AG2003/6159, Transcript of Proceedings [2003] AIRCTrans 4538 (13 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/6159

APPLICATION FOR CERTIFICATION
OF AGREEMENT

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

ADELAIDE

11.40 AM, THURSDAY, 25 SEPTEMBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Mr Harrison, I noted you appeared in this matter on the last occasion, are there any other changes in appearances?

PN2

MR M. HARRISON: Yes. MR TALIOURIDIS appears for the company and on our immediate left. He is also known as JOHN TALI and has made a stat declaration in that name, which is before the Commission. I appear with DARREN ROBERTS on this occasion, from the CFMEU and I move on his statutory declaration of 18 July 2003 and what is really the stat declaration of Mr John Taliouridis who is with us, of 27 August 2003.

PN3

It is my submission that these statutory declarations satisfy the statutory requirements for certification and they disclose facts which would justify the Commission on exercising its discretion in favour of certification. Prior to that, I need to apply for an extension of time in which to bring these proceedings as they were filed some 53 days out of time. I'm instructed there are four employees as at the date of the valid majority meeting on 9 July 2003 and those four employees remain in the company's employ.

PN4

On that basis I would seek firstly, an extension of time in which to bring these proceedings, and secondly, certification of the agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Harrison. Mr Taliouridis, can you confirm that the four employees who voted on this agreement proposal on 9 July remain in your employ?

PN6

MR J. TALIOURIDIS: Yes. That is correct.

PN7

THE SENIOR DEPUTY PRESIDENT: Have you employed any other employees since that time?

PN8

MR TALIOURIDIS: No, I haven't.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis, Mr Harrison, I will use the discretion available within section 111(1)(r) of the Act to extend the time frame for lodgment of the application. Mr Harrison, are you able to tell me how it is that employees were alerted to this agreement proposal, such that they had it for that minimum of 14 days prior to the vote on 9 July, or is that a task that you will delegate to Mr Roberts?

PN10

MR HARRISON: Yes. Mr Roberts, sir, was the agent involved there.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Roberts?

PN12

MR D. ROBERTS: Yes?

PN13

THE SENIOR DEPUTY PRESIDENT: Was a copy of the agreement given to each of the four employees?

PN14

MR ROBERTS: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: You confirm they were given that copy 14 days before they voted on 9 July?

PN16

MR ROBERTS: Correct.

PN17

THE SENIOR DEPUTY PRESIDENT: The agreement proposal wasn't changed at all during that time?

PN18

MR ROBERTS: No.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Taliouridis, I'm going to ask Mr Harrison a number of questions about the agreement. My questions do not invite him to redraft the document that was voted upon by the employees, but I do raise a number of questions that I will take into account in the certification of the agreement. I invite you to either express a concern with any of those responses if you have a concern, as Mr Harrison responds to my questions. Or alternatively, I will return to you at the conclusion of those questions to clarify your position.

PN20

Mr Harrison, clause 1.6 of the document references any other similar award within the context of the scope and area of clause, is there any such similar award?

PN21

MR HARRISON: That is superfluous words in this case.

PN22

THE SENIOR DEPUTY PRESIDENT: Clause 1.8 relates to the relationship to the parent award and I understand that the parties intend that the agreement should be read in concert with the National Building and Construction Industry Award of 1990 save and except that if that award contains monetary amounts that have been updated by the 2000 award, then those higher amounts would apply. Is that a correct understanding?

PN23

MR HARRISON: That is correct.

PN24

THE SENIOR DEPUTY PRESIDENT: Clause 2.3 is the dispute resolution procedure. It gives rise to a question that I need to address to Mr Taliouridis, in that can I understand that an employee who is not a member of either the CFMEU or possibly not even a member of a union at all, has the capacity to be represented by a person or a union of their choice?

PN25

MR TALIOURIDIS: It applies for employees that aren't in the union.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. If an employee is not in this union or indeed any union, have they got their right to be represented in that process by a union or a person of their choice?

PN27

MR TALIOURIDIS: Yes. That is right.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison, I understand clause 2.3.8 which references the appropriate industrial tribunal to refer by virtue of the award to the AIRC and that the award establishes that the Commission should attempt to resolve matters by conciliation with arbitration as a last resort?

PN29

MR HARRISON: That is my instructions.

PN30

THE SENIOR DEPUTY PRESIDENT: Clause 2.4 relates to demarcation disputes and I understand that the ACTU policy in that respect is readily available and that the parties intend that any demarcation disputes be dealt with through that process rather than by a reference to the Commission.

PN31

MR HARRISON: I'm so instructed.

PN32

THE SENIOR DEPUTY PRESIDENT: Now, clause 2.5.1 gives rise to a further question of the employer. Mr Taliouridis, can you confirm to me that the issue of union membership is such that any prospective or current employee will not have their employment influenced in any way by whether or not they are a member of the CFMEU?

PN33

MR TALIOURIDIS: That is correct.

PN34

THE SENIOR DEPUTY PRESIDENT: Are you able to give me an undertaking that all prospective employees will, at the time they are interviewed for employment, be advised that their membership or otherwise of the CFMEU will not be taken into account in relation to their employment?

