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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT HAMILTON
COMMISSIONER GREGORY
COMMISSIONER HARPER-GREENWELL
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2016/23)
Melbourne
10.04 AM, WEDNESDAY, 5 APRIL 2017
Continued from 4/04/2017
PN1738
VICE PRESIDENT HATCHER: Firstly, I should note the appearance of Ms Hogg for ABI and New South Wales Business Chamber.
PN1739
MS L HOGG: Thank you. May it please the Commission, my name is Hogg, spelt H-o-g-g, initial L, solicitor with Australian Business Lawyers and Advisors and I seek permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.
PN1740
VICE PRESIDENT HATCHER: I think we've already granted you, or ABI, permission to be represented by lawyers.
PN1741
MS HOGG: Thank you.
PN1742
VICE PRESIDENT HATCHER: Are there any housekeeping matters before we go to the first witness? Mr Schmitke?
PN1743
MR SCHMITKE: Yes, your Honour, thank you. If I could just mention two minor matters. The first is in relation to the documents which we handed to the Commission yesterday morning. We have circulated pdf copies of those to all parties today. The second matter I would wish to mention is with respect to the application we foreshadowed regarding an application to have evidence taken in a restricted way. I sent an email this morning, I don't know if it's received, to - - -
PN1744
VICE PRESIDENT HATCHER: Yes, we've seen that.
PN1745
MR SCHMITKE: Yes, thank you. Essentially, your Honours, Commissioners, if I could make one or two very quick remarks just in relation to some background there, very quick. There were a number of conversations I had with the witness and her employer last night. Those conversations continued this morning and it was this morning in which I was advised that the witness would no longer wish to make themselves available with respect to their statement. The events have occurred in the workplace, the nature of which - - -
PN1746
VICE PRESIDENT HATCHER: Mr Schmitke, you don't need to explain any of this, unless you really want to.
PN1747
MR SCHMITKE: Well, I did want to outline to the Commission that this was a witness who was wanting to provide evidence and it is, in fact, her employer and as a result of her employer's concern, that they have directed that person to - - -
PN1748
MR CRAWSHAW: I don't know whether you can hear me down there in Melbourne but we do - - -
PN1749
VICE PRESIDENT HATCHER: We certainly can.
PN1750
MR CRAWSHAW: Well, I'll try and be a bit softer then. But it's not appropriate that the MBA advocate give evidence from the bar table about the circumstances of this unidentified witness.
PN1751
VICE PRESIDENT HATCHER: Mr Schmitke, I think all we need to know is you're that not calling a witness.
PN1752
MR SCHMITKE: Yes, the only other addition - - -
PN1753
VICE PRESIDENT HATCHER: Beyond that it's all a matter for you.
PN1754
MR SCHMITKE: I would though nonetheless, your Honour, seek to have that document marked as an exhibit and I would also seek leave to make some submissions with respect to same in our closing submissions.
PN1755
VICE PRESIDENT HATCHER: Sorry? You want the statement marked as an exhibit?
PN1756
MR SCHMITKE: Yes.
PN1757
VICE PRESIDENT HATCHER: On what basis?
PN1758
MR SCHMITKE: Well, on the basis that it is still a document which we would seek the Commission have regard to. I think that the understanding that the parties have had is that notwithstanding the evidentiary objections, the Commission broadly was going to have regard to those objections and then place weight on the various evidence at the prescribed time.
PN1759
VICE PRESIDENT HATCHER: Well, that brings us back to the issue - no doubt there will be an objection about it but that brings us back to the confidentiality application, just for a start.
PN1760
MR SCHMITKE: Yes, yes.
PN1761
VICE PRESIDENT HATCHER: That is, are you tendering the document in its - - -
PN1762
MR SCHMITKE: No, I would seek that the document be tendered in its redacted form as provided and annexed to our submission.
PN1763
VICE PRESIDENT HATCHER: All right. Well - - -
PN1764
MR SCHMITKE: Your Honour, perhaps if I could just clarify, perhaps even to benefit the CFMEU, I just seek it to be marked as an exhibit in much the same manner as any other document. Yes, I understand that it's not a statement which is going to be attested to but it's still an exhibit, it's still a document and we'd just seek to have it marked as part of the proceedings.
PN1765
VICE PRESIDENT HATCHER: How's it to be tested?
PN1766
MR SCHMITKE: The witness won't make themselves available, your Honour, yes.
PN1767
VICE PRESIDENT HATCHER: I understand that so how is it to be tested?
PN1768
MR SCHMITKE: It isn't to be tested. It isn't to be tested.
PN1769
DEPUTY PRESIDENT HAMILTON: I couldn't give it any weight if there's no cross-examination over its contents.
PN1770
MR SCHMITKE: That is a very good point, that's exactly right, your Honour.
PN1771
DEPUTY PRESIDENT HAMILTON: Presumably we can't give it weight because that will flatly contradict every aspect of it.
PN1772
MR SCHMITKE: My submission to the Commission would be that the Commission isn't necessarily bound by the normal rules, as we all are aware. That said though, I would just seek that it be marked an exhibit and make the submissions at that point. Whether the Commission provides any weight to it or not is not a matter for me, it's a matter obviously for the Commission. I would just seek that the document be marked an exhibit. That is essentially what I'm seeking this morning.
PN1773
VICE PRESIDENT HATCHER: Well, you're seeking a statement of an unidentified person to be marked as an exhibit.
PN1774
MR SCHMITKE: Yes.
PN1775
VICE PRESIDENT HATCHER: What's the basis for the confidentiality?
PN1776
MR SCHMITKE: Well - - -
PN1777
VICE PRESIDENT HATCHER: We have the un-redacted version has been lodged.
PN1778
MR SCHMITKE: Yes, yes.
PN1779
VICE PRESIDENT HATCHER: Why should it be treated as some sort of confidential document?
PN1780
MR SCHMITKE: Well, I'm seeking just simply the - tender it as a document in its redacted form as attached to our annexure. I'm not seeking anything other than that. I just seek that it be marked as an exhibit so as to enable me to make submissions with respect to it at a future point in this proceeding.
PN1781
VICE PRESIDENT HATCHER: Mr Schmitke, we won't admit the statement.
PN1782
MR SCHMITKE: Thank you, your Honour.
PN1783
VICE PRESIDENT HATCHER: Are there any other preliminary matters? Mr Schmitke, do you or anybody else? Mr Crawshaw?
PN1784
MR CRAWSHAW: Mr Maxwell has.
PN1785
MR MAXWELL: Your Honour, I was just going to raise that I emailed through to the Commission four documents yesterday evening that we wish to put to the MBA witnesses in Canberra and Sydney today. I just wanted to ensure that the Full Bench has received copies of those.
PN1786
VICE PRESIDENT HATCHER: We haven't. Yes, I think that's all been organised, Mr Maxwell.
PN1787
MR MAXWELL: Thank you, your Honour.
PN1788
VICE PRESIDENT HATCHER: Mr Schmitke, do you want to call your first witness, Robert Wilson, who should be in Canberra?
PN1789
MR SCHMITKE: Yes, I do, thank you, your Honour. If I could call Mr Robert Wilson who's in Canberra to come forward please.
PN1790
VICE PRESIDENT HATCHER: Yes, just adjust the camera first. Can we get a bit closer?
PN1791
MR SCHMITKE: Your Honour, I understand that the witness, have him make an affirmation.
VICE PRESIDENT HATCHER: All right. Administer the affirmation to the witness, please.
<ROBERT WILSON, AFFIRMED [10.12 AM]
EXAMINATION-IN-CHIEF BY MR SCHMITKE [10.13 AM]
PN1793
VICE PRESIDENT HATCHER: Mr Schmitke.
PN1794
MR SCHMITKE: Thank you, your Honour. Good morning, Mr Wilson. Do you have a statement with you that you prepared in advance of these proceedings?‑‑‑No, I do not.
PN1795
You don't have a copy of your own witness statement?‑‑‑I do have a copy of my own witness statement.
PN1796
That's the document I was referring to?‑‑‑My apologies.
PN1797
No, that's okay. Could I just ask you to look at that document and confirm that that is a document with the heading Witness Statement of Robert Wilson, some 25 paragraphs long signed by you on 9 December 2016?‑‑‑That's correct.
PN1798
Is there anything in that statement that you wish to change?‑‑‑No, there is not.
*** ROBERT WILSON XN MR SCHMITKE
PN1799
Thank you. If I could seek leave to have that document marked as an exhibit.
VICE PRESIDENT HATCHER: Yes, the witness statement of Robert Wilson dated 9 December 2016 will be marked exhibit 32.
EXHIBIT #32 WITNESS STATEMENT OF ROBERT WILSON DATED 09/12/2016
PN1801
MR SCHMITKE: Thank you, your Honour. I've no additional matters to raise.
VICE PRESIDENT HATCHER: Mr Crawshaw and Mr Maxwell?
CROSS-EXAMINATION BY MR MAXWELL [10.15 AM]
PN1803
MR MAXWELL: Thank you, your Honour. Mr Wilson, it's Stuart Maxwell here from the CFMEU. I wish to ask you a number of questions. In paragraphs 4, 5 and 6 of your statements you refer to the MBA training policy towards 2020, can you see that?‑‑‑Yes, I can.
PN1804
Yes. Does that policy make any specific reference to junior rates?‑‑‑No, it does not.
PN1805
Okay. If I can take you to paragraph 12, the opening sentence begins, "In dealing with our member associations" who are the member associations?‑‑‑The member associations of the MBA are the state and territory associations themselves, and then further to that their members of those associations are some 32,000 business in the construction industry.
PN1806
But in regard to dealing with our member associations you're referring to the dealings with the state based associations of the MBA?‑‑‑Yes, and it's those state associations that make up the national training advisory committee that I look after.
PN1807
Mr Wilson, are you aware that there are various work experience programs run in the various states for school students - - -?‑‑‑In terms of just in clarification, in terms of what the MBA itself runs, or programs that are run by schools, themselves?
PN1808
Programs that are run by schools themselves to provide work experience to students in the building and construction industry?‑‑‑Yes, I'm aware of those.
*** ROBERT WILSON XXN MR MAXWELL
PN1809
Yes. In paragraph 12, you refer to students undertaking the school based apprenticeship and vocational learning at Certificate II level, reaching second stage apprentice wages without possessing the associated skills expected of employers. Are you aware that the same issue was raised in the 2012 apprentices case?‑‑‑No, I'm not. I'm not across the 2012 case, at all.
PN1810
Okay. Do you have knowledge of the award provisions regarding apprentices?‑‑‑I would say that I have a minimal understanding. My background is from training and in the cases sometimes that information intersects with the IR area.
PN1811
So I take it that you're not aware that a specific provision was inserted into clause 15.9 to deal with the type of disputes and concerns that you raise in paragraph 12?
PN1812
MR SCHMITKE: Sorry, if I could just interrupt?‑‑‑I - - -
PN1813
VICE PRESIDENT HATCHER: No, there's an objection which I have to deal with. Yes?
PN1814
MR SCHMITKE: It's not an objection, your Honour, it's more I think Mr Maxwell was referring to the on site award when he's referring to a clause reference, so I'm making the assumption he is. So if we could just clarify that please.
PN1815
VICE PRESIDENT HATCHER: So are you referring to a specific clause of the on site award, Mr Maxwell?
PN1816
MR MAXWELL: Yes. Yes, I am, your Honour. I'm referring to clause 15.9 of the Building and Construction General On-site Award [2010].
PN1817
VICE PRESIDENT HATCHER: Right, thank you. Please proceed.
PN1818
MR MAXWELL: Yes - - -?‑‑‑Yes, look, I I'm certainly not across 15.9 of the 2010 Award.
*** ROBERT WILSON XXN MR MAXWELL
PN1819
And so you're not aware of any disputes being dealt with in regard to the issue as to whether a person holding a Certificate II qualification should progress to second year apprentice wage rates?‑‑‑I'm not aware of any disputes. What I would say in answer to your question is, in terms of the work that I undertake, I find quite regularly that students who have done a (indistinct) and school qualification at a level 2, then without having done any work experience, are often on second year wages upon exiting school.
PN1820
Surely that is a decision of the employer to pay those wages?‑‑‑No, not in my understanding. My understanding is that if you earn 25 per cent of units, and this goes back to where units of competency are nested in our qualifications, from the Cert I, Cert II, Cert III and through, that you can quite easily by doing a Certificate II at a school, as a young person, upon exiting school without any experience working with an employer or working on a site, you would be deemed to be under the 25 per cent rule, a second year apprentice in terms of competency based wage progression.
PN1821
And are you saying that the employers, or the members of the Master Builders Association don't believe that those people have achieved those relevant competencies?‑‑‑No, I'm not saying I'm not saying that at all. What I'm saying is that in my experience and from what I have heard, is that we have a gap in terms of students earning units of competency, being awarded those units of competency and not having the necessary experience that actually goes with those units of competency. So what I'm saying is, students are being signed off too quickly, too easily, by some RTO's, many of those RTO's being schools, and the expectation of having a certain skill level is not there when young people are being deemed to be having achieved their 25 per cent. So there is a mismatch between schools and RTO's ticking and flicking, in some cases, and actually having the skills that employers would see those students should have.
PN1822
But if the award made reference to people being required to meet the minimum necessary work experience requirements, would that address the concern you've just raised?‑‑‑We the units of competency that's set in the qualifications actually outline that already. The issue is one of, as I've just mentioned, that RTO's in terms of the way funding works in the national training system, RTO's are very quick to sign off young people in terms of their units of competency because it then attracts a payment to those RTO's. What we are finding is that those people are being ticked off far too quickly and when they are tested on work sites, as an example, and as stated in those units of competency, they cannot actually undertake those tasks in a variety of settings and therefore ultimately they are not really competent as they have been signed off.
*** ROBERT WILSON XXN MR MAXWELL
PN1823
You're talking about requirements of the training system but you're not aware that the competency based wage progression in the award allows employers to challenge whether an apprentice has actually met the requirements expected of the employer?‑‑‑The in most cases when we're talking about, and I'm talking at the moment specifically about students in school situations undertaking a Certificate II, they are leaving schools with those Certificate II long before they go anywhere near an employer. Then when they enrol in a post schooling, when young people enrol in a Certificate III in carpentry, as an example, those units, because they're already in the Certificate III, they already actually have those units and RTO's are then are bound to talk to those students as to what units of competency and qualifications they already have existing. So automatically, what I'm saying, is those students, without having worked on a site, without spending time on a site, are actually under the competency based wage progression, are actually at are actually at second year wages when you match that back to what's in the award.
PN1824
Your Honour, I wonder if the witness can be shown the copy of the Building and Construction General On-site Award?
PN1825
VICE PRESIDENT HATCHER: All right, so Mr Wilson, can you - - -
PN1826
MR MAXWELL: Sorry, your Honour, I withdraw that. I just understand that Mr Wilson is in Canberra and not in Melbourne.
PN1827
VICE PRESIDENT HATCHER: Just hold on. Mr Wilson, that document should be somewhere in your vicinity, can you see it?‑‑‑Your Honour, which which document am I looking for?
PN1828
We're looking for a copy of the Building and Construction General On-site Award. Is that anywhere around?‑‑‑The only document I've got let me just see. I've got a pile of documents here. I've still got some in there but it's titled, "Congestion & Reliability Summary." Underneath that I do have a Joinery & Building Trades Award [2010]. They are the only two documents I have here.
PN1829
MR MAXWELL: Is your Honour - - -
PN1830
MR SCHMITKE: Your Honour, which award was it that Mr Maxwell - - -
PN1831
VICE PRESIDENT HATCHER: The On Site Award.
PN1832
MR SCHMITKE: Okay, so that was not a copy circulated to the parties yesterday, or to the Commission. Mr Maxwell only circulated Joinery Building Trades - the National Joinery & Building Trades Award.
PN1833
VICE PRESIDENT HATCHER: Yes, so we don't have that, Mr Maxwell.
PN1834
MR MAXWELL: Yes, your Honour, that's what I was going to just say.
*** ROBERT WILSON XXN MR MAXWELL
PN1835
VICE PRESIDENT HATCHER: Okay.
PN1836
MR MAXWELL: So I won't press that issue. Mr Wilson, would you agree that the building and construction industry has the highest full time employment of 15 to 24 year olds, compared to all industries?‑‑‑Yes, I would. That is research we did in 2014.
PN1837
And that's backed up by figures from the ABS, and NCVR?‑‑‑Certainly I looked at NCVR figures. In terms of the ABS figures they were provided to me by our chief economist at the time.
PN1838
And do you agree that there are more 15 to 19 year olds employed full time in the building and construction industry than any other industry?‑‑‑Based on the information given to me by our chief economist at the time, I would say that is correct.
PN1839
I have no further questions of the witness.
PN1840
VICE PRESIDENT HATCHER: Is there any other person who wishes to cross-examine this witness? No? Any re-examination, Mr Schmitke?
PN1841
MR SCHMITKE: No, thank you, your Honour.
VICE PRESIDENT HATCHER: All right, thank you for your evidence, Mr Wilson. You're excused and you're now free to leave?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [10.27 AM]
PN1843
VICE PRESIDENT HATCHER: So the next witness is Mr Spence?
PN1844
MR SCHMITKE: Yes, that's right, your Honour.
PN1845
VICE PRESIDENT HATCHER: And he's in Canberra too?
PN1846
MR SCHMITKE: Yes, he is.
*** ROBERT WILSON XXN MR MAXWELL
PN1847
VICE PRESIDENT HATCHER: Yes, Mr Spence, can you come forward to the witness box please? Do you have a copy of your witness statement with you?
PN1848
MR SPENCE: Might I just check the documents on the bench, Commissioner?
PN1849
VICE PRESIDENT HATCHER: All right. Mr Schmitke, did Mr Spence bring a copy of his witness statement with him?
PN1850
MR SCHMITKE: We asked him to do so, your Honour.
PN1851
VICE PRESIDENT HATCHER: I'm not sure if - - -
PN1852
Mr SPENCE: I do have a copy with me, your Honour. It's not been put in the witness box but I do have a copy I brought with me.
PN1853
VICE PRESIDENT HATCHER: Yes, well can you go and get that please?
PN1854
MR SPENCE: Yes.
PN1855
VICE PRESIDENT HATCHER: Yes, all right, well - - -
PN1856
MR SCHMITKE: May it please your Honour.
VICE PRESIDENT HATCHER: Yes, all right, well you just stay standing and we'll administer the affirmation to you now.
<CAMERON BENEDICT SPENCE, AFFIRMED [10.29 AM]
EXAMINATION-IN-CHIEF BY MR SCHMITKE [10.29 AM]
PN1858
MR SCHMITKE: Mr Spence, good morning. You've just obtained a copy of your statement, so can I just confirm that that is a statement with the words at the top, "Cameron Benedict Spence", and that - - -?‑‑‑That is the case.
PN1859
And that document is 36 paragraphs long?‑‑‑Yes.
PN1860
And signed by you on 9 December 2016?‑‑‑Yes, that is the case.
*** CAMERON BENEDICT SPENCE XN MR SCHMITKE
PN1861
Thank you. If I could seek then to have that document tendered and marked as an exhibit.
VICE PRESIDENT HATCHER: Yes, the statement of Cameron Benedict Spence dated 9 December 2016 will be marked exhibit 33.
EXHIBIT #33 STATEMENT OF CAMERON BENEDICT SPENCE DATED 09/12/2016.
PN1863
MR SCHMITKE: I've no additional questions, your Honour.
VICE PRESIDENT HATCHER: Mr Maxwell?
CROSS-EXAMINATION BY MR MAXWELL [10.30 AM]
PN1865
MR MAXWELL: Thank you, your Honour. Mr Spence, in paragraph 2 of your statement you refer to your previous role in private practice. How long were you engaged in that role?‑‑‑Just under four years in civil law, a few years in criminal law before that.
PN1866
Yes, and when was that?‑‑‑That would have been approximately 2013 to sorry, late mid to late mid 2012 to early 2016.
PN1867
You refer in paragraph 2 to industrial relations advice pertaining to the building and construction industry?‑‑‑Yes.
PN1868
What type of advice was that?‑‑‑Many of my I worked as a construction worker, essentially. Many of my clients were building companies, so the advice was advice arising out of questions coming from the award payments, classifications of employees, redundancy entitlements, rostered days off, payment and general payment queries, I think, largely.
PN1869
In paragraph 17 of your statement you refer to instances where members have expressed a desire for the option of time off in lieu?‑‑‑Yes.
PN1870
How many instances can you recollect have occurred in the last month?‑‑‑In the last month, none in the last calendar month that I can recall.
PN1871
What about the last six months?‑‑‑It'd be maybe four, five.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1872
And the last twelve months?‑‑‑Look, eight or nine.
PN1873
VICE PRESIDENT HATCHER: So Mr Spence, when you say you've been made aware that employees of some members would like to have an option to take time off in lieu, so how did you become aware of that? Was through members asking you?‑‑‑EBA negotiations, largely.
PN1874
Yes. Right?‑‑‑Helping yes, or even discussions with a member where they'd be seeking clarification on an issue in the award, or further to that, discussions about the pro's and cons of entering an enterprise bargaining agreement and whether what kind of arrangements would be possible under that under that instrument.
PN1875
So in both contexts it's members communicating to you that their employees had requested an option to take time off in lieu in various circumstances, is that - - -?‑‑‑Not just no. No, not just members. There have been occasions where I've spoken to the workforce, as well, and that's not uncommon, and those queries have been raised, that could time off in lieu be taken.
PN1876
Right, thank you.
PN1877
MR MAXWELL: And Mr Spence, what type of businesses did you receive these inquiries from?‑‑‑All manner of businesses in the construction industry, head contractors, subcontractors, down to painters, plumbers yes, a wide variety.
PN1878
So how many had contractors that you received - - -?‑‑‑I couldn't tell you an exact number, three or four maybe.
PN1879
Would you agree that a program against scheduling of work is critical to the successful construction project?‑‑‑I think if I I don't know what's critical to a successful construction project. I imagine lots of things are, and that would be one of them, yes.
