AG2009/24677, Transcript of Proceedings [2010] FWATrans 398 (16 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25046-1

SENIOR DEPUTY PRESIDENT WATSON

AG2009/24677

s.185 - Application for approval of a single-enterprise agreement

Application by Pioneer Earthcon Pty Ltd
(AG2009/24677)





Melbourne

2.36PM, FRIDAY, 26 FEBRUARY 2010

PN1

SENIOR DEPUTY PRESIDENT: Yes, now I have Mr Knowles, your representing Pioneer.

PN2

MR KNOWLES: Yes, your Honour.

PN3

SENIOR DEPUTY PRESIDENT: Yes. And Mr Fournaris, you're in Bendigo at the moment are you? Mr Fournaris, can you hear me?

PN4

MR FOURNARIS: I can, yes.

PN5

SENIOR DEPUTY PRESIDENT: You're in Bendigo.

PN6

MR FOURNARIS: Yes.

PN7

SENIOR DEPUTY PRESIDENT: Okay. All right, well look I thought I’d bring this matter on for hearing today rather than involve ourselves in another exchange of correspondence to see what the situation is with the agreement. Mr Knowles, is there anything you want to put initially?

PN8

MR FOURNARIS: It’s just braking up a bit then.

PN9

MR KNOWLES: Yes, your Honour. In part of our correspondence – and I think it’s partly in the wording is that this agreement is simply a casual for casual employment. Pioneer Earthcon is a small regional civil construction business. Lots of the time it’s one person and then from time to time Mick Fournaris is on the phone, hires people to help him in doing work that he picks up around the place. So – and I do accept that perhaps the wording wasn’t clear enough as to that. It did have – I think it’s in clause 17 – got that excavator running, Michael have you – in clause 17 it did refer to casual employment but at the – I mean the intent of the agreement is that it’s to cover casual employment.

PN10

Clause 17 talks about contract of employment and refers there casual labour. Now if it needs tightening up and I think it can be tightened up by way of undertaking. And I don’t think that alters the, as you point out in your letter, your Honour, that a written undertaking may be accepted only if they don’t result in a substantial change to the agreement. The intent of the agreement was that it was purely to cover casual employees. One of the major reasons why Mr Fournaris wanted an enterprise agreement was also that it was for compliance with the construction code. So that was the driving force behind it. He’s mostly worked previously just simply under the award. He wanted to get a code complaint agreement in place but he does just simply employ casual employees.

PN11

So in terms of the wording, it could have been tightened up. As you point out, whether the employer is prepared to provide an undertaking, which I’m sure he is, then I don’t think that that alters the intent of – it certainly doesn't alter the intent of the agreement and it doesn't change the substantive nature of the agreement. In relation to your question about- - -

PN12

SENIOR DEPUTY PRESIDENT: Before you go to that- - -

PN13

MR KNOWLES: And I must admit if I can just – sorry to interrupt you, your Honour – when I checked the form 17 I suppose I was honing in on dates as I understand the issue about dates. And I sort of skipped that part, I was making sure all these dates line up so that was- - -

PN14

SENIOR DEPUTY PRESIDENT: Could you hold on for one moment. Mr Fournaris? Mr Fournaris, there’s a lot of noise coming from your end and it’s making it extremely difficult for the transcript reporter.

PN15

MR FOURNARIS: Yes, okay, I’m just (indistinct) I should okay again.

PN16

SENIOR DEPUTY PRESIDENT: Okay, good, thank you very much. Okay. Can I just ask about that casual issue. It’s not stated explicitly that the agreement would apply to casuals. But you say that the clauses which- - -

PN17

MR KNOWLES: Well clause 17- - -

PN18

SENIOR DEPUTY PRESIDENT: - - -suggest such, clause 17 which deals with casual labour is the only form of contract of employment.

PN19

MR KNOWLES: Yes.

PN20

SENIOR DEPUTY PRESIDENT: Is there any other provisions?

PN21

MR KNOWLES: No, I – other than – no.

PN22

SENIOR DEPUTY PRESIDENT: Very well. But that’s the intent that it- - -

PN23

MR KNOWLES: Yes, your Honour.

