AG2007/558, Transcript of Proceedings [2007] AIRCTrans 295 (18 June 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16997-1

DEPUTY PRESIDENT IVES

AG2007/558

s.170MH -prereform Act - Application to terminate agreement (public interest)
O’Donnell Griffin Pty Limited
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Construction, Forestry, Mining and Energy Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2007/558)

MELBOURNE

2.04PM, TUESDAY, 05 JUNE 2007

PN1

MR J COONEY: Seeking leave to appear on behalf of the applicant in this matter, your Honour.

PN2

THE DEPUTY PRESIDENT: Thank you. You can be seated for a moment. The Commission essentially has two duties in respect of applications such as this one. The first is to take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated and the second is to terminate the agreement subject to an assessment as to whether or not it would be contrary to the public interest to do so.

PN3

In respect to the first requirement I have some correspondence from the union parties to the agreement and I should say that the views of the parties as to whether the agreement should be terminated it follows from the construction of the Act are only relevant to the degrees to which those views impinge upon the public interest. I have a letter signed by Mr Richard Williams of the Electrical Trades Union, Queensland branch, stating among other things that the electrical division of the union is not opposed to the application that is before me.

PN4

That is its not opposed to determination of the O'Donnell Griffin Pty Ltd Hay Point Expansion Project Agreement. I have a further correspondence from the CFMEU Queensland Construction Workers Divisional Branch signed a Melissa Keily also to the effect that that union holds no objection to the application being granted. This morning some correspondence was received by the Commission from an Andrew Dettmer of the Australian Manufacturing Workers Union Queensland state office which also advises that that particular union is not opposed to the granting of the application.

PN5

So those letters would indicate there is no opposition on behalf of any of the unions a party to the agreement and the Commission's obligation to obtain views at least in so far as the union parties are concerned are discharged. Now,
Mr Cooney, you say there are no employees currently covered by the terms of this agreement, is that correct?

PN6

MR COONEY: That is correct, your Honour, this was a project agreement which O'Donnell Griffin is a party.

PN7

THE DEPUTY PRESIDENT: Yes, and that is part of a witness statement of
Mr Golds, is that correct, that information is part of a witness statement of
Mr Golds? You intend to put Mr Golds in the stand to testify to the veracity of that statement did you?

PN8

MR COONEY: Only if the Commission so chooses.

PN9

THE DEPUTY PRESIDENT: Well, I'm quite happy to choose Mr Golds but if you want to give the force of oath to the statement then that's probably advisable.

PN10

MR COONEY: Okay, that would be a good idea, your Honour.

PN11

THE DEPUTY PRESIDENT: Yes. All right. Just move to the stand, Mr Golds.

<CRAIG CHARLES GOLDS, AFFIRMED [2.09PM]
<EXAMINATION-IN-CHIEF BY MR COONEY

PN12

THE DEPUTY PRESIDENT: You can be seated thanks, Mr Golds. Go ahead Mr Cooney.

PN13

MR COONEY: Mr Golds, you work for O'Donnell Griffin?---That's correct.

PN14

What's your position?---I am the national human resources manager.

PN15

How long have you been in that position for?---Just on two years this week.

PN16

Now I take it you've seen the witness statement?---I have.

PN17

And everything you state in that witness statement is true and correct?---That's correct.

PN18

Do you wish have anything, do you wish to rely on the comments made in that witness statement?---Yes, I do.

PN19

Do you wish to add anything that's in that witness statement?---No.

PN20

Look I just intend to rely on the statement of Mr Golds.

PN21

THE DEPUTY PRESIDENT: Yes, so presumably you wish to have that tendered.

PN22

MR COONEY: Yes, exactly.

EXHIBIT #A1 WITNESS STATEMENT OF MR GOLDS

PN23

MR COONEY: Unless the Commission has any questions for Mr Golds I don't intend to ask him any questions.

PN24

THE DEPUTY PRESIDENT: Thank you. I do have one or two.

PN25

Mr Golds, you say in your witness statement and I just can't immediately see it but I remember reading it before that there are currently no employees of O'Donnell Griffith employed under the terms of this agreement. Is that correct?---That is correct, your Honour.

PN26

Yes. In the event that O'Donnell Griffin did put employees back on this particular project for any reason what and absent this agreement, what would be the industrial coverage of those employees? Presumably there would be a safety net award?---There would be. There's the electrical contracting award for Queensland 2003 I think it is but in essence because its project based the likelihood of us putting employees back on that specific project would be very, very minor.

**** CRAIG CHARLES GOLDS XN MR COONEY
PN27

Yes. Well, I appreciate that that's probably the case, Mr Golds, seeing it is a project but the Commission has a responsibility to assess whether it would be contrary to the public interest to terminate the agreement. One possibility of a circumstance that would be contrary to the public interest or could be considered contrary to the public interest is a circumstance where there were employees employed and those employees were not subject to any safety net industrial coverage required under the award?---I appreciate that fact, your Honour.

PN28

So that was the reason for the question. So you say in the unlikely event that there were employees employed on that particular job the coverage of those employees would be by the - - -?---Electrical Contracting Industry Award for Queensland 2003.

PN29

Right. Good. Thank you. All right, that's all I have. You've got nothing further for Mr Golds, Mr Cooney?

PN30

MR COONEY: Thank you, your Honour.

PN31

THE DEPUTY PRESIDENT: You can stand down, thank you Mr Golds for your evidence.

<THE WITNESS WITHDREW [2.13PM]

PN32

THE DEPUTY PRESIDENT: Mr Cooney, is there anything further you wish to say?

PN33

MR COONEY: Your Honour, just that we believe that it's not contrary to public interest as Mr Golds so rightly put. It is a project agreement. In the unlikely event that employees were to fall off such terms and conditions they have a good safety net in the - I'll just refer to the name of that award, the Electric Contracting Industry Award State 2003 for Queensland. There is also consent from the parties to the agreement and given the tests that are under 170MH(2) and subsection (3) we believe the Commission should be satisfied with the application.

PN34

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Cooney. Well, as I stated at the outset the Commission's functions are twofold in respect to this application and that is in the first instance I'm receiving the application to take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated. I've already referred to the views of the unions bound the agreement and none of those unions oppose the termination of the agreement.

PN35

There are no employees covered by the terms of the agreement so no views of employees are available for the Commission to consider or to obtain and obviously the applicant making the application is of a view as has been stated on the record that it should be terminated. The matter has been dealt with pursuant to schedule 7 part 2 division 1subsection (2)(1)(K) of the Act which 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.

PN36

The requirements of 170MH I have referred to now on a couple of occasions. The first being in relation to the views of parties bound, the second is in relation to whether the Commission considers it would be contrary to the public interest to terminate the agreement. If the Commission comes to a view that it would not be contrary to the public interest to terminate the agreement then the Commission must by order terminate it. There is nothing before me which would persuade me that it would be contrary to the public interest to terminate the agreement.

PN37

I am advised that there are currently no employees and no likelihood or very likelihood of there being employees who would otherwise be covered by this agreement but in the event that there were those employees would have appropriate safety net award coverage. That being the case I find that the public interest is in no way offended by the termination of this agreement and the agreement will be terminated by order with effect from today's date. The matter is adjourned. Thank you.

<ADJOURNED ACCORDINGLY [2.17PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

CRAIG CHARLES GOLDS, AFFIRMED PN11
EXAMINATION-IN-CHIEF BY MR COONEY PN11
EXHIBIT #A1 WITNESS STATEMENT OF MR GOLDS PN22
THE WITNESS WITHDREW PN31