PN1

THE DEPUTY PRESIDENT: The proceedings this morning, although in conference, are being transcribed so that a record can be maintained. I might, for the purpose of the transcript, just ask the parties briefly to announce their appearances; starting with you, Mr Nguyen.

PN2

MR M NGUYEN: Mr Nguyen, initial M. I appear for the Australian Manufacturing Workers Union.

PN3

THE DEPUTY PRESIDENT: Yes. Thank you.

PN4

MR M DE CARNE: Mr de Carne, initial M. I appear for the Australian Workers Union.

PN5

THE DEPUTY PRESIDENT: Thank you. Mr Maxwell.

PN6

MR S MAXWELL: Yes. Maxwell, initial S. I appear on behalf of the CFMEU.

PN7

MS M ADLER: Adler, initial M, for the Housing Industry Association.

PN8

THE DEPUTY PRESIDENT: Yes. Ms Paul.

PN9

MS B PAUL: Paul, initial B, from Ai Group.

PN10

MS R SOSTARKO: Sostarko, initial R, for Master Builders Australia.

PN11

MR S MCGREGOR: And McGregor, initial S, for Master Builders Australia.

PN12

THE DEPUTY PRESIDENT: Yes. Hanging about, are we?

PN13

MR A SPOTTISWOOD: Spottiswood, initial A, for CCF, but I'm really just observing.

PN14

THE DEPUTY PRESIDENT: All right.

PN15

MR MAXWELL: And, your Honour, I should also say that I think today I'm also appearing on behalf of the CEPU.

PN16

THE DEPUTY PRESIDENT: Aren't they lucky. Yes, they did send a note to my chambers outlining their position. I'm not sure whether the other parties have had an opportunity to see or consider that. I might get my associate to perhaps just make a copy of that and give it to the parties. I thought this morning we might try and tackle three issues, if I can broadly outline those.

PN17

The first would be to try and finalise an agreed list of the various categories of allowances which were attached to the statement issued by the Full Bench in August - 17 August 2017; the second would be to deal with the proposed sectorial definitions for the purposes of the proposed single industry allowance; and thirdly to undertake the rather simple task of quantifying the allowances as they apply in respect of each sector.

PN18

I was going to start with that one first. I thought it might be too easy, so we might begin with the list of allowances. I gather there was some tweaking that needs to be done in relation to those allowances, so who wants to start off?

PN19

MS ADLER: Your Honour, I'm not sure whether you've got copies of the documents that I sent through this morning.

PN20

THE DEPUTY PRESIDENT: I do, yes.

PN21

MS ADLER: My understanding is that table A of those documents is a categorisation that the parties had broadly agreed to when we had conferences on this - was it last year?

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MS ADLER: And I think aside from those items that we identified in the submission that we made dated 15 September, I think it broadly aligned with what was in the statement.

PN24

THE DEPUTY PRESIDENT: Yes. Broadly is a good start. Mr Maxwell, since you are in my immediate line of sight, perhaps you might indicate the - or at least your organisation's and the CEPU's position on table A.

PN25

MR MAXWELL: Your Honour, I suppose the first thing with table A is that one deals with building and construction, I think.

PN26

THE DEPUTY PRESIDENT: Yes, I appreciate that. There were some additional tables, which we will come to. Sorry, if I go back a bit. Ms Adler, so you say that table A concerns - are they of general application?

PN27

MS ADLER: Yes, these are all - my take of it is - to the best of my knowledge they are all the allowances in the award. If I've missed some, then someone ‑ ‑ ‑

PN28

THE DEPUTY PRESIDENT: Sorry, they're all the allowances, but plainly some of the allowances are confined, based on a sub-industry sector. So some of the allowances will apply, for example, to civil construction only. Are they listed in table A as well?

PN29

MS ADLER: Yes, they are. So they're from number ‑ ‑ ‑

PN30

THE DEPUTY PRESIDENT: So your table will categorise them on the basis of skill, disability and expense. Beyond that it doesn't break them down into those that apply generally and those that apply to civil construction, for example.

PN31

MS ADLER: Not in a tabular form.

PN32

THE DEPUTY PRESIDENT: All right.

PN33

MS ADLER: I mean, it's identified in the description of the allowance if it applies only to the civil sector, but I've just done them all as one list.

PN34

THE DEPUTY PRESIDENT: All right. Yes, Mr Maxwell.

PN35

MR MAXWELL: Your Honour, in regard to the skill ones, what we say are missing are the carpenter diver allowance.

PN36

MS ADLER: They're all purpose ones, so I've kept them separate. Well, we didn't - I don't know that we fully agreed on everything, but I kept the all-purpose ones separate as well because I didn't know if that was part of this discussion or not. So I do have a separate table that we discussed last year with just the all-purpose allowances, but I took them out because there were some that we still didn't agree.

PN37

THE DEPUTY PRESIDENT: All right. Again, for the purposes of the record, table A sets out all of the allowances in the award; where they apply to a particular sector, they're identified; but does not include all-purpose allowances.

PN38

MS ADLER: That's right, your Honour.

PN39

MR MAXWELL: I suppose on that basis I then assume - it may not be a good thing to do - that the in charge of plant allowance is then treated as all purpose.

PN40

MS ADLER: We've got that as a disputed one, so that's why I left them out.

PN41

MR MAXWELL: There is also the certificate allowance. I should say in regard to spray application painters, I think that is perhaps more disability than ‑ ‑ ‑

PN42

MS ADLER: Certificate allowance is in there.

PN43

MR MAXWELL: You haven't listed it under disability.

PN44

MS ADLER: Okay, sorry.

PN45

MR MAXWELL: We say a certificate allowance is skill.

PN46

MS ADLER: Right.

PN47

MR MAXWELL: And just in regard to spray application painters, we think that is more disability than skill. I think other than that, I think that we're in general agreement. So the three, I suppose, all-purpose skill allowances we say would be the carpenter diver allowance, the electricians licence allowance, and the in charge of plant allowance.

PN48

THE DEPUTY PRESIDENT: And these are all purpose allowances?

PN49

MR MAXWELL: Yes.

PN50

THE DEPUTY PRESIDENT: And they belong in the skill allowance?

PN51

MR MAXWELL: Yes.

