C2002/6190, Transcript of Proceedings [2003] AIRCTrans 1519 (24 April 2003)

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:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT2361
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2002/6190

NATIONAL UNION OF WORKERS

and

STOMP PTY LIMITED and ANOTHER

Notification pursuant to section 99
of the Act of an industrial dispute
re log of claims

MELBOURNE

3.01 PM, TUESDAY, 8 APRIL, 2003

Continued from 14.3.03

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
AND RECORDED IN MELBOURNE

PN113

MS A. PARKES: I appear for the National Union of Workers.

PN114

MR P. ROBERTSON: I appear on behalf of KDB Engineering. Commissioner, could I just point out that it is a bit hard to hear Ms Parkes. I wonder if the microphone - - -

PN115

THE COMMISSIONER: Yes, I think she has got to speak up or else get closer to the microphone, and perhaps both.

PN116

MR ROBERTSON: Thank you.

PN117

THE COMMISSIONER: Ms Parkes, as I understand it, this is an application by the National Union of Workers to rope in KDB Engineering to an appropriate award of the NUW. Am I correct in that?

PN118

MS PARKES: That is correct, Commissioner.

PN119

THE COMMISSIONER: Thanks, Ms Parkes. It is your application, so perhaps we will ask you to start with it but before we do that we might just consider for a moment the issue of process here. It is intended, I think, Ms Parkes, that you would make an opening statement on behalf of the NUW seeking to rope in KDB Engineering to the relevant award. Mr Robertson, I take it that you will be opposing that application. Is that accurate?

PN120

MR ROBERTSON: That is correct, Commissioner.

PN121

THE COMMISSIONER: Is there anything we can do at this stage other than get the formal representations on the record to try and abbreviate what otherwise could well be a video conference link of a couple of hours? Ms Parkes, I imagine you are prepared to make your arguments right now.

PN122

MS PARKES: That would be correct, Commissioner. We would also note that in relation to particular issues raised we may be required to or you may want to examine the employer in this instance. To date, we have had no direct communication from the employer themselves and we note that Mr Robertson appears to be on his own in WA, that there has been no appearance from the employer. So I just note that if the employer is not here and depending on what submissions are raised, we may need to examine the employer. If the Commission pleases.

PN123

THE COMMISSIONER: Thank you, Ms Parkes. Mr Robertson, you are appearing on behalf of KDB Engineering?

PN124

MR ROBERTSON: Yes, Commissioner. I have already entered an appearance for one of the KDB Engineering's employees who is here with me now.

PN125

THE COMMISSIONER: Yes. Thank you. Is he actually physically in the room with you?

PN126

MR ROBERTSON: Correct, Commissioner.

PN127

THE COMMISSIONER: Just that we can't see him; that is all, and it gives the impression there is only one person in the room.

PN128

MR ROBERTSON: Apologies. Would you like Mr Soltys to come up to the bar table?

PN129

THE COMMISSIONER: Yes, of course, if he wishes. He is free to do whatever he wishes but if he sits at the table we can then see the individual concerned. Thanks for that. So, Mr Robertson, is there anything you need to seek to clarify at this stage or do you believe it is better that we simply go ahead and take the submissions of Ms Parkes?

PN130

MR ROBERTSON: Obviously, I perhaps seek some guidance from yourself, Commissioner. Our position is that the Commission is, in fact, prevented from arbitrating any further in this particular matter because of bargaining notices that are in place in relation to the terms and conditions of employment of KDBs employees in Victoria. Now, it is our position, Commissioner, that prima facie the bargaining notice in place, the document stands for itself. The issues that are in contention between the negotiating parties are, indeed, the full range of issues that the union addressed in its letter of demand and log of claims, which I think was received on 12 December last year.

PN131

We say that the issues that the union seeks a decision from the Commission on are precisely those issues that are in dispute between the negotiating parties. Because we say the bargaining notice in place and that the matters contained therein in those bargaining notices are matters that are in issue between the negotiating parties, we say prima facie that the Commission is, therefore, prevented from arbitrating on the union's application by the operation of section 170N of the Workplace Relations Act. Now, in terms of process, Commissioner, it would be our submission, obviously with your guidance, that given that that proposition has been put to the Commission, the onus then moves to the union to establish in one way or another that section 170N doesn't preclude the Commission from arbitrating in this matter.

PN132

THE COMMISSIONER: Mr Robertson, the bargaining notice, does that go to the issue of a possible enterprise agreement or does it go to the issue of roping in to the award?

PN133

MR ROBERTSON: I apologise, Commissioner, I hadn't realised that I would be unable to hand up documents to you but the bargaining notices that I am referring to, Commissioner, have BP numbers and there are four of them. They are all of numbers 2003. The first one is 215, the second is 216 and the third is 217 and they are bargaining notices that are in place between KDB Engineering and its three employees in Victoria. The fourth bargaining notice is BP2003/220 and that is a bargaining notice that is in place between KDB Engineering and the National Union of Workers.

PN134

The first three bargaining notices, Commissioner, are identical except for the name of the employee concerned. Commissioner, do you have these bargaining notices in your file or in front of you?

PN135

THE COMMISSIONER: I don't believe I have, Mr Robertson, but I don't need the actual detail of the notice, I would suggest. You are just simply informing me that there is a bargaining notice in place. What I think I should do is turn to Ms Parkes, get her to make her submissions; she will quite probably take account of the point you have just made. Following hearing Ms Parkes, I will then put your submissions on the record, Mr Robertson. At this stage I am not in a position to give you a definitive ruling on the point that you have just made.

PN136

MR ROBERTSON: Certainly.

PN137

THE COMMISSIONER: So I think we will go to Ms Parkes now and get the NUWs submissions on the record.

PN138

MS PARKES: If the Commission pleases. The issue before the Commission at this stage is in relation to 170N, which has been raised by the employers. Section 170N provides that a Commission is not to arbitrate during a bargaining period. Section 170N(1) states that:

PN139

During a bargaining period, the Commission must not exercise its arbitration under Part VI in relation to a matter that is at issue between the negotiating parties.

PN140

There is an exception provided at section 170N(2), that subsection (1):

PN141

...does not prevent the Commission exercising its arbitration powers to deal with an application to vary an award by making a safety net wage adjustment.

PN142

Although in this scenario we would submit that the exception does not apply in that we are not seeking to make a safety net adjustment. In this situation, we are actually seeking to make a safety net award. If I could just tender some documents, Commissioner. Whilst the union has not seen all four of the bargaining periods as indicated by Mr Robertson, we do have two in our position, which we will tender.

PN143

THE COMMISSIONER: There are some documents being passed up, Mr Robertson. Have you heard Ms Parkes in that regard?

PN144

MR ROBERTSON: Yes, I have heard that, Commissioner. Would we be able to, perhaps, identify the documents?

PN145

THE COMMISSIONER: Yes. Well, perhaps if they come up first and I just explain them to you.

PN146

MS PARKES: There are four documents, Commissioner. Perhaps it might assist if I went through those four documents and they might be tendered each one as a separate exhibit.

PN147

THE COMMISSIONER: Ms Parkes is going to spell out what the documents are, Mr Robertson.

PN148

MR ROBERTSON: Thank you, Commissioner.

PN149

MS PARKES: As indicated, Commissioner, the union has not seen the four bargaining period notices and we would have to take Mr Robertson at his word that two of those in relation to individual employees are in existence or in the format as stated. What we have got is bargaining period notice BP03/219, which indicates that - which has been signed by Mr Robertson of the Chamber of Commerce and Industry WA, agent for KDB Engineering, indicating that under section 170MI(2) of the Workplace Relations Act, notice is given by the company to try to make an agreement under division 3 of part VIB of the Act with the National Union of Workers. The particulars specified, the relevant one here is at point (c):

PN150

The matters KDB Engineering Pty Limited proposes should be dealt with by the agreement include all the matters referred to in the letter of demand dated 10 December 2002 and log of claims attached thereto from National Union of Workers.

PN151

There is no other detail in relation to any other matters that the company seeks to have negotiations about. So that is the first document, Commissioner.

PN152

THE COMMISSIONER: Is this the one with the coversheet on it, Ms Parkes?

PN153

MS PARKES: That is correct, Commissioner.

EXHIBIT #P1 BARGAINING PERIOD NOTICE BP03/219 SIGNED BY MR ROBERTSON, DATED 14/02/2003, ADDRESSED TO NATIONAL UNION OF WORKERS

PN154

THE COMMISSIONER: This is the document dated 14 February 2003, signed by you, Mr Robertson, which is addressed, I believe, to National Union of Workers.

PN155

MR ROBERTSON: That is correct, Commissioner. Just if I could interject, I don't wish to interrupt Ms Parkes but the Commission originally gave that document BP03/219 and subsequently informed me that that document is now BP03/220, which is the confusion, I think, that has arisen over the actual numbers 219 and 220.

PN156

THE COMMISSIONER: Good.

PN157

MS PARKES: The second document in that bundle, Commissioner, does not have a bargaining period number on it and, indeed, was not given to us by the company. It was instead faxed to us from one of our members at KDB and it purports to be a notice of initiation of a bargaining period under section 170MI(2) that KDB Engineering seeks to make an agreement, in this case under division 2, unlike the division 3 sought with the union, with Ian Aloysius Craggs, and the employee's address is then stated there. The particulars in relation to the matters to be dealt with by the agreement are outlined at point (c):

PN158

The matters KDB Engineering Pty Limited proposes should be dealt with by the agreement include all the matters referred to in the letter of demand dated 10 December 2002 and log of claims attached thereto, which was the subject of proceedings before Commissioner Mansfield of the Commission on 22 January 2003 and identified as matter C2002/6190.

PN159

And, once again, that is signed by Mr Robertson and it is dated 7 February, one week prior to the bargaining period that was initiated on the union and, once again, Mr Robertson is acting as agent for KDB Engineering. There is no direct bargaining period from the company.

EXHIBIT #P2 DOCUMENT SIGNED BY MR ROBERTSON DATED 07/02/2003 PURPORTING TO BE NOTICE OF INITIATION OF BARGAINING PERIOD FOR AN AGREEMENT WITH EMPLOYEE

PN160

THE COMMISSIONER: You are familiar with that, Mr Robertson?

PN161

MR ROBERTSON: Yes, Commissioner, and the Commission here has given that document BP2003/217.

PN162

THE COMMISSIONER: Good.

PN163

MS PARKES: The next document in that bundle is covered by a facsimile coversheet to Mr Renato Marasco of the Australian Industry Group and attached to that - Mr Marasco, as the Commission will recall, acted for KDB at the proceedings on 22 January in relation to the finding of the dispute.

PN164

After the cover head is a facsimile receipt and then correspondence dated 29 January to KDB Engineering from Mr Greg Sword, the general secretary of the union, and that indicates that on 22 January the Commission as presently constituted found the dispute to be in existence, that the union is proposing that the company become respondent to the Storage Services - General - Award 1999 and that an attached roping in award is there for their consideration, and that if within a seven-day period the company hasn't consented, that the union would then seek to make application to the Commission to make an award. Then attached to that letter is, obviously, a copy of the roping in award sought by the union.

EXHIBIT #P3 DOCUMENTS INCLUDING CORRESPONDENCE DATED 29/01/2003 TO KDB ENGINEERING FROM NUW GENERAL SECRETARY AND PROPOSED ROPING IN AWARD

PN165

THE COMMISSIONER: Mr Robertson, you have copies of that document?

PN166

MR ROBERTSON: No, I didn't know that document was in existence. I haven't seen it before or heard of it.

PN167

THE COMMISSIONER: If I might describe it to you, it is a letter dated 29 January. It is addressed to the Manager of KDB Engineering in Mulgul Road, Malaga. It is four fairly short paragraphs, which is basically a claim by the National Union of Workers for KDB Engineering to become respondent to the Storage Services - General - Award 1999 and it enclosed a copy of that award; that is the roping in award I am talking about, the draft.

PN168

MS PARKES: And if I could further add, Commissioner, that - - -

PN169

THE COMMISSIONER: Sorry. Just before you go on - Mr Robertson, do you want to make any comment on that at this stage?

PN170

MR ROBERTSON: Yes, Commissioner. Firstly, did it indicate what the union intended to do if it didn't get a response to that?

PN171

THE COMMISSIONER: Yes, it did. It said that - I will quote it to you:

PN172

Please advise National Industrial Officer, Antonia Parkes, within seven days in relation to whether KDB Engineering Pty Limited consents to the making of the roping in award and/or if you require a meeting to discuss the union's proposal. Should you fail to contact this office within seven days, application will be made to the Australian Industrial Relations Commission to make the award.

PN173

That is the penultimate paragraph in the letter. Ms Parkes?

PN174

MS PARKES: If I could further add to that - - -

PN175

MR ROBERTSON: Sorry. If I could, Commissioner, one other thing; is there attached to that a confirmation that the fax was sent?

PN176

THE COMMISSIONER: It was sent by certified mail, the letter. It was a letter sent by certified mail on 29 January this year.

PN177

MS PARKES: If I could add, Commissioner, it was also sent by fax to Mr Renato Marasco, who acted for the company and, further, I had a telephone discussion with Mr Renato Marasco upon him receiving that correspondence and that he indicated that he had communications with the company - he didn't specify who - in relation to this. Given that Mr Marasco appeared in person on behalf of the company in the proceedings on 22 January, it was highly appropriate for the union, as well as sending via certified mail to the company, a copy of the correspondence to Mr Marasco, and Mr Marasco indicated that he had received it and that he had had communications with the company and the company was considering its position.

PN178

THE COMMISSIONER: And, Mr Robertson, just to add to that, there is a copy of a transmission verification report of the fax being sent from the union national office to a number which I assume would be the Victorian division of the Chamber of Commerce and Industry.

PN179

MS PARKES: The fax, if you will note, matches the fax on the coversheet to Mr Marasco of the Australian Industry Group.

PN180

THE COMMISSIONER: Yes.

PN181

MS PARKES: But, in any event, he did confirm that he had received that correspondence. We did speak about it on the telephone.

PN182

MR ROBERTSON: So that effectively is a fax to Mr Renato; is that correct?

PN183

THE COMMISSIONER: Mr Renato Marasco.

PN184

MR ROBERTSON: Marasco.

PN185

MS PARKES: But the letter itself - what was faxed to Mr Marasco was a copy of the letter to KDB Engineering.

PN186

MR ROBERTSON: So are you saying the letter was sent to KDB Engineering in Western Australia?

PN187

MS PARKES: That is correct and, further, that a copy of that letter was received by Mr Marasco and he confirmed via telephone that he had received that letter and had spoken to the employer in relation to it.

PN188

THE COMMISSIONER: The address on the letter - this is the letter which was sent by certified mail on 29 January - is The Manager, KDB Engineering Pty Limited, 100 Mulgul Road, Malaga, Western Australia 6090. Is that the correct address of the company?

