TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 28480-1

SENIOR DEPUTY PRESIDENT ACTON

AM2010/125

s.158 - Application to vary or revoke a modern award

Application by Construction, Forestry, Mining and Energy Union
(AM2010/125)
Mobile Crane Hiring Award 2010

(ODN AM2008/15)
[MA000032 Print PR986373]


s.158 - Application to vary or revoke a modern award
Construction, Forestry, Mining and Energy Union
and
No Respondent for AM2010/126
(AM2010/126)

Concrete Products Award 2010

(ODN AM2008/29)
[MA000056 Print PR988700]]


s.158 - Application to vary or revoke a modern award
Construction, Forestry, Mining and Energy Union
and
No Respondent for AM2010/127
(AM2010/127)

Joinery and Building Trades Award 2010

(ODN AM2008/15)
[MA000029 Print PR986370]


Melbourne

9.48AM, MONDAY, 11 OCTOBER 2010

Reserved for Decision

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: We might deal with all these matters together. There's a similarity at least between two of them. Could I have the appearances, please.

PN2

MR A. BORG: Ashleigh Borg, CFMEU.

PN3

MR R. CALVER: Good morning, your Honour. If it please the tribunal, Calver, initial R. With me is MR J. NIKOLIC, also from Master Builders. Mr Nikolic will be dealing with the advocacy in respect of matters AM2010/125 and 127, and I'll be dealing with a response to the CFMEU in respect of AM2010/126, if it please the tribunal.

PN4

THE SENIOR DEPUTY PRESIDENT: Okay. In Sydney?

PN5

MS L. DAVIES: If it please the tribunal, my name is Ms Davies. I appear on behalf of the Australian Industry Group. I appear only in relation to matters AM2010/127 and AM2010/125.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Borg?

PN7

MR BORG: May it please the tribunal, I propose that we deal first with matter 127, simply because it's uncontroversial. No other party has made submissions, although I do believe - the Concrete Products Award.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, 126.

PN9

MR BORG: 126, sorry.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR BORG: So I do propose just to deal with this. It's probably going to be very quickly. It would be my submissions only and perhaps Mr Calver might have something to say in respect of that matter. It's just to vary the award and to include as a default, superannuation fund Cbus in that modern award. The basis, as your Honour has alluded, is the same as all the other matters, so it's just to correct an error that has come from the award modernisation process; an omission, error. It's basically on the basis that had the tribunal applied its mind, it would have been included uncontroversially, as well, at the time of the elaboration of the Concrete Products Award 2010.

PN12

I say this because it's on the basis that previously workers in the precast concrete manufacturing were covered by the pre-modern National Joinery Award, which included Cbus as a default superannuation fund. Those workers are now covered by the Concrete Products Award and so therefore it's appropriate that Cbus be included in the modern award, the Concrete Products Award, as a default superannuation fund.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Borg and others, you can take it I've read all the submissions that have been filed.

PN14

MR BORG: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: I understand the basis for it.

PN16

MR BORG: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Calver, is there anything you want to say about that?

PN18

MR CALVER: Only to distinguish it from the other matters, your Honour. We don't concede that the same concerns apply in respect to this matter as they do to AM125 and 127.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MR CALVER: However, we believe because as co-sponsors of the Cbus and the fact that it's the most commonly used default superannuation scheme in the building and construction industry, and is in fact a scheme under which the workers under this award previously and currently have superannuation payments, this omission is quite categoric and it is certainly a continuity of prior entitlements to this award. So, without prejudice to our other arguments in AM125 and AM127, we agree that the variation should be made underlining, your Honour, that this is a distinct and separate matter and we do not concede in any sense whatsoever that this is similar to the other two matters before you.

PN21

THE SENIOR DEPUTY PRESIDENT: Okay. Well, that concludes the submissions on that matter. Let's go to the others.

PN22

MR BORG: Would you like these to be dealt with separately, your Honour, or would you prefer I do one matter at a time?

PN23

THE SENIOR DEPUTY PRESIDENT: I think give your submissions on both applications and then the others can give their submissions on both applications. Whether you want to deal with one and then the other - - -

PN24

MR BORG: I might just do that, if it please your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: That's fine.

PN26

MR BORG: First I'd like to deal with the Mobile Crane Hiring Award 2010 and the variations we propose in that respect. There are two variations that we propose in respect to the Mobile Crane Hiring Award. The first is the entitlement to dispute resolution procedure training leave and the second is in respect of an ambiguity which arises in clause 13.2 in respect of the all purpose industry allowance. I note in that respect - in respect of clause 13.2 - that the Master Builders are for the most part in agreement in that, so I'd like to deal first, if it pleases your Honour, with the dispute resolution training leave.

PN27

THE SENIOR DEPUTY PRESIDENT: Just in regard to that, AIG says about that that in essence they've suggested some other wordings.

PN28

MR BORG: Yes. Well, the CFMEU is quite happy to have wording which has the same effect as we propose. We're not going to be pedantic in that respect. It's perhaps a disagreement over form but not substance.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. At least one of their suggested wordings will be consistent with some of the awards that I was responsible for in the award modernisation area and that's their proposal at page 13 of their submission which is, in essence, as I understand it, just to alter a percentage to make it 216.6 per cent standard rate.

PN30

MR BORG: Well, the important point in this respect from the perspective of the CFMEU, your Honour, is that it simply be amended on the basis that the 5.7 per cent proportion is effectively applied to the weekly rather than the hourly rate. That's the only issue we really raise in respect of the clause.

PN31

THE SENIOR DEPUTY PRESIDENT: Their proposal is to keep the standard rate as it is, which is an hourly rate, but the employer is required to pay 216.6 per cent of it. The standard rate is an hourly rate in this award?

PN32

MR BORG: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: And to get the industry allowance, you multiply the hourly rate as defined by 216.6 per cent.

PN34

MR BORG: Okay. That works out the same, does it?

PN35

THE SENIOR DEPUTY PRESIDENT: I don't know. I haven't done the calculation. I assume it does. I assume you have no objection to that course so long as it gets to whatever the - - -

PN36

MR BORG: So long as it gets to what we're proposing here.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR BORG: We're not going to be pedantic about the form of it. It's just the substance really.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MR BORG: That the 5.7 per cent proportion is applied to the weekly rather than the hourly rate.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. I mean, the other aspect of their submission is they say it should be prospective.

PN42

MR BORG: Prospective. It's an industry practice in any case, your Honour, so far as I'm aware. It shouldn't make any difference. Any differences are very minimal and indeed I'm quite certain that the Master Builders might have something to say about that, as well.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, the difference is huge, isn't it? I mean, at the moment they're getting paid technically under the award, a dollar, as opposed to $30 or something. 30-odd dollars.

PN44

MR BORG: I'm afraid I don't have the calculations in front of me, but as far as the research has gone on the part of the CFMEU, the changes are minimal if we refer to 1 January 2010.

PN45

THE SENIOR DEPUTY PRESIDENT: I assume you want the correction made to 1 January 2010.

PN46

MR BORG: Yes, effectively.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN48

MR CALVER: Sorry, your Honour. I know that it might seem rude to interpolate at this point, but your preference determinatively is towards the 216 per cent formula. The reason that we ratified the CFMEU position in this regard rather the AIG position, is twofold. The first is that we have many of our members contact us and ask if that is a mistake, because they don't understand that the concept of a standard rate is linked to the weekly rate and that is one of the biggest areas of feedback we're getting from our members; that the concept of a standard rate is not well known in the industry. We're trying to educate them about that as the weekly rate, so we would prefer the formula that the CFMEU has got simply - I know that that might go against the grain somewhat, but we do quite frequently get calls from our members saying, "There must be a typo. Surely you don't want me to pay double the normal rate."

