AG2004/5301, Transcript of Proceedings [2004] AIRCTrans 3072 (9 August 2004)

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ADMINISTRATOR APPOINTED

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 2019

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5301

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Construction, Forestry, Mining and Energy
Union - Construction and General Division,
SA Divisional Branch and Another for certification
of the Royal Park Salvage Pty Limited Enterprise
Agreement 2004

ADELAIDE

12.56 PM, TUESDAY, 27 JULY 2004

PN1

MR A. HARRIS: I appear on behalf of the CFMEU. With me is the employer of Royal Park Salvage, MR P. JURKOVIC.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read both the agreement and the statutory declarations. Mr Harris, are you able to advise me of the date upon which the employees met in accordance with question 6.7 of the statutory declaration?

PN3

MR HARRIS: Yes, I know when they got the agreement they had one meeting, then they had a meeting in June, about 22 June.

PN4

THE SENIOR DEPUTY PRESIDENT: I see. So when did the employees receive the agreement?

PN5

MR HARRIS: 2 June.

PN6

THE SENIOR DEPUTY PRESIDENT: 2 June. Thank you. Mr Harris, have you and Mr Jurkovic got copies of the agreement?

PN7

MR HARRIS: Thanks to your staff we have been looked after well.

PN8

THE SENIOR DEPUTY PRESIDENT: You are very fortunate. Mr Jurkovic, I'm going to ask Mr Harris some questions about the agreement. On occasion I might need to direct those questions to you. My questions do not invite the parties to re-write the document that the employees voted on but rather they go to, first of all, the need that I address a number of issues in accordance with the requirements of the Act and secondly, the extent to which I am somewhat confused about some of the provisions in the agreement and if I am confused about them I'm anxious that the parties have a clear understanding. I am also anxious that I can be convinced that employees would at least be able to have genuinely made the agreement.

PN9

So that if you disagree with any of Mr Harris's responses or want to add anything to them, feel free to do so. Mr Harris, if I look at the cover sheet my version has a question-mark scrawled across the middle of that page. Does your version have such a mark?

PN10

MR HARRIS: Yes, it does, but that was a question-mark when we wrote it and we are just making sure the dates corresponded to the inside of the document.

PN11

THE SENIOR DEPUTY PRESIDENT: I see. So it does not reflect anything other than a question during the discussions about the agreement. Clause 1.6 relates to scope and area. Do the employees of Royal Park Salvage undertake work which is not covered by that National Building and Construction Industry Award of 2000?

PN12

MR HARRIS: No, these people - it is their work.

PN13

THE SENIOR DEPUTY PRESIDENT: Clause 2.4 relates to the grievance or disputes procedure. 2.4.8 talks of a reference to the appropriate industrial tribunal. Is that this Commission?

PN14

MR HARRIS: That is where we sit now, yes.

PN15

THE SENIOR DEPUTY PRESIDENT: Do the parties intend that this Commission be empowered to conciliate and, as a last resort, arbitrate any such dispute referred to it?

PN16

MR HARRIS: That is correct, yes.

PN17

THE SENIOR DEPUTY PRESIDENT: That reflects your understanding, Mr Jurkovic?

PN18

MR JURKOVIC: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.8 relates to a work practices review. Should I understand that will occur over the life of the agreement?

PN20

MR HARRIS: Yes, the company is always advancing forward so new training practices happen all the time.

PN21

THE SENIOR DEPUTY PRESIDENT: Mr Harris, if you turn the page from clause 3.8 you will see clause 3.9. It is an entirely different type face. Does 3.9 simply reflect a page inserted in the agreement as part of the negotiation process before the employees were given this final copy of the agreement?

PN22

MR HARRIS: Yes. When we had the original document, as you will see, a lot of them was the standard one done in our office but with further discussion in the company's office we changed things and done it at that time before the men had a copy.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you. 3.9.4 talks of sick and accident income maintenance insurance.

PN24

MR HARRIS: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: It refers to all eligible employees other than casual employees. Should I understand then that other than casuals, any other employee is an eligible employee?

PN26

MR HARRIS: Is an eligible, yes.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.10.7 refers to the construction industry drug and alcohol policy and 3.10 itself in terms of the preamble refers to the company's occupational health safety and welfare policy. Are both of those policies documented and readily available to employees?

PN28

MR HARRIS: Yes, in the company sheds themselves the drug and alcohol one is available on the board. We go around and discuss it in conjunction with the MBA so people have easy access to it. The company's health and safety policy, I've been on the sites, they are in the sheds and they are handed to new employees and if they change them at all the employees are advised straightaway.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. If I can then take you to clause 4.1 which is the wage rates clause and with reference first of all to 4.1.1.1. Is there any recognition of the 36-hour week in those rates?

