AG2002/3813, Transcript of Proceedings [2002] AIRCTrans 3490 (11 September 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 VT05460
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

AG2002/3813, 3647, 3758,
2965, 3052, 3922, 3958,
3959, 3960, 3961, 3962,
4009

APPLICATIONS FOR CERTIFICATION
OF AGREEMENTS

ENVIROPLUMB VICTORIA PTY LTD CEPU
ENTERPRISE AGREEMENT 1999-2002

NATIONAL GALLERY OF VICTORIA PROJECT
AGREEMENT - D & G AIRCONDITIONING PTY LTD

NATIONAL GALLERY OF VICTORIA SITE
AGREEMENT: ELECROFT (AUST) PTY LTD

GRAEME L & CHRIS HERBERT ENTERPRISE
BARGAINING AGREEMENT 2000-2003

COMCELL SWITCHBOARDS PTY LTD SWITCHBOARD
ENTERPRISE AGREEMENT 2002-2003

RG LADD PTY LTD SWITCHBOARD ENTERPRISE
AGREEMENT 2000-2003

FORMWAY METERING SERVICES PTY LTD
ENTERPRISE AGREEMENT, 2002-2003

EASY ABC PTY LTD POWERLINE ENTERPRISE
AGREEMENT 2002-2004

MULTIPIPE PTY LTD POWERLINE ENTERPRISE
AGREEMENT 2002-2004

POWER CABLES PTY LTD - POWERLINE
ENTERPRISE AGREEMENT 2002-2004

INTEGRATED CONTROL SERVICES ENTERPRISE
AGREEMENT 2002-2003

TREADWELL ELECTRICS PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2000-2003

Applications under sections 170LL and
170LJ of the Act for certification
of agreements

MELBOURNE

1.40 PM, FRIDAY, 23 AUGUST 2002

PN1

THE COMMISSIONER: Yes, Mr Maddison, you are appearing for the CEPU, ETU - - -

PN2

MR J. MADDISON: Yes, in all those matters you just called, Commissioner.

PN3

THE COMMISSIONER: In all of those matters. And, Mr Cooney, you are appearing - - -

PN4

MR J. COONEY: Matters 3813 and 3647.

PN5

THE COMMISSIONER: Yes. And I am going to deal with those two matters first and then I am going to deal with matter 2002/3758. Who is involved in that one?

PN6

MR F. KENNEDY: 3758, I am appearing for Elecroft.

PN7

THE COMMISSIONER: Yes, thank you very much. And you are Mr Kennedy.

PN8

MR KENNEDY: Kennedy from MSUA.

PN9

THE COMMISSIONER: Yes, all right, fine, thank you. Then, Mr Cooney, why don't we deal with you and then allow you to go back and have some lunch.

PN10

MR COONEY: I have actually eaten, Commissioner.

PN11

THE COMMISSIONER: You are lucky.

PN12

MR COONEY: Your Honour, these - well, I will deal with them individually - - -

PN13

THE COMMISSIONER: Yes, thank you.

PN14

MR COONEY: - - - because one is a Greenfields agreement and the other is a - - -

PN15

THE COMMISSIONER: Yes, yes, I want them all dealt with individually so - - -

AG2002/3647

PLUMBING TRADES (SOUTHERN STATES)
CONSTRUCTION AWARD, 1999

Application by D & G Airconditioning
Pty Ltd and Another

PN16

MR COONEY: Excellent. The - well, the 3647 is an application made by D & G Airconditioning Pty Ltd. It is an agreement with the CEPU. It is a Greenfields agreement concerning the National Gallery of Victoria site. All the appropriate sections of the Act have been fulfilled and as such we would ask that the agreement be certified. I should just add that the agreement does cover people being - performing tasks under the Southern States Award.

PN17

THE COMMISSIONER: Yes. And the Plumbing Trades (Southern States) Construction Award 1999 applies. There are no employees at the moment, is that right, Mr Cooney?

PN18

MR COONEY: Correct, Commissioner.

PN19

THE COMMISSIONER: Well, a single business is a new business that the employer is proposing to establish, is that right?

PN20

MR COONEY: Yes, your Honour.

PN21

THE COMMISSIONER: It is all right, Mr Maddison, I don't care what I call it so long as it is polite. The agreement is being made before the employment of any of the persons who will be necessary for the normal operation of the business?

PN22

MR COONEY: Correct, Commissioner.

PN23

THE COMMISSIONER: Yes. And the CEPU will be entitled to represent the industrial interests of one or more of the persons whose employment is likely to be subject to the agreement?

PN24

MR COONEY: Yes, Commissioner.

PN25

THE COMMISSIONER: Yes, thank you very much. Then I am satisfied, on the basis of the all the material before me, that the requisite provisions of the Act have been complied with and I do certify this agreement today, 23 August 2002, and its terms will be from today until 1 January 2004. Good, thank you, Mr Cooney.

PN26

MR COONEY: Thank you, Commissioner.

AG2002/3813

PLUMBING TRADES (SOUTHERN STATES)
CONSTRUCTION AWARD, 1999

Application by Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia-Plumbing
Division Victorian Divisional Branch and Another

PN27

MR COONEY: This is an application, it is AG2002/3813, it is an application made by the CEPU for the certification of the Enviroplumb Victoria Pty Ltd Agreement. This fills all the requirements of the Act. The company is a constitutional corporation. It was approved by a valid majority of employees on 16 July. It was signed by the parties on 18 July and it was put before the Commission on 19 July so it is certainly within the 21 day time period.

PN28

THE COMMISSIONER: Yes.

PN29

MR COONEY: Which is a record for us.

PN30

THE COMMISSIONER: Well, I do note, Mr Cooney, a marked improvement in regard to these things and that is really great and much appreciated.

PN31

MR COONEY: Thank you, Commissioner. The agreement covers two employees, it covers the no disadvantage test and as such we would ask that the agreement be certified.

PN32

THE COMMISSIONER: Yes. Can I just run you some questions, Mr Cooney? Does the union have at least one member employed by the business?

PN33

MR COONEY: Yes, Commissioner.

PN34

THE COMMISSIONER: And is the union entitled the represent the industrial interests of that member?

PN35

MR COONEY: Yes, Commissioner.

PN36

THE COMMISSIONER: And the agreement, you told me, was approved by a valid majority of the employees. I take it was unanimous, was it, that vote?

PN37

MR COONEY: I believe so, Commissioner.

PN38

THE COMMISSIONER: Yes, thank you. And the company took reasonable steps to ensure that at least 14 days before approval was given, employees had access to the written copy of the agreement?

PN39

MR COONEY: Yes, Commissioner.

PN40

THE COMMISSIONER: And that before approval was given, its terms were explained?

PN41

MR COONEY: Yes, Commissioner, meetings were convened by the union at which the document was explained in detail and the questions were answered.

PN42

THE COMMISSIONER: Yes, good, thank you very much. In regard to the matter of the Enviroplumb Victoria Pty Ltd and CEPU Enterprise Agreement 1999-2002, I am satisfied that all the requisite statutory provisions have been complied with, particularly those in section 170LJ. I note that in regard to the no disadvantage test in section 170XA, that clause 2.13 with regard to the training leave clause, 3.1 with regard to wages and allowances, clause 3.2 with regard to the plumbing trade and industry payment and clause 3.4 with regard to site allowances and clause 3.6 with regard to insurances, all appears to represent an advantage rather than a disadvantage over the award.

PN43

There is an appropriate dispute resolution procedure at appendix D which refers to the VDIDB and to the Commission. The term of the agreement doesn't exceed three years, in fact it is stated at clause 1.4 to be from the date of certification to 30 September 2002 so I presume that you are already working on the next one, Mr Cooney. The agreement doesn't end a bargaining period and I am satisfied that I should certify and I do certify this agreement today, 23 August 2002. Thank you.

AG2002/3758

NATIONAL ELECTRICAL, ELECTRONIC AND
COMMUNICATIONS CONTRACTING INDUSTRY
AWARD 1998

Application by Elecroft (Aust) Pty Ltd
and Another

PN44

THE COMMISSIONER: The next matter is another Greenfields agreement with regard to the National Gallery and Mr Kennedy, you are addressing me on this one, is that right?

PN45

MR KENNEDY: I think Mr Cooney was. Yes, that is true, Commissioner, I am doing that. I would like - - -

PN46

THE COMMISSIONER: Would you like to run me through it?

