustive list of all of the particular types of PPE that an employee might need to ensure that they perform work safely, is it?‑‑‑No, this looks more like a list of the tools that they use rather than PPE.


But in terms of, say, subclause (vi), civil construction employees, there's quite specific requirements there regarding gloves, overalls and so forth.  You can see those, can't you?‑‑‑Yes.


For civil construction employees, do you believe that those particular items are all that's required to ensure that they perform work safely?‑‑‑They are under our enterprise bargaining agreement, but I'm not quite sure when there are non-enterprise bargaining agreed companies, I don't know if they supply them or not.


Dr Ayers, when you get - - -


DEPUTY PRESIDENT GOSTENCNIK:  Dr Ayers, just to be clear, that is not your enterprise bargaining agreement, that is the award.  I'm sure if it was your enterprise bargaining agreement, employers all over the country would rejoice.


MR SCHMITKE:  Dr Ayers, when you are asked enquiries about the need to provide safe workplaces in the building construction sector, where do you first look to determine what obligations are required of building industry participants?‑‑‑Personally I go to the OH&S Act, or the WHS Act if I was in Sydney or Brisbane.


No doubt then the regulations that underpin that?‑‑‑Correct, the legislative framework encompasses everything.


How frequently do you look at the award?‑‑‑I don't look at it very often.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


Dr Ayers, do you agree that there could be confusion, as people at the Bar table are experiencing, regarding the provisions of the award and interpreting the provisions of the award and the general work health safety obligations that apply to everybody?  Do you agree that there's or can you see that there's the potential for confusion, complexity, when reading those two obligations or those two instruments at the same time?‑‑‑Not really.


You don't agree with that?‑‑‑No.


If there is a definition of "confined space" in the award that is different to that prescribed by the regulations, you don't think that would create confusion or uncertainty?‑‑‑I know that the - I think it was said before that the OH&S Act takes precedence in those sorts of circumstances.  I'm not sure how many employers look at the award provisions for the definitions or how many look at the regulatory requirements.


If an allowance was paid to an employee, for example, for working in a confined space and the definition of confined space that gives rise to that allowance is different from the work health safety regs confined space definition, would you agree with me that you only need to pay the allowance in relation to the definition of working in a confined space set by the award?‑‑‑If it complies to that definition, yes.


VICE PRESIDENT HATCHER:  Dr Ayers, for what purpose does the WHS Regulations define confined space, that is, there's a prohibition of working in a space of a certain definition or a requirement to have PPE in a certain confined space, what purpose does it define?‑‑‑It's all of the above.  It defines confined space, so when people have to work in the defined confined space, there are certain provisions that they have to meet, such as having the correct level of oxygen and also making sure that there's no - especially, say, in vats or things - there's no toxic substances left in there from previous work.


MR SCHMITKE:  Dr Ayers, I just want to ask about the issues of codes of practice.  I think in your statement, at paragraph 18, in that particular section, you talk about the award requirements are, indeed, descriptive and they only apply under prescribed procedures.  There is another provision - sorry, Dr Ayers - paragraph 15 - - -




MR SCHMITKE:  Of Dr Ayers' statement, your Honour.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


It is that paragraph that refers to the need to be familiar with codes of practice but not obligated to follow them if they believe they have the equivalent or better safety system in place.  Are you aware of - is that a general rule?‑‑‑Yes, it is.  Generally, the codes, again, provide some detail in how to meet your obligations under regulations, but codes will always use the word "should" unless they refer to a specific clause in the regulation, so they are not mandatory but they give guidance upon how an employer can meet their due diligence under their duty of care.


If an employer doesn't have regard to a code of practice, are they in breach of the law?‑‑‑Not technically they are in breach of the law, but it would be - if they haven't got it or they're not familiar with the code then their state of knowledge may not be able to design an equivalent system of work or a safer system of work, so it assists people to understand how to reach a particular outcome.


DEPUTY PRESIDENT GOSTENCNIK:  Mr Schmitke, for what it's worth, as I understand the operation of codes of practice under occupational health and safety legislation, the prosecutorial regime establishes a complete defence to an argument that somebody has breached their duty if it's in relation to a subject matter covered by the code and the employer has complied with the code.  So, compliance to the code is voluntary but it gives you a complete defence if you have complied with it.


MR SCHMITKE:  Thank you, your Honour, that is essentially the line of questioning I was seeking to follow.


