AG2005/3219, Transcript of Proceedings [2005] AIRCTrans 742 (24 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10904

VICE PRESIDENT ROSS

AG2005/3219

s.170LL- greenfields agreement (division 2)

APPLICATION BY THIESS JOHN HOLLAND JOINT VENTURE AND ANOTHER
(AG2005/3219)
Australian Workers' Union Construction and Maintenance Award 2002

MELBOURNE

5.13PM, TUESDAY, 15 MARCH 2005

Continued from 10/3/2005

Hearing continuing

PN278

THE VICE PRESIDENT: Is there anything that has occurred since the matter was last before me? Something obviously has. Mr Watson.

PN279

MR WATSON: Yes. There is a bit of a competition, your Honour, to advise you. Yes, there have been some further discussions between all the parties and the CFMEU and the company confirms that it is hopeful of reaching of an agreement and having that able to be certified by the Commission which involves both unions, the AWU and the CFMEU, and we wish to indicate that that agreement, there is some work to be done with the nature of the agreement, would need to encompass either the demarcation of work or a process acceptable to all parties for the demarcation of work on the project and also the finalisation of any loose ends of other issues as part of the agreement.

PN280

But from the company's point of view it is prepared to devote all of its energies in the next 48 hours to achieve that outcome and we wish to put on record that is the intention of the company. We otherwise say nothing more about the process of handing down a decision today.

PN281

MR MELHAM: Thank you, your Honour. Following the discussions between ourselves, the company and the CFMEU, the AWU would like to place on record the following position. The AMWU would welcome the CFMEU to be respondent to the agreement and also the invitation will be made to the other unions based on or subject to an agreement and enforceable demarcation to be worked out between the CFMEU and the AWU. In the absence of that, perhaps a process can be followed through this Commission to facilitate a satisfactory outcome and when that occurs the AWU will have no hesitation to vary the agreements.

PN282

We are hoping that can occur in the next 48 hours and the commitment was given by the company that they will not employ anyone, so the agreement can be submitted as greenfields agreement. However, if that's not possible and at a later date the parties are able to reach an agreement, then the AWU will support the variation of the agreements including going to the employees to facilitate that outcome. It never was and never will be the intention of the AWU to exclude the CFMEU from this agreement and we hope that we are able to reach an agreement on that because this project is very important to the AWU and its members and the State of Victoria.

PN283

So, your Honour, on that basis I seek that the Commission certify the agreement in the terms sought and we are happy to sort of see that commitment through at a later date when the need arises. If the Commission pleases.

PN284

MR MADDISON: Your Honour, we feel quite humble really to be so wanted from all the parties.

PN285

THE VICE PRESIDENT: I am sure that feeling will pass, Mr Maddison.

PN286

MR MADDISON: Perhaps after 48 hours, I am not quite sure, your Honour. Your Honour, from our part, although it may be said we haven't been devoting all our energies and we have been certainly devoting a lot of resources to try and resolve the outstanding matters between the current two parties to the purported agreement, we do hope that we can reach agreement with the company and consequently AWU about the contents of the agreement. There are a still a few outstanding matters but we are confident that they can be resolved and similarly, we are perhaps a little bit less confident but we are confident that we can resolve the outstanding matters in relation to the demarcation issues as well, either directly or through some agreed process.

PN287

We do hope that if those matters aren't able to be resolved within 48 hours that the company will, if not devote all their energy, at least some energy to those outstanding matters, noting that sometimes these can take a little bit longer than what people would otherwise wish.

PN288

THE VICE PRESIDENT: All right. Thanks, Mr Maddison.

PN289

MR MADDISON: And we do, your Honour, continue to oppose the certification of a greenfields agreement.

PN290

THE VICE PRESIDENT: Well, having regard to what seems to be the mutual desire of everyone at the bar table and that is that an agreement be concluded with the company on the one hand, or the joint venture on the one hand and the AWU and the CFMEU on the other, it's a question as to how best I might facilitate that. I think the difficulty that might arise, Mr Melham, in relation to what you put is that whilst you may be prepared to vary the agreement, et cetera, the problem is the Act doesn't appear to contemplate the variation of a greenfields agreement because it refers to the requirement for a valid majority of persons employed at that time.

PN291

I am not closing off argument in relation to that issue but it would seem on its face there may be a difficulty. What that would mean on a worst case scenario would be that one would have to wait until persons who are employed then provide the 14 days notice and then have a vote of those persons before the agreement could be varied. It seems to me then that in the circumstances the better course, subject to any opposition from the bar table to this course, the better course would be for me to continue to reserve my decision in respect of the agreement before me for a further 48 hours and to reconvene here at 4.30 on Thursday of this week.

PN292

MR MADDISON: Your Honour, I am just wondering, I did raise with the other parties at the bar table earlier that in respect of facilitating an outcome in relation to this matter that your input prior to handing down a decision may also be of assistance, depending on whether the parties got.

PN293

THE VICE PRESIDENT: Sure.