PN47

MR KENNEDY: Yes, surely. The agreement has been made in accordance with due process. The employees have been consulted for the required period. A valid majority has approved it. There is a disputes settling clause in the agreement. There is an expiry date within three years and all of the necessary processes under the Act, in our submission, have been dealt with and met and therefore we would recommend that the Commission approve it.

PN48

THE COMMISSIONER: Yes, thank you. I must say I hate these National Gallery of Victoria agreements. They are my least favourite agreements. They always look as though they have been dished up at somebody's breakfast table, I am sorry to say, but anyway can I just ask you some questions, Mr Kennedy? Is the business a new business that the employer proposes to establish, that is the business covered by this agreement?

PN49

MR KENNEDY: Yes.

PN50

THE COMMISSIONER: And the agreement has been made before the employment of any of the persons who will be necessary for the normal operation of the business?

PN51

MR KENNEDY: Yes, Commissioner.

PN52

THE COMMISSIONER: And is the CEPU entitled to represent the industrial interests of one or more of the persons whose employment is likely to be subject to the agreement?

PN53

MR KENNEDY: Yes, it is.

PN54

THE COMMISSIONER: Fine, thank you. Well, I have heard the submissions from Mr Kennedy, I take it Mr Maddison, by Mr Cooney's departure, that he has no objection to the certification of the agreement?

PN55

MR MADDISON: I think, actually, Commissioner, it is one within the jurisdiction of the Electrical Division so it is probably more properly - - -

PN56

THE COMMISSIONER: Oh, it is one of yours, is it?

PN57

MR MADDISON: One of mine that - - -

PN58

THE COMMISSIONER: That must be why it is in a separate pile.

PN59

MR MADDISON: Yes. But we adopt the submissions put by Mr Kennedy and also seek that the agreement be certified.

PN60

THE COMMISSIONER: Yes, all right. Well, I am satisfied, on the basis of the material before me and the submissions here today, that in regard to the National Gallery of Victoria site agreement, Elecroft (Aust) Pty Ltd that it meets all the relevant statutory requirements and I do certify this agreement today, 23 August 2002, its term under clause 2 is from the date of certification to 1 January 2004. Thank you, Mr Kennedy and Mr Maddison.

AG2002/2965, 3052,

NATIONAL ELECTRICAL, ELECTRONIC AND
COMMUNICATIONS CONTRACTING INDUSTRY
AWARD 1998

Applications by Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia and Another

PN61

THE COMMISSIONER: We are now moving onto a series of matters, two of them, agreements 2002/2965 and 3752 have already been before me and Mr Maddison has both at the previous hearing and subsequently made major submissions with regard to the issue of - the bargaining agent's fee clause and I have reserved my decision in regard to that matter. I was allowing the companies to come along today and make any representations that they wished to about it. Can I just ask, are there any representatives from either of the companies involved, Graeme L and Chris Herbert or Comcell Switchboards Pty Ltd here? No.

PN62

MR MADDISON: Commissioner, if I may indicate - - -

PN63

THE COMMISSIONER: Yes.

PN64

MR MADDISON: I did have Mr Gunter Mayer who I understand is perhaps the manager or the director of Comcell Switchboards did give me - called me yesterday just to inquire as to the status of his agreement and why he had been - received a further listing and I did indicate to him where the matter lay and that he was asked to attend and I said if he wasn't going to attend that at least he should perhaps consider sending some sort of correspondence to yourself, Commissioner, just indicating his position on his ability to attend and also whether or not he wanted the agreement certified but I take that no such correspondence has been forwarded.

PN65

THE COMMISSIONER: No, that is right. And so I thought that what I would do today is deal with the section 170XF issue on this and in all of these matters so at least we can actually get that issue out of the way, if you like.

PN66

MR MADDISON: Yes. Commissioner, just in terms of preliminary matters or programming of these two plus the other ones, what I foreshadows and was going to seek to do was to join the two that are part heard with another ones.

PN67

THE COMMISSIONER: Yes.

PN68

MR MADDISON: And I do have some oral submissions to support the written submissions and I will also provide written submissions in the same terms as already provided for the other ones.

PN69

THE COMMISSIONER: That will be great, thank you very much. Yes, this is, as you know, Mr Maddison, because you are involved in proceedings before Deputy President Hamilton which there have been a lot of submissions made, I am intending to reserve my decision until I have seen the decision that Deputy President Hamilton issues in regard to that - the other matter that you are involved in with him.

PN70

MR MADDISON: Yes.

PN71

THE COMMISSIONER: So I am grateful to you for your submissions but I am not wanting to delay at least this issue of section 170XF.

PN72

MR MADDISON: Yes. Dealing with the section 170XF application and determination of designated award, we say for the purpose of the award, that the appropriate award is the National Electrical, Electronic and Communications Contracting Industry Award 1998 and we say that this the appropriate award to determine whether or not the agreements the no disadvantage test on the basis the kind of work that the companies perform and that kind of work is consistent with clause 6 of the - what is known in short as the National Electrical Contracting Industry Award, clause 6 deals with where and who the award covers and clause 6.1 of the award reads:

PN73

The award shall apply to the provision of electrical services by electrical, electronics and communication contractors.

PN74

We say the employers perform work that is defined in clause 6.2.2 of the award and for those reasons we say that that is appropriate award and the employees who will covered by the agreements, when and if they are certified, are either members or eligible members of the CEPU, consistent with clause 6.4 of the award and we would say that once that award is designated as the appropriate award that once the agreements are compared to that award and taking a global view or even looking at it clause by clause, we say that the agreement - there is nothing in the agreement which would make them fail the no disadvantage and we would say that they certainly do pass the test and pass it with flying colours.

PN75

THE COMMISSIONER: Good. Thank you very much, Mr Maddison. Yes, on the basis of the written submissions and the oral submissions that you have just made, I am satisfied, pursuant to the provisions of section 170XF that I should determine and I do determine that the relevant award in regard to this matter is the National Electrical, Electronic and Communications Contracting Industry Award 1998. Thank you.

PN76

MR MADDISON: Thank you, Commissioner.

PN77

THE COMMISSIONER: We will now move onto 2002/3052 with regard to Comcell Switchboards Pty Ltd and just run through the same exercise, thank you.

PN78

MR MADDISON: Can I simply rely upon the submissions just made in the matter AG2002/2965 and adopt those submissions in respect to both the determination of the designated award and the no disadvantage test.

PN79

THE COMMISSIONER: Yes. Then, on the basis of the submissions that you have made, I am satisfied, pursuant to the provisions of section 170XF that I should determine and I do determine that the relevant award is the National Electrical, Electronic and Communications Contracting Industry Award 1998.

AG2002/3922

NATIONAL ELECTRIC, ELECTRONIC AND
COMMUNICATIONS CONTRACTING INDUSTRY
AWARD 1998

Application by Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia and Another

PN80

THE COMMISSIONER: Right. We are now moving onto agreement 2002/3922, this is the matter of R G Ladd Pty Ltd, is there anybody here from R G Ladd?

PN81

MR VAN WYK: Yes.

PN82

THE COMMISSIONER: Right, if I could hear from you first, Mr Maddison, are you presenting first on this and then I will come to Mr Van Wyk.

PN83

MR MADDISON: Yes, I am happy to go first, Commissioner. Commissioner, in respect of the 170XF application, again I seek to rely upon submissions put to you just recently in AG2002/2965 where we say that the National Electrical, Electronic and Communications Contracting Industry Award 1998 is the appropriate award to be designated for the purposes of the no disadvantage test.

PN84

THE COMMISSIONER: Yes.

PN85

MR MADDISON: For the reasons in those submissions, we say that that is the appropriate award and also it is that the agreements do pass the no disadvantage test. If the Commission pleases.

PN86

THE COMMISSIONER: Yes. Mr Maddison, this agreement has been lodged two days out of time. Would you like to seek the exercise of the Commission's discretion for - - -

PN87

MR MADDISON: Yes. In those circumstances, Commissioner, we do make application pursuant to section 111(1)(r) of the Act. Commissioner, like Mr Cooney before you, we have been certainly very conscious of those prescribed time limitations and even more so since criticisms have been made in other Commissions and we say that the matter is only out of time, as you mentioned, by a couple of days and on my instruction that is only due to administrative delays rather than any other reason and Mr Van Wyk can probably - is in the best place to tell you that composition of the workforce has not changed in the intervening time and certainly from our members' point of view and presumably from Mr Van Wyk's employees point of view that all parties still want - or those parties want the agreements to be certified.

PN88

In those submissions we ask you to exercise your discretion and extend the prescribed time limitation. If the Commission pleases.

