AG2002/5709, Transcript of Proceedings [2003] AIRCTrans 1646 (1 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT10346

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

AG2002/5709
AG2002/6709

APPLICATIONS TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Application under section 170MH of the Act
by Export Meat Packers Pty Limited concerning
the cessation of meat processing operations

Application under section 170MH of the Act
by Export Meat Processors Pty Limited for
termination of the P and R Meats and the
Australasian Meat Industry Employees Union
Victorian Meat Industry Boning Agreement 1998

MELBOURNE

10.25 AM, TUESDAY, 15 APRIL 2003

AG2002/5709 continued from 10.12.02
AG2002/6709 continued from 13.1.03

PN1

MR O'GRADY: I appear on behalf of both Export Meat Packers and Export Meat Processors. I think leave has been granted previously in both matters.

PN2

THE COMMISSIONER: Yes, thanks, Mr O'Grady. The union is not present; do you anticipate them attending?

PN3

MR O'GRADY: We did anticipate that they would be here. They had notice of the application, Commissioner, and there was a conversation yesterday between representatives of the company and representatives of the union, in particular Mr Davey, the State Secretary. Mr Davey said that he wasn't proposing to come. The absence of the union, we say, Commissioner, probably doesn't matter in that the union by terms of a deed as between the union, the company and others - - -

PN4

THE COMMISSIONER: Yes, I note that from the affidavit.

PN5

MR O'GRADY: From the affidavit material.

PN6

THE COMMISSIONER: Look, I think just in case, we might adjourn briefly. I will have my Associate contact them to - I have had occasions before where people haven't turned up and there has been a problem.

PN7

MR O'GRADY: Okay, Commissioner, I am comfortable with that.

PN8

THE COMMISSIONER: Given that I am obliged to ascertain the views of the people covered by the agreement, whilst I can rely on what Mr Cabral has said, I think for completeness we will make contact with the union and just establish that they are happy for me to go ahead on that basis.

PN9

MR O'GRADY: Very well, Commissioner.

PN10

THE COMMISSIONER: The proceedings will adjourn briefly.

SHORT ADJOURNMENT [10.37am]

RESUMED [10.43am]

PN11

THE COMMISSIONER: Mr O'Grady, we have attempted to make contact unsuccessfully. I note from the file that the AMIEU has been advised of today's proceedings in respect to both matters, and in those circumstances I intend to proceed.

PN12

MR O'GRADY: If the Commission pleases.

PN13

THE COMMISSIONER: Now, I think it might be appropriate to join these two matters; do you agree?

PN14

MR O'GRADY: I think that is appropriate, Commissioner, I am happy for that to be done.

PN15

THE COMMISSIONER: I so direct.

PN16

MR O'GRADY: If the Commission pleases. Perhaps if I start by tendering an affidavit which is sworn by Pierre Gilbert Cabral earlier today. A copy had been provided to you earlier, Commissioner.

PN17

THE COMMISSIONER: Yes. I will mark that as exhibit - I think it is going to be better if I mark it as an entirely new exhibit and I will - - -

PN18

MR O'GRADY: That might be advisable, Commissioner. I am not sure of the number of the exhibits in either matter before now.

PN19

THE COMMISSIONER: Well, there is numbering in both of the previous matters, all of which is different, so I will mark it as exhibit A.

EXHIBIT #A AFFIDAVIT OF PIERRE GILBERT CABRAL

PN20

MR O'GRADY: If the Commission pleases. The position is this, Commissioner; the circumstances have changed somewhat since both of these applications were filed with the Commission, and the applications now proceed by way of consent, at least as between the employers bound by the two agreements and the AMIEU. Perhaps the best starting point, Commissioner, is to take you to the very handy checklist of considerations which was set out by Munro J in Joy Manufacturing, and I will have a copy of that decision handed to you, Commissioner. The checklist appears at paragraph 25, Commissioner.

PN21

THE COMMISSIONER: Yes.

