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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
(ADMINISTRATOR APPOINTED)
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N 689
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
AG2004/2662
APPLICATION FOR AGREEMENT ABOUT
INDUSTRIAL DISPUTE (DIVISION 3)
Application under section 170LS of the Act by
United Firefighters' Union of Australia-West
Australian Branch and Another for certification
of the Western Australian Fire Service
Certified Agreement 2004
PERTH
2.08 PM, MONDAY, 5 JULY 2004
PN1
MR J. WALKER: I appear on behalf of the United Firefighters' Union of Australia and appearing with me is TONY DREWETT, who is the branch secretary.
PN2
THE DEPUTY PRESIDENT: Yes, thank you.
PN3
MS G. HUSK: If it please the Commission my name is Glenda Husk and with me DARIAN FERGUSON, appearing on behalf of the Fire and Emergency Services Authority of Western Australia, thank you.
PN4
THE DEPUTY PRESIDENT: Yes, thank you.
PN5
MR K. TRAINER: I seek leave to appear on behalf of those seven firefighters nominated in the notice of appearance filed in the Commission on Friday of last week.
PN6
THE DEPUTY PRESIDENT: On what basis Mr Trainer do you seek - - -
PN7
MR TRAINER: On the basis that the people who have - who are nominated and there are nine rather than seven, seek to object to the registration of the document on the basis it does not comply with the statutory requirements for you to be satisfied and proceed to registration. You will, sir, have already had before you a significant number of letters dealing with - and I understand it is certainly more than the nine that I represent, are seeking to express a view about the registration. Those views, I understand, to be contrary, but I seek leave to put before you, sir, material we say that leads inevitably to the conclusion that the certification should not proceed.
PN8
THE DEPUTY PRESIDENT: Yes. Your capacity to intervene on behalf of these individuals, how does that capacity arise?
PN9
MR TRAINER: Well sir they are people who are affected by the document. They are people who are members of the United Firefighters Union and as such should the document be registered it will govern and affect the terms of their conditions in terms of employment and in each instant they are, as I say, people affected by the document.
PN10
THE DEPUTY PRESIDENT: So you are also seeking leave to appear for those individuals are you?
PN11
MR TRAINER: To the extent that leave is required sir, yes.
PN12
THE DEPUTY PRESIDENT: Why would it not be required?
PN13
MR TRAINER: Well I assume it is required, I'm not suggesting otherwise.
PN14
THE DEPUTY PRESIDENT: Why should that leave be granted?
PN15
MR TRAINER: On the basis, sir, that these people have a genuine interest in the matters that are before you and seek to have that articulated in a manner that they feel best serves their interests and puts it best before you, the people who represent the other points of view, of course, are well versed in the proceedings before this Commission and I see no statutory prohibition for - that prohibits people engaging services of an independent party for the purpose of putting their point of view before you sir.
PN16
THE DEPUTY PRESIDENT: Yes. Ms Husk, or Mr Walker, do you have any comments on Mr Trainer being given leave to appear and secondly the persons he represents being given leave to intervene?
PN17
MR WALKER: On the first point I presume he is a paid advocate, he is a paid agent is that the situation?
PN18
THE DEPUTY PRESIDENT: I don't know.
PN19
MR WALKER: If - we don't oppose representation, we have got some submissions about intervention, but yes we don't oppose Mr Trainer's appearance as a party.
PN20
THE DEPUTY PRESIDENT: Being given leave to appear for those individuals so you don't oppose his being given leave to appear, that is what you are saying, yes?
PN21
MR WALKER: Yes, well the Act is silent on - in section 42 your Honour, there really it only refers to parties, being organisations or employers, or employer organisations where - but there is a provision if there are special circumstances, you have discretion to grant leave and I guess one of those conditions is that the people that Mr Trainer is representing perhaps couldn't represent themselves, so on that basis we are not opposing him appearing as such.
PN22
THE DEPUTY PRESIDENT: Yes. Ms Husk?
PN23
MS HUSK: FESA also does not oppose Mr Trainer appearing in this matter.
PN24
THE DEPUTY PRESIDENT: Okay. What do you say about the intervention generally?
PN25
MR WALKER: Deputy President we would like to make a number of points for your consideration in respect of the request for intervention. Intervention in itself is not an automatic right and persons seeking intervention must substantiate sound reasons as to why intervention is appropriate before the Commission exercising in - you know the Commission exercising its broad discretion in these matters and it is certainly our submission that certainly from what I've heard from Mr Trainer, this hasn't been done as yet, firstly the - I guess the issue about intervention we haven't been served as a party of an intention to intervene. Only that there were rumours in the work place that we made inquiries with your office and ascertained that some letters had been sent to the Commission, but we haven't actually been served and some of the information that your office provided the parties, one of the matters was a form R22 Notice of Representative Appearance, we make no comment on the form itself, other than to suggest that it is quite an inventive application. Where form R22 was properly used was for unfair dismissals, cases before the Commission under rule 39, there is certainly - under rule 39(3) there is a requirement for service of other parties.
PN26
Now that certainly didn't happen in this case and I guess it goes to some of the genuineness of the intervention, but you know we have not been afforded any information about where perhaps the certification won't meet the statutory requirements, yet we've had a sort of formal - a sort of semi-formal application to appear and our submission is that failure to provide some procedural fairness goes to the genuineness of, in this case, the non-party. I seek leave to table an exhibit, if I may. Now, this document titled, UFU Members, has been circulated in the workplace. It is actually signed by the members submitting to the AIRC, Thursday, 1 July, so I am assuming that that is something broadcast by the nine members who have sought Mr Trainer to represent them.
PN27
Now, I raise this because it might lead us insight into the reason why intervention is there. Certainly in the second paragraph, I know it is hard to read, but in the second paragraph:
PN28
Those involved in the process are in doubt and question the process.
PN29
This sort of wrongly suggests that there is an appeal process that is available and certainly, it wrongly suggests if you oppose an agreement in a ballot, that you have an appeal avenue to come along and then spoil for another vote or another - or to have the matter overturned. And you see down there, there is three dot points and suggestions to what could be the outcome in the justification of the intervention. And certainly the first two are certainly why we are here. It is either going to be certified today or you are going to dismiss our application.
PN30
But the third point, I think, is a bit wishful that they are looking for a new ballot, might be held into the agreement. And the fourth paragraph starts with:
PN31
The main reason for the objections are to attempt to protect the UFU members (us) from experienced negative reducing effects of integrity to our workplace which have been threatened to be introduced through inappropriate behaviour during the facilitation to the EBA process.
PN32
Well I am not quite sure what that is about but it is certainly not about section 170LT or section 170LU, the things that we are here to deal with. And this application, and this is not the forum to raise issues going to what led up to the - during negotiations or what led up to the ballot being taken, other than those matters that are confined to the Act.
PN33
So, you know, for this reason, we would caution the Commission in exercising its powers of intervention in this matter. One of the primary authorities on application of the Commission discretion in respect to the general prevention provided under section 43 of the Act is, the High Court decision, Queen v Ludeke ex parte Custom Officers case. The judgment sets out the principles of intervention and how the Commission ought to exercise its wide powers of intervention.
PN34
Gibbs CJ made the point, and I quote:
PN35
The rules of natural justice do not require the Commission to allow a person who is not a party to proceedings ...(reads)...is desirable and the person or organisation should be heard.
PN36
The question for the Commission is, will an order of certification of this agreement adversely effect the rights or disadvantage the nine employees. Our submission is there is no disadvantage and if certification is successful, the agreement, which is quite advantageous, will considerably the 895 employees covered by the agreement. The other issues that must be considered when applying discretion in the nature of proceedings before the Commission in the event intervention is granted, whether the intervention should be limited to only those matters concerning the certification or the proceedings that are on foot.
PN37
This is, in this case, it would only be those matters that you have to consider in section 170LT and 170LU. And that is the basis of our application to meet that requirement to the Act and have the agreement certified. In that same Customs decision, Dean J:
PN38
The principles of natural justice would ordinarily require the Commission to extend to such applicant an adequate opportunity of being heard on the questions. The questions being, whether or not intervention should be granted. Whether any such leave be subject to limitations and whether or not any leave to intervene which has been granted should be withdrawn or subject to limitation.
PN39
And his Honour continues:
PN40
The Commission with not, however, be acting in breach of those principles if having decided that a non party should be refused leave to intervene or that such leave should be subject or subjected to particular restrictions.
PN41
So what he went on to say is, certainly in the Customs case, is that where it was part heard on one occasion and again part heard on another, the wide powers that you have can restrict the level of intervention. And this issue is important for us because if, as I have read into the letter that was sent to the Commission by Mr Trainer, it appears they want to raise a whole range of things and call witnesses that don't relate to section 170LT or LU. And I don't now that because Mr Trainer hasn't made it very clear of what, where those grounds or what sort of disadvantages are going to be applied to these nine employees.
PN42
Sir, just in conclusion, in considering the - to provide - I thought I had missed a page. Just the failure to provide any notice in detail of objection to the party goes to the behaviour, doesn't appear to be one that has genuine concerns about the requirements of the Act but more about an opportunity to have another go at the ballot. And the lack of genuineness, the intervener fails to properly substantiate how they are directly effected and how the certification order will adversely effect any rights or obligations they have.
PN43
Your Honour, in the event intervention is granted, that it be properly limited to those matters under section 170LT and 170LU. And the Commission properly refrain from hearing any issues not appropriately part of the certification process. Thank you.
PN44
THE DEPUTY PRESIDENT: You say LT and LU. Any particular parts of those sections?
PN45
MR WALKER: Well, your Honour, of course they go to the very requirements that you will have to deal with today. That is, the satisfactory of the no disadvantage test. The agreement as being adopted by a large majority of persons employed at the time who will be subject to the agreement. The application was filed within the 21 days. The agreement has a disputes settling procedure in clause 9. The agreement has a 2 year term and a fixed expiry date. Those matters that you have to be satisfied with before certification is granted.
PN46
THE DEPUTY PRESIDENT: Yes. Thank you. Ms Husk, do you have any comment about the intervention being sought?
PN47
MS HUSK: Sir, FESA also has not received any notice or information about the intervention other than that provided by your office late last week. FESA does not believe that there is a need for intervention. This is an application to certify an agreement by consent between the union and the employer. Both parties believe all appropriate processes have been followed.
PN48
The union itself is here to represent its members, both during the negotiations and also here today to certify the agreement. If intervention is granted, I agree with the submissions made by Mr Walker, that we request it be limited to the matters relevant to the certification process only. And that is our submission. Thank you.
PN49
THE DEPUTY PRESIDENT: Mr Trainer, what are the assertions you have with respect to this matter that you seek intervention for?
PN50
MR TRAINER: Yes, certainly, sir. Before I go to that, the letter headed up, UFU Members, is not a document which I am familiar in the sense that I was either the author or had an input. Sir, what we say in respect to the issues that - - -
PN51
THE DEPUTY PRESIDENT: But you are not disputing that the people you represent may well have?
PN52
MR TRAINER: I am not in a position to comment in either direction, sir, I don't know who the signatories were.
PN53
THE DEPUTY PRESIDENT: Yes.
PN54
MR TRAINER: So I just can't advance that for you.
PN55
THE DEPUTY PRESIDENT: Yes.
PN56
MR TRAINER: It was certainly nothing that was done, if one can put it, with my imprimatur.
PN57
THE DEPUTY PRESIDENT: Well at the bottom of it, it says, signed, the names submitted to the AIRC, Thursday, July 1st.
PN58
MR TRAINER: Yes, well as I say, Deputy President, I am not familiar with the detail of that at all. I neither had a role in authoring it, nor did I have a role in submitting it to the Commission.
