PN1

THE DEPUTY PRESIDENT: Yes, good morning. I have listed this application to vary the Building and Construction General Onsite Award for conference. The proceedings are being recorded but we are in conference. I might just for the record take the appearances and I will begin with the applicant.

PN2

MR D LYONS: Deputy President, Lyons, initial D, if it pleases the Commission. I have with me O'Dwyer, initial S, a director of the Traffic Management Association of Australia, a registered organisation of employers under the Act.

PN3

THE DEPUTY PRESIDENT: Yes, thank you, Mr Lyons. In Brisbane?

PN4

MS L ZHOU: May it please the Commission, Zhou, initial L, appearing for Australian Business Industrial and New South Wales Business Chamber.

PN5

MS L REGAN: If it pleases the Commission, Regan, initial L, for the Housing Industry Association.

PN6

THE DEPUTY PRESIDENT: Yes, thank you, Ms Regan. In Canberra?

PN7

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

PN8

THE DEPUTY PRESIDENT: Thank you, and in Sydney?

PN9

MS B PAUL: Ms Paul, initial B, your Honour, from the Australian Industry Group.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR C SPENCE: May it please the Commission, Spence, initial C, from the Civil Contractors Federation.

PN12

MR S CRAWFORD: Crawford, initial S, from the AWU, your Honour.

PN13

THE DEPUTY PRESIDENT: Thank you, Mr Crawford.

PN14

MR S MAXWELL: If the Commission pleases, Maxwell, initial S, for the Construction and Forestry, Maritime, Mining and Energy - - -

PN15

MR CRAWFORD: I think he knows the name.

PN16

THE DEPUTY PRESIDENT: Incorporating the Clothing and Textile and Footwear union but (indistinct) remain unknown. Yes, very well - Mr Lyons, have you had the opportunity to discuss your organisation's application with any of the interested parties?

PN17

MR LYONS: Yes, Deputy President. For probably the last nine months we've had discussions with the national office of the Australian Workers' Union over a series of variations we were going to seek. We couldn't get agreement on those matters and - but the Association - I'll just call it TMAA - decided to move forward with their application. Since making the application - - -

PN18

THE DEPUTY PRESIDENT: Mr Lyons, sorry to interrupt you. Just correct me if I'm wrong but my recollection of the potted history of this matter was that there was initially an application for a separate award covering employees and employers in what you describe as the traffic management industry?

PN19

MR LYONS: That's correct. Obviously I didn't have carriage of that application.

PN20

THE DEPUTY PRESIDENT: I made some directions following some conferences which were initially I think conducted by Senior Deputy President Watson. When the Senior Deputy President retired from the Commission I took over carriage of the application and following one conference, perhaps two, I made some directions for dealing with that application and the application was then subsequently discontinued. So the discussions to which you have averted occurred after the discontinuance, did they?

PN21

MR LYONS: That's correct, Deputy President. You'll just have to excuse - on the screen it's very, very small so I am relying rather than on site, on your voice so I'm sorry if I butt in. I apologise in advance because I can't see your body language or see your mouth. It's that small. But, look - - -

PN22

THE DEPUTY PRESIDENT: I'll take that as a compliment. I've been accused of having a big one.

PN23

MR LYONS: Yes, look, you're correct in your assumptions because the Association came to the view that the application was fatal in a range of issues that they couldn't reach any agreement with any of the other interested parties. There was even some jurisdictional - for want of a better word - argument, that the Fair Work Act really wouldn't let you make a new award for something that is already covered by awards. So the decision was made by the Association to withdraw those - that application. The discussions we've had with the AWU post that termination of that application have also had some discussions with the Master Builders yesterday for a very short period of time - half an hour discussion with their national office.

PN24

I've had some discussions with - and I'm going to have to call it ABL, because that's how I remember it - Australian Business Lawyers, from Brisbane, some preliminary discussions. But that in total is the discussions that we've had. But, Deputy President, I'm just wondering if we should go to the matter of standing because obviously this organisation needs to make sure that they have standing to make the application and the objectors have standing to make any objections.

PN25

THE DEPUTY PRESIDENT: I'm not sure that anyone - - -

PN26

MR LYONS: Because I hold the view that CFMEU should not be here.