PN35

MR TALIOURIDIS: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Now, that is an undertaking upon which I will need to rely in terms of certification of the agreement. So you understand that?

PN37

MR TALIOURIDIS: Not quite.

PN38

THE SENIOR DEPUTY PRESIDENT: It means it is a binding obligation.

PN39

MR TALIOURIDIS: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: It is an obligation which means that on every occasion when an employee is interviewed, they need to be told that their membership or otherwise of the CFMEU will not determine their employment.

PN41

MR TALIOURIDIS: Yes. That is right.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harrison, I understand that clause 2.7 relative to subcontractors is agreed by the parties to not be a binding obligation, rather a statement of intent, and that it certainly does not bind either the parties to this agreement nor indeed any other party.

PN43

MR HARRISON: Those are my instructions.

PN44

THE SENIOR DEPUTY PRESIDENT: Further, clause 2.8 relates to WorkCover matters, but notwithstanding the provisions of that clause, the parties agree that the primary obligation involves individual employees with their employer in accordance with the WorkCover Act.

PN45

MR HARRISON: That is the case.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 3.4 relates to supplementary labour and again, I understand that the parties do not intend this to be anything other than a statement of intent and certainly that it does not establish a binding obligation upon either the parties to this agreement, or indeed any other party.

PN47

MR HARRISON: Those are my instructions.

PN48

THE SENIOR DEPUTY PRESIDENT: 3.5 relates to a work practices review which I would understand will occur over the life of the agreement?

PN49

MR HARRISON: If it please the Commission.

PN50

THE SENIOR DEPUTY PRESIDENT: Clause 3.7 refers to the company's Occupational health and safety welfare policy. I would understand that policy to be readily available to all the employees and that the references to it mean that it may well be changed during the life of the agreement.

PN51

MR HARRISON: I'm so instructed.

PN52

THE SENIOR DEPUTY PRESIDENT: Clause 3.7.6 refers to the Construction industry drug and alcohol policy and again, I would understand that to be readily available to employees and to be capable of change during the life of the agreement.

PN53

MR HARRISON: That is our understanding.

PN54

THE SENIOR DEPUTY PRESIDENT: Clause 4.3 refers to CPI adjustments and I understand that in that respect, parties intend the reference to CPI to refer to the percentage value of any adjustments to expense related allowances made to the 2000 award and that the comparison of those percentages with the proposed wage increases, will occur following the annual change to the relevant 2000 award.

PN55

MR HARRISON: That is my instruction.

PN56

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 4.8 and in particular 4.8.2. I understand there that in the event that the employer is not able to demonstrate to the Union that a person is undergoing competency based training, then the full adult rate will apply?

PN57

MR HARRISON: That is my instruction.

PN58

THE SENIOR DEPUTY PRESIDENT: Now, clause 5.3 contains as its last provision on page 15, provision No. 2.3.5, which establishes that the hourly rate will reflect the 38 hour week from midnight on 30 June 2004 and I take it that that change is in fact reflected in the rates of pay detailed in clause 4.1? I ask that because 4.1 contains a changed wage rate effective from 1 July 2004 and I simply want to make sure that that rate picks up the rate specified in what is called 2.3.5?

PN59

MR HARRISON: Yes. That is correct.

PN60

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 on page 18 references a training program. I would understand that to be developed over the life of the agreement? Is that correct?

PN61

MR HARRISON: Page 18, did you say?

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. It is.

PN63

MR HARRISON: I beg your pardon, 8.2. Yes, that is correct.

PN64

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 references the industry agreed procedure on inclement weather or extremes of heat. I understand the parties are referring in that respect to the agreement reached between the MBA and the CFMEU and more particularly, that that agreement is spelt out in a coloured brochure which is readily available to all employees on sites covered by this agreement?

PN65

MR HARRISON: Yes. Those are my instructions.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you. Finally, the signature block on page 20 that confirms the employee understanding and consultation relative to the agreement, is not filled in. Can I take it that I ought not presume that simply because it is not filled in, employees have not been consulted?

PN67

MR HARRISON: Yes, that is another assumption one can make.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harrison. Now, Mr Taliouridis, do my questions of Mr Harrison mean that you want to make any additional comments, or can I take it that you are in agreement with all of his responses?

PN69

MR TALIOURIDIS: Yes. I am.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me today and to the statutory declarations, I'm satisfied that the agreement meets the no disadvantage test, it contains the necessary dispute resolution provisions and is of a duration envisaged by the Act. On the basis of the undertaking given to me by Mr Taliouridis this morning, I'm satisfied that the agreement does not contain provisions which are contrary to the Act.

PN71

I'm also satisfied the agreement was reached through a process consistent with that required by the Act and accordingly I will certify the agreement with effect from today. The certificate reflecting the certification will be sent out to the parties within the next few weeks, as I will be away for a fortnight. It will identify the clauses about which I've sought clarification. It will not detail the answers, those will be recorded in the transcript. It will, however, detail my understanding of the undertaking given by Mr Taliouridis upon which I have relied for the certification of the agreement.

PN72

I congratulate the parties on reaching this agreement. Please don't feel obligated to utilise its dispute resolution provisions. I trust the agreement benefits both the employer and the employees. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [11.55am]