PN24

SENIOR DEPUTY PRESIDENT: - - -would only operate in respect to employees engaged on a casual basis in accordance with clause 17 of the agreement.

PN25

MR KNOWLES: Yes, your Honour.

PN26

SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN27

MR KNOWLES: In relation to the two truck drivers, the classifications for truck driver grade 3 and water truck driver grade 4, clause – under the Transport Award there’s clauses 15 that relates to rates of pay. There’s a grade 3, driver of a two axle rigid vehicle or any other rigid vehicle exceeding 4.5 tonnes which would sit in under the – I should have brought a copy for you.

PN28

SENIOR DEPUTY PRESIDENT: That’s the award or the pay scale?

PN29

MR KNOWLES: Yes, that's the classification structure in the award. I’ve taken this from the modern award but I imagine – it’s the same classification as it was in the Transport Workers Award (1998).

PN30

SENIOR DEPUTY PRESIDENT: Yes. Sorry, which classification was- - -

PN31

MR KNOWLES: 3.

PN32

SENIOR DEPUTY PRESIDENT: So 3 equals what in the agreement – sorry, 3 in the award is it?

PN33

MR KNOWLES: Yes.

PN34

SENIOR DEPUTY PRESIDENT: Equals what in the agreement?

PN35

MR KNOWLES: It would be driver 3, driver grade 3.

PN36

SENIOR DEPUTY PRESIDENT: Driver grade- - -

PN37

MR KNOWLES: On your classification structure.

PN38

SENIOR DEPUTY PRESIDENT: Okay, yes.

PN39

MR KNOWLES: And driver grade 4 would be for under the award, driver of a three axle rigid vehicle exceeding 13.9 tonnes gross mass.

PN40

SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR KNOWLES: So that’s where I looked for those. The next point you raise clothing ad spectacles. I must admit it’s not one that I actually picked up, expected or – so I’m not – what I know and I can ask Michael for clarification, that I don’t think the employers civil construction work, so its earthmoving, excavation work, but I’m not sure that employees would be subject to those spoilt by acids or sulphur or other deleterious substances. I’m not sure and I need probably some clarification from Mick who owns the business. You hear that Mick?

PN42

MR FOURNARIS: Sorry, I caught part of that.

PN43

MR KNOWLES: The business – there’s clause that his Honour is referring to in the award that talks about an employee whose clothes, spectacles or hearing aids have accidentally been spoilt by acid, sulphur or other deleterious substances. You wouldn't deal in – would you deal in any of those or you just excavation work and earthmoving and things like that?

PN44

MR FOURNARIS: (indistinct).

PN45

SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR KNOWLES: Okay.

PN47

SENIOR DEPUTY PRESIDENT: If you could do that, that might assist, Mr Fournaris.

PN48

MR FOURNARIS: I’ll just see if I can hear you a bit better now.

PN49

MR KNOWLES: I hope you're not on one of those back roads. Just referring, Mick, to the work done by your employee, you and your employees, mostly excavation work but would it involve matters like acids or sulphur or other substances like that?

PN50

MR FOURNARIS: No, no, nothing like that, no. No, just straight – yes, just (indistinct) work.

PN51

MR KNOWLES: Okay, thank you. The next point you raised that clause 23.11 requires employees to either purchase or supply protective clothing. The clause your Honour says that the – that’s clause 23.11.1: ‘The employer shall reimburse the employee the cost of purchasing any waterproof clothing’. And 23 – it goes on again: ‘The employer shall reimburse’. I don’t see that there is a requirement for that to be provided in those cases. I know that the provisions in the agreement talks about where the employer provides or has to provide certain safety gear.

PN52

SENIOR DEPUTY PRESIDENT: Well my understanding of the award clause was that it provided for reimbursement but that requirement did not apply if the employer had supplied the- - -

PN53

MR KNOWLES: That's right.

PN54

SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR KNOWLES: That's right. And so I suppose- - -

PN56

SENIOR DEPUTY PRESIDENT: And what’s the effect of clause 10 of the agreement?

PN57

MR KNOWLES: That when the company provides uniform protective clothing employees must comply with the policies of the company and when they leave – so it’s a case of when the company provides uniform – can I ask you, Mike, what do you provide to the employees when they come to work for you?

