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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 766
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT BLAIN
AG2004/5484
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Kaefer Integrated Services Pty Ltd for
certification of the Kaefer Integrated
Services Pty Limited MUJA Operations 2004
Certified Agreement
PERTH
10.07 AM, MONDAY, 26 JULY 2004
Continued from 21.7.04
PN522
THE DEPUTY PRESIDENT: Good morning. Before commencing I would like to have a brief statement of how each party would propose to proceed in the case. Mr Borlase first?
PN523
MR M. BORLASE: Thank you, your Honour. Mr Edmonds has provided the information as per your directions and I thank him for that. What I had thought was to hopefully put to rest this issue without having to go through lengthy proceedings this morning in terms of witnesses and lengthy submission, was to possibly just address these points and establish whether or not on the strength of those issues and certain issues that we will admit and clarify in respect to this, whether or not that will be sufficient for the purposes of the Commission in being able to satisfy itself pursuant to the Act. Failing that, I would suggest that as the intervener, Mr Edmonds proceed first to give his evidence and then if necessary we proceed further to give any evidence that may be necessary following that.
PN524
THE DEPUTY PRESIDENT: Thank you, Mr Borlase.
PN525
MR BORLASE: Thank you, sir.
PN526
MR L. EDMONDS: That sounds fine to us, sir.
PN527
THE DEPUTY PRESIDENT: Thank you. Before commencing, I would like to thank Mr Edmonds for the information that he provided in relation to not pursuing the argument about which the Commission expressed concern. That was the 10 per cent wage rise issue. That has assisted the proceedings. What I would like to clarify in the opening submissions of the agents representing the parties, is what it is that the Commission needs to determine and whether that is the satisfaction by the Commission that the specific statutory requirements of section l70LK, in particular LK(2) and (3) are satisfied or not and section 170LE, particularly LE(C) and (D) are satisfied, taking into account what is put to me this morning. So I would like to seek first of you, Mr Borlase, as to whether that really is what the Commission needs to determine.
PN528
MR BORLASE: Well, sir, I would suggest that those are probably the correctly identified sections of the Act based on the issues that have been raised by Mr Edmonds in his correspondence. They are, I think, primarily the issues at hand and effectively that in conjunction with section 170LU in terms of whether or not there is any reason that the Commission shouldn't certify the agreement and obviously being satisfied that section 170LT has been satisfied. But I think the only issues that Mr Edmonds in his documentation that he raises are issues pertaining to section 170LK(2) and (3) and section 170LE.
PN529
THE DEPUTY PRESIDENT: So in essence, do I take it that you have no disagreement except that you would draw the Commission's attention to its wider responsibilities under those additional provisions?
PN530
MR BORLASE: Yes, your Honour.
PN531
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?
PN532
MR EDMONDS: Yes, sir. Essentially that is correct, sir.
PN533
THE DEPUTY PRESIDENT: You agree with what the Commission has put as being what is required for it to determine?
PN534
MR EDMONDS: Yes, sir.
PN535
THE DEPUTY PRESIDENT: In this matter for the certification of this agreement. Thank you. Mr Borlase?
PN536
MR BORLASE: Thank you, your Honour. Addressing the first point in Mr Edmonds' letter, which primarily reads that:
PN537
We were instructed that while a number of copies of the EBA were supplied to the workforce in May 2004, there were not enough copies for each of the workers to have a copy to peruse in their own time.
PN538
This statement and obviously:
PN539
If the workers did not have the opportunity to see the agreement before the vote then this is contrary to the provisions of section 170LK of the Act.
PN540
Now the evidence, if it becomes necessary to lead such evidence in respect to that particular point, is that there were two, I suppose, bites at the cherry of this exercise at Mr Chamberlain, who is the Operations Manager of the company who has supplied the statutory declaration to you in conjunction with the initial application. The situation there was that in late April 2003, Mr Chamberlain revised the current Baines Harding agreement, brought it up to date effectively, and put an offer to the workforce at that particular time. He did not have sufficient copies of the agreement to give to everybody at that particular point in time. And we believe that is what the issue that this situation arises from.
PN541
Now a few days after that, Mr Chamberlain received back from employees a signed document. He then proceeded to provide that to the Chamber of Commerce and Industry, requesting assistance to have that document registered. When Mr Chamberlain, and this advice came from myself and the approach came to myself from Mr Chamberlain, and when Mr Chamberlain outlined the process that he had undergone, I explained to him that he had not followed the requirements of the Act in many different aspects because he wasn't familiar with the process. As a consequence of that - - -
PN542
THE DEPUTY PRESIDENT: I will just interject at that point. Did I hear you use the name "Baines Harding"?
PN543
MR BORLASE: Yes. That is the current agreement that applies. Kaefer Integrated Services or Kaefer Technology - sorry, Kaefer Integrated Services Proprietary Limited took over Baines Harding and so the Baines Harding agreement, and I don't have a reference for you at the moment by way of transmission of business provisions contained in the Act, continue to apply and applied to Kaefer Integrated Services. So effectively that document which was an existing section 170LK document was revised, put to a group of employees, there were not sufficient copies at that particular point in time for everybody to get it. Mr Chamberlain subsequently sought assistance from the Chamber of Commerce and Industry in registering that agreement.
