AG2011/12452, Transcript of Proceedings [2011] FWATrans 1333 (23 November 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 64918-1

COMMISSIONER RYAN

AG2011/12452

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

Application by Apex Commercial Buildings Solutions
(AG2011/12452)





Melbourne

2.11PM, WEDNESDAY, 16 NOVEMBER 2011

Continued from 31/10/11

PN12

THE COMMISSIONER: I note that there is no appearance by the applicant in this matter. Mr Wainwright for the CFMEU, seeking permission to be heard in relation to the matter?

PN13

MR WAINWRIGHT: If it pleases the Tribunal, I am.

PN14

THE COMMISSIONER: Your assistance would be greatly appreciated on this occasion Mr Wainwright.

PN15

MR WAINWRIGHT: Thank you Commissioner.

PN16

THE COMMISSIONER: Just prior to the formal commencement of the proceedings, as a result of conversations between my associate and your self I became aware that Apex has filed a new application for an enterprise agreement. We've located in the Victorian service team that application. I haven't sighted it yet. It hasn't actually been processed through our system given that we've had
a - - -

PN17

MR WAINWRIGHT: Outbreak of medieval technology over the last three days.

PN18

THE COMMISSIONER: That's right. Yes.

PN19

MR WAINWRIGHT: Yes.

PN20

THE COMMISSIONER: Our entire computer system died on the weekend and is still in a state of being resurrected. Greater than three days, but resurrection still works.

PN21

MR WAINWRIGHT: I look forward to the public holidays, Commissioner.

PN22

THE COMMISSIONER: Yes. My associate is going to see if we can physically locate that file.

PN23

MR WAINWRIGHT: Yes.

PN24

THE COMMISSIONER: If I can access that from the registry I'll at least be able to get an idea of whether it's a genuine replacement file for the current matter or not.

PN25

MR WAINWRIGHT: Yes.

PN26

THE COMMISSIONER: If it's a genuine replacement matter what do you say I should do with the current application?

PN27

MR WAINWRIGHT: Yes, well I can inform you a little bit about it, Commissioner. I think the confusion at the CFMEU has arisen because we saw the listing, we connected it to an application that we had made which is the application that you've been discussing, and we had thought that that was the matter that had been called on for listing. We were unaware that the company seems to have made an earlier application and seemingly tried its best to fill in the forms of the Tribunal, including filling out the F18 and lodging an agreement that wasn't signed by the CFMEU.

PN28

So the circumstances as we see it, Commissioner, are that Apex Commercial Buildings Solutions Pty Ltd has entered into a certified agreement with the CFMEU. It was signed by both parties on 14 November. My instructions are that it was lodged with the Tribunal on the 15th and for clarity, Commissioner, we seek to enter into this agreement with the company, and the company has identified itself with the ABN of 50 150 791 647.

PN29

THE COMMISSIONER: Well that's exactly the same as the ABN number that was used to identify Apex Commercial Buildings Solutions in the application filed on 27 September by Mr Leon Suzuki.

PN30

MR WAINWRIGHT: Yes. In those circumstances, Commissioner, my submission would be that there is no application before you. The company has lodged some paperwork with the Tribunal. The agreement hasn't been signed by the CFMEU. It's purported to be an agreement with the CFMEU but we have not signed or lodged an F18. We say that in circumstances where you can be secure that a second, and in my submission proper, application has been made and will work its way through the processes of the Tribunal, you can be confident in striking out this purported application before you, and allow the second CFMEU application to proceed. It will, in my submission, deliver improvement on wages and conditions for the employees of the identified company.

PN31

THE COMMISSIONER: Yes. There are other errors in the current application.

PN32

MR WAINWRIGHT: Yes.

PN33

THE COMMISSIONER: These are matters which were made known to Mr Suzuki on the basis that I've had a previous hearing on this matter.

PN34

MR WAINWRIGHT: Yes.

PN35

THE COMMISSIONER: No attendance was made by the employer, but on the previous occasion I identified what I thought were the critical errors.

PN36

MR WAINWRIGHT: Yes.

PN37

THE COMMISSIONER: The only purpose of today's hearing was that as a result of the hearing in the last matter, once Mr Suzuki received the transcript he asked for the matter to be relisted. I had indicated on the transcript that if he asked for that I would do it. So I put the matter on today at his request.

PN38

MR WAINWRIGHT: Yes.

