AG2005/2679, Transcript of Proceedings [2005] AIRCTrans 446 (22 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10457

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/2679

s.170LS - agreement about industrial dispute (division 3)

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-FFPD- SOUTH AUSTRALIAN BRANCH (NO.3 BRANCH) AND ANOTHER
(AG2005/2679)

ADELAIDE

2.36PM, THURSDAY, 10 FEBRUARY 2005

PN1

MR D KIRNER: I am the Secretary of CFMEU FFPD.

PN2

MR MAY: I appear for McLaren Vale Glass.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. This application was filed on 24 January. It follows an earlier application filed in July 2004. Mr Kirner, the application in this matter references a 1986 dispute finding. The immediate question that arises is whether or not you say to me that dispute finding provides the ambit for all of the matters covered in this agreement.

PN4

MR KIRNER: Without having a copy of or seeing the document, I would not be able to say at this stage. We have been progressively seeking to move towards Division 2 agreements so we are not having this particular issue. In this particular case we stuck with the Division 3 but if we were to provide answers to you on that we would need to go back to the document and have some further discussions about this long running enterprise issue.

PN5

THE SENIOR DEPUTY PRESIDENT: Well, Mr Kirner, a brief consideration of the log of claims which underpinned that 1986 dispute finding would appear to raise a number of questions about ambit. I will not go through those questions with you now. It might be best that I simply arrange for you to be given a copy of that ambit log

PN6

MR KIRNER: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Unless your office files are extraordinarily detailed you probably do not have it.

PN8

MR KIRNER: It would probably be quicker if it came through the Commission. A lot of the records of the old furnishing trades are held in Melbourne and would probably take somewhat longer.

PN9

THE SENIOR DEPUTY PRESIDENT: I am happy to leave that issue with you to ponder up rather than going through clause by clause in the agreement proposal. If per chance you concluded that the agreement was in whole or in part without ambit the option exists to change the basis upon which the application is made so it would become a section 170LJ agreement application.

PN10

MR KIRNER: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: If you advise me instead that you are satisfied that the ambit exists then I will have a closer look at that particular log of claims and if I agree with you we will work from that basis. Are you happy with that approach?

PN12

MR KIRNER: Yes. We will have a look at that and get back to you.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Now the next question I have is perhaps best addressed to you Mr May. What do you say to me is the full name of the employer?

PN14

MR MAY: McLaren Vale Glass.

PN15

THE SENIOR DEPUTY PRESIDENT: I see. The application has been filed in the name of McLaren Vale Glass Pty Ltd.

PN16

MR MAY: It is not a Pty Ltd.

PN17

THE SENIOR DEPUTY PRESIDENT: I see. Mr Kirner, the absence of corporate status in that regard may explain the basis upon which the application is made in that a division 2 agreement can only be made with a constitutional corporation whereas a division 3 agreement has the potential to involve other parties so that escalates the significance of the ambit log.

PN18

MR KIRNER: Just on that, can I ask a question. Obviously the intention of people when they are submitting division 3 agreements is to get an agreement certified, it is not really to bring in ambit from pre existing logs. We are not seeking to in a defined term define condition and wage agreement able or seeking to seek things from an ambit log from some 18 years ago and I was just wondering if there is a capacity in circumstances such as is to give the commitment that the ambit of the 86 log is not playing a role in seeking to further any wages or conditions within the terms of this agreement.

PN19

THE SENIOR DEPUTY PRESIDENT: It is almost the opposite, Mr Kirner. In that division 3 relates to agreements that are about industrial dispute or industrial situations. There is no expectation that the agreement will necessarily resolve all of the issues or claims that were made as part of an ambit log but instead that it goes at least some way toward addressing those issues. Once you run out of ambit, then it is very to see how you can rely upon that particular provision as the foundation for an agreement. In same the way if you have an award, that award is made in part settlement of a dispute. It is a paper dispute. There is not necessarily any expectation that in the immediate future the service of an ambit log on an employer is going to result in the employer agreeing with all of those matters.

PN20

But when a union runs out of ambit that raises serious questions in terms of the jurisdiction upon which an award can be made. I could certify an agreement without consideration of the question of ambit but I probably would be doing neither you nor the employer nor the fundamental purpose of the Commission any favours at all.

