TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1032856-1

SENIOR DEPUTY PRESIDENT ACTON

AM2011/55

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

Application by Australian Industry Group, The
(AM2011/55)
Manufacturing and Associated Industries and Occupations Award 2010

(ODN AM2008/5)
[MA000010 Print PR985120]]




Melbourne

10.14 A.M., WEDNESDAY, 22 FEBRUARY 2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take the appearances, please.

PN2

MR S. SMITH: I appear for the Australian Industry Group.

PN3

MS S. HAYNES: I appear for Australian Business Industrial.

PN4

THE SENIOR DEPUTY PRESIDENT: In Sydney?

PN5

MR S. MAXWELL: I appear on behalf of the CFMEU.

PN6

MR M. DECARNE: I appear on behalf of the AWU.

PN7

MS S. TAYLOR: I appear on behalf of the AMWU.

PN8

THE SENIOR DEPUTY PRESIDENT: Mr Smith, this is your application.

PN9

MR SMITH: Yes, thank you, your Honour. As you're aware we filed two submissions in support of the application. An initial submission and a reply submission that we filed yesterday. We would like to rely on those submissions rather than wasting the Tribunal's time going through every point I would like to highlight a few key issues.

PN10

THE SENIOR DEPUTY PRESIDENT: Just before you do Mr Smith (indistinct) I will mark the (indistinct) 2012.

EXHIBIT #AIG1 SUBMISSION OF APPLICANT FILED JANUARY
EXHIBIT #AIG2 SUBMISSIONS OF APPLICANT FILED 21/02/2012

PN11

MR SMITH: Thank you, your Honour. The application relates to two issues, firstly a proposed variation to clarify the coverage of the award as it relates to products manufactured out of carbon fibre, graphite and other modern materials and secondly a proposed variation to clarify the coverage of the award as it relates to recycling of the products and materials that themselves are covered by the award. So the application does not seek to extend the coverage of the award and intrude upon the coverage of other awards, it is an application to remove uncertainty and/or ambiguity and in one of those areas we would submit that it was an oversight tor an error on the part of the parties that some wording was omitted from the award when it was made.

PN12

The application is primarily pressed under section 160 but we also believe that it meets the requirements of 157 of the Act. In the submissions of some of the other parties there was some suggestion that there should be more consultation. So we took the trouble of setting out in some detail in that reply submission yesterday the consultation process that we went through from the time of those proceedings before your Honour where we raised this issue about other materials in response to a proposal of the CFMEU to vary the award around refractory materials.

PN13

After those proceedings which were in October we had some discussions with the AMWU whom we saw as the principal union involved in this area of fabrication of products from these modern materials and we filed our application a couple of days before Christmastime got away from us but we did with the MTFU schedule a meeting for 2 February when everyone was back from break and that was primarily around discussions for the two year review, but we always envisaged that we would discuss this application then. The meeting proceeded on 2 February and the CFMEU in particular expressed some concerns about potential overlap, particularly regarding concrete and timber composite materials and the recycling of concrete, timber and quarrying products.

PN14

We were hopeful that we would be able to resolve those concerns and therefore we had some further discussions with Mr Maxwell and we put a proposal to the CFMEU which I have included in that submission we have sent through. To date, as we understand it, that proposal hasn't been accepted and we assumed that it hadn't been because two days after we sent it the CFMEU filed its submission opposing the variations. As we have stated in our reply submission, no union or employer group in these proceedings is putting the position that the manufacturing modern award doesn't apply to products made from composite materials. The issue is only what the definition is, if you like, or what that encompasses because composite materials are materials made from two or more constituent materials and therefore we would understand the concerns that have been raised about that term if it isn't clear where it starts and finishes, and no one also is putting a position that this award does not apply to recycled products.

PN15

The biggest companies in the world in this area are covered under the manufacturing modern award, so certainly as we understand it no one is putting that proposition. The question is simply where does the coverage start and finish as it relates to these particular concepts. We would say the submissions of the other parties in these proceedings and that letter that we have provided relating to the Fair Work Ombudsman's involvement with our member company MRI, that those submissions highlight and the FWA letter highlight that there is uncertainty about where the award starts and finishes in this area of recycling and the submissions of unions like the CFMEU highlight that there is uncertainty about the issue of where the coverage starts and finishes with composite materials.

PN16

With regard to the recycling area we say this award has applied to the recycling of metal products, electronic products, plastic products and other products that are covered under this award since the award was made. But the metal industry award and the rubber plastic and cable making award have a very long history, countless decades of coverage of companies like Simms and One Steel Recycling and these other major players that have a very large number of heavily unionised plants covering this type of work. We also have a lot of member companies involved in the ICT area that are involved in recycling as well. There are various government laws and schemes like this idea of product stewardship legislation where companies are encouraged, in fact even legally required in some cases, to regard the whole of the life cycle of their products and not end up with a lot of their products simply ending up in landfill but looking at recycling, refurbishment, re-manufacturing, et cetera.

