AG2015/5802, Transcript of Proceedings [2015] FWCTrans 608 (5 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052629

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COMMISSIONER LEE

AG2015/5802

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

Application by Studio Steel Pty Ltd
(AG2015/5802)

Melbourne

2.00 PM, FRIDAY, 23 OCTOBER 2015

PN1

THE COMMISSIONER: Good afternoon, Mr Hamlet. How are you?

PN2

MR B HAMLET: Good, thank you, Commissioner. How are you?

PN3

THE COMMISSIONER: I am very well. My name is Commissioner Lee. Your application for approval of an agreement for Studio Steel has been allocated to me. I understand that you have made some earlier applications for approvals of agreement, but there have been some procedural flaws with those and they were ultimately withdrawn. Is that right?

PN4

MR HAMLET: Yes, that's correct. We're boilermakers. We're probably not very good administrators - - -

PN5

THE COMMISSIONER: Yes.

PN6

MR HAMLET: - - - but we have a very capable lady that helps us, by the name of Mary O'Reilly.

PN7

THE COMMISSIONER: Yes.

PN8

MR HAMLET: She is in the office now, as well, on speakerphone.

PN9

THE COMMISSIONER: Yes, I see. All right.

PN10

MR HAMLET: She can probably help us along with the paperwork.

PN11

THE COMMISSIONER: Well, look, I'm just going to explain some principles, I suppose, so you're clear about why I've listed the matter for hearing.

PN12

MR HAMLET: Yes.

PN13

THE COMMISSIONER: This is a hearing and the conversation we're having is recorded. The reason I've called the hearing is that I still don't have enough information to decide whether or not I should approve the agreement.

PN14

MR HAMLET: Okay.

PN15

THE COMMISSIONER: You need to be clear that there is no discretion for me to approve an agreement unless - well, I'll put this another way. I'm not able to approve an agreement unless I'm satisfied that the various requirements of the Fair Work Act which apply to the approval of agreements, have been satisfied. If I don't know or if I think that the answer to one of the questions in the statutory declaration that I have to have regard to doesn't meet the test in the Act, I simply can't approve the agreement. Do you understand?

PN16

MR HAMLET: Yes.

PN17

THE COMMISSIONER: That's the scheme of the legislation. Now, normally with most agreements, materials come in and there might be some queries or sometimes there are no queries at all. There is no communication with the applicant and the agreement is simply approved. On other occasions there is more difficulty and so, when it's necessary, I'll list the matter for hearing to ask questions directly of the applicant and that is what I'm doing on this particular occasion. You understand that?

PN18

MR HAMLET: Yes.

PN19

THE COMMISSIONER: Right. Now, the particular concerns I've got with this agreement really relate to the questions at 2.3 in the F17 - have you got a copy of your F17 there?

PN20

MR HAMLET: I'll just have a look. Yes.

PN21

THE COMMISSIONER: I know you've put in something to Ms Bajowski that was referred to as a draft F17, but I'm referring to the F17 that you've actually submitted with your application. Do you understand?

PN22

MR HAMLET: Okay.

PN23

MS M O'REILLY: Not the amended one that we sent through?

PN24

MR HAMLET: Not the amended one?

PN25

THE COMMISSIONER: No, not the amended one.

PN26

MR HAMLET: The original one, okay. Yes, okay.

PN27

THE COMMISSIONER: Now, question 2.3.

PN28

MR HAMLET: Yes.

PN29

THE COMMISSIONER: Related to that is part of the answer to question 2.8, so just have a look at question 2.3.

PN30

MR HAMLET: It says:

PN31

Did the employer take all reasonable steps to give notice of the rights of the representation by a bargaining representative to each employee?

PN32

THE COMMISSIONER: Yes.

PN33

MR HAMLET: Yes.

PN34

THE COMMISSIONER: So you know what that notice is and you've supplied a copy of the notice that you did say you provided.

PN35

MS O'REILLY: Yes, we did.

PN36

MR HAMLET: Yes.

PN37

THE COMMISSIONER: That's a complying notice. Now, if you look at question 2.8, in answer to that question you say the date of the last notice of representational rights given to an employee who will be covered by the agreement - you have said that the date was 15 September.

