C2006/2010, Transcript of Proceedings [2006] AIRCTrans 683 (26 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14840-1

COMMISSIONER SIMMONDS

C2006/2010

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, TASMANIAN DIVISIONAL BRANCH
AND
WELDING AND FABRICATION PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2010)

HOBART

10.31AM, WEDNESDAY, 12 APRIL 2006

PN1

MR B WHITE: I appear for the Construction, Forestry, Mining and Energy Union.

PN2

THE COMMISSIONER: Yes. Thanks Mr White. There appears to be no appearance for the company. It may be - I understand, Mr White, that the company has changed its name. Is that the situation?

PN3

MR WHITE: Yes the company has changed name, Commissioner. Now trading under Industrial Engineering Tas Pty Ltd, but he still responds to Welding and Fabrication. In fact he's still lodged at the - and sent his returns into Tas Build, the long service Fund, under the name Welding and Fabrication so I am not real sure the details there, what goes on.

PN4

THE COMMISSIONER: Anyhow they have been advised of the hearing. My associate has made contact with the company at the address you have given us, or at the phone number and we are advised that the principal, the person involved is not there. He's at, and I think the quote is, "At a job in …..". My associate has left a message on his mobile phone. We have waited some time for him to call back. I understand you have also made contact with the solicitors of the company and they are on holidays.

PN5

MR WHITE: That's correct, Commissioner.

PN6

THE COMMISSIONER: Okay. Well it makes it pretty hard to proceed but you might as well tell us the story and what we can do is, to provide the transcript of today's proceedings to the company and seek their response to what you put, either in writing or verbally depending on what their offer is, what the option is, then we can take it from there. But I think if you can tell us what the case is against them, that much we can deal with.

PN7

MR WHITE: Yes. Thanks Commissioner. Welding and Fabrication have an existing enterprise agreement that's reached the nominal expiry date on 21 June 2003. The enterprise agreement has never been replaced and has never been withdrawn from. The specific dispute is in relation to clauses 14, redundancy and clause 15, superannuation of that enterprise agreement. Clause 14 says that the company shall contribute $30 per week for award based employees to ACIRT. Got documentation that we can put up or will put up.

PN8

There's evidence to show that he is not, the company's not registered with ACIRT and never has been. In clause 15, superannuation contributions are paid monthly by the company on behalf of employees to Cbus. The company has not made a contribution to Cbus since April 2004 and the company is registered under the name of Welding and Fabrication with Tas Build, the portable long service fund, and a letter from Tas Build says that the employer registered on 10 April 2002 and the employer currently has two workers registered with the fund and is up to date on his returns and payments.

PN9

So obviously our argument is if he has got two workers registered with the Tas Build fund, those two workers should be receiving the entitlements under the enterprise agreement. The enterprise agreement has a disputes resolution clause. That's at 19. As far as the steps go to satisfy that clause for today's proceedings, step 1, the site employee spokesperson is to discuss the issue with the general foreman. There is no and never has been with the company, a site employee spokesperson. Nobody wants to - or nobody has been willing to take on that role.

PN10

Step 2 involves an employee spokesperson again so obviously that hasn't occurred. Step 3, the consultative committee is to adjudicate on the issue et cetera. There has never been a consultative committee. Nobody saw the need for it. Nobody within the organisation saw the need for it so we have been to step 4 a number of times. The relevant union representative and project manager to have discussions. Well the project manager is always the - David Marshall, the owner of the business.

PN11

We have had discussions in the past. Senior union officials, myself and senior management, Mr Marshall, have had a number of discussions over a number of years about these issues which have resulted in us coming before the Commission before for one employee. No that didn't, sorry, I will - that didn't come to the Commission. That was fixed up before we had to come to the Commission and then for a - and that involved the payment of ACIRT and Cbus and what happened, that employee, unbeknown to us but anyway he was finishing up anyway.

PN12

He agreed for the money not to be paid into ACIRT, the fund, he just took the money in payment himself to save putting it in the fund and then taking it back out anyway. The other matter was before the Commissioner a few times and that was C2004/80 and that involved an employee who had various claims, including superannuation and ACIRT, underpayment of wages et cetera and the employer didn't worry about turning up for a couple of conferences before Deputy President Leary.

