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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N F5507
A 16.12.03
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
MUNRO J
C No 24806 of 1999
C2003/5980
APPLICATION UNDER SECTION 118A
BY FORSTAFF PTY LTD FOR AN ORDER
THAT THE ALAEA HAVE THE RIGHT TO
THE EXCLUSION OF THE AFMEPKIU TO
REPRESENT THE INDUSTRIAL INTERESTS
OF THE EMPLOYEES OF FORSTAFF PTY
LTD WHO PERFORM HEAVY MAINTENANCE
WORK ON AIRCRAFT AT AVALON, VICTORIA
APPLICATION UNDER SECTION 133
RAO SCHEDULE RESTORING THE AMWU
FULL REPRESENTATIONAL RIGHTS IN
RESPECT OF EMPLOYEES EMPLOYED BY
FORSTAFF PTY LTD WHO PERFORM
REFURBISHMENT, RECONFIGURATION
OR HEAVY MAINTENANCE WORK ON
AIRCRAFT AT AVALON AIRPORT
MELBOURNE
9.30 AM, FRIDAY, 28 NOVEMBER 2003
Continued from 27.11.03
PN887
HIS HONOUR: Ms McKenzie.
PN888
MS McKENZIE: Your Honour, the parties have agreed that it is now a convenient time to call Mr Douglas Townley.
PN889
HIS HONOUR: Yes.
PN890
MS McKENZIE: Sort of interposing him between the other ALAEA witnesses.
PN891
HIS HONOUR: Yes. Could I indicate I need to vary slightly the - or not slightly, perhaps substantially the arrangements I made yesterday. It is 9.30 till 12.30 we will sit, but I am on a 4.30 flight. I have an engagement in Sydney this evening. I am prepared to sit to have limited lunch time to half an hour, 12.30 till one. If that is convenient to you, in which case we will sit from one till three, or alternatively if those times aren't satisfactory to complete it, I will be available on 18 December in Melbourne.
PN892
MS McKENZIE: I take it from that that I can safely change my flight to a 4.30 flight to Sydney too.
PN893
HIS HONOUR: Yes.
PN894
MS McKENZIE: That is convenient to me, your Honour.
PN895
HIS HONOUR: So there is that employer of the year or some function. I had overlooked that I had accepted going to it. Employee of the year, isn't it? Mr Bracks extraordinarily long presentation.
PN896
PN897
MS McKENZIE: Your full name is Douglas Warrington Townley?---That is correct.
PN898
And Mr Townley, you are the Group General Manager of Forstaff Aviation?---I am.
PN899
Yes. And that is the division of Forstaff Australia Pty Ltd?---Yes, it is.
PN900
Mr Townley, have you prepared a statement of the evidence you wish to give in these proceedings?---Yes, I have.
PN901
Do you have a copy of that statement with you?---I do.
PN902
And do you say that the contents of that statement are to the best of your knowledge true and correct?---Yes.
PN903
Your Honour, I tender the statement which has been marked FORSTAFF1, and as I noted earlier, although the heading of the document is affidavit it is not sworn but Mr Townley has now adopted it under oath. I have no further questions of Mr Townley.
PN904
PN905
MR CHIN: Thank you, your Honour.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR CHIN
PN906
Mr Townley, can I ask you to refer to paragraph 10 of your statement. In that paragraph you refer to the defeat of the EBA Agreement on 7 to 8 August 2003 and you make the statement that this action caused significant difficulty and unnecessary unrest of the site. You then refer to the parties having to seek the Commission's guidance for the conduct of a further ballot. Can you tell the Commission what significant difficulty and unnecessary unrest it is that you refer to?---Predominantly because of the EBA not being voted successfully, it required a number of additional shift meetings and obviously a process whereby the entire workforce was removed from the jog on a number of occasions and obviously that caused a significant loss of production at times when there was a significant amount of work in the facility and particularly aircraft checks that were demanding in terms of we hadn't actually undertaken some of that work in the past. So it was the mailing time for the site anyway and that, if it were to be sort of quantified, would have been in excess of 1000 lost production hours, and that is obviously not including any management time that was involved in that process as well.
PN907
Over what period were those hours lost in your estimation?---Over a number of weeks where there were effectively two separate sessions where each shift was removed from production.
PN908
I see. In relation to paragraph 18 of your statement you there refer to the estimated total number of Forstaff employees that is employed full time as of 13 November 2003 as being 746. Does that figure remain current today?---That would have been correct as of 13 November. Since that time that number would have increased slightly.
PN909
And can you tell the Commission, does the company have any plans to recruit or employ more employees in the near future?---Yes, we do, significant numbers.
PN910
In what position is the company planning to recruit those staff?---We have a significant number of full time positions still available. It is our - our recruitment targets are in fact an additional 130 personnel by February of next year.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR CHIN
PN911
Are those aircraft maintenance positions?---Yes, they are.
PN912
Mr Townley, in paragraph 20 of your statement you refer to a discussion you had with Mr Oliver in relation to the EBA4 agreement, if I can refer to it that way, and you there state what Mr Oliver said to you about information about the validity of the agreement and getting legal advice about what we may do about it. What was your understanding of the intent of Mr Oliver's statement?---I understood him to mean that they were considering their options in respect to a legal challenge of the EBA in relation to its validity going forward. Obviously that raised concerns with us as to the stability on site.
PN913
What contribution in your estimation has the EBA made to the industrial stability on the Avalon site?---Well, significant. I mean any EBA process is difficult and obviously having just been through that process we were looking forward to a three year period of industrial stability. There were some particular aspects of this EBA which in fact provided greater stability than previous EBAs where because of the mechanism of the wages and allowances coming through from the Qantas increases we found ourselves in a constant state of negotiation as those additional changes came through to the various Qantas EBAs. This particular EBA provides greater stability because it actually sets a time each year where those negotiations will take place. So wages for example rolled through immediately and there is a further milestone each year where the rest of the EBA conditions are actually rolled through. So we don't find ourselves in the state of constant negotiations, so we had every right to expect a period of stability.
PN914
What concerns do you have, if any, in relation to any challenge to the current EBA, either legal or industrial?---Significant concerns obviously. We are in a position where we believe we have that stability achieved and the fact that even in this conversation and it could be some undertones of a possible challenge causes us significant concerns because clearly we have a very successful site at Avalon and I would hate to see that success undermined by a period of question over the industrial arrangements.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR CHIN
PN915
What concerns do you have specifically in relation to say the performance of work at the site?---I am sorry, you mean in terms of loss of production, or do you mean in terms of the industrial framework?
PN916
Well, both?---Okay. Well, certainly obviously any questions that are raised in relation to, if for example the EBA was challenged and found that there was some legal case that it wasn't an appropriate document, then obviously we would have to go through a process of negotiation again I presume with a party, or parties, and that would obviously cause significant loss of production again as those shift meetings and meeting with the employees were necessitated. In terms of the industrial framework, one of the fantastic arrangements we have at Avalon which keeps us competitive is the fact that we don't have demarcation issues. We have clear trade responsibilities and individuals are asked to work within the limits of their training and abilities and for us to lose that level of flexibility would be quite destructive.
PN917
In paragraph 21 you also referred to words of Mr Oliver proffering a willingness to enter into a certified agreement in the same terms as the EBA4, that is, presumably with the AMWU?---Yes.
PN918
Do you have any concerns if the AMWU were to seek to negotiate a new agreement with Forstaff?---The concerns I have are I guess twofold. One is that I just don't understand how an agreement can operate whilst we already have an agreement on site that all of the employees voted on, that all of the classifications are currently contained within. I am not sure how the mechanism would work and I understand that any new agreement would effectively be moot in that the terms of the original agreement would shine through anyway. So I don't understand how another agreement can operate within the nominal term of the first.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR CHIN
PN919
Do you have any concerns about the effect of any new agreement upon the performance of work by employees at the Avalon site?---Well, specifically I guess it raises more questions and answers for me in terms of - I mean whilst there may be a statement made that we are willing into a certified agreement in the same terms, that would entail some sort of bargaining period or bargaining I presume and I guess the question would be where does the line finish. I mean you can open up a discussion. I would envisage that there would be wanting to be some sort of changes to the document. So I guess the answer from my point of view is it raises more questions for us than answers in terms of the operation on site.
PN920
Forstaff would not be willing to strike a new agreement having regard to the existing EBA4?---No.
PN921
Is that the case?---That is correct.
PN922
That is, would not be willing to strike a new agreement with the AMWU?---Correct.
PN923
No further questions.
PN924
PN925
MR ADDISON: Yes, thanks, your Honour.
PN926
Mr Townley, you would accept, would you not, that the very nature of enterprise bargaining is a time consuming process?---Yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN927
And it requires management time and representatives time to sit and negotiate?---Yes.
PN928
There is a requirement in the Act that a valid majority of the employees in fact genuinely agree to the agreement, yes?---Yes.
PN929
And that in itself causes people to be off the job I guess, yes?---Yes.
PN930
Now, you have been the general manager since the beginning of this project?---I have.
PN931
So that was back in 1998?---Correct.
PN932
Have you been involved in other aspects of Forstaff's work during that time or just at the Avalon site?---I originally engaged as the general manager of engineering and that engineering division was to encompass at that time the newly one Qantas work. However, the reality of it was that the Qantas contract took up so much of my time that the engineering component was not part of my ..... if you like from first day.
PN933
Okay. So you are effectively an aviation industry person?---Correct.
PN934
You are not involved in the labour hire aspects of Forstaff's business?---I am not. I do sit on the executive committee for the main business, so obviously I have a role to play in that regard, but I don't have any day to day function in relation to the rest of the business.
PN935
Now, you say that - well, in fact you corrected that proposition. You have got slightly more than 746 employees on the site?---Yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN936
I mean have you any idea how many?---I haven't checked since that date so no, I would be guessing.
PN937
It would be less than 800, would it?---Yes.
PN938
And that workforce has grown as a result of Qantas maintenance coming into Avalon?---No, it has grown as a result of a number of factors. Most of the growth periods have in fact been aligned with commercial work that Qantas has placed in there rather than maintenance work.
PN939
Okay. So you do work for other clients?---No, no.
PN940
Just Qantas?---Yes.
PN941
And you expect that work to grow even further?---That is certainly our hope, yes.
PN942
Indeed. Now, I want to take you to first of all the end of your statement, to paragraph 24, where you talk about the ballot which occurred on the 9th and 10 October and then you make the assertion in paragraph 24:
PN943
Given these circumstances it is my view that the employees have not expressed a clear view that they wish to be represented by the AMWU and that there is no reasonable basis -
PN944
etcetera. Do you stand by that?---I do.
PN945
So do you say that your employees were not aware of the effect the ballot would have that they were involved on the 9th and 10 October?---Forstaff had the view that the question that was required in the ballot was really in two parts and as you are aware, these proceedings clarified that point in terms of the question to be asked.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN946
Yes?---It is our belief that the question did not ascertain the views of the workforce in relation to the AMWU.
PN947
Okay. Can I show you three documents and if you would just bear with me while I get them. Can I just ask you to have a look at those documents. Now, you have seen those documents before I presume?---I don't believe I have seen all these documents, no.
PN948
Okay. Well, if I tell you that all of those documents were circulated on your site prior to the ballot?---Yes.
PN949
You wouldn't disagree with that proposition, would you?---I don't dispute that.
PN950
No. And indeed they are from three of the interested organisations who were interested in the outcome of the ballot. You would agree with that too, wouldn't you?---Yes.
PN951
Your Honour, could I tender that?
PN952
HIS HONOUR: Yes, as a bundle?
PN953
PN954
MR ADDISON: I take you first of all to the ALAEA document. That advocates a vote yes to the question and the question being:
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN955
Do you approve of the ALAEA continuing for a further three years to be the single or primary union?
PN956
And that advocates a vote yes. The AMWU notice advocates a vote no and the AWU make the assertion that a vote no will ensure the AWU gets on at the site, it will end the ALAEAs monopoly on site and give workers a better deal. You agree with that, don't you?---I understand that is what it says, yes.
PN957
Yes. And the AMWU notice, which is the final one, seeks support for a no vote and makes it clear, does it not, that should a no vote be successful then AMWU members would be represented by the AMWU. That is what it says, doesn't it?---Having not had a chance to read it before, I guess - - -
PN958
Well, take your time, Doug?---I guess the summary there is vote no so all workers at Avalon can have a choice about their union.
PN959
Yes. If you go to the paragraph above that says:
PN960
We are not asking you to belong to the AMWU but simply to give us the opportunity to have our union represent us.
PN961
And that clearly states, at least in the opinion of the proud AMWU Avalon members who have authorised this document that the result of a no vote would be the AMWU being able to represent its members on the site?
PN962
MR CHIN: I object to the question, your Honour. Mr Addison puts it on the basis of an assertion and that is that there is some endorsement, or some authorship of the document which simply hasn't been founded on the evidence. The question put, as it were, proceeds upon an assumption for which there is no evidence and on that basis I object to the question.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN963
MR ADDISON: Your Honour, I say the document is clear on its face. The document is authorised by AMWU members, that is clear on the face of the document. The documents were circulated on the site. Mr Townley has not disagreed with that.
PN964
HIS HONOUR: What is the question you are putting, Mr - - -
PN965
MR ADDISON: I am simply saying that final paragraph in the substantive test clearly states should a no vote be endorsed then the AMWU, so far as the people who have drafted this document are concerned, would have access to the site.
PN966
HIS HONOUR: Yes, I will allow the question.
PN967
MR ADDISON: That is what it says, isn't it, Mr Townley?---That is what it says, yes.
PN968
Yes. Now, can I show you another document. Have you seen that document before?---No, I haven't.
PN969
It is dated 16 October 2003 and if I tell you it was distributed on your site on or about that date you wouldn't disagree with me, would you?---I would have no reason to.
PN970
And that document is effectively a letter of thanks from AMWU members to the rest of the workforce, isn't it?
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN971
MS McKENZIE: Your Honour, perhaps I should just rise at this stage to say that whilst the objection is not I suppose to a specific question but to Mr Addison's choice of getting this material in. He had Mr Oliver in the box as his own witness. He could have introduced this material. To put it to Mr Townley and ask questions as to whether he agrees with what the letter says as a basis of tendering it seems a little bit of a clumsy way to put in evidence. I don't object to it ultimately going in but I'm not sure of what the utility is of asking Mr Townley to agree with what the letters say or not say. If Mr Addison wants to tender the documents and put some submissions about them I am happy for him to do so without us going through the process of Mr Townley being asked these sorts of questions.
