AG2003/3149, Transcript of Proceedings [2003] AIRCTrans 2252 (12 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

AG2003/3149

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Timwin Constructions Pty Ltd re the Timwin
Constructions Pty Ltd Enterprise Agreement 2003-2006

SYDNEY

10.13 AM, THURSDAY, 22 MAY 2003

PN1

MR G. THOMAS: Commissioner, I appear for the company, Timwin Proprietary Limited. With me is MR D. TAYLOR and MR V. HO of the company. As the Commission pleases.

PN2

THE COMMISSIONER: Thank you, Mr Thomas.

PN3

MR S. MARSHALL: If the Commission pleases, my name is Marshall, initial S. I seek leave to appear on behalf of the Construction, Forestry, Mining and Energy Union, New South Wales branch. We have this morning - as of this morning, I am advised, a member employed by the company, and we seek leave to ask some questions about the modality and the substance of the agreement.

PN4

THE COMMISSIONER: Have you seen the agreement before this morning?

PN5

MR MARSHALL: No, I haven't, Commissioner. I am advised by our organiser, Phil Smith, that negotiations did commence with the union at some point in the recent past but the company decided to - - -

PN6

MR THOMAS: Commissioner, may I raise a point here which relates to Section 43 of the Workplace Relations Act and particularly to Section 43(2). Commissioner, that part of the Act relates to application for certification of agreement and it points out that:

PN7

In the case of an application under Division 2 or 3 of Part VIB of the Act, the Commission must ...(reads)... that was requested to represent a person as mentioned in Subsection 170LK(4).

PN8

And then points out:

PN9

Except as mentioned in paragraph (a), must not grant to leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement.

PN10

Now, I make the point, two points, in relation to this. I shall be dealing in my submissions to you on this matter with the question of a request on the part of employees to represent the employees in question in relation to the making of the agreement. Material before you will also deal with that question.

PN11

My submission to you is that you have material before you that, as at the date that a vote was taken to approve the agreement, there was no such request. Accordingly, I would submit to you that the provision of the Act that is applicable is that under Section 42 - 43(2)B, and that is that you must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement. Now, the parties to the agreement do not propose that the CFMEU be joined as a party, and I would submit to you that the CFMEU does not intend to be bound as a party to the agreement as approved by the employees by genuine majority. Accordingly, the Act is clear, and that is, you must not grant leave to intervene. As the Commission pleases.

PN12

THE COMMISSIONER: Thank you.

PN13

MR MARSHALL: Commissioner, given that we've only actually recruited this member this morning and he only speaks - he speaks Mandarin, we are in the process of organising a translator so we can have some discussions with him so that he can verify any statements that may be made about the modality and substance of the agreement, quite specifically, the provisions of LK4 as to whether the employees were notified in writing in Mandarin that they had the right to be represented by a union.

PN14

Now, as I've said, we have recruited this member this morning and we would seek an adjournment of this application so as we can have some time to, you know, verify any statements that might be made this morning about the modality or substance of the agreement. And, in the circumstances, that we sight the agreement and see that there are some benefits in the agreement, we may well seek to be bound by the agreement, and there is - it's not something that the union has been averse to in the past. It's something that we've done previously.

PN15

THE COMMISSIONER: Mr Thomas?

PN16

MR THOMAS: Commissioner, I hear what my colleague says. My instructions in this matter are clear, and that is there has been a process followed that's in accordance with Section 170LK of the Act. At the end of that process there has been an agreement submitted to employees of the company for their approval in accordance with provisions of the Act. That approval was given and it is a process that I will deal with in my submissions to you.

PN17

My further submission is that it is fairly well established case law that once there is a vote on an agreement and there has been a genuine majority of employees express their will at a meeting that it is then a matter for the parties to apply to this Tribunal for the approval thereby expressed to be given effect in the certified agreement. And that is what we are here about today.

PN18

I still say that, in terms of the circumstances that my colleague outlines, it is not open to the Commission to grant leave to intervene. There was notice given of the meeting to approval the agreement. I shall deal with matters associated with that in my submissions to you but, on the threshold question of leave to intervene, I put to you that the terms of the Act are clear. And that is, except where mentioned in paragraph A, the Commission must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement, and the parties to the agreement approved in accordance with processes laid down under the Act do not propose for an organisation to be bound by that agreement.

