AG2003/3574, Transcript of Proceedings [2003] AIRCTrans 1826 (16 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

AG2003/3574, AG2003/3569, AG2003/3567,
AG2003/3562, AG2003/3561, AG2003/3558,
AG2003/3557, AG2003/3556, AG2003/3553,
AG2003/3552, AG2003/3551, AG2003/3550,
AG2003/3547, AG2003/3544, AG2003/3542,
AG2003/3540, AG2003/3539, AG2003/3409,
AG2003/3408, AG2003/3407, AG2003/3406,
AG2003/3405, AG2003/3402, AG2003/3401,
AG2003/3398, AG2003/3397, AG2003/3395

APPLICATIONS FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act by
D & C Services (Qld) Pty Ltd and Communications,
Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia for
certification of the D & C Services (Qld) Pty Ltd and
CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Christopher West Contracting Pty Ltd and Communications,
Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia for
certification of the Christopher West Contracting Pty Ltd
and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Beavis and Bartels Pty Ltd and Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia for certification of the
Beavis and Bartels Pty Ltd and CEPU Plumbing Division
Certified Agreement 2003-2005

Application under section 170LJ of the Act by
P.H.P. Contractors Pty Ltd and Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the
P.H.P. Contractors Pty Ltd and CEPU Plumbing Division
Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Alston Plumbing Pty Ltd and Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the Alston Plumbing
Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Rosenlund Plumbing Pty Ltd and Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the Rosenlund Plumbing Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
GTS Plumbing Qld Pty Ltd and Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the GTS Plumbing
Qld Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Ed Ahern Plumbing (Gold Coast) Pty Ltd and Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia for certification of the
Ed Ahern Plumbing (Gold Coast) Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Parramatta Commercial Services Pty Ltd and Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia for certification of the
Parramatta Commercial Services Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Helensvale Trades Service Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the
Helensvale Trades Service Pty Ltd and CEPU Plumbing Division
Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Havendeen Roofing Contractors Pty Ltd and Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia for certification of the
Havendeen Roofing Contractors Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Tayside Commercial Plumbing Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the
Tayside Commercial Plumbing Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Visco Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia for certification of the Porter Plumbing Gold Coast
and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Queensland Industrial Cladding (Aust) Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia for certification of the
Queensland Industrial Cladding (Aust) Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
GPB Plumbco Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the GPB Plumbco Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Albrad Pty Ltd and Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union
of Australia for certification of the Marc Albert Plumbing and
CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
D and F Plumbing Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the Norris Group and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Nardia Plumbing Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the Nardia Plumbing Pty Ltd and CEPU
Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Tapworth and Booth Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the Tapworth and Booth Pty Ltd and CEPU
Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
B and S Saunders Plumbing Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the
B and S Saunders Plumbing Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Flowtech Hydraulics Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the Fairfield Plumbing and
CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Kerr Plumbing Pty Ltd and Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the Kerr Plumbing Pty Ltd and
CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Pipe Dream Plumbing and Hydraulic Service Pty Ltd and Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia for
certification of the Pipe Dream Plumbing and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Tacoma Plumbing and Drainage Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia for certification of the
Tacoma Plumbing and Drainage Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
Triple M Mechanical Services (Qld) Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia for certification of the
Triple M Mechanical Services (Qld) Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
A.E. Smith Pty Ltd and Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia for certification of the A E Smith (SEQ) Pty Ltd and CEPU
Plumbing Division Certified Agreement 2003-2005

Application under section 170LJ of the Act by
James L Williams Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union
of Australia for certification of the James L Williams (Qld Branch)
Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005

BRISBANE

10.17 AM, THURSDAY, 1 MAY 2003

PN1

THE COMMISSIONER: Could we have the appearances, thank you.

PN2

MR J. GULLESTRUP: If the Commission pleases, my name is Gullestrup, initial J, and I appear for the CEPU Plumbing Division, Queensland Branch.

PN3

THE COMMISSIONER: Thanks, Mr Gullestrup.

PN4

MR W. SMITH: If it pleases the Commission, Smith, initial W, representing the Master Plumbers Association of Queensland and the Air Conditioning and Mechanical Contractors Association Queensland and those of its members affected by today's agreements, Commissioner. I'm also joined by MR DEAN CAMERON of the Masters Plumbers Association of Queensland. Commissioner, there are a number of matters, not all of which I am representing. Should I put on transcript those specific companies' agreements that I'm representing?

PN5

THE COMMISSIONER: Yes.

