AG2004/1198, Transcript of Proceedings [2004] AIRCTrans 1664 (3 May 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 461
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG 2004/1198

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services
Union of Australia-Electrical Division Western
Australian Divisional Branch re interpretation of
certified agreement

PERTH

2.05 PM, THURSDAY 22 APRIL 2004

Continued from 15.4.04

PN9

MR C. YOUNG: I appear on behalf of the applicant union. Your Honour, I should just indicate, if I may, for future reference that the CEPU has a number of Divisions, one of which is the Plumbing Division. The notice of hearing was directed at the Electrical Division and has caused some confusion to the relevant officials from the Electrical Division. And it also led to some delays in the Plumbing Division actually obtaining the notice of hearing.

PN10

THE DEPUTY PRESIDENT: Yes. Well, it would have been the way it was entered, I presume. But thank you, Mr Young. Sorry if that has caused any difficulty. Yes?

PN11

MR K. RICHARDSON: I appear on behalf of the respondent employer.

PN12

THE DEPUTY PRESIDENT: Yes, Mr Young?

PN13

MR YOUNG: Thank you, sir. Sir, how do you wish me to proceed? I can commence with an opening address, but I think that - or perhaps a very, very brief opening address. It would be my intention to perhaps do that and then call my only witness. I would anticipate, certainly from where I am standing, that the applicant's case should be concluded with an hour. I am not certain, however, the sort of time frames that the respondent has in its mind. Indeed - - -

PN14

THE DEPUTY PRESIDENT: Well, you proceed on that basis, Mr Young, and see where we get to.

PN15

MR YOUNG: Yes. Would civil procedure apply in terms of calling evidence? I think in this case it is perhaps appropriate if that were the case. There may be some dispute over evidence. I suspect not but there may well be. And I think it would perhaps be more appropriate if civil procedure were to apply.

PN16

THE DEPUTY PRESIDENT: Well, you just proceed.

PN17

MR YOUNG: Yes. Sir, this is an application pursuant to section 170MD(6) of the Act with regards to an application to clarify an uncertainty or an ambiguity that is in the certified agreement. Sir, I did forward to the Commission a copy of the certified agreement that had been amended in terms of the formatting had been changed. I realised, upon closer inspection of that document, that the wages schedules had been thrown completely out of kilter, as a consequence of the re-formatting. I have been able to obtain the original document that passed under the signature of Commissioner O'Connor. If I can perhaps hand that up, sir, as the document. So, there is a common document that all parties are relating to.

PN18

THE DEPUTY PRESIDENT: Thanks.

PN19

MR YOUNG: Sir, this is an application that, in effect, has two parts and this is called contained in the applicant's application. The first part, your Honour, relates to appendix 3 and specifically the words contained in the third line of the first paragraph. And that appendix 3, your Honour, is contained on the second last page of the document that has just been handed up. And the words are:

PN20

Where the main contractor or builder has a like agreement.

PN21

That is the nub of the problem there. And, your Honour, the applicant has already forwarded, but again, just for the sake of completeness, I will hand up the proposed changes that the applicant is seeking to that, namely, the deletion of those words:

PN22

... where the main contractor or builder has a like agreement ...

PN23

That was forwarded electronically to the Commission, your Honour.

PN24

THE DEPUTY PRESIDENT: Yes, thank you.

PN25

MR YOUNG: And, sir, likewise, contained in the material that was forwarded is an amendment to appendix 4. And that is indicated to be the addition of the words at the end of paragraph 5. The words:

PN26

employee agree to pooling, shall only be used for topping up site allowances and shall not be used for topping up wages or allowances on non-site allowance jobs. It is only for the pooling and distribution of site allowances.

PN27

Sir, a brief overview of the facts that have given rise to the current application that is before the Commission. Sandwell Pty Ltd is engaged in the construction industry. It covers both the major and the minor construction industry areas within Western Australia. In 2003 a certified agreement was entered into between the CEPU Plumbing Division and Sandwells. That document is currently before the Commission. Sir, that document has not been tendered formally as an exhibit. Perhaps I think it would be appropriate for it to be given an exhibit number.

PN28

THE DEPUTY PRESIDENT: Which document?

PN29

MR YOUNG: The certified agreement, sir. The one that was handed up.

PN30

THE DEPUTY PRESIDENT: Well, that is an official document. It is AG 8208/01, PR 926493. It doesn't need to have an exhibit number.