PN58

MR FOURNARIS: Look, we do provide, you know, gloves, hearing protection, hard hats, yes, things like that. I mean we don’t generally work out in the rain so it’s not really sort of where we would, you know, sort of need to do that. Yes, hats or hard hats. You’ve got the (indistinct) for the hats if they're out in the sun, you know and we do buy drinks and stuff like that if they happen to be working out in, you know, in the sun working.

PN59

MR KNOWLES: Provide high vis vests and things like that.

PN60

MR FOURNARIS: Sorry?

PN61

MR KNOWLES: Do you provide high vis, high visibility?

PN62

MR FOURNARIS: No, not high vis, no. No. That side it’s basically the clothing industry I suppose. I mean there’d be sort of like something, you know, we’ve got to wear high vis underwear, you know what I mean. It’s just part of your clothing now. It’s just all anybody wears in that industry.

PN63

MR KNOWLES: Okay.

PN64

SENIOR DEPUTY PRESIDENT: Well I think it’s protective clothing. I suppose it’s protective in one sense but probably not in the sense of hard hats and steel boots and the like. It’s more health and safety driven I think.

PN65

MR KNOWLES: Yes.

PN66

SENIOR DEPUTY PRESIDENT: So the position there you say is that the company provides protective clothing in which case there wouldn't under the award be any obligation to reimburse?

PN67

MR KNOWLES: Yes. The clause 5 that your Honour talks about unusually dirty work. I think that’s covered in, certainly the industry allowance and the award provides for dirty conditions or that’s – and that’s built into the rates that – it’s incorporated into the rate that we’re dealing with. And I’m not sure unusually dirty work, this is general sort of civil construction so there is, I mean there’s dust around, there’s dirt. But I don’t think it would be – I don’t think there would be unusually dirty work. I think the industry allows for physical (indistinct) dust blowing in the wind on a construction, sloppy or muddy conditions. We don’t get many of those these days unfortunately but sloppy or muddy conditions, dirty conditions caused by the use of (indistinct) oil or green timber.

PN68

So I think that sort of – it’s – Mick, I don’t think – do you have – do you do really dirty work or is it generally just general sort of civil construction? There’s no excessive dirty work?

PN69

MR FOURNARIS: No, no, it’s all, yes, basically machine work or you know, yes, like you say, there’s civil construction work. So there’s no – we don’t sort of play around in, you know, sewers or anything like that, no.

PN70

MR KNOWLES: Okay. And do you do any – we talked about this, you don’t do any hot bitumen work?

PN71

MR FOURNARIS: No, mate, no. No, that’s all subcontracted out if we do that.

PN72

SENIOR DEPUTY PRESIDENT: Very specialised work I guess.

PN73

MR KNOWLES: Well asphalt companies do.

PN74

MR FOURNARIS: (indistinct) do any of that sort of stuff.

PN75

MR KNOWLES: Yes. I have to throw myself on my sword on the next point, your Honour. I did mention it, you didn’t put it in.

PN76

SENIOR DEPUTY PRESIDENT: The accident pay.

PN77

MR KNOWLES: Yes. So someone can whip me for that one, I’m happy to accept that.

PN78

SENIOR DEPUTY PRESIDENT: But you can provide that on behalf of Mr Fournaris?

PN79

MR KNOWLES: Certainly. Certainly, your Honour.

PN80

SENIOR DEPUTY PRESIDENT: Yes.

PN81

MR KNOWLES: And your final question does the cumulative effect of the undertaking proposed result in substantial changes. I would say no, given that the intent of the agreement was always only to cover casual employees.

PN82

SENIOR DEPUTY PRESIDENT: The major issue is the casual issue isn't it?

PN83

MR KNOWLES: Yes, yes, your Honour. And if that can be dealt with by a way of an undertaking well then we can certainly provide that.

SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that.

PN84

MR KNOWLES: Thank you, your Honour.

PN85

SENIOR DEPUTY PRESIDENT: Sorry, before you sit down. The undertakings that you’ve already provided are – would be to amend clauses 19, 23 and the Saturday, Sundays clause. Does that have a number or it’s part of- - -

PN86

MR KNOWLES: We put that in under clause, hours of work.

PN87

SENIOR DEPUTY PRESIDENT: Under 23. So it continues on, yes, DH, yes.

