AG2007/557, Transcript of Proceedings [2007] AIRCTrans 278 (12 June 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16958-1

DEPUTY PRESIDENT IVES

AG2007/557

s.170MH -prereform Act - Application to terminate agreement (public interest)
Albury Demolitions Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(AG2007/557)

MELBOURNE

10.04AM, TUESDAY, 29 MAY 2007

PN1

MR A CLEARY: I seek leave to appear on behalf of Albury Demolitions Pty Limited.

PN2

THE SENIOR DEPUTY PRESIDENT: Thanks Mr Cleary. I will note, just for the purposes of the record, there is no appearance by the CFMEU, who have been notified as to this listing and are a party to the agreement that it's sought to have terminated. Yes, go ahead, Mr Cleary.

PN3

MR CLEARY: Yes, your Honour. This is an application made by Albury Demolitions Pty Limited seeking termination of the Albury Demolitions Pty Limited MBAV CFMEU Enterprise Agreement 1999/2002. It's AG810798. The nominal expiry date of the agreement was 30 November 2002.

PN4

Disregarding the Commission's duty to obtain the views of persons bound by the agreement.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MR CLEARY: We seek to terminate. As was provided with the application, there was an attachment A in the form of a memorandum of understanding that outlined the points that were communicated to the employees regarding the company seeking to terminate the agreement.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, do you wish to tender that particular document? There's also another document that you may wish to tender, the employee - - -

PN8

MR CLEARY: Yes. Did you want me to pass that over?

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 DOCUMENT ENTITLED "ATTACHMENT A MEMORANDUM OF UNDERSTANDING"

PN10

THE SENIOR DEPUTY PRESIDENT: Go ahead, Mr Cleary.

PN11

MR CLEARY: Yes. So your Honour the employees have been consulted regarding the termination. That's set out in item 5 of the application and further, item 6 of the application informs the employees of their right to attend to those hearings, should they choose to do so.

PN12

THE SENIOR DEPUTY PRESIDENT: Presumably they were notified of the date and time of this hearing?

PN13

MR CLEARY: They were, yes.

PN14

THE SENIOR DEPUTY PRESIDENT: In accordance with the directions. Yes, thanks, Mr Cleary.

PN15

MR CLEARY: I contacted the company yesterday and spoke to the managing director, Barry Walker, jus to receive an update on the composition of the workforce. He will be providing a statutory declaration to attest that there has been no change in the composition of the employees of the company covered by this agreement. I should have that to provide to the Commission later in the week.

PN16

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN17

MR CLEARY: In the matter of the industrial instrument to apply, should the Commission see fit to order termination of the agreement, the National Building and Construction Industry Award 2000 will provide a safety net for the employees and probably the last thing I wanted to mention was that, as is stated in item 4 of the application, there's an undertaking provided by the company not to reduce the wages and conditions currently contained in the agreement and enjoyed by the employees.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. I think it's item 5.

PN19

MR CLEARY: Sorry, item 5. Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes.

PN21

MR CLEARY: I beg your pardon. I have got item 4 on the application.

PN22

THE SENIOR DEPUTY PRESIDENT: Item 4 on the memorandum of understanding.

PN23

MR CLEARY: Sorry. I beg your pardon, I was referring to the application.

PN24

THE SENIOR DEPUTY PRESIDENT: I see. The memorandum of understanding also provides an undertaking. That is exhibit A1 provides an undertaking at item 5.

PN25

MR CLEARY: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR CLEARY: Yes, so on those grounds, your Honour, we would say it's not contrary to the public interest and ask that the Commission by order terminate the agreement.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. You said that there would be a statutory declaration provided later this week, Mr Cleary. What was that again?

PN29

MR CLEARY: Yes, your Honour. There will be a statutory declaration just attesting that there's been no change in the composition of the workforce. The attachment A has 12 employees names and signatures.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR CLEARY: There will be a status quo - - -

PN32

THE SENIOR DEPUTY PRESIDENT: That's not dated, that attachment.

PN33

MR CLEARY: As I understand it, your Honour, it was signed on 4 May, the same date that the application was sent to me.

PN34

THE SENIOR DEPUTY PRESIDENT: Right, and the statutory declaration will attest to the fact that those employees remain the employees of the company and no substantial changes?

PN35

MR CLEARY: Yes, that's correct, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Thanks, Mr Cleary.

PN37

The application before me is being dealt with pursuant to schedule 7 Part II Division 1(21K) of the Workplace Relations Act. That particular schedule enables the Commission to hear and determine applications made pursuant to, among other things, section 170MH of the Act as it was prior to 27 March 2006. Section 170MH of the Act as it was places two obligations upon the Commission in respect of applications such as this.

PN38

The first is that on receiving the application the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated. The Commission issued directions that required the applicant to take such steps as are reasonably practicable to advise employees covered by the agreement about the application to terminate the agreement; and further, to advise such employees of the time and place of the hearing. It is on the record from Mr Cleary that that has been accomplished and further, there is a memorandum of understanding which at least in part goes to that particular obligation.

PN39

So I am satisfied that an opportunity has been presented to persons bound by the agreement. Further, as I mentioned at the outset, the CFMEU who have made no appearance today, have been advised of this hearing and therefore an opportunity was made available to the CFMEU to present whatever views they may have had or it may have had in respect of whether the agreement should be terminated. I am satisfied that that particular obligation of the Commission is met.

PN40

Further to that, the second obligation of the Commission is, after complying with the requirement to obtain the views of persons bound by the agreement as to whether it should be terminated, the Commission then must terminate the agreement provided it is satisfied that it would not be contrary to the public interest to do so. It follows from that that the views of persons bound by the agreement as to whether it should be terminated only have relevance to the extent that they impinge upon the public interest.

PN41

Mr Cleary has pointed out that the relevant award covering the employment of those employees who were previously covered by this agreement is the National Building and Construction Industry Award 2000 and that award provides a safety net of terms and conditions for those employees. Further, I note that there is an undertaking signed by Mr B G Walker, director of the company party to the agreement which, among other things, provides an undertaking not to reduce wages and conditions currently afforded to employees.

PN42

I am satisfied that it would not be contrary in the circumstances to terminate the agreement. The requirements of such termination, in my view, are met. That is, that the agreement is beyond its nominal expiry date and to the extent that people have had an opportunity to provide views to the Commission, then the Commission has fulfilled its obligation in respect of taking such steps as it considered appropriate to obtain those views. Further, I am satisfied, as I've already said, that the public interest is not offended in any way by the termination of this agreement.

PN43

Therefore, subject to the receipt from Mr Cleary of the statutory declaration attesting to the fact that those employees listed in the second page of exhibit A1 are the same employees and that no significant changes have taken place since those signatures were furnished, then the agreement known as the Albury Demolitions Pty Limited and MBAV CFMEU Building and Construction Industry Collective Bargaining Agreement 1999/2002 will be terminated by order. The date of termination will be in accordance with the receipt of the statutory declaration that you referred to, Mr Cleary.

PN44

All right. There being nothing further?

PN45

MR CLEARY: No, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned.

<ADJOURNED INDEFINITELY [10.16AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DOCUMENT ENTITLED "ATTACHMENT A MEMORANDUM OF UNDERSTANDING" PN9