PN31

MR YOUNG: Thank you, sir. Sir, the certified agreement obviously stands on its face and is applicable within its terms, including the area and scope. What has occurred, in a nutshell, is that there are some sites around Perth where a site allowance is being paid in addition to the PTIP allowance that is payable within the terms of the CA. PTIP is $1.20. And there are two sites in particular: The Convention Centre and the, colloquially referred to as, the Woolies or the Woolworths site out at the Airport, where a site allowance in addition to - sorry, there is a site allowance that is greater than the PTIP of $1.20. I understand that the Convention Centre site allowance is about $5.45 and the Woolies site allowance is more than the $1.20 but I don't have the figure at hand. The employer - - -

PN32

THE DEPUTY PRESIDENT: Just before you do, Mr Young, coming back to the agreement and the official copy of it. The agreement, what you have submitted here that you wanted marked, is the certificate. And then there is the agreement attached to that certificate. Is that the official agreement or is that something you photocopied from somewhere else or - - -

PN33

MR YOUNG: It is a direct photocopy on what I am advised, sir, is the certified agreement.

PN34

THE DEPUTY PRESIDENT: Yes, I see.

PN35

MR YOUNG: Is the official agreement, if I can call it that.

PN36

THE DEPUTY PRESIDENT: Yes. Okay, thank you. But is it the agreement that was attached to the certificate? Do you have - - -

PN37

MR YOUNG: I am advised, yes, sir.

PN38

THE DEPUTY PRESIDENT: Okay. Thank you. Sorry.

PN39

MR YOUNG: Yes. So, sir, there are at least two major constructions jobs, namely, the Convention Centre and the Woolworths job. There are then a number of other minor constructions jobs around the Perth metropolitan area. There is also another major construction job: The UWA job. The principal builder or contractor there is BGC. Now, sir, what has given rise and effect to the application currently before you is that the site allowance in excess of $1.20 from the Convention Centre and the Woolworths job are placed into a common pool. Moneys from this common pool are then drawn upon by the employer to top up the award wages of other employees within the company and also to pay various allowances and other entitlements within the award. It is a case, we say, of the employer - - -

PN40

MR RICHARDSON: Deputy President, I have to object. My friend keeps referring to the award. If it is an assertion by the union that the employer under these circumstances is breaching the award, then we object most strenuously. We believe we are here dealing with an application for a registered enterprise or registered certified agreement. And I think it is appropriate that we raise that objection immediately so that that point can be clarified. If the Commission pleases.

PN41

THE DEPUTY PRESIDENT: Yes. So, you challenge that there is any offence?

PN42

MR RICHARDSON: Clearly so, Deputy President. Clearly so. That is not been raised with us in any way, shape or form. It is the first time we have heard of it and under the circumstances we object most strenuously.

PN43

THE DEPUTY PRESIDENT: Yes. That is noted. Thank you. Yes, Mr Young, the issue here, the application, is that there is an ambiguity or uncertainty within the agreement. Can you direct your attention to where that ambiguity arises.

PN44

MR YOUNG: Yes, certainly, sir. I was wondering if perhaps you wanted to understand the factual context within which this took place and then I intended addressing - - -

PN45

THE DEPUTY PRESIDENT: Well, the first thing for me to understand is what the agreement says. So, perhaps if you direct it towards that and where you say the ambiguity arises and how that arises.

PN46

MR YOUNG: Yes. Sir, if you look at appendix 3, and particularly that is, again, at the second last page of the documents that has been provided. The words:

PN47

... where the main builder or contractor has a like agreement

PN48

is used. And nowhere in the document is the word "like agreement" defined. And we say - - -

PN49

THE DEPUTY PRESIDENT: Well, can you take me through this very slowly, Mr Young. I am not familiar with this agreement. Undoubtedly you are much more familiar with it than I am. So, perhaps if I give you some indication of the way I tend to look at these things and maybe that might be of assistance to you. If we go to clause 2. That is the first clause that we really need to go to.

PN50

MR YOUNG: Your Honour, I was just about to take you there and was about - - -

PN51

THE DEPUTY PRESIDENT: Well, go there first and then any appendix that arises out of that might arise.

PN52

MR YOUNG: Yes. Well, sir, clause 2 indicates the parties and the persons bound by the agreement. Now, we say on the reading of that, when looked together, indicates all employees, specifically clause 2.2, are bound by the agreement.

PN53

THE DEPUTY PRESIDENT: Yes.

PN54

MR YOUNG: Now, appendix 3 then - - -

PN55

THE DEPUTY PRESIDENT: Is there any reference in the body of the agreement to appendix 3?

PN56

MR YOUNG: No.

PN57

THE DEPUTY PRESIDENT: So, it is simply an appendix? I see. Yes?

