PR929454 AW790741 PR929454 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.113 application for variation Master Builders' Association of New South Wales (C2001/5464) NATIONAL BUILDING AND CONSTRUCTION INDUSTRY AWARD 2000 (ODN C No. 02783 of 1974) [Print S0643 [AW790741]] Various employees Building, metal and civil construction industries VICE PRESIDENT ROSS MELBOURNE, 26 MARCH 2003 Application for the inclusion of part-time provisions. DECISION Introduction [1] This decision deals with an application by the Master Builders' Association of New South Wales (the MBA) on behalf of the Master Builders Associations of Victoria, Tasmania, South Australia, Queensland, Western Australia and Newcastle. The MBA seeks to vary the National Building and Construction Industry Award 2000 (the NBCIA 2000 ) in relation to part-time work. [2] At present the NBCIA 2000 deals with part-time employment in clause 13.3 as follows: " 13.3 Part-time employment Subject to the provisions of clause 34 and clauses 21, 27, 32, 35 and 36 of this award , the following shall apply to all classifications contained in this award: 13.3.1 An employee may be employed to work ordinary hours on a part time basis on any of the days Monday to Friday, pursuant to the provisions of clause 34 - Parental leave of this award. 13.3.2 An employee so engaged shall be classified as a part time employee and be paid for ordinary hours worked at the appropriate hourly rate for the applicable work classification. 13.3.3 Unless specifically provided by the clauses referred to above and subject to the provisions of 34.11.4 of this award and the matters agreed to in accordance with 34.11.7 of this award part time employment shall be in accordance with the provisions of this award which shall apply pro rata." [3] The current award provision effectively restricts part-time employment to circumstances where an employee is returning from Parental leave, and then only for a period of not more than 52 weeks after the birth or adoption of a child. [4] The MBA seeks to replace clause 13.3 with a provision in the following terms: 13.3 Part time employment An employer may employ an employee in accordance with this subclause as a part time employee. 13.3.1 A part time employee may be employed in any classification contained in this award. 13.3.2 Prior to commencing part time employment, the employer and the employee shall agree upon the conditions under which the part time work is to be performed including but not limited to: 13.3.2(a) The hours to be worked by the employee, the days upon which they shall be worked including the commencing and finishing times for the work; 13.3.2(b) The classification of the employee; and 13.3.2(c) The rate of pay for the classification of work in accordance with the award. 13.3.3 The conditions may also stipulate the period of part time employment. 13.3.4 The conditions may be varied by consent during the part time employee's employment. 13.3.5 The conditions or any variation to them must be in writing and retained by the employer. A copy of the conditions and any variation to them must be provided to the employee by the employer on commencing part time employment and on request. 13.3.6 An employer may agree with an employee to change from full time employment to part time employment. An employer may agree with a part time employee to change from part time employment to full time employment. 13.3.7 A part time employee may work more than their regular number of hours at their ordinary hourly rate by agreement with the employer provided that where a part time employee works in excess of 38 hours in any week the part time employee shall be paid overtime for such additional work at the rate of one and a half time ordinary rates for the first two hours and double time thereafter. 13.3.8 Part time employees shall receive all conditions prescribed by the award on a pro-rata basis calculated on the regular hours worked by the part time employee compared to 38 hours. An adjustment to the accrued leave entitlements may be required at the conclusion of each service year based on the proportion of actual hours worked. 13.3.9 Where a public holiday in sub clause 36.1 falls on a day where a part time employee would have regularly worked, the employee shall be paid for the hours that would otherwise have normally been worked on that day. 13.3.10 A change to full time employment from part time employment or vice versa shall not constitute a break in the continuity of service. All accrued entitlements shall be calculated in proportion to the hours worked in each employment arrangement with the employer." [5] Other consequential award variations are also sought. [6] The MBA's application is supported by some other employer organisations, namely the Building Industry Specialist Contractors Organisation of NSW (BISCO NSW), 1 the Civil Contractors Federation of Australia (CCF) and The Australian Industry Group (AiG). [7] The Construction, Forestry, Mining and Energy Union (the CFMEU) opposes the MBA application and argues that it should be dismissed pursuant to s.111 (1)(g)(iii). In the alternative, in the event that I am not persuaded that further proceedings are not necessary or desirable in the public interest, the CFMEU submits that it is not appropriate to include a general part-time employment clause in the NBCIA 2000 . Submissions MBA Submissions [8] The MBA advanced five broad lines of argument in support of its application. 1. Unnecessarily Restrictive [9] The MBA contends that in it's current form the NBCIA 2000 is unnecessarily restrictive in relation to the employment of part-time employees and that this has the effect of excluding potential employees or hindering them from pursuing employment in the building and construction sector. Three particular points are advanced in this context: · the award currently hinders those parents who wish to have ongoing caring responsibilities for their children after the age of two as they can only access full-time employment; · the availability of part-time provisions may assist in breaking down barriers to entry for and attracting and retaining female employees to the industry; and · there are more reasons for having part-time employment than just parental care in the first two years of a child's life, for example, ongoing caring responsibilities, medical constraints, undertaking further study and providing older workers with employment in circumstances where they may find it difficult to continue working full-time because of the physical nature of the industry. 