AG2004/1043, Transcript of Proceedings [2004] AIRCTrans 801 (3 March 2004)

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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 1435

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/1043

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Australian Seating Systems Pty Limited
and Others for certification of the Australian
Seating Systems Pty Ltd Enterprise Agreement 2004

ADELAIDE

9.35 AM, THURSDAY, 19 FEBRUARY 2004

PN1

MR M.J. HOWARD: I appear on behalf of Australian Seating Systems, Proprietary Limited, and with me, MR L. BURGESS on behalf of the company and MR G. SOAR on behalf of the employees.

PN2

MR A. HARRIS: I appear on behalf of the CFMEU, and with me MR J. FEEHAN.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Harris, I note your appearance. I'm not absolutely certain of the status of the CFMEU in this matter. I did ask that you be notified of this hearing because the statutory declarations indicated that paragraph 4.2 that the CFMEU had notified the employer in writing that it wanted to be bound by the agreement in accordance with section 170M(3)(c). Have you done that?

PN4

MR HARRIS: No, to answer the three questions you really asked me, I'm appearing here - I'm on instruction today because we got an invite from the Commission to be here and if that wasn't the case we were just going to listen. I have no knowledge that we've done that.

PN5

THE SENIOR DEPUTY PRESIDENT: I see.

PN6

MR HARRIS: In fact, I'm sort of fairly sure we haven't done that.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Well, on that basis and given some uncertainty, I'll note your appearance. The actual status accorded to the CFMEU will remain in a state of suspended animation for a moment until we ascertain what the employer view is.

PN8

MR HARRIS: That's all right. I'll leave it up to the employer and their foreman to explain.

PN9

THE SENIOR DEPUTY PRESIDENT: Meanwhile we will enjoy your company. Thank you, Mr Harris. Mr Howard, I've read the statutory declarations in this matter. I have a couple of questions about them. The first question is the one that I've already alluded to. 4.2 indicates that the CFMEU have given advice that it wants to be bound by the agreement. Is that the case?

PN10

MR HOWARD: That's correct, your Honour. They served a notice on 30 January 2003. It was BP number 2003/474, initiation of a bargaining period.

PN11

THE SENIOR DEPUTY PRESIDENT: So the CFMEU have initiated a bargaining period but has it served a notice pursuant to section 170M of the Act?

PN12

MR HOWARD: Sorry?

PN13

THE SENIOR DEPUTY PRESIDENT: Has it served a notice pursuant to section 170M?

PN14

MR HOWARD: They served the initiation of a bargaining period and there was some correspondence back in 2003 between Mr Burgess of Australian Seating Systems and Mr O'Malley from the CFMEU. That was back in February 2003.

PN15

THE SENIOR DEPUTY PRESIDENT: I see. So that if I can clarify the position here. Is it correct for me to say then that the employer understands that the CFMEU want to be bound to the agreement and that if the CFMEU confirm that this morning in a fashion, which is consistent with section 170M(3) of the Act, then the employer would have no objection to the CFMEU being bound?

PN16

MR HOWARD: Providing the agreement wasn't altered in any way. The circumstances - - -

PN17

THE SENIOR DEPUTY PRESIDENT: I don't have the capacity to alter the agreement, Mr Howard.

PN18

MR HOWARD: I understand that, your Honour, but I am just - we have no problem with the CFMEU - if they want to become a party to the agreement we don't have a problem with that.

PN19

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN20

MR HOWARD: But I might just - on the history side of it, as I said early in 2003 there was correspondence between Australian Seating Systems Proprietary Limited and the CFMEU and there is also the notice of intention of a bargaining period. There was also a document signed off on 29 January 2003 by the employees and the company with the union as a party to the agreement, but the union refused to sign the agreement so the processes recommenced. Your Honour may remember these circumstances going back that far. It was one of the six involved with the scaffold company.

PN21

THE SENIOR DEPUTY PRESIDENT: Lest there be any doubt, Mr Howard, I don't but you may proceed.

PN22

MR HOWARD: I may refresh your memory as to the scaffold company situation where the documents are all before the Commission and the union refused to sign those documents and the process recommenced. That's exactly what happened in this case, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Can I then go to ask whether or not you could make available to me a copy of the notice of intention issued by the employer pursuant to section 170LK(2) of the Act?

PN24

MR HOWARD: I am about to do that, your Honour, about to hand up to you a copy of all the letters forwarded to the employees.