The last area I would like to ask you about, Dr Ayers, is the section about technology where you've talked about, for example, I think it was the blocks, paragraph 16, and then in this paragraph, and I'm paraphrasing here, you are saying that it doesn't stop, new and innovative technology is happening, there's always advances that are going forward and if technology is acquired or it means that particular allowances are no longer necessary to be applied or no longer exist, then it doesn't stop - the description doesn't necessarily stop them from advancing and, you know, there's no - it doesn't represent a barrier to improving technology to address safety.  With that in mind, the heavy blocks clause, which is 22.2(o) of the award, does put in place an allowance that is payable with respect to that type of work?‑‑‑Yes.


If I can take you to that particular clause - - -?‑‑‑Sorry, which clause was that again?


It is 22.  It's on page 50 of the copy of the award you have got?‑‑‑Yes.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


Essentially, this provision allows an employee to be paid or requires an employer to pay an employee a particular allowance when they are lifting blocks in between particular weights and, depending on the weight, the heavier the weight, the more the employee gets paid?‑‑‑Yes.


Dr Ayers, in your experience, is it the case that employees are lifting blocks in excess of 18 kilograms?‑‑‑I did a Worksafe report back in - I'd just come back from Sydney - it might have been 2002, where we did a report on heavy blocks.  We interviewed, I think, over 200 blocklayers and every one had shoulder and arm injuries from lifting heavy blocks and they weighed around about those different blocks, around about those kind of weights.  I'm not quite sure how often.  We actually got a block manufacturer - I can't remember off the top of my head - to start making lighter blocks, but, unfortunately, it's a supply and demand and there wasn't much demand, so they stopped the supply, which is unfortunate.


To the best of your knowledge, blocks that weigh over 18 kilos and the use thereof, common or uncommon in the sector?‑‑‑Probably not common, but I have seen them used and they are pretty heavy.


In those circumstances, the best way to reduce the potential for any injury or risk associated with using those blocks is to provide some type of mechanical lifting device or something along those lines; do you agree with that?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Can I just ask, is it possible that by the award setting an allowance for lifting blocks in excess of 18 kilograms, for example, it, in some senses, legitimises that as a safe practice?‑‑‑I don't think architects or designers know that it would even be an allowance and they're the ones who specify what type of materials to use when the buildings are built.  They will specify you have to use X amount of blocks for perhaps different fire ratings, for different sound ratings.  The builder doesn't generally specify the weight of the blocks, it's already been decided.


Perhaps I put the question badly and might be over-reading the clause, but it might legitimise, for example, hand lifting of blocks of that size as distinct from some other safer method of lifting them?‑‑‑Eventually you have to - not being a blocklayer but knowing them and doing this research, someone has to lift it into place eventually because you don't get - it's very rare you'll get some mechanical aid to do that on a scaffold or lifting between a piece of ductwork and the underside of the ceiling, and it's quite problematic when you're talking about trying to get mechanical aids.  You get mechanical aids to probably lift it from the ground onto a work platform, but eventually the bricklayer or the blocklayer has to somehow lift it from where they're stacked and then put them into place.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


MR SCHMITKE:  In doing that, there would be consultation with the workers to work out a way in which, where there is no mechanical aid, that particular process can be done with minimal risk to health and safety, wouldn't there?‑‑‑There should be in theory, yes.


There should be in theory.  And it is not likely that you are going to have an employee just physically lifting an 18 kilogram or above block by themselves?‑‑‑You may, yes.


You may, but isn't the intent of the work health safety obligations and Regulations - Act and Regulations - to ensure that those type of circumstances don't take place because it poses a risk?‑‑‑Yes, that's true.


Do you agree then that if I lifted a 50 kilogram block myself, would that, in your view, represent a risk to my health and safety?‑‑‑Yes, it would.


DEPUTY PRESIDENT GOSTENCNIK:  Mr Schmitke, for what it's worth, and this is something you can raise in submissions, but even assuming there was some mechanical basis for the blocks to be lifted into place, I don't see that the employer is relieved from the obligation to pay the allowance if the employee is engaged in laying the blocks.


MR SCHMITKE:  Your Honour, this is one of the few exceptions actually to that assumption.  The clause does specify that where they are provided with mechanical means for the handling, lifting and placing of heavy blocks, then the allowances don't apply.


DEPUTY PRESIDENT GOSTENCNIK:  I see.  Thank you for that.


MR SCHMITKE:  Dr Ayers, the proposition I am going to put to you more generally is this - - -


MR MAXWELL:  Sorry, your Honour, to interrupt Mr Schmitke, but that only applies to stonemasons.


