AG2003/9572, Transcript of Proceedings [2003] AIRCTrans 5600 (15 December 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

AG2003/9572

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by The Australian Workers Union and Others
for certification of the Sunshine Sugar Certified
Agreement 2003

BRISBANE

9.35 AM, TUESDAY, 2 DECEMBER 2003

PN1

MR R. TRIPODI: For the Australian Workers Union.

PN2

MR I. MORRISON: For the Australian Manufacturing Workers Union.

PN3

MR S. MARSHALL: For the Construction Forestry Mining and Energy Union, New South Wales Branch.

PN4

MR R. ALEXANDER: CEPU, Communication Electrical and Plumbing Union.

PN5

MR D. NOEL: Representing the SBU as SBU secretary.

PN6

MR W. SYME: Representing the New South Wales Sugar Milling Co-operative Limited.

PN7

THE COMMISSIONER: Thank you. There's no one else on the phone? That's all the parties? All right, thank you. Now, the application, Mr Tripodi, was lodged by the AWU. Did you wish to start?

PN8

MR MARSHALL: Commissioner, before we start, Sean Marshall for the CFMEU. I did ask that John Mulcahy and Wayne Flaherty could be on the phone hook-up. Were they contacted, do you know?

PN9

THE COMMISSIONER: Well, I don't - where did you ask for that, Mr Marshall?

PN10

MR MARSHALL: I emailed Claire about it.

PN11

THE COMMISSIONER: Well, we had an email about yesterday's matter for Mr Flaherty and the other gentleman but I don't seem to have anything for today's matter.

PN12

MR MARSHALL: But the email was about both matters.

PN13

THE COMMISSIONER: Well, it apparently didn't indicate that, Mr Marshall. So are you wanting to have them added to the phone conference?

PN14

MR MARSHALL: Pardon?

PN15

THE COMMISSIONER: Are you wanting to have them added to the phone conference?

PN16

MR MARSHALL: It's a bit late now, isn't it? I don't have Wayne Flaherty's number on me so we may just go ahead.

PN17

THE COMMISSIONER: Is it the same number from yesterday, Mr Marshall?

PN18

MR MARSHALL: Pardon?

PN19

THE COMMISSIONER: Is it the same number as he was joined into yesterday's dispute conference?

PN20

MR MARSHALL: For John Mulcahy, yes.

PN21

THE COMMISSIONER: And what about Mr Flaherty, the same number for him?

PN22

MR MARSHALL: I don't have his number with me unfortunately so - - -

PN23

THE COMMISSIONER: No, no, Mr Marshall, is the number, from your understanding, the same number that was forwarded for Mr Flaherty for yesterday's dispute conference?

PN24

MR MARSHALL: Yes, it is.

PN25

THE COMMISSIONER: All right. Well, I can have my associate, if you wish to have them joined in - I can have my associate get those numbers from yesterday's conference and call Telstra and have them added in.

PN26

MR MARSHALL: Yes, that would be beaut.

PN27

THE COMMISSIONER: All right. Well, gentlemen, we'll just adjourn for a couple of minutes while that's done. Everyone stay on the line please, don't hang up.

SHORT ADJOURNMENT [9.37am]

RESUMED [9.44am]

PN28

THE COMMISSIONER: We're on the record, gentlemen, and I would ask you to assist the court reporters in preparing the transcript, when you make submissions, to identify yourselves. Now, Mr Tripodi, I think you were going to start.

PN29

MR TRIPODI: Yes, Commissioner, it's Mr Tripodi.

PN30

THE COMMISSIONER: Thank you.

PN31

MR TRIPODI: In our view the agreement is ready for certification. There is a question as to whether or not other unions wishing to become a party, either of the relevant requisites for doing so, and at this stage, as far as I know, the other unions are prepared to sign the agreement. I just wonder whether they have filed the required statutory declarations and also signed the agreement.

PN32

THE COMMISSIONER: All right. As I understand it the CFMEU hasn't signed the agreement or filed a stat dec. The AMWU have now provided originals of both of those - a stat dec - sorry, not originals. They've provided confirmation they intend to do that but we need to have originals from them.

PN33

MR MARSHALL: Sean Marshall, CFMEU. My understanding is that Andrew Ferguson signed a statutory declaration - - -

PN34

THE COMMISSIONER: That's Mr Marshall, is it?

PN35

MR MARSHALL: Yes.

PN36

THE COMMISSIONER: Right.

PN37

MR MARSHALL: My understanding is that Andrew Ferguson signed statutory declarations and the signature page, the AWU didn't send the agreement around for the parties to sign so we just signed a photocopied signature page and signed that declaration which was faxed to your number this morning.

PN38

THE COMMISSIONER: All right. That's correct, Mr Marshall. We have a faxed copy and I'll have my associate work out with those parties who needs to provide originals with you afterwards, but you've confirmed by fax your signature and - - -

PN39

MR MORRISON: Commissioner, it's Ian Morrison from the AMWU. Just confirming that the Commission has received a signed AMWU statutory declaration and a signed signature page and the original from Paul Bastion. Is that correct?

PN40

THE COMMISSIONER: As I understand it, we have signed copies. My associate is trying to assess whether they're originals but certainly we have a confirmation of a signature page and she would follow up with you whether the original is still outstanding.

PN41

MR MORRISON: I think you have the original, Commissioner. I posted it to you myself.

PN42

THE COMMISSIONER: All right. Well, apparently the CFMEU is the outstanding one in terms of both signature and statutory declaration, Mr Marshall, so - - -

PN43

MR MARSHALL: I concede that I have not been able to get the documents signed before this morning and they were faxed to me this morning. I just want to confirm that you have received those.

PN44

THE COMMISSIONER: Well, at this stage we haven't. I can have my associate check but, if you say that, they're probably still within our computer system but my associate will contact you after this hearing if we don't have those and follow-up on the originals, Mr Marshall.

PN45

MR MARSHALL: Yes, I just want to double-check. It was faxed on [phone].

PN46

THE COMMISSIONER: That's correct.

PN47

MR MARSHALL: That was done about 9.30 - that's when I was advised it was done.

PN48

THE COMMISSIONER: All right. Well, that's why we wouldn't have them. Oh, that's your time.

PN49

MR TRIPODI: It's Mr Tripodi here. What about the CEPU? Have they - - -

PN50

MR ALEXANDER: Alexander from the CEPU. Yes, we sent a faxed copy up late yesterday afternoon.

PN51

THE COMMISSIONER: Mr Alexander, we do have those.

PN52

MR ALEXANDER: Yes, and the originals will be following.

PN53

THE COMMISSIONER: All right. So it seems as though we have confirmation from all of the parties in regard to their intention to sign or confirmation in a faxed form and my associate will follow-up if there's any originals over the next couple of days that are outstanding, Mr Tripodi.

PN54

MR TRIPODI: It's Mr Tripodi. Could I just like - in our view we think we should be in a position, given that all the parties have either provided copy documents and provided them to the Commission, that we can go ahead with certification. In our view, perhaps the Commission might want to make some directions for originals filed in a Registry of the Commission, but at this stage as all parties have expressed an intent by the signing of the statutory declaration, albeit that the Commission may not have the original, and have signed the signature page, albeit that the Commission may not have the original, that we can proceed to certification of the agreement.

PN55

THE COMMISSIONER: All right.

PN56

MR TRIPODI: So that being the case, we would like to rely upon the statutory declaration of Mr Russ Collison that was filed in the Sydney Registry of the Australian Industrial Registry on 11 November 2003 and the agreement - and we rely upon the statutory declaration which sets out the various steps taken by the parties to meet the statutory pre-requisites. The steps are outlined that the employer took, at least 14 days before any approval was given, to ensure that employees had ready access to the proposed agreement in writing. That is set out at point 6.4 of the statutory declaration. At point 6.5 we have the information sessions conducted at each site for each shift which were undertaken to explain the terms of the agreement to the employees pursuant to section 170LJ(2) of the agreement.

PN57

At 6.6. of the statutory declaration of Mr Collison, we have steps - information sessions specifying the manner in which the explanation of the terms of the agreement took place to deal with people's particular circumstances and need. At point 6.7 of the statutory declaration we have the steps taken by the employer to ensure that employees had a reasonable opportunity to decide whether they want to give approval to the agreement and that sets out how voting was conducted by a secret ballot jointly administered by the co-operative and union delegates and that also explains how all employees were notified by post of the timing of the vote. All employees who were absent on the day were provided with absentee postal votes. All employees who were able to cast a vote did so with the result of 278 out of 300 employees cast a valid vote.

PN58

Then we have Part VII relevant underpinning awards set out for the purposes of the no disadvantage test, namely the New South Wales Sugar Industry AWU Award 1999 and the various parts of the Metal Engineering and Associated Industries Award. It's our submission that certification would not result in a reduction in the overall terms and conditions of employment and we seek a nominal expiry date given to the agreement of 31 July 2006. So relying upon the terms of the statutory declaration, we say that the agreement would meet all the provisions of the Act and should be certified in accordance with the filed document.

PN59

THE COMMISSIONER: All right. Thank you for those submissions, Mr Tripodi. My associate has checked, Mr Marshall, and there's been no receipt of that fax so we'll follow that up with you after the hearing.

PN60

MR MARSHALL: Okay. Well, I mean, I've got a copy of the statutory declaration with me.

PN61

THE COMMISSIONER: All right. We'll follow that up with you. I understand that you've sent it but we've - my associate has checked all the Registry and everywhere but we'll follow that up with you after the hearing, all right. Who would like to give the submissions - would anyone else have any submissions to provide in relation to the agreement?

PN62

MR MORRISON: Ian Morrison, from the AMWU, Commissioner.

PN63

THE COMMISSIONER: Thank you, Mr Morrison.

PN64

MR MORRISON: While Mr Tripodi says that the agreement should be certified and the AMWU supports that position, we are concerned that there are certain aspects of the agreement which are at best ambiguous and at worst we say sail awfully close to making the agreement uncertifiable. However, we say that if certain undertakings are given by the employer that those concerns can be addressed and therefore the agreement can proceed to certification. If it's appropriate, Commissioner - - -

PN65

THE COMMISSIONER: Yes.

PN66

MR MORRISON: - - - I will take you to the various sections that need to - perhaps the undertaking can be given.

PN67

THE COMMISSIONER: All right, yes.

PN68

MR MORRISON: Clause 3, the application clause of the agreement, refers that the agreement shall apply to establishments at New South Wales Sugar Milling Co-operatives Limited, Harwood Island, Broadwater, and Condong, and all employees were bound by the terms. Now, my understanding is that at the voting process, there were, in fact, employees from sites other than those three sites mentioned, and it is our understanding that those employees were also under the assumption that they would be covered by the terms of the agreement. We say that it would be appropriate if Mr Syme, or someone on behalf of the company, gives an undertaking that the agreement also covers those sites. In particular, I'm thinking of a site at Tweed Heads, and perhaps, I understand, some workers from Grafton were also involved in the ballot and Mr Syme might have the opportunity to expand on that.

PN69

THE COMMISSIONER: So, Mr Morrison, are you aware of which sites you're suggesting - employees from which sites were present?

PN70

MR MORRISON: As well as those three sites mentioned in the agreements, it's my understanding that there was workers from a bagging site at Tweed Heads, and I also have reports - and I have not confirmed this - that there were some workers from Grafton, but as I said, Mr Syme, who is in possession of the - who voted and where they're from, would be the best person to say that. And I mean, the concern is, of course, that if he's not prepared to give that, then they had no business voting on the agreement, and it does bring into question the validity of the vote.

PN71

THE COMMISSIONER: So your submissions there are that the application clause is deficient if, in fact - I'm just trying to summarise, to get an understanding - the application clause is deficient if it is to cover those sites and - - -

PN72

MR MORRISON: That's correct, and it needs an undertaking. I mean, I understand they're only small sites, but that they do need to be, of course, covered by - well, in the case, workers who voted, I believe, in good faith, that they were voting on - to cover their employment.

PN73

THE COMMISSIONER: All right. Well, it might be - Mr Syme, we might hear - and for all the other parties - all of Mr Morrison's submissions, and then if we have the relevant parties respond after that?

