Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1057229





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards – common issue – payment of wages – payments on termination – outstanding awards


Timber Industry Award 2010




9.32 AM, FRIDAY, 23 AUGUST 2019


JUSTICE ROSS:  Could I have the appearances, please?  Firstly, in Sydney?


MS A DEVASIA:  Ms Devasia, initial A, for the AMWU.


MS A AMPIHAIPAHAR:  May it please the Commission, Ambihalpahar, initial A, from the CEPU.


MS R BHATT:  If it pleases, Bhatt, initial R, I'm appearing for Ai Group.


MR L IZZO:  If it pleases, Izzo, initial L, appearing for ABI and NSWBC.


MS R SOSTARKO:  If it pleases your Honour, Sostarko, initial R, from Master Builders Australia.


Mr S CRAWFORD:  If it pleases the Commission, Crawford, initial S, for the Australian Workers Union.


MR S MAXWELL:  If the Commission pleases, Maxwell, initial S, for the CFMMEU Construction General Division.


MR A KENTISH:  If it pleases, Kentish, initial A, for the CFMMEU Mining and Energy Division.


JUSTICE ROSS:  Thank you.  And in Brisbane?


MS L REGAN:  If it pleases, Regan, initial L for the Housing Industry Association.


JUSTICE ROSS:  Thank you.  And in Melbourne?


MR D MALBASSA:  If it pleases the Commission, Malbasa, initial D, I'm from the Manufacturing Division of the CFMEU.  Thank you.


JUSTICE ROSS:  Thank you.  And in Canberra?


MR JOHNS:  If it pleases the Commission, my name is Johns, initial B, and I appear on behalf of the National Road Transport Association.


JUSTICE ROSS:  All right.  Thank you.


Let me just recap where I think we're up to and then where we may be going in relation to these matters.


In a decision of 26 July we dealt with some 33 awards that have outstanding issues arising from the finalisation of the payment of wages on termination model turn.  We set out a  number of provisional views and parties have variously responded to those.  We also noted that there had been applications to insert the model term in some 17 modern awards and that's really the issue we're here for.


We noted in the July decision that the parties had not yet had the opportunity to make submissions or adduce evidence about those applications and accordingly, we invited them to file submissions and material by 4 pm on 21 August.


So where we are as at today is ABI has filed a submission to vary a number of awards, Aged Care, Business Equipment, Supported Employment Services, Dry Cleaning, Plumbing, Meat, Road Transport and Distribution Road Transport Long Distance, Food Beverage Tobacco Manufacturing, Graphic Arts and the Manufacturing Award.


Ai Group has also filed a submission seeking to vary Aged Care, Black Coal, Building and Construction Onsite, Business Equipment, Electrical Electronics and Communications, Food Beverage and Tobacco Manufacturing, Graphic Arts, Manufacturing Meat, Mobile Crane Hiring, Plumbing and Fire Sprinkling, Road Transport Long Distance, Road Transport and Distribution and the Seafood Processing Award.


I think between you, you cover the 17 awards that we had listed in our earlier decision.  We've also received a submission from HIA in support of Ai Group's application to insert the model term into the Building and Construction Onsite Award.  Master Plumbers have filed a submission saying they don't oppose the variation of the Plumbing and Fire Sprinklers Award to include the model term, but they seek an amendment to note 2.  Natroad – excuse me – has filed submissions and a witness statement in support of its application to vary the two Transport Awards.


So that's the material that's come in, in relation to those applications to vary.  Submissions in reply and evidence in reply are due by 4 pm on 25 September.  And I will probably have a further mention, once the material comes in on the 25th and we will probably – the likely outcome is we'll publish a background paper which will simply set out, in summary form, the submissions filed by the respective parties.


I'd encourage you to have discussions between now and then and to the extent you can, narrow the issues that might be in dispute.  There may be an option in some of these awards to retain some aspect of an existing term and incorporate that aspect into the model term.  I'd encourage you to do that where you can.  If you do reach a consent position, let us know.  The approach we would adopt to that, usually, will be to publish a short statement, saying the parties have reached this position.  Here's the draft variation determination.


We would probably express, you know, depending on what you've agreed to, probably express a provisional view that we'd make a variation in those terms unless we hear from anyone opposing it, by X date type of thing and we'll try and clear out as much as we can before we get to the finalisation of it.  Once that statement is out, I'll have another short mention.  If anybody thinks that conciliation might be of assistance, by all means let us know.


