AG2003/763, Transcript of Proceedings [2003] AIRCTrans 618 (25 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT1569

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2003/763, 764, 902, 903, 904, 905,
906, 907, 908, 909, 910, 911, 912,
913, 914, 915, 916, 917, 918, 919,
920, 921, 922, 923, 924, 925 and 926

MELBOURNE SAWING & DRILLING PTY LIMITED
AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CAULK-IT PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CELTIC STRATEGIES (AUSTRALIA) PTY LIMITED
AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

KELVIN WAY PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

EXAR CONSTRUCTIONS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CHRIS OAKLEY PLASTER AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MC LABOUR SERVICES PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

GRANITE TRANSFORMATIONS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AUSCRETE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

CONTECH CUTTING PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ADWILL BRICKLAYERS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

TOPLINE SEAL PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PETROS ZIOVAS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SAS GENERAL STEELFIXING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

SEAL CARPENTRY AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

RICAN CONTRACTORS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

EZY STEEL PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

L & D HEANE AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PETER KING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

PARKFORM CONSTRUCTIONS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

JOHN HUSSEINI TRADING AS MEND-A-BATHROOM (MELBOURNE: NORTH-WEST) AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

ALOHA POOLS PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

TROWEL CRAFT COMMERCIAL PLASTERING AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

AAA SEATING AUSTRALIA PTY LIMITED AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MELBOURNE PEST CONTROL AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

A.A. STYLE MASTER PAINTERS AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

MD & WM POYNER AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

BENMATT CONSTRUCTIONS 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
for certification of the above agreements

MELBOURNE

1.30 PM, FRIDAY, 7 FEBRUARY 2003

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining PN1

and Energy Union.

PN2

THE VICE PRESIDENT: Thank you, Mr Wainwright. Mr Wainwright, each of the agreements before me are in similar terms, well, other than the name of the employer.

PN3

MR WAINWRIGHT: Yes, your Honour.

PN4

THE VICE PRESIDENT: And subject to your agreement I would propose to hear them altogether if there is no objection.

PN5

MR WAINWRIGHT: No objection, your Honour.

PN6

THE VICE PRESIDENT: If your answers differ as between the agreements you should let me know as Mr Fisher did in the previous matter. I note that each of the applications state they were made under division 2 of part VIB. That a number of the applications were outside the 21-day time period. Those are numbers 763, 764, 901 through to 904, 906, 908, 913 through to 915, 917 through to 920 and 924. The periods of which they are out of time in the most part is three to four weeks. There is one that was two weeks, one that was five weeks and one that was six weeks out of time. Do you have a statutory declaration dealing with those matters?

PN7

MR WAINWRIGHT: Yes, your Honour. I have handed up a statutory declaration that deals with each of the matters with the exception of 908 and the statutory declaration pretty much splits the agreements into two parts. The greater number of the applications were agreed before Christmas and the valid majority vote was held before Christmas but the employers had not completed their statutory declaration until this year. So we were unable to lodge within time.

PN8

I think in two of the matters the employers had completed their statutory declarations last year but due to the industry shutdown and the unavailability of our secretary our statutory declarations weren't completed until the start of this year. So I think most of these applications were lodged with the Commission on or around 20 January, perhaps the 23rd sounds correct, which is a little more than a week after our office reopened and we had access to our secretary. So that is the delay.

PN9

THE VICE PRESIDENT: Which one is not covered by the stat dec?

PN10

MR WAINWRIGHT: The one that is not covered is 908 and, your Honour, I make no submissions on that - well, I have no instructions on 908 as to what has happened there. I presume that that falls within the same category as is covered in the statutory declaration.

PN11

THE VICE PRESIDENT: Okay. Well, leaving aside 908 for the moment. In relation to the others I accept the reason given in the statutory declaration. Do I take it that your instructions are that there has been no significant change in the composition of the workforce in each of these cases?

PN12

MR WAINWRIGHT: Yes, your Honour, I deal with that in the statutory declaration.

PN13

THE VICE PRESIDENT: Do you?

PN14

MR WAINWRIGHT: At about the third last paragraph. I have neglected to number the paragraphs, your Honour.

PN15

THE VICE PRESIDENT: Yes, I see. I am sorry, Mr Wainwright, I was looking at each of the paragraphs setting out each of the AG numbers and had skipped over the last one on the first page. Yes, I see. Okay. Thank you. Well, in relation to each of the matters in which the statutory declaration goes to I am content to accept the applications outside the 21-day time period. In relation to 908 I will provide you with a period of seven days within which to file a statutory declaration dealing with the extension of time issues and the questions I am about to ask you will also go to 908. So in the event I am satisfied by the statutory declaration and I am satisfied the other agreements meet the relevant statutory test, then I would also certify 908.

PN16

Are the employers parties to these agreements constitutional corporations within the meaning of the Act or employers in Victoria within the meaning of section 494?

PN17

MR WAINWRIGHT: Yes, they are, your Honour.

PN18

THE VICE PRESIDENT: I note that written copies of the agreements have been submitted for certification. Do you say that each of these agreements are about matters pertaining to the employment relationship?

PN19

MR WAINWRIGHT: Yes, they are.

PN20

THE VICE PRESIDENT: I take it from the statutory declarations that all of these agreements are in respect of a single business.

PN21

MR WAINWRIGHT: Yes.

PN22

THE VICE PRESIDENT: Does your organisation have at least one member employed in the relevant single businesses whose employment would be subject to these agreements?

PN23

MR WAINWRIGHT: We do.

PN24

THE VICE PRESIDENT: And is it entitled to represent the industrial interests of its members so employed?

PN25

MR WAINWRIGHT: Yes, we are, your Honour.

PN26

THE VICE PRESIDENT: I note what is said about the steps taken to provide employees with access to the agreement and to explain its terms. In respect of each of these agreements was a vote taken of the employees employed at the time whose employment would be subject to the agreement about whether they approve the agreement?

PN27

MR WAINWRIGHT: Yes, there was.

PN28

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

PN29

MR WAINWRIGHT: Yes, your Honour.

PN30

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

PN31

MR WAINWRIGHT: Yes, they were.

PN32

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

PN33

MR WAINWRIGHT: No, it would not.

PN34

THE VICE PRESIDENT: Okay. In relation to the balance of the questions that I put to Mr Fisher - you were present during that - do you adopt his answers in respect of the dispute settlement clause, the nominal expiry date, termination of employment, negotiating conduct, discrimination and objectionable provisions?

PN35

MR WAINWRIGHT: Yes. I just add the clarification that the disputes resolution procedure at clause 9 gives the power to the Commission to arbitrate if necessary.

PN36

THE VICE PRESIDENT: Yes. No, I note that that is explicit in the current agreement. All right. Thank you, Mr Wainwright. I am satisfied in respect of each of these matters that the applications meet the relevant statutory tests and I will issue a certificate certifying the agreements except for matter number 908. In that case I will await a statutory declaration from you dealing with the extension of time. Subject to that issue being resolved satisfactorily I would issue a certificate certifying that agreement as I am satisfied that in other respects it meets the relevant statutory test. Nothing further? I will adjourn.

ADJOURNED INDEFINITELY [1.37pm]