PN1

THE VICE PRESIDENT: I'll take the appearances. Ms Devasia, you appear for the AMWU?

PN2

MS A DEVASIA: If the Commission pleases, yes.

PN3

THE VICE PRESIDENT: Mr Maxwell in Sydney and Mr Nicholls in Melbourne appear for the CFMMEU?

PN4

MR S MAXWELL: Yes, your Honour.

PN5

THE VICE PRESIDENT: Mr Harrington, you appear for the Australian Industry Group.

PN6

MR H HARRINGTON: If the Commission pleases, yes.

PN7

THE VICE PRESIDENT: And, Ms Regan, you're on the phone for the HIA?

PN8

MS REGAN: Yes, your Honour.

PN9

THE VICE PRESIDENT: So I might get you to start, Mr Harrington. So there was a proposal advanced by AiG to simplify the small business redundancy clause.

PN10

MR HARRINGTON: Yes, thank you.

PN11

THE VICE PRESIDENT: So what would that involve? That would just involve what?

PN12

MR HARRINGTON: We won't expect the CFMEU to commence (indistinct) with their proposal regarding the glaziers and glass. We've not got a great deal to add from our initial submissions. Our position on the matter is fairly simple. We've not deviated from that which was expressed in our submissions originally. We consider it's sufficient to simply just simplify the proposed redundancy clause by including a link to the pre-modern Furnishing Industry Award.

PN13

THE VICE PRESIDENT: You mean a hyperlink?

PN14

MR HARRINGTON: A hyperlink, that's right. So the CFMMEU's submission of 8 February they've cited an extract from AIRC's decision on 30 December 09 with coverage provisions in the Manufacturing Award and the Joinery and Building Trades Award were varied so that the latter would cover downstream glass industry but exclude those employers or employees involved in the manufacture of glass from raw materials. So we're not of the opinion that this would cause too many issues with the Commission's task at this point in the four yearly review.

PN15

So the issue before us today relates more to how the provision concerning the small business redundancy entitlement might be simplified to allow readers some clarity considering the fact that the coverage provision in the Furnishing Industry National Award isn't necessarily at everybody's fingertips. So we'd propose that a link within the Manufacturing Award would be adequate to achieve this, so consent of the AIRC's decision on the coverage of the Manufacturing Award regarding glass and glazing we consider the Commission's proposed clause at paragraph 49 of the 11 December '18 decision adequately accounts for any concerns as the small business redundancy entitlement would only apply to an employee of a small business employer who performs work within the Manufacturing Award.

PN16

So if the CFMMEU's concerns is that the small business redundancy entitlement would extend further than the award that's more a question going to the coverage of the award itself rather than the wording of the provision at hand. So if the Commission pleases.

PN17

THE VICE PRESIDENT: Just hold on a sec. So, Mr Harrington, is it possible to relate the coverage of the previous national Furnishing Award to the coverage provisions of the current award?

PN18

MR HARRINGTON: In what respect relate, Vice President?

PN19

THE VICE PRESIDENT: I mean, is the coverage of the national Furnishing Award reflected in the descriptions of the work covered by, for example, the Manufacturing Award in clause 4.9?

PN20

MR HARRINGTON: Our understanding is that a portion of the coverage of the Furnishing Industry National Award was imported into the coverage of the Manufacturing Award at the time of the AMOD proceedings.

PN21

THE VICE PRESIDENT: Can that be identified in the clause itself?

PN22

MR HARRINGTON: We would ‑ ‑ ‑

PN23

THE VICE PRESIDENT: I mean we're talking about a - in relation to the Manufacturing Award we're talking about a subset of the coverage of the Manufacturing Award which was previously covered by the National Furnishing Award; correct?

PN24

MR HARRINGTON: Correct.

PN25

THE VICE PRESIDENT: So can we identify that coverage in clause - in the coverage clause of the Manufacturing Award so that we don't have to have a reference that's exterior to the Manufacturing Award itself, is that possible?

PN26

MR HARRINGTON: It may be possible, but I don't think it was as clear cut as that. I wasn't around at the time of the AMOD proceedings, but I don't believe it was a matter of cutting out sections of the Furnishing Industry National and inserting them into the Manufacturing Award. I think it was a little bit more messy than that. I think it would be difficult. It would be a little bit like unscrambling an egg and extracting those contents. We would potentially do the task and work it out from there, but we would need more time to do so. We've proposed a link because we consider it the simplest solution.

PN27

THE VICE PRESIDENT: So just hold on, Mr Maxwell. Yes, Mr Maxwell?