PN39

THE COMMISSIONER: The fact that he hasn't come is a reasonably clear indication that he is not pressing this application. I intend to dismiss the application in any event. I'm not certain whether I'm permitted to dismiss it for want of prosecution, or whether I am obliged to dismiss it on the basis that the critical defect is that 21 days was not given between the date nominated as the last day upon which notice of employee representational rights was issued to employees and the commencement of the voting process. That's if a notice of employee representational rights was given, because the form F17 noted that no notice of employee representational rights had actually been issued. I'm certainly satisfied that there's enough irregularity with the application that I will dismiss it.

PN40

MR WAINWRIGHT: Commissioner, I would point you to your powers under section 600 to make decisions in the absence of a party.

PN41

THE COMMISSIONER: On this occasion where Mr Suzuki was offered the opportunity of a further hearing, asked for the opportunity of a further hearing, a further hearing was set and he was notified of the further hearing, his non-attendance speaks volumes. I have no doubt that procedural fairness has been accorded to Mr Suzuki in all respects in relation to this matter. I've got the material that you've filed. It's certainly better than the material that was filed in the first matter.

PN42

MR WAINWRIGHT: We're grateful, Commissioner. Is that under the letterhead of 14 November?

PN43

THE COMMISSIONER: Yes.

PN44

MR WAINWRIGHT: Yes.

PN45

THE COMMISSIONER: And a covering email was sent on 15 November at 9.53 am.

PN46

MR WAINWRIGHT: Yes.

PN47

THE COMMISSIONER: I'm not going to deal with that matter today simply because as the matter hasn't been listed, and in fact I don't even have the - - -

PN48

MR WAINWRIGHT: C number.

PN49

THE COMMISSIONER: The AG number being allocated to it yet. But what I intend to do is that I will communicate with the panel head, Senior Deputy President Watson, and ask that the CFMEU's application filed on 15 November be allocated to me. I will deal with that expeditiously. I would suspect that unless there are any major concerns I will deal with that on the papers, as I would deal with most agreement matters on the papers.

PN50

MR WAINWRIGHT: Yes.

PN51

THE COMMISSIONER: Is there anything else you wish to say?

PN52

MR WAINWRIGHT: We support that course of action, Commissioner.

PN53

THE COMMISSIONER: Yes. That stops you from having to come back.

PN54

MR WAINWRIGHT: We're not the main show in town here today apparently. I'm outnumbered.

PN55

THE COMMISSIONER: I don't know why. Yes. Thank you Mr Wainwright.

PN56

I intend to formally dismiss the application in AG2011/12452. Mr Suzuki, the manager of Apex Commercial Buildings Solutions, who is the applicant in this matter, was advised of the proceedings today. That occurred by notice of listing that was sent to him on 10 November. The matter was listed today as a direct result of proceedings on 31 October in which the matter had previously been listed, and at which there was no appearance on behalf of the applicant. At that hearing the words I used were, "I intend to give the applicant seven days from today's date in which to advise the Tribunal as to whether or not it seeks to proceed with the application".

PN57

A copy of the transcript of the proceedings on 31 October was sent to Mr Suzuki. On receipt of that transcript Mr Suzuki contacted my chambers and asked for the matter to be relisted and it was relisted for today. The fact that Mr Suzuki has not bothered to attend today I take as an indication that he does not intend to press this application. In any event I would be obliged pursuant to the provisions of the Act not to approve the application, as the material supplied with the application indicates that a period of 21 days did not elapse between the issue of the last notice of employee representational rights and the date upon which employees were asked to vote to approve the agreement.

PN58

The material filed with the original application was a form F17 which was not properly sworn. Whilst that in itself may be a sufficient reason to not proceed with the matter, the information that was contained in the form F17 makes it clear that a notice of employee representational rights was not issued to employees prior to them being asked to vote, and that was at question 2.4 on the F17. Yet at question 2.8 on the F17 the employer states that the last notice of representational rights was given to an employee on 16 September, and then voting for the agreement commenced on 26 September. In either circumstance, either the lack of the issue of notice of employee representational rights, or the lack of a 21 day clear period between the issue of the last notice of employee representational rights and the date of commencement of voting, it is sufficient to warrant the dismissal of the proceedings and I so dismiss the application in this matter.

PN59

I will deal with the new application by the CFMEU if the matter is allocated to me by the panel head. I will request that the panel head allocate that matter to me as it may expedite the processing of the application by the CFMEU as filed on 15 November. Nothing else?

PN60

MR WAINWRIGHT: No.

PN61

THE COMMISSIONER: On that basis the Tribunal stands adjourned.

<ADJOURNED INDEFINITELY [2.24PM]