AG2007/599, Transcript of Proceedings [2007] AIRCTrans 483 (24 September 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17389-1
17390-1

DEPUTY PRESIDENT IVES

AG2007/599 AG2007/602

s.170MH -prereform Act - Application to terminate agreement (public interest)
Advanced Security & Electrical Services Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2007/599)

s.170MH -prereform Act - Application to terminate agreement (public interest)
Advanced Security & Electrical Services Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2007/602)

MELBOURNE

10.30AM, WEDNESDAY, 12 SEPTEMBER 2007

PN1

MS T MATHIESON-LOWE: I am appearing with MR P MATHIESON-LOWE.

PN2

THE DEPUTY PRESIDENT: Yes, thank you be seated. These agreements that are before me – who is speaking on behalf of the company?

PN3

MR MATHIESON-LOWE: Probably Tracie will be speaking.

PN4

THE DEPUTY PRESIDENT: Right, Ms Mathieson-Lowe one appears to be a predecessor agreement to the other, is that correct?

PN5

MS MATHIESON-LOWE: Apparently, yes.

PN6

THE DEPUTY PRESIDENT: Yes, stand when you address the Commission.

PN7

MS MATHIESON-LOWE: Sorry, I’ve got rheumatoid arthritis, I can only just stand for a while, if that’s all right.

PN8

THE DEPUTY PRESIDENT: If that is the case then, feel free to remain seated.

PN9

MS MATHIESON-LOWE: Is that okay, it’s just that I’m having trouble standing.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MS MATHIESON-LOWE: What had happened was that apparently there was an agreement for 2000 which is the one that I was trying to terminate. Then they advised me there was one for 2003 which I assumed would have superseded 2000. But they’ve told me I have to have both of the agreements terminated.

PN12

THE DEPUTY PRESIDENT: Yes, who told you that?

PN13

MS MATHIESON-LOWE: Well Michael is the man I’ve been dealing with at the AIRC, he’s been very helpful. He didn’t realise there was a 2003. He said, in his words, there’s something wrong with the 2003 which he had to try and get the information for me because we couldn’t even – it wasn’t listed that there was a 2003 EBA. There was only a listed agreement of 2000, so that’s why originally we lodged all the forms to terminate 2000, then this 2003 came up and he said well you need to do both.

PN14

THE DEPUTY PRESIDENT: I don’t seem to have a copy of the 2003 agreement.

PN15

MS MATHIESON-LOWE: I’ve got one- well I’ve only got what they’ve given me.

PN16

THE DEPUTY PRESIDENT: You might just hand the 2003 agreement to my associate for a moment if you don’t mind.

PN17

MS MATHIESON-LOWE: Which I just got off the internet, he forwarded it to us.

PN18

THE DEPUTY PRESIDENT: When you entered into these agreements the 2003 agreement you entered into as a replacement agreement for the 2000 agreement, is that correct?

PN19

MR MATHIESON-LOWE: Yes.

PN20

THE DEPUTY PRESIDENT: That being the case if that is the case, then the 2000 agreement would cease to have any operation by virtue of the fact that it is replaced by the 2003 agreement. If the 2003 agreement is subsequently terminated then that doesn’t mean that the prior agreement begins to have application again. It is effectively replaced and therefore ceases to have application. So in a technical sense the application for the termination of both agreements, is likely unnecessary.

PN21

MS MATHIESON-LOWE: Right.

PN22

THE DEPUTY PRESIDENT: In that the only agreement that would continue to operate is the more recent agreement. That more recent agreement which is the 2003 agreement continues to operate in respect of any employees of your business, covered by it or likely to be covered by it until such time as it is either terminated or that it is replaced by another agreement. The 2000 agreement appears to have been already replaced by the 2003 agreement so therefore it ceases to have application in any event.

PN23

MS MATHIESON-LOWE: Right okay.

PN24

THE DEPUTY PRESIDENT: Now look you were provided with certain directions in respect of these applications by the Commission. Those directions were to the effect that you were to take steps to advise employees covered by the agreement about the application to terminate and further to advise such employees of the time and place of the hearing of the application. I understand from the material that you have provided, that you say there are no employees - - -

PN25

MS MATHIESON-LOWE: At that time, your Honour.