PN74

MR MORRISON: That would be my preference, Commissioner.

PN75

THE COMMISSIONER: All right.

PN76

MR MORRISON: The other clauses that I think are of concern, is clause 5, the date and period of operation, in the second paragraph, where it says:

PN77

The parties agree that the operation of the next certified agreement will be three years, and that the nominal expiry date will be 1 July 2009.

PN78

As I'm sure the Commission would accept, it is not appropriate for an agreement to - conditions beyond the three-year period, the life of the agreement, and therefore we say that the second paragraph - undertaking should be made for the second paragraph to be deleted from this agreement. The next clause that is of concern to our union is the - is in the, I think, Part IV of the appendix, Part I, "Best Practice Initiatives - The Consultative Mechanisms".

PN79

THE COMMISSIONER: Now, what page is that on, Mr Morrison?

PN80

MR MORRISON: Page 6 of 69.

PN81

THE COMMISSIONER: Page 6.

PN82

MR MORRISON: And page 5 of 69.

PN83

THE COMMISSIONER: All right.

PN84

MR MORRISON: We would be seeking an undertaking from Mr Syme as to how it is understood the various bargaining units would work, and negotiating committees would work, as we see that currently, and as it's worded, it is ambiguous. There could be some confusion in the future as to how these various bodies would operate, and it is - we'd be really in your hands, Commissioner, whether you think it appropriate that the agreement be certified as it is, and then the matter is resolved and a variation to the agreement to remove the ambiguity is made by the various parties during the life of the agreement, or whether Mr Syme can make some undertakings that would address that ambiguity.

PN85

THE COMMISSIONER: Well, take me to this particular ambiguity that you're suggesting.

PN86

MR MORRISON: Well, in particularly (b), the bargaining units, so 4.1(b) - - -

PN87

THE COMMISSIONER: 4.1(c)?

PN88

MR MORRISON: Bargaining Units. The operating of the various bargaining units could be - we are not clear, on the agreement, how the various bargaining units will interact with each other.

PN89

THE COMMISSIONER: All right. You said 4.1(c).

PN90

MR MORRISON: No, 4.1(a) - 4.1, sorry, "Consulting Mechanisms, Bargaining Units", I think on page - - -

PN91

THE COMMISSIONER: Oh, I see. Yes. 4 - - -

PN92

MR MORRISON: - - - page 69.

PN93

THE COMMISSIONER: 4.1(b).

PN94

MR MORRISON: Yes.

PN95

THE COMMISSIONER: Yes. All right.

PN96

MR MORRISON: So - and then - - -

PN97

THE COMMISSIONER: So - - -

PN98

MR MORRISON: - - - 4.1(b)(ii), "The Peak Negotiating Committee" - again, we would seek some clarification from Mr Syme as to how these would be intended to operate, as we found, also, that wording ambiguous, and their interrelationship.

PN99

THE COMMISSIONER: All right.

PN100

MR MORRISON: And also I've put up a possible alternate way that can be addressed, whether we make application in the future - - -

PN101

THE COMMISSIONER: All right. Was that explained to employees, how those bargaining units would work?

PN102

MR MORRISON: From my understanding, the employees have different recollections of how it was explained to them, depending on the various sites, and I think it might be appropriate for Mr Syme to address clearly, and on the record, how he understands these various bargaining units and peak negotiating committee will operate, so to avoid any confusion in the future. Or, alternatively, as I said, we can seek a hearing later, if he would acknowledge that.

PN103

THE COMMISSIONER: All right. And how do you think - I understand your submissions in relation to the ambiguity. How do you say that that impedes the certification, that particular clause?

PN104

MR MORRISON: Well, as I said, it is just - the agreement is not - it should be clear that the agreement should not, in fact, contain discriminatory provisions, and it could be interpreted that the agreement could be - if those agreements were interpreted one - if those sections were interpreted one way - and I'm sure that's not the intent - it would then be a discriminatory provision which would make the agreement uncertifiable, and we don't want that to occur.

PN105

THE COMMISSIONER: All right. So you're saying LU - it's a provision in - - -

PN106

MR MORRISON: Yes.

PN107

THE COMMISSIONER: - - - potential in contravention of LU(2)(a)?

PN108

MR MORRISON: Yes. I think you might be in possession of the letter that I - - -

PN109

THE COMMISSIONER: Yes, that's been forwarded to all parties, as I understand.

PN110

MR MORRISON: Yes, it has, yes.

PN111

THE COMMISSIONER: All right. Thank you.

PN112

MR MORRISON: Okay. The next clarification we would be seeking from Mr Syme is in the Appendix 4.29, page 23 of 69, which covers periods of leave, and it primarily goes to the third paragraph, 4.29, where employees can be directed to take leave without pay, and for clarification as to whether that direction would only apply to the Christmas and Easter period, which is what I understood it to apply to during the mass meeting, but again, it is unclear from - and while I accept that might be the intent, it is unclear during the periods of leave, but I think an assurance from Mr Syme that that's the case would be satisfactory.

PN113

THE COMMISSIONER: Right.

PN114

MR MORRISON: I believe other unions might have concerns that they wish to raise, so I might leave mine there if that - - -

PN115

THE COMMISSIONER: All right. That's the extent of your objections or concerns?

PN116

MR MORRISON: Apart from that, Commissioner, we say that the agreement - we would be asking the agreement be certified as appropriate with those undertakings given.

PN117

THE COMMISSIONER: All right. Thank you. Who else would like to - Mr Alexander, do you have any submissions to make?

PN118

MR ALEXANDER: Alexander from the CEPU. I'll support Mr Morrison's submissions there in relation to the CEPUs concerns. There's certainly some concerns in relation to how the bargaining units are going to operate in the process of the plant, and that's a real concern, but I support Mr Morrison's submissions there.

PN119

THE COMMISSIONER: All right. And Mr Marshall?

PN120

MR MARSHALL: Commissioner, it's unfortunate that you don't have the declaration from our side before you, but I'll just go through some of the issues that are raised in the statutory declaration. The first is that during the bargaining period, the company ceased making union-fee deductions from three of the unions - I understand, certainly, they ceased taking CFMEU deductions out, and they continued to make deductions for AWU fees, so already they're in breach of the agreement before it's certified, so I want - - -

PN121

THE COMMISSIONER: In what way?

PN122

MR MARSHALL: I want an undertaking from Mr Syme that the deduction of the union fees will be recommenced, and that back-payment - the necessary back-payments will be made promptly.

PN123

THE COMMISSIONER: Well, just a minute, Mr Marshall. On that provision, there's a provision in here on deduction of union fees, is there?

PN124

MR MARSHALL: It's one of the non-award agreements, Commissioner, which - it's a provision of the agreement that those non-award agreements are not changed for the life of the agreement, and, as I say, that was quite clearly changed during the bargaining process. The second issue, Commissioner, is that the method of voting on this agreement was one that was completely at variance with the wishes of CFMEU members, and indeed, I was present at a mass meeting that took place at Ballina RSL where there was an overwhelming vote for the agreement to be endorsed by a mass meeting, and I want an undertaking from Mr Syme that, in the next round of bargaining period, the life - the nominal life of this agreement, or while it's in force, that they won't be forcing our members to have secret ballots, as they did this time. The third issue, Commissioner, is that of co-generation. Our members at Broadwater and Condong were all personally assured by their supervisors at both sites that they would, indeed, be employed to do the co-generation work individually. Now, I want an undertaking from Mr Syme on transcript again that that is the case.

PN125

THE COMMISSIONER: Well, just a minute, Mr Marshall. Going back to the method of voting, are you disputing the valid majority in favour of this agreement?

PN126

MR MARSHALL: No, I'm disputing the manner in which the valid majority was arrived at. The point I'm making was that it was completely at variance with the wishes of the members that I represent, and my understanding is that the metalworkers and the ETU people also wanted to vote by secret - by a mass meeting, and the company just basically rode roughshod over 20 years of practice in terms of agreement-making - that's my understanding - and an imposed secret ballot.

PN127

THE COMMISSIONER: All right. But you're not disputing that as per the statutory declarations that I've received to date, that a valid majority was, in fact, genuinely assessed in support of this agreement?

PN128

MR MARSHALL: Well, I can't comment on the other statutory declarations from the other unions - - -

PN129

THE COMMISSIONER: No, no, but your understanding, from your union - because I understand it that the secret ballot, the assessment, was undertaken by co-operative and union representatives.

PN130

MR MARSHALL: Yes, I - well, in fact, what I'll do is I'll read the - I'll read 6.1 of the statutory declaration so you'll understand our union's position.

PN131

Although the agreement was approved by the majority of employees, CFMEU member employees were forced to vote ...(reads)... members, and agree to and abide by this voting modality for the term of this agreement.

PN132

THE COMMISSIONER: So your issue is with the manner of the vote, but not with the result that occurred?

PN133

MR MARSHALL: That's correct, Commissioner.

PN134

THE COMMISSIONER: All right. Next issue.

PN135

MR MARSHALL: The next issue, Commissioner, and it arrives in point 6.5 - - -

PN136

THE COMMISSIONER: All right. Well, just a minute, I think I cut you off. In terms of the co-generation, again, how is that issue related to the provisions of this particular agreement?

PN137

MR MARSHALL: Clause 4.33.

PN138

THE COMMISSIONER: Clause 4.33.

PN139

MR MARSHALL: Yes.

PN140

THE COMMISSIONER: Wait till I get that.

PN141

MR MARSHALL: Where you see there co-generation of this clients to - page - that we signed it - it's after the redundancy agreement, sorry.

PN142

MR MORRISON: 42 or 69.

PN143

THE COMMISSIONER: Thank you.

PN144

MR MARSHALL: You will see, it talks about Introduction of Co-generation and it says:

PN145

..... to commissioning New South Wales Sugar Mills Co-Operative employees will man the operation and maintenance services associated with the instructions of Joint Venturer Co-Generation project in line with the provisions of the current certified agreement.

PN146

I am advised by members of both Broadwater and Condong that they asked specific questions of the management as to whether they personally would be doing the co-generation work and they were all assured individually that their jobs would be secure and that they would be doing the co-generation work. As the clause stands at the moment, it is fairly ambiguous and could mean any number of things.

PN147

THE COMMISSIONER: But was that - did your union seek to negotiate confirmation of that in the clause of this certified agreement. Was there a provision put forward?

PN148

MR MARSHALL: There was no negotiation, Commissioner, with regards to the balloting of this agreement. The agreement was promulgated by the company during an unconsulted ballot and - - -

PN149

THE COMMISSIONER: I'm not talking about the vote. I'm - - -

PN150

MR MARSHALL: We had no opportunity to negotiate, Commissioner, over any of the issues that are in the agreement. It was - - -

PN151

THE COMMISSIONER: But isn't it that your representatives are on the bargaining unit?

PN152

MR MARSHALL: And it's made quite clear in our statutory declarations that this was the manner in which the agreement was promulgated. At 6.4 it makes the point that there was no negotiation for CFMEU members' delegates over the contents of the agreement. There was no negotiation with CFMEU members delegates or officials over the concept of this document or the method of voting. It makes the point that the secret ballot was in defiance of the CFMEU members wishes and that each CFMEU member was disadvantaged in the process, due to the company imposed vote without consulting a single bargaining unit.

PN153

Single bargaining unit was - I mean, Dennis can correct me if I'm wrong on this - was not consulted over any of the balloting that took place over the agreement. The company just promulgated the agreement, issued the memo, and due to various legal decisions that have come out, due to the balloting processes, particularly one involving the metal workers, we were forced into a situation where we had no option other than to co-operate with the ballot. It certainly wasn't as rosy a process as this podium presented, unfortunately.

PN154

So anyway, we want those undertakings on co-generation. There is also the issue - I back up the concern of - - -

PN155

THE COMMISSIONER: How do you say that that particular provision, as it stands, without those undertakings, prevents the certification?

PN156

MR MARSHALL: Well, it goes to the valid majority issue, Commissioner. CFMEU members only voted on the agreement after they had been given the undertakings that their jobs would be safe under co-generation. Those were the circumstances under which they voted on the agreement and we need an undertaking, reaffirming what our members were told in terms of the balloting process, that their jobs would be secure under co-generation.