PN19

The circumstances that are laid out in section 43(2)(a) do not exist, and my colleague indicates fairly clearly that they can't have existed, because the member - - -

PN20

MR MARSHALL: I object, Commissioner. I did not indicate that.

PN21

MR THOMAS: - - - because the member commenced as a member of the CFMEU this morning, and that indication is on the record of the Commission. It is not open - I repeat, it is not open for the Commission, in these circumstances, to grant leave to intervene.

PN22

THE COMMISSIONER: Thank you, Mr Thomas.

PN23

MR MARSHALL: Commissioner, as I said, we have concerns about the application and genuineness of the company with regards to section 170LK(4), and as I said, we either seek leave to intervene in these proceedings now for discussions between the parties, or for the matter to be adjourned to allow us time to seek advice from our member as to the veracity of any claims that might be made about the modality or the substance of the agreement, which we also have yet to see.

PN24

THE COMMISSIONER: The matter before me, Mr Marshall, is whether or not the CFMEU can intervene in this matter; that's the threshold question as described by Mr Thomas. Section 43(2) - particularly (2)(b) - in these circumstances doesn't give the Commission any discretion; it's quite unambiguous. It's been tested on many occasions before. I have before me a statutory declaration, which I must take on face value. It's been duly signed. I will question Mr Thomas about the statements made in that declaration, but in terms - but in respect of whether the CFMEU can participate in this proceedings, I have to refuse leave for you to intervene in this matter. Leave is not granted. Mr Thomas?

PN25

MR THOMAS: Thank you, Commissioner.

PN26

THE COMMISSIONER: It's a public hearing. You're welcome to stay.

PN27

MR THOMAS: Commissioner, the application that is before you relates to an agreement reached between the company, Timwin Constructions Proprietary Limited, and employees of the company. The application is made under section 170LK of the Workplace Relations Act, and I shall be dealing, in my submissions to you, with compliance with statutory requirements of the Act relating to the making of this agreement. If I can deal first with the company, the employer is a constitutional corporation, and the details of its registration, as such, are set out in the statutory declarations that you have before you. It carries on its business in the commercial building and construction industry from premises in 20 Carlotta Street, Artarmon, and its business is as a builder in the small to medium end of the commercial building and construction industry.

PN28

Commissioner, the company employs - or employed at the time - make the ballot, a total of four employees, and those employees were of a non-English speaking background. If I may now deal with the process of making the agreement. On 15 April 2003, the employees were provided with both a final draft of the agreement and with a notice of a meeting to approve the agreement in question. That agreement took - that meeting took place on 29 April 2003.

PN29

If I may deal briefly with the notice given to employees, that notice complied with the general requirements of the Act, and in particular those of Section 170LK(4).

PN30

THE COMMISSIONER: Do you have a copy of that notice?

PN31

MR THOMAS: I don't have a copy of the notice, Commissioner. I do have representatives of the company here, and they can indicate the circumstances under which the notice was provided. Commissioner, I do make the point that at the time of making the agreement there was no request made by any of the employees in question to have a union represent them, and the ballot to approve the agreement proceeded on that basis. Commissioner, if I may turn now to the agreement itself, its parent award is the National Building and Construction Industry Award 2000.

PN32

The agreement has features incorporated into it that result in employees of the company receiving benefits higher than those they would otherwise receive under the parent award, and accordingly it may be said that the no-disadvantage requirement contained in the Act is met. In terms of other statutory requirements, Commissioner, I do indicate that clause 19 contains a dispute settling procedure that meets the requirement of the Act, including reference to the role of this Tribunal, and incorporation in the - terms of the agreement of all powers of the Commission.

PN33

It also contains a nominal expiry date in clause 4(e) and that nominal expiry date is three years after the date of certification. Commissioner, I do indicate that while I don't have a copy of the notice available, I do have available minutes - or details of a meeting that was held on 29 April, that was attended by company and employee representatives, or the employees of the company and management, and that meeting was attended by a Mandarin speaker - or two Mandarin speakers, so that it can be said that in terms of this agreement that its contents were explained to the employees in terms acceptable to them. Commissioner, both - - -

PN34

THE COMMISSIONER: Could I have a look at those minutes?