2. Other Awards [10] It is argued that the current application provides for a consistency of approach in employment arrangements which exist in the NSW building and construction industry. In New South Wales the Building and Construction Industry (State) Award (the NSW Award ), the counterpart award for that state, was varied to include part-time provisions as a result of a section 19 review under the New South Wales Industrial Relations Act 1996 (the NSW Act ). Under the section 19 review, a number of awards were consolidated and a part-time provision was included into the new award, in the following terms: "13.3 Part-time employment - An employer and an employee may agree for the employee to work on a part-time basis. Any agreement of this nature shall be in accordance with Part 5 of Chapter 2 of the Act." [11] It is also said that there are many other federal and state awards which include general part-time work provisions. [12] Further, the MBA contended that the absence of part-time employment in the NBCIA 2000 may act as a barrier to part-time employment provisions in enterprise agreements and that such provisions are not common in agreements to which unions are a party. It is argued that employers should not have to enter into certified agreements in order to access general provisions dealing with part-time employment as it is an allowable award matter (see s.89A (2)(r)). 3. A Fair and Reasonable Framework [13] The MBA contended that the form of the variation sought provides a fair and reasonable framework for regulating part-time work and ensuring that employees are not exploited. In particular the variation is said to ensure that: · any agreement reached between an employer and employee in relation to the working of part-time work must be in writing; · it shall not be detrimental to full-time employment in the building and construction industry; and · the business needs of the employer and the individual needs of the employee are met. [14] It is also said that the form of the variation proposed follows the legislative principles for part-time work contained in the NSW Act . These principles are set out at ss.73 to 82 in Part 5 - Part-Time Work of Chapter 2 - Employment, of the NSW Act . 4. Objects of the Workplace Relations Act 1996 [15] It is argued that the application is consistent with the objects of the Workplace Relations Act 1996 (Cth) (the WR Act ) in that it: · ensures that the responsibility for matters affecting the employment relationship is negotiated at the workplace level (s.3(b)); · assists employees to balance their work and family responsibilities (s.3(i)); and · gives effect to Australia's international obligations in relation to labour standards (s.3(k)). 5. Anti-discrimination Legislation and ILO Convention 156 [16] It is argued that the application would give effect to articles 1, 2, 4(a) and 9 of ILO Convention 156. The Convention is set out as Schedule 12 to the WR Act . The articles relied on are in the following terms: " Article 1 1. This Convention applies to men and women workers with responsibilities in relation to their dependent children, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. 2. The provisions of this Convention shall also be applied to men and women workers with responsibilities in relation to other members of their immediate family who clearly need their care or support, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. 3. For the purposes of this Convention, the term s dependent child and other member of the immediate family who clearly needs care or support mean persons defined as such in each country by one of the means referred to in Article 9 of this Convention. 4. The workers covered by virtue of paragraphs 1 and 2 of this Article are hereinafter referred to as workers with family responsibilities . Article 2 This Convention applies to all branches of economic activity and all categories of workers. Article 4 With a view to creating effective equality of opportunity and treatment for men and women workers, all measures compatible with national conditions and possibilities shall be taken: (a) to enable workers with family responsibilities to exercise their right to free choice of employment; and Article 9 The provisions of this Convention may be applied by laws or regulations, collective agreements, works rules, arbitration awards, court decisions or a combination of these methods, or in any other manner consistent with national practice which may be appropriate, account being taken of national conditions." [17] The MBA also relied on what were said to be recent amendments to the Federal anti-discrimination legislation which make it unlawful to discriminate against an employee on the basis of the employees family responsibilities. [18] BISCO NSW and the CCF endorsed and supported the submissions made by the MBA. [19] At the outset of their submissions BISCO NSW and the CCF made it clear that they did not envisage that the introduction of a general part-time employment provision of the type sought would lead to the widespread use of part-time employees in the industry. In this regard it was said that "[t]he industry does not have a need for a strong part time workforce in the majority of its operations." 2 Despite this it was argued that: ". . . in line with modern workplace relations management practices, it is very desirable that employers have the flexibility to accommodate employees with special needs and to meet specific employment opportunities by way of using part-time staff." 3 [20] The thrust of the submission put by BISCO NSW and the CCF was that the current NBCIA 2000 was discriminatory in failing to make general provision for part-time employment. [21] In addition to their discrimination argument, BISCO NSW and the CCF contended that "both employers and employees genuinely believe that a part time provision would be of benefit to meet their individual needs." The witness statement of Mr Irving Warren, Executive Director of BISCO NSW, was relied on in this regard. 4 [22] Mr Sherman, on behalf of the AiG, supported the submissions made by the MBA, BISCO NSW and the CCF. [23] No submissions were made on behalf of Australian Business Industrial, The Master Plumbers' and Mechanical Services Association of Australia or VECCI. CFMEU Submissions [24] The CFMEU opposed the MBA's application. As a threshold issue the CFMEU argued that, based on the history of the award simplification proceedings in respect of the NBCIA 2000 and the absence of sufficient evidence in support of the application, it is not in the public interest to hear the matter and it should be dismissed pursuant to s.111 (1)(g)(iii). The arguments advanced in support of the CFMEU's application may be summarised as follows: · The inclusion of a more general part-time work provision in the NBCIA was recently considered and rejected by Commissioner Merriman in the award simplification proceedings. There was no appeal from the Commissioner's decision. It is not in the public interest that the applicants be permitted to rerun the arguments that were put and rejected in the simplification proceedings just over two years prior to the date of the application in this matter. 