AG2003/1156, Transcript of Proceedings [2003] AIRCTrans 4056 (16 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 4460

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/1156, 1365, 1372, 2133,
4370, 4371, 6245, 6355, 6468,
6518-6520 and 6696

APPLICATIONS FOR CERTIFICATION OF
AGREEMENT

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 various
agreements

MELBOURNE

11.08 AM, THURSDAY, 28 AUGUST 2003

PN1

MR B. FITTON: I appear for the CEPU Plumbing Division.

PN2

MS K. RICHARDS: I am from the Victorian Employers Chamber of Commerce and Industry. I appear for AAA Premier Roofing in this matter, which is number 6245.

PN3

MR P. VERBERNE: I appear on behalf of AG Coombs in matter 1156 with MR R. FEARNE.

PN4

MR C. HARNATH: I am from the Master Plumbers and Mechanical Services Association of Australia and appear in matters 4370 and 4371.

PN5

THE DEPUTY PRESIDENT: Dealing firstly with Mr Verberne's matters, if I can call them that, matters 1111, 1155, 1156, 1365, 1372 and 2133. Mr Fitton, I think those are all your matters, aren't they?

AG2003/1156, 1365, 1372 and 2133

AG COOMBS PTY LTD AND CEPU ENTERPRISE AGREEMENT 2002-2005

AUSTRALIAN PROFESSIONAL AIRCONDITIONING PTY LTD CEPU ENTERPRISE AGREEMENT 2002-2005

RUDDY BROTHERS CONTRACTING PTY LTD CEPU ENTERPRISE AGREEMENT 2002-2005

FRENCH ELECTRICAL SERVICES ENTERPRISE BARGAINING AGREEMENT 2000-2003

Applications by the CEPU

PN6

MR FITTON: They are, your Honour. These are all agreements which have an expiry date of less than three years. The agreements all contain a disputes resolution clause. The CEPU is entitled to represent members and does have members with the various employers. The employees have endorsed the agreements. The agreement passes the no disadvantage test and a valid majority has supported them and we would ask the Commission to certify these agreements, your Honour.

PN7

THE DEPUTY PRESIDENT: Right, Mr Fitton. First of all, I note that matter 1111 and 1155 have been withdrawn. Secondly, matter 1365 and 1372 were lodged during the electronic lodgment trial period, I think on the basis that signed original documents would be therefore be handed up today. Do you have those signed original documents in those two matters, 1372 and 1365?

PN8

MR FITTON: I do not have the original documents with me, your Honour. I will go back to our office and if you could grant me the leave, I would render them to the Commission.

PN9

THE DEPUTY PRESIDENT: Thank you. So we will leave it on the basis that you will provide the signed originals. I think the difficulty is that each of these agreements has a bargaining agent's fee in it, Mr Fitton. I think there is some legislation which is now relevant.

PN10

MR FITTON: If there are bargaining agent's fees in the agreements, well, we may have to - - -

PN11

THE DEPUTY PRESIDENT: I will just check that. I think that is correct. Yes, clause 17 is the bargaining agent's fee and I think I am now prevented by the Act from certifying agreements with a bargaining agent's fee in them.

PN12

MR FITTON: It would not be our intention, your Honour, to put up agreements - and I can't understand how that occurred with that clause in.

PN13

THE DEPUTY PRESIDENT: Correct me if I am wrong, but aren't these leftovers from previous hearings or something of that sort?

PN14

MR FITTON: They could well be. I would have to investigate. I wouldn't know.

PN15

THE DEPUTY PRESIDENT: They were lodged in 2002. Well, I think the options are this. First of all I can dismiss them on the basis of the Act. Secondly, I can give you time to vary them. You will need to put the variation, have it approved by a majority in each workplace, do it by letter or however you do these things, and then come back and advise the Commission in writing what you have done and then they may be certifiable, or thirdly, you can have an argument about the legislation if you wish. So those are the three options you have. Which would you prefer?

PN16

MR FITTON: The third I am not too keen about, your Honour. I think the second option would be the obvious option for us to take and if his Honour would allow us to take that option I will respond.

PN17

THE DEPUTY PRESIDENT: Thank you very much.

PN18

MR FITTON: Thank your Honour.

PN19

THE DEPUTY PRESIDENT: Mr Verberne, is your matter - I think that has a bargaining agent's fee too, doesn't it?

PN20

MR VERBERNE: Yes, your Honour. In regard to matter AG2003/1156 we have tendered the appropriate statutory declarations both by ourselves and by the union. The agreement does contain a disputes settling clause and it is for a period of less than three years. I would ask that your Honour certifies the agreement in the terms sought. I believe, your Honour, that it may be out of time.

