AG2002/3951, Transcript of Proceedings [2002] AIRCTrans 3575 (18 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 VT05525

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

AG2002/3951, 3953, 3934, 3935
3952, 3954, 3955, 3967, 3968

CFMEU AND LUCAS WATERPROOFING
SYSTEMS (VIC) PTY LTD BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2999-2002

CFMEU AND RACK & FILE COMMERCIAL
PTY LTD BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 1999-2002

CFMEU AND PATRICK O'NEILL BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 1999-2002

CFMEU AND POWER PLANT BRICKLAYING
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 1999-2002
CFMEU AND DYNAMIC CLOSURES (AUST) PTY LTD
BUILDING AND CONSTRUCTION INDUSTRY
ON-SITE/OFF-SITE COLLECTIVE BARGAINING
AGREEMENT 1999-2002

CFMEU AND DYNAMIC CLOSURES (AUST) PTY LTD
BUILDING AND CONSTRUCTION INDUSTRY ON-SITE/
OFF-SITE COLLECTIVE BARGAINING AGREEMENT
1999-2002

CFMEU AND ROBERTSON CONTRACTING BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 1999-2002

CFMEU AND MISTER CABINETS PTY LTD
BUILDING AND CONSTRUCTION INDUSTRY ON-SITE/
OFF-SITE COLLECTIVE BARGAINING AGREEMENT
1999-2002

CFMEU AND JOHN ARNOLD SHOPFITTERS BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 1999-2002

CFMEU AND MEROLLI CONCRETE AND CONSTRUCTION
BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 1999-2002

Applications under section 170LJ of the Act
by Lucas Waterproofing Systems (Vic) Pty Ltd
and Others for certification of above
agreements

MELBOURNE

1.36 PM, THURSDAY, 29 AUGUST 2002

AG2002/3951

Application by Lucas Waterproofing Systems
(Vic) Pty Limited and Another

PN1

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

PN2

THE COMMISSIONER: Good, thank you very much. And we have people here from two companies, Ms Garcia and Mr Tollitt. So I will deal first with the matter of AG2002/3951 which is the CFMEU and Lucas Waterproofing Systems (Vic) Proprietary Limited Building and Construction Industry Collective Bargaining Agreement 1999-2002. Ms Garcia, would you like to enter your appearance?

PN3

MS S. GARCIA: I am here from Lucas Waterproofing (Vic) Proprietary Limited, Noble Park.

PN4

THE COMMISSIONER: Good, thank you very much. Well, Mr Wainwright, you are going to run through things and then I can hear from Ms Garcia. Thank you very much.

PN5

MR WAINWRIGHT: Yes, Commissioner. This is an application under section 170LJ of the Act. The parties have filed with you an original copy of the agreement signed by both parties and statutory declarations. The agreement contains a nominal expiry date that is no longer than three years from the date on which the agreement was made. It contains a dispute settlement procedure. We believe that it meets all of the requirements of the Act and we seek that it be certified.

PN6

THE COMMISSIONER: Yes, thanks. Mr Wainwright, all of these agreements today involve the same clause 9 and I have spoken to you before about being worried about these clauses as not providing absolute certainty as to the paths to be gone through. It requires agreement as to whether you go to the Disputes Board or whether you come to the Commission. And you said you were going to be trying to fix these clauses up. How is that coming along?

PN7

MR WAINWRIGHT: Well, we have fixed the clause up, Commissioner, but because of the way in which the agreement has been formulated that that is the 1999-2002 agreement. The fruits of our labour in fixing it up and certainly the result of your advice will be seen in the 2002.

PN8

THE COMMISSIONER: Later on. That is fine.

PN9

MR WAINWRIGHT: But in relation to the certification we believe that the statutory requirement is that there is a dispute settlement procedure in whatever form.

PN10

THE COMMISSIONER: Yes, that is right. It is just that I had one involving one of your agreements the other day and it was a problem and I just highlight that it is in our members' best interests not to leave that element of doubt. I think - - -

PN11

MR WAINWRIGHT: Certainly. I can only reiterate in relation to this agreement our view is that the dispute settlement procedure gives the Commission power to conciliate and arbitrate in the eventuality of any dispute under the dispute settlement procedure and our view is that the dispute settlement procedure gives the parties the option of going either to the Disputes Board or to the Commission. But I understand your view about the way that it is constructed.