PN972
HIS HONOUR: It is a pretty tenuous connection with Mr Townley's knowledge, unless he has been collecting these documents for some ulterior purpose and he hasn't.
PN973
MR ADDISON: Yes. Well, I may ask Mr Kemp also.
PN974
HIS HONOUR: How many more are there?
PN975
MR ADDISON: I only have one more document that I wish to show to Mr Townley and it is actually - - -
PN976
HIS HONOUR: Well, the quicker it might be - Ms McKenzie has said, well, you can tender them if you want to and put submissions, but this witness really can't add anything through this evidence to them I don't think.
PN977
MR ADDISON: I will get to that final letter shortly, your Honour.
PN978
HIS HONOUR: Yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN979
MR ADDISON: I seek to tender that document, your Honour.
PN980
PN981
MR ADDISON: Now, Mr Townley, going back to your statement, which I have lost, and back to that paragraph we were talking about earlier, paragraph 24, you know, don't you, that there was a high degree of knowledge of what the ballot was about on the site by your employees?---I believe the employees understood the representational rights vote and that their choices were constrained to either voting for either ALAEA as the single primary union or voting for other unions on site.
PN982
That is right?---They did not have the opportunity to vote specifically for the AMWU.
PN983
That is right. They didn't vote specifically for the AWU either, did they?---No, they didn't.
PN984
Or for the NUW or CEPU for that matter?---No.
PN985
No. Now, they knew that a no vote would end a monopoly of the ALAEA, didn't they?---Yes.
PN986
And the vote was clearly a no vote. That is correct too, isn't it?---Well, I don't believe that assertion. I don't believe it was a clear outcome based on my statement.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN987
I am just trying to find the right part of your statement. You say in paragraph 13 that a no vote was carried. You say the vote was conducted as directed and they're the directions of his Honour?---Yes.
PN988
And the whole process was subject to directions from his Honour, do you agree?---Yes.
PN989
And it was conducted by the Industrial Registrar?---Yes, it was.
PN990
And the result of the vote was 274 nos and 243 yeses and two informal votes. That is what you say in paragraph 13?---That is correct.
PN991
That is a clear no vote, isn't it?---In terms of the assertion you are putting, yes.
PN992
Now, at paragraph 18 you refer to the 746 employees and that was as of 13 November, obviously not today?---Correct.
PN993
And you go on to talk about the percentages in terms of the vote. You say that the membership on the site is going by 46 per cent. You say that the vote represents now 37 per cent of the total workforce?---That is correct.
PN994
Now, by the same token, in terms of the endorsement of the enterprise bargaining agreement, if you go to paragraph 11, in paragraph 11 you say that on 8 and 9 September the agreement was successfully approved by a valid majority of employees who voted and you say 299 employees voted for the agreement. That is correct?---That is correct.
PN995
Now, I haven't done the maths, but 299 employees out of 746 to my mind represents something less than 40 per cent of your current workforce, do you agree?---No, I don't agree on the basis on 8 and 9 September there was not 746 employees.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN996
Yes, exactly. Nor was there when the ballot was conducted for the union representation rights, was there?---No, but that is a different point altogether. Those employees who have been brought onto the site since that time have all had access to the agreement as part of the recruitment process. So there is no comparison, I don't believe, in the two votes in terms of the percentages or the number of for and against votes.
[10.00am]
PN997
So you say to me that a vote of something less than 40 per cent of your current workforce endorsing an enterprise agreement is valid and should stand.
PN998
MS McKENZIE: I object to that question, your Honour. The Act says what it says about the making of certified agreements and the Act defines a valid majority. It is not for Mr Addison to ask Mr Townley about whether or not it is valid vote. There can be no question - or no issue has been raised in the AMWUs case in this matter, nor could it be, about the process of the making of a certified agreement, so I don't see what questioning Mr Townley about whether a valid majority of employees voted for the certified agreement, where that gets him. And it is not proper to ask Mr Townley matters which go to the application provisions of the Act.
PN999
MR ADDISON: That is not the intent of the question, your Honour. I am not questioning at all whether the certification process was properly completed or not.
PN1000
HIS HONOUR: The effect of the Act is what you are speaking of, isn't it? The agreement was approved when in September the body of employees to whom it applies may fluctuate over the life of the agreement.
PN1001
MR ADDISON: I entirely agree, your Honour. I am not taking any issue with that whatsoever.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1002
HIS HONOUR: Well, there is not much point in cross-examining Mr Townley about that.
PN1003
MR ADDISON: I am trying to understand Mr Townley's view with regard his percentages that he describes in paragraph 18.
PN1004
HIS HONOUR: So let us get down to the terms of that paragraph 18 I think rather than to contrasting the Act.
PN1005
MR ADDISON: Yes.
PN1006
Are you saying that you consider the ballot with regard to representational rights, not the EBA, to have been an invalid vote?---I am saying - no, I didn't say that. What I am saying is the vote was conducted within the terms as directed and as I agreed with you before, based on the numbers of return votes the ballot was returned as a no in respect to the question.
PN1007
Yes?---I don't dispute that. What I am making the point of is that the site is going through a significant period of growth. The effect of that vote needs to be taken into account in terms of number of employees that now exist on site and also in respect to at the time of the vote a number of employees who did not get an opportunity to vote despite being on site at the time and therefore the effect, if you like, in respect of it reflecting the wishes of the employees is what I am questioning.
PN1008
Well, it did express the wishes of your employees at that point in time, didn't it?---No, that is what I am suggesting I don't agree with.
PN1009
Was there any attempt by any party to prevent any eligible employee from voting?---No, no overt acts if that is what you alluding to.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1010
Yes, that is right?---No.
PN1011
And the directions set by Munro J were complied with by all the parties?---Yes.
PN1012
And the Industrial Registrar conducted the ballot?---Yes.
PN1013
So do you have any criticism of the process?---No.
PN1014
Now, you currently have - I withdraw that. You were aware that the AWU have members on site?---I am advised that they had members on site, yes.
PN1015
Yes. And you are aware that the AMWU have members on site?---Again I have been advised by the AMWU they have members on site.
PN1016
And obviously ALAEA have members on site?---Yes, they do.
PN1017
Yes. So you have currently three unions on site?---No. We currently have one union on site respondent to the enterprise agreement. I am not sure how many unions are alleged to have members on site, I don't know. There may be others.
PN1018
If I could put it to you in a better way. You are currently aware that three unions have members on site?---I am aware that a number of unions and I would say it is more than three would allege to have members on site.
PN1019
Yes, okay. Now, the AWU have access to the site?---The AWU have, since the conduct of the representational vote, have given notice under the Act for access to the site and on that basis Forstaff has granted access.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1020
And the AWU have raised issues of concern with the company?---No, we have not had any meetings with the AWU.
PN1021
The AWU haven't contacted you at all?---I have not had any meetings or any correspondence from the AWU in relation to issues in relation to their membership.
PN1022
You haven't had any correspondence or any meetings. Have you had any contact with the AWU about this?---I have spoken to Bill Shorten on one occasion and at no stage was there a discussion about issues in relation to membership.
PN1023
So would Mr Shorten, or whoever the appropriate official of the AWU, would he raise issues with you or with someone properly?---The question really has two answers. The individuals to be contacted would in fact be the site management team but the reality of it is if they have no representational rights with respect to the enterprise agreement then on that basis outside officials have not met with them.
PN1024
Sorry, say that again, I missed that?---They have no representation rights with respect to the enterprise on site and with that in mind our site management team have not met with them.
PN1025
Okay. However you have, and you say this in paragraph 23, you have allowed them on site and you have allowed them to discuss matters with employees who are members or eligible to be members of the AWU?---We have complied with the Act.
PN1026
Yes, indeed. Now, the AWU have also been afforded payroll deduction facilities by Forstaff, haven't they?---The AWU has had payroll deduction facilities with Forstaff for a number of years.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1027
And employees at Avalon pay their AWU membership dues through payroll deductions?---That option has been available to them, yes.
PN1028
So you are dealing with the AWU, aren't you?---In respect to your making that assertion, no. The fact is that Forstaff as an organisation allows payroll deductions for a number of unions. The AWU has had payroll deductions established with Forstaff because of our relationship on other sites and other issues. That benefit, if you like was accorded to them in response to that and they have had it for a number of years. No other reason. At that point when those deductions were made available to them the AWU had not even requested access to Avalon, so the two issues are not related.
PN1029
HIS HONOUR: Mr Townley, I missed perhaps your earlier answer. Were you saying that up until in relation to Avalon there has been any identifiable AWU representation at the site in relation to any of its members there?---In relation to the Avalon site, that is correct, your Honour. I might clarify that.
PN1030
There hasn't been or there?---There has not. I might clarify that by indicating there is a client of Forstaff's called Britex which also exists on the site of Avalon and they do work for Qantas and Forstaff did meet with the AWU some 12 months or so ago about representation rights on that particular site but we have never met with them or discussed the main hangars and they have never actually sought rights of access until after the vote.
PN1031
I see. And after the vote has there been any change in that position?---They have sought the access that I have indicated but we have not met with them or discussed issues.
PN1032
Okay.
PN1033
MR ADDISON: When you say we, you mean you or Forstaff management team?---When I say we I am talking globally about people within my division.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1034
Now, I take you to paragraph 20 of your statement. You indicate that you attended a meeting with Mr Oliver and myself. In fact there have been three meetings, haven't there?---I have had three meetings with Mr Oliver, yes.
PN1035
And at the first meeting with Mr Oliver you indicated that - sorry, that was some evidence yesterday. I don't think you were in the room yesterday, were you?---No.
PN1036
That meeting occurred in September, the first meeting?---Yes, that would be right.
PN1037
And that meeting was to discuss - well, first of all, that meeting was at the request of Mr Oliver?---Yes.
PN1038
Yes. And that meeting was to discuss the upcoming ballot, I think is probably the best way to describe it. Yes?---Yes.
PN1039
And at that meeting a whole range of discussions occurred about what the proposed question what might be, what the process might be, who was going to conduct the ballot, etcetera. Do you agree?---I agree.
PN1040
And in that meeting you on behalf on Forstaff indicated that whatever the result of the ballot Forstaff would respect the right of its employees to make that decision and would respect their wishes. Do you agree?---I made that under very specific circumstances and it was in relation to our understanding of how we would ask the question at the time and we have made this clear on a number of occasions since that time that the position we put was in relation to us having the belief that the employees would be able to indicate specifically whether they AMWU being on site at Avalon.
PN1041
Right. Now, that question that you proposed was not agreed to?---Yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1042
And the AMWU wrote to his Honour Munro J and sought some conciliation with regard to that matter?---Yes.
PN1043
And that conciliation occurred in Sydney?---It did.
PN1044
It did. And you met with Mr Oliver, Mr Cameron, the ALAEA and yourselves in a conference with Munro J?---Correct.
PN1045
During that conference an agreed process was reached?---It was.
PN1046
Now, you had a further meeting during the course of that morning, as I am instructed, in a coffee shop with Mr Cameron and Mr Oliver?---That meeting was actually prior to the mediation you previously referred to.
PN1047
And you indicated to Mr Oliver and Mr Cameron at that meeting that once again you would respect the wishes of your employees?---I say again, that was prior to us having an understanding that his Honour through the process you have just described would clarify the position in relation to the question. So at both of those meetings you referred to with Mr Oliver and Mr Cameron Forstaff were of the opinion that we were able to ask the question a specific way which identified the employees needs.
PN1048
Yes. And you knew that the AMWUs position when you had met with Mr Cameron and Mr Oliver, you knew that the AMWUs position was that the question should be effectively that which is contained in paragraph 6 of the order. That is, whether the ALAEA or its successor are continuing to be the single or primary union with rights to industrial representation at the Avalon Airport site to the exclusion of the AMWU. You knew that was our position, didn't you?---I knew that was the position you would put to the Commission that day but that had not yet been put.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1049
That is right. And you knew that the process of conciliation was a process to try and reach an agreement on the question and the process to be applied to the ballot, yes?---Yes.
PN1050
And once again even if with all that knowledge your position with Mr Cameron and Mr Oliver was we will respect the wishes of our employees. That is correct, isn't it?---That is correct.
PN1051
Yes, that is correct. And that was then followed up by a letter following the vote and I will just hand you a letter addressed to yourself, that is a letter dated 14 October 2003 from Dave Oliver to yourself, Mr Townley?---Yes.
PN1052
Do you recall getting that letter?---I do.
PN1053
PN1054
MR ADDISON: Now, the letter is, I put it to you, the letter is a conciliatory letter seeking to establish a proper and reasonable relationship with Forstaff, would you agree?---I think it is a professionally sound letter. I don't see it as anything else. I mean it is certainly not an offensive letter.
PN1055
No. It points to the commitments that you had given Mr Oliver in those two meetings in the last paragraph?---Right.
PN1056
That you would accept the outcome of the ballot?---It says that, yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1057
Yet you reneged on those commitments, didn't you?---No, I didn't. The fact that this letter contains that position is not surprising to me at all. I mean as I have said to you a number of times now, that position was put very specifically with a course of action in mind. The fact that that course of action did not come to fruition and it was changed through the process that you quite rightly point out, as is as we said to the Commission at the time, the very reason why we put the proposition that we would respect the employer's wishes is because we believed our process would identify what those wishes were. The fact that the process took another course of events, we don't dispute that process. That was the process put in place by his Honour and it was conducted in that way. But to suggest then that any undertakings given prior to that change in process or direction given in terms of process is fraudulent.
PN1058
Now, what I suggest to you and you have agreed to, I put to you, you have agreed to, is that in the meeting you had with Mr Oliver and Mr Cameron in Sydney you had the full knowledge of what the AMWUs position was going to be in front of his Honour, full knowledge of that, you knew the process was designed - the conciliation process that day, not the overall ballot process but you knew the process on the day was designed to reach an agreed outcome with regard to the question and the process and in the full knowledge of that you restated your commitment on behalf of Forstaff that you would abide by the wishes of your employees as expressed in the ballot.
