AG2003/2763, Transcript of Proceedings [2003] AIRCTrans 2327 (13 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/2763

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Pascale Construction Pty Limited for
certification of the Pascale Construction
Pty Limited Enterprise Agreement 2003

ADELAIDE

11.15 AM, WEDNESDAY, 28 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances please?

PN2

MR M.J. HOWARD: I appear for Pascale Construction Pty Ltd. Appearing with me is MR F. PASCALE on behalf of the company and MR M. BURDETT and MS G. BANNISTER on behalf of the employees of the company.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard.

PN4

MR M. HARRISON: I appear with MR M. GAVA for the requesting union in pursuant to its request of the Deputy Industrial Registrar of 2 May, a copy of which I think you might have before you.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Harrison, I take it you seek leave to intervene in these proceedings?

PN6

MR HARRISON: Yes, and in support I tender the requests of 10 members of the union employed by this company. Needless to say, we seek to intervene or oppose this certification.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Has this document you have provided me with been provided to Mr Howard?

PN8

MR HARRISON: Not that I know of.

PN9

THE SENIOR DEPUTY PRESIDENT: Perhaps before I receive it, I should arrange for it to be shown to Mr Howard unless you have got a copy.

PN10

MR HARRISON: I've got a copy.

PN11

THE SENIOR DEPUTY PRESIDENT: The document you are handing to me does not automatically seem to correspond with the document that has been handed to Mr Howard. So I might ask that Mr Howard be shown the document that I have.

PN12

MR HARRISON: Well, I undertake to provide my friend with a copy of that. Sorry, I don't have extra copies.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Howard, have you completed your perusal of the document that Mr Harrison has provided to me?

PN14

MR HOWARD: I have read the document, yes, thank you, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: I might then collect that document back from you on the basis that Mr Harrison has undertaken to provide you with a copy.

PN16

MR HOWARD: Yes, thank you.

EXHIBIT #CFMEU1 DOCUMENT

PN17

THE SENIOR DEPUTY PRESIDENT: To be absolutely clear, the document that I now have appears to have grown somewhat but it commences with a facsimile dated 2 May 2003 from Mr O'Malley to the Deputy Industrial Registrar. It proceeds to then contain three pages which include signatures of various persons. Each of those pages is addressed to the Deputy Industrial Registrar. Mr Howard, on the basis of this documentation, do you oppose the CFMEU's application to intervene in these proceedings?

PN18

MR HOWARD: Obviously they have signatures of the employees in respect to that particular matter. My understanding is that from the company that the whole procedure was done according to the Act. These people were, as I understand, all employees at the time that the agreement was made and had known that the agreement was made as they were parties to the negotiations, so in consulting with the two representatives.

PN19

THE SENIOR DEPUTY PRESIDENT: So can I take it from that, that whilst you might argue with some of the things that Mr Harrison might say later this morning, you are not opposing his appearance this morning?

PN20

MR HOWARD: I will not oppose his appearance this morning because I think he has provided enough documentation for a legitimate intervention in the matter, if the Commission pleases.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Howard, do you want to introduce the agreement that is proposed for certification?

PN22

MR HOWARD: I will, your Honour. If it please the Commission, this is an application pursuant to section 170LK of the Workplace Relations Act 1996, requesting the Commission to certify an agreement reached between Pascale Construction Pty Ltd and the employees of the company. The company is a constitutional corporation, ACN008073676 and is a respondent to the National Building and Construction Industry Award 2000.

PN23

The requirements of the Workplace Relations Act 1996 have been satisfied in that the agreement was made in accordance with division 2 and that a valid majority of persons employed at the time, this employment would be subject to the agreement have generally made the agreement. The employees were provided with a copy of the agreement and had the terms of the agreement explained where necessary by the company.

PN24

The agreement includes procedures for preventing and settling disputes between the company and the employees whose employment is subject to the agreement about matters arising under the agreement. That is to be found at clause 2.2 on page 4 of the document which sets out a formal procedure as to - sorry, clause 2.4 on page 5 of the document which sets out a formal procedure for any disputes or grievances that may arise between the employees and the company itself.

PN25

The company did not coerce to attempt to coerce any of the employees concerned from having the union represent them in discussions with the company. The agreement specifies a date as a minimal expiry date of the agreement and the date is not more than 3 years after the date of which the agreement comes into operation. That is to be found at clause 1.7, commencement date of agreement duration which:

PN26

This agreement will come into effect on and from the date of certification and will continue in force until 30 June 2004 unless terminated beforehand in accordance with section 170MG of the Workplace Relations Act 1996.

PN27

The agreement passes the no disadvantage test, as set up in the Workplace Relations Act, Part VIB, that is does not disadvantage employees in relation to the terms and conditions of their employment. The first matter I will draw the Commission's attention to is the matter of redundancy and that is to be found on page 11 of the document in respect to employer contributions to the Building Industry and Redundancy Scheme Trust Fund which is an amount of $50 per week.

PN28

That is a compensation for redundancy. That is far in excess of what would possibly be an amount paid in if you stuck strictly to the award provisions which would be reduced on a sliding scale and has a maximum of 8 weeks payment in this point in time whereas the contributions to the BIRST fund have been proceeding from the time the employee is employed until the time the employee is terminated or terminates themself and any moneys in the fund would be payable on the basis that would be greater than the award situation.

PN29

In respect of 3.10.4 it provides for the income maintenance insurance, the company providing order to employees with a sick and accident income maintenance insurance and the maximum cover at this point in time is 600 per week gross. In respect to the wage rates on page 30 of the document at clause 4.1.1.1, the rates of pay have been paid to the employees as far back as 16 August 2002. Those rates at the present time are for 16 February 2003 at $17.39 for a bricklayer.

