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AG2002/ 1048 , Transcript of Proceedings [2002] AIRCTrans 1182 (9 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883

TRANSCRIPT OF PROCEEDINGS


O/N VTO3152

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

AG 2002/ 1048 , 1049, 1050,
1051, 1052, 1053, 1054, 1055,
1056, 1057, 1058, 1059, 1060,
1061, 1062, 1063, 1064, 1065,
1066, 1067, 1068, 1069, 1070,
1071, 1072, 1073, 1074, 1075,
1076, 1077, 1078, 1079, 1080,
1081, 1082, 1084, 1085, 1086,
1087, 1088, 1089, 1090, 1223,
1224, 1225, 1226, 1255, 1256,
1257, 1266, 1267, 1268, 1270,
1271, 1272, 1273, 1274, 1275,
1276 & 1277

DETERMINATIONS OF DESIGNATED AWARD
FOR CERTIFIED AGREEMENTS UNDER
SECTION 170XF OF THE ACT

APPLICATIONS FOR CERTIFICATION OF
AGREEMENTS UNDER SECTION 170LJ OF
THE ACT

MELBOURNE

2.37 PM, MONDAY, 25 MARCH 2002

PN1

THE VICE PRESIDENT: Can I have the appearances in these matter,s please.

PN2

MR WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union.

PN3

THE VICE PRESIDENT: Thank you. And you are Mr Chung for Peter Chung Constructions, is that correct?

PN4

MR P. CHUNG: Yes, your Honour, I am, sir.

PN5

THE VICE PRESIDENT: Thank you. Subject to there being any objection I would propose to deal with all of these matters together on the basis that the agreements and the section 170XF applications are in substantially the same terms. Is there any objection to that course? No?

PN6

MR WAINWRIGHT: Your Honour, it might be that it is best to deal with the matter involving Mr Chung separately, which is AG 2002/1266.

PN7

THE VICE PRESIDENT: Certainly, I will deal with that matter and also AG 2002/1258 separately.

PN8

MR WAINWRIGHT: Yes.

PN9

THE VICE PRESIDENT: The Panna Crane and Truck Hire Sales. Well, perhaps if we deal with Mr Chung's matter first.

PN10

MR WAINWRIGHT: Well, Mr Chung has approached me here today. He is saying he has got some difficulties with the agreement, in that he is only using contractors at the moment, not direct employees. I've offered to discuss that issue with him and to adjourn today's matter until those discussions are concluded.

PN11

THE VICE PRESIDENT: Okay, does that suit you, Mr Chung?

PN12

MR CHUNG: Your Honour, that is absolutely what I discussed with Mr Wainwright from the CFMEU. Apparently, currently I've only got sub-contractors like the guys that run their own business, and I've got nothing to do with their site - their EBA and whatever, what have you not, and basically they've been paid on a quotation basis. Like, for example, when I ask them to do some - certain like - for example, carpentry framing, and they charge me on the quotation.

PN13

THE VICE PRESIDENT: Yes.

PN14

MR CHUNG: And basically, the painters and so forth, your Honour.

PN15

THE VICE PRESIDENT: So they are charging you for the work that is done as a completed job?

PN16

MR CHUNG: The work that they have performed, yes.

PN17

THE VICE PRESIDENT: Yes.

PN18

MR CHUNG: Yes. Provided I have met all the site safety requirements, I can basically mention to you that the site is not - basically, I said to Mr Marki, I'm willing to join the Union, but I have no requirement for an enterprise bargaining agreement, mainly because I have no direct employees. Mark - sorry, Wayne might want to question me on that one, regarding the direct employees, because currently they provided their own labourers, the workers, the sub-contractors have their own labourers plus, you know, they clean up after they leave. Yes.

PN19

THE VICE PRESIDENT: Okay, thank you. Well, on that basis I will adjourn the application so far as it applies to your business.

PN20

MR CHUNG: Yes. Thank you, your Honour.

PN21

THE VICE PRESIDENT: And the matter can be re-listed at the request of both parties. In relation to Panna Crane and Truck Hire Sales, we have received correspondence from them indicating that Panna Cranes will not be attending today's hearing as Vin Panna has retired from the industry and all cranes and equipment has been sold to various other parties. Do you have a copy of that, Mr Wainwright?

PN22

MR WAINWRIGHT: I have received a copy of that, your Honour.

PN23

THE VICE PRESIDENT: In that regard what - - -

PN24

MR WAINWRIGHT: Well, your Honour, upon us confirming that this Company is no longer operating, we would withdraw our application. I think it might be appropriate if we have a couple of weeks to make those investigations.

PN25

THE VICE PRESIDENT: Certainly. Well, I will provide you with a period, let us say, until Monday, 8 April, and by close of business on that day, if we haven't heard from you we will assume that you have withdrawn the application. Okay?

