AG2003/9847, Transcript of Proceedings [2003] AIRCTrans 5331 (2 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5346

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2003/9847

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Construction, Forestry, Mining and Energy
Union - Victoria Branch and Another for
certification of The CFMEU and Grocon MCG
Construction Agreement 2003

MELBOURNE

1.01 PM, MONDAY, 17 NOVEMBER 2003

PN1

MR J. MADDISON: I appear on behalf of the CFMEU.

PN2

MR J. VAN CAMP: I appear on behalf of Grocon and related entities.

PN3

THE VICE PRESIDENT: We might just go off the record for a moment.

OFF THE RECORD

PN4

THE VICE PRESIDENT: Mr Maddison, are you content to answer questions in relation to the relevant statutory tests?

PN5

MR MADDISON: Yes, I am, your Honour.

PN6

THE VICE PRESIDENT: I note that the application states it has been made under division 2 of part VIB of the Act and that it was lodged on 14 November, and the agreement was approved by a valid majority on 31 October, so it was within the 21-day time period.

PN7

MR MADDISON: Yes, your Honour.

PN8

THE VICE PRESIDENT: Is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN9

MR MADDISON: Yes, it is, your Honour.

PN10

THE VICE PRESIDENT: I note that a written copy of the agreement has been submitted for certification. Do you say that the agreement is about matters pertaining to the employment relationship?

PN11

MR MADDISON: Yes, it does, your Honour.

PN12

THE VICE PRESIDENT: In relation to the single business, I note that the parties to the agreement, in clause 4 are said to be, on the employer side, Grocon Constructors Pty Limited and related corporate entities. Who are the related corporate entities and on what basis is it said that Grocon Constructors Pty Limited and those entities are a single business within the meaning of the Act?

PN13

MR MADDISON: Your Honour, the related Grocon corporate entities are Grocon Developments Pty Limited, Grocon Australia Pty Limited and Grocon Pty Limited. It is said that we rely upon section 170LB(2), where two or more employees carry on a business project or undertaking relevantly as a common enterprise, then those employers are taken to be one employer. It is the submission of the union, and Mr Van Camp for those Grocon corporate entities can confirm this, that this is a situation in this instance and, accordingly, can be taken to be a single employer. And the agreement is one capable of being certified by a single member. It does not require a Full Bench.

PN14

THE VICE PRESIDENT: All right. And is the agreement in respect of part of a single business?

PN15

MR MADDISON: Yes, your Honour. In this instance again we rely on section 170LB(3)(a), where it is a geographically distinct part of the single business, that is, the - - -

PN16

THE VICE PRESIDENT: MCG site.

PN17

MR MADDISON: The MCG site, yes, your Honour.

PN18

THE VICE PRESIDENT: Does your organisation have at least one member employed in the part of the business whose employment would be subject to the agreement?

PN19

MR MADDISON: Yes, we do, your Honour.

PN20

THE VICE PRESIDENT: And are you entitled to represent the industrial interests of your members employed in the part of the business in relation to work that will be subject to the agreement?

PN21

MR MADDISON: Yes, we are, your Honour.

PN22

THE VICE PRESIDENT: I note what is said about the consultation process. In relation to the valid majority, was a vote taken of the employees employed at the time whose employment would be subject to the agreement about whether they approved the agreement?

PN23

MR MADDISON: Yes, it was, your Honour. That was on 31 October, 14 clear days after a copy of the agreement was provided to those same employees.

PN24

THE VICE PRESIDENT: Did each employee employed at that time have an opportunity to cast a vote?

PN25

MR MADDISON: Yes, they did, your Honour.

PN26

THE VICE PRESIDENT: And were a majority of the valid votes cast in favour of approving the agreement?

PN27

MR MADDISON: Yes, on my instructions and consistent with the statutory declaration, it was a unanimous decision in favour of accepting the agreement.

PN28

THE VICE PRESIDENT: And the relevant award is the National Building and Construction Industry Award 2000.

PN29

MR MADDISON: Yes.

PN30

THE VICE PRESIDENT: Would certification of the agreement result, on balance, in a reduction in the overall terms and conditions of employment of the employees covered by the agreement?

PN31

MR MADDISON: No, it would not, your Honour.