PN13

Finally the employer's solicitor turned up but the main – well that dispute was actually about the failure of the employer to provide wage and time records and we received a direction from Deputy President Leary that said that the employer make available to the CFMEU representative wage records as requested. The matter will be listed for further conference or hearing in Hobart on 2 July 2004 at 2.15 pm and then if necessary the employer will be summonsed to attend and/or provide documents sought by the CFMEU representative.

PN14

We ended up receiving those documents and, as we know, the Commission couldn't take matters any further so that's been lodged in - or some time now been lodged in the Magistrates Court and interestingly the first couple of times in the Magistrates Court, the employer's solicitor didn't turn up there either but things are proceeding. It's listed for hearing on 5 May this year. The application that was sent in - I was on leave at the time and the application that we sent in was incorrect in a way that it says that the procedures have been lodged, the procedure and lodged proceedings in the Magistrates Court in Tasmania in an attempt to resolve this matter.

PN15

That's not in relation to this matter. That is just in relation to one employee. The reason I bring those things up is that I think we can show that over a long period of time now, we have been through the disputes settling procedure in an attempt to resolve this and I would like to hand up some documents, please, just to support our claim. And they are in relation to Tas Build, Cbus and ACIRT. Just to support our claim that the employer is in breach of clause 14 and 15 of his EBA.

PN16

THE COMMISSIONER: Okay, look I will deal with this.

EXHIBIT #W1 CORRESPONDENCE FROM TAS BUILD
EXHIBIT #W2 CORRESPONDENCE FROM CBUS
EXHIBIT #W3 CORRESPONDENCE FROM ACIRT

PN17

MR WHITE: And just briefly, Commissioner, what we are seeking is under section 170LW which I - under the Workplace Relations Act which I believe we can still proceed with, is that we seek an order from the Commission, and obviously I know you are going to have to receive something from the employer before you can do that but we are seeking an order from the Commission that the employer abide by his EBA and make, commence making payments to ACIRT and Cbus and make back payments for his existing and past employees that come under his EBA. Come under the scope of the EBA.

PN18

And if the Commission sees a need, is reluctant to issue such orders, to at least under section 131 appoint a Board of Reference to deal with the matter but obviously we would prefer the orders from the Commission. Without the employer being here that is just a brief overview of it, so.

PN19

THE COMMISSIONER: Yes, I think you have got some difficulties here. The dispute settlement procedure doesn't provide for the issuing of an order by the Commission. It simply says that the decision of the - I think there's a typo there but a decision of the AIRC will be binding on the parties. Now I think the effect of that is that I have to make a decision and it's up to me to make a decision in regard to your claim and if they don't comply with that decision then they would be, at least on one argument, in breach of the agreement and you would have to prosecute them for breach of the agreement.

PN20

MR WHITE: Yes.

PN21

THE COMMISSIONER: That's as I read the dispute settlement procedure there. That the power that the parties have given, the power that the parties to the agreement have given the Commission is the power to make a decision, not to make an order.

PN22

MR WHITE: No problem with that, Commissioner, I will re-phrase my request then.

PN23

THE COMMISSIONER: Yes.

PN24

MR WHITE: That I request a decision from the Commission after obviously giving the employer a chance to respond.

PN25

THE COMMISSIONER: Yes on the claim.

PN26

MR WHITE: And then seek a decision from the Commission and obviously if we have that decision and he doesn't want to abide by that, then the next step is through the courts.

PN27

THE COMMISSIONER: Yes. Now what name does the company - is the situation this, that the company no longer exists or is it that the company has changed its name, or is it that the company is operating under a trading name? Do you know any of that?

PN28

MR WHITE: The limited research that we have done on this, that the company traded under the name of Welding and Fabrication then just changed the name and continued on with the same employees and the same business - - -

PN29

THE COMMISSIONER: Well I think you would probably need to do a bit more research because there is a company known as Welding and Fabrication Pty Ltd that is registered with Tas Build.

PN30

MR WHITE: Yes.

PN31

THE COMMISSIONER: And Tas Build as I understand it is a statutory scheme set up by legislation.

PN32

MR WHITE: Statutory scheme, yes.

PN33

THE COMMISSIONER: And they are, currently have two - that company currently has two workers registered with Tas Build.

PN34

MR WHITE: That's correct, yes.

PN35

THE COMMISSIONER: Now that seems to imply that the company is operating.

PN36

MR WHITE: Yes.

PN37

THE COMMISSIONER: And operating as Welding and Fabrication Pty Ltd.