PN12

THE COMMISSIONER: And that is fine and I am not objecting, I am just concerned for the future and hoping that this will be tidied up for the future. And I did have a matter the other day with one of your people when you were in Sydney and it just highlighted the need to fix this up for the future. Mr Wainwright, if I could just ask you a few questions that relate to section 170LJ. Does the union have at least one member employed by the business?

PN13

MR WAINWRIGHT: We do.

PN14

THE COMMISSIONER: There is only one person. Is the union entitled to represent the industrial interests of that member?

PN15

MR WAINWRIGHT: Yes, we are.

PN16

THE COMMISSIONER: Obviously the agreement must have been approved by a valid majority of employees. Is that right?

PN17

MR WAINWRIGHT: Yes.

PN18

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

PN19

MS GARCIA: Yes, we had that agreement available at all times.

PN20

THE COMMISSIONER: Yes. And its terms were explained to the employee?

PN21

MS GARCIA: Yes.

PN22

THE COMMISSIONER: Yes, thank you very much. Having, considered all of the submissions, those in writing, and the submissions today from Mr Wainwright and Ms Garcia, I am satisfied that in relation to the CFMEU and Lucas Waterproofing Systems (Vic) Proprietary Limited Building and Construction Industry Collective Bargaining Agreement 1999-2002 does meet all the relevant statutory requirements particularly those in section 170LJ and section 170LT. I note that there is an adequate dispute resolution procedure at clause 9. The term of the agreement doesn't exceed three years at clause 6.

PN23

It is provided to be from 1 December 1999 to 30 November 2002. It clearly passes the no disadvantage test, particularly noting clause 11 with regard to classification structure and rates of pay, at clauses 12, 13 and 14 as to allowances and clause 15 as to hours of work, clause 23 as to industry standards and clause 24 on income and trauma protection. And so I do certify this agreement today, 29 August 2002. Thanks very much. Thanks, Ms Garcia, that is all there is to it.

PN24

MS GARCIA: Okay, thank you.

PN25

THE COMMISSIONER: Thank you, and you can be excused.

AG2002/3953

Application by Rack and File Commercial
Pty Limited and Another

PN26

THE COMMISSIONER: I note Mr Wainwright's appearance and Mr Tollitt, you are appearing on behalf of the company. Yes, if you would just say your name and - - -

PN27

MR P. TOLLITT: I am a Director of Rack and File Commercial of 2 Studley Street, Abbotsford.

PN28

THE COMMISSIONER: Good. And you are happy for Mr Wainwright to do the presentation with regard to the agreement? And I will just ask you a few questions at some stage.

PN29

MR TOLLITT: Absolutely, thank you.

PN30

THE COMMISSIONER: But you are supporting the application, Mr Tollitt, is that right?

PN31

MR TOLLITT: Yes, I am. I seek clarification with one part which is Incolink.

PN32

THE COMMISSIONER: Okay. Well, why don't you ask your question now and I will just put my glasses on to look at the look of dismay on Mr Wainwright's face and - - -

PN33

MR WAINWRIGHT: No, no, no. Mr Tollitt had told me beforehand.

PN34

MR TOLLITT: Yes. This is actually a new experience for us and I wasn't sure how to make this - well, it is a question. The demographics of our business are such that we are now working for builders from time to time. It is less than 15 per cent of our customer base as basically our business is shelving, compactus and filing systems. Union representation not a problem at all and all the guys we have had have been CFMEU, CFME - you know what I mean - - -

PN35

MR WAINWRIGHT: Yes.

PN36

MR TOLLITT: - - - after many years, and CBUS the same. Long service leave, we have an exemption as our works don't fall under the Act and I would question Incolink under those same circumstances in that our people are gainfully employed at a lot of other tasks and duties during the week other than working on building sites installing shelving. It is not fittings and fixtures as such.

PN37

THE COMMISSIONER: So, Mr Wainwright?

PN38

MR WAINWRIGHT: Well, it is a problem we run into from tome to time with people who are in a mixed kind of industry, I suppose. And our approach has been to point to the applications clause of the enterprise agreement. The application of the agreement is for the building and construction work of the company. Now, it is difficult to work out what proportion of the company's work is on building and construction.

PN39

The way we generally like to approach it is for weeks where employees are engaged in work that falls within the application of the agreement we seek that the agreement in regard to the Incolink provisions be met. So an Incolink fund be set up. When they are installing the compactus and so forth they are on site. During that week the Incolink contribution be made. If they in the factory all week and doing that work, well, we wouldn't seek to have the incoming contribution made.

