TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048923-1

SENIOR DEPUTY PRESIDENT WATSON

AM2013/5

s.158 - Application to vary or revoke a modern award

Application by Broomhead
(AM2013/5)
Building and Construction General On-site Award 2010

(ODN AM2008/15)
[MA000020 Print PR986361]]




Sydney

10.04AM, TUESDAY, 24 SEPTEMBER 2013

Continued from 30/05/2013

PN177

THE SENIOR DEPUTY PRESIDENT: For the sake of brevity, I'll record that we have in attendance in Sydney Mr Maxwell from the CFMEU, Ms Cottam from the AWU and Ms Patterson from ABI. In Canberra, Mr Calver from the MBA; Queensland, Mr Fraser from the TMAA and Mr Broomhead. In South Australia, Ms West from the South Australian Chamber. The matter has been listed for further hearings pursuant to my statement and directions of 29 August 2013 in relation to the matters within that statement. Unless anyone has a contrary view, I would propose to hear any further submissions in support of written materials received. Has anyone have any contrary view to proceeding in that way? Very well, perhaps I'll start with you, Mr Maxwell.

PN178

MR MAXWELL: Thank you, your Honour. In the statements that you issued on 29 August 2013, you identified a number of matters to be determined today. They deal with the standing of Mr Broomhead to make his application; whether the award should be varied if warranted on your own motion in the absence of standing of Mr Broomhead; and if AM2013/18 proceeds, whether that an AM2013/18 should be heard together a program for substantive written submissions and hearings in relation to the matters. Your Honour, in our correspondence dated 13 September 2013, the position of the CFMEU is set out. We say that in regards to the standing of Mr Broomhead we believe he does have standing to make the application, based on conversations that I have had with Mr Broomhead personally.

PN179

However, as noted at the top of page 2 of our correspondence, it's up to the Commission to be satisfied that Mr Broomhead has worked as a traffic controller in the building and construction industry. We set out in the correspondence issues we believe would be appropriate to assist the Commission in determining that matter - particularly the identification of particular jobs that Mr Broomhead may have worked on and any evidence in regard to contributions to construction industry (indistinct) long service leave schemes, redundancy funds or superannuation funds. We note that there are similar requirements to establish whether a person has worked in the industry, contained in clause B1.8 of the award that deals with determining whether or not a person is a new entrant to the industry or not.

PN180

They identify the evidence in regard to redundancy funds and superannuation funds as being evidence. So the position of the CFMEU is that to a certain extant it's up to Mr Broomhead to prove to the satisfaction of the Commission that he has indeed worked in the building and construction industry, but we believe he has. In regard to the second issue, about whether the Commission should act on its own motion if warranted to vary the award, we say that as a significant number of the matters raised by Mr Broomhead's application are also raised by the application by the CFMEU. We submit that if the Commission determines that Mr Broomhead does not have standing, then the matters identified by our application can proceed.

PN181

But in the absence of any organisation supporting the continued hearing of Mr Broomhead's matters by the Commission on its own motion, we believe that that should not occur. If we do so on the basis of, I suppose, the efficient operation of the Commission and to ensure that the Commission doesn't go chasing matters where there is little or no support. In regards whether the 2013/5 proceeds, whether that should be heard together with 2013/18, we submit that if 2013/5 does proceed it should be heard with 2013/18. We do so on the basis of the efficient operation of the Commission and hearings. There will be a substantial amount of evidence and material that will be common to both matters, and it would be an efficient process for the Commission to hear the matters together.

PN182

In regard to the programme for substantive written submissions in hearings, in our correspondence we set out that we believe that matter should be dealt with by a conference of the parties, once the issue of standing has been dealt with and determined. We do note that this is the first mention of our application, being AM2013/18. There are some issues in there that we would have thought would be non-controversial, but given the attitude of a number of the employer organisations to our applications that may not be the case. But we believe that there will be benefit in the Commission chairing a conference of the parties to find out if there is indeed any common ground that can reduce the necessity for detailed written submissions that may not be necessary.

PN183

I should point out in regard to the issue of coverage that clearly there is a question about the extent to which the award covers traffic control work in the building and construction, and metal and engineering construction sectors. There is the submissions, I believe, of the HIA when on the last occasion we were also mindful that there is a decision to see a member of the Commission where the issue of coverage has been raised as well, which we would alert the Commission to an appropriate time.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN185

MR MAXWELL: In regards to submissions of the other parties, we believe there is nothing there that should warrant for the Commission departing from the position of the CFMEU being adopted by the Commission. If the Commission pleases.