PN28

MR MAXWELL: Thank you, your Honour. Your Honour, I do share a concern with AiG in trying to pick out those parts of the old Furnishing Award that are covered by the Manufacturing Award. There are some that are easily identifiable, such as the picture frames made from other than wood, usual - sorry, the upholstery referred to ‑ ‑ ‑

PN29

THE VICE PRESIDENT: Sorry, what are you reading from?

PN30

MR MAXWELL: Sorry, I'm looking at clause 4.

PN31

THE VICE PRESIDENT: Yes.

PN32

MR MAXWELL: And 4.10(hh) refers to furnishings made from cane, bamboo and other like materials. And then (ii) upholstery furnishing, drapery, blinds, screens, awnings, mattresses and bedding. Where it gets messy is when you talk about flooring products made from other than wood and picture frames made from other than wood because when we look at the coverage of the old Furnishing Award part of that is now covered by the Timber Award, part of it is covered by the Joinery Award, and part of it is covered by the Manufacturing Award.

PN33

THE VICE PRESIDENT: Yes.

PN34

MR MAXWELL: And trying to decipher exactly what parts fit into the coverage of the Manufacturing Award I think would be problematic.

PN35

THE VICE PRESIDENT: Why? That is, the small business redundancy provision can only apply to employees covered by the Manufacturing Award in the first place.

PN36

MR MAXWELL: Yes.

PN37

THE VICE PRESIDENT: So why can't you identify those parts of the coverage of the Manufacturing Award which were previously covered by the Furnishing Award?

PN38

MR MAXWELL: You may then require to put in some specific - add some specific items into the coverage because some of them fall within, for example, there is a coverage under the Furnishing Award under 6.2.6 to optical work or glass excepting spectacle lenses or frames, and if you look under the coverage of the Manufacturing Award at 4.10(q) it refers to medical and optical instruments, appliances and equipment including, but not limited to spectacles, contact lenses and artificial limbs.

PN39

Whether the optical work or glass from the Furnishing Award is covered by - sorry, I've lost my spot. Followed by that part of the Manufacturing Award it probably is but that part of the Manufacturing Award is a lot wider in scope than that that was in the Furnishing Award. So that's a problem I see is that you may then need to put in some specific coverage provisions in 4.10 to pick up the exact provisions from the Furnishing Award that should apply.

PN40

THE VICE PRESIDENT: Is that the only example of that? I mean, I can see the point, but where else would that - what other old award would that coverage have come from?

PN41

MR MAXWELL: Some of it would've come from the existing Manufacturing Award.

PN42

THE VICE PRESIDENT: Yes, all right.

PN43

MR MAXWELL: Sorry, from the old Manufacturing Award.

PN44

THE VICE PRESIDENT: Yes, I understand. What's your proposal, Mr Maxwell?

PN45

MR MAXWELL: Your Honour, on reflection having looked at the difficulties in trying to unpack the Furnishing Award I think we'd probably support the AiG in that you retain the existing 23.4(b) so that it's that small business redundancy applies to work covered by the Manufacturing Award that prior to 1 January was covered by 6.1 to 6.6 of the Furnishing Award and then insert a hyperlink to that coverage provision.

PN46

THE VICE PRESIDENT: It's not going to be much use for somebody with a hard copy, is it, but ‑ ‑ ‑

PN47

MR MAXWELL: No. The other alternative is to put a schedule to the award of 6.1 to 6.6.

PN48

THE VICE PRESIDENT: I�m just trying to get a copy, but how much text is in 6.1 to 6.6?

PN49

MR MAXWELL: There is four and a bit pages.

PN50

MS DEVASIA: It's not the full ‑ ‑ ‑

PN51

MR HARRINGTON: We have three pages.

PN52

MR MAXWELL: Three pages.

PN53

THE VICE PRESIDENT: But of course it's not all that coverage went into the Manufacturing Award. I mean, can we do the reverse. Can we identify what coverage of the National Furnishing Award went into the Manufacturing Award by reference to the old award?

PN54

MR MAXWELL: I think we could. That would be an easier - were it to be done. For example, 6.2, glass and glazing, a lot of that is now covered by the Joinery Award, so that could be deleted. Clearly a lot of the ‑ ‑ ‑

PN55

THE VICE PRESIDENT: I'm just going back to the point you raised before, clause 6.2 of the old Furnishing Award ‑ ‑ ‑

PN56

MR MAXWELL: Yes.

PN57

THE VICE PRESIDENT: ‑ ‑ ‑that can't have any relationship to 4.10(q) which is about a different thing.

PN58

MR MAXWELL: No.

PN59

THE VICE PRESIDENT: But when it talks about glass or glazing is that reflected anywhere else in the Manufacturing Award?

