C2005/2755, Transcript of Proceedings [2005] AIRCTrans 1056 (2 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11364-1

SENIOR DEPUTY PRESIDENT LACY

C2005/2755

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
BAULDERSTONE HORNIBROOK PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/2755)

SYDNEY

4.30PM, THURSDAY, 21 APRIL 2005

PN1

MR B BODKIN: I appear for the CFMEU.

PN2

MR V GOSTENCNIK: I appear for Baulderstone Hornibrook.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Yes, Mr Bodkin?

PN4

MR BODKIN: Your Honour, this notification arises from a letter of demand and a log of claims which the CFMEU have served upon the company. The claims concern rates of pay and conditions of employment for persons employed on building, construction and maintenance work within the territory of Christmas Island. The particulars of the claims and the service are set out in the papers which the union has filed within the Commission. In particular I refer to the statement of Mr John Sutton, the National Secretary of the union of construction and general division of the union on 5 April this year, where at paragraph 3, he recites that the union on 22 March 2005, under the authority of the union in accordance with its rules, posted by registered mail, a letter of demand and log of claims to the company.

PN5

The company duly received the claims and has not agreed. Accordingly the union today will be seeking that the Commission make a formal finding of dispute and in the event that the Commission does so, I will make a short submission as to where the union sees the matter going. In particular as to how we see the matter being at least settled in part in the immediate future.

EXHIBIT #CFMEU1 LOG OF CLAIMS
EXHIBIT #CFMEU2 LETTER OF DEMAND
EXHIBIT #CFMEU3 REGISTERED POST LODGMENT DOCUMENT
EXHIBIT #CFMEU4 AFFIDAVIT OF SERVICES

PN6

THE SENIOR DEPUTY PRESIDENT: Yes. Did you want to say anything else at the moment, Mr Bodkin?

PN7

MR BODKIN: Yes, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Sorry, did you wish to say anything else at the moment?

PN9

MR BODKIN: No, not at this stage.

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Gostencnik?

PN11

MR GOSTENCNIK: Yes. Thank you, your Honour. The company doesn't oppose the making of a dispute finding, subject to some matters that I rose with my friend concerning the subject matter of the log in two items in particular which I have drawn to my friend's attention. That is claim for the (iv) which concerns giving a preference to former employees as well as the claim number 27 which deals with the training level which in our submission do not pertain to the requisite relationship therefore cannot be the subject matter of a dispute finding. But I have said to my friend that the Commission could make a dispute finding in respect of the matters which are in the log save for those two items. If that were the case, we would have no objection to such a finding being made.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. All right, Mr Gostencnik. Mr Bodkin, there is a common rule award with construction and building and construction on Christmas Island isn't there?

PN13

MR BODKIN: That is so, yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Why do we need another award on the island?

PN15

MR BODKIN: Well - - -

PN16

THE SENIOR DEPUTY PRESIDENT: We haven't got to that stage yet, I know, but I am just wondering where we are going - - -

PN17

MR BODKIN: In the event that the dispute is found, the union would be seeking - and we wouldn't expect this to happen today because there is another union that has an interest. But the union would be seeking eventually, an order varying the UCIW Christmas Island Building and Construction Award 2004 and that variation would be to clause 6, parties bound. It would include the CFMEU as a party. Now, that would involve two prerequisite things. One is the finding of the dispute in relation to the CFMEU log, and secondly the relisting of the dispute on which the UCIW Award was made, that is C number 21743 of 1992, and perhaps a joint of the two disputes and in settlement or in part settlement of those disputes an order varying the award. In fact, I have with me a draft order which I don't expect be made today.

PN18

THE SENIOR DEPUTY PRESIDENT: No, I don't want to - - -

PN19

MR BODKIN: I would expect that the UCIW would be given an opportunity to be heard, but that is a procedure that was followed in the Northern Territory in two cases that the CFMEU was involved. One was a variation to the Building Materials and Quarrying Industry's Northern Territory Award 1992, wherein PR900025, Commissioner Eames on 3 January 2001 varied that award so as to make the CFMEU a party in addition to the existing union party, the LHMU. A somewhat similar thing happened before that in relation to the Building and Construction Northern Territory Award where in settlement of a new dispute created by the CFMEU and the LHMU, the Commission made a new award in the territory to which both unions were party.

PN20

In both of those cases that I have mentioned, your Honour, those procedures survived Full Bench appeals. It seems to me, Commissioner that - your Honour, that that would be the most appropriate way to deal with the question of award coverage for the CFMEU within the territory of Christmas Island. So, whilst the claims before you relate to claims which the union, over a period of time hopes to achieve, the union would see, in the short term at least, in the immediate future, that those claims be part settled by joining or by making the CFMEU a party to the UCIW Award.

PN21

THE SENIOR DEPUTY PRESIDENT: All right. Thanks, Mr Bodkin. Mr Gostencnik, if I made a finding of dispute in so far as the matters in the claim ..... in section 89A and pertain to the employment relationship, would that satisfy your concerns about those two issues?

PN22

MR GOSTENCNIK: I think the first point is unnecessary. But I would be content with that. Certainly in so far as they pertain to the relationship, I would be content with that.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well I will make a finding in those terms and the parties to the dispute, the CFMEU and sorry, it is Baulderstone Hornibrook, is that the correct name of the company?

PN24

MR GOSTENCNIK: Yes, sir.

PN25

THE SENIOR DEPUTY PRESIDENT: As I understand it Baulderstone Hornibrook employ employees throughout Australia, don't they?

PN26

MR GOSTENCNIK: We do sir, yes.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. The dispute relates to employment of employees in the territory of Christmas Island or sorry, yes that is right, carried out, construction and maintenance work carried out within the territory of Christmas Island. All right? Anything else?

PN28

MR BODKIN: No your Honour, but perhaps we would foreshadow that after the parties had conferred, we may well be seeking a relisting of this dispute together with the UCIW dispute that I mentioned earlier for the purpose of the foreshadowed application to the area.

PN29

THE SENIOR DEPUTY PRESIDENT: Very well. I have just returned from Christmas Island last week and I do have some concerns, well not concerns but I am anxious to try and avoid any demarcation issues arising on Christmas Island and to the extent that some measures can be put in place to avoid that, then I would like to try to do that.

PN30

MR GOSTENCNIK: Your Honour's concerns raised yesterday were noted
by - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Oh right. Were you involved in that?

PN32

MR GOSTENCNIK: No, but I have been briefed by on it.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Thanks very much. Okay. Very well. I direct the parties to confer and we will await your further notification for listing. The matter is adjourned.

<ADJOURNED INDEFINITELY [4.41PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 LOG OF CLAIMS PN5
EXHIBIT #CFMEU2 LETTER OF DEMAND PN5
EXHIBIT #CFMEU3 REGISTERED POST LODGMENT DOCUMENT PN5
EXHIBIT #CFMEU4 AFFIDAVIT OF SERVICES PN5