AG2010/2363, Transcript of Proceedings [2010] FWATrans 1475 (27 September 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 27843-1

SENIOR DEPUTY PRESIDENT RICHARDS

AG2010/2363

s.185 - Application for approval of a greenfields agreement

Application by Ostwald Bros Civil Pty Ltd
(AG2010/2363)





Brisbane

2.05PM, THURSDAY, 16 SEPTEMBER 2010

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE FOR MR McQUEEN AND RECORDED IN BRISBANE

PN1

THE SENIOR DEPUTY PRESIDENT: Thanks, everyone. Please take a seat. Perhaps I will start the beginning. I have an application under section 185 for purposes of approval of a greenfields agreement. The employer party is Ostwald Bros Civil Pty Ltd and the relevant employee organisation is the CFMEU. Certain matters have arisen in relation to a questioning of the approval process in relation to this greenfields agreement and I have brought the matter on for discussion of those purposes, but before proceeding I will take appearances, thanks. First of all, I suppose I will take the appearance for the employer representative.

PN2

MR G. POWER: May it please the commission, Greg Power appearing for and on behalf of Ostwald Bros Civil Pty Ltd. With me is Joanne Webster and we're both from Draytons Workplace Consulting Pty Ltd.

PN3

THE SENIOR DEPUTY PRESIDENT: Good, thank you, Mr Power. The relevant employee organisation for the agreement that is before me - and I should specify that and I will refer to at all points following as the CFMEU agreement - is the CFMEU and perhaps I could take the appearance for the CFMEU.

PN4

MR J. McQUEEN: Yes, your Honour, McQueen, initial J, from the CFMEU.

PN5

THE SENIOR DEPUTY PRESIDENT: Good, thank you, Mr McQueen. The AWU seeks leave to appear in this matter. Perhaps I could take appearance in that regard.

PN6

MR D. BROANDA: Thank you, your Honour. Broanda, initial D, for the Australian Workers' Union. With me, your Honour, I have Mr Troy Spence, an official of the AWU.

PN7

THE SENIOR DEPUTY PRESIDENT: Good, thank you, Mr Broanda. Is there any contest as to Mr Broanda's capacity to seek leave to appear from any of the parties?

PN8

MR POWER: No, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: None.

PN10

MR McQUEEN: No, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: So leave is granted. Sorry, Mr McQueen?

PN12

MR McQUEEN: No, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Good, thanks, Mr McQueen. So leave is granted. Look, I think we will just come to the nub of the matter. As the parties know, what has transpired is that I have the agreement that I have identified as the CFMEU agreement before me. The AWU has written to me and brought it to my attention. I wouldn't otherwise have known unless I'd carried out a search of the agreement database, I suppose, that there has been another greenfields agreement made by the same employer.

PN14

This is an agreement that was approved by Commissioner Spencer on 28 July 2010. It's 2010 FWAA5584. Its title is "The Ostwald Bros Civil Pty Ltd Curragh - CHPP Expansion Project Construction Agreement 2010-2012" and I will refer to that in the abbreviated form as the AWU agreement for all purposes that follow. The AWU has written to me and sought leave to appear for purposes of contending that, I presume, Mr Broanda, that I should not approve the agreement because of the circumstances. Perhaps you could let me know what your principal submission is in that regard, thank you.

PN15

MR BROANDA: Thank you, your Honour. There are three primary submissions, if you like. The first is that the ability of the CFMEU under section 187(5) to cover a majority of the employees affected. Your Honour, I have a copy of the rules of the CFMEU that I could refer to in some detail. Perhaps if I at the outset hand your Honour a copy.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN17

MR BROANDA: Your Honour, did you want me to go into detail now or did you merely want me to outline the heads of argument, if you like.

PN18

THE SENIOR DEPUTY PRESIDENT: Perhaps if we could start at the broad level first, then we will come back around and we will drill into it a bit later.

PN19

MR BROANDA: Certainly, your Honour. The first of our arguments in opposition of the agreement is that the CFMEU is ineligible to cover a majority of the employees who will be covered by the agreement if approved. That's an issue, your Honour, in relation to section 187 subsection (5)(a).

