TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1048150-1
SENIOR DEPUTY PRESIDENT WATSON
s.158 - Application to vary or revoke a modern award
Application by Broomhead
Building and Construction General On-site Award 2010
[MA000020 Print PR986361]]
11.05AM, THURSDAY, 30 MAY 2013
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE
THE SENIOR DEPUTY PRESIDENT: Good morning - although it's approaching the afternoon. I apologise for the difficulties this morning. Rather than go to each of you, I will run through the appearances and they'll be recorded unless someone advises me otherwise. In Brisbane, we have Mr Broomhead, the applicant, and Mr Hadley and Mr Fraser from the TMA of A.
MR J. HADLEY: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: Good. Thank you. In Canberra, we have Mr Calver and Ms Adamcewicz from MAA, with Mr Calver from MBA. In Adelaide, Mr Wallgren from Business South Australia. In Sydney, Ms Angus from the AWU; Mr Kentish, CEPU; Mr Maxwell, CFMEU; Ms Adler, HIA: Ms Jenkins, ABI. Have I missed anyone or got anything inaccurate?
MR A. KENTISH: Your Honour, Mr Kentish here. Today I also appear on behalf of the AMWU, if it pleases.
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Mr Kentish. Very well, we'll dispense with appearances. Now, I put the matter on this morning essentially for programming, but I did want to clarify some matters with you, Mr Broomhead, in the first instance.
MR J. BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: Can I just clarify in what capacity you are bringing the application. The application is brought on its face by you, Mr John Broomhead, but then at the end of the application it's indicated that - sorry, this is on page 2 of the application - "Capacity/position: HSET manager." Is the application brought by you as an individual or on behalf of some entity for which you are the HSET manager?
MR BROOMHEAD: I'm the HSET manager for Oulla Pty Ltd and I'm also bringing this is as an individual licensed traffic controller.
THE SENIOR DEPUTY PRESIDENT: Very well. For what Pty Ltd?
MR BROOMHEAD: Oulla, O-u-l-l-a, Pty Ltd.
THE SENIOR DEPUTY PRESIDENT: I still require clarification. Is the application being brought by you in a personal capacity or by you in a personal capacity and on behalf of Oulla Pty Ltd?
MR BROOMHEAD: I presume it would be by me in a personal capacity.
THE SENIOR DEPUTY PRESIDENT: Very ell. In that context, you say it's brought on the basis that you are a licensed - - -
MR BROOMHEAD: Traffic controller.
THE SENIOR DEPUTY PRESIDENT: - - - traffic controller. The application is brought to vary the Building and Construction General On-Site Award 2010. Are you covered by that award? Do you undertake work within the scope of that award or within the coverage of - - -
MR BROOMHEAD: Yes, I do, your Honour.
THE SENIOR DEPUTY PRESIDENT: Very well. The application is brought under - again the application indicates sections 157 and 160. Can I get clarification on that. Section 157 is an application to vary modern award minimum wages if justified by work value reasons. It appears that you are seeking to vary wage rates for traffic controllers and, in addition, to achieve the modern award's objective. Section 160, on the other hand, is a variation to remove an ambiguity or uncertainty or to correct an error. I don't think 159 is relevant. Can I just get clarification on what basis you're seeking to have the award varied?
MR BROOMHEAD: The current award, your Honour, only has traffic controllers. They don't have licensed traffic controllers, as such.
THE SENIOR DEPUTY PRESIDENT: No. Sorry. Are you seeking to bring the application on the basis of the variations being necessary to achieve the modern award objective or on the basis of removing an ambiguity or uncertainty or correcting an error or, in relation to wage rates, for work value reasons?
MR BROOMHEAD: It's to remove ambiguities in the award, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes. Well, the wages element would need to be referenced to work value reasons, but you say otherwise it would be in relation to removing ambiguities, uncertainties or correcting errors?
MR BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: I notice in the application it is stated that variations are sought to the MA20, the Building and Construction General On-Site Award and similar awards. I wonder if you could clarify that. Are you seeking to vary the Building Award or is there some desire to vary other awards?
MR BROOMHEAD: There's no desire to vary other awards because we don't know of any other awards that have got traffic controllers in, to the best of my knowledge, your Honour.
THE SENIOR DEPUTY PRESIDENT: Well, the Security Services Industry Award 2010 Coverage clause includes, in the security services industry, traffic control when incidental and associated with the activities referred to in - if I can use the collective term - the substantive coverage of that award.
