AG2003/1249, Transcript of Proceedings [2003] AIRCTrans 2335 (13 June 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/1249

APPLICATION FOR CERTIFICATION OF
AGREEMENT - GREENFIELDS AGREEMENT
(DIVISION 2)

Application under section 170LL of the Act
by Samaras Structural Engineers and
Samaras Enterprises Pty Limited and Another
for certification of the Pelican Point Samaras
Structural Engineers and Samaras Enterprises
Pty Ltd Power Station Enterprise Bargaining
Agreement 2003-2004

ADELAIDE

3.45 PM, WEDNESDAY, 28 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have some appearances, please.

PN2

MR M. HARRISON: I appear with DARREN ROBERTS for the CFMEU.

PN3

MR R. SMITH: I appear for the applicant.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, before you proceed to introduce this matter, can I simply note that whilst the application was originally listed for 17 April 2003, it was withdrawn at Mr Smith's request on 10 April. I understood that Mr Smith was awaiting consideration of a decision that I handed down on 7 May relevant to another application. I have relisted it today at your behest, Mr Harrison. I have noted a facsimile that you have sent to me which seems to imply that the basis of the agreement may have changed somewhat so I would invite you to address me in relation to that issue as well as any other comments you want to make about the agreement.

PN5

MR HARRISON: The position is this, we took note even before your formal decision of 7 May, the position you might adopt in relation to this company because it not only had employees who were potentially to be employed on this site but in fact had already arrived. We took the trouble to hold, what would be, a valid majority meeting to ratify the agreement. Now, that is the cart before the horse because technically there is already an application before the Commission and the majority meeting was being held after. So it meant that it would be doing violence to seek to amend that application.

PN6

What we have suggested, and my friend is prepared to adopt this, is that fresh statutory declarations be filed in support of this certification, seeking a non Greenfields certification on the basis of really an amended application - we are seeking an extension of time to accommodate any technical issues that might arise with the 21 days vesting period. That will take a deal of exercise of the Commission's discretion. At the end of the day, it will be a far more legal process than erstwhile because what you will have is an application that the parties agree to the application and statutory declarations which will show a majority meeting has been held on the job and thus change the very nature of the agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: I understand the request you are making but if I can perhaps put that in my words and tell me whether I have properly understood it. Is it proposed to provide a copy of the agreement to employees to allow them to vote on it after they have got it for 14 days or are you telling me that the document has already been provided to the employees and the requirements of the Act in relation to the provision of that document have been met?

PN8

MR HARRISON: Yes, I can assure you of that myself because I was the one that put in train - Mr Roberts went down to the members and published the agreement which was to have been before you, it is not on file, I checked today. 14 days later he held a meeting and it is that meeting which we suggest is the valid majority.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. You are simply saying that you would arrange for statutory declarations to be filed by both yourself and Mr Smith to address the various questions that are contained in those statutory declarations?

PN10

MR HARRISON: My understanding is Mr Samaras will do a statutory declaration and we will do one in like manner.

PN11

THE SENIOR DEPUTY PRESIDENT: I will indicate at the outset that I am prepared to exercise the discretion provided for in section 111(1)(r) of the Act so as to extend the time frame for the lodgment of that material. Quite clearly the extent to which I can pre-empt the certification of the agreement would depend on the material that I am given in the statutory declarations.

PN12

MR HARRISON: That being so, I would seek an adjournment of these proceedings, say for - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, before you do seek an adjournment, I have a number of questions about the agreement. Those questions reflect my normal practice of seeking to ask questions about the intention of the agreement at this stage rather than regretting that I didn't ask them at a later point. I propose to raise those questions with you now. Subject to the answers that I'm given and subject to the receipt of the statutory declarations that you have undertaken would be provided to me, to what extent would say a further hearing of the matter was required?

PN14

MR HARRISON: Well, I suppose it could be done by letter - by exchange of letters.

PN15

THE SENIOR DEPUTY PRESIDENT: I am suggesting that if you answer the questions that I have today and if you provide me with the necessary statutory declarations and if, indeed, I am happy with the information contained within those declarations, then the agreement could simply be certified at that point.

