AG2003/2822, Transcript of Proceedings [2003] AIRCTrans 3217 (29 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/2822

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Universal Scaffolding Pty Ltd and Another
for certification of Universal Scaffolding Pty
Ltd Enterprise Agreement 2003

ADELAIDE

9.39 AM, TUESDAY, 8 JULY 2003

PN1

MR M.J. HOWARD: I appear for Universal Scaffolding Pty Limited. Appearing with me is MR R. HALL, who is the proprietor of Universal Scaffolding Pty Limited.

PN2

THE SENIOR DEPUTY PRESIDENT: I note again there is no appearance from the union and that the CFMEU has not provided a statutory declaration, nor indeed has signed the document. On that basis I can indicate to you that, in the same way that I have addressed the other matters this morning, I have significant difficulty associated with addressing the application today and I understand that you do not seek to pursue it?

PN3

MR HOWARD: That is correct, your Honour. Having due regard to the previous matters and this being a like matter, we wouldn't pursue the certification of the agreement this morning. We will take on board what the Commission has said in the previous two matters and we will seek to comply with the provisions of section 170LK of the Act.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Howard, what I would do is outline to you on an entirely discretionary basis the various issues which you may or may not care to address in the process of reviewing the agreement so that it might be considered very quickly as a section 170LK document. Obviously, to the extent that it is necessary, the document, references to the CFMEU would possibly need to be changed. The dispute settlement procedure at clause 2.4.8 refers to an appropriate industrial tribunal. I would generally ask the parties which Commission they intended to refer the dispute to and, indeed, what it is that they would have the Commission do with it. There's no right answer to that question except that if the parties give me different answers then, to the extent that they are different, there is a wrong answer.

PN5

MR HOWARD: That is correct, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: The ACTU Demarcation Disputes Procedure at 2.5 gives rise to a question as to whether the parties can confirm the currency of the document to which they are referring. Clause 3.5 addresses the issue of supplementary labour. I am unclear as to whether the intention there is to cover employees of Universal Scaffolding who might be obtained through a hire labour company or to bind a labour hire company, which obviously is not a party to this agreement. To the extent that the clause purports to bind a labour hire company not party to the agreement, there are some potentially significant questions that could go to the whole basis of the application for certification.

PN7

MR HOWARD: I understand, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: I note the potential for confusion relative to clauses 5.3 and 5.4 and the extent to which they might be seen to overlap with 3.11. I also note the parties have decided or indicated a preference for retaining a somewhat duplicative provision in clause 9 and, again, clause 9.2.3 references the industry-agreed procedure on inclement weather and I would normally ask the parties to confirm that they are in fact talking about the same procedure in that regard. Those questions may or may not be taken up by the parties. The one remaining issue that I will address in relation to Universal Scaffolding is to refer to the decision that I issued on 27 May in print PR932125.

PN9

In that matter, which related to an application from the CFMEU for a section 127 order, I concluded by noting that I took the CFMEUs submissions as indicative of concern that any agreement reached between Universal Scaffolding and its current employees is unlikely to be genuinely made. To the extent that the Universal Scaffolding company is on notice as a result of that interest or concern expressed by the CFMEU, I simply make it absolutely clear to you now that the agreement that is put or may be put to me in accordance with section 170LK will have to comply with the very clear prerequisites outlined in section 170LK, if it is to be certified. I make that point perhaps a little more pointedly or blatantly in this matter, given the earlier dispute in relation to this particular company.

PN10

MR HOWARD: We have taken that on board, your Honour. The circumstances are that we did - particularly one of the persons who was alluded to by the union as not being covered by the agreement, we have absolute proof that the person concerned worked on building sites. In fact, we have a photograph of that person actually performing work on building sites and we actually have hard evidence that that person was paid according to the agreement. And that is one of the issues that arose out of the previous hearing before yourself and we are confident that that person does meet all the requirements of section 170LK as an employee of the company covered by the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: I thought it only fair that I foreshadow to you that - - -

PN12

MR HOWARD: I will be taking cognisance of that, your Honour. We have - - -

PN13

THE SENIOR DEPUTY PRESIDENT: The section will need to be met in its entirety.

PN14

MR HOWARD: Yes, yes, it will be. We will make sure that use of terminology - we are squeaky clean when we reappear under section 170LK.

PN15

THE SENIOR DEPUTY PRESIDENT: There's one other question that I - obviously the signatory page would need to be reviewed on these various documents, Mr Howard?

PN16

MR HOWARD: I understand that, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Those issues may or may not assist the parties in their considerations on a section 170LK application and, again, I would indicate to you that if an application is made and even if I am advised in advance of it being made, I will do everything I can to facilitate the early conclusion of the matter. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [9.50am]