AG2001/2249, Transcript of Proceedings [2001] AIRCTrans 1072 (4 June 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 7447
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2001/2249

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the Act
by Lees Shopfitters (Victoria) Pty Limited
for certification of the Lees Shopfitters
Enterprise Agreement 2000

MELBOURNE

2.15 PM, WEDNESDAY, 16 MAY 2001

Continued from 11.5.01

PN95

THE SENIOR DEPUTY PRESIDENT: Are there any changes to appearances in the matter?

PN96

MR R. WAINWRIGHT: Yes, your Honour, I appear for the Construction, Forestry, Mining and Energy Union.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wainwright. Well, I think the matter was left on the last occasion, to enable an adjournment to take place to see if the - or if Mr Noonan, who was appearing on behalf of individual employees, was to get some instructions as to how he was going to proceed with the objection. What is the position with that Mr Wainwright?

PN98

MR WAINWRIGHT: Well, your Honour, the position is that we have no instructions that people are willing to give evidence here. We re-state our submission that there has been duress, that there has been no valid majority on this agreement, and we further submit that the Commission should, under section 135(2)(a), send this agreement to a secret ballot at the workplace to resolve the question of whether or not a valid majority does or does not exist.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Neill.

PN100

MR NEILL: We have nothing further to add, your Honour, other than to request that the agreement be certified. As we submitted on the last occasion before the Commission, we believe that all requirements of Act, the regulations and the rules of the Commission have been satisfied, and accordingly we would ask that the agreement be certified.

PN101

THE SENIOR DEPUTY PRESIDENT: Mr Neill, how do you say that a valid majority was achieved? Was it by ballot, or in some other fashion?

PN102

MR NEILL: I believe it was achieved in a fashion other than by ballot, your Honour. In the declaration - in the questionnaire - I am just looking for - - -

PN103

THE SENIOR DEPUTY PRESIDENT: I think it just answers yes. It doesn't say how.

PN104

MR NEILL: I think you are right, your Honour.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes. But you have also presented a document which you say is signed by 14 of the 15 employees concerned.

PN106

MR NEILL: That is correct, your Honour, and that I have - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Or 16.

PN108

MR NEILL: - - - a further signed document today from the 15th person, who was absent on the original date of signing on 10 May, on Exhibit B1 that I submitted to the Commission on the last occasion. That exhibit indicated 14 or 15 employees no longer wish for the CFMEU to represent them, and that they be represented by their nominated representative Peter Heads. And I have a further document today, your Honour, which I would like to submit to the Commission, from one Sonny Salahi. And he was absent on that day, due to being on his honeymoon, your Honour. So I would just like to tender that as an exhibit.

PN109

THE SENIOR DEPUTY PRESIDENT: The last occasion when the matter was before me, you handed up and I did not mark - a copy of the original - exhibit B1, to which two names were added, and neither of those two names are the names on the document you just handed up?

PN110

MR NEILL: I have, and I believe if I recall correctly, your Honour, that we were not privy to those additional names.

PN111

THE SENIOR DEPUTY PRESIDENT: No, no, these are the names that I think a person from the company instructing you, actually added to. I think I asked, "Who were employees covered by the agreement, whose signatures didn't appear on B1?" And a document was handed up with two additional names, one of whom was a manager, and neither of them was who - who is Mr Salahi, that is all, I am just curious. Is there another additional person?

PN112

MR NEILL: There is another - there is one person I believe, your Honour, who has not signed this document, and I believe his name is Ray Alcott. I believe, that was the only employee.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, and the manager was Mr Patterson?

PN114

MR NEILL: I believe so, yes.

PN115

THE SENIOR DEPUTY PRESIDENT: I will mark this document Lees EBAs 2000 and signed by Mr Salahi as B2.

EXHIBIT #B2 LEES EBA 2000 SIGNED BY MR SALAHI

PN116

MR NEILL: I have one more exhibit, if your Honour pleases. I had a statement from one Matthew Morton, who says that he wishes to withdraw his agreement to have the CFMEU "represent me personally" in relation to Lees Enterprise Bargaining Agreement. He said:

PN117

I felt uncomfortable when approached by the Union, and made my decision in haste. I apologise for any inconvenience.

PN118

I would like to tender that document, your Honour.

