TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 27949-1

COMMISSIONER HARRISON

AM2010/104

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

Application by Construction, Forestry, Mining and Energy Union
(AM2010/104)
Timber Industry Award 2010

(ODN AM2008/58)
[MA000071 Print PR988930]]




Sydney

2.02PM, TUESDAY, 21 SEPTEMBER 2010

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE COMMISSIONER: If I could take appearances starting in Melbourne.

PN2

MS R READ: If it pleases the Tribunal, I appear for the Construction, Forestry, Mining and Energy Union.

PN3

MS E WATT: If it pleases the Tribunal, I appear on behalf of the Timber Merchants Association of Victoria, Furnishing Industry Association of Australia, Victoria and Tasmania and the Cabinet Makers Association.

PN4

THE COMMISSIONER: Could I ask in Melbourne if you could be a bit soft with your paperwork on the table. It really resonates loudly through the speaker system.

PN5

MS WATT: Of course, sir.

PN6

THE COMMISSIONER: Thank you. In Sydney?

PN7

MR M BURNS: Commissioner, I appear for the Transport Workers Union. With me I have MR O PASE, P-A-S-E.

PN8

MS J WILLIAMS: I appear for the Timber Trade Industrial Association.

PN9

THE COMMISSIONER: Ms Read, this is your application.

PN10

MS READ: Commissioner, the union has filed submissions and submissions in reply in relation to this matter and I take it that the Tribunal will be familiar with the issues raised in those submissions. However, there are some matters we would seek to emphasise arising out of those submissions for the purpose of today's proceedings.

PN11

THE COMMISSIONER: Thank you.

PN12

MS READ: I might start Commissioner with our application to vary the award to include indicative tasks for truck drivers engaged in log transport in the harvesting sector of the timber industry, and those variations are requested at items 4 to 7 of our amended draft order which was the most recently filed version, Commissioner. We say that those variations are necessary to address omissions in the drafting which occurred during the stage 3 process of the award variation. Those erroneous omissions meant that the log truck drivers didn't feature in the draft orders which were filed by the union in the stage 3 process.

PN13

Consequently, we say that the award has scope which would cover log truck drivers in that 4.2(a) of the award includes the work of operating any machine or vehicle in connection with transporting timber. I am paraphrasing the clause there, sir. However, there are no classifications in the classification structure of the award for persons performing that work. We have proposed a number of variations to the award which would reflect what we say are appropriate descriptors of the work of a log truck driver performing the work of operating a vehicle in the transportation of timber.

PN14

We say this is consistent with the previous practice in terms of regulation of the industry. The Timber and Allied Industries Award and a number of other timber industry NAPSAs capture the work of log truck drivers by use of an imported classification mechanism. In the Timber and Allied Industries Award that was set out in clause 2.5 of the award. Clause 22.5 had the effect that the rates of pay for various types of work were rates of pay derived from the classification structure in the Transport Workers Mixed Industries Award but in all other respects employees were so classified were entitled to the conditions set out in the Timber and Allied Industries Award.

PN15

Consistent with that the transport industry awards generally included exclusions of the work of hauling timer in the timber industry, and you will note that in our written submissions we have identified a range of transport industry awards which contain exclusions in varying forms. Those awards included the Transport Workers Mixed Industries Award 2002, the Transport Industry Retail State Award, with is a New South Wales award, the Transport Mixed Industries Interim State Award, also a New South Wales award, and the Transport Industry State Award, which expressly excluded the work of employees within the scope of the saw millers et cetera state award.

PN16

In Western Australia the Transport Workers General Award, Number 10 of 1996, states that it did not apply to employees engaged in the timber industry within the Southwest Land Division of Western Australia. In Queensland the Transport and Distribution and Courier Industry Award, North of Mackay Division, excluded teamsters engaged in hauling timber and also in Queensland the Transport and Distribution and Courier Industry Award Southern Division Award 2003, stated that it did not apply to teamsters engaged in hauling log timber from forest to mill railways.

PN17

From that Commissioner, we say it is clear that generally transport industry awards did not cover log truck drivers engaged in log transport in the timber industry. In part this was because of the distinct nature of work performed by those drivers and an industry specific pattern of regulation which had developed in the past. In addition we say that reflects the integration of this work within the timber industry supply chain which is the model which we proposed for regulation of this industry as you will recall Commissioner, in stage 3, that the award should reflect the full (indistinct) of the timber industry supply chain.