PN21

MR KIRNER: So if the award itself, which is the Glass Merchants and Glazing Contractors Award, contains some ambit within it such as leave reserve matters, does that then provide scope for some continuing ambit to be considered in light of the C number?

PN22

THE SENIOR DEPUTY PRESIDENT: By and large the award will need to be considered as a partial resolution of the ambit log that was served on that group of employers. It is not so much a question of what is incorporated in an award that becomes relevant for this purpose rather the extent to which exists a paper dispute about that range of issues that were addressed in the ambit log.

PN23

MR KIRNER: Is the Commission in any circumstances certifying agreements under division 3 currently anywhere throughout Australia, and if so, on what basis, or are all division 3 agreements being refuse?

PN24

THE SENIOR DEPUTY PRESIDENT: No, there is a very substantial number of division 3 agreement that have been certified by the Commission. Those generally are being certified in situations where the ambit log and the dispute fining that is relied upon provides scope to address all of the provisions of the agreement. That is the sort of problem that we are alerting to here and in some other matters involving your union generally arise because you have got very old ambit logs that are being relied upon and you may well have run out of ambit in some of those instances. What most unions do in those circumstances if serve new logs so as to protect the integrity of the award.

PN25

I would have to say that South Australia has a higher instance of division 3 agreements than most other states. Most parties have now moved to division 2 agreements but there are still instances particular where the employer is not a constitutional corporation where division 3 is still relied upon. By or large they do not represent a major problem, a problem that arise if the agreement addressing something about which there is no ambit then it gives rise to significant questions about the jurisdiction of the Commission to be able to certify the agreement. And if it is certified, and someone raises a question in the future, then the entire foundation upon which that certification was made might be called into question. That is why it is probably or it is undoubtedly easier to address it now.

PN26

MR KIRNER: Yes. Well we will go and have a look at it in relation to division 3 but it sounds like we still need to go through with doing a division 3 because of the structure of the company.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR KIRNER: There are a number of employers in the glass industry that are in a similar situation. So I think we need to be mindful of a lot of people seeking to make agreements but it is becoming increasingly difficult for some types of companies.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Now, Mr Kirner the next question I have is that the predecessor to this agreement, that is the agreement that was the subject to the July application gave rise to a series of questions that I raised with the parties. Is it the case that the answers provided to me by the parties are the same, that is, were I to ask you the same question that I asked about clause 1.6 in the July agreement, is this the same, is it the case the employer and the union would give me the same answer about that?

PN30

MR KIRNER: Yes. It is exactly the same agreement. It is just that the point size has been increased so it is a bit more legible.

PN31

THE SENIOR DEPUTY PRESIDENT: So can I rely upon the answers given to me last year.

PN32

MR KIRNER: Yes. The only thing we were of the opinion that we needed to change was to provide an improvement consultation process which would give rise to an employee voting on the agreement, holding for the required period and then a statutory declaration coming in to reflect that. So we have done all that but what has happened is because of the issues in relation to Electrolux it is again slowed down the process for the industrial parties.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN34

MR KIRNER: So we are just concentrating on getting the statutory declaration right at this stage.

PN35

THE SENIOR DEPUTY PRESIDENT: So, Mr May, can I take it that the answers you gave to me last year relevant to the July application also remain true.

PN36

MR MAY: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Bear with me for one moment Mr Kirner.

PN38

MR KIRNER: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Kirner, within what time frame would you be able to come back to me in relation to the ambit log?

PN40

MR KIRNER: I think within 14 days. We would certainly like to get this one cleared up. There are a number of other glass agreements that are starting to come through now.

PN41

THE SENIOR DEPUTY PRESIDENT: Now, the statutory declarations indicate the vote occurred on the 24 of November.

PN42

MR KIRNER: Yes.

PN43

THE SENIOR DEPUTY PRESIDENT: The application in this matter was not filed until the 24 January.

PN44

MR KIRNER: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: That is some 40 days outside of the time frame set in section 170LM of the Act.

PN46

MR KIRNER: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: Can I take it the parties want me to extend that time frame, and if so, can you tell me the reason for the delay and can you advise me of whether or not there was any change in the employee who I understood was initially to be covered by this agreement.

