AG2005/5499, Transcript of Proceedings [2005] AIRCTrans 1863 (7 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12624-1

COMMISSIONER SIMMONDS

AG2005/5499

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & PREMIER PLUMBING SERVICE (VICTORIA)
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5499)

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & MILAT’S ROOFING SERVICE
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5598)

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & ASTRO VAC (AUST) PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5600)

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & GEELONG ROOFING PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5603)

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & GRANT BEVAN PLUMBING PTY LTD
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5500)

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & SILTECH MECHANICAL SERVICES
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5501)

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-PLUMBING DIVISION VICTORIAN DIVISIONAL BRANCH & TIP TOP PLUMBERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5502)

MELBOURNE

12.05AM, FRIDAY, 26 AUGUST 2005

PN1

MR J COONEY: For the CEPU Plumbing Division.

PN2

THE COMMISSIONER: Yes thank you, Mr Cooney. I notice there is no appearance for any of the employers in this matter. Yes Mr Cooney?

PN3

MR COONEY: Commissioner, these are applications of a new, if I can describe them as that, new generation of agreements for the plumbing industry to replace the 2002, 2005 agreement. The union has forwarded a submission to the Commission - - -

PN4

THE COMMISSIONER: Well hang on, one step at a time. You have got a statutory declaration from Mr Setchers which seeks to correct some of the information contained in the declarations that accompany the application. I think there is two steps there. The first is to the extent necessary I have to grant relief from the rules because the declarations are not the current ones, is that right?

PN5

MR COONEY: Correct, Commissioner.

EXHIBIT #C1 STATUTORY DECLARATION
EXHIBIT #C2 WRITTEN SUBMISSION

PN6

MR COONEY: Thank you, Commissioner. There was a question raised with the union as to whether the applications were valid in the context of clause 16. A submission on clause 16 and whether that clause pertains in view of the majority decision in AAE v TWU, a majority decision of Senior Deputy President Harrison and Commissioner Smith and the union would seek to rely on the submissions that has been supplied to the Commission as to whether that clause 16, the contract of employment clause is valid and therefore the application - - -

PN7

THE COMMISSIONER: Let me just ask you about clause 16. It seems to me the phrase sub-letting of individual projects is referring to the use of contractors who may or may not be employing people. They may be individual contractors of service.

PN8

MR COONEY: Correct, Commissioner.

PN9

THE COMMISSIONER: And the effect of that is that unless the work is not normally performed by the enterprise there is no contracting.

PN10

MR COONEY: Yes that would be correct.

PN11

THE COMMISSIONER: So that is the correct characterisation clause 1. So that any work that is normally performed by the enterprise could not be carried out by a contractor.

PN12

MR COONEY: Yes Commissioner, I have to concede that point.

PN13

THE COMMISSIONER: That is the effect of the clause.

PN14

MR COONEY: That would be the effect in read with - - -

PN15

THE COMMISSIONER: Okay. Well notwithstanding what I think is an excellent submission on that point, Mr Cooney, I think it actually tips over the line that you refer to in the course of the submission and puts itself into a - is it Cocks' situation.

PN16

MR COONEY: Cocks and elaborate - - -

PN17

THE COMMISSIONER: Rather than a Moore type situation - - -

PN18

MR COONEY: Exactly, Commissioner.

PN19

THE COMMISSIONER: - - - the High Court and on that basis I don't believe that clause 16 is a matter that pertains to the employer/employee relationship and of course that leads to the conclusion inevitably I am afraid that I don't have before me a valid application.

PN20

MR COONEY: Thank you, Commissioner.

PN21

THE COMMISSIONER: Which I think effectively disposes of your item 39 and 40 submission.

PN22

MR COONEY: Yes Commissioner.

PN23

THE COMMISSIONER: With respect to his Honour, Vice President Ross because Ballantyne was announced before Schefenacker. I am happy to reduce those reasons to writing - - -

PN24

MR COONEY: That would be appreciated, Commissioner.

PN25

THE COMMISSIONER: - - - and provide them. I am not quite sure when but I will do it as soon as possible and on that basis I have to dismiss the applications for certification that are before me and if there is nothing further?

PN26

MR COONEY: Nothing further on that one.

PN27

THE COMMISSIONER: The proceedings are adjourned. Thank you, Mr Cooney, and thank you, I might also thank you for your submissions. They make life a lot easier.

PN28

MR COONEY: Yes.

PN29

THE COMMISSIONER: If harder for you.

<ADJOURNED INDEFINITELY [12.23PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 STATUTORY DECLARATION PN5
EXHIBIT #C2 WRITTEN SUBMISSION PN5