AG2004/8649, Transcript of Proceedings [2005] AIRCTrans 198 (31 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10125

DEPUTY PRESIDENT IVES

AG2004/8649

s.170LL- greenfields agreement (division 2)

APPLICATION BY THE AUSTRALIAN WORKERS' UNION - VICTORIA BRANCH AND ANOTHER
(AG2004/8649)
Asphalt and Bitumen Industry (Southern States) Award, 1999

MELBOURNE

10.01AM, TUESDAY, 18 JANUARY 2005

PN1

MR C WINTER: Appearing on behalf of the Australian Workers' Union and with me is MR J BLANDTHORN.

PN2

MR D KAVATHAS: I appear for Challenge Recruitment.

PN3

THE DEPUTY PRESIDENT: Yes. Go ahead, Mr Winter.

PN4

MR WINTER: Thank you. Your Honour, this is an application made in accordance with section 170LL of the Act, an agreement between Challenge Recruitment Limited Victoria - Challenge Recruitment Pty Ltd, and the Australian Workers' Union. The company is in the process of setting up some new operations to cover asphalt workers and supply labour to the asphalt industry here in Victoria. The AWU negotiated this agreement with the company. There have been a few changes to it, because the original one did not comply with - we think with Electrolux - so we made some changes to it, and then submitted it prior to Christmas. The agreement will only cover asphalting in the State of Victoria. I would rely on the statutory declaration that has been completed by Mr Griece. Unless you have questions in relation the agreement - I do not know if there was any Electrolux issues in it, I went through it this morning and I spoke to the organiser concerned, and we believed, hopefully, we got rid of them all prior to lodging it.

PN5

THE DEPUTY PRESIDENT: No. I do have some issues, Mr Winter, but they do not relate to 170LI of the Act. Do you want me to raise those with you now?

PN6

MR WINTER: Yes, it might be appropriate.

PN7

THE DEPUTY PRESIDENT: First of all, just a confusion, I note the title page of the agreement says that Challenge Recruitment of Victoria Agreement 2004 to 2006. Now, if you turn onto the title, over the page, to title of the Agreement, it refers to:

PN8

This agreement shall be known as the Challenge Recruitment Customer Practice Victoria Agreement 2003.

PN9

MR WINTER: Yes. That should be changed. Clearly it is an error, typo, I can get you a replacement page. We actually started discussing this with the company in 2003, but over the period of time they had not set up the operations et cetera. We should have made that change to the - - -

PN10

THE DEPUTY PRESIDENT: So what do you say is the title of the agreement?

PN11

MR WINTER: It should be the Challenge Recruitment Customer Practice Victoria Agreement 2004 to 2006

PN12

THE DEPUTY PRESIDENT: Right. Well, that is an ambiguity or uncertainty that I believe can be remedied by my exercising a discretion in respect of 111(1)(q) to remedy that. It is not a huge issue. More importantly, if you turn to the rates, the appendices at the back of the agreement. I do not understand this, Mr Winter. First of all, if I look at appendix A, the first page of appendix A, it says that:

PN13

Employees will be paid as per client practice, where client ordinary time hourly rates are less than the schedule below, the following rates shall apply.

PN14

It then says:

PN15

18(a) Employees engaged in spray sealing and asphalt laying

PN16

And goes forward then to layouts and rates. And if I look at the rate per week, inclusive of industry allowance for a trainee, for example, or even if I follow down that page, those rates are in fact less than the current award rate. On the basis of that page, this agreement would not meet the requirements of a no disadvantage test. If I then turn over the page, it says from 1 July 2004 and nominates a different set of rates, which would in fact meet the requirements of the no disadvantage test, because they do - they are greater than that provided by the award. Sorry, just let me finish. If I then turn the page again, and go to the next page, it gives me another set of rates. Now if these are all the same people, which they would appear to be, or the same classifications which they appear to be, then I am confused, Mr Winter, as to what we are going to be paying these people.

PN17

MR WINTER: If I could have one moment.

PN18

THE DEPUTY PRESIDENT: Yes, sure.

PN19

MR WINTER: I can easily explain it.

PN20

THE DEPUTY PRESIDENT: Yes, well you will need to.

PN21

MR WINTER: The appendix A, as you might recall, and you will notice from the heading of the agreement, we actually started talking about this agreement in 2003. Now, those rates headed appendix A, were 2003 rates. You then go to the next page, which is July 2004 rates.

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MR WINTER: The next page should read, in fact, July 2005 rates. There was clearly a typo. It should have read from 1 July 2005.

