![]() |
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051032-1
SENIOR DEPUTY PRESIDENT WATSON
AG2014/8087 and AG2014/8088
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Application by GCS Concrete Pumping Pty Ltd
(AG2014/8088)
GCS Concrete Pumping Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014
(ODN AG2012/8815)
[AE894760 Print PR525256]]
Melbourne
2.11PM, MONDAY, 24 NOVEMBER 2014
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE
PN1
THE SENIOR DEPUTY PRESIDENT: I’ll take appearances. Who’s appearing for the company?
PN2
MR S. SCOTT: May it please the commission, Stephen Brenton Scott appears for the Global Services Group.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, very well. And that’s in relation to both matters?
PN4
MR SCOTT: Correct, sir.
PN5
THE SENIOR DEPUTY PRESIDENT: Yes, very well. And?
PN6
MR J. NICHOLAS: My name is Nicholas. I appear on behalf of the CFMEU in both matters.
PN7
THE SENIOR DEPUTY PRESIDENT: Yes, very well. I think the CFMEU has proposed there should be directions issued in these matters for the filing of statements and evidentiary materials and outlines of submission. What’s your view in relation to that, Mr Scott? I take it you’re aware of that proposal?
PN8
MR SCOTT: Yes, sir, in fact we have provided an email to the commission which essentially states that we support directions in the general terms proposed by the CFMEU. However, as we are not aware at this stage of any grounds for the CFMEU’s appearance, we would prefer that the CFMEU provided its summary of submissions first, followed by ourselves, and with both parties given the right of reply.
PN9
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Nicholas, what’s your position in respect of that?
PN10
MR NICHOLAS: The CFMEU’s position is that proposal on behalf of the applicant puts before the cart before the horse. There are applications made under section 225. Those applications will need to be determined by reference to the matters in section 226. There’s no automatic right for an employer to terminate an enterprise agreement. Indeed the presumption under the Act is that enterprise agreements continue unless the criteria for termination has been established and we say it’s for the applicant to satisfy the commission of the matters in section 226, generally that termination is not contrary to the public interest.
PN11
And then that it’s appropriate in all the circumstances taking into account the views of including the CFMEU, which is covered by both these agreements, the views - well, in terms of what objections, if we could put the views of the CFMEU in that way, I suppose - is that will depend on what the employer says are all the circumstances and then the CFMEU can consider whether there are any other circumstances it submits the commission should take into account. The form 24B and C in both matters are spartan. I think that’s probably a fair summary of what is put on behalf of the applicants. For example, paragraph 2.3 of the form 24C in both matters, in terms of the grounds, refers to assisting the applicant administratively. This is a point that the CFMEU is not sure what that really means without further information. That paragraph also refers to clarifying some kind of employee confusion. It’s fairly difficult to respond about knowing what the applicant says is not clear and what confusion it says there.
PN12
The CFMEU is aware, and I suppose in the context it should be clear to the commission early in the proceedings, that there is, in terms of CASC, this agreement which in terms of coverage has carved out two specific sites and otherwise it’s of general application in the building industry. Those two particular sites have site-specific agreements that apply and what we presume from the applicant is that they say there are no employees currently at this time employed under this agreement but they’re employed on those specific sites.
PN13
It’s clear the applicant moves its employees around from site to site so, in terms of that, we would really need some more information from the applicant as to why it says in those circumstances termination of this agreement is appropriate.
PN14
THE SENIOR DEPUTY PRESIDENT: But in terms of preparing the material, the applicant may go to some trouble in preparing material in relation to which the union has no issue so there is some benefit of the applicant being aware prior to preparing these materials of the basis upon which objection is raised by the CFMEU, is there not?
PN15
MR NICHOLAS: Well, perhaps, Senior Deputy President, but really it’s for the applicant to establish to the commission that it’s appropriate in this particular circumstance.
PN16
THE SENIOR DEPUTY PRESIDENT: Yes, but I don’t want to put the applicant - - -
PN17
MR NICHOLAS: The applicant proposes that there is an automatic right to termination, which of course there isn’t.
PN18
THE SENIOR DEPUTY PRESIDENT: Well, I don’t think that’s ever been asserted by the company in either of its application or by Mr Scott. The point I’m making is the applicant may well expend some effort in preparing material which in fact won’t arise or be subject to challenge in these proceedings.