PN59
THE DEPUTY PRESIDENT: Well I don't think that has been suggested but on the face of it, it is a document that, at least the people you represent, appear to have had some sort of role in. In any event, if we can get back to what you are intervening to assert.
PN60
MR TRAINER: Yes. Deputy President, the position put by those who seek to intervene is made up of a number of parts. The first part, and perhaps the core issue in a way, is the question of whether the Commission can, itself, be properly satisfied that there is genuine agreement to the terms and conditions of the document. What, and if, do you wish me to go to those in detail now, sir. I am not quite sure what you - - -
PN61
THE DEPUTY PRESIDENT: Well perhaps if you give me the broad headings you are intending to assert.
PN62
MR TRAINER: All right, I can certainly do that.
PN63
THE DEPUTY PRESIDENT: Then I may come back to them.
PN64
MR TRAINER: Yes. I can certainly do that. Sir, what we say in respect to the question of whether there was genuine agreement, is that if one looks at the time line that was involved in this particular document, at or about 30 April 2004. A circular was published, generally, indicating that the negotiations were complete. I understand almost immediately thereafter, the information sessions began. Now, this issue, sir, goes to the question, firstly of genuine agreement and secondly, the obligation to make the documents and the terms of the statute, without me flicking directly to it, refer to, readily available.
PN65
Now, by, as I understand it, 15 May or there abouts, the ballot document had been circulated. We say, sir, that two things emerge from that. Firstly, that the information that was circulated to the members in the form of a summary, was insufficient for the purposes of them making a satisfactory judgment as to the proper content of the proposed agreement. And secondly, being able to cast their vote with that knowledge. Secondly in that regard, the question arises as to whether or not in the terms of the statute, those people to whom I refer, had necessary access to the document itself.
PN66
The third point we would make in respect of that, is that there were, during this period, a very substantial number of people who are not on shift. We tally the number in the vicinity of 120, who had no more than the information sheet. And who did not have ready access to the document because they were on leave. That, we understand, was probably supplemented by about five people who are on long term workers' compensation.
PN67
Now, we say that on the basis, Deputy President, that the shift cycles were such that there were a number of people - sorry, the leave cycles, were actually absent from the Fire Service for that period on pre-determined ratio. The second point we would make in that regard is that there was, we say, confusion as to the meaning of the document in the workplace generally. We say that that was confusion recognised to the extent that the Fire Service itself, on 19 May, issued a circular that recognised the fact that there was and I quote:
PN68
Misunderstanding and misconception amongst fire fighters about matters contained within the proposed West Australian Fire Service Certified Agreement 2004.
PN69
That was a circular sent out. At that stage, the balloting had already begun, it was some days into its course. And for those who were not on shift, they, as I understand it, were not provided with the document. For those who were on shift, there was a group of names given to whom they could consult. So that we say in terms of people genuinely understanding, therefore casting their vote on the basis of genuine agreement, there can be no doubt that even the Fire Service itself recognised that there was, in fact, misunderstanding and misconception as to the meaning of the document amongst those who are voting. We say that it flows from that, that it would be difficult to conclude that there was genuine agreement. So that is the second point we would make in respect to the document, sir.
PN70
THE DEPUTY PRESIDENT: Well what provision of the legislation are you then saying has not been met and satisfied?
PN71
MR TRAINER: If you look at the legislation, it requires a valid majority and in looking at the definition of a valid majority, it talks in terms of a genuine agreement.
PN72
THE DEPUTY PRESIDENT: Yes.
PN73
MR TRAINER: On the part of those who are casting their votes.
PN74
THE DEPUTY PRESIDENT: So are you talking about section 170LT(6)? No, that is LK.
PN75
MR TRAINER: That is an LK provision, sir.
PN76
THE DEPUTY PRESIDENT: So you are looking at section 170LT(5)?
PN77
MR TRAINER: LT(5) requires a valid majority, sir, yes.
PN78
THE DEPUTY PRESIDENT: So is that the section you are referring to?
PN79
MR TRAINER: As to the requirement for a valid majority certifying, yes. And if you then go back, sir, as I understand it, a valid majority is elsewhere defined.
PN80
THE DEPUTY PRESIDENT: But are you asserting that LT(5) has not been complied with.
PN81
MR TRAINER: Oh, that is correct, yes. Yes.
PN82
THE DEPUTY PRESIDENT: With respect to the genuine approval?
PN83
MR TRAINER: That is correct, sir, yes.
PN84
THE DEPUTY PRESIDENT: Yes.
PN85
MR TRAINER: And in respect of the other point that we made and that is, that the requirement, that there be - and I am trying to pick up the section as I speak, LR, requires, as I understand it that there have, or have ready access to the agreement in writing. We say that that - - -
PN86
THE DEPUTY PRESIDENT: So the two strings so far, you are saying, section 170LR has not been satisfied.
PN87
MR TRAINER: Yes.
PN88
THE DEPUTY PRESIDENT: And in particular, LR(2A) and LR(2B).
PN89
MR TRAINER: That is correct.
PN90
THE DEPUTY PRESIDENT: So those two sections you are saying have not been satisfied. You are then saying LT(5) has not been met.
PN91
MR TRAINER: That is correct, sir.
PN92
THE DEPUTY PRESIDENT: Are they the only sections you are referring to?
PN93
MR TRAINER: They are the only two sections that we would raise in statutory terms. There are other arguments, we say, that support what we have put but in statutory terms, they are the objections that we are raising. We would also suggest, sir, and it doesn't necessarily form a part of the statutory constraint in that form, but there is also a public interest issue to be dealt with. And can I go to that issue now, sir?
PN94
THE DEPUTY PRESIDENT: I will be very interested there.
PN95
MR TRAINER: The public interest issue, sir, is a more generic one and that is that, at the core of this particular document and the core issue that has given rise to much of the debate around this document, are particular functions that are cast upon people in the Fire Service in relation to what is in the community nowadays called, terrorist attacks. And that is where they deal with chemical, biological and radiological issues arising from terrorist attacks.
PN96
Now my instructions in that regard, or perhaps I should backtrack one. It would be argued, sir, that there is an absolute need on the part of the community to be confident in the service that is provided in respect of that and in the training. And were there to be, as my instructions are, discontent over that particular function, we would say that it would be in the public interest to satisfy that discontent before such times as certifying the document. I don't take that a lot further but there is lying behind it, on my instructions, an abiding discontent amongst fire fighters. And I understand that is articulated, although I don't have access to the documents, it may well be articulated in some of the correspondence you have on file.
PN97
It was certainly articulated in meetings of fire fighters prior to 30
PN98
April, and in particular, on 27 April. And since, I understand, there is at least some suggestion that if certification were to go forward in its current form, that it may give rise to some sort of further industrial unrest.
PN99
THE DEPUTY PRESIDENT: What has that got to do with me?
PN100
MR TRAINER: Not that particular component, does not, sir, no.
PN101
THE DEPUTY PRESIDENT: Well what is the public interest issue got to do with me?
PN102
MR TRAINER: Merely, sir, it goes to the question, I would submit, that in reaching a conclusion, that there was genuine agreement, that you should be very cautious in proceeding to that conclusion in light of what has been set out for you rather than simply - let me back-track one - that you should be cautious in that regard to ensure that those people who are affected by the agreement are genuinely and properly understanding the tasks that they are required to perform pursuant to the agreement and the duties cast by the agreement, hence, going back again to the matters arising under the circular.
PN103
THE DEPUTY PRESIDENT: You see, Mr Trainer, there is no public interest test in agreement certification. There may have been once but there is no public interest test.
PN104
MR TRAINER: No per se - - -
PN105
THE DEPUTY PRESIDENT: My sole role is to ascertain whether the agreement has been made in accordance with the requirements of the Act, whether the application has been lodged in accordance that satisfies the requirements of the Act and whether the agreement itself meets the requirements of the Act. Once all that happens I have no discretion, I have no public interest role, it is purely a matter of certifying or if there are grounds why it shouldn't be certified providing opportunity for those grounds to be addressed.
PN106
MR TRAINER: I take your point about the public interest, perhaps I should use a different term and just state that the proposition that I put to you in terms of caution rather than expressing it as a public interest argument.
PN107
THE DEPUTY PRESIDENT: Yes.
PN108
MR TRAINER: I think you're asking me to outline the propositions that we raise and they essentially are the propositions that we raise, sir, to the extent that the evidence, and I refer to my letter of 30 June, what those objecting also wanted to put before you was the evidence of the context in which the information sessions took place and they say the manner in which it was put to them in a way that led them to believe they had little - or in fact they had no choice but to vote in a positive way and that rather than - - -
PN109
THE DEPUTY PRESIDENT: So the people you're representing, are you by that saying, they voted for the agreement to be approved?
PN110
MR TRAINER: I haven't been instructed which way they voted, sir.
PN111
THE DEPUTY PRESIDENT: That is what I thought you just said.
PN112
MR TRAINER: Perhaps I haven't conveyed it in a way that is adequate, what I was putting to you, sir, is that in the information sessions conducted by the employer that people came away or those who were at the sessions came away with a very clear understanding of the way in which the Fire Service, as the employer, wanted them to vote and it was put to them in such a way that they were, in effect, of the view that they had no alternative but to vote in the positive.
PN113
THE DEPUTY PRESIDENT: So are you asserting they didn't understand the agreement or are you asserting that the terms of the agreement were not explained?
PN114
MR TRAINER: We are saying both, sir. We're saying that there was confusion, and we say that is conveyed to you even by the Fire Services own circular, and that there were people who didn't ultimately completely understand at the time that they voted what their options were.
PN115
THE DEPUTY PRESIDENT: But your assertions are that LR(2)(a) and (b) were not satisfied and that LT(5) has not been met?
PN116
MR TRAINER: That is correct, sir, yes.
PN117
THE DEPUTY PRESIDENT: And they are your assertions?
PN118
MR TRAINER: Yes.
PN119
THE DEPUTY PRESIDENT: Yes. Mr Walker or Ms Husk, do you now wish to have any further comment on whether intervention should be granted?
PN120
MR WALKER: Perhaps I could clear up the public interest matter. It is actually prohibited under this part of the Act, under section 170LA(2) public interest does not apply. So perhaps that resolves that matter. We've made our submissions, your Honour, that if there are matters raised about the certification well perhaps that is appropriate that they be dealt with and dealt with today.
PN121
THE DEPUTY PRESIDENT: Yes.
PN122
MR WALKER: Our submissions are, and I will go to those if you want me to, your Honour, or do you want to deal with the intervention matter first?
PN123
THE DEPUTY PRESIDENT: No, I will deal with the intervention first. Ms Husk, do you have anything further?
PN124
MS HUSK: No, sir, nothing further.
PN125
THE DEPUTY PRESIDENT: Yes. Well, I will grant intervention. It is my view that the persons who are seeking intervention are persons who are affected by the agreement that is being sought to be certified should it be certified and they therefore have an interest in the proceedings. I will, however, confine the intervention to those matters that Mr Trainer says are asserted, that is matters concerning section 170LR(2)(a) and section 170LR(2)(b) and section 170LT(5). How is it suggested by anyone we progress from here? Does anyone have any preference or any views?
PN126
MR WALKER: Perhaps being the applicant I perhaps should go first.
PN127
THE DEPUTY PRESIDENT: Yes. I will always accept volunteers.
PN128
MR WALKER: Deputy President, this application seeks to certify the West Australian Fire Service Certified Agreement 2004. The application is made under section 170LS Division 3 of the Workplace Relations Act. The agreement we seek to certify is further settlement of the industrial dispute No C50049 of 1993 between the United Firefighters Union of Australia and the Fire and Emergency Services Authority Western Australia.