PN1880
And based on your experience in the industry since March 2016, who dictates the hours of work on a construction site?‑‑‑It depends, frankly. If the company is a party to an EBA then the CFMEU often dictates the hours on a construction site.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1881
Well, putting aside the CFMEU, in regard to the employers on a construction site, is it the head contractor that normally sets the hours of work on the site?‑‑‑Honestly, that's a variable. It will depend on the subcontractors they can get at a time, rain delays, things of that nature can also impact a timetable, so no, I don't think it solely rests with their contractors. If that is the question you're asking, does it solely rest with the head contractor. I should say, is that the question you're asking though?
PN1882
Yes?‑‑‑Then the answer would be no. It could rest with the union, it could rest with rain delays, it could rest with availability of subcontractors.
PN1883
Well, you're aware of the recent discussions about the light rail project in Canberra?‑‑‑I am.
PN1884
And how are the hours of work, or the opening hours of that site determined?‑‑‑I don't know, precisely.
PN1885
So if Lendlease were doing a construction project in the Act, would Lendlease dictate on what hours that site would open?‑‑‑I don't know.
PN1886
If GL Con(?) were doing a construction project in the Act would GL Con set the hours of work on that construction site?‑‑‑I don't know.
PN1887
MR SCHMITKE: Your Honour, if I could just raise an objection here. I know the witness has just answered that question but Mr Spence is being asked to address hypotheticals and his earlier evidence was that he didn't necessarily know or that there was a variable - - -
PN1888
VICE PRESIDENT HATCHER: So they didn't what?
PN1889
MR SCHMITKE: His earlier evidence was that he didn't necessarily wasn't aware of, or explained that there could be a number of variable with respect to the way in which hours of work are set. Now Mr Maxwell is putting to him some hypotheticals but I don't understand how he can possibly even answer these questions.
PN1890
VICE PRESIDENT HATCHER: I'm sure if he doesn't know the answer, he'll say so. Yes, just proceed, Mr Maxwell.
PN1891
MR SCHMITKE: Yes. Mr Spence, would you agree that in general, subcontractors and their employees have to conform to the hours of work set by the head contractor on a construction site?‑‑‑Again, I don't know. I couldn't I don't know the answer to that question.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1892
In paragraph 21 of your statement you refer to the RDOs as industry RDOs or lockdown weekends. Can you see that?‑‑‑If I may have a moment, counsel. Yes. Yes.
PN1893
Now they are not the same thing though, are they?‑‑‑Well, to all intents and purposes, they were up until very recently. Industry RDOs were formally, up until quite recently, agreed often in EBAs between the Master Builders Association and the ACT branch of the construction union. That's no longer the case, but that is what was referred to as industry RDOs. Now those RDOs were contained for the most part in enterprise bargaining agreements that stipulated lockdown weekends, the weekends - work was not to occur on weekends around public holidays where the CFMEU, previously in agreement with Master Builders, had made a calendar that it would be agreed that work would not continue on the sites at those times. So with respect, I think they are essentially, in industry understanding, the same thing.
PN1894
Your Honour, can Mr Spence be shown a copy of the 2017 ACT RDO calendar put out by the CFMEU?‑‑‑I have that.
PN1895
VICE PRESIDENT HATCHER: Yes, all right, thank you?‑‑‑Okay.
PN1896
MR MAXWELL: You'll see at the bottom that there is an explanation of the colouring in the projects and that the 38 - - -?‑‑‑Regrettably sorry, I should interject. This copy I have in front of me is in black and white, so I can't make any of that out. I have seen a copy of this previously and I'm aware of the colouring you're referring to, but the document in front of me does not contain that.
PN1897
VICE PRESIDENT HATCHER: All right, Mr Maxwell, so you'll have to do that best you can.
PN1898
MR MAXWELL: Yes. Mr Spence, looking at the calendar, do you accept that the 38 hour week RDOs are, looking at the dates, 20 February, 14 March, 18 April, 24 April, 22 May, 13 June, 10 July, 14 August, 11 September, 3 October, 6 November and 27 December?‑‑‑Yes, honestly I can't make that out on the copy in front of me. I can accept that what you're telling me is most likely correct, based on my previous experience and I I think what you're telling me is accurate, but to strictly answer the question on the document in front of me, I can't make that out on this document. They're just the colours are I can see that those things are shaded in but it's very difficult to determine what the shading is. Because I know from my previous experience that they're different colours, right? The 36 hour on the colour document you may be looking at - - -
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1899
VICE PRESIDENT HATCHER: Mr Maxwell, do you want him - - -?‑‑‑The 36 hour RDO is blue.
PN1900
Mr Maxwell, do you want him to assume that those are the dates for the purpose of any further questioning? Otherwise the document just speaks for itself, doesn't it?
PN1901
MR MAXWELL: It does. Well, if you can assume that those days are correct, Mr Spence - - -?‑‑‑Yes.
PN1902
On those days that are identified the majority of those days were Monday, and would you agree that those days generally conform with clause 33.1(a)(1) of the award?‑‑‑I don't have a copy of the award in front of me, Mr Maxwell.
PN1903
In paragraph 22 of your statement you refer to clause 33.1(a)(1), can you find that?‑‑‑I can. I can see the paragraph 22 of my statement, yes.
PN1904
Yes, and can you just read that to yourself so you get a proper understanding of it?‑‑‑Yes.
PN1905
And do you accept that the 38 hour week RDOs that I just identified in the calendar conform with clause 33.1(a)(2), in that they're taken on the fourth Monday in each four week cycle, except where it falls on a public holiday?‑‑‑Yes, I can accept that.
PN1906
VICE PRESIDENT HATCHER: So why are there two in April then?‑‑‑I think it's two public holidays, Commissioner, if I may interrupt.
PN1907
MR MAXWELL: Your Honour, that's taken for the I suppose for the convenience of industry, so that there is - - -
PN1908
VICE PRESIDENT HATCHER: They coincide with Easter and Anzac Day.
PN1909
MR MAXWELL: Yes, so there's lockdown periods (indistinct) is - - -
PN1910
VICE PRESIDENT HATCHER: And by the way, Mr Maxwell, there's not a majority there's six. And I think you missed out on 27 January. I don't recall you saying that one.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1911
MR MAXWELL: I stand corrected but the 27 January - - -
PN1912
VICE PRESIDENT HATCHER: Mr Maxwell, what's the point of this question? I don't understand the point.
PN1913
MR MAXWELL: Well - - -
PN1914
VICE PRESIDENT HATCHER: What relevance has this got to this case?
PN1915
MR MAXWELL: Your Honour, if you look at paragraph 22 of Mr Spence's statement he refers to clause 33.1(a)(1) and the Mr Spence in paragraph 26 is seeking to support the deletion of any reference to the nominated industry rostered day off, and clearly from the RDO calendars that are produced the nominated industry rostered day off is the days arranged in accordance with clause 33(a)(1).
PN1916
VICE PRESIDENT HATCHER: I'm sorry, Mr Maxwell, I thought your question was going to the distinction between an RDO a lockdown weekend and them not being the same thing. It's true that I mean, just looking at the calendar the lockdown weekends are sometimes well, they coincide with some RDOs but they don't coincide with all of them. So that they seem to correlate, and based on my memory of having negotiated many a calendar over the years, they coincide with public holidays.
PN1917
MR MAXWELL: Yes, your Honour. The lockdown weekends do - sorry, the RDOs on the lockdown weekends normally do work in conjunction with the public holidays.
PN1918
VICE PRESIDENT HATCHER: Yes.
PN1919
MR MAXWELL: If I can take you to paragraph 34 of your statement, Mr Spence.
PN1920
VICE PRESIDENT HATCHER: Mr Maxwell, do you want us to mark that calendar?
PN1921
MR MAXWELL: Sorry, your Honour, yes, if we could please.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
VICE PRESIDENT HATCHER: All right, so the 2017 ACT RDOs calendar will be marked exhibit 34.
EXHIBIT #34 2017 ACT RDO CALENDAR.
PN1923
MR MAXWELL: Mr Spence, in paragraph 34 of your statement can you see that - - -?‑‑‑I can, yes.
PN1924
You refer to clause 33.1(a)(2)?‑‑‑Yes.
PN1925
Now you would agree that the award already allows employers and employees to agree on a substituted RDO?‑‑‑It does, yes.
PN1926
So if I can take you back - - -?‑‑‑Again, sorry, I don't have a copy of the award in front of me. I know that but I can't remember the exact wording.
PN1927
If I could take you back to clause 29 where you - - -?‑‑‑To 25?
PN1928
No, clause 29?‑‑‑Okay, clause 29, I don't follow you.
PN1929
VICE PRESIDENT HATCHER: Of his statement, is that what you're referring to?‑‑‑Paragraph 29? Sorry.
PN1930
MR MAXWELL: Sorry. Sorry, I withdraw that. If I can take you to paragraph 29 of your statement?‑‑‑Yes.
PN1931
And you identify that the majority of employees may agree for an RDO to be taken at a more suitable time to the parties?‑‑‑Yes.
PN1932
Would you agree that that's already catered for, to a degree, by clause 33.1(a)(2)?‑‑‑I can't answer that without reading the clause, to be honest. They're complex clauses. I've read them a number of times. But to answer your question I would want to read clause 31.1(a)(2).
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1933
VICE PRESIDENT HATCHER: Mr Spence, can I ask you this question, in relation to that point, that is that you sorry, the point you make in paragraph 28 where you say that you regularly receive calls from members asking if there was a restriction in negotiation of RDOs, are you able to tell me how many of those calls are from employers who are covered by an enterprise agreement, and those that are solely covered by an award?‑‑‑No. Honestly, Commissioner, I couldn't I couldn't say how many of what are which in that.
PN1934
Right?‑‑‑It's I can say many employers are covered by the 2013 CFMEU pattern enterprise bargaining agreement in the ACT but there are also many on the award, so I'm no, I'm sorry. I'd be prevaricating. I can't answer that.
PN1935
All right. Because again, as I said, in my knowledge of a number of enterprise agreements in the industry, not just in the ACT, that there are different provisions relating to work on RDOs when compared to the award?‑‑‑Absolutely, and the CFMEU pattern EBA is very different to the award. It essentially grants 26 RDOs in the calendar year, as opposed to 13 under the award and that's by virtue of working a 36 hour week, where 40 actual hours of work are performed and four hours accrue per week, which is twice the amount under the award. So there is a hugely substantial difference and obviously any advice I give to my members is based on whether that what instrument covers their employment arrangements.
PN1936
And that calendar that you have in front of you is the calendar which pertains to the combination of RDOs that are set out in agreements and the award?‑‑‑That's right.
PN1937
Yes?‑‑‑What sorry, Commissioner. Sorry.
PN1938
Yes, that that's right but yes, that's fine?‑‑‑Well, this calendar in front of me, Commissioner, to answer that question, I believe this calendar is my understanding is that it's the union's attempt to cover both, so the 38 hour week RDO that's indicated there, is the one that arises under the award, that's right.
PN1939
Yes?‑‑‑And the 36 hour week RDO is the one that arises from clause 23 of the pattern EBA, the CFMEU EBA, or yes, I think it's clause 41 in the older EBAs - - -
PN1940
Yes?‑‑‑Which is still in place. But the way that clause operates in practice, is that the 26 RDOs essentially accrue and the Saturdays are cashed the extra RDOs are cashed out to be taken on the Saturdays of long of lockdown weekends.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1941
Yes. And that's hence the extra number, where it does work out to around 20 RDOs actually paid out. And sorry, I should also say, I understand the union for this year has put in the 38 hour week RDO versus the 38[sic] hour week RDO to show the difference to, presumably their members, to show the difference in the comparative advantages of having being covered by one instrument as opposed to another.
PN1942
MR MAXWELL: Mr Spence, I was just taking you to clause 33.1(a)(2)?‑‑‑Yes.
PN1943
And you were saying that it's fairly complex. Perhaps if I can just read it to you, it's only very short:
PN1944
33.1(a)(2) of the award provides agreement on alternate RDOs, where an employer and a majority of employees at an enterprise agree another day may be substituted for the nominated industry rostered day off.
PN1945
That's all it states?‑‑‑Yes.
PN1946
So would you agree that the issue you raised in paragraph 29 of your statement is to a degree, already catered for under the award?‑‑‑Yes. Yes.
PN1947
VICE PRESIDENT HATCHER: Mr Spence, is the problem that you're referring to that you don't get this agreement very often, is that the problem?‑‑‑Yes.
PN1948
MR MAXWELL: Mr Spence, now I know you've only been working in the building and construction industry for a relatively short period but are you aware of the history of the introduction of the 38 hour week and RDOs?‑‑‑Look, very roughly, not in great detail.
PN1949
So do you know why the 38 hour week was introduced, what the reasons were?‑‑‑No. No, I couldn't recite them to you.
PN1950
VICE PRESIDENT HATCHER: That's a very broad question, Mr Maxwell, we could be here for ever on such an issue.
PN1951
MR MAXWELL: I was introducing (indistinct).
PN1952
SPEAKER: It goes back to the Harvester case.
PN1953
VICE PRESIDENT HATCHER: Ordinary working hours. I mean, really - - -
PN1954
MR MAXWELL: Well - - -
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1955
VICE PRESIDENT HATCHER: Well, was there some special reason discrete to construction that you want to put to the witness?
PN1956
MR MAXWELL: Your Honour, I was just trying to find out whether the witness was aware of the history and whether he knew whether sorry, Mr Spence, do you know why the banking of RDOs was introduced for workers on distant jobs?‑‑‑Sorry, can you repeat the question please, Mr Maxwell?
PN1957
Do you know why the banking of RDOs was introduced for workers on distant jobs?
PN1958
VICE PRESIDENT HATCHER: Distant jobs?‑‑‑No, I don't know for certain, Mr Maxwell.
PN1959
MR MAXWELL: Yes. And how many - - -?‑‑‑I could guess but I don't think that's what you're asking me.
PN1960
How many members of the MBA ACT work on distant jobs?‑‑‑I couldn't possibly carry that information in my head, Mr Maxwell. It would be a significant number.
PN1961
Well, how - - -?‑‑‑In fact, it's quite common in the ACT. Many of our members work as far afield as Wollongong, Nowra, Bega. The areas surround the ACT are largely very small regional areas, as I'm sure you're aware, so I've had many conversations with members where it's not uncommon for work to be carried out in the far south coast, down as far south as Merimbula, Nowra, Cooma, Eden, Bega, Queanbeyan, commonly. These are areas without much business in them if I can just put it in such a blunt term, and often our members will carry out work at distance. It would be a it would I don't pretend to know the number in my head but it would be a very significant number.
PN1962
If I can take you to paragraph 34 - - -?‑‑‑Yes.
PN1963
There you're referring to where you refer to this clause fails, you're referring to clause 33.1(a)(iv), is that correct?‑‑‑No. The clause I think I'm referring to there is 33.1(a)(vi). You'll see this clause at the start of paragraph 34, that this refers to the clause above it in paragraph 33.
PN1964
Sorry, I - - -?‑‑‑And from memory, again I don't have the award in front of me, but from memory subparagraph 6 is essentially the cashing out award the cashing out clause, if I can put it in that term.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1965
I stand mistaken. I think it's more my reading of the roman numerals rather than so in paragraph 34, you're referring to clause 33.1(a)(6)?‑‑‑When I say, "this clause fails", yes. The "this" refers to 33.1(a)(vi).
PN1966
And in paragraph 34, you say, "This clause fails to recognise the ability that employers and employees to agree on a substitute RDO"?‑‑‑Yes.
PN1967
But that's incorrect, isn't it?‑‑‑No, I don't believe so.
PN1968
Perhaps I - - -?‑‑‑And, look, again I'm doing this from memory but clause subparagraph 6 only is is only enlivened when it's required by the employer, so it's essentially my understanding is it's an extrinsic requirement clause. There's a necessary requirement. That's not the same as agreement between workers and employers.
PN1969
Well - - -?‑‑‑It's the way subparagraph 6 operates, from memory, is that the employer actually must request it. There's no scope in that clause for the employees to bargain, essentially.
PN1970
Well - - -
PN1971
MR SCHMITKE: Your Honour, I might perhaps if Mr Maxwell could just perhaps read the provisions of that clause to Mr Spence so that he has the wording more clearly defined.
PN1972
MR MAXWELL: I was just about - - -
PN1973
VICE PRESIDENT HATCHER: I'm not sure that's going to help.
PN1974
MR SCHMITKE: He doesn't have the benefit of the instrument?‑‑‑It's not going to help.
PN1975
VICE PRESIDENT HATCHER: I'm not sure it's going to help.
PN1976
MR MAXWELL: Mr Spence, the opening words of clause 33.1(a)(vi) states the following:
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1977
Except where agreement has been reached in accordance with clause 33.1(a)(ii) and 33.1(a)(iii).
PN1978
So do you accept now that clause 33.1(a)(vi) recognises the ability of employers and employees to agree on a substituted RDO?‑‑‑No, I don't accept that, Mr Maxwell. The words you read out at the start of subparagraph clause 33.1(a)(vi), they are simply referring back to earlier clauses in the award. The gravamen or the heart of 33.1(a)(vi) is further down, which you did not read, which states, "When an employee seeks the banking of RDOs they seek the extra" I can't recall the actual formulation of the words but that is the condition imperative of that clause of the award coming into effect. You'll see it about half way through the wording of that clause.
PN1979
MR SCHMITKE: Yes, again, your Honours, Commissioners, it may well benefit if Mr Maxwell read the entire clause out. I mean, the point Mr Spence is making here, I think, is relevant. Mr Maxwell has read out only a part of that clause and it creates an impression. That's not the full clause.
PN1980
VICE PRESIDENT HATCHER: Just hold on a second while I - - -
PN1981
MR MAXWELL: Mr Spence - - -
PN1982
VICE PRESIDENT HATCHER: Just hold on, I just want to read this for myself because I'm not following this. So Mr Spence, firstly there's the capacity for the employer and a majority of employees to agree to have a substituted RDO, which means that they can work on the industry RDO, is that right?‑‑‑Sorry, can you repeat the question please, your Honour?
PN1983
I'm just trying to understand how these clauses work. First of all, there's a capacity for the employer and a majority of employees at the enterprise to agree on a substituted RDO, which means - - -?‑‑‑Yes, that's earlier on in the award 33.1(a)(i).
PN1984
Which means that if that happens work can be performed on the industry RDO and as a substituted RDO. Is that right, Mr Spence?‑‑‑I'm not sure, your Honour. I'd want to read the award to be honest.
PN1985
MR SCHMITKE: Your Honour, that is in relation to distant work.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1986
VICE PRESIDENT HATCHER: That's distant work?‑‑‑Yes. And that's - thank you for whoever said that, that's right. It's limited to that class of employees who might have a company as we - - -
PN1987
SPEAKER: No, no, (ii) is distant work.
PN1988
VICE PRESIDENT HATCHER: 33.1(a)(ii).
PN1989
SPEAKER: That's not distant work, (iii) is distant work.
PN1990
THE WITNESS: I think (ii) is just an agreement and again I'm going from memory but (ii) is an agreement to give rise to an - - -
PN1991
VICE PRESIDENT HATCHER: That's why I said - let's talk just one at a time. 33.1(a)(ii) as I understand it says that the employer and the majority of employees may agree to have a substituted RDO which would mean that if such an agreement is reached work can be performed on the industry RDO. Is that - - -?‑‑‑Yes, that is the case.
PN1992
And then - - -?‑‑‑And the industry RDO is the Monday that's set out - the Monday, the 4th Monday except for where it's a public holiday.
PN1993
Then in addition under 33.1(a)(vi), if there's no agreement nonetheless you can have a substituted RDO where it's required by the employer and the conditions are met, that is to allow other employees to be employed productively to carry out out of hours maintenance or in the case of unforeseen delays to a project or a section of it. Is that right?‑‑‑Yes, that's right.
PN1994
So what's the problem?‑‑‑Well, as I understand it, Mr Maxwell was saying that there exists a power beyond. 33.1(a)(vi) created some type of ability for an agreement to be reached, but it's not that at all in practice.
PN1995
Don't worry about what Mr Maxwell's problem is. What's your problem with how those two provisions interact?‑‑‑I don't know that I have a problem with it necessarily, Commissioner.
PN1996
I thought you - I'm just looking at paragraph 34 of your statement, I'm just trying to understand what the point is?‑‑‑May I just have a moment, Commissioner?
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN1997
Sure?‑‑‑So what I'm saying is under clause 31.1(a)(ii), they can come to an agreement. 31.1(a)(vi) fails to recognise that -
PN1998
Which in practice should have the effect that if necessary work is undertaken on the RDO that is it substitute of an agreement, employees be paid at ordinary rate.
PN1999
Sorry, it's the ordinary rate. So subsection (vi) attracts Saturday penalty rates at a minimum.
PN2000
Right?‑‑‑In fact it's arguable that you may have to be - you may get rates in addition to the Saturday penalty rates, which is I think an unnecessary impost on my members. It should just be flexible as per - as is envisaged in 33.1(a)(ii). But it can operate in practice as a bit of a trap in that 33.1(a)(vi) is only enlivened when there's this requirement you see set out in the wording there.
PN2001
So is the point that if you do it by agreement the substituted - if you have a substituted day by agreement you work on the industry day, you get paid ordinary rates?‑‑‑Yes.
PN2002
But under 33.1(a)(vi) that may not be the case?‑‑‑That's right.
PN2003
That's the point?‑‑‑It's not the case.
PN2004
MR SCHMITKE: Your Honour, if I might - I'm loathe to interject here, there's a difference in the phrasing in those two clauses. One's talking about nominated industry roster days off at 33.1(a)(ii) and the second subclause 33.1(a)(vi) talks about prescribed rostered days off.
PN2005
VICE PRESIDENT HATCHER: What's the difference?
PN2006
MR SCHMITKE: Well, the difference is that the award sets out an RDO system which talks about cycles, four weekly cycles and it falling on the fourth Monday in a four weekly cycle. It doesn't specify when that cycle starts. The RDOs fall on - well the industry RDOs are determined with reference to this calendar.
PN2007
VICE PRESIDENT HATCHER: Which is given effect to enterprise agreements, not the award.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2008
MR SCHMITKE: That is the question or a matter I was going to put to the witness in re-examination.
PN2009
VICE PRESIDENT HATCHER: So when the clause to nominated industry rostered day off is that given a definition in the award somewhere?
PN2010
MR SCHMITKE: It isn't.
PN2011
VICE PRESIDENT HATCHER: Sorry?
PN2012
MR SCHMITKE: It's not.
