Witness Statement of Matthew Allan McCann

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c,.I
Alex Grayson
From;
Sent:
To;..
Subject:
Follow Up Flag:
Flag Status:
Dave Broadley <[email protected]>
Wednesday, 25 June 2014 6:50 PM
Matt McCann
Re: Interim Assessment - Fair and Lawful Building Sites Code 2014
[SEC= UNCLASSIFIED}
Follow up
Flagged
I'll call you in the morning mate.
Dave Broadley
State Secret ary
NSW Plumbers Union
On 25 Jun 2014, at 6:02pm, "Matt McCann" <[email protected]> wrote:
Hi John,
My position on compliance to the code has been consistent from the time you raised it in our
meeting in April in your office. That position is that t he CEPU would not inflict clauses on t he
company that would deem them to be not compliant to the code and therefore restrict them from
tendering for federally funded projects. Additionally, I have maintained since then that we should
still be able to reach an in principle agreement on the ot her matters in the agreement not effected
by the code i.e. rates of pay, redundancy pay, penalty rates. This second point seems to be the
sticking point and finally you have indicated as such in writing. As I have stated there is little point in
us concerning ourselves with the mechanic of code compliance un less we can reach. agreement on
the other matters raised, seems simple enough to me. You have failed to give a position from the
company on these matters and t his has been in abeyance for several months now. I am striving to
bargain in good faith but it seems t hat CHD are not. There has been no response offered by the
company since you got involved.
In relation to the other issues you raised;
•
1 haven't had any contact with Nikki or Joe since our meeting in your office in April. If Nikki is
unwell I am sorry to hear that, but don't for a second try and hold me responsible. Nikki's a
big girl and can stand up for herself from what I have observed. lfthe stress is work related
she should a workers comp claim against her employer.
•
I haven't visited any sites relating to CHD other than site mapping activities, sfnce my visits
earlier in the year at t he invitation of CHD.
•
I have not engaged in any coercive conduct you refer to, can you please detail what mean.
• The process has been prolonged by companies stalling and procrastinating as detailed
above.
• The employees may have voted the agreement down based on threats by t he employer that
some people would have their pay cut if they agreed to accept il. This could be seen as
coercive behaviour don't you think.
• You need to get your hearing checked, that is not what I said to you in the car park. I did
state that 1 would like an answer either way and that the company should just go and do a
non-union agreement if we could not reach agreement on the other matters. I then said if
the company chose the latter option "it would be VERY LAME". Sorry if you got that wrong
mate.
•
No, not interested in talking through the code stuff until ! get an answer to the options I
have put. These issues have been on the table longer than the code issue. That will resolve
itself.
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I think we need a circuit breaker on this matter, I suggest we go through the process of a majority
support determination with the employees. I'm happy to walk away if the result goes against the
union. The CEPU would need the opportunity to puts its case to the employees and members on the
merits of a CEPU agreement before the vote took place however, the vote would need to be
conducted by AEC or FWA secret ballot. let me know what you think.
Regards
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From: John Nikoltc [mailto:[email protected]]
Sent: Wednesday, 25 June 2014 3:46PM
To: Matt McCann
Cc: Kelly Adamcewicz
Subject: RE: Interim Assessment - Fair and Lawful Building Sites Code 2014 (SEC=UNCLASSIFIED]
Dear Matt,
We have met with CHD and until compliance with the Building and Construction Industry {Fair and
lawful Building Sites) Code 2014 can be assured, CHD is not in a position to consider other issues in
t he EBA. Code compliance and othe r serious issues relating to these negotiations are detailed
below.
Code compliance
In relat ion to yow· suggested amendments to achieve Code compliance, I can put the m to the
Department of Emplovment, but in my opinion it is unlikely that they would be accepted. That's
because section 11 of the Code states that:
(1) a code covered entity must not be covered by an enterprise agreement which includes clauses that :
(a) impose or purport to impose limits on the right of the code covered entity to manage its
business or to improve product ivity;
(b)
discriminate, or have the eff ect of discriminating against certain persons, classes of employees,
or subcontractors.
