AG2006/2607, Transcript of Proceedings [2006] AIRCTrans 284 (2 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14339-1

COMMISSIONER HOFFMAN

AG2006/2607

APPLICATION BY BELL SCAFFOLDING PTY LTD & CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2006/2607)

BRISBANE

1.43PM, THURSDAY, 16 FEBRUARY 2006

PN1

MR M BELFIELD: I appear on behalf of the Master Builders and with me is MR J TATE of Bell Scaffolding.

PN2

MR R MOXHAM: I appear on behalf of the Construction, Forestry, Mining and Energy Union. With me is MS A KENT and MR D FENLEY also from the CFMEU who will be presenting our witness affidavit.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Belfield.

PN4

MR BELFIELD: Commissioner, I think it's worth noting at the outset that the union has attended, contrary to its submissions, that it refused to attend. It has not notified Bell Scaffolding that it now changed its mind in relation to the appearance in today's proceedings and, further, the applicant, Mr Moxham, has as I said prepared an affidavit for Mr Fenley to give evidence.

PN5

We haven't had the opportunity to look at that and we made a reasonable assumption based on the submissions of the union dated 7 February, quote, we refused to sign the agreement and to appear at the certification proceedings. There is obviously some disadvantage in relation to yourself, Commissioner, and the applicant.

PN6

THE COMMISSIONER: Well, I haven't seen it at all.

PN7

MR BELFIELD: Well, our understanding is that that is sought to be introduced in relation to the union's submission. It would appear also, Commissioner, and Mr Moxham obviously has the right of reply that my quick glance over the affidavit of Mr Fenley would be that the union would be intending to make submissions which would be further to those which are contained in its submission of 7 February.

PN8

Now, my understanding, Commissioner, is that for the purposes of expediting the matter that you were to be provided with written submissions going to the issues in relation to the application. Again I presume only that Mr Moxham will be making submissions in addition to that and again that is something which I would say is inconsistent with the intention of the proceedings today. Just for some formality, Commissioner, if I may provide you with an amended copy of the statutory declaration of Mr Kevin Bell.

PN9

This has been duly witnessed under the Act and it contains an amendment to the number of employees that were identified in the original statutory declaration, namely there were some 90 employees identified as being covered by the agreement as at the time of making the agreement. That was an error. I believe it was simply a typographical error. It in fact should be 80 employees.

PN10

Our submissions have been based on the fact that there were 80 employees employed by the company who were intended to be covered by the agreement at the time of the valid majority and I would ask if that could be accepted as an amendment to the statutory declaration.

PN11

THE COMMISSIONER: Yes, if you say that's the correct position that's attested to.

PN12

MR BELFIELD: Thank you, Commissioner. Commissioner, I intend to ask Mr Tate to give evidence in relation to our submission. I have provided a written submission and subject to a couple of amendments in the document itself, it's not our intention to make submissions outside those other than to extrapolate maybe on some of the points.

PN13

Given my earlier submission, Commissioner, in regard to the capacity of the Commission to properly examine the affidavits of Mr Fenley, I would be seeking a very brief adjournment so that I can have Mr Tate and the other representative from the company here today advise me as to the veracity of some of the statements that Mr Fenley has made. Otherwise I would not be in a position reasonably to cross-examine or test that evidence. If the Commission pleases.

PN14

THE COMMISSIONER: Thank you. I just want to establish in terms of the directions, was the fax or hard copy of the union's submission sent to yourselves by close of business on 10 February?

PN15

MR BELFIELD: Commissioner, I contacted the union office on the day and that was forwarded to me in the time requested. If the Commission pleases.

PN16

THE COMMISSIONER: And did you provide to the CFMEU and the Commission your submissions by the due date, 14 February?

PN17

MR BELFIELD: Yes, I did, Commissioner. The submissions were forwarded by fax, it would have been about 5 past 5 or 10 past 5. I also forwarded by email to your office a copy of the submission. If the Commission pleases. Sorry, if I may add, the affidavit of Mr Tate was not forwarded other than a reference to yourself that we intended to call Mr Tate in evidence.

PN18

That was advised to you I believe on the evening of the 14th, some time shortly after 5 pm. I didn't forward that same advice to the union, given my understanding reasonably at the time that they would not be appearing in respect of this application. If the Commission pleases.

PN19

THE COMMISSIONER: Mr Moxham, what advice has ever been given about evidence being called and that nothing was received with respect to that issue by 10 February?

PN20

MR MOXHAM: Commissioner, initially the letter that we supplied to the Commission as a result of directions was supplied to the Commission upon the Commission's request to outline why we were not signing the statutory declaration or the actual proposed agreement. Unfortunately, when your formal directions were delivered to the union, I was attending a conference in Sydney and was uncontactable for the Thursday and the Friday and it wasn't until the QMBA contacted our office that those directions had been sent to us, that our office became aware of them.

PN21

My new industrial officer who has only been with the union for two weeks then in the short period of time determined that she should forward a copy of the letter that had been sent to the Commission previously as our submissions. However, they were not drafted as submissions, specifically drafted as submissions for this matter, Commissioner.

