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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT704
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER GRAINGER
C2002/4325
C2002/4326
THE AUSTRALIAN WORKERS' UNION
and
THIESS ENVIRONMENTAL SERVICES
PTY LIMITED
Applications under section 170LW of the Act
for settlement of dispute (certification of
agreement) re the application of clause 10.4
which provides for additional wage
adjustments during the life of the EBA in
the event that the relevant CPI increases
beyond the pay increase provided for in
the AWU/Thiess Services Victorian Melbourne
Water Contract Enterprise Agreement 2000-2003 and
AWU/Thiess Environmental Services Pty Limited
Victorian South East Water Limited Contract
Enterprise Agreement 2000-2003
MELBOURNE
10.18 AM, THURSDAY, 24 OCTOBER 2002
Continued from 11.9.02
PN73
THE COMMISSIONER: Thanks. Ms Angus.
PN74
MS ANGUS: Thank you, Commissioner. And can I personally just apologise for holding the Commission up this morning. There are quite overcrowded streets due to what I understand might in fact be a bomb scare - - -
PN75
THE COMMISSIONER: Right.
PN76
MS ANGUS: - - - combined with a construction rally. So apologies on my - - -
PN77
THE COMMISSIONER: No, that is fine. I actually hope that there might have been some discussions taking place with the other side about possibly resolving the matter.
PN78
MS ANGUS: Unfortunately, there aren't, Commissioner. But can I just indicate that it might be that we have a new presence in the room and there is an application for leave that therefore needs to be made.
PN79
THE COMMISSIONER: Yes. You think there might be an application for leave, all right. Yes, Mr Winnett.
PN80
MR WINNETT: If the Commission pleases.
PN81
THE COMMISSIONER: I always notice you take your tie off when you come, Mr Winnett. Is that to make Ms Angus feel comfortable, or to make me feel comfortable, or - - -
PN82
MR WINNETT: No. It is to allow me to feel comfortable, actually, yes.
PN83
THE COMMISSIONER: Good. I am pleased.
PN84
MR A. WINNETT: If the Commission pleases, I seek leave to appear on behalf of Thiess Services in relation to this matter.
PN85
THE COMMISSIONER: Yes. Ms Angus, do you have any objection?
PN86
MS ANGUS: Well, I am particularly interested to hear the grounds of the application.
PN87
THE COMMISSIONER: All right. Yes, well then you tell us the grounds, Mr Winnett.
PN88
MR WINNETT: Yes. The grounds are of course in relation to section 42(3)(b), and in particular I understand that I need to seek leave of the Commission. In relation to the subject matter, we would say that it involves interpretation of both the agreement - the interpretation of CPI and importantly, may involve cross-examination although I am yet to determine whether or not I will actually cross-examine both of the witnesses that intend to be called by the union.
PN89
Also in addition to that, there will be evidence that will need to be called in relation to this matter on behalf of the company by Mr - Hugh Campbell. In relation to the special circumstances, we say that it is desirable that the parties be represented. Ms Angus is an experienced and well credentialled advocate and therefore having a legal representative present would not disadvantage the union in that regard. But also the monetary amounts involved are also quite important and do involve technical issues and they are the grounds on which I seek leave on behalf of the company.
PN90
THE COMMISSIONER: Yes, thanks. Ms Angus, what have you got to say?
PN91
MS ANGUS: Well, leave is opposed - - -
PN92
THE COMMISSIONER: Yes.
PN93
MS ANGUS: - - - for one particular reason. And it is a bit of an ironical position being put by the company. One of the major thrusts of their written submission filed in the Commission was precisely the argument that the agreement needs to be understood in its plain, simple English terms and there case, it would appear, seems to ride on an argument about what is actual disadvantage and actual disadvantage is then, so the argument runs, it should be understood in its very plain - in its industrial usage and in its plain English meaning, and here we are now confronted with an argument in order to make the application that there should be lawyers present in what is a non-judicial environment, the application is made on the grounds that suddenly there are special circumstances. That is point one.
PN94
Point two I make the note in passing, somewhat cynically, that the case is an attempt by the company to avoid what we say are its obligations to pay additional moneys to its employees and yet, and I say it with somewhat of a smirk, and yet there is all this movement to invest a whole lot of funds into two lawyers to fight off the attempt to provide that money to employees, which of course we don't - - -
PN95
THE COMMISSIONER: Well, for all we know, Mr Winnett is providing his services for free, Ms Angus.
PN96
MS ANGUS: Well, I would be - I would stand corrected and be delighted to come across a lawyer who would do so.
PN97
THE COMMISSIONER: Well, he doesn't need to disclose that to us. Thanks.
PN98
MS ANGUS: He doesn't. So I probably - perhaps rather than pressing the opposition - - -
PN99
THE COMMISSIONER: Yes.
PN100
MS ANGUS: - - - I note our disappointment. If it please the Commission.
PN101
THE COMMISSIONER: Yes, all right. Thanks, very much, Ms Angus. Yes, I hear what you have to say, Ms Angus. I, however, do believe that I will find it helpful to have the company represented by a solicitor, and if for no other special circumstance reason that that, I am prepared to grant leave. But, Mr Winnett, I make clear, and I am finding I am doing this more often, I make clear that I grant leave so that you can be of assistance to the Commission. I will let you know if I find you are not being of assistance in no uncertain terms. I can assure you that I have done so to others in the past. Thanks very much.
PN102
MR WINNETT: If your Honour pleases.
PN103
THE COMMISSIONER: Yes, I do grant leave. Yes, Ms Angus. I should flag to both of you also that what I would like to do is - well, frankly, I would like to get this over and done with today, so I can hear the case through to 12.30, but I can actually hear it again at 2 o'clock if we run beyond 12.30, if that is of assistance to the parties. I had case on that has been cancelled, so - - -
PN104
MS ANGUS: Certainly, Commissioner. And I can indicate that from our perspective, we see it as quite a straightforward matter.
PN105
THE COMMISSIONER: Yes.
PN106
MS ANGUS: And I would expect, and I understand, although the company seems to have changed its position over the course of the last couple of minutes, but I understand that there is no intention to cross-examine our witnesses - - -
PN107
THE COMMISSIONER: Right.
PN108
MS ANGUS: - - - which will expedite matters, and it is simply a matter from our perspective, of making some submissions in summary to the Commission.
PN109
THE COMMISSIONER: Yes.
PN110
MS ANGUS: And perhaps we should then just start, if it please the Commission, with some housekeeping matters.
PN111
THE COMMISSIONER: And if you will formally tender your submissions and then if we move through the witness statements, and - - -
PN112
MS ANGUS: That would be desirable. So can I indicate that there are some written submissions that were filed in the Commission on 18 October.
PN113
THE COMMISSIONER: Yes.
PN114
MS ANGUS: And I would seek to rely on those today.
PN115
THE COMMISSIONER: And I will mark those A1. You have seen those, Mr Winnett?
PN116
MR WINNETT: Yes.
PN117
MS ANGUS: Can I just - I understand - I recall in fact, that exhibit A1 has already been filed in relation to this matter and it was the CPI figures, so I think we are in fact on A2.
PN118
THE COMMISSIONER: Okay, all right. So this will be A2. Well, I had better locate the earlier A1.
PN119
MS ANGUS: Obviously we would be relying on those CPI - - -
PN120
THE COMMISSIONER: All right, okay. Fine, so A1 was the CPI figures. Mr Winnett, have you got those? No, you weren't here. It was Mr Ironmonger.
PN121
PN122
MS ANGUS: And I would also seek to tender two witness statements.
PN123
THE COMMISSIONER: Yes.
PN124
PN125
THE COMMISSIONER: Mr Coman is here, is he?
PN126
MS ANGUS: He is, Commissioner.
PN127
THE COMMISSIONER: Yes, yes.
PN128
PN129
MS ANGUS: Commissioner, I would also like to rely on a letter sent that was also cc-ed to the Commission to Bob Ironmonger of VECCI who at the time was the applicant on behalf of Thiess Services.
PN130
THE COMMISSIONER: Yes.
PN131
MS ANGUS: And that letter was dated 17 September, and I hope you have a copy of it in your file.
PN132
THE COMMISSIONER: I have got several files relating to this matter, so I will look through each of them. It is not on the first one.
PN133
MS ANGUS: I can actually hand you another copy.
PN134
THE COMMISSIONER: I have found A1, so that is a good start. No, I don't have it, but I have got A1, so that is - - -
PN135
MS ANGUS: I have a copy which I am assuming is identical.
PN136
THE COMMISSIONER: Yes, A1, I note is a publication of the Australian Bureau of Statistics dated 24 July 2002, Consumer Price Index.
PN137
PN138
MS ANGUS: And rather than just repeating myself today, Commission, I would seek to sort of incorporate essentially the arguments put in both those written submissions and that letter into our submissions today.
PN139
THE COMMISSIONER: Yes.
PN140
MS ANGUS: No, I understand it is not the case that there is a desire to cross-examine the two witnesses before - the witnesses have prepared statements for today, Commissioner, but - - -
PN141
THE COMMISSIONER: Yes.
PN142
MS ANGUS: - - - can I indicate that I have just heard, just before about to commence today, that the advocate for Thiess Services may in fact be seeking to rely on a witness themselves and they haven't forwarded - - -
PN143
THE COMMISSIONER: Yes, yes. I rang them this morning, or my associate rang them this morning, to say that whilst they had objected - they had raised objections to some matters from you and I had said, look I was planning - not going to support their objection but that they had indicated they might want to put a witness on and I was happy for them to put a witness on at late notice. Thanks.
PN144
MS ANGUS: Well, can I indicate that I haven't received a witness statement, which would be - - -
PN145
THE COMMISSIONER: No, and I haven't either.
PN146
MS ANGUS: - - - the normal course of events.
PN147
THE COMMISSIONER: Yes, that is right.
PN148
MS ANGUS: So, on that basis, then we would reserve our right to then seek additional evidence from Mr Christopher O'Boyle, who is the employee of that same workplace.
PN149
THE COMMISSIONER: Yes, yes.
PN150
MS ANGUS: And it might be more appropriate to proceed on the basis of that witness evidence first before I move into submissions. If that is an acceptable - - -
PN151
THE COMMISSIONER: Of Mr Winnett's witness first?
PN152
MS ANGUS: Well, if that is how the advocate from Thiess - - -
PN153
THE COMMISSIONER: Well, can I suggest that we get your witnesses on and adopt their witness statements.
PN154
MS ANGUS: Certainly.
PN155
THE COMMISSIONER: And then they can stand down and you can finish, and Mr Winnett can call his witness, and then I am happy for Mr O'Boyle to be able to be recalled if necessary, if matters arise that he needs to be - that you want to recall him for. How is that?
PN156
MS ANGUS: Certainly, Commissioner.
PN157
THE COMMISSIONER: Good.
PN158
MS ANGUS: In which case I call Peter John Coman.
PN159
THE COMMISSIONER: Yes, call Peter John Coman. Yes, Mr Winnett?
PN160
MR WINNETT: Yes. In relation to this matter, I would just like to - for the purposes of transcript - - -
PN161
THE COMMISSIONER: Yes.
PN162
MR WINNETT: Perhaps get the objections that we had in relation to the evidence and the witness statements of both Mr Coman and Mr O'Boyle, at least so that they are formally on transcript.
PN163
THE COMMISSIONER: That is fine, yes.
PN164
MR WINNETT: Basically, the - - -
PN165
THE COMMISSIONER: Yes, sit down, Mr Coman. We will come to you in a moment.
PN166
MR WINNETT: The respondent's objections in relation to both the witness statements and the evidence that is about to be given by the two witnesses are basically primarily three issues. The first is that it is submitted by the respondent that clause 10.4 is not ambiguous and that in the circumstances extraneous materials are not necessary to understand what clause 10.4 means. The second point is that the statements contain a substantial amount of hearsay.
PN167
And then the third and final point is that it is submitted on behalf of the respondent that in respect to a lot of the statements that are made by Mr Coman and also by Mr O'Boyle, that the statements that they make are irrelevant in as much as where they say, Mr Fenby told me this is what the clause meant. What Mr Fenby told them a clause means and what the clause means, are two separate issues and we are here to deal with the other one, which is what the clause actually means, not what they say the clause means. And that is my submissions in relation to the objections we have to the evidence of both of these witnesses.
PN168
THE COMMISSIONER: Yes. Thanks Mr Winnett. I note those objections. Ms Angus, I don't need to hear you on them. As to their relevance and as to whether it is hearsay, well, I will just have to take that into account when I am looking at all of the material, but I simply note it may well be that I do find that it is both useful and relevant and helpful to me in making a decision, but I will bear those objections in mind. Thanks, Ms Angus.
PN169
MS ANGUS: So I call Peter John Coman.
PN170
THE COMMISSIONER: Yes. Mr Coman, just come back to the box, thanks. Do either of you have objections to witnesses being in the room whilst a witness is giving evidence. It is not an - I am happy to go with what you people - how you and Mr Winnett feel, Ms Angus.
PN171
MS ANGUS: I don't know that I object necessary - - -
PN172
MR WINNETT: No, and I don't either, to be honest, yes.
PN173
MS ANGUS: No objections.
PN174
PN175
MS ANGUS: Good morning, Peter?---Good morning.
