PN1

JUSTICE ROSS: Good morning, could I have the appearances in Sydney please? Can you just be careful when you're shuffling your papers - no, keep your seat. Keep seated and be careful when you shuffle your papers that you're not bumping the microphone. Okay, who do we have in Sydney?

PN2

MR G MILLER: Thank you, your Honour. If it please, Miller, initial G, for the AMWU.

PN3

JUSTICE ROSS: Thanks Mr Miller.

PN4

MR S MAXWELL: If the Commission pleases, Maxwell, initial S, for the Construction and Forestry, Maritime, Mining and Energy Union.

PN5

JUSTICE ROSS: Thanks, Mr Maxwell.

PN6

MR S SMITH: Yes, if it pleases the Commission, Smith, initial S, of the Australian Industry Group.

PN7

JUSTICE ROSS: Thanks, Mr Smith.

PN8

MR C SPENCE: May it please your Honour, Spence, initial C, for the Civil Contractors Federation.

PN9

JUSTICE ROSS: Thank you, and in Brisbane?

PN10

MS R SOSTARKO: If it pleases, Sostarko, initial R, for Master Builders Association.

PN11

JUSTICE ROSS: Thanks, Ms Sostarko. And in Canberra?

PN12

MS M ADLER: If it pleases, Adler, initial M, from the Housing Industry Association.

PN13

JUSTICE ROSS: Thanks, Ms Adler.

PN14

I'll just go through some preliminary matters. I issued a statement on 30 August setting out the background to the matter and on 30 August we also published a summary of the parties' submissions and invited any comment on the accuracy of that summary. The only comment we received was from the CFMMEU indicating a slight change to the notes in relation to item 1. Are there any other changes the parties want to raise at this stage to that summary? No? All right, can I just go through the position where we are at the moment. The AMWU and the CFMMEU have made submissions to maintain award-specific schedules in nine modern awards. I'll come to the nature of what they're proposing in a moment.

PN15

In relation to the Building and Construction Onsite Award there is an interaction between clause 28 of that award and the National Training Wage Schedule. As I understand it a substantive issue before the Construction Full Bench in AM2016/23 involves claims to vary clause 28. If that's right then what I would propose to do is to leave any further deliberation on the National Training Wage Schedule in the Onsite Award until after the Construction Award has completed its deliberations on the applications to vary clause 28. Does anyone have a different view as to how we should deal with the Onsite Award? No?

PN16

MS SOSTARKO: No, your Honour.

PN17

MR MAXWELL: No, your Honour.

PN18

JUSTICE ROSS: Okay.

PN19

MR MILLER: No, your Honour.

PN20

JUSTICE ROSS: Is it only the Onsite Award that raises this issue, this clause 28 provision? Because you've also got I think in the list of awards that are in contention today joinery and the Mobile Crane Hiring Award. Is there anything before the Construction Full Bench about those awards that impacts on the National Training Wage Schedule?

PN21

MR MAXWELL: your Honour, there is nothing in regard to those awards.

PN22

JUSTICE ROSS: All right. Can I then go to the Surveying Award. Now there's a submission by the AMWU about this award being - as I understand it this award does not currently contain the National Training Wage Schedule.

PN23

MR MILLER: That's correct.

PN24

JUSTICE ROSS: So originally the process was if you wanted to retain an existing award-specific schedule then you should make an application. Now the metal workers - or you should indicate that that's what you want to do, and that's what the metal workers have done in respect of the Airport Employees Award, the Onsite Award, the Food, Beverage Manufacturing and the Manufacturing Award, the Sugar Award and the Surveying Award. But the Surveying Award seems to be separate from the rest of them because you don't have an award‑specific schedule that you want to retain. You actually want to insert a National Training Wage Schedule in that award, is that right?

PN25

SPEAKER: Yes, that would be an accurate characterisation.

PN26

JUSTICE ROSS: All right, well if you want to do that you should make an application to vary the Surveying Award and it will be dealt with as a substantive claim in the review, all right? It won't be dealt with as part of this process. This process is only looking at where you currently have a National Training Wage Schedule in your award and you want to retain it because it contains some sort of - some award‑specific considerations and so you don't want to be part of the general sweep of awards which inserted the Miscellaneous Award schedule. All right? So it's the first time the National Training Wage will be considered in the context of the Surveying Award so I think you have to deal with that as a separate process to this one. Okay? So if you want to pursue that, file an application to vary.