5 · The majority of the grounds advanced in support of the application were considered in the simplified proceedings and no relevant substantial changes have taken place since that time such as to warrant a reconsideration of that decision. · There is no direct evidence before the Commission from an employee who wants to work part-time. · Regular part-time employment (categorised as continuing indefinite employment terminable on notice and for cause) and daily hire employment (considered to be irregular or not continuous and which is excluded from the termination provisions in s.170CM of the WR Act ) fall into two completely different categories of employment which are incompatible with each other. [25] In the alternative, if unsuccessful in persuading the Commission that further proceedings are not necessary or desirable in the public interest, the CFMEU contended that it was not appropriate to include a general part-time employment clause in the NBCIA 2000 . A number of points were advanced in this regard: · the NBCIA 2000 already provides sufficient flexibility in terms of working arrangements through the provision of daily hire, weekly hire and casual employment; · there is no witness evidence from States other than NSW, and no direct employee evidence, supporting the application; and · there is an inconsistency between part-time employment, with it's connotations of permanent weekly employment and daily hire employment under which the majority of employees covered by the NBCIA 2000 are engaged. Consideration of Submissions [26] At the heart of the CFMEU's s.111 (1)(g)(iii) application is the proposition that a more general part-time work provision was recently considered and rejected by Commissioner Merriman in the award simplification proceedings. This in turn relies on what was put to, and determined by, Commissioner Merriman in those proceedings. [27] There is a difference of opinion between the parties about the extent to which the issue of including a general part-time clause in the NBCIA 2000 was dealt with in the award simplification proceedings. [28] The MBA contend in paragraph 19 of their written submission that: "a consent position was put to the Commission by the employer parties and the unions with only the Commonwealth seeking to have part time provisions included." [29] The joint written submission of BISCO NSW and the CCF contended in paragraph 16 that: "There were many complex issues to be considered and a strict deadline was imposed by the Commission on the parties, in order to finalise the proceedings. Whilst BISCO supported the Commonwealth's submission that the existing part time provisions were inadequate, other parties decided that they would concentrate on other issues, with the intention that issues which had not been properly resolved could be addressed at a later stage by an application to amend the award." [30] In his oral submissions Mr Irving suggested that BISCO NSW had communicated to the CFMEU and the Commission its intention that issues not properly raised during the award simplification could be addressed at a later stage by an application to vary the simplified award. While he was unable to provide any evidence or material in support of this assertion he did make reference to the following comment by Mr Maxwell (who appeared for the CFMEU) during the proceedings before Commissioner Merriman: "So we say the Commission in these proceedings should reject the expansion of part time work given the nature of the industry and we say that those advocating a change will still be able to apply to vary the award as long as they can mount a substantial case." 6 [31] Mr Warren submitted that the above words "clearly indicate that in view of the CFMEU during the 1998 Award Simplification case, a separate application to vary the part-time clause could be made, after the Commission had decided the matters currently before it." 7 [32] The CFMEU's submission contains a detailed analysis of the transcript of the proceedings before Commissioner Merriman. [33] It is apparent from a review of that transcript that the MBA and AiG consented to a document tendered by the CFMEU (marked as Exhibit CFMEU7-2). 8 The document contained a number of award clauses which had been agreed to by the CFMEU, the MBA and the AiG, but to which some or all of the other parties in the proceedings did not agree. One of the clauses concerned was clause 14 - Contract of Employment (as it was numbered in the earlier versions of the draft award). This clause did not contain a general provision enabling part-time employment. [34] The other parties to the proceedings adopted a different course. The NSW Employers' Federation and the Chamber of Manufacturers of NSW, while not supporting the position of the MBA and AiG, indicated that they would not be advancing any submissions against that position. 9 [35] The Commonwealth sought a general part time work provision and its submissions on the issue are set out at pages 166, 167, 338, 441, 493, 494, 495, 499, 500 and 654-656 of the transcript. [36] The CCF also argued for the inclusion of a general part-time employment provision particularly for plant operators who were engaged on weekly hire. 10 [37] The HIA and BISCO NSW supported and adopted the submissions of the Commonwealth and the CCF in relation to part time employment. 11 [38] The Chamber of Commerce and Industry in Western Australia (CCI WA) did not appear in person, however, they set out their position in writing and essentially adopted the position of the Commonwealth. 12 [39] The CFMEU consistently opposed the inclusion of a general part-time employment provision stating that: "Now, on this issue we say that on the whole, given the nature of the industry, with daily hire and casual employment and that the majority of employment is project based, part-time work except where already allowed for is inappropriate to this industry. . . . Now, we argue that for a general part-time provision to be inserted it is up to those advocating its inclusion to present a proper case with detailed evidence from employers and employees setting out the reasons why they want part-time work and to justify why it is appropriate to this industry. Now, in proceedings to date nothing of substance has been presented. We have only had bold one-line assertions from the bar table that some of the employees of some of the members of the Civil Contractors Federation have inquired about part-time work." 13 [40] The CFMEU's position was supported by the MBA, as Mr Grinsell-Jones stated: "There is still a broader question of the appropriateness of part-time employment in the industry which the Commission is required to review pursuant to item 51(8) - it's just not rolling off the top of my head at this time of the afternoon, Commissioner, but I'm sure you know the one I'm referring to. Simply in respect to that question of appropriateness, Commissioner, my instructions are that there is no demand from our members for part-time employment on a general basis in the award, that if one looks at the nature of employment in this award, particularly given this preponderance of daily hire, there aren't really that many circumstances in which employers want to engage employees for less than a period of a full day, and part-time employment really is looking at engaging employees for periods consistently for periods of less than a full day. The nature of the industry just doesn't lend itself to that type of employment." 14 [41] The CCF also recognised that "the issue of engagement of casual or, rather the engagement of part-time, may not be an issue of tremendous weight for employers who are engaging people on a daily hire basis." 