C2004/2730, Transcript of Proceedings [2004] AIRCTrans 1534 (21 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 10589

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/2730

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

ATLAS CONSTRUCTION SERVICES PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re access to time and wages records

SYDNEY

11.33 AM, TUESDAY, 13 APRIL 2004

PN1

THE COMMISSIONER: Could I have the appearances please?

PN2

MR S. WILCOX: I appear for the CFMEU.

PN3

MR P. REID: I am from Atlas Construction Services, sir.

PN4

THE COMMISSIONER: Thank you. Mr Wilcox?

PN5

MR WILCOX: If the Commission pleases, Commissioner, in September of last year the union held a scaffold industry meeting where all scaffolders in the industry attended and at that meeting all scaffolders voted, or all our members voted, that the union do time and wage book checks on all companies to make sure that all the companies were paying in accordance with the relevant legislation, awards and so forth. Subsequently, three of the companies that were at that meeting have had their books checked and everything is pretty much kosher.

PN6

The company here today has been asked twice to produce time and wage book records. The union does suspect there could be possible breaches and on two occasions we've been refused access to those time and wage book records. So, Commissioner, we would be asking that the Commission rule that the company hand over those time and wage book records for our inspection. That's all I have.

PN7

THE COMMISSIONER: What's been the basis of the request in terms of where you might inspect the books? Have you indicated a mutually convenient agreeable place? Will it be at the union office or what?

PN8

MR WILCOX: At the union office, but on both occasions they were refused. We could have a mutual meeting place, that's not a problem at all. They were flatly refused, Commissioner.

PN9

THE COMMISSIONER: Mr Reid?

PN10

MR REID: Sir, it's true that there was a combined meeting of the union of which in my company I was the only person that was a standing member. In fact this was an EBA drive from the CFMEU and none of my employees belong to the union. Now, I've checked with the MBA and subsequently the task force and I've been advised, sir, that they have no jurisdiction because nobody in my company is a member. Having said that, I was the first one to volunteer to sign the new EBA when it was going to come into force. But with the subsequent actions of the union, we've decided that the union is really not a viable force for us.

PN11

Now, having said that, I've been a union member for 23 or 24 years that I've been in construction and I've always maintained my membership and in fact, as I say, Commissioner, I was the only one in our company that belonged to the union. But under the section, apparently, they're now calling for my books. They have no jurisdiction according to my advice. The other thing, sir, is that I've been in the industry on my own as a company for 18 odd years and in that time most of the people that are now - these seven or eight employees that I do have, have been with me for ten years plus.

PN12

Now, we're aware of, as you probably know, sir, this is a really incestuous industry, so the guys are aware of what their rights are under the Act and I pay above award wages. Because we are a small company, we are sort of family orientated and I believe that if my guys were subpoenaed they would give you the sort of answers that you would require. I declined to give them my books on the basis that I don't believe they have any jurisdiction and I don't think they're relevant to my company.

PN13

They've since started a campaign against this and even though the CSAI have people who are willing to give signed stat decs that words to the effect that "Atlas will be going down" have been said on site. So, Commissioner, I decline on that basis and I think I really have no case to answer. Thank you.

PN14

THE COMMISSIONER: Thank you. What do you say about that, Mr Wilcox?

PN15

MR WILCOX: Commissioner, at the time of the request, Atlas did have members and still does have members as far as our computer system is aware of. It's true that Mr Reid did resign from being a member of the union the day after I handed him the second notice of the intention to - for the book inspection. Although some of his employees owe a bit of money to the union, they have not resigned. So as far as the union is concerned, we do have a right to inspect the time and wage book records.

PN16

I refute the statement that has been made that "Atlas is going down". I don't know where that's come from. What has been said around the traps is that we will ensure that all companies abide by their legal obligations. Now, that's the extent of the comment that I would have made.

PN17

MR REID: Sir, may I have one more word?

PN18

THE COMMISSIONER: Yes.

PN19

MR REID: To say that any of my guys are members is just a gross lie. But even if he's saying that I resigned, I've been the owner and I've been refused right to members meetings. So you can't have it both ways. I did resign recently, but I made it retrospective to the last paid quarter which I paid. But if you're refused any aid as a member, you're refused right to a members meeting. I've been ejected from a members meeting, even although I was a current member. So, Commissioner, you can't really have it both ways, can you?