PN89

THE COMMISSIONER: Yes. Mr Van Wyk, just in regard to those two matters, with regard to the section 170XF declaration of the award and determination of the award and in regard to the extension of time, have you got any submissions you would like to make to the Commission?

PN90

MR VAN WYK: I believe - I am quite happy to ask for an extension of time.

PN91

THE COMMISSIONER: Yes, thank you very much and you endorse the application with regard to section 170XF, the determination of the award.

PN92

MR VAN WYK: I certainly do, yes.

PN93

THE COMMISSIONER: Then to begin with I will deal with the extension of time. I am satisfied that this is a matter where it is appropriate for the Commission to exercise its discretion under section 111(1)(r) to extend the time for lodgment by two days through to 25 July 2002 and I do extend that time. In regard to section 170XF issue, I am satisfied, on the basis of the written submissions and the oral submissions, that I should determine and I do determine that the award that is appropriate for the purpose of deciding whether the agreement passes the no disadvantage test is the National Electrical, Electronic and Communications Contracting Industry Award 1998.

PN94

What I would like to do now, Mr Maddison and Mr Van Wyk, in regard to this matter, Mr Maddison is for you to run through the usual matters with me and then I can deal with all of those now and we will just come - we can then deal with and I will reserve my decision in this matter in respect of the bargaining agent's fee clause issues.

PN95

MR MADDISON: Yes.

PN96

THE COMMISSIONER: So if - but we will deal with all of the other matters here in these proceedings because I can't see that there are any other problems with the agreement.

PN97

MR MADDISON: And we would say, Commissioner, that even given the bargaining agent's fee, there is no problem but we hear what you are saying in respect of that matter generally.

PN98

THE COMMISSIONER: Indeed, yes. Well, I am simply reserving my decision on that.

PN99

MR MADDISON: Commissioner, we say that the statutory declaration which has been filed with the application and the agreement is evidence that all the requirements; relevant requirements of the Act have been complied with and given the extension time which has been granted, we say that the agreement - it is appropriate for the Commission to certify the agreements as all the requirements of section 170LK, LT have been complied with and there is no reason, pursuant to section 170LU which would mean that you should refuse to certify the agreements and on that basis, Commissioner, we seek that the agreement be certified and - - -

PN100

THE COMMISSIONER: Yes. Mr Maddison, does the union have at least one member employed by the business

PN101

MR MADDISON: We do.

PN102

THE COMMISSIONER: And is the union entitled to represent the industrial interests of that member?

PN103

MR MADDISON: We are, Commissioner.

PN104

THE COMMISSIONER: And there are seven employees in this matter. Was the agreement approved by a valid majority of employees, the vote was on 2 July 2002?

PN105

MR MADDISON: Yes.

PN106

THE COMMISSIONER: You don't know what the process of the voting would have been, Mr Maddison? Mr Van Wyk probably knows better than you. Was it a show of hands?

PN107

MR VAN WYK: I wasn't present at the meeting.

PN108

MR MADDISON: I understand that the employer essentially delegated his statutory requirements to the union and the union facilitated the vote of the agreement where the valid majority of employees did so approve the agreement.

PN109

THE COMMISSIONER: Yes, all right. Mr Van Wyk, did the company take reasonable steps to ensure that at least 14 days before approval was given, the employees had access to a written copy of the agreement?

PN110

MR VAN WYK: Yes, we did.

PN111

THE COMMISSIONER: And that before approval was given, its terms were explained to the employees?

PN112

MR VAN WYK: Fully.

PN113

THE COMMISSIONER: Yes, thank you. Good. On the basis of the written submissions and the oral submissions before me, I am satisfied that all aspects but one of this agreement would entitle it to certification. I note that the provisions of section 170LJ have been complied with. I note with regard to the no disadvantage test that clause 8 with regard to training, clause 9 with regard to measures to achieve efficiency, clause 19 with regard to income protection, clause 20 with regard to superannuation, clause 24 with regard to living away from home allowance, clause 25 with regard to fares and allowances and clause 28 with regard to wages all appear to represent an advantage over the award.

PN114

There is an appropriate dispute resolution procedure at clause 13, 13.3 contains that capacity to be referred to this Commission. The term of the agreement doesn't exceed three years. At clause 5 it says to be from the date of signing which I took to be the date on which Mr Mile has signed it, that being the last signature which is 22 July to 1 January 2003 and the only concern that I have with regard to this agreement was with regard to a provision in the agreement at clause 14.3 of a requirement with regard to bargaining agent's fees and this is a matter which has been the subject of some discussion and I consider it appropriate that I should reserve my decision and receive submissions from Mr Maddison with regard to this issue and to await the decision of Deputy President Hamilton in another matter where a similar clause is involved before I make a determination with regard to the matter so would you like to make some submissions to me in that regard so that what I am identifying is that the only issue I have with this is the status of clause 14.3 and the impact that may have on the agreement as a whole and its certification.

PN115

MR MADDISON: Yes. Commissioner, then it may be appropriate to hand up - I did provide, on 12 July, submissions in respect of the - - -

PN116

THE COMMISSIONER: You did. They were very full submissions.

PN117

MR MADDISON: Yes.

PN118

THE COMMISSIONER: They were very useful submissions, I must say.

PN119

MR MADDISON: I did, on 12 July, provide those submissions in respect of the Comcell Switchboards and the Graeme and Chris Herbert EBA.

PN120

THE COMMISSIONER: Yes.

PN121

MR MADDISON: These submissions I have provided go to the same matters and are in the same term but just to have it properly before you in respect of - not under R G Ladd agreement but the other ones that I apprehend will be called on today and I did indicate and perhaps it is the appropriate junction to make those further brief oral submissions in support.

PN122

THE COMMISSIONER: Yes.

PN123

MR MADDISON: Commissioner, what we say essentially is - - -

PN124

THE COMMISSIONER: I might just say, with regard to the transcript of this matter, I think that I will actually make the transcript of all of these bargaining agent's fees matters one transcript. I think that is the most sensible thing, don't you?

PN125

MR MADDISON: Yes.

PN126

THE COMMISSIONER: And that will just save us having separate transcripts and you repeating submissions again and again and again.

PN127

MR MADDISON: Yes.

PN128

THE COMMISSIONER: Good, thank you very much.

PN129

MR MADDISON: Commissioner, we say that this matter, that is the certification of the agreement, these certifications are before you, these are matters that you should determine for yourself and we say that given the findings or the obiter in Electrolux 2, the Full Court of the Federal Court, we say that that is the proper state of the law and we say that you are not bound by the Full Bench decision in Atlas and that the Full Court in Electrolux has sufficiently thrown into doubt the status of Atlas and we say it is worth just taking, Commissioner, taking you to just briefly to Electrolux 2 and provide the Commissioner with a copy of that.

PN130

I think in my submissions I just simply refer to it as Electrolux but perhaps it is more appropriate to refer to it as Electrolux 2.

PN131

THE COMMISSIONER: Yes.

PN132

MR MADDISON: If, Commissioner, if you can have regard to page 17 of 24 of the Internet copy that I have provided you with.

PN133

THE COMMISSIONER: Yes, that is at paragraph 40?

PN134

MR MADDISON: I was going to take you to paragraph 68.

PN135

THE COMMISSIONER: All right.

PN136

MR MADDISON: Where it is obvious from the decision that the Full Court did have the benefit of Atlas Steel.

PN137

THE COMMISSIONER: Yes.

PN138

MR MADDISON: And in paragraph 68 they refer to the Full Bench decision in Atlas Steel and they go to paragraph 70 which is specifically to the LI question, the question as to whether or not an agreement that had been described as about matters pertaining to the employment relationship, whether or not each and every clause has to so pertain or whether read as a whole the agreement should so pertain to an employment relationship and in paragraph 71 they go to what the Full Bench found in Atlas Steel where they found that each and every clause must pertain to the employment relationship and they essentially agree with the findings of Merkel J in Electrolux 2.

PN139

Now, the way that Electrolux 2 was decided, those findings or the construction of LI wasn't required for the determination of Electrolux 2, notwithstanding that the Full Court did make certain findings in paragraph 98 through to 101 which is found on page 22.

PN140

THE COMMISSIONER: Yes.

PN141

MR MADDISON: Now, we say that essentially the Full Court, although it wasn't necessary for the determination of that matter, if not - if it hasn't overturned Atlas Steel, it has certainly thrown it into sufficient doubt to say that that question is now open and we would submit that the very strong obiter in Electrolux 2 is the current state of the law, that is, you take a global view and read the agreement as a whole rather than looking at each and every clause. Now, we would say that when the agreement is read as a whole, it is certainly about matters pertaining to the employment relationship and we would say that that is certainly beyond argument as it deals with wages, annual leave, superannuation, etcetera.

