AG2004/1019, Transcript of Proceedings [2004] AIRCTrans 575 (13 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 1362

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1019

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Varacalli Painters Pty Limited and Another
for certification of the Varacalli Painters Pty
Limited Enterprise Agreement 2003

ADELAIDE

2.18 PM, MONDAY, 2 FEBRUARY 2004

PN1

MR M. HOWARD: I appear for Varacalli Painters Pty Limited. Appearing with me is MR S. VARACALLI on behalf of the employer and MR G. AINSWORTH on behalf of the employees.

PN2

MR A. HARRIS: I appear on behalf of the CFMEU, South Australian branch. With me is MR A. CARTER.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Harris, are you a party to these proceedings?

PN4

MR HARRIS: I am glad you asked me that question. When we came here we realised that we have an existing EBA enterprise agreement with the company and we had had no notification that a new agreement was being made or anything, and so I am here to see what is happening. So we have got an existing EBA with the company and - - -

PN5

THE SENIOR DEPUTY PRESIDENT: But are you representing employees covered by this - - -

PN6

MR HARRIS: We have got members with the company, yes, but unbeknownst until this morning, we didn't know it was on so that is why I am not prepared.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Howard, what is the employer position relative to Mr Harris' request, presumably for intervention, at this stage?

PN8

MR HOWARD: Well, the employer position is that the proper procedure for the certification of this document was undertaken by the employer and the necessary notices, which I will tender shortly, were given to each of the employees, with a copy of the agreement. It is my understanding the employees made a choice that they would enter into a section 170LK document. The employer has advised me that there was no notice of intention to bargain issued by the CFMEU against the company, and the procedure went ahead as I have just outlined.

PN9

THE SENIOR DEPUTY PRESIDENT: So if I were to characterise Mr Harris' appearance today here as a request for intervention on behalf of his members, what is your position on the matter?

PN10

MR HOWARD: Well, the position would be that it would be very difficult to see why he would want to intervene in the matter that has gone through the proper process of a section 170LK document. If the union was previously a party to the 2000 agreement, I believe it might have been and they never issued any notice of intention to bargain, then the employer had already followed the correct processes of section 170LK with the employees concerned.

PN11

THE SENIOR DEPUTY PRESIDENT: I see. Mr Harris, first of all, what is the union's position relative to this agreement? Have you formulated one?

PN12

MR HARRIS: Two things, Commissioner. One, the previous agreement was the 1998 agreement. There wasn't a 2000 agreement. Two, no, as I pointed out before, it was unbeknownst to us this was happening today. We haven't been sent or given a document.

PN13

THE SENIOR DEPUTY PRESIDENT: I see. So how should I characterise your position? Are you seeking to intervene, or what is it you are seeking?

PN14

MR HARRIS: Well, unfortunately because we didn't know it was on, we haven't had a chance to speak to our members that do work for the company, and others, but I fully accept what would be said, that the people no doubt have got the notice. I have seen the ones Mr Howard's MBA'd right out, so I am not disputing they haven't got it, and if the people hadn't have notified us - most probably so be it - but I am just saying that we came as a respondent to the previous EBA, that we could have perhaps been afforded the courtesy of some sort of notification.

PN15

THE SENIOR DEPUTY PRESIDENT: I see. Subject to anything further you might want to say later, I will reserve a decision on whether or not to allow intervention, but by all means feel free to participate in these proceedings, notwithstanding that obviously if I was required to rule on your request for intervention and ruled against you, then I would discount anything that was said. Mr Howard, I should perhaps say how delighted I am to have an employee representative present in the courtroom.

PN16

MR HOWARD: It will make it much easier, I think, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: I can advise you that I have read the statutory declarations, and indeed the agreement itself. I understand that the vote occurred on 12 January 2004, but I will require information from you as to the extent to which section 170LK has been complied with. Can you provide me with that information?

PN18

MR HOWARD: Yes, I can tender to the Commission the notices that were issued on 17 December 2003.