PN21

THE DEPUTY PRESIDENT: Six weeks out of time, yes.

PN22

MR VERBERNE: Yes. Your Honour, I would then also ask you for your discretion to certify the agreement in relation to section 111(1)(r), where I understand that you can go ahead and certify the agreement, despite the fact that it has been lodged out of time. Your Honour, I have got Mr Fearne from AG Coombs here today, who would be able to verify for the record that there has been no substantial change in regard to the employees and that the delays were ones that were of an administrative nature caused by AMCA, for whom I work. If your Honour pleases.

PN23

THE DEPUTY PRESIDENT: Mr Verberne, that agreement also has a bargaining agent's fee in it, so it suffers from the same problem, that there is now a provision in the Act preventing me, I think, certifying it. So in relation to that matter we have one of three options. One is I can dismiss it. The second is it can be varied by deleting the bargaining agent's fee. That variation will be need to be approved by a valid majority in the workplace. And the third option is we can have a discussion about the Act. So I think Mr Fitton has suggested that he would like to vary that agreement and have that variation approved by a valid majority. Are you in agreement with that submission or do you propose something different?

PN24

MR VERBERNE: No, I certainly wouldn't propose anything different. I am absolutely stunned and stupefied and speechless, which is very unusual for me, your Honour, that this agreement - I can't understand how this agreement has still come through the system with the bargaining agent's fee clause in it. I think Mr Fitton was of the same mind in regard to the agreements you were discussing with him. I did mention to your associate before we commenced proceedings that I hadn't actually received formal notification of this matter in my office at all and it just makes me wonder whether or not the two matters were interlinked.

PN25

Let me assure you, your Honour, that I would be happy to withdraw the bargaining agent's fee clause from the agreement. I am sure that the agreement that I have in my office that has been signed by both the union and by the employer has had the bargaining agent's fee clause deleted from it. I can also assure your Honour that the statutory declaration that has been provided by the two organisations, by both the union and by the organisation, AG Coombs, were on the basis that we had received approval of the employees after the bargaining agent's fee clause had been deleted. If your Honour pleases.

PN26

THE DEPUTY PRESIDENT: Yes, I have a record that you were notified on 21 August 2003 at 3.06 pm, Mr Verberne, so I can't take that issue any further. So I think - - -

PN27

MR VERBERNE: What I think the problem is, your Honour, that when we had lodged a number of agreements when the agreement was first agreed between the union and ourselves and there were a number of lodgments made at that stage, subsequent to that, of course, the Commission determined that the bargaining agent's fee clause was inappropriate to be included in these agreements. I understood we had withdrawn all of those agreements that contained the bargaining agent's fee clause and that is why again I am at a loss as to why this one has appeared in the way it has.

PN28

THE DEPUTY PRESIDENT: Whatever the explanation is, the course of action we will take is that the matter will be adjourned to enable the parties to vary the award following the processes in the Act for variation of awards. As to the extension of time, I need to be satisfied of two things. You said you have Mr Fearne, is it?

PN29

MR VERBERNE: Mr Fearne, yes.

PN30

THE DEPUTY PRESIDENT: Yes. Well, it is substantially out of time, so I need to be - either a statutory declaration of two things; first of all, an explanation for the delay and, secondly, a submission relating to whether the composition of the workforce has changed. You can do that in two forms. You can have Mr Fearne give evidence of those matters now, since he is here, sworn evidence, or you can save time and file a statutory declaration, whichever suits you, Mr Verberne.

PN31

MR VERBERNE: Well, I would have thought, your Honour, that having Mr Fearne here would have been the logical way to go.

PN32

THE DEPUTY PRESIDENT: All right. Fine.

PN33

MR VERBERNE: But can you just tell me if you have the application there, what is the date of the application when I would have lodged it?

PN34

THE DEPUTY PRESIDENT: February 2002 it was lodged.

PN35

MR VERBERNE: Yes. My understanding was that this one, amongst I think it would have been about another 15 others, would have all been withdrawn.

PN36

THE DEPUTY PRESIDENT: Yes. Well, we have got no record of a withdrawal.

PN37

MR VERBERNE: No, obviously. Otherwise we wouldn't be here, your Honour.

PN38

THE DEPUTY PRESIDENT: That is right.

PN39

MR VERBERNE: Well, I am happy to put Mr Fearne in the box now if that is convenient, your Honour, and very quickly, I am sure, we will be able to move him forward to - - -

PN40

THE DEPUTY PRESIDENT: Of course.

ROSS FEARNE, sworn [11.22am]

EXAMINATION-IN-CHIEF BY MR VERBERNE

PN41

MR VERBERNE: Mr Fearne, for the record, could you state your name and your position with AG Coombs, please?---Ross Fearne. I am in charge of management support services for the group of companies.

