PN1

THE DEPUTY PRESIDENT: Good morning. I might just get you all to announce your appearances, given that we are recording this conference. Perhaps begin with you, Mr Nguyen.

PN2

MR M NGUYEN: Yes, Mr Nguyen, initial M. I'm appearing for the Australian Manufacturing Workers' Union.

PN3

MR S MAXWELL: Maxwell, initial S. I appear on behalf of the CFMEU and also today the AWU.

PN4

THE DEPUTY PRESIDENT: Thank you.

PN5

MS M ADLER: Adler, initial M for the Housing Industry Association.

PN6

THE DEPUTY PRESIDENT: Yes.

PN7

MS V PAUL: Paul, initial V, Ai Group.

PN8

THE DEPUTY PRESIDENT: Thank you.

PN9

MS R SOSTARKO: Sostarko, initial R for Master Builders Australia.

PN10

THE DEPUTY PRESIDENT: Thank you Ms Sostarko.

PN11

MR S McGREGOR: McGregor, initial S for Master Builders Australia, also.

PN12

THE DEPUTY PRESIDENT: Thank you.

PN13

MR A SPOTTISWOOD: Spottiswood, initial A for CCF.

PN14

THE DEPUTY PRESIDENT: All right, thank you very much.

PN15

Various interested parties have filed some documents in respect of the allowances issue. Have the parties had an opportunity at all to have discussions? No? All right.

PN16

Mr Maxwell, perhaps we might begin with you and you might briefly set out the nature of the document and the rational underpinning, the CFMEU draft.

PN17

MR MAXWELL: Thank you, your Honour. Your Honour, in regard to the CFMEU draft allowances clause, when I drew up that document, in regard to the tool and employee protection allowances, what I included in the draft was the existing provisions. However, I also included what the Full Bench had put out in their provisional view with, I suppose, two additions from our point of view which were issues that we still seek and which will be the subject of any arbitration by the Full Bench. They're the ones we've identified in red dealing with the x-rays and the reimbursement for clothing for mess personnel.

PN18

What I sought to do with the clauses is identify the allowance by the type, so clause 20 deals with expense-related allowances, so I'd include the tool and employee protection allowance, the meal allowance, the compensation for clothes and tools. I've included there the special allowance, although I think there's some argument about whether that's a special allowance or not, but given that it's not adjustable, I don't think it really is that much of an issue where it appears in the clauses.

PN19

I've also included the second-hand timber allowance. I think there is some disagreement as to whether that goes in special rate allowances or disability allowances. I've also included a reference to the living away from home allowances and fares and travel allowances, just on the basis that those clauses do include expense related allowances. I didn't intend - in our draft we haven't included those clauses there because they're quite substantial clauses and we believe they're best left separate. We've then added how the special rate allowances are adjusted.

PN20

Clause 21 deals with the all-purpose skill related allowances and we have just identified there which of the skill related allowances are paid on for all purposes. Again, of those, I think there is some disagreement between the parties in regard to the in-charge of plant allowance and the mobile cranes adjustment formula, capacity adjustment formula, about whether those are all-purposes. I note that the MBA have made a submission in regard to that and we've responded in writing to that.

PN21

The other skill related allowances are then included which are set out in clause 22. With clause 23, I've then sought to identify which of the disability allowances are paid for all purposes and I think with those, I think the only one where I think there is some dispute is the air conditioning industry and refrigeration industry allowance and in part have made submissions in regard to that allowance.

PN22

In clause 24, I've then identified the other disability allowances and in some respects there I've brought in some allowances that were identified separately in the award into a clause that mainly dealt with special rates because the conditions in respect to other disability allowances was actually the clause that talked about the conditions relating to special rates. But because I think the reality is that the way the allowances are now grouped in the majority of cases, only one of the allowances would apply. Then those conditions are appropriate to be included here.

PN23

I've then identified those allowances that deal with working at heights. We have the multi-storey allowance. This includes the scaffold height work, the towns allowance and roof repairs. Allowances that are material related, and I've included there the asbestos eradication. Just to explain why the clause 24.4(f) and 22.3 have been struck out is because those allowances are no longer within this clause. So, it doesn't need to say that they apply because they are not included in this clause and they apply separately where they exist.