PN189

MR ROBERTSON: I believe it is, yes. Yes, it is, Commissioner.

PN190

THE COMMISSIONER: Ms Parkes.

PN191

MS PARKES: Sorry, I don't believe we marked an exhibit number for that? Would that - - -

PN192

THE COMMISSIONER: There is one to go, Ms Parkes, I think.

PN193

MS PARKES: - - - be exhibit P3?

PN194

THE COMMISSIONER: It is P3. Mr Robertson, you should be aware that conversations your end come through this end. If you wish to mute you have got to push the button in the centre of that little microphone on your desk.

PN195

MR ROBERTSON: Thank you, Commissioner.

PN196

MS PARKES: Actually, sorry, Commissioner, I do not need to take you to the fourth document, sorry. So just the first three documents that I have tendered, exhibits P1, P2 and P3. Commissioner, I would open in saying that other than those three pieces of correspondence and a piece of correspondence from Mr Robertson prior to the dispute finding being made in relation to whether the letter of demand and log of claims had been properly served on the other employer in this matter - such issue has been dealt with and resolved - that there has been no further written communications between the parties other than, obviously, the notice as listed, the initiation of bargaining period and, further, that there has been since the dispute finding no telephone communication between the parties and, indeed, there has been no direct communication whatsoever between the employer and the union.

PN197

THE COMMISSIONER: So, Ms Parkes, are you saying that in response to the items of correspondence that the National Union of Workers has directed to the company that the union has not received any written response or telephone response to those?

PN198

MS PARKES: What the union would submit is that other than my conversation with Mr Marasco of the Australian Industry Group, who advised that he was still seeking instructions from the company on this matter, we have had no communication, other than the initiation of the bargaining period, from the company, either of their two representatives, the Chamber of Commerce and Industry or the Australian Industry Group, or from the company itself in relation to this matter or in relation to the proposed agreements.

PN199

THE COMMISSIONER: Good.

PN200

MS PARKES: Now, section 170N, as Mr Robertson has pointed out, prohibits the Commission from arbitrating matters that are at issue between the negotiating parties during an existing bargaining period. There is a range of issues that arise in relation to this section of the Act. Firstly, there must be a bargaining period in existence and then two other issues in relation to the genuineness of the bargaining period and the fact that the matters in the bargaining period must be at issue between the negotiating parties.

PN201

Here, by way of opening, Commissioner, we would submit that there are no negotiations on the matters contained in the log of claims and letter of demand, that there is no specific details as to the matter at issue and, therefore, it cannot be established that matters are at issue between the parties and that, accordingly, the Commission is not refrained by the operation of section 170N from making a safety net award on the basis that the matters are not at issue between the parties.

PN202

Now, as indicated, the union is seeking to have a safety net award made to cover the Victorian operations of KDB Engineering which, as Mr Robertson has indicated, involves precisely three employees. We should note that there is no other award or enterprise agreement in place at that workplace. What I would propose to do is address the issue of jurisdiction to the Commission, and depending on the Commission's view in relation to that, would then submit a copy of the roping-in award sought by the union.

[3.25pm]

PN203

We would submit that a bargaining period can only be initiated if the parties are genuine in their desire to negotiate an agreement. Here there is no evidence that the employer genuinely does seek to negotiate an agreement. Other than the bargaining period, and we note that there is four of them. One to the union, and three to each of the individual employees in question. As stated there has been no correspondence or communication with the union in relation to what the proposed agreement - what the details of the proposed agreement might be, what sort of ambit or issues there might be exactly discussed in the agreement.

PN204

Nor, as stated, has there been any communication from the company itself. The evidence before the Commission, as I said, is limited to those exhibits that have been tendered. We would also note that the bargaining period that has been served, or each of the four bargaining periods, has been sent after the receipt of the union's correspondence, indicating that if we do not hear from the company we would seek the making of the award, and we would state that the issuing of the bargaining periods has been used by the company as a device and an attempt to prevent the Commission from making a safety net award.

PN205

The fact that Mr Marasco has confirmed receipt of the correspondence, and indicated that he has advised the company of that, and the fact that the certified mail indicates that the company was in awareness of the union's desire to create a safety net award. So we would note that, as I stated, that the bargaining periods were served after the union's communication, and we would note the deficiency in identifying the matters at issue would affect the validity of the notices served under section 170MI, in that there is merely a reference to all the issues contained in the log of claims and letter of demand, rather than outlining any specific issues, any issues that might have too much ambit in them arising from the log of claims which would be reasonable to be discussed in a first agreement, etcetera.

PN206

Now, in terms of looking at issues, what factors give rise to matters being at issue, whether a matter is at issue, to use the words of section 170N, depends on the factual circumstances, such as whether the parties were acting in a bona fide manner and bargaining in good faith. If I could tender three decisions, Commissioner.

PN207

THE COMMISSIONER: Can you reach across the table there, Ms Parkes, and can my Associate reach - if you both, sort of, stretched your arms. If it is not possible to stretch that far - good. Thank you.

PN208

MS PARKES: The first decision, Commissioner, is a decision by Commissioner Smith dated 15 June 2000 in relation to the National Tertiary Education Industry Union v the Australian Higher Education Industrial Association, and that is found at Print S7058.

EXHIBIT #P4 3 DECISIONS, PRINTS S7058, S0470, AND S5283

PN209

MS PARKES: I will read out the titles of the other two decisions then, Commissioner. We have a decision of Commissioner Laing, dated 29 October 1999, the Australian Liquor, Hospitality and Miscellaneous Workers Union v AA Status Carpet Cleaners and Others, found at Print S0470; and then a decision of the Full Bench in relation to Commissioner Laing's decision. A decision of SDP Polites, DP Fielding and Commissioner O'Connor dated 28 April 2000, found at Print S5283.

PN210

THE COMMISSIONER: I notice that matter concerned a company in Perth as well, Ms Parkes.

PN211

MS PARKES: I think that the Chamber of Commerce and Industry acted in that matter. It was an issue, similarly, in relation to the issuing of bargaining periods. If I could take the Commission firstly to the decision of Commissioner Smith, and in this decision Commissioner Smith looks at what factors give rise to matters being at issue, and found that whether a matter is at issue depends on the factual circumstances, such as whether the parties were acting in a bona fide manner and bargaining in good faith.

PN212

If I could take you to paragraphs 8 to 11 of the Commissioner's decision. He states:

PN213

The controversy remains as to what factors give rise to a matter being at issue. There can be little doubt that where a subject matter is included in a bargaining notice, prima facie, the matter is at issue between the parties. ...(reads)... To the extent that the exercise of arbitral power is constrained, the bargaining must be bona fide, or in other words, the parties must be bargaining in good faith.

PN214

And in that particular decision the Commission then found that it was appropriate to have the matter arbitrated between the parties, notwithstanding that that was a matter that was raised in the bargaining process. We would submit, Commissioner, in line with that decision, that here we have nothing more than a sham. We have bargaining periods notices that have been initiated that refer briefly to the terms and conditions in the log of claims and letter of demand, do not detail in any great detail the issues or the matters to be in issue between the parties. Further, that there has been no communications from the employer or either of their advisers as to a draft copy of an agreement or a meeting date or communications as to how they might like to progress the agreement.

PN215

Notwithstanding that the dates of these bargaining periods are the 7th and the 14th day of February, and we are now in a situation of early April, for a bargaining period to be issued in a two month lapse with absolutely no communication from the company or its advisers in relation to progressing the bargaining period would certainly seem to indicate that there is not a situation of good faith or a genuine desire to actually start negotiating, and it would suggest that matters are not at issue between the parties, because in line of that decision of Commissioner Smith, there has been no bona fide effort or good faith attempt to bargain at all.

PN216

So we would submit that a sham does not put a matter at issue between the parties, and here is such a situation that a sham is in existence, and that further, such a sham is merely a device to avoid the making of a safety net award by the Commission. Now, in the Australian Liquor, Hospitality and Miscellaneous Workers Union v AA Status Carpet Cleaners and Others, we have got the decision of Commissioner Laing at first instance, and then the decision of the Full Bench on appeal. Now, this decision concerned an application by a union for a safety net award, and Commissioner Laing examined the implications of the fact that no safety net award applied to the industry in question, and it was necessary to reconcile to the greatest extent possible the apparent inconsistency between the obligation that the Commission refrain from arbitration between bargaining parties and the obligation to make a safety net award. This called for an examination of the matters at issue under section 170N and the nature of an award safety net. In this particular case, similarly, the WA Chamber of Commerce and Industry acted as agent for a range of employers, and similarly, in relation to - outlining issues in the bargaining period, referred to a dispute finding between the employers and the union in that matter.

PN217

So a similar scenario to here, and Commissioner Laing considered that the matters at issue should not be expressed so as to prevent the making of a safety net award unless clearly and specifically shown to be at issue, and in that matter Commissioner Laing found that matters at issue were not sufficiently clearly expressed so as to properly identify the matters between the parties as the Act required. The notifying employers in that matter had not satisfied the obligation to identify those issues which should not be unduly exaggerated and unachievable in a single agreement, and free from excessive ambit where safety net entitlements had not been established.

PN218

If I could just take you to parts of the Commissioner's decision. If I could take you to paragraphs 72, 73 and 75. At paragraph 72 the Commissioner indicates the matters at issue are the whole of the ambit of the earlier dispute found to be in existence between the union in that matter and the employers in question. He notes there that ambit, in that context, cannot be ignored, and any attempt to transfer the total ambit from a dispute under part VI into a notification of bargaining period under part VIB may well result in an invalid notification where there is no award safety net in place.

PN219

MR ROBERTSON: Sorry to interrupt. Could you just tell me what you are reading from, please?

PN220

MS PARKES: Paragraph 72.

PN221

MR ROBERTSON: Of what?

PN222

MS PARKES: Commissioner Laing's decision.

PN223

MR ROBERTSON: Okay, thank you. Sorry.

PN224

THE COMMISSIONER: This - yes.

PN225

MS PARKES: Further, at paragraph 73:

PN226

Alternatively, it may result in the conclusion that section 170N has no application in circumstances where the matters in issue are not adequately described. In the present instance there is no Federal award or agreement, and the obligations of the relevant State award may be avoided.

PN227

And further, at paragraph 75:

PN228

I consider that it follows that the matters at issue, therefore, should not be expressed so as to prevent the making of a safety net award unless clearly and specifically shown to be at issue. ...(reads)... and free from excessive ambit where safety net entitlements have not been established.

PN229

There is also a reference in Commissioner Laing's decision at paragraph 76 and 77. The issue of agency. Here we have a situation where there is one employer that is seeking to arrange, or seeking to negotiate an agreement with the union. Now, as noted, Mr Robertson has signed the bargaining period notices as agent for the employer, even though that there is just the one employer there. It is not a scenario where there is multiple employers and there needs to be an agent arrangement. But secondly, in terms of the genuineness, we would perhaps emphasise the point made earlier, that we have had no communications from either the employer or their alleged agent in relation to identifying the matters at issue, and in relation to progressing bargaining or discussions or negotiations in relation to the proposed agreements.

PN230

We have got here that the Chamber of Commerce and Industry, as agent, has signed the bargaining period notices, but there is no evidence before the Commission that the Chamber has had proper authority to act in that particular manner. We would also note, in relation to Commissioner Laing's decision, issues arose in relation to the genuineness of the notifications. As indicated, we have raised the issue that we are not of the view that the employer is genuinely trying to negotiate an agreement. More, that the initiation of the bargaining periods are a sham or a device to avoid a safety net award being made.

PN231

If I could take you to paragraph 94 of Commissioner Laing's decision, there is a note where he states that:

PN232

The elapse of time will become significant if an employer chooses simply to delay making any agreement under the Act in order to take advantage of the situation. ...(reads)... to legitimate questions going to the genuineness of the notifications of bargaining period by such people.

PN233

The union argued here that the employers have not taken the steps which would indicate that they are genuine. However, the respondents reply by pointing out the complexities of the issues, the need to prepare their proposals, and by arguing that they have been prompt in comparison to the pace of the union's application, and here we have a situation, Commissioner, not where we are dealing with multiple employers, as we were then, but where we are dealing with one employer where it would not appear that the issues are complex, but that the employer has not advanced, in any detail, the issues or what it might be prepared to settle on in relation to its proposed agreement with either the NUW or in relation to the individual employees.

PN234

If I could take you to paragraph 100 of the Commissioner's decision:

PN235

It brings into sharp relief here whether the generalised log of claims is sufficient to satisfy the legislative obligations under section 170MJ(3) and section 170N. It also gives rise to the issue of whether the employer seriously sought what was claimed, or whether it is intended that a more limited range of issues would be addressed.

PN236

And then, at paragraph 101:

PN237

As discussed earlier, the matters at issue may not be genuine if they are put by the employer, or are not sufficiently clear, or are unduly exaggerated when they have an impact on the minimum safety net. While an agreement can be reached in respect...(reads)... of options. If it results in a safety net being established, which is then also consistent with the Commission's no disadvantage test, both legislative obligations may be met.

PN238

And then further, at paragraph 103:

PN239

It follows that the initiation of a genuine bargaining period would be consistent with the foregoing distinction. However, because a bargaining period prevents the making of ...(reads)... the matters at issue, and not contain extreme or exaggerated demands, or unrealistic ambit.

PN240

And we would say that in this case a reference to all the matters, all the log of claims attached to the letter of demand by the union, which might contain terms that have got a sufficient amount of ambit in there, and the fact that the bargaining period only refers to that, is not a realistic outline of the matters at issue, in that there is reference to perhaps exaggerated demands, or unrealistic ambit that the employer would not be prepared to agree to. Then at paragraph 104, Commissioner Laing proceeds to state that even if that is not correct and is too restrictive:

PN241

It is still difficult to accept in the context of the notified bargaining period, which here prevents the union seeking safety net entitlements, that the notices as to the matter ...(reads)... award demands and log of claims, which are perhaps convenient, but are not a clear reflection of the employer's objections.

PN242

And then, at paragraph 107:

PN243

In conclusion, the Commission finds that the Commission is prevented from exercising its arbitration powers to make a safety net award under part VI of the Act in ...(reads)... lack genuineness and are therefore no barrier to the hearing of the safety net application by the union.

PN244

THE COMMISSIONER: Ms Parkes, does the union accept the first of those dot points in para 107? That is:

PN245

The Commission is prevent from exercising its arbitration powers to make a safety net award under Part VI of the Act in relation to the matters at issue between the parties under a properly initiated bargaining period.

PN246

And is it your submission that this is not a properly initiated bargaining period, and it is, in fact, as you said, a sham, and for that reason the provisions in the Act preventing the Commission from exercising its arbitration powers do not apply.