PN30

The current rate for a bricklayer under the award is $15.42 per hour and if you look at the labour at 16.03 as at 16 February 2003, the current rate for a bricklayer is $14.13 per hour. So the rates of pay expressed in the award are considerably more than those - sorry, in the agreement, are considerably more than those payable under the award even if you allow for the current $17 a week wage increase which has gone through the Commission earlier this week.

PN31

That would still not bring the award rates up to or any where near the rates set out in this agreement. The clause 4 at page 14 of the document, clause 4.2, there is a consolidated disability allowance of $1 per hour and on and from 1 July 2003, that would proceed to $1.50 per hour and that is compensation for all disabilities associated to work and is paid in lieu of all special rates and allowances prescribed by clause 25, "Special rates" and clause 24.4, "Multi-storey allowance" for the National Building and Construction Award 2000 and the allowances prescribed by the industry site allowance agreement which is an unregistered agreement.

PN32

I understand that $1 per hour is being paid at this present point of time. Other monetary amount I will draw the Commission's attention to is on page 25 of the document at clause 7.1, "Fares allowance". The in current daily fares allowance in the National Building and Construction Industry Award is $12.40 a day. Currently the rate is $15 per day under the agreement and from 1 July 2003 will proceed to $17.50 per day which would be some $5.10 per day in excess of that provided under the award.

PN33

The last monetary amount in the agreement that I wish to draw the Commission's attention to is on page 27 of the document at clause 7.5.3.2 which is an allowance of $420 per week of 7 days or $60 per day in the case of broken parts of a week, the current rate for living away from home under the National Building and Construction Industry Award is an amount of $44.10 per day which is some $15.90 per day less than provided for in this agreement.

PN34

Now, they are basically all the monetary amounts prescribed in this agreement, your Honour, and as can be seen they are far in excess of any of the monetary amounts prescribed under the National Building and Construction Industry Award for each of the relative matters. The other part of the document itself does go down to some minor alterations in the flexibility to Workplace Relations in terms of the taking of annual leave.

PN35

At 6.2.4 on page 18 of the document where the employees would normally have the industry close down period, should they not have that due to the work being required to be performed over the Christmas period, they would be taking one 2-week period with the balance of the annual leave taken in ..... days and over periods as agreed between the company and the employee concerned. The annual leave has a period of 12 months in which to be taken whereas the award prescribes a period of 6 months which is somewhat impractical in the context of the Building Construction Industry and the fact that a number of employees do like to take their annual leave coinciding with the school holidays.

PN36

The other matter would go to the meal break which allows for a meal break staggered arrangement with respect to the meal break at 5.4.2 and that allows the meal break to be altered and commenced no later than 1.30 at ordinary time rates being paid after 1.30 pm, double time rates would come in until such time as the meal break was taken. Now, there are some other flexibilities which vary from the award such as the notification of being sick. You notify on the day itself rather than when you come back to work the next day and notify the employer that you have been off sick.

PN37

Other than that, that basically is the foundation of the agreement and we would say that that complete package does not go anywhere near below the standards set by the Commission in respect to which may be contained in the National Building and Construction Award 2000. I'm not sure if the Commission wished to ask me any questions in relation to the document.

PN38

THE SENIOR DEPUTY PRESIDENT: Mr Howard, I have a number of questions in relation to the document that reflect my normal process of wanting to clarify the shared intentions of the parties. But before I get to those, I think it appropriate that we deal, first of all, with the process whereby the agreement was reached and, secondly, that I identify the concerns that Mr Harrison may or may not have. Now, have I been provided with a copy of the - with a statutory declaration on the part of an employee or employee representatives in this matter?

PN39

MR HOWARD: Not that I'm aware. I think the only statutory declaration is that that has been provided by the company but the process of having the employee representatives here today was to be able to answer any questions about the procedures that pertain to the signing of this particular document as to whether the agreement was reached on behalf of all the employees concerned.

PN40

THE SENIOR DEPUTY PRESIDENT: Now, what I propose to do is to ask you a number of questions. I'm sorry, Mr Harrison?

PN41

MR HARRISON: I seek, with respect, a copy of the employer statutory declaration.

PN42

THE SENIOR DEPUTY PRESIDENT: Mr Howard, do you have a copy of that statutory declaration?

PN43

MR HOWARD: I do have a copy of my own here, your Honour, as I was unaware that the union was appearing in this matter. If I had have known that, I would have copied - made a copy available to Mr Harrison but he is at liberty to read the one that I have currently here.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. Well look, if you would be so good as to loan your copy to Mr Harrison then, I take it, just as Mr Harrison's going to provide you with a copy of CFMEU1, I would ask that you provide him with a copy of that statutory declaration.

PN45

MR HOWARD: I certainly would, your Honour. As I said, had I known previously that they were going to appear, I would have actually had one for Mr Harrison today.

PN46

THE SENIOR DEPUTY PRESIDENT: Mr Howard, can I ask you to confirm the steps that the employer took to ensure that every person employed at the time whose employment will be subject to the agreement had at least 14 days notice in writing of the intention to make that agreement?

PN47

MR HOWARD: That is correct, your Honour. In actual fact, the process of negotiating this agreement has taken quite a long journey. The original notices for the purpose of entering into an enterprise agreement was issued to all the employees concerned on 1 October 2002. Now, that is - - -

PN48

THE SENIOR DEPUTY PRESIDENT: Can I ask Mr Burdett or Mr Banister to confirm that that reflects their understanding?