PN142

I think a brief glance at the agreement would lead the Commission to forming that view. Now, the decision, the recent decision of Deputy President Ives which comes after both Atlas Steel and Electrolux 2, where the Deputy President found that he was bound by the Full Bench decision of Atlas Steel rather than following the obiter in Electrolux 2, now, we would say, with the greatest respect to Deputy President Ives, that he is wrong and we would say that where he has fallen into error is that, in my submission, reading - a careful reading of the decision would lead one to form a view that the Deputy President was unaware that Atlas Steel was subject to close

PN143

scrutiny by the Full Court in Electrolux.

[2.14pm]

PN144

And we make those submissions, Commissioner, and refer you firstly to paragraph 11.

PN145

THE COMMISSIONER: Yes.

PN146

MR MADDISON: And paragraph 10, where the advocate for the NUW says that the reasoning in Atlas Steel should not be followed and the reasoning of Merkel J should not be followed either. At paragraph 11, the Deputy Presidents hold - object that submission. The excerpt quoted above shows the Full Bench reasoning in Atlas Steel Full Bench decision was not simply an adoption of the reasoning of Merkel J, among other things the Atlas Steel Full Bench decision, see paragraph 20, considered a number of difficulties with NUWs construction of section 170LI which were not squarely addressed by either Merkel J or the Full Court in the Electrolux case.

PN147

And further at paragraph 15 the Deputy President goes on to say that he doesn't consider the Commission bound by the obiter dicta comments of the Full Court. The Full Court gives an example of the sale of a house. If a business is conducted from the house an agreement for the sale of the house and the associated business would appear to more than be a mere sales of real estate. Well, it does not arise in the matter before the Commission. I would suspect it had a more - had more comprehensive arguments be put to the Full Court on point it would not have concluded that the only effect of certification prescribed by section 170LY and LZ and, for example, it refers to other sections.

PN148

Now, we say that from those two findings of the Deputy President, we would say that on a proper examination of Electrolux 2, that those comments don't stand up to close scrutiny in that the Full Court was not only - didn't - not only had the benefit of Atlas Steel, but given the way the Merkel J decided Electrolux 1, they were full arguments and comprehensive arguments were put to the Full Court in respect of the construction issue, and if that is the basis of Deputy President Ives determination that obiter might not be as strong as it would otherwise be, we would say that the Deputy President was wrong, with the greatest respect, in coming to that view.

PN149

THE COMMISSIONER: He may, of course, really simply have been saying in this place we follow the Full Bench and unless a Full Bench is actually overturned. Anyway, it doesn't matter. I have got to make sense of it.

PN150

MR MADDISON: We would say technically speaking the Deputy President is probably correct, it is. It may be that a single member sitting alone is more - follow the Full Bench rather than obiter, albeit of a Full Court of the Federal Court.

PN151

THE COMMISSIONER: Yes.

PN152

MR MADDISON: But, given the nature of the case and the way it has developed where that Full Bench decision was right before that Full Court, we would say that it sufficiently throws into question to the correctness with respect to the Full Bench of Atlas Steel to say that the question at least is an open one rather than saying that I am bound by Atlas Steel.

PN153

THE COMMISSIONER: Yes. It is a very illustrious Full Bench of course.

PN154

MR MADDISON: They usually are, Commissioner.

PN155

THE COMMISSIONER: Some are more illustrious than others.

PN156

MR MADDISON: And we would say - and I am referring to you another Full Bench very shortly which we would say is equally illustrious as the Atlas Steel one. Now, we would say that - and I refer in my submissions to the decision of Senior Deputy President Kaufman, this is a decision that predates both Atlas Steel and Electrolux 2. Given Electrolux 2 we would say that this is the proper way to examine whether or not a matter can be - an agreement can be certified. If I just quickly take you to page 16 of the internet version, paragraph 29, where the Senior Deputy President starts an assumption that:

PN157

The agreements which I am dealing with contain non-pertaining clauses.

PN158

And then:

PN159

Do these clauses render the agreements incapable of certification.

PN160

Commissioner, we don't concede that clause 14, point 3, does not pertain in and of itself, but again, for the purpose of this submission, if we work on the assumption that it does not, we say that is not a bar to certification. And in paragraph 31, I won't read these, Commissioner, but paragraphs 31, 32 and 33 go to what we say, given Electrolux 2, is the correct approach to determining whether or not agreement can be certified in respect to the LI question.

PN161

THE COMMISSIONER: I have read this decision before, I am just skipping through it again.

PN162

MR MADDISON: Yes.

PN163

THE COMMISSIONER: I am in the issue of excision, that is all.

PN164

MR MADDISON: The other - this might in some way go to that question. The Senior Deputy President also turned his mind to if a particular clause did not pertain to the relationship, although you could certify it, what would that mean in respect of enforcement.

PN165

THE COMMISSIONER: Yes.

PN166

MR MADDISON: And that goes at paragraph 21 which is on page - - -

PN167

THE COMMISSIONER: Twenty-one, is it?

PN168

MR MADDISON: On page 11, Commissioner.

PN169

THE COMMISSIONER: Yes, I was interested in that point.

PN170

MR MADDISON: Now, if the Commission as currently constituted does have some concern about the validity or the ability to enforce it, we would say that that is not a matter that you need worry yourself about in terms of whether or not the agreement could be certified. If you form a view about it my not be enforceable we would say that that is not a bar to certification and as the Senior Deputy President points to this anomaly rests with Parliament if it be an anomaly.

PN171

THE COMMISSIONER: But then, what about the excision issue?

PN172

MR MADDISON: We would say - I think Deputy President Ives attempted to excise in one of the decisions a clause from the agreement - - -

PN173

THE COMMISSIONER: Yes, he was overruled wasn't he?

PN174

MR MADDISON: He was overruled.

PN175

THE COMMISSIONER: Yes. Have you got the overruling decision here?

PN176

MR MADDISON: I don't but I have got it - I can get it to you this afternoon, Commissioner.

PN177

THE COMMISSIONER: Sorry, no, I just - no, it is fine. Yes, I recollect it, yes.

PN178

MR MADDISON: Yes.

PN179

THE COMMISSIONER: Yes. It is not easy.

PN180

MR MADDISON: It seems to be a matter not quite yet free from doubt, Commissioner.

PN181

THE COMMISSIONER: Yes, indeed. But I am sure that when I have made a decision it won't be either.

PN182

MR MADDISON: Be that as it may, Commissioner, we would like at - - -

PN183

THE COMMISSIONER: But one day, I am sure it will all come back to a Full Bench and we will hear from them again on the subject. It doesn't make life easy for people in the meanwhile though.

PN184

MR MADDISON: No, but all we are suggesting, Commissioner, that be seized of the jurisdiction and similarly to Deputy President Ives and similarly to Senior Deputy President Kaufman, they were faced with certifications and they dealt with it according to what they believed was the law at the time, and that is similarly what we are asking you to do, Commissioner. Now, if contrary to those submissions that you don't take the wholistic view we would say, and I don't go to it in any great detail, but for the reasons in part B of the written submissions that going through those submission in part B and arriving at paragraph 13, we would say that paragraph 13 represents the subject matter of clause 14 point 3, and we would say that it is addressing the subject of representation of employees and specifically the means by which collective negotiations and continuing representation oversight for the employees by the CEPU is to be achieved.

PN185

And we would say that if that is the case then given the reasons in paragraph 65 and 66 of those submissions that it is either than a matter pertaining to the employment relationship or so incidental to that the agreements can be certified on that basis if you do look at the clause by clause analysis. There is one further matter, as you are aware, Commissioner, there are similar matters before Deputy President Hamilton where the minister has successfully intervened in asking, pursuant to section 46, certain questions to be referred to the Federal Court and the submissions I have just made go to, essentially, the first two of the questions that they want referred, that is whether - perhaps I can just hand up a - it is probably more convenient.

PN186

THE COMMISSIONER: Yes.

PN187

MR MADDISON: It is a bit heavily marked, Commissioner, but you will see the three questions.

EXHIBIT #A1 DOCUMENT HEADED QUESTIONS OF LAW TO BE REFERRED TO THE FEDERAL COURT OF AUSTRALIAN IN THE MATTER OF SGM ELECTRICAL PTY LIMITED ENTERPRISE BARGAINING AGREEMENT 2000-2003

PN188

THE COMMISSIONER: Yes, I am certainly not proposing to refer anything on. I am trying to keep it as simple as possible.