PN119

THE SENIOR DEPUTY PRESIDENT: Well, I haven't at this stage, disclosed who the persons are, that Mr Noonan and Mr Wainwright are representing. I don't think, and I am not even looking at the document now, that they did hand up, so I don't recall who the names were. I don't think it is properly appropriate for me to deal with that. I intend actually, giving back to the Union that document that they did hand up to me, and I don't want it sitting on the file. I don't think it is appropriate. It was never marked as an exhibit, and it was really a matter of information that I sought from the Union at the time. I just don't think it is appropriate to leave it on the file, and I don't think I should put another document on the file that would suggest the name of someone who may have indicated a preference at a particular time. Mr Wainwright, do you want to add anything?

PN120

MR WAINWRIGHT: Yes, your Honour. I mean, I think, clearly from the process that has gone on up to date, with the Company gathering signatures, by dragging people into the office one by one, ticking off on the agreement, certain unnamed people then having reservations about the process and coming to the Union, and then the Company again going to the entire workforce and attempting to re-establish their position, provides a sound basis for the Commission to have some unease about the process that has gone in place at the applicant's workplace. And for the Commission to certainly consider the option of a secret ballot, to satisfy itself that there is a valid majority agreeing to this agreement.

PN121

We wish to further submit that there are some significant problems with the agreement. The agreement purports to apply itself both to off-site and on-site work. The redundancy provisions in the agreement would seem to be less than the provisions that would apply to on-site workers under the National Building and Construction Industry Award 2000. So there is a diminution of the conditions for on-site work. We say there is a confusion about the number of workers who are covered by the agreement. The original stat dec says 16, we had a number coming forward last week of 15, there seems to be some change this week. We believe that is a significant problem. And the disputes resolution procedure refers to an Act that has been repealed - I believe it has been repealed - it has certainly been replaced, it refers to the Industrial Relations Act 1988.

PN122

Further, the disputes resolution procedure clause may be in breach of the Workplace Relations Act's freedom of association provisions, in that it doesn't provide a role for union representatives to represent members, in the disputes resolution procedure. Sir, we believe there are certainly: (a) grounds for the Commission to impose a secret ballot, to satisfy itself that there has been a valid majority agreeing to this enterprise bargain, and secondly to look at whether or not the agreement places the employees in a lesser position than they might otherwise be. Thank you, your Honour.

PN123

THE SENIOR DEPUTY PRESIDENT: Do you want to make any comment on any of that Mr Neill?

PN124

MR NEILL: No, your Honour.

PN125

THE SENIOR DEPUTY PRESIDENT: I think I can deal with this matter now. This is an application for certification under the Workplace Relations Act 1996, of an agreement to be known as the Lees Shopfitters (Victoria) Pty Ltd Certified Agreement 2000 - sorry - the Lees Shopfitters Enterprise Agreement 2000. In the circumstances, I am prepared to grant an extension of time for the lodging of the application, as requested, and I do so grant such an extension to 26 April 2001, being the date upon which the application and supporting documentation were lodged in the Registry.

PN126

In relation to the certification itself, I note that leave has been granted to Mr Noonan and Mr Wainwright to appear on behalf unnamed employees, but the names of whom were supplied to the Commission on the last occasion. And, on behalf of the person or persons whom they represent, submissions have been made in relation to the question of valid majority, and also in relation to the contents of the agreement. In relation to the question of valid majority - there is nothing in the Act as I understand it, which requires that a ballot be conducted for the purposes of ascertaining a valid majority.

PN127

Unsubstantiated allegations that are made from the Bar table, make it difficult for the Commission, to form a view that there is any sound basis for questioning the existence of a valid majority in relation to this matter, when on the other hand, there are statutory declarations filed, which provide in effect, evidence to the contrary. In the circumstances, I am unable to accept an argument made on behalf of any of the employees, that there was no valid majority in relation to the making of this agreement, and I am not prepared to make any order or direction that a ballot of the relevant employees be conducted. There is just not enough material before me to justify reaching such a decision.

PN128

In relation to the contents of the agreement, I have heard what has been said on behalf of the person or persons whom Mr Wainwright and Mr Noonan represent in this matter. None of the matters that have been raised, in my view, provide sufficient justification for refusing to certify the agreement. I am therefore of the view, that having regard to the applicable provisions of the Act, I am required to certify the agreement and appropriate certification will therefore be issued as soon as possible. The matter is adjourned on that basis.

ADJOURNED INDEFINITELY [2.32pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B2 LEES EBA 2000 SIGNED BY MR SALAHI PN116