PN22

MR O'GRADY: Essentially it is that the application has to be made by an eligible party, that there be an existing certified agreement, the term of which has expired. The Commission obtains the views of persons bound by the agreement and, upon obtaining those views, considers whether termination of the agreement is contrary to the public interest, and if no such finding is made, the Commission must order the termination of the agreement.

PN23

The first three of those matters are quite straightforward, Commissioner. The eligible parties in the two applications are EM Packers, who is a party to the EM Packers Agreement, and EM Processors which is bound by the P and R Agreement by reason of the operation of section 170MB of the Act as a successor. Both agreements have passed their nominal expiry date. The EM Packers Agreement was certified on 15 December 1999 and had a nominal expiry date of 1 December 2000, and the P and R Agreement was certified on 28 April 1998 and has a nominal expiry date of 5 December 1999, and naturally, Commissioner, both agreements continue in existence by reason of section 170LX of the Act.

PN24

So it is then incumbent upon the Commission to take the steps it considers appropriate to obtain the views of the persons bound by the agreement. In respect of the EM Packers Agreement that is, of course, EM Packers, the AMIEU and the employees by reason of clause 1.2 paragraph (b) of that agreement. It is a similar situation in relation to the EM Processors Agreement, too, Commissioner, it is the company, the union and the employees, and the clause number is the same, 1.2(b).

PN25

So we say that by making the application, the position of the companies is clear. You will see from the affidavit of Mr Cabral that the union consents to the orders pursuant to a deed of settlement in relation to proceedings in other matters. The proceedings, you will recall, Commissioner, were I think hanging over the head of the parties, at least in relation to the EM Processors matters when they were last before you at directions.

PN26

In terms of the employees, the remaining employees, Commissioner, are all employees who are on WorkCover. There are no operations at either company and you will see that there is no intention of resuming operations. The affidavit material of Mr Cabral attests to the fact that the union has represented the interests of the employees in relation to matters arising under the agreements, and we say that that is a sufficient basis upon which you can conclude that the union is capable of representing the interests of the employees, and that is the appropriate means by which you can obtain the views of the employees.

PN27

Now, that has been the case - or the union's view has been used as the vehicle to obtain the views of the employees on a number of occasions in relation to various agreements, Commissioner.

PN28

The next step in the process, Commissioner, is that the Commission considers that it is not contrary to the public interest to terminate the agreement and, Commissioner, it is submitted that on the basis of the material as set out in the affidavit of Mr Cabral that it is appropriate to come to the view that it is not contrary to the public interest to terminate the agreement. You will recall, Commissioner, that it is a, sort of, a negative test. The flow is in favour of terminating the agreements unless it can be established that it is contrary to the public interest to do so.

PN29

THE COMMISSIONER: His Honour seems to put that test the other way round, doesn't he?

PN30

MR O'GRADY: Sorry?

PN31

THE COMMISSIONER: His Honour seems to put that test the other way round in his steps.

PN32

MR O'GRADY: Whereabouts are you there, Commissioner?

PN33

THE COMMISSIONER: Step 5 versus 170MH.

PN34

MR O'GRADY: Sorry, Commissioner?

PN35

THE COMMISSIONER: Step 5 of his Honour's - no, no, in - - -

PN36

MR O'GRADY: Sorry, in paragraph 25?

PN37

THE COMMISSIONER: Yes.

PN38

MR O'GRADY: Well, it is really the - it is steps 5 and 6 taken together, I suppose, Commissioner.

PN39

THE COMMISSIONER: Yes.

PN40

MR O'GRADY: In terms of - - -

PN41

THE COMMISSIONER: But if the Commission makes a finding that it is contrary, then you don't terminate, but if you don't make a finding - - -

PN42

MR O'GRADY: You must terminate.

PN43

THE COMMISSIONER: - - - you must terminate, yes.

PN44

MR O'GRADY: That is right.

PN45

THE COMMISSIONER: That doesn't seem to be the way it is - - -

PN46

MR O'GRADY: I think it is the double negative that always confuses people, Commissioner.

PN47

THE COMMISSIONER: Yes. Well, I guess that is why he has put the five steps.