PN6

MR SMITH: Those companies that I'm representing at A.E. Smith, South East Queensland; James L. Williams, Queensland Branch; Pipe Dream Plumbing; Tacoma Plumbing and Drainage; Triple M Mechanical Services; Kerr Plumbing; B and S Saunders; Fairfield Plumbing; Nardia Plumbing; Tapworth and Booth; Parramatta Commercial Services; Ed Ahern Plumbing; GTS Plumbing; Rosenlund Plumbing; Alston Plumbing; Flint Plumbing and Drainage; the Norris Group; Marc Albert Plumbing; GPB Plumbco; Queensland Industrial Cladding Australia; Porter Plumbing Gold Coast; Tayside Commercial Plumbing; Havendeen Roofing Contractors; Helensvale Trade Services; PHP Contractors; Beavis and Bartels; Christopher West Contracting and finally, Commissioner, D and C Services, Queensland. Thank you, Commissioner.

PN7

THE COMMISSIONER: Thank you, Mr Smith. Yes, Mr Gullestrup.

PN8

MR GULLESTRUP: I presume that we're dealing with all the matters joined together.

PN9

THE COMMISSIONER: Yes.

PN10

MR GULLESTRUP: Commissioner, the union made the application under section 170LJ of the Act. We would submit that, based on the statutory declarations, the agreements do meet the requirements of the Act for certification. They certainly do pass the no-disadvantage test. They have been approved by a valid majority of the employees, and the various other requirements of the Act have been met.

PN11

There is a matter I would like to draw your attention to with regard to the statutory declarations in that there has been a typographical error in the preparation of the statutory declarations in that the agreement actually terminates on 31 October 2005, not on 30 September 2005. Actually, 30 September was the termination of the previous agreements, and I apologise for that mistake.

PN12

THE COMMISSIONER: When will the amended statutory declarations be provided to the Commission?

PN13

MR GULLESTRUP: Commissioner, your associate did discuss that matter with us just before this hearing. I understand there was a message left for me, but unfortunately I didn't get it before I got here. We would ask to see whether there is a bit of leniency or flexibility in the requirement to actually get an amended stat dec in that it would require a re-signing of 50 stat decs. The Master Plumbers, which is principally the ones which have been responsible for having the stat decs signed by the employers, would, I think, start crying if you asked them to do that because it's been a weeks worth of full work to round up contractors to get them together with a Justice of the Peace during their normal work commitments.

PN14

What we submit to you is it's a clerical error. It's nothing more, nothing less than a clerical error, in that a number of steps have been made throughout this process to ensure that all employees are totally aware of the expiry date. Employers have sent out information; we have sent out information. All of it has consistently talked about 31 October being the termination date of the agreement. 30 September is, as I said, nothing more but a clerical error, and we hope that maybe that could be corrected as such. I'm certainly happy to take whatever steps to inform employers about the mistake, but I am submitting to you that actually going through the process of having every agreement re-signed, or every stat dec re-signed, is a massive logistic exercise which is likely to take several weeks.

PN15

THE COMMISSIONER: Well, is it significant to the employees and employers or not that the agreements operate then from a particular date?

PN16

MR GULLESTRUP: Commissioner, this agreement here has in some ways broken new ground in that it's been reached fairly amicably between the union and the employers in negotiations, and actually part of this agreement is that we have agreed not to pursue certain things before dates in the future. So the expiry date as such is to some degree academic in that there's agreements reached about how we progress in the next agreement already.

PN17

THE COMMISSIONER: No, I was more concerned with the commencement date rather than the expiry date.

PN18

MR GULLESTRUP: The commencement date, Commissioner, is significant in that the agreement requires payment of wages back paid to 8 February. There is already a significant amount of disquiet on sites because certain employers have already paid the back pay and certain employers have chose to exercise the right to say, well, we want the agreement certified before we actually go through the process of adjusting rates of pay.

PN19

THE COMMISSIONER: Perhaps that might provide them with some motivation to sign the statutory declarations quickly.

PN20

MR GULLESTRUP: Well, what I am more worried about, Commissioner, is that in a volatile situation, if employees aren't getting the back pay, that we actually start having problems that we don't need to have. We have reached this agreement, as I said, not entirely without angry words but to a large degree in a cooperative manner, and we shouldn't be blind to what else is happening in the industry. The industry have gone through a period of a lot of turmoil, and I've got no doubt that the Commission have been involved in a lot of it. It's one of those things. There's an agreement reached. You know, if at all possible, let sleeping dogs lie, but we'll have to do what we have to do to meet the requirements of the Act, of course.

PN21

THE COMMISSIONER: Yes.

PN22

MR GULLESTRUP: If the Commission pleases.

PN23

THE COMMISSIONER: Before we finish: appendix H, Board of Reference.

PN24

MR GULLESTRUP: Yes.