PN48

MR KIRNER: Yes. A new employee was engaged. A former employee left. The next employee was given the terms of the agreement and endorsed the agreement. The timing difficulties are simply, I think, at the end of the year most building sites are getting particularly busy and also we are getting quite busy to at the union office as well as annual leave periods coming in. In most cases we are within 21 days but certainly our history has been that the 21 day period does cause some difficulties and we often have to ask for some extensions to get it done just through the nature of going out and getting the declarations and the agreements signed.

PN49

THE SENIOR DEPUTY PRESIDENT: Now, so there is still only one employee?

PN50

MR KIRNER: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: But the employee commenced prior to this agreement being signed and agreed?

PN52

MR KIRNER: I think that employee was given a copy of the agreement prior to him being employed and asked what he thought of it and he indicated that it was a good agreement and he has subsequently been employed.

PN53

THE SENIOR DEPUTY PRESIDENT: What I am trying to say, are there now two employees?

PN54

MR KIRNER: There is one employee at the moment, I believe.

PN55

THE SENIOR DEPUTY PRESIDENT: Mr May, one employee or two?

PN56

MR MAY: That is correct.

PN57

THE SENIOR DEPUTY PRESIDENT: I am sorry. One employee or two?

PN58

MR MAY: Technically I am an employee.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes.

PN60

MR MAY: There is one employee and - - -

PN61

THE SENIOR DEPUTY PRESIDENT: You are the proprietor of the organisation?

PN62

MR MAY: Well, yes, along with my wife, yes.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes. All right.

PN64

MR MAY: But I actually get employed, paid as an employee because I am on the tools on sites.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes. Yet, as I understand it, you own the business?

PN66

MR MAY: Yes.

PN67

THE SENIOR DEPUTY PRESIDENT: All right. Well look at the other so called employed. When did that employee commence?

PN68

MR MAY: November.

PN69

THE SENIOR DEPUTY PRESIDENT: Did they commence before or after the 24 November?

PN70

MR MAY: After.

PN71

THE SENIOR DEPUTY PRESIDENT: So the statutory declarations, Mr Kirner, say that the agreement was approved by a valid majority of employees on the 24 November.

PN72

MR KIRNER: Yes, and I spoke to the employer about it because I actually know the person who is employed, who is a member of the CFMU and has been for probably 30 years. As it says in 5.5, he read the agreement, indicated that he understood the terms of it and described it as a good agreement because it contains things like the 36 hour week and so forth.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, but if the agreement was reached on the 24 of November, if I am understanding Mr May correctly, that particular employee was not then an employee.

PN74

MR KIRNER: Well, you could throw a range of issues into light but an employee left the company and the company needed to employee someone else and the company advised us that they were thinking of employing this particular person and we said good, he is a good person, and he needs a job, and the company said that they would give him a copy of the agreement to look at, to hold for the requisite days as the person to make a decision as the only person who was going to be an employee who has come back to the workforce probably after two and a half years after a major accident in a glass factory who looked at the agreement and decided on the basis of that he would like to be employed by the company. I think they were going to employ him anyway but he was the one that we have to give the agreement to because he was the person who was going to be employed.

PN75

THE SENIOR DEPUTY PRESIDENT: The answer to the question in 5.5 is that the long time and I quote:

PN76

The long time union member read and understood the terms of the agreement described it as sweet.

PN77

MR KIRNER: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: I understand that that happened at some time after the 24 November when that person was employed, is that correct?

PN79

MR KIRNER: The approval date that was given to me was the 24 November 2004.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, but did the long time union member describe the agreement as sweet after the 24 November?

PN81

MR KIRNER: No I believe that the 24 of November was the day that he indicated, yes, he was in support of the agreement after holding it for the 18 days. The exact date of his employment - my understanding is that the company is operating in the southern suburbs as well as operating on the construction site and they were looking for someone who could do some of the southern suburbs work, the smaller domestic glass work as well as have the capacity to do the onsite construction work and as I described the company was indicating that this person was interested so they received a copy. The exact date of his employment whether he was employed on the 25th or the 26th I do not know but I do know that there was a prospective employment arrangement being entered into and he was the person who had been designated as an employee and it subsequently transpired that he took on the job.

PN82

THE SENIOR DEPUTY PRESIDENT: I guess what I am trying to establish is whether or not the person who described the agreement as sweet, which I will take it as approving the agreement, did so having had that same agreement in an unchanged form for 14 days.