PN247

MS PARKES: That is correct, Commissioner, and that further, that there are - the bargaining - it cannot be established that matters are in issue between the parties with the further limb of that argument, but yes, Commissioner. That would be the union's position.

PN248

THE COMMISSIONER: Thanks, Ms Parkes.

PN249

MS PARKES: Now, the Full Bench confirmed in the most part Commissioner Laing's decision, and whilst making it clear that section 170N should be given its plain meaning, that is that the Commission may not exercise its arbitration powers in relation to matters at issue between the negotiating parties where a valid bargaining period has been initiated. As I said, once again that raises the issue of matters at issue, and it is the union's contention that that requirement has not been met. Now, if I could take you to paragraph 16 of the Full Bench's decision.

PN250

THE COMMISSIONER: Are you familiar, Mr Robertson, with the document we are referring to?

PN251

MR ROBERTSON: Yes, I am, Commissioner.

PN252

THE COMMISSIONER: Good.

PN253

MS PARKES: Now, the Full Bench refers to the conclusions made by Commissioner Laing, and it also refers to authorities raised by counsel for the union there in relation to the existence of a genuine industrial dispute, and whether the industrial dispute should be treated as a sham, and in that case it indicates that:

PN254

... we have considered the further evidence on that material ...

PN255

and in the view of the Full Bench it was not established in that particular case. What they noted there was that there was evidence in that particular scenario with the multiple employers that the employers had had a history of negotiations with the particular union in relation to the making of an award that those negotiations would break down, and that each individual employer had some complex issues that might not be the same with other employers in that particular matter, and therefore there was evidence to say, in that particular matter, that the employers in question were seeking to genuinely have negotiations.

PN256

We would submit that in this particular case, Commissioner, that evidence and those facts are not present. We did not have a situation of multiple employers with different employers having different requirements and not wanting to be bound by a common instrument with other employers. We do not have the situation where there has been any communication whatsoever from the company or the employer in this case with the union, and we do not have the situation where there has been communication from the employer's advisers to the union.

PN257

Further, unlike this matter where there was a history or a background of negotiations between the parties, there is no such background or negotiations present in this matter. There has been no discussions as stated in relation to the agreement and the nature of the agreement, and how agreement negotiations might progress, so we would submit there was a very different scenario in existence. Whereas, whilst in that decision the Full Bench found that there was that evidence in place in that matter, it couldn't be found that there wasn't the genuineness there. We would say, in this scenario it can be distinguished.

[3.50pm]

PN258

So we, on a final note, Commissioner, if I could just conclude, we would submit that the evidence before the Commission in relation to the communications between the parties, the actual timing of the bargain period notices, after the receipt of the union's correspondence and after discussions with the company's adviser confirming receipt of that correspondence, the fact that the notices were issued after that with the company being aware that the union would seek that an award be made, indicates that this particular scenario, the bargaining periods are nothing more than a sham in an attempt to avoid the making of a safety award and that further, how the bargaining period notices are expressed it is not clearly defined as to what matters are at issue between the parties. The fact that there have been no negotiations, no bona fides by the company in relation to that would support that argument. If the Commission pleases.

PN259

THE COMMISSIONER: Thanks, Ms Parkes. Ms Parkes, just before you sit down, the letter from the union to the company was dated 29 January, we are now in early April - - -

PN260

MS PARKES: That is correct.

PN261

THE COMMISSIONER: Just to confirm, there has been no communication back from the company to the union or to the individuals concerned, as far as you are aware, in relation to this matter, excepting for the notices of the bargaining period?

PN262

MS PARKES: That is correct, Commissioner.

PN263

THE COMMISSIONER: Yes, thank you.

PN264

MS PARKES: If the Commission pleases.

PN265

THE COMMISSIONER: Mr Robertson.

PN266

MR ROBERTSON: Thank you, Commissioner. It is interesting that the union raises, to a large extent and appears to rely upon the decision of Commissioner Laing, in relation to his views about what matters are at issue. I am not as familiar with Commissioner Laing's decision as I am with the Full Bench decision and my reading of the Full Bench decision is that the Full Bench at paragraph 22 of that decision, says:

PN267

In the final result we quash the decision of Laing C, in relation to the following employers who we identified from the material, to have expressly authorised CCIWA prior to the service of the bargaining notices.

PN268

On my reading of that decision, the Full Bench quashed the decision of Commissioner Laing in relation to those employers who had properly authorised CC to act on their behalf to initiate the bargaining period. In other words, my reading of that decision is that the Full Bench has said that the initiation of the bargaining period, whereby the matters in issue were expressed to be those matters that were contained or to include those matters contained in a letter of demand and log of claims that was served on those employers, to be entirely appropriate.

PN269

And that is my understanding of the Full Bench's decision. So to the extent that the union relies upon Commissioner Laing's decision as authority for the proposition that by spreading the matters in issue as widely as the union did in the log of claims that it served, is somehow not specific enough to put those matters at issue. To that extent, we think the union is in error.

PN270

THE COMMISSIONER: Mr Robertson, as I read paragraph 21 and you are no doubt much more familiar with this particular Full Bench decision than I am but, as I read paragraph 21, paragraph 22 is really responding to a scenario which is set out in paragraph 21 and that is that part of the argument in the matter on appeal, went to the issue of whether or not CCIWA was authorised to act as an agent in a range of matters regarding initiating a bargaining period, and in regard to a range of employers it was found that, yes, CCIWA had been authorised prior to the initiation of the bargaining period. Is that your reading of it?

PN271

MR ROBERTSON: That is correct, Commissioner, yes. And it is paragraph 23, Commissioner, the Full Bench goes on to say:

PN272

In relation to those employers listed in paragraph 22, we hold that Laing C is precluded by section 170N from exercising arbitral powers including powers to make a safety net award.

PN273

THE COMMISSIONER: Does the Full Bench decision deal with the issue that has been essentially relied on by Ms Parkes, and that is the issue of a potential sham, to use her word, in regard to the initiation of a bargaining period? In part, Ms Parkes is relying on the proposition that says that where an employer initiates a bargaining period without a genuineness, in terms of its intentions to bargain, and instead initiates that period merely to prevent the Commission from exercising its arbitral powers in relation to the making of a safety net award, the Commission can go beyond the restraint in 170N and if it finds the process is, in fact, a sham, and arbitrate in a situation where the employer is not consenting to be roped in to the award.

PN274

MR ROBERTSON: Commissioner, can I turn your attention to paragraph 16 of the Full Bench decision, wherein the Full Bench says that it turns next to the question of the genuineness of the bargaining notice. And in this respect, Laing C concluded that:

PN275

The employers were aware ...(reads)... agreements which suit their own circumstances.

PN276

If I could just stop there, Commissioner, it is our position that the test for the Commission to examine is whether, when the employer initiated the bargaining notice it wanted to reach an agreement, and that simply is the test. The behaviour of the employer subsequent to the issuing of the bargaining notice and indeed, to some extent, prior to the issuing of the bargaining notice, is not the relevant test. We say the relevant test is at the time the bargaining notice was initiated, did the employer want to negotiate an agreement. Those are the express terms of section 170. They don't talk about genuinely want, they talk about want - did the employer want to make - did the employer want to make an agreement.

PN277

So it is section 170MI I am referring to, Commissioner, where MI(1) says that:

PN278

If an employer or an organisation of employees or an employee acting on his/her own behalf and on behalf of other employees, wants to negotiate and agreement under division 2 or division 3 in relation to employees who are employed -

PN279

and so forth. Now we say, Commissioner, the test is whether the employer wants to negotiate an agreement. And if - and that the Commission or rather the union has to displace the prima facie position of the employer that when they initiated the bargaining period, at that point in time, they wanted to negotiate an agreement. Now if I can go - - -

PN280

THE COMMISSIONER: Mr Robertson, in part Ms Parkes has suggested, firstly, the lack of detail in the notice of the bargaining period, is an indication of a lack of genuineness and that is that no specific matters have been referred to which could constitute a difference in position between that advocated by the union and perhaps that sought by the employer; so the lack of detail in the notice. Secondly, she is suggesting that the absence of any communication from the employer to any of the communications sent by the union, and the absence of any attempt by the employer since the issue of the notice of bargaining period, to try and establish a timetable for negotiation or to set out a range of views which the employer might have in relation to the negotiation, is an indication that the employer proposal to bargain on this matter is not genuine. Do you have anything to say on those matters?

PN281

MR ROBERTSON: Yes, Commissioner, I do.

PN282

THE COMMISSIONER: That is, the absence of any follow-up. It seems to me that the employer issued a notice of a bargaining period on the 14th day of February or thereabouts and - which is roughly two months ago. Can you point to any attempt by the employer, since that time, to communicate with the union to set up a timetable for holding meetings or anything of that nature?

PN283

MR ROBERTSON: Commissioner, as I indicated, I don't believe that is the test that is required to be conducted by the Commission in assessing whether the bargaining notice that has been initiated, prevents the Commission from exercising its arbitral powers.

PN284

THE COMMISSIONER: No. I hear what you say in that regard, Mr Robertson, but at the end of the day, it is for the Commission to make a decision as to the submissions that are being made by the union in this case and the employer, through yourself. And I am just asking the question, that in the two months since the correspondence was sent regarding the initiation of a bargaining period which followed immediately on the correspondence from the union, seeking to rope the employer into the award, what efforts have been made by the company - and I would like you to be precise in this regard. What efforts have been made by the company to initiate a process of bargaining? You have sought a bargaining period but what has the company done to bargain?

PN285

MR ROBERTSON: In the first instance, Commissioner, there appears to be a presumption that the correspondence of the union has been received by the company here in Western Australia. Secondly, Commissioner, I suspect it might be best if we call evidence to answer your question rather than to make assertions from the bar table.

PN286

THE COMMISSIONER: Certainly, I think it is probably going to be necessary to hear that evidence. In regard to the correspondence, I have been advised, at least I am looking at the material that has been submitted which has indicated that the correspondence was sent by certified mail and the Commission has also been given a copy of a fax transmittal sheet which indicates the fax was received by the employer representative here in Victoria who appeared in the first instance, who, in communication verbally with Ms Parkes, indicated that he was going to communicate with the employer in Western Australia. So in terms of the receipt of the information, there are two separate bits of evidence to suggest that it was properly conveyed - and perhaps your witnesses could address those matters as well.

PN287

MR ROBERTSON: He will, Commissioner. In terms of the progress of this matter, Commissioner, might it be an idea if we call evidence at this point in time?

PN288

THE COMMISSIONER: Yes, happy to, Mr Robertson, if that is what your wish is.

PN289

MR ROBERTSON: All right. Can your associate administer an oath, Commissioner, because I am not going to here?

PN290

THE COMMISSIONER: Yes, we will, from this end. Would your witness prefer to take an oath or make an affirmation?

PN291

MR ROBERTSON: I will just explain the difference if I may, Commissioner.

PN292

THE COMMISSIONER: By all means.

PN293

MR ROBERTSON: Or perhaps, would you like to explain the difference?

PN294

THE COMMISSIONER: Well you take an oath by reference to the Bible. You make an affirmation as a direct assertion that you will tell the truth.

PN295

MR SOLTYS: In reference to the Bible is fine.

PN296

THE COMMISSIONER: Okay. You will take the oath then?

PN297

MR SOLTYS: Yes.

PN298

THE COMMISSIONER: I will ask my associate to administer the oath.

PN299

MR ROBERTSON: Should Mr Soltys sit next to me, Commissioner?

PN300

THE COMMISSIONER: Yes, I think it would be more convenient if he did.

PN301

MR ROBERTSON: If he sits next to me?

PN302

THE COMMISSIONER: Yes, where he was before. I will ask my associate to go through the process.

<ANDREW DUNCAN SOLTYS, SWORN [4.06pm]

<EXAMINATION-IN-CHIEF BY MR ROBERTSON

PN303

THE COMMISSIONER: Good, Mr Robertson, it is your witness and so I will leave it to you to take the witness through the evidence, please.

PN304

MR ROBERTSON: Thank you, Commissioner. Mr Soltys, what is your current employment?---I am the Operations Manager for KDB Engineering WA.

PN305

And is KDB Engineering Proprietary Limited a legal entity in its own?---It is.

PN306

And how long have you held that position for?---For two years.

PN307

Can you describe, please, the operations of KDB Engineering in Western Australia?---KDB Engineering is the parent company for three companies, K-Care, Care Equipment and Shoprider. K-Care manufactures hospital furniture, nursing home furniture and the like. Care Equipment manufactures hospital beds and Shoprider imports and distributes motorised scooters for the elderly.

PN308

How long has KDB been operating in Western Australia?---Approximately 30 years.

PN309

How many employees does KDB have in its Western Australia site?---Roughly 80.

PN310

And what processes are involved in the operations in Western Australia?---Quite a variety but really manufacturing furniture, hospital furniture from raw components, steel, plastic, vinyl etcetera, cutting, chopping, grinding, welding, to the final product and the distribution, assembly and distribution.

PN311

Are there storage facilities in Western Australia?---There are.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN312

Can you describe the Victorian component of KDBs operations, please?---It is identical to the final assembly and storage and distribution in WA.

PN313

How many persons do you have working in the storage and distribution area of Western Australia?---In the storage and distribution there is two employees. There is one salesman.

PN314

Is this in Western Australia or in Victoria?---In Victoria, sorry.

PN315

How many in Western Australia?---Approximately eight.

PN316

What is the distinction between the work that your employees in Victoria do in storage and distribution, and the work that your employees in Western Australia do in storage and distribution?---Very little distinction.

PN317

Okay. For those employees in Western Australia, do you use anything to regulate their terms and conditions of employment?---The Furniture Trades Award.

PN318

How do your - - -

PN319

THE COMMISSIONER: Is that a Federal award or a State award?---A State award.

PN320

MR ROBERTSON: I have a copy, Commissioner, of the Furniture Trades Award that I was going to hand up but it is a little bit difficult.

PN321

Does the Furniture Trades Award in Western Australia, govern your store personnel?---Yes.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN322

In relation to your store personnel in Victoria, how have you regulated their terms and conditions of employment?---We have always assumed, as such, that they come under the same award. There has never been any disputes or any issue in Victoria, so we have just applied the same award or the same conditions to them.

PN323

Have you had any discussions within your organisation about industrial instruments to cover the terms and conditions of employment of your employees?---Yes.

PN324

When was - when did you start having - in relation to this particular matter, when did you start having these discussions?---Really in October of last year there was a lot of discussions in WA regarding the cessation of workplace agreements and at that time we started talking to - we started talking to the CCI regarding what we could then put in place or what instruments we then had access to.

PN325

So when did this occur?---October.

PN326

Last year?---Yes.

PN327

What sort of options were canvassed?---Workplace agreements, collective agreements. In which particular system of industrial relations?---Sorry, I don't understand?