PN24

The next grouping of clauses are those related to artificial environment which deal with hot work and cold work. I've included the current wording in the award, but I've also put forward an alternative about how it could be, I suppose, expressed as one provision. I can't see it likely that people will be working in a hot environment and cold environment at the same time. But I've also made a note there that perhaps the allowances relating to cofferdam work and the compressed air work could be included in this grouping because they also really deal with someone working in an artificial environment.

PN25

24.5 I've then listed all those allowances that are tool related and there they're set out. 24.7 deals with those that are related to brick and block work. 24.8 of those related to painting work. I've kept confined space separate because that's clearly a separate allowance and identified cofferdam worker separately for the time being. Then 24.11 is the operator related allowances and the final ones of those relate to the civil construction sector only.

PN26

In setting them out, we hope that that then means that reading the award is a lot easier and straightforward for people that are trying to find out what allowances apply. By including the conditions at 24.1 it would then be easier for people to identify those allowances that relate to similar work and to work out that normally only one of those would apply at a particular time. That's particularly in regard to working at heights and the interior related and the artificial environment.

PN27

That's a brief explanation of our documents and at this stage we have not sought to do any further consolidation although we believe that perhaps there is an avenue to further consolidate, but I'd like to see what the other parties have to say.

PN28

THE DEPUTY PRESIDENT: Yes, all right. Can I ask at least the employer parties, is there any real dispute about the way in which Mr Maxwell's document is structured, putting aside the content in each component. I gather from at least reading briefly the short replies that the parties have put in, there is general agreement about that structure. Is that so?

PN29

MS PAUL: With the general sort of packaging of them in that sense, I have a couple of fears that might perhaps save the classification of certain allowances which we would say are not for all purposes, or perhaps a skill as opposed to useability and so forth.

PN30

THE DEPUTY PRESIDENT: That's content and categorisation, but not in terms of structure. All right.

PN31

MS PAUL: I would also like to add that Master Builders would make those comments in the context of our broader claim and so forth, obviously which have already been advanced.

PN32

THE DEPUTY PRESIDENT: Maintain its earlier submissions. Yes, I understand.

PN33

MS PAUL: Particularly, the work health safety claim that still remains.

PN34

THE DEPUTY PRESIDENT: I understand that.

PN35

Who wants to go first in terms of the dispute about where particular allowances are to be contained and whether or not they're all purpose or not? Ms Adler?

PN36

MS ADLER: I guess our concerns were outlined in the correspondence dated 22 January, so really, that goes to how or what to do with the special allowance; whether or not to include that as a stand-alone or in a category. Equally, with the living away from home, the fares and travel allowances, our view would be to keep that distinct from the categorisation that's been put forward by the CFMEU. Also, just the matter of the dispute about the in charge of plant, mobile plant and air conditioning allowance and whether or not they're all purpose.

PN37

Beyond that, we broadly agree with the classification of those allowances in their various categories.

PN38

THE DEPUTY PRESIDENT: Mr Maxwell, is it fair for me to assume that further discussion about whether or not the particular allowances which are in dispute are all purpose for the purpose of the award, is not going to be resolved, it needs to be arbitrated?

PN39

MR MAXWELL: That's correct.

PN40

THE DEPUTY PRESIDENT: Mr Maxwell, you indicated earlier that there might be some opportunity for further consolidation of allowances that are in the various categories. How do you see that progressing?

PN41

MR MAXWELL: We could put forward a proposal and the parties have the time to respond, but I just say that - I mean it really depends whether the parties think there is any utility in us doing that.

PN42

THE DEPUTY PRESIDENT: Yes, sure. I understand.

PN43

MR MAXWELL: If there isn't, well then - - -

PN44

THE DEPUTY PRESIDENT: No, I understand.

PN45

MR MAXWELL: To give you an example, if you looked at the - under the brick and block related allowances, if we looked at the 24.7(b), (c) and (d), perhaps you could just say that an employee engaged on cleaning down brick work, baking or slashing is paid a rate. I know that the slashing one is slightly different, but given that it's that rare, I would suggest that you could just have a block one division and set it at the 2.9 per cent of the standard rate.

PN46

There's issue about whether you include the cofferdam worker and the compressed air work under the artificial environment. I don't know whether there'd be any reduction in the wording, but it would just be a question I suppose, of putting them in the same place. In discussions I've had with the AWU, I think they believe that perhaps if the compressed air work was taken out, it could then perhaps just have one allowance for civil construction work, but I'm not sure whether the employers would be attracted to that option.

