AG2001/2209, Transcript of Proceedings [2001] AIRCTrans 1093 (5 June 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7471

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2001/2209
AG2001/2210

APPLICATION FOR DETERMINATION OF
DESIGNATED AWARD FOR CERTIFIED
AGREEMENT

Application under section 170XF of the
Act by NC Cable Pty Ltd for determination
of designated award for certified
agreement

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LK of the
Act by NC CABLE Pty Ltd for certification
of the NC Cable Certified Agreement 2000

MELBOURNE

11.04 AM, THURSDAY, 17 MAY 2001

PN1

MS A. McGREGOR: I seek leave to appear on behalf of the applicant.

PN2

MR S.L. BOOTH: I appear on behalf of the CEPU in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: No objection to Ms McGregor having leave, is there? Leave is granted, Ms Mcgregor.

PN4

MS McGREGOR: Thank you. Your Honour, there are two applications today. The first one is the designation of an award pursuant to section 170XF of the Workplace Relations Act. If I could deal with that first. There is an outstanding proceeding before Commissioner Harrison in which the CEPU has attempted to rope the applicant into the award that we have used for the purpose of the no disadvantage test. Obviously we have determined that that is the most appropriate award to compare to until we are aware of whether or not the applicant has been roped in. I do not know if my friend has anything to say about that.

PN5

THE SENIOR DEPUTY PRESIDENT: I will hear from him in due course. You just proceed with your application.

PN6

MS McGREGOR: There is an amount of material that has been filed, your Honour. I will just go through them to make sure that you have a copy of everything that I have a copy of.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MS McGREGOR: There is an application for the designation of the award.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MS McGREGOR: The application for certification.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MS McGREGOR: The statutory declaration of Craig Freeman who is the general manager of the applicant. A statutory declaration of Jon Bale, of Daniel Morris and Scot Gardiner.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I have those.

PN14

MS McGREGOR: Your Honour, the applicant is a copy that is installing fibre optic cable networks in rural Australia. It has currently installed networks in Mildura and Ballarat and proposes to extend further into rural areas of Victoria assuming it obtains sufficient funding to do so. There are 33 employees. The proposed agreement will cover the installers of the fibre optic cables and the people who are known as the build crew and the supervisors at the first level but will not cover people who are maintenance employees, office employees, general managers and build supervisors.

PN15

In relation to the no disadvantage test it is apparent from the statutory declaration of Craig Freeman that this agreement does pass the no disadvantage test. If you look at schedule 1 - appendix 1, I apologise, of the proposed agreement you will see that there are three levels or classifications of employees with three different salary levels. The majority of employees are going to be within level 2. Level 1 being for new employees. Level 2 being for all of the employees that are probably currently employed and level 3 are for people who are more of team leader within the employees.

PN16

The employees on level 2 will be paid including attendance pay and if they have on call payment for a maximum of two days per week, $586.60 and on the award the same employees assuming that they were even level 3 would be paid $552.30, which a significantly less amount. Your Honour, I do not want to go on forever about the agreement if you have got no concerns about whether or not it passes the no disadvantage test. Did you have any particular concerns?

PN17

THE SENIOR DEPUTY PRESIDENT: No at this stage I do not. I might just ascertain from Mr Booth what the position of the organisation is. Are you seeking to be bound by this agreement?

PN18

MR BOOTH: We have had discussions. We certainly would like to be bound by the agreement and that was the decision of the CEPU Communications Division, Divisional Executives that if at all possible we would like to be. In relation to the agreement itself it was a matter of probably six to eight months of negotiations between the employees concerned who are members of the union and the company and the union itself which resulted in the agreement that is now currently before you.

PN19

As my friend has already pointed out, it was also during the course of those negotiations the subject of the union seeking to bring the company within the Electrical, Electronics and Communications Industry Award and application before Commissioner Harrison that is still awaiting a decision at this stage and certainly we view that that is the award that properly underpins this award. Apart from that we have no objections to the agreement and would seek its certification.

PN20

THE SENIOR DEPUTY PRESIDENT: In that sense then you support what Ms McGregor says about passing the no disadvantage test?

PN21

MR BOOTH: Yes, it does. That was very much the subject of eight months of negotiations and so forth to make sure it didn't - pass that no disadvantage test.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. Ms McGregor, what is the position of your client in respect to the union being bound by an agreement or an order being made to that effect?

PN23

MS McGREGOR: Your Honour, our client's position is that it is not yet clear whether the CEPU has coverage over the employees of the applicant and at that stage it submits that it would be inappropriate for the CEPU to be a party. The summary of the case of the applicant before Commissioner Harrison was that the CEPU had no coverage over NC Cables employees, so it would be my submission that it would be inappropriate for them to be bound by the agreement until such time as there is a decision in that proceeding.

PN24

THE SENIOR DEPUTY PRESIDENT: Well, what is the position with that then? Has that decision been reserved at this stage?