MR BROOMHEAD: I don't believe they're licensed traffic controllers, your Honour.
THE SENIOR DEPUTY PRESIDENT: So your application is directed only to the Building Award?
MR BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: Very well. That's all I require by way of clarification.
MR R. CALVER: Your Honour, in that regard we would seek to make submissions to you preliminarily about standing and seek to have the application dismissed for lack of standing, if it please the commission.
THE SENIOR DEPUTY PRESIDENT: Yes. Are there any other preliminary applications or views?
MS M. ADLER: Your Honour, it's Ms Adler in Sydney. We just would seek clarification as to how the application is intended to apply in the award. Our understanding is that the way the award is currently structured, the traffic management and the classifications pertain only to civil construction, whereas it's unclear from the application as to how the variation is intended to apply and if it's intended to apply more broadly than that.
THE SENIOR DEPUTY PRESIDENT: Yes. Anyone else?
MR MAXWELL: Your Honour, Mr Maxwell in Sydney. We would probably wish to make submissions in response to the submissions of Mr Calver and Ms Adler. We'd also wish to make submissions in regard to whether the commission should act on its own motion pursuant to section 157(3).
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Anyone else? All right, well, perhaps I'll start with you then, Mr Calver.
MR CALVER: Thank you, your Honour. The matters that you went to in relation to seeking clarification from Mr Broomhead immediately raise the issues of the capacity under which the application is brought. I refer you to the table, your Honour, under section 158 of the Fair Work Act. If I can draw your attention to that table, your Honour. That table sets out who may apply for the making of a determination varying or revoking a modern award under section 157.
THE SENIOR DEPUTY PRESIDENT: Yes.
MR CALVER: In this case, one would imagine that Mr Broomhead's application could possibly be supported by either item 1 or item 3. We don't believe that either of those items on the face of it, even in the face of the clarifications which you have obtained from Mr Broomhead, apply. Both items state that an application may be made by -
an employer, employee or organisation that is covered by the modern award; or an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.
In this instance it's certainly far from clear whether Mr Broomhead falls under any of these categories. Although Mr Broomhead, in showing his status on the application, states that he is an HSET manager - and you've clarified with him that works for Oulla Pty Ltd, I believe - his application is made as an individual and thus he is not an applicant for a company or an organisation covered by the award.
THE SENIOR DEPUTY PRESIDENT: Just one minute. Doesn't (1)(a) say "an employer, employee or organisation that is covered?"
MR CALVER: That's right, your Honour. I believe that Mr Broomhead is not making the application on behalf of an employer. I just traversed that matter.
THE SENIOR DEPUTY PRESIDENT: That's correct.
MR CALVER: Yes.
THE SENIOR DEPUTY PRESIDENT: My understanding is he's making the application as an employee who undertakes work within the coverage of the award.
MR CALVER: Yes, and I'm going to that, your Honour.
THE SENIOR DEPUTY PRESIDENT: Okay, yes.
MR CALVER: As it appears, he's not representing an employer or an organisation covered by the On-Site Award. The only other category, as you say, your Honour, is that he is an employee. We say that as Mr Broomhead describes himself as a manager, he appears to be not covered under the On-Site Award. In pressing that, we note that he would not have been covered as a manager by the main precursor awards, the National Building and Construction Industry Award 2000 and the Australian Workers Union Construction and Maintenance Award 2002 because they did not cover managers and neither does the On-Site Award.
The Macquarie Dictionary defines a manager as someone "charged with the management or direction of an institution, a business or the like" and is incapable of being covered under the modern award.
THE SENIOR DEPUTY PRESIDENT: Can I say, Mr Calver, that I don't doubt the proposition that if Mr Broomhead is a manager, that he would not be covered by the award; but the question which arises and maybe we need clarification from Mr Broomhead - - -
MR CALVER: Yes.
THE SENIOR DEPUTY PRESIDENT: When he says that he is a licensed traffic controller and I think answered that he undertook work within the coverage of the award, whether he undertook work as a traffic controller, not as a manager, as it were.
MR CALVER: Well, your Honour, if he's a traffic controller, he would be covered under schedule B.2(d) as a construction worker level 2 or an engineering construction worker level 2, not a category which applies to managers.
THE SENIOR DEPUTY PRESIDENT: Yes.