PN18

In addition we would say that we are concerned that transport industry awards are not appropriate to cover the type of work that this variation deals with and we note in that respect that a number of the submissions of the contractors and some of the associations provide examples of industry specific tasks which a log truck driver is expected to perform in addition to driving the truck. We note that truck drivers are expected to be competent and able to operate a chainsaw. There are expected to have qualifications in the forest and forest products industry skills package, among other things.

PN19

Finally, in addition Commissioner we would submit that the variations we have sought are consistent with the position the Tribunal has taken in relation to the other imported classifications which were formerly contained in the Timber and Allied Industries Award. Those classifications where they maintained their relevance to the industry have been captured in the modern award in a similar matter to the proposal that we put before the Tribunal in relation to log truck drivers. We say that the variations we have sought are necessary to give effect to the modern award's objectives. In particular we have identified section 134(1)(d) which is, "Objectives of modern awards must promote flexible modern work practices and the effective, efficient and productive performance of work".

PN20

In relation to that we draw the Tribunal's attention to the piece rate provisions of the modern Timber Industry Award which allows for the efficient regulation of the work of the log truck drivers. We note that a large number of the submissions by contractors and the industry associations refer to the use of piece rate provisions. We say that the form that the piece rate provisions in the Timber Industry Award takes is particularly adapted to the way that this work is regulated in the industry. Piece rates for log truck drivers are normally calculated as a percentage of the total truck profit, and generally that is somewhere around 20 to 22 per cent. Whereas piece rates, although they are present in the transport industry awards are normally calculated by per kilometre rates.

PN21

The current mechanism of regulation as the percentage of truck profit is possible under the timber industry award because of the way the piece rate clause is structured, whereas it wouldn't possible under the Transport Industry Award. We have also said Commissioner that our variation is necessary to address the modern award objectives set out at section 134(1)(g) of the Act, which is avoiding the overlap of modern awards. If the variation we have sought is not granted then a harvesting and haulage contractor who employs both harvesting workers and log truck drivers in the haulage sector would be obliged to apply the Timber Industry Award and the relevant Transport Industry Award which would mean that there would be some overlap there.

PN22

We also think that that is probably not consistent with reducing the regulatory burden on business, particularly for these types of businesses, Commissioner, who are often small to medium enterprises and not well equipped to apply multiple awards. We draw your attention to the fact that this aspect of our submission has been supported by a range of different industry parties, including the Forest Contractors Association of Victoria, the Timber Trade Industrial Association, although I'm sure Ms Williams will make her own submissions today, and a range of New South Wales logging contractors.

PN23

Finally, in relation to this particular issue, Commissioner, we note that since we filed our application we have engaged in consultation with the Transport Workers Union in relation to an appropriate exclusion to avoid the risk of confusion as to which award is the appropriate vis a vis the Timber Industry Award and the Transport Industry Award and we don't object to the exclusions which the Transport Workers Union have proposed and so our amended draft order reflects the exclusions that the Transport Workers Union have sought to be included, although I also note that the Transport Workers Union are present in Sydney and they may have something to say in relation to that.

PN24

Commissioner, I will next turn to the issue of jury service, the issue of supplementing the NES in relation to jury service top-up pay. That is reflected at Item 1 of our amended draft order. It is not an issue which featured in any of our submissions during stage 3 of the award modernisation process, but it is an issue which has come to light from the union in the review of the award and our review of the other awards which relate to the industry since then. Our submission Commissioner is that unless the NES is supplemented in the way that we have sought the timber industry safety net will not be fair and equitable as is required by section 134 of the Act, and we say that consideration of the existing industry standard prior to modernisation is necessary to identify what is relevant and what is fair in relation to a particular modern award.

PN25

We have also submitted Commissioner that the issue of fairness as between awards is (indistinct) in this particular circumstance and that is because of the relationship between the Timber Industry Award, the Manufacturing and Associated Industries and Occupations Award and the Joinery and Building Trades Award. Those three awards are successes to a greater or lesser extent to the Furnishing Industry National Award 2003. All three awards incorporate scope derived from the Furnishing Industry National Award 2003. However, an employee who was a grazier who was formerly covered by the Furnishing Industry National Award 2003 and who is now covered by the Joinery and Building Trades Award 2010 would be entitled to jury service top-up pay.