PN58

MR YOUNG: So, it is simply an appendix. Now, the appendix is titled obviously on the scope of it: Scope.

PN59

THE DEPUTY PRESIDENT: Yes.

PN60

MR YOUNG: And it appears, sir, to be some attempt, in appendix 3, to clarify or perhaps restrict the area and scope clause or the parties bound clause in clause 2. It indicates that this agreement applies to the commercial industrial sector of the building industry. The applicant has no challenge with that. And, likewise, the applicant has no challenge with it applying to the housing, civil construction, mining construction, other than building or to minor construction work, the service maintenance and replacement sectors. Likewise, the applicant does not take any offence or objection to Knowles Plumbing and Air Conditioning being excluded from the operation of this agreement.

PN61

THE DEPUTY PRESIDENT: So, let me understand what you are saying. And I read that:

PN62

The agreement covers the company's employees who are capable of being a party to the agreement -

PN63

MR YOUNG: That seems to be drawing in - - -

PN64

THE DEPUTY PRESIDENT:

PN65

- in Western Australia, engaged only in the commercial industrial sector of the building industry where the main contractor builder ...(reads)... to minor constructions work, the service maintenance or replacement sector.

PN66

So, what are you saying that means?

PN67

MR YOUNG: Well, sir, what we are saying is that summing it up, this agreement that applies to the commercial industrial building sector.

PN68

THE DEPUTY PRESIDENT: Yes.

PN69

MR YOUNG: And not to those other - collectively refer to them as minor construction.

PN70

THE DEPUTY PRESIDENT: Yes.

PN71

MR YOUNG: Sir, to use the common parlance, this agreement is directed at the big jobs around town. It is not directed at those smaller areas.

PN72

THE DEPUTY PRESIDENT:

PN73

... where the main contractor or builder has a like agreement ...

PN74

MR YOUNG: Well, we say, sir, that is where there is a dispute or an uncertainty.

PN75

THE DEPUTY PRESIDENT: I see. So, it is those words that you - - -

PN76

MR YOUNG: Yes.

PN77

THE DEPUTY PRESIDENT: Where there is a difference as to what that means?

PN78

MR YOUNG: Yes.

PN79

THE DEPUTY PRESIDENT: I see. Yes.

PN80

MR YOUNG: And specifically, what do the words "has a like agreement" mean.

PN81

THE DEPUTY PRESIDENT: Yes. Yes, thank you.

PN82

MR YOUNG: Sir, perhaps if I can just jump ahead slightly. I understand that the respondent's position is that the words "has a like agreement" means has a certified agreement. The applicant's position is that the words "has a like agreement" means has a site allowance agreement. In a nutshell, sir, I think that is the difference between the parties.

PN83

THE DEPUTY PRESIDENT: I see.

PN84

MR YOUNG: Your Honour, are you aware of the process where site allowances - or how they traditionally are - - -

PN85

THE DEPUTY PRESIDENT: It is your case, Mr Young.

PN86

MR YOUNG: Thank you.

PN87

THE DEPUTY PRESIDENT: It is up to you to put up whatever you want.

PN88

MR YOUNG: Sir, if I can return now to the factual matrix within which this particular form of words is being conducted in, because it does indicate some inconsistencies and uncertainties. There is the award rates. Sorry, there is the CA rates. Coupled with the PTIP that is payable under the certified agreement. And then there are, as part of the agreement, site allowances that are also payable on at least two jobs. And that currently is the Convention Centre and the Woolies job. There is then a series and a number of minor construction jobs that are not bound by the agreement. Those are the exceptions contained within appendix 3. Those so-called minor construction areas.

PN89

Those areas include sites such as the QBI Centre, Civic Centre. I understand that there was also a fitness outlet. There are a number of sites that the applicant union says quite clearly fall outside the parameters of this particular CA and the rates contained in here do not apply. Because, your Honour, there are two legs to this application. The first one is the area and scope. And the second leg is the so-called topping up issue. And that is an amendment, sir, to appendix 4. Yes, appendix 4. Because, your Honour, what has happened, we say, is that on the two sites where site allowance is payable, namely, the Convention Centre and the Woolies job - - -

PN90

MR RICHARDSON: Your Honour, I have to again raise to my feet. And I keep hearing my friend talk about the site allowances being payable on these sites. Where is the evidence to support that?

PN91

THE DEPUTY PRESIDENT: Well, I presume it is going to be established. And what Mr Young was doing, I assume, Mr Richardson, was outlining what his assertions are in order that you are aware of those assertions.

PN92

MR RICHARDSON: And?