MR CALVER: So by describing himself as a manager, ipso facto he would not be under the only recognised category of a traffic controller under the award. In so describing himself, even though he says he might undertake traffic controlling work, if his position and the majority of the work that he does is related to him as a manager, then he would not be covered by the award. Therefore, even though he undertook as part of his role as a manager, some traffic controlling work, he would not be covered by the award in the formal sense.
THE SENIOR DEPUTY PRESIDENT: Yes.
MR CALVER: Basically those are the submissions of Master Builders at this point, because it does appear on the face of it that he has no standing to bring this matter.
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Ms Adler, what was the issue you wanted to raise?
MS ADLER: It's unclear from the application the intended scope of the variations, so our reading of the award and those classifications Mr Calver just referred to in schedule B, are only relevant in civil construction and do not apply in the general and construction sector as classified under the Coverage clause in the award. It's unclear on our reading of the application whether the variations sought are to apply as the award is currently structured or to expand it to apply generally across all award coverage.
THE SENIOR DEPUTY PRESIDENT: Why do you say it only applies to civil? There's a bloke standing outside in the street right next to me holding a red sign that says "Stop". He has been there for some considerable time, or he and others, and has a tendency to disrupt my entry into the carpark here. Would he be - - -
MS ADLER: Your Honour, I take you to clause 4.10(b)(vii) of the award which says "traffic management in or in connection with work", and to clause 4.10(b)(i) - - -
THE SENIOR DEPUTY PRESIDENT: 4.10(b)(i), yes.
MS ADLER: It refers to certain civil works.
THE SENIOR DEPUTY PRESIDENT: All right. Well, I'll go and ask that chap what he's doing later.
MR BROOMHEAD: Ask him whether he's under the Civil Award or the Building Award. He wouldn't know.
THE SENIOR DEPUTY PRESIDENT: 4.10(b)(i), okay, yes. So the traffic management scope is limited, you say, to 4.10(b)(i).
MS ADLER: That's right, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, okay. I have that. I might go to you at this point, Mr Broomhead, just for clarification on your standing to bring an application. I think that will involve any response you have to Mr Calver and, for my part, some better explanation - if it comes to the point of requiring evidence, we'll get there at some point - some clarification of your role in the work undertaken under the award or covered by the award; so if I can go to you, Mr Broomhead.
MR BROOMHEAD: Yes, your Honour. There's nothing to say that you can't be a director of a company and still be a traffic controller. I mean, at the end of the day I still get paid under the award working for a particular company. I can still be a director of a company and I can still be an HSE manager or a HSETC manager or a QC manager or whatever I want under someone else. What I determine as myself is up to me - but under the award that I work and in the last two and three weeks that I've worked as a traffic controller for a company under this award.
THE SENIOR DEPUTY PRESIDENT: You work for which company as a traffic controller?
MR BROOMHEAD: Hervey Bay Traffic Control. It's under the collective agreement, 2009.
THE SENIOR DEPUTY PRESIDENT: I'm just trying to work out exactly what your status is, Mr Broomhead. You're HSET. That's health, safety, environment and training manager, is it? Sorry, Mr Broomhead. Are you - - -
MR BROOMHEAD: Yes, I do, your Honour. I work as both. My company, Oulla Pty Ltd, also works in the area of traffic control auditing. I have also worked for Hervey Bay Traffic Control and I also work for myself for other companies, like Global Traffic Control.
THE SENIOR DEPUTY PRESIDENT: So you have several sources of employment?
MR BROOMHEAD: Yes, your Honour, because the industry is based on casual. As I put out in the application, companies may have 122 or 123 people working for them, but only four of them were permanent. The rest were basically casual. The whole industry is casual.
THE SENIOR DEPUTY PRESIDENT: Yes. Very well.
MR CALVER: Your Honour, may I say that assertion by Mr Broomhead is far from satisfactory, if it please the commission, because it appears that his company is engaged to undertake the work from what he just stated, not him as an individual. If it's his company that's engaged, then he is not covered by the award. Neither is that company.
THE SENIOR DEPUTY PRESIDENT: I think Mr Broomhead said that he was employed by traffic control companies on a casual basis from time to time, undertaking work as a traffic controller under the award. Is that the position as you put it, Mr Broomhead?
MR BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Calver? I can understand there might be an issue of evidence if that's contested, but - - -
MR CALVER: Well, your Honour, it has taken some considerable time for us to reach the point where it's now asserted that Mr Broomhead has the capacity, which is not evident from the face of the application, to bring this matter forward. This is very serious and probably will be very time-consuming if contested. This preliminary hurdle is a very important matter and we don't seek to impugn Mr Broomhead at all, but, as a matter of clarity, he would not be covered by the award if his principal occupation was not traffic controller; if he was a manager or if his company undertook the work.