PN129
In accordance with section 170LO the terms of the agreement continue to be well within the ambit of our dispute. This is the fourth agreement made by the parties in relation to this dispute. This agreement does not replace the previous agreements but adds further settlement of the issues contained in the previous three agreements. The statutory declarations filed by both parties were filed with the application and set out the requirements of the Act.
PN130
It is certainly our submission that the no disadvantage test has certainly been complied with. The agreement provides pay increases of 12 per cent over the length of the agreement and actually for a senior firefighters, which is the key classification that recruits move through their training and end up on prior to any other promotion, the difference between the award - you would be aware, your Honour, that the award has been updated and now includes the $19 from the 2004 safety net agreement.
PN131
Even with that increase the difference between the award and the agreement will be $168 a week, approximately $8794 a year. So there is a substantive difference and it certainly complies with the no disadvantage test. There are other issues, such as personal leave, that increased to 126 hours per year for the use of sick leave and other personal leave, that was increased from 84 hours sick leave that is in the award.
PN132
We have introduced pressing necessity leave, now available under the personal leave in the agreement, so members with urgent matters can seek immediate leave and be paid. This is a new provision put into the agreement. We've managed to negotiate higher on-call allowance than the award. We've got paid paternity leave increasing to 8 weeks, that is not in the current award. We have got a Kalgoorlie allowance of $1245 that is not in the award. There is new purchase leave where an employee can reach agreement with the employer and have paid 80 per cent of their ordinary pay for 4 years and take the fifth year off. This is a new innovation that is being promoted in the public sector - I might take some of that myself I think.
PN133
The North West travel leave which is additional to the award. We've got trade union training leave. Leave to attend union business. Cultural leave. All these leaves are above the award rates. So in all respects, we say, the actual agreement certainly complies with the requirements of the no disadvantage test. The agreement was approved by a valid majority. The valid majority, the definition is covered in 170LE and it is persons employed at a particular time whose employment will be subject to an agreement make a genuine agreement or approve or genuinely approve the agreement, that is either a majority of persons or if the decision is made by a vote a majority of persons who cast a valid vote.
PN134
It is my understanding Ms Husk has evidence, because it is the employer's responsibility to undertake that ballot in accordance with the Act, so I guess it is their responsibility to explain how that was reached and we say that it has been approved by a valid majority in accordance with the definition under that section.
PN135
The ballot was concluded on 1 June 2004. The application was filed on 11 June 2004. So it is well within the requirements of the 21 days. The agreement has a disputes settling procedure under clause 19 and the agreement has a term of 2 years and a nominal expiry date as required by the Act. The certification will end a bargaining period, C No BP2004/1255.
PN136
THE DEPUTY PRESIDENT: Well, the agreement ends the bargaining period, does it not?
PN137
MR WALKER: Well, the certification will end the bargaining period, your Honour. It is our submission that all the requirements of certification under the Act have been met and unless you have any questions that would conclude our - - -
PN138
THE DEPUTY PRESIDENT: Well, do you have any comments on the explanation of the terms of the agreement?
PN139
MR WALKER: The requirement is provided under - I will find it. Because if this is an LS agreement, refers back to 170LR, so access to the agreement before approval:
PN140
The employer must take reasonable steps...
PN141
is the terminology in the Act. Now, it is our understanding that a full copy of the document went to every workplace within the agency. It is our understanding - perhaps Ms Husk can give submissions on this, but it is our understanding the employer also wrote to people on leave who were absent from the workplace providing them with a copy of the summary and the summary was those conditions that had been improved or added to the agreement from the previous agreement and also advised them where they could access the full copy of the agreement.
PN142
So certainly I believe that that requirement of the Act, the reasonable steps, was certainly complied with. Certainly, at least 14 days. My understanding is the full agreement was in the workplace 14 days prior to the ballot being conducted and certainly my understanding is, as required by this section, the employer took reasonable steps to explain the terms of the agreement to its employees.
PN143
As stated in our statutory declaration the union also held workplace meetings in all fire stations, country stations, to give everybody an opportunity to ask questions and to be informed about the agreement. So from our position we say every reasonable step was made to comply with 170LR(2) for that respect. Are there any other questions?
PN144
THE DEPUTY PRESIDENT: Not at the moment. I might refer you to 170MV(a), one of the comments you made.
PN145
MR WALKER: From which?
PN146
THE DEPUTY PRESIDENT: 170MV(a). Not that it has led to these proceedings, but I think you will find that a bargaining period ends when the agreement is made.
PN147
MR WALKER: The dispute - - -
PN148
THE DEPUTY PRESIDENT: The bargaining period ends - - -
PN149
MR WALKER: The bargaining period ends.
PN150
THE DEPUTY PRESIDENT: - - - when the agreement is made. Thank you.
PN151
MS HUSK: Thank you, sir. Perhaps rather than going over a lot of the information that Mr Walker has provided I will focus on the issues in question. 170LR(2), as you know, says that:
PN152
...at least 14 days before any approval is given the employer must take reasonable steps to ensure that people have access in writing to the agreement.
PN153
On 30 April 2004 a circular was released regarding the proposed agreement. A summary document was provided with that circular, that explained all the provisions of the agreement, particularly the new changes from the last agreement. A hard copy of that circular, a summary document and the entire proposed agreement was forwarded to every fire station and every workplace on the same day.
PN154
In fire stations the station officer reads the circular to each shift and a copy is placed on the noticeboard. An electronic copy of all documents were also made available on FESAs Internet site and that information was on the circular for all staff to see. The circular and summary document were sent to all employees who were on leave when the circular was released. 170LR(2)(b) talks about the employer taking reasonable steps to ensure that the terms of the agreement are explained to all persons.
PN155
Those employees who were on leave received the circular and a summary document, which explained the provisions of the agreement. The circular provided the information about where further information could be obtained from their relevant managers or regional directors. I certainly received some calls from employees on leave, who wanted a full copy of the agreement, who weren't able to go into their workplace and access it and that was provided to them to their home address.
PN156
FESA managers met with staff at the workplace during their normal shift times, discussed the proposed agreement and answered any questions that any employees had. A circular was issued to provide staff with additional contact details to ensure that consistent information was provided to queries that were raised. This is the circular that was referred to dated 19 May 2004. Prior to this circular being released there were a number of documents distributed amongst workplaces by employees purporting to provide information to their colleagues about clauses within the agreement, some of those pieces of information weren't correct and this circular was to ensure that if any of our employees had questions they knew exactly who to talk to to get the answers to those questions.
PN157
Mr Walker has already advised that the union itself also conducted a number of information sessions to members at the workplace. 170LT(5) explains that the agreement must be approved by a valid majority of members. On 12 May 2004 a ballot package was posted to all home addresses of employees who would be covered by the agreement within the State of Western Australia.
PN158
THE DEPUTY PRESIDENT: When was that?
PN159
MS HUSK: On 12 May the ballot package itself was issued. The ballot itself didn't open until 17 May 2004. The reason for the early distribution of the paperwork, was on the Wednesday prior to the ballot opening on the Monday, was to ensure that our staff in regional areas were able to receive their ballot packages prior to the opening of the ballot itself.
PN160
A circular was issued at that time to advise people that the ballot paper was being sent out and to provide information about how they needed to complete the ballot. The ballot opened on Monday 17 May 2004 and closed at 1700 hours on 31 May 2004. Ballot papers were received by FESA through a reply paid envelope that was provided to all staff and also hand delivery was available. The circular advised staff that if they had not received their ballot paper by a particular date they were to telephone one of two people within FESA who would arrange for replacement papers to be issued.
PN161
We received nine calls from employees with queries about their ballot paper. As a result five replacement papers were issued. A reminder circular was also provided to all staff on 25 May to remind all employees of the closing date of the ballot to ensure that people were able to get their votes in on time. The ballot was counted on 1 June 2004 using standard Electoral Commission procedures. It was a secret ballot. Scrutineers were appointed by both FESA and the United Firefighters' Union.
PN162
The total number of eligible employees at that time who were sent ballot packages was 897. We received - 796 ballots were returned to the organisation, 16 of which were in - - -
PN163
THE DEPUTY PRESIDENT: 700 and?
PN164
MS HUSK: 796 were returned of which 16 were invalid, so the total valid votes received was 780 or 87 per cent of the total number of people eligible to cast their vote. Total votes approving the agreement were 419 or 53.7 per cent of the valid votes received and total votes rejecting were 361 or 46.3 per cent of the valid votes. The ballot therefore approved the proposed agreement. Subsequent to that, the agreement was signed by both the employer and the union and was lodged in to your office on 11 June. Thank you.
PN165
THE DEPUTY PRESIDENT: So, Ms Husk, when was the agreement made between FESA and the organisation of employees? You see, the terms of the Act the agreement is made, then it gets sent out for approval. So when was the agreement made?
PN166
MS HUSK: Prior to 30 April 2004.
PN167
THE DEPUTY PRESIDENT: Yes.
PN168
MS HUSK: A matter of a few days prior, in my memory.
PN169
THE DEPUTY PRESIDENT: Yes. The circular that was provided to employees and posted to employees, did that say anything about access to a copy of the agreement?
PN170
MS HUSK: Yes, it did, sir.
PN171
THE DEPUTY PRESIDENT: What did it say?
PN172
MS HUSK: I do have a copy of that circular, if you would like a copy.
PN173
PN174
THE DEPUTY PRESIDENT: The explanation of the terms of the agreement, do you have copies of those documents?
PN175
PN176
THE DEPUTY PRESIDENT: The further document that was circulated, do you have a copy of that, do you?
PN177
MS HUSK: Yes, sir, I have copies of all relevant documentation.
PN178
PN179
THE DEPUTY PRESIDENT: Yes, thank you, Ms Husk.
PN180
MS HUSK: Thank you, your Honour.
PN181
THE DEPUTY PRESIDENT: Does that complete what you wish to say at this point?
PN182
MS HUSK: Yes, sir, it does.
PN183
THE DEPUTY PRESIDENT: Mr Trainer?
PN184
MR TRAINER: Thank you, sir. Did you refer to something 25 May? Sir, what number is that, did you say?
PN185
THE DEPUTY PRESIDENT: 25 May. I marked that FESA5, that is an executive circular number 8-2004. Mr Walker, I didn't mark that earlier document, do you wish that to be marked?
PN186
MR WALKER: Yes, if I could enter it in as an exhibit.
PN187
PN188
MR WALKER: 1, is it?
PN189
THE DEPUTY PRESIDENT: Yes. Thank you. Mr Trainer?
PN190
MR TRAINER: Thank you, sir. Sir, I wanted to commence our submissions to you by taking you first of all to section 170LR of the Act and that is the proportion of the Act which deals with both the concept of valid majority and the concept of access to the agreement and the time frame that is to be applied. The first thing you will note, sir, in (2), which is the subclause, is that at least 14 days is required. Now, we would submit, sir, necessary in determining whether or not 14 days is to be applied to have regard to the circumstances of the employment.
PN191
Now, in this particular instance, sir, we say that the timing of the ballot was such that - and you would be familiar, are you, sir, with the fact that the Fire Service is broken into a series of shifts and they're referred to as A, B, C and D?
PN192
THE DEPUTY PRESIDENT: No, but proceed.
PN193
MR TRAINER: The Fire Service operates, as you know, on a continuous shift system.
PN194
THE DEPUTY PRESIDENT: Yes.
