AG2003/3962, Transcript of Proceedings [2003] AIRCTrans 3743 (26 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 4241

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2003/3962, 4000, 4017, 4068,
5385-5387, 5426-5427, 5469-5474,
5507-5519, 5521-5522, 5532-5537,
5540, 5543, 5544, 5546, 5555-5558
and 5621-5625

JJ REES NOMINEES PTY LTD - ETU
ENTERPRISE AGREEMENT 2003-2005

COMCELL SWITCHBOARDS PTY LTD
SWITCHBOARD UNION ENTERPRISE
AGREEMENT 2003-2005

S.K.B.S. ELECTRICAL CONTRACTORS -
ETU ENTERPRISE AGREEMENT 2003-2005

SIEMENS LTD - ETU ENTERPRISE
AGREEMENT 2003-2005

GRAINGER INDUSTRIES PTY LTD AND
CEPU ENTERPRISE AGREEMENT 2002-2005

TORZ FIRE PROTECTION PTY LTD SPRINKLER
FITTING CERTIFIED AGREEMENT VIC 2002-2005

CHAMPION FX PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

CETTA PTY LTD AND CEPU ENTERPRISE
AGREEMENT 2002-2005

MCCAIG AND SWAIN PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

MONASH PLUMBERS AND GASFITTERS PTY LTD
AND CEPU ENTERPRISE AGREEMENT 2002-2005

COOLEC AND CEPU ENTERPRISE AGREEMENT
2002-2005

JCP SERVICES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

L U SIMON BUILDERS PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

BG AND JM RAYMOND PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

AIM FIRE PROTECTION AND CEPU SPRINKLER
FITTING CERTIFIED AGREEMENT VIC 2002-2005

AIR CYCLE HEATING AND COOLING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

DBS PLUMBING SERVICES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

SALISBURY PLUMBING AND CEPU ENTERPRISE
AGREEMENT 2002-2005

CORNELLISSEN NOMINEES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

FRANKLIN NOMINEES PTY LTD SPRINKLER
FITTING CERTIFIED AGREEMENT VIC 2002-2005

MBI PLUMBING AND CEPU ENTERPRISE
AGREEMENT 2002-2005

KADE PLUMBING CEPU ENTERPRISE AGREEMENT
2002-2005

GEN CARE PTY LTD AND CEPU ENTERPRISE
AGREEMENT 2002-2005

ROSEHILL RD PLUMBING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

G J SHORT PLUMBING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

GLOBAL PLUMBING AND CEPU ENTERPRISE
AGREEMENT 2002-2005

CRUISE DEVELOPMENTS PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

ULTIMATE AIRCONDITIONING (VIC) PTY LTD
AND CEPU ENTERPRISE AGREEMENT 2002-2005

TOP NOTCH AND CEPU ENTERPRISE
AGREEMENT 2002-2005

METROPOLITAN DRAIN CLEANING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

NORTHWEST AIRCONDITIONING COMMERCIAL
PTY LTD AND CEPU ENTERPRISE AGREEMENT
2002-2005

STAR INSULATION PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

NOEL AIRCONDITIONING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

HEATCO SALES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

GUSTER CONTRACTORS PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

GETINGE AUSTRALIA PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

MICALLEF PLUMBING INDUSTRIES PTY LTD
AND CEPU ENTERPRISE AGREEMENT 2002-2005

HADEN SERVICE AND CEPU ENTERPRISE
AGREEMENT 2002-2005

JKC AIRCONDITIONING SERVICES AND
CEPU ENTERPRISE AGREEMENT 2002-2005

ROOF SERVICE COMPANY PTY LTD CEPU
ENTERPRISE AGREEMENT 2002-2005

YARRA PLUMBING SERVICES PTY LTD AND
CEPU ENTERPRISE AGREEMENT 2002-2005

EVERSAFE FIRE SERVICES PTY LTD SPRINKLER
FITTING CERTIFIED AGREEMENT VIC 2002-2005

DAVROD PLUMBING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

DINO'S PLUMBING PTY LTD CEPU
ENTERPRISE AGREEMENT 2002-2005

ELITE FIRE PROTECTION PTY LTD AND CEPU
SPRINKLER FITTING CERTIFIED AGREEMENT
VIC 2002-2005

CRAIG BOURKE PLUMBING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

ADVANTAGE PLUMBING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

S J M VIC PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

NEWTELL DEVELOPMENTS PTY LTD AND
CEPU ENTERPRISE AGREEMENT 2002-2005

Applications under section 170LJ of the Act
by the Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia for
certification of agreements

MELBOURNE

2.10 PM, MONDAY, 7 JULY 2003

PN1

MR B. FITTON: I appear on behalf of the CEPU Plumbing Division.