PN38

MR WHITE: Yes.

PN39

THE COMMISSIONER: Now I understand that they are in the phone book under some other name.

PN40

MR WHITE: They are trading under, yes they are trading under the name Industrial Engineering Tas Pty Ltd.

PN41

THE COMMISSIONER: Well, that must be another company because the words Pty Ltd suggest that it is another company.

PN42

MR WHITE: It's another company.

PN43

THE COMMISSIONER: Now it may be that it is Welding and Fabrication Pty Ltd has changed its name to that and they haven't bothered changing their name and registration with Tas Build. Are you sure it's Industrial Engineering Pty Ltd or was it just Industrial Engineering?

PN44

MR WHITE: Well, we got Tom Roberts of our Federal Office, or this is what I am, sorry, when I say we got them, I'm told by our secretary, as I said I was on annual leave at the time but that Tom Roberts requested him to do a search on it and Tom's note is that they are now trading as Industrial Engineering Tas Pty Ltd so I would assume that the national office research would have been correct and I would assume - - -

PN45

THE COMMISSIONER: Yes but it doesn't take us to the detail of that and you are going to need the detail, or the Commission is going – if I am to make a final decision in this matter I am going to need to know that the company I am making a decision about, is the company that is respondent – you see it may be that all we are doing is complicating the whole thing.

PN46

MR WHITE: Yes.

PN47

THE COMMISSIONER: It's possible that Welding and Fabrication Pty Ltd employs people. It is possible - well, and on the basis of the return to Tas Build it employs two people.

PN48

MR WHITE: Yes.

PN49

THE COMMISSIONER: But it may be that they have changed their name or that there is a successor company to Tas Build, in which case they have picked up the enterprise agreement. But the - all of that I need to know before I can bind anyone other than Welding and Fabrication Pty Ltd to any decision.

PN50

MR WHITE: We'll do a - - -

PN51

THE COMMISSIONER: But I think - - -

PN52

MR WHITE: I will get the search that Tom Roberts did. I will get him to send it down and then if I may I will forward that on to the Commission?

PN53

THE COMMISSIONER: Yes that's fine but we'll have to forward it on to them too.

PN54

MR WHITE: Yes.

PN55

THE COMMISSIONER: So, I mean the problem that we are in is that there has been no appearance for the company. So I can only forward to the company and seek a response on the basis of what's been said today and we will hear what they have got to say. But I don't think I can second guess what that's going to be in any way at all but I hear what you are saying. There are some loose ends and you are going to try and tie those loose ends up with some correspondence to the Commission.

PN56

MR WHITE: Yes.

PN57

THE COMMISSIONER: Right. We will forward copies of that correspondence along with the – well not necessarily along with, we will – what I propose to do is this. When the transcript becomes available obviously you will get a copy and we will forward a copy to Mr Marshall at Welding and Fabrication Pty Ltd and/or the other company.

PN58

MR WHITE: Yes.

PN59

THE COMMISSIONER: Whose name escapes me but by then we will have the address because your search will give us that too, and I will be seeking his response to the information that you have provided today that is on transcript and whatever else it is that you provide me with.

PN60

MR WHITE: Okay Commissioner.

PN61

THE COMMISSIONER: With a direction that he file that in the Commission and send a copy to you so that you're aware of it and then I think the ball will then be in your court to tell me what more you want to do. Because you obviously got the opportunity to respond to whatever they put in.

PN62

MR WHITE: All right.

PN63

THE COMMISSIONER: So whether we put it on for another hearing or whether we just do it on the papers that is a matter for consideration once we have got whatever we have got from them. I will give them 14 days after the receipt of the transcript and the other material in which to respond. Is that - - -

PN64

MR WHITE: That sounds good to me, Commissioner.

PN65

THE COMMISSIONER: Convenient to you?

PN66

MR WHITE: Yes.

PN67

THE COMMISSIONER: All right. Well look I think I'll – unless there's some more that you want to put to me on this matter? We will adjourn on that basis.

PN68

MR WHITE: I'll leave it at the moment. The other evidence that I would put up is probably a waste of time at the moment. It's just in case the employer says that the employees are not covered under the EBA or under the award. Just evidence to show that he is in the construction industry.

PN69

THE COMMISSIONER: I think you had better put that up because I think he needs to have everything in front of him that you've got.