PN49

MR BURDETT: That is true, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: Mr Howard, can I ask you to confirm to me that at or before the time when that notice was given to employees, that is, the notice of the intention to make the agreement, the employer took steps to ensure that every such employee either had or had ready access to the agreement in writing?

PN51

MR HOWARD: Well, that is my understanding, your Honour. That is my understanding of this matter.

PN52

THE SENIOR DEPUTY PRESIDENT: Once again, can I ask Mr Burdett and Mr Banister to confirm that this reflects their understanding?

PN53

MR BURDETT: Yes, it does, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Can I ask you to confirm, Mr Howard, that the notice provided to employees stated that any person whose employment would be subject to the agreement who was a member of an organisation of employees, and that organisation is entitled to represent the employee, that persons or employees' industrial interests in relation to work that was to be subject to the agreement might request that organisation to represent them in meeting and conferring with the employer about the agreement?

PN55

MR HOWARD: That is correct, your Honour. I can read one of the many I have in front of me, and I'm sure some of these are people who have the unions here to represent them today but the letter said, and I will read the one that was issued to Mr Burdett because it is on the top. It is dated 1 October 2002. Under the heading, "Pascale Constructions", in bold letters, "Enterprise Bargaining":

PN56

Dear Malcolm Burdett, the company is prepared to enter into an enterprise agreement with all the relevant employees. If you are a member of an employee association, you may request that organisation to represent you in meeting and conferring with the company about the agreement. A copy of the proposed agreement is available for your perusal. Please call Fred Pascale to arrange. After 14 days from today's date, it is proposed that we enter into discussions regarding the proposed agreement. Yours faithfully, F. Pascale, Director.

PN57

MR HARRISON: Sorry, what was the date of that?

PN58

MR HOWARD: 1 October, 2002.

PN59

THE SENIOR DEPUTY PRESIDENT: Can I ask Mr Burdett and Mr Banister to confirm that they received those or similar advices?

PN60

MR BANISTER: Yes, Commissioner.

PN61

MR HOWARD: If the Commission likes, I can proceed to hand to peruse all the ones that were actually handed out at that particular time.

PN62

THE SENIOR DEPUTY PRESIDENT: That is a - - -

PN63

MR HOWARD: There's all the individual ones.

PN64

THE SENIOR DEPUTY PRESIDENT: - - - matter entirely of your choice, Mr Howard.

PN65

MR HOWARD: All the individual ones are here, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: I'm an avid reader. The question of whether you choose to give me something is entirely a matter of your choice. Do you seek to tender that document?

PN67

MR HOWARD: That is my only copy, your Honour, and I do seek - - -

PN68

MR HARRISON: I wonder if I could just - - -

PN69

MR HOWARD: I do seek to tender that and I will make copies available to my friend.

PN70

MR HARRISON: Thank you.

EXHIBIT #P1 BUNDLE OF DOCUMENTS WHICH APPEAR TO BE IDENTICALLY WORDED ADVISING EMPLOYEES OF THE INTENTION TO ENTER INTO AN AGREEMENT AND THE OPPORTUNITY TO BE REPRESENTED IN NEGOTIATIONS TO THAT EFFECT

PN71

THE SENIOR DEPUTY PRESIDENT: At the conclusion of the hearing, Mr Howard, I shall make a copy of that document available to you, and ask that you provide a copy of it to Mr Harrison.

PN72

MR HOWARD: I will, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Can the employer confirm for me as to whether it is aware that at any time after 1 October 2002 a request was received from either a person or an organisation of employees such that they sought that an organisation be involved in those negotiations?

PN74

MR HARRISON: We concede that we were informed.

PN75

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, you can concede on whichever issues you wish to concede later. I am simply seeking to satisfy myself as to the criteria specified in section 170LK of the Act. Mr Pascale?

PN76

MR PASCALE: I beg your pardon, your Honour? Sorry for the interruption. Would you please rephrase the question?

PN77

THE SENIOR DEPUTY PRESIDENT: Did you receive, at any stage, a request from either an employee or an employee organisation that reflected your invitation to employees to be represented. That is, did the union or an employee ask that a union be involved?

PN78

MR PASCALE: The union, yes.

PN79

THE SENIOR DEPUTY PRESIDENT: So the union made a request to be involved?

PN80

MR PASCALE: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: When was that request made, Mr Pascale?

PN82

MR PASCALE: That request was made, I can't remember the exact dates, but it was probably about a month and a half ago. My understanding is that my - the union did not make any direct intention of involvement through me but I am aware that there were numerous discussions regarding this agreement and its negotiation process at the time between my employees and the union. I was aware that such discussions took place during the negotiation period. Now, Malcolm and Graham would be able to give you further details on that but they didn't actually approach me as far as saying they were asking to be - intervene or to be represented but I know that my employees have asked them for advice, and I know that there were numerous discussions.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes.

PN84

MR PASCALE: So whether that constitutes an intervention, I'm not sure what that - - -

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Pascale. Mr Howard, can you confirm to me that the agreement was reached on 16 April 2003?

PN86

MR HOWARD: That is my understanding, and that is in the statutory declaration of Mr Pascale.

PN87

THE SENIOR DEPUTY PRESIDENT: Mr Pascale, can you advise me of whether you received a request from the union to be involved in discussions prior to 16 April?

PN88

MR PASCALE: No, I did not.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you. Did any employee ask you prior to 16 April to ensure that the union was involved in the discussions.

