C2004/3344, Transcript of Proceedings [2004] AIRCTrans 2217 (16 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7342
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/3344
C2004/3345

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by Communications, Electrical,
Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of
Australia for the making of the National
Electrical, Electronic and Communications
Contracting Industry (Roping-in No 2) Award 2004

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

NGT LIMITED and ANOTHER

Notification pursuant to section 99 of the Act
of an industrial dispute re log of claims -
wages and working conditions

MELBOURNE

10.18 AM, THURSDAY, 3 JUNE 2004

PN1

MR R. CRAMPTON: I appear for the Electrical Trades Union of Australia.

PN2

MR J. GLISSON: I appear for Northern Group Training.

PN3

THE COMMISSIONER: Mr Crampton.

PN4

MR CRAMPTON: Thank you, Commissioner. I must say from the outset that it was a bit remiss on my part but I was working under a bit of presumption that the both matters, this matter and the matter listed for 11 o'clock will be heard around about the same time or at the same time and the exhibits that I propose to hand up in respect of both of matters. It is a consolidated exhibit so you might just have to bear with me.

PN5

THE COMMISSIONER: We might just call on the other matter just to be sure, at the same time. I will take the appearances in this matter as well.

PN6

MR R. CRAMPTON: I appear for the Electrical Trades Union of Australia.

PN7

MR J. GLISSON: I appear for Northern Group Training.

PN8

THE COMMISSIONER: I should say I listed these matters separately because for some reason I had the impression that the making of the award was going to be a contested matter but my pessimism has now turned to optimism. Is that correct?

PN9

MR CRAMPTON: Well, it won't be a contested matter for the purposes of today's proceedings. The roping-in application will proceed in respect of AIG training and I was led to believe by AIG that they would either not attend today, which is evident, and/or that they might communicate with the Commission in respect of their view towards each of the matters and they are not - - -

PN10

THE COMMISSIONER: They have done that. I will read them onto transcript if you wish. This is correspondence from Peter Noel and the Director of Workplace Relations AI Group,

PN11

Unfortunately the AI Group cannot attend the hearing before you at 11 am, Thursday, 3 June 2004. However, AIG Training does not object to the dispute finding or inclusion in the roping-in award. For your information, Manufacturers Group Training Scheme of 511 Church Street, Richmond was roped in through the roping-in award number 1 1999. Manufacturers Group Training Scheme is the predecessor of the Australian Industry Group Training. If there are any further proceedings in relation to this matter AI Group will be represented.

PN12

MR CRAMPTON: Thank you, Commissioner. And in respect of NGT Pty Ltd we are not going to press the application for roping-in today, just to seek to have a dispute finding made and I will deal with that a little bit later, though I would like to hand up an exhibit in respect of these matters. I will have to take you through the exhibit, Commissioner. It is in an order which you can see has the roping-in application at the front. We will deal with the dispute finding first. Are you happy, Commissioner, to mark the exhibit as one exhibit or - - -

PN13

THE COMMISSIONER: I might mark them separately as we go through, yes.

PN14

MR CRAMPTON: Thank you, Commissioner. Well, in respect of the first matter which is C2004/3345, the ETU alleges that there is an industrial dispute in existence between the ETU, the Electrical Trades Union of Australia, NGT Pty Ltd and Australian Industry Group Training. In support of that, Commissioner, the Electrical Trades Union - or to evidence that the Electrical Trades Union served a log of claims and letter of demand upon both those organisation on 6 April 2004 and copies of those letters are in that document that I handed up, Commissioner, at the second last tab.

PN15

THE COMMISSIONER: Yes.

PN16

MR CRAMPTON: And I think it might be even marked letter of demand.

EXHIBIT #C1 CORRESPONDENCE DATED 06/04/2004 FROM CEPU TO AIG AND NGT

PN17

MR CRAMPTON: Thank you, Commissioner. Appended to that letter of demand was the - I should correct my appearance too. I am actually appearing for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

PN18

THE COMMISSIONER: Easy for you to say.

PN19

MR CRAMPTON: Yes. Much easier to say Electrical Trades Union.

PN20

THE COMMISSIONER: That is right.

