AG2004/5292, Transcript of Proceedings [2004] AIRCTrans 2971 (30 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1984
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5292

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by N.E. Enterprises Pty Limited and Another
for certification of N & E Enterprises Pty Limited
trading as Nick's Crane Service/CFMEU
Collective Agreement 2004

ADELAIDE

10.18 AM, WEDNESDAY, 21 JULY 2004

PN1

MR A. HARRIS: I appear on behalf of the CFMEU, and with me is MR C. FENNEY, Operations Manager for the Company.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Harris. I can advise the parties that I have read both the statutory declarations and the agreement in this matter. The initial question that I have about the process that was followed to reach this agreement relates to whether or not you can advise me of the date upon which the final copy of the agreement was given to the employees.

PN3

MR HARRIS: 27 May.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Harris.

PN5

MR HARRIS: Not a problem.

PN6

THE SENIOR DEPUTY PRESIDENT: Now, I do have a number of questions about this agreement. Mr Harris will be well aware that my questions to not invite the parties to rewrite the document, but they do go to my desire to clarify the intention of the parties about a number of issues that I need to take into account. The questions I will address to Mr Harris but, Mr Fenney, please feel free to add or detract from any of Mr Harris' responses, and in a couple of cases I will need to address questions directly to you, Mr Fenney. Mr Harris, can I take you to clause 1.6, the scope and area provision? Is there any work being performed by employees who would normally be covered by the Mobile Crane Hiring Award, which is also subject to another award?

PN7

MR HARRIS: No. The company's main work is crane hiring, so they all come under that, including the riggers.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. Secondly, in terms of clause 1.8, which relates to the relationship to the parent award, should I understand, or I do understand that clause effectively pegs or limits the operation of the Mobile Crane Hiring Award in the form in which it operated as at 31 December 2002?

PN9

MR HARRIS: That is correct, Commissioner. It just covers us with a cover clause, particularly shop stewards.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I will come back to that a little later. If I could take the parties to clause 2.3, and in particular 2.3.4. Mr Fenney, are you able to give me advice such that if an employee was not a member of the CFMEU, or possibly not even a member of any union, that they have the capacity to be represented by a union or an organisation of their choice?

PN11

MR FENNEY: Yes, Mr Commissioner, that is correct.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, 2.3.8 envisages that a continuing dispute will be referred to the appropriate Industrial Tribunal. Should I take that as this Commission?

PN13

MR HARRIS: That is correct.

PN14

THE SENIOR DEPUTY PRESIDENT: Am I correct in understanding that the parties would intend this Commission to first of all try to resolve any such dispute by way of conciliation, with arbitration as a last resort?

PN15

MR HARRIS: That is correct.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Fenney, are you in agreement with that?

PN17

MR FENNEY: Yes, we are.

PN18

THE SENIOR DEPUTY PRESIDENT: Clause 2.4 deals with demarcation disputes. First of all, should I understand that that ACTU demarcation disputes procedure is a documented procedure available to employees on request, and that it may be changed over the life of this agreement?

PN19

MR HARRIS: That is true. Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: Secondly, the first paragraph of that clause talks of unions as a pleural: the agreement is binding only on the CFMEU. To the extent then that the agreement in this regard establishes obligations on any other union, there is a significant difficulty. So should I take it that in relation to the demarcation issue, clause 2.4 simply expresses a desire on the part of the CFMEU with respect to other unions, but a commitment on its own part?

PN21

MR HARRIS: That is correct. It always relies on the fact that these other people have commitments to the ACTU and would abide as well, but we can only commit ourselves.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 2.5 deals with union representation. With respect to 2.5.1, Mr Fenney, are you able to give me an undertaking, which is a binding obligation, that all prospective employees will be advised that the issue of whether or not they are a member or not a member of the CFMEU will not be taken into account in any decisions relative to their employment?

PN23

MR FENNEY: Yes, Mr Commissioner. That is already in place when people are employed. They are told they don't have to be in the union, but they are entitled to if they want to be.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, 2.6 deals with union coverage. Depending on the way in which that particular provision was read, it may cause some difficulty in terms of freedom of association provisions. Are you able to give me an undertaking that the CFMEU understands that it does not necessarily have the sole right to represent the industrial interests of its members employed by the company?

PN25

MR HARRIS: No. All we are saying is, as long as the company realises we have the right to represent our members.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. 2.7 deals with WorkCover matters. Am I correct in understanding that whilst these provisions exist, they do not presume to eliminate the primary obligations established under the WorkCover legislation between the employer and the employee?

PN27

MR HARRIS: Yes, that is correct.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.3 deals with supplementary labour. Am I correct, Mr Harris, in understanding that the parties do not intend this provision to be a binding obligation on any employer other than this particular employer?