PN27

If I go through the other awards I just want to get an idea as to what's being sought and the extent of the disagreement. For that purpose can I go to the summary of submissions and I'm looking here at the award‑specific submissions commencing on page 6. If we go first to the Airline Operations Award there's a measure of agreement between the AMWU and Ai Group and there have been a number of submissions made, but they don't necessarily address all of the matters raised by each of the parties. If I can just go through them. If you look at the AMWU's - the first item, item 2, which deals with paragraph 8, you'll see the AMWU proposes the deletion of "or by clause A4.4". What does Ai Group say about that proposal?

PN28

MR SMITH: Your Honour, I just have to clarify that, sorry. Yes, I haven't focussed on that particular issue.

PN29

JUSTICE ROSS: No, that's okay. Look, I think - - -

PN30

MR SMITH: I'm not aware of any - it's probably okay but I just need to check.

PN31

JUSTICE ROSS: No, that's fine. Look, it seems that there's also agreement by the AMWU with Ai Group's submission that Aeroskills II is a relevant qualification, and there's a dispute or Ai Group submits that transports and logistics distribution should align with wage level B not wage level A. What does the AMWU say about that?

PN32

MR MILLER: I'd have to check how that's currently aligned - - -

PN33

JUSTICE ROSS: All right. Well, I think the best way to deal with this is for the two of you to have a conversation about it and sort out what you agree about and what you don't agree about. Now, that's without prejudice to your primary submission as I understand it, Mr Smith, that there's no need for - and this is the position taken also from memory by HIA, MBA and I think the CCF, I'm not sure - that there's no need for award‑specific tailoring.

PN34

MR SMITH: That's - - -

PN35

JUSTICE ROSS: But I think you've sought some tailoring in some other matters so I'm not entirely sure as to where you finally landed on that point.

PN36

MR SMITH: Your Honour, I think where we've got to with all of these specific issues about the specific schedules highlights very persuasively in our view why we shouldn't have these award‑specific schedules. Because once you have an award‑specific schedule you then need to go through this very detailed exercise of looking at all of the qualifications in the very long list that's attached to the generic schedule and work out which of those qualifications are relevant for each particular award, and that's what is causing some disagreement at the moment with particularly the AMWU, but also to some extent with the CFMMEU, because if you look at the Manufacturing Award as an example, as you know it replaced 160 pre‑modern awards and has a very broad scope.

PN37

So we went through an exercise of identifying all of the qualifications that could potentially be relevant. It wasn't just a matter of picking all of them. We didn't put, you know, ones about farming and a whole range of others in there. But the AMWU is taking a narrow view, in our view, of what qualifications might be relevant, but there could be hundreds, if not thousands, of trainees out there in unknown workplaces that are using qualifications. So to us, we need to take a very cautious approach, even jurisdictionally, because to knock people out of award coverage would be beyond the Commission's jurisdiction under the Act anyway given the provisions that we have identified in our submissions. So I think there is that fundamental matter of difference at the moment with the AMWU, and also, as we've identified, there are some attempts being made by the unions to change the alignment with wages.

PN38

JUSTICE ROSS: Yes. Can I just focus on that last point? It does seem that the unions, at least the AMWU, has converted what was a process of wanting to retain an award‑specific provision into an attempt to actually vary what is the current award‑specific provision in a number of these awards.

PN39

MR MILLER: Yes.

PN40

JUSTICE ROSS: When we started this process, Mr Miller, what it was intended to do was, as a general proposition, the Miscellaneous would apply, and we invited parties to identify where they wanted to retain an award‑specific schedule. Your union and the CMFMMEU indicated they wished to retain award‑specific schedules in a number of awards, and then you're invited to say well how should that be tailored, and in fact in the tailoring you've sought a substantive variation of a number of the terms of these awards. So the process has morphed from where it was to where we are now, which raises the question of how best to deal with that. From my part, I want to know what exactly the union is seeking in relation to each of these awards. In particular I want to know what is it seeking to change from what is currently there. It seems to me there are two issues here: one, should there be an award‑specific schedule, and if so why, and two, what changes are you proposing to make to the award‑specific schedule which is currently in these awards.

PN41

In relation to each of the eight awards in contention - I'm taking surveying out for the moment - in relation to those eight awards, there is already a national training wage schedule in those awards, which is not being disturbed by this process. If you want to retain an award‑specific schedule, I want you to indicate or put an argument as to why that is, and secondly, where you're seeking to change the current schedule, I want you to file an application to vary the award and a submission in support of why it should be changed. It may be that it's desirable to deal with the first issue as a threshold matter, that is, why should there be an award‑specific schedule for this award, because if we find in relation to one or more of these awards that it's not appropriate to maintain an award‑specific schedule then the second issue doesn't arise. It seems to me those are the matters that have to be decided. What do you think is the best way of doing that?