PN52

THE DEPUTY PRESIDENT: All right. Is there any dispute that those three are all purpose?

PN53

MS SOSTARKO: Sorry, would you say that again, please.

PN54

THE DEPUTY PRESIDENT: Carpenter diver, electrical licence, and in charge of plant.

PN55

MS SOSTARKO: I think the HIA highlighted that the in charge of plant was in dispute when we last spoke about that item.

PN56

THE DEPUTY PRESIDENT: In dispute as to being a skill allowance, or in dispute as to being all purpose?

PN57

MS SOSTARKO: For all purposes. And the electricians licence allowance, we would agree that that would be for all purposes, yes.

PN58

THE DEPUTY PRESIDENT: Right.

PN59

MS SOSTARKO: But if I could ask - also add that we would also say that stonemasons' cutting tools, 22.2(v), would be an expense allowance, as would second hand timber, 22.3(h). I'm not sure where we got in terms of our discussions about categorising those two.

PN60

MS ADLER: Which ones are they? Second hand timber and?

PN61

MS SOSTARKO: Second hand timber and stonemasons' cutting tools, 22.2(v). And they should be skilled, or is that ‑ ‑ ‑

PN62

MS ADLER: We say expense.

PN63

MS SOSTARKO: Expense.

PN64

THE DEPUTY PRESIDENT: I see, yes. So stonemason cutting tools, and which was the other one?

PN65

MS SOSTARKO: The other was second hand timber.

PN66

THE DEPUTY PRESIDENT: Clause?

PN67

MS ADLER: 22.3(h).

PN68

MS SOSTARKO: If I could also add that in line with our previous submissions, there are also a number that we've advanced as being potentially outmoded as well. I'm not quite sure how that works within the frame of this discussion, but I don't know if it might be worth us, again for the record, noting which ones we've advanced that view on, if the Commission pleases.

PN69

THE DEPUTY PRESIDENT: This is in relation to which category, or do they fall in all ‑ ‑ ‑

PN70

MS SOSTARKO: So in terms of disability allowances that we've said we believe that are outmoded, but I'm not sure whether that falls within the context of this discussion at this time.

PN71

THE DEPUTY PRESIDENT: If you maintain that particular allowances are outmoded, that would be a factor that you would take into account in determining the number, I would have thought, because it goes to the frequency with which a payment is made, and if something is not paid at all or is paid infrequently then an allowance is made in relation to the overall number. Yes, go on.

PN72

MS SOSTARKO: So they would be clause 22.2(f), explosive power tools; clause 22.2(k), asbestos. With reference to the following, 22.23(iii), slushing, the position we've advanced is that it's an outmoded term, not necessarily an outmoded allowance, and that the term slushing should in actual fact be referenced with another word, such as patching. And finally, the last one we've said is clause 22.2(f), special work, which is applicable to the civil sector, which we say is also outmoded and have sought to have deleted.

PN73

So we should say that wherever we've noted that it's our view that a particular allowance is outmoded, that in fact the consequence should be that it be deleted.

PN74

THE DEPUTY PRESIDENT: Or in the context of developing an amount which might be added to the industry allowance to take into account the abolition of disability allowances, the amount that should be attributed, on your submission, would be zero. Yes?

PN75

MS SOSTARKO: With reference to those amounts, yes.

PN76

THE DEPUTY PRESIDENT: I understand. Ms Adler, you have this other table of semi-agreed and disputed allowances?

PN77

MS ADLER: In relation to all purpose?

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MS ADLER: Yes, I do. I have one copy here, but I have copies electronically that I can send.

PN80

THE DEPUTY PRESIDENT: We can photocopy that quickly. Mr Maxwell, how do you say - and there will be all purpose skill allowances. Are there any all-purpose disability allowances?

PN81

MR MAXWELL: Yes, there are.

PN82

THE DEPUTY PRESIDENT: Yes.

PN83

MR MAXWELL: The factory furnace and acid work allowances are all purpose; the underground allowance is all purpose; the lift industry allowance is all purpose.

PN84

THE DEPUTY PRESIDENT: Sorry, the which?

PN85

MR MAXWELL: Lift industry.

PN86

THE DEPUTY PRESIDENT: Lift industry, yes.

PN87

MR MAXWELL: I think there's one more, which is the ‑ ‑ ‑

PN88

THE DEPUTY PRESIDENT: The all other purpose in case we've forgotten a purpose allowance.

PN89

MR MAXWELL: Yes, sorry, the hydraulic hammer allowance is all purpose as well.

PN90

MS SOSTARKO: What's the reference, Stuart, of hydraulic hammer?

PN91

MR MAXWELL: Sorry?

PN92

MS SOSTARKO: What's the clause reference? Yes, 22.3(q).

PN93

MR MAXWELL: (q), yes.

PN94

MS SOSTARKO: I actually don't have that listed as all purposes. Is that by your record?

PN95

MS ADLER: I just need to get my piece of paper back.

PN96

THE DEPUTY PRESIDENT: My associate will be back in a few minutes. Looking at that list, although it says - so all of the items 1 through 21 are agreed? Yes. And of those allowances, the disability allowances are - obviously the industry allowance; the special allowance, is that the civil construction one to which reference was made?

PN97

MR MAXWELL: The special allowance, 21.1, is the fixed amount of 7.70 that's paid in lieu of loadings, et cetera, from the award.

PN98

THE DEPUTY PRESIDENT: Yes, all right. That ‑ ‑ ‑

PN99

MS SOSTARKO: Sorry, you're right. It's 22.4(f) which is the outmoded term.

PN100

THE DEPUTY PRESIDENT: That special allowance is the transition from the multiple awards and the overs and unders calculation that was made last time.

PN101

MR MAXWELL: It actually goes back to the National Building Trades Construction Award 1975, I think.

PN102

THE DEPUTY PRESIDENT: All right. So that allowance, the industry allowance, and the underground allowances, so items 11 through 14, are disability?

PN103

MR MAXWELL: Yes.

PN104

THE DEPUTY PRESIDENT: It's agreed that 15 is skill?

PN105

MR MAXWELL: Sorry, your Honour, perhaps if I go back to the special allowance. I think special allowance, I think under the document the Full Bench produced, they had it down as an expense related.

