AG2003/6156, Transcript of Proceedings [2003] AIRCTrans 4401 (1 October 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

AG2003/6156

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Nilsen Electric (SA) Pty Limited and
Another for certification of Nilsen Electric
(SA) Pty Limited - Contracting Division KCA 5
Upgrade Project Agreement 2002

ADELAIDE

9.40 AM, WEDNESDAY, 17 SEPTEMBER 2002

PN1

MR S. PRIEST: I appear for the company in this matter.

PN2

MR W. DEAKIN: I appear on behalf of the CPEU Electrical Division.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Deakin. Mr Priest?

PN4

MR PRIEST: Commissioner, the company in this application before you is a member of the National Electrical Communication Association, which by that association makes them respondent to the National Electrical, Electronic, Communications, Contracting Industry Award of 1998 for the electrical workers covered by this agreement. We believe, sir, that the provisions as required by Part VIB of the Workplace Relations Act have been complied with, as testified by the statutory declaration from the company and that is signed by Mr Robert Geraghty of the CPEU.

PN5

In relation to the specific requirements of the Act, the agreement as inserted does not disadvantage the employees covered by the agreement. The terms and conditions of this agreement have been explained and discussed with the employees extensively and, as I understand it, the employees have a very clear and precise understanding of the agreement. As testified in the statutory declarations, the agreement was approved by a unanimous vote of employees on 30 July, 2003 and the signing of the document was not completed until 1 September, 2003.

PN6

On behalf of the CPEU and the company I would like to apologise for the delay in the signing and lodgment of the document. There was some delay getting it back from Mount Gambier from the guys with communication, I'm not quite sure, but it was a logistical issue that I was aware of. We ask that the Commission use its powers under section 111 of the Act to extend the time prescribed. In regards to the constitution of the work-force, in the time since the vote until lodgement I have been informed that the number of employees did increase during that time but that each employee was presented with a copy of the agreement before accepting employment.

PN7

They were walked through each clause individually so they would have a full understanding of that agreement and it is my understanding that no employee accepted employment without first accepting the terms and conditions of that agreement. So it is my understanding that all employees currently employed support the agreement as well.

PN8

THE SENIOR DEPUTY PRESIDENT: Mr Priest, how many employees were to be covered by the agreement at the day of the vote, being 30 July?

PN9

MR PRIEST: 30 July, 26 employees voted unanimously to accept the agreement.

PN10

THE SENIOR DEPUTY PRESIDENT: And how many employees were engaged on the project as of 2 September?

PN11

MR PRIEST: 57 employees, which included the core 36 that were employed at the time of the vote.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Priest.

PN13

MR PRIEST: The agreement contains in clause 2.2, the dispute settlement procedure that contains reference to the Australian Industrial Relations Commission's role in any dispute by way of conciliation and arbitration and the nominal expiry date of the agreement is found in clause 1.6 and is the later of 2 years after certification or until project completion and it is acknowledged that the nominal expiry date cannot extend beyond 3 years. To conclude, sir, it is my submission that the agreement before you was developed in compliance with the Act. Its contents satisfies the requirements of the Act and we seek therefore the Commission's certification of the agreement effective from today's date, if the Commission pleases.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Priest. Mr Deakin?

PN15

MR DEAKIN: Sir, I concur with Mr Priest. The document that is in front of you is a superior document than the company's normal enterprise agreement. It is a good agreement and I think I would agree with Mr Priest that the document was voted upon and I have taken them through every clause of the document at a time and it was agreed to and accepted and voted on. So we would seek that the agreement to be certified today, sir.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, what can you tell me about the way in which the vote on 30 July was conducted? Was it show of hands, was it a secret ballot or was it some other voting mechanism?

PN17

MR DEAKIN: I wasn't there at that point in time, sir, but I believe it was a show of hands. I'm not quite sure - I wouldn't - but the boys voted, told me that they agreed with the documents. But I personally wasn't there. I would have to get in contact with Jason Wilder, who is in Queensland at the moment, on the vote.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, what is of concern to me is that between 30 July and 2 September there was quite a substantial change in the make-up of the work-force.

PN19

MR DEAKIN: Yes sir.