PN49

I think for the sake of simplicity and based on industry experience, your Honour, with other awards - for example, the Joinery Award where there is more than a hundred per cent rate stipulated in respect of the hourly rate converting to the weekly rate - we would caution against Fair Work Australia making awards with that kind of expression in it. That's only because our on-ground experience has been so negative in respect especially to rates of that kind; that's why we would favour the way that the CFMEU has expressed it from a practical everyday quotidian industrial relations point of view. I stood up now so I wasn't contradicting your conclusion in that regard, which it seemed you were reaching, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Calver, one of the difficulties that I perceive with the position you put is that in clause 14.2 of the award, the Mobile Crane Hiring Award - - -

PN51

MR CALVER: Yes, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: - - - there's a reference to the standard rate.

PN53

MR CALVER: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: And that standard rate is the hourly rate.

PN55

MR CALVER: Well, there is a standard weekly rate. The expression is used in that respect, your Honour, also, and that is in clause 3.1. I would imagine that would have to be the way that it's expressed in terms of what the CFMEU propose and I think that that links the proposal to make it much clearer.

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Calver, the standard rate in this award - - -

PN57

MR CALVER: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: - - - is 1/38th of the minimum weekly wage.

PN59

MR CALVER: Yes.

PN60

THE SENIOR DEPUTY PRESIDENT: Right? It's an hourly rate.

PN61

MR CALVER: Yes. I understand that, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: So if we start introducing another concept, which is a standard weekly rate - - -

PN63

MR CALVER: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: - - - given that other parts of the award only refer to the standard rate, I'd suggest we're going to create more confusion.

PN65

MR CALVER: I take your point, your Honour. On my current instructions, however, the expression of an amount in terms that the AIG have put is considered to be confusing by our members. I'm not trying to, as I say, be impertinent to you, but we think that - - -

PN66

THE SENIOR DEPUTY PRESIDENT: But how can it be confusing when the concept is there in 14.2(a) and (b)? They've got used to it, presumably, by now.

PN67

MR CALVER: Well, I'm merely supporting the CFMEU's submissions in that regard, your Honour. I believe that they are of the same mind. If you think, your Honour, that it would be confusing, then I'm happy to be guided by the bench, but I'm giving you practical feedback from the ground, your Honour, that our members do ring and say such matters as, "Surely that's a typographical error. Surely it can't be that much," because of the misalignment in their minds - not in Fair Work Australia's mind obviously - of the two concepts. I say that respectfully and - - -

PN68

THE SENIOR DEPUTY PRESIDENT: That can only be because they haven't read the definition of "standard rate" in the award.

PN69

MR CALVER: Or misunderstood it, yes.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, okay. I understand what you're saying. It's just that it may be too late. We'd have to alter other clauses, I'd suggest.

PN71

MR CALVER: I hear you, with respect, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to say anything on this at this particular point, Ms Davies? Just on this issue of industry allowance.

PN73

MS DAVIES: Yes, your Honour. I'm happy to make submissions at this point. We would maintain the position that we consider the proposed wording put forward by the CFMEU is ambiguous, because the proposed amendment by inserting in brackets, "ie, 5.7 per cent of the standard hourly rate multiplied by 38" - by saying "ie", it suggests that what has been included in the brackets is supposed to be just a clarification or saying the same thing as 5.7 per cent of the standard rate per week. They are in fact two different things.

PN74

Our position would be that rather than, you know, trying to clarify an error in the award by including a statement like that, it would be preferable to adopt one of the three options set out in our submission that would have the effect of removing the erroneous wording altogether and inserting in its place wording which we would consider reflects what was the intention of the full bench in making the award. I take the point raised with respect to the introduction of a concept of a standard weekly rate in addition to a standard rate and accept that perhaps that may create some ambiguity, but certainly either of the other two options, we would submit, would be the preferable approach.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes. You're talking about what's in your paragraph 38?

PN76

MS DAVIES: Yes, your Honour. The approach at 38(a) would be that to take out the reference to 5.7 per cent of the standard rate and instead express it as 5.7 per cent times, in brackets, the standard rate multiplied by 38, close brackets, which would remove that ambiguity. The other option that your Honour referred to at the outset is the option outlined at paragraph 38(c), which would be to replace the percentage of 5.7 per cent with 216.6 per cent which was arrived at by multiplying 5.7 by 38, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Your other issue is retrospectivity, isn't it?

PN78

MS DAVIES: It is, your Honour. On that point, we would submit that aside from the fact that the CFMEU has not put forward in its submissions anything to demonstrate that there should be exceptional circumstances, we would submit the difference between the amount as currently expressed, taken literally, which works out to be around $1, is significantly different in monetary terms to the amount of the industry allowance once it's correctly expressed, which is around $37, I believe.

PN79

That in itself could create a substantial back pay issue for employers which we say would be magnified in this industry, in particular because our understanding of the industry is that many of the larger employers typically operate under registered agreements and may not be impacted. It may be smaller operators without registered agreements who rely primarily on the award who may suffer the greatest impact. Small businesses naturally have less capacity to absorb any back pay obligations.

PN80

In addition - and I note the submissions of Master Builders. However, we would say that on the face of the award it would not have been apparent that this was a mistake. Although the amount of the industry allowance was quite small, it wasn't a case, for example, where there was, you know, two ways that a clause could be interpreted. It simply said 5.7 per cent of the standard rate, which was a defined term, and in those circumstances it would have been difficult for employers to be on notice if they hadn't, for example, made inquiries about possible alternative interpretations or errors, that they could be up for back pay obligations.

PN81

THE SENIOR DEPUTY PRESIDENT: And the underpinning awards to this one, there's a federal award and some state awards, some NAPSAs.

PN82

MS DAVIES: Yes, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: None of them would have prescribed a dollar, would they?

PN84

MS DAVIES: My understanding from my recollection, your Honour, was that the rates in the previous award were taken to include the industry allowance; that being the rates in the former Mobile Crane Hiring Award 2002.

PN85

THE SENIOR DEPUTY PRESIDENT: Right. Do you have any evidence of anyone who has actually been paying a dollar?

PN86

MS DAVIES: I do not, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: Okay. Is that all you want to say about this?

PN88

MS DAVIES: Thank you, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Anything on this, Mr Borg?

PN90

MR BORG: Yes. As I said, your Honour, we're not going to press for pedantitry [sic] - if that's the word. We just would simply like a variation of the award to make it clearer that the 5.7 per cent proportion is effectively applied to the weekly rate. So far as I understand, if your Honour is minded to use any wording of the Australian Industry Group, assuming my mathematical analysis here is correct, the one in subclause (a) of clause 38 - 38(a), that is - 5.7 per cent times - the standard rate times 38.

PN91

THE SENIOR DEPUTY PRESIDENT: I'm suggesting 38(c).

PN92

MR BORG: That effectively comes to the same, doesn't it?

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR BORG: If your Honour is minded to use that clause instead and if the Master Builders are happy with that - - -

PN95

MR CALVER: Thank you for asking. Yes, that would be better.

PN96

THE SENIOR DEPUTY PRESIDENT: Okay, yes. Next issue?