PN17

So it's a very big industry in that electronic products area and Simms is the biggest company in the world in that space and that company is a very significant member of AI Group, it has been under the metal industry award as long as anyone can remember. We would say this is not a controversial application and if it wasn't for the Fair Work Australia issuing what we see as a completely wrong determination in that matter relating to MRI, the issue would probably have never come up. We have obtained a letter from Simms and One Steel we have attached to that reply submission that just highlights not only their long coverage under the predecessor awards and their coverage now under the modern manufacturing award, but also the many, many enterprise agreements they have reached with the AMWU, AWU, NUW and CFMEU around the manufacturing award.

PN18

There really isn't any doubt in their view, but in terms of AI Group's view the doubt has arisen, the uncertainty has arisen at least in the FWA's mind around this initial determination. We do, as we have set out, we take very strong exception to what the ex-causal employee of MRI has put in these proceedings because I think on any assessment it is extremely misleading at best, because that determination that was issued. There's been a lot of water go under the bridge. As soon as that was issued the company contacted AI Group, we became involved, it was elevated to me because this is a big issue for a number of our major companies and we had discussions with the Fair Work Ombudsman at a senior level and those discussions flowed into the exchange of correspondence.

PN19

The situation is now that there has been no action taken against MRI, but FWO have said this is an area where they do accept that the manufacturing modern award may apply, but given their view that there is some uncertainty there should be discussions between the unions and employer groups to try to sort that out and we are more than happy to have those discussions but the issue is better resolved of course by making sure there is no uncertainty for the large number of companies and many thousands of employees who are already covered by the modern manufacturing award and should stay, of course, covered by it. So that is the issues between the recycling area. Even though - - -

PN20

THE SENIOR DEPUTY PRESIDENT: Just before you go on - you're going to go on to the change to 4.10 are you?

PN21

MR SMITH: I am but I was just going to make one more point about recycling and that is even though the uncertainty has arisen now because of the FWO's involvement the clause that is in the manufacturing award which states that the award applies to - and this is 4.9A(ix), it applies to every operation, process duty and function carried on or performed in or in connection with or incidental to any of the foregoing industries, parts of industries or occupations. That was in the metal industry award in schedule A and again it's been there as long as anyone at AI Group can remember and that was the section that made it very clear that that award applied to electronics, metals, plastics and there was overlap of course with the rubber and plastics award for the plastic industry. But that is now in here.

PN22

Obviously the electronics industry is very widely covered by this award in NAPSAs like the W.A. electronics award were rolled in, as well as the very substantial coverage the metal award had for electronic products. The plastics industry was covered very extensively by the rubber and plastics award and the metals award and of course all forms of metal recycling mainstream parts of the metals award. But given this development with the FWO we think it is worth clarifying to be consistent with the modern award's objective that awards should be easy to understand. The other thing we have set out, and I am sure Ms Taylor will have something to say about it, but the MRI is an AMWU workshop, if you like, or there's AMWU members and both the AMWU and AI Group, as I understand it, put positions to the FWA that we completely disagree that that waste management award applies. The waste management award came out of awards covering refuse collection and waste transfer stations, it really has no classifications that apply to this type of work.

PN23

THE SENIOR DEPUTY PRESIDENT: Just as a matter of interest, Mr Smith, what was the employee who made the complaint to the Ombudsman's job?

PN24

MR SMITH: He was a labourer as I understand it, a casual labourer, and as I understand it - and we did get the position of the FWO to provide that letter to the Tribunal, we wouldn’t have done it without that, but as I understand it the FWO has decided not to take any further action because the company is using the manufacturing award and they have not got a view now that things have moved on that that award doesn't necessarily apply. They are wanting to have higher level discussions about the whole recycling area and the more you think about it, and even the submissions that have been made by the other parties, we don't disagree that this type of work of recycling will be under lots of different awards. But the recycling of products and materials covered by this award will be under this award, that is we hope not a controversial issue, because we are not trying to cover concrete and timber and things, we are just seeking to clarify the coverage of those parts and materials that are already in the award.

PN25

THE SENIOR DEPUTY PRESIDENT: Which brings me to - if you're going to go onto 4.10 now?

PN26

MR SMITH: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: Your paragraph 23 of the submission you put in last night, AIG2, proposed adding that, "For the purposes of 4.9A(iii) recycling means recycling of products and materials covered under this award." I was just unsure of what was the effect of that given that 4.9A(ii) reads, "The recycling of any of the items referred to in 4.9A(i) and 4.9A(i) has, "products, materials et cetera." Is it meant to make any difference?

PN28

MR SMITH: We don't think it does, your Honour, because putting it where we had agreed to put the word with the AMWU we thought it had that effect anyway, but we were trying to satisfy, particularly Mr Maxwell's concerns, about concrete and granite and quarrying materials and so on. As we have said in our submission we don't think it's necessary, we would prefer the original wording.

PN29

THE SENIOR DEPUTY PRESIDENT: I see, so your answer would be - if you understand Mr Maxwell's submission correctly your answer would be to him that it's only recycling of the products and the products of concrete, et cetera are not covered by this award?