PN176
Do you mind stating again, for the record, your full name and place - address?---Peter John Coman. I live at 91 McLeod Road, Carrum.
PN177
And have for - this matter before the Commission today, have you prepared a witness statement?---Yes, I did.
PN178
Can I hand the officer - - -
PN179
THE COMMISSIONER: Yes.
PN180
MS ANGUS: Can you just take a minute to run your eye over that, Mr Coman. Do you recognise that document?---Yes.
PN181
And is that true in every detail?---Yes.
PN182
Yes. Okay. I have nothing further, actually, at this stage.
PN183
THE COMMISSIONER: Yes, fine. Thanks very much. Good. I note that Mr Coman has adopted his written statement. Mr Winnett, any questions?
PN184
MR WINNETT: Yes, only a few minor ones.
PN185
**** PETER JOHN COMAN XXN MR WINNETT
PN186
MR WINNETT: If I can take you to point 4 of your witness statement, do you know a Mr Bob Brownley?---Yes.
PN187
Was he involved in the negotiation from the company side?---No.
PN188
He wasn't?---No. He just had a few things to say out of the few meetings but he never really attended all the meetings with - - -
PN189
THE COMMISSIONER: Yes, well, I suppose I might say, Mr Coman, the issue is then does that constitute involvement, but what I might make of that, I am really not sure. Thanks, yes.
PN190
MR WINNETT: No, I can understand, yes.
PN191
THE COMMISSIONER: You said he made some comments at some meetings, he was at some - - -?---At some of the union meetings.
PN192
- - - meetings and he made some comments, yes, all right, okay, fine. That may constitute an involvement but what that means, I don't know.
PN193
MR WINNETT: In relation to point 8 of your witness statement that you have got with you - - -
PN194
THE COMMISSIONER: Sorry, Mr Winnett. Can I just - what I take you to be saying, Mr Coman, is that he didn't have a significant involvement - - -?---No.
PN195
- - - in the negotiations? He wasn't one of the principal - - -?---No.
**** PETER JOHN COMAN XXN MR WINNETT
PN196
- - - people involved from the company side in negotiations, is that right?---That is correct.
PN197
Yes. Thanks Mr Winnett.
PN198
MR WINNETT: From your perspective, who were the principal people involved from the company's perspective?---There was - they are both gone now. One was - Russell Brereton was one, and Mick Confoy.
PN199
If I could take you to point 8 where you say:
PN200
In the end Ross Fenby came up to me - came up with the idea of the top-up payment.
PN201
Could you explain to us, did he explain to you how the top-up payment would work?---Yes. If the CPI ran higher. The reason for it was if we were disadvantaged in any way, that would be a top-up.
PN202
Right. Would the top-up be prospective or retrospective?---I don't know what you mean by that.
PN203
Sorry. If you were disadvantaged at all, would the disadvantage - would a payment to compensate you for the disadvantage go into the future or go in - or be based on what happened in the past?---Well, if we were disadvantaged, it would just be - it is going to be like another pay rise - go into our pay.
PN204
So into the future?---From when it would come up.
PN205
All right. Was it discussed in detail between you and Mr Fenby as to the operation of that particular clause?---No, it wasn't.
**** PETER JOHN COMAN XXN MR WINNETT
PN206
Did you read that clause prior to voting on the agreement? You did read the clause?
PN207
THE COMMISSIONER: You don't - Mr Coman, don't just nod?---Yes.
PN208
The transcript taker can't record a nod?---Sorry about that.
PN209
MR WINNETT: Did you read the clause before?---Yes, we did.
PN210
Yes. That specific clause 10.4? Did you discuss clause 10.4 - or who did you discuss 10.4 with?---It was with - everybody was in the meetings and the company was sort of arguing about it a lot, and they didn't want to put it in there but because the EBA was going on and on and on, it took a long time to get it up and running. In the end they agreed to leave that clause in because it wasn't going anywhere.
PN211
No further questions.
PN212
THE COMMISSIONER: Good, thanks. Anything in follow up, Ms Angus?
PN213
PN214
MS ANGUS: Mr Coman - I am not used to calling you Mr Coman. You mentioned in response to a question that the top-up pay would go into your pay for the next year?---Yes.
PN215
Yes, that is what you mentioned. Did you mean though that the - it would be to compensate for future disadvantage or were you - was it - or did you mean that it was to compensate for the disadvantage from the year before?---Well, I am - - -
**** PETER JOHN COMAN RXN MS ANGUS
PN216
And if you don't know the answer, then it - - -?--- - - - not quite sure what you mean, but the idea of it was if the CPI was higher, it was a top-up. It was to go into our wage for every week after that - just keep on rolling on.
PN217
THE COMMISSIONER: But, to cover what, the previous year, or the present year?---The previous year.
PN218
MS ANGUS: Yes. Thank you. I have no further questions.
PN219
PN220
THE COMMISSIONER: Are you calling Mr O'Boyle now?
PN221
MS ANGUS: I am, Commissioner. I - - -
PN222
PN223
MS ANGUS: Mr O'Boyle?---Yes.
PN224
Can you again state your full name and address for the record please?---Christopher O'Boyle, 24 Kerry Street, Langwarrin.
PN225
And did you have reason to prepare a witness statement for the proceedings today?---Yes, I did, yes.
PN226
Could I pass the witness a copy of that statement?
PN227
THE COMMISSIONER: Yes.
PN228
MS ANGUS: Just run your eye over that and tell me, is that your statement?---Yes, that is true, yes.
PN229
And is it true in every particular?---Yes.
PN230
I have nothing further at this stage, Commissioner.
PN231
PN232
MR WINNETT: Yes. In relation to the negotiations - - -?---Yes.
PN233
Did you have cause to read clause 10.4 prior - - -?---Yes.
**** CHRISTOPHER O'BOYLE XXN MR WINNETT
PN234
- - - to being voted on?---Yes, I did.
PN235
All right. In your discussions with Mr Fenby, what did Mr Fenby tell you was the purpose of clause 10.4?---The purpose of the clause was that we wouldn't lose any money, we would - that if inflation or CPI went high, our pay rise would be topped up to equal that so we wouldn't be under the CPI.
PN236
And would that occur - sorry - no further questions.
PN237
THE COMMISSIONER: All right, fine. Thanks. Anything in follow up, Ms Angus?
PN238
MS ANGUS: No, Commissioner.
PN239
PN240
MS ANGUS: Can I just indicate - - -
PN241
THE COMMISSIONER: Yes.
PN242
MS ANGUS: - - - though that depending on - given that we are in a slightly prejudicial position because we haven't seen the witness statement on which the other parties intend to rely - - -
PN243
THE COMMISSIONER: Yes.
PN244
MS ANGUS: - - - can I perhaps indicate that we would prefer that Mr O'Boyle just be stood down temporarily and - - -
PN245
THE COMMISSIONER: Yes. It is the case with all the witnesses, in the event that they need to be recalled.
PN246
MS ANGUS: If it please the Commission.
PN247
THE COMMISSIONER: Yes. You may be recalled, Mr O'Boyle. Anything further, Ms Angus?
PN248
MS ANGUS: So we have no other witness evidence to - - -
PN249
THE COMMISSIONER: Yes, all right. So you are relying on your submission and those two witness statements - - -
PN250
MS ANGUS: We are relying on two sets of written submissions, the Consumer Price Index - - -
PN251
THE COMMISSIONER: Yes.
PN252
MS ANGUS: - - - ABS data, and two witness statements. If it pleases the Commission.
PN253
THE COMMISSIONER: Yes. I just - - -
PN254
MS ANGUS: And aside from some closings and concluding submissions that I would make orally in terms of both jurisdiction and merit, that essentially concludes the union case.
PN255
THE COMMISSIONER: Yes, yes. And the two documents that I have before me are the AWU Thiess Services Victorian Melbourne Water Contract Enterprise Agreement 2002-2003, and then AWU Thiess Environmental Services Pty Limited Victorian South East Water Limited Contract Enterprise Agreement 2000-2003.
PN256
MS ANGUS: That is right, Commissioner. And I intend to both in written submissions and orally refer to them as either the South Eastern Water Contract or the Melbourne Water Contract.
PN257
THE COMMISSIONER: Yes. Well, I might just mark them to that - so there is the Melbourne Water Contract and the South East Water Contract. Melbourne Water Contract is agreement 805614 on print 901622 and the South East Water Contract is - the mark I have got on it is A4687 DOC T4654. Do you have any problem with that, Mr Winnett?
PN258
MR WINNETT: No, your Honour.
PN259
THE COMMISSIONER: Thanks. Well, I can hear from Mr Winnett now then - - -
PN260
MS ANGUS: Yes, Commissioner.
PN261
THE COMMISSIONER: Yes, thanks very much. Mr Winnett.
PN262
MR WINNETT: If the Commission pleases. If I can please call Mr Campbell to stand to give evidence.
PN263
THE COMMISSIONER: Yes. Mr - which Campbell?
PN264
MR WINNETT: Hugh Campbell.
PN265
PN266
THE COMMISSIONER: I am worried that these gentlemen have got their accents - do I detect Mr O'Boyle has got a Scottish accent?
PN267
MR O'BOYLE: Yes, I certainly have.
PN268
THE COMMISSIONER: Mr Campbell has an Irish accent?---No, not quite. It is the same as Mr O'Boyle's.
PN269
It didn't sound quite - - -
PN270
MS ANGUS: A Scottish - different clan though.
PN271
THE COMMISSIONER: Yes, thanks. All right?---Different part of Glasgow.
PN272
But that is not a matter relevant to the proceedings. It is a matter that I take interest in.
PN273
MR WINNETT: Next time I will wear my tartan tie.
PN274
THE COMMISSIONER: Yes, thanks.
PN275
MR WINNETT: Mr Campbell, could you please re-state your name and your address for the Commission, thanks?---Hugh Kelly Campbell, 8 Blanton Drive, Mulgrave.
PN276
And are you an employee of Thiess Services?---Yes.
**** HUGH KELLY CAMPBELL XN MR WINNETT
PN277
How long have you been employed for?---Nine years.
PN278
All right. And what is the position you currently hold?---Manager, maintenance services.
PN279
And what was the position that you held at the time that the certified agreement relating to your part of the business was negotiated?---Manager of maintenance services.
PN280
Right. Which is the certified agreement which relates to your part of the business?---The Melbourne Water.
PN281
All right. In relation to the Melbourne Water side of the business, who was involved in the negotiations from the company's perspective?---Myself.
PN282
Yes. Anybody else?---No.
PN283
No. In relation to the union's negotiations, who were you dealing with from the union side?---Ross Fenby and Chris O'Boyle.
PN284
Do you have any knowledge of who were the negotiating parties in relation to the South East Water contract?---It was my understanding it was the project manager, Russell Brereton.
PN285
Yes?---And Bob Brownley - - -
PN286
Right?--- - - - were the main negotiators.
**** HUGH KELLY CAMPBELL XN MR WINNETT
PN287
In your knowledge, to what extent did Mr Brownley have dealings with the union?---To my knowledge, Mr Brownley would have been across all the decisions made in regards to that agreement.
PN288
Although the agreements are separate, from the company's perspective, were they dealt with collectively?---No, they weren't dealt with collectively, but historically there has been an understanding that the people in the Melbourne Water contract wouldn't have any less than the South East Water contract.
PN289
All right. If I could take you to clause 10.4, which is the clause that we are here trying to interpret today, can you recall the circumstances surrounding the placement of that clause in the certified agreement?---The general discussion was the uncertainty of the introduction of the GST and the impact it would have as a one-off spike and the CPI. Our negotiations were along the lines of the tax breaks that would be happening around about that time and over the life of the agreement, we would expect the CPI to flatten out and come back to where it was at the time of negotiations, round about - between 2 and 3 per cent.
PN290
In terms of - was it a suggestion - or who suggested the placement of 10.4 in the certified agreement?---As far as I know, it was the union.
PN291
In relation to clause 10.4, if we assume that a payment is required to be made in relation to an actual disadvantage, would the payment be made based on the CPI figure for the previous year and be paid into the future, or would it be based on the CPI figure for the previous year and back-dated for that year?---In my experience, in other agreements, where there has been a CPI clause in there, it has been paid ongoing from that year. It hasn't been paid retrospectively.
PN292
Nothing further, your Honour.
**** HUGH KELLY CAMPBELL XN MR WINNETT
PN293
PN294
MS ANGUS: Mr Campbell, you have had experience, then, with other CPI clauses, have you?---I have, yes.
PN295
Can you tell the Commission about those - that experience?---Yes. It was quite clear - in the clause - within the document, it stated quite clearly there would be a CPI rise, and the wage rises would match the CPI. There was - - -
PN296
So, in your view, it is not unusual for an agreement to contain a rate of pay attached to the CPI figure?---I guess it is not unusual.
PN297
It is not unusual?---In the experience that I have and the particular agreement I had, we had a CPI clause in there but that was specific to the CPI.
PN298
And it is also your view that clause 10.4 would, under certain situations, under certain circumstances, could possibly provide for an additional payment to employees, given certain situations?---Given certain situations, and everything taken into consideration, that could be the case. On the other hand, it could be the case that the company may have overpaid as well, we were looking from that perspective, as well.