PN26

MR MATHIESON-LOWE: There are now, we do have a couple of guys working for us now, your Honour.

PN27

THE DEPUTY PRESIDENT: You do, yes, well that’s what I’m talking about and that’s what the directions were in respect of not in respect of at that time, because if you have employees working for you now then presumably they are covered by the terms of the 2003 agreement because that 2003 agreement hasn’t been replaced. So the directions that were made to you were directions that you should advise those employees about this application to terminate the agreement and that they should be further advised at the time and place of the hearing.

PN28

MS MATHIESON-LOWE: I actually had thought we had terminated this agreement of 2003 agreement. This only came to my attention in March of this year that we actually had to come in to – I had to lodged all these forms. I sent and I mean – it’s been a bit of a quandary. The reason why we’re in this state at the moment is if I can – if you can bear with me while I explain. There’s a company called Protect, which is part of the EBA, which is the severance and redundancy scheme which is attached to the EBA agreement with the ETU. We were members of – or Peter was a member of that whilst we were – the opinion that we were under the EBA and I’ve paid the contributions. When I wrote a letter to the Electrical Trades Union asking them back in 2003, terminate we weren’t going to renew our EBA and we wanted to terminate it.

PN29

Now at that time, and it is ignorance on my behalf, but at that time, we hand delivered the letter and we thought that was all that needed to be done. It wasn’t given me this information until March of this year, by Michael who I’ve been dealing with at the AIRC that we needed to go through this process. Then it came up that there was two agreements, or that one agreement that was 2000, we couldn’t find the 2003. So there’s been a lot of administration backwards and forwards and numerous letters. We never renewed our EBA nor did we have employees at the time when the EBA was, in our opinion, was supposed to have been ceased at 31 December 2003.

PN30

THE DEPUTY PRESIDENT: Yes, that’s not relevant Ms Mathieson-Lowe I’m afraid. It doesn’t matter. You had an agreement, the 2000 agreement that agreement reached its expiry date. You had further negotiations with the ETU and you struck a further agreement which is the 2003 agreement. You’ve made no further agreements since that 2003 agreement.

PN31

MS MATHIESON-LOWE: That’s right.

PN32

THE DEPUTY PRESIDENT: The 2003 agreement reached its nominal expiry date, presumably in 2003, but by force of the statute of the Act it continues to operate until such time as either it is properly terminated in accordance with the Act, which is what you are here for now, or until it is replaced by another agreement.

PN33

MS MATHIESON-LOWE: Right.

PN34

THE DEPUTY PRESIDENT: But it hasn’t been replaced by another agreement. So the 2003 agreement continues to apply, it may have reached its expiry date
Ms Mathieson-Lowe I recognise that, but it continues to apply by force of the statute. So you are seeking now to have that 2003 agreement terminated, is that correct?

PN35

MS MATHIESON-LOWE: Yes, please.

PN36

THE DEPUTY PRESIDENT: To that end I issued you with some directions and those directions were that you should advise those employees that are covered by the agreement that you intended to terminate it and that you should further advise them that there was going to be a hearing into that in this Commission at this time, today so that they could attend that hearing and provide their view about the termination if they wished to do so. Have those employees that you say you have employed been advised of the termination of the agreement and been advised as to this hearing?

PN37

MS MATHIESON-LOWE: No.

PN38

THE DEPUTY PRESIDENT: Then I’m not able to terminate the agreement because that is one of the steps that must be followed beforehand and that’s why I issued the directions.

PN39

MS MATHIESON-LOWE: Michael from the general - - -

PN40

THE DEPUTY PRESIDENT: Yes, I’m not really interested
Ms Mathieson-Lowe about what somebody might have said to you. I’m interested in my obligations under the Act.

PN41

MS MATHIESON-LOWE: I understand that.

PN42

THE DEPUTY PRESIDENT: And I issued you some directions in respect of them and you say you haven’t complied with those directions.

PN43

MS MATHIESON-LOWE: Well the directions that we had – well the only information that I was given was to do the new format because we’d already lodged one - - -

PN44

THE DEPUTY PRESIDENT: Sorry Ms Mathieson-Lowe let me interrupt you for a moment. Were you or were you not provided with a document headed notice of listing of a matter?

PN45

MS MATHIESON-LOWE: Yes.