PN1059
MS McKENZIE: Well, I object to the multiple questions in that question, your Honour.
PN1060
MR ADDISON: There is no multiple question, your Honour. I am simply recapping the evidence that has previously been given with regard to - - -
PN1061
HIS HONOUR: Well, I think Ms McKenzie is correct in that by your recapping you are asking for a assent to a series of propositions which you haven't put. At the end of it the witness doesn't want to have it all rolled up into one final question that can be yes or no because it must of necessity adopt all your recapping propositions.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1062
MR ADDISON: Yes.
PN1063
HIS HONOUR: That is the substance of Ms McKenzie's objection. One cap at a time.
PN1064
MR ADDISON: I am happy to do that. I thought I had been through that but I will happily to do that.
PN1065
MS McKENZIE: Well, your Honour, can I just maybe spare Mr Addison that? It seems to me that it is really ultimately a submission. Mr Townley has said what he says. The question seems to be seeking Mr Townley's best confirmation of what he has earlier said. The evidence will speak for itself. Mr Addison can make whatever submission he wants about the significance of what Mr Townley said but I don't think asking the questions - or putting the propositions to him is going to advance the evidentiary material any further.
PN1066
MR ADDISON: Well, I think it is important that we have this clear, your Honour, so I would seek to do that.
PN1067
HIS HONOUR: We will set out again and we will see how you go.
PN1068
MR ADDISON: Yes.
PN1069
When you met with Mr Cameron and Mr Oliver on that morning in Sydney you knew what the AMWU position was?---I had seen the application made by the AMWU, yes.
PN1070
And you knew that the AMWUs preferred question was effectively the question that flows out of paragraph 6 of the order of 5 January 2001?---I understand that.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1071
You knew that you were about to embark on a conciliation process?---I did.
PN1072
And you knew that the conciliation process had as its objects, one, the determination of the question. Yes?---Yes.
PN1073
You need to say yes or no. The transcript will not pick up a nod?---Yes.
PN1074
And you knew that further to that the conciliation process would have as an object the establishment of a process by which the employees would vote?---Yes.
PN1075
And in the full knowledge of that you once again gave the commitment to Mr Oliver and Mr Cameron that you would abide by the wishes of your employees as expressed in the ballot?---Yes. The position is simple. At that point where the meeting occurred between myself, Mr Cameron and Mr Oliver, it was equally possible that Forstaff's question, preferred question may have been acceptable to the Commission, and as you quite rightly pointed out, we were going into conciliation and conciliation does not necessitate that one party or the other gets to ask the question the way it preferred. The simple fact was that the AMWU made the application, so yes, I saw your question in writing. It is equally true the AMWU had seen the question that we proposed.
PN1076
Yes, I agree?---So I absolutely stand by what I said on that day because we still had an expectation and a hope that that was the question that would be asked in our terms.
PN1077
But you didn't qualify your proposition to Mr Oliver and Mr Cameron. You said, without qualification, Forstaff will abide by the wishes of its employees?---We were particularly confident. We thought, obviously clearly we were wrong in retrospect, but we had an understanding that the question was in two parts. It was clarified by his Honour very quickly that day.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1078
So what I am saying to you is an unqualified proposition that you would abide by employees wishes you reneged on.
PN1079
MS McKENZIE: I object to that, your Honour. I mean it has been asked before but I am just not sure where this is all going. Mr Cameron has given the answer and explanation several times now - Townley.
PN1080
HIS HONOUR: Yes.
PN1081
MS McKENZIE: Not Mr Cameron, Townley.
PN1082
HIS HONOUR: Mr Cameron is obviously on your mind, Ms McKenzie.
PN1083
MS McKENZIE: It might have helped if Mr Cameron has given it.
PN1084
MR ADDISON: I don't think Mr Townley has answered that question. I think Mr Townley went - nothing turns on it at this point in time. I will withdraw that.
PN1085
Now, can I take you to paragraph 20 of your witness statement again. The meeting that you describe is a meeting that took place on 11 November, is it not?---It is.
PN1086
It is. That is the meeting you are talking about?---Yes.
PN1087
Where Mr Oliver raised this proposition, that we have got some information about the validity of the agreement, correct?---Correct.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1088
That wasn't the first time that was raised with you, was it?---I don't recall it being raised before.
PN1089
Well, I put it to you, it was raised on 29 October in Sydney?---That may be true.
PN1090
I put it to you that at the conclusion, or during the adjournment, I can't remember which, but either during the adjournment or at the conclusion of the proceedings in Sydney in front of his Honour I put to you that we have some concerns about the veracity of the agreement. Do you recall that?---I do.
PN1091
You do. I said to you issues are being raised by some of your employees that cast a doubt on the validity of your agreement. You asked me what did I propose to do about it. Do you recall that?---I do now.
PN1092
And I said to you, "Well, nothing at this point in time, Doug, I am checking it out." Do you recall that?---Yes.
PN1093
So it is not as if the meeting on 11 October the proposition that Mr Oliver put to you came as it were out of the blue. It didn't, did it?---No, you have raised concerns about the validity of our agreement on several occasions. You are right.
PN1094
That is right. Now, there was no indication, I put it to you, from me on 29 October, or from Mr Oliver on 11 November of anything but we have concerns. That is correct, isn't it?---No, I wouldn't agree with that.
PN1095
You wouldn't agree with that?---No. Certainly at the meeting with Mr Oliver on the 11th I understood that there was - my interpretation of what he said was that you were exploring issues and options with respect to the EBA.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1096
Yes. But you knew I was - sorry. You knew on 29 October that concerns had been raised?---Yes, I agree with you. You did raise that on the day.
PN1097
Yes, that is right. And I didn't give you any impression at that point in time, did I, that we would seek to challenge the agreement at that point in time? I indicated that - - -?---No, you did not give me that impression.
PN1098
That is right. I certainly indicated that concerns had been raised and we were investigation. Yes I agree with that.
[10.25am]
PN1099
Have you seen AMWU2?---No, I don't recall what that is.
PN1100
Could the witness be shown AMWU2. I would like to take you to the second letter in the block which is a letter dated 17.9.2003 to Commissioner Eames and it is headed Re Avalon Forstaff EBA and in the substantive text, in the block in the middle if you like, there are some issues raised which talk about a substantial number of new starters joined the company within a few days of the vote taking place. People weren't informed about the agreements, that when issues were raised they were told to shut up by the ALAEA industrial officer, that some employees were new, they were not even on the vote register but their names were added at the time of the vote. Now, you would agree, would you not, that if these allegations are correct it would cast some doubt on the validity of the agreement, wouldn't it?
PN1101
MS McKENZIE: Well, I object to that question. That is a question going to the legal effect of the provisions of the Act and the legal effect of the agreement. I don't think Mr Townley can comment on whether issues go to the validity of an agreement or not. It is a question of law ultimately.
PN1102
MR ADDISON: I am happy to rephrase the question.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1103
You would agree that if these allegations are true and borne out they would raise doubt in the mind of people?
PN1104
MS McKENZIE: I object again to that. I am not sure how Mr Townley can comment on what is in the mind of other people.
PN1105
MR ADDISON: I think the question is a reasonable question, your Honour.
PN1106
HIS HONOUR: I will let Mr Townley have a go at it. You will sooner or later get something and then he can give his answer which I am sure he has thought about?---On a hypothetical basis, if there was legitimate evidence that the vote had been rigged in some way then, yes, I guess it would cause concern, but it is hypothetical.
PN1107
MR ADDISON: Well, yes. Now, I presume that your position as the general manager of Forstaff is that you want any of your industrial instruments to be unimpeachable?---Yes.
PN1108
I presume that you would want to comply with the requirements of the Act?---Correct.
PN1109
In terms of certification of your agreements, etcetera?---Correct.
PN1110
And I put it to you that in that meeting on 11 November with Mr Oliver, as well as raising this proposition that there was some information that we were checking out and we intend to get legal advice with regard, he also said to you we should be talking about this, didn't he?---I don't recall that, no.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1111
He put the invite out to you to have some discussions with regard to the agreement, with regard to possible joinder of the AMWU to the agreement. In fact you say. You say following that paragraph, paragraph 22, that Mr Oliver had said that the AMWU - - -?---He certainly did. He certainly discussed those things but I certainly have no recollection of him discussing or saying as you have indicated, that we should be talking about this being the issue under which you were investigating, which was the inference of your question.
PN1112
Yes, maybe I put that badly. Mr Oliver sought to have discussions with Forstaff with regard to the industrial issues on the site, didn't he?---Perhaps if I make the statement that I recall him saying that he wished to discuss the AMWU having some rights in relation to the enterprise agreement.
PN1113
Yes, yes?---As a general statement that was what was discussed.
PN1114
It also suggested that it was possible for Forstaff to enter into a mirror agreement with the AMWU, didn't he?---He did.
PN1115
That was the term used?---Yes.
PN1116
Yes. At no point did Mr Oliver suggest that there would be any recourse to any industrial activity, did he?---No.
PN1117
In fact the only thing that Mr Oliver suggested to you and Mr Melhuish obviously who was also at the meeting, was that if there was a problem legally with the agreement we would probably have to do something about that. That is correct, isn't it?---But that is certainly not the way it was put, no.
PN1118
That was the implication of what was put to you, wasn't it?---Well, I think the words we have concerns about the agreement and we are seeking legal advice about it.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1119
Yes?---Well, I think it is a different connotation to that statement than the one you put.
PN1120
Possibly. Now, I put to you, Mr Townley, that an organisation that has members in a workplace, if they find irregularities with industrial instruments, are under probably an obligation to correct those irregularities, or at least bring those irregularities to the forefront so that people are aware of them?
PN1121
MS McKENZIE: I object to that question. How does Mr Townley know what obligations people are under?
PN1122
HIS HONOUR: It is a pretty long ..... Mr Addison. Mr Townley is not an expert on the obligations of - - -
PN1123
MR ADDISON: Yes, okay. I will withdraw that. I will withdraw that.
PN1124
HIS HONOUR: Mr Townley, while Mr Addison is gathering his thoughts, as I understand the position that Forstaff favours it is effectively that you would retain the status quo that the order would survive, that is the primary position?---Yes, your Honour.
PN1125
The way in which the matter has come before the Commission to some extent on the Commission's direction is countenances an all or nothing position to set aside the order, or don't set it aside, so that is consistent with the determination of your primary position?---Yes, your Honour.
PN1126
The way in which the ALAEA puts its case, it supports your primary position that retains the benefit of the entire order but it has a fallback position that says, well, if we don't retain the benefit of the entire order we should at least retain the benefit of the right to represent anybody who is within our members throughout the period. Do you agree with that?---Yes, I do.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1127
And you are conscious of that aspect?---Yes.
PN1128
Moving beyond that without going into the terms of the powers of the Commission which as I understand it are now dealt within section 133 of the Act - sorry, of schedule 1B. The concerns you have relate to stability at the site at least over the term of the extant agreement after - as the second range of concerns. Is that a fair statement?---Primarily, yes, your Honour.
PN1129
And primarily in that regard it is the safeguarding of the agreement that you have struck, is that correct?---Yes.
PN1130
Yes. And that agreement is with the ALAEA separately, or effectively as the single bargaining unit the agreement was made with it under section 170LJ and then approved by, on the finding of the Commission, a valid majority?---Yes, your Honour.
PN1131
Of employees engaged at the time whose employment would be subject to the agreement. If the order were not to stand have you given any thought, or has there be any discussion of what would be the position of the AWU or other organisations in relation to that agreement?---We have had discussions with our legal representatives and I have to say that the outcome is not clear to us as to how we would operate on the site under those conditions, with respect to the existing agreement and/or any attempts or requests for alternative agreements with those other organisations.
PN1132
Why would there be a necessity for alternative agreements?---Well, I only raise that on the basis that it was raised with us as an option by the AMWU. So we took it obviously to our legal advisers to understand what the implications of that were.
PN1133
The agreement with the organisation which made it - leaving aside any question of whether the agreement eventually falls over, but if it doesn't fall over binds Forstaff, and unless I am mistaken with the application, all employees engaged in the classifications who are employed by Forstaff during the life of the agreement?---That is correct, your Honour.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1134
Has any consideration been given to the operation of section 133 of schedule 1B, that is the tailoring of the order, in relation to that question of how the agreement operates and who might have rights under it in addition to the ALAEA?---I am not sure that I understand your point, your Honour, of your question. In terms of the tailoring of any subsequent order, is that what you are suggesting?
PN1135
Yes. What I am seeking to take you through are what are the priority considerations of Forstaff and as I understand, that they focus mainly upon stability at the site, apart from the question of representation, and the future of the agreement that has been struck over three years. You were putting it in terms of how does that agreement operate if there are more unions with a presence at site. I am at a little bit of a loss as to how that position is singular to Forstaff. I would have thought there must be numerous instances of 170LJ agreements made with one organisation that bind the employees and subsequently other unions either are or always were on site and were not party to the LJ or become on the site - - -?---I understand your point I think now, your Honour.
PN1136
Yes?---The concern I guess we have is that obviously we have a party to the agreement being the ALAEA and within the context of additional, I guess different to other sites, on the basis that we haven't had the additional union involvement from the day we opened the doors, so we have had a process established whereby our consultative committees, etcetera are established. My concern is really from an operational perspective how we will function given clearly the issues that exist between the bodies of the employee organisations that are vying, if you like, for positions, jockeying for position on site. So clearly we have concerns about their interaction with the ALAEA in relation to those processes and committees that we have established, how we would function in that regard. I mean it is not just up to - - -
PN1137
I just mention - the detail of the consultative arrangement, is that provided for under the agreement?---I don't believe it is actually provided for under the agreement. It is process that is established outside the agreement in terms of the committee representation.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1138
Is it one, so far as you are aware, that is structured upon the ALAEA organisational rule, or is it simply one that is informally and outside the agreement?---I believe it is informal in the sense of the structure of it, but the process is formalised in terms of - - -
PN1139
But that is one area of operative concern you have of any post 118A monopoly coverage arrangement?---That is right, your Honour.
PN1140
To simplify the nature of the ALAEA, LAME coverage?---Precisely and that extends down to I guess - - -
PN1141
Are there others?---I guess it extends down to the lowest common denominator in terms of simple matters of disciplinary action that may or may not occur on site from time to time with employees. How our site manager and - - -
PN1142
And that goes to the dispute resolution procedure in which the ALAEA is effectively the sole union representative?---That is right.