PN42

MR MILLER: Yes, we would agree with that approach of dealing with the threshold question of whether there should be award‑specific schedules first before going on to determine the content. We were of the view that that decision had already been made to include the award‑specific schedules. We made submissions in support of that in September last year. We'd be happy to rely on those submissions already filed, unless it would assist the Commission in us filing further - -

PN43

JUSTICE ROSS: Well, I wouldn't want to deny you the opportunity to put further submissions on the threshold question. We could simply say that those who wish to retain an award‑specific schedule should make a submission by 4 pm on 21 September identifying the awards in respect of which that submission is made. That submission won't be made in relation to the Surveying Award, because there is no schedule, but I have indicated how you can deal with that. And those who oppose that course can say whatever they wish to say in reply by Friday 5 October, and then on the basis of all that material the Full Bench can decide the issue. That doesn't include the On‑site Award. Let's leave the On‑site - we've got enough problems without drifting into the On‑site - the Construction Award. I think we'll leave that aside until the Construction Full Bench does what it wants to do, because it is in a different position because of the interaction with the current award clause - I think it's 20A. So let's leave that one aside for the moment.

PN44

But the real question is why do you want an award‑specific schedule. Is it simply to highlight which qualification streams there are, and if so, what do you want to highlight? I think the question of alignment and those sorts of issues may be a matter that goes to why you want an award‑specific schedule, because that - to the extent that that may involve a variation to the schedule in the Miscellaneous Award. But I think given the way the matter has developed, it would be appropriate to revisit that threshold question. Does anyone have any concern about the timeframes or anything else?

PN45

MR MAXWELL: Your Honour, I have a concern with the overall process, because my understanding was that parties have been invited to make submissions as to why believe they should be award‑specific schedules back in 2016, and the CFMMEU made a submission dated 28 July 2016 on that.

PN46

JUSTICE ROSS: Yes.

PN47

MR MAXWELL: In the statement of 28 August 2017, the Full Bench invited any party that opposed the inclusion of award‑specific schedules to make submissions and reply submissions by 22 September. So my concern is that the parties be given an opportunity - parties made submissions, but now you're asking to make further submissions.

PN48

JUSTICE ROSS: You don't need to make further submissions. You can simply rely on what you've already said. I think the problem has arisen because particularly the AMWU has not just sought to retain an award schedule that's currently in the award, but they're seeking to vary it. That's the problem. So it's one thing to retain a status quo position, and that's the position that we thought we were dealing with. It's another thing to say well you want an award‑specific schedule and you want a different one to the one that is currently in the award, and that's what I apprehend has happened in some instances, not necessarily your union, but in some instances that are the subject of debate between the parties that is reflected in the summary of submissions.

PN49

MR SMITH: Your Honour, we'd very much agree with that characterisation, and our early submissions, as is identified in the summary, were along the lines that we're not convinced of the need for an award‑specific schedule, but we're not strongly opposed to it at that stage. We now would welcome the opportunity to make further submissions, because our position is quite different now. We are strongly opposed to it now that we've seen what the AMWU in particular want and the removal of a raft of qualifications that are in the current schedule, which we think are going to cause all sorts of problems.

PN50

JUSTICE ROSS: Yes. I think, Mr Miller, you need to reflect on the approach your organisation is taking in it, and it would seem from what Mr Smith has said that the position of AI Group is going to be influenced by whether or not you're actually seeking to change what is currently there. And as originally intended it wasn't a question of inviting you to make variations to the current schedule in the Manufacturing Award, it was simply whether parties wanted to retain the current schedules. And it's unlikely there is going to be a dispute between you if it's about a name change and a qualification, the name of a qualification has changed or the name of a bit of legislation has changed, but when you are seeking to change the alignment around wage rates, well, it's a bigger issue than the one we're looking at. We simply started this process as largely an administrative tidying up exercise. That is that rather than have a schedule in every award that was in the same terms, we'd simply put it in the Miscellaneous Award and cross refer it. That was the purpose of the exercise. It wasn't to change substantive rights.

PN51

Now it's been a bit converted into that and that goes beyond its original intention. You've got the right to apply to vary it, there's no question about that. And you can certainly advance a submission as to why it should be retained, why you should retain, I'm sorry, an award specific schedule. But at least for my part I'm not entirely sure where we're going with this exercise now. It has changed from where it started. I agree that with the Construction Award there's, as is usually the case with Construction Awards, a degree of complexity about it. And it is caught up with the review in clause 28 but I don't really see how that arises in these other awards that the AMWU has an interest in. So what do you want to do about it? What does your union want to do?

