TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 63777-1

SENIOR DEPUTY PRESIDENT ACTON

AM2011/40

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Construction, Forestry, Mining and Energy Union
(AM2011/40)
Joinery and Building Trades Award 2010
(ODN AM2008/15)
[MA000029 Print PR986370]]



Melbourne

10.16AM, WEDNESDAY, 12 OCTOBER 2011

THE FOLLOWING PROCEEDINGS WERE CONUDCTED VIA VIDEO LINK AND RECORDED IN MELBOURNE

PN1

MR S. MAXWELL: I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN2

MR R. CALVER: I appear for Master Builders Australia.

PN3

MS G. STAR: I appear for Australian Business Industrial.

PN4

MS C. BLADES: I appear for the Australian Federation Employees and Industries.

PN5

MR G. NOBLE: I appear for the AMWU, your Honour.

PN6

MR S. SMITH: I appear with MS G. VACCARO for the Australian Industry Group.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. I can indicate that I have received written submissions from all bar I think ABI, is that right?

PN8

MS STAR: That’s correct. We haven’t found any submissions in this matter, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. I have read all the submissions that have been filed. So parties should bear that in mind in making submissions to me. There’s not much point in repeating what you have said. So Mr Maxwell.

PN10

MR MAXWELL: Thank you, your Honour. Your Honour, we rely on our written submissions, however we wish to make a few additional points.

PN11

THE SENIOR DEPUTY PRESIDENT: One of the things you might address is why the others are wrong.

PN12

MR MAXWELL: I will hopefully do that in my submission.

PN13

THE SENIOR DEPUTY PRESIDENT: Right.

PN14

MR MAXWELL: Your Honour, the purpose of the application is to ensure the continued work coverage for workers previously covered by modernisable instruments. The modernisable instruments have been identified in our written submission. The application seeks to do three things. Firstly to amend the industry coverage of the award as reflected in the proposed variation to clause 4.8(a), secondly to occupational coverage as reflected in the proposed variation to clause 4.8(b), and further to amend the classification definitions in schedule B. In regard to the industry coverage the application seeks to include, we seek to include coverage of blastcoating, industrial spray painting and sandblasting, and the manufacture of fibrous plaster or of architectural ornaments of fibrous plaster.

PN15

We stress that the application seeks to provide industry coverage for companies that only perform the work in question. The union recognises that some modern awards will have some coverage of blastcoating, and spray painting, and sandblasting. We submit this occurs where the work is incidental to other activities. For example, shopfitting and companies covered by the joinery award, spray paint shop fitting components. As do joinery companies who produce kitchen cupboards. Vehicle repair shops have spraypainters to spray car parts. Gravestones are sand blasted to create lettering and finishes. And metal manufacturers use spray painting to apply a protective coating.

PN16

But we submit that in all of those situations the work is incidental to the main function of the company, that is shopfitting, joiner, vehicle repair, stonemasonry, or metal manufacturing. The companies that we seek to be covered by this application are specialist companies that only perform this work. Now to give you some examples of the types of companies we are talking about. Bundaberg Sandblasting is a Queensland company that does abrasive blasting with steel grit or garnet, in purpose it has built blast rooms, they perform soda stripping, high pressure water blasting, industrial painting, spray painting, with both conventional and airless equipment. Melbourne Sandblasting, a company that has conducted abrasive sandblasting, industrial spray painting since 1996, has a large workshop in Campbellfield.

PN17

They provide sandblasting, abrasive blasting, grit blasting, glass blasting and bead blasting, and who sandblast anything which is made of steel or wood. Earth Tech Onsite is based in Victoria also do sandblasting at their premises.

PN18

THE SENIOR DEPUTY PRESIDENT: What award are they paying pursuant to now?

PN19

MR MAXWELL: Your Honour, I’m not sure. And this is what we’re seeking to provide some (indistinct) here.

PN20

THE SENIOR DEPUTY PRESIDENT: Have you got an agreement with them?

PN21

MR MAXWELL: I haven’t checked, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Because the awards which highlighted this issue for you aren’t Victorian ones, are they?

PN23

MR MAXWELL: The awards are in Western Australia, and there is an award in Queensland. But then in terms of Victoria you have the common rule wage provisions that applied.

PN24

THE SENIOR DEPUTY PRESIDENT: Which ones were those?

PN25

MR MAXWELL: There was the construction minimum wage order that applied in Victoria. And because of the absence of the referral of the Kennett government to the federal government  - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Yes I know. I understand what you’re talking about, which instrument you’re talking about. But I’m asking you which particular instrument of those?

PN27

MR MAXWELL: Well, there’s also the Joinery and Building Trades Award, the Building Products Award, was a common rule award in Victoria.

PN28

THE SENIOR DEPUTY PRESIDENT: So are you saying these people were covered by the previous, what, national joinery award?

PN29

MR MAXWELL: We‘re saying some of the aspects of the work we were seeking to cover, were covered by the National Joining Building Trade Products Award, especially in regard to the plastering areas. Some are covered  - - -

PN30

THE SENIOR DEPUTY PRESIDENT: No. At this stage we’re only dealing with the sandblasting.

PN31

MR MAXWELL: In terms of sandblasting, we say that sandblasting is part of painting. They have been covered by the Joinery and Building Trades Products Award. And we say that there is the Blastcoating Off-site Award in Queensland that applied, the Industrial Spray Painting Award in Western Australia.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. I’m just asking about every other state. I don’t think this sort of work only takes place in Queensland and WA.

PN33

MR MAXWELL: No.

PN34

THE SENIOR DEPUTY PRESIDENT: Then you’ve gone to Victoria. I’m asking you what particular instrument, the name of it, previously covered by Victoria, New South Wales, Tasmania, Western Australia, et cetera.

PN35

MR MAXWELL: Well, your Honour, to the extent that this work is part of the painting trades. In Tasmania there is the Building Trades Award. And there are similar occupational building trades awards in South Australia and New South Wales. Yes, your Honour, we did refer to the Building Trades Award which applies in Tasmania, and that was dealt with in the termination proceedings in regard to CT2011/591. We also submit that at this stage the state based Building Trades Award had occupational coverage for Queensland and New South Wales, had not been before the tribunal for termination at this stage. So the awards we refer to in our written submission are those instruments that were specifically before the tribunal in regard to termination. And that is why we made the application.