PN30

MR SMITH: That's right, there's a concrete products award, there's a quarrying award. We wouldn’t want to start listing the awards that are excluded but you then end up with all this uncertainty. It's only about the products and materials covered by the award, for a company like Simms for example it has a major recycling operation and a major metals operation and a major plastics operation. Those operations are clearly covered. One Steel recycling and metals, that would clearly be covered, but if it's talking about the type of recycling that is covered by the quarrying award then that type of material is not part of this award so we wouldn’t see that as being covered. To the extent that there is any residual minor piece of uncertainty that would be dealt with by the overlapping coverage provision that has gone in each award, but we are really not seeking to disturb the coverage of any other award, we are just seeking to clarify it, particularly in the light of this FWO issue where the FWO is now saying that there is uncertainty, we would like to put that to bed.

PN31

THE SENIOR DEPUTY PRESIDENT: Okay. 4.10.

PN32

MR SMITH: With that 4.10 we (indistinct) with this variation at least, it seems that the concern relates to the term "composite materials" rather than all of the terms there. That term "composite materials" was as the AMWU and AI Group pointed out, was actually a term out of the definition of fabrication stream that was in the metals award and in the equivalent definition of fabrication stream in clause 3.1 of the manufacturing modern award it has been replaced with the term "any materials". I can't recall any reason, whether that was the Tribunal that simplified that definition or whether the parties proposed that, I can't recall but there certainly was no intention on AI Group's part and we assume on the union's part to disturb the award coverage for those significant number of companies that are making products out of carbon fibre and composite materials and we would say it just appears to be an error or an oversight.

PN33

In terms of this area we have tried to find a way of clarifying the issue to avoid any concerns that particularly the CFMEU, the AWU and ABI have, and in that submission yesterday we suggested the wording that composite materials would be defined to mean composites of materials which are covered by the award, for example, carbon fibre, plastics, fibreglass, polymer, vinyl, resin, ceramics, et cetera. So they are already covered by the award, we are not talking about concrete or plywood or anything like that, but there are a growing number of these products that are now being manufactured and again there is no interest for any party to have uncertainty in this area, either the employers or thousands or employees who are making things out of those materials.

PN34

So we would submit then that that proposed definition should resolve any legitimate concerns about the term "composite materials", even though it wasn't defined in the metals award. In conclusion we would submit there is obviously some uncertainty about these two areas and that is highlighted by the submissions that the other parties have made. With the second area we think that could also be appropriately characterised as an error or an oversight.

PN35

THE SENIOR DEPUTY PRESIDENT: So concepts of materials, if you wanted a definition, I think you have suggested either in 23 you add the words "fibre reinforced" before the word "composite" or alternatively you're simply suggesting that you define composite materials as meaning composites of materials covered by the award?

PN36

MR SMITH: I think your Honour, having thought about it some more the second construction is probably more appropriate than the first one because it may well be that there are some carbon fibre composite materials that include some of these other things that particularly the CFMEU and ABI are concerned about, but we are really talking about these type of composite materials that are used to make aerospace components and automotive components in some areas.

PN37

THE SENIOR DEPUTY PRESIDENT: One of the ways then presumably that it could be done from your perspective is to add the paragraph 4.10.00 as you originally propose but insert in the definitions in clause 3 that composite materials means composites of materials which are covered by the award?

PN38

MR SMITH: Yes, I think that probably would be a neater way of doing it, but we suggested this so it would be closer to the clause.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MR SMITH: None of the other parties have even tried to clarify where the award's coverage in those two areas starts and finishes. I'm not talking about the AMWU because as we understand it there is still an agreed position on it, but the other unions appear to be saying that there is this doubt about overlap but haven't come up with any description of where the coverage of this award starts and finishes, other than everyone concedes that it does have substantial coverage in these areas, it's just where it starts and finishes. We submit that it's in the public interest that the terms of the award are clear, consistent with the modern award's objection for the award to be clear and easy to understand. It's very important for many thousands of employees who are already covered under the award and the enterprise agreement is linked to the award for the award coverage to be clear and we would urge the Tribunal to vary the award in the terms sought. We would seek the earliest possible determination given that we have now got this issue that has been raised about potential uncertainty. If the Tribunal pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Smith. Ms Haynes, do you want to go next?

PN42

MS HAYNES: Thank you. I think what I will start off with saying, your Honour, is that our position is still - whilst we welcome the alternatives that were proposed in the second submission by AIG, our position still is that it hasn't responded entirely to the concerns that ABI has in respect to possible overlapping of coverage, but also that our view is still that section 160 is an inappropriate vehicle for a change of this kind or variations of this sought in circumstances where the two yearly review is underway and in particular where the variations sought are not merely remedying an uncertainty but also the variations don't exist in a vacuum in light of these possible issues of overlapping coverage and within this context we feel it would be appropriate for such matters to be dealt with in the two yearly review which, amongst other things, should contemplate the interaction between modern awards within I suppose the context of the effective operation of the modern awards in connection with the award modernisation process.

