PN1

THE VICE PRESIDENT: Can I take the appearances starting in Sydney. Mr Crawford, you appear for the AWU?

PN2

MR S CRAWFORD: Seeking permission to appear. Yes, your Honour. Mr Z Duncalfe of the AWU is with me.

PN3

THE VICE PRESIDENT: Yes. Mr Aird, you appear for the CFMEU?

PN4

MR M AIRD: Yes, thanks, your Honour.

PN5

THE VICE PRESIDENT: Ms Adler, you appear for the HIA?

PN6

MS M ADLER: Yes, thank you.

PN7

THE VICE PRESIDENT: Ms Sostarko, you appear for the MBA? Ms Valarie, you appear for - what is the MPA?

PN8

MS O VALARIE: Master Plumbers Association, New South Wales.

PN9

THE VICE PRESIDENT: Master Plumbers, yes. Ms Paul, you appear for the Ai Group?

PN10

MS V PAUL: Yes, your Honour.

PN11

MS VALARIE: Excuse me, your Honour. I also appear for the Fire Protection Association of Australia.

PN12

THE VICE PRESIDENT: Yes. Thank you. Then in Melbourne, Ms Coate, you appear for the National Fire Industry Association.

PN13

MS C COATE: Yes, your Honour.

PN14

THE VICE PRESIDENT: Mr Coffey, you appear for the CEPU?

PN15

MR P COFFEY: Yes, that's correct.

PN16

THE VICE PRESIDENT: I'm sorry, I'm just returning to Sydney. I missed two in Sydney. Mr Nguyen, you appear for the AMWU?

PN17

MR M NGUYEN: Yes, your Honour.

PN18

THE VICE PRESIDENT: All right. Mr Noble, you're with Mr Coffey, are you, for the CEPU?

PN19

MR G NOBLE: Mr Coffey is here in respect to the plumbing, your Honour, whereas I'm from the national office and it's broader. More the electrical division really.

PN20

THE VICE PRESIDENT: All right. Mr Eberhard, you appear for the Master Plumbers services?

PN21

MR P EBERHARD: I do.

PN22

THE VICE PRESIDENT: Ms Hogg, you appear for the Australian Business Industrial and the New South Wales Business Chamber?

PN23

MS L HOGG: Yes, that's correct.

PN24

THE VICE PRESIDENT: The purpose of today is to finalise the programming for the hearing to commence on 3 April. The parties should have hopefully available to them a document which the Commission has prepared just for reference purposes as to the issues in the proceedings. Then we have received, in response to a request from the Commission, two proposals as to the conduct of the hearing of the matter. The first is from the MBA, dated 16 March. The second is a response from the CFMEU. Ms Sostarko, can we start with your proposal. Do I take it that all the employer groups agree with this proposal?

PN25

MS SOSTARKO: Yes, it's my understanding that that is the case.

PN26

THE VICE PRESIDENT: All right. I'm just going through this - - -

PN27

MS SOSTARKO: My apologies. The Master Plumbers Association may not necessarily be familiar with the correspondence or proposal that we have put forward. I'm happy to provide her with a copy of that, if she wants to have a look. There you go. If it assists the Commission - - -

PN28

MS PAUL: Sorry, your Honour. In the main, we have got no issues with this. The Ai Group just wishes to put forward a proposal of having final submissions - - -

PN29

THE VICE PRESIDENT: I'll hear from Ms Sostarko first. Yes, Ms Sostarko.

PN30

MS SOSTARKO: Thank you. In that email that the parties hopefully have available to them, we proposed what we consider to be a practical approach to programming for this matter. The approach that we put forward is that we have sought that with the exception of brief opening submissions on the first day, we have proposed that substantive oral arguments be made on a topic by topic basis - sorry, during the second week, but in the first week witness evidence be heard.

PN31

We have put forward a very obviously loose proposal here about how that could potentially be done, the objective being that certainly in our case there are a number of claims that cross over as far as the witness evidence goes that witnesses would be required to potentially give evidence on across a number of issues. Rather than dealing with the matter on a topic by topic basis, if we're able to hear that witness evidence as a collective, I suppose, in that first week, that would avoid some of the practical implications of having to call those witnesses back and forth if a topic approach was instead adopted. That was the proposal that we put forward.

