AG2003/9330, Transcript of Proceedings [2004] AIRCTrans 18 (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 1212

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9330

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by SA Structural Pty Limited and Another for
certification of the SA Structural Pty
Limited/CFMEU Collective Agreement 2003

ADELAIDE

11.05 AM, THURSDAY, 11 DECEMBER 2003

PN1

MR HARRIS: I appear on behalf of the CFMEU. With me is MR D. ROBERTS from the CFMEU and MR MANGOS from SA Structural.

PN2

THE SENIOR DEPUTY PRESIDENT: Mr Harris, can I take it that given your appearance entered on behalf of the CFMEU and the employer that both the CFMEU and the employer seek to rely upon the statutory declarations provided to me as the basis upon which this application is made?

PN3

MR HARRIS: That is correct.

PN4

THE SENIOR DEPUTY PRESIDENT: The only questions that I have relative to those statutory declarations relate, first of all, to the extent that the application is out of time. It is some 16 days late, and accordingly I will need some information about both the reason for the delay and the extent to which there may have been any change in the constitution of the workforce over that period. Can you help me in that regard?

PN5

MR HARRIS: Hopefully I have learned from others on how to explain that. Yes, Commissioner, it is out of date. I was the one that attended the place, got the signatures, and when they were returned to the office, I think unfortunately they were put into Mr Harrison's file and we have to come forward as we are. I've asked, and the position of the employees and all that is still the same, so there is no actual changes at the workplace from the time of the meeting until today.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Mangos, can you confirm that to me?

PN7

MR MANGOS: Yes, I can confirm that. There are no changes that have been made.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Harris, the other question I have goes to the provision of some more information to me about the extent to which the employees had or have reasonable access to the agreement in writing for that minimum of 14 days prior to their vote on it on 21 October.

PN9

MR HARRIS: In actual fact, it was longer than that, that they did have. They would have had approximately 3-1/2 weeks of having the document, looking at it themselves before Darren returned it.

PN10

THE SENIOR DEPUTY PRESIDENT: So the individual employees had a copy of the document?

PN11

MR HARRIS: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis, Mr Harris, unless you wish to do so, I don't require any further information about the process whereby the agreement was reached.

PN13

MR HARRIS: Commissioner, I'm not going to give more than is necessary, thank you.

PN14

THE SENIOR DEPUTY PRESIDENT: I do have some questions about the actual agreement. In that regard, I confirm, perhaps more for Mr Mangos' benefit, that my questions do not invite either the union, Mr Mangos or yourself to rewrite the document that the employees voted to adopt. They do, however, go to issues that I will take into account in the decision to certify the agreement and they also go to my desire to clarify the intention of the parties with regard to a number of agreement provisions.

PN15

I will address my questions to Mr Harris, Mr Mangos. If you disagree with any of the responses that he has given, then please feel free to jump up and tell me that. I should also alert you to the fact that there are a couple of issues that I will need to address specifically to you as the employer. Mr Harris, can I take you to clause 1.6, which is the Scope and Area provision of the agreement?

PN16

MR HARRIS: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Is there any other work, other than that covered by the National Building and Construction Industry Award of 2000 which is intended to be covered by this agreement?

PN18

MR HARRIS: No, that is as it is.

PN19

THE SENIOR DEPUTY PRESIDENT: Clause 1.8 is a clause remarkable for its complexity, and it appears to have some capacity to return whereas I thought it was extinct. If I understand it correctly, the parties intend that the agreement be read in concert with the National Building and Construction Industry Award of 1990, but where that particular award contains monetary amounts that have been updated by the 2000 award, then those monetary amounts should be inserted in place of those that were contained in the 1990 award.

PN20

MR HARRIS: That is correct, Commissioner.

PN21

THE SENIOR DEPUTY PRESIDENT: Where that 1990 award is inconsistent with the agreement, then the agreement prevails?

PN22

MR HARRIS: That is correct.

PN23

THE SENIOR DEPUTY PRESIDENT: Now, clause 2.3 is the Grievance and Dispute Procedure. In this regard, Mr Mangos, can I ask you to look at clause 2.3.5 on page 7, about halfway down the page. In the event that an employee was not a member of the CFMEU or not a member of any union, does that employee have the capacity to be represented by another union or representative of their choice?

PN24

MR MANGOS: No, that is correct.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, can I then take you to 2.3.8 which envisages that a dispute which is not resolved will be referred to the appropriate industrial tribunal. By virtue of the 1990 award reference, I understand that to be the Australian Industrial Relations Commission.

PN26

MR HARRIS: That is correct.

PN27

THE SENIOR DEPUTY PRESIDENT: Do the parties intend that the Commission would then be empowered to try and settle a dispute by way of conciliation with arbitration as a last resort?

PN28

MR HARRIS: That is correct too.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 2.4 relates to demarcation disputes. I understand that the ACTU demarcation disputes procedure is a documented procedure but can I also understand that it is readily available to employees covered by this agreement, and that it is the intention of the parties to adopt that procedure in whatever form it exists in during the life of this agreement?

PN30

MR HARRIS: That is correct.

PN31

THE SENIOR DEPUTY PRESIDENT: Now, clause 2.5.1, on page 8, is another clause which requires that I address questions directly to Mr Mangos. Do you have that clause, Mr Mangos?

PN32

MR MANGOS: Yes, I have it.

PN33

THE SENIOR DEPUTY PRESIDENT: This clause could be read as conveying an intention that prospective employees would need to join and be a financial member of the CFMEU. Is union membership taken into account in a decision to employ someone?