PN97

MR BORG: The next issue, your Honour - - -

PN98

THE SENIOR DEPUTY PRESIDENT: Sorry - and I assume you say the order in respect of that should be effective 1 January 2010.

PN99

MR BORG: Yes.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Next issue?

PN101

MR BORG: I have a draft determination in that respect, but I can hand all those up at the end.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes.

PN103

MR BORG: As regards the dispute resolution training leave clause, of course there is opposition in this respect from both the AIG and the Master Builders Association. They give different reasons themselves. That's fine, but I propose to deal with all the issues in any case. Some of the issues raised in regard to the Mobile Crane Hiring Award are a little bit different to those that are raised in respect of the variation for the Joinery and Building Trades Award and I'll deal with those when that matter is raised, as well.

PN104

First and foremost, I do understand that your Honour has seen our submissions and is aware of the variation that we are seeking. Basically we do not oppose the dispute resolution procedure clause which was applied generally to modern awards, which is included also in the Building and Construction On-site Award although with an addition to provide for dispute resolution training leave. I'd just like to distinguish that from the outset. There is the dispute resolution procedure model clause. What we are proposing is to include a dispute resolution training leave subclause therein.

PN105

The reason why we'd like this variation to be made, may it please your Honour, is that a similar subclause or clause was contained in the Mobile Crane Hiring Award 2002 at subclause (8), as is outlined in my submissions. I refer your Honour to a decision in respect of the Building and Construction On-site Award in which it was held by the full bench that they ought to retain the dispute resolution training leave subclause, on application to remove it. The full bench said that the term that is in the modern Construction Award was included on the basis that it reflected the terms of the NBCIA, the predominant national pre-modern award, and they were not persuaded they should remove the provision or limit its application in that decision.

PN106

The CFMEU submit that along the same lines of reasoning, the non-inclusion of the dispute resolution training leave subclause constitutes an error simply because the predominant pre-modern national award contained a subclause to the effect that allowed dispute resolution training leave and in a similar way that it was dealt with in the Construction modern award, it ought to have been included also in the Mobile Crane Hiring Award - the modern one, that is. Therefore, it requires correction just as a matter of consistency.

PN107

I note in the NBA's submissions they do say there is authority to suggest that an error may be defined in their words differently. It has been held that where provisions can be seen to reflected the weight of previous award regulation yet omitted from a modern award in the absence of any substantive information or submissions about them during the consultation process, then the modern award may have been made in error. I refer to paragraph 3.13 of - I believe it's Mr Calver's submission, or Mr Nikolic's of the Master Builders Association. In that respect they refer to the Construction General On-site Award 2010.

PN108

Basically it comes down to reflecting the rate of previous award regulation and being in the absence of substantive information or submissions during the consultation process - and the CFMEU submits that both of these conditions have been met in respect of this application.

PN109

THE SENIOR DEPUTY PRESIDENT: Just in regard to the weight of the underlying and underpinning awards and NAPSAs, you've referred to the federal award. What was the position in respect of the NAPSAs?

PN110

MR BORG: The underpinning award that we refer to here is the Mobile Crane Hiring Award of 2002.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes.

PN112

MR BORG: Which contained the similar provision which is reflected in the variation which we seek.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, but were there underpinning NAPSAs?

PN114

MR BORG: Not to my knowledge.

PN115

THE SENIOR DEPUTY PRESIDENT: Right, okay.

PN116

MR BORG: Further, in addition to this, in addition to the modern award having to reflect the previous pre-modern award, as regards the absence of any substantive information or submission about them, that sort of - in the tests that I've outlined, that was contained in the Master Builders Association's submissions. Of course I'd now refer to the AIG's submissions in which they say:

PN117

During stage 2 of the award modernisation process, the CFMEU did not put forward any information in support of trade union training leave being a prevailing industry standard.

PN118

What I'm saying is the amalgam of the MBA's submissions and the AIG's submissions, point to this variation which we seek. Indeed, it was a prevailing industry standard under the pre-modern Mobile Crane Hiring Award of 2002 and indeed as submitted - the AIG's themselves, no submissions were made and it is on that basis and in the authorities cited by the Master Builders Association themselves, points to an error having been committed in the omission of this dispute resolution training leave clause. That error having been committed, I'm applying on behalf of the Construction, Forestry, Mining and Energy Union to vary the modern award. That is the Mobile Crane Hiring Award of 2010.

PN119

THE SENIOR DEPUTY PRESIDENT: Is the difficulty with the error approach the specific reference in the decision?

PN120

MR BORG: How does your Honour - - -

PN121

THE SENIOR DEPUTY PRESIDENT: The bench considered it - - -

PN122

MR BORG: Sorry? What was that?

PN123

THE SENIOR DEPUTY PRESIDENT: If you look at paragraph 17 of the AIG's submission.

PN124

MR BORG: Yes, right. That goes back to what I said from the outset, your Honour, distinguishing the dispute resolution procedure clause from any subclause which refers to dispute resolution training leave. They are distinguishable matters, your Honour. We don't take issue with the fact that the dispute resolution procedure clause which was included in the Mobile Crane Hiring Award was the standard one to be applied at the time of the modernisation. We simply take issue with the fact that no dispute resolution training leave - procedure training leave, sorry. It's a big of a mouthful - subclause was included therein or therewith or in the award at all. It's just a matter of headings, subheadings.

PN125

They refer at paragraph 155 in the decision of the commission - and that only refers to the dispute resolution procedure. It does not address the dispute resolution procedure training leave. Unless your Honour has any questions, that's the conclusion of my submissions in respect of this dispute resolution training leave provision.

PN126

THE SENIOR DEPUTY PRESIDENT: So the draft you put up for the commission's determination of the making of the Mobile Crane Hiring Award, did that include training leave?

PN127

MR BORG: Did what, sorry? I'm having trouble hearing you.

PN128

THE SENIOR DEPUTY PRESIDENT: As I understand it, there were competing drafts for the making of the - - -

PN129

MR BORG: Yes. I'm afraid I don't know off the top of my head, your Honour, but just on the basis of the information we have at hand, it does point to the fact that there ought to be a dispute resolution procedure training leave provision.

PN130

THE SENIOR DEPUTY PRESIDENT: Okay. So your position is if it wasn't in your draft, it should have been?

PN131

MR BORG: No, that's not quite my - simply on the basis that as was done in the Building and Construction General On-site Award 2010, the dispute resolution procedure training leave was included in that on the basis that the prevailing industry standard - that it was that standard. We submit that along similar lines it was the prevailing industry standard for Mobile Crane's and therefore any omission of that subclause constitutes an error and ought to be corrected.

PN132

THE SENIOR DEPUTY PRESIDENT: All right. What do you want to say about the other award before we go any further?

PN133

MR BORG: Well, I do have further submissions to make in respect of that, your Honour. They're a little bit different, just on the basis of my learned friend's submissions.

PN134

THE SENIOR DEPUTY PRESIDENT: Let's do them all-up.

PN135

MR BORG: Okay. I'll be happy to do that, if I could just have a moment. Yes, as regards the Joinery and Building Trades Award 2010, your Honour, of course we only seek one variation. That is in respect of this dispute resolution procedure training leave subclause or provision, however it's formulated. Again we do not take issue with the inclusion of the standard dispute resolution procedure leave provision. That is absolutely fine. It's just the omission of the dispute resolution procedure training leave provision.

