PN1

THE DEPUTY PRESIDENT: Yes, good morning to you, Mr Minervini, you're appearing for the applicant?

PN2

MR MINERVINI: Yes.

PN3

THE DEPUTY PRESIDENT: Yes, good morning.

PN4

MR MINERVINI: Good morning, Commissioner.

PN5

THE DEPUTY PRESIDENT: And Ms Charlson, you're appearing for the CFMMEU?

PN6

MS CHARLSON: Yes, if the Commissioner pleases.

PN7

THE DEPUTY PRESIDENT: All right.

PN8

I've listed this matter to deal with an application by the Union, for it to be heard in connection with the application by the applicant, for the approval of an enterprise agreement. I note there was some correspondence that was provided to my Chambers by the application yesterday, responding to correspondence from the CFMMEU, presumably to it, of 4 March 2022, which I've not seen.

PN9

So Ms Charlson, what's the position so far as the Union's application is concerned?

PN10

MS CHARLSON: Thank you, Deputy President. Deputy President, the Union did write to the applicant on 4 March and sought undertakings that go to the coverage of the proposed Agreement. Specifically, we asked for an undertaking that the proposed Agreement doesn't cover, and will not cover, any employee who falls within the coverage of the CFMMEU, or has been covered by a number of named enterprise agreements, or any successor to those named enterprise agreements.

PN11

The respondent, instead of the providing the undertaking sought, has provided this correspondence, which we understand has also been forwarded to Chambers. We've considered that correspondence and we are of the view that if that correspondence is read on to the Commissioner's record, it does satisfy our concerns about whether this particular instrument could, for want of a better word, encroach upon other enterprise agreements, and enterprise agreements which will have to be renegotiated in the near future.

PN12

May I read the correspondence on to the record, Deputy President?

PN13

THE DEPUTY PRESIDENT: It might short-circuit things if I simply mark the correct as an exhibit.

PN14

MS CHARLSON: It would do. Thank you, Commissioner. And on behalf of the commitment that the applicant has given ‑ ‑ ‑

PN15

THE DEPUTY PRESIDENT: So before you go on, is there some concern that there's some ambiguity about the coverage of the Agreement?

PN16

MS CHARLSON: Deputy President, we've sought the undertakings for the avoidance of doubt.

PN17

THE DEPUTY PRESIDENT: Well, just on ‑ ‑ ‑

PN18

MS CHARLSON: We note that ‑ ‑ ‑

PN19

THE DEPUTY PRESIDENT: Sorry, just let me bring up the Agreement and perhaps you can talk me through the issue.

PN20

MS CHARLSON: Yes.

PN21

THE DEPUTY PRESIDENT: Just bear with me.

PN22

MS CHARLSON: Sorry, I beg your pardon, I'm just going to close my door to try and prevent some of that background noise.

PN23

THE DEPUTY PRESIDENT: That's all right.

PN24

MS CHARLSON: Clause 1, I believe, goes to coverage, Deputy President.

PN25

THE DEPUTY PRESIDENT: Just bear with me.

PN26

Yes, I have that now. Yes.

PN27

MS CHARLSON: Clause 1 says that:

PN28

Employees covered will be those referred to in schedule 1 who are employed at Freo Group branches and/or completing general services, maintenance and projects works throughout Australia.

PN29

And the classifications are contained at schedule 1. We were just a little bit concerned about possible ambiguity in terms of the wording of 1.2.2. We did not in our ‑ ‑ ‑

PN30

THE DEPUTY PRESIDENT: Is that because of the reference to 'Freo Group branches'?

PN31

MS CHARLSON: Yes. And also there's no definition of - I'll just load it again, of what constitutes 'general services, maintenance and project works throughout Australia', so we were just a little bit worried that there might be an argument.

PN32

We weren't overly concerned, but we just wanted to clarify the matter so that there was no doubt in the future, and there was no unnecessary contest. We did note that in the Employer Declaration, the Form F17 filed by the applicant, I think it was at item 4, the applicant says that:

PN33

The maintenance and general services employees who support the mobile plant hire operations and operationally distinct and are not covered by other enterprise agreements or classifications elsewhere in the business, with the exclusion of some in Western Australia.

PN34

We have four enterprise agreements with the Freo Group, and they are named in my correspondence. Some other states also have enterprise agreements with Freo Group, some are with WGC Crane Group Proprietary Limited, and also Global Cranes Proprietary Limited, which are part of the Freo Group but don't constitute Freo Group Propriety Limited.

