AG2004/5214, Transcript of Proceedings [2004] AIRCTrans 2875 (26 July 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 7909

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2004/5214

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Newnham Earthmoving Pty Ltd for certification
of the Newnham Earthmoving Agreement 2004

MELBOURNE

1.41 PM, THURSDAY, 15 JULY 2004

PN1

MR B. SHAW: I seek leave to appear for the applicant company in this matter.

PN2

MR G. BORENSTEIN: I have got no instructions in respect of this matter, your Honour. I would expect if I did have instruction they would be asking to intervene, I would have thought, but - - -

PN3

THE VICE PRESIDENT: Since you don't - - -

PN4

MR BORENSTEIN: I don't have instructions.

PN5

THE VICE PRESIDENT: No. Well, this matter has had a long and checkered history.

PN6

MR SHAW: Yes, your Honour. The same agreement has been before the Commission before, as you will recall. On that occasion there were interventions sought by the AWU and the CFMEU which weren't opposed. However, it was found that the employer statutory declaration was defective, and I undertook to prepare another one and distribute it to the unions. In fact, I did prepare another one but when I received the 174LK(4) notice, or a copy of it, it was also defective so I advised the client they had to start again, which they have done.

PN7

I did send, although it probably wasn't covered by my undertaking, given it is in your application. I did send copies of all of the relevant documentation to both unions so that they could be informed. I in fact spoke to Mr Maddison yesterday and at that stage he was of the view that he probably wouldn't be appearing anyway, which is probably the reason Mr Borenstein doesn't have any instructions. The - - -

PN8

THE VICE PRESIDENT: Do you have a copy of the LK(4) notice?

PN9

MR SHAW: It isn't there this time. It is - - -

PN10

THE VICE PRESIDENT: Is it - I see, sorry.

PN11

MR SHAW: It should be Exhibit D - - -

PN12

THE VICE PRESIDENT: It is marked as DCN1. Is that right?

PN13

MR SHAW: DCN1, yes.

PN14

THE VICE PRESIDENT: Yes. Just bear with me for a moment. Just run through the relevant statutory test questions before dealing with the LK(4) issue. I note that the application states it is being made under division 2 of Part VIB.

PN15

MR SHAW: That is correct, your Honour.

PN16

THE VICE PRESIDENT: And the application was lodged within the 21 day time period and was approved on 17 June and lodged on the 24th. Is that right?

PN17

MR SHAW: That is correct, yes.

PN18

THE VICE PRESIDENT: Is the employer party to the agreement a constitutional corporation within the meaning of the Act?

PN19

MR SHAW: Yes, it is.

PN20

THE VICE PRESIDENT: I note that a written copy of the agreement has been submitted for certification. Is the agreement about matters pertaining to the employment relationship?

PN21

MR SHAW: It is.

PN22

THE VICE PRESIDENT: Is the agreement between all persons who at any time when the agreement is in operation are employed in a single business of the employer and whose employment is subject to the agreement?

PN23

MR SHAW: Yes, it is, your Honour.

PN24

THE VICE PRESIDENT: The relevant award is the AWU Construction and Maintenance Award. Is that right?

PN25

MR SHAW: That is correct, yes.

PN26

THE VICE PRESIDENT: And has that award been varied for the 2004 Safety Net Review decision. Would that affect the no disadvantage test in relation to this issue?

PN27

MR SHAW: It wouldn't affect the no disadvantage tests, if it has.

PN28

THE VICE PRESIDENT: Why not?

PN29

MR SHAW: The rates are sufficient to cover that.

PN30

THE VICE PRESIDENT: And still with the LK(4) notice, can I get you to encourage your clients to - it is a lot easier for everyone if they actually follow what is set out in LK(4), rather than trying to run a commentary on it, as has been the case in this instance.

PN31

MR SHAW: Well, that may or may not be so, but the actual operative prescriptive parts of the document do follow LK(4).

PN32

THE VICE PRESIDENT: Yes.

PN33

MR SHAW: I think exactly, certainly in intent, the fourth paragraph is fairly clear.

PN34

THE VICE PRESIDENT: I take it no request was received.

PN35

MR SHAW: No request was received.

PN36

THE VICE PRESIDENT: And the agreement was approved on 17 June. Is that right?

PN37

MR SHAW: It was.

PN38

THE VICE PRESIDENT: And how was that approval arrived at?

PN39

MR SHAW: The approval was by way of a vote of the employees.

PN40

THE VICE PRESIDENT: And were all the employees provided with an opportunity to vote?

PN41

MR SHAW: There were. There were 26 that are to be covered by the agreement. I am not sure if you have got the same file as you had before, but you will recall that it was 38 on the last statutory declaration.

PN42

THE VICE PRESIDENT: Yes.