PN189

MR MADDISON: That is certainly what I would be urging Deputy President Hamilton as well and there is certainly some questions from the - some decisions in the Federal Court and so sometimes that route can be the longest route home by referring matters and rather than deciding the matter for yourself. But - - -

PN190

THE COMMISSIONER: And then see what happens on appeal.

PN191

MR MADDISON: Yes, we would say that is the more appropriate way of dealing with these matters. But I refer you to these for two reasons, (1) just so you are appraised of what matters that the minister is seeking to be referred. The minister said they are probably in the wrong order, that is 3 really should be perhaps 1; 2 stays 2 and 1 perhaps could become 3, because I suppose in the first instance the answer to question - as it is written here, question 3, may mean that question 2 is really not necessary to determine if the Federal Court does consistent with Electrolux 2 hold the view that the wholistic view is the preferred one then, whether or not one clause falls outside, might not be necessary to determine.

PN192

Now, the other matter, and I just go to this very briefly in closing, Commissioner, is that question 1 here, about whether or not clause 14.3 breaches part 10A and for that reason it cannot be certified because of - by reason of section 170LU(2)(a). Now just - because that matter is raised I just very briefly want to take you to that. The minister says that the reason that that question should be referred is due to comments made by Merkel J in Electrolux 1. They say this has sufficiently thrown into doubt the Full Bench decision in Accurate Management.

PN193

I will hand that up just out of courtesy, I don't take you tot hat, but just to provide a copy of Accurate Management - Accurate Factory Maintenance which is the Full Bench decision right on point, it is dealing with clause 14.3. The minister says that - if you can have regard to paragraph 47, which is on page 18 of 21 of the Internet version of Electrolux 1 - - -

PN194

THE COMMISSIONER: Yes.

PN195

MR MADDISON: - - - that Merkel J, in paragraph 47, said:

PN196

There are substantial difficulties about the involuntary discriminatory aspect of such a claim ...(reads)... by altering the form of the claim.

PN197

Now, we say two things about that. Firstly, the matter before Merkel J is done on the basis of agreed facts and one of those agreed facts was that the clause, although written neutrally as to union membership, would only be pursued against non-members, and that was different to the matter before the Full Bench with the presiding member Giudice J and in the same paragraph Merkel J very clearly distinguishes the facts before him, and he say:

PN198

Unlike the matter recently considered in the Commission, Accurate Factory Maintenance ...(reads)... the form of the draft.

PN199

We would say that that is the reason the minister wants that question referred and we would say that really, that is a submission without merit at all, as Merkel J has clearly distinguished Accurate Factory Maintenance. But we did want to bring that to your attention, Commissioner. Those are the submissions why we say, even given clause 14.3, that the agreement should be now capable of being certified. If the Commission pleases.

PN200

THE COMMISSIONER: Yes. Thank you very much, Mr Maddison, that was extremely thoroughly and extremely helpful. Mr Van Wyk, do you have anything to say in regard to those matters?

PN201

MR VAN WYK: No, not really.

PN202

THE COMMISSIONER: No, so you are not making any counter argument?

PN203

MR VAN WYK: Certainly not, no.

PN204

THE COMMISSIONER: All right, fine. Thank you very much, then I will reserve my decision and will look very closely at the matters, but I do want to actually see what the decision of Deputy President Hamilton is in regard to the matter where there have been quite fulsome submissions to see whether that casts any further light on the matter. Thank you.

AG2002/3962

INTEGRATED CONTROL SERVICES
ENTERPRISE AGREEMENT 2002-2003

Application by Communications, Electrical Electronic,
Energy, Information, Postal Plumbing and Allied Services
Union of Australia-Electrical Division Victorian
Divisional Branch and Others

PN205

THE COMMISSIONER: If we deal with the section 170XF issue first, this is in regard to Integrated Control Services Enterprise Agreement 2002-2003. Thank you.

PN206

MR MADDISON: Yes, Commissioner, again adopt the submissions in respect of the 170XF application that were made with AG2002/2965 where further to the reasons submitted in that matter we say that the National Electrical Electronic and Communications Contracting Industry Award 1998 is the appropriate award designated for the purpose of deciding whether or not the agreement passes the no disadvantage test.

PN207

THE COMMISSIONER: Yes. Good, thank you very much, Mr Maddison. There is no representative from the company here.

PN208

MR MADDISON: No.

PN209

THE COMMISSIONER: Then I am satisfied on the basis of the submissions before me and Mr Maddison's oral submissions that I should determine, pursuant to section 170XF of the Act, and I do determine that the award most appropriate for the purpose of the no disadvantage test is the National Electrical Electronic and Communications Contracting Industry Award 1998 and if we then just deal with the substantive issues and then just isolate then again clause 14.3 of the agreement in regard to bargaining agents fees. Yes.

PN210

MR MADDISON: Yes. Commissioner, we say that by reason of he statutory declaration which has been filed in conjunction with the application of the agreement that that witnesses the relevant requirements of the Act being complied with and on that basis we say that the agreement should be certified and also adopt the other submissions put to you today that - which I will in short refer to the bargaining agents fee submissions. We say for those reasons that the agreement should be certified.

PN211

THE COMMISSIONER: Yes. Good, thank you very much, Mr Maddison. Can I just ask you some questions. Does the union have at least one member employed by the business?

PN212

MR MADDISON: Yes, we do, Commissioner.

PN213

THE COMMISSIONER: Is the union entitled to represent the industrial interests of that member?

PN214

MR MADDISON: Yes, we are.

PN215

THE COMMISSIONER: Was the agreement approved by - if it was one person I am sure it was agreed - the agreement was approved by a valid majority. The company took reasonable steps to ensure that at least 14 days before approval was given the employees had access to a written copy of the agreement - - -

PN216

MR MADDISON: Yes.

PN217

THE COMMISSIONER: - - - and its terms were explained.

PN218

MR MADDISON: Yes.

PN219

THE COMMISSIONER: Yes, thank you. Then in this matter of the Integrated Control Services Enterprise Agreement 2002-2003 I am satisfied that with regard to all but one issue the relevant requirements of the legislation have been met. I note that clause 8, with regard to training and clause 9 with regard to efficiency and flexibility, clause 22 with regard to income protection insurance, clause 23 with regard to superannuation, clause 24 with regard to severance, clause 33 with regard to fares and allowances and clause 37 with regard to wages all appear to represent advantages over the award.

PN220

Clause 13 contains an appropriate dispute resolution clause with 13.1.3 a capacity for the matters to be referred to this Commission. The term of the agreement doesn't exceed 3 years and clause 5 provides for the term to be from the time of signing which was 26 July 2002 to 1 January 2003. However, this agreement does, at clause 14.3, contain a clause with regard to bargaining agents fees and so on that issue I reserve my decision and will take into account the submissions previously made this afternoon in regard to a matter of a similar kind. Thank you very much.

PN221

MR MADDISON: If the Commission pleases.

AG2002/3960

MULTIPIPE PTY LIMITED POWERLINE
ENTERPRISE AGREEMENT 2002-200

Application by Communications, Electrical Electronic,
Energy, Information, Postal, Plumbing and Allied Services
Union of Australia-Electrical Division Victorian Branch
and Another

PN222

THE COMMISSIONER: I note that I do have a letter from the company saying they are unable to attend. Let us do the section 170XF determination, Mr Maddison.

PN223

MR MADDISON: Thank you, Commissioner. Commissioner, for the purposes of the section 170XF application we rely on submissions put to you earlier today in AG2002/2965 and say by reasons of those submissions that the appropriate award is the National Electrical, Electronic and Communications Contracting Industry Award 1998 is the appropriate award for the purpose of deciding whether the agreement passes the no disadvantage test, and we do submit for the reasons and submissions given earlier, that the agreement does pass that test when measured against the designated award.

PN224

THE COMMISSIONER: Yes, thank you very much. On the basis of the submission - written submissions and the oral submission from Mr Maddison this afternoon, I am satisfied that it is appropriate to determine and I do determine in regard to section 170XF of the Act that the following award is the most appropriate for the purpose of the no disadvantage test and that is the National, Electrical, Electronic and Communications Contracting Industry Award 1998.

PN225

If we could then move on to the remaining issues with regard to this agreement, I note that at clause 9.3 of the agreement there is a bargaining agents fee clause and so if we could run through the various matters. Mr Maddison.

