AG2003/7348, Transcript of Proceedings [2003] AIRCTrans 4780 (29 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/7348

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and
Allied Services Union of Australia, Plumbing
Division South Australian Divisional Branch and
Another for certification of the Concept
Air Conditioning Pty Limited On Site
Construction SA Enterprise Agreement SA
2003-2005

ADELAIDE

10.05 AM, TUESDAY, 14 OCTOBER 2003

PN1

MR K. BLEECHMORE: I appear for the Air Conditioning and Mechanical Contractors Association of South Australia Incorporated, appearing for Concept Air Conditioning Pty Ltd.

PN2

MR G. WARREN: I appear for the Communication, Electrical and Plumbing Union, Plumbing Division South Australian Branch.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Bleechmore?

PN4

MR BLEECHMORE: Thank you, your Honour. Your Honour, Concept Air Conditioning and their employees have entered into an agreement with the assistance of the CEPU, for an enterprise agreement to cover the employees in the company for the years 2003 to 2005. The agreement does provide significant benefits to the employees and, as a consequence, the growth and prosperity of the company should ensue.

PN5

The agreement is similar to other agreements within the industry, on the basis that companies and employees do like a certain degree of common approach to issues, but there are opportunities for the company to have certainly their own company issues to be raised within this agreement and they have made opportunity of that. Certainly, the agreement does provide a degree of stability and certainly predicability within the industry and past agreements with other companies have shown that there certainly are benefits for both.

PN6

THE SENIOR DEPUTY PRESIDENT: Mr Bleechmore, I have noted that this agreement appears to follow an earlier proposal which I was not able to certify.

PN7

MR BLEECHMORE: Certainly, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: I have also noted the agreement addresses a number of the questions that I raised on that occasion. Is that a correct understanding?

PN9

MR BLEECHMORE: Correct, your Honour, but I believe that I have addressed all of the issues that you have raised in that previous submission and either been able to make amendments, or certainly been able to clarify that those issues certainly do have merit.

PN10

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Warren.

PN11

MR WARREN: I don't have anything further to add than my friend. I have viewed the transcript from the previous matter that was withdrawn before you. As I understand it, the enterprise agreement now conforms with those requests, or those answers to those questions and we agree with the submissions of my friend.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Warren, as reflects my practice, I intend to ask Mr Bleechmore a few questions about the agreement document. My questions won't invite him to redraft the document, but they do go toward clarifying a number of issues that I have. You can either respond at the conclusion of his responses to me, or alternatively, take those questions on notice as I understand you are standing in for Mr Lean.

PN13

MR WARREN: That is correct. I would prefer to take them on notice and I will answer what I can.

PN14

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Bleechmore, can I take you first of all to clause 2.1, which indicates:

PN15

The agreement applies only to employees engaged on commercial or industrial projects.

PN16

Now, to what extent are you able to tell me that there is a clear definition of commercial or industrial projects?

PN17

MR BLEECHMORE: Certainly, your Honour. The company has a very clear delineation within its organisation. The majority of their work - the significant amount - is in the area of commercial and industrial work and it is the mechanism with which they gain that work. There is a small section within the company which does win some and goes for some domestic work, which in fact employees are rarely ever engaged on and it would be an unusual act for that to occur and they use subcontractors to perform that work, but it does just clarify within the company that it is geared towards the commercial industrial sector of the company.

PN18

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7 details at 7.1, 7.2 and 7.3 various tables and appendix 1. Am I correct in understanding that the reference is intended to be to appendix 4?

PN19

MR BLEECHMORE: Correct, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions of clause 11.2 on page 6 limit the application of the BIRST scheme to employees on non-domestic projects. Is the concept of an employee engaged on non-domestic projects synonymous with the concept of employees engaged on commercial and industrial projects that we talked of earlier?

PN21

MR BLEECHMORE: Correct, your Honour. In fact, that is the intention, that it is the commercial and industrial and I did raise that with the company and, certainly, they requested it. It was the non-domestic that they really wanted to have there and for their own clarification purposes, but certainly it is the commercial, industrial projects they engage in.