PN43

In respect to the timing of the second submissions that we only received last night, our concern is that this new evidence has provided to us a bit on the run and when provided only 24 hours before the matter is to be heard we would really like to be able to take the opportunity to fully consider the implication of the alternatives before indicating an agreement or otherwise to them. Our view is that it would be manifestly unfair not to be able to consider the proposed alternative in more detail. As foreshadowed, we still say that the alternative wording put forward by AIG does not really quell all of our concerns. Whilst it does attempt to limit the scope of the application, in our view part of the language is still vague. For instance, we assume that the reference to materials covered by the award means materials referred to in clause 4.10 and perhaps that should be more specific if that is the intention.

PN44

THE SENIOR DEPUTY PRESIDENT: Sorry, what was that last bit about 4.10?

PN45

MS HAYNES: The alternative put forward by AIG indicates for instance that recycling means amongst other things materials covered by the award, recycling of materials covered by the award. We assume that means materials as identified in clause 4.10 and if that is the intention that that be specifically put into any alternative as a consideration. What our concern is upon examining 4.10 in further detail and in light of the alternative is that there is still a potential to give rise to issues of overlapping coverage. For instance for 4.10A includes, "All products made from or containing steel, iron, metal, sheet metal, tin, brass, copper and nonferrous metal." In our view there is the potential for that steel to cause conflict with materials covered by the quarrying industry award and we would like to I suppose have the time to consider whether that concern is well-founded or otherwise.

PN46

And also having a look at clause 4.10D references industrial gasses, we have had feedback from some members that this could potentially be of issue in connection with quarrying sites that now operate in such a way to recycle waste that turns it into productive gas, for instance and our understanding, and I don't think anyone would agree, that that was never intended to be covered by the modern manufacturing award. However, having a further examination in the light of the alternatives put forward by AIG we would just like to have an opportunity to consider whether that does give rise to other issues in connection to overlapping coverage. If the Tribunal is minded to entertain the application, ABI would seek the opportunity to put a proper evidentiary case forward to examine I suppose what has been put forward in more detail.

PN47

THE SENIOR DEPUTY PRESIDENT: All right.

PN48

MS HAYNES: Thank you, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Can I just pursue with you a bit more, it's recycling of the products et cetera. As I understand it those are the ones in 4.10, unless anybody is able to convince me otherwise that's what is as I understand it is intended and perhaps Mr Smith can clarify that.

PN50

MR SMITH: That's correct, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: I think the award is reasonably clear on that I must say. So really then I think the - and I've obviously got to hear the others but I've got you on your feet now - the issue really comes down to in some parts it would seem to concern about the products that are to be recycled. So if it's 4.10 then presumably the concern you might have about stone, brick, concrete, masonry, asphalt, et cetera doesn't exist because they are not products which are in 4.10.

PN52

MS HAYNES: Not explicitly, your Honour, our concern was upon re-examination of clause 4.10, 4.10A and D, and I would say whether 4.10A could be read broadly enough such that products containing steel, iron, metal for instance could include concrete.

PN53

THE SENIOR DEPUTY PRESIDENT: But if that is the case your concern is not the recycling, it's the award in general isn't it?

PN54

MS HAYNES: I think we wanted to have a further opportunity to consider whether the new alternative put forward in light of the recycling and I suppose 4.10 generally did give rise to coverage issues.

PN55

THE SENIOR DEPUTY PRESIDENT: The other aspect is let's assume that Mr Smith's fallback position was to define composite materials as composites of materials covered by the award, and then that thereby locks back into 4.10, does that give you any greater relief?

PN56

MS HAYNES: I think it has the potential to provide some relief but I think we would still like the opportunity to consider it, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. In Sydney, Mr Maxwell?

PN58

MR MAXWELL: Thank you, your Honour. Your Honour, we still oppose the application and our general position is that we (indistinct) this matter (indistinct). In regards to - - -

PN59

THE SENIOR DEPUTY PRESIDENT: So we shouldn’t do anything? Don't touch an award pending the 2012 review? No matter how many years that might take.

PN60

MR MAXWELL: Your Honour, given that my understanding of the issue of coverage will be raised (indistinct) as part of the 2012 review - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Excuse me, Mr Maxwell, the court reporter can't hear you which means this isn't being recorded. I can hear you.

PN62

MR MAXWELL: Can you hear me now?

PN63

THE SENIOR DEPUTY PRESIDENT: Perhaps if you can count to 10. We can't here you at all now.

PN64

MR MAXWELL: 1, 2, 3, 4, 5 - - -

PN65

THE SENIOR DEPUTY PRESIDENT: That's fine, that's fine. Yes, Mr Maxwell, perhaps you could start from the top.

PN66

MR MAXWELL: Thank you, your Honour. Your Honour, our position is that we still oppose the application and we also submit that the preferable position from our point of view would be for the matter to be adjourned and to be linked with the 2012 award review on the basis that issues of (indistinct) awards will doubtless be raised again in that review process. Our main concerns which we have identified in our written submission deal with issues of recycling, concrete materials and similar materials. In regard to recycling the issue there is that there are - recycling itself can take different forms. There is the recycling which we have identified in our written submission, but there is the recycling where you just remove products to use it in the same form in another place.

