AG2005/2814, Transcript of Proceedings [2005] AIRCTrans 397 (17 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10381

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2814

s.170LK - agreement with employees (division 2)

APPLICATION BY CIVIL & ALLIED TECHNICAL CONSTRUCTION PTY LTD T/AS CATCON
(AG2005/2814)
Australian Workers' Union Construction and Maintenance Award 2002

MELBOURNE

10.05AM, MONDAY, 07 FEBRUARY 2005

PN1

MR O SMITH: I appear on behalf of the company together with
Mr L TAYLOR, the nominated employee representative for this case.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Smith. Mr Smith, I can advise you that I have read the statutory declarations and I have read the agreement. I have noted that a copy of the notice of intention has been provided with the agreement. Can I confirm with you that the agreement was not changed in any way from 19 October and that it was provided to employees on that day?

PN3

MR SMITH: The agreement has not been changed and the agreement was provided to the employees.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN5

MR SMITH: Your Honour, I just have one document I'd like to hand up.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Smith.

PN7

MR SMITH: If you notice attachment A at the back of the agreement, the intention there is to construct wind farms all in that area. That document I handed up to you shows the word Baronga Range and how it fits within that square, just for a point of clarification. If that can be placed on the file.

PN8

THE SENIOR DEPUTY PRESIDENT: I see. So what you are saying to me is that this document is intended to simply explain the employer's understanding of the scope of agreement.

PN9

MR SMITH: That is correct.

PN10

THE SENIOR DEPUTY PRESIDENT: In that regard should I understand that it is simply a more detailed map than that which is currently shown as attachment A?

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. The map in attachment A is far broader, because that's the intention over the next two years where all the wind farms are going to be. That document I handed up to you has the words Baronga Range written along the actual range itself. If you look to your right you can see Snowtown on attachment A and if you look at it over here you'll see Snowtown. It's just for clarification, your Honour, because the words Baronga Range don't appear on the map attachment A.

EXHIBIT #C1 DOCUMENT SHOWING WORDS BARONGA RANGE

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Smith. Now Mr Taylor, you are here today as the employee representative, is that correct?

PN13

MR TAYLOR: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: How did you come to be an employee representative?

PN15

MR TAYLOR: In our first meeting having a look over the agreement I was nominated through the other employees there to be the representative. Basically it was a show of hands and they thought I would be the best person for the job.

PN16

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Can you confirm to me that on or about 19 November you received that notice of the employer's intention to make this agreement?

PN17

MR TAYLOR: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: The agreement was attached to that letter, was it?

PN19

MR TAYLOR: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: The agreement was subsequently not changed in any way?

PN21

MR TAYLOR: No, it has not been.

PN22

THE SENIOR DEPUTY PRESIDENT: Are you aware if any employee has sought to have a union involved in discussions about the agreement?

PN23

MR TAYLOR: I don't believe so.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. Now Mr Taylor, I am going to ask Mr Smith just a couple of questions about the agreement. Do you have a copy of the agreement in front of you, Mr Taylor? You do?

PN25

MR TAYLOR: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: My questions, Mr Taylor, will not invite Mr Smith to rewrite the document. They simply go to clarify the intention of the parties about various clauses.

PN27

Mr Smith, if I look at clause 9, should I understand then that in effect, what the parties are saying in terms of that clause is that for a variation to this agreement to have any effect that variation will need to be in accordance with the requirements of the Act, which include endorsement by the Commission?

PN28

MR SMITH: That is correct, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Clause 15 relates to superannuation. I am sorry, perhaps I can take you to clause 14 first of all, dispute resolution procedure. Because the process stops at the conciliation stage should I understand that if a matter was not resolved then the status quo would continue indefinitely?

PN30

MR SMITH: It might in some circumstances but in other circumstances both parties might wish for the Commission to arbitrate the matter and that would necessitate consent between the parties.

PN31

THE SENIOR DEPUTY PRESIDENT: That would be done through section 111.

PN32

MR SMITH: That's correct.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 15 relates to superannuation. Is the superannuation fund referenced in that regard nominated or is it at the election of the employer?

PN34

MR SMITH: It's at the nomination of the employee and the employer, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Smith. Now Mr Taylor, can I take it that you are in agreement with Mr Smith's responses to me?

PN36

MR TAYLOR: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: On the basis of the information provided to me and together with the advice given to me today I am satisfied that the agreement was reached through a process consistent with that set out in the Act. You may sit down, Mr Taylor.

PN38

I am satisfied that the requirements of section 170LK have been met, that the agreement deals with matters dealing with the relationship between the employer and its employees. I am similarly satisfied the agreement meets the prerequisites necessary for certification insofar as those are set out in sections 170LT and LU of the Act.

PN39

Accordingly I will certify the agreement with effect from today. A certificate to that effect will be sent out to the parties within the next few days. That certificate will identify the clauses about which I sought clarification, but Mr Smith's responses to my questions were recorded on the transcript if the parties ever need to look at those.

PN40

I congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees.

<ADJOURNED INDEFINTELY [10.13AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 DOCUMENT SHOWING WORDS BARONGA RANGE PN11