AG2002/2464, Transcript of Proceedings [2002] AIRCTrans 2207 (14 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N VT04290
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2002/2464
AG2002/2504-2511
AG2002/2750
AG2002/2548
AG2002/2668
AG2002/2467-2468
AG2002/2565

APPLICATIONS FOR CERTIFICATION
OF AGREEMENT

Applications under sections 170LJ and 170LK of the Act
for certification of various agreement

APPLICATION FOR DETERMINATION OF DESIGNATED
AWARD FOR CERTIFIED AGREEMENT

Application under section 170XF of the Act
for determination of designated award for
certified agreement

MELBOURNE

10.39 AM, MONDAY, 3 JUNE

AG2002/2464

Application under section 170XF of the Act
for determination of designated award for
certified agreement

Application under section 170LJ of the Act
for certification of the Multi Hues Pty Ltd
and CFMEU Building and Construction Industry
(Finishing Trades) Collective Bargaining Agreement
1999-2002

PN1

MS M. McKENZIE: I represent the Finishing Trades Association.

PN2

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Ms McKenzie, this matter appears to be in order other than that it would appear from the information before me that the meeting of which approval was given took place on 6 July 2001 and the application was not lodged until 6 May 2002. Subject to what Mr Wainwright says, perhaps the matter should also be adjourned on a similar basis to the previous matters and you would be given 21 days to advise whether you wish to proceed.

PN4

MS McKENZIE: Thank you.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Wainwright, what do you say?

PN6

MR WAINWRIGHT: Well, your Honour, similar to 2457 I believe this is a matter when a fresh valid majority vote should be secured from the workforce and information should be provided to the Commission as to whether the composition of the workforce has changed in the year since the first vote.

PN7

THE SENIOR DEPUTY PRESIDENT: Well, they are certainly the factors that the Commission would want to have regard to, Mr Wainwright, but I think what I should do is adjourn the matter and enable Ms McKenzie to obtain some instructions and advise me within 21 days as to whether her member wishes to proceed with the matter and I will deal with it on that basis at this stage. But I would make it clear that agreements that are filed or applications that are filed for certification of agreements almost a year after the agreement is supposed to have been approved would require a considerable amount of confirmatory information from the parties to satisfy the Commission that that agreement should then be certified and should not be the subject of a further discussion with the employees concerned. The matter is adjourned on that basis.

AG2002/2506
AG2002/2507

Applications under section 170LJ of the Act
for certification of the CFMEU and Dwyer Constructions
(VIC) Pty Ltd Building and Construction Industry
Collective Bargaining Agreement 1999-2002 and
the CFMEU and Fratelli Tiling Pty Ltd Building
and Construction Industry Collective Bargaining
Agreement 1999-2002

PN8

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN10

MR WAINWRIGHT: In relation to AG2002/2507, systematic to what has been occurring with some of the other agreements, a problem has occurred in our software in keying in the valid majority vote date. In an attempt to fix that problem the incorrect vote date has been included and it says the 7th when it should say the 17th and that is a matter for which I have to take full responsibility. In relation to - - -

PN11

THE SENIOR DEPUTY PRESIDENT: That is your handwriting is it?

PN12

MR WAINWRIGHT: That is my handwriting and my advice to the secretary and I left off the one, so I am going to castigate myself most severely. But in relation to that application, your Honour, we would seek similar to earlier applications three weeks to furnish the Commission with a fresh statutory - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Well, Mr Wainwright, I will be lenient towards you. I won't castigate you. I can apprehend these things happening. If that is what you are telling me, it is your handwriting and it is your mistake, then I am prepared to accept that and take the information from the employers's statutory declaration as being correct.

PN14

MR WAINWRIGHT: Thank you, your Honour. In relation to the other application the CFMEU submits that the requirements of section 170LJ and section 170LT have been met and we would seek the certification of that agreement.

PN15

THE SENIOR DEPUTY PRESIDENT: Well, do you wish to seek certification of the other agreement on the basis that I am prepared to accept the employer's statutory declaration as being correct?

PN16

MR WAINWRIGHT: Yes, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Well, in relation to both these applications and on the basis of the statutory declarations that have been filed by the parties and the submissions made this morning and in particular the information provided by Mr Wainwright as to the correct date of the approval of the agreement which is the subject of matter AG2002/2507, I am of the view that having regard to the applicable provisions of the Act I am required to certified the agreements. An appropriate certification will be issued in each matter and those matters are adjourned on that basis.