PN88

MR KNOWLES: Yes.

PN89

SENIOR DEPUTY PRESIDENT: Okay. All right. And the effect of that is you’ve modified it to include daily travel.

PN90

MR KNOWLES: Yes.

PN91

SENIOR DEPUTY PRESIDENT: You’ve modified the hours to provide for relevant breaks – sorry, no, the meeting of a cost of a meal where the employee works overtime which would warrant a provision of a meal under the award. And the effect of the Saturday, Sunday, public holiday passes to provide the minimum payment, is that correct?

PN92

MR KNOWLES: Yes, your Honour.

PN93

SENIOR DEPUTY PRESIDENT: Yes. And is that all it does or is anything else done by that? (indistinct).

PN94

MR KNOWLES: Yes, I – no, I was trying to address all the issues that you raised. They're the issues in terms of Saturday work a minimum of three hours all work after 12 o'clock to be at double time. Sunday work all to be at double time with four hours minimum. And then public holidays, so I think we tried to encapsulate that.

PN95

SENIOR DEPUTY PRESIDENT: Yes.

PN96

MR KNOWLES: If I can do anymore to help I will.

PN97

SENIOR DEPUTY PRESIDENT: Yes, I’m just wondering in the context of casual work whether it’s not strictly necessary.

PN98

MR KNOWLES: Well usually- - -

PN99

SENIOR DEPUTY PRESIDENT: The agreement itself already provides for double time on – double time and a half on public holiday, double time on a Sunday, two hours one and a half on a Saturday then double time. It doesn't deal with the afternoon. If it was only- - -

PN100

MR KNOWLES: No, that’s right.

PN101

SENIOR DEPUTY PRESIDENT: Yes, very well, well I think it would require modification. Because on reflection the minimum issue is dealt with in clause 17. In any case – on any occasion the employee is engaged as a minimum of four hours.

PN102

MR KNOWLES: Yes.

PN103

SENIOR DEPUTY PRESIDENT: (indistinct).

PN104

MR KNOWLES: Won’t have a problem at this stage.

PN105

SENIOR DEPUTY PRESIDENT: Yes, but I don’t think there’s any harm in leaving it in that form.

PN106

MR KNOWLES: Yes.

PN107

SENIOR DEPUTY PRESIDENT: Okay, well thank you for that, Mr Knowles. I’m in a position where that clarification having been provided I am satisfied as to the no disadvantage matter. As indicated in the earlier correspondence, I think the agreement applied to employees other than casuals would result in disadvantage to them. Having regard to things such as redundancy, notice, (indistinct), weather, jury service and the like, they're not matters that go to casuals, so I’d be prepared to approve the agreement subject to the written undertakings already provided on the provision of a relevant undertaking in respect to accident pay and an undertaking to the effect that the agreement will only operate in respect to casual labour engaged under clause 17 of the agreement.

PN108

In respect to that I am satisfied that it doesn't change the substance of the agreement. I accept what you put, Mr Knowles as to the intent. I think whilst the intent is not explicit I don’t think it can be inferred at clause 17. And inferred from clause 24 which again refers only to casual employees. Some confusion was raised by the inclusion of the non casual rates in the agreement. But are subject to that further undertaking I will approve the agreement subject to those undertakings.

PN109

So it will be a matter, Mr Fournaris, of Mr Knowles settling the terms of the undertakings with you and then those being provided and they’ll be included in the decision approving the agreement.

PN110

MR KNOWLES: Thank you, your Honour.

PN111

SENIOR DEPUTY PRESIDENT: So thank you, Mr Fournaris, you can get back on the road now.

PN112

MR FOURNARIS: (indistinct) for that.

PN113

SENIOR DEPUTY PRESIDENT: Do you need to speak to Mr Knowles in my absence at all?

PN114

MR FOURNARIS: No, (indistinct) we’ll talk a bit later on.

PN115

SENIOR DEPUTY PRESIDENT: Okay.

PN116

MR FOURNARIS: (indistinct).

PN117

SENIOR DEPUTY PRESIDENT: All right, fine. Well thank you, Mr Fournaris. I’ll now adjourn.

<ADJOURNED INDEFINITELY [2.57PM]