PN2013
VICE PRESIDENT HATCHER: It's not. Right.
PN2014
DEPUTY PRESIDENT GOSTENCNIK: Mr Spence, RDOs which you refer to industry RDOs, are those - I know you don't have a - you don't have a coloured calendar in front of you but those are the ones that designated as a 38 hour week RDOs. Is that right?‑‑‑Sorry, can you repeat the question please Mr Maxwell?
PN2015
When you refer to industry RDOs, you're referring to the 38 hour week RDO. Is that right?‑‑‑I don't know, I didn't draft this calendar.
PN2016
No, no, when you use - - -?‑‑‑I believe that's the case.
PN2017
When you use the term industry RDO are you referring to the 38 hour week calendar RDO?‑‑‑Well, I'm just referring to the award. They talk about a nominated industry RDO which is not I think really the case, I think that wording is a misnomer. It's an RDO stipulated by the award.
PN2018
Well - - -
PN2019
DEPUTY PRESIDENT HAMILTON: Is the point - sorry.
PN2020
DEPUTY PRESIDENT GOSTENCNIK: Sorry. Go on.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2021
DEPUTY PRESIDENT HAMILTON: Is the point you're trying to make, and I'm not sure I follow, this that there is provision for agreement in the award but it is circumscribed by a number of conditions. First of all a majority agreement and a reference to nominated and secondly by agreement that it refers to prescribed, it also provides for penalty rates and also has conditions. Are you suggesting it simply should be by agreement without any of those additional provisions. Is that what you're saying?‑‑‑I'm saying it should be more simple and more flexible. I have looked at the proposed wording my colleagues and the national office have made but I'm am not 100 per cent familiar with it. I have seen it. I know that proposed wording arises from the National Industrial Relations Advisory Committee which I represent the ACT Master Builders Association in, where we meet and we discuss, and that is essentially the thrust of the thing is flexibility, yes, if I can put it bluntly like that. That's the thrust of the submission.
PN2022
DEPUTY PRESIDENT GOSTENCNIK: So what you're saying is that all the pre-conditions I mentioned should be removed and simply by agreement either with the majority or by individual employees. Is that what you're saying?‑‑‑Again, I defer to the proposed wording my colleagues in the national office have put before, but we want greater flexibility essentially. We believe this is needlessly - pardon me, your Honour - Master Builders ACT definitely believes that this is needlessly prolix and prescriptive and confusing when we advising our members.
PN2023
VICE PRESIDENT HATCHER: Mr Spence, this calendar does that have any application or practical operation in what's called I think cottage or just plain house building?‑‑‑In the residential sector?
PN2024
Yes, in the small scale residential sector?‑‑‑It would depend. It would depend if the residential builder was a member of the CFMEU or if enough of their staff were members anecdotally and traditionally and just speaking - - -
PN2025
DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Spence you mean whether a builder had an enterprise agreement, because correct me if I'm wrong - - -?‑‑‑Yes.
PN2026
- - - the only - the calendar in and of itself has no legal force and effect except where there's an agreement?‑‑‑No, that's right.
PN2027
An enterprise agreement?‑‑‑That's right, yes. It's a reflection - the 36 hour week RDO lock down weekends are a reflection of the union - - -
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2028
And the programming of the RDOs in the calendar, particularly the 38 hour week RDOs bear little resemblance to the award provision. They are determined by reference to the EBA. So for example, an RDO - the award prescribes that RDOs will be taken in a 20 day cycle and they'll occur on the fourth Monday, except where there's a public holiday. Well, plainly that's not the pattern, so that the first RDO occurs on a Friday coinciding with the day after Australia Day?‑‑‑Yes.
PN2029
The second occurs on a Monday, the third occurs on a Tuesday because it's a - Monday's a public holiday again coinciding with a public holiday, but only three weeks after the first. So it's not the pattern prescribed in the award. So how much flexibility can an award turn bring about when industry players are in effect agreeing to an enterprise agreement which contains I think the very inflexibilities about which you complain?‑‑‑Well, we don't support these inflexibilities, we don't support lock down weekends and we certainly don't encourage our members to sign an EBA that contains lock down weekends. I mean they're free to do so of course but it's got inherent commercial risks given the new tendering code, but just beyond that there are productivity questions. The sites are locked for the entirety of these long weekends, regardless of the fact that other costs still accrue like fencing and things of this nature. I think to answer - well, correct me if I'm wrong, your Honour, but I think to answer your question there is inflexibility in the current award around banking and cashing out RDOs, they happen under very prescribed circumstances. A lot of the feedback I've got, both from my members and their employees on many occasions when I've gone out and talked to their workforces is that they would welcome this. They would welcome the ability to bank more RDOs, to have potentially an extra 13 days as a block at the end of the year if they wanted to go overseas. I've had that example raised. I've also had the example raised of childcare commitments where people would rather take - be free to choose when they take their RDOs and not be so prescribed. So the feedback I constantly get from the membership and many of their employees is that they would greatly welcome much more flexibility around how RDOs could be taken, when they be free to be cashed out as in agreement with the employer, free to be banked as in agreement with the employer and free to be taken - free to be taken.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2030
Sorry, accepting all of that for a moment, the question really that I have amounts to this, that let's assume all of the flexibilities were introduced that you seek into the award and they benefited award only reliant employers and employees, when those employers and employees come to work on a construction site where the principal contractor for example is covered by an enterprise agreement to which this calendar applies, the fact of the matter is, is it not, that the site will work in accordance with the calendar, so it doesn't really matter what the award reliant employer wants to do. They won't be able to work on that site on that day if it's a lock down weekend or an RDO. Isn't that the case?‑‑‑That's a bit of a movable feast to be honest, Commissioner - your Honour. Yes, that is partly true, so that's right what you say if a head contractor was under a lock down weekend or enough subcontractors were under EBAs, sorry, that contained lock down weekends. It is the case that regardless of what an employee may want, if they're governed by those instructions they're going to be, pardon the pun, locked in to the lock down weekends. That's right. In practice, in reality in Canberra that's less and less. Many head contractors are just ignoring the EBA and opening up on lock down weekends. The new tendering code put forward by the ABCC has had a great impact in this area, it's been publicised recently that EBAs containing lock down weekends will not be code compliant. So it plays out, I think to be blunt, it plays out a lot more differently on the ground. I'm sure there are many sites open where they're supposed to be subject to a lock down weekend but aren't.
PN2031
DEPUTY PRESIDENT HAMILTON: Sorry, Mr Spence, these provisions seem somewhat complex. There's nominated RDOs, there's prescribed RDOs, there's two systems of agreement which contain different conditions. Are you saying that there's scope for more - a less complex award, and secondly what people do with agreements is another matter entirely? Is that what you're saying?‑‑‑More or less yes, that's right. There is - I think there's a huge - there is definitely a strong wish for a less complex award in many - and many businesses do choose to stay on the award for various reasons, and of course when someone enters an enterprise bargaining agreement hopefully they do so understanding that it is in a sense a binding industrial relations contract, that they can be penalised to breaching. Hopefully they're very aware of what restrictions or obligations that instrument contains.
PN2032
MR SCHMITKE: Your Honour, if I might - - -?‑‑‑But it is - it is a matter for them, that's right. Yes.
PN2033
Your Honour, if I might just perhaps assist. The mischief here that we seek to resolve in terms of this section of the award is that the phrase "industry rostered day off" features in the award is treated as "this being an industry rostered day off", so gives effect to this calendar irrespective of whether they're covered by an enterprise agreement or not. That is confusing, the parties have different views on that but that question but that's the clarification we seek to provide.
PN2034
DEPUTY PRESIDENT GOSTENCNIK: By industry do you mean only the 38 hour week or do you mean the 38 and the 36?
PN2035
MR SCHMITKE: I mean the 38 hour week.
PN2036
DEPUTY PRESIDENT GOSTENCNIK: Only?
PN2037
MR SCHMITKE: That's my understanding, yes.
PN2038
DEPUTY PRESIDENT GOSTENCNIK: Well, I have to say - - -
PN2039
MR MAXWELL: Your Honour - - -
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2040
DEPUTY PRESIDENT GOSTENCNIK: Sorry, go ahead.
PN2041
MR MAXWELL: Your Honour, I'm a bit concerned that this cross-examination is turning into some submissions and I'm concerned about the extent to which people are saying that this award is complexed. I think they're chasing shadows. If I can - Mr Spence, are you aware that the award allows agreements on working other than the rostered day off cycle?‑‑‑Sorry, can you repeat the question please, Mr Maxwell?
PN2042
Are you aware that there is an award provision that allows agreement on working other than the rostered day off cycle?‑‑‑Other than the rostered day off - sorry, I just didn't hear the last word that you said?
PN2043
Rostered day off cycle?‑‑‑Off cycle? You mean replace working on another day other than the nominated industry RDO?
PN2044
Well are you aware that there is provision in the award that allows the employer and the majority of employees to agree on their working hours that don't follow the nominated industry rostered day off?‑‑‑No, as far as I'm aware they're bound by 33 under the award, the spread of hours essentially, that the hours must occur within those times lest they be overtime.
PN2045
VICE PRESIDENT HATCHER: Mr Spence, is there any capacity in the award to work the 38 hour week without any rostered days off?‑‑‑Not easily - sorry, again, I'd like to see a copy of the award I think before I answer that question. Look, off the top of my head there may be some capacity for an agreement to be reached where you're paid out everything but I'd have to look at the cashing out clause again because from memory it's restricted.
PN2046
MR MAXWELL: So Mr Spence, in all your time advising your clients on this award, no one has directed your attention to clause 33.1(a)(vii) of the award that allows for an employer and the majority of employees, employees of a particular enterprise to agree that the 4 x 4 week cycle doesn't operate?‑‑‑No, I'm aware of that but I don't think that's what you're asking to be honest. And again, I don't have the benefit of the award in front of me.
PN2047
MR SCHMITKE: And your Honours, Commissioners, again that's not the full extent of that clause that Mr Maxwell read out. I think that's the mischief that Mr Spence - - -
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2048
VICE PRESIDENT HATCHER: Well, let's try and plough through this and you can do this in re-examination. Mr Maxwell.
PN2049
MR MAXWELL: Thank you, your Honour. Mr Spence, in regard to clause 33.1(a)(vi), is it not the case that the MBA's main complaint in regard to that clause is that if an employer requires and employee to work on an RDO that is not agreed to by the employee, that they have to pay them penalty rates in addition to their approved RDO entitlements?‑‑‑Sorry, are you asking me if that's Master Builders ACT's issue or the gravamen of my colleagues' submissions from the national office? Because my understanding is the mischief the national office - they've already said that they're seeking to redress is that by - is the words "nominated industry RDO". That's as I understand what they're seeking to redress. I mean obviously, you know, yes, my members don't - it is an impost on them, it's an extra cost, that's right. And as I understand it, these clauses commonly come - such an RDO clause will commonly be used off the back of a rain day or something like that, where there are already significant costs mounting up. It is - it can have a very detrimental effect on my members' financial health, absolutely. Not hugely but they don't like that, as you can expect.
PN2050
So if you turn to paragraph 33 of your statement?‑‑‑Yes.
PN2051
So your complaint there is that the wording in clause 33.1(a)(vi) of the on-site award states that:
PN2052
If an employee is required to undertake necessary work they will be eligible for accrued entitlements in addition to being paid Saturday penalty rates.
PN2053
?‑‑‑Yes.
PN2054
So is it not the case that the variation that you seek is to remove the payment for the penalty rates on that day?‑‑‑Well, again I'd repeat the answer to my previous question. I'm not here seeking anything, I'm here on behalf of MBA ACT. I'm here giving evidence in support of our national office's submissions, so I'll defer to those submissions.
PN2055
So is it the case that members of the ACT MBA are not seeking to vary the award?‑‑‑No, no, that's not the case and I think I've already answered that question but I'm happy to answer again. Members of Master Builders Association of the ACT are seeking to vary the award. They're seeking to make it more flexible and less complex.
*** CAMERON BENEDICT SPENCE XXN MR MAXWELL
PN2056
Is it not the case that the variation that's proposed by the MBA is seeking to reduce the entitlements of employees that currently exist under the award?‑‑‑Well, the MBA ACT's made no submissions in that regard, Mr - counsel.
PN2057
Is it the case that the National MBA through its industrial relations committee of which you are a member have decided to pursue an award variation that seeks to reduce the entitlements of workers who are required to work on a rostered day off?‑‑‑Again, I've read the - I've looked at the proposed wording changes for the award but I'm not familiar enough with them to say that - to answer the question conclusively. I've looked at the document but I can't remember the words off the top of my head and I don't have it here in front of me.
PN2058
Your Honour, I have no further questions of this witness.
VICE PRESIDENT HATCHER: Thank you. Any re-examination, Mr Schmitke.
RE-EXAMINATION BY MR SCHMITKE [11.22 AM]
PN2060
MR SCHMITKE: Yes, thank you, your Honour. Mr Spence, with respect to the - well, I'd like to ask you about practical experiences that you've witnessed about which inquiries were made to you regarding RDOs. The questions I have are how many occasions have you seen businesses try and operate on lock down weekends?‑‑‑How many occasions have I seen businesses try to operate on lock down weekends?
PN2061
Well does that happen? How often does that happen?‑‑‑It does happen to my certain knowledge. I don't really know how often. I don't know, I'm looking for the right words. I know it happens and I know it's not dreadfully uncommon but I couldn't tell you precisely how often it happens.
PN2062
In terms of the word that you perform involved advising employees on enterprise agreements and you were asked some questions about enterprise agreements and the industry calendar or the CFMEU calendar?‑‑‑Yes.
PN2063
How many enterprise agreements are you aware of negotiated with the CFMEU and the ACT that don't have the calendar attached?‑‑‑None.
PN2064
Mr Spence, are you aware of any circumstances where employers and employees have had a dispute with respect to this particular clause or provision of these arrangements?‑‑‑Sorry, can you clarify the question please?
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
PN2065
Well is there - in the ACT are there industrial disputes arising from the interpretation of either these award provisions or the lock down weekend calendar?‑‑‑Yes.
PN2066
Can you describe those?‑‑‑I've had members seek to terminate their EBA or have it varied in front of the Commission based on these because they are - they've found the lock down weekend in particular a big impost on their productivity, having many days where the site's closed to all work where it need not be closed, but for the lock down weekends.
PN2067
Thank you?‑‑‑It's been - it's, yes.
PN2068
DEPUTY PRESIDENT GOSTENCNIK: Mr Schmitke - - -
PN2069
THE WITNESS: I could probably actually sorry, one thing I should say in relation to that question. I've seen dispute go to the Commission, as I said, variation, termination, EBA application but more commonly I've seen it as an incentive to not do CFMEU EBAs.
PN2070
DEPUTY PRESIDENT GOSTENCNIK: Mr Schmitke, can - I don't want to unnecessarily cut you off but the lock down weekend issue is not a product of the award is it?
PN2071
MR SCHMITKE: Well, that is our - what we are saying is that the reference to nominated industry rostered day off is read to mean that prescribed by the CFMEU calendar, as opposed to the prescribed or other type of words regarding the - what would ordinarily be an RDO under the award.
PN2072
DEPUTY PRESIDENT GOSTENCNIK: So the variation that you seek as I - - -
PN2073
MR SCHMITKE: One.
PN2074
DEPUTY PRESIDENT GOSTENCNIK: One variation that you seek is that the reference in (ii) of 33.1(a) to industry rostered day off includes a reference to a lock down weekend?
PN2075
MR SCHMITKE: No, your Honour. The reference we seek is - or the change we seek is to replace the words "nominated industrial rostered day off" with "prescribed rostered day off".
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
PN2076
DEPUTY PRESIDENT GOSTENCNIK: To include - sorry. So you're saying that current provision is interpreted to include a lock down weekend.
PN2077
MR SCHMITKE: Yes.
PN2078
DEPUTY PRESIDENT GOSTENCNIK: Interpreted by whom?
PN2079
MR SCHMITKE: Sorry, not to include but is restricted to the lock down weekends.
PN2080
DEPUTY PRESIDENT GOSTENCNIK: Right.
PN2081
MR SCHMITKE: So in a practical sense if the employer is covered by the award and they look at that clause - subclause (ii), the agreement on alternate RDOs, there is an issue in the sector where it's read to mean only - you can only agree on these RDOs, and alternate - alternate arrangements for those RDOS, otherwise the provisions of subclause (vi) come into effect, where there's a reference to prescribed rostered days off. In that situation - - -
PN2082
VICE PRESIDENT HATCHER: But if you're not operating on the calendar why would you reach an agreement to substitute an RDO that they're not operating on anyway?
PN2083
MR SCHMITKE: Well, that's the point, your Honour. It's - - -
PN2084
VICE PRESIDENT HATCHER: And if you are on the calendar, wouldn't you want to be able to substitute it? Apart from the day that's not an RDO at all, even though the award says it is.
PN2085
MR SCHMITKE: The interpretation of this clause effectively means that you're on the calendar whether you're the under the award or you're not. That's subclause (ii).
PN2086
DEPUTY PRESIDENT GOSTENCNIK: The interpretation by whom?
PN2087
MR SCHMITKE: Sorry, the interpretation by members, by unions, by all good industry participants.
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
PN2088
DEPUTY PRESIDENT GOSTENCNIK: Right.
PN2089
DEPUTY PRESIDENT HAMILTON: And there's no definition of either nominated or prescribed RDO in the award. Is that right?
PN2090
MR SCHMITKE: I will take that on notice and double check that, your Honour, but there is - I can certainly indicate there's no definition of nominated industry rostered day off. I can indicate though that in the past under the predecessor instruments the phrase was "nominated industry rostered day" - - -
PN2091
DEPUTY PRESIDENT HAMILTON: The what?
PN2092
MR SCHMITKE: The phrase was "nominated industry rostered day off", and it did arise in circumstances where the parties - when I say the parties, I mean the major employee groups, the major union groups, the negotiated calendar and it would be agreed, and the award therefore reflected that.
PN2093
VICE PRESIDENT HATCHER: That interpretation could not possibly arise from those words used. I assume MBA tells its members that.
PN2094
MR SCHMITKE: No, well we don't tell them that, your Honour. We - that is the feedback - - -
PN2095
VICE PRESIDENT HATCHER: I mean the award says:
PN2096
The rostered day off will be taken every fourth Monday in each four week cycle.
PN2097
MR SCHMITKE: Yes.
PN2098
VICE PRESIDENT HATCHER: How could you possibly think that that would correspond to that calendar?
PN2099
MR SCHMITKE: This is - I'm referring here to 33.1(a)(ii) which is the agreement - - -
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
PN2100
VICE PRESIDENT HATCHER: I know that but that's about agreements to substitute days. But when the days are actually taken under the award is under 33.1(a)(i).
PN2101
MR SCHMITKE: Correct, and it's not necessarily that provision to which I'm making reference. I'm making reference to the agreement to have a substitute RDO and in that situation it's read to mean - - -
PN2102
VICE PRESIDENT HATCHER: But if you're taking your rostered days off under (i) why would you enter into an agreement to have a substitute day for a day that's not even an RDO?
PN2103
MR SCHMITKE: Because the - your Honour, if I can just step you through it. The first provision does talk about the various ways in which you can establish an RDO with respect to the cycle, and that involves the 20th day, four week cycle and so on and so forth. That's not - there's confusion caused by that so where the confusion arises in when you are seeking to change an RDO and in practice - - -
PN2104
VICE PRESIDENT HATCHER: So you've got your RDO set on the fourth Monday in each four week cycle and you want to change it, and what happens?
PN2105
MR SCHMITKE: It's basically people don't seek to change it. People think that the only way they can change it is in the nominated - is under this clause, and in practice - - -
PN2106
VICE PRESIDENT HATCHER: I see, so you're saying that if people aren't working on the calendar they think they've got no capacity to reach an agreement under (ii). Is that the point?
PN2107
MR SCHMITKE: Yes, and indeed extensively people actually don't work under the calendar. Yes, your Honour.
PN2108
DEPUTY PRESIDENT GOSTENCNIK: But how can a nominated industry RDO under the award be anything other than one of the days in (i)? Because that tells you when the days must be taken.
PN2109
MR SCHMITKE: It does, it does.
PN2110
DEPUTY PRESIDENT GOSTENCNIK: So it can't possibly be a reference - the industry RDO, if it means something other than those days can't mean those days.
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
PN2111
MR SCHMITKE: That may well be the case, your Honour. The mischief that we're seeking to fix here is simply to make it clear that if you have a four week cycle and if it does fall on a different day other than the nominated industry RDO, you're not prevented from substituting that. The difficulty is that what occurs in practice is the industry all observed the same RDO and part of the difficulty giving rise to that situation is the interpretation of the different - or the different types of references used within the awards; nominated, prescribed, agreed and so on and so forth, so part of our claim in this regard is a number of things but includes making the language consistent and then providing more options for the employees and employers to agree about substitution arrangements.
PN2112
DEPUTY PRESIDENT GOSTENCNIK: But the way I look at the calendar and I'm happy to be corrected but none of the industry RDOs which fall on a lock down weekend confirm with the requirements in (i). None of them.
PN2113
MR SCHMITKE: Yes, that is the case, your Honour, but again it's not necessarily the interpretation of these two clauses which we as parties are having or as practitioners are having discussions about. The effect of it on the industry is entirely different and that's the difficulty. So by clarifying these provisions what we are doing is to seek some consistency within the award and ensure that there is no, you know, room for error and interpretation so that everybody knows what we're talking about.
PN2114
VICE PRESIDENT HATCHER: Maybe we should ask Mr Maxwell. Mr Maxwell, in 33.1(a)(ii), what does "nominated industry rostered day off" mean so far as your organisation is concerned?
PN2115
MR MAXWELL: So far as our organisation is concerned it's the rostered days off identified in (a)(i).
PN2116
VICE PRESIDENT HATCHER: Right, so it sounds to me like that can be resolved by agreement, or alternatively simply deleting the words nominated industry.
PN2117
MR SCHMITKE: Yes, which is part of our application.
PN2118
VICE PRESIDENT HATCHER: Can we finish the re-examination?
