AG2002/6325, Transcript of Proceedings [2003] AIRCTrans 87 (9 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2002/6325

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MG of the Act
by Grocon Constructors Pty Limited to
terminate the Grocon Constructors Pty
Ltd/CFMEU Enterprise Agreement 2001-2003

AG2002/6326

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Grocon Constructors Pty Limited and Another
for certification of the Grocon Constructors/CFMEU
Enterprise Agreement expiring 31 October 2005

SYDNEY

1.05 PM, WEDNESDAY, 18 DECEMBER 2002

Adjourned sine die

PN1

THE VICE PRESIDENT: May I have the appearances, please?

PN2

MR H. SKENE: If the Commission pleases, I seek leave to appear on behalf of Grocon Constructors Pty Limited.

PN3

MR S. MARSHALL: If the Commission pleases, I appear on behalf of the Construction, Forestry, Mining and Energy Union, New South Wales branch.

PN4

THE VICE PRESIDENT: Mr Marshall, is there any objection to the application for leave to appear?

PN5

MR MARSHALL: No, your Honour.

PN6

THE VICE PRESIDENT: Shall we deal with the certification first and then the termination of the earlier agreement?

PN7

MR SKENE: Essentially, your Honour, this new agreement has come about as a result of several weeks of negotiations between the union and the company. We submit that it meets the requirements of the Act pursuant to section 170LT for the purposes of certification. It, together with the other application before you, the application to terminate the current agreement, is intended to provide a seamless transition if you will from the old to the new.

PN8

The content of the new agreement is drawn from the previous agreement. It provides three further pay increases to employees to take place on 1 July next year, 1 March the following year and 1 July in that year also. It was provided to employees on 15 November as set out in the statutory declarations and on that same day the employees agreed to terminate the current agreement and 14 days later by a valid majority they approved this new agreement.

PN9

THE VICE PRESIDENT: What are the wage increases provided for in the agreement?

PN10

MR SKENE: If I can take your Honour to appendix A of the agreement, the first page sets out the classifications, the second page of appendix A sets out the wage increases that are currently in place and that increase on 1 July 2002 in fact occurred under the existing agreement, then there were three increases to take place on 1 July 2003, 1 March 2004 and 1 July 2004.

PN11

THE VICE PRESIDENT: What are the percentage adjustments on each occasion?

PN12

MR SKENE: Three, four and four, your Honour, a total of 11 per cent.

PN13

THE VICE PRESIDENT: All right, well, perhaps if I ask you some questions going to the statutory tests. I note the application states it has been made under Division 2 of Part VIB and that the application was lodged no later than 21 days after the day on which it was approved by a valid majority. Is the employer a party to the agreement a constitutional corporation within the meaning of the Act?

PN14

MR SKENE: Yes, your Honour, it is. The constitutional corporation is Grocon Constructors Pty Limited. The ACN number of that entity is provided in the statutory declaration of Mr Pugliese.

PN15

THE VICE PRESIDENT: Is the agreement about matters pertaining to the employment relationship?

PN16

MR SKENE: Yes, your Honour.

PN17

THE VICE PRESIDENT: The agreement applies in respect of part of a single business?

PN18

MR SKENE: Correct, your Honour, in relation to the part of the business that exists in New South Wales.

PN19

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

PN20

MR SKENE: I am instructed that is the case.

PN21

THE VICE PRESIDENT: Is that organisation entitled to represent the industrial interests of their members so employed?

PN22

MR SKENE: Yes, your Honour.

PN23

THE VICE PRESIDENT: I see what is said about the consultation process. What can you tell me about the valid majority, Mr Skene, as to the vote, the outcome of the vote?

PN24

MR SKENE: Your Honour, the company was informed about the approval by the union. It took place in a closed meeting in which the employer representatives were not present, the statutory declaration of Mr Pugliese is framing why that is.

PN25

THE VICE PRESIDENT: Do you submit that certification of the agreement would not result on balance in a reduction of the over-all terms and conditions of employment of the employees covered by the agreement.

PN26

MR SKENE: In no way, your Honour.

PN27

THE VICE PRESIDENT: The disputes settlement clause - - -

PN28

MR SKENE: It is contained in clause 18, your Honour, it provides a full process.