PN106

THE DEPUTY PRESIDENT: Yes. But it's a disability-related allowance, is it? I'm just having a look at it. Just hang on a second. I see, it's excess travel and removal of loadings, so it's an expense.

PN107

MS SOSTARKO: We actually say that's a skill now.

PN108

MR MAXWELL: Essentially, your Honour, it was an allowance that was decided on when they moved from a paid rates award to a minimum rates award.

PN109

THE DEPUTY PRESIDENT: Yes. We will park that one for a minute. So 12 through 14 are disability; 15 is a skill; 16 and 17 are disability. Yes?

PN110

MR MAXWELL: Yes.

PN111

MS SOSTARKO: Yes.

PN112

THE DEPUTY PRESIDENT: 18 is a skill; 19, 20 are disability?

PN113

MR MAXWELL: Yes.

PN114

THE DEPUTY PRESIDENT: And is 21 disability, or is there a particular skill in using a hydraulic hammer?

PN115

MR MAXWELL: It's difficult. We say that is disability.

PN116

MS SOSTARKO: Yes, we would concur with that.

PN117

THE DEPUTY PRESIDENT: So save for 11, which we will park, the list and the categories in the all-purpose allowance list, 1 through 21 are agreed. Now, disputed matters: disputed as to whether they're all purpose, is that the issue?

PN118

MS SOSTARKO: Yes, that's right.

PN119

THE DEPUTY PRESIDENT: How do we resolve the first issue? Mr Maxwell, why do you say it's all purpose?

PN120

MR MAXWELL: Your Honour, in regard to the mobile cranes adjustment formula, I suppose if I was perfectly honest I would say there's a question about whether that's still necessary. I do so on the basis that when you look at the classification structure, the CW1 to 9 in the award, you will see that the various size of mobile cranes are catered for in the classification structure.

PN121

The mobile crane adjustment formula was because of the way different awards treated mobile cranes, and so under the National Building and Construction Industry Award there was the classification up to, I think, CW4; and then for every 40 tonnes above 100 tonne they got paid an extra amount.

PN122

But now if you look at the classification structure, if you look at the - so for example if you look at the CW7 classification, that includes a mobile crane with a lifting capacity in excess of 180 tonne and not exceeding 220 tonne. So the classification structure itself already provides, I suppose, a de facto measure of how those allowances have traditionally be applied. So to some extent if that was removed - I suppose there are two questions, one is ‑ ‑ ‑

PN123

THE DEPUTY PRESIDENT: So that's CW7, is it?

PN124

MR MAXWELL: Yes. The problem is that the - sorry. That also includes a mobile crane with a lifting capacity in excess of 220 tonne.

PN125

THE DEPUTY PRESIDENT: I see that, yes.

PN126

MR MAXWELL: So in other words, as I say, I suppose the issue ‑ ‑ ‑

PN127

THE DEPUTY PRESIDENT: So you're making the case for its abolition.

PN128

MR MAXWELL: ‑ ‑ ‑ is whether you keep it or only keep it in regard to above 220 tonne.

PN129

THE DEPUTY PRESIDENT: Above 220, yes. And the classification structure doesn't seem to envisage a mobile crane above that capacity.

PN130

MR MAXWELL: That's correct.

PN131

THE DEPUTY PRESIDENT: Is there such a thing?

PN132

MR MAXWELL: There definitely is. The mobile cranes go up to 1000 tonne.

PN133

THE DEPUTY PRESIDENT: Views of others?

PN134

MS ADLER: We don't have a strong view about this allowance, your Honour.

PN135

THE DEPUTY PRESIDENT: Not much of a need for a 1000-tonne capacity in your industry, Ms Adler.

PN136

MS ADLER: No.

PN137

MS SOSTARKO: I think without technical instruction from my membership it's difficult for me at this point to be able to advance a view as to why at that time when we had those discussions we reached that position. If there's any capacity to take this point, given its technical nature, on notice, it would be appreciated.

PN138

THE DEPUTY PRESIDENT: Yes, all right. I think at least from Mr Maxwell's perspective, as a minimum there would be an adjustment to the tonnage at which the additional allowance would kick in to above 220. That's the minimum position of the CFMEU. I don't think anyone would dispute that. It's just a question whether it's an all-purpose and whether it should be retained at all. How long does the MBA want?

PN139

MS SOSTARKO: If we take a break at some point and I can make a call, then certainly I can have that question answered quite quickly, I would think.

PN140

THE DEPUTY PRESIDENT: All right.

PN141

MS SOSTARKO: I appreciate that.

PN142

THE DEPUTY PRESIDENT: We will leave that as is. But on the more central question, whether it's all purpose as well.

PN143

MS SOSTARKO: Yes, sorry. From that perspective that should be an answer I should be able to obtain quite quickly.

PN144

THE DEPUTY PRESIDENT: All right. Air-conditioning industry allowance.

PN145

MR MAXWELL: Well, your Honour, it's more an issue for Mr Nguyen, but perhaps if I can just say this, that when you look at clause 19.3(b) of the award, which sets out how you calculate the hourly rate with the hire employees, it sets out that it includes "where applicable" and then it lists the air-conditioning industry and refrigeration industry allowances. So we say if it's included in the hourly, then it becomes an all purpose.

PN146

And just, I suppose for convenience, it also includes the in charge of plant allowance as well, which is the next one.

PN147

THE DEPUTY PRESIDENT: Yes.

PN148

MS ADLER: The problem is, your Honour, the wording of the actual provisions doesn't express that they're payable for all purposes; whereas, for example, the electricians allowance is expressed within the substantive clause as an all-purpose allowance. So it's the inconsistency which leads, I think, to the different views.

PN149

THE DEPUTY PRESIDENT: The clauses that you're comparing?

PN150

MS ADLER: So for example clause 21.11 is the air-conditioning industry and refrigeration industry allowance. And the way that clause is drafted doesn't expressly say that it's payable for all purposes; whereas, for example, the electricians licence allowance at 21.12, which is also included in clause 19.3(b), at item (a) does say that it's payable for all purposes of the award.

PN151

THE DEPUTY PRESIDENT: All right, so ‑ ‑ ‑

PN152

MS PAUL: Sorry, your Honour.