PN42

The concern we have here today is in relation to the certified agreement being lodged out of time. Could you confirm to his Honour that the employees that are with AG Coombs now have not substantially changed from when the agreement was first agreed and approved by the valid majority?---We had two approvals of agreements. We had an agreement approved earlier this year that involved the employees as at January this year. Subsequently, we had a separate vote from the employees when the matter of the bargaining agent's fee was declared illegal and all of the employees at that time voted to accept the amended agreement. We have had no changes, other than one termination, since the time of that agreement of our employees.

PN43

So you can definitely confirm to his Honour that the employees have (a) agreed to the agreement post the deletion of the bargaining agent's fee clause?---That is correct. They agreed to the original agreement, which included the bargaining agent's fees, and subsequent amendment to the agreement which withdrew the bargaining agent's fees clause.

PN44

Thank you. I think, your Honour, I would like to submit that that would complete the range of concerns that you might have in regard to the agreement, if your Honour pleases.

PN45

THE DEPUTY PRESIDENT: Sorry, I haven't heard anything about the reasons for the delay, the six-week delay, which is the second leg of the test I am required to be satisfied of under the TNT test, if I could call it that.

PN46

MR VERBERNE: Well, the delays weren't caused by Mr Fearne and I can certainly say that the delays were caused in - sorry to say this, Mr Fitton, but they were caused partially with Mr Fitton's office at the time and partially, certainly, in my office as well, and I think it was primarily because of the bargaining agent's fee being cancelled that it threw us into some disarray. As I mentioned to you before, this agreement coming up before you now in the terms that it is in strikes me as though that there has been some confusion there. So that is the excuse for that, if I may put it that way. If your Honour pleases.

PN47

THE DEPUTY PRESIDENT: All right. Thank you very much for giving evidence. You are excused?---Thank you.

THE WITNESS WITHDREW [11.22am]

PN48

THE DEPUTY PRESIDENT: So where we have left with that agreement is that it is adjourned, is it, to enable the bargaining agent's fee clause to be removed?

PN49

MR VERBERNE: Well, I think that as you heard from Mr Fearne that the employees have agreed to and have approved the document without the bargaining agent's fee clause in it. I can this afternoon, your Honour, resubmit the agreement with that clause deleted and I think you will see that it has been signed by the parties, as required by the Act. And so I can provide that documentation for the Commission.

PN50

THE DEPUTY PRESIDENT: All right. Thank you. Why don't you do that and we will adjourn it on that basis. If I am satisfied on the basis of the evidence put today and the documents you supply relating to it, I will certify it. Otherwise, the matter will be dealt with having regard to what the documents say. Matters 1156, 1365, 1372 and 2133 are adjourned and I await advice from both Mr Fitton and Mr Verberne.

PN51

MR VERBERNE: Your Honour, that is the only matter I have before you, so if I may be excused.

PN52

THE DEPUTY PRESIDENT: Thank you very much. You are excused, Mr Verberne.

AG2003/4370, 4371, 6245, 6355, 6468, 6518-6520 and 6696

McLEAN AND BOAKES AND CEPU ENTERPRISE
AGREEMENT 2002-2005

STEPHENSON PLUMBING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

AAA PREMIER ROOFING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

DBL ENGINEERING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

CROFT CONTRACTING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

ECONOPUMP SERVICES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

DEPENDABLE PLUMBING AND DRAINAGE PTY LTD
AND CEPU ENTERPRISE AGREEMENT 2002-2005

FA PETZKE SERVICES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

LORNE PLUMBING SERVICES AND CEPU
ENTERPRISE AGREEMENT 2002-2005

Applications by the CEPU Plumbing Division

PN53

MR B. FITTON: I appear for the CEPU Plumbing Division.

PN54

THE DEPUTY PRESIDENT: In all matters? Thank you, Mr Fitton.

PN55

MR C. HARNATH: I appear for the Master Plumbers and Mechanical Services Association of Australia in matters 4370 and 4371 and I would seek to make submissions in regard to those if that would satisfy the Commission.

PN56

MS K. RICHARDS: I appear on behalf of VECCI, who represents AAA Premier Roofing in matter number 6245.

PN57

THE DEPUTY PRESIDENT: Who would like to start?

PN58

MR FITTON: If I might, your Honour. These agreements have a nominal expiry date less than three years. The agreements contain a disputes resolution clause. The CEPU Plumbing Division is entitled to represent the employees and we do have members of our union as employees. They have been endorsed by a valid majority of those employees. The agreement passes the no disadvantage test and the application conforms with the requirements of the Act. I would support the certification of these agreements, your Honour.