PN38

MR HAMLET: Yes.

PN39

THE COMMISSIONER: Is that correct?

PN40

MS O'REILLY: Yes, that was the second date after we had the email from Victoria.

PN41

THE COMMISSIONER: Okay. Did you give a notice of representational rights on another occasion earlier than that?

PN42

MS O'REILLY: No, we did it when we got that email from Victoria saying that we needed to get that printout. I hadn't thought that we needed to give them the printout.

PN43

MR HAMLET: We had only done it verbally.

PN44

THE COMMISSIONER: Right.

PN45

MR HAMLET: Not in writing.

PN46

THE COMMISSIONER: So just to be clear, the only time you have put out a notice of representational rights was - - -

PN47

MR HAMLET: In writing - - -

PN48

MS O'REILLY: In writing.

PN49

MR HAMLET: - - - was the 15th of the 9th.

PN50

THE COMMISSIONER: Right. Okay. When did you give a copy - I'm looking at question 2.4 now.

PN51

MR HAMLET: 2.3, did you say?

PN52

THE COMMISSIONER: No, 2.4.

PN53

MR HAMLET: 2.4.

PN54

THE COMMISSIONER: When did you give a copy of the written agreement to the staff?

PN55

MR HAMLET: On the 4th of the 9th or the 1st of the 9th. Well, it's not something that we just - it's something that we've been talking over with our staff from the 1st of the 9th.

PN56

THE COMMISSIONER: Yes.

PN57

MR HAMLET: We had an agreement that we looked at, we talked about. It has been an ongoing thing between us and our staff since the 1st of the 9th.

PN58

THE COMMISSIONER: Since the 1st of the 9th?

PN59

MR HAMLET: Yes. That's when they got the original copy for them to make comment on.

PN60

THE COMMISSIONER: Yes. Were there changes to that?

PN61

MR HAMLET: No, there were no changes to it, Commissioner. They were quite happy, because it's simply a pay increase.

PN62

THE COMMISSIONER: All right. So there were no changes to the copy that you provided to all staff on 1 September?

PN63

MR HAMLET: I think there was the one error in - it was just a typo error on the penalties - yes, there was one. It was pointed out to us that it was just a typographical error, which was amended, and it was to do with the percentage rates of casual staff. I don't have the thing right in front of me at the moment.

PN64

THE COMMISSIONER: All right. So that was amended?

PN65

MR HAMLET: Yes, that was amended.

PN66

THE COMMISSIONER: Did you give an amended copy of the agreement to the staff?

PN67

MR HAMLET: Yes.

PN68

THE COMMISSIONER: When did you do that? When did you give the staff an amended copy of the agreement?

PN69

MR HAMLET: I don't know.

PN70

THE COMMISSIONER: Does Mary know?

PN71

MR HAMLET: I can't exactly remember that, but it was just a typographical error.

PN72

THE COMMISSIONER: All right. The next question is question 2.5.

PN73

MR HAMLET: 2.5.

PN74

THE COMMISSIONER: In question 2.5, the question is this - and you need to consider the terms of the question carefully:

PN75

When did you notify the relevant employees of the date and place at which the vote was to occur and the voting method to be used?

PN76

To be clear, you must advise your employees when the vote is going to happen, where it's going to happen and how the vote will happen. It doesn't matter what form the vote takes. It could be a postal ballot or electronic or show of hands.

PN77

MR HAMLET: Yes, that was done in the privacy of my employees. I wasn't present. We were told that they - we gave them a copy. We asked them to review it, talk about it and their representative, Kevin Smith, would then come to us with the decision.

PN78

THE COMMISSIONER: Who is Kevin Smith?

PN79

MR HAMLET: Yes, Kevin Smith.

PN80

THE COMMISSIONER: Yes. Who is he?

PN81

MR HAMLET: He's the workshop supervisor.

PN82

THE COMMISSIONER: Right.

PN83

MR HAMLET: If there was an elected chairman through the talks, he would have been the one. He is my workshop supervisor. He's my site supervisor.

PN84

THE COMMISSIONER: Yes. So he's like your second in command, is he?

PN85

MR HAMLET: Yes. He is on the workshop floor.

