AG2005/5204, Transcript of Proceedings [2005] AIRCTrans 2542 (29 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13032-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/5204

APPLICATION BY A F GOW PTY LTD & GOW, DAMIEN
s.170LK - Agreement with employees (Division 2)
(AG2005/5204)

ADELAIDE

2.51PM, TUESDAY, 04 OCTOBER 2005

PN1

MR M HOWARD: I appear for A F Gow Pty Ltd, appearing with me is
MR D GOW on behalf of the employees and MS S GOW on behalf of the employer.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Howard.
Mr Howard, I can advise you that I have read the agreement and I've read the statutory declarations. I must say at the outset, I have a number of questions about this agreement, but I'll deal initially with the process that must follow in order to reach the agreement. First of all, are you able to provide me with a copy of the employer's notice of intention?

PN3

MR HOWARD: I am, your Honour.

EXHIBIT #G1 EMPLOYER'S NOTICE OF INTENTION

PN4

THE SENIOR DEPUTY PRESIDENT: And I'll mark this as G1. Was the copy of the proposed agreement which was attached to the document the same as the document that I have before me?

PN5

MR HOWARD: That's correct, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. And secondly, am I correct in understanding that the notice of intention was given to employees on
24 August or was it sent to them on that day?

PN7

MR HOWARD: My understanding is that it was given to them on that day, your Honour, with a copy of the proposed agreement.

PN8

THE SENIOR DEPUTY PRESIDENT: I see. And they voted on 7 September?

PN9

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

PN10

THE SENIOR DEPUTY PRESIDENT: How do we achieve the requisite 14 days as distinct from the vote beyond the fourteenth day? And you don't have to answer me straight away. Like me, you can dive for a calculator or a calendar.

PN11

MR HOWARD: My understanding - and I haven't counted the days - but my understanding was there were 15 days. I strictly advised the company that - not to sign it if it was agreed before the fifteenth day. My understanding is that it's 15 days.

PN12

THE SENIOR DEPUTY PRESIDENT: I think the vote occurred on the fourteenth day, Mr Howard, and that's what I'm inviting comment on. That's - - -

PN13

MR HOWARD: I haven't got a calendar in front of me - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. We might be able to help you there. In fact we can help you. By all means, check my arithmetic. Perhaps for Mr and Ms Gow's benefit, the reason that I'm raising a question with Mr Howard in relation to this issue is that there has been a full commission or a full bench decision that interpreted that 14 day requirement as 14 clear days, that is not counting the day upon which the employees were given the agreement but counting from that day onwards. And that's why I'm raising this particular question.

PN15

MR HOWARD: The 7th would bring up the fifteenth day. That would be the fifteenth day. The document was given to the employees on the 24th.

PN16

THE SENIOR DEPUTY PRESIDENT: What, not counting that day?

PN17

MR HOWARD: Sorry. Counting that day - without that day, it would have been 14 days.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, that's right. I mean, on the fourteenth day, which is an identical time sequence as that considered by the Full Bench in White's Discount Supermarkets. And in that instance, the Full Bench determined that the requisite 14 days notice had not been given. And that's why I'm raising that particular question. Yes. All right. Moving on from that particular point - - -

PN19

MR HOWARD: Just a minute, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes.

PN21

Mr HOWARD: Sorry, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: It might be best if I come back to that issue a little later on.

PN23

MR HOWARD: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: It might merge with a couple of the other issues - - -

PN25

MR HOWARD: Right.

PN26

THE SENIOR DEPUTY PRESIDENT: - - - that I want to raise. Mr Howard, moving then to the agreement itself, the cover page for the agreement says that it is the A F Gow Pty Ltd Christmas Island Immigration Reception and Processing Centre.

PN27

MR HOWARD: That's correct, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: IRPC Certified Agreement 2005. The title of the agreement in clause 1 is the Kingswood Aluminium Pty Ltd Christmas Island Immigration Reception and Processing Centre Certified Agreement.