PN1143
Yes?---So fundamentally the guidance we will need to give our site manager and team will become far more complex and to give that guidance we first have to understand it ourselves and I am not sure that we do yet.
PN1144
Yes. Yes, I think that is as far as I want to take that. Yes, Mr Addison.
PN1145
MR ADDISON: Yes, thanks, your Honour.
PN1146
Just a couple of points. Doug, during the negotiations of the enterprise bargaining agreement one of the serious issues that employees had was the transfer from a seven day, three week based roster back to a five day, about a two week roster. That is correct, isn't it?---They have concerns with roster change, yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1147
Yes.
PN1148
HIS HONOUR: I am sorry, could you just put that again, seven day, three shift roster?
PN1149
MR ADDISON: Seven day on a three week - no, no, on a three week cycle. I am not quite sure how it works, your Honour, but as I understand it, it is a seven day - - -
PN1150
HIS HONOUR: Seven day, three week cycle to a - - -
PN1151
MR ADDISON: Five day, two week cycle as I understand it?---Effectively it can be simplified as a seven day, two shift operation, seven by two going to a five by two. That is probably the best way of describing it.
PN1152
HIS HONOUR: That was what, two 12 hour shifts?---No, your Honour. They are eight hour shifts.
PN1153
I see. So it was seven day, two eight hour shift operation going back to a five day, two eight hour shift operation?---That is correct.
PN1154
MR ADDISON: Given all the additional work that is clearly there, it must be there or else you wouldn't be up to 746 employees, is it an intention to work overtime to cover the weekends?---If there is overtime to be worked it will be worked on the weekends or after normal start and finish of the shifts. The reason for the shift roster change is driven by the type of work going into that particular hangar. It relates only to a particular hangar on the site. But nonetheless, it was part of our negotiation strategy that we do not have the normal provisions of an employer to change the roster pattern of our employees based on a business need. Given the facilitative clause within the agreement which establishes parity with similar provisions of Qantas agreements, we thought it proper that we pursue that and seek the same as any other employer would expect in terms of the ability to change employees onto shifts that were appropriate for the enterprise.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1155
Yes, I am not questioning that, Doug, not at all. The point I am getting to is the change as I understand it and as I am instructed would have resulted, at least for those employees in that hangar which I think is hangar 4, is that right?---That is correct.
PN1156
Would result in a 20 per cent decrease in take home pay?---In that order for those within the existing workforce that were transferred to the hangar, that would be correct.
PN1157
Yes. And there was certainly substantial concern coming from that group of employees, that is clearly correct. How many employees are we talking about in hangar 4?---Hangar 4 the normal complement will have in the order of 150 employees notionally attached to it, but obviously the majority of employees going into hangar 4 were recruited specifically for hangar 4 and were advised of that shift roster prior to being employed.
PN1158
So there is a significant slab of people involved in this?---Yes.
PN1159
Just bear with me. Okay, thanks, Doug. As I understand it there were 60 or so employees from hangar 6 that were transferred to hangar 4?---That may be true. I am not aware of specific numbers. I do know that of those that were transferred within the existing workforce, and clearly there was a need to transfer some experience into that hangar to start it, the vast majority, and I am talking a significant percentage, were volunteers.
PN1160
Yes. I am also instructed that there is a number of people recruited from overseas?---Correct.
PN1161
To go into hangar 4 who principally, as I understand it, are Filipinos?---And Singaporians.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1162
And Singaporians. And I am told that they were informed that it would be a seven day roster?---You were incorrectly informed.
PN1163
HIS HONOUR: I am sorry, you were incorrectly?---Incorrectly informed. That is false.
PN1164
MR ADDISON: Yes, that is fine. That is fine.
PN1165
HIS HONOUR: I just didn't hear it, Mr Addison.
PN1166
MR ADDISON: Yes. Now, am I right in assuming that roster changes were the key bone of contention if you like during the negotiations for your new EBA?---I think that is fair.
PN1167
Yes. That is not really surprising given that background we have just gone through, is it?---No.
PN1168
No. And the matter as I understand it was listed for potential arbitration. That is correct, isn't it?---Yes.
PN1169
Yes?---Yes.
PN1170
The matter was before Commissioner Eames?---Correct.
PN1171
And there had been conciliation conferences with Commissioner Eames?---That is right.
PN1172
And the EBA was narrowly defeated at the first attempt to get up, wasn't it?---Yes.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1173
And that was narrow as I understand it. Just bear with me. Yes, the agreement was defeated by something like 16 votes, 227 to 209. That is right?---That is correct.
PN1174
Eighteen votes. My maths are shocking. And this was in that climate that we have just talked about?---Yes.
PN1175
Following the defeat the matter was listed back before Commissioner Eames, was it?---It was.
PN1176
And Commissioner Eames issued a recommendation following a conciliation conference?---Yes.
PN1177
And that recommendation was that there should be some further discussions between Forstaff and the ALAEA in an attempt to resolve the outstanding matters and that if the outstanding matters were not resolved then the matter would come back before Commissioner Eames to be arbitrated?---That is correct.
PN1178
Now, that was the key issue. Commissioner Eames wasn't arbitrating and couldn't in fact arbitrate the enterprise bargaining agreement per se, was he?---No.
PN1179
No. It was just the one issue of roster changes that was before Commissioner Eames?---Effectively.
PN1180
Yes. Now, I put it to you that when people went back to the site following that conference with Commissioner Eames they went back armed with the recommendation of course, quite proper, and they told employees either we reach an agreement on this or it will be forced on you by the Commission. That is correct, isn't it?
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1181
MS McKENZIE: I object to that. Which people went back and told what people? How does Mr Townley know that?
PN1182
MR ADDISON: You are aware that Mr Norris, the ALAEA industrial officer responsible for the site, made those statements to employees?
PN1183
MR CHIN: I object. It is grossly unfair, your Honour. Mr Norris was in the witness box yesterday and none of this was put to him properly. This allegation ought to have been put to him yesterday, it was not and it is not proper for Mr Addison to raise it with this witness on this occasion.
PN1184
MR ADDISON: I withdraw it. In terms of those further discussions that were had between Forstaff and the ALAEA, as recommended by Commissioner Eames, did those discussions take place?---Yes. I was not present for them but, yes, they did take place.
PN1185
Yes. And some changes were made to the enterprise agreement?---My understanding is only one change was made and that was in relation to the overtime banking provisions.
PN1186
But a change was made nevertheless?---Yes.
PN1187
And the matter went back to employees for - well, I do apologise. As I understand your evidence-in-chief, you say you had the discussions, then you went to shift meetings, is that correct?---Shift meetings were conducted following, yes.
PN1188
And the shift meetings were conducted, one presumes, to explain the changes to the enterprise agreement?---The shift meetings again I am advised but I wasn't actually present for the union shift meetings, I am advised that the ALAEA undertook to brief the workforce as to the intent of the EBA, the issues in relation to the hours of work provisions and specifically to make sure that people understood that despite what they may have read or seen this was a vote for an enterprise agreement, not for rights of representation so - - -
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1189
Right, because you had both processes going on at once, didn't you?---No, we didn't but there was certainly a lot of information that you were putting out.
PN1190
Sorry, I put that badly. You had your enterprise bargaining negotiations going on with the ballot for the enterprise bargaining endorsement?---Yes.
PN1191
HIS HONOUR: I think we all understand the timing, Mr Addison, even you.
PN1192
MR ADDISON: Yes, yes. So are you saying there was some confusion on the job between the two issues?---I would suggest there would have been quite a lot of confusion amongst the workforce as to what was going on based on the information they were seeing on fliers, yes.
[10.55am]
PN1193
Yes, okay. So you went back to shift meetings. There was discussions among the shifts and then you had a ballot. As I understand the process that was used it was a secret ballot, that is correct, isn't it?---That is correct.
PN1194
And there was different coloured ballot papers?---Yes.
PN1195
For the different shifts, yes?---I know that was certainly the case in the first ballot. I can't confirm whether it was in the second. I think it may have changed for the second ballot because of concerns that were raised about that, be they valid or not.
PN1196
Yes, that was a semi secret ballot rather than a secret ballot?---No, the actual coloured paper was in fact so that we understood that each shift had in fact voted. There was a different colour for each shift, A, B or C.
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
PN1197
Yes, okay. So you went to a secret ballot. Now, that would require a person to cast a vote obviously and that vote was done where?---My understanding is it was done in the canteen area of hangar 6.
PN1198
Okay. So employees would be required to be off the job for what, 10 minutes to go cast a vote?---Notionally, yes. It wouldn't take that long. Yes.
PN1199
And that is one of the necessary costs of enterprise bargaining?---Yes.
PN1200
Do you agree?---Yes, on the first occasion.
PN1201
Well, you would also agree as a general proposition often agreements don't get up at the first vote?---Yes.
PN1202
Yes, yes. I have nothing further, your Honour.
PN1203
HIS HONOUR: Yes. Mr Townley, in running through the concerns about the potential operation of the agreement should there be a broader practical range of organisations represented at the site, you mentioned consultation in particular, or the framework for it, the dispute resolution procedure. Earlier in your evidence I thought you touched also upon what you saw as an absence of any functional demarcations unrelated to training or competence of people in particular classifications. I take it from what you say that is the way in which work operates at present for practical purposes?---That is correct, your Honour.
PN1204
Is that operation without functional demarcation a necessary functional demarcation a product of the agreement, a product of something else?---I think it is a product of the culture now that has been established at Avalon from its inception and I guess that was really because of the approach of the Greenfield site single union coverage. I am not sure what the effect on that will be and I say that only because of the options I guess that has been floated in terms of
**** DOUGLAS WARRINGTON TOWNLEY XXN MR ADDISON
mirror agreements for others if all classifications are covered. I am not sure whether that would provide the same amount of flexibility or not. The question I guess would depend upon classifications that were contained within the agreements and membership of the relevant unions within separate agreements. I am not sure.
PN1205
Has there been any prejudice to that practical operation of a lack of demarcation between classifications as yet?---To date, no. To date not.
PN1206
I see. Is there any specific provision in the agreement that mandates or requires that absence of unnecessary demarcation differences?---No, not specifically, your Honour.
PN1207
Yes?---It is more a management function.
PN1208
Yes, thank you. Any re-examination?
PN1209
MS McKENZIE: No, your Honour, I have got no questions arising. Might Mr Townley be excused?
PN1210
PN1211
MS McKENZIE: Mr Townley is the only evidence called on behalf of Forstaff, your Honour.
PN1212
MR CHIN: Your Honour, the ALAEA has two further witness, Mr Matthew and Mr Kemp. I have been informed by Mr Addison today that Mr Matthews will not be required for cross-examination so that that leaves Mr Kemp. Perhaps we can inform Mr Matthews that he is not required and call Mr Kemp.
PN1213
HIS HONOUR: Certainly.
PN1214
MR CHIN: Before I do that can I formally tender the statement of Mr Matthews.
PN1215
HIS HONOUR: Yes, I have marked that I think as LAE3. Are there any changes to that? That is in the correct form I take it?
PN1216
MR CHIN: Yes, your Honour. There is a signed statement, a copy of the statement.
PN1217
HIS HONOUR: Yes. That is not necessary if it is accepted. I was simply looking if there were typographicals they could be corrected, yes.
PN1218
MR CHIN: I don't it is at issue. Thank you, your Honour.
PN1219
HIS HONOUR: Yes.
PN1220
MR ADDISON: Before my friend calls his next witness I wonder if it is possible to have a very, very short adjournment, five minutes?
PN1221
HIS HONOUR: Yes. Are we going to have that straight away? There was something I wanted to raise with the parties. Perhaps I should do it this way, in the course of the proceedings I have had a look at section 133 of schedule 1B. So far as I can recall, and I haven't checked that provision as it is pretty much the same wording as the old 118A, was it? I would be assisted and I have not covered this in the directions, but I note I think that there is not much coverage of it in the contentions or submissions put to me by having someone look at - or having some parts of the submission to have at least address what if any relevance that provision has to the way in which I exercise the discretion that is before me.
PN1222
I think I can indicate, operated on the basis that I was looking more within the terms of the original decision and the wording of the order in formulating the direction. It occurs to me on looking to the terms of 133, or for that matter, 118A, that it may be necessary to be mindful of the statutory framework within which the order was framed and within which it would need to be varied or set aside. In that context, assuming I am correct in the assumption that there is a continuing relevance of the enabling power, there are some questions that even though the evidence is incomplete I would want to indicate to the parties seem to be fairly raised.
PN1223
I have to some extent taken those points to Mr Townley in the sense of identifying the primary issue as to whether the order that is made should stand or should be set aside in entirety, the all or nothing predicament. The next stage subsidiary to that is the ALAEAs fallback position that if it is not all then it should not be nothing, it should retain the right of representation that it has outside the coverage of its eligibility rule, if I am paraphrasing that correctly.
PN1224
In that context the ALAEA has rights of representation and has exercised those rights in relation to the agreement that is to run for three years. In all of these comments I am of course assuming that that which is done has been correctly done and the agreement stands. It follows that the ALAEA, at least by the terms of that agreement, is the primary representative on the site for purposes of that agreement within its eligibility coverage at least, regardless of the order, and if the order were to retain I think it is the 133(1)(b) element of extending the right of representation, very extensively for the ALAEA in relation to all the persons who are members of it at the site.
PN1225
That then takes one to the other concerns that have been raised either as to the operation of the order - sorry, of the agreement in connection with the ALAEAs indisputable continuing right to represent all, or at least a substantial of its current members, how do those rights of representation operate in possible juxtaposition with any other rights that either already exist in relation to unions not represented here or which might be restored if the order were to be set aside.
PN1226
Mr Townley's evidence has brought into sharper relief matters that were already touched upon in Mr Oliver's evidence. I will be seeking from the parties at least some indication of why any variation to the order, if one were to be made, could not address under the right of representation a segmentation of rights of representation. Most 118A orders in the past have been dealt with on a more or less catholic basis that in a non sectarian sense that there is a right of representation under the Act and it is perhaps a little bit unclear what it means, but means one thing.
