AG2004/3129, Transcript of Proceedings [2004] AIRCTrans 1937 (25 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 7084

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2004/3129

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Newnham Earthmoving for certification
of the Newnham Earthmoving Agreement 2004

MELBOURNE

11.09 AM, THURSDAY, 13 MAY 2004

PN1

MR B. SHAW: I seek leave to appear for the applicant company in both matters.

PN2

MR R. WAINWRIGHT: I seek leave pursuant to section 43(1) of the Workplace Relations Act to appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN3

MR C. WINTER: I seek leave to appear in accordance with the same section under the Act on behalf of the Australian Workers Union.

PN4

THE VICE PRESIDENT: What do say about the applications for leave to intervene - leave to appear is granted.

PN5

MR SHAW: Thank you, your Honour. Well, given the Commission as presently constituted's previous decisions in this matter I make no objection to the intervention in the matter confined to the purpose that you would have granted such interventions in the past.

PN6

THE VICE PRESIDENT: So it deals with whether or not there is a valid application before me?

PN7

MR SHAW: Yes.

PN8

MR WAINWRIGHT: Well, your Honour, in those circumstances we simply request that this matter be adjourned to allow us to (a) investigate whether or not any of the 38 employees are members of our organisation and (b) whether or not they were informed that they could approach us in relation to this application and (c) whether or not they were asked if they approved of this application.

PN9

THE VICE PRESIDENT: The same for you, Mr Winter?

PN10

MR WINTER: I would actually - I would support that proposal and I would go one step further to say that we have, we believe - I believe we have members with the company involved.

PN11

THE VICE PRESIDENT: I have two questions for you anyway, Mr Shaw, which may necessitate an adjournment, so I don't ask you to respond at this stage to the basis on which the application is put. My issues go to the statutory declaration. It doesn't indicate how many employees are covered by the agreement. Can you advise me of that for a start?

PN12

MR SHAW: I can. Your Honour, the application itself - there is a bit of mea culpa here which may make it easier for you to make a ruling in respect of the two applications that are before you - but the application I would have to concede is defective in a sense that the statutory declaration doesn't refer to the number of employees, and indeed, it doesn't - in a temporal sense it doesn't refer to the XF application either by the way, but that is probably not a major fault in it.

PN13

THE VICE PRESIDENT: No. I have also got an issue - - -

PN14

MR SHAW: And also there isn't a statutory declaration from an employee either though the employer's statutory declaration makes it clear that it was negotiated by employees on behalf of the other employees. That I can correct now. I have a statutory declaration from one of the employees who was the negotiator and I would like actually if before I leave the Commission if your associate would make me a copy.

PN15

THE VICE PRESIDENT: That is fine.

PN16

MR SHAW: I had a spare copy but I gave it to Mr Wainwright earlier.

PN17

MR WINTER: If I could ask that I be provided with a copy also.

PN18

THE VICE PRESIDENT: Any objection to that? No. We will undertake to provide that material.

PN19

MR SHAW: So the answer to your question is there are 38 employees and that is, indeed, included in the employee representative's statutory declaration.

PN20

THE VICE PRESIDENT: I also don't have a copy - or I couldn't find one when I reviewed the file - of the information provided to the employees in compliance with 170LK(4).

PN21

MR SHAW: I have to - unfortunately I received all this documentation late on Tuesday. I did send an e-mail to my client yesterday seeking a number of clarifications which he gave. I omitted to seek a copy of the LK(4) application and I note that it is not exhibited - it certainly is always my practice to exhibit it to the statutory declarations in these applications, nor is a copy in my papers either, your Honour, so I will simply have to get a copy of that. I have an example of an earlier one, but, of course, I don't know whether that is what they produced or not.

PN22

THE VICE PRESIDENT: I have also got an issue about the 6.4 in the stat dec. There is no information provided there. Now, the agreement provides for an all up rate, so logically there is a reduction in that they don't get the allowances provided for in the all up rate. So I am seeking as part of the statutory declaration some more explanation about how all that works. Perhaps the most convenient course in relation to both the LK(4) issue and the no disadvantage test, and also the XF matter, would be to provide you with an opportunity to forward that material and the matter can be called on once it has been provided.

PN23

MR SHAW: I think that is probably the best course. Would it be - if we are going to look at a no disadvantage test though and do a stat dec on it, would it not be better to deal with the XF application as well so that we, in fact, have something to compare it with in a technical sense?