PN21

MR CRAMPTON: But appended to each of those letters of demand was a copy of the CEPU log of claims and I will hand up a copy of that separately, Commissioner. The letter of demand sought or claimed compliance with the log of claims that each of those organisations comply or observe the rates of pay and conditions of employment contained in the log of claims and also set out that:

PN22

Unless within seven days of the date of the letter you comply with these demands the union will ...(reads)... Act 1996.

PN23

I am instructed, Commissioner, that we have had no advice as to compliance with those claims and accordingly did follow through and notified the Commission of an alleged industrial dispute. The notification was made and upon being advised of the listing of hearing this matter the NGT Pty Ltd and AIG Group Training were both notified of today's hearing and the notification and the letter of demand and log of claims were sent by registered mail and under the fourth tab, Commissioner, there is the registered mail receipts and there is also again a bundle.

PN24

So if I take you through to the third document in under that tab there is the registered mail posting receipts of the notice of hearing to the parties and then the next document, the fourth one in, is the notification to the Commission of the alleged industrial dispute and then the next document in is the registered mail posting receipts of the letter of demand and log of claims served on 6 April 2004.

EXHIBIT #C2 BUNDLE OF POSTAL RECEIPTS

PN25

MR CRAMPTON: Thank you, Commissioner. On the basis that the log of claims has been served and there has been no compliance with those claims the union would submit that prima facie there exists an industrial dispute between the CEPU and the NGT Pty Ltd and AIG Training and accordingly we would seek that a dispute finding be made between the parties and the dispute is over the issues contained within the log of claims and further, that a record of finding be made and in respect of NGT and the Electrical Trades Union that a direction be issued to the parties that the parties confer in respect of trying to seek a settlement or part settlement of that log of claims. If the Commission pleases.

PN26

THE COMMISSIONER: Thank you. Mr Glisson.

PN27

MR GLISSON: Thank you, sir. If I can just make, well, a slight correction before we go too far. NGT is in fact a trading name for each of our offices. The correct title is Northern Group Training Pty Ltd. We are not going to object to the finding of a dispute simply on the basis of the name being correct in the notification. We accept the intent was there to rope-in Northern Group Training when it refers to NGT and we accept that that is the case.

PN28

If I can give just a very brief history of NGT, Northern Group Training, if we refer to it as NGT. NGT is a not-for-profit organisation created some 15 years ago. Our original chairman was Lance Barnard, Deputy Prime Minister of Australia at the time when we were created I believe. He created NGT to try and create employment through training principally in Tasmania, in the north of Tasmania and that is why it built the name Northern Group Training.

PN29

We started off as a very small organisation employing about a dozen apprentices principally because they were unable to complete their apprenticeship with any individual employer. We were able to farm them around to different employers and give them the full range of experiences they needed and were able to assist them in completing their apprentices. Over the last 14 or 15 years that has grown to a size where are now at times have had as many as 850 apprentices and trainees employed by NGT.

PN30

We now have expanded into, as per the logs of claim there, you will see that in the information about NGT it refers to our Launceston office, our Hobart office, our Devonport offices which are three of the four Tasmanian offices, Melbourne office, Sydney office, a Perth office, an Adelaide and a Brisbane office. So we are now in all States of Australia. As I say, we try and create employment by assisting apprentices and trainees, get their apprenticeship or traineeship under way, give them a full range of skills and experiences that are required so they get their qualifications and at the end of which we part company.

PN31

We don't employ other than our field staff beyond their apprenticeship. That is our role in life. That is our purpose so to speak of the organisation and that is what we are all about. We have apprentices and traineeship in more different vocations than I care to name and an exercise was done some time ago which reflected that we were using at one stage 54 different State awards and we are also at times utilising a number of the federal awards where the trainees and apprentices were in all sorts of different vocations, hospitality, the metals, electrical, plumbing, office administration, finance, a very, very broad range of vocations where we employ these people and farm them out to different hosts and also deliver a range of training to them.

PN32

It is an administrative nightmare at times for us to try and keep up to speed with each of the various industry awards, particularly when as I say we have got some State, some federal. NTGs intention going back some time now was to create a federal award for NTG, NTG Trainees and Apprentices Award and have that put in place. We in fact back in 1998 wrote to all of the trades unions we could find or think of. We obviously missed one or two of the State unions in different States, but all the federal unions were corresponded to by myself.

