AG2007/562, Transcript of Proceedings [2007] AIRCTrans 371 (27 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17137-2

SENIOR DEPUTY PRESIDENT LACY

AG2007/562

s.170MH -prereform Act - Application to terminate agreement (public interest)
Leighton Contractors Pty Ltd
and
The Australian Workers’ Union
(AG2007/562)

MELBOURNE

5.29PM, FRIDAY, 13 JULY 2007

Continued from 26/6/2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. Any change in appearances.

PN2

MR SMETANA: No Your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Very well. Could I indicate to the parties that I have received a letter from Somers Legal dated 10 July 2007 addressed to Mr Tim Daly referring to a telephone conversation and confirming advice from the AWU that it does not oppose the Leighton Contractors' application in this matter to terminate the Yarrie Project Operations certified agreement 2006 and it goes on to say -

PN4

I understand the union has written to all its members at Yarrie to ascertain the avenues on Leighton Contractors' application and has not received any response.

PN5

I will mark that letter as exhibit - have I marked any exhibits in this matter? I don't think I have, have I?

PN6

MR SMETANA: Not as yet Your Honour.

EXHIBIT #L1 LETTER TO MR TIM DALY

PN7

THE SENIOR DEPUTY PRESIDENT: Yes Mr Smetana is it?

PN8

MR SMETANA: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes Mr Smetana.

PN10

MR SMETANA: Thank you Your Honour. This is an application pursuant to Schedule 7 Part 2, sub-paragraph 2K of the Workplace Relations Act which incorporates section 170(M)(H) of the Pre reform Act. The requirements to terminate the Yarrie agreement are that the nominal expiry date has passed and in this respect the nominal expiry date was 30 March 2007. Leighton Contractors is the relevant employer and brought this application on 15 June 2007 in according with Rule 57 of the Commission Rules. The Commission is obliged to take such steps as it considers appropriate to obtain the view of the persons bound by the agreement.

PN11

Leighton Contractors submits that there's no opposition to termination of the agreement by the AWU. Of course, Leighton Contractors seeks termination of the agreement and therefore it's the view of the parties - or there's no opposition by the parties to termination of the agreement. The final requirement for termination of the agreement is that the Commission considers it is not contrary to the public interest to terminate the agreement. The test is of course framed in the negative so it is that is not contrary to the public interest. Leighton Contractors that there is nothing on the record to indicate that it is against the public interest that the agreement be terminated and that in circumstances where the union doesn't oppose termination of the agreement, that is sufficient basis for the Commission to order that the agreement be terminated.

PN12

I can take the Commission to cases to support this if you wish. I've also good
Ms Howie in behalf of Leighton Contractors to give any evidence that the Commission sees necessary, but at this stage I would submit that there's sufficient basis to terminate the agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Is there a Statutory Declaration accompanying the application in this matter at all?

PN14

MR SMETANA: No there isn't Your Honour. There's no formal requirement to do so where the application is - - -

PN15

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN16

MR SMETANA: - - - but Ms Howie is here and available to give evidence if you believe it necessary.

PN17

THE SENIOR DEPUTY PRESIDENT: Well can you tell me, did the company take any steps to notify the employees of its application?

PN18

MR SMETANA: No, the company relied on the union's contact with its members on the basis that all employees are covered by Australian Workplace Agreements and therefore there's no one covered by the agreement as referred to in the Act.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes all right, well perhaps I'll hear what Mr Daly has to say.

PN20

MR SMETANA: Thank you Your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes Mr Daly.

PN22

MR DALY: Deputy President, the union did write, as I think I told you at the last time, to all of our members employed by ..... at Yarrie advising of the application. We had one member who sought a copy of the agreement to be sent to him. Following the further hearing a little while ago, I wrote again to all of the members indicating that it was my preference to not cancel, if any of them had a view which they would like to see it maintained and there has not been any response whatsoever and on that basis I am not going to oppose the cancellation of the agreement.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Daly. Yes very well
Mr Smetana, on the basis of the submissions advanced by yourself and Mr Daly's submissions I am satisfied that it would not be contrary to the public interest and that necessary steps have been taken to ascertain the views of the parties who might be affected by its cancellation or termination, so in the circumstances I will grant the application.

PN24

MR SMETANA: Thank you Your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: I will publish some reasons for that in due course by the order of cancellation will take affect from - I will make it from today week because of the time of the day and because I have to go and catch an aeroplane. I won't have an opportunity to draft an order today.

PN26

MR SMETANA: Thank you Your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Anything else?

PN28

MR SMETANA: No sir.

PN29

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned.

<ADJOURNED ACCORDINGLY [5.36PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L1 LETTER TO MR TIM DALY PN6