AG2012/4007, Transcript of Proceedings [2012] FWATrans 299 (27 March 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033147-1

SENIOR DEPUTY PRESIDENT ACTON

AG2012/4007

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

Application by Duomec Mechanical Air Conditioning Pty Ltd
(AG2012/4007)





Melbourne

1.08PM, THURSDAY, 22 MARCH 2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. It's Senior Deputy President Acton here. We've got Mr Verbern?

PN2

MR P VERBERN: Yes, good afternoon your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Good afternoon. And Mr Langdon and Mr Troth from the company, is that right?

PN4

MR C LANGDON: Good afternoon, your Honour (indistinct).

PN5

THE SENIOR DEPUTY PRESIDENT: I've called this matter on for mention because I was concerned about whether the form F17 accurately reflects what's happening here. Mr Verbern, it might be best if I speak to you about this.

PN6

MR VERBERN: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Clause 3.6 of the form F17 says, in response to the question about whether the agreement contains and terms and conditions of employment that are less beneficial than equivalent terms in the reference instruments - - -

PN8

MR VERBERN: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: - - - being the award and so on, and the answer is no. I was wondering whether that's actually the case. Aren't there allowances, for example, in the award that aren't in here?

PN10

MR VERBERN: Not that I'm aware of, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Well, like meal allowance for example. Is that in here?

PN12

MR VERBERN: It's not listed as such. Craig, can you help me with that? Is there meal allowance paid in regards to the guys working?

PN13

MR LANGDON: It would be paid. Yes. I cannot see it in there listed on the (indistinct).

PN14

MR VERBERN: If we were looking for overtime or something like that, that might tell me.

PN15

MR LANGDON: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: I'm not sure there is an overtime, is there?

PN17

MR VERBERN: Additional hours, clause 11, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Clause 11? Yes, is there anything there about meal?

PN19

MR VERBERN: Yes, I can't see anything there about meals but you may be right, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. It's only one of the examples I think that I found in terms of where there might be some discrepancies between this agreement and the award. Now I know you say that overall they're better off, but I actually need the answers to those questions.

PN21

MR VERBERN: All right. Have you got an idea as to what other matters may be involved? I mean, you mentioned - - -

PN22

THE SENIOR DEPUTY PRESIDENT: No, I didn't do a thorough analysis I have to say. What I think I need you to do - - -

PN23

MR VERBERN: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: - - -is prepare a document which looks at what are the clauses in the agreement.

PN25

MR VERBERN: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: And what are the clauses in the award, which will then enable you to say, "Well, it hasn't got this clause" et cetera.

PN27

MR VERBERN: Okay. I'll do that. Do you need any further information, your Honour, in regards to 3.5 where the employees, in my view, are better off?

PN28

THE SENIOR DEPUTY PRESIDENT: No, no, that's fine. What I do need though is - so I need that document, a comparison of conditions. I also need a document which would compare how the employees would've been paid or the remuneration they would've received over a typical week under the award vis à vis the remuneration they'd receive under this agreement if they'd worked the same shift arrangement under the agreement. So let's pick a week. Say, let's pick - are these people paid fortnightly or weekly?

PN29

MR VERBERN: No, weekly aren't they, Craig?

PN30

MR LANGDON: Yes, weekly paid. Yes.

PN31

THE SENIOR DEPUTY PRESIDENT: Okay. Let's say for example for the week of - - -

PN32

MR VERBERN: Your Honour, if I may, it has got to be after 1 April 2012.

PN33

THE SENIOR DEPUTY PRESIDENT: I think we can assume - because we don't know that roster yet, do we?

PN34

MR VERBERN: No, no, but what I'm saying - well, the roster doesn't matter. I mean, they do work five days a week and occasionally work Saturdays. Is that right, Craig?

PN35

MR LANGDON: That's correct. Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Okay, so let's take the - - -

PN37

MR VERBERN: You need to make it after 1 April when the agreement, you know - - -

PN38

THE SENIOR DEPUTY PRESIDENT: We'll do it this way.

PN39

MR VERBERN: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Let's take the week of 13 February.

PN41

MR VERBERN: Yes.

PN42

THE SENIOR DEPUTY PRESIDENT: Okay?

PN43

MR VERBERN: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: Beginning 13 February. Do they get paid Monday to Friday?

PN45

MR VERBERN: Craig?

PN46

MR LANGDON: Yes. That's right.

PN47

MR VERBERN: They do.

PN48

THE SENIOR DEPUTY PRESIDENT: Okay, so we can take a week beginning the 13th?

