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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1056872
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER GREGORY
COMMISSIONER HARPER-GREENWELL
AM2016/23
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2016/23)
Building and Construction General On-site Award 2010
Melbourne
11.08 AM, MONDAY, 4 MARCH 2019
PN1
VICE PRESIDENT HATCHER: All right, I'll take the appearances starting in Melbourne. Mr Maxwell, you appear for the CFMMEU?
PN2
MR S MAXWELL: That's correct.
PN3
VICE PRESIDENT HATCHER: Mr Crawford, you appear for AWU?
PN4
MR S CRAWFORD: Yes, your Honour.
PN5
VICE PRESIDENT HATCHER: Ms Paul, you appear for AI Group?
PN6
MS V PAUL: Yes, your Honour.
PN7
VICE PRESIDENT HATCHER: Ms Sostarko, Mr McGregor you appear for Master Builders Australia?
PN8
MS R SOSTARKO: Yes, your Honour.
PN9
VICE PRESIDENT HATCHER: Ms Adler, you appear for the HIA?
PN10
MS M ADLER: Yes, your Honour, thank you.
PN11
VICE PRESIDENT HATCHER: In Sydney, Ms Ambihaipahar, you appear for the CEPU?
PN12
MS A AMBIHAIPAHAR: That's correct.
PN13
VICE PRESIDENT HATCHER: Mr Miller, you appear for the AMWU?
PN14
MR G MILLER: Yes, that's correct.
PN15
VICE PRESIDENT HATCHER: In Brisbane, we have Ms Zhoe from the New South Wales Business Chamber?
PN16
MS L ZHOE: That's correct.
PN17
VICE PRESIDENT HATCHER: Sorry, are there any other appearances in Brisbane?
PN18
MS L REGAN: Your Honour, you have Regan, initial L, for the Housing Industry Association.
PN19
MR P CRADDEN: Cradden, initial P, for the AWU.
PN20
VICE PRESIDENT HATCHER: For the AWU.
PN21
MR CRAWFORD: He's one of our witnesses, your Honour.
PN22
VICE PRESIDENT HATCHER: That's right. Mr Crawford, are we calling your witnesses first?
PN23
MR CRAWFORD: Generally, yes, your Honour. Am I sitting or standing, or?
PN24
VICE PRESIDENT HATCHER: However you prefer to be (indistinct) - stretch your legs if you like.
PN25
MR CRAWFORD: Your Honour, one initial matter. I'd like to seek permission for Mr Wakefield to give evidence over the phone. He's got a sick 3 year old daughter and that makes it for him to attend in person. I understand that course of action isn't opposed.
PN26
VICE PRESIDENT HATCHER: All right, we'll take - that's fine, we'll do that.
PN27
MR CRAWFORD: He's expecting a phone call at about 11.45 am.
PN28
VICE PRESIDENT HATCHER: Right.
PN29
MR CRAWFORD: That issue aside, I propose to call Mr Cradden in Brisbane. I think he's already in the room. I think I notice Mr Callinan is maybe in the room in Sydney so I'm not sure if the other side would like him out of the room (indistinct).
PN30
VICE PRESIDENT HATCHER: Is that an issue?
PN31
MS PAUL: That would be our preference.
PN32
MS SOSTARKO: Yes, your Honour.
PN33
VICE PRESIDENT HATCHER: All right. Well what was his name?
PN34
MR CRAWFORD: Mr Callinan and Mr Burke might also be in the room too, possibly.
PN35
VICE PRESIDENT HATCHER: All right. If there any witnesses in the hearing room in Sydney can I ask you to step outside until it's your turn to give evidence, please. All right, so we'll administer the affirmation to Mr Cradden then.
PN36
THE ASSOCIATE: Please state your full name and address.
MR CRADDEN: Paul John Cradden, (address supplied).
<PAUL JOHN CRADDEN, AFFIRMED [11.11 AM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [11.12 AM]
PN38
VICE PRESIDENT HATCHER: All right, Mr Crawford.
PN39
MR CRAWFORD: Thank you, your Honour. Mr Cradden, have you prepared a witness statement for these proceedings?‑‑‑Yes, I have.
PN40
Do you have a copy with you?‑‑‑Yes, I do.
PN41
That statement comprise 8 paragraphs?‑‑‑Yes.
PN42
Did you sign the statement on 14 November 2018?‑‑‑Yes.
PN43
I seek to tender that statement, your Honour.
*** PAUL JOHN CRADDEN XN MR CRAWFORD
VICE PRESIDENT HATCHER: All right. The statement of Paul Cradden dated 14 November 2018 will be marked exhibit, we'll call it, PC.
EXHIBIT #PC WITNESS STATEMENT OF PAUL JOHN CRADDEN DATED 14/11/2018
VICE PRESIDENT HATCHER: All right. Who'd like to cross‑examine this witness? Ms Sostarko?
CROSS-EXAMINATION BY MS SOSTARKO [11.13 AM]
PN46
MS SOSTARKO: Your Honour, thank you. Can you hear me okay, Mr Cradden?‑‑‑Yes.
PN47
Thanks. Thank you so much. I note that you have a copy of your statement and - - -?‑‑‑Yes.
PN48
- - - can I just confirm that you prepared that statement yourself?‑‑‑Yes.
PN49
Thank you, and you've noted - if I take you to that statement, you've noted at paragraph 3 that you're familiar with working conditions in the civil construction industry, is that correct?‑‑‑That's correct, yes.
PN50
The evidence you provide today relates to the proposed amendment of the Building And Construction Onsite Award. Given your position, is it correct to say that you're familiar with the onsite award?‑‑‑Very familiar, yes.
PN51
Thank you, and it would be also correct to say that the award is the safety net of minimum conditions as made by the Commission for people who perform construction work, is it?‑‑‑Yes.
PN52
You'd agree that within the award, disability allowances are usually only triggered in situations when people experience those particular disabilities, is that correct?‑‑‑Yes.
PN53
Thank you. If I could just take you to paragraph 8 of your statement if I could?‑‑‑Yes.
PN54
You'll see at the beginning of that paragraph, if you wouldn't mind just reading that first sentence for me?‑‑‑In relation to the allowances the Commission is proposing to delete, my experience has been that the AWU members regularly perform work covered by the following allowances.
*** PAUL JOHN CRADDEN XXN MS SOSTARKO
PN55
Thank you for that, and underneath those words you've gone on to list, as we can see, a number of disability allowances?‑‑‑Yes.
PN56
My question is these allowances that you've listed, aren't always paid all the time for all hours worked by employers are they?‑‑‑Yes, 99.9 per cent of the time.
PN57
Would it be right to say though that in some cases, it impossible that they would be triggered at all times and I'll give you an example, for example, it would be impossible to trigger say the hot work allowance and the cold work allowance at the same time, would you agree with that?‑‑‑Not particularly, no.
PN58
Well thank you. I guess just so your evidence is clear, at paragraph 8 of the statement, you're not suggesting, or are you suggesting, all the allowances are triggered all the time and paid for each and every hour people are at work, are you?‑‑‑As far as I'm aware they should be and would be if I'm involved in - the companies I deal with are very familiar with the allowances and there's no issues.
PN59
We'll just move on. When EBAs are made, they need to satisfy a better off overall or BOOT test. Are you aware of that test?‑‑‑Yes.
PN60
The test stops people going backwards when an EBA is made, is that true?‑‑‑Yes.
PN61
Thank you. I'm just going to take you back to paragraph 2 of your statement, if you wouldn't mind, and there you've listed a number of civil construction companies where your members work, such as Lendlease, John Holland, Fulton Hogan, Seymour Whyte, Shamrock, et cetera?‑‑‑Yes.
PN62
Those companies or those sites all use enterprise agreements don't they?‑‑‑Yes.
PN63
In those, it's common practice for - well it's common practice for EBAs on civil sites to bundle up individual disability allowances that are commonly triggered on that particular job, so they're paid either as one overall allowance, which are either called a site allowance or a productivity allowance, or in the alternative, for the most part, they're incorporated into the hourly base rate. Do you agree with that?‑‑‑Sometimes.
PN64
Would you agree that these amounts, regardless of by which method they are applied, are arrangements made in lieu of paying each individual allowance each time it happens?‑‑‑Yes, possibly, yes.
*** PAUL JOHN CRADDEN XXN MS SOSTARKO
PN65
Adopting that arrangement means that everyone working on site is compensated for common disabilities for all hours they work on site irrespective of whether or not they might actually experience a particular disabilities is that true?‑‑‑Well like you're referring to site allowance. Not every civil project would have a site allowance, just getting back to that bit. They would not always have a site allowance.
PN66
No, but it would be right to say that in most cases that's the way these arrangements are dealt with?‑‑‑Yes, you could say that, yes.
PN67
Would it be right to say that it's kind of a swings and roundabouts type arrangement where not everyone experiences every disability at all times every day but everyone gets paid extra to compensate them in case they do. Is that a fair description?‑‑‑Yes.
PN68
Thank you, and understanding that this is common practice in civil construction EBAs, in your experience would you be aware that these types of arrangements aren't limited simply to civil EBAs but they common feature in other types of construction EBAs too?‑‑‑I can't don't with it so I can't comment on that.
PN69
You'd agree that enterprise agreements which apply to companies you've listed in paragraph 2 all contain rates that are higher than the award?‑‑‑Yes. Some of them not a lot, to be honest. Just some of them just barely pass the test.
PN70
Can I then - I guess I put it to you that because of the BOOT workers covered by EBAs won't go backwards and won't be affected if there are any changes to the award, would they?‑‑‑I couldn't say 100 per cent on that to be honest.
PN71
Thank you. I'll just take you back to paragraph 7. Please bear with me for jumping around?‑‑‑It's okay.
PN72
It's right to say, isn't it, that I guess from that - in that paragraph you've mentioned that it's your view that there would be a deduction to current entitlements given the Commission's proposal, but is it right to say that the AWU hasn't taken any survey of the civil construction industry workers or commissioned any impact statement that would - about the Commission's proposed change?‑‑‑I personally haven't.
*** PAUL JOHN CRADDEN XXN MS SOSTARKO
PN73
Mr Cradden, I put it to you that your statement that the proposed allowance appears deficient compared to current conditions is really based solely on looking at the allowances and by making the assumptions of what an employee is likely to get, isn't it?‑‑‑Like I said in paragraph 7 that you're talking about it, I do believe that is - we could deal with them all in one but if we go down that road we're going to be penalising certain members who specialise in certain - like especially in tunnels, on the ground work, who are going to be down there for 10-12 hours a day. I can see them being penalised.
PN74
You mentioned tunnels, tunnel workers, on civil construction sites, would those workers be captured also by AWU agreements that your members are covered by?‑‑‑Yes.
PN75
Really it's actually - there's actually no evidence that you've provided supports the proposition that there's deficiency or that your members will likely be worse off. This is just your opinion, correct?‑‑‑I believe they will be worse off, yes, but like I said I - yes, okay.
PN76
If I could take you to paragraph 8 again and in that paragraph, as we noted earlier, there are various types of work that you've said your members regularly perform?‑‑‑Yes.
PN77
That's based on your experience?‑‑‑Yes, correct.
PN78
I guess referring to my previous question, I suppose, I take it that you've not undertaken any sort of specific analysis or study about when or how often or what type of workers would actually undertake this kind of work?‑‑‑As I said, I personally haven't but just from experience I know that's - just would be regular.
PN79
Thank you, and I guess I put it to you that you don't really know how many employees in the industry would undertake work attracting a particular type of disability and how much time they would spend on that particular kind of work any given work day or work week would you? It's impossible to say?‑‑‑Well you can't possibly comment on that because obviously in the civil industry, the nature of the industry it changes, work changes every day, especially if you're building a tunnel or motorways, it changes every single day and up to a few times a day it can change what you're doing. One minute you could be in a confined space, the next minute it could be doing whatever, yes. It changes on a daily basis.
PN80
I guess what I'm asking though is that would it be right to say that not every employee working, for example, under the award conditions would perform work that would trigger, for example, the hot allowance for every hour of every day that they work, is that right?‑‑‑That's correct, yes.
*** PAUL JOHN CRADDEN XXN MS SOSTARKO
PN81
I guess another example would be that it would be correct to say that not every employee working under the award would perform work that would trigger the wet work allowance to every hour of every day that they work?‑‑‑Not for every hour of every day because in certain conditions when it's we weather, like obviously it's not safe so no.
PN82
Along those lines would also be right to say that an employee working under the award who performs work that would trigger the cold work allowance wouldn't do so every hour of every day that they work?‑‑‑Well that depends on what they're doing but you wouldn't be putting somebody in that conditions for 10 to 12 hours a day, no.
PN83
There are other allowances that you've mentioned, for example, the confined space allowance, I think you know what I'm going to ask you but I suppose would it be right to say that that allowance would not be triggered at all times for every hour of every day that it's worked under the award?‑‑‑Again, civil is mainly 10 and 12 hour days so you wouldn't have somebody in a confined space for up to 12 hours a day, no, you couldn't. Well they could be in there for several hours, several hours in the morning and maybe several hours in the afternoon, and it can change.