PN33

We asked them to log us so that we could get the process under way to create a federal award. Since that time we have had a couple of responses. We have had a dispute found with the ASU for example and now we have the ASU. That dispute was found and we have had an award created for our staff through the ASU but we still don't have a trainee and an apprentice award federally for all our employees that are apprentices and trainees. So we welcome the opportunity to having this dispute found and we welcome the opportunity also to talk to the union about how we progress from here.

PN34

We certainly want to get an award in place. We are more than happy to reflect most of the terms and conditions in the various State and federal awards. Where there is conflict between the State and federal we will have a look at that, but the intention isn't to necessarily minimise the benefits to the individuals. It is just to get some consistency right the way across and in some cases there will be some considerable benefit for the trainees or apprentices. On the other hand there might be in some instances some minor negative, but I am unaware or can't think of any of those at this stage, but we do want to create a federal award and what we would like the Commission to do is in fact not just create - or endorse the fact that a dispute exists but also hopefully set some time frame in which the parties come back before the Commission with the basis of an award and get an award created.

PN35

Our intention is not just to create an award for the electrical division but I spoke to various union officials about whether or not we can expand this to create an award that will cover all our apprentices and trainees. The national training wage would certainly look after in part the wages for our trainees, but even there we are looking at - I am sure the Commission is familiar with the national training wage where we have got skill levels A, B and C. We see it almost a pointless exercise in having three different sets of rates. We will simply take the highest of the three. We will have - I think that is skill level A and we will apply skill level A to all our trainees.

PN36

If someone is going to penny pinch over, you know, three or four dollars to take on a trainee then they are really looking at cheap labour and not truly looking at the trainee. So we look at the higher of the three and simply flow that all the way through our award. The biggest problem we have with awards at the moment is the fact that sometimes they are varied without our knowledge and we can't expect to be told every time someone wants to vary an award, but if an award is varied and an allowance is moved and we don't hear about it for some months, maybe six months in some instances we haven't been notified, we then have a problem with the back pay because we actually charge these trainees out to various hosts and if we go to the host six months later and say that trainee you had for two months six months, we need to pay him X number of dollars because we missed out on an award increase, they are going to tell us to go and whistle.

PN37

We have then got to the pay the trainee and no way of recouping it other than putting our charges up which over time will just threaten the number of apprentices and trainees that we can assist in getting their qualifications. So NGT would certainly welcome the opportunity. We don't oppose the creation of the dispute and would welcome the opportunity of negotiating with the unions. If I can use the term negotiating. I don't think there is much of a negotiation really. I mean we have indicated to the plumbers union for example that will reflect the rates at the Southern States Plumbing Trades Award.

PN38

We are certainly looking at the National Electrical - I won't go through the full title but I am sure you are aware of the award I am referring to. We spoke to the CFMEU about the Building Trades Award and we have said we are currently paying the federal rates out of there but we have some problems with their award because, for example, their award talks in jury service about jury service applies to tradesmen and labourers but there is nothing in it for apprentices. Some of our apprentices certainly get called for jury service and we want to be able to put that sort of thing in there to make sure that they are not disadvantaged, they don't miss out and overall we get an award that we can make sure that it moves as quickly as possible after a national wage increase or something of that nature.

PN39

We don't have to wait then for the rates to move and then some time later the allowance has to move in so many awards that it is very difficult for an organisation like us that is respondent to so many awards to keep track of and keep up to speed with. It is an attempt in part by us to make sure that the apprentices and trainees don't miss out and are not delayed in getting increases that they clearly justifiably expect and deserve.

PN40

Just a tiny bit more about NGT. NGT is in a number of divisions. We have a division which we called NGT Access and Equity. That is a division set up to assist the disabled only, only employees disabled, individuals. Very few of those go into traineeships or apprenticeships because of the disabilities, whether mental or physical. They certainly - well, I think they are already protected. We have an agreement with the ASU about how their wage rates are determined, but if there is anything that comes out of this federal award that would affect them then obviously we would flow that onto them.

PN41

We are what we call a QERTO, a quality endorsed registered training organisation to deliver some of the training. There is no apprentices employed by that division so that is not an issue. We have a new apprenticeship centre and again although they facilitate the payment of subsidies to employers and manage the paperwork for the State and Federal Government they don't employ apprentices and trainees as such. So it really boils down just to our group employment division which employs the apprentices and trainees and as I said earlier, that is Northern Group Training Pty Ltd that manage that part of it.