PN93

THE DEPUTY PRESIDENT: So, when he does present any evidence, you are in a position to be able to cross-examine on that evidence with the underlying assertions there.

PN94

MR RICHARDSON: I understand that, Deputy President. And I mean no disrespect to either the Commission or to my friend, but I am placing it on the record clearly that if my friend wishes to make these assertions, then we challenge and say they ought bring evidence to substantiate those claims.

PN95

THE DEPUTY PRESIDENT: Well, there is no disrespect to me, Mr Richardson. If you challenge statements being made by Mr Young, you should challenge them.

PN96

MR RICHARDSON: And we will.

PN97

THE DEPUTY PRESIDENT: If you sit there mute, it might be that they are taken as accepted. So, it doesn't offend me.

PN98

MR RICHARDSON: That is understood, Deputy President.

PN99

THE DEPUTY PRESIDENT: Thank you.

PN100

MR YOUNG: Thank you, your Honour. If I can go back. The two sites, the Convention Centre and the Woolies job, the CA is being applied. Which means that the base rates are being paid, the PTIP of $1.20 per hour is being paid, as well as the applicable site allowances on those two jobs. The difference between the greater site allowance and the PTIP which, on the Convention Centre, I understand is $4.25 an hour, is being placed into a common pool.

PN101

THE DEPUTY PRESIDENT: What has this got to do with it, Mr Young?

PN102

MR YOUNG: Well, your Honour - - -

PN103

THE DEPUTY PRESIDENT: I do say I do have some difficulty because this is an application that there is an ambiguity or uncertainty. What you need to address, which I tried to bring your attention to earlier, was what is the ambiguity and uncertainty and what gives rise to that ambiguity and uncertainty? So, you need to address the agreement itself.

PN104

MR YOUNG: Yes, your Honour. But if I may continue, I think you need to appreciate - and there are two issues there, of course. There is the like agreement argument and then there is the use of the site allowance that is being used, we say, in a manner that does not appear to be consistent with appendix 4.

PN105

THE DEPUTY PRESIDENT: But that is an enforcement issue, isn't it?

PN106

MR YOUNG: Well, sir, the two issues are intimately linked because - - -

PN107

THE DEPUTY PRESIDENT: But, see, what you are saying is the agreement applies and what I think you are leading to is this company is not complying with the agreement. If that is your issue, why is it an issue for me?

PN108

MR YOUNG: Well, sir, because the issue of what do the words "like agreement" mean.

PN109

THE DEPUTY PRESIDENT: Yes.

PN110

MR YOUNG: Does it mean an EBA?

PN111

THE DEPUTY PRESIDENT: Yes.

PN112

MR YOUNG: Or does it mean a site allowance agreement?

PN113

THE DEPUTY PRESIDENT: Yes.

PN114

MR YOUNG: That is the clarification that is sought.

PN115

THE DEPUTY PRESIDENT: And why is that an issue for me?

PN116

MR YOUNG: Because, sir, it is unclear as to what the words mean.

PN117

THE DEPUTY PRESIDENT: Yes.

PN118

MR YOUNG: Particularly when read within the context of the rest of the document and also the way that the document itself is being applied.

PN119

THE DEPUTY PRESIDENT: But that is a question of whether the agreement applies. If it is a question of whether the agreement applies, why is that a matter for this Commission?

PN120

MR YOUNG: Sir, it is a question of not does the agreement apply. It is a question of what the agreement applying to.

PN121

THE DEPUTY PRESIDENT: Yes.

PN122

MR YOUNG: So, it is not does it apply. It is a question of what is it applying to. And the problem is, the words "there is a like agreement" contained in the appendix.

PN123

THE DEPUTY PRESIDENT: That determines whether the agreement applies, does it not?

PN124

MR YOUNG: No, sir. Well, - - -

PN125

THE DEPUTY PRESIDENT: Well, that is what you said earlier, if I understood you. What it says is:

PN126

The agreement covers employees -

PN127

and I will leave out -

PN128

who are capable of being a party to the agreement in Western Australia.

PN129

So:

PN130

The agreement covers the company's employees engaged only in the commercial industrial sector of the building industry where the main contractor or builder has a like agreement.

PN131

MR YOUNG: Yes, sir.

PN132

THE DEPUTY PRESIDENT: That is the question. So, it is a question of - - -

PN133

MR YOUNG: What is a like agreement?

PN134

THE DEPUTY PRESIDENT: - - - does the agreement apply?

PN135

MR YOUNG: No. It is a question of what do the words "like agreement" mean.