PN153

THE DEPUTY PRESIDENT: Yes, go on.

PN154

MS PAUL: Additionally, if you actually look at the, "The employee in receipt of the allowance will not be entitled to special rates," in 22(a) and goes through.

PN155

I don't think those allowances in themselves would be seen as all-purpose allowance; therefore arguably I understand Mr Maxwell's position, but the actual clause seems to imply fairly strongly that it's not an all-purpose allowance if the intention of the air-conditioning and refrigeration industry allowance was to effectively be paid in lieu of the other allowances, 21.11(b); and those allowances don't appear to be all purpose allowances.

PN156

But I'm happy to be corrected, I've only checked a few of them, but I don't think they are all purpose allowances.

PN157

THE DEPUTY PRESIDENT: And your point, Mr Maxwell, in very simple terms is that the rate for the other purposes in the award is the hourly rate of pay that's calculated by reference to, in the case of weekly hire employees, paragraph (b) of 19.3, they include all of those allowances, and that's how you get there.

PN158

MR MAXWELL: That's right. And also, your Honour, if you go to the - in the definitions clause of the award, which is clause 3, you will see that the ordinary time hourly rate means - it says:

PN159

For weekly hire employees the hourly rate calculated in accordance with clause 19.3(b).

PN160

So there's clearly a recognition under the award that the ordinary time hourly rate includes those allowances, and therefore on that basis really, an all-purpose allowance.

PN161

THE DEPUTY PRESIDENT: And the reference, for example, in clause 21.1(ii) to all purposes "this award" is an error effectively because it's over-exuberant drafting.

PN162

MR MAXWELL: Your Honour ‑ ‑ ‑

PN163

THE DEPUTY PRESIDENT: Or don't know.

PN164

MR MAXWELL: The problem we had is that this award was drafted ‑ ‑ ‑

PN165

THE DEPUTY PRESIDENT: I'm not being critical of anybody, I'm just trying to reconcile your argument.

PN166

MR MAXWELL: No, I know, but he was drafted by the Full Bench when the award modernisation. I think one of the problems with these awards was that although they're intended - - -

PN167

THE DEPUTY PRESIDENT: For which an exposure draft was put out.

PN168

MR MAXWELL: Yes. Although they're intended to be all purpose, people didn't really, I don't think - - -

PN169

THE DEPUTY PRESIDENT: Turn their minds to the interaction between various clauses.

PN170

MR MAXWELL: ‑ ‑ ‑ turn their mind to that issue.

PN171

THE DEPUTY PRESIDENT: We are left with that must now. I understand that.

PN172

MR NGUYEN: If I can just add ‑ ‑ ‑

PN173

THE DEPUTY PRESIDENT: Yes, go on.

PN174

MR NGUYEN: If I can just add one - listening to what Ms Paul said earlier, like, I don't think that it's paid only in relation to those special rates, it just indicates that those special rates - will not be entitled to those special rates.

PN175

MS PAUL: No, I wasn't intending that that was to replace it solely, but it was on the basis that if an employee in receipt of this allowance will not be entitled to special rates, there is an implication that - as it doesn't state it's an all-purpose allowance, there's an implication, therefore, that you look at the next best thing in that clause; that seems to indicate that when the employee receives that, it is also in contemplation of not receiving the installation, hot work, cold work, et cetera; all of those are non-purpose allowance.

PN176

But additionally, using Mr Maxwell's logic, the hourly rate to be calculated would effectively mean - because that term "hourly rate" seems to be used in both all-purpose allowances and non-all-purpose allowances throughout - you would be extending the nature of a number of these allowances, which we accept aren't all purposes, to become all purposes, if you say it's based on that definition of how the hourly rate ‑ ‑ ‑

PN177

MS ADLER: That was just a referencing exercise definition.

PN178

MS PAUL: I think that's more a calculation mechanism, as opposed to a representative about whether an actual allowance is all-purpose or not. One has to actually look at the clause that reference is the actual allowance.

PN179

There is nothing in the actual clause that seems to indicate that there was an intention for the air-conditioning industry and refrigeration industry allowances to be all purpose, which would give rise to - the redrafting of clause 19 might need to be looked at, but we've got some concern if we simply use that as a mechanism to override what was a clear intention in the actual - - -

PN180

MR MAXWELL: I disagree with that because when the term "ordinary time hourly rate" was inserted it was clear that the intent of that was to - so it could then be clearly used for purposes such as annual leave, for sick leave; and there was this whole argument that was run by the MBA about having properly set reference rates in the award, and these definitions were a result of an agreed outcome during - I can't recall whether it was the two-yearly review or whether it's a separate proceedings.

PN181

MS SOSTARKO: I think, though, perhaps the point that Ms Adler made, which is the inconsistency in the expression - and if you look at 19.3(b) and it talks about the "allowances where applicable", and then it goes on to list the air-conditioning allowance and the electricians licence allowance, and if you work on the premise that then whatever is prescribed under that specific allowance, it differs as to whether the electricians licence allowance, which is clearly for purposes, which differs very much in the way that 21.11 is drafted. So there is a lack of clarity there, there's no doubt.

PN182

THE DEPUTY PRESIDENT: The practical consequence would be that in relation to the calculation of the hourly rate one would in fact have to calculate two hourly rates; one which is the hourly rate, and one which is the hourly rate for all purposes, which would be a different hourly rate on that analysis. Yes?

PN183

MS SOSTARKO: Yes.

PN184

THE DEPUTY PRESIDENT: That's the effect of their ‑ ‑ ‑

PN185

MR MAXWELL: That's the effect of (indistinct).

PN186

THE DEPUTY PRESIDENT: All right. Is there any real prospect of agreement, or does this require a determination?

PN187

MR MAXWELL: I think in regard to those three, we say it requires ‑ ‑ ‑

PN188

THE DEPUTY PRESIDENT: We will come back to mobile crane a bit later; but the last two, air-conditioning and in charge of plant.

PN189

MR MAXWELL: We say clearly that they're all-purpose based on the definition of ordinary time, hourly rate, and the calculation of the hourly rate under 19.3(b).

PN190

THE DEPUTY PRESIDENT: I understood that argument. My question was whether or not there is any prospect of an agreement, or do you require it to be determined?

