AG2003/10569, Transcript of Proceedings [2004] AIRCTrans 659 (19 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6060

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/10569, 10570, 10571, 10572,
10573, 10626, 10628, 10629, 10630,
10631, 10632, 10633, 10634, 10635,
10739, 10740 and 10742

CFMEU AND CORAL BANK HOLDINGS PTY
LTD T/AS ALPINE CONCRETE PUMPING
RIVERINA AND MURRAY REGIONAL AREA
COLLECTIVE BARGAINING AGREEMENT
2002-2005

CFMEU AND A & D WALKER PTY LIMITED
RIVERINA AND MURRAY REGIONAL AREA
COLLECTIVE BARGAINING AGREEMENT
2002-2005

CFMEU AND KP & JD LAURENT PTY LTD
T/AS WORKFORCE ON TAP RIVERINA AND
MURRAY REGIONAL AREA COLLECTIVE
BARGAINING AGREEMENT 2002-2005

CFMEU AND LR & C TERMITE BARRIER
SYSTEMS RIVERINA AND MURRAY
REGIONAL AREA COLLECTIVE
BARGAINING AGREEMENT 2002-2005

DAYLITE WINDOWS AND DOORS PTY LIMITED
AND CFMEU SHOPFITTING ENTERPRISE
BARGAINING AGREEMENT 2003-2005

CIVIL WORKS PERSONNEL PTY LIMITED
AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

BALLARAT GROUP TRAINING LIMITED AND
CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002

CFMEU AND SJ & TA STRUCTURAL PTY
LIMITED RIVERINA AND MURRAY REGIONAL
AREA COLLECTIVE BARGAINING AGREEMENT
2002-2005

CFMEU AND FI-PRO SHEPPARTON RIVERINA
AND MURRAY REGIONAL AREA COLLECTIVE
BARGAINING AGREEMENT 2002-2005

CFMEU AND CHRIS ROSS CONCRETE PUMPING
PTY LIMITED RIVERINA AND MURRAY
REGIONAL AREA COLLECTIVE
BARGAINING AGREEMENT 2002-2005

CFMEU AND LATROBE VALLEY
SHOPFITTERS COLLECTIVE BARGAINING
AGREEMENT 2002-2005

WELLAM CONSTRUCTIONS PTY LIMITED
AND CFMEU BUILDING AND CONSTRUCTION
INDUSTRY COLLECTIVE BARGAINING
AGREEMENT 2002-2005

MATOR CORPORATION PTY LIMITED T/AS
MODERN CABINETS AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2003-2005

CFMEU AND WHITFIELD EXCAVATIONS
RIVERINA AND MURRAY REGIONAL AREA
COLLECTIVE BARGAINING AGREEMENT
2002-2005

DA POKE & DL TIMBS AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY COLLECTIVE
BARGAINING AGREEMENT 2002-2005
PARADISE RESOURCES T/AS ANDY'S
EARTHMOVERS AND CFMEU BUILDING
AND CONSTRUCTION INDUSTRY
COLLECTIVE BARGAINING
AGREEMENT 2002-2005

CFMEU AND M & BA WRAITH NOMINEES
PTY LIMITED RIVERINA AND MURRAY
REGIONAL AREA COLLECTIVE
BARGAINING AGREEMENT 2002-2005

Applications under section 170LJ of the Act
by Construction, Forestry, Mining and Energy
Union for certification of the above agreements

MELBOURNE

10.31 AM, MONDAY, 9 FEBRUARY 2004

PN1

MR R. WAINWRIGHT: I appear on behalf of the Construction, Forestry, Mining and Energy Union, together with MS E. THOMPSON, for each of the matters listed.

PN2

MR A. WALKER: I appear on behalf of A & D Walker Pty Limited, of which I am the director.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Walker. Any other appearances? No other appearances. Who would like to start?

PN4

MR WAINWRIGHT: If I could start, your Honour. Just in relation to Mr Walker's matter, first of all, your Honour, the matter has been lodged outside of the 21 day prescribed period, quite significantly outside of that period. The major reason for that, your Honour, is due to the company being based in Swan Hill. There were some hold ups with the documentation there before it was sent down to Melbourne. We will be seeking an extension of the prescribed period, and we seek that you exercise your discretion pursuant to section 111(1)(r). And Mr Walker instructs me that there has been no significant change to the composition of the workforce. In fact, I think he was saying there was no change to the composition of the workforce at all.

PN5

In relation to one matter in the agreement in particular, your Honour, I just want to put some comments on the record. It relates to clause 25, which is the fares and travel allowance issue. The CFMEUs position of the fares and travel in the agreement is that it springs from the fares and travel provision of the National Building Construction Industry Award, and that allowance is only payable in circumstances where the employee is required to travel either to the employer's yard or to the building site.

PN6

In circumstances where the employer provides all transportation to and from the employee's home, that fares and travel allowance, either under the award or the increased allowance under the agreement is not payable. We want to make that matter crystal clear. In relation to the rest of the statutory tests, your Honour, the CFMEU submits that the requirements of section 170LJ and section 170LT have been met. The agreement contains a dispute settlement procedure, its expiry date is no greater than three years from the date on which the agreement is made.

PN7

The agreement comfortably meets the no disadvantage test, and it contains no discriminatory or objectionable provisions, and we seek to have the agreement certified.

PN8

THE DEPUTY PRESIDENT: Thank you. Mr Walker?

PN9

MR WALKER: Your Honour, I have no problems with that. I had a meeting with Mr Wainwright this morning and cleared up my objections to the agreement. There was just some misunderstanding. I was advised one thing, and then we sort of come across - our wires got crossed, and I was then told to pay these allowances, and unable to contact Mr Wainwright until this morning. Anyway, we have sorted out those differences, and I am quite happy to have the agreement certified, if that is okay.