PN49

MR VERBERN: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Tell me what they would've been paid under the award for that week.

PN51

MR VERBERN: Yes.

PN52

THE SENIOR DEPUTY PRESIDENT: And assume then that the agreement had been in operation.

PN53

MR VERBERN: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: So it had started then rather than on 1 April.

PN55

MR VERBERN: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: And what they would've been paid under the agreement if they'd worked the same roster. There are only three employees or something, isn't there?

PN57

MR VERBERN: Yes. Craig, it's you and three others, isn't it?

PN58

MR LANGDON: There are two directors and three employees.

PN59

MR VERBERN: But you are up there? But you are both working directors, I take it?

PN60

MR LANGDON: Yes.

PN61

MR VERBERN: Okay.

PN62

MR LANGDON: Actually - - -

PN63

THE SENIOR DEPUTY PRESIDENT: So there are actually five people covered, is there?

PN64

MR VERBERN: No, because Craig and the other director aren't covered by the agreement. It's only the three employees.

PN65

MR LANGDON: That's correct. Can I just make a correction as well? We actually pay Thursday to Thursday, I'm sorry.

PN66

THE SENIOR DEPUTY PRESIDENT: Do you? Okay, well let's take it the 9th through to the 15th of February.

PN67

MR VERBERN: The 9th to the 15th?

PN68

THE SENIOR DEPUTY PRESIDENT: Yes.

PN69

MR VERBERN: Yes, got that.

PN70

THE SENIOR DEPUTY PRESIDENT: Do the directors work in the firm?

PN71

MR VERBERN: Of course they do, but not under the agreement is what I'm trying to say, I think, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: But what do they work as?

PN73

MR VERBERN: Well, they work alongside the three employees.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes. So what are they doing, plumbing?

PN75

MR VERBERN: Craig?

PN76

MR LANGDON: Yes, we're conducting plumbing, estimating, all the tasks that a director would undertake.

PN77

THE SENIOR DEPUTY PRESIDENT: So would you say you're not covered by the classifications in the agreement?

PN78

MR LANGDON: Not that I believe, being an owner director of the company.

PN79

THE SENIOR DEPUTY PRESIDENT: No, no, that's different. There are your responsibilities as a director, but if you're actually paying yourself as an employee then you may be covered by the agreement if you fall within one of the classifications in the agreement. So you've got to distinguish the two roles.

PN80

MR VERBERN: Craig, are you a registered plumber?

PN81

MR LANGDON: No, I'm not. I am a director but that is my role. I'll be - that is very clear.

PN82

MR VERBERN: Okay, and what about the other director?

PN83

MR LANGDON: Stephen is a registered plumber.

PN84

MR VERBERN: Yes. So he would be covered by the agreement?

PN85

MR LANGDON: I didn't believe so, but if that is the case then - - -

PN86

MR VERBERN: Well, your Honour, clause 3 in the agreement refers to who's covered and I'm just quickly grabbing for the agreement as I speak. But it says that:

PN87

The agreement applies to the company in respect of all employees who are engaged in the onsite installation of air conditioning and mechanical services from the Queanbeyan office of the company in classifications under this agreement, and it applies to all such employees.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes.

PN89

MR VERBERN: And the employees we're referring to is plumber and plumber's labourer.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes.

PN91

MR VERBERN: I mean, does it really matter whether the director is both a director as well as a licensed plumber as such?

PN92

THE SENIOR DEPUTY PRESIDENT: Well, it may not in this instance but let's say in the instance of a company which had a different numbers configuration, if only three people voted and there were more directors et cetera, you'd need to count them in. But in this instance I've been told there's - the three employees who voted are what you would normally regard as employees.

PN93

MR VERBERN: Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: And then there's another director who could be regarded as covered. Is there anybody else apart from Mr Langdon?

PN95

MR VERBERN: Craig?

PN96

MR LANGDON: No.

PN97

MR VERBERN: No.

PN98

MR LANGDON: There's nobody else.

PN99

THE SENIOR DEPUTY PRESIDENT: So there are only five employees in the company?

PN100

MR VERBERN: Well, I think five people. Two of whom are directors and the other three who are workers covered by this agreement, is how I would be picturing it.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes. Well, as a matter of law that may not be technically right. But if three employees, as you'd regard them proper - - -

PN102

MR LANGDON: I don't - - -

PN103

THE SENIOR DEPUTY PRESIDENT: - - -have voted for it, then that's probably okay.