PN26

An employee who was engaged in the manufacturing of mattresses who was formerly covered by the Furnishing Industry National Award 2003 who is now covered by the Manufacturing Award 2010 would be entitled to jury service leave top-up pay. However and employee, a cabinetmaker for example, a person engaged in the manufacture of wood and timber furniture whose work is now covered by the Timber Industry Award 2010 is not entitled to jury service leave top-up pay. We say that this outcome is anomalous and inequitable and it is not and outcome which is consistent with the award modernisation request of fairness and relevance.

PN27

We note that this issue of jury service leave top-up pay has been considered by a Full Bench in relation to the Local Government Industry Award and that the Full Bench indicated that there was a necessity for special circumstances before the top-up pay provision could be included in a modern award. Although, in relation to that and having examined the record in relation to the Joining and Building Trades Award and the Manufacturing Industry Award and made inquiries of the officials of the union who were involved in those proceedings, we are not able to identify what the special circumstances were in relation to the joinery award or the manufacturing award.

PN28

We do say that as those awards have the provision a special circumstances does arise now in relation to the Timber Industry Award because of the inequitable outcome for workers who had formerly identical entitlements who now, as a result of the award modernisation process, have been split between three awards and will have different entitlements depending on that result. We note Commissioner that of the submissions filed in this matter only two of those I think, or at the time I read the submission I think two of those referred to this aspect of the application and those were the Timber Merchants Association and the Timber Trade Industrial Association, and neither the Timber Merchants Association or the Timber Trade Industrial Association objected to this part of the application.

PN29

I now turn to our application in relation to supplementing the NES in relation to various aspects of the public holiday provisions of the award. That application is reflected at Item 2 of our draft order. Commissioner, in this part of the application we are seeking to supplement the NES in relation to public holidays in order to maintain appropriate provisions in relation to the work of part time employees and fulltime employees who are working non-standard hours, and also to make arrangements for public holiday substitution when Christmas Day, Boxing Day and New Years Day or Australia Day fall on weekends.

PN30

In relation to the public holiday substitution we say to some extent it is incidental to the first application which is in relation to part time and fulltime employees and is necessarily concomitant of those terms. We say that the application that we have made in relation to this issue is necessary to give effect to the modern award objectives set out in section 134(1)(g) of the Act, that modern awards be simple. It is also necessary to resolve the potential for an ambiguous and inconsistent interpretation of the award which arises in the current form of the award.

PN31

We also note that the transitional provisions have thus far delayed the effect of the ambiguity which we will identify later in terms in that the public holidays which have happened in the first part of this year were protected by the transitional provisions in that people didn't suffer any loss of pay as a result of the transitional provisions. However, having passed the 1 July commencement date public holidays which happened in the latter part of this year, if the ambiguity we have identified isn't resolved it will start to take effect.

PN32

We say Commissioner that the provisions we are seeking are necessary to avoid ambiguous to interpretation of clause 36.3 of the Timber Industry Award. Clause 36.3 provides the rules which address the interaction of a rostered day off on a public holiday. Basically, dealing with a situation when an employee is on a rostered day off which falls on the say day as a public holiday and providing various options at the discretion of the employer to either pay the employee additional pay or an additional days leave or to give them a substitute day.

PN33

Previously that provision was part of a set of three clauses in the Timber and Allied Industries Award which were made up of clauses 42.5 of the Timber and Allied Industries Award which is the rostered day off clause (indistinct). Clause 42.7 dealt with fulltime employees working non-standard hours, for example, a 4-day week made up of four 10-hour shifts, or similar patterns of work, and clause 42.8 which dealt with non-casual part time employees and as is self evident are employees who may or may not be working on a particular day if it is a public holiday.

PN34

We say that as a group these three clauses address the treatment of public holidays for employees working non-standard hours, whereas now only employees on rostered days off are addressed by the modern award. Essentially our application in relation to this part of the variation is to reinstate the two other parts of the original three part set. I think this is important because we are aware of some employers who in the first part of this year, in looking at the award provisions, notwithstanding the fact that the transitional provisions were in operation, employers were looking at the award trying to work out what would be the situation under the award and some employers said well, there is that rostered day off clause, if you're not rostered to work on Friday because you are never rostered to work on Fridays because you work a 4-day week then we'll treat it as if the rostered day off clause applies even though previously that situation would have actually been dealt with by clause 42.7 of the Timber and Allied Industries Award and not clause 42.5, the rostered day off clause.