PN32

THE VICE PRESIDENT: If we just pause there, have you seen the CFMEU correspondence from Mr Aird?

PN33

MS SOSTARKO: We have seen that.

PN34

THE VICE PRESIDENT: Just in relation to the evidence, he suggested six groupings of topics for the purpose of the evidence. Would that involve any crossover witnesses?

PN35

MS SOSTARKO: In the grouping that he has proposed?

PN36

THE VICE PRESIDENT: Yes, in the grouping that he has proposed.

PN37

MS SOSTARKO: I'm just getting that in front of me, but, yes, there would be witnesses that we would - our witnesses?

PN38

THE VICE PRESIDENT: Your witnesses or any witnesses.

PN39

MS SOSTARKO: Yes, there would be a crossover of issues that some of those witnesses could potentially need to give evidence on.

PN40

THE VICE PRESIDENT: I think Mr Glover in particular was dealing with a number of issues.

PN41

MS SOSTARKO: That's right, but also - - -

PN42

THE VICE PRESIDENT: Mr Spence was.

PN43

MS SOSTARKO: Mr Spence, as well. That's correct.

PN44

THE VICE PRESIDENT: All right. Yes, go on.

PN45

MS SOSTARKO: I'm aware that the CFMEU are not necessarily - I'm a little unclear actually as to whether or not they would support that approach. It's probably something that Mr Aird would need to put forward, but certainly that would be our preference if it could be dealt with in this manner; but we're obviously in the Commission's hands in that regard.

PN46

THE VICE PRESIDENT: All right. Assuming we go down that path, would you in cooperation with the other parties be able to prepare for the first week a witness list which identifies the order of witnesses, ideally which day they're going to give evidence and if they can't physically be in Melbourne, what location they want to give their evidence from. I should say there is a step before that. Have the parties identified which witnesses are required for cross‑examination?

PN47

MS SOSTARKO: Not at this stage, no.

PN48

THE VICE PRESIDENT: All right. I think that will need to be the first step. The parties will need to identify to each other who is required for cross‑examination and then there will need to be a witness list prepared so that there is an orderly and convenient programming for witnesses.

PN49

MS SOSTARKO: If I could just add when we put together this programming - of course it's purely a draft - we have suggested that perhaps potentially the union witnesses, if required, could appear in that first part of the week and the employers in the second of that first week. Only in consideration of the availability, for example, that the HIA - or unavailability - - -

PN50

THE VICE PRESIDENT: I was going to come back to that.

PN51

MS SOSTARKO: Yes.

PN52

THE VICE PRESIDENT: All right.

PN53

MS SOSTARKO: But of course that's purely draft at this stage.

PN54

THE VICE PRESIDENT: All right. Then the submissions in the second week - so you anticipate that all the evidence would be deal with by the end of the first week?

PN55

MS SOSTARKO: That would be our intention, yes.

PN56

THE VICE PRESIDENT: If that is the case, I can't imagine the submissions are going to take the whole of the second week, are they?

PN57

MS SOSTARKO: I guess that's something that is difficult to predict at this stage.

PN58

THE VICE PRESIDENT: I couldn't possibly imagine that would be the case.

PN59

MS SOSTARKO: Yes.

PN60

THE VICE PRESIDENT: I would have thought two days would be sufficient.

PN61

MS SOSTARKO: Yes.

PN62

THE VICE PRESIDENT: Anyway, you want to do it topic by topic in that order?

PN63

MS SOSTARKO: Yes.

PN64

THE VICE PRESIDENT: Can I suggest to you that the Full Bench would prefer, if we're going to do it topic by topic, to deal with it in the order that is identified in the document we have distributed; in the broad categories. Would there be any difficulty with that? We have got common claims for all the awards - or most of the awards, dealing with the redundancy scheme as the first issue; travelling and living away from home is the second issue; overtime is the third, et cetera.

PN65

MS SOSTARKO: The only question that I would have is obviously the issue of allowances and the claim that we've made which is the broader claim to do with work health and safety, and their interaction with the legislation with the allowances.

PN66

THE VICE PRESIDENT: Yes.

PN67

MS SOSTARKO: My apologies. I'm just having a look at this document, just to see when that's provided for in the schedule.

