AG2004/5298, Transcript of Proceedings [2004] AIRCTrans 2991 (2 August 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1995

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5298

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Remphrey Nominees Pty Limited and Others
for certification of the Remphrey Nominees
Pty Limited trading as GGK Engineering
Enterprise Agreement 2004

ADELAIDE

10.45 AM, THURSDAY, 22 JULY 2004

PN1

MR M.J. HOWARD: I appear for Remphrey Nominees Pty Ltd.

PN2

MR A. HARRIS: I appear on behalf of the CFMEU.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Howard, are you able to advise me of the date upon which the employees received the final copy of this agreement?

PN4

MR HOWARD: The day on which the employees received the final document, your Honour, was 20 May, 2004. You may see that there are three signatory pages. That is because the men were scattered at the time. Each and every one had a copy, as you may see at the bottom, 20 May 2004, and they were the respective pages signed by the employees, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Howard, given the diverse locations of the employees, are you able to tell me how the employees actually approved the adoption of the agreement?

PN6

MR HOWARD: Yes. My understanding that the men that were working on the Frome Street Apartment Car Park Apartment Building, at one stage they were all there and then one person was moved to Norwood. There is a project out on Norwood Parade or thereabouts. One of the persons was working there and I understand is still working there, or he was last week. One person had gone to the airport and was still working there up until last week when the work ran down and he was moved back to the Frome Street Apartments.

PN7

It is my understanding that they all had the document together when they were all at Frome Street. They basically had reached agreement and there were some changes made to the document and the last document that forecast those changes was 20 May. So whilst there might have been three signatory pages, it is my understanding the document had been agreed by the five employees concerned at the Frome Street Apartments. The mere fact that when it came to sign the document in that 15-day period, they had been dispersed to two other jobs, had no difference to the actual vote, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, but I'm afraid I'm a little at a loss. Was there an actual vote on 10 June?

PN9

MR HOWARD: My understanding is the document was agreed by a valid majority on 10 June. It was just that these people all had a copy of their own document and it is signed, the respective page of their document.

PN10

THE SENIOR DEPUTY PRESIDENT: So was there a meeting of all of the employees on 10 June?

PN11

MR HOWARD: Well, I'm not sure as to whether there was a meeting of all the employees on 10 June. All employees had a meeting on or around 20 May. It was either 19 or 20 May. The document was then changed to reflect that meeting. It is my understanding that the union was involved at the time. It wasn't Mr Harris, another one of the organisers. It was agreed that that would be the document. The document was then altered and distributed again to the employees concerned on 20 May.

PN12

Those persons, as I said, there were three of them as at 10 June working on the Frome Street and one of the others at each location. My understanding is, based on the previous meeting where they agreed the changes to the document, this document reflect their agreement. When they signed on 10 June, they had all agreed again on that day to sign the document but there was three in one location and one in each of the other locations.

PN13

THE SENIOR DEPUTY PRESIDENT: So that if I look at the three signature pages on the document - - -

PN14

MR HOWARD: That would reflect the majority.

PN15

THE SENIOR DEPUTY PRESIDENT: - - - is it appropriate for me to then conclude that you are saying to me that irrespective of whether or not there was a meeting, the fact that all five of the employees to be covered by this agreement signed to indicate that they agree with the terms of the agreement and should be taken as a valid majority for the purposes of the Act?

PN16

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

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Harris, are you in agreement with that sequence of events and submission?

PN18

MR HARRIS: Yes, mainly Justin Feehan was our organiser and I know something with regards to the lads, they said: we've all got to sign it, we've all got to sign it and so I know he went to - I think it was Norwood, HMI at Norwood and also down to the airport. So I believe that is why those back pages are like that.

PN19

THE SENIOR DEPUTY PRESIDENT: I see, yes. Was it Mr Feehan who explained the agreement to the employees?

PN20

MR HARRIS: Yes.