PN157

THE COMMISSIONER: Right, and who do you say gave them those explanations or confirmation, at which meetings and by whom?

PN158

MR MARSHALL: By the mill management at both Broadwater and Condong. This is the issue as to why we both - the metal workers and ourselves - have asked for a hearing in Ballina on this agreement because if we don't get the undertakings that we want from the company today, then presumably we will need to have an affidavit filed too with the undertakings and then that evidence will need to be first tested if the company disputes those undertakings were given. I will repeat the issue of job security under co-generation was probably the most important issue for our members in the balloting process and it was only once the company had given those undertakings that they felt a little better about voting on the agreement, although no one was really happy about voting on it, given these outrageous procedures adopted by the company.

PN159

THE COMMISSIONER: All right. Any other issues, Mr Marshall.

PN160

MR MARSHALL: Yes, going back to - going to 7.6 and 7.61, the issues to do with preventing and settling disputes. The statutory declaration reads:

PN161

The issue of the meaning of status quo is one that's caused much disputation under the previous agreement ...(reads)... respect of the co-op's understanding and intent behind their agreement to these provisions at the hearing - - -

PN162

THE COMMISSIONER: Sorry, Mr Marshall, the 7.6 - that is the provision in the agreement, not the status quo - not the - is this on page 53 of 69 or is it 7.6 in your stat dec you are referring to?

PN163

MR MARSHALL: It's in the statutory declaration, Commissioner, I am talking about.

PN164

THE COMMISSIONER: All right. And it's in relation to the status quo provision in the agreement on page 53 of 69 or - - -

PN165

MR MARSHALL: Correct, Commissioner.

PN166

THE COMMISSIONER: Right.

PN167

MR MARSHALL: As you will be well aware, we've had a lot of disputes over this issue and I want to get a clear understanding of what the intent of the company is with regard to the status quo and the other part of that, is that clause 8 of the agreement - well, I will read the second part of 7.62, where it's written:

PN168

Clause 8 explicitly and without qualification empowers the Commission to undertake conciliation and/or arbitrate under sections 111AA or 170LW and any other relevant provisions of the Workplace Relations Act.

PN169

We require undertakings in this regard from the co-op.

PN170

Then there is the co-operative - as disputed under the last agreement which had exactly the same wording whether arbitration for that could take place under this agreement under that clause and we want an undertaking from the company that they agree that arbitration can take place if the dispute under section 170LW or 111AA gets to that point.

PN171

THE COMMISSIONER: Right. Again, I understand your submission, Mr Marshall, but in terms of certification and in terms of undertakings under section 170LV, how do you say that without that undertaking or the provision as it currently stands, prevents certification.

PN172

MR MARSHALL: Well, the agreement has to provide procedures for preventing and settling disputes between the employer and the employees. Well, the provisions themselves have actually caused much disputation under the last agreement and I want to be certain that this grievance and dispute avoidance procedure is just that, a dispute avoidance procedure. Up to date, it's been a dispute causing procedure and without a clear undertaking from the company as to what their understanding of status quo is, my concern is that the dispute avoidance procedure will continue to be a dispute generation procedure and waste much of your time.

PN173

THE COMMISSIONER: Yes. I know that that has been a feature of a number of disputes and I think part of several of the recommendations is that it should be focused upon within the negotiations of the particular agreement.

PN174

MR MARSHALL: Well, as I said, Commissioner, there was fundamentally no negotiations before the balloting of this agreement so there really wasn't an opportunity to have those issues discussed. The company refused repeatedly to meet with the single bargaining unit and completely contradictory to their statement to the Press. They insisted on meeting with the Sydney based union officials only plus a couple of members of the SBU, which the Sydney based officials refused to do that and consistently insisted that the company meet with the single bargaining unit but the company refused to do that. They put this agreement up for ballot instead. So you really need to understand there wasn't negotiation. It was just balloting.

PN175

THE COMMISSIONER: Right. All right. I understand your submission in relation to that, that you are seeking another undertaking there and Mr Syme or the other parties will respond to that. Is there any other issues on that, Mr Marshall?

PN176

MR MARSHALL: No. That's it for me, Commissioner.

PN177

THE COMMISSIONER: All right. And you say your stat dec provides information in relation - that's what you have been reading from in relation to each of those particular points.

PN178

MR MARSHALL: Yes. I've been reading those out one by one.

PN179

THE COMMISSIONER: All right. And that's only been sent to the Commission. The other parties don't have copies of that, do they?

PN180

MR MARSHALL: I'm not sure. No, not to my understanding, no.

PN181

THE COMMISSIONER: No, that's all right. All right. Well, is there any other party firstly that has any disagreements with the document that they would wish to provide submissions on before I ask Mr Syme and perhaps Mr Tripodi to respond. No? All right. Well, Mr Syme, do you wish to respond?

PN182

MR SYME: Commissioner, yes. I say that it certainly would have been advantageous had these matters been put to us in writing prior to this certification hearing and we could have given those matters some consideration, so that I could respond in full. I know, Commissioner, that you have asked the question on a number of occasions, how are these matters going to prevent the certification of this agreement. Now, my understanding from our company point of view is that we have conducted a range of negotiations, negotiations with all four union parties.

PN183

We had around about nine meetings, which we allocated eight hours per meeting. I would suggest to you that is a significant amount of time to negotiate and discuss the wording of clauses. There are clauses in here that have been negotiated, offered in good faith, to have an agreement certified. The agreement has been put to a secret ballot vote. The AWU as one of the parties who cover 50 percent of the membership endorsed the secret ballot.

PN184

At the secret ballot - Mr Marshall talks about CFMEU not being in agreement with the ballot; well, that is the extent of the workforce. So certainly, at least 50 per cent of the workforce endorsed the secret ballot, and a percentage of the other unions as well.

PN185

MR MORRISON: Commissioner, it is Ian Morrison now. I object to this. You have asked - we are saying - if we are seeking directions hearing, if we are going to have a dispute hearing, fine, let's have a dispute hearing. If Mr Syme is going to give assurances, then he can give assurances. But if we are going to have a dispute hearing, then we do it properly and we do it in Ballina and we do it with witnesses.

PN186

THE COMMISSIONER: Well, what I am seeking to clarify at the moment is you, Mr Morrison and Mr Marshall, have asked for certain undertakings, and what I am endeavouring to do with this particular matter is to ascertain whether the undertakings are going to be provided or clarify what issues will need to be covered and whether they will need to be covered in Ballina with witness evidence, or whether, subject to what Mr Syme says, the Commission can certify this agreement.

PN187

If in fact the undertakings aren't going to be provided - and I will hear from you, Mr Morrison, after this - you have still got outstanding issues. It will assist the Commission to clarify whether it needs to be heard in Ballina, how long, what witnesses you need to provide, those particular issues.

PN188

MR MORRISON: Certainly.

PN189

THE COMMISSIONER: All right.

PN190

MR MORRISON: Thank you, Commissioner.

PN191

THE COMMISSIONER: Thank you, Mr Syme.

PN192

MR SYME: Commissioner, so in regards to giving undertakings, I mean, I am happy to give undertakings if that is necessary, but I certainly would like to hear from you whether matters that have been raised are going to prevent the certification of the agreement. I mean, it appears to me that I am happy to give undertakings, but it appears to me that the unions want to involve - get involved in negotiations of some of these matters in the middle of a certification hearing, without providing any prior notice. And I suppose before making undertakings I would like to hear from you as to whether these matters are going to prevent the certification of the agreement today.

PN193

THE COMMISSIONER: Well, certainly, Mr Syme, most of them I have only heard about this morning, but if they are matters that there was, in terms of the explanations, a confirmation provided to employees and that was the basis on which they voted in support of the particular document, so in reading a particular provision their understanding of the provision was in fact influenced by the explanation that was provided to them which coloured how they read that particular provision and voted in support of it, then perhaps that does go towards the certification or prevention of certification of a particular provision.

PN194

So if in fact it is that the explanation that was provided that, yes, in terms of co-generation these employees were guaranteed in terms of the explanation of that particular provision that they would be employed, then I would be interested to hear confirmation from you if that was the explanation that was provided. Similarly, in relation to - there was another provision - the bargaining units that Mr Morrison raised as that there was explanation as to how those particular units were to work. But that may clear up some of the issues that the AMWU and the CFMEU have.

PN195

Now, there are other things in there where undertakings may simply resolve any of the ambiguity between the parties and clarify provisions, but there are some things that by not providing an undertaking at this stage, and simply looking - and this is the first time I have heard the detail of some of these provisions. I know Mr Morrison did provide a summary in terms of the provisions of the Act, but not a reference to the particular provisions of the agreement, some of them may not require an undertaking, but certainly I can understand that it is going to provide more of a smooth transition to this particular agreement if there is going to be a common understanding of what the provisions mean.

PN196

MR SYME: Okay. Well, I am happy to go through the ones - - -

PN197

THE COMMISSIONER: All right.

PN198

MR SYME: - - - that are put to us, and provide as much an undertaking I can, given that, as with you, we are totally unprepared for the matters that are raised.

PN199

THE COMMISSIONER: All right. Well, which ones can you cover at the moment?

PN200

MR SYME: Well, I can try and cover them all, Commissioner.

PN201

THE COMMISSIONER: All right, that would be helpful.

PN202

MR SYME: I mean, I will attempt to do that. I have got a list here that I have made as Mr Morrison and Mr Marshall provided their submissions, and if you can perhaps just correlate that with your list so I don't miss something.

PN203

THE COMMISSIONER: All right. Well, I have got them all numbered here, so you start and I will go back over them, if I think there are any there that have been missed.

PN204

MR SYME: Okay. The first issue, I understand, was the matter of the employees who voted. There was mention of a bagging plant at Tweed Heads. This matter has been discussed with you previously in a previous matter, Commissioner.

PN205

THE COMMISSIONER: Yes, that was - - -

PN206

MR SYME: The special bagging plant or bagging site, if you want to call it, is at Murwillumbah, it is not at Tweed Heads, and it is about a three or four minute drive down the road from our Condong site, and even though it is located down the road, we would classify it as part of the Condong site. It is a warehousing - it is a warehouse that has been leased in an industrial estate down the road from Condong. If we had had room on the site at Condong for the warehousing and bagging, the machinery would have been put at Condong, but we did not have enough room on the site, and hence we rented premises down the road, but certainly not at Tweed Heads.

PN207

Now, those employees who voted down there - there are around 10, as I understand, employees - they are employed under the enterprise agreement. They are sugar baggers in that they take bulk sugar and through the use of machinery they put it into retail bags, similar to what we do with our refinery plant at Harwood. They had opportunity to vote on the agreement because they are covered by the enterprise bargaining agreement, and I understand that they are members of the AWU.

PN208

THE COMMISSIONER: All right. In terms of the application clause that Mr Morrison raised, you say that they are covered under the term where it makes reference to Condong.

PN209

MR SYME: Yes, that is right.

PN210

THE COMMISSIONER: So they are part of the Condong - - -

PN211

MR SYME: Well, we would see it that we have three major sites.

PN212

THE COMMISSIONER: All right. But do you have any objection - I think, Mr Morrison there asked for clarification as to reduce any ambiguity there that those particular employees are covered and bound by the terms of this agreement?

PN213

MR SYME: Certainly not. As far as we are concerned, they are covered, they voted, and they are paid under the enterprise bargaining - - -

PN214

THE COMMISSIONER: Mr Morrison, is that correct, how I summarised that; that that was you wanted clarification that those employees were to be covered by the application clause?

PN215

MR MORRISON: Yes, it is Ian Morrison, yes, that is correct, Commissioner. It is just that Condong is not Murwillumbah, and I forgive my lack of knowledge of the far north coast.

PN216

THE COMMISSIONER: All right.

PN217

MR MORRISON: And there are some questions also about whether any employees from Grafton also voted, because I haven't been able to clarify that issue as well.

PN218

THE COMMISSIONER: All right.

PN219

MR MORRISON: And Mr Syme might take that opportunity to clarify - - -

PN220

THE COMMISSIONER: All right. So as I understand it, you are willing to give an undertaking - or it is probably a clarification, but if we term it an undertaking in this respect - Mr Syme, that employees employed at the Murwillumbah bagging plant are in fact, as per the fact that they voted, covered by the terms of this agreement and are seen as - we can look at the wording of that agreement undertaking at a later stage - but are covered by - considered to be part of the Condong plant. Mr Syme?