PN544
In the process of seeking that assistance, he was advised that many steps had not been complied with pursuant to the Act and that he would need to re-start the process. As a consequence of that he did re-start the process and the evidence that he would lead in respect of that is that on 14 May he conducted a meeting with the employees down at the workshop at the Muja site and those employees were standing around in a circle at that meeting. He handed a copy of the notice and the agreement to all of the employees that were there. I think from there, there were two employees who were currently working night shift at that particular point in time and Mr Chamberlain gave copies to the supervisor to provide to those two employees.
PN545
Mr Chamberlain in subsequent conversation with that supervisor has had it confirmed to him that that did, in fact, occur that those two employees did receive those documents. There were then somewhere in the order of some half dozen additional copies left over following that meeting. Those copies were left in the lunch room of the employees and there was a copy of the notice and the agreement on the meeting board at all times. The company is a contracting company and numbers do fluctuate up and down. So the evidence of Mr Chamberlain is going to be that there - if it is at all necessary, that there were additional copies left over, they were left in the lunch room for people to be able to access and that at all times there was a copy up on the notice board or should have been because that is the place that he arranged for it to be left. And as far as he is aware that is what was done.
PN546
So in respect of section 170LK(2) and (3), we would say that all reasonable steps have been taken by the employer to ensure that people had a copy of the agreement available to them. The next issue that arises is under point 2 of Mr Edmonds' correspondence and that is a claim that workers absent on the vote date and it reads:
PN547
We are instructed that a number of workers were absent on the voting day and never had a chance to vote on the certified agreement.
PN548
THE DEPUTY PRESIDENT: Just before you proceed further beyond 170LK(2), is it your position that that submission is relevant to 170LK(3)?
PN549
MR BORLASE: Yes, it is, your Honour.
PN550
THE DEPUTY PRESIDENT: As well?
PN551
MR BORLASE: Yes, your Honour.
PN552
THE DEPUTY PRESIDENT: Thank you.
PN553
MR BORLASE: Yes, your Honour. Continuing quoting from Mr Edmonds' correspondence, it refers:
PN554
In particular, one worker was sick while another two were sent to work in Kalgoorlie for the day. Further, there are approximately 26 workers employed at Muja by the employer, yet only 18 workers voted in relation to the certified agreement. We are concerned by the discrepancy in the voting numbers.
PN555
Now if we address each of those points one by one. Yes, there was one employee who was sick on the day and did not vote at the same time as all of the other employees. However, Mr Edmonds visited - I beg your pardon, Mr Chamberlain visited that employee at his home on the day of the vote in the company of two other employees, a Mr John Muran and a Mr Frank Blackham and asked that employee for his vote. He voted, not by way of secret ballot like the others but by a verbal indication of which way he would vote and he indicated that he was not in favour of the agreement.
PN556
So effectively there were 19 people who voted, 14 voted in favour of the agreement and 5 voted against the agreement. Having regard to two employees who were sent to Kalgoorlie, there had been two employees, yes, they were sent to Kalgoorlie. The intention with those employees is that they would not be returning to work at Muja. So it was not expected that they would be working under the agreement and consequently they were not entitled to vote. The requirements of section 170LE of the Act is that the vote is conducted of people who were employed at the particular time whose employment is or will be subject to the agreement. And the intention of the company was that those two people would not be returning to Muja.
PN557
Now in respect of one, it was intended that his work would finish at the end of the contract at Kalgoorlie and this in fact was the case and this did occur. He finished his employment. The other employee had been intended to be sent on to Port Hedland to work at Port Hedland where this agreement would not apply. The Commission may be aware through its general knowledge that there was a tragic accident up at Port Hedland at the BHP site. As a consequence of that particular accident a lot of the work was cancelled and the work that this employee had been intending to go and work at was withdrawn from the company so he did not proceed. As a consequence of that, his employment was terminated.
PN558
Approximately a week after his employment was terminated, there was an opportunity for work with the skills that he possessed which arose again at Muja and he was offered employment there, which he took up. However, we would say that at the time that the vote was taken there was clearly no entitlement for him to vote. There was no intention of the company to have that employee back at Muja and so consequently he was not entitled to vote and therefore there is no discrepancy and no offence against the Act in respect of that particular employee. The next - - -
PN559
THE DEPUTY PRESIDENT: Just clarify for me a little further there the reason as to why he was not entitled to vote?
PN560
MR BORLASE: When he was sent to Kalgoorlie, the intention was that from when he finished the work at Kalgoorlie he would then proceed to go to Port Hedland to do work up there, he was a casual employee. And at the end of the employment at Port Hedland, for whatever period of time that went on then there was no intention, his employment would have finished with the company.
PN561
THE DEPUTY PRESIDENT: Right.
PN562
MR BORLASE: And so he would not have been working and subject to the agreement. Section 170LE(2) of the Act specifies that:
PN563
For the purposes of this Act the valid majority of persons employed at a particular time whose employment is or will be subject to an agreement, make the agreement.
PN564
And in 170LE(C):
PN565
That the employees give all the persons so employed a reasonable opportunity to decide whether they want to make the agreement and will give the approval.
PN566
Now that person was not so employed because there was no intention that he would be actually working under that agreement ever. It was purely because of the unfortunate accident up in Port Hedland that he did not proceed to there and his contract of employment was terminated at the end of the period that he was engaged at Kalgoorlie. So when the vote was taken there was no intention that he would be working under that agreement, there was a break in his employment. It was just purely by the fact that the work at Port Hedland was no longer available and then simply by work opportunities arising through the contracting nature of the work that the company is involved in, that he was offered a new contract of employment.