PN136

THE DEPUTY PRESIDENT: Yes. And - - -

PN137

MR YOUNG: Is it an EBA or a certified agreement which is, on discussions that Mr Mitchell has had with the respondent, the respondent's position? Or the applicant's position is, no, that relates to a site allowance issue.

PN138

THE DEPUTY PRESIDENT: Right. Is it an EBA? So, it is a question of is it an EBA which comes within the terminology of a like agreement?

PN139

MR YOUNG: Yes. Or - - -

PN140

THE DEPUTY PRESIDENT: If it is or if it is not an EBA, that determines whether the agreement applies?

PN141

MR YOUNG: Well - - -

PN142

THE DEPUTY PRESIDENT: On your EBA example?

PN143

MR YOUNG: Yes, yes.

PN144

THE DEPUTY PRESIDENT: So, that is a question of whether the agreement applies?

PN145

MR YOUNG: Yes, yes.

PN146

THE DEPUTY PRESIDENT: Okay.

PN147

MR YOUNG: But the words "like agreement" we say are capable of two meanings, namely, is it a CA or an EBA, to use the common parlance, or is it a site allowance agreement?

PN148

THE DEPUTY PRESIDENT: All right. So, the CA and the EBA.

PN149

MR YOUNG: Yes.

PN150

THE DEPUTY PRESIDENT: Depending on whether it means CA or EBA, then that determines whether it is a like agreement. That determines whether the agreement applies?

PN151

MR YOUNG: Yes.

PN152

THE DEPUTY PRESIDENT: Okay. If it is a site allowance, a like agreement may mean site allowance or it may not mean site allowance. If it does mean site allowance or it does not mean site allowance, that determines whether the agreement applies, does it not?

PN153

MR YOUNG: Yes, yes.

PN154

THE DEPUTY PRESIDENT: So, I come back to my question: Is this not a question of whether the agreement applies or not? If it is a question of whether the agreement applies, why is it a matter for me? That is what I will need you to address, Mr Young. Do you need an adjournment, Mr Young?

PN155

MR YOUNG: Sir, I think I do need to speak with Mr Mitchell. If I could have - quarter to, I think?

PN156

THE DEPUTY PRESIDENT: Yes, well perhaps prior to that, if what you are saying to me is: Well, I need to determine whether the agreement applies as a step in the process towards other actions that the Commission might have the capacity to deal with. That is one issue. If it is however, simply a question of whether the agreement applies or not, that is another thing all together. So if you can address those issues in that sort of manner, it might of assistance. I will adjourn for 5 minutes.

SHORT ADJOURNMENT [2.32pm]

RESUMED [3.04pm]

PN157

THE DEPUTY PRESIDENT: Yes, Mr Young?

PN158

MR YOUNG: Yes, thank you, sir. Sir, thank you for giving me the opportunity to consult with Mr Mitchell. Sir, the applicant is well aware that the Commission cannot enforce an agreement. Indeed the Industrial Magistrate is the appropriate forum within which enforcement takes place. However, your Honour, the applicant still says that the words contained in appendix 3, namely the words "has a like agreement", is uncertain or ambiguous in that in terms of the discussion that we had earlier, your Honour, we say that it is capable potentially - or capable of two interpretations. And it is not clear what the words "like agreement" means.

PN159

That is, does it mean a certified agreement or an EBA, or does it mean a site allowance. The consequences that may then flow from such a finding by the Commission may or may not then be taken elsewhere. But we are not as such, your Honour, seeking an enforcement per se of this document.

PN160

THE DEPUTY PRESIDENT: So let me perhaps paraphrase that so that I can understand what you are saying, Mr Young. What you appear to be saying is that the words "has a like agreement" creates an ambiguity or is ambiguous and uncertain?

PN161

MR YOUNG: Yes.

PN162

THE DEPUTY PRESIDENT: The result of that ambiguity and uncertainty is an uncertainty as to whether the agreement applies. And because of that uncertainty the agreement should be varied to remove it even though it relates to the application of the agreement. The consequence of the ambiguity is the application of the agreement. Is that - - -

PN163

MR YOUNG: The consequence of that variation, your Honour, does relate to the - - -

PN164

THE DEPUTY PRESIDENT: To whether the agreement applies or not?

PN165

MR YOUNG: Yes.

PN166

THE DEPUTY PRESIDENT: The consequence of the ambiguity you are asserting is whether the agreement applies or not?

PN167

MR YOUNG: Yes.

PN168

THE DEPUTY PRESIDENT: Therefore it falls within 170MD, is that what you are saying?

PN169

MR YOUNG: Yes.

PN170

THE DEPUTY PRESIDENT: Yes, I understand. Thank you.