PN47

MS SOSTARKO: Deputy President, I understand you may have noted that we filed some documents this morning, and I apologise for the lateness in us doing so. We do have copies we've circulated amongst the parties but we have hard copies if the parties would like a copy of those. What I would say is that certainly we do see absolutely some utility in the grouping and consolidating to some degree, the allowances under the award.

PN48

But we would say that within Mr Maxwell's document that we've discussed in addition to that, and I know that the Deputy President has flagged that we would only be looking at structure today, but we do need to consider that any consolidation of I guess redrafting of these needs to be considered not lightly. There is significant history in terms of why certain allowances are in certain places and if there are substantive changes that are being proposed that we would seek the opportunity to make formal submissions in response to those.

PN49

But in saying that, this document that we filed this morning - have you got the schedules as well? We've prepared a schedule which hopefully will assist in guiding how we've grouped things which doesn't significantly depart from the one that the CFMEU has proposed, other than save for where we've said no, it's our view that certain allowances are not paid for all purposes, or that they should be classified as skill or disability or expense as relevant.

PN50

The drafting of the clause content of our document reflects that of the existing award, save for the tool and employee protection allowance wording which was as a consequence of the August statement that the Commission released. Obviously, we note that the parties, including Master Builders have a number of claims to change the existing provisions, but given that it was our view that today was just going to be about the structure of those, we've worked with the existing allowances to this point.

PN51

I think, if Mr Maxwell for example, he's flagged a couple of additional options that he thought could be something to consider, we would be open to that but we'd need to obviously review those and take some instruction on that, if he wanted to file some proposed amendments that reflect those comments.

PN52

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

PN53

MS PAUL: Your Honour, we have no objection to obviously the general grouping or the structure. We do have some concerns with the further consolidation, but happy to look at some suggestions, I think. I may have misheard Mr Maxwell, but there was something about just a combining all the civil construction - yes, I think we might have a problem with that. I just thought I might flag that one up front. But I think some of flagging stuff, is subject to obviously having a look at what that means in a practical perspective, but an all up rate for civil might be a problem.

PN54

THE DEPUTY PRESIDENT: Mr Spottiswood, do you want to say anything?

PN55

MR SPOTTISWOOD: Sorry, Deputy President, I did have some paperwork pending, but I haven't received the go-ahead from Muller. It really relates only to the award categories and - - -

PN56

THE DEPUTY PRESIDENT: Does that mean you have a document, or you don't have a document?

PN57

MR SPOTTISWOOD: I have a document, yes and I'm happy to pass it around.

PN58

THE DEPUTY PRESIDENT: Right. Well perhaps my associate might come and get it.

PN59

MS SOSTARKO: Deputy President, if I may, I'm not quite sure how you would want to proceed. I mean, we're quite happy to work through where our differences lie in terms of the grouping, to that proposed by the CFMEU, or whether or not you want to go through such a process or not; we're in your hands. But I guess this is why we prepared this schedule at the front, because I suppose it summarises and gives you at least a snapshot of what the alternative proposal that we would have might be.

PN60

THE DEPUTY PRESIDENT: Yes. Mr Nguyen, do you want to say anything?

PN61

MR NGUYEN: Deputy President, we support the CFMEU's proposed groupings and we're open to considering proposals for consolidation.

PN62

THE DEPUTY PRESIDENT: Without going through in detail the MBA's proposal, how different is it to the CFMEU's proposal?

PN63

MS SOSTARKO: Conceptually, not significantly different.

PN64

THE DEPUTY PRESIDENT: It's just all the words and numbers are different?

PN65

MS SOSTARKO: Well, no. In terms of - I guess, as I've said the differences lie and they strictly lie where we have said that those allowances are not payable for all purposes, or where we've said a particular allowance, for example, if I can off the top of my head - there's the second-hand timber allowance. We have in previous discussions and maintain the view that it's a disability allowance whereas the CFMEU has said that it's an expense allowance. Those differences are confined to those points.

PN66

THE DEPUTY PRESIDENT: Mr Maxwell I take it from your draft, you haven't altered the wording of any particular allowance as contained - no. So, all you've done is taken the existing allowance provisions in the award and categorised them according to the scheme that you've developed.

PN67

MR MAXWELL: That's correct. The only area where it's different is the tool and employee protection allowance where we've adopted the word and we've added those provisions suggested by the Full Bench.

PN68

THE DEPUTY PRESIDENT: Yes, I understand that.