PN26

MR WAINWRIGHT: Yes, your Honour.

PN27

THE VICE PRESIDENT: In relation to the other matters, I will deal with the XF applications first. What do you wish to say about those, Mr Wainwright?

PN28

MR WAINWRIGHT: Your Honour, we would submit that the relevant award for the XF application is the National Building and Construction Industry Award 2000, as the work being done is primarily on-site construction work.

PN29

THE VICE PRESIDENT: Right. And do you say that that award is appropriate for the purpose of deciding whether or not the agreement passes the no-disadvantage test on the basis that it regulates terms and conditions of employment of employees engaged in the same kind of work as that of those persons under each of these agreements?

PN30

MR WAINWRIGHT: Yes, I do, your Honour.

PN31

THE VICE PRESIDENT: Thank you. I am satisfied that I should grant the application pursuant to section 170XF in relation to each of those matters. Regarding the relevant statutory test, I might run through those, and then I will come back to the out of time issue. I note that each of the applications state that they have been under division 2 of Part VIB of the Act. Are the employers party to these agreements either constitutional corporations within the meaning of section 4 of the Act or employers in Victoria within the meaning of section 494 of the Act?

PN32

MR WAINWRIGHT: Yes, your Honour.

PN33

THE VICE PRESIDENT: I note that written copies of these agreements have been submitted for certification. Are each of these agreements about matters pertaining to the employment relationship?

PN34

MR WAINWRIGHT: They are.

PN35

THE VICE PRESIDENT: Are each of these agreements in respect of a single business or part of a single business within the meaning of section 170LB of the Act being carried on by the employer party to the agreement?

PN36

MR WAINWRIGHT: Yes, your Honour.

PN37

THE VICE PRESIDENT: Does your organisation have at least one member employed in the single businesses or parts whose employment would be subject to these agreements?

PN38

MR WAINWRIGHT: Yes, we do, your Honour.

PN39

THE VICE PRESIDENT: Is your organisation entitled to represent the industrial interests of their members so employed?

PN40

MR WAINWRIGHT: We are.

PN41

THE VICE PRESIDENT: At least 14 days before any approval was given, was every person employed at the time whose employment would be subject to these agreements given a copy of or had ready access to a copy of the agreement in writing?

PN42

MR WAINWRIGHT: Yes, your Honour, that is what the employees have instructed us.

PN43

THE VICE PRESIDENT: Okay. Were any of these agreements capable of being made under section 170LL? That is, were any of them greenfields agreements?

PN44

MR WAINWRIGHT: No, your Honour.

PN45

THE VICE PRESIDENT: I note that the steps that were taken by the employer as party to these agreements to ensure that before the agreements were approved their terms were explained to all of the persons employed at the time whose employment would be subject to them. I also note what is said about the consultation process. In respect to the valid majority regarding each of these agreements, was a vote taken of the employees employed at the time whose employment would be subject to the agreements about whether they approved the agreement?

PN46

MR WAINWRIGHT: Yes, your Honour.

PN47

THE VICE PRESIDENT: Did each employee employed at that time have an opportunity to cast a vote?

PN48

MR WAINWRIGHT: Yes, your Honour.

PN49

THE VICE PRESIDENT: Were a majority of the valid votes cast in favour of approving the agreement?

PN50

MR WAINWRIGHT: Yes, your Honour.

PN51

THE VICE PRESIDENT: In relation to the no disadvantage test, would certification of these agreements result, on balance, in a reduction in the overall terms and conditions of employment of the employees covered by them?

PN52

MR WAINWRIGHT: No, it would not.

PN53

THE VICE PRESIDENT: Do each of these agreements include procedures for preventing and settling disputes between the employer and the employees whose employment would be subject to them?

PN54

MR WAINWRIGHT: They do, at clause 9 and clause 10.

PN55

THE VICE PRESIDENT: I note that each of these agreements specifies a nominal expiry date and that the nominal expiry date is not more than three years after the date on which the agreement will come into operation. In relation to termination of employment, are any provisions in any of these agreements inconsistent with a provision of division 3 of Part VIA, an order by the Commission under that division, or any injunction granted or any order made by the Court under that division?

PN56

MR WAINWRIGHT: No, your Honour.

PN57

THE VICE PRESIDENT: In relation to negotiating conduct, are there any matters under section 170LU(3) which would lead me to refuse to certify any of these agreements?

PN58

MR WAINWRIGHT: No, there is not.

PN59

THE VICE PRESIDENT: In relation to discrimination, do any provisions of these agreements discriminate against an employee whose employment will be subject to them because of or for reasons including race, colour, sex, sexual preference, age, political opinion, national extraction or social origin?

PN60

MR WAINWRIGHT: No, your Honour.

PN61

THE VICE PRESIDENT: Do any provisions of these agreements contain any objectionable provisions within the meaning of section 170LU(2A)?