15 [42] In the proceedings before me the CFMEU argued that reference to the award simplification transcript clearly demonstrates that the CFMEU, MBA and AiG had reached a consent position to not include a general part-time work clause, and indeed both the CFMEU and MBA strenuously argued against the inclusion of such a clause. On the other side the Commonwealth and the CCF, supported by BISCO NSW, the HIA and the CCI WA, made strong submissions for the inclusion of a general part time work provision. On this basis it is argued that the accounts of the award simplification proceedings contained in the employers written submissions (in the current matter before the Commission) are wrong. [43] Ultimately, Commissioner Merriman arbitrated the issue of the inclusion of a more general part time work provision and reached the following conclusion: "[15] The Commonwealth made a strong submission that the Commission should introduce part-time employment and produced a clause which would achieve this. The award currently provides for part-time employment in certain circumstances and the award also provides for casual employment. Item 51(7)(b) says the Commission must also review the award to determine whether or not it meets the criteria, `where appropriate it contains provisions enabling the employment of regular part-time employees'. Having considered the arguments, the Commission does not believe the award should be further varied to provide for a general clause to introduce a broader category of part-time employee. A substantive part of the employment is daily hire, provision is made for casuals and some form of part-time employment and there is no restriction in the award that would contravene s.89A (4)." 16 [44] I am satisfied that the insertion of a general part-time work provision was the subject of submissions in the award simplification proceedings. In particular, the Commonwealth made a substantial submission in this regard which was supported by HIA, BISCO NSW and CCI WA. CCF also argued for the inclusion of such a provision, particularly for plant operators engaged on weekly hire. [45] The CFMEU opposed the inclusion of a general part-time provision and was supported by the MBA in this regard. Indeed the MBA submitted that the nature of the industry didn't lend itself to part-time employment and that there was no demand from its members for the insertion of such a provision. [46] Ultimately Commissioner Merriman determined the matter and rejected the proposition that a more general part-time work provision should be inserted in the award. [47] Having dealt with the extent to which the issue of a general part-time provision was dealt with in the proceedings before Commissioner Merriman I now turn to deal with the other matters related to the s.111 (1)(g)(iii) application. [48] The power to dismiss a matter pursuant to s.111 (1)(g)(iii) on the ground that further proceedings are not necessary or desirable in the public interest is discretionary. [49] The MBA has a prima facie right to the exercise of the jurisdiction conferred on the Commission by the WR Act . 17 It is for the applicant (in this case the CFMEU) under s.111 (1)(g) to satisfy the Commission that it should exercise the discretionary power available. 18 The nature of that requirement is dealt with by Hancock SDP in Australian Social Welfare Union v Anglicare Tasmania and others , in these terms: ". ... that applicants seeking to invoke the Commission's discretion under Section 111(1)(g) and thus to deprive a disputant of its normal access to the processes of the Commission must make a case which, of itself, could justify such a outcome; and, subject to this requirement, . that my task is to balance against each other the benefits and detriments of the various courses of action which are open to me." 19 [50] I have adopted the same approach to the matter before me. [51] The issue before me - that is, the introduction of a general part-time work provision - was considered, and rejected, by Commissioner Merriman in the award simplification proceedings relating to the same award. In my view this is clearly a relevant consideration in deciding whether to exercise the discretion in s.111 (1)(g)(iii). In this context the observations of the Full Bench in Federated Clerks Union of Australia and others v AMA Health Fund & Others 20 are apposite. In that matter the Full Bench was dealing with the predecessor provision to s.111 (1)(g), that is s.41(1)(d) of the previous Conciliation and Arbitration Act 1904 . The Bench said: "Accepting that a section 41(1)(d) case may be argued at any time, the important question is the extent to which a Bench might be constrained by an earlier decision of the Commission. Suffice to say for the present purposes that: . In general we recognise the value of continuity and broad consistency in decisions of the Commission and their relevance to stability in the operation of the industrial relations system but at the same time we acknowledge the need to avoid rigidity; . A lengthy period has not elapsed since the issues were last determined by the Commission; and . We have no doubt that we are entitled to ask what has occurred since then which would warrant this Bench now reaching different conclusions." 21 [52] Given that Commissioner Merriman determined the part-time work issue on 23 July 1999, I am satisfied that a lengthy period has not elapsed since the issues were last determined by the Commission. In such circumstances it is relevant to consider what has occurred since the Commissioner's decision which would warrant me now reaching a different conclusion. [53] The MBA relied on three "changed circumstances" in support of its application: · the survey of MBA members; · the inclusion of a general part-time work provision in the NSW Award ; and · the enactment of the Human Rights Legislation Amendment Act (No. 1) 1999 . [54] I propose to deal with each of these matters in turn. [55] The first matter relied upon by the MBA is the results of a survey of MBA-NSW members carried out in 2002. A summary of the survey results was marked as Exhibit MBA 2 in the proceedings. Ninety one per cent of those responding to the survey supported the MBA's application and some 19 per cent felt that a general part-time work provision would allow them to employ more women in trades and related work. [56] But in my view the survey is flawed and very little weight can be attached to the results, for the following reasons: · the survey had a very low response. It was sent to the MBA-NSW's 4000 members, only 138 responded (3.5 per cent); · the survey only relates to employers in NSW, there is no evidence as to the views of MBA members in other states; · some of those who responded are not employers in the building industry but are professional or associate members of the MBA; 22 · of the 138 who responded to the survey it is not clear if all of them employed persons under the terms of the NBCIA. 23 [57] The second matter relied upon by the MBA is the decision of the Industrial Relations Commission of New South Wales to include a general part-time work provision in the NSW Award . 