PN36

But we know that at some stage we expect the tribunal will bring on the New South Wales and Queensland Awards for termination. And again we point out that those awards had occupational coverage of painters, which would include spray painting, sandblasting, and so forth. Which we say is part of the painting trade.

PN37

THE SENIOR DEPUTY PRESIDENT: Well, the manufacturing award covers the industries or part of industries of painting in 4.9(a)(2). They’re the items referred to in 4.9(a)(1). Painting doesn’t take place in a vacuum. It applies to something.

PN38

MR MAXWELL: That’s correct, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: And 4.9(a)(1) is pretty broad.

PN40

MR MAXWELL: It does, your Honour. But if you look at 4.9(a)(1), it’s mainly related to the metal industry. And the distinction we seek to make in these proceedings, which is not addressed by any of the employer parties, is that spray painting, and sandblasting, and blastcoating, is not only applied to metal products. It also applies to timber products, to glass products, to stone products, and Perspex products. And we say the applicant  - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Well, 4.10 is pretty broad. I mean, 4.9(a)(3) covers buildings. And then you go and, you know, it’s the repair, refurbish, recondition, maintenance, installation, test of fault, and then products. And 4.9(a)(1) as referred to in 4.10 is ships, boats, aircraft. It’s pretty broad.

PN42

MR MAXWELL: We understand, your Honour. But nowhere does it say the sandblasting of stone.

PN43

THE SENIOR DEPUTY PRESIDENT: Sandblasting of stone is what you’re relying on, is it?

PN44

MR MAXWELL: Nowhere does it state the sandblasting of glass. Nowhere does it refer to the spray painting of timber products. Nowhere does it relate to the blast coating of Perspex. Nowhere does it relate to the sandblasting or blastcoating of concrete. So these are the areas we say are not covered by the Manufacturing Award.

PN45

THE SENIOR DEPUTY PRESIDENT: Right. So these companies that do just sandblasting, they would also ships, boats?

PN46

MR MAXWELL: In going to the sandblasting of ships and boats, we would suggest that you would have some of the major companies such as Total Corrosion Control that would perform that type of work. And that company would apply bound by both the Construction Award, depending on where the protective coatings are being applied, and to some extent they would apply the Manufacturing Award in terms of the work on boats. Given that the Manufacturing Award does apply to that work, and those boats are made out of metal.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MR MAXWELL: And I said, your Honour, we recognise that the Manufacturing Award would include spray painting and sandblasting of metal products, and ships, and boats and so forth.

PN49

THE SENIOR DEPUTY PRESIDENT: So companies who just do this work, who would sometimes do metal products and sometimes do stone?

PN50

MR MAXWELL: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: So you’d be caught by the Manufacturing Award when they do metal, and another award, the Joinery Award, when they do stone?

PN52

MR MAXWELL: Well, your Honour, our preference would be that if they were to cross those sections, then it depends which one would apply, and that would be the Joinery Award. That’s our position. It’s not the position of the employers, of course. But that’s what we’re seeking by these application. Is that those companies that specialise that doing sandblasting and spray painting, in other words they’re not a manufacturer, this is the specialist work that they do, be covered by one award and that should be the Joinery and Building Trades Award.

PN53

THE SENIOR DEPUTY PRESIDENT: Okay, yes.

PN54

MR MAXWELL: Your Honour, if I can turn to the manufacture of fibrous plaster or architectural ornaments of fibrous plaster. Again you are talking of specialist companies that produce decorative cast plaster cornices, corbels, caps, roses, columns, pilasters, light sculptures, and vents. Companies such as AllPlasta Products covered by New South Wales, Vitale’s & Sons, Picton Hopkins, R&D Sayers, and Croydon Plaster Mouldings in Victoria, Aussie Plaster Products in Queensland, and Superb Ceilings in WA. Now these are not companies such as Lafarge’s, which is now known as Knauf Plasterboard, CSR or Boral, or produce large sheets of plaster board used on walls in building, or the mass production of cornices.

PN55

These are companies that produce products that are handcrafted from sharp detailed moulds, using methods using traditional materials, that create detailed custom products for architects, interior designers, and home decorators. These services including heritage work, restorations, and reproductions. These are companies that use the trade skills of plasters. You know, I just know that on the Master Builders Australia website, www.masterbuilders.com.au/plastererfibrous, it deals with the work of a fibrous plasterer. And they stated that:

PN56

Fibrous plasters make, apply and fix the internal linings of commercial and domestic buildings. Fibrous plasterers may perform the following tasks.

PN57

And it includes:

PN58

Prepare corner beading panel mouldings, ceiling centres, and other plaster fittings. Make fibrous plaster moulds in factories.

PN59

They then refer to specialisation of plasterers. This includes:

PN60

A modellers hand (plaster). A modellers hand makes plaster moulds. And a sheet hand (plaster) makes fibrous enrichments.

PN61

So we say that work that we are seeking to cover here is a specialist work of companies that will provide the architectural plaster materials.

PN62

THE SENIOR DEPUTY PRESIDENT: Who is Picton Hopkins in Victoria covered by prior to modern awards? Which award?

PN63

MR MAXWELL: Your Honour, it’s my understanding that the Joinery and Building Trades Award would have covered that work.

PN64

THE SENIOR DEPUTY PRESIDENT: The former?

PN65

MR MAXWELL: The former award, yes.

PN66

THE SENIOR DEPUTY PRESIDENT: Do you know whether they were a respondent to it?

PN67

MR MAXWELL: I’m not sure, your Honour. I’d have to check.

PN68

THE SENIOR DEPUTY PRESIDENT: And the Melbourne Sandblasting, are you saying that they were also covered by the former Joinery and Building Trades Award?

PN69

MR MAXWELL: To the extent that they engaged people in the painting trades doing sand blasting, yes. But they were covered because of its common rule application.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. But you say the scope of the former Joinery and Building Trades Award went to companies such as Melbourne Sandblasting?