PN35

The four New South Wales agreements are about to be renegotiated, and we just wanted to make completely sure that there was no question in anyone's mind that this Agreement could, so to speak, encroach on the coverage of any of those enterprise agreements. Given that the respondent's correspondence specifically states that the maintenance and general service division is not covered by other agreements or classifications, we're satisfied that there's no intention by the applicant to say that employees covered by the other agreements are now covered by this agreement.

PN36

THE DEPUTY PRESIDENT: Yes.

PN37

Well, for the purposes of completeness, Ms Charlson, so that there's a complete record of the discussions between you and Freo Group Proprietary Limited, would you mind sending me a copy of that correspondence, and what I'll do, subject to hearing from the applicant, is to mark the two documents as an exhibit, and I'll mark them as exhibit 1 for the purposes of these proceedings.

PN38

MS CHARLSON: Of course, Deputy President.

PN39

THE DEPUTY PRESIDENT: Mr Minervini, do you have any objection to that course?

PN40

It seems to have resolved ‑ ‑ ‑

PN41

MR MINERVINI: That's fine, no.

PN42

THE DEPUTY PRESIDENT: All right.

PN43

All right. Well, Ms Charlson, if you are content with that, if you now no longer press the Union's application to be heard ‑ ‑ ‑

PN44

MS CHARLSON: Deputy President, on the basis that the understanding and the commitments given by the applicant, we no longer seek to be heard.

PN45

THE DEPUTY PRESIDENT: Yes, all right.

PN46

Well, I'll mark, once I receive a copy of the correspondence, I'll mark that, together with the reply on 9 March 2022 as exhibit 1.

EXHIBIT #1 CORRESPONDENCE, AND REPLY, BETWEEN CFMMEU AND FREO GROUP PROPRIETARY LIMITED, 9 MARCH 2022

PN47

All right.

PN48

Well, that, Ms Charlson, concludes your interest in these proceedings, so I'm going to ask you to leave the (indistinct), I've got some other matters that I need to raise with the applicant about the Agreement.

PN49

MS CHARLSON: Yes, Deputy President. May I ask you, is it possible for us to be provided with a transcript of today's directions hearing?

PN50

THE DEPUTY PRESIDENT: Yes.

PN51

All right. I'll arrange for it to be ordered and sent through, at least, that part of it, up to now, for the purposes of the transcript, and the rest of it, obviously, I won't send you.

PN52

MS CHARLSON: Thank you kindly, Deputy President.

PN53

THE DEPUTY PRESIDENT: Yes, all right, thank you.

PN54

MS CHARLSON: (Indistinct).

PN55

THE DEPUTY PRESIDENT: Thank you.

PN56

You're excused. Thank you, Ms Charlson.

PN57

I was going to cause correspondence to be sent to you to raise these two issues, they're not of any particular great significance, but they'll assist in my finalising your application. Since we're here, I thought I may as well raise them in person, if that's okay.

PN58

MR MINERVINI: Yes, thank you.

PN59

THE DEPUTY PRESIDENT: I don't expect you necessarily to answer subsequent, you might want to have a discussion and think about the things that I'm going to raise and respond. But we'll save some time if I raise them now.

PN60

Look, there were two matters. The first is this. Clause 3 of the Agreement, let me just find it, just a second.

PN61

MR MINERVINI: Definitions?

PN62

THE DEPUTY PRESIDENT: Yes. It contains a definition of continuous shift worker.

PN63

And this is the definition for the purposes of the NES, so that, as you'll understand, a person who meets this definition will be entitled to additional weeks leave, under the NES. Section 196 of the Act provides that:

PN64

The section applies if an employee's covered by an enterprise agreement, and a Modern Award that's in operation, and covers the employee, defined and describes the employee as a shift worker for the purposes of the NES.

PN65

So the two relevant Awards, the Manufacturing Award and the Road Transport Award, which cover employees who are going to be covered by this Agreement, that's so? Yes?

PN66

MR MINERVINI: Yes.

PN67

THE DEPUTY PRESIDENT: They contain a definition of shift worker for the purposes of the NES and so that an employee who's a shift worker, for the purposes of those Awards, is covered by this agreement and therefore, that section's engaged.

