AG2004/5280, Transcript of Proceedings [2004] AIRCTrans 2841 (22 July 2004)

AUSCRIPT PTY LTD
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ADMINISTRATOR APPOINTED

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TRANSCRIPT OF PROCEEDINGS

O/N 1954

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5280

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by R.A. Jordan Pty Limited and Another for
certification of the R.A. Jordan Pty Limited
Onsite Construction Enterprise Agreement 2004

ADELAIDE

9.18 AM, TUESDAY, 13 JULY 2004

PN1

MR M. HOWARD: I appear for R.A. Jordan Proprietary Limited.

PN2

MR N. LEAN: I appear for the CEPU Plumbing Division. With me is MR D. BUCHANAN from the CEPU Plumbing Division as well.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read both the statutory declarations and the agreement in this matter. The initial question that arises is that it appears to me that the vote in this matter occurred on 28 May, but the application was not filed until 24 June. That would make it outside of the time frame set within section 170LM of the Act. Mr Howard, can I take it that the parties want that time frame extended and if so, can you advise me as to whether or not there were any changes to the workforce over that time in question, together for the reason for the delay?

PN4

MR HOWARD: We would be seeking an extension of time, your Honour under section 111 of the Act. My understanding is the workforce did not change during that period of time and I'm not sure as to what the actual delay was.

PN5

THE SENIOR DEPUTY PRESIDENT: I see. Mr Lean, can you help me in that regard?

PN6

MR LEAN: It is my belief the workforce has not changed in that time and I believe the possible delay was that I think someone was ill, possibly the employer, I'm not sure, and there's a problem with that.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. On the basis there were no changes to the workforce I will use the discretion provided in section 111(1)(r) of the Act to extend the time frame for lodgement of the application. Mr Howard, the second question that arises as to the process that was followed in this matter goes to whether or not you can advise me of the date upon which employees actually had the final copy of the agreement prior to voting.

PN8

MR HOWARD: I can assure you, your Honour, this document was not signed until at least the 15th day after the final document was given to the employees concerned. The situation had been, they had a number of meetings of the employees as stated in the statutory declarations and as a result of that, the situation was that - and it was on my advice that the document should not be signed until at least 15 days after, and I can actually guarantee the Commission that was the case.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, I'm so much worried about when the document was signed. The issue goes more to how long was it before 28 May that employees had the final version of the agreement?

PN10

MR HOWARD: I'm just having a look your Honour, because there's been a number of versions of the agreement, but I know the agreement was that they had the document at least 15 days before the current one was signed. That document was actually, believe it or not, revision 10, so it had 10 documents leading into that - - -

PN11

THE SENIOR DEPUTY PRESIDENT: See, the Act is not specific about the time prior to signature. It is specific about the time prior to the employees approving the agreement that was made.

PN12

MR HOWARD: Yes. Certainly I can assure the Commission that the people concerned who signed this document had the document at least 15 days prior to the meeting taking place and approval of the document.

PN13

THE SENIOR DEPUTY PRESIDENT: I see. Mr Lean, can you shed any light on that matter?

PN14

MR LEAN: No, I wasn't that involved in the document at the time. That person is no longer working for us, but I believe I would concur with what Maurie is saying.

PN15

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Now, Mr Howard, if I can then take you to the agreement itself and the questions that I have obviously don't invite either party to redraft the document. They simply go to clarifying certain issues that I will need to take into account in the matter. Clause 1.6, to what extent are employees of R A Jordan Proprietary Limited performing work which is not covered by this agreement?

PN16

MR HOWARD: I don't believe that there would be employees not performing work outside this agreement. The definition of on site construction work in the awards cover maintenance work carried out by plumbing contractors.

PN17

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

PN18

MR HOWARD: It will, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Clause 3.10 relates to redundancy with particular reference to 3.10.2 and the references to the Plumbing Trade Southern States Construction Award. What is the intention of the parties if that award redundancy provision were to change over the life of this agreement? That question assumes some particular significance, given the recent change in the Commission's test case provisions relative to redundancy.

PN20

MR HOWARD: I understand that, your Honour. The $40 per week would probably be sufficient, even having due regard to the changes in the test case under the termination change of redundancy decision of the Full Bench. Of course at this point in time, the building industry awards have not been varied, nor has there been an application to vary those awards and it may be that they do not follow exactly the TCR decision. They didn't the first time round, and they may not this time round.

PN21

As the emphasis being on long service leave, it is a factor in this industry that persons in the industry have portable long service leave irrespective of how long they have been working in the industry. So the 7 years, well the Commission relied on the Federal prescription of 10 and 15, whereas this State it is 7 and 10, but in the building industry it is an ongoing long service leave situation where you pay the levy and the long service leave is not lost on redundancy. So it may be that the building industry awards may come up with a slight variance to that of the TCR decision of the Full Bench, to compensate for what actually happens in the building construction industry.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, but the question remains if the award is varied in any way do the parties intend that that redundancy entitlement set out in clause 3.10.2 would also be varied?

PN23

MR HOWARD: Well, it would be looked at to see if it requires variation, your Honour, because the $40 a week would be in excess even under the current prescription that has been inserted into the metals sum under the latest TCR. That $40 a week would actually be enough compensation.