PN71

MR MAXWELL: Your Honour, I would have to check on that. I take it on notice to provide a written response in that regard.

PN72

THE SENIOR DEPUTY PRESIDENT: Well it’s pretty crucial, isn’t it? I mean, the National Joinery Modern Award was pretty fundamental in the creation of the Joinery and Building Trades Award.

PN73

MR MAXWELL: It was your Honour, yes.

PN74

THE SENIOR DEPUTY PRESIDENT: If they weren’t covered by that, it does raise a serious question about why we’d be doing this. Yes.

PN75

MR MAXWELL: Your Honour, the second part of our application which seeks to amend the occupational basis of the award is intended to make it clear that a painter includes a blastcoater, spray painter, sandblaster, and shot blaster. And the plasterer includes solid fibrous plasterer, caster, and modeller. Both of these variations reflect the occupational coverage of modernisable instruments identified in our written submission, particularly at paragraphs 4.2 to 4.6. In regard to terrazzo workers, we point out that terrazzo is not only producing concrete. Since the 1970s polymer based terrazzo was introduced, which is more commonly called thin set terrazzo.

PN76

Initially polyester and vinyl resins were used to bond the resin. Today most of the terrazzo installed is a epoxy terrazzo. As such, we submit that that part of the terrazzo work is not covered by the Concrete Products Award. I know that I think the MBA say that all of this work is covered by the Manufacturing Award. Clearly the Concrete Products Award applies to some terrazzo work. We note that clause 4.1 of the Concrete Products Industry Award states that:

PN77

The concrete products industry means the fabrication or manufacture of cement products or concrete products including concrete panels, concrete pipes, monier or concrete tubs, baths, sinks, ventilating shafts, troughs, blocks, rollers, tiles, pavers, slabs, gutter bridges, plates, pile armours, bridge piles and similar articles and preparing reinforcement of steel or wire for use in making such articles.

PN78

Now, what we seek to distinguish here is between the terrazzo that is a concrete panel, as opposed to terrazzo that is a polymer based product.

PN79

THE SENIOR DEPUTY PRESIDENT: And why isn’t a polymer based product covered by the Manufacturing Award?

PN80

MR MAXWELL: Well, your Honour, there is no occupational coverage, or no occupation identified in the Manufacturing Award that refers to the occupation of a terrazzo worker. We just point out that the terrazzo worker, even though it is a polymer, it still involves the grinding down of the sheet, which includes the grinding down of marble and stone inserts that are in the terrazzo product. And to the extent that the Manufacturing Award doesn’t include anything to do with stone, we say that it wouldn’t apply.

PN81

THE SENIOR DEPUTY PRESIDENT: So polymers are what?

PN82

MR MAXWELL: They are polymer, or an epoxy, or a resin based material into which the marble chips or stone chips are imbedded, that is then set, and then ground down using floor polishing type pieces of equipment. They are then attached to buildings, or they could be used as kitchen bench tops, or those type of work.

PN83

THE SENIOR DEPUTY PRESIDENT: So why are they not covered by 4.10(s), (t), or (v) of the Manufacturing Award?

PN84

MR MAXWELL: Sorry, that was 4.10?

PN85

THE SENIOR DEPUTY PRESIDENT: (s), (t), and (v).

PN86

MR MAXWELL: Well with regards to (s), I suppose it comes down to a question of whether. The polymer based material used is plastic or rubber. Or substitutes for plastic or rubber. Clearly these products aren’t using a substitute for plastic or rubber, they’re using a substitute for concrete.

PN87

THE SENIOR DEPUTY PRESIDENT: There’s synthetic resin. Is there epoxy resin?

PN88

MR MAXWELL: We would say that is with the manufacture of the resin, not products made from the resin. That talks about synthetic resins, powders, tablets, et cetera, used in the plastic industry. So it’s talking about the manufacture of the resins before that is then applied to an industry. In regard to (b), again that is talking about the manufacture of the plastics, epoxy resins, and laminates of all descriptions. Now we say that is just the actual resin or the manufacture of it, it is not the product that includes the resin.

PN89

THE SENIOR DEPUTY PRESIDENT: Well, 4.9(a)(1) covers the industry of any products made from or contain materials or substances set out in clause 4.10.

PN90

MR MAXWELL: It does, your Honour. But then it comes down to a question about whether the classification structure in this award contains the appropriate classifications for the work being performed.

PN91

THE SENIOR DEPUTY PRESIDENT: And so what award were these polymer base terrazzo workers covered by prior to the modern awards?

PN92

MR MAXWELL: The terrazzo workers were covered by the National Joinery and Building Trades Award, and by various state NAPSAs that applied, including the one referred to in our submission. And the Plasterers and Terrazzo Workers Factory and Mixed Enterprise Award in South Australia, and various plasterer’s awards. Your Honour, I should state that terrazzo work has traditionally been the work of a plasterer. It’s part of the plastering trade, and that is where the award coverage was dealt with by the Industrial Relations Commission. And that is why this  - - -

PN93

THE SENIOR DEPUTY PRESIDENT: Caster work as a plasterer?

PN94

MR MAXWELL: Yes.

PN95

THE SENIOR DEPUTY PRESIDENT: Well, a plasterer is already covered by the Joinery Award.

PN96

MR MAXWELL: We just seek to ensure that it is recognised that these terrazzo workers are included within that definition. That they’re included to the extent that people may not believe that it’s work of the plasterer. Now, it may be that inserting a definition of plasterer in the award may deal with the issue we are seeking to address. That may be one alternative. But we seek to make clear that these workers do have the appropriate safety net applied to them, which we say is the joinery award.

PN97

THE SENIOR DEPUTY PRESIDENT: Okay.

PN98

MR MAXWELL: Your Honour, the final part of our application seeks to vary the classification schedule of the award, by inserting the occupations for modernised instruments referred to in our written submission, and these are identified in paragraphs 4.2, 4.6 and paragraph 5.2. Your Honour, in regard to the submissions of the other parties, the AIG refers in paragraph 5 to the modern award’s objective. That is dealt with in section 3 of our written submission. In paragraph 6 they find that the proposed variation would disrupt work coverage, and substantially increase costs, but provide no evidence to back up this claim.