PN1227
I am posing whether there may not be a segmentation open with an order that could, for instance, deal with the matter this way, and I am only thinking aloud for purposes of putting the statement on record so as the parties can address it, that if the exclusion of the AMWU were to be removed the order might nonetheless say that it is removed in relation to its right to represent the industrial interests of employees on the site but is subject to the condition that it will not exercise those rights in a way that institutes a new bargaining period or seeks an agreement other than the one that is already in force over the life of that agreement, subject to that agreement if the parties so agreed, being varied to include it or other organisations as parties.
PN1228
In the absence of any such arrangement then rights of industrial representation of the ALAEA under that agreement would need to be exercised in a way that was compatible with recognition being given to the representation rights under the agreement of the AMWU, or the AWU, or the NUW as entities in relation to their respect areas of coverage. In other words, what I am raising is a question for consideration in submissions is whether the order might not still be tailored to specify particular rights of representation to specify particular conditions, at least for a term coextensive with the remaining life of the extant agreement, assuming it remains extant.
PN1229
In other words, the ALAEA, let us assume for arguments purpose that it does retain its fallback position of having rights to represent those within its membership, would nonetheless have an obligation to facilitate the nomination of representatives for purposes of the agreement, the dispute settling provision or the like, where there are matters discretely relevant to other organisational entities that could be represented on the site. I realise that is a fair mouthful.
PN1230
The one question I haven't articulated fully and that is if you look at the terms of 133 there is an assumption of a continuing demarcation dispute. I haven't been addressed on anything that is before me. I should indicate that I don't assume that there is no demarcation dispute, nor do I assume that the original one that was found has evaporated. I suppose I should add finally that the ordering - no, the timing rather than the ordering of the expiry of the agreement extant at the time that the order was made and the timing of the proposed date for the continuance or otherwise of the sole exclusive representation of the ALAEA and the opportunity to have the order reviewed with or without that condition being observed was not accidental.
PN1231
The Commission in framing the original decision they had in mind that there would be an opportunity for the electorate to have voted on their future industrial representation. They would have had at least I think a couple of years of operation under the agreements that the ALAEA had struck. There would be an opportunity to renew those agreements. There would then be an opportunity to express a view about rights of exclusive representation and then the Commission would review the position. I am framing the question in the way in which I have a question. It is more a statement.
PN1232
I am seeking to get the parties to come to bear on what appear to be the substantive elements that are implicit, both in the way in which Forstaff operates at the site but which are probably also tangible elements in 133 in the review or variation of the order. I realise it is a bit of a load to impose upon you but I have done it at the first opportunity. But as these matters I have occurred I have sought to grapple with the problems that in some senses Mr Oliver raised in his evidence but which were also part of Mr Townley's evidence and the matters that are before the Commission and they're obviously not novel to you at least in a practical sense. So I will give that five minute adjournment.
SHORT ADJOURNMENT [11.12am]
RESUMED [11.26am]
PN1233
MS McKENZIE: Your Honour, I was going to raise one matter if I can which arises fairly directly from matters that you raised just before the adjournment and I have mentioned it briefly to Mr Chin. We would certainly like the opportunity consider more fully the matters that you have raised because we think they are important matters and they raise a number of issues, some of which were clearly going to be addressed in our submissions in any event, but there are some other aspects that have arisen out of the evidence of Mr Townley that we would like to direct a bit more attention to and we would like an opportunity obviously to still put our submissions orally and it raises I think the practical issue of whether it is appropriate to proceed to put any submissions today.
PN1234
We think that perhaps the better course is in the light of your Honour's comments that we all be given an opportunity to consider those in the transcript and that would have the obvious advantage of the other evidence being available on the transcript and complete the evidence today and then have another date to conclude the matter by putting oral submissions. Your Honour indicated 18 December. I wanted just to inform your Honour and the other parties that I am not available on that. I have got a two day matter before Commissioner Raffaelli in Sydney and indicate whether it is possible for another date to be set.
PN1235
It appears to us that the majority of the parties involved are based in Sydney so we for our part would not see that the hearing necessarily needed to be in Melbourne. All of the Forstaff people are based in Sydney. Mr Chin and Mr Staff are also from Sydney, and your Honour of course, so we would be obviously in the Commission's hands in that regard but to the extent that it made other dates available.
PN1236
HIS HONOUR: Yes.
PN1237
MS McKENZIE: We are conscious of the timing. We would request that another date be set that suits the parties convenience and the Commission's obviously, so that the matters could be put by way of oral submission, but we would not attempt to go into submissions.
PN1238
HIS HONOUR: Yes.
PN1239
MS McKENZIE: Thank you, your Honour.
PN1240
HIS HONOUR: What is the view on that?
PN1241
MR CHIN: Your Honour, we agree with the position as put by Ms McKenzie. Similarly we would appreciate an opportunity to consider more carefully what your Honour has put prior to the short adjournment, although there are some, if not all, matters raised by your Honour about which we are able to address today. It may be that in any event the matter will have to be revisited by further supplementary submissions so the better course may be as proposed by Ms McKenzie.
PN1242
HIS HONOUR: Yes. Mr Addison.
PN1243
MR ADDISON: Yes, your Honour, it comes as a bit of a surprise to me. I would seek a further adjournment if I could before responding just to get some instructions. I have no instructions with regard to that proposition.
PN1244
HIS HONOUR: Yes.
PN1245
MR ADDISON: In principle I am not opposed but I would need to get an instruction. So I would seek 10 minutes to make a phone call if I could, your Honour?
PN1246
HIS HONOUR: Yes. It wasn't my objective of course to put the parties to an adjournment but it did occur to me that ..... now, we might get into submissions today and then have a much sort of similar predicament. I would also caution against taking any particular segment of what I have said out of proportion or seeing it in any predetermination and I have raised these matters because behind the, if you like, formal aspect of an order that in one sense expires on 5 January lies on the evidence some pretty substantive problems of the kind that were originally addressed in the order and reasons for making it. That is without departing from what Mr Oliver said about the reasons associated with the management of the AMWU in Victoria having been changed.
PN1247
But I don't want anybody to assume that in what I have posed as an all or nothing opening gambit that either all or nothing is not an impossible outcome. By that I mean that you should pretty closely at the detail of the problems that I have repeated out of your respective bodies of evidence with a view to suggesting you might try to find a solution to me and if I can't see how you have provided a solution then I will see it as part of the problem and that will come back as to whether it is an all or nothing outcome. That is simply an intended warning from what was an extempore around a problem. Yes.
PN1248
MR ADDISON: Before I seek the instruction, your Honour, I wonder if it is possible, I am presuming we can get transcript urgently because I think Ms McKenzie is right, I think we should have the transcript to - - -
PN1249
HIS HONOUR: Yes. Well, as urgently as one can manage these things. My associate will organise that.
PN1250
MR ADDISON: Is it possible to get an indication of some dates that might be available following next week? I can indicate that I am not available at all next week. I am fully booked.
PN1251
HIS HONOUR: I think I am available in Sydney next week but I have a daunting array of lunches.
PN1252
MS McKENZIE: Time of year.
PN1253
MR ADDISON: Half your luck. I am completely out next week. I am in Ballarat.
PN1254
HIS HONOUR: So you are out next week?
PN1255
MR ADDISON: I am in Ballarat three days and then two days in front of SDP Acton.
PN1256
HIS HONOUR: Well, I have hearings in Adelaide. Sorry, Adelaide is cancelled. Well, the 9th is free. Friday, the 12th I think is free. Could I indicate those two dates? There are two dates that could be found. I think most of that week is free by the look of it, but I will need to correlate my own diary on that. They should be overlapping. But say the 9th and 11th is two possible dates anyhow.
PN1257
MR ADDISON: 9th, 11th and 12th, is that right, your Honour, 9, 11 and 12?
PN1258
HIS HONOUR: Yes, I think so, 9, 11 and 12, yes.
PN1259
MR ADDISON: Well, I would seek that 10 minutes to make a call if I could, your Honour?
PN1260
HIS HONOUR: Very well, certainly.
SHORT ADJOURNMENT [11.32am]
RESUMED [11.44am]
PN1261
MR CHIN: Mr Addison is being retrieved, your Honour.
PN1262
HIS HONOUR: I seem to be developing a capacity for surprise.
PN1263
MR CHIN: Your Honour, I understand that someone has gone downstairs in the building to alert Mr Addison.
PN1264
HIS HONOUR: Retrieve him, right. Well, I think we might as well just sit on and wait until he comes back.
PN1265
MR ADDISON: Your Honour, I have to confirm I have just had a discussion with the state secretary with regard to the matter and we agree that the submissions should be adjourned off until either the 9th, the 11th or the 12th. I am in your hands when it comes to the date, your Honour.
PN1266
HIS HONOUR: I will leave it in parties hands.
PN1267
MS McKENZIE: I can say in relation to that, your Honour, that Mr Chin and I the 11th would suit us both best of those three dates if that is possible.
PN1268
HIS HONOUR: Very well.
PN1269
MS McKENZIE: That is assuming it is in Sydney I should say, your Honour, if that is also possible?
PN1270
MR ADDISON: I think that was the indication it would have to be.
PN1271
MS McKENZIE: Yes.
PN1272
HIS HONOUR: Very well. It will be 10.15 on the 11th. Is 10.15 am okay?
PN1273
MS McKENZIE: Yes, your Honour.
PN1274
MR ADDISON: Yes.
PN1275
HIS HONOUR: On 11 December in Sydney. We still have the evidence though to conclude, do we not?
PN1276
PN1277
MR CHIN: Your name is David Gerard Kemp?---Correct.
PN1278
You are the Federal Secretary of the ALAEA?---Correct.
PN1279
And you reside at 58 High Street, Lancefield in Victoria?---Correct.
PN1280
Mr Kemp, you have prepared a statement for the purposes of these proceedings?---Certainly.
PN1281
Do you have a copy of that statement with you?---I do.
PN1282
That statement, your Honour, is marked LAE1.
PN1283
Mr Kemp, do you say that the contents of that statement are true and correct to the best of your information, knowledge and belief?---I do.
PN1284
I tender that statement, your Honour.
PN1285
HIS HONOUR: Yes. That has been marked as LAE1.
PN1286
MR CHIN: With your leave, your Honour, I seek to show Mr Kemp one further document and to ask him some questions?
PN1287
HIS HONOUR: Yes.
PN1288
MR CHIN: Might Mr Kemp be shown LAE5, a bundler of fliers? Mr Kemp what I have shown is a bundle of fliers. Could I ask you to turn to I think it is the last flier. It is headed AMWU Qantas Newsletter, dated 27 October 2003?---That is the one there?
**** DAVID GERARD KEMP XN MR CHIN
PN1289
Yes, that is the one?---Yes.
PN1290
In your statement you adverted to having received some fliers. Is this document that I have asked you to look at as part of LAE5 one of the fliers that you have seen in the past?---Certainly. Certainly, yes.
PN1291
How is that you came to view this particular document?---It appeared on the fax machine at our organisation and I don't know, there was no covering page or any other details but looking at the fax header I determined it came out of a Qantas facility.
PN1292
I see. And you have read that document?---I have.
PN1293
And do the contents of that document cause you any concern?---I must say when I first read it I was very annoyed at a couple of statements in the first paragraph.
PN1294
What are those?---Well, it goes to the last sentence - the last two sentences and it talks - particularly the very last sentence, but I guess in the context of the first sentence of those two it says:
PN1295
Qantas has increased the contract of heavy maintenance work at Avalon despite assurances that it will remain overflow maintenance facility.
PN1296
Well, that is, you know, misleading. The AMWU in my mind is misleading their own members at Qantas about that because it has always remained an overflow facility. There has never been any change and the work that has come in there is work that the ALAEA has worked very hard with Qantas to have brought back from countries like New Zealand and Singapore. It was overflow work that couldn't be done at Qantas base. So for the first suggestion there is that somehow that it was undermining AMWUs members jobs at Qantas, well, then it goes on to suggest that:
**** DAVID GERARD KEMP XN MR CHIN
PN1297
Qantas uses Avalon agreements to undermine the wages and job security of all Qantas maintenance workers.
PN1298
Can I ask you just to pause there?---Yes.
PN1299
What is the concern you have with that statement?---Well, the concern I have with that statement, to my mind that picks up from my view about why they want access to the site. They don't want access to site to just be able to represent people down there who they say wish to be members of the AMWU. My view is they want access to the site to disrupt the site in order to ensure that Qantas maintenance workers protected. I think they have got a view that Avalon is undermining Qantas bases and they have stated that in those words in wages and conditions and that is not the case as we know the EBAs has a parity clause which states that, you know, people at Avalon will receive the same terms and conditions of employment as Qantas workers and to print that, a deliberate, in my mind, a deliberate lie, is to suggest that the reasons they want it signed is they want to disrupt the site. Ultimately to have - I guess their logic is that if disrupt Avalon Qantas will withdraw from Avalon and the work would return to a Qantas base and that is just not going to happen. It is just going to go back overseas where it has been going previously.
PN1300
Mr Kemp, can I ask you this, you are aware the AMWU is seeking to have its rights to represent employees at the Avalon restored?---Yes, I am aware of that. Yes.
PN1301
There is currently a certified agreement in place to which your union is sole party?---Correct.
PN1302
The sole union party?---That is correct, yes.
PN1303
With sole rights under that agreement?---Yes.
**** DAVID GERARD KEMP XN MR CHIN
PN1304
Can I ask you this, if the AMWU were to obtain rights to represent employees at the Avalon facility what is your view as to the impact of that grant of right to the AMWU in view of the existence of the current EBA?---My view is that it will lead to disruption on site. My view is that they will use whatever means they can in order to destabilise the site to protect their major base at Qantas. That is my view about it.
PN1305
What rights would the AMWU have under the current certified agreement?---None as I understand at this moment.
PN1306
On what basis do you hold the fears that you have just adverted to?---Well, because there is currently a 118A order in place and that hasn't seemed to prevent them from coming down and agitating and causing difficulties, so the mere fact they don't have access to the agreement I don't believe would stop them as an organisation to come down there and continue to disrupt the site.
PN1307
Thank you, Mr Kemp. I have nothing further in-chief, your Honour.
PN1308
MS McKENZIE: I have got no questions for Mr Kemp, your Honour.
PN1309
PN1310
MR ADDISON: Thanks, your Honour.