PN29

MR HARRIS: No. It is only if the company hires people themselves.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions relative to labour hire companies having to be acceptable to all parties to the agreement. Can you advise me there that the issue of union membership would not be taken into account in any regard in those deliberations?

PN31

MR HARRIS: That is correct.

PN32

THE SENIOR DEPUTY PRESIDENT: Now, Mr Harris, if I can then take you to clause 3.5, and I have a series of questions for you in relation to this provision, which relates to redundancy pay. First of all, relative to 3.5.1, should I understand then that the redundancy payments will be in accordance with that 2002 award as it exists as at 31 December 2002?

PN33

MR HARRIS: Yes, because there is no difference in it.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. I will come back to that question in a moment. Secondly, 3.5.2 talks of a bank guarantee. Now, there are a variety of connotations attaching to a bank guarantee. In some cases the words reflect a guarantee provided by the bank which the employer is required to pay for, which asserts that a certain defined amount of money is going to be invariably set aside in order to cover the potential of employer insolvency. In other cases the words "bank guarantee" simply reflect a correspondence from the employer that asserts that there are adequate funds available within the bank to meet redundancy entitlements.

PN35

MR HARRIS: That is, I believe, the process we have followed.

PN36

THE SENIOR DEPUTY PRESIDENT: So it is that second option that the parties are looking at?

PN37

MR HARRIS: Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: Now, clause 3.5.3 talks of the order of retrenchment in accordance with the 1996 award. The reason that I'm asking so many questions about redundancy, Mr Harris, is that I've only recently had a dispute involving another crane hire company that has gone out of business. It involved your union and, as I understand it, some of the employees may well have gone to work for Mr Fenney. The issue that arose in that matter was an assertion by the CFMEU that there were errors in the Mobile Crane Hiring Award with respect to redundancy provisions, and that the union sought that those errors be corrected in the near future, or indicated an intention to seek that they be corrected.

PN39

The alleged errors, and I'm not required to comment on whether or not I believe they are in fact mistakes in the award, or whether they reflect the intention of the parties and the Commission, are said to arise as a result of the award simplification process, and are said to impact on the extent to which notice payments can overlap with redundancy payments, or whether they stand as entirely separate payments. So the over-arching question that I have for you in relation to redundancy pay is that, whilst the parties are here today proposing the certification of an agreement that effectively endorses the award provisions as at December 2002, I am a little uncomfortable as to the extent to which this issue could come back and haunt the parties in the future, and what process they would propose to adopt in the event that it did become an issue in the future?

PN40

MR HARRIS: My belief is that we saw the problems in the new award, that the mistakes were made when they produced the new award to fix up. While this particular paragraph, 3.3, is quoting what we believe and what we felt was correct, is the actual 1996 one.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, but the payments issue is dealt with in 3.5.1, which adopts the provisions of the 2002 award. Now, they are very different provisions.

PN42

MR HARRIS: I know the case you are talking about, and this company has taken on some of those employees. Hopefully if we get through the rest, I will have to come back with you on that with a letter or something saying, you know, exactly how we felt then.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. Bear in mind I'm not inviting you to rewrite the clause or the document, but what I am suggesting is that it might be appropriate for both parties to advise the Commission of the extent to which, if there was an issue in the future about redundancy payments, the Commission is or is not empowered to assist, and if so, in what way, in the resolution of any such issue. Bear in mind also, that once a redundancy is put into effect the jurisdiction of the Commission to be involved in clarifying any such issues is entirely problematical and very doubtful. I'm happy to leave the matter with the parties.

PN44

MR HARRIS: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: It is simply the case that the extent to which the issue has been of such recent debate, means that it would be inappropriate for me to avoid mentioning it to you.

PN46

MR HARRIS: Well, I feel if I, through my office, we write up what we appropriately believe and put it with the employer. So in other words, our both understanding of that first one, and notify you that we've come to agreement of that understanding before anything happens.

PN47

THE SENIOR DEPUTY PRESIDENT: Very well. The provisions of clause 3.6 refer variously to the company's occupational health, safety and welfare policy and to the construction industry drug and alcohol policy. Should I understand those policies are both documented, readily available to employees, and subject to change during the life of this agreement?

PN48

MR HARRIS: That is correct.

PN49

THE SENIOR DEPUTY PRESIDENT: The provisions of clause 4.1 deal with rates of pay, and in that regard, should I understand that if I'm to certify the agreements, the rates that are then applicable are the rates that take effect from 1 July 2004?

PN50

MR HARRIS: Yes. The employees have already received and agree on this one.

PN51

THE SENIOR DEPUTY PRESIDENT: The provisions of clause 4.2 indicate that employees rates of pay will be reviewed and updated as per contract. How should I understand that provision?