24 The NSW Award is the counterpart state award to the NBCIA Award . [58] In considering the variation of the NSW Award it is important to bear in mind that the legislative context is quite different to that which applies federally. In Simiana v Woolworths Ltd Hungerford J made the following observations about the nature of Division 4 of the Industrial Relations Act 1991 (NSW): "As such, the scheme, in terms, gives effect to the stated purpose or object of the legislation to significantly increase the availability of such work in a situation where an award or agreement may not even provide for it. At the same time, it enables an employer and an employee to agree to the performance of work part-time free from any limitations or restrictions otherwise existing. But the statute goes further than ensuring the ability of an employee to be able to work part-time - it avoids not only the provision of any award or agreement which limits or restricts the circumstances in which part-time work may be worked but also any provision which limits or restricts the terms upon which it may be worked; it then establishes an entitlement in a part-time employee to the benefits of the provisions of any award or agreement applicable to the work concerned on a pro rata basis. That latter aspect was directly addressed in the second reading speech. Given that part-time work means work of a lesser number of hours than constitutes full-time work, the application of award provisions in pro rata way must, in my view, be referable to those provisions for full-time work contained in the relevant award. That result follows too from the coverage of Div 4 over work performed under it even though the relevant award or agreement may not contain provision for part-time employment." 25 [59] Further, the available evidence suggests that the use made of the part-time work provision in the NSW Award has been very limited. Section 78 of the NSW Act provides that all part-time work agreements must be filed in the NSW Industrial Registry and be available for inspection. In the proceedings before me the CFMEU stated that it had inspected all of the part-time work agreements filed in the registry and only seven related to the NSW Award . Four of the seven agreements filed related to the same employee. None of the employees party to the relevant agreements are women. The MBA did not contest the CFMEU's submissions in this regard. 26 [60] I now turn to consider the third matter identified by the MBA as a "changed circumstance" , namely, the enactment of the Human Rights Legislation Amendment Act (No. 1) 1999 (the 1999 No. 1 Amendment Act ). In its written submission, at paragraph 17, the MBA says: "In federal legislation new provisions have been included that now make it illegal to discriminate on the grounds that employee (sic) may have family responsibilities." [61] It seems to me that this aspect of the MBA's submissions is based on a misunderstanding as to the terms of the 1999 No. 1 Amendment Act . It is a largely administrative Act which relates to procedural matters of the Human Rights and Equal Opportunity Commission. There is no mention of "family responsibilities" in the 1999 No. 1 Amendment Act . [62] The General Outline of the Explanatory Memorandum to the 1999 Bill states that: "This Bill will amend Commonwealth anti-discrimination legislation to reform the functions and structure of the Human Rights and Equal Opportunity Commission (`HREOC'). The Bill will also respond to the High Court's decision in Brandy v HREOC (1995) 183 CLR 245, which found that HREOC, as a non-judicial body, did not have the constitutional power to finally determine disputes. The Bill: * confers on the President of HREOC the role and functions of Chief Executive Officer; * centralises complaint investigation and conciliation in the office of the President; * simplifies the legislation by implementing, where possible, common definitions and best practice procedural provisions for complaint handling in the one Act; * makes substantial changes to the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 to remove the provisions in those Acts that currently deal with complaints; * simplifies dispute resolution procedures in human rights matters by eliminating the second tier of review in HREOC, which was not directly enforceable; * provides that matters which cannot be conciliated will be dealt with in the Federal Court of Australia; * provides that the Federal Court will not be bound by technicalities or legal forms in considering proceedings brought before it under this Bill; * enables the Judges of the Federal Court to delegate some but not all of their functions in this area to Judicial Registrars, who will be able to assist with additional caseloads; and * makes provision for transitional arrangements for complaints which had been lodged with HREOC under the old law but which will not have been completed at the commencement of the new law, the most significant point being that where, prior to commencement of the new law, a complaint has been referred to HREOC for a substantive hearing which has commenced, the complaint will continue to be dealt with under the old law; all other complaints will be transferred to the scheme established by the new law." [63] The Sex Discrimination Act 1984 was amended to outlaw discrimination on the basis of family responsibilities by the Human Rights and Equal Opportunity Legislation Amendment Act (No. 2) 1992 (the 1992 Amendment No. 2 Act ), which received Royal assent on 16 December 1992. This Act amended the Sex Discrimination Act 1984 by inserting, amongst other things: · an additional object of the Act 27 at ss.3(ba); and · adding, at s.4A, a definition of "family responsibilities" ; and · inserting the new section 7A - Discrimination on the ground of family responsibilities. [64] The Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act ), which amended and renamed the Industrial Relations Act 1998 , introduced a new section 170CK which gave effect to both the ILO Convention concerning Discrimination in respect of Employment and Occupation, and the Family Responsibilities Convention. To this end s.170CK (2)(f) provides that, amongst other things, employment must not be terminated on the grounds of: "race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities , pregnancy, religion, political opinion, national extraction or social origin" [emphasis added] [65] This was also reflected in the new objects of the WROLA Act , which included the following: "3. Principal object of this Act The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: (a) ... (i) ...; and (j) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and (k) assisting in giving effect to Australia's international obligations in relation to labour standards." [66] It follows that the changes referred to by the MBA occurred before Commissioner Merriman's decision. [67] In my view the "changed circumstances" relied upon by the MBA fall far short of being sufficient to satisfy me that I should reach a different conclusion from that reached by Commissioner Merriman in the award simplification proceedings. [68] As noted earlier the CFMEU's submissions in respect of the lack of merit in the MBA's application also formed part of its s.111 (1)(g)(iii) case. [69] I now turn to consider the merit arguments advanced in support of the MBA's application. Some of these arguments have already been dealt with above and so it is unnecessary to deal with those matters