PN328

In the State system or the Federal system?---I honestly can't answer.

PN329

Individual or collective. And you received a letter of demand from the union - - -?---Yes.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN330

- - - on 12 December. What was your initial reaction to that?---Surprise.

PN331

Why was that?---I didn't realise that we had any issues or that there were any problems or that the - that the Furniture Trade Award wouldn't cover them adequately.

PN332

So what did you do in relation to the log of claims that you received?---Contacted the CCI.

PN333

There was a dispute finding hearing on 22 January, I believe, this year and I think the record will show that while that was opposed, the dispute finding was made. What was the next step in relation to the progress of this matter of the internal log of claims?---When we found out that there was a dispute found, we once again contacted and spoke to the CCI who advised us that some negotiations would have to be entered into.

PN334

If I can just take you back a step. At the dispute finding hearing and the union has raised today and tendered in evidence a facsimile that was sent to a Mr Renato Marasco from the Australian Industry Group, I am not sure. Did you authorise Mr Marasco to represent KDB Engineering at that dispute finding hearing?---Personally, no.

PN335

Can you explain, for the benefit of the Commission and union, how Mr Marasco fits into the current proceedings, as far as you understand?---I can attempt to. In December of last year, KDB Engineering was purchased by Hills Industries in South Australia. We had a visit by the Hills Group HR Manager in the second week of January, to our premises in WA. That meeting was just to discuss issues, differences, HR differences etcetera. At that point, June Gammo who is the Group HR Manager, took that issue, well this particular issue, on board and I believe she, through her associations with the AIG in Victoria, assigned Renato to sit on the hearing in Victoria.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN336

In terms of legal entities, what is the relationship between Hills Industries and KDB Engineering?---KDB is a separate entity.

PN337

THE COMMISSIONER: Mr Robertson, just to clarify one small matter here. I have the transcript in front of me and you probably have the transcript over there, as well. But on 22 January, in the hearing, when we asked for appearances Mr R. Marasco submitted:

PN338

I am from the Australian Industry Group in behalf of our member company KDB Engineering.

PN339

So he certainly appeared on behalf of KDB Engineering.

PN340

MR ROBERTSON: As I - well, let me ask Mr Soltys. You are the Operations Manager, do you know if KDB Engineering is a member of the Australian Industry Group?---I can succinctly say that we are not a member of the Australian Industry Group.

PN341

In relation to another document, I think, that was tendered in evidence by the union and I understand it was a letter dated, I think, 29 January, which the union says was sent by certified mail to the manager of KDB Engineering at your Western Australian address. What knowledge do you have of the letter that the union is talking about?---I don't have any knowledge and honestly I would refer to the previous one, in that that was also suggested to be sent by registered mail and I can vouch that, personally, on return from my annual leave after Christmas, I retrieved that from the letterbox. So I don't understand how it could have been signed for. Now I don't know if it is similar situation with this but I certainly don't have a lot of faith in that. Secondly, if the document was referred - was addressed to the manager, we have a large number of managers at KDB Engineering, I don't know if it did indeed come through then maybe somebody else could have got it. I don't know.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN342

Who would be likely to get a document addressed to the manager?---It could be any one of the seven or eight managers that are there. I couldn't answer, honestly.

PN343

THE COMMISSIONER: Mr Robertson or Mr Soltys, particularly, if a letter is addressed to a company and is addressed to "The Manager", I would have thought it would have been natural for the letter to be put before the chief executive. On the face of it, you mentioned that there are seven or eight managers employed in Western Australia; you particularly, are the Operations Manager. This particular letter, I would suggest, quite sensibly, was addressed to the manager, not to the operations manager, not to the marketing manager, not to the accounts manager but to the manager. Are you able to say, on behalf of the chief executive of KDB Engineering in Western Australia, that he or she did not receive that letter?---No, I am not.

PN344

Perhaps that is something, Mr Robertson, we need to get some more information on.

PN345

MR ROBERTSON: Yes, Commissioner. I am not in a position to do that at this present point in time but I can certainly undertake to do that. Mr Soltys, within KDB Engineering in Western Australia - sorry. Within KDB Engineering's operations, who is responsible for industrial relations?---Myself.

PN346

So if there was a letter that went to the chief executive officer and it concerned industrial relations, where would you expect it to go?---To myself.

PN347

Have you seen this letter?---No.

PN348

Thank you.

PN349

THE COMMISSIONER: Mr Robertson, I will ask Ms Parkes, as well, to inquire from Australia Post, whether there is any evidence of the letter being received.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN350

MR ROBERTSON: That was a point I was going to raise for submissions, Commissioner, that we have, I think, at this point in time, an assertion from the bar table that it was sent by certified mail but nothing more than that. So that would be useful, I think.

PN351

THE COMMISSIONER: Good.

PN352

MR ROBERTSON: So going back, Mr Soltys, we have had the dispute finding on 22 January. Do you recall the next step that occurred in the sequence of events in relation to this log of claims and the dispute finding?---We - I think the next step was that we initiated the bargaining notice through the CCI.

PN353

Before that, did you manage to establish what it was that the union was seeking from going through this process?---To rope us into the storage services award.

PN354

How did you find that out?---I think that was through the correspondence that we got off the internet - the transcript.

PN355

All right. Given that you understood the union wanted to rope you into the storage services general award, what did you do in relation to that?---Had a look at the award, the storage services award.

PN356

Right. And what did you find when you had a look at the storage services award?---There were clearly some points that would have been fine and wouldn't have made any difference but there were also some points that would make it difficult for us to run our operations in Victoria as we wanted to, or as we do in WA.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN357

Can you give me some examples of those areas that you had difficulty with?---Some of the different issues quite simply were that the furniture trades award goes into detail about some assembly, grinding, manipulation etcetera as well as clearly covering storage and distribution. The storage services award only allows for picking and or distribution. Some of the other issues that just would have - all they would have done is make that a little bit more difficult; things like there is a clear difference between the accrual of sick leave, the hours of work, just to name a few. There are just some things in there that are at odds with the way we do business at the moment in Victoria and subsequently in WA and would have just meant some fundamental changes.

PN358

So what did you do in relation to the proposition that the union wanted to rope you into the storage services award and you had a look at it, you found some areas of difficulty; what do you do then?---I think - my recollection of that is that pretty much at that point I spoke to the guys in Victoria, asked whether there was a major issue or whether we could obviously negotiate something. Obviously it was in our benefit and their benefit to negotiate an agreement that was more in line with the furniture trades award or the way we do things in WA and Victoria.

PN359

But do you have any idea round about when this was?---In terms of dates? Early February.

PN360

Did you have any reason to compare the terms and conditions of your employees in Victoria with either the storage services award or the furniture trades award?---Yes, that was part of what I did when I went through both the awards.

PN361

Generally, what were your findings?---The furniture trades award was much more generous than the storage services award.

PN362

And how about in terms of, for example, your employees wage rates in Victoria?---From recollection from going through that, I think that at the time, we were paying approximately 10 per cent more than what the storage services award would have called for.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN363

And is that still the case now?---Yes.

PN364

So we have had a dispute finding, you have had a look at the storage services award. What do you do? What do you decide to do?---We spoke to the CCI again and issued the bargaining notice.

PN365

Why did you issue the bargaining notice?---I really didn't feel that the storage services award was something that we wanted to be roped into. It would have made our operations and obviously it would have made things difficult for the guys in Victoria. I would very strongly have preferred for us to be able to negotiate an agreement with them.

PN366

Okay. But what did you want to do with your employees in Victoria?---Reach an agreement that was more closely based on the furniture trades award.

PN367

The bargaining notices that were issued, who authorised those?---Myself.

PN368

You organised the Chamber of Commerce to serve those notices?---Yes.

PN369

How did you do that, verbally?---Verbally and by e-mail.

PN370

Did you before the bargaining notices were served on employees in Victoria, did you have any contact with them?---Yes.

PN371

What was the extent of that contact?---I called them to let them know - there is actually two circumstances. The first one, as I mentioned before, was just to speak to them and find out if there were any major issues or they believed ..... , which was positive. Secondly, before the notices were issued, I spoke to the manager come salesman in the Victorian warehouse and let him know that that is the way that we are proceeding and not to be alarmed at what was coming

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

through, that we were initiating the bargaining period and that we wanted to come to an agreement and that if they wanted to talk to somebody about it they were free to do that, but simply to give the explanation so that they weren't surprised when they got those.

PN372

Okay. You indicated that you had some discussions back in October last year about general terms and conditions of employment?---Yes.

PN373

And you had the log of claims served on you in December?---Yes.

PN374

Had any - what developments, if any, had been made in relation to developing an agreement or alternative conditions of employment for employees?---We had had some discussion with June Gammo, who I mentioned, from Hills and we had essentially thrown some things around the office. At that point, that is all we had done.

PN375

Do you know around about when that was?---January. I am guessing January.

PN376

Since early January, has there been any progress in developing a proposed agreement?---I actually think there has been major development. We are on our fourth draft and I think it is progressing extremely well.

PN377

When do you anticipate being in a position to have a document that you can - that you would like to present?---I don't know that I could speculate a time frame but we are probably, I would guess, two drafts away from completion.

PN378

And in relation to the strategy that you have adopted in this process, what has been the driving force behind the actions that you have taken in relation to your employees in Victoria?---To reach an agreement with them that is in line with what we do in WA that is in line with the furniture trades award. It just makes things easier overall.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN379

Okay. And at the time that the bargaining notices were issued, did you want to make an agreement?---Yes.

PN380

Do you still want to make an agreement?---Absolutely.

PN381

I have no further questions.

PN382

THE COMMISSIONER: Thank you, Mr Robertson. Mr Soltys, just before Ms Parkes perhaps seeks to ask you some questions, what is the nature of the agreement you are proposing with the individuals in Victoria? Is it a - are you proposing several individual agreements or are you proposing a collective agreement between the company and the employees concerned as a group in Victoria and - perhaps answer the first questions?---What we are developing is just an agreement that closely reflects the furniture trades award. With respect to serving it collectively or individually, I would probably go by the CCIs advice.

PN383

And are you developing that with your employees in Victoria or are you developing it in Western Australia within the company?---Probably a little bit of both. We are developing it over here based on their current conditions and we have spoken to them about it probably three times. I have personally been to Victoria, the sales manager and the director has been to Victoria on three occasions since and I won't say we have had discussions on that matter but we have spoken to them about it, what their feelings were.

PN384

So would you describe it as a negotiation or would you describe it as basically input from the individual employees?---More as input. I wouldn't say negotiation, I would say as input.

PN385

And my only other question is, when you came across to Victoria and spoke to the employees, was it possible for you to speak also with the union which is based here in Victoria?---I suppose technically it was but given that we are simply going through the drafts and trying to get some input from the guys in Victoria, I honestly - it didn't cross my mind to do that.

**** ANDREW DUNCAN SOLTYS XN MR ROBERTSON

PN386

Okay. Thank you very much. Ms Parkes.

<CROSS-EXAMINATION BY MS PARKES [4.34pm]

PN387

MS PARKES: Mr Soltys, earlier in this hearing you confirmed - - -

PN388

THE COMMISSIONER: Ms Parkes, I think if you want to sit down it is probably just as easy if you do so and you might be able to get closer to the mike if you do that and bring that mike down, if you feel more comfortable doing it that way.

PN389

MS PARKES: Earlier, Mr Soltys, you confirmed that the address on the correspondence sent by the union, dated 29 January 2003, namely KDB Engineering Pty Ltd, 100 Mulgul Road, Malaga, WA 6090 was in fact the correct address of the company. Am I right in making that statement?---Yes, that is correct.

PN390

THE COMMISSIONER: Ms Parkes, sorry to interrupt you, but that little device right under your paper there is actually the microphone so - - -?---That explains some of the rustling noises that I am getting.

PN391

MS PARKES: My apologies?---That is much better.

PN392

And you further indicated, am I not correct, that Mr Marasco was not authorised by you to appear in the proceedings on 22 January 2003?---That is correct. I believe he was appointed by June Gammo from Hills.

PN393

Now given in those proceedings Mr Marasco was appointed by June - is it Gammo, the surname?---Yes.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN394

THE COMMISSIONER: Sorry, could I just clarify, who authorised Mr Marasco to appear in the earlier proceedings?---June Gammo.

PN395

From?---June is from Hills Industries. June is the group - sorry, was, she has since resigned, was the group HR manager from Hills. As I stated before, following the purchase of KDB by Hills, June came over and essentially took this matter back with her. It was only handed back to us in March. June has, as I said, since resigned and we have now taken that back on board to deal with it.

PN396

MS PARKES: So - - -

PN397

THE COMMISSIONER: Sorry, Ms Parkes, but just to clarify one thing. Mr Soltys, you said earlier that KDB is not a member of the Australian Industry Group?---That is correct.

PN398

It is quite possible, I understand, that Hills Industries may well be a member of the Australian Industry Group?---That would certainly make sense.

PN399

And in your view, was it within the scope of her authority for the person you referred to earlier to authorise the Australian Industry Group to appear on your behalf on 22 January?---I honestly can't answer that. I don't know whether it was within her scope or not. As I do state, she came over in what was essentially a whirlwind. Given that they had just purchased KDB, I can understand the reason for her actions. She probably did want to make sure that everything was progressing or if there was an issue that she personally had a handle on it.

PN400

Good. Thank you. Sorry, Ms Parkes.

PN401

MS PARKES: Can I confirm the comments you made just before that, Mr Soltys, that - I think your words were this matter was handed back to us, as in KDB Engineering, in March 2003?---Yes.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN402

So prior to that, in January and February, it would be fair to say that Hills was looking after this matter?---That is correct.

PN403

And further, with the purchase of KDB by Hills, it would appear that - or it would be correct to say that Hills has an interest in relation to the industrial arrangements in place at KDB?---I am sorry, I don't understand your question.

PN404

The fact that Hills arranged or supposedly in the circumstances, given that Mr Marasco obviously wouldn't appear unless he was authorised by someone, arranged representation for the hearing in January and given your admission that the matter was not handed back to KDB until March of this year, that in the interim Hills would have had carriage?---To a degree. Obviously we were still kept in contact with what was going on. June was talking to us and we, in turn, were talking to the CCI so CCI were acting on our behalf here - - -

PN405

And when did June in fact leave?---In March. I couldn't give you the exact date.

PN406

But that is when the matters were handed back to KDB?---It was just prior to that.

PN407

Just prior to that. And has Hills shown interest in the industrial arrangements, e.g. whether it be a state award or an agreement in place in relation to the operations of KDB, whether in WA or in Victoria?---No.

PN408

So they have shown no interest whatsoever in relation to the industrial arrangements that you may or may not have in place?---No.