AG2002/2504, 2505, 2508, 2509, 2510 and 2511

Applications under section 170LJ of the Act
for certification of the CFMEU and P.O. Staff
Management Services Pty Ltd Building and Construction
Industry Collective Bargaining Agreement 1999-2002;
CFMEU and Australian Hebel Works & Texture Coatings
Building and Construction Industry Collective Bargaining
Agreement 1999-2002; CFMEU and Estcourt Earthmoving Pty Ltd
Building and Construction Industry Collective Bargaining
Agreement 1999-2002, CFMEU and Wandin Earthworks Pty Ltd Building and Construction Industry Collective Bargaining
Agreement 1999-2002; CFMEU and Citywide Precast Pty Ltd
Building and Construction Industry Collective Bargaining
Agreement 1999-2002; and CFMEU and BCD Painters Building
and Construction Industry Collective Bargaining Agreement
1999-2002

PN18

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union in each of the matters listed.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wainwright.

PN20

MR WAINWRIGHT: Your Honour, in relation to matter AG2002/2504 the CFMEU received correspondence from your office. My review of the file shows that the employer's statutory declaration refers to 20 employees and a typographical error has occurred on the CFMEUs statutory declaration. In those circumstances we would seek three weeks to supply you with an amended statutory declaration.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. I think in a sense more than a typographical error, the original figure agreed with the employer and it seems to have been crossed out and then in handwriting another figure of the number of employees been put in. So you might just want to check that. But we will put that one matter aside on that basis. In relation to the other matters?

PN22

MR WAINWRIGHT: In relation to the other matters, your Honour, the CFMEU submits that the requirements of section 170LJ and section 170LT have been met and we would seek the certification of those agreements.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. In relation to matter AG2002/2504 that matter is adjourned to enable the union to provide within 21 days an amended statutory declaration going in particular to the question of the number of employees who are covered by the agreement. In relation to the balance of the matters, on the basis of the information contained in the statutory declarations that have been filed by the parties and the submissions made at the hearing this morning I am of the view that having regard to the applicable provisions of the Act I am required to certify the agreements. An appropriate certification will therefore be issued in each matter. The matters are adjourned on that basis.

AG2002/2750

Application under section 170LJ of the Act
for certification of the National Gallery
of Victoria Site Agreement: Atherton Pty Ltd

PN24

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union.

PN25

THE SENIOR DEPUTY PRESIDENT: I think this is not a matter to which your organisation is a party, is it, Mr Wainwright?

PN26

MR WAINWRIGHT: I would be happy if you tell me that, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: This is a CEPU application. The documents have been signed by Mr Sechus on behalf of the Plumbing Division. Mr Cooney, are you appearing in the matter?

PN28

MR COONEY: Yes, your Honour, but we haven't had any prior notification or photocopy, it is not working.

PN29

THE SENIOR DEPUTY PRESIDENT: When you say you haven't had any prior notification what do you mean by that? The notice of listing indicates that it was sent to your organisation and marked for your attention.

PN30

MR COONEY: What was the fax number on that, your Honour? What was the fax number on that, your Honour?

PN31

THE SENIOR DEPUTY PRESIDENT: 96632613.

PN32

MR COONEY: Okay.

PN33

THE SENIOR DEPUTY PRESIDENT: It was marked for your attention, Mr Cooney. One of the problems with the matter is that it doesn't contain any date of meeting and it doesn't contain details of employees and it is lodged as a section 170LJ application. My past experience of these matters is I think they have often been lodged as those Greenfields applications rather than section 170LJ applications on the basis that at the time there are no employees anyway.

PN34

MR COONEY: Yes, your Honour, I am not actually aware of the notification as I said, but I mean it could well have been the employer's application.

PN35

THE SENIOR DEPUTY PRESIDENT: It is an employer's application and I think the appropriate way to deal with it is just to adjourn it and contact will have to be made with the employer to see how the matter is to proceed and you may wish to follow it up yourself.

PN36

MR COONEY: Yes, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: So that matter will just be adjourned on that basis.

AG2002/2548

Application under section 170LJ of the Act
for certification of the CFMEU and Salander
Building Services Collective Bargaining Agreement
1999-2002

PN38

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Wainwright.

PN40

MR WAINWRIGHT: Your Honour, in relation to this matter the CFMEU has received correspondence from your office. It seems that the documentation filed with the Commission is not the original statutory declaration or the original agreement as signed by the parties. Your Honour, I have reviewed our file. The file does not contain the originals either. I have no explanation as to why a copy has been filed with the Commission and I would seek that you exercise your discretion to accept the copies of the statutory declaration and the agreement.

PN41

THE SENIOR DEPUTY PRESIDENT: Well, I think there is an explanation. This is a matter which originally in another form came before Vice President Ross and was one of those matters that he adjourned and required the union to file a further statutory declaration within a certain time. That wasn't done and he dismissed the original application and what the union has now done has filed the statutory declaration together with a new application accompanied by copies of the original documentation and in those circumstances having reviewed both files I would be prepared to waive the requirement for the filing of the originals of the documents and to proceed to certify the matter, if that is not contrary to the provisions of your organisation.

