C2007/296, Transcript of Proceedings [2007] AIRCTrans 95 (5 March 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16528-1

COMMISSIONER BLAIR

C2007/296

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
DOWELL WINDOWS
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/296)

MELBOURNE

11.26AM, MONDAY, 19 FEBRUARY 2007

PN1

MR K REIDY: I appear on behalf of the CFMEU. Appearing with me today is MS R REID of the CFMEU.

PN2

MR M BROWN: I appear on behalf of Dowell Australia in this matter. Appearing with me today MR M SPENCER who is Operations Manager of the Bayswater site.

PN3

MR J SADDINGTON: I appear on behalf of the AWU and seek leave to appear.

PN4

THE COMMISSIONER: Mr Saddington, is it?

PN5

MR SADDINGTON: Yes, Commissioner.

PN6

THE COMMISSIONER: Thank you, Mr Saddington. Does anybody have any objections to Mr Saddington on behalf of the AWU seeking leave to intervene? Mr Reidy.

PN7

MR REIDY: No objection, Commissioner.

PN8

MR BROWN: No objection.

PN9

THE COMMISSIONER: Thank you. Leave is granted. Thanks, Mr Saddington. Mr Reidy.

PN10

MR REIDY: Commissioner, I'd like to start by handing up to you a copy of the Boral Windows Ltd Bayswater Enterprise Agreement 2003.

PN11

THE COMMISSIONER: Thank you.

PN12

MR REIDY: Commissioner, if I can get you to turn to page number 2 of that agreement, I will be referring to clause number 4 under the heading period of operation. It says for the current agreement it operates from the period 1 October 2003 until 30 September 2006. I just say at this point this agreement is still on foot as it hasn't been terminated. It then goes on to say that during the period of May to August 2006, the parties agree that they will meet to negotiate a subsequent agreement which will be effective from 1 October 2006 and then it says:

PN13

The parties agree to use their best endeavours to try and conclude the negotiations during that time frame, May to August 2006.

PN14

Commissioner, I just start with that clause and I will now run you through the facts surrounding the negotiations for a replacement agreement. The organiser for the FFTS branch of the CFMEU got in touch with the company in May 2006 and I believe that other organisers of the other two unions also got in touch with the company in the early part of 2006 and asked that the company - reminded the company that negotiations for a new agreement needed to take place and I believe that the negotiations for this current agreement took around about five months, so I think that's why that clause is in there, because we want to get a start on early and not leave it to the point where there's a week to go and the agreement is about to run out, so it was made clear to the company that the unions were willing to meet with them and negotiate a new agreement.

PN15

There was no response from the company, or I suppose by that admission, they wanted to leave it to a later date. Nonetheless, my branch of the CFMEU gave the company a draft EBA which is what we thought we would use as a first draft to start the negotiations. We didn't receive any response to that, Commissioner. Eventually a meeting took place in the first half of August 2006 involving all the unions and the company. At that point, the company asked the unions essentially what their log of claims was and the unions told the company that they hadn't had a chance to speak to the members and that that needed to happen before any negotiations could take place.

PN16

The company to its credit organised a meeting of the members, a log of claim was developed and that was around about 17 August 2006, Commissioner, and that log of claims was given to the company. The company issued a draft EBA and I believe it was faxed to the unions on 5 September 2006, so we're already outside the time frame - sorry, Commissioner, three weeks to the end of the time frame set out in the current EBA to negotiate this new agreement.

PN17

The unions found the terms of that first draft agreement from the company to be unsatisfactory. They sought to meet with the company. I believe a number of meetings were held, five meetings in all, going to the end of the year and all those meetings took up around about 45 minutes cumulatively and it was simply, it seems to be there was a process where the company walked into the meetings, put an agreement on the table and said that's the agreement, take it or leave it, it's up to you, you have to go and sell it.

