AG2004/4428, Transcript of Proceedings [2004] AIRCTrans 3417 (31 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS

O/N 2136

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4428

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Scaffold Hirers Pty Limited and Another
for certification of the Scaffold Hirers
Pty Limited Enterprise Agreement 2004

ADELAIDE

11.03 AM, FRIDAY, 20 AUGUST 2004

PN1

MR M.J. HOWARD: I appear for Scaffold Hirers Proprietary Limited. Appearing with me is MR MURPHY on behalf of the employees.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Howard, I've read the statutory declarations. I've read the agreement. Do you have a copy of the notice of intention in this matter?

PN3

MR HOWARD: I do, your Honour.

EXHIBIT #S1 NOTICE OF INTENTION

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Howard, was the document changed in any way from the document which was then provided to employees with that notice of intention?

PN5

MR HOWARD: No, it wasn't, your Honour. I noticed there's an amount on page 26 of $30 where $9.90 has been crossed out.

PN6

THE SENIOR DEPUTY PRESIDENT: Well, Mr Howard, can I stop you there?

PN7

MR HOWARD: Yes.

PN8

THE SENIOR DEPUTY PRESIDENT: Before you go into that matter, I'm aware that someone from your office contacted my office in this regard.

PN9

MR HOWARD: That is correct.

PN10

THE SENIOR DEPUTY PRESIDENT: The advice was that the provisions of clause 7.5.4.1 may have been changed.

PN11

MR HOWARD: What was changed was when we issued the document on 18 June, 2004 the document had $9.90 in it. When the document came back, it had an amount of $30 in it. I've spoken with Mr Tyson, who is the Managing Director of the company, and that was changed prior to him giving the document to the employees. So when the people got the document on 21 July with the letter, that figure of $30 was in the documents.

PN12

THE SENIOR DEPUTY PRESIDENT: Sorry, what is the significance of 21 July? Do you mean 23 June?

PN13

MR HOWARD: That is correct. When the people were issued with the statutory declarations - sorry, the letters - the situation was that Mr Tyson informed me that he changed the document I received from our office. He changed the $9.90 to $30 prior to giving it to the employees.

PN14

THE SENIOR DEPUTY PRESIDENT: Mr Howard, the document I have has $9.90 in it.

PN15

MR HOWARD: Does it?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. I can give you a copy from my file, Mr Howard.

PN17

MR HOWARD: Well, I've got the copy of the document that was electronically filed from our office, and it had an amount of $30 in it so I'm at a loss.

PN18

THE SENIOR DEPUTY PRESIDENT: Mr Howard, the electronic filing process won't change a figure. Someone has changed the figure prior to it being submitted to the Commission.

PN19

MR HOWARD: All I get is what my secretary files. She gives me back the files, so I presume what is in that file is what has been filed here but it seems to me that there's an amount of $30.

PN20

THE SENIOR DEPUTY PRESIDENT: Perhaps I can advise you that the advice that I've received from my associate is that a person from your office has contacted my office to advise that the figure at the third dot point in clause 7.5.4.1 should read "$30" as opposed to the "$9.90" which appears in the agreement.

PN21

MR HOWARD: Well, that is correct. I picked that up myself when I actually picked the file up and saw there was an amount of $30 in there.

PN22

THE SENIOR DEPUTY PRESIDENT: Just wait for one moment, Mr Howard. The file note from my associate goes on to say that on the basis of her discussion with the Master Builders Association what happened was that when the agreement came back from the parties in a signed form, they had, in a handwritten form, changed the figure to $30.

PN23

MR HOWARD: That is correct.

PN24

THE SENIOR DEPUTY PRESIDENT: The MBA employee did not notice that change, and didn't make the change to the agreement so that the document that was filed was filed without changing the $9.90 to $30.

PN25

MR HOWARD: What happened is this document came back from Scaffold Hirers without - - -

PN26

THE SENIOR DEPUTY PRESIDENT: The document you have that I don't have?

PN27

MR HOWARD: The document I had came back from Scaffold Hirers with an amount of $30 in biro, in pen. The $9.90 was ruled out and $30 was submitted into the document. Now, the document we had was 18 June, that is the document that is current before the Commission. That is the document that came back to me from Mr Tyson. Now, had he notified us that he was changing the document, we would normally have changed that document and then sent it back to him so he had a clean document to give to the employees.

