AG2003/7991, Transcript of Proceedings [2003] AIRCTrans 5416 (8 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 5417

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

AG2003/7991, 7992, 7993, 7994, 7995,
8019, 8020, 8021, 8022, 8035, 8036,
8037, 8038, 8039, 8040, 8041, 8042,
8043, 8044, 8045, 8046, 8047, 8048,
8049, 8050, 8051, 8052, 8053, 8057,
8058, 8059, 8060, 8061, 8065, 8066,
9021, 9154, 9155, 9157, 9158, 9192,
9193, 9194, 9195 and 9196

SUNLET PTY LTD T/AS K AND K PLASTER
AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

RAD BRICKCLEANING AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

EVECON PTY LTD T/AS KYNETON CONCRETE
PUMPING AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

LISSEN DEN PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

LISSEN DEN PTY LTD T/AS CRAIG LAWLER
BRICKLAYING AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

DONCASTER CONCRETE CONSTRUCTIONS PTY
LTD AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING AGREEMENT
2002-2003

TOTAL INSULATION (VICTORIA) PTY LTD AND
CFMEU BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

PH QUEENSLAND PTY LTD T/AS TRIPLE A
SHOPFITTING AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

SABRINA CONSTRUCTIONS PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

ALUCO TECH AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

KEYMAN HOLDINGS PTY LTD T/AS KEYMAN
KITCHEN AND FURNITURE AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

EAST END PRECAST PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

AWG DISPLAY INDUSTRIES AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

MOL INSTALLATIONS PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

F AND M RENDERING PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

FIG INTERIORS PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

AKRON METAL FABRICATORS AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

RUSSELL BRIMS CONTRACTING AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

T AND M KONYN AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

GRAVITY CONTRACTING PTY LTD AND
CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

CITYWIDE CONSTRUCTIONS PTY LTD
AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

MELBOURNE TILING SERVICES AND
CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

JCD PROJECTS PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

EM SIGNS (VIC) PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

ACE COMMERCIAL FENCING COMPANY
AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

PRO-LIFT CRANE SERVICES PTY LTD AND CFMEU
MOBILE CRANE HIRING INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

DOLPHIN COMMERCIAL CLEANERS AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

LULAS PTY LTD AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

HM SHOPFITTING AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

3C CONSTRUCTION PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

A1 CAULKING AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

SJF VIC PTY LTD T/AS ABSOLUTE SAWING
AND DRILLING AND CFMEU BUILDING AND
CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

BETTER GARAGE DOORS PTY LTD AND
CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

BIYAS CO PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

ACE COATINGS PTY LTD AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

RHINO SIGNMAKERS PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

VINCENT PAINTING PTY LTD AND CFMEU
BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT
2002-2005

CFMEU AND W PARNALL CONSTRUCTIONS
PTY LTD RIVERINA AND MURRAY REGIONAL
AREA COLLECTIVE BARGAINING AGREEMENT
2002-2005

FORTER AND CFMEU REFRACTORY
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2003-2006

GBG CONCRETE AND PLASTERING PTY LTD AND
CFMEU BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

STATEWIDE TRAFFIC CONTROL PTY LTD AND
CFMEU BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

ACCURATE EARTHWORKS AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

KNOW HOW CONCRETE TECHNOLOGIES PTY LTD
AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING AGREEMENT 2002-2005

M AND P GLADMAN AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

LUCKY SEVEN EXCAVATION AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005

Applications under section 170LJ of the Act
by the Construction, Forestry, Mining and
Energy Union and Others for certification
of the above agreements

MELBOURNE

11.30 AM, THURSDAY, 20 NOVEMBER 2003

PN1

MR R. WAINWRIGHT: I appear on behalf of the Construction, Forestry, Mining and Energy Union in each of the matters listed and, your Honour, I apologise for being late.

PN2

THE SENIOR DEPUTY PRESIDENT: That is all right, Mr Wainwright. We can't have the show without Punch, can we? Yes, you go ahead.

PN3

MR WAINWRIGHT: Yes. Well, if I can just pick out some of the agreements, your Honour, and perhaps deal with those separately and then perhaps submit to you that we can deal with the remainder of the issues together. There are to my knowledge three of the agreements that are being lodged outside of the 21 day prescribed period. They are AG2003/7992, which was some 16 days late; AG2003/80222, that was four days late and AG2003/8046, that was some six months out of time. In relation to the last matter, your Honour, I would request an adjournment of the hearing of that matter.

