AG2012/9058, Transcript of Proceedings [2012] FWATrans 918 (29 August 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1034440-1

COMMISSIONER STEEL

AG2012/9058

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

Application by Morgan's Cranes Pty Ltd
(AG2012/9058)





Adelaide

11.02AM, WEDNESDAY, 22 AUGUST 2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN ADELAIDE

PN1

THE COMMISSIONER: Thanks, Mr Earls. Sorry, I'm just looking at myself on the screen.

PN2

MR T EARLS: You're on TV, Commissioner.

PN3

THE COMMISSIONER: No, I think you guys are, I'm not. Can we turn that off? Mr Earls might get distracted.

PN4

MR EARLS: That was something they gave us in the College of Law. They made us video ourselves interviewing a client and it's quite a disturbing feature.

PN5

THE COMMISSIONER: It is.

PN6

MR EARLS: If it please the Tribunal, Earls initial T, for the applicant. Also with me is Miss Stewart from Master Builders and Mr Morgan, managing director of the applicant.

PN7

THE COMMISSIONER: Thank you. Have you any remarks about the agreement?

PN8

MR EARLS: No, Commissioner - I have some brief remarks. This is a replacement agreement for an earlier enterprise agreement that is more or less along the same structure as this agreement. The agreement itself was initially purported to be made in 2011. Unfortunately our member had misunderstood the requirements for formal approval and on that basis had to re-go the access period in relation to the agreement, and as a result the agreement has been made in 2012. But no other aspect of the agreement has changed. This is the document that was initially put forward in the process, drafted on 3 August 2011, and no changes were made subsequent.

PN9

THE COMMISSIONER: Okay.

PN10

MR EARLS: So in relation to the statutory criteria the statutory declaration sets out that the timeframes have been met and the agreement provides terms and conditions and overall remuneration far superior to the conditions in the award.

PN11

THE COMMISSIONER: Mr Earls, can I direct you to the apprenticeship clause?

PN12

MR EARLS: Yes.

PN13

THE COMMISSIONER: Obviously it was the intention that this agreement covers apprentices?

PN14

MR EARLS: That's correct.

PN15

THE COMMISSIONER: Are they actually employed?

PN16

MR W MORGAN: No, I don't have any apprentices at the moment.

PN17

MR EARLS: No.

PN18

THE COMMISSIONER: Do you have occasion to employ them?

PN19

MR MORGAN: I've gone away from having boilermakers or whatever in my crew. I basically just have crane drivers and riggers.

PN20

THE COMMISSIONER: Yes, I could see that by your classifications but the issue I have with that is that training is not work and apprentices are something other than workers.

PN21

MR MORGAN: Yes.

PN22

THE COMMISSIONER: And the agreement intends to treat them like workers. Unfortunately you can't do so because there is a different legislation comes into effect for apprentices and that's reflected in clause 15 of the parent award, or in the model award. There have been two court cases since you put your application in, Mr Earls. One in the Federal Magistrates Court and there's one here that reinforce that apprentices are special, and the provisions that apply in a normal award do not apply to training.

PN23

MR EARLS: Yes, the Master Builders Group Training Scheme v CFMEU is the - or sorry, the CFMEU v Master Builders Group Training Scheme is the Full Bench Federal Court matter on that one, Commissioner.

PN24

THE COMMISSIONER: Yes.

PN25

MR EARLS: We were successful in arguing that the training wasn't work.

PN26

THE COMMISSIONER: The training?

PN27

MR EARLS: The training was not work.

PN28

THE COMMISSIONER: Right. Okay, we're on furious agreement.

PN29

MR EARLS: Yes.

PN30

THE COMMISSIONER: So in that respect it would be helpful, if you did want to have apprentices, that you included, say a clause, provision 15 of the model award, which would cover all the issues by reference to legislation et cetera.

PN31

MR EARLS: Perhaps if we just - - -

PN32

THE COMMISSIONER: If you don't want to have apprentices - - -

PN33

MR EARLS: Well, perhaps if we have an undertaking that apprentices won't be covered that might cover that.

