AG2003/7279, Transcript of Proceedings [2003] AIRCTrans 4700 (23 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 4948

~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG2003/7279

APPLICATION FOR AGREEMENT WITH
EMPLOYEES (DIVISION 2)

Application under section 170LK of the Act
by Concept Cabinets Pty Ltd for certification
of Concept Cabinets Pty Ltd Enterprise Bargaining
Agreement 2003-2005

MELBOURNE

12.52 PM, MONDAY, 8 OCTOBER 2003

PN1

MR B. SHAW: I seek leave to appear for the applicant company.

PN2

MR R. LOWE: I seek leave to appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Shaw, leave is granted to you. What do you say about Mr Lowe?

PN4

MR SHAW: Your Honour, I object to leave being granted, or intervention, I should say, not leave. I do on the basis of section 43(2) of the Act. I appreciate there are a couple of decisions which state that leave can be granted under section 43(1), up until a point where an application is found to be a valid application, whereupon leave is clearly not to be granted by virtue of section 43(2)(b) of the Act. The requirements of section 43(2)(a) are not met, on my instructions, and certainly on the statutory declaration material.

PN5

In my submission, section 170LK sets up a clear regime whereby the Commission should itself determine by an inquisitorial process as to whether, one, an application being properly made and, two, whether the agreement satisfies the requirements of the Act. The application of the decision, the MRE decision and the Grocon decision, the MRE decision of Senior Deputy President Williams, and the Grocon decision of Vice President Ross, set up, in my submission, a regime which, one, the Commission as presently constituted is not bound to follow. There is no binding authority there. But they set up purely a situation where an employee organisation is effectively given the full rights of a party in order to seek intervention and to prove that there is, in fact, no application in which it can ever be granted intervention.

PN6

No decision obviously can ever be made on the intervention, because if the employee organisation is successful in demonstrating that there is no properly made application, then clearly the matter is struck out, and no decision ultimately is made on the question of intervention. So I would certainly oppose the intervention on those grounds.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Lowe, why should I grant you leave to intervene?

PN8

MR LOWE: Your Honour, the union would submit to the Commission that you should grant their application to intervene on the basis that we believe that the requirements of section 170LK of the Act have not been complied with, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Which particular sections?

PN10

MR LOWE: And I would take you to section 170LK(2), and then (4). And section 170LK(2), which deals with notice of intention to make an agreement, states that the employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days notice in writing of intention to make the agreement, and that the agreement must not be made before those 14 days have past.

PN11

Further, at 170LK(4), the notice must also state that if any person whose employment will be subject to the agreement as a member of an organisation of employees and be the organisation that is entitled to represent the person's industrial interests in relation to the work that will be subject to the agreement, that the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.

PN12

Your Honour, it is my instructions that there was no notice in writing given to the employees of the employer's intention to make an agreement as required by the Act. In fact, what was happening was that in June, on 23 June this year, a proposal was put by the CFMEU. The organiser that is present with me today, Mr Andrew Vendromeni, went to the company, and so the company was going through a pretence of looking at this agreement and coming back to negotiate with us. Mr Vendromeni went out there this morning to see what was happening with the agreement, and the employer advised him that the company was still trying to just finalise a number of matters, and would be contacting the union shortly about the agreement.

PN13

And when he then, after leaving the employer, went and spoke to the employees, they advised him, your Honour, that there had been - while they were aware that the company intended to make an agreement, that that hadn't been put to them in writing. And so the union would submit, your Honour, that the provisions of the Act have not been complied with, and we would seek that this matter be adjourned, and that the parties be instructed to confer, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: On the file in this matter there is a letter under the letterhead of Concept Cabinets Pty Ltd, dated 18 August 2003, which says, Dear, and it is blank, re enterprise agreement, and then it goes through about a proposal to effectively enter into an LK agreement, and it talks about if you are a member of the CFMEU you may ask the union to represent you, etcetera. Have you seen this letter?

PN15

MR LOWE: No, your Honour, I have not. Probably Mr Vendromeni, it may be appropriate for him to advise your Honour what happened this morning, because the employee that he spoke to indicated that he had not received anything in the letter from the company.

PN16

THE SENIOR DEPUTY PRESIDENT: All right. Before we do that, what do you say about the allegation, Mr Shaw?

PN17

MR SHAW: Obviously I rely on my instructions and on the statutory declarations of Peter Cochen and Glen Thompson and Vince Lamano. The declarants, Peter Cochen and Glen Thompson are here in the Commission, if evidence is sought at this stage, in light of my objection to intervention. If the Commission itself wishes to examine them, it can, otherwise I would merely rely on the statutory declarations.

PN18

The statutory declarations say that the document which is marked PC2 on the Peter Cochen exhibit, were given out on 18 August, and the agreement was subsequently made on 2 September, after 14 days had passed, and after the processes that are listed in the statutory declaration had taken place. I note that there is no other person present in the room to give evidence to the contrary.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Lowe, you say you have received advice that no such letter was received?

PN20

MR LOWE: Well, the information that we have, we weren't aware, as they haven't put the union proposal before the company, and that was done on 23 June, and it is not unusual for employers to take some time to consider that before we get back to them. We weren't aware until very late in the piece, until I was actually on my way to the Commission on other enterprise agreements, that this matter was on before you this morning. And Mr Vendromeni rang me and said that he was at the site at the company premises, and I asked him to check with an employee to see whether or not they had received advice in writing by the company that there was an intention by the company to make an agreement, and that the union would be advised, you know, or could be brought into those negotiations should an employee desire to do so.

PN21

And the instructions that I have been given by Mr Vendromeni, that when he asked that question of the employee, was that the answer was no, they never received anything in writing, but they were told verbally that the company was intending to make an agreement.

PN22

THE SENIOR DEPUTY PRESIDENT: Would it be your intention to bring evidence from the relevant employee or employees to the effect that they didn't receive anything in writing?

PN23

MR LOWE: We would seek an adjournment to be able to have the opportunity to do that, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Very well. Have you got anything else you wish to add, Mr Shaw?

PN25

MR SHAW: No. I think I have made my position truly clear.

PN26

THE SENIOR DEPUTY PRESIDENT: I will give the CFMEU rights to intervene on the limited basis of establishing whether there is, in fact, an application before me under section 170LK. The union has indicated they wish to bring witness evidence in regard to it, you obviously will too, Mr Shaw, I presume?

PN27

MR SHAW: I am sorry?

PN28

THE SENIOR DEPUTY PRESIDENT: I presume you would want to bring witness evidence in regard to it as well?

PN29

MR SHAW: Well, as I said, two of the declarants are here today, they can give evidence now. If it is your intention to grant an intervention for the - sorry, to grant an adjournment, they might as well be dealt with on the same day, if that is what you are going to do.

PN30

THE SENIOR DEPUTY PRESIDENT: Well, the witnesses for the union aren't here, unfortunately, so I think I am forced to do so another day. I will check my diary.

OFF THE RECORD

PN31

THE SENIOR DEPUTY PRESIDENT: I adjourn this matter until 12.30 pm on 27 October 2003, here in Melbourne. I will now adjourn.

ADJOURNED UNTIL MONDAY, 27 OCTOBER 2003 [1.09pm]