PN299
Okay. But it was the intention of Thiess in negotiating this agreement that if certain conditions, and you say tax, CPI - if certain conditions were fulfilled, it was the intention to Thiess, having met those conditions, if there were still disadvantage, to pay an additional amount, is that correct?---There was - if you look at the clause itself it says that the Thiess Agreement to confer with the parties.
[10.48am]
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN300
THE COMMISSIONER: Could you say that again, Mr Campbell?---In the - in that clause there is an agreement that the parties will confer if there is a perceived - or an actual - sorry, an actual disadvantage to either party.
PN301
MS ANGUS: So can I ask you a very particular question and I just remind you you are under oath here, Mr Campbell. And the question is then, when negotiating this clause was it your view on behalf of Thiess that the clause required you to pay an additional amount or just to talk about paying an additional amount?---In my view it was to confer and not talk about an additional amount, but actually talk about how it affected the overall EBA agreement.
PN302
THE COMMISSIONER: So is what you are saying, Mr Campbell, that what this type of clause - because I think what we are talking about is your broader experience. Now, I think Ms Angus is talking about his broader experience, or are you asking him specifically about this agreement?
PN303
MS ANGUS: No, I am asking specifically, first of all, about - well, do you want to finish your line of questioning, Commissioner?
PN304
THE COMMISSIONER: No, well, I am just wanting to know what your question - whether your question was about his broader experience of dealing with these sorts of clauses or this specific clause?
PN305
MS ANGUS: This particular clause.
PN306
THE COMMISSIONER: All right, that is fine.
PN307
MS ANGUS: And negotiating this agreement, Mr Campbell.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN308
THE COMMISSIONER: Yes, so in regard to this particular clause then, do you say it was an agreement to confer to achieve an agreement or an agreement?---My understanding of the clause was to confer to reach an amicable agreement at the end.
PN309
MS ANGUS: Confer with who?---With the union - the parties involved.
PN310
And what about amongst management, was there any discussion amongst other people working for Thiess?---In regards to what?
PN311
In relation to this clause?
PN312
THE COMMISSIONER: What do you mean, Ms Angus, in - - -
PN313
MS ANGUS: Do you have the authority to make decisions on behalf of Thiess in enterprise negotiations?---At certain levels I do, yes.
PN314
THE COMMISSIONER: In regard to this clause?---In regards to this clause, no.
PN315
MS ANGUS: So who is the person from Thiess who is the person to talk to about this clause?---Sorry, you are losing me in regards to when you say this clause. Do you mean the input of this clause or what are you talking - or the interpretation of this clause?
PN316
Well, let us go - we will make it simple.
PN317
THE COMMISSIONER: Or the implementation of the process that the clause - - -
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN318
MS ANGUS: We will go back to the negotiating process?---Yes.
PN319
In the negotiations process did you - your involvement in those negotiations, was it with the delegated authority of the company?---Yes.
PN320
So you were the person who was making bottom line decisions about what could or could not be contained in the enterprise agreement?---Yes, yes.
PN321
Including this clause?---Including that clause, yes.
PN322
Okay. And was it your understanding then on behalf of the company that this clause under certain situations - we can return to those certain conditions because we are in disagreement?---Mm.
PN323
But under certain conditions that you have outlined this clause may - - -
PN324
MR WINNETT: I object to this question, it has already been asked and answered.
PN325
THE COMMISSIONER: Well, I am happy for Ms Angus to explore it further.
PN326
MS ANGUS: Thank you, Commissioner.
PN327
THE COMMISSIONER: Yes. It may be of some considerable relevance.
PN328
MS ANGUS: This clause may provide a process which at the end could increase employees' wages?---To answer the question the clause is specific when it says to confer.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN329
How do you understand the terms "removing any actual disadvantage", Mr Campbell?---I think the parties would have to provide evidence there was actual disadvantage and then confer.
PN330
And is it the case then that if employees or the union were to come to you and convince you, and you were totally persuaded that there was actual disadvantage in accordance with your understanding of this clause, does this clause then enable an additional payment to remove actual disadvantage?---This clause enables us to confer.
PN331
THE COMMISSIONER: Confer for what?---To confer in regards to the interpretation of the clause and the interpretation of the, I guess, the argument you are putting forward.
PN332
Well, the clause says to confer with a view to removing any actual disadvantage. What did you think those words meant? Sorry, Ms Angus?---My interpretation was over the life of the agreement, taking everything into consideration which was the tax breaks or the tax relief and the CPI over the life of the agreement, where the employees in actuality would be at the end of the life of the agreement.
PN333
MS ANGUS: Did you discuss the issue of taxation levels - - -?---Yes.
PN334
- - - during the negotiations?---Yes, yes.
PN335
Did you - what efforts did you make to check out what the changes in taxation policy was planned to be by the Howard Government?---We were the same as everybody else at that point in time. There was uncertainty in regards to - as to what the taxation breaks would be. We were uncertain in regards to what the CPI would be.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN336
Did you - what efforts did you make? My question was what efforts did you personally make to find out what the changes in taxation policy were?---I conferred with my management - my senior management in regards to what they may be.
PN337
In relation to taxation?---In relation to taxation.
PN338
Because it is a matter of public record that in fact the taxation changes had already been proposed?---Yes, look, I honestly don't know in regards to what it was. It was two years ago so I really can't - I can't comment on that.
PN339
So you made no effort to establish what those changed taxation policies were?---Not right down to the dollar per person, no.
PN340
And if, as you say, you talked about tax during those negotiations, why didn't you include reference to taxation in this clause?---That is an excellent point. In hindsight we should have. We should have contained reference to the GST as well but it wasn't put in there.
PN341
So you acknowledge that - well, there is clearly no reference to taxation in this clause?---Or of GST I don't think, is there?
PN342
THE COMMISSIONER: Well, GST is a tax?---Yes.
PN343
MS ANGUS: What do you know about measures of consumer price index?---In what regard?
PN344
How would you go about finding out what the CPI is at a given moment?---I ring up the Bureau of Statistics.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN345
And is there any doubt in your mind what the words "relevant consumer price index variations" mean?---No.
PN346
Was there any discussion about what those words meant?---I am not certain if there was, no.
PN347
But you accept that to find the relevant consumer price index is, can I say, an objective measure?---To find it, sorry.
PN348
To find - if one - - -
PN349
THE COMMISSIONER: Well, what - Mr Campbell, what the CPI says - - -?---Yes.
PN350
- - - is a - I mean, you ring up the Bureau of Statistics - - -?---Yes.
PN351
- - - they send you a bit of paper?---That is right, yes.
PN352
And it says what it says?---Yes, that is right.
PN353
That is objective, isn't it?---Sure, yes.
PN354
Yes. Sorry, Ms Angus, can I just ask, did you flag in the discussions with the union that issues about taxation of any kind might be taken into account in this issue of considering disadvantage or actual disadvantage?---Yes. We discussed that with Mr Fenby and it was a total package in that regard.
PN355
Would you recall what was said to Mr Fenby to the best of your recollection, given that you were involved?---To the best of my recollection was nobody knew in regards to - - -
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN356
I am not interested in what nobody knew?---Sorry.
PN357
I am interested in what was said?---Okay. Well, the discussions were that there was a certain amount of uncertainty in regards to 12 months down the track.
PN358
Yes, but why was there uncertainty? Was that to do with changes in the taxation?---Because of the introduction of the GST.
PN359
All right, okay?---That is really what it was.
PN360
I need to understand that, yes?---And the clause I think mentions the CPI. It doesn't mention the GST.
PN361
Yes?---But the whole general discussion was around the GST and what the CPI and the tax breaks might do, going forward from there.
PN362
Yes, you say it is essential to the understanding of this clause that it was negotiated in the environment of the introduction of the Goods and Services Tax?---That is correct.
PN363
And issues to do with changes in taxation; is that correct?---That is correct, it was the whole introduction of GST.
PN364
And any potential impact flowing from - on CPI flowing from the introduction of those various changes - - -?---That is correct.
PN365
- - - in the country's taxation arrangements; is that correct?---That is correct, yes.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN366
Fine. Yes, thanks.
PN367
MS ANGUS: Then why, Mr Campbell, didn't you include reference to, for example, GST induced inflation?---Yes, and in hindsight we should have done that because there was an expectancy that it would be a one off spike for the introduction of the GST and as I understand it should that have been ongoing, then that we would have conferred with the union then.
PN368
And how many years' experience did you say that you had in this capacity?---Which capacity?
PN369
In your capacity as a manager?---Yes, I didn't say but I have - - -
PN370
THE COMMISSIONER: The manager handling these sorts of issues?---Yes, I have negotiated a number of EBAs now, probably three or four.
PN371
MS ANGUS: Can you give a rough indication?---About three or four.
PN372
And was this EBA - who had carriage of the document - of the working document, the draft?---I believe that that was South-East Water.
PN373
THE COMMISSIONER: But who at South-East Water?---It would have been Mr Brereton or Brownley.
PN374
MS ANGUS: But it was the company, Thiess, in some manifestation - it was the company that was drafting the document, making amendments, wording clauses, correct?---In conjunction with the union.
PN375
In conjunction with - - -?---Well, as things were negotiated they would change clauses.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN376
Okay. But who had control of the soft copy of the document?---The soft copy?
PN377
THE COMMISSIONER: At the company's end?---At the company's end it would have been Mr Brereton and Mr Brownley and myself.
PN378
MS ANGUS: So it is actually the case that this clause in a technical and an administrative sense was drafted by the company?---I can't answer that, I honestly don't know. I was under the understanding - - -
PN379
THE COMMISSIONER: Mr Campbell, I think from what you have said, and indeed from my knowledge of how these processes go, that the company has to accept ownership of the wording of the clause; don't you think that is right?---I - from the previous witness you will remember that the clause of the CPI rise was put in there at the insistence of Mr Fenby.
PN380
MS ANGUS: What did you think Mr Fenby thought the clause intended?---I don't know.
PN381
MR WINNETT: I object.
PN382
THE COMMISSIONER: Yes, yes, that is fine?---I don't know, I wouldn't have a clue.
PN383
MS ANGUS: So, I have nothing further of this witness, Commissioner.
PN384
THE COMMISSIONER: That is fine. Can I just say my point, Mr Campbell, is that whoever originally drafted that clause, you accept that the company took over ownership of the clause in its responsibility for carrying the drafting of the document?---Yes.
**** HUGH KELLY CAMPBELL XXN MS ANGUS
PN385
Is that not right?---That is correct, but I make the point - - -
PN386
For good or ill?---Yes, but I make the point it was done in conjunction with the negotiation of Mr Fenby,
PN387
Yes, I fully understand that, but the company I think can't turn around and say somehow or another it doesn't own the clause?---Oh, no, no, I am certainly not saying that, Commissioner.
PN388
PN389
MR WINNETT: You said that you have had a lot of experience in relation to drafting agreements and participating in the drafting of agreements, but also in relation to CPI clauses. You have seen clause 10.4?---Yes.
PN390
And in your experience you have looked at other clauses that have attempted to allow for CPI to be taken into consideration?---Yes.
PN391
What are the differences between those clauses and this clause?---Well, the difference is that the clauses which I have experience with are very specific. They are very specific and their wording is specific. There is no ambiguity attached to it. Their wording is, "Pay rises shall be in line with CPI."
PN392
Is that what this says?---This doesn't say that to me.
PN393
MS ANGUS: Is that not a matter for submission rather than for question?
**** HUGH KELLY CAMPBELL RXN MR WINNETT
PN394
THE COMMISSIONER: Yes, well, I am interested to hear - I am happy to hear his view of what it says.
PN395
MR WINNETT: Yes, to - and also to the extent that - - -
PN396
THE COMMISSIONER: He has been giving his view to you, he can give it to Mr Winnett.
PN397
MR WINNETT: And also to the extent that those same issues have been canvassed by Mr Coman and also Mr O'Boyle.
PN398
THE COMMISSIONER: No, that is fine. That is fine.
PN399
MR WINNETT: I think the question that I posed was - actually, now I can't remember the question I posed. I apologise for that.
PN400
THE COMMISSIONER: No, well, your question I think, Mr Winnett, was really you dealt with other clauses that have specifically addressed the taxation issues and how does that - - -
PN401
MR WINNETT: Or does this clause do that?
PN402
THE COMMISSIONER: Yes?---This clause to me doesn't address that issue.
PN403
MR WINNETT: You also said that - - -
PN404
THE COMMISSIONER: It is silent on the issue of taxation; you acknowledge that, Mr Campbell, don't you?---Yes, I do, yes.
**** HUGH KELLY CAMPBELL RXN MR WINNETT
PN405
MR WINNETT: And I think the question is whether it was silent on the issue of the CPI increase?---From my interpretation of that clause it was over the life of the agreement and if there was any actual disadvantage - actual disadvantage taken of the factors, then the parties would confer.
PN406
THE COMMISSIONER: Yes, but, Mr Campbell, it is not silent on the relevance of the Consumer Price Index - - -?---No, it is not.
PN407
- - - to the equation?---No, it is not.
PN408
The Consumer Price Index is clearly an objective criteria which is referred to?---Yes.
PN409
Is that right?---Yes, it is.
PN410
And GST and income tax are nowhere referred to?---Yes, yes.
PN411
Is that correct?---Yes.
PN412
Yes, thanks.
PN413
MR WINNETT: You said earlier that GST probably should have been put into the clause?---Yes.