PN226

MR MADDISON: Yes, Commissioner. Commissioner, we say that the statutory declarations which have been filed in support of the application give evidence to the relevant requirements of the Act being complied with and on that basis, and on the basis of the written submissions and further oral submissions given today in respect of the bargaining agents fee matter, we say that the agreement can be certified and on that basis we seek the agreement be certified.

PN227

THE COMMISSIONER: Yes, thank you very much, Mr Maddison. I can only just ask in regard - in this matter, does the union have at least one member employed by the business?

PN228

MR MADDISON: Yes, we do, Commissioner.

PN229

THE COMMISSIONER: I note that there are 16 employees covered. Is the union entitled to represent the industrial interests of that member?

PN230

MR MADDISON: Yes, we are, Commissioner.

PN231

THE COMMISSIONER: Was the agreement approved by a valid majority of the employees?

PN232

MR MADDISON: It was, Commissioner.

PN233

THE COMMISSIONER: And did the company take reasonable steps to ensure that at least 14 days before approval was given employees had access to a written copy of the agreement?

PN234

MR MADDISON: Yes, they did.

PN235

THE COMMISSIONER: And before approval was given its terms were explained?

PN236

MR MADDISON: They were.

PN237

THE COMMISSIONER: Yes, thank you. In regard to this matter of Multipipe Pty Limited Powerline Enterprise Agreement 2002-2004 I am satisfied that all the requisite statutory provisions have been complied with, other than in regard to the issue of clause 9.3 of the agreement as to bargaining agents fees in which I reserve my decision. But I note that clause 10, with regard to training, clause 11, with regard to efficiency and flexibility, clause 19 with regard to income protection and trauma insurance, clause 20, with regard to severance, clause 33 with regard to classification structure and clause 36 with regard to wage rates all appear to represent advantages over the award.

PN238

There is an appropriate dispute resolution clause at clause 18, clause 18.1 contains a matter - capacity for matters to be referred to this Commission. The term of the agreement doesn't exceed 3 years. Clause 6 provides that the term is to be from the date of the certification to 1 January 2004. The agreement does end a bargaining period, bargaining period 200/36049 and so I reserve my decision as to the certification of this agreement in order to take into account your submissions, Mr Maddison with regard to clause 9.3 with regard to bargaining agents fees which is the only matter of concern I have with this agreement.

AG2002/3961

POWER CABLES PTY LIMITED POWERLINE
ENTERPRISE AGREEMENT 2002-2004

application by Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services
Union of Australia-Electrical Division Victorian Divisional
Branch and Another

PN239

THE COMMISSIONER: You are Mr Hannah, are you?

PN240

MR W. HANNAH: Correct.

PN241

THE COMMISSIONER: Yes, thank you. This is a matter of Power Cables Pty Limited Enterprise Agreement 2002-2004. There is a section 170XF application in this one that we might deal with first, Mr Maddison.

PN242

MR MADDISON: Yes, Commissioner. Commissioner, for the purpose of section XF application for the reasons and submissions given in AG2002/2965 earlier today, we say that the National, Electrical, Electronic and Communications Contracting Industry Award is the appropriate award for the purpose of deciding whether or not the agreement passes the no disadvantage test.

PN243

THE COMMISSIONER: Yes. And Mr Hannah, are you going to enter your appearance for Power Cables, you are from the company?

PN244

MR HANNAH: Yes that is right, I am the owner of the company.

PN245

THE COMMISSIONER: Yes, just recite your name and - - -

PN246

MR HANNAH: My name is Warren Hannah and I am the sole director and public officer of Power Cables Pty Limited.

PN247

THE COMMISSIONER: Good, thank you very much. Have you got any objections to Mr Maddison's submission regarding the determination of the relevant award for this matter. It is the only matter I am dealing with at this second.

PN248

MR HANNAH: No objections.

PN249

THE COMMISSIONER: Good, fine, thank you very much. Then on the basis of the written and oral submissions I am satisfied that pursuant to section 170XF of the Act that I should determine, and I do determine, that the most appropriate award is the National, Electrical, Electronic and Communications Contracting Industry Award 1998. And Mr Maddison, if we could then move on to the remaining matters with regard to this matter, Mr Hannah.

PN250

MR MADDISON: Yes, thank you, Commissioner.

PN251

THE COMMISSIONER: And I note that clause 9.3 of this agreement contains a bargaining agents fee clause.

PN252

MR MADDISON: Yes. In respect of that matter we adopt the oral submissions made earlier today in respect to it and provide written submissions in support of those oral submissions. We say that for those reasons the agreement is capable of being certified, even given the inclusion of clause 9.3 and further to that, we say, Commissioner, that on the basis of the statutory declarations which have been filed in support of the application that all the relevant requirements of the Act have been complied with and on that basis we seek that the agreement be certified.

PN253

THE COMMISSIONER: Yes, can I just ask you, does the union have at least one member employed by the business. I note there are 18 employees in this matter?

PN254

MR MADDISON: Yes, we do, Commissioner.

PN255

THE COMMISSIONER: Is the union entitled to represent the industrial interests of that member?

PN256

MR MADDISON: Yes, we are, Commissioner.

PN257

THE COMMISSIONER: Was the agreement approved by a valid majority of the employees?

PN258

MR MADDISON: Yes, it was.

PN259

THE COMMISSIONER: And, Mr Hannah, did the company take reasonable steps to ensure that at least 14 days before approval was given the employees had access to a written copy of the agreement?

PN260

MR HANNAH: Yes, we did.

PN261

THE COMMISSIONER: And before approval was given, its terms were explained?

PN262

MR HANNAH: Yes.

PN263

THE COMMISSIONER: Yes, thank you. Mr Hannah, have you got anything to say about this agreement, either generally or specifically with regard to the issue of the bargaining agents fee clause?

PN264

MR HANNAH: Only to say that it is my understanding that the bargaining agents fee clause applies to people who don't have union membership and that the union, through that clause, is entitled to bargaining agents fee in lieu of the union fees normally union dues for employees who may exercise their right not to be part of a union.

PN265

THE COMMISSIONER: Yes, yes. And you have got no or expressing any objection to - - -

PN266

MR HANNAH: No, I have no objection, sir, that - - -

PN267

THE COMMISSIONER: - - - to it, okay.

PN268

MR HANNAH: No.

PN269

THE COMMISSIONER: Good, thank you very much, sir. Nothing further from you, Mr Hannah.

PN270

MR HANNAH: No, Commissioner.

PN271

THE COMMISSIONER: Mr Maddison?

PN272

MR MADDISON: Yes, just simply make a submission in respect of the view that is expressed by Mr Hannah.

PN273

THE COMMISSIONER: Yes.

PN274

MR MADDISON: The union never has, and we certainly do not concede that the clause is only directed to non members.

PN275

THE COMMISSIONER: Right, well that is interesting. Is that covered in your submission, I just can't remember - in your written submissions.

PN276

MR MADDISON: Those submissions don't go to the LU matter. We say that that matter has been determined by the Full Bench in Accurate Factory Maintenance which dealt with that clause and we have never made that concession indeed in the matter before Deputy President Hamilton. The minister does rely upon comments on the ETU we page. Those comments certainly fall a long way short of saying that the clause would only be directed at non members.

[2.45pm]

PN277

THE COMMISSIONER: Just as a matter of interest, where is this headed if - well, I suppose I am curious as to where you go with this issue. I suppose you will just have to appeal, if you keep on getting knocked back you will just have to appeal them and see where it goes with a Full Bench won't you?

PN278

MR MADDISON: Well, this stage we would say that no agreement has been refused to be certified on the basis of that clause. Indeed, Deputy President Hamilton, has invited some issues about other clauses in that agreement and certified, once receiving submissions about that clause. So we would say at this stage that all the decisions are in our favour as to the certification - certificability, if that is such a word, Commissioner, of agreements that do have this clause.

PN279

THE COMMISSIONER: Certificatability, how does that sound.

PN280

MR MADDISON: That sounds a bit better than my pronunciation of that word if it is such a word.

PN281

THE COMMISSIONER: Yes. Okay, fine. That was just a matter of curiosity, it is not relevant to any finding I might reach. I just was curious. Thank you. I have heard the - on the basis of the written submissions and the oral submissions today from the parties. In regard to this matter of Power Cables Pty Ltd, Powerline Enterprise Agreement 2002-2004, I am satisfied at this stage that all but one of the matters in the agreement, that is clause 9.3, with regard to bargaining agents fees meets the relevant statutory requirements.