PN68

THE VICE PRESIDENT: The allowance is the second of the specific claims for the Building Award.

PN69

MS SOSTARKO: Okay. It's simply our thought would be that that issue should be dealt with, as far as allowances go, at the outset. I think that those submissions will very much have a bearing on any subsequent allowance issues that might flow depending on those submissions, providing that is the way that it is scheduled. If the Commission would be minded to allow us to make those submissions on the work health and safety issue first, then to me that would certainly - we would have no objection to the schedule that the Commission has put forward.

PN70

THE VICE PRESIDENT: All right. Thank you. Anything further? Do you want to say anything about this CFMEU proposal to deal with objections to evidence in some preliminary fashion?

PN71

MS ADLER: Your Honour, we corresponded with the CFMEU this morning in relation to that point. I guess we don't quite see the logic in that. Our view is that the weight of the evidence, in any event, should have been dealt with in reply submissions and then the admissibility of that evidence is dealt with in the normal course of proceedings, and then obviously tested on cross‑examination.

PN72

A requirement for further written submissions, in our view, anyway, seems unnecessary and particularly the time frame provided to provide those submissions by next Wednesday also seemed impractical. Thank you, your Honour.

PN73

THE VICE PRESIDENT: While you're standing up, Ms Adler, what was the latest terms of your availability issues?

PN74

MS ADLER: 5 April is presenting some difficulties for me and for HIA more broadly. Some of our witnesses also will have difficulty appearing on 5 and 6 April.

PN75

THE VICE PRESIDENT: All right. If the parties were to be directed to cooperatively put together a witness list, you could engage with that on basis, for example, that your witnesses would be called on the 7th?

PN76

MS ADLER: Absolutely.

PN77

THE VICE PRESIDENT: Yes. All right. Do any of the other employer parties want to say anything about the programming of the matter? Ms Paul?

PN78

MS PAUL: Just one comment, your Honour. In terms of the Ai Group's submission about National Training Wage - and understand the notation about the status of - and I understand that our submission has been accepted by - our proposed (indistinct) has been accepted by the unions. If that matter could be dealt with - from our view if that matter is dealt with on the papers, we then don't need to put in further submissions in terms of that.

PN79

THE VICE PRESIDENT: Can you just identify where that is in the issue list.

PN80

MS PAUL: Item 3, your Honour, National Training Wage.

PN81

THE VICE PRESIDENT: Where did you say it was?

PN82

MS PAUL: Under the industry‑specific claims, your Honour, item 2. It's the last item on that section.

PN83

THE VICE PRESIDENT: Is that right, Mr Aird, and other unions, that that is an agreed proposal?

PN84

MR AIRD: I apologise, your Honour. I'm not able to assist the Commission with an answer to that question.

PN85

MR NGUYEN: Yes - it's Mr Nguyen from the AMWU - it is correct only in relation to the change to 28.3(a), which is the variation to replace skill level in the table with wage level.

PN86

THE VICE PRESIDENT: Sorry, I meant the AIG claim.

PN87

MR NGUYEN: Yes, only in relation to that claim, we don't oppose that particular - - -

PN88

THE VICE PRESIDENT: If that is done on the papers and assuming we get confirmation of consent, you don't otherwise seek to appear in the proceedings?

PN89

MS PAUL: Sorry, your Honour, we need to appear. We just want to take it off the list of issues to be dealt with, so we'll be appearing on the other matters.

PN90

THE VICE PRESIDENT: All right. We don't need to worry too much about that if you're going to be there, anyway. Thank you.

PN91

MS SOSTARKO: Your Honour, if I could just add one more point about the scheduling. We, too, would agree with the HIA in that the proposal that the CFMEU put forward is not a course to which we're disposed, obviously understanding that it does crystallise some of the considerations that the parties are facing; but, in saying that, we would certainly agree with those submissions about this issue that the HIA have just put forward. I understand there are some points in here that have been highlighted that the Commission requires some classification on, that are directed - - -

PN92

THE VICE PRESIDENT: Yes. If you can do that now, good. What I was going to say is I was going to give the parties an opportunity to identify - they can do it orally today, but otherwise in writing - any errors or omissions in the document so that we can finalise it and upload it to the web site.

PN93

MS SOSTARKO: Okay.