PN42

MR WAINWRIGHT: No, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: Or the employer. So we can proceed on that basis?

PN44

MR WAINWRIGHT: Yes, your Honour. On that basis the CFMEU submits that the agreement should be certified.

PN45

THE SENIOR DEPUTY PRESIDENT: This is an application by the Construction, Forestry, Mining and Energy Union for the certification of an agreement between it and Salander Building Service. The agreement is to be known as the CFMEU and Salander Building Service Collective Bargaining Agreement 1999 to 2000. The application was lodged in the registry on 13 May 2002. The copies of the agreement and the statutory declarations accompanying the application are photocopies of the agreement and declarations that were lodged in support of an earlier application.

PN46

Certification of the earlier application was refused by Vice President Ross by a decision issued on 9 May 2002, which can be found in print PR917606. The basis for the Vice President's decision was that the application had not been made within the 21 day time period prescribed by section 170LM(2)(a) and insufficient material had been filed in support of an extension of the prescribed time for the making of the application. T

PN47

he parties to this application seek to rely upon the documentation lodged in support of the earlier application and upon a further statutory declaration stating that the agreement covered only one employee and that that employee had been at the time that the original agreement was made in November 2001 the only employee of the employer, that that employee at that time approved the original agreement, that the employee continued to be the only employee of the employer and that that employee was still supportive of the agreement being certified.

PN48

In the circumstances I am prepared to extend the time for the lodging of the application to 13 May 2002 and to dispense with the requirements of rule 48(1)(b) and 48(2) of the Rules of the Commission. On the basis of the material before me, including the documentation filed in support of the earlier application and the submissions made at the hearing today, I am of the view that having regard to the applicable provisions of the Act I am now required to certify the agreement. An appropriate certificate will therefore be issued as soon as possible. The matter is adjourned on that basis.

AG2002/2668

Application under section 170LJ of the Act
for certification of the Melbourne Cement
Facilities Enterprise Bargaining Agreement 2001-2003

PN49

MR A. HAWKING: I seek leave to appear in this matter for Australian Cement Holdings Pty Ltd and Independent Cement and Lime Pty Ltd, trading as Melbourne Cement Facilities.

PN50

MS Z. ANGUS: I appear on behalf of the Australian Workers Union and I have no objection to Mr Hawking's appearance.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Hawking.

PN52

MR HAWKING: Sir, this matter was filed I suspect about 16 days out of time. I ask that the Commission use its discretion under section 111(1)(r) to allow the matter to proceed by way of extension of time. I can assure the Commission that I have spoken with the company and there has been no change in the composition of the workforce subsequent to the vote being taken in respect to the agreement. Other than though, sir, we rely on the content of our statutory declaration and say to the Commission that the agreement meets the requirements of the Act and ask that you certify. If the Commission pleases.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Angus.

PN54

MS ANGUS: Yes, your Honour. The union likewise supports Mr Hawking's application for an extension of time and overall agrees that the terms of the agreement comply with the requirements of the Act and we seek its certification.

PN55

THE SENIOR DEPUTY PRESIDENT: In these circumstances in this matter I am prepared to grant an extension of time for the lodging of the application and I grant such an extension to the date upon which the application and supporting documentation were lodged. In relation to the application itself, on the basis of the information contained in the statutory declarations that have been filed and the submissions made this morning I am of the view that having regard to the applicable provisions of the Act I am required to certify the agreement.

PN56

An appropriate certification will therefore be issued and forwarded to the parties as soon as possible and again I thank the representatives for their patience.

AG2002/2467
AG2002/2468

Application under section 170LK of the Act
for certification of the Maintenance Resource
Engineering Pty Ltd Shell Geelong Refinery
Mechanical Enterprise Agreement 2002-2005

Application under section 170XF of the Act
for determination of designated award for certified agreement

PN57

MR BURCHARDT: I seek leave to appear on behalf of the company, Maintenance Resource Engineering Pty Ltd.

PN58

MS A. GOOLEY: I seek leave to intervene on behalf of the AMWU and the ETU in this matter.

PN59

THE SENIOR DEPUTY PRESIDENT: And your name?

PN60

MS GOOLEY: Sorry, Gooley, A.

PN61

MR BURCHARDT: The application for intervention is opposed, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: What is the basis, Ms Gooley?

PN63

MS GOOLEY: Your Honour, the AMWU and the ETU have been involved in negotiations with this company for an LJ agreement over a substantial period of time. They met as early ago as last Thursday to continue those negotiations and a meeting is planned, as I am instructed, for 13 June for continuation of those negotiations for an LJ agreement. At no stage during those negotiations, I am instructed, has the company advised the unions involved that it was intending making an application for an LK agreement.