PN282

I note that with regard to the disadvantage test, clause 10, with regard to training, clause 11, with regard to efficiency and flexibility, clause 12, with regard to fares and allowances, clause 17, with regard to superannuation, clause 19, with regard to income protection insurance, clause 20, with regard to severance, and clause 36, with regard to wages, all appear to represent advantages over the award.

PN283

There is an appropriate dispute resolution procedure at clause 18. Clause 18.1, contains a capacity for matters to be referred to this Commission and clause 6 provides for a term of the agreement that does not exceed three years, it is provided to be the date of certification to 1 January 2004. The agreement does end a bargaining period and so I reserve my decision on certification of this agreement, solely with regard to the issue of clause 9.1.3 as being the outstanding matter that requires my reaching some conclusion in issuing some written decision that finalises the matter. Thank you very much.

AG2002/4009

TREADWELL ELECTRICS PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2000-2003

Application by the Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia and Another

PN284

THE COMMISSIONER: Mr Maddison, would you like to address me on the section 170XF issue, and I will hear from Mr Kennedy with regard to that.

PN285

MR MADDISON: Is there an XF, I presume there must have been an XF application been lodged?

PN286

THE COMMISSIONER: It has a sticker on the file.

PN287

MR MADDISON: I just apprehend the company being a member of NEECCIA, they should be in any event bound by the award.

PN288

THE COMMISSIONER: For some reason it is noted that all the paperwork has come in for the determination of a designated award. So we will do it.

PN289

MR MADDISON: Yes. On that basis then - - -

PN290

THE COMMISSIONER: Yes, for abundant caution, Mr Maddison.

PN291

MR MADDISON: Yes. On the basis of the application being filed and out of abundance of caution, Commissioner, we in respect of the 170XF application rely upon the submissions made in respect of earlier matter today, AG2002/2965, and for those reasons submit that the National Electrical Electronic and Communications Contracting Industry Award 1998 is the appropriate award to be designated for the purposes of deciding whether or not the agreement passes the no disadvantage test.

PN292

THE COMMISSIONER: Yes. Thank you. Mr Kennedy, anything from you in regard to that?

PN293

MR KENNEDY: No, we support Mr Maddison's submission in that respect, Commissioner.

PN294

THE COMMISSIONER: Thank you very much then. In regard to the issue of determination pursuant to section 170XF of the Act, I am satisfied that I should issue such a determination and I do issue a determination that the National Electrical Electronic and Communications Contracting Industry Award 1998, is the most appropriate award for the purpose of the no disadvantage test. Thank you. And if we could then move on to the substantive issues of the agreement. And I note this agreement has at clause 14.3, a bargaining agent's fee clause and that is the matter that I have specific concerns about and will be reserving my decision on. But I am wanting to hear from you overall, Mr Maddison, and then from Mr Kennedy.

PN295

MR MADDISON: Thank you, Commissioner. In respect of 14.3, by reason of the written submissions and the further supplementary oral submissions today, we say that even given the inclusion of that clause he agreement can be certified, in our submission. In respect of the other matters, we say that the statutory declaration, signed by the State Secretary, Mr Mighell, accompanying the application, gives evidence to the fact that the relevant requirements of the Act have been complied with, and accordingly we seek that the agreement be certified.

PN296

THE COMMISSIONER: Yes, thank you. Can I just ask, does the union have at least one member employed by the business?

PN297

MR MADDISON: Yes, we do, Commissioner.

PN298

THE COMMISSIONER: Is he entitled to represent the industrial interests of that member?

PN299

MR MADDISON: Yes, we are.

PN300

THE COMMISSIONER: And was the agreement approved by a valid majority of he employees?

PN301

MR MADDISON: Yes, it was.

PN302

THE COMMISSIONER: Mr Kennedy, can you tell me did the company take reasonable steps to ensure that at least 14 days before approval was given employees had access to a written copy of he agreement?

PN303

MR KENNEDY: Yes, they did, Commissioner.

PN304

THE COMMISSIONER: And before approval was given, its terms were explained?

PN305

MR KENNEDY: Yes, they were.

PN306

THE COMMISSIONER: What submissions would you like to make with regard to this matter, Mr Kennedy?

PN307

MR KENNEDY: With respect to meeting the requirements of the Act?

PN308

THE COMMISSIONER: Yes.

PN309

MR KENNEDY: Section 14.3, aside, we support Mr Maddison.

PN310

THE COMMISSIONER: So you have no objection, no special submission you want to make as to the bargaining agent's fee clause?

PN311

MR KENNEDY: Just a very brief submission if we could.

PN312

THE COMMISSIONER: Yes, of course.

PN313

MR KENNEDY: We have had the benefit of seeing Mr Maddison's extensive submission, and having read that and discussed it, and discussed it with the employer who I represent here today, although the situation is blurred a little, we can see no conclusive prohibition to inclusion of a clause such as 14.3 in a certified agreement at this stage. So we would support its insertion in the agreement and certification of the agreement with it in.

PN314

THE COMMISSIONER: Would you say, at the very least what Senior Deputy President Kaufman says is right, that if it is unenforceable, then if that clause is unenforceable in a Court of law then it is unenforceable in a Court of law.

PN315

MR KENNEDY: Yes.

PN316

THE COMMISSIONER: Good. Thank you. In this matter of the Treadwell Electrics Pty Ltd Enterprise Bargaining Agreement 2000-2003, I am satisfied on the basis of the written submissions and the oral submissions today from Mr Maddison and Mr Kennedy, that all of the relevant statutory requirements have been met, subject only to my reservation with regard to clause 14.3 with regard to bargaining agent's fees. With regard to the no disadvantage test I note that clause 9, with regard to measures to achieve efficiency and flexibility in clauses 15 and 16 with regard to apprentices, clause 22, with regard to income protection insurance, clause 23, with regard to superannuation, clause 24, with regard to severance, clause 33, with regard to allowances and clause 37, with regard to wages, all of those appear to represent advantages over the award.

PN317

I note that there is an appropriate dispute resolution clause at clause 13 and clause 13.1.1.3 contains a capacity for matters to be referred to this Commission. The term of the agreement does not exceed three years at clause 5 and is to be from the date of signing, which I find to be 30 July 2002 to 1 January 2003. And so I reserve my decision only insofar as relates to the issue of clause 14.3, as to the bargaining agent's fee. Thank you.

AG2002/3958

FORMWAY METERING SERVICES PTY LTD
ENTERPRISE AGREEMENT 2002-2003

Application by the Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia-Electrical
Division Victorian Divisional Branch and Another

PN318

THE COMMISSIONER: Mr Maddison, this one has come to - I just wonder why this one has come to Melbourne.

PN319

MR MADDISON: Sorry, Commissioner?

PN320

THE COMMISSIONER: I wondered why this one had come to Melbourne. It seems to be a sort of entirely Queensland matter, but that may not matter at all.

PN321

MR MADDISON: I think the company is owned and operated out of Queensland.

PN322

THE COMMISSIONER: Right.

PN323

MR MADDISON: But they have some work down here, as I understand.

PN324

THE COMMISSIONER: Right. That is fine. I don't mind. It is unusual for me to get one that is seen to be specifically with regard to Queensland.

PN325

MR MADDISON: Yes. It does relate to work performed in the State of Victoria.

PN326

THE COMMISSIONER: All right. Fine. Thank you. This is a 170XF matter as well. Thank you. I note also I have got a query with regard to the name of the witness, the Justice of the Peace, who has witnessed Mr Finessio's signature. I just wish people - you might just know, can I just - would you take on board for me, Mr Maddison, the need for the names of signatories who witness statutory declarations to be printed as well as signed.

PN327

MR MADDISON: Yes.

PN328

THE COMMISSIONER: And for their qualification to witness the statutory declaration to be written as well as scribbled or initials put. It would make life much easier.

PN329

MR MADDISON: I will certainly pass that on to - - -

PN330

THE COMMISSIONER: Thank you very much. Some of them are people who are regulars and it is just that I don't know who they are. I mean I can remember that I have seen their signature some other time and they probably regularly witness Mr Mighell's signature, but their names do not mean a lot to me, except on a couple of occasions I remember I have seen that signature on some other occasion, but who it is I don't know. All right. If we could deal with the section 170XF application on this one. Thank you.

PN331

MR MADDISON: Yes. Commissioner, we say that for the purpose of that application, adopted submissions put to you earlier today in matter AG2002/2965, and again submit that the National Electrical Electronic and Communications Contracting Industry Award 1998 is the appropriate award to be designated as that award for the purpose of he no disadvantage test.