PN46

THE DEPUTY PRESIDENT: Does it or does it not say on that that the above matter is listed for hearing before myself at 10.30 am this morning and then goes on to say section 170MH(2) of the Act, as it was prior to 27 March 2006, provides that on receiving an application the Commission must – and I emphasise the word must, because that gives the Commission no discretion in the matter, it must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.

PN47

It then goes on to say directions:

PN48

The Commission directs the applicant –

PN49

That’s you:

PN50

–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 of the application.

PN51

MS MATHIESON-LOWE: I understood that to be just us because that was the EBA agreement that we had up to 2003 we were the only employees at that time.

PN52

THE DEPUTY PRESIDENT: Yes, but the agreement as I said to you continues to operate and in fact, is likely to refer to that in the agreement itself. If it doesn’t then the Act certainly does:

PN53

The agreement will operate from the time of signing and will continue to remain in force until 1 January 2003 and shall continue to apply until such time as the parties reach agreement on a replacement enterprise agreement.

PN54

It says that in your own agreement.

PN55

MS MATHIESON-LOWE: Yes, I only actually received that later mid last week because we didn’t have a copy of it.

PN56

THE DEPUTY PRESIDENT: So okay, then when you received that at that point in time did it not occur to you that that meant exactly what it says, that it continues to apply and that therefore it would apply to those employees who it currently employ?

PN57

MS MATHIESON-LOWE: No it didn’t your Honour. I honestly didn’t I just thought it was just associated to Peter and myself when the EBA ended in 2003 our company changed direction - - -

PN58

THE DEPUTY PRESIDENT: Yes, okay thank you. Unfortunately, I have two obligations under the Act in respect of terminating – just be seated. The first of those is laid out at section 170MH(2) of the Act and it is to the effect that I’ve just gone through with you. When I receive an application such as this I must according to the statute take steps as I consider appropriate to obtain the views of persons bound by the agreement about whether it should be terminated. So that means I need to seek your views they’re pretty obvious, you’ve sought to terminate it.

PN59

I need to seek the union’s views, that’s been done by me, by advising the union of this hearing, through my associate, providing them with a notice of listing of this hearing so that there was available for them to appear if they wished to do so. So the union knew that this hearing was on and had the opportunity to be here and provide their views. They’ve chosen not to do so. The only other people that are bound by the agreement are those employees covered by it. They were entitled to have their views heard. Now it may be that they are quite amenable to having the agreement terminated.

PN60

It may be that they couldn’t care less one way or the other. It may be that they wouldn’t have chosen to come in to say anything about it, because they are quite happy for the termination to take effect. But I don’t know any of that because they’ve not been told and I have a responsibility to obtain their views, the Act imposes that responsibility on me. It further imposes a responsibility on me after I have satisfied myself as to the views of those persons bound to terminate the agreement if I consider that it would not be contrary to the public interest to do so.

PN61

So I would then want to talk to you about what the circumstances of coverage were for your employees absent this agreement. That is what would be the award that covers your current employees. I would want to be satisfied in other words that they had some underpinning safety net so that I could be satisfied or at least, that would go towards being satisfied, as to whether or not it would be contrary to the public interest to terminate the agreement. In the circumstances we don’t even get to that step, because you haven’t complied with the directions that you were given.

PN62

MS MATHIESON-LOWE: Well I misunderstood the direction yes, and when I queried a couple of the questions with the help line that I was dealing with, they basically just explained to me that this would be a fairly straight forward matter due to the fact that it’s very obvious that the EBA agreement has not been in place or used, nor have we been - - -

PN63

THE DEPUTY PRESIDENT: Well it’s not very obvious at all in fact
Ms Mathieson-Lowe it’s quite the EBA has been in place and has been used whether you know it or not. It’s been in place and been used simply by your own acknowledgement you have employees and those employees that you currently have their employment is covered by that agreement. In other words, you are bound to act in accordance with that agreement with those employees. If you don’t you could be in breach of the law.

PN64

MS MATHIESON-LOWE: We know that yes.

PN65

THE DEPUTY PRESIDENT: Yes, so it does have – you just said it doesn’t have operation and I’m just letting you know that it does.