PN52

MR FENNEY: Just if I can, Mr Commissioner, is that since this was put in place we no longer have that contract at Moomba and it is now ceased.

PN53

THE SENIOR DEPUTY PRESIDENT: So it is a redundant provision?

PN54

MR FENNEY: It is redundant now, yes.

PN55

THE SENIOR DEPUTY PRESIDENT: Mr Harris, 4.3 talks of a CPI adjustment. Should I understand that the parties intend that this provision be read such that the words "CPI" in fact refer to the amount by which the expense-related allowances in that Mobile Crane Hiring Award are increased each year, and that that review would occur subsequent or shortly after any increases were applied to the Mobile Crane Hiring Award, notwithstanding that the parties don't intend that award to be read in concert with this agreement?

PN56

MR HARRIS: That is right.

PN57

THE SENIOR DEPUTY PRESIDENT: It is a tortuous concept, Mr Harris, but I think I understand what you are saying.

PN58

MR HARRIS: We are fairly confident that the CPIs won't go to a great extent, we hope.

PN59

THE SENIOR DEPUTY PRESIDENT: Now, if I can then take the parties to clause 5, and I should say as an initial comment in this regard, I'm having some difficulty following the entirety of clause 5. First of all, if I look at 5.1, the provision indicates that there will be an average of 38 ordinary hours per week which will be gradually reduced during the life of the agreement to a 36-hour week. It is clear from 4.1 that the 36 hour week appears to have already come into effect. 5.1 refers me to clause 5.3, which does not deal with the 36-hour week, it deals with meal breaks.

PN60

MR HARRIS: Well, I can answer that first - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Perhaps I will park my questions at that point and let you answer that suite of questions.

PN62

MR HARRIS: So shoot that one first - "meal breaks". No, I don't see where the hours of the day come into the meal break.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes. I'm just referring to the initial paragraph in clause 5.1 which says:

PN64

Which will be gradually reduced during the life of this agreement to a 36-hour week, as per clause 5.3.

PN65

MR HARRIS: I would like to find where the - now I see what you are saying. 5.3 is most probably not the correct number, I would say.

PN66

THE SENIOR DEPUTY PRESIDENT: You see, I cannot find anything in clause 5 that talks of the arrangement that the parties intend to implement with respect to the 36-hour week. It is almost as if that relatively common provision has been omitted from the agreement.

PN67

MR HARRIS: Right. Now I'm following where you are, yes. So what you are saying, and I think this is what I'm not seeing, what you are saying is that while the 36-hour week comes into force, where does it come into force in the agreement?

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. It may be that you can say to me that 5.1.3 addresses all of those issues. I simply don't know, and as I'm not the author of the document, I thought it best to ask the experts.

PN69

MR HARRIS: So up in 5 1, that clause should be 5.1.3, as opposed to 5.3.

PN70

THE SENIOR DEPUTY PRESIDENT: I don't know, Mr Harris.

PN71

MR HARRIS: No. Now I can see where I'm going. I couldn't see that myself. Well 5.1.3 is what it is commenting about. So up there in the clause where 5.3, it is only the ones missing. So as of 1.7.04 the parties realise there is a 36-hour week, which is 2 rostered days off per 20-day cycle. So while they still work 8 hours a day, 5 days a week, excluding overtime, that .8 will be taken out of the wages as opposed to .4. That goes back into the wage one at 4.1, that's got that extra proviso in there, and these people would then be entitled to 2 rostered days off in the year actually - in the cycle, sorry.

PN72

One rostered day off will be taken as clause 5.2, which is underneath, the other one will be taken by agreeing. With other agreements that I have come up here with, we are having actual fixed days. The 36 hour, the extra time, there will be no fixed days on this company for the new rostered days off, they will be mutually agreed between the company and the employee. So they will still have the normal rostered day off, 38-hour week one and if that was next Monday so be it, they have it then but the new one for the 36-hour week, there will be no fixed days for that. It will be between the company and the employee when the work situation or whatever happens, the employee will bank them or take them off.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN74

MR FENNEY: Commissioner, if I could just add to that. At the present moment, because we are in the crane hiring no so much as on construction sites, at the moment we have a roster that is agreed to by the parties and we have had that running on the one day and it is not always the construction day down because we are a service industry and we still have to service other people. At the moment there is an existing roster, they have one a month, but now with the 36-hour coming into place they accrue the hours and if they need time off now, whatever day they want, well they sit down and negotiate and we come to an agreement and if they need that day off then that is how they have it. They are quite happy about it, so they bank the hours and they use them through consultation to when they need them.