PN221

MR SYME: Yes, I am happy to give that undertaking, yes.

PN222

THE COMMISSIONER: All right. Now, what about the Grafton employees Mr Morrison makes reference to?

PN223

MR SYME: Yes, well, at Grafton there is a plant that is at Grafton that handles bulk sugar to the rail. Now, currently there are no employees at that plant that are covered by the enterprise agreement. There are two employees down there, as far as I understand, and both of them are covered by common law contracts. They are staff, as we refer to them in this organisation.

PN224

THE COMMISSIONER: All right. They did not vote in relation to this agreement?

PN225

MR SYME: Certainly not.

PN226

THE COMMISSIONER: And they are not seen to be covered?

PN227

MR SYME: Certainly not.

PN228

THE COMMISSIONER: All right. Do you require an undertaking there since Mr - there is a transcript here of these proceedings, Mr Morrison, and Mr Syme has clarified that position?

PN229

MR MORRISON: Well, I would be requesting transcript of the hearing anyway, but that aside, my concern about Grafton, Commissioner - - -

PN230

THE COMMISSIONER: Yes. The transcript will be provided to all of the parties. All right. So that is not needed to be covered by an undertaking now it has been clarified on transcript, Mr Syme and Mr Morrison.

PN231

MR MORRISON: Yes.

PN232

THE COMMISSIONER: Move on to the next one, Mr Syme.

PN233

MR SYME: Yes. I understand the next one that was raised was the expiry date, clause 5, date and period of operation.

PN234

MR NOEL: Excuse me, Commissioner, it is Dennis Noel here. There is still one clarification on employees, and that is the farm-hands at the test-farms at Harwood.

PN235

THE COMMISSIONER: Well, that wasn't raised, so I - - -

PN236

MR NOEL: I thought it was raised with Ian Morrison saying there was people that voted that we weren't sure who were allowed to vote. The farm-hands at Harwood definitely voted, and I was assured by Bill that they are covered by the agreement. I just write that on transcript because some of the conditions of the agreement that farm-hands are not participating in at the moment.

PN237

THE COMMISSIONER: Well, Mr Noel, I will ask Mr Syme to cover that, but I did ask, prior to getting Mr Syme to respond, whether anyone else had any other particular issues. All right. So have you got any other issues at this stage?

PN238

MR NOEL: No, it was just the raising of the farm-hands; I thought it was raised with the employees who voted but weren't named in the agreement, and the farm-hands weren't named.

PN239

THE COMMISSIONER: All right. Mr Syme, can you cover that particular issue?

PN240

MR SYME: Yes, Commissioner. I understand that Mr Noel refers to them as farm-hands, but as far as we are concerned they are employed as labourers at our Harwood site, they work for the productivity area, and yes, they do obviously work on the farm, but they are still Harwood employees. I understand they voted in previous enterprise agreements. I understand they are AWU members. We are talking about four employees, and they are covered by the provisions of the enterprise agreement. That is my understanding.

PN241

THE COMMISSIONER: So that has been clarified on transcript; is there any objection to their coverage, are you saying, Mr Mulcahy - sorry, Mr - - -

PN242

MR NOEL: There is - Noel. No, there's no objection at all. I'd just like that on transcript; that is correct.

PN243

THE COMMISSIONER: All right. Well, that's been covered on transcript. So that matter has been met then.

PN244

MR NOEL: Yes.

PN245

THE COMMISSIONER: All right. Mr Syme, next issue?

PN246

MR SYME: Okay. The next issue I understand was encapsulated in clause 5, Date and Period of Operation.

PN247

THE COMMISSIONER: Yes.

PN248

MR SYME: Well, this is where the parties have agreed that the period of operation of the next certified agreement will be three years, that is, the nominal expiry date will be 31 July 2009. That clause has been replicated from the previous agreement which was the Sunshine Sugar Certified Agreement 2001 which was certified by Commissioner Bacon with the exact same wording except that the dates have changed. Now, in the negotiations, we understand that the parties have agreed that the next agreement will be a three year agreement. Now, that was previously, as I've said, previously certified in the 2001 agreement and hence it's been repeated again here. Now, obviously, if the Commission can't certify it in that form, we don't have a choice of that, but - - -

PN249

THE COMMISSIONER: Well, I can make these remarks on transcript that in accordance with section 170LT, then the first paragraph meets section LT in terms of the nominal expiry date as pertaining to the current agreement is not more than three years. Any new agreement or any current agreement, or the provisions of any further agreement can't operate until approved. I mean, I can only look at the provisions of the current agreement against the current legislation, so whilst it might express an intention of the parties, it's questionable about - as to whether that particular provision should, in fact, prevent the certification of this particular provision, but what I can indicate is that the next agreement will be certified as per the nominal expiry date that is expressed in that particular agreement.

PN250

So it will only be approved on what is presented to the Commission at that time, so it's valid only insofar as it may express an intention and it would be disappointing if that particular provision was to prevent certification of this particular agreement. The first paragraph is obviously the critical paragraph in relation to the term and the nominal expiry date, obviously, of this particular agreement. I see that that second paragraph only expresses an intention and that's what I'd put on transcript. The parties, in terms of negotiating the next agreement and the nominal expiry date, the wording of that particular provision is the one that would have to be approved and - for certification.

PN251

MR SYME: Yes. Commissioner, well - - -

PN252

THE COMMISSIONER: I understand that it is a duplication of the other provision, but I gather that it may have been viewed in that way when it was certified as well.

PN253

MR MORRISON: That's fine.

PN254

THE COMMISSIONER: That meets your concerns, Mr Morrison.

PN255

MR MORRISON: Yes, it does, Commissioner, I'm quite happy with that.

PN256

THE COMMISSIONER: Mr Syme, do you have anything else to say on that?

PN257

MR SYME: No, Commissioner. The fact that if the transcript reflect that that the - the intent - that was the intention of the parties, we would be satisfied with that.

PN258

THE COMMISSIONER: But that any particular provision and nominal expiry date would be at the - for the approval and negotiation and certification at that stage of the new agreement.

PN259

MR SYME: Yes, that's correct.

PN260

THE COMMISSIONER: All right. Does anyone else have an objection to moving forward on that basis, on that particular provision?

PN261

MR TRIPODI: No, Commissioner. It's Mr Tripodi here. That's fine. That's the way I would see it operating as well, so.

PN262

THE COMMISSIONER: All right. I'm gathering from the silence that I've given everyone else an opportunity to respond there, that there are no other concerns on that basis in terms of that particular provision?

PN263

MR MORRISON: That's correct.

PN264

THE COMMISSIONER: All right. Next issue, Mr Syme?

PN265

MR SYME: I understand the next issue that was raised was in regards to clause 4.2.9, Periods of Leave. I understand that there was concern that the requirement to take leave without pay was only directed towards the periods of compulsory leave listed in that clause. I can certainly confirm that that is the intention. I think that the clause is written quite clearly. It's in regards to the periods of leave listed there - - -

PN266

THE COMMISSIONER: Right. Just for my purposes, Mr Syme, so this is the third paragraph where it says:

PN267

Employees without accrued leave or entitlement to leave, may be required to take leave without pay as directed by the Co-operative.

PN268

And you are saying that that obligation or an entitlement - directions that they may be required to take leave without pay is only associated with which periods?

PN269

MR SYME: Is only - is encapsulated in that clause which deals with the two periods of compulsory leave of Christmas and Easter.

PN270

THE COMMISSIONER: All right.

PN271

MR SYME: There's no intention for that to apply to leave outside of those two periods listed under that clause.

PN272

THE COMMISSIONER: All right. So where the employer may direct the parties to take periods of compulsory leave associated with Christmas and Easter public holidays, if there is no accrued leave, you may be requiring them to take leave without pay on those two periods?

PN273

MR SYME: That is correct.

PN274

THE COMMISSIONER: All right. Mr Morrison - - -

PN275

MR SYME: It's got to be read in conjunction with the two paragraphs above.

PN276

THE COMMISSIONER: Yes. Mr Morrison, does that - - -

PN277

MR MORRISON: Well, I - Commissioner, I'd be seeking and this is because of the history of the disputes you've got up there, something a bit more absolute from Mr Syme that only at Christmas and Easter will workers be required to take leave without pay as directed by the Co-operative.

PN278

THE COMMISSIONER: Right. Well, can an undertaking be provided in terms of - it's simply a clarification of that particular clause, Mr Syme, as you've set out on transcript.

PN279

MR SYME: Right. Well, I've tried to clarify it already. That requirement for people to take - - -

PN280

THE COMMISSIONER: I'm not suggesting that you haven't. Mr Morrison is asking that that would be clarified in this particular - on the certificate to avoid any ambiguity; do you have any objection to that?

PN281

MR TRIPODI: He wants it in blood, I suppose.

PN282

THE COMMISSIONER: Well, I don't think that's helpful, Mr Morrison.

PN283

MR MORRISON: That wasn't me.

PN284

THE COMMISSIONER: I'm sorry, Mr Tripodi.

PN285

MR MORRISON: Mr Tripodi contributing his usual high wit.

PN286

MR TRIPODI: Well, you know, Commissioner, I have to say it's been put on transcript. How more absolute can it be put? It's been just like the other undertakings have been dealt with. They've been clarified on transcript and that should meet Mr Morrison's concerns.

PN287

THE COMMISSIONER: Well, the alternative is that there can be a listing of those that - drawn out from the transcript, of those points of clarification that I can do that if the parties wish that.

PN288

MR SYME: What if Mr Morrison stated as he understands it and I can confirm it or decline it.

PN289

THE COMMISSIONER: In correspondence, Mr Syme?

PN290

MR SYME: No, on transcript now. Let's get it over with.

PN291

MR MORRISON: Well, I'm happy to do that, Commissioner. It's Ian Morrison here.

PN292

THE COMMISSIONER: All right.

PN293

MR MORRISON: But my understanding is that employees will only be directed - employees will only be required to take leave without pay as directed by the co-operative during the Christmas and Easter period.

PN294

MR SYME: Correct.

PN295

MR MORRISON: Well, that satisfies me, Commissioner.

PN296

THE COMMISSIONER: All right. So that's the interpretation of clause 4.2.9, Periods of Leave in relation to when leave may be required to be taken without pay. So that issue has been dealt with on transcript.

PN297

MR SYME: Yes.

PN298

THE COMMISSIONER: All right.

PN299

MR MORRISON: I'm happy with that.

PN300

THE COMMISSIONER: Thank you. Mr Syme, next issue.

PN301

MR SYME: Okay. I understand the next issue, Commissioner, was the ceasing of making union deductions - union dues deductions.

PN302

THE COMMISSIONER: Yes.

PN303

MR SYME: I'll just take you to - I'll take you to clause 4.2.5, page 21 of 69.

PN304

THE COMMISSIONER: Yes.

PN305

MR SYME: Okay. The issue of union deductions is part of the non-award agreements that are attached at the back of the agreement. Clause 4.25 deals with those non-award agreements and makes it very clear that ..... will not be changed during the period of operation of this certified agreement.

PN306

THE COMMISSIONER: You don't - can you - I know that there's a compilation of those documents at the back; any indication of where that particular one falls, Mr Syme?

PN307

MR SYME: Yes.

PN308

MR TRIPODI: 6 of 7.

PN309

MR SYME: 6 of 7. It's the second box from the bottom in the table.

PN310

THE COMMISSIONER: All right. So where's the part that you said that during the operation of the agreement; that's in 4.2.5, you say?

PN311

MR SYME: On page 21 of 69.

PN312

THE COMMISSIONER: All right. So I assume that your submission is that when the union deductions were ceased, it wasn't during the operation of the particular agreements.

PN313

MR SYME: Correct, and when the agreement is certified, we will re-comply with the commitment given on page 6 of 7.

PN314

MR MARSHALL: So Commissioner, do I - Sean Marshall here. Do I understand that to mean that the co-operative will cease union deductions on 31 July 2006 then?

