AG2003/6127, Transcript of Proceedings [2003] AIRCTrans 4031 (16 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/6127

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

Application under section 170LL of the Act
by Thiess Pty Limited and Another for certification
of the Thiess Crane Operations CSX Re-Build
Project Agreement

ADELAIDE

1.59 PM, THURSDAY, 28 AUGUST 2003

PN1

MR C. STARR: If it please the Commission, I appear for Thiess Proprietary Limited.

PN2

MR M. HARRISON: If it please the Commission, I appear for the CFMEU. We are here to support this application, if it please the Commission.

PN3

THE SENIOR DEPUTY PRESIDENT: I apologise to the parties for our delayed start and only wish it were not so. Mr Starr?

PN4

MR STARR: Thank you, sir. The application before you today is for the certification of a section 170LL Greenfields Agreement, titled the Thiess Crane Operations CSX Re-Build Project Agreement 2003. That has been reached following negotiations between Thiess Proprietary Limited and the Construction Forestry Mining and Energy Union Construction and General Division. By the way of brief explanation, Senior Deputy President, Thiess has been contracted to perform work on the copper solvent extraction facility at Western Mining Corporations Olympic Dam which includes the assembly facility at Woomera.

PN5

The project is extremely important to WMCs overall performance and the total contract is valued at approximately $70 million. I am advised the eventual number of crane drivers that will be covered by the agreement will be in the order of six or seven. As a consequence of the positive discussions between the parties, Thiess formed a positive attitude about the parties commitment to delivering this project without disruption and to the mutual benefit of all involved. The principle features of the agreement, sir, include a clear scope of the activity. Efficiency measures which include reference to utilisation of skills, project consultation and communication, continuous improvement and programming of work start and rest breaks.

PN6

Further the provisions relating to the abuse of alcohol and drugs, preference to the use of local and South Australian labour, competitive rates of pay and provision of camp and accommodation for non-locals. Relating to today's application, I can of course report that the required statutory declarations have been forwarded to the Commission and the agreement contains a disputes resolution procedure at clause 2.6 and a no extra claims provision at clause 1.5.

PN7

The agreement is underpinned by the National Metal and Engineering On Site Construction Industry Award 1989 and this is referred to in clause 1.7, and I submit with respect, there is no disadvantage in regard to the any reduction in the overall terms of the employees conditions of employment. In conclusion, sir, and upon formal certification today, it is the desire that the parties have the agreement to apply on and from 14 July 2003 and continue in operation until the completion of the project work on the project, or for 12 months, which ever is the sooner, and unless you have any queries of me, sir, I submit it for your certification today.

PN8

THE SENIOR DEPUTY PRESIDENT: Mr Starr, the agreement was reached about 13 or 14 of - 13 August?

PN9

MR STARR: Yes, sir.

PN10

THE SENIOR DEPUTY PRESIDENT: As you have indicated, the parties want it to apply from 14 July.

PN11

MR STARR: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Well, perhaps you can explain that logic to me?

PN13

MR STARR: Yes. Sir, as I understand it, there had been ongoing discussions between Thiess and the CFMEU for a good 4 or 5 weeks which would have put it back in the July time frame. There wasn't any changes as I understand it, to the original agreement, but there was explanations given by either party which eventually ended up with a meeting in Adelaide here of Thiess out of Perth and the CFMEU on the 12th where an explanation was given.

PN14

I understand that Mr O'Malley signed his stat dec in the agreement on the 12th. The document was subsequently sent back to Perth and they signed off on it on the 13th. So the words hadn't changed, but it had just taken that long for the agreement to be reached.

PN15

THE SENIOR DEPUTY PRESIDENT: Is there anybody employed under the agreement as we speak?

PN16

MR STARR: As we speak, yes, there is, sir.

PN17

THE SENIOR DEPUTY PRESIDENT: Well, when did that person or persons become employed?

PN18

MR STARR: Yes, the first crane driver I am advised, sir, was appointed on 15 August and subsequent to that, there were two further crane drivers appointed on 19 August and as I've already indicated, it is anticipated that six or seven crane drivers will eventually reflect the crew up there required. But at the time of agreement and the time of signing off, sir, my clear advice is that there are no employees.