PN414
Along with a number of other things. Those aside, do you think that - sorry, does the clause on your reading say that if there is a difference between the wage increase and CPI, that that has to be paid?---It doesn't say that.
**** HUGH KELLY CAMPBELL RXN MR WINNETT
PN415
No further questions.
PN416
THE COMMISSIONER: Yes, thank you. I have a question, Mr Campbell. Do you know what the financial impact to the company would be of acceptance of the union's position on this matter? Has a calculation been done of the cost?---No, not at this point, not to my knowledge.
PN417
Is it possible to do that calculation?---Yes, it is.
PN418
Yes, how long would it take to do that?---Probably about an hour or so.
PN419
Yes. Ms Angus and Mr Winnett, I might actually find it helpful to know what the cost impact is of the two interpretations of the clause. If the company could do that calculation I would find that helpful.
PN420
MR WINNETT: The company has done that calculation.
PN421
THE COMMISSIONER: Yes.
PN422
MR WINNETT: And I might need to call somebody to confirm that.
PN423
THE COMMISSIONER: Yes.
PN424
MR WINNETT: But for South-East Water it is estimated at $3.5 million.
PN425
THE COMMISSIONER: Yes. Over what period?
**** HUGH KELLY CAMPBELL RXN MR WINNETT
PN426
MR WINNETT: I think over the life of the agreement.
PN427
MR ROSENGARTEN: Yes.
PN428
THE COMMISSIONER: Yes, over three years.
PN429
MR WINNETT: Yes.
PN430
MR ROSENGARTEN: It went back to - - -
PN431
THE COMMISSIONER: Don't worry, Mr Winnett will call you to give evidence.
PN432
MR WINNETT: And 830,000, but I might actually call Terry Rosengarten to address those issues.
PN433
THE COMMISSIONER: Yes, all right. Ms Angus, I would find that helpful, frankly, and it may be that it is useful for you as well to be able to cross-examine a witness who gives evidence to that effect. All right. Anything further of Mr Campbell? No. All right. Thanks very much, Mr Campbell. Yes, you can stand down.
PN434
MR WINNETT: If I could call Mr Terry Rosengarten to address the issue the Commission has asked.
PN435
PN436
MR WINNETT: Would you please state your name and address for the record, thanks?---Terence Ian Rosengarten, 17 Gem Road, Kenmore, Queensland.
PN437
As part of preparations for the submissions did you undertake any calculations in relation to how much it would cost the company if the union's submission was accepted?---Yes, it was a rough calculation to just get an idea of what sort of figure we would be up for and - - -
PN438
Could you please tell the Commission what that estimation was?---Actually, I have misled you with earlier figures. I am just trying to recall - - -
PN439
THE COMMISSIONER: This is where you are giving your evidence though?---Yes.
PN440
This is where accuracy matters most?---Okay. As I said, it was an approximate figure just to get myself - my head around what sort of costs we were talking about here. I think for the first year it would have been about - - -
PN441
Which is this for?---2000-2001.
PN442
2000-2001 and for which agreement?---This is for South-East Water and Melbourne Water.
PN443
For both?---Yes. We had estimated - what I gave you earlier was the total wages bill instead of the increase but - - -
PN444
Did sound a lot I must say, but anyway go on, Mr Rosengarten?---Sorry, Mr Commissioner. It should have been 165,500 approx.
**** TERENCE IAN ROSENGARTEN XN MR WINNETT
PN445
For both?---2000-2001.
PN446
Yes?---And then 2001-2002 about 183,500.
PN447
Yes, for both?---Yes. So adding them up. But as I said it was more just to get a ballpark and - sort of idea.
PN448
So that is 248,500 for those two years?---No, 300.
PN449
Sorry, 300, yes?---Yes.
PN450
MR WINNETT: Yes, it is 349.
PN451
THE COMMISSIONER: Good. Thanks.
PN452
MR WINNETT: If the Commission pleases.
PN453
THE COMMISSIONER: Yes. Do you have any paperwork to do with those calculations that would be able to be tendered?---Not really. I remember I just quickly wanted to get an idea of the sorts of figures.
PN454
No, that is fine. Ms Angus, do you want a minute before you - just to take that on board, thanks.
PN455
**** TERENCE IAN ROSENGARTEN XXN MS ANGUS
PN456
MS ANGUS: What was the total wages bill that you referred to?---The figure included super and wages.
PN457
And that total figure was?---For South-East Water was 3.9 and for - - -
PN458
Well, you have given us combined figures in relation to the so called top up, so can you give us combined figures for the total labour costs for both South-East Water and Melbourne Water?---Well, actually, I gave you break-up figures for both. It was 165 - - -
PN459
THE COMMISSIONER: No, you told us - - -?---Sorry, I get where you are at now, sorry.
PN460
Yes?---The total figure would be, without a calculator, about 4.7 for South-East and Melbourne 2000-2001 and for 2001-2002 total wages, super, about 4.3.
PN461
For both companies?---Yes, both companies.
PN462
So there is 4.7 in - - -?---2000-2001 is the total wages.
PN463
2000-2001?---And 1. And then 2001-2002, 4.3.
PN464
For both companies?---Yes.
PN465
MS ANGUS: So can I just confirm that I have done the maths correctly. So the total labour costs for both companies over the two year period is about 9 million?---That would be about, yes, based on my figures, yes.
**** TERENCE IAN ROSENGARTEN XXN MS ANGUS
PN466
And the total - I can loosely refer to it - the top up payment put by the union is about 349,000 for the two year period, both sites?---The claim, yes, refers to.
PN467
Which amounts to a wage increase of, by my calculation, 3.8 per cent?---Well, you have got the calculator. I haven't got a calculator so I couldn't confirm that off the top of my head.
PN468
I have nothing further, thanks.
PN469
THE COMMISSIONER: 3. - - -?---8.
PN470
Sorry, Ms Angus, I am - 3.8, yes. So it is 3.8 over the life of the - is it over the life of the - - -
PN471
MS ANGUS: Over the two years that Mr Rosengarten has outlined he has based his calculations on.
PN472
THE COMMISSIONER: Good, fine. Anything further, Mr Winnett?
PN473
MS ANGUS: Can I actually - sorry, can I just ask one more question. Are you aware of the average union pay increase for 2000 and 2001 across Australia?---Oh, the average across Australia, no.
PN474
In Victoria have you heard of Campaign 2000?---No, I have been out of Victoria for a few years. I was focused mainly - - -
PN475
THE COMMISSIONER: He is from Queensland, Ms Angus?---From Queensland, so I am sorry, I could tell you - - -
**** TERENCE IAN ROSENGARTEN XXN MS ANGUS
PN476
So was I, so condolences?---You should be congratulating me.
PN477
MS ANGUS: Are you aware then - you are not aware - is that correct, you are not aware of the standard pay claim and pay outcome for the years 2000 and 2001 for Victorian manufacturing maintenance workers?---No, in that particular time I was working in Queensland state awards.
PN478
THE COMMISSIONER: Yes. No, that is fine, I am happy to receive any evidence that you might want to - - -
PN479
MS ANGUS: And if I were to put to you that the average union claim for those two years was 5 per cent each year, are you in a position to know either way?---No, I couldn't - as I said, I am only familiar with the Queensland.
PN480
THE COMMISSIONER: No, that is fine.
PN481
MS ANGUS: But you would accept that 3.8 per cent is less than that amount?
PN482
THE COMMISSIONER: 3.8 per cent over two years, yes.
PN483
MS ANGUS: Over two years, yes, that is correct.
PN484
THE COMMISSIONER: Yes.
PN485
MS ANGUS: Yes, he doesn't know. No further questions, thank you.
PN486
THE COMMISSIONER: Good, thanks very much. Anything further, Mr Winnett?
**** TERENCE IAN ROSENGARTEN XXN MS ANGUS
PN487
MR WINNETT: Nothing further.
PN488
PN489
MS ANGUS: If it please the Commission can I call Mr Chris O'Boyle back into the stand?
PN490
THE COMMISSIONER: Yes, Mr Winnett, you are happy for Mr O'Boyle to come back?
PN491
MR WINNETT: Yes, as long as I get the opportunity to cross-examine.
PN492
PN493
MS ANGUS: I am sorry to hold up the Commission; obviously we are all playing slightly loose with the rules here, given that we haven't actually been - we haven't received formal written witness statements and it has just come to my colleague's attention that there may in fact be some problems with the mathematics that we have just received.
PN494
THE COMMISSIONER: Well, we can call Mr Rosengarten back again in a minute. Let us deal with Mr O'Boyle because he is there.
PN495
MS ANGUS: Mr Boyle, you were in the room when - - -
PN496
THE COMMISSIONER: Mr Boyle or Mr O'Boyle?
PN497
MS ANGUS: Mr O'Boyle, I don't think of you as having a last name, Chris.
PN498
THE COMMISSIONER: Boyle is a Scottish name and O'Boyle is an Irish name.
PN499
MR GRAY: They learnt how to swim.
PN500
MS ANGUS: Mr O'Boyle, you have heard the evidence given by Mr Campbell; correct?---Yes.
PN501
And you heard his remarks about discussions about taxation?---I don't ever remember taxation discussed.
PN502
Well, can I - yes, let me ask you quite specifically, and you have already answered the question I think, but was it the case from your recollection that taxation was ever discussed during those negotiations?---From my recollection there was no taxation .....
**** CHRISTOPHER O'BOYLE XN HIEF BY MS ANGUS
PN503
Was it the case that there was a discussion about CPI - Consumer Price Index being offset against tax cuts?---What happened was - I wasn't at all the meetings but Mr Fenby was meeting down in South Melbourne I believe at Thiess's office.
PN504
THE COMMISSIONER: Is this something that Mr Fenby told you?---Yes, when he come back - he come back - - -
PN505
Are you talking about something that Mr Fenby told you?---Yes, he come back with the CPI and he said to me, we have got an agreement for a CPI and a top up if your pay rise is below inflation rates. And this is what - the only reason we accepted this thing was because of that.
PN506
MS ANGUS: And in the meetings that you attended - - -?---Yes.
PN507
- - - is it true to say that there was no discussion - - -?---No.
PN508
- - - about - I should finish my question before you respond?---Sorry.
PN509
But there was no discussion about reducing the CPI figure by the taxation benefits gained?---No.
PN510
THE COMMISSIONER: Was it you don't recall GST being discussed at all, Mr O'Boyle?---No, I don't recall that.
PN511
No. But you weren't involved in all the discussions?---Not in all the talks, no.
PN512
MS ANGUS: Were you involved in discussions - roughly how many meetings did you attend?---I think I went to about three or four.
**** CHRISTOPHER O'BOYLE XN HIEF BY MS ANGUS
PN513
Okay. And at those meetings were they meetings where you were talking about wage outcomes?---Yes, we were talking about KPIs and what we could do to get the pay rise, change and things in the job and that, you know.
PN514
So they were substantial meetings you went to?---Yes, certainly were. We kind of get KPIs, the thing we thought we ..... you know because of the job.
PN515
But you went to meetings where you discussed the wage annual adjustments - - -?---Yes.
PN516
- - - that were going to occur and the company's position was at that stage 2.5, 2.5, 3.3?---Yes, yes.
PN517
As it is contained in the existing agreement?---Yes.
PN518
And you went to meetings where there was a discussion about disadvantage relative to the consumer price index?---Yes, yes.
PN519
And in those discussions there was no mention of taxation issues. I have nothing further, Commissioner.
PN520
PN521
MR WINNETT: I put it to you that in discussions that you had with Mr Campbell and Mr Fenby the issue of GST was discussed?---I am telling you I didn't.
**** CHRISTOPHER O'BOYLE FXXN MR WINNETT
PN522
I put it to you in the meetings with Mr Fenby and Mr Campbell, for which you were present, the impact of the GST was discussed?---No.
PN523
You heard evidence given earlier by Mr Campbell that in his experience there were certain changes that should have been made to clause 10.4 with respect to and including specific references to things like GST and GST related factors. Have you got a copy of the clause handy?---It is over there.
PN524
If you haven't I will provide you with one. Can you please show me in that clause where it specifically states that you are entitled to a payment from Thiess?---Well, it says I am disadvantaged.
PN525
No, no. I didn't ask you whether it said you are disadvantaged. I am saying in that clause can you please point to and show the Commission where it says you are specifically entitled to a payment from Thiess for a disadvantage?---It is obviously because I have got the disadvantage.
PN526
No, no?---It says here:
PN527
The parties acknowledge that this agreement provides for annual adjustment to wages.
PN528
Yes, which is the ones that are in the table?---Yes, we got our pay rise but the clause is saying because we have agreed to that pay rise, if our pay rise was under the CPI they would top it up.
PN529
I want you to point - - -
PN530
THE COMMISSIONER: Well, Mr O'Boyle, look at the clause very carefully and I know that you are not a lawyer and you are not an expert on the interpretation of documents that have legal ramifications, but just look at it and just consider what Mr - just look at it for a little while and just consider what Mr Winnett is putting to you?---Well, the way I read it is it says:
**** CHRISTOPHER O'BOYLE FXXN MR WINNETT
PN531
Adjustments to wages as provided herein and that it is intended that such adjustments will be adequate to at least maintain levels at or above the relevant consumer price.
