AG2004/1071, Transcript of Proceedings [2004] AIRCTrans 1262 (2 April 2004)

AUSCRIPT PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1541

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1071

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by McMahon Services Pty Ltd and Another
for certification of McMahon Services Pty
Ltd Enterprise Agreement 2004

ADELAIDE

10.20 AM, TUESDAY, 23 MARCH 2004

PN1

MR M. HOWARD: I appear for McMahon Services Proprietary Limited.

PN2

MR A. HARRIS: I appear on behalf of the CFMEU.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Howard, I can advise you that I have read the agreement and the statutory declaration. I understand you have just handed up to me the statutory declaration of Mr Harris.

PN4

MR HOWARD: That is correct, your Honour.

PN5

THE COMMISSIONER: I haven't read that declaration, however, on the basis of the employer statutory declaration the initial issue that arises is that it appears that the application was lodged outside of the time limit prescribed in section 170LM of the Act.

PN6

MR HOWARD: Yes, we would be seeking under section 111(1)(r) an extension of the prescribed time. The reason being, your Honour, that Mr David McMahon, who is the managing director of McMahon Services Proprietary Limited was unavailable due to business commitments outside the State and on 3 days of that particular week I was in Sydney myself. As soon as we were able to get together we sat down and completed the documentation necessary for the agreement to be signed with all the statutory declarations and the application.

PN7

THE SENIOR DEPUTY PRESIDENT: Were there any changes to the make up of the workforce over that period of time?

PN8

MR HOWARD: I asked Mr McMahon that at the time. There were no changes to the make up of the workforce between the date of signing the document and the date the statutory declarations were signed and submitted to the Commission, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: The next procedural question that I have of you goes to the requirement that employees had, or had reasonable access to the agreement in writing, at least 14 days before they approved it. To what extent can you reassure me in that regard?

PN10

MR HOWARD: The documents, yes, they were, your Honour, I have a letter that Mr McMahon actually sent to me on 20 February confirming that Mr Allan Harris from the CFMEU had agreed with the terms of document and had signed as the CFMEU rep. It says:

PN11

Please be advised the document was provided to our employees and explained to them on 2 February.

PN12

The men had a meeting and it was signed by McMahon Services and the union on 18 February 2004.

PN13

THE SENIOR DEPUTY PRESIDENT: The employees voted on 16th?

PN14

MR HOWARD: The employees voted on the document and as a result of that vote the document was then signed off by the union and the employer as the CFMEU was the representative of the collective employees at that time.

PN15

THE SENIOR DEPUTY PRESIDENT: The employees voted on the document on 16 February?

PN16

MR HOWARD: That is, as I understand it, and because of the requirements - whilst they had their meeting, the document wasn't signed off until 18 February.

PN17

THE SENIOR DEPUTY PRESIDENT: I understand that. The document though was given to employees on what date?

PN18

MR HOWARD: The document was provided to the employees on 2 February and there had been a document prior to that, but that as the final document was 2 February where they had a meeting to explain the changes that had been made to the previous document and then the men had their own meeting on 16 February and obviously then must have - I'm not sure whether Mr Harris was there, but obviously relayed to Mr Harris their agreement. Then the document was signed off by the employer-employee parties on 18 February.

PN19

THE SENIOR DEPUTY PRESIDENT: I have no further questions about the process, Mr Howard, at this stage. Mr Harris, can I take it that you agree with Mr Howard's assertion that there were no changes in the make up of the workforce for the period for which an extension of time is sought?

PN20

MR HARRIS: Yes, Commissioner. We had the document voted on actually before Christmas. The only thing that was necessary to work out between the employer and ourselves was the 37-cum-36 hour week. When we finalised that one section we put that back in the document and went back to the men and they revoted.

PN21

PN22

THE SENIOR DEPUTY PRESIDENT: There were no changes in the workforce for the period in question?

PN23

MR HARRIS: No, hadn't even anyone left.

PN24

THE SENIOR DEPUTY PRESIDENT: Was it the CFMEU that explained the agreement to the employees? It looks to be the case given the answer to question 6.5 in the statutory declaration?

PN25

MR HARRIS: Yes, although in this case the employer, with us, had a combined meeting on two instances with the men, but when we came to the final one with that 36, 37-hour clause it was only myself that met with the men.