EXHIBIT #ASS1 COPY OF ALL LETTERS FORWARDED TO EMPLOYEES

PN25

THE SENIOR DEPUTY PRESIDENT: Just bear with me for one moment, please Mr Howard. Those documents were given to all of the employees or sent to all of the employees? I ask that question - - -

PN26

MR HOWARD: They were actually given to all of the employees.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. I ask that question because it appears the vote occurred on the fifteenth day. Is that correct?

PN28

MR HOWARD: Sorry, your Honour?

PN29

THE SENIOR DEPUTY PRESIDENT: It appears the vote occurred on the fifteenth day after receipt of those letters.

PN30

MR HOWARD: That's correct, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN32

MR HOWARD: Yes. The fax up the top is sending the documents to myself, where you can see up the top that fax transmission is a transmission to the Master Builders.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Am I to understand that there was no request for union involvement in accordance with the advice given in the statutory declarations?

PN34

MR HOWARD: That's exactly my understanding, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Am I to further understand that the document that I have before me today for certification is in identical terms to that provided to the employees on 20 January?

PN36

MR HOWARD: That is correct, your Honour. There were no changes to the document from the time it was issued to the employees concerned.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Howard, I have no further questions about the process whereby the agreement was reached, unless there is something else you want to tell me in that regard.

PN38

MR HOWARD: No, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: I do want to clarify, however, with Mr Soar a number of issues. Mr Soar, are you here today as one of the employees with whom the employer negotiated this agreement, or did you have a special role as an employee representative to play in the negotiation process?

PN40

MR SOAR: Your Honour, I was one of the employees there, I suppose.

PN41

THE SENIOR DEPUTY PRESIDENT: I see, so the agreement was negotiated with the employees collectively.

PN42

MR SOAR: Correct.

PN43

THE SENIOR DEPUTY PRESIDENT: Can you confirm to me that on 20 January you received advice consistent with the information provided to me this morning?

PN44

MR SOAR: Yes, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: And that the agreement was not changed consequent upon that advice?

PN46

MR SOAR: Yes, it wasn't changed, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: Are you aware of whether anybody sought that the union be involved, or a union be involved, in the negotiation process?

PN48

MR SOAR: In 2003 the union was sought, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, but in terms of the period from 20 January to 4 February was there a request that you were aware of for the union to be involved?

PN50

MR SOAR: No, your Honour, that's this year.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Soar. Mr Harris, notwithstanding my questions about the status of the CFMEU, is there any comment you want to make about the agreement negotiation process on the information that you might have?

PN52

MR HARRIS: No, I was happy with what the foreman had said and would now tie my answer with what Mr Howard said was - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, it's probably best that you do so now.

PN54

MR HARRIS: Okay, yes, there was a previous agreement that had happened. We had no knowledge of this agreement. So we're not - apparently, I haven't been able to see it - but we got no things in there that says we're bound or we're mentioned in there and that. So I'll leave it to the employer and the foreman and we will just listen on.

PN55

THE SENIOR DEPUTY PRESIDENT: I see. Notwithstanding that the CFMEU is not mentioned in the agreement, there still exists the capacity for the CFMEU to request that it be bound to the agreement provided you comply with the pre-conditions for that which are set out in section 170M of the Act. So just to make those clear, section 170M of the Act, in particular section 170M(3) of the Act, says that:

PN56

If the application for certification states that the application is made under Division 2 -

PN57

and this application does -

PN58

and in accordance with section 170LK a valid majority of persons made the agreement with the employer -

PN59

and the advice to me indicates that to be the case -

PN60

and before the agreement is certified an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement -

PN61

which hasn't happened to date -

PN62

and that organisation satisfies the Commission that it has at least one member whose employment will be subject to the agreement, and whose industrial interests the organisation is entitled to represent in relation to work that will be subject to the agreement, and who requested the organisation to give the notification, the Commission must, by order, determine the agreement binds the organisation.

PN63

So it's not essential that the agreement reference the CFMEU but I should say this agreement does reference the CFMEU in a number of regards. It recognises the CFMEUs capacity to represent employees. It does contain a couple of other references, if I recall it correctly, to the CFMEU. None of those obligate the CFMEU to do anything except insofar as its rules are concerned, but on the basis of the advice you have given me I will take it that the CFMEU are not on this occasion seeking that they be bound to the agreement.