PN28

That wasn't the case. What has happened here is that the secretary has filed with the Commission electronically the document marked 18 June, but the document that came back from - she had a file copy of 18 June, so she automatically electronically lodged that but on reading the document that came back from the employer, it had an amount of $30 in pen inserted over the top of the $9.90. That is where the problem was. Now, I picked that up when I picked up the file after she had electronically filed the document. I only picked it up yesterday. Yes, I think it was yesterday or the day before when I was actually having a look at the documents for Commission purposes, and I noticed $30 in there.

PN29

THE SENIOR DEPUTY PRESIDENT: Were there any other changes made to the document that the Master Builders Association provided to Mr Tyson for him to provide to employees?

PN30

MR HOWARD: No. The documents before the Commission on 18 June is the document - what I've instructed her to do from now on is when a document comes back from the company, check it against the master that we held when we issued the document to make sure whether there's any changes made that weren't our doing. What Mr Tyson has done is he informed me. He said, "I already pay $30 to them and so I ruled out $9.90 and put $30." His statement was, "I actually pay them $50 to go to Pasminco but," he said, "I pay them $30 as the meal allowance when they are travelling. He actually inserted that himself prior to giving it to the employees. What he should have done was ask us to change the document and then reissue it but he didn't do that.

PN31

THE SENIOR DEPUTY PRESIDENT: So in really simple terms, what you are saying to me is that if I look at clause 7.5.4.1, the document that was sent out to employees with the notice of intention on 23 June, 2004 had an amount of $30 per meal.

PN32

MR HOWARD: That is correct, your Honour. I can show you the actual document.

PN33

THE SENIOR DEPUTY PRESIDENT: There are no other variations from the document that I have?

PN34

MR HOWARD: There are no other variations, your Honour. That is the only variation I happened to pick up, as I said, because it was in pen, the $9.90 crossed out, and I'm quite happy to show you the actual document that came back from Scaffold Hirers.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Now, Mr Murphy, were you elected as an employee representative?

PN36

MR MURPHY: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: So there was a meeting of employees who voted that you would be an employee spokesperson?

PN38

MR MURPHY: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: As such, did you have a role to play in negotiating this document with the employer?

PN40

MR MURPHY: We all did, yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Did you receive, on 23 June, the notice of intention to which Mr Howard has referred?

PN42

MR MURPHY: The day - - -

PN43

THE SENIOR DEPUTY PRESIDENT: The letter from the employer saying that the employer - the company is prepared to enter into an enterprise agreement with all relevant employees?

PN44

MR MURPHY: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: You received a letter?

PN46

MR MURPHY: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: Did it have a copy of the agreement attached to it?

PN48

MR MURPHY: Yes.

PN49

THE SENIOR DEPUTY PRESIDENT: Do you recall whether that agreement had an amount of $30 per meal for meals incurred while travelling in clause 7.5.4.1?

PN50

MR MURPHY: I can't really recall the exact figures until I was told when I got in here today.

PN51

THE SENIOR DEPUTY PRESIDENT: Mr Murphy, it seems to me you don't have a copy of the agreement so I shall loan you one from my file. I've opened that agreement at the page with 7.5.4.1 on it.

PN52

MR MURPHY: Yes?

PN53

THE SENIOR DEPUTY PRESIDENT: I'm going to ask Mr Howard to show you a copy of his version of that agreement opened to the same page. What I'm trying to establish is whether or not you can confirm to me which document you received on 23 June.

PN54

MR MURPHY: It would be the one that he has got.

PN55

THE SENIOR DEPUTY PRESIDENT: I see, with the handwritten - - -

PN56

MR MURPHY: Yes.

PN57

THE SENIOR DEPUTY PRESIDENT: - - - amendment. Do you know whether there were any other amendments to the document?

PN58

MR MURPHY: No.

PN59

THE SENIOR DEPUTY PRESIDENT: So with the exception of that $30 amount written in by hand, the document that was provided to you on 23 June was identical to that which we now have before us?

PN60

MR MURPHY: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: Thank you. Are you aware of any employees who sought to have a union involved in discussions about the agreement?

PN62

MR MURPHY: Am I aware of it? No, I'm not.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Murphy, I'm going to ask Mr Howard some questions about the agreement. My questions do not invite him to make any changes to the document. We've got enough confusion with changes to the document now. My questions invite Mr Howard to clarify the intention of the parties about certain matters that I will take into account in this application. The opportunity exists for you to advise whether or not you disagree or want to add anything to any of Mr Howard's answers.

PN64

MR MURPHY: Okay.