PN94

THE VICE PRESIDENT: I know the parties have only just seen it, so I didn't want to press you about that, but is there anything you want to say about those matters now?

PN95

MS SOSTARKO: Well, certainly we would appreciate that opportunity to have a thorough review just to ensure that all that is reflected is covered off. I guess the two key points that are highlighted here that perhaps we can flag at this point in time though, are our claims relating to the payment of wages clauses within the awards and the fact that those claims are potentially being dealt with the common issue matter, as well, which has been highlighted here.

PN96

Certainly it would be our preference that those claims that we've actually made some issues on in the common issue matter, as well, to cover off both - because it has been a little unclear as to how those matters are going to be determined. It would be our preference that those issues be dealt with in the common issue matter, but, as I said, if the Commission pleases we'll provide that position in writing, as well. A similar, I guess, position can be taken with regard to the National Training Wage schedule matter.

PN97

THE VICE PRESIDENT: Yes.

PN98

MS SOSTARKO: Which is also being heard as a common issues matter. We have made submissions in that matter and again we support the Commission's approach that's proposed in that matter to have a schedule for all modern awards. So, again, we would be most pleased to have that issue dealt with in that matter, but again we'll put forward those submissions in writing, if the Commission pleases.

PN99

THE VICE PRESIDENT: All right. Thank you.

PN100

MS SOSTARKO: Thank you, your Honour.

PN101

THE VICE PRESIDENT: Does any other employer party wish to say anything about the programming of the matter? No? All right. Mr Aird?

PN102

MR AIRD: Thank you, your Honour. I just want to let his Honour know that I think my phone is broken at the moment. I can't turn it off, so I apologise if it happens to ring. Your Honour, we felt it would be best to proceed in this matter by way of filing written submissions in regard to some of the witness evidence being submitted. It would help with the timetabling and process issues in this matter. We have put that to the parties.

PN103

Obviously we've heard today from the MBA and HIA about their position. I mean, the alternative we would understand to be those submissions that were made at the commencement of the proceedings.

PN104

THE VICE PRESIDENT: So you want evidence excluded altogether, do you?

PN105

MR AIRD: We think much of the evidence has been filed. I'm not in a position to be specific at this stage, but we have obviously indicated a short filling of submissions to deal with that; but much of the evidence is, in effect, not probative and is submissions, and should be dealt with as such. If some of that evidence is called as witness evidence, it leaves parties in a difficult position to, for example, cross‑examine witnesses on opinion evidence and it should be more properly dealt with as submissions.

PN106

THE VICE PRESIDENT: Yes, all right. Why can't it be dealt with as a matter of weight in closing submissions?

PN107

MR AIRD: We are in the Commission's hands about how the evidence should be dealt with, but certainly it would be the position of the CFMEU that we deal with the matter formally. Alternatively, it would seek to be heard at the commencement of proceedings about evidence that's going to be objected to. Of course we could then simply do it as each witness is brought on.

PN108

Our preferred position is that we deal with this matter formally before the hearing takes place and evidence is formally called. Alternatively, that we would deal with it at the commencement of the proceedings.

PN109

THE VICE PRESIDENT: It's just very unwieldy because we've got a Full Bench of five, so for you to put on submissions and then the employers to respond, then to get a Full Bench of five to make rulings and objections prior to the start of the hearing is probably not a very practical course. In any event, in the alternative if there was a direction made for you simply to file a list of objections prior to the start of the hearing, you could do that?

PN110

MR AIRD: We would be in a position to do that, yes.

PN111

THE VICE PRESIDENT: All right. Now, opening submissions. You don't want to do that? I mean, you don't have to.

PN112

MR AIRD: We don't think they're necessary in this matter. My instructions for today is that opening submissions are not necessary and would simply delay the matter getting into the nitty‑gritty of hearing the evidence.

PN113

THE VICE PRESIDENT: The only comment I would make is that the parties often assume that the members of the bench are as fully alive to all the issues as the parties are, which is usually a false assumption. Opening submissions are often useful to them. The Full Bench would get a full understanding of the nature of the issues involved, which sometimes doesn't jump out of the written submissions. In any event, if there is an opportunity to make opening submissions - if a party doesn't want to take advantage of the opportunity, that's a matter for them.