PN90

MR PASCALE: No.

PN91

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Banister and Mr Burdett, does that reflect your understanding of the situation? I'm sorry, you will need to say yes or no.

PN92

MR BURDETT: Yes, your Honour.

PN93

MR BANISTER: Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: Finally, Mr Howard, to what extent was the agreement proposed in October 2002 changed at any stage prior to it being endorsed by the employees on 16 April 2003?

PN95

MR HOWARD: Well, my understanding, your Honour, is that the document issued on 10 October came from a previous negotiation that did take place. An agreement was signed prior to that but was never lodged with the Commission because it was out of time. Then the process was recommenced starting in 2002. 2002 was when the notices were issued. My understanding is that the document dated 10 February 2003, which is currently before the Commission, was the final document that was agreed to by the employees. I'm not sure what the changes were, if any, because I wasn't privy to any of the discussions that took place.

PN96

THE SENIOR DEPUTY PRESIDENT: Can I refer you to section 170LK(8) which states that:

PN97

If a proposed agreement is varied for any reason after the notice is given, the steps in subsections (2), (3), (5) and (7) must again be taken in relation to the proposed agreement as varied.

PN98

Subsection (2) requires:

PN99

The provision of the 14 days notice of the intention to make the agreement.

PN100

Subsection (3) requires that:

PN101

The employer take reasonable steps to ensure that every person has or has ready access to the proposed agreement in writing.

PN102

Subsection (5) relates to the possibility that:

PN103

If an organisation is requested to represent such a person, the employer meet with that organisation.

PN104

Subsection (7) requires that:

PN105

Before the agreement is made, the employer must take reasonable steps to ensure that the terms of the agreement are explained to all persons employed at the time whose employment would be subject to the agreement.

PN106

MR HOWARD: My understanding in respect to this matter is that the changes that were made were changes that were asked for by the employees, and that document was prepared again and resubmitted for the purposes of the employees again.

PN107

THE SENIOR DEPUTY PRESIDENT: The document, in its changed form was provided to employees at least 14 days prior to 16 April?

PN108

MR HOWARD: That is my understanding. My understanding is the document was altered on 10 February 2003 and the employees would have had that document within the next 2 or 3 days following the changes that were made and I couldn't answer the question as to what changes were made.

PN109

THE SENIOR DEPUTY PRESIDENT: Mr Burdett and Mr Bannister, can you confirm that that reflects your understanding?

PN110

MR BANNISTER: Yes.

PN111

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Harrison, what is your position relative to this agreement?

PN112

MR HARRISON: Sir, we oppose it. The initial point we take is that the majority meeting on 16 April was even if it took place validly was rescinded by the 10 majority members, 10 out of 16, who withdrew their votes, if indeed they did vote. So what you are met with is an agreement that does not meet the requirements of the Act on that basis alone, but I will come back to that. On or about 16 October 2002, Mr Gava, who is with me here, held discussions with the - - -

PN113

THE SENIOR DEPUTY PRESIDENT: 16 October 2002 or 2003?

PN114

MR HARRISON: 2002. He was presented with a draft agreement which was inviting the union and it's members and his company - I tender those to the Commission.

PN115

THE SENIOR DEPUTY PRESIDENT: Is a copy of that available to Mr Howard?

PN116

MR HARRISON: I don't have a copy but I will see that he gets it.

PN117

THE SENIOR DEPUTY PRESIDENT: I hope someone is taking note of all the promises in relation to provision of documentation.

PN118

MR HARRISON: I think my friend and I meet most of our promises.

PN119

THE SENIOR DEPUTY PRESIDENT: Provide this document to Mr Howard so that he could have a look at it for the next few minutes. I shall mark it though as CFMEU2.

EXHIBIT #CFMEU2 DRAFT ENTERPRISE BARGAINING AGREEMENT ENTITLED THE PASCALE CONSTRUCTION PROPRIETARY LIMITED ENTERPRISE AGREEMENT 2002

PN120

MR HARRISON: For the record I point out the writing at the top is not that of Mr Pascale, it is of an organisers note of discussions.

PN121

THE SENIOR DEPUTY PRESIDENT: I also note that the footer at the bottom of the page is dated 16 October 2002, which is causing me some degree of difficulty in that if I understood you correctly, you are indicating this document was provided to employees on 16 April 2002?

PN122

MR HARRISON: That was certainly brought to the attention of the employees by the union.

PN123

THE SENIOR DEPUTY PRESIDENT: I see.

PN124

MR HOWARD: Your Honour, I will not need a copy of this document as this is a document prepared out of my office on 16 October 2002 and it would have been emailed to Mr Pascale under instruction, on the completion of this document and he would not have probably got that until late 16 October 2002. I can verify that is a document prepared for myself.

PN125

MR HARRISON: Hence my qualification on or about 16 October 2002. Now, subsequent to that, Mr Gava who is with me, held discussions with Mr Pascale and with the union members and they, over time, rejected the terms of that suggested agreement because there were fundamental issues between the parties. That finally was registered by a notice of intention to institute bargaining period on 9 May 2003 and I provide a copy of that.

PN126

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of this document, Mr Howard?

PN127

MR HOWARD: I am aware of the document, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: Very well.

EXHIBIT #CFMEU3 NOTICE OF INTENTION OF BARGAINING PERIOD DATED MAY 2003 FROM THE CFMEU TO F. AND M. PASCALE PROPRIETARY LIMITED

PN129

MR HARRISON: On 1 April, Mr Gava held a meeting with members on the North Adelaide job at which they, again, rejected the latest edition of the employer's proposed agreement. He found out from an employee, who was able to get to a telephone to warn him that a meeting was to be held on one day a month ago, he can't be precise as to the date, but it is likely to be 16 April. However, when he arrived there, the meeting had already been held.