PN294

MR MADDISON: I was just wondering if you did have some time prior to 4.30 on Thursday and Thursday is the best day for the AWU from earlier discussions, and certainly would make ourselves available any time on Thursday if the company were also available.

PN295

THE VICE PRESIDENT: Yes, Mr Watson.

PN296

MR WATSON: Your Honour, we seek the decision of the Commission today. We do not support the notion of a further reservation of the decision. We believe that there is ample mechanics to achieve the objectives of the parties and the parties can devote their energies and gain the assistance of the Commission to reach an agreement which encompasses all unions and that provided there are no employees engaged within the next 48 hours, an agreement that arises from that process is capable of certification under the provisions of the Act.

PN297

THE VICE PRESIDENT: Well, what effect would it have if there is already an agreement that has been certified?

PN298

MR WATSON: It would have an effect on the additional party and it would apply in conjunction, although the first certified agreement would provide to the extent of any inconsistency - - -

PN299

THE VICE PRESIDENT: What is gained in the sense that if you are not employing people for 48 hours, what is the urgency?

PN300

MR WATSON: Well, the agreement is made and there is some certainty as to ability to engage from that point onwards and the parties - - -

PN301

THE VICE PRESIDENT: I don't understand that. What do you mean?

PN302

MR WATSON: Well, your Honour, the agreement will be in place and will be able to - appropriate preparations can occur in terms of the engagement of people in accordance with that agreement.

PN303

THE VICE PRESIDENT: That the agreement may change over the 48 period?

PN304

MR WATSON: Yes, it may and that would be a new agreement effectively which the parties would then put in place a process of setting aside the first agreement so that the second agreement was the only one applies on an ongoing basis.

PN305

THE VICE PRESIDENT: How would you set aside the first agreement if it's certified?

PN306

MR WATSON: You would need to go through a process. Your Honour, it may well need to await a vote of employees that are engaged after a certain point in time but the provision regarding termination by agreement - - -

PN307

THE VICE PRESIDENT: No, no, I am familiar with the provision. It just doesn't seem to contemplate the termination of a greenfields agreement because of the reference to a valid majority.

PN308

MR WATSON: Well, it doesn't distinguish between different types of agreement.

PN309

THE VICE PRESIDENT: No.

PN310

MR WATSON: It's one single process but it is dependent on approval by a valid majority, but that's something with the support of unions and the company we wouldn't imagine there would be a difficulty. So it's really just a process issue and we say that in the event that agreement is made subsequently, that can be the process which enables the second agreement to apply to the project on its own. Your Honour, we know there has been the positive developments and we are very hopeful that an agreement will be reached, we don't believe that the circumstances are such as to require or suggest that it's more appropriate that your Honour's decision is deferred again.

PN311

THE VICE PRESIDENT: And the sole reason for that essentially is that for the next 48 hours that will allow you to prepare material for the engagement of people in the future?

PN312

MR WATSON: Well, your Honour, it brings an end to the process which has had a fair history in this Commission in negotiations and it establishes an agreement. True it is - - -

PN313

THE VICE PRESIDENT: Well, there is an agreement in existence now just we will certify the agreement.

PN314

MR WATSON: Yes. But the certification is an important step and clarification of the legal position as to the ability of the Commission to certify the agreement and the validity of the application given all of the arguments. The certainty that comes from that is important as far as a step in the process towards establishing appropriate industrial regulation. We think that that certainty in itself, that clarification was important. It should not be delayed unless it's absolutely necessary. We say that it is not necessary because we believe that there is appropriate mechanisms to put in place a new agreement should such an agreement be reached.

PN315

MR MELHAM: Your Honour, as I stated earlier, the AWUs position is to get the agreement certified with the comments I made earlier and in relation to the technical argument about how that can apply in real terms, sir, but as I say, I will be guided by your Honour on that issue. The only reservation I have, I am not totally certain that we cannot reach an agreement, but never die wondering whether we are going to reach an agreement on the other matters. But I will be guided by yourself in relation to 48 hours, but certainly the AWU would prefer the position to certify the agreement in the terms sought today, but again, as I said, I am happy to be guided by yourself, your Honour.

PN316

THE VICE PRESIDENT: Thank you, Mr Melham. Well, I suppose my position is I don't want to die wondering either. It appears that there's no intention by the company to employ anyone in the next 48 hours. I am not persuaded that the preparatory work that Mr Watson has referred to can't take place in the absence of formal certification, so I propose to adjourn until 4.30 on Thursday.
Mr Maddison, in answer to your question, I am available on Thursday to facilitate if that's the wish of the parties.

PN317

MR MADDISON: Yes. Perhaps if I could get back to you tomorrow on that, your Honour?

PN318

THE VICE PRESIDENT: Certainly.

PN319

MR MADDISON: I appreciate that.

PN320

THE VICE PRESIDENT: Nothing further? I will adjourn.

<ADJOURNED UNTIL THURSDAY, 17 MARCH 2005 [5.28PM]