PN60

MR MAXWELL: Glass and glazing was excluded from the Manufacturing Award and is now part of the Joinery Award.

PN61

THE VICE PRESIDENT: Joinery, okay. And musical instruments?

PN62

MR MAXWELL: Musical instruments are covered by (ll) under the Manufacturing Award.

PN63

THE VICE PRESIDENT: Yes. Yes. And 6.4, I mean, building - I mean, is that of any relevance any more?

PN64

MR MAXWELL: It may be relevant in regard to all the old equipment, but I'm not sure of the others.

PN65

THE VICE PRESIDENT: Wicker and baby carriages and wooden toys. If we deal with this in terms of 6.1 where does that fit into the Manufacturing Award?

PN66

MR MAXWELL: Under (m) at 4.10(m) it talks about furniture. It says stoves, ovens, steam cookers but then mentions furniture.

PN67

THE VICE PRESIDENT: Yes. And toys, others there.

PN68

MR MAXWELL: It's in 4.10(m).

PN69

THE VICE PRESIDENT: Yes, that's - I suppose we need to distinguish between wooden and other toys. Yes, all right. What about the Timber Award, can we identify what the coverage was there? Or do you want to leave that to Mr Nicholls.

PN70

MR MAXWELL: In regard to the Timber Award I think that that's a much easier fix.

PN71

THE VICE PRESIDENT: Okay.

PN72

MR MAXWELL: And perhaps I can address it on behalf of our manufacturing division.

PN73

THE VICE PRESIDENT: All right.

PN74

MR MAXWELL: I have had an exchange with Ms Wiles, who's not available and Mr Nicholls is standing in today. In regard to the Timber Award the issue there was the coverage in regard to the pulp and paper, but if you look at the provision that was looked at by the Full Bench, it only referred to the work covered by the previous Timber and Furnishing Awards, and all that area of work is still covered by the new Timber Award, so all that would need to be excluded would be the pulp and paper and people employed on piece work rates, which was ‑ ‑ ‑

PN75

THE VICE PRESIDENT: So just slow down, I just want to get this right. So ‑ ‑ ‑

PN76

MR MAXWELL: So in regards to ‑ ‑ ‑

PN77

THE VICE PRESIDENT: Just a second, if I understand you, does it work this way, that it could be expressed as applying to any small business covered by the award except for these? And what are the exceptions?

PN78

MR MAXWELL: And the exception would be employees covered by clause 4.2(f) which is the pulp and paper sector. And employees engaged on piece work rates which was an issue that was raised by the AiG in their submissions.

PN79

THE VICE PRESIDENT: All right.

PN80

MR MAXWELL: And that would deal with the Timber Award.

PN81

THE VICE PRESIDENT: Anything else?

PN82

MR MAXWELL: Nothing.

PN83

THE VICE PRESIDENT: Ms Devasia, do you want some ‑ ‑ ‑

PN84

MS DEVASIA: I have nothing further to add there, Commissioner. I would basically support the same idea of the CFFMEU and of AiG in that we thought that unpacking that award would be - the coverage clauses in the old Furniture Award would be problematic which is why we supported the idea of a link as well.

PN85

THE VICE PRESIDENT: Ms Regan, do you want to say anything?

PN86

MS REGAN: Nothing, your Honour, further to add than what is already said in relation to the Timber Award. We're sufficiently happy with what the Commission proposed in the December 2018 decision in paragraph 43, so there was a ‑ ‑ ‑

PN87

THE VICE PRESIDENT: Just remind me what that was? I mean, I just want to get - are you espousing a different position to that advanced by Mr Maxwell?

PN88

MS REGAN: No, not at all. Yes, in paragraph 43 of that decision it basically outlined what it already said in terms of it applies to all small business employers other than those in the pulp and paper sector.

PN89

THE VICE PRESIDENT: Mr Harrington, do you want to say anything in response?

PN90

MR HARRINGTON: Yes, just very briefly. So we wouldn't be conceding that all elements of glass and glazing would be excluded from the Manufacturing Award and that decision which has been cited already from the CFMMEU from the AIRC drew a line and effectively worked out what elements of glass and glazing are covered by the manufacturing, and what are covered by the joinery and building trades, so our view is that are still elements obviously that are covered by manufacturing.

PN91

THE VICE PRESIDENT: And where does one find the coverage of that in the coverage clause?

PN92

MR HARRINGTON: Yes, that is 4.10(ff).

PN93

THE VICE PRESIDENT: 4.10(f).

PN94

MR HARRINGTON: If we might just say if the Commission is ultimately ‑ ‑ ‑

PN95

THE VICE PRESIDENT: What about aircraft components?

