AG2002/1135, Transcript of Proceedings [2002] AIRCTrans 1364 (26 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 VT03414

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2002/1135-1149
AG2002/1153-1175
AG2002/1177

APPLICATIONS FOR DETERMINATION
OF DESIGNATED AWARD FOR CERTIFIED
AGREEMENT

Applications under section 170XF of the Act
by Construction, Forestry, Mining and Energy
Union for determination of designated awards
for certified agreement

APPLICATIONS FOR CERTIFICATION
OF AGREEMENT

Applications under section 170LU of the Act
by Construction, Forestry, Mining and Energy
Union for certification of various agreements
and awards

MELBOURNE

10.23 AM, TUESDAY, 9 APRIL 2002

PN1

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union. Just if I can indicate, your Honour, that in relation to our section 170XF applications we would wish to withdraw those applications.

PN2

THE DEPUTY PRESIDENT: Thank you very much for that. Any other appearances?

PN3

MR A. BELL: I appear from Thompson Brothers Earthmoving.

PN4

THE DEPUTY PRESIDENT: Thank you very much, Mr Bell.

PN5

MR BELL: Thank you.

PN6

THE DEPUTY PRESIDENT: All right, Mr Wainwright. I take it there is no objections to hearing all these matters together is there?

PN7

MR WAINWRIGHT: No, your Honour.

PN8

THE DEPUTY PRESIDENT: All right. I notice your withdrawal of the - that is all of the section 170XF applications, is it?

PN9

MR WAINWRIGHT: Yes, your Honour.

PN10

THE DEPUTY PRESIDENT: Right. Correct me if I am wrong, Mr Wainwright, but a number of these are out of time, aren't they?

PN11

MR WAINWRIGHT: Yes, I had thought that if they were consecutive to the lodgment that they would be within time.

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR WAINWRIGHT: I have been informed today that some of these agreements are out of time.

PN14

THE DEPUTY PRESIDENT: By a short amount isn't it?

PN15

MR WAINWRIGHT: I am not sure, your Honour. I haven't got the lodging dates for each of these agreements.

PN16

THE DEPUTY PRESIDENT: You don't.

PN17

MR WAINWRIGHT: But I expect that it is for a short amount of time. For instance in relation to AG2002/1136, Wright Partitions, I believe that that application is within time.

PN18

THE DEPUTY PRESIDENT: It is, indeed.

PN19

MR WAINWRIGHT: And I have just been speaking with Mr Bell in relation to AG2002/1149 and he informs me that the documentation from the company was sent to the CFMEU late last year.

PN20

THE DEPUTY PRESIDENT: Yes.

PN21

MR WAINWRIGHT: So obviously if that was lodged in or around early February and that would be outside of time, so I think there is a - - -

PN22

THE DEPUTY PRESIDENT: It is indeed out of time.

PN23

MR WAINWRIGHT: There is a small - there is a spread there but your Honour I believe that the extensions required, if extensions were to be granted by the Commission, are not for a lengthy period of time and I would request that for those matters that are out of time for only a number of days that you exercise your discretion under section 111(1)(r).

PN24

THE DEPUTY PRESIDENT: Yes. I take it that the reason for these agreements being out of time was what - the time of year, administrative difficulties in the office?

PN25

MR WAINWRIGHT: Yes, and I do recall that in early February - - -

PN26

THE DEPUTY PRESIDENT: Both of those reasons? Both of those reasons?

PN27

MR WAINWRIGHT: Both of those reasons, but I can give you one specific reason. In early February, both of our photocopiers decided to pack it in and seek long service leave which did create us some significant difficulties in - - -

PN28

THE DEPUTY PRESIDENT: I hope you depreciated them, Mr Wainwright.

PN29

MR WAINWRIGHT: We treated them well.

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MR WAINWRIGHT: But that would be one of the central delays. In regard to the matter for which Mr Bell is here, I think clearly there is some particular delays to do with the agreement being sent from country Victoria to Melbourne, consultation then occurring and then obviously needing to photocopy and lodge in the Commission.

PN32

THE DEPUTY PRESIDENT: Yes. All right. Well, I will just check that issue, Mr Wainwright. Matter 1135, I think the vote was 4 October 2001. It was lodged 7 February. I think that makes it therefore some four months is it?

PN33

MR WAINWRIGHT: Three months out of time - three and a half.

PN34

THE DEPUTY PRESIDENT: Yes, three months out of time. Matter 1137. I think it is seven days out of time. Matter 1138. The vote was 13 December 2001, lodgment 7 February 2002, that makes it what, some three weeks out of time, approximately.

