AG2005/3219, Transcript of Proceedings [2005] AIRCTrans 780 (30 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10945-1

VICE PRESIDENT ROSS

AG2005/3219

APPLICATION BY THIESS JOHN HOLLAND JOINT VENTURE AND ANOTHER
s.170LL- Greenfields agreement (Division 2)
(AG2005/3219)

MELBOURNE

8.40AM, FRIDAY, 18 MARCH 2005

Continued from 17/3/2005

PN321

MR G WATSON: I seek leave to appear for Thiess John Holland Joint Venture and with is MR J RZESNIOWIECKI and MR D JOHNSON.

PN322

MR C MELHAM: I appear for the Australian Workers' Union and with me is MR C WINTER.

PN323

MR J MADDISON: I appear on behalf of the CFMEU, Construction, General and FEDFA divisional branches and I have with me today, MR KINGHAM and MR WASHINGTON, and I don't oppose for my learned friend in these matters.

PN324

THE VICE PRESIDENT: Thank you. Leave is granted, Mr Watson. Can you tell me where the matter is up to?

PN325

MR WATSON: Yes, I can, your Honour, and we thank the Commission for its indulgence and assistance in facilitating further discussions between all of the parties and we are happy to advise the Commission that an agreement has been reached between the Thiess John Holland Joint Venture and each of the unions represented here today. It is an important milestone in setting the scene for the commencement of this significant project and we will be seeking this morning the certification of two agreements to apply to the projects. The agreements are almost identical terms applying to each of the unions but they're separate agreements applying to each union.

PN326

Perhaps if I could commence with the paperwork and then address the tests as far as the Act is concerned. In the previous proceedings submissions were made regarding the AWU agreement and there is a replacement agreement in respect of the AWU. I hand a copy of that agreement to the Commission. There is a minor pagination issue, I just state that in handing that to the Commission.

PN327

THE VICE PRESIDENT: Thank you. Mr Watson, would it be convenient if you just point out the changes between the document I now have and the one that I was considering?

PN328

MR WATSON: Your Honour, can I come back to that in a moment?

PN329

THE VICE PRESIDENT: Yes.

PN330

MR WATSON: Perhaps if I can come back to that shortly. Can I also hand to the Commission a replacement letter which represents an exchange of letters or an agreement between the parties which the parties have agreed to put on the record in writing between them and tender to the Commission. We did this in a previous proceedings and this letter was an equivalent of an updated version. That might have been marked on the previous occasion.

PN331

THE VICE PRESIDENT: Certainly. Is there any significance in the fact that it has not been signed by Mr Shorten?

PN332

MR WATSON: No, that's not significant, your Honour. It's signed on behalf of the AWU.

PN333

MR MELHAM: No, your Honour, if I can address that point.

PN334

THE VICE PRESIDENT: Yes, Mr Melham.

PN335

MR MELHAM: It's not. I am authorised on behalf of the AWU to sign that letter.

PN336

THE VICE PRESIDENT: Okay. Thank you, Mr Melham.

EXHIBIT #JV1 LETTER REPRESENTING AGREEMENT BETWEEN THE PARTIES

PN337

MR WATSON: Thank you, your Honour. Can I hand also to the Commission an application for certification of the CFMEU agreement accompanied by the CFMEU agreement, together with a statutory declaration of Mr Rzesniowiecki and a statutory declaration of Mr Cummins of the CFMEU in relation to that agreement.

PN338

THE VICE PRESIDENT: In relation to the application in respect of the CFMEU agreement I will take steps to ensure that an appropriate AG number and files drawn up after the hearing and to the extent that it's necessary, would waive any compliance with any relevant rules that apply to the making of an application for the certification of such an agreement.

PN339

MR WATSON: Thank you, your Honour. The parties have agreed that the two agreements will apply in accordance with demarcation of work on the project and there is an agreed process constituting agreed items and an agreed process in relation to non agreed items which are agreed between the unions and we tender a copy of that document.