PN64

The union has not had an opportunity as a result of that to consult with - well, to examine the agreement, to have discussions with members if any are employed to determine whether those members want the union involved in those negotiations. In fact as early ago as Thursday as I understand it the company advised the unions involved that there would be no electrical or mechanical employees engaged until at least January 2003. We seek leave to intervene pursuant to section 43(2)(a) of the Workplace Relations Act and seek an adjournment of these proceedings to enable the unions to consider whether it wishes to make an application to be considered a party to these agreements.

PN65

As I say, we have not had any warning of this application and we wish to avoid unnecessary waste of the Commission's time in that if the Commission proceeds to certify it at this stage the union, as was the TWU in the K & S Freighters Pty Ltd, may need to appeal that decision as a party agreed by a decision to certify at this point. So what we are seeking is an opportunity for this matter to be stood down to enable the parties to consider their respective positions.

PN66

THE SENIOR DEPUTY PRESIDENT: Do you say that you fit within 43(2)(a), do you?

PN67

MS GOOLEY: I am saying we may, your Honour, and we seek an adjournment to enable that to be determined.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Burchardt.

PN69

MR BURCHARDT: Your Honour, there are only six persons sought to be covered by the two agreements that are sought to be certified. The statutory declarations that I will be seeking leave to tender, which I gather at least in general terms advance notice may have been communicated to your associate, shows that none of those six people have requested the union to act on their behalf. Accordingly it is quite impossible for the union to come within the terms of section 170LK(4) to obtain the relevant authority which would then ground the possible foreshadowed application under section 43(2)(a), and as is implicit in Ms Gooley's argument, that is the only possible avenue open to the unions to seek to intervene.

PN70

Is your Honour familiar with the decision of Deputy President Duncan also involving Maintenance Resource Engineering given a relatively short while ago - sorry, Hamilton, I beg your pardon. Deputy President Hamilton. If I said something else I meant to say Hamilton.

PN71

THE SENIOR DEPUTY PRESIDENT: No, I am not aware of it.

PN72

MR BURCHARDT: Well, that was essentially to the effect, your Honour, that case involved various applications to intervene ..... in some way that sought to circumvent section 43 and his Honour came to the conclusion that that wasn't a part that was open to the Commission to entertain.

PN73

THE SENIOR DEPUTY PRESIDENT: Well, what is really being sought here it appears to be is an adjournment, Mr Burchardt.

PN74

MR BURCHARDT: Yes, I appreciate that, your Honour, and I am opposing it on the basis that I could, namely, that the sworn material that is in effect before the Commission, I mean as soon as we get into the substantive aspect it will be obviously put to your Honour, is to the effect that all the six employees covered by these agreements have already exercised the election which would, if granted favourably as it were to the unions, would ground their application. But when there is no possible basis on a factual, as things actually stand for that to be the case, then there is no point in the adjournment.

PN75

I should say, your Honour, three of the six people are in the Commission as I speak and I am in the position to call evidence in this if need be.

PN76

THE SENIOR DEPUTY PRESIDENT: What do you say to that, Ms Gooley?

PN77

MS GOOLEY: Your Honour, we believe it is appropriate that an adjournment be granted in this matter. We have not had an opportunity to review the material that has been filed. We have not had an opportunity to consult with our members because, as I say, as late as last week this company was in the process of negotiation an LJ agreement with the unions. We therefore submit that it is appropriate that an adjournment be granted to enable the parties to consider their respective positions.

PN78

MR BURCHARDT: I should just to round things out, your Honour, make it plain that the assertions as to the state of negotiations and the like are in issue. The real issue though is whether an adjournment should be granted to allow what is foreshadowed to be an application to intervene in circumstances where the factual basis that would sustain it simply isn't open. There is no obligation on the company to ensure that the union ..... saw these agreements if they come to an agreement under LK.

PN79

THE SENIOR DEPUTY PRESIDENT: I appreciate all that, Mr Burchardt, but in my view it would be appropriate to adjourn this matter to enable it to be properly dealt with in the light of what has been put. In my view Ms Gooley is entitled to obtain further instructions and her organisations are entitled to further consider their position in the light of the material which you purport at this stage to - or you have indicated that you would seek to tender and rely upon.

PN80

MR BURCHARDT: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: Do I take it - is there any particular urgency or extraordinary urgency in having this matter dealt with?

PN82

MR BURCHARDT: Well, my client is obviously keen to ensure that the agreement it has entered into with its employees is registered so they have a proper instrument to deal with the matter.

PN83

THE SENIOR DEPUTY PRESIDENT: But there is no difficulty in them carrying out their work is what I am getting to at this stage?