PN20

THE SENIOR DEPUTY PRESIDENT: Just in particular for Mr McQueen who is not perhaps looking at all the same documents necessarily, your argument is so far that there are various preconditions to the approval of the greenfields agreement. One of those requirements or preconditions is that the relevant employee organisation as defined at section 12 of the act - that relevant employee organisation be capable of covering a majority of the employees who are to be covered in turn by the agreement.

PN21

MR BROANDA: Correct, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Your contention is that the CFMEU is not capable of meeting that precondition.

PN23

MR BROANDA: Correct, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Okay.

PN25

MR BROANDA: The second argument, your Honour, goes to the operation of section 187 subsection (5)(b) of the act and that's in general terms the public interest issue. Without going into too much depth at this stage, your Honour, that issue arises out of a cross application of section 58 of the act. Section 58 in brief terms, your Honour, outlines that only one agreement can operate at any given point in time. The terms of the two agreements, the AWU agreement and the CFMEU agreement, are such that the CFMEU agreement can never apply.

PN26

The nominal expiry dates are identical. The terms of coverage, the scope of the two agreements, are identical. The AWU agreement was the first time, there the CFMEU document can never have any work to do. There's then an issue about whether or not it's in the public interest for the disputation, the confusion, the mischief which may follow from the approving of an agreement which by law can never operate. That's the second head of argument and that goes, as I say, to the public interest requirement at section 186(5)(b) so section 185 subsection (5)(b).

PN27

Your Honour, the third head of objection, if you like, is whether or not this document is in truth - if it meets the requirements of being a greenfields agreement itself. Your Honour, there are a couple of section references, notably section 172(b) and section 182 subsection (3). Your Honour, the evidence which Mr Spence is able to provide is that the understanding of the AWU is that the employer already employs employees on this project and it would seem that employees were employed before the making of this CFMEU agreement, in which case, your Honour, I have some more comprehensive submissions but, in short, the agreement is not capable of being a greenfields agreement. Your Honour, they are the three broad heads of objection which the AWU would press.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Can I just go back to your last point to that first? The CFMEU agreement was signed, that is, it was made - I will come to that issue itself shortly, I guess, but it was made on 19 August 2010.

PN29

MR BROANDA: Yes, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Your argument is at that time, that is, at the time that agreement was made, the employer already employed employees and they were performing duties under the AWU agreement.

PN31

MR BROANDA: Correct, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: So far as they're the same employees, that's your argument. It cannot be taken to be a greenfields agreement because - well, it could only have been a single enterprise agreement but not a greenfields agreement.

PN33

MR BROANDA: Correct, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: That is the argument. I should say I will just clear up one thing at the moment before it comes up and it distracts us at all. I notice that the answer to question 2.1 in form F20 by the employer in relation to the application stated that the agreement was made on 27 May 2010. Now, I take that to be incorrect. When I look at the CFMEU agreement, the employer signed it on 23 July 2010 and the CFMEU signed it on 19 August 2010 and I take therefore that it is for all purposes that the agreement was made on 19 August 2010 when the CFMEU signed that agreement. Am I right, and I'll put aside the employer's statement that it in the response in the form F20 at question 2.1 that it was 27 May 2010? Is that right, Mr Power?

PN35

MR POWER: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: So the F20 is just incorrect. Is that right? I just have to get you to say yes.

PN37

MR POWER: Yes, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Good, thank you, because things turn on that as well because of the 14-day rule so I need to make sure that that's indeed the case. I take the signing and the dating of the signatures in the agreement to me as prima facie evidence of when the agreement was made and I shouldn't rely on the date of 27 May. If it had been 27 May, of course, you would have failed for reasons of the operation of the 14-day rule for which there's no capacity to provide any extensions. It's a fatal flaw. Now, that said, we'll put that matter aside. We have determined the dates on which the agreement was made. Those dates - they're spared from the concern I just raised. They nonetheless fall foul of what is Mr Broanda's claim that there was not a genuine greenfields agreement - sorry, this cannot be a genuine greenfields agreement for the reason as explained that the employee at the time the agreement was made employed employees under that.