PN332

THE COMMISSIONER: Thank you very much, Mr Maddison. Yes. And I am satisfied on the basis of the written and oral submissions that I should determined, and I do determine, pursuant to section 170XF of the Act, that the National Electrical Electronic and Communications Contracting Industry Award 1998, is the most appropriate award for the purposes of deciding whether this agreement passes the no disadvantage test. And if we could then move on to the substantive issues.

PN333

MR MADDISON: Yes, Commissioner. We have provided today written submissions in respect of why the agreement can be certified given the inclusion of a bargaining agent's fee clause and supplementing them with oral submissions, we adopt them for the certification. In respect of the other matters we say that the statutory declaration which has been filed in accordance with the Rules and accompanying the application do give evidence to the fact that the relevant requirements have been complied with. And accordingly we seek the agreement be certified on those bases.

PN334

THE COMMISSIONER: Yes. Who is Mr Stott; Mr Stott is one of the regulars?

PN335

MR MADDISON: Yes. Mr Stott, is the accountant and he is a properly qualified accountant I think given that his qualifications he is able to witness the signing of statutory declarations. But I will ensure that the statutory declarations do give a clear indication of who he is and what his qualifications are that give rise to that.

PN336

THE COMMISSIONER: Yes. There is another signature on some of the others, it appears to be - is it Porter, someone - - -

PN337

MR MADDISON: It might be Pat Power.

PN338

THE COMMISSIONER: Pat Power.

PN339

MR MADDISON: He is an ex member of Parliament of Victoria and that - - -

PN340

THE COMMISSIONER: Yes, indeed.

PN341

MR MADDISON: That is the reason by which he is qualified to - - -

PN342

THE COMMISSIONER: All right. Lachlan, well you will note there on some other ones - we might just go through and flag that it is Pat Power, former Member of the Victorian Parliament.

PN343

MR MADDISON: Yes, that is correct, Commissioner.

PN344

THE COMMISSIONER: Good, thank you. Anything else on this one, Mr Maddison?

PN345

MR MADDISON: No, nothing further.

PN346

THE COMMISSIONER: All right. Does the union have at least one member employed by the business?

PN347

MR MADDISON: Yes, we do, Commissioner.

PN348

THE COMMISSIONER: Is the union entitled to represent the industrial interests of that member?

PN349

MR MADDISON: Yes, we are.

PN350

THE COMMISSIONER: Yes. I note there are 10 employees covered. Was the agreement approved by a valid majority of employees?

PN351

MR MADDISON: Indeed it was, Commissioner.

PN352

THE COMMISSIONER: Yes. Did the company take reasonable steps to ensure that at least 14 days before approval was given employees had access to a written copy of the agreement?

PN353

MR MADDISON: Yes.

PN354

THE COMMISSIONER: And before approval was given, were its terms explained?

PN355

MR MADDISON: They were, Commissioner.

PN356

THE COMMISSIONER: Mr Maddison, just another thing on these. Do you and Mr Cooney work in the same office, or are you in separate - - -

PN357

MR MADDISON: No, we don't. We do not, Commissioner.

PN358

THE COMMISSIONER: No. No, no.

PN359

MR MADDISON: We do not, which may or may not be unfortunate.

PN360

THE COMMISSIONER: No, no, that is fine. I just note on these that no breakdown is given of whether any of these employees speak English as a second language or - that is the one I am more worried about than anything else, because it relates to the issue of whether material has been made available to them in the relevant languages, and what not.

PN361

MR MADDISON: Yes.

PN362

THE COMMISSIONER: You might just note, there are questions in the stat dec there is a place where that material is set out. Could you just ask that that be filled in, in future. Good. Anything else?

PN363

MR MADDISON: Nothing further, Commissioner.

PN364

THE COMMISSIONER: No. All right then. I note this one, at clause 28, also contains provision with regard to bargaining agent's fees. You are making the same submissions to me I take it with regard to that clause, as you have in the previous matters this afternoon?

PN365

MR MADDISON: Yes.

PN366

THE COMMISSIONER: Yes. Thank you very much. Then in regard to the Formway Metering Services Pty Ltd Enterprise Agreement 2002-2203, I am satisfied in regard to all matters other than as to clause 28 on bargaining agent's fees, that the agreement meets the relevant provisions of the legislation. I note that with regard to the no disadvantage test clause 7 as to remuneration, clause 9 as to hours of work, clause 15 with regard to accident compensation and rehabilitation, clause 16 with regard to training and development, clause 20 with regard to redundancies, all appear to represent advantages over the award.

PN367

At clause 18 there is an appropriate dispute resolution provision. The term of the agreement does not exceed three years, it is from the date of certification to 31 December 2003. The agreement does end a bargaining period, the bargaining period 2001, 4249. So I am satisfied that I should certify this agreement other than with regard to clause 28 on which I reserve my decision. So I will issue that decision in association with the decision on these other matters as quickly as possible. Thank you.

AG2002/3959

EASY ABC PTY LTD POWERLINE ENTERPRISE
AGREEMENT 2002-2004

Application by the Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia-Electrical
Division Victorian Divisional Branch and Another

PN368

THE COMMISSIONER: Could you deal with the section 170XF application on this one. Thank you.

PN369

MR MADDISON: Yes, Commissioner. For the reasons and submissions given earlier today in AG2002/2965, we say for the purposes of the XF application that the National Electrical, Electronic and Communications Contracting Industry Award 1998 is the appropriate award for the purpose of deciding whether or not the agreement passes the no disadvantage test.

PN370

THE COMMISSIONER: Yes. Thank you very much, Mr Maddison. On the basis of the written submissions and your submissions this afternoon, Mr Maddison, I am satisfied that I should determine and I do determine pursuant to section 170XF of the Act that the National Electrical, Electronic and Communications Contracting Industry Award 1998 is the most appropriate award to be used for the purposes of deciding whether this agreement passes the no disadvantage test. And then if we could move on to the substantive issues.

PN371

MR MADDISON: Yes. Firstly, in respect of the no disadvantage test, we say the agreement clearly does pass that test on either a clause by clause or a holistic view of the agreement, it does so. Further to that we say that in respect of the relevant requirements the Act - the statutory declaration which is filed in accordance with the Commission Rules and accompanying the application, does give evidence to the fact that the relevant requirements of the Act have been met. And on that basis we seek the agreement be certified.

PN372

Further we do adopt the oral submissions put to you today and we have provided written submissions in respect to why the inclusion of the bargaining agent's fee clause is not an impediment to certification of this agreement. For those reasons we seek the agreement be certified.

PN373

THE COMMISSIONER: Yes. I note that clause 9.3, contains a provision with regard to bargaining agent's fees. Can I just ask you, Mr Maddison, does the union have - there is only one employee, does the union have at least one member employed by the business?

PN374

MR MADDISON: Yes, we do.

PN375

THE COMMISSIONER: Is the union entitled to represent the industrial interests of that member?

PN376

MR MADDISON: Yes, we are.

PN377

THE COMMISSIONER: Was the agreement approved by a valid majority of employees?

PN378

MR MADDISON: Barring, schizophrenia, yes, it was.

PN379

THE COMMISSIONER: Yes, that is right. And did the company take reasonable steps to ensure that at least 14 days before approval was given the employee had access to a written copy of the agreement?

PN380

MR MADDISON: Yes, he did.

PN381

THE COMMISSIONER: And before approval was given its terms were explained?

PN382

MR MADDISON: Yes.

PN383

THE COMMISSIONER: Yes. Thank you. I am satisfied that in all respects other than as regards to clause 9.3, on bargaining agent's fees, that this agreement meets the relevant statutory requirements. I note that clause 10, with regard to training, clause 11 with regard to efficiency and flexibility, and clause 12 with regard to fares and allowances, all seem to represent advantages over the award. Clause 18 contains an appropriate dispute resolution provision, with clause 18.1 providing for a capacity of matters to be referred to this Commission.

PN384

The term of the agreement does not exceed three years, it is to be from the date of certification to 1 January 2004, under clause 6 and subject only to my reserving my decision with regard to clause 9.3 on the bargaining agent's fee, I am otherwise satisfied that this agreement is appropriate for certification. But I reserve my decision on certification in order to make a decision with regard to that specific issue. Thank you very much, Mr Maddison, you have been a big help. I will now adjourn.

ADJOURNED INDEFINITELY [3.08pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DOCUMENT HEADED QUESTIONS OF LAW TO BE REFERRED TO THE FEDERAL COURT OF AUSTRALIAN IN THE MATTER OF SGM ELECTRICAL PTY LIMITED ENTERPRISE BARGAINING AGREEMENT 2000-2003 PN188