PN104

MR VERBERN: Yes.

PN105

THE SENIOR DEPUTY PRESIDENT: But for each employee who is covered by the agreement I would need that data from the 9th through to the 15th about what they would have earned under the award, if they had been working under the award.

PN106

MR VERBERN: Yes.

PN107

THE SENIOR DEPUTY PRESIDENT: And what they would have earned under this agreement if it had been in application.

PN108

MR VERBERN: So in a practical sense if I asked Mr Langdon to provide what the guys were paid between those dates, 9 February and 15 February, in terms of what they were actually paid, and then I go and do a check to see what they would have been paid working those same hours under the modern award, then we'd have the comparison for you to look at?

PN109

THE SENIOR DEPUTY PRESIDENT: No. Because you have to look at what they would have got under the agreement, don't you?

PN110

MR VERBERN: Well, you're saying that we use those hours to work out a payment after 1 April?

PN111

THE SENIOR DEPUTY PRESIDENT: Yes.

PN112

MR VERBERN: Okay. Yes I can do that.

PN113

MR LANGDON: Yes.

PN114

MR VERBERN: Yes, no dramas. Craig, you're working a 38 hour week, aren't you?

PN115

MR LANGDON: We are. Yes.

PN116

MR VERBERN: Yes. No RDOs in that week, was there? Can you remember?

PN117

MR LANGDON: I'm just looking on the calendar.

PN118

MR VERBERN: Yes, that would be good. Thanks. Otherwise we might just pick another week, your Honour.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes. Sure.

PN120

MR VERBERN: Yes.

PN121

MR LANGDON: No, there wasn't any RDOs.

PN122

MR VERBERN: Good. That works out well. Thank you for that, Craig.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, so if you can sort of calculate it for me. So don't just give me an all-up figure.

PN124

MR VERBERN: No, no, no. I'll detail it, even that I'll be able to understand it. Because if I don't understand it then you won't be able to. No, I'll make sure you have all the details.

PN125

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN126

MR VERBERN: I'll cite the clauses out of the award that I use, as well as the actual award I'm using.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes. Good.

PN128

MR VERBERN: Then you're saying that there may be some other allowances that aren't in the agreement that were in the award?

PN129

THE SENIOR DEPUTY PRESIDENT: Yes.

PN130

MR VERBERN: So I need to go and have a look at the award and see all the allowances, and then check to see which ones are in the agreement and which ones aren't.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes.

PN132

MR VERBERN: So I'll give you a list of those as well.

PN133

THE SENIOR DEPUTY PRESIDENT: Well, you just need that comparison document.

PN134

MR VERBERN: Yes.

PN135

THE SENIOR DEPUTY PRESIDENT: You need to go beyond allowances. You need to compare all the conditions under the award vis à vis all the conditions under the agreement.

PN136

MR VERBERN: I must say as well - well, I can't say it. I was going to say I have done that, but obviously I haven't done it properly because I missed at least one thing for starters, so, you know. No, I'm happy to do it again.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes.

PN138

MR VERBERN: The end result, presuming that we get the answer that overall the BOOT test is successful, it doesn't need to go to a vote again or anything like that?

PN139

THE SENIOR DEPUTY PRESIDENT: No it doesn't seem so. So long as I'm satisfied with that documentation I'll just put it through.

PN140

MR VERBERN: Yes, and is there a timeframe you want me to complete this by?

PN141

THE SENIOR DEPUTY PRESIDENT: How long do you think it's going to take you?

PN142

MR VERBERN: Well, not long, but I'm really under the pump at the moment with a whole range of things. Could I have it in by the end of next week?

PN143

THE SENIOR DEPUTY PRESIDENT: Yes. Sure.

PN144

MR VERBERN: Okay. Is that all right for you, Craig? There's no drama for you?

PN145

MR LANGDON: Yes. No, that's okay.

PN146

MR VERBERN: All right. Good. I'll give you a call a little bit later on this afternoon once we've finished with her Honour here, mate?

PN147

MR LANGDON: Yes.

PN148

MR VERBERN: Yes.

PN149

THE SENIOR DEPUTY PRESIDENT: Okay.

PN150

MR VERBERN: Nothing else?

PN151

THE SENIOR DEPUTY PRESIDENT: No. I'll adjourn this matter on that basis.

PN152

MR VERBERN: All the best. Have a good day.

PN153

THE SENIOR DEPUTY PRESIDENT: Okay. Bye.

<ADJOURNED ACCORDINGLY [1.19PM]