PN25

MS McGREGOR: No, your Honour, we are still awaiting a decision.

PN26

THE SENIOR DEPUTY PRESIDENT: That is what I mean, it is reserved?

PN27

MS McGREGOR: Yes, it has. Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Booth, there are certain requirements I suppose of the Act in relation to making an order that the agreement binds your organisation and I refer in particular to section 170M(3). First of all under paragraph (c) I am not aware of the Commission being notified in writing by your organisation.

PN29

MR BOOTH: No, that is very true.

PN30

THE SENIOR DEPUTY PRESIDENT: That is easily remediable. I understand that. But then under subsection (d) I have to be satisfied that you have at least one member whose employment will be subject to the agreement. That may not be disputed, I am not sure, but it is the next bit, it is whether you are entitled to have the member.

PN31

MS McGREGOR: We do not dispute that.

PN32

MR BOOTH: Yes, I mean certainly the company would not dispute that we have members within the organisation.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. And they are members who have requested that you be made party?

PN34

MR BOOTH: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: But then the issue arises as to whether you are entitled to have those members and that is something that is subject to a reserved decision of one of my colleagues which I perhaps should not interfere with. That is the concern I have.

PN36

MR BOOTH: Yes, and that is the source of our difficulty and we understand the position that both the Commission and I guess ourselves are in at the moment. The decision I think we argued it out in September, October last year and we are still awaiting a decision in relation to that matter and so we are really in the position - I mean obviously from the company's viewpoint they have stated their case and the reason why they do not wish us to be bound and clearly we would like to be so bound.

PN37

I do not have any ready suggestions other than perhaps a leave reserved for the union to make an application to be so bound at a future point once that decision is made.

PN38

THE SENIOR DEPUTY PRESIDENT: Ms McGregor, do you have any objection to me delaying the certification to enable the union to formally notify me that it wishes to become a party to be bound by the agreement? I mean that would, I anticipate, be 24 hours and the Act does not seem to require that an order binding an organisation in these circumstances be made at the same time as the certification. I would just reserve that question and when Senior Deputy President - is it Senior Deputy President Harrison or Commissioner Harrison?

PN39

MS McGREGOR: Commissioner Harrison.

PN40

THE SENIOR DEPUTY PRESIDENT: When Commissioner Harrison issues a decision on the question and assuming it is in favour of the union and there is no appeal, the issue of making of an order could then be raised with me.

PN41

MS McGREGOR: I would be content with that, your Honour, so long as the issue of whether or not the union can be bound by the agreement is a decision made in open court in order for us to put submissions on that issue.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. I would expect that I would be asked to list the matter again to deal with the question of whether or not an order should be made. I do not want to prevent the union from being able to make that application by certifying the agreement before the notification that they wished to be bound formally comes to me. That is why I suggested delaying the certification to enable the union to formally write to me, and I would reserve the position of whether they are to be bound. The agreement would be certified. The matter would be then adjourned and in due course I would expect to be notified whether the union is pursuing the application to be bound.

PN43

MS McGREGOR: I would be satisfied with that approach, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: And it would be listed to enable you to be heard on it.

PN45

MS McGREGOR: And obviously the applicant is very keen to have this agreement certified. It has been a long time coming and they would like to start operating under the agreement, so if I could ask my friend to as quickly as possible send that written notification to the Commission that would be appreciated.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, I think I do not - as I say, Mr Booth, I do not want to prevent you from being eventually able to make your application to be bound so if you could accommodate both the employer and myself by giving me a formal - and the employer a formal written notice?

PN47

MR BOOTH: Yes, well, certainly I can undertake to do that within the next 24 hours as per the Commission's request.

PN48

THE SENIOR DEPUTY PRESIDENT: Well, upon receipt of that I can indicate to you now that I am satisfied that the National Electrical Electronic and Communications Contracting Industry Award 1998 is to be determined as being the appropriate award for the purpose of determining whether the proposed agreement passes the no disadvantage test and a determination to that effect will be issued.

PN49

Subject to receiving the notification from the union that it wishes to be bound I am prepared now to indicate that I consider that the provisions of the Act require me to certify the agreement and an appropriate certification will be issued. The matter will be adjourned to a date to be fixed awaiting a decision by Commissioner Harrison upon the effect of any eligibility of the union to represent employees subject to this agreement and I would expect to be notified by one or other of the parties of the outcome of the hearing before Commissioner Harrison and I would expect that if there is a finding by him that the union does that eligibility and that finding is not overturned on appeal a request will be made by the union for re-listing of this matter to hear an application from it than order be made that it be bound by the agreement.

PN50

No such order will be made without hearing from the parties. If at that stage it becomes a consent matter it may not necessarily be a formal hearing, but if it is not a consent matter then the matter will be listed and the parties will be given the opportunity to make submissions as they see fit on that issue. Is there anything else for the record?

PN51

MS McGREGOR: No, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: If not then the matter is adjourned on that basis. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.18am]