PN39

MR BROANDA: Correct, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN41

MR BROANDA: Your Honour, can I indicate as well your Honour reminds me of another issue which I intended to raise and I guess it depends on the view of the employee and the CFMEU in light of those heads of argument which we intend to canvass. If there's going to be a significant contest to the approval of the agreement this afternoon or, your Honour, in our terms we say the inability to approve the agreement, the AWU sought through the registry a copy of the material which was filed this morning. Now, I understand there may have been some concern about whether or not that material could be released until the issue of the AWU standing was determined.

PN42

Can I indicate for your Honour that if we're going to have a detailed argument this afternoon, the AWU would seek leave of the tribunal to have a short adjournment so that the AWU could be provided with the material which was filed in support of the application prior to pressing detailed argument about the pros and cons of the approval of the agreement?

PN43

THE SENIOR DEPUTY PRESIDENT: I think there are a number of issues that emerge. I have brought this matter on reasonably quickly, but the greatest difficulty for the parties, as I understand it now, is that it's only now we're getting a sense of what the parameters of the contest are going to be and I don't know to what extent parties are prepared or capable of drilling into this material and putting their positions on the fly, as it were, or whether they need more time to do that. If there was more time, I, of course, would allow Mr Broanda access to those documents. I don't think there's anything particularly controversial in them, to my mind.

PN44

MR BROANDA: Your Honour, I guess that's probably part of the issue, that the parameters of the contest may expand or contract based on what is said and sworn to in those documents.

PN45

THE SENIOR DEPUTY PRESIDENT: Okay. I probably should hear from Mr McQueen and Mr Power in relation to the broad level which we're talking at the moment, how they want to deal with this and whether they're defending the agreement at all levels as currently known or whether they will seek more time to look at this matter. Mr Power?

PN46

MR POWER: In broad terms the position of the company is this: yes, they did enter into an agreement with the Australian Workers' Union to cover their proposed contract with the principal up there which was to carry out civil and surface works. Subsequent to making that agreement the company was approached by the CFMEU to make an agreement with them. The company indicated that it had already made an agreement to cover civil works. The request from the CFMEU was to cover structural works and to the understanding of the company that meant future building works distinguishable from civil and surface works. In that regard there have been no building works commenced up there. There has been no contract granted to the company. They merely made an agreement with that union in relation to potential future building works. It is not the intention of the company to have competing agreements for the current works.

PN47

THE SENIOR DEPUTY PRESIDENT: Mr McQueen, do you have a view you want to put forward at this point?

PN48

MR McQUEEN: Yes, your Honour. It's along the same lines as Mr Power. We negotiated obviously a greenfields agreement, we thought, for that project in relation to the building and construction work at that project which hadn't started on the project. At that stage no-one was engaged in that. We believe in regard to the building and the construction - you know, with the classifications contained in it in regards to the form workers and carpenters and crane crews we did have coverage and we did have a right to do a greenfields agreement with the company around that scope.

PN49

THE SENIOR DEPUTY PRESIDENT: Is there a new business now that's doing that work? See, this goes to the definition of a genuine greenfields agreement, I suspect. The act defines at least - it provide some guidance in the notation that a genuine greenfields agreement relates to a new business so presumably the new business is one that by definition exists or is in the process of coming into existence, such that it exists, not one that might exist in the future. Is that an issue anyone wants to raise anything about at this stage?

PN50

MR BROANDA: Your Honour, only to say that our understanding, that is, the AWU's understanding, is that there is no new business of the kind envisaged. I would note just briefly in response to the submissions of the company and the CFMEU that the AWU agreement is expressed to cover construction work. There's no confinement to civil or ground works or any other thing of that nature. It's all construction work within the scope of the project.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, your scope clause refers to - I will just have a look at that for a second.

PN52

MR BROANDA: Your Honour, the attachment to Mr Spence's statement TS1 at page 5 of that document, paragraph 3(a).

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, it's just the generic expression "construction work".

PN54

MR BROANDA: Yes, there's no confinement or exclusion of, I guess, the structural construction which is the term used in the CFMEU document. The AWU document purports to cover all construction work engaged in by this company on this project.

PN55

THE SENIOR DEPUTY PRESIDENT: There are a number of other matters that you have raised - sorry. Where do parties stand with this? Are you in a position to deal with this matter in detail now or do you seek time to prepare your argument in these matters? I can hear this matter fully today if you wish to exhaust it or else I can afford you some measure of natural justice and, having heard the general thrust of the arguments in opposition to approving the agreement, give you some time to consider your positions. What do parties wish to do? I'm really in your hands.