PN69

MS SOSTARKO: I would actually say that that's not quite the case, given that there are a number of allowances in CFMEU's draft, such as the mobile crane's capacity adjustment formula and the air conditioning allowance but the words 'payable for all purposes' or words to that effect have been added.

PN70

THE DEPUTY PRESIDENT: I understand, but that's reflecting their position on that. I assume - and likewise, in your draft presumably, you say that those two allowances are not all-purpose.

PN71

MS SOSTARKO: Well, we haven't changed the wording. It's simply - where we have reflected that view, is in the way that we've grouped those allowances, but certainly none of the words have been changed at all.

PN72

THE DEPUTY PRESIDENT: All right. Apart from that, can I take it that in a lot of respects the wording in the MBA's document is reflective of the award provision?

PN73

MS SOSTARKO: Correct.

PN74

THE DEPUTY PRESIDENT: Save for that to accommodate our earlier statement.

PN75

MS SOSTARKO: Correct, yes.

PN76

THE DEPUTY PRESIDENT: And the CFMEU draft adopts the wording in respect of all allowances as contained in the current award, save for making explicit the two categories of allowances which are disputed as to whether or not they're all purpose. Such amendments as are necessary for the purposes of giving effect to the earlier statement, yes?

PN77

MS SOSTARKO: Again, I would point out that in the CFMEU's proposed redraft of the tool and employee protection allowance, I know that Mr Maxwell noted this earlier, that they have retained the provision in relation to x-rays which he's also redrafted in accordance with claims that he's advanced previously and the mess provision, the mess personnel allowance which was actually not in the draft that was contained in the August statement, he's also reinserted.

PN78

I know that Mr Maxwell flagged that, but I just wanted to make that clear. So, if you look at the CFMEU's proposal, if you go to 20.1(e) and (f), those two provisions don't actually exist, or those words aren't reflected in the August statement of the Commission. There's also some slight changes with regard to the provision of boots for refractory brick workers. That clause has also been altered.

PN79

MR MAXWELL: Your Honour, you'll notice in that document those items are in red and we have identified that they're consistent with the position that we put before the Full Bench of the hearing.

PN80

MS SOSTARKO: We don't dispute that, but just that we haven't actually included - there are a whole raft of provisions within this document which are subject to claims that we have on foot, but we haven't flagged or tracked those at all in our alternate grouping proposal because we've limited it to a discussion in relation to structure alone.

PN81

THE DEPUTY PRESIDENT: Well, is it too much to ask for the parties to be able to produce one document which, adopting the CFMEU categorisation, which contains those - putting to one side the respective claims for inclusion and exclusion of particular allowances. But, which includes the allowances under each category which are not disputed, subject to - and then allowances which are disputed as to the category in which they fall, to be identified in red.

PN82

Presumably in relation to the two disputed all purpose allowances, no dispute about the category, it's a dispute simply about whether or not they're all purpose or not. The category in which they - - -

PN83

MS PAUL: Your Honour, that would then lead into a category of whether you put into a different - the all purpose skill for example, or the all purpose disability and not all purpose, but it will sit within either a disability or a skill. But I believe what you're asking is whether the dispute is confined to whether it's for all purposes - - -

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MS PAUL: Then in fact we agree on that it's a disability. It's just whether or not it's all purpose.

PN86

THE DEPUTY PRESIDENT: Yes.

PN87

MS PAUL: I would just need to double check those particular items, but that's something we can certainly do very quickly.

PN88

THE DEPUTY PRESIDENT: Because ultimately, if we can reach a position where the categories of allowance - starting from where we are, in terms of the existing award, restricting them to categorise those allowances, identifying all of those areas that are not in dispute and then the Full Bench needing only to deal with disputed matters and to the extent that it adopts some or all of the MBA's proposal, then those allowances could be deleted from that proposal.

PN89

Or, if it rejects some or all of the MBA's claims, then they would be retained. But where they fall would be agreed. That's what I'm looking for, and similarly, to the extent that the CFMEU are advancing.

PN90

MR MAXWELL: Your Honour, the only area that's problematic I see at the moment is in regards to the MBA proposal to include the fares and travel or living away from home. All the other parties are quite happy to have those left as stand-alone clauses which just seems will be lots of paperwork for no real utility by including them in a document saying that this clause is in dispute. Where this clause goes is in dispute, when at the end of the day, it's only - well, I think the MBA's won out on that, but also those whole clauses are the subject of arbitration, getting into the fares and travel and living away from home clause is subject to arbitration by the Full Bench.