PN19
MR NICHOLAS: Well, of course that’s a matter for it, well, what material it says is relevant, and I don’t presuppose to determine that for the applicant. It’s their application and, on the CFMEU’s proposal, they have an opportunity to put what material they say is relevant and they get an opportunity to respond to any material that the union has provided. In terms of the applicant’s proposal, essentially as I understand from Mr Scott this morning from discussions we had just prior to the hearing that the applicant’s proposal actually entails a further step that is an opportunity for the applicant to respond to the CFMEU’s responsive material, if I can put it that way. That would mean that there is - - -
PN20
THE SENIOR DEPUTY PRESIDENT: Sorry - - -
PN21
MR NICHOLAS: - - - two times for the CFMEU to provide materials and then two times for the applicant to provide material. That’s clearly less efficient than the CFMEU’s proposal, which is the usual way that matters would proceed in my experience in the commission. I understand that procedure is at the discretion of the commission but, in terms of that, it should certainly perform its functions by reference to section 577 which includes considerations of fairness, to quickness. On the CFMEU’s proposal it’s certainly fair to both sides and takes out an extra step in the applicant’s proposal. So we’d say that the CFMEU’s position is both fair, just and quicker and more efficient than the applicant.
PN22
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN23
MR NICHOLAS: I think that’s all I can say, Senior Deputy President. On our proposal there’s an opportunity for both sides to put forward appropriate material and it gets to hearing in a quicker fashion than the proposal put by the applicant.
PN24
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Scott, anything further in relation to that?
PN25
MR SCOTT: All I can really add is that the whole purpose of both of these applications is a tidying up, if you like, of the way in which the company operates. The Group consists of a number of companies and these two particular agreements are both out of term and have no employees covered by them and it is not the current intent of the company to engage people under these two entities. We are quite happy to take your inspections so that you may satisfy yourself.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Can I just take you to the CASC agreement. That operates in respect to, “Any activity underdone by the employer in the building and construction industry in the State of Western Australia.” Is that correct?
PN27
MR SCOTT: Yes, sir.
PN28
THE SENIOR DEPUTY PRESIDENT: And when you say no-one is covered by that agreement that means that the company has no employees engaged in work in the Western Australian building and construction industry?
PN29
MR SCOTT: It does but in the Group’s employment it is Global Construction Services Industrial Services that’s covered by an enterprise agreement which was approved with some amendments - approved this year. But despite those amendments nobody is covered by the CASC agreement or the GCS Concrete Pumping Agreement.
PN30
THE SENIOR DEPUTY PRESIDENT: And that’s because neither of those entities, CASC Construction Pty Ltd or GCS Concrete Pumping Pty Ltd employ any persons undertaking work in the Western Australian construction industry?
PN31
MR SCOTT: That’s correct, sir.
PN32
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN33
MR NICHOLAS: Senior Deputy President, I can’t let that go past without comment that the union’s understanding is that CASC employs - the company employs people in the construction industry in Western Australia, although they are employed at either one of those two specific sites that this relevant agreement here does not cover.
PN34
THE SENIOR DEPUTY PRESIDENT: I’m sorry, there’s an exclusion in the agreement.
PN35
MR NICHOLAS: Yes, that was made by variation.
PN36
THE SENIOR DEPUTY PRESIDENT: I see.
PN37
MR NICHOLAS: The copy you have may not have that.
PN38
THE SENIOR DEPUTY PRESIDENT: The May Holman development and the Brookfield Place Tower, is it, what you’re referring to?
PN39
MR NICHOLAS: That’s right. So there are currently employees at those sites and our experience with this company over a very long period of time is that they transfer employees between sites.
PN40
THE SENIOR DEPUTY PRESIDENT: Yes.
PN41
MR NICHOLAS: So one of the submissions we are likely to make is that the interests of those employees that might currently not be covered by this agreement but would be covered if they were transferred, that would be the very relevant consideration in terms of all the circumstances of this application.
PN42
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN43
MR SCOTT: If I could add, sir, that there are in existence two greenfields agreement, one covering the May Holman Centre and one covering the Brookfield Tower 2. The respondent employer in both these agreements is CASC. When those projects come to an end that will be the end of employment under those greenfields agreements and with CASC.
PN44
THE SENIOR DEPUTY PRESIDENT: Yes, well, okay, thank you for that. I understand in both cases any matters which require evidence will obviously result in evidence that assists me but, from what you are saying subject to any later evidence, Mr Scott, is in terms of section 226 of the Act which requires me to have regard to the views of employees, each employer and each employee organisation covered by the agreement. Your position is there are no employees and the only relevant entities are the employer, either CASC in relation to its agreement or GCS in relation to its, and an employee organisation, the CFMEU in each instance.
PN45
MR SCOTT: Correct, sir.