PN2119
MR SCHMITKE: Just one additional question on one matter, Mr Spence, sorry. The clause 33.1(a)(vi) which says:
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
PN2120
Except where agreement has been reached in accordance with 33.1(a)(ii) and 33.1(a)(iii) the prescribed rostered day off or any substituted day may be worked where it is required by the employer and such work is necessary to allow employees to be employed productively and carry out out of hours maintenance, or in the case of unforeseen delays to a particular project, or a section of, or reasons arising from unforeseen or emergency circumstances on a project.
PN2121
?‑‑‑Yes.
PN2122
You were asked a question about those provisions and my understanding is that you were answer explained that there was a limitation on those circumstances described. Can you explain that further please to the Commission?‑‑‑My understanding of the limitations around that clause in the award are that the agreement can only be reached initially where first the employer must request it, it's not something where the employee can approach the employer or employees can approach the employer, and it has to also meet some extrinsic circumstances due to some unforeseen delay or other issue. Commonly rain delays.
PN2123
Thank you, Mr Spence.
VICE PRESIDENT HATCHER: Right, thank you for your evidence, Mr Spence. You're excused and you're free to go?‑‑‑May it please the Commission.
<THE WITNESS WITHDREW [11.34 AM]
PN2125
DEPUTY PRESIDENT GOSTENCNIK: Mr Schmitke, I note just in passing that your organisation's number doesn't appear to make it in the important phone numbers list in the calendar.
PN2126
MR SCHMITKE: A fact about which we are very proud, your Honour. In fact, our organisation doesn't feature at all.
PN2127
VICE PRESIDENT HATCHER: The ABCC's not there either. We might take a morning tea adjournment for 10 or 15 minutes and we'll line up the Perth witnesses while that's
PN2128
happening.
SHORT ADJOURNMENT [11.35 AM]
*** CAMERON BENEDICT SPENCE RXN MR SCHMITKE
RESUMED [11.56 AM]
PN2129
VICE PRESIDENT HATCHER: Mr Maxwell, are you calling Mr Pallot now?
PN2130
MS PAUL: Your Honour, may we ask for the other witnesses that aren't called to be waiting outside the court room in Perth?
PN2131
VICE PRESIDENT HATCHER: Why is that?
PN2132
MS PAUL: Just that some of the questions and some of the evidence that they're going to provide, or they have provided, will dovetail with each other and we would seek not to have and some of the questions we would be asking would be similar from one party to the other.
PN2133
VICE PRESIDENT HATCHER: All right, if you insist.
PN2134
MS PAUL: Thank you, your Honour.
PN2135
VICE PRESIDENT HATCHER: Any person who is going to give evidence in Perth, just step slightly outside of the door, until they're called to give evidence, and Mr Pallot can you come forward to the witness box please.
We will administer the affirmation.
<GRAHAM PALLOT, AFFIRMED [11.58 AM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [11.58 AM]
PN2137
VICE PRESIDENT HATCHER: Yes Mr Maxwell.
PN2138
MR MAXWELL: Thank you, your Honour. Mr Pallot, have you prepared a statement for these proceedings?‑‑‑Yes I did.
PN2139
Do you have a copy of the statement with you?‑‑‑I have brought a copy with me, yes.
PN2140
Is that statement 13 paragraphs long?‑‑‑I missed that, sorry.
*** GRAHAM PALLOT XN MR MAXWELL
PN2141
Is that statement 13 paragraphs long?‑‑‑Yes.
PN2142
Is that statement true and correct to the best of your knowledge?‑‑‑Yes.
PN2143
Are there any changes you wish to make to the statement?‑‑‑No, the statement's fine.
PN2144
Thank you. Your Honour, I seek to tender that statement.
VICE PRESIDENT HATCHER: The statement of Graham Pallot dated 7 December 2016 will be marked exhibit 35.
EXHIBIT #35 WITNESS STATEMENT OF GRAHAM PALLOT DATED 07/12/2016
PN2146
MR MAXWELL: Thank you, your Honour. Do you wish to cross Mr Schmitke?
PN2147
MR SCHMITKE: Thank you, your Honour. Mr Pallot, my name is Sean Schmitke from Master Builders and I thank you for giving evidence today and I just want to ask you a few questions about your statement. In paragraph 2, you talk about your statement concerning, primarily FIFO workers, is that right?‑‑‑Yes.
PN2148
The majority of that type of work takes place on major projects in WA in the north-west. Am I right to say that?‑‑‑For the last few years that would be correct. It's now moving into a lot more of the shut-down work. I wouldn't necessarily define those ones as major projects, but for the last few years most of them have been major projects, yes.
PN2149
What locations were these major projects located in?‑‑‑The three biggest projects that I think everyone's aware of, is Roy Hill, Wheatstone Project near Onslow, and Barrow Island would be the three biggest, by far.
PN2150
Roughly, what's the distance between those projects and Perth CBD?‑‑‑What was the difference, did you say?
*** GRAHAM PALLOT XN MR MAXWELL
PN2151
What is the distance I mean, are they 2000 Ks away, 500 kilometres away?‑‑‑They're all roughly phew, not sure about Ks, but they're about a two-and-a-half-hour flight and then depending on the project, anything up to a two-hour drive to get to.
PN2152
Just on paragraph 4 of your statement. You talk there about the mobile phones?‑‑‑Yes.
PN2153
That restriction is only while they're at work. It's not when they return home each night, is that right, or return back to the camp or a facility?‑‑‑No, the restriction happens when they're back in camp because in a lot of those projects, because there's so many people trying to use the mobile phones at camp, they just can't communicate. They just don't work. The communication that's put into those projects, doesn't allow for so many mobile phones. Depending on the project, you have to be with the right provider. They only arrange for one provider, so if you're not aware of that when you get up there, you might have an Optus card and you need a Telstra card. So what happens is there is huge problems with the mobile phones in their ability to use them and the standard of communications on these projects.
PN2154
Thank you, Mr Pallot but when you earlier in that sentence say that they're not able to have their phones with them at work, you're describing a situation where they have their mobile phones with them, but there's a problem is coverage. Is that a fair summary?‑‑‑When I say at work, they're not allowed to take them onto the worksite, but then when they get back into the accommodation or camp that you spoke about, obviously they can get access to their phones, yes.
PN2155
Thank you. Mr Pallot, when people return to their accommodation, are they allowed to leave their accommodation of a night time?‑‑‑Generally speaking, no. These camps are run like prison camps and they don't have a lot of freedom at all.
PN2156
There could be a lot of reasons why there might be some rules about leaving the camp of a night time, couldn't there?‑‑‑There can be reasons, but the reasons obviously from health and safety viewpoints, there should be good communication about where people are going and what they're doing. But having said that, people should be free, they're grown adults, they should be free once they submit plans and let employers know where they go. They should be able to have their freedom in their own time.
*** GRAHAM PALLOT XN MR MAXWELL
PN2157
There could be other rules as well, other than just the safety rules. There could be an emergency, that you need to know where people are. There could be some environmental rules that apply, things like that. You don't people wandering around, littering and things like that. Those types of considerations could be taken into consideration, do you agree with that?‑‑‑They're used as excuses to restrict workers, which is a bit mental issue for the workers up there. All these people are grown adults, they understand their responsibilities. They're more than capable of letting an employer know that they intend to travel in town and sticking to that town and the majority shouldn't be restricted because one person may err.
PN2158
In paragraphs 6 and 7 actually, mainly paragraph 6 of your statement, you talk about practices there. You say involving or encouraging people to pay for the provision of their own various facilities, and you are the Assistant Secretary of the Western Australian Branch of the CFMEU, so can you describe what action you've taken to resolve and address those problems you've described?‑‑‑Many hours of discussion where we can in the bargaining process throughout the agreements that are written up by the CCI and other parties in the nor-west. They bring this terminology called Point of Hire. What they try and do is get workers to agree, whether they live in - - -
PN2159
Sorry, Mr Pallot, if I can just briefly interrupt you, I think we're all concerned about time.
PN2160
VICE PRESIDENT HATCHER: No, I want to hear the answer to the question Mr Pallot?‑‑‑What's done is we come up with the terminology called Point of Hire and what they do, is they imply the workers that if their point of hire is outside Perth, Western Australia, that's the only place they'll be employing from. Quite often, we give examples of where the medicals and everything are arranged in Queensland, for example, but the point of hire that is signed off, is Perth. Everyone knows that their usual place or residence is definitely not Perth, and if that was a problem for those major projects, it's actually going through the roof now with the shutdown work. People are basically implied, well you know, if you're not in Perth, we find that the TAs, the labouring classifications come under even greater pressure in this area. Recently, there's an employer on the Wheatstone Project, Cape Australia, that made it very clear to workers on that project that if they were TAs and they applied for a project outside of Point of Hire, being Perth, they simply wouldn't get the job.
PN2161
MR SCHMITKE: What other action have you taken? Have you referred to the Fair Work Ombudsman; have you sought to prosecute the employers for breach of the instrument?‑‑‑The reality is that it's not necessarily a breach of the instrument, and what happens up there is we have a thing called ERMS and workers live in fear of ERMS, because it's quite clearly told to them that if you get the wrong ratings in the ERMS system, you'll be in that and never to be employed again category. So, the feedback that we get from the workers on the project is that they want us to make improvements within the award system to try and make sure that these rights are a lot clearer, so the union can prosecute employers with them feeling a lot safer and a lot securer about the outcomes they're going into.
*** GRAHAM PALLOT XN MR MAXWELL
PN2162
Mr Pallot, you're aware if a worker is, you know, suffers some retribution or harm as a result of making a complaint, that there's a provision under the Fair Work Act to seek redress for that. Are you aware of that?‑‑‑Yes, I'm definitely aware of that, but again, the workers don't go down that path because they have a feeling that if they came and testified within the Fair Work Commission, they simply won't work on those major earning projects again.
PN2163
Thank you. Just so I'm clear, you haven't brought a prosecution for a breach of an instrument, and you haven't contacted the Fair Work Ombudsman. Is that your evidence?‑‑‑That's correct.
PN2164
In relation to the rest of your statement, just in general, you cover two areas being or a number of areas, but they seem to centre around the camp facilities and difficulties associated with rights in and out of these projects. Just in relation to the camp facilities, isn't it right, that these camps have got recreational facilities?‑‑‑Yes, they do.
PN2165
Do they have tennis courts?‑‑‑Some of them do; some don't, yes. They have a fairly high level of recreation facilities, that is correct.
PN2166
Do they have a tavern?‑‑‑Sorry what I missed that?
PN2167
Sorry, Mr Pallot, the question was, do they have taverns? Is there a place where you can go and buy a beer or something like that?‑‑‑I'm sorry, I'm not just not getting it. Sorry, mate.
PN2168
Basically, is there like a pub arrangement within the camp itself?‑‑‑Yes, sorry, yes. Yes, they do have pub arrangements, but there is very strong restrictions on the amount of alcohol they can drink.
PN2169
They've got medical facilities?‑‑‑They have limited medical facilities.
PN2170
Do they have in some camps they've got cleaners, is that right?‑‑‑They have cleaners. They've gone from cleaning their rooms once a day, to sometimes once a week, as a cost cutting exercise.
PN2171
Do they have a football field? Do some of these camps have a football field?‑‑‑Yes.
PN2172
Do some of these camps have swimming pools?‑‑‑Yes.
*** GRAHAM PALLOT XN MR MAXWELL
PN2173
Do some of these camps have cricket nets?‑‑‑Yes.
PN2174
Do some of these camps have golf driving nets?‑‑‑Not that I'm aware of.
PN2175
Do some of these villages have a basketball court?‑‑‑Yes. There's no issue with the facilities. The issue is with the freedom of people to either access the local towns.
PN2176
Mr Pallot, that's not my question to you. I'm just interested as to your evidence regarding the type of facilities in these camps. In terms then of the flights I'll withdraw that question. Can I just ask you on the camps issue, is it the case that the facilities are the same in every single camp?‑‑‑No. The facilities on the three projects we've spoken about are very high. The facilities where workers do shut down work, are nothing like that.
PN2177
That's because the work that they're undertaking, the location in which they're undertaking that work, and the timing or the stage of a project in which work is undertaken, all of these things are variables, that have an impact on the type of facilities. Is that right?‑‑‑That may be one way of expressing it, but the thing that amazes me, and we'll see with the Wheatstone Project, I wouldn't mind betting that at the end of the day, they'll demob all those good facilities when they could have left them there for future workers and the facilities left behind will be of a much lower standard.
PN2178
But, you agree, there's no consistent standard of facility that's provided in all of these camps because it's hard to do so. Each project is different?‑‑‑No, it's not hard to cease. I don't agree to that at all.
PN2179
But each project is different, you'd agree to that?‑‑‑All the projects are different, yes.
PN2180
They're all located in different areas, aren't they?‑‑‑Correct.
PN2181
In terms of the issues regarding flights and travelling in and out of the sites, there's a raft of complaints or issues I should say that you say are relevant including connecting flights; flights from the eastern states to Perth that are have to go overnight. They're just complaints that everybody experiences with respect to flying, particularly in relation to Western Australia, is that right?‑‑‑No.
*** GRAHAM PALLOT XN MR MAXWELL
PN2182
It's not?‑‑‑It is the flights and the way they are arranged, are not arranged the way that people would arrange them if they were arranging them for their personal life.
PN2183
Mr Pallot, I might just ask on that point - - -
PN2184
MR MAXWELL: Sorry, your Honour, I hate to interject, but can Mr Pallot please be allowed to answer the questions?
PN2185
VICE PRESIDENT HATCHER: Had you finished that answer, Mr Pallot?‑‑‑Yes, sorry, what I was saying is the flights the first point is that with both the accommodation and flights, what's now happened is the actual employers have taken that out of their hand and given it to the clients of the projects, so there's no ability through dispute resolution or anything like that to raise these issues because the answer always is, well that's the way the client arranges it. The second stage of that is, that then what happens is that the flights are arranged to the cheapest flights possible. I'll never forget a member from South Australia explaining to me that he was put on a flight after his day's work. So, he got into Perth roughly 6.30 at night. He then had to wait until the midnight horrors because they were the cheapest flights. By then, flights to South Australia from Western Australia, you have to go via Melbourne or Sydney. So, he flew to one of those airports and then he had to wait there. He eventually got into South Australia about 8 o'clock in the morning and then he had a three-hour drive from that airport to his usual place of residence. In his personal life, there he would be no way he would organise the flights in that pattern.
PN2186
MR SCHMITKE: Mr Pallot, I was in Perth recently. I flew on a Friday morning from Sydney to Perth on a 6 am flight. I spent the day undertaking meetings at the direction of my employer. They set a flight for me to return back. The flight was at 11 o'clock at night.
PN2187
MR MAXWELL: Your Honour, I object to this questioning. Where is this relating to Mr Pallot's statement?
PN2188
VICE PRESIDENT HATCHER: It doesn't have to. Complete the question please.
*** GRAHAM PALLOT XN MR MAXWELL
PN2189
MR SCHMITKE: Actually, your Honour, I'll withdraw that, I won't pursue it. What I would just ask you Mr Pallot, is in paragraph 10, it describes the circumstances there, working until 3 pm and then many flights don't leave till 6 pm or later. Am I right to say that if you finish work at 3 pm, the normal practice is to go back to the camp, have a shower to change clothes, to get your stuff together and then get off to wherever you need to get on the plan. Is that right?‑‑‑Yes.
PN2190
So, three hours is about right. I certainly would like to get to an airport an hour ahead of time always, so three hours is enough time, is that right?‑‑‑Depending on the project. Yes, three hours is most probably enough time to get to the airport, yes.
PN2191
Thank you Mr Pallot. I don't have any further questions for you.
PN2192
VICE PRESIDENT HATCHER: Ms Paul, do you have any questions?
MS PAUL: Some questions, thank you, your Honour.
CROSS-EXAMINATION BY MS PAUL [12.16 PM]
PN2194
MS PAUL: Mr Pallot, I just want to confirm the evidence - - -
PN2195
VICE PRESIDENT HATCHER: Ms Paul, can you get a bit closer to the microphone, please.
PN2196
MS PAUL: Sorry, your Honour.
PN2197
VICE PRESIDENT HATCHER: That's better.
PN2198
MS PAUL: Mr Pallot, can you hear me?‑‑‑Yes, I can.
PN2199
I just want to confirm, the evidence you've provided in your statement is as a result of the discussions you've had with your members, is that correct?‑‑‑It would be to be quite frank, it would be discussion with my members; it would be discussions with members of other unions. When I visit projects or people ring in, I talk to them, no matter what. It's members and worker that have given us information about the frustrations of the current system.
PN2200
MS PAUL: Mr Pallot, have you ever worked as a FIFO or DIDO worker yourself?‑‑‑As a fly-in-out worker, no. I did do a period of time only, about six to eight months, for the union organising in the nor-west, and it's my only experience of any type of fly-in-fly-out.
*** GRAHAM PALLOT XXN MS PAUL
PN2201
Do you know the CFMEU is claiming in relation to the living away from home claim in this matter?‑‑‑Sorry, I missed that.
PN2202
Are you aware of what the union is claiming in relation to this matter, in terms of the living away from home?‑‑‑Yes.
PN2203
Mr Pallot, in terms of your position, do you negotiate agreements with companies on behalf of your members?‑‑‑Sorry, there's a bit of background noise, I missed that.
PN2204
Sorry, in relation to your position, do you negotiate agreements on behalf of the union and your members, with employers?‑‑‑Yes, I do.
PN2205
Have you negotiated any agreements since, say 2015?‑‑‑No. Not about fly-in-fly-out, I should clarify.
PN2206
The agreements that you've negotiated for fly-in-fly-out would be before 2015?‑‑‑Yes.
PN2207
Have you negotiated any other agreements that deal with distance work, from 2015?‑‑‑There might have been some crane agreements. I don't know if I'd use the word negotiated, I would be aware, and they're agreements that are currently going through the system where the employer have managed agreements and they've sent them into us, once they're a fait-accompli.
PN2208
But the union seeks to be covered by those agreements?‑‑‑Yes.
PN2209
In terms of agreements that would cover employees undertaking distant work sorry, let me rephrase that. In negotiating agreements, say from 2015, have those agreements contained distant work clauses?‑‑‑Most of the agreements, and I don't recall seeing one within particularly the nor-west region, wouldn't have clauses to do with some form of fly-in-fly-out distant wording.
PN2210
Sorry, they wouldn't, did you say?‑‑‑They would always have some type of wording on that subject.
PN2211
You mentioned earlier around shut-down work occurring?‑‑‑Yes.
*** GRAHAM PALLOT XXN MS PAUL
PN2212
You gave evidence and that shut-down work is in remote sites. Is that correct?‑‑‑The shut-down work I'm referring to, yes, it's in remote sites.
PN2213
In relation to that shut-down work, are there enterprise agreements that have been negotiated with the CFMEU that cover that work?‑‑‑Yes, there's agreements that we have signed on to. The negotiation process has never been completed because the employers have put out what I call baseline agreements and had them voted up before we finished any negotiations.
PN2214
But you did at least commence and go through a negotiation process?‑‑‑With some of them, yes.
PN2215
In terms of the agreements that either the CFMEU have been of the negotiation process, or negotiated, how many agreements, would you say cover work in relation to camps?‑‑‑For the ones we're talking about, all of them would have wording mainly not so much about the camps, they tend to be silent, but certainly about the fly-in-fly-out process.
PN2216
In terms of those agreements as well, am I correct to assume that they would have provisions regarding rest and recreation clauses?‑‑‑Yes.
PN2217
Would you accept that the CFMEU has negotiated agreements regarding rest and recreation of four weeks on and one week off in those remote areas?‑‑‑In the past we did, yes.
PN2218
Would you agree with me that there would be agreements that have been negotiated since 2015 that would have four weeks on and one week off?‑‑‑There would be agreements that have that as a result, but with all those agreements, we would have been pursuing better rosters than four weeks on and one week off.
PN2219
But the end result, in the negotiated outcome, is four weeks on, one week off, correct?‑‑‑No, the result is that it's negotiated. The result is that sometimes you end up with an impasse where the improvement isn't going to occur and eventually workers are, just out of exhaustion and frustration vote up the roster that's in front of them. It's one of the reasons that they are on to us about trying to improve the underlying award on these subjects.
PN2220
Mr Pallot, I'll ask you the question again. In terms of those agreements, that the CFMEU has negotiated, it has resulted in four week on, one week off rosters. Is that correct?‑‑‑There would be some, yes.
*** GRAHAM PALLOT XXN MS PAUL
PN2221
Would it be also correct that there would be agreements that the CFMEU have negotiated since 2015 that contain rest and recreation clauses that are similar to the current award terms?‑‑‑Not that I'm aware of.
PN2222
In the agreements that have been negotiated, again by the CFMEU - - -
PN2223
VICE PRESIDENT HATCHER: Ms Paul, what do you mean when you say the agreements have been negotiated by the CFMEU? Does that I mean, the CFMEU may have been a bargaining agent for negotiations, but are you conveying more than that fact?
PN2224
MS PAUL: I apologise, your Honour, no I'm just highlighting that the CFMEU would have been a bargaining agent. So, I'm happy to clarify that for the witness. In relation to agreements where the CFMEU has been a bargaining agent, do you recall that any of those agreement contain LAFHA allowances of $913.88 per week?‑‑‑I think that figure is out of a couple of the crane agreements.
PN2225
Sorry, did you say the cone agreements?‑‑‑Crane agreements. That sounds like a figure that was in a couple of the crane agreements, to me, off the top of my head.
PN2226
Do you recall when those crane agreements were negotiated?‑‑‑Those crane agreements with those figures were negotiated, I'm guessing a bit, but it would be six years ago and the renewal they may have been renewed since them, but they would have been figures that were based about six years ago.
PN2227
Is it also possible that there were agreements where the CFMEU were a bargaining agent, where the allowance rates were closer to the current award terms?‑‑‑There may be a final result in that area. Certainly they're not the claims that were on the table from the CFMEU and they're not what we sought to get into the agreements because the award is far too low.
PN2228
Would you agree with me that CFMEU, acting as a bargaining agent, has negotiated many agreements where they've got higher LAFHA allowances, but they've retained the rest and recreation provisions of the award?‑‑‑No, I'm not aware of us retaining the award rest and recreation clause.
PN2229
In your statement, you have provided evidence about workers having difficulties working longer rosters, or longer periods of time without getting the recreation leave. In terms of that evidence, that's really in relation to employees that are doing distant work on an ongoing basis for years, for example?‑‑‑Yes, if I understand your question, the answer is yes.