PN84
Isn't it the case then that there are circumstances where it wouldn't be possible, for example, to trigger certain allowances simultaneously like, for example, I said earlier the hot work and cold work allowance?‑‑‑Possibly.
PN85
Thank you very much, Mr Cradden, and I really appreciate your time. I have nothing further?‑‑‑Okay.
PN86
If it pleases the Commission.
PN87
VICE PRESIDENT HATCHER: Thank you. Does anybody else want any cross-examination this witness? Ms Paul?
PN88
MS PAUL: No, your Honour.
PN89
VICE PRESIDENT HATCHER: Ms Adler?
PN90
MS ADLER: No, your Honour.
*** PAUL JOHN CRADDEN XXN MS SOSTARKO
PN91
VICE PRESIDENT HATCHER: Anybody else? All right. Any re-examination, Mr Crawford?
MR CRAWFORD: Just one question, your Honour.
RE-EXAMINATION BY MR CRAWFORD [11.27 AM]
PN93
MR CRAWFORD: Mr Cradden, what's your understanding regarding whether any employees in the civil construction industry are paid according to the award?‑‑‑A lot of them are paid just slightly above. Depends on obviously the companies they're dealing with.
PN94
Thank you, nothing further.
VICE PRESIDENT HATCHER: All right, thank you for your evidence, Mr Cradden, you're excused and you're free to leave.
<THE WITNESS WITHDREW [11.27 AM]
PN96
VICE PRESIDENT HATCHER: All right, Mr Crawford, who's next?
PN97
MR CRAWFORD: Your Honour, can I please call Mr Callinan in Sydney.
PN98
VICE PRESIDENT HATCHER: Can I ask one of the parties in Sydney to invite the next witness to enter the courtroom, please.
PN99
MR MILLER: Yes, one moment, your Honour.
VICE PRESIDENT HATCHER: Mr Callinan, you can remain standing. We'll just administer the affirmation to you.
<ANTHONY WILLIAM CALLINAN, AFFIRMED [11.29 AM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [11.29 AM]
PN101
VICE PRESIDENT HATCHER: Right, please be seated Mr Callinan. Do you have a copy of your witness statement with you?‑‑‑I do.
*** PAUL JOHN CRADDEN RXN MR CRAWFORD
*** ANTHONY WILLIAM CALLINAN XN MR CRAWFORD
PN102
Yes, all right. Mr Crawford.
PN103
MR CRAWFORD: Mr Callinan, does your witness statement comprise 12 paragraphs?‑‑‑That is correct, yes.
PN104
Did you sign that statement on 14 November 2008?‑‑‑I did.
PN105
To the best of your knowledge, is the content of that statement true and accurate?‑‑‑I have noticed that (1) in the statement, it reflects that I commenced work with the Australian Workers Union in 2014. That's a typo on my behalf it was early 2004 that I started with the AWU.
PN106
Thank you, Mr Callinan. Aside from that correction, to the best of your knowledge is the content of the statement true and accurate?‑‑‑Yes.
PN107
I seek to tender it, your Honour.
VICE PRESIDENT HATCHER: All right, the statement of Anthony Callinan dated 14 November 2018 will be marked exhibit AC.
EXHIBIT #AC WITNESS STATEMENT OF ANTHONY WILLIAM CALLINAN DATED 14/11/2018
VICE PRESIDENT HATCHER: All right, who'd like to cross‑examine this witness? Ms Paul?
CROSS-EXAMINATION BY MS PAUL [11.30 AM]
PN110
MS PAUL: Morning, Mr Callinan. Can I take you to paragraph 3 of your - sorry, to paragraph 4 of your statement. You say there that you are familiar with the civil construction industry and, in effect, you've actually negotiated a number of enterprise agreements in the sector, is that correct?‑‑‑Yes, that is correct.
PN111
The employers that you've listed in paragraph you're your statement, which are Lendlease, CPB, Laing O'Rourke, Boral and Fulton Hogan, you've negotiated enterprise agreements with those employers?‑‑‑They are some of the employers, yes. There are many others.
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN112
As part of your duties, would it be correct to say that you're familiar with the award?‑‑‑Yes, I am familiar with certain parts better than others but, yes, I do have a general knowledge of the award.
PN113
You'd agree that the award is set as being the safety net for minimum conditions as made by the Commission?‑‑‑Yes, that's correct.
PN114
If I can take you to kind of the concept under the award of the disability allowances, the disability allowances, isn't it correct that that's usually only triggered under the award when an employee is actually undertaking the work or experiencing the particular disability while - - -?‑‑‑I'm sorry, I'm finding it a bit hard to hear you.
PN115
I'm sorry?‑‑‑You're a little bit soft, sorry.
PN116
Sorry. You'd agree that in terms of the award disability allowances, those allowances are only payable when someone actually experiences the particular disability. That would be correct, wouldn't it?‑‑‑Yes, that is correct, that's my understanding.
PN117
If I can take you to paragraph 10 of your statement?‑‑‑Yes.
PN118
In that statement you list a number of disability allowances that you say AWU members regularly perform?‑‑‑Yes.
PN119
In terms of that, I just want to clarify you can't trigger, for example, the underground work and the height work, can you, at the same time? The employee doesn't get both allowances at the same time?‑‑‑No, it'd be unusual for a worker working underground to be employed at heights. That's ‑ I'd have to agree with that.
PN120
In effect that they're only getting that allowance - they'd only get, in essence, in some instances only part of that ‑ part of those - one of those allowances or a few of those but certainly not all of them at the same time?‑‑‑No, not all of them at the time. Would be very unusual, yes.
PN121
Thank you. We can take you back to the enterprise agreements that you've negotiated. You'd agree with me that for the EBAs to be effective they need to pass the BOOT test so that in effect the agreement terms have to be better than the award, correct?‑‑‑Yes, that's a requirement of the Act, yes.
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN122
That would also then follow that employees under the EBAs are better off than if they were under the award?‑‑‑Yes. The employees under the EAs would, yes.
PN123
The agreements that you've - with the companies that you've negotiated with the civil construction - generally in civil construction work it'd be correct say that their employees are all covered under enterprise agreements?‑‑‑Yes, so the company that's obviously entered into the enterprise agreement, if I use say Lendlease or CPB as an example, they would have an enterprise agreement to cover their employees but on the same site there could be, in some cases, many hundreds of contractors that are paid under the terms and conditions of the relevant award, performing work on the same construction site.
PN124
But in relation to the employees that you've indicated, generally under the - when they're undertaking civil construction work their employees are covered by enterprise agreements, correct?‑‑‑Yes. If there's an enterprise agreement with that company for the work, yes, they would be.
PN125
Would you agree that it's also common practice for EBAs on civil sites to bundle up individual disability allowances and pay either one overall allowance, pay a higher or incorporate and pay rates or pay site allowances, for example, so as not to pay individually each of those allowances? Wouldn't that be correct?‑‑‑Yes, in most of our enterprise agreements, or AWU agreements, there's significantly much higher wages and prescribed by the award minimum and in some cases they do include an amount for allowances and there are also some allowances applicable in those agreements as well but it's not unusual to have a much higher hourly rate in an agreement negotiated by the AWU than what the award minimum is.
PN126
That would also mean that they would be - they effectively are able to roll up and not have to pay each one of those individual allowances, that'd be correct wouldn't it?‑‑‑Yes, that's generally what the agreements prescribe, yes.
PN127
It'd be correct then to say that for those adopting those arrangements, the employees working for them on a site are compensated for those common disabilities for all hours they work on site irrespective of whether or not they might actually experience that particular disability? That's true isn't it?‑‑‑Yes. If the agreement's silent on one of these allowances then, yes, it would be included in the rate and they would get it for each hour. In addition. we generally have a productivity payment of $4, $5 or $6 as well on top of the hourly rates that are in some cases double the award rate.
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN128
It's correct to say it's kind of a swings and roundabouts type process here? Not everyone experience a disability but they do get paid an extra generally to compensate them in all cases. That'd be a fair statement, wouldn't it?‑‑‑Yes, under an enterprise agreement, that's usually the way we do it.
PN129
VICE PRESIDENT HATCHER: Sorry, Ms Paul, you talking about under an enterprise agreement are you?
PN130
MS PAUL: I'm sorry?
PN131
VICE PRESIDENT HATCHER: Are you talking about under an enterprise agreement?
PN132
MS PAUL: Yes, your Honour.
PN133
VICE PRESIDENT HATCHER: Right. Can you just make that clear.
PN134
MS PAUL: Sorry, just so that I'm clear, I was referring to the swings and roundabouts situation in relation to enterprise agreement employees. Would your answer still be the same?‑‑‑Yes, that's normally the way.
PN135
Thank you?‑‑‑But again, the swings and roundabouts would be ‑ the hourly rates we're talking in our enterprise agreements in most cases be double that prescribed by the award minimums so there is a fair few more swings and roundabouts one might say.
PN136
VICE PRESIDENT HATCHER: It's presumably why they don't get a swinging scaffold allowance or anything?‑‑‑Yes, exactly.
PN137
MS PAUL: Can I take you to paragraph 9 of your statement?‑‑‑Yes.
PN138
MS PAUL: Would you like to refresh your mind and memory and read that?‑‑‑Yes. No, I'm aware of what mine says. I've got it in front of me.
PN139
It's correct, isn't it, the AWU has not undertaken any survey of the civil construction industry workers or commissioned any impact statement or anything of that sort?‑‑‑I've not conducted a survey, no, that part of what you said is correct. I haven't been involved in any survey.
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN140
I take it you have not spoken to all the workers in the civil construction industry, would that be correct?‑‑‑Yes. that'd be a fair assumption. It'd be fairly impossible to do so.
PN141
Your statement at paragraph 9 says that the proposed compensation will result in workers in the industry being substantially financially disadvantaged. That's what you say, isn't it?‑‑‑Yes.
PN142
That's not necessarily correct, is it? It wouldn't be all workers would be substantially financially disadvantaged?‑‑‑My statement doesn't say all workers. It says workers. My statement says will result in workers in the industry being substantially financially disadvantaged, it doesn't say - - -
PN143
Thank you for correcting me on that?‑‑‑all workers or every single worker.
PN144
let's then take that to result in workers in the industry, so are you saying it would only be some workers in the industry that would be substantially financially disadvantaged?‑‑‑Well it's pretty obvious that if someone was working in an industry where they never received any of these allowances, which would be fairly - very rare I would assume - I believe, then it's pretty obvious that they wouldn't be worse off if the other allowance increase. But, for example, someone worked underground for 12 hours a day 6 days a week that got the underground allowance or somebody that worked in a confined space for 10 hours a day 5 days a week would be significantly disadvantaged if the proposed amount was to be applied and a comparison done to what their current entitlement is. That's the basis of my statement at 9
PN145
Right, so in terms of the example you provided about underground workers, would it not be more the case that underground workers and projects would actually be covered by enterprise agreements?‑‑‑No. In some cases, was if ‑ again, if we use - if I look at Sydney, which is the area I currently work in, we have three major tunnels under construction here at the moment, NorthConnex, WestConnex and Sydney Metro, we have an enterprise agreement with Lendlease, CPB and the likes for their direct employees but there is many hundreds, many hundreds, of contractors who would only rely on the award or some other form of contract with their employer but I'm aware there's many that just get over award payments and other arrangements but the award's effectively their minimum standard. They would entitle that allowance. Usually they do 12 hour shifts and they're underground for probably 11 of the 12 hours and that's their only workplace. They don't - they work underground and they get that allowance or entitled to that allowance. So if - now if they weren't to get that, obviously there'd be significant disadvantage.
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN146
Can we take it, the comment you just, around the fact that there would be hundreds of workers and they'd be paid over award or some other contractual term, that's essentially assumptions on your part that they would actually be substantially financially disadvantaged, isn't it?‑‑‑Obviously haven't done the calculation for every one of those hundreds of workers I referred to but I have done many underpayment claims and back pay claims on behalf of members that have, actual fact, been paid less than the award, so, yes, there is a degree of assumptions in my ‑ based on my experience in the industry but, yes, I can't - I'm certainly not going to sit here and profess that I'm aware of what everyone in every industry, or in the civil construction industry, gets paid.
PN147
Thank you. If I can take you to paragraph 10 of your statement and, again, this is the list of disability allowances you say that the AWU members regularly perform. Again, you make - you're identifying in that list is based solely on your experience isn't it?‑‑‑It is, yes.
PN148
Again, you've not sort of - sorry, I'll withdraw that. In fact, at paragraph 11 of your statement you accept that you can see that some of these allowances may only be applicable to a small proportion of the working hours of some of employees and others may receive this the majority of hours, is that correct?‑‑‑Yes, that's correct.
PN149
Again, when you make that statement you're, again, making that as a general statement based on your experience or your assumptions. It's not based on any analysis that you've done or any analysis the AWU's done?‑‑‑No, it's based on my experience over many years as an organiser and working in the industry prior to being an organiser and actually receiving some of these allowances at different times. Again, for example, if I was to get wet for 3 hours and then was released to go and get dry clothes on, I would get the wet allowance for a period but, again, I was underground in the tunnel, I'd get that allowance all the time. So it's based on my experience both in the industry as a worker and in the industry as an organiser.
