AG2003/2329, Transcript of Proceedings [2003] AIRCTrans 2043 (28 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 2650
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/2329, 2330, 2331

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

EASTSIDE CRANE HIRE AND CFMEU MOBILE
CRANE HIRING INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

G.P.L. CONSTRUCTIONS PTY LTD AND
CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

Applications under section 170LJ of
the Act by the Construction, Forestry,
Mining and Energy Union and Others
for certification of the above
agreements

MELBOURNE

10.30AM, TUESDAY, 13 MAY 2003

PN1

MR G. FISHER: Your Honour, I am from Master Builders and represent G.P.L. Constructions, 2331. If the Commission pleases.

PN2

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

PN3

THE DEPUTY PRESIDENT: Thank you very much. Right. Who would like to speak? These are all submitted electronically, are they not?

PN4

MR FISHER: Your Honour, I am representing G.P.L. Constructions. Yes, that was electronic e-mail. It is way out of time, your Honour, but there are reasons for that on the basis that it was e-mailed to the Commission on 17 February. It got lost out with the fairies somewhere so we had to - - -

PN5

THE DEPUTY PRESIDENT: Got lost out of the what?

PN6

MR FISHER: Got lost with the fairies somewhere, your Honour.

PN7

THE DEPUTY PRESIDENT: The fairies. Sorry, I - - -

PN8

MR FISHER: We had to re e-mail it again.

PN9

THE DEPUTY PRESIDENT: It is not a word that is used much in the court.

PN10

MR FISHER: What I have done, your Honour, obviously we would be seeking an extension of time on this particular agreement. If I may, your Honour, hand up a statutory declaration to that effect, giving reasons why the agreement was out of time.

PN11

THE DEPUTY PRESIDENT: Thank you. All right. Thank you for that. Do you have anything else to say?

PN12

MR FISHER: Only in relation to one point in regards the statutory declaration, your Honour. At point six of the agreement it has been not listed in relation to the agreement being handed out to each employee and copies made available and 40 days period allowed. What we would seek, your Honour, that we rely on the union's statutory declaration that does cover that particular point. If the Commission pleases.

PN13

THE DEPUTY PRESIDENT: Is there a union statutory declaration?

PN14

MR FISHER: There is, your Honour.

PN15

THE DEPUTY PRESIDENT: And you have got that with you?

PN16

MR FISHER: I do have it.

PN17

THE DEPUTY PRESIDENT: Could you provide that now. Please. I will just have a look at it if I could. Thank you. Well, the union's statutory declaration in 6.1(i) doesn't specify the steps taken by the employer to give all employees employed at a particular time whose employment is or will be subject to the agreement a reasonable opportunity to decide whether they want to give approval to the agreement pursuant to the requirements of section 170LE(C) so there seems to be a deficiency in both of the statutory declarations on that point I am afraid.

PN18

MR FISHER: Your Honour, what we would do is - or the employers will actually fill that 6.1 under the employer's statutory declaration in relation to copies of the agreements made available, copies handed out to each employee. The employer on this occasion, your Honour, has simply overlooked that - - -

PN19

THE DEPUTY PRESIDENT: No, I am sure that is the case. So just let me get this straight. You will file a statutory declaration dealing with that point, will you?

PN20

MR FISHER: I will, your Honour.

PN21

THE DEPUTY PRESIDENT: Within a week, or?

PN22

MR FISHER: Certainly.

PN23

THE DEPUTY PRESIDENT: Whatever time. I am just asking you, is a week suitable as a time or time period?

PN24

MR FISHER: That is fine. I could even probably drop it in by tomorrow morning, your Honour, if necessary.

PN25

THE DEPUTY PRESIDENT: All right. Terrific. Well, thank you for that. Mr Wainwright.

PN26

MR WAINWRIGHT: Well, your Honour, I need to deal with the other two agreements that have been listed in relation to this lot.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR WAINWRIGHT: Erin Ceilings and Eastside Crane Services. Your Honour, I think those are two of the first electronic lodgements by the CFMEU.