PN409

So despite having shown no interest and despite supposedly having control of this matter between January and February, you are indicating that Hills have shown absolutely no interest at all in your industrial arrangements?---I don't think I understand the question.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN410

Well I put it to you that it is somewhat strange that Hills arranges for representation of the matter in January and that in your own terms doesn't hand the matter back to you until March and then assertion that they have had absolutely nothing to do with industrial relations arrangements at KDB despite that behaviour?---I can probably explain that in that obviously being at opposite ends of Australia in different states, I initially said okay, how are we going to deal with this when the hearing in Victoria was going to be heard? Was I going to fly to Victoria? Were we going to get somebody else to represent us? Were the CCI going to go and look after us etcetera and June obviously said at that point that they have an association with AIG and that she could instruct the AIG to represent us there, so that particular portion was out of our hands. Does that answer the question?

PN411

To some extent. Could you please name for me your three employees in Victoria?---Ian Craggs, Wes Porch and Michael Johnson.

PN412

Right. And can you please explain why those three employees got served with bargaining period notices?---So that we could negotiate an agreement with them.

PN413

But why did you also serve a bargaining period notice with the union?---So that the union was aware of what we were doing.

PN414

But surely you could have simply served the bargaining period on the union and not on the individual three employees and the union would have been aware of what you were doing?---In all honestly, I was probably more interested in having the input from the employees. I don't think any of the employees, to the best of my knowledge, is a union member.

PN415

Well then why would you want to notify the union of what you were doing?---Well obviously it was the union that brought this arrangement into play.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN416

Well you have indicated that you are genuinely seeking to reach an agreement and I am seeking an explanation as to your strategy as to why you served four different bargaining periods?---What do you mean four different bargaining periods?

PN417

Well you served three bargaining periods on three employees and a fourth bargaining period on the union. It is highly unusual behaviour in an industrial relations environment so I am seeking an explanation as to why you chose to initiate four bargaining periods for a very small company.

PN418

THE COMMISSIONER: I take it, Ms Parkes, what you are - I haven't looked at the details of the bargaining period notices but are you saying that each of the bargaining periods is a different start and finish date or start or finish date?

PN419

MS PARKES: Three bargaining periods are dated 7 February and then the fourth one is dated 14 February and without looking at your adviser, I am seeking an explanation from the company, it has indicated it thinks it was genuine in seeking to reach agreement, an explanation as to the four bargaining period notices?---Well once again, all I can advise is that we sent the employees a bargaining period notice so that we could endeavour to negotiate an arrangement.

PN420

Why did you think you needed to send a bargaining period notice? Why not simply send the employees a draft agreement?---So that we would have time to negotiate something that was going to be appropriate to all parties.

PN421

But the bargaining period notices doesn't specify a time frame. Further, it indicates that the assistance of the Commission is not required. Now if you required assistance in negotiating something or wanted to negotiate something, as I said, I am still seeking some clarification from you as to why four bargaining period notices were initiated by the employer?---Well all I can say is that I, personally, viewed three of them as being the same - I don't know of any difference - and one was to notify the union.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN422

Well then can you please explain why the one to notify the union is in relation to division 3 and not division 2, if you can please give us an explanation in relation to that, the Act?---No, I can't because I don't understand it.

PN423

So you have issued a bargaining period notice and you don't understand what that means. Is that correct?---I am trusting very closely that our advisers do.

PN424

But you cannot give us an explanation as to why you initiated four bargaining period notices and you cannot give us an explanation as to the difference in relation to those four bargaining period notices?---I believe I have given you an answer as to why I have initiated them but I can't give you an answer as to the difference between them.

PN425

THE COMMISSIONER: Ms Parkes, I think what the witness is saying is that quite probably that he and the company relied on the advice that was received from their industry organisation in this matter?---Yes.

PN426

He is also saying, I think, in effect there were two bargaining period notices given, one to the individuals concerned and one to the union and on the other matters, he has relied on the advice given by his industry organisation?---That is exactly correct.

PN427

MS PARKES: Perhaps you could share with me that advice in relation to the four bargaining period notices?

PN428

MR ROBERTSON: I don't know if - if I could interject there. Obviously the advice from an association to its members would fall into the same category as the advice from, say, a union to its member and indeed would not be dissimilar to the privilege that is extended to lawyers in relation to any advice that is prepared with the possibility of litigation looming in the distance. Accordingly, I don't believe, Commissioner, that it is appropriate for this witness to answer questions which go to the advice that was provided to it by its employer association in relation to a matter such as has turned out to be litigated, for want of a better word. So we would strongly object to that particular question or an answer to that question being given.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN429

MS PARKES: Commissioner - - -

PN430

THE COMMISSIONER: Can I just ask, Ms Parkes, what do you see as the significance of the reference to division 2 and division 3 of the Workplace Relations Act?

[4.45pm]

PN431

MS PARKES: Division 2 is clearly in relation - an agreement between a constitutional corporation and its employee and there is suggestion there that the company is seeking to reach an individual agreement with those three particular employees, whereas division 3 is in relation to the constitution in relation to dispute settlement and prevention. So if it was merely a matter of notifying the union, there is, indeed, a difference in the bargaining period notices in the forms of agreement proposed by the employer.

PN432

On the one hand they are proposing a division 2 agreement in relation to the three employees and then on the other hand they are proposing at the same time a division 3 agreement with the union. So the employer doesn't seem to know what it wants. It is saying it wants to negotiate an agreement. Mr Soltys is saying yet it is initiating different bargaining periods in relation to different agreements in relation to exactly the same work and it is issuing both individually and then collectively to the union. So it is somewhat inconsistent.

PN433

THE COMMISSIONER: Yes. I noticed the inconsistency, Ms Parkes, but really your proposition to this matter has been that the process the employer has engaged in is essentially, again to use your word, a sham and I am not sure the issue of division 2 and division 3 goes to that point to any substantial extent. It may indicate a different tactic on behalf of the employer in relation to the negotiation/discussion they may have with either the union or its employees but it doesn't go to the issue of whether or not the whole process was contrived and is not genuine.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN434

MS PARKES: What I would submit, Commissioner, in that particular scenario with this question, what I am seeking from the employer is the very fact that the employer can't answer the question as to why he served four bargaining period notices which do conflict does support our argument that it is, indeed, a sham. All the employer said is I served the bargaining period notices because I wanted to reach agreement. Now, there is no necessity to serve bargaining period notices in order to reach agreement and the employer has been unable to address me on that or to explain exactly why he has served the bargaining period notices. So we would say the question as to the advice goes directly to the point in issue, that the serving of the bargaining period notices was a sham.

PN435

THE COMMISSIONER: Well, perhaps that is a matter that Mr Robertson has got to address at some point later. What he is seeking he to do at the moment - this is Mr Robertson - is to take his witness through the processes that they have pursued since the issue of the bargaining period notices and establish through that that it is not a sham. And I think, as we have said, the witness is basically, like many lay people, saying, well, I don't know all that much about the detail of the Workplace Relations Act. And I am not sure we can read too much into that from the point of view of a lay person. And instead they have relied on the advice given by their industry organisation.

PN436

MS PARKES: Well, I will proceed with questioning then, Commissioner.

PN437

Mr Soltys, what sort of agreement are you seeking? You have indicated you are up to draft four of an agreement which to date you have indicated employees nor the union have been involved in negotiating the agreement. What sort of agreement are you seeking?---What do you mean by that, sorry?

PN438

Well, are you seeking a division 2 agreement or a division 3 agreement?---Again, I don't understand the difference between division 2 and division 3.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN439

Okay. The reason I ask you that, Mr Soltys, is that the bargaining periods that you have initiated indicate that you are seeking on the one hand to do a division 2 and then on the other hand to do a division 3, and I am asking you are you seeking to do a collective agreement with your employees, are you seeking to do an individual agreement with your employees, because all we have heard is that you are up to your fourth draft and you are not looking at the format of the agreement?---I am not personally looking at the format of the agreement. Once again, I am working in conjunction with the CCI and we have explained what we do want to achieve out of the agreement with the input of the employees in Victoria, and they are taking us through the format. I, once again, couldn't answer and would go on the advice of the CCI as to whether they were individual or collective or whatever that might be.

PN440

Can you confirm that you have had no communications - other than the bargaining period, that you have had no communications with the union in relation to either negotiating an agreement or issues that you have raised in relation to the Furnishing Trades Award?---I can confirm that.

PN441

Now, I would further raise with you, Mr Soltys, that in examination you indicated that you were made aware by reading the transcript of this matter that the union had stated that it sought to make this particular company respondent to the Storage Services Award?---That was my recollection.

PN442

I would appreciate it if you could take me to the paragraph in the transcript that states that because that is not my recollection, Mr Soltys?---Okay. No, I can't. As I say, that is my recollection. I know that at some point we were made aware that you wanted to rope us into that award. I can't recall exactly where I got that information.

PN443

Because I would put it to you, Mr Soltys, that that was not stated in transcript and the only other way you could have found out that information was either via Mr Marasco and his communications and the fact that he had indicated he had spoken to me to - - -?---Yes.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN444

- - - someone from KDB or, alternatively, that someone at your organisation had received the correspondence from the union indicating that we sought to make you respondent to the Storage Services Award?

PN445

MR ROBERTSON: With respect, I object to that question because it is not a properly balanced question. Those are not the two only alternatives. Indeed, I do recall, Ms Parkes, a discussion between yourself and myself wherein I asked you exactly what the union was seeking and you indicated to me that you were seeking to rope KDB Engineering into the Service - Storage - General - Award.

PN446

MS PARKES: Yes, but with respect, Mr Soltys indicated that he had read that from the Internet, and that is clearly not the case.

PN447

MR ROBERTSON: Yes, but the options you are putting to him leave two options and what I am saying is I don't think it is an appropriate question because there are more than two answers to that question - or two possible answers.

PN448

MS PARKES: But Mr Soltys did not indicate that he had heard that from you and he certainly had the opportunity to state that he had heard that view from that, and he indicated that he had heard that from the Internet and he had actually gone to actually look at the Storage Services Award.

PN449

MR ROBERTSON: I think Mr Soltys has indicated that he thought he saw it in transcript?---I was about to say that I am certainly not playing games here. I was going to say that I may have gotten it from June, who may have gotten it from Renato. I may have heard it through Peter. I honestly - I can't recall exactly where I got that information.

PN450

MS PARKES: Can you please confirm the date that you authorised the CCI to initiate the bargaining periods?---Would be early February.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN451

Are you any more specific than that?---I probably couldn't off the top of my head but I would probably have that information or Peter may.

PN452

What makes you certain that it was early in February and not mid-February?---Because it was before the notices were served.

PN453

And you had received copies of those notices?---Sorry?

PN454

And you received copies of those notices at the time they were served?

PN455

THE COMMISSIONER: I am not sure - can you hear me at the other end?

OFF THE RECORD

PN456

MR ROBERTSON: Mr Soltys has just gone to the toilet, Commissioner. He will be back in a minute.

PN457

THE COMMISSIONER: Good. Just while we are waiting for him, Mr Robertson, I have just spoken to Ms Parkes about her timetable. She thinks she will be about another 10 minutes with Mr Soltys. Where are you with your submissions, please?

PN458

MR ROBERTSON: I would anticipate some re-examination and then I assume - and perhaps correct me if I am wrong - I would assume that the Commission would close its proposition or its case, if you like, that the bargaining period is a sham. I would then make my submissions in relation to the evidence and respond to the union's closing submissions and then the union could have a brief right of reply.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN459

THE COMMISSIONER: How long do you anticipate taking yourself from here on in?

PN460

MR ROBERTSON: I am not very good at these estimates, Commissioner, but I would anticipate half an hour to two hours.

PN461

THE COMMISSIONER: Half an hour to two hours, that is a pretty good lack of estimate, I would suggest.

PN462

MR ROBERTSON: Well, I have been caught out too many times before, Commissioner.

PN463

THE COMMISSIONER: I am just looking at the time here. It is 5 pm, as you would know, here at the moment. If we had a possibility of finishing by 6, I would go on. Otherwise, we might have to adjourn the matter and put down another day. Now, that gives another hour from here. Ms Parkes, how much time do you think you would need in total between now and a finish to the matter?

PN464

MS PARKES: Well, having not heard the employer's case makes it somewhat difficult to answer that but if I am at least 10 minutes with Mr Soltys - - -

PN465

THE COMMISSIONER: Well, I will tell you what we will do. Thanks, Mr Soltys. We are just talking about the time we are going to take from here. I am proposing that we will continue on until 6 pm Eastern Standard Time. That gives us another one hour. And then we will have a fresh look at it. If it looks as though we would only need another 10 minutes or so, we will go on but if it looks as though we will need another half hour, three quarters of an hour, maybe an hour, we will adjourn the matter and have to come back another day. So we are going to press on from here. So I will encourage both advocates to be to the point, please.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN466

MR ROBERTSON: Commissioner, perhaps another strategy might be to simply complete the evidence today and closing submissions could be done either in writing or at another time. That might suit your time frames better and in terms of having to cut one party or another off in mid-closing submissions could be avoided.

PN467

THE COMMISSIONER: Yes. Well, I would be comfortable with that but I would like to give people the opportunity to make their submissions orally and maybe what we will do is have an abbreviated final session here this afternoon with the opportunity for the parties to put in further written submissions if they wish. That might be slightly unorthodox but obviously we will exchange copies of any submissions received. So if Ms Parkes gives me some submissions, Mr Robertson, I would give them to you or she would send them directly to you and vice versa.

PN468

But I would suggest we just press on now rather than talking about process. I have offered the parties another hour, which I would like to take up on. I think it is still mid-afternoon in Perth, Mr Robertson, so you have got plenty of time before you usually knock off.

PN469

MR ROBERTSON: In sunny Perth, Commissioner.

PN470

THE COMMISSIONER: Yes, and it is raining in Melbourne, I am pleased to say. Okay, Ms Parkes, you are in the midst of your questions.

PN471

MS PARKES: Yes, Commissioner.

PN472

THE COMMISSIONER: The last question was related, as I noted it, regarding when did KDB authorise the CCI to issue bargaining period notices.

PN473

MS PARKES: And, Mr Soltys, are you able to elaborate in relation to the dates other than indicating early February?---I am not off the top of my head, and I apologise. I don't have that information to hand. I suggest Peter might - Mr Robertson might.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN474

THE COMMISSIONER: I think the answer, Ms Parkes, is early February and recollection doesn't enable anything more precise than that?---I apologise.

PN475

MS PARKES: Okay. It is just early February could constitute - what do you mean by early February? Do you mean the first two weeks in February?---I could probably narrow it down to the first week in February.

PN476

THE COMMISSIONER: I think Mr Soltys is aware that the date on the notice was 7 February and what he is saying is, therefore, it must have been earlier than that?---That is correct.