*** GRAHAM PALLOT XXN MS PAUL
PN2230
If I can take you then to paragraph 3 of your statement?‑‑‑Yes.
PN2231
I think you've given some evidence already in relation to the issues that have been faced by the FIFO workers. Were these situations in relation to remote work?‑‑‑Yes.
PN2232
In relation to the employees that you're talking about was their employment covered by enterprise agreements?‑‑‑Some would be, yes.
PN2233
Those enterprise agreements would have been where the CFMEU were a bargaining agent?‑‑‑Yes, well, if we weren't a bargaining agent, we wouldn't have been involved at all, so that would be correct, yes.
PN2234
In terms of those particular employees, that are covered by those agreements, have you brought any dispute before the Commission, or a claim on behalf of those employees for the issues that you've raised in paragraph 3?‑‑‑These are bargaining processes. You can't go to the Commission and dispute that. I think you might be misunderstanding exactly what's said there. What is being pointed out in that paragraph is that when a worker wants to go work away, they say to their family, I'm on a two on one roster. The family automatically assumes that all the travel time, of that roster is in the four weeks on or the three weeks on. What I was trying to point out and had many discussions, particularly with the CCI about this, it's a basic flaw in our system that we don't break travel time out because when they go to go away, they say to their family, I'm going to earn $4000 a week. I'm going to be away for this long and I'm going to be this long at home. So that's where a lot of the family disturbance and grief comes from when they start finding out that they're not going to be home for seven days or whatever the time is or 10 days. They find that they spend two or three days of that time just travelling to and from the project. So, I'm trying to highlight there, that in roster links the travel time and travelling to and from the projects is a very critical part of the roster links.
PN2235
Thank you Mr Pallot, I was actually referring to paragraph 3 of your statements, sorry if I didn't make that clear. Paragraph of your statement, you said it's about the roster length to travel to and from distant work and in particular, you use the words "In some situations, workers are required or strongly encouraged to falsify their usual place of residence in order to obtain a job."
*** GRAHAM PALLOT XXN MS PAUL
PN2236
In relation to that issue about workers required or strongly encouraged to falsify their usual place of residence in order to obtain a job, in terms of those workers, those workers' employment would be covered by an enterprise agreement?‑‑‑Some would and some wouldn't be in regards to that part of the statement.
PN2237
In relation to those that are, am I correct in saying the CFMEU would have been a bargaining agent?‑‑‑Yes, we may or may not have been. Because it depends on the agreement, but in some cases yes, and in some cases no.
PN2238
Let's just talk about the cases where they the CFMEU has been a bargaining agent, and for those employees that are covered by those agreements, have you brought a dispute before the Commission, or a claim on behalf of those employees in relation to this issue that they are required or strongly encouraged to falsify their usual place of residence?‑‑‑As I said earlier in my testimony, no, we have not.
PN2239
Thank you Mr Pallot, I have no further questions. No further questions, your Honour?‑‑‑Thank you.
PN2240
VICE PRESIDENT HATCHER: Any re-examination, Mr Maxwell?
MR MAXWELL: Yes, your Honour, just briefly.
RE-EXAMINATION BY MR MAXWELL [12.32 PM]
PN2242
MR MAXWELL: Mr Pallot, in regard to a question from Mr Schmitke, you referred to the ERM system. Can you just explain what that is please?‑‑‑The ERM system is a system where on all the major projects, and some others that there's a private identify that keeps records of people's files about their skills, their service, previous employers and that's passed on to future employers to do reference checks on those workers before they get a start. If the ERMs system doesn't tick a worker off, you don't get a start.
PN2243
VICE PRESIDENT HATCHER: Can you spell the word for me. What is it ERMs, is it?‑‑‑It's E R M S. I'm not really sure what the letters stand for.
*** GRAHAM PALLOT RXN MR MAXWELL
PN2244
MR MAXWELL: In response to another question, you refer to that being limited medical facilities on remote projects at constructions camps. Can you expand on what you mean by limited medical facilities?‑‑‑Yes, depends on the projects and the people that staff them. I guess the only way I can explain that in some detail is we now have issues because of the alleged limited medical facilities. If I've had a heart attack and then I want to return to the project, I get demobed and told to stay at home, because they don't have the facilities on the project to look after someone who may have a reoccurring heart attack.
PN2245
Do those limited medical facilities include mental health support?‑‑‑The mental health on those projects is definitely outsourced to someone else and the mental health assistance in my experience is at the lower end. There have been some improvements on projects in the last few years about increasing that, but one of the problems we find that because the mental health services are generally companies recommended by the employer, workers don't want to use it, because they're frightened that the employer will understand they've made those complaints and all of a sudden, they'll get demobilised again. There's a lot of fear up there in regards to all of a sudden, just not being a wanted employee if you use those types of facilities.
PN2246
Mr Pallot, you also referred to major projects being Roy Hill, Wheatstone, Barrow Island. How many employees are engaged on those projects?‑‑‑Look, on average each of those projects would have averaged somewhere between 6000 and 8500 workers.
PN2247
You were also asked in regard to the flight arrangements for workers. If we take the Barrow Island projects, how many flights a day would there be between say the local airport near Barrow Island and going to Perth?‑‑‑Yes, I didn't pick up that question, sorry.
PN2248
In regard to workers on Barrow Island, how many flights return workers to Perth per day from Barrow Island?‑‑‑Okay, yes, look, it's dependent on the project because obviously manning levels are changed, but in the times that I've visited the project, there was generally two to three flights going up in the morning and generally two or three coming back at night. Then there was limited flights which have now ceased from Karratha over to Barrow as well. Generally, there was one or two of them a day as well.
PN2249
I have no further questions of the witness, your Honour.
VICE PRESIDENT HATCHER: Right, thank you for your evidence Mr Pallot. You're excused.
<THE WITNESS WITHDREW [12.37 PM]
PN2251
VICE PRESIDENT HATCHER: How long will you be with the next witness?
PN2252
MR SCHMITKE: Well, the matters canvassed from the next witness' statement are very similar to those of this witness. I was intending to ask very similar questions again.
*** GRAHAM PALLOT RXN MR MAXWELL
PN2253
VICE PRESIDENT HATCHER: All right, well make a start then. Can you call the next witness? Mr Pallot, can you ask the next witness Mr Ferreira to come in please?
PN2254
MR PALLOT: Yes, thank you, your Honour.
PN2255
VICE PRESIDENT HATCHER: Mr Ferreira, can you please just stand and we'll administer the affirmation to you?
PN2256
MR FERREIRA: Pardon, what was that sorry?
VICE PRESIDENT HATCHER: Can I just ask you to stand while we administer the affirmation to you. Thank you.
<PAUL FERREIRA, AFFIRMED [12.38 PM]
EXAMINATION-IN-CHIEF BY MR MAXWELL [12.38 PM]
PN2258
VICE PRESIDENT HATCHER: Mr Maxwell.
PN2259
MR MAXWELL: Thank you, your Honour. Mr Ferreira, have you prepared a statement for these proceedings?‑‑‑Yes, I did.
PN2260
Do you have a copy of that statement with you?‑‑‑Yes.
PN2261
Is that statement 10 paragraphs long?‑‑‑It is two pages long, yes.
PN2262
Is that statement correct to the best of your knowledge?‑‑‑Yes, it is.
PN2263
Are there any changes you wish to make to that statement?‑‑‑No.
PN2264
Your Honour, I seek to tender the witness statement for Paul Ferreira.
VICE PRESIDENT HATCHER: The statement of Paul Ferreira dated 2 December 2016, will be marked exhibit 36. Mr Schmitke.
*** PAUL FERREIRA XN MR MAXWELL
EXHIBIT #36 WITNESS STATEMENT OF PAUL FERREIRA DATED 02/12/2016
PN2266
MR SCHMITKE: Thank you, your Honour. Mr Ferreira, thank you for making yourself available to answer some questions today. Just in paragraph 8 of your statement please?‑‑‑Yes.
PN2267
You make a reference to the Wheatstone Project?‑‑‑Yes.
PN2268
Now, is that near well, whereabouts is that project located?‑‑‑The Wheatstone Project is approximately about 18 Ks inland from Onslow town.
PN2269
There's a few mine sites up there I think. Is it Ashburton North? Is that one of them?‑‑‑Was what sorry?
PN2270
Was it Ashburton North, that's a mine site up there, is that right?‑‑‑I'm not too sure about that one. I know they've got a salt mine there and there's also like a power plant out there as well. I forgot the name of it.
PN2271
I understand there's a Chevron site called Ashburton North near Wheatstone?‑‑‑Unless we're talking about the same project, I've not heard of that one.
PN2272
Have you seen any of the accommodation facilities in construction camps in or around that site?‑‑‑Yes, over Wheatstone there I do visit. There was a specific visit where I'm actually inside the camp itself.
PN2273
Am I right to say that these camps contain - - -
PN2274
VICE PRESIDENT HATCHER: Are we talking about these camps or that camp?
PN2275
MR MAXWELL: That camp.
PN2276
VICE PRESIDENT HATCHER: Right.
PN2277
MR MAXWELL: Contains single bed ensuites?‑‑‑Yes, but there was a period of time that they were trying to they were utilising bunking as well, because they'd ramped up to about 7500 workers on site and they needed.
*** PAUL FERREIRA XN MR MAXWELL
PN2278
Do these facilities also contain ensuites?‑‑‑Yes.
PN2279
Air conditioning?‑‑‑Yes.
PN2280
Flat panel TVs?‑‑‑Telephone and TV did you say?
PN2281
Flat panel TVs?‑‑‑Yes.
PN2282
Internet?‑‑‑Limited. The amount of people there; it's a strain on services out there, from what I've been told by workers.
PN2283
Football fields?‑‑‑Yes.
PN2284
A swimming pool?‑‑‑Yes.
PN2285
Cricket nets?‑‑‑What was that, sorry?
PN2286
A cricket net?‑‑‑Yes, I think there is cricket nets out there, yes.
PN2287
Golf driving nets?‑‑‑Not too sure about the golf driving nets. I haven't seen them out there.
PN2288
Tennis courts?‑‑‑Yes.
PN2289
A 4300 seat dining facility?‑‑‑I'm not too sure on the numbers of the dining facilities, but I think there's four different dining facilities there.
PN2290
The accommodation itself, are they king size single beds? Have you seen one of those?‑‑‑I might have seen his king singles from what I've been getting told.
PN2291
There's air conditioning, writing desk and broadband access in the rooms. Is that right?‑‑‑Yes, you mentioned that before and like I said, the internet access is a constant complaint with workers on camp.
*** PAUL FERREIRA XN MR MAXWELL
PN2292
Do you know with that particular project, who built that camp?‑‑‑My understanding it was Decmil, but don't quote me. I understand Decmil was contracted to build that camp.
PN2293
Actually, if it's consistent with my recollection, they're a building and construction company, aren't they?‑‑‑Yes.
PN2294
They would employ your members?‑‑‑Yes.
PN2295
It's your members that build these facilities?‑‑‑Well, members and potential members.
PN2296
The paragraph 5 of your statement, you talk in that, it starts off by saying "with downward pressure on wages". What do you mean by that?‑‑‑Well, obviously, we say projects are I suppose the last of the big projects up the north-west there, and with that downturn in work, what I am seeing up the north-west, is contractors putting into place what we call these base-line agreements that barely meet, or just barely go above the BOOT test and then they offer conditions of employment which are just above that. In comparison to what they're earning at Wheatstone, those wages and conditions are vastly inferior.
PN2297
But they do pass the BOOT test, is that right?‑‑‑They're baseline agreements, barely, like a dollar an hour more than what the award is.
PN2298
My question is, do they pass the BOOT test?‑‑‑Yes.
PN2299
Thank you. I don't have any further questions, thank you.
PN2300
VICE PRESIDENT HATCHER: Ms Paul, do you have any questions?
MS PAUL: Yes, your Honour, and mine won't be too long.
CROSS-EXAMINATION BY MS PAUL [12.45 PM]
PN2302
MS PAUL: Mr Ferreira, is the evidence you've provided based on what you've been told by your members?‑‑‑Yes.
*** PAUL FERREIRA XXN MS PAUL
PN2303
In your statement, you say that your main issues are faced with FIFO workers, you talk about FIFO workers. So, when you're talking about the type of FIFO workers you've described in paragraph 3, for example, of your statement, are you talking about those types of employees that could be described as permanently FIFO workers. They move from project to project or they they're for years doing FIFO work. Is that the kind of employee you're describing?‑‑‑The vast majority of people on the Wheatstone project are continuous FIFO workers. They're either moved from Barrow Island to Wheatstone, yes.
PN2304
Can I take you to paragraph 10 of your statement, where you describe shut-down workers, or workers doing short stints. They would be a different category of workers, to the FIFO worker you just described, isn't it?‑‑‑Yes, totally different. Shut-down work is anything from a couple of days to a couple of weeks and then they go back to their original point of hire.
PN2305
If I take you back to the FIFO workers that we were talking about. Would it be correct to say that these workers are usually covered by an enterprise agreement? The terms of employment for these workers would usually be covered by an enterprise agreement?‑‑‑Sorry, can you just repeat that again?
PN2306
If we go back to the FIFO workers we were just talking about, in relation to these type of workers, their employment terms would be in accordance with an enterprise agreement, would that be correct?‑‑‑Yes, yes, like I suppose the Wheatstone project, their terms and conditions are set out by a basic framework agreement that covers everyone and the conditions are pretty much the well, they're exactly the same depending on classification.
PN2307
Those agreements have been entered into sorry, those agreements have been ones in which the CFMEU has acted as a bargaining agent. Would that be correct?‑‑‑I haven't been involved with that, but we're not a signatory to those agreements, there.
PN2308
That's fine.
PN2309
VICE PRESIDENT HATCHER: Sorry, Mr Ferreira, did you say you're not a signatory to Wheatstone agreements, for example?‑‑‑We haven't signed on to that Wheatstone agreement.
PN2310
The Wheatstone agreement was a greenfields agreement, wasn't it?‑‑‑Yes.
PN2311
Or was it AWU. I see?‑‑‑Yes.
*** PAUL FERREIRA XXN MS PAUL
PN2312
I understand, yes.
PN2313
MS PAUL: Now, isn't it correct you've identified that one of the main issues you have, is for FIFO workers is the 4:1 roster?‑‑‑Yes.
PN2314
Are you aware that the CFMEU negotiates agreements with a 4:1 roster, or acts as a bargaining agent in terms of negotiation of an agreement with a 4:1 roster?‑‑‑No. Again, I've only just been back on board the last eight months.
PN2315
That's fine. Your Honour, I have no further questions of this witness, thank you.
PN2316
VICE PRESIDENT HATCHER: Do you have any re-examination, Mr Maxwell?
PN2317
MR MAXWELL: No I don't, your Honour.
VICE PRESIDENT HATCHER: All right, thank you for your evidence Mr Ferreira. You're excused and you're free to go?‑‑‑Okay, thank you.
<THE WITNESS WITHDREW [12.48 PM]
PN2319
VICE PRESIDENT HATCHER: Mr Schmitke, Ms Paul, unless you tell me you're going to finish the next witness in five minutes, we'll have to adjourn for lunch.
PN2320
MR MAXWELL: Sorry, your Honour, I was thinking of delving into the Commission, the remaining witness, Mr Woodward, is a fly-in-fly-out worker who has only just returned to Perth from his projects at 10.30 last night and he's keen to get away as soon as possible.
PN2321
VICE PRESIDENT HATCHER: How long do you think you'll be with this witness? Mr Maxwell, you could have called this witness first, if you had that concern, but anyway.
PN2322
MR SCHMITKE: Your Honour, we will attempt to be quick, but yes.
PN2323
VICE PRESIDENT HATCHER: How long?
PN2324
MR SCHMITKE: Ten minutes.
*** PAUL FERREIRA XXN MS PAUL
PN2325
MS PAUL: Your Honour, I'm possibly around 10 minutes as well, again, depending on the answers, maximum.
PN2326
VICE PRESIDENT HATCHER: All right, well call Mr Woodward.
Can you stand up Mr Woodward, while we administer the affirmation.
<KRISTOPHER JAMES WOODWARD, AFFIRMED [12.50 PM]
EXAMINATION-IN-CHIEF BY VICE PRESIDENT HATCHER [12.50 PM]
PN2328
VICE PRESIDENT HATCHER: Mr Woodward, do you have a copy of your witness statement with you?‑‑‑I do. I've been given one yes. I haven't had a chance to read much of it, but I've done my best.
PN2329
Have you read it at some stage?‑‑‑I just had a flick through it now, correct, yes.
PN2330
Are you prepared to say that the statement is true and correct to the best of your knowledge and belief?‑‑‑Yes.
The witness statement of Kris Woodward dated 2 December 2016 will be marked exhibit 37.
EXHIBIT #37 WITNESS STATEMENT OF KRIS WOODWARD DATED 02/12/2016
PN2332
VICE PRESIDENT HATCHER: Mr Schmitke.
PN2333
MR SCHMITKE: Thank you, your Honour. Mr Woodward, my name is Sean Schmitke from Master Builders. Thanks for making yourself available to answer some questions. I appreciate that you must be tired and I'm very sympathetic to sleep deprived individuals.
PN2334
I just want to ask some questions about your statement, if I could please. The paragraph 3 of your statement. You've talked about the projects you've worked on, that have required you to live away from home. You have RGP5. What's RGP5?‑‑‑It's a Leightons joint venture with McMahons.
PN2335
Do you know what RGP stands for?‑‑‑I'm not too sure. It was a BHP rail line that we built. I was on the bridge crew there.
*** KRISTOPHER JAMES WOODWARD XN VICE PRESIDENT HATCHER
PN2336
Is that in the Pilbara region?‑‑‑Yes it is.
PN2337
How far is that away from Perth roughly?‑‑‑I believe it's about a two-hour flight. I couldn't tell you in kilometres, my geography is not very good, but yes, two hours on a plane. It was outside of Port Hedland, 145 camp and Turner camp and Wandjina camp. Near Karajini. I'm sorry a little bit nervous at the moment, if I'm a bit croaky.
PN2338
No, no, mate. I'm not asking anything tricky, I'm just wanting to clarify some parts of your statement. The Pluto project, is that Gap Ridge, the one you're referring to there?‑‑‑Correct.
PN2339
Then the Karara project, whereabouts is that one?‑‑‑That is the Karara project is inland from just trying to think of the small town, it will come to me in a minute. It's inland from Geraldton.
PN2340
So again, quite remote from Perth?‑‑‑Correct.
PN2341
Can you describe the facilities at RGP5 when you were there?‑‑‑
PN2342
VICE PRESIDENT HATCHER: You mean the camp facilities?
PN2343
MR SCHMITKE: Yes, sorry, the camp facilities?‑‑‑Just standard dongas and yes, it was a pretty small little intimate type of camp, the same as the others really.
PN2344
Do you know who constructed that camp?‑‑‑I'm not sure, but it wasn't far from the FMG camp that blew away actually. At the time, I remember driving past there and a few people pointed out that the basketball court was the only thing left standing and that's where that used to be. We drove past it on the way to work, but I don't know who constructed the camp though.
PN2345
In the camp, I'm just going to list a couple of facilities that might have been in the camp, and you can tell me whether or not you saw those facilities when you were there?‑‑‑Yes.
PN2346
Did you see a beer garden?‑‑‑No, I don't think there was a beer garden there.
*** KRISTOPHER JAMES WOODWARD XN VICE PRESIDENT HATCHER
PN2347
Was there any location where you could get a drink at like a pub or a tavern or something?‑‑‑There was a wet mess, yes.
PN2348
Wet mess, yes, and was there a gymnasium?‑‑‑Yes, there was.
PN2349
Were there communication rooms or facilities that you could access?‑‑‑Yes, I think so, I can't remember. Yes, I'm pretty sure. Basketball courts and stuff like that.
PN2350
Thank you, Mr Woodward. You live in Perth, is that right?‑‑‑That's correct, Inglewood.
PN2351
How far is it to the Margaret River, just roughly?‑‑‑About I think it's three hours. I think three or four hours, yes.
PN2352
Have you ever seen any construction projects in the Margaret River?‑‑‑No, I haven't, off the top of my head.
PN2353
That's okay. If you had a job in the Margaret River and you lived in Perth, do you think it's reasonable to go home each night after finishing the job?‑‑‑It would depend on the individual and their circumstances. I would prefer not to drive three hours in a car.
PN2354
Yes, so it's a drive to work in the morning for three hours and drive back for three hours, that's unreasonable, isn't it?‑‑‑Like I said it would depend on the individual, but for me I would prefer not to do it, yes.
PN2355
VICE PRESIDENT HATCHER: Based on Melbourne's current congestion, that happens frequently to some people.
PN2356
MR SCHMITKE: Mr Woodward, do you think that the Margaret River is a remote area?‑‑‑Probably I'm not sure, maybe, yes.
PN2357
It's not as though it's thousands of kilometres to get there via a two-hour flight. You can drive there is three hours, so there's a bit of a difference isn't there?‑‑‑Three hours is a long way to drive, especially after a full shift of work.
PN2358
If you were in the Margaret River, would you consider yourself to be in a remote part of Australia?‑‑‑I guess so, yes.
*** KRISTOPHER JAMES WOODWARD XN VICE PRESIDENT HATCHER
PN2359
Just in relation to paragraph 16 of your statement in front of you. If you could just have a look at that. Specifically, I'm interested in the part that goes over to the second page where you're talking about the Optus tower?‑‑‑Yes. Did you want me to elaborate?
PN2360
Well no, my question to you is that you say there that we were told that Chevron had refuse this, and that's in relation to fixing internet issues. Is that correct?‑‑‑That is correct.
PN2361
Did you ask, or are you aware of anyone in the union, the CFMEU, who have asked Chevron directly to fix it?‑‑‑No, I'm aware of the Kellogg's joint venture, telecommunications supervisor asking them directly.
PN2362
Why is it that Chevron well, when you were there, who was the were you employed by Chevron?‑‑‑No, I was employed by CB&I.
PN2363
Did you ask your employer to fix this issue?‑‑‑Yes, we did, several times. In fact, I believe we even got a petition organised and signed to help fix it.