PN25

THE COMMISSIONER: Para 2, line 2, talks about independent chairpersons to be agreed by the union and the associations.

PN26

MR GULLESTRUP: Yes.

PN27

THE COMMISSIONER: What happens if you don't agree?

PN28

MR GULLESTRUP: Well, there's a process put in place here that within a month of certification of this agreement - and we are already, you know, a long way down the track of having reached agreement on that - a number of independent persons will be nominated and agreed to and - - -

PN29

THE COMMISSIONER: Yes, I see that. So does that mean once they're agreed that's it, does it?

PN30

MR GULLESTRUP: Well, if we fail to agree, they are the persons. I would say probably most of the types of these agreements we would have. I don't see that there would be a problem in the employer association and the union agreeing on this Commission being the independent person appointed.

PN31

THE COMMISSIONER: I am certainly not looking to get more work, I can assure you, Mr Gullestrup.

PN32

MR GULLESTRUP: No, no.

PN33

THE COMMISSIONER: But I am simply concerned that parties have a provision that they underline saying "agreed." I read whereby, you know, you say you will be going through and finding people. My concern is - despite that you have hopefully this agreed list in place within one month, as it says in the agreement, my point is that then, when it comes to individual boards, I want to clearly understand then that providing it is one of those people that's on the agreed list is then meeting what the requirements of paragraph 2 are in terms of to be agreed. To me, on the face of it, it seems to read more that every time we have a board we have got to agree who the chairperson is going to be, and whilst you have got an agreed list, I could foresee the possibility of arguments about that. But perhaps you have such a good relationship with the employers that you can resolve these things.

PN34

MR GULLESTRUP: Certainly as great as it's ever been. Commissioner, with respect, I think if you go to paragraph 3 - - -

PN35

THE COMMISSIONER: Yes, I have been through paragraph - I have read the whole lot, Mr Gullestrup.

PN36

MR GULLESTRUP: I don't dispute that. In that clause, I also submit to you that it says that the list will be finalised within one month of the certification of the agreement and such list may be jointly reviewed and amended, but never as part of a specific dispute. So, in other words, what we have agreed to is that, once that list is there, that list is there, and that will be amended by agreement but not as part of a dispute. So once a dispute arises - - -

PN37

THE COMMISSIONER: So if the list has five people on it, A, B, C, D and E, and in a particular dispute you want A and the employers want C, who resolves that if you have some disagreement on it? How is it resolved?

PN38

MR GULLESTRUP: Well, I don't think there's scope in the agreement for either of us to disagree with either A or C, so, you know, it might be a matter whether A or C is available or to draw straws if need be. The point of it is that, once the list is there, neither of us has got the ability to disagree with any person on that list for a specific dispute. But it might be that there's a specific problem that both parties would agree that one person is better at resolving due to knowledge of the issue, etcetera.

PN39

THE COMMISSIONER: Oh, yes, I can understand the rationale for that. Do you agree with all that, Mr Smith?

PN40

MR SMITH: Commissioner, in relation to the Board of Reference, there was an additional document which you would have to the statutory declaration, some words that were provided to us in relation to that Board of Reference by Freehills to try and clarify the answers in relation to the Commission's powers and also the establishment of the Board of Reference. Commissioner, that document should have been attached to each of the statutory declarations as a single page at the back.

PN41

THE COMMISSIONER: I don't have any such - I just have the agreement with the appendices. I don't know whether there's any other documents that - - -

PN42

MR SMITH: Commissioner, could I - - -

PN43

THE COMMISSIONER: - - - I'm supposed to have.

PN44

MR SMITH: Commissioner, could I pass up an example of this document? This is from Alston Plumbing's agreement and the associated statutory declaration and the single page that was attached to it.

PN45

THE COMMISSIONER: Well, as long as you understand that if the Commission establishes a board of reference, whilst it might be in accordance with this statutory declaration cognisant of appendix H, you should understand that wouldn't bind the Commission. The Commission is bound by the Act, the regulations and rules.

PN46

MR SMITH: Commissioner, as I stated, the intention was to get some legal opinion on the wording of the board of reference appendix, especially in relation to the answer to the two questions in the statutory declaration. Those words, Commissioner, were provided to us by Freehills and have been accepted by both parties as governing the operation of the board of reference.

PN47

THE COMMISSIONER: Yes. I understand that and that's fine, but I just make the point that if the Commission appoints it, whilst it would be cognisant of it and this document says that - but I just don't want anyone to be under any misunderstanding to think that the Commission may not appoint a board in accordance with what you want. Now, you can go down the path of agreeing the board and the chairperson if that's what you want to do. That's probably a preferable course. But as long as you understand that wouldn't bind the Commission to the - - -

PN48

MR SMITH: Correct, Commissioner.