PN42

The only other division we have got is what we call NGT Corporate Services and that is a section that pays my wages and the wages of the administrators, the managers within our organisation. It doesn't reflect on the apprentices and trainees. Sir, I endorse the creation of the dispute and would ask that the Commission encourage the parties into discussions with an opportunity of maybe setting a report back to you so that no-one within our organisation and there are some very busy people, but if I can go back to them and say I have got a report back to the Commission at such and such a date and in prior discussions we just suggest it.

PN43

Maybe if it is convenient to the Commission, maybe the last week in - no, I do have a problem with that date. Somewhere around the end of July we looked to try and come back with a report back to you on the progress so far and hopefully by that stage we would have a document we could put up as the initial stages of the award. As I then discussed and I suppose the initial part will certainly cover the electrical and hopefully the plumbing, but we can add to it and expand the award over time hopefully as other unions come on board and we broaden the range.

PN44

NGT, Northern Group Training's position is we don't intend opposing any union becoming party to the award. Our apprentices are told right from day one they have the right to be a member of the union. If they join the union and they want the union involved in the discussions we have no problem with that at all and as I said earlier, we in fact wrote out to the unions and I have got copies of most of that correspondence still that I can supply if need be at a later stage, reflecting that we did write to the unions asking them to log us.

PN45

We thought at one stage of actually logging the unions where we didn't get any response but we were told that that creates a range of other difficulties and problems which we thought rather than go there we would wait and see and - - -

PN46

THE COMMISSIONER: Have you had any response from the CFMEU or AMWU or those other areas?

PN47

MR GLISSON: The AMWU have written back to us and said that they have taken the proposal - Phil Baker from the Tasmanian branch spoke to me recently and said that it had been on a couple of occasions to the - I can't think, one of their executive meetings. They had no problem with it. They didn't oppose the creation of the - I will just read the correspondence from the AMWU:

PN48

Thank you for your correspondence advising the outcome -

PN49

Where are we -

PN50

With respect to your application to the making of a national award known as the NTG Award and seeking advice as to whether the union wishes to be party to the award. The AMWU prior to joining any national award have an internal process whereby State secretaries are consulted. Internal process is currently proceeding and I will contact you as soon as a decision is made.

PN51

That was back in October 2002. I have spoken to Phil Baker from the union since then on a number of occasions and Phil has indicated that their process has been gone through and they have no problem with the award providing they are able to represent the interest of the metal trades trainees and also the food sector and printing. I also was logged by the printing division at one stage, so I have had similar correspondence from the National Union of Workers advising that they have no objection to the creating of the award and again would seek to members that they are able to cover.

PN52

The ASU have responded. The Shop, Distributive and Allied for our retail trainees have responded. A number of the unions have responded, the ASU. They have all indicated they want to be able to represent the potential members but it appears getting the ball rolling and actually doing the leg work is in the first place is going to fall back to me and we are more than prepared to do that providing we can get the ball rolling properly and the Commission is prepared to handle the dispute and the award. Thank you.

PN53

THE COMMISSIONER: All right. Good, thank you. That is a refreshing story.

PN54

MR CRAMPTON: Could I just say, as indicated, we seek a direction that the parties do confer so there is no objection to in fact there be a report back. However I must just say that in respect of the union's position we have provided Mr Glisson with a copy of the National Electrical, Electronic and Communications Contracting Industry Award 1998 which is the award that we originally proposed to have NTG roped into and it probably comes as little surprise that we see that as a simple approach to resolving the issue of protecting employees, electrical employees particular of NTG with their conditions providing them with a relevant safety net.

PN55

Our approach basically is that we don't see that it is necessary to re-invent the wheel and that the administrative issues raised in respect of how adjustments might be passed on or related to NTG when they occur, then certainly we can give undertakings in respect to how we could facilitate that. I just say that obviously we have coming from different perspectives and we don't want to get bogged down in that process and at present there are apprentices in Victoria who are working or fall only under the industry sector rates and compared to all other group training companies in Victoria who are responded to the Contracting Industry Award are at a bit of a disadvantage.

PN56

So it is just to indicate that I didn't want the perception that we are overly enamoured with the broad based award approach, but we certainly are prepared to enter into those discussions and hopefully from our perspective those discussions will convince NTG of the worthiness of flowing a roping-in application.