EXHIBIT # JOINT EXHIBIT 1 DOCUMENT RELATING TO THE TWO AGREEMENTS THAT APPLY IN ACCORDANCE WITH DEMARCATION OF WORK ON THE PROJECT

PN340

THE VICE PRESIDENT: I will ensure that a copy goes onto both of the files that relate to this matter.

PN341

MR WATSON: Yes.

PN342

THE VICE PRESIDENT: Do I take it that when you say that the agreements are intended to operate side by side as it were, the AWU agreement will apply to work which is demarked to the AWU in accordance with this agreement or the result of this agreement, that emerges from the process that is agreed between the parties, and similarly, the CFMEU agreement will apply to work that is demarked to the CFMEU?

PN343

MR WATSON: That is correct, your Honour.

PN344

THE VICE PRESIDENT: To the extent that I need to deal with it, do I take it that the agreements are in substantially the same terms?

PN345

MR WATSON: They are, your Honour.

PN346

THE VICE PRESIDENT: And on that basis, whilst it may be arguable that the agreements apply to a distinct operational or organisational unit within the enterprise, really given the terms of section 170LU(8), do I take it that you say that it's unfair that the employment of the employees is dealt with in this way?

PN347

MR WATSON: That's our submission. Even if it be assumed that they were separate organisational units we say that the operation of two agreements operating side by side to work that is demarked between the unions in substantially the same terms could not be said to be unfair and is an appropriate way to deal with the operation of this project and an appropriate way to resolve matters which have been the subject of very detailed discussions.

PN348

THE VICE PRESIDENT: Yes. For my part I accept that. I have some difficulty in concluding that they're separate or distinct organisational areas and in that sense form part of a single business within the meaning of the Act. But I am satisfied that there's no unfairness as a result and that it's an appropriate way of resolving the issues in this case.

PN349

MR WATSON: Yes. And we submit that the purpose of section 170LU(8) is that there is no unfair exclusion of employees from the terms of agreements and on that basis it is clearly not in this case.

PN350

THE VICE PRESIDENT: Yes.

PN351

MR WATSON: Can I return to the matters which are different between the previous AWU agreement and the new one. There are minor differences in titles and also an application and scope clause.

PN352

THE VICE PRESIDENT: Yes. I see that you have got the exclusion in, for example, the AWU agreement to work with the CFMEU/FEDFA on the project, is that the essence of - - -

PN353

MR WATSON: Yes. In 5.1 the work covered is that work demarked to the AWU, the AWU agreement.

PN354

THE VICE PRESIDENT: Yes.

PN355

MR WATSON: And the work demarked to the CFMEU is excluded. It's a corresponding change to the application clause in the other agreement. And in schedule 2.01, your Honour, around about page 55.

PN356

THE VICE PRESIDENT: Yes. Page 55 of the document I have. Is this the site allowance rate change?

PN357

MR WATSON: Yes, the site allowance is different to reflect the discussions which have occurred. There appears to be a typographical error. It's intended to be 18 months after 17 March.

PN358

THE VICE PRESIDENT: Rather than two years?

PN359

MR WATSON: Rather than two years. That should 17 September.

PN360

THE VICE PRESIDENT: We are relying - never mind. All right.

PN361

MR WATSON: September 2006, your Honour.

PN362

THE VICE PRESIDENT: I see. So the agreement between the parties is that the site allowance will be increased from the first full pay period on or after 17 September.

PN363

MR WATSON: 2006.

PN364

THE VICE PRESIDENT: 2006. I will make that notation on the agreement. It might be preferable if a replacement page is substituted for page 55. I have just been advised someone's mobile phone is on and it is interfering with the recording. Whoever is doing that would they mind turning it off? But I take it, Mr Watson, that it's a typographical error?

PN365

MR WATSON: It is a typographical error, your Honour. The agreement is
17 September 2006. The written version doesn't reflect the agreement. So we will substitute a replacement that reflects the agreement.

PN366

THE VICE PRESIDENT: Thank you.

