AG2001/4625, Transcript of Proceedings [2001] AIRCTrans 2484 (27 September 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

AG2001/4625
AG2001/4626
AG2001/4627
AG2001/4628
AG2001/4629
AG2001/4630

APPLICATION FOR CERTIFICATION
OF ENTERPRISE AGREEMENTS

Application under section 170LJ of the Act
by Kasman Construction Services Pty Ltd,
GRG Waterproofing Pty Ltd, Crane Hire &
Steel Erectors t/a Quality Rigging Services,
Ideal Waterproofing Pty Ltd, Pacifix
Enterprises Pty Ltd Mick Pangalla Pty Ltd and
The CFMEU for certification of various agreements

SYDNEY

10.13 AM, MONDAY, 3 SEPTEMBER 2001

PN1

THE COMMISSIONER: I will take appearances in all six matters and it is my intention to deal with them in the order that they have been called on in the hearing.

PN2

MR G. THOMAS: As it please the Commission, I appear for the Master Builders Association of New South Wales and its member companies involved in the matters before you.

PN3

MR W. KELLLY: If the Commission pleases, I appear for the CFMEU.

PN4

THE COMMISSIONER: Thank you, Mr Kelly. These matters are applications pursuant to section 170LJ of the Workplace Relations Act by Kasman Construction Services Pty Limited; GRG Waterproofing Pty Limited; Crane Hire and Steel Erectors trading as Quality Rigging Services; Ideal Waterproofing Pty Limited; Pacifix Enterprises Pty Limited and Mick Pangallo Pty Limited and the CFMEU in each case for the certification of agreements. Attached to each of the applications were statutory declarations by company directors and by the CFMEU Divisional State Secretary of various dates. I won't enumerate those statutory declarations, they are on the Commission's file.

PN5

In respect of each of the applications I have some questions which may or may not be dealt with by the parties submissions but could we deal with them in that series of numbers as called on by my associate? In the first instance we will deal with 4625. Mr Thomas?

PN6

MR THOMAS: Thank you, sir. This matter is an application for certification of an agreement between employees of Kasman Construction Services Pty Limited, CFMEU and the company. The company, Kasman Construction Services, carries on its business from premises in 157 Woodville Road, Merrylands in the State of New South Wales. It is a constitutional corporation and the details of its registration are included in the statutory declarations you have before you. The organisation party to this application, the CFMEU, is entitled to enrol as members persons employed by the company and indeed, one such person is a member of the CFMEU. I turn now to the employees themselves.

PN7

The employees were provided with drafts of the agreement. There were several meetings of employees to consider the agreement prior to a meeting held on 27 July 2001 to approve the agreement. That agreement was approved unanimously by the six employees of the company. Details of the employees in question are provided in the statutory declaration. I note that five of them are from a non-English speaking background. I also note for the records that the employees were given required notice of the meeting held to approve the agreement.

PN8

As far as the employees of non-English speaking background is concerned, those employees had the terms and conditions of the agreement explained to them in terms acceptable to them as individuals. The parent award for this agreement is the National Building and Construction Industry Award 2000. I note reference in the statutory declaration for the Building and Construction Industry State Award also. The agreement before you does have - - -

PN9

THE COMMISSIONER: Just before you move away from that, Mr Thomas. I note that in clause 4 the relationship of the parent award, the National Building and Construction Industry Award 2000 is specified. However, that is qualified somewhat by the third paragraph which says

PN10

The terms and conditions of the National Award as at 30 December 1996 are expressly preserved by this agreement.

PN11

Can you tell me whether the earlier agreement, the 1990 National Building and Construction Industry Award was rescinded at the time the 2000 award was made?

PN12

MR THOMAS: As I recall the order made by the Commission was that all clauses of the 1990 award were deleted and new clauses inserted in their place.

PN13

THE COMMISSIONER: So you're saying the 1990 award was not rescinded, it was varied?

PN14

MR THOMAS: It was varied, I believe, sir, yes.

