AG2004/4864, Transcript of Proceedings [2004] AIRCTrans 4929 (15 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 2597

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/4864

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by NED Holdings Pty Limited and Another
for certification of the NED Holdings Pty
Limited, trading as North Eastern Demolitions
Enterprise Agreement 2004

ADELAIDE

3.25 PM, MONDAY, 6 DECEMBER 2004

PN1

MR M. HOWARD: If it please the Commission, I appear for NED Holdings Proprietary Limited, trading as North East Demolitions. Appearing with me is MR ARTHUR, on behalf of the employees. I do have to make an apology, your Honour. In respect to the employer, I had a call from him earlier in the day to say there was a gun siege at his school, and he has had to leave and go to make sure the children were safe. Mr Arthur did come to the Commission earlier. He was here on time, went to the Registry, advised them what he was here for, and they said that I reside on South Terrace at the Master Builders Association, so we had to wait for Mr Arthur to come back from the Master Builders to us. I do apologise for those incidents, your Honour.

PN2

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Howard. Mr Howard, I have read the statutory declarations, and I have read the agreement. Do you have a copy of the employer's notice of intention?

PN3

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

EXHIBIT #N1 BUNDLE OF DOCUMENTS

PN4

THE SENIOR DEPUTY PRESIDENT: I note that it is a bundle of documents actually. Presumably, there are six documents. Is that right - - -

PN5

MR HOWARD: I know there was one issued to - - -

PN6

THE SENIOR DEPUTY PRESIDENT: - - - relating to a letter sent to the employees?

PN7

MR HOWARD: That is correct. Yes, there's six in that pack, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Now, those notices of intention propose that after 14 days, the parties would enter into discussions regarding the proposed agreement. Do you know whether that happened, Mr Howard?

PN9

MR HOWARD: I understand that did happen, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Were there any changes made to the agreement?

PN11

MR HOWARD: There were no changes that I'm aware of made from the time the document was issued to the time the document was signed.

PN12

THE SENIOR DEPUTY PRESIDENT: I'm just wondering whether you might help me with my mathematics, Mr Howard. In terms of the 14 days, tell me the agreement was not voted on on the 14th day. If you want me to loan you a couple of fingers, I've just gone through the exercise.

PN13

MR HOWARD: It was signed on the 15th day, your Honour. There's 31 days - - -

PN14

THE SENIOR DEPUTY PRESIDENT: I see, thank you. I will just clarify the process that was followed with Mr Arthur.

PN15

MR HOWARD: Yes, thank you, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Mr Arthur, are you here today as an employee representative in that were you elected as such?

PN17

MR ARTHUR: Yes, I was.

PN18

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Arthur, can you confirm to me that on 27 October, you received advice from the employer about the agreement, together with a copy of that document?

PN19

MR ARTHUR: Yes, I did.

PN20

THE SENIOR DEPUTY PRESIDENT: Are you aware of anyone who has sought to have - an employee who has sought to have a union involved in the negotiations about the agreement.

PN21

MR ARTHUR: No. We discussed that matter, but we all agreed we wouldn't involve the union.

PN22

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me that the agreement was not subsequently changed in any way?

PN23

MR ARTHUR: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Arthur, I'm going to ask Mr Howard some questions about the agreement itself. You don't appear to have a copy so I will loan you one from my file. Mr Arthur, if you want to comment on any of Mr Howard's responses, please feel free to do so. If you want more information about the question, you can do so. My questions do not invite Mr Howard to rewrite the document. They simply go to the issues that I will need to take into account in considering this application. Unless you tell me otherwise, I will assume that you are in agreement with Mr Howard's responses.

PN25

Mr Howard, can I take you to clause 1.6 which is the "Scope and Area" clause. Does the on-site construction work defined by the National Building and Construction Industry Award of 2000 define the entirety of the work undertaken by employees under this agreement?

PN26

MR HOWARD: That is correct, your Honour. The work undertaken by the employer is demolition work, and demolition work is covered by the National Building and Construction Award 2000.

PN27

THE SENIOR DEPUTY PRESIDENT: Clause 3.9 relates to a Work Practices Review. Should I understand that will occur over the life of this agreement, or is there a more specific timeframe the parties have in mind?

PN28

MR HOWARD: It is an ongoing process, your Honour, but will certainly be for at least the duration of this agreement.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 3.11 references the company's Occupational Health, Welfare and Safety Policy as amended. Should I understand that to be a documented policy which is readily available to employees?

PN30

MR HOWARD: That is correct, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: Clause 5.2 and, to some extent, 5.3 overlap parts of 3.11.9. Should I understand the parties will have regard to both provisions but apply the more detailed prescription?

PN32

MR HOWARD: That is correct, your Honour.

PN33

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

PN34

MR HOWARD: Yes, it will, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Finally, clause 9.2.3 refers to 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 that agreement is set out in a coloured brochure made available to all employees wherever they may be working under this agreement?

PN36

MR HOWARD: That is correct, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Arthur, can I take it you are in agreement with all of Mr Howard's responses?

PN38

MR ARTHUR: Yes, I am.

PN39

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me, I am satisfied that this agreement or the terms of this agreement pertain to the relationship between the employer and the employees. I am similarly satisfied the agreement was reached through a process consistent with that set out in section 170LK of the Act. The agreement meets the prerequisites necessary for certification insofar as they are set out in sections 170LT and LU of the Act. Accordingly, I will certify the agreement with effect from today. The certificate giving effect to that certification will be forwarded out to the parties within the next few days.

PN40

That certificate will refer the parties to the transcript of these proceedings in terms of the various issues that I have raised. I congratulate the parties on reaching this agreement, and hope that it operates to the benefit of both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [3.34pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 BUNDLE OF DOCUMENTS PN4