PN27

THE DEPUTY PRESIDENT: Well, I don't think any parties indicated their position yet, but we can deal with that in due course. But what is it that you - why is it that you say the CFMMEU can't be here?

PN28

MR LYONS: Deputy President, the application only applies to the civil construction industry. It only applies to traffic management and my reasonable knowledge of the rules, the CFMEU - although they will say have broad rules - I suggest and so do many other learned people - not me, I'm not learned, but other people who are more learned than me - believe that the CFMEU do not have coverage in the civil construction industry of traffic control, in or around traffic control.

PN29

That is not disputing that they have the ability on building - I guess, building construction. But this is only an application that only applies to civil construction. That is what I would say that they would struggle to have any members who they have the ability to enrol or their right to represent their industrial interests. I think it's under rule 2 or 1 - I'm not sure. I'm sure Stuart will tell me.

PN30

THE DEPUTY PRESIDENT: Yes, all right. Well, it's not a matter I don't think we need to deal with today. I'm certainly not going to turn the questions of standing in a conference without the benefit of full argument or a proper review of the eligibility rules of the union. But in any event, that is a matter that you have foreshadowed. Mr Maxwell, no doubt, will take that on board.

PN31

Beyond that, I might just get an indication from the other parties who have entered an appearance today as to their attitude to the application and perhaps I might begin with the parties represented in Brisbane. Ms Zhou?

PN32

MS ZHOU: Yes, Deputy President, we're here - why I'm here is just as an interested party for the Australian Business Industrial and New South Wales Business Chamber. We reserve our position. We're really just here trying to find out more particulars in regard to the application. It's fell from the TMAA.

PN33

THE DEPUTY PRESIDENT: All right. Ms Regan.

PN34

MS REGAN: Your Honour, broadly we have some concerns about how the proposed changes might affect those in the general building and construction sector, particularly those that are required to carry out incidental traffic management work as well as those who do not engage in the separate services of traffic management companies. Similar to Ms Zhou at this early stage we're yet to form a view on the matter. We'd like to continue to monitor the proceedings as they unfold.

PN35

THE DEPUTY PRESIDENT: All right. Ms Sostarko, MBA's position?

PN36

MS SOSTARKO: Thank you. Yes, I think the parties in Brisbane essentially reflect our thoughts initially in this matter. As Mr Lyons mentioned, we did speak briefly about this yesterday and our position would be that we would need further and better particulars to be able to formulate a response. I have some suggestions that perhaps once the parties have each put forward their views that we could perhaps, in terms of an approach, whether that's appropriate for me to do that now but that said, I think that it should also be mentioned that obviously the four-yearly review process is still underway. We've yet to have a decision handed down in terms of the award-specific review, which I think has a bearing on these proceedings as well.

PN37

But that said, I would have thought that in the first instance if the applicant is able to provide more information so that we have some time to perhaps informally confer amongst the parties, that then we could also get - I guess, confer with our relevant memberships as well and then perhaps report back for a further conference. But that is our broad position at this point in time.

PN38

THE DEPUTY PRESIDENT: And by further particulars, Ms Sostarko, what did you have in mind?

PN39

MS SOSTARKO: Well, I think that the - and this is something that we did mention to the TMAA - that the application is fairly brief. There are potentially some jurisdictional issues that might need to be addressed in terms of the fact that this application wasn't brought as part of the four-yearly review process. But that said - and in order for I suppose that test to be met for this to be heard outside of that process - I think that there are - there's a necessity for perhaps a bit more information in terms of why the application is necessary at this time.

PN40

THE DEPUTY PRESIDENT: Yes, all right. All right, thank you. Ms Paul.

PN41

MS PAUL: Your Honour, our group's position is that we would object to the application being made. We have no issues on the basis of trying to attend any conference if your Honour feels that is necessary. Our view is very much that case that there is very little evidence provided to support oppositions that have been raised in the application. We have some concern that - and again, this may be an issue as Ms Sostarko has already mentioned - that the applicant may need to provide more information and more evidence in terms of supporting that. But we would go so far as to say this preliminary view is that we would certainly object to it. We also have some concern that based - - -

PN42

THE DEPUTY PRESIDENT: You object to it on - as a matter of principle or object to it as you say it should properly have been dealt with inside the four-yearly review process?