PN26

THE SENIOR DEPUTY PRESIDENT: Of the total number of employees a small number are under the age of 21 and/or of Aboriginal or Torres Strait Islander descent. Am I to understand that the CFMEU is satisfied that those people were able to understand the explanation given about the agreement?

PN27

MR HARRIS: I specifically take those people that fit in the other category to one side and explain: you are not really different, it is only because you are not as old as everyone else, and make sure that they understand, even without the rest of the men being present.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, I'm going to ask Mr Howard a few questions about the agreement. As you would know, there is a standing invitation for you to jump and disagree with him should you choose to do so. Alternatively, you might want to add something to his answers. The first question I have, Mr Howard, relates to clause 3.5 and, in particular, to 3.5.3 on page 8. There is a reference here to clause 3.7.1. Is that what is intended?

PN29

MR HOWARD: I would say that was a typing error. It should be 3.5.1. Some of these changes were made by the company itself.

PN30

THE SENIOR DEPUTY PRESIDENT: Clause 3.10.7 on page 11 refers to the construction industry drug and alcohol policy. I understand that policy is documented, readily available to employees and is, in fact, endorsed individually by the employees and as such may be changed during the life of the agreement?

PN31

MR HOWARD: That is correct, your Honour, and if it was changed during the life of the agreement would be by a vote of the employees on the site at the time.

PN32

THE SENIOR DEPUTY PRESIDENT: Clause 4.1.1.3 on page 14. Who determines whether the new employee has, or has not, had adequate experience in either demolition, or asbestos removal work?

PN33

MR HOWARD: That would be determined at the time the person was employed. There are people who move from one employer to another who may have worked previously for one of the other companies who do either demolition, or asbestos. There are probably about four or five major players in the area, although there is probably two major players and the rest are in the medium size group down to the smaller group. That would be determined at the time when the employee is employed by the employee and the employer as to the experience of the person in either of those fields.

PN34

THE SENIOR DEPUTY PRESIDENT: Clause 4.4 on page 15 refers to an employee on a demolition project which has a value of greater than $150,000. Am I to understand that reference to $150,000 is to the value of the demolition work, as distinct from the potential value of the project?

PN35

MR HOWARD: Yes, solely and wholly. Solely and wholly the value of the demolition work.

PN36

THE SENIOR DEPUTY PRESIDENT: Clause 4.6.3, I understand then that what the parties are saying is that a 10 per cent payment will be made on a weekly basis effective from the date the employees signed the agreement. Is that correct?

PN37

MR HOWARD: That is correct, your Honour. Instead of the normal 9 per cent, it would be 10 per cent.

PN38

THE SENIOR DEPUTY PRESIDENT: That payment would be made on a weekly basis?

PN39

MR HOWARD: Well, it is made on a monthly basis to the C-Bus and it must be made on a monthly basis because there is only 28 days grace on the coverage for death and invalidity benefits. So the employer must pay by the due date.

PN40

THE SENIOR DEPUTY PRESIDENT: Now, 5.3 on page 18 prescribes a rest period of 10 minutes between 9 am and 10 am. 3.10.11 talks of a 10-minute crib break at 9.30 am.

PN41

MR HOWARD: Yes, depending on the - - -

PN42

THE SENIOR DEPUTY PRESIDENT: We are talking about the same creature which might be granted between 9 am and 10 am, is that correct?

PN43

MR HOWARD: It could be, depending on the site and the process of work on the site. It is possible with asbestos removal because if they are actually removing asbestos there are special provisions that come into play and rest periods could occur more frequently, paid rest periods because of the nature of the work. The fact they are in suits and it gets very hot in there, that the rest periods come at a greater rate than the normal work processes.

PN44

THE SENIOR DEPUTY PRESIDENT: Am I to understand then that clause 5.4 should be read in the same way, insofar as it relates to the provisions of clause 3.10.11, so that it simply provides for greater flexibility?

PN45

MR HOWARD: That is correct, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 on page 29 talks of the development of a training program. Am I to understand that will occur over the duration of the agreement?

PN47

MR HOWARD: Yes, that is true, your Honour. New employees and even the current employees are continuously trained in the methods of asbestos removal and demolition as those processes can change.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 9.1.9 on page 30 talks of the McMahon Services Proprietary Limited occupational health safety and welfare policy as amended. As I to understand that policy is documented and readily available to all employees?