PN191

MR MAXWELL: If the employers are opposing that, we require it to be determined.

PN192

THE DEPUTY PRESIDENT: The employers aren't going to cave in; make my Christmas? No? All right. That's noted, and it's a matter that will need to be decided. Do the parties want to file any submissions, or are you happy to stand on the arguments that you've advanced?

PN193

MR NGUYEN: Yes, your Honour. I think we should probably be afforded an opportunity, because I do recall that I think there was a translation issue in the award modernisation that there were - this is the section where the allowance were all purpose, and when the words were taken away obviously the section indicating that it was all - that's my recollection, anyway - those words were translated. So if I could just be afforded an opportunity to check that history and come back to you with that written history.

PN194

THE DEPUTY PRESIDENT: Does anybody else want to make some submissions?

PN195

MS PAUL: We might want to review what the AMWU may want to say, but apart from that, we would otherwise rest with the comments we've made today.

PN196

THE DEPUTY PRESIDENT: Mr Nguyen, how about 15 January?

PN197

MR NGUYEN: Thank you.

PN198

THE DEPUTY PRESIDENT: And seven days thereafter. Yes, all right. Does it follow from the discussion that we've had, when you take into account the disability allowances that are all purpose and the disability allowances that are not all purpose, that they will have to be separately identified in a roll-up rate, if that's where we go? In other words, there will be two?

PN199

COUNSEL: I think so, your Honour.

PN200

THE DEPUTY PRESIDENT: Because of the consequences. Yes?

PN201

MS ADLER: Again, your Honour, from the statement - and perhaps that's probably my misunderstanding - that those all‑purpose allowances would also be rolled up. I was working on the basis that it was just those that - I guess those that weren't.

PN202

THE DEPUTY PRESIDENT: That's why they will have to be separately. So your position is that the disability allowances that are all purpose shouldn't be rolled up, they should just be maintained.

PN203

MS ADLER: I guess we hadn't turned our mind to it, your Honour.

PN204

THE DEPUTY PRESIDENT: Or alternatively - I mean, the prospect of, for example, somebody being in receipt of an underground allowance and an air-conditioning industry allowance at the same time, assuming they were an all‑purpose allowance - suggesting that, but just as an example - would be remote. And likewise, underground allowance and a factory bricklaying allowance.

PN205

MS ADLER: Yes.

PN206

THE DEPUTY PRESIDENT: So it's probably there is some sense in separating those. I understand that.

PN207

MS PAUL: Your Honour, we might also flag that if in fact, for example, the air-conditioning industry allowance was - whether it's all purpose or not - as it's intended to replace the other allowances listed below, there needs to be some ‑ ‑ ‑

PN208

THE DEPUTY PRESIDENT: Allowance for that.

PN209

MS PAUL: Yes.

PN210

THE DEPUTY PRESIDENT: Yes, I understand. And that's the same for, for example, asbestos eradication, just as an example, because ‑ ‑ ‑

PN211

MS PAUL: We already have another role - in these allowances we already have a role of that nature.

PN212

THE DEPUTY PRESIDENT: Yes. That was going to be one of the matters that I was going to point to when we got to (3). It seems to me that there has been some attempt, at least in part, to roll up an area. All right. Rather than moving on to the next item, perhaps it might be an appropriate time for us to adjourn for, say, half an hour and allow you to get those instructions, and we will try and finalise at least one issue; tick it off my Christmas list.

PN213

Let's return at quarter past. Just let my associate know if you need any more time. Thanks very much.

SHORT ADJOURNMENT [10.47 AM]

RESUMED [11.21 AM]

RECORDING COMMENCES [11.21 AM]

PN214

MS SOSTARKO: ... and that is twofold, and that firstly obviously there's a test that needs to be applied in order for it to be enlivened, that is above the 40-tonne measure, but not to mention the fact that the advice that I've received from our member is that this clause was actually one that carried over from the NBCIA 18.1.3(a), and that the same approach was applied under that award. So this has been the approach that has been applied to this particular allowance for quite some time. So on that basis that we would argue that no, it's certainly not payable for all purposes.

PN215

And if I could also add that during that conversation, with regard to the air-conditioning industry allowance 21.11, as well as the in charge of plant, that our understanding is that firstly that no, it's not payable for all purposes in that it's applicable to weekly hire employees; and even then, only where applicable.

PN216

THE DEPUTY PRESIDENT: But the question is when applicable is it for all purposes, that's all.

PN217

MS SOSTARKO: Not for all purposes.

PN218

THE DEPUTY PRESIDENT: It's obviously a situational allowance, but - yes.

PN219

MR MAXWELL: Just in regard to the in charge of plant, the in charge of plant is payable for those people that have responsibility of ‑ ‑ ‑

PN220

THE DEPUTY PRESIDENT: Being in charge of plant.

PN221

MR MAXWELL: In terms of repairs and so forth. So it's, I suppose, a skill-related allowance, but it was part of their rate.

PN222

THE DEPUTY PRESIDENT: For the purposes of - those three items remain not agreed.

PN223

MS SOSTARKO: Correct.

PN224

MR NGUYEN: I mean, your Honour, I guess ‑ ‑ ‑

PN225

THE DEPUTY PRESIDENT: Why don't you let me finish? Thanks. And those three matters are presently not agreed, and the mobile crane adjustment formula and the in charge of plant allowances and skill allowances; the air-conditioning industry allowance is an industry allowance which seems to be a disability allowance.

PN226

MR NGUYEN: I think it's a - taking into account the conditions of those workers in that particular industry.

PN227

THE DEPUTY PRESIDENT: Disability allowance, right. And going back to the mobile crane issue, Mr Maxwell, are you content, putting aside whether or not it's all purpose, that as a minimum, the provision be adjusted to reflect the taking into account the performance of those functions in the CW7 classification so that the lifting capacity of - above 220?

PN228

MR MAXWELL: Yes. Because when you look at the lower classifications, they include a range of tonnage.

PN229

THE DEPUTY PRESIDENT: So that's not in dispute, presumably. It's another Christmas gift ‑ ‑ ‑

PN230

MS SOSTARKO: This is a point that we haven't actually considered previously. I'm not sure that that ‑ ‑ ‑

PN231

THE DEPUTY PRESIDENT: You want to pay it from the lower allowance on top of the fact that it's already taken into account in the rate of pay?

