AG2006/746, Transcript of Proceedings [2006] AIRCTrans 633 (12 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14751-1

COMMISSIONER WHELAN

AG2006/746

STEELCON CONSTRUCTIONS (NT) PTY LTD
AND
TERRITORY CONSTRUCTION ASSOCIATION
s.170LK - Agreement with employees (Division 2)
(AG2006/746)

DARWIN

9.31AM, TUESDAY, 04 APRIL 2006

PN1

THE COMMISSIONER: Good morning. Ms Devine is it, and Mr Perry, is that right?

PN2

MR B PERRY: That's right.

PN3

MS C DEVINE: Yes.

PN4

THE COMMISSIONER: This is an application for certification of an agreement. I have received in relation to that a copy of the agreement itself and statutory declarations that have been made in relation to the agreement by both of you who are here this morning. I just wanted to have a couple of questions that I wanted to raise in relation to the agreement, and you might be able to assist me with those, Mr Perry. The agreement indicates that the employees were all sent a notice saying that the employer intended to make this agreement. Do you recall that notice going out?

PN5

MR PERRY: Yes. We also had several meetings over a course of maybe a month, and everybody was aware and discussed all the details.

PN6

THE COMMISSIONER: Okay. And then there was a ballot conducted, and I have some stat declarations in relation to the outcome of that ballot, one of which was by you I think.

PN7

MR PERRY: That's right.

PN8

THE COMMISSIONER: Now, just in relation to the terms of the agreement itself, the agreement in terms of the calculations of the rates includes a number of factors, and one of those is that the rate is based on an assumption of 50 hours per week incorporative overtime. Could you just tell me where the 50 hours comes from?

PN9

MR PERRY: Well, normally we work 9 and a half hours a day and most times Saturdays. We end up I think on an average of about 54, 55, that's an average week if we work all the hours.

PN10

THE COMMISSIONER: Okay. So are you actually saying that the number of hours would often exceed 50?

PN11

MR PERRY: It normally would, yes.

PN12

THE COMMISSIONER: It normally would. Okay then, thanks, Mr Perry. If you don't mind just taking a seat. Ms Devine, I have a bit of a problem in terms of what Mr Perry has just said, because you've indicated that these rates are based on overtime for a 50 hour week, and certainly on the basis of that calculation the agreement would pass the no disadvantage test. But if the actual working are in excess of that then it may well not.

PN13

MS DEVINE: Yes, Commissioner. What we've done to get back to the 50 hours per week, we've actually done that over the weeks worked rather than the weeks of non worked time. So during the course of the year there would be weeks where the employees wouldn't work, when they're on annual leave and during slower periods. So the estimation of between 54 hours is based on a normal working week as far as their normal working week would be concerned. But when you divide that back over the actual number of weeks that they were working it came back to 50.

PN14

THE COMMISSIONER: Okay. Well, you might need to get some instruction on this, Ms Devine, but I think that I would want to have some sort of an undertaking that there would be some reconciliation conducted in relation to this to ensure that in fact the employees are being paid in such a way that they are not receiving any less than they would have had they been paid overtime under the provisions of the award. You may need to get some instructions in relation to that. But in terms of certifying the agreement I'd want that undertaking.

PN15

MS DEVINE: What we could perhaps provide to you, Commissioner, is the average as calculated from the employees over the payroll records over the past 12 months. We could provide that information.

PN16

THE COMMISSIONER: I don't need to know what you did last year. I want an undertaking that says there will be a reconciliation done on an annual basis to ensure that the actual hours that are being worked do not exceed an average of 50, and that if they do exceed an average of 50 that the company will ensure that people are not disadvantaged in terms of the fat that no overtime is being paid.

PN17

MS DEVINE: Yes, Commissioner, we can provide that.

PN18

THE COMMISSIONER: Okay, all right then. All right, is there any other matters that either you or Mr Perry want to tell me about in relation to the agreement? I've read it obviously and I've read your calculation sheets. Mr Perry?

PN19

MR PERRY: Yes, I think what Cheryl was trying to indicate was that while we may often work 54, 55 hours, by the time you take inclement weather, downtime, you know, slower periods, sometimes we only work 40 hours.

PN20

THE COMMISSIONER: Yes. No, I understand what she's saying is, that that's been averaged out over the whole year to come up with that figure. All I'm saying to her is, I think that you need once a year to just do a reconciliation to make sure that that's correct, that's all.

PN21

MR PERRY: Yes. It would average less than 50.

PN22

THE COMMISSIONER: Well, if it averages less than 50 you're doing well. Okay. All right then, thanks, Mr Perry. Ms Devine, is there anything else you wanted to say?

PN23

MS DEVINE: No. That sums up our application under Steelcon, thank you.

PN24

THE COMMISSIONER: Okay then, thank you. All right. Well, subject to that undertaking I'm satisfied that I should proceed to certify the agreement. The Steelcon Constructions (Northern Territory) Pty Ltd Certified Agreement 2006 will be certified from today's date in accordance with the terms of the agreement itself. It will have a nominal expiry date which is three years from that date. On receipt of the undertaking I'll issue the certificate.

PN25

MS DEVINE: Thank you.

PN26

THE COMMISSIONER: Thank you. Thanks, Mr Perry, you're excused now.

<ADJOURNED INDEFINITELY [9.38AM]