AG2002/2483, Transcript of Proceedings [2003] AIRCTrans 3958 (8 September 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 4350

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2002/2483, 4309-4322, 4325-4329,
4331-4335, 4337-4346, 4348-4350,
4353-4369, 4372, 4373, 4387, 4388,
4392-4405, 4422, 4423, 4425-4431,
6249-6251, 6306, 6307, 6360, 6361,
6388-6391, 6407, 6408, 6415, 6419,
6426-6430, 6547, 6548

CK CARPENTRY (VIC) PTY LIMITED - HOLDEN V6
PLANT PROJECT AGREEMENT

Application under section 170LL of the Act
for the certification of the CK Carpentry (Vic)
Pty Ltd - Holden V6 Plant Project Agreement

HERBERT STAPELFELDT AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MONA'S CONCRETE PUMPING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

JT AND MH CONSTRUCTIONS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

GC BRICKLAYING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MARK WESTONS CAULKING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

IN VOGUE CONSTRUCTION AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PHILLSTAR DEVELOPMENTS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DYNAMIC CLOSURES (AUST) PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

WESTCOAST SEALANTS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PROGRESS CONCRETE PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MATTIOLI DOMESTIC AND COMMERCIAL PAINTING SERVICES PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ARMSTRONG PROPERTY SERVICES AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

TOM TSCHEREPKO AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CONCEPT BRICKLAYING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BELROSE LANDSCAPING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

IMPRESSIVE SOLID PLASTERING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AQUASEEDING SERVICES PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

TJ AND JM HARTY PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MORRIAN PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BAZZCRANE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PEBBLECRETE IN-SITU PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DGB BUILDERS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

TERASEAL AUSTRALIA PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SCOTT JONES AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MUTSAERTS PAINTING SERVICE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

URBAN DRILLING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

LUMIC EPOXY ART AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CURRIE TILING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

STATUS SPORTS SURFACES PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

LEDA CONSTRUCTIONS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BURNS SITE DEVELOPMENTS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

STATEWIDE CONCRETE PUMPING CO PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ACE CONCRETE SAWING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MELBOURNE SCAFFOLDING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

OF AND L. HEALY PAINTING AND DECORATING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AGI PRODUCT PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PROAL PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

QUALITY LABOUR HIRE PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SOUTHERN PLANT HIRE PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

P AND Q PLASTER PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

T. TSCHEREPKO AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

LES CONSTRUCTIONS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

L AND W CEILINGS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

TUNNEY AND HOULIHAN PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CARDAMONE CONSTRUCTION PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

JOHN'S CERAMIC TILING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BENMAN CONSTRUCTIONS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PERFECT AUSTRALIAN WARDROBES AND SHOWER SCREENS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DIRECT ACCESS SERVICES PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AFFORDABLE CONCRETE PUMPING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

WESTCOAST WINDOWS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

HEAVY LIFT CRANES AUSTRALIA PTY LIMITED AND CFMEU MOBILE CRANE HIRING INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2006

DIRECT CRANES TRUCKS AND CFMEU MOBILE CRANE HIRING INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2006

CONCHRIS PTY LIMITED T/AS LANGDON CONTRACTORS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

KEENAN MARK PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SYSTEMATIC INTERIORS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

S AND B SHOPFITTINGS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

KIRWAN POWER SWEEPING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

HERITAGE GREEN PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

JASADA PTY LIMITED T/AS GA AND SL OLIVERI AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AUST-CORP PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

HIGHRISE PAINTING AND DECORATING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

RIVERVIEW CONCRETE FORMWORK AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DARYL'S TREE CARE AND SURGERY PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AIDAN HALL AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ALUMINIUM GLASS FACADE SYSTEMS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BK SIGNAGE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

M AND D INTERIORS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

WARRNAMBOOL CRANE HIRE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

GET CLEAN AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CARAVILLA BUILDERS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CALLAM PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PERICON PROPERTY SERVICES AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

NORTHERN JOINERY AND CABINET WORKS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

INTALEKT PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CNE CONSTRUCTIONS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CS SHELVING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

