AG2003/5312, Transcript of Proceedings [2003] AIRCTrans 3026 (16 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BARTEL

AG2003/5312

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Insultech Group Pty Ltd and Another for
certification of the Insultech Group Pty Ltd,
Playford B Refurbishment and Maintenance
Contract Agreement 2003-2004

ADELAIDE

2.40 PM, WEDNESDAY, 2 JULY 2003

PN1

MR R. SMITH: I appear for the applicant in this matter, Insultech.

PN2

MR A. PLANT: I appear for the AMWU in this matter.

PN3

THE COMMISSIONER: Thanks, Mr Plant. Mr Smith?

PN4

MR SMITH: Thank you, Commissioner. Just a bit of background. Insultech Group Pty Ltd is a metals contractor and they also deal with asbestos eradication and they've been engaged by Alstom Power to work with them on the refurbishment of the Playford B Power Station at Port Augusta. The agreement that is currently before you is in virtually similar terms to all metals agreements applying to all contractors on that site and numerous ones have been certified by this Commission. The company is relying on the statutory declaration provided to you to enable certification.

PN5

THE COMMISSIONER: Just on that, the stat dec that is on file was completed by a Mr Oliveri, is that correct pronunciation?

PN6

MR SMITH: That is correct.

PN7

THE COMMISSIONER: Which does not appear, notwithstanding that it has been witnessed by a JP, it does not appear to be completed.

PN8

MR SMITH: Yes, it was witnessed by a police constable at Port Augusta Police Station and if you find the statutory declaration, that policeman and certain other people other than JPs are keen to certify.

PN9

THE COMMISSIONER: I have no quarrel with that. My concern is that the stat dec on file has not been completed.

PN10

MR SMITH: Well, I've got one here that has been filed and I think you might have a problem with the Registry. I've got a spare one you can put on the file.

PN11

THE COMMISSIONER: Yes, if I could have a look at that. I've got one dated - - -

PN12

MR SMITH: There's two there, both the same. Normally the Registry in South Australia does take two copies of every statutory declaration.

PN13

THE COMMISSIONER: Well, where do you say - - -

PN14

MR SMITH: The back page.

PN15

THE COMMISSIONER: Yes.

PN16

MR SMITH: I was with Mr Oliveri when he signed that statutory declaration, Commissioner.

PN17

THE COMMISSIONER: Have you got a copy yourself now of the stat dec?

PN18

MR SMITH: Yes.

PN19

THE COMMISSIONER: Just have a look at part 2.

PN20

MR SMITH: Part 2, correct.

PN21

THE COMMISSIONER: Yes, about the jurisdictional basis of the application.

PN22

MR SMITH: You asked for an ACN number.

PN23

THE COMMISSIONER: Well, it says: state the basis on which the application is made under Division 2 of Part VIB of the Act.

PN24

MR SMITH: The employer is a constitutional corporation. There's no ACN number there. Would it be possible for me to phone that through to your associate?

PN25

THE COMMISSIONER: Yes. I mean it is not even that there's no ACN number. That can be obtained by the Commission in any event.

PN26

MR SMITH: I might even have it here with me. I don't know why it wasn't put in and I will take the blame for that.

PN27

THE COMMISSIONER: So I take it that it is the first box then should be ticked?

PN28

MR SMITH: That is correct and it is a statutory corporation - not statutory, it is a constitutional corporation and I will phone through the ACN number to your associate tomorrow morning. I apologise for that.

PN29

THE COMMISSIONER: If you turn to part 6, statement of the agreement was genuinely approved.

PN30

MR SMITH: Yes, it was.

PN31

THE COMMISSIONER: Now, has your form got a tick in a box?

PN32

MR SMITH: It says they've specified the date.

PN33

THE COMMISSIONER: Yes. Look it is just really important that these boxes be completed because when we go through a checking process - - -

PN34

MR SMITH: The problem that you get is that when you do these electronically you can't do ticks and crosses and that is a problem. So you have got to do it manually but I'm quite happy to tick that if you could.

PN35

THE COMMISSIONER: Well, look I can tick any box. That is not a problem.

PN36

MR SMITH: This is the first time we've been pulled up though for this. Normally they just take the date but I'm quite happy.

PN37

THE COMMISSIONER: Well, look you may or may not be aware but the Commission, and I think it was last year, was under some scrutiny by a particular Minister in relation to us apparently being negligent in checking statutory declarations. Now, I don't want to be the subject of any criticism from the erstwhile Minister so it is important that these be completed. That is why it has been raised.

PN38

MR SMITH: Well, if you put a tick in that box and then I will make sure that that box is ticked from now on but as I said, in the past the date has been sufficient but anyway - - -

PN39

THE COMMISSIONER: Now, under 7.3 of the agreement?

PN40

MR SMITH: The certification of this agreement would result in no reduction in the overall terms and conditions.

PN41

THE COMMISSIONER: Thank you.

PN42

MR SMITH: That is why 6.4 wasn't in.

PN43

THE COMMISSIONER: All right. Thank you for that.

PN44

MR SMITH: Thank you. I must say in my submissions to you that the agreement does conform with the Act. It does contain a dispute settlement procedures clause and its period of operation goes through to 30 December 2004 and I will rely on the documentation put forward to seek you to certify it.

PN45

THE COMMISSIONER: Yes, thanks, Mr Smith. Mr Plant?

PN46

MR PLANT: If it please the Commission, members who have been consulted agreed to the terms contained in the agreement. The stat decs now obviously meet the requirements of the Act and I believe the agreement meets the requirements of the Act and on that basis we are seeking certification of the agreement.

PN47

THE COMMISSIONER: Thank you for that. Yes, look on the basis of the information presented by Mr Smith today, the statutory declarations filed by the parties and also the content of the proposed agreement which I have read, I'm satisfied that the agreement meets the statutory requirements, in particular that it was approved by a valid majority of employees, that it meets the no disadvantage test, that it contains the required clauses for dispute settling procedures and also the renegotiation of the agreement and on that basis pursuant to section 170LT the application for approval of the agreement is approved.

PN48

A certificate will be issued to the parties in due course and I note that the agreement will operate from today's date, being 2 July, and has a nominal expiry date of 30 December 2004. There was just one note I've got here. Yes, perhaps, Mr Plant, or, Mr Smith, in the agreement itself clause 23 deals with casual employment.

PN49

MR SMITH: Yes.

PN50

THE COMMISSIONER: Just the last sentence says:

PN51

The loading constitutes part of the casual employees' all-purpose rates.

PN52

Is that a concept under the agreement or under the award or what is the intent of that?

PN53

MR SMITH: That is the concept that actually is under the agreement but it does link back to the award because the 25 per cent goes on the total all-purpose rate because if you have a look at this agreement you will see the tool allowance stripped out and if it was electrical you'd also see a registration fee. The reason why that has been stripped out is because the head agreement which applies to Alstom contains simple rates in that as well and if it was in the rate, the riggers and scaffolders would pick up 95 per cent of the tool allowance which they are not entitled to. So when it goes back to the all-purpose rate, the all-purpose rate in the award does include the tool allowance.

PN54

THE COMMISSIONER: All right.

PN55

MR SMITH: That is what is behind it.

PN56

THE COMMISSIONER: Thank you for that clarification.

PN57

MR SMITH: That is all right.

PN58

THE COMMISSIONER: As I have indicated, the certificate will be issued in due course.

PN59

MR SMITH: Thank you.

ADJOURNED INDEFINITELY [2.45pm]