AG2015/2993, Transcript of Proceedings [2015] FWCTrans 501 (31 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052353

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DEPUTY PRESIDENT ASBURY

AG2015/2993

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Dee Enterprises (Qld) Pty Ltd T/A Meklek

and

Mr Geoffrey Greenhalgh; Mr Mark Renwick

(AG2015/2993)

Dee Enterprises (Qld) Pty Ltd Trading as Meklek Employee Collective Agreement 2008/2011

Brisbane

2.33 PM, MONDAY, 10 AUGUST 2015

PN1

THE DEPUTY PRESIDENT: Mr Heath?

PN2

MR B HEATH: Good afternoon, Deputy President. If it please the Commission, my name is Heath, initials BJ, a solicitor from Carter Newell and I appear on behalf of the applicant, Dee Enterprises.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR HEATH: The application, as you know, has been brought for the termination of the collective agreement with retrospective effect and there has been a fair amount of material that has been filed. I thought that it might be useful this afternoon just to make some brief oral submissions with respect to that material that has been filed.

PN5

THE DEPUTY PRESIDENT: Yes.

PN6

MR HEATH: If I just take you to particular bits of material I'd like you to refer to. So we rely upon the following material which is the application for the termination of the collective agreement which was dated 16 June 2015, Mr Dee's statutory declaration sworn in support of that application dated 12 June 2015; there were directions issued by Harrison SDP concerning this application on 17th and 18th June 2015; there is a statutory declaration which I swore, dated 24 June 2015 deposing to delivery of those directions to the employee of Dee Enterprises, Mr Caldwell and to Mr Greenhall and Mr Renwick.

PN7

I also rely upon affidavits of the former employees which are referred to in my submissions, and those are affidavits of Mr Jarrett, Peter Jarrett, sworn 23 June 2015, an affidavit of Mr Declan Mannion sworn 23 June 2015, an affidavit of Mr Glen Richards sworn 23 June 2015, an affidavit of the only employee who remains in the employ of the enterprise, Mr Damian Caldwell, sworn 22 June 2015 and there is a further affidavit which I believe was delivered to you before the conciliation conference at the end of July, which was the affidavit of Mr Woodbine dated 16 July 2015. I'm not sure if that's still on your file so I've brought some copies along.

PN8

THE DEPUTY PRESIDENT: Thanks.

PN9

MR HEATH: Then there are submissions that I prepared in support of the application dated 24 June 2015, further submissions that I prepared on 26 June 2015 and further further submissions of 16 July 2015. The Commission through Harrison SDP has already indicated a willingness to terminate this collective agreement, which expired in November 2011 with prospective effect and that was dealt with in the first directions issued by Harrison SDP on 17 June.

PN10

The only issue which I respectfully suggest still remains to be properly determined is whether this application can be granted on the basis it has retrospective effect, and the date that we seek the termination to be effective from is 12 February 2010. Now in this regard we rely upon Mr Dee's dealings with the Fair Work Commission which are committed to his statutory declaration and in particular the following issues. Mr Dee deposes to the effect that the original application for the termination of the collective agreement was lodged on 19 November 2009, which was the same day that the employees voted to terminate the collective agreement with retrospect - unanimously.

PN11

There was further correspondence exchanged between Mr Dee and Mrs Dee and the Commission. The statutory declaration of Mr Dee is that the last correspondence he received from Commissioner Spencer's associate was 9 February 2010 which is exhibited to his statutory declaration, where the associate sought a letter from Dee Enterprises seeking an assurance that the employees were informed of the industrial instrument, that is the award, that would govern the terms and conditions of their employment and in particular what they would be paid, and that they were aware of this when they voted to terminate the collective agreement.

PN12

Mr Dee responded promptly on 12 February 2010 and sent a letter to Commissioner Spencer's associate to the effect that all their entitlements including their current pay rates would stay the same. If they had any queries in the future they could refer to the electrical and communications contracting award. That letter is exhibited to Mr Dee's statutory declaration. He has deposed to the effect that that is the last correspondence he had with the Fair Work Commission. When the matter was before Harrison SDP reference was made to a letter apparently forwarded to Mr Dee dated 6 August 2010, which referred to correspondence of late February 2010.

PN13

In Mr Dee's stat dec he deposes to the effect that he did not receive the letter of 6 August 2010. Furthermore in my statutory declaration I deal with the fact that I wrote to the Fair Work Commission and asked for a copy of the letter of late February 2010, and I received a response to the effect that that letter could not be located and you'd be aware, Deputy President, from our subsequent dealings before you on this matter that this letter has not come to light.

PN14

THE DEPUTY PRESIDENT: And there are two possible explanations. One is it doesn't exist or the other one is that there was a mistake in the letter of 6 August and it should have said mid-February or early February.