PN136

Similarly, as regards the Mobile Crane Hiring Award, we submit that it was a prevailing industry standard for the National Joinery and Building Trades Products Award 2002, that being the underpinning award for the modern award, the National Joinery and Building Trades Award 2010, simply on the basis that the training leave provision was included in the 2002 award. Along the lines of the Building and Construction General On-site Award 2010, again the full bench did find it appropriate to retain that clause on the basis of it being a prevailing industry standard and omission constitutes an error.

PN137

I note that in the submissions the AIG refer to a number of pre-modern awards and NAPSAs. Namely, the Glass Merchants and Glazing Award 1997 of Victoria; the Glass Workers (State) Award New South Wales NAPSA; the Glass Makers (State) Award, et cetera. Glass Industry; Glass merchants; Glass Workers and Glazing (South Australia); Glass Industry - Merchants, Glazing Contractors - Tasmania Award 1997. It appears from their submissions that simply because only one of these pre-modern awards and/or NAPSAs contained a dispute resolution training leave provision, they suggest that the dispute resolution training leave provision was somehow not a prevailing industry standard when indeed it was included in the national 2002 award in any case which had greater coverage and was indeed more prevalent than any of the NAPSAs.

PN138

It is submitted that whilst we welcome the fact that at least one of the pre-modern awards or NAPSAs cited by the AIG and chosen to be mentioned by them that includes such a provision - that list is not where the tribunal should be looking to determine the prevalence of an industry award. Rather, the tribunal should be looking towards the 2002 pre-modern award which contained the provision. Indeed, in the award modernisation process it was to the National Joinery and Building Trades Products Award 2002 to which the tribunal turned its eyes to establish prevalent provisions. This award had far greater coverage in the industry than any other and should be the relevant reference in determining prevalence such that no worker could be worse off as a result of the award modernisation process.

PN139

I have made mention, your Honour, of the Construction and Building On-site General Award. It's not because it happens to be that some mobile cranes are used in the construction industry. It's just a matter of consistency of process before Fair Work Australia. Indeed, dispute resolution training leave provisions have been included in non construction-type awards, including manufacturing awards and so on. The AIG, with respect, a little bit bizarrely go on to point out that the dispute resolution training leave and trade union training leave were non-allowable matters under the Work Choices regime and point to that fact as some kind of indicator that indeed the dispute resolution training leave was not a prevalent industry standard.

PN140

I put it to the tribunal, and as has been established elsewhere, it's not by reference to Work Choices that awards have been modernised or varied since the change in regime. Indeed, in AM2009/162 the full bench found it appropriate to retain the provision because it was contained in the pre-modern National Building and Construction Industry Award on the basis of its prevalence irrespective of what were once allowable or non-allowable matters under the now discredited and repealed Work Choices experiment.

PN141

In doing so, the full bench referred to the decision of the full bench again in the Award Modernisation process in 2009. I can provide the reference. It's 2009 AIRC FB345. I do believe my learned friends have copies of that. If your Honour would like a copy, I can submit that to the bench, but in any case I'll go on just as a matter of expediency to cite from paragraph 73 of that decision. It says:

PN142

We have added a dispute resolution procedure training leave provision, on the basis that it is a prevailing industry standard.

PN143

In turn, your Honour, the full bench in that matter referred to a previous full bench decision in 2008, AIRCFB 1000. That's the reference.

PN144

MR CALVER: Sorry to interrupt. Do you want to hand up the copies that we have available to her Honour so that she can read when you're reading, Mr Borg?

PN145

MR BORG: Yes. That's fine, yes. I did have copies for your Honour. I was proposing to just hand them up at the end, if that please your Honour. In any case, I'm turning now to a new decision. Well, new in respect of my submissions. It's 2008 AIRCFB 1000, in particular at paragraph 46 of that matter, in which it was held - and I'll read directly from here. It's contained in my submissions, so you'll have to excuse me.

PN146

The Minister and a number of parties made submissions concerning dispute resolution training leave. This type of leave was found to be incidental to an allowable award matter and necessary for its effective operation pursuant to section 89A of the Workplace Relations Act, as it stood at that time, by a full bench of the commission in 1998. Dispute resolution training leave, although quite common in pre-reform awards prior to the Work Choices amendments, has never been a test case provision and we have decided to maintain dispute resolution training leave where it is a prevailing industry standard.

PN147

The conclusion of that, your Honour, is that irrespective of Work Choices, the full bench has considered the dispute resolution training leave provisions to be, as they are, allowable matters under the new regime and they don't look to Work Choices to determine whether or not they were prevailing industry standards but rather whether they were contained in pre-modern awards, as was the case in both of these matters as regards the Mobile Crane Hiring Award and the Joinery and Building Trades Award 2010. On this basis, your Honour, sections 5151KL and 5251 of the Workplace Relations Act 1996 are neither here nor there.

PN148

What is, however, relevant, is that a dispute resolution training leave provision was contained in the National Joinery and Building Trades Products Award 2002 and as a matter of consistency of approach the full bench should have included the dispute resolution procedure training leave provision in the modern Joinery and Building Trades Award 2010. Finally, as I have alluded previously already, I do note that on the same basis similar provisions were retained in the Building and Construction General On-site Award 2010 as I indeed mentioned, and the Electrical Power Industry Award 2010 as well as the Manufacturing and Associated Industries and Occupations Award 2010, to name a few. If your Honour has any questions, I'd be more than happy to answer those, but that concludes my submissions.

PN149

THE SENIOR DEPUTY PRESIDENT: There is underlying NAPSAs in this industry. There's one in New South Wales, for example, which is the Joinery NAPSA. That has a reference to trade union training leave. Are you relying on that or - - -

PN150

MR BORG: I'm relying on the National Joinery and Building Trades Products Award 2002, and clause 11.1.15:

PN151

Each duly appointed union representative shall be granted up to five days' paid leave per year to undertake training that will assist them in their settlement of disputes roles.

PN152

THE SENIOR DEPUTY PRESIDENT: That's different to trade union training leave.

PN153

MR BORG: Yes, your Honour. We only propose that it's dispute resolution training leave. Previously they used to be called trade union leave of some sort, but they were effectively the same. Under the Workplace Relations Act they were called - - -

PN154

THE SENIOR DEPUTY PRESIDENT: Were they?

PN155

MR BORG: Well, on the basis indeed of my instructions and of the past history of the clause, yes. If one is to go back to the history of the award and its underlying and underpinning NAPSAs where there is reference to trade union leave or dispute resolution training leave, they are effectively to be used interchangeably. In any event, we've only looking for the narrower clause - that is for the dispute resolution training leave - not a general trade union leave in any case, but effectively they were one and the same. It's just that because of the statutory history concerning these provisions, certain names needed to be changed. As I have said, we only do seek to change it to include a provision to allow for dispute resolution training leave, not trade union general leave.

PN156

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. Mr Nikolic?

PN157

MR NIKOLIC: May it please the tribunal, I will address the CFMEU's submissions in AM2010/125 and 127 largely together. The CFMEU's application in respect of both 125 and 127 appear to presume that simply because some element of pre-modern regulation existed, that it should have continued into the modern award and, if it didn't, then it's an error. We say, as we set out in our written submissions, this simply can't be the case. It denies what happened under the awards modernisation process, as you would well know, whereas the tribunal itself has held - and I quote:

PN158

Most modern awards will contain terms and conditions which involve changes in the minimum terms and conditions for many employees.

