AG2004/6141, Transcript of Proceedings [2004] AIRCTrans 3342 (26 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8219
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2004/6141
AG2004/6142

GRAINWAY ENTERPRISES PTY
LTD CERTIFIED CONSTRUCTION
AGREEMENT 2003/2006

GRAINWAY ENTERPRISES PTY LTD
COLLECTIVE BARGAINING WORKSHOP
AGREEMENT 2003

Applications under section 170LS of the Act
for certification of the above agreements

MELBOURNE

10.14 AM, MONDAY, 16 AUGUST 2004

PN1

MS C. CHEW: I appear for the AMWU.

PN2

MR I. STARING: I appear for Grainway Enterprises.

PN3

THE COMMISSIONER: Now, I note it doesn't require 111(1)(r)?

PN4

MS CHEW: No, for a change it doesn't. Thank you, Commissioner.

PN5

THE COMMISSIONER: So the parties simply rely upon their statutory declarations?

PN6

MS CHEW: Yes, we do. Thank you.

PN7

MR STARING: No, your Honour.

PN8

THE COMMISSIONER: Call me your Honour and I will give you anything you want.

PN9

MR STARING: Sorry. No, Mr Commissioner. I don't know how this process works so - - -

PN10

THE COMMISSIONER: Okay. You are representing Grainway.

PN11

MR STARING: Yes.

PN12

THE COMMISSIONER: Okay. You don't intend to rely upon your statutory declarations?

PN13

MR STARING: No, we don't, Mr Commissioner.

PN14

THE COMMISSIONER: Okay. Well, this is interesting.

PN15

MR STARING: Okay.

PN16

THE COMMISSIONER: Because it is a 170LS agreement, and so why don't you do that?

PN17

MR STARING: On 15 July I approached the unions to get a copy of a construction agreement. I was - spoke with a lady named Sam who was in charge of the documentation.

PN18

THE COMMISSIONER: Right.

PN19

MR STARING: I was given a copy of both a construction agreement and a workshop agreement and told that I must have both, and so then what happened is I took them back, discussed them with my one employee, who is my son, so there is only two of us in the business, and we then negotiated with the union on the subject of income protection insurance, which we subscribe into Incolink and we were both happy with the Incolink one. Anyhow, to cut a long story short, I was told to deal with a Mr Damian King from the Bendigo branch in relation to the workshop agreement, and I was told to speak with a Mr Ali Mulipola in relation to the construction agreement, who is a rep for the Melbourne areas.

PN20

THE COMMISSIONER: Yes.

PN21

MR STARING: So I took - we took a vote of the staff, being the two of us, and - - -

PN22

THE COMMISSIONER: Would have been in trouble if you had a split vote.

PN23

MR STARING: We would be. We would be, but luckily it was a unanimous decision between the staff that we wished to retain income protection insurance through the service provider Incolink, which is the - we believe which is the industry standard.

PN24

THE COMMISSIONER: Right.

PN25

MR STARING: We have been told by the union that they will not accept Incolink under the terms and conditions of the construction agreement. The problem we have is that reluctantly we have been - we feel we have been forced to sign this agreement, otherwise not to get on to site. But the copy of the original agreement that was given to us dictates different percentages as the premium for the cover regarding income protection insurance, and even though the document is the same number document on the bottom, it is the same dated document, the document that I was originally given had a different percentage within it.

PN26

I contacted the insurance company that the union wished for us to insure with, and they said that they - in relation to the percentage that was nominated. They said that they have decided to up the percentages for all new agreements from now on. So what we finished up signing is a document that wasn't pointed out to us that the document differed from the original document that the union gave us in relation to the income protection. After we signed the agreement we were - sorry. Before we signed the agreement we were asked to go down and get a stat dec. So we went down and got a stat dec signed across at Victoria Market, and brought it back and then signed the agreement afterwards, not knowing that the - even though I did sign it I - the percentage had changed in relation to that.