PN52

MR MLLLER: We will consider the issues that have been ventilated to day and I'll take instructions on that.

PN53

JUSTICE ROSS: Certainly. I think, Mr Miller, rather than me setting directions at this stage I'd encourage you to do that and reflect on what's been said. Have a discussion with AI Group and it may be that you are able to reach agreement on the basis that has been previously articulated about retaining some sort of award specific schedule in some of these awards. And let's see where we go with it rather than launching into a contested proceeding. Are you content for that course and I'll list it again in two to three weeks and find out where you're up to?

PN54

MR MLLLER: Your Honour, yes, certainly from our perspective we would be content with that.

PN55

JUSTICE ROSS: All right. Mr Smith, are you content with that?

PN56

MR SMITH: Yes, your Honour.

PN57

JUSTICE ROSS: All right. So Mr Maxwell, can I just ask you, in the awards that you have an interest in which, leaving aside on site construction, we've got joinery and we've got mobile phone hiring. In terms of joinery, you've seen the HIA submission. What is different about the schedule for joinery to that which is attached to the Miscellaneous Award?

PN58

MR MAXWELL: What was proposed is to delete those parts of the schedule that have no application under this award.

PN59

JUSTICE ROSS: All right, and the deletion of those parts, is that currently in the Joinery Award or does it just include the full schedule?

PN60

MR MAXWELL: It currently includes the full schedule.

PN61

JUSTICE ROSS: How are you disadvantaged with the cross reference to the Miscellaneous Award which includes the full schedule?

PN62

MR MAXWELL: Your Honour, in our earlier submission which we made, the reason we sought to retain the award specific schedule was, one, so that people didn't have to refer to two different documents to find the rates of pay, and the second issue was that a number of the training packages and wage levels in the schedule have no application under the Joinery Award. For example, Wage Level C under the national training rate schedule in the Miscellaneous Award has no application to the Joinery Award because the training packages covered by the Joinery Award are only under rates level A and B.

PN63

JUSTICE ROSS: Is there any dispute between yourself - and I think the HIA made a submission in relation to this Award, but any other employers with an interest � is there any dispute about the subset of the schedule that you say should be attached to the Joinery Award? So is there any dispute about the detail, is really what I'm asking? Ms Adler?

PN64

MS ADLER: Your Honour, if I � sorry, I - - -

PN65

JUSTICE ROSS: No, that's all right.

PN66

MS ADLER: It's Rebecca from Master Builders.

PN67

JUSTICE ROSS: Yes.

PN68

MS ADLER: I would suggest that the answer to that question is yes, there is a dispute in terms of the content given that Mr Maxwell has suggested that there are a number of packages that are not applicable to the Joinery Award, and we would suggest that that's not the case. And he has sought to have in his proposal, reference to those packages removed. So, yes, if it pleases, our preferred approach would certainly be that Joinery be caught within your proposed direction of those seeking to retain and/or vary the existing schedules be required to make submissions to that effect because we have in both this and the Full Bench matter of the Award review stage, at the specific review stage has said that we would much prefer the uniform approach that your Honour is proposing be also applied to Joinery.

PN69

JUSTICE ROSS: All right. Mr Maxwell, I would encourage you to have discussions with those in an interest in this award and the other awards that you have an interest in. If you're in fact wanting to vary the schedule you are going to have to make an application to vary it. And if that can be done by consent with the other parties then it will obviously be able to be dealt with more quickly. But it was about retaining what you've currently got in the award. As I mentioned before, if you want to vary what you currently have you will need to make an application to do that.

PN70

MR MAXWELL: Your Honour, I - - -

PN71

JUSTICE ROSS: Your second point is right but your second point is met by simply retaining the current schedules in the award.

PN72

MR MAXWELL: Your Honour, I suppose I'm a bit concerned because it is our understanding that there was a decision made by the Full Bench back in 9 June 2017 where the Full Bench confirmed that awards to these schedules would be maintained in the nine awards.

PN73

JUSTICE ROSS: Yes. No, but I'm not resiling from that but the award specific schedule is the one that's currently in the award.

PN74

MR MAXWELL: Your Honour, in the decision of 28 August 2017 the Full Bench then published draft determinations for the award specific - - -

PN75

JUSTICE ROSS: Yes. That - - -

PN76

MR MAXWELL: For the different awards.