PN19

THE SENIOR DEPUTY PRESIDENT: And am I to understand that the persons who have been employed since 15 August are new employees. That is they haven't been transferred from an existing Thiess work site?

PN20

MR STARR: That is my understanding, sir. I must say if - I am not across that information. I believe that they are new employees, I can check that out, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: You have to check that out but there are some other questions that I have a little later on that relate to the agreement. We will see how we go with those first of all. Thank you.

PN22

MR STARR: Okay.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Starr. Mr Harrison?

PN24

MR HARRISON: If it please the Commission, I move in support on the statutory declaration of Martin O'Malley of 12 August 2003. Might I say, I telephoned this morning Dan Roberts, our organiser on site at the moment and he confirmed the information my friend has just given you.

PN25

THE SENIOR DEPUTY PRESIDENT: I see, such that these are new employees rather than persons transferred from a Thiess facility?

PN26

MR HARRISON: I think one of his tasks is to meet these people for the first time.

PN27

THE SENIOR DEPUTY PRESIDENT: I see, thank you. I take it there is no canine coverage associated with this agreement, Mr Harrison?

PN28

MR HARRISON: Well, more importantly there are no photographs I suppose.

PN29

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, Mr Harrison, I propose to ask Mr Starr a number of questions about the agreement. I fully understand that you may or may not be in a position to respond on the part of the union, depending on my questions?

PN30

MR HARRISON: I think I will be able to on this occasion.

PN31

THE SENIOR DEPUTY PRESIDENT: Well, I'm not so sure about that, but we will wait and see. My questions don't invite either party to re-write the agreement but they do represent relevant factors that I will take into account in my decision in this respect. Can I take it that if I refer Mr Starr to the first of the dot points in clause 1.5, the intention there is to say that the employees will not pursue any extra wage claims?

PN32

MR STARR: That would be correct, sir, that would be correct obviously there is a typo or a missing word there, but clearly it is Thiess' intention and I'm sure the CFMEUs, that there is no extra claims of any sort.

PN33

MR HARRISON: I can confirm that.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 2.1 refers to in the last paragraph to a commitment to ensure that any issues that may arise extend to the project with other parties, will not lead to any disruption of work on the project covered by this agreement and further that parties to the agreement commit not to disrupt, presumably Western Mining Corporation Operations with respect to any matter or issue covered by the agreement. My question of the parties in that regard is, such that can you confirm to me that I should read that provision as simply an obligation that relates to the - or pertains to the relationship between the employer being Thiess and its employees?

PN35

MR STARR: Yes, sir, I can confirm that.

PN36

THE SENIOR DEPUTY PRESIDENT: So it does not extend beyond the scope of that employment arrangement?

PN37

MR STARR: No, sir.

PN38

MR HARRISON: I can confirm that also.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Starr, can you confirm to me such that if I look at clause 2.6 which is the dispute resolution procedures, and in particular subclauses (d) and (e) that any employee who may not be a member of the CFMEU or may not be a member of a union at all, has the capacity to be represented by a person or organisation of their choice?

PN40

MR STARR: Yes, I can, sir.

PN41

MR HARRISON: I can confirm that also.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison. And in clause 2.8 both (a) and (b) can you also confirm to me that an employee can elect to be represented by any union or person of their choice?

PN43

MR STARR: Yes, I can, sir.

PN44

MR HARRISON: I confirm that also.

PN45

THE SENIOR DEPUTY PRESIDENT: And the same I presume in (c)?

PN46

MR STARR: Yes, sir.

PN47

THE SENIOR DEPUTY PRESIDENT: Clause 2.10 gives rise to a question such that am I to understand that the site policy is readily available to the employees who are engaged under this agreement and that the reference to that policy should be read such that it refers to the policy as it maybe amended from time to time during the life of the agreement?

PN48

MR STARR: I would confirm that, sir, and by way of additional comment, say that there is a very comprehensive policy applying at WFCs operations at Olympic Dam which apply to all contractors and there is a - I think it is a full induction before employees go on.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes.