PN150
But it'd be correct to say that you don't really know how many people in the industry would undertake a particular work that attracts a particular disability, how much time they would spend, for example, doing that kind of work on a day or a per week, et cetera, would you?‑‑‑No. If you were to ask me for a specific number, the answer is no, I don't, wouldn't be able to give you a number of workers or a number of hours they get each of them allowances. No, I wouldn't be able to provide that information. I don't ‑ haven't done the work to be to be certain of that.
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN151
It'd be correct to say that every employee covered by the award will not be undertaking underground work for every hour of every day that they work, that'd be correct, wouldn't it?‑‑‑Not every employee not only those that are working underground.
PN152
Similarly that principle would apply to each of those allowances?‑‑‑That's correct.
PN153
I've no questions for you and thank you.
PN154
VICE PRESIDENT HATCHER: Does anyone else wish to cross‑examine this witness? No? No? Mr Callinan, you referred in your examples of allowances which will be paid for much of the day to the confined space allowance, in the civil construction industry can you describe the circumstances in which that allowance might be payable?‑‑‑Yes, well there's varying definitions. I've found the definition of confined space in the award a bit light on when considering industry standard but I used to be trained as a confined space rescue person and so there's a number of areas - in industry, a confined space is generally sort of defined as an area that's not designed to work in. You may have to go into a tank to do some repairs, you might go down a pump pit, for example, there could be a concrete pit where there is a pump, an electric motor mounted, that requires repairs. You might actually be building those pits and you're going down inside formwork in a hole that's dug in the ground to tie steel for the concrete reinforcing, there's lots of instances where employees would be required to work under a confined space entry permit with additional safety standards in place and a suitably trained rescue person and rescue plan in place in the event that the air quality in that confined base was not sufficient to sort of sustain life or someone was injured and they had to be rescued. So, yes, lots of areas where confined space work will be conducted.
PN155
Right, thank you. Any re-examination, Mr Crawford?
PN156
MR CRAWFORD: No, thank you, your Honour.
VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Callinan. You're excused and you're free to go.
<THE WITNESS WITHDREW [11.47 AM]
PN158
VICE PRESIDENT HATCHER: Who's the next witness, Mr Crawford?
PN159
MR CRAWFORD: Your Honour, given the time, could I please call Mr Wakefield on the phone?
*** ANTHONY WILLIAM CALLINAN XXN MS PAUL
PN160
VICE PRESIDENT HATCHER: All right.
PN161
MR CRAWFORD: Excuse me, your Honour?
PN162
VICE PRESIDENT HATCHER: Yes.
PN163
MR CRAWFORD: I'm not sure I actually asked to tender Mr Callinan's statement.
PN164
VICE PRESIDENT HATCHER: Yes, yes, it's marked exhibit AC.
PN165
MR CRAWFORD: Sorry, thank you.
PN166
VICE PRESIDENT HATCHER: We might adjourn until we can make contact with Mr Wakefield. If there's a problem, we might move on to another witness.
SHORT ADJOURNMENT [11.48 AM]
RESUMED [11.54 AM]
PN167
VICE PRESIDENT HATCHER: Mr Wakefield, you're on the phone.
PN168
MR WAKEFIELD: Yes.
PN169
VICE PRESIDENT HATCHER: The court officer will administer the affirmation to you now.
PN170
MR WAKEFIELD: Thank you.
PN171
THE ASSOCIATE: Please state your full name and address.
MR WAKEFIELD: Kade Anthony Wakefield, (address supplied).
<KADE ANTHONY WAKEFIELD, AFFIRMED [11.55 AM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [11.55 AM]
*** KADE ANTHONY WAKEFIELD XN MR CRAWFORD
PN173
VICE PRESIDENT HATCHER: All right, Mr Crawford?
PN174
MR CRAWFORD: Thank you, your Honour. Mr Wakefield have you prepared a statement in these proceedings?‑‑‑Yes.
PN175
Do you have a copy with you?‑‑‑Yes, in front of me.
PN176
Are there nine paragraphs in that statement?‑‑‑Correct.
PN177
And did you sign that statement on 14 November 2018?‑‑‑To the best recollection, yes.
PN178
And to the best of your knowledge is the content of that statement true and accurate?‑‑‑Yes, it is.
PN179
I seek to tender it, your Honour.
VICE PRESIDENT HATCHER: The statement of Kade Wakefield, dated 14 November 2018 will be marked exhibit KW.
EXHIBIT #KW WITNESS STATEMENT OF KADE WAKEFIELD DATED 14/11/2018
VICE PRESIDENT HATCHER: Who's going to cross-examine this witness, Ms Paul?
CROSS-EXAMINATION BY MS PAUL [11.56 AM]
PN182
MS PAUL: Thank you, your Honour.
PN183
VICE PRESIDENT HATCHER: So, Mr Wakefield, can you hear Ms Paul?‑‑‑Yes.
PN184
All right, thank you.
PN185
MS PAUL: Thank you. Mr Wakefield, can I just ask, you're familiar with the Building and Construction On-site Award?‑‑‑Yes, somewhat. Yes.
*** KADE ANTHONY WAKEFIELD XXN MS PAUL
PN186
And it'd be correct to say that the award is the safety net of minimum conditions?‑‑‑It's a safety net, yes.
PN187
Now, would you also agree with me that the award disability allowances are usually only triggered when the people actually experience that particular disability? Sorry, it needs to be complete, under the award?‑‑‑So if you're employed solely under the award, yes, that's correct.
PN188
Can I take you to paragraph 9 of your statement?‑‑‑Yes.
PN189
Now, at paragraph 9 of the statement you list a number of disability allowances which you say that AWU members regularly perform, would tat be correct?‑‑‑Yes.
PN190
And am I clear that you're - in that statement in, in paragraph 9, you're not saying that those allowances are paid all of the time in - sorry, let me rephrase that, I withdraw. You're not saying, at paragraph 9, that an employee would receive all of those allowances for every - for the hours they work?‑‑‑It would be rare for one employee to get all of those allowances at once.
PN191
VICE PRESIDENT HATCHER: Ms Paul, I think all the statements, in paragraph 11 or the equivalent, the proposition you just stated, so I'm not sure we have to keep asking this.
PN192
MS PAUL: Thank you, your Honour. Now, Mr Wakefield, you've negotiated EBAs, would that be correct?‑‑‑Correct.
PN193
And in paragraph 3 of your statement you've listed a number of employers that - sorry, you've listed a number of employers?‑‑‑Yes.
PN194
Would it be correct to say that those employers or have enterprise agreements?‑‑‑I'll just read through - yes, they'd have multiple - depending on the nature of what they're doing, they have multiple agreements, yes.
PN195
And those agreements wouldn't actually cover the work in the building construction civil construction space, that would be correct, wouldn't it?‑‑‑In the scope of that, yes.
PN196
So you'd also agree that by virtue of being under an EPA those employees are paid well above the award, would that be correct?‑‑‑That's the plan, yes.
*** KADE ANTHONY WAKEFIELD XXN MS PAUL
PN197
VICE PRESIDENT HATCHER: So what do you mean by that answer?‑‑‑That's what we - that's what we try and do, yes.
PN198
What is actually - - -?‑‑‑They'd be above award.
PN199
Is that actually the case, as distinct from your intentions? What is actually position?‑‑‑They - to the best of my knowledge every single one of those companies would be paid above award, yes.
PN200
All right, thank you.
PN201
DEPUTY PRESIDENT HAMILTON: Could I perhaps ask a question? Is the essence of your evidence that based on your observations of worker - of work contracts and practices that they would lose out, so it's a subjective assessment, based on your experience and observation, of workers working, is that the essence of your witness statement?‑‑‑The essence of my witness statement is when, as your colleague alluded to, we negotiate agreements that are above award. We found that on, our a justification for achieving those results, are founded on the basis that these people would be receiving those various allowances and therefore that forms part of their wage increase. If you remove that then our argument or justification for a higher wage diminishes.
PN202
VICE PRESIDENT HATCHER: So what I said wasn't right then, it's just about renegotiation of an agreement?‑‑‑For many industries, yes.
PN203
MS PAUL: If you could just bear with me for a couple of seconds, your Honour, because I think I might have most of my questions already answered. So would it be correct to say that you haven't spoken to all employees that work in the sector, that would be correct wouldn't it?‑‑‑I think you know the answer to that, that's just not possible.
PN204
And you're not suggesting that the enterprise agreements that you have negotiated currently, in the civil construction industry, you're not suggesting that those employees would be worse off under those agreements if the amendments were to be made under the award?‑‑‑I beg your pardon? Could you repeat that please?
*** KADE ANTHONY WAKEFIELD XXN MS PAUL
PN205
Sorry. If the commission were to make the proposed changes, you're not saying, are you, that the employees under the current agreements that you have negotiated would be worse off?‑‑‑Potentially they could be because we usually do our agreements wholly in conjunction with the awards. So I'm sure you're aware, if the agreements aren't (indistinct) on allowances and conditions then, yes, it may go back through to the award and in that instance there'd be - there'd be none of those allowances present, evidently.
PN206
I'm sorry, can I jus clarify? Those agreements - would you accept that the agreements that you enter into would have an all in rate, or some sort of site rate, so that employers don't ply each one of the allowances individually?‑‑‑Well, you're lumping all the agreements up in one - in one hole, which is just impossible for me to give you a blanket statement in that regard. So what I'm saying is a lot of our agreements will operate in conjunction with the award and in that case some of those agreements will have or be signed on certain allowances and conditions and then that naturally, if operates wholly in conjunction with an award, an agreement that is, will fall back to whatever the conditions are in the award. So therefore those - some individuals may miss out or lose out.
PN207
VICE PRESIDENT HATCHER: Mr Wakefield, just looking at paragraph 10 of your statement - - -?‑‑‑It only goes up to nine, sorry.
PN208
I'm in the wrong statement. Yes, sorry, paragraph 9 of your statement. In any agreement you have been dealing with, either expressly or by reference back to the order, are any of those allowances paid to separate amounts, as distinct from being rolled up into the site allowance?‑‑‑I couldn't give you a definitive answer on that.
PN209
MS PAUL: Your Honour, I have no further questions of Mr Wakefield.
VICE PRESIDENT HATCHER: All right, any other cross-examination? No. Any re-examination, Mr Crawford?
RE-EXAMINATION BY MR CRAWFORD [12.03 PM]
PN211
MR CRAWFORD: Just another question, your Honour. Mr Wakefield, what's your understanding regarding whether any employees in the civil construction industry are currently paid according to the award?‑‑‑So essentially the key ones or the ones - a lot of the ones we deal with will be paid above. But there's a whole subsector under that, which is tier 2s, tier 3s, subcontractors that are all on or around the award. So that would have a massive effect on all those subsector of employees which, to be honest, is the bulk of the workforce, so it would have a quite a drastic effect on their income.
PN212
Thank you, nothing further.
*** KADE ANTHONY WAKEFIELD RXN MR CRAWFORD
VICE PRESIDENT HATCHER: All right, thank you for your evidence, Mr Wakefield, you're excused, so that means you can simply hang up the phone.
<THE WITNESS WITHDREW [12.04 PM]
PN214
VICE PRESIDENT HATCHER: All right, who's next, Mr Crawford?
PN215
MR CRAWFORD: Yes, your Honour, the next witness is Mr Burke, from Sydney.
PN216
VICE PRESIDENT HATCHER: Mr Burke. All right. Can someone in Sydney asked Mr Burke to come in please?
PN217
THE ASSOCIATE: Yes, your Honour.
PN218
VICE PRESIDENT HATCHER: Thank you. Mr Burke, can you stand up please and we'll just administer the affirmation to you.
PN219
MR BURKE: Sure.
PN220
THE ASSOCIATE: Please state your full name and address?
PN221
MR BURKE: Home address or work address?
PN222
VICE PRESIDENT HATCHER: Either will do, Mr Burke.
MR BURKE: Sean Burke, 18 Belmore Street, Wollongong. That's my work address.
<SEAN BURKE, AFFIRMED [12.06 PM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [12.06 PM]
PN224
VICE PRESIDENT HATCHER: Mr Crawford?
PN225
MR CRAWFORD: Thank you, your Honour. Mr Burke have you prepared a statement in these proceedings?‑‑‑I have.
*** SEAN BURKE XN MR CRAWFORD
PN226
Do you have a copy with you?‑‑‑I do.
PN227
Does it have 11 paragraphs?‑‑‑It has 11 paragraphs.
PN228
Did you sign that statement on 12 November 2018?‑‑‑I did.
PN229
To the best of your knowledge, is the content of that statement true and accurate?‑‑‑It is true and accurate.
PN230
I seek to tender it, your Honour.
VICE PRESIDENT HATCHER: Yes, the statement of Sean Burk, dated 12 November 2018 will be marked exhibit SB.
EXHIBIT #SB WITNESS STATEMENT OF SEAN BURKE DATED 12/11/2018
VICE PRESIDENT HATCHER: All right, Ms Pau?