PN67

For example, someone removes a window from a building and it is then recycled and put into another building, that is one form of recycling and another form is where the product is stripped down or that the form alters it to create another product. We would suggest that that is perhaps the types of recycling that is done by Simms in terms of their (indistinct) in the latter place the (indistinct) is attachment D to the AIG reply where they talk about supply and processed, (indistinct) ferrous and non-ferrous recycled metal. So there is a process by which the materials collected are then processed to form a recycled metal. To the extent that the application is sought to cover that type of operation we would have no problem with the application. But it doesn't, it seeks to cover the recycling products covered by the award. In that sense we are faced now with a submission that recycling takes place on construction sites, it takes place on demolition sites where material is sorted into different parts to be then taken to other places for further processing. We have also identified - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Which products would they be that are in 4.10 on construction sites?

PN69

MR MAXWELL: Your Honour, if you looked at modern demolition these days virtually 90 per cent of the product that you find in demolition, whether it be glass which is covered by 4.10, whether it be steel, iron, plastics, all these things that are sorted. Bricks is another example, given that the manufacturing award covers the manufacture of the clay bricks. All these items are sorted on a construction site and then taken to various recycling depots.

PN70

THE SENIOR DEPUTY PRESIDENT: So if there was some sort of exclusion for on site, building site, construction site, however defined that would cover your problem?

PN71

MR MAXWELL: Your Honour, that is one solution that we did put to the AIG in our discussions and in the submissions, we suggested that if an exclusion was inserted for the on site construction award which we still think is necessary given the wide scope of clause 4 point - sorry, your Honour, this is the clause Mr Smith took you to that the wide coverage of the - 4.9A(x) where it talks about, "Every operation process due to function, carried on or performed in or in connection with or incidental to any of the industry's parts or occupations covered by the award." In certain areas that could be used to apply to any industry. So we strongly submit that there needs to be an exclusion contained within the manufacturing award that has no application to work covered by the construction award.

PN72

THE SENIOR DEPUTY PRESIDENT: I'm just trying to cut this down a bit. You would be seeking an exclusion for work that's covered by - what's it called, the onsite construction - the modern building award or something is it?

PN73

MR MAXWELL: The building construction and general onsite award.

PN74

THE SENIOR DEPUTY PRESIDENT: Is that what it's called?

PN75

MR MAXWELL: Yes, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR MAXWELL: Then the other component is that we both have identified the waste management industry award. That clearly does cover recycling in the definition of the waste management industry, and whilst we recognise that most of that recycling is merely sourcing the products into different aisles, it is a form of recycling that goes on and that is why we think there needs to be perhaps an exclusion for the waste management industry award. We have also mentioned the quarrying award in our submission and in 2.6 we deal with the definition of the quarrying industry which includes, "The (indistinct) materials such as brick, concrete, masonry, asphalt, et cetera, recycled material including (indistinct)." I understand that Mr Smith has said that AIG does not seek that the manufacturing award cover that work, well on that basis (indistinct) quarry industry award, so there would then be no doubt as to what award applied to that type of work.

PN78

THE SENIOR DEPUTY PRESIDENT: So something along the lines of in 4.11 manufacturing and associated industry occupations does not mean employers or employees engaged in recycling covered by the (indistinct) award, Building Construction General Onsite Award, Waste Management Award 2010 and I think the AWU suggests adding the Joining and Building Trades Award?

PN79

MR MAXWELL: Yes, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: That would cover that?

PN81

MR MAXWELL: Yes.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR MAXWELL: Your Honour, in regards to composite materials, this matter is perhaps a bit more complicated and we set out in our written submission what composite materials are and the types of composite materials and we know there are a number of awards that already cover products (indistinct) manufactured from composite materials now identified in paragraph 3.3 of our written submissions, so the timber industry award, the joining building trades award, the concrete products award, the asphalt industry award and the (indistinct) concrete award. So along similar lines if the award included an exclusion say that composite materials did not include products or components manufactured under the proposed award then that would address our concerns.

PN84

THE SENIOR DEPUTY PRESIDENT: Mr Maxwell, in the submissions that were filed last night, I don't know - have you seen those?

PN85

MR MAXWELL: I have had a quick look at them, yes, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: Can I ask you just a question about one of the issues. As I understand it the AIG wrote to you at some stage suggesting that composite materials be defined as fibre reinforced or fibre reinforced composite materials be added in?

PN87

MR MAXWELL: Yes, your Honour, and just on that point Mr Smith said that we did respond in an email dated 8 February. Given that our submissions were due the next day we didn't have time to fully express our concerns in referring to our written submission. The concern with fibre reinforced composite materials is that the best example of fibre reinforced composite material is a concrete panel. If there's concrete composite material and concrete panels include metal and metal or other fibres to strengthen the concrete. So that's why we have a concern that the (indistinct) by Mr Smith and that's why we think an exclusion based on the awards will be far preferable to try and reach some definition of composite material.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes.

