AG2003/9714, Transcript of Proceedings [2003] AIRCTrans 5443 (8 December 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 5425

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9714

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by Projex Electrical Services Pty Ltd
and Another for certification of the
Projex Electrical Services Pty Ltd -
ETU Enterprise Agreement 2003-2005

MELBOURNE

3.48 PM, FRIDAY, 21 NOVEMBER 2003

PN1

MR F. KENNEDY: I am from the National Electrical and Communications Association. I appear for Projex Electrical Services Pty Ltd.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Kennedy. Mr Kennedy, I have received your statutory declaration. I note there is no other appearance today. Can I take it that you put to me that the information contained in your statutory declaration ought to be relied upon in this matter?

PN3

MR KENNEDY: Yes, it can be, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: Are you going to address me on the question of the timeframe within which the application was lodged?

PN5

MR KENNEDY: Yes. I do propose to do that, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: I invite you to do so now.

PN7

MR KENNEDY: Thank you. The agreement was approved by a valid majority of employees on 15 October. The company's statutory declaration took until 30 October unfortunately to complete. It was then forwarded to the ETU, which signed the ETU statutory declaration on 3 November, received back by me on 10 November, on which date I lodged it. Unfortunately, that process was 26 days and therefore it is 5 days late. I can assure your Honour that the composition of the workforce, which is 18 employees, has not changed at all since 15 October when the vote was taken, so I would ask your Honour to express his discretion under section 111(1)(r) to extend the period of time.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I will use the discretion inherent in section 111 so as to extend the timeframe for lodgment of the application. Mr Kennedy, I have a number of questions about this agreement. The dilemma that I have is that without a union party here I am not sure we are going to be able to progress the matter.

PN9

MR KENNEDY: I was expecting the union party, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR KENNEDY: And I rang just beforehand and was led to believe they were on their way, but obviously they are not because they haven't arrived.

PN12

THE SENIOR DEPUTY PRESIDENT: You see, the dilemma that I have got could be simply summarised. You call it an agreement. It might be because I am foreign to Victoria, I would probably describe it, characterise it, as a playground for future industrial disputation, and in that context I must indicate some substantial reservations in terms of the agreement. The proposal that I have for you is that I will list the matter on one further occasion. In the event that I didn't have two parties, such that I was able to address the parties in this matter, I would foreshadow to you that I would then have to take the non-attendance by the relevant party to indicate they did not wish to proceed with the application.

PN13

I won't set a date for the matter now, but I can foreshadow to you that it will be within the next week or so, and it almost certainly will be by videolink.

PN14

MR KENNEDY: By videolink.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR KENNEDY: Yes, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Do you have any problem with that approach?

PN18

MR KENNEDY: No, I don't, your Honour. It would not be appropriate now, your Honour, for you to indicate your areas of concern I don't suppose, so I could prepare for those.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, I would be very happy to do so now. I don't invite any form of response from you at this stage. There is an initial question relative to the statutory declarations. I take it that the number 3 is code for yes, in terms particularly of the employer statutory declaration. You see, in the number of paragraphs, commencing with paragraph 2.1, the number 3 appears. I take it the intention is that wherever the number 3 appears the answer is effectively yes.

PN20

MR KENNEDY: It is, your Honour, but I will clarify that in the hearing.

PN21

THE SENIOR DEPUTY PRESIDENT: The questions that I had relate to, and in this regard I may extend the actual hearing to give you an opportunity to peruse the transcript and I will just run through them very briefly. Clause 3, in particular 3.1, so as to clarify the intention of the parties with reference to the words "any agreement". 3.2, and the extent to which the intention there is to reference AIRC certified agreements; and indeed, the extent to which inherent in 3.2 is an expectation that further section 170LL agreements would be sought; and further again the extent to which the parties anticipate that there may be protected or unprotected industrial action in pursuit of any such agreements.