CROSS-EXAMINATION BY MS PAUL [12.07 PM]
PN233
MS PAUL: Thank you, your Honour. Mr Burke, you have indicated, in your statement, that you assist AWU members working for a number of employers that you have stated in paragraph 3. So that would be CPB, John Holland et cetera. Have you negotiated an agreement - - -?‑‑‑Yes.
PN234
Have you negotiated any enterprise agreements with those or been participating in the negotiation of enterprise agreements with those employers?‑‑‑I have in lot of others I've covered without an enterprise agreement, just based on the award.
PN235
But those particular employers that you mentioned, there all - would be covered by an enterprise agreement with the AWU?‑‑‑Yes.
PN236
Now, in terms of the enterprise agreements that you have negotiated, those agreements - sorry, would it be correct to say that in those agreements that there would be all up right of much higher rates of pay than what an employee would receive under the award?‑‑‑That would be correct, but we also take into consideration all allowances so we can reach an agreement with a higher rate of pay without having to go through the allowances in each occasion or occurrence.
*** SEAN BURKE XXN MS PAUL
PN237
So it would be a rolled up rate or a rolled up site rate for the employer doesn't have to pay each one of those allowances in those enterprise agreements, would that be correct?‑‑‑No that's not correct because they pay the allowance through an inflated rate.
PN238
Now, would it be correct to say that you've not, obviously, taken - sorry. Would it be correct to say the AWU has not taken any survey or provided you any information about any such information regarding the civil construction industry workers and the impact of the proposed changes?‑‑‑A formally lodged survey, no. An informal one, personally, of the fellows I cover and we may well have an enterprise agreement, and I'll use the tunnel for an example, and have a number of other companies in there that have an overpayment above the award which - which we use such allowances as we're discussing now to reach an agreement, sure.
PN239
So you've had discussions with those employees that are covered by enterprise agreements, is that what you're saying?‑‑‑No. What I'm saying is I've covered both the EA covered employees and the award covered employees.
PN240
And you've had specific discussions about this proposed changes with those employees?‑‑‑Most definitely. We have quite a few hundred men working in tunnels right now. They're not all under an agreement and I cover these sites every week.
PN241
And it would be correct to say that the - that a vast number of those employees would be covered by either an over award payment or some higher payments than the award, would that be correct?‑‑‑That would be correct, and we've got to that over award payment by using the - a number of allowances to get there.
*** SEAN BURKE XXN MS PAUL
PN242
So when you make a statement - sorry, at paragraph 10, when you - when you make the statement that the - you'd suggest a 15 to 20 per cent for the new industry allowance, that's really based on your assumptions, isn't it?‑‑‑I've worked in the industry, not just as an organiser but on the shop floor. When you look at the simple fact that you only pay the highest allowance as it is under the award, I'd personally say that is a mistake because you basically deskilling, devaluing a man's ability. That's not an assumption to say that if I fulfil a number of these roles at one time that I should not reap some benefit. But, instead, the award only pays the highest of the allowance, right, under clause 22. And you'll also see, in - under - under section 9 of my statement, you know, there's a few there, the live sewer, the pneumatic tools, they're under the general construction not civil. For us to come to an agreement to wipe out all these allowances and then just pay 5 per cent, that would be bordering on criminal. We need to escalate the value of these allowances to reach something that adds value to the man's wage and recognise the fact that he has a multitude of different skills that he can use at once. Five per cent doesn't cut it.
PN243
Mr Burke, it would be correct to say what you just said was your opinion, correct?‑‑‑Not only is it my opinion but the membership that I've discussed this with over the last, I guess, three or four months.
PN244
I've got no further questions. Thank you, your Honour.
VICE PRESIDENT HATCHER: Thank you. Ms Sostarko?
CROSS-EXAMINATION BY MS SOSTARKO [12.13 PM]
PN246
MS SOSTARKO: Thank you, Mr Burke. My name is Rebecca Sostarko, from Master Builders. If I could just ask one point, just for clarification. You mentioned in your evidence, just now, that you've conducted a so-called, I suppose, informal survey of your members, is that right?‑‑‑Yes.
PN247
In relation to this issue with respect to allowances. And can you tell me how many of those members you would say you've informally surveyed?‑‑‑Well, the easiest one I found to do was through, so the current tunnel system that's going on through Sydney, so we've got the WestConnex M4 and 5 metro tunnel system. I would say I saw probably 50 per cent of the guys through there that are on the enterprise agreements. It was a loose survey, it was just discussion around a crib room table, at toolbox and smoko. I would estimate a few hundred.
PN248
Thank you. And would you have a sense of, or could you tell me how many civil construction employees there might be across the country, just a very - I know it's a difficult question to answer but, broadly, how many would you say?‑‑‑Thousands.
PN249
Yes. Thank you. Nothing further, your Honour.
*** SEAN BURKE XXN MS SOSTARKO
PN250
VICE PRESIDENT HATCHER: Mr Burke, the example, from personal experience, you describe, in paragraph 11 of your statement, under the award, as it currently stands, what existing allowances would that situation attract, on top of the industry allowance and the special allowance, are you are able to say?‑‑‑Well that was a pretty interesting job that I was doing at the time, I was working with a successful company, working for, I'll say who it was, it was Sydney Water, and to stand in - it's a pretty blunt statement, but to stand in human excrement while you use the hammer to provide a surface to step off, it certainly wasn't one of the nicest jobs I've ever had to do in life. But all they want to do is underpay you, not pay to the right one. So there's a there's a number of areas that that should cut - should be recognised, (1) I was underground. (2) I was also applying scaffolding that day, I was using pneumatic tools. And did it weigh more than 2.75 kilos? I think it was 11 or 12 kilos, and live sewer work. So which allowance applied? Which one would you think would apply?
PN251
I'm asking you, which one did apply?‑‑‑The highest one, it was pneumatic tools.
PN252
All right, thank you.
PN253
DEPUTY PRESIDENT HAMILTON: So the example for 10 is paragraph 11, is that right? The two are linked, are they? In 10 you raise an issue of 20 per cent instead of 5 per cent and paragraph 11 is the example of a situation which should attract it, is that right?‑‑‑Yes.
PN254
Thanks.
PN255
VICE PRESIDENT HATCHER: Any re-examination, Mr Crawford?
PN256
MR CRAWFORD: No, thank you, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Burke, you're excused and you're free to go.
<THE WITNESS WITHDREW [12.16 PM]
PN258
VICE PRESIDENT HATCHER: Who's next, Mr Crawford?
PN259
MR CRAWFORD: Your Honour, the proposal was for the AMWU's witness to now give evidence in Sydney.
PN260
VICE PRESIDENT HATCHER: All right. Mr Miller, are you in a position to call your witness?
PN261
MR MILLER: Yes, your Honour, I will go fetch Mr Isberg, if it lease.
PN262
VICE PRESIDENT HATCHER: All right, thank you. Mr Isberg, can you just remain standing and the court officer will issue the oath to you.
*** SEAN BURKE XXN MS SOSTARKO
PN263
THE ASSOCIATE: Please state your full name and address?
MR ISBERG: Stephen Isberg, (address supplied).
<STEPHEN ISBERG, AFFIRMED [12.18 PM]
EXAMINATION-IN-CHIEF BY MR MILLER [12.18 PM]
PN265
VICE PRESIDENT HATCHER: Please be seated, Mr Isberg. Mr Miller?
PN266
MR MILLER: Mr Isberg, can you please just confirm your name and address to the record?‑‑‑Yes. Stephen Isberg, 133 Parramatta Road, Granville.
PN267
And, Mr Isberg, have you prepared a statement for the purpose of today's proceedings?‑‑‑Yes, I have.
PN268
And have you got a copy of that statement with you?‑‑‑Yes, I have.
PN269
Can you tell me the date of that statement?‑‑‑14 November 2018.
PN270
And can you tell me how many pages and paragraphs are in the statement?‑‑‑Eight pages, 31 paragraphs.
PN271
Is that statement true and correct, to the best of your knowledge and belief?‑‑‑Yes, it is.
PN272
Your Honour, I seek to tender that statement of Mr Isberg.
VICE PRESIDENT HATCHER: All right. The statement of Stephen Isberg, dated 14 November 2018 will be marked exhibit SI.
EXHIBIT #SI WITNESS STATEMENT OF STEPHEN ISBERG DATED 14/11/2018
*** STEPHEN ISBERG XN MR MILLER
*** STEPHEN ISBERG XXN MS PAUL
VICE PRESIDENT HATCHER: Who would like to cross-examine this witness? Ms Paul?
CROSS-EXAMINATION BY MS PAUL [12.19 PM]
PN275
MS PAUL: Mr Isberg, inn your statement you worked for a company, Thermal Mechanical Services, is that correct?‑‑‑Yes.
PN276
Sorry, was there another company name that were called by?‑‑‑There're actually a couple of company names they're called by. Thermal Mechanical Services was one of them, Rothwell is another one.
PN277
Thank you. Was your agreement covered by an enterprise agreement? Sorry, was what your employment covered by an enterprise agreement, when you worked for them?‑‑‑Yes, it was.
PN278
Now, at paragraphs 9 to 12, you outline the work of a refrigeration mechanic. Would it be correct to say that the - sorry, I withdraw that. You've outlined at - you've outlined, at paragraph 18, that there are several disabilities associated with working with the work of an air conditioning tradesperson and refrigeration mechanic and one of those disabilities you state is a susceptibility to be cut, is that correct?‑‑‑That's correct, yes.
PN279
Now, there's no separate allowance payable for that part, is it?‑‑‑Not to my knowledge, no.
PN280
And then you then identify some further disabilities, at paragraph 19, and the main one being working in confined spaces, on rooftops and heights generally, in plant rooms, and with insulation?‑‑‑Yes.
PN281
Now, when you actually describe the issue of height work, at paragraphs 28 onwards of your statement, you provide an example about a car park exhaust fan, or car park exhaust, at paragraph 29?‑‑‑Yes.
PN282
Now, in terms of that height, where you talk about that car park, are you talking about a multi-storey car park in that circumstance?‑‑‑Yes, that's correct.
PN283
When you - now, when you refer to working in a confined space, sorry, in confined spaces, is that working in a plant room? Is that what you're saying is the confined space?‑‑‑Certain plant rooms are confined, yes.
*** STEPHEN ISBERG XXN MS PAUL
PN284
Now, a worker undertaking those activities, whether it's a - whether it's a refrigeration mechanic - sorry, we'll just take the refrigeration mechanic, would they be working in a plant room for every day of the whole of their working day?‑‑‑Not every day but most days, yes.
PN285
And similar with an air conditioning type person, would they be working in that plant room every day for the whole of the working day?‑‑‑Yes.
PN286
So it would depend on the type of work they're undertaking as to whether or not they're going to be working the confined space or not, that would be correct, wouldn't it?‑‑‑Yes, that'd be correct, yes.
PN287
So in effect - sorry. The evidence that you've provided is that's just based on - on, sorry, not just, that's based on your experience and - is that what the evidence is based on?‑‑‑My experience in the construction industry.
PN288
I'm sorry, I couldn't hear you?‑‑‑Sorry. My experience within the construction industry.
PN289
Thank you. I've got no further questions, your Honour.
PN290
VICE PRESIDENT HATCHER: Any other cross-examination? No. Any re-examination, Mr Miller?
PN291
MR MILLER: Nothing in re-examination, your Honour.
VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Isberg, you're excused and you're free to leave.
<THE WITNESS WITHDREW [12.24 PM]
PN293
VICE PRESIDENT HATCHER: Right, back to you, Mr Crawford, who's next?
PN294
MR CRAWFORD: Your Honour, Mr Hayden, I might just grab him from outside, if that's okay?
PN295
VICE PRESIDENT HATCHER: Yes, fine.
PN296
THE ASSOCIATE: Please state your full name and address?
*** STEPHEN ISBERG XXN MS PAUL
MR HAYDEN: Ronald Hayden, (address supplied).
<RONALD HAYDEN, AFFIRMED [12.26 PM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [12.26 PM]
PN298
VICE PRESIDENT HATCHER: Mr Crawford?
PN299
MR CRAWFORD: Thank you, your Honour. Mr Hayden, have you prepared a statement in these proceedings?‑‑‑I have.
PN300
Do you have a copy with you?‑‑‑I do.
PN301
Has it got 13 paragraphs?‑‑‑Yes.
PN302
And did you sign it on 13 November 2018?‑‑‑I did.
PN303
And to the best of your knowledge, is the content of that statement true and accurate?‑‑‑Yes.
PN304
I seek to tender it, your Honour.
VICE PRESIDENT HATCHER: Yes. The statement of Ronnie Hayden, dated 13 November 2018 will be marked exhibit RH.
EXHIBIT #RH WITNESS STATEMENT OF RONNIE HAYDEN DATED 13/11/2018
VICE PRESIDENT HATCHER: Ms Paul?
CROSS-EXAMINATION BY MS PAUL [12.27 PM]
PN307
MS PAUL: Thank you, your Honour. Mr Hayden, at paragraph 3 of your statement to indicate that your - you assist AWU members working for John Holland, Lend Lease, CPB, Laing O'Rourke, BMD, Winslow, Decmil, (indistinct)?‑‑‑That's correct.
