AG2004/2992, Transcript of Proceedings [2004] AIRCTrans 2476 (2 July 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 1870

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/2992

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Nilsen Electric (SA) Pty Limited and
Another for certification of the Nilsen Electric
(SA) Pty Limited Engineering Services
Division Enterprise Agreement 2004-2005

ADELAIDE

10.52 AM, TUESDAY, 22 JUNE 2004

PN1

MR S. PRIEST: I appear for the company in this matter.

PN2

MR J. WILDER: I appear on behalf of the CEPU Electrical Division.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read the statutory declarations and the agreement. The immediate question that arises goes to whether or not you can advise me, Mr Priest, of the date upon which all the employees had the final version of the document?

PN4

MR PRIEST: Sir, whilst I wish to be honest with you, I don't know the exact date the document was given. Obviously the front cover here, 21 May, I believe is more than 14 or more days prior to the end. They were given the document, as I oversaw the procedure and made sure that it was clearly understood by the management team at Nilsens that they needed to give a clear 14 days between the final document and the vote. The 21 May would give, I think, 14 days exactly, is that, on my calculations?

PN5

THE SENIOR DEPUTY PRESIDENT: That is part of the question, Mr Priest. Would you be able to provide that information to me within the next few days?

PN6

MR PRIEST: Absolutely, sir, yes.

PN7

THE SENIOR DEPUTY PRESIDENT: You see, the issue arises as to first of all whether it was less than 14 days. Secondly, if it was exactly 14 days, then the parties might need to have another vote on the document as it stands.

PN8

MR PRIEST: As it stands, yes, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Or alternatively, repeat the process. Mr Wilder, are you able to help us in this regard or have you been thrown this matter at reasonably short notice?

PN10

MR WILDER: Yes, unfortunately I have been thrown this matter at short notice.

PN11

THE SENIOR DEPUTY PRESIDENT: That seems to be your lot in life in coming here, Mr Wilder.

PN12

MR WILDER: Yes, it is getting that way, yes, sir. As far as I am aware, the information I have, that everything was above board and everything complied with the Act as far as - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, look, I am not suggesting the parties set out with any intention other than to do the right thing in this matter. It is simply the case that that 14-day - 14 clear day - provision must in the light of decisions of the Full Bench, be seen as a mandatory provision.

PN14

MR WILDER: Yes, I understand that.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Priest, I will leave that question with you to clarify.

PN16

MR PRIEST: Yes, certainly.

PN17

THE SENIOR DEPUTY PRESIDENT: I suspect that you would be well aware that if your investigations disclosed a problem, then you might need to sit down with Mr Wilder or someone else from the union and talk about how you are going to resolve the problem.

PN18

MR PRIEST: Yes, certainly.

PN19

THE SENIOR DEPUTY PRESIDENT: I would then look for some advice to inform me of what it was the parties proposed to do.

PN20

MR PRIEST: Sure.

PN21

THE SENIOR DEPUTY PRESIDENT: Can I then take you to the agreement itself? And once again my questions don't invite either party to rewrite the document, they simply go toward clarifying issues that I need to take into account. The provisions of clause 3.5 are drafted so as to require some clarification on my part. Should I understand that the intention of the parties is that this agreement will in effect, apply to all of Nilsen Electric Engineering Services Division employees wherever they might be employed, and that the only time this agreement would effectively be replaced would be if there was a certified agreement governing a particular site or project which incorporated Nilsen's respondency, is that the case?

PN22

MR PRIEST: That is the case, yes.

PN23

THE SENIOR DEPUTY PRESIDENT: In that case, the specific, or site-specific agreement would apply in lieu of this one?

PN24

MR PRIEST: That is correct.

PN25

THE SENIOR DEPUTY PRESIDENT: Clause 7 references the Electrical Contracting Industry Award of 1992. Now that is not the award that was nominated as the so-called parent award.

PN26

MR PRIEST: No, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: So the parties intend to pick up a set of competency standards and a classification structure drawn from that Electrical Contracting Industry Award of 1992?

PN28

MR PRIEST: That is correct.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 3.4 references pyramid sub-contracting. Should I take it that this clause shouldn't be read in any way as representing an obligation on a party other than the parties to this agreement?

PN30

MR PRIEST: Yes, sir.

PN31

THE SENIOR DEPUTY PRESIDENT: Clause 13.6 references quality assurance program. Is that a documented program? And if so, is it readily available to employees and may it be changed over the life of the agreement?

PN32

MR PRIEST: Yes, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 14.2 is a component of the dispute settlement procedure with particular reference to 14.2.5 or 4 and 5. Should I understand that if an employee was not a member of the CEPU or possibly even not a member of any union, there is the capacity for that employee to be represented by a person or organisation of their choice?

PN34

MR PRIEST: That is correct.

PN35

THE SENIOR DEPUTY PRESIDENT: Clause 16 refers to occupational health and safety. It refers to the company's occupational health and safety directions and policies. Should I take it those policies are documented, that they are readily available to employees and they may be changed over the life of the agreement?