PN15

THE COMMISSIONER: The reason I raised the question, Mr Thomas, and it is equally as relevant to you, Mr Kelly, is if the earlier award was rescinded then the third paragraph in the agreement in clause 4 doesn't mean a thing. It cannot exist if it was rescinded. Whatever the parties intentions may be to rely on a document that is rescinded is meaningless. To rely on a document that may have had some meaning as at a particular date and subsequently amended does have meaning.

PN16

MR THOMAS: Commissioner, I understand fully the point that you make and indeed it is an important point. I am in a position to clarify that, and I note here that print S0643 issued in Melbourne on 6 June 2000 by Commissioner Merryman ordered and I shall quote from the Commissioner's order:

PN17

Further to the decisions issued by the Commission on 23 July 1999, 7 October 1999 and 6 June 2000 ...

PN18

and there is reference to prints:

PN19

... the above award is varied as follows. By deleting all clauses, schedules and appendices and inserting the following.

PN20

and there follows a recitation of the provisions that are now referred to as the National Building and Construction Industry Award.

PN21

THE COMMISSIONER: Right, thank you, Mr Thomas. It is a matter I will raise with the parties every time I see it where an award has been replaced in whole, in total. It is a question of whether its earlier provision have any relevancy today or not. I think the constant referral back to awards that are some five years old, quite frankly, is just a waste of time because in the end if there is a dispute one day it will be about a current issue that might relate back to what the terms and conditions were at that time. I wouldn't want the dispute settling focus to then be upon whether the terms of the agreement are current at the time of the dispute or whether they are not.

PN22

It just seems to be a ridiculous proposition but be that as it may if the parties choose to settle their current enterprise agreements by in relation to a historical award which no longer has currency but is completely amended then so be it. I just don't want to be the bloke in the middle having to resolve that dispute one day in the future because I think it will be an unnecessary complication to the dispute settlement process.

PN23

MR THOMAS: Commissioner, I thank you for your observations on the record and certainly from the point of view of the Master Builders Association of New South Wales I shall certainly ensure that proper consideration is given to your comments and to your views. By way of my own comment the words as you doubtless aware are common in a large number of agreements certified, covering the building and construction industry. I note also your observation that you will be raising it with the parties where that provision continues as a feature of those agreements.

PN24

Sir, I return now to other features of the matter now before you.

PN25

THE COMMISSIONER: If I might short circuit your presentation on the Kasman matter, I can indicate to you I don't have any other questions in relation to it apart from what appears to be an absence of appendix C. There is reference in the agreement to appendix C but there is in fact no appendix C in the documents filed with the Commission. Are you able to correct that?

PN26

MR THOMAS: I can correct it and this will be subject to confirmation by my colleague, Mr Kelly, sir, but on examining the agreement I believe it to be the intention that what is appendix B concreting, was appendix C. There is no appendix C. The content that was intended to be appendix C is indeed appendix B. By way of further observation if you note that there is a part of appendix A referring to award agreement and classification relativities and a further part of appendix A referring to enterprise bargaining agreement and containing details of rates of pay. I think that indicates the intention of the parties was that there would be no appendix C.

PN27

THE COMMISSIONER: My curiosity was raised particularly in relation to clause 10.4 that relates to superannuation contributions. I note that superannuation entitlement as it is called, is in fact spelt out in appendix B, but quite frankly I was not to know whether it was intended for something else to be added to the agreement.

PN28

MR THOMAS: There are other agreements before you in this particular group, Commissioner, that likewise refer to an appendix C in clause 10, as in this matter appendix C doesn't exist. The subject matter is indeed dealt with in each case in the appendix B.

PN29

THE COMMISSIONER: How are apprentices dealt with for their travel purposes? Because they are paid according to appendix C?

PN30

MR THOMAS: By award, Commissioner.

PN31

THE COMMISSIONER: Appendix C to the award?

PN32

MR THOMAS: No.

PN33

THE COMMISSIONER: Under clause 13, "Travel," of the agreement?