VERTICAL HIGH ACCESS SPECIALIST AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SIGNHOUSE INDUSTRIES PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ANTONELLO PRECAST CONCRETE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MELBOURNE CLIPFIT GLAZING SYSTEMS PTY LIMITED T/AS CLIPFIT AUSTRALIA AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MUGGLETON AND ROPER AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

NEW MILLENNIUM MARBLE AND GRANITE PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

WHYTEHALL SHOPFITTERS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

WESTERN TREATMENT PLANT, WERRIBEE - 25W LAGOON UPGRADE SUPPLEMENTARY AGREEMENT

WESTERN TREATMENT PLANT, WERRIBEE - 25 LAGOON UPGRADE SUPPLEMENTARY AGREEMENT

SIGNIVERSAL VICTORIA PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ADHERETTES PTY LIMITED AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OFF-SITE SIGNAGE AGREEMENT 2002-2005

AUSTRALIAN CORPORATE SIGNAGE PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

M AND P PAINTING CONTRACTORS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CULVERT CONSTRUCTIONS (AUST) PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BF CONCRETE CUT AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

URBANFORM CONSTRUCTIONS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

DBL ENGINEERING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CFMEU AND JR AND JD BALDI PTY LIMITED RIVERINA AND MURRAY REGIONAL AREA COLLECTIVE BARGAINING AGREEMENT 2002-2005

CFMEU AND ZAUNER CONSTRUCTIONS PTY LIMITED RIVERINA AND MURRAY REGIONAL AREA COLLECTIVE BARGAINING AGREEMENT 2002-2005

CFMEU AND MAHERS GLASSWORKS RIVERINA AND MURRAY REGIONAL AREA COLLECTIVE BARGAINING AGREEMENT 2002-2005

CFMEU AND BALLYMOUNT ENTERPRISES PTY LIMITED RIVERINA AND MURRAY REGIONAL AREA COLLECTIVE BARGAINING AGREEMENT 2002-2005

FREEWAY CONCRETE CONSTRUCTIONS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CFMEU AND GARRY MORGAN AND CO RIVERINA AND MURRAY
REGIONAL AREA COLLECTIVE BARGAINING AGREEMENT 2002-2005

CFMEU AND FINBRAN PTY LIMITED T/AS NEW-CRETE CONCRETING RIVERINA AND MURRAY REGIONAL AREA COLLECTIVE BARGAINING AGREEMENT 2002-2005

Applications under section 170LJ of the Act
for certification of above agreements

MELBOURNE

2.22 PM, MONDAY, 25 AUGUST 2003

PN1

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union in each of the matters listed.

PN2

MR J. HOY: I appear for the Australian Industry Group on behalf of DBL Engineering in matter number 2003/6419.

PN3

MR D. HODGES: I appear for the Master Builders' Association of Victoria representing 4387 and 4388.

PN4

MR W. WEST: I appear for VECCI on behalf of matters 6306, 6307, 6249, 6250, 6251.

PN5

MR D. ANCRUM: I appear on behalf of Kirwan Power Sweeping in relation to certification of our agreement.

PN6

THE DEPUTY PRESIDENT: Right, who would like to start? No takers?

PN7

MR ANCRUM: I will start first. I am just here today really on an experience point of view. I don't have any objections to the enterprise bargaining agreement. It is just a straightforward matter.

PN8

THE DEPUTY PRESIDENT: So you support certification of the agreement?

PN9

MR ANCRUM: Yes, I do.

PN10

THE DEPUTY PRESIDENT: Thank you very much for those submissions and we will see if Mr Wainwright supports your submission. Mr Wainwright.

PN11

MR WAINWRIGHT: Yes, your Honour, in relation to the Kirwan agreement and to the other agreements that the CFMEU has lodged which I think are all of the agreements that there are not other appearances for, I do seek certification. Your Honour, the agreements each meet the requirements of the Act in relation to section 170LJ and Section 170LT. The one agreement that I should perhaps pick out, your Honour, is CK Carpentry which is an application under section 170LL. Your Honour, we sought last year and I note that my current colleague, Mr Maddison, appeared on the same day for a different organisation.