PN27

After all of this, on the way out of the union I was then handed an invoice for $700 to prepare the documents for me to sign. I wrote off to the union, faxed off to the union in relation to the invoice I was given, $700, asking what the $700 was about. I was told by Mr Ali - - -

PN28

THE COMMISSIONER: I know who are you talking about.

PN29

MR STARING: Yes. I was told by him it was in relation to statutory costs and so forth within the Commission. I then contacted the Commission to find out there was no statutory costs involved. A week after I was - after signing the document I was rung and contacted by Mr Ali, who then told me - asked me why I hadn't paid the bill, and said that these - that this wouldn't be certified until the bill was paid. The next thing that I know is that we have been sent the paperwork from the Commission itself.

PN30

THE COMMISSIONER: Right.

PN31

MR STARING: In the interim, like I said before, I faxed off asking questions relating to the bill and asking questions relating to the income protection and have received no answers. So that is - - -

PN32

THE COMMISSIONER: So the agreement that you voted on - - -

PN33

MR STARING: Yes.

PN34

THE COMMISSIONER: - - - is not the agreement by way of the income protection clauses that is before the Commission now.

PN35

MR STARING: Correct. The agreement that we voted on was not - had a different - had a different terminology of the clause of income protection.

PN36

THE COMMISSIONER: Okay. So the agreement that the union seeks to certify is not the same one that you voted on.

PN37

MR STARING: No.

PN38

THE COMMISSIONER: In the income protection clause.

PN39

MR STARING: That is correct. It is not the same one that we voted on.

PN40

THE COMMISSIONER: Okay.

PN41

MR STARING: And our agreement also was accompanied by a letter of a meeting of all employees that was signed by all the employees of our company in relation to wishing to retain the Incolink provider for our insurance.

PN42

THE COMMISSIONER: Right, and you also say that you have got a bill now for $700.

PN43

MR STARING: I got a bill when I walked out the door of the union for $700. That is here, too.

PN44

THE COMMISSIONER: Which was - you say was advised to you that they were statutory charges - - -

PN45

MR STARING: Verbally it was advised to me that they were statutory charges. When I put that question in writing I have received no response.

PN46

THE COMMISSIONER: Okay. Thanks. Ms Chew?

PN47

MS CHEW: Well, Commissioner, this is the first I have heard of it. I wasn't informed by the organiser or the union that there were problems in certifying this agreement. I can't comment on the negotiations, obviously, because I wasn't party to it.

PN48

THE COMMISSIONER: Right.

PN49

MS CHEW: All I can say is that it was signed by both the employees and signed by the union. If there are any concerns I can undertake to inquire as to the circumstances as to what the voting procedures were and what the original documentation was, as comparison to what the voted agreement was. But apart from that I can't really offer you any insights as to the procedure.

PN50

THE COMMISSIONER: Well, okay. Well, Mr - is it Staring?

PN51

MR STARING: Yes.

PN52

THE COMMISSIONER: Mr Staring says that the agreement that seeks to be certified is not the one that they voted on.

PN53

MS CHEW: Well, I would have no idea about that.

PN54

THE COMMISSIONER: Yes.

PN55

MS CHEW: Yes. Sorry.

PN56

THE COMMISSIONER: Well, neither would I, but I will take his word for it.

PN57

MR STARING: Mr Commissioner, I have a copy of the one that was given to us here, originally.

PN58

THE COMMISSIONER: Can I have a look?

PN59

MR STARING: That is the copy, and I have - your Honour's got - and in relation to voting on it, Mr Commissioner, in relation to six signatories on the agreement, the agreement was only - hasn't been signed by any member other than myself, so I don't know - - -

PN60

THE COMMISSIONER: Well, if you are the authorised officer on the part of the company, then it only requires your signature. That is all.

PN61

MR STARING: Okay.

PN62

THE COMMISSIONER: But there is a difference, and it goes to the percentage in clause 19.2, second line from the bottom. The agreement before the Commission says:

PN63

2.040 per cent plus tax.