PN64

MR HARRIS: The 170M, I've studied that very hard because I have been taking it up of late and I do know what it says. The only problem I have in this situation, because we are doing it in other cases, is we haven't seen a copy of the agreement to know about our being bound. We do have members there but with the notice of yesterday we haven't had anything to do, but if we're in there I just can't commit us to be bound by a document I haven't seen at all.

PN65

If we get the time to see it it could be a different kettle of fish but that period of time will end in a moment when you make the decision. So I cannot be bound, or can't ask to be bound or written into something I haven't seen but if we get that chance I can give you another answer but at the moment, without seeing anything, again Mr Howard, the employer and the foreman here, I'll have to go along and just listen. Thank you.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, I will note that, thank you. Mr Soar, I'm now going to ask Mr Howard a couple of questions about the agreement. My questions won't invite him to rewrite the document. They simply go toward clarifying the intention of the parties. If Mr Howard gives an answer with which you disagree, please hop up and tell me, or indeed, if you want to add something to it.

PN67

MR SOAR: Yes, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: You don't have to stand up now. Mr Howard, my understanding of Australian Seating Systems Proprietary Limited is that they are an erector of temporary seating arrangements. Is that correct?

PN69

MR HOWARD: That's correct, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Hence the coverage referenced in clauses 1.5 and 1.6.

PN71

MR HOWARD: That's correct, your Honour, yes.

PN72

THE SENIOR DEPUTY PRESIDENT: Clause 2.4 relates to demarcation disputes. It references the ACTU demarcation disputes procedure. It gives rise to two types of question. Firstly, am I to understand that that disputes procedure is documented, that it's readily available and that the parties accept that it may change over the life of the agreement?

PN73

MR HOWARD: That's my understanding, your Honour, yes.

PN74

THE SENIOR DEPUTY PRESIDENT: Secondly, and of a more fundamental nature, am I to understand that the provisions of 2.4 are in fact simply a statement of intention given that there are no unions that are party to this agreement that could necessarily be bound by any demarcation procedure?

PN75

MR HOWARD: That's correct. It's a statement of intention, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Thank you. I'm going to interrupt my questions. I note that Mr Soar doesn't have a copy of the agreement. Mr Harris doesn't have a copy either. I'll collect those copies when these proceedings have concluded. The provisions of clause 3.8 reference a work practices review. Am I to understand that will occur over the life of the agreement?

PN77

MR HOWARD: It will, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: The provisions of clause 3.10 reference variously the company's occupational health, safety and welfare policy and the construction industry drug and alcohol policy.

PN79

MR HOWARD: That's correct, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Am I to understand that that drug and alcohol policy reference is intended to refer to the policy as it might be amended but that both policies are documented and readily available to all employees?

PN81

MR HOWARD: They are readily available, your Honour. The construction industry drug and alcohol policy is a peer-approved policy that's adopted on the sites by the employees concerned.

PN82

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 8.2 on page 28 refers to the development of a training program. Am I to understand that the parties intend that to occur over the life of the agreement?

PN83

MR HOWARD: They do, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: Clause 9.2.3 on page 30 refers to the provisions of the industry agreed procedure on inclement weather extremes of heat. Am I to understand that reference is to an agreement reached between the CFMEU and the Master Builders Association, but more particularly, that that agreement is documented in a form of a coloured brochure available to all employees, wherever they may be working?

PN85

MR HOWARD: That is correct, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: I note the reference is to that policy as amended, so who knows, you may rewrite it one day.

PN87

MR HOWARD: Well, we may.

PN88

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howard.

PN89

MR HOWARD: Thank you, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr Soar, am I to take it that you have no objection to anything Mr Howard said and you agree with his comments?

PN91

MR SOAR: Yes, sir.

PN92

THE SENIOR DEPUTY PRESIDENT: Very well. On the basis of the information provided to me today, I am satisfied that the agreement was reached through a process consistent with that detailed in section 170LK of the Act. The agreement itself meets the requirements of the Act insofar as it is of a duration envisaged by the Act. It contains the necessary dispute resolution procedure. It does not contain provisions which are contrary to the Act and it meets the requirements of the no disadvantage test. I will certify the agreement with effect from today.

PN93

The certificate giving effect to that order will be forwarded out to the parties within the next few days. You will note that it will identify the various clauses about which I've sought clarification but it will not detail the answers that Mr Howard has given me because those are recorded on the transcript. I congratulate the parties on reaching this agreement and hope it works for both the employees and the employer. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [9.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASS1 COPY OF ALL LETTERS FORWARDED TO EMPLOYEES PN25