PN195
MR TRAINER: There are four shifts, A, B, C and D and in order to properly facilitate the provision of the numbers of firefighters on the roster at any given time, both long service leave and annual leave, are in fact administered according to a predetermined pattern. Now, what we say in respect of that, sir, is a group went on leave from 10 April to 11 May, and I'm referring only to a shift, and another group went from 26 April to 27 May.
PN196
Their capacities, we say, to participate in the process of information was constrained significantly, we say, by their absence. What they had in front of them at the time that they were seeking to cast their vote was in fact the document - it is the summary document. Now, if you look at the second provision - sorry, perhaps I should continue that - now, we say that at least 14 days need to be administered in a manner that maximises the exposure of the staff to the agreement so that 14 days must be regarded as a minimum not a mandatory requirement and that the period for information and the like, we say, ought to have been longer to accommodate those 126 people who were on leave. Now, the second point I would make in respect of that - - -
PN197
THE DEPUTY PRESIDENT: What is that to do with me? The Act says:
PN198
The employer take reasonable steps to ensure that 14 days approval is given...
PN199
If that occurs that is the end of it. I can't then superimpose my view or your view or anyone else's view that: Well, in these circumstances it should have been longer just as I can't superimpose a view that in other circumstances it should have been shorter. It is a mandatory requirement that it be 14 days and that's it.
PN200
MR TRAINER: I would have thought, sir, it goes to two questions, the first question is whether in the circumstances it created the atmosphere in which there could be genuine agreement, that would be the first - - -
PN201
THE DEPUTY PRESIDENT: But, Mr Trainer, the provision is either met or it is not met, it is a mandatory requirement that it be satisfied.
PN202
MR TRAINER: Yes, that is - - -
PN203
THE DEPUTY PRESIDENT: It is not satisfied to any greater or lesser degree it is simply satisfied or it is not.
PN204
MR TRAINER: Of course, sir, but of course that particular provision has two legs to it, the second is the question of the access and that is the second point that we were going to, and that is that those who were on leave could not have had access to what the words of the agreement must refer to, the proposed certified agreement, and that they could not have had access to the agreement. There is in the circular no indications, as I recall - - -
PN205
THE DEPUTY PRESIDENT: So you're saying that they wouldn't have had at least 14 days access to the agreement prior to it being approved, that's what you're saying, is it?
PN206
MR TRAINER: In effect, yes.
PN207
THE DEPUTY PRESIDENT: Yes. Well, that is different to what you contended earlier. You were contending that the 14 should be more, what you're saying is that the 14 wasn't met.
PN208
MR TRAINER: Certainly. Certainly the proper construction is, as I will put in a moment, and the issue we wanted to raise with you is the issue of the ready access rather than relying heavily upon the 14 days.
PN209
THE DEPUTY PRESIDENT: So you're saying they didn't have ready access?
PN210
MR TRAINER: That's correct, sir. That is the point that we are - - -
PN211
THE DEPUTY PRESIDENT: That is the issue, is it?
PN212
MR TRAINER: That is the issue and we say the ready access was prohibited by the roster itself in the first instant. That is the way in which we come by that and it was in tandem, as I've said, I think it was 96 firefighters who were on annual leave through the period, 14 day period, and there were some 26 on long service leave in that period.
PN213
THE DEPUTY PRESIDENT: So what should the employer have done?
PN214
MR TRAINER: Provide them copies by mail, sir. As you've already heard, where a request was made, that was done.
PN215
THE DEPUTY PRESIDENT: So you're saying the only way that LR(2)(a) could be satisfied is by providing copies of the agreement in writing by post to employees who were not at work?
PN216
MR TRAINER: In the case of this unique circumstances, sir, yes. Might not be that that is a universal proposition but in this instance where - or alternatively, given that it is at least 14 days, there is, I would argue, a discretion on the part of the employer as to how long the material is made available to cross the changes of shifts, but one way or another to ensure that people had that 14 day access.
PN217
THE DEPUTY PRESIDENT: Yes.
PN218
MR TRAINER: That is the proposition.
PN219
THE DEPUTY PRESIDENT: So you're relying on a limb of the 14 days?
PN220
MR TRAINER: Well, what I'm saying, sir, is what you need to do - we would submit, to satisfy the provisions what you need to do is to ensure that people have ready access for 14 days and perhaps what I was moving to was some gratuitous advice by suggesting the 14 days might have been extended or across the spread of shifts, only in response, sir, to your proposition that the otherwise requirement would be to mail it to everybody. I'm just saying that there are other methods of achieving the same objective.
PN221
THE DEPUTY PRESIDENT: Yes. I understand your argument.
PN222
MR TRAINER: But primarily what I'm saying, sir, is that those people, in particular to whom I've referred, over the period of the 14 days didn't have ready access to the agreement in writing. That really is the proposition we put.
PN223
THE DEPUTY PRESIDENT: Despite being advised how they could get access, despite having a letter posted to their home that they could have access, you're saying that was insufficient, are you?
PN224
MR TRAINER: I'm saying it was insufficient because it involves an assumption that the persons involved would receive that letter within the time allocated them, the 14 day period.
PN225
THE DEPUTY PRESIDENT: Yes.
PN226
MR TRAINER: The assumption that they would necessarily be at home, given their numbers, is we argue a significant assumption.
PN227
THE DEPUTY PRESIDENT: But on that argument, whether you posted them their agreement or not, it wouldn't make any difference.
PN228
MR TRAINER: Well, on the basis if you posted the agreement to them they would at least have had access to the agreement, being the whole document. I would take the point, sir, that the summary document that they did receive is in fact exactly that, a summary, it doesn't set out the document as a whole so that the meaning of the section requiring access to the whole of the agreement has to be seen in light of it providing a full description of what was involved, but unless there is something further, sir, I propose to move on from that now.
PN229
I have covered that point. Unless you require me, sir, to show you - and perhaps I could hand up to you the rosters for the period involved which goes to the point of the - I only have one copy, unfortunately, I only received a copy of that this afternoon. It will show the point that I'm making about the way in which the shift was organised.
PN230
MR TRAINER: The second point we would make, and that is also contained in the provisions of LR that is defined in LE - so it goes to the question of the majority and as we indicated to you, sir, the position that we put in respect of that is that there was clearly a lack of the understanding required for the purposes of people casting a vote in a manner that they were genuinely approving the agreement.
PN231
Now, I think you already have before you a copy of the circular which is, I think, dated 19 May and you will have noted, sir, that in the document of 19 May that in the first paragraph there is a concession that there appears to be a misunderstanding and misconception amongst career firefighters about the matters contained within the proposed WA Fire Service Certified Agreement. That is the employer's document. The second point, you will notice, in respect of that, sir, is that the ballot had already opened by the time that this particular circular was distributed.
PN232
The third point I would make, and you will see that that is in fact conveyed in the ultimate paragraph of the document, where it says that the certified agreement ballot process is now under way and sets a closing date. Even if one takes that as an attempt to remedy on my instructions the document was not distributed to those persons who were not on shift, that is those 120-odd people, again, who were outside the operating shifts at the time.
PN233
THE DEPUTY PRESIDENT: That is the circular of 19 May.
PN234
MR TRAINER: You've marked it as FESA4, sir.
PN235
THE DEPUTY PRESIDENT: Yes.
PN236
MR TRAINER: Yes.
PN237
THE DEPUTY PRESIDENT: Yes, proceed.
PN238
MR TRAINER: Sorry, sir, I wasn't quite sure where we were up to. So we say if you look at the question of what is required under 170LE for a valid majority it could hardly be argued that those who misunderstood or misconceived were approving or genuinely approving in casting their vote. If you reach that conclusion or you accept that submission, we say, the inevitable conclusion is that there was not a valid majority because the provisions of 170LE are not satisfied.
PN239
THE DEPUTY PRESIDENT: How does that follow? Are you suggesting that there must be genuine understanding for there to be a valid majority, are you?
PN240
MR TRAINER: Well, I'm arguing, sir, if you misunderstand something or you misconceive what it is then you could hardly be said to be genuinely approving or for that matter disapproving, that certainly couldn't be said to be genuinely approving.
PN241
THE DEPUTY PRESIDENT: But, Mr Trainer, on that basis in order for me to be satisfied on any application for certification before me I would have to conduct a test for every employee that voted for an agreement, that they understood it. It would never be able to be met. I mean how does one assess whether someone genuinely understands the terms of an agreement, all the requirement is, is that the terms are explained.
PN242
MR TRAINER: That is the requirement in respect of the obligation on the employer, sir, but I would suggest to you that 170LE takes it further - - -
PN243
THE DEPUTY PRESIDENT: 170?
PN244
MR TRAINER: LE takes it further in defining "valid majority."
PN245
THE DEPUTY PRESIDENT: Yes, they must genuinely approve.
PN246
MR TRAINER: Yes.
PN247
THE DEPUTY PRESIDENT: So once a vote is cast it either genuinely approves or genuinely disapproves, does it not, and where is there a requirement to understand the terms of the agreement?
PN248
MR TRAINER: Well, what I'm putting to you, sir, and you seem to not have the same view - - -
PN249
THE DEPUTY PRESIDENT: Well, don't presume anything, I'm just trying to test out what the requirements are and where your position is.
PN250
MR TRAINER: Yes. Well, perhaps I can take you through it again, sir. What we say is fairly straightforward in that regard. If there is a misconception or a misunderstanding then a person could not reasonably be held to have approved or genuinely approved of a proposal, whatever it might be.
PN251
THE DEPUTY PRESIDENT: So if there is a misunderstanding - you're saying there is a misunderstanding test that underpins a genuine approval test and therefore if there has been a misunderstanding it is not genuinely approved, notwithstanding that the terms of the agreement may have been explained? Is that your proposition?
PN252
MR TRAINER: I don't know whether I would want to take it as universally as that at this stage, I would want to think that through further. What I would say, however, is that when we get to the point where it is recognised that there is misunderstanding and misconception amongst those who are to vote the question of approve or genuinely approve comes into focus. It would seem to me, sir, that if one didn't apply that meaning then really the question of the information sessions comes into focus. Surely, the obligation of the employer is to explain in a manner that the staff do understand so that they can cast a genuine vote, that is to genuinely agree to what is proposed and that is the proposition that arises, we say, in the context of what you have as FESA4, an exhibit.
PN253
THE DEPUTY PRESIDENT: Sorry to be seemingly labouring this point, but once a vote is cast the casting of that vote either genuinely agrees or genuinely disagrees, are we on common ground there? You don't dispute that?
PN254
MR TRAINER: Could we go through that again, if you wouldn't mind, sir?
PN255
THE DEPUTY PRESIDENT: Once a vote is cast a person by the casting of that vote either genuinely agrees or genuinely disagrees through voting. Leave aside understanding, either genuinely agree or genuinely disagree.
PN256
MR TRAINER: I wouldn't accept that proposition, sir. I would accept they would cast a vote in this instant, they have clearly cast a vote, it might be in one direction or the other but to presume that that vote represents a genuine agreement or a genuine approval - - -
PN257
THE DEPUTY PRESIDENT: How else is one ever going to ascertain whether someone agrees or disagrees other than by casting a vote by providing for casting of votes?
PN258
MR TRAINER: I think in ordinary circumstances it would not be an issue. I think in circumstances where there is clearly afoot, as there is in this instant, an understanding on the part of FESA in particular that there is some misunderstanding or misconception then the question of the validity of the vote must be brought into focus.
PN259
THE DEPUTY PRESIDENT: But isn't that more a question of whether the terms of the agreement have been explained rather than whether the vote is valid or not, Mr Trainer? You see, the vote is either valid or it is invalid and to me the provisions of the LT(5) are more about whether the vote has been properly conducted, the ballot has been properly conducted rather than whether people understand or don't understand. You see, the provisions of the Act were changed in '96. Prior to '96 employers had an obligation to explain the effect of the terms of the agreement.