PN532
To me, that means they will keep us up to the consumer price.
PN533
MR WINNETT: I understand that Mr - if we accept your evidence, that Mr Fenby told you that if CPI was greater than your increase you would receive the difference?---Yes.
PN534
So what I am putting to you is, that is not what that clause says.
PN535
THE COMMISSIONER: Yes. Can I just say, Mr Winnett, I am not sure that you can really press Mr O'Boyle further on this.
PN536
MR WINNETT: No problem.
PN537
THE COMMISSIONER: Yes, thank you.
PN538
MR WINNETT: No further questions, your Honour.
PN539
PN540
MS ANGUS: Just one further question to you, Mr O'Boyle. You have explained in response to questioning here how you understand the clause to work. Is it fair for me to say that your understanding is widely shared with your colleagues?---I would say a hundred per cent.
**** CHRISTOPHER O'BOYLE RXN MS ANGUS
PN541
THE COMMISSIONER: Thanks. Mr Winnett, nothing further from you?
PN542
MR WINNETT: Nothing further.
PN543
PN544
THE COMMISSIONER: Ms Angus, would you like Mr Rosengarten recalled?
PN545
PN546
THE COMMISSIONER: Yes, thanks, Mr Rosengarten. I hope you have been doing a bit of work there. It is very definitely something that it would have been useful to - I am sorry. I really did want to have the information, but I realise that it has probably raised quite a few more questions. You continue under your oath, Mr Rosengarten?---I understand that, Mr Commissioner. As I said, it was done in a rush and I am trying to work out which figure I wrote down at the particular time.
PN547
Yes, all right. Okay?---I am just trying to work it out myself.
PN548
Yes.
PN549
MS ANGUS: Mr Rosengarten, the figures you gave last time you were in the stand were by your estimation about 350,000?---Yes.
PN550
Now I just want to go through those again, if I may. Can you tell me how many employees there are at both South East Water and Melbourne Water on the two contracts?---Without the exact figures again, it is ballpark. I would say about 85.
PN551
About 85 employees. And do you know off the top of your head what the average wage is for those employees?---I might have it back there if you - could I have a sec for me to walk around?
PN552
THE COMMISSIONER: Yes, that is fine. That is fine. The more concrete information you can give, Mr Rosengarten, the better?---Sorry?
PN553
No, it is all right, Mr Rosengarten. You just do your homework?---This is based on my calculations. The average salary for South East Water for the fin year ending 2001, I had as 32 and a half.
**** TERENCE IAN ROSENGARTEN FXXN MS ANGUS
PN554
MS ANGUS: Can you give us on a weekly basis?---Divide it by 52.
PN555
625?---And then for the year ending - financial year ending 2000 was 31,700.
PN556
At Melbourne?---No, that is for - that is South East Water, sorry.
PN557
So the first one you gave, the 625 a week, is a Melbourne average?---No, South East Water. They are both South East Water figures. I don't have - just a sec. No. Yes, I have got it here. Just a sec. The average wage for Melbourne Water - I haven't got it for 2001, but for 2000 they were both about 31,700.
PN558
Which is marginally less than $625 a week. So what was that again? That was 3100?---37,000.
PN559
MR WINNETT: 31,000.
PN560
THE COMMISSIONER: 31,700.
PN561
MS ANGUS: 31,000?---31,700 which is about $609.60.
PN562
Yes. 596?---No, 31,700.
PN563
Sorry?---Divided by 52 is 609 - - -
PN564
Yes, I missed the 700. Divided by 52 is 609. Okay. So just to confirm that we are all working from the same figures here, Melbourne - the average wage for a Melbourne Thiess worker is $609 a week and the averaged out wage for a South Eastern Water worker is $625 a week?---No. For year 2000 they were both about the same. They were both about $609. For the year 2001, the figure for South East Water was 32 and a half but I hadn't done the figure for Melbourne Water.
**** TERENCE IAN ROSENGARTEN FXXN MS ANGUS
PN565
So you are saying it was marginally higher in - - -?---In 2001.
PN566
In the second of the two years?---Yes.
PN567
All right. Well, let us - I mean, we are working in rough figures here anyway, given that no-one is - no-one is necessarily going to hold you to it, but just to get an idea of ballpark expense for the company. So just to talk you through the calculation, if the - if we say that the average weekly income for South East Water and Melbourne Water - let us combine it. It is 625. I am going for your top level. $625 a week average at both the two sites for times 82 workers.
PN568
THE COMMISSIONER: He said 85 and I thought I heard a - - -?---Actually, it is now - I have got written down here - - -
PN569
I heard a muttering from your side of the camp indicating that there might be 88 workers, Ms Angus?---There is 92, actually.
PN570
There is now 92, yes?---It is up to 92. I have found further down. So 92 employees.
PN571
MS ANGUS: It has gone up to 92?---Yes.
PN572
And they are direct employees you are talking about there?---Yes.
PN573
You are not talking about - - -?---No, I understand. On the payroll.
PN574
Could you just give me a moment, Commissioner?
PN575
THE COMMISSIONER: Yes, sure.
**** TERENCE IAN ROSENGARTEN FXXN MS ANGUS
PN576
MS ANGUS: Now are you doing the calculations as we go along, Mr Rosengarten?---No, I am just looking over what I have done to see that I am not misleading everybody.
PN577
But let us just - all right. Well, let us just - do you want a minute?
PN578
THE COMMISSIONER: Can I just say that in terms of the way this evidence has evolved, I am taking it that these figures are no more than indicative.
PN579
MS ANGUS: Yes.
PN580
THE COMMISSIONER: Yes.
PN581
MS ANGUS: I think probably that is sensible?---Can I put "very" in front of them?
PN582
THE COMMISSIONER: Yes, that is fine.
PN583
MS ANGUS: But the principle - - -
PN584
THE COMMISSIONER: I wanted to get a general picture.
PN585
MS ANGUS: But I think we can probably agree on the principle by which we reach the figures, whatever those figures are, and they are that roughly speaking, workers at both - on both contracts earn about 625 bucks on average a year. Correct? Sorry, a week. Fortunately not a year. A week. 625 a week. They work for 52 weeks a year. The claim before you as you are aware is a 3.8 per cent disadvantage and therefore a 3.8 per cent increase?---Actually the claim should only be 3.5 - 3.3. Because one of the years the figures - sorry, I am - 3.8.
**** TERENCE IAN ROSENGARTEN FXXN MS ANGUS
PN586
Well, let me tell you what - - -?---We will leave it at 3.8.
PN587
Let me tell you what the union position is rather than you telling us. 3.8 per cent disadvantage?---Yes.
PN588
Times 92 workers whose average income is 625 bucks a week. By my calculation, roughly, given as the Commissioner has pointed out these are indicative figures, is about $113,000 a year for the two sites?---Yes, as I said - - -
PN589
Which is about - and we are not holding you responsible for your poor mathematics here, Mr Rosengarten, but that is about half of the original position, and I can't actually find - - -
PN590
THE COMMISSIONER: You are saying the total for the two years is 226 as opposed to 349, is that right?
PN591
MS ANGUS: That is right.
PN592
THE COMMISSIONER: Yes, so it is about two thirds.
PN593
MS ANGUS: It is less than two thirds. Somewhere between a half and two thirds, Commissioner, of the original calculations that you put.
PN594
THE COMMISSIONER: Can I just say that I am going - what I am going to suggest that I do is when we are at the point of closing submissions I will actually grant a 15 minute adjournment so that Mr Rosengarten can actually have some time to actually sit down and further refine it and I am happy to hear from the company in Mr Winnett's closing submissions as to any greater level of accuracy and Ms Angus. I mean, that is quite a significant differential which you have pointed out. That comes to - the percentage difference is quite different. So I will be happy to have submissions that might give some more detail.
**** TERENCE IAN ROSENGARTEN FXXN MS ANGUS
PN595
MS ANGUS: And if you could also provide us with information about the total labour cost for both contracts for both years, that would be useful.
PN596
THE COMMISSIONER: Yes.
PN597
MS ANGUS: And on that basis there is probably not much more that we can - yes.
PN598
PN599
THE COMMISSIONER: And can you just formally tender that - your submissions.
PN600
MR WINNETT: If I could mark and tender these submissions with the attached schedules.
PN601
PN602
MR WINNETT: Again, in relation to the way in which matters proceed from now, it is not our intention to revisit the submissions in any great detail but just to make some minor verbal submissions or oral submissions in relation to certain parts. So if the Commission pleases.
PN603
THE COMMISSIONER: Well, Ms Angus and Mr Winnett, would you like me to adjourn until quarter to 12 to give you time to prepare closing submissions?
PN604
MS ANGUS: That would be fine with us.
PN605
THE COMMISSIONER: And give Mr Rosengarten just some time to do some further calculations and I should say I am sorry that Mr Rosengarten has been placed on the spot in this way and I appreciate his assistance and I realise that having not known that those calculations were going to be asked for, he has not come prepared and I fully understand that. But Mr Winnett, if he could just do some work for the next 15 minutes and you can give us that information in your closing submissions, thank you.
PN606
MR WINNETT: If the Commission pleases.
PN607
THE COMMISSIONER: Yes, thank you. I will now adjourn. We will reconvene at quarter to 12.
SHORT ADJOURNMENT [11.32am]
RESUMED [11.54am]
PN608
THE COMMISSIONER: Yes, Ms Angus.
PN609
MS ANGUS: Commissioner, I don't intend to be too long. As I pointed out we would be relying on the written submissions that have been filed.
PN610
THE COMMISSIONER: Yes, great.
PN611
MS ANGUS: I really want to make two broad points. Firstly, I want to make a couple of points about jurisdiction, given it has been raised as an issue and then I want to make two points about how in our view, the Commission should approach the issue of understanding the meaning of that clause and that needs to be understood, I will argue, in terms of what the intention of the parties were and evidence has been brought before the Commission today, and also in terms of what the words actually say. So that is how I wish to break up our submissions.
PN612
THE COMMISSIONER: Good, thanks. Yes.
PN613
MS ANGUS: In terms of jurisdiction. The application that you have before you today, Commissioner, is two 170LW applications to settle disputes about the application of two agreements, and in particular, two clauses within each of those agreements. Now the issues - there are two, I think, issues that probably need to be addressed in our submission in terms of jurisdiction in relation to a 170LW and they are firstly - the first question the Commission needs to answer and it has been raised by Thiess and that is why I wish to address it right up front, is whether or not the parties themselves in those two agreements have actually empowered the Commission to make a determination to resolve a dispute.
PN614
Whether or not we have agreed to submit our differences to a third party for a decision, and that is the language of the CFMEU v AIRC High Court decision which has been referred to by both parties and I am assuming, Commissioner, that all the decisions that have been referred to in the context of both parties written submissions have by de facto been incorporated within evidence - within the material that has been filed and tabled before the Commission.
PN615
So the question is, just because I wish to address it, is whether or not the parties themselves have in their agreements, pre-committed themselves to having a decision of a third party resolve a dispute. Because if they don't, and we know that the context of that High Court decision is that the Commission can't exercise any judicial power - it can't order the parties to do anything. It can only make a determination where those parties themselves have, if you like, pre-committed themselves to following a determination of the Commission.
PN616
And in this context, it is actually quite plain. There is - it is worth drawing the Commission's attention to the dispute resolution procedures in both of those agreements and they are - not, they are not actually. In terms of the Melbourne agreement it is contained at clause 36 and the key sub-clause is 36.4. In terms of the South East Water contract agreement it is contained at clause 35 and the sub-clause that is crucial is 35.4 and they are identical in their terms, so I will just read the South East Water contract agreement at 35.4:
PN617
Should the dispute continue to remain unresolved, I, the party, may refer the matter to the Australian Industrial Relations Commission for resolution or determination, the decision of which shall be binding on both parties.
PN618
So in answer to that key jurisdictional question, Commissioner, that obviously you need to be mindful of, the parties have in their dispute resolution procedure, committed - they have done two things. They have authorised the Commission to make a determination about the terms of the agreement and they have committed themselves to being bound by that determination. So you have, in our submission, you have the powers of private arbitration that were referred to and developed in that High Court decision.
PN619
The second key jurisdictional issue that needs to be overcome then, is what is the scope of any determination that the Commission makes. And as I pointed out, we are not - contrary to the submissions of Thiess's advocate, we are not seeking any sort of exercise of judicial power. We are not seeking that the agreement be enforced because we are aware that there is a different jurisdiction for those sort of applications. We are and, in fact, we are happy to rely on and agree to paragraph 3.5 of Thiess's submissions where Thiess argues that the Commission can only form a view about the meaning of an agreement.
PN620
I may be paraphrasing, but it is that the Commission's role is to form a view about the meaning of a clause in an agreement. Something to that effect. Clearly, that is an extremely minimalist position that they have adopted, and under different circumstances we would be arguing for a more active role pursuant to a 170LW application, but we are happy for the purposes of these proceedings to say, Commissioner, that is all we want from you. We want you to form a view about the meaning of clause 10.4 in each of those two agreements.
PN621
And clearly there is a dispute. There is a disagreement about what those clauses mean or what that clause means in each of the agreements. We believe that we have negotiated an agreement - two agreements with Thiess Services that provide, depending on certain circumstances, effectively a dual wage outcome. It provides a guaranteed fairly low minimum pay outcome and it provides a top up to CPI and a top up that occurs after disadvantage has been established and in conjunction, after conferring with Thiess about the best way and the precise way to remedy that disadvantage.