PN35

MR THOMAS: You may, Commissioner, yes. Commissioner, I have just sought some clarification from Mr Taylor. At the time of the ballot the company did only employ two people. The four people were - or the two additional people indicated on the statutory declaration were employed in the period after the - - -

PN36

THE COMMISSIONER: So the two new employees did not participate in the ballot?

PN37

MR THOMAS: No, Commissioner, they didn't.

PN38

THE COMMISSIONER: Mr Taylor, can I ask you a question?

PN39

MR TAYLOR: Yes.

PN40

THE COMMISSIONER: I have noticed here in the minutes that you are described as the facilitator, but you were marketing manager of the company?

PN41

MR TAYLOR: Yes.

PN42

THE COMMISSIONER: And Mr Ho, you were in attendance at the meeting.

PN43

MR HO: Yes.

PN44

THE COMMISSIONER: Perhaps, Mr Ho, you might tell me your version of the meeting. What took place on that day?

PN45

MR HO: That day there be - just have a meeting with my boss and he and other guys to - - -

PN46

THE COMMISSIONER: Yes, and were the details - - -

PN47

MR HO: - - - and explained all the details to me.

PN48

THE COMMISSIONER: Who explained them to you?

PN49

MR HO: Mr Taylor and my boss.

PN50

THE COMMISSIONER: Mr Taylor, yes. And there was Mr Lee who - well, he speaks Mandarin. He's the big boss of the company?

PN51

MR HO: Yes, he can speak the Mandarin and the English.

PN52

THE COMMISSIONER: And Mr Chuan, he was an interpreter?

PN53

MR HO: Yes.

PN54

THE COMMISSIONER: Yes. Did he help? Did the interpreter become involved?

PN55

MR HO: Oh, yes.

PN56

THE COMMISSIONER: What did he do?

PN57

MR HO: He just say interpreter all the details are from English to Mandarin and other .....

PN58

THE COMMISSIONER: Mr Taylor, when were these minutes - - -

PN59

MR TAYLOR: They were typed up that afternoon; I've got a handwritten copy in my - I didn't bring in my date book that I normally keep. I actually took the minutes off that basically.

PN60

THE COMMISSIONER: Mr Thomas.

PN61

MR THOMAS: Commissioner, I have in my submission dealt with issues that are set out in the statutory declarations that you have before you. You have also had the opportunity to gain clarification from representatives of the company in the Court today. It is my submission that on the basis of those statutory declarations and subsequent clarification, that the application before you meets both the statutory requirements of the Act, and I refer now to section 170LK of the Act and also to the rules of the Commission. Accordingly, Commissioner, might I submit to you that you now proceed to certify the agreement that you have before you, as the Commission pleases.

PN62

THE COMMISSIONER: Mr Thomas, what's the effect - what's your view about the effect on the new employees now of an agreement in which they had no involvement?

PN63

MR THOMAS: Commissioner, I suppose there are two issues here. I have already submitted to you that the agreement itself meets the no-disadvantage test so clearly there is as a result of the approval a system in place that does two things. Firstly, it provides for a set of conditions of employment that are relatively beneficial by comparison to the parent award, but from then on, the effect is much the same as, for example, a common rule situation where everybody gets a dollar a week over the award; in other words, those people having commenced as employees within the 21 day period, they are also in a position where they come under that scheme.

PN64

The provisions of section 170LK are that there was a genuine majority on the day that the meeting was held and accordingly, that expression of approval can be carried forward as an application to this Tribunal to certify the agreement in terms of the Act, and then the effect of it of course is that those employees become subject to the agreement as if the company had a policy of applying a - by common law as distinct from statute, a benefit to its employees over and above the award.

PN65

My submission is that their commencement within the period of 21 days doesn't in any way affect the force of the approval given. It would, of course, be a question for application of the TNT Logistics case after the 21 days not before.

PN66

THE COMMISSIONER: I was recently on a Full Bench which discussed this question about when does the agreement take effect in terms of a valid majority voting in favour or otherwise of the agreement. I'm going to have a 10 minute adjournment just to refresh my memory about that decision; because although I have no doubts about the process affecting those employees employed at the time of the vote, and I have no question about or I have no concerns about the no disadvantage test, I do want to take a few moments just to consider the impact upon employees since employed after the vote was taken.