PN1311
Mr Kemp, have you had any discussions with anybody from the AMWU in the recent past?---Not on matters of Avalon but on other matters, yes.
PN1312
Given the fact you have no discussions with regard to Avalon - I withdraw that. Could I ask if Mr Kemp can be shown AMWU1.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1313
HIS HONOUR: That is Mr Oliver's evidence is it?
PN1314
MR ADDISON: It is the statement of Mr Oliver, yes.
PN1315
Mr Kemp, there is an attachment to AMWU1 which are the rules of the ALAEA. Can you just have a quick look at them and tell me if they are to your mind, they are the current rules? I can tell you they came off the net this week so one would hope so?---Certainly. Yes, we keep our web site up to date. Yes, they are current rules.
PN1316
Now, since the order in 2001, which is the 118A order, have you amended your rules at all in terms of rule 2 or rule 3 which are the industry and the constitution rules?
PN1317
MR CHIN: I object, your Honour. In my submission the issue of any changes to the ALAEAs eligibility rule is not relevant since the recision of I think it is subsections 5 and 6 of 118A and now section 133 of the RAO schedule there is no requirement for capacity for the changing of rules pursuant to an order under section 133. On that basis whether or not the ALAEAs rules has been changed is not relevant to the proceedings before your Honour and I object to the question on that basis.
PN1318
HIS HONOUR: Yes. What is the relevance of it, Mr Addison?
PN1319
MR ADDISON: Well, I think it is highly relevant to the fallback position of the ALAEA in any event as outlined in ALAEA4 I think it is. Your Honour, it was a matter - - -
PN1320
HIS HONOUR: Yes, I will allow the question. The answer is that they haven't I think, isn't it?---No. Well, not that I can recall anyway.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1321
MR ADDISON: The ALAEA, the LAMEs constitution allows them to cover licensed aircraft mechanics only, is that correct?---Correct.
PN1322
And you currently have - or do you currently have people enrolled as members of the association that are not licensed mechanics?---Correct.
PN1323
You say in your witness statement, if you would bear with me. Yes, paragraph 24 you say in your witness statement that you have 75 licensed aircraft mechanics as members. Yes?---It is a couple more than that now but yes, that is approximately correct. Yes.
PN1324
Seventy four to 76?---Seventy seven.
PN1325
Seventy seven, okay. How many licensed aircraft mechanics are on at site at Avalon, do you know?---That is the number there, 77.
PN1326
So you have all licensed mechanics?---Sorry, did you say unlicensed or licensed?
PN1327
No, licensed I said?---Sorry, I missed - - -
PN1328
How many licensed aircraft mechanics are on the site?---Yes, 77. 77.
PN1329
So you have total coverage of licensed aircraft mechanics?---Well, I believe so. I can't say for certain that everyone of them is but I believe so.
PN1330
Now, you say you have 213 unlicensed engineers?---Certainly, yes. It is probably more.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1331
Now, do I take that to mean the fitters effectively, yes?---Well, yes, that is your terminology, yes. Unlicensed aircraft engineers is what we refer them to, AMEs.
PN1332
Yes, okay. AMEs?---Mm.
PN1333
That was the term I was trying to find. Now, Are they all mechanical people?---No, they would be various classifications.
PN1334
Okay. And but for the section 118A order you wouldn't have the capacity to cover those people, would you?---Not at Avalon.
PN1335
No, that is right. Do you cover unlicensed aircraft mechanics at Qantas?---No.
PN1336
Or L3, which is on the same side as Avalon?---I am not of it but I would have to check my membership records.
PN1337
Yes. In general you don't cover unlicensed mechanics anyway, do you?---We do, certainly do. As a direct decision of the ACTU many years ago they asked the ALAEA to pick up all unlicensed mechanics in general aviation in regional Australia, because no other traditional union was prepared to expend the time and resources to do that.
PN1338
Can I ask, notwithstanding Mr Chin's position earlier, that 133 has now taken over from 118A, you have had the 118A order in place January of 2001 I think it is, is that right? Yes, January 2001. Why didn't the association seek to change its rules between then, January 2001 and the amendments to the Act which occurred last year - sorry, this year, 12 May 2003? Can I ask why there was no move?---Certainly, certainly. Look, there is a number of factors that influence it. One is the fact that we are in an industry where we operate and it is just the aviation industry where your union and other unions do operate and we have all the time members from those organisations approaching us to seek
**** DAVID GERARD KEMP XXN MR ADDISON
to pick them up. We as a general rule have not done that and have declined those membership offers on the basis that at the moment we do have Avalon. We know it is an arrangement which is an irritant to other organisations but it is a beachhead and if we were to go out overtly and change our rules we would have a view that organisations would be seeing that as an aggressive approach by the ALAEA to poach members from them and we don't want to get into that sort of combative battle with other organisations because that is not the intention of the organisation.
PN1339
Are you familiar with 118A proceedings that have gone forward in the Commission before?---Look, I am not an expert on it. I understand what - I came to the organisation as the secretary after this order came in place, so I understand the basics of how it came in place but not the technical detail.
PN1340
You know that you would have been able to change your rule to expand your constitution at Avalon only, don't you?
PN1341
MR CHIN: I object. I think my friend, Mr Addison, puts his question on an incorrect assumption of the provision at the time of the January 2001 order. The section 118A provision did not include subsections 5 and 6 which in the past have required or provided for a subsequent or consequential change of rule.
PN1342
HIS HONOUR: That went with the '96 Act, didn't it?
PN1343
MR CHIN: That is correct.
PN1344
HIS HONOUR: Yes.
PN1345
MR CHIN: So that I am concerned that the question is proceeding upon a misconception as to the nature of the provision at the time the order was made.
PN1346
HIS HONOUR: Yes.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1347
MR ADDISON: Yes, I think that might be right. I don't have a copy of the previous Act. I will withdraw that.
PN1348
Mr Kemp, according to your rules you have got two types of members. If you go to rule 5 - and your Honour, I would apologise in advance for the quality of the photocopying. You will find that the bottom line on the relevant page of rule 5 hasn't properly come out, but the words should read:
PN1349
Federal executive considers it reasonable to do so.
PN1350
That is what the last line reads. Mr Kemp, can you confirm that? That is what the rule should be?---Look, I haven't got, like your own copy, mine is blotted, but look, I haven't got a copy of the rules with me so - - -
PN1351
Yes. Now, you have associate membership and full membership, is that correct?---We have it within the rules but we don't have it in practical effect.
PN1352
The unlicensed people at Avalon, are they enrolled as full members or associate members?---Full members.
PN1353
Full members?---Mm.
PN1354
So they have voting rights?---Certainly. And they also have the right to be elected to council.
PN1355
HIS HONOUR: Was that change made after the order in 2001, do you now?---Sorry, which change was that, your Honour?
PN1356
The right to be represented on the council?---Yes, it would have done because the site had grown sufficiently.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1357
It would have been dependent on the 118a order?---Demographic, yes. Yes.
PN1358
When did you become federal secretary?---Actually in fact I took over on 1 January 2002 - no, 2001.
PN1359
2001?---Mm.
PN1360
So you became a federal secretary four days before the order came into effect?---Certainly.
PN1361
And Melhuish had moved on by that point in time, had he?---Correct.
PN1362
Now, did you hold positions in the - - -?---I did.
PN1363
Prior to that?---I was the assistant secretary at the time.
PN1364
You were the assistant federal secretary?---Correct.
PN1365
And how long did you hold that position for?---Approximately two and a half years.
PN1366
Now, after the order came out you gave consideration to changing the rules, didn't you?---The organisation did, certainly.
PN1367
Yes. And you went to - or you canvassed your existing membership base with regard to that proposition, didn't you?---Certainly did.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1368
Your existing membership base rejected the proposition?---No, no, we actually canvassed - we canvassed primarily the committee of management. The existing membership we consult with when we do rule changes. We advise them what those rule changes and given an opportunity to put input, but we as a committee of management, as I said to you earlier, major concern with it was is that if we were looking like we were changing our rules to be in the marketplace, so to speak, for members of other organisations, we would bring down the wrath of those organisations upon us and that was not something the federal executive was prepared to embark on.
PN1369
So it was a deliberate decision not to change your rules?---At that stage, yes.
PN1370
Can I ask, we heard evidence from Norris, is it?---Gary Norris?
PN1371
Yes?---Yes.
PN1372
Yesterday. That ALAEA has made deliberate decisions not to get involved in single bargaining units in the aviation industry. Can I ask why that decision was made?---Well, certainly at Qantas, not in the aviation industry in general, certainly.
PN1373
In that case I apologise. I think that was his evidence, at Qantas. Can I ask why that decision was made?---Look, that decision even predates my time as an official in the union, but from what I understand, the reasons taken was because the ALAEA was expected to participate in the bargaining process but other organisations would want to dictate the terms of that bargaining but our members would be expected to use their industrial muscle to carry the day in any dispute but would not be - you know, would be trying to be usurped by the views of other organisations.
PN1374
Your members industrial muscle, they haven't got a history of using that, have they?---Not recently, no.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1375
In fact I think the dispute, if you call it that at Avalon, with regard to the current enterprise agreement, a bargaining period wasn't even lodged, is that right?---You are probably correct, yes. Well, we don't lodge a bargaining period if we felt the employer wasn't bargaining.
PN1376
That is a fair comment. Now, were you involved in the negotiations personally?---One early meeting between senior officials of the company and the association just to set the framework. The day to day negotiations were done by Gary Norris and the representative committee.
PN1377
But you have meetings with the members and non members?---Sorry?
PN1378
You had meetings with members and non members?---Certainly, certainly.
PN1379
You say in your witness statement that you attended meetings. The key issue in dispute, the key issue for the employees at Avalon would be the issue of roster changes. You would agree with that, wouldn't you?---Certainly.
[12.10pm]
PN1380
It created quite a bit of heat, didn't it?---Certainly it was a topical issues at the meetings but it wasn't the only one.
PN1381
And the meeting you attended was after the enterprise agreement had been rejected at the first meeting. That is correct, isn't it?---No, no. I had done some - I would have to get my diary which I don't have with me, but it was in late July I did some pre ballot - the initial ballot meetings.
PN1382
Right. Did you go back after the first ballot had failed?---Certainly. Twice more, yes.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1383
So you had meetings after the first ballot?---Yes, certainly. Yes.
PN1384
And the issue of the shift roster changes was the key issue at that point in time, wasn't it?---Certainly because of what Forstaff had decided to do.
PN1385
Yes. The matter was before the Commission?---Yes.
PN1386
And Forstaff had indicated to ALAEA that if agreement couldn't be reached Forstaff would want the matter arbitrated. That is correct, isn't it?---Well, they had already made their mind up that the EBA had been rejected and it was now for them - they needed to from their position, press their roster changes and they were seeking an arbitration.
PN1387
Yes. And they were adamant that they were going to get it?---No, no. They were just adamant that they had an uncertainty of business that they had to go through the Commission process to see whether they could get that certainty.
PN1388
And at meetings of the members following the first rejection members were advised that the matter was before the Commission?---I think you will find - I again have to check my diary. I have got a feeling that may have been just prior to the Commission hearing. It had been Forstaff had called it on and I think it was the following that that the matter was and we were meeting to members to, one, to obviously explain the risks, but also seek advice about how they wanted us to proceed on the matter.
PN1389
As I understand the evidence that has been led and if I am being unfair I am sure one of my friends will jump up and correct me, as I understand the evidence that has been led at this point in time is that the ballot was rejected and the matter came back with the Commission and there was a conference with the Commission, that the Commission had issued a recommendation?---Certainly.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1390
And that recommendation called for further negotiation?---Certainly.
PN1391
That occurred?---That did, yes.
PN1392
Following that there were shift meetings?---Certainly, yes.
PN1393
Conducted by the ALAEA?---Yes.
PN1394
And then there was a ballot, a subsequent ballot?---Yes, certainly.
PN1395
Which was conduct I think on 7 and 9 September. Just bear with me. Sorry, 7 and 9 August - no, 8 and 9 September.
PN1396
HIS HONOUR: That was the first one.
PN1397
MR ADDISON: I do apologise. There was a second on 8 and 9 September at which the agreement was endorsed?---Yes.
PN1398
Now, the meetings you attended in that time line, notwithstanding - were you involved in the Commission proceedings?---Yes.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1399
And one presumes you were involved in the negotiations with Forstaff. Were you involved in meetings following those negotiations with the members?---Information meetings with the members, yes, certainly. Yes.
PN1400
Yes. And at those meetings you and Mr Norris advised the members that they should accept the recommendation?---Well, that was our recommendation to them.
PN1401
Yes. And that if they didn't they would have the roster changes imposed on them by the Commission anyway?---No, we didn't say it in those terms. What we advised the members, there was a risk that if Forstaff were successful before the Commission that would be the outcome.
PN1402
Yes. And the agreement was subsequently endorsed?---That is correct.
PN1403
Now, you would accept that the AMWU has members on the site?---They say they do.
PN1404
Mr Oliver's evidence on the first day and I don't think you were in the room, but Mr Oliver's evidence was that the AMWU has somewhere around 60 members on the site?---I doubt it but if that is what he says I can't refute it.
PN1405
Yes, okay. Now, the shift change issue revolved around an area known as hangar 4?---Yes, subsequent. Yes, certainly. Yes.
PN1406
That is where the heat was?---Well, yes, and I guess you are right because obviously the employer indicated they wanted to do different roster patterns in hangar 4 and that people were going to be selected from hangars 5 and 6 to end up in hangar 4.
PN1407
That is right. And people were not and still are not happy about the roster change. You would agree with that, wouldn't you?---Certainly.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1408
Yes. And there is a significant number of people employed in hangar 4. I think Mr Townley's evidence was 150 or thereabouts. Can you confirm that that is correct?---Well look, I believe that is the case, yes. Yes.
PN1409
Now, can I take you to DK3C which is an attachment to your - - -?---Yes, I have got that.
PN1410
That is the black notice I think we have been calling it - or I have been calling it. You would say that the issue that the AMWU was canvassing with the employees was in fact that roster change. It says in the second block in the main text I guess. It is not really a paragraph. Second sentence I guess:
PN1411
Vote no to roster changes which could affect your working hours and conditions and have a severe impact on your take home pay.
PN1412
That was reflecting those concerns, wasn't it?---I gather so, yes, certainly.
