AG2003/1250, Transcript of Proceedings [2003] AIRCTrans 1582 (29 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1250

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by McConnell Dowell Constructors
Proprietary Limited and Another for
certification of the Australian Workers
Union/McConnell Dowell Wallaroo Site
Specific Civil Construction Agreement
2003

ADELAIDE

3.32 PM, FRIDAY, 11 APRIL 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, can I have an appearance, please?

PN2

MR E. GRUE: May it please the Commission, I appear on behalf of the Australian Workers' Union, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: You are very lonely down there, Mr Grue. Mr Grue, I can advise you that I have received correspondence from Mr Kelly of Remington Mellier Collins by facsimile this afternoon. That correspondence follows a discussion that I had with Mr Kelly this morning. In it he advises that he is acting for McConnell Dowell and that McConnell Dowell wish to formally seek that this matter be dismissed in order for the parties to renegotiate the agreement with the AWU before proceeding further. He thanks me for whatever assistance I've provided in that regard. What is the AWU position on the matter?

PN4

MR GRUE: Your Honour, we have also been provided with a copy of the letter that has been sent to yourself and we can also advise that we have had contact with Mr Kelly today. It appears from reviewing the statutory declaration and the agreement that it appears that there are a number of concerns that Mr Kelly has in relation to this application. It appears that there are some what could possibly be fundamental flaws with the statutory declarations in that this agreement is supposed to be a Greenfield's agreement, however, it seems to state that there were a number of employees covered by the agreement and I'm not - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, but in addition to that the agreement has actually been sought pursuant to section 170LJ. It is a 170LJ application.

PN6

MR GRUE: Well, there's an even bigger flaw with the application as well then, your Honour. It does seem that this whole application has been wrong footed from the beginning and the union would welcome the opportunity to revisit this issue with the company and to get this matter correct.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Grue, I'm happy on the basis of the request from both the employer and the union to dismiss the matter. It might help that I clarify a couple of issues so that they may or may not become relevant in the event that a replacement proposal is submitted for certification. The first issue that I bring to your attention in that regard is that obviously the parties will need decide as to whether they pursue a section 170LJ application or a 170LL application and I shall leave that decision obviously to the parties to make depending on the status of the arrangements in place.

PN8

Secondly, can I advise that I have significant reservations to the extent over which the agreement could be made or certified by the Commission so that it was binding on the union, the employer and employees of subcontracted parties. It seems to me that type of provision envisages a multiple employer or multiple business agreement which would need to be pursued in accordance with the specific requirements of the Act.

PN9

I have fundamental reservations about the extent to which I would be able to certify an agreement which does not have in place a specific termination date. Equally I have major reservations about the extent to which the Commission could certify an agreement which requires, as clause 4.6 appears to do, that:

PN10

The employer party to this agreement will ensure that it is a term of any contract between the employer and each subcontractor that each subcontractor and its or their subcontractors shall guarantee that all employees of the respective contractor shall be paid equal to or in excess of the terms and conditions of the agreement.

PN11

I have two sets of problems in that regard. The first one is I need to go back to school to be able to work out which language it is written in and secondly, if I do understand it correctly it appears to be proposing actions which are quite beyond the scope of coverage of section 170LI in terms of an arrangement pertaining to the relationship between employers and employees covered by the agreement.

PN12

I have propose to ask the parties a question about the extent to which the proposed clause 8.2 appertaining to a union picnic day provided for a benefit that was conditional upon union membership for some particular type. I also propose to ask the parties to clarify the intent relative to the no further claims provision at clause 9. That might simply be that I am not able to appreciate what is being proposed, you don't need to explain it to me for this purpose, but I just note the inherent confusion in that regard.

PN13

I was going to suggest that the parties might have the wrong clause reference in 11.2 which references subclause 13.1. I was going to suggest that clause 13 and indeed 14 suffer from the same dilemma in that I suspect that they are not written in English and if they are written in English then I have to say they don't lend themselves to really understanding and finally I was going to ask the parties to clarify their intentions relevant to the operation of inclement weather provisions. I must admit also to some confusion as to whether the agreement, or how to decipher the agreement rates of pay.

PN14

So in the event that any of those comments were of any use to the parties I have now provided you with them. I did indicate to Mr Kelly and reiterate to you that should another application be made I would be very happy to try to facilitate an early hearing of the matter and in that regard you might care to contact my office when you have some better idea of the proposals. On the basis of the employer and union requests I will dismiss the application and close this particular file. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [3.41pm]