PN2

THE VICE PRESIDENT: Anyone here from Siemens?

PN3

MR D. COOK: Yes, I appear for Siemens Ltd.

PN4

MR G. BORENSTEIN: If the Commission pleases, I am involved in the Siemens matter, which is AG 2003/4068. I am not sure whether these were called out but I am also - - -

PN5

THE VICE PRESIDENT: Yes.

PN6

MR BORENSTEIN: I will just list the ones I am involved in, 4017 and 3962.

PN7

THE VICE PRESIDENT: Thank you. And your name for the record?

PN8

MR BORENSTEIN: Borenstein. I think I am also involved in matter 4000 as well.

PN9

THE VICE PRESIDENT: Sorry, Mr Borenstein. We get the CEPU and we tend to lock them all together but that is fine.

PN10

MR BORENSTEIN: Thank you, your Honour.

PN11

THE VICE PRESIDENT: Can I deal with - there are three matters in which XF applications have been made. They are 3962, 4017 and 4068 and in relation to I think 3962 and 4068, it is said that the National Electrical, Electronic and Communications Contracting Industry Award is the appropriate award. In relation to 4017, it is said that the Plumbing Trades (Southern States) Construction Award is the appropriate award. Do I take it that the nature of the work covered by these agreements is such that those awards that I have mentioned are the appropriate awards for determining the no disadvantage test?

PN12

MR BORENSTEIN: Your Honour, in respect of the two matters which refer to the NECI award, the employer is bound by those awards and we withdraw our application for determination in respect of those.

PN13

THE VICE PRESIDENT: Okay, that is fine. And in relation to 4017?

PN14

MR BORENSTEIN: 4017, I am quite surprised - I haven't heard of the award that was mentioned in the - - -

PN15

THE VICE PRESIDENT: It is the Plumbing Trades (Southern States) Construction Award.

PN16

MR BORENSTEIN: Is that the plumbing - - -

PN17

THE VICE PRESIDENT: That is all right, Mr Borenstein. We will come back to that one in a moment and I take it the other two are withdrawn.

PN18

MR BORENSTEIN: The other two are withdrawn. In respect to that one, the NECI award would be the most - whether they are bound by it, it is the most appropriate award.

PN19

THE VICE PRESIDENT: Okay. Just bear with me for a moment. Perhaps I can, since you are on your feet, Mr Borenstein, I will put the questions as to the statutory test to you.

PN20

MR BORENSTEIN: Yes, your Honour.

PN21

THE VICE PRESIDENT: I will deal with the out of time issue separately and is there any objection to me dealing with all of the applications together? No? I appreciate that you have an interest in some and Mr Fitton has an interest in some but I will ask you the questions and then I will ask the other representatives whether or not they agree with your answers.

PN22

I note that the applications state they have been made under Division 2 of part VIB of the Act. Are the employers party to these agreements constitutional corporations within the meaning of the Act or employers in Victoria within the meaning of section 494 of the Act?

PN23

MR BORENSTEIN: Yes, your Honour.

PN24

THE VICE PRESIDENT: I note that written copies of the agreements have been submitted for certification. In some instances the documents have been filed electronically. Are each of these agreements about matters pertaining to the employment relationship?

PN25

MR BORENSTEIN: Yes, your Honour.

PN26

THE VICE PRESIDENT: And in respect of each of these agreements, are they in respect of a single business?

PN27

MR BORENSTEIN: Yes, your Honour.

PN28

THE VICE PRESIDENT: And do the organisations of employers party to these agreements have at least one member employed in the single businesses whose employment will be subject to the agreements?

PN29

MR BORENSTEIN: Yes, your Honour.

PN30

THE VICE PRESIDENT: And are they entitled to represent the industrial interests of their members so employed?

PN31

MR BORENSTEIN: Yes, your Honour.

PN32

THE VICE PRESIDENT: I note what is said about the consultation process. In respect of each of these agreements, was a vote taken of the employees employed at the time whose employment would be subject to the agreement about whether they approve the agreement?

PN33

MR BORENSTEIN: Yes, your Honour.

PN34

THE VICE PRESIDENT: Did each employee employed at that time have an opportunity to cast a vote?

PN35

MR BORENSTEIN: Yes.

PN36

THE VICE PRESIDENT: Were a majority of the valid votes cast in favour of approving the agreement?

PN37

MR BORENSTEIN: Yes.

PN38

THE VICE PRESIDENT: I note in each case there is a disputes settlement clause in clause 11 of the agreement.

PN39

MR BORENSTEIN: Yes.