PN59

THE DEPUTY PRESIDENT: A number of them are out of time, Mr Fitton: 6355 is eight weeks out of time; 6468 is four days out of time; 6519 is five days out of time; 6520 is 21 days out of time. In relation to 6355, which is eight weeks out of time, it is substantially out of time. I need a statutory declaration from you dealing with two issues: first of all, an explanation of the reasons for the delay and, secondly, evidence relating to any changes to the composition of the workforce and their relevance or otherwise to the valid majority approval. All right? So I will - - -

PN60

MR FITTON: I undertake to provide that.

PN61

THE DEPUTY PRESIDENT: Thank you very much, Mr Fitton.

PN62

MR FITTON: With regard to the other matters which are out of time, I would ask his Honour to use his discretionary powers.

PN63

THE DEPUTY PRESIDENT: Okay. But before I do that, I will need a submission from you as to the same two matters from the bar table: first of all, an explanation of the reasons for the delay and, secondly, a statement as to whether the composition of the workforce has changed since the agreement was approved by a valid majority. If you don't have that information today, again, we could adjourn those matters and you can provide it to me in writing, whichever suits you.

PN64

MR FITTON: I would be quite confident with those other matters that in the period the composition of the labour force would not have changed and so, therefore, the valid majority would still have supported - - -

PN65

THE DEPUTY PRESIDENT: Yes, but I need definite information. I am sorry, Mr Fitton. I am sure you may well probably be correct but I simply need it to be checked and a - - -

PN66

MR FITTON: I will undertake to do that.

PN67

THE DEPUTY PRESIDENT: Thank you very much.

PN68

MR FITTON: And would you require a statutory declaration for that information?

PN69

THE DEPUTY PRESIDENT: Well, the practice I usually follow, rightly or wrongly, is for the shorter periods I don't require a statutory declaration, simply advice as to the facts. So I will just go through that. In matter 6355 it is eight weeks out of time. I require a statutory declaration explaining the two things I have mentioned. In 6468, 6519 and 6520 I simply require written advice from you. Thank you very much.

PN70

MR FITTON: Thank you, your Honour.

PN71

MR HARNATH: Your Honour, the two matters that I appear in are applications made by the association on behalf of the two members. It is the belief - and the advice of my members that in both matters they have completed all steps required under the Workplace Relations Act and, of course, answered the appropriate questions in the statutory declarations attached to the applications filed electronically with the Commission. As such, your Honour, we seek the Commission certify the documents accordingly. If the Commission pleases.

PN72

THE DEPUTY PRESIDENT: Thank you very much. Ms Richards?

PN73

MS RICHARDS: If the Commission pleases, in the matter AAA Premier Roofing, you will also note that that matter, I believe, is two weeks out of time.

PN74

THE DEPUTY PRESIDENT: Yes, I missed that. Thank you for pointing that out.

PN75

MS RICHARDS: The reason for the delay is just administrative delays passing documents between VECCI and the union and then submitting to the Commission. I do have, however, a letter from Premier Roofing. It is not a statutory declaration but it is a letter from Premier Roofing indicating that the composition of the workforce hasn't changed in that two-week period, that I would like to hand up and I also have a copy of that for the union. We would ask the Commission to exercise its discretion under section 111(1)(r) of the Workplace Relations Act to extend time for the lodgment of this application and we also support the submissions of the CEPU in respect of all other matters. If the Commission pleases.

EXHIBIT #R1 STATEMENT OF MR CHRIS FOWLER OF AAA PREMIER ROOFING INDICATING COMPOSITION OF WORKFORCE IS UNCHANGED

PN76

THE DEPUTY PRESIDENT: Mr Fitton, I will just make one further point if I could. Now is not the time but at some stage the High Court is going to hear and determine an appeal from the Full Court decision in Electrolux that may or may not require some argument relating to appendix C of your standard agreement. I won't take it any further at this stage - now is not the time - but I just draw your attention to that. All right?

PN77

MR FITTON: Electrolux. Thank you, your Honour. I will take that - - -

PN78

THE DEPUTY PRESIDENT: And I think that applies to all the agreements. Now is not the time, though. So first of all, I will extend time in matter 6245 as sought by Ms Richards. Secondly, I will certify the agreements in matters 4370, 4371, 6245 and 6518 on the basis of the submissions put today and the statutory declarations filed. Matters 6355, 6468, 6519 and 6520 are adjourned awaiting advice from Mr Fitton as to a number of matters. These matters stand adjourned.

ADJOURNED ACCORDINGLY [11.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 STATEMENT OF MR CHRIS FOWLER OF AAA PREMIER ROOFING INDICATING COMPOSITION OF WORKFORCE IS UNCHANGED PN76