PN622
That is what we see as the meaning of that clause. And clearly Thiess sees the meaning of the clause as imposing no - imposing an obligation to talk to us and enabling Thiess to offset any disadvantage against a number of other factors and they raise a list of them. They raise tax benefits to employees, they raise reclassification process, they raised Bunnings vouchers. They raised a number of other matters that Thiess say they can offset that industrial obligation against. So we are in a situation, Commissioner, where there is a disagreement about the meaning of a clause in an enterprise agreement.
PN623
Thiess acknowledge quite plainly in their written submissions that the Commission can make a determination about the meaning of a clause pursuant to 170LW and so there is no dispute ultimately about your jurisdictional capacity to tell us what that clause means. So they are the jurisdictional concerns. In terms of, if you like, how the Commission should approach the issue then of what that clause means, there are essentially two things that the Commission needs to consider, in our submission.
PN624
Firstly, you need to consider what it is that the parties say is the intention of the clause and secondly, and most importantly, Commissioner, you need to determine what the words themselves say. What the parties have actually committed themselves to. And I will start with the parties' intentions, if you like, as distinct from the express intention of the clause. And for that, that is a matter of evidence that has been brought before the Commission and I want to look at a number of the witnesses that have been called today.
PN625
Mr Campbell's evidence was interesting. He is highly experienced at negotiating enterprise agreements by his own accounts. He has done, he said, three to four, at least in rough figures. He has negotiated a number of other agreements that contained wage increases linked to CPI, so he is - and he pointed out that that is not uncommon in his experience and his industry. And because it is not uncommon, clearly he is experienced in negotiating, at least something similar to this in the past.
PN626
And what he argues, I think it is fair to deduce from the evidence that he has given, is that it was his intention - it was Thiess's intention in negotiating at least one of the two agreements, that the clause be understood in the context of the GST and he accepted when I put to him that what, perhaps more appropriate wording should have been from his perspective, was GST induced inflation. But, Commissioner, you should separate in your mind two things. There is the issue of the GST and then there is the separate conceptually discrete issue of offsetting CPI against tax benefits to employees.
PN627
Now if it is the case - even if we accept entirely his evidence that it was his intention that this clause was about focussing on GST induced inflation, which were words that he accepted, then even that is not sufficient for the Commission to conclude that GST induced inflation combined with a reference to CPI, enables the company to offset CPI against employees' individual pay and you earn taxation gains. So it is important to make that distinction between - even if you accept entirely that the clause was negotiated in the context of the GST, that itself is still one logical step short of concluding that a measure of inflation needs to be offset against employees' taxation gains under a change of taxation policy.
PN628
That is point one, I think, that needs to be got from Mr Campbell's evidence. Point two. Highly experienced manager who has done a number of agreements and done a number of agreements that contain similar provisions, accepts quite plainly there is no reference to GST. There is no reference in the agreement to offsetting against tax benefits gained by employees. It is silent. And he acknowledges that in the context of that silence that there is only one way to interpret CPI nad it is the objective measure of CPI determined by the Australian Bureau of Statistics. He acknowledges that quite plainly.
PN629
He also acknowledges that the company drafted the clause; the company had carriage of the document and therefore the company has to accept a degree of responsibility for the words contained in that agreement. So that is the evidence of Mr Campbell. The evidence of Mr O'Boyle was that he attended a number of the negotiating meetings. Not all, but a number of the negotiating meetings and those meetings that he attended were substantial in the sense that they were talking about wage outcomes.
PN630
And in none of those substantial meetings that he attended was there any discussion, in his evidence, about either the GST context or indeed, any mention of offsetting CPI against taxation cuts. The other piece of evidence that is important for Mr O'Boyle was that his understanding of the clause having attended a number of the substantive meetings, was quite plain and that is it provided for a top-up relative to - it provided for a payment relative to - well, to the gap, if you like, between the annual wage adjustment and the CPI figure for any given year.
PN631
And that not only was that his understanding, but that was - I think to paraphrase him or from the words he used, that was a hundred per cent understanding of the workforce. So we have at least - we have at least - actually, I will pause that point. The final witness that was - that is crucial for understanding the intention of the parties in negotiating, was Mr Coman who attended every single session by his own evidence - every single session and he says quite plainly and it hasn't been contradicted, that there was - in all of those meetings there was at no stage - there was no mention of offsetting CPI against tax benefits gained. Not one mention of it. That is the evidence he has brought. And there was no - on the basis of that we can conclude that there was no intention to use any other measure than the objective ABS data which is CPI data.
[12.08pm]
PN632
There was no mention between the parties to pluck out other alternative figures later down the track, at least no discussion during those negotiations. He also gave evidence, similar to Mr O'Boyle, that in fact 100 percent of his colleagues voted on that agreement on the basis of that clause. Now we know that both sides in negotiating agreements have certain statutory obligations to explain the terms of an agreement to employees before they vote.
PN633
And we can only assume that in fact the employer fulfilled its statutory obligations to explain the terms of the agreement and that there was some detailed discussion by the employer as the evidence is that certainly the union fulfilled its statutory obligations, but some attempt we can only assume by the employer to - to at least, if they meant something other than the words in the agreement, to present their case to the workforce prior to their vote. Because the evidence of Mr Coman is that all the employees precisely voted for the agreement on the basis of that clause because they thought it was a top-up provision.
PN634
Now, there is no-one in the room today who was involved in the negotiations that Mr Coman was, so the best we can do is we can at least conclude that Mr Coman's evidence is an accurate reflection of at least of the intentions of the negotiating party. And we hope, Commissioner, that you also conclude that at least in terms of what Mr Coman heard, he heard no other position being put forward from the company in those negotiations that described a different intention, ie, this offsetting against tax benefits.
PN635
THE COMMISSIONER: Yes, Ms Angus.
PN636
MS ANGUS: So we have - sorry, Commissioner.
PN637
THE COMMISSIONER: Please go ahead, yes.
PN638
MS ANGUS: So we have in terms of the evidence before you that relates to the intention of the parties, we have - we have a clear position in relation to both of the two agreements that at least half of the negotiating parties understood the clause in one particular way; and that in relation to one of the agreements there was no refutation of that over the course of the negotiations; and in relation to the other, the agreement that Mr Campbell was involved in, he says there was a refutation but it is contested, isn't it.
PN639
There is no - we have contested evidence here about whether or - whether there was a discussion about either GST or offsetting against tax cuts. And frankly, Commissioner, even if you accept part of - and you come to some sort of jigsaw arrangement about what it is that you accept actually occurred in those negotiations, and even if you accept that there was a discussion about a GST context, that is not - that is not sufficient an argument to then conclude that the CPI figure needs to be offset against tax benefits gain.
PN640
Okay. So that is in terms of the intention of the parties. That is only half of, in our submission, half of what you need to consider in terms of your understanding of the meaning of that clause. More important is in fact the express words themselves, what it is the parties have in writing committed themselves to. And so we actually need to look at the clause. And I agree with Thiess' submissions that the way to focus on - the way to understand this clause is in terms of plain English, in terms of industrial usage.
PN641
We don't need any convoluted arguments about, you know "this word could mean something other in a different context". We just need to read the clause and say, "Okay, in its most simple and its most plain, what does this clause mean?" So, let us do that. The clause at 10.4, and I will read it again for everyone's benefit, 10.4:
PN642
Review of Wage Adjustments. The parties acknowledge that this agreement provides for annual ...(reads)... parties agree to confer with a view to removing any actual disadvantage.
PN643
Now, Commissioner, in our view the clause effectively says three things. There are three points contained in that clause. And they are, firstly, the clause expressly describes an intent between the parties. And that intent is that wages shall be equal to or greater than the relevant CPI. Point one. It expressly describes an intent and for that I quote:
PN644
It is intended that such adjustments will be adequate to at least maintain levels at or above the relevant consumer price index variation over the life of the agreement.
PN645
So that is the key first thing we need to get from this agreement, from this clause, is the expressly described intent that wages over the life of this agreement shall be equal to or more than the relevant CPI. Okay.
PN646
THE COMMISSIONER: Over the life of the agreement?
PN647
MS ANGUS: Over the life of the agreement. Okay. Point two, the second thing that we say quite plainly this clause says is that if that intention falls short - sorry, if that intention is not fulfilled, right, if that situation that is described in the intention doesn't occur, then there is a process referred to in this clause.
PN648
THE COMMISSIONER: Well, I think you are best advised to stick to the actual wording which is that:
PN649
In the event that either party considers it is disadvantaged then a process is prescribed for.
PN650
MS ANGUS: Yes. And then the process occurs, okay. So in the event that - you are right, okay. The key thing is though - so the first thing is we have an expressed intent. The second thing is we have that if either parties considers it is disadvantaged compared to that intent then there is a process. And that process, as we know, is to agree to confer with a view to removing any actual disadvantage. So the second point that is contained in that agreement is the process. Yes? The third thing that is contained in this clause is the measure of that disadvantage.
PN651
And that is referred to twice. This clause defines disadvantage. And it does so in two places. It does so because it is expressly describing the intention of the parties and that is, and I am quoting again:
PN652
Such adjustments will be adequate to at least maintain levels at or above the relevant consumer price index.
PN653
That is one definition of disadvantage. There is a second definition of disadvantage, and that is in the second sentence:
PN654
In the event that either party considers it is disadvantaged -
PN655
and here we go, we get the second definition:
PN656
...it is disadvantaged by the adjustments available under this agreement and the relevant CPI.
PN657
In this clause we have definitions of disadvantage. There are no other definitions of disadvantage in this clause. So we have - again I want to make the point so it is really clear because it is actually quite plain from our reading - we have an expressed intent. We have a process where that intent isn't fulfilled and we have a definition of disadvantage, twice, in that clause. And what has happened is that we have provided evidence to the Commission that in fact the contractual commitments, what we have actually committed to ourselves in terms of the express intent of the parties, hasn't been fulfilled.
PN658
The evidence that we provided in exhibit A1 is that the annual adjustments contained in clause 10.3 actually fall short of the relevant consumer price index variation for the corresponding year. So we have tried what we say is the next component part of that subclause, which is we have tried the process. We have on numerous occasions, under a 99, in private discussions, as part of this 170LW application, we have conferred with a view to removing any actual disadvantage and we have been unsuccessful.
PN659
And so the story goes that is why we have activated the dispute resolution procedure which then empowers you to come along and help the parties out by telling us what this clause means. And ultimately, Commissioner, you need to assist us in working out how it is that we can remove the disadvantage. It is the disadvantage that, again, we say is defined twice in that clause.
PN660
THE COMMISSIONER: Yes. Ms Angus, do you say that this is a process which requires an annual reflection or is it a process which allows for a concluding reflection on the total effect over the three year life of the agreement?
PN661
MS ANGUS: No. It is an annual process because - - -
PN662
THE COMMISSIONER: Yes. You say those words refer to an annual process?
PN663
MS ANGUS: An annual adjustment.
PN664
THE COMMISSIONER: Yes.
PN665
MS ANGUS: And it is the annual adjustment that is then reviewed to see whether it fulfils the express intent of the parties which is that it provide for, effectively, the same or more than the CPI.
PN666
THE COMMISSIONER: Yes. All right.
PN667
MS ANGUS: Yes.
PN668
THE COMMISSIONER: Thanks.
PN669
MS ANGUS: Okay. So, Commissioner, I want to refer a decision that was actually raised by the company and it is the Ansett decision which is actually quite useful in, in our submission, in assisting you to make a decision then about how you go about removing any actual disadvantage, how you go about - well, which is - because we have conferred with a view to removing any actual disadvantage. We have been unsuccessful. And so how is that the Commission then makes a decision about (a) what the clause means and how to remove any disadvantage.
PN670
And the decision that is referred to, which I actually just want to make a couple of quick points about, is the Ansett Australia - it is basically the Ansett Pilots Association - - -
PN671
THE COMMISSIONER: Whose decision is it?
PN672
MS ANGUS: Well, it was actually - it was an appeal to the Full Bench on the basis of - which then upheld Vice President Ross's earlier decision. So it is a Full Bench of this Commission, handed down in December '99. That flowed on from a 170LW application. And the key thing that was important in this Full Bench determination was the finding that - upholding Vice President Ross's original decision that the Commission can't arbitrate matters that fall outside an enterprise agreement.
PN673
That it goes back to the earlier jurisdictional point about the scope of the determination. And the Full Bench found that - and found agains the union, I would make the point, in terms of the Ansett decision - found against the union that, and I will quote - if I just read out one paragraph from that decision, paragraph 9:
PN674
The issue turns on the questions of whether clause 10 of the agreement empowers the Commission ...(reads)... adopted by Vice President Ross was not unnecessarily literal.
PN675
Now the facts are very different between the two matters. But the principle that the Full Bench is developing here is that determinations can only be about matters contained in the agreement. That is the extent of the scope of the Commission's jurisdiction in 170LW applications. And that is what effectively you are being asked to do by Thiess. You are effectively being asked to make a determination about matters that fall outside the agreement.