From your direct question to him, he has now asserted that the position does appear to give him coverage. I would respectfully ask Mr Broomhead to provide evidence of that matter to the commission, perhaps by way of a pay slip or other evidence to show that, given that it has taken us half an hour to reach the point where a direct question from you was responded to to establish his status in this matter; a matter of some gravity.
THE SENIOR DEPUTY PRESIDENT: Yes.
MR BROOMHEAD: I can give you a pay slip, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
MR HADLEY: If it please your Honour, Mr Hadley, representing the TMAA, which is the peak body of traffic control companies. If it may help, we have instructions from Hervey Bay Traffic - which is a member of ours, your Honour, at which Mr Broomhead did work for a short period of time but is now no longer a worker there. I am still struggling to understand which company Mr Broomhead is acting as a traffic controller.
THE SENIOR DEPUTY PRESIDENT: It appears that he acts in that capacity from time to time on a casual basis.
MR CALVER: But, your Honour, if it was a prior engagement and he is now not engaged in that capacity, with respect, he is no longer covered by the award.
THE SENIOR DEPUTY PRESIDENT: That would suggest that a casual employee who has sought to make an application to vary the award might drop in and out of standing to make and then pursue the application.
MR CALVER: With respect, your Honour, I would believe it would depend upon the nature of that casual engagement. If the evidence is, and it appears to be, that the person holds another occupation - in this instance a manager of an identified company - then at the point when they are undertaking that work, they are not covered by the modern award. At the point when they're undertaking casual work as a traffic controller, they may be covered by the award.
If the nature and extent of the work undertaken is that there is an ongoing casual engagement with a roster arrangement, then surely, yes, they would be covered; but if it is highly intermittent employment and other work is undertaken, then in our submission they would not be covered by the award, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Mr Maxwell, did you want to say something in relation to this issue?
MR MAXWELL: Yes. Thank you, your Honour. Perhaps I'm in a better position to Mr Calver, in that I actually contacted the applicant to find out what his status was prior to the hearing. My understanding of that - - -
MR CALVER: Well, that's hearsay. We would seek to exclude any conversation that you had with Mr Broomhead, as hearsay of the worst kind.
THE SENIOR DEPUTY PRESIDENT: Well, we'll hear from Mr Maxwell and we'll hear about the conversation. If there comes an evidentiary point, we'll deal with that.
MR MAXWELL: Thank you, your Honour. From the conversation I had with Mr Broomhead, he confirmed to me that he was a casual in the building and construction industry that worked as a traffic controller. On that basis as an employee covered by the award, he would have standing to make the application. However, we also point out that when you look at the issues that have been raised by this application, there is clearly, we submit, issues in regard to whether or not the award meets the modern award objective.
If the commission believes that there is an issue to be considered in that regard, then the commission has powers pursuant to section 157(3) of the Fair Work Act to act on is own motion. We submit that given the matters involved in this application, the commission should act pursuant to those powers. In regard to the submissions of Ms Adler, traffic controllers are not limited to civil construction. It's also a part of the general building and construction, people working as CW2s on construction sites also do traffic control work. Therefore, the application would be in regard to the whole of the work covered by the award, not just civil construction.
THE SENIOR DEPUTY PRESIDENT: Yes.
MR MAXWELL: I think at this stage I'll just leave those submissions there, your Honour.
MS Z. ANGUS: Your Honour, from an AWU perspective - and I just endorse the comments made by Mr Maxwell - the applicant is clearly not familiar with the workings of the Act and some of the threshold requirements, which is unsurprising; but we'd suggest to you, Commissioner, that the commission should operate in a manner having regard to equity and the substantive merits of the case. In our submission, the applicant raises a number of issues which draw attention to the deficiencies and the gaps in the On-Site Construction Award and in that sense the award is not fulfilling the modern award objectives.
On that basis, if there are any issues arising from Mr Broomhead's right to bring a claim, then it's appropriate in these circumstances that the commission assist the applicant in whatever way appropriate. If that involves bringing the application on its own motion, then we would endorse that course of action.
MR CALVER: Your Honour, we can't let the proposition stand as asserted by Ms Angus that there is evidence before you that the award is not meeting the modern award objectives in the current context, and that cannot be the basis upon which this matter should proceed because there certainly is no evidence before you - there is no matter that has been put to the commission - which would go to that particular point and it should be disregarded.