PN40

THE COMMISSIONER: Right. Of course, it is not a matter for the certification of the agreement, Mr Tollitt, but I welcome your coming and asking the question here and using the Commission as a forum to seek clarification of that issue. The situation precisely is, as Mr Wainwright has pointed out, that the agreement under clause 5 is stated to have application in the State of Victoria to your company in respect to all of its employees engaged in building and construction work as defined by the award. So it is only to the extent that you have employees engaged in building and construction work as defined by the award that the agreement actually applies to any of your employees.

PN41

Unfortunately, it is not always easy to actually work that out and I have to say that if you haven't - noting what Mr Wainwright says - I have just dealt with a case today, not involving the CFMEU but another union, involving this very issue and in fact Incolink hasn't been able to even give a clear answer itself as to, you know, when Incolink kicks in and when it doesn't. So I think this is something which, notwithstanding what Mr Wainwright has said to you today, you should be seeking urgent clarification of that matter so that you don't have any problems in the future.

PN42

MR TOLLITT: I did actually seek that through Incolink as I had done previously in '92. The issue - we quite happily will pay those fees and charges and we have had an account with Incolink for many years, indeed they are one of our customers. But the issue would be, for example, we could be on site for one day or a half a day for one week in that entire month and we were looking towards, maybe, a pro rata. We had the arrangement with CBUS. Everything is great there.

PN43

I would have thought maybe we could do the same thing with Incolink because you can appreciate with a job, say Waltons Constructions, where our part of the job more often than not was always after the builder had completed the building works. Now, it falls within the scope of the builders contract. Now that could be four hours. Now, to put the two guys onto site for that four hours has cost us somewhere in the vicinity of 300, a shade short of $300. Now, the installation charges for that job are less than that. That really is the issue.

PN44

We are working much better in our office to actually try and program work better so that it is not such a burden on one job but we still do struggle from time to time. It is a highly competitive industry.

PN45

THE COMMISSIONER: Yes, indeed. Well, I think we all understand that. Mr Wainwright, I am just wondering how best - you have hear what Mr Tollitt has had to say. This is really an issue that the individual organiser would need to focus on.

PN46

MR WAINWRIGHT: Yes, certainly, I have seen instances where, for instance, Mr Cummins has dealt with companies who are putting fences on sites and an arrangement has been reached where we are satisfied that the spirit of the agreement is being upheld and the company is satisfied that they are not paying above the odds, if you like. So I think what I can undertake to do is to have further discussions with Mr Tollitt and to make sure that that situation is clarified.

PN47

But to the extent that he can rely on the transcript, what I say is that all we are seeking is that the conditions in the EBA be met when the installation work is being done. That the agreement is not seeking to follow into the workshop at this point. You know, we are happy to talk to him about an agreement for the workshop as well but at this point we are talking about his on-site work and if we can work out together what that proportion is that is what we will do.

PN48

MR TOLLITT: Yes, I appreciate that opportunity because I have hit a brick wall a couple of times. It is difficult to detail to some people, yes.

PN49

THE COMMISSIONER: Yes. Well, you are satisfied with that undertaking from Mr Wainwright.

PN50

MR TOLLITT: Absolutely, yes.

PN51

THE COMMISSIONER: All right, Mr Wainwright, if you just run me through the rest of the think, thank you.

PN52

MR WAINWRIGHT: Yes, Commissioner. Just in regards to this agreement, the agreement contains a dispute settling procedure at clause 9. It contains a nominal expiry date that is no longer than three years from the date on which the agreement is made. Commissioner, as you have heard, the CFMEU has at least one member with this company and we are entitled under our rules to cover the industrial interests of that member and the employees who are covered by the agreement have had the opportunity to look at the agreement 14 days before they voted on it and a valid majority of those employees indeed approved the agreement. On that basis I seek that the agreement be certified.

PN53

THE COMMISSIONER: Yes, thanks very much. Mr Tollitt, anything further from you?

PN54

MR TOLLITT: No, no, that covers it.

PN55

THE COMMISSIONER: So you support the application

PN56

MR TOLLITT: Absolutely.

PN57

THE COMMISSIONER: Yes, thanks very much. Then in the matter of the CFMEU and Ranks and File Commercial Proprietary Limited Building and Construction Industry Collective Bargaining Agreement 1999 to 2002, I am satisfied that it meets all the relevant statutory requirements particularly those in section 170LJ and section 170LT and I note that it satisfies the no disadvantage test on section 170XA particularly bearing in mind clause 11 as to classification structure and rates of pay, clauses 12, 13 and 14 as to allowances, clause 15 as to hours of work, clause 23 as to industry standards and clause 24 as to income and trauma protection.