PN676
And what I mean by that is this, that there are issues of taxation levels, of reclassification, of production bonuses and gift vouchers, that the company are saying are relevant in your determination. None of those matters appear in this agreement. And the Commission, the Full Bench of the Commission - well it is a problem for you, Commissioner, if you are to make a determination that that encompasses a whole range of matters that extend beyond the agreement itself, then - - -
PN677
THE COMMISSIONER: Where would it all end?
PN678
MS ANGUS: Where would it all end? Potentially you are exceeding the jurisdiction that at least this case, this Ansett Full Bench decision says is the parameters, if you like, of a determination. A 170LW application empowers the Commission to make a - to arbitrate only in relation to matters contained in the agreement. Not in relation to taxation - and there is no reference to taxation in the agreement. Not in relation to free dinner vouchers, where there is no reference to free dinner vouchers contained in the agreement.
PN679
THE COMMISSIONER: Right, you have made your point, Ms Angus.
PN680
MS ANGUS: I have made my point. Good. Okay. The second issue that I want to make about the whole argument about offsetting against taxation - so the first point is that jurisdiction extends to matters within the agreement. The second point is that the company effectively want to, if you like, redefine this notion of actual disadvantage contained in the clause. The company want to say that actual disadvantage refers to a whole lot of other factors, taxation benefits.
PN681
And the problem with that is, Commissioner, that frankly it is none of their business and nor, with the greatest of respect, Commissioner, it is really none of your business what taxation levels pay. Nor is it anyone's business what welfare provisions people have, nor is it anyone's business if - - -
PN682
THE COMMISSIONER: Well, it is if it is clearly set out in terms of the agreement - - -
PN683
MS ANGUS: If it is set out in the terms of the agreement, because we know from the Ansett decision, then that attracts the jurisdiction. But given that it is silent in terms of the agreement, we know that the whole purpose of this Commission is to discuss - well, let us see, let us see. The argument - I am going to go back, the argument being put by the company is that there are changes in arrangements that extend beyond the employment relationship and that you should consider those changes that are beyond the employment relationship in your determination about industrial obligations within the employment relationship.
PN684
And, frankly, it is an entirely private matter. It is a matter between an individual citizen, or a collective bunch of citizens, and the government what the taxation levels are. Just as it is an issue if it was a welfare provision or if we were talking about an employee winning the Lotto in that same period.
PN685
THE COMMISSIONER: You have made your point, Ms Angus.
PN686
MS ANGUS: Okay. And - but - well, it is important because the application is brought within a particular part of the Act, and that is part VIB of the Act. And the Commission, in terms of the object of that part of the Act, is very much precisely focussed on - and I will read the object at 170L - the object of this part of the Act is about facilitating agreements, and making of agreements. And - that is at 170L, which I can't find but I will. And then how do we define agreements?
PN687
Well, we all know because of most recently the bargaining agent's fee and there is a whole range of contentious matters before the Commission and the Federal Court at the moment which precisely define an agreement. An agreement we know, at section 170L(i) can only be about matters that pertain to the employment relationship. It can't be about welfare provisions. It can't be about bargaining agents fees, until that is overturned.
PN688
And the Commission's focus, the Commissions jurisdiction - and in fact the key object, the only object of this part of the Act within which we are operating now is about focusing on agreements and agreements only extend to matters that pertain to the employment relationship. And that is important because we know that your determination is to be confined to what is in the agreement. And it needs to be confined to matters that pertain to the employment relationship rather than the company which wants to - at the moment wants to bring in a whole lot of offsetting factors that frankly don't relate to the employment relationship.
PN689
They actually relate to Mr O'Boyle's private voting capacity with John Howard. They are quite separate. They are - it is - aside from being unfair it is actually skating on, if you like, sort of the jurisdictional parameters for the company to argue that changes in arrangements beyond the employment relationship should affect the industrial entitlements within it. Okay. The final point I want to make is in relation to the Jetcare decision, which is a - which I think has been referred to. It is a decision by Commissioner Hodder, came down from Brisbane 14 January 2002.
PN690
THE COMMISSIONER: Yes. You refer to that in your submission.
PN691
MS ANGUS: Yes. That is why I am not referring to the various case numbers or the print numbers of each of these decision because they have already been referred to.
PN692
THE COMMISSIONER: Yes.
PN693
MS ANGUS: Again the facts in this case are different in the sense that the clause in that agreement was quite precise in that it said that a wage adjustment will be the same as the CPI on a certain date. But was important about this case is that the company essentially tried to introduce this additional notion of a "real CPI" as distinct from what the words of the clause said, which was just "CPI". So they sought a definition, if you like, beyond the terms of the agreement in much the same way as Thiess is trying to do.
PN694
And Commissioner Hodder found, and the key - obviously the key clauses extend from clause 19 through to the conclusion. But I just want to read a couple of sentences, at clause 19, I quote:
PN695
I have noted that no special arrangements or terminology identifies the intention of the party as to the manner of the application of clause 29 other than on the basis of that which is provided within the agreement.
PN696
An identical situation to the one we are confronted with:
PN697
Further -
PN698
and I go on to read -
PN699
there is no suggestion or evidence that the ABS when determining the CPI for Brisbane for the relevant period provided the means for discounting the CPI figure of 6 percent by 2.5 to 3 percent as a result of the calculations made to arrive at the figure of 6 percent. In considering the most appropriate manner to deal with this application it is necessary to look at intention of the parties -
PN700
sorry:
PN701
...it is necessary to look at what the intention of the parties was concerning wages.
PN702
Now, I have made submissions in relation to the intention of the parties and I have also made submissions in terms of the express intention described in the clause itself. And in - and I would argue to you, Commissioner, that in terms of the principles developed both in this case - they are near identical to what Commissioner Hodder was confronted with. And in that context he concluded, at paragraph 22:
PN703
It would appear that Jetcare is asking this Commission to conclude that the intent of the party was something different to the very words used by the parties in the final analysis after their negotiations were completed and then converted into a settled agreement which was ultimately certified by this Commission.
PN704
And again the final sentence of paragraph 26:
PN705
I am not satisfied that it would be appropriate to discount the level of wage increases provided for as this is a reflection of the intent of the parties at the time they negotiated, settled and applied to this Commission to have the agreement certified.
PN706
Now, Commissioner, you are confronted with a near identical situation where the wording is quite plain. The wording actually describes an intention between the parties.
PN707
THE COMMISSIONER: I won't say the wording is quite plain, Ms Angus.
PN708
MS ANGUS: Well, but you would have to accept - everyone has to concede that there is an express intention.
PN709
THE COMMISSIONER: Yes. I would never - there is very specific wording, there is no doubt about that.
PN710
MS ANGUS: That is right. That is right.
PN711
THE COMMISSIONER: I am just saying I am not quite sure that the meaning of that is yet quite plain to me, but hopefully it will be at the end of my digesting all the materials from both parties. So, there is nothing more you can say to me on that subject, Ms Angus.
PN712
MS ANGUS: No. I suppose - I mean, it is ultimately a matter about actually reading the clause and working what the words in their plain sense mean.
PN713
THE COMMISSIONER: Absolutely.
PN714
MS ANGUS: And - - -
PN715
THE COMMISSIONER: And the extent to which it would otherwise be relevant for me to consider what I have heard about the intent of the parties.
PN716
MS ANGUS: Indeed. Indeed.
PN717
THE COMMISSIONER: Yes. Yes.
PN718
MS ANGUS: And we would agree about that approach.
PN719
THE COMMISSIONER: But my starting point is the wording of the clause because that is the wording which is embodied in an agreement which has been certified by this Commission pursuant to the provisions of the Act.
PN720
MS ANGUS: That is right, Commissioner. And add to that - and I will conclude on this point - add to that the two other points that I have argued in relation to how the Commissioner in general approaches these matters. And that, as we know, the Full Bench tells us that a determination is confined to matters contained in the agreement. So you can consider the individual parties involved and what they thought they were intending. But ultimately your decision is confined to the terms of the agreement, firstly; and also given, again, the operation of the Act, the whole scheme of the Act, it is confined to matters that pertain to the employment relationship not what sort of child subsidy program one of the employees was receiving under - at that period of time.
PN721
THE COMMISSIONER: Right. You don't need to retraverse on that.
PN722
MS ANGUS: And on that basis, Commissioner, I think - I think they are our submissions.
PN723
THE COMMISSIONER: Good. Thank you very much. Mr Winnett, how long do you think your submissions will be?
PN724
MR WINNETT: Not 45 minutes.
PN725
THE COMMISSIONER: No, that is all right.
PN726
MR WINNETT: I probably expect maybe 25 minutes. I think I would be able to finish by 1 o'clock.
PN727
THE COMMISSIONER: Yes. All right. Do you think you can have me out of here by 5 - 5 to 1?
PN728
MR WINNETT: I will attempt to do so.
PN729
THE COMMISSIONER: Thank you very much, Winnett. All right. I mean, otherwise I could adjourn and reconvene.
PN730
MR WINNETT: Hang it over a bit. Yes. No, look - - -
PN731
THE COMMISSIONER: But if you think you are going to be over by then, well, let us go for it.
PN732
MR WINNETT: I think I would be over by then, yes.
PN733
THE COMMISSIONER: Yes. Thanks.
PN734
MR WINNETT: I have got no particular attachment to clause 10.4 because I had no - I had absolutely nothing to do with the drafting of the certified agreement.
PN735
THE COMMISSIONER: Trouble is the Commission has got an attachment to it, it certified the agreement.
PN736
MR WINNETT: Yes, it does, as do some of the parties. So - but clearly if we accept the union's argument, Mr Fenby told Mr Coman and Mr O'Boyle and two of the members of the union at the sites that clause 10.4 meant that:
PN737
In the circumstances where CPI was greater than a wage rate you would receive the difference.
PN738
And I have got no reason to say that what Mr Fenby told Mr Coman and Mr Boyle, and to the other people in the union, is not what was said. But the fact of the matter is 10.4 does not say what Mr Fenby told his members it says. And that is primarily our submission. But what I would like to do is go back and address in terms of my own submissions that were handed to both the Commission and also to the union. I intend to skip over the first part which was in relation to - - -
PN739
THE COMMISSIONER: Go on, Mr Winnett.
PN740
MR WINNETT: I will just skip straight over part 1 because we are not dealing with the section 99.
PN741
THE COMMISSIONER: Yes.
PN742
MR WINNETT: In relation to the jurisdictional objection in relation to part 3 on page 3, which is the section 170LW notice, we agree with the union to the extent that clause 36 of the certified agreement in a sense limits the discretion that the Commission has to deal with this matter. And it limits the discretion to the extent that it must deal with matters which are in the body of the certified agreement. Now, if it is the Commission's view that clause 10.4 has a plain meaning on the face of it, then in those circumstances the Commission is entitled to exercise its powers pursuant to the dispute resolution clause to tell us what that is.
PN743
But that is not what the union is asking you to do. The union is asking you to look at the intentions of the parties to ascertain what clause 10.4 means. Now that is clearly beyond the scope of the dispute resolution provision. Because it is not saying what is in the agreement, it is saying "what do parties 10.4 says in order to interpret 10.4". And clearly there is no agreement between the parties as to what clause 10.4 means. Now I will come to address that.
PN744
And so from the jurisdictional perspective, we say that the Commission determines the plain English reading of this particular sentence, or particular two sentences, is X - fine. But if the Commissioner has to move beyond that and look at the intention of the parties, look at what Mr Coman and also Mr O'Boyle thought, and also what Mr Campbell believed, then you are moving beyond what are the words of the certified agreement and therefore you are moving beyond the jurisdiction of a dispute resolution procedure.
PN745
What I would like to do at this stage is look at the things that were talked about in relation to the witness statement of Mr Coman and Mr Boyle. Now, Mr Coman says at point 8 of his statement that:
PN746
No-one seemed to know what the impact of the GST would be but I remember Ross saying that we should agree to some independent measure of the impact.
PN747
Now clearly on that basis Mr Coman had put his mind to the issue of GST. Now we understand that Mr Boyle says that there were never any discussions about GST and we must assume tha tin relation to discussions that took place between Mr Fenby and Mr Boyle that they were separate from the discussions that took place between Mr Fenby and Mr Coman. But clearly at least Mr Coman in his discussions with Mr Fenby had addressed the issue of GST.
[12.38pm]
PN748
It is in his own statement. Now we say that based upon that statement and also the evidence that was given by Mr Campbell, the views of Mr Campbell and Mr Coman should be preferred over that of the views of Mr O'Boyle. Clearly there was concern around this period about the impact of GST. The company says that the reason for the inclusion of clause 10.4 was in a sense an attempt at the request of the union to address that impact. But you can't on the one hand accept that a measure of the impact is CPI without also taking into consideration the tax cuts, and I will address that further in a moment. Now importantly what Mr Campbell had to say was:
PN749
I have experience in relation to negotiating certified agreements. I have experience in relation to dealing with CPI clauses.
PN750
He also said that he had dealt with other clauses which had, in a sense, would address the issue that the union are trying to make this clause deal with, and I accept - the union are trying to make clause 10.4 say something it does not say, and I took Mr Campbell to say is that he has had dealings in which clauses have been put, both by unions and probably employers, which do exactly what the union want this clause to do, but this isn't one of them.