PN64

The agreement, or the copy of the agreement that has been handed up to the Commission that Mr Staring says that he signed was 1.795 per cent.

PN65

MS CHEW: Yes. Well, again, I can't enlighten you any further on that.

PN66

THE COMMISSIONER: No.

PN67

MS CHEW: I wasn't party to negotiations.

PN68

THE COMMISSIONER: Did you enter into a commercial arrangement with the union of this $700?

PN69

MR STARING: No. I was not made aware of it until I was walking out of the office.

PN70

THE COMMISSIONER: Well - - -

PN71

MS CHEW: I am happy for it to be adjourned, if that helps clarify.

PN72

THE COMMISSIONER: Well, that would be good.

PN73

MS CHEW: Yes.

PN74

THE COMMISSIONER: Yes.

PN75

MS CHEW: Because - - -

PN76

THE COMMISSIONER: Because that is exactly what I am going to do.

PN77

MS CHEW: Yes. Well, all right.

PN78

THE COMMISSIONER: Because if the agreement that is proposed to be certified is different to the one they have voted on, then you have got to start the whole process again.

PN79

MS CHEW: Yes.

PN80

THE COMMISSIONER: And secondly, I think you had better clarify what this $700 is.

PN81

MS CHEW: Yes, I certainly will.

PN82

THE COMMISSIONER: All right.

PN83

MR STARING: And, Mr Commissioner, also in relation to the income protection insurance, our company has no problem being involved in an income protection insurance scheme. But it clearly states in here that it can be provided by a provider as long as it is agreed between the parties. Well, it is a clear want of our staff that the income protection be provided by Incolink, which is the industry standard. Yet, when you go to section 19.3 it then states that the income and sickness accident income protection plan is nominated by the Australian Manufacturing Workers Union Victoria. Now, that actual - it actually contradicts 19.1 and 19.2, and it is not clear.

PN84

The other thing that we would like to bring up, if it was a percentage previously of roughly 1.8 per cent and now it is a bit over 2 per cent, and the premium goes on wages, why is there a need for a percentage rise, because as wages rise so does the actual cost of the insurance rise. The other thing we would like to point out, this insurance is almost three times as expensive as the Incolink, which is $13.09 including all taxes per week, yet the covers are very similar, and in fact we believe that Incolink is a superior cover. So - - -

PN85

THE COMMISSIONER: Well, it is supposed to be an agreement. If you are not happy with contents of what is proposed, then you don't sign it, and you need to check every clause carefully, and if you choose not to sign it then there is no agreement. Now, if you say that that may affect your employment on various sites you can have a 170LK agreement. That is an agreement with yourself and your employee, as opposed to an agreement with the union. So what I would strongly recommend to the union is that they sit down and have some fruitful discussions with Mr Staring to see whether you can reach an agreement. Let me say that I wouldn't sign an agreement anyway that gave the union veto powers as to the sickness and accident - - -

PN86

MS CHEW: Yes. I am not sure that that is what it says in the one that was signed.

PN87

THE COMMISSIONER: Well, it says:

PN88

...nominated by the Australian Manufacturing Workers Union.

PN89

MS CHEW: Is that the draft though?

PN90

THE COMMISSIONER: That is 19.3.

PN91

MS CHEW: Yes. Is that the draft or the actual signed one?

PN92

THE COMMISSIONER: That is the draft.

PN93

MS CHEW: Yes, I see. Sorry. 19.3. Yes, it is in the signed agreement as well.

PN94

THE COMMISSIONER: Yes.

PN95

MS CHEW: Yes.

PN96

MR STARING: And that was not negotiable by the union.

PN97

THE COMMISSIONER: Well, then that is not an agreement. It is as simple as that. So I will put that one aside. Thank you. I will adjourn that matter. We will call 6142 please. Again, this is Grainway.

PN98

MS CHEW: I think that is the same, yes. The same issues.

PN99

THE COMMISSIONER: The same issues? Okay. Well, both those matters will be put aside until we are advised accordingly.

ADJOURNED INDEFINITELY [10.30am]