PN1413
Yes. And the employees who were required to change from the seven day by three week cycle to the two day by two week cycle would have in fact had a reduction in pay of something like 20 per cent. Do you agree?---Well, that is what has been stated, yes.
PN1414
Yes?---Yes.
PN1415
And that would be through a lost of weekend penalties one presumes?---Yes.
PN1416
So it would have had a severe impact on a significant number of people on the site?---Yes, but the EBA wasn't just as simple as a roster process. It was a process to manage it, manage it in a way which didn't harm people.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1417
I accept that. I accept that. I accept that the EBA, which is in evidence and it is your exhibit, it is ALAEA6, is a substantial document. I accept that. But by the same token the key issue was the roster changes. You would accept that?---It was one of the high keys but there was a number of key issues, but that was one of the more prominent ones, certainly.
PN1418
That is right. And we all understand that in all campaigns, in all arguments with regard to enterprise agreements certain things are the highlights if you like, they are the key issues?---But this wasn't like a typical EBA as I even had experience with where it was centred around one fundamental change. This was a culmination of many EBAs and previous undertakings between the employer that was rolled up and there was a host of key issues. One was changes to roster, man hours in roster banks and things like that for some people were very important.
PN1419
I think the evidence, and once again if I am being unfair I am sure my friends will jump up and tell me I am being unfair, but I think the evidence reverse, that in the main the agreement was done, when it went down in August the key issue at that point in time was roster changes?---When it went down I asked my representatives to have what we call toolbox meetings with our members and shift groups and they asked them to put - they put suggestion boxes to get reasons why the EBA had failed.
PN1420
Yes?---There was a whole host of reasons and I think it numbered in 80, 80 separate reasons why people had nominated why they voted against the EBA.
PN1421
Yes?---Yes.
PN1422
So you say that the employees at Avalon had concerns with all of the agreement?---Not all of it, aspects of it.
PN1423
But 80 separate aspects?---Yes.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1424
Okay. Now, can the witness be shown AMWU3, please?---Is that amongst this is it?
PN1425
Mr Kemp, that is a graph that has been developed to show the differences in a graphical form of wage rates from Hawker de Havilland, Astor being the top through to Forstaff being the bottom. Now, Mr Oliver has given evidence with regard to this graph and Mr Oliver says he believes that it is a true representation of the various wages in the aerospace industry.
PN1426
MR CHIN: I object to that. Mr Oliver's evidence in relation to this graph was based on no first hand or direct knowledge as to the statistical basis for it, or any factual basis for the graph's representation. Now, the way in which the question has been put - - -
PN1427
HIS HONOUR: Perhaps, Mr Addison, put your questions about what is in the document. I don't know that you can really traverse what Mr Oliver had to say about it usefully to the witness without getting into a pretty protracted argument.
PN1428
MR ADDISON: Yes, yes.
PN1429
Mr Kemp, whilst there is no lines going across to the dollar figures, I put it to you that that is a reasonably accurate snapshot of the current state of wages within the aerospace industry?---You may. It needs to be qualified based on a person's years of services because they are all on incremental structures that go up with time served. So Forstaff is a fairly new site, Qantas is a long term site, I would imagine that the typical AME has been at Qantas a lot longer than he has been at Forstaff and therefore he has had more opportunity to go up the incremental bands.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1430
So you say, do you, you say that the information could well be accurate but it is based on a justifiable proposition?---I don't know how this is arrived at. What I know is the rates of pay within the EBA are the Qantas rates of pay that are applied and as I said, that is what the parity is all about, ensuring that the AME classifications are getting paid the same rates of pay as the Qantas rate AME classifications under the Qantas EBAs. I don't know how this is arrived. This is, you know, lacks to me to have sufficient information for me to rely upon it.
PN1431
Have you seen that document before by the way?---No, I haven't.
PN1432
You as federal secretary of the union would accept that the union has a role in getting the best deal it can for its members?---Certainly.
PN1433
And in reflecting the concerns and views of its members?---Yes, attempt to, certainly.
PN1434
And the concern - no, I withdraw that. Now, you say in paragraph 10 of your witness statement that leading up to the ballot the AMWU sought to influence the result of the ballot whilst being excluded from the site by the order?---Certainly.
PN1435
You say the AMWU sought to disrupt the site?---Yes.
PN1436
And the vote by circulating false and misleading information and encouraging employees to vote no for acceptance of the proposed EBA?---Correct.
PN1437
Now, I put it to you that the information that was being circulated was not false and it was not misleading. The information that was circulated on the site clearly reflected the concern of at least the AMWU members on the site that the roster changes were going to result in a significant decrease in wages. That is correct, isn't it?
**** DAVID GERARD KEMP XXN MR ADDISON
PN1438
MR CHIN: I object to the question, your Honour. If Mr Addison is referring to specific representations which he is putting to the witness are manifestations of concerns of some of the employees then those representations should be put to Mr Kemp. Put to Mr Kemp in that global manner, the witness is unable to discern what representations he is being asked about.
PN1439
HIS HONOUR: Yes, the question was rather rolled up, Mr Addison.
PN1440
MR ADDISON: Sorry, your Honour.
PN1441
HIS HONOUR: You had a multiple question rolled up.
PN1442
MR ADDISON: Yes, yes. I accept that, your Honour. I will try and rephrase that.
PN1443
I have already taken you to DK3C. Now, DK3C deals with roster changes. Yes?---Yes.
PN1444
And it deals with the fact that if the rosters were implemented that would have an impact on working conditions and take home pay?---Certainly.
PN1445
And you agree that that is correct?---But it also deals with - and I am not referring to that. I am referring to where vote no to trade offs that undermine your conditions of employment. That seeks to mislead the workforce on the site.
PN1446
Well, would you not suggest that agreeing to a roster change in return to an increase in the base rate constitutes a trade off?---It wasn't how the structure. What the roster change was, if we go back, was Forstaff was pressing a parity dispute under the previous agreement to the Commission. The parties had decided to try and resolve the issue without the Commission being required to arbitrate.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1447
I accept that?---By rolling into an agreement.
PN1448
I accept that?---Yes.
PN1449
So the parties were seeking to reach an agreement on roster changes?---Prior to the EBA coming into force.
PN1450
Well, maybe prior, maybe not, that is irrelevant, Mr Kemp. The reality is the company wanted a change and the change was a change to the roster system?---Yes, but that wasn't read in isolation by people, that one statement. It was the whole pamphlet was read together.
PN1451
Regardless. The roster change was one of the issues in debate during the enterprise bargaining negotiations?---Certainly.
PN1452
And the ALAEA at the end of the day reached agreement with the company about that roster change?---Certainly.
PN1453
Yes?---Well, not about the change but the process about how the employer sought to implement new rosters.
PN1454
Yes?---Yes.
PN1455
There was an agreement?---Yes, certainly.
PN1456
There is no arguments about that, is there?---Yes, well, we didn't agree to a change per se. We agreed to a process.
PN1457
So it is agreed now between the ALAEA and the company that there will be a change in rosters?---No, there is not.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1458
From the three week by seven days to the five days by two weeks. That is agreed?---And it is agreed there is a process by which if they choose to implement that roster.
PN1459
Indeed?---Yes.
PN1460
Indeed. There was a process - - -?---What we have agreed to is a process.
PN1461
That is right. So that is agreed. And in return for that agreement and some others, I accept, an enterprise agreement was eventually struck?---Well, I wouldn't put it in those terms but that is what you are saying, yes.
PN1462
Yes?---You are saying that in return. It wasn't a direct quit pro quo.
PN1463
Now, can that not validly be saying it was a trade off for the wage increase? So the vast majority of people get the one and a half per cent and 150 lose 20 per cent - sorry, they don't lose 20 per cent because they get one and a half, so they are losing 18 and a half percent. That is trade off, isn't it?---I guess if you want to put it in those terms, yes, certainly.
PN1464
Yes. So DK3C is in fact not false or misleading. It is accurate. It is an accurate description and an accurate portrayal of what is going on?---I don't believe so. I believe it was emotive, it was designed to cause people on the site fears. It is designed to suggest to people that they were going to immediately lose significant penalties when in fact it was a small group of people and people understood. That was part of the information process that we did.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1465
Yes?---Most of the people would be volunteers to hangar 4, so people that wanted to change their roster to get off weekend work and although there always the likelihood and although there was always the likelihood and it was always made perfectly clear to our members and the non members on the site that there may have been some people conscripted, the agreement had a process which far and exceed the arrangements in place under the Qantas agreements which was conscription after seven days notice. It was a process where people had a right of appeal against that. So this was suggesting that people's rights would just be totally undermined and taken away from them.
PN1466
Mr Kemp, I am not suggesting for one minute that you have done anything wrong. We all are faced with difficult decisions that we have make in this game, all of us. We all come across situations that require some negotiation and some hard choices. I accept that. I am not pointing the finger at you. I am simply saying to you that DK3C accurately represents the situation as it was occurring and at least some of the employees saw it. Whether the group was a small group or a large group, I would have disagree with you, Mr Kemp because I think 150 people is a large group?---I have a folder in my office which has 22 grievances which is the process of the agreement for people that are dissatisfied with the change and of that half of those grievances are for the salary maintenance component. They are not aggrieved about the roster change. They are just aggrieved that they wish to get the salary maintenance provisions that are in the agreement to protect them for six months. There is approximately 10 people out of that 150 who have registered an aggrievance with us and some of those are non members of our organisation. So I don't believe that that has had a major impact and in fact I believe that if you are going to call it a trade off for the EBA, the members are served ..... by the agreement because the parity arrangement is built into it.
PN1467
And the ALAEA doesn't have a policy about trade offs, do they? You don't mind trade offs in terms of negotiating an agreement?---We are a pragmatic organisation, yes.
PN1468
Yes. Whereas you know of course that the AMWU for instance does have a policy about trade offs?---I know you tell me they do. Why would I know their business?
**** DAVID GERARD KEMP XXN MR ADDISON
PN1469
Well, you do work with the AMWU and Qantas. Yes?---Not at all at Qantas but I have worked in the previous organisations.
PN1470
Yes. And you work with the AMWU on every aerospace site except Avalon, don't you? When I say you I don't mean you personally, your organisation?---Our organisation, yes.
PN1471
Yes. You do, don't you?---Yes, and I have worked with them intensively through Ansett and I saw them doing many trade offs during the Ansett process so I can't say, you know, they don't have - they follow their ideology to the letter because I have seen during the administration of Ansett, trade off arrangements in order for the common good of the ex Ansett people.
PN1472
That may or may not be the case, I don't know. But you, the ALAEA, at every aerospace site, apart from Avalon, effectively work with the AMWU, the ETU, the AWU and probably the NUW and the TWU. That is correct, isn't it?---Outside of Ansett I don't think we do work with those organisations and Ansett is almost - no. We certainly don't work with them at any of the Qantas regionals, although they have come on site at one of the Qantas regionals in recent times. I have never, other than as I say where we had a single bargaining unit in place at Ansett where we actually did have them - in the - well, we were on the SPU together, yes, we did, but since Ansett's demise, no, I can't think of a time we worked with the AMWU.
PN1473
Well, can I put it in a different way. You have members at Qantas and the AMWU have members at Qantas?---Certainly.
PN1474
As do the AWU?---Certainly.
PN1475
As do the TWU?---Yes, certainly.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1476
And the organisations co-exist?---Certainly.
PN1477
In Qantas and they co-exist without any difficulties, or any substandard difficulties. Obviously there is the day to day difficulties?---Certainly.
PN1478
Yes?---Certainly.
PN1479
There are no demarcation issues at Qantas?---Not that I am aware of.
PN1480
And the ALAEA recruits within its constitutional coverage at Qantas?---We do have members outside of what you call our constitutional at Qantas, yes.
PN1481
And the AMWU recruits within its constitutional coverage at Qantas?---I believe so, yes. I would accept that.
PN1482
As do the other unions?---I would accept that, yes. I can't confirm it but I would accept it.
PN1483
And that has been the case for a significant period of time?---Certainly.
PN1484
And at Qantas the AMWU pursues certain agenda with regard to trade offs as it was pursuing at Avalon?---that may be the case but I don't work with that organisation in any official capacity so I don't know.
PN1485
Your Honour, I note the time, it is 25 to one. I think you have indicated 12.30?
PN1486
HIS HONOUR: Yes.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1487
MR ADDISON: I am happy to break at this point in time and come back after lunch.
PN1488
HIS HONOUR: Right. How much longer are you likely to be?
PN1489
MR ADDISON: I wouldn't have thought too much longer, your Honour, maybe half an hour.
PN1490
HIS HONOUR: Very well. We will adjourn until - was it, 12.30, until 1.30. Is that appropriate? Will that be enough?
PN1491
MR ADDISON: That is fine. Thanks, your Honour.
LUNCHEON ADJOURNMENT [12.35pm]
RESUMED [1.34pm]
DAVID GERARD KEMP:
PN1492
MR ADDISON: Mr Kemp, you released or caused to be released a circular on 24 July 2003 to the Avalon employees, a three page circular. Are you aware of that?---Look, if it has got my name on the bottom it would have been run past me, certainly.
PN1493
It has your signature on the bottom?---Okay, certainly.
PN1494
David Kemp, federal secretary. The contents of the leaflet:
**** DAVID GERARD KEMP XXN MR ADDISON
PN1495
It is the ALAEAs view that the present single union arrangements work well at Avalon and although disputes and debate arise between the company and the ALAEA can at times be robust, the single union site approach in our view provides the environment needed for continued growth, stability and job security.
PN1496
Is that your view?---It certainly is.
PN1497
So you view Avalon as a single union site?---Well, at that point it was. By this point it still is until the 118A is removed.
PN1498
Okay. Can the witness be shown A4? I think it is A4, the leaflets, the three leaflets that I handed up this morning.
PN1499
HIS HONOUR: AMWU - sorry, leaflets. It is AMWU4, yes.
PN1500
MR ADDISON: No, the ones I handed up this morning. Yes, that is them. I only want to take you to one document there and that is your own. It is the front one there?---Okay.
PN1501
Now, the top of that leaflet says:
PN1502
How to vote for the ALAEA and other unions except the AMWU.
PN1503
That is correct, isn't it?---That is certainly what it says, yes. Yes.