PN12

THE DEPUTY PRESIDENT: Did he now?

PN13

MR WAINWRIGHT: He did. He appeared for the ETU on that day after me. Your Honour, the company didn't appear and we required further information from them by way of a statutory declaration. They have obviously not come forward with that. It is an agreement that covered the work down at the Holden V6 plant. Your Honour, that work has concluded and I understand now the plant is almost ready to go. They are fitting in the machinery which is not work that the CFMEU are involved with. I can't see any course of events other than you proposing to dismiss the application.

PN14

THE DEPUTY PRESIDENT: Yes, I think that is what I will do, unless there is some reason given for not.

PN15

MR WAINWRIGHT: I can't give you a compelling reason, your Honour, especially considering it is a project agreement and the work that was performed under that agreement has been performed.

PN16

THE DEPUTY PRESIDENT: Yes. I think I asked for a statutory declaration some time ago. It hasn't been provided. I think enough time has been given, so unless a very good reason is provided now, I will dismiss the matter.

PN17

MR WAINWRIGHT: Your Honour, just to let you know the CFMEU has taken steps to encourage the company to do that and to encourage the builder that contracted the work to the company to also encourage them and none of those efforts have been successful.

PN18

THE DEPUTY PRESIDENT: Thanks, Mr Wainwright. I will treat the matter on that basis. I will dismiss the matter for the reasons I have already given. Perhaps I will just take you through. There is a few more out of time matters, 4310 is out of time, 4333 is out of time by 21 days, 4340, I think there is simply a mistake in clause 6.2 of the statutory declaration, a date of 7 September '03 is referred to. It is probably I presume referring to 9 July. I assume that is simply a typographical error.

PN19

MR WAINWRIGHT: Yes, I think they have just transposed the two numbers.

PN20

THE DEPUTY PRESIDENT: I think so, yes. 4360 is 14 days out of time, 4388 is nine days out of time, 6250 is three months out of time, 6251 is 21 days, 6306 is seven months out of time, 6307 is 16 days out of time, 6389 is five days out of time and so on and so forth. 6391 is three and a half months out of time, 6407 is 34 days out of time, 6408 is 42 days out of time, 6415 is three months out of time, and finally I hope, 6426 is 53 days out of time, 6427 is two days out of time, 6428 is six weeks out of time, 6429 is six weeks out of time and 6430 is 16 days out of time, so I think half the advocate at the table are covered by these issues. I don't know who you wish to deal with those issues, Mr Wainwright.

PN21

MR WAINWRIGHT: I am not sure which of those are out applications and which aren't, your Honour.

PN22

THE DEPUTY PRESIDENT: Well, why don't I do this, then? I will ask the parties whose applications they are to deal with those, so I think some of them will be yours, Mr Wainwright, or would it be easier for me to start the other way around?

PN23

MR WAINWRIGHT: I think the other way around, your Honour, because I think some of the more lengthy ones are at the other end.

PN24

THE DEPUTY PRESIDENT: Thank you. I think that means you, Mr West?

PN25

MR WEST: Yes.

PN26

THE DEPUTY PRESIDENT: I am sorry about that, but I think you are the person who has the difficult job.

PN27

MR WEST: Your Honour, I have five agreements. I have a fax from each of four companies to say that their workforce has not altered since the taking of the vote to agree on the enterprise agreement and I will hand them up.

PN28

THE DEPUTY PRESIDENT: Thank you very much. They concern all five?

PN29

MR WEST: No, your Honour, that is for four. I have a problem with matter number 6249. My instruction there, Antonello Precast Concrete, indeed, his workforce has changed significantly, hence my instructions are in late July that most, if not all, of his employees were made redundant and I am in the Commission's hands where we want to pursue the agreement inasmuch that the workforce has changed significantly and he is out of time.

PN30

THE DEPUTY PRESIDENT: I think there is then a problem because it may affect - in fact, what I will do is this. Mr Wainwright, do you wish to say something on that?