PN232

MS SOSTARKO: I understand where the CFMEU are coming from and that there's a discrepancy under the classifications. It's just something, as I said, that we haven't yet turned our minds to. So I would ask that we would ‑ ‑ ‑

PN233

THE DEPUTY PRESIDENT: Perhaps you can let me know ‑ ‑ ‑

PN234

MS SOSTARKO: ‑ ‑ ‑ if we have any - if there is any alternate view on that position we would appreciate the opportunity to be able to make that.

PN235

THE DEPUTY PRESIDENT: Perhaps you just let me know of your position by 15 January as to either that you agree with the proposal to alter 19.5 so that the lift capacity reference to 100 tonnes will be above 220 tonnes; or if you don't agree, then set out your position. In the event that the MBA does not agree, then any party who wants to apply in opposition to that view, they can do so seven days thereafter.

PN236

So to the extent that there needs to be a determination as to the question whether any or all of the three disputed allowances are all-purpose allowances, then subject to the additional submissions that the AMWU will make, and any reply submissions, then the Full Bench will determine the question. Now, Mr Nguyen.

PN237

MR NGUYEN: During the break I did identify the particular award that the air-conditioning allowance came from, which is the National Metal and Engineering On-Site Construction Industry Award 2002, and I did speak to Ms Paul from the Ai Group about that history, which indicated that in clause 18.1 and 18.6 of that award it's clear that when you read those two clauses together, that the air-conditioning allowance is paid for all purposes, and that's where the allowance came from.

PN238

So when it was translated across, only the specific 18.6 clause, which was the air-conditioning allowance, translated into the modern award; but the introductory clause, which says that, "The following allowances will be paid for all purposes," was not translated, and so that's the reason why the modern award contains those clauses.

PN239

I didn't get an opportunity to speak to Ms Sostarko because she was seeking instructions, but perhaps she may also not oppose based on that history.

PN240

MS PAUL: Your Honour, our view would be that we can raise no objections to covering that as an all‑purpose allowance, subject to one aspect which we've already discussed, that we might need to somehow reflect that within the clause itself, because it really ‑ ‑ ‑

PN241

THE DEPUTY PRESIDENT: On the assumption that there isn't a - there's no longer going to be a general dispute about ‑ ‑ ‑

PN242

MS PAUL: From our perspective, but obviously ‑ ‑ ‑

PN243

MS SOSTARKO: We would ask that Mr Nguyen, as per your direction, perhaps put those submissions in writing, and if we need to make a formal response, we do so.

PN244

THE DEPUTY PRESIDENT: Perhaps, Mr Nguyen, you could do that before the 15th so we can speed it up. Would that be okay?

PN245

MR NGUYEN: I can do that this afternoon?

PN246

MS SOSTARKO: Thank you.

PN247

THE DEPUTY PRESIDENT: There you go. Subject to that, if the parties find themselves in heated agreement and there's an issue about how it's reflected, can I ask the parties to simply confer on how that might be reflected and provide some short notes to that effect. Thank you, Mr Nguyen. Are there any other aspects of the various allowances that need to be clarified?

PN248

Bearing in mind I'm focusing presently on the disability allowances, since they're the ones that are likely to be materially affected, and noting what we said in our most recent note, that we're not going to abolish the lift industry allowance, so that will be retained as a separate item. Are there any other allowance matters that need to be canvassed? All right. Thank you all for that.

PN249

If we can then move to the structural definitions. I'm trying to find your note, Ms Adler. Presumably there isn't any difficulty in simply adopting the definitional proposals that currently exist in the award in relation to building construction, civil construction, et cetera; there's no difficulty with that?

PN250

MS PAUL: No, your Honour.

PN251

THE DEPUTY PRESIDENT: Over to you, Ms Adler.

PN252

MS ADLER: I guess only to restate what I put in that letter, that we have some concerns about the proposed definition in the most recent statement. The term "single occupancy" is obviously open to interpretation and potentially confusing for the industry; and secondly we are concerned about introducing another threshold for multi-storey which is different from the allowance in the award.

PN253

THE DEPUTY PRESIDENT: Single occupancy is something that is used, I think from memory, in the definition of cottage industry and most certified agreements, at least in Victoria. It doesn't seem to have caused confusion there. What's intended is that it be a single dwelling and not ‑ ‑ ‑

PN254

MS ADLER: So is that envisaged to include row housing, manor housing, those sorts of things?

PN255

THE DEPUTY PRESIDENT: If it were manor housing on one estate that would be multiple dwelling, would it not?

PN256

MS ADLER: We would say that's still part of the low-rise residential construction industry, and that's I guess where the discussion begins.

PN257

THE DEPUTY PRESIDENT: Yes, off you go.

PN258

MS ADLER: And the second point is around the height threshold. I know that we proposed that originally and we adopted the definition in the allowance of a multi-storey at five.

PN259

On further discussions internally the view was come to that the better option may be to remove the height question as a separate allowance and simply have a residential construction industry allowance apply where the building is for residential purposes, which I think is pretty well understood to mean if you live in it, as opposed to a commercial building where obviously no one is actually intending it is a residence; and then where you are working at height and whatever that threshold is, whether it's the four storeys as proposed or the five storeys in the multi-storey allowance, then a different separate allowance would apply in lieu of the industry sector specific allowances.

PN260

THE DEPUTY PRESIDENT: But simply referring - what would be the difference between a commercial office block and a residential office block? There are 60 story residential blocks in Melbourne CBD.

PN261

MS ADLER: That's why the separate working at height - or whatever you want to call it - industry allowance would apply in lieu of any industry sector-specific allowance. So that would incorporate any additional disability allowance, plus a disability allowance for height, and that would apply across all sectors.

PN262

THE DEPUTY PRESIDENT: I see. But the other allowances which would form the industry allowance in relation to building construction, how would they operate in residential construction of - large residential complexes, as I said, in Melbourne are very common.

PN263

MS ADLER: So I guess from our perspective we saw that that height factor was the defining difference between - - -

PN264

THE DEPUTY PRESIDENT: I think Mr Maxwell will tell you that there are a range of other allowances that apply in the construction industry beyond - in the commercial construction sector beyond height.