PN30

MR HARRIS: No. No, Commissioner, that comes in when we are - this company, like the other demolition ones, going into 37 then - 37 then 36, so the rates there are just the ordinary rates of pay excluding the divisor.

PN31

THE SENIOR DEPUTY PRESIDENT: I see. 4.1.1.1 contains rates of pay only for labourers.

PN32

MR HARRIS: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: Should I understand then that the only people employed are labourers? Or alternatively should I understand that the labourer's rate represents a base rate to which are added the various other rates set out later in that clause?

PN34

MR HARRIS: Yes. All employees are employed as labourers and those with the appropriate skills operate the machinery when necessary. When the machinery is not working they return as labourers so it is a base rate with the figures underneath when there are people on the appropriate machines.

PN35

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 4.3 relates to an air-conditioning cleaning allowance. With particular reference to the impact of 4.3.2 am I correct then in understanding that if air-conditioning cleaning work is undertaken such that it is not part of either a quote or a contract, then there is no additional payment made?

PN36

MR HARRIS: Yes, that is right.

PN37

THE SENIOR DEPUTY PRESIDENT: Clause 4.4 talks of a consolidated disability allowance for demolition projects. 4.4.2 talks about the potential for agreement for a site allowance. How should I understand that reference to a site allowance which is repeated in 4.4.3?

PN38

MR HARRIS: If you take the whole clause 4.4 the company is simply saying, and the men understand this, if they go on to a project, ie a major builder one, Baulderstone, HY, etcetera, that has a site allowance on the site, the company will pay that and nowadays what has been happening a bit more is demolition contractors have been winning some jobs in their own right where they demolition before the builder comes along and so that first clause is - if that is the case and the company takes on a project on its own just to do demolition and the figures are greater than 150,000, the blokes will receive that $1.10.

PN39

If they shift from that job and go to a job across the road where there is a site allowance of $1.50, $1.60 they will get the difference. If they do projects that are less than 150,000 or that haven't got a site allowance on it, they just work on the wage structure at the time.

PN40

THE SENIOR DEPUTY PRESIDENT: I see. Now, with reference then to 4.4.2 point 3 and point 4 - let me re-phrase that. With reference to 4.4.2, need Royal Park Salvage be a party to an agreement for employees to qualify for a site allowance?

PN41

MR HARRIS: It comes under the BIRST agreement, agreement between the MBA and ourselves, works on the value of the job and it includes certain allowances when we deal with companies, as in this case, when they do get that site allowance from the site in 4.4.3 which means then they don't get the other allowances, it is absorbed into whatever that site allowance is, for dirty work, etcetera.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. I guess the question that I'm wanting to pursue there is should I understand then that the determination of whether the BIRST agreement with respect to site allowances is applicable is a question for the principal contractor to determine or is it a question for Royal Park in concert with the CFMEU to determine?

PN43

MR HARRIS: Generally it is written into the contract, number one. Number two, this company itself is a member of the - respondent to the BIRST agreement so they have the copies of that and just quickly off my head I think the minimum level is a $2.9 million project. So companies read that while they are doing their contract, realise that that is the goal of the job and that they will pay it. I think the majority of companies always let the subcontractor know that there is a site allowance on the site.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Then if I go to 4.4.3 and the reference to the special rates in clause 25 and 24.4 of the award, is that the only circumstance in which those special rates might become applicable?

PN45

MR HARRIS: No.

PN46

THE SENIOR DEPUTY PRESIDENT: Is there another provision of the agreement that calls up those special rates?

PN47

MR HARRIS: It is simply then as a part of the - an award that is silent in this so if they weren't on a job that was 150,000, they weren't on a job that had site allowance and they were in the condition of wet under foot, second-hand timber, confined space, dirty work, fumes, the men are eligible to approach the company and say, you know, just as per award.

PN48

THE SENIOR DEPUTY PRESIDENT: So that if I asked you to look back to 4.1.1 and to the paragraph that appears underneath the labourers' wage rates, what you are saying to me there is the parties understand that notwithstanding that the agreement states that the only additional rates that should be added to the labourers' rate of pay are those set out in 4.2, 4.3 and 4.4, where there are additional allowances prescribed in the award then those additional allowances apply.

PN49

MR HARRIS: Because they are written in 4.4.3.

PN50

THE SENIOR DEPUTY PRESIDENT: In terms of 5.2.9 - - -

PN51

MR HARRIS: 5.2 what, sorry?

PN52

THE SENIOR DEPUTY PRESIDENT: Point 9, which relates to the 36-hour week of the devisor. Am I correct in understanding that that devisor will be calculated by taking the labourer's rate applicable as at 1 July 2005, multiplying that labourer's rate by 38 and then dividing the resultant figure by 36?