PN260
Since '96 the provisions are that the employer take reasonable steps to explain the terms of the agreement. Whether it is understood or not is another issue and it is not an issue that on the face of it is a test that is required.
PN261
MR TRAINER: I would put to you, sir, that the argument in that regard is a little different. The obligation on the employer to inform is one requirement, quite clearly, of the statute - - -
PN262
THE DEPUTY PRESIDENT: Yes, but it is not an absolute one, is it?
PN263
MR TRAINER: If you mean by absolute - if you mean to satisfy itself that each and every person understands?
PN264
THE DEPUTY PRESIDENT: Yes.
PN265
MR TRAINER: I don't think it reaches that far. I would accept that proposition. But I would put to you, sir, that that information session having been conducted, the next thing you have to satisfy yourself with is, the question of whether or not - perhaps I should back track one. I would suggest to you that the information section and the genuine approval are, in fact, two different and distinct requirements.
PN266
THE DEPUTY PRESIDENT: Yes.
PN267
MR TRAINER: I think that is fairly clear on the statute.
PN268
THE DEPUTY PRESIDENT: Yes.
PN269
MR TRAINER: If the information requirements have been satisfied, then it is, one would have thought, generally the case, that it would follow that people who vote are likely to vote on a genuine basis. But we don't say, simply because there has been an information session that the question of genuinely approved, is beyond rebuttal.
PN270
THE DEPUTY PRESIDENT: So you are not contesting that the conducting of the ballot did not provide for, in the manner that the ballot was organised, conducted and implemented, did not provide for proper opportunity to vote. Your complaint is that those that either did or didn't vote, didn't have a genuine understanding of what they were voting for. Is that the gist of what you are saying there?
PN271
MR TRAINER: I think it is, sir, relying on the words of the Act. They didn't genuinely approve the certified agreement proposal.
PN272
THE DEPUTY PRESIDENT: So you are not challenging the administration and the conduct of the ballot, you are challenging the understanding of employees who voted?
PN273
MR TRAINER: My instructions in respect to the ballot, sir, are that at least one person improperly had a ballot sheet but without the opportunity to pursue discovery in respect to the ballot as a whole, I can't ascertain whether or not another group of employees, who it is alleged, may have improperly received votes, did so. I don't have the material before me, nor do I have access to that material in order to be able to form a view on that. So I can't ultimately say to you that I have a final view about each person who got a vote. But it is clear, if I can go to the other point, it seems clear that each person that received a vote received in a manner consistent with the requirements for voting and returned it in that fashion.
PN274
THE DEPUTY PRESIDENT: Yes.
PN275
MR TRAINER: Does that cover the point that you were raising, sir?
PN276
THE DEPUTY PRESIDENT: Yes, it does.
PN277
MR TRAINER: Yes. So that what we are saying is, and I have perhaps belaboured, is there is, we say, a distinction to be made probably in limited circumstances between the term, vote, and genuine approval, for the reasons that I have already outlined. I wonder, sir, if we might take a few moments break. I do need to go yonder. Is that possible?
PN278
THE DEPUTY PRESIDENT: Yes, we will adjourn for a few moments.
SHORT ADJOURNMENT [3.29pm]
RESUMED [3.40pm]
PN279
THE DEPUTY PRESIDENT: Yes, Mr Trainer?
PN280
MR TRAINER: Thank you, sir. We were debating at the time that we broke, the question of genuinely, and the final point in that little group of remarks about the valid majority that I would just draw to attention again, is that at the time of the publication of the circular, which you have as FESA 4, that the ballot, in fact, had already opened and votes were being cast.
PN281
The second point we would make in respect to the question of genuinely approves, and we wish to call some small amount of evidence in regard to this, is, again, the question of genuinely approved and whether people actually in the information sessions, came away with an understanding as to what they were going to be required, or what was being put to them. It is our submission that the circular, which is FESA 4, is well founded on the basis that the information sessions that were presented were, we say, at times - let me back track, did not convey in a way that all people clearly understood the proposals in terms of the agreement.
PN282
And to that extent, we say, sir, that in fact it was put to the people who were at the information sessions that this was, in fact, the only chance that they would get. That if they didn't vote for it, that it would be locked up in matters before the Commission for an extended period. We say, in fact, that those remarks in the information session cannot be considered consistent with people approving or genuinely approving.
PN283
THE DEPUTY PRESIDENT: So let me understand this proposition that you are putting to me, Mr Trainer. Are you saying that if it is put to employees: if you don't vote for this agreement, you may not have another chance, or, if you don't vote for this agreement, you won't have another chance for some considerable period of time. That then means that the agreement is not genuine approved. Is that what your proposition is?
PN284
MR TRAINER: We are saying it goes to the question of whether approval is genuine, yes, sir.
PN285
THE DEPUTY PRESIDENT: So if an employer said: if you vote no now, I'm not putting it up again and employees vote, yes, then the agreement is not genuinely approved. Is that your proposition?
PN286
MR TRAINER: The proposition, sir, is a little different to that. The proposition is that the employer, in conducting an information session, which is explanatory to the documents, ought to deal with it in an explanatory fashion rather than putting a point of view which might well have an impact upon the way in which people vote.
PN287
THE DEPUTY PRESIDENT: Well I just want to understand clearly what you are putting to me. If an employer explains the terms of an agreement.
PN288
MR TRAINER: Yes.
PN289
THE DEPUTY PRESIDENT: And in addition, says: if you vote, no, now, you won't get another chance. And the employees subsequently vote, yes, you are saying that would constitute a lack of genuine approval?
PN290
MR TRAINER: If that had an influence on the outcome, yes. Certainly.
PN291
THE DEPUTY PRESIDENT: Yes, I understand what you are saying.
PN292
MR TRAINER: I beg your pardon?
PN293
THE DEPUTY PRESIDENT: I understand what you are saying.
PN294
MR TRAINER: I think there is a distinction to be made, sir, if I might put it, between the obligation to inform, which we would suggest is an obligation which is, for want of another word, neutral, in the sense that it is, and I have referred to them as, information sessions, and separate to those, if a party expresses a point of view and it is clearly a point of view separate from the information session, that might well be something that doesn't create a difficulty. But the mixing of the two, we suggest, is not a way in which an information session ought to be conducted.
PN295
So we say it is the concept of informing people that is at issue here. The concept of informing people for the purposes of permitting them to approve or genuinely approve, thereby creating ultimately, the question, or dealing with the question ultimately of the valid majority.
PN296
THE DEPUTY PRESIDENT: Yes, I understand your argument.
PN297
MR TRAINER: Now, it might be around the periphery of all of those information sessions, there is debate amongst people as to what might or might not be an appropriate response to the ballot and how people might or might not vote.
PN298
THE DEPUTY PRESIDENT: So you are not saying that anything that was explained was misleading or deceptive, you are saying that it was additional to and unnecessary and effected the ballot?
PN299
MR TRAINER: What we are saying in the evidence we were seeking to bring, sir, was that the information sessions, in fact, had two characteristics. The first characteristic was that they were not neutral. The second characteristic was that at the end of the information sessions, people did not come away with the understanding necessary to cast a genuine vote.
PN300
THE DEPUTY PRESIDENT: But you are not saying they were misleading or deceptive? Or are you?
PN301
MR TRAINER: I can't take that matter as far as I would like to, sir, because in the role of intervener, we haven't had the opportunity to seek by way of discovering, what I am instructed, were communications to those who were to conduct the information sessions. My instructions in that regard, sir, are that from at least one person who I understand has seen the communications in writing, that the information sessions came with an imprimatur that a particular point of view should also be pushed. But as I say, I haven't had, in the role of intervener, the opportunity to examine the documents associated, nor for that matter, unless you so grant leave now, I have access to discover those documents and put them before you.
PN302
THE DEPUTY PRESIDENT: Mr Trainer, if I am not satisfied that there was genuine approval.
PN303
MR TRAINER: Yes.
PN304
THE DEPUTY PRESIDENT: What are you suggesting I do?
PN305
MR TRAINER: Well I would have thought, sir, the statute says you don't certify.
PN306
THE DEPUTY PRESIDENT: Why wouldn't I utilise 135(2A)?
PN307
MR TRAINER: I don't have a copy of that in front of me at the moment, sir. I don't recall the provision, 135(2A), sir.
PN308
THE DEPUTY PRESIDENT: Well if I am not satisfied that there is genuine approval then I would have thought the course is for me to cause another ballot to be conducted.
PN309
MR TRAINER: I think that is an option open to you, sir, to do that. And you might recollect that was something that was raised earlier in the piece. The preferred position of those who I represent is that you elect not to certify. But certainly I couldn't suggest to you that the option of a ballot is eliminated.
PN310
THE DEPUTY PRESIDENT: But if it is a section 170LT(5) argument you re pursuing here, then why wouldn't I utilise 170LV or 135(2A) because of the objects of the Division?
PN311
MR TRAINER: My, and I would obviously stand corrected in this regard, sir, my reading of 170LV is that it is somewhat more restrictive than 135.
PN312
THE DEPUTY PRESIDENT: Yes but what I am putting to you, there is a range of - you are putting forward an argument that 170LT(5) has not been met.
PN313
MR TRAINER: Yes.
PN314
THE DEPUTY PRESIDENT: Now if it hasn't been, then one option is 135(2A).
PN315
MR TRAINER: Yes.
PN316
THE DEPUTY PRESIDENT: For me to be satisfied, or not, and other options rather than refusing to certify an agreement. Why wouldn't those options be used?
PN317
MR TRAINER: It might ultimately be in your discretion, sir, that that is the course that you take.
PN318
THE DEPUTY PRESIDENT: Yes but I am asking you. You are the intervener here and you are asking me to do things or not do things.
PN319
MR TRAINER: Yes.
PN320
THE DEPUTY PRESIDENT: I want to be clear what you are asking me to do or not do?
PN321
MR TRAINER: Well, our position is this, sir, that if you were to find that the requirements to certify are not satisfied, then the preferred position would be that you choose not to proceed to certify, full stop. However, it is recognised that there are other powers under the statute and quite obviously, in light of the argument that has been advanced, particularly the argument that is advanced in respect to whether or not people cast their vote in a manner which could properly constitute a valid majority, it might be that lead you inevitably to a conclusion that the proper way to deal with the matter is to test that again. Which, of course, would be a ballot.
PN322
THE DEPUTY PRESIDENT: Well I can only do that if I wasn't satisfied there had been a genuine approval in the first place.
PN323
MR TRAINER: Of course, sir, yes. Yes, the answer has the question or the proposition precedent, yes. That you would need in the first instant to be satisfied.
PN324
THE DEPUTY PRESIDENT: And when you say if I agree with you that the terms to the agreement weren't properly explained or there was no ready access to the agreement, either within or outside 14 days, what do you say I do if I agree with you in that proposition?
PN325
MR TRAINER: That is the genuine agreement argument, is it?
PN326
THE DEPUTY PRESIDENT: No, no. You put a proposition to me that 170LR(2) was not satisfied.
PN327
MR TRAINER: Yes. I am sorry. I am sorry, sir, I misunderstood. Yes.
PN328
THE DEPUTY PRESIDENT: So I am clear what you are saying on 170LT(5) now. I am going back to 170LR(2) and what are you saying that I do, or not do, if I accept your proposition in that regard?
PN329
MR TRAINER: I think in respect of the 170LR(2), it again goes ultimately to the question of a valid majority. The preferred position is the one I have put. But it might be that the nature of the argument that has been put to you, leads you to the conclusion that the remedial action is, in fact, a test whether a valid majority did exist. And that would be another ballot.