PN40

THE VICE PRESIDENT: The clause numbering may vary but in each case there is a clause dealing with the settlement of disputes?

PN41

MR BORENSTEIN: There is, your Honour.

PN42

THE VICE PRESIDENT: I note that each of the agreements specifies a nominal expiry date.

PN43

MR BORENSTEIN: Yes.

PN44

THE VICE PRESIDENT: In relation to termination of employment, are any provisions in any of these agreements inconsistent with a provision of Division 3 of Part VIA, an order by the Commission under that division or any injunction granted or any order made by a Court under that division?

PN45

MR BORENSTEIN: No, your Honour.

PN46

THE VICE PRESIDENT: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead me to refuse to certify any of these agreements?

PN47

MR BORENSTEIN: No, your Honour.

PN48

THE VICE PRESIDENT: In relation to discrimination, do any provisions of these agreements discriminate against an employee whose employment would be subject to them because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN49

MR BORENSTEIN: No, your Honour.

PN50

THE VICE PRESIDENT: Do any of these agreements contain any objectionable provisions within the meaning of section 170LU(2)(A)?

PN51

MR BORENSTEIN: No, your Honour.

PN52

THE VICE PRESIDENT: Mr Crook, do you agree in relation to the matter that you are appearing for with the answers that Mr Borenstein has given?

PN53

MR CROOK: Yes, your Honour.

PN54

THE VICE PRESIDENT: Thank you. Mr Fitton, same with you?

PN55

MR FITTON: Yes, your Honour.

PN56

THE VICE PRESIDENT: Thank you. Can I deal with the out of time issues. Matters number 5469 and 5471 and 5544, statutory declarations have been filed going to the out of time issue and I am satisfied in those three cases that time should be extended. There are seven other matters which are out of time, numbers 5521, 5532, 5536, 5537, 5543, 5546 and 5624. The periods range from six days to just over six weeks. I think they are yours, Mr Fitton. Are any of them yours, Mr Borenstein?

PN57

MR BORENSTEIN: No, your Honour, thankfully.

PN58

THE VICE PRESIDENT: Mr Fitton?

PN59

MR FITTON: Yes, your Honour. I have a statutory declaration here made out identifying them, advising that the responsible officer from our organisation has rung each of the companies and they have stated that the composition of the labour force has not changed since they had an election and it was endorsed by a valid majority. Further, also the reason a lot of these agreements are lodged late is that we have difficulty with some of our contracting entities getting them to enter the timeframe. I submit this statutory declaration, your Honour. Could I talk to other matters that - - -

PN60

THE VICE PRESIDENT: Yes, just bear with me for a moment. Yes, Mr Fitton.

PN61

MR FITTON: With regard to AG5485, 5386, 5387, 5426 and 5427, we lodged those electronically with copies of the stat decs. The stat decs were filled in but evidently they were unsigned copies that were forwarded. I ask his Honour if he would give us grace to submit signed copies.

PN62

THE VICE PRESIDENT: That is fine. How long do you require for that? Would end of the week be sufficient?

PN63

MR FITTON: I would hope so, your Honour.

PN64

THE VICE PRESIDENT: Can you just give me those numbers again?

PN65

MR FITTON: 5385, 5386, 5387, 5426 and 5427. Two other agreements do have a problem. One is - - -

PN66

THE VICE PRESIDENT: 5511 or - - -

PN67

MR FITTON: 5511 - - -

PN68

THE VICE PRESIDENT: 5533?

PN69

MR FITTON: And 5533. In both of those instances, we have been unable to contact the persons to in some way correct that and I would request his Honour permits us a period to do that.

PN70

THE VICE PRESIDENT: That is fine. Well in relation to those two matters and the five other matters you mentioned, I won't deal with them at this time until you clarify what the position is in relation to the last two matters and provide the agreement in relation to the other five but I will give you until, say, the end of next week to deal with those issues. Subject to those matters being dealt with, I would indicate now that I am satisfied that they meet the relevant statutory tests and I would issue a certificate to that effect in relation to those matters. In relation to the balance of the matters, the XF application in 4017 - - -

PN71

MR BORENSTEIN: Yes, your Honour, I will seek to withdraw that application. In the stat decs of the respondent - of the employer, sorry, say that they are bound by the NECI award so we are happy with that.

PN72

THE VICE PRESIDENT: That is fine. Thank you. In relation to the other matters that I have mentioned, save for the seven that Mr Fitton and I were just dealing with, I would indicate that I am satisfied that they meet the relevant statutory tests and I will issue certificates certifying each of those agreements.

ADJOURNED INDEFINITELY [2.23pm]