PN315

THE COMMISSIONER: Sorry, Mr Marshall, I couldn't hear you quite properly. You're saying - you assume - - -

PN316

MR MARSHALL: Am I to - yes, am I to take it from what Mr Syme says about the co-operative using that logically against the union deductions on 31 July 2006?

PN317

THE COMMISSIONER: What do you say to that, Mr Syme?

PN318

MR MARSHALL: And look, the point is, Commissioner, the life of the enterprise agreement is still during its period of operation; it's still in effect. It hasn't been terminated, so the agreement is in operation, so they should have been still making those deductions under the last agreement.

PN319

MR SYME: Well, we would need to put extensive submissions to you on that point, Commissioner. What I can say is that, if it provides clarification, is that once this agreement is certified, we will continue to deduct union dues for those members who make that wish known to us.

PN320

MR MARSHALL: What about 31 July 2006 then? You're going to have to apply the same logic then and cease the deductions then?

PN321

MR SYME: I'm not going to make predictions on what's going to happen in 2006.

PN322

MR MARSHALL: Well, based on your actions and behaviour in 2003, it would be pretty simple to make that, using the same logical - you're using that logic and saying, "Well, the agreement has been in operation".

PN323

MR SYME: Well, it's part of the negotiating process. I'm not going to - - -

PN324

THE COMMISSIONER: All right. Well - so you're saying, Mr Syme - - -

PN325

MR SYME: You've asked me to make clarification on this matter as it stands now, and I've made that clarification.

PN326

THE COMMISSIONER: So you're saying that you will recommence making the deductions on certification?

PN327

MR SYME: Correct.

PN328

MR ..........: Commissioner with that - to relation to what Mr Syme has just said, we also ask that he collect the back money that he hasn't collected in the last month or so.

PN329

MR SYME: Well, I'm not going to do that. As soon as certification takes place, we will honour that commitment from that point in time. I think that's fairly reasonable.

PN330

MR MORRISON: Commissioner?

PN331

THE COMMISSIONER: Yes.

PN332

MR MORRISON: It's Ian Morrison here. I don't know if your associate has made you aware, I'm in the middle of a fairly lengthy State Commission hearing.

PN333

THE COMMISSIONER: All right.

PN334

MR MORRISON: And I have taken an inordinate amount of time from that hearing, but I am now being summoned back in by his Honour, so I do have to go back in. So I apologise for leaving and I just hope - - -

PN335

THE COMMISSIONER: Do you have - you don't have anyone else from your union present, do you?

PN336

MR MORRISON: Well, I do. Mr Noel is.

PN337

THE COMMISSIONER: Mr Noel. All right. And the matters will be on transcript then, as well, Mr Morrison, so I might ask for - - -

PN338

MR MORRISON: That's fine, Commissioner.

PN339

THE COMMISSIONER: I might ask for the urgent typing of the transcript so that - as a result of this, I think there are going to be some outstanding issues that I'm going to have to assess prior to certification, but we'll see where we get to prior to the end. If - that transcript should probably come out tomorrow, possibly, if it's urgent, and it might be that I'd ask you to assess that transcript and - with Mr Noel and we'll see what we get from there.

PN340

MR MORRISON: Thank you, Commissioner, just that I will be only contactable through mobile because these are full day hearings.

PN341

THE COMMISSIONER: All right. I understand.

PN342

MR MORRISON: Okay. Thank you.

PN343

THE COMMISSIONER: Thank you. All right. Mr Syme, you've clarified that particular issue, as I understand it. I'll take that under consideration and - to see whether that prevents certification.

PN344

MR SYME: Yes, Commissioner.

PN345

THE COMMISSIONER: Next issue?

PN346

MR SYME: I understand the next issue that was raised was the issue of a secret ballot being undertaken. That matter has been put to you in previous hearings. I can look in my file as to what those hearings were numbered, if you wish, or - do you want me to do that at this point in time?

PN347

THE COMMISSIONER: Well, in relation to the secret ballot, I think the query was from Mr Marshall as to whether you would provide an undertaking in relation to how the voting would be effected in further certified agreements.

PN348

MR SYME: What, sorry?

PN349

THE COMMISSIONER: Well, as I understand it - Mr Marshall, is that what you were seeking?

PN350

MR MARSHALL: I was seeking an undertaking that they wouldn't be forcing CFMEU members to take part in a secret ballot against their wishes in the next round of enterprise bargaining. That's correct. Yes.

PN351

THE COMMISSIONER: But from the - - -

PN352

MR SYME: I'm certainly not going to give that commitment.

PN353

THE COMMISSIONER: But from the Commission's point of view, there was no objection taken by the CFMEU from the actual result of the valid majority.

PN354

MR MARSHALL: It's not the result of the valid majority. It's the manner in which the valid majority was taken that we are objecting to, Commissioner.

PN355

THE COMMISSIONER: I understand that but I, in terms of these proceedings, have to keep going back to the legislation in terms of the certification of agreements.

PN356

MR MARSHALL: Yes.

PN357

THE COMMISSIONER: And whether the issue that you raise would prevent the certification. So Mr Syme has said - I'll take into consideration your submission, and Mr Syme has said that he won't provide that particular undertaking in relation to this issue. So that's something that you would also consider, as I understand it.

PN358

MR SYME: Particularly, Commissioner, given that 50 per cent of the workforce, and Mr Tripodi can probably confirm this on behalf of the AWU, have elected and endorsed the process of using secret ballot. So I'm not going to make a commitment that covers 17 per cent of the rest of the workforce.

PN359

MR MARSHALL: Well, Commissioner, as I said, there was a mass meeting of all three unions which took place at Ballina RSL during the enterprise bargaining period, and there was a near unanimous majority who voted in favour of mass meeting votes on the agreement. So there's a, you know, there's certainly a substantial chunk of the workforce who were very much in favour of a secret ballot, and I'm not aware that the AWU members themselves ever got to vote on the issue, actually. I think it was a decision taken for them by their union that wasn't - was never actually voted on, is my understanding.

PN360

THE COMMISSIONER: So at that mass meeting there were CFMEU - the other unions were there?

PN361

MR ALEXANDER: CEPU - Alexander from the CEPU.

PN362

THE COMMISSIONER: Thank you, Mr Alexander.

PN363

MR ALEXANDER: I'll support Mr Marshall there.

PN364

THE COMMISSIONER: So there were CFMEU, EPU, AMWU?

PN365

MR MARSHALL: That's correct. All three unions - - -

PN366

MR ALEXANDER: The other half of the workforce.

PN367

THE COMMISSIONER: All right.

PN368

MR SYME: Well, Commissioner, I put to you before a number of matters that Mr Morrison has attended, and I can't remember whether Mr Marshall participated at this point in time, but I put to you that there's nothing in the legislation that precludes an employer from putting an agreement out - a proposed agreement and having it voted on by secret ballot. And there's nothing in the legislation that would prevent the Commission from certifying an agreement simply because an employer put an agreement out that was proposed, and had it voted on by secret ballot.

PN369

THE COMMISSIONER: All right. Well, I'll consider that particular issue as well, and I understand that it is not the valid majority that is being taken issue with by any of the unions, or parties to the agreement, but the manner in which it's effected. So I'll look at that particular issue. Mr Syme, next issue?

PN370

MR SYME: Next issue, I understand - - -

PN371

THE COMMISSIONER: I should just say to the parties that, in saying that, if the agreement is not going to be certified, obviously the Commission, under section 170LV, has other options open to the Commission instead of refusing to certify an agreement to provide options to the parties. So rather than simply refusal, I think that there would be a reconvening of the particular matter, if there are issues that would prevent certification. All right?

PN372

MR SYME: That suits me, Commissioner.

PN373

MR ALEXANDER: Yes. Alexander from the CEPU. That would certainly suit us, Commissioner.

PN374

THE COMMISSIONER: All right. I'm just trying to sort of elicit all the issues for all of the parties and, perhaps, how we can deal with it, and I understand that's the intent of the parties at this stage. All right. So, Mr Syme - - -

PN375

MR SYME: That would be my intention, Commissioner. Yes.

PN376

THE COMMISSIONER: Well, I think that's what I'm hearing from, certainly, Mr Alexander and Mr Tripodi, and Mr Morrison, as well, and Mr Marshall, so if I've got that wrong, someone will certainly object to this course. Anyone objecting to moving through the issues for my consideration, and if certification is going to be prevented, then I'll provide reasons or reconvene the hearing.

PN377

MR MARSHALL: Sean Marshall, I agree with that course of action, Commissioner.

PN378

THE COMMISSIONER: All right.

PN379

MR NOEL: Dennis Noel, the same here.

PN380

THE COMMISSIONER: All right.

PN381

MR TRIPODI: Tripodi, the same.

PN382

THE COMMISSIONER: All right.

PN383

MR ALEXANDER: Alexander, the same.

PN384

THE COMMISSIONER: All right. Thank you. Mr Syme, next issue?

PN385

MR SYME: I understand, Commissioner, the next issue raised was the commitment that was made by the organisation in regards to co-generation which can be found at clause 4.33.

PN386

THE COMMISSIONER: Yes.

PN387

MR SYME: Now, during the negotiation, a number of options were put forward by the three unions, being the CFMEU, the CEPU and the AMWU. In those negotiations, the company made an offer, and that offer is reflected in clause 4.33. There was considerable discussion. I'm not saying that that was the desired option of the union. It probably wasn't the desired option of the company to have to put that in. But it was an option that was somewhere in the middle that's been voted on.

PN388

Now, in regards to the commitment and the clarification of that, Mr Noel asked me to put a letter to him that he would have the unions that I've just listed give consideration to, in a telephone hook up, to enable them to be satisfied of our interpretation of this clause. I put those two pieces of correspondence to Mr Noel. He has had his tele-conference. I understand from that tele-conference that the parties were satisfied from what was written in the clause and the two pieces of correspondence that I put to him. I can find those in the minute, if Mr Noel wants to comment on that?

PN389

THE COMMISSIONER: Well, does the correspondence go towards confirming the issues that he raised in terms of guaranteeing their members work in the co-generation area?

PN390

MR SYME: It goes to clarifying that clause 4.33.

PN391

THE COMMISSIONER: Well, Mr Noel, did you receive that correspondence?

PN392

MR NOEL: I received that correspondence and passed it on to the appropriate people at the other mills and, at that point in time, they hadn't commented as far as acceptance or non-acceptance. It was only afterwards that I heard that Paul Somerville and Steve Wagner, the two bosses at Broadwater, had specifically told the CFMEU blokes at Broadwater that they would not be bypassed or be in jeopardy because of green power. And he told them to their faces. So what the letter said from Bill was in general, but at the meeting at Broadwater for the vote, they were specifically told that they would not be bypassed.

PN393

THE COMMISSIONER: Right. But you had the ability to follow that back up with correspondence confirming that, didn't you, Mr Noel?

PN394

MR NOEL: Yes. But, at that point in time, I didn't follow it back up as SBU secretary because it was back in the CFMEU hands to get affidavits to that effect.

PN395

THE COMMISSIONER: Well, Mr Noel, you know, if it's an issue of concern to you and your members, and it's occurring during the negotiations, and you want it confirmed prior to the valid majority, it's a bit difficult to come at the time of certification when a provision has been voted on and ask, you know, additional words to be added or - I mean, you're saying that Mr Syme has provided to you correspondence confirming the co-operative's view and - - -

PN396

MR MARSHALL: Commissioner, it's Sean Marshall here. It's an issue that the CFMEU has raised, and Dennis is correct in what he says. In our members forming their view, when they voted on the agreement, all CFMEU members of Broadwater and Condong had been assured that their jobs would be safe under the co-generation proposal, and that was their understanding of the meaning of clause 4.33. Now, the co-operative have not confirmed that in writing to Mr Noel, and that is why I've asked for the undertaking now, that those - that those undertakings given to our members by the co-operative management of both those mills are confirmed on transcript. If that's not done, then we will need to submit affidavit evidence. That evidence will need to be tested in a hearing - - -

PN397

THE COMMISSIONER: Just so I understand, did Mr Syme provide correspondence to the CFMEU prior to the vote being taken in relation to the co-operative's position about the co-generation?

PN398

MR MARSHALL: The correspondence was provided to Dennis Noel.