PN4

The CFMEU seeks the opportunity to contact the company and further investigate the reasons why the agreement was lodged so far out of time and furnish you with a statutory declaration going to the usual Commission test as to the reason for the delay and any changes in the composition of the workforce over the period. In relation to the first two matters, your Honour, the CFMEU seeks that you exercise your discretion pursuant to section 111(1)(r) to extend the prescribed period, taking into account the brief period of delay and also the large number of agreements that have been administered through the CFMEU.

PN5

It is my instruction that there has not been a change in the composition of the workforce in relation to either of the two companies between the time when the agreement should have been lodged and when they were, in fact, lodged and we believe that in those circumstances it is proper to make such a request. Your Honour, those are the three - - -

PN6

THE SENIOR DEPUTY PRESIDENT: Before you move on then I think there might be a further one, which is 2003/9155, which was two days - from my understanding two days out of time.

PN7

MR WAINWRIGHT: Yes, I see that noted here now, your Honour, as well. Especially in relation to that brief period of delay, I would echo the submissions that I made in relation to 7992 and 8022. So those are the four out of time matters, your Honour. Your associate has informed me that six of the agreements that have been received by your office have not been signed and I think when I appeared before your Honour approximately two months ago a similar thing occurred and a similar thing occurred in relation to some matters being heard by Deputy President Hamilton.

PN8

What occurred on those occasions was that we went to the Registry and we spoke in particular to the officer that looks after the electronic lodgment and what had occurred was that the agreements were lodged in the usual form by the CFMEU. That allowed the Commission to see the signatures on the statutory declarations and the EBA, but in making up the file for the particular offices of the members who were going to hear the applications, only the Word documents that don't have the signatures on them were copied. So instead of the tif documents being copied - and I don't know if you need all of this detail, your Honour - instead of the tif documents being copied, the Word documents were copied.

PN9

So on those occasions the mistake had occurred in the Registry. The CFMEU has already made one mistake today, so we are not beyond making mistakes, but I expect that the same thing has occurred in relation to these six matters and how you want to handle that is in your hands.

PN10

THE SENIOR DEPUTY PRESIDENT: What you are saying is that if we make inquiries through the Registry we should be able to ascertain that the documents as lodged electronically did have signatures?

PN11

MR WAINWRIGHT: Yes, we lodged with the Commission three documents. One is a Word document that the Commission needs for reasons that I don't understand; that doesn't have the signatures. The one that we scanned has the signatures and I presume that those documents are electronically living within the Commission somewhere. But obviously you need the opportunity to have a look at those and act accordingly. Those are my submissions in relation to problems with the agreements. In relation to the substantive applications, your Honour, the CFMEU submits that the requirements of the Act have been met.

PN12

Each of the agreements contains a nominal expiry date that is no greater than three years from the date on which the agreement is to be made. They each contain a disputes resolution procedure. The statutory declarations outline the process that the parties went through in having the agreements approved and the agreements clearly meet the requirements of the no disadvantage test. Your Honour, the CFMEU has at least one member in each of the companies and we are entitled under our rules to represent the industrial interests of those members and we seek that the agreements be certified.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. These are applications for the certification of various agreements under the provisions of the Workplace Relations Act 1996. In relation to matter AG2003/8046, which appears to have been lodged some six months out of time, that matter will be adjourned and the union will have 21 days in which to file with the Commission a statutory declaration in the normal form seeking an extension of time for the lodging of that document. If that is not received within that time and no request for an extension of that time is received, then the application will be dismissed.

PN14

In relation to matters 7992, 8022 and 9155 of 2003 I am prepared in the circumstances to grant an extension of time for the lodging of the applications and such an extension is granted to the date on which the application in each case was lodged.

PN15

In relation to matters 8057, 8058, 8059, 8060, 8061 and 8065 of 2003, inquiries will be made with the registry to ascertain whether or not there is existing electronically somewhere within the system signed copies of the agreement. If that cannot be discovered, then further contact will be made with the union in relation to those matters. If it is discovered that the Commission does have signed copies of the applications, then the agreements will be certified.

PN16

In relation to the balance of the matters before me, I am satisfied on the material before me that I am required to certify each of the agreements and an appropriate certification will be issued in each application. The matters are adjourned on that basis.

ADJOURNED INDEFINITELY [11.39am]