AG2012/4847, Transcript of Proceedings [2012] FWATrans 490 (8 May 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033526-1

COMMISSIONER BLAIR

AG2012/4847

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by A Grade Concrete Cutting (Aust) Pty Ltd
(AG2012/4847)
A Grade Concrete Cutting (Aust) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2008-2011

(ODN AG2010/7219)
[AE875129 Print PR995540]]




Melbourne

9.32AM, WEDNESDAY, 2 MAY 2012

PN1

THE COMMISSIONER: Good morning, appearances, please.

PN2

MS J. PRESPAKIS: I’m Jodie Prespakis.

PN3

MR D. PRESPAKIS: And I’m Damien Prespakis.

PN4

MS PRESPAKIS: We’re from A Grade Concrete Cutting.

PN5

THE COMMISSIONER: Thank you.

PN6

MS K. MARSHALL: And Marshall, initial K. I appear on behalf of the CFMEU.

PN7

THE COMMISSIONER: Thank you, Ms Marshall. Now, sorry to drag you in on this awful day but I think I spoke to you the other day, Ms Prespakis.

PN8

MS PRESPAKIS: Yes, you did.

PN9

THE COMMISSIONER: Yes, and you’ve made an application under section 225 but I think I drew your attention to the requirements of the Act particularly in regard to section 226 that goes to the grounds in which the tribunal must consider before it actually terminates an agreement.

PN10

MS PRESPAKIS: Yes.

PN11

THE COMMISSIONER: One of those is it’s satisfied that it’s not contrary to public interest to do so, that the tribunal considers it appropriate to terminate the agreement taking into account all the circumstances which are the views of the employees, each employer and each employee organisation, the circumstances of those employees, employers and organisations including the likely effect that the termination will have one each of them. So, Ms Marshall, I note your presence here today. Do you intend to oppose the application?

PN12

MS MARSHALL: Yes, we do, your Honour.

PN13

THE COMMISSIONER: Okay. And maybe you could indicate the reasons why.

PN14

MS MARSHALL: Yes, your Honour. I’ve been instructed that we are disputing the termination and a member of our office Lindsay Jones received a telephone call from Jodie of A Grade Concrete on 11 April, which would suggest that there are still employees working on the job. Therefore if the agreement was to be terminated, the workers, for example, that are in a CW3 classification could go from $32.34 an hour down to potentially $18.06 an hour as per the modern award.

PN15

Roe C handed down a decision on 16 January of this year, Australian Exhibits and Conference Employees Collective Agreement. Would your Honour like a copy of that?

PN16

THE COMMISSIONER: Yes, thanks.

PN17

MS MARSHALL: Where at paragraph 9 Roe C stated about halfway through the paragraph:

PN18

It is in the public interest for employees to be engaged under conditions where they are not disadvantaged when compared to the relevant modern award.

PN19

And we say they would be disadvantaged if they were to come off the EBA and on to the modern award.

PN20

THE COMMISSIONER: Okay, yes.

PN21

MS MARSHALL: Yes, his Honour applied the BOOT test when terminating the EBA.

PN22

THE COMMISSIONER: Okay. All right, thanks, Ms Marshall. Ms Prespakis, you indicated that there was no-one covered by the agreement any more.

PN23

MS PRESPAKIS: This is my husband. He’s the director but he does all the work.

PN24

THE COMMISSIONER: Sorry, thank you.

PN25

MR PRESPAKIS: We only went into the EBA for a job that we started on and the union got involved and it became a unionised site.

PN26

THE COMMISSIONER: Right.

PN27

MR PRESPAKIS: So we signed up on the EBA. That job finished over 12 months ago so that’s we’re unsure why we need to stay in.

PN28

THE COMMISSIONER: But do you still have any employees that would be covered by the agreement?

PN29

MR PRESPAKIS: Yes, but we’re all part-owners. There’s three of us currently part-owners that do the work.

PN30

THE COMMISSIONER: But Ms Marshall says that they have a member that’s indicated that he believes he’s still covered by the agreement.

PN31

MS PRESPAKIS: Yes, he still is. There are still a couple of workers that are covered by the agreement and we do pay them accordingly and we haven’t changed. Even though it’s not a union site job or anything we still follow the EBA but that work is - - -

PN32

THE COMMISSIONER: EBA rates?

PN33

MS PRESPAKIS: Yes, EBA rates but we no longer – the work is finished. So these employees will be redundant.

PN34

MR PRESPAKIS: We’re not too sure where we go from there. We’ve got no more work.

PN35

THE COMMISSIONER: Okay.

PN36

MS PRESPAKIS: We’ve got no more work.

PN37

THE COMMISSIONER: I think the best thing to do – I mean, rather than deal and make a determination this morning, I think what needs to happen is that Ms Marshall may, or the organiser may need to meet with yourselves to discuss actually the implications of (a) what employees you do have that are covered by the agreement. You say that they’re to be made redundant. Whether they’re aware of that is another issue. If they’re not going to be made redundant, then what effect would the termination of the agreement have on them and what’s their view about that. All those things need to be taken into account so it’s simply not a matter of saying, “Well, the agreement is past its nominal expiry date and we’re not doing that job any more so therefore we terminate the agreement.” There’s other circumstances that do need to be taken into account and as Ms Marshall pointed out - - -

PN38

MR PRESPAKIS: Which other circumstances?