PN99

In paragraphs 8 to 11 they refer to the agreement between the AIG and CFMEU reached during the award modernisation proceedings. In regard to that agreement, we make the following points. Firstly the CFMEU’s position is consistent with paragraph 2 of that agreement as one seeks to amend the coverage in line with the NAPSAs that the CFMEU was either the only or the major union respondent. The application is not inconsistent with clause 4 of the agreement, as we say the work is not covered by the Manufacturing Award. The facts that Fair Work Australia has not incorporated what the AIG believes is a critical aspect of the agreement between the parties, ignores the reality that the tribunal is not required to make modern awards to reflect any agreements made between the AIG and the CFMEU, or indeed any other employee organisation and the CFMEU.

PN100

We also point out that the AIRC Full Bench in the award modernisation proceedings in [2009] AIRCFB 50 states in paragraph 55 that:

PN101

The CFMEU filed a draft Off-site Construction Industries Award on 31 October 2008. The AiGroup proposed that the scope of any such award be limited to avoid intrusion into the manufacturing industry. The CFMEU and AiGroup reached an in-principle agreement directed at resolving this tension, although the practical effect of the agreement is difficult to ascertain. The CFMEU lodged an amended draft award on 20 January 2009. The amended award apparently did not resolve the AiGroup’s concerns. 

PN102

So clearly, your Honour, the Full Bench in the award modernisation was of the opinion that the practical effect of the agreement was difficult to ascertain.

PN103

Your Honour, in paragraph 12 the AIG refers to the coverage of painters. We disagree that painters are only covered by the Joinery Award if painting is carried out in an industry not covered by another modern award. If painters are working in any of the industries identified in clause 4.8(a) of the Joinery Award, then they are covered by the Joinery Award. With regard to paragraphs 13 to 15, I’ve already addressed them in my submissions earlier. I would add that the coverage of plasterers is not limited as suggested by the AIG in clause 16, as the award also applies to the plasterers identified in 4.8(a). Turning to the MBA’s submissions, we disagree with the assertion of paragraph 2.5 that there is no ambiguity or uncertainty. As we have already demonstrated, the work is not covered by the Manufacturing Award.

PN104

In paragraph 3.9 they make reference to cabinet makers. We say this reference has no bearing on this application, and indeed we would disagree with the MBA’s assertion that in-built furniture is covered by the Timber Award. There is no defined product of in-built furniture. It is part of joinery work and covered by the Joinery and Building Trades Award. In paragraph 3.15, the MBA claim that blastcoating and sandblasting is only related to the preparation of metal. As we have also demonstrated, this is incorrect. These processes are also applied to stone, cement, timber, glass and Perspex. Indeed one wonders what processes the MBA thinks is used to restore historical buildings if it is not sandblasting or blastcoating.

PN105

They also make reference to terrazzo workers only making tiles with concrete or concrete composites. We say this is incorrect as there are also wall and floor features and kitchen bench tops, and also there is polymer based terrazzo. In paragraph 3.16 the MBA assert that the union realises that the Manufacturing Award applies to the industries we seek to be covered by this application. This is incorrect, and a distortion of our submission. What we identify is the limitation of the coverage of the Manufacturing Award. The MBA repeatedly claim that the occupations we are dealing with are already covered by the Manufacturing Award, but they have not identified in a practical way how they fit into the Manufacturing Award classification structure. It begs the question where does a plasterer or a modeller fit into the Manufacturing Award classification structure.

PN106

In paragraph 3.19 the MBA refer to section 160 of the Fair Work Act. We address those in our written submission, but also note that the MBA refers to the Tenix case, and to paraphrase it, it states that the tribunal generally erred on the side of finding an ambiguity or uncertainty, where there are rival contentions advanced and an arguable case is made out for more than one contention. As we have demonstrated, the arguable case for our contention was opposed by the MBA and others. In paragraph 3.21 the MBA refers to section 134 of the Fair Work Act. The union has dealt with this in our written submission. We further point out that the main requirement in the modern award objective, is to ensure the modern award provides a fair and relevant safety net.

PN107

We say that based on the current provisions of the modernisable instruments identified in our submission that the Joinery and Building Trades Award is the appropriate comparable safety net that should apply. In paragraph 3.23 the MBA refer to the AIRC Full Bench decision. This suggests that normally a significant change in circumstances will be required for the AIRC to vary substantial award terms. We submit that the termination of modernisable instruments, particularly after the referral of powers by the majority of states, both of which occurred after the modern awards were made, would fit the bill of an exceptional circumstance. We further point out as a later Full Bench of Fair Work Australia identified the requirements of this type of application, and we refer to that in paragraph 2.2 of our written submission.

PN108

In paragraphs 3.25 and 3.26 the MBA finally deal with the issue of classifications. We point out that the insertion of the occupations at the classification levels that we seek are appropriate based on the previous awards that applied. The Blastcoating Award, and the Industrial Spray Painting and Sandblasting Award, both provided that blastcoaters, sandblasters, shop fitters and spray painters, were paid at the trade rate which is level 5 under the Joinery Award. The application of plastering occupations are based on classification structures of previous plastering awards referred to in our submission, and the relationship of the occupations to the trade level. We note, however, that the MBA had not identified any other award classification structures that include a reference to the occupations that we are dealing with that allocate them to other levels.

PN109

In regard to the AMWU’s submission, they essentially claims that the CFMEU refer to the potential coverage of the Manufacturing Award, which is incorrect as we say the work is not covered by the Manufacturing Award. They also claim that the work is covered by the Manufacturing Award, which we have demonstrated is not the case. Finally with regard to the AFEI’s submission in paragraph 5, they claim that the award modernisation Full Bench decided that they do not wish awards in the building and construction group to intrude into what are more properly covered by the Manufacturing Award. Your Honour, what the Full Bench actually said is the following. In paragraph 54:

PN110

The exposure draft of Joinery and Building Trades Award 2010 (Joinery Modern Award) is largely based on the current National Joinery and Building Trades Products Award 2002 (National Joinery Award), as it applies in the off-site sector. As with each of the exposure drafts published for this industry group, it is desirable that during the consultations consideration be given to rationalising the allowances in the exposure draft published, in particular special rates.