PN68

And what I'm required to be satisfied about is that the Agreement defines and describes the employee as a shift worker for the purposes of the NES, that is, the same employee in the same circumstances.

PN69

Now, your definition of continuous shift worker, for the purposes of the NES, is that the person be a seven-day shift worker, who is regularly rostered to work Saturdays and public holidays. And then you add these additional words:

PN70

Where shifts are continuously rostered for 24 hours a day, seven days a week.

PN71

Those additional words are not contained in the Award, so what you're doing is adding an additional element, which is not in the Award, which disadvantages those employees. And so I can't be satisfied that there's a definition, relevantly, for the purposes of section 196.

PN72

That could be rectified by simply providing me a written undertaking which is to the effect that the definition of continuous shift worker, in the Agreement, will not include the words:

PN73

Where the shifts are continuously rostered 24 hours a day for seven days a week.

PN74

MR MINERVINI: Yes.

PN75

THE DEPUTY PRESIDENT: You'll have to do that in writing.

PN76

MR MINERVINI: Yes. No, no, we're ‑ ‑ ‑

PN77

THE DEPUTY PRESIDENT: Understand that.

PN78

So once I receive that, that aspect of it will be fine.

PN79

The other matter is really just drawing something to your attention, and doesn't require any action, but I thought you should be made aware of this. Clause 19.12, provides that:

PN80

The employer can reconcile and deduct, from any termination payments, any debts that the employee incurs.

PN81

A couple of things that you need to be aware of about that. That provision is inconsistent with section 324(1), which limits the circumstances in which deductions can be made, and that's only where the employee is authorised as inviting the employer to do so.

PN82

Secondly:

PN83

Where such a deduction would involve holding, for example, accrued annual leave that's payable on termination, that would be inconsistent with the National Employment Standards, which would require you to pay that amount out.

PN84

Now, that part of it is rectified because you've got an NES precedent clause in your Agreement, and so I don't need an undertaking to fix that element of it. I'm content that the NES precedent clause will require you to pay the amount without deduction, but it's that additional element, so for example, if there are outstanding wages or some other things that aren't NES related, that are paid on termination, and you want to deduct them, before you do so, you'll need the employee to agree in writing, all right?

PN85

MR MINERVINI: Yes.

PN86

THE DEPUTY PRESIDENT: Otherwise, you won't be able to rely on the clause.

PN87

MR MINERVINI: Yes.

PN88

THE DEPUTY PRESIDENT: I'm just drawing those to your attention, they don't need any action, but you should keep that in mind.

PN89

So they only thing that I require from you is an undertaking with respect to the continuous shift worker definition, by deleting those words. Everything else seems fine, I've had the opportunity to review it, and I was going to write to you in those terms immediately before I received the correspondence from the Union, wanting to be heard, so I thought I'd hold off and see whether they had some other issues, but they, and those have been clarified.

PN90

So it's the only issue. Get those undertakings sent to my Chambers as soon as practicable, and I then will be satisfied that the Agreement meets all of the statutory requirements, and I'll approve it.

PN91

All right.

PN92

MR MINERVINI: Thank you very much, sir. We'll do that.

PN93

THE DEPUTY PRESIDENT: All right.

PN94

Very good, have a good day.

PN95

MR MINERVINI: Thank you.

PN96

THE DEPUTY PRESIDENT: We're adjourned, thank you.

PN97

Look, I'm going to order the transcript, and I'm going to send it to the Union.

PN98

MR MINERVINI: Yes.

PN99

THE DEPUTY PRESIDENT: But only that part of you which concerns which concerns it, they're not involved otherwise.

PN100

MR MINERVINI: Yes.

PN101

THE DEPUTY PRESIDENT: All right, thank you.

PN102

MR MINERVINI: That's great.

PN103

THE DEPUTY PRESIDENT: Mr Associate, would you order the transcript, please?

PN104

THE ASSOCIATE: Yes, Deputy President.

PN105

THE DEPUTY PRESIDENT: Thank you.

PN106

MR MINERVINI: Thank you.

PN107

THE DEPUTY PRESIDENT: All right.

PN108

Have a good day, we're adjourned.

PN109

MR MINERVINI: Thank you, same to you.

ADJOURNED INDEFINITELY [12.18 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 CORRESPONDENCE, AND REPLY, BETWEEN CFMMEU AND FREO GROUP PROPRIETARY LIMITED, 9 MARCH 2022...................................................... PN46