AG2003/928, Transcript of Proceedings [2003] AIRCTrans 971 (21 March 2003)

AUSCRIPT PTY LTD
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Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
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TRANSCRIPT OF PROCEEDINGS

O/N 9226

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

AG2003/928

APPLICATION FOR CERTIFICATION
OF AGREEMENT WITH EMPLOYEES
(DIVISION 2)

Application under section 170LK of the Act
by Joe Fagan Earthmoving Pty Limited for
certification of the Joe Fagan Earthmoving
Pty Limited Bluff Point Wind Farm Project
Enterprise Agreement 2003-2004

HOBART

1.19 PM, WEDNESDAY, 5 MARCH 2003

PN1

MR W. FITZGERALD: I appear on behalf of Joe Fagan Earthmoving Pty Limited.

PN2

THE DEPUTY PRESIDENT: No employees?

PN3

MR FITZGERALD: No employees, Deputy President. I am aware, I have become aware recently of your request to handle matters like this. The explanation is that these employees which are there are a few I think, there is seven employees covered by the agreement are in fact engaged already at the wind farm in remote north west Tasmania. I attempted to get hold of one of the employees this morning, in fact the employee who signed the statutory declaration and I in fact was told that there was no mobile coverage.

PN4

I think despite notwithstanding the absence of employees, you know, in my submission the documentation is in order, but there are - there is one particular factor which I think may assist the Commission through this process if I could refer to that. Deputy President, this - you are probably aware that this wind farm project I think is the second phase, not that I have been intimately involved with any of the phases yet at this point, but it seems that we are getting involved more so now.

PN5

The original phase was, or part of the project was I understand the successful head contractors there were John Holland and Shaw Contracting. In this part of the project, the second phase if I can call it, or the Bluff Point Wind Farm, the head - the successful contractor was in fact Stubbs Construction which is a local firm.

PN6

THE DEPUTY PRESIDENT: All right.

PN7

MR FITZGERALD: They put together, again we didn't have any involvement in this, I think the - Mr Maurie Howard of the MBA I could be wrong there, in fact assisted Stubbs Construction to put together an agreement which was certified by V.P. Ross who I have a copy for you if you like. And the reason - if I can provide that copy. I don't know if that needs to be marked as an exhibit or is it just a - - -

PN8

THE DEPUTY PRESIDENT: No, it is a Commission - - -

PN9

MR FITZGERALD: It is a Commission document anyway of course. The reason why I provide this is that effectively provides if you like the project rates and conditions. And you will see that the rates and conditions, and particularly the comparison and there is a phasing in over this year and next year, a comparison of the rates and conditions particularly in the case of the Joe Fagan agreement where they are mainly plant - or they are only plant operators at the CW3 100 per cent level, the rates are in fact identical.

PN10

Now, the agreement came about I suppose in accordance with the project rates and conditions and generally reflects those project's rates and conditions. That in itself is obviously not a good reason necessarily to ratify the agreement, but what I say in respect of that is that the rates are contemporary rates and conditions applying to this contractor as it is to the head contractor, Stubbs Constructions.

PN11

THE DEPUTY PRESIDENT: Is there any transcript of the proceedings before V.P. Ross?

PN12

MR FITZGERALD: I haven't been able to get hold of that. If that assists I could - I wasn't involved in that as indicated, but I could get that if you wish.

PN13

THE DEPUTY PRESIDENT: Yes, because I have - I mean I just have a number of problems with the agreement.

PN14

MR FITZGERALD: Right.

PN15

THE DEPUTY PRESIDENT: It may or may not be the same as this one, I haven't looked at all the details. But I can't - I am unable on what I have got to relate the classifications to the award classifications, as to which classification under the award the agreement classifications are to relate to.

PN16

MR FITZGERALD: Right.

PN17

THE DEPUTY PRESIDENT: If I just tell you all the problems I have got with it, then maybe we can then - - -

PN18

MR FITZGERALD: Certainly. Do you want me to sit down for a moment and just - so I can copy these down?