PN15

MR HEATH: That's the observation you made previously and those would seem to be the explanations. I say that the facts support the following proposition. That there was no letter of late February, or if there was once again that was not delivered, in the same way that the letter of 6 August was not delivered. The fact that we have got the missing letter of late February is consistent with Mr Dee's evidence that he didn't receive the letter of 6 August 2010. You look at the other dealings that Mr Dee had with the Fair Work Commission between November 2009 and February 2010 and he was prompt in responding to each item of correspondence that he received.

PN16

The proposition that he received another letter in late February and ignored it, and the proposition that he received another letter in August 2010 and ignored it is, in my respectful submission, unsustainable when you look at the history of his dealings with the Commission prior to that. In my submissions that I've already delivered I've set out the principles that you need to consider, Deputy President, pursuant to section 226 of the Fair Work Act in considering the termination of this expired collective agreement; that it is not contrary to the public interest to do so and it's appropriate to do so taking into account a number of matters including the circumstances and the views of the employees.

PN17

THE DEPUTY PRESIDENT: Mr Heath if I can cut to the chase.

PN18

MR HEATH: Yes.

PN19

THE DEPUTY PRESIDENT: If I accept everything you say, and the difficulty I have is that this matter has gone through more sets of hands than a rugby union ball in the Bledisloe Cup the other night. But anyway.

PN20

MR HEATH: But it has rested in good hands with you, Deputy President, now.

PN21

THE DEPUTY PRESIDENT: Leaving all of that aside and without looking at who has done what, said what and told you to do whatever, the current application as before me although it calls and refers to an earlier application is an application to terminate an enterprise agreement after its nominal expiry date.

PN22

MR HEATH: That's correct.

PN23

THE DEPUTY PRESIDENT: And I accept that was based on other hands in the pie but that's where we sit and that's the matter I have got before me. So to cut to the chase, if we accept that this agreement expired in 2011, in November 2011, is it sufficient to terminate it from that date? So we don't have to delve into how do we revive the application that was originally made, which was an application to terminate it within its expiry date.

PN24

MR HEATH: Can I just take some instructions for a moment?

PN25

THE DEPUTY PRESIDENT: You take some instructions on that.

PN26

MR HEATH: Deputy President, I've sought some instructions from Mr Dee. We would see the merit in what you suggest in terminating it from the nominal expiry date in November 2011. Because there are imponderables as to what happened in 2010.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR HEATH: Which it seems we can't resolve.

PN29

THE DEPUTY PRESIDENT: And there are imponderables about how that file can be reopened by me when I didn't have it in the first place, and the fact that it isn't a reopening, it's a fresh application and although it was initially made under the provision to terminate before the nominal expiry date.

PN30

MR HEATH: Yes.

PN31

THE DEPUTY PRESIDENT: It was then reframed into an application to terminate after the nominal expiry date, because that's when it was being made.

PN32

MR HEATH: And that was done, Deputy President, because we were told by Spencer C that the original application had been closed. Now that's the - - -

PN33

THE DEPUTY PRESIDENT: Yes. And it also seems there was an email from Harrison SDP's chambers saying that it needed to be made under the section dealing with expiration after or termination after nominal expiry date.

PN34

MR HEATH: That's correct.

PN35

THE DEPUTY PRESIDENT: Which you've done. So my view is on what I've got before me now - and if you want to keep telling me why you should get an earlier date, I'm happy to listen to you. But on what I've got before me now I'm prepared to terminate the agreement with effect from its nominal expiry date, which was November 2011.

PN36

MR HEATH: I think that would be acceptable to my client, because the fact is that there are no parties' rights that are going to be adversely affected here.

PN37

THE DEPUTY PRESIDENT: No. Yes.

PN38

MR HEATH: Mr Caldwell is the only employee who remains in the employ of my client.

PN39

THE DEPUTY PRESIDENT: And he consents.

PN40

MR HEATH: He consents.

PN41

THE DEPUTY PRESIDENT: The two whose rights could possibly have been affected have indicated they are no longer affected and have withdrawn their opposition. So on that basis I can't see any reason not to terminate it from November.

PN42

MR HEATH: Yes.

PN43

THE DEPUTY PRESIDENT: Because I am satisfied that this is an exceptional matter and it can be - but I'm more concerned about in the public interest allowing an application to terminate an agreement before its nominal expiry date that's made using an application to terminate it after its nominal expiry date.

PN44

MR HEATH: I know, and all I can say about that is this is a situation, this is a problem which is not of my client's making, if I could say - - -

PN45

THE DEPUTY PRESIDENT: It's not of your client's making and I accept that, and I'm prepared to shoulder the share of the blame. But the share I'm prepared to shoulder is from November 2011.

PN46

MR HEATH: Very well. May I just get some final instructions? That's acceptable to my client, Deputy President.

PN47

THE DEPUTY PRESIDENT: All right. Then I will issue the order terminating the agreement and I'll also issue brief reasons as to why I've taken that somewhat unusual step.

PN48

MR HEATH: Thank you, Deputy President.

PN49

THE DEPUTY PRESIDENT: All right, thank you. Thanks, Mr Dee, and I'm sorry it has been such a long exercise for you.

ADJOURNED INDEFINITELY [2.46 PM]