PN43

MR SHAW: One was blank, one said 38. There is in fact not 12 have been sacked. There is 12 that aren't - are administrative, rather, employees and aren't covered by the agreement. The first one was incorrect.

PN44

THE VICE PRESIDENT: And can you explain how the wage increases operate, and how the annualised salary provision operates?

PN45

MR SHAW: Your Honour, the - it is very complicated, if you - it appears very complicated. However, if you

PN46

THE VICE PRESIDENT: Certainly does.

PN47

MR SHAW: It had me flummoxed, but I think if you read the answer to question 6.4 where it deals with clause 20 it sums it up as briefly as is possible. It is an annualised rate which enables employees to work overtime during ..... good weather for earthmoving, and receive the annualised rate of pay. But if they lose hours in, well, weather like I believe we have been having in Melbourne. I have been blissfully, blessedly away from the place, but they in fact still get paid the annualised rate. The annualised rate takes into account all of the matters that are listed in the agreement, but once they exceed those - that allowance of annual hours, which is ordinary rates, ordinary time plus allowance for overtime, every hour they work thereafter they are paid a penalty rate.

PN48

THE VICE PRESIDENT: Just take me through that again. Which clause of the agreement - it is set out in the attachment.

PN49

MR SHAW: It is clause 20.

PN50

THE VICE PRESIDENT: Yes. Well, doesn't it depend on the total number of hours in the annualised period?

PN51

MR SHAW: Well, the annualised rate is worked out on the hours of 2233, and it is - - -

PN52

THE VICE PRESIDENT: Well, except that (d)(i) will be - it says it will be agreed between the parties.

PN53

MR SHAW: Well, that is true for subsequent years. That is correct, and you will see the annualised period is agreed in the first year to be 2233. On my instructions that is the figure that is - has been taken since the agreement first came - was first certified two agreements ago and will continue. It is something that has to be done by agreement, not by the election of the employer, so if the employees didn't like the - if the employer attempted to reduce it and they didn't like it, then there is the disputes resolution procedure available.

PN54

THE VICE PRESIDENT: And when you go to page 16 of the agreement, this sets out - it talks about the annualised rate, 2233 hours. So that is what the employees are paid.

PN55

MR SHAW: Yes.

PN56

THE VICE PRESIDENT: And if they work beyond 2233 hours they are paid overtime. Is that right?

PN57

MR SHAW: Well, no. That - they are paid for 2819.8 hours, because they are paid - so a certain number of those 2233 hours are calculated at overtime rates. So, in fact, they get what amounts to an extra allowance of - - -

PN58

THE VICE PRESIDENT: Well, except that the 10 public holidays - - -

PN59

MR SHAW: Yes.

PN60

THE VICE PRESIDENT: - - - are paid as 76 hours.

PN61

MR SHAW: That is true.

PN62

THE VICE PRESIDENT: They are not paid at the overtime rate.

PN63

MR SHAW: That is correct, yes.

PN64

THE VICE PRESIDENT: Or the penalty rate for overtime work.

PN65

MR SHAW: Yes.

PN66

THE VICE PRESIDENT: For public holiday work. And that the agreement contains a dispute settlement clause.

PN67

MR SHAW: It does.

PN68

THE VICE PRESIDENT: And provides a nominal expiry date, being 22 March 2007.

PN69

MR SHAW: Yes, your Honour.

PN70

THE VICE PRESIDENT: In relation to termination of employment, are any provisions of the agreement inconsistent with a provision of division 3 of Part VIA - - -

PN71

MR SHAW: No, they are not.

PN72

THE VICE PRESIDENT: - - - an order by the Commission under that division, or any injunction granted or order made by a Court under that division?

PN73

MR SHAW: No, they are not, your Honour.

PN74

THE VICE PRESIDENT: Does the agreement contain any objectionable provisions within the meaning of section 170LU(2)A?

PN75

MR SHAW: No, it doesn't.

PN76

THE VICE PRESIDENT: Are there any matters under section 170LU(3) dealing with negotiating conduct which would lead me to refuse to certify the agreement?

PN77

MR SHAW: No, your Honour.

PN78

THE VICE PRESIDENT: Do any provisions of the agreement discriminate against an employee whose employment will be subject to it because of, or for reasons including, race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN79

MR SHAW: No, your Honour.

PN80

THE VICE PRESIDENT: All right. Is there anything else you wanted to say?

PN81

MR SHAW: No, your Honour.

PN82

THE VICE PRESIDENT: Right. I propose to reserve my decision in respect of this matter to give further consideration to the application of the no disadvantage test. If I have any further questions in that regard I will list it for telephone hearing and raise them with you.

ADJOURNED INDEFINITELY [1.54pm]