PN751
Now importantly that was the issue that was addressed also in the Jet Care case that was referred to as well and I mean there is a clear distinction between the two clauses and I won't read the test clause because it has already been read and you are familiar with it, as am I, but I will read the Jet Care clause. It says:
PN752
On and from a date 12 months from the commencement of this agreement ...(reads)... Brisbane for the previous 12 month period.
PN753
It is very clear. It is very concise. It says - this clause is a clause of action. Unfortunately 10.4 is not. If - - -
PN754
THE COMMISSIONER: Well, there is no doubt it is about action. It is just a case of what is the action and what is the outcome of that action.
PN755
MR WINNETT: What is the action? Yes, correct. Yes, and of course we say that - - -
PN756
THE COMMISSIONER: Does such action produce a conclusion that it binding on both parties?
PN757
MR WINNETT: Correct. And we said - we are saying had the union wanted a clause which dealt with what it is saying it wants this clause to be able to achieve, could very easily have done what Jet Care did. This is not a difficult clause.
PN758
THE COMMISSIONER: Sorry. Don't labour the point, Mr - I am anxious for you to keep moving.
PN759
MR WINNETT: Yes. Now with respect to the interpretation of 10.4, a number of issues arise and interestingly probably each one of the points that were raised by the union could conversely be raised again them. For example, it is argued that part 6 does not allow an agreement to be certified where it deals with matters outside the employment relationship. Clearly CPI is outside the employment relationship, so you can't in the one hand say - bringing in extraneous factors such as taxation cuts is beyond the scope of that part of the agreement, when clearly CPI would be.
PN760
So that argument, it either completely destroys that particular clause or both can sit alongside each other. Now the other thing that needs to be addressed is the issue of over the life of the agreement. One reading of this particular clause would be that until 1 July 2004 or 30 June 2004, the actual effect of this agreement cannot be determined. Now - - -
PN761
THE COMMISSIONER: All right. I am sure the CPI figures came out up to that point.
PN762
MR WINNETT: Correct. They can be, but there may be a - you will note in this particular agreement it doesn't - say for instance if the wage increase for this is say 3.5, if CPI came out at 2.9, the company is disadvantaged, the employees are advantaged against CPI. That would not be able to be taken into consideration at that point, but could over the life of the agreement. And we say the use of the words in clause 10.5 over the life of the agreement have to have some purpose, and the union's reading of it dismisses it.
PN763
The second issue that is raised by the union is they say the definition of CPI is used twice. We say that is wrong. We say that there is actually two references to CPI and they are both very different. The first is a reference to CPI in the first sentence and the first is a reference to CPI in the second sentence and the key word is, "to remove any actual disadvantage". The word "actual" has to have some meaning in this if we look at the plain words of it, and that is where we import these other issues and items about the tax, because if it was just CPI, it would have just said, "the disadvantage".
PN764
What we are saying is, "No", it has to look at the actual disadvantage to the employees and in order to ascertain that, you need to look at more than the CPI. Now Mr Campbell gave evidence that, at least from the company's perspective, that was what they had anticipated and had thought through when they were considering the wording of 10.4. We say the words in 10.4 are plain, and that a meaning can be - - -
PN765
THE COMMISSIONER: You both say that. I am just not sure that it really is so - - -
PN766
MR WINNETT: It is just that we disagree as to what the meaning is and clearly it is not so plain, but we say it is plain on our reading.
PN767
THE COMMISSIONER: Yes.
PN768
MR WINNETT: And look I accept that the union says it is plain on their reading too, but ultimately there is only one person whose reading of that clause counts, but we say in relation to making your determination as to what clause 10.4 means, one needs to look at the factors that were addressed by Commissioner Smith in the case that we have referred to on page 4 at 4.2 of our submissions, and I won't labour those points again.
PN769
THE COMMISSIONER: Yes, that is fine.
PN770
MR WINNETT: But what we are saying is that the union is requesting the Commission to conclude that the intention of the parties was something different to the words used. Clearly the gentlemen here today thought they were getting something which is not reflected in that clause and I say unfortunately for them, there is not - the clause can't even be read in such a way to give them what it is that they thought they were getting, because all it says is:
PN771
Confer with a view to removing any actual disadvantage.
PN772
But it doesn't say, "remove the disadvantage", it says, "talk about it". Now we say that the clause that was quoted by the AWU with respect to Commissioner Hodder's decision in the Jet Care case is important, and in fact we say it is crucial. It says:
PN773
It would appear that the Jet Care case is -
PN774
Jet Care, and we say the union in this instance -
PN775
is asking this Commission to conclude that the intent of the parties was something different to the very words used by the parties.
PN776
Clearly there is a difference about what the intention was and what the words say.
PN777
THE COMMISSIONER: Yes. Can I just flag to you, Mr Winnett and Ms Angus, that it is possible that if I felt, when I take into account all of the material, that the first part of the clause does mean something clear.
PN778
MR WINNETT: Yes.
PN779
THE COMMISSIONER: And the second part of the clause only allows the action to be a conferring about it and doesn't allow a resolution of it, it is possible I might consider it appropriate to make a recommendation as to the action or the approach that I believe might be appropriate for the parties to take to enable them to try and reach a resolution of the matter.
PN780
MR WINNETT: Yes.
PN781
THE COMMISSIONER: Because it is possible that otherwise any decision that I make might just leave the parties in no better position than they are in at the moment.
PN782
MR WINNETT: Yes, yes.
PN783
THE COMMISSIONER: And just leave you both at loggerheads.
PN784
MR WINNETT: And I agree, I mean - sorry, yes, yes.
PN785
THE COMMISSIONER: I haven't - I promise you I have not reached a view on the subject.
PN786
MR WINNETT: No, no, no. I mean from my perspective it is an unfortunate clause because what it does, as is as you said. At the one part it sets out what the intention of the parties is and the other party doesn't prevent a mechanism other than to confer. So we say in relation to what Commissioner Hodder - so substituting the union for Jet Care, we say the union is asking the Commission to conclude that the intent of the parties was something different to the very words used by the parties in the final analysis.
PN787
Clearly we say at least the intent of the union was, you would get the difference. Words don't say that. After their negotiations were completed and then converted into a settled agreement which was ultimately certified by the Commission. It is identical, we agree with the union. This was not said by the union.
PN788
I am of the view that it is not appropriate for me to speculate upon what would be the meaning, had different words been used, nor as to whether the words used express the spirit of the negotiation which has led to the written agreement between the parties.
PN789
And again we say that it is very pertinent to the issue we have here. Now we say that - moving on from that, we say Thiess has done what is necessary under the particular clause. There was a requirement to confer, we have conferred. There is disagreement as to how much money should be paid, if any, and in what circumstances, to the employees claiming that they have been disadvantaged. Thiess has made an offer to the union which has been rejected, as is their right.
PN790
Again by going through that process, we have done what was needed to be done under the agreement. But we say because we have done what was needed to be done under the agreement, there can't be any dispute on that word or on that sentence, because we have conferred. But not just that, having conferred in a situation where we just talked. We didn't just talk, we talked and we made an offer, and we made what we say is a reasonable offer in the circumstances.
PN791
In relation to the issue of whether or not the employees concerned have actually suffered a disadvantage, I don't intend to go into that in any great detail, but one thing I did want to clarify is, in our submissions we had placed two alternatives. One was the way in which the union believed that in the event that there was a disadvantage, how it should be calculated, which was set out in table 1 of our document. Clearly what we have heard today from both Mr Coman, Mr O'Boyle, but also from Mr Campbell is that the way in which it is interpreted, or if it is going to be interpreted and anyone is going to rely upon what the intention of the parties was, then it should be interpreted in the way in which it is set out in table 2.
PN792
One more issue that I instructed to raise is with respect to the issue of, if it was to be dealt with on a per annum basis, is the fact that this matter has not arisen until the first two percentage increases have actually passed. Importantly, in circumstances where the first increase was the large - is and is likely to be and continue to be the largest. So in relation to our submissions we rely upon what we have got in writing. We only highlight the matters that we have discussed here.
PN793
Now I think one of the things you had asked me to do was to try to provide an explanation as to the financial - or which of those two positions was placed by the company. I am instructed by my client that the initial position that he put in relation to quite large figures is the actual position of the company after having checked it. If the Commission pleases.
PN794
THE COMMISSIONER: Yes, all right. Yes, thank you very much, Mr Winnett. Ms Angus?
PN795
MS ANGUS: One simple point, Commissioner, what we are primarily seeking is a determination from you that the clause means that Thiess has an obligation to pay the gap. Yes? That is our primary position.
PN796
THE COMMISSIONER: On the conferring. The second clause is - - -
PN797
MS ANGUS: Well, our second - can I - that is, you know, if you are persuaded by our submissions, then that is the outcome that we would like to see is that sort of determination. In substitute or as an alternative position what we would like to see is a determination from you that there is an obligation imposed upon Thiess to confer with the union parties with a view to reducing the disadvantage as defined by the Commission. So if you are not of the view to simply describe the precise obligation in terms of a given outcome, but you are minded to describe a process, then we would be seeking a definition of how that process would resolve itself, and other than that I have no further submissions.
PN798
THE COMMISSIONER: Yes. What is your view about the possibility that I might consider it appropriate to issue a decision and recommendations? If I felt it didn't get the parties really to the point where there was really resolution, that is I would issue a finding with regard to the meaning of clause 10.4, but that that finding might not lead to a resolution of the disagreement between the parties.
PN799
MS ANGUS: Well, I think that would be unfortunate and I don't think that would be precisely the intention of section 170LW, which is that the Commission is empowered, given the dispute resolution procedure, to settle a dispute about the application and agreement. So we are bringing a dispute before you and seeking your assistance in settling it.
PN800
THE COMMISSIONER: Yes, but even you have said, looking at Vice President Ross' decision in Ansett that perhaps it is the narrower approach to focussing on what is very clearly and specifically in the - I am thinking aloud, Ms Angus, that a narrower approach might have me only delivering a finding as to the meaning of the clause and that might only get the parties half way towards being able to resolve the problem between themselves.
PN801
MS ANGUS: Well, Commissioner, even if you were to decide that a narrow interpretation led you to the conclusion that the clause only obliged the parties to confer.
PN802
THE COMMISSIONER: Yes.
PN803
MS ANGUS: Even if that is what you were to determine, you could still, within that determination, indicate your understanding of the meaning of disadvantage.
PN804
THE COMMISSIONER: Yes, but that might be - it might well be then that I might do that in a formal recommendation to the parties. That is what I am flagging. I don't know that is what I will do, but I am only flagging - it seems to me - if it is seen to me that was the best way to help the parties to get through to where it is I think they need to get through to, which is to reach an agreement on the outcome of the 10.4 process, then I might decide that I would issue a recommendation in addition to any finding about the meaning of 10.4.
PN805
MS ANGUS: We would be open to that as long as the forefront of everyone's mind was an attempt to settle the dispute.
PN806
THE COMMISSIONER: Yes, I agree totally, yes. Thank you very much. Nothing further, Mr Winnett?
PN807
MR WINNETT: Nothing further.
PN808
THE COMMISSIONER: Good. I thank the parties very much for their assistance. You have both been very helpful and I now adjourn. I will issue the decision as quickly as I can.
ADJOURNED INDEFINITELY [12.55pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A2 APPLICANT'S SUBMISSIONS PN122
EXHIBIT #A3 WITNESS STATEMENT OF PETER JOHN COMAN PN125
EXHIBIT #A4 WITNESS STATEMENT OF CHRISTOPHER O'BOYLE PN129
EXHIBIT #A5 LETTER TO MR IRONMONGER FROM AWU 17/09/2002 PN138
PETER JOHN COMAN, SWORN PN175
EXAMINATION-IN-CHIEF BY MS ANGUS PN175
CROSS-EXAMINATION BY MR WINNETT PN186
RE-EXAMINATION BY MS ANGUS PN214
WITNESS WITHDREW PN220
CHRISTOPHER O'BOYLE, SWORN PN223
EXAMINATION-IN-CHIEF BY MS ANGUS PN223
CROSS-EXAMINATION BY MR WINNETT PN232
WITNESS WITHDREW PN240
HUGH KELLY CAMPBELL, SWORN PN266
EXAMINATION-IN-CHIEF BY MR WINNETT PN266
CROSS-EXAMINATION BY MS ANGUS PN294
RE-EXAMINATION BY MR WINNETT PN389
WITNESS WITHDREW PN434
EXHIBIT #R1 MR WINNETT'S SUBMISSIONS PN436
TERENCE IAN ROSENGARTEN, SWORN PN436
EXAMINATION-IN-CHIEF BY MR WINNETT PN436
CROSS-EXAMINATION BY MS ANGUS PN456
WITNESS WITHDREW PN489
CHRISTOPHER O'BOYLE, RECALLED PN493
FURTHER EXAMINATION-IN-CHIEF BY MS ANGUS PN493
FURTHER CROSS-EXAMINATION BY MR WINNETT PN521
RE-EXAMINATION BY MS ANGUS PN540
WITNESS WITHDREW PN544
TERENCE IAN ROSENGARTEN, RECALLED PN546
FURTHER CROSS-EXAMINATION BY MS ANGUS PN546
WITNESS WITHDREW PN599
EXHIBIT #R1 SUBMISSIONS ON BEHALF OF THE RESPONDENT DATED 21/10/2002 WITH ATTENDANT THREE SCHEDULES PN602
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