AG2003/4445, Transcript of Proceedings [2004] AIRCTrans 667 (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 6061

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/4445, 4446, 4448, 4449,
4488, 8478, 10470, 10471, 10552,
10553, 10554, 10555, 10580 and
AG2004/124

OP INDUSTRIES (MELBOURNE)
PTY LTD AND CEPU ENTERPRISE
AGREEMENT 2002-2005

ELLIS AIR CONDITIONING PTY LTD
AND CEPU ENTERPRISE AGREEMENT
2002-2005

Applications under section 170LS of the Act
by OP Industries (Melbourne) Pty Ltd and
Another for certification of the above
agreements

ALLEN INSULATIONS (VIC) PTY LTD
AND CEPU ENTERPRISE AGREEMENT
2002-2005

TRISTATE AIR CONDITIONING AND
MECHANICAL AND CEPU ENTERPRISE
AGREEMENT 2002-2005

AC HALL AIRCONDITIONING
CONTRACTING PTY LTD AND
CEPU ENTERPRISE AGREEMENT
2002-2005

VAN DE POPPE PLUMBING SERVICE
PTY LTD AND CEPU ENTERPRISE
AGREEMENT 2002-2005

I & K SERVICES PTY LTD TRADING
AS THERMELEC AND CEPU ENTERPRISE
AGREEMENT 2002-2005

UNISON DESIGNS & CONSTRUCT CO
PTY LTD AND CEPU ENTERPRISE
AGREEMENT 2002-2005

E & M PLUMBING PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

PLUMBERS NOW CONTRACTING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

E & S MECHANICAL & PLUMBING
SERVICES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

MCLEAN PLUMBING AND CEPU
ENTERPRISE AGREEMENT 2002-2005

KPC NOMINEES PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

BOURKE AIR PTY LTD AND CEPU
ENTERPRISE AGREEMENT 2002-2005

Applications under section 170LJ of the Act
by CEPU Plumbing Division and Others for
certification of the above agreements

MELBOURNE

10.41 AM, MONDAY, 9 FEBRUARY 2004

PN1

MR B. FITTON: I appear on behalf of the CEPU Plumbing Division in all matters.

PN2

MR P. VERBERNE: I appear on behalf of the companies in AG2003/4445, 4446, 4448 and 4449.

PN3

THE DEPUTY PRESIDENT: No other appearances?

PN4

MR C. HARNATH: I appear on behalf of Master Plumbers and Mechanical Services Association of Australia, in two matters, AG2003/8478, which is Van de Poppe, and the other one is AG2004/124, which is Bourke Air.

PN5

THE DEPUTY PRESIDENT: Thank you very much. All right, who would like to start? Nobody?

PN6

MR VERBERNE: I will, your Honour, take the batting. Your Honour, in regard to the agreements that I mentioned when I made my appearance, I understand that they are all out of time in varying degrees. I have here a statutory declaration, your Honour, that I believe would satisfy your Honour in regard to asking you to exercise your discretion under section 111(1)(r). It also establishes that the companies do still want the agreements certified, and also that the composition of the work force in each of the five matters that the companies have been able to advise me this morning, that the work force have not substantially changed.

PN7

Your Honour, I believe the agreements all meet the requirements of the Act in regard to the various provisions of the Act, and I request that you exercise your discretion and certify the agreement. If your Honour pleases.

PN8

THE DEPUTY PRESIDENT: All right. The reason for the delay is problems in the electronic lodgment, is it?

PN9

MR VERBERNE: Yes. This was way back in July of last year when they were lodged, your Honour, and that was, I was still getting the teething correct at that point in time.

PN10

THE DEPUTY PRESIDENT: I recall the mix up that has occurred, yes. Thank you for that.

PN11

MR VERBERNE: Thank you, your Honour.

PN12

THE DEPUTY PRESIDENT: Right, who is next?

PN13

MR FITTON: Yes, your Honour, I believe that all of the agreements meet the requirements of the Act, various requirements, and I rely upon the statements made in the statutory declarations to support that. I believe that the extension of time under section 111(1)(r) should be granted on the basis that I believe the explanation is truthful and correct, and relates to the difficulties that we have had in more recent time. Thank you, your Honour.