PN43

MS PAUL: So we have a broad objection to it. We represent a number of traffic management companies. We've had (indistinct) to us their very great concern with the application and so from our basis - and we do not support some of the statements that are made in here so we would also like some further information about exactly which employers in the industry who's been purported to actually support the application which does to some extent increase costs to employers and also obviously in terms of more particular detail of how they see this working in the sector.

PN44

THE DEPUTY PRESIDENT: Yes, all right. Mr Spence.

PN45

MR SPENCE: Thank you, your Honour. The CCF objects on a jurisdictional basis and I think I can say we've basically formed a view that we would object on a substantive basis as well, were the application to go forward. As Ms Sostarko says, from the EBA, that may be something that the TMA can cure with further and better particulars. The CCF says at this stage and I'm having reference here to the Fair Work decision 1788 of 2014 of the full bench.

PN46

We say this application as it currently is before the Commission does not meet section 157 of the Fair Work Act in that it - the full bench of the Fair Work Commission in that decision I just referred to and I'm happy to go into further detail. It's probably a bit pre-emptive for me to go right into this now, your Honour, but I will say at an outset that it is the CCF's position that the TMAA have not displayed the relevant necessity to make a change outside of the four-yearly review.

PN47

The case of Shop and Distributive Allied v NRA 2, Tracey J, spelt out the considerations. In fact, the conditional objective that must be in place for the Fair Work Commission to exercise its power in section 157 and if pressed CCF will object on that jurisdictional basis. Further, I would echo my friend from the Australian Industry Group's submissions. CCF represents has members in the traffic management industry. We have concerns about the application that is currently worded. We don't think it will be cost-neutral. Some employers - we think it could have a cost detriment to some employers if it were to go forward in its current state. Of course none of this precludes us taking part in a conference. We're happy to do so as the Commission directs. Unless I can be of further assistance, your Honour, that's our position. Definitely we object on the jurisdictional basis. I can outline prima facie - I think I can put it strongest as a prima facie objection on a substantive basis.

PN48

THE DEPUTY PRESIDENT: Yes, very well, thank you, Mr Spence. Mr Crawford, you'll be pleased to hear that demarcation disputes aren't confined to your side of the table.

PN49

MR CRAWFORD: Look, if I go to that issue first, your Honour, the AWU certainly in these proceedings wouldn't be making any concession about the CFMEU - I'll still call them that - about their coverage of traffic control in the civic construction industry. But we don't think these proceedings are an appropriate forum for a debate about coverage. I mean, a lot of time, resources and money have been spent over the years on those type of issues. I mean, this is a case about what should be in the award.

PN50

We would say even if the coverage argument succeeded, much like the HIA, the CFMEU could probably argue an indirect interest in that if the provisions in the civil sector are changed, then that could lead to issues arising about the building sector. So we certainly make no concession about coverage but we don't have an appetite for that type of debate in these proceedings. In terms of the application, it is strongly opposed by the AWU.

PN51

We consider it would result in a reduction to current conditions of employment and the AWU will not be supporting any application if we consider it will result in reduction to conditions of employment, particularly in this industry whereby the AWU considers the current conditions are problematic and inferior already. We think we would be opposing the claim both on a merit level because these provisions are longstanding, that the shift work provisions for the civil construction sector are almost identical to those that appear in the pre-modern AWU civil construction award in that those provisions applied at least since 2002.

PN52

So these are extremely longstanding provisions that should not be varied lightly and on a merit level, we think it's entirely appropriate that people working shift work in circumstances whereby the type of shift is not - sorry, continued for five successive shifts they should receive higher rates. So we think the conditions are entirely justifiable. They're longstanding. They shouldn't be varied lightly. In our view the case presented thus far by the TMAA would not get anywhere near satisfying the necessity test that would be required for the current provisions to be varied. We also would reserve the right and it's highly likely we would also raise jurisdictional and technical arguments about whether the application should proceed, given the current four-yearly review is not concluded.

PN53

I won't delve into that in a lot of detail today. But fundamentally the AWU opposes the application on a merits and technical level and unless I can assist further that's all I wanted to say.