PN84

MR BURCHARDT: I am not in a position to give you an absolute answer but I don't understand that to be so, your Honour. We would be anxious to have the matter back as soon as possible.

PN85

THE SENIOR DEPUTY PRESIDENT: I appreciate that. What I propose to do is to adjourn the matter until 2.15 on 25 June and if in the meantime there is some outbreak of consensus which doesn't require that to become a full blown hearing then I would be advised accordingly.

PN86

MR BURCHARDT: Yes. Might it also be possible that the matter be - if it goes the other way and that the urgency of the matter becomes more, as it were, pressing that we could re-list it on notice?

PN87

THE SENIOR DEPUTY PRESIDENT: If that is the case then what you will have to do, Mr Burchardt, is approach my chambers in my absence and they will raise the matter with the head of the panel and see if the matter can't be re-allocated.

PN88

MR BURCHARDT: Could I take the opportunity to do one productive thing today in any event, your Honour, which is just to inquire, if I may, what documents have actually found their way onto the Commission's file at this stage because what ought to be there and what may be there may not be quite co-extensive?

PN89

THE SENIOR DEPUTY PRESIDENT: Well, at this stage on the file I have on the bench with me I don't have any additional material other than that which was filed originally in support of the application. So if you have further statutory declarations you would be seeking to tender then it probably would be advisable to provide Ms Gooley with a copy of those at some stage prior to any hearing.

PN90

MR BURCHARDT: Well, they would go on the public record in any event so there is no purpose to be gained trying to keep them to ourselves.

PN91

THE SENIOR DEPUTY PRESIDENT: In due course they will.

PN92

MR BURCHARDT: But could I just inquire, your Honour, I noted that the matters were listed as one application for designation of a certified agreement and one for an application for certification of an agreement. There should be two agreements, namely, the Maintenance Resource Engineering Pty Ltd Shell Geelong Refinery Mechanical Enterprise Agreement 2002-2005 and there should be a very similar document entitled Maintenance Resource Engineering Pty Ltd Shell Geelong Refinery Electrical Enterprise Agreement 2002-2005.

PN93

THE SENIOR DEPUTY PRESIDENT: There are two separate matters, two separate applications and indeed two separate XF applications, one of which didn't appear in the listing on the board but one which I understand was contained in the actual notification.

PN94

MR BURCHARDT: Good, I just wanted to make sure. That is fine. I just wanted to make sure that was correct, your Honour. Yes, well, what we will need to file obviously is the statutory declarations and we will tend to that.

PN95

THE SENIOR DEPUTY PRESIDENT: And serve them on Ms Gooley.

PN96

MR BURCHARDT: If your Honour pleases.

PN97

THE SENIOR DEPUTY PRESIDENT: So all matters in this respect will be adjourned until 2.15 on the Tuesday I think it is, 25 June.

PN98

MR BURCHARDT: If your Honour pleases.

AG2002/2565

Application under section 170LJ of the Act
for certification of the Blue Circle Southern
Cement Limited Waurn Ponds Agreement 2002

PN99

MR DALTON: I am from the Australian Industry Group representing the company in this matter.

PN100

MS Z. ANGUS: I appear on behalf of the Australian Workers Union.

PN101

MR DALTON: Sorry for the delay, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: No, that is all right, Mr Dalton.

PN103

MR DALTON: I didn't realise that that was the case before. I thought that all those people there that it wasn't us.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR DALTON: Thank you, your Honour. This is an application made under division 2 of part VIB of the Act for certification of an agreement made in accordance with section 170LJ. Your Honour, there are a number of issues I would like to seek to put submissions today in support of this proposed agreement being granted certification by the Commission. The first being that I would make the request that you exercise your powers under section 111(1)(p) of the Act with regard to the application before you.

PN106

The application for certification of this agreement names organisations of employees who were offered an opportunity to be party to this agreement but have declined. Therefore we would seek to offer up an amended application document that names only those parties that have agreed to be party to this agreement, namely, the company Blue Circle Cement Limited and the Australian Workers Union. I recognise that there is also - - -

PN107

THE SENIOR DEPUTY PRESIDENT: I should mark this, Mr Dalton.

EXHIBIT #D1 AMENDED APPLICATION

PN108

MR DALTON: Thank you, your Honour. I recognise that there is also a defect in the parties bound clause in the document and it is my intention to address this matter just slightly later in my submission. The terms of the agreement were reached between the company and the Australian Workers Union on behalf of employees covered by the AWU Blue Circle Southern Cement Waurn Ponds Award 1999, Metal Engineering and Associated Industries Award 1988 - sorry, 1998 I believe that should be. It is a typographical error on my part, your Honour. The Drafting Production Planners and Technical Workers Award 1998, the Clerical Administrative Employees Victoria Award 1995.