PN16

PN17

MR HARRISON: Well, let us see if I can field them.

PN18

THE SENIOR DEPUTY PRESIDENT: I do need to stress the questions I am asking are not designed to trip up the process of certifying the agreement. They do not invite the parties to rewrite the document. They simply go to the intention of the parties. Can I take you to clause 3.5. Do you have a copy of the agreement, Mr Harrison?

PN19

MR HARRISON: I don't have that advantage at the moment. I didn't expect to be fielding any questions today but if I can have a look at it, I am sure I can.

PN20

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the agreement, Mr Smith?

PN21

MR SMITH: Not with me but that copy is in the same terms as Complete Scaffolds, which you took us through that agreement.

PN22

THE SENIOR DEPUTY PRESIDENT: I will provide you both with a loan copy and advise that if you fail to give those copies back at the conclusion of the hearing, my staff will pursue you to the end of the earth.

PN23

MR HARRISON: I expect that, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Clause 3.5 refers to an employee and defines an employee as:

PN25

Any person who is employed by Samaras Structural Engineers and Samaras Enterprises Proprietary Limited whether on a full time or casual basis.

PN26

Can I understand that that definition of employee is in effect further qualified by clause 4, the scope of the agreement?

PN27

MR HARRISON: Yes, indeed. Of course, by necessary implication covers part-time employees.

PN28

THE SENIOR DEPUTY PRESIDENT: Look, I will proceed to ask you all of my questions. I should perhaps have advised Mr Smith that unless he jumps to his feet I will take it he is in agreement with your responses.

PN29

MR SMITH: You are either full time or you are casual, there is no part time.

PN30

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, are you in agreement with that position?

PN31

MR HARRISON: Yes, the concession I was making was against interest, I guess.

PN32

THE SENIOR DEPUTY PRESIDENT: Clause 5.1 references:

PN33

Wages employees employed on the Playford B refurbishment and maintenance contract...

PN34

Is that the same as the Pelican Point power generation station?

PN35

MR HARRISON: No. That relates to the Playford job that is going on at the moment.

PN36

THE SENIOR DEPUTY PRESIDENT: Where does the agreement have application? Does it apply at Pelican Point power generation site or at the Playford B refurbishment and maintenance contract? Mr Smith.

PN37

MR SMITH: That is a typographical error and I will have to resubmit the agreement referring to Pelican Point.

PN38

THE SENIOR DEPUTY PRESIDENT: Mr Smith if you are going to resubmit the agreement, then the agreement document will go out to vote again. As I indicated to you quite categorically, I am not in the business of rewriting the agreement. I can take on board intentions but it appears to me this is a relatively fundamental issue such that I am not at all sure as to where it is the agreement is going to have application.

PN39

MR HARRISON: No, it is totally - - -

PN40

MR SMITH: The application is for Pelican Point.

PN41

MR HARRISON: It is a totally different agreement.

PN42

THE SENIOR DEPUTY PRESIDENT: Which is a totally different agreement?

PN43

MR HARRISON: Well, it is got to be if it does not name Pelican Point but names another site.

PN44

THE SENIOR DEPUTY PRESIDENT: You see, that is the point that I am making, Mr Harrison.

PN45

MR HARRISON: I think, with respect, I am not saying anything contrary to what has fallen from your Honour, if 5.1 relates to Playford at Port Augusta without any mention of Pelican Point, then clearly it is not the agreement that we are here to certify in due course.

PN46

THE SENIOR DEPUTY PRESIDENT: So you are agreeing the problem is of such a fundamental nature that it ought to be remedied, is that what you're saying?

PN47

MR HARRISON: Yes. I don't think it is a matter of changing the paper.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7 - I think it is probably appropriate that I go through the remaining few questions that I have because if the parties are going to resubmit the document it might prompt some other changes.