PN20

THE SENIOR DEPUTY PRESIDENT: You would well know from other matters that the issue of who is enabled or who is allowed to vote and how that vote is conducted has, on many occasions, been the subject of some disputation.

PN21

MR DEAKIN: Sir, going back on the history of Nilsens on how they vote, I would bet you a pound to a penny it was a secret ballot. I mean, I should have known that. That is Nilsen's. They always have a secret ballot. They always go through a doctrine and have a secret ballot, sometimes to the annoyance of some of the officials of the unions, but they do. They always have a secret ballot and I should have remembered that but they never do - - -

PN22

THE SENIOR DEPUTY PRESIDENT: So you are now saying that the vote on the 30th would have been a secret ballot?

PN23

MR DEAKIN: Yes sir. No, I would bet you a pound to a penny it would have been.

PN24

THE SENIOR DEPUTY PRESIDENT: But you don't know.

PN25

MR DEAKIN: I was not there, sir, so I couldn't say but we've been - we were contacted by their people down there to say - and I'd have to rely on Jason Wilder to confirm that but, yes, it was agreed to. But it would have been a definitely secret ballot. One company that pushes the rule of secret ballot is Nilsen and I should have, should have remembered that.

PN26

THE SENIOR DEPUTY PRESIDENT: Leaving aside for a moment the question of how that vote was conducted, to what extent are you in a position to say to me that the addition of another 20 employees, an increase of over 50 per cent of the numbers who were present on the site on 30 July, could conceivably have resulted in a changed employer view or attitude?

PN27

MR DEAKIN: No, sir. Definitely not. I've got to say to you, people have been contacting us to go down on that project and they've been contacting us: who are the contract for that job. We've told them it has been Nilsen's. They've asked us what the wage rates are. We've said we'd give them a copy of the document. If we didn't get down before the copy, to contact Nilsen. I would actually say, sir, they've all been - even people coming from Victoria are trying to get on that site down there.

PN28

It is a superior job compared to anything out there at the moment. It is a 36-hour week is already in place as of - as we speak right now, which our industry document is nowhere near. Now, these people, I would only say to you, they're picking up - I was talking to one of our people - about $1900 a week after tax on that job. It is a big deal. They're doing the hours, they've got the money. It is a good project and we haven't heard one - we've been down there since and we haven't heard one complaint about the agreement or the conditions from the company.

PN29

THE SENIOR DEPUTY PRESIDENT: When does Mr Wilder return from Queensland?

PN30

MR DEAKIN: He returns tonight, actually, but I can honestly say to you sir that that is a superior document.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Deakin. Mr Deakin, I'm going to ask Mr Priest a few questions about the agreement. You would be aware that I'm not inviting him to change the terms of this agreement, which by something more than chance appear to be identical with a number of other agreements that I have looked at for this particular project. Mr Priest, can I refer you first of all to clause 1.6 of the agreement. Can I take the intention of the parties to be such that the agreement will expire or reach or have a nominal expiry date being 2 years from the date of its certification but that the parties understand that when the work which Nilsen Electrics are contracted to undertake on the project is completed, then the agreement will obviously have no application?

PN32

MR PRIEST: Yes sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Now, can I then take you to clause 3.3 of the agreement and the agreement in this regard specifies a very broad range of classifications. Can you confirm to me which of the classifications detailed in clause 3.3 have potential application to the Nilsen employees?

PN34

MR PRIEST: Certainly. Obviously group 1, being non-trades, would be applied. Of the rest of groups 2 through 6, the levels in there list electrical worker grade 4, electrical worker grade 5, electrical worker grade 6. Grade 4 provides for special class trades. That would obviously be an electrical worker grade 7, special class. Group 5 - sorry, my mistake, group 5 would be the electrical worker grade 7. I would hazard that perhaps there would not be anyone employed under group 4 under this agreement and then group 6 would be electrical worker grade 8. It is noted that there are a number of classifications that are actually not listed under the award for this and it is taken that the classifications that correspond with those in the award shall be used under this agreement. The rest were possibly left in there just to advise the employees that other trades are getting on the site.