PN31

MR WAINWRIGHT: Yes, before you chart a course of events, if I could make some submissions. Your Honour, we continue to seek certification today. The time line that is relevant in relation to this application is that a vote is said to have occurred on 18 April. Let me withdraw that. A vote occurred on 18 April as attested. The two parties have lodged statutory declarations. Your Honour, the company completed their statutory declaration on 22 May, so already by the time they had completed their statutory declaration, the statutory limit had expired. That was forwarded to us on or around 10 June and we completed our statutory declaration on 13 June, then, your Honour, the paperwork was not lodged until 17 July and as you have heard today, Mr West says that in late July redundancies occurred.

PN32

Your Honour, we submit that pursuant to Senior Deputy President Lacy's decision in Securitas, the CFMEU is still entitled to rely on this agreement. You have not heard from Mr West that the company has ceased operations. They have simply ceased to employ the eight people who voted on the agreement. I certainly hope that the company gets some work and operates again and I hope those eight people are offered the ability to come back to work, but, your Honour, the test has been placed in the Act so that you don't have a circumstance where two people vote on an agreement and then another 100 are employed and they are locked into the terms and conditions that two have voted on. That is not the situation that occurs here, so the CFMEU submits that our interests would be damaged were you not to extend the prescribed period in relation to this matter. The CFMEU have done all that we can as a party to the agreement to make sure that the application was lodged on time and we seek that you exercise your discretion in that regard.

PN33

THE DEPUTY PRESIDENT: Right, well, I wasn't actually going to put a view except on procedure where I was going to say - and thank you for those submissions. They are clearly relevant and I will give them some consideration. What I need really from the parties, the parties would be aware that the approach the Commission takes to extension of time is first of all whether there has been a substantial change in the workforce and secondly reasons for the delay.

PN34

On the issue of substantial change in the workforce, if there has been a substantial change and this is my question, really, what I was going to say, it is a question to the parties, does that substantial change alter the effect of the valid majority such that it is not safe for me to rely on the vote that occurred before and I think that is probably the approach I should take, subject to anything people say in their submissions, so what I need from both sides is an explanation of that issue.

PN35

There has been a substantial change I hear from the employer and is the effect of that substantial change such as to change the valid majority, such that the requirements of the Act either aren't met or it is unsafe for me to rely on it at this stage, or is there some other test I should follow? I am open to suggestions.

PN36

MR WEST: Well, your Honour, I am familiar with the decision from Senior Deputy President Lacy, the signed documentation by both parties. My instructions are that, as I said, his workforce was significantly reduced, if not everyone was made redundant. The company did say that they would be prepared in the future to look at having another EBA with the union. As I said, I am very mindful of that decision. I am in the hands of the Commission. I have got certain instructions, but whether it disadvantage the company or not whether you certify the agreement, it is in the hands of - - -

PN37

THE DEPUTY PRESIDENT: What is the effect in your view of the change, substantial change in the workforce on the valid majority vote having regard to the elapse of time? Is it safe or desirable for me to rely on that, or is there some other legal test I should take to that issue which I am not aware of or I haven't raised? I don't pretend to have all the answers, Mr West. I am actually seeking some answers from both of you.

PN38

MR WEST: The history behind this company, your Honour, is that I think the nephew took over from the uncle, the company - I think the name was the same and I suppose the work ran out, your Honour, and he finds himself in a situation where he can't honour, or he has made these people redundant. Now, whether he would still honour an agreement, if he had work tomorrow and picked up a number of people, I can't answer that. I would say he would, but I haven't got instructions to answer that.

PN39

MR WAINWRIGHT: Well, your Honour, I am sure he would honour an agreement that you certified. I think you have identified the relevant test. The issue is that the eight people who voted on the agreement and from whom a valid majority was secured are no longer employed there. You could not rely on it - sorry, your Honour.

PN40

THE DEPUTY PRESIDENT: It was a unanimous vote, was it?