PN39

THE COMMISSIONER: I just pointed them out to you.

PN40

MR PRESPAKIS: Can you sort of, sorry, I maybe missed one. What’s the - - -

PN41

THE COMMISSIONER: All right, I’ll say them to you again.

PN42

MR PRESPAKIS: Yes.

PN43

THE COMMISSIONER: Whether you still actually have employees that are covered by the agreement - - -

PN44

MR PRESPAKIS: Yes.

PN45

THE COMMISSIONER: - - - what would be the impact upon them and what is their view about termination of the agreement. You say that you intend to make them redundant: (a) are they aware of that - - -

PN46

MR PRESPAKIS: Yes, they are.

PN47

THE COMMISSIONER: - - - and what are the consequences of that and then is it in the public interest to actually terminate the agreement if, for instance, you still have somebody that might be covered by the agreement and they, as Ms Marshall has pointed out, apply the BOOT test, which is the better off overall test. If it means that they’re going to go backwards because they fall under a modern award, then there’s very little value in terminating the agreement. That’s why I think it’s important - - -

PN48

MS PRESPAKIS: When they were employed they knew when that job was finished that was it. We had no more work for them.

PN49

MR PRESPAKIS: So what do we do if we’ve got no work for the guys?

PN50

THE COMMISSIONER: Well, that’s what I’m saying to you. I think the best thing to do would be for you to have some discussions with the union, that they do have a member.

PN51

MR PRESPAKIS: Yes, will the union include us in discussions because on that previous job the union - - -

PN52

THE COMMISSIONER: I don’t - - -

PN53

MR PRESPAKIS: - - - representative - - -

PN54

THE COMMISSIONER: Sorry, I’m not quite sure that you’re actually listening to what I’m saying. I’ve said it twice and I’m going to say it the third time. I think you need to have discussions – that’s you - - -

PN55

MR PRESPAKIS: Yes, but - - -

PN56

THE COMMISSIONER: - - - with the union.

PN57

MR PRESPAKIS: - - - I’m explaining that when a union representative came on site, us three, us as the shareholders, were excluded from any meetings so are we now allowed in meetings with the union.

PN58

THE COMMISSIONER: Yes, because you’re the respondent. You’re the parties bound by the agreement so the union must talk to you representing them.

PN59

MR PRESPAKIS: Well, they excluded us on other occasions.

PN60

MS MARSHALL: Even though they paid the union fees.

PN61

MR PRESPAKIS: So I’m not too sure whether - - -

PN62

THE COMMISSIONER: Ms Marshall, I’m not quite sure - - -

PN63

MS MARSHALL: Your Honour, I can arrange for their site organiser to ring Damien and Jodie - - -

PN64

MS PRESPAKIS: But we don’t have a site organiser any more. There’s no EBA, there’s no union site jobs no more.

PN65

THE COMMISSIONER: No - - -

PN66

MS MARSHALL: There are sites – each union organiser, your Honour, is given an area so whichever organiser your area falls into he’ll contact you and I’ll make sure of that - - -

PN67

THE COMMISSIONER: Yes.

PN68

MS PRESPAKIS: But we’re only domestic now.

PN69

MS MARSHALL: The discussions will be held - - -

PN70

THE COMMISSIONER: There seems to be a gap in you listening to what I’m saying.

PN71

MS PRESPAKIS: It’s just that we’re – it’s all new for us. That’s all. We don’t understand any of this.

PN72

THE COMMISSIONER: And that’s why I’m saying to you, and if you listen very carefully, that’s why I’m saying to you that Ms Marshall will make arrangements with the area organiser to come and talk to you about your application and the implications if the agreement is terminated and what are the implications if it’s not terminated. Okay?

PN73

MS PRESPAKIS: So sorry, your Honour, we also say that even if there are no employees under the EBA, if it’s not being applied, then there’s no harm in leaving it there?

PN74

THE COMMISSIONER: Well, then that needs to be talked through - - -

PN75

MS PRESPAKIS: So sorry, the union organiser will talk to us.

PN76

THE COMMISSIONER: - - - with Mr Prespakis.

PN77

MS PRESPAKIS: Yes.

PN78

THE COMMISSIONER: Okay? All right?

PN79

MS PRESPAKIS: Yes.

PN80

THE COMMISSIONER: Okay, all right. I’ve got the application. You have your discussions. If you still think you need to continue with the application after you have the discussions, then you’ll notify my associate and I’ll relist the matter.

PN81

MS PRESPAKIS: Yes.

PN82

THE COMMISSIONER: Okay? But have the discussions first, I think, which I believe may clarify a lot of things.

PN83

MR PRESPAKIS: Yes, when we have the discussion - - -

PN84

MS MARSHALL: Yes, definitely us.

PN85

MR PRESPAKIS: - - - with you and then you’ll come to something and then - - -

PN86

MS MARSHALL: I’ll contact the site organiser and I’ll get him to give you a call.

PN87

THE COMMISSIONER: She means the area organiser.

PN88

MS MARSHALL: Yes, sorry. Yes, thank you, your Honour.

PN89

THE COMMISSIONER: Yes. All right.

PN90

MR PRESPAKIS: No worries.

PN91

THE COMMISSIONER: Okay. We’ll stand adjourned, thanks.

<ADJOURNED INDEFINITELY [9.41AM]