AG2004/7191, Transcript of Proceedings [2004] AIRCTrans 4705 (3 December 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 2548
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/7191

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Bianco Walling Pty Limited and Another
for certification of the Bianco Walling Pty
Limited (On-Site) Enterprise Agreement 2004

ADELAIDE

1.34 PM, WEDNESDAY, 24 NOVEMBER 2004

PN1

MR M. HOWARD: I appear for Bianco Walling Proprietary Limited. Appearing with me is MR S. SANTARELLI on behalf of the company and MR M. LUDBROOK on behalf of the employees.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. I can advise the parties that I have read the statutory declarations and I have read the agreement. Mr Howard, do you have a copy of the notice of intention issued by the employer in this matter?

PN3

MR HOWARD: I do, your Honour.

EXHIBIT #B1 BUNDLE OF DOCUMENTS CONSISTING OF LETTERS DATED 27/09/2004

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Howard, can I refer you to the last sentence of that document. It says:

PN5

After 14 days from today's date it is proposed that we enter into discussions regarding the proposed agreement.

PN6

Did that actually occur or after 14 days was there a vote on the agreement?

PN7

MR HOWARD: My understanding, your Honour, if I read the agreement, at clause 2.1, the single bargaining unit, the single bargaining unit was established comprising two representatives of the company and two representatives of their workers covered by this enterprise agreement. It is my understanding that the agreement - a little bit of history with this agreement, your Honour, is that originally it was being negotiated with the union. When the employees did reach agreement with the employer the union would not sign the agreement because they didn't agree with the full content of the document.

PN8

What happened then was the document was reproduced without the union as parties to it, then re-issued to the employees for further negotiation. My understanding is that that further negotiation resulted in the document being signed off on 14 October 2004. My understanding is there were discussions after the letters were issued to the employees concerned.

PN9

THE SENIOR DEPUTY PRESIDENT: I see. Now, did the document that was attached to these letters dated 27 September change in any way?

PN10

MR HOWARD: No. The document itself, the new document, was actually produced and given - was available on 30 September, as you can see on the footnote of the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I'm about to come to that.

PN12

MR HOWARD: Yes. My understanding is the letters were issued and then the agreement was then given to at least the representatives for discussion after the 14 days from that date and you will notice the document has been signed on 14 October which is the 15th day after the representatives had a copy of the document.

PN13

THE SENIOR DEPUTY PRESIDENT: I see. Then if I look back at the letters dated 27 September, was there a copy of the proposed agreement attached to those letters?

PN14

MR LUDBROOK: Yes. Yes, your Honour. On behalf of the employees, the workers, I went round and explained everything to them with the agreement.

PN15

THE SENIOR DEPUTY PRESIDENT: Was the document that was attached to the letters of 27 September the same document that I have before me now?

PN16

MR LUDBROOK: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: So that if I look at this document that I have before me now and the footer at the bottom of that document which is dated 30 September 2004, it is 3 days after the 27 September letter, how should - should I understand that the - the document that was given to employees was the same as the document that I have before me?

PN18

MR LUDBROOK: Yes. Yes, it was. When they sent the letter out, they sent the letter out, the same document you have before you. Michael took it out with the letters as a group and we discussed it and read it, same document, and then 14 days after they all signed and agreed.

PN19

THE SENIOR DEPUTY PRESIDENT: When were employees given the letters dated 27 September 2004? Just so that I can - I don't want to be confusing the parties in this regard. The difficulty I have is that I've been given letters which I've called B1. Those letters are dated 27 September 2004 and they purport to have attached to them a copy of the proposed agreement. The agreement itself is dated 30 September 2004. So I'm trying to establish when the employees were given those letters which Mr Howard says are notices for the purposes of the Act and when they were given copies of the agreement.

PN20

MR HOWARD: Your Honour, I understand that what happened was the letters were prepared and then on 30 September when they had a copy of the agreement, that is when the letter and the agreement were then distributed. So the letters didn't go out on the 27th, they actually went out on the 30th with a copy of the agreement.

