AG2003/6144, Transcript of Proceedings [2003] AIRCTrans 4177 (22 September 2003)

AUSCRIPT PTY LTD
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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

AG2003/6144

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Adelaide Painting and Decorating Co Pty
Limited and Another for certification of the
Adelaide Painting and Decorating Co Pty
Ltd/CFMEU Collective Agreement 2003

ADELAIDE

10.20 AM, FRIDAY, 5 SEPTEMBER 2003

PN1

MR M. HARRISON I appear with MR M. GAVA for the CFMEU. I regret that the employer is not here. We haven't informed him. We think that the notice from the Commission was mislaid in our office due to the chaos they are having with their new computers. Not that it goes into the computer, but the people that do the computers deal with the faxes as they come in. As it is the first we have lost in 10 years, I think we can mitigate our damage by seeking an adjournment in due course to the 12th, which I will discuss with your Honour's associate.

PN2

Prior to that I would seek to formally indicate we need to seek an extension of time and I would prefer to abate that pending the arrival next week of the employer, so that you can be assured as to the state of the workforce, bearing in mind there are 33 of them. It could well that some have gone and some have come in the meantime.

PN3

You had a policy in the recent past to state to us your misgivings as to the quality of the agreements we brought before you. It would be of a facility to us if you were to raise those issues now so we could discuss them. One assumes of course you have such issues, so to discuss them with the employer before next week.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Harrison. I'm quite happy to give you the various questions relative to the agreement about which I would seek clarification, subject to the question of the extension of time sought. The first question that I intended to raise with the parties related to clause 1.6, where there is a reference to any other similar award and the question that I have in that respect is whether the parties are able to advise me of what other awards they intend to reference through that scope and area clause of the agreement.

PN5

Clause 1.8 gives rise to an imminently predictable question based on other agreements insofar as I seek clarification from the parties that the intention of that particular provision is such that the provisions of the 1990 National Building and Construction Industry Award are to be relied upon with the exception of any monetary amounts, where the amounts specified for corresponding provisions in the 2000 award are to apply.

PN6

Clause 2.3, is the Grievance Of Dispute Procedure, gives rise to two questions. The first is whether the parties and, in particular the employer, can confirm to me the capacity for a person to be represented by a union or representative of their choice, and in relation to clause 2.3.8, I seek advice from the parties such that they can confirm which Tribunal they would understand is being referenced and what role they see that Tribunal as taking.

PN7

Clause 2.4, is relating to Demarcation Disputes. It gives rise to a question such that I would firstly understand that policy as generally available, or that procedure as generally available and, secondly, that the parties intend that any demarcation disputes would be resolved entirely by way of that procedure, rather than by reference to the Commission. I stress in that regard there is no right or wrong answer, save and except that I'm anxious to know that the parties have a common view.

PN8

Clause 2.5.1, represents a clause that the parties may need to consider very carefully. This dictates that:

PN9

All prospective and current employees will be strongly encouraged to join and maintain financial membership of the CFMEU.

PN10

My question relates particularly to the requirement that all prospective employees will be strongly encouraged to join the union. In that regard I would need some form of undertaking from the parties and, in particular the employer, such that it is made clear to prospective employees that union membership is not a pre-requisite for employment.

PN11

Clause 2.7, contains three separate provisions relative to subcontractors. I read each of those as simply indicative of an intention and that I read each of them as being an un-enforceable provision, but I seek clarification from the parties as to their intentions relative to that provision. Clause 2.8, refers to WorkCover matters. The second paragraph in 2.8, talks about the parties to the agreement having had the opportunity to discuss alternative employment. I simply seek clarification as to the extent to which those discussions are fundamentally focussed on employers and employees.

PN12

Clause 3.1.1, relates to Casual Employment, and it refers to employees being required to work an average of 36 ordinary hours per week. It gives rise to simply a question of clarification, given that the agreement refers to a 36-hour week, I'm simply seeking clarification from the parties as to their intentions regarding casual employment. The 36-hour week under the agreement comes into effect from a date that I'm not altogether sure of, but the provisions of clause 3.1.1, appear to indicate that it is in effect from the commencement of the agreement. In that same regard, the parties may want to consider 3.1.6, which simply adds some further level of confusion.