PN32

THE VICE PRESIDENT: I note there is a dispute settlement clause in clause 17 and that the agreement specifies a nominal expiry date of 31 October 2005. In relation to termination of employment, are any provisions of the agreement inconsistent with a provision of division 3 of part VIA, an order by the Commission under that division or any injunction granted or order made by a court under that division?

PN33

MR MADDISON: No, it is not, your Honour.

PN34

THE VICE PRESIDENT: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead me to refuse to certify the agreement?

PN35

MR MADDISON: In our submission, there are none, your Honour.

PN36

THE VICE PRESIDENT: In relation to discrimination, do any provisions of the agreement discriminate against an employee whose employment will be subject to it because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN37

MR MADDISON: No, there are none, your Honour.

PN38

THE VICE PRESIDENT: Does the agreement contain any objectionable provisions within the meaning of section 170LU(2A)?

PN39

MR MADDISON: No, there are no such provisions in the agreement, your Honour.

PN40

THE VICE PRESIDENT: Mr Maddison, the agreement hasn't been signed by Mr Watson, the Secretary of the FEDFA division. That is a matter that I will return to. Can I indicate that subject to me being satisfied about the statutory tests, what I would be minded to do would be to indicate that I will certify the agreement on Mr Watson signing it and the signed copy being provided to my chambers.

PN41

MR MADDISON: Yes, your Honour, we can certainly do that. I was just going to raise the point that the registered organisation is the CFMEU, which Mr Kingham is entitled to enter into agreements on behalf of. It may be that that is sufficient in respect of the Act and the rules, which say that they must have a signed copy of the agreement by the parties and also - the parties and via the statutory declaration. So that the parties, the CFMEU, the Act or the Commission doesn't necessarily recognise the divisions within that registered organisation - - -

PN42

THE VICE PRESIDENT: No, there might be some substance in the point but I suppose - - -

PN43

MR MADDISON: We are happy to err on the side of caution, your Honour, and noting the level of scrutiny that some of the CFMEU and Grocon matters have provided to various outside parties, we are certainly happy to do that and it only really hasn't been done because of the timing of it and Mr Watson has been interstate.

PN44

THE VICE PRESIDENT: I think that out of an abundance of caution, it might be preferable in this case. I note that the two divisions are specified as being party to the agreement - - -

PN45

MR MADDISON: Yes.

PN46

THE VICE PRESIDENT: - - - but I understand what you say about the legal entity registered under the Act is the CFMEU. That might raise another question about whether the state secretary of the organisation can sign the agreement, but - - -

PN47

MR MADDISON: It may be that the parties, for the purpose of an agreement, don't necessarily have to be the registered organisation itself. But perhaps without having to resolve any of those matters we can simply, as your Honour has suggested, provide a signed copy of the signature page signed by Mr Watson.

PN48

THE VICE PRESIDENT: Okay. Thank you. Mr Van Camp, do you agree with the answers that Mr Maddison has given to the questions that I put to him?

PN49

MR VAN CAMP: I do, your Honour. I concur with all those answers.

PN50

THE VICE PRESIDENT: In relation to the single business point and the proposition that these entities work in a common enterprise, is there anything that you can say further in relation to that?

PN51

MR VAN CAMP: I can't, except to say that we do rely on section 170LB, a single business, single employer, part (2)(a) and (b) and also (3), which describes a geographically distinct part of a single business.

PN52

THE VICE PRESIDENT: So these entities might come together at a particular point in time to perform work that Grocon, the group, if you like, is contracted to perform to complete a project?

PN53

MR VAN CAMP: Correct.

PN54

THE VICE PRESIDENT: Not dissimilar to what might have happened on the QV site?

PN55

MR VAN CAMP: Not too dissimilar to what happens across all or projects at the moment.

PN56

THE VICE PRESIDENT: All right. Thank you, Mr Van Camp. I would indicate that I am satisfied that I should treat the employer entities party to the agreement as a single business pursuant to section 170LB(2). I am also satisfied that the relevant statutory tests have been met and subject to receiving an agreement with Mr Watson's signature as divisional secretary, FEDFA division, I will certify the agreement. If there is nothing further, I will adjourn. I will await the signed copy.

ADJOURNED INDEFINITELY [1.15pm]