PN22

Clause 3.3 gives rise to a similar question as to the propensity for industrial action. In that regard I compare 3.3 with 4.1. Now, 3.8 I take it means that I look at a series of those clauses called common clauses, that appendix A has common application, but that appendices B, C, D, E and F have specific application, whilst appendices G and H have common application. There is an observation that I will make relative to clause 6, such that the proposal that there be no wage or allowances increases applied in the next EBA is clearly a matter for the parties at the time they negotiate any such EBA. The next question I had related to clause 7.3.3 and the extent to which that was proposed to be an enforceable obligation, or that it represented any form of binding obligation relative to a subcontractor.

PN23

Clause 7.5 envisages, as I see it, stoppages of work. I will need advice from the parties relative to their intentions with regard to that clause. In particular, the extent to which the clause envisages that employees may have a say in any such stoppage of work, the status of any proposed stoppage of work, and the extent to which the agreement is perceived to authorise such stoppages of work.

[3.56pm]

PN24

Clause 7.6 gives rise to a question as to what is intended by "legitimate union activity". Clause 7.9 refers to the "alcohol and drug policy" set out in appendix G. And in that regard am I to understand that the parties envisage that those policies, and in particular that policy, may be changed during the life of this agreement - clause 7.14 refers to a date of 1 September 2003 for the development of a code. That date has passed which gives rise to a question as to the extent of the parties' understanding in that regard. Clause 9.1.3 refers to a training program and I seek advice as to the time frame for the development of such a program.

PN25

Clause 9.2 relates to a training committee and I seek advice as to the capacity for persons who may not be members of the ETU to participate in that committee. Clause 12 is the dispute resolution procedure and I seek advice to the effect that I would like to know whether persons who may not be members of the ETU or indeed any union might be represented by a union or a person of their choice. Further, in relation to clause 12, clause 12.2.8 talks of the reference of a matter to the Australian Industrial Relations Commission as an alternative to the Disputes Board.

PN26

I seek clarification from the parties as to the role of the Commission in terms of whether or not the Disputes Board might be accessed prior to the Commission or - or the reverse might apply. Clause 13.1 relates to union membership and in that regard I will be seeking an undertaking from the employer such that all prospective employees will be advised that union membership will not be taken into account in a decision to employ them or any decisions relative to their employment. Clause 15 relates to the ETU picnic day and I seek advice that an employee need not be a member of the ETU so as to qualify for payment for that day.

PN27

Clause 18.1, but as it appears on page 25, relates to or contains a provision in the second last paragraph of 18.1 which gives rise to a question as to how the parties intended that provision to operate and in that regard I need to advise that I will have particular regard to the freedom of association provisions in the legislation. Clause 18.2 talks of the Co-Invest long service leave arrangement and the question that I have there goes to the extent to which the employee might have access to information.

PN28

Clause 19 relates to income protection insurance and I seek advice from the parties to confirm that they have a common understanding of the extent and the duration of that insurance cover. Clause 30, on page 31, proposes that the company will become a party to the relevant agreement governing or covering multi-storey commission flat refurbishing. I seek advice as to the intention of the parties in that regard. Clause 35 relates to leave reserved. Once again I seek advice in terms of the intention of the parties and in that regard my questions relative to that provision closely relate to the earlier questions relating to no extra claims and the operation of other agreements.

PN29

If I can then take you to clause - I think it is probably best that I refer to this as page 42 which again envisages that industrial disputation may occur and in that regard I seek advice from the parties as to the extent to which this agreement legitimises or authorises any such action. Page 63 refers to the need to develop - or the intention to develop an inclement weather policy prior to 1 September 2003. That is a date that has passed and gives rise to a question over whether or not such a policy exists, is documented and readily available to employees.

PN30

Mr Kennedy, that might help you. It is a substantial list and, as I indicated to you, I will delay the hearing of the matter for a few extra days so that you can peruse the transcript.

PN31

MR KENNEDY: Thank you, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [4.02pm]