PN111

In paragraph 55:

The CFMEU filed the draft Off-site Construction Industries Award on 31 October 2008. The AiGroup proposed that the scope of any such award be limited to avoid intrusion into the manufacturing industry. The CFMEU and AiGroup reached an in-principle agreement directed at resolving this tension, although the practical effect of the agreement is difficult to ascertain. The CFMEU lodged an amended draft award on 20 January 2009. The amended award apparently did not resolve the AiGroup’s concerns. Nor was the amended draft acceded to by the MBA.

PN112

In paragraph 56, which is where the AFEI took the quote:

We accept the need to consider a modern award or awards covering other work within the awards in the current building, metal and civil construction group, as they apply beyond the building and construction industry. We are conscious, however, of the need to avoid such an award or awards intruding into manufacturing activity, which would be more properly regulated by the Manufacturing Modern Award. 

PN113

The exposure draft of that award,

that’s the manufacturing award

as revised in stage 2 incorporates elements of the draft off-site award initially proposed by the CFMEU. Specifically clay articles, glazing, and gypsum and plaster board manufacturing. As noted above, at this stage the cement and concrete product industry we consider in stage 3.

PN114

They then went on in paragraph 57:

The terms and scope of a modern award applying to building trades and activities off-site was not subject to detailed discussion in our consultations and the CFMEU’s amended draft came too late to allow broader input into the issues raised. In the circumstances we have decided to publish an exposure draft for off-site building work largely based on the current National Joinery Award as it applies in the off-site sector. That exposure draft is entitled Joinery Modern Award. We shall give further consideration to the scope of such an award, or any additional awards to cover other off-site work, during the consultations. The CFMEU will have the opportunity to elaborate on its proposal and other parties will be able to provide their views in the next part of the Stage 2 consultation process.

PN115

So your Honour, at the time of the issuing of the exposure draft, the tribunal was still weighing up the options in regard to the final coverage. In the decision where they made the Joinery and Building Trades Award, which is [2009] AIRCFB 345, they dealt with that award in paragraph 112. And it states:

PN116

The Joinery and Building Trades Award 2010 is both an industry and an occupational award. The industries covered by the award are joinery work, shopfitting, prefabricated building, stonemasonry and glazing contracting work. The occupations covered by the award are a carver, letter cutter, carpenter, joiner, sign writer, painter, stonemason and plasterer. An employer employing an employee in those occupations will be covered by the award unless the employer is covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This provision in the coverage clause is designed to overcome the overlap the exposure draft had with other modern awards and has necessitated amendments to or deletion of some of the definitions in the exposure draft. The award specifically excludes those covered by the BECC Modern Award. Pre-cast concrete manufacturing and associated occupations have not been included in the award pending the consideration of the cement and concrete products industry in Stage 3.

PN117

In the same decision in paragraph 164, they dealt with the coverage clause of the Manufacturing Award. And it states:

PN118

The coverage clause of the Manufacturing Modern Award, one of the priority modern awards, has been varied to include all or a significant part of the brush and broom making, chemical, clay and ceramics, furnishing, glass, gypsum and plasterboard manufacturing, insulation materials manufacturing, paint manufacturing, rope, cordage and thread and saddler, leather and canvas industries. Electrical contractors and glazing contractors have been excluded from the coverage of the award as they are covered by other awards. The production of polypropylene/polyethylene has also been excluded from the coverage of the award pending consideration of the oil and gas industry in Stage 3. The coverage clause of the Manufacturing Modern Award may require further variation once the coverage of other modern awards, in particular that to cover the timber industry, is known.

PN119

Now your Honour, before we go to those two sections or paragraphs of the Full Bench decision that made the Joinery Award, it’s clearly identified that the tribunal recognised that the Occupational Award of painters and plasterers is to be covered by the Joinery and Building Trades Award, which is what we are seeking to ensure is applied by the amendments we seek to make to the occupational basis of this award. Then in regard to the manufacturing award, we say that that is to gypsum and plasterboard only, and the products that are derived from that. It doesn’t include the manufacture of custom built plaster products.

PN120

THE SENIOR DEPUTY PRESIDENT: Well, the way this modern joinery award operates, as I understand it – and think Mr Calver outlined it – is that you cover certain industries.

PN121

MR MAXWELL: Yes.

PN122

THE SENIOR DEPUTY PRESIDENT: And it also covers certain occupations to the extent that there isn’t another award which has a classification which is more appropriate.

PN123

MR MAXWELL: Yes.

PN124

THE SENIOR DEPUTY PRESIDENT: So in other words in terms of the occupations, the Joinery Award covers those who are in those occupations which don’t fit neatly into the coverage clause of other awards.

PN125

MR MAXWELL: That’s correct.

PN126

THE SENIOR DEPUTY PRESIDENT: And indeed the classification structure of the Joinery and Building Trades Award 2010 in respect of the occupations slots each one of those occupations into the classification structure.

PN127

MR MAXWELL: Yes.

PN128

THE SENIOR DEPUTY PRESIDENT: So to the extent that you seek to cover sandblasting of stone, blast timber products, Perspex and concrete, which you say are not covered by the modern Manufacturing Award, and you seek to have them covered by the painter, under your argument aren’t they already covered?

PN129

MR MAXWELL: Yes they are. But we seek to remove any doubt as to that coverage.

PN130

THE SENIOR DEPUTY PRESIDENT: And in respect of the plasterer, same argument applies, doesn’t it?

PN131

MR MAXWELL: It does, but to the extent that they are the, I suppose, modern trade aspects of the plastering trade. The below trade work of the plastering trade which we had sought to deal with, they are changes to the classification structure.