PN171

MR YOUNG: Thank you, sir. Sir, I've already referred you to clause 2 of the agreement: Parties and Person Bound. Indeed, the Commission has already referred to that. There is then clearly a relationship between clause 2 and appendix 3. There certainly is a question of the status of an appendix that seeks to abbreviate or abridge a clearly stated clause within the agreement. But likewise, sir, there is contained throughout the document but perhaps most significantly in appendix 4. Appendix 4 was and, sir, there is an application to amend appendix 4 and that is contained in the summary of words that has been applied.

PN172

Sir, that was where the oral assertions from the Bar Table were being put. Certainly it is my intention so that the other side doesn't jump up and object strenuously to no evidence being led, that Mr Mike Mitchell would be giving evidence with regards to the payments of the PTIP and the site allowance. Sir, there is a clear connection between the, if I can use that phrase somewhat cautiously, the application of the certified agreement. Because it applies to who is entitled to access into the pooling amounts for the site allowance. So the two issues are intimately linked.

PN173

Again, your Honour, I was attempting just to explain with regards to how this document is being applied so that what I'm speaking about, particularly with regards to paragraph 5 of appendix 4 which is the payment out of the pool to employees of Sanwell's. Most specifically in that, the words, "In the case of employee agreed pooling", which is occurring in this case, "Such pooled amounts shall be paid to all such employees". Now does the words "such employees" mean, all employees who are employed by the particular company or does it mean, employees who are covered by the certified agreement?

PN174

THE DEPUTY PRESIDENT: Well, the agreement can only apply to the people it binds, surely? It can't apply to others, can it?

PN175

MR YOUNG: Well, sir, the words there, "Such employees who were employed by the particular company", contained in the second last line in paragraph 5 of appendix 4.

PN176

THE DEPUTY PRESIDENT: Yes.

PN177

MR YOUNG: So, sir, the question of the area and scope, given that there is that issue of like agreement and what does that mean? And then tying it in, your Honour, with regards to appendix 4. And, your Honour, if I can just go back to where I was addressing the Commission earlier. The site allowances that are payable on the Convention site and the Woollies job is then placed into a common pool that is then distributed to all employees of Sanwell, irrespective.

PN178

THE DEPUTY PRESIDENT: So what you are saying is - what sites did you just refer to? The Woollies job and - - -

PN179

MR YOUNG: The Woollies job. It is at the airport, I understand. It's the Woolworths Distribution Centre.

PN180

THE DEPUTY PRESIDENT: And what is the other one you referred to?

PN181

MR YOUNG: The Convention Centre, your Honour. Just on the foreshore.

PN182

THE DEPUTY PRESIDENT: So what you are saying is that the main contractor or builder at those sites has a like agreement?

PN183

MR YOUNG: Well, that is obviously what the respondent is saying. We are not necessarily conceding that, your Honour. There is a site allowance agreement at those two sites, that is the applicant's position. We say the words "like agreement" means site allowance agreement, not - - -

PN184

THE DEPUTY PRESIDENT: Yes, well so what you are saying is, there is a site allowance generally applicable at those two sites?

PN185

MR YOUNG: Yes.

PN186

THE DEPUTY PRESIDENT: And what you are saying is that those site allowances by virtue of them being generally applicable are - I will take that back, I will just rephrase that. What you are saying is that because there is a site allowance, it applies across the site, that site allowance is a like agreement to this agreement?

PN187

MR YOUNG: Yes.

PN188

THE DEPUTY PRESIDENT: Yes.

PN189

MR YOUNG: Indeed, your Honour, at clause 11.2 site productivity allowance is mentioned and indeed is then tied into appendix 1, which is the schedule of payments over the various time frames.

PN190

THE DEPUTY PRESIDENT: Yes, thank you.

PN191

MR YOUNG: Sir, just to finalise. That common pool, the employer we claim, has accessed the moneys that he has - moneys are paid into the common pool that are the difference between the PTIP and the site allowance payable on those two sites, into the pool. That pool money is then distributed to all employees of Sanwell and Mr Mitchell will give evidence as to how that money is then distributed to the various employees. So, sir, given that, I would like to call Mr Mike Mitchell to the stand.

PN192

THE DEPUTY PRESIDENT: Perhaps if we do, Mr Richardson, are you in a position to put a brief outline of what your position is?

