AG2002/1015, Transcript of Proceedings [2002] AIRCTrans 1065 (2 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT03020

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

AG2002/1015

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Hughes Roofing and Another for certification
of the Hughes Roofing Enterprise Bargaining
Agreement 2000-2002

MELBOURNE

2.57 PM, FRIDAY, 15 MARCH 2002

PN1

THE COMMISSIONER: Mr Loy, you are here representing the CFMEU, are you?

PN2

MR J. LOY: If it pleases the Commission.

PN3

THE COMMISSIONER: Yes. And Mr Hawkey, you are here representing a number of employers, I understand?

PN4

MR A. HAWKEY: Yes, in matters 1015, 1331, 1332 and 1333.

PN5

THE COMMISSIONER: Yes. What I think I will do, Mr Hawkey, is deal with your matters and then adjourn, because Vice President Ross wishes to see me, and I will come back down for the ones that don't involve you as quickly as I can. All right, Mr Hawkey, would you like to start dealing with the Hughes Roofing Pty Limited matter?

PN6

MR HAWKEY: Yes, sir. In respect to Hughes Roofing, this matter was filed out of time, and I would ask the Commission to exercise its discretion in respect to that, and allow the application to go forward.

PN7

THE COMMISSIONER: Why should I do that, Mr Hawkey?

PN8

MR HAWKEY: Essentially, sir, the agreement was signed off by the employer well within time.

PN9

THE COMMISSIONER: Yes, I note that it was signed by Mr Hughes on 3 October.

PN10

MR HAWKEY: That is right, sir.

PN11

THE COMMISSIONER: Who witnessed Mr Hughes' statutory declaration, do you know?

PN12

MR HAWKEY: Yes, sir. It would have been, sir, Senior Constable Farley of the Victorian Police at the Bendigo Police Station.

PN13

THE COMMISSIONER: Yes, thank you.

PN14

MR HAWKEY: And that was signed off on 3 October as well, sir. And, indeed, the employees voted on this matter, I think, in respect of this one on the same day.

PN15

THE COMMISSIONER: Yes, that is my understanding. Has there been any change in the composition of the work force since 3 October?

PN16

MR HAWKEY: I have a statutory declaration in respect of that. There has been a reduction of one in the work force. The remaining employee was an employee of the company at the time.

PN17

THE COMMISSIONER: So he was one of the two?

PN18

MR HAWKEY: Well, he was one of the two.

PN19

THE COMMISSIONER: and there has been no replacement of the person who has gone?

PN20

MR HAWKEY: There has been no replacement at all, sir.

PN21

THE COMMISSIONER: All right. You are tendering that then, Mr Hawkey; is that right?

PN22

MR HAWKEY: Yes, sir. I spoke with Mr Hughes yesterday afternoon.

PN23

THE COMMISSIONER: Yes, all right then. Now, Mr Loy, what have you got to say in regard to that? Do you support that?

PN24

MR LOY: Yes, we do. We would ask the Commissioner to exercise his discretion in support of the purposes of the Act.

PN25

THE COMMISSIONER: Yes. I will mark this A1.

EXHIBIT #A1 STATUTORY DECLARATION OF MR HUGHES

PN26

THE COMMISSIONER: I should say that I am concerned about the matters that are being dealt with this afternoon, Mr Hawkey, that are late, and I will deal with each of them as I go on. Mr Loy, I had cause to speak to Mr Wainwright about this issue of late lodgment of agreements from the CFMEU, and he has undertaken to speak to Mr Kingham about it. I would ask you to express my concern to Mr Kingham as well, because I know that I am going to be dealing with some agreements that are almost 10 months out of time in the course of the afternoon, and it is a matter of concern.

PN27

On the other hand, there is a public interest in actually having the agreements certified and activated, and I do, in consideration of the evidence lodged in this matter, exercise the discretion conferred on the Commission in section 111(1)(r) and section 111(2), to accept the late lodgment of this agreement. Thanks very much, Mr Hawkey, if you just continue to run me through then the matters in this agreement. If you would like to run me through any matters you are wanting to draw my attention to.

PN28

MR HAWKEY: Well, essentially, sir, all I would wish to do would be to rely on the content of the statutory declarations in support of the application.

PN29

THE COMMISSIONER: Mr Hawkey, you will be appearing in front of me quite regularly, won't you? I would like to have much more of a performance than that from you. I would like you to tell me about compliance with section 170LJ and about compliance with a no disadvantage test. I like the transcript to contain an outline of the evidence. It doesn't need to be very long. If you just tell me how was the agreement put to the employees, how was it explained to them and made available to them, how the vote was taken, all of those sorts of things, how it complies with the no disadvantage test.

PN30

MR HAWKEY: All of those things that are already answered within the statutory declaration, but yes, sir. In respect to those issues, a printed copy of the agreement, or draft agreement, as it was at the time, was given to each employee, and then they had that agreement for at least 14 days, and prior to 3 October, I think, was the day that they conducted their vote. On that day the employees unanimously accepted the agreement, and Mr Hughes, on receiving that advice, then proceeded to sign his part of the agreement and have the statutory declaration appropriately sworn.

PN31

The agreement itself, sir, is one that is intended to operate on top of the Roof Slaters and Tilers Award only when the people are engaged on commercial contracts, not on domestic housing. And, of course, essentially the provisions of this agreement mean that all the benefits that flow from it are on top of the base of the award which they are employed under. So there is no disadvantage to employees in that respect. The agreement itself is intended to run until 30 November of this year. But unless you have any other specific questions in respect to the agreement, sir, I would simply ask that you certify the agreement before you today.

PN32

THE COMMISSIONER: Yes. Mr Hawkey and Mr Loy, if you look at clause 6.2, the dispute resolution clause, it doesn't seem to, it really doesn't seem to leave very clear how disputes might finally be resolved. There is some capacity for matters to be referred to at this Commission, but not much. Is this a clause which - this is not the same as clauses that I have seen in quite a number of agreements involving the CFMEU. Yet again I have had cause to speak about dispute resolution clauses with Mr Wainwright, and I know that there is an intention when all these agreements come up for renewal in November of this year, to look at further changes to those clauses, just to leave the issue completely clear that matters are being referred to the Commission for conciliation and/or arbitration.

PN33

But I just notice that this one and a number of the ones that you have got, Mr Hawkey, don't appear very clear on that. Was that something which troubled the - - -

PN34

MR HAWKEY: No, it wasn't anything that troubled any of the parties, sir, because we took the view that in respect to an industrial relations matter, for example, it would be referred to the Industrial Relations Commission. If it was an occupational health and safety type problem it would be referred to an appropriate body in that respect.

PN35

THE COMMISSIONER: Well, it might in the future when you are re-visiting these agreements, because they will need to be re-visited later in the year. I suggest that you actually consider the wording and look at whether it wouldn't be advisable to further refine the wording. But I am prepared to accept it as it is. Yes, then, in this matter of Hughes Roofing Enterprise Bargaining Agreement 2000-2002, I do exercise the Commission's discretion to accept late lodgment of the document on the basis of the statutory declaration provided by Mr Hawkey, and other evidence provided by him, and noting that only one of the employees is still there, but no one else has taken the place of the employee who left.

PN36

I am satisfied that all the requisite statutory provisions are complied with, particularly those of section 170LJ, and section 170XA, and I do certify this agreement today, 15 March 2002. Thanks Mr Hawkey.

ADJOURNED INDEFINITELY [3.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATUTORY DECLARATION OF MR HUGHES PN26