MR SCHMITKE:  Thank you very much, Mr Maxwell.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


Dr Ayers, as time goes on, the particular types of things that the award describes and prescribes, things like particular types of safety equipment to be provided, like particular types of aprons, or lists of equipment for which employees are reimbursed if they provide them themselves and it is required to provide, you know, it's PPE, essentially, the longer the award contains these type of provisions and technology advancing and the work health safety non-prescriptive approach, isn't there going to be a continuing disconnect between what the award says and what the obligations are, in real life, on employers and employees are?


MR CRAWSHAW:  Your Honour, I object to that question.  The question should be put in relation to particular provisions of the award rather than on some generality.


VICE PRESIDENT HATCHER:  If it wasn't 10 to 4, I would probably accept that objection but - - -


MR CRAWSHAW:  I'm sorry?


VICE PRESIDENT HATCHER:  If it wasn't 10 to 4, I would probably accept that objection.  I will allow the question.


THE WITNESS:  Are you saying that - - -


VICE PRESIDENT HATCHER:  Ask the question again, Mr Schmitke.


THE WITNESS:  Thank you.

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


MR SCHMITKE:  There are provisions, and this blocks clause that we have just talked about is an example of that, where it was written and drafted at a time when the assumption was that there would be no mechanical aids, but if a mechanical aid was provided, then they wouldn't get the allowance, but because of the disability associated with doing that particular type of work, then there needed to be a specific clause referring to it and an allowance associated with it, a disability allowance, but, as time goes on, as technology changes, the difference between what's in the award and what actually happens in workplaces is going to become greater and greater and greater.  Is that a proposition that you would agree with?‑‑‑Only up to a point.  Our industry is going in leaps and bounds with technology but there's one constant and that is the worker still has to perform a certain amount of work and we can't get away from that.  We will always be an industry which is very heavily reliant on, for example, manual handling because of the nature of the work, demands that people have to build scaffolds.  When concrete panels first came in, there were big arguments and big concerns from our bricklayers/blocklayers that it would all be concrete panels, but there is still a lot of work that has to be done by blocklayers and bricklayers simply because that's the nature of the design.  So, technology will come in and do different things, but eventually people still have to put together the meccano set, no matter how advanced the meccano set is.


Thank you.  But things like mechanical aids for lifting devices, those type of things, have there been any advances in the last 15 years, changes in technologies used on construction sites?‑‑‑If you're talking about blocklayers, no.  If you're talking about formwork, no.  The materials may become lighter, but there are still people having to lift really heavy frames, really heavy blocks and when designers and architects continue to specify those types of materials, then they will continue to be used.


Thank you.  I have no further questions.


DEPUTY PRESIDENT HAMILTON:  I have just gone one question.  If you go to page 38 of the award, clause (c) - do you have 38 of the award, page 38?‑‑‑Yes.


Clause (c), there's a list there of certain things that have to be provided.  Is that consistent with OHS legislation?  Are there longer lists or different lists?‑‑‑Protective clothing obviously is.  I am presuming the pneumatic rubber tyred wheelbarrows would be for ease of use and manual handling, so, yes.


There are different lists in OHS legislation, are there?‑‑‑There are different what, sorry?


Lists of items that are required in those circumstances?‑‑‑Not in the OH&S legislation.  OH&S legislation is much more general.


Right.  Is it best for that sort of list to be left to OHS legislation?‑‑‑I presume if there was such a list in the OHS legislation, many people would see that as being too prescriptive and it might be inconsistent with the Robbins philosophy of performance-based legislation.  For example, the legislation under hearing says you can't expose an employee for more than eight hours at 85 decibels.  It doesn't give you specific detail in how to achieve that and that's when the codes may come into place or different things like that.


Thank you.


VICE PRESIDENT HATCHER:  Anything else, Mr Schmitke?


MR SCHMITKE:  Your Honour, if I might actually just ask one further question?

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


VICE PRESIDENT HATCHER:  Arising out of that?


MR SCHMITKE:  Well, related to that, which is the sort of nexus between the provisions of the award and work health safety legislation.




MR SCHMITKE:  Dr Ayers, I am very curious, and there's no trick here, because you are a very well-educated, qualified witness and it's important that the parties and the Commission, in particular, hear what you have to say, but I want to know to what extent has the award and various references to allowances or work health safety or PPE, all those type of things, to what extent do you think this helps improve safety outcomes in the sector?‑‑‑I don't really know that it does given that the award is more about allowances and disabilities and the Act and the OHS legislative framework is more about trying to eliminate the hazard and risk.


So these are all about payments for disabilities or additional allowances to be provided to employees to compensate them for doing particular work in particular conditions?‑‑‑Yes, that's the way I'd see it.