THE SENIOR DEPUTY PRESIDENT: Mr Broomhead, do you want to respond to anything Ms Adler said or anything else that has arisen?
MR BROOMHEAD: Well, your Honour, if the commission wants to act on its own accord, I suppose it has the right to, but at the end of the day - I mean, whether it's myself as an individual, but as a casual employee in an industry that has now become so casual it's unbelievable, what they're all saying is that I can't represent myself to have a fair hearing in a commission because every time someone doesn't want to employ me, I can't be represented, and yet I still work in that industry. I still pay all the licences in that industry and because I'm also a director of a company, that I can't be represented.
I mean, it's a long bow to draw to turn around and say just because I have other industries that I work in - and I don't work in any other industries. I actually work under this industry all the time, but in different capacities. I mean, that's a long bow, isn't it? The award is very, very clear. It says "an employee or an employer". It doesn't define exactly what those are. It defines it as an employee - I'm an employee in the construction industry. I'm also an employee in the construction industry with licensed traffic control.
We're trying to bring to the commission and identify with them that there are inadequacies in the present award that doesn't address the costs that are being incurred by employees and the fact that there's no licensed traffic controllers as such, but everyone seems to be - pass costs on it. Particularly some of the building industry bodies are quick to make sure that costs come down to us rather than the employers.
THE SENIOR DEPUTY PRESIDENT: But your application goes well beyond that, seeking to place into the award - or place traffic controllers within six award classifications, all of which are considerably above the current classification.
MR BROOMHEAD: That's because, your Honour, at the present stage we have a new area that has just been developed in recent times where there are licensed traffic controllers. Up to that stage, we didn't have licensed traffic controllers. What happened is to address the amount of people getting killed - and there's 22 in the last 10 years that have been killed on the roads - they've tried to address the situation by bringing in licensed traffic controllers and improving the training, improving the safety aspects of it, and to do that they've upped the ante on training to make sure that these people are now at an award level and also at basically a trade level of training to make sure that the system improves.
Now, the Queensland government, as well as the South Australian government, the Western Australian government, all those have all brought in this training regime to do that. What we're saying is the award now has to change to suit those areas where they've introduced new areas into the award. I mean, a traffic controller nowadays, as stated in the award, can't control traffic because he needs to have a licence once he walks onto a road. If you have a look at the NUTCD, he's not allowed to control traffic any more because he doesn't have a licence. At the end of the day, we're saying that fellow is now relegated to working in carparks or on civil sites. The moment he walks onto a construction area that's a road or a reserve or an area delegated by the NUTCD, he needs to have a licence, and that needs to be in the award that covers him.
THE SENIOR DEPUTY PRESIDENT: Well, he needs to have a licence, but why wouldn't the relevant work and skills be reflected within the existing classification structure?
MR BROOMHEAD: I'll give you an example, your Honour. You can have a painter that paints houses, but does he get paid the same amount as the fellow who paints the Sydney Harbour Bridge? The bloke painting the Sydney Harbour Bridge is on danger money, he's on a different risk assessment. He's also on an entirely different aspect of painting, yet he's still a painter. What I'm saying is that that was put into the award to cover his risk and to cover all the merits that he now works under, but it's still in the award as a painter; but they also included many years ago - back in 1976 - those areas where a painter now is classed as a different category. What we're doing is exactly the same thing.
MR CALVER: Your Honour, may I just interpolate there that there is another provision of the legislation which would proscribe any reference to licensed traffic controllers based in Queensland. That is section 154(1), which proscribes the commission from putting into a modern award terms and conditions of employment that are determined by reference to state or territory boundaries.
THE SENIOR DEPUTY PRESIDENT: Mr Calver, I didn't understand that the application was directed to the provisions to apply only in Queensland.
MR CALVER: In respect of the licensed traffic controller, my understanding is that it only applies in respect of the State of Queensland.
MR HADLEY: Your Honour, Mr Hadley here for TMAA. That is correct, that licensing only applied to Queensland.
MR BROOMHEAD: Can I just say, your Honour, that that's simply not correct. Licensing at this present stage applies in Western Australia. Licensing in South Australia has exactly the same attainment requirements. The R11OHS205A and R11OHS302A all has the same thing, so it's becoming a national accreditation for traffic controllers.