PN132

THE SENIOR DEPUTY PRESIDENT: Well, indeed you have changed to the definition of the occupation of plasterer to include solid and fibrous plasterer, casterer, and modeller. To the extent that you add those additions, and put those additions in a level other than level 5, they actually alter totally the operation of 4.8(b). Because 4.8(b), every one of those occupations is reflected in a level in the classification structure.

PN133

MR MAXWELL: Yes, your Honour. In regard  - - -

PN134

THE SENIOR DEPUTY PRESIDENT: So you want to include a modeller as part of the plasterer, but a plasterer is a level 5. You want to put a modeller at level 6.

PN135

MR MAXWELL: Yes, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: That’s a total change to the structure of the award.

PN137

MR MAXWELL: It’s a change to the structure to the extent that the skills of a modeller are advanced skills of a plasterer.

PN138

THE SENIOR DEPUTY PRESIDENT: So you say.

PN139

MR MAXWELL: So we say.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Anything else?

PN141

MR MAXWELL: No, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: Thank you. Who’s going in Sydney?

PN143

MR CALVER: I’ll proceed first, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Calver.

PN145

MR CALVER: Would your Honour have our submissions, your Honour?

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN147

MR CALVER: However, we would like to correct this reference to paragraph 3.18, which is quite critical. We then go to (g) third line on the top of page 10. It should be 4.10(d)(g), not 4.10(g). 4.10(g) relates to (indistinct) lines, and we need to refer to gypsum, plasterboard, fiber cement, similar materials and all the products made there from. So I apologise for that omission from paragraph 3.18. so we rely on the written submission with that correct, your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes.

PN149

MR CALVER: The (indistinct) here is the test established and required to be satisfied by the CFMEU for its own submission, that it has not met. The CFMEU indicates that, in paragraph 3.4 of its submission, it seeks to ensure that workers in off-site building and construction occupation not covered by another modern industry award, are covered by the award that is subject to these proceedings. We say that the CFMEU has failed to meet the criteria which it itself has established for the success of its application. We think we have demonstrated that there is no gap in coverage, and certainly no discontinuity as has been alluded to but not shown in palpable form by the CFMEU.

PN150

The issue is quite clear. What was it that arose from the proceedings of (indistinct) instruments that links to the current application? The CFMEU has failed to show how it is that workers who might have those instruments terminated, have been disadvantaged who are not covered by a modern award. That is particularly the case in the context of a logical non sequitur that was perpetrated on Mr Maxwell in raising companies that are purported to form a secret industry, but in fact without him knowing the coverage of those companies whether or not they’re paid in accordance with the manufacturing or other awards, or what their history is. So there has been no demonstration whatsoever that there is a class of worker who is covered by the criteria that the CFMEU itself established for success in this matter.

PN151

It’s a complete logical non sequitur to arrange those companies purport to say that assertion is eminence of a secret industry, and they’re not to have any material whatsoever before the tribunal that points to the coverage of those particular companies. We say that the Manufacturing Award clearly covers the work that was discussed in the CFMEU application, and about which it was a clear indication between your Honour and Mr Maxwell of that coverage existing. If I take your Honour to clause 4.9(a)(1) in respect of the blastcoating industry. It says that the coverage that (indistinct) means the following industry and parts of industries. The manufacture, the making, assembly, process, and heat work treatment, fabrication and preparation of the product, structures, articles, parcel components set out in clause 4.10.

PN152

You then go to 4.10 and I note that the list at 4.10 is not exhaustive, so therefore where you have a provision which says ‘and like products’, because the list is non exhaustive, the normal rules of interpretation would mean that the use of genesis rule does not require them to be read down. If it was exhausted it would. So you then go to paragraph (c)(c), you have paint, decorative, or protective surface coatings or coverings of associated products. And that leads us immediately to the conclusion that blastcoating, for example is covered by the manufacturing award. The points to take from that analysis I submit, your Honour, are that because the list in the manufacturing award is inclusive, and because the headings are (indistinct) covering, for example, associated products related to paint, decorative, or surface particle coverings, the union cannot articulate that there is a secret industry based on (indistinct) where that proposition is so generalised.
And I take you to that example in the context of the blastcoating. I can take you to 14(g)(g), and the same regard with respect to terrazzo workers. Because it is, as Mr Maxwell advanced from the plaster work, it says at (g)(g) these reference I correct, gypsum, plasterboard, fiber cement, and similar materials that all products made there from. Now, because the list is inclusive, exhaustive, not able to read down, and to be read expansively. And that fits in with the way in which the Manufacturing Award fits into the (indistinct) of the other awards, and the way that we explicated (indistinct) or you’re exempted from our written submission. We make the same point about Mr Maxwell naming companies from the plastering industry, and not articulating the coverage or any gaps in the coverage, or importantly as a logical non sequitur.

PN153

You can’t name companies asserting that there is a gap, and not have the evidence about the manner in which they are covered. Terrazzo workers, as I said, they are covered what we say by 4.10(g)(g), and mainly by 4.10(s), (t) and (v), it’s quite clear that they are covered. And that Mr Maxwell admitted that they are generally referred to as plaster workers. Going specifically to the points that Mr Maxwell raised in relation to the Master Builders submissions, the point we were making about (indistinct) workers is in fact an interpretation that the Fair Work Ombudsman has published, and the Master Builders was using that as an example of how the Joinery and Building Trades Award operates in the manner that we set out in paragraphs 3.7 on. And the Fair Work Ombudsman has indicated that because the Timber Industry Award contains a specific occupation of cabinet makers that is not covered by the Joinery Award, that appropriate coverage is the Timber Industry Award.

PN154

And the same Manufacturing Award where it’s more specific and even more generalised would displace the specific nature of the Joinery and Building Trades Award. In respect to the criticism made about the way in which we have applied terrazzo workers, we used the word ‘usually’ tiles there. We did not seek to limit the category of work the terrazzo workers do. The same point I made about the Manufacturing Award, being inclusive in that. It is not our job, as Mr Maxwell would have it’s our job, to show how these occupations and industries fit into the Manufacturing Award, although we’ve done that and drawn on the CFMEU’s own submission in that regard. The applicant bears the onus of showing there is a gap in coverage.