PN34

MR MANGOS: No, I mean, if a person wishes to join the union, they do it of their own free will.

PN35

THE SENIOR DEPUTY PRESIDENT: Can you provide me with an undertaking, which is an obligation upon which I rely for the certification of the agreement, to the effect that you would undertake to me to ensure that prospective employees were told that union membership is not a factor in their employment, whether it be in their selection for employment or decisions relative to their employment?

PN36

MR MANGOS: Yes, sir.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, clause 2.7 relates to subcontractors. Am I to understand that the parties intend that simply to be a statement of intent which is not enforceable in any way?

PN38

MR HARRIS: That is correct.

PN39

THE SENIOR DEPUTY PRESIDENT: Clause 2.8 relates to WorkCover matters. Am I to understand that the parties, whilst committing to that process, recognise that the primary obligations exist between the employer and the relevant injured employee?

PN40

MR HARRIS: That is correct. It is just the workers have a better chance of reading this than the WorkCover Act so it just helps them refresh their memory.

PN41

THE SENIOR DEPUTY PRESIDENT: Clause 3.1.1, should I read that as applying or evidencing an intention to apply the 36 hour week immediately for casual employees?

PN42

MR HARRIS: My reading of it, it is still 38 to start but it will be 36 when the 36 hour week comes in, in July '04.

PN43

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 3.4 relates to Supplementary Labour. Am I to understand that that simply represents a statement of intention and certainly does not establish any form of binding obligation on any other party?

PN44

MR HARRIS: That is correct.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 3.7 references the company's occupational health, safety and welfare policy. Later, in 3.7.6, the Construction Industry Drug and Alcohol Policy. Am I to understand that those policies are documented, they are readily available to employees, and that they may be changed during the life of the agreement?

PN46

MR HARRIS: Correct.

PN47

THE SENIOR DEPUTY PRESIDENT: Clause 4.3 on page 12 refers to a CPI adjustment. Am I to understand that by that adjustment, by that reference to CPI, that the parties actually intend to refer to the percentage increase which is to be applied to the National Building and Construction Industry Award of 2000, and that the intention is that when that increase applies, which generally takes effect in August, they will have regard to that percentage, such that if it is greater than the amounts set in this agreement by way of wage increases, the higher percentage would apply?

PN48

MR HARRIS: That is correct.

PN49

THE SENIOR DEPUTY PRESIDENT: Clause 4.8 refers to the National Building and Construction Industry Award rates, and in that regard, the 1990 award is severely deficient. Am I to understand that the parties intend to refer, with respect to trainees, to the 2000 award?

PN50

MR HARRIS: The 2000 award, yes.

PN51

THE SENIOR DEPUTY PRESIDENT: Clause 5.3 contains, as a last subclause, clause number 2.3.5. I understand the parties intend that to be part of clause 5.3?

PN52

MR HARRIS: I'm sorry? The reason I was late this morning is I was assisting to change that on the computer so I believe this will be the last document with 2.3 - - -

PN53

THE SENIOR DEPUTY PRESIDENT: No, Mr Harris.

PN54

MR HARRIS: I only believe.

PN55

THE SENIOR DEPUTY PRESIDENT: I can assure you that your belief is misplaced.

PN56

MR HARRIS: Yes. Unfortunately, it is a mistake that we are trying to correct.

PN57

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 8.2 on page 18 refers to the development of a training program. Is it intended that will occur over the life of the agreement?

PN58

MR HARRIS: Yes, as the industry changes, new ideas will come along and the training program will work all the way through.

PN59

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 refers to the industry agreed procedure on inclement weather. Am I to understand that procedure is the agreement reached between the CFMEU and the Master Builders Association but more particularly, that it is documented in a coloured brochure available to all employees on sites covered by this agreement?

PN60

MR HARRIS: That is correct.

PN61

THE SENIOR DEPUTY PRESIDENT: Finally, if I look at the signature page, I note there is provision for the employees to testify that they have been properly briefed and consulted, and have an understanding and had input into the terms of the agreement. They have not done so. Should I read anything into that?

PN62

MR HARRIS: No, with people that work as riggers, they have very dirty black hands and when we have the meeting on site, I know they don't touch the document and get black marks all over the document.

PN63

THE SENIOR DEPUTY PRESIDENT: You could pick a day when it was raining? They would even be able to wash their hands.

PN64

MR HARRIS: We are coming into summer now.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Mangos, you have heard all of Mr Harris' responses. Are you in agreement with all of those?

PN66

MR MANGOS: No. Yes, I am.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of those responses, together with the information contained in the statutory declarations, I will indicate that I will utilise the discretion provided in section 111(1)(r) of the Act to extend the time frame for lodgement of the application. I will then certify the agreement with effect from today on the basis that I'm satisfied that the agreement was reached through a process consistent with that set out in section 170LJ of the Act.

PN68

I am satisfied the agreement meets the requirements for certification, insofar as it is consistent with the no disadvantage test. It contains the necessary dispute resolution provision, the operation of which the parties have clarified, and does not on the basis of the undertaking given to me by Mr Mangos, contain provisions which are contrary to the Act. The certificate that will be sent out to the parties in the next few days will detail the various clauses about which I sought clarification.

PN69

It will not detail the answers that I have been given. Those are recorded on the transcript if it is ever necessary to have regard to them. The certificate will detail the undertaking given by Mr Mangos upon which I am relying in this matter. I congratulate the parties on reaching this agreement, and suggest that you ought not to have a dispute under the terms of it. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [11.25am]