It is not necessarily about improving safety outcomes in the sector per se?‑‑‑Like I say, I'm not overly familiar with every clause in the award, but, no, I don't think the award improves safety outcomes in general.


VICE PRESIDENT HATCHER:  Does any other party wish to cross-examine this witness?  No.  Mr Crawshaw, any re-examination?


MR CRAWSHAW:  No, your Honour.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Dr Ayers, you are excused and you are now free to leave.

<THE WITNESS WITHDREW                                                            [4.00 PM]


VICE PRESIDENT HATCHER:  Mr Schmitke, before I forget, and I will forget if I don't ask it now, can I just ask you one question about clause 20.1(b) of the award, page 36.  That is one of the clauses the MBA seeks to be deleted; is that right?

***        GERARD FRANCIS AYERS                                                                                                 XXN MR SCHMITKE


MR SCHMITKE:  Yes, it is.


VICE PRESIDENT HATCHER:  Having regard to Mr Solomon's evidence, is it the MBA's position that any personal protective equipment should in all circumstances be provided by the employer and not the employee?


MR SCHMITKE:  Your Honour, in terms of Master Builders' policy position on that question, the answer is that we encourage employers to take every step to provide safe workplaces, including the provision of PPE.  We don't encourage employees to provide their own PPE and only where they do and they are directed to provide it by the employer, then we would - the policy is the employer should reimburse the employees for any cost associated with the provision of that equipment.


VICE PRESIDENT HATCHER:  That is the very purpose of the clause, isn't it?  As I understood Mr Solomon's evidence, there is nothing in the WH&S legislation which contemplates a situation where the employee provides the equipment and is reimbursed for the cost, that is, this is the only instrument which provides for that scenario.


MR SCHMITKE:  Your Honour, I am quite certain - I'll bring it up shortly - the actual Regulations in terms of PPE do actually prescribe or allow for an employer to provide, you know, compensation to an employee in circumstances where they provide their own PPE.




MR SCHMITKE:  If I can just - - -


VICE PRESIDENT HATCHER:  You don't have to do it now, but can you at some stage tell us the reference to that?


MR SCHMITKE:  Yes, I will certainly do that.




MR SCHMITKE:  Your Honour, just while I am on my feet, on this question of work health safety, the submissions that we would be making, just to put it in context here, is that, yes, we would seek that the allowance be deleted to the extent that it refers to work health safety matters.  The secondary position is that to the extent that it provides for an allowance to be payable in certain conditions, we would remove the work health safety aspects of that to the extent that we think it's inconsistent with what the Regulations provide, and a third element would be to replace the specific references in the award, such as these lists, with a generic reference more akin to what is in the Regulations.


VICE PRESIDENT HATCHER:  As to the second position, under 20.1(b), would we delete all references to personal protective equipment but keep tools?  Is that what you had in mind?


MR SCHMITKE:  Yes.  Your Honour, can I indicate that our primary position, whilst it remains, the intention is not necessarily to take away the allowances provided for employees, it's to reduce confusion, to reduce the complexity of the award and to not allow this instrument to set work health safety-related matters that could potentially provide confusion to the sector.


VICE PRESIDENT HATCHER:  Deleting of the allowance clauses, how are you not taking away the allowances?


MR SCHMITKE:  Well, deleting the work health safety aspects of those allowance clauses.  That is the secondary position that I am instructed - sorry, your Honour.


VICE PRESIDENT HATCHER:  I am talking about the primary position.


MR SCHMITKE:  The primary position is to delete - - -


VICE PRESIDENT HATCHER:  That would delete the allowances, would it not?


MR SCHMITKE:  Delete any clause that deals with work health safety matters, including any clause that deals with allowances.


DEPUTY PRESIDENT GOSTENCNIK:  Mr Schmitke, does the annexure to Mr Solomon's statement correspond with each of the items that you seek be removed or amended?


MR SCHMITKE:  By and large, yes, but not completely, not completely.


DEPUTY PRESIDENT GOSTENCNIK:  Just picking up on the Vice President's point, going back to multi-storey allowance, your primary position is it should be deleted?




DEPUTY PRESIDENT GOSTENCNIK:  Your alternative position is if it is not deleted, the occupational health and safety aspects of that clause should be removed?


MR SCHMITKE:  Correct.


DEPUTY PRESIDENT GOSTENCNIK:  You will have to, for my benefit, identify the occupational health and safety aspects of that clause.


MR SCHMITKE:  That is a bad example, your Honour.  This is more along the lines of some of these PPEs.


DEPUTY PRESIDENT GOSTENCNIK:  I understand, but there are a number of them that fall into that category.