*** RONALD HAYDEN XN MR CRAWFORD
*** RONALD HAYDEN XXN MS PAUL
PN308
Have you - are you aware that, sorry. Those employers or have enterprise agreements with their employees, do they not, when they work on civil construction projects?‑‑‑Winslow doesn't at the moment.
PN309
Winslow doesn't. Well, did they an enterprise agreement?‑‑‑Winslow?
PN310
Yes?‑‑‑A civil construction? No.
PN311
Are Winslow paying above award when they work on civil construction projects?‑‑‑At the moment they're just using labour hire, they don't directly engage.
PN312
Now, wouldn't it be - is it correct to say that, in terms of the enterprise agreement which cover the employers that you've described, that those enterprise agreements have an all in rate, in relation to - either an all in rate or they have a higher rate of pay and a - one sort of site allowance that covers a whole range of other disability allowances, would that be correct?‑‑‑Covers most allowances, not all. So it doesn't cover confined space, it doesn't have an underground allowance. That's why a lot of the agreements will incorporate the award.
PN313
Sorry, doesn't have the underground and confined space?‑‑‑So some of the agreements don't have an underground allowance, they may not have a working with asbestos allowance. I know, for example, recently we've got an BMD working on one project that they've discovered asbestos and we didn't have an asbestos allowance but we - the agreement incorporates the award, so we go back to the award for that allowance.
PN314
But some agreements do have an all in rate?‑‑‑Some agreements do, yes.
PN315
And it'd be correct to say that both agreements pay substantially higher than the award?‑‑‑That's correct.
PN316
Am I correct to say that you've not spoken to all workers in civil construction industry about these proposed changes, that'd be correct to say?‑‑‑You would be correct, yes.
*** RONALD HAYDEN XXN MS PAUL
PN317
So you do make a comment though, at paragraph - sorry, you do make a comment at, I've lost the page, apologies. You do make comments in your paragraph 8, that the proposal would have a significant negative effect, not only on members of the AUW but also all employees working the civil construction industry?‑‑‑That's correct.
PN318
That's not really correct, is it?‑‑‑That is my opinion. I think it is correct, yes.
PN319
And would it be correct to say that opinion is really based on the fact you've made some assumptions?‑‑‑The opinion is based on - I've spoken to a significant number of employees, members and non-members, working on civil construction and that's where my opinion is based on.
PN320
VICE PRESIDENT HATCHER: Can you give us some practical scenarios where you say they would be worse off?‑‑‑Yes. For example we've got, as I spoke, BMD, they've just come in contact with asbestos and there was no asbestos allowance in their agreement, so we went back to the award for it. There an agreement, we're talking with employees for a company, the agreement's before the Commission at the moment for it to be approved. We don't believe that would even pass the BOOT, speaking to the employees, because they're going to be tunnelling. There's no underground allowance incorporated into it, there's no confined space allowance incorporated into it.
PN321
Would that position changed if we the allowances were replaced with an all up allowance of 5 per cent?‑‑‑I believe so. Because these guys are working underground, in confined spaces, so under the award they would get the confined space allowance and they would get the underground allowance, and they're also wet work, so tunnelling is dirty, wet, underground and confined space, so we believe they would get access to all of that. If the award incorporated at all those allowances, then their agreement may actually pass the BOOT. At this stage we don't think it's going to.
PN322
Just explain to me, why does being underground necessarily give you the confined space allowance?‑‑‑Well, because they're working with the tunnel boring machine. So in front of the tunnel boring machine there's a confined space. So to enter that area you'd be in a confined space.
PN323
Thank you.
PN324
MS PAUL: So if I can take you to the BMD example you provided, they're paying well above the award, is that correct?‑‑‑That's correct.
*** RONALD HAYDEN XXN MS PAUL
PN325
Under the enterprise agreement. Okay, thank you. So if I can just go back then to the underground work that you've described the paragraph 13, "All employees with underground would be negatively impacted", and you do say "all employees". You're not suggesting that those employees that work for Lend Lease, for example, would be negatively impacted by the proposed changes?‑‑‑No, they wouldn't. Not at this stage but I do believe, moving forward, when we negotiate agreements we do go to the award when we're looking at site allowances as I said what the site allowance would be and what it's incorporated at that rate. And if these allowances were to be absorbed in the award, then the next time we negotiate for these employees I believe the company would come back and try and reduce that rate. So I believe they'd be effective, moving forward.
PN326
But that's going to be a matter for negotiation, isn't it?‑‑‑Yes, it certainly is.
PN327
And that will be the same again to CPB in Laing O'Rourke, that would be the same?‑‑‑That's correct. Provided they directly engage.
PN328
Yes. And it would also be correct, wouldn't it, that generally most have tunnelling activities that are coming up it would be the larger employers, either by themselves, such as Laing O'Rourke or CPB or Lend Lease, that would be the likely - undertaking that the work, usually?‑‑‑You wold imagine so. The West Gate tunnel project doesn't have an enterprise agreement.
PN329
But about the employers on that would have an enterprise agreement?‑‑‑Not all. One of the employers that I was talking about before is this agreement that we believe will be lower than the award.
PN330
But in terms of if we're talking about Lend Lease, Laing O'Rourke or CPB, they would probably have an enterprise agreement, that'd be correct, wouldn't it?‑‑‑CPB don't. Laing O'Rourke don't.
PN331
I've got no further questions, thank you.
VICE PRESIDENT HATCHER: Ms Sostarko?
CROSS-EXAMINATION BY MS SOSTARKO [12.34 PM]
PN333
MS SOSTARKO: Thank you, your Honour. Mr Hayden, my name is Rebecca Sostarko, I'm from Master Builders Australia. I just had a quick clarification, point of clarification of the evidence that you've just given and it is with respect to how the allowances are prescribed under the EBAs. You mentioned that those - aside from Winslow, that those other to the contractors don't actually specify that confined spaces and underground allowance are provided for separately, is that correct?‑‑‑Sorry, can you repeat that?
*** RONALD HAYDEN XXN MS SOSTARKO
PN334
Sorry. My question is that you said that they were confined spaces and underground allowance provided for separately, they're not part of any sort of consolidated site allowance or rolled up allowance, is that correct?‑‑‑That's correct.
PN335
Yes. And you also mentioned, just now, that CPB didn't have an enterprise agreement on the WestConnex project, is that correct?‑‑‑So there's no agreement on the West Gate tunnel project. It was a CPB/John Holland joint venture that was going to be a greenfields, but it, for better terms, got knocked off.
PN336
So are you aware of the WestConnex M4 East AWU Tunnelling Works Greenfields Agreement 2016-2020?‑‑‑In Sydney?
PN337
No, this is Victoria?‑‑‑No, there's not one in Victoria.
PN338
Okay?‑‑‑There's one in Sydney.
PN339
All right. So whether or not I've got my jurisdiction wrong, I would argue that - - -
PN340
VICE PRESIDENT HATCHER: What was the name of the agreement again, you just referred to WestConnex, it's a New South Wales agreement.
PN341
MS SOSTARKO: So the decision is AG2016/3914.
PN342
VICE PRESIDENT HATCHER: What's the agreement called?
PN343
MS SOSTARKO: WestConnex M4 East.
PN344
VICE PRESIDENT HATCHER: Yes, well that's Sydney.
PN345
MS SOSTARKO: So my question then I guess is where I'm going with this is that you have said that these allowances separate to. So are you aware that there are other agreements, that the AWU has negotiated, where those allowances are actually bundled into a site allowance or a productivity allowance, would you say that's correct?‑‑‑I'm not aware of any agreements that have everything that was on the list that's going to be incorporated included in. My understanding is, with the WestConnex, I believe they still have a separate confined space allowance.
*** RONALD HAYDEN XXN MS SOSTARKO
PN346
Well, I'll just let you know that that's not the case in this particular agreement that, in fact, the site allowance operates exclusively to those allowances that you've mentioned?‑‑‑I'll have to have a chat with my New South Wales partners.
PN347
Thanks, Mr Hayden, I appreciate that.
PN348
VICE PRESIDENT HATCHER: What's the position in relation to the Metro tunnel, about the treatment of allowances?‑‑‑I believe that they have some allowances incorporated into their site allowance and then they would have - they don't have an underground allowance and - - -
PN349
Is the award incorporated in those agreements?‑‑‑No.
PN350
Sorry, did you say the underground allowance is part of the site allowance, is it?‑‑‑I don't believe it mentions anything about an underground allowance, but I believe when that agreement was put forward it passed the BOOT, whether it had underground - mentioned it or not.
PN351
Any re-examination, Mr Crawford?
PN352
MR CRAWFORD: No, thank you.
VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr Hayden, you're excused.
<THE WITNESS WITHDREW [12.38 PM]
PN354
VICE PRESIDENT HATCHER: All right. Mr Blackford is the last witness?
PN355
THE ASSOCIATE: Please state your full name and address.
MR BLACKFORD: Nicholas Daniel Blackford, (address supplied).
<NICHOLAS DANIEL BLACKFORD, AFFIRMED [12.39 PM]
EXAMINATION-IN-CHIEF BY MR CRAWFORD [12.39 PM]
PN357
VICE PRESIDENT HATCHER: Mr Crawford?
*** NICHOLAS DANIEL BLACKFORD XN MR CRAWFORD
PN358
MR CRAWFORD: Thank you, your Honour. Mr Blackford, have you prepared a statement in these proceedings?‑‑‑Yes.
PN359
Do you have a copy with you?‑‑‑Correct.
PN360
Are there eight paragraphs in that statement?‑‑‑Yes.
PN361
And did you sign it on 14 November 2018?‑‑‑Correct.
PN362
And to the best of your knowledge, is the content of that statement true and accurate?‑‑‑Yes.
PN363
I seek to tender it, your Honour.
VICE PRESIDENT HATCHER: The statement of Nicholas Blackford, dated 14 November 2018, will be marked exhibit NB.
EXHIBIT #NB WITNESS STATEMENT OF NICHOLAS BLACKFORD DATED 14/11/2018
VICE PRESIDENT HATCHER: Who would like to cross-examine this witness? Mr McGregor?
CROSS-EXAMINATION BY MR McGREGOR [12.40 PM]
PN366
MR McGREGOR: Thank you. Thanks for coming in today to give evidence, Mr Blackburn. My name is Sam McGregor, I'm from the Master Builders Association. I've just got a few quick questions today, and we'll try and keep it as quick as we can. Can I just confirm that you wrote the statement you've got in front of yourself?‑‑‑Can you repeat that last bit, sorry?
PN367
I just said - sorry, I'll see if I can - I'm a bit taller than this microphone, I apologise?‑‑‑That's all right.
PN368
No, that's all right. Can I just confirm that the statement you've got in front you, you wrote that one yourself?‑‑‑Yes.
*** NICHOLAS DANIEL BLACKFORD XXN MR MCGREGOR
PN369
So the evidence that you provided relates to the proposed amendment of the Building and Construction On-site Award. Given your position in the construction industry, it's correct to say that you're familiar with the award, is that right?‑‑‑Correct.
PN370
Excellent. So it would be correct to say then that the award is a safety net, so it provides the minimum conditions that are made, as established by the Commission, for people that perform on-site construction work?‑‑‑Yes.
PN371
Excellent, thanks?‑‑‑Yes, that's one way of describing it, yes.
PN372
Great, thank you. So within the on-site award certain disability allowances are prescribed, and they're usually triggered in a situation when people experience disabilities on site, is that right?‑‑‑Yes.
PN373
Excellent. So if you've got your statement in front of you, can I just take it a paragraph 8, quickly?‑‑‑Yes.
PN374
So you've got that one there? Can I just get you to read out that first sentence on paragraph 8 for me, please?
PN375
In relation to the allowances the Commission is preposing to delete, my experience has been that the AWU members regularly perform work covered by the following allowances.
PN376
Great, thank you. And so those allowances that you listed there, that go on just below that sentence, they're not always payable - always paid for all workers all the time on site, are they?‑‑‑No.
PN377
Great. Obviously, in some cases, it's impossible that some of those allowances are paid collectively, so at the same time. For example you can't get a hot work in a cold work allowance payable at the same time?‑‑‑That's correct.
PN378
Great, thanks. And so, just - just so your evidence is clear, at paragraph 8, you're not suggesting that all of the allowances are triggered all the time or paid for each and every hour that people are at work, are you?‑‑‑No.
PN379
Great, thanks. If you need me to repeat a question just shout our and I'm happy to - or rephrase it or something like that?‑‑‑Yes.
*** NICHOLAS DANIEL BLACKFORD XXN MR MCGREGOR
PN380
So when the EBAs are made, they need to satisfy the better off overall test, under the Fair Work Act, are you familiar with that test?‑‑‑I am. I am very familiar with that test.
PN381
Excellent, good?‑‑‑Whether it's an accurate test, that is questionable.
PN382
But you're familiar with it notwithstanding?‑‑‑Correct.
PN383
The test stops people going backwards when they're make an EBA, doesn't it?‑‑‑(Indistinct).
PN384
So - - -?‑‑‑In your opinion, backwards like the award or backwards from a current agreement? I'm not sure of the question.