PN86

THE COMMISSIONER: Right. He has not been nominated as a bargaining representative, has he?

PN87

MR HAMLET: We're a small - - -

PN88

THE COMMISSIONER: No. That's all right.

PN89

MR HAMLET: You know, we've got six employees at the moment and decreasing by the day.

PN90

THE COMMISSIONER: Right. Okay. So Mr Smith, you're saying, conducted the ballot?

PN91

MR HAMLET: He was present at the ballot.

PN92

THE COMMISSIONER: Yes.

PN93

MR HAMLET: The most senior person on the factory floor.

PN94

THE COMMISSIONER: This is important - - -

PN95

MR HAMLET: I understand it's important.

PN96

THE COMMISSIONER: - - - that I understand whether or not you told the employees when the vote would be, where it would be. Now, I'm presuming, Mr Hamlet, that in order for the vote to have taken place, it wasn't through some complete random act that all the employees randomly ended up in the one place having a vote. They must have known the vote was happening.

PN97

MR HAMLET: Yes, everything was explained to them and they were explained the - - -

PN98

THE COMMISSIONER: Yes, but when were they notified - - -

PN99

MR HAMLET: On the 1st of the 9th. They were notified on the 1st of the 9th to look at the Fair Work agreement and talk about it, discuss it, take a vote on it. If they're happy with it, then Kevin to tell us. I don't think it's my place to be standing in the room watching them.

PN100

THE COMMISSIONER: Yes. Sorry, I'll just take you back a step.

PN101

MR HAMLET: Yes.

PN102

THE COMMISSIONER: I'm not asking you to be in the room. I'm not saying that you needed to be in the room. I understand why you take that view and I completely respect that view, Mr Hamlet. That's fine. What I'm trying to get to is I have to be satisfied that you told them that there would be a vote, that you told them what day it would be on - - -

PN103

MR HAMLET: No, I didn't specify the date because they all had to look at it and decide when - - -

PN104

THE COMMISSIONER: Well, how did they know when to have a vote?

PN105

MR HAMLET: They talked about it themselves.

PN106

THE COMMISSIONER: Right.

PN107

MR HAMLET: They made that decision.

PN108

THE COMMISSIONER: Yes. Look, I understand that.

PN109

MR HAMLET: I can't say to them, "You've got to read this and you've got understand it, and you've got to vote tomorrow." That's not something - that's not feasible.

PN110

THE COMMISSIONER: Well, I just have to put it to you, Mr Hamlet, that the problem is I have to be satisfied that you or someone representing you - it might have been Mr Smith. That's okay if it was Mr Smith. If Mr Smith said to them - and Mr Smith attests to this, for example, that he said, "Look, everybody, I'm telling you we're going to have a vote about this agreement. We're going to have it in the lunch room next" - well, it had to be not within seven days, so he told them at least a week out, right?

PN111

MR HAMLET: Yes.

PN112

THE COMMISSIONER: "And we're going to have a vote by show of hands," right?

PN113

MR HAMLET: Yes.

PN114

THE COMMISSIONER: Well, then that's fine. That will comply with the Act, but unless there's something said - - -

PN115

MR HAMLET: Would you like to speak to Kevin? I'm not privy to that conversation, so would you like to speak to Kevin Smith?

PN116

THE COMMISSIONER: Is he there?

PN117

MR HAMLET: Yes. I can't say that that is exactly what happened, because I wasn't in the meeting.

PN118

THE COMMISSIONER: Yes.

PN119

MR HAMLET: But what has happened since the last time I talked to you or the last time I've been in contact with the Commission, is that we're running really behind on a contract and we can't start. My only other option was that I resigned all my employees from the Metal Trades Union and joined them into the CFMEU.

PN120

THE COMMISSIONER: Right.

PN121

MR HAMLET: We went to the CFMEU. They ratified an agreement straightaway and my staff start on Monday.

PN122

THE COMMISSIONER: Okay.

PN123

MR HAMLET: That's the steps that I've had to take, Commissioner Lee.

PN124

THE COMMISSIONER: Does that mean you're wanting to lodge a different agreement?