further. The other merit arguments may be broadly grouped in four categories 28 : · the existing award is discriminatory in failing to provide for part-time work other than in the context of parental leave; · in its current form the NBCIA 2000 is unnecessarily restrictive in relation to the employment of part-time employees and this has the effect of excluding potential employees or hindering them from pursuing employment in the building and construction sector; · the absence of general part-time work provisions in the NBCIA 2000 may act as a barrier to part-time employment provisions in enterprise agreements; and · there are general part-time work provisions in other building and construction industry awards. [70] The discrimination argument was put in general terms by BISCO NSW and the CCF and amounted to little more than an assertion that the current NBCIA 2000 was discriminatory in failing to make general provision for part-time work. In this context BISCO NSW and the CCF relied on the following: · a publication issued by the NSW Department of Industrial Relations entitled "Work and Family Guidebook - Time to Care: Good Family Friendly Ideas for Small Business. Part Time Work" ; · ss.3(j) and (k), 111A and 113(2A) of the WR Act ; · ILO Convention 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities; · ILO Convention 1994 on Part Time Work; 29 and · HREOC's guidelines entitled "Developing effective anti-discrimination policies" . 30 [71] The NSW Department of Industrial Relations publication provides some general information on part-time work. BISCO NSW relied on it in support of it's submission that "many of the issues contained in the MBA submission are strongly supported by the New South Wales Government" . 31 [72] The NSW Government made no submissions in the proceedings and given the general nature of the Departmental publication there is no basis for concluding that the NSW Government supports any part of the MBA's application. [73] As noted above the publication referred to is general in nature and was not developed in the context of the building and construction industry sector. The same comment may be made in respect of the HREOC publication referred to by BISCO NSW and the CCF. I also note the observations of Commissioner Larkin in this regard in Re Railways Traffic, Permanent Way and Signalling Wages Staff Award : "Whether or not the New South Wales Public Service produces guidelines for part-time employment is irrelevant to the question before me. Organisations operating in either the public or private sector produce policies and guidelines in relation to operational requirements when and if the need arises. The existence of these guidelines and/or policy carries little weight to a resolution of the issue as these instruments are open to change and amendment at any given time in the life of an organisation." 32 [74] BISCO NSW and the CCF also referred to a number of provisions of the WR Act (namely ss.3(j) and (k), 111A and 113(2A)). But other than a general reference to these provisions no detailed legal argument was put in support of the assertion that the current award was discriminatory. Indeed when pressed Mr Warren's argument amounted to little more than the possibility that the current award was discriminatory. 33 [75] I also note that no party has made an application to HREOC under s.46PW of the Human Rights and Equal Opportunity Commission Act 1986 for the review of the NBCIA 2000 (see s.111A of the WR Act ). [76] The MBA, BISCO NSW and the CCF also relied upon the provisions of ILO Convention 156 in support of the application to vary. [77] The way in which Australia has implemented this convention is set out in a publication Status of ILO Conventions in Australia - 1994 , Department of Industrial Relations, Canberra, 1994. According to this publication the Australian position is as follows: "Australia ratified this convention on 30 March 1990. Effect is given to the Convention by a combination of legislation, regulations and administrative action at Commonwealth, state and Territorial level relating to: discrimination; equal employment opportunity; the public service; industrial relations; child care facilities; social security; child welfare; and parental leave. The Work and Family Unit was established in the Department of Industrial Relations in 1990 to oversee the broad implementation of the strategy for implementing the Convention across Commonwealth policies and programs. Australia has made a number of improvements to the existing discrimination and industrial relations legislation in order to address discrimination on the grounds of family responsibilities, and to promote adoption of "family friendly" employment practices which will assist workers with family responsibilities to successfully balance their employment and family responsibilities. Important recent developments include: The Sex Discrimination Act 1984 was amended in 1992 to prohibit employees being dismissed on the grounds of family responsibilities. The Industrial Relations Act 1988 was amended in 1993 by the insertion of provisions such as those relating to parental leave for up to 52 weeks to care for a newborn child or newly adopted child (Part VIA, division 5); provisions for the Australian Industrial Relations Commission (AIRC) to determine standards for leave to care for sick family members (Part VIA, division 6); the requirement for the AIRC to take the Convention into account when performing its functions (Section 93A); and the prohibition of dismissal on account of absences from work during maternity or other parental leave (Section 170DF(1)(g)). In addition, the AIRC is not permitted to certify or approve an agreement if it thinks that a provision of the agreement discriminates against an employee on the basis of specified grounds, including family responsibilities (Sections 170MD(5) and 170ND(10)). It is also required to remove any discriminatory award provision in the context of its periodic reviews of awards under Section 150A." 34 [78] Although there have been changes to the industrial legislation through the introduction of the WR Act , which either changed the numbering or repealed some of the provisions identified above, Australia's method of implementation has remained unchanged. In regard to the NBCIA it currently contains parental leave and personal leave (which includes carer's leave) clauses in accordance with test case standards. It has also been reviewed in accordance with Item 51 of the WROLA Act and any discriminatory provisions removed. The NBCIA therefore quite clearly complies with the way in which Australia has implemented ILO Convention 156. [79] BISCO NSW and the CCF also mention ILO Convention 175 dealing with Part Time Work. It is conceded that this convention has not been ratified by Australia, indeed only nine countries have ratified the Convention. 35 Accordingly the Commission is not obliged to give effect to the Convention as it does not form part of "Australia's international obligations" within the meaning of s.3(k) of the WR Act . 