PN35

Employers took that view because they wanted to continue to be able to provide a similar set of alternative and substitute days for employees in relation to that public holiday. Theoretically we can see that it is possible to interpret the award in this way but it is not the ordinary sense of what a rostered day is in that a rostered day off is a day which accrues as a result of working additional hours on the rest of your ordinary days and so we would be reluctant to stretch the meaning, or to be engaged in a process of award interpretation which would result in stretching the meaning of a rostered day off in that way, particularly when there were existing very clear provisions which the industry is familiar with which dealt with the issue, and which we say could be validly inserted into the award and which should be inserted into the award to give effect to the award modernisation request.

PN36

In particular sir, we note that although there are some employers who take that interpretive position in relation to the rostered day off there are other employers who probably take a more orthodox position in relation to what a rostered day off is who say that for all of those other employees working non-standard hours are no longer entitled to those substitution provisions. Our strong submission is that these variations sought are necessary to avoid an undesirable and inconsistent interpretation of the award across the industry and in that respect we say there is no valid or principal reason why the Tribunal should distinguish between regulating the interaction between rostered days off and public holidays and the interaction between public holidays and other non-standard patterns of work, or at least there is none that have been put to us.

PN37

We say that non-standard patterns of work are common throughout the industry and so in terms of the question of the relevance of the award to the industry which the Tribunal is required to consider in giving effect to the modern award's objectives, the award should take into account those patterns of work when dealing with public holidays and supplementing the National Employment Standard. Once again, in relation to the submissions filed in relation to this matter we say that to date no person has objected to the inclusion of the variations that the union has sought.

PN38

The final matter which was the subject of our application Commissioner was the payment of excess accrued personal leave. This part of our application was the subject of submission during our stage 3 submissions, however, despite that it is not included in the award, although we note that there is not an express statement in any of the stage 3 decisions about this issue. There is no statement of policy against the inclusion of a provision allowing for a payout of excess accrued personal leave, and there is nothing in any of the decisions about the Timber Industry Award issued by the Full Bench during stage 3.

PN39

We have noted Commissioner that the Full Bench during stage 3 did include a provision allowing for payment for excess accrued personal leave in the Stevedoring Industry Award and consequently we would ask the Tribunal to review the position that has arisen in relation to the Timber Industry Award on the basis of the widespread application of payout of personal leave provisions in not only the Timber and Allied Industries Award but in other awards which are not superseded by the Timber Industry Award.

PN40

We say particularly that the weight of regulation in the awards that the Timber and Allied Industries Award supersedes is indicative that it is appropriate to include a provision of the kind we have sought in the modern award. We know that there is an issue about perhaps the enforceability of a payout of personal leave provisions in the federal awards having regard to the interaction of those provisions and the Australian Pay and Classification Scale during the WorkChoices period. We would say that the transitional award and the NAPSAs, those provisions remained an enforceable provision.

PN41

In a sense the Tribunal could include a provision of the kind we have sought on the basis of that rate of regulation argument in a similar way to the manner in which the Tribunal decided to include dispute resolution training leave in modern awards where it had previously been a feature of the regulation of those industries notwithstanding that that provision was non-allowable during the WorkChoices period. As I have said Commissioner, we say that payout of personal leave is extremely relevant to the industries covered by the Timber Industry Award, and so to that extent we say that it is necessary to give effect to the modern award objectives that are generally providing a fair and relevant safety net of terms and conditions.

PN42

The industry award which doesn't include a term which is of such broad relevance to the predecessor is of doubtful relevance to the industry which it purports to cover in that it doesn't take into account the existing custom and practice. It is our view Commissioner that under the predecessors to the Timber Industry Award which did include payout of personal leave, personal leave was not merely a contingent entitlement which a worker was entitled to if they happen to get sick, it was an entitlement which would also crystallise when they met other minimum criteria which meant that the worker was entitled to be paid the value of that entitlement.

PN43

We say that it is a valuable entitlement which employees have lost as a result of the award modernisation process and it is an entitlement for which there is no remedy for the loss of in that it is not amenable to the issue of the take home pay order. We say that the value of this entitlement to many employees has been substantial where they traditionally had the capacity to have that leave paid out on an annual basis it might be in the vicinity of a week's pay in for example, or in the furnishing industry or in the timber industry, closer to 2 week's pay, and in the pulp and paper industry this entitlement was payable traditionally on termination of employment and it could be, as you can imagine, quite a substantial benefit.

