AG2005/8640, Transcript of Proceedings [2005] AIRCTrans 2577 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13803-1

COMMISSIONER DANGERFIELD

AG2005/8640

APPLICATION BY COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-ELECTRICAL DIVISION SOUTH AUSTRALIAN DIVISIONAL BRANCH & BILFINGER BERGER SERVICES
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/8640)

ADELAIDE

11.02AM, FRIDAY, 16 DECEMBER 2005

PN1

MR R DONNELLY: I appear on behalf of the Electrical and Energy Services Division of the CEPU South Australia.

PN2

MR K KERRY: I appear on behalf of Bilfinger Berger Services.

PN3

THE COMMISSIONER: Thank you. Mr Donnelly, do you have anything to say about this?

PN4

MR DONNELLY: Yes, sir. You would have a statutory declaration signed by the secretary of the ENS Division of the CEPU.

PN5

THE COMMISSIONER: Yes.

PN6

MR DONNELLY: And all the procedures were followed with the Workplace Relations Act in accordance with the Act. Sir, there was a vote taken. A majority of ETU members who voted for the enterprise bargaining voted in favour of that, sir. The enterprise bargaining agreement was explained in detail by management and by myself as a union official. There was a consultative committee set up to negotiate the enterprise bargaining agreement, and information went out to the members on a regular basis, and they had the final document in excess of 14 days before the vote, sir.

PN7

I draw your attention to clause 18 in the enterprise bargaining agreement, and I just highlight that in clause 18 that it states in the second paragraph:

PN8

Bilfinger Berger Services will introduce a 36 hour week from 31 August 2007 at the latest.

PN9

Once that 36 hour week, sir, is introduced the hourly rate will be devised by dividing the weekly rate by 36 instead of 38 as it is now, so the hourly rate will increase sir, and also there will be a committee set up to develop some targets, and if those targets are met sir, the 36 hour week will be introduced in September 2006, and that will be by agreement of the management and the work force there. And also on 18.1, the third dot point, on certificate of the EBA, and they actually are at the present moment, they'll be working what's called a nine day fortnight sir, with two RDOs off every four weekly period.

PN10

Unless you've got any other questions sir from the CEPU, we'd ask you to certify the agreement on behalf of our members sir. Thank you.

PN11

THE COMMISSIONER: Thank you Mr Donnelly. Mr Kerry, anything to add there?

PN12

MR KERRY: No, sir.

PN13

THE COMMISSIONER: I just note in Mr Smith, Darryl Smith's statutory declaration there's one question there that he doesn't really answer, but I don't think it matters because it's been answered in Mr Gerharty's declaration. It's the one about 6.6:

PN14

Specify the manner in which the explanation of the terms of the agreement took place in ways that were appropriate having to go the parties needs and circumstances.

PN15

I think that's the one. And the answer there just says:

PN16

The consultative process leading to the drafting of a new agreement provided the opportunity for all employees to contribute to the substance of the agreement which was ultimately put to the employees for acceptance, the final document.

PN17

It doesn't really answer the question specifically, but look, I note here that there were - how many employees overall are we talking about?

PN18

MR DONNELLY: I think there's 32 employees.

PN19

THE COMMISSIONER: Thirty-four, that's right. And of those 34 there were six under 21 and three casuals and none from a non English speaking background. Can you just confirm Mr Kerry there weren't any particular issues with those under 21 employees in terms of not understanding the agreement or not understanding what it was about?

PN20

MR KERRY: No, no issues have been brought forward so we believe that they understand it correctly.

PN21

THE COMMISSIONER: Did all the employees participate in a vote do you know?

PN22

MR DONNELLY: Sir, on the day there was around about five or six employees that weren't able to get to the vote, but I contacted them by telephone sir. Two did not return my calls, so there was a message left there for them to vote. But even without their vote the vote was still in the positive sir. So everybody knew it was on. Six weren't available and they were contacted by telephone. It was actually at ..... working up there sir.

PN23

THE COMMISSIONER: Okay. The only other issues I just want to bring your attention, clause 29 of the agreement is the one dealing with shop stewards or delegates. The third paragraph there refers to:

PN24

The shop steward will be allowed a reasonable period of time off during working hours to meet on legitimate business with any accredited union official of the CEPU.

PN25

I take legitimate business in the context of the whole thing to mean site matters affecting members which is referred to in the previous paragraph. The second paragraph at clause 29:

PN26

The delegate shall be afforded all reasonable time during working hours necessary when rearrange with the company without loss of pay to attend to site matters affecting members that they represent.

PN27

And then it goes on to say:

PN28

The shop steward will be allowed a reasonable period of time during working hours to meet on legitimate business with any accredited union official of the CEPU.

PN29

I take it Mr Donnelly that the way I'm interpreting it anyway, is the term legitimate business in the third paragraph is really qualified by that reference in the previous paragraph to site matters affecting members that they represent.

PN30

MR DONNELLY: That's absolutely correct sir, yes, that's the intention.

PN31

THE COMMISSIONER: You understand what I'm getting at?

PN32

MR DONNELLY: Yes.

PN33

THE COMMISSIONER: Mr Kerry, this would be all news to you I suppose, but we must make sure in these agreements that the agreement in every respect pertains to the relations of the employer and the employees in their respective capacities as such, and the High Court has basically said that if there's any aspect of the agreement that doesn't relate to that relationship, that relates for example to the relationship between the company and the union, well that's illegitimate and that could strike down the whole agreement. And we check these agreements fairly carefully to see whether they satisfy the test in that respect. But I'm satisfied it does meet the test, but I just wanted to point out that I had a good close look at that, and probably if we were doing this again I'd suggest that those words legitimate business in the third paragraph just be qualified as they were in the previous paragraph.

PN34

MR KERRY: We certainly will.

PN35

THE COMMISSIONER: It's okay. Yes, that's just for next time around. Then if there's nothing further from the parties I can indicate for the record that this is an application before the Commission under Division 2 of Part VIB for certification of an agreement pursuant to section 170LJ. As I've already indicated, I've studied the agreement and I'm satisfied that the agreement in every respect does pertain to the relations of the employer and the relevant employees in their respective capacities as such, and I'm satisfied therefore that the agreement does comply with section 170LI of the Act.

PN36

The agreement is supported by statutory declarations from Darryl Brian Smith, the Business Manager, Bilfinger Berger Services Australia Pty Ltd, the employer in this matter, and R J Gerharty, Branch Secretary of the CEPU Electrical Division. Those declarations are in order. I note that the National Electrical, Electronic and Communications Industry Award 1998 is the relevant award for the purposes of the no disadvantage test, and I'm satisfied that the agreement passes that test. I note that the agreement in clause 12 includes procedures for preventing and settling disputes between the parties as required by the Act.

PN37

I'm satisfied also on the material before me that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate having regard to their circumstances and needs. Accordingly the Commission certifies the Bilfinger Berger Services Australia Pty Ltd South Australian Certified Agreement 2005 to be operative from today's date, 16 December 2005, and in accordance with clause 3 it will continue its nominal life until 31 August 2007.

PN38

Gentlemen, the necessary documentation to confirm all this will be issued from my office shortly. I'm trying to get everything done before Christmas. We'll see what we can do with that. And congratulations.

PN39

MR DONNELLY: Thank you, sir.

<ADJOURNED INDEFINITELY [11.11AM]