36 [80] I now turn to the second broad argument advanced in support of the application namely that the absence of a general part-time work provision has the effect of excluding potential employees or hindering them from pursuing employment in the building and construction sector. [81] One of the groups of potential employees referred to in this context are women. It is contended that the availability of part-time work may assist in attracting and retaining more female workers in the industry. The MBA relied on the evidence of Ms Catherine Hart in support of this contention. [82] Ms Hart is the President of the National Association of Women in Construction (the NAWIC). The NAWIC is a not for profit unlisted company formed in 1995 whose mission is to promote and improve the construction industry by the advancement of women within it. In her statement Ms Hart says: "7. The availability of part time work would allow those women who have left the work force to have families to return while still allowing them time for their families. 8. Part time work would also assist in attracting new entrants who may feel there is presently an attitude in the industry against part time work practices. 9. The work environment in many industries has undergone change recently where part time work and job sharing has become commonplace, for example the banking industry and retail. Part time work practices will allow job sharing to occur. This is seen as a desirable option for many women who would like to balance their work with their family life. 10. The shift in community perception regarding work practices need to be taken up by the construction industry to actively encourage women to continue in, and enter the industry. Further, the industry needs to retain the skilled people it already has the option of part time work will be an important aspect of retaining skilled women." 37 [83] The force of Ms Hart's evidence is, in my view, substantially weakened by the following: · The NAWIC has some 400 members, 95 per cent of whom are professionals. 38 · Ms Hart was unable to say what percentage of the membership of the NAWIC were employed in classifications covered by the NBCIA 2000 , though it was her evidence that the NAWIC "probably" had one member who was a builders labourer. 39 · Ms Hart conceded that there were no surveys or academic studies relating to the construction industry which support the assertions made in paragraphs 8 and 9 of her statement, but said that there have been studies in other industries which have shown that the option of part-time work had attracted women back into that industry. 40 [84] The MBA and its supporters provided no direct evidence from any female workers to the effect that they have been prevented from working in the industry due to the lack of part-time work opportunities. [85] There is however evidence from Ms Catherine Brokenborough to the effect that women in the industry want "a full days work for a full days pay" . 41 Ms Brokenborough is a carpenter and joiner who has been employed in the building and construction industry for 15 years. Based on her experience she says that: "... the main barriers faced by women in the building and construction industry include a negative public perception of industry culture, a lack of knowledge of skill-based career paths in the industry, the attitudes of male-dominated management in the industry, and a perception that women may lack the physical or psychological capacities to work within the industry." 42 [86] Ms Brokenborough's evidence derives some support from Discussion Paper 3 - Productivity and Performance in the Building and Construction Industry - released by the Cole Royal Commission. Section 4.2 of that discussion paper dealt with the employment of women in the industry. The paper cites research identifying some of the reasons why the role of women in construction remains limited. Those reasons relate to the perception that women: · are physically less able than men; · require additional facilities; · have trouble fitting in with the culture of the industry; and · cause changes to work practices that reduce profitability (e.g. weight requirements). [87] The discussion paper concludes that: "Future growth in female representation in the industry's workforce will depend on these perceptions and issues being addressed through strategies supported by the government and industry." 43 [88] The MBA also contended that a general part-time employment provision would facilitate the employment of workers with medical constraints and older workers who may find it difficult to continue working full-time because of the physical nature of the industry. The MBA relied on the evidence of Ms Susan Lukersmith in support of this contention. [89] Ms Lukersmith is an occupational therapist and is the principal of Lukersmith & Associates Pty Ltd, an occupational rehabilitation provider. In Ms Lukersmith's opinion the lack of provision for part-time employment in the building and construction industry has "an adverse effect on the short term and long term return to work and employment options for workers who, by reason of injury, disability or the effects of age-related degenerative processes, are unable to perform a full week's work." 44 [90] The CFMEU adduced evidence from Ms Rita Mallia, a senior legal officer employed by the CFMEU, in relation to this issue. In her statement Ms Mallia said: "4. It is my view that the inclusion of part-time provisions in the National Building Construction Industry Award 2000 (the NBCIA) will not enhance the rehabilitation of injured building and construction workers. Workers Compensation legislation in NSW makes it mandatory for employers to provide injured workers with suitable duties where practicable. The NSW system, like other Australian jurisdictions, facilitates the gradual return to work of injured workers. There is nothing in the NBCIA which prevents this from occurring currently." 45 [91] In the course of his oral submissions, Mr Murray, who appeared for the MBA, conceded that given an employer's obligations under workers' compensation legislation Ms Lukersmith's evidence essentially only supports the proposition that the following categories of workers may benefit from the availability of part-time work: · employees with non-work related injuries; · injured employees approaching new employers for work; · older employees who capacities are limited by factors other than injury. 46 [92] No direct evidence was led from a person falling within any of these categories. [93] I also note that the MBA relied on the evidence of Mr Timothy Sugden 47 and Mr Giulio Sirolli 48 . The evidence of these two witnesses indicates they operate in the building industry and that they support the MBA's applications for a number of reasons. I did not find this evidence particularly compelling, for the following reasons: · Mr Sugden's company, Sugden Homes Pty Ltd, only employs two carpenters and an apprentice carpenter; and · Mr Sirolli's company, Merlot Constructions, employs 18 employees of whom 10 work on site. Merlot Constructions is party to a certified agreement - the Merlot Constructions Pty Limited Site Employees Enterprise Agreement 2001. It is a s.170LK agreement and does not contain a provision in respect of part-time work. [94] In my view the evidence of two, relatively small, employers in NSW is insufficient to justify varying an award of national application. [95] For the sake of completeness I also note that BISCO NSW and the CCF relied on the evidence of Mr Irving Warren in respect of this issue. 