AG2004/5277, Transcript of Proceedings [2004] AIRCTrans 2771 (19 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1941
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5277

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Dayproof Group Pty Limited and Another
for certification of the Dayproof Group Pty
Ltd Enterprise Agreement 2004

ADELAIDE

3.02 PM, THURSDAY, 8 JULY 2004

PN1

MR M. HOWARD: I appear on behalf of Dayproof Group Proprietary Limited, and with me, is MR DAVID HYDE, on behalf of the employer, and MR ANDREW HEMSLEY, on behalf of the employees.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Howard, I can advise you that I have read both the agreement and the statutory declarations. The first matter that I would like to deal with is whether or not you could provide to me a copy of the employer's notice of intention.

PN3

MR HOWARD: Your Honour, I will provide you with a copy of the letters addressed to Mr Andrew Hemsley and Mr Richard Winder, the two employees concerned, dated 24 May 2004.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #D1 LETTERS TO MR A. HEMSLEY AND MR R. WINDER DATED 24/05/2004

PN5

THE SENIOR DEPUTY PRESIDENT: Just bear with me for one moment, please, Mr Howard. Now, the letters that I have marked as D1, Mr Howard, refer to a copy of the proposed agreement being attached. Should I understand that agreement is the document that I have before me?

PN6

MR HOWARD: That is correct, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Hemsley - have I pronounced your name correctly?

PN8

MR HEMSLEY: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Hemsley, have you reached some understanding with your fellow employee, Mr Winder, such that you represented him in the negotiations about the agreement, or did the two of you negotiate the agreement?

PN10

MR HEMSLEY: We were both party to two meetings and had one meeting just between ourselves.

PN11

THE SENIOR DEPUTY PRESIDENT: I see and why is it you are here today and not Mr Winder?

PN12

MR HEMSLEY: It was because I have been there the longest. It was just decided by us, Richard and I.

PN13

THE SENIOR DEPUTY PRESIDENT: I see. So the two of you talked about it and decided that you would win the prize.

PN14

MR HEMSLEY: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: I see and can you confirm to me that shortly after 24 May you received the letter, a copy of which Mr Howard has given to me?

PN16

MR HEMSLEY: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: And that the document wasn't changed after that date?

PN18

MR HEMSLEY: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: And that to the best of your knowledge, Mr Winder and yourself did not seek to have a union involved in negotiating the agreement?

PN20

MR HEMSLEY: No.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Hemsley, I am going to ask Mr Howard a few questions about the agreement. My questions don't invite him to rewrite the document that the two of you voted on. They go to looking at factors that I will need to take into account in considering the application and to matters that I would rather clarify now than regret that I didn't do so at a later stage. I note that you don't appear to have a copy of the agreement in front of you and I am going to loan you one from my file. Our system dictates that we are given numerous copies and I often wonder what it is we do with them.

PN22

Mr Hemsley, if you have got anything to add to Mr Howard's responses, please feel free to comment. If you don't comment I will take it that you are in agreement with Mr Howard. Mr Howard, can I take you to clause 1.6? Should I understand then that the work which might be undertaken by Dayproof Group Proprietary Limited falls into two general categories in that there is work within the commercial or industrial sector of the industry and work which is involved in the cottage sector, or maintenance function?

PN23

MR HOWARD: That is correct, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: That this agreement has only got application to the work within the commercial or industrial sector?

PN25

MR HOWARD: That is correct, your Honour, although I would say at 4.11, the wage rate reflects commercial work and then reflects a cottage industry rate, so that there is an understanding of what the rates of pay are for each category.

PN26

THE SENIOR DEPUTY PRESIDENT: I see. The same employees would be involved in both categories of work.

PN27

MR HOWARD: They would be.

PN28

THE SENIOR DEPUTY PRESIDENT: With what frequency might they change from one category to another?

PN29

MR HOWARD: I am not sure of the frequency, your Honour. I guess it would depend on the size of the commercial/industrial job that you may have. I do recall as an instance, this company working on the Convention Centre and the workforce at that time - and I may be corrected here - went out to something like 6 or 7 employees because of the size and nature of the work required to be performed. So it could be a fluctuation, depending on the contracts that the company wins. As you would realise, a lot of the work is by tender, particularly commercial/industrial work, in that it could depend on the amounts of the job available at the time in any part of the industry and what work that they would win. I understand probably - unless Mr Hyde corrects me - the majority of the work is probably done on commercial/industrial sites.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. You see, what I am wrestling with is how this particular provision relates to the requirements that I have regard to section 170LI of the Act. Unless you are very good, you might need to look up your Act to answer my question. Section 170LI(1)?

PN31

MR HOWARD: I've got it. Nature of Agreement, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. LI(1) requires that there must be an agreement in writing which clearly exists here.

PN33

MR HOWARD: That is right.