PN186

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Ms Cottam.

PN187

MS COTTAM: We endorse the position of the CFMEU and the approach that they've suggested. We think that's sensible.

PN188

THE SENIOR DEPUTY PRESIDENT: Thank you. I'll go to Queensland now. Mr Broomhead. Yes, Mr Broomhead, is there anything further you want to say in relation to the matters raised in my statement and directions?

PN189

MR BROOMHEAD: Only that, your Honour, the reference to the pay slips. Those pay slips that were submitted are pay slips under an award, which is a building award, with respect to the Commission. That's the only thing that I would like to answer, your Honour. The only other thing is that on every construction site that we work on, we are inducted onto that site. It is not the employees that pick whether we're working on a construction site or whether it's a civil site or whatever. We're employed by a particular company who comes under an award. When we go onto a construction site it may be a civil site, it may be a council, it may be an electrical trade site.

PN190

We can work under the award that we're employed under. We really have no control over those awards. We either accept the job or we don't accept the job. So the whole concept of standing is a bit erroneous in the fact that the (indistinct) to follow and we just accept the job and it's paid accordingly, whether that's (indistinct) or whether it's award or whatever it is. That's the one (indistinct) registered EBAs and induction numbers such as (indistinct) which is 1633 to be my induction. But that's all, your Honour.

PN191

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Broomhead. Mr Fraser. We'll stay in Queensland, I think.

PN192

MR FRASER: Thank you, your Honour. Just referring back to our filed submissions on 13 September 2013, it's the TMAA's position that the evidence presently before the Commission doesn't demonstrate Mr Broomhead has standing to bring this application. I think that that position is supported by a number of the employer associations on that fact, and I presume that Ms Patterson and Mr Calver will go to that also in their submissions. But in relation to the standing, the (indistinct) been provided simply do not demonstrate to the TMAA's satisfaction that Mr Broomhead is currently covered by the award. For that reason the TMAA's submission is that there is no standing for Mr Broomhead to bring the present application.

PN193

Turning to the second point of your Honour's directions, in relation to whether the Commission should move on its own motion, the TMAA supports the initial submission of the MBA - there isn't currently demonstrated any sort of anomaly that needs to be corrected. The TMAA supports the submission that the Commission act with a degree of caution when exercising its own discretion, with respect, in that matter. In relation to whether the applications by the CFMEU and Mr Broomhead's application should be heard together, if it the case that the Mr Broomhead is found to have standing and his application is to proceed then the TMAA would obviously support the efficient operation of the Commission.

PN194

However, it is the TMAA's position that the matters raised in both the CFMEU's application and Mr Broomhead's application would be best dealt with during the four-yearly reviews to commence next year. With respect to programming, if it is the case that the Commission feels that perhaps it should move ahead, we would obviously agree to conferences in relation to that just to assist with the efficient operation of the Commission.

PN195

THE SENIOR DEPUTY PRESIDENT: Anything further, Mr Fraser?

PN196

MR FRASER: If I may, your Honour, just moving on to touch on one point in relation to Mr Broomhead's application. With the TMAA's submissions on 13 September, it included a letter from Mr Stephen O'Dwyer, the president of the Traffic Management Association. Annexed to that latter was an extract from a report that was prepared by Austroads in March last year setting out the various different classifications that exist across jurisdictions of traffic controllers. It's the TMAA's position that while the process of trying to harmonise traffic control classifications across jurisdictions is still occurring, the issue of certificate allowances isn't making any changes - obviously notwithstanding the requirements of 154 of the Fair Work Act.

PN197

It would be a bit premature on the TMAA's submission, it still the case that there is significant divergence between requirements, even if it was taken at face value across the different states. The TMAA just wanted to raise that issue - that there is significant differences amongst the jurisdictions in relation to licensing traffic controllers. That was it for TMAA, your Honour.

PN198

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Fraser. I'll go to South Australia, Ms West.

PN199

MS WEST: Thank you, your Honour. We lodged our written submissions on 13 September and we intend to rely on these. We support the submissions of the TMAA and we have nothing further to add, your Honour.

PN200

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Ms West. Mr Calver.

