AG2003/9332, Transcript of Proceedings [2004] AIRCTrans 21 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1216

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9332

APPLICATION FOR CERTIFICATION
OF AGREEMENT

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

ADELAIDE

12.05 PM, THURSDAY, 11 DECEMBER 2003

PN1

MR HARRIS: I appear on behalf of the CFMEU. With me is MR M. GAVA, one of the stat dec signers and an employee of ours, and MR R. TREMAIN who is a manager of the company in replacement of Michael Gallagher.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harris. Mr Harris, can I understand that you rely upon the statutory declaration of Mr Gava in relation to this matter?

PN3

MR HARRIS: That is correct.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Tremain, you are a Manager of the employer?

PN5

MR TREMAIN: Correct, sir.

PN6

THE SENIOR DEPUTY PRESIDENT: In that regard, am I to understand that you have the authority to commit the company to issues relative to the agreement?

PN7

MR TREMAIN: Yes.

PN8

THE SENIOR DEPUTY PRESIDENT: Am I to understand then that you would also rely upon the statutory declaration filed by Mr Gallagher in this matter?

PN9

MR TREMAIN: Yes.

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Harris, on that basis, I don't need to hear further from the parties about the process that was followed so as to arrive at this agreement.

PN11

MR HARRIS: Thank you.

PN12

THE SENIOR DEPUTY PRESIDENT: I do, however, have some questions about the agreement itself. Perhaps, for Mr Tremain's benefit, I will indicate now. Mr Tremain, the questions that I have do not invite the parties to rewrite the document. They go to issues that I will need to take on board in considering the application for certification. They also go to the extent to which I want to clarify with the parties their intention relative to various provisions.

PN13

Whilst I will address my questions to Mr Harris, the opportunity exists for you to seek to clarify any answers that he might give, so that if you want to expand on an answer or, indeed, disagree with one, you should feel free to do so. There are also a couple of provisions where I'm likely to look directly to you for assistance. Mr Harris, can I refer you, first of all, to clause 3, which is the Scope and Area. Perhaps, before I do that, I note Mr Tremain does not appear to have a copy of the agreement. I can loan you a copy from the Commission's file.

PN14

MR HARRIS: I've got one.

PN15

THE SENIOR DEPUTY PRESIDENT: Do I understand that you have got one still, Mr Harris?

PN16

MR HARRIS: I wouldn't give away mine.

PN17

THE SENIOR DEPUTY PRESIDENT: Clause 3 is the scope and area clause. Mr Harris, is there any other work intended to be covered by this agreement which is not defined and covered by the National Building and Construction Industry Award of 2000?

PN18

MR HARRIS: In this case, no, there isn't.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I then take you to clause 15 on page 3, which is the injury and sickness insurance. That refers to an annexure A. Is there such a creature?

PN20

MR HARRIS: No, it is not in my file. I know what it is supposed to be. It is actually a copy of the insurance policy of how the men are covered, and I have not got one either.

PN21

THE SENIOR DEPUTY PRESIDENT: Can you tell me whether one was provided to the employees?

PN22

MR HARRIS: Yes. It is a new colour brochure by IUS, which is the insurance company.

PN23

THE SENIOR DEPUTY PRESIDENT: So what you are saying to me is that such an annexure was provided to the employees at the time when they voted on the agreement?

PN24

MR HARRIS: That is correct.

PN25

THE SENIOR DEPUTY PRESIDENT: I see. Could you provide one to me within, say, the next 7 days.

PN26

MR HARRIS: I can do that.

PN27

THE SENIOR DEPUTY PRESIDENT: Could you provide it to me on the basis that noted on it is the employer's agreement that this was the document that was provided to the employees at the time when they considered the agreement?

PN28

MR HARRIS: I will write that, and I will return that on Tuesday when I return to this building.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Will that annexure detail the specific arrangements relative to that insurance cover, that is, the extent of the cover, the duration of the cover?

PN30

MR HARRIS: Apart from my mental thing, the $800, it will explain the 14 days waiting period, what people are covered for, how long the 104 weeks, but it is a broader document that covers that you can have more than $800 so it won't have the $800 figure where this one, the actual document, does.

PN31

THE SENIOR DEPUTY PRESIDENT: I see. Just in relation to that then, is it the intention of the parties then that the weekly payments would reflect average weekly earnings up to an amount of $800?

PN32

MR HARRIS: No, in this case, it is a flat $800.

PN33

THE SENIOR DEPUTY PRESIDENT: I see, so notwithstanding the words "up to", the intention of the parties is that $800 is the amount?

PN34

MR HARRIS: Up to $800?

PN35

THE SENIOR DEPUTY PRESIDENT: Under what circumstances would it be less than $800?

PN36

MR HARRIS: I will have to ask a question on that one. Mine does not usually have that written.

PN37

THE SENIOR DEPUTY PRESIDENT: I see.

PN38

MR HARRIS: Do I ask the question now or - - -

PN39

THE SENIOR DEPUTY PRESIDENT: By all means. If you can clarify it now, it will save any further effort.

PN40

MR HARRIS: Excuse me one minute. It is actually the flat $800. The "up to", the reason that is there, is because they do have apprentices that work with the company, and while they work under the EBA, they wouldn't be expecting - they might like but wouldn't be expecting the $800 figure.

PN41

THE SENIOR DEPUTY PRESIDENT: I see.

PN42

MR HARRIS: They would get whatever they were earning as opposed to it.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 19 and, in particular, 19.3 says that from 31 December, 2004 the hourly rate will move from a 38 hour divisor to a 36 hour divisor.