PN21

THE SENIOR DEPUTY PRESIDENT: I see. When you say, Mr Howard, they went out, the letters went out - - -

PN22

MR HOWARD: They were distributed, your Honour, by Mr Ludbrook.

PN23

THE SENIOR DEPUTY PRESIDENT: All right. So that all employees received the letters on the 30th?

PN24

MR HOWARD: That is correct.

PN25

MR LUDBROOK: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Howard. Mr Ludbrook, you are here today as the employee representative, is that the case?

PN27

MR LUDBROOK: Yes. Yes, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Were you elected as such?

PN29

MR LUDBROOK: Yes, by the fellow workers.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, as I understand it, you delivered the letters and the agreement to employees.

PN31

MR LUDBROOK: Yes, I took them around to them.

PN32

THE SENIOR DEPUTY PRESIDENT: Are you aware of any employee who sought to have a union involved in the process after you delivered those letters?

PN33

MR LUDBROOK: Whether the union - sorry, I'm a bit deaf.

PN34

THE SENIOR DEPUTY PRESIDENT: Are you aware of any employee who wanted to have a union involved in the process - - -

PN35

MR LUDBROOK: No.

PN36

THE SENIOR DEPUTY PRESIDENT: - - - after you delivered those letters.

PN37

MR LUDBROOK: No one was worried about the union.

PN38

THE SENIOR DEPUTY PRESIDENT: So should I understand that at some stage prior to delivering the letters a union had been involved?

PN39

MR LUDBROOK: Before, yes, yes, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: But not subsequently.

PN41

MR LUDBROOK: Not afterwards, no.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ludbrook, I'm going to ask Mr Howard some questions about the agreement itself. Do you have a copy of the agreement available to you? My questions do not invite Mr Howard to re-write the documents, they simply go to addressing issues that I need to take into account in this matter. I shall loan you a copy from my file. Mr Howard, can I refer you to clause 1.6. Does the work defined as on-site construction work under the National Building and Construction Industry Award of 2000 cover the entirety of the work to be undertaken by employees under this agreement?

PN43

MR HOWARD: That is correct, your Honour. Some weeks ago your Honour certified agreement which was the Bianco Walling Proprietary Limited Off Site Agreement which covered the yards. This particular agreement covers the brick-laying operations of the company. So it is an on-site operation that is covered by the National Building and Construction Award 2000.

PN44

THE SENIOR DEPUTY PRESIDENT: Clause 3.8 relates to a work practices review. Do the parties intend this to occur over the life of this agreement or is there a different time frame that they have in mind?

PN45

MR HOWARD: An ongoing process, your Honour, but certainly for at least the life of this agreement.

PN46

THE SENIOR DEPUTY PRESIDENT: Clause 3.9.1 refers to the company's health and safety policy as amended. Do I understand that to be a documented policy which is readily available to all employees?

PN47

MR HOWARD: That is correct, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 3.9.3 refers to contributions to the BIRST fund on behalf of each eligible employee. Now, are eligible employees defined? How do the parties understand the concept?

PN49

MR HOWARD: Yes, your Honour. An eligible employee is a full-time employee working on industrial commercial building site. On page 7 of the document at clause 3.2.6:

PN50

A casual employee or a person receiving a casual loading as set out in clause 3.2.4 will not have contributions made to the BIRST fund.

PN51

So it is for full-time employees working on industrial commercial building sites. That is an eligible employee as casuals are excluded from the provisions of the BIRST fund, in terms of payments.

PN52

THE SENIOR DEPUTY PRESIDENT: An eligible employee could also be a part-time employee, could they not?

PN53

MR HOWARD: Could also be a part-time employee, your Honour. At this point in time there are no part-time employees employed, but it could be, yes, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: 3.9.4 refers to income maintenance insurance. Now, should I understand first of all that the amount of insurance up to that maximum of $700 per week will vary according to average weekly earnings?

PN55

MR HOWARD: That is correct, your Honour. It is up to a maximum cover of $700 per week gross, so there could be a fluctuation in each individual's incomes but it would not exceed $700 per week.