PN20

THE COMMISSIONER: Well, maybe the union was saying because you were the employer, you couldn't have it both ways either.

PN21

MR REID: Well, yes, but then he's saying that I'm the last active member and under that criteria he's going to demand the books. I don't see how they can have it both ways. Let me tell you this, Commissioner, I would have no hesitation in making my books available to just about any other organisation except the CFMEU. The feeling has got to that low stage that when I resigned after 23 or 24 years of active membership where I was an organiser, I was also an active organiser in the old union that was going, I was an active delegate and safety officer for the CFMEU when they began and I go back 23 odd years and this guy comes for five minutes and already he's making noises.

PN22

But, without getting all emotional about the situation, it's just a matter that I don't see where they have any jurisdiction, Commissioner, so I'm refusing on that basis and it's an out and out lie. I have no active members in the union.

PN23

THE COMMISSIONER: Thank you. Well, I think with your background, you'd know that there's an easy way to go about things and a hard way to go about things and with a bit of commonsense things can usually be worked out the easy way. But I hope that relations haven't deteriorated to the extent that you say they have, because sooner or later people have got to sit around the table and start talking to each other. Legally, yes, technically, yes, you're right, if there are no members employed by the company, the union doesn't have any right to seek to inspect the books. But there seems to be another agenda here somewhere and maybe it's time for a bit of straight talking and see if you can get to the core of the issue rather than skirt around the outside.

PN24

I don't know what I can do. There's no order I can make to assist the union, but as you all know life goes on and it's better if people can get on with each other rather than throw stones from a distance.

PN25

MR REID: Just to get this thing to a head I haven't closed the door entirely, so there isn't sort of a hook here, I take on board what you're saying about some commonsense prevailing and maybe the issue isn't lost altogether. Negotiations can open.

PN26

THE COMMISSIONER: Right, do you want to say anything more, Mr Wilcox?

PN27

MR WILCOX: Commissioner, I disagree with the fact that they've got no members. Although they are unfinancial, some of them, they're still members on our computer system, unless they've all resigned out prior to this morning. But at the time that we sent the time and wage book inspections through, we had members on our books and the only way the union is going to be satisfied that the company is above board and paying everything they are legally obligated to pay, is if we can have a look at their books.

PN28

I can't see how hard it is, when the other three companies who were at that meeting, voted to bring their books in for inspection, have done so, but Atlas is saying he'll show the books to anybody else, but not to the union. The only conversations I've had with Mr Reid is over this issue of the time and wage book records.

PN29

MR REID: Sir, may I just quickly say he's only been here five minutes, recently come on board. Before that I was fine negotiating with Dave Kelly from the CFMEU. I've also had discussions with Mick Lane from the CFMEU and Steve Hing from the CFMEU. So as you are quite honestly pointing out, this isn't rocket science, but having said that, I maintain that I have a right to refuse until such time as I feel the negotiations are at such a stage, not because, as I said, there's nothing to hide. My guys have been around too long and are too long in the tooth in this game to be satisfied with anything less than the right wages and in fact stay with me because I pay above award wages. This I can say on oath which, if I'm ever asked to show to the court, like I have to say to the Commission, so I'm not making that oath lightly.

PN30

The other thing is, Commissioner, whether or not he says that the memberships are still on his books, they are not active and have not been for some time. In fact, there's two or three of the guys that owe thousand of dollars. So does that look like they want to be active members?

PN31

THE COMMISSIONER: Well, there might be a difference between being active members and unfinancial members.

PN32

MR REID: Well, no, Commissioner, I was quite happy if need be to get stat decs from all my blokes to say that they will not join the union, have no intention of joining the union and so why should the union now try and provide a service that they're not wanted for? But, as I said, I take on board, Commissioner, that this may well be just a matter of somebody talking to somebody to get a result.

PN33

THE COMMISSIONER: I'm going to do that in a moment. I'm going to adjourn and talk to you in private. But somebody who is a member on the books, unfinancial, is still, by law, a member, albeit they owe money. They cease to be a member at the time that they resign being financial and having got a clearance to resign. So although you may say you're technically and legally right, the union also could claim that it has members, albeit that they're unfinancial and probably owe a fair bit of money by now. But without worrying about that too much, I'm going to adjourn into private conference.

NO FURTHER PROCEEDINGS RECORDED [11.47am]