PN67

MR THOMAS: Commissioner, I welcome your attention. If I may simply remark, and doubtless you've looked at the case law on this particular question much more recently than I last perused it - not that my understanding is that a vote by employees to approve an agreement carries with it great force. And, indeed, I'm just trying to - it's not Dezebo; it's another one of the - there's another decision - the name of which of escapes me - where a vote was taken and there was a subsequent concern raised by a union regarding process or benefit. And it was held that the vote once taken it was - it had significant force.

PN68

THE COMMISSIONER: All right. Well, I'll adjourn for 10 minutes and give some thought to what is before me. Thank you.

SHORT ADJOURNMENT [10.40am]

RESUMED [11.05am]

PN69

THE COMMISSIONER: Mr Thomas, I asked you earlier whether or not you had a copy of the notice given to the employees regarding the employer's intention to make an agreement.

PN70

MR THOMAS: Yes, Commissioner.

PN71

THE COMMISSIONER: You don't have that with you, but is that available? Can that be made available?

PN72

MR THOMAS: It is available, yes.

PN73

MR TAYLOR: We have copies in the office and we actually have them. I believe they're signed copies that they did get them at the time by the employees got them to sign them.

PN74

THE COMMISSIONER: Indicated the receipt of them, did they?

PN75

MR THOMAS: Commissioner, I'd also make the point that in relation to the persons or the person that was engaged after the agreement - I am now instructed it was only one not two - at the recruitment stage, I'm instructed that that person was provided with a copy of the agreement as approved by the then employees of the company and, indeed, had the contents of the agreement explained prior to employment.

PN76

THE COMMISSIONER: Yes, I have no difficulty with that unless it's the intention of the company to re-employ hundreds of people within a short period of time. I don't see that as being a barrier to certification. Although the statutory declaration of 5.3 does say that the total number of employees covered is four.

PN77

MR THOMAS: Yes, I realise that. I'm instructed now that it's in fact after - in that period of 21 days, there was only one person engaged. It was the intention of the company to engage two; but in the final analysis, only one was actually engaged as an employee.

PN78

THE COMMISSIONER: All right. The nature of the business and again this is not a relevant factor in my consideration as to whether I should certify it, but I'm just puzzled by 1.3:

PN79

Is a commercial building a construction on site and work on site incidental to this operation?

PN80

Can you explain what that means?

PN81

MR THOMAS: Well, it simply means that it's an on site agreement. It covers employees on building sites.

PN82

THE COMMISSIONER: Okay. Well, as I've indicated earlier, I have no difficulty with the terms of the agreement itself in respect of the no disadvantage test. Furthermore, I should state that I'm satisfied that the terms of the agreement were explained to the relevant employees at the time that the vote was taken. However, my only remaining concern is whether the notice given to the employees at the time covered all of the requirements set out in 5.6 of the statutory declaration. And I will indicate that subject to my receipt of that notice as early as practicable that I will certify the agreement subject to the recept and my satisfaction that the requirements of 5.6 were completely covered by the notice.

PN83

MR THOMAS: Commissioner, I believe that we would be able to arrange for that to be provided to your office by facsimile later today.

PN84

THE COMMISSIONER: All right. Well, with those qualifications, I will indicate that I am satisfied and I will certify the agreement. I will do so in chambers and without the requirement for another formal hearing and the parties will be advised accordingly. If there are any concerns arising from the notice, I will formally advise the parties of that.

PN85

MR THOMAS: Thank you, Commissioner. Commissioner, I do indicate at this stage of proceedings that the company does believe that there will be - sorry, I do indicate an impending industrial dispute over this matter. The company has already had two sites visited this morning, and there has also been telephone conversations between management of the company and Mr Andrew Ferguson. On that basis, the company does believe that it has a basis to notify the Commission under the provisions of section 99 of an impending industrial dispute. I now do this on the record and indicate to the Commission that I will be following that notice up by formal written notice to the Registry later today.

PN86

THE COMMISSIONER: All right. Thank you, Mr Thomas. These proceedings will stand adjourned.

ADJOURNED INDEFINITELY [11.10am]