49 I do not propose to place significant weight on Mr Warren's statement. It essentially consists of a series of non-specific unsubstantiated assertions concerning, among other things, the dozen or so inquiries he gets each year regarding part-time work. The statement contains no details as to the companies with whom the discussions referred to were held and no records were kept of inquiries about part-time work. [96] The third broad line of argument relates to enterprise bargaining. I do not find this argument persuasive as it was largely undeveloped and was unsupported by evidence. I also note that the issue of part-time work was not raised by any employer organisation in the recent round of enterprise bargaining discussions in the industry in NSW. 50 [97] The final broad line of argument advanced in support of the MBA's application is that a number of awards relevant to the building and construction industry sector include general provisions relating to part-time work. A list of the awards relied upon in this regard is set out in Exhibit MBA 7. I do find this argument particularly compelling. The list provided includes only one federal award - the Building and Construction Industry (Northern Territory) Award 2002 - and part-time work in that award is limited to a small number of classifications. [98] In this context I note that Commissioner Deegan recently rejected an application for a general part-time provision in the Building and Construction Industry (ACT) Award 1991 . 51 [99] No detailed information is provided in respect of the State awards (other than the NSW Award ) relied on by the MBA. There is no information about the circumstances in which part-time work provisions were inserted into those awards or about the extent to which such provisions have been utilised. [100] In sum, I have had regard to all of the submissions and evidence put by the MBA, BISCO NSW and the CCF in support of the application and in my view the application lacks merit. Insufficient evidence was presented by the employers to justify varying an award with national application. [101] I accept that the variation sought is in respect of an allowable award matter within the meaning of s.89A . But there is no requirement that an award contain provisions in respect of each of the allowable award matters. 52 [102] I acknowledge that s.143(1C)(b) provides that "where appropriate" a decision of the Commission must contain provisions enabling the employment of regular part-time employees, but the MBA has failed to persuade me as to the appropriateness of the variation sought. [103] I have decided to grant the CFMEU's s.111 (1)(g)(iii) and dismiss the MBA's application on the ground that further proceedings are not necessary or desirable in the public interest. I have taken into account the MBA's prima facie right to have it's application determined but in my view that right has been outweighed by the following factors: · the issue of a general part-time work provision in respect of this award was considered and rejected by Commissioner Merriman in 1999; · the "changed circumstances" since Commissioner Merriman's decision fall far short of being sufficient to satisfy me that I should reach a different conclusion for that reached by the Commissioner; and · the MBA's application to vary lacks sufficient merit to warrant it being granted. [104] I dismiss the MBA's application to vary the NBCIA 2000 . BY THE COMMISSION: VICE PRESIDENT Appearances: D. Murray for the Master Builders Association of New South Wales. I. Warren for the Building Industry Specialist Contractors Organisation of New South Wales and the Civil Contractors Federation. S. Sherman for the Australian Industry Group. R. Nassif for Australian Business Industry. C. Harnath for the The Master Plumbers' and Mechanical Services Association of Australia. S. Maxwell for the Construction, Forestry, Mining and Energy Union. Hearing details: 2001. Melbourne: November 12. Sydney: December 6. 2002. Sydney: May 10. August 2. December 18. December 19. Printed by authority of the Commonwealth Government Printer <Price code F> 1 Appearing on behalf of the Master Painters of Australia - NSW Association and respondent members of the Association of Wall and Ceiling Industries of NSW, the Australian Specialist Contractors Association and the Metal Roofing and Cladding Association of Australia. 2 Exhibit BISCO 1 at paragraph 5. 3 Exhibit BISCO 1 at paragraph 5. 4 Exhibit BISCO 2. 5 See Printing Industries Association of Australia and another v AFMEPKIU , PR918017, 25 June 2002 per Cargill C. 6 Transcript, 4 August 1998 at page 377 at lines 35-38. 7 Exhibit BISCO 3. 8 Transcript, 8 July 1998 at page 118 per Mr Grinsell-Jones representing the MBA and at page 119 per Mr Tomlinson representing AiG. 9 Transcript at pages 121-122. 10 Transcript at pages 198, 202, 203, 212, 213 and 506. 11 Transcript at pages 289, 311 and 509. 12 Transcript at pages 332-335. 13 Transcript at page 377. 14 Transcript at pages 424-425. 15 Transcript at page 198. 16 Print R7494 at paragraph 15. 17 Australian Education Union v State of Victoria ( Re AEU ), Print M7299, 30 November 1995 per Munro J. 18 Re Electricity Commission of NSW and another , Print M3058. 19 (1993) 48 IR 14 at 78; leave to appeal was refused: Print K7698. Also see Re AEU at 16. 20 (1983) 289 CAR 157. 21 Ibid at 162-163. 22 Transcript, 18 December 2002 at paragraph 409. 23 Transcript, 18 December 2002 at paragraphs 412-417. 24 See Exhibit MBA 2. 25 (1993) 50 IR 382 at 395. 26 Transcript, 19 December 2002 at paragraph 560. 27 "s.3 (ba) to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities..." 28 I also note that the MBA's enterprise bargaining arguments set out at paragraph 12 of this decision. I do not find this argument persuasive. It was largely undeveloped and unsupported by the evidence. 29 See Attachment C to Exhibit BISCO 1. 30 See Attachment D to Exhibit BISCO 1. 31 Exhibit BISCO 1 at paragraph 6. 32 PR921276 of 15 August 2002. 33 Transcript, 19 December 2002 at paragraph 777. 34 Status of ILO Conventions in Australia - 1994 , Department of Industrial Relations, Canberra, 1994, p.339. 35 See Appendix 5 to Exhibit CFMEU 1. 36 Transcript, 18 December 2002 at paragraphs 435-436. 37 Exhibit MBA 6. 38 Transcript, 18 December 2002 at paragraphs 221-229. 39 Ibid at paragraphs 231-239. 40 Ibid at paragraph 248. 41 Exhibit CFMEU 4 at paragraph 6. 42 Ibid at paragraph 5. 43 Royal Commission into the Building and Construction Industry, Discussion Paper 3 : Productivity and Performance in the Building and Construction Industry , May 2002 at page 33. 44 Exhibit MBA 4 at paragraph 4. 45 Exhibit CFMEU 3. 46 Transcript, 19 December 2002 at paragraphs 567-576. 47 Exhibit MBA 3. 48 Exhibit MBA 5. 49 Exhibit BISCO 2. 50 See statement of Mr John Sutton, Exhibit CFMEU 2 and the MBA correspondence of 20 December 2002 attaching a statement by Mr Peter Glover. 51 PR917250, 9 August 2002. 52 See the Award Simplification Decision , Print P7500, Principle 8 on page 33.