AG2002/3111, Transcript of Proceedings [2002] AIRCTrans 1329 (22 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT03378

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2002/1311
AG2002/1312
AG2002/1313
AG2002/1314

CFMEU AND HARMAN UNDERPINNING AND
REBLOCKING BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 1999-2002

CFMEU & L.C.K. CONCRETE CONSTRUCTIONS
PTY LTD BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 1999-2002

CFMEU AND PANACHE DEVELOPMENT PTY LTD
BIULDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 1999-2002

CFMEU AND WESTERN LINE MARKING BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 1999-2002

Applications under section 170LJ and 170XF of the Act by
Construction, Forestry, Mining and Energy Union, Victoria Branch
and Another for certification of the above agreements and
determination of designated awards

MELBOURNE

10.16 AM, FRIDAY, 5 APRIL 2002

PN1

THE DEPUTY PRESIDENT: Mr Wainwright, are you the only person appearing?

PN2

MR R. WAINWRIGHT: To my knowledge, your Honour, yes.

PN3

THE DEPUTY PRESIDENT: Thank you very much, Mr Wainwright. I have one question, Mr Wainwright, in relation to agreement 2002/1311, the agreement currently only applies to part of a single business and it apparently isn't a geographically distinct part of the single business, rather part of the single business is described as, and I quote, "it only applies to commercial activities", end of quote. And quote, "When I am working in the domestic housing industry", that's clause 2.4 of the statutory declaration made by the employer, does that meet the requirements of the Act, Mr Wainwright?

PN4

MR WAINWRIGHT: I believe it does, your Honour, I believe what those comments on the employer's statutory declaration are attempting to clarify is the application clause of the agreement which indicates that it covers the purely construction work in Victoria as defined by the award which does exclude - - -

PN5

THE DEPUTY PRESIDENT: So if we go to section 170LU8 which is the relevant provision and correct me if I'm wrong, that is sufficient, is it?

PN6

MR WAINWRIGHT: I will just get that open, your Honour.

PN7

THE DEPUTY PRESIDENT: I think we have to look at B, Mr Wainwright, don't we?

PN8

MR WAINWRIGHT: Yes, a distinct operational or organisational unit. I believe that is sufficient to say that it is distinct operational or organisational unit that deals with the commercial construction as against the domestic work.

PN9

THE DEPUTY PRESIDENT: Yes, thank you very much. All right. Mr Wainwright, I take it you have no objection to these matters being heard together?

PN10

MR WAINWRIGHT: No, your Honour, they are all in substantially the same terms.

PN11

THE DEPUTY PRESIDENT: Yes. Do the applications state that they have been made under Division 2 of Part VIB of the Act?

PN12

MR WAINWRIGHT: Yes, your Honour.

PN13

THE DEPUTY PRESIDENT: Were the applications lodged no later than 21 days after the day on which the agreements were made by a valid majority?

PN14

MR WAINWRIGHT: They were.

PN15

THE DEPUTY PRESIDENT: Mr Wainwright, I think this is the first occasion on which you haven't asked me to exercise powers under section 111(1)(r) of the Act that I can recall? I'm not quite sure how to take this.

PN16

MR WAINWRIGHT: Your Honour, we have made special effort in the office which has caused me some great pain and anxiety. The vast majority of our applications under this section are now within time. There will still be applications that come to you that are beyond the 21 days for various reasons to do with those individual agreements but as a practice our applications are now within time.

PN17

THE DEPUTY PRESIDENT: Well, I must say it is difficult to deal with, given my past experience. Nevertheless that's a very good development and I thank you for those organisational changes. I think it is important that we comply with the Act and you have indicated the same on previous occasions. Are the employers party to the agreements, constitution or corporations within the meaning of the Act?

PN18

MR WAINWRIGHT: Yes, they are.

PN19

THE DEPUTY PRESIDENT: Have written copies of the agreements been submitted for certification?

PN20

MR WAINWRIGHT: Yes, they have.

PN21

THE DEPUTY PRESIDENT: Are the agreements about matters pertaining to the employment relationship?

PN22

MR WAINWRIGHT: Yes, your Honour.

PN23

THE DEPUTY PRESIDENT: Aside from the agreement we have already discussed are the agreements in respect of a single business or part of a single business?

PN24

MR WAINWRIGHT: Yes, your Honour.

PN25

THE DEPUTY PRESIDENT: Right. If the agreements relate to part of a single business are those parts either a geographically distinct part or a distinct operational or organisational unit within the relevant business?

PN26

MR WAINWRIGHT: They would be a distinct operational unit within the business.

PN27

THE DEPUTY PRESIDENT: In each case?

PN28

MR WAINWRIGHT: Yes. In each case where only part of the business is being regulated by the agreement.

PN29

THE DEPUTY PRESIDENT: They are all with the CFMEU, are they? It's the only union party?

PN30

MR WAINWRIGHT: The CFMEU is the only union party in these agreements.

PN31

THE DEPUTY PRESIDENT: Does the CFMEU have at least one member employed in the single business or part whose employment will be subject to the agreement?

PN32

MR WAINWRIGHT: Yes, we do.

PN33

THE DEPUTY PRESIDENT: Is the CFMEU entitled to represent the industrial interests of their members employed in those businesses?

PN34

MR WAINWRIGHT: We are.