PN49

MR HARRISON: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Clause 7 indicates, in the second paragraph:

PN51

Any new facilitative agreement listed in the relevant clauses of the National Building and Construction Industry Award and introduced as a result of the award simplification case -

PN52

where I might say simplification occurred some time ago in relation to that award -

PN53

would not be used except by agreement between the employer and the union.

PN54

I would need some indication that employees would be incorporated in that process. It is not necessary that the parties change the document, simply necessary that I am given some form of undertaking that employees would be involved in the application of facilitative arrangements which, in most awards, require the involvement of the employer and the employees.

PN55

MR HARRISON: Yes, clearly, the employees ought to be involved save that I would have thought that paragraph is now redundant.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Smith, to the extent that the paragraph is not redundant, can you give me an undertaking that employees would be involved in the exercise of facilitative provisions?

PN57

MR SMITH: I will give you that undertaking, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Clause 14 relates to the Powerhouse Industry Allowance. Can I take it that allowance is intended to apply in addition to the wage rates set out in clause 12?

PN59

MR HARRISON: Yes, we agree with that.

PN60

THE SENIOR DEPUTY PRESIDENT: Clause 16, can I correctly understand this dispute resolution provision such that the role of the Commission clearly stops at the conciliation process.

PN61

MR HARRISON: Clearly it does on that set of words. In other words, it is not intended to introduce arbitration.

PN62

THE SENIOR DEPUTY PRESIDENT: Clause 22, I simply draw a typographical error to the parties attention in the last sentence of that clause. The word "party" I suggest might be better described as "part".

PN63

MR HARRISON: Clear part, the Y ought to be deleted.

PN64

THE SENIOR DEPUTY PRESIDENT: Whilst I note the inclusion of clause 23, I would need to foreshadow that my doubts that clause 23 is in any way an enforceable provision. I require an undertaking from both parties relevant to clause 26 such that I should not construe that clause in any way as requiring that membership of the CFMEU is a compulsory prerequisite for employment under this agreement.

PN65

MR HARRISON: No, on the contrary, 26.4 says it all.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, but you can give me an undertaking, can you, Mr Harrison?

PN67

MR HARRISON: Quite.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you, and you too, Mr Smith?

PN69

MR SMITH: Of course, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Second last question relates to clause 27 and the last paragraph in clause 27. Are you able to tell me what the parties intended by that particular paragraph?

PN71

MR SMITH: I can answer that, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Smith.

PN73

MR SMITH: It has always been both the clients of the power station, that is the generators and the head contractors, to ensure that wherever possible that employees are engaged either locally in Adelaide or Port Augusta and offer the jobs first to the local people because some of the companies that get subcontracted by the generators or Alstrum quite often have work forces in other States.

PN74

Quite often they like to bring them across and not give some of the work to the local people and this has in the past caused a few problems. It has always been the intention both of the client and the head contractor that we will source the labour first from the local areas. Now, that is the way we view it. We don't say, everybody who works in the power station has got to come within 50 kilometres of Adelaide or anything like that but it is the intention to source our labour from the local regional areas first.

PN75

THE SENIOR DEPUTY PRESIDENT: The last paragraph in that clause, what role does the union have in the determination of whether an individual employee might be recruited from, for instance, another State to work on this project?

PN76

MR SMITH: The union - that clause has never been invoked either by the employers or the unions. Where it has been raised by the union is where some interstate labour has been brought in either from New South Wales or the Latrobe Valley and there are people available for work that weren't selected and they tend to raise the protest flag there. But there's been no insistence from the union that you have got to employ people from Bliss or from themselves.

PN77

THE SENIOR DEPUTY PRESIDENT: Do you understand the clauses giving it that right of prohibition to the union?

PN78

MR SMITH: I don't see it as prohibition. I see that clause works more in a consultative way because when big shut downs come along and things like that, there seems to be a keen interest generated amongst the workforces of Port Augusta or Adelaide and others can get on to shut and quite often they ring the unions or ring the contractors before they even kick off. But we've never had any dispute with any of the unions in the power generation about engagement of labour.