PN567
THE DEPUTY PRESIDENT: So are you saying that in effect he was not employed at a particular time as per 170LE?
PN568
MR BORLASE: Yes, that is correct.
PN569
THE DEPUTY PRESIDENT: Thank you.
PN570
MR BORLASE: He was employed by the company but not for the purposes of section 170LE.
PN571
THE DEPUTY PRESIDENT: That clarifies that.
PN572
MR BORLASE: Yes, he wasn't at Muja, he wasn't intended to be covered by the agreement and at the time of the vote he wasn't covered either by the Baines Harding agreement nor was he intended to be covered by the new agreement. In respect to the next point in that paragraph, that there are approximately 26 workers employed at Muja by the employer, there are not 26 workers employed at Muja. There are - at the time of the vote there were 19 employees employed at Muja plus there were two supervisory staff. Two supervisory staff not covered by the agreement, they are outside of the scope of the award and the agreement and so there are only 19 employees.
PN573
At the current point in time there are less than that number employed at any particular point in time. And this is as a consequence of black bans that are in place by the AMWU and employees of United KG on equipment that the company might otherwise be working on. As a consequence of those black bans being put in place, casual employees that the company had have been laid off obviously and call on on an "as required" basis. So at any one particular point in time there is only approximately 10. Of the 19 people who were employed at the time of the vote who were intended to be covered by the agreement, they effectively roster around to share the work out between them because of the existence of these black bans that are in place by the AMWU. So there is no discrepancy, we say in the numbers of people who were employed at the time by the company and who voted.
PN574
Having regard to the third point, sir, we say that there is really no need to address that particular point that is raised in the correspondence because it doesn't go to section 170LK, nor does it go to section 170LE. Mr Edmonds would be aware that, as would be yourself, your Honour, that employees who are employed at the time who are intended to be covered by the agreement have a right to vote and that is what occurred. People who are casual employees were covered by the existing agreement at the time, they were intended to be covered by the agreement in the future in terms of the work that the company had. And as a consequence, they had an entitlement to vote.
PN575
Now just as an aside, the document that was voted on and approved is essentially the same document as that which was given to a smaller group of employees back in April and that was the incident that I referred to you in the very first instance today where the company did not have sufficient copies. Now the objection that is raised here is simply that there are casual employees who had the opportunity to vote on this agreement and an indication that maybe that outweighed the vote of permanent employees. Now the vote that was taken, was taken by way of secret ballot so the company doesn't know precisely who voted in favour or who voted against the agreement, apart from that one employee who was sick who the company went to visit and who gave his vote verbally. So we know that particular person voted against the agreement.
PN576
But in respect to the others, we don't know who voted which particular way because it was a secret ballot and that is the whole purpose of a secret ballot if you like, to allow people to cast their vote in confidence without fear of undue pressure from any particular source. And that is effectively what has occurred. However, as a matter of interest, as I said that first document back on 23 April that was given is substantially the same or was substantially the same as the agreement that was voted on on 6 July. And the four employees who were permanent employees of the company at that particular time all signed the agreement in favour of making the agreement.
PN577
So from that perspective, it is an indication possibly that those four employees were quite happy with the agreement and may well still remain happy with the agreement. Having said that though, that is not the issue for the purposes of section 170LE, the issue for the purposes of section 170LE is that those employees who were employed at a particular time and who would be subject to the agreement make or genuinely make the agreement and have the opportunity to vote and that is exactly what has occurred. In fact, there is an inconsistency between the issues raised in point 2 and point 3 of Mr Edmonds' correspondence. One is saying: Oh, not enough people voted. The other is saying: Too many people voted. So there is just no consistency in the argument there.
PN578
But as I indicated certainly it was intended that those people would be employed, had the agreement proceeded through in the normal course of events and been registered last week as was planned, had the black bans not been in place by the AMWU and the employees of the United KG Proprietary Limited, then work would be proceeding as normal. Those people that voted on the agreement would be working now and would be working subject to this agreement. What the Commission has to look at is, what was intended at the particular point in time when the vote was taken and not look at circumstances which may have arisen subsequent to that which were totally unintended and beyond the employer's control.
PN579
Now if the AMWU is quite happy for that black ban not to apply to Kaefer employees, then all of those people that voted would be able to, hopefully if they were available of course, given the casual nature of their employment, be able to return to work and do all of the work which is the subject of the contract and they will be working subject to this agreement once the agreement is certified by the Commission. So all of those factors that are required for section 170LE are present and have been complied with.
PN580
Going on to page 2 of Mr Edmonds' correspondence, while it is not numbered but it is the first paragraph of that page, the issue of the reason for the large support amongst the temporary workforce being based on the belief that they will be paid wages contained in clause 18, backdated to 1 May. Now that was an issue raised that the agreement only applies from the date of certification, no such back pay is available to the workforce. I can only assume that Mr Edmonds is not raising that point in any way of any degree of seriousness. Just about every single agreement which I have been associated with and I'm sure this Commission has been associated with involving the AMWU who Mr Edmonds represents, has provisions of that same nature where there is wage increases that are to apply from a certain period of time, however given the effects of section 170LX of the Act, the agreement as your Honour is aware, can only apply from the date of certification.