We will probably – I know that we've said in the past that if you want an oral hearing, ask for one.  Depending on the nature of the arguments, we'll probably have an oral hearing in this, in any event.  It – we'll try and compress all of it into a day, to the extent we can, and I'll talk to all of you at a mention about what the order might be and the sequencing, so we don't keep everybody here for the whole day.  We try and group it together.  And I'll encourage you to try and sort that out amongst yourselves, as well.


A bit will depend on how much evidence is in there and whether people want to cross-examine witnesses and that sort of thing.  But I think if we're going to have an oral hearing for a couple we may as well given everyone the opportunity and often I've found in these things that the reply submissions don't always deal with everything in the initial one and of course, the applicant wants an opportunity to reply to the reply.  An oral hearing is the best of doing all that rather that drowning everyone in paper, although I suspect it's a bit late to be concerned about drowning people in paper.


The other things that I wanted to mention, before checking whether there's anything else.  In relation to the Timber Industry Award, the position seems to be that there are discussions continuing and look, I think I've expressed this view before but the provision in the Timber Award is, well, can best be described as opaque, and it's going to be varied because if for no other reason, I don't understand what it means and various parties have different views about what it means.


So I think we need to address that term.  But I want to give you as much opportunity to reach a consent position between you about that clause.  Now, bear in mind it doesn't need to be in the form of a draft variation determination.  Even if we can get to the point where the parties agree that this is what the clause should provide and just put it in dot points, then we can have a go at drafting it.  Or what do you think the clause currently means?


Because there is a level of complexity with it and we'll just take a little bit more time to deal with that matter.  So I'm content for the discussions to continue.  If someone can report back in two months as to where they're up to and just so that we don't lose sight of it, and then we'll circle back and pick it up, at some point.


I think that was all I had.  Is there anything in that that I've missed or is there anything that anyone wants to bring to my attention or raise with other parties?


Mr Izzo?


MR IZZO:  Well, I have one matter, your Honour, in relation to the Waste Management Award.




MR IZZO:  So there wasn't an application, as far as I understood, from ABI, AiG, or any party, to vary it but the Waste Management Award's terms were subject of queries by the Full Bench.




MR IZZO:  I understand AiG have now put in a submission saying that the model term should be inserted into the Waste Management Award.  That – I think ABI and NSWBC, we had it, to borrow a phrase, kind of had the blinkers on, in respect of looking at our – the awards we'd previously filed applications in relation to.




MR IZZO:  We would likely seek leave of the Commission to file a half page document today, just indicating that we would like the model term inserted into the Waste Management Award, for the reasons already outlined in out submissions filed on the 21st.




MR IZZO:  I think that aligns with AiG's position, in any event.




MR IZZO:  And I suspect the Waste Management Award would then probably fall into line with the other 17 that you mentioned earlier today.


JUSTICE ROSS:  Yes.  We've – I've noted that the – that's exactly what Ai Group did do.  They filed a submission and submissions in reply to that matter are due by 4 pm on 25 September, so there's plenty of time.  And we had directed all interested parties to file submissions by 4 pm on 21 August but we haven't heard anything from the Unions either, because the issue we raised in the July decision was the meaning of the current clause, really.


Because it says, they should pay the money due, as soon as possible.  But there's no timeframe prescribed so it's a meaningless provision, and on its face, maybe unenforceable.  And that was the issue we were trying to draw to people's attention.  Ai Group's responded to that by saying, well, yes it doesn't specify a time period which is inconsistent with – well, goes to the regulatory gap that we raised in an early decision and on that basis, they seek the model term.


So I think it'll just now go in with the other group and parties will have an opportunity to file submissions in reply by 25 September.  By all means file you half page as soon as you can and we'll post that on the website so people are aware of your position.


Does any other employer organisations have an interest in the Waste Management Award?  Natroads?  No?


MR JOHNS:  Yes.  We do have some members who fall under it, your Honour, so we'd support the statements already made by – made to you and the comments you've made, your Honour.


JUSTICE ROSS:  Okay.  And I think the Unions would have a direct interest, and there may be others, but the AMWU, the AWU and the TWU are probably the three.  NO doubt, the CFMEU will be in there somewhere but – in one of your many divisions now but I don't want to constrain it to those three.  The more, the merrier.


Again, it's also the sort of thing that may lend itself to some discussion because there are clear deficiencies in the current provision and you may be able to reach an agreement about how you deal with that matter.


Was there anything else?


Yes, Ms Bhatt?


MS BHATT:  Your Honour, if I may.


In relation to the Ai Group claim, we have no difficulty with the course of action that your Honour's proposed.  In relation to the Timber Award, if I may just briefly address these.  I'm reflecting on the position of the parties, as they were, in September of last year when I last spoke to you about this.




