AG2002/4644, Transcript of Proceedings [2002] AIRCTrans 4537 (15 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT619

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2002/4644

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Construction, Forestry, Mining and Energy
Union - Construction and General Division,
Victorian Branch and Others for certification
of the John Holland Pty Ltd, Southern Region,
Plant Workshop and Equipment Store, Enterprise
Agreement 2000-2002

MELBOURNE

2.45 PM, THURSDAY, 31 OCTOBER 2002

PN1

THE DEPUTY PRESIDENT: The matter is 4644 and it is one of yours, Mr Wainwright.

PN2

MR WAINWRIGHT: Your Honour, is that the John Holland's agreement?

PN3

THE DEPUTY PRESIDENT: Yes, it is. John Holland Pty Limited, Southern Region, Plant Work Shop and Equipment Store, Enterprise Agreement 2000 - 2002. Is that right?

PN4

MR WAINWRIGHT: Yes, your Honour. This is somewhat of a complex matter so perhaps if I make some explanatory submissions and we were certainly hoping that John Holland would attend today.

PN5

Negotiations occurred to cover particular employees of John Holland at the work shop. The CFMEU and the AMWU represented the employees. A document was negotiated and was voted on by the employees and was proved. The document was then signed by the parties being CFMEU, the AMWU, and John Holland.

PN6

However, the matter then fell into abeyance. There was a change of managerial staff for John Holland covering the work shop, and the new manager did not action the necessary paperwork to have the application lodged in the Commission.

PN7

Our organiser followed up on the matter and after various enquiries we came to the conclusion that John Holland were not going to do anything in relation to having this agreement certified. We have lodged documents with the Commission to seek the certification and our motivation is to have a forum in which to discuss what has occurred. So what has been lodged with the Commission is a statutory declaration for the CFMEU, a signed agreement and an application.

PN8

The Commission doesn't have a statutory declaration from the company or, as yet, from the Metals Workers' Union and I have been on a period of leave, your Honour, and it was certainly my intention to discuss this matter with the Metal Workers' Union and I am confident that they will prepare their statutory declaration.

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR WAINWRIGHT: We think that the situation is similar to the decision issued by Senior Deputy President Lacy in Securitas in that the company has, after having negotiated the agreement, been bound by the agreement yet they have taken no steps to have that agreement certified. We are keen to have it certified and we see no reason why it should not be certified but I understand certainly on the basis of what is before you I am certainly not submitting that you should certify it today.

PN11

What we are seeking today is perhaps to schedule some discussions with the company over the agreement and to have a report back before you, your Honour, to see where the parties are at.

PN12

THE DEPUTY PRESIDENT: All right. Well I will re=list it for what - a month or something like that? Two weeks - what time do you need?

PN13

MR WAINWRIGHT: Perhaps two weeks would meet our needs.

PN14

THE DEPUTY PRESIDENT: About two weeks then.

PN15

MR WAINWRIGHT: Yes, your Honour.

PN16

THE DEPUTY PRESIDENT: With a next round of agreements. Of course you will need information on whether the composition of the work force has changed in the five months that have passed otherwise I will unlikely to extend time as sought by you.

PN17

MR WAINWRIGHT: Yes, your Honour, we understand we have got a serious issue with an extension of time.

PN18

THE DEPUTY PRESIDENT: Yes. That is fine.

PN19

MR WAINWRIGHT: But in the position we are in we couldn't see what else we could do.

PN20

THE DEPUTY PRESIDENT: No, I am not being critical, I am just - - -

PN21

MR WAINWRIGHT: The other thing I am not clear about, your Honour is the - - -

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MR WAINWRIGHT: - - - whether or not the company is being notified of today's hearing and whether or not they have contacted the Commission in any way.

PN24

THE DEPUTY PRESIDENT: I am aware of that. I assume they have been properly notified. I will certainly check that and make sure. What I will do is, if they haven't been properly notified my associate will contact you and let you know that. Otherwise assume that they have been properly notified as is the practice in these matters.

PN25

MR WAINWRIGHT: Yes, it is just that this is somewhat unusual compared to other certifications, so - - -

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR WAINWRIGHT: - - - I am just wondering how it has all kind of happened.

PN28

THE DEPUTY PRESIDENT: Yes, well I will make sure that if they haven't been properly notified you are aware of that this afternoon.

PN29

MR WAINWRIGHT: Thank you.

PN30

THE DEPUTY PRESIDENT: Or first thing in the morning. Thank you very much. All right, I will adjourn this matter for about two weeks. I will send out a listing. I don't have my calendar here at the moment. If there is any difficulty we can alter the times, Mr Wainwright. Yes.