PN1504
And you say in this leaflet that a vote yes would not preclude other unions. Do you stand by that as well?---A vote - you mean - you are talking about a vote yes for the ballot?
**** DAVID GERARD KEMP XXN MR ADDISON
PN1505
Yes?---Yes, certainly.
PN1506
Well, doesn't that contract your earlier statement on 24 July with regard to single union coverage?---Well, that was our position. Our position still is that the site - we were trying to encourage our members to vote for us in this ballot. Now, the ballot question came down as you know and it is not a question about whether you vote the ALAEA or the AMWU. It came down to whether you vote for the ALAEA as a single union agreement or not as a single union site. So we just promoted to our members to vote yes to support.
PN1507
Well, that is not quite correct, is it? It is a single primary union?---Well, that may be the case.
PN1508
Yes?---It is a definitional issue then.
PN1509
And indeed that was the question that was put, wasn't it?---Mm.
PN1510
Do you approve the LAMEs continue for a further three years from 5 January to be the single or primary union?---But I think those words came from the original order, didn't they?
PN1511
They did indeed?---Yes.
PN1512
They did indeed. Now, your how to vote could be seen, I put it to you, as misleading given your position?---I don't believe so. I mean we didn't structure the ballot. Certainly we had to try and encourage people on the site, whether they be members or not, to support us in that ballot and it would be foolish of us to put out something which was not clearly annunciating our position.
PN1513
Right. Now, the corollary of this document, you accept that a vote no accepts representational rights for the AMWU?---No, I don't accept that. It allows other organisations on site.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1514
A vote no is what I said, in the ballot?---Certainly, yes.
PN1515
Yes?---Certainly, yes.
PN1516
Yes, indeed. Now. presuming the AMWU - no, I withdraw that. Given your position on your how to vote, you are aware, aren't you, that the AWU have got members on site?---I am aware of that, yes.
PN1517
Now, given the fact that the AWU have got members on site, given the fact of your public position in terms of your how to vote, if the AWU were to seek to become a respondent to the certified agreement what would ALAEAs position be?---To oppose it.
PN1518
You would oppose?---Correct.
PN1519
Okay. So you are happy for the AWU to have members on site but not to have rights under the EBA, is that correct?---No, I am not happy to have members on site but I can't stop a person wishing to belong to that organisation.
PN1520
Yes. Indeed you can't stop a person wishing to belong to any organisation?---Correct.
PN1521
Whether it be the boy scouts or a union. That is right. So similarly one presumes if the AMWU is successful in this application you would oppose AMWU becoming a party to the agreement?---Certainly.
PN1522
Now, can I ask, do you still get paid your 4 per cent from Forstaff?---No.
PN1523
No, that arrangement has ceased, has it?---That ceased at the end of last year.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1524
End of last year. So you no longer provide services to Forstaff in terms of recruitment and I think it was consulting services?---No, that is correct, although the agreement does allow our representatives to be involved in selection arrangements.
PN1525
Is that recruitment or is that selection for promotion?---Selection for courses and things like that.
PN1526
For courses and stuff?---Yes.
PN1527
Okay. So not in terms of new employees. No, okay. Just bear with me. Now, you say in paragraph 25 of your witness statement that you opposed the lifting of the order and you say that:
PN1528
The AMWU would actively continue and increase its disrupting and intimidating behaviour as evidenced above.
PN1529
Now, I presume from that you mean that the AMWUs disrupting behaviour is expressing concerns of the workforce?---It certainly concerns my members.
PN1530
Yes. I presume for instance DK3C is part of what you deem to be disrupting behaviour?---Well, that is part of it but it is not all of it.
PN1531
I want to take you to paragraph 26 of your witness statement. You say:
PN1532
The result of the ballot conducted by the Commission in compliance with the 118A order did not ask the question of the workforce whether they would allow the AMWU on the site.
**** DAVID GERARD KEMP XXN MR ADDISON
PN1533
You are not seriously suggesting, are you, that the employees didn't know what they were voting for?---I think the employees on site may have had other views about other organisations. That is why they may have expressed a view about not having a single organisation as the ALAEA remain as the single organisation.
PN1534
Well, you have AMWU4 in front of you. They are three leaflets, one from you, one from the AWU and one from AMWU. I put it to you that they clearly lay out the position and that the employees clearly knew what they were voting on and clearly knew what a vote yes would mean. Even evidenced by your own document and what a vote no would mean?---Yes, that is correct.
PN1535
That is correct?---But the choice was a choice between the ALAEA remaining single or any other organisation. It wasn't just between us and the AWU.
PN1536
That is not true in your own document, is it, Mr Kemp, because your own document suggests, does it not, that a vote yes would allow ALAEA and any other union, except the AMWU, to have access to the employees and representational rights on the site? Your own document says that, Mr Kemp?---Certainly.
PN1537
You agree?---Certainly.
PN1538
So people knew what a vote yes was and what a vote no was and a vote no was to restore AMWU representational rights. That is correct, isn't it?---Correct.
PN1539
And the vote was clearly no?---Certainly.
PN1540
**** DAVID GERARD KEMP RXN MR CHIN
PN1541
MR CHIN: Now, Mr Kemp, you were asked some questions in relation to the rules of the ALAEA. Can I show you this document and I am sorry, your Honour, I don't have a copy of it. I will just show Mr Addison. I am handing to you a letter with a copy of the ALAEA rules behind it. I really only wish for you to look at the letter?---Certainly. Thank you.
PN1542
Can you identify that document?---Yes, it is a letter from Terry Nasiesis, Deputy Industrial Registry - or a letter to Terry from myself seeking to make alterations to the rules.
PN1543
And were the union's rules altered?---Certainly were.
PN1544
And in what way?---At that particular time it was to do a number of minor alterations but one was to introduce a new councillor's position for Forstaff.
PN1545
And when was that rule change effected?---According to this, 6 July 2001, and just to add to that, we just conducted another rule change which is the new version of the rules which was downloaded which has now put a second Forstaff elected official into the council because their numbers have grown sufficiently to warrant that.
PN1546
PN1547
MR CHIN: Thank you, your Honour.
PN1548
HIS HONOUR: Do you want the rules back or not?
**** DAVID GERARD KEMP RXN MR CHIN
PN1549
MR CHIN: I think the rules are referred to in the letter.
PN1550
HIS HONOUR: Yes, I see.
PN1551
MR CHIN: Could I trouble the Commission for copies at an appropriate time or to have the exhibit uplifted so that can we make copies?
PN1552
HIS HONOUR: Very well.
PN1553
MR CHIN: Thank you, your Honour.
PN1554
Mr Kemp, you were asked about the result of the unsuccessful ballot in respect to the current certified agreement, I think in August this year, and in one of your responses you said that there was some measure of feedback obtained by you from members as to why the EBA had been voted down?---Correct.
PN1555
In one of your answers I think you said that there were about 80 responses and that there were various reasons given. Can you tell the Commission what some of those reasons were?---Well, off the top of my head there were things like the practical application of the overtime bank because there was changes to that. People had misunderstood that. There was a bonus system built into the agreement that was to apply once the agreement was certified and people had misunderstood how that was to work. So a lot of the issues were issues of clarification and although we ran through those with Forstaff at those subsequent negotiations after the matter was re-listed before the Commission and sought from Forstaff clear annunciation of what the issues were, or you know, clear annunciation of how the parties would apply those items and then that was communicated at the subsequent meetings to the members.
PN1556
Yes. I think in your statement also at paragraph 17 you make some observations there about feedback obtained from employees in relation to the vote?---That is correct, yes.
**** DAVID GERARD KEMP RXN MR CHIN
PN1557
Were there any other reasons conveyed to you in relation to the conduct of the AMWU?---Certainly. There was a lot of feedback from the floor and that is where a lot of these issues had arisen, because people had heard two conflicting views about what they meant about the other organisation and through their people on the floor had been, in my view, spreading untruths with our members and other people on the site about what the various implications of the draft EBA or the in principle EBA meant and that is why we had to seek the clarification to ensure that, you know, at the subsequent meetings we could explain clearly what the intention of the parties were.
PN1558
And did you do that?---We did.
PN1559
Can I show you this document. This is LAE6, a copy of the Jobs Australia Avalon Site Agreement 4. Can I ask you to turn to page 25 of that document?---Mm.
PN1560
And in particular clause 9.1.3 - sorry, I withdraw that. Clause 9.3.1?---Yes, certainly.
PN1561
Now, you recall you were asked some questions in cross-examination about the change in rosters?---Correct.
PN1562
Can you explain to the Commission how this clause related to the issue of the change in rosters?---Well, I am not sure that I understand the question.
PN1563
Yes, I withdraw that, that was unclear. Did the agreement - the union had a dispute with Forstaff in relation to the issue of changing rosters, did it not?---Correct.
PN1564
And was this clause the outcome of the resolution of that dispute?---It certainly was.
**** DAVID GERARD KEMP RXN MR CHIN
PN1565
And in your view does this clause deal with the process by which rosters may be changed or does it deal with the actual outcome of any change in rosters?---It deals with the process that the parties undertake once they - or if the employer embarks on a roster change.
PN1566
Are you aware of what the company's position was in relation to its right to change rosters under EBA3?---Its position was that parity was a two way street and it sought the right if it had to meet Qantas on terms and conditions of remuneration and employment benefits, that it had the right to import provisions of the Qantas agreements that gave it the right to say change rosters and under Qantas agreements they have the right with seven days notice to change roster.
PN1567
And the company was asserting that right?---That is correct.
PN1568
And it was asserting that right on the basis that it could make that change unilaterally?---Correct.
PN1569
What is the intended effect of clause 9.3.1 in relation to the assertion of that right?---Well, I guess the intended effect is to give the opportunity for the parties to work through the issues and attempt to resolve them in a consultative way. Obviously the employer still has the right to fix ordinary working hours but there is an appeal and a process involved in the agreement that gives people the right to, you know, if they are affected by that decision, to deal with it.
PN1570
Can that result in any way be termed a trade off?---Well, I didn't accept that it is a trade off. You know, my view was that it is a significant uplifting of conditions say over what happens at Qantas today.
**** DAVID GERARD KEMP RXN MR CHIN
PN1571
You were asked some questions in relation to paragraph 25 of your statement and about what you were referring to in terms of your reference to disrupting and intimidating behaviour by the AMWU and I think you were taken to one of your annexures. Would you care to elaborate for the Commission as to what you did mean by your reference to the disrupting and intimidating behaviour of the AMWU in that paragraph?---Well, you know, in regard to the lead up to the EBA ballot there was a significant amount of misinformation released on site both verbally and with various hand outs that I say are inaccurate. Even post the ballot I still on a daily basis get, when I am down at Avalon, get fronted by members about why the AMWU is allowed to do what they are doing. Just last week I found yet again AMWU had forced their notices into the ALAEAs noticeboard through the glass window to suggest that they were, you know, position of the ALAEA or put them in there to try and put their position on our noticeboard. As I said, my experience, I had attempted to enter the site and leave the site on a number of occasions and I had to be stopped because AMWU people were at the gates of the site and, you know, they were attempting to stop Avalon employees access the site and hand them literature and ultimately I understand that the employer put in security people there to regulate their access to the site because of these sort of behaviour. So it was quite clear to me that, you know, the organisation was acting in a way which was, you know, fairly overt fairly obviously, out there to disrupt both the EBA and rubbish the good name of the ALAEA with its members.
PN1572
Mr Kemp, you were asked about your view about what was understood by the employees at the site as to the effect of the October ballot in relation to the continuation of the demarcation order. Do you recall those questions? What I want to ask you is this, did you seek or receive any feedback from your members or other employees at the site about the result of that ballot?---Yes, I did.
PN1573
And what was the nature of the feedback?---A number of my members were concerned because they had been not allowed to vote in that ballot because of the date the rolls closed. There was a group of employees that had started in the period of time between the end of the role - or between the point where the rolls were declared closed and the ballot was held, so there was a view that by at least two intakes of employees, and you would have to ask Forstaff how many people that was, that they didn't get the right to participate in the vote.
**** DAVID GERARD KEMP RXN MR CHIN
There was also we had some librarian people, members from the librarian that were eliminated and they felt that, you know, their working career was affected by any decision and they should have had the right to vote and they weren't allowed to. There was also a view expressed to me by some of the members that were from a migrant background expressed by the reps that they had misunderstood the question in the vote, that they thought by voting yes that that meant yes, you were going to allow all other organisations on the site, but that was only daily expressed to me by reps that, you know, they felt that people had misunderstood the ballot, particularly people who had, you know, maybe English wasn't their first language. So those sort of issues and, you know, people who expressed the view that they have just been a general disruption to the process.
PN1574
Thank you, Mr Kemp. No further questions.
PN1575
HIS HONOUR: Yes, thank you, Mr Kemp.
PN1576
MR CHIN: Might the witness be excused?
PN1577
PN1578
MR CHIN: That completes the evidence of the ALAEA.
PN1579
HIS HONOUR: Yes. Where are we then, simply adjourning or is there anything further?
PN1580
MR ADDISON: I would have thought, your Honour, we are simply adjourning to the date in Sydney.
PN1581
HIS HONOUR: I will adjourn the further hearing until 10.15 am on 12 December in Sydney and I order transcript to be produced as soon as practicable. The Commission will adjourn.
ADJOURNED UNTIL THURSDAY, 11 DECEMBER 2003 [1.59pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
DOUGLAS WARRINGTON TOWNLEY, SWORN PN897
EXAMINATION-IN-CHIEF BY MS McKENZIE PN897
CROSS-EXAMINATION BY MR CHIN PN905
CROSS-EXAMINATION BY MR ADDISON PN925
EXHIBIT #AMWU4 BUNDLE OF DOCUMENTS PN954
EXHIBIT #AMWU5 AMWU NOTICE PN981
EXHIBIT #AMWU6 LETTER FROM MR LIVER TO MR TOWNLEY, DATED 14/10/2003 PN1054
WITNESS WITHDREW PN1211
DAVID GERARD KEMP, SWORN PN1277
EXAMINATION-IN-CHIEF BY MR CHIN PN1277
CROSS-EXAMINATION BY MR ADDISON PN1310
RE-EXAMINATION BY MR CHIN PN1541
EXHIBIT #LAE7 LETTER FROM MR KEMP PN1547
WITNESS WITHDREW PN1578
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