PN477

MS PARKES: And, Mr Soltys, you were going to confirm whether or not you had received a copy of the bargaining period notice at the time it was served?---Yes, I believe I got one via e-mail before it was served, just to detail what it essentially said, more probably out of courtesy than anything else.

PN478

Sorry, which was the one that you received via e-mail?---Which one?

PN479

Yes?---Sorry, I couldn't tell you. It would have just been one of them to detail exactly what it was. If I - I have never had any association with a bargaining notice before. I would suggest that maybe Mr Robertson sent it through purely out of courtesy so that I knew what we were actually sending. He had explained the detail of it to me, what was actually involved, but certainly not the wording, etcetera.

PN480

Okay. So you received one via e-mail; you didn't receive four via e-mail?---That is correct.

PN481

And you are not able to enlighten whether the one you received was in relation to an individual employee or the union?---I am sorry, I am not.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN482

Mr Soltys, you indicated that there was what you termed four drafts of the agreement. Who has prepared these four drafts?---The first two were internal. We sort of recognised that we weren't really getting anywhere with that and I think - - -

PN483

Could I just stop you there. Who internally prepared those two drafts?---Sorry. Between myself, Greg Pearson, who is the sales and marketing manager, and was assisting and in the very first one June Gammo also had some input. Sorry, and I believe the last two by CCI or by Mr Robertson.

PN484

And can you remember when the first draft was formulated?---Once again, I would struggle to recall but it would be between six to eight weeks ago. Once again, that is information that I could get for you if required. It would have been corresponded between myself and Greg Pearson via e-mail, so that would be information that is available.

PN485

And how many visits have you had to Victoria this year in relation to the three Victorian employees?---I personally have had one. Greg Pearson, who I have just mentioned, has had one, and the director has had one.

PN486

And what was the nature of - - -?---Sorry. I was just about to describe it. They weren't specifically to talk to the employees about the agreement. They were on a number of different issues but while we were there each of us spoke to the employees about the agreements.

PN487

So for each of the three meetings there was no direct negotiations with the employees?---No, just input; that is all.

PN488

And when exactly was your meeting?---On the - probably about 14 March. I am just trying to think of the week that I was over there, and I could actually tell you if you need to know. It might have actually been the 19th, sorry.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN489

So 19 March, and - - -?---It was the latest one.

PN490

Prior to your meeting over there, had you spoken via telephone or any other communication with the employees over there in relation to the agreement?---Only when I first sent across the notice - bargaining notices, as I mentioned before, that I had spoken to the manager over there to let him know that they would be arriving and what they were.

PN491

But other than that and other than your meeting on 19 March, you had had no discussions or negotiations with the employees?---Myself personally?

PN492

Yes, you personally?---No.

PN493

Now, you have indicated that the Furnishing Trades Award is more generous than the Storage Services Award in relation to wages?---Certainly.

PN494

Is it more generous in relation to hours of work and sick leave?---I would say yes in that, for example, we allow our guys in Victoria who we have had so far operating under the Furniture Trades Award, sick leave, etcetera, accrues weekly, whereas in the Storage Services Award it accrues monthly and in the first three months they are not permitted to have anything. I think it is only after that first three months that they are permitted. So there is a clear difference there.

PN495

What about in relation to hours of work, because earlier you indicated one of your concerns was that the Storage Services Award provided more generous conditions in relation to hours of work?---No, not - no, sorry, you have got that around the wrong way. The Furniture Trades Award is more generous. As far as the employees are concerned, the Furniture Trades Award is more generous.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN496

So if the Furnishing Trades Award is more generous overall in relation to employee conditions, why didn't you think to suggest to the union that a more appropriate award than the Storage Services Award might have been an agreement based on Furnishing Trade or something in the alternative? You indicated you wanted to let the union know that you wanted to negotiate an agreement, so why didn't you have any communications - or your advisers, for that matter, have any communications with the union in relation to that position?---I certainly wouldn't have approached that on the basis that since learning of all of this and sort of being enlightened, so to speak, I am aware that the Furniture Trades Award is a state award and really doesn't apply in Victoria.

PN497

But if the terms and conditions are more generous, why didn't you think to suggest to the union, well, let us negotiate something more generous because that is what we already have in practice?---Well, in a sense, that is what we are doing but with the employees probably more so than with the union.

PN498

Well, why I would be asking is why would you bother to serve a bargaining notice on the union when you have had no communication with it?---Once again, the union has brought about this scene or this scenario, so we are just keeping you informed.

PN499

But you are not seeking to genuinely negotiate with the union in that you have had no communications with the union, and you are saying that you want to negotiate something with your employees. You just indicated that is what your choice was. Is that correct?---Well, once again, I wouldn't specify between the two. I would like to reach an agreement, whether that be with the union or the employees. I again say that I am not aware of any of our employees, being the two on the shop floor in Victoria, being union members.

PN500

Well, I would put it to you that Ian Craggs is a union member and that the company is aware of that but - - -?---I wouldn't have been aware of that until when you just read that before, saying that you had two in your hands and one was from Ian. Prior to that I wouldn't have had any knowledge.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN501

But, secondly, I just take you back to the point that if you didn't really care who or what was bound by the agreement or whatever format it was, why would you seek to initiate a bargaining period with the union?---Simply to give us the scope and the time to be able to come to an agreement that was satisfactory for all parties. The guys on the shop floor know what they want; they know what they need, and I am extremely happy to listen to them. I don't know, once again suggesting, as I didn't know before, that you had any union members in Victoria. I would have been more happy to deal with the guys on the shop floor there.

PN502

Okay. So you can see that you have got - you see no real reason to involve the union in negotiations and discussions?---No, I didn't say that.

PN503

But you have got no other explanation as to why you haven't advised the union of the progress of your agreement or the negotiations?---Once again, the guys on the shop floor are more likely to be the ones that know what they need and would rather have the input. Not knowing you had any union members on the shop floor in Victoria, I wouldn't have thought that your union would have been able to negotiate as good or have as much input as the guys that are there, that know what they want, that know what they need. I am happier talking to them.

PN504

So on your basis you have indicated that in your view you didn't think the union had any members until today's date; that is correct?---That is correct.

PN505

And that because of that you thought the employees on the shop floor would have an interest in negotiating an agreement but not the union because it didn't have members?---No. Once again, I didn't say that. The first of that statement was correct, if you would like to repeat that. The first part was correct but not that I didn't have any interest in negotiating with the union. All I am trying to do is reach an agreement. That is all that I want to do - that is satisfactory to all concerned.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN506

THE COMMISSIONER: Mr Soltys, just to interrupt there for moment, a union doesn't normally seek to find a dispute with an employer unless it has members in the employ of that employer?---Okay.

PN507

And I would have thought that Mr Robertson and his colleagues over there would have made that fairly clear.

PN508

MR ROBERTSON: With respect, Commissioner - - -

PN509

THE COMMISSIONER: It would be highly unusual for a union such as the National Union of Workers to seek to represent individuals in KDB in Victoria unless it had members and what Ms Parkes has said is that she has at least one member - the union has at least one member in the enterprise. And I take Ms Parkes also to be saying that the union would have been comfortable in sitting down with KDB and if KDB had have said we have a big enterprise and we have got workers in Western Australia, we have got workers in Victoria and we don't want to have dissimilar conditions across the country - and one can understand that - the NUW may have been quite comfortable - may have been quite comfortable - and I think probably would have been comfortable in sitting down and negotiating an award with KDB to reflect those conditions in the Furnishing Trades Award in Western Australia?---I can understand that. Once again, I would only act on the advice of the CCI, and just with respect to the fact that the union would really only act if they had members, I can honestly say that I thought that we were being used as the implement to rope-in Stomp, who have some 60 plus, I believe, employees, whereas, we have only two employees. I honestly thought that we were the tool to create the interstate issue to be able to then talk to Stomp.

[5.15pm]

PN510

Yes?---I actually state - - -

PN511

I think in this particular case, Mr Soltys, you may have been under a - may have had a misunderstanding about the nature of the union notice that was served on you in the first place?---Sure.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN512

And I think it - - -

PN513

MR ROBERTSON: With respect, Commissioner, I just wanted to make one point that I - sorry, I couldn't let go. It is I don't think entirely accurate to say that if a union serves a log of claims then an employer must assume that it has at least one union member there. In our experience it is not unusual for a union to serve a log of claims on an employer where it has no union members, simply for the purpose of, as Mr Soltys has indicated, creating a requisite interstatedness in order to generate the jurisdiction in the Commission. I just wanted to make that point, Commissioner.

PN514

THE COMMISSIONER: Thanks, Mr Robertson. Well, I am certainly better informed on that matter then than I was before. Thank you. Ms Parkes?

PN515

MS PARKES: Mr Robertson, if I could just take you to various matters that you have indicated in your bargaining period as being in issue, that you are willing to have negotiations with the union and, indeed, your individual employees about, do you propose to have site allowances?

PN516

MR ROBERTSON: I think you are addressing Mr Soltys, aren't you, not myself.

PN517

MS PARKES: Yes, Mr Soltys?---You addressed it - you addressed - - -

PN518

MR ROBERTSON: Sorry. Sorry, you had said Mr - - -

PN519

MS PARKES: I do apologise. I am referring you to those matters that you claim to be at issue between the union and the company and the individuals and the company, namely those matters that were contained in the union's log of claims, and that is what you have carefully stated in your bargaining period as the matters at issue between the parties. You haven't indicated X, Y, Z is at issue. You have said all the matters in the log of claims are the matters at issue?---Yes.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN520

So I am just seeking the employer's position on the following things. Whether a - is a site allowance payable?---When you say a site allowance, can you define that, sorry?

PN521

A site allowance to compensate for disabilities at your site?---I don't believe it is, no.

PN522

No. Are you looking to implement or have discussions or negotiations about district or divisional allowances?---No.

PN523

No. Are you looking to provide an industry allowance to compensate for any obnoxious, hot, cold or dirty work performed?---That would be part of the negotiations with regard to the Furniture Trades Award.

PN524

Are you looking to provide a service and retirement allowance?---By that if you mean superannuation?

PN525

No?---Right.

PN526

An allowance based on service?---If that is part of the Furniture Trades Award then, yes. Essentially I can probably answer all of these questions, that if the Furniture Trades Award covers these, then they would encompass what we are trying to negotiate into Victoria.

PN527

But your bargaining period does not state that you are looking to negotiate matters in the Furnishing Trades Award. You are indicating that you are saying that these matters that are directly at issue between the parties - - -?---Yes.

PN528

- - - are all these in the NUWs log of claims?---Yes.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN529

You haven't stated in your bargaining period that what you are seeking to negotiate, a range of - and then you haven't then outlined terms and conditions in the Furnishing Trades Award, and you just stated then that what you are seeking to negotiate is the terms and conditions of the Furnishing Trades Award, and that is somewhat different - - -?---Or something .....

PN530

- - - from what you have put in your bargaining period notice, so I am taking you through the claims that you are saying are at issue between the parties, and so far you have said that extra payments, site allowance, and district and divisional allowances are not allowances that you are having any discussions about whatsoever. Now, I take you back to the issue of a service allowance. Are you having negotiations about a service allowance, eg, you get an allowance per week at the completion of each year of service?---No.

PN531

That is not being negotiated.

PN532

THE COMMISSIONER: Ms Parkes, I don't want to interrupt you but - - -

PN533

MR ROBERTSON: Yes.

PN534

THE COMMISSIONER: - - - what Mr Soltys has said is that the company wishes to have an agreement which basically reflects the conditions and wage levels set out in the Furnishing Trades Award in Western Australia. If it is in the Furnishing Trades Award, Mr Soltys and KDB would be agreeable to it being reflected in the agreement which they want to strike with the employees in Victoria. I don't know if Mr Soltys is terribly familiar with the detailed description in the Furnishing Trades Award?---That is correct.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN535

Quite possibly is not. So unless there is a specific purpose in what you are doing, going through these individual items - like, what Mr Soltys is going to say, if it is in the Furnishing Trades Award, the company is comfortable with it being in the Victorian agreement?---That is correct. As I stated, the Furnishing Trades Award is much more generous to the employees. There is no more - there is no question about it. I don't think they could even be argued. It is a much broader award. It covers more, from what I can see, than what the Storage Services Award does, so the allowances in general are greater. I can't answer that on an individual basis, but having compared the two, that they are greater.

PN536

MS PARKES: But you would concede though, Mr Soltys, that of the 82 matters listed in the NUWs log of claims, that you are not seeking to have negotiations, and you have not had negotiations, on those 82 matters. You have had discussions, or you are alleging that you have had discussions. You have quite clearly stated you haven't had negotiations in relation to matters in the Furnishing Trades Award, but you would concede though that you are not having negotiations in relation to the 82 matters in the NUWs log of claims?---Not on an individual or specific level, no.

PN537

And then further, that you have never sought to have negotiations about all 82 matters in the NUWs log of claims?---Well, once again, if some of those items are covered in the Furniture Trades Award, then they are going to be covered.

PN538

But not all of the 82 items?---I don't know how many of those particular points are in the Furniture Trades Award. I do remember reading through the log of claims and thinking that, well, that is really exorbitant. But - - -

PN539

So if some matters were in the log of claims and were not in the Furnishing Trades Award you wouldn't be looking to have discussions around them?---I hadn't gotten to that point, no.

PN540

Okay, and that will conclude my questioning.

**** ANDREW DUNCAN SOLTYS XXN MS PARKES

PN541

THE COMMISSIONER: Thanks, Ms Parkes. I am glad we didn't have to go through the full 82 items. Mr Robertson?

<RE-EXAMINATION BY MR ROBERTSON [5.22pm]

PN542

MR ROBERTSON: Thank you, Commissioner. I would like to deal with one point right now. I am passing Mr Soltys a document, and I would ask him to identify that document to the best of his ability, please?---It is an e-mail from yourself to myself.

PN543

Can you tell me the date of the e-mail please?---2.5.03 at 9.30 am.

PN544

The date is the American date, the other way around?---5th of the 2nd, sorry. 5th of the 2nd, of course.

PN545

And what does the document - what does the message therein say?---

PN546

At your convenience please call to discuss the attached.

PN547

And who is - it is addressed to you?---It is.

PN548

And what is attached?---Workplace Relations Act 1996, Australian Industrial Relations Commission Form R40 Rule 68 Notice of Initiation of Bargaining Period.

PN549

So that is on the 5th - - -?---5th of the 2nd.

PN550

- - - of February?---Yes.

**** ANDREW DUNCAN SOLTYS RXN MR ROBERTSON

PN551

And it is an e-mail from me to you attaching a bargaining notice, asking you to call me to discuss it. Is that right?---That is correct.