PN581
However, as an administrative exercise and as a part of the negotiation process which has usually occurred in that process, there has been some degree of back-dating of wages that may well have been agreed. And to that end, this is no different from any other agreement that the AMWU has brought before this Commission. Now I am authorised to say to the Commission that the company will abide and will honour what is contained in that agreement. However, if the submission of Mr Edmonds is such that the provisions of that nature are such that employers don't have to make back payment, he places in jeopardy a whole range of agreements which his union is responsible for negotiation and I'm sure that is not his intent. However, as I've indicated the company is going to honour that aspect of the agreement once it is certified and fully intends to abide by the terms of the agreement once it is certified. The last point, I note, that Mr Edmonds has received instructions that the submission I put before the Commission last week is, in fact, accurate regarding that 10 per cent wage rise, so I don't need to address that any further. I would hope, your Honour, that with those submissions and any response that Mr Edmonds needs to make to those submissions, that that should put sufficient clarity before yourself for you to be able to reach a conclusion that the requirements of the Act have been met and the agreement is properly before you and that the agreement should be certified. May it please the Commission.
PN582
THE DEPUTY PRESIDENT: Thank you. In relation to point number 3 in relation to the temporary workers, is the gist of what you put to me that your view is that that is not relevant - - -
PN583
MR BORLASE: Yes, your Honour.
PN584
THE DEPUTY PRESIDENT: - - - to section 170LE?
PN585
MR BORLASE: Yes, that is correct. The requirements of section 170LE are quite clear. That those people who were employed at the time whose employment will be covered by the agreement are to be given a reasonable opportunity to decide whether they want to make the agreement or to give the approval. So, if we were to exclude those people from voting, we would not have complied with section 170LE because it was quite clear the intent of the company was that those people would be employed and would be subject to that agreement once it was certified. So, they have to have the opportunity to vote.
PN586
THE DEPUTY PRESIDENT: Thank you.
PN587
MR BORLASE: Thank you, your Honour.
PN588
THE DEPUTY PRESIDENT: Mr Edmonds?
PN589
MR EDMONDS: Yes, sir, certainly, sir. Thank you, sir. And I thank Mr Borlase for clarifying the issue of the back pay, sir, and we don't intend to press that any further, sir. Other than to say that we would seek to call some evidence in relation to the first three issues we have raised in our correspondence, sir.
PN590
THE DEPUTY PRESIDENT: Before proceeding to do that - - -
PN591
MR EDMONDS: Yes, sir.
PN592
THE DEPUTY PRESIDENT: - - - I would appreciate some explanation from you as to why it is that your position will be that there has not been compliance with the Act.
PN593
MR EDMONDS: Yes, sir. Thank you, sir. If I can say in relation to point 1, sir, we certainly don't recall evidence today, sir, to say that not all the workers received a copy of the certified agreement, notwithstanding the submissions of Mr Borlase. We certainly have witnesses here who are able to say that they haven't received a copy of the proposed certified agreement, sir. And as such, that certainly doesn't comply with 170LK(2) and 170LK(3), sir. And we are certainly willing to call that evidence, sir. In relation to point 2 of my grounds put to the Commission on 23 July, sir, I would say, sir, that we appear to have some discrepancies with the numbers.
PN594
Mr Borlase has said that at the time of the vote there were 19 employees employed by Kaefer at Muja. 14 voted in favour and 5 voted against. Yet we have a witness here today, sir, who was sick on the day the vote was taken who didn't vote. So, obviously there is at least one vote that has appeared out of nowhere, sir, in that there were only 19 people employed. 14 were in favour. 5 were against. Which equals 19. Yet we have got someone here who was an employee who was sick on the day the vote was taken who didn't vote for the agreement or who didn't vote in relation to the making of the agreement. So, we would say in those circumstances, sir, we would certainly seek some clarification as to how those numbers are reached.
PN595
THE DEPUTY PRESIDENT: Did the employee concerned have the opportunity to vote?
PN596
MR EDMONDS: Well, no, sir. He was sick on the day, sir, and he certainly wasn't contacted in relation to that vote.
PN597
THE DEPUTY PRESIDENT: Thank you.
PN598
MR EDMONDS: My instructions are, sir, that on the day the vote was taken the workers didn't know that day that the vote was going to be taken. The ballots just turned up on that day, sir. So, we would certainly say, sir, he had no way of preparing or making sure he was available to take a vote, sir. So, we would say that in those circumstances, at least on the instructions that I have got in front of me, there should have been or there is certainly an employee or there is certainly a vote that has been cast in relation to the vote, sir, but it hasn't been cast by the worker who was sick, sir. So, there is an extra ballot that has appeared out of nowhere.
PN599
In relation to the issue of the Kalgoorlie workers, sir, we have certainly got one of those workers present today, sir, who was in Kalgoorlie on the day the vote was taken. He was certainly never told that he was to be moved on to Port Hedland after the vote was taken, sir, and he was certainly never terminated, sir. And he worked at Kalgoorlie for a short period of time before returning back to Muja to his normal job. And he did not get to vote in relation to the agreement either, sir. So, obviously there is a disparity in the facts. So, in those circumstances, sir, if there is a disparity in the numbers of employees and the numbers of votes cast, and it appears that there has been extra ballots case or certainly more ballots than there are employees or, in the alternative, there has been precisely the same number of ballots as there are employees, yet there are some employees that didn't get to vote, then we say in those circumstances, sir, it casts the whole ballot in a poor light.