PN54

THE DEPUTY PRESIDENT: Yes, thank you, Mr Crawford. Mr Maxwell.

PN55

MR MAXWELL: Thank you, Deputy President. I'll be fairly brief. The - - -

PN56

THE DEPUTY PRESIDENT: Most unlike you, Mr Maxwell.

PN57

MR MAXWELL: The CFMMEU opposes the application both on the grounds of merit and jurisdictional grounds.

PN58

THE DEPUTY PRESIDENT: Yes, all right. Can I summarise - attempt to summarise, putting aside the - I don't mean this in a derogatory sense - but putting aside the non-committal positions of some employers, the other interested parties' concerns - if I could put them in three groupings, first, the question of whether this application should proceed at all until such time as the full bench has delivered its decision in the four-yearly review in relation to this award. That is the first point.

PN59

The second point concerns the question of satisfaction of the prerequisites for the exercise of power, that is a necessity. The third is assuming that argument can be overcome, or satisfaction of those things can be made out, there is a concern about the merits of the provision in any event from the employers' point of view because it made some instances at cost. From the unions' point of view in some instances it may reduce entitlements. Is that a fair summary of the matters?

PN60

MR LYONS: Yes, your Honour.

PN61

MS ZHOU: Yes.

PN62

THE DEPUTY PRESIDENT: All right, well, Mr Lyons, the - noting also that you wanted to press an argument about the CFMEU's capacity to proceed, it seems to me - and I put this up front - given the history of this matter and related matters, I wouldn't place a lot of optimism in the parties being able to reach a consensus in this application through further conferences or discussions.

PN63

But it might assist if the TMA is able to prepare a paper - I won't call it a submission - which will specifically address the three areas of concern that the employer and union-interested parties have raised and circulate that and following the circulation of that document we might convene a further conference out of which one or more of the areas of dispute might fall away. But if they don't, then it seems to me that the matter will need to be progressed by appropriate directions so that proper arguments and an evidentiary case can be put on to deal with those matters.

PN64

It might be that the first question about proceeding before the full bench delivers its decision in relation to the four-yearly review, might be resolved by the time we - I'm not making any promises but might be resolved by the time we come to deal with this matter again in conference. Again, without promising anything, I would anticipate that there would be a decision in that matter within the next four to six weeks.

PN65

MR LYONS: Deputy President, one of the reasons that the application is, for want of a better word, scant and lacks details is because the TMAA from experience knows that there will be a range of employers and unions lining up to object. Obviously this was an attempt - and I find the conundrum where I have the AIG saying that it's going to cost employers more money and the unions saying it's going to reduce employees' entitlements and wages, so - - -

PN66

THE DEPUTY PRESIDENT: Presumably that's what happens when you pick a number in the middle.

PN67

MR LYONS: Yes, obviously, so can I apologise for the other parties if the application is not that thorough because we knew that it wouldn't matter if we wrote, "War and Peace." There would still be objections from different parties. I'm happy to drop the objection to the CFMMEU because it just complicates things. But, Deputy President, what I've brought the directors of TMAA - one of the directors - today is to hear the conundrum that we're in, where one group is saying we're costing them money, the other one is saying, "You're reducing our wages."

PN68

We're doing the same thing so, look, I'm not really even sure that if I then write half, "War and Peace", and present it that that's going to change some of the people in this room's associations' views on the matter. I know one or two that definitely won't' change - I think I recorded, "Strong opposed.' I understand the jurisdictional objections. I understand the test that is required and I think that we, as the Traffic Management Association of Australia, we were prepared to put the effort in to supply the evidence and make the application more evidentiary.

PN69

But we can argue - obviously the Fair Work Commission has to be satisfied that the application can happen outside the four-yearly review. It indicated that that's probably six weeks away or let's say two months, to be generous. That might be more appropriate after that time to make a more thorough application but being fully aware that organisation after organisation will be lining up to have their say and making their claims. So, look, for want of better words - and I don't want the Fair Work Commission to think we're wasting your time or the Commission's time - but clearly these matters are important to the industry. We've spent a considerable amount of money trying to get a new award, which ended up a wasted exercise and clearly, a range of people, organisations, in this room struggle to understand how this industry works and how it survives.