PN41

MR WAINWRIGHT: Well, my only instructions are that a valid majority was secured, so I am operating on the basis that at least five people voted for it out of the eight. Your Honour, you couldn't rely on that vote if five new people had been employed in the interim period, because we don't know what the view of those five people might be. They might be against the agreement. Be it any number greater than five, I don't think you could rely on that valid majority vote, but logically, because no-one has been employed, logically because no-one has been employed other than those eight, the valid majority vote has not been unsettled. It remains.

PN42

I think your Honour could rely if at least five people had been employed, but in the absence of that, we would submit to you that the valid majority vote is still good. It is obviously not preferable to have an agreement lodged with the Commission on 17 July when it was voted for on 18 April, but, your Honour, as I say, and my submissions to you from the bar table have not been challenged, the CFMEU cannot be in a way punished for that delay. We have certain rights. We negotiated the agreement with this company. We still want the agreement certified.

PN43

You have heard that the company isn't against the agreement necessarily operating. They simply say to you, well, look, we are not employing anyone right now and we don't challenge those submissions that have been put to you. We simply say that we entered into the agreement and we want it to operate and we believe that under Senior Deputy President Lacy's decision, there is an obligation there to extend the prescribed period and certify the agreement.

PN44

THE DEPUTY PRESIDENT: There is no question of bad faith on the part of the employer? They are not using delay to avoid an agreement or anything of the sort, are they?

PN45

MR WAINWRIGHT: I am not suggesting that today, your Honour.

PN46

THE DEPUTY PRESIDENT: No, I know you are not, but I just want to make that clear. If they were, that would be relevant.

PN47

MR WAINWRIGHT: And as Mr West has pointed out, there is no suggestion of any bad faith in making the eight people redundant.

PN48

THE DEPUTY PRESIDENT: Indeed.

PN49

MR WAINWRIGHT: It is simply a vicissitude of operating in the construction industry, but we certainly hope the company operates again in the future and if they do, we think it is right and proper that there be this industrial instrument there for them to operate under.

PN50

THE DEPUTY PRESIDENT: All right, thank you. Do you have anything to add?

PN51

MR WEST: Your Honour, my instructions are limited, but the logic is that the company were prepared and happy to sign an agreement back in April and, indeed, the economic circumstances that enabled them to, well, the downturn in the work enabled them to put off some people in July. I suppose the intent is still there that if they pick up work and bring on people, the intent is there that they have got an agreement in place, which they have agreed to in April.

PN52

THE DEPUTY PRESIDENT: All right, what I will do on this matter then - thank you for that, Mr West - I will give some thought to what has been put and make a decision one way or another. Thank you for that. I must say I don't like to engage in extensive litigation on these sorts of agreements, but nevertheless, I will give some thought to it. Now, Mr West, back to your agreements. I have in front of me statutory declarations for matter 6251, 6306, 6250, 6307.

PN53

In each case, the relevant employer has indicated in writing that the workforce has not changed since the vote was taken, so I think that deals with one aspect of the test for extension of time. The second aspect, Mr West, is this. Please give me a good explanation for the delay, in some cases substantial delay, three months, 21 days, seven months. Is it seven months, 6306? Yes, seven months and 6307 is only 16 days. What is the explanation for a seven month delay?

PN54

MR WEST: Your Honour, the explanation is I would think administrative error on the part of VECCI and the only thing I can say is that I apologise for the agreements being out of time for such a length of time.

PN55

THE DEPUTY PRESIDENT: Right, and I am sure you will take steps to ensure that - - -

PN56

MR WEST: You can rest assured on that, your Honour.

PN57

THE DEPUTY PRESIDENT: - - - the administrative problems that seem to have occurred in these four matters won't occur again or an attempt will be made to ensure that.

PN58

MR WEST: Yes, I would hopefully agree on that, yes.

PN59

THE DEPUTY PRESIDENT: Thank you. On the basis of the submissions of Mr Wainwright and Mr West, I will extend time in those four matters as sought by Mr West. Matter 6249 is, of course - I have reserved my position on that. Right, now, that is that lot of extension of time. I think that leaves a number of others. Who is appearing in the others? Any other advocates apart from Mr Wainwright.