PN193

MR RICHARDSON: Yes, we are, Deputy President. The position of Sanwell Proprietary Limited in these proceedings is that it does not agree with the proposition put by the applicant union that there is any ambiguity within the wording of the enterprise bargaining agreement, which is before - the subject of the proceedings before the Commission. The company says and my instructions are that the issue before it is uncertain because the information, and evidence will be given to this effect, by Mr McMurray from the company, who is one of the business principals, that if one looks at the terms of the agreement itself, there is provision for what is called a consultative committee.

PN194

The employer's position is there was a meeting of 27 February of this year between senior management, the plumbing employees of Sanwell, which I understand are approximately 40 in number and the consultative committee itself, where this issue was in fact, addressed by the employees. My instructions from Mr McMurray are that following those discussions the outcome was that the employees advised Mr McMurray that the employees of Sanwell were happy with the arrangements in connection with the pooling of site allowances and I will use that term because that is generally being used and would instruct the union not to proceed with this matter. So from the employer's - - -

PN195

THE DEPUTY PRESIDENT: Well, what has that got to do with it?

PN196

MR RICHARDSON: Well, the reason I raise it, Deputy President, is on the instructions of the employer, the employees which the union are seeking to represent in these proceedings appear not to have a problem. So if there is ambiguity - - -

PN197

THE DEPUTY PRESIDENT: So what has that got to do with it? The CEPU is a party to the agreement. It says there is an ambiguity and it wants to address it and rectify it.

PN198

MR RICHARDSON: The reason we raise it, Deputy President, is that again from the employer's perspective the employees appear not to have a problem and it is being debated, as I say.

PN199

THE DEPUTY PRESIDENT: I can't see the relevance, I've got to say, Mr Richardson?

PN200

MR RICHARDSON: Well, as I say, that would be something which we will raise in evidence, Deputy President, in connection with the - - -

PN201

THE DEPUTY PRESIDENT: I fail to see the relevance. If you want to pursue it through evidence I will probably still fail to see the relevance unless you can identify what relevance there is.

PN202

MR RICHARDSON: That is understood, Deputy President, but that is part of the position that we would advance and articulate to the Commission..

PN203

THE DEPUTY PRESIDENT: Yes, well perhaps if I can just expand on that so it might help expedite these proceedings. If an agreement says that an employee is entitled to $1000 a week, an employee says, well okay, I'll accept $800 a week. The employee then says to the union, I don't want you to do anything about it. It is still a question of whether the employee is entitled to $1000 a week and it is a right of the union to pursue the right of and obligation to pay $1000 a week. So if you are going to go along that line of what the employees are instructing or not instructing the union to do or what they are happy with or not happy with, you will need to be fairly convincing as to what relevance it is.

PN204

MR RICHARDSON: I intend to articulate and develop that in my submissions, Deputy President. The issue you've raised is, if I could use - could be drawn an analogy to contracting out. That is not the position that the employer says is happening here. In fact, if one looks at the terms and the totality of the enterprise agreement and Mr Young has made reference to clause 11.2. Again if one looks at the agreement itself, it talks about scope, it talks about the application - I withdraw that. It makes actually no provision within the main body of the document, concerning application.

PN205

If one looks at the terms of the agreement, clause 2: Parties and Person Bound, clause 3: Intention of Parties, 4: Certification and Date of Operation of the Agreement. Nowhere at the beginning of the enterprise agreement itself, and it is a point that the Deputy President has picked up, nowhere in the beginning of the agreement does it refer to the application of the certified agreement. The only reference to application of the agreement itself is, in fact, we would advance the position conditioned by appendix 3.

PN206

Again that has been discussed at length at this juncture where the agreement at appendix 3 covers the company's employees in Western Australia engaged only in the commercial/industrial sector of the building industry where the main contractor or builder has a right of agreement. That clearly is the issue where the union says there is some ambiguity. And we say that is not the case. The reason why we say that, if one clause then refers back to clause 11 subclause 2 of the agreement itself where particular reference is made to where the builder and developer have agreed to a site - and the term "productivity allowance" is actually referred to, an agreement will be made in connection with the payment of such allowances.

PN207

Now it is our submission that if one looks at 11.2 and appendix 3 which is, in a sense it is an application provision which conditionally seeks to limit the application of the terms of the certified agreement to particular projects where the builder has, and I use the term that the applicant union has used, a site agreement. That is very clear. Where the builder has a site agreement in place or more to the point to be more correct, has an enterprise agreement which has contained within the body of such an agreement, a schedule setting out site allowances, it is the employer's contention that those site allowances will be therefore payable on such sites. But it is conditioned upon where, and 11.2 of the certified agreement clearly says, "Where the builder has such an agreement", and that is where appendix 3 also ties in.