PN399

MR NOEL: That was after the vote.

PN400

MR MARSHALL: Yes, after the vote, in clarification as to what that provision meant, and also confirming that those undertakings had been given and, to date - well, I wait with interest to hear what he says.

PN401

THE COMMISSIONER: All right. Well, Mr Syme, what do you say about that issue?

PN402

MR SYME: Okay, Commissioner. Yes, Mr Noel approached me after the vote for further clarification of that call. I understand it had something to do with obviously whether they were going to sign the agreement or not. I wrote him correspondence, I've got it here, dated 7 November 2003. I can read those particular pieces that are important. That piece of correspondence refers to a letter written to Rob Alexander and handed to all employees on 21 July 2003 outlining the co-operative's view on the manning of co-generation.

PN403

That letter which I said has been provided on 21 July 2003 to all employees is the clarification provided. Now, what it says is the New South Wales Sugar Milling Co-operative does not intend to man the co-generation project with persons employed by other organisations. During the last enterprise bargaining negotiations of 2001 the co-operative indicated to the SBU that there would be no loss of permanent jobs due to the introduction of co-generation and the project was more likely to create jobs than to deplete them. And the correspondence continues to go on. I could read that or provide it to you later on, Commissioner, but - - -

PN404

THE COMMISSIONER: Well, what do you say in terms of the explanation that was provided to employees about that provision?

PN405

MR SYME: I would suggest to you that that was the explanation given.

PN406

THE COMMISSIONER: That outside employees would not be used.

PN407

MR SYME: Sorry?

PN408

THE COMMISSIONER: That outside staff would not be used.

PN409

MR SYME: That's correct. I think that's evident in the clause that was voted on. It says:

PN410

Following the Commission the New South Wales Sugar Milling Co-operative will man the operations of maintenance services associated with the introduction of joint venture co-generation projects excluding stockpile in line with the provisions of the current certified agreement.

PN411

I mean, I think that makes it perfectly clear that the intention is that we will use our employees to man those operations.

PN412

MR MARSHALL: Mr Sean Marshall from the CFMEU. I mean, I don't want to sound like a broken record but specific undertakings were given to CFMEU members at both sites that they would be doing the co-generation work. Now, Mr Syme is not prepared to give the undertakings. CFMEU members currently employed at Broadwater and Condong doing the steam operations work will be doing the co-generations work. We'll need to file affidavits and have a hearing in Ballina.

PN413

THE COMMISSIONER: How does that provision prevent the certification?

PN414

MR MARSHALL: Well, Commissioner, there is - I would say beyond - there is a significant likelihood of disputation over the issue. If this agreement is certified without that undertaking then CFMEU members will be rightly aggrieved that the undertaking that the company was prepared to give to get the "yes" vote they are not prepared to repeat on transcript. And given the history of the relations between CFMEU members and the co-operative and the manner in which they locked them out during the bargaining process I think they are right not to trust the management and they are right in their demands - that they have demanded that I do - - -

PN415

THE COMMISSIONER: Locked out during this bargaining process?

PN416

MR MARSHALL: The members have demanded that I get this undertaking on transcript.

PN417

THE COMMISSIONER: Are you saying they were locked out during this bargaining process?

PN418

MR MARSHALL: Yes. That's a separate matter. I'm just giving a bit of context as to the reasons why they don't trust management and the reasons why they want the undertaking they were given during meetings to be repeated on transcript. And if Mr Syme won't do that then we're just going to have to set a date for a hearing in Ballina because - - -

PN419

THE COMMISSIONER: Well, my difficulty is, Mr Marshall, that - you know, the certification of the agreement or the voting on the valid majority of an agreement - I mean, it's the actual provisions. I mean, you're looking at providing additional wording or altering provisions of the agreement after the valid majority was taken.

PN420

MR MARSHALL: No, Commissioner, what I'm asking for is a confirmation by Mr Syme that our members were personally advised at Broadwater and Condong that they would be doing the co-generation work. Because - - -

PN421

MR SYME: Well, you're suggesting that particular persons, Mr Fred Smith, was told that he would have a job in co-generations. That would just - - -

PN422

MR MARSHALL: That's exactly what happened.

PN423

MR SYME: No, I don't - I would say that that's not what happened, Commissioner.

PN424

THE COMMISSIONER: Well, was there a confirmation - - -

PN425

MR SYME: What's happened is that the content of my letter has been explained and that people have been told that the intention is to use co-op employees to do that work.

PN426

THE COMMISSIONER: Did it go - - -

PN427

MR SYME: I would suggest to you that under no circumstance would a manager say to a particular employee, "We can guarantee your employment in this project".

PN428

THE COMMISSIONER: Did it go further, are you aware, Mr Syme, where management representatives indicated that CFMEU members would only be used or would be guaranteed work?

PN429

MR SYME: As in a particular union?

PN430

THE COMMISSIONER: Yes.

PN431

MR SYME: Certainly not.

PN432

THE COMMISSIONER: Because that's the submission of yours, Mr Marshall, isn't it?

PN433

MR MARSHALL: My advice from the delegates is that at the meetings that were held at Broadwater and Condong the members were advised by name that they would be working on co-generations. Now, if the company is denying that then clearly we need to go to affidavits. And, as I state, this was absolutely crucial in the formation of the views of my members in voting of the agreement. But if the company are walking away from that now then that certainly calls into question whether there was actually - well, it basically lied to our members to get a ballot that - - -

PN434

MR SYME: That's ridiculous.

PN435

THE COMMISSIONER: When is the co-generation likely to be introduced?

PN436

MR SYME: Well, I can't comment on that.

PN437

THE COMMISSIONER: Well, I'm just asking because I thought - the question has been asked in previous disputes and I thought it was sometime off.

PN438

MR SYME: It is some time off, Commissioner. There's a whole range of issues that need to be satisfied before it starts. Whether - it will probably fall in towards the end of this agreement, I imagine. That's if everything - that's if the construction and the approval process - all the legal processes that are going on fall into place.

PN439

THE COMMISSIONER: All right. Well, on that particular issue, Mr Syme, can the - Mr Marshall, do you have the correspondence that Mr Syme is talking about?

PN440

MR MARSHALL: Not in front of me, but I have seen that correspondence and it's been highly inadequate and just repeats the clause 4.33.

PN441

THE COMMISSIONER: All right. Well, just for clarification, as I understand it, Mr Syme, you're not prepared to give any further undertaking. You're prepared to provide that correspondence to the Commission, is that correct, in relation to that issue?

PN442

MR SYME: Yes, Commissioner.

PN443

THE COMMISSIONER: And - - -

PN444

MR MARSHALL: If I could - if Wayne Flaherty - if he's on the line if he could make some comments as to his understanding of - - -

PN445

THE COMMISSIONER: I don't know that he's there. Is Mr Flaherty there?

PN446

MR FLAHERTY: Yes, Commissioner.

PN447

THE COMMISSIONER: All right.

PN448

MR FLAHERTY: Yes, we've been told along these lines, that we would be the ones to operate this.

PN449

THE COMMISSIONER: That you specifically would be one of the ones that are operating?

PN450

MR FLAHERTY: Yes. Well, the men that are already in those positions would be the people to operate and also carry on the duties in the - when this plant comes to line. And we have on several occasions asked management to put this on paper so that we could have some security of our future employment but up until now they have failed to do so.

PN451

MR SYME: Was that done prior to - was that conversation prior to the vote or after the vote?

PN452

MR FLAHERTY: That was prior to the vote, Mr Syme. There was several occasions there on different meetings where men had this explained to them; the company would not at any time be prepared to put it down on paper for them.

PN453

MR SYME: I would doubt very much where a manager gave a commitment to a particular person that they were going to be employed in a particular role in a project that's some years off.

PN454

MR FLAHERTY: Well, that's - that's not a problem of ours, Mr Syme. Like, management, if they were not aware of this or so certain of it why mention that in front of these men. Now, there were several men sitting in the room at the time when this was discussed.

PN455

MR SYME: Now, I would put it to you that what the manager said was that our employees would be used to man that plant in conjunction with clause 4.33.

PN456

MR MARSHALL: But he's told specific people - was Mr Syme present at these meetings that he's making - that he's making statements about?

PN457

THE COMMISSIONER: Well, I think the best course of action is, Mr Syme, if you send to the Commission the correspondence. I understand your position. And you think, Mr Marshall, that the certification of this particular agreement should be prevented because of the lack of clarification or undertaking on that issue.

PN458

MR MARSHALL: I'm making the point very clearly, Commissioner, that my members are only - were very clear that they had to have that guarantee before they would vote on the agreement. Those undertakings were given to the satisfaction of my members, as Mr Flaherty has just pointed out, and now the company are backing away from them, as they always do. They will say something. They will dangle a little carrot - - -

PN459

THE COMMISSIONER: Well, the difficulty is, Mr Marshall, in terms of conducting business this way, if there's no written confirmation and if the guarantee is not in a provision of the agreement, you know, it's difficult then for the Commission to assess.

PN460

MR MARSHALL: But, as I say, Commissioner, we will need to provide affidavit evidence and have it tested at a hearing in Ballina.

PN461

MR SYME: Obviously Mr Marshall is keen to jeopardise the certification of this agreement, Commissioner. That's what I would put to you.

PN462

MR MARSHALL: I'm keen to ensure the employment security of my members under this certified agreement.

PN463

THE COMMISSIONER: All right. Well, I've heard enough on that particular provision. I will assess the correspondence and I will assess that particular issue and the matter will be either provided with reasons or reconvening of that particular issue as to how it will be dealt with. What is the next issue, Mr Syme?

PN464

MR MARSHALL: ..... affidavits.

PN465

THE COMMISSIONER: Well, I'm going to look at the correspondence first of all and look at that particular provision in detail, Mr Marshall. What is the next issue, Mr Syme?

PN466

MR MARSHALL: Commissioner, I would then be filing affidavits. I can't see what else I can do. If the company is denying those undertakings were given I must file affidavits to support the evidence I've given.

PN467

THE COMMISSIONER: Well, perhaps you might file a submission as to why the agreement should not be certified in relation to that particular issue first of all, Mr Marshall. I mean, what you've got to do is - in terms of preventing the certification of an agreement as to why the particular provision makes the agreement - that provision makes the agreement objectionable or prevents it from being certified.

PN468

MR MARSHALL: Well, if that's the direction you've given me that's what I will do.

PN469

THE COMMISSIONER: What I want to do is hear on these particular issues, examine all of them as to where we're going to head on this particular matter from there. I don't want to deal with this particular matter in isolation at this point, Mr Marshall. All right? What is the next issue, Mr Syme?

PN470

MR SYME: I understand it was 7.61 in regards to the grievance dispute procedure, which is clause 8. And I understand the questions or the clarification regards the step five, where the above matter was to be either advised to an agreed Private Arbitrator or the Australian Industrial Relations Commission for either conciliation and/or arbitration under sections listed there. I understand there was some clarification sought in regards to that.

PN471

THE COMMISSIONER: Yes. Was this issue raised and explanation an provided? Or was it queried at all during the process with the delegates?

PN472

MR MARSHALL: Well, Commissioner, if I can explain from the CFMEU perspective, recently in a hearing Mr Syme disputed or said he would need to take advice of what arbitration under this agreement meant and from my understanding it's pretty clear, ie, the Commission determines that - - -

PN473

THE COMMISSIONER: But, Mr Marshall, that particular - I understand your submissions. We, as recently as yesterday, heard them and I gave some confirmation on those. At that stage this agreement - I wanted to hear what the parties had to say on this particular agreement. However, this particular issue in terms of the disputes procedure has had - over the last 12 months there's been agitation by the CFMEU in relation to that particular provision. On a number of occasions I have said it should be part of the negotiations and you've confirmed that it will be looked at during negotiations. So why now at the time of certification are you taking issue with the provision in the agreement?

PN474

MR MARSHALL: Well, because, Commissioner, as I explained before, as to the promulgation and the final form of the agreement that was put up for a ballot there was no negotiation.

PN475

THE COMMISSIONER: But Mr Noel was in those meetings.