PN19

THE DEPUTY PRESIDENT: Yes, it might be easy because there are a few. It talks about at clause 3.1 daily hire. Daily hire to my understanding is casual, but there doesn't seem to be any definition of daily hire.

PN20

MR FITZGERALD: Can - without being intimately involved with the drafting, doesn't distinguish that it is not a casual employee or part time employee?

PN21

THE DEPUTY PRESIDENT: Well, I don't know what it does. It says it is not casual, it is not part time.

PN22

MR FITZGERALD: Right.

PN23

THE DEPUTY PRESIDENT: But daily hire from my experience, certainly in the meat industry is casual for which they get a 10 per cent loading for each day worked. Now, I don't think that is the intent.

PN24

MR FITZGERALD: No, I don't think it is.

PN25

THE DEPUTY PRESIDENT: But if they are meant to be permanent why not call them permanent?

PN26

MR FITZGERALD: I think - - -

PN27

THE DEPUTY PRESIDENT: Or is there some reason for referring to them as daily hire?

PN28

MR FITZGERALD: I think mainly, my guess and I think I am right here, is because it is a project with a defined life that is why they are not called permanent employees.

PN29

THE DEPUTY PRESIDENT: Well, they are just weekly employees.

PN30

MR FITZGERALD: Yes.

PN31

THE DEPUTY PRESIDENT: I just don't know - I don't understand the terminology daily hire.

PN32

MR FITZGERALD: I will have to get some - I will take that on notice and get clarification.

PN33

THE DEPUTY PRESIDENT: Sure, because as I say there is no definition of daily hire.

PN34

MR FITZGERALD: Right.

PN35

THE DEPUTY PRESIDENT: The document at clause 3.2, dot point 2 talks about appendix A. I can't seem to find an appendix A, but I presume it is just the rates?

PN36

MR FITZGERALD: I think it is actually contained in the draft.

PN37

THE DEPUTY PRESIDENT: Yes, contained, it is clause 4.1 I presume or 4.2 at least not appendix A.

PN38

MR FITZGERALD: Yes, well I need to clarify that. I think that is - there would be no other rates which apply.

PN39

THE DEPUTY PRESIDENT: Well, there doesn't appear to be.

PN40

MR FITZGERALD: No.

PN41

THE DEPUTY PRESIDENT: The award is a 38 hour week, this is a 40 hour week.

PN42

MR FITZGERALD: Yes.

PN43

THE DEPUTY PRESIDENT: There are no penalties paid, is that - - -

PN44

MR FITZGERALD: That is right.

PN45

THE DEPUTY PRESIDENT: So the rates are inclusive of all penalties?

PN46

MR FITZGERALD: That is right.

PN47

THE DEPUTY PRESIDENT: Right.

PN48

MR FITZGERALD: So would you want some detailed - - -

PN49

THE DEPUTY PRESIDENT: Some formula as to how that is worked out.

PN50

MR FITZGERALD: Right.

PN51

THE DEPUTY PRESIDENT: And there is fares and travelling allowance at 7.1, I am not too sure what provision in the award if it is in the award, that relates to.

PN52

MR FITZGERALD: So you want a comparison with the award in that respect? I am happy to do that.

PN53

THE DEPUTY PRESIDENT: Yes. If you can do that.

PN54

MR FITZGERALD: Yes.

PN55

THE DEPUTY PRESIDENT: Other than that.

PN56

MR FITZGERALD: Would it assist if I got - and look I agree with you that just because one member of the Commission - that was the purpose in presenting the agreement, it was just to show you that it was consistent with it.

PN57

THE DEPUTY PRESIDENT: No, I must say I am surprised. V.P. Ross is, by reputation anyway, far more particular than I have been.

PN58

MR FITZGERALD: Right, I don't know him actually.

PN59

THE DEPUTY PRESIDENT: But it could have been put through with many, many others because I know he sometimes puts through hundreds at once.