PN159

That statement came from the award modernisation full bench of which I understand that your Honour was a member, in the decision that published the Mobile Crane Hiring Award and the Joinery Awards, and that's AIRCFB 345, which I understand you already have a copy of. That citation is at paragraph 19. We rely on our written submissions largely that set out the reasons why it was inevitable that there were going to be changes in minimum terms and conditions. That was a product not only of the fact that 1500 awards were reduced to a mere 122, but it was also an outcome of the balancing process that had been undertaken under the award modernisation request which is now largely replicated under the modern award's objective under the Fair Work Act.

PN160

While it is true that paid dispute resolution leave was included in the Mobile Crane Hiring Award 2002 and was included in the National Joinery and Building Trades Products Award 2002, we say that fact alone cannot establish that there has been an error as is contemplated under section 160 of the Fair Work Act. As set out in our submissions, we say that section 160 should be narrowly construed consistently with the machinery under Part 2-3, division 5 of the Fair Work Act which I'll discuss further on.

PN161

The CFMEU has already relied today and in their written submissions on the fact that paid dispute resolution leave existed under the Building and Construction General On-site Award, and that decision was AIRCFB 989. Well, with respect, your Honour, we can't really see how that decision assists. The CFMEU is suggesting today that because paid dispute resolution leave existed under that award, that it should have been included in the modern Mobile Crane Hiring and the modern Joinery Awards, and the fact that that hasn't been is an error which has enlivened your jurisdiction to amend those two awards accordingly. Well, we say if the Mobile Crane Hiring Award and the Joinery Award were intended to mirror the terms of the On-site Award, there would have only been one award. Clearly that's not the case.

PN162

Although my friend has referred to one, and indeed the federal award, that was applicable to the mobile crane and the joinery sectors, he has not referred to any of the NAPSAs as we do in our submissions. If I may take you to them, your Honour, if you have them in front of you. Would you like me to hand up another copy?

PN163

THE SENIOR DEPUTY PRESIDENT: This is the - - -

PN164

MR NIKOLIC: These are the Master Builders' submissions in AM2010 - - -

PN165

THE SENIOR DEPUTY PRESIDENT: I've got those.

PN166

MR NIKOLIC: You've got those. Okay, great. As we set out in paragraph 3.18 of both of the submissions, we identify the awards that we understand were taken into account by the awards modernisation full bench in drafting the two modern Joinery and Mobile Crane Hiring Awards. With respect to the Joinery Award, it appears, as we set out at 3.18 and 3.19, that of the 23 modern awards that were considered by Fair Work Australia, only one of them provided for paid dispute resolution leave. Only one of them. With respect to the Mobile Crane Hiring Award, as we set out at paragraph 3.18, of the eight pre-modern instruments that were considered, only two of them provided for dispute resolution leave in the terms sought by the CFMEU. Regardless of what definition of an error your Honour will adopt, we say that it was not a prevailing industry standard.

PN167

We would seek to distinguish the union leave quite strongly from paid dispute resolution leave. The CFMEU does not appear to be relying on the existence of union leave in any event, but we say that it is quite different. They have admitted today that it is nevertheless a narrower clause that they are seeking and we submit that that is the point. Paid dispute resolution leave is manifestly different to trade union leave because of the ambit of the kind of things that can be studied. We've set out in our submissions the range of matters that could be paid for by an employer when an employee was on trade union leave. They are certainly not all directed at dispute resolution leave. In any event, even the paid union leave did not reflect the balance of the majority of awards. They were always less than half. In both the mobile crane hiring sector and the joinery sector, they reflected less than half of the pre-modern instruments considered.

PN168

Your Honour, quite simply we say that, yes, paid dispute resolution leave did exist in major pre-modern instruments, but that alone cannot establish that it is an error; that the absence of such clauses are an error under the modern awards. It is also true that paid dispute resolution leave existed in other pre-modern instruments and exists in the Building and Construction General On-site Award, but we say that is also of limited assistance. On that point, I would like to refer your Honour to an authority of the tribunal, 2010 FWA 2894, which I can hand up if that would be of assistance. At paragraph 46, his Honour Watson SDP - - -

PN169

THE SENIOR DEPUTY PRESIDENT: Hang on. What have you just handed up?

PN170

MR NIKOLIC: That was 248, excuse me.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes.

PN172

MR NIKOLIC: I've handed up the wrong authority. Sorry. At paragraph 46 of that decision, your Honour, it is stated by Watson SDP, "Reliance on provisions in other modern awards determined in the particular circumstances of the relevant industry, are of limited assistance," and that's our submission today. The General Building and Construction On-site Award had unique and particular circumstances that fed into the creation of the modern award. It was chosen to create a Joinery Award and a Mobile Crane Hiring Award which are distinct from that award because of the fact that, we argue, among other things paid dispute resolution leave was not prevalent in that sector.

PN173

In any event, as we've set out in our written submissions and as the CFMEU is relying today, they're relying on section 160 of the Fair Work Act and we are concerned to some extent that reliance on that section or a broad interpretation of that section, has the potential to undermine the integrity of the awards modernisation variation process which is set out under the Fair Work Act. As your Honour would well know, the balancing process that was undertaken by the awards modernisation full bench is preserved by the fact that - as set out in the Local Government Industry Award 2010 (2010) FWAFB 4157, which I provide to you, your Honour. From paragraphs 3 to 6 of that decision, we submit there is a useful summary of the machinery at Part 2 of the Fair Work Act. Essentially the nub of that juris prudence - if I may take you to paragraph 5. It says:

PN174

There is a long history of industrial tribunals in Australia declining to re-open awards during their currency unless there were matters not known at the time the award was made which would lead to an injustice if the award was not varied, or circumstances have changed so dramatically so as to warrant a revisiting of the conclusions reached.

PN175

It says that those discretionary considerations were applied in the resolution of industrial disputes and should be seen as having been generally captured under section 157. It then refers to section 160 of the Fair Work Act which "empowers Fair Work Australia to make a determination varying a modern award to remove an ambiguity," et cetera, "or to correct an error." Your Honour, we submit this is a good summary of the operation of Part 2-3 of the Fair Work Act. In effect it says that the tribunal may amend an award or vary an award if it was somehow misinformed at the time of making the award or there has been a significant change in circumstances.

PN176

It then refers to section 160, Errors, which as we set out in our written submissions we think should be narrowly construed consistently with the caution inherent in that juris prudence which is understood to carry on under 157. In any event, it's clear that section 160 is subject to the modern awards objective and we say that the modern awards objective is a significant hurdle. As set out at 2010 Fair Work Australia 5068, your Honour - - -

PN177

THE SENIOR DEPUTY PRESIDENT: Yes.

PN178

MR NIKOLIC: Which I provide to you. At paragraph 16, Vice President Watson indicates that the modern awards objective which under section 134(1) of the Fair Work Act and which under section 134(2)(b) of the Fair Work Act plainly applies of the operation of variations under Part 2-3 generally, including applications under section 160 - Vice President Watson states that:

PN179

The modern awards objective is a significant hurdle such that variations to awards outside the scheduled review will be the exception.

PN180

Vice President Watson also states in another decision, which I can provide to your Honour - at paragraph 13 of that decision, Vice President Watson says:

PN181

An application to vary a modern award which has to be compliant with the modern awards objective, must establish much more than that the variation is desirable. Under the act they need to establish that the variation is necessary to achieve the modern awards objective. In other words, the applicants must establish that the modern awards objective would not be achieved unless the variation was made.