PN75

THE SENIOR DEPUTY PRESIDENT: Thank you. That then takes me to 5.2 and should I understand with respect to the references to rostered days off in 5.2.1, 5.2.2 and its various sub-groups, the arrangements with respect to rostered days off referenced in that provision relate to what I would call the 38-hour week rostered days off and don't apply to the more flexible arrangements that have been referenced in 5.1.3.

PN76

MR HARRIS: That is correct. It will only be the two parties, not the three parties decide 36-hour, when the men have it.

PN77

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7.1 deals with the fares allowance. Should I understand that with reference to 7.1.1 that the parties intend that provision to mean that the $20 per day fares allowance is payable when employees are employed on work located within a radius of 50 kilometres from the GPO of Adelaide?

PN78

MR FENNEY: That is correct.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7.1.2 refers to the award. Should I understand that that reference is to the Mobile Crane Hiring Award?

PN80

MR HARRIS: Yes.

PN81

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

PN82

MR HARRIS: It is a continuing thing, particularly with modern equipment.

PN83

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 talks of the provisions of the BIRST agreed procedure on inclement weather or extremes of heat. Should I understand that that agreement is summarised in a coloured brochure which is readily available to all the employees wherever they may be working?

PN84

MR HARRIS: That is correct.

PN85

THE SENIOR DEPUTY PRESIDENT: 9.2.4 talks of site allowances and any other over-award payments. Where will I find those site allowances and other over-award payments specified?

PN86

MR HARRIS: Through the BIRST agreement, set sites have a site allowance, so in Nick's crane hiring setup, if they have got a crane all day on a site in the city or wherever we have site allowance, say on Multiplex in Pirie Street and the crane is there working all day, they will get the site allowance the same as other people on that site. But like those people on the site, if they are sent home because of inclement weather or any other reason, but particularly in this case, inclement weather, they don't receive the payment once they have left the job, once they have left the site.

PN87

THE SENIOR DEPUTY PRESIDENT: I see. So that I should understand that the parties intend the rates of pay set out in clause 4 might be increased by the payment of site allowances according to the BIRST scheme as it might exist now, or be revised during the life of the agreement.

PN88

MR HARRIS: If that ties in the builder on that site, the answer is yes, so it can't be in here because the company does not know if it is not working on a particular site. In fact he dropped off a rigger at the site today, so yesterday he didn't know where he was, so it is too hard to define.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MR HARRIS: The BIRST agreement on a site, Hansen and Yuncken etcetera, is easy to define.

PN91

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Fenney, you are in agreement with that response?

PN92

MR FENNEY: Yes, I am.

PN93

THE SENIOR DEPUTY PRESIDENT: And finally, Mr Harris, there's the perennial question, there is a capacity in the signature page for employees' signatures. There are no such signatures. Should I read anything into that? It could just be that no signatures were sought.

PN94

MR HARRIS: I think no signatures were sought because I've got a note here when the men met and they got a couple of stewards that work with them and they were totally satisfied with Darren himself doing it on their behalf.

PN95

THE SENIOR DEPUTY PRESIDENT: Thank you. I can indicate to the parties that on the information provided to me, I'm satisfied that the agreement was reached through a process consistent with that set out in the Act. I won't certify the agreement today because I will give the parties the opportunity to consider the understanding they have of those redundancy provisions. I can advise the parties that I'm satisfied the agreement meets the requirements of the no disadvantage test. I can advise the parties that on the basis of the undertakings given to me, I'm satisfied that the agreement meets the other requirements set out in sections 170LT and LU of the Act.

PN96

If the parties advise me of a collective understanding relative to redundancy within the next week and I am satisfied that that understanding is such that I should certify the agreement in an unqualified fashion, then I will do so from the date upon which I receive that advice. If I continue to have concerns about that redundancy provision, then I would relist the matter.

PN97

I think it unlikely that the redundancy position, or the position adopted by the parties relative to that position would prohibit certification, but it may prompt me to certify the agreement with a qualification pursuant to section 170LW, such that the Commission would not be involved in the determination of disputes under the agreement relating to redundancy. But I wouldn't make that decision unless I gave the parties the opportunity to address me further. Now, if I certify the agreement in an unqualified fashion, the certificate would be sent out to the parties shortly after I receive the advice from the parties.

PN98

That certificate will identify the matters upon which I have sought undertakings. It will also detail the clauses about which I sought clarification, but it will not detail the answers that I've been given to those questions, because those are recorded on the transcript. Mr Harris, are you happy with that approach?

PN99

MR HARRIS: Fairly happy.

PN100

THE SENIOR DEPUTY PRESIDENT: Mr Fenney, are you happy with that approach?

PN101

MR FENNEY: Yes.

PN102

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

ADJOURNED INDEFINITELY [10.50am]