PN46
THE SENIOR DEPUTY PRESIDENT: Yes, very well, okay. Finally, Mr Scott, the proposed directions provided by the CFMEU suggest you file materials by 28 November. Are you in a position to do that?
PN47
MR SCOTT: We probably would like - given the date today we’d like an extension of that. We would need more than a week.
PN48
THE SENIOR DEPUTY PRESIDENT: Till when?
PN49
MR SCOTT: That would be 10 December.
PN50
THE SENIOR DEPUTY PRESIDENT: And how would that affect you or what’s your position in respect of that, Mr Nicholas, and how would it affect the 12 December date?
PN51
MR NICHOLAS: Just in terms of that, Senior Deputy President, we’d just see if the corresponding extension to the time for the CFMEU to file its materials so that would put the date for the proposal to 19 December . I’m aware that if there is then a week for responsive materials that will put it in the Christmas break. So it may be helpful to have some idea of when this matter might be brought on for hearing in terms of the time frames for the parties to file materials.
PN52
THE SENIOR DEPUTY PRESIDENT: Yes, well, it’s not going to be this year. It could but not having regard to 19 December date which is indicated there for the final filing so let’s - - -
PN53
MR SCOTT: If it’s of any assistance, sir, the GCS Group closes down at Christmas on 19 December and reopens on 5 January.
PN54
THE SENIOR DEPUTY PRESIDENT: 5 January, okay. Well, if that’s case, what I would propose is that the matter be listed for hearing on Tuesday, 20 January and again I’ll deal with it by way of video but we’ll start earlier your time so just bear with me. Let’s say 1 o’clock here would be, what, 10 o’clock in Perth? Is that correct?
PN55
MR NICHOLAS: I think that’s right.
PN56
THE SENIOR DEPUTY PRESIDENT: So 10 o’clock in Perth, 1 o’clock here and, working back from there, you’re effectively saying the period, the 19th to the 5th, is useless for the applicants. Mr Scott, is that correct?
PN57
MR SCOTT: Say again, sir?
PN58
THE SENIOR DEPUTY PRESIDENT: You’re effectively saying 19 December to 5 January is a non-operative period for the company?
PN59
MR SCOTT: Correct, sir.
PN60
THE SENIOR DEPUTY PRESIDENT: Yes, very well, what I will do in respect to you, Mr Nicholas, is ask that the union file and outline or direct that the union file an outline of its objections based on the material in forms 24B and C in each matter. I understand your point that until you see the full materials you’re not entirely sure of the extent and basis of your objection but, to the extent that you can identify the basis upon which objection will be made by reference to the 24B and C materials, if you could do that by - are you able to do that by Wednesday of this week? I can’t imagine it’s going to be a lengthy document or an onerous task.
PN61
MR NICHOLAS: That’s right, yes, we can do that.
PN62
THE SENIOR DEPUTY PRESIDENT: Yes, if you could do that by the 26th then I’ll issue directions reflecting those suggested by the CFMEU save that the date of 28 November will be 5 December. The date of 12 December will be 19 December and the date of 19 December for reply materials will become 9 January. Now, I notice that you’ve indicated the desire for two days for hearing. Do you think that will be necessary, Mr Scott and Mr Nicholas?
PN63
MR SCOTT: We would be happy to do it on papers unless - - -
PN64
THE SENIOR DEPUTY PRESIDENT: Unless there’s a requirement for cross-examination, yes. Well, what I’ll do is I’ll reserve the 21st but hopefully can be disposed of on the 20th, if not on the papers, so if upon receipt of all of the material on the 9th, Mr Nicholas, you can confer early in the following week with Mr Scott as to the requirement for cross-examination. If cross-examination is not required you should also confer as to whether the matter can be dealt with on the basis of the written materials evidence and evidence which is uncontested and the outlines of submission and, if you can advise me one side or the other of essentially a joint position by say Wednesday, 14 January, that will allow me to know how the matter will be proceeding from there.
PN65
And the joint position may be that there is no agreed position that one side thinks a hearing is necessary even though the other doesn’t or both sides don’t believe a hearing is necessary, the evidence is accepted, or both sides believe the hearing is required. Could be any of those combinations. Okay, was there anything further that can usefully be done today?
PN66
MR NICHOLAS: I have nothing, sir.
PN67
MR SCOTT: No, nothing from this side.
PN68
THE SENIOR DEPUTY PRESIDENT: Very well, well, thank you all for your time this morning and I’ll resume my afternoon.
<ADJOURNED INDEFINITELY [2.37PM]
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2014/753.html