PN330
THE DEPUTY PRESIDENT: So you are inferring that there are those remedial actions available to me, are you?
PN331
MR TRAINER: Yes, sir.
PN332
THE DEPUTY PRESIDENT: Yes. Right, thank you.
PN333
MR TRAINER: I don't have that provision of the statute in front of me. I must say that I am basing it on my recollection of that provision. But certainly, the view that I put to you is simply that if you form a view that there is some defect, then the next step in decision making, I would suggest, is, having identified the defect to then identify how consistent with the purposes of the statute, that that defect might be perfected or addressed. And it may lead you to the conclusion that a ballot is the appropriate way to travel.
PN334
THE DEPUTY PRESIDENT: So you are suggesting as well that 111(1Q) is available to me as well, which is the general powers to rectify or waive defects, errors or omissions.
PN335
MR TRAINER: Yes, I don't know of anything that says those general powers are excluded from these. I have not seen anything that suggests that. But I would put to you, sir, that any power you exercise in that regard would need to focus upon that which, and perhaps I am stating the obvious, but it would need to focus upon the defect that you are seeking to repair.
PN336
THE DEPUTY PRESIDENT: Yes, but then, as you pointed out, there are the objects as well.
PN337
MR TRAINER: Yes.
PN338
THE DEPUTY PRESIDENT: And the object of the Division is to facilitate making and certifying of agreements.
PN339
MR TRAINER: Yes.
PN340
THE DEPUTY PRESIDENT: Yes.
PN341
MR TRAINER: And that is what leads me to the proposition, sir, that you may, having identified, if you do, a defect, take the next step and say: well, what is the magnitude of the defect. If the magnitude of the defect is in your view such that the defect flaws the document, fundamentally, to the extent that is incapable of resurrection, then the conclusion would seem to me to be that you would then go to a refusal to certify. The - and I think you referred us to 170LV, I think it was, is that correct sir?
PN342
THE DEPUTY PRESIDENT: Yes.
PN343
MR TRAINER: The other options provision, which deals with the question of undertakings. It would seem here to me that there are no undertakings that could be reasonably given that would repair the defects, if you - - -
PN344
THE DEPUTY PRESIDENT: No, but there is any other actions of the employer, or employees may take, that is more what I was alluding to.
PN345
MR TRAINER: I understand that sir.
PN346
THE DEPUTY PRESIDENT: What other actions would there be, I guess is what I was really asking you, rather than the undertakings, that there is also, I guess from what you're saying, an issue of the consequences of certifying, or not certifying, also need to be taken into account in exercising any discretion I may have, if I do have any discretion. Certainly if I have any discretion in 111(1)(q) Mr Trainer.
PN347
MR TRAINER: It would seem to me sir that - and you raised the point that I think is important, in that the positive terminology of 170LT and that is that you must be satisfied, which would seem to me to mean that there is an onus on the parties before you, to be discharged in respect of each and every element that leads to certification. If you have any
PN348
THE DEPUTY PRESIDENT: But they do that through the statutory declaration.
PN349
MR TRAINER: Yes, I appreciate that sir. If - what I was coming to was that if - on any of those points you are dissatisfied, or not - perhaps I should withdraw that. If, at any point, you are not satisfied and I would suggest you don't have to be dissatisfied, you only need to be not satisfied, terrible negatives, then I would suggest to you sir, that you then have access to the alternatives provided in the statute and you would be guided obviously by the objects of the statute, particularly in that section, which we would, I think, inevitably lead to the view that the purpose is to put this agreement in place, if it can be done, as opposed to dispose of it, as a refusal.
PN350
Now, if you were to take that view sir, as I've already said, you might come to the conclusion that the defect - that the first thing to be ascertained properly in order to be satisfied as is required in subsection (1), is you need to be satisfied that the valid majority was in fact a valid majority. If that is the point upon which you focus, then obviously that would be the conclusion that you would reach, I would suggest, because you are dealing with the question of whether there was a valid majority and it may be, as you suggested, that is perhaps the remedy that would be most appropriate in these circumstances.
PN351
I don't have instructions to argue that is the only remedy. But certainly sir, that in my view, given the general powers of the statute, would be one that you could consider and you could order - so that you could be satisfied, or alternatively, perhaps I should back-track. So that you could be satisfied that each of the requirements of the statute, in terms of provision of documentation and information and the like that we have raised with you to this time, have been met and they have led to an outcome.
PN352
Now, if you are satisfied that all of those information things have been done in the manner proper and that there are not holes in it, presumably after that ballot were conducted, particularly if it were conducted independently of the parties, then I would suggest prima facie you have an outcome upon which you can rely.
PN353
THE DEPUTY PRESIDENT: Yes, thank you Mr Trainer. You wish to call evidence, do you?
PN354
PN355
MR TRAINER: Before I go to the evidence of Mr Boe sir, I did have a copy - the rosters that I handed up, did they get a number, I would seek to have them - - -
PN356
THE DEPUTY PRESIDENT: Yes, I1.
PN357
MR TRAINER: I1?
PN358
THE DEPUTY PRESIDENT: I1.
PN359
MR TRAINER: Thank you sir.
PN360
Mr Boe can you tell the Commissioner your occupation?---Yes, I'm a Senior Fire Fighter with the - with FESA, Western Australia.
PN361
And can you tell the Commissioner how long you've been a fire fighter?---This is my 10th year.
PN362
All right. Can you tell the Commissioner, in 2004, where you were stationed?---I'm currently stationed and was stationed at that time, at Perth Fire Station.
PN363
And can you tell the Commissioner which shift you were on?---I'm on C shift.
PN364
Right. Now, were you on - on duty, perhaps I should - were you rostered for duty in the period from the middle of April through till the end of May?---Yes, I was.
**** MORTON BOE XN MR TRAINER
PN365
You were not on leave, or the like?---No.
PN366
All right. Can you tell the Commissioner in your own words, what occurred in terms of the information that was provided to you on shift, firstly, can you tell the Commissioner - sorry the Deputy President whether there was an information session on your shift?---We had an information session from FESA management, yes.
PN367
All right. And can you tell the Deputy President who attended that?---The - those available on shift, fire fighters, officers and managers were present.
PN368
Right?---Yeah.
PN369
And can you tell the Commissioner who was in attendance from the management?---Management's attenders were Russell Stevens and Howard Fiedler.
PN370
All right, do you know the position of Russell Stevens?---He is I believe the Acting Executive Director.
PN371
All right and Mr Fiedler?---No, I'm not sure of his exact ranking, or position.
PN372
Can you tell the Deputy President in your own words what happened at the session?---I guess overall we - we had a session where obviously it was our opportunity to ask about this agreement, if we had any queries. We did have several queries as a group and put those questions to - to the Executive, or to the FESA managers. Overall most areas were - were answered briefly, some areas we were told the details hadn't yet been worked out, but they would be worked out as - after the agreement we assumed. I guess that was a small part of the session. We were also - it was also made clear to us that this was a first and final offer. If in fact we didn't accept this agreement, the chances were
**** MORTON BOE XN MR TRAINER
very high that it would go straight to the Industrial Commission. We were also told that that would hinder our pay rise by up to six - well from 6 to 12 months was a reasonable time that they expected. Overall I think most of us felt rather threatened by the effect of the meeting, being basically we were left with the feeling that we had - we've got one alternative, either that that would be accept this agreement, or you (a) are going to be waiting a long time, or (b) you stand to lose everything that has so far been negotiated. So that was certainly a big part of the message.
PN373
Was there any discussion with your colleagues following the meeting?---There was a lot of discussion, not only with our shift but other shifts on our station and also fire fighters and officers from other stations. I think the general feeling was one of bewilderment, perhaps confusion, we weren't sure what were the options beyond not agreeing to this, or voting no. So, yes, there was a lot of discussion and a lot of confusion, a lot of debate.
PN374
Are you able to tell the Commissioner when this meeting took place?---I can only tell you that it was - it was after the ballot was out, the exact date I couldn't recall, so.
PN375
All right. Just the one other question Mr Boe. Setting aside the information session that you've given evidence about, were any other information sessions conducted on your shift?---On our shift we did have a union representation, or the union executive came and gave us an information session, I'm not sure if that is relevant, but yes we did, that was the only other information for us, in terms of actual, physical representation. We did have the agreement available to us.
PN376
All right. I have no further questions.
PN377
**** MORTON BOE XXN MS HUSK
PN378
MS HUSK: Just a couple of questions sir.
PN379
Mr Boe, can you tell the Deputy President, whether you voted in the ballot?---Yes, I did vote.
PN380
And would you tell the Deputy President how you voted in the ballot?
PN381
MR TRAINER: Well with all respect, surely that is private information Deputy President, that is the purpose of a secret ballot.THE
PN382
DEPUTY PRESIDENT: Yes, I don't think it matters, it was a secret ballot Ms Husk.
PN383
MS HUSK: The purpose of the question was to determine Mr Boe's thinking pattern in relation to some of the information that he was provided, as to whether it was a consequence - - -
PN384
THE DEPUTY PRESIDENT: Yes, well given the evidence - the nature of the evidence led, I don't think it matters Ms Husk. You did cast a vote Mr Husk [sic], either yes, or no, one of those?---Yes, I did vote, yes.
PN385
MS HUSK: Mr Boe, can you tell the Deputy President whether you had enough information to cast a vote?---In - in my personal opinion I did have enough information, I sought the information myself, yes, I did.
PN386
Thank you sir, I have no further questions.
PN387
THE DEPUTY PRESIDENT: Thank you. Mr Walker?
**** MORTON BOE XXN MS HUSK
PN388
MR WALKER: No questions.
PN389
THE DEPUTY PRESIDENT: Yes. Any re-examination Mr Trainer?
PN390
MR TRAINER: No re-examination sir.
PN391
PN392
THE DEPUTY PRESIDENT:
PN393
MR TRAINER: Excuse me a moment sir, I need to take some further instructions from one of the people I represent, I won't be a moment.
PN394
THE DEPUTY PRESIDENT: Yes, we will adjourn for a few moments.
PN395
MR TRAINER: All right.
SHORT ADJOURNMENT [4.09pm]
RESUMED [4.21pm]
PN396
THE DEPUTY PRESIDENT: Yes, Mr Trainer?
PN397
PN398
MR TRAINER: Mr Blackford could you tell the Commissioner your occupation please?---I'm a Fire Fighter with FESA.
PN399
All right. And how long have you held that position?---For 24 years.
PN400
All right. And where are you currently stationed?---At Fremantle Station.
PN401
On which shift?---D shift.
PN402
D shift. And how long have you been at Fremantle?---3 years.
PN403
All right. In the period from approximately mid-April of 2004 until the end of May 2004, were you rostered for duty?---I was, yes.
PN404
Did you have any leave during that period?---No.
PN405
All right. Can you tell the Deputy President what occurred at - or maybe back-track one. Were there information sessions conducted at Fremantle?---There was, yes.
PN406
Can you tell the Commissioner - Deputy President, how they came about?---We had a visit by the Acting Director, Terry Ryan and District Manager, Ron Cox and they proceeded to go through the amendments to the EBA.
**** GRAHAM JOHN BLACKFORD XN MR TRAINER
PN407
All right and can you tell the Deputy President the way in which the session went and the message that was conveyed to you?---Well the message was, it was heavily of the opinion that we should accept this first and final offer. In their opinion it was a good, generous offer and we should accept it. We raised a lot of questions with them about issues that were not only in this EBA but also previous EBA agreements that hadn't - were still a grey area. So we were really concerned that what they were presenting this time was going to be the same, you know, that we were not going to get actually what we think we were going to get. So the guys were very concerned.