PN18

At this point I would just reiterate that in the current agreement it does say that the company and the unions are supposed to use their best endeavours to negotiate a new agreement. I don't think that that's really keeping to the spirit of that term of the agreement, Commissioner, to just walk in, hand an agreement over and demand that the unions have to sell that agreement on behalf of the company. Nonetheless, there was a period of time passed obviously with the annual leave, with the break for annual leave and the company developed a final draft agreement which it presented to the unions.

PN19

It also presented it to all of the unions' members at the Boral site, all its employees that were going to be covered by this new agreement. At the time, that agreement still hadn't included all the unions. It was a union collective agreement. That agreement, Commissioner, went out to the members of the unions without the unions actually having seen it or the unions actually having agreed to it, to even go out to their members.

PN20

Under the terms of the post Work Choices Workplace Relations Act, Commissioner, it's a requirement that the unions actually sign off on an agreement before it goes to their members, so the company was in breach of that and I actually sent a letter to the company just setting out that they're supposed to take reasonable steps to make sure that all their employees see any draft agreement. That means seven days before the agreement goes out to the vote, that they're given an information statement and they're provided a reasonable opportunity to decide if they want to approve the agreement and in effect the agreement was handed out on the morning of 9 February and a vote was taken later that day and I don't think that that process really meets the requirements of the Workplace Relations Act, setting aside the fact that the company didn't even have the approval of the unions to put the agreement out.

PN21

Nonetheless, the company, despite getting that letter, they went ahead with the vote, anyway, and in effect after the vote took place it was found that the employees did not approve the agreement, so the company's response to that was to take the unions out of the agreement and instead use a non-union collective agreement. This agreement is essentially exactly the same in terms as the one that went to the vote on 9 February, apart from the fact that there's no mention of the unions.

PN22

That brings me to the point where I wanted this matter heard urgently, Commissioner, is that there's a vote that's supposed to take place for that non-union agreement on Wednesday of this week. Now, I believe that by acting in the way it has, Commissioner, the company has failed to meet its obligations under clause 4 of the current agreement. It's failed to seriously negotiate with the unions during that time frame and it says there, Commissioner, in that clause also that any new agreement will be effective from 1 October 2006.

PN23

Now, the company said to its employees that if this agreement does not get voted up on Wednesday, they will not be receiving any back pay, so I believe that that's a breach of that clause there that says it will be effective from 1 October. You can imply from that you expect that any pay increases will be effective from 1 October also, Commissioner, so the company is essentially trying to coerce its members into agreeing to something that the unions haven't even approved in order to get their back pay.

PN24

I can say, Commissioner, that an organiser of my union at least and I believe the other unions went out to Boral last Friday and we got about 12 members out there to sign bargaining agent authorisations to say that if anything is going to take place, the employees or our members want the company to negotiate with representatives of our union. None of that has taken place, Commissioner. This is a collective agreement that the union does not support.

PN25

We have a number of issues with it, Commissioner. There's three that I can identify, if you would like me to, Commissioner, but apart from those three, I am certain there will be others as well. We really haven't had a good chance to check the agreement and see the exact problems that we have with it. I'm sure there'll be a number. What we're seeking today, Commissioner, is a conciliation presided over by yourself so that the company can be made aware of the fact that it's breached several clauses of the Workplace Relations Act.

PN26

It has an obligation under the current agreement to meet with the unions to negotiate a new agreement and that it should meet those obligations under the terms of the agreement. I would rely upon further in the current agreement the dispute resolution procedure that says that there is a process to be followed. While that process is followed to resolve disputes, the status quo has to remain and, Commissioner, that's clause number 20. It says there at clause number 20.6 on page number 7 that:

PN27

While the above procedures are being observed, work will continue normally.

PN28

I think you can draw from that that it means that while the dispute is in the process of being resolved, the company can't put out another agreement to exclude unions from being present at their workplace to overcome the disputes procedure, Commissioner, so that's what I ask for, Commissioner, that we have your assistance to get the company essentially back to the negotiation table to meet their obligations under this agreement and complete an enterprise agreement that includes the unions as the members of the unions want.