PN22

Since that time, we have had at least two meetings with senior management of Bell's and we have informed the senior management of Bell's on both of those occasions that we would be attending today's hearing. Further, written submissions supplied by the QMBA were sent to the state CFMEU office and they were not sent to the CFMEU office that I reside in and I didn't receive a copy of those submissions until 10.30 yesterday.

PN23

Since receiving a copy of those submissions, I determined that there were matters in there that needed to be responded to and that the most efficient way of responding to those matters was via a witness affidavit from Dan Fenley who was the lead organiser who was attempting to negotiate the agreement with Bell's.

PN24

THE COMMISSIONER: When was that prepared?

PN25

MR MOXHAM: I finalised it at - Dan Fenley actually signed the affidavit at 1.15 today. He was not available to attend at the office to give an affidavit until 11 o'clock today and we have spent the hours between 11 and 1 o'clock today trying our best to get that affidavit finalised.

PN26

THE COMMISSIONER: Are you going to supply me a copy at some stage?

PN27

MR MOXHAM: Yes, Commissioner, it was our intention to hand up a copy and I can provide a copy of that to you now. Upon arriving in the Commission today, I immediately handed a copy of the affidavit to the QMBA. Likewise, as the QMBA has put to you, Commissioner, that they will be at a disadvantage and will require a brief recess to read over and assess the affidavit material of Mr Fenley, likewise the CFMEU will be at a disadvantage in that there is no written affidavit from Mr Tate and we will have no prior consideration of any of the evidence that he intends on providing today.

PN28

THE COMMISSIONER: I will stand adjourned for a short time while the affidavit is read.

<SHORT ADJOURNMENT [1.53PM]
<RESUMED [2.01PM]

PN29

THE COMMISSIONER: Yes, Mr Belfield.

PN30

MR BELFIELD: Commissioner, I seek to call Mr John Tate of Bell Scaffolding to provide a statement. I have a document, a statement, if I may provide that at this stage.

PN31

MR MOXHAM: Commissioner, can I please note on the record that we've had no copy of a written affidavit from Mr Tate and therefore no opportunity to form any submissions with regards to the submissions.

PN32

THE COMMISSIONER: Before we adjourned, you hadn't had the opportunity to read it. Why in heaven's name would you not give Mr Tate's affidavit and me?

PN33

MR BELFIELD: Well, Commissioner, on your return, with respect, I understood that there may be an opportunity for us to receive instructions in relation to that document. I have not yet completed examining Mr Fenley's document.

PN34

THE COMMISSIONER: But neither has Mr Moxham seen, nor me, Mr Tate's document.

PN35

MR BELFIELD: Well, Commissioner, I was going to take the liberty to provide Mr Moxham and yourself with Mr Tate's statement once having been provided with a period of time to examine Mr Fenley's. It was reciprocal and given the circumstances that Mr Moxham did not even advise me or you, Commissioner, that he would be attending, I thought that that would not be unreasonable. Now, I apologise if you anticipated that I should - - -

PN36

THE COMMISSIONER: Tit for tat really doesn't help in these matters. I will adjourn. I will think about adjourning this matter to another day, I think. The parties can confer briefly amongst themselves and have a read of the documents and I will consider when the matter can reasonably be dealt with. The Commission stands adjourned for a short time.

<SHORT ADJOURNMENT [2.03PM]
<RESUMED [2.15PM]

PN37

THE COMMISSIONER: We will start today with the evidence in chief of Mr Tate. The matter will then be adjourned until 10 am on 7 March 2006. No further evidentiary or other documents will be accepted from the parties in the Commission. After the affidavits have been finally produced today, they will be accepted. I would make the point that if in the meantime the company and its employees wish to make a collective agreement without the involvement of the union, they're free to do so under section 170LK of the Act. If they want to make individual agreements with the employer, they can do so in the form of AWAs or alternatively if they wish to make an agreement with the union which can be put to a proper vote and dealt with in accordance with the Act, that can happen as well. Yes, I will proceed to hear the evidence of Mr Tate.

<JOHN TATE, SWORN [2.17PM]
<EXAMINATION-IN-CHIEF BY MR BELFIELD

PN38

THE COMMISSIONER: Just in case your industrial staff don't know, when witnesses are being sworn there will be complete silence, no discussions. Yes, Mr Belfield.

PN39

MR BELFIELD: Mr Tate, do you have your statement before you?---I do.

PN40

For the record, could you just confirm your position with your employer?---Yes, I am the commercial manager and also a director of Bell Scaffolding Queensland Pty Ltd.

PN41

Did you prepare this statement before you?---I did in conjunction with the QMBA.

PN42

Commissioner, if I could have that identified, if I tender that document and have it identified.

EXHIBIT #A1 WITNESS STATEMENT OF JOHN TATE

PN43

MR BELFIELD: Commissioner, I can either ask Mr Tate to read into the transcript the evidence in chief or alternately take it as read.

PN44

THE COMMISSIONER: It is not necessary.

PN45

MR BELFIELD: Thank you. I have no further questions.

PN46

THE COMMISSIONER: The Commission stands adjourned until 10 am on 7 March.

<ADJOURNED UNTIL TUESDAY 7 MARCH 2006 [2.18PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN TATE, SWORN PN37
EXAMINATION-IN-CHIEF BY MR BELFIELD PN37
EXHIBIT #A1 WITNESS STATEMENT OF JOHN TATE PN42