PN62

MR WAINWRIGHT: No, they do not.

PN63

THE VICE PRESIDENT: No bargaining fee?

PN64

MR WAINWRIGHT: No bargaining fee clauses, no.

PN65

THE VICE PRESIDENT: Preference clauses, nothing of that nature?

PN66

MR WAINWRIGHT: No, your Honour.

PN67

THE VICE PRESIDENT: In relation to the out of time - let me just deal with those matters that are within time; that is AG Nos 2002/1223 to 1226.

PN68

MR WAINWRIGHT: If you could just give me a moment, your Honour.

PN69

THE VICE PRESIDENT: No, that is fine. So it is 1223 to 1226.

PN70

MR WAINWRIGHT: Yes, your Honour.

PN71

THE VICE PRESIDENT: 1255 to 1258, and 1266 to 1277. Those applications have all been filed within the prescribed time period, and in relation to each of those I am satisfied that the agreements meet the relevant statutory tests. I have reached that conclusion having regard to the answers you have given to the questions I have put and also to the statutory declarations filed in support of the applications. I note that in some instances the statutory declarations are incomplete, but I have had regard to the totality of the material that is before me in reaching my decision that the applications and the agreements comply with the relevant statutory tests.

PN72

In relation to the balance of the applications, most are between one and two months out of time. There are three which are significantly longer. They are AG2002/ 1048 , it is eight months out of time; AG2002/1051 is almost one year out of time; and AG2002/1090 is three months out of time. Consistent with my usual practice, I seek from you a statutory declaration indicating the reasons for the delay in each of these cases and whether there has been any significant change in the composition of the workforce. In relation to the latter point, that would obviously depend on you having some contact, either directly or through an organiser, with the relevant employer and the employer authorising you to make a particular statement on their behalf regarding the composition of the workforce.

PN73

MR WAINWRIGHT: Yes, sir.

PN74

THE VICE PRESIDENT: Where are we in relation to those matters, Mr Wainwright? Do you want a further opportunity to gather that material?

PN75

MR WAINWRIGHT: Yes. I can say to you in relation to Westcoast Windows, I did note that when it crossed my desk.

PN76

THE VICE PRESIDENT: Is that the one that was almost a year out of time?

PN77

MR WAINWRIGHT: That is eight months as you have listed it.

PN78

THE VICE PRESIDENT: Eight months, yes.

PN79

MR WAINWRIGHT: We simply hadn't received that agreement from the employer. They are down past Geelong; I am not sure what the delay was at that end.

PN80

THE VICE PRESIDENT: It is not that far away.

PN81

MR WAINWRIGHT: No, it is not, although it is ages away in some other terms. But, your Honour, just to make it clear, you have pointed out three agreements that are significantly out of time. In relation to those other agreements, are you proposing that that information - - -

PN82

THE VICE PRESIDENT: The same process, yes, I am. The reason I draw your attention to the ones that are significantly out of time is that - well, I - - -

PN83

MR WAINWRIGHT: Because they are significantly out of time.

PN84

THE VICE PRESIDENT: Yes, exactly, and I suppose I am more interested in there with - in terms of matters that are one to two months out of time, I would still seek a reason for them being out of time, but I suppose the threshold for satisfying me as to a reasonable explanation is lower than in cases where they are significantly out of time.

PN85

MR WAINWRIGHT: Yes, your Honour.

PN86

THE VICE PRESIDENT: It may also be that it is more likely, and I don't put it any higher than that, that in cases where it is significantly out of time, that there would have been a compositional change in the workforce and perhaps less likely as a general proposition.

PN87

MR WAINWRIGHT: Well, I know of some people who have been dismissed from Westcoast Windows, so they have certainly had a compositional change.

PN88

THE VICE PRESIDENT: Yes, okay. Well, I will leave it - we will provide you with the information that I have read out - - -

PN89

MR WAINWRIGHT: Yes, your Honour.

PN90

THE VICE PRESIDENT: - - - regarding the time period and we will provide you with a reasonable period to get back to us. Just bear with me for a moment. We will just go off the record.

OFF THE RECORD

PN91

THE VICE PRESIDENT: I will re-list the matters that I have referred to that were lodged outside the prescribed time period for further hearing at 1 pm, Tuesday, 23rd. The purpose in listing the applications at that time is to provide the parties pursuant to section 170LV(1)(b) with an opportunity to take action that is necessary to make the agreements certifiable, that action being the evidentiary material going to the reason for the delay and whether there has been any significant compositional change in the workforce at each of these businesses.

PN92

In the event that there is no material available in respect of any of these matters, I put the parties on notice that that may result in a decision refusing to certify the particular agreement. There being nothing further, I will adjourn until Tuesday, 23 April at 1 pm.

ADJOURNED ACCORDINGLY [2.54pm]