PN10

THE DEPUTY PRESIDENT: No, that is fine. Well, thank you for that. One question. Is it true that Mr Wainwright - do you agree with Mr Wainwright, that the composition of the workforce hasn't changed since the agreement?

PN11

MR WALKER: No. We have got the same amount of workers on the site, and we are progressing with the work as we first started, yes.

PN12

THE DEPUTY PRESIDENT: No. I just wanted to confirm that. Thank you very much. All right. On the basis of the submissions put and the statutory declarations filed, first of all, I will extend time as sought on the basis of the submission of Mr Wainwright and the direct evidence, if I could call it that, of the employer in this case, secondly, I will certify the agreement as sought, and a certificate will be issued as soon as possible. Thank you very much, Mr Walker, you are excused if you wish to leave.

PN13

MR WALKER: Thank you, your Honour.

PN14

THE DEPUTY PRESIDENT: Now, the other matters, Mr Wainwright?

PN15

MR WAINWRIGHT: Yes. Your Honour, in relation to some of the other matters, it has come to the attention of the CFMEU that there have been some delays, and it does seem that the lot of agreements that you have before you are unusual, if I can put it that way. In some of those matters, your Honour, I am going to seek an adjournment so that I can get proper instructions to put to you on extensions of time. The matters on which I want to seek an adjournment are matters 2003/10742, which is the Wraith matter, 2003/10635, which is the Whitfield Excavation matter, 2003/10572, which is the Termite Barrier matter, 2003/10629, which is the SJ & TA Structural matter, and 2003/10631, which is the Chris Ross Concrete Pumping matter.

PN16

Your Honour, all of those matters are significantly out of time. I think the thing that they have in common is that they are from employees who are based in rural areas of Victoria, which I expect has led to the delay. But I have no instructions to put anything to you on the composition of the workforce, so I would seek an adjournment of two weeks to allow me to get those instructions.

PN17

THE DEPUTY PRESIDENT: There is also 10569, Coral Bank Holdings, which is 56 days out of time. You may wish to adjourn that as well.

PN18

MR WAINWRIGHT: Yes, your Honour, I would. There are some matters that are out of time that I am not seeking an adjournment on, but I am seeking that you exercise your discretion on, so I suppose it is the remainder of the matters that are out of time that I seek you exercise your discretion on.

PN19

THE DEPUTY PRESIDENT: Well, the remainder are all less than a month, aren't they?

PN20

MR WAINWRIGHT: Yes.

PN21

THE DEPUTY PRESIDENT: All right. Go on, sorry, I interrupted.

PN22

MR WAINWRIGHT: So in relation to those, I would formally put to you that we request that you exercise your discretion pursuant to section 111(1)(r). I have instructions in those matters that the composition of the workforce did not substantially alter between the time when the agreements should have been lodged and when they were lodged. And in all other respects, your Honour, the submissions that I made earlier also apply to these agreements, in that the requirements of section 170LJ and 170LT have been met.

PN23

THE DEPUTY PRESIDENT: And the reason for the delays in those cases?

PN24

MR WAINWRIGHT: The reasons for the delays are twofold in relation to those matters that I am seeking extension. First of all, delays in getting the paperwork from rural based employers, and in some of the matters delays in transferring the paperwork from one of our offices, the FEDFA division office to the Construction and General Division office.

PN25

THE DEPUTY PRESIDENT: Right, okay. In one matter involving Paradise Resources trading as Andy's Earthmovers, that is 10740, it seems that the CFMEU has not signed the agreement. Now, there is no requirement in the Act, as I recall, that the agreement be signed, but nevertheless what do you want to say about - - -

PN26

MR WAINWRIGHT: No, your Honour. In that case the CFMEU has signed the application to the agreement. In fact, I think I probably signed that, and certainly a senior official of the union signed the statutory declaration, either Martin Kingham or Bill Oliver, I would expect, and certainly my appearance today indicates that the CFMEU wishes to enter into the agreement. So where we seek that to the extent necessary, you overlook any requirement to sign the agreement and take all of those indicators as proving that the CFMEU wishes to enter into the agreement.

PN27

THE DEPUTY PRESIDENT: Yes. I think the test probably really is this - and correct me if I am wrong, Mr Wainwright - whether or not the CFMEU has entered into this agreement. And the statutory declaration seems to suggest that it has. And so what you are saying is, I should be guided by the statutory declaration on that point?

PN28

MR WAINWRIGHT: Yes.

PN29

THE DEPUTY PRESIDENT: That the CFMEU, as a matter of fact, is a party to the agreement?

PN30

MR WAINWRIGHT: Yes.

PN31

THE DEPUTY PRESIDENT: And that I should waive any requirements in the rules, that the agreement be signed, is that what you are putting?

PN32

MR WAINWRIGHT: Yes. And in addition to our appearance here today imploring you to certify it.

PN33

THE DEPUTY PRESIDENT: Right. Well, thank you very much. Well, first of all, in those matters I will, first of all, extend time where it is required, as sought by Mr Wainwright, based on his submissions, secondly, having regard to the sworn evidence in the statutory declarations which are before me, and the submissions put today, I will certify those agreements as sought, and a certificate will be issued as soon as possible. For the record, that doesn't include matters 10569, 10572, 10629, 10631, 10635 and 10742, which are adjourned as sought by Mr Wainwright. Thank you very much. You are excused, if you wish to leave.

PN34

MR WAINWRIGHT: Thank you, your Honour.

ADJOURNED INDEFINITELY [10.41am]