MS BHATT:  I'm perhaps less optimistic than I was then about agreement being reached, in relation to this award, but I think that it may be one where the parties might be assisted by conciliation before the Commission, to discuss some of the issues.  And so if liberty were granted to request that, perhaps through your Honour's chambers.


JUSTICE ROSS:  Certainly.


MS BHATT:  Once we've had some further discussions amongst ourselves, that might assist in moving the matter along.




MS BHATT:  And lastly, in relation to the Aluminium Award, which I know is not listed today, as such, but I note that the decision that was issued recently by the Commission, dealt with that award.  It's an award in which Ai Group has an interest.  Our submissions did not deal with it.


JUSTICE ROSS:  No.  Let me deal with that now.


We'll be issuing a decision later this afternoon in relation to all the matters arising in July.  We note that you've not said anything but propose to provide the parties to that award – just bear with me for a moment – with a further opportunity till Friday next week, to say what you want to say about it.


Because you'll recall – and look, Ai Group's not alone in this regard, there was no response to Alpine Resorts, Rail, et cetera.  In aluminium, we had indicated that if Ai Group and the AWU wish to press their proposed variation, that they were to file a submission on that by  4 pm on 21 August.  We didn't receive it but we're not going to give you the drop-dead proposition.  We'll give you – the intent is to give you until 2 pm next Friday to let us know what you're planning to do.


MS BHATT:  And we're grateful for that, your Honour.  We hadn't exhausted our consultation process.  We're trying to ascertain whether it's necessary for us to press that variation, so ‑ ‑ ‑


JUSTICE ROSS:  No, no.  That's fine.  And look, if that becomes an issue by that timeframe, just keep us informed about where you're up to, that's all.


MS BHATT:  Thank you, your Honour.


JUSTICE ROSS:  Anybody else?  Anyone interstate?  All right.


MR JOHNS:  Yes, your Honour.




MR JOHNS:  David Johns, Natroad.


JUSTICE ROSS:  Yes.  Yes, Mr Johns.


MR JOHNS:  Your Honour, I note your comments about continued discussions with the opposing party.  Just for the record, I have noted that from my previous discussions with the TWU, that is actually the reason why we've brought the applications forward, is they've made it pretty clear that they're not open to the variations proposed.




MR JOHNS:  So whilst we will continue to do everything we can to progress the matter, rather than actually having to go to a contested hearing, based upon previous responses I don't hold out much hope in that line.


JUSTICE ROSS:  No, that's fine, Mr Johns.  I don't expect it will be a sparkling success in every case.  And I imagine there'll be some matters that will require a determination.  But because we've got a program set in place and sometime before the matter reaches the determination point, it was really to encourage parties to take that opportunity, if they haven't already, to explore their capacity to reach any measure of agreement in it.


But I appreciate, in some cases, that's going to be challenging.


All right.


Yes, Mr Maxwell?


MR MAXWELL:  Sorry, your Honour.  I was waiting for the HIA to say something but I'm not ‑ ‑ ‑


JUSTICE ROSS:  So you could attack it or?


MR MAXWELL:  No, no.  Just in regard to the submission that was filed, they did refer to an outstanding issue in regard to the Construction Award, which I think is dealt with in section 1.3 of their submission.


MS REGAN:  Sorry, I can't hear you in Brisbane, Stuart, I'm sorry.


MR MAXWELL:  Is that better?


MS REGAN:  Yes, that is a little bit, yes.  Thank you.


MR MAXWELL:  Okay.  Your Honour it's in regard to, I think, the frequency of payments issue and we understand that that matter has been referred or is sitting with this Full Bench.




MR MAXWELL:  But there's been no directions issued in regard to that.


JUSTICE ROSS:  No, that's right.


Look, the frequency of payment issue, we'll address once we're finished tidying up the payment on termination issue.  If there's an interaction, then parties should bring that to our attention when we're dealing with this matter but we're planning on doing it in sequence, in large measure, to manage the resource implications for the parties.


So we'll finish all of the issues in relation to payment on termination and then we'll go through a process about how we're going to deal with the frequency of payment issues.  I don't anticipate that would occur until early next year and would probably start with us identifying what the issues are and in what awards and trying to get an information base.


I imagine if we're in arbitral proceedings about that, it's more likely to be middle of next year than before, if that assists in planning.  But we're trying to manage it with the calendar for the substantive issues Full Benches and the finalisation of the review in the exposure drafts.  That's not to say that if there's some burning issue about one of these matters, that a party can, of course, bring it forward and it can be dealt with earlier.


But at the moment, that's the current intention.  Okay?


All right.  Nothing further?  Thanks for your attendance.

ADJOURNED TO A DATE TO BE FIXED                                       [9.53 AM]