PN476

MR MARSHALL: There were meetings that took place some time before. In essence, the agreement that has been presented to you was the agreement that was negotiated with the AWU and then dropped on the other three unions. That's what happened.

PN477

THE COMMISSIONER: But, as I understand it, what Mr Flaherty is saying is that there was discussions provided, explanations provided. They queried things and sought confirmation of things. Was that not the case with this particular provision as well?

PN478

MR SYME: Yes, of course that's correct, Commissioner.

PN479

MR MARSHALL: This wasn't negotiation. Those were questions asked during the information meetings that the company held. Information meetings, by the way, that the CFMEU officials were not allowed to attend.

PN480

THE COMMISSIONER: Well, did your delegates indicate to you that they had difficulties with the particular provisions of 7.6.1 and ask for clarification from the co-operative?

PN481

MR MARSHALL: As it states, Commissioner, it is an issue with regards to the arbitration which has only recently arisen and I really wanted to get an understanding from Bill Syme as to what he thought that meant - arbitration in the Industrial Relations Commission. I mean, I understand what it means, but I don't - but certainly, from what he said, I don't think he is clear.

PN482

THE COMMISSIONER: Well, Mr Marshall, the difficulty I have is that at a certification hearing you are now raising dispute with a series of provisions that are not - I can understanding if it is a new wording of an agreement, but these have been issues in dispute for some time which the union had confirmed that they were going to look at prior to the agreement being formed again.

PN483

MR MARSHALL: But, Commissioner, I make the point again, as to the form of this agreement, there was no negotiations. It was presented to ballot and it was balloted. The agreement was - - -

PN484

THE COMMISSIONER: So you are saying there was no meetings with the single bargaining unit?

PN485

MR MARSHALL: No. I am saying that after the company had the ballot with the AWU on the AWU-only agreement, there were no further meetings with a single bargaining unit. Dennis Noel can hopefully confirm this.

PN486

THE COMMISSIONER: So Mr Syme makes reference to these eight meetings or nine meetings that went for eight hours each.

PN487

MR MARSHALL: May Dennis can assist us as secretary of the SBU, Commissioner.

PN488

MR NOEL: Those issues weren't raised because they come up after the SBU had met. This is the first time I've heard of these issues. We hadn't raised them before.

PN489

THE COMMISSIONER: But, Mr Noel, you were, from memory, part of those conferences previously.

PN490

MR NOEL: No, I wasn't, Commissioner. I am an AMWU member. I am not a CFMEU member.

PN491

THE COMMISSIONER: Well, my recollection serves me that there has been difficulties with a series of these provisions. You might be right in that, Mr Noel. I might be thinking of Mr Mulcahy.

PN492

MR NOEL: I think you are, Commissioner, because I wasn't at any hearings where this was raised or - - -

PN493

MR ALEXANDER: If I may make a comment there.

PN494

THE COMMISSIONER: Just wait till I ask Mr Noel: at the single bargaining unit, were there issues raised for discussion in relation to this agreement because my understanding is that the course of negotiations that was in the last certified agreement is that the agreement would be negotiated through the single bargaining unit. Is that correct?

PN495

MR NOEL: That's correct, Commissioner, and we got it down to 11 negotiating subjects and the final outcome was the company wouldn't negotiate and we went to the vote. After eight meetings, we didn't negotiate an article that we could put in this agreement. So we went to a vote with no negotiations as the other unions have stipulated.

PN496

MR SYME: I think Mr Noel is referring to articles that are negotiated rather than agreed to. If you look at the change that we are talking about this morning, co-generation clause, periods of leave clause, bargaining units, all those were negotiated. I wouldn't say they were all - - -

PN497

MR NOEL: They might have been negotiated with the AWU. They weren't negotiated with the single bargaining unit.

PN498

MR SYME: They were all put on the table at the those meetings.

PN499

MR NOEL: At the AWU meetings, not with us. We did not agree to any of those. You know that for a fact. The leave and all that was not agreed to by us.

PN500

MR SYME: No, you weren't ..... agreed to them. That's right. We put them out in a proposed agreement which was voted by valid majority of the workforce.

PN501

THE COMMISSIONER: Well, Mr Noel, as I understand from the statutory declaration, there were members of the unions involved in assessing with the co-operative the valid majority. Were you involved in that?

PN502

MR NOEL: Repeat that?

PN503

THE COMMISSIONER: Were you involved in checking the results of the secret ballot?

PN504

MR NOEL: Yes, Commissioner, that is true. We are not disputing that those figures that the company are quoting at the end of the vote are correct.

PN505

THE COMMISSIONER: All right. So in relation to that particular issue on the grievance dispute procedure, Mr Syme, Mr Marshall has asked for undertakings. What is your position in relation to that?

PN506

MR SYME: Well, my understanding is that that clause is as read. It is referred to - for conciliation and/or arbitration in compliance with those sections, Commissioner, 111AA and 170LW. Those sections give the Commission certain jurisdiction to arbitrate for particular matters that run through the application of the agreement.

PN507

THE COMMISSIONER: So it is your position in relation - your clarification is that they go to - the jurisdiction of the Commission in relation to those goes to, for example, section 111AA, the position of the Commission being able to arbitrate is influenced by the wording of that particular provision?

PN508

MR SYME: I am saying that the ability of the Commission to arbitrate is going to be determined by section 170LW and section 111AA.

PN509

THE COMMISSIONER: So, for example, under section 111AA, recommendations by consent:

PN510

If the Commission is exercising powers of conciliation in relation to a particular matter and all the parties ...(reads)... the Commission must conduct a hearing and make recommendations about those aspects of the matter.

PN511

That is what you are agreeing to?

PN512

MR SYME: Yes, that's correct.

PN513

THE COMMISSIONER: All right. Mr Marshall, that seems fairly clear?

PN514

MR MARSHALL: Yes, okay, Commissioner. Well, that sounds fine to me.

PN515

THE COMMISSIONER: All right. So it is governed by, if, in fact, a dispute arises in relation to those provisions, the jurisdiction that is provided by this particular agreement is that that is provided under section 170LW which I don't think I need to read out again, do I, to the parties who are all familiar with that, and section 111AA?

PN516

MR SYME: Correct.

PN517

MR MARSHALL: Yes.

PN518

THE COMMISSIONER: And if there is a dispute in relation to the matter in terms of the jurisdiction of the Commission, it will be assessed at the time of that dispute in relation to those provisions as are set out in the clause of the agreement.

PN519

MR SYME: That is what I understand, yes.

PN520

THE COMMISSIONER: Mr Marshall?

PN521

MR MARSHALL: Yes.

PN522

THE COMMISSIONER: All right. What is the next issue?

PN523

MR SYME: That was it, as far as that was concerned, Commissioner.

PN524

MR ALEXANDER: He hasn't commented on Mr Morrison's issues in relation to 4.1, the two bargaining groups, and how they are going to operate effectively when we have had a single bargaining unit operating for the past agreement and now we seem to have two.

PN525

THE COMMISSIONER: That's right. You might have overlooked that one, Mr Syme?

PN526

MR SYME: I did, Commissioner, yes. Commissioner, the history of this negotiations were that we commenced negotiations with a single bargaining unit. The AWU made a decision that they no longer wished to participate in that bargaining unit and wished to have a separate bargaining unit. We continued the negotiations, meeting with both. We met with the AWU as a bargaining unit and we met with the three other units as a bargaining unit and hoped to get to some resolved position.

PN527

Now, given that, that is reflected in this agreement, that currently, or at the end of the negotiations for this agreement, that what we have ended up with is bargaining units where the AWU have asked it be recognised that they want a separate bargaining unit. No other union has said that they want a separate bargaining unit but the AWU have, and we have agreed to that.

PN528

THE COMMISSIONER: Right. I think, in fairness, Mr Morrison was keen to work out the relationship as to how those bargaining units would work in practice, and also the relationship to the peak bargaining body.

PN529

MR SYME: Yes. Well, the situation is, as we understand it, that if we are going to negotiate a particular aspect in regard to the next agreement, that, according to this document, we will be meeting with - or we will recognise the AWU have a separate bargaining unit. When we meet as a peak negotiating committee, that will involve all the bargaining units and co-operative management representatives, with the assistance of the AIG where required.

PN530

MR NOEL: So what you are saying, Bill, is the peak negotiating committee will be with all unions combined. It won't be with the AWU on their own or the other three unions on their own. It will be a combined peak negotiating committee?

PN531

MR SYME: That is correct. It says "consists of the bargaining units".

PN532

MR NOEL: Right. So that will be on transcript that that is what you have agreed to?

PN533

THE COMMISSIONER: Well, Mr Syme, just for the transcript, if you can just re-state how you see the bargaining units working. I know that you have done - provided some history as to that. Just so - because Mr Morrison, as I understand, will be assessing that particular transcript on that issue.

PN534

MR SYME: Right. My understanding is that, currently, we recognise that the AWU have a separate bargaining unit to the other unions and we will be meeting with them separately, unless there is a decision by the unions that they wish to participate otherwise that is acceptable to us. When the peak negotiating committee meet, it will consist of the bargaining pool and, hence, we'll be meeting with - - -

PN535

THE COMMISSIONER: Just for the transcript, I think you fell out there. When the peak negotiating committee meet - I think the line just dropped out a little bit, Mr Syme.

PN536

MR SYME: Okay. When the peak negotiating committee meet, I would expect that we will be meeting with the bargaining unit that contains the AWU and the bargaining unit that contains the other unions at that meeting. So, in essence, we will have a meeting where all four unions will participate.

PN537

THE COMMISSIONER: So if it is, in fact, an issue that needs to be negotiated, that is, relevant to a single union, then that will be done with that particular union. If it is the negotiation of the joint issue, it will be done through the peak negotiating body. Is that correct? Have I summarised that correctly or not, Mr Syme?

PN538

MR SYME: I don't think you could preclude - I don't think you could preclude management meeting with a bargaining unit. I suppose I am trying to make that clear.

PN539

MR NOEL: But you are saying that a peak negotiating committee will combine with all unions; that is what you said, Bill, a peak negotiating committee will be all unions combined.

PN540

MR SYME: Well, I am going from the reading of the document; it says it will consist of the .....

PN541

MR NOEL: What we are worried about, Bill, just take us through a scenario - - -

PN542

THE COMMISSIONER: Mr Noel, just a minute, just a minute.

PN543

MR NOEL: If I may, Commissioner, can I just ask a question?

PN544

THE COMMISSIONER: No. I just want to get the particular provision. Where is the actual provision that you are referring to? Where is the clause number, Mr Syme?

PN545

MR SYME: Page - - -

PN546

THE COMMISSIONER: Page - sorry?

PN547

MR SYME: I think it is at 69.

PN548

MR ALEXANDER: 6 of 69.

PN549

THE COMMISSIONER: 6 of 69, thank you.

PN550

MR ALEXANDER: Commissioner, it is Alexander, CEPU, and this really goes to the point of the co-generation; who is the company - if the co-generation comes into place during the life of this agreement, who is the company going to be negotiating with? If the company is going to negotiate with the four unions at a peak committee, that is great, but if they are only going to negotiate with one of the business units, there are some real concerns, you know, which is why we need to know how that - - -

PN551

THE COMMISSIONER: I mean, this is an issue, as the AMWU have introduced, Mr Syme, that would have to be assessed against the section 170LU(2)(a), whether there would be potentially some discrimination inherent in that particular provision. I am simply raising that, I am not making a determination that it is, but that is why I am just interested as I suppose Mr Alexander and Mr Morrison were, as to how the particular provision is going to operate.

PN552

MR SYME: Now, I am having a little bit of problem hearing you. I think I have got - - -

PN553

THE COMMISSIONER: I think the line is deteriorating, actually.

PN554

MR SYME: We seem to be getting cutting in and cutting out.

PN555

THE COMMISSIONER: Yes. Well, Mr Syme, do you wish to respond at this point in relation to how the peak body and the single bargaining units are going to interrelate and operate, or do you wish to do that in writing?

PN556

MR SYME: I can make some comment. Commissioner, the co-operative have no intention to not meet with the combined unions but if you have one bargaining unit that refuses to meet with another bargaining unit then the company is going to meet with both parties to negotiate issues.