PN130

The information he had was that it was dominated by the foreman and that at one period the employer was present. It was quite clear to the company, we suggest, that the union had a vital interest in this, as did it's members. It is quite clear, in a small company like this, intimidation is very easy, particularly when an employer or foreman is present on a vote. That is reflected, of course, in the members withdrawing their votes on 2 May.

PN131

It is my submission that the valid majority means not simply a majority of employees but the right sort of employees have got to vote in their own interests and it seems inappropriate, with great respect to Mr Burdett, that as foreman he should attend these meetings and really present the position of management in the absence of a union representative. One would suggest properly his vote ought not to be counted in any event because he is representing management.

PN132

Of course the meeting, in our respectful submission, loses all its validity if the employer was there at any time without the union representation. It is our submission that it is also invalid that the union had not been given an opportunity to attend at the invitation of the employer. On that basis - I wonder if your Honour could tell me what date the application was made?

PN133

THE SENIOR DEPUTY PRESIDENT: The application was filed on 1 May, I understand, Mr Harrison.

PN134

MR HARRISON: To recapitulate, clearly section 170LK had not been met, particularly as to the subsections raised by the Commission. For the - - -

PN135

THE SENIOR DEPUTY PRESIDENT: Sorry, which subsections of 170LK do you say haven't been met?

PN136

MR HARRISON: We say we were not given notice of any amendments that went to that meeting.

PN137

THE SENIOR DEPUTY PRESIDENT: I am interested in which components of section 170LK would you say have not been met?

PN138

MR HARRISON: We say (5) and (8).

PN139

THE SENIOR DEPUTY PRESIDENT: (5) and (8).

PN140

MR HARRISON: In particular. This is superimposed, of course, upon what we say about the majority meeting. We say, with respect, it matters not what is in the agreement. What is important is the procedural matters of principle have not been followed and these matters of principle are important because they give vent to the real wishes of the members and it is an overwhelming majority with us and we urge that the certification be disallowed.

PN141

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison. Mr Howard.

PN142

MR HOWARD: If the Commission pleases, it is my understanding your Honour that both the persons appearing here as the employer representatives were duly elected by the other employees to represent them in negotiations with management. One of the persons concerned here today is a labourer and the other person is a bricklayer. As it has been said before by both of those persons, each of the employees had a copy of the document. In both circumstances the original document and the document that was altered.

PN143

It is my understanding that there was a meeting on 16 April where all the employees voted and elected to go ahead with the agreement as presented to the Commission this morning. I do understand that Mr Gava did become involved at some stage with some of the employees. I understand that the employees made a decision at the meeting of 16 April in respect of that issue. I am not privy to the meeting but as I said earlier, two employee representatives are here today. Really, this matter, as my friend has put it, the procedures that have been conducted have been conducted have been conducted in accordance with the provisions of the Workplace Relations Act 1996.

PN144

To verify those, the persons who were duly elected by the employees concerned to represent them are here in the courtroom today and in my opinion will be able to answer any of the questions that may have arisen as to the dubiousness of this agreement, as put by my friend. My understanding is there was discussions and the agreement was finally decided. My understanding is the agreement was decided on the basis that the union wouldn't sign the current agreement and the men decided they would go alone and have the agreement signed off and presented to the Commission on that basis.

PN145

Now, not having been privy to the meetings, I am not in a position to give the Commission a blow by blow description of what happened but I am sure, because the two employee representatives are in the courtroom this morning, that that information can be readily obtained by those - one or two of those people, whichever way we decide to go.

PN146

It appears to me that on the face value of what I've been told and what the paperwork that has been presented to the Commission is that this agreement has been presented having due regard to all of the relevant provisions of the Workplace Relations Act 1996 and on that grounds that I would consider that the Commission is in a position where it would be able to certify the document.

PN147

THE SENIOR DEPUTY PRESIDENT: Mr Howard, I propose to ask Mr Burdett and Mr Banister a couple of questions, but before I do, there is an issue upon which I would invite you to comment and that is that if I understood the statutory declaration, or if I recall the statutory declaration correctly it is to the effect of there being some 16 employees covered by the agreement?

PN148

MR HOWARD: Well, that is my understanding, the statutory declaration of Mr Pascale, yes.

PN149

THE SENIOR DEPUTY PRESIDENT: I have identified some 10 signatures on the authorities provided to me by the CFMEU in CFMEU1.

PN150

MR HOWARD: They were provided to the union after the document had been - - -

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, I am not questioning when those authorities were provided. I'm simply raising with you the extent to which you might care to comment on whether we have a situation here where Mr Harrison is the nominated representative of a majority of employees. He is now telling me that there is no agreement which I can certify. That is, to what extent does there currently exist an agreement?

PN152

MR HOWARD: At the time this document was signed off it is my understanding there was complete agreement as to the document.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes, perhaps I need to make my question a little clearer. I'm leaving aside for the moment the extent to which there may or may not have been complete agreement on or about 16 April. I'm simply looking at the matter from the perspective of today and I'm inviting you to comment on the extent to which Mr Harrison representing a majority of employees is saying: there is no agreement?