PN2364
Mr Woodward, am I right to say, that when you're working on these type projects, the facilities the construction villages, those type of places, who arranges those? Is it your employer at the time that provided you the accommodation?‑‑‑Unfortunately no. It would be nice if it was that simple. It's usually a third party like ESS controlled by the client, like Chevron.
PN2365
It's not something that your employer had control over?‑‑‑I guess they have the chance to put forward scrutiny, if need be and partly organise it, but ultimately the accommodation comes under the control of the client.
PN2366
Thank you, Mr Woodward. They're all the questions I have.
PN2367
VICE PRESIDENT HATCHER: Thank you. Ms Paul.
MS PAUL: Thank you, your Honour.
CROSS-EXAMINATION BY MS PAUL [1.00 PM]
*** KRISTOPHER JAMES WOODWARD XXN MS PAUL
PN2369
MS PAUL: Mr Woodward, can I just pick up on the issue around the sorry, in terms of you've indicated the evidence that you've been a FIFO worker for about 10 years?‑‑‑yes.
PN2370
Whilst as a FIFO worker, have you lived in the same type of arrangement as you're currently living now, as in you're living in camp type arrangements?‑‑‑Yes.
PN2371
For those 10 years, the circumstances of those type of camps et cetera, have been fairly similar to what you're experiencing now, on Barrow Island?‑‑‑I'm not at Barrow Island anymore, I have been made redundant, but yes, they are.
PN2372
In terms of you've listed a couple of projects you're working on, so the RGP5 at paragraph 3 of your statement, who was your employer on that?‑‑‑Leightons.
PN2373
The Pluto one, who was your employer on that one?‑‑‑CB&I.
PN2374
Karara?‑‑‑AGC.
PN2375
And, Barrow Island?‑‑‑CB&I.
PN2376
You just said that you've been made redundant from Barrow Island. Are you still doing FIFO work?‑‑‑Is my current job relevant? I'd just rather talk about what's in the statement, to be honest your Honour - - -
PN2377
No, that's find, I'll withdraw the question. My next question then is, during the employment periods you've had with at the various projects you've talked about in paragraph 3, they've all been covered by enterprise agreements, haven't they?‑‑‑Correct.
PN2378
I just want to take you to paragraph 11 of your statement?‑‑‑Sure.
PN2379
VICE PRESIDENT HATCHER: Mr Woodward, before you go on. Giving your evidence, and bearing in mind that you affirmed the accuracy of your statement, do you want to change paragraph 1 of your statement?‑‑‑Yes, sorry, I don't know. That's yes, I don't know why that's there, sorry. Sure, it's Central Avenue.
*** KRISTOPHER JAMES WOODWARD XXN MS PAUL
PN2380
No, no, paragraph 1, which says you're currently employed as a rigger working on the Barrow Island project?‑‑‑Yes, sorry, your Honour. When I wrote this, I was. Things have happened quite quickly in the last three weeks. Sure, I'd like to change it.
PN2381
When did you get made redundant?‑‑‑Seven or eight weeks ago.
PN2382
Go on Ms Paul.
PN2383
MS PAUL: If I can take you to paragraph 11, the last sentence in paragraph 11 you say "a pay cut was traded for shorter rosters"?‑‑‑Yes.
PN2384
Could you just tell me what the pay cut was approximate pay cut?‑‑‑I believe at the time we were trying to get what we call an industry standard of five per cent pay increases into our EBA, but it was really difficult negotiating and we had to come to sort of an agreement where we lowered that in order to get a more family friendly roster into the agreement.
PN2385
What was the quantum of the pay cuts?‑‑‑I believe it went from five per cent yearly to five per cent across two years, or something like that. Yes, it was a reduction.
PN2386
VICE PRESIDENT HATCHER: So it wasn't an actual pay cut, it was a lower than claimed increase?‑‑‑Yes, sorry, I just see it as a pay cut, but yes. Yes, sorry, you are correct.
PN2387
MS PAUL: Thank you, your Honour. I've got no further questions.
PN2388
VICE PRESIDENT HATCHER: Anything arising Mr Maxwell?
PN2389
MR MAXWELL: No, your Honour.
VICE PRESIDENT HATCHER: All right, thank you very much Mr Woodward, you are now excused and free to go?‑‑‑Thanks very much, cheers.
<THE WITNESS WITHDREW [1.05 PM]
PN2391
VICE PRESIDENT HATCHER: We'll now adjourn for lunch and we'll resume at 2.15.
LUNCHEON ADJOURNMENT [1.05 PM]
*** KRISTOPHER JAMES WOODWARD XXN MS PAUL
RESUMED [2.18 PM]
PN2392
VICE PRESIDENT HATCHER: Mr Schmitke, Mr Glover is next.
PN2393
MR SCHMITKE: Yes, indeed, your Honour. Mr Glover is in Sydney.
PN2394
MR N NGUYEN: Your Honour, it's Mr Nguyen in Sydney. Your Honour, sorry, if I can just interrupt prior to proceedings beginning. It's Mr Nguyen in Sydney, if I can please just enter an appearance. It's Nguyen, initial N. I appear for the Australian Manufacturing Workers Union. Just in terms of logistics for the proceedings, if I can just advise the Commission that I'll be absent from the proceedings on Tuesday. I'll be in attendance at the common issue regarding plain language redrafting. There's a conference on the Tuesday of next week. The AMWU has an interest in all of the proceedings here today in this matter. However, our key interests in the all persons claim which is our claim and also the soil testing claim which is the AWU's claim. Thanks, your Honour.
PN2395
VICE PRESIDENT HATCHER: Thank you. Mr Schmitke.
PN2396
MR SCHMITKE: Thank you, your Honour. Mr Glover is in the room and if I could ask him to step forward in Sydney.
VICE PRESIDENT HATCHER: We are going to administer the oath in Sydney.
<PETER VIVIAN JAMES GLOVER, SWORN [2.19 PM]
EXAMINATION-IN-CHIEF BY MR SCHMITKE [2.19 PM]
PN2398
MR SCHMITKE: Mr Glover, just checking that you can hear me okay?‑‑‑Yes, I can, thank you.
PN2399
Mr Glover, have you prepared a statement in advance of these proceedings?‑‑‑Yes, I have.
PN2400
Do you have a copy of that statement with you?‑‑‑I do.
PN2401
Is that statement a statement of Peter Vivian James Glover, some 48 paragraphs long, dated 9 December 2016?‑‑‑That's correct.
*** PETER VIVIAN JAMES GLOVER XN MR SCHMITKE
PN2402
Thank you. I seek leave to have that tendered and marked as an exhibit.
VICE PRESIDENT HATCHER: The witness statement of Peter Vivian James Glover dated 9 December 2016 will be marked exhibit 38.
EXHIBIT #38 STATEMENT OF PETER VIVIAN JAMES GLOVER DATED 09/12/2016
PN2404
MR SCHMITKE: Thank you. Your Honour, I have no additional questions at this point.
PN2405
VICE PRESIDENT HATCHER: Mr Maxwell, is it?
MR MAXWELL: Yes, your Honour.
CROSS-EXAMINATION BY MR MAXWELL [2.21 PM]
PN2407
MR MAXWELL: Mr Glover, in paragraph 9, you refer to confusion about the provisions of the distant work living away from home clause. Do you see that?‑‑‑Yes, I do.
PN2408
Do you agree that the wording in the award should be change to make the entitlements clearer?‑‑‑I think that would be helpful, yes.
PN2409
Do you agree that the award should clearly differentiate between the options available under the award? That is provide accommodation and meals or provide an allowance for accommodation, meals or perhaps provide accommodation allowance clause?‑‑‑Yes.
PN2410
Do you agree that defining board and lodging would assist employers and employees?‑‑‑Yes, I do.
PN2411
If I can turn to paragraph 17 of your statement?‑‑‑Yes.
PN2412
You refer to the 50-kilometre radius for calculating the fares and travel patterns allowance?‑‑‑Yes.
PN2413
You say that all these awards set the majority of metropolitan and country radial areas as being 50 kilometres?‑‑‑Yes.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2414
Which awards are you referring to there?‑‑‑Well, in that historical context, I was referring to the old Builders Labourers Award and the old Tradesmen Award which was the Building and Construction - National Building Trades Construction Award.
PN2415
If I can turn to jog your memory in regard to the National Building Trades Construction Award, how were the radial areas for Sydney determined?‑‑‑Well, for Sydney, of course, it was the County of Cumberland. In fact, could I just say that if you would like me to amplify, in the sense that that was taken out of the award when the modern award was introduced because we were told we were no longer able to have a state differential. But I have to say that from a practical point of view, I think that when you're talking about Sydney, the County of Cumberland is a very useful way of describing the radius around Sydney, not just from an historical point of view, but also I think it's recognised, even the majority, in fact, I think all of the New South Wales CFMEU agreements retained the County of Cumberland which I think is a good thing.
PN2416
VICE PRESIDENT HATCHER: That excludes Emu Plains, doesn't it?‑‑‑It goes as far as the river, I think, at Penrith, yes.
PN2417
Yes, all right?‑‑‑Nepean River, I think it is.
PN2418
MR MAXWELL: But can you recall what the radial area was for South Australia - for Adelaide - under the National Building Trades Construction Award?‑‑‑Look, I can't be certain. I think it was 50 kilometres, but I couldn't be certain.
PN2419
Are you aware that it was 30 kilometres?‑‑‑No, I'm not.
PN2420
Do you recall what radial area was used in Tasmania?‑‑‑No, but I'd imagine it was probably something similar.
PN2421
Can you recall what the radial area was under the Building and Construction ACT Award?‑‑‑No, I can't.
PN2422
Finally, can you recall what it was under the Building and Construction Northern Territory Award?‑‑‑It would probably surprise you, but the answer is: no, I can't.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2423
If I put it to you that the radial area in South Australia under the National Building Trades Construction Award was 30 kilometres, the radial area in Tasmania was 30 kilometres, the radial area under the Building and Construction ACT Award was 30 kilometres and the radial area under the Building and Construction Northern Territory was 32 kilometres, then you would accept that the majority of metropolitan areas were not based on a 50-kilometre radius?‑‑‑In an historical perspective, I'd have to accept that, yes.
PN2424
In paragraph 18 of your statement, you refer to upgrades to many metropolitan and country roads since the older awards were made. Just to clarify, which awards are you referring to? Is it still the National Building Trades Construction Award 1975?‑‑‑Yes, yes, and the Builders Labourers Award 1978.
PN2425
You then say that the time it would have taken to drive to particular sites has been in many cases reduced as a result of upgrades to modern motorways?‑‑‑In many cases, that's true, I believe.
PN2426
Do you have any evidence to support that claim?‑‑‑Not that I could present or have presented in my statement, no.
PN2427
Are there any studies that you can identify?‑‑‑Not off the top of my head, no.
PN2428
You would agree that there have been substantial population increases in most capital cities since 1975?‑‑‑Yes, in most capital cities, but certainly the upgrade to roads are not confined to capital cities. So, to that extent, I think one could say outside of capital cities, there's been an improvement in the roads, but not necessarily an increase in the population to that extent.
PN2429
You would agree that there has been significant increase in car ownership levels since 1975?‑‑‑Yes, I'd agree with that.
PN2430
You would agree that there has been a significant increase in road congestion in major metropolitan areas since 1975?‑‑‑Yes, I'd agree with that.
PN2431
You would agree that increased congestion has led to longer travel times?‑‑‑Yes, yes, I would agree with that. I suffer that every day myself.
PN2432
Your Honour, I'd just like to hand Mr Glover a document that I filed last night. It's the Austroads Research Report. I think there's a copy in front of you, Mr Glover, of this document?‑‑‑Yes.
PN2433
VICE PRESIDENT HATCHER: This is the Congestion Reliability Review Summary?
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2434
MR MAXWELL: That's correct, your Honour.
PN2435
VICE PRESIDENT HATCHER: Yes, all right.
PN2436
MR MAXWELL: Mr Glover, I don't wish to take you very long through this agreement, but I just wanted to identify that it's a publication put out by Austroads. Have you heard of Austroads?‑‑‑I've heard of them, yes.
PN2437
You will see on page 2 that Austroads is governed by, in the middle column, that Austroads is governed by a board consisting of senior executive representatives from a range of main road departments and so forth?‑‑‑Yes, I see that, yes.
PN2438
You will see under the acknowledgments that: "We would like to acknowledge the assistance of Google in providing access to their maps and traffic data sets"?‑‑‑Yes, yes.
PN2439
If I can take you to page 15 of that report?‑‑‑Yes, I have that.
PN2440
You will see a graph there is titled, "Exhibit 6", and it says that time spent travelling to and from work has not changed significantly in Australia since the start of the 20th century?‑‑‑I see that, yes.
PN2441
Faced with this evidence, do you still say that travel times have reduced?‑‑‑I believe they are outside of the major capital cities, but not necessarily so within major capital cities.
PN2442
VICE PRESIDENT HATCHER: Why have they reduced outside of major capital cities?‑‑‑Well, I believe because the population hasn't grown significantly and there's also been upgrades to roads in those country areas.
PN2443
MR MAXWELL: Have you got an example of the - Mr Glover, have you got any concrete examples of where that has occurred?‑‑‑Well, only anecdotal, from my own travels and experience around New South Wales, in particular, and I'm thinking some of the larger regional areas around New South Wales, the Waggas, the Dubbos, the Armidales, the Tamworths, those sorts of things, where I've experienced upgrades to roads and whilst there has been an increase in the population certainly in those areas, those population increases haven't been so significant as to cause, I think, greater malaise when travelling in those areas as opposed to say for the major capital cities.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2444
But what percentage of construction occurs in those areas?‑‑‑Well, I think it varies. It's hard to say.
PN2445
If we took New South Wales, for example?‑‑‑Yes.
PN2446
What percentage of construction work would occur within the metropolitan areas of Sydney, Newcastle and Wollongong compared to the country areas you have just mentioned?‑‑‑Well, obviously, there is more activity in the major capital cities and in that area you just articulated in your question. But, you know, we have seen on occasions certain areas that have experienced construction growth and that growth may only go over perhaps a couple of years. But, you know, I'm thinking places like Port Macquarie, for example, where a few years ago there was quite an uptake of new construction in that area and then it's perhaps waned a little bit in the last couple of years.
PN2447
Would you agree that in general construction work or the increase in construction work is aligned with increase in population?‑‑‑Well, yes, because it's essentially a demand driven industry in that sense.
PN2448
You stated before that it's your understanding that the 50 kilometre radius came in with the modern award in 2010; is that correct?‑‑‑That's right, yes.
PN2449
Are you aware that the clause was based on one proposed by the MBA?‑‑‑Fifty kilometres? No, I'm not aware I must say, of the detail of that, no.
PN2450
If I can turn to paragraph 21 where you start to deal with shift work definitions?‑‑‑Yes.
PN2451
You refer to the October 2013 decision on the shift work decision?‑‑‑Yes.
PN2452
You say that the hours between 11 pm and 4.30 am were no longer covered in the definitions?‑‑‑Yes.
PN2453
This is incorrect, isn't it?‑‑‑Well, there's certainly a gap that exists now in the shift provisions that wasn't there prior to that decision. Essentially, there was no gap outside of where you had a morning, an afternoon, an early afternoon, a night shift, and there was no gap in the time, but now there is a gap.
PN2454
How long are shifts under the award?‑‑‑Well, they normally go for eight hours.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2455
You're aware that under the award, clause 34.1(a) defines a night shift as a shift commencing at or after 3 pm and before 11 pm?‑‑‑I think so.
PN2456
Are you aware of that?‑‑‑I believe so.
PN2457
If a shift started at 10.30 pm, when would it finish?‑‑‑Well, presumably an ordinary shift would finish eight hours later.
PN2458
That would be approximately 6.30 am?‑‑‑It'd be pretty close.
PN2459
Do you agree that the hours between 11 pm and 4.30 am are covered by that definition?‑‑‑That definition, yes.
PN2460
You're aware that there was no evidence before the Commission in the 2012 review of employees being required to start work between 11 pm and 4.30 am?‑‑‑No, I'm not aware of that, but in my experience, I can say that in discussions with members it arises less, I have to say, on building sites where the structure is being built, but certainly fitout work is often performed out of hours, if you like, out of ordinary hours and I do know that the change to the award did create some difficulties for some sectors of the industry.
PN2461
But you don't have any evidence of employees being required to start work between 11 pm and 4.30?‑‑‑Well, again, I can only relay conversations I've had with members who have said that they have contracts that do require them to start and finish within those periods from time to time.
PN2462
But that evidence is only anecdotal evidence?‑‑‑Well, it is in as much as that's all I can provide here today, other than to say that I have had first-hand conversations with those employers in the past.
PN2463
If I could take you to paragraph 32 which deals with the National Training Wage Award?‑‑‑Yes, yes.
PN2464
Sorry, I withdraw that. It refers to the National Training Wage?‑‑‑Yes.
PN2465
You say that the Commission wants to delete clause 28 of the on-site award. On what basis do you make that statement?‑‑‑That's advice, I have been provided by our national office.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2466
Who provided that advice?‑‑‑Well, I think it's perhaps been over a period of time. I can't recall now whether it was Mr Schmitke or his predecessor, Mr Calver.
PN2467
Has anyone in the MBA advised you that that's not the case?‑‑‑No, they haven't.
PN2468
If I can take you to paragraph 38 which deals with the provision of transport?‑‑‑Yes.
PN2469
You refer to employers who provide a vehicle free of charge to their employees. Do you see that?‑‑‑Yes, yes.
PN2470
The award does not regulate what workers can and can't do if they are provided with a vehicle, does it?‑‑‑No, it doesn't.
PN2471
You agree that the award only regulates what allowances are paid to employees who are provided with a vehicle and what travel time is paid to those employees?‑‑‑Yes.
PN2472
If I can take you to paragraph 44?‑‑‑Yes.
PN2473
You refer to X-rays for employees engaged in refractory brick work?‑‑‑Yes.
PN2474
Are you aware of the health risks of working with refractory materials?‑‑‑I'm broadly aware of it.
PN2475
On what basis do you say that payment for the cost of X-rays for employees engaged on refractory brick work is outdated?‑‑‑Well, I say that in respect of - that I'd have to say in our experience there is not a lot of refractory brick work being undertaken broadly across the industry. I don't doubt that it does occur, but it's perhaps not as broadly carried out as other aspects of building work in the industry. But having said that, I think that these matters are best regulated under health and safety legislation rather than the award trying to reach back which I think is in the past of trying to pay allowances for things that perhaps were rightly trying to be regulated by the award back in the 70s when the federal awards were first made. But my view is that there's been a lot of health and safety water, if I can say, flow under the bridge since then and I think these things are better regulated under the health and safety framework, if I can put it that way, as opposed to the award itself and to that extent I think the award is perhaps a bit dated.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2476
But does the work, health and safety legislation deal with the payment of allowances?‑‑‑No, it deals with the issue of minimisation of risk and I think that that's a better approach than paying - effectively paying an allowance to someone in order for them to be exposed to that risk.
PN2477
If you work with refractory materials, then isn't there an ongoing risk that you'll be exposed to materials that can cause harm to you?‑‑‑Yes, but I think it needs to be also seen that we can't isolate that scenario from the obligation that employers have to ensure to the best as practicable that employees are not exposed to unsafe work practices. So, what I'm saying, I suppose, is that I think it would be a better approach rather than just potentially exposing somebody to an unsafe situation and pay them an allowance, it would be far better not to pay the allowance and minimise the risk.
PN2478
But this allowance isn't dealing with the risk. It's dealing with the cost of an X-ray?‑‑‑Well, I think it's dealing with the consequence of a potential risk by requiring an X-ray. I think that's the point.
PN2479
But are you, therefore, saying that people should not use refractory materials?‑‑‑No, no, no, what I'm saying is that I think a better approach would be to ensure, as far as reasonably practicable, that that risk is minimised by the way that work is carried out through various PPE and other health and safety approaches that could be applied.
PN2480
VICE PRESIDENT HATCHER: Mr Glover, are you aware of any employee who was actually requested reimbursement under that clause?‑‑‑Not in recent years, your Honour, no.
PN2481
MR MAXWELL: Mr Glover, which members of the MBA New South Wales are refractory companies?‑‑‑Look, we've got over 8,000 members. I couldn't off the top of my head reel off any one in particular.
PN2482
Perhaps I can. What about Veolia refractories?‑‑‑Okay.
PN2483
Are they a member of the MBA New South Wales?‑‑‑I'm not certain. I'm not certain.
PN2484
And AGC Refractories, are they a member of the MBA of New South Wales?‑‑‑I'm not certain.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2485
I won't take it any further?‑‑‑Okay.
PN2486
If I can take you to clause 46 of your statement?‑‑‑Yes, yes.
PN2487
It deals with the coverage of joinery work. In clause 46, you refer to the definition of joinery work under the Joinery Award. Are you familiar with the definition?‑‑‑Broadly, yes.
PN2488
VICE PRESIDENT HATCHER: Clause 46?‑‑‑I have the award here.
PN2489
MR MAXWELL: Yes.
PN2490
VICE PRESIDENT HATCHER: What clause was that, Mr Maxwell?
PN2491
MR MAXWELL: Sorry, that paragraph 46, I was referring to in the statement.
PN2492
VICE PRESIDENT HATCHER: Paragraph 46.
PN2493
MR MAXWELL: Yes, I apologise. Mr Glover, you have in front of you a copy of the Joinery and Building Trades Award 2010?‑‑‑Yes, I do.
PN2494
If you can turn to clause 3?‑‑‑Yes.
PN2495
And, in particular, clause 31, and you will see on - sorry, in paragraph 3.1?‑‑‑Yes.
PN2496
You will see on page 6 of the award, at the top of the page there is a definition of joinery work?‑‑‑Yes, I have that.
PN2497
You accept that under that definition, joinery work is limited to work for a joinery shop?‑‑‑Yes, that would be the case, yes.
PN2498
That doesn't include an establishment on an on-site construction project?‑‑‑Correct, yes.
PN2499
If you can turn to clause 4: "Coverage"?‑‑‑Yes.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2500
If you read clause 4.1, you will see that this award covers employers throughout Australia and employees in the joinery and building trades and occupations who are covered by the classifications in this award. Do you see that?‑‑‑Yes, I have that.
PN2501
If you look at clause 4.8?‑‑‑Yes, yes.