PN125

MR HAMLET: You know, I'm approaching bankruptcy. This is how serious this is. I explained this to your staff - - -

PN126

THE COMMISSIONER: Well, I think you just have to understand that anything you've got from my staff - and I understand that you may well be having difficulties. I'm very sympathetic to that, Mr Hamlet, and you'll just have to understand that I'm doing everything I can within my power to assist you in having this agreement approved; but you need to understand I will not approve it if it doesn't comply with the law.

PN127

MR HAMLET: Okay. No, that's understandable.

PN128

THE COMMISSIONER: I know that you respect that.

PN129

MR HAMLET: No, I don't expect that. I just expect to be treated fairly.

PN130

THE COMMISSIONER: Yes, that's right.

PN131

MR HAMLET: Yes.

PN132

THE COMMISSIONER: So really our key issue, I think, is just this issue of the vote and how it was dealt with. Have we got Mr Smith?

PN133

MR HAMLET: Yes, Kevin Smith is here.

PN134

THE COMMISSIONER: Mr Smith, can you hear me?

PN135

MR K SMITH: Yes.

PN136

THE COMMISSIONER: All right. Now, you are the workshop supervisor of the staff. Is that correct?

PN137

MR SMITH: That's right, yes.

PN138

THE COMMISSIONER: So you're the most senior person in the group?

PN139

MR SMITH: I am, yes.

PN140

THE COMMISSIONER: I'll just explain to you, you're now part of a hearing. Everything that you're saying is being recorded. You understand that?

PN141

MR SMITH: Yes, that's fine.

PN142

THE COMMISSIONER: I'm Commissioner Lee and I'm from the Fair Work Commission. I'm deciding whether or not to approve the agreement that has been lodged with us. Okay?

PN143

MR SMITH: Yes.

PN144

THE COMMISSIONER: Now, as part of my consideration, I'm looking at what is called an F17 form that was lodged in this matter by Mr Hamlet, the director. I've got a particular issue with the answer to question 2.5. If Mr Hamlet shows you the F17 form at question 2.5 - have you got that?

PN145

MR SMITH: Yes:

PN146

When did you notify the relevant employees of the date and place at which the vote was to occur?

PN147

THE COMMISSIONER: Yes - "and the voting method to be used."

PN148

MR SMITH: Yes.

PN149

THE COMMISSIONER: I'll just explain to you, I have to be satisfied that the employer did notify the employees of a date and place at which the vote was to occur and the method to be used. It doesn't matter what the voting method was. It matters about the date and the place - well, it matters about the date inasmuch as they needed to have at least seven days' notice of the vote occurring, but Mr Hamlet has been unable to tell me about what occurred in this regard because he left it, it seems, up to you and the employees. Now, my query of you is did you notify the employees of the date and place at which the vote was to occur?

PN150

MR SMITH: Yes, I did.

PN151

THE COMMISSIONER: When did you do that?

PN152

MR SMITH: On 7 September.

PN153

THE COMMISSIONER: You notified them on the 7th. When was the vote?

PN154

MR SMITH: Well, we voted at lunchtime.

PN155

THE COMMISSIONER: On what day?

PN156

MR SMITH: On that same day.

PN157

THE COMMISSIONER: So they weren't notified - you don't mean 7 October?

PN158

MR SMITH: No, we voted on the 7th.

PN159

THE COMMISSIONER: 7th of what? 7 October or 7 September?

PN160

MR SMITH: September.

PN161

THE COMMISSIONER: Okay. Are you sure about that?

PN162

MR SMITH: Yes. It was smoko or lunchtime - - -

PN163

MS O'REILLY: We have done it a couple of times now, because we had to change them because of the email. We had to withdraw and start again.

PN164

THE COMMISSIONER: Yes. I'm just speaking to Mr Smith for the moment, Ms O'Reilly. I'll just return to you, Mr Hamlet. You'll see the difficulty I have is that you've lodged - your evidence is that you have issued the notice of representational rights on 15 September - - -

PN165

MR HAMLET: That was in writing, yes.

PN166

THE COMMISSIONER: Yes.