PN48

MR O'GRADY: There are many double negatives in this Act, that is for sure. In terms of that - - -

PN49

THE COMMISSIONER: The result is the same, yes.

PN50

MR O'GRADY: The result is the same, and there are other decisions. I don't think I need to take you to those, Commissioner - - -

PN51

THE COMMISSIONER: No.

PN52

MR O'GRADY: - - - but you know the lie of the land. In those circumstances, it is submitted that it is appropriate to terminate the agreements, Commissioner.

PN53

THE COMMISSIONER: Thanks, Mr O'Grady.

PN54

These matters are applications pursuant to section 170MH to terminate two agreements. The first agreement is an agreement titled Export Meat Packers Proprietary Limited and the Australasian Meat Industry Employees Union Victorian Meat Industry Boning Agreement 1998, an agreement certified on 15 December 1999 with a nominal expiry date of 1 December 2000. The second agreement is an agreement known as P and R Meats and the Australasian Meat Industry Employees Union Victorian Meat Industry Boning Agreement 1998, an agreement certified on 28 April 1998 with a nominal expiry date of 5 December 1999.

PN55

Both of those agreements are certified agreements as defined by the Act, and the application before me is made by EM Packers Proprietary Limited in the case of the EM Packers Agreement, and EM Processors - or Export Meat Processors Proprietary Limited - and that should have read Export Meat Packers in that earlier reference - in respect of the P and R Meats Agreement, they being successors pursuant to section 170MB of the Act to P and R Meats Proprietary Limited, the original party to the agreement. As I have indicated, both agreements have passed their nominal expiry date.

PN56

The Commission is bound, pursuant to section 170MH(2), to obtain the views of the persons bound by the agreement about whether it should be terminated. Clearly the companies, who are both parties, one directly and the other by succession, to the agreements have the view that the agreements should be terminated, and on the basis of the affidavit of Mr Pierre Gilbert Cabral, which is exhibit A in these proceedings, I note that the Australasian Meat Industry Employees Union has always had a high level of membership amongst the employees covered by the Export Meat Packers Agreement and the P and R Meats Agreement.

PN57

That is, that organisation, the AMIEU, represented the interests of EM Processors employees in Federal Court proceedings and on behalf and with the agreement of them negotiated an agreement that is contained in a deed, and within that deed the AMIEU agreed to consent to these applications to terminate both of the agreements. On that basis, I believe that I have taken appropriate steps to obtain the views of the persons bound by the agreement and note that there is consent to the termination of the agreement.

PN58

I note also from Mr Cabral's statement that both companies do not intend to - it is not true that both - I note that EM Packers is no longer operating and has no intention of resuming boning operations.

PN59

MR O'GRADY: In relation to EM Processors it is at the end of paragraph 8 of the affidavit.

PN60

THE COMMISSIONER: Yes. And also I note that EM Processors is no longer operating and has no intention of resuming boning operations. They are relevant matters. I note also that the only employees of both companies are those currently on WorkCover. The EM Packers employees are set out in annexure PGC2 to exhibit A, and those employees of Export Meat Processors in receipt of WorkCover entitlements are set in annexure PGC3 to exhibit A.

PN61

I note also from that affidavit that arrangements have been made that they will cease employment when their entitlement to WorkCover payments have ceased and they will then receive the termination entitlements that are at least equivalent to the entitlements on redundancy under the terms of the agreements and that arrangements have been made to secure those payments pending their termination.

PN62

I consider those matters and am satisfied that termination of the agreement is not contrary to the public interest. That being so, I must order that the agreements be terminated and I so order. That order will be reduced to writing and provided to the parties in due course.

PN63

MR O'GRADY: If the Commission pleases.

PN64

THE COMMISSIONER: Is there anything further, Mr O'Grady?

PN65

MR O'GRADY: Nothing further from the companies.

PN66

THE COMMISSIONER: These proceedings are adjourned to a date to be fixed. Thank you.

PN67

MR O'GRADY: If the Commission pleases.

ADJOURNED INDEFINITELY [10.58am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A AFFIDAVIT OF PIERRE GILBERT CABRAL PN20