AG2003/2201, Transcript of Proceedings [2003] AIRCTrans 1757 (13 May 2003)

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 VT2434
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/2201, 2204-2207, 2209, 2210,
2213, 2224-2226, 2232-2240, 2242-2250

NELLAKIR PTY LTD AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005.

STONNINGTON BUILDING & DEVELOPMENT GROUP
PTY LTD AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BAIRES CONTRACTING PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

BRUNTON ENGINEERING & CONSTRUCTION PTY LTD
AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

WORKFORM CONSTRUCTIONS PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

F A STOW & CO CONSTRUCTIONS PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

R & J VAN POPPEL PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

PIROTTA SERVICES AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DACA CONSTRUCTIONS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SKILLED KITCHENS & CABINETS PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

RYDER SHOP & OFFICE FITTING PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

H H M CONSTRUCTIONS PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

BRUNO ENGINEERING PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

OCEANIA UNIVERSAL PAVING AUSTRALIA PTY LTD
AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

AARTEK PTY LTD AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

P.M. EXCAVATION & CONSTRUCTION PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

TRI-MONT CONCRETE CONSTRUCTION PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

IND WINDOW FABRICATIONS PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

MELBOURNE CONCRETE CONSTRUCTIONS PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

WEBB CONCRETORS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CRIPPS CONSTRUCTION & SHOPFITTING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

G.J.N. PTY LTD AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DERCON SECURITY FENCING PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ABS ALUMINIUM SHOPFRONTS PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SAFE SHOT AUSTRALIA PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

PARK ORCHARDS EXCAVATIONS & CONCRETE PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ELECTRIC CABLE DUCT SYSTEMS PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

RAYSET PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ALEXANDER INTERIORS PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

Applications under 170LJ of the Act
for certification of the above agreements

MELBOURNE

10.58 AM, TUESDAY, 29 APRIL 2003

PN1

MR G. FISHER: I am from the Master Builders Association representing those companies listed from 2201 to 2250.

PN2

THE DEPUTY PRESIDENT: Sorry, 2201?

PN3

MR FISHER: 2201 through to 2250.

PN4

THE DEPUTY PRESIDENT: All of them, is it?

PN5

MR FISHER: Yes.

PN6

THE DEPUTY PRESIDENT: Yes, I think you are appearing in all of them. Thank you Mr Fisher.

PN7

MR FISHER: Thank you, your Honour.

PN8

MR R. WAINWRIGHT: Your Honour, I have never been happy to see Gary Fisher. I am appearing for the Construction, Forestry, Mining and Energy Union in each of the matters listed.

PN9

THE DEPUTY PRESIDENT: You may take that personally, Mr Wainwright. Mr Fisher, I think you are the electronic applicant.

PN10

MR FISHER: I am, your Honour.

PN11

THE DEPUTY PRESIDENT: Very commendable in a technological sense.

PN12

MR FISHER: Starting to look electronic, too, I think.

PN13

THE DEPUTY PRESIDENT: I beg your pardon?

PN14

MR FISHER: Starting to look electronic, too, I think.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR FISHER: Electronic e-mail.

PN17

THE DEPUTY PRESIDENT: I think you have to hand up copies don't you?

PN18

MR FISHER: Yes, your Honour, I have got two box loads of them there, so, all the originals, the companies stat dec and the union's statutory declaration attached.

PN19

THE DEPUTY PRESIDENT: All right. Well you will provide them to my associate at the conclusion of the proceedings.

PN20

MR FISHER: Yes, I will.

PN21

THE DEPUTY PRESIDENT: Thank you for that. Is there anything else you want to take up, perhaps your lunch? Do you have any submissions to put or is that it?

PN22

MR FISHER: I do, your Honour. We are seeking certification of the agreements listed. Most importantly, your Honour, too, that we are seeking an extension of time for a number of those agreements are out of time. Most important from our point of view, your Honour, prior to the date of certification, I contact each individual company and notify them of the date of certification and also ask a key question in relation to the composition of the company in relation to numbers. Now they are saying that numbers in each of the agreements have not altered at all, your Honour, and they are all consistent with the stat dec. So we do seek certification. Also, your Honour, there was query in - under 2239 - - -

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR FISHER: - - - Melbourne Concrete Constructions. There was a typing error through the electronic e-mail, your Honour, where it stated that the employees voted the agreement on 15 February. That is not correct, your Honour, it is actually the 13th and it is listed within the stat dec. So the date they agreed to it and the date it was signed was the 13th and I have that agreement available.

PN25

THE DEPUTY PRESIDENT: So it was simply a typographic error, was it?

PN26

MR FISHER: Exactly, your Honour.

PN27

THE DEPUTY PRESIDENT: All right. Thank you for that.

PN28

MR FISHER: Thank you, your Honour.