PN50

MR HARRISON: I confirm that.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 2.12 refers first of all, to the personal code of conduct adopted for the project. Secondly, to the site safety and health regulations. And thirdly to the site work rules and accommodation rules. Am I to assume that all those materials are readily available to employees - - -

PN52

MR STARR: Yes, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: - - - and that the reference is intended to allow for variation of those documents during the life of the agreement?

PN54

MR STARR: That is so, sir.

PN55

MR HARRISON: I confirm that.

PN56

THE SENIOR DEPUTY PRESIDENT: Clause 3.10 relates to income protection insurance. It refers in the last sentence to the cover being provided by the relevant policy conditions issued by IUS. How should I understand that provision?

PN57

MR STARR: Sir, I haven't been provided with a copy of that cover provision. Would it assist if in fact I were able to supply the Commission with a copy of that.

PN58

THE SENIOR DEPUTY PRESIDENT: Well, it would assist me. What would assist me even more would be if you were to provide it to Mr Harrison first of so that he could confirm your collective understanding.

PN59

MR HARRISON: Well, we are conversant with this, what it means is that any policy conditions really become part of this EBA.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, well, that means that if we - if I have a copy of the policy as I understand it, then I would attach it to the Commission's file.

PN61

MR HARRISON: Of course, yes.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR STARR: If I undertook, sir, to provide the Commission with a copy and of course Mr Harrison.

PN64

THE SENIOR DEPUTY PRESIDENT: Mr Harrison might even be in a better position to provide you with a copy, Mr Starr.

PN65

MR STARR: Indeed.

PN66

THE SENIOR DEPUTY PRESIDENT: I'm not particularly concerned as to who provides it to me first of all.

PN67

MR HARRISON: We may as well - for completeness.

PN68

THE SENIOR DEPUTY PRESIDENT: Now, clause 4 and in particular, 4.1(a) and (b) refer to casual employment. Clause 1.3 in the agreement indicates the agreement only applies to employees engaged full time on the project. It gives rise to a question as to how should I understand the reference to casual employment, is it provided for in the terms of the agreement? Or is employment simply to be as appears to be indicated in 1.3 limited to employment of a full time nature?

PN69

MR STARR: Can I just have a moment with that one, sir?

PN70

THE SENIOR DEPUTY PRESIDENT: You certainly can. Mr Starr, I'm happy to allow the parties to consult on that question. I'm equally happy to complete my questions. It maybe that you need a little time to come back on at least one of my later questions?

PN71

MR STARR: Okay, thank you, sir.

PN72

THE SENIOR DEPUTY PRESIDENT: So that rather than necessarily hurrying along an agreement on this matter. It maybe that you can resolve it before the conclusion of this hearing and I shall certainly give you that opportunity. Clause 4.3 - let me re-phrase that. Clause 4.2 stipulates the work cycle. Clause 4.3 refers to ordinary hours of work being 38 per week and to a single rostered day off in a 4 week cycle. Clause 4.4 seems to introduce a different arrangement effective from 1 January 2004 so as to provide for a credit equating to .4 of an hour on a daily basis.

PN73

That would appear to be consistent with a 36 hour week which is not referred to elsewhere in the agreement. Can you advise me of the intention of the parties?

PN74

MR STARR: Yes, sir, it is my understanding that the 38 hour week is and will be worked for the duration of the contract in 2003. I'm advised, sir, that it is Thiess hopes that contract will be completed in November this year, if not in December and not go into 2003. However as I understand it, sir, the - - -

PN75

THE SENIOR DEPUTY PRESIDENT: Not go into 2004.

PN76

MR STARR: Sorry, 2004, that as I understand it, because there was some unsurety over that whether in fact commissioning rolled into 2004 there was a request and obviously a concession made by Thiess that this reference to .4 would apply in 2004. But I am advised, sir, by Thiess that they are extremely hopeful of being out of the contract in 2003.

PN77

THE SENIOR DEPUTY PRESIDENT: Understanding that hope, in the event the work continued on after 1 January 2004, then how should I understand the intention of the parties with respect to that additional .4 of an hour to be accumulated on a daily basis given the work pattern or roster cycle which is set out in 4.2?