PN91

It may be that we can just identify - I mean in our document we've identified that there are expense related allowances and refer to the appropriate clause. Perhaps in the new document you can just identify there is a dispute about whether the clause goes here or remains separate, without actually putting all the wording in.

PN92

THE DEPUTY PRESIDENT: Sorry, I missed that last bit Mr Maxwell.

PN93

MR MAXWELL: Well I'm suggesting that we just identify that the parties agree that both these clauses contain expense related allowances but there is an issue about where those clauses are located within the award and just leave it at that, without actually including all the wording from the clauses.

PN94

THE DEPUTY PRESIDENT: Yes, I'm content for that. Who wants to prepare such a document as a first draft?

PN95

MS SOSTARKO: Just so I'm clear, what you're proposing is that we actually have a master document, for want of a better word.

PN96

THE DEPUTY PRESIDENT: Yes.

PN97

MS SOSTARKO: That I guess reflects the provisions and I would say that there's quite a few that we certainly would, on the face of it, agree in terms of how they've been categorised. But is it that you would then like the alternatives perhaps proposed within that same document or just a notation that - yes, I'm just trying to think how to reflect those conflicting views.

PN98

MR MAXWELL: My understanding of what you suggested is that we have one document that includes up front all those allowances and their located that's agreed.

PN99

THE DEPUTY PRESIDENT: Yes.

PN100

MR MAXWELL: Then after that, we just have highlight in red what provisions are not agreed and perhaps just a note saying what the issue is between the parties.

PN101

THE DEPUTY PRESIDENT: That's right, yes.

PN102

MR MAXWELL: Your Honour, I can quickly, I think provide such a document, given from my understanding the majority of our document is supported by the parties, so I would expect that I could have that by Tuesday of next week, circulate that to the parties and then if there are any issues, we can work it out between ourselves to arrive at an agreed document to be filed by the end of next week.

PN103

MS SOSTARKO: I would certainly appreciate Mr Maxwell doing that. Just on the proviso that the clauses reflect those of the existing award. That whatever proposals that he's advanced and included in this existing document that he's filed, are taken out and reflect those of the existing award, just so that we can focus on structure.

PN104

THE DEPUTY PRESIDENT: Is there any difficulty with that? No, all right, thank you. When I say agreed, the content of the document agreed, that's not just as between the MBA and the CFMEU, that's everybody.

PN105

MS SOSTARKO: Yes, certainly.

PN106

THE DEPUTY PRESIDENT: All right. End of next week, whilst desirable, seems to me to be ambitious, but you know. How about the end of the week after?

PN107

MS SOSTARKO: Thank you, your Honour.

PN108

THE DEPUTY PRESIDENT: Once that document is finalised, unless there's any desperate need - I'm assuming the parties have said all they wish to say about the all purpose point? They've already made submissions in relation to their respective claims, so unless there's a desperate desire for a further conference, I'm simply going to report to the Full Bench and we'll make the decision.

PN109

Mr Nguyen, is there anything else?

PN110

MR NGUYEN: I guess I should report back how we did have a teleconference between ourselves and the Ai Group and the MBA. I did invite everyone to attend if they wanted to, if they had an interest about the air conditioning allowance. I thought that we had agreement that it was all purpose based on the history, but there was a disagreement about whether they require calculations should be changed. But subsequently the parties have put in their own written positions which have changed slightly, so it looks like there is a full dispute about whether the clause is all purpose between ourselves and the MBA.

PN111

The Ai Group has a more nuanced position - correct me if I'm wrong, Ms Paul, but I think they agree that it is all purpose and the current calculation that's not for daily hire, reflects that it is all purpose. But the Ai Group maintain that the daily hire calculation should not change and it shouldn't be included in that calculation.

PN112

MS SOSTARKO: Just so that I can clarify that, the nuancing is on the basis that we see - I wouldn't go so far as to say it's all purpose, but that will reflect maybe all purpose, but we say it's applicable to weekly employees as a result of reading clause 19.1 and clause 22. The two clauses read together, it clearly indicates that weekly employees, hourly rates include the air conditioning allowance. We don't resile from that fact when we say that obviously came from - and there's a referencing obviously back to the MECA award in relation to that.