PN21

MR HOWARD: This process, your Honour, just to clarify it, was commenced in the first week of March. There had been a number of variations to the agreement and Mr Feehan was - I didn't name him but he was the organiser representing the employees with Remphrey Nominees Pty Ltd. As a result of meetings, there were the changes made to the document on a couple of occasions but the last occasion was that of the 20 May. Then from then, I've explained the circumstances.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. With reference to clause 1.6, is there any work undertaken by employees of Remphrey Nominees which is not covered by the National Building Construction Industry Award?

PN23

MR HOWARD: No, your Honour. The type of work this company performs is work that is normally found on medium to large size commercial projects within the building construction industry.

PN24

THE SENIOR DEPUTY PRESIDENT: Clause 3.9 on page 8 refers to a work practices review shown. Do I understand that will occur over the life of the agreement?

PN25

MR HOWARD: It will, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Clause 3.10.1 refers to the company's health and safety policy as amended. Should I understand that is a documented policy readily available to employees?

PN27

MR HOWARD: That is correct, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: 3.10.4 refers to income maintenance insurance. Are you in a position to give me information relative to the basis of that insurance?

PN29

MR HOWARD: Yes, your Honour. This would be the first time this company has been involved in the payment of income maintenance insurance. That income maintenance insurance is a 14 day up to 104 weeks policy.

PN30

THE SENIOR DEPUTY PRESIDENT: It presumably provides employees with average weekly earnings or a fixed amount?

PN31

MR HOWARD: At the time of the making of this document, they had not actually instigated the policy but the policy would be no less than $600 a week. The document would not come into less than that particular amount, your Honour. I'm not sure as to the final figure that has been agreed with the income maintenance insurance but it certainly would not be less than $600 a week.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. With reference to clauses 5.1 and 5.2.6.5, should I understand then that the parties intend to apply the 36 hour week in total from the date upon which this agreement reaches its nominal expiry date?

PN33

MR HOWARD: That is correct, your Honour, and you might see that the wage rates for 1 January 2006 actually reflect that 36 hour divisor.

PN34

THE SENIOR DEPUTY PRESIDENT: But then in relation to clause 5.2.6.1, there is a staged implementation of that arrangement?

PN35

MR HOWARD: That is correct, your Honour. From 1 January 2005, the additional leisure days will be implemented but the 36 hour divisor won't come in until 1 January 2006.

PN36

THE SENIOR DEPUTY PRESIDENT: I see. Should I understand from 5.2.6.2 and 5.2.6.3 that there are, in effect, 13 such days?

PN37

MR HOWARD: That is correct, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Clauses 5.3 and 5.4 to some extent overlap with clause 3.11.9. I understand the parties will apply both provisions but focus on the more detailed prescription?

PN39

MR HOWARD: That is correct, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Page 27, clause 7.5.2.1 talks of the company not exercising undue influence. Can I take it the employer is not exercising any influence?

PN41

MR HOWARD: That is correct, your Honour.

PN42

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?

PN43

MR HOWARD: That is correct, your Honour.

PN44

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

PN45

MR HOWARD: That is correct, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Am I to understand that reflects the agreement reached between the MBA and the CFMEU which is set out in the coloured brochure available to all employees?

PN47

MR HOWARD: That is correct, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris, are you in agreement with Mr Howard in this matter?

PN49

MR HARRIS: Yes, Commissioner, no problem.

PN50

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me, I'm satisfied that the agreement was reached through a process consistent with that set out in section 170LJ of the Act. I'm similarly satisfied the agreement meets the requirements necessary for certification in terms of sections 170LT and LU. I propose to certify the agreement shortly after 11.30 am today which was the time initially set for the hearing of this matter subject to a request from any person or party to intervene in the matter.

PN51

Were such a request to be received, I would not certify the agreement and would list the matter for a further hearing. On the basis that I do certify the agreement with effect from today, that certificate will be sent out to the parties within the next few days and it will identify the various clauses about which I have sought clarification. The parties responses are recorded on the transcript. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [19.59am]