PN56

MR McQUEEN: The CFMEU would like to seek some leave to get some advice and some legal representation, I think, your Honour, in regards to this.

PN57

THE SENIOR DEPUTY PRESIDENT: Can I just ask you, Mr Broanda: you may have other arguments as well. You haven't exhausted your - - -

PN58

MR BROANDA: Your Honour, that is possible. That is subject, as I say, to the material which was filed along with this agreement when it was filed for approval so form 17 and whatever other forms that might have been filed in support of the agreement. Your Honour, I might add that the parties have been on notice for some time that this was listed for hearing today in terms of a request for an adjournment. I accept and I understand where your Honour's coming from in terms of wanting to give parties a degree of natural justice. Your Honour, I would suggest if there's to be an adjournment, it be of a short nature, perhaps of a 20-minute to 30-minute nature. The parties were aware that this was to proceed. This matter was listed for hearing this afternoon.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, I think it was listed a week ago - sorry, it was listed two days ago, as I understand it. I just make the point that it was listed only some short time ago and the issues and contests are only just emerging in detail at least. Mr Power, do you have anything to say?

PN60

MR POWER: We wouldn't be putting any further submissions than what I have already put, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: How long do you think you will need, Mr McQueen, to consider these matters and to be able to address them in detail?

PN62

MR McQUEEN: I think we would need at least 24 hours, your Honour, with the stuff that the AWU has put on the table this afternoon. Obviously we haven't been made aware of that until now and obviously I wasn't involved in the negotiations of the agreement so I need to seek advice from those people involved and obviously to find out where we're going to head from there.

PN63

THE SENIOR DEPUTY PRESIDENT: I have an opportunity to hear this matter at midday next Tuesday which is the 21st, I think. So I can hear this matter next Tuesday, midday, 21 September. Does that timing cause anyone any problems?

PN64

MR BROANDA: Your Honour, I'm just instructed that Mr Spence who will be our primary witness in relation to the matter will be out of town on Tuesday.

PN65

THE SENIOR DEPUTY PRESIDENT: Is he back on Wednesday?

PN66

MR BROANDA: Yes, he will be.

PN67

THE SENIOR DEPUTY PRESIDENT: I have a spot on Wednesday the 22nd at midday.

PN68

MR McQUEEN: Yes, that's fine with the CFMEU, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: That fits with the CFMEU. Mr Power, I know you don't want to make any submissions, but will you be in attendance at that time?

PN70

MR POWER: Yes.

PN71

THE SENIOR DEPUTY PRESIDENT: Are you able to meet that date?

PN72

MR POWER: On 22 September, yes.

PN73

THE SENIOR DEPUTY PRESIDENT: Wednesday, midday, the 22nd.

PN74

MR POWER: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: Okay; and the AWU can accommodate that date as well. I'm in your hands as to how you want to proceed. I'm just loath in these sorts of matters to generate unnecessary costs for you. Do you want to exchange between yourselves, say, by close of business on Monday the 20th an outline of submissions or do you want to simply now that you know enough deal with the matter in toto on the Wednesday? What would be your preferences?

PN76

MR BROANDA: Your Honour, I would be comfortable just to proceed with the matter on the Wednesday. Can I indicate though just so that there's no complaint later on that subject to what those documents say, the documents which I seek which were filed, the AWU may put on further material next Wednesday?

PN77

THE SENIOR DEPUTY PRESIDENT: You may expand.

PN78

MR BROANDA: But having said that, we would be comfortable with dealing with everything on the day.

PN79

THE SENIOR DEPUTY PRESIDENT: Are you comfortable with that approach, Mr McQueen, of just dealing with everything on the day? We know what the three main lines of argument are.

PN80

MR McQUEEN: Yes, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: There might be potentially some other argument. Would you prefer to do it that way?

PN82

MR McQUEEN: Yes, that's fine, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: So we won't go through any paper process, as I were. We will just all front up on the day and deal with it as the argument emerges, but I think we have sort of got a good sense of what the key issues are that we are going to have to deal with. If it's of any help, I will have the recording of this matter transcribed as promptly as I can and distribute that to the parties.