PN31

MR WAINWRIGHT: Your Honour, there is a person outside. I might just check if they are actually intending to appear in this matter.

PN32

THE DEPUTY PRESIDENT: All right.

PN33

MR WAINWRIGHT: If I could seek your indulgence for a second.

PN34

THE DEPUTY PRESIDENT: Yes. You are excused for a minute. Do you wish to appear in this matter.

PN35

MR G. FANNING: I seek leave to appear for John Holland. With me is MR J. WALLER, the General Manager of John Holland, civil sector group.

PN36

THE DEPUTY PRESIDENT: Thank you very much. All right. Well, you have seen the correspondence from Mr Wainwright in this matter, have you?

PN37

MR FANNING: Yes, sir.

PN38

THE DEPUTY PRESIDENT: Mr Wainwright, I think, asked for an adjournment for two weeks and I am agreeable to that. He also wants some discussions with you in relation to this matter. We don't have a statutory declaration from you as required by the Australian Industrial Relations Commission rules which do require lodgment of such a declaration and secondly there is also the issue of the composition of the work force.

PN39

This matter is substantially out of time - five months, and I need a submission as you would be aware on the issue of the composition of the work force. Now it doesn't have to be today because I am proposing to adjourn that to enable you and Mr Wainwright to have discussions or do you wish to pursue the matter now, Mr Wainwright?

PN40

MR WAINWRIGHT: Well, I think perhaps what might be useful, your Honour, is because the company have been, in our view, recalcitrant in following up on this matter perhaps it would be useful if they outlined what their attitude is towards this agreement.

PN41

MR FANNING: I am quite happy to do that. If it please the Commission, this agreement was negotiated prior to May of this year, going back some previous six months I am informed. Since that time there have been a radical restructure of the John Holland group. New managers have been appointed, some have departed and accordingly there has been a pretty wide review of the way in which they do their business, both in the building sector, civil sector and the rail sector.

PN42

The application for this agreement, the subject of today's application I should say, is signed by State Secretary of - or the then State Secretary of the AMWU - the current State Secretary of the CFMEU and Mr Bob Bennetto who is still with the John Holland group. As you have correctly pointed out, sir, the matter is out of time and there isn't appropriate documentation with it.

PN43

The John Holland group wishes to state that it does not wish to proceed with this agreement. It finds that this agreement was negotiated by a person within the group and recommended accordingly to the group. That person is no longer with the company. We see it as inappropriate for a number of reasons. The content of the agreement - two clauses alone - wage increase and the use of contractors, as far as we are concerned is not appropriate and I chose my words carefully there. And quite clearly we are quite happy to negotiate an appropriate enterprise agreement for that function within the company's operations with the appropriate union which, on the basis of the classifications, would appear to be and without asking any of the employees concerned because that is not appropriate the AMWU.

PN44

We do have agreements with the AMWU in other areas of the business and as we do with the CFMEU and there is no problem in enterprising that. We are quite happy to enter into negotiations with that immediately. But, as for this agreement, Mr Deputy President, the company wishes to have no part of it, if it please the Commission.

PN45

THE DEPUTY PRESIDENT: Mr Wainwright, have you anything you want to add to this?

PN46

MR WAINWRIGHT: Yes, well the general thrust of my submission hasn't changed and I think there is obviously a need for discussion between the parties and hopefully for an adjournment and report back. But I think the relevant points are that Mr Fanning hasn't stood up and said that the nature of the single part of the business has changed.

PN47

I think he has confirmed that that is still there. And he hasn't put to you that the agreement was improperly entered into by the company. He simply said it was entered into by the managers who were in place at the time and duly signed by Mr Bennetto who still in a very senior position in the company.

PN48

So, as far as the legal approach is concerned we see no bar against certification based on what the company has put today, but we do have a difficulty. This matter has been dragging on for some time and the best way to conclude that difficulty is for the parties to get together and discuss it.

PN49

THE DEPUTY PRESIDENT: All right. Well, on that basis then I propose to adjourn the matter for two weeks and I will advise the parties of the time as soon as I am able and is there anything else anybody wants to add? Is that a suitable course of action?

PN50

MR FANNING: We are in your hands.

PN51

THE DEPUTY PRESIDENT: Thank you very much. All right. I will adjourn this matter for two weeks. I think that finishes what we have to do today. Is there anything else? No. On that basis, thank you very much for coming and these matters stand adjourned.

ADJOURNED INDEFINITELY [2.50pm]