PN78

MR STARR: My understanding that 4.2 which will continue, it is a 38 hour week but there is a payment if you like, or an additional payment of .4 hours per day for any days in 2004. So it does not reduce to a 36 hour week is my understanding of the arrangement, sir. I must say I personally wasn't involved in the negotiations.

PN79

THE SENIOR DEPUTY PRESIDENT: I see. Is it going to be necessary for you to clarify this with your client?

PN80

MR STARR: I can do so, sir, in fact I'm clarifying other things, I can do this one as well.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Harrison, is your position consistent with Mr Starr's understanding?

PN82

MR HARRISON: Yes, I don't think there is any difference - the 36 hours will apply after 1 January '04, this is sort of Tony Abbott Memorial I think, and what will happen is that the job will finish before that event.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, look I understand that both parties expect the job to finish before then. I have actually heard somewhere of projects going a little longer than anticipated - - -

PN84

MR HARRISON: Yes, well - - -

PN85

THE SENIOR DEPUTY PRESIDENT: - - - and I thought from an abundance of caution I should perhaps clarify the intention in that regard.

PN86

MR HARRISON: Well, we could do a bit of exchange of letters.

PN87

THE SENIOR DEPUTY PRESIDENT: Well, I think if the parties could confirm to me their understanding of the arrangement, then once again I could incorporate that on the Commission's file.

PN88

MR HARRISON: Well, this is our understanding that as from 1 January '04 if the job is still going, then it will be a 36 hour week.

PN89

THE SENIOR DEPUTY PRESIDENT: And how does - - -

PN90

MR HARRISON: Subject mutatis mutandis to all that it entails.

PN91

THE SENIOR DEPUTY PRESIDENT: How would that then relate to the work cycle which is stipulated in 4.2?

PN92

MR HARRISON: Well, simply that you apply that in principle to the variation in the determination of the hours. In other words, you have got extra RDOs.

PN93

THE SENIOR DEPUTY PRESIDENT: So that employees would then be working 27 days on and 8 days off. Is that the way it would work?

PN94

MR HARRISON: Well, that is the necessary limitation.

PN95

THE SENIOR DEPUTY PRESIDENT: I'm asking the questions, I'm not able to answer them, that is why I'm asking.

PN96

MR HARRISON: No, well, I don't think there will be any dispute on how you apply it. I mean, you have had a number of these agreements before you now where they jump from the notion of an RDO to a leisure day, for the want of a better term.

PN97

MR STARR: Maybe if I could be of assistance, sir, and I appreciate that Mark is at a disadvantage insofar as not having a copy of the documents in front of him, but if I took you sir to 4.4(b), where effectively those point 4 of an hour - - -

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Harrison does not have a copy of the agreement before him?

PN99

MR HARRISON: No, he does not.

PN100

THE SENIOR DEPUTY PRESIDENT: Well, look, it might be best if I loaned him a copy from my file and, sorry, I wasn't aware of that dilemma.

PN101

MR HARRISON: I'm indebted to you.

PN102

MR STARR: The intention of the parties is recorded in 4.4(b), sir, is that the bank of hours if you like, whatever they might be, from January 1 2004, will in fact become payable following the completion of the assignment, so those bank if you like will be paid out.

PN103

THE SENIOR DEPUTY PRESIDENT: I see, yes. No, I can understand now the - - -

PN104

MR HARRISON: That is right.

PN105

THE SENIOR DEPUTY PRESIDENT: - - - your expectation then that that additional .4 of an hour to be accumulated for each day worked on site on or after 1 January 2004, would then be paid out in the first full pay period following the employee completing their assignment on the project.

PN106

MR STARR: That is right, as opposed to taking another RDO.

PN107

MR HARRISON: Yes, I agree with that interpretation.

PN108

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, that certainly clarifies that issue. Now, can I take you to clause 4.12, which is the clause where I have anticipated the parties may need a little time to address me. This relates to the union right of entry provisions. The parties may or may not be aware that Senior Deputy President Cartwright handed down a decision, the Print number of which escapes me at the moment but I'm happy for my staff to let both parties know at some stage in the next day or so, that related to the certification of an agreement impacting on, from memory, Unilever.