PN552

Thank you. Now, Ms Parkes asked you what contact during this process, and when I say "this process" I think we could say from the initiation, or the service of the log of claims through to today, Ms Parkes asked you what contact you had made with the union, and you, I think, answered none?---That is correct.

PN553

Can you tell the Commission what contact the union has made with you in that same time period?---None.

PN554

Thank you. In relation to the - I am going to call them the two bargaining notices. I know there are three bargaining notices placed with three employees, but if I can just refer to that as the employee bargaining notice and the union bargaining notice. Before they were served did you authorise the Chamber of Commerce and Industry to serve them?---Yes.

PN555

Now, when we were talking about the draft, Ms Parkes raised the issue about the draft, of the first draft of the document being prepared to reflect an agreement that you would like to reach with your employees, and she asked you when - my recollection is she asked you when that first draft had come about, and you said six to eight weeks ago. Is that right?---That is at a guess, yes.

PN556

Round about, in terms of months, would that have been in January, February, March? Which month? How early?---Probably February.

PN557

Early February or late February? Roughly?---I honestly couldn't - I couldn't recall. I could get that information, but I can't recall off the top of my head.

**** ANDREW DUNCAN SOLTYS RXN MR ROBERTSON

PN558

In relation to the bargaining notices, they refer to the matters that are referred to in the letter of demand dated 10 December, and the log of claims attached thereto. How familiar are you with what is in that log of claims that was attached to the letter of demand that the union served on you?---I have honestly only read through it once, and by the end I was probably skipping through it, because it was, as I said before, very exorbitant.

PN559

Fine.

PN560

THE COMMISSIONER: Others would describe it as ambitious?---Sorry, my diplomacy may need some attention.

PN561

MR ROBERTSON: I have no further questions thank you, Commissioner, in re-examination.

<THE WITNESS WITHDREW [5.27pm]

PN562

THE COMMISSIONER: Thanks, Mr Robertson. Well, Mr Robertson, you called Mr Soltys as a witness. I think we have now completed his evidence. Do you now wish to go on with your submissions to the matter?

PN563

MR ROBERTSON: Well, Commissioner, I did raise this with you earlier on. I thought the proposition would be if the union is making an application that a roping-in award be made, we have indicated our view that section 170N precludes the Commission from going down that path. The union has then indicated that it seeks to challenge and has sought to challenge the genuineness of the bargaining notice. It hasn't called any evidence in relation to that. It has simply made assertions from the Bar table. We have responded to those assertions by calling evidence.

PN564

In our view, Commissioner, the procedure should be the union is making a claim that the bargaining notice is not genuine. Because, prima facie, the bargaining notice is genuine, the union is trying to, or is asserting that the presumption of genuineness is in fact incorrect, so it has made its case in relation to its presumption that the bargaining period is a sham. We have presented evidence to rebut that presumption. So our view would be, Commissioner, that it is the union's call now to close its application, if you like, or its proposition that the bargaining period is not genuine, and it is therefore up to us to respond to whatever the union has to say and put our submissions, and then the union has an opportunity of responding to that.

PN565

THE COMMISSIONER: Well, Mr Robertson, as I understand it Mr Parkes has actually made her arguments already in relation to the union's claim for the Commission to rope KDB into the Storage Services Award, and her case, as we have already noted on several occasions, goes to the service of a claim on the company, and the - and her response to the actions that have been taken since February by the company to issue notices of bargaining periods, which she has alleged, and she has called into her evidence a number of decisions of the Commission. She has alleged that the company's actions in serving notices of bargaining periods as a sham, and she has relied on that submission to substantiate her proposition that the company ought to be roped-in to the Storage Services Award.

PN566

In the evidence given by Mr Soltys, he has explained what the company has been doing, which in relation to the union itself, on Mr Soltys' evidence, there has been no communications whatsoever between the company and the union. There has been limited communication, not of a bargaining type, but of an information type one, according to Mr Soltys' evidence, between the company and the three individuals who are in its employ in Victoria, and I have understood that evidence of Mr Soltys quite clearly in relation to the efforts that have been put in to developing the four drafts which have been prepared thus far of the proposals which the company would like to put in place.

PN567

Now, if you are saying that you are prepared to leave your submissions on the basis that you have put them thus far, and that is, you have attempted to rebut the union's claim that there is a lack of genuineness in the company's position, well, that is your decision. That is your judgment to make. If you have any other submissions to make I am happy to hear them now.

PN568

MR ROBERTSON: You would like me to go ahead now? Because I am quite happy to.

PN569

THE COMMISSIONER: Yes.

PN570

MR ROBERTSON: It is just that I - - -

PN571

THE COMMISSIONER: Well, that is exactly what I would like you to do.

PN572

MR ROBERTSON: All right.

PN573

THE COMMISSIONER: Unless Ms Parkes wants to make any more submissions, which I don't think she does.

PN574

MS PARKES: Well, Commissioner, we would appreciate hearing the Chamber of Commerce and Industry's submissions in reply.

PN575

THE COMMISSIONER: Yes.

PN576

MS PARKES: Because for us, in order to respond to their submissions, we need to hear what they are, and all we have heard to date is Mr Soltys.

PN577

THE COMMISSIONER: Sure.

PN578

MS PARKES: We haven't had any - and some preliminary remarks made by Mr Robertson.

PN579

THE COMMISSIONER: Mr Parkes, that is fine.

PN580

MS PARKES: Yes.

PN581

THE COMMISSIONER: We will call on Mr Robertson to complete his submissions, with the opportunity for you to give a statement in reply. Mr Robertson?

PN582

MR ROBERTSON: Thank you, Commissioner. Commissioner, in our submission it is - well, the position that we take commences from the view that it is for the union to establish that the service of the bargaining notices was at the time that it was served either not genuine or a sham. Because we, as I said, we say that the bargaining notices speak for themselves, and if I could refer you to the Full Bench decision in the - is it Triple A Cleaning Service?

PN583

THE COMMISSIONER: I know the one you mean.

PN584

MR ROBERTSON: Yes, and if I could refer you to paragraph 18 of that, where - in the second sentence there, where the Full Bench says:

PN585

We commence from the position that it is for the ALHMWU to establish that the service of the bargaining notice was at the time it was served either not genuine or a sham in the sense that those expressions are used in the authorities referred to.

PN586

And then the Full Bench goes on to say:

PN587

In our view the evidence, including the additional evidence, simply does not establish this. Very little of the evidence relates to the events which occurred prior to the service of the bargaining notice, and that which does falls well short of establishing on the balance of probabilities that Laing Cs finding on this issue was wrong, or that it ought to be changed on the basis of the new evidence.

PN588

And it goes on to say:

PN589

We note the strong submission made by Mr Nolan to the effect that commercial realities, both at the time the bargaining notice was served and subsequently, meant that ...(reads)... negotiate an agreement under division 2 or division 3 of the Act, but that is a different question to the one which arises on this appeal.

PN590

Now, bearing that in mind, Commissioner, it is our submission that the behaviour of either the union or the employer, subsequent to the service of the - of the initiation of the bargaining period is irrelevant in the determination of the matters currently before the Commission, and that is, does the bargaining notice - sorry, is the bargaining notice genuine? The question that must be determined is, at the time that the bargaining notice was served, did the employer want to negotiate an agreement? Now, we say that is the question that is before the Commission.

PN591

Now, the union has effectively sought to challenge that on three bases, as I can determine. The first one is that the bargaining notice was deficient because of the way that it was framed in terms of the matters that it set out that it proposed should be dealt with by the agreement. The second proposition, as I understand it the union has put forward, is that the bargaining notices are deficient - I should point out we are talking about two different bargaining notices here. Two different types. One with the union. One with the employees.

PN592

The second proposition that the union, as I understand it, put was that the bargaining notices were not properly authorised under the principles of agency, as was referred to in the Full Bench's decision in the AHS matter. Yes, AHS Hospitality Group Limited matter. The third proposition, as I understand it, was that the union says that the employer was not genuinely seeking to reach an agreement with its employees - sorry. Was not genuinely seeking to reach an agreement in relation to its employees in Victoria, at the time that the bargaining notice was initiated.

PN593

Now, if I can go to the second of those propositions first of all, and that is to the proposition of agency, and that the Chamber of Commerce and Industry was not authorised to serve the bargaining notices, along the lines that Commissioner Laing and the Full Bench raised in those two decisions. In our submission, the evidence of Mr Soltys clearly indicates that KDB Engineering, through Mr Soltys, authorised the Chamber of Commerce and Industry to serve the bargaining notices prior to them actually being served. So, in relation to the issue of agency, we say the evidence clearly refutes that.

PN594

Secondly, if I can go to the issue of the union's proposition that at the time the bargaining notice was initiated, the employer did not, or was not wanting to reach an agreement over the terms and conditions of its employees in Victoria. Again, in our submission, the evidence of Mr Soltys is that at the time that the bargaining notices were served, firstly, in relation to its employees, KDB Engineering was genuine about wanting to negotiate an agreement. Indeed, Mr Soltys contacted the manager in the warehouse before sending over, or having the notices of bargaining faxed to employees in Victoria, to explain that they were coming and to explain what they were for, and in his explanation his evidence indicated that the reason they were sending this document over was because they wished to reach an agreement over the terms and conditions of their employment.

PN595

In relation to the bargaining notice served on the union, again Mr Soltys evidence was that he wanted to reach an agreement. He didn't mind who the agreement was with, whether it was with the union, or whether it was with employees. He wanted to reach an agreement over the terms and conditions of employment of his employees in Victoria. Now, Mr Soltys also indicated in his evidence that he had had a look at the Storage Services Award, found that while some of it was tasteful, other parts of it were distasteful, and he formed a view that he didn't wish to have the Storage Services Award imposed upon KDB. It would cause difficulties in their operations.

PN596

So the alternative to him was to reach an agreement. Now, in our submission, the evidence is quite clear that at the time the bargaining notices were initiated, or authorised to be initiated by Mr Soltys, firstly, on the employees, KDB wanted to reach an agreement with those employees. At the time the bargaining notice was served on the union, which was some time later, at that point in time KDB Engineering wanted to reach an agreement. It still wanted to reach an agreement in relation to the terms and conditions of employment of its employees in its Victorian operations. The union attempted to make much of the fact that the employees' bargaining notice sought to make an agreement under Division 2 of Part VIB of the Act, while the bargaining period initiated against the union sought to make an agreement under Division 3 of Part B of the Act.

PN597

In our submission, that is irrelevant. That consideration is irrelevant to the test that the Commission needs to pose for itself. Whether an agreement is sought to be made under Division 2 or Division 3 is not the issue. The issue is did the employer want to negotiate an agreement? And we say the evidence on those points is, quite clearly, yes. At the time that the bargaining notices were initiated the answer is yes. We say that, however, the evidence, not that it needed to address it, but the evidence, even on the employer's behaviour subsequent to the initiation of the bargaining period is consistent with it wanting to negotiate an agreement.

PN598

The fact that there has been little, no, some, or huge amounts of communication between the negotiating parties to the bargaining notice in the short time that has transpired between the issuing - what is it? A month? Less than a month, between the bargaining notice - or maybe it is two.

PN599

THE COMMISSIONER: Two months.

PN600

MR ROBERTSON: Yes. Between the bargaining notice and now, does not alter the evidence that KDB has been actively pursuing developing an instrument concerning terms and conditions of employment of its employees in Victoria, which it intends to put to both the union and its employees for them to discuss, to consider, and to have negotiations over it. In our submission there is nothing, as we initially say, there is no need for the Commission to look at that behaviour, but in any event, that behaviour shows that KDB is actively pursuing its desire to reach an agreement.

PN601

Now, the third limb, as I understand it, of the union's argument is that the bargaining notice itself can't be genuine because - sorry. I take that back. The third limb of the union's argument is that section 170N does not come into play in this matter because the matters that the bargaining notice attempt to put in issue are not matters that are between the - or are not issues or matters that are at issue between the negotiating parties for the purposes of section 170N(1).

PN602

Now if we go to the bargaining notices, in relation to those put in place against the employees, the particulars as specified in section 170MJ that are required are that the matters that KDB Engineering Pty Ltd proposes to be dealt with by the agreement include all matters referred to in the letter of demand dated 10 December 2002 and the log of claims attached thereto. Similarly, the bargaining notice in relation to the union says that the matters KDB Engineering Pty Ltd proposes should be dealt with by the agreement include all the matters referred to in the letter of demand dated 10 December 2002 and log of claims attached thereto. Excuse me, there is somebody at the door.

PN603

THE COMMISSIONER: Probably the cleaner.

PN604

MR ROBERTSON: Not yet, I hope. Clearly, then, the issues that KDB has said that it wishes to make an agreement about include the matters that are referred to in the log of claims. Now in our submission, primarily, the way the bargaining notice is framed does not imply or infer that KDB Engineering wants to make an agreement on each and every one of those things that are contained within the log of claims. Clearly in the same way that a log of claims, when it is served, is ambit in nature, so to the matters that have been put in issue by KDB Engineering are ambit in nature. Clearly an agreement can be reached in relation to, for example I think, Mr Soltys said that he didn't believe that site allowance would be a matter that would be covered by the agreement. I am assuming, perhaps incorrectly, that site allowance is one of the issues raised in the log of claims. Perhaps if I can find one that is in the log of claims.

PN605

An agreement can be reached within a subset of the issues that have been raised in the log of claims and that we have said are the matters that we propose should be dealt with. So a matter can be dealt with, notwithstanding our proposition that an agreement clearly is not intended to embrace each and every one of the items that are raised in the log of claims as indeed the union wouldn't anticipate that any award made in part settlement of a dispute that is being made as a result of the service of the log of claims would include all the matters that are in issue - sorry, all matters that are raised in the log of claims.

PN606

I mean if I can give an example of an issue that is raised in the log of claims, and I think at paragraph 53, it is titled property damage:

PN607

The employer shall replace at no cost to the employee any of the employee's property lost, stolen or damaged at the workplace.

PN608

Now firstly I would suggest that issue, should it have attempted to have been made the subject of an award would have been a non-allowable matter and secondly, while the net has been cast very widely in relation to the matters that KDB Engineering has genuinely put at issue and it is a matter of genuinely put at issue between the parties, it is unlikely that KDB would seek to offer an agreement that would include such a provision in it. By the same token, even if an agreement were offered to the union or when an agreement is offered to the union and it doesn't include a clause that covers property damage, it is equally able for the union to raise property damage as a clause that it wishes to have included in the agreement and to negotiate over because of the breadth of the matters that have been put in issue between KDB Engineering and the negotiating parties.