PN109

The next issue in the agreement is that the agreement document was lodged with the Commission outside the 21 day time limit prescribed within the Act. We would seek that the Commission exercise its discretion under section 111(1)(r) of the Act to extend the 21 day time limit prescribed in section 170LN(2). The Commission will have noted that while the agreement was approved by the employees on 9 April 2002 it was not filed until 7 May 2002, a delay of seven days.

PN110

The explanation for this delay is that the company was getting unions other than the AWU an opportunity to be party to the agreement and were waiting on confirmation one way or the other as to whether or not they would sign the agreement. There was also some administrative delays in preparation of the documents. Instructions from the company are that the composition of the workforce during the delay period has not changed, given that the seven days is only relatively short delay.

PN111

It is our submission that this delay does not detrimentally effect the nature of the valid majority support for the agreement. The next issue I wish to address is the accuracy of the document regarding clause 4, parties bound. Just a little bit of history, your Honour. The company has had six enterprise agreements so far and the company together with the employees have established a local practice for working through the process of coming to an agreement. That centres on negotiation directly with the local consultative committee.

PN112

The consultative committee membership is made up of management representatives and employee representatives. The employee representatives are elected from each of the different employee union groupings on the site. There is usually little involvement of off site union officials until the agreement is near completion. This practice was again utilised for the negotiation of this proposed agreement. The AWU is the union with the most coverage and members on site, however the consultative committee has employee representatives covering all of the union groupings.

PN113

Unfortunately during the negotiations the ASU representative was not available due to illness. Attempts were made to contact the ASU, however the ASU did not respond and did not seem interested in participation. It is relevant to bring in some more local history at this point for all the agreements prior to the agreement certified in January 2000, being C number 14278 of 2000 which is the current agreement, which for convenience purposes I shall call the 2000 agreement, all the unions on site were signatories and parties to those agreements.

PN114

The AMWU was involved in the negotiation process for the 2000 agreement but in the end decided not to agree and refused to be party to the agreement. All the other unions did become party to this agreement. Now, during the period since certification of the 2000 agreement there has been some on site friction between the company and some of the unions over a claim for a shut down agreement for contractors working on the site. Now, this is still not finalised and as far as some of the unions are concerned, however this issue does not directly impact on the company's regular workforce and was not seen by the employees, we submit, to be an issue that should detrimentally effect the negotiations for a new agreement on site.

PN115

Now, regarding negotiations for a new agreement the company and the employee representatives met and developed it using the agreement established process. Now, given the circumstances this was a very important agreement for the company and its employees. Blue Circle Cement is the last remaining cement manufacturing plant left in Victoria and this is a very competitive business. Imports have put huge pressure on the market. To secure its long term future investment is needed.

PN116

The parent company is looking to make a commitment to significant investment in the plant, investment of up to 16 million dollars in the first stage and a total investment in excess of 50 million dollars over the five year period of the project. This investment was vital to the long term future of the plant as it would increase the plant's productive capacity as well as security and number of jobs on site. To assist in this investment strategy the company was looking for a stable work environment and was seeking to establish a new three year agreement with its employees to facilitate this.

PN117

The AMWU has not been party to the last agreement - sorry, as the AMWU was not party to the last agreement there was some significant scepticism amongst the consultative committee members that it would be party to the proposed new agreement. Now, during the stages of negotiation and especially in the final stages of the negotiation it became clear that organisations of the AMWU and the CEPU and the ASU were highly unlikely to be prepared to be parties to the new agreement.

PN118

The company was open to their participation and continued to keep them specified as parties to the document and invited them to meetings and also sent them correspondence. It was clear from the consultative committee that the employee representatives wanted the proposed agreement to be put to employees for consideration and to test its support. Because of the question mark about the participation of the AMWU and CEPU and ASU it was clearly explained to the committee and the employees when the draft agreement document was given to the employees for consideration that it was most unlikely that the AMWU, CEPU and ASU would be prepared to be parties to the new agreement.

PN119

At the end of the 14 day consideration period, which was Tuesday, 9 April 2002, at 8 am, a mass meeting was held for all employees to express their views on the approval or non approval of the agreement. The meeting was attended by 45 employees covered by the agreement. These employees were members of the various unions. Of that group 23 were members of the AWU, 11 were members of the AMWU, five were members of the CEPU and four were members of the ASU.

PN120

The result of the vote was the unanimous endorsement of the proposed agreement. It is our submission that the employees who were considering the draft agreement were fully informed and aware that it was highly unlikely that the AMWU, CEPU and ASU would become parties to the agreement and that the endorsement they gave on 9 April was an informed and genuine endorsement of the proposed agreement. In support of this submission the members of the consultative committee have prepared a signed statement and I have a copy of that statement that I can submit. That is the original, your Honour.