PN44

The evidence that the industry has given us is that the practice discourages absenteeism which is of benefit to employers but it is also an incentive to employees. Commissioner, we are aware of anecdotal evidence which would suggest that the absence of award provisions of the kind that we are seeking by this variation actually increases the level of award breach among small businesses covered award. As I said, it is a significant entitlement in the industry. It has traditionally been available in the sector and so there is a lot of pressure on both employers and employees on each other I think to continue to pay out the sick leave as they have traditionally done.

PN45

Among small businesses where the incidence of enterprise bargaining is low, we say that there is very little chance of remedying that by making an enterprise agreement, whereas the union's proposed variation will put some parameters around the practice and make sure that workers are protected, make sure that there are adequate banks of personal leave maintained and also not have the effect of encouraging that practice of award breach which we say also flows into the award modernisation objective of creating modern awards which are relevant and also represent sustainable regulation of the industries that they cover.

PN46

The other side of that coin Commissioner is that we are concerned that an award that doesn't contain a payout of personal leave provisions actually discourages collective bargaining in relation to this issue, and we note that the modern award objective requires the Tribunal to have regard to the need to encourage collective bargaining. We have had experience since the commencement of the modern award where we have lodged at least one agreement for approval which contained the clause which was perfectly consistent with the requirements of section 101 of the Act, allowing for payout of personal leave under that particular agreement.

PN47

The Member of the Tribunal who was considering that agreement decided that because the underpinning award did not contain a payout of personal leave clause it was not possible for the agreement to allow for it and pass to boot test, and the employer was obliged to give an undertaking that the payout of personal leave clause would not apply. Bearing that in mind the union occasionally encounters employers who are unwilling to bargain on the issue, and now that we have had that experience we are not able to give those employers the assurance that in fact making an agreement about this issue won't be problematic.

PN48

Obviously Commissioner, and I'm sure you would understand most of those concerns to make an agreement to pass the boot test without the need for undertakings. We say that the lack of an appropriate cashing out term in the one award is actually having a chilling effect on bargaining. In addition Commissioner, we say that it is not consistent with the modern award objective to not have a term of this kind in that the Tribunal is obliged to consider increases to employment costs and the regulatory burden of modern awards on employers.

PN49

We say that this is an industry specific assessment and that the Tribunal is obliged to consider to the employment costs and regulatory burden which applied in particular industries prior to modernisation in order to determine whether the modern award has resulted in an increase in employment costs and the regulatory burden. Obviously that then depends on the pattern of regulatory burden that is required by modernisation. We say that employers in the timber, furnishing and paper industries are subject to a greater regulatory burden and perhaps also higher employment costs as a result of the Tribunal's decision not to include this in the modern award during stage 3.

PN50

We say that payment of personal leave in the industry has previously been recognised as a provision which assists employers to reduce employment cost and reduce compliance concerns by removing the obligation to make provision for and account for extensive leave balances accrued over long periods of time. As excess accruals they would have been written off when paid to the employee. While the absence of a payout provision might not give rise to increased employment costs or higher regulatory burden in every industry, or even in industries generally, it will in the timber industry because of the previous pattern of regulation of this issue.

PN51

In relation to submissions filed by other parties Commissioner, we note that the Timber Merchants Association don't object to the variations sought by the union. We also note that the Timber Merchants Association have drawn attention to the utility of these provisions in addressing absenteeism, and on that note Commissioner, we would say that the capacity to address absenteeism indicates that a payout of personal leave provision as used by the industry as an incentive to employees and we submit that the availability of such incentives promotes the efficient and productive performance of work and we say that that is consistent with the award modernisation objective set out in section 134(1)(d) of the Act.

PN52

In addition the Timber Trade Industrial Association have indicated that they support this part of the union's application, and the Timber Trade Industrial Association drew the Tribunal's attention to the dependence of some employees on payment of untaken personal leave, particularly when that payment occurs at Christmas time. The union would submit that that is actually consistent with our experience of custom and practice in the industry and the capacity to access the value of accrued but untaken personal leave is an essential and integral part of the (indistinct) of terms and conditions which applied prior to award modernisation in this industry.