PN36

MR PRIEST: Yes, sir.

PN37

THE SENIOR DEPUTY PRESIDENT: 16.8.2 references the green card. If an employee does not achieve or attain that green card certification, should I understand that their employment is at risk or their continued employment is at risk as a recently inducted employee?

PN38

MR PRIEST: Sir, the green card has been inserted in there I guess as a prelude to work that the Division would like to enter into in the future as it expands and delves into new markets. Sir, the green card will be only required by employees who are going to work in that area. Whilst it would be desirable for all employees to have the green card, I would be hesitant to suggest that not achieving or attaining that green card would pose a serious threat to the employment of the persons under this agreement.

PN39

THE SENIOR DEPUTY PRESIDENT: So what happens if someone - if a divisional tradesperson does not attain the green card?

PN40

MR PRIEST: They will obviously been given more than one opportunity to do this, sir, and I think Mr Wilder can attest to the fact that it is a relatively straightforward - a green card is a straightforward thing to achieve. So it is not envisaged that anyone would not attain that but if they didn't then I guess in the long term, it may prove a stumbling block to continued employment but there is hope with anything.

PN41

THE SENIOR DEPUTY PRESIDENT: Clause 17.2 references the development of an appropriate human resource information system. Is that something that is going to occur over the life of the agreement or is there a more specific time frame?

PN42

MR PRIEST: There's not a more specific time frame, sir. It is something we develop over the life.

PN43

THE SENIOR DEPUTY PRESIDENT: Clause 18.1, on page 14, refers to the ACTU 12-hour shifts code of conduct. Is that code a code which is available to employees on request, and should I understand that the parties intend to adopt that code in whatever form it might exist in, in the future?

PN44

MR PRIEST: Yes, sir.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 19.3 relates to extreme hot weather. If I can take you to the last step in that process, which references clause 17.2.1. Do you mean to reference clause 17.2.1?

PN46

MR PRIEST: The document means to reference 19.2.1, but if you notice there on page 16, 19.2.1 is also erroneously numbered 17.2.1. It is clearly understood by the parties that the payment for lost time will be as per those provisions contained there.

PN47

THE SENIOR DEPUTY PRESIDENT: All right, thank you. It has been a compensating error, has it?

PN48

MR PRIEST: Yes.

PN49

THE SENIOR DEPUTY PRESIDENT: Clause 28.1 talks of compensation for tools. Should I understand that the parties intended to reference appendix B, and/or C?

PN50

MR PRIEST: That is correct.

PN51

THE SENIOR DEPUTY PRESIDENT: Equally, 28.3(a), should the reference be to appendix B, and/or C?

PN52

MR PRIEST: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: In the same way, 28.5, should I understand refer to appendix B or C?

PN54

MR PRIEST: That is correct.

PN55

THE SENIOR DEPUTY PRESIDENT: Now, if I can then take you to clause 29.4, should I read that clause which relates to site allowances in the context of the advice you gave me about clause 3.5, such that it is only referring to agreements that are first of all certified and secondly, to which Nilsen or this division of Nilsen are respondent?

PN56

MR PRIEST: That is right, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: A final question. If I go to the appendix E, being the company motor vehicle agreement, should that reference to clause 29 be a reference to clause 30?

PN58

MR PRIEST: That is right, sir, yes. I apologise.

PN59

THE SENIOR DEPUTY PRESIDENT: Mr Wilder, I take it that you are in agreement with all of Mr Priest's responses to my questions?

PN60

MR WILDER: Yes, sir. The CEPU concurs with the employer.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you. I will advise the parties now that I'm satisfied the agreement itself meets the requirements necessary for certification. It contains the necessary dispute resolution provisions, the operation of which the parties have clarified to me. It is of a duration envisaged by the Act, and it meets the requirements set out in sections 170LT and LU of the Act. Obviously, I'm not in a position to say today that I can certify the agreement.

PN62

If the advice provided to me by the parties about the date upon which the agreement in its final form was given to employees is such that I can conclude that the agreement was reached through a process consistent with that set out in section 170LJ, then I will propose to certify the agreement from the date upon which I receive that advice. The certificate that would then be forwarded out would list the various clauses about which I sought clarification, but you would need to rely on the transcript of these proceedings for reference to the answers.

PN63

If I'm not able to be satisfied that the requisite 14-day notice period was given, and the parties do not chose an alternative choice of action to remedy any such problem, then I would propose to issue a decision that details the reasons upon which I relied for refusing to certify the agreement. I want to make it absolutely clear that if the parties run into a difficulty in terms of the requisite 14-day notice period, I consider the option does exist for them to consider a further vote, provided they don't change the provisions of the agreement to overcome that problem. I will await your advice in that regard. Are you happy with that approach, Mr Priest?

PN64

MR PRIEST: Yes, sir.

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Wilder?

PN66

MR WILDER: Yes, sir.

PN67

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

ADJOURNED INDEFINITELY [11.06am]