PN96

MR HARRINGTON: Sorry?

PN97

THE VICE PRESIDENT: Did you say 4.10(f)?

PN98

MR HARRINGTON: No, (ff) sorry?

PN99

THE VICE PRESIDENT: (ff). Flat glass. I see, so flat glass. Yes, all right.

PN100

MR HARRINGTON: If I could just say, if the Commission is ultimately minded to consider the inclusion of a schedule as opposed to a link or some other manner of reflecting the old coverage of the Furnishing Industry National Award within the Manufacturing Award itself we'd be interested in just taking some time to consider the implications of that. I can send ‑ ‑ ‑

PN101

THE VICE PRESIDENT: Just to be clear, what - if it's possible, and you've - obviously there's been some arguments to the contrary, but if it was possible, it seems to me that the best way to simplify the clause would be for it to have a cross-reference to those aspects of the coverage clause in clause 4 which the parties agree were previously covered by the National Furnishing Award. So if the parties can reach a consensus going through the coverage clause and say these are the parts, even if they're parts of parts, which were covered by the National Furnishing Award, the clause could say, for example, that it applies to employers and employees within the coverage of 4.10(hh)(ii) and (ll) for example. And obviously you need some time to have a think about that, but if it's possible I think that would be the easiest course.

PN102

MR HARRINGTON: I understand. Our concerns with that might be derived from the fact that there will be elements and subclauses within that coverage provision which might be derived ultimately from elements of the Furnishing Industry National Award, but also other awards, so one example might be coverage of manufacturers of furniture, so our understanding is that some of that would've been derived from the Furnishing Industry National Award. The Manufacturing Award still covers manufacturers of furniture, but some manufacturers prior to the AMOD proceedings manufactured metal furniture or plastic furniture and our understanding is that some of that was actually covered by the Metals Award and the Rubber and Cable Making Award, in the case of plastic furniture, so if we were to say that the small business redundancy entitlement only applies to those who come under this subclause at 4 in the Manufacturing Award that won't quite work in the sense that there will be elements of that subclause which could potentially be derived from other awards than the Furnishing Industry National Award.

PN103

So our position would be simply that if the Commission is minded to consider the inclusion of a schedule or potentially a reference to elements of the coverage provision in the Manufacturing Award which might be derived from the Furnishing Industry National Award the appropriate course of action would be for perhaps the parties to consider separately the matter with a view to reaching a measure of consensus. From there we might propose a report back at a later date.

PN104

THE VICE PRESIDENT: At the initial instance is it sufficient if I ask the parties if they can identify the agreed areas of coverage in clause 4 which derived from the National Furnishing Award and then identify areas where either they're in dispute or it's impossible to determine with precision where the coverage comes from?

PN105

MR HARRINGTON: We can confirm that.

PN106

THE VICE PRESIDENT: How long might that take reasonably?

PN107

MR MAXWELL: Your Honour, I would just - I mean, I can ask others within our organisation to take on the work, but I'm going on extended leave from 22 November, and won't be back until the end of January.

PN108

MR HARRINGTON: We might also add, particularly with respect to furnishing manufacturers this was quite a contentious issue I understand at the time of the AMOD proceedings. It could potentially be a great deal of work for the parties to determine where there might be consensus.

PN109

THE VICE PRESIDENT: So the answer to my question is how long will it take?

PN110

MR HARRINGTON: We'd propose a few months.

PN111

THE VICE PRESIDENT: A few months? My God.

PN112

MR MAXWELL: Your Honour, perhaps if we can at least identify the areas of agreement and possible areas where we see a problem within two weeks, and ‑ ‑ ‑

PN113

THE VICE PRESIDENT: Yes. I mean, it may not be the absolute final answer, Mr Harrington. I just want to identify the extent of the problem. For example if we're tracking down who was making, I don't know, wooden toys or wooden frames for televisions, I don't think pragmatically that's really an issue, but if it's more substantial than that, well, then - and if it's a problem, well, it's a problem. So I just want to identify what can be identified by agreement and what is a problem area.

PN114

MR HARRINGTON: We would perhaps propose a report back in one month just to identify those areas where there is consensus and where there isn't.

PN115

THE VICE PRESIDENT: So is someone able to report back from the CFMMEU?

PN116

MR MAXWELL: Yes, your Honour.

PN117

THE VICE PRESIDENT: I think, unless any party wishes to add anything, I'll adjourn, make the transcript available to the parties, and I'll list a report back date in approximately a month and the parties will be advised. Is there anything further anyone wishes to add? Thank you for your attendance. We'll now adjourn.

ADJOURNED TO A DATE TO BE FIXED�� [10.30 AM]