PN600
And in those circumstances, we would say that the agreement should not be approved. The ballot should be run properly and the vote re-taken. Finally, sir, in - - -
PN601
THE DEPUTY PRESIDENT: In relation to that - - -
PN602
MR EDMONDS: Yes, sir.
PN603
THE DEPUTY PRESIDENT: - - - what was the number of workers involved?
PN604
MR EDMONDS: Well, the submissions of Mr Borlase - - -
PN605
THE DEPUTY PRESIDENT: In relation to the Kalgoorlie workers, was that one or two or - - -
PN606
MR EDMONDS: I am instructed, sir, that it was two employees that were sent to Kalgoorlie. I am instructed, sir, there was two employees sent to Kalgoorlie. And at least one of them has returned to the Muja Power Station, sir, without being terminated in between. So, there would be a disparity, I suppose, on the evidence in front of you. In those circumstances, sir - and I suppose it is a question of fact as to whether someone has been terminated or not, sir. But we would say, sir, that in those circumstances if there is a disparity between the numbers of employees and the numbers of votes, and it appears that there is more votes than there are employees, then there is a significant concern about the ballot, sir. In those circumstances, sir, the agreement should not be approved where there is extra ballots floating around. Finally, sir, in relation - - -
PN607
THE DEPUTY PRESIDENT: And that discrepancy would be two, would it?
PN608
MR EDMONDS: Well, we would certainly say that there was two employee that should have had the opportunity to vote who didn't get to vote. Because the submissions we have today is that it was not intended that they would be actually coming back to Muja. But we would say that they are. And that was what was intended in relation to those employees. And then we would say, sir, that as well as those two employees who didn't get to vote, there was another employee who didn't vote who would have been entitled to vote, yet it appears 19 ballots were cast in any event and there was 19 employees on Mr Borlase's - on his comments to you today, sir, there was 19 employees, there was 19 ballots cast, yet there was an employee who should have been entitled to vote who didn't get to vote.
PN609
THE DEPUTY PRESIDENT: Is that the sick worker?
PN610
MR EDMONDS: That was the sick worker, sir.
PN611
THE DEPUTY PRESIDENT: So, a discrepancy of three?
PN612
MR EDMONDS: Well, there is certainly three workers that should have voted, sir, and it appears that there may be an extra ballot floating around as well, sir.
PN613
THE DEPUTY PRESIDENT: Are you saying four?
PN614
MR EDMONDS: Well, on the submissions of Borlase, sir, there was 19 employees, sir. There was 19 votes. Yet we have at least one worker that didn't vote. So, that means there is 20 employees where, indeed, there should have only been 19 or there is certainly 19 ballots when only 18 workers would have voted. And as well as that, sir, there was two employees that went to Kalgoorlie that never got the opportunity to vote that, we say, should have had an opportunity to vote. So, there is a discrepancy, sir. But it is more than just a discrepancy of three workers, sir. It is a discrepancy as to the number of ballots cast as opposed to the number of workers present.
PN615
MR BORLASE: Your Honour, I think I - - -
PN616
THE DEPUTY PRESIDENT: Mr Borlase?
PN617
MR BORLASE: - - - can address these issues without the need for evidence.
PN618
THE DEPUTY PRESIDENT: Well, before you do, I will let Mr Edmonds complete his submissions and then I will come back to you.
PN619
MR EDMONDS: Thank you, sir. And, finally, sir, in relation to the issue of the temporary workforce, sir, it was certainly never envisaged in section 170LK that the employer would be able to essentially wait for the ebbs and flow of their workforce to be such that their permanent workforce who have rejected the agreement, their permanent workforce is so outweighed by their casual workforce, sir, that the agreement automatically gets up. Then the casual employees leave and the permanent workforce, of which there is only a very small number, the permanent workforce are left essentially with this agreement, sir.
PN620
Sir, that is why that issue is raised, sir, is that there is a large period of time or certainly a large gap in time between when the agreement was given to the workers and when the vote was taken, sir. And, indeed, I think it is some 2 months, sir. And certainly it appears that period of time was left to go, sir. Sorry, the written notice was provided on 14 May, sir, and the vote was taken on 6 July. Now, if it appears that the purpose of that extended period of time was to enable the workforce to reach a level where the agreement was going to be approved, sir, then we would say that that is certainly not appropriate and that is certainly not the intention of 170LK, sir.
PN621
And we would say certainly that this agreement had, at one point, been - actually it was rejected by the workforce at one stage, sir. And if the same agreement had been put to them again in the future, sir, except with a different composition of the workforce, then we would say that that is not appropriate. So, in those circumstances, sir, that is why that issue is raised.
PN622
THE DEPUTY PRESIDENT: How is that not consistent with 170LK?
PN623
MR EDMONDS: Well, certainly, when section 170LE talks about a valid majority of employees, it talks about a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement. They make or genuinely make the agreement or approve or genuinely approve the agreement. If that genuine approval, sir, is based upon waiting until the permanent workforce is substantially outweighed by the casual workforce until the vote is taken, then we would say, sir, then that is not genuine approval for the purposes of the Act.
PN624
And while by a strict legal definition, sir, it may pass the requirements of that section, sir, the equity and good conscience of the matter, sir, should lead the Commission to determine that it is certainly not appropriate for an agreement that has been knocked back by the workforce in the past, it is not appropriate to wait until the numbers are such that it can be approved, I suppose, sir. Sir, that is essentially my submissions, sir. Now, if Mr Borlase has got some response to them, sir, then I will sit down and - - -
PN625
THE DEPUTY PRESIDENT: In relation to the first submission that you made that not all of the employees got copies of the certified agreement, how many didn't?
