AG2004/193, Transcript of Proceedings [2004] AIRCTrans 935 (17 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 9611
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG2004/193
AG2004/194

APPLICATION FOR CERTIFICATION
OF AGREEMENTS

Application under section 170LJ of the Act
by EVS Guards Australia Pty Limited and Another
for certification of the EVS Guards Australia
Pty Limited/CFMEU Enterprise Agreement expiring
31 October 2005

SYDNEY

9.15 AM, THURSDAY, 26 FEBRUARY 2004

PN1

THE VICE PRESIDENT: Could I have the appearances, please?

PN2

MR S. MARSHALL: If the Commission pleases, I appear on behalf of the Construction Forestry Mining and Energy Union, New South Wales branch.

PN3

MR I. GEMMELL: If the Commission pleases, I appear on behalf of the Construction Forestry Mining Energy Union, New South Wales branch.

PN4

THE VICE PRESIDENT: Would there be any objection if I deal with both matters together?

PN5

MR MARSHALL: No, your Honour.

PN6

THE VICE PRESIDENT: I note you have also got an authority to appear on behalf of the employer that's responded to both agreements. Now, am I right in thinking that agreement AG193 covers employees engaged in the provision of security services and AG194 covers employees engaged in traffic control working on building and construction sites, is that right?

PN7

MR MARSHALL: That is correct, yes.

PN8

THE VICE PRESIDENT: I might just go through the statutory test before I deal with some specific questions. I note in respect of each application that it has been made under Division 2 of Part VIB of the Act and that both applications were lodged within the 21 day time period. Is the employer party to each of these agreements a constitutional corporation within the meaning of the Act?

PN9

MR MARSHALL: Yes, it is.

PN10

THE VICE PRESIDENT: And do you say that each agreement is about matters pertaining the employment relationship?

PN11

MR MARSHALL: Yes, we do.

PN12

THE VICE PRESIDENT: And each agreement applies to part of a single business, is that right?

PN13

MR MARSHALL: Yes, part of the business, it's the same company.

PN14

THE VICE PRESIDENT: But it's the part of the business that provides either security services or traffic control work on building sites, is that right?

PN15

MR MARSHALL: Yes, that's correct.

PN16

THE VICE PRESIDENT: Does your organisation have at least one member employed in each part of that business whose employment will be subject to the agreement?

PN17

MR MARSHALL: Yes, we do.

PN18

THE VICE PRESIDENT: I'll come back to your coverage in a moment. I note what is said about the consultation process. In respect to each of the agreements was a vote taken of the employees employed at the time whose employment will be subject to the agreements about whether they approve the agreement?

PN19

MR MARSHALL: Yes, votes were taken on 5 February this year, your Honour.

PN20

THE VICE PRESIDENT: Did each employee employed at that time have an opportunity to cast a vote?

PN21

MR MARSHALL: Yes, your Honour.

PN22

THE VICE PRESIDENT: And were a majority of the ballot votes cast in favour of approving the agreement?

PN23

MR MARSHALL: Yes, both votes were unanimous, your Honour.

PN24

THE VICE PRESIDENT: I'll come back to the no disadvantage test. There's a dispute settlement clause in clause 18 in both agreements which provides that unresolved matters shall be formally submitted to the Commission. Is it the intention of the parties that if a matter is submitted to the Commission under that clause it will be dealt with by means of conciliation and where necessary arbitration?

PN25

MR MARSHALL: Yes, that's correct, your Honour.

PN26

THE VICE PRESIDENT: I note the agreements specify a nominal expiry date being 31 October. In relation to termination of employment, are any provisions of the agreement inconsistent with a provision of Division 3 of Part VIA, an order by the Commission under that Division or any injunction granted or order made by a court under that Division?

PN27

MR MARSHALL: No, your Honour.

PN28

THE VICE PRESIDENT: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead me to refuse to certify the agreement?

PN29

MR MARSHALL: No, your Honour.

PN30

THE VICE PRESIDENT: In relation to discrimination, do any provisions of the agreements discriminate against an employee whose employment would be subject to them because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN31

MR MARSHALL: No, your Honour.

PN32

THE VICE PRESIDENT: Do either of the agreements contain an objectionable provisions within the meaning of section 170LU subsection 2A?

PN33

MR MARSHALL: No, your Honour.