PN83

MR KIRNER: Yes, absolutely.

PN84

THE SENIOR DEPUTY PRESIDENT: And, presumably at the time at which they described as sweet, they were an employee.

PN85

MR KIRNER: I do not have the actual date of employment but, your Honour, I do not have that, but I do know that the person is now employed and was consulted in accordance with the Act and the issue of when they were employed - what we had was a person who was seeking employment and was going to be employed and this was the basis of employment and they endorsed that document. I have not come across it myself either before.

PN86

THE SENIOR DEPUTY PRESIDENT: It becomes fairly significant in terms of the division 3 application that we are dealing with here. Mr May, can you help me in this regard? The employee now covered by this agreement, are you able to advise me of when you understand that person endorsed the agreement?

PN87

MR MAY: It was, because I delivered it to him in person, it was 14 days. He kept it for about 14 or over 14 days.

PN88

THE SENIOR DEPUTY PRESIDENT: And was he an employee at the time that he endorsed the agreement?

PN89

MR MAY: No, but I had already spoken to him at that time or we had already negotiated to employ him at that time but I did not actually quite employ him until after that time.

PN90

THE SENIOR DEPUTY PRESIDENT: I see.

PN91

MR MAY: Actually I did employ him for maybe one or two days here or there but I was waiting for more significant work to show up before I employed him, like signed him up with all the correct WorkCover and all the stuff that goes with the EBA.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr May, what you will need to do is to give this agreement back to the employee. You do not need to give him another 14 days as long as you do not change the agreement. You will need to give it to him and you will need to say to remind him that this is the same agreement that was previously given to him and you will need to ask him to reaffirm his agreement to that document. This time he will be doing so as an employee to be covered by the agreement otherwise I certainly got no capacity to take the matter any further. It might appear to be a technical approach but if someone ever challenged this agreement then I need to be satisfied that the person who endorsed the agreement was in fact an employee at the time.

PN93

MR MAY: So is that to be given like verbally or?

PN94

THE SENIOR DEPUTY PRESIDENT: Well the document will need to be given in a written form. It will have to be identical to the document that I have before me. If you want to change it that is a matter for you and Mr Kirner to work out. If you do change it you will need to give the employee at least 14 days notice of the document. If you do not change it simply give it to the employee and ask the employee to affirm their agreement with it and you will then need to confirm to Mr Kirner that that has occurred so that Mr Kirner can advise me of that. Are you clear in that regard?

PN95

MR MAY: Clear.

PN96

THE SENIOR DEPUTY PRESIDENT: Now, Mr Kirner, when you provided advice to me about the jurisdictional foundation for the agreement, that is the ambit log, I will look forward to some advice that reflects the discussion that
Mr May has had with that employee. Are you happy with that approach?

PN97

MR KIRNER: Yes, well if it is simply a technical issue about whether he is employed and to provide a copy, I will run of a copy and post it off to Danny and Danny can give it to John and he can read and then I can speak to Danny and speak to John.

PN98

THE SENIOR DEPUTY PRESIDENT: We can give Mr May another copy of the agreement.

PN99

MR KIRNER: Yes.

PN100

THE SENIOR DEPUTY PRESIDENT: What the parties are doing here is making a mill out of a relatively simple process. I am just trying to look for some simple way of expediting the problem.

PN101

MR KIRNER: Yes. We will quite certainly do that.

PN102

THE SENIOR DEPUTY PRESIDENT: If I am provided with advice that confirms that the employee endorsed this agreement, having had it back in November last year, then I can take that as approval by a valid majority.

PN103

MR KIRNER: Yes.

PN104

THE SENIOR DEPUTY PRESIDENT: If I am provided with advice that confirms that the ambit for this agreement to be considered with respect to division 3 exists and I am satisfied about that advice then I will consider the agreement pursuant to that division. If I cannot be persuaded in that regard I will then give consideration as to whether or not the matter needs to be called back on or whether I simply make a decision on the basis of the quite substantial material already before me. If I can certify the agreement then the certificate that we sent to the parties will reflect the, or identify the various clauses about which I sought clarification last year relative to the earlier agreement application. The responses are recorded on transcript of those proceedings in November last year.