PN70

I suppose the onus is on the Traffic Management Association of Australia to enlighten those other participants for want of a better word in the building construction general onsite award. I've listened carefully to everything that's been said. I think we can overcome jurisdictional arguments. Whether we can dance around merit arguments is another question. I'd leave it at that, Deputy President.

PN71

THE DEPUTY PRESIDENT: Well, getting back to my initial proposition that the TMMA might prepare some form of paper which would form the basis of some further discussions, it's a matter for you. But are you in a position to provide such a paper to the parties? It may be that you may wish to weight for the full bench decision in the construction award four-yearly review and then deal with what's left. So that is one option so you don't have to potentially traverse the question of whether what you're doing is outside the four-yearly review process.

PN72

Or you can tackle that issue now. But there are at least two parties who have indicated a wait-and-see approach. Some parties have indicated some concerns. There are for my own part - putting aside any jurisdictional or merit concerns - I have on the face of the application some issues concerning definitional matters, for example: traffic management industry, for example. So those things might want or might bear some attention, which can be addressed in the context of merits.

PN73

But as I say, I'm not - given the history of this matter - I'm not optimistic that a settlement or an agreed position will be arrived at in conferences. But the preparation of a document in the nature of that which I've foreshadowed might assist you in identifying issues that you will need to address but also assist the other parties in understanding the nature of the case and the nature of any responses that they might wish to give.

PN74

MR LYONS: Deputy President, there is probably some friends in this room who don't remember this scenario but I would love to go back to the old days and say, well, that only applies to members of the Traffic Management Association of Australia. But unfortunately awards don't let us do that anymore so I could have cleaned up some of the definition things for you. I hear what you're saying, I appreciate your advice and I will seek further instructions from the Association.

PN75

THE DEPUTY PRESIDENT: In the old days you might have had other jurisdictional issues to address on whether or not the claim was within the ambit of a dispute. I wouldn't necessarily hark back to those days.

PN76

MR LYONS: Okay, I feel like I'm in Catch-22 at the moment. So, look - - -

PN77

THE DEPUTY PRESIDENT: Well, look, we can leave it this basis - - -

PN78

MR LYONS: - - - if we adjourn the matter and wait until I get further instructions from the board - - -

PN79

THE DEPUTY PRESIDENT: Yes, perhaps I might - I'll simply adjourn this conference. I won't take any further step in relation to the application other than putting the transcript of the conference on the web page. I'll leave it to you, Mr Lyons, to consult your membership and then advise the Commission and the other interested parties as to what it is that your organisation proposes as the next steps, all right?

PN80

MR LYONS: Thank you, Deputy President.

PN81

THE DEPUTY PRESIDENT: But I'm not going to leave it sit in abeyance in perpetuity so you'll need to take some steps within the next, say, two months.

PN82

MR LYONS: Deputy President - that was what I was going to suggest, that within the four-yearly review being completed that we would have, if we intended to continue the application, that we would have something before you within two weeks of that or 21 days. Is that stretching it too far?

PN83

THE DEPUTY PRESIDENT: All right, well, if you can advise your organisation's position within 21 days of the date of the publication of the full bench's decision in the four-yearly review of this award, thank you.

PN84

MR CRAWFORD: Your Honour, might I just make the point, whilst we all live in hope isn't it possible that the decision you're referring to wouldn't necessarily constitute the end of the - - -

PN85

THE DEPUTY PRESIDENT: Well, it may not.

PN86

MR CRAWFORD: - - - plain language issues and - - -

PN87

THE DEPUTY PRESIDENT: Yes, there are other outstanding issues which touch upon all awards.

PN88

MR CRAWFORD: Yes.

PN89

THE DEPUTY PRESIDENT: There is also the prospect, given that there's no legislative reform, that we are supposed to start another round of four-yearly reviews now, in which case this application might attach to the next round. But in any event, that's so - there are some outstanding issues. But it might at least inform this application. All right, within 21 days of the publication of that decision, if you can advise your organisation's position on the matter. Thank you to all the parties for their attendance and contribution this morning. We'll otherwise adjourn on that basis, thank you.

ADJOURNED INDEFINITELY [10.41 AM]