PN408
And did you discuss issues with your colleagues afterwards?---Yes, we did, yeah.
PN409
Can you tell the Deputy President the tenor of that conversation?---Well the guys were very angry, they didn't believe that a bargaining period was just one final - one offer and there were all the issues that the guys weren't happy about signing off on, like the CBR role that we were playing, or were going to play. There were a whole range of issues that the guys weren't happy about.
PN410
Okay. Just for the Deputy President's information, I think you referred to CBR?---That is the chemical and biological, radiation component of the agreement. And the way it was presented that when we raised the issues, or clouded issues, they seemed to be working along the lines that we haven't really worked that out yet, but when that issue raises its head we will deal with it now, or deal with it then. But our understanding of an agreement was to have - the agreement is to have as like an adjudicator between two parties that if something arises then they go to that agreement and read it and say: well this is the way it is. Not to say: well we're going to work it out on the day, because it still leaves a big grey area.
PN411
In terms of this particular agreement how important was the chemical, biological and radio - was it radiological?---Well that was a huge concern.
**** GRAHAM JOHN BLACKFORD XN MR TRAINER
PN412
Yes?---All of the guys that I've talked to at Fremantle and in Perth and at lots of other stations, have said: well, we won't do the - we're happy to take that out of the - the equation, because this is a really big concern to us fire fighters on the ground, you know, we're the ones that have to deal with it and we don't consider what they're offering in this package, asking us to take on board, they didn't explain it to us too well, we didn't think that it was a good deal.
PN413
Just to assist the Commissioner can you tell the Commissioner - Deputy President, my apologies, what the role involves?---Well, I mean, all the hazards that - that come out of a biological - of a terrorist act. They - all those things weren't explained to us, they said: well, no we're going to deal with it, but we've only got a limited amount of training. The whole thrust of their presentation to us was: well you had better take it because this is the best you're going to get and even though we asked them to explain the grey areas and the concern that we had, they didn't have an answer for us. And as we came away from the meeting we really weren't any the wiser.
PN414
And just to finalise your evidence Mr Blackford, how many people from your shift attended the meeting, do you recollect the number?---Just each shift, so there would have been probably 10.
PN415
All right. Thank you Deputy President I have no further questions.
PN416
PN417
MS HUSK: Mr Blackford, did you feel that you were able to ask questions during the information session?---Yes.
PN418
Did you, or any of the other members of your shift, ask questions about the consequences of voting against the agreement?---Yes, we did, yeah.
**** GRAHAM JOHN BLACKFORD XXN MS HUSK
PN419
Do you think that you received enough opportunity to be informed about the provisions of the agreement?---I don't think so, no.
PN420
Do you understand that a number of provisions within the agreement, state that there is a commitment for consultation within the life of the agreement between the union and FESA to achieve the objectives?---Can you run that past me again?
PN421
Yes, certainly. Do you understand that there are a number of provisions within the agreement that state that over the life of the agreement, the union and FESA will negotiate and achieve certain objectives?---No, how would I know that?
PN422
Because it's written - it is actually written in some of the clauses of the agreement and also in the summary document provided by the organisation?---Well the agreement is a fairly lengthy document and I'm not familiar with everything that is in it.
PN423
THE DEPUTY PRESIDENT: Can you speak up a bit please?
PN424
THE WITNESS: Sorry.
PN425
MS HUSK: Can you tell the Deputy President whether you have read the agreement?---I have, yes.
PN426
Okay. Thank you. I have no further questions.
PN427
**** GRAHAM JOHN BLACKFORD XXN MR WALKER
PN428
MR WALKER: Mr Blackford have you got an example of the grey area you are talking about, these grey - - -?---Well, one of the grey areas was a light duties position that we had in town, where we had a ute driver and a box duty man and the last EBA, or the one before, it actually gave that position away to, you know, gain some ground. Now, Tony Druitt and - - -
PN429
But isn't it true that this position has been put back in the agreement?---Do you want me to finish?
PN430
No, I'm asking you another question?---Well do you want me to finish the first question?
PN431
No, I ask the questions, you have to respond?---Well I haven't finished the other question.
PN432
I'm happy with the other question as far as you've gone, I'm asking you another question, do you understand - - -
PN433
THE DEPUTY PRESIDENT: Mr Blackford if there is any further explanation, or clarification of any issues Mr Trainer will have the opportunity to ask those questions of you.
PN434
MR WALKER: So do you understand the new agreement actually puts that position back into place?---No, I don't.
PN435
So it is an issue that you raised in the meeting that you didn't understand that the new position was - - -?---The new position has only just been put back.
PN436
Okay, so you know that it has been put back?---Well I know now you've just told me.
**** GRAHAM JOHN BLACKFORD XXN MR WALKER
PN437
So you didn't know before you voted?---No.
PN438
Did that influence your vote?---Did that particular issue? No.
PN439
Do you understand the actual terms of the agreement in the quantum of wages that was offered in the agreement?---Did I understand what?
PN440
Do you understand the amount of wages that was offered in the agreement?---Yes, I have a bit of an understanding, yes.
PN441
What was that?---Well we were going to get 6 per cent and 6 per cent over 2 years.
PN442
Okay, that is all I have.
PN443
PN444
MR TRAINER: Thank you Deputy President.
PN445
Mr Blackford you were cut short in your response to a question on light duties, would you like to finish what you were going to say?---Well, this position was had been - we gave away in the last EBA. They said there would always be a position in town above the manning levels, so that if the manning level is 20 so there would be at least one or two positions for an injured person to rehabilitate. Now, that was two EBAs ago, now we haven't filled those positions on shift in those positions that we said there were going to be, since that - since two EBAs ago. It is only now that it has come back and we asked them about when - why can't we have those light duties positions, you know, why has it taken 4 years for that to come? And they said: well, you know, they didn't have an answer.
**** GRAHAM JOHN BLACKFORD RXN MR TRAINER
PN446
Thank you Mr Blackford, I have no further questions of the witness Deputy President.
PN447
PN448
MR TRAINER: Thank you Deputy President that is the material that we propose to present before you.
PN449
THE DEPUTY PRESIDENT: Thank you. Ms Husk is there anything that has arisen out of what Mr Trainer has put that you wish to make submissions on?
PN450
MS HUSK: Yes, sir, I would like to make a few further submissions. If I can go back first of all, sir, to section 170LR(2), which states that:
PN451
The employer must take reasonable steps to ensure both access to the agreement and that the terms are explained.
PN452
FESAs position is that it did take reasonable steps to ensure that both information was provided to the employees and access to the agreement was provided. My previous submissions have explained in some detail how that occurred. Perhaps it might be useful, sir, if I was able to call a witness to provide you with some further information about some of the information sessions that were provided to employees. And also perhaps to clarify some misunderstanding about one of the circulars that was presented, which is exhibit FESA4.
PN453
THE DEPUTY PRESIDENT: Well that is up to you, Ms Husk, whether you want to call any evidence.
PN454
MS HUSK: Yes, sir, I would like to call Mr Russell Stevens.
PN455
THE DEPUTY PRESIDENT: Mr Walker, are you intending to call any evidence?
PN456
MR WALKER: Make submissions, sir, but not to call any evidence.
PN457
THE DEPUTY PRESIDENT: Yes. Yes, proceed, Ms Husk, but I had assumed you weren't going to call any evidence but never the less.
PN458
PN459
MS HUSK: Mr Stevens, would you please tell the Deputy President your position?---Currently within FESA, I perform the role of the Acting Executive Director for Fire Services.
PN460
Can you tell the Deputy President how long you have held that position?---I've been in an Acting capacity since March this year and I've been employed by FESA since 1983.
PN461
And what is your substantive position within FESA?---My substantive position within FESA is the Director of Fire Service Metropolitan having responsibility of the total resources of the metropolitan area.
PN462
Thank you. We have heard evidence that an information session was conducted at Perth Fire Station that you attended. Would you advise the Deputy President whether you attended that session?---I attended a - an information session on C Platoon along with Howard Fiedler who's performing my role in my absence from that position. I'm not sure of the date that that session was provided.
PN463
Would you tell the Deputy President what information you provided at that session?---This session along with a lot of other sessions that were delivered by fire service managers throughout the - throughout the FESA organisation, was designed to - to impart to the career fire fighters the - what was contained within the enterprise, within the certified agreement. It was an information session to clarify matters, what - what matters were contained within the agreement and also some synopsis, given the agreement there were a lot of - lot of items there that would be resolved through consultation with the United Fire Fighters Union on the - how those matters would be processed through the life of the agreement.
**** RUSSELL JOHN STEVENS XN MS HUSK
PN464
Did you provide information to the members who attended the session about what would happen if they voted, no?---A question was - was raised from the floor on - on what would be the likely events that should the certified agreement not be - not be approved. That information was provided. I provided an opinion on - that - that there - firstly that there would be - there would no - be no back dating of the - of the wage period to the applicable date of 24 May and that it was likely that we would need to go back through negotiations and discussions which could involve some considerable period of time.
PN465
Did you provide information about what has been described as, first and final offer?---The concept of the first and final officer - offer, was discussed. The first and final offer has been an approach that you - that has been used consistently through the four enterprise bargaining agreements that have been negotiated by FESA. In line with the values of FESA of open and honest communication, we have - we have proceeded directly to the tabling of a realistic offer rather than going through the negotiation process. As I've said, this was a consistent approach that was done in the three preceding certified agreements.
PN466
May I show the witness FESA exhibit number 4, please?
PN467
Mr Stevens, you have in front of you a document that has been labelled, FESA exhibit 4, is that a document that you signed?---Yes, it is a document that I signed and authored.
PN468
Can you explain to the Deputy President the purpose of that document?---Prior to the commencement of the ballot, there was a number of spurious communications being communicated around fire stations, principally by facsimile. This was of great concern because many of the communications contained misinformation. In fact, there was a number of - there was a number of - of these communications that although headed up with the words: vote no to the EBA, contained little or no reference to the EBA. I, along with the executive management team of the Fire Service were concerned that this
**** RUSSELL JOHN STEVENS XN MS HUSK
miscommunication was not helping the certified agreement ballot process. I then, after considering the matter, issued a circular on 19 May to ensure that a number of information sessions were held and also that there were specific points of contact within the Fire Service division for people to gain further information. I was also influenced by that decision because the one point of contact we had prior to the circular being issued was Ms Husk and I was concerned that the number of - that the number of inquiries coming back were precluding her from carrying out the full range of her duties.
PN469
Thank you. I have no further questions.
PN470
THE DEPUTY PRESIDENT: Yes. Mr Walker?
PN471
MR WALKER: I have no questions, your Honour.
PN472
THE DEPUTY PRESIDENT: Yes. Mr Trainer?
PN473
PN474
MR TRAINER: Mr Stevens, you have FESA4 in front of you, would you agree with me that the ballot was already under way when you issued this?---Oh, I have FESA7 here in front of me.
PN475
MS HUSK: No, FESA4.
PN476
THE WITNESS: Oh - the - yes, I believe the ballot was commenced - - -
PN477
THE DEPUTY PRESIDENT: Well just for clarification, Mr Stevens, what you have in front of you, is it the circular of 19 May 2004, Executive Circular 7, 2004?---Yes, that's correct, sir.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN478
Yes?---I'm not - I'm not aware of the actual date but I understand this was issued some time in - in the ballot process.
PN479
MR TRAINER: All right, so that the date of 19 May not be correct?---I believe the date of 19 May, I don't off - without looking at notes, know that the date of the ballot, I know it was concluded on 1 June but I can't - I can't recollect from memory the date that it actually commenced.