PN2502
Do you accept that joinery and building trades and occupations are defined in the award?‑‑‑Yes, I do.
PN2503
And that under 4.8(a) that the reference to "joinery" is to joinery work?‑‑‑Yes, yes, yes, I see that.
PN2504
If you return to clause 4.1(a), under clause 4.1, there are a number of exclusions?‑‑‑Yes.
PN2505
You will see in (a) that the award doesn't cover an employee who is outside the scope of 4.8(a)?‑‑‑Yes.
PN2506
Unless such an employer employs an employee are covered by 4.8(b) and they're not covered by another modern award containing a classification which is more appropriate?‑‑‑Yes.
PN2507
You will see over in (d) that it doesn't cover employers of employees covered by the Building and Construction General On-Site Award?‑‑‑Yes, I see that, I see that.
PN2508
So, is it not clear that the on-site work is not covered by the joinery work?‑‑‑Well, not necessarily, in my view. Whilst I follow the logic of the questioning, 4.8(b), for example, in (iii) covers carpenter and in four covers painter, and - sorry, five - six, sorry, covers painter and, for example, eight, plasterer. Well, in my experience, it's not uncommon for those classifications to be engaged in a joining shop, but also it's not uncommon, in my experience for those classifications from time to time to be required to go to site to fit or fix those products, if you like, that have been made in the joinery shop.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2509
But you accept that under clause 3.1, the definition of joinery work doesn't include on-site construction?‑‑‑It doesn't, no. It doesn't, but, as I say, if one went back to the pre-modern award, of course, there was a recognition under the pre-modern Joinery Award, if I can refer to it as that, there was a requirement from time to time for these employees to go to site, but that recognition broadly seems to have been lost with the advent of the modern award.
PN2510
Mr Glover, if I can take you to the National Joinery and Building Trades Products Award 2002, is that the award you're referring to?‑‑‑I think that's the one.
PN2511
You should have in front of you clause 21 from that award?‑‑‑The mixed functions clause?
PN2512
Yes?‑‑‑Yes, I see that.
PN2513
You're aware of that clause?‑‑‑I recall that clause.
PN2514
You recall that clause. Can you just read to yourself clause 21.2.1?‑‑‑Certainly. Yes, I've read that, thank you.
PN2515
Would you agree that under that clause if a person worked on site, they were paid the rates, allowances and, where applicable, conditions of the National Building and Construction Industry Award 2000 as varied from time to time?‑‑‑Yes, I'd agree with that.
PN2516
Do you accept that the Building and Construction General On-Site Award is the successor award to the 2000 award?‑‑‑Yes, yes.
PN2517
Your Honour, I just need to tender that extract.
PN2518
VICE PRESIDENT HATCHER: The Austroads - what extract?
PN2519
MR MAXWELL: I'm sorry. Your Honour, can I tender the Austroads document.
VICE PRESIDENT HATCHER: All right, I'll start with that. The extract from the Austroads Congestion and Reliability Review Summary will be marked exhibit 39.
EXHIBIT #39 AUSTROADS CONGESTION AND RELIABILITY REVIEW SUMMARY
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2521
MR MAXWELL: Your Honour, to the extent that it's necessary, can we seek to have the Joinery and Building Trades Award 2010 marked as an exhibit?
PN2522
VICE PRESIDENT HATCHER: Yes, just hold on. What was the document again, Mr Maxwell?
PN2523
MR MAXWELL: It's the copy of the Joinery and Building Trades Award 2010.
PN2524
VICE PRESIDENT HATCHER: You don't need to tender that.
PN2525
MR MAXWELL: Can I have the clause 21 of the National Joinery and Building Trades Products Award 2002 tendered?
PN2526
VICE PRESIDENT HATCHER: All right. The extract of clause 24 of the Building and Construction General On-Site Award 2010 will be marked exhibit 40.
PN2527
MR MAXWELL: Sorry, your Honour, the document I was referring to was clause 21 from the National Joinery and Building Trades Products Award 2002.
PN2528
VICE PRESIDENT HATCHER: I will cancel that 40. I'm just trying to find this, Mr Maxwell. I'm not sure we have it.
PN2529
DEPUTY PRESIDENT GOSTENCNIK: Mr Maxwell, while we're looking for that document, can I ask you this, the extract from the Austroads Research Report, in particular the graph which is entitled, "Exhibit 6", what do you say that tells us?
PN2530
MR MAXWELL: Your Honour, that tells us that the time spent travelling to and from work has not changed significantly since the start of the 20th century. So, in other words, that since the National Building Trades Construction Award of 1975 up until the present time that travel times have not increased in the major capital cities.
PN2531
DEPUTY PRESIDENT GOSTENCNIK: But it also tell us that the average length of the trip has increased, so they're relative comparisons, are they not? For example, in 1900, unsurprisingly, it took someone over 60 minutes to travel two and a half kilometres.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2532
MR MAXWELL: Yes, yes, but if you look at the 1975, the graph tells us that the average trip length in kilometres was seven kilometres and the average travel time was approximately 65 minutes.
PN2533
DEPUTY PRESIDENT GOSTENCNIK: Nineteen which, sorry?
PN2534
MR MAXWELL: 1975.
PN2535
DEPUTY PRESIDENT GOSTENCNIK: 1975, yes.
PN2536
MR MAXWELL: Which was the award that Mr Glover referred to, the National Building Trades Construction Award 1975 and - - -
PN2537
DEPUTY PRESIDENT GOSTENCNIK: Yes. So, your point is that since 1975, both the average length travelled and the average time travelled have not changed significantly?
PN2538
MR MAXWELL: They have not changed significantly. If anything, they have increased.
PN2539
DEPUTY PRESIDENT GOSTENCNIK: In that period from 75?
PN2540
MR MAXWELL: Yes, that's right.
PN2541
DEPUTY PRESIDENT GOSTENCNIK: Mr Maxwell, one question I have about that time is you have two axes. You have minutes per day on one side, an average trip length in kilometres in the other, and the lines in between seem to refer to both. So, how does that work?
PN2542
MR MAXWELL: Your Honour, perhaps if I can explain it this way. I did provide a fully copy of the summary report to the Commission. The top line in the coloured version is marked in blue and under the table, that refers to the average time spent travelling.
PN2543
DEPUTY PRESIDENT GOSTENCNIK: I see.
PN2544
VICE PRESIDENT HATCHER: The top line you refer to the left-hand axis, the bottom line you refer to the right-hand axis.
*** PETER VIVIAN JAMES GLOVER XXN MR MAXWELL
PN2545
MR MAXWELL: That's correct.
PN2546
DEPUTY PRESIDENT GOSTENCNIK: I see.
VICE PRESIDENT HATCHER: Yes, clause 21 of the National Joinery and Building Trades Products Award 2002 will be marked exhibit 40.
EXHIBIT #40 NATIONAL JOINERY AND BUILDING TRADES PRODUCTS AWARD 2002
PN2548
MR MAXWELL: Thank you, your Honour. Your Honour, I have no further questions of the witness.
PN2549
VICE PRESIDENT HATCHER: Thank you. Any re-examination, Mr Schmitke?
PN2550
MR SCHMITKE: No.
VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Glover, you're excused. You're now free to go?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [2.52 PM]
PN2552
VICE PRESIDENT HATCHER: All right, so, Mr Crawford.
PN2553
MR CRAWFORD: Yes, your Honour. The first witness I'd like to call is Mr Muller, Geoff Muller.
VICE PRESIDENT HATCHER: Muller, all right.
<GEOFFREY LEE MULLER, AFFIRMED [2.53 PM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [2.53 PM]
PN2555
VICE PRESIDENT HATCHER: Mr Crawford.
PN2556
MR CRAWFORD: Thank you, your Honour.
*** GEOFFREY LEE MULLER XN MR CRAWFORD
PN2557
Mr Muller, have you provided a statement in these proceedings?‑‑‑Yes.
PN2558
Do you have a copy with you?‑‑‑I do.
PN2559
Did you sign that statement on 1 December 2016?‑‑‑I did.
PN2560
To the best of your knowledge, is the content of that statement true and accurate?‑‑‑Yes.
PN2561
I seek to tender the statement, your Honour.
VICE PRESIDENT HATCHER: Yes, the statement of Geoff Muller dated 1 December 2016 will be marked exhibit 41.
EXHIBIT #41 STATEMENT OF GEOFF MULLER DATED 01/12/2016
PN2563
MR CRAWFORD: Just one question, your Honour.
PN2564
Mr Muller, can you please confirm which sites you're currently working on for Coffey?‑‑‑Yes, I work on the Sydney Light Rail Project for ACCIONA, core drilling. I work on the M5 East Project testing concrete, shotcrete. I also work on the M4 widening doing core drilling. A few others as well.
PN2565
Thank you. Nothing further.
PN2566
VICE PRESIDENT HATCHER: Mr Muller, just so I understand that, you don't work on a single project at any given time. You are moving from one project to another, are you?‑‑‑Correct.
PN2567
How long might you spend on any given project at a time? A day or part of a day or week or what?‑‑‑Yes, well, it just depends on what they've got planned for that day. At the moment, I've been doing a fair bit of night work on the M4 core drilling, so I'll work from - I'll spend all night drilling, so, all day at that project. But during the days, there might be a Metro Mix concrete pour that comes up, so we'll go and test and then we'll be sent over for a trial test over at the M5 East which might take four or five hours. And then we could be sent to another M5 location as well. It just varies from day to day.
*** GEOFFREY LEE MULLER XN MR CRAWFORD
PN2568
You might work at two or three different projects or parts of the projects in a given day?‑‑‑Yes, well, I mean, anything up to, like, 15 projects all up might be the case, you know.
Yes, all right. Thank you. So, who wants to cross-examine this witness? Go ahead, Ms Hogg.
CROSS-EXAMINATION BY MS HOGG [2.56 PM]
PN2570
MS HOGG: Mr Muller, it's Ms Hogg in Melbourne. Can you hear me?‑‑‑Yes, I can.
PN2571
Excellent. Just wanted to clarify. It can be a bit funny on the video link sometimes. Now, I just want to ask you a few questions in relation to your statement. So, if I could take you to paragraph 7 of your statement to start with, now, in paragraph 7 of your statement, you state that you're not aware of any of your workmates in the concrete section having a Certificate III in Laboratory Skills or any other similar testing qualifications; is that correct?‑‑‑Yes, that's correct.
PN2572
How many of your workmates in the concrete section have you spoken to about this?‑‑‑Well, when you are - no one has actually ever said they've had Certificate IIIs or any certificates. I have never heard of anyone saying they've had a certificate. In my place of work, they just don't. They don't even say it.
PN2573
But you haven't specifically asked your workmates if they have a Certificate III?‑‑‑There'd be no need. If anyone was to have a Certificate III, I'd know about it. It's a small - - -
PN2574
How? Could I ask how would you know?‑‑‑Well, we talk to each other. We talk to each other about what we're doing, about what projects we're on. If anyone was doing a course, then they wouldn't be out doing the work and you'd know about it. If anyone goes off to do an induction, we find out, you know. If anyone's out of action for a day or two, we ask where they've been.
PN2575
The reality is that your workmates could have had a Certificate III before they came to work for Coffey; isn't that correct?‑‑‑If they had, then they'd probably be in the office. They wouldn't probably be out doing the work.
*** GEOFFREY LEE MULLER XXN MS HOGG
PN2576
The fact remains, though, at the end of the day, you haven't specifically asked the question of your workmates if they have a Certificate III. That's correct, isn't it? You haven't asked them?‑‑‑No, I haven't.
PN2577
It's just sort of general know-how and working around people that you say you have this knowledge that no one has got a Certificate III; is that correct?‑‑‑Yes, well, any time anyone gets a licence to do anything or learns how to do something else, you know, we talk to each other about it. Like, I want to get a forklift licence, but that hasn't happened yet, but know some of the other people have.
PN2578
None of your workmates are here giving evidence today that they don't have these certificates or qualifications?‑‑‑No.
PN2579
VICE PRESIDENT HATCHER: Are you going to put it to the witness that he has actually wrong about this or this is just a case of whether he knows or not?
PN2580
MS HOGG: I'm getting to that.
PN2581
VICE PRESIDENT HATCHER: Right.
PN2582
MS HOGG: Sorry.
PN2583
So, Mr Muller, I put it to you that you're actually incorrect that your colleagues don't have Certificate IIIs and other qualifications because you simply don't know?‑‑‑Can I just ask what is a Certificate III?
PN2584
It's in your statement, so I'd expect you to know what it is?‑‑‑Well, I'm not aware of any of my workmates in the concrete section have a Certificate III. I don't even know what a Certificate III is.
PN2585
Okay, thank you.
PN2586
VICE PRESIDENT HATCHER: Just to be clear, you are putting to the witness that, in fact, some or all of them do have the Certificate III?
PN2587
MS HOGG: I'm putting it to him that they don't have the certificate.
PN2588
VICE PRESIDENT HATCHER: Do you know that? I am putting the same question to you that you have just put to this witness. I'm putting those questions to you.
*** GEOFFREY LEE MULLER XXN MS HOGG
PN2589
MS HOGG: It's not within my knowledge, but this witness is asserting that it is within your knowledge.
PN2590
VICE PRESIDENT HATCHER: All he is asserting is he is not aware.
PN2591
MS HOGG: Okay.
PN2592
VICE PRESIDENT HATCHER: He is not wrong about that, is he? He is not aware.
PN2593
MS HOGG: He is not aware, no.
PN2594
VICE PRESIDENT HATCHER: Yes.
PN2595
MS HOGG: I think that's the answer. He is not aware.
PN2596
VICE PRESIDENT HATCHER: That's what he said.
PN2597
MS HOGG: Now, Mr Muller, you work in the concrete section; is that correct?‑‑‑That's correct.
PN2598
A lot of the evidence that you're giving here today, is that relevant to that section of the business that you work in which is the concrete section?‑‑‑Correct, yes.
PN2599
Correct, okay. And is it correct that whilst there is a concrete section, Coffey does have other testing divisions?‑‑‑Yes, soil testing and there's a specialised testing that it's moved into, into the office (indistinct) as well.
PN2600
You don't work in those other sections, though. You're predominantly in the concrete testing?‑‑‑I have done some investigation work for the soil section and some of my coring work on some of the projects is for the soil section. The ACCIONA Sydney Light Rail Project is taken control of by our soil section and I go out and do the concrete coring for them.
PN2601
If I can take you to paragraph 10 of your statement, in paragraph 10 you state that: "We normally get a phone call the night before or the day before telling us where to start from the next day and the type of work that we have to do."
*** GEOFFREY LEE MULLER XXN MS HOGG
PN2602
VICE PRESIDENT HATCHER: What paragraph is that?
PN2603
MS HOGG: Paragraph 10, your Honour?‑‑‑Yes, I think it is 12 or 10. No, it's ten.
PN2604
Sorry, sorry, no, it is 12. My apologies?‑‑‑Yes, 12, yes.
PN2605
My apologies, it is paragraph 12?‑‑‑Yes.
PN2606
Could I clarify, Mr Muller, when you say "we", are you actually referring to your experience with how the work is allocated?‑‑‑That'd be pretty much everybody gets the phone calls or gets told where they're working at. Sometimes if you're actually been dropping off at the end of the day, there'll be a group of testers hanging around the allocator's desk and getting told where they'll be working the next day. The people that aren't there get a phone call or a text message and that goes in the diary as a tick that the testers have been told or if they've only been texted, then that will be written down as well.
PN2607
If I move on to paragraph 17 of your statement you talk about spending 98 per cent of your time on construction sites; is that correct?‑‑‑Correct, yes.
PN2608
I put it to you that you actually spend a smaller portion of your time on construction sites?‑‑‑Well, all my work is done on construction sites. I don't do any of the lab work. I come back to the lab just to drop off tests and concrete and mark it up and put it into water, but I would think it's close to 100 per cent of my time is on construction sites or driving to and from.
PN2609
There would be a portion of your time spent driving?‑‑‑Yes, a lot of my time is spent driving.
PN2610
Another portion of your time, albeit potentially smaller, where you go to the lab and might do some work there?‑‑‑If it rains.
PN2611
That's another circumstance in which you might find yourself working in a lab?‑‑‑Correct.
PN2612
Weather conditions might determine whether you're going to go on site or not?‑‑‑Yes, but even in the lab, we'd just be cleaning cylinders that get used out on the construction sites. I mean, we wouldn't be doing much else.
*** GEOFFREY LEE MULLER XXN MS HOGG
PN2613
Isn't it the case, though, that the amount of time that you're going to spend on a site is really going to be dependent on if there is a lab on site?‑‑‑Sorry, lab on site?
PN2614
My understanding with the testing work is that in not in every project a lab will be set up on site. So, isn't there going to be some degree of variation between the amount of time you're going to spend on site?‑‑‑The only sites where there might be a testing facility on site would be the projects and I'm not in Coffey projects, so all the sites, there is no lab set up.
PN2615
There is no testing facilities on the construction site?‑‑‑No, the only - the only test that might be carried out on construction sites are tests that need to be carried out there, like with the - like with the fresh material.
PN2616
Otherwise, would it involve the collection of samples from the construction site and delivering those back to the laboratories?‑‑‑We do the tests on site, so we do a slump, so we fill up a cone and lift it up and see how much it drops. We fill up some cylinders maybe some beams or I do coring and then the next day they get picked up, the cylinders, and dropped back to the lab for curing.
PN2617
If I can take you to paragraph 18 of your statement, in that particular paragraph, you estimate that employees in the concrete section spend at least 95 per cent of their time on construction sites; is that correct?‑‑‑That's correct.
PN2618
If I just jump back, in paragraph 11 of your statement, you state that you mostly work on your own; is that correct?‑‑‑That's correct.
PN2619
I put it to you that you could not possibly know what your other colleagues are doing for 95 per cent of the time if you were mostly working alone?‑‑‑I mean, we don't see each other sometimes for a few days or a week. You might not see another tester that you work with for a couple of weeks, so you find out where they've been, if they've been away or if they've been job sites somewhere. So, you'd talk. That's how I come to my conclusion.
PN2620
Just to clarify, none of your other colleagues from the concrete section are giving evidence today, are they?‑‑‑That's correct.
PN2621
Thank you. No more questions.
PN2622
VICE PRESIDENT HATCHER: Any re-examination, Mr Crawford?
*** GEOFFREY LEE MULLER XXN MS HOGG
PN2623
MR CRAWFORD: No, thank you, your Honour.
VICE PRESIDENT HATCHER: All right, thank you for your evidence, Mr Muller, you're excused. You're now free to go?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [3.07 PM]
PN2625
VICE PRESIDENT HATCHER: So, who is next, Mr Crawford?
PN2626
MR CRAWFORD: Tony Callinan, your Honour.
VICE PRESIDENT HATCHER: All right.
<ANTHONY CALLINAN, AFFIRMED [3.08 PM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [3.08 PM]
PN2628
VICE PRESIDENT HATCHER: Mr Crawford.
PN2629
MR CRAWFORD: Thank you, your Honour.
PN2630
Mr Callinan, have you provided a statement in these proceedings?‑‑‑Yes, I have.
PN2631
Do you have a copy with you?‑‑‑Yes.
PN2632
Did you sign that statement on 30 November 2016?‑‑‑Yes.
PN2633
To the best of your knowledge, is the content of that statement true and accurate?‑‑‑Yes, it is.
PN2634
Thank you. Nothing further, your Honour.
VICE PRESIDENT HATCHER: Yes, the statement of Anthony Callinan, dated 30 November 2016, which Mr Crawford tenders, will be marked exhibit 42.
EXHIBIT #42 STATEMENT OF ANTHONY CALLINAN DATED 30/11/2016
*** ANTHONY CALLINAN XN MR CRAWFORD
PN2636
VICE PRESIDENT HATCHER: Ms Hogg.
MS HOGG: Thank you.
CROSS-EXAMINATION BY MS HOGG [3.09 PM]
PN2638
MS HOGG: Good afternoon, Mr Callinan, my name is Ms Hogg and I'll be cross-examining you this afternoon. Are you able to hear me clearly?‑‑‑Yes, I am.
PN2639
Excellent. Mr Callinan, could I take you to paragraph 5 of your statement. In paragraph 5, you give evidence that you first encountered Coffey back in 2007 and that was on the Coopernook project; is that correct?‑‑‑Coopernook to Herons Creek, yes, on the mid-North Coast of New South Wales.
PN2640
This was not long after you had started with the AWU?‑‑‑Yes, that's correct.
PN2641
What was your position at that point in time?‑‑‑Construction organiser for the AWU in Newcastle, Central Coast and Northern Regions Branch.
PN2642
In that role, you would have been responsible for a large number of members over a broad area?‑‑‑Yes, that project was - well, Coopernook to Herons Creek is Johns River on the mid-North Coast right from there back down to Newcastle and the Hunter region, yes, over a large area.
PN2643
Would it be fair to say that the members who were on that project, they weren't the only members that you were looking after at that point in time?‑‑‑That's correct, I, yes, had many members.
PN2644
You would agree then that you did not spend every day at the Coopernook Project watching the members and, indeed, any employee of Coffey performing their testing duties?‑‑‑Not every day, no.
PN2645
Notwithstanding the fact that you may have been on site - sorry, I withdraw that. In your statement - sorry, I'm just trying to find where it is. In paragraph 6 of your statement you state that there was a temporary laboratory adjacent to the work site?‑‑‑Yes, that's correct, adjacent to the Thiess workshop actually.
*** ANTHONY CALLINAN XXN MS HOGG
PN2646
The employees operated out of that work site for the duration of the project?‑‑‑Yes, that's right. I use the term "temporary laboratory" there. It's more adequately described as a tin shed, to be honest with you. I think "laboratory" conjures up images of people in white dust coats doing technical tests with beakers and microscopes rather than men wearing high visibility clothing in a tin shed playing with buckets of dirt.
PN2647
I put it to you that you couldn't know if all the testing was done on site for that project because you weren't there every day to see the day to day running of the operation?‑‑‑No, I don't agree with that. All the testing was done on that site. The closest other laboratory was in Port Macquarie, approximately and hour and a half's drive away and I know for a fact that all of the testing for that job was done on that project by those men in that shed.
PN2648
How do you know that?‑‑‑Because I consulted with my members on that site regularly when I was there and I know that the work is done on the site. It wasn't conducted off site.