PN385
Well, the function of the BOOT test is to stop people going backwards in their entitlements, is that right? Sorry, with respect to what you just said?‑‑‑In their entitlements. If you're negotiating a new agreement or just putting it up against the award?
PN386
Just against the award?‑‑‑Against the award, okay. I think that's the intent, whether or not that's accurate my opinion is it's not.
PN387
Okay?‑‑‑I'm not sure if that's a okay thing to say.
PN388
No, that's all right, this is your evidence and that's why we're here and that's why I'm asking the question.
PN389
VICE PRESIDENT HATCHER: No, just ask the questions, please.
PN390
MR McGREGOR: Yes. So can I just get a paragraph 2 of your statement? In paragraph 2 you've you listed some civil construction companies where your members work, Downer (indistinct) and so on. These companies use EBA's don't they?‑‑‑Yes, they do. Yes.
*** NICHOLAS DANIEL BLACKFORD XXN MR MCGREGOR
PN391
And it's common practice, on civil sites, to bundle up these individual disability allowances, prescribed under the on-site award so that they're commonly triggered as either an overall allowance, which is a site or project allowance, or they're incorporated into a higher wage rate, is that right?‑‑‑That does happen but it's not always the case.
PN392
And those amounts, regardless by which method they're applied, they're made in lieu of paying each individual allowances, that's correct?‑‑‑At that time, yes. You're talking about just those four specific, because obviously et cetera means there's a lot of other employees that that statement would cover.
PN393
Yes, my question was just with respect to the times when allowances are rolled up into a site rate or a higher rate of pay?‑‑‑Okay.
PN394
So when we do adopt those or, should I say, when employers adopt those arrangements that means that everyone on site is being compensated for common disabilities for all hours that they're at work on site, is that correct?‑‑‑Sometimes. But it's also important that we incorporate the award into these agreements and a lot of them, in the civil construction industry are incorporated. So it lists references absorbing those are all (indistinct) into to the base rate, then it would be applicable when they do those particular tasks.
PN395
It's not equally uncommon though to exclude the award from an EBA, is that right?‑‑‑No, that's right. Absolutely it's not uncommon, but it's also quite common.
PN396
Yes. So it would be right to say, again, that it's a bit of a swings and roundabouts situation, that not everyone experiences every disability all time and - but everyone does get paid extra when that is the circumstances that compensate them in the case that they do experience a disability, is that a fair assessment?‑‑‑No, not always. It's not always exactly as you're wrapping it up there.
PN397
Well, I accept that you deal with civil construction and I've read your statement and that sort of thing, do you have any experience whether this is also the case outside of civil construction? So general commercial construction, do they do the same processes?‑‑‑I don't really deal with that space.
PN398
That's fine. So just going back to those companies that you've referred to, at paragraph 2, the ones that we just mentioned before, they all contain rates that are higher than the award, is that right?‑‑‑Yes. But in one case not very far past the award.
PN399
Yes, okay. Well just let me take you to paragraph 7 of your statement?‑‑‑Sure.
*** NICHOLAS DANIEL BLACKFORD XXN MR MCGREGOR
PN400
In light of what that paragraph says, and I'll read that out quickly:
PN401
The consolidated allowance is severely inadequate and detrimental to the construction industry, the civil construction industry.
PN402
I put it to you that's an exaggeration?‑‑‑No.
PN403
So let me take you to the list of disabilities covering work, you say, at paragraph 8, that AWU members perform regularly?‑‑‑Yes.
PN404
Am I right to say that not every employee under the award performs underground work for every hour of the day?‑‑‑That's correct.
PN405
So isn't it the case that there would also be employees covered by the award that would not go underground at all?‑‑‑Correct, but they may.
PN406
And let me ask you the same question with respect to hot work? Is it right to say that every employee working under the award or under award conditions, they're not getting exposed to hot work every hour of every day?‑‑‑That's correct.
PN407
And it's also correct to say that there would be some employees engaged under the award that would never be exposed to hot work conditions?‑‑‑Possibly, yes.
PN408
And, look, I've got a list here, because it's in your statement, and I'm not going to bore the Commission and my colleagues that are with us, but I think we can be pretty safe to say that we could go through and ask that same question for each of those allowances in your statement, is that right?‑‑‑Not each of them, no.
PN409
So - all right, we'll leave it there, but thank you very much for your evidence, Mr Blackford, and, if it please the Commission, no more questions.
VICE PRESIDENT HATCHER: All right. Any re-examination, Mr Crawford?
RE-EXAMINATION BY MR CRAWFORD [12.48 PM]
PN411
MR CRAWFORD: Just one or two quick questions, your Honour. Mr Blackford, you were taken to paragraph 2 of your statement, and you've listed some companies there, and I think your evidence is most of those companies have enterprise agreements, is that correct?‑‑‑Yes.
*** NICHOLAS DANIEL BLACKFORD RXN MR CRAWFORD
PN412
What's been, or what is your understanding regarding whether any employees, in the civil construction industry, are actually paid according to the award?‑‑‑What are they paid, according to the award?
PN413
No. What is your understanding regarding whether there are actually any employees in the industry that are paid according to the award?‑‑‑I don't understand the question, sorry.
PN414
VICE PRESIDENT HATCHER: I think you're being asked whether there's, particular in civil construction and perhaps focusing on underground work, are there actually employees that work under the payment structure and allowances in the award, as distinct from some enterprise agreement arrangements?‑‑‑Yes.
PN415
All right.
PN416
MR CRAWFORD: Thank you, your Honour. Nothing further.
VICE PRESIDENT HATCHER: All right, thank you for your evidence, Mr Blackford, you're excused.
<THE WITNESS WITHDREW [12.48 PM]
PN418
VICE PRESIDENT HATCHER: So that's all the evidence. Do the parties want any opportunity, we've obviously received full written submissions about this allowance issue, to make any further submissions about what additional conclusions, if any, should be drawn from the evidence we've heard today?
PN419
MS SOSTARKO: Your Honour, we would seek that opportunity but having the benefit, obviously, of looking at the transcript.
PN420
VICE PRESIDENT HATCHER: I didn't have that in mind. I don't think this is that complicated. If you want the opportunity I was going to suggest we adjourn and resume at 2 o'clock.
PN421
MS SOSTARKO: Thank you.
PN422
VICE PRESIDENT HATCHER: Do you want that opportunity?
*** NICHOLAS DANIEL BLACKFORD RXN MR CRAWFORD
PN423
MS SOSTARKO: Our preference would be, if we were to make closing submission that they be - - -
PN424
VICE PRESIDENT HATCHER: It's not a closing submission, it's simply any supplementary submission you want to make in respect of the evidence we've heard today. We've already received full witness submissions from you and we've read those and we understand them.
PN425
MS SOSTARKO: Thank you, your Honour. SO the answer is yes, thank you, your Honour, we'd appreciate that opportunity.
PN426
VICE PRESIDENT HATCHER: All right. Any other party want that opportunity?
PN427
MS PAUL: Your Honour, we would just want a very short statement, just to tie things together.
PN428
MR CRAWFORD: I wasn't going to request the opportunity but I would reserve the right to reply.
PN429
VICE PRESIDENT HATCHER: All right. We'll adjourn and resume at 2 pm.
LUNCHEON ADJOURNMENT [12.50 PM]
RESUMED [2.02 PM]
PN430
VICE PRESIDENT HATCHER: All right. Who would like to go first? Ms Sostarko?
PN431
MS SOSTARKO: Thank you, your Honour. Your Honours and Commissioners, the commission will be aware of our primary position on allowances, set out in our submission dated 24 November 2018 at paras 24 and 25. In short, we say that we would not oppose 4 and 5 per cent amounts proposed in the Commission's decision of 26 September 2018. That is a position we reiterate today and submit that there is no evidence before you that would cause the proposed amounts to change.
PN432
None of the witnesses before you gave any instances of actual workers that show the proposed changes would actually lead to workers truly being worse off.
PN433
VICE PRESIDENT HATCHER: I thought there was evidence that on some tunnel projects, although there is an agreement with the head contractor, tier 2 and tier 3 contractors may not be under an enterprise agreement and may be on the award perhaps with or without an over‑award arrangement.
PN434
MS SOSTARKO: Well, we would submit, your Honour, that there was no evidence to substantiate such an assertion; that that was an opinion of the witness - - -
PN435
VICE PRESIDENT HATCHER: No, it wasn't an assertion or opinion, it was evidence that they gave.
PN436
MS SOSTARKO: Certainly, but we would suggest that that evidence was not substantiated by any survey data or any cogent evidence that would demonstrate that that is in fact the case.
PN437
VICE PRESIDENT HATCHER: What, that there are subcontractors that are on the award?
PN438
MS SOSTARKO: I can only talk to the evidence that the witness gave and that is that - your Honour, we stand by the position that that evidence didn't illustrate how those particular workers will in fact be worse off.
PN439
VICE PRESIDENT HATCHER: Let's just start off with a proposition.
PN440
MS SOSTARKO: Yes.
PN441
VICE PRESIDENT HATCHER: Are you contesting the proposition that there may be subcontractors on some tunnel projects who aren't on an EBA? That's the starting point.
PN442
MS SOSTARKO: Well, certainly, but I can't obviously - and I would suggest that even in the fact that they weren't on an EBA, that doesn't necessarily - we have no data before us to say just how many of them are strictly award reliant. I grant that there may be a number of company agreements that are negotiated between the employees and the employer, but obviously I'm not privy to that information.
PN443
DEPUTY PRESIDENT GOSTENCNIK: Ms Sostarko, let's take the example of the tunnelling worker. The combined value of the industry allowance and the special allowance - bearing in mind the special allowance is a flat dollar amount, but at the lower levels it's about 4.5/4.6 per cent and might reduce at higher classifications. In respect of an award‑reliant employee who is performing tunnelling work the 4.5/4.6 per cent together with the 1.8 per cent, as provided for a 21(a), would seem to be - the allowance that we have made provision for would seem to be less than the value of those three together.
PN444
MS SOSTARKO: Well, again I would go back to the point that - I think the Commission is well aware how our sector operates and we would submit that the majority of those workers would in fact be covered by an agreement. That said, I would point the Commission back to its statement at paragraph 369 of the decision whereby the Commission makes reference that it's not obviously possible in this exercise to ensure that no employee will be worse off in any circumstance, nor is it possible to ensure that some employees will not be better off under the current system; but our general objective is to simplify the current system on the basis that it will generally be cost‑neutral for workforces over the longer term. So, your Honour, that would be my response to that.
PN445
Obviously I understand where you're going in terms of that question, but I would suspect that there would be very few civil tunnelling workers that wouldn't be covered by an enterprise agreement.
PN446
VICE PRESIDENT HATCHER: If you start with the proposition that the industry allowance and the special allowance by themselves, which everyone gets, adds up to 4.5 or 4.6 per cent, then obviously everybody to whom the 4 per cent proposition would apply would be worse off. That is, that's not a swings and roundabouts proposition; everybody is worse off, aren't they?
PN447
MS SOSTARKO: So the 5 per cent obviously would only apply to those workers because the 4 per cent proposition is for residential workers.
PN448
VICE PRESIDENT HATCHER: Yes. I'm not confining that question to civil construction.
PN449
MS SOSTARKO: Yes.
PN450
VICE PRESIDENT HATCHER: I'm just talking about as a general proposition.
PN451
MS SOSTARKO: Yes.
PN452
VICE PRESIDENT HATCHER: To the extent that we had a 4 per cent proposition applying to anybody, if that 4.5/4.6 per cent number is correct - and it seems to be - then it's not a swings and roundabouts situation; everybody would be worse off, wouldn't they?
PN453
MS SOSTARKO: Sorry, can I clarify? Are you saying as a compromise position - is that what you're proposing - in the event that you were to find a middle figure? Is that what you're saying, your Honour?
PN454
VICE PRESIDENT HATCHER: No, no. We promulgated two figures, depending upon what sector you were in.
PN455
MS SOSTARKO: Sorry - - -
PN456
VICE PRESIDENT HATCHER: 4 per cent and 5 per cent.
PN457
MS SOSTARKO: Yes.
PN458
VICE PRESIDENT HATCHER: For those who are in the sector to which the 4 per cent would apply, they would all be worse off on the basis that the industry allowance and the special allowance add up to about 4.5 or 4.6 per cent, would they not?
PN459
MS SOSTARKO: Well, we've had a detailed look at those, the concept that you're proposing, and based on the figures throughout this process, the combined unions have proposed that in our analysis of those - and this is outlined at appendix 4 of our submission in reply, dated 28 November - that in fact if you consider it to be a 50/50 split between residential and non-residential workers, we have said that it's basically a break even, even based on the union's proposed figures.
PN460
VICE PRESIDENT HATCHER: You do that by averaging residential with non‑residential?
PN461
MS SOSTARKO: That's right.
PN462
VICE PRESIDENT HATCHER: Why wouldn't you adopt an approach that says, in effect, all residential workers take the hit to achieve this proposal? That is, we have raised a discrete number for residential worker on the basis that they're different; they don't attract many of the allowances. It seems to me that if 4.5 to 4.6 per cent is right - and I think it is - they, on that proposal, would all be worse off. I mean, that's just a matter of simple maths, isn't it?