·
See:
http:ljdocs.employment.gov.au/system/files/doc/other/fair and lawful building sites code 2014
.pdf
Any preference for employees over subcontre~ctors or indeed for lock-down weekends would almost
certainly be viewed as 'discriminating against certain persons' and 'impos[ing] ... limits on the right
of the code covered entity to manage its business or to improve productivity'. Certainly, this was
the clear impression the Department of Employment gave in its advice, which 1 provided to you on
Monday 16 June 2014.
Further to mv email of 16 June 2014, could you please respond as to whether you would be able to
meet to consider necessary changes to the EBA to comply with the new procurement Code, now
that the Department of Employment has provided its advice?
Other issues
More generally, your impatience and sarcasm in relation to 'excuses' is not appreciated . More
seriously, your comment s to me in Dickson on Friday 13 June 2014, to the effect that CHD should
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eit her 'say yes' or 'say no and do a non-union EBA', but that if CHD took the latter option, it 'would
be fair game', have been noted as a clear threat to disrupt and cause economic harm to CHD.
I'm not sure how you would feel if someone threatened your livelihood, but for the record, Nikki is
considering taking stress leave due to the prolonged and coercive nature of these negotiations,
which come at a time when the plumbing industry is facing widespread redundancies and which
have continued despite the fact that CHD's employees have already rejected the CEPU's EBA.
Please let me know if you are ready to discuss Code compliance issues. However, if any further
threats (or worse) of adverse action are made, we will be forced to consider our legal remedies,
including taking appropriate action to protect Nikki's health and safety.
Kind regards,
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John Nikolic
DIRECTOR INDUSTRIAL RELATIONS
IN-HOUSE LEG AL COUNSEL
Master Builders Association of the ACT
1 Iron Knob St, Fyshwick ACT 2609
PO Box 1211, Fyshwick ACT 2609
Tel: (02) 6175 5921
Fax: (02) 6249 8374
Mob:· - [email protected]
www.mba.om .au
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Tile Information contained In tills email is industJjaJ relations advice only. It may not ckal with all of tile aspects of your specific situation and is !lQf JegaJ
or the matters relevant to your sltJ.Jatlon nave been considered. Master Builders does not accept any legal liability arising from or connected to the accUI
this email.
The Information In this email Is private and confidential and should not be distributed to any other party.
From: Matt McCann [mailto:[email protected]]
Sent: Monday, 23 June 2014 3:51PM
To: John Nikolic
Subject: RE: Interim Assessment- Fair and Lawful Building Sites Code 2014 [SEC=UNCLASSlFIED]
Hi John,
Did your meeting with CHD go ahead last Wednesday or was there another postponement; I am
waiting for dog ate my homework excuse to bob up event ually. Can you advise on where we are
please?
In relation to t he code compliance matters, the bulk of concerns are confined to the sham
contracting clause. I'm sure 1 ca n live without this clause so long as we replace it with a clause
st ating intent to promote the direct engagement of employees as a preference first and foremost
and that should the need to supplement the workforce at times of accelerated need consistent with
the needs of particular projects, then this will be source through reputable labourhire compa nies.
The ROO clause can be tweaked to something along the lines of "the company will ensure it meets
its WHS obligations to provide for the welfa re of its employees by way of affording adequate work
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life balance. The company acknowledges that to achieve this work life balance there is merit in
scheduling ROO's to coincide with public holiday long weekend, and that this will be the preference
unless particular sites require emergency plumbing services provided on those days."
Matt McCann
Recruitment Officer
Electrical Trades Union of Australia (NSW Branch)
CEPU , Electrical Trades Union Division, NSW Branch
25-27 Darfing St, Mitchell 2911 , ACT, Australia
P: (02) 6163 6603 F: (02) 6163 6667 M
E: [email protected] W: www.etunsw.com.au
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From: John Nikolic [mailto:[email protected]
Sent: Monday, 16 June 2014 10:18 AM
To: Matt McCann
Cc: Ke11y Adamcewicz
Subject: FW: Interim Assessment- Fair and Lawful Building Sites Code 2014 [SEC=UNCLASSIFIED]
Dear Matt
Please see attached the Commonwealt h Department of Employment' s assessment of the CEPU's CFMEU pattern e
advance release of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014.
We are still working through the implications, but it is clear that a number of changes to the pattern enterprise agt
code compliance.