[10.45am]

PN57

MR GLISSON: If I might just respond very briefly to that. We don't have trainees in Victoria I don't think in the electrical sector but the apprentices that we have there are paid as a minimum the rates that are prescribed in your federal award. That is to the best of my knowledge. I think we have only got about four electrical apprentices. Three are paid in accordance with this and the other one is paid according to the EBA that you have with the host organisation.

PN58

THE COMMISSIONER: All right, thank you. I will make a formal finding of dispute firstly and then we will deal with the next matter. The Commission finds that pursuant to section 101 of the Workplace Relations Act that an industrial dispute within the meaning of the Act exists between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Industry Group Training and NGT Limited - I should use the correct name, sorry, Northern Group Training Limited.

PN59

The matters in dispute are those contained within the log of claims served with the letter of demand on the organisations on 6 April 2004. I find that the dispute exists beyond the bounds of any one State and I direct that the parties confer on the matters in dispute. A formal finding will be attached to the file. This matter is now adjourned. We will now deal with C2004/3344, just a roping-in. Just before we go ahead we will go off the record.

OFF THE RECORD

PN60

THE COMMISSIONER: Mr Crampton.

PN61

MR CRAMPTON: Thank you, Commissioner. Well, pursuant to section 111(1)(b) of the Workplace Relations Act the union seeks that an award be made and that award be known as the National Electrical, Electronic and Communications Contracting Industry (Roping-in No 2) Award 2004. If I could refer you to the bundle of exhibits of documents I handed up earlier, Commissioner, I can indicate that the first, if I could work from the first, the first document is the hearing notice and attachments that were forwarded to Australian Industry Group Training, that is the first.

PN62

The second tab is the application for a roping-in award and then at the third tab is the draft order that was filed for the making of the award. It does need to be completed, obviously, and that the appendix - or the annexure A would obviously only refer to the Australian Industry Group Training. Further on under the next tab, the fourth tab is the registered mail receipts in respect of the notification of the Australian Industry Group Training of the listing of today's hearing and also the registered mail posting receipts for the forwarding of the application and a copy of the award to the Australian Industry Group Training.

PN63

As Australian Industry Group Training have indicated in their correspondence to the Commission, they are aware of the proceeding and have indicated that they don't have objection to making of the award. What we would say in support of the making of the award, Commissioner, is that the application is on all fours with the principles of the Commission, particularly principle 11 for the first award and extension to an existing award. The award that we seek to have the AIGT roped into has been considered in respect of each of the issues that are raised under principle 11.

PN64

Furthermore, we submit that the award will provide a safety net for those employees of the Australian Industry Group Training, that the making of the award would further the objects of the Act and particularly the objections of part VI, section 88A would provide particularly wages and conditions of employment that are protected by system enforceable awards established and maintained by the Commission. As I have indicated, that certainly within the content of section 88B(2) it would establish an appropriate safety net.

PN65

As indicated in the correspondence from Australian Industry Group Training, it appears that they may in fact be respondent to the award already, however for the purposes of today's proceeding we seek the award be made and it may be at some stage that the respondency of the award might be tidied up. But at this point we would seek that the award be made and again submit that the making of the award is ..... the objects of the Act is consistent or is in line with the requirements of the principles and we would seek that the award be made. If the Commission pleases.

PN66

THE COMMISSIONER: Thank you. This is an application now by consent for the making of an award to be known as the National Electrical, Electronic and Communications Contracting Industry (Roping-in No. 2) Award 2004. I am satisfied having heard the submissions of Mr Crampton that the making of such an award is consistent with the wage fixing principles of this Commission and is consistent with the objects of the Act. In particular, the creating of such an award will establish an appropriate award coverage and provide a safety net of fair and minimum wages and conditions of employment.

PN67

Accordingly I will make an award to be known as the National Electrical, Electronic, Communications Contracting Industry (Roping-in No 2) Award 2004. The parties and persons bound will be the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Industry Group Training of 20 Queens Road, Melbourne. The award will come into effect from the first full pay period to commence on or after today's date and shall remain in force for a period of six months. These proceedings will stand adjourned. Thank you.

ADJOURNED INDEFINITELY [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 CORRESPONDENCE DATED 06/04/2004 FROM CEPU TO AIG AND NGT PN17
EXHIBIT #C2 BUNDLE OF POSTAL RECEIPTS PN25