PN626
MR EDMONDS: On my instructions, sir, I have got at least one employee who didn't get a copy of it, sir. I don't know how many others didn't copies, sir. But certainly if there is at least one, sir, then it may be reasonable to infer that there is more than one.
PN627
THE DEPUTY PRESIDENT: Thank you. Mr Borlase, you had a submission about replying without the need for evidence.
PN628
MR BORLASE: Yes, sir. Sir, in respect to that particular point, the requirement of the Act - and we acknowledge that due to the contracting nature of the company that numbers fluctuate up and down. And, certainly, in respect of that particular point, the evidence, if it is necessary to be led, and certainly the submission from the bar table is that there were employees that were employed subsequent to 14 May but there were approximately a half a dozen of the agreement that were left over which were left in the employees lunch room and with a copy posted up on the employee notice board in the room.
PN629
So, what we say in respect of that is that not everybody may have been handed it but the company did take reasonable steps to ensure that people would have that in writing. And they were in a place predominantly visited by employees. It was in a prominent place where people would see it. And so from that aspect, we say that, given that the company does have fluctuating numbers, it did take reasonable steps in accordance with section 170LK to make sure that those requirements under sections 170LK(2) and (3) were complied with. And so from that basis, we say that that step satisfies the requirements of the Act from that particular point and that the Commission can be satisfied on that action of the employer having satisfied the requirements of the Act.
PN630
The next particular point is the discrepancy in numbers. And on my counting of the way Mr Edmonds has put it to the Commission, there is a number of three employees. There are the two employees who went to Kalgoorlie and as I have indicated to you there, those employees were casual employees. One of those employees did not return from Kalgoorlie, as had been the intention of the company that he would not continue to work for the company after that particular point in time. The second employee was a casual employee. He ceased work for a period of, I am instructed, some 8 to 9 days after the work at Kalgoorlie finished. And as a casual employee, his employment was terminated.
PN631
And the intention of the company had been to send him, had he so chosen, up to Port Hedland. Now, that may or may not have been communicated to him prior to him going to Kalgoorlie or while he was at Kalgoorlie. The work change and instructions coming through from BHP may have come through at a point that it was not necessary to communicate that to him as a casual employee. However, there was that break in employment after he finished at Kalgoorlie and it was only by dint of the fact that more work became available for which he was suitable that he was offered employment. So, again, at that particular point in time he was not an employee for the purposes of section 170LE.
PN632
The third employee who was sick, again, is a casual employee. He was off sick and he was not employed at the time and as far as the company was aware, didn't believe that he would be returning to work and I am instructed that as far as Mr Chamberlain is aware, he has not returned to work and been offered further employment, as much as anything, due to the casual nature of his employment and also to his illness. So, again, he is not an employee for the purposes of section 170LE. So, that removes, in our view, any discrepancy between the numbers of people who voted and those people that Mr Edmonds refers to.
PN633
In response to the third issue which has been raised, that of the temporary employees voting for the certified agreement, the numbers of employees who - firstly, Mr Edmonds made an assertion that the agreement had been rejected. Now, that is not the case. The document that was put in April came back to Mr Chamberlain signed by the permanent employees and they were in favour of making the agreement. Now, whether they subsequently voted in favour or not, as I said before, that is unknown because it was a secret ballot and it is, in our view, irrelevant anyway. In terms of the delay between 14 May and the vote being taken, there has been an assertion made that it was done for some nefarious reason.
PN634
Now, again, that is not true. The vote had been intended to be taken on 31 May and it was on that day or the day prior that Mr Chamberlain received an advice from a Mr Buckley that in accordance with the notice that had been given, he wished to have the union represent him in meeting and conferring with the company about the agreement. And then there was a subsequent delay which took place following that, to endeavour to allow that process to take place before the decision was eventually taken that no progress was being made there and the company decided to proceed with the vote. So, there is nothing in there in terms of a fluctuation of numbers or a building up of numbers to deal with that.
PN635
The evidence would be, if necessary, that there were a large number of employees who were present at 14 May and who would have been present at 31 May. Somewhere, I think, in the order of 16 to 17 employees initially receiving all of that documentation. So, it is not the case of the company trying to build up numbers to outweigh some small group of employees. And as we said, we have no reason to believe that those permanent employees were not in favour of it, given that the document is the same as one which they had agreed to and put their signature to on 27 April. And also, this isn't a matter of equity and good conscience either.
PN636
As Mr Edmonds has said to you in his submission, it is not a matter of law that he was putting to you in terms of whether the agreement was genuinely made or not when there is a vote. What the Commission has to be mindful of is what was lawful, what was required by the Act, and what was done by the employer. And we say what was done by the employer was consistent with the Act. May it please your Honour.
PN637
THE DEPUTY PRESIDENT: Thank you. The Commission is bound by the Act and needs to be satisfied about what was done and that it did comply with the requirements of the Act. In relation to the submission about the lack of copies of the proposed agreement, the Commission needs to be satisfied that the employer has taken reasonable steps to ensure that every person employed either had or had ready access to the proposed agreement. Therefore, if it is the position of Mr Edmonds that there is a serious question for the Commission to consider that there may have been a breach of that provision, and on the basis that Mr Edmonds is able to adduce evidence to demonstrate that, then I feel bound to allow to give him the opportunity.