PN66

MS MATHIESON-LOWE: But as far as the steps that I took back in October 2003 where I believed I had terminated and notified the union we weren’t going to renew, it didn’t come to my knowledge until March of this year that we needed to come into this arena to have that finished, that it was a formality that we needed to apply. It was never – I’ve spoken to the union on a couple of issues regarding - - -

PN67

THE DEPUTY PRESIDENT: Well with respect Ms Mathieson-Lowe it is not a formality, it is a requirement of the Federal Act.

PN68

MS MATHIESON-LOWE: I understand.

PN69

THE DEPUTY PRESIDENT: The requirement from my point of view is two-fold. First of all to obtain the views, I have your view. Presumably the union has no objection because otherwise they would be here making it. What I don’t have and what I don’t know is what the views of the employees are and therefore I’m unable to fulfil the function that the Act imposes upon me to fulfil in respect of this or these applications. Now the only thing that I can suggest to you in the circumstances Ms Mathieson-Lowe is that I adjourn the proceedings to a later date and that in the interim, you comply with the directions that you have been provided with.

PN70

That would be if I adjourn to that hearing – the hearing to a later date, that would be to advise your employees of your intention with respect to the agreement and to provide them with advice as to the time and place of the hearing and then next time, when we reconvene I’ll be in a position to fulfil my obligations under the Act.

PN71

MS MATHIESON-LOWE: So we need to have them all here or they need to give written?

PN72

THE DEPUTY PRESIDENT: No, they don’t need to give anything whatsoever if they don’t wish to Ms Mathieson-Lowe. I simply have to take steps to ensure that they have been provided with an opportunity. The Act says that:

PN73

The Commission must take steps as it considers appropriate to obtain the views of the persons bound by the agreement about whether it should be terminated.

PN74

So you go to your employees and you say to your employees we intend to have this agreement which currently covers your employment terminated. That’s what we want to do. We have to make an application to the Commission to have that done. The Commission requires or will require the views of the persons bound. Our view is that it should be terminated you’re entitled to give a view if you wish. If you do wish to give a view, then the hearing will be on at and you’re entitled to provide that view. Alternatively, if you want to put something in writing you can do that.

PN75

If you don’t want to do anything whatsoever then that’s fine too because just like the union I’ve told the union, or my associate has, that this matter has been listed and the union had the opportunity to come here and provide its views. It’s absence means that it has no objection to the termination taking place. If your employees have been told and choose not to come and say anything then I will take that as being consent. But I will be asking you next time whether or not you’ve complied with the directions and I will likely ask one or the other of you to take the stand and under oath tell me that you have complied with those directions.

PN76

When I have satisfied myself under section 170MH(2) I’ll then want to satisfy myself that it is not contrary to the public interest to terminate the agreement. One of the considerations there is what the coverage of those employees will be when this agreement no longer exists. So I will want to know from you at that point in time when this agreement no longer exists, what is the instrument that will underpin their employment. Now this instrument is – this agreement I’m sorry, is reliant upon the NECA award, in other words it refers to and is underpinned by the National Electrical Electronic and Communications Contracting Industry Award 1998.

PN77

It’s the NECA award that would presumably govern the employment of any employees who would or are otherwise covered by this agreement. So whatever you’re doing by way of terms and conditions for your employees currently, then first of all it is governed by this agreement. This agreement lays out the terms and conditions for those employees. If I terminate this agreement I need to be satisfied that there will be some instrument which provides them with a safety net. Presumably that’s the NECA award, is that right Ms Mathieson-Lowe?

PN78

MS MATHIESON-LOWE: We do pay under the national electrical electronic and communications contract industry award.

PN79

THE DEPUTY PRESIDENT: Yes, that wasn’t the question that I asked
Ms Mathieson-Lowe is the coverage – whether you pay under it or not is a matter for you – are the employees that you employ appropriately covered under the NECA award for the work they do?

PN80

MR MATHIESON-LOWE: Our business has shifted direction since the EBA we were - I’m an electrician by trade.

PN81

THE DEPUTY PRESIDENT: Yes.

PN82

MR MATHIESON-LOWE: And we were doing electrical work and from the end of 2003 we’ve shifted more into the security industry, electronic security. So there’s a lot of things in the NECA that don’t I’m assuming don’t apply.