PN89

MR MAXWELL: So your Honour to the extent that - - -

PN90

THE SENIOR DEPUTY PRESIDENT: Just on that, so perhaps one way is for - is it composite - in the definition of composite materials is composite materials does not include the manufacture of products or components covered by the four or five awards you have mentioned. Something like that?

PN91

MR MAXWELL: That's correct, yes, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes. The other aspects of this, carbon fibre, carbon graphite, graphite, titanium, magnesium and alloys, you have no problem with?

PN93

MR MAXWELL: We have no problem with that.

PN94

THE SENIOR DEPUTY PRESIDENT: The similar materials?

PN95

MR MAXWELL: The similar materials are concerned - they relate back to the composite materials that we refer to covered by the other awards. If the exclusion is in there then in regard to that would be removed.

PN96

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #CFMEU1 SUBMISSIONS OF CFMEU

PN97

THE SENIOR DEPUTY PRESIDENT: Mr Decarne.

PN98

MR DECARNE: Thank you, your Honour. We filed a brief outline of submissions. We concur with the problems identified in the outline of submissions of the CFMEU (indistinct) by Mr Maxwell today, not only (indistinct) set out there. We believe (indistinct) parties conferring further, whether or not the Tribunal decides to pursue this application (indistinct) consideration to a (indistinct) review. We believe (indistinct) would be appropriate. We understand the - - -

PN99

THE SENIOR DEPUTY PRESIDENT: Mr Decarne, we have got the same problem with you.

PN100

MR DECARNE: Can you hear me now, your Honour?

PN101

THE SENIOR DEPUTY PRESIDENT: You need to talk into the big microphone, the long one.

PN102

MR DECARNE: Is there any problem hearing me now, your Honour?

PN103

THE SENIOR DEPUTY PRESIDENT: Just speak up.

PN104

MR DECARNE: Okay.

PN105

THE SENIOR DEPUTY PRESIDENT: I'll tell you what I've got so far. You concur with the CFMEU. You think that there should be time for more discussions and that this perhaps also should be dealt with by the 2012 award review, am I right?

PN106

MR DECARNE: Yes, and just to clarify also that if the Tribunal is of a mind to dismiss the application to be dealt with in the 24 review, that the parties could be granted more time to consult over this application, considering that there have been parties that have been consulted with, including the TWU who might have an interest and also ABI weren't consulted with prior to the application being filed or between the other unions. So considering that the issues in dispute are quite (indistinct) and not all of the terms proposed by the AI Group have been disagreed with, there could be some utility in the parties meeting again.

PN107

THE SENIOR DEPUTY PRESIDENT: Okay.

PN108

MR DECARNE: We would also like to make the point that I don't think there has been enough consideration given by the parties to the link between the contentious aspects of the two variations proposed and that is the recycling of both the composite materials itself. AI Group identifies that the variation application arose out of an Ombudsman's interpretation that was not favoured by the AI Group and the applicant. The Tribunal we would say might be inundated by applications of this nature if that was cause enough to vary an award. I understand the concern that Mr Maxwell raised in respect of the fibre reinforced concrete and we addressed that at paragraph 14 of our outline of submissions. In summary we think that there needs to be more time and that the application will create unnecessary overlap. Thank you, your Honour.

EXHIBIT #AWU1 SUBMISSIONS OF AWU

PN109

THE SENIOR DEPUTY PRESIDENT: Ms Taylor, see if we can hear you.

PN110

MS TAYLOR: Thank you, your Honour, am I being heard?

PN111

THE SENIOR DEPUTY PRESIDENT: Yes, you are fine.

PN112

MS TAYLOR: Your Honour, the AMWU supports the clarification of the manufacturing award that it becomes clear and unambiguous. The award covers the recycling of materials and of products identified within clause 4.10 of the award and we also support the reintroduction of carbon fibre and composite materials into the award. We reject the proposition that the matter be stood over until the forthcoming review of modern awards. The ambiguity issue is alive now, as indicated in the MRI matter and in conjunction with the existing - and there is no obstacle preventing FWA from determining the matter and reducing the volume of matters subject to the 2012 review of awards, that would be an administrative (indistinct).

PN113

Your Honour, the CFMEU provided the quarry definition of recycling at 2.1 of their submission. The definition includes that, "Recycling means to treat so that new products can be manufactured from them." On this definition and in practice the manufacturing award already incorporates recycling of materials listed in 4.10. We say that recycling is contained at 4.9A(i) of the manufacturing award, that sub-clause identifies the industries and the parts of the industries covered by the award and includes, "processing and treatment". So that the treatment identified in the award is consistent with the quarry definition that recycling means to treat. Recycling is therefore contained within the treatment industry identified at 4.9A(i) of the award.