PN53

Conditions of award covered employees who are among the lowest paid and most vulnerable and are least able to absorb the disadvantages which arise from award modernisation should be at the forefront of the Tribunal's mind and we not in fact that the Act requires the Tribunal to consider and take into account the needs of the low paid. Taking onboard the submission made by the Timber Trade Industrial Association, we would submit that it is clear that a provision of this kind is relevant to the obligations set out in the award modernisation objective. We would also say that the consideration of the needs of the low paid is an industry specific assessment and that assessment has to be taken in light of the particular needs and history of regulation in the industry to which the modern award applies.

PN54

Finally, in relation to this particular aspect of our application Commissioner, I draw the Tribunal's attention to the legislative history of the provisions of section 101 of the Act, and to the capacity to supplement the NES in relation to payout of personal leave. We note that the exposure draft of the National Employment Standard which the government released in early 2008 did not include capacity for modern awards or for enterprise agreements to make arrangements for payout of personal leave.

PN55

At that time the government sought submissions in relation to the content of the future National Employment Standard and the union and a range of other industry representatives and the ACTU at the request of the union made submissions that as part of the NES consultation process that the NES should in fact allow modern awards to have payout of personal leave provisions in them within certain appropriate parameters. Although we are prepared to concede there may have been other factors which motivated the government to include payout of personal leave, permission to have payout of personal leave in the NES, we do submit that our submissions which were focussed on the need to maintain these provisions in the timber, furnishing and paper industries must have been part of the motivating force for what is now included in section 101 of the Act in relation to enterprise agreements and in relation to modern awards.

PN56

We would submit that it is a relevant factor which the Tribunal should consider in terms of the legislative history of this provision, and we say that it is directly related to the Timber Industry Award although not expressed to be so in the legislation. Commissioner, those are our submissions in relation to specific aspects of our application. We note that the Full Bench have stated in relation to some other variations applications that is not appropriate to vary modern awards so soon after they have been made. We say that in each case we have shown that there are relevant factors which would indicate that that should not be determinative in the present situation. We say that apart from the issue of payout of personal leave none of the variations we are seeking were the subject of substantive consideration during the stage 3 process. In relation to the payout of personal leave we say that there are factors which means that it is appropriate to reconsider it at this time.

PN57

In any event Commissioner, we submit that each of the variations we have sought is meritorious in its own right and also necessary to give effect to the modern award objectives in the way that we have identified in our written submissions and in our submissions today. We also note Commissioner that there are a number of areas in which the variations we have sought would address ambiguities or uncertainties in the modern award and that the Tribunal has the power under section 160 to correct those ambiguities or uncertainties. For those reasons we would commend the variations being sought to the Tribunal. We note that we filed a number of draft orders, but the draft order which we filed with our submission on 3 September is the most current of the variations filed. May it please the Tribunal.

PN58

THE COMMISSIONER: Thank you Ms Read. Mr Burns.

PN59

MR BURNS: Just shortly Commissioner, the Transport Workers Union doesn't object to the variation. Our only requirement in relation to this, and is a similar position to the Australian Road Transport Industry Organisation position is that the variation must include exclusions from the Road Transport and Distribution Award and also the Road Transport Long Distance Operations Award. That is really all I have to say on that but if the variation was to be allowed without those particular objections I would like to say something further on that.

PN60

THE COMMISSIONER: Ms Read, I think you have indicated your position.

PN61

MS READ: Yes, Commissioner. Our most recent draft order in fact includes the exclusions that Mr Burns is referring to.

PN62

MR BURNS: I'm not talking about the Construction, Forestry, Mining and Energy Union's position, I'm talking about Fair Work Australia's position of allowing it or not, so if Fair Work Australia was inclined to allow the variation we would insist on those exclusions being in there.

PN63

THE COMMISSIONER: Yes, I am inclined to grant the application of the variations sought for log haulage sector, yes.

PN64

MR BURNS: Including those exclusions?

PN65

THE COMMISSIONER: The exclusions you refer to go beyond this award though don't they? You are talking about the long distance - - -

PN66

MR BURNS: It is just to ensure that the truck drivers, once they get logs on their truck and go, can go anywhere. Depending on how far they drive they might flick into the long distance operations award, it is for security purposes of maintaining our coverage similar to the Construction, Forestry, Mining and Energy Union wanting to draw a line between our award and their coverage. Similarly, we are wanting to make sure that their coverage now doesn't come backwards.

PN67

THE COMMISSIONER: I'm sure that is not the intent of the Construction, Forestry, Mining and Energy Union, but the exclusion clause contained in the draft, do they satisfy you?