PN29

THE VICE PRESIDENT: In the event that an unresolved matter is submitted to the Commission, it says that the decision of the tribunal will be accepted as a full and final resolution for disputes subject to rights of appeal. I gather from that it is the intention that if the matter was referred to the Commission it would be dealt with by means of conciliation and where necessary arbitration?

PN30

MR SKENE: That is correct, your Honour.

PN31

THE VICE PRESIDENT: The nominal expiry date from clause 5 is three years from the date of certification, is that right?

PN32

MR SKENE: Yes, your Honour.

PN33

THE VICE PRESIDENT: So it is not as appears on the front page, expiring on 31 October 2005?

PN34

MR SKENE: No, your Honour, it is not entirely clear why that has not been deleted, it has been deleted in a range of versions. The correct normal expiry date would be three years from today.

PN35

THE VICE PRESIDENT: 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 decision or any injunction granted or any order made by the court under that division?

PN36

MR SKENE: Not on my instructions, your Honour.

PN37

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?

PN38

MR SKENE: No, your Honour.

PN39

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

PN40

MR SKENE: No, your Honour.

PN41

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

PN42

MR SKENE: No, your Honour.

PN43

THE VICE PRESIDENT: No preference clauses, nothing of that nature?

PN44

MR SKENE: No, your Honour.

PN45

THE VICE PRESIDENT: Does the agreement contain any bargaining fees?

PN46

MR SKENE: No, it does not, your Honour.

PN47

THE VICE PRESIDENT: All right, thank you, Mr Skene. Mr Marshall, do you agree with the answers that have just been given to the questions I have put?

PN48

MR MARSHALL: Your Honour, I do, yes, I agree with those answers.

PN49

THE VICE PRESIDENT: On the basis of those answers and the material that has been filed in support of the application, I am satisfied the application is consistent with the relevant provisions of the Act and I will issue a certificate certifying the agreement. I will now turn to AG2002/63225, an application to terminate the agreement. Mr Skene, as you know, this is an application pursuant to section 170MG which provides circumstances in which a certified agreement may be terminated by a valid majority. I will run through the provisions of the section.

PN50

This is an application by the employer seeking in writing to terminate the agreement, is that correct?

PN51

MR SKENE: That is correct, your Honour, an agreement that was provided together with a statutory declaration of Mr Pugliese. The agreement is dated 15 November 2002, the statutory declaration of Mr Pugliese is dated 2 December 2002.

PN52

THE VICE PRESIDENT: The nominal expiry date of the 2001-2003 agreement was 1 July 2003?

PN53

MR SKENE: That's correct, your Honour.

PN54

THE VICE PRESIDENT: The essence of the grounds in support is that you made a new agreement, the one that I have just certified, that on 15 November Grocon and the CFMEU agreed to terminate the agreement, details of the termination are in writing and are set out as attachment 1 to Mr Pugliese's statutory declaration.

PN55

MR SKENE: Yes, your Honour.

PN56

THE VICE PRESIDENT: On 15 November a valid majority of employees subject to the agreement generally approved the termination on those terms?

PN57

MR SKENE: That is correct, your Honour. The valid majority approved the termination of the agreement on 15 November at the same time the certified agreement was put to them.

PN58

THE VICE PRESIDENT: I see. What is the difference between 4 and 5, the valid agreement, the new agreement - yes, I see, thank you. All right, well, the provisions of the Act are clear, once I am satisfied that a valid majority of employees generally approved the termination I am required by order to approve the termination of the agreement and termination takes effect when my order takes effect, is that the essence of it?

PN59

MR SKENE: Indeed, your Honour.

PN60

THE VICE PRESIDENT: Is there anything you want to add, Mr Marshall?

PN61

MR MARSHALL: I am just very pleased that there has been a seamless transition between the last agreement and this one, your Honour.

PN62

THE VICE PRESIDENT: So am I. Well, I am satisfied that the requirements of section 170MG are met and on that basis I will issue an order terminating the Grocon Constructors Pty Ltd/CFMEU Enterprise Agreement 2001-2003. Nothing further?

PN63

MR SKENE: Nothing further, your Honour, thank you very much for your assistance.

PN64

THE VICE PRESIDENT: I will adjourn.

ADJOURNED INDEFINITELY [1.15pm]