PN24

THE VICE PRESIDENT: No, no. Certainly, yes, and it is proposed that it be the AWU Construction and Maintenance Award 2002.

PN25

MR SHAW: Yes.

PN26

THE VICE PRESIDENT: Is there any issue about the relevant award?

PN27

MR WAINWRIGHT: Well, yes, we would have an issue about that being referred to as the relevant award. First of all, it hasn't been dealt with in the company's statutory declarations, and secondly, we may have an argument to say that the relevant award is, in fact, the National Building Construction Industry Award.

PN28

THE VICE PRESIDENT: You may have an argument?

PN29

MR WAINWRIGHT: We may have an argument.

PN30

MR WINTER: I would slightly differ because I believe the company is actually a named respondent of the Construction and Maintenance Award and it has certainly been - - -

PN31

THE VICE PRESIDENT: It seems to resolve your problem, Mr Wainwright, if that is the case.

PN32

MR WINTER: And it has certainly has been in the past a member of the CCF.

PN33

THE VICE PRESIDENT: The CCF also lodged the application so I am a bit confused.

PN34

MR SHAW: Yes, yes. I don't think being - that is true. That was one of the questions I asked. In fact, I might just hand this up. I might - it does - it is obviously meant for internal purposes. It contains some fairly profound legal advice in the very last sentence, your Honour. It advises my client to keep his fingers crossed, but - you will see question 1. I raised that question myself because I couldn't believe that a company that employed 38 employees would not be respondent to an award - that the AWU would be that - made an oversight like that given it has been around a long time and it says clearly that they aren't a respondent, but if Mr Winter says they are either we check it on the Internet or make any independent check.

PN35

THE VICE PRESIDENT: Well, yes, I think perhaps have a discussion with Mr Winter and - - -

PN36

MR SHAW: And if obviously they aren't a respondent we don't need to worry about the XF application.

PN37

THE VICE PRESIDENT: No, that is right, it also resolves Mr Wainwright's concern.

PN38

MR SHAW: Yes.

PN39

THE VICE PRESIDENT: Well, it doesn't resolve his concern - - -

PN40

MR SHAW: Doesn't resolve it - - -

PN41

THE VICE PRESIDENT: - - - but deals with the issue.

PN42

MR SHAW: It eliminates it.

PN43

THE VICE PRESIDENT: Well, I propose to deal with it on the basis that once the - and I share your evident concern of the potential problems you have identified and I don't think keeping his fingers crossed is going to lead to a resolution to those issues. I am particularly interested in the - well, obviously the other statutory declaration you provided but also the no disadvantage test and how that will operate. It seems to me it is a more complex issue. I think he has misunderstood the question. That is he is asserting there is no overall reduction, but actually said there is no reduction. Well, there is a reduction manifestly on the face of the document. It is a different question.

PN44

MR SHAW: Yes, there is another potential misunderstanding available because this is, in fact, a third generation agreement and he may well, indeed, have interpreted my question as being whether there is a reduction compared to previous agreements that arise from the award.

PN45

THE VICE PRESIDENT: Yes.

PN46

MR SHAW: So I think you are right; the no disadvantage test does need to be addressed more completely than it has been.

PN47

THE VICE PRESIDENT: Okay. Well, on that basis I will adjourn the matter until I have received the material from you, Mr Shaw. How long is that likely to take?

PN48

MR SHAW: I wouldn't think it would take very long at all. I would think we could - today being Thursday, certainly by the middle of next week.

PN49

THE VICE PRESIDENT: Okay. Well, once it has been provided I will relist the matter at that stage. Mr Wainwright.

PN50

MR WAINWRIGHT: Your Honour, as our intervention has not been opposed we would seek to be notified of any further listing, sir, of this matter.

PN51

THE VICE PRESIDENT: Any objection?

PN52

MR SHAW: No, I have no objection.

PN53

THE VICE PRESIDENT: All right, both parties will be notified. It may be convenient - do you have any objection to providing the information that you will file to each of the organisations?

PN54

MR SHAW: Well, if I don't that will be good grounds for asking for an adjournment so I think the answer is yes.

PN55

THE VICE PRESIDENT: All right. Thank you, Mr Shaw. Well, I will adjourn the matter to a time and date to be fixed upon receipt of the advice from you, Mr Shaw. Thank you.

ADJOURNED INDEFINITELY [11.17pm]