AG2003/1228, Transcript of Proceedings [2003] AIRCTrans 2330 (13 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1228

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied
Services Union of Australia, Electrical Division
South Australian Divisional Branch and Others
for certification of the Jaymel Airconditioning
Pty Limited Enterprise Agreement

ADELAIDE

9.00 AM, WEDNESDAY, 28 MAY 2003

PN1

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

PN2

MR K. BLEECHMORE: I'm from the Airconditioning Mechanical Contracts Association of South Australia Incorporated appearing for the company.

PN3

MR M. SUTTER: I'm from the CEPU Plumbing Division.

PN4

THE SENIOR DEPUTY PRESIDENT: It pleases me, Mr Sutter, thank you.

PN5

MR SUTTER: That is very kind of you.

PN6

THE SENIOR DEPUTY PRESIDENT: Now, this matter was on an earlier occasion the subject of a hearing before the Commission. The parties have gone away from that hearing and, as I understand the revised statutory declarations, it is to the effect that the agreement was put back to the employees and voted on again and is now re-submitted. Is that your understanding, Mr Bleechmore?

PN7

MR BLEECHMORE: That is correct, your Honour. In fact, we then went through the process on the - sorry, the EBA was represented to the employees and voted on and re-submitted on 30 April - I think I have those dates correct, your Honour - so they had it two weeks beforehand and re-submitted to the Commission.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, indeed. Can I take it that the answers to the questions that you provided on the last occasion still hold true, insofar as they remain relevant questions, given the changes that have been made to the agreement?

PN9

MR BLEECHMORE: Certainly, your Honour. The only changes were cosmetic and the removal of the roping in of subcontractors, so that it purely applies to the employees of Jaymel and those other minor administrative changes were made also.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. On the last occasion that you were before me, I raised a question about the absence of an appendix relative to apprentice rates.

PN11

MR BLEECHMORE: That appendix should now be included, your Honour. That was re-submitted to the employees on - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Whereabouts in the document would I find the appendix, Mr Bleechmore?

PN13

MR BLEECHMORE: I'm sorry, I missed that, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Whereabouts in the document will I find the appendix?

PN15

MR BLEECHMORE: The appendix should be immediately after appendix 4, certainly my copy has it, which should be: Jaymel Airconditioning Wage Paid Plumbing Apprentices, the second page of appendix 4.

PN16

THE SENIOR DEPUTY PRESIDENT: I have one page on my appendix 4. It is:

PN17

The wage rates for the registered plumber and the unregistered plumber.

PN18

MR BLEECHMORE: Not the second page of appendix 4.

PN19

THE SENIOR DEPUTY PRESIDENT: The next page is appendix 5 and it is the signatory page.

PN20

MR BLEECHMORE: Your Honour, I can't explain it because the copies - and certainly the copy that I have which was the master copy - has a second page of appendix 4, and certainly the company had the second page. It is made out in their name. I can't explain that, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Perhaps if you were to provide me with a copy of that page.

PN22

MR BLEECHMORE: Certainly.

PN23

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me that that page was incorporated in the package of information provided to employees?

PN24

MR BLEECHMORE: That is my understanding, your Honour, because certainly it is from my master and that was where all the copies came from. Now, I can't explain why - yes, I can explain - your copy was done after for re-submission to the Commission on the due date, which I think was the week after that, but the copy that went to the company on 16 April was directly from this master. I can't explain that. My understanding is it was, but I will verify that.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MR BLEECHMORE: Certainly, it is with my copy anyhow.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps before I ask you to go away to verify it. Mr Sutter, are you able to tell me that your understanding is that that advice was provided with the package of information associated with the agreement?

PN28

MR SUTTER: As far as I know that is correct. I think Mr Lean handled all that, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. All right, well, look, I'm happy to work from that understanding, provided the copy of that appendix is provided to me. For inclusion in the ..... - - -

PN30

MR BLEECHMORE: Could I please tender that copy. Certainly, that is the same and I have others.

PN31

THE SENIOR DEPUTY PRESIDENT: One last question, Mr Bleechmore. Can I take you to clause 31.

PN32

MR BLEECHMORE: Which would be: Travelling Away From Home Allowance.

PN33

THE SENIOR DEPUTY PRESIDENT: It is: The Picnic Day.

PN34

MR BLEECHMORE: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: There is a continuing reference to, "subcontractor", in that clause. Can I take it that the parties understand that the reference to, "subcontractor", is not something that is enforceable in terms of this agreement?

PN36

MR BLEECHMORE: Correct, your Honour, and I would ask that that be deleted. The intent was that - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Well, I will not delete it, but I will simply note that the intention of the parties is that the reference to the "subcontractor" in clause 31 is not enforceable.

PN38

MR BLEECHMORE: Correct, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bleechmore. On the basis of the information now provided to me, I understand that the employees have had an opportunity to review the revised agreement. That agreement has now overcome the fundamental deficiency which was previously identified relative to a proposal that it incorporate and be binding upon subcontractors.

PN40

I am satisfied that the agreement meets the requirements of the no disadvantage test, that is of a duration envisaged by the Act and that it does not contain provisions which are contrary to the Act. The agreement includes a dispute resolution provision in accordance with the Act. I will certify the agreement with effect from today.

PN41

The certificate will note that I raised questions, or a question relative to clause 31. It won't note the detail of the response given to me. Should that be necessary, the parties will need to refer to the transcript of today's proceedings. The certificate will also note that a question was raised relative to wage rates for plumbers apprentices and I will retain the schedule referred to in the agreement on the Commission's file, should that be necessary.

PN42

MR BLEECHMORE: Thank you, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis. Thank you.

ADJOURNED INDEFINITELY [9.08am]