PN19

THE SENIOR DEPUTY PRESIDENT: These were notices issued to Mr Todd, Mr Ainsworth and Mr Reid, is that correct?

PN20

MR HOWARD: My understanding is it was issued to the three employees whose names appear here, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: I will mark a bundle of documents as V1.

EXHIBIT #V1 BUNDLE DOCUMENTS

PN22

THE SENIOR DEPUTY PRESIDENT: I understand from the documents that a copy of the proposed agreement was distributed with those documents, is that correct?

PN23

MR HOWARD: That is correct, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Was the proposed agreement distributed with the documents changed in any form between 17 December and the occurrence of the vote on 12 January?

PN25

MR HOWARD: No, your Honour. The last time the document was changed, to my knowledge, was 26 November 2003.

PN26

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Now, the statutory declaration indicates there were a total of two employees covered by the agreement. Am I to understand then that that is in error?

PN27

MR HOWARD: I think what happened there, your Honour, there was actually three employees, and what is misleading is that there were only two employees present at the time, the third employee having been on annual leave at the time the document was finally agreed.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Howard, unless there is something else you want to tell me about the process whereby the agreement was reached, can I take it that the employer's position is simply put that there was no request from an employee for a union to be involved?

PN29

MR HOWARD: That is my understanding, your Honour. There was no request from any of the employees to have the union involved.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Ainsworth, are you here today as an employee representative, that is, one of the employees, or did you have a special role to play in the negotiation of the agreement?

PN31

MR AINSWORTH: No, the first part of your question, just purely - - -

PN32

THE SENIOR DEPUTY PRESIDENT: I see. So am I to understand that the agreement was negotiated, in effect, with each of the three employees either individually or collectively?

PN33

MR AINSWORTH: Individually.

PN34

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me that on or about 17 December you received a copy of the letter that I have been given today?

PN35

MR AINSWORTH: Yes, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: And are you in a position to advise me as to whether you are aware of any employee who sought that a union be involved in the process?

PN37

MR AINSWORTH: No, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: I see. Finally, can you confirm that there were no changes made to the agreement which was voted upon by the employees on 12 January this year from that which was provided to you on 17 December?

PN39

MR AINSWORTH: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you. I might pause at this point to ask Mr Harris whether the union has any information which operates to the contrary, in terms of the process that was followed. Mr Harris, can you help me in that regard?

PN41

MR HARRIS: Look, with three working people, I don't want to cause them problems. Our problem was, we hadn't been notified to look at it and go through. At this stage - - -

PN42

THE SENIOR DEPUTY PRESIDENT: You see, the onus for that rests on your members, Mr Harris.

PN43

MR HARRIS: Yes, that is correct. So at this stage, I would like to perhaps make a few people happy and withdraw from these proceedings.

PN44

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN45

MR HARRIS: And I thank everyone for their time.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Harris. Should you wish to do so, that is your prerogative. Mr Ainsworth, I am going to ask Mr Howard a few questions about the agreement itself. My questions don't invite him to re-write the document, they simply go forward clarifying a number of aspects of the agreement itself. If you disagree with any of his responses, please feel free to tell me that. Before I ask you those questions, I note that you don't have a copy of the agreement in front of you so I shall loan you a copy from my file.

PN47

MR AINSWORTH: Thank you.

PN48

THE SENIOR DEPUTY PRESIDENT: Mr Howard, clause 3.5.1 on page 8 makes reference to a casual employee. I am having some difficulty with that concept of a casual employee in the context of clause 3.1 which says that all employment under this agreement will either be daily or hourly hiring. Am I to understand that a casual employee as such would then be one who is on hourly hiring?

PN49

MR HOWARD: No. Hourly hiring, your Honour, is a separate issue to - I suppose you could say a casual employee is in hourly hiring in one respect, but the hourly hire person is a person working on a full time basis who has a rate of pay that includes payment for a number of aspects as set out in 3.2. Under 3.2 on page 6 of the document it says:

PN50

An employee who is employed on the basis of hourly hire will receive the appropriate rate of pay set out in clause 4.1 of this agreement.