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Howard, can I take you to clause 1.6, which is the "Scope and Area" clause. Does the on site construction work defined and covered by the National Building and Construction Industry Award of 2000 fully describe all of the work that will be undertaken by employees subject to this agreement?

PN66

MR HOWARD: That is correct, your Honour. They carry out scaffolding work within the context of the National Building and Construction Award of 2000.

PN67

THE SENIOR DEPUTY PRESIDENT: Clause 3.8 references a Work Practice Review. Should I understand that that will occur over the life of this agreement?

PN68

MR HOWARD: I will, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: Clause 3.9 references the company's health and safety policy as amended. Should I understand that that is a documented policy, and that it is readily available to all employees wherever they may be working?

PN70

MR HOWARD: That is correct, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Clause 3.10.5 references the Building and Construction Industry Drug and Alcohol Policy as amended. Should I understand that that too reflects a documented policy readily available to employees?

PN72

MR HOWARD: That is correct, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Clause 4.1.1.1 details wage rates. With the exception of the allowances set out in the later components of clause 4.1, and the disability allowance described in 4.2, are there any other allowances payable to employees?

PN74

MR HOWARD: The only other allowances payable, your Honour, would be the daily travelling allowance, which is set out in 7.1, and when employees are working away from the city limits, which is currently, they would also invoke clause 7.5, being the away from home allowance.

PN75

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 4.1.1.3 references working in the yard. Should I understand that the employer understands that work would still be defined, for the purposes of clause 1.6, by that National Building and Construction Industry Award?

PN76

MR HOWARD: That is correct, your Honour. What happens is that if there's a slight downturn on site, the employees come back and they have a chance to work in the yard, and if they do, they receive the same conditions of employment as if they were working on the site.

PN77

THE SENIOR DEPUTY PRESIDENT: Clause 4.2.1 talks of the erection of modular scaffolding on commercial building sites. How should I understand "commercial building sites" are defined?

PN78

MR HOWARD: Sorry?

PN79

THE SENIOR DEPUTY PRESIDENT: How should I understand "commercial building sites" are defined for the purposes of clause 4.2.1?

PN80

MR HOWARD: Normally, a commercial building site is readily identifiable. It is any other than what we call "the cottage sector" of the industry.

PN81

THE SENIOR DEPUTY PRESIDENT: Clauses 5.3 and 5.4, to some extent, overlap the provisions of clause 3.10. Should I understand that the parties would have regard to both provisions but apply the more detailed prescription?

PN82

MR HOWARD: That is correct, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: 7.5.2.1 talks of the employer not exercising undue influence. Should I understand that there will be no influence exercised at all?

PN84

MR HOWARD: That is correct, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 references the development of a training program. Will that occur over the life of the agreement, or is there a more specific timeframe?

PN86

MR HOWARD: I would occur over the life of the agreement, and it would be ongoing as training is.

PN87

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 references the industry-agreed procedure on inclement weather. Should I understand that reflects the agreement reached between the Master Builders Association and the CFMEU, but that more particularly it is detailed in that coloured brochure readily available wherever employees may be working?

PN88

MR HOWARD: That is correct, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Murphy, can I take it that you are in agreement with all of Mr Howard's responses to my questions?

PN90

MR MURPHY: Yes.

PN91

THE SENIOR DEPUTY PRESIDENT: Thank you. I'm satisfied, on the basis of the information provided to me today, that the agreement was reached through a process consistent with that set out in section 170LK of the Act. I note the confusion over the provisions of clause 7.5.4.1. That may well be an issue that your organisation wants to take up internally, Mr Howard. In that respect, I understand that the agreement put to the employees provided for an amount of $30 in that particular subclause rather than the $9.90 amount which appears in the document before me.

PN92

On the basis of my consideration of the agreement, I am satisfied the agreement meets the requirements necessary for certification in terms of sections 170LT and LU of the Act. I will certify the agreement with effect from today. The certificate giving effect to that certification will record the various clauses about which I have sought clarification. It will record the amount of $30 in clause 7.5.4.1 on the basis of the information provided to me today. That certificate will be sent out to the parties within the next few days, and I would simply note to the parties that the responses to the various questions that I've asked are recorded on the transcript should it be necessary to have regard to them. I congratulate the parties on reaching this agreement, and hope that it operates to the benefit of both the employer and the employees in the future. I will adjourn the matter on that basis.

ADJOURNED INDEFINITELY [11.23am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 NOTICE OF INTENTION PN4