PN114

Your Honour, whilst we say that recycling is already covered within the manufacturing award, the modern award system is still settling down, new (indistinct) are coming to the fore all the time and there is slight confusion as to the recycling or treatment of the materials or products identified in clause 4.10 of the award, and the case that the (indistinct) referred to (indistinct) is a case in point, that's a recycling company located at Wetherill Park in New South Wales and at Campbellfield in Victoria. The company recycles electronic equipment. The union has members at both sites. Our members break down products identified within 4.10K of the award, such as computers, (indistinct) and printers. Components are sorted and re-worked where appropriate.

PN115

Members also reassemble, fit parts to and test screens, keyboards and other components for their re-use. In other words members perform the activities within the definition of recycling provided by the CFMEU including both the treatment and preparation of material for second use. Our members we say sit within C13 to C10 of the awards classification. The company is now bargaining with the AMWU, however initially bargaining was delayed and obstructed due to the confusion of the award coverage. At that point in time the company was arguing that the business equipment award applied and we certainly don't agree with the AIG that the business equipment award does cover the concept of recycling.

PN116

We also disagree that the waste management award, whilst it certainly does cover recycling, it is not recycling of the nature comprehended at MRI or recycling necessarily the products identified within 4.10A. A study review of the classification structure and coverage clauses within those awards, the waste management and business equipment establish that they do not apply or alternatively the manufacturing award contains the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs their work. I will read this (indistinct) that listening to all the proposed exclusions, we really need to have a look at what the coverage clauses are saying and particularly what the overlap clause is saying. It's not just about a classification, it's about an environment as well.

PN117

So for example the example raised by the CFMEU about building an onsite award, we are not saying that the manufacturing award would cover that work, and the definition or the requirement in the overlap clause would sort that out and that's what our view is that the coverage clause, the classification clause and the overlap clause should be left to do their job. Because putting all those exclusions in, it doesn't move any dispute because the dispute will have to be addressed by the facts, what work is being done in which the industry is the classification structure there in which environment - we really strongly believe particularly coming into an award review that the depth and the method and the strength of the classification clauses, the coverage clause and the overlap clause should be left to do their work.

PN118

Your Honour, the language of the manufacturing award at clause 4.9 clearly ties the manufacturing, making, assembly, processing, treatment, fabrication and preparation to the product structures, articles, parts and components set out in 4.10. So that concept that we were talking about or was raised that we might introduce somewhere else as a result of this application is already within the award. The proposed clarification of recycling therefore only extends to organisations whose operations recycle materials and products which are already covered by the manufacturing award and then only where the work of the recycling employee can be identified within the award's classification structure and the classification structure is the most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. So we say that that is the test and putting in all the exclusions will not necessarily resolve a dispute because a dispute will always be resolved on the particular facts at a point in time.

PN119

THE SENIOR DEPUTY PRESIDENT: Ms Taylor, the overlap clause you speak of is which clause in the award?

PN120

MS TAYLOR: Your Honour, in the award that have been identified as problematic the stamped overlap clause is contained in waste management, the building, the quarrying, the pre-mixed concrete, the timber, the concrete products and the asphalt award. In fact it is contained in most of the modern awards except for the manufacturing award because of its occupational status.

PN121

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Is there anything else you wanted to say, Ms Taylor?

PN122

MS TAYLOR: No, your Honour, I think I've covered the points that I was going to say and we support the application of the CFMEU, there could be some tidying up but we believe that the original application should be put in and that, as we said, the exclusions aren't going to assist any further disputes and the fact that composite materials and fibre were previously in the award, no one has identified any dispute in relation to those matters that have been in the award for quite some time. No overlap with the quarrying award or the concrete awards that's been identified in any submission, (indistinct) all jumping at shadows. Thank you, your Honour.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes.

PN124

MS WALTON: Excuse me, Your Honour.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes.

PN126

MS T. WALTON: There is another person here in Sydney representing the Transport Workers Union of Australia, surname T. Walton. We only found out about this application at five to 10 this morning. I would like to be heard on this matter. We certainly would be seeking to have an opportunity, possibly of two days to review the material that has been provided and the depth of the application and for the TWU to be in a position to make a submission.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Taylor, as I understand your position it is in essence that the clauses in the other awards which the unions have raised, the coverage clauses of those deal with the issue of overlap adequately and would enable those awards to prevail where they provided more appropriate coverage?

PN128

MS TAYLOR: Yes, your Honour, that is the submission that we say it's a three point test, that the industry of the award, the classification structure and the overlap clause. Your Honour, I have a document which identifies the overlap clauses in those awards that I mentioned, I can email that to your Honour after the proceedings if that were useful?

PN129

THE SENIOR DEPUTY PRESIDENT: It might be useful to the others, I am familiar with the nature of the clause. The reason I asked you the question was because I thought you were referring to it being in the manufacturing award and it's not, as you point out. Is there anything else you want to say, Ms Walton?

PN130

MS WALTON: Your Honour, only that of course our concern relates to the waste management award. We would like to inform ourselves of whether there is a likelihood of any confusion being created by the application and we will need at least 48 hours to do that, to make a formal response.

PN131

THE SENIOR DEPUTY PRESIDENT: Mr Smith.