PN70

MR WHITE: There's a note, I suppose you could call it, from Welding and Fabrication and it's about an employee, Hamish Dundas, and he's got on his notes the award, applicable award agreement, National Building & Construction Industry Award. Classification is labourer.

PN71

THE COMMISSIONER: So, this is the wages record that they provided in response to the directions of her Honour, DP Leary, is it?

PN72

MR WHITE: That's right, yes.

EXHIBIT #W4 NOTE FROM DAVID MARSHALL TO HIS SOLICITOR MR MICHAEL DALEY DATED 30/01/2004

PN73

MR WHITE: There's the directions from DP Leary. Do we need those or
just - - -

PN74

THE COMMISSIONER: No. They have got that. You are referring to the directions that she issued, are you?

PN75

MR WHITE: Yes.

PN76

THE COMMISSIONER: They have got a print number? No?

PN77

MR WHITE: Just the c number. I can't see - - -

PN78

THE COMMISSIONER: You better lodge. Better give us them then.

EXHIBIT #W5 DIRECTIONS FROM DEPUTY PRESIDENT LEARY IN C2004/80 DATED 27/05/2004

PN79

MR WHITE: There's a note from David Marshall, Welding and Fabrication to his solicitor Michael Daley which is an answer to questions from DP Leary in that direction about Hamish Dundas which just go to show that he was working under the EBA and work he did, where he worked, that sort of thing. Just to show it comes under the construction industry.

EXHIBIT #W6 NOTE FROM WELDING AND FABRICATION PTY LTD DATED 26/07/2004

PN80

MR WHITE: There's a letter dated 26 March 2002 to David Marshall from myself. This is in relation to another employee, Karl Spouse, and this letter is attached ….. a fax from Welding and Fabrication, Commission notices and some examples of pay packets in relation to Karl Spouse.

PN81

THE COMMISSIONER: What's the relevance of that document, Mr White?

PN82

MR WHITE: Just to show that we've been through the - - -

PN83

THE COMMISSIONER: Look I don't think that's necessary.

PN84

MR WHITE: You don't need that one? Right.

PN85

THE COMMISSIONER: No I am entitled to accept submissions from the bar table unless they are contradicted and they are obviously not contradicted this morning.

PN86

MR WHITE: But you don't need a copy, obviously the same thing with the summons from the Magistrates Court.

PN87

THE COMMISSIONER: No.

PN88

MR WHITE: Well that's - - -

PN89

THE COMMISSIONER: Sorry, to whom is the summons directed?

PN90

MR WHITE: Who was it directed?

PN91

THE COMMISSIONER: Yes.

PN92

MR WHITE: Welding and Fabrication.

PN93

THE COMMISSIONER: Yes.

PN94

MR WHITE: The proper office of Welding and Fabrication.

PN95

THE COMMISSIONER: Yes, okay. All right. Well look, what I am going to do then is to formally adjourn this proceeding to a date to be fixed. In the meantime I'm, I think just to clarify the situation I will direct you to provide further information regarding the company search of Welding and Fabrications Pty Ltd but you have already indicated you are going to provide it.

PN96

MR WHITE: Yes.

PN97

THE COMMISSIONER: I will direct you to provide that and I will then forward the transcript. I won't, but the Commission will then forward the transcript and that documentation you provide along with the exhibits, copies of the exhibits that have been tendered this morning to Mr Marshall seeking his response within 14 days and directing him to file that response in the Commission in Hobart and to serve a copy of that response on you at the registered office of the Tasmanian branch of the CFMEU and we will adjourn the proceedings on that basis.

PN98

MR WHITE: Thanks Commissioner.

PN99

THE COMMISSIONER: Thanks Mr White.

<ADJOURNED INDEFINITELY [10.54AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 CORRESPONDENCE FROM TAS BUILD PN16
EXHIBIT #W2 CORRESPONDENCE FROM CBUS PN16
EXHIBIT #W3 CORRESPONDENCE FROM ACIRT PN16
EXHIBIT #W4 NOTE FROM DAVID MARSHALL TO HIS SOLICITOR MR MICHAEL DALEY DATED 30/01/2004 PN72
EXHIBIT #W5 DIRECTIONS FROM DEPUTY PRESIDENT LEARY IN C2004/80 DATED 27/05/2004 PN78
EXHIBIT #W6 NOTE FROM WELDING AND FABRICATION PTY LTD DATED 26/07/2004 PN79