AG2004/8226, Transcript of Proceedings [2004] AIRCTrans 4978 (20 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 2621
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/8226

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by K.R. WIND Pty Ltd and Another for certification
of the K.R. Wind Pty Ltd Certified Agreement 2004

ADELAIDE

2.17 PM, THURSDAY, 9 DECEMBER 2004

PN1

MR C. STARR: I appear for K.R. Wind Pty Ltd and with me today, sir, is MR B. SCHULTE and MR C. OVESEN.

PN2

MR C. NESBITT: I appear for the Australian Worker's Union.

PN3

THE SENIOR DEPUTY PRESIDENT: I could advise the parties that I have read both the statutory declarations and the agreement itself. Unless there is something particular the parties want to say to me, I have no questions about the process that was followed in this matter. I do, however, have some questions about the agreement itself. Mr Starr, would you like me to address my questions to you first of all?

PN4

MR STARR: Yes, sir.

PN5

THE SENIOR DEPUTY PRESIDENT: In doing so, Mr Nesbitt, if you want to comment on any of the responses Mr Starr gives to me, please feel free to do.

PN6

MR NESBITT: Thank you, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: My questions, Mr Starr, do not invite you to rewrite the document at all. They simply go to clarifying the matters or matters that I will need to take into account in considering this application. Can I take you first of all to clause 10 which is the dispute resolution provision of the agreement?

PN8

MR STARR: Yes, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: In particular to page 4 and to clause 10.3 which envisages that a matter which is not resolved could be referred to the Commission for resolution.

PN10

MR STARR: Yes, sir.

PN11

THE SENIOR DEPUTY PRESIDENT: Would the parties intend that the Commission first of all try to resolve any such dispute by way of conciliation with arbitration as a last resort or do they have a different approach or expectation of the Commission?

PN12

MR STARR: No, I would think, sir, conciliation the first attempt and if need be, arbitration.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 11 which is headed, "Workplace, Health and Safety" stipulates that all employees will adhere to all safety and security rules prescribed by K.R. Wind Pty Ltd or their clients at all times. Are those safety and security rules expressed in a written form and if so, are they readily available to employees and might they be changed during the life of this agreement?

PN14

MR STARR: If I could just consult on that matter, sir?

PN15

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN16

MR STARR: I'm advised, Senior Deputy President, there is written documentation and it is available to employees and if it changes during the life of the agreement, the employees are advised and consulted through the safety toolbox meetings.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 12 relates to hours of work. Having regard to both the first and second paragraphs in clause 12, Mr Starr, how would you put to me that I should consider this agreement in the context to the no disadvantage test?

PN18

MR STARR: I think the intent, certainly the first paragraph, sir, is that the parties recognise that wind and in fact weather conditions have a great effect on this company's operations which is in the erection of wind farms. There is an intent by the company and the employees to recognise that if the hours of work are required to be worked over on Saturday or Sundays, with the appropriate rates of course, that the employees would endeavour to do that. That was the intention of the first clause, Senior Deputy President.

PN19

THE SENIOR DEPUTY PRESIDENT: I see. So should I understand then that employees might be required to work any time in a 24 hour period on a 7 day week basis but they would receive additional penalty rates in accordance with this agreement and the award underpinning it?

PN20

MR STARR: That is so, sir. I must say that it is my understanding that that is not generally called on as a rule but it is understood between the parties that, if required, that will be undertaken.

PN21

THE SENIOR DEPUTY PRESIDENT: All right. Well, then if I take you to that second paragraph:

PN22

Working hours shall be a minimum of 38 hours, rostered hours should be based on a 50 or 60 hour week.

PN23

Now, how will that work? Does it work on the basis that the first 38 hours of that 50 hour week being ordinary time and the remainder being overtime?

PN24

MR STARR: No, each day would stand alone, sir, in accordance with the award, 7.6 hours of that would be worked at ordinary time and overtime would be paid for the first 2 hours at time and a half and double time thereafter in accordance with the parent award.