PN638
But clearly on that basis. That there has to be evidence which is clear and which is relevant to the issue. And Mr Borlase would have the opportunity to cross-examine that witness to assess from his point of view as to the relevance and the accuracy of the evidence. Therefore, it is my position, having heard what has been put, that continued submissions are unlikely to resolve that issue and it may, therefore, be necessary for evidence to be called. In relation to the question of the workers absent on the vote day, the Commission, again, must be satisfied that 170LE is met.
PN639
But I do note that 170LE, which refers to a valid majority of employees, is quite specific in terms of those persons being employed at a particular time and their employment is or will be subject to the agreement either genuinely making the agreement or approving or genuinely approving it. So, I would expect also that the question here of the employer giving all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval, needs to be very closely addressed in any evidence that is put, given that the provisions of 170LE are fairly generally expressed, as I have just outlined them.
PN640
So, therefore, I view, Mr Borlase, that we should proceed to hear the evidence, given that the submissions that have been put do not appear to have resolved the issues in a way which is not contentious and in a way which is final.
PN641
MR BORLASE: With respect, your Honour, I do disagree a little bit there. As I understand the evidence that Mr Edmonds would propose to lead with respect to an employee not having a copy of the agreement handed to him, we concede that. So, there is no need for evidence to be called about that. We concede that there may have been an employee who did not get the agreement. But what we do say is that we took reasonable steps, and those reasonable steps were leaving additional copies in the lunch room and a copy up on the notice board, the employees union notice board that is there. And so we say that that satisfies the Act.
PN642
Even if the evidence is called that one of the people that Mr Edmonds has in the room with him did not receive the agreement, we are prepared to concede that particular point. But what we say is that that is not the test. The test is what steps that the employer took and what we are saying there is that there were copies left in the lunch room. There was a copy up on the notice board. And that is a reasonable step for the employer to take where there is fluctuating numbers of employees in a contracting environment, that they have access to the agreement and to the notice. And so, there will be no cross-examination or anything of that nature, you know, given that that is probably what the evidence would be of the employee, that he didn't receive it.
PN643
So, as I said, that is conceded. But we what we say is that we still took reasonable steps in accordance with the Act and that is what we say you should be satisfied about, not whether or not one employee can put up his hand and give evidence that he didn't receive it.
PN644
THE DEPUTY PRESIDENT: Do I take it, Mr Borlase, that you would be in a position to adduce our own evidence to demonstrate that point you just made?
PN645
MR BORLASE: I have a statutory declaration which I can hand up to our Honour that outlines that that is exactly what occurred.
PN646
THE DEPUTY PRESIDENT: Well, the Commission already has the statutory declaration but I am asking - - -
PN647
MR BORLASE: No. This is a new statutory declaration that has been prepared in response to the allegations that have been made. It is just simply time saving, it is a question of Mr Chamberlain either going into the witness box and saying it or me providing to your Honour. I am happy to put Mr Chamberlain in the witness box if need be for it, but unless Mr Edmonds is saying that the company did not take that step and he is prepared to concede, as I have been prepared to concede in terms of the evidence that his person may provide in respect to that, we can simply save ourselves a lot of time in respect to that particular point.
PN648
THE DEPUTY PRESIDENT: Thank you, Mr Borlase. Well, certainly the Commission does want to ensure that its time and resources are spent wisely and that time is not wasted. That point is certainly very pertinent and if you wish to submit a further sworn statutory declaration then that is open to you to do that and if you wish to do that at this point before proceeding then it can be done now.
PN649
MR BORLASE: Yes, your Honour, if necessary. Yes, I would say, however, that the - I will leave it at that. I will hand up the statutory declaration, your Honour. It is a statutory declaration of Mr Ross Chamberlain.
PN650
THE DEPUTY PRESIDENT: Thank you. Do you wish to tender that?
PN651
MR BORLASE: Yes. I do, your Honour.
PN652
THE DEPUTY PRESIDENT: I am just considering a point of procedure here, which is the question of confirmation. As I understand it, it is from Mr Chamberlain, is that correct?
PN653
MR BORLASE: Yes. That is correct.
PN654
THE DEPUTY PRESIDENT: The document handed is the document that has been sworn by him?
PN655
MR BORLASE: Yes, it is, your Honour.
PN656
THE DEPUTY PRESIDENT: I accept what you are saying but I am just really raising a point of formality and correctness.
PN657
MR BORLASE: Sir, you can either accept it in the form that I offer it to you or I can put Mr Chamberlain into the witness box to test that this is his statutory declaration, if you so desire.
PN658
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?
PN659
MR EDMONDS: Sir, yes, we would certainly want to have the opportunity to cross-examine Mr Chamberlain on his statement, sir, on his statutory declaration, sir. So I would prefer that he was in the witness box, sir.
PN660
THE DEPUTY PRESIDENT: I am actually just raising the initial point of Mr Chamberlain indicating to the Commission, by way of evidence, that this is his statutory declaration.
PN661
MR EDMONDS: Well, sir, I think that that is probably not necessary to put him in the witness box to indicate this is his statutory declaration because obviously he has signed it, sir. However, for the purposes of fairness to us, sir, we would certainly seek to cross-examine him on the statutory declaration because if we don't have that opportunity then obviously its weight is diminished, sir, and certainly if we do have the opportunity to cross-examine him on it, sir, and he is able to address our queries in a satisfactory manner then obviously, sir, there are no problems, sir, but essentially this is his evidence-in-chief, sir, we just seek to cross-examine on the issues raised in this.