PN49

MR HOWARD: That is correct. There is a policy and a manual which sets out the work procedures.

PN50

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 refers to the industry agreed procedure on inclement weather or extremes of heat. Am I to understand that that procedure is the procedure agreed between the MBA and the CFMEU, but more particularly that it is documented in a coloured brochure readily available to all employees wherever they may be working?

PN51

MR HOWARD: That is correct, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Clause 9.3.1 references an appendix 1. Where will I find that, Mr Howard?

PN53

MR HOWARD: I noticed that myself in my document. This is the third agreement with McMahon Services, it was attached in the past to the document. It is a document that provides for clothing and safety footwear to be provided by the employer and replaced on a fair wear and tear basis. So that people will always have good quality safety footwear and the clothes will be up to the required standard without being tattered and torn.

PN54

THE SENIOR DEPUTY PRESIDENT: Was the appendix 1 appended to the document that the employees voted on?

PN55

MR HOWARD: I understand it was. It is the continuing appendix 1, as I said, that has been in vogue now for some 6 years and this would be the third enterprise agreement with that document attached to it.

PN56

THE SENIOR DEPUTY PRESIDENT: What you are saying to me is that some time between the date that employees voted to endorse the agreement, or approve the agreement, and the filing of the document, appendix 1 was operated?

PN57

MR HOWARD: I understand that is correct. Mr McMahon did make comment to me about that when I questioned the fact that appendix 1 was not attached. He said it was the same appendix that had been attached to the previous two agreements and that had not been changed in that period of time, but it was part of the whole package of the agreement.

PN58

THE SENIOR DEPUTY PRESIDENT: Now, could you provide the appendix 1 in the form that it was given to employees?

PN59

MR HOWARD: I could provide that to the Commission within the next week, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Can I take then that you could not only provide it to me, but you could provide it to me in a form which had previously been considered by the CFMEU to make sure that you are talking of the same document?

PN61

MR HOWARD: Yes, I will make sure that this is the document that everybody is aware of.

PN62

THE SENIOR DEPUTY PRESIDENT: Finally, Mr Howard, if I take you to the signatory page. I note there are no signatures on the part of employees, but there is a space for them to sign the agreement?

PN63

MR HOWARD: Yes, I'm not sure as to why that occurred. Mr Harris is better informed than me in respect of that, your Honour. I do know that Mr Harris and Mr McMahon, according to the letter sent to me, the document was signed on 18 February even though I noticed there was no date certified on the agreement.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, perhaps we will work backwards. Was it raining on the day that the employees would normally have signed the document, or was it extraordinarily hot, or was there some other climatic reason why it is that the employees wouldn't, or couldn't sign the document?

PN65

MR HARRIS: Yes, I explained to Mr McMahon if I had of done the document it would have no longer been in-house and I said: but if you have got it in it and you want to try and get someone to sign - the three people that were on the committee said they were quite satisfied with my signature and they didn't feel they wanted to sign it and so it was left at that.

PN66

THE SENIOR DEPUTY PRESIDENT: So what you are saying to me there is, notwithstanding the lack of any employee signatures in that space, I shouldn't reach any adverse conclusion about the extent to which the requirements of the Act have been met?

PN67

MR HARRIS: That is correct.

PN68

THE SENIOR DEPUTY PRESIDENT: If Mr Howard were to provide to you that appendix 1 that was omitted from the document when the application was made, can I take it that you could endorse that as a document that you understand was given to the employees at the time when the agreement was given to them?

PN69

MR HARRIS: When we actually went through the meetings we had the existing agreements on hand, because we had some people that felt they were lawyers and wanted to quote every sort of sentence. When we got to the clothing, I don't personally agree with the agreement of the clothing, but the men did and they fully understood it. They didn't get an individual copy of it, but we had about a dozen existing agreements that the men looked at.

PN70

The major difference to the standard first one we have - that other companies have is, I believe, was just timing on getting the jackets. Certain ones of McMahon Services are supplied socks and undies and everyone wanted them, but they weren't allowed to it. They were the asbestos people that remove all their clothing as they go in and out the shields. So the only major difference between that and the standard agreement that we have with the MBA and the industry is the timing, I believe, on the jackets.