PN60

MR HODGES: Yes, your Honour, I will be seeking an extension of time in regard to 4388.

PN61

THE DEPUTY PRESIDENT: Yes, nine days out of time.

PN62

MR HODGES: That is correct, your Honour. I am advised that delay was due to an administrative error re the electronic e-filing. We are still having a few teething problems with that. The appropriate steps have been followed, though. I personally contacted the company and notified them of the time and date of the hearing. I have also asked whether the composition of the workforce has changed in the interim period since the vote and I have been advised that it has not and if I may, your Honour, I would like to tender a statutory declaration to that effect.

PN63

THE DEPUTY PRESIDENT: Thank you very much, so no-one else has anything to say apart from Mr Wainwright on late applications? I think that leaves you, Mr Wainwright, to deal with the remainder.

PN64

MR WAINWRIGHT: Yes, your Honour. In relation to the remainder of the applications that are late, what I would seek from you is I suppose an approach that says that I would like to apply for you to exercise your discretion to extend the prescribed period for those applications that are less than 14 days out of time and I ask you to do that on the basis of the fact that the delay has been caused by administrative problems that the CFMEU has in relation to the pure volume of agreements that we are handling and if the other parties at the bar table want to agree to update the National Building Construction Industry Award to the level of the current certified agreement, we could avoid this problem, but I don't see them doing that, your Honour, so I simply ask that you exercise your discretion for those matters.

PN65

For the matters that the CFMEU has lodged that are greater than 14 days, I must say I don't have those matter numbers 100 per cent clear in my head, but I am sure that I will get on top of those, the CFMEU would seek a 14 day period to allow us to lodge statutory declarations with you going to the composition of the workforce at the time that the lodgments were made and going to the reasons for the delay.

PN66

THE DEPUTY PRESIDENT: Do others support that course of action, if anybody is affected by that proposal? Any objection to that course of action? No objection from any party appearing. All right, I will act consistently with that approach and I will adjourn the issue of extension of time for the matters that are more than 14 days out of time and await advice from you in relation to those and I will now proceed to hear submissions on the issue of whether the statutory tests are satisfied or not and perhaps we can do that in a global approach. I will start with you, Mr Wainwright, since you have the largest body of representation.

PN67

MR WAINWRIGHT: Yes. Well, we are parties to each of the agreements, your Honour, and we say that those applications that the CFMEU has lodged and those applications lodged by the other parties meet the requirements of the Act. Each of the applications, your Honour, has a - they run out not greater than three years from the date on which the agreement was made.

PN68

THE DEPUTY PRESIDENT: Period of operation less than three years.

PN69

MR WAINWRIGHT: Less than three years. They each have a disputes resolution procedure that meets the requirements of the Act. Your Honour, the statutory declaration outline the process that the parties went through in explaining the terms of the agreement. Each of the employees who voted on the agreement either had copies of the agreement or had ready access to the agreement for at least 14 days prior to the valid majority vote being held. In each of the workplaces, a valid majority vote was held and the majority of employees bound by the agreements agreed to the terms of the agreements.

PN70

Your Honour, the CFMEU has at least one member in each of the businesses covered by these agreements and we are entitled to represent the industrial interests of those members. In relation to the no disadvantage test, your Honour, I submit to you that these agreements comfortably meet the requirements of that test and provide for rates of pay and other conditions well above the current relevant awards. Unless you have any other questions, your Honour, we seek that the agreements be certified.

PN71

THE DEPUTY PRESIDENT: Thank you very much. Does anybody support or oppose Mr Wainwright's submissions?

PN72

MR WEST: Your Honour, VECCI certainly supports the submissions.

PN73

THE DEPUTY PRESIDENT: Thank you, Mr West.

PN74

MR HODGES: Yes, I support the submissions, your Honour.

PN75

THE DEPUTY PRESIDENT: Thank you, Mr Hodges.