PN201

MR CALVER: Thank you, your Honour. Going first of all to Mr Maxwell's remarks, an advocate of his experience should know that citing conversations and the hearsay application of those is unacceptable. That's especially in light of the fact that the CFMEU written submission acknowledges:

PN202

That it is up to Mr Broomhead to provide sufficient evidence to demonstrate that the work he performed was indeed in the building and construction industry.

PN203

To recite conversations that Mr Maxwell has had with Mr Broomhead is completely unacceptable, particularly as this is a statutory bar - a hurdle which must be jumped. We note Mr Broomhead in his appearance he had the ability to render those matters which the CFMEU put in their written submission as substantiating the proposition which we just put to the Commission, and he's done none of those things. Those objective matters that are mentioned in the CFMEU submission were: providing documentary evidence concerning registration with any of the construction industry (indistinct) long service schemes; or documentary evidence concerning contributions into an approved industry superannuation fund or redundancy fund.

PN204

Then there's acknowledgement that it needs to be the type of information needed to demonstrate that an employee is not new entrant to the industry. Mr Broomhead had that opportunity when he addressed you. He dealt with the pay slips. We've suggested that they do not show the necessary levels of information of the kind that the CFMEU acknowledge should be before the Commission. His remarks don't show that standing. When he said earlier, "We accept the job or don't," the "we" could refer to his corporate entity, and there is still some doubt as to whether or not that corporate entity is engaged or Mr Broomhead personally.

PN205

For all those reasons and for those reasons set out in our submission of 13 September, we are not able to agree with Mr Broomhead that he has standing to bring the application. So far as the CFMEU is concerned, we oppose that application preceding. As we have indicated in our written submission, there was nothing to suggest that matters that have been raised in that application are not more appropriately raised in the four-yearly review, which is just around the corner. We note that there are no exceptional circumstances which appertain currently. Mr Maxwell indicated the HIA view, and I had the benefit of a conversation with the HIA this morning. I don't say that to adduce evidence but to the fact that - - -

PN206

THE SENIOR DEPUTY PRESIDENT: Having criticised Mr Maxwell, you should be careful.

PN207

MR CALVER: Exactly. Absolutely, your Honour. But I must say that the HIA take their view from a decision which I'm afraid that I don't have copies of for the Commission. It was Mark Badman v Altus Traffic Pty Ltd - - -

PN208

THE SENIOR DEPUTY PRESIDENT: That's O'Callaghan SDP's decision.

PN209

MR CALVER: Yes. 5 July 2013, where he takes the very practical view in paragraph 48 of that decision - do you have that view, your Honour?

PN210

THE SENIOR DEPUTY PRESIDENT: I don't have it on me, no.

PN211

MR CALVER: No. At paragraph 48 he says:

PN212

I am inclined to the position that the traffic management classification can apply to both building and civil work, but does not describe of itself work which must be building and/or civil work.

PN213

We agree that that is the position as reflected in the award. We believe that most instances of traffic control work can be categorised under the particular classification applied by the award in that regard. That is in schedule B 2.2(d). Otherwise it would be classified as labouring work. That finding by O'Callaghan SDP we rely on to indicate that we do not believe that there is an ambiguity or an anomaly, and that the matters that were before him were raised on the particular evidence in the Altus case. So nothing in respect of that matter or in respect of the proposition put by the HIA changes Master Builders position in that regard.

PN214

So whilst we are happy to have a conference about (indistinct) buying some aspects of the coverage, we oppose both Mr Broomhead on the basis of standing and substantively, and we oppose the CFMEU's application proceeding. Given that there is no imminent controversy which your Honour is being asked to address, we would respectfully suggest that there is no rationale upon which you should appropriately exercise a discretion to take this matter on on your own account. If it pleases the Commission.

PN215

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Calver. Anything arising from any of those submissions? Mr Maxwell.

PN216

MR MAXWELL: Thank you, your Honour. I believe it's appropriate that perhaps I inform you of the full wording of paragraph 48 of the decision in Mark Badman v Altus Traffic. The decision of O'Callaghan SDP is found in 2013 FWC 4409. In paragraph 48 of that decision, his Honour stated the following:

PN217

I am inclined to the view that the Building and Construction Award provisions reflect a drafting oversight and that to interpret the reference in clause 4.10(b)(vii) as meaning that traffic control work is only covered by the award when it is connected to civil construction work would simply not make practical sense in that the requirement for that traffic control function operates in both sectors of the industry and the classification appears to have equal relevance. Hence, I am inclined to the position that the traffic management classification can apply to both building and civil work but does not describe, of itself, work which must be building and/or civil work.