PN265

MS ADLER: No, I'm not disputing that. I guess from a residential perspective I - - -

PN266

THE DEPUTY PRESIDENT: But I guess I'm trying to tease out your definition of residential as someone is going to live there.

PN267

MS ADLER: Yes.

PN268

THE DEPUTY PRESIDENT: It's not as big a problem in Sydney - problem is the wrong word - it's not as big an issue in Sydney as it is in places like Melbourne where if you wander around the CBD in the inner city it's not uncommon for there to be 20, 30, 40-storey residential complexes. No one lives in them, but that's a different issue.

PN269

MS ADLER: That's why they have a tax now, don't they, for vacant property? But I guess - and I guess we would - - -

PN270

THE DEPUTY PRESIDENT: And then you have the multiuse complexes where the first 20 storeys might be residential and the rest might be commercial, or the other way around.

PN271

MS ADLER: I guess. I mean, I tried to, in table B, pull out those that we say would apply only in residential, not commenting on those that what applied in residential and commercial or only in commercial.

PN272

And I guess all I can say is that we thought that the most logical difference was a height trigger, and so if you had one height industry allowance that didn't discriminate across sectors, that removed some of the potential difficulty in working out whether the residential industry allowance applied or some other - the general building and construction industry allowance applied.

PN273

THE DEPUTY PRESIDENT: I suppose what we had in mind was to excise what I would describe as the cottage residential sector as opposed to building construction, which would include high-rise multiple-unit construction, which would continue to be part of the building construction sector. That's where the residential construction definition came from.

PN274

MS ADLER: And I don't know that we would necessarily disagree with that. I guess we're just proposing a different way of doing that. When you are engaged in multi-storey construction, then whether it's residential or commercial becomes - the construction processes become more similar than they do for a single dwelling or row housing or manor housing or any of those sorts of constructions.

PN275

THE DEPUTY PRESIDENT: But that would, in effect, would it not, add a fifth layer or a four a half layer.

PN276

MS ADLER: Well yes, it would add another on top of the four sectors; it would add another ‑ ‑ ‑

PN277

THE DEPUTY PRESIDENT: Sub-sector.

PN278

MS ADLER: Yes.

PN279

THE DEPUTY PRESIDENT: Which would be not commercial, not cottage, but high-rise, high-density ‑ ‑ ‑

PN280

MS ADLER: Development.

PN281

THE DEPUTY PRESIDENT: Development, yes. Mr Maxwell.

PN282

MR MAXWELL: Your Honour, we are opposed to separating residential construction from building and construction. When you look at the allowances - I've got a table here which sets out the disability allowances by sector.

PN283

THE DEPUTY PRESIDENT: Thank you, Mr Maxwell.

PN284

MR MAXWELL: Your Honour, in this table - and I suppose just to explain the colour coding, the yellow means that the allowances are applicable across all four sectors; the light blue means that they are applicable across general building, civil construction, metal engineering construction; the brown show that there are applicable across general building, civil construction, residential building and construction; and then we've got the grey where they're both.

PN285

THE DEPUTY PRESIDENT: Sorry, the red-orange was?

PN286

MR MAXWELL: Building; general building construction, civil construction, and residential building and construction; and then the grey ‑ ‑ ‑

PN287

THE DEPUTY PRESIDENT: So in simple terms the blue is not residential.

PN288

MR MAXWELL: That's right.

PN289

THE DEPUTY PRESIDENT: But everywhere else; and the green is not metals but everywhere else.

PN290

MR MAXWELL: Yes. And then the grey ones at the bottom are not civil and not metal and engineering.

PN291

THE DEPUTY PRESIDENT: Yes.

PN292

MR MAXWELL: The purpose of this is to show that generally the allowances are applicable across the various sectors, and that if you look at the residential building and construction, the only ones that possibly wouldn't - and this is based on the definition that's put forward by the Full Bench, it's not one we necessarily agree with, but it's the one put forward by the Full Bench.

PN293

THE DEPUTY PRESIDENT: No, I understand.

PN294

MR MAXWELL: But it means that the multi-story allowance, the factory bricklaying, cofferdam, hot work and cold work, swinging scaffold; I've included dirty work there because I'm not sure what would be excessively dirty about working in residential construction; fumes, the furnace acid work and heavy blocks, and the suspended work platform in that first lot; and then the towers, brew cylinders and spray application, waste disposal.

PN295

So that they are the (indistinct) that would be separate. So that's why we see a difficulty in having different industry allowances between those two sectors. And we believe that perhaps a better way of moving forward would be to - I think you could identify height allowances as a separate clause because when you look at the award, with height allowances I think there are about five allowances or six allowances that would apply, and employees are normally only paid on of them.

PN296

The only slight area of where two may apply is in regard to people working on towers, they could apply the multi-storey allowance or the towers allowance. But otherwise if on a multi-storey building you get paid the multi-storey allowance; however, if you're operating from a suspended work platform you got paid that allowance; if you were working from a swing scaffold you get paid that allowance instead of the multi-story; you then have employees working at heights where they don't have a wide platform above nine metres; and then you have people working on rooves.

PN297

They are the height allowances that apply under the award, and basically people are only really paid one of them. So you can identify those as allowances. You then have what's left ‑ ‑ ‑

PN298

THE DEPUTY PRESIDENT: So just going back to that, so do you propose rolling it up to basically one height allowance or five separate height allowances?

PN299

MR MAXWELL: I'm suggesting we leave them as five separate ones because they each apply in different areas. There may be scope to, I suppose, consolidate those that aren't on a swing scaffold, a suspended work platform or multi-storey, and then just have another allowance to say that if you're working on any other structure you get paid so much for every 15 metres. That may be one way of dealing with the balance.

PN300

Then in the rest of the special rates you could group those according to specific work functions or areas. So for example the hot and cold work, they really both relate to working in an artificial environment, so you could have an allowance to say if you work in an artificial environment where the temperature is increased or decreased, if it's hot or cold work, you get paid an allowance, this is an allowance.