PN609

THE COMMISSIONER: Mr Robertson, I think we are all aware of the basis of logs of claims which are made by unions on employers. As you would be aware and possibly Mr Soltys is aware, they are a means of generating a dispute between an employer and a union on behalf of employees to satisfy the terms of the Workplace Relations Act. We are all aware of that. So I understand what you are saying about the union negotiating or has a potential to negotiate around issues but I also feel quite certain that the union, if it were given an opportunity, would not have sought to negotiate around a number of those issues because they wouldn't have been issues between the parties, they wouldn't have been relevant in many cases and I expect that Mr Soltys would have been advised by yourselves on those matters. Many of the things contained in what he described as an exorbitant log of claims would never have been issues between the union and management. It is simply a mechanism to generate a dispute to satisfy the terms of the Workplace Relations Act, as you know, but please go on.

PN610

MR ROBERTSON: Commissioner, I take your point. From KDB Engineering's point of view, and the evidence of Mr Soltys is, they didn't want the storage services award. Now - - -

PN611

THE COMMISSIONER: But they haven't communicated that to the union to this point.

PN612

MR ROBERTSON: We say there is no need for them to do that, Commissioner. There is no requirement to do it. On the issues that have been - - -

PN613

THE COMMISSIONER: They have issued a notice of bargaining period. Doesn't that imply that they wish to bargain?

PN614

MR ROBERTSON: No, it doesn't, Commissioner.

PN615

THE COMMISSIONER: So it merely is a piece of paper which leads to nothing.

PN616

MR ROBERTSON: The service of a bargaining period, the effective service of a bargaining period, is conditioned upon what the employer - well the test that is in 170MJ - does the employer want to negotiate an agreement. Now notwithstanding we say the employer is in the process of developing a document which it will put to the negotiating parties, as the evidence has shown, we still say that is not the test - or is not information that is relevant to the Commission's consideration and determination of this matter. What the evidence says is that the employer didn't want the storage services agreement; it wanted to negotiate an agreement. It genuinely wanted to negotiate an agreement. It still wants to negotiate an agreement. The employer is also aware - that is the primary objective of the employer, it wants to negotiate an agreement and it doesn't want the award.

PN617

Now the fact that a collateral, if you like, advantage can be gained by the employer in serving a bargaining notice is neither here nor there. It is not determinative of whether the employer wants to reach an agreement at the time that it served the notice initiating the bargaining period and I think if we go to the Full Bench decision in the AHS matter, where the Full Bench quotes Commissioner Laing's proposition, which appears at paragraph 16, quite clearly there, and that particular passage was not rejected by the Full Bench; in fact that particular passage was challenged by Mr Nolan but the Full Bench actually said in relation to those paragraphs that had been uplifted from Commissioner Laing's original decision, that nothing persuaded them that Commissioner Laing erred in his findings on this issue and I will refer you to paragraph 16 and the passages in italics, which I have referred to to some point before.

PN618

At Commissioner Laing's decision, paragraph 91, he says that:

PN619

It may well be that the claims are for rates and conditions which are not acceptable to the ALHMWU but that does not alter the fact that they wish to pursue an agreement on their own terms and that they see that they enjoy a strong bargaining position as a consequence of section 170N.

PN620

Now the proposition that Commissioner Laing is elaborating on there is that while there may be an advantage to an employer to utilise section 170N, there is nothing wrong with that; it is what the Act envisages. I mean Commissioner Laing goes on and says:

PN621

That, in turn, has encouraged them to try and reach an agreement with the union on substantially better terms for the employer than if the process had been underpinned by a safety net award ...(reads)... wished to negotiate with the ALHMU.

PN622

Going down to the last sentence in paragraph 91:

PN623

Initiating parties entitled under the legislation to try to reach agreement and providing any bargained outcome satisfies the no disadvantage test, it is consistent with the requirements of the Act.

PN624

Here we go - - -

PN625

THE COMMISSIONER: Mr Robertson, if I could just interrupt for a moment please. This matter is before the Commission today because the union has made an application to rope KDB Engineering into the storage services award. It is arguing that the notice of the bargaining period should not prevent the Commission arbitrating because the bargaining period notice is not genuine. It points out that in addition to the earlier findings of a dispute and to the evidence which has been given or the submissions which have been made and the exhibits which have been handed up of correspondence to the company and to the organisation which was representing the company at the first hearing, that in response to that, and these were dated I think a date in January, 29 January, it has not heard from the company in any way, shape or form.

PN626

In that connection, and I don't want to extend this hearing any further than is necessary, but is it open to the Commission, do you think, to terminate the bargaining period under 170MW if I was to find that KDB Engineering, on the submissions that have been made and the evidence that has been put forward, is not genuinely trying to reach an agreement with the other negotiating parties and in this case, the other negotiating party, which this Commission directed the parties, being the NUW and KDB, to consult about the follow up to the finding of dispute back in December, as I recall, and yet there has been no consultation whatsoever between the parties.

PN627

There has been no response from KDB to the correspondence which, on the evidence so far, has been forwarded to the company. The company said it has been to Melbourne on several occasions, at least three by senior managers of the company and has spoken to the individual workers, not in a negotiating sense but in a consultative sense and has failed to even make a telephone call to the union. Why in that context shouldn't the bargaining period be terminated under 170MW and then leave the Commission able to do other things?

PN628

MR ROBERTSON: Well the first point, Commissioner, is that the evidence, we say, at least from Mr Soltys' point of view, who is the person responsible for HR at KDB Engineering, despite faxes being sent to AIG and to the manager at KDB, his evidence is he hasn't seen that correspondence, so from our perspective, that alone wouldn't indicate that the company has failed to respond to the union. At that point the company didn't know that the union had made that demand and in any event, and the general course of events, I mean it is quite usual for the union to send a letter like that, for the employer to do nothing and for a roping in award to be made. Under these circumstances, we weren't aware of that so we haven't responded to that because we didn't know it was there.

PN629

Secondly, I guess there was a - notwithstanding the Commission's directions for the parties to negotiate or rather to consult, subsequent to the dispute finding hearing, it is general practice, since it is the union's application, for the union to approach the employer or employers as it did and for the employers to respond and as we indicated, we hadn't - we weren't aware that that had come from the union. In relation to - - -

PN630

THE COMMISSIONER: Could I just ask there, Mr Robertson, is there any difficulty from the company perspective in sitting down with the union at a mutually convenient time to talk about these matters and follow up the earlier proceedings? Is there a difficulty on the part of the company? It may say look, we have not yet formalised our final position on where we want to go by way of the final outcome of any agreement but it seems to me from the proceedings this afternoon, there is a degree of miscommunication. In one sense, the company is saying it didn't receive the correspondence from the union; in another sense the company has been over here in Melbourne and has been talking with the individual employees.

PN631

I think to some extent, the company has had a look at the log of claims which has been served by the union and said, you know, if I can just paraphrase it, this is outrageous, we are not going to sit down and talk about this list of exorbitant claims and perhaps not fully appreciating that the log of claims is really a document to satisfy the requirements of the Act; perhaps not totally appropriate in this particular case but in other cases where unions are serving claims on literally thousands of employers in an industry, it has more relevance but if the company was to say to the union look, our real wish is to have a set of conditions for our employees which are similar throughout the country, it is quite possible the union would be accommodating to that. So all I am saying is, is it possible for the company and the union to sit down together on these matters?

PN632

MR ROBERTSON: We can certainly do that, Commissioner, and as we have indicated, we are still in the process of developing something to put to the union and to the employees to seek to reach an agreement. Now if that agreement was to - if it was to be suggested that that agreement become an award rather than an agreement, we would certainly consider that but certainly, Commissioner, there is plenty of opportunity for us to sit down and talk with the union.

PN633

Our position has been and still is, we need to perfect the draft document first before we can put something on the table. I mean it is not sufficient to - at least with the level of expertise that is available in the union and employer organisations say yes, we will have an agreement on this; you need to get down to the nuts and bolts because you can get down there very quickly and in terms of fast tracking the process, it is better to have a document that is fairly polished and refined to be on the table to start with rather than start with some far wider, perhaps maybe's and could be's.

PN634

THE COMMISSIONER: Well yes and no, Mr Robertson. In my experience, such as it is, it is better in a process of negotiation, whilst you need certainly to have your own position clearly worked through, to at a reasonably early stage get an understanding of where the other side is coming from as well and that does assist in the whole process of formulating what might be a mutually agreed outcome.

PN635

Now having raised that at this time, and it is now five past six over here, can I ask for one thing at this point because what I am going to make is a proposition and that is that the parties, that is KDB Engineering and the union in this case, the National Union of Workers, should at some point in the foreseeable future, sit down together and exchange views on what their respective positions are. And then once that process is undertaken, and it is not up to me to suggest what the outcome of that may be, the company and the union have got the ability to take that in any way that they see is their preferred outcome but subsequent to that, these proceedings should then continue.

PN636

I am proposing that we adjourn these matters at this point to enable those discussions to take place, preferably to involve Mr Soltys and any other person he might feel would be advisable and then once those discussions take place, to finalise the submissions being made by the parties in this matter and for the Commission to make a decision in the matter. Now is that useful?

PN637

MR ROBERTSON: We are, as ever, prepared to talk to the union, Commissioner and we always have been and still are prepared, even before we get our document perfected for presentation, to discuss the situation with the union. Now I don't know how that will sit with the union but certainly, Commissioner, we would be prepared to adopt that course of action.

PN638

THE COMMISSIONER: I just might point out, too, that I have a hearing in Perth commencing on the 28th of this month, which is going to take the whole week. It is possible that this matter could be resumed but in reverse; I could be in Perth and Ms Parkes can be here in Melbourne, on the television end, if that is considered to be useful.

PN639

MS PARKES: Commissioner, if I could just make a point. Whilst the union is always prepared to have discussions with the company, we would note that that might then prejudice our argument in relation to the genuineness and the conduct of the parties if we go from a situation of having absolutely no communications to a system of then having discussions to come back and attempt to say look, the bargaining period is not genuine.

PN640

I haven't obviously made my submissions in reply yet to Mr Robertson; I am not sure if he has concluded his remarks but we would just note that that particular course of action, we would have concerns in relation to that prejudicing our argument. In the event that discussions were unsuccessful, I believe that we might then have some further difficulties in trying to establish our case on the basis of such discussions.

PN641

THE COMMISSIONER: Well I take your point, Ms Parkes but if you are saying the union would feel itself prejudiced by that matter and would prefer to rely on your submissions today regarding the lack of genuineness as opposed to Mr Robertson's submissions that the company has been genuine, I am in your hands. I have just offered both parties an opportunity to sit down and discuss this matter, as should have been done quite a while before today.

PN642

MS PARKES: Commissioner, what we would submit is we would want to clarify that that is the conclusion of Mr Robertson's submissions.

PN643

THE COMMISSIONER: Well I don't think it is. That is quite clear. He hasn't concluded. How much have you got to go, Mr Robertson - in time?

PN644

MR ROBERTSON: Well Commissioner, I am on page two of my outline of submissions and I have got eight pages, so does that give you an indication?

PN645

THE COMMISSIONER: Well that means we are going to adjourn anyhow, if that is the case, but obviously you have got at least another 45 minutes to an hour to go.

PN646

MR ROBERTSON: I might be able to refine that but I would anticipate that, yes, Commissioner.

PN647

THE COMMISSIONER: Well that being the case, I think we can't go on beyond 10 past 6 in the evening over here. Personally I can and I expect Ms Parkes - Ms Parkes, can you go on?

PN648

MS PARKES: Commissioner, I am available until 6.30.

PN649

THE COMMISSIONER: Til 6.30. Well we won't get it finished by 6.30 so I think we should discuss for a moment where we go from here. The matter is going to be adjourned at this point and what we can do - what I will ask the parties to do is to consider the proposal I have made and to advise me of their preferred course in terms of where we go from here and I can say to you, to both of you, that in respect of the arguments that have been put, regardless of the advice that comes back to me, it will not prejudice the decision of the Commission in this matter on the merits of the arguments you have put thus far.

PN650

MR ROBERTSON: Commissioner, could I - I just wanted to indicate that I know I have got a busy diary coming up. I don't know what I am doing in that week in April so perhaps if we were to - - -

PN651

THE COMMISSIONER: It is of no consequence, the week in April. We can reschedule this. I can say to you I will look at my diary and we will reschedule it for a date earlier than that week in April, although let us remember that we have got Easter coming up and we have also got Anzac Day coming up and so from here on in - and we have also go to - this is what has caused the delay thus far, we have got to get a free opportunity on the video link to Perth and I can tell you the video link to Perth seems to be fairly busy but - - -

PN652

MR ROBERTSON: It is not our fault, Commissioner.

PN653

THE COMMISSIONER: Yes, I understand that. I am having a look at my diary and I will try and schedule it as early as possible after today's date to get the matter finalised. And on the face of it we will need another - about another two hours. Mr Robinson, is that okay by you?

[6.10pm]

PN654

MR ROBERTSON: I don't know how long Ms Parkes is going to be but I think two hours should see us done, Commissioner.

PN655

THE COMMISSIONER: Yes, two to three hours in total.

PN656

MR ROBERTSON: Yes.

PN657

THE COMMISSIONER: Good. Well, I am sorry that we haven't been able to finish this afternoon. In part it is my interventions that have caused that. But it is not a matter without its complexities and we have heard an amount of detail on both sides of the argument thus far.

PN658

Now, unless anyone has any other comment to make before we adjourn, I am proposing to adjourn at this point and advising the parties that I will seek to re-list this matter as soon as practicable, given their availability and the availability of the video link to Perth. Ms Parkes, anything more to say?

PN659

MS PARKES: No, Commissioner.

PN660

THE COMMISSIONER: Mr Robertson?

PN661

MR ROBERTSON: No, thank you, Commissioner.

PN662

THE COMMISSIONER: Good. Thank you very much. This matter is adjourned.

ADJOURNED INDEFINITELY [6.14pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 BARGAINING PERIOD NOTICE BP03/219 SIGNED BY MR ROBERTSON, DATED 14/02/2003, ADDRESSED TO NATIONAL UNION OF WORKERS PN154
EXHIBIT #P2 DOCUMENT SIGNED BY MR ROBERTSON DATED 07/02/2003 PURPORTING TO BE NOTICE OF INITIATION OF BARGAINING PERIOD FOR AN AGREEMENT WITH EMPLOYEE PN160
EXHIBIT #P3 DOCUMENTS INCLUDING CORRESPONDENCE DATED 29/01/2003 TO KDB ENGINEERING FROM NUW GENERAL SECRETARY AND PROPOSED ROPING IN AWARD PN165
EXHIBIT #P4 3 DECISIONS, PRINTS S7058, S0470, AND S5283 PN209
ANDREW DUNCAN SOLTYS, SWORN PN303
EXAMINATION-IN-CHIEF BY MR ROBERTSON PN303
CROSS-EXAMINATION BY MS PARKES PN387
RE-EXAMINATION BY MR ROBERTSON PN542
WITNESS WITHDREW PN562