PN167

MR HAMLET: We were asked to do it in writing - - -

PN168

THE COMMISSIONER: Just to be clear, unless it is in writing, then you didn't issue it. You can't issue it verbally under the terms of the legislation. Okay? So you issued the notice on 15 September. If you had the vote on 7 September - - -

PN169

MR HAMLET: Yes. The vote didn't change, you know. They were told and they still happy to continue with it the way it was. They didn't see the need to continually go over things and go over things, you know.

PN170

THE COMMISSIONER: Yes.

PN171

MR HAMLET: You're talking about asking my employees do they want a pay increase.

PN172

THE COMMISSIONER: Yes. I'll just explain to you again, Mr Hamlet, that I understand you saw it as a simple and straightforward matter, but unless the procedural steps are taken correctly, I can't approve the agreement. Now, the problem I have - or the problem you have is that if you put out the notice of representational rights on 15 September, but you had already had the vote, according to Mr Smith, on 7 September - that's right?

PN173

MR HAMLET: Well - - -

PN174

THE COMMISSIONER: Is that right?

PN175

MR HAMLET: Yes, but we had already given it to them verbally and then we were told we had to issue it in writing, so we had to issue it in writing and that didn't change their mind.

PN176

THE COMMISSIONER: No, that might be right, but - - -

PN177

MR HAMLET: Why would that change their mind?

PN178

THE COMMISSIONER: That's not the question. The question is whether or not the procedural steps were taken under the agreement. I'll just be clear. If the vote was taken and the only vote that has been had was taken before a written notice of representational rights was put out, then I won't be able to approve the agreement; if those are the facts. Are those the facts?

PN179

MR HAMLET: Those are the facts.

PN180

THE COMMISSIONER: Yes.

PN181

MR HAMLET: Okay. I think we will just forget about it and we won't worry about it. It's much easier to deal with the union.

PN182

THE COMMISSIONER: Well, in any case if you do want to make an application for approval of an agreement, it still has to be approved by us. I'm just ruling on this particular application. On the basis of what you've put to me, which is that the vote took place on 7 September which was before the notice of representational rights was issued, then it's not possible for me to approve the agreement as - - -

PN183

MR HAMLET: Well, we're not in a position now because we will - what do I do now, Commissioner Lee? Do I put off the staff?

PN184

THE COMMISSIONER: I can't assist you with that. I can only make a determination as to whether or not I'll approve the agreement. On the basis of what you've put to me, I'm not in a position to be able to approve it - - -

PN185

MR HAMLET: Okay. Thank you. Well, I'll just - how do we go about doing one without staff?

PN186

THE COMMISSIONER: Just wait until I've finished speaking, Mr Hamlet.

PN187

MR HAMLET: Okay.

PN188

THE COMMISSIONER: On the basis that the representational rights notice was put out after the vote had taken place. On that basis, I'm going to dismiss the application for the agreement.

PN189

MR HAMLET: Okay. Well, I want advice from you now - - -

PN190

THE COMMISSIONER: I don't give advice.

PN191

MR HAMLET: I'm a taxpaying Australian, excuse me.

PN192

THE COMMISSIONER: This matter is - - -

PN193

MR HAMLET: How do I go about - no, I need an answer from you, because you're the Commissioner and you make the decision. How do I go about - - -

PN194

THE COMMISSIONER: Mr Hamlet, you'll listen to me. If you wish to continue to speak to me in the way you're speaking to me now, I'm not happy about that. You need to understand that I sit as a Commissioner in these matters. I make decisions according to the law. I'm sorry that your application has been dismissed, but on the basis of what you have put to me in the hearing this afternoon, I can't approve it. Now, that concludes this particular hearing.

PN195

I can say to you that there are a range of sources of advice about how to make an application for approval of an agreement. There is a great deal of information on our web site. I'll have my associate send to you a link to that, as well as information about employer organisations or other sources of information who may be able to assist you if you make a further application. Okay?

PN196

MR HAMLET: I don't think I'll have any staff, Commissioner.

PN197

THE COMMISSIONER: Well, I can only offer to provide you information that will assist you in the future, Mr Hamlet. All right?

PN198

MR HAMLET: Thank you.

PN199

THE COMMISSIONER: That concludes the hearing. Thank you.

PN200

MR HAMLET: Goodbye.

ADJOURNED INDEFINITELY [2.26 PM]