PN49

THE COMMISSIONER: - - - composition. Do you understand that?

PN50

MR SMITH: Yes, Commissioner.

PN51

THE COMMISSIONER: Do you understand that all right, Mr Gullestrup?

PN52

MR GULLESTRUP: We are certainly aware of that, Commissioner, and what the agreement provides is two clear avenues of establishing a board of reference. We are aware that if you go down the road of asking the Commission to establish a board of reference, then it would be done under section 131 of the Act.

PN53

THE COMMISSIONER: Yes. Thank you. Yes, Mr Smith?

PN54

MR SMITH: Thank you, Commissioner. Our submission would support that of the union, Commissioner. Commissioner, in relation to the statutory declaration and the issue of the date being different - the 30 September date. Commissioner, in terms of the process that's lead us to here, there's been a fairly strong consultative process between the association representing members from both Master Plumbers and the AMCA. That consultative process comprised very regular meetings with the contractors affected by these agreements and there would be no misunderstanding, Commissioner, that the agreement was to cease on 31 October.

PN55

Supporting that, Commissioner, is the fact that there was a communication process known as the EBA Telegraph that commenced in about September last year and continued up until early April. That EBA Telegraph was a regular - in many cases weekly publication - to contractors within the Master Plumbers' Association and not as frequent, but similar communications within the AMCA that kept people abreast of what was happening in terms of the negotiation.

PN56

Now, Commissioner, there is documentation that shows that date clearly as being the end date that was being negotiated that was, as I said, distributed, you know, quite widely amongst the membership of the organisations. Commissioner, so in terms of employer understanding of what the outcome was, the 31 October outcome would be what they would understand.

PN57

Commissioner, in terms of the commencement date, if there were substitute statutory declarations required, I believe that within 24 hours I could give the union an undertaking that in relation to the rates of pay, that Mr Gullestrup was concerned about, we could certainly come back to him with an undertaking to commence those rates of pay if the only issue outstanding was to provide to the Commission the amended and corrected statutory declaration. But I support Mr Gullestrup's comments about there would obviously need to be some time allowed for that - - -

PN58

THE COMMISSIONER: How much time?

PN59

MR SMITH: Probably by the end of next week, Commissioner.

PN60

THE COMMISSIONER: Yes. Okay. I appreciate the parties understand that from time to time these agreements get challenged by dissatisfied persons and if there is some deficiency in the paperwork, you just leave the whole agreement up for review on appeal. That's why it's necessary that they be completed properly. The Commission will approve the agreements, but only if certain conditions are met. If these conditions are not met, I want the parties to be under no misapprehension that the agreements will then not be approved unless the correct amended expiry date information is contained in the statutory declarations and those statutory declarations are provided to the Commission by 12 May.

PN61

Those that are in by 12 May, the Commission would otherwise be satisfied with respect to the explanation undertaking, statutory declarations and submissions would satisfy the requirements of the Act and rules and those agreements will operate from 1 May 2003 and remain in force until 31 October 2005. For any agreements where the statutory declarations are not obtained and obtained in a true and correct format by 12 May, then those matters will be re-listed at the Commission's convenience to deal with them.

PN62

MR GULLESTRUP: Commissioner?

PN63

THE COMMISSIONER: Yes.

PN64

MR GULLESTRUP: I'm just desperately trying to avoid the mess if at all possible - and this hasn't been discussed with employers. The Commission have got ability to correct an agreement, not necessarily the stat dec. Would it be an opportunity for the Commission in those cases to correct the agreement's expiry date to be in line with the statutory declarations? As I said before, as far as the union is concerned, the expiry date is probably of less importance than this enormous task of getting all these statutory declarations certified again.

PN65

THE COMMISSIONER: I can assure you, Mr Gullestrup, the Commission doesn't have the power to do that. If the parties wish to put an amended agreement back to the employees for a vote, that's a matter for yourselves. But a significant matter like this - you're saying to employees that it doesn't really matter what they vote on or what's signed on their behalf, you know; people will do as they wish. There's no way the Commission could make a substantive change of that nature, but, as I say, if you wish you can put them back for another vote and decide whatever date you wish. But on the basis of what Mr Smith has indicated, I can't see any reason why those amended statutory declarations can't be provided in 11 days time. Is there anything further?

PN66

MR SMITH: No, thank you, Commissioner.

PN67

THE COMMISSIONER: If not, those matters stand adjourned.

ADJOURNED INDEFINITELY [10.17am]