AG2004/7165, Transcript of Proceedings [2004] AIRCTrans 4335 (9 November 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 2427

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/7165

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by PBH Contracting Services Pty Limited and
Another for certification of the PBH Contracting
Services Pty Ltd Enterprise Agreement 2004

ADELAIDE

11.34 AM, FRIDAY, 29 OCTOBER 2004

PN1

MR M. HOWARD: I appear for PBH Contracting Services Proprietary Limited, and with me, MR P. HOUNSELL and MS G. HOUNSELL on behalf of the employer.

PN2

MR A. HARRIS: I appear on behalf of the CFMEU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. I can advise the parties that I have read the statutory declarations and I have read the agreement. Mr Howard, can you tell me upon what date the agreement in its final form was provided to employees?

PN4

MR HOWARD: I can only by the statutory declaration, your Honour. My understanding is that the document was last printed on 30 August and signed on 21 September. I would say that the document in its final form was 30 August 2004 and that within a day that the employees would have received the document.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Howard, I have got some questions about the agreement. I will direct my questions to you but Mr Harris will be well aware that he is able to hop up and disagree with any of your responses, or indeed, add to them if he wishes and that the questions that I have for the parties do not go to changing the words in the agreement but rather clarifying the intention of the parties.

PN6

Can I refer you to clause 1.6? Is there any work to be undertaken by employees under this agreement which is not on site construction work as defined and covered by that National Building and Construction Industry Award of 2000?

PN7

MR HOWARD: No, your Honour, but even if the employees were to do maintenance work, the definition of maintenance work in the National Building and Construction Award 2000 is covered because the employer is an employer within the building and construction industry.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.9 related to a work practices review. Should I understand that will occur over the life of the agreement?

PN9

MR HOWARD: It will, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Clause 3.11 relates to company requirements. It references the company's occupational health, safety and welfare policy. Can I understand that to be a documented policy which is readily available to all employees?

PN11

MR HOWARD: That is correct, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Now, clause 4.1.1 relates to wage rates. Should I understand that the rates applicable as of 1 January 2006, which I think comes close to the expiry date of the agreement, the nominal termination date - - -

PN13

MR HOWARD: That is the date that the 36-hour week is implemented, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Is it? So those rates include the 36-hour week proviso.

PN15

MR HOWARD: They do, your Honour, yes. That is correct, yes.

PN16

THE SENIOR DEPUTY PRESIDENT: Now, clause 5.2.6.5 has been crossed out. Can you tell me when that change was made, Mr Howard?

PN17

MR HOWARD: Well, that I couldn't tell you, your Honour, because I was not privy to the alteration of the document at that time and I say it would have been initialled by Mr Harris and Mr Hounsell. I actually look at the signature.

PN18

THE SENIOR DEPUTY PRESIDENT: Is Mr Hounsell able to help us in that regard?

PN19

MR HOUNSELL: Yes, that was crossed out prior to the employees getting the copy and the union got the copy at the same time.

PN20

THE SENIOR DEPUTY PRESIDENT: I see. So it was done - - -

PN21

MR HOUNSELL: It was done prior to the initial handing-out of the document.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Clauses 5.3 and 5.4 to some extent overlap provisions of 3.11.9. Should I understand the parties would have regard to both provisions and simply apply the more detailed prescription?

PN23

MR HOWARD: Correct, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Clause 7.1.3.3 also contains words which have been crossed out. Should I understand that also occurred at least 14 days prior to the employees voting on the - - -

PN25

MR HOWARD: It would appear that way, your Honour. I would suggest that the alteration would have been made at the same time as the previous one because they were inter-linked.

PN26

THE SENIOR DEPUTY PRESIDENT: Clause 7.5.2.1 picks up the words contained in the award, but notwithstanding that, should I understand the employer will exercise no influence?

PN27

MR HOWARD: That is correct, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 talks of the development of a training program. Will that also occur over the life of the agreement?

PN29

MR HOWARD: That is correct, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 references the industry agreed procedure on inclement weather, extremes of heat. Should I understand that refers to the agreement reached between the Master Builders Association and the CFMEU but more particularly it is detailed in a coloured brochure made available to all employees wherever they may be working?

PN31

MR HOWARD: That is correct, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: How should I understand the provisions of 9.2.5?

PN33

MR HOWARD: Well, that your Honour, is the waiting time of sitting in the shed when it has been declared clement. There is a normal, in the morning, period of 4 hours. What this is saying is if the employees choose to go home before that period expires then they will be paid up to 1 o'clock. If they are prepared to sit in the shed for the period, and that is out of the award, that they will be paid for the whole of the day.

PN34

THE SENIOR DEPUTY PRESIDENT: Does that provision then correspond with the industry agreed procedure referenced in the sub-clause immediately above it?

PN35

MR HOWARD: That procedure mainly deals with the 35 and 37 degrees, move people into the shade and out of the heat at 35 degrees and then at 37 degrees people would be going home. But there is still a waiting period in that situation anyway. So what they are saying basically is if the employees choose to basically go home at the time that it is declared inclement, without waiting for the normal periods, then they will be paid up till 1. If they are prepared to sit in the shed and wait for the normal periods to expire then they will be paid for the whole of the day.

PN36

THE SENIOR DEPUTY PRESIDENT: I see. If I look at the provisions of clause 11, which is the signatory clause of the agreement, should I understand then that the document was signed by the employer and the union on 30 September?

PN37

MR HOWARD: It would appear that the employees signed the document on 21 September and from the dates therein that the union and the employer signed it on 30 September.

PN38

THE SENIOR DEPUTY PRESIDENT: Is there anything further you want to say to me about the agreement, Mr Harris?

PN39

MR HARRIS: No, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Mr Harris, can I take it that you are in agreement with all of Mr Howard's responses to me?

PN41

MR HARRIS: Yes, that is correct. I do not do it very often but actually an apology for clause 11 - I actually was the one that signed first in the wrong spot. So it was not the employer or anyone else. I do not apologise that often but I just thought I would when I do a mistake.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. On the basis then of the information provided to me, I am satisfied that the agreement is an agreement which can be considered pursuant to section 170LI of the Act. I am similarly satisfied that it was reached through a process consistent with that set out in section 170LJ of the Act. It meets the prerequisite requirements for certification contained in sections 170LT and LU of the Act and it will be certified with effect from today.

PN43

The certificate to that effect will be forwarded out to the parties within the next few days. That certificate will identify the various clauses about which I have sought clarification. It will not detail the responses provided to me because those 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 works to benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [11.45am]