PN109

I understand the decision is currently the subject of an appeal. The decision in effect determined that a right of entry clause, which I do need to say is somewhat different to that which is pressed in this document, but related in Senior Deputy President Cartwright's opinion to matters which did not pertain to the employment relationship pursuant to section 170LI of the Act.

PN110

In that context I thought it only fair to advise the parties of the potential for a difficulty in that regard and to give both parties the opportunity to ensure that they had read Senior Deputy President Cartwright's decision and were in a position where they could, should they choose to do so, make a submission to me in that regard, or alternatively to consider whether or not there is any other approach that they propose to me relative to the question that is now posed over the concept of a union right of entry clause in an agreement for certification.

PN111

MR HARRISON: Well, I wonder if I could answer that.

PN112

THE SENIOR DEPUTY PRESIDENT: You can answer that, Mr Harrison.

PN113

MR HARRISON: Well, it is our right of entry. It is our submission that what we are doing there is merely codifying what is already the law. It does not really go past A, that the union officials will be subject to the right of entry - provisions of the Workplace Relations Act - and its limitations. What B does is merely make a declaration as to how we will go about exercising those rights, for example, it would be silly on a mining site not to take notice of the peculiarities of the dangers involved there, which is somewhat different than going into a building yard for example.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you are saying to me, Mr Harrison. It might be appropriate that I refer you to Senior Deputy President Cartwright's decision.

PN115

MR HARRISON: Yes, sir.

PN116

THE SENIOR DEPUTY PRESIDENT: Before I take your words as expressing a final view on the part of the union relative to this matter.

PN117

MR HARRISON: Well, it is not so much the union's view as an employee view. Well, this is the rights given to the employees, vis a vis their employer, and what is done here is that the employees agents are to be governed by the law as expressed under the Workplace Relations Act, plus some understanding as to the guidelines that are to be applied when given access to their agents. It is my submission that whatever is in the learned Member of the Commission's judgment, subject to the appeal, could fly in the face of this.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Mr Starr, have you got a view on this matter? Once again, I reiterate I'm inviting both parties to take the time out to read the decision to which I've referred to you before perhaps advising me of whether or not you wish to make any further submissions, or propose any alternatives.

PN119

MR STARR: Senior Deputy President the only - and I haven't read Senior Deputy President Cartwright's decision, which I should do so - but I did speak to Thiess this morning anticipating a question that might be raised in regard to that, but my instruction from Thiess is that - and my instructions are that it is meant as a reflection of how the parties are going to implement the provisions of the Workplace Relations Act and the parties intention was not to add or detract from what the Workplace Relations Act says. Now, they were my instructions sir but I'm happy to read that decision before I go any further.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes. What I propose to do in this regard is to advise the parties now that I'm satisfied that the agreement meets the requirements of section 170LL of the Act, insofar as it relates to a Greenfields agreement. I can also advise the parties that I'm satisfied that the agreement meets the requirements of the Act in that it is consistent with the no disadvantage test, that it contains the requisite dispute resolution provision, the operation of which the parties have this afternoon clarified.

PN121

The agreement is of a duration envisaged by the Act. The agreement may or may not meet the requirements of the Act insofar as I determine that it is consistent with the Act and, in particular, with the requirements set out in section 170LI of the Act, such that it relates to matters pertaining to the relationship between the employer and the employees.

PN122

I do not propose to reach a conclusion on this matter until at minimum I've given the parties a period of seven days, wherein they would have the opportunity should they wish to do so, to present any further written submission, which could indeed be a combined submission. There is certainly no obligation on either party to submit anything further to me, but I thought it only fair that I give the parties the opportunity to at least peruse the decision to which I have referred.

PN123

In the event that either party having perused that decision wanted the matter to be called on again, I can indicate that I will do so at relatively short notice and that it may be more suitable to the parties to address me in relation to this matter, rather than simply relying on written submissions.

PN124

MR HARRISON: And you have in mind 4.12.

PN125

THE SENIOR DEPUTY PRESIDENT: Specifically, the right of entry in that regard, Mr Harrison. I'm at pains to point out I have no view on that matter at all, other than to foreshadow to the parties that it may or may not be an impediment to certification of the agreement. In the event that I can certify the agreement, I would propose to do so from the date upon which I receive any written advice, or in a week's time from today. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [2.30pm]