PN34

THE COMMISSIONER: That would solve the problem.

PN35

MR EARLS: And the award would then continue to apply, and that's probably the easiest way.

PN36

THE COMMISSIONER: Well, that will sort the issue. In terms of your redundancy clause which is, unlike some others I've seen today, quite clear, the issue is you're going to make a contribution of up to $60 per week to the BIRST. Why is there some variation up to $60? Does it vary according to jobs or how does it vary?

PN37

MR MORGAN: I don't have any full-time employees. My employees are all casual anyway so I haven't really had an issue with it as yet. I've basically - I've gone with what - I trust what Tom says, basically.

PN38

THE COMMISSIONER: Okay, was it meant to be $60?

PN39

MR EARLS: Well, only in so far as the BIRST contains exemptions in circumstances where, for example, you weren't working on commercial or industrial sites. So the intention is it's $60 other than where there's no payment made. Similarly if a person took unlawful industrial action on a day they'd lose their BIRST entitlement for the week.

PN40

THE COMMISSIONER: So that will be reduced by the incidence of work on non commercial sites, will it?

PN41

MR EARLS: Or it would be authorised in circumstances - on sites where the BIRST agreement would not apply, but also in circumstances where the employee was not eligible for BIRST contributions on the basis they'd taken unauthorised paid leave or unauthorised unpaid leave.

PN42

THE COMMISSIONER: Okay, I understand. My last enquiry is on the travelling clause, clause 17. Clause 17.3 which refers to discussions about costs et cetera, now this is when you're requiring employees to travel to long distances so what's the view on this clause? What is it meant to - - -

PN43

MR EARLS: Well, it's facilitative. The company pays fairly generous terms and conditions. They pay a fares allowance which is in the vicinity of double the award fares allowance, and so the intention of this is that as a general premise that very generous fares allowance would apply. But in circumstances where a person had gone a substantial distance beyond that, that the person is directed to discuss that with the company and make alternative arrangements.

PN44

THE COMMISSIONER: Okay.

PN45

MR EARLS: Which of course a dispute resolution process could be used in the very unlikely event of a dispute. Because in this industry the much more likely outcome of not making an arrangement like that is the person simply won't attend the job.

PN46

THE COMMISSIONER: So it's facilitative for a consensus between the parties.

PN47

MR EARLS: Yes.

PN48

THE COMMISSIONER: Yes, okay.

PN49

MR MORGAN: I could give you an example of that right now if you want?

PN50

THE COMMISSIONER: No, I think I understand what Mr Earls is getting at, and on that basis there's always likely to be a positive outcome. As Mr Earls says, if there's a dispute you use the dispute clause and the fundamentals will apply. If it's travel at your instigation I know what most tribunals will say.

PN51

MR MORGAN: Yes.

PN52

THE COMMISSIONER: Now the vote for this agreement took place on 8 June. There are only a small number of employees, and on 8 June you provided another copy of the proposed agreement.

PN53

MR MORGAN: Yes.

PN54

THE COMMISSIONER: It was the same agreement?

PN55

MR MORGAN: Yes.

PN56

THE COMMISSIONER: So they had that former version since May probably?

PN57

MR MORGAN: Yes.

PN58

THE COMMISSIONER: Or did they?

PN59

MR EARLS: Sorry, yes, they've had that former version since May. I beg your pardon, I was just looking through the dates.

PN60

THE COMMISSIONER: Yes.

PN61

MR EARLS: The 29th is when they were advised of the ballot and that meeting, in so far as it was required, again reinforced the terms and the effect of the proposed agreement.

PN62

THE COMMISSIONER: Thanks Mr Earls.

PN63

Could you just try the gentleman again?

PN64

MR MORGAN: He has been trying to ring me so you should be right.

PN65

MR A PARISH: Hello, Andrew speaking. Hello?

PN66

THE ASSOCIATE: Mr Parish, this is Andrew calling from - - -

PN67

MR PARISH: Hello? Hello?