PN56

THE SENIOR DEPUTY PRESIDENT: Further, is there a waiting period?

PN57

MR HOWARD: There would be a waiting period of 14 days, your Honour. That is the normal waiting period.

PN58

THE SENIOR DEPUTY PRESIDENT: Is the income maintenance insurance an indefinite insurance cover or is it limited by - to, say, an amount of 2 years?

PN59

MR HOWARD: It is limited for a period of 104 weeks, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: The last sentence in that particular clause says:

PN61

The insurance will not cover employees for periods of leave without pay.

PN62

Does that mean that if an employee is on leave without pay there is no premium paid during that time? I ask that question given that I have been through the awkward situation where a non payment of a premium has resulted in the insurer not considering that they have any obligation to provide insurance.

PN63

MR HOWARD: I'm not exactly sure, your Honour, but I do know in practice that the insurance premiums are paid on a monthly basis for 4 weeks at a given rate on a monthly basis, because that is what the premiums are based on. I would imagine that dealing with the insurance company through Eastern Equity Brokers that that would be the norm. They don't stop and start the premiums. I don't know of anybody who does not pay the premium when a person is not at work otherwise they could be on - if they were on leave - say they were on - that period there may not be a true sick leave situation because if you are on actual sick leave without pay you would be receiving the insurance benefits and you will be paying the premium.

PN64

What that would go to, that if a person applied for 3 or 4 months' leave without pay then the company would not pay the insurance premium. That is how I understood it to be and my friends are nodding on my left to say that is what the meaning of it is. So if I decided to take 6 months' leave or 3 months' leave without pay to go overseas, the employer in this case would not be paying insurance premiums for me. But if I was on unpaid sick leave and receiving the benefits of the insurance policy, as I would, then the company would continue to pay the premium.

PN65

THE SENIOR DEPUTY PRESIDENT: I see. So that whilst I understand that the premium would not be paid for extended periods of leave without pay, under what circumstances would it still be paid?

PN66

MR HOWARD: If you are on sick leave and you are providing them with a certificate, you ought to be getting the benefits of the insurance policy. So say I average $700 a week. Whilst I'm off on sick leave and I had no pay coming from the employer, the insurance company continue to pay my $700 a week and the company would be paying the insurance premium. As I said previously, if I said to the employer: I want 3 months' leave without pay, to go overseas or whatever, then there would be no insurance premium paid for that period of time because you technically wouldn't be in the workforce. What would happen is when you came back after that leave without pay the insurance premiums would recommence. There is a difference.

PN67

THE SENIOR DEPUTY PRESIDENT: So should I understand then that the employer will continue to pay a premium whilst the employer considers the employee to be technically in their employee?

PN68

MR HOWARD: That is correct.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions of clauses 5.3 and 5.4 to some extent overlap the provisions of 3.10.9. Should I understand the parties will have regard to both provisions and simply apply the more prescriptive arrangement?

PN70

MR HOWARD: That is correct, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Clause 8.2 relates to the development of a training program. Will that occur over the life of this agreement or is there a more particular time frame the parties have in mind?

PN72

MR HOWARD: Once again, your Honour, the training program is an ongoing program to meet the requirements of new products and new technology and new work methods, but it will be for at least the period of this agreement.

PN73

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

PN74

MR HOWARD: That is correct, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Now, Mr Ludbrook, are you in agreement with all of Mr Howard's responses to my questions?

PN76

MR LUDBROOK: Yes, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me by the parties I am satisfied that the agreement that was reached in this case meets the prerequisite requirements set out in section 170LT of the Act. It is an agreement reached in accordance with the provisions of section 170LK and it qualifies for certification in terms of sections 170LT and LU of the Act. I will certify the agreement with effect from today.

PN78

The certificate that will be forwarded out to the parties within the next few days will identify the various clauses about which I have sought clarification. It will not detail the answers that I have been given because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employees and the employer. I shall adjourn the matter accordingly.

ADJOURNED INDEFINITELY [1.51pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 BUNDLE OF DOCUMENTS CONSISTING OF LETTERS DATED 27/09/2004 PN4