EXHIBIT #V1 STATUTORY DECLARATION OF P. VERBERNE

PN14

THE DEPUTY PRESIDENT: Sorry, Mr Harnath, yes?

PN15

MR HARNATH: Your Honour, do you wish to deal with Mr Verberne's matters first and allow mine to come second or do you want my submission now?

PN16

THE DEPUTY PRESIDENT: I would like your submission now, if that is all right.

PN17

MR HARNATH: Thank you, your Honour. The two matters that I have listed before you this morning, your Honour, both only have an employer statutory declaration. I think the Commission is aware of the circumstances and is currently assisting the parties in trying to rectify a problem there. Talking to Mr Fitton this morning, there may well be that the Commission has actually now received the stat dec in regards to both matters from the union. That is sort of a - the Commission might be able to confirm that. I am not aware because I haven't been - - -

PN18

THE DEPUTY PRESIDENT: I haven't seen it. I haven't seen either. That doesn't mean they haven't been lodged. I mean, we have a very efficient Registry, but it is not, you know, instantaneous.

PN19

MR HARNATH: That is fine. If that is the case, your Honour, I would take the similar course as I have on previous occasions before the Commission. I would submit that despite the failure of the CEPU to provide a statutory declaration in the matters, it is evident in the materials before the Commission, as demonstrated by both the agreement and the stat dec from the employer, that an agreement has been concluded between the parties, and we would seek that the Commission would use its powers - - -

PN20

THE DEPUTY PRESIDENT: So you are relying on the material in the employer's statutory declaration?

PN21

MR HARNATH: Yes, your Honour.

PN22

THE DEPUTY PRESIDENT: And we will see if there is any contest with that from Mr Fitton.

PN23

MR HARNATH: Yes, your Honour.

PN24

THE DEPUTY PRESIDENT: Thank you very much.

PN25

MR HARNATH: If the Commission pleases.

PN26

THE DEPUTY PRESIDENT: Mr Fitton?

PN27

MR FITTON: Your Honour, there is no contest regarding the fact that we did make an agreement, and I - - -

PN28

THE DEPUTY PRESIDENT: And the facts in the employers' statutory declarations?

PN29

MR FITTON: Yes.

PN30

THE DEPUTY PRESIDENT: So you are in agreement on the facts and the fact of agreement?

PN31

MR FITTON: That is correct, your Honour.

PN32

THE DEPUTY PRESIDENT: Yes, all right. Sorry, Mr Fitton, there is one other matter, which is 10553, it is Plumbers Now Contracting. It is not one of the ones represented by Mr Harnath. There seems to be a union statutory declaration lacking there, so unless - I don't think it is one of Mr Verberne's either. I might be wrong about that. So what do you want me to do about that? I am not prepared to waive the requirement.

PN33

MR FITTON: Of a statutory declaration. Well, I - - -

PN34

THE DEPUTY PRESIDENT: I understand the other problem and the reasons for it.

PN35

MR FITTON: Your Honour, I would undertake to investigate that matter, and if I can produce a conforming statutory declaration, I would ask his Honour in that circumstance to accept that statutory declaration.

PN36

THE DEPUTY PRESIDENT: Right. So what you are proposing is that we adjourn it, and that you investigate, provide the material if you can, and out of session I certify on the basis of the two sets of statutory declarations. Is that what you are suggesting?

PN37

MR FITTON: I would suggest that that would be an appropriate manner to deal with that.

PN38

THE DEPUTY PRESIDENT: Well, I am happy to do that subject, of course, to the statutory declaration being in an appropriate form and being checked for that. Thank you very much for that.

PN39

MR FITTON: Thank you.

PN40

THE DEPUTY PRESIDENT: Terrific. Well, first of all, I will extend time as sought by the parties in the various matters. Secondly, on the basis of the submissions put and the statutory declarations filed in the case of Mr Harnath's matters on the basis of the employer statutory declarations which the union agrees with, I will certify the agreements as sought. In the case of Mr Harnath's matters I will waive the requirement in the rules that the CEPU provide a statutory declaration in support of the agreement, given the circumstances which it is not necessary to delineate at this stage. Right, is there anything else? No. Thank you very much for coming.

ADJOURNED INDEFINITELY [10.49am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #V1 STATUTORY DECLARATION OF P. VERBERNE PN14