PN68

THE COMMISSIONER: Yes, Mr Parish, can you hear us?

PN69

MR PARISH: Yes I can now.

PN70

THE COMMISSIONER: Okay, thank you. This is Commissioner Steel from Fair Work Australia.

PN71

MR PARISH: Sorry, mate, I tried to call you back before and I vaguely could hear you. I didn't realise who - and I couldn't make anything out. But that's all right. What can I do for you?

PN72

THE COMMISSIONER: I just want a quick word.

PN73

MR PARISH: Yes.

PN74

THE COMMISSIONER: You're on loudspeaker so your employer can hear you.

PN75

MR PARISH: All right. No problem.

PN76

THE COMMISSIONER: We've gone through most of what I required in terms of the agreement.

PN77

MR PARISH: Yes.

PN78

THE COMMISSIONER: All I wanted was a quick chat with you in terms of you voted for the agreement.

PN79

MR PARISH: Yes. No worries.

PN80

THE COMMISSIONER: Were you happy with the process?

PN81

MR PARISH: Yes. Just give me a second, mate. I'll just go somewhere where I can hear you. I'll just get away from the machines. Just give me a minute and I'll run over. Hang on. All right, sorry mate.

PN82

THE COMMISSIONER: No, that's quiet. Thanks for that.

PN83

MR PARISH: Okay. Fire away.

PN84

THE COMMISSIONER: Okay, now I understand you had this document for some time, the proposed agreement?

PN85

MR PARISH: Yes.

PN86

THE COMMISSIONER: And you had a meeting on 8 June with your fellow employees?

PN87

MR PARISH: That's it. Yes.

PN88

THE COMMISSIONER: Where was the meeting?

PN89

MR PARISH: Sorry?

PN90

THE COMMISSIONER: Where was the meeting?

PN91

MR PARISH: Just at the yard.

PN92

THE COMMISSIONER: At the yard?

PN93

MR PARISH: Yes.

PN94

THE COMMISSIONER: And you were given a copy of the agreement again?

PN95

MR PARISH: Yes, we actually had a - yes, because we had our first meeting on the 21st of May but it wasn't enough notice so we had to send - they had to send out a third notice and then we had the final meeting on the 8th of June.

PN96

THE COMMISSIONER: Yes, I understand that.

PN97

MR PARISH: Okay.

PN98

THE COMMISSIONER: So on 8 June you had a look at the document again.

PN99

MR PARISH: Yes.

PN100

THE COMMISSIONER: Any questions were answered for you?

PN101

MR PARISH: Yes. Yes, everything was pretty clear made to us then.

PN102

THE COMMISSIONER: And I guess there was a show of hands, was there?

PN103

MR PARISH: Yes, because we read the EBA before voting and that.

PN104

THE COMMISSIONER: Okay, and there was a show of hands?

PN105

MR PARISH: Yes, that's how we agreed on it. Yes.

PN106

THE COMMISSIONER: Thanks very much for that. I'm sorry to have disturbed your morning.

PN107

MR PARISH: No, all good, mate. Sorry I've stuffed you around.

PN108

THE COMMISSIONER: That's okay. Thanks again.

PN109

MR PARISH: All right. No worries, buddy. See you.

PN110

THE COMMISSIONER: Okay, Mr Earls, your agreement will be approved. If you could provide that very brief undertaking on apprentices, should apprentices be employed at some time in the future, that will assist me.

PN111

MR EARLS: Yes, thank you Commissioner. We'll provide that as soon as practicable. Thank you

PN112

THE COMMISSIONER: Okay, that concludes the four we've got scheduled. Thank you for your assistance.

PN113

MR EARLS: Thank you.

PN114

THE COMMISSIONER: I need you for about 15 minutes in my chambers.

PN115

MR EARLS: Yes. Thank you Commissioner.

PN116

THE COMMISSIONER: And we might do some more business with you. This matter is adjourned.

<ADJOURNED INDEFINITELY [11.14AM]