PN367

MR WATSON: Your Honour, there is a letter also signed by the company provided to the CFMEU which we wish to provide to the Commission providing certain other understandings between the parties. It's a letter dated 17 March. I tender a copy of that letter. Can I say also, your Honour, that the parties have discussed further matters between them and it is intended that there be a further letter reflecting further understandings between the company and the CFMEU. There are some outstanding issues which we hope to be in a position to agree in the near future and we propose simply to forward a copy of that letter to the Commission for the purposes of the Commission's file.

PN368

THE VICE PRESIDENT: And does that letter deal with understandings as to how the agreement is to operate?

PN369

MR WATSON: Yes, it does.

PN370

THE VICE PRESIDENT: And reflecting the mutual intention of the parties, is that - - -

PN371

MR WATSON: Correct.

EXHIBIT #W1 LETTER REFLECTING FURTHER UNDERSTANDINGS BETWEEN THE JOINT VENTURE AND THE CFMEU

PN372

MR WATSON: And can I just say that the other letter which we foreshadowed deals with the issues of critical program work and also union fee deductions and subcontractors. Your Honour, we otherwise rely on our submissions we have made. We say that those matters have been covered. The application for certification of the former AWU agreement is withdrawn and we apply for certification of the substituted agreement in lieu. We ask that both agreements be certified at the same time and unless there is anything further, those are our submissions.

PN373

THE VICE PRESIDENT: No. I put a number of questions to you on the last occasion in relation to the initial agreement between the Joint Venture and the AWU. Other than the dates as to when the agreement was made, et cetera, do you adopt - sorry, and other than the changes you have drawn my attention to, do you adopt the answers you gave in relation to that matter in relation to the two agreements that are now before me?

PN374

MR WATSON: We do, your Honour, and we adopt those answers and we say that they are also confirmed by the statutory declarations filed in both matters confirm the substance and despite the changes that have been made to the new agreement the statutory and the representations contained therein and the submissions made apply equally to the current agreements that are before the Commission

PN375

THE VICE PRESIDENT: And given the effluxion of time, were these agreements both made before the employment of any of the persons who will be necessary for the normal operation of the business and whose employment will be subject to the agreements?

PN376

MR WATSON: They were, your Honour, and there have not been employees engaged by the Joint Venture to perform covered by these agreements to date.

PN377

THE VICE PRESIDENT: Okay. Thank you, Mr Watson. Mr Melham?

PN378

MR MELHAM: Thank you, your Honour. The AWU welcome the development over the last few days and certainly the inclusion of the CFMEU on the project and we hope the certification of the two agreements today will deliver the desired outcome, which all the parties would like to achieve on this project.
Your Honour, in relation to the agreements, we concur with the submissions made by the company, that is, the agreement does meet the requirements of the Workplace Relations Act and the agreement should be certified as per the terms sought.

PN379

What other issues I would like, your Honour, to talk about which is exhibit 1 in relation to demarcation matter, just a point of clarification. In relation to point 4, suggested compromise, the trade and claim coverage from the AWU point of view will say that's still subject to some further discussions and that can be read in conjunction with the non agreed area in relation to the construction and fit-out of tunnel. We would see these two go hand in hand.

PN380

THE VICE PRESIDENT: Yes. So you haven't agreed to that trades and claim coverage would be the CFMEU, you say that's an issue that would be discussed further between the parties?

PN381

MR MELHAM: That is correct, your Honour, and same will go to the labourers on the structure and bridges, that's going to be dealt with as well in a non agreed area and that to be subject to further facilitation. I am not sort of planning to sort of change the text in the documents but I just want to make these points on transcript and that can be dealt part of the facilitation process. And the last issue on that, Commissioner, obviously we would be looking at putting a mechanism in place to facilitation the implementation of the demarcation's outcome when that occur.

PN382

Finally, your Honour, just I take the opportunity again to thank this Commission for the role you have played in facilitating us getting agreements in place and getting it hopefully certified today and that's much appreciated by the AWU and its members. If the Commission pleases.

PN383

THE VICE PRESIDENT: Thank you, Mr Melham. Mr Maddison?