PN84

MR BROANDA: Thank you, your Honour. I just wonder in order to protect everyone involved if your Honour might - perhaps what's appropriate if your Honour might issue an order for the release of the documents or otherwise authorise your associate or the registry staff to release those documents.

PN85

THE SENIOR DEPUTY PRESIDENT: These are the forms for the purposes of the application. Mr Power or Mr McQueen, do you have any objection to the AWU examining those documents?

PN86

MR POWER: No.

PN87

THE SENIOR DEPUTY PRESIDENT: Mr Power doesn't. Mr McQueen, are you troubled by that at all?

PN88

MR McQUEEN: I will object to it, your Honour. I will have to seek advice on that.

PN89

THE SENIOR DEPUTY PRESIDENT: When could you let me know what your view is in that regard then? Could you let me know on that preliminary issue by around midday tomorrow?

PN90

MR McQUEEN: That's fine, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: That will then give me an ability to respond to that issue and consider what you're going to put to me and give Mr Broanda some time to have access to them if that's indeed the case that follows.

PN92

MR McQUEEN: Yes, that's fine, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: The employer's form is a separate matter.

PN94

MR BROANDA: Your Honour, I'm a little bit perplexed by the position taken. The reality is that these documents once filed become public documents. They're documents in the public arena.

PN95

THE SENIOR DEPUTY PRESIDENT: I have a feeling that Mr McQueen and I have a common concern. Mr McQueen, you're just managing your risks as best you can at the moment, aren't you, I suspect?

PN96

MR McQUEEN: That is correct, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: You may or may not have an objection that's able to be substantiated. I think all I want to do is give Mr McQueen an opportunity just to consider that issue. If there is something unusual, if there's something document appended that wouldn't normally be appended, some development that's not contemplated in the ordinary circumstances, I think I will give Mr McQueen an opportunity to raise that with me. I will give him that opportunity to do that by midday tomorrow. If there's no substantive objection that turns my eye to something I haven't anticipated, I fully expect that I will give the AWU access to these documents from midday tomorrow, but I do want to give the CFMEU an opportunity to look at the situation before I make that decision. There is no limitation in relation to the employer's declaration, I presume, that is, the employer's F20.

PN98

MR POWER: No, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: So access can be had to that in a substantive sense.

PN100

MR BROANDA: Your Honour, we're just as comfortable to wait for the lot to come as a bundle. If for some reason the CFMEU material is not available or not able to be provided, then we're comfortable to wait until midday tomorrow for the employer's material. To be brutally honest, your Honour, I wouldn't be looking at it before tomorrow afternoon in event so we would rather wait and receive everything as a complete bundle.

PN101

THE SENIOR DEPUTY PRESIDENT: In fact it's CFMEU forms F21 and F22. They're the only two. There's only F21 and 22's that come in.

PN102

MR BROANDA: Your Honour, I understand there should be an application and then the employer's declaration and then the union declaration at a minimum.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, the F19 though is made by the employer and signed by Mr Harrison. So the application is by the employer.

PN104

MR BROANDA: Yes, your Honour.

PN105

THE SENIOR DEPUTY PRESIDENT: The F20 is the employer's declaration in support of the application so those two aren't in dispute as employer documents in essence. The only other two documents are the F21 and F22's which, as you will know in greenfields matters, are very narrow and very limited in terms of the information that they convey.

PN106

MR BROANDA: Yes, your Honour. As I say, I'm in your Honour's hands.

PN107

THE SENIOR DEPUTY PRESIDENT: As I say, we will leave it until midday tomorrow. I just want to give Mr McQueen an opportunity to make sure he checks with is principals as to anything that's unusual that he may not be aware of and I will give him an opportunity to convey that to me if there is something that's unusual. Other that that, as I said before, unless something like that comes up that distracts me and causes me to look at it, I will make the documents available at midday tomorrow. Are there any other questions from anyone at all?

PN108

MR McQUEEN: No, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Mr Broanda, is that a question on - - -

PN110

MR BROANDA: No, nothing further, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: Good, thanks very much. We're adjourned.

<ADJOURNED UNTIL WEDNESDAY, 22 SEPTEMBER 2010 [2.35PM]