AG2004/5629, Transcript of Proceedings [2004] AIRCTrans 3601 (9 September 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 2181

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/5629

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 Kent Town Developments
Pty Ltd trading as G & D Aluminium/CFMEU
Collective Agreement 2004

ADELAIDE

10.20 AM, WEDNESDAY, 1 SEPTEMBER 2004

PN1

MR A. HARRIS: I appear on behalf of the CFMEU and with me is MR G. NICKELS who owns the company.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Harris. Mr Harris, I've read the statutory declarations and I've read the agreement. Are you able to advise me the date upon which the employees were provided with the agreement in its final form?

PN3

MR HARRIS: The first week of July, it was either the Wednesday or Thursday in the first week.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nickels, I'm going to ask Mr Harris a few questions about the agreement. Do you have a copy of that agreement?

PN5

MR NICKELS: Yes, I do.

PN6

THE SENIOR DEPUTY PRESIDENT: Is that the same copy as Mr Harris has got?

PN7

MR NICKELS: Yes.

PN8

MR HARRIS: I left mine down in the car.

PN9

THE SENIOR DEPUTY PRESIDENT: It might be best if I loan the parties another copy. Mr Nickels, my questions do not invite the parties to re-write the document, they go to issues of intention, relative to this agreement and matters that I need to take into account in considering the application. If you want to add or indeed argue with anything that Mr Harris says, please feel free to tell me just that. Mr Harris, clause 3 relates to scope and area. Does the work defined and covered by the National Building and Construction Industry Award of 2000 fully define all of the work undertaken by employees, party to this agreement?

PN10

MR HARRIS: That is correct, Commissioner.

PN11

THE SENIOR DEPUTY PRESIDENT: Clause 6 is the grievance and dispute procedure. It talks of a matter that isn't resolved between the parties being referred to the Australian Industrial Relations Commission. Can I take it the parties intend the Commission to conciliate with arbitration as a last resort?

PN12

MR HARRIS: That is it as per the award, correct.

PN13

THE SENIOR DEPUTY PRESIDENT: Clause 8 details wage rates. Can I take it that the wage increases set out in this award are in fact percentages being a total of 12 per cent based on an earlier figure, rather than 4 per cent increases on accumulative basis?

PN14

MR HARRIS: Yes, it is a 12 per cent overall, back to 03 as opposed to compound 444.

PN15

THE SENIOR DEPUTY PRESIDENT: Clause 15 talks of injury and sickness insurance. I don't have an attachment or annexure A, Mr Harris.

PN16

MR HARRIS: Can I ask the Commission, when I sent in five documents, I actually did have it on one of the main documents, it had the signature, because I knew this had been a bit of a problem and the one that we signed I believe that was in the blue biro, I felt fairly sure it was on that.

PN17

THE SENIOR DEPUTY PRESIDENT: I have been looking at the documents signed in a blue biro with what might be your signature, Mr Harris, it has got no date, or no name against it, but it does not have an attachment A, or annexure A.

PN18

MR HARRIS: All right, back to your question then, Commissioner, yes, unfortunately the attachment is not there. The employees have got the colour brochure, I've got an attachment A which is the first page which talks about the pay up to 100 per cent, but as you can see in the agreement, it is only 800, that if the unfortunate person is off, they can be paid up to 104 weeks with a 14 day waiting period, cooling off, not cooling off period, just waiting period where they don't get paid. The brochure also points out for the benefits that are included and the other reasons that are excluded.

PN19

THE SENIOR DEPUTY PRESIDENT: Can you provide me with the annexure A?

PN20

MR HARRIS: Yes, I can.

PN21

THE SENIOR DEPUTY PRESIDENT: This was the document provided to employees?

PN22

MR HARRIS: Yes, no, sorry, Commissioner, you have got the front page, the full one was tabled in front of the employees.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, I see. Look, I will hand this annexure A, the one page document back to you. Either today or at some stage over the next couple of days, I will ask you to provide me with a copy of the document provided to employees.

PN24

MR HARRIS: Okay, so the full document.

PN25

THE SENIOR DEPUTY PRESIDENT: On the basis that that is the annexure A, yes. Mr Harris, clause 19 relates to the implementation of the 36-hour week commencing from 1 July 2004. Am I to understand that that arrangement has in fact now been implemented?

PN26

MR HARRIS: For the last couple of weeks, yes.

PN27

THE SENIOR DEPUTY PRESIDENT: So there is no dispute or potential for a dispute over an arrangement that would apply prior to, or consequent upon 1 July 2004, but prior to the actual implementation of the 36-hour week?

PN28

MR HARRIS: No, we worked fairly well with this particular company, Commissioner and any problems we discussed with each other.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 20 relates to WorkCover matters. Should I understand that notwithstanding those provisions, the parties acknowledge the primary obligations that exist between the employer and the employee in accordance with the WorkCover legislation?

PN30

MR HARRIS: That is correct.

PN31

THE SENIOR DEPUTY PRESIDENT: Clause 21 talks of future agreements. Should I understand that the parties acknowledge that provisions in that clause relate in part to matters that are the subject of further consideration in terms of an agreement and hence, some of the provisions in clause 21 are not necessarily binding provisions?

PN32

MR HARRIS: That is correct, it just encourages companies ourselves to start talking as soon as possible.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Harris. Mr Nickels, can I take it you are in agreement with all of Mr Harris' responses to my questions?

PN34

MR NICKELS: Yes, I am, Commissioner.

PN35

THE SENIOR DEPUTY PRESIDENT: And that you are a signature to that agreement?

PN36

MR NICKELS: I am.

PN37

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I am satisfied the agreement was reached through a process consistent with that set out in section 170LJ of the Act on the basis that the information provided to me today and the material in the statutory declarations. I'm similarly satisfied that the agreement itself meets the requirements necessary for certification set out in sections 170LT and LU of the Act. I propose to certify the agreement from the date upon which I am provided with annexure A.

PN38

The certificate which would then be forwarded out to the parties will identify the various clauses about which I have sought clarification, but the parties' responses will be incorporated in the transcript of these proceedings. I wish the parties well in operating under this agreement.

PN39

MR HARRIS: Excuse me, Commissioner.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR HARRIS: I can actually hand it up to you now, I've just written in biro on the top of it, because this is the same document, not the black and white one.

PN42

THE SENIOR DEPUTY PRESIDENT: I see, that is annexure A.

PN43

MR HARRIS: That is what was tabled, yes, I've written in biro on the top.

PN44

THE SENIOR DEPUTY PRESIDENT: Mr Harris, if you give me that document, are you going to be embarrassed in any further hearings later today?

PN45

MR HARRIS: I've got one more hearing with an unreliable employer and no, I'm not.

PN46

THE SENIOR DEPUTY PRESIDENT: Very well, I'm happy to receive that document, and that reflects a copy of the document provided to employees as part of this agreement package.

PN47

MR HARRIS: Yes, sir.

PN48

THE SENIOR DEPUTY PRESIDENT: Very well then, the certification will take effect as of today, and the certificate will be forwarded out to the parties in the next few days.

PN49

MR HARRIS: Thank you, Commissioner.

PN50

MR NICKELS: Thank you.

PN51

THE SENIOR DEPUTY PRESIDENT: That annexure A will be retained on the Commission's file as part of the agreement.

PN52

MR HARRIS: Thank you.

PN53

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

ADJOURNED ACCORDINGLY [10.30am]