PN29

MR HOWARD: Apparently what happened there, your Honour, is that normally when they put these things in, they set the computer up so that you just push a button and A F Gow Pty Ltd would normally come up in everywhere it mentions the company name. This is - and it obviously hasn't and it was an oversight, it wasn't the person who typed it didn't check it.

PN30

But the situation is that there's two matters here today. One is A F Gow Pty Ltd, one is Kingswood Aluminium Pty Ltd. It's a project agreement on Christmas Island. It's very similar to one that's been approved by the Commission. That's the Baulderstone Hornibrook Queensland Enterprise Agreement. Because the Baulderstone Hornibrook's Queensland branch is actually in charge of the project, what has happened of course, is the document was changed slightly because they are the principal subcontractor. Kingswood Aluminium P/L have the contract and have subcontracted the outside carpentry work to A F Gow Pty Ltd.

PN31

The work that they're doing is both in the carpentry. One would be inside and the other would be outside. And as a result of that, the agreements, I've got to say, are very similar because they are project agreements for Christmas Island only and for the time of the Christmas Island project. It's merely a typing error, it's no more than that, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, if it's a typing error, then it's repeated in clause 5 where the agreement was to be binding on Kingswood Aluminium Pty Lt and its employees.

PN33

MR HOWARD: Sorry. Where was it?

PN34

THE SENIOR DEPUTY PRESIDENT: I was drawing your attention to - - -

PN35

MR HOWARD: Yes. That's right. I'm with you now.

PN36

THE SENIOR DEPUTY PRESIDENT: - - - cover page which has one employer.

PN37

MR HOWARD: Yes, yes. I've got it. Yes.

PN38

THE SENIOR DEPUTY PRESIDENT: The title which has a different
employer - - -

PN39

MR HOWARD: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: And the party's bound clause - - -

PN41

MR HOWARD: Yes, that's right.

PN42

THE SENIOR DEPUTY PRESIDENT: - - - has a different employer.

PN43

MR HOWARD: Yes. That's right. Well, I don't exactly know how that occurred, because my understanding is that when they actually put A F Gow Pty Ltd and set the computer up, it should automatically come up with A F Gow Pty Ltd in all those places. It's obviously come up on the last page.

PN44

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 13? Clause 13.9 refers to section 28 of the Occupational Healthy Safety and Welfare Act of 1984. Because there are two questions I have about clause 13.9, what is it actually saying and secondly, what legislation is it referencing?

PN45

MR HOWARD: I'm not sure what the legislation is referring. The clause itself comes off the major project agreement. As I said earlier, it is a project agreement. Baulderstone's have been working on that project for some time now and have had an agreement certified by the Australian Industrial Relations Commission, some probably ten months ago now, because work is at a stage now where these people will be coming onto the site on 28 October. I'm not quite sure. I'd have to actually check that, your Honour, as to what section 28 is referring. It's obviously applicable to the project.

PN46

THE SENIOR DEPUTY PRESIDENT: In terms of clause 14 and the training allowance reference there, should I understand that training program will be developed over the duration of the agreement?

PN47

MR HOWARD: That's correct, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Clause 15 talks about income protection insurance. Are you in a position to provide me details of that income protection insurance to me?

PN49

MR HOWARD: Yes. The current - this would be the income protection insurance, it's payable for approximately $800 a week on average. It cuts in after 14 days and would have a life of 104 weeks, your Honour, and would be costing just over the $8 a week mark.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 16. 2 references the South Australian Construction Industry Long Service Leave Fund Scheme.

PN51

MR HOWARD: That's correct, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Does that have application to the work of Christmas Island?

PN53

MR HOWARD: Yes. You can pay - if your employees go into stages, you can pay - continue to pay into the South Australian Construction Industry Long Service Leave Fund.

PN54

THE SENIOR DEPUTY PRESIDENT: And equally, in terms of 16.3, does the Burst Scheme have operation in terms of this particular project?

