AG2007/627, Transcript of Proceedings [2008] AIRCTrans 32 (29 January 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18017-1

DEPUTY PRESIDENT IVES

AG2007/627

s.170MH -prereform Act - Application to terminate agreement (public interest)
E.N.E Services Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2007/627)

MELBOURNE

10.06AM, TUESDAY, 15 JANUARY 2008

PN1

MR S CONTI: I am the director of ENE Services.

PN2

THE DEPUTY PRESIDENT: Mr Conti, you initially filed an application under section 170MG of the Act, as it was prior to 27 March 2006, for the termination of the agreement in question here and that was filed at a time just prior to the expiration of that agreement. I think my associate advised you at the time that the agreement was just due to expire and of the requirements in respect to MG. That application you didn't proceed with and you subsequently filed the application under section 170MH of the Act as it was and you've done that after the termination of the agreement. Now, although I've had no word about this, the presumption that I'm making is that you withdraw the application that you initially made. Is that correct?

PN3

MR CONTI: That is correct, your Honour, yes.

PN4

THE DEPUTY PRESIDENT: I accept that the original application lodged as AG2007613 is withdrawn and that was the application under section 170MG. What we're here to deal with today is your application under section 170MH of the Act as it was, which is to terminate the ETU and ENE Services Pty Ltd Enterprise Agreement 2004-2007 and that agreement expired on 31 October 2007. Is that correct?

PN5

MR CONTI: That's correct., your Honour.

PN6

THE DEPUTY PRESIDENT: Mr Conti, the Commission has a couple of duties in respect of applications such as this. The first is that 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. The persons bound by the agreement is the organisation which you represent, the ETU division of the CEPU and any employees whose employment is covered by the terms of the agreement.

PN7

I issued some directions to you, Mr Conti, which directed you to take such steps as were reasonably practicable to advise the 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 note that there are no employees here today so were those directions followed, Mr Conti?

PN8

MR CONTI: Yes, they were, your Honour.

PN9

THE DEPUTY PRESIDENT: You have how many employees, Mr Conti?

PN10

MR CONTI: I have two employees that currently work for me but at this present time they're on annual leave. One is due back on Monday, the 21st, the other won't be due back till the end of January.

PN11

THE DEPUTY PRESIDENT: How did you go about complying with those directions, Mr Conti?

PN12

MR CONTI: Basically, your Honour, I spoke to my two employees prior to us finishing off the year at Christmas, letting them aware that I had today's hearing, that I would be terminating my EBA as we no longer do any more union work such as shop fit-outs, union sites. Our work now focuses more on the cottage sector and servicing which is not union orientated, plus the two employees that I do have don't want to be on union sites anyway. They're quite happy to do what I'm currently doing at the moment. Basically, your Honour, what I've done is, I've restructured myself. I no longer do work for - - -

PN13

THE DEPUTY PRESIDENT: Yes. Sorry, Mr Conti, the question is this, I have an obligation to take such steps as I consider appropriate to get the views of persons bound by the agreement, as I said to you. In other words, I need to have your view, which is fairly obvious, you want to terminate the agreement. I need to take steps to obtain the views of other persons, that being your employees and the union. What I directed you to do was to let your employees know that you are attempting to terminate the agreement and to advise them of the time and the place of the hearing so that I was able, if they wished to provide any views, to obtain those views. What I'm asking you now is, did you do that?

PN14

MR CONTI: Yes, I did, your Honour.

PN15

THE DEPUTY PRESIDENT: Have you had any conversations with the union at all, Mr Conti?

PN16

MR CONTI: Yes, I have, your Honour, and when I last spoke to the unions they said that they wouldn't be contesting. They said, "If that's your wish, that's fine."

PN17

THE DEPUTY PRESIDENT: I further note that the union party to this agreement were notified of the listing by the Commission and there is no appearance here today by the union.