PN2649
But you haven't called any of those members here today to give evidence?‑‑‑No, I haven't.
PN2650
VICE PRESIDENT HATCHER: Do you actually have instructions whether this is right or wrong?
PN2651
MS HOGG: No.
PN2652
VICE PRESIDENT HATCHER: Are you putting to the witness that what he says is wrong?
PN2653
MS HOGG: I am enquiring whether it is incorrect, yes.
PN2654
VICE PRESIDENT HATCHER: No, but you don't actually have instructions to put to him that this is, in fact, incorrect?
PN2655
MS HOGG: No.
PN2656
VICE PRESIDENT HATCHER: Thank you.
PN2657
MS HOGG: In paragraph 7 of your statement, if I can take you there, you refer to the ECLA Award, if I can call it the ECLA Award as a short?‑‑‑Yes, that's what I refer to it as, yes.
*** ANTHONY CALLINAN XXN MS HOGG
PN2658
You mention that Coffey was still applying the ECLA Award in 2007?‑‑‑That's correct.
PN2659
I put it to you that the reason that Coffey would have been applying the ECLA Award is because they were a respondent to the ECLA Award; is that correct?‑‑‑As was the - yes, as was the AWU.
PN2660
I put it to you that at the time the ECLA Award was in operation, it only applied to those employees who were named in the award as respondents?‑‑‑That's my understanding, yes. It was an extensive list, though.
PN2661
Thank you. If I can take you to paragraphs 11 and 12 of your statement?‑‑‑Yes.
PN2662
In paragraphs 11 and 12, you give evidence that nearly all of the Coffey employees who worked on the Hunter Expressway Alliance Project, they worked on site and they carry out tests on site and not at the Warabrook laboratory; is that correct?‑‑‑Yes, that is 100 per cent correct. I can give you details of how I know that is correct, if you'd like.
PN2663
Yes, thank you?‑‑‑At the time I was conducting a recruitment campaign for the AWU and I was visiting both sites at Warabrook and the Hunter Expressway as well as the Leighton's project on the Kempsey bypass with Mark Hughes. We were extensively mapping out potential members of the union that worked for that company and were trying to cross-reference employees that knew each other to develop a communication network and none of them knew each other.
PN2664
If I could just take you down, paragraph 14 onwards in your statement, you discuss that the AWU commenced negotiations with Coffey in about 2011 for an enterprise agreement; is that correct?‑‑‑Yes, that was after we'd started to try and - that on the back of that recruitment campaign I was just referring to previously, we'd written to the company and asked them to negotiate an agreement because we had signed up members on a number of those construction sites.
PN2665
A majority of employees, there was an agreement reached, an enterprise agreement was reached that a majority of employees voted to approve the agreement?‑‑‑Yes, we initially sought an agreement to cover our members at the Leighton's Kempsey Bypass Project and the company subsequently commenced negotiations for a national agreement and it was eventually voted up by a majority of employees across Australia.
*** ANTHONY CALLINAN XXN MS HOGG
PN2666
When it came time for the approval of the enterprise agreement, the AWU opposed this?‑‑‑Yes, we did.
PN2667
That was based on your belief that the correct reference instrument for the BOOT test was the Building and Construction General On-site Award and not the Manufacturing and Associated Industries Award?‑‑‑Yes, that was one of the reasons. I put that position to the company a number of times right from the beginning of negotiations as all our members were solely employed on construction projects that we were representing.
PN2668
The Commission rejected that argument; is that correct?‑‑‑Yes, that's correct.
PN2669
That matter was appealed and later upheld; is that correct?‑‑‑Yes, it was.
PN2670
Do you agree that in the absence of the Coffey Agreement in operation, testing employees would be covered by the Manufacturing Award?
PN2671
VICE PRESIDENT HATCHER: Sorry, Ms Hogg, just to be clear, when you say it was upheld, do you say that the decision was upheld or the appeal was upheld?
PN2672
MS HOGG: Yes, the decision at first instance was upheld.
PN2673
VICE PRESIDENT HATCHER: So, the appeal was dismissed.
PN2674
MS HOGG: The appeal was dismissed, that's correct.
PN2675
VICE PRESIDENT HATCHER: Thank you.
PN2676
MS HOGG: Do you agree that in the absence of the Coffey Agreement being in operation, testing employees would be covered by the Manufacturing Award?‑‑‑No, I wouldn't and I argued that point at the time prior to the agreement because the members I represented at that time and still to this time only perform work on construction sites. So, you know, I had a number of disputes with Coffeys during the Hunter Expressway Agreement prior to the agreement and one that I remember vividly was in relation to the inclement weather provisions of the on-site award and the company applied those provisions and relieved the employees from duty when there was no productive work to do during periods of inclement weather. There are no such provisions in the Manufacturing Award.
*** ANTHONY CALLINAN XXN MS HOGG
PN2677
If the Manufacturing Award was to apply, do you accept that the Manufacturing Award sets out minimum terms and conditions of employment for the people who are covered by that award?
PN2678
MR CRAWFORD: Objection. This seems to be a test of Mr Callinan's legal knowledge as opposed to any cross-examination of the content of his witness statement.
PN2679
VICE PRESIDENT HATCHER: I think we can all take it as a given that the Manufacturing Award sets minimum terms and conditions by those who it covers, can't we? We don't need the witness to tell us that.
PN2680
MR CRAWFORD: Yes, I accept it.
PN2681
MS HOGG: Thank you.
PN2682
Just in relation to paragraph 21 of your statement, in paragraph 21, you give some evidence that employees who work in Coffey's permanent labs do testing work solely for the civil and construction industry; is that correct?‑‑‑Yes, that's correct.
PN2683
You also state that some jobs do not warrant setting up an on site workshop; is that correct?‑‑‑Yes that's correct.
PN2684
Then I'd put it to you that not all testing work for Coffey is done on construction sites. Would you agree with that?‑‑‑No, I wouldn't agree with that. The sampling - so, in my statement there, I'm saying that the testing is done on construction sites for construction work. For example, you wouldn't conduct a test on sand that was going into a child's sandpit to play in. You wouldn't conduct tests on soil that is being placed into a garden or something like that. You only test the compaction of soil, sand and concrete being used in heavy construction. For example, as is contained elsewhere in my statement, you don't even usually test concrete other than at the batch plan for driveway, slabs, footpaths. You know, the testing they do is for heavy construction industry projects.
PN2685
Yes, but my question is, if a lab - in your evidence you're saying that some jobs don't warrant a lab being set up on site. So, if that's not the case, wouldn't some samples be going to external labs for testing?‑‑‑The labs on site are set up when there is an extremely large amount of construction work to be done, for example, a four or six-lane freeway that is 15 kilometres long. You wouldn't set a lab up on site for a small road repair that may be 100 metres long. The testing is still done on site, but there is no laboratory and if there was - - -
*** ANTHONY CALLINAN XXN MS HOGG
PN2686
VICE PRESIDENT HATCHER: Mr Callinan, I think what is being put is that it must follow from the second sentence of paragraph 21 that at least for some civil construction work, the testing is done off site in permanent labs?‑‑‑-Yes, so some of the samples, if there was further testing required that they didn't do in the field, for example, the slump testing they do in the field, some of the compaction testing they do in the field. But if there was a sample required to be taken, for example, for a sieve test, it would return to a laboratory. But that work is still for the civil construction industry.
PN2687
Thank you.
PN2688
MS HOGG: Thank you.
PN2689
If I could take you now to paragraphs 28 to 41 of your statement, in those paragraphs, you make some general comments on slump testing and then in paragraphs 42 to 51 of your statement, you make some general comments on soil compaction testing; is that correct?--Yes, that's correct.
PN2690
The comments that you have made, they specifically relate to the HEA Project; is that correct?‑‑‑That's correct.
PN2691
I put it to you that the evidence that you have given in relation to slump testing is not something that applies to all of Coffey's operations?‑‑‑Well, it applies to all of Coffey's operations where they're performing a slump test on concrete, whether it's done on the HEA, the M5, the M1, if you're performing a slump test on concrete that's being used to build a road, the test is the same. My reference to the HEA is because it's my most recent major civil construction project in the Newcastle area that I had members on in this industry.
PN2692
The information that you have presented comes from your discussions with your members?‑‑‑Yes, and my observation of those tests in gathering evidence for previous hearings and witness statements.
PN2693
But none of those employees have been called today, have they, as witnesses?‑‑‑No, they haven't.
PN2694
Thank you. No further questions.
PN2695
VICE PRESIDENT HATCHER: Any re-examination, Mr Crawford?
*** ANTHONY CALLINAN XXN MS HOGG
PN2696
MR CRAWFORD: No, thank you, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Callinan, you're excused and you're free to go.
<THE WITNESS WITHDREW [3.23 PM]
PN2698
VICE PRESIDENT HATCHER: Mr Buhler, is he the last witness, Mr Crawford?
MR CRAWFORD: Yes, he is, your Honour.
<JEFFREY EDWARD BUHLER, AFFIRMED [3.24 PM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [3.24 PM]
PN2700
VICE PRESIDENT HATCHER: Mr Crawford.
PN2701
MR CRAWFORD: Thank you, your Honour.
PN2702
Mr Buhler, have you prepared a statement in these proceedings?‑‑‑Yes, I have.
PN2703
Do you have a copy with you?‑‑‑I certainly do.
PN2704
Did you sign that statement on 30 November 2016?‑‑‑Yes, I did.
PN2705
To the best of your knowledge, is that statement true and accurate?‑‑‑Yes, it is.
PN2706
I would like to tender that statement, your Honour.
VICE PRESIDENT HATCHER: The statement of Jeff Buhler dated 20 November 2016 will be marked exhibit 43.
EXHIBIT #43 STATEMENT OF JEFF BUHLER DATED 20/11/2016
*** JEFFREY EDWARD BUHLER XN MR CRAWFORD
*** JEFFREY EDWARD BUHLER XXN MS HOGG
VICE PRESIDENT HATCHER: Ms Hogg.
CROSS-EXAMINATION BY MS HOGG [3.24 PM]
PN2709
MS HOGG: Mr Buhler, Ms Hogg here. Are you able to hear me clearly?‑‑‑Yes, I can.
PN2710
Thank you. I'll just be taking you through a few questions about your statement?‑‑‑Yes.
PN2711
In your witness statement, there are a number of general comments that are made concerning the construction industry. If I could take you to paragraph 6 of your statement?‑‑‑Yes.
PN2712
In that particular paragraph you state or you give evidence that the construction companies generally outsource testing work to companies like Coffey because of their independence; is that correct?‑‑‑That's correct.
PN2713
On what basis do you make that assertion, Mr Buhler?‑‑‑From talking to our members out on site that they are employed by all the different construction companies out there and also dealing with the concrete companies themselves, like Metro Mix, who do you have an arrangement with Coffey to do their testing.
PN2714
In paragraph 7 of your statement, you give evidence that members spend the overwhelming majority of their time on site and generally only attend the base laboratories to deliver samples, hand in paperwork, or attend meetings; is that correct?‑‑‑That's correct.
PN2715
I put it to you that that's not, in fact, the case, that there is a greater percentage of work done at the laboratories?‑‑‑That's not true. The reason why I believe that that's the case is that if I need to ring one of our members, generally, nine times out of ten, they're actually on site. I've never actually had to meet any of our members if I need to personally see them at the laboratories. The only I have ever actually attended the laboratory was to conduct EBA negotiations or have a meeting. So, every time that I have ever had to make a phone call to one of our members, they've always told me that they are always on site.
PN2716
Are we talking a large number of members, comparative to the workforce, I suppose?‑‑‑We've got members, yes.
PN2717
But, obviously, your interactions are confined to the members and the segment of the workforce that you're representing?‑‑‑That's correct.
*** JEFFREY EDWARD BUHLER XXN MS HOGG
PN2718
In paragraph 8 of your statement, you give evidence that your members receive in-house training from Coffey, but are not required to have any external qualifications; is that correct?‑‑‑That's correct.
PN2719
Is this opinion based on your discussions with AWU members?‑‑‑That's correct.
PN2720
Are you aware if any of your members have qualifications? Have you asked them?‑‑‑Yes, I have. Geoff Muller who gave evidence just before is a qualified plumber. That's one of the questions that you, sort of, ask people about their background, what they've done previously, sort of leading questions, you know, when you meet them first up.
PN2721
But not necessarily a relevant qualification to testing work?‑‑‑That's correct, yes, and also one of the - we always ask what sort of training has been doing, you know, safety training, do you have tool boxes and all that sort of stuff.
PN2722
Thank you. Nothing further.
PN2723
VICE PRESIDENT HATCHER: Re-examination, Mr Crawford?
PN2724
MR CRAWFORD: No, thank you, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Buhler. You're excused and you're free to go.
<THE WITNESS WITHDREW [3.29 PM]
*** JEFFREY EDWARD BUHLER XXN MS HOGG
PN2726
VICE PRESIDENT HATCHER: Can I confirm that we have now received all of the evidence which every party wishes to adduce? Yes, all right. So, the arrangements are that we will receive oral submissions on, I think, Monday and Tuesday of next week at this stage. Can I again confirm what was discussed at the directions hearing, that is the submissions and any party who has a strong or different view can tell us now. The submissions will deal with the issues sequentially in the order that they appear in the issues document. That is, for example, issue 1 concerns the allowances issue and we'll hear all parties about that issue before then turning to issue 2. Is that the understanding of all parties? No one has a different view? Mr Schmitke, have you got any further in terms of giving greater precision about your alternative positions with respect to various matters? That is, it is possible, for example, that even if you just hand it up on Monday, have a draft determination varying the award which reflects the alternative position so we have a better understanding.
PN2727
MR SCHMITKE: Yes, there is. I recall one example in our submission along those lines, but I'm happy to provide additional draft determinations, yes.
PN2728
VICE PRESIDENT HATCHER: Yes, that sets out the completion variation that you would seek depending upon which submission, if any, was adopted.
PN2729
MR SCHMITKE: Yes, yes.
PN2730
VICE PRESIDENT HATCHER: All right. Is there any other procedural matters that we can deal with now?
PN2731
MS HOGG: Your Honour, could I clarify, are you expecting submissions just be on Monday and Tuesday, finishing on Tuesday?
PN2732
VICE PRESIDENT HATCHER: We haven't vacated any dates yet, so, effectively speaking, we have still got Monday to Thursday.
PN2733
MS HOGG: Yes.
PN2734
VICE PRESIDENT HATCHER: I'd be surprised if it goes beyond Tuesday, but the additional time is there if it's needed.
PN2735
MS HOGG: Thank you.
PN2736
VICE PRESIDENT HATCHER: Does any party anticipate we will need beyond Tuesday?
PN2737
MR CRAWFORD: It's hard to know, your Honour, because particularly in relation to this allowances issue, I have looked at exhibit 8 and exhibit 9 and a difficulty arises and it relates to the question you asked just a moment ago as to the alternative submissions and the first one being deleting the work health and safety component. Until we know what it is, I mean, to be quite frank, the MBA's own witness on this issue said they weren't work health and safety provisions in the end, I think in relation to an answer to at least Deputy President Hamilton, and it hasn't been identified to use in relation to all these allowances and special rates which form the vast bulk of exhibit 9. What is the work health and safety component? It makes it very difficult to deal with other than to go through each allowance and, in effect, argue a negative about there being no work health and safety component. But one has to go - - -
PN2738
VICE PRESIDENT HATCHER: The directions did say that the parties seeking change had to file draft determinations at the identified dates.
PN2739
MR CRAWFORD: Yes.
PN2740
VICE PRESIDENT HATCHER: But you didn't actually do that.
PN2741
MR SCHMITKE: Yes, well, there are some that have been attached to our submissions, but what I would say is that the parties at the Bar table have been discussing this issue in conferences for a fairly long period of time. The concept in terms of what it is, Master Builders has been put forward, isn't necessarily something which is new between the parties.
PN2742
VICE PRESIDENT HATCHER: I don't care what has been discussed in conferences. Can you file draft determinations setting out the variations you seek by midday on Friday?
PN2743
MR SCHMITKE: I will do my best.
PN2744
VICE PRESIDENT HATCHER: Because I think if, for example, even on the primary claim, the parties need to know which allowances you are proposing to be abolished.
PN2745
MR SCHMITKE: Yes, well, your Honour, that is the purpose of that document, exhibit 8, but that is the purpose of that document, exhibit 8, was to set it out for the parties so they knew exactly which.
PN2746
VICE PRESIDENT HATCHER: Sorry, the purpose of which document?
PN2747
MR SCHMITKE: Exhibit 8. I think it was exhibit 8, the new document.
PN2748
VICE PRESIDENT HATCHER: Exhibit 8.
PN2749
MR CRAWFORD: I think it's exhibit 9 and I accept that the primary position is set out there which is basically to get rid of all allowances and special rates. So, with very few exceptions, it's the alternative provisions that give rise to the problem and the first being an alternative - - -
PN2750
VICE PRESIDENT HATCHER: I don't want to start having to cross-reference documents. You know what a draft determination is.
PN2751
MR SCHMITKE: Yes, yes. No, exactly right, your Honour, and I'm very happy to.
PN2752
VICE PRESIDENT HATCHER: Can you provide draft determinations by 12 o'clock on Friday?
PN2753
MR SCHMITKE: If it could be 4 o'clock on Friday, I would appreciate it.
PN2754
VICE PRESIDENT HATCHER: The parties are entitled to see them without having to work all weekend. There was a directions made at the commencement of the case that the parties were required to file draft determinations setting out their case.
PN2755
MR SCHMITKE: Yes.
PN2756
VICE PRESIDENT HATCHER: Your client still hasn't done that.
PN2757
MR SCHMITKE: I will seek to file them (indistinct).
PN2758
VICE PRESIDENT HATCHER: Thank you. Any other procedural issue we can deal with? No, all right. We will now adjourn and we will resume at 10 am, next Monday morning.
ADJOURNED UNTIL MONDAY, 10 APRIL 2017 [3.35 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
ROBERT WILSON, AFFIRMED..................................................................... PN1792
EXAMINATION-IN-CHIEF BY MR SCHMITKE........................................ PN1792
EXHIBIT #32 WITNESS STATEMENT OF ROBERT WILSON DATED 09/12/2016............................................................................................................................... PN1800
CROSS-EXAMINATION BY MR MAXWELL............................................. PN1802
THE WITNESS WITHDREW.......................................................................... PN1842
CAMERON BENEDICT SPENCE, AFFIRMED.......................................... PN1857
EXAMINATION-IN-CHIEF BY MR SCHMITKE........................................ PN1857
EXHIBIT #33 STATEMENT OF CAMERON BENEDICT SPENCE DATED 09/12/2016................................................................................................................................ PN1862
CROSS-EXAMINATION BY MR MAXWELL............................................. PN1864
EXHIBIT #34 2017 ACT RDO CALENDAR.................................................. PN1922
RE-EXAMINATION BY MR SCHMITKE.................................................... PN2059
THE WITNESS WITHDREW.......................................................................... PN2124
GRAHAM PALLOT, AFFIRMED................................................................... PN2136
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN2136
EXHIBIT #35 WITNESS STATEMENT OF GRAHAM PALLOT DATED 07/12/2016............................................................................................................................... PN2145
CROSS-EXAMINATION BY MS PAUL........................................................ PN2193
RE-EXAMINATION BY MR MAXWELL..................................................... PN2241
THE WITNESS WITHDREW.......................................................................... PN2250
PAUL FERREIRA, AFFIRMED...................................................................... PN2257
EXAMINATION-IN-CHIEF BY MR MAXWELL........................................ PN2257
EXHIBIT #36 WITNESS STATEMENT OF PAUL FERREIRA DATED 02/12/2016............................................................................................................................... PN2265
CROSS-EXAMINATION BY MS PAUL........................................................ PN2301
THE WITNESS WITHDREW.......................................................................... PN2318
KRISTOPHER JAMES WOODWARD, AFFIRMED................................... PN2327
EXAMINATION-IN-CHIEF BY VICE PRESIDENT HATCHER............. PN2327
EXHIBIT #37 WITNESS STATEMENT OF KRIS WOODWARD DATED 02/12/2016............................................................................................................................... PN2331
CROSS-EXAMINATION BY MS PAUL........................................................ PN2368
THE WITNESS WITHDREW.......................................................................... PN2390
PETER VIVIAN JAMES GLOVER, SWORN............................................... PN2397
EXAMINATION-IN-CHIEF BY MR SCHMITKE........................................ PN2397
EXHIBIT #38 STATEMENT OF PETER VIVIAN JAMES GLOVER DATED 09/12/2016............................................................................................................................... PN2403
CROSS-EXAMINATION BY MR MAXWELL............................................. PN2406
EXHIBIT #39 AUSTROADS CONGESTION AND RELIABILITY REVIEW SUMMARY............................................................................................................................... PN2520
EXHIBIT #40 NATIONAL JOINERY AND BUILDING TRADES PRODUCTS AWARD 2002............................................................................................................................... PN2547
THE WITNESS WITHDREW.......................................................................... PN2551
GEOFFREY LEE MULLER, AFFIRMED.................................................... PN2554
EXAMINATION-IN-CHIEF BY MR CRAWFORD..................................... PN2554
EXHIBIT #41 STATEMENT OF GEOFF MULLER DATED 01/12/2016. PN2562
CROSS-EXAMINATION BY MS HOGG....................................................... PN2569
THE WITNESS WITHDREW.......................................................................... PN2624
ANTHONY CALLINAN, AFFIRMED............................................................ PN2627
EXAMINATION-IN-CHIEF BY MR CRAWFORD..................................... PN2627
EXHIBIT #42 STATEMENT OF ANTHONY CALLINAN DATED 30/11/2016 PN2635
CROSS-EXAMINATION BY MS HOGG....................................................... PN2637
THE WITNESS WITHDREW.......................................................................... PN2697
JEFFREY EDWARD BUHLER, AFFIRMED............................................... PN2699
EXAMINATION-IN-CHIEF BY MR CRAWFORD..................................... PN2699
EXHIBIT #43 STATEMENT OF JEFF BUHLER DATED 20/11/2016...... PN2707
CROSS-EXAMINATION BY MS HOGG....................................................... PN2708
THE WITNESS WITHDREW.......................................................................... PN2725