PN384

MR MADDISON: Your Honour, can I firstly address, you asked Mr Watson about the changes. He you referred to a couple. I just wanted for the purposes and the sake of the record to refer to a couple of other changes which didn't appear to be referred to by my learned friend. Firstly, in clause 37, income protection, there are increased benefits now in the agreement. It's on page 37 of my copy, your Honour. I am not sure if we are all working off the same script, although we appear to be a bit more though than in previous hearings before you.

PN385

THE VICE PRESIDENT: Yes.

PN386

MR MADDISON: There is increased benefits, just for instance, in the death insurance and VAC top up. I don't seek to take that any further, just to point them out. Also what we would also say is not necessarily increased benefit but certainly a change in the project monitoring committee and it's clause 11 which starts on page 8 and goes over onto page 9. There's an inclusion that there will be a formal review of the project RDO calendar and we say that that's important given the kind of calendar that we have on this project which is somewhat perhaps revolutionary in certain terms and we felt it was important that the monitoring committee does have a role in overseeing it. So there's just two other matters that we had sought to point out.

PN387

THE VICE PRESIDENT: Just while we are on the latter matter.

PN388

MR MADDISON: Yes.

PN389

THE VICE PRESIDENT: The monitoring committee is dealt with in both agreements. Do I take it we are talking about one monitoring committee with representation from both unions rather than two separate ones?

PN390

MR MADDISON: That's certainly my understanding, your Honour, and everyone is nodding their head vigorously. In respect of the certification, unlike previous hearings before you, are now sort of adopt and concur with the submissions put by Mr Watson and we do seek the certification of what we refer to as the CFMEU agreement. Again, Mr Watson indicated there's a couple of more documents that we will provide in the next couple of days, if not today probably on Monday or early next week, one dealing with payroll deductions and the second one dealing with two other matters, critical program and subcontractor arrangements.

PN391

Finally, your Honour, I just want to take Mr Melham on behalf of the AWU referred to the demarcation agreement. Your Honour, we just want to just state for the purpose of the record that we have signed up to it in the terms that it is and we note point 6, facilitation, that it is a process saying it resulted in the non agreed areas. I note that Mr Melham raised matters that are in the suggested compromise, but we just sought to make that clear, that we have signed up to it in the terms that it is.

PN392

THE VICE PRESIDENT: Do I take it that there is a recognition of the machinery implementation issues will need to be addressed in the facilitation?

PN393

MR MADDISON: Certainly, your Honour. Whatever comes out of that facilitation it will need to be those kind of matters which haven't been really discussed in any detail, if at all yet, and I have no doubt that they will be.

PN394

THE VICE PRESIDENT: Yes. I mean as I - - -

PN395

MR MADDISON: And presumably the parties are at liberty to raise whatever they like at facilitation but we just wanted to make clear that we have signed to a specific document that has specific words in it. Just finally, your Honour, we do on behalf of the CFMEU, do thank your assistance in this interesting process which has, thankfully, led to the agreements before you today and hopefully the certification of the two agreements. Thank you, your Honour.

PN396

THE VICE PRESIDENT: Thank you. In relation to the certification of the agreements, I am satisfied that each of the applications before me meets the relevant statutory tests and I will issue certificates certifying the agreements. That will be done shortly and I will issue the certificate with the attached agreement on receipt of the replacement page dealing with the site allowance issue. All right. Nothing further? My thanks to the parties and congratulations on coming to an end to this process.

<ADJOURNED INDEFINITELY [9.03AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #JV1 LETTER REPRESENTING AGREEMENT BETWEEN THE PARTIES PN336
EXHIBIT # JOINT EXHIBIT 1 DOCUMENT RELATING TO THE TWO AGREEMENTS THAT APPLY IN ACCORDANCE WITH DEMARCATION OF WORK ON THE PROJECT PN339
EXHIBIT #W1 LETTER REFLECTING FURTHER UNDERSTANDINGS BETWEEN THE JOINT VENTURE AND THE CFMEU PN371