PN58

I note that clause 9 contains an appropriate dispute resolution clause and clause 6 sets out a term that doesn't exceed three years. It is stated to be 1 December 1999 to 30 November 2002 and, accordingly, I do certify this agreement today, 29 August 2002. Good, thank you very much, Mr Tollitt, you can be excused.

PN59

MR TOLLITT: Thank you, Commissioner.

AG2002/3934

Application by the Construction, Forestry, Mining
and Energy Union - Construction and General Division,
Victorian Branch and Another

PN60

THE COMMISSIONER: Mr Wainwright.

PN61

MR WAINWRIGHT: Yes, Commissioner, in regard to this agreement the CFMEU submits that the agreement meets the requirements of the Act. It contains a dispute settlement procedure at clause 9. It contains a nominal expiry date that is no longer than three years from the date on which the agreement is made. Commissioner, the employer's statutory declaration outlines the processes that they went through to ensure that the employees had ready access to the agreement and understood the contents of the agreement and the employer's stat dec outlines the date on which the valid majority vote was conducted. We further submit, Commissioner, that the terms of the agreement ensure that it well and truly meets the requirements of the no disadvantage test in the legislation. So on that basis we submit that the agreement should be certified.

PN62

THE COMMISSIONER: Yes, thanks very much. The union has at least one member employed by the business? You may have said that and - - -

PN63

MR WAINWRIGHT: No, I didn't, I neglected that part. We do and we have coverage under our rules to represent the industrial interests.

PN64

THE COMMISSIONER: Yes, you are entitled to represent the industrial interests. The agreement was approved by a valid majority. There was only one person, yes. 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?

PN65

MR WAINWRIGHT: Yes, Commissioner.

PN66

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

PN67

MR WAINWRIGHT: Yes, Commissioner.

PN68

THE COMMISSIONER: Thank you very much. Then in relation to the CFMEU and Patrick O'Neill Building and Construction Industry Collective Bargaining Agreement 1999 to 2002 I am satisfied that all the relevant statutory requirements have been met particularly those with regard to section 170LJ and section 170LT and that is on the basis both of the written material before me and submissions from Mr Wainwright.

PN69

I note that as to the no disadvantage test, clause 11, as to classification structure and rates of pay, clauses 12, 13 and 14 as to allowances, clause 15 as to hours of work, clause 23 as to industry standards and clause 24 as to income and trauma protection. All represent a clear advantage over the award. There is a dispute resolution clause at clause 9 and at clause 6 the term of the agreement doesn't exceed three years. It is 1 December 1999 to 30 November 2002 and, accordingly, I do certify this agreement today, 29 August 2002.

AG2002/3935

Application by the Construction, Forestry,
Mining and Energy Union - Construction
and General Division, Victorian Branch
and Another

PN70

THE COMMISSIONER: This involves a section 170XF application, Mr Wainwright, so if you would deal with that first and I will do that and then move onto the certification.

PN71

MR WAINWRIGHT: Yes, Commissioner. In relation to the section 170XF application we submit that the correct award to be designated is the National Building and Construction Industry Award taking into account the work that is being done by the company which is primarily bricklaying.

PN72

THE COMMISSIONER: Yes. I note that you are also seeking designation to the extent that it is relevant to the National Joinery and Building Trades Products Award 1993, is that right?

PN73

MR WAINWRIGHT: Yes, Commissioner, I would amend that application just to seek that the NBCIA be the designated award.

PN74

THE COMMISSIONER: Only?

PN75

MR WAINWRIGHT: Yes.

PN76

THE COMMISSIONER: So I don't need to worry about the National Joinery and Building Trades Products Award - - -

PN77

MR WAINWRIGHT: No, I think that should have been struck out.

PN78

THE COMMISSIONER: Good, all right. Thanks for that. Anything more?

PN79

MR WAINWRIGHT: Not on the XF, Commissioner.

PN80

THE COMMISSIONER: Fine, thank you, very much. Then on the basis of the written material before me and the submissions from Mr Wainwright today I am satisfied that the appropriate award to be used for the purposes of deciding whether this agreement passes the no disadvantage test is the National Building and Construction Industry Award 2000 and I do make that determination today, 29 August 2002. We will prepare an amended certificate, thanks, Mr Wainwright, and then if you move straight onto the certification.