PN154

MR HOWARD: Well, I haven't heard from my friend the reasons why there is no agreement. He might have obtained signatures. How those signatures were obtained I am not at liberty to know and the reasons for them being obtained but there's certainly been no evidence put to this Commission as to why they have been obtained and what was the outcome of those in terms of the agreement those persons had already agreed to at a vote taken in which they had agreed on 16 April and to now sometime in May after the document had been lodged with the Commission, as to why they now say that they wish to withdraw from the document known as the proposed enterprise agreement. That has not been put to the Commission as to why. There must be some reasonable grounds as to why those people now wish to withdraw from a document they had voted on on 16 April and I haven't heard the reasons.

PN155

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Burdett and/or Mr Banister, I've got a few questions of you. You can answer collectively, you have been very good at doing that so far, or you can answer these questions individually. So you need not feel obligated to answer in the same way. Can either or both of you tell me about how the meeting on 16 April was called?

PN156

MR BURDETT: In - your Honour, in the - in October when we - when we first signed an EBA which Gordon and I had signed with Fred Pascale, we handed it to the union. It was misplaced. So we had to - we had to do another one the following year. Same - the same set up, the union said: let us have a look at your EBA and maybe we can put it through this time, maybe we can sign it. So it's - it's exact copy that we gave them in October. I handed it to - to Mark Gava. He had it for a week or so. They had a union meeting.

PN157

THE SENIOR DEPUTY PRESIDENT: When was this?

PN158

MR BURDETT: This is - I think this is just before the April meeting, this is the one at North Adelaide that I was saying that we had. The day before we had a meeting at Trades Hall and I went on my own and Gordon couldn't - couldn't make it and so I went in on my own to represeNt everybody because we had actually - already signed our EBA. So I was going - I went along anyway to hear what - - -

PN159

THE SENIOR DEPUTY PRESIDENT: So this meeting at Trades Hall was after 16 April?

PN160

MR BURDETT: It was before.

PN161

THE SENIOR DEPUTY PRESIDENT: Before?

PN162

MR BURDETT: It would've been 15th, if all the dates are right. On 15th I went to this meeting which consisted of some other subbies, from other brick laying subcontractors, so I - and they wanted everyone to hear the work for Pascale to hear what was going on. So the following day I thought well the best thing I can do is get a meeting with all our - well, with all the employees with Mark and Mark was just going to go over and tell them, you know, what happened.

PN163

THE SENIOR DEPUTY PRESIDENT: Sorry, who is Mark?

PN164

MR BURDETT: Mark Gava, to discuss what had gone on at the meeting. At that meeting the guys decided: no, we can probably do better than what we have done. So they put a vote to Mark and told him that the - well, we put it to a vote and they said they didn't want to sign our EBA that we had already signed once before. I - I went, I told Fred Pascale what had happened at the meeting, the following day, and we had a discussion with all the guys and it was more like - it was more a moral thing because we already had signed it and Gordon and I went back into - to see Fred to discuss it. Fred actually made another offer of a - of a little bit more and we told all the guys.

PN165

THE SENIOR DEPUTY PRESIDENT: This is on the - - -

PN166

MR BURDETT: This would have been on 17th.

PN167

THE SENIOR DEPUTY PRESIDENT: So there was an offer made on the - - -

PN168

MR BURDETT: No, hang on, I've got to get my dates right here.

PN169

THE SENIOR DEPUTY PRESIDENT: - - - what day?

PN170

MR BANISTER: Don't know an exact date, but it was probably - - -

PN171

MR BURDETT: Yes.

PN172

MR BANISTER: 9th of - - -

PN173

MR HARRISON: 9th of what?

PN174

MR BURDETT: No, it wouldn't have been 9th because it was only a - I thought it was only a few days after. It was only a few days after, it might have - so it would either have been the Friday or the Monday.

PN175

THE SENIOR DEPUTY PRESIDENT: Yes, you see there are a great many Fridays and Mondays. They occur with some regularity.

PN176

MR BURDETT: Sorry, your Honour, after - after 16th, exact date - I wasn't prepared for this so - - -

PN177

THE SENIOR DEPUTY PRESIDENT: So can I understand that there were a number of meetings prior to 16 April and that at some point early in April Mr Pascale's wages offer was increased such that the employees voted on that increased offer on 16 April?

PN178

MR BURDETT: That is right.

PN179

THE SENIOR DEPUTY PRESIDENT: Mr Howard, I need to advise you that I'm having some difficulty interpreting the advice that I'm now being given in the context of the requirements of section 170LK of the Act.

PN180

MR HOWARD: Well, I'm not privy to the discussions that took place at that shop level and I understand - I'm a bit confused by the dates myself at the moment. I'm trying attentively to listen and clarify because obviously I'm not sure what was changed. I'm not sure what was changed.

PN181

THE SENIOR DEPUTY PRESIDENT: It seems to me and I will clarify it again with, is it Mr Burdett or Mr Banister?

PN182

MR BURDETT: Burdett.

PN183

THE SENIOR DEPUTY PRESIDENT: You are Mr Burdett. That Mr Burdett is telling me that at some time in April following or preceding a meeting at Trades Hall the employees voted not to endorse the agreement. That there were then further discussions with Mr Pascale and that some provisions of the proposed agreement were increased and that as a result of that increase a meeting on 16 April voted in favour of the agreement. Now, have I correctly understood what it is you are telling me?

PN184

MR BURDETT: I'm not sure of the dates, your Honour. The dates have got me on - the exact dates I'm not sure of. I'm - I'm just going back to when we had the meeting from Trades - the Trades Hall. Do you know what that day was at all, Mark?

PN185

MR HARRISON: Could I point out, and I'm sure you will concede this that on that meeting at the Trades Hall which was on probably about 8th of - - -

PN186

MR BURDETT: No, it is before April. About March.