PN155

It underlines our point where Mr Maxwell turns to us and says well you haven’t shown completely how it is that the Manufacturing Award covers every aspect of the work which is detailed. Although we say that we have made a great advance on that, and the AIG has filled in the gaps because we have not put in our written submission. Mr Maxwell then went on to say that the termination of modernisable instruments was a sufficient trigger to overcome the normal barrier to applicants that there is a significant change in circumstances. Now, without showing that there is a gap in award coverage, without tracing any award histories, what circumstances have changed? None.

PN156

The instruments haven’t been terminated. The instruments might be terminated. But he hasn’t demonstrated that there is anybody, or a category of workers, disadvantaged. And there is simply insufficient evidence before the tribunal, save for some assertions which we don’t accept without evidence, that there are occupations that aren’t covered. Some points we were making in respect of classifications, is that there is no evidence of how the translation table has occurred. In other words if Mr Maxwell wants to assert that in the prior awards there is evidence of the allocation which has been put forward by the CFMEU, then we would say it is incumbent on the CFMEU to show that a particular provision of a particular award in a table that clearly articulates that that reflects the current classifications which he sought to allocate to these occupations.

PN157

In the absence on that, the onus is on him, it’s not on us, to show that these classifications are inappropriate. Without that evidence before the tribunal, again we say that Mr Maxwell has failed to satisfy the tribunal that there is a necessity for change. In short, your Honour, our written submissions show that the case has not been made out and the application should be refused. If it please the tribunal.

PN158

THE SENIOR DEPUTY PRESIDENT: Thank you. Who’s next? Mr Smith?

PN159

MR SMITH: Yes. Thank you, your Honour. We also rely on our written submissions in support of the position that the application be rejected. We strongly oppose the application. In terms of the comments made by Mr Maxwell about the proposition in paragraph 6 of our written submission where we say that the proposed variation would significantly assert the award coverage has substantially increased costs for a large number of employees of the Manufacturing and Concrete Products Award. What Mr Maxwell said is that we provided no evidence in support of this proposition. But of course as Mr Calver has pointed out, the applicant is the one that should be coming with evidence in support of the application that it is making, and there hasn’t been one iota of evidence about it.

PN160

But in terms of this point, the evidence of specific companies is not required because it is very clear that if you look at the terms in the joinery modern award, and the terms in these two modern awards, the joinery modern award is a far more costly and flexible instrument, the penalties are much higher, the shift loadings are much higher. So any company that is dragged out of coverage over these awards, that is the joinery modern award will suffer an obvious very significant increase of cost and loss of flexibility. With regard to the comments that Mr Maxwell made that there is specialised companies that do sandblasting and spray painting, in our experience there are a large number of those companies that are covered under the Manufacturing Award.

PN161

There is all sorts of coatings and processes carried out by specialised companies that have always been covered under the Metals Award, or in more recent terms under the Manufacturing Award. They are companies that do galvanising, spray painting, sandblasting, et cetera. Of course a large number of spray painting firms will be under the vehicle modern award, but there are also a large number of firms that are doing work spray painting and sandblasting steel products, otherwise coating steel products. As your Honour has highlighted, the scope of the manufacturing modern award is very broad. When it comes to coating and painting and treating functions, 4.9(a)(2) deals with a long list of items.

PN162

And even if it wasn’t included there, the fact that 4.10(c)(c) deals with paint and protective coatings, and 4.9(3) deals with installation, it would be covered anyway. But it clearly is covered. The application of paint, or the application of any of these finishing or treatment processes, are clearly covered through either 4.9 or 4.10, or a combination of both. In terms of Perspex, and polymers, vinyls, et cetera, clearly they are covered by 4.10(s), (t) and (v) as your Honour has highlighted. There is a reference to stone in (x), but the Joinery Award does apply to stonemasonry as an industry as well as occupation. So if it is legitimately part of the stonemasonry industry, then the Joinery Award already covers it. But in terms of companies that are already doing this spray painting, shop blasting, sandblasting work, generally they will be covered under the Manufacturing Award.

PN163

The same with glass. The reference to glass in (f)(f) of 4.10 was quite broad. And to the extent that it’s not covered there, then clearly the coverage of the Joinery Award to the glass industry now is quite broad. When it comes to terrazzo work, if it’s legitimately part of the trades and occupations that are already part of the Joinery Award, then no variation is necessary. But clearly where that type of work is now carried out with plastic and associated products, it would be under the Manufacturing Award. There is nothing unusual about having split award coverage. If you take the issue of, say, pipes. If pipe are made out of steel or plastic, then it’s a mainstream part of the Manufacturing Award. If they’re made out of concrete, then it’s the Concrete Products Award.

PN164

So we say that this would have a major impact on the coverage of the Manufacturing Award, and to some extent the Concrete Products Award. Mr Maxwell highlighted, or submitted, that there is nothing in the classification structure of the Manufacturing Award that refers to these particular occupations and trades. But that reflects a complete misunderstanding of the way that the Manufacturing Award classification structure is drafted. It’s not intended to refer to specific jobs or occupations. It’s very broad. And it clearly covers hundreds and hundreds of different types of jobs and occupations.

PN165

Mr Maxwell made some reference to the agreement that we reached back in 2008, and it was pleasing to see that the CFMEU are not seeking to walk away from that agreement. So we look forward to ongoing joint submissions in support of put forward there which, as your Honour is aware, we have argued in various other proceedings that we need that exclusion for work covered under the Manufacturing Award to avoid arguments of this type intruding upon the coverage. With all of these specific issues, quite a lot of them are set out in our submission. But I did want to highlight that that list of awards in 5.2 of the CFMEU’s submission, all those awards are NAPSAs.

PN166

The first one is a Queensland NAPSA 2011, 315 is a South Australian NAPSA, 502 is a WA NAPSA, and 538 is a WA NAPSA, 511 is a Tasmanian NAPSA, 688 is a New South Wales NAPSA, 704 is a South Australian NAPSA. We check the order list for stage two of the award modernisation proceedings, and every one of those NAPSAs was on the list either of awards that were dealt with as part of the manufacturing group in that plaster area. All of those awards were on the list. And the other ones were on the list for the construction group (indistinct) So in our submission they have all been dealt with, and this variation has no merit.