PN81

MR WAINWRIGHT: In regard to our section 170LJ application, Commissioner, we submit that the agreement meets the requirements of the Act. The agreement contains a dispute resolution procedure and it contains a nominal expiry date that is no longer than three years from the date on which the agreement is made. Commissioner, we say that the workforce had ready access or had copies of the agreement at least 14 days prior to the valid majority vote being conducted and when the vote was conducted a valid majority of the employees proved the agreement.

PN82

Commissioner, the agreement meets the statutory requirements in regard to no disadvantage to employees as against the award and in regard to the CFMEU we have at least one member at the company and we have the ability to cover the industrial interests of that member.

PN83

THE COMMISSIONER: Yes, good. Thank you very much, Mr Wainwright. In relation to the CFMEU and Power Plant Bricklaying Building and Construction Industry Collective Bargaining Agreement 1999-2002 I am satisfied that this meets all the relevant statutory requirements particularly those in section 170LJ and section 170LT, taking into account all the material before me. And I note that this does appear clearly to meet the no disadvantage test at section 170XA, particularly bearing in mind clause 11 as to classification structure and rates of pay, clauses 12, 13 and 14 as to allowances, clause 15 as to hours of work, clause 23 as to industry standards and clause 24 as to income and trauma protection.

PN84

I note there is an appropriate dispute resolution clause at clause 9. I note the term of the agreement doesn't exceed three years at clause 6, it is stated to be from 1 December 1999 to 30 November 2002 and, accordingly, I do certify this agreement today, 29 August 2002.

AG2002/3952

Application by the Construction, Forestry,
Mining and Energy Union - Construction
and General Division, Victorian Branch
and Another

PN85

THE COMMISSIONER: The next matter I have got a query on - if you would just explain it to me, Mr Wainwright. It has got an additional part to it. Part 2, Off-site Work Contents, which is added on at the end and I just wanted you to talk me through all of that and what an on-site/off-site agreement is and the inclusion - - -

PN86

MR WAINWRIGHT: Similar to the earlier - - -

PN87

THE COMMISSIONER: It is a two in one agreement, it would appear.

PN88

MR WAINWRIGHT: It is similar to the earlier matter, Commissioner, where the particular company has operations on building sites and they have an off-site factory operation. And they employ people to do tasks that changeover from the factory to the on-site. And generally this happens when people are making products and then installing them. So in this regard the intention of the parties has been to cover the work from the cradle to the grave, if you like, and the on-site is the general conditions that you would be familiar with and the off-site agreement is intended to then say: Well, the conditions aren't - for when you are working in the factory the conditions to meet aren't the on-site conditions, they are the off-site ones.

PN89

So the application clauses should make it clear and certainly it is the intention of the parties that the on-site conditions be met when people are actually on a building site and when they are not, when they are back in their factory, then they have the off-site agreement which you would be familiar with any factory or office situation.

PN90

THE COMMISSIONER: How do I satisfy myself - the last part of it is after the signature page. How do I satisfy myself that it has genuinely been signed and accepted by - well, indeed, by Mr Oliver for the union as well as for the company?

PN91

MR WAINWRIGHT: Well, the usual process is that there is a signature page on that as well. We think that the way it should be treated administratively is in the same form as an appendix - - -

PN92

THE COMMISSIONER: Look, I will tell you the thing. In fact, there is the original agreement. I have been looking at the copy. There is on the original agreement a signature on behalf of Mr Horner on behalf of the company. No signature on behalf of the union and it is just that that hasn't been replicated on the copies. Lachlan, that page would need to be included on all the copies so there is no doubt. And I am happy to accept a submission from you, Mr Wainwright. Mr Moodie was the witness of - - -

PN93

MR WAINWRIGHT: Mr Moodie would have witnessed signatures, he is a solicitor.

PN94

THE COMMISSIONER: Yes, Mr Moodie witnessed the signature of Mr Oliver, yes.

PN95

MR WAINWRIGHT: Yes.

PN96

THE COMMISSIONER: It is just some of these you have witnessed the signature on them. I am just wondering if I can accept the assurance from you here that Mr Oliver did accept this on behalf of the CFMEU.

PN97

MR WAINWRIGHT: Yes. His intention in signing the statutory declaration for the on-site/off-site would have been that both documents would be included in the package.

PN98

THE COMMISSIONER: Yes, the stat decs refer to the on-site/off-site agreement. And my query as to signature related to the fact that this signature page hasn't been picked up in the photocopying so that will need to be attended to. Well, that was the query and I am satisfied now you can run me through the rest of it.

