TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 63866-1

SENIOR DEPUTY PRESIDENT WATSON

AM2011/49

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

Application by Fair Work Australia
(AM2011/49)
Building and Construction General On-site Award 2010

(ODN AM2008/15)
[MA000020 Print PR986361]]




Melbourne

TUESDAY, 11 OCTOBER 2011

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, good morning. I'll take appearances, perhaps starting in Melbourne.

PN2

MR S. MAXWELL: If the tribunal pleases, my name is Maxwell, initial S. I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Maxwell. In Sydney in relation to this matter, AM2011/49?

PN4

MR R. CALVER: Good morning, Senior Deputy President, Calver, initial R., Master Builders Australia, and with me is MR G. THOMAS from the Master Builders Association of New South Wales.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Calver.

PN6

MR A. KENTISH: If it please, Kentish, initial A., for the CEPU.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN8

MR G. NOBLE: If it pleases, Noble, initial G., for the AMWU.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Noble.

PN10

MR S. SMITH: If it pleases the tribunal, Smith, initial S., with MR G. VACCARO, for the Australian Industry Group.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN12

MS A. MATHESON: If it pleases the tribunal, my name is Matheson, initial A., appearing on behalf of the Housing Industry Association.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Matheson. Very well. I think that's it. We received only two pieces of correspondence in relation to this matter, which is - acceded to the request in that correspondence to list this issue on our own motion, and it goes to the comma in clause 25.2 - the effect of its removal. Mr Maxwell, have you got anything you want to add?

PN14

MR MAXWELL: Thank you, your Honour. Just briefly, that this came to our attention by the Fair Work Ombudsman, who notified the union that the online version of awards had been altered by the insertion of the comma, and effectively this change is the whole way in which the clause applies.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR MAXWELL: Effectively, it means that - with the insertion of the comma, it means that only those employees who are engaged in mechanical engineering who report to the (indistinct) are entitled to (indistinct) allowance, which is not the intention of the clause.

PN17

In researching that, it would appear that, whilst the matter was - the removal of the comma was identified during the discussion of the transitional - sorry, under the residual variations, that the matter was not actually contained within the order that was made reflecting those residual variations.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. I think there was some agreement with the CFMEU and MBA in principle but different proposals to rectify the problem and that - - -

PN19

MR MAXWELL: That's correct, your Honour. And whilst we have had some discussion about whether we can alter the wording of the clause, I think at this stage the safest way of dealing with the matter is by removing the comma and making the order retrospective to the date of the order PR994519.

PN20

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Mr Calver, I think you're the other correspondent.

PN21

MR CALVER: Yes, thank you, your Honour. We provided a letter to the president - a letter dated 27 September 2011 - which reinforced the submissions of the CFMEU and which noted that the interpretation of the provision without the misrelated punctuation is how we've been interpreting the award and how we've published versions of the award for some considerable time.

PN22

We would support the proposition put by Mr Maxwell that the order be retrospective to the residual orders. This matter was discussed during the residual variation process but did not become part of the order.

PN23

I can also confirm that we've been having discussions with the CFMEU about how the clause in itself might be simplified in its wording. Those discussions are well advanced but have not reached finality. I'll just say that the second comma within clause 25.2 means the provision was internally contradictory and, because of that, it doesn't make sense for it to be there and we would urge the tribunal to remove it as the award has been interpreted in that manner for a considerable period, if it please the tribunal.

PN24

THE SENIOR DEPUTY PRESIDENT: I'm sorry, the date you were proposing was 31 March 2010, was it?

PN25

MR CALVER: I'll refer to the particular order. The decision of the tribunal that deals with this matter was dated 31 March 2010. It has the number PR994519.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR CALVER: We believe that the change sought today should be consonant with the date of that decision and order, given that a publicly available version of the award from that time showed the provision without the extraneous comma and that it was only recently that the Fair Work Ombudsman said that it was correcting - and I put that in inverted commas - the web site to show the comma being included.

PN28

THE SENIOR DEPUTY PRESIDENT: No, I think that was done administratively here, essentially to follow the approach of the full bench in respect to residual variations - of not acceding to contested matters without full debate and decision, and that arose because of the different means of resolving error back in March. But in any case, it doesn't matter where it came from, the comma was reinserted administratively here on 26 September. Yes.

PN29

MR CALVER: Yes. The substance of the clause is contradictory if it remains and - - -

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR CALVER: - - - essentially that aspect (indistinct) substance which we would draw to the tribunal's attention, and we believe this a clear case of where an error on the face of the award can be corrected and wasn't intended to be a part of the original variations, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that. Yes. Anyone else wish to be heard on this?

PN33

MR SMITH: Your Honour, we have no objection to the variation that's been proposed.

PN34

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Smith. The silence I think indicates there are no other objectors.

PN35

MR ..........: Correct.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN37

MR NOBLE: Your Honour (indistinct) version of the clause, but after some consultation with the other parties, we think that at the moment the most appropriate thing to do is just delete the comma.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. That's the safest course at this point. Thank you, Mr Noble.

PN39

MR MAXWELL: Your Honour, there's just one point which I just want to raise in regard to the operative dates. I'm not sure of the operative date of the order that we referred to that was made on 31 March 2010. I think the operation date of that order, given that it was a residual variation to the award, may have been prior to that date.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR MAXWELL: So we would seek the same operative date applied within that order.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. That's consistent with what Mr Calver has put. Yes, very well. I will issue a fuller decision. It's my view that the errant comma was inserted by error, departing from the approach of the modernisation full bench of incorporating the effect of pre-modern awards unless there's good reason not to do so, and it does create some uncertainty. The error will be rectified by the removal of the comma with effect from the date indicated in the residual variation order in print PR994519. As I said, I'll issue an order to that effect and fuller reasons as soon as possible.

PN43

I'll adjourn, I think, till 10.00 in case there are any others who wish to join us on the media matters that arise in 39.
<ADJOURNED [9.51AM]