PN301

There are a number that are tool-related, and that's explosive power tools, stonemasons cutting tools, plaster or composite spray, dry plotting of tiles, cutting tiles, grind stone allowance, and pneumatic tool operation. And again, most people would only be entitled to one of those because it's clearly identified in the award that these are any additional allowances that apply to the use of tools.

PN302

You could treat them in regard to material-related, so that would include toxic substances, fumes, asbestos, bitumen work, and insulation. And there are some that related to brick and block laying, some just to painting, some just relating to operators. But by doing that it would then be easier for people just to pick up the award and read to see what allowances apply to them. And it means that no one is disadvantaged.

PN303

THE DEPUTY PRESIDENT: So your proposal would involve grouping the allowances based on their similarity, and then just breaking those down to effectively: this allowance is paid in any of these circumstances; this allowance is paid in certain times, (a), (b), (c), (d); this allowance, height, is paid in circumstance blah-blah-blah; and so on.

PN304

So that there would be, in effect, fewer allowances, but descriptions in respect - the same allowance might be triggered by a different circumstance, so hot/cold, et cetera; and it would be the one allowance for that. And there might be differences presently existing.

PN305

What would be attractive in that proposal from my perspective would be that where there's a difference in the allowance, that being narrowed - ie, disappear - so that we're effectively not just putting them under different headings and having the same result.

PN306

MR MAXWELL: We haven't gone that far.

PN307

THE DEPUTY PRESIDENT: I understand that.

PN308

MR MAXWELL: But we believe there is scope to do that.

PN309

THE DEPUTY PRESIDENT: Yes.

PN310

MR MAXWELL: For example, if you look to the civil sector, if you took out the compressed air work because allowances are so - the range is so high - with what's left you could then say that: for employees engaged on civil work the following allowances are paid for people involved on piping aluminium, powdered lime dust, sand blasting, et cetera.

PN311

THE DEPUTY PRESIDENT: So your proposal would involve a consolidation, but to a lesser degree than that which we envisaged.

PN312

MR MAXWELL: Yes.

PN313

THE DEPUTY PRESIDENT: But would have the effect of reducing the number of allowances, and thereby the complexity.

PN314

MR MAXWELL: Yes.

PN315

THE DEPUTY PRESIDENT: Which are admirable things.

PN316

MR MAXWELL: And just to, I suppose, finalise on this issue about ‑ ‑ ‑

PN317

THE DEPUTY PRESIDENT: I was going to stop the transcript off then and ‑ ‑ ‑

PN318

MS SOSTARKO: Go on holidays.

PN319

MR MAXWELL: Your Honour, I was just going to raise in regard to the problems with definitions, there is a national construction code which has different classes of building work, and under that definition they define class 1 buildings as being stand-alone single dwellings or domestic of a residential nature. However, it doesn't apply if there is another property on top. So the problems with having a new definition is just - it's where do you start and where do you stop.

PN320

THE DEPUTY PRESIDENT: Your proposal would not require an additional definition.

PN321

MR MAXWELL: That's correct.

PN322

THE DEPUTY PRESIDENT: Putting to one side the detail in terms of the numbers that are assigned and how they're classified, but is there some attraction from the other parties to that sort of an approach?

PN323

MS ADLER: We don't have an issue with that. It's something we've talked about before Mr P Watson whenever we had conferences last year. It was another option. So no, we wouldn't have an issue with that sort of approach.

PN324

THE DEPUTY PRESIDENT: We're obviously keen to finalise the award as quickly as possible, and presumably before the next round of reviews get underway.

PN325

MS ADLER: It's going to delay that for a while.

PN326

THE DEPUTY PRESIDENT: Since there doesn't appear to be any prospect of the 4-yearly review legislation getting through at this stage. So how quickly, Mr Maxwell, could you develop a proposal which encompasses what your thinking is?

PN327

MR MAXWELL: Your Honour, I can probably get something out to the parties by the end of this week.

PN328

MS ADLER: We shut down on Wednesday.

PN329

MR MAXWELL: I get something to the parties before the end of the week, and that means that depending on when people are coming back in following New Year.

PN330

THE DEPUTY PRESIDENT: And when do people get back on deck after the Christmas and New Year break?

PN331

MS SOSTARKO: I'm back on second week of January. I think that the HIA is the same.

PN332

MS ADLER: Yes, same.

PN333

THE DEPUTY PRESIDENT: Mr Maxwell, are you away?

PN334

MR MAXWELL: I'm back on the 8th.

PN335

MS SOSTARKO: We're not going to the same place.

PN336

THE DEPUTY PRESIDENT: I'm actually back in Sydney on an appeal on 24 January, so we could stay on the 25th, for convenience, the day before Australia Day. So unless someone has got to go lamb shopping or something, can we do it on that day? Would that suit?

PN337

So on that basis, Mr Maxwell, if you circulate a proposal along the line - putting aside number for a moment. I don't want you to not think about that, but - and the other unions can obviously express a view about whether they support or have a slightly different view. And so if they have a different proposal or slightly different proposal, perhaps they can either consult Mr Maxwell before he finalises his document, or alternatively put something in afterwards.

PN338

And if the employer parties could respond by, say, the Friday before, which would be 19th, and that will give the other parties an opportunity to think about the response, and we can meet on 25 January.

PN339

MS SOSTARKO: Your Honour, what time are you proposing for 25 January?

PN340

THE DEPUTY PRESIDENT: What time would you like?

PN341

MS SOSTARKO: If it's possible to do 11 o'clock, your Honour, that would be appreciated.

PN342

THE DEPUTY PRESIDENT: 11 o'clock is fine.

PN343

MS SOSTARKO: Thank you.

PN344

THE DEPUTY PRESIDENT: In which case we can defer the unpleasant discussion of item 3 on my agenda for the time being.

PN345

MS PAUL: So, your Honour, that's on the 25th as a ‑ ‑ ‑

PN346

THE DEPUTY PRESIDENT: Conference, yes.

PN347

MS PAUL: You're planning to convene a conference, yes.

PN348

THE DEPUTY PRESIDENT: Thank you all for your attendance and your helpful input. I look forward to seeing you all on the 25th. All the best for the festive season, and have a safe and happy New Year. We're adjourned.

ADJOURNED UNTIL THURSDAY, 25 JANUARY 2018 [11.52 AM]