PN208

Therefore in the absence of such an agreement, and I use that term "agreement" concerning a site allowance existing or being paid on such a project and that is agreed to by the builder with the developer or with the client, or where the builder has such an agreement in place, a certified agreement or a registered industrial agreement which contains within the body of such an agreement, a site allowance schedule. In the absence of such a site allowance arrangement, then there is no site allowance payable. We do point out to the Commission, if one goes through the document itself, that is the certified agreement - - -

PN209

MR YOUNG: Your Honour, if I may just clarify the applicant's position?

PN210

THE DEPUTY PRESIDENT: Well, I will give you an opportunity. If I can just hear Mr Richardson out, I think he has nearly finished, Mr Young, and you can clarify it then.

PN211

MR RICHARDSON: I'm obliged, Deputy President. The point that the company is making, if one looks at the body of the document itself, there is no site allowance formula, site allowance schedule, set out which says: Certain projects of a dollar value, for example, will attract a site allowance of a particular dollar value. No such schedule or appendix is attached within the document and the employer will give evidence to that effect if required. Now there it is our submission, if one again refers to appendix 3 of the certified agreement and clause 11.2, it builds upon our contention as we say that we are reliant upon, that is, the company is reliant upon the builder having an arrangement in place for a particular project where that builder may be paying a site allowance or as the term is used in 11.2, a productivity allowance. There is no obligation within the agreement itself that a site allowance be paid by Sanwell Proprietary Limited to its employees on all sites. In the absence of that, we say there is no ambiguity when one looks at the wording of the agreement itself specifically appendix 3 and clause 11.2.

PN212

THE DEPUTY PRESIDENT: So what you are saying is, appendix 3 determines where the agreement applies?

PN213

MR RICHARDSON: That is correct, Deputy President.

PN214

THE DEPUTY PRESIDENT: That a like agreement is an agreement of a similar kind to this certified agreement. Yes?

PN215

MR RICHARDSON: They are my instructions, Deputy President.

PN216

THE DEPUTY PRESIDENT: If those two conditions are met and in addition there is a site allowance that has been negotiated with a builder/developer, whether that is in that like agreement or not, it applies but only subject to there being an agreement of a similar nature to this certified agreement. Is that your argument?

PN217

MR RICHARDSON: That is correct, Deputy President.

PN218

THE DEPUTY PRESIDENT: I see. Yes, thank you. Mr Young, you wanted to clarify something?

PN219

MR YOUNG: Yes, your Honour. I think you've probably clarified it with Mr Richardson, but just so the position from the applicant is crystal clear. If there is no site allowance payable on a particular site, the applicant is not saying that somehow magically a site allowance is being sought in some form of clarification. There may well be sites where there is no site allowance.

PN220

THE DEPUTY PRESIDENT: Yes.

PN221

MR YOUNG: And again just to clarify, the applicant does not say a site allowance is being sought or indeed is payable.

PN222

THE DEPUTY PRESIDENT: Yes, but your contention is that "like agreement" has a broader meaning than what Mr Richardson is contending?

PN223

MR YOUNG: Yes.

PN224

THE DEPUTY PRESIDENT: You are saying a like agreement is or can be a site allowance?

PN225

MR YOUNG: Yes.

PN226

THE DEPUTY PRESIDENT: Mr Young, I'm going to have to adjourn at 4 o'clock. Now that leaves us with - it being fairly obvious that we won't complete this matter this afternoon. What I would intend is to re-list it fairly shortly. By "shortly" I mean within a week or so, probably within a week. I'm in your hands in a way. If you want to utilise that half hour by presenting evidence or you would rather at that later listing time, it is up to you?

PN227

MR YOUNG: I think, your Honour, it would be safer and fairer for the applicant to adjourn from now and see the matter re-listed at relatively short notice if that is possible.

PN228

THE DEPUTY PRESIDENT: Yes. I will do that then. There are two things, I think, Mr Young and Mr Richardson, that I would request that you confine your submissions and evidence to. The first is the what was, I guess, the facts and circumstances surrounding the making of the agreement in the context of whether the agreement was to apply to particular sites or not and the circumstances that it would. Secondly, probably primarily - just a moment. Secondly, I would ask you to specifically identify the ambiguity or uncertainty. And whilst you have done that in part this afternoon, I will need something from the factual background surrounding the agreement making that will support that identification. Thirdly, Mr Young, I will need you to address, if there is an ambiguity or uncertainty found, why I should exercise discretion to remove it and Mr Richardson, why I should not. The onus, I think, in that third step falls primarily on you, Mr Richardson. This matter is adjourned.

ADJOURNED INDEFINITELY [3.31pm]