PN34

THE VICE PRESIDENT: All right. I'll just go through the issues in relation to each agreement. If we look at 193 of 2004, the statutory declaration says that the relevant award underpinning the agreement, as it were, for the no disadvantage test is the NBCIA but clauses 4 and 5 of the agreement refer to the Security Industry State Award. In fact, if I can take you to the agreement, clause 4 says:

PN35

Under no circumstances are they to perform any work covered by the Federal Construction Award.

PN36

So I don't see how the stat dec can be right. How can the NBCIA apply in circumstances where the agreement actually excludes it. You have also got clause 5 which says that the relevant award is the Security Industry State Award, not the NBCIA. There's a similar issue in relation to the other agreement, the stat dec says that the Security Industry Award is the relevant award but the agreement says it's the NBCIA. What I'm not clear about in relation to both of them, you've ticked the box that there's no reductions at all, I just want to be clear that - you're representing the employer?

PN37

MR E. VLASSOV: Yes, Eugene Vlassov from EVS Guards.

PN38

THE VICE PRESIDENT: Thank you. I've gone through the statutory test questions. I'm just asking a question about which award is the one that applies to the employees in each agreement - I'll just finish on this - so I'm not clear about that and there seems to be some confusion in the stat decs versus the agreement and nor am I clear about, for example, in 193 I don't know whether - it sets out the wages, I'm not sure whether they equate to a security officer grade 1 in the State Award and what the current hourly rate is under that award and also whether these people get all the loadings under the State Award in relation to hours of work. In AG 194, there are no wage rates that are specified for a traffic security officer, I think it's the construction worker level 1 because, and I'm only saying this from knowledge of the construction industry, that would normally be the one that would deal with traffic control work on a building site and the rate there is $17.31.

PN39

In both cases, there are two employees who are casuals, I don't know what loading they are going to get or where it's going to come from. So those are the nature of the questions. I'll come back in a moment as to how we might deal with this. The other issue is the question of coverage and section 170LJ provides that the organisation of employees party to the agreement must be entitled to represent the industrial interests of the people who are working in this case in the part of the business and I just had a question about that as to coverage of this sort of work under the CFMEUs rules.

PN40

In a nutshell, what I'm proposing is I want you to file some material that deals with those issues. In respect of each agreement, what is the relevant award and if it's the State Award, what are the comparative hourly rates under the agreement and the State Award and how do you deal with the various loadings under the State Award - do these employees get those or don't they, casual loading as well as the various loadings for different hours; for example, under the State Award I think non-permanent night work attracts a loading of 21.7 per cent, permanent night work attracts 30 per cent. It's not clear to me because of the way the stat decs are written versus the agreement what the position is. The second issue is that I want something that deals with the eligibility issue, that is, the coverage of the employees by the CFMEU.

PN41

I don't anticipate having another hearing in relation to it. As to all the other statutory tests, I'm satisfied that the agreement meets those. The two reservations I have, I don't put it higher than I just don't have the information, are the coverage question and the no disadvantage test issue, so I'm seeking further information about those. How soon do you think you can get that to me?

PN42

MR MARSHALL: Do you want it written or perhaps verbally?

PN43

THE VICE PRESIDENT: No, I think I want it in writing because I want it to go on the file.

PN44

MR MARSHALL: All right. Say 10 days, your Honour?

PN45

THE VICE PRESIDENT: Okay, well, by the end of next week, and if you can confer with Mr Vlassov in relation to it so you've had an opportunity to look at what the union's putting in and you agree with it, then I'll make a decision based on the material that's filed. If you file before then, well, I'll make the decision before then but I'll wait to hear from you. Nothing further?

PN46

MR GEMMELL: You wouldn't want me to speak on behalf of what you've just raised, your Honour, or just leave it to the writing?

PN47

THE VICE PRESIDENT: Well, I'm going to want to see the eligibility rule anyway so by all means you can but you'll confirm it in writing in any event, not that I don't want to hear you, Mr Gemmell, but it will be repeating it, that's all. I want to give you a chance to think through the questions. Nothing further? Well, I'll adjourn. I don't intend to have a further hearing in relation to it. I'll determine the issue on the basis of the material that is in front of me and the material that is to be filed by the end of next week and I'll issue a decision shortly after that. I won't proceed to issue a decision which is adverse to your application without raising any further issues with you but at this stage those are the only two matters I have and if you can deal with those then I ought to be able to certify the agreement as quickly as practicable after receiving the information. Thank you. I'll adjourn.

ADJOURNED ACCORDINGLY [9.28am]