PN35

THE DEPUTY PRESIDENT: What steps did the employers take to ensure that at least 14 days before any approval was given every person employed at the time whose employment would be subject to the agreements either had or had ready access to the agreements in writing?

PN36

MR WAINWRIGHT: Your Honour, the employers have indicated to us and to the Commission that they have provided copies of the draft agreement for distribution and that meetings were held both between management and the employees and between the union and the employees.

PN37

THE DEPUTY PRESIDENT: Thank you. What steps did the employer take to ensure that before the agreements were approved the terms of the agreement were explained to all the persons employed at the time whose employment would be subject to the agreements?

PN38

MR WAINWRIGHT: As indicated previously they've both provided the agreement and an explanation of it, the explanation has also been available from the union and the employers have indicated that each of the employees had at least a requisite knowledge of written and spoken English to understand the agreement.

PN39

THE DEPUTY PRESIDENT: Yes. What steps did the employer take to ensure that the explanation of the terms of the agreements given to the employees was appropriate having regard to the particular circumstances and needs of the employees concerned? In particular, what steps were taken in relation to employees who were women, persons from non-English speaking background or young persons?

PN40

MR WAINWRIGHT: I suppose I've already indicated the steps in relation to people from a non-English speaking background. I've got no instructions on what steps the employers took in relation to any female employees or young employees. The two statutory declarations that I have with me today indicate that there were no such workers employed in two of the companies.

PN41

THE DEPUTY PRESIDENT: Yes, but are there any issues in the agreement which would require special steps regarding women or young persons?

PN42

MR WAINWRIGHT: No, there are not.

PN43

THE DEPUTY PRESIDENT: There are not, thank you. I think you have indicated what steps the employer took to ensure that the employees to be covered by the agreements were provided with a reasonable opportunity to decide whether they wanted to make the agreement. Yes. Were the agreements approved by a valid majority of employees within the Act?

PN44

MR WAINWRIGHT: Yes, your Honour.

PN45

THE DEPUTY PRESIDENT: Is there in each case a federal or a state award that regulates any term or condition of employment of persons engaged in the same kind of work as that of the persons under the agreement?

PN46

MR WAINWRIGHT: There is, your Honour, and in each case it's the National Building and Construction Industry Award 2000.

PN47

THE DEPUTY PRESIDENT: Right. That is the only award, is it?

PN48

MR WAINWRIGHT: Yes.

PN49

THE DEPUTY PRESIDENT: Would certification of any of the agreements result in any reductions in terms and conditions for employment of employees covered by the agreement under that award?

PN50

MR WAINWRIGHT: No, your Honour.

PN51

THE DEPUTY PRESIDENT: Right. Do the agreements include procedures for prevent and settling disputes within the Act?

PN52

MR WAINWRIGHT: They do, at clause 9 and 10: Safety Dispute.

PN53

THE DEPUTY PRESIDENT: Clause?

PN54

MR WAINWRIGHT: Clause 9 for general disputes and clause 20 for safety disputes.

PN55

THE DEPUTY PRESIDENT: It's interesting. A separate safety dispute resolution procedure. Thank you. Do the agreements specify a date as the nominal expiry date?

PN56

MR WAINWRIGHT: They do, 30 November 2002.

PN57

THE DEPUTY PRESIDENT: Right. Is the nominal expiry date more than 3 years after the date in which the agreement will come into operation?

PN58

MR WAINWRIGHT: No, it is not.

PN59

THE DEPUTY PRESIDENT: Right. Are any provisions in the agreement inconsistent with the provision of division 3 of part VIA, an order by the Commission under that division or any injunction granted or any order made by the Court under that division?

PN60

MR WAINWRIGHT: No, your Honour.

PN61

THE DEPUTY PRESIDENT: Are there any matters under section 170LU subsection (3) which would lead me to refuse to certify the agreement?

PN62

MR WAINWRIGHT: No, your Honour.

PN63

THE DEPUTY PRESIDENT: Right. Do any provisions of the agreements discriminate against an employee on the stated grounds in the Act?

PN64

MR WAINWRIGHT: They do not.

PN65

THE DEPUTY PRESIDENT: Right. Does the agreement contain any so-called objectionable provisions within Part XA of the Act?

PN66

MR WAINWRIGHT: It doesn't.

PN67

THE DEPUTY PRESIDENT: Do any of the agreements contain any preference or similar type clauses?

PN68

MR WAINWRIGHT: No, your Honour.

PN69

THE DEPUTY PRESIDENT: There's no union role clause?

PN70

MR WAINWRIGHT: Union?

PN71

THE DEPUTY PRESIDENT: Role clause or such thing?

PN72

MR WAINWRIGHT: No, your Honour and at clause 7 where it refers to the relationship to the parent award, it does refer to the MBCIA as it was in 1990, an exclusion has been made to the preference clause that did exist in the award at that time.

PN73

THE DEPUTY PRESIDENT: That award has been simplified since, has it not?

PN74

MR WAINWRIGHT: It has.

PN75

THE DEPUTY PRESIDENT: It has but the MECA award has not? Yes. All right, thank you very much, Mr Wainwright. On the basis of the submissions you have put today and on the basis of the sworn statutory declarations accompanying the applications, I will certify the agreements as sought and on that basis the Commission is adjourned.

ADJOURNED INDEFINITELY [10.29am]