We are meeting with CHD this week (on Wednesday) to discuss your proposal, but as discussed, working through t
best to get started. Would you be free to meet to discuss sometime next week?
Kind regards,
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John Nikolic
OtRECTOR INDUSTRIAL RELATIONS
IN-HOUSE LEGAL COUNSE L
Master Builders Association of the ACT
1 Iron Knob St, Fyshwick ACT 2609
PO Box 1211, Fyshwick ACT 2609
Tel: (02) 6175 5921
Fax: (02} 6249 8374
Mob: _ __
jnikoli«@.mba.org_.au
www.mba.org.au
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The Information contained In tllis email is industrial relations advice only. It may not daal with all of the aspects of your specific situation and is not legal
of tile matters relevant to your situation have been considered. Master Builders does not accept any legal liability arising from or connected to the accw
this email.
The Information m this emaH is private and confidential and should not be distributed to any other party.
From: PULLEN,David [mailto:[email protected]]
Sent: Friday, 13 June 2.014 3:05PM
To: John Nikolic
Subject: Interim Assessment- Fair and Lawful Building Sites Code 2014 (SEC=UNCLASSIFIED)
UNCLASSIFIED
Dear Mr Nikolic
Thank you for your email dated 30 April 2014 seeking an interim assessment of the '{Company &
CEPU ACT Enterprise Agreement 2013-2016' {the Agreement) against the requirements of the
advance release Building and Construction Industry {Fair and Lawful Building Sites) Code 2014 (the
Fair and Lawful Building Sites Code 2014). I apologise for the delay in responding.
Building and Construction Industry (Fair and lawful Building Sites) Code 2014 -Interim
Assessment- Disclaimer
The Department has undertaken an interim assessment of your draft industrial instruments for the
purposes of providing general guidance on its potential compliance with the advance release of the
Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 on the basis of the
information and representations provided by you. If the information you have provided changes, or
is inaccurate, your position in relation to compliance with the advance release Building and
Construction Industry (Fair and Lawful Building Sites) Code 2014 may be affected.
The views, advice or guidance provided by the Department do not constitute legal or commercial
advice. The Department will not be liable for any loss or damage suffered due to use of any advice,
views or guidance provided by the Department during the assessment process.
Having considered the contents of the Agreement, I would like to draw your attention to the clauses
ofthe agreement described in the table in the Attached PDF document. It is the Department's view
that these clauses are either inconsistent with the advance release Fair and Lawful Building Sites
Code, or potentially inconsistent with the Fair and Lawful Building Sites Code 2014 subject to the
practical application of these clauses.
While it is important that agreements comply with the Fair and Lawful Building Sites Code 2014, it is
equally important that the practical application of the agreement also complies. In this context,
when the Fair and Lawful Building Sites Code 2014 commences, the re-established Australian
Building and Construction Commission may undertake compliance audits to ensure that clauses of
Agreements are not implemented in such a way that results in those clauses being inconsistent with
the requirements of the Fair and Lawful Building Sites Code 2014.
The Minister intends to make a new Building Code when the Building and Construction Industry
(Improving Productivity) Bill2013 is enacted. Please be aware that the advance release Fair and
Lawful Building Sites Code 2014 may be subject to variation and may not reflect the final form of the
proposed Building Code when the Bill is enacted.
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Please note that it is intended that the scheme to be created by a new Building Code will be 'opt-in'
in nature and your compliance with the requirements contained in such a code will be entirely
voluntary. In accordance with the opt-in nature of the proposed scheme, the only consequence of
non-compliance with a new Building Code (such as the advance release Fair and Lawful Building
Sites Code) will be that you will not be eligible to tender for, or be awarded, Commonwealth funded
building work.
Please note this assessment may not apply should the workplace arrangements vary from those
provided in your request.
If you have any further questions please feel free to contact the Department of Employment's
National Code Hotline on 1300 731 293 or email [email protected]. Further information
about the Fair and lawful Building Sites Code 2014 is available at
www.employment.gov.au/buildingcode .
Yours sincerely
David Pullen
Assistant Director
Policy Team
Building Industry Policy Group
Australian Government 1 Department of Employment
Phone {02} 612 1 6910 1 Fax (02) 6276 7347
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