PN34

MR THOMAS: Yes.

PN35

THE COMMISSIONER: Second last paragraph, it's on page 8 of the print of the enterprise agreement?

PN36

MR THOMAS: Yes.

PN37

THE COMMISSIONER: It says, "apprentices shall be paid", presumably that's their travel, "as per appendix C". Again, there is no appendix C.

PN38

MR THOMAS: Indeed, Commissioner, I doubt whether this company would be engaging apprentices because it is a concreting company and therefore its workforce would exclusively be labouring classifications.

PN39

THE COMMISSIONER: I accept that as the proposition and the explanation, Mr Thomas. It's not my agreement, it is your agreement. You are the one who has told me that apprentices will be paid their travel as per appendix C. I'm just asking why and where is appendix C? Someone has got to read these things more carefully otherwise it is going to be a long and painful process every time you come here. Quite frankly it's not my job to have to run these things through a fine tooth comb every time. That's your job, before you serve them up to me, for certification. I would like to make the process as easy as possible.

PN40

MR THOMAS: Thank you, Commissioner.

PN41

THE COMMISSIONER: That's the only other matter I have in relation to Kasman. Is there anything specific you want to mention in relation to Kasman?

PN42

MR THOMAS: No.

PN43

THE COMMISSIONER: All right, perhaps I can go to Mr Kelly. Is there anything specifically about the Kasman agreement you wish to mention, Mr Kelly?

PN44

MR KELLY: No, there isn't, Commissioner. I do note your earlier comments in relation to the award.

PN45

THE COMMISSIONER: All right. Can we move on to GRG Waterproofing?

PN46

MR THOMAS: Thank you, Commissioner. This application relates to an agreement between the company GRG Waterproofing Pty Limited, the CFMEU and employees of the company. GRG Waterproofing carries on its business from premises in 45 Combles Parade, Matraville East, New South Wales 2036. I note, Commissioner, that your associate asked today that a street address be provided for this company.

PN47

THE COMMISSIONER: We had a bit of difficulty reconciling the place of work being a PO Box number. We don't know how many workers you could fit into a post office box number, not too many. The question the statutory declaration does ask is the relative place of work, not the employer's address.

PN48

MR THOMAS: Those premises are the premises from where the business is carried on. The premises in 45 Combles Parade, Matraville East. In other respects, GRG Waterproofing is a constitutional corporation, details of its registration are incorporated in the statutory declaration that you have before you.

PN49

THE COMMISSIONER: If it abbreviates the process, I have no other questions in relation to GRG Waterproofing, except once again there is no appendix C. So do we take it that it is covered in appendix B?

PN50

MR THOMAS: There is no appendix C. It is covered in appendix B.

PN51

THE COMMISSIONER: Mr Kelly, do you have any questions in relation to GRG Waterproofing?

PN52

MR KELLY: No, Commissioner.

PN53

THE COMMISSIONER: All right. We go to AG01/4627, Crane Hire and Steel Erectors trading as Quality Rigging Services.

PN54

MR THOMAS: Sir, I confirm for the record that the company party to this agreement is Quality Rigging Services Pty Limited. In an email sent last Thursday by your associate you asked that question and I confirm that this is the answer.

PN55

THE COMMISSIONER: So the employer is Quality Rigging Services Pty Limited? It's not Crane Hire and Steel Erectors?

PN56

MR THOMAS: No, sir. In this particular case the company carries on its business from premises in 34 Browns Road, Kurrajong in the State of New South Wales. The company is a constitutional corporation and details of its registration are incorporated in the statutory declaration that you have before you. In this matter the CFMEU is entitled to enrol its members, persons employed by the company and indeed it does have at least one member so employed. The company has employed a total of nine employees. Those employees met on 30 July 2001 where they approved the agreement now before you. I note that the company employs - numbers one woman. I indicate for the record that the woman employed will not be covered by the terms and conditions of this agreement.