PN18

Mr Conti, you've just given me some information about the directions that I issued. There are two ways of putting material before the Commission, one is as you've just done it by an assertion made from the bar table. Another way is to provide it as evidence from the stand, that is to go into the stand, take the oath and then provide it as evidence. In this case you are asserting that you complied with the directions of the Commission as far as advising your employees so all I have is an assertion from you that that is done. If you were to take the stand and take the oath, then I would have evidence given under oath that you did that. Is that something that you're prepared to do, Mr Conti?

PN19

MR CONTI: Yes, that's fine.

<SALVATORE CONTI, SWORN [10.14AM]

PN20

THE DEPUTY PRESIDENT: Mr Conti, is it your evidence that you have advised all employees who are currently covered by the terms and conditions of the ETU and ENE Services Pty Ltd Enterprise Agreement 2004-2007 of the application to terminate that agreement and further, that you have advised those employees of the time and place of the hearing of this application?---Yes, I have, your Honour.

PN21

Thank you, Mr Conti, you can step down.

<THE WITNESS WITHDREW [10.15AM]

PN22

THE DEPUTY PRESIDENT: Mr Conti, the next issue of importance to the Commission in respect of an application such as this, is an issue about the public interest. The Commission must terminate the agreement, once it has obtained the views of parties bound, if it comes to a view that it would not be contrary to the public interest to do so. I have to make a determination, Mr Conti, about whether it would be contrary to the public interest to terminate your employment and that is a determination relating, as I said to the public interest, not simply to the private interests of individuals.

PN23

There may be a number of issues that impinge upon the public interest but one that may be valid in this circumstance is the instrument or manner of industrial regulation that will apply to those employees who were or would have been covered by the agreement after the agreement no longer exists. Do you follow what I'm saying?

PN24

MR CONTI: Yes.

PN25

THE DEPUTY PRESIDENT: In other words, I have to take account of what is going to be the regulatory instrument that governs these employees' employment when this agreement doesn't exist any more. If I am satisfied that that is a circumstance which would not give rise to any public interest concerns, and if there are no other public interest concerns, it may be that that is sufficient for me to terminate the agreement. I need you to tell me, Mr Conti, what will be the circumstances of coverage of your employees after the termination of this agreement, if it occurs. Presumably there is an award which would cover their employment. If there is, which award is that?

PN26

MR CONTI: Your Honour, once this EBA will be terminated and if it does become terminated, we will fall under the NECA Award, which I believe is the federal award. That's what we'll be following. We've got all the information required that we need, which we've downloaded, pay rates and so forth and so forth.

PN27

THE DEPUTY PRESIDENT: The employees concerned, you say, will be covered by the terms and conditions of the NECA Award.

PN28

MR CONTI: NECA Award, correct.

PN29

THE DEPUTY PRESIDENT: I am satisfied that appropriate steps have been taken to obtain the views of persons bound by the agreement about whether it should be terminated and I am further satisfied that to terminate this agreement would not be contrary to the public interest on the basis of the materials that are before me. It appears that an appropriate safety net award will cover the terms and conditions of those employees who would otherwise would have been covered by the terms of this agreement and I have nothing to suggest to me that there is any other reason that it would be contrary to the public interest to terminate the agreement.

PN30

On that basis, pursuant to schedule 7, Part II, Division 1 subsection 21K of the Act, which provides an ability for section 170MH of the Act, as it was prior to 27 March 2006, to continue in operation, the agreement known as the ETU and ENE Services Pty Ltd Enterprise Agreement 2004-2007 will be terminated. It will be terminated by means of an order and that order will be issued with effect from today's date.

PN31

That's it, Mr Conti.

PN32

MR CONTI: Thank you very much, your Honour.

PN33

THE DEPUTY PRESIDENT: The matter is adjourned.

<ADJOURNED INDEFINITELY [10.21AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

SALVATORE CONTI, SWORN PN19
THE WITNESS WITHDREW PN21