PN187

MR HARRISON: Which took place in late March. Mr Burdett was representing the company, not the men.

PN188

THE SENIOR DEPUTY PRESIDENT: Mr Burdett, at this stage, I'm not focused on who you were representing. To make it absolutely clear, the series of questions that I asked of Mr Howard some moments ago were drawn from section 170LK of the Workplace Relations Act. This section relates to agreements that are reached between an employer and his or her employees. That type of agreement is a different type of agreement to the one that might involve an agreement reached involving an employee association.

PN189

The Act is quite specific in terms of the criteria that must be met to allow me to approve an agreement that is reached between the employer and his or her employees. I have yet to get to the issue of exactly who you are representing and how you came to be representing those people. I'm focused at this stage on the extent to which I can be satisfied that if the agreement was varied at any point there needed to be a period of 14 days between the date of that variation and the date upon which employees voted in favour of the agreement and I'm foreshadowing to you that if the agreement was varied at any point in April 2003, after 2 April 2003, then there would be some difficulty in meeting that specific requirement of the Act and that is why I'm concerned to try to clarify the extent to which there was any variation of the agreement after 2 April. Can you confirm to me that there was no such variation?

PN190

MR BURDETT: No variation in our EBA at all?

PN191

THE SENIOR DEPUTY PRESIDENT: That is correct, that is what I'm asking?

PN192

MR BURDETT: Well, there had been a variation.

PN193

THE SENIOR DEPUTY PRESIDENT: After that date?

PN194

MR BURDETT: Yes.

PN195

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Howard, are you or Mr Pascale able to clarify this position for me?

PN196

MR HOWARD: Well, I certainly wouldn't be able to, your Honour. My understanding is from what I've gathered now is the meeting at Trades Hall was around about 9 March, then Mr Burdett said that they had a meeting and Mr Pascale made a further offer to satisfy the men. Now, I'm not sure whether that was prior to 2 April or after 2 April. i'm not privy to that and there seems to be there is an agreeance that the meeting was 9 March because I heard my friend suggest it was. So I mean whatever that was, I mean, I don't know what period after that that this - a further offer was made to satisfy the claims of the employees. I guess the only person who can make that statement to the Commission is Mr Pascale who is present today.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes, that is why I addressed the question to you or to Mr Pascale?

PN198

MR HOWARD: Yes, I think at this point in time it should be a question that Mr Pascale should proceed to answer.

PN199

THE SENIOR DEPUTY PRESIDENT: Mr Pascale, are you able to advise me of the last date upon which there was a variation to the proposed agreement?

PN200

MR PASCALE: The exact date, your Honour, I'm afraid I can't, I apologise. I didn't - this is my first time before this type of situation and I - - -

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, I won't ask you whether you are enjoying the occasion.

PN202

MR PASCALE: But I would have been better prepared had I - or come better prepared if I'd know that these - such things would've been asked, but, no, I can't clarify the date. The exact date I can't clarify but I can clarify to my - to the best of my knowledge is that there was some period of time and I'm talking some weeks, from the time that Malcolm informed me that there was going to be a meeting at the union office that Mark had called, Mark Gava had called this meeting.

PN203

THE SENIOR DEPUTY PRESIDENT: Yes, it would help me a little if you were actually able to refer to surnames for me. See, you may know the individuals.

PN204

MR PASCALE: I apologise, again.

PN205

THE SENIOR DEPUTY PRESIDENT: I'm wrestling with surnames, let alone first names.

PN206

MR PASCALE: Malcolm Burdett, my bricklayer employee advised me that Mark Gava from the CFMEU had called a meeting of subcontractors. Now, he asked me to go and I said, 'I'm not really interested in attending." He said, "We want to get everyone together to come to a level playing field and all that." Malcolm said that Mark Gava had approached him to attend this meeting and Malcolm can confirm this, to my discussion with Malcolm, he was attending as an employee to discuss our current, or our EBA as it stood at that time with the other contractors that were attending.

PN207

Nothing really eventuated definite from that meeting. Then I had subsequent discussions with Malcolm and the rest of my - all of my employees regarding our EBA. I was then informed that on or about 8 March my employees had a meeting with Mark Gava on one of my constructions sites. This was at Rosary School at Prospect. At that meeting the information I received was that Mark was coercing the men, my employees, not to sign this EBA or not to be a part of it, even though they had already signed it.

PN208

The problem we had was that the one that had already been signed in October, we were just waiting for the union who was a party to that one, which was the document I believe handed to you prior by Mr Harrison dated 16 October 2002, that document was awaiting the signing and agreement by the CFMEU which they never did, claiming that they had lost the document and making a lot of excuses along the way every time they were asked when they were going to sign the document so we can present it to this Commission.

PN209

I then met with my employees again. I said - sorry, this is after I had given the union another copy of the document. They still didn't want to be part of it. I had further meetings with my employees to resolve the issue. We had two or three meetings regarding the EBA. Every time we have had a meeting on each occasion and any one of my employees can substantiate this, I said, "I'm happy for the union to be a party to our agreement or not a party, it doesn't bother me whether they are or not as long as we agree on the terms."

PN210

The unions to my knowledge were invited to be a party to this agreement. They chose not to be. When Mark Gava from the CFMEU, at some stage he came to me and he said - was trying to, well, convince me in his way to change the EBA to incorporate other issues like the 36-hour week, like the higher superannuation provisions and other demands.

PN211

THE SENIOR DEPUTY PRESIDENT: When were these demands being made by Mr Gava?