PN35

MR WAINWRIGHT: Approximately, yes, your Honour.

PN36

THE DEPUTY PRESIDENT: 1139, the vote was also 12 December, lodgment date 7 February 2002. Again approximately three weeks. 1140, 13 December was the vote. Again lodgment 7 December 2002. There is a surprising consistency in the vote time. Matter 1142, the vote was 19 December 2001, lodgment 7 February 2002, again about three weeks out of time. Matter 1144, I think it is three days out of time. Hardly a lengthy period. Matter 1145, again the vote was 4 December 2001, lodgment 7 February 2002 - some three weeks, perhaps four weeks. Matter 1146, seems to be considerably out of time. The vote was 24 July 2001, lodgment 7 February 2002, so it is some six months out of time.

PN37

I think we had better, having regard to that, it may be one I will need further information from you on, Mr Wainwright. On that matter we will adjourn it today on the basis that I would ask you, Mr Wainwright, to provide the Commission with a submission upon the issue of whether the composition of the workforce has changed, such as to alter the nature of the approval and secondly an explanation as to the reasons for delay.

PN38

Matter 1149, 14 December 2001 was the vote, it was lodged 7 February 2002. Again, about three weeks out of time. 1154, the vote was 13 December 2001, lodgment 8 February 2002, again about three weeks. 1155, the vote was 17 December 2001, lodgment 8 February. 1159, 1160, 1161, 1162 - again are in the same order of vote and lodgment time and therefore the same order of period of out of time. 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1171, 1172 and 1173 are either, I think a maximum, are either about three weeks out of time. I think 1173 is only four days out of time.

PN39

1172, the vote was 23 November, so that is five or six weeks out of time. In relation to that issue I would ask you to follow the procedure I have indicated earlier. In relation to 1146, if you could, Mr Wainwright. Now, the periods on all the others are of a relatively short period of time.

PN40

MR WAINWRIGHT: Well, your Honour, the process that you are suggesting in relation to the two matters - can I take it that you want me to follow that process in relation to 1135 as well?

PN41

THE DEPUTY PRESIDENT: Yes, what is 1135? Yes, indeed.

PN42

MR WAINWRIGHT: So, your Honour. Can I withdraw my application for an extension of the time limit for those - - -

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR WAINWRIGHT: - - - and seek an adjournment in those three matters.

PN45

THE DEPUTY PRESIDENT: Thank you very much, Mr Wainwright. I am sorry to put you through this administrative difficulty but it is important that the provisions of the Act are applied properly as you have indicated yourself on previous occasions.

PN46

MR WAINWRIGHT: Yes, your Honour.

PN47

THE DEPUTY PRESIDENT: Now, in relation to all those matters that are out of time, I take it the reason is as you have earlier indicated. First of all administrative difficulties of the nature of which you have outlined, secondly the time of year and thirdly you have, in any event, indicated that the procedures in your offices are changing in an endeavour to bring these matters within time, is that correct?

PN48

MR WAINWRIGHT: Yes, and I can further inform you that I think the reason why there is a bit of a cluster of these vote dates is because the construction industry shut down occurred in mid-December and went until 14 January. Certainly the relevant offices in the union weren't available over that period to sign statutory declarations and so forth.

PN49

THE DEPUTY PRESIDENT: Thank you. On the basis of those submissions I will grant the extensions of time as sought by you, under section 111, subsection (1), subsection I think (r) is it? - - -

PN50

MR WAINWRIGHT: Yes, your Honour.

PN51

THE DEPUTY PRESIDENT: - - - of the Workplace Relations Act 1996. Now I think those - hopefully the only contentious matters in relation to those matters that haven't been adjourned - do the applications state that they have been made under division 2, part VIB of the Act?

PN52

MR WAINWRIGHT: They do.

PN53

THE DEPUTY PRESIDENT: Is the employer party to the agreement of constitutional corporation or within the state of Victoria such as the special Victorian provisions apply?

PN54

MR WAINWRIGHT: They are, your Honour.

PN55

THE DEPUTY PRESIDENT: Has a written copy of the agreements been submitted for certification?

PN56

MR WAINWRIGHT: It has.

PN57

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

PN58

MR WAINWRIGHT: Yes, your Honour.

PN59

THE DEPUTY PRESIDENT: There are no interesting legal issues to be dealt with on that particular issue?

PN60

MR WAINWRIGHT: There are no bargaining fee clauses or anything of that nature.

PN61

THE DEPUTY PRESIDENT: Thank you. Are the agreements in respect of a single business or part of a single business and if part of a single business are they a geographically distinct part or a distinct operation or organisational unit within the single business?