PN29

Now, the unions are more than happy and we've been asking for a few months now to sit down with the company and for genuine bargaining to take place and if that does occur, then this agreement can be wrapped up pretty quickly in the interests of the company and our members as well. If the Commission pleases.

PN30

THE COMMISSIONER: Thank you. Mr Saddington.

PN31

MR SADDINGTON: Commissioner, I think my colleague has completely covered the actual issue, so I have nothing further to add, Commissioner.

PN32

THE COMMISSIONER: Thank you. Mr Brown.

PN33

MR BROWN: Commissioner, just briefly in response to the unions' submissions, we can characterise negotiations as we all see fit. We could sit here for half an hour and talk about our view of how it's negotiated and progressed since last year. I am not going to waste the Commission's time with those sort of details on the record. The unions' application at this stage is to go into conference. I am more than happy to do that.

PN34

THE COMMISSIONER: All right, the Commission will go into conference.

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PN35

THE COMMISSIONER: The Commission has had an opportunity to have a conference with the parties. Arising from that conference, the Commission believes along with the parties that we have an agreement in principle. The agreement is along these lines. The wage rises proposed by the company and the schedule proposed by the company for those pay rises shall be included in an EBA.

PN36

The operative date on the basis that the agreement is accepted shall be 1 October 2006 - sorry, there will be retrospectivity back to 1 October 2006. In regards to casuals, the following shall apply. At the end of the first three months of employment for a new casual, current casuals will remain on the rate that they are which would include any wage increase flowing from the agreement, but new casuals, at the end of the first three months their rate shall be reviewed.

PN37

The rate for new casuals shall be somewhere between the new EBA rate and either the award rate or the national standard rate, whichever is the greater. At the end of the first three months, they may receive a pay rise to take them to the equivalent of the EBA rate. However, new casuals at the end of the second three month period, taking it to a total of six months, will automatically move to the EBA rate if they have not already been made permanent employees.

PN38

The proposed vote on a non-union agreement to be held on 21 February 2007 shall not proceed on the basis that the parties have an in principle agreement. The company will provide for a half hour payment for the unions to report back to their members of the proposed agreement to be put to them. It is proposed that a formal vote occur no later than Wednesday, 28/2/2007. Following that vote, the agreement is accepted, the company will lodge the EBA with the Office of Employment Advocate and will provide DEWA with a copy of the agreement and the company will seek an opinion from DEWA and the Office of Employment Advocate as to whether the agreement is code compliant and enforceable.

PN39

If the OEA or DEWA are not prepared to issue an opinion based on the enforceability of the agreement and if that becomes an issue between the parties, they are free to come back to the Commission for further conference to see whether we can work through whatever that issue might be. The attendance of the shop stewards at today's conference shall be paid for by the company.

PN40

The issue of a break in any casual's employment period has been raised. The company have made it clear that it is not their intention to as an example have an employee who may do two months' casual work and then for whatever reason have a day or part of a day off to then have that period that they've served as non-service with the company. That's not the company's intention. I think that covers the issues.

PN41

There is the back pay issue, the arrangement with the casuals which has been addressed, the EBA, the submission of the EBA to Office of Employment Advocate or DEWA, the opportunity to discuss the EBA with members which is the half-hour paid meeting and then a formal vote on the 28th, the vote on the proposed non-union agreement will not proceed and the delegates to be paid for attendance today. They were the six issues. Now, it's the Commission's understanding that that forms the basis for an in principle agreement to be taken back for recommendation to the unions' members. Is that right, Mr Reidy?

PN42

MR REIDY: That's correct, Commissioner.

PN43

THE COMMISSIONER: Is that your understanding, Mr Saddington?

PN44

MR SADDINGTON: Yes.

PN45

THE COMMISSIONER: Both parties have acknowledged that's correct and, Mr Brown, is that your understanding as well?

PN46

MR BROWN: Yes, Commissioner.

PN47

THE COMMISSIONER: The company have acknowledged the same. The Commission thanks the parties for their co-operation. Thank you.

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