PN24

THE DEPUTY PRESIDENT: Right.

PN25

MR WINTER: That is the confusion, and I can provide you with a clean copy of that. That clearly - they started negotiating this back in 2003, the company had not set up in Victoria, so negotiations ceased. They then commenced negotiations in 2004. Then, clearly what has happened is the organiser has left that appendix A page unchanged. But that should not be the case, it clearly should be wage rates from 1 July 2004, starting at 474 and then going down to 628. And then wage rates on the next page, from 1 July 2005 as 293.20 and then going to 253.82.

PN26

THE DEPUTY PRESIDENT: Sorry, 653.82.

PN27

MR WINTER: 653.82. And I can make - - -

PN28

THE DEPUTY PRESIDENT: So, the rates that would currently apply would be the rates on the second page, is that correct?

PN29

MR WINTER: Correct.

PN30

THE DEPUTY PRESIDENT: That is correct?

PN31

MR WINTER: That appendix A rate, that page needs just to be removed completely.

PN32

THE DEPUTY PRESIDENT: Well, I do not know that it is not a bit late for that, because it changes the form of the agreement, Mr Winter, but I, as this matter is a matter that impacts upon whether the agreement passes a no disadvantage test, I am in a position to take an undertaking from you with respect to this, and I would need a requirement from Mr Kavathas - an undertaking rather, from Mr Kavathas as well in the same terms, which would essentially be that the rates to apply, with effect from certification of the agreement, are those rates as nominated on the second page of appendix A, being the trainee rate of 474.25, the general hand plant operator level 1 rate of 553.52, the crew team member plan operator level 2 rate of 592.80 and the - I assume that means crew team specialist plant operator level 3 rate, rather than cream team - of $628.68, and that, with effect from 1 July 2005, the rates to apply to those same classifications that I have just read out, will be those outlined on page 3 of appendix A, and they are, in order, starting from trainee 493.20, 554.32, 616.51 and 653.82. So, before I can certify this agreement I will want that provided to me in the form of an undertaking, Mr Winter.

PN33

MR WINTER: Verbally or written undertaking. I can give it - - -

PN34

THE DEPUTY PRESIDENT: Well, you can give it to me as a verbal undertaking. If I get that from both of you as a verbal undertaking then I will include it in the preamble to the certification of the agreement at least paraphrased in such - - -

PN35

MR WINTER: Clearly that is the undertaking. That was the intent of the parties, that page should have been removed.

PN36

THE DEPUTY PRESIDENT: Yes. Now, I do have another issue that I am not sure - well, I am unable to certify until I can get this one fixed up. I think it is fixable, but probably not here and now. If you go to - do you have a copy of the statutory declarations that have been provided in respect of this?

PN37

MR WINTER: Yes.

PN38

THE DEPUTY PRESIDENT: 1.4 on the statutory declaration states, or says, requests in fact, the person filling out the form to state whether the business is a new business that the employer proposes to establish, and that the agreement is made before the employment of any persons who is employable be subject to the agreement - a greenfields agreement. I do not believe that, on my reading of that question, the answer given in the column sufficiently answers the question, if you understand what I mean. The answer provided says the agreement is a greenfields agreement. Well, the question actually says to state whether the business is a new business, and that the employer proposes to establish, and that the agreement is made before the employment of any persons whose employment will be subject to the agreement. That is what I would stated in the statutory declaration.

PN39

MR WINTER: I think what the organiser has done, in relation to this one, is if you go through the standard statutory declaration, there is two boxes, and he has removed one of them, and maybe, at the end of the day, I suppose that the actual format needs to be changed on the Commission's website too.

PN40

THE DEPUTY PRESIDENT: Yes, well perhaps. But that is not - - -

PN41

MR WINTER: But, it clearly is a new business. In fact, it's a new - - -

PN42

THE DEPUTY PRESIDENT: I accept that may well be the case, Mr Winter, but it is not something that I can simply accept on the basis of an assertion from the bar table. There is a question asked in the statutory declaration, it is not answered to my satisfaction, I would need that question answered properly in a statutory declaration. So, I would need a new statutory declaration provided by both parties that sufficiently answers that question.

PN43

MR WINTER: I will get a new one completed and signed off by the organiser within, by the end of the week.

PN44

THE DEPUTY PRESIDENT: Right. And that would also be the same,
Mr Kavathas as far as the company is concerned.