PN34

THE SENIOR DEPUTY PRESIDENT: But about matters relating to:

PN35

The relationship between the employer who is a constitutional corporation -

PN36

- and I am satisfied in that regard:

PN37

- and all persons who at any time in the agreement is in operation are employed in a single business or part of a single business of the employer.

PN38

Now, it is that concept of the part of the single business or the single business that I'm seeking clarification of, in that if I'm understanding the provisions of clause 1.6 correctly, the agreement has application to the business of the day proof group but only when employees are working on certain activities.

PN39

MR HOWARD: That is correct, your Honour. In the commercial and industrial section of the industry.

PN40

THE SENIOR DEPUTY PRESIDENT: As a further example of the issue I'm wrestling with, how would that work in practice in terms of employees who might - say for 4 days of the week, in a given week, be working on a commercial or industrial project but for the last day be working on a cottage-type project. Would all of the obligations set out in the agreement then still have application on a pro rata basis or how would the system operate?

PN41

MR HYDE: Can I?

PN42

THE SENIOR DEPUTY PRESIDENT: You certainly can. Before you do answer, Mr Hyde, if you want to have a brief word to Mr Howard feel free to do so. I won't adjourn the matter but if you want to put your heads together before you respond feel free to do so.

PN43

MR HOWARD: My understanding is, your Honour, the only things it would change in respect to a circumstance, are the rates of pay. The long service leave, of course, is statutory obligations and any of the other payments such as the travelling allowance would be payable irrespective of where they were because that is also an element of normal employment in the industry. These are the wage rates that would fluctuate between industrial and commercial work and cottage work.

PN44

THE SENIOR DEPUTY PRESIDENT: Can I turn that around another way and ask them whether you are able to give me an undertaking in the following terms? Notwithstanding that the agreement has application only when employees are engaged in the commercial or industrial sector of the industry, the provisions of the agreement will be applied irrespective of the sector of the industry in which employees are engaged with the exception that wage rates will vary according to the different sectors.

PN45

MR HOWARD: That is my understanding, your Honour, that is correct.

PN46

THE SENIOR DEPUTY PRESIDENT: You can give me that undertaking?

PN47

MR HOWARD: I can give you that undertaking.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.9 references a work practices review. Should I understand that will occur over the life of the agreement?

PN49

MR HOWARD: That is correct, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: The clause 3.10.2 references the redundancy funds. It refers to all eligible employees. How should I understand the term "eligible employees"?

PN51

MR HOWARD: The circumstance of eligible employees under the Building and Redundancy Trust Fund are full-time employees, part-time employees but excludes casual employees.

PN52

THE SENIOR DEPUTY PRESIDENT: So it includes daily hire employees?

PN53

MR HOWARD: It goes to daily hire employees.

PN54

THE SENIOR DEPUTY PRESIDENT: Clause 3.11 refers to the company's occupational health and safety welfare policy as amended. Do I understand that policy is a documented policy and that it is readily available to employees?

PN55

MR HOWARD: That is my understanding, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Clause 5.2.1 relates to rostered days off.

PN57

MR HOWARD: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: That clauses talks of the general observance of the Building and Construction Industry days off. I've read in various agreements of provisions that allow for an increased number of rostered days off. As this agreement is framed around a 38-hour week, should I understand that observance of the Building and Construction Industry rostered days off relates to the rostered days off reflecting the 38-hour week?

PN59

MR HOWARD: That is correct, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: In relation to the provisions of clauses 5.3 and 5.4, I note they appear to canvass issues already covered in 3.11.9. Should I read them both of those clauses together on the basis of the parties intention to adopt whichever is the more detailed?

PN61

MR HOWARD: That is correct, Your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 relates to the development of a training program. Should I understand that will occur over the life of the agreement?

PN63

MR HOWARD: Over the life of the agreement, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 refers to the industry agreed procedure on inclement weather.

PN65

Should I understand that that reflects the agreement reached between the Master Builders Association and the CFMEU but more particularly it is an agreement which is documented in coloured brochures which are readily available wherever employees might be working?

PN66

MR HOWARD: That is correct, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Howard. Mr Hemsley, do you want to add or detract from anything Mr Howard said or can I take it that you are in agreement with them?

PN68

MR HEMSLEY: In agreement.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me today and the information contained in the statutory declarations together with the undertaking provided by Mr Howard, I'm satisfied that this agreement was reached through a process consistent with that set out in section 170LK of the Act. I am similarly satisfied the agreement meets the requirements of the no disadvantage test. That it is of a duration envisaged by the Act and contains the necessary dispute resolution provisions.

PN70

On the basis of the undertaking given to me I am satisfied that the agreement meets the necessary requirements set out in section 170LU of the Act. I will certify the agreement with effect from today. The certificate will be sent out to the parties within the next few days. That certificate will identify the undertaking that has been given to me and it will also list the various clauses about which I sought clarification. It will not detail the answers that I've been given because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employees and the employer. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [3.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 LETTERS TO MR A. HEMSLEY AND MR R. WINDER DATED 24/05/2004 PN5