PN76

MR HOY: Yes, your Honour, we support the submissions made by Mr Wainwright. If I might raise one issue with you, your Honour. Matter 6419, I note that the - this is an LL agreement, a greenfields agreement and unfortunately the statutory declarations that were submitted were based on an LJ agreement. We were not aware that with the new forms issued by the Commission, that they broke up that LJ/LL statutory declaration, but I can assure the Commission that the CFMEU is able and entitled to cover any employee that would be covered by that DBL agreement.

PN77

It is my submission, statutory declaration, that the agreement was made when it was signed by the parties. The company signed it on 10 July and the CFMEU on 18 July and it was lodged on 24 July, so it was well within the 21 day limit and we would ask that you certify the agreement in the terms sought. If the Commission please.

PN78

THE DEPUTY PRESIDENT: So what you are asking me to do is waive the requirement of the rules relating to forms to the extent necessary, is that right?

PN79

MR HOY: That is correct, your Honour, yes.

PN80

THE DEPUTY PRESIDENT: Thank you. I am certainly prepared to do that in the circumstances. It is not an issue of any great significance. The key issue is that the tests are met. I think four agreements are not signed by either side and that is matter 4395, 4396, 4397 and 4399. Is that right? Well, it is right. The Act doesn't require an agreement to be signed. Rather, that is a requirement of the rules which can we waived and I think I have ruled to that effect in a previous decision.

PN81

MR WAINWRIGHT: You have, your Honour, but this matter did come up in a recent certification hearing that I had last week. I think it was before Senior Deputy President Williams. It seems like a strange anomaly, your Honour. I think that there has been some difficulty with the lodgment and the fact that we have scanned the agreements, then e-mailed them and also sent a Word document that is not signed, obviously, but the scanned documents should show a completed signature page on each of the agreements. I can't understand how you don't have one. What I would like to do, on the basis of your understanding that there are unsigned agreements before you is seek that you do exercise your discretion.

PN82

THE DEPUTY PRESIDENT: Pursuant to the rules?

PN83

MR WAINWRIGHT: Pursuant to the rules to waive those requirements, but also I have an opportunity to have a look at the files to see what has gone on, because I do think it is an issue to deal with how the Commission has received our documents because there should be no way that you have received unsigned documents.

PN84

THE DEPUTY PRESIDENT: Yes. Well, the documents on file are definitely not signed. I have just checked one of them and the others have been checked, so there is probably some sort of difficulty of the transmission on one side or another.

PN85

MR WAINWRIGHT: Yes, your Honour, it is. It might be a matter that I have to take up with Megan Wall in the Registry because - and your Associate is just showing me now - these are our electronically lodged documents and the statutory declarations are signed.

PN86

THE DEPUTY PRESIDENT: Yes.

[2.55pm]

PN87

MR WAINWRIGHT: And we would - but I see that the EBA document that is attached to the statutory declarations hasn't got our bar coding on the top. You might note on your file, your Honour, that on the application form, on the R27, is a bar code. What our system allows for is that on the front page of the agreement should be the next number, so if you have got 2236 there on the bar code on the application form, then the agreement should have a bar code of 2237. That is the way the system works, so a difficulty has arisen there, but certainly we would have a signed agreement in our possession, your Honour.

PN88

THE DEPUTY PRESIDENT: Well, the key issue is firstly that and secondly that one is lodged and thirdly, even if it is not signed, if the agreement has been made consistent with the Act, those are the three issues. It seems to me one hasn't been filed for whatever reason, an error of some kind. Secondly, the document, however, on your submission has been signed and you are prepared to provide I suppose written copies to that effect subsequent to these proceedings.

PN89

MR WAINWRIGHT: Well, I can, your Honour, yes.

PN90

THE DEPUTY PRESIDENT: I think that is probably the easiest way to solve it, isn't it, or is there a better way of dealing with it?

PN91

MR WAINWRIGHT: I don't think so. I think what I was going to do, I have got this file here of an agreement with ourselves and High Rise Painting and Decorating. What I was proposing to do before I left the Commission was to see if I could talk to people in the Registry about how that application was received and hopefully get to the bottom of the problem.