PN79

It is not like over in Victoria. We have not had any problems. We regularly have, and it would be on tomorrow, every 2 months we regularly have a consultative forum with all the unions in the power generation at Trades Hall and it will be on at 3 pm. Any problems or concerns about the agreement or practices that are raised by both parties but I, you know, I can say here on the record, there's been no insistence.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, you see I'm not so much worried about previous practices, I'm probably more worried about the future, Mr Smith. Mr Harrison, can I take that provision in the context in which Mr Smith has explained it to me, such that the discussions with the union are of a consultative nature rather than of a character which requires the permission of the union before labour from outside the local area is engaged?

PN81

MR HARRISON: Yes, it is my submission that the last sentences means precisely that.

PN82

THE SENIOR DEPUTY PRESIDENT: I think the last sentence could be interpreted in a number of different ways but I understand you have agreed with my assessment?

PN83

MR HARRISON: That is right. I might say that the history of that clause is borrowed from Victoria where they - that is to keep the South Australians out who are on lower pay, not any specific people but just South Australians whose EBA seems to be a lower value than Victoria.

PN84

THE SENIOR DEPUTY PRESIDENT: In an age of competition policy and the sharing of electrical resources, I shall work from the premise that the parties are in agreement that the clause does not provide for prohibitions on the use of external labour but does establish that there will be consultation on that issue.

PN85

MR HARRISON: May it please the Commission.

PN86

MR SMITH: Can I just add something to that, your Honour. His past Honour, Deputy President Hancock, a number of years ago made a decision about consultation, it was over an ETSA matter and he defined what consultation meant and what agreement meant. Consultation is clearly defined in that decision. I will make a copy available to yourself.

PN87

THE SENIOR DEPUTY PRESIDENT: Look, I understand that position, Mr Smith.

PN88

MR SMITH: That is the way we see it.

PN89

THE SENIOR DEPUTY PRESIDENT: I am not at all phased by the word "consultation". My particular interest was drawn to the word "agreement" in the last sentence of that clause and it is there that I focus my interest.

PN90

MR SMITH: Well, that is where he defines the word "agreement" back to consultation in that decision. That is the one we rely on.

PN91

THE SENIOR DEPUTY PRESIDENT: My last question relates to clause 32 which purports to give leave to vary the agreement. Can I take it that the intention of the parties is that any variation of the agreement would be in accordance with section 170MD of the Act?

PN92

MR SMITH: Yes, your Honour, and in so doing a little bit of history here, when we first struck this agreement for 3 years, we weren't clairvoyant enough to work out what the going rate would be for travelling and redundancy and also the likely change that could have been made to the Superannuation Guarantee Act and the parties agreed to have a lead research clause put into the agreement and we will be negotiating or discussing those three matters round about September this year. So that when this agreement kicks over at 1 January the following year, we should have prior to then application to vary the agreement in accordance with the Act.

PN93

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Smith.

PN94

MR HARRISON: We would agree with that.

PN95

THE SENIOR DEPUTY PRESIDENT: Very well. Now, on the basis of the concern that I have raised in relation to the scope and application of the agreement, I understand, Mr Harrison, that you would be resubmitting the agreement to the employees. Is that correct?

PN96

MR HARRISON: Yes, it will take some fighting though unfortunately because there has been somewhat of a diaspora since this job closed but we must try to do it.

PN97

THE SENIOR DEPUTY PRESIDENT: On the basis that I receive back from the parties an agreement that is fundamentally reflective of that which I have before me today with the amendments that have been referred to, I will indicate to you that I don't see the need for a further hearing. I'm prepared to considered the statutory declarations that are provided to me with that agreement and if on the basis of those statutory declarations I am able to certify the agreement, I will do so with effect from the day upon which I receive the revised agreement and statutory declarations.

PN98

If my consideration of that material is such that I do consider a further hearing necessary, I will advise the parties accordingly but I doubt that that would be necessary. I will indicate to you now that if I certify the agreement, then I will be doing so on the basis of the undertakings that have been provided to me relative to this particular version.