PN77

JUSTICE ROSS: But they were published on the basis that that's what you wanted.

PN78

MR MAXWELL: And parties were invited to make comment on the content of those.

PN79

JUSTICE ROSS: No, no. No, I understand that.

PN80

MR MAXWELL: And my understanding is that the MBA didn't raise any issue with the content of that draft order in regard to the training packages that were covered by that award.

PN81

JUSTICE ROSS: Well, they seem to be now - - -

PN82

MR MAXWELL: And as far as I'm - - -

PN83

JUSTICE ROSS: They seem to be now though.

PN84

MR MAXWELL: Well, your Honour, I'd really like to know which packages they say aren't included.

PN85

JUSTICE ROSS: No, no, and so would I but that's why I think it's - I mean look, the alternative, Mr Maxwell, is we go off and have a protracted set of hearings arguing about - what I don't intend to do is to have a protracted set of hearings arguing about the minutiae of the content of training packages where it would seem that the parties haven't had an opportunity to have a direct conversation about that. They have raised a concern about it; my only suggestion is that the parties with an interest in the awards that you have an interest in have a conversation and you get down to the detail what is it about your proposal that they object to.

PN86

It seems to me the metal worker proposal goes a bit further and it is suggesting not just the removal of some training packages from the standard schedule because they're not applicable. It's also suggesting some realignment. So in the case of the metal worker position the dispute there is both about which packages are included and their alignment. It seems in respect of your matter that the dispute is about only some of the packages, because the only change you're seeking as I understand it is to simply refer in the schedule to the awards that you've identified to those training packages that are relevant to that award.

PN87

Now I don't know what the MBA is objecting to and as you've said there was a draft variation determination and we didn't see anything in response to it then. So I want you to have a conversation about that issue over the course of the next couple of weeks and then we'll call it back on and see where we're up to, and it may be that the matter - at least then we'll know if there is a dispute between you what is the scope of it because at the moment I'm certainly not sure. What about the HIA's position? Which of those awards do you have an interest in?

PN88

MS ADLER: Thank you, your Honour. The Onsite Award and the Joinery Award are our primary focus in these proceedings so I won't deal with the Onsite Award. In terms of the Joinery Award the two matters that Mr Maxwell has put forward in support of an award‑specific schedule would apply across any award. With the schedule referenced in the Miscellaneous Award, you know, people covered by 110, 15-odd awards will now have to look at two awards to determine a rate of pay and will have to look at a schedule that includes qualifications that don't specifically apply to them.

PN89

So I just don't quite see the need for an award‑specific schedule when you are potentially removing training packages that may have application over time. I mean we don't know what the scheme of things looks like in a few years, in five years. I mean we just don't know. So we think that, you know, a cautious approach is preferred. That the full schedule be referenced as has been the approach adopted in the majority of awards, and the CFMMEU hasn't put anything on that would satisfy a different approach.

PN90

JUSTICE ROSS: And the Civil Constructors?

PN91

MR SPENCE: The Civil Contractors Federation, your Honour. I only really have an interest in the Building and Construction Onsite Award.

PN92

JUSTICE ROSS: All right.

PN93

MR SPENCE: So I think given your comments about the argument to be had around clause 28 we'd prefer to keep our powder dry until that's been had, if we could.

PN94

JUSTICE ROSS: All right. Well, as I've indicated if you have a further discussion and - - -

PN95

MR SPENCE: Sorry, your Honour, just could I clarify?

PN96

JUSTICE ROSS: Yes. Yes.

PN97

MR SPENCE: With the discussions should it be Civil Contractors Federation having those discussions with Mr Maxwell, given your comments about the Construction Full Bench?

PN98

JUSTICE ROSS: No.

PN99

MR SPENCE: Thank you.

PN100

JUSTICE ROSS: Look, I mean I don't want to restrict any conversations you want to have with Mr Maxwell, but.

PN101

MR SPENCE: I'm always happy to talk to Mr Maxwell.

PN102

JUSTICE ROSS: Yes. No, what's intended is the Mobile Crane Hiring and the Joinery Awards so we can find out whether there's any commonality between the parties about that issue.

PN103

MR SPENCE: May it please.

PN104

JUSTICE ROSS: In the meantime I'll talk to the other members of the Full Bench and we'll give some further consideration to what we do in relation to this matter. All right, any questions? No? Okay, I'll relist it for further mention in two to three weeks. Thanks for your attendance.

ADJOURNED TO A DATE TO BE FIXED�� [10.35 AM]