PN25

THE SENIOR DEPUTY PRESIDENT: I see, thank you. If I ask you to look at clause 16, which is no extra claims, is it the case there is a typographical error in that first line, so that the line should read:

PN26

It is agreed by the parties...

PN27

MR STARR: Indeed you are right, sir.

PN28

THE SENIOR DEPUTY PRESIDENT: Clause 23 relates to long service leave. If employees are working outside of South Australia, then how would the provisions of this, or of that Construction Industry Long Service Leave Act be applied? That is, would they be applied in each State or is there some mechanism the parties envisage to apply long service leave in accordance with South Australian Construction Industry Long Service Leave Scheme?

PN29

MR STARR: Can I just take some advice on that, sir?

PN30

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN31

MR STARR: I'm advised, sir, that it is each relevant State that would apply. In fact, K.R. Wind, sir, has only worked in, so far, Tasmania and is only working in South Australia at this point in time, sir.

PN32

THE SENIOR DEPUTY PRESIDENT: I see. So in whichever State the employer happened to be engaging persons, they would enrol in the relevant construction industry scheme and apply that scheme?

PN33

MR STARR: That is so.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. The provisions of clause 24 relate to redundancy. Now, with particular reference to subclause (a), I take it then that the parties intend to apply that to Burst scheme in its entirety as an alternative to clause 17 of the AWU Construction and Maintenance Award?

PN35

MR STARR: That is so, sir.

PN36

THE SENIOR DEPUTY PRESIDENT: Clause 26 deals with income protection insurance. Are you able to advise me of the details of that insurance cover, Mr Starr?

PN37

MR STARR: Yes, sir, I am. In fact, I have some documentation here which I'm happy to pass up. Effectively I have the certificate of currency here, sir, through the Guardian Underwriting Services which has an expiry date of 1 November 2005, maximum 104 weeks and a 28 day waiting period, all of which is contained in these documents, sir.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN39

MR STARR: Did you want me to pass these up, sir?

PN40

THE SENIOR DEPUTY PRESIDENT: If you could hand it up to me, thank you. I will retain it in the Commission's file. I will mark that material, that bundle of information relative to income protection insurance arrangements as W1.

EXHIBIT #W1 BUNDLE OF DOCUMENTS RELATIVE TO INCOME PROTECTION INSURANCE ARRANGEMENTS

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Starr, there is one other question that I overlooked earlier on. The statutory declarations indicate that the relevant award for the purpose of the no disadvantage test is the AWU Construction and Maintenance Award of 2002.

PN42

MR STARR: Yes, sir.

PN43

THE SENIOR DEPUTY PRESIDENT: Given that, as I am understanding it, the employer is a relatively new business, can I be sure that they are in fact a respondent to that award?

PN44

MR STARR: Yes, sir. In fact, even though the answer is not mentioned under that award, sir, an actual affiliate, the Australian Industry Group is and in fact K.R. Wind are members of the Australian Industry Group.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Starr. Mr Nesbitt, can I take it that you are in agreement with all of Mr Starr's responses to my questions?

PN46

MR NESBITT: Yes, sir.

PN47

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me, I am satisfied that the agreement is about matters that pertain to the employment relationship at issue here. I am similarly satisfied the agreement was reached through a process consistent with that, which is detailed in section 170LJ of the Act. The agreement meets the prerequisite requirements necessary for certification that are set out in sections 170LT and LU of the Act.

PN48

Accordingly I will certify the agreement with effect from today. The certificate will be forwarded out to the parties within the next few days. that certificate will identify the various clauses about which I sought clarification but it will direct attention back to the transcript of these proceedings, if the parties want to know or refresh their memory in terms of how they responded. I will take this opportunity to not only wish people Merry Christmas but hope that this agreement operates to benefit both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [2.29pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 BUNDLE OF DOCUMENTS RELATIVE TO INCOME PROTECTION INSURANCE ARRANGEMENTS PN41