MR HADLEY: Your Honour, at this stage that's not correct. The manual uniform traffic control is only in Queensland.
MR MAXWELL: Your Honour, perhaps if I can jump in here given that everyone else is jumping in as they feel fit. There are requirements for traffic controllers to be ticketed in Western Australia, in the Northern Territory, in New South Wales and Queensland at least - and Victoria. Obviously a lot of these issues go to evidence and there will be a requirement for evidence to be put before the commission in regard to these issues. I think the main issue we need to deal with today is (1) whether there is a valid application and (2) how that application can be dealt with.
I think the extent to which people want to argue about the merits of particular aspects of the application or the arguments being raised, they can be dealt with on another day, if the commission pleases.
THE SENIOR DEPUTY PRESIDENT: Well, I understand that and I'm certainly not going to determine the application today, but can I just address the application a little further with you, Mr Broomhead. You're seeking, in effect, to make 10 variations. Perhaps with the exception of the training costs recovery, variation 2, already dealt with in some way or other within the award and just as one example, the living away from home allowance matter - currently clause 24 of the award deals with such matters. What is it you are seeking? To vary each of those specific clauses to have specific and different minimum terms and conditions applying to traffic control?
MR BROOMHEAD: We're trying to insert into the award licensed traffic controllers, your Honour, as opposed to traffic controllers. Under that licensed traffic controllers, because of the complexities that are happening in the industry in the way the industry is behaving, with their EWPs, some things we're trying to have inserted so that they become part of the standard of award that has to be taken into consideration with every single award as the minimum. The other parts, your Honour, once we've got the licensed traffic controllers in there, we're trying to address some of the inequities that are happening at the present stage with some of these EBAs that are coming through.
For instance, with rain, they're addressing the issue with rain at the present stage, but nobody is getting rained on because they're giving them a plastic raincoat. What we're saying is because of the risks associated with that, we need to address those issues of risks and those things as a tool to control the Workplace Health and Safety Act, because at this stage - - -
THE SENIOR DEPUTY PRESIDENT: Well, the issue of rain would be dealt with under the inclement weather provision in clause 23 of the award, would it not?
MR BROOMHEAD: It only deals with emergencies, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, but it deals with what happens when there is inclement weather.
MR BROOMHEAD: That guy standing out the front there that stopped you from coming in there this morning - if it starts to rain, he's going to be standing there in the rain. That is an emergency works, your Honour.
THE SENIOR DEPUTY PRESIDENT: Well, not if the site ceases because of inclement weather and everyone goes home.
MR BROOMHEAD: But he doesn't go home, your Honour. What we're saying is that when a licensed traffic controller now sets up on a highway or on a road, it takes him an hour to an hour and a half to set up and an hour to an hour and a half to set down. When it starts to hail, as it did a couple of weeks ago, those traffic controllers were left on the road. They just couldn't throw their bat down and walk off the road like everyone else did. They had to stay there and keep controlling the traffic.
What we're saying is that's not emergency works, because what they're doing is they're sending these traffic controllers out into the field and because the machinery around them has got cabs and they're out of the rain, the traffic controllers are standing there in the rain. They're not emergency works. So it's becoming more and more common for these people to be stuck on the side of the road and the issue of risk and safety comes into it, but also that guy that's standing out the front that stopped you from coming in, if he has got cones out on the road, he just can't walk off the road. He has to continually stay there until all that stuff is packed up and left. That's not emergency works.
They could have predicted quite easily two hours beforehand it was going to rain and shut the job down earlier, but what they're doing is leaving these jobs until it rains and then asking these - or demanding that these guys stay there. Now, under the NUTCD, they cannot leave the site - a job site - until all their signs are packed up. That's part of the Act. I don't know anyone else in an award that can cop a 6000-dollar fine because they haven't done something, yet a traffic controller can cop a 6000-dollar fine because he hasn't packed up his signs. That's what the legislation is at present. We're trying to address those inequities.
THE SENIOR DEPUTY PRESIDENT: All right. Well, I won't go any further into the claims, although they'll need to be, frankly, better particularised and I think probably discussed with others, because in each case - with the possible exception of variation 2 - I think there are provisions that deal with the sorts of issues that are being raised. Now, whether they're adequate is a matter we won't get into today, for that particular type of work. Anything further on the issue of standing and the validity of the application from anyone?
MS ADLER: Your Honour, it's Ms Adler. Aside from Mr Maxwell's comments in relation to the cover of the award, I don't believe Mr Broomhead has been able to provide any further clarity as to the intended operation of the application in different sectors of the construction industry, with respect.