PN182

We say that the juris prudence with respect to Part 2-3 of the Fair Work Act is that the tribunal may vary an award if it was somehow mis-informed at the time of making the award, there has been a significant change in circumstances or there has been an error of some kind. We say, as I will shortly discuss, the tribunal cannot be said to have been mis-informed at the time of making either the modern Joinery or the modern Crane Hiring Awards. There has certainly been no significant change in circumstances and it has not been identified by the CFMEU today. In that case we say there cannot be any error, ambiguity or uncertainty as contemplated under section 160 of the Fair Work Act.

PN183

My friend has referred to an authority that we identified in our submissions; 2010 Fair Work Australia 4679. I'm not sure if that was provided to you before, but it can be provided to you now if you wish, your Honour, in which Watson SDP reflected the juris prudence with regard to the idea that if the tribunal was somehow mis-informed at the time of making an award, then its jurisdiction is enlivened to vary it at a later date.

PN184

While we would say that is not captured by section 160 and while we sought to distinguish Watson SDP's ratio in that case in our written submissions, we say that in any event that definition of an error cannot be met in the two applications brought by the CFMEU. That is because during the drafting of the Mobile Crane Hiring Award 2010 and the Joinery and Building Trades Award 2010, it was clear that the awards modernisation full bench was clearly aware of the terms of both the Mobile Crane Hiring Award 2002 and the National Joinery and Building Trades Products Award 2002 which the CFMEU rely on.

PN185

The CFMEU has not provided any new information that was not already before the full bench when the awards were drafted. At 2009 AIRCFB 345, which your Honour already has, at paragraphs 114 and 113 the full bench refers directly to both the terms of the Mobile Crane Hiring Award 2002 and to the terms of the national Joinery and Building Trades Products Award 2002. Again it's clear that the full bench was aware of the terms of those pre-modern awards, including the fact that they provided for paid dispute resolution leave.

PN186

With respect to the Mobile Crane Hiring Award, the full bench - as has already been discussed by my friends today - at paragraph 115 of 2009 AIRCFB 345 said that it had utilised the dispute resolution clause which appears in modern awards generally in place of the clause from the Mobile Crane Hiring Award 2002. Your Honour, my friend today has sought to characterise that statement as somehow implying that they had chosen the general dispute resolution clause which was drafted under the awards modernisation process; but that analysis of that statement fails to take into account that they've specifically excluded the dispute resolution clause that was in place under the pre-modern instrument that they rely on.

PN187

There's only really one main difference between the dispute resolution clause under the 2002 award and the 2010 award. That is the absence of paid dispute resolution leave which the Master Builders submits should not be in the modern award and which we submit the full bench agreed with at the time in leaving it out of it. We cannot see any reason for the tribunal today to revisit what we say is an explicit decision to leave out paid dispute resolution leave under the Mobile Crane Award. There has been no change in circumstances, we say, and there cannot possibly be an error as contemplated under section 160 of the Fair Work Act as advocated by either the Master Builders or the CFMEU.

PN188

Your Honour, in the submissions of my friend a point was raised I believe - no, that was with the - well, moving on to the Joinery Award. Yes, it should be noted also that my friend was unaware whether or not the CFMEU had included a paid dispute resolution clause in their draft award during the awards modernisation process. As identified at footnote 51 of our submissions in AM2010/125 with respect to the Mobile Crane Hiring Award application, we refer to the draft award that was submitted by the CFMEU on 20 January 2009 which at clause 9.9, we understand, included paid dispute resolution leave.

PN189

So, not only was the full bench aware of the terms of the major pre-modern federal instrument that's relied on by the CFMEU, the CFMEU also advocated for the inclusion of paid dispute resolution leave. Not only that, the full bench then went on to explicitly exclude the clause under the pre-modern instrument that the CFMEU is relying on today. We cannot see any reason to revisit that decision, your Honour.

PN190

Moving on to the Joinery Award and the drafting that was undertaken with respect to that award, even under the definition of an error which is advocated by my friend today - which is that where pre-modern regulation reflected the balance present prior to the making of the modern award and no substantive submissions were made about it, then there may have been an error that can be rectified. Well, we say with respect to the modern Joinery Award, substantive submissions were made about it and they can be found in the CFMEU's submissions of 13 February 2009, which I can provide to your Honour if that would assist.

PN191

At paragraphs 4.5 and 5.10 of those submissions, the CFMEU states that, "Fair Work Australia has used a standard clause for clause 9 which does not include dispute resolution training leave," so the CFMEU has made direct submissions on that point and the point has been raised with Fair Work Australia. They were aware of the terms of the pre-modern federal instrument that is relied upon today. We can't see that any information was not available to the full bench at the time of the making of the award such that they could be said to have been mis-informed, thereby enlivening a discretion to correct the modern award under either section 157 or section 160.

PN192

Your Honour, I believe I addressed the CFMEU's submissions today in their written submissions, but something that has not really been spoken about yet is the modern award's objective which we say broadly reflects the awards modernisation request which informed the making of the awards. If your Honour would like authority for that proposition, we can provide it. Would that please the tribunal?

PN193

THE SENIOR DEPUTY PRESIDENT: Yes.

PN194

MR NIKOLIC: I believe it is around paragraph 15 of that decision - no. Excuse me. I believe it was the authority I just handed up before; 2894. Do you have that?

PN195

THE SENIOR DEPUTY PRESIDENT: Yes.

PN196

MR NIKOLIC: Thank you, your Honour. At paragraph 29 of that decision it is stated by Watson SDP that:

PN197

Where an application is made so soon after the making of a 2010 modern award, given that the award was made in accordance with an award modernisation request the objects of which are drawn from section 576A of the Workplace Relations Act 1996 - reflect those elements of the modern awards objective now relied upon by the applicants in that case.

PN198

There you have authority for the fact that the modern awards objective largely reflects the terms and conditions and the objectives of the awards modernisation request. His Honour in that case goes on to say that because those objectives have been applied in the drafting of the modern award, one should have caution in varying it lest one disturb the balance that is intended to - in modern awards. Then there is a reiteration of the 26 June 2009 comments of the full bench where they say that:

PN199

Applications to vary the substantive terms of modern awards will be considered on their merits, but will be unlikely when they are made so soon after a comprehensive review. Normally a significant change in circumstances would be required.

PN200

That's something that we've already identified today and we say reflects the general caution inherent in Part 2-3 of the Fair Work Act which implies a narrow construction of section 160. As I say, Master Builders submits and as is plain from the terms of the Fair Work Act, the awards modernisation objective applies to applications under section 160 and thereby preserves the balance which is intended to be reflected in modern awards. Would your Honour like met to address the modern awards objective with respect to these applications?

PN201

THE SENIOR DEPUTY PRESIDENT: Okay.

PN202

MR NIKOLIC: Apart from the fact that we say pay dispute resolution leave is not prevalent in either the mobile crane hiring or the joinery sectors, we submit that the exclusion of such leave under the modern awards was consistent with the modern awards objective. As we set out in our written submissions, we say that it's simple, flexible, easy to apply - - -

PN203

THE SENIOR DEPUTY PRESIDENT: You don't need to add anything that's not in your written submissions.

PN204

MR NIKOLIC: Not really. Just some rhetorical - - -

PN205

THE SENIOR DEPUTY PRESIDENT: I mean, you don't need to add anything that's in your written submission.