PN92

THE DEPUTY PRESIDENT: All right, we will leave it on that basis. I will await your advice within say a week or two on the issue of what has occurred in relation to those four agreements, namely 4395, 4396, 4397 and 4399 and I will deal with it as - I will await your advice and see where we go with it.

PN93

MR WAINWRIGHT: Thank you, your Honour.

PN94

THE DEPUTY PRESIDENT: In matter 4334, the union's statutory declaration isn't signed. However, I can rely on the contents I think of the employer's statutory declaration and I will do so and waive the rules to the extent necessary. Finally, in one matter, 4405, I have had some written communication from the employer party who doesn't seem to have appeared today. I will provide a copy to Mr Wainwright. I have received an e-mail from a Mr Steve Jovanovic trading as Get Clean, the employer in the matter apparently and it provides a range of views in relation to the matter, I suppose I could say.

PN95

He doesn't argue that - first of all, he doesn't appear today, secondly he doesn't argue that any of the statutory tests for certification are not met in the matter. He does, however, want the matter not to proceed and the reason he provides for it not proceeding in his view is this. He undertook a quote for a cleaning job of new apartments. His tender was unsuccessful. He wishes a refund of a sum of $350 he says he paid to the CFMEU. He is the director of the employer, of Get Clean, according to the statutory declaration, so he is the employer, so that is his submission. Mr Wainwright, do you want to deal with that and any other issue in the e-mail you wish to deal with?

PN96

MR WAINWRIGHT: Well, I can say that I have had two extensive discussions with Mr Jovanovic, just some things that I need to make clear from his correspondence, your Honour. First of all, the documentation that he said he received, he received from an unnamed building company, I expect. I don't know who they are. They have given him some advice together with their tender documentation, as I understand it. He has then come to the CFMEU and asked us to do an EBA with him and we were happy to do an EBA with him.

PN97

We hope to have agreements with each of the employers in the construction industry. He asked us and contracted with us to prepare the documentation for the application here in the Commission and for that he was charged $350. If he went to the MBA, they would charge him 500-odd, I think, or 350. They have matched us. We used to be cheaper than them, so each of the parties - - -

PN98

THE DEPUTY PRESIDENT: You had better review your prices, Mr Wainwright.

PN99

MR WAINWRIGHT: We should. Regardless, it is at some significant expense that we prepare applications here to the Commission and we do often charge a fee for that. This company approached us to have an EBA with them and we charged them for it. That is the $350 figure that he is talking about. He rang us and said, well, now because I didn't get the job which is obviously not of the CFMEUs doing, and now that you have done what I contracted you to do, I would like to have the money back and we said, well, I am sorry, you can't have the money back, so that is dealing with some of the issues in the correspondence, your Honour, so you understand what that is about. In relation to the application, we submit that it meets the requirements of the Act. We are very sorry that Mr Jovanovic didn't get this work and a bit like the previous matter, we hope he picks up some work soon. The sooner he picks up work, the sooner he stops calling me.

PN100

THE DEPUTY PRESIDENT: Yes, well, the employer has not alleged that the statutory tests for certification are not met, rather, has lodged a statutory declaration to the effect that they are met as has the CFMEU and on that basis I will certify the agreement as sought. Just one last think, I think. In matter 4368, there is some debate about what the expiry date is. The agreement says the agreement expires on 30 June 2006. The two statutory declarations seem to contradict that. The company's statutory declaration says it expires on 30 June 2003 which means it has already expired and the union statutory declaration says it expires on 28 February 2006. I think that probably amounts to a clerical error. We can rely on the agreement, can't we, Mr Wainwright?

PN101

MR WAINWRIGHT: Yes, your Honour, we rely on what the clause says in the agreement itself.

PN102

THE DEPUTY PRESIDENT: Thank you very much. Is there anything else? I think we have covered the field. I will certify the agreements as sought by the parties with the exception of those which are stood over pending further advice. Thank you very much for coming. Sorry it has been so long and difficult. We have to do our job, all of us and this matter stands adjourned.

ADJOURNED INDEFINITELY [3.05pm]