PN99

MR WAINWRIGHT: Yes. Commissioner - - -

PN100

THE COMMISSIONER: Sorry, this is 170XF as well, so if you do 170XF also.

PN101

MR WAINWRIGHT: Well, in relation to the 170XF we would say that for the on-site provisions the award that should be designated is the NBCIA and for the off-site provisions the award that should be designated is the National Joinery and Building Trades Products Award. So the XF would be in the form of an "and/or" with both of those awards being designated.

PN102

THE COMMISSIONER: So I should make clear in the determination what applies to the on-site provisions and what applies to the off-site provisions?

PN103

MR WAINWRIGHT: Yes, Commissioner.

PN104

THE COMMISSIONER: Yes, good, thanks very much. Then, in relation to this agreement I am satisfied that the appropriate award to be used for the purpose of deciding whether the agreement passes the no disadvantage test is, as to the on-site provisions of the agreement, the National Building and Construction Industry Award 2000 and as to the off-site provisions of the agreement the National Joinery and Building Trades Products Award 1993 and I do so determine, today, 29 August 2002. I will issue an amended certificate in relation to that. And if you will move, then, onto the agreement itself, thanks.

PN105

MR WAINWRIGHT: Yes. And just to, I suppose, add, Commissioner. I think - I have got a vague memory that someone told me that the National Joinery Award has just been through either the simplification or the award-stripping procedures, whichever way you - - -

PN106

THE COMMISSIONER: Right. So it may have a new date.

PN107

MR WAINWRIGHT: I think it might be the 2002 now but I am not 100 per cent on that.

PN108

THE COMMISSIONER: Well, Lachlan, you can check on the date. In any event it will be whatever - that will be captured by whatever latest development has taken place, thanks.

PN109

MR WAINWRIGHT: In relation to our application for certification, Commissioner, we say that the agreement meets the statutory obligations. It contains a dispute resolution procedure. It contains a nominal expiry date that is no longer than three years from the date that the agreement has been made. Commissioner, the CFMEU has at least one member at the company and we are entitled to represent the industrial interests of that member. Commissioner, we say that the workforce had either copies of the agreement or had ready access to the agreement at least 14 days before the valid majority vote was held and indeed a valid majority did support the adoption of the agreement. And, Commissioner, we submit that the contents of the agreement mean that it well and truly meets the requirements of the no disadvantage test in the Act.

PN110

THE COMMISSIONER: Yes, thanks, very much. I noted that the place of work was stated to be Post Office Box 384, Lilydale. I was very worried that either - was that a very large post office box or was it actually some other place - - -

PN111

MR WAINWRIGHT: Or very small workers.

PN112

THE COMMISSIONER: Very small workers. You don't have any other information for me?

PN113

MR WAINWRIGHT: I do not have with me the site of the workshop.

PN114

THE COMMISSIONER: Yes. I looked through the statutory declarations, I couldn't see it. It is not a problem it is just that it is normal to put the actual place of work as opposed to a postal address.

PN115

MR WAINWRIGHT: Yes.

PN116

THE COMMISSIONER: But I don't think from the wording of the legislation that it is a problem.

PN117

MR WAINWRIGHT: I am afraid I can't assist you further, Commissioner.

PN118

THE COMMISSIONER: No, that is fine. Well, I am left with my query as to the nature of the workplace.

PN119

MR WAINWRIGHT: The size of the workforce, as it were.

PN120

THE COMMISSIONER: Yes, the size of the workforce. Well, in regard to the CFMEU and Dynamic Closures (Aust) Proprietary Limited Building and Construction Industry On-site/Off-site Collective Bargaining Agreement, taking into account both the written submissions and the submissions from Mr Wainwright and the clarifications from Mr Wainwright today that this does meet all the relevant statutory requirements, particularly those in section 170LJ and section 170LT. As to the no disadvantage test in section 170XA it clearly meets the relevant requirements.

PN121

I note particularly clause 11 as to classification structure and rates of pay, clauses 12, 13 and 14 as to allowances, clause 23 as to industry standards and clause 24 as to income and trauma protection. I note that there is an appropriate dispute resolution procedure at clause 9 and that the term of the agreement at clause 6 doesn't exceed three years and it is stated to be 1 December 1999 to 30 November 2002 and, accordingly, I do certify this agreement, today, 29 August 2002.