PN206

MR NIKOLIC: Not exactly. If I may just make some brief comments on - well, what I do have is some evidence of the costs of paid dispute resolution leave, which I can hand up. Would you like that, your Honour? Would that be of assistance to the tribunal? There is evidence of the costs of paid dispute resolution leave and I suppose really the cost factors in employers paying for such leave goes to the nub of why this kind of leave is in excess of what is required and would alter the balance of the objectives that have already been taken into account in the drafting of the awards. What I've handed up is information from the web sites of the Accord Group, the Australian Commercial Disputes Centre, mediation workshops run by the Trillium Group and - - -

PN207

THE SENIOR DEPUTY PRESIDENT: This is just evidence of the statistics - - -

PN208

MR NIKOLIC: Just evidence of the costs in the award - - -

PN209

THE SENIOR DEPUTY PRESIDENT: - - - that are in your submission, isn't it?

PN210

MR NIKOLIC: Pardon?

PN211

THE SENIOR DEPUTY PRESIDENT: They're just evidence of the dollar statistics that are in your submission?

PN212

MR NIKOLIC: That's right. I would make the observation that there are various kinds of these that are already provided for under the Fair Work Act. There is parental leave, annual leave, personal and carers' leave, community service leave, long service leave, preservation of public holidays leave, and of course the Master Builders would not wish to disturb those minimum provisions; but we say that paid dispute resolution leave goes beyond what is required for a fair safety net in this country.

PN213

The drafting of the CFMEU's proposed clause - well, no, it actually does not state that the course would have to be paid for by the employer, yet that is certainly an interpretation that is open on its terms. As we've said in our written submissions, there are all sorts of ambiguities about how many in the workforce might take it, how many times it can be taken and the length. Something we haven't developed in the written submissions is who gets appointed as an employee representative? It says, "Duly appointed," in the draft clause, but there is very little information about what that might mean. It would inevitably be an inconsistency of this form of leave applying within the workforce in any event.

PN214

Your Honour, on top of what we say is the CFMEU's misplaced reliance on section 160 error , we say that the application must be necessary to achieve the modern award's objective and that it is plainly not necessary to include paid dispute resolution leave in either of the modern awards to achieve that. We say that this application, like many others, raises prominent political questions about the limits of reasonable regulation and the cost evidence that I've provided for you today outlines how expensive that can be.

PN215

We say that the needs of the low paid, the need to promote social inclusion, the other social welfare objectives outlined at section 134 of the Fair Work Act, have already been taken into account and are inherent in the modern awards that are sought to be varied today. What we say is that there needs to be a sober analysis of the other social benefits that accrue from reducing the regulatory burden, employment costs, simplicity, job creation and performance and competitiveness of the national economy which are all objectives outlined under section 134(1).

PN216

We say that a line must eventually be drawn beyond what employers can reasonably afford if they are to continue to be able to create jobs and increase productivity. We say that that line must be drawn so as to exclude, as the award modernisation full bench has already done, paid dispute resolution leave on the Mobile Crane Hiring and Joinery Awards. Those are our submissions, your Honour.

PN217

THE SENIOR DEPUTY PRESIDENT: Ms Davies?

PN218

MS DAVIES: Thank you, your Honour. AI Group opposes each of the CFMEU's applications in relation to the Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010. As I've already made submissions regarding the industry allowance issue in the Mobile Crane Hiring Award application, I just propose to address the remaining issues regarding the identical wording proposed to be inserted to each of the awards in respect of dispute resolution procedure training leave.

PN219

The principal reason that AI Group opposes the applications in respect of the leave clause is that we're of the view that in neither case has an error been made. AI Group would also submit that the variation is not necessary to achieve the modern award's objective, a requirement that does apply to applications made pursuant to section 160 of the Fair Work Act. Your Honour, I assume you have a copy of the written submissions that were filed by Australian Industry Group on 23 September in relation to this matter.

PN220

THE SENIOR DEPUTY PRESIDENT: I do.

PN221

MS DAVIES: In light of the submissions that have already been made, particularly those by my friends, Master Builders Australia, all I would seek to do is to highlight some of the key points in our submissions, your Honour, and to make some additional points or elaborate on some of those points in part if you're happy with that approach.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes.

PN223

MS DAVIES: Your Honour, the CFMEU's applications - and I would propose to deal with each of the applications together. If at any point you would like me to particularly distinguish between the Mobile Crane Award or the Joinery and Building Trades Award, please feel free to have me take that approach, your Honour. In respect of the issue of error, both applications made by the CFMEU appear to proceed on the assumption either that there has been an error simply because they would say that the issue was not dealt with in the award modernisation proceedings or, secondly, that there seems to have been an error because the tribunal, having considered the issue of dispute resolution procedure training leave, saw fit not to include such a provision in either of the awards. In both respects, AI Group submits that there has been no error for the purpose of section 160 of the Fair Work Act.

PN224

Turning firstly to address any potential suggestion that the issue was not dealt with during the proceedings, in respect of both modern awards the issue of dispute resolution procedure training leave was the subject of consideration during the stage 2 proceedings and, in respect of each application, AI Group's position is that firstly the record would show that the union did seek to include trade union training leave provisions in both modern awards. Secondly, that employer representatives opposed the inclusion of those provisions. Thirdly, that the bench decided the provisions were not appropriate for the modern awards.

PN225

I just wish to clarify in relation to the AI Group's written submission concerning the Mobile Crane Hiring Award which was referred to by my friend of the CFMEU, we do say in our written submission that the absence of detailed evidence before the full bench regarding the leave provision being a prevailing industry standard was notable. However, this is different, we would say, to the tribunal not having been on notice at all as to the issue. As I've said, the union did seek to include the provisions in their draft awards and opposite views were put forward by the employer representatives.

PN226

Indeed, even in the transcript of the stage 2 consultations that took place on 25 February 2009, at paragraph number 1963 there is a brief reference by Mr Maxwell of the CFMEU where he appears to be discussing the draft Mobile Crane Hiring Award and in fact does refer to clause 9 and the fact that there are some outstanding differences between the parties as to the drafts, including in relation to the dispute resolution training leave provisions. In that respect, your Honour, I would say that there's a difference between the tribunal not having been on notice as to this being an issue in contention in the proceedings as opposed to a case where the CFMEU simply may have failed to make persuasive or substantial submissions in relation to the issue. In these circumstances, your Honour, it would be our submission that to allow the issue to be reopened now would be unfair and also not what envisioned by section 160 of the Fair Work Act.

PN227

Your Honour, turning now to the second aspect of the potential interpretation of error - and that is that the tribunal having considered the issue has not included the dispute resolution procedure training leave in either of the awards - in respect of each application we do recognise that both the national Joinery and Building Trades Products Award 2002 and the Mobile Crane Hiring Award 2002 contain dispute resolution training provisions. However, we disagree that merely by now asserting this fact, the CFMEU has made out the requirement of establishing that dispute resolution procedure training leave was a prevailing industry standard in either the joinery and building trades industry or the mobile crane hiring industry.

PN228

Just to elaborate on this point further, I do make the point again - although I note that it was disputed by my friend from the CFMEU - that neither of the provisions in the National Joinery and Building Trades Products Award 2010 or the Mobile Crane Hiring Award of 2002 were operative since 27 March 2006 as a consequence of the Work Choices reforms. This point was made in our written submissions in relation to the Joinery Award, but I would also make the point in relation to the previous federal Mobile Crane Hiring Award. Your Honour, I would submit that this is relevant in the sense that there is potentially more than one way - that being referred to in a federal award - for the provision to have been considered a prevailing industry standard.

