AG2003/350, Transcript of Proceedings [2003] AIRCTrans 4445 (3 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2003/350

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH by
Silver Chain Corporate Services Pty Ltd
(ACN No 066 565 419) as trustee for the
Silver Chain Foundation Trust,
re change of trading name

PERTH

10.07 AM, FRIDAY, 19 SEPTEMBER 2003

PN1

THE DEPUTY PRESIDENT: Mr Blackburn, leave is granted for you to appear on behalf of Silver Chain Incorporated Services Pty Limited. I have on file, which you have provided, a statutory declaration by Mr Bradshaw, who is the Director of Silver Chain Corporate Services, detailing the circumstances that exist and the reason behind the request for a cancellation or termination of the agreement. Do you have anything you wish to add?

PN2

MR J. BLACKBURN: No thank you, your Honour.

PN3

THE DEPUTY PRESIDENT: The only one issue that I have perhaps, Mr Blackburn, is a requirement on me in section 170MH, and assertions that I might be making with respect to those requirements and in particular 170MH(2), the taking of steps to obtain the views of persons bound by the agreement about whether it should be terminated. Now, I have taken and I have assumed that the views of those persons bound by the agreement were expressed by way of their participation in the ballot for the agreement that was established and in knowledge that by establishment of that agreement that this agreement that is being sought to be terminated, that would be the sequence of events. Am I correct in assuming that?

PN4

MR BLACKBURN: I would probably put it slightly differently in that this agreement obviously applied to this applicant, which is not Silver Chain. This applicant is the Silver Chain Corporate Trust, Corporate Services Pty Limited.

PN5

THE DEPUTY PRESIDENT: Yes. Yes.

PN6

MR BLACKBURN: And only then applied to Silver Chain by transmission so it had a dual effect, if you like, that continues to apply to this applicant and then it went off and applied to Silver Chain by transmission. Now, as far as those employees of Silver Chain are concerned, they had a - they were part of a subsequent ballot for the new Silver Chain Agreement and I would submit that insofar as this access agreement applied to those employees by transmission, once the new agreement was made, it effectively terminated - - -

PN7

THE DEPUTY PRESIDENT: It displaces the operation of this agreement with respect to those employees.

PN8

MR BLACKBURN: That is right. So those employees are not bound by this agreement.

PN9

THE DEPUTY PRESIDENT: I see.

PN10

MR BLACKBURN: And then that takes us to the position that - - -

PN11

THE DEPUTY PRESIDENT: Therefore I don't have to - - -

PN12

MR BLACKBURN: Well, there is no one bound by this agreement except for, in our submission, except for Silver Chain Corporate Services Pty Limited.

PN13

THE DEPUTY PRESIDENT: So there is no need to obtain their views?

PN14

MR BLACKBURN: In our view, yes, that is right.

PN15

THE DEPUTY PRESIDENT: I see.

PN16

MR BLACKBURN: And the other matter that arises out of 170MH is a requirement that the nominal expiry date of the access agreement passed and it did that on 29 June 2003.

PN17

THE DEPUTY PRESIDENT: Yes. Yes. And it is not contrary to the public interest.

PN18

MR BLACKBURN: Well, no, we say not.

PN19

THE DEPUTY PRESIDENT: Yes. Okay. Well, on that basis I will terminate the agreement and an order will issue to that effect and the paperwork for that will flow in due course, Mr Blackburn. Is there anything further you wish to add?

PN20

MR BLACKBURN: No, thank you, your Honour.

PN21

THE DEPUTY PRESIDENT: Okay. Thank you. This matter is adjourned.

ADJOURNED INDEFINITELY [10.11am]