PN113

But the clause itself, being the allowance, we say shouldn't be changed to be reflective of being an all purpose allowance, so that it might be better just to simply have a reference in the allowance clause back to 19.1(b), so that it identifies that the calculation for the purpose of a weekly employee's hourly rate has to include the air conditioning allowance. To characterise it as all purpose, your Honour, would definitely make it an all purpose allowance and have impacts on casuals and daily hire while the intent is clearly on the basis that it's weekly hire employees that get it as part of the hourly rate.

PN114

The practical effect is that weekly hire employees get it in all sense, as all purpose. Hence, we are a bit more uncomfortable about the use of the word generally making the allowance all purpose.

PN115

MR NGUYEN: Whereas, our submission is that the history of the allowance is that it is all purpose and we've developed that history in our submission from last year. But I think when we drafted our proposed variation, we didn't just include the words all purpose in the current clause, we also sought to change the mechanical clause, which is the one that identifies how you actually calculate it. Just to make it easier, there's a user clause and then there's the definition entitlement clause.

PN116

If we just put all purpose in the entitlement clause, then there might be some confusion because the user clause which identifies how you actually calculate it, the daily hire won't reflect that and so we also proposed in our draft clause a variation to reflect that in the user calculation clause, which is where this issue about, well do daily hire get it, comes up.

PN117

In my research which hasn't been included in our submissions so far, just from discussions with Mr Maxwell and otherwise, I understand that daily hire is not something that came from the original MECA award, which is where this allowance came from, so there wasn't originally daily hire in there. It came from the Building Award and so when the two awards were put together, that's why the calculation as verified doesn't include it. It doesn't mean that it was never all purpose, it just means that when the two awards came together, the operation of daily hire then was extended to the classifications of these other awards which didn't have daily hire before.

PN118

If the Commission pleases, I would seek a bit of time to just formulate that into a written history so that people can respond to it if they want to. But that's the missing part of the story which is that the daily hire came from those building awards and the all purpose air conditioning, and the weekly hire calculation came from the MECA awards.

PN119

THE DEPUTY PRESIDENT: Thank you. It seems to me Mr Nguyen, you seem to be close to an agreement with the Ai Group in the sense that it's all purpose, but it never applied to daily hire because daily hire employees weren't employed pursuant to the old award.

PN120

MR NGUYEN: That's right.

PN121

THE DEPUTY PRESIDENT: It's a question of how you now - well, from your perspective, stop it being applied to daily hire.

PN122

MS SOSTARKO: Yes, and we raise a concern around casuals as well, your Honour, in terms of the fact that because it's a weekly rate, and how you calculate that rate, and whether or not MECA actually intended it to be covered by casuals is another issue in itself. Hence, our position is that the parties - and there is nothing in any of the decisions of the Full Bench in relation to this. I've checked and we don't seem to have any notes to indicate that the parties, you know in terms of what the parties intended.

PN123

But clearly at the time of taking it, the Full Bench did intend to exclude a certain class of employees from getting the hourly rate to include it, hence our reluctance to want to use the word all purpose, as well as then not including the term all purpose within that particular allowance.

PN124

I don't know that we can simply say that simply because it was a MECA, that it's got to automatically transfer into a third 2010 award. It assists in terms obviously of the MECA argument around weekly employees because it's about a calculation mechanism that is set within the award. But to call it all purpose, actually changes the characteristic of the clause as it stands at the moment.

PN125

To rely purely on MECA is one argument, but that shouldn't be the sole argument to create that change. Hence the position - we don't have a problem with the fact that weekly employees' hourly rate to include it, but we don't know that it goes so far as to therefore then flow into everything else.

PN126

THE DEPUTY PRESIDENT: Yes, all right.

PN127

MR NGUYEN: If I can just say they did apply to casuals previously, so there's no reason why it shouldn't continue to apply to casuals and it sounds like there may be a whole range of issues that maybe we should just have a clean set of submissions that we just set out our case and have one response.

PN128

THE DEPUTY PRESIDENT: Yes, I'm content to allow you to do that. Timetable, Mr Nguyen?

PN129

MR NGUYEN: I would suggest a week and a half for us to put together our submission and then the employers want the same amount of time.

PN130

THE DEPUTY PRESIDENT: What about 7 February for you?

PN131

MR NGUYEN: Yes.

PN132

THE DEPUTY PRESIDENT: By 16 February the for employers?

PN133

MS SOSTARKO: Yes, your Honour.