PN480
I was just looking at the date of the circular itself. You have dated it 19 May 2004. Is that the date upon which it was despatched?---Oh, I am - I am of the understanding that is the case.
PN481
You would agree with me that it was despatched on 19 May, it would not have arrived at fire stations until the following day?---No, I believe it was faxed to fire stations immediately upon the signature being provided.
PN482
All right. And it never the less is the case that the ballot had commenced?---I understand that's the - that is the case, the ballot had commenced.
PN483
All right. Now, you talk about misunderstanding and misconception, did that only arise from the documents that were, as you describe it, circulating?---That was the principal - that was the principal concern that I was worried about, that many of the documents that were circulating amongst fire stations, widely circulating, had no relevance to the EBA process.
PN484
Did others convey to you that they misunderstood what was involved? Did you discuss, the fire fighters on shift, their understanding?---Not formally. But as part of the role, of any role, of management in the Fire Service, we would be speaking to people at all levels throughout the organisation and ascertaining what their feelings and knowledge of these subjects were.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN485
And did that contribute to your circular?---That contributed to the circular.
PN486
Yes. You have heard evidence about the session at Fremantle. You weren't present at that, were you?---No, that is correct.
PN487
Now, as I understand it, a number of district officers were also directed to give information sessions. Is that correct?---Yes, that was part of a deliberate communication strategy.
PN488
And when were they directed to give these information sessions?---I don't have that information specifically in front of me, but it was conducted at a briefing of all fire service managers including a country teleconference with those in the country. But I don't specifically have that date here, to hand.
PN489
Was it before 19 May?---I believe that session was held before 19 May.
PN490
Was it before the ballot opened?---I am not sure. I would have to go back and check my diary.
PN491
Was it as early as the day of the agreement having been reached, on or about 30 April?---No, it was sometime after that.
PN492
A week after, a fortnight after?---No, it was on or about when the information - in fact, the information was provided to some fire service managers to deliver to fire stations that afternoon. The briefing was delivered at Perth Fire Station at 9 o'clock one morning. A number of fire service managers - this is my recollection, a number of fire service managers took documentation to a number of career fire stations to commence the communication strategy in relation to the certified agreement.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN493
Can I just take you to, a little more clearly to dates, do I understand that to have been perhaps later than 10 May?---Look, I am not sure without looking at a diary and - - -
PN494
I understood you to say it was certainly not in the first week following agreement?---It was prior to the ballot being conducted.
PN495
All right. And do you know or was there a program for the conduct of these information sessions by district officers?---There was broad guidelines issued that they were to ensure that all the sections within the certified agreement were covered and explanations provided and where people were still not satisfied, then those - a collection of those matters be collected and explanations would be provided at a later date.
PN496
All right. Let me take that in two parts. What I wanted to establish from you, Mr Stevens, was whether there was an identified program for these district officers to attend the stations. Dates and times?---No, there was no organised program. It was done largely at the schedule and availability of fire service managers.
PN497
Did you satisfy yourself that it was completed before the ballot papers were released?---Feedback provided to me was that all stations were covered by a briefing from fire service managers.
PN498
The question was, did you satisfy yourself that the briefs had been completed prior to the release of the ballot?---I wasn't present at all briefings so I am relying on the feedback provided to me.
PN499
I see. Now, we have heard evidence that it was, I think, Mr Ryan that gave a session at Fremantle. Is Mr Ryan a district officer?---He was. And he was undertaking a role of the Acting Director for a short period of time in the Perth South Coastal region.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN500
And he was one of those you directed?---He was one of those, along with all fire service managers, to actively communicate the contents of the certified agreement, of the proposed certified agreement, at that time.
PN501
In this session that you had with your managers, did you express a view about the agreement at all?---Did - - -
PN502
Well, let me put it another way. Did you say to the people you were briefing, you favoured certification?---From a fire service management perspective, we wouldn't have favoured the - we wouldn't have put the - would put the document on the table if we didn't favour it, so I think that can be implied.
PN503
Yes. And did you instruct your district officers to convey that?---As part of the fire service management team, I think that they also would represent that same view, that it had been negotiated in good faith and that it had been fought not only through negotiation and discussion between FESA and the United Fire Fighters Union but the case to actually secure the funding for this agreement had been well fought at the highest political levels. And I think it was well thought that this had represented a good deal for the fire fighters.
PN504
Would you accept my proposition that each of those at the management meeting understood the Fire Service's position to be in favour?---I am not sure - and, again, I wasn't present at all the briefings, but the briefings were done on the basis of providing information. No-one would have - I would have anticipated that no-one would have provided or suggested their personal views. It was a - purely - the prime purpose of those sessions was to communicate the contents of the document.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN505
What I am asking about, Mr Stevens, is the meeting that you held with your managers. And I am putting it to you that your managers were clear about the Fire Service view of the agreement?---There was discussion. There was discussion at the meeting and I am unsure of what the message that was taken away by the managers and that was actually delivered. But there was clear - there was endorsement that - from the Fire Service that this was a fair deal and it had been negotiated not only through FESA - with the United Fire Fighters Union but at the request of government to ensure this was, I believe, the best deal that we could have done for them.
PN506
You would agree with me, Mr Stevens, that at any given time a group of fire fighters are rostered off on annual leave?---Yes, that is correct.
PN507
And that another group of officers are rostered off on long service leave?---Correct.
PN508
And that occurs according to a pre-determined pattern?---Correct.
PN509
And that the numbers combined are somewhere 120?---Yes.
PN510
In that vicinity?---Yes.
PN511
And that the Fire Service itself is well aware of the commencing and the ending dates for each of the changes of shift - - - ?---Yes.
PN512
- - - or changes of leave, I should say?---Yes, that is correct. But the circulars that were issued were issued to the home addresses for all those on leave, which is consistent with FESAs procedures and processes and protocols relating to circular issuing.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN513
You were aware that the chemical, biological and radiological component of the agreement was important?---It was one of the elements of the agreement.
PN514
It was one of the big ticket items, if I can put it that way?---It was - there were a number of elements. Yes, that was one of the elements.
PN515
All right. Just for clarity only, Mr Stevens, on 30 April you issued a circular which seems to say that we have almost reached an agreement. Was there agreement in place when that circular was issued?---Can I - - -
PN516
I can provide you with a copy just so - - - ?---And your question again?
PN517
I just note the first line where the document says "nearing conclusion". When you issued the circular, was there agreement?---I think that there was a small number of matters that needed to be clarified. And I - we were, as indicated here, very near to conclusion. There was a small element of detail only that needed to be concluded. That is my recollection.
PN518
Can you tell the Deputy President the date upon which each and every element of the certified agreement was agreed and, therefore, the whole document was settled?---Not without reference to files and I wasn't prepared for that question.
PN519
Was it some days after this, 30 April?---Again, I am not sure. I would have thought that we had reached agreement soon after that date, but I couldn't honestly be sure.
PN520
I have no further questions, Deputy President.
PN521
THE DEPUTY PRESIDENT: Thank you.
**** RUSSELL JOHN STEVENS XXN MR TRAINER
PN522
MS HUSK: I have no more questions, sir.
PN523
THE DEPUTY PRESIDENT: Yes. Mr Walker, are there any issues arising out of that cross-examination by Mr - - -
PN524
MR WALKER: No, I have got no questions for the witness.
PN525
PN526
THE DEPUTY PRESIDENT: Yes, Ms Husk?
PN527
MS HUSK: Just in summing up, sir, the last thing that we would like to say is that FESA does believe that the agreement was approved by a valid majority of employees. As I said to you earlier, a ballot was conducted by postal ballot in accordance with standard Electoral Commission procedures. And as I said to you before, 419 people voted in favour of the agreement and 361 against, which, in FESAs opinion, is approval by a valid majority of employees. It is FESAs submission that the process that was undertaken does follow all the statutory requirements and that the agreement, therefore, is appropriate to be certified by you today. Thank you, sir.
PN528
THE DEPUTY PRESIDENT: Mr Walker?
PN529
MR WALKER: I assume this is the final submission, your Honour?
PN530
THE DEPUTY PRESIDENT: Yes. You were asking whether you are the last person standing.
PN531
MR WALKER: It sprung me, because of the new evidence, I guess, being raised so late in the piece.
PN532
THE DEPUTY PRESIDENT: Yes. If you are asking whether the intervener has another go, no.
PN533
MR WALKER: Thank you. Your Honour, I guess going to those points that the interveners have raised, certainly I concur with the employer that it is our submission that they haven't made out that there wasn't a valid majority. Certainly we don't believe that there can be a concept of this ensuring understanding. I think if that was taken as part of this judgment, it would create an enormous precedent for the way in which these ballots and agreements are agreed to when there is, in some cases, companies of enormous size and requiring, sort of, resources to actually meet a higher test than I think has been placed in the Act by the Parliament. Certainly the Act says reasonable access.
PN534
And certainly - well, take reasonable steps. And certainly I think we have heard evidence that the employer, through their management and both the union, made those reasonable steps to ensure that the agreement was in place in workplaces and that certainly that people had an opportunity, and I think we heard the evidence from Mr Boe and Mr Blackford, that they had an opportunity to ask questions and they certainly were able to get those things answered and they should have had an understanding of the agreement. There are other things that come with the agreement that are issues of administrative requirement that probably the managers were referring to, where matters go to - that don't form part of an agreement, because our agreement is a settlement of a log of claims and it is employer/employee matters.
PN535
They are not matters that go to necessarily administrative matters that - how a particular provision is going to be administered by the employer. So, it is our submissions that the two issues, the clauses that have been, I guess, raised as an objection, have not been made out to be an issue in this case and that you should find that the requirements of the Act have been met and that an order should issue from today's date certifying the agreement as such. And that would conclude our submissions.
PN536
THE DEPUTY PRESIDENT: Yes, thank you. I will reserve whether the agreement meets the requirements of the legislation, thereby be certified. If it does not meet the requirements of the legislation, then depending on the nature of that not meeting the requirements, further opportunity may be made available for the parties to the agreement to take any actions to make it certifiable, should that position be reached. However, I will reserve my decision. This matter is adjourned.
ADJOURNED INDEFINITELY [4.57pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #FESA1 CIRCULAR DATED 30 APRIL PN174
EXHIBIT #FESA2 SUMMARY OF CERTIFIED AGREEMENT PN176
EXHIBIT #FESA3 CIRCULAR DATED 12 MAY PN179
EXHIBIT #FESA4 CIRCULAR DATED 19 MAY PN179
EXHIBIT #FESA5 CIRCULAR NUMBER 8-2004 DATED 25/05/2004 PN179
EXHIBIT #UFUA1 DOCUMENT ENTITLED: UFU MEMBERS PN188
EXHIBIT #I1 COPY OF FIREFIGHTERS' ROSTERS PN230
MORTON BOE, SWORN PN355
EXAMINATION-IN-CHIEF BY MR TRAINER PN355
CROSS-EXAMINATION BY MS HUSK PN378
WITNESS WITHDREW PN392
GRAHAM JOHN BLACKFORD, SWORN PN398
EXAMINATION-IN-CHIEF BY MR TRAINER PN398
CROSS-EXAMINATION BY MS HUSK PN417
CROSS-EXAMINATION BY MR WALKER PN428
RE-EXAMINATION BY MR TRAINER PN444
WITNESS WITHDREW PN448
RUSSELL JOHN STEVENS, SWORN PN459
EXAMINATION-IN-CHIEF BY MS HUSK PN459
CROSS-EXAMINATION BY MR TRAINER PN474
WITNESS WITHDREW PN526
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