PN114

MR AIRD: Thank you, your Honour. I just want to briefly respond to the discussions that have taken place. We wouldn't raise any strenuous objections if your Honour and the Full Bench wanted to proceed on the basis of the topic issues as outlined in the document. We might seek some changes to that. We would support my friends seeking that WHS be dealt with as an upfront issue. We think there are some technical issues around that which are better to be dealt with at the commencement of proceedings, with the redundancy arrangements.

PN115

We would also seek issues that involve some greater technicality be dealt with first up and we would like to add to that coverage issues, which are - so I'm actually changing the document that we outlined, but at point 4 in our document that was emailed around this morning - and I apologise if I've missed some parties in outlining our position - we would propose that the coverage issues be dealt with, the WHS issues and the redundancy issues, at the commencement of proceedings, otherwise we would - - -

PN116

THE VICE PRESIDENT: Sorry, what do you mean at the commencement of the proceedings?

PN117

MR AIRD: Just that the topic issues - I think your Honour - - -

PN118

THE VICE PRESIDENT: We're talking about the evidence now, are we?

PN119

MR AIRD: Yes. Apologies, your Honour. I'm talking about how the evidence would be led. I understood from your Honour's comments this morning that you would seek evidence be led consistent with the document that has been distributed in - - -

PN120

THE VICE PRESIDENT: No, I was talking about submissions.

PN121

MR AIRD: Okay. I apologise.

PN122

THE VICE PRESIDENT: The problem with the evidence is that although a topic approach might be desirable, there are a number of witnesses whose evidence straddles a number of topics and I find it difficult to work out how that is going to work without having to recall witnesses multiple times, which is obviously inconvenient to them.

PN123

MR AIRD: We're not suggesting that occur, your Honour. We are just simply suggesting that as a matter of practicality and to maintain the flow of the hearing that it be dealt with on a topic basis. If a witness is going to give evidence across the board, there ought be a discussion on that - the appropriate timetable. We're not suggesting that a witness should appear and come back on multiple occasions, but we're seeking to try and deal with these matters as conveniently as possible by a topic by topic basis.

PN124

We would seek, with the evidence being led on that basis, that also closing submissions be led on that same basis. I mean, we've put a proposal out for a topic - sorry, I misunderstood your Honour's earlier comments. I understood that to be an indication of how the evidence would be led.

PN125

THE VICE PRESIDENT: All right. Anyway, you want the WHS, allowances, redundancy and coverage issues to be the primary issues and then the rest to follow. Is that the - - -

PN126

MR AIRD: That's correct, your Honour.

PN127

THE VICE PRESIDENT: All right. If I leave it to the parties to come up with a witness list which broadly corresponds to that order of topics, but firstly doesn't require any witness to be called more than once and, secondly, accommodates the HIA's unavailability, is your client prepare to cooperate in that endeavour?

PN128

MR AIRD: We would be prepared to cooperate in that endeavour. I mean, all the parties have got to obviously make contact with their witnesses and check availability, and we'll do what we can to cooperate in that. Obviously we would seek the parties try to be able to lead witness evidence where the topics are listed, but we're aware people have got other things that they're called to do and there may be issues why people can't attend on a specific date. That may be the case with some of our witnesses, as well.

PN129

THE VICE PRESIDENT: Do you anticipate that all the evidence can be done in the first week?

PN130

MR AIRD: We would anticipate that all the evidence could be done in the first week. Obviously at this point in time, you know, we have said that we want to raise some objections to some of the evidence that is being admitted and that may have some impact on that. We would agree with your Honour's comment and assessment earlier that closing submissions should be able to be concluded in a two‑day time frame, as well.

PN131

THE VICE PRESIDENT: All right. Okay.

PN132

MR AIRD: Thank you, your Honour.

PN133

THE VICE PRESIDENT: Mr Crawford? I will grant you permission to appear for the purpose of today.

PN134

MR CRAWFORD: Thank you, your Honour. I don't think I've got much to add. I think the direction is made for parties to identify the witnesses that are required for cross‑examination and also parts of the evidence that they object to. I guess until we see all that, it's not going to make any progress in terms of finalising a witness list, but hopefully when that is produced, that will help in providing a sensible path forward. It seems like that is the direction it's heading and we're comfortable with that, your Honour.