PN134

THE DEPUTY PRESIDENT: All right.

PN135

MS SOSTARKO: If I may, your Honour, it's of a similar vein, a point that we wanted to make with regard to some correspondence that the CFMEU filed on 22 January and that correspondence relates to a matter that was raised at the previous conciliation about the mobile crane's capacity adjustment formula. Master Builders has yet to have the opportunity to seek further instructions and to consider this point that's raised, given this correspondence and we would seek to be able to do so.

PN136

But the point that I'd like to make about that is that - and I think to some degree I understand that the discussion that we've just had with Mr Nguyen about whether or not that allowance is for all purposes, I guess is very much within the framework of what we're discussing in terms of structure and so forth. But, these types of claims are those that have not been raised during the course of these proceedings, so I guess there's a point where we ask, and that's why we ask certainly some further time if the Commission is minded to consider such a point, for example, that is raised within the CFMEU's recent correspondence.

PN137

But this is not a point that has been raised before and we would ask why that is the case, prior to the last conference. But in the event that the Commission is minded to consider it, then we would ask that we have a little bit more time to get instructions about what the consequences might be of such an amendment, given that it's a substantive in nature, and not limited to how we actually group these allowances.

PN138

MR MAXWELL: Your Honour, I beg to differ with the MBA. The issue about whether the allowances all purpose was discussed during the hearing before the Full Bench.

PN139

MS SOSTARKO: Sorry, with regard to the air conditioning or are you talking about mobile cranes?

PN140

MR MAXWELL: Mobile cranes.

PN141

MS SOSTARKO: Well that's not - but you're actually proposing a rewording of that clause as well.

PN142

MR MAXWELL: And it was raised at the last conference by the CFMEU about rewriting the clause to say that the mobile crane capacity adjustment only applies to cranes above 220 tonnes.

PN143

MS SOSTARKO: I noted that.

PN144

MR MAXWELL: It was my expectation that the MBA were then going to respond to that proposal and that was the basis on which they were to put in further written submissions. However, they then appeared to concentrate on the issues about whether the allowance was all purpose or not and didn't address the issue that I thought they were supposed to address, which is about the proposed rewriting of the allowance.

PN145

MS SOSTARKO: I guess that's the point I'm trying to make though is, is this something that we should be responding to at this point in time, given that all the parties have filed significant claims in this matter and I guess there's a point where I ask do we need to consider more?

PN146

THE DEPUTY PRESIDENT: I had thought that the issue of the mobile crane tonnage arose in the last conference as a consequence of some of the calculation being redundant. Is that - ?

PN147

MR MAXWELL: The position about that, the ambiguity under the award because in the classification structure, the back of the award, you have the mobile crane tonnage up to 220 and the mobile crane capacity adjustment formula kicks in after 100 tonnes. So, the issue was, do you need - - -

PN148

THE DEPUTY PRESIDENT: Because the classification already took into account operation of a crane under 200 and whatever it was, yes. I do recall having that discussion at the last conference. So, do you say Mr Maxwell's proposal goes further than trying to take that into account?

PN149

MS SOSTARKO: No, I'm not suggesting that, but I guess what I'm saying is that every clause has a history and any proposed changes shouldn't be taken lightly and therefore we would ask just some additional time to consider this point further, if Mr Maxwell's claim is to be considered.

PN150

THE DEPUTY PRESIDENT: I'm happy for you to have some further time to consider it. I'm not sure in fairness to him it's his claim as such, but in any event, I don't - on the face of it I don't see how making clear that an allowance isn't payable in circumstances where the classification already contemplates payment for that skill is detrimental to an employer. Otherwise you'll get arguments about whether or not there's a doubling up. That it's already paid for in the substantive classification or taking into account and then there's an additional allowance for the very same thing.

PN151

But in any event, Ms Sostarko, I'm happy for you to have some - or perhaps you can get something to the parties and to the Commission by say Friday week, tomorrow week?

PN152

MS SOSTARKO: Thank you, your Honour, certainly.

PN153

THE DEPUTY PRESIDENT: All right. Is there anything else?

PN154

The parties have some work to do and once all the documents have been filed, as I say, unless there's a request for a further conference, I'll simply report to the Full Bench and we'll make a decision on these matters along with all of the others. All right, thank you all for your work and your attendance to day. We'll adjourn.

ADJOURNED INDEFINITELY [11.52 AM]