AG2002/3954

Application by Robertson Contracting
and Another

PN122

THE COMMISSIONER: Mr Wainwright?

PN123

MR WAINWRIGHT: Commissioner, I submit that the agreement meets the requirements of the Act. It contains a nominal expiry date that is no longer than three years from the date on which the agreement is made. It contains a required disputes resolution procedure. Commissioner, the CFMEU has at least one member working with the company, and we are entitled to cover the industrial interests of that member. The employer has outlined on their statutory declaration that the workforce either had copies of, or had ready access to the agreement at least 14 days before the vote on the agreement was held.

PN124

And that upon the vote being held, a valid majority were in support of adopting the agreement. And, Commissioner, the CFMEU submits that the terms of the agreement meet the requirements of the no disadvantage test in the legislation. And we seek that the agreement be certified.

PN125

THE COMMISSIONER: Yes. Thanks, Mr Wainwright. I note that this doesn't involve a constitutional corporation, and it is a Part XV Victorian matter. And on the basis of the written submissions, and the submissions from Mr Wainwright today, that the CFMEU and Robertson Contracting Building and Construction Industry Collective Bargaining Agreement 1999-2002 meets all the relevant statutory requirements, particularly those at clause - section 170LJ, and section 170LT. I note that the no disadvantage test at section 170XA is clearly complied with, particularly as regards clause 11, the classification structure and rates of pay; clauses 12, 13 and 14 as to allowances; clause 15 as to hours of work; clause 23 as to industry standards; and clause 24 as to income and trauma protection.

PN126

I note there is an appropriate dispute resolution procedure at clause 9, and that the term of the agreement doesn't exceed three years. At clause 6 it is provided to be 1 December 1999 to 30 November 2002. And accordingly, I do certify this agreement today, 29 August 2002.

AG2002/3955

Application by Mister Cabinets P/L and
Another

PN127

THE COMMISSIONER: Yes. The clauses in that one, yet again, haven't been signed by Mr Oliver. They have been signed by Mr DeBetta, on behalf of the company. So if you can offer me that assurance with it, that Mr Oliver accepted it when he signed in the main body of the agreement - - -

PN128

MR WAINWRIGHT: Yes, Commissioner.

PN129

THE COMMISSIONER: - - - Mr Wainwright. Thanks.

PN130

MR WAINWRIGHT: I can outline for you that certainly the CFMEUs intention to adopt both the on-site and the off-site provisions in the enterprise agreement.

PN131

THE COMMISSIONER: You witnessed his signature, in fact, on the - within the agreement itself.

PN132

MR WAINWRIGHT: Yes, Commissioner.

PN133

THE COMMISSIONER: Yes.

PN134

MR WAINWRIGHT: And, Commissioner, in relation to the application, we state that the agreement meets the requirements of the legislation. The agreement contains a disputes resolution procedure. It contains a nominal expiry date that is no longer than three years from the date on which the agreement was made. Commissioner, the CFMEU has at least one member working at the company, and we have the ability to cover the industrial interests of that member.

PN135

The workforce at the company had a copy of the agreement, or had ready access to the agreement at least 14 days before the valid majority vote was held, and a valid majority did, in fact, approve the adoption of the agreement. And, Commissioner, we submit that the contents of the agreement meet the requirements of the no disadvantage test. And we submit that the agreement should be certified.

PN136

THE COMMISSIONER: Yes. Thanks very much, Mr Wainwright. Then, in regard to the CFMEU and Mister Cabinets P/L Building and Construction Industry On-site/Off-site Collective Bargaining Agreement 1999-2002, I am satisfied that, on the basis of both the written submissions and the presentation from Mr Wainwright today that this does meet all the relevant statutory requirements, particularly those at section 170LJ, section 170LT. I note that it appears clearly to satisfy the no disadvantage test at section 170XA, bearing in mind clause 11 as to the classification structure and rates of pay; clauses 12, 13, and 14 as to allowances; clause 15 as to hours of work; clause 23 as to industry standards; and clause 24 as to income and trauma protection.

PN137

Its dispute resolution procedure at clause 9 is acceptable. The term of the agreement at clause 6 doesn't exceed three years. It is 1 December 1999 to 30 November 2002. And accordingly, I do certify this agreement today, 29 August 2002.

AG2002/3967

Application the Act by John Arnold
Shopfitters and Another

PN138

THE COMMISSIONER: This matter is six days out of time, Mr Wainwright. So if you would do the relevant applications, thanks.