PN132

MR SMITH: Your Honour, the submissions of some of the other parties are very disappointing to say the least. If I could just deal with a few of them. ABI, the arguments that are raised are extremely flimsy and go to the most far fetched examples of this issue of potentially disturbed coverage and we wonder what the ABIs own members would think in these major industries that should have certainty and it just seems like an attempt to frustrate this important application. So we would urge the Tribunal to reject those submissions. If it's a matter of needing a couple more days to consider that latest proposal then we don't have an objection to that, but we would like the right of reply to anything that is put in by the TWU or ABI. But as we have pointed out we are really just trying to secure the existing award coverage.

PN133

We are not talking about quarrying or gas on quarrying sites and other what we've described as far fetched examples. With the CFMEU, as your Honour would be aware this issue of whether a general exemption for the onsite building and construction award should go in the manufacturing award has been extremely hard fought and it is going to continue to be extremely hard fought because Mr Maxwell is trying to disturb the coverage of a lot of people who are legitimately covered under the manufacturing award and we are going to continue to fight that. The idea of a carve out of those awards for recycling we also strongly oppose because if you look for example at the waste management award this is the problem.

PN134

The waste management award has the most broad interpretation and completely inappropriate interpretation of the waste management industry. It is the collection, transportation, handling, recycling and disposal of any waste material whatsoever, be it solid or liquid, et cetera. The classification structure is very narrow, but the description of the waste management industry is ridiculously broad. Therefore if your Honour was to put into this award a carve out for recycling under that award it would have a dramatic effect on numerous other awards because it would mean that that award then trumps anything else, so we very strongly oppose that. It's the same with the joinery award for example, as your Honour is well aware we have ongoing problems that we will be raising during the review about some issues with the joinery award and the coverage of this award, but it doesn't go to the issue of recycling.

PN135

The issue of recycling of products and materials under this award we think should be tidied up in the way that AI Group and the AMWU have agreed upon, just through the simple addition of that extra word. All of these extra references that are put in there effectively means that the manufacturing award becomes the award that's left after the coverage is given everywhere else and that would be a very damaging proposition and I repeat again, if there was the exclusion put in for the waste management award that would have a dramatic effect on a large number of companies and we very strongly oppose that. In terms of the parties not being consulted, the AWU seem to be saying it had been consulted but it was worried about the ABI. ABI, as soon as they identified an interest in this, we sent all of the materials.

PN136

Everyone, including the TWU, presumably subscribes to the Tribunal's way of informing people about these matters and we subscribe to all 122 services and we would think that every other major industrial organisation would as well so that any matters like this that come up we are all aware of. So coming along at five to 10 and saying that they didn't know about it when the application was filed in December is really not good enough in our view. But if the TWU needs a couple of days we don't suggest that they do but if they do then we would suggest, your Honour, that the parties be given the - the ABI and TWU be given a couple of days, but we would request the right of reply because these are extremely important issues for companies that are already covered under this award and we are not seeking to disturb that, but some of the proposals that are being talked about today would have a major impact on that coverage and would open up a massive can of worms. If the Tribunal pleases.

PN137

THE SENIOR DEPUTY PRESIDENT: I am inclined to give some more time, but I think we can make the discussion more focussed. I am actually going to be in Sydney on 14 March and I could list this matter for further proceeding on that date at 12 noon on that day. I can indicate that at this stage, based on what I have heard, I wouldn’t be inclined to delay dealing with this matter pending the 2012 award review. I am not persuaded on what has been put to me so far that there is a sound basis for so delaying. I would encourage the parties to have further discussions between now and 14 March, particularly addressing why concerns would not be covered by inserting the word "recycling" in clause 4.9A(iii) as originally suggested by the AIG is not appropriate, having regard to the overlapping clauses to which Ms Taylor referred in other awards, and looking at defining composite materials as composites of materials which are covered by the manufacturing award in the definitions, how that would not address the issues of concern again having regard to the overlapping clauses issue raised by Ms Taylor. There may be other issues but I would be particularly interested in people's views as to why the overlapping clauses provisions of those other awards does not adequately deal with the issues they raise. Ms Taylor, I don't know whether I marked your submission. I will mark the written submission you filed.

EXHIBIT #AMWU1 SUBMISSIONS OF AMWU

PN138

THE SENIOR DEPUTY PRESIDENT: Is there anything anybody wants to raise in addition today? No. I'll assume that then everyone is available for the 12 o'clock on 14 March in Sydney and as I have indicated I would encourage you to have discussions in between. I will adjourn this matter on that basis.

<ADJOURNED INDEFINITELY [11.26AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG1 SUBMISSION OF APPLICANT FILED JANUARY PN10
EXHIBIT #AIG2 SUBMISSIONS OF APPLICANT FILED 21/02/2012 PN10
EXHIBIT #CFMEU1 SUBMISSIONS OF CFMEU PN96
EXHIBIT #AWU1 SUBMISSIONS OF AWU PN108
EXHIBIT #AMWU1 SUBMISSIONS OF AMWU PN137