AG2004/7158, Transcript of Proceedings [2004] AIRCTrans 4139 (26 October 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 2335

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/7158

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by McGuinness Rigging Pty Limited and Another
for certification of the McGuinness Rigging
Pty Ltd Enterprise Agreement 2004

ADELAIDE

11.46 AM, FRIDAY, 15 OCTOBER 2004

PN1

MR M.J. HOWARD: I appear for McGuinness Rigging Pty Ltd. Appearing with me is MR B. McGUINNESS on behalf of the company and MR R. CADDEY on behalf of the employees.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Howard. Mr Howard, I've read the statutory declarations and 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.

PN4

THE SENIOR DEPUTY PRESIDENT: I will mark that bundle of documents.

EXHIBIT #M1 BUNDLE OF DOCUMENTS DATED 24/08/2004

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Howard, I take it that the agreement that was provided to employees with those notices of intention was not subsequently changed?

PN6

MR HOWARD: The document dated 23 August, your Honour, was a document - was a finalised document - a copy was handed to the employees on 24 August and remained unchanged until the time it has been submitted to this Commission.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Howard, I've got a couple of questions of Mr Caddey and then I will come back to you about the actual agreement.

PN8

MR HOWARD: Okay, thank you, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Caddey, are you here today as an elected employee representative, or were you chosen to attend by the employer?

PN10

MR CADDEY: Elected.

PN11

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Can you confirm to me that on or about 24 August you received a notice of intention in the terms that have been provided to me?

PN12

MR CADDEY: Yes, that is correct.

PN13

THE SENIOR DEPUTY PRESIDENT: And that attached to that notice was the agreement in the form in which I now have it?

PN14

MR CADDEY: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: Are you aware of any employee who sought to have a union involved in the discussions in this matter?

PN16

MR CADDEY: No.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Caddey, I'm going to ask Mr Howard some questions about the agreement. My questions do not invite him to change the document in any way, they go to the intention of the parties relative to matters that I will need to take into account. I take it you have got a copy of the agreement there?

PN18

MR CADDEY: Yes, I have.

PN19

THE SENIOR DEPUTY PRESIDENT: Now, if you want to add or, indeed, comment on any of Mr Howard's responses, please feel free to do so. If you don't do so I will take it that you are in agreement with him.

PN20

MR CADDEY: Okay.

PN21

THE SENIOR DEPUTY PRESIDENT: Mr Howard, can I take you to clause 1.6. Does the work defined in the National Building And Construction Industry Award of 2000 as on-site construction work, cover the entirety of the work that would be undertaken by employees under this agreement?

PN22

MR HOWARD: That is my understanding, your Honour, that it is a rigging company working on building sites.

PN23

THE SENIOR DEPUTY PRESIDENT: Clause 3.9 relates to a: Work Practices Review. Should I understand that that review would occur over the life of the agreement, or is there an alternative time frame the parties have in mind?

PN24

MR HOWARD: It will at least be the entirety of the term of the agreement, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Clause 3.10.4, relates to: Income Maintenance Insurance. The maximum cover is specified as $800, but should I understand that employees will be paid average weekly earnings up to that amount?

PN26

MR HOWARD: That is correct, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Should I also understand that there is a 14-day waiting period and a maximum period of coverage of up to 2 years?

PN28

MR HOWARD: That is correct, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Now, clause 4.1.1.1 details: Wage Rates. Do the wage rates set out in that clause take into account the impact of the 36-hour week?

PN30

MR HOWARD: They do, your Honour, from the - the wage rates have been structured in this agreement so that - that they do cater for a - when the 36-hour week comes in.

PN31

THE SENIOR DEPUTY PRESIDENT: The 36-hour week, according to clause 5.1.1 comes in on 1 January 2006. Can I take it that there is no change in the hourly rate on that date?

PN32

MR HOWARD: No, the hourly rates as prescribed in this document are more than 4 per cent between the years and that is the compensatory factor for the application of the 36-hour week.

PN33

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Clause 4.1.1.3 relates to: New Employees. Should I understand that the employer determines the extent to which the employee is proved to be competent?

PN34

MR HOWARD: That is correct, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Clause 5.3 and 5.4, to some extent overlap the provisions of 3.11.9. Should I understand that the parties will have regard to both provisions and apply the more detailed prescription?

PN36

MR HOWARD: That is correct, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 relates to: The Development Of A Training Program. Will that also occur over the life of the agreement, or is there a different time frame that the parties have in mind?

PN38

MR HOWARD: At least over the lifetime of the agreement, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Clause 9.1.9 references: The McGuinness Rigging Pty Ltd Occupational Health, Safety And Welfare Policy As Amended. Is that a documented policy that is readily available to employees?

PN40

MR HOWARD: It is, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 references: The Industry Agreed Procedure On Inclement Weather. Should I understand that refers to the agreement reached between the Master Builders' Association and the CFMEU, but that more particularly it is detailed in a coloured brochure made available to all employees wherever they may be working?

PN42

MR HOWARD: That is correct, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Caddey, just to be sure, can I take it that you are in agreement with all of Mr Howard's responses?

PN44

MR CADDEY: Yes, I am.

PN45

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me today and the information contained in the statutory declarations I am satisfied that the agreement meets the requirements of the Act, insofar as it was achieved by way of a process consistent with section 170LK. I'm further satisfied that it should be certified in accordance with sections 170LT and LU of the Act.

PN46

I will certify the agreement with effect from today. The certificate to that effect will be sent out to the parties shortly. That certificate will identify the various clauses about which I have sought clarification. It won't detail the answers that are recorded on the transcript. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [11.56am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 BUNDLE OF DOCUMENTS DATED 24/08/2004 PN5