PN35

THE SENIOR DEPUTY PRESIDENT: Am I correct in my understanding of clause 3.7 such that the additional time associated with the implementation of the 36-hour week is to be accumulated and taken as time off at the completion of the project or that employees work on the project?

PN36

MR PRIEST: Yes sir.

PN37

THE SENIOR DEPUTY PRESIDENT: Clause 3.11 relates to income protection. Are you able to advise me of the terms of that income protection insurance arrangement?

PN38

MR PRIEST: Certainly. The money will be paid to Protect, administered through IUS, which I suppose the basics of it, it is a 2-year benefit period with a 14-day waiting period before benefits are paid.

PN39

THE SENIOR DEPUTY PRESIDENT: And are employees paid by Protect an amount which equates to their average salary or to the salary set out in this agreement or to some other amount?

PN40

MR PRIEST: There is a ceiling on the salary payable. Tradesmen will receive up to $1000, which can be to the maximum of their moneys and the apprentices, I believe it is - currently it is $600.

PN41

THE SENIOR DEPUTY PRESIDENT: But those amounts are actually determined by average earnings or are they determined by the amount set in this agreement?

PN42

MR PRIEST: It will be determined by average earnings for the previous 12 months.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you. And finally, clause 4.3 references appendix 2. Can you confirm to me that I'm correct in my understanding then that both parties agree that the client has the capacity to require that an employee not work on the project or to cease working on the project?

PN44

MR PRIEST: If they did not sign.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, it is not just a question of not signing. It appears to me that the signature required in relation to appendix 2 is a necessary prerequisite for work on the project but in addition to that the capacity exists for the client to require a person not to work or continue to work on the project. Perhaps I can refer you to the second page of appendix 2. That page imposes a range of obligations on the parties and it notes that a breach of any of the obligations that are detailed may lead to the immediate termination of the recipient's employment and/or contract.

PN46

The recipient will be barred by the owner from returning to any job at the construction site known as the KCA5 Project or its associated works. The question that I have is that in the event that an employee of Nilsen Electric is barred from working or continuing to work on the project, do the project understand that to be determinative of that person's employment or is that a situation which will be considered depending on the circumstances?

PN47

MR PRIEST: I think it will considered depending on the circumstances at the time.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Deakin, do any of Mr Priest's responses occasion you the need to comment or are you in agreement with all of them?

PN49

MR DEAKIN: I'm in agreement with all of them.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Priest, I'm not at the present time prepared to extend the time provided for in section 170LT of the Act. I will require from either party, that is, it could be from the employer or it could be from the union, advice of the nature of the voting process which was utilised on 30 July, so as to arrive at a valid majority.

PN51

I also require a confirmation from either the union or the employer of the exact numbers of employees - not their names, but the numbers - who were involved in work on the site and hence covered by the agreement and involved in the voting process on 30 July, and the corresponding number for the relevant period which would in fact be 14 August. Base that on a 14 day period. Sorry, it shouldn't be 14 August, it should be 21 August, being a 21 day period from the date of the vote.

PN52

I can advise the parties that on receipt of that information, I will be in a position then to determine whether or not I am prepared to utilise the discretion which is established within section 111(1)(r) of the Act, so as to extend the time frame for lodgment of the application. In the event that I do extend that time frame, I can advise the parties now that I am satisfied that the agreement meets the requirements of the Act such that it could be certified. On that basis, I would certify the agreement from the date upon which I received that information.

PN53

If I don't receive that information within the next week, or indeed if that information does not allow me to be satisfied relative to the exercise of that discretion, then I will call the matter back on at fairly short notice so as to see whether we can clarify that matter. The certificate, if indeed one is issued, will detail the various clauses about which I sought clarification. It won't detail the responses because those are recorded on the transcript. Do you have any questions about that approach?

PN54

MR PRIEST: Only to ask in what format you would like such information to be provided.

PN55

THE SENIOR DEPUTY PRESIDENT: Obviously, in a written format and ideally, it would be in a format which indicated that both the union and the employer were in agreement with that information. So that is something for the parties to consider.

PN56

MR PRIEST: Certainly, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, are you happy with that approach?

PN58

MR DEAKIN: Yes, sir.

PN59

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [10.05am]