EXHIBIT #D2 SIGNED STATEMENT OF MEMBERS OF THE CONSULTATIVE COMMITTEE

PN121

MR DALTON: If you like I will just give you a minute to read that if you wish, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN123

MR DALTON: Thank you, your Honour. There are members of the consultative committee have signed that document who are also present here today who can give evidence on that matter if you believe that it is necessary. In view of this it is our submission, your Honour, that the references to the unions other than the AWU in the agreement document with regard to the parties bound and the application document are not an impediment to the certification of the agreement.

PN124

We submit that it is a technical error that may be satisfactorily amended by replacing the offending clauses with a new replacement page that have been adjusted to delete references to parties other than Blue Circle Cement and the AWU. I have a draft replacement page that I could submit for your perusal if you wish, your Honour.

EXHIBIT #D3 DRAFT REPLACEMENT PAGE DELETING REFERENCE TO PARTIES OTHER THAN BLUE CIRCLE CEMENT AND AWU

PN125

THE SENIOR DEPUTY PRESIDENT: You might need to amend the previous page because the previous page in 3 talks about the agreement applying to and being binding on the unions and the unions are defined later in the body of the document to include those other organisations.

PN126

MR DALTON: Yes, I see that, your Honour. That is something I missed and I am happy to give an undertaking that that will be amended and that replacement page there can be submitted to you within 48 hours.

PN127

THE SENIOR DEPUTY PRESIDENT: And the page which you have handed up - - -

PN128

MR DALTON: The page I hand up is - - -

PN129

THE SENIOR DEPUTY PRESIDENT: - - - specifies parties bound and includes the other organisations, doesn't it?

PN130

MR DALTON: No, in terms of that, your Honour, I will read it to you so that I can explain what I have done and why I have done it:

PN131

Blue Circle Southern Cement Waurn Ponds employees, whether members of the organisations of employees ...(reads)... in the parent awards -

PN132

and so (b) is the employees and it refers to (c) as being the organisations for which they may be a member. It doesn't actually bind those organisations.

PN133

THE SENIOR DEPUTY PRESIDENT: Maybe it is the result of being a solicitor for too long, Mr Dalton. But my concern, and I am referring to myself, not to Mr Dalton, my concern is you have got a heading Parties Bound, you have got four clauses and notwithstanding what I perceive you to intend by it, the mere fact that (c) is there in the form that it is there suggests that anyone in (c) is a party bound and it may be some further attention is needed to indicate that you are really only putting (c) in there to indicate what is meant by the organisations in (b).

PN134

MR DALTON: Yes, that was the purpose of it, your Honour.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that. It may be it should be employees whether members of the - - -

PN136

MR DALTON: Covered by the awards rather than - - -

PN137

THE SENIOR DEPUTY PRESIDENT: - - - organisations of employees, namely, and then list them and delete (c) altogether.

PN138

MR DALTON: So we could restructure. Yes, I am happy to do that.

PN139

THE SENIOR DEPUTY PRESIDENT: It may be that you will need to have a further look at that.

PN140

MR DALTON: Yes.

PN141

THE SENIOR DEPUTY PRESIDENT: But anyway, you go on for the moment.

PN142

MR DALTON: So in terms of that - the parties have also prepared statutory declarations providing the information required under the Act. We further submit that all the requirements of section 170LJ and section 170LT have been met, namely, the agreement we submit does not disadvantage the employees covered by it. The agreement does not seek to diminish any of the current terms and conditions that employees enjoy. The current pay structure built through the previous agreements provides payment to employees substantially of other award provisions.

PN143

The proposed agreement builds further on that. Clause 8 of the proposed agreement provides for a minimum wage increase of 3.5 per cent per annum with an additional .5 per cent being available based on performance and this is referred to in item 7.2 of the statutory declaration. A valid majority of employees we submit genuinely approved the agreement on 9 April 2002 and this is referred to in item 6.2 of the statutory declaration. Access to the agreement and an explanation of the terms of the agreement occurred in accordance with the requirements of section 170LR and was appropriate having regard to the particular circumstances of the employees covered by the agreement and I would refer to item 6.6, 6.7 and 6.8 of the statutory declaration.

PN144

The agreement does contain a dispute settlement procedure at clause 10. The period of operation of the agreement is set out in clause 5 where it is stated that the agreement will expire on 30 June 2005. Apart from the need to re-jig those replacement pages, your Honour, and subject to the exercise of your discretion in the matters discussed in the submissions, we believe that everything else is in order and we would seek that the agreement be certified in the terms sought. If the Commission pleases.

PN145

THE SENIOR DEPUTY PRESIDENT: As far as the company is concerned, because you have that definition in clause 14 of unions.