PN60

MR FITZGERALD: Right, do you want me to get the transcript?

PN61

THE DEPUTY PRESIDENT: We can possibly track that down.

PN62

MR FITZGERALD: Okay, that would be good.

PN63

THE DEPUTY PRESIDENT: It is only recent. I am just - - -

PN64

MR FITZGERALD: Have you had any other agreements like this, so far with this project, again I am sort of have been on the periphery of it? The Hydro project?

PN65

THE DEPUTY PRESIDENT: Where did they go? I think there was something to do with the Hydro where the union's intervened and I think they have gone away to - - -

PN66

MR FITZGERALD: I am aware of that, what happened with that. The CEPU particularly I think wasn't it? But as again we have only been - it looks like we are going to become more involved, so I will get a better handle on it. It is a little bit like, although they are not LJs the Duke project and there are project rates and conditions, but I am - - -

PN67

THE DEPUTY PRESIDENT: I have got no difficulty with that concept, it is just that I, you know, I have a statutory responsibility.

PN68

MR FITZGERALD: Of course, yes and look we - - -

PN69

THE DEPUTY PRESIDENT: And seeing as there is an inquiry into this sort of industry and criticisms of the way the Commission does these things.

PN70

MR FITZGERALD: Certainly. What about the employees, there is a real difficulty in getting them here because they are just full time on the project up there?

PN71

THE DEPUTY PRESIDENT: Look seeing as there are only seven of them, if I am happy with the agreement, if I can understand it, I would take it that they could understand it.

PN72

MR FITZGERALD: Yes.

PN73

THE DEPUTY PRESIDENT: And a stat dec from them is possibly suffice.

PN74

MR FITZGERALD: Statutory dec from each of them?

PN75

THE DEPUTY PRESIDENT: Or one can speak on behalf of them.

PN76

MR FITZGERALD: Right. So the fellow who signed the stat dec?

PN77

THE DEPUTY PRESIDENT: Yes.

PN78

MR FITZGERALD: Okay.

PN79

THE DEPUTY PRESIDENT: The sort of thing I need to know is that they understand what the agreement provides for them, what their obligations are under it and that there hasn't been any duress as to the signing of it.

PN80

MR FITZGERALD: Right, look I can achieve that.

PN81

THE DEPUTY PRESIDENT: All right. Well, what if we do it on that basis and then once you have got that information we should, hopefully, be able to put it through.

PN82

MR FITZGERALD: So would you need to reconvene the hearing or would I just provide a - - -

PN83

THE DEPUTY PRESIDENT: I have got to have something on the record, yes.

PN84

MR FITZGERALD: Right, okay. No, I appreciate that and I understand and I hope you don't sort of see as slackness on my part because I - - -

PN85

THE DEPUTY PRESIDENT: It is not one of your agreements as I know.

PN86

MR FITZGERALD: No, that is precisely it.

PN87

THE DEPUTY PRESIDENT: It may be for your benefit you get involved in the negotiations so you know what is being certified.

PN88

MR FITZGERALD: I think that is probably most likely going to happen.

PN89

THE DEPUTY PRESIDENT: Good, yes, that will a step in the right direction.

PN90

MR FITZGERALD: I mean I think I certainly favour more of a Duke-type approach where you have a, you know, an overall management of the process.

PN91

THE DEPUTY PRESIDENT: Yes, well that seemed to work well.

PN92

MR FITZGERALD: It did, yes.

PN93

THE DEPUTY PRESIDENT: And was successful in the long term.

PN94

MR FITZGERALD: Certainly. Well, I have got all those details so I will achieve those as quickly as I can.

PN95

THE DEPUTY PRESIDENT: Okay, well we will adjourn this and I will just wait until you come back to me.

PN96

MR FITZGERALD: Okay. Thank you.

PN97

THE DEPUTY PRESIDENT: Thank you.

ADJOURNED INDEFINITELY [1.47pm]