PN557

THE COMMISSIONER: Well, there may not be in practice any difficulty with that as long as the Co-operative manages that in a fair way so that there is no discrimination. And I am just raising this in terms of how that provision would operate; no discrimination against one particular bargaining unit because of their union affiliation or the focus they have in the particular workforce.

PN558

MR SYME: No, we have no intention of doing that, Commissioner. In the last negotiation we had about meeting with the Australian Workers Union bargaining unit if you like, and we had about nine meetings with the other bargaining unit, so I don't think that there is any intention to discriminate between those units. Both people represent - both units represent about 50 per cent of the workforce so we certainly won't be discriminating against either group, and we understand our obligations under the legislation.

PN559

THE COMMISSIONER: All right.

PN560

MR NOEL: Can I just comment, Commissioner?

PN561

THE COMMISSIONER: Well, just a minute. Mr Alexander raised the relevant circumstance of the introduction of co-generation, so how would you - are you prepared to indicate how you would intend to have discussions with the relevant parties about that issue, because that would be an issue, as I understand it, Mr Syme - I may be wrong, but as I understand it, it would affect the whole workforce.

PN562

MR MARSHALL: Yes, I understand it would. Commissioner, I really want to make comment on what Mr Syme has said about meetings with the single bargaining unit and the AWU bargaining unit. All the meetings of the AWU bargaining unit took place after they had ceased dealing with the other three unions in their single - or in what was the original single bargaining unit, and that point needs to be made clear. The negotiations substantially over the formation of the ..... took place only with the AWU, and not the other three unions. Now, I ..... specifically what Mr Alexander is putting up as his concern as to what would happen over co-generation next time around.

PN563

THE COMMISSIONER: Well, I asked the question of Mr Syme, but you jumped in, Mr Marshall. Are you able to indicate, Mr Syme, how those - in relation to an issue like that, how the single bargaining units would work?

PN564

MR SYME: Well, Commissioner, from a practical point of view I think the co-operative would have a preference to meet with all four unions at one point in time. But if the negotiations happen as with this certified agreement, and unions have a falling out and decide they want separate negotiating unit, then the company will naturally negotiate ..... with two separate groups, or three separate - or four separate groups.

PN565

THE COMMISSIONER: But you acknowledge there is an obligation in terms of fairness in negotiations between all of those interested parties.

PN566

MR SYME: Yes, we - yes, I do agree that there is an obligation, particularly in - this refers to enterprise bargaining agreement, yes, there is an obligation to meet with the three - the four - sorry, the three union parties that - - -

PN567

MR NOEL: Commissioner, it is Dennis Noel here, can I ask a question?

PN568

THE COMMISSIONER: Yes.

PN569

MR NOEL: About this bargaining unit?

PN570

THE COMMISSIONER: Yes. Yes?

PN571

MR NOEL: Commissioner, right at this spot in time we are conceding that the AWU has 50 per cent; that is not always the case. Every year it varies. We could end up with the other three unions having the majority. What I am asking is with two units bargaining, if one unit - say the AWU - doesn't get a full 100 per cent vote, then 30 per cent of the workforce could be agreeing to something that 70 per cent of the workforce is disagreeing to, just on the numbers alone. I find it outstanding that, you know, I understand where the AWU is coming from with their 50 per cent majority right at the moment, but that is not always the case. Two years ago they weren't the 50 per cent.

PN572

THE COMMISSIONER: But Mr Noel, isn't it the case that it would have to be put to the vote if you are referring to the certification - - -

PN573

MR NOEL: That is what we are asking Mr Syme; does it go back to a total vote, or does it go to a unit vote?

PN574

THE COMMISSIONER: Well, if it is a certification of an agreement, it has to go to the vote of those that are going to be covered by the agreement, just as this one was.

PN575

MR NOEL: But what about the negotiation side of it, Commissioner?

PN576

THE COMMISSIONER: Well, as I understand it, there was negotiations, even in the current circumstances with the single bargaining unit, as you set out.

PN577

MR NOEL: Correct.

PN578

THE COMMISSIONER: There was negotiation; is that correct? You couldn't reach agreement on all of the provisions, but there was negotiation.

PN579

MR ALEXANDER: Alexander; that is certainly correct, we couldn't reach agreement, and the negotiations were cut off and taken to a secret ballot.

PN580

THE COMMISSIONER: And after that there was a valid majority, Mr Alexander, that voted in favour of the agreement.

PN581

MR ALEXANDER: That is correct, yes.

PN582

THE COMMISSIONER: Well, I will have a look at that particular provision. If any of the parties want to put to me whereby they think that the issues or the way the explanation that Mr Syme has provided in relation to the practice or the manner in which those bargaining units of the peak body is going to operate will contravene section 170LU(2)(a), so it is going to be objectionable or discriminatory, I will certainly consider that. Or if you wish to have the matter reconvened to provide any further material, you are at liberty to do that.

PN583

Certainly, I suppose there is - as you noted, a grievance procedure in this particular agreement, so if in fact an issue arises whereby they want - the actions of the Co-operative are seen to be discriminatory in terms of how in practice the bargaining units do operate, or how a particular issue has been dealt with, the parties are able to put the issue in dispute.

PN584

MR NOEL: That is what we are asking for, Commissioner. This is Dennis Noel here.

PN585

THE COMMISSIONER: But that is what you have got, Mr Noel, you have already got that.

PN586

MR NOEL: But that is what I am saying; the metal workers have voted to accept this document and have it certified. What we were just asking is that some of the operational problems that we have encountered because of this document, not to stop the certification, but to have clarification.

PN587

THE COMMISSIONER: Well, I mean, the difficulty is that there is only so far that I can expect the Co-operative to clarify. I mean, particularly in relation to a complicated issue like co-generation, which as I understand it, there is a series of - I am not wanting to be negative about the introduction of that at all - but I understand Mr Syme - there is a series of things that will have to be assessed by the management of the Co-operative to allow for the introduction of that, and a series of discussions that will have to take place with the workforce.

PN588

So you know, it is a tall order to ask Mr Syme how in fact those negotiations will be undertaken. But that, I suppose, is an issue that if the unions consider that the manner in which the single bargaining units or the peak body - if it operates at the time - to provide some discrimination against one of the parties, it is an issue that you would perhaps put into dispute. I am not encouraging that, but you have a mechanism in your agreement.

PN589

MR ALEXANDER: Alexander, the CEPU.

PN590

THE COMMISSIONER: Yes.

PN591

MR ALEXANDER: Commissioner, the unions understand we have got a dispute settling procedure in the agreement, but as Mr Marshall was saying about the status quo, that always becomes an issue in relation to where it is at a point in time when the dispute has arisen. And that is just one of the issues in relation to status quo. In respect to what the bargaining unit - the comments that have been made - is that peak negotiating committees is going to mean that the four unions are going to be meeting together as a peak negotiating committee, that is certainly an understanding and accept as what Mr Syme says in relation to that. So you know, the other issues that have been clarified, you know, if they meet the requirements of the three unions, the CFMEU, the CEPU, and the AMWU - and I know Mr Morrison will be assessing the transcript - you know, we can go from that position on that assessment of those transcripts.

PN592

THE COMMISSIONER: All right. Well, just generally, then, there are a couple of issues. The court reporter has kindly indicated they have checked and they think that the transcript on an urgent order will be done late in the day tomorrow. As I understand it, my associate requires the parties to email her if you are wanting transcript, so if all of the parties can indicate that email and then it will be activated back to you by email.

PN593

I will allow all of the parties to assess that particular transcript, and, if, in fact, they require to put further information before me in relation to the issues, just on assessing that particular transcript, they should indicate to my associate. Further to that, while I will do is assess the particular matters, and if I consider that the agreement, as it stands, can be certified, I will, subject to receiving all of the original documents, I will indicate that I intend to do that for the parties. Alternatively, if I think that there are barriers to certification, I will reconvene this particular hearing, indicate what they are, and I will then seek some directions - some information from the parties as to how those particular matters need to proceed, and directions will be set, and I would be looking that the parties could come to me after assessing the transcript - that would be Wednesday afternoon - by Friday of this week, and hopefully once we have received all the originals, it would be some time early next week that I would provide an answer to them as well.

PN594

MR TRIPODI: Commissioner, it is Mr Tripodi. I was just wondering - you said that you would consider all the matters subject to also receiving the original documents.

PN595

THE COMMISSIONER: Yes.

PN596

MR TRIPODI: I would just ask you put some time limit upon receiving those originals.

PN597

THE COMMISSIONER: Oh, I wouldn't worry, Mr Tripodi. My associate will be on the phone to - I would expect them by close of business this week, but she will be on the phone advising which parties have got outstanding documents, and they will be followed up, but the certification will be dependent on receiving those, so if, in fact, the documents are outstanding after the end of this Friday, all of the parties will be advised as to who has originals outstanding. I wouldn't have thought that this document simply should - the certification should be upheld by the tardiness in relation to the supplying of those documents.

PN598

MR TRIPODI: Okay, thank you, Commissioner.

PN599

THE COMMISSIONER: I don't think it is an enormous issue now, Mr Tripodi, because, as you have ascertained at the beginning, we now have confirmation that all of the parties, even if it is only in faxed form, have signed and prepared statutory declarations, but we've get to sight the CFMEU's statutory declarations in any sort of form, although, Mr Marshall, I know you have given your confirmation that that has been dealt with, and it is really just the originals converted to originals, and I think that, considering the parties are in New South Wales, that they will arrive during the mail within a short timeframe.

PN600

MR TRIPODI: Thank you, Commissioner.

PN601

THE COMMISSIONER: All right. Is there any further concerns to be raised at this time prior to adjourning?

PN602

MR SYME: Commissioner, just a short statement. I would put to the Commission that you consider Munro Js decision in C number 2044 of 2000 when you are giving consideration to certification.

PN603

THE COMMISSIONER: C2044 of 2000?

PN604

MR SYME: Sorry, no C number 2044.

PN605

THE COMMISSIONER: C2044?

PN606

MR SYME: No, 2044.

PN607

THE COMMISSIONER: Have you got the print number there, Mr - is there a print number on it?

PN608

MR SYME: Yes. It is S2830, December 18000 in print S3474.

PN609

THE COMMISSIONER: So there is two print numbers, you are saying?

PN610

MR SYME: Yes, looks like there is.

PN611

THE COMMISSIONER: Right. The first one was S2830 and the second one is S?

PN612

MR SYME: 3474.

PN613

THE COMMISSIONER: And in what particular respect are you wanting me to give consideration to that?

PN614

MR SYME: Well, the decision by Munro J where he considered matters that, I think, are fairly on point what has been put to you this morning.

PN615

THE COMMISSIONER: Who were the parties to that?

PN616

MR SYME: Okay, it's ..... Australia.

PN617

THE COMMISSIONER: I'm sorry, you are dropping out, Mr Syme.

PN618

MR SYME: Yes, I know, it is a really bad line.

PN619

THE COMMISSIONER: Yes. Just say it one more time. I think we are near to the end.

PN620

MR SYME: It is Stork - - -

PN621

THE COMMISSIONER: Oh, yes, the Stork decision. Yes, okay. All right. Anything - I don't want to cut your submission short there. I'm aware of the decision. What particular aspect?

PN622

MR SYME: Well ..... Commissioner, that some of the discussion we have had is fairly on point ..... that decision, and Munro J certified the agreement. I would say that it is very similar to what has been brought to you this morning, very similar circumstances.

PN623

THE COMMISSIONER: All right.

PN624

MR SYME: And we would be commending that you certify the agreement without haste, so that people can rest in peace for the Christmas break.

PN625

THE COMMISSIONER: Well, as I say, I will expect the originals to be in by Friday, and if parties provide an indication that they think, after assessing the transcript, there are significant things that they wish to put before the Commission for my consideration, I would hope to come back by early next week in relation to whether the matter can be certified or if, in fact, there are issues that will prevent certification, and they will be dealt with by reconvening the matter then, if that is necessary. There is an understanding then, of what is to proceed?

PN626

MR TRIPODI: Yes.

PN627

MR SYME: Yes, Commissioner.

PN628

THE COMMISSIONER: All right. On that basis, we will adjourn. Thank you.

ADJOURNED ACCORDINGLY [11.45am]