AG2001/2585, Transcript of Proceedings [2002] AIRCTrans 1092 (3 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 VT03041

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2001/2585

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Construction, Forestry, Mining
and Energy Union for certification of
the CFMEU and Azzona Drainage Building
and Construction Industry Collective
Bargaining Agreement 1999-2000

MELBOURNE

1.13 PM, MONDAY, 18 MARCH 2002

Continued from 8.3.02

PN225

MR R. WAINWRIGHT: I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN226

MR P. SHELL: I appear on behalf of the Civil Contractors Federation, and their member, Azzona Draining Contractors Pty Limited.

PN227

THE VICE PRESIDENT: Mr Shell, what do you say about this application?

PN228

MR SHELL: Your honour, this matter was before you on 6 August last year, and it was reserved for further discussions. Those discussions - - -

PN229

THE VICE PRESIDENT: It was also before me on 8 March this year.

PN230

MR SHELL: Yes, I was going to move to that, it was. And after the initial hearing I went and spoke to the members and they explained the situation to me, and they continue their opposition to the certification of the agreement. Since that last hearing, Mr Wainwright did e-mail on February 11 asking what was the situation relating to Azzona Draining, and he asked me to respond. We returned phone calls a couple of times but we missed each other.

PN231

Subsequently those discussions didn't take place. However I did seek further clarification from the Company. Their situation, your Honour, is that they see themselves as largely operating outside the building and construction industry. They mainly specialise - - -

PN232

THE VICE PRESIDENT: Why did they sign the agreement?

PN233

MR SHELL: They were engaged to do a project for Bovis Lend-lease, your Honour, at the New Quay development in Docklands, and the Project Manager endorsed the copy that he signed with New Quay.

PN234

THE VICE PRESIDENT: Do you have a copy of that?

PN235

MR SHELL: I don't. That is one of the things that Company has advised me; they were not given a copy, they only got a blank and they still don't have a signed copy. And further they say to me they object to the terms of the agreement, and object to the ratification. But I was somewhat late getting here because I had to pick up a faxed form that they sent. Perhaps it might assist. I am sorry I haven't got copies because I picked it up from the forty-second level.

PN236

THE VICE PRESIDENT: Well, they have executed a statutory declaration - is this the position: they have executed a statutory declaration in support of the certification, they have signed a copy of the agreement - a director of the Company has signed a copy of the agreement.

PN237

MR SHELL: Could I both you for the name please, your Honour?

PN238

THE VICE PRESIDENT: Mr - well, I can show you the copy that is on my file.

PN239

MR SHELL: He is actually the Managing Director; I recognise his name. I was told by these instructions that it was deemed to be the Project Manager endorsed it without the - - -

PN240

THE VICE PRESIDENT: I will tell you what I will do. I will provide you with a copy of that page. Do you have a copy of the statutory declaration?

PN241

MR SHELL: No, I don't, your Honour.

PN242

THE VICE PRESIDENT: Okay, we will provide you with a copy of that, and if you can advise - I have already dealt with the relevant statutory tests in relation to this matter on the last occasion, 8 March. I understand there was some confusion on the last occasion. I went through all of the matters, but - - -

PN243

MR SHELL: Yes. The number for this one apparently was read out at the commencement of a whole bunch of other numbers that had 76 or 67.

PN244

THE VICE PRESIDENT: Yes.

PN245

MR SHELL: I didn't pick up on the first number which was mine. I went through to the end waiting for the matter to be called, and I had indicated to Mr Wainwright who was seeking my understanding of how we would treat it, and probably inadvertently - because there was quite a number of applications go through - didn't mention that there was going to be an objection, that I missed the calling, and therefore asked for it to be relisted.

PN246

THE VICE PRESIDENT: I don't need to go into at the moment whether I have in fact got power to - having heard and determined it - deal with the matter any further. My preference would be to provide the information to you which seems to clearly show that the Managing Director of the Company signed the agreement, they have signed a stat dec in support of it. There are cases which are authority for the proposition that once the agreement has been made between the parties it can't be resiled from later.

PN247

And it may be that further discussions with your client - or with your member - in light of the documentation may well resolve the matter, and the - - -

PN248

MR SHELL: It could well be an interesting circumstance if they still cling to the advice that they have given me, that they have endorsed at New Quay only, therefore its scope and application - - -

PN249

THE VICE PRESIDENT: Well, that endorsement doesn't appear on the copy of the application that is filed, and that is all I have got. So the issue may well arise, but it will arise in the context of a dispute that might arise in the future, and then the parties could argue the toss as to what is the true scope and application of the agreement. The matter before me is a narrower one, that is whether it meets the test for certification. So I will provide you with that material, if you can then advise me and Mr Wainwright as to where this matter is going from here, and if that can be done by close of business on Wednesday. Mr Wainwright.

PN250

MR WAINWRIGHT: Well, your Honour, I just want to clarify one or two matters in relation to undertakings that I gave to you in relation to this matter, and they were to hold discussions with the Company's representative. Now, I e-mailed Mr Cross on the day that he has noted, and called him on several occasions. I did call him at a period when he was very busy, and I recognised that. But none the less, as far as those undertakings to you go, they were discharged.

PN251

THE VICE PRESIDENT: There is no criticism of your conduct in relation to it, Mr Wainwright, it is really just to see if the provision of the information will clear up the point. If it doesn't, then we may be in for a larger scale argument. It seems to me there are at least two matters that would have to be determined. The first is, having dealt with the matter on 8 March, Mr Shell having announced an appearance in relation to it, but not on that occasion, because of a misunderstanding about whether the matter was being dealt with or not, having raised any objection, whether there is in fact power for me to reopen the matter.

PN252

The second is, there having been a signed copy of the agreement and a statutory declaration filed in support, whether I should - even if I am satisfied I have got jurisdiction - whether there is any merit in it.

PN253

MR WAINWRIGHT: Your Honour, the question of the appearance at the last hearing of this matter was the second point I was going to go on to. But in relation to what you have suggested, I am comfortable for that to run its course.

PN254

THE VICE PRESIDENT: Look, it may be that on receiving the material, Mr Shell will have a discussion with his member, and that might resolve the matter and may not need to go any further in relation to it. So I don't want us to get too far ahead of ourselves at this stage. I will adjourn that matter on that basis.

ADJOURNED INDEFINITELY [1.20pm]