PN51

And then it defines the hourly hire situation. It is not uncommon - other documents such as this have come before the Commission before and have been duly certified. It is a concept that is not unusual in the building and construction industry where an employee elects to have what may be termed an all-in rate.

PN52

THE SENIOR DEPUTY PRESIDENT: So that I should understand clause 3.1 to effectively refer to two types of hourly hiring. One would be the casual employment detailed in 3.3 and one would be the full time payment arrangement which recognises an hourly basis.

PN53

MR HOWARD: That is correct, your Honour. That is correct.

PN54

THE SENIOR DEPUTY PRESIDENT: Clause 3.10 on page 9 refers to a work practices review, which I understand will occur over the life of this agreement.

PN55

MR HOWARD: It will, your Honour.

PN56

THE SENIOR DEPUTY PRESIDENT: Clause 3.11.1 refers to the company's health and safety policy. Is that policy documented? Is it readily available to employees and may it be changed during the life of the agreement?

PN57

MR HOWARD: It may be changed in the life of this agreement, your Honour. When these policies are changed, generally when there is a change in the Act and/or the Regulations, or there may be a new code of practice issued from, at the moment, the WorkCover Corporation. If that was the case it may be that the policy might have to be adjusted to reflect the law within that policy, and if that was the case the document would be discussed with the employees and there would not only be change of policy but there would also be a change in the manual procedure for OHS within the company.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 3.11.3 refers to a deduction from the BIRST payments of the premium for the cost of income maintenance insurance. Are you able to tell me, first of all, the quantum of that deduction, and secondly, the basis upon which the income maintenance insurance cover is provided?

PN59

MR HOWARD: The premium is approximately $7.27 per week. It comes into effect after a 14-day period and continues up to 104 weeks where an employee may be away.

PN60

THE SENIOR DEPUTY PRESIDENT: And it provides for what type of cover? Is it average weekly earnings or is it a set amount?

PN61

MR HOWARD: I understand it is average weekly earnings, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 4.1.1.1 refers in the last dot point to a ratio of tradesperson painters to one painter's assistant. Am I to understand then that all of the employees covered by this agreement would be painters?

PN63

MR HOWARD: The circumstance is a ratio that was agreed to, as I understand, in 1998 between the CFMEU and the company as to the ratio of a painter's assistant to the number of painters, and that wasn't changed on this particular occasion. The ratio is still there.

PN64

THE SENIOR DEPUTY PRESIDENT: I see.

PN65

MR HOWARD: My understanding is the document at the moment only covers painters, as there is at the moment no real scope to employ a painter's assistant, but the rate of pay is there in case the circumstances occur.

PN66

THE SENIOR DEPUTY PRESIDENT: Page 30 in clause 8.2 refers to development of a training program. Am I to understand that will occur over the life of the agreement?

PN67

MR HOWARD: That will occur over the life of the agreement, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 refers to the provisions of the industry agreed procedure on inclement weather. Am I to understand that that reflects an agreement reached between the Master Builders Association and the CFMEU, but more appropriately that it is an agreement detailed in coloured brochures which are readily available to all employees wherever they may be working?

PN69

MR HOWARD: That is correct, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard. Mr Ainsworth, are you in agreement with Mr Howard's responses to me?

PN71

MR AINSWORTH: Yes, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. On the basis of the information provided to me today, together with the information contained in the statutory declarations, I am satisfied that a process consistent with that set out in section 170LK(4) has been followed in this respect. I am similarly satisfied the agreement meets the requirements of the Act necessary for certification. It is of a duration envisaged by the Act and contains the necessary dispute resolution procedures. It does not contain provisions which are contrary to the Act and meets the requirements of the no disadvantage test.

PN73

I will certify the agreement with effect from today. That certificate will be forwarded out to the parties within the next few days. It will identify the clauses about which I have sought clarification, but it will not detail the responses that I have been given as those are recorded on the transcript of these proceedings. I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees concerned. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [2.36pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #V1 BUNDLE DOCUMENTS PN22