PN22

THE SENIOR DEPUTY PRESIDENT: Clause 15 on page 7 references subcontractors. Now, am I to understand that the reference to subcontractors is simply for the purpose of defining the concept of self-directed work teams in that context?

PN23

MR BLEECHMORE: Correct, your Honour, so that - because it is often a combination and it was just to identify that that mix does occur but of course subcontractors are not covered by this agreement.

PN24

THE SENIOR DEPUTY PRESIDENT: Clause 20 on page 9 talks of quality issues. Is that company quality policy a documented policy and do the parties intend to refer to it as it might be amended during the life of the agreement?

PN25

MR BLEECHMORE: Yes, the company does have a policy, a quality policy. It is available to all employees of the company and certainly any changes to that policy would be distributed to them.

PN26

THE SENIOR DEPUTY PRESIDENT: Clause 24 relates to supplementary labour. Am I to understand that this clause doe snot impose any binding obligations on parties who are not parties to this agreement?

PN27

MR BLEECHMORE: Correct, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Equally, if an employee covered by this agreement is loaned, if I can use that term, to another company, I understand from this provision that those employees' pay might well be made by the other company but the employees' entitlements would be protected and the obligations attaching to them would remain with this particular employer?

PN29

MR BLEECHMORE: Correct, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Clause 26 relates to security of employment and are you able to confirm to me that that provision is simply a statement of intention rather than a binding obligation?

PN31

MR BLEECHMORE: Correct, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Clause 28 appears on a literal reading to watermark, if I can use that terms, the award at the time the agreement was made. Is that the intention or is it the intention to apply the award as it might be varied in concert with this agreement as long as the award is not inconsistent with the agreement?

PN33

MR BLEECHMORE: Certainly, your Honour, it is the award as amended because you may recall some years ago there was an attempt to freeze the award and we have certainly, by agreement, not imposed that. The intent is that it is the award, as amended.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 29 relates to income protection and are you in a position to outline to me the terms of that income protection insurance cover?

PN35

MR BLEECHMORE: I certainly am aware of the cover and we've distributed a copy - a draft copy of that cover to each of the companies and they have entered into agreement with IUS on that and my understanding is the standard cover which applies within the industry of some 104 weeks of cover after an expiration of 14 days from the commencement of the claim. And I believe that is the standard cover and I'm not aware of any variations to that protection income.

PN36

THE SENIOR DEPUTY PRESIDENT: And the amount of money that employees are paid during that time?

PN37

MR BLEECHMORE: It is their ordinary time earnings.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 31 relates to the picnic day. It gives rise to two questions: the first is, am I to understand that the issue of union membership is not a predeterminant of whether someone is able to have that picnic day recognised and paid for but rather attendance at that particular function?

PN39

MR BLEECHMORE: It is not a requirement that they be a member of the union. If they do take the picnic day off they will have to give some recognition that they either attended the picnic day and a union stamp is provided to any attendee to that who pays the requisite amount, but it would still be a requirement that they wold have to provide proof that they did attend the picnic day to receive payment.

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you. And second question in relation to clause 31 relates to the use of the word "subcontractor". How should I understand that provision?

PN41

MR BLEECHMORE: A subcontractor is not covered by this but if they require payment, it certainly was not the intent that that be binding.

PN42

THE SENIOR DEPUTY PRESIDENT: Clause 32 relates to the 36-hour week and again, if I properly understand this provision, it means that if employees seek the 36-hour week then they can take the additional days off associated with that 36-hour week but would not be paid for that?

PN43

MR BLEECHMORE: Correct, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Appendix 1 is the dispute of grievance settlements procedure. In particular reference to step 3, am I to understand that if an employee is not a member of this particular union, or indeed any union, they can be represented by a union or a person of their choice?