THE SENIOR DEPUTY PRESIDENT: Yes, well, I think that will be the next phase. Anything further on the standing point? Very well. Mr Broomhead has brought the application in a personal capacity, he asserts as an employee covered by the award which would entitle him to make an application under section 157 and section 160. That is contested by Mr Calver on two bases: one, an evidentiary basis and, secondly, on the proposition that even if he had worked at some stage or worked from time to time in a capacity which brought him within the coverage of the award, that's not the current status and there is no standing.
I don't accept the latter proposition. In my view, an employee who undertakes work within the coverage of the award, albeit not on an ongoing basis, would have standing to bring the application. I'm satisfied that Mr Broomhead does have standing, subject to him providing some evidentiary support for the proposition that he has worked and does work from time to time as a traffic controller within the coverage of the Building and Construction General On-Site Award. Mr Broomhead, I wonder if you could provide to me - and it will be posted on the web site - evidentiary evidence to that effect going not only to your most recent employment, but to employment from time to time as a traffic controller under the coverage of the award.
MR BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: You're able to do that, Mr Broomhead?
MR BROOMHEAD: I can provide you with a slip, your Honour, that has the amount that I've earnt this year and which shows that's an ongoing - because we're talking about an award that's $18.35, so you can divide whatever that is technically by $18.35 and show you - - -
THE SENIOR DEPUTY PRESIDENT: Yes, well, if you wouldn't mind going beyond that to actually set out periods of employment in that capacity; the relevant capacity.
MR BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: In addition to the pay slip material. Now, if any issue arises out of that and someone seeks to challenge the evidence, they can obviously make application. Sorry, did someone - - -
MS ANGUS: Your Honour, that might put the applicant in a slightly precarious position. Is it not appropriate perhaps to redact his name and the name of the employer, and if there are issues amongst any of the parties here about - you know, then perhaps the pay slip can be provided directly to people for their scrutiny. I note from my own conversations with the applicant that the last engagement fell, coincidentally or otherwise, in the same week that the notice of listing for this matter was issued.
I think there are certainly some possible concerns for anyone as an individual bringing an application - an employee - to vary an award. I would have thought it's in the commission's interest to redact that sort of information and provide some sort of protection for the applicant in this matter.
THE SENIOR DEPUTY PRESIDENT: Does anyone wish to be heard in respect to that?
MR CALVER: Well, if the proposition, your Honour, is that there is evidence of ongoing engagement under the award sufficient to satisfy the notion that Mr Broomhead is covered by the award, then that evidence should be given by Mr Broomhead in whatever form it takes. That might not be disclosure of employers, but it might be a statement that has some evidentiary weight rather than hearsay conversations that Ms Angus has spoken about. We would seek that to substantiate the proposition there has been ongoing coverage of the award by Mr Broomhead, that evidence to that fact be adduced.
The nature and extent of that evidence is a matter for the applicant, but if it fails to satisfy that proposition, your Honour, I believe that we would be making further submissions on that matter.
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Mr Broomhead, if you'd provide the information. You've already named a couple of companies, I think, today.
MR BROOMHEAD: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: Provide it in whatever form you're comfortable with. If any issues arise out of that, that will be dealt with. There obviously are, to be frank, some issues which have been raised by Mr Broomhead's application which seem to have the support of organisations who can themselves make an application, so in a sense we might be spending a lot of time and energy on something that might be neither here nor there at the end of the day. You provide that information as you see fit, Mr Broomhead, and if any issues arise, then we'll deal with it in due course.
I'll proceed on that provisional basis to the next steps, which will be how the application is further progressed. Frankly, I'm just wondering whether there is some point in discussions between Mr Broomhead and some or all industry parties with a view to refining the application. Firstly, to better identify how it would apply within the award, exactly what variations would be sought to the award; which would address, amongst other things, the issue raised by Ms Adler. Potentially the value of some conferences, or an initial conference at least, under the auspices of the commission. Does anyone have any views on that?
What I want to avoid, frankly, is evidence being produced in support of the current application, or against it, in circumstances where it may be that the application itself does require some refinement to better identify or more clearly identify what variations are sought and to consider those applications in the context of the award provisions which currently apply in relation to such work.
MR MAXWELL: Your Honour, Mr Maxwell in Sydney. We believe there would be benefit in a conference of the parties. Now, obviously I think that would have to be in one location rather than it being done via video conference.