PN68

MR BURNS: Yes.

PN69

THE COMMISSIONER: All right.

PN70

MR BURNS: There are already two other exclusions in there. These are jus to add to the awards to be excluded. Similar with exclusions in other awards, for example, I think the Construction, Forestry, Mining and Energy Union mining industry award has similar exclusions and in some of our awards, and that has how we have gone about it rather than to enter into a gigantic debate and actually putting a fence basically between the road and the forest, or between the mill and the city so to speak. Those are all we are asking for an apart from that we have nothing further to say.

PN71

THE COMMISSIONER: Thank you Mr Burns. Ms Watt.

PN72

MS WATT: Thank you, Commissioner. The association on behalf of whom I appear today have made their written submissions and we have nothing further to add, sir.

PN73

THE COMMISSIONER: Thank you. Ms Williams.

PN74

MS WILLIAMS: Thank you, Commissioner. We also have lodged submissions in relation to this matter and if I can just very quickly address some of the issues that Ms Read has dealt with. In relation to the drivers in the harvesting sector we support her extensive submission both written and oral, and also support the submissions of the Transport Workers Union and the Australian Road Transport Industry Organisation in relation to those exclusions. In relation to jury service, the Timber Trade Industrial Association, as in our submission, neither supports nor opposes that part of Ms Read's application.

PN75

In relation to the public holidays, Ms Read is quite right, we believe that that clause could be read either way. We have taken the view that the clause does suit, however we believe that for clarity and reduction of ambiguity in this that Ms Read's submission and proposed amendments would certainly satisfy that. We don't want to be in a position where either the association and the union are in some sort of conflict at some later date over the way a clause has been written, so we certainly do support her submission there. Lastly, in relation to the sick leave payout, again we support the extensive submissions of both Ms Read, both oral and written, along with our submissions. She is quite right, this clause has caused my association a great deal of concern with the employers who have historically had to pay this out.

PN76

For many years they had been obliged to pay once the sick leave reached a certain level, who are saying to the association, well, we are just going to continue to do it, so that is encouraging award breach. The industry is used to doing it and it is certainly not with every employee and it is certainly is paid generally at Christmas which does assist those low paid workers to meet the expenses of the Christmas period, and I note that in the draft order there is an ability for an employee to apply, so it is not a mandatory thing, it is up to the employee to apply so they have some control over their sick leave, whether they take it now or they accumulate it, and we believe that that is an appropriate way of dealing with this matter. That is all I have to say, Commissioner.

PN77

THE COMMISSIONER: Thank you Ms Williams. Having had the opportunity to read the written submissions of the parties prior to today and having also heard the oral submissions in today's proceedings, I am in a position to indicate my decision in this matter now. This application is made by the Construction, Forestry, Mining and Energy Union, Forestry and Furnishing Products Division, pursuant to section 157 of the Fair Work Act on the basis that it is necessary to vary the award to give effect to the modern awards objectives as set out in section 134 of the Act.

PN78

Both written and orally the union submits that the variations sought are necessary to achieve the modern award objectives but also to address a number of aspects of the modern Timber Industry Award which were not previously addressed in the modernisation process, or alternatively which require clarification in order to ensure that the award operates as a functional and sustainable safety net in the industries it covers and in some cases to resolve ambiguity and uncertainty in the current terms of the modern award. The application seeks to vary in a number of areas. They are the indicative tasks for driving classifications in the harvesting sector.

PN79

The application seeks a new provision to supplement the NES in relation to jury service. It seeks to provide a supplement to the NES in relation to public holidays and the arrangements for payment of public holidays and it also seeks a provision to allow for payment of excess accrued personal leave. I note that the application is supported by various employer organisations as well as individual employers, the Transport Workers Union represented in today's proceedings along with the Australian Road Transport Industry Organisation also do not oppose the variation in respect of their interests subject to an exclusions clause being contained in the draft.

PN80

Overall I am satisfied that the proposed variations are necessary to give effect to the modern award objectives and I shall make a determination to vary the Timber Industry Award 2010 in the terms sought in the amended draft submitted by the Construction, Forestry, Mining and Energy Union on 3 September 2010. The operative date for the variations shall be on today's date, 21 September 2010. Is there anything further? If not, these proceedings will stand adjourned.

<ADJOURNED INDEFINITELY [2.51PM]