PN45

MR WINTER: Griece - - -

PN46

THE DEPUTY PRESIDENT: . Because the same answer has been given on the company's statutory declaration. Now, just so that I am clear on that, the statement in that column should be whether or not this is a new business, number one, that the employer proposes to establish, and number two, that the agreement is made before the employment of any persons whose employment will be subject to the agreement. I do not believe that simply the words bracketed in the bottom of that question responding to those bracketed words is sufficient for me to ascertain that one, it is a new business, and two, that it is a business that does not have employees at the time the agreement was made. So, I would want you to give me a statutory declaration to that effect.

PN47

Now, subject to me being provided with a statutory declaration from both parties, which provides me then with that certainty, and subject to the provision of an undertaking in terms similar to that which I have already foreshadowed, I do not have any other issues. As I have already stated, I will amend, subject to being provided with another page 2 for the agreement, that is the one that contains currently the title of the agreement and the arrangement of the agreement, the title of the agreement to the Challenge Recruitment Customer Practice Victoria Agreement 2004 to 2006

PN48

I accept that that is a typographical error and I am satisfied that it is a minor issue that can be corrected by me exercising a discretion under section 111(1)(q) of the Act. So all that remains is for an undertaking to be given here by both parties, and I will incorporate that undertaking in the certificate when and if it is issued, and its issuance will be subject to being provided with statutory declarations appropriately and properly completed, particularly in respect to 1.4 on the statutory declaration.

PN49

MR WINTER: Do you want us to remove that appendix A page that is not relevant?

PN50

THE DEPUTY PRESIDENT: I do not think it is necessary once the undertaking is given. In any event Mr Winter, it does not seem to me - I mean, what you will be undertaking is that the rates to apply with effect from certification of the agreement, are the rates on page 2, for each of the classifications on page 2, and the rates to apply from 1 July 2005 are the rates. Now, the only issue that I have with this, Mr Winter - - -

PN51

MR WINTER: It may be cleaner if I supply - - -

PN52

THE DEPUTY PRESIDENT: Yes.

PN53

MR WINTER: And then there could be no debate whether someone is looking on wage and then et cetera - it is a simple practice I think.

PN54

THE DEPUTY PRESIDENT: Yes, it might be in fact. So perhaps you should do that, yes, in the circumstances.

PN55

MR WINTER: Well, I will get you that new material, I will get you the statutory declarations with the correct wording in, and the changes to those pages by close of business Friday.

PN56

THE DEPUTY PRESIDENT: Yes. Well, you might like to just make the undertaking while you are on your feet.

PN57

MR WINTER: And I will give the undertaking in relation to his agreement, that the wage rates as outlined on page 2 and 3 of this agreement are the correct wage rates that apply from the date of certification, and that the other page of wage rates are not to be included.

PN58

THE DEPUTY PRESIDENT: Yes, and that the rates on page 3 currently headed 1 July 2004 - - -

PN59

MR WINTER: Should read 1 July 2005.

PN60

THE DEPUTY PRESIDENT: Yes. All right. Well, on the basis that you provide me with an amended page for page 3, and then I will make that amendment also. Yes, Mr Kavathas, is there anything you wish to add - you will need to make the same undertaking.

PN61

MR KAVATHAS: The same undertaking, yes, and the statutory - - -

PN62

THE DEPUTY PRESIDENT: But you need to stand, Mr Kavathas.

PN63

MR KAVATHAS: That is fine. I will take the same undertaking.

PN64

THE DEPUTY PRESIDENT: So, you adopt the undertaking as made by the AWU in respect of those wages provisions, do you?

PN65

MR KAVATHAS: Yes, absolutely.

PN66

THE DEPUTY PRESIDENT: Is that correct, you adopt the undertaking as provided by the AWU.

PN67

MR KAVATHAS: Yes, that is correct.

PN68

THE DEPUTY PRESIDENT: Thank you. And you are in a position, by when, to provide me with another statutory declaration, Mr Kavathas?

PN69

MR KAVATHAS: By the end of the week. By the close of business on Friday.

PN70

THE DEPUTY PRESIDENT: All right. Well, subject to those matters being properly taken care of - you can be seated now, Mr Kavathas. Subject to those matters being properly taken care of, I am satisfied that in all other respects the agreement complies with the requirements of the Act and on that basis I will be in a position to certify the agreement when I have received those documents. And that will require no further appearances, I will simply issue it. In the event that I remain unsatisfied, then - or dissatisfied for any reason, then I will contact the parties.

PN71

The matter is adjourned, thank you.

<ADJOURNED INDEFINITELY [10.20AM]