PN57

Their award is the National Building and Construction Industry Award 2000. I indicate to you, sir, that the certification of the agreement will not result in the reduction of the terms and conditions of employment. In other respects, I refer you to the contents of the agreement, at clause 18, a dispute settling procedure. That dispute settling procedure refers to an appropriate Tribunal. I can confirm for purposes of these proceedings that the appropriate Tribunal is the Australian Industrial Relations Commission. I also draw your attention to clause 5 which sets the nominal date of expiry for this agreement at 30 September 2002.

PN58

THE COMMISSIONER: I have no objection to this agreement apart from two brief ones. Mr Thomas, I take it that superannuation once again is covered by appendix B?

PN59

MR THOMAS: Yes.

PN60

THE COMMISSIONER: Not the non existent appendix C.

PN61

MR THOMAS: Correct.

PN62

THE COMMISSIONER: The final page of the documents tendered appear to be some sort of additional variations for inclusion into the draft. I don't know what those words mean and what it's meant to cover, but once again at the bottom in capitals it refers to the draft QRSCFMEU Enterprise Agreement will be applied in all other cases. Were these variations - are they incorporated into the agreement proper, are they additions to the agreement proper, is it intended as a separate appendix and if they are variations to the agreement proper were employees empowered to similarly vote on the content of these variations?

PN63

MR KELLY: I have consulted with my colleague on this matter, Commissioner, and I advise that the document in question is a working document that should not form part of the agreement, that indeed matters that are agreed between the parties are included in those pages up to page 21.

PN64

THE COMMISSIONER: So in any published document, that final page should not exist.

PN65

MR KELLY: Should not appear, no.

PN66

THE COMMISSIONER: I have no other questions in relation to this matter. Mr Kelly, do you have any submissions in relation to 4627.

PN67

MR KELLY: No, I can confirm the submissions of Mr Thomas, Commissioner.

PN68

THE COMMISSIONER: Thank you. We move on to AG4628, Ideal Waterproofing.

PN69

MR THOMAS: Commissioner, this is an agreement between Ideal Waterproofing Pty Limited and CFMEU and employees of the company. The company carries on its business from premises in 20 Carlyle Street, Wheelers Heights in the State of New South Wales, and it is a constitutional corporation. The details of its registration are included in the statutory declaration that you have before you. Commissioner, the CFMEU is entitled to enrol as members persons employed by the company and indeed it has at least one such member so employed by that company.

PN70

Employees of this company met on 31 July 2001 and approved the agreement. There are two employees of the company at that date, being the employees of the company did not include any person in a designated group. As far as the agreement itself is concerned, the parent award is the National Building and Construction Industry Award certification of the agreement will not result in a reduction in terms and conditions of employment. These conditions included in the agreement are conditions common with the commercial building and construction industry award and are in advance of conditions generally set out in the safety net award, the National Building and Construction Industry Award 2000.

PN71

I draw your attention to clause 18 which sets out procedures for dealing with disputes arising under the agreement. I note for the record that the appropriate Tribunal for purposes of this agreement means the Australian Industrial Relations Commission. I also draw your attention to clause 5 which provides a nominal expiry date of 30 September 2002. I believe, in other respects, Commissioner, this agreement meets the statutory requirements of the Act and accordingly I submit that you proceed to certify the agreement.

PN72

THE COMMISSIONER: Mr Kelly?

PN73

MR KELLY: I don't have anything to add, Commissioner.

PN74

THE COMMISSIONER: 4629, Pacifix Enterprises Pty Limited and the CFMEU.

PN75

MR THOMAS: Thank you, Commissioner. This matter relates to an agreement between the employees of Pacifix Enterprises Pty Limited and the CFMEU and employees of the company. The company carries on its business from premises in 23 Short Street, Canterbury in New South Wales and it is a constitutional corporation. I note that registration details are included in the statutory declaration that you have before you. As far as the employees are concerned there are a total of three employees of the company, at least one of those persons is a member of the CFMEU and the CFMEU is entitled to enrol as members persons employed by the company. Those employees met on 30 July where they approved the agreement now before you. Sir, in terms of the agreement itself, I note that the parent award is the National Building and Construction Industry Award 2000. I also confirm for the record that certification of the agreement will not result in a reduction in terms and conditions of employment for the persons covered by the agreement.