PN29

THE DEPUTY PRESIDENT: Do you have any submissions to put on the test I am supposed to apply in relation to extension of time? As you would be aware, Mr Fisher, the two tests are, firstly, whether the composition of the workforce has changed or changed significantly and secondly, an explanation for the reasons - explanation of the reasons for the delay, in each case.

PN30

MR FISHER: In relation to, first of all - - -

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR FISHER: Can you just go back to the first one, again, your Honour.

PN33

THE DEPUTY PRESIDENT: Whether in each case, composition of the workforce has changed or changed substantially.

PN34

MR FISHER: No. Just to answer that, your Honour, as I indicated earlier, that I have contacted each individual company in relation to the date of certification, which they could have attended if they wished, and obviously there is a huge roll-up, and also the key question is if the actual numbers of employees have altered, in the stat dec, and they have all answered "no" your Honour, so.

PN35

THE DEPUTY PRESIDENT: All right. It is not just the numbers, it is composition - - -

PN36

MR FISHER: No, the composition is the same, your Honour, in each of - - -

PN37

THE DEPUTY PRESIDENT: The composition in each case is the same?

PN38

MR FISHER: Exactly right.

PN39

THE DEPUTY PRESIDENT: Well, look, a couple of these are quite substantially out of time. Matter 2206 is 35 days out of time, matter 2235 is 25 days out of time and matter 2250 is 32 days out of time.

PN40

MR FISHER: Yes, we do have a - - -

PN41

THE DEPUTY PRESIDENT: In relation to those, I will require a letter from you dealing with the issue of composition and an explanation as to the reasons for the delay. Sorry, and 2242 as well, is 36 days. So in relation to those four matters - I will give you the number again if you want - 2206, 35 days; 2235, 25 days; 2242, 36 days and 2250, 32 days. So in relation to those four matters, if you could provide me with a letter, say within seven days, which explains the situation regarding any change in the composition of the workforce, firstly, and secondly, explains why the delay occurred.

PN42

MR FISHER: If I may, your Honour, and certainly I will provide that, in relation to our members, probably 95 per cent of our members are only small and don't have the expertise or the manpower, the personnel to actually carry out the details of the stat dec in the agreement, they get quite flustered.

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR FISHER: We do have - and in some of those cases, too, your Honour, what occurs is that the company, by mistake, sent back the agreement without a stat dec or sent back the stat dec without the agreement and with that occasions, your Honour, I know it sounds slightly funny but it is not, where we do have members who actually fill out the guidance copy and send that back and sign it. So they are the major delays and the reasons why they are delayed, so - but I will certainly provide that letter, your Honour.

PN45

THE DEPUTY PRESIDENT: All right. Well, so that is your explanation for the reasons for the delay in the other matters, is it?

PN46

MR FISHER: That is correct, your Honour.

PN47

THE DEPUTY PRESIDENT: I understand. They are all small businesses, are they?

PN48

MR FISHER: That is exactly right.

PN49

THE DEPUTY PRESIDENT: Yes. Okay. All right, thank you for that. Mr Wainwright.

PN50

MR WAINWRIGHT: Your Honour, the CFMEU supports the submissions of the MBA in relation to the certification of the agreements and the applications for an extension of time. It is our submission that these applications meet the requirements of section 170LJ and section 170LT and we rely on our statutory declarations to that effect.

PN51

THE DEPUTY PRESIDENT: All right. Sorry, I have a few questions of Mr Fisher, again. Mr Fisher, you have provided a union statutory declaration in each case, have you?

PN52

MR FISHER: I have, your Honour.

PN53

THE DEPUTY PRESIDENT: Thank you. And if I could just take you to clause 7.4 of your statutory declaration. You say that clause 7(g) is a reduction, is it? Let me just look at 7(g):

PN54

No employee shall be disadvantaged by the introduction of this agreement.

PN55

Is that 7(g)?

PN56

MR FISHER: That is correct, your Honour.

PN57

THE DEPUTY PRESIDENT: I see. So, in effect, what you are saying in the statutory declarations is there has been no reduction.

PN58

MR FISHER: No reduction, your Honour, that is correct.

PN59

THE DEPUTY PRESIDENT: I misunderstood it for a minute. All right. Thank you very much. Unless there is anything else from any of the parties, on the basis of the statutory declarations provided, the submissions of the parties, today, I will certify the agreements as sought by the parties with the exception of those four agreements we have already identified. That certification, obviously, is subject to an examination of the union statutory declarations and copies of the agreement provided by Mr Fisher, today and to the extent necessary, I will waive any requirements of the rules regarding late lodgment of the union's statutory declaration, although I am not sure such waiver is required, nevertheless I will do that and I will expect to hear from Mr Fisher in relation to the four matters, a detailed and reliable outline of the position in relation to those four matters. Unless there is anything else, these matters stand adjourned. Thank you very much.

ADJOURNED INDEFINITELY [11.08am]