PN29

THE DEPUTY PRESIDENT: Yes.

PN30

MR WAINWRIGHT: The protocol that the CFMEU entered into - well, first of all I will begin by saying, your Honour, that it is my submission that the applications meet the requirements of the Act as varied to allow for electronic agreement lodgements. And we seek that the agreements be certified. In relation to the protocol that was entered into with the Commission, your Honour, in relation to our electronic lodgements, we have scanned the documents. So different to electronic lodgements from other parties that deal with only the agreements without the signatures, the documents that the Commission should have before it do have the signatures there for your perusal on both the statutory declarations - - -

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR WAINWRIGHT: - - - and the agreement. It was - - -

PN33

THE DEPUTY PRESIDENT: That is interesting.

PN34

MR WAINWRIGHT: The process that was entered into, your Honour, was that because the Commission had the opportunity to peruse those signatures the CFMEU would not be required to hand up the documents. We do have the original documentation in the office. It is not easily accessible because of space storage reasons but regardless should there be a difficulty with any one of these applications, and certainly with notification or with an adjournment, we can supply the Commission with the original documents.

PN35

THE DEPUTY PRESIDENT: Yes.

PN36

MR WAINWRIGHT: For these two matters today, I do not have the original documents. But because of the processes that have been entered into and the arrangements between ourselves and the Commission as we see it, we seek to have the agreements certified nonetheless.

PN37

THE DEPUTY PRESIDENT: Yes. Now the requirement of signature, I think, exists in form R28 made under rule 48 of the Industrial Relations Commission rules but doesn't exist anywhere else, does it?

PN38

MR WAINWRIGHT: Not to my knowledge, Commissioner.

PN39

THE DEPUTY PRESIDENT: I think that is correct.

PN40

MR WAINWRIGHT: But in relation to the requirements of the Act and the rules - - -

PN41

THE DEPUTY PRESIDENT: Yes, here it is.

PN42

An original of the written agreement signed by the parties to the agreement -

PN43

Yes. Right. So. Are you saying there is a specific rule that has varied that or shall I waive the requirements of that rule?

PN44

MR WAINWRIGHT: What I am saying is, that in relation to the project to - - -

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR WAINWRIGHT: - - - have electronic lodgements it has been envisaged that the Commission would waive - - -

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR WAINWRIGHT: - - - the requirements to meet the details of the rules to allow for that project to go forward. So in relation to this application that is what I am seeking. That you do. To these two applications.

PN49

THE DEPUTY PRESIDENT: Yes, I am just trying to remember whether we actually varied the rules to deal with that issue or whether a waive of the rules is required. Just bear with me for a moment. Do you have anything else to say on the other issues? The other - - -

PN50

MR WAINWRIGHT: Mr Fisher's application?

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR WAINWRIGHT: Simply, that we support his submissions to you and it is the submission of the CFMEU that the totality of the statutory declarations before you in relation to the answer in 6.1 from the CFMEU and the answer in 6.1(i) from the employer would allow you to be satisfied that the requirements of the Act have been met.

PN53

THE DEPUTY PRESIDENT: Right. Nothing else. All right. First of all, to the extent necessary, I waive requirements of the rules regarding a signed original copy of agreements being provided to the Commission, in particular, the fact that we have on file a scanned copy of a signed original. Secondly, on the basis of the statutory declaration filed and submissions put, I will extend time as sought in matter 2331. Thirdly, in relation to matter 2331, I will await provision of a statutory declaration to be provided by Mr Fisher dealing with the unanswered parts of part 6 of the standard statutory declaration form.

PN54

And fourthly, subject to that being received in a satisfactory form in matter 2331, I will certify all agreements as sought by the parties and a certificate of that will be issued as soon as possible. Thank you very much. You are excused.

ADJOURNED INDEFINITELY [10.41am]