PN212

MR PASCALE: These demands were being made towards the end of March, your Honour.

PN213

THE SENIOR DEPUTY PRESIDENT: I must say I'm having a little difficulty and perhaps I should say more than a little difficulty reconciling the information you are now giving me with the earlier answers to the questions that I asked, but I will persevere.

PN214

MR PASCALE: Well, I will try to be a bit more clear. Eventually on 16 April I did have a meeting with my employees. That was Malcolm and Jock on the day that they actually signed the EBA. Before this date and I can't recall the exact time but it was - I believe it was at least 2 weeks prior to this time, we had a meeting at our office of all my employees to re-establish the terms of this EBA. That was the day that Mark Gava claims he was supposed to be involved in a meeting at our office and that he was asked to attend but was not allowed to. That is not the case. The case was that we arranged the meeting with our employees. He came into our office at the time and tried to force himself into the meeting to which he was not welcome.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Pascale. I indicated to the parties that this application has been made pursuant to section 170LK of the Act. Section 170LK deals in quite specific terms with the requirements that must be met before an agreement can be certified. I'm not prepared to certify this agreement today. I'm not satisfied that the requirements of section 170LK(5) and the requirements of section 170LK(8) have been met. I think it appropriate that I advise the parties that I will issue a decision in this respect fundamentally because I am concerned that my refusal to certify the agreement could be very easily misconstrued and I want to make it clear.

PN216

The Act allows for an agreement pursuant to section 170LK. It allows accordingly for that agreement to be reached between either an employer and his or her employees without representation from the union or it allows for that agreement to be reached with one or more of those employees being represented by the union or a union. There's an entirely separate issue as to whether the union then seeks pursuant to section 170N of the Act to be cited or bound as a party to the agreement. If an employer an his or her employees are seeking a section 170LK agreement then you will need to be able to demonstrate to me that the quite specific requirements that are set out in that Act have in fact been met.

PN217

In that regard I am not satisfied that the agreement was not changed at some point within 14 days from 16 April. Equally I am not satisfied that the requirements that the employer give the CFMEU an opportunity, a reasonable opportunity, to meet and confer about the agreement was met. It may have been that those two requirements were met but I'm simply indicating to the parties that on the information here before me today and given the confusion as to dates, I'm not in a position where I can be satisfied in that regard.

PN218

So accordingly the application is dismissed. I think it appropriate that I make a couple of recommendations to the parties. It appears that Pascale Constructions Proprietary Limited is anxious to have an agreement with its employees. I would recommend to Pascale Constructions Proprietary Limited that they engage in discussions with someone such as Mr Howard who is able to identify the different options whereby such an agreement could be achieved. If a section 170LK agreement is to be pursued then I suggest that the employer will need to ensure that a transparent process is put in place to allow for the election of the employee representatives should they be desired by the employees.

PN219

I would recommend that if an agreement is put to the employees then there be documentation that allows the employer and the employees to identify and satisfy me that the requirements as to certain dates which are set out in section 170LK have in fact been met. As I said, in this case they may well have been met. The difficulty I have is being satisfied that that is the case. Further, that if there is to be a meeting of the employees in order to vote on the agreement, that there be an endeavour made to ensure that there is a record of that meeting or at least a list of those persons present.

PN220

Whilst by no means is it an essential, I would simply indicate that a significant number of employers opt for a secret ballot process to ensure that allegations of coercion can be simply and easily put to rest. In the event that the CFMEU seek to be involved in either discussions with the employer relative to a section 170LK agreement following a request from an employee I would suggest very strongly, Mr Harrison, that the CFMEU confirm its position to the company in writing so that once again the confusion in that regard can be very simply overcome.

PN221

I'm aware that the employees and indeed the employer have apparently now been seeking to confirm an agreement since October 2002. The Act prescribes necessarily mandatory time constraints to allow the employees to have a proper opportunity to consider an agreement, whether that agreement is sought pursuant to section 170LK or pursuant to section 170LJ through a union. Provided those opportunities and those requirements and prerequisites are met I can indicate to the employer now that I'm happy to convene a hearing at relatively short notice so as to consider the certification of an agreement in the future.

PN222

I need to stress the vast majority of agreements are reached through a cooperative process. That process is normally cooperative irrespective of whether section 170LK or LJ are utilised. It is a question for the parties to address but it is important that irrespective of that the parties demonstrate that the requirements of the Act necessary for certification of an agreement have been met. The decision that I will issue in this matter should be available to the parties within the next few days and as I said, I am anxious that that decision is made available so as to ensure that I minimise the extent to which there might be confusion about the reasons why I'm not prepared to certify the agreement today. I will adjourn the matter on that basis.

ADJOURNED ACCORDINGLY [12.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 DOCUMENT PN17
EXHIBIT #P1 BUNDLE OF DOCUMENTS WHICH APPEAR TO BE IDENTICALLY WORDED ADVISING EMPLOYEES OF THE INTENTION TO ENTER INTO AN AGREEMENT AND THE OPPORTUNITY TO BE REPRESENTED IN NEGOTIATIONS TO THAT EFFECT PN71
EXHIBIT #CFMEU2 DRAFT ENTERPRISE BARGAINING AGREEMENT ENTITLED THE PASCALE CONSTRUCTION PROPRIETARY LIMITED ENTERPRISE AGREEMENT 2002 PN120
EXHIBIT #CFMEU3 NOTICE OF INTENTION OF BARGAINING PERIOD DATED MAY 2003 FROM THE CFMEU TO F. AND M. PASCALE PROPRIETARY LIMITED PN129