PN463
MS SOSTARKO: Well, all I can say, your Honour, is that we think the percentages where the Commission lands, based on this analysis, is about right. It is about right in terms of - - -
PN464
VICE PRESIDENT HATCHER: But can you answer my question: would the residential workers all be worse off if they switched to a straight 4 per cent?
PN465
MS SOSTARKO: All be worse off?
PN466
VICE PRESIDENT HATCHER: Yes, all of them.
PN467
MS SOSTARKO: I think I'll let my colleague answer that question.
PN468
MR McGREGOR: I might be able to answer that question a bit better, your Honour - Sam McGregor from Master Builders. I'm the one that prepared the numbers within our submission, so I think I can better speak to them. The point is that within our submission the fundamental assumption is that the union's representation of the way that allowances are payable and who gets allowances under what circumstances, is accepted. We don't accept that proposition by the union because we haven't been told when and how those allowances are payable. They have just presented us with numbers.
PN469
DEPUTY PRESIDENT HAMILTON: Mr McGregor, if I'm a construction worker in the housing sector, under the award as a minimum I receive $7.70 plus the industry allowance, do I not?
PN470
MR McGREGOR: Correct.
PN471
DEPUTY PRESIDENT HAMILTON: The combination of those two figures is more than 4 per cent, is it not?
PN472
MR McGREGOR: I would take your word for that one, if that's the - - -
PN473
DEPUTY PRESIDENT HAMILTON: Well, do you want to get out a calculator?
PN474
MR McGREGOR: I can, but, yes, look, I would accept that it is.
PN475
VICE PRESIDENT HATCHER: I think that number appeared in every single AW statement nobody took issue with it.
PN476
MR McGREGOR: Yes.
PN477
DEPUTY PRESIDENT GOSTENCNIK: So, as a consequence, we've fixed the amount at 4 per cent, which is less than the combined figure of those two allowances which are always paid. So doesn't it follow that if I'm a construction worker in the housing sector, I am worse off?
PN478
MR McGREGOR: I think that our submissions and the union's submissions speak to that.
PN479
DEPUTY PRESIDENT GOSTENCNIK: Forget about that. Just - - -
PN480
MR McGREGOR: They have been simplifying it to that extent.
PN481
DEPUTY PRESIDENT GOSTENCNIK: We haven't provided for one allowance; we have provided for two. Focus on the housing sector - - -
PN482
MR McGREGOR: Yes.
PN483
DEPUTY PRESIDENT GOSTENCNIK: - - - for which we have fixed an allowance of 4 per cent as a provisional view. Now, if workers in that sector as a minimum qualify for the 7.70 and the 3.7 per cent, under our proposal they are worse off, are they not?
PN484
MR McGREGOR: Yes, that's right. Because I don't have the numbers in front of me and I don't have a calculator, I have to look at what 7.70 equates to as a percentage.
PN485
DEPUTY PRESIDENT HAMILTON: Do you want to look at the numbers and respond in writing say by close of business tomorrow?
PN486
MR McGREGOR: I would appreciate that and we're more than happy to do that.
PN487
DEPUTY PRESIDENT HAMILTON: Because you don't appear to be abreast of the assumptions and so on. Perhaps you need to look at them.
PN488
MR McGREGOR: Why I stood to speak to that evidence, your Honour, is that I'm aware of the way that these assumptions have played out in the union's evidence and I just wanted to make the point that - - -
PN489
VICE PRESIDENT HATCHER: Which assumptions?
PN490
MR McGREGOR: So the assumptions on the way that disability allowances are paid throughout the residential sector.
PN491
VICE PRESIDENT HATCHER: No, but we're only talking about two allowances; the industry allowance and the special allowance.
PN492
MR McGREGOR: I might pass to my colleague from the Housing Industry Association - - -
PN493
VICE PRESIDENT HATCHER: Yes, all right.
PN494
MR McGREGOR: - - - who can probably speak to the residential spectre more specifically than I can.
PN495
VICE PRESIDENT HATCHER: Ms Adler?
PN496
MS ADLER: Thank you, your Honour. Just to assist, we would agree with your calculation. What we would say in response, however, and what we've outlined in our reply submission, is that this exercise shouldn't simply be one of adding things up. This was a process of rationalisation of allowances. If you simply just add them up, you're not actually ending up with any better situation than you've got to now. You just may as well add up the hundred allowances that are in the award.
PN497
What we would say to the exercise that we've all tried to undertake, it's one of rationalisation and that the disadvantages associated with industry allowance and the special allowance, there is overlap between the two of them. The other thing I would say is that the flat rate of $7.70, which is the special allowance, is a flat rate. It doesn't change over time. Once you enclose the all‑purpose calculation in relation to the percentage of the standard rate, that will start to increase every year with the minimum wage increase.
PN498
While on simple maths the industry and the special allowance is more than 4 per cent, what we would say is we're talking about a bigger picture issue here which is to do with the rationalisation of the allowances.
PN499
DEPUTY PRESIDENT HAMILTON: Are you trying to say that there is some sort of swings and roundabouts? A diminution elsewhere leads to an increase somewhere else; is that what you're trying to say?
PN500
MS ADLER: Yes, your Honour.
PN501
DEPUTY PRESIDENT HAMILTON: It's a package and one bit is favourable to one side, and another bit is favourable to the other side.
PN502
MS ADLER: Yes, your Honour.
PN503
DEPUTY PRESIDENT HAMILTON: Well, you may need to flesh that out if you're going to win the argument, if I could be so bold.
PN504
MS ADLER: I would suggest that in our 28 November submission that we did attempt to do that when we attempted to reply to the propositions put by the unions in support of a different approach, so we continue to rely on that; bit if there are issues that the bench wishes us to further address, we're happy to do that, too.
PN505
VICE PRESIDENT HATCHER: All right.
PN506
MS ADLER: Thank you, your Honour.
PN507
VICE PRESIDENT HATCHER: I mean, that's assuming there's no other allowance. I mean, even the 4 per cent, even allowing some discount for the fact that the special allowance is a flat rate and it won't increase in the future, you would already have a very large discount for that and that wouldn't take into account any other allowance being payable in any circumstance.
PN508
MS ADLER: That is correct, your Honour.
PN509
VICE PRESIDENT HATCHER: All right. Thank you.
PN510
MS ADLER: Thank you.
PN511
VICE PRESIDENT HATCHER: Ms Sostarko, where were you?
PN512
MS SOSTARKO: Thank you, your Honour. I guess all that I'd like to conclude with saying is that - as I've said, I'll reiterate the point that the sector is very much reliant upon - or as in the presence of enterprise bargaining agreements. The evidence that we've heard today has not in any way demonstrated the deficiencies in the Commission's proposal that they would assert.
PN513
If anything, all that it did illustrate is that the propensity for workers to be paid under these agreements at significantly higher rates than those of the award - and that was the evidence of Mr Callinan who said that in fact workers are quite often paid double that of the award rates, and those who were not actually even covered under a union agreement were also paid above award rates.
PN514
I think that there would be nothing further for us to add. We would be happy to take on notice that question with respect to residential. Unless you have any further questions, that concludes our submissions.
PN515
DEPUTY PRESIDENT HAMILTON: You may need to answer now. It's in all the witness statements. You have had the witness statements for some time. You need to deal with it now or that's it, perhaps.
PN516
VICE PRESIDENT HATCHER: Would your answer be any different from Ms Adler's?
PN517
MS SOSTARKO: Look, we do rely on our submissions and we would seek to rely on those.
PN518
VICE PRESIDENT HATCHER: All right. Thank you. Ms Paul?
PN519
MS PAUL: Your Honour, the purpose of the evidence that - or the purpose of my submissions or comments are really around the fact that the evidence was put forward by the AMWU and the AWU to demonstrate what was happening in the industry, but also to demonstrate that the amounts suggested by the Commission - particularly in civil construction, because that is all the evidence before the Commission - in civil construction was insufficient and detrimental to the industry.
PN520
What we argue today is that the evidence has not met the basic test in terms of disturbing the proposition put by the Commission in relation to that. The evidence can be broadly summarised that you have some employees that are going to be worse off - and the Commission has already contemplated that. This Commission has already contemplated that in its decision - and it's possible that some employees would therefore be better off - well, not better off, but would not be worse off.
PN521
The main intent around the Commission's decision was this issue of being cost‑neutral, so within that context for the AMWU and the AWU to seek to displace that for the purposes of the quantum for civil construction - and bearing in mind civil construction also applies to building - they've come up with evidence that focuses on underground tunnelling. It's a very segment of the entire industry and the allowance that would be applicable for the industry if you look at building and if you look at civil construction.
PN522
So within that perspective we say that their evidence is so highly general and can fall within the category of opinions provided by union officials. There has been no survey undertaken with AWU employees or AMWU employees. The AMWU evidence is purely a description about what an air-conditioning or mechanic in a refrigeration - an air-conditioning tradesperson, sorry, or a refrigeration mechanic might actually do and goes towards things like disabilities, like receiving cuts, et cetera.
PN523
One of the pieces of evidence that came out from Mr Isberg was in relation to the disability that he saw around heights, but the example he provided in relation to it was around multi‑storey, because it is a multi‑storey car park. So, in effect, some of the evidence has got to be looked at within the context of - or all the evidence, we say, has got to be looked at in the context of individuals providing their evidence out of context of whether or not they've done any work and some vague notion of the experience of what people do.
PN524
What they've all failed to do is identify how long people have worked in a particular disability and, for example, all of them that provided evidence around underground did not identify to any great length how many employees you're talking about in a business that would be undertaking underground work. There's no evidence to say whether that was for the whole day, half day or even whether any of the other allowances were applicable. They accepted that not all the allowances were cumulatively paid.
PN525
One of the telling features of all of that is that the evidence also was clear that those employees that are paid under enterprise agreements - and certainly it was accepted by most of the witnesses - was the fact that in tunnelling most of the witnesses accepted that there would be a vast majority of employees that would be covered by enterprise agreements and the enterprise agreements paid substantially above. Forgive me, but I can't recall specifically which, but there was one witness that conceded the issue that employees that were not covered by enterprise agreements were also paid above award or had general payments that were greater than award terms, which may be sufficient.
PN526
In summary, this is the AWU's evidence and the AMWU's evidence. They are seeking to displace the 5 per cent. They needed to provide evidence that was more cogent around, at the very least, walking through a process of what the employees were doing and, if tunnelling was the example, they should have actually provided more detail than they have at the moment. What they all did accept and all their evidence shows, they've got major operators in the country in the civil construction space working in - undertaking the tunnel work and employing people accordingly.
PN527
So we say that the evidence may be illustrative about what employees - the nature of the work, what employees may actually do, but it's not evidence about the deleterious or negative effect, or in fact how long employees work. To some extent that is an impossibility, but there was no attempt made by either of the unions to demonstrate that in their evidence. This is not a discussion around their submissions. So we say that for the purpose of civil construction, our view is that the evidence should be given little to no weight.
PN528
VICE PRESIDENT HATCHER: In relation to the air-conditioning allowance, is there some equivalent allowance in the Manufacturing Award?
PN529
MS PAUL: I'm sorry, your Honour, I don't have that at hand. I should know this, but I don't. I'm happy to respond by tomorrow, if you wish, in relation to that.
PN530
VICE PRESIDENT HATCHER: No, we'll just look. I only say that because the AMWU's submissions said the allowance has its origin in a Metal Industry Award decision.
PN531
MS PAUL: I believe that there was a Metal Industry Award - there used to be the old Metal Industry On‑site Award and there was an allowance of similar nature that was then incorporated, but it was done in a fairly different way to - I just unfortunately don't have that off the top of my head.
PN532
VICE PRESIDENT HATCHER: All right. Thank you. Mr Crawford, do you make a submission?
PN533
MR CRAWFORD: Yes, just briefly, your Honour. In terms of the relevant figures, as the bench has already pointed out, the current value of the industry allowance and the special allowance is $38.68 per week. The provisional, I guess, proposal to increase the industry allowance to 5 per cent would equate to $41.87 per week, so that's an increase of $3.19 per week to what employees already all get.
PN534
We make the point that in relation to, for example, an underground worker, there are two underground allowance rates; there is a slightly lower rate I think if you do more than four or five days underground. Even using that lower rate, 38 hours at that rate, which is 40 cents per hour, equates to $15.20 per week - - -
PN535
DEPUTY PRESIDENT GOSTENCNIK: Is there a typographical error in the award? Have you got a copy of the award there, Mr Crawford?
PN536
MR CRAWFORD: Yes.
PN537
DEPUTY PRESIDENT GOSTENCNIK: Clause 21.3(b), the word "no" I think shouldn't be there, otherwise it makes no sense.
PN538
MR CRAWFORD: Sorry, which part of 21.3?
PN539
DEPUTY PRESIDENT GOSTENCNIK: 21.3(a) deals with the allowance generally and then 21.3 provides an additional allowance. It just seems to be payable for an employee who is required to work no more than four days.