PN45

MR BLEECHMORE: Certainly that would be available to them, your Honour. As I've mentioned before, it was general practice within the industry that employees attempt to belong to the union but they would certainly have that choice. It could not be denied them by the employer.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. Appendix 3 relates to inclement weather and the hot weather procedure. Can I refer you to the second paragraph which commences with the words "the temperature standard" and in particular to the second sentence. Am I to understand that should in fact read "for areas north of Gepps Cross"? Is that correct? So it would not take into consideration the word "are"?

PN47

MR BLEECHMORE: Yes, correct, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. And then, finally, if I can then take you to Appendix 4, in the period between the earlier agreement being heard on 7 August and this agreement, the award rate changed as a consequence of the application of the safety net adjustment?

PN49

MR BLEECHMORE: Yes, correct.

PN50

THE SENIOR DEPUTY PRESIDENT: In that context can I just clarify that the base rate is in fact the same as that which is articulated in Appendix 4, because I do need to get you to walk me through the extent to which this set of wage rates does in fact meet or exceed those that are set out now in the award?

PN51

MR BLEECHMORE: Certainly, your Honour. The intent was to show that at the time of the creation of the enterprise agreement the award provisions were put into table 1 and to show that there had been an increase in wages there is an insertion of what is called an "air-conditioning allowance" and that air-conditioning allowance certainly more than exceeds what the award base rate would be. The conundrum is, do we increase each of the elements by a percentage which would be greater than the increase in the award wage rate or do we show that increase in the air-conditioning allowance?

PN52

The decision was made to use the air-conditioning allowance as the vehicle to show that there was an increase in actual rates, certainly above the award. When a new EBA is created - and this expires on 30 September 2005, a wage rates table will be created which will reflect what the award shows at that time. So this does not freeze the award, as such, but it does show that the award wage rates will be consistent and the air-conditioning allowance will be used as the vehicle to show the increase in wages and allowances.

PN53

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Yes, thank you Mr Bleechmore. Mr Warren, I understand you wish to take those questions on notice?

PN54

MR WARREN: Yes, your Honour. I do apologise to both the Commission and my friend in regards - - -

PN55

THE SENIOR DEPUTY PRESIDENT: That is perfectly understandable, given the situation you are in. Are you able to indicate to me, though, how long a period you would need to be able to respond to those questions?

PN56

MR WARREN: As in the previous matter, I don't think it would take any longer than a week. I think that, from what Mr Lean gave me in terms of instructions and my perusal of the previous transcript, I don't think it will be very long at all and I think that that could be provided to both my friend and the Commission within one week.

PN57

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. I can indicate to the parties that I'm satisfied that the agreement was reached through a process consistent with the Act and I am also satisfied that the agreement meets the requirements of the Act insofar as it passes the no disadvantage test and that it is of a duration envisaged by the Act. On the basis of the advice provided to me by Mr Bleechmore, I am satisfied that the agreement contains the necessary dispute resolution provision and does not contain provisions which are contrary to the Act.

PN58

I would propose to certify the agreement with effect from the date upon which I receive advice from Mr Warren which confirms his understanding of the responses provided to me by Mr Bleechmore. If I issue a certificate, then the certificate will date from that date and will indicate the various questions that I've asked of the parties. The responses would be recorded on the transcript and, indeed, Mr Warren's responses would be recorded by way of a written response. That need not be a long response, Mr Warren, if you are in agreement with Mr Bleechmore's position.

PN59

MR WARREN: Yes sir.

PN60

THE SENIOR DEPUTY PRESIDENT: In the event that I didn't receive an advice from the union or, indeed, that there was any difference between the parties, the matter will be relisted so as to clarify that outstanding difference. On the basis that it appears to me to be likely that the agreement will in fact be certified, I congratulate the parties on reaching this agreement and trust that it operates to benefit both the employer and the employees. I will adjourn the matter accordingly.

PN61

MR WARREN: Thank you, your Honour.

ADJOURNED INDEFINITELY [10.25am]