PN146

MR DALTON: Yes.

PN147

THE SENIOR DEPUTY PRESIDENT: There is reference throughout the agreement to union delegate in the dispute settlement clause for example, or if you go to clause 6(d):

PN148

An official or officer of the union shall have the right to enter.

PN149

Is it the intention - and as I apprehend it the intention is that this will be an agreement, the parties to which are the company, the employees and the AWU?

PN150

MR DALTON: That is correct, your Honour.

PN151

THE SENIOR DEPUTY PRESIDENT: Is it the intention that an officer of a union other than the AWU shall have the right to enter?

PN152

MR DALTON: It is, your Honour.

PN153

THE SENIOR DEPUTY PRESIDENT: It is. So the agreement means that the definition of unions will stay the same.

PN154

MR DALTON: Yes.

PN155

THE SENIOR DEPUTY PRESIDENT: But unions other than the AWU will not be named either as parties or as being bound by the agreement?

PN156

MR DALTON: That is correct, your Honour.

PN157

THE SENIOR DEPUTY PRESIDENT: And in the light of exhibit D2 that appears to be the intention of the consultative committee that negotiated the agreement.

PN158

MR DALTON: Yes, and that the employees gave the full and informed consent on the basis that those unions would not be party - or highly unlikely to be parties given the behaviour of the AMWU in the prior agreement and the other issues that have been happening on site. If the Commission pleases.

PN159

THE SENIOR DEPUTY PRESIDENT: Ms Angus.

PN160

MS ANGUS: Your Honour, the AWU makes no submissions in relation to the accuracy of the historical account provided by Mr Dalton but it is our view that the agreement should be certified.

PN161

THE SENIOR DEPUTY PRESIDENT: And should be certified in an amended form as indicated?

PN162

MS ANGUS: In its amended form to not bind those organisations that do not wish to be bound but provide them the sort of access that their membership would - continue the sort of access that their membership currently enjoy.

PN163

THE SENIOR DEPUTY PRESIDENT: Well, in relation to this matter I first of all will allow an amendment to the application in the form proposed in exhibit D1. I will also extend the time for the lodging of the application and supporting documentation to the date upon which that documentation was lodged, being 7 May 2002. I am satisfied from the material before me that the approval that was given by the employees to this agreement was an approval that should organisations other than the AWU not wish to sign the agreement then the agreement was to be in a form which made the AWU the sole organisation a party to the agreement - sole organisation of employees that is party to the agreement and the sole organisation of employees bound by the agreement.

PN164

To give effect to that however it appears that the document lodged as the agreement for certification does need amendment and although the circumstances are somewhat unusual I am prepared to allow an amendment. It appears to me however the amendment needs to go beyond what has been proposed in exhibit D3. I think attention needs to be given to clause 3 to make it clear that the agreement is binding only on the AWU insofar as unions are concerned and that probably can be achieved by amending clause 3(c) to delete the - I am sorry, Ms Angus, is there a concern?

PN165

MR DALTON: 4(c).

PN166

THE SENIOR DEPUTY PRESIDENT: No, if you look at clause 3(c) this is an additional problem that I indicated before. Clause 3(c) says:

PN167

The agreement shall apply to and be binding upon the unions.

PN168

That probably needs to be changed to the AWU. Clause 4, as proposed in exhibit D3, in my view doesn't really achieve what it seeks to achieve and probably should read, (a), Blue Circle Southern Cement Waurn Ponds, (b), Employees, whether members of the - and then set out in full AWU, AMWU, CEPU or ASU or not:

PN169

...engaged in any of the occupations, industries or callings specified in parent awards.

PN170

Then (c) would just read the Australian Workers Unions.

PN171

MR DALTON: I am happy to give an undertaking that be provided in 48 hours, your Honour.

PN172

THE SENIOR DEPUTY PRESIDENT: Well, if you could provide us with an amended form of both clause 3 and clause 4, Mr Dalton, and provide that to the AWU, then on the basis of the materials currently before me I will be prepared to certify the agreement. Unfortunately a certification will not issue until I return from leave but that will be before the first pay period to commence on or after 1 July so that we will certify it before that date, subject to me being satisfied with the form that you file and it will operate then until 30 June 2005. Is there anything else for the record? If not the matter is adjourned on that basis and the Commission itself is adjourned.

ADJOURNED INDEFINITELY [12noon]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 AMENDED APPLICATION PN108
EXHIBIT #D2 SIGNED STATEMENT OF MEMBERS OF THE CONSULTATIVE COMMITTEE PN121
EXHIBIT #D3 DRAFT REPLACEMENT PAGE DELETING REFERENCE TO PARTIES OTHER THAN BLUE CIRCLE CEMENT AND AWU PN125