PN24

THE SENIOR DEPUTY PRESIDENT: So should I understand then that the intention of the parties is that in the event that the Plumbing Trades Southern States Construction Award of 1999 was to be varied with regard to redundancy, the parties would review the redundancy entitlements set out in 3.10.2 to ensure that it at least accorded with the award minima?

PN25

MR HOWARD: That would be correct, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Lean?

PN27

MR LEAN: If I could, Commissioner, I might while you are on transcript take note that that clause, the redundancy clause 3.10, the whole clause was voted on a secret ballot and I might add they were parties to the EBA at the request of our membership. We were not in favour of that clause, the union itself, but the membership voted in favour of it, and we bowed to the wishes of our membership.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, but you are not disagreeing with anything Mr Howard says?

PN29

MR LEAN: I would have thought that the redundancy clause in there, 3.10.2, would have been, even if there is a variation to the award in the future, would have referred back to the award as it stood at today's date on redundancy.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, but what I understand Mr Howard is telling me is that if the award is varied in the future, because the clause references in two stages that Plumbing Trades Southern States Construction Award of 1999, the parties would have regard to that award as it might vary to ensure that employees received at least the award minimums with respect to redundancy.

PN31

MR LEAN: We would expect award minimum, yes.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, and I'm understanding that you are in agreement with that approach.

PN33

MR LEAN: As my membership wished me to agree to that, I would have to.

PN34

THE SENIOR DEPUTY PRESIDENT: All right.

PN35

MR LEAN: Thank you.

PN36

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

PN37

MR HOWARD: It is, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Clause 5.3 and 5.4 relate to rest periods and meal breaks. To some extent they overlap with the provisions of clause 3.11.12. Should I understand that the parties intend to have regard to both provisions, and simply apply the more detailed prescriptions?

PN39

MR HOWARD: That is correct, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Clause 5.6 relates to the 36-hour week. There are a couple of questions that I have here. First of all, should I understand that the parties have reached agreement and the effect of that agreement relative to the 36-hour week is that employees can effectively choose whether to take the additional rostered days off associated with the 36-hour week, but if they choose to do so, they will not be paid for those days?

PN41

MR HOWARD: That is correct, your Honour, but it is my understanding that the CEPU Plumbing Division is not looking for a 36-hour week prior to 1 January 2006. This document is in effect until 31 January 2006. If a 36-hour week was to be introduced into the plumbing sector of the building construction industry from 1 January 2006, as at 31 January 2006 there would only be 1 day available on a rostered day-off basis, because that is all that employees would accrue in that last month of this agreement. So even if the 36-hour week was effective from 1 January 2006, we are talking about 1 day only as a rostered day off.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, I'm constrained to look fundamentally at the provisions of clause 5.6 and as I'm reading 5.6 it establishes the potential for employees to take additional rostered days off to accord with some schedule that might apply on either specific sites or across the industry so as to reflect the 36-hour week, but they would not be paid for those additional days off.

PN43

MR HOWARD: That is correct, that is the understanding of the clause.

PN44

THE SENIOR DEPUTY PRESIDENT: I'm also reading clause 5.6 on the basis that whatever arrangements the union and your association or any other group have reached are between the union and that association. The words here appear to be quite specific in that the agreement does not recognise the 36-hour week, other than the capacity for employees to take that unpaid time off.

PN45

MR HOWARD: That is correct, that is correct.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 6.7 relates to picnic days - it is on page 24. First of all, should I understand that any employee can attend a picnic day, and as such, any employee, irrespective of their union membership, can accumulate the entitlement to payment for that day?

PN47

MR HOWARD: That is correct.

PN48

THE SENIOR DEPUTY PRESIDENT: And secondly, with respect to 6.7.2, should I understand that that provision refers to the possibility that future certified agreements may adopt a 36-hour week?

PN49

MR HOWARD: That is correct, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: But it is obviously subject to negotiations between the parties.

PN51

MR HOWARD: Yes, that is correct, your Honour, yes.

PN52

THE SENIOR DEPUTY PRESIDENT: 8.2 relates to the development of a training program. Can I take it that will occur over the life of the agreement?

PN53

MR HOWARD: It will, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Howard.

PN55

MR HOWARD: Thank you, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Lean, should I understand that you are in agreement with all of Mr Howard's responses?

PN57

MR LEAN: I'm in agreeance with the responses on the - along with the picnic days 6.7.2. I mean it refers to future EBAs but we will see what happens when future EBAs come up.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, well that is a subject for negotiation between the parties.

PN59

MR LEAN: That is something for crystal ball and stuff.

PN60

THE SENIOR DEPUTY PRESIDENT: The provisions of this agreement aren't binding on future agreements.

PN61

MR LEAN: No, we wouldn't see that.

PN62

THE SENIOR DEPUTY PRESIDENT: All right, thank you. On the basis of the information provided to me, I'm satisfied the agreement was reached through a process consistent with that set out in the Act. The agreement itself meets the requirements set out in sections 170LT and 170LU of the Act. I will certify the agreement with effect from today, the certificate giving effect to that certification will be forwarded out to the parties within the next few days. That certificate will identify the various clauses about which I've sought clarification. It will not detail the responses that I have been given, because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope it works well for both parties. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [9.36am]