PN229

Secondly, and as was noted in AI Group's written submission regarding the Joinery Award, while some sectors covered by that award may have had pre-reform awards that included dispute training leave, not all the sectors - and, for example, the glazing sector which is referred to in particular in our written submissions - had this leave as a common standard. I did just want to reiterate the point made by the Master Builders Association.

PN230

Turning to the awards referred to in the draft award audit document prepared by the Australian Industrial Relations Commission and now available from Fair Work Australia, the Mobile Crane Hiring Award is stated as having replaced eight instruments in that draft award audit list. Of those eight instruments that were taken to have been replaced, only two contain dispute resolution training clauses and two further awards contain trade union training leave. That was out of a total of eight instruments.

PN231

In respect of the joinery and building trades industry and the awards taken to have been replaced by the modern Joinery Award, in that list, your Honour, I counted 24 awards taken to have been replaced and, out of those 24, only one contained dispute resolution training clauses and a further eight instruments contain trade union training leave. Again that was out of 24 instruments that were referred to in that list. Therefore, your Honour, even if the CFMEU is of the view that had additional evidence been put before the tribunal during the proceedings this may have made some difference, it would be our submission that there was a basis for the tribunal to come to the conclusion it did, which was not to insert dispute resolution procedure training leave on the basis that it's not a prevailing industry standard.

PN232

Your Honour, there is just one further point that I would make in relation to the suggestion that simply because the leave was included in the previous two key awards for each of the industries, that it should now appear in the modern awards for each industry. I refer to the case that was extracted at paragraph 4 of the CFMEU's submissions in respect of both matters and which has been previously discussed by the parties. That case, your Honour, is reference 2009 AIRCFB 989. In the submissions prepared by the CFMEU, paragraph 13 of that decision is extracted. However, you'll note that it reads, "The term of clause 9.7 was included on the basis that it reflected the terms of the NBCIA footnote admitted."

PN233

Your Honour, it's our submission that that footnote is in fact quite an important one. The reason for that is that the footnote refers to the decision of the full bench of the Industrial Relations Commission; the citation 2009 AIRCFB 345. That footnote was in fact to paragraph 73, which states, "We have added a dispute resolution procedure training leave provision on the basis that it is a prevailing industry standard." Therefore, your Honour, the simple assertion that the fact that, you know, a particular clause appeared in an award as relied on in the decision AIRCFB 2009, decision number 989, needs to be contextualised against the footnote reference that was made which was in actual fact that the provision was included on the basis that it was a prevailing industry standard.

PN234

Your Honour, moving along from the issue of error, in the event that the tribunal is inclined to allow for the inclusion of dispute resolution procedure training leave in the awards, then I note that the Master Builders Australia submission does make some proposed modifications to the wording of that clause and we would be generally supportive of that wording in the event the tribunal is inclined to grant the application. Your Honour, the final point I would make as referred to in our written submissions, is if the application of the CFMEU is to be successful in both matters, the proposed commencement date for any variation - it would be our submission that an appropriate commencement date would be 1 January 2011, given the late stage in the year that we are now at.

PN235

If the amendment was to operate from the date of the determination, then employers would have very little time to give employees their entire annual entitlement of five days' dispute resolution procedure training leave for the year 2010. Indeed, it would be a matter of some weeks, which may cause inconvenience and financial burden to employers. Similarly, if the amendment was to be backdated and be retrospective to 1 January 2010, the same issue would arise and we would also say that the CFMEU has demonstrated no exceptional circumstances for this to be made. Your Honour, those are my submissions, unless you have any questions for me.

PN236

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Borg, anything in reply?

PN237

MR BORG: Thank you, your Honour. Well, I would just like to recap really, if it pleases your Honour, and basically just to point out that at issue here is the prevalence of these provisions prior to the award modernisation process. My learned friends have spent time in their submissions - both in their written submissions and in their oral submissions - talking about the kinds of things that went on during the award modernisation process as to whether or not that points to any kind of error. That's not entirely my suggestion, your Honour, although it may well be probative.

PN238

The error that I'm pointing to here is the fact that previously the provision was a prevailing industry standard. It was not included and updated in the modern awards and on that basis an error is established, on the basis that a provision which was otherwise prevalent and was covered by both of the underpinning awards prior to the modernisation was not included in the modern awards, points to that error. I have nothing further really to say about the submissions that went on during the modernisation process. The only points that I raised in relation to that were to address the cross-issues of both of these parties in opposing this application. The real issue here is the prevalence of those issues and that has been met, and that points to a clear omission that was committed during the award modernisation process.

PN239

THE SENIOR DEPUTY PRESIDENT: Well, that's the very point that's disputed by the others, isn't it?

PN240

MR BORG: Yes, you're quite right, your Honour. They have not discharged any kind of proof whatsoever - they have not disproved that the award was not prevalent, for example, because that is our assertion, and neither have they pointed to any alternative instruments - - -

PN241

THE SENIOR DEPUTY PRESIDENT: Well, Ms Davies has gone to inspect the mobile cranes - two awards that had the dispute resolution training leave, and in the joinery, one out of 24 - - -

PN242

MR BORG: I doesn't just come down to how many pre-modern instruments included the provision, because of course a pre-modern instrument from Tasmania would be included in that number and obviously that hasn't got great coverage. It hasn't got great scope. What I'm pointing to is the national pre-modern awards which were the underpinning awards for the modern awards. That's the basis upon which these provisions were indeed prevalent and why the modern awards ought to be varied to include these provisions, such that no worker would be made worse off because of the award modernisation process.

PN243

My learned friends have spoken about the award modernisation process at great length and really that's not at issue. The modern awards objectives, as well; again, not at issue. The statute provides for variations to be made, albeit in exceptional circumstances, and this is the kind of exceptional circumstance where an omission has constituted an error that ought to be corrected. Again, it goes down to that prevalence issue. These pre-modern instruments were the ones with the most coverage, with the greatest scope. They were the ones that were the underpinning pre-modern awards for the modern instruments and on that - - -

PN244

THE SENIOR DEPUTY PRESIDENT: What difference will it make if they had the most coverage?

PN245

MR BORG: Well, in terms of them being national awards, for example.

PN246

THE SENIOR DEPUTY PRESIDENT: Isn't the national award (indistinct) circumstances of an interstate industrial dispute. When it was made - an interstate industrial dispute can be made with two respondents. Indeed, it can be made with one.

PN247

MR BORG: I take your point, your Honour. However, these were the underpinning pre-modern instruments that were used in the modernisation process. The decisions of the tribunal at the time refer directly to these instruments. I might suggest exclusively. They were the underpinning awards and on that basis they were prevalent. It's of no surprise that they should look to previous national pre-modern instruments as underpinning instruments, because every state has its specificity and every state has its variations. A NAPSA, whatever, that covers workers in Tasmania, you know, isn't highly probative if we're just looking at account of how instruments included that provision.

PN248

THE SENIOR DEPUTY PRESIDENT: Well, the award modernisation decisions of the full bench are replete with references to critical mass of the underlying awards and NAPSAs.

PN249

MR BORG: Yes, I'm aware of that, your Honour, but, as I've said, these were the underpinning awards during the modernisation process and that was the decision that the tribunal itself reached; that those ought to be underpinning awards. It's on that basis that I seek to establish the prevalence of these provisions.

PN250

THE SENIOR DEPUTY PRESIDENT: If that completes the submissions, I'll reserve my decision. I now adjourn.

<ADJOURNED INDEFINITELY [11.18AM]