PN53

MR HARRIS: That is correct and encompasses the figure.

PN54

THE SENIOR DEPUTY PRESIDENT: Now, is there a corresponding calculation that needs to occur relative to the other rates set out for specific functions, such as crane crew, excavator operator and loader operator later in that clause?

PN55

MR HARRIS: They will be the same because when people have their leisure day or their rostered day off, it basically comes as an ordinary day.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps I am not expressing myself clearly. I understand then the parties intention with respect to the labourer's rate, but if someone is for instance a high-rise demolition excavator operator, then the hourly rate they will receive up to the 1 April 2006 is in fact calculated by adding $17.95 to $2.20. Now, the question that I am asking then is, does the hourly rate for that high-rise demolition excavator operator change at all other than for the component for the labourer's rate as a result of the 36-hour week devisor coming into effect.

PN57

MR HARRIS: I understand your question and I did think I answered, but I do it again. The majority of people that are full-time on the machine - I forgot the one you said, I think it is the $2.20 one, they are not on the $17, they are basically $19 and that is how their pay packet will show. So when that period of time comes in - that which would then be $19 - I assume $20 that will be multiplied by 38 to get a figure divided back by 36 to get the figure back there.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, in clauses 5.3 and 5.4 are overlapped to some extent the provisions of 3.10, 3.11 Should I understand that the parties intend to apply both provisions focusing on the more detailed prescription?

PN59

MR HARRIS: That is correct.

PN60

THE SENIOR DEPUTY PRESIDENT: Clause 5.6 relates to meal allowance.

PN61

MR HARRIS: Thought I didn't have one there but - - -

PN62

THE SENIOR DEPUTY PRESIDENT: Can you explain that provision for me please Mr Harris?

PN63

MR HARRIS: Yes. When we were negotiating there was a different idea put in there for meal allowances and the parties agreed to take it out. We have done such an excellent job of taking it out, we left the heading just to remember where we took it from.

PN64

THE SENIOR DEPUTY PRESIDENT: I see. So the parties clearly understood as a result of their negotiations there are no provisions relative to meal allowance.

PN65

MR HARRIS: Yes, that was at 6 pm.

PN66

THE SENIOR DEPUTY PRESIDENT: That was explained to employees, was it?

PN67

MR HARRIS: Yes.

PN68

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

PN69

MR HARRIS: Yes, particularly as the company gets new or advanced machinery and needs to teach its people properly how to operate it.

PN70

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 refers to the industry agreed procedure on inclement weather. Am I correct in understanding that relates to the agreement reached between the Master Builders Association and the CFMEU which is detailed in a colour brochure made available to all employees wherever they may be working?

PN71

MR HARRIS: That is correct, generally on all sites.

PN72

THE SENIOR DEPUTY PRESIDENT: Now, the signature page happens not to have any employees signatures. Should I read anything into that provision, or that absence.

PN73

MR HARRIS: No. It was just fortunate that the employer had gone back to his place of work and the men wanted to see his signature first and I didn't get a chance to get back to the job. It wasn't a problem.

PN74

THE SENIOR DEPUTY PRESIDENT: Lastly, appendix 1 and my version of the agreement has two identical pages. Can I just clarify that appendix 1 is only a one page - a document of one page duration?

PN75

MR HARRIS: Yes. I quite often have a tendency to drop my agreement and the back page gets worn off, so I made sure there is two of the one page.

PN76

THE SENIOR DEPUTY PRESIDENT: What foresight thinking, Mr Harris.

PN77

MR HARRIS: Apart from that it is just a mistake.

PN78

THE SENIOR DEPUTY PRESIDENT: The provisions in the last paragraph under protective clothing and safety footwear see jackets, reference clause 2.1 and 3.1 of the agreement. 2.1 relates to the single bargaining unit and 3.1 relates to I think a daily hire agreement.

PN79

MR HARRIS: That actually means that page itself. That actually means that page. If you look up at 2.1 which is preference to Australian made and 3.1 is the life cycle of the jacket. So when it says agreement, it basically means just the clothing.

PN80

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Mr Jurkovic, I am taking it that you are in agreement with all of Mr Harris' responses to me. Is that the case?

PN81

MR JURKOVIC: Yes.

PN82

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. On that basis of that information together with the statutory declarations I am satisfied that the agreement was reached through a process consistent with that set out in section 170LJ of the Act. I am similarly satisfied that the agreement meets the requirements necessary for certification insofar as it is consistent with sections 170LT and LU of the Act. I will certify the agreement with effect from today. The certificate giving effect of that certification will be forwarded out to the parties within the next few days. That certificate will detail the various clauses about which I sought clarification. It will not record the responses that I have been given because those are recorded on the transcript.

PN83

I wish the parties all the very best in working under 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 [1.17pm]