PN99

MR HARRISON: Could I point out the definitions in clause - I've just seen these - 3.2:

PN100

Agreement shall mean the Pelican Point Samaras Structural Engineers and Samaras Enterprise Pty Ltd Power Stations Bargaining Agreement 2003/2004.

PN101

It is my submission that as a consequence my friend is right, 5.1 becomes a typing error because the binding character has got to be read down in terms of the definition. The agreement means the Pelican Point agreement or the activities of Samaras Structural Engineers at Pelican Point, then you have got to read that into the heading, clause 5:

PN102

The agreement shall be binding on...

PN103

So that is the Pelican Point agreement should be binding on. It follows that the words:

PN104

In respect to all wage employees employed on the Playford B Refurbishment and Maintenance Contract is capable of being severed.

PN105

It is our submission it can be severed from the words:

PN106

Playford B Refurbishment and Maintenance Contract.

PN107

Indeed, it can be severed from the words:

PN108

Employed on the Playford B Refurbishment and Maintenance Contract.

PN109

If a full stop were put behind the word "employees", that would have the same meaning as 3.2 and it is my submission, with respect, that we can bring in as Mr Smith urged an amended page 3 which means we don't need to go through the gyrations of chasing around South Australia to find these people on various other jobs.

PN110

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, are you prepared to give me an undertaking, firstly that the agreement was intended to apply to Samaras Structural Engineers and Samaras Enterprises Pty Ltd in respect of all its wages employees employed on the Pelican Point Power Station?

PN111

MR HARRISON: Yes, without a doubt. What is more, I don't think they have any in Playford, do they?

PN112

MR SMITH: No.

PN113

THE SENIOR DEPUTY PRESIDENT: Mr Smith, are you prepared to give me a similar undertaking?

PN114

MR SMITH: Certainly, your Honour. In fact, I will replace that page.

PN115

THE SENIOR DEPUTY PRESIDENT: No, I'm not suggesting that you replace the page. I perhaps need to keep repeating that.

PN116

MR SMITH: I'm quite happy if you just put a line through that.

PN117

THE SENIOR DEPUTY PRESIDENT: Neither am I suggesting that I cross out those particular words. I'm simply looking at and proposing that I would indicate to the parties that subject to the receipt of the necessary statutory declarations, I would certify the agreement as is but note on the certificate that that certification is subject to the undertaking given by both parties that the intent of the agreement was to apply to Samaras Structural Engineers and Samaras Enterprises Pty Ltd in respect to all its wages employees employed on the Pelican Point Power Station.

PN118

MR SMITH: I'm quite satisfied with that.

PN119

THE SENIOR DEPUTY PRESIDENT: Very well. In which case we will follow that path, it should substantially shorten the time for the provision of the necessary material. My earlier indications to the parties holds true in that I will certify the agreement with effect from the date upon which I receive those statutory declarations and that in the event that I'm not happy with those statutory declarations or the information contained in them, I will convene a further hearing of this matter.

PN120

MR HARRISON: There's a problem here. Clause 6:

PN121

This agreement shall operate from date of certification.

PN122

It is my submission that that of course has become inchoate because the job is already finished. What we are wanting is for the agreement to cover the period of work on that job.

PN123

THE SENIOR DEPUTY PRESIDENT: I might say, Mr Harrison, the agreement actually sets out rates which were applicable from 1 September 2002, if I recall it correctly.

PN124

MR HARRISON: Well, I beg your pardon, of course the date of certification will have the effect of backdating to all other dates but quite right.

PN125

THE SENIOR DEPUTY PRESIDENT: I mean, I'm not the author of the document and if the parties see a problem with their own document, that is for them to tell me about.

PN126

MR SMITH: Your Honour, the document was correct at the time of signing. It is just events overtook us. However, Samaras Cranes was informed by Alstrum for tender on those rates, which they did do. In fact, they paid their employees on those rates administered, the matter is on foot.

PN127

MR HARRISON: No, clause 12 clearly covers it.

PN128

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [4.33pm]