PN62

MR WAINWRIGHT: Yes they are, your Honour.

PN63

THE DEPUTY PRESIDENT: Does the CFMEU have at least one member employed in these single businesses or part?

PN64

MR WAINWRIGHT: We do.

PN65

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

PN66

MR WAINWRIGHT: Yes, we are.

PN67

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

PN68

MR WAINWRIGHT: The employees have told us that they have either distributed the copies of the agreement or they have had copies of the agreement available to employees to peruse.

PN69

THE DEPUTY PRESIDENT: Yes. What steps did the employee take to ensure that before the agreement was approved the terms of the agreement were explained to all persons?

PN70

MR WAINWRIGHT: They made steps to either explain the agreement themselves or made it possible for the union to explain the agreement to the members.

PN71

THE DEPUTY PRESIDENT: Yes. Was the agreement capable of being made under section 170LL, ie as Greenfields agreements?

PN72

MR WAINWRIGHT: No, your Honour.

PN73

THE DEPUTY PRESIDENT: Right. 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 female, persons from a non-English speaking background or young persons?

PN74

MR WAINWRIGHT: I know of no steps in relation to any female or young employees but in relation to people from a non-English speaking background, the employers have indicated that it is their belief that those people had at least the requisite knowledge of written and spoken English to understand the agreement.

PN75

THE DEPUTY PRESIDENT: Yes, were there any women or young persons such as to require. I think it might be mandatory the explanations the explanations we are referring to. I am just checking that. I think section 170LT(7) states that the explanation must have taken place in ways that were appropriate, having regard to the person's particular circumstances and needs, and some examples are given. I think the issue is whether the explanations were given in ways that were appropriate having regard to their particular circumstances and needs. Was that the case, Mr Wainwright?

PN76

MR WAINWRIGHT: Well, as I have indicated, your Honour, I have not sought any specific instructions from the employers in relation to that issue so it is difficult for me to answer. What I can say is that in relation to, in particular, young people there are particular parts of the agreement that impact on apprentices and so forth.

PN77

THE DEPUTY PRESIDENT: Yes.

PN78

MR WAINWRIGHT: And it would be our expectation that those classifications of employees would receive specific instructions on what is in the agreement. But in relation to young workers who are not apprentices or in relation to female employees, we do not feel that there would be any part of the agreement that would require specific explanation for those categories of workers.

PN79

THE DEPUTY PRESIDENT: Thank you. What steps did the employer take to ensure that the employees to be covered by the agreement were provided with a reasonable opportunity to decided whether they wanted to make the agreement?

PN80

MR WAINWRIGHT: They were given the opportunity to discuss the agreement amongst themselves.

PN81

THE DEPUTY PRESIDENT: Yes. And I think we have already dealt with the issue of a valid majority have we not?

PN82

MR WAINWRIGHT: Yes, your Honour.

PN83

THE DEPUTY PRESIDENT: Yes. In each case there is an award in place, regulating the employment of these people?

PN84

MR WAINWRIGHT: Yes, your Honour.

PN85

THE DEPUTY PRESIDENT: I take it the agreement does not result in any reduction in award terms and conditions of employment?

PN86

MR WAINWRIGHT: It does not.

PN87

THE DEPUTY PRESIDENT: Do the agreements all include dispute settlement procedures?

PN88

MR WAINWRIGHT: They do.

PN89

THE DEPUTY PRESIDENT: Do they all include a nominal expiry date?

PN90

MR WAINWRIGHT: Yes, your Honour.

PN91

THE DEPUTY PRESIDENT: And it is not more than three years after the date on which the agreement will come into operation?

PN92

MR WAINWRIGHT: No, your Honour.

PN93

THE DEPUTY PRESIDENT: No. Are any provisions of the agreement inconsistent with the special termination of employment requirements?

PN94

MR WAINWRIGHT: They are not.

PN95

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

PN96

MR WAINWRIGHT: No, your Honour.

PN97

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

PN98

MR WAINWRIGHT: They do not.

PN99

THE DEPUTY PRESIDENT: Do any of the agreements contain any so called objectionable provisions?

PN100

MR WAINWRIGHT: No, your Honour.

PN101

THE DEPUTY PRESIDENT: No. Including preference clauses?

PN102

MR WAINWRIGHT: There is no preference clause in the agreement.

PN103

THE DEPUTY PRESIDENT: Thank you. On that basis I will certify the agreements as sought by the applicants on the basis of submissions put before me and the statutory declarations filed. Thank you very much for coming and I am sorry to delay you and these matters will stand adjourned.

ADJOURNED INDEFINITELY [10.40am]