PN135

THE VICE PRESIDENT: All right. Thank you. Any other union representatives want to say anything? I'll just go back to you, Ms Sostarko. Just in terms of that order of issues - - -

PN136

MS SOSTARKO: The order put forward by the Commission?

PN137

THE VICE PRESIDENT: The CFMEU.

PN138

MS SOSTARKO: By the CFMEU. Yes, your Honour.

PN139

THE VICE PRESIDENT: Are you broadly comfortable with that order, which I thought was more or less consistent with what you said.

PN140

MS SOSTARKO: Certainly, your Honour, we wouldn't have any objection, for example, to the coverage issue being moved to the top of the list. I'm just having a look how it compares with the proposal that we've put forward. Certainly I can't imagine that we would have any objection to it. Obviously our primary position is that we simply didn't want to have to drag our witnesses back and forth, but if the Commission is minded to take this approach where we hear witness evidence in that first week, then certainly we wouldn't object to the order of those topics that the union has proposed.

PN141

THE VICE PRESIDENT: What I had in mind was that the parties should, broadly speaking, stick to that order, but can agree between themselves as to what the order should be. No witness should have to come twice. I should make that clear. Availability of particular parties and witnesses need to be accommodated, so it's a broad guide without being too restrictive.

PN142

MS SOSTARKO: Yes, your Honour. If we could seek some time just to consider those and how those topics can converge in terms of everyone's availability. If the direction would be that we're to have those discussions out of session, we would be quite happy to do that.

PN143

THE VICE PRESIDENT: All right. What I have in mind is that by the close of business of Wednesday next week - that is the 22nd - the parties can, firstly, communicate to the Commission any errors or omissions in the issues document and, secondly, inform the Commission and each other which witnesses are required for cross‑examination. Then by close of business Wednesday the following week - that is the 29th - the parties prepare a witness list which identifies the order of witnesses and which days they're going to appear, and their location. Does any party have any difficulty with that?

PN144

MS SOSTARKO: Just to clarify, your Honour, I noted earlier in your comments that you mentioned about appearing in Melbourne. The hearing is set down for Sydney though. Is that correct? My apologies.

PN145

THE VICE PRESIDENT: Yes, it has always been in Melbourne, Ms Sostarko.

PN146

MS SOSTARKO: Okay.

PN147

THE VICE PRESIDENT: I think I'm right.

PN148

MS SOSTARKO: I had a look at the directions. I don't think that it actually says that.

PN149

THE VICE PRESIDENT: All right. I'm the only Sydney member on the bench, which is why we're sitting in Melbourne.

PN150

MS SOSTARKO: Okay. Thank you.

PN151

THE VICE PRESIDENT: Are there any other issues with that broad timetable? Mr Aird, could you also, by the 29th, file a list of objections to evidence.

PN152

MR AIRD: I'm in your Honour's hands, but we're happy to do so. I'm just wondering what the other parties - how they're going to deal with evidence that might be contested, as well. We're just seeking that the CFMEU file their objections - - -

PN153

THE VICE PRESIDENT: Well, if any other party wishes to make any formal objections to the admission of evidence, they would also do so by the 29th.

PN154

MR AIRD: Thank you, your Honour.

PN155

THE VICE PRESIDENT: Yes, Ms Adler.

PN156

MS ADLER: Sorry, your Honour. Just on those couple of points identified in your summary, the payment of wages claim and the National Training Wage schedule claim, I note that the hearing in relation to the payment of wages is on 23 March, so I guess an indication of where those matters would be heard - particularly our claim, which is very much a live issue in the common matter proceedings. It would be helpful for the parties to know in which proceedings we should - - -

PN157

THE VICE PRESIDENT: Yes, that would be helpful, I'm sure. All right. I'll find that out.

PN158

MS ADLER: Thank you, your Honour.

PN159

THE VICE PRESIDENT: Yes. Does anybody else have any other issues? All right. Thank you for your attendance. What I will anticipate is issuing in writing directions later today or, at the latest, first thing on Monday, which should allow for the proper programming of the matter Again, liberty to apply is granted if some unanticipated procedural difficulty arises. I will now adjourn.

ADJOURNED INDEFINITELY�� [10.36 AM]