PN71

THE SENIOR DEPUTY PRESIDENT: I'm not so much worried about whatever standard arrangement you may have reached with the Master Builders Association, but I'm more concerned about whether the employees at the time this agreement was given to them, that is 14 days before they voted on it, had a document with an appendix 1 in it, because if they didn't - - -

PN72

MR HARRIS: Yes. As I said, there was about a dozen of the documents and a couple of people pick them up, raise questions - - -

PN73

THE SENIOR DEPUTY PRESIDENT: I see.

PN74

MR HARRIS: - - - and the only document was these copies of the previous agreement with it in.

PN75

THE SENIOR DEPUTY PRESIDENT: So that if Mr Howard gave you this appendix 1 you could endorse it in some form as being a document that was given to the employees with the agreement?

PN76

MR HARRIS: Correct, although I do believe it was the document before. I'm not even sure if it was in the last document, but I had previous EBAs that the men looked - the major reasons the men wanted to see what changes there were between this document and that was one of the clauses.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, but you see there are two options here. One is that I could receive appendix 1 on the basis that it was provided to the employees with this document at the time this document was provided and was available to them when they made, or when they approved the agreement.

PN78

MR HARRIS: I'm very happy in my mind to say that was done.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN80

MR HARRIS: I'm satisfied in my mind to say that was done.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you. Are there any other comments you want to make about any of Mr Howard's responses?

PN82

MR HARRIS: Yes, two parts - one, I'm just turning to it, the business about the smoko break.

PN83

THE SENIOR DEPUTY PRESIDENT: It is 5.4 or thereabouts - - -

PN84

MR HARRIS: Page 8.

PN85

THE SENIOR DEPUTY PRESIDENT: - - - in comparison to 3.11.

PN86

MR HARRIS: The only misunderstanding Mr Howard must have had is, while I do agree with his answer and it should be the case, the unfortunate thing is with the asbestos removal, while they get an allowance, they actually forgo that rest period. They don't have extra rest periods. I personally agree with what Mr Howard said, but it is part of the break-up. If you look in the asbestos thing under the wages and you will see in the wet asbestos - - -

PN87

THE SENIOR DEPUTY PRESIDENT: Which clause number are you referring to?

PN88

MR HARRIS: I'm just about to get to it.

PN89

MR HOWARD: 4.2.2, page 14.

PN90

MR HARRIS: 4.2.2, page 14.

PN91

THE SENIOR DEPUTY PRESIDENT: I see. So that employees who are working with - - -

PN92

MR HARRIS: Wet asbestos.

PN93

THE SENIOR DEPUTY PRESIDENT: - - - wet asbestos don't receive the break that is referenced in both clause 5.3 and 3.10.11?

PN94

MR HARRIS: That is correct.

PN95

THE SENIOR DEPUTY PRESIDENT: But other employees would do so?

PN96

MR HARRIS: Yes. And last on that one, and it is my last comment, is in the main most of his employees start at 7, so their smoko is at 9.30. That avenue is in there on some jobs. When we start at 6 the whole thing moves forward; the lunch break moves forward, smoko - - - Apart from that, I'm in agreeance with Mr Howard with what he has raised.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me in the employer's statutory declaration and the CFMEU statutory declaration that I've briefly looked through this morning, I am satisfied that the agreement was reached through a process consistent with the Act. I'm equally satisfied that the agreement itself is of a nature and duration such as to warrant certification. In that regard I note it is of a duration envisaged by the Act, contains the necessary dispute resolution procedures and meets the requirements of the no-disadvantage test. It does not contain provisions which are contrary to the Act.

PN98

I note that the agreement was filed outside the time frame specified in the Act and utilises the discretion provided for in section 111(1)(r) of the Act to extend that time period. I propose to certify the agreement from the date upon which I received the missing page or pages in the document which represent appendix 1 and I expect that I will receive those documents within the next 2 or 3 days, Mr Howard?

PN99

MR HOWARD: That would be correct, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: A fair assessment?

PN101

MR HOWARD: Yes, fair assessment.

PN102

THE SENIOR DEPUTY PRESIDENT: On that basis the parties can expect to receive a certificate shortly after that. That certificate will identify the various clauses about which I've sought clarification but it will not detail the answers given to me by the parties, because those are recorded on the transcript. I trust that the agreement will operate to benefit both the employer and the employees and adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.45am]