AG2003/9331, Transcript of Proceedings [2004] AIRCTrans 17 (8 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

O/N 1213

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9331

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Allied Mech Services Pty Limited and Another
for certification of the Allied Mech Services Pty
Ltd trading as Anaequip Allied Services On Site
Construction SA 2003-2005 Enterprise Agreement

ADELAIDE

10.20 AM, THURSDAY, 11 DECEMBER 2003

PN1

MR K. BLEECHMORE: I appear for Anaequip, from Air-conditioning Mechanical Contractors Association.

PN2

MR N. LEAN: From CPEU Plumbing Division.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lean. Now, Mr Bleechmore, can I take it that you rely on the employer's statutory declaration for the purpose of the endorsement or proposed endorsement of this agreement?

PN4

MR BLEECHMORE: Correct, your Honour, and discussions with the employer.

PN5

THE SENIOR DEPUTY PRESIDENT: I see. On that basis I can indicate to you I will require just a little more information about the steps that were taken to ensure that the employees have or had reasonable access to the agreement in writing at least 14 days before they voted on 10 November.

PN6

MR BLEECHMORE: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: But beyond that I won't require you to address the process whereby the agreement was reached in any further detail unless you wish to do so.

PN8

MR BLEECHMORE: No, I think, we can go with that, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR BLEECHMORE: The process for the employees to be presented with the agreement was two-fold. In the first instance a copy was given to the employer to distribute to the employees well within the 14 days before hand and a copy was also given to the CPEU plumbing division union to ensure that - and they were both given the same copy to ensure that - to make sure that not only did employer distribute it but also the union in discussion with the employees presented that document to them.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Lean, can I take it that you too rely upon your statutory declaration in support of this agreement?

PN12

MR LEAN: Your Honour, we do rely on the statutory declaration. I concur with Mr Bleechmore with the process that was outlined.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis I can simply indicate to the parties that I have a few questions about the agreement. You would be both well aware my questions invite neither party to rewrite the document. Would you prefer, Mr Lean, that I address those questions to Mr Bleechmore, or do you want to be the lucky recipient?

PN14

MR LEAN: I don't care, either way, your Honour, whichever suits you.

PN15

THE SENIOR DEPUTY PRESIDENT: All right. We will see who hops up and answers the questions. The assumption that I've made based on clause 7 is that the rates of pay that I should have regard to are those set out to apply from 30 September 2003. Clause 7 is on page 5.

PN16

MR BLEECHMORE: Yeah. The rates of pay, pardon?

PN17

THE SENIOR DEPUTY PRESIDENT: The rates of pay to apply from 30 September 2003 are those that are agreed to apply. The provisions of clause 11.5 on page 6 refer to the MBA rate. How should I understand that particular provision?

PN18

MR LEAN: The 11.5, as far as we understand it is a site allowance, as it states, at all site employees. It is an MBA rate which is the site allowance rate usually set on builder's sites and an agreement reached quite a while ago with MBA and the unions in the first year, take into consideration that those documents done now the company had been paying under this document for a number of months. From 30 September this year the rate $1.25 and from next year the rates capped at $1.50. That's for all productive hours on site.

PN19

THE SENIOR DEPUTY PRESIDENT: Is that cap irrespective of whatever rate might be agreed or described as the MBA rate?

PN20

MR LEAN: Yes. That's correct. In the last year it's capped and it would be $1.50 even if we're on site and it's a $2 an hour rate on that site. The men will get $1.50 but they get that if they're on a site with no site allowance as well. So equitably it works out that the blokes will come in front with the type of work this employer does.

PN21

THE SENIOR DEPUTY PRESIDENT: So that if I understand that correctly, by the reference to MBA rate you mean the agreement or an agreement reached between the MBA and the Building & Construction Industry unions and that in the period between now and 30 September 2004 that rate may conceivably be changed but would be applied depending on the value of the project such that if it exceeded the amount of $1.25 for a particular project then it would be applied.

PN22

MR LEAN: That's correct.

PN23

THE SENIOR DEPUTY PRESIDENT: If following the 30 September 2004 the rate agreed between the MBA and the Building & Construction Industry unions for a particular project exceeds $1.25 then it will be applied up to a maximum of $1.50.

PN24

MR LEAN: That's correct.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 13 on page 7 relates to a skills development program. Am I to understand that will occur over the life of the agreement?

PN26

MR LEAN: That is correct.

PN27

THE SENIOR DEPUTY PRESIDENT: Clause 21, as it appears on page 9, sorry, no. It is clause 20 as it appears on page 9, refers to the company's quality policy. Is that policy a documented policy? Is it readily available to employees and may it be changed over the life of the agreement?

