AG2003/7332, Transcript of Proceedings [2003] AIRCTrans 4536 (13 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/7332

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Pascale Construction Pty Limited and Another
for certification of the Pascale Constructions
Pty Ltd/CFMEU Collective Agreement 2003

ADELAIDE

10.55 AM, THURSDAY, 25 SEPTEMBER 2003

PN1

MR M. HARRISON: I appear with MR MARK GAVA for the CFMEU.

PN2

MR M. HOWARD: I appear for Pascale Construction Pty Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Harrison?

PN4

MR HARRISON: If it please the Commission lack of a need to apply for an extension of time is always habit forming. I move on - - -

PN5

THE SENIOR DEPUTY PRESIDENT: You may need to save your endeavours in that regard for later this morning, Mr Harrison.

PN6

MR HARRISON: Yes, I've noted the rest of them. I move on the second declaration of Mark Gava of 10 September 2003 and a similar second declaration of Fernando Pascale for the company on the same date. It is my submission that the stat declarations disclose that the statutory requirements for a certification have been met and that the facts that emerge from the statutory declarations establish that the Commission is justified in exercising its discretion in that exercise of certification and I so move.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, can you confirm to me that the agreement upon which the employees voted on 22 August 2003 is in all respects the same as the document that I have before me? I ask that question with specific reference to the fact that there are some deletions in the document before me.

PN8

MR HARRISON: That is right, yes. Mr Gava is here and he can address you on that.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Gava?

PN10

MR GAVA: Yes, that is correct.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. So those deletions were made before this document was provided to the employees for their consideration?

PN12

MR GAVA: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Howard?

PN14

MR HOWARD: Thank you, your Honour. I'm instructed by Mr Pascale who is unable to attend the hearing today because he is away, to agree to the certification of the document as presented this morning. There is one point that I would like to make in respect to the documentation that has been provided today, is the company is actually Pascale Construction. There is no "s" in the company. It is: Pascale Construction Proprietary Limited, it is not "constructions".

PN15

THE SENIOR DEPUTY PRESIDENT: There is no dispute that the parties intend that the - - -

PN16

MR HOWARD: There is no dispute - - -

PN17

THE SENIOR DEPUTY PRESIDENT: - - - agreement would be binding on Pascale Construction.

PN18

MR HOWARD: That is correct but I just point that out to the Commission that the company's name is "construction", not "constructions". It is not going to affect, from our point of view, the document being certified. It is to correct the name of the company, if the Commission pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, Mr Howard, I'm going to ask just a very small number of questions of Mr Harrison. You would be aware that I'm not inviting Mr Harrison to change the words in the document but I'm simply seeking to clarify a couple of issues. Having said that I will address those questions to Mr Harrison, in fact the first one goes to you Mr Howard in that if I look at clause 6, which is the grievance or dispute procedure, am I to understand that an employee who may not be a member of a union or of the CFMEU has the capacity to be represented by a union or representative of their choice?

PN20

MR HOWARD: Yes, your Honour. As a matter of fact I understand by the terminology in the second sentence of clause 6 that that would exactly be the case: an employee and or a union representative. So by the reading of that I would say that the meaning of the terminology is that you may have a representative other than the union to represent you.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Harrison, clause 11 appears in part twice. Am I to take it that is simply a typographical error? It appears at the bottom of page 2 again and again at the top of page 3. I have taken it is.

PN22

MR HARRISON: I would say they have had strife with the computer.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, I take it, it is simply a typographical error.

PN24

MR HARRISON: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: And clause 20 on page 4 relates to WorkCover matters, am I to understand that notwithstanding the provisions of that agreement, the primary discussions would be between the employee and the employer in accordance with the Workers' Compensation legislation?

PN26

MR HARRISON: Yes, that is an attempt to replicate the law as it applies to WorkCover.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you, and the final issue which is not so much a question but rather an observation. Clause 25 of the agreement purports to agree to the back-dating of wage increases that might be determined under future enterprise agreements. I don't see that provision as being an impediment of certification of this agreement but I do need to comment to the parties that I doubt whether it represents an enforceable obligation.

PN28

MR HARRISON: I won't make any formal submissions but it is arguable I guess that that is a mere declaration of future policy.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Howard, do you wish to comment on either of the issues that I've raised with Mr Harrison?

PN30

MR HOWARD: No, there's no real issue that I really need to comment upon here. I acknowledge the issue that clause 11 is purely a formatting error by the look of it, yes. In respect to clause 25 I make no comment as I've not been instructed to what the intention of that is.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me I'm satisfied this agreement meets the requirements of the Act necessary for certification. I have noted this is the second time that I've considered an agreement relative to Pascale Construction Proprietary Limited. This application overcomes the previous difficulties. I am satisfied that the agreement was reached through a process consistent with that detailed in the Act, that the agreement contains the necessary dispute resolution provision, is of a duration envisaged by the Act, meets the requirements of the no disadvantage test and does not contain provisions which are contrary to the Act.

PN32

I will certify the agreement with effect from today. The certificate will be forwarded out to the parties within the next few weeks because of a short absence on my part that certificate will identify the clauses about which I sought clarification but it will not detail the answers that I've been given as those are recorded on the transcript. I congratulate the parties on their perseverance and trust this agreement benefits both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [11.07am]