AG2004/4850, Transcript of Proceedings [2004] AIRCTrans 4802 (8 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 2569

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4850

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ace Aluminium and Steel Scaffolds Pty Limited
and Another for certification of the Ace
Aluminium and Steel Scaffolds Pty Limited
Enterprise Agreement 2004

ADELAIDE

4.35 PM, MONDAY, 29 NOVEMBER 2004

PN1

MR M. HOWARD: I appear for Ace Aluminium and Steel Scaffolds Pty Ltd. Appearing with me is MS F. LEE and MR G. FLETCHER on behalf of the company and MR M. HEMMINGS on behalf of the employees of the company.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Howard. I can advise the parties that I have read the statutory declarations and the Agreement. Mr Howard, do you have a copy of the employer's notice of intention.

PN3

MR HOWARD: I do your Honour, and I so tender.

PN4

THE SENIOR DEPUTY PRESIDENT: I will mark these documents which are identical, as A1, noting that they reflect correspondence sent, presumably to employees on 17 September 2004.

EXHIBIT #A1 CORRESPONDENCE DATED 17/09/2004

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Howard, was the agreement that was attached to those letters subsequently changed as a result of the discussions which the letter proposes would be entered into after 14 days from that date?

PN6

MR HOWARD: No, your Honour. I will just go back a little bit in time. You will notice that the Agreement has stated July 2004. What has happened, the document was issued to two employees employed by the company. Both of those employees resigned and as a result thereof two new employees were employed, Mr Hemmings and Mr J. Rick and - - -

PN7

MR ............: Trag.

PN8

MR HOWARD: Trag - pronunciation, and the same document was put forward, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: I see, thank you. It wasn't subsequently changed?

PN10

MR HOWARD: No, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Hemmings, did you and Mr Trag draw straws to be here today or were you selected by the employer as the employees' spokesperson?

PN12

MR HEMMINGS: A bit of both. Jason wouldn't really want to know about it because he is Lebanese and is only 21 years of age and he does not really know much about it.

PN13

THE SENIOR DEPUTY PRESIDENT: I see, thank you, and can you confirm that on about 17 September you received a letter together with a copy of the Agreement from the employer?

PN14

MR HEMMINGS: Yes, I first received my first copy on about 2 or 3 of September when I first started and they said - I asked what we were employed under and they said: well, this is the EBA we have got - we are trying to get through at the moment. Have a read through it and we will talk about it later. So then about September - later on, about a couple of weeks later we all sat down and had a yak about it.

PN15

THE SENIOR DEPUTY PRESIDENT: It was not subsequently changed?

PN16

MR HEMMINGS: No. We asked for clarification of a few points. We were quite happy with what was there.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you, and did either you or, to the best of your knowledge, Mr Trag, seek to have a union involved in discussions about the Agreement?

PN18

MR HEMMING: No.

PN19

THE SENIOR DEPUTY PRESIDENT: Now, Mr Hemmings, I'm going to ask Mr Howard some questions about the Agreement document. Do you have a copy of it?

PN20

MR HEMMINGS: Not on me at the moment. May get a copy from my file.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. My questions do not invite Mr Howard to re-write the document in any way. They simply go toward clarifying the intention of the parties about certain provisions that I will need to take into account in this matter. Mr Howard, can I refer you to clause 1.6 which is the: scope in area clause. Does the on-site construction work defined and covered by the National Building and Construction Industry Award of 2000, define the entirety of the work covered by this Agreement?

PN22

MR HOWARD: That is correct, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Clause 3.9, on page 8 talks of a work practices review. Should I understand that to be an ongoing process over the life of the Agreement?

PN24

MR HOWARD: That is correct, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Clause 3.10.3 refers to the employer contribution to the BIRST scheme. Those are reduced by the cost of the premium for the provision of income maintenance insurance. Should I understand - or what should I understand to be those particular costs?

PN26

MR HOWARD: The particular cost for the provision of income maintenance insurance is approximately $8 a week. It might be just slightly more but it is around the $8 a week mark. It is for average weekly earnings up to an amount of 600 with a 14 days, and up to a period of 104 weeks.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you, and that is based on average weekly earnings?

PN28

MR HOWARD: That is correct, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. That also addresses the question I had for you in 3.10.3. The provisions of clauses 5.3 and 5.4, to some extent over-lap the provisions of 3.11.9. Should I understand that the parties will have regard to both provisions and apply the more detailed prescription?

PN30

MR HOWARD: That is correct, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: Clause 8 talks of the development of training program. Again, should I understand that will occur over the life of the Agreement?

PN32

MR HOWARD: That is correct, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 9.1.9 refers to Ace Aluminium and Steel Scaffolds Occupational Health Safety and Welfare policy as amended. Is that a documented policy which is readily available to employees?

PN34

MR HOWARD: That is correct, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: The provisions of 9.2.3 refer to the industry agreed procedure on inclement weather. I understand that to be the agreement reached between the CFMEU and the MBA, but more particularly that that Agreement is set out in a coloured brochure and made available to all employees wherever they may be working.

PN36

MR HOWARD: That is correct, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Howard.

PN38

MR HOWARD: Thank you, your Honour.

PN39

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

PN40

MR HEMMINGS: Yes, so far I can't find any problems. They are all questions we asked and it is the question of the industry agreed procedure and the BIRST one was the other one we had questions on.

PN41

THE SENIOR DEPUTY PRESIDENT: All right. Now, do you want to qualify any of those answers at all? Any of Mr Howard's answers?

PN42

MR HEMMINGS: Mean qualify?

PN43

THE SENIOR DEPUTY PRESIDENT: You don't want to add anything to them or?

PN44

MR HEMMINGS: No.

PN45

THE SENIOR DEPUTY PRESIDENT: All right, thank you. On the basis of the information provided to me I'm satisfied that the Agreement meets the pre-requisites necessary to establish the necessary jurisdiction. Those are set out in section 170LI of the Act. I am similarly satisfied that the Agreement was reached through a process consistent with that detailed in section 170LK and that the Agreement meets the requirements of sections 170LT and LU of the Act.

PN46

The agreement, as a result, will be certified with effect from today. A 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've sought clarification. It will not include the answers that I've 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.

ADJOURNED ACCORDINGLY [4.44pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 CORRESPONDENCE DATED 17/09/2004 PN5