PN105

The only other comment that I need to make is to reiterate an observation made in the course of the July hearing and that is to say I am aware that this agreement has current application to only one employee. I hope the parties always maintain a co-operative relationship. What parties write into their agreements is their own business but this particular agreement is so convoluted that I am not sure that anyone could rely on it to do anything. So that if ever the parties decide to revise this agreement I can only recommend most strongly they right a new document in English which ordinary people are able to understand because if ever this matter or if ever a dispute was referred to the Commission relative to this agreement, you are on notice that if it is referred to me, I may or may not proceed to try to resolve the matter.

PN106

The parties have created this mess and I would be very much inclined towards saying you are to live with it. So that if you are to revise the agreement please think about expressing in slightly different ways that do not lead to such confusion. The last issue Mr Kirner is should I take it that the parties no longer wish to proceed with the application made for certification on the 1 July last year?

PN107

MR KIRNER: Of this agreement?

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, of the predecessor to this agreement.

PN109

MR KIRNER: Well, I think this in fact the same agreement.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes, well there is a new application made so I am simply trying to clarify as to the earlier application is to be discontinued.

PN111

MR KIRNER: In relation to the new filing of statutory declarations

PN112

THE SENIOR DEPUTY PRESIDENT: Well, in fact I am in fact looking at a new application. This is application 2679 of 2005. On July 1 2004 application 5300 of 2004 was made. The agreement is different in marginal respects. The statutory declarations are different in a number of respects. I am working from the premise that the matter that the matter which was the subject of the July 2004 application is to be discontinued by the parties, is that the case?

PN113

MR KIRNER: I have two documents. One which provides a matter number AG20045300 and then that was provided by the Commission on the 20th - - -

PN114

THE SENIOR DEPUTY PRESIDENT: But that was the 2004 application.

PN115

MR KIRNER: Yes. But I have a letter from the Commission in October 2004 which again says AG2004/5300. I will just have to check the diary to see if there is some correspondence that indicates - - -

PN116

THE SENIOR DEPUTY PRESIDENT: You see you filed a new application. The new application was filed on the 24 January.

PN117

MR KIRNER: You mean in relation to our application for certification of the agreement.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes.

PN119

MR KIRNER: We have been allocated with, bear with me - no I do not have a record of what application number we have been allocated.

PN120

THE SENIOR DEPUTY PRESIDENT: You have been allocated 2679. Take my word for it, Mr Kirner.

PN121

MR KIRNER: We have also got a document that has got AG2004/5297 which is a McClaren Vale Glass received application of 2004. So we are certainly in the hands of the Commission in respect of the best way to proceed to complete this agreement. It is a good agreement in terms of the conditions that it provides to workers and certainly any assistance the Commission can give us in getting this agreement certified as quickly as possible would be gratefully appreciated. If the Commission has a view about what is the best way to proceed we are happy to do that. It has been going now for eight months.

PN122

MR MAY: If I may, the document got changed a little a bit after the July thing, there was things that were printed in there wrong.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes. There was a new application made, Mr May.

PN124

MR MAY: I beg your pardon.

PN125

THE SENIOR DEPUTY PRESIDENT: There has been a new application made.

PN126

MR MAY: Yes, well I think we changed the documents. Dave Kirner was not here, it was the other fellow the first time and I think there was wrong wording in it and it got changed, so if that is what you mean by making a new application, I think that is what happened.

PN127

THE SENIOR DEPUTY PRESIDENT: Mr Kirner, the simple way of trying to clarify the issue is that I have before me two Commission files. One reflects an application made in July 2004 and you have indicated to me that you want to rely upon the responses given to me relative to that application.

PN128

MR KIRNER: Yes.

PN129

THE SENIOR DEPUTY PRESIDENT: It appears to me that the parties have gone back and redrafted parts of the agreement and have put that new agreement to the person who has now been employed. The parties are going to put that agreement again to the employee to make sure that this time the employee endorses it as an employee. But I am working from the premise that you no longer wish to proceed with the 2004 agreement but instead are focusing your endeavours on the certification of the January 2005 agreement.

PN130

MR KIRNER: Yes.

PN131

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well I will close the Commission's file in relation to that 2004 agreement and I shall await to hear from the parties about the issues that I have raised. I will adjourn the matter accordingly.

PN132

MR KIRNER: Thank you.

<ADJOURNED INDEFINITELY [3.10PM]