PN13

Clause 3.4, relates to Supplementary Labour, and the question that I have of the parties in that regard simply goes to the extent to which the parties can clarify that provision, so that I can be satisfied that it relates entirely to the employer/employee relationship. Clause 3.7.6, on page 11 - and please tell me if I'm going too quickly for you.

PN14

MR HARRISON: No, thanks.

PN15

THE SENIOR DEPUTY PRESIDENT: It references the Construction Industry Drug and Alcohol Policy. Can I be advised of whether that policy is readily available to employees covered by this agreement and whether the intention is to reference it as it may be amended from time to time? Now, clause 5 of the agreement relates to Hours Of Work. 5.3, relates to the Implementation of the 36-Hour Week.

PN16

5.3.4, is followed by a clause numbered 2.3.5. 2.3.5, talks of the Hourly Rate Divisor, changing from 11.59 pm on 31 May 2004, which is a date which is absolutely inconsistent with that set out in 4.1 and, hence, gives rise to a question about the intention of the parties in that regard.

PN17

MR HARRISON: Excuse me for a moment.

PN18

THE SENIOR DEPUTY PRESIDENT: Certainly. It looks to me as if that clause 2.3.5, is extracted, or has been extracted from another agreement.

PN19

MR HARRISON: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: Clause 8.2, talks of the development of a Training Program. I simply seek advice from the parties as to the time frame within which they expect that to be achieved.

PN21

MR HARRISON: 8.2?

PN22

THE SENIOR DEPUTY PRESIDENT: 8.2.

PN23

MR HARRISON: You want the training.

PN24

THE SENIOR DEPUTY PRESIDENT: Simply a question of the time frame. Clause 9.1.8, refers to the company's Occupational Health, Safety and Welfare Policy, which I presume is the same as the Industry Policy, but again it gives rise to a question, such that am I to understand that policy will be referred to in a form whereby it might be amended from time to time?

PN25

Clause 9.2.3, refers to the Industry Agreed Procedure On Inclement Weather, and I simply seek clarification that that procedure is available to all of the employees, or readily available to all of the employees to be covered by this agreement. The last question which is probably better described as an observation - - -

PN26

MR HARRISON: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: Sorry, it is not a last question. Is clause 10. I don't see that provision as precluding certification, but I do need to put the parties on notice that I am absolutely unclear as to the extent to which it represents an enforceable provision in that it appears to be saying that: wage increases that might, or might not be negotiated in the future will on the basis of this agreement, which would be replaced by a future agreement, be applied from the expiry or nominal expiry date of this agreement.

PN28

The question of whether it is an enforceable provision is clearly outside of my jurisdiction, but I thought it only fair to advise the parties that I have some difficulty seeing how it is a provision which could be relied upon with confidence. Finally, the signatory page of the agreement contains four employee - what I understand to be at any rate - employee signatories. I simply seek clarification as to whether or not they represent the employee and management representatives of the Enterprise Agreement Negotiating Committee.

PN29

MR HARRISON: One or the other.

PN30

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN31

MR HARRISON: One or the other, or both.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, either, I'm not particularly concerned, so long as I'm told. Mr Harrison, that might assist you in terms of clarifying those issues.

PN33

MR HARRISON: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: I particularly draw your attention to that 36-hour week question which appears to me to be a reasonably substantive confusion inherent in the agreement.

PN35

MR HARRISON: Yes, indeed. Well, I think we concede that much slipped between the cup and the lip there. I might say that we are six short of the record of 23, but we are improving.

PN36

THE SENIOR DEPUTY PRESIDENT: It is not a test, Mr Harrison. The test is, how frequently you need to come back in terms of disputes under the agreement.

PN37

MR HARRISON: Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: I will adjourn this matter and expect both parties to be present on the occasion of the next hearing, which will be at 2.30 pm on 11 September. I think you referred to the 12th. Do you have the 11th in your diary there?

PN39

MR HARRISON: Yes, I do.

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you. I will adjourn the matter accordingly.

ADJOURNED UNTIL THURSDAY, 11 SEPTEMBER 2003 [10.36am]