THE SENIOR DEPUTY PRESIDENT: We can lend you our equipment, Mr Maxwell.
MR MAXWELL: Your Honour, we do believe that some of the matters which Mr Broomhead has sought variations to the award could be covered by some of the existing provisions in the award with minor variations. Others may require a more substantive variation, but we believe it would be of benefit to the parties sitting down and discussing those issues prior to going into any formal hearings in regard to submissions and so forth, if the commission pleases.
THE SENIOR DEPUTY PRESIDENT: Yes. I've got to say, Mr Maxwell - thank you for that - I raised that because I want to avoid parties expending a great deal of effort on addressing an application which may need some refinement. I thank you for your view on that. Anyone else on that issue?
MS ANGUS: Only to support that proposition from the AWU, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes.
MS ANGUS: There have already been some discussions and it would be fruitful to have further discussions to clarify the - - -
THE SENIOR DEPUTY PRESIDENT: Yes.
MR MAXWELL: Your Honour, the other unions would support that course being adopted, if it pleases.
THE SENIOR DEPUTY PRESIDENT: Does anyone from the employer's side have a view on that?
MS ADLER: Your Honour, it's Ms Adler from Sydney. We wouldn't oppose being afforded further clarification and if that takes the form of a conference, then we would be happy to proceed that way.
THE SENIOR DEPUTY PRESIDENT: Thank you.
MR CALVER: Your Honour, our position would be that the applicant should be asked to better clarify the application before those discussions occurred.
MR HADLEY: Your Honour, Mr Hadley from TMAA. We agree. We would prefer better particulars before any conference is undertaken.
THE SENIOR DEPUTY PRESIDENT: Well, that is, I think, what Mr Maxwell was suggesting. I had in mind that there be some discussion between some or all of the parties in the first instance prior to any conference within the commission; but I think there would be some benefit in refining and clarifying the application. In many respects, what is the actual variation sought in each instance; under which power - 157, 160 - is each variation brought; is it intended to apply generally or, as Ms Adler suggests, in relation to a narrow part of the award? All those sorts of issues - and whether indeed some of the variations might not be ultimately sought by Mr Broomhead or modified in some way in light of those discussions. Mr Broomhead, do you have any view on that?
MR BROOMHEAD: I don't mind discussing it with them, your Honour. I mean, the discussions we've had so far have been quite fruitful, so I see no reason why you wouldn't continue to do that. At the end of the day, I'm the only person here not being paid, so to me if it's going to reduce my costs, I can't see why I wouldn't do it.
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Just bear with me one second. I think we're at the point where, Mr Broomhead, you're going to respond in relation to that evidentiary material and the parties can go away and discuss the application. That might involve discussions with the union parties in the first instance and Mr Broomhead, and then more broadly the employer parties just so everyone is clear. If there are any remaining uncertainties, they can be raised and hopefully clarified and at some point - potentially at least - an amended application be filed, at which point a conference can occur.
Mr Broomhead, do you want me to set down a conference date at this point? I invite any others to comment on that - which would be preceded by those discussions without my involvement; or should we leave that up in the air at the moment, subject to application by you or some other - - -
MR BROOMHEAD: If I approach Ms Adler and we get some discussions and that going, your Honour, and with the rest of them, then we file an amended application and then you can set down a date for a re-hearing, how's that?
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Does anyone have any different view that we adjourn the matter generally, subject to further conference and/or hearing when requested by Mr Broomhead? No-one objects to that course of action?
MR HADLEY: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Very well. Okay. Look, I'll adjourn the matter. Mr Broomhead will provide the evidentiary material. If there's any issue arising out of that, that will be subject to filing something which will go on the web site and attract my attention. Otherwise, the matter will be adjourned until a request by Mr Broomhead to have the matter called back on in one way or another. Mr Broomhead, when would you be able to provide that evidentiary material?
MR BROOMHEAD: I can email it down, your Honour, in the next couple of days.
THE SENIOR DEPUTY PRESIDENT: Yes. Very well.
MR BROOMHEAD: Say within the next week.
THE SENIOR DEPUTY PRESIDENT: Okay. Within the next week is fine, Mr Broomhead. I don't need to make any direction in relation to that. Very well. Unless there's anything further, I'll adjourn the current proceedings and apologise for having kept you so long due to technological difficulties. I'll now adjourn.
<ADJOURNED INDEFINITELY [12.03PM]