PN28

MR LEAN: I believe the company has a policy on quality. I'm not sure if they're a quality assured company but there's in-house policy I believe on company on the way they expect worker's to behave. Best practice levels, and so forth. It is our understanding that the company has one.

PN29

THE SENIOR DEPUTY PRESIDENT: May it be changed over the life of the agreement?

PN30

MR LEAN: At this stage our experience with the company has been any changes to any practices with the workers they've always been forthcoming with us to just sit down and discuss it.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN32

MR LEAN: I can surmise it happens, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 24 relates to supplementary labour. Am I to understand that if employees are placed with or loaned to another company then they will be paid by that other company but then they will be paid an amount not less than that set out in this agreement?

PN34

MR LEAN: If an employee is loaned to another company with him still being paid by Anaequip Allied Services but their own company would bill the other company for that.

PN35

THE SENIOR DEPUTY PRESIDENT: I see. Thank you.

PN36

MR LEAN: Therefore there's no change of employment. There's continuity of employment.

PN37

THE SENIOR DEPUTY PRESIDENT: Clause 26 on page 10 relates to security of employment. Am I correct in understanding that is simply a statement of intent rather than any enforceable obligation?

PN38

MR LEAN: It's an intent.

PN39

THE SENIOR DEPUTY PRESIDENT: Clause 29 relates to income protection. Are you able to advise me of the extent of that insurance polity in terms of duration and the amounts to be provided to employees under it?

PN40

MR LEAN: The duration of the policy lasts for the - there should be no cost increases in the life of the EBA. If an employee makes a claim under that policy there's the first 14 days. The employee has to - will not receive any recompense from the insurance for. After the 14 days the time adds up to all in all it's 2 years. An employee can be off for 2 years and receive an income. After the income the employee is off. Obviously, it stops then.

PN41

THE SENIOR DEPUTY PRESIDENT: Is the income provided to the employee an average of the employees ordinary time earnings? Is it the amount set out in the agreement or is it some other figure?

PN42

MR LEAN: It is, as far as we're aware, this one is 100 per cent of the employees wages. It does not cover superannuation, long service leave, or redundancy.

PN43

THE SENIOR DEPUTY PRESIDENT: And presumably doesn't cover overtime?

PN44

MR LEAN: If the employees were to set a substantial amount of overtime in that time, it's a hundred per cent of his wages. Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: I see. So in that regard it would be based on an average?

PN46

MR LEAN: It would be based on an average. Usually it's taken over a previous 6-month period.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. The clause 31 relates to the picnic day. Am I to understand that an employee need not be a member of the union to be paid for that day provided they provide some evidence of attendance at the picnic day.

PN48

MR LEAN: Our only concern is that the employer must see evidence that the employee has attended. Whether he is a union member or not is irrespective.

PN49

THE SENIOR DEPUTY PRESIDENT: That clause also refers to subcontractors. How should I understand that reference?

PN50

MR LEAN: I am led to believe it is a typographical error.

PN51

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN52

MR LEAN: Put on transcript that it is an error. I was quite excited by that, actually.

PN53

THE SENIOR DEPUTY PRESIDENT: The provisions by clause 32, I understand to be such that if employees are working a 36-hour week they would be allowed the additional rostered days off, but on an unpaid basis?

PN54

MR LEAN: Correct.

PN55

THE SENIOR DEPUTY PRESIDENT: Appendix 1 is the grievance or dispute settlement procedure. With particular reference to step 3, Mr Bleechmore, can you confirm to me that the capacity exists for an employee who may not be a member of the CPU, or indeed any union, to be represented by another union or organisation of their choice?

PN56

MR BLEECHMORE: Certainly, your Honour. It is the intent that in fact that they can select who their advocate may be.

PN57

THE SENIOR DEPUTY PRESIDENT: Whilst you are on your feet, Mr Bleechmore, can I understand that you are in agreement with all of Mr Lean's responses?

PN58

MR BLEECHMORE: I am, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: On the basis of the information contained in the statutory declarations, together with the information provided to me this morning, I am satisfied that the agreement was reached through a process consistent with that detailed in the Act. I am also satisfied that the agreement itself meets the requirements of the Act necessary for certification in that it is of a duration envisaged by the Act, contains the necessary dispute resolution provision, is consistent with the no disadvantage test and does not contain provisions which are contrary to the Act.

PN60

I will certify the agreement with effect from today. That certificate will be forwarded out to the parties within the next few days. It will detail the various clauses about which I sought clarification, but it will not detail the answers that I have been given, because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope you don't need to exercise that dispute resolution provision. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.34am]