PN44

MR HARRIS: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: If I look at the wages schedule set out in clause 8, that indicates that a 36 hour week divisor comes into effect on 1 July, 2004. Those dates are incompatible as I read them. Do you need to have a discussion amongst yourselves there to clarify that?

PN46

MR HARRIS: Thank you. It is actually stretching the use of a typing error. The written part that you have just pointed out to me is the correct one. Page 2, where the wage sheet is, that should also read "31.12.'04", and the reason - it was explained to me just then - they are on a lengthy project at the moment at the old ETSA building where they couldn't come in at an earlier stage, even though they had agreed. So the understanding is, and I emphasise I am stretching the words "typing error", but that should actually be 31.12.'04. Then if you go up to the top of part 19, you will see then from 1 January 2005 is when the actually money will be coming out of the employees' pay to do this. To stick with 1/7 when the employees will get the extra money but it won't be coming out of their pay and the employer will be paying twice. Whilst at times that might be good, it is not in this case.

PN47

THE SENIOR DEPUTY PRESIDENT: There are two sets of questions that arise from that, Mr Harris. If I look back at the wages schedule in clause 8, if indeed the intention of the parties is to apply the 36 hour week divisor from 31 December 2004, then how should I understand the next wage increase to be calculated to apply from 1 March, 2005 to relate to that hourly rate that comes into effect as of the end of December? To answer my question, you may have to do some calculations but I'm having awful difficulty.

PN48

MR HARRIS: I was going to say that unlike yourself with a calculator there, I'm not 100 per cent that I could quickly work those figures.

PN49

THE SENIOR DEPUTY PRESIDENT: You see, if I take the $19.96 per hour rate and apply 4 per cent to that, I'm not sure I'm coming up with the same hourly rate.

PN50

MR HARRIS: Right.

PN51

THE SENIOR DEPUTY PRESIDENT: If I take the weekly amount of $747.46 and divide that by 36, I still don't come up with $20.70. I come up with $20.76. What is underpinning the question and the concern I've got is that whilst I understand the intention of the parties is to ensure that the 36 hour week divisor came into effect from 31 December 2004, I have got to foreshadow to you a significant degree of concern in that employees voted on this document, and if the employees to be covered by this agreement are anything like normal employees, they would probably have had substantial regard to this particular clause which assumes normally some significance in people's minds.

PN52

I'm just wondering whether the parties are, in fact, in a position where they can tell me that the document that the employees voted on is now the document the parties tell me I ought to take as the agreement that was made.

PN53

MR HARRIS: I work on the assumption they didn't have calculators. They see the first figure which changes at the beginning. It gives about another $1 an hour, and unfortunately, as it looks like in this case, perhaps trust the union official while they are doing the figures to come up with a correct figure. I have just had explained in the area of this particular one, it was explained and I know how I explained it, that because you are coming into the 36 hour, your actual rates change.

PN54

While being an incorrect rate by a few cents - although when you pointed out to me $19.96 plus 4 per cent gave you 20-something, $20.77 or something, the 4 per cent is not compound. The 12 per cent is over the - from the beginning of the agreement but I don't want to say anything that would even rob the lads of 7 cents, so I might have to go away and relook at those figures.

PN55

THE SENIOR DEPUTY PRESIDENT: Well, given that you are going to have a period of 7 days - - -

PN56

MR HARRIS: To bring that other - - -

PN57

THE SENIOR DEPUTY PRESIDENT: I wonder whether both the parties might confirm to me their collective understanding of how clause 8 should be read. I stress the word "collective." You will also need to have regard in presenting that to me, that I will need to consider then whether or not that collective understanding is close enough to the words in the agreement so that I can presume that the employees who voted on this document were, in effect, understanding that they were voting on the same thing that you are now telling me reflects your intention.

PN58

MR HARRIS: I understand what you are saying to me.

PN59

THE SENIOR DEPUTY PRESIDENT: Clause 20 relates to WorkCover matters. Am I to understand that notwithstanding the words in this clause, the parties intend that the primary obligation is between the employer and the employee in accordance with the requirements of that Act?

PN60

MR HARRIS: That is correct.

PN61

THE SENIOR DEPUTY PRESIDENT: Finally, am I to understand clause 21 simply reflects an intention at this stage which the parties acknowledge may be overridden by a future agreement?

PN62

MR HARRIS: That is correct. It gives them a time frame.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Tremain, two questions of you. First of all, leave aside the two matters that Mr Harris is going to come back to me on, is your position the same as that which he has expressed on all of the other issues?

PN64

MR TREMAIN: Yes.

PN65

THE SENIOR DEPUTY PRESIDENT: Do you understand that I am seeking material relative to both the annexure A and particularly the operation of the wages clause which is endorsed by both the union and the employer?

PN66

MR TREMAIN: Yes.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, if I receive that information within the next week, and am satisfied on that basis that the agreement is able to be certified, I will certify it from the date upon which I receive that information. The certificate would then be forwarded out to the parties and would detail the various clauses about which I've sought clarification. It would not detail the responses, and it would not detail the information that you are going to provide to me. All of that material will be retained on the Commission's file in the event that future reference needs to be made to it.

PN68

If, on the other hand, I either don't receive the information within the next week or that information is such that it does not satisfy me that I can certify the agreement, I will endeavour to relist the matter pre-Christmas so as to give you the opportunity to address me in that regard. Are you happy with that approach?

PN69

MR HARRIS: I feel very hopeful that I will get that information and not take up people's time before Christmas.

PN70

THE SENIOR DEPUTY PRESIDENT: Very well.

PN71

MR HARRIS: Thank you.

PN72

THE SENIOR DEPUTY PRESIDENT: Mr Tremain, are you happy with that approach?

PN73

MR TREMAIN: That is fine.

PN74

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [12.25pm]