MR SCHMITKE:  Yes, but I did indicate, your Honour, just to be clear and not seeking to confuse or mislead you, not every single matter that is dealt with in this table is the subject of our claim and, in many ways - - -


DEPUTY PRESIDENT GOSTENCNIK:  That is why I asked you the question at the beginning do each of the items correspond with and you said "yes".


MR SCHMITKE:  Sorry, your Honour.


DEPUTY PRESIDENT HAMILTON:  He didn't say "yes", he said "in some respects" or something.  He didn't say "yes".


MR SCHMITKE:  The words I used, your Honours, were "by and large, yes, by and large, yes", but I should also indicate that there's a related claim that deals with the allowances more broadly and multi-storey allowance would be one that we think could be rationalised.


DEPUTY PRESIDENT GOSTENCNIK:  It would be helpful for me if you were able to identify which of the clauses in the annexure are not the subject of a claim by you.


MR SCHMITKE:  Yes, certainly.


VICE PRESIDENT HATCHER:  On the second level.


DEPUTY PRESIDENT GOSTENCNIK:  On the second level, I meant.


VICE PRESIDENT HATCHER:  Or the third level?


DEPUTY PRESIDENT GOSTENCNIK:  On the second and third levels.


MR SCHMITKE:  All right.


VICE PRESIDENT HATCHER:  They are all sought to be deleted on the first level, aren't they?




MR CRAWSHAW:  One of the difficulties we have is that there's these general submissions made about obsolescence and inconsistent repeatedly made in the submission and then in relation to each of them, it says, "One example of this is" such and such allowance.  We have dealt with the examples in our submissions, and I think so has the AWU, but we don't know what - - -


VICE PRESIDENT HATCHER:  You should dash off and send off a request for particulars then.


MR CRAWSHAW:  I am sorry?


VICE PRESIDENT HATCHER:  You should dash off and send of a letter of particulars tonight.


MR CRAWSHAW:  It's not our job to make their claim better, but the difficulty is we have only dealt with the particular allowances - - -


VICE PRESIDENT HATCHER:  No, but it might make your response better.


MR CRAWSHAW:  In a draft award clause, the problem is there's so many different options that you can't - my friend is not able to draft an award clause because it's all over the place.


MR SCHMITKE:  Your Honours and Commissioners, if I might just respond to that.  No party to this proceeding is going to sit here and take every single witness through every single clause in the award and ask them questions.  That is not the approach we have taken to this matter.


VICE PRESIDENT HATCHER:  Mr Schmitke, I think there is simply a general desire for a better understanding of your second and third positions and what that would actually involve and if you can do anything to assist in that respect, it would be useful.


MR SCHMITKE:  Yes, certainly, your Honour.


VICE PRESIDENT HATCHER:  We will adjourn in a second.  Can I just make this request, that to the extent that any party wishes to show a document to a witness in cross-examination circumstances where either the advocate or the witness is in a different State or we're in a different State from both, can they provide a copy to the Commission by close of business the day before so that we can ensure that all parties, the witness and us have a copy of the relevant document.


If there are no other procedural matters, we will now adjourn and resume at 10 am tomorrow morning.

ADJOURNED UNTIL WEDNESDAY, 04 APRIL 2017                   [4.07 PM]



DAVID SOLOMON, AFFIRMED...................................................................... PN280

EXAMINATION-IN-CHIEF BY MR SCHMITKE.......................................... PN280


THE WITNESS WITHDREW............................................................................ PN333

PETER WILLIAM MIDDLETON, AFFIRMED............................................. PN340

EXAMINATION-IN-CHIEF BY MR BOANZA............................................... PN340


CROSS-EXAMINATION BY MR CRAWSHAW............................................ PN376

THE WITNESS WITHDREW............................................................................ PN430


EXAMINATION-IN-CHIEF BY MR SCHMITKE.......................................... PN450

EXHIBIT #3 RESPONSE OF MR SOLOMON TO WITNESS STATEMENT OF DR GERARD AYERS................................................................................................................... PN452

THE WITNESS WITHDREW............................................................................ PN457


CROSS-EXAMINATION BY MR CRAWSHAW............................................ PN457

RE-EXAMINATION BY MR SCHMITKE...................................................... PN748

THE WITNESS WITHDREW............................................................................ PN803

GERARD FRANCIS AYERS, AFFIRMED..................................................... PN812

EXAMINATION-IN-CHIEF BY MR CRAWSHAW....................................... PN812


CROSS-EXAMINATION BY MR SCHMITKE............................................... PN830

THE WITNESS WITHDREW............................................................................ PN956