PN540
MR CRAWFORD: Yes. I think perhaps if you're doing more than four days you get the allowance in (a).
PN541
DEPUTY PRESIDENT GOSTENCNIK: I see.
PN542
VICE PRESIDENT HATCHER: Is that the way it works? If you work less than four hours, you get an additional .4 on top of the 1.8?
PN543
MR CRAWFORD: That's my understanding.
PN544
DEPUTY PRESIDENT GOSTENCNIK: I see.
PN545
VICE PRESIDENT HATCHER: You have raised this problem, but how do you want us to deal with it? I mean, you're asking us to bump up the 5 per cent by reason of underground workers. That then creates a benefit that goes to everybody who might never go anywhere near underground work.
PN546
MR CRAWFORD: Well, if I could just briefly - before I address that - continue with the submission, because that was an example for an underground worker working 38 hours per week and they would currently, on the lower tunnelling rate, get $15.20. The proposal of 5 per cent equates to $3.19 per week. I would make the point that that is only the underground allowances. Some of the witnesses made it clear that other confined space, for example, wet work, might apply in addition to the underground allowance; so that's underground workers. In addition, if you look at the value of the various allowances in the award at the moment, a rough sort of average figure of their value is 71 cents per hour.
PN547
VICE PRESIDENT HATCHER: So where does that figure come from?
PN548
MR CRAWFORD: For example, that's the figure for cold work, dirty work, hot work, toxic work, wet work. I mean, there are various allowances that are higher than that.
PN549
VICE PRESIDENT HATCHER: The 3.2 rate? The 3.2 per cent?
PN550
MR CRAWFORD: I would have to check, but I suspect that's the case. So obviously there are a number of allowances that are higher and some that are lower, but there are several that are out that 71 cents per hour rate. Now, using the Full Bench's proposal of an increase of $3.19 per week, applying that 71 cents per hour figure, you reach the value of $3.19 per week after 4.49 hours of work. That's obviously only for one allowance. There could be several that apply. We say those figures highlight that the proposal of only 5 per cent is too low and we think there is enough evidence before the Full Bench to justify a higher amount.
PN551
VICE PRESIDENT HATCHER: We have no evidence one way or the other to suggest the degree to which any of those allowances are paid. I mean, I can understand an underground worker is on an underground project and they will get it week after week after week while the project is going on, but when you get things like hot work, wet work and dirty work, we have no evidence whatsoever as to the frequency of those payments, do we? I don't know whether they get paid a few hours every week or they get paid once in a blue moon.
PN552
MR CRAWFORD: Well, I guess the - I mean, it's a fair point. Whether there was an easy way of addressing it may be another question, because invariably it depends on the conditions. I mean, if it rains it might impact upon when the wet allowance is payable. The type of work, you know, is going to impact in terms of whether you're working amongst fumes, you know, in a confined space or whatever.
PN553
VICE PRESIDENT HATCHER: It might have been a simple - and this applies to both sides - asking with respect to a workers or group of workers how many times they received X allowance in the last year.
PN554
MR CRAWFORD: That may well be - - -
PN555
VICE PRESIDENT HATCHER: I don't think that was an overly hard thing to do, but, you know - - -
PN556
MR CRAWFORD: I take your point, your Honour. The only thing I can really say is that there is evidence before you from a number of AWU officials about which of these allowances they do believe workers commonly experience disabilities that the allowances are paid for and we think that is sufficient to show that the 5 per cent rate is not enough, and it needs to be increased. Obviously there is a combined union proposal in terms of what that should look like, but I suspect that the bench will have a look and form its own view.
PN557
Just briefly, aside from the calculations, the only other point I would make is that the award is clearly important in three areas. There is evidence that a lot of workers are actually not covered by agreements, particularly the smaller businesses; maybe labour hire on big jobs or even smaller businesses in general. There is also evidence that for some enterprise agreements the award is incorporated, so whatever you do with allowances may have a flow‑on effect to those agreements.
PN558
Some AWU officials, I guess, made the not surprising point that the award is always relevant for EA negotiations because it is the safety net; it is the reference point. That was all I intended to say.
PN559
MS PAUL: Your Honour, if I may, there was actually - I just want to correct one thing. There was no evidence about what the labour hire employees were being paid, in terms of that submission.
PN560
VICE PRESIDENT HATCHER: Mr Maxwell, did you want to make submission?
PN561
MR MAXWELL: Your Honour, members of the bench, I only want to make a very brief submission given that the witnesses were not our witnesses. That is, Ms Adler suggested that what the unions are seeking to do is just add up all of the allowances and then arrive at a rate, but that is not the position of the unions and that's set out in paragraphs 28 to 29 and paragraph 31 of our 14 November 2018 submission.
PN562
The only other point I wish to raise - and I have raised it with the Master Builders Association - is that in their submission of 28 November, in attachment 1, they refer to the ABS statistics. The information that they provide there is wrong; the figure of 305 billion is not the total labour costs. This is actually the total income of the industry and, if necessary, I can provide the appropriate references to the ABS stats to show that, but I just wanted to raise that to clarify it.
PN563
VICE PRESIDENT HATCHER: All right. Thank you. Mr Miller in Sydney?
PN564
MR MILLER: Thank you, your Honour. Look, the AMWU would just begin by pointing out that we continue to repeat and rely on our submissions that we filed in November of last year, and we support the submissions of the CFMMEU and the AWU. I'll just address your Honours and Commissioners briefly in relation to the air-conditioning allowance.
PN565
Currently the combined value of the industry allowance and the special allowance - as there has been some discussion of this point today - is about 4.6 per cent. Currently the allowance paid to air-conditioning tradespeople and refrigeration mechanics is a further 7.9 per cent. When you add all of these allowances up, that equates to 12.5 per cent.
PN566
For an air-conditioning tradesperson such as Mr Isberg, whose evidence you have heard today, who works in other than residential construction - if you applied the percentage proposed 5 per cent for work in the civil construction industry, this would mean a reduction of 7.5 per cent for air-conditioning tradespeople such as Mr Isberg. The loss of course would be greater if further allowances applied.
PN567
The evidence of Ms Isberg, as outlined in his statement and as hasn't been really challenged in detail today by the employee groups, is that the work of air-conditioning tradespeople is highly specialised. Not only do you have to go to TAFE and become qualified as a first class sheet metal worker, tradespeople - - -
PN568
DEPUTY PRESIDENT GOSTENCNIK: Mr Miller, did you say that - your submission is based on a loss that Mr Isberg would suffer. Did I hear you correctly?
PN569
MR MILLER: That is not what was intended to be put. Certainly Mr Isberg himself faces no such potential pay cut personally.
PN570
DEPUTY PRESIDENT GOSTENCNIK: Yes.
PN571
MR MILLER: Mr Isberg is an employee of the New South Wales branch of the AMWU. He is no longer an air-conditioning tradesperson. I'm sorry if that submission caused any confusion.
PN572
DEPUTY PRESIDENT GOSTENCNIK: That's all right.
PN573
MR MILLER: It was certainly not my intent. Rather, the point is that air-conditioning tradespeople covered by the award who perform work such as outlined by Mr Isberg today could potentially be facing a cut of up to 7.5 per cent.
PN574
DEPUTY PRESIDENT GOSTENCNIK: What do you base that on? If you don't base it on the evidence of Mr Isberg - - -
PN575
MR MILLER: Well, the combined value of the industry allowance and the special allowance is 4.6 per cent. The value of the air-conditioning allowance - sorry, the value of the allowance which is paid to air-conditioning tradespeople and refrigeration mechanics is 7.9 per cent. So when you add 7.9 per cent to the 4.6 per cent, you get 12.5 per cent and the proposal for civil construction is a proposal of an allowance of 5 per cent; so when you take 5 per cent off the 12.5 per cent, you get a 7.5 per cent pay reduction.
PN576
VICE PRESIDENT HATCHER: Mr Miller, any installation or maintenance on an air-conditioning system in a house or building or structure is covered by this award, is it?
PN577
MR MILLER: That's my understanding. That's correct. I will just point out though that the air-conditioning allowance is paid in lieu of various other special rates which are found in the award, including the special rate relating to insulation, but also - for your Honours' and Commissioners' reference - special rates in relation to hot work, cold work, confined spaces, wet work, dirty work, asbestos eradication and height work.
PN578
So the submission of the AMWU is not that you would get the air-conditioning allowance and/or the special rates. Rather, the air-conditioning or refrigeration mechanic tradesperson allowance is paid in lieu of various special rates and for various other disabilities and skills which are peculiar to the work of an air-conditioning tradesperson or a refrigeration mechanic.
PN579
Your Honours and Commissioners, unless are there any further questions that's really all that I wanted to say today; just to outline the basis of the AMWU's concern about what is being proposed in terms of the 4 per cent and particularly the 5 per cent proposed industry allowance for the civil construction industry. In summary, the evidence of Mr Isberg is that there are various disabilities associated with the work of air-conditioning tradespeople. We say that those disabilities subsist.
PN580
The employees haven't brought any evidence to contradict that and on that basis we would say that there's no justification for a reduction of 7.5 per cent for such tradespeople.
PN581
VICE PRESIDENT HATCHER: Thank you.
PN582
MR MILLER: Thank you.
PN583
VICE PRESIDENT HATCHER: Ms Ambihaipahar, did you want to make a submission?
PN584
MS AMBIHAIPAHAR: The CEPU supports the submissions provided by the union parties and at this stage no further submissions from us. Thank you.
PN585
VICE PRESIDENT HATCHER: All right. In Brisbane, did you want to make a submission?
PN586
MS REGAN: No, we don't have anything additional to add to the employer organisations' submissions and we support the submissions made by MBA, HIA and AIG.
PN587
VICE PRESIDENT HATCHER: All right. We thank the parties for their submissions. We will reserve our decision of this matter and we will now adjourn.
ADJOURNED INDEFINITELY [2.37 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PAUL JOHN CRADDEN, AFFIRMED.............................................................. PN37
EXAMINATION-IN-CHIEF BY MR CRAWFORD......................................... PN37
EXHIBIT #PC WITNESS STATEMENT OF PAUL JOHN CRADDEN DATED 14/11/2018................................................................................................................................... PN44
CROSS-EXAMINATION BY MS SOSTARKO................................................. PN45
RE-EXAMINATION BY MR CRAWFORD...................................................... PN92
THE WITNESS WITHDREW.............................................................................. PN95
ANTHONY WILLIAM CALLINAN, AFFIRMED......................................... PN100
EXAMINATION-IN-CHIEF BY MR CRAWFORD....................................... PN100
EXHIBIT #AC WITNESS STATEMENT OF ANTHONY WILLIAM CALLINAN DATED 14/11/2018............................................................................................................... PN108
CROSS-EXAMINATION BY MS PAUL.......................................................... PN109
THE WITNESS WITHDREW............................................................................ PN157
KADE ANTHONY WAKEFIELD, AFFIRMED............................................. PN172
EXAMINATION-IN-CHIEF BY MR CRAWFORD....................................... PN172
EXHIBIT #KW WITNESS STATEMENT OF KADE WAKEFIELD DATED 14/11/2018 PN180
CROSS-EXAMINATION BY MS PAUL.......................................................... PN181
RE-EXAMINATION BY MR CRAWFORD.................................................... PN210
THE WITNESS WITHDREW............................................................................ PN213
SEAN BURKE, AFFIRMED............................................................................... PN223
EXAMINATION-IN-CHIEF BY MR CRAWFORD....................................... PN223
EXHIBIT #SB WITNESS STATEMENT OF SEAN BURKE DATED 12/11/2018 PN231
CROSS-EXAMINATION BY MS PAUL.......................................................... PN232
CROSS-EXAMINATION BY MS SOSTARKO............................................... PN245
THE WITNESS WITHDREW............................................................................ PN257
STEPHEN ISBERG, AFFIRMED...................................................................... PN264
EXAMINATION-IN-CHIEF BY MR MILLER............................................... PN264
EXHIBIT #SI WITNESS STATEMENT OF STEPHEN ISBERG DATED 14/11/2018 PN273
CROSS-EXAMINATION BY MS PAUL.......................................................... PN274
THE WITNESS WITHDREW............................................................................ PN292
RONALD HAYDEN, AFFIRMED..................................................................... PN297
EXAMINATION-IN-CHIEF BY MR CRAWFORD....................................... PN297
EXHIBIT #RH WITNESS STATEMENT OF RONNIE HAYDEN DATED 13/11/2018 PN305
CROSS-EXAMINATION BY MS PAUL.......................................................... PN306
CROSS-EXAMINATION BY MS SOSTARKO............................................... PN332
THE WITNESS WITHDREW............................................................................ PN353
NICHOLAS DANIEL BLACKFORD, AFFIRMED........................................ PN356
EXAMINATION-IN-CHIEF BY MR CRAWFORD....................................... PN356
EXHIBIT #NB WITNESS STATEMENT OF NICHOLAS BLACKFORD DATED 14/11/2018................................................................................................................................. PN364
CROSS-EXAMINATION BY MR McGREGOR............................................. PN365
RE-EXAMINATION BY MR CRAWFORD.................................................... PN410
THE WITNESS WITHDREW............................................................................ PN417