PN218

Nevertheless, I accept that the provisions of the Award are open to challenge in this respect and, absent the agreement, this could potentially affect around one third of the work done by Altus employees.

PN219

I point out that Altus is a traffic management company. Clearly, there is the decision of a senior member of this Commission, who believes that the current wording reflects a drafting oversight and is clearly of the belief that the award does cover people engaged on traffic control work in the building and construction sector. Our application seeks to make that coverage abundantly clear, and that is what we seek by the application.

PN220

THE SENIOR DEPUTY PRESIDENT: Very well. Yes, I'm able to deal with the matters that have been raised, having regard to the written submissions and the oral submissions in support today. In a statement and directions of 29 August 2013, in relation to the applications in AM2013/5 and 18, I set out a number of matters on which further written submissions were sought and determination was required. Having regard to the further written submissions filed and oral submissions today, I've decided in relation to AM2013/5, I'm not satisfied that Mr Broomhead has established that he has a standing to bring his application in AM2013/5 as an employee or organisation that is covered by the modern award, section 158(1).

PN221

Notwithstanding several opportunities to do so, whilst providing evidence that he has worked as a traffic controller, Mr Broomhead has not brought evidence to establish that he is an employee covered by the Building and Construction General On-site Award in undertaking that work. I have decided not to further consider the application in AM2013/5 to vary the on-site award on my own motion, for several reasons. First, most of the issues raised in the application by Mr Broomhead fall within the scope of the issues raised by the CFMEU application in AM2013/18, and are amenable to submission in that context. Second, to the extent that they did not - most notably in relation to the variation proposed to insert in effect a four-level classification structure for traffic controllers, ranging from a current ECW2 classification through to a level equivalent to ECW8, advanced engineering construction tradesperson requiring a trade qualification plus 12 appropriate modules of additional qualifications or equivalent skills gained through work experience subject to competency testing to prescribed standards.

PN222

I'm not satisfied that the application has sufficient prospect of success to warrant proceeding to hear the application on my own motion, on the basis that I might ultimately by persuaded to vary the award on my own motion. The elements of Mr Broomhead's application to vary, which are not broadly encompassed within the CFMEU application in AM2013/18 would place a very considerable burden on Mr Broomhead to substantiate, which burden is not met by his current submissions, and all other interested parties to respond to, which is not warranted in light of the limited prospect of a variation under section 157 or 160 of the Act. I find that Mr Broomhead has not established the requisite standing to bring his application in AM2013/5.

PN223

I will not proceed to hear and determine the application on the basis of those elements which do not fall within the scope of the CFMEU application in AM2013/18 - (indistinct) satisfy me to vary the award on my own motion in relation to those matters. On the material before me there is no basis to think that there is any reasonable prospect of such satisfaction. The application in AM2013/5 is dismissed for want of standing by the applicant, Mr Broomhead. An order will be issued to that effect. I propose now to adjourn into conference in respect to the programming of the remaining CFMEU application in AM2013/18. I will go off the record for that purpose.

<OFF THE RECORD [10.31AM]
<ON THE RECORD [10.53AM]

PN224

THE SENIOR DEPUTY PRESIDENT: Following that conference, I have decided with the concurrence of at least those parties represented today that AM2013/18 will be relisted for conference in Sydney at 9.30am on Monday, 21 October. Video facilities can be made available to other locations. Any request for a video link should be made within the week so that the Commission is able to make appropriate arrangements. There were various matters concerning the application discussed in the conference, which those who were not here today will be able to discuss with their colleagues in the industry and gain some understanding of the issues that have been raised and which need to be considered prior to and at that conference. Unless there's anything further, I'll now adjourn until the matter resumes in conference at 9.30 on 21 October.

PN225

MR CALVER: Excuse me, your Honour, I don't wish to be impertinent but AM2013/5 was Mr Broomhead's which you have dismissed.

PN226

THE SENIOR DEPUTY PRESIDENT: Yes.

PN227

MR CALVER: AM2013/18 not 3 was the CFMEU application, which I believe is resuming.

PN228

THE SENIOR DEPUTY PRESIDENT: Thank you for that. I'll have the transcript corrected. Reference to the matter number will be entirely to AM2013/18. You're quite right and I thank you for correcting that, Mr Calver. We will resume on 21 October. I'll now adjourn.

<ADJOURNED UNTIL 9.30AM, MONDAY, 21 OCTOBER 2013 [10.56AM]