PN83

THE DEPUTY PRESIDENT: So some of those employees that you are employing or some of the work that they do, what you are saying to me it may be that they NECA is not the applicable award?

PN84

MR MATHIESON-LOWE: Yes, there would be parts of the award - - -

PN85

THE DEPUTY PRESIDENT: Yes, all right well then between now and when we next convene, are you a member of the National Electrical Contractors Association?

PN86

MR MATHIESON-LOWE: No.

PN87

THE DEPUTY PRESIDENT: Is there a body that you are able to seek some advice from as to the appropriate coverage of those employees some industry body?

PN88

MS MATHIESON-LOWE: I’m assuming it would only be wage net or something like that.

PN89

THE DEPUTY PRESIDENT: Yes well whatever body you decide to consult with you need to ensure that you are in a position next time you are before me to provide me with advice as to the coverage of your employees absence this agreement. In other words, what legally are you bound to apply to the terms and conditions – as terms and conditions for your employees when this agreement is no longer in place.

PN90

MR MATHIESON-LOWE: Do you require a copy of that?

PN91

THE DEPUTY PRESIDENT: No, there’s no necessity. I just need to be satisfied that there is an underpinning instrument which provides a safety net for those employees. Because as I said at the moment, these employees I don’t know, you might be paying them well above this agreement but the law requires that you comply with this agreement until such time as it is replaced or terminated. So you are legally bound to apply the terms and conditions of this agreement as a minimum. Now you might be giving more than that, but as a minimum you need to apply this agreement.

PN92

If I take it away by terminating it, there needs to be something underneath it that you can advise me will provide a legal minimum there for those employees and presumably that will be an award, it may be the NECA award. But given what you’ve just said about the sort of work that you do, I don’t know. But it’s your responsibility to find that out. It would be your responsibility in any event to find it out would it not because if you’re employing people, you’ve got a legal obligation to make sure that they are provided with conditions and payment in accordance with the requirements of the law?

PN93

MS MATHIESON-LOWE: They are members of everything your Honour, work cover, long service leave - - -

PN94

THE DEPUTY PRESIDENT: Yes, I’m not speaking about what they are members of Ms Mathieson-Lowe I’m speaking about the instrument which provides for their terms and conditions, and how much we pay them.

PN95

MR MATHIESON-LOWE: We’ll ensure we do that your Honour.

PN96

THE DEPUTY PRESIDENT: So you’ll need to know that before we convene again. Now I will issue a re-listing of the matter unfortunately that’s not going to be for some weeks because I will be off on leave. So it’s likely to be some time in the latter part of October the second half of October but when you receive that listing which will be in similar terms to the one that you’ve already received, except for the fact that it will have a different date and time on it, but it will still include the directions that are on it, and I’ll ask that you comply with those directions if you wish to have the application properly dealt with.

PN97

MR MATHIESON-LOWE: Is there anything else you require your Honour that we need?

PN98

THE DEPUTY PRESIDENT: No, there are those two matters under the Act and the two sections of the Act if you want to make a note of them so that you know, are section 170MH(2) as it was prior to 27 March 2006, because this is the old Act and section 170MH(3). They’re the two items that the Commission must have regard to in terminating an agreement. Now that’s the old Act, but those particular sections of the old Act remain in force by virtue of schedule 7 of part 2 of section 21K of the new Act. So in other words, they continue to apply and they’re what I need to be satisfied of.

PN99

MR MATHIESON-LOWE: We’ll ensure we do that.

PN100

THE DEPUTY PRESIDENT: I’m sorry that you’ve wasted your valuable time but it might be advisable in the future if you are unsure of directions that are issued to inquire directly of my associate as to what is required.

PN101

MR MATHIESON-LOWE: We are sorry for wasting the court’s time, your Honour.

PN102

THE DEPUTY PRESIDENT: That’s fine, all right the matter is adjourned is there any particular time just before I do adjourn, and as I say this is not likely to happen until the second half of October, is there any particular period in there that you don’t want it listed because you won’t be available.

PN103

MS MATHIESON-LOWE: I’ll be in hospital on 3 October to have knee surgery so it would probably be better if it was to the very end of October so that I can come back in.

PN104

THE DEPUTY PRESIDENT: Yes, all right thank you, the matter is adjourned.

<ADJOURNED ACCORDINGLY [11.00AM]