PN55

MR HOWARD: Yes. It does, your Honour. Because the persons - the four persons who are going, there will be 5 with Mr Gabbutt, he is the managing director, but the four employees that are going are all employees of A F Gow Pty Ltd within South Australia. They were employed within South Australia and therefore their long service leave is able to be paid into the Construction Industry Long Service Leave Fund here. You could pay it into the other states but they accept the fact that if you're interstate working that you can pay it because there is a liaison between all of them. So service in any other state counts in the construction and long service leave in South Australia. And the Burst - that's only a continuation of the amounts that would have been paid in South Australia had they been remaining to work here.

PN56

THE SENIOR DEPUTY PRESIDENT: And should I understand that there is an existing agreement, an existing certified agreement in operation applying to this particular aspect?

PN57

MR HOWARD: That's correct, your Honour. But it only applies within the state of South Australia.

PN58

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. It's all right. Thank you. Now, Mr Howard, I'm not going to be able to certify the agreement today for two reasons. The first is that I'm not satisfied that the requisite 14 days notice has been to the Commission's requirements has in fact been met in that the vote occurred on the fourteenth day. The second is that the provisions of the cover page, clause 1 and clause 5 with other references in the agreement, appear to confuse the actual employer in the matter. Now, that means that the parties have a choice. They could choose to rewrite the agreement in whatever form they wished and to resubmit the agreement for certification in which case, at some stage at least more than 14 days from today, I'd expect to see people back here.

PN59

Alternatively, if the parties chose to simply correct the errors insofar as Kingswood Aluminium Pty Ltd and A F Gow Pty Ltd are concerned, resubmitted that agreement to the employees with a notice of intention, and provided me with first of all, a copy of the revised agreement; secondly, new statutory declarations that outlined the process followed; and thirdly, a copy of the revised notice of intention, then I would propose to rely upon the information provided to me today to certify the agreement with effect from the date upon which I received that material. That would mean there would be no need for a further hearing. It simply means the parties have to repeat the process.

PN60

MR HOWARD: I think that's - - -

PN61

THE SENIOR DEPUTY PRESIDENT: If the agreement was changed in any other substantive way, then rather than running the gauntlet of refusing certification, I would ask the parties to come back here and we can see whether we can sort out the difficulty. But I'm endeavouring to see whether we can climb over a couple of insurmountable glitches in the process without requiring people to come back into the Commission.

PN62

MR HOWARD: We would take the second option, your Honour, so that the parties don't have to come back. I can assure your Honour the document won't be changed in any other way except the correction of the names because the document is now code compliant - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR HOWARD: - - - in terms of the new guidelines and implementation of the code of practice for the construction industry as it would apply on any Commonwealth funded projects. Not only now do we have to be compliant in terms of the Electrolux case decision, we also now have to be compliant in accordance with the new code of practice and guidelines for work on Commonwealth funded projects. We can get through the Electrolux test, if we don't get the second test, then our people are not allowed to work on Commonwealth projects.

PN65

THE SENIOR DEPUTY PRESIDENT: There is one other issue, Mr Howard, that won't or should not impede upon certification. But I would ask you to look at clause 13.9 and perhaps provide some advice to me about that provision.

PN66

MR HOWARD: I will, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: I don't see that it's likely to impact upon certification.

PN68

MR HOWARD: No.

PN69

THE SENIOR DEPUTY PRESIDENT: I'm simply allergic to having a dispute over something that is easily avoidable.

PN70

MR HOWARD: Yes, I will, your Honour. No worries.

PN71

THE SENIOR DEPUTY PRESIDENT: Now, Mr and Ms Gow, do you have any questions of me about the process being followed? I can assure you Mr Howard has guided other people through the same sort of difficulty in the past and he should be able to help you out on this occasion. But I just want to give you the opportunity to raise a question should you have one.

PN72

MS GOW: No.

PN73

THE SENIOR DEPUTY PRESIDENT: All right. Now, Mr Howard, on that basis I will adjourn these proceedings and I'll expect to see something further from the parties along the lines that I've asked for.

PN74

MR HOWARD: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: At some stage, at least more than 14 days away.

PN76

MR HOWARD: Thank you, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: I’ll adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [3.08PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 EMPLOYER'S NOTICE OF INTENTION PN3