PN139

MR WAINWRIGHT: Yes, Commissioner. The delay in lodging the agreement was due to a delay between the company finalising their paperwork and the union being able to put together our statutory declarations and have them signed. And in those circumstances, and taking into account the brief extension that is not required, but the brief extension that we are seeking, we would seek that you use your powers to extend the prescribed period under section 111(1)(r) of the Act.

PN140

THE COMMISSIONER: Yes. There was no material change in the workplace between the vote and the time of lodgment, I take it?

PN141

MR WAINWRIGHT: No. My instructions are that the workforce was unchanged - - -

PN142

THE COMMISSIONER: Yes.

PN143

MR WAINWRIGHT: - - - over those 27 days.

PN144

THE COMMISSIONER: Good. Thank you very much. Then, taking into account that information, and particularly that there was no material change in the workforce, I am satisfied that this is a matter appropriate for the Commission to exercise its discretion under section 111(1)(r), and I do so exercise the Commission's discretion to allow for this matter to be lodged on 29 July 2002. If you would just go straight on to the certification then. Thanks, Mr Wainwright.

PN145

MR WAINWRIGHT: Commissioner, in regards to our application, we state that the agreement meets the requirements of the Act. It contains a disputes resolution procedure. It contains a nominal expiry date that is no longer than three years from the date on which the agreement was made. Commissioner, we state that the contents of the agreement well and truly meet the requirements of the no disadvantage test. In relation to the workforce, Commissioner, the CFMEU have at least one member at the company, and we have the ability to cover the industrial interests of that member. The workforce was given a copy of the agreement, or they had ready access to the agreement at least 14 days before the valid majority vote was held. And a valid majority did in fact approve the adoption of the agreement. And we submit that the agreement should be certified.

PN146

THE COMMISSIONER: Good. Thank you very much, Mr Wainwright. Then, on the basis of both the written material and the presentation today from Mr Wainwright, I am satisfied that the CFMEU and John Arnold Shopfitters Building and Construction Industry Collective Bargaining Agreement 1999-2002 meets with the relevant statutory requirements, particularly those at section 170LJ and section 170LT. I note that it clearly meets the no disadvantage test at section 170XA, taking into account particularly clauses 11 as to classification structure and rates of pay; clauses 12, 13, and 14 as to allowances; clause 15 as to hours of work; clause 23 as to industry standards; and clause 24 as to income and trauma protection.

PN147

At clause 9 there is an appropriate dispute resolution clause, or at least an acceptable dispute resolution clause. Clause 6 provides for a term not exceeding three years. It is stated to be 1 December 1999 to 30 November 2002. And accordingly, I do certify this agreement today, 29 August 2002.

AG2002/3968

Application by Merolli Concrete and
Construction and Another

PN148

MR WAINWRIGHT: Thank you, Commissioner. In regard to this agreement, the CFMEU submits that the requirements of the Act have been met. The agreement contains a disputes resolution procedure. It contains a nominal expiry date that is no longer than three years from the date on which the agreement was made. And the terms of the agreement meet the no disadvantage test contained in the Act. Commissioner, the workforce had a copy of the agreement or had access to copies of the agreement at least 14 days before the valid majority vote was held, and the terms of the agreement were explained to them. And the workforce, in fact, by a valid majority, agreed to accept the document. Commissioner, the CFMEU has at least one member at the company, and we have the ability to cover the industrial interests of that member. And, on that basis, we seek that the agreement be certified.

PN149

THE COMMISSIONER: Thanks very much, Mr Wainwright. I am satisfied, on the basis both of the written material before me and Mr Wainwright's submissions today that the CFMEU and Merolli Concrete and Construction Building and Construction Industry Collective Bargaining Agreement 1999-2002 does meet all the relevant statutory requirements, particularly those at section 170LJ and section 170LT. I note that it clearly passes the no disadvantage test at section 170XA, bearing in mind clause 11 as to classification structure and rates of pay; clauses 12, 13 and 14 as to allowances; clause 15 as to hours of work; clause 23 as to industry standards; and clause 24 as to income and trauma protection.

PN150

Clause 9 contains an appropriate or acceptable dispute resolution clause. And clause 6 provides for a term not exceeding three years. It is stated to be 1 December 1999 to 30 November 2002. And accordingly, I do certify this agreement today, 29 August 2002. Thank you very much, Mr Wainwright, and I now adjourn these proceedings. Then if we order the transcript, so that it can go on each of the files. Thanks very much.

ADJOURNED INDEFINITELY [2.18pm]