PN167

Not one employee, not one tangible employee, has been identified by the CFMEU as dropping out of award coverage as a result of the termination or impending termination of any of those instruments. And we are not convinced that there is any such employee. But even if there was, there’s plenty examples where the tribunal has not extended award coverage nationally on the basis of coverage within one state, or a few states. And this is a situation here. You’ve got NAPSAs applying in one or a few states as a basis for meeting for national modern award. But as we have said, we are not convinced that there is any employee in the category that Mr Maxwell is worried about. And he did not even try and hide the fact that what the CFMEU are trying to do, is to cover the types of work that are the subject of this application under the far more costly and inflexible Joinery Awards than the awards that they’re all covered under, in our submission.

PN168

Those are the reasons why we strongly oppose the application. If the tribunal pleases.

PN169

THE SENIOR DEPUTY PRESIDENT: Thank you. Who’s next?

PN170

MS STAR: Thank you, your Honour. As your Honour has already identified, we have not filed submissions in respect of this matter as the relevance of this matter came to our attention yesterday when we appeared in matter 2011/39. As such, we don’t seek to raise any additional matters and we would like to provide just support of the submissions which have been made by Australian Industry Group, Master Builders, and the Australian Federation. We agreed that the application as sought by the CFMEU, which is corrupt and confused, clearly contemplated and intended award coverage, especially in respect of the Concrete Products Industry. And we are concerned at preserving the integrity of the Concrete Products Award, such that employees in that industry are not dragged out of the industry where the worked merely described under the broad definition, as sought by the CFMEU, which is a manufacture of architectural ornaments made from plaster or concrete.

PN171

We say that sufficient evidence has not been provided that concludes that this area of work is so specialised as to justify the variations sought, when the likely result will be dual award coverage if found many of those employees are in the concrete products industry. If, however, the variation was to be made by the tribunal, it is in our view that it would be appropriate and necessary to clearly include an express exclusion cutting out the scope of the work which is wording covered by the Concrete Products Award. We say that this would be appropriate in clause 4.1 of the Joinery and Building Trades Award, which already only applies to other awards which are excluded. And that would go to employers or employees covered by the Concrete Products Award. If it pleases the tribunal.

PN172

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Blades.

PN173

MS BLADES: Thank you, Senior Deputy President. I’ve listened to the submissions made by the CFMEU and in our view I remain opposed to the application as made by the CFMEU. We rely upon our submissions, and I won’t go over it again. We do support the written and verbal submissions of the other employee groups here today. If the Commission pleases.

PN174

THE SENIOR DEPUTY PRESIDENT: Mr Noble.

PN175

MR NOBLE: Your Honour, Mr Maxwell stated that the industry weren’t covered by the Manufacturing Award, but as Mr Smith and Mr Calver clearly demonstrated, they do fall within the Manufacturing Award. The fact that the Manufacturing Award doesn’t specifically mention blastcoating, timber products, Perspex and concrete, is irrelevant in our opinion. They don’t have to be mentioned. They are part of the industry. They are also part of, as he pointed out – all we say is that I vote in favour of (indistinct) also been provided by Mr Calver and Mr Smith, so 4.10(c)(c), for example. But also Mr Maxwell’s terminology, he uses blastcoating, and he mentions timber products, and Perspex, and concrete, and so on. But he doesn’t do that in his applications. It’s just those materials itself. So it is a light application, in any case. I don’t think we need to say anything further, your Honour. It’s all covered off.

PN176

THE SENIOR DEPUTY PRESIDENT: Mr Maxwell, you’re on your own.

PN177

MR MAXWELL: Well, I don’t think it’s unusual for the CFMEU to come out in front of the other parties, so to speak. Your Honour, I don’t really wish to go on with the issues that have been discussed. However, I do wish to make two points which I think are of concern and arising out of the submissions of the employer parties today. Both Mr Calver on behalf of the Master Builders Association, and Mr Smith on behalf of AIG, have referred to 4.10(cc) which deals with paint, decorative, or protective surface coatings or coverings and associated products. They then draw around to say that the installation of those products, or the use of those products, is covered by the Manufacturing Award.

PN178

If you took that to its logical conclusion, that would then mean that the Manufacturing Award applied to anyone performing painting, or sandblasting, or industrial coating, on construction sites. There is no exclusion within the Manufacturing Award to work covered by the Building and Construction General On-site Award. And so I caution the tribunal accepting that coverage as proposed by the MBA and the AIG, because that significantly alters or raises potential disputation in regard to the coverage of the Manufacturing Award, and the coverage of the Construction Award. And the other point I’d make is that Mr Calver seeks to rely on the interpretation of the Fair Work Ombudsman in regard to the issue of cabinet makers.

PN179

Where if you draw the corollary there to this situation, as there is no mention in the Manufacturing Award, of painters, spray painters, or plasterers, well then the Joinery and Building Trades Award will apply. So again we caution the reliance of anybody on the interpretations of the Fair Work Ombudsman, and we note that the interpretations or views of the Fair Work Ombudsman have no weight in law. It is up to the Tribunal and the courts to decide the appropriate coverage of awards. They are the only points we wish to make at this stage. Your Honour, I will take on board the issue raised about the coverage of the Joinery and Building Trades Products Award 2002. I will check this and I will advise you in writing of what the coverage of that award was.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes. How long do you think it will take to do that?

PN181

MR MAXWELL: Your Honour, I should be able to provide that advice within the next day. Either today or tomorrow.

PN182

THE SENIOR DEPUTY PRESIDENT: Okay. So that should go up on the website on Thursday or Friday. For anybody who wants to say anything about it, to do so quickly, say by next Tuesday. And if you want to say anything in reply, Mr Maxwell, by next Thursday the 20th, assuming that all that timing is able to be met, which will depend on you to a large extent.

PN183

MR MAXWELL: Yes, your Honour.

PN184

THE SENIOR DEPUTY PRESIDENT: Thank you. I will now adjourn.

<ADJOURNED INDEFINITELY [11.32AM]