PN76

As far as other requirements of the Act are concerned, sir, I draw your attention to clause 18, which sets out procedures for dealing with industrial disputes. I confirm for the record that a reference to the appropriate Tribunal in that clause means the Australian Industrial Relations Commission. I also draw your attention to clause 5 which provides a nominal expiry date of 30 September 2000. Commissioner I submit that in other respects this agreement meets the statutory requirements of the Act and that you now proceed to certify the agreement before you.

PN77

THE COMMISSIONER: Thank you, Mr Thomas. Mr Kelly, any submissions in respect of 4629?

PN78

MR KELLY: No, I don't have anything to add, Commissioner.

PN79

THE COMMISSIONER: Finally in this batch can we move to 4630, Mick Pangallo Pty Limited and the CFMEU.

PN80

MR THOMAS: Thank you, Commissioner. This application relates to an agreement between Mick Pangallo Pty Limited the company, the employees of the company and the CFMEU. The company carries on its business from premises in 173 Southcreek Road, Dee Why in New South Wales and it is a constitutional corporation, registration details for which are included in the statutory declarations that you have before you. Sir, the company employees a total of six persons, and of those six at least one is a member of the CFMEU. The CFMEU is entitled to engage as members, employees of the company. Those employees were given notice, appropriate notice of a meeting that was held of 27 July 2001 to approve the agreement.

PN81

All six employees in question voted to approve the agreement. I note that those six employees all come from a non-English speaking background. In the case of those individuals each had the contents and terms of the agreement, explained to them in a fashion acceptable to them as individuals. I note that the parent award is the National Building and Construction Industry Award 2000 and that certification of the agreement will not result in a reduction in the terms and conditions of employment. I note that the agreement before you contains conditions that are common within the commercial building and construction industry in New South Wales and they are in excess of the safety net minimum standard provided in the parent award.

PN82

I draw your attention to clause 18 which sets out dispute settling procedures and confirm that reference in that clause to the appropriate Tribunal means the Australian Industrial Relations Commission. I also draw your attention to clause 5 which sets a nominal expiry date of 30 September 2002. In other respects, sir, I submit that this agreement meets the statutory requirements of the Act and accordingly that you proceed to certify the agreement you have before you. As the Commission pleases.

PN83

THE COMMISSIONER: Thank you, Mr Thomas. Mr Kelly?

PN84

MR KELLY: I don't have anything to add, Commissioner.

PN85

THE COMMISSIONER: All right. Thank you for all those submissions in respect of the six matters. All these matters numbered AG2001/4625, 4626, 4627, 4628, 4629, 4630 are applications by various employers and the CFMEU for certifications of agreements under section 170LJ of the Act. The agreement applies to the operations of the employers at their various named operation centres. The employers are constitutional corporations for the purpose of subsection 170L(i)(a) and thus the agreements are applicable to single businesses parts of single businesses or single places of work for the purpose of section 170L(i)(b) of the Act.

PN86

On the basis of the submissions of the parties and the statutory declarations filed in accordance with rule 48(2) I am satisfied that each of the agreements meets the relevant requirements of section 170LJ. I am also satisfied of those before me that there are no grounds for refusing the agreements under section 170LT or section 170LU of the Act. In each of the relevant cases I have had identified to me those employees referred to in subsection 170LT(7) and am satisfied those employees were consulted and informed of the matters described in subsection 170LJ(3) in an appropriate manner and that the effects of the terms of the agreement were properly explained to them.

PN87

Consequently I'll certify each of the agreements under section 170LT of the Workplace Relations Act 1996 with effect from today's date, 3 September 2001 and each of the agreements will remain in force until 30 September 2002.

PN88

That concludes the first six matters.

ADJOURNED INDEFINITELY [10.48am]