PN662
THE DEPUTY PRESIDENT: Thank you. In that circumstance I will not require Mr Chamberlain to give evidence in relation to this document being his statutory declaration and will accept it but I would, for the purpose of clarifying the procedure, ask you, Mr Borlase, if you would wish to call Mr Chamberlain, taking into account what Mr Edmonds just said about his intention or his wish to cross-examine.
PN663
MR BORLASE: Yes, sir. I suppose in respect of the point or even the need for the applicant to go through this particular step we would say that the onus isn't on us to do this. The objection was of the union, that somebody did not get the agreement and we conceded that, what was said, and what was already in the evidence before you in terms of the statutory declaration is that people have had access to it.
PN664
Now, as I understand it, that is not challenged by Mr Edmonds, that there were additional copies and that Mr Chamberlain arranged for that to go onto the noticeboard and - - -
PN665
THE DEPUTY PRESIDENT: Well, at this point I am just simply wanting to look at the hearing procedure and the question that is clearly before me is that Mr Edmonds presumably would go first and call his witnesses, which you could cross-examine if you wish, and then subsequently the question would be then whether you would be calling Mr Chamberlain or not.
PN666
MR BORLASE: Well, I suppose in respect to that it would be a question, whether I call Mr Chamberlain, would become a matter of whether it became necessary to do so as a consequence of any evidence that Mr Edmonds would lead. As I said, the evidence that Mr Edmonds is obviously going to lead in respect to point 1 was that he has a person here who can say that he did not receive a copy of the agreement and, as I said, we concede that he may not have had a copy of the agreement - - -
PN667
THE DEPUTY PRESIDENT: Yes. I have heard that point loud and clearly.
PN668
MR BORLASE: Yes.
PN669
THE DEPUTY PRESIDENT: And I would simply repeat that what I have said to Mr Edmonds is that the evidence that he adduces will need to be relevant to the provisions of the Act that I have referred to and which agents have confirmed as being the relevant issue before the Commission.
PN670
MR BORLASE: Well, what might be appropriate is if I withdraw that statutory declaration at this point in time, your Honour, and we will wait and see what becomes necessary to do from there in terms of any evidence and I will just complete my submissions in respect to that. So - - -
PN671
THE DEPUTY PRESIDENT: In relation to withdrawing the - - -
PN672
MR BORLASE: The statutory declaration.
PN673
THE DEPUTY PRESIDENT: The Commission hasn't sighted it and it hasn't been identified as an exhibit, so it is open to you. I would like to hear Mr Edmonds' view but it is open to you to proceed that way if you prefer.
PN674
MR BORLASE: Well, that is certainly my intention at the moment, if it please the Commission.
PN675
THE DEPUTY PRESIDENT: Mr Edmonds?
PN676
MR EDMONDS: Thank you, sir. We're certainly happy to proceed on that basis, sir.
PN677
THE DEPUTY PRESIDENT: All right. Now, in terms of logistics, can you indicate your time estimate of the period of adducing of the witness evidence?
PN678
MR EDMONDS: Well, sir, maybe if I could have just a couple of - sorry, a short adjournment for a couple of minutes, sir, I may be able to shorten the list of witnesses down for you, sir. So if I could just have that 2 minutes, sir.
PN679
THE DEPUTY PRESIDENT: Yes. Well, certainly the Commission would very much support any decisions to confine the witness evidence to what is strictly relevant to the issues before the Commission and would certainly be willing to grant a brief adjournment for that purpose and, Mr Borlase, I would just seek your view on that.
PN680
MR EDMONDS: Yes, sir.
PN681
MR BORLASE: We would agree with that, your Honour.
PN682
THE DEPUTY PRESIDENT: Right. The Commission will adjourn for approximately 5 minutes. We will now adjourn.
SHORT ADJOURNMENT [11.14am]
RESUMED [11.23am]
PN683
THE DEPUTY PRESIDENT: After the brief adjournment to allow Mr Edmonds to consider the witnesses that he will call. Mr Edmonds?
PN684
MR EDMONDS: Thank you, sir. Yes, sir, it is intended to only call two witnesses today, sir, so I thank you for that opportunity, sir, it has allowed me to knock off one witness, sir. To that effect, sir, we seek to call Mr Vince Auburn.
PN685
THE DEPUTY PRESIDENT: Thank you. Before calling Mr Auburn, Mr Borlase, did you have any further reflections during the adjournment?
PN686
MR BORLASE: I had many but nothing relevant to this, your Honour.
PN687
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?
PN688
PN689
MR EDMONDS: Thank you, Mr Auburn. Now, I wonder if we can have your full name and address for the record, please?---Vincent Stuart Auburn and I'm residing (address supplied).
PN690
Okay. And your current employer?---Kaefer.
PN691
And you're engaged as what?---Lagger.
PN692
Okay. If I can take you to the issue of proposed certified agreement. I wonder if you can advise the Commission if you have received a copy of the certified agreement on or about 13 May 2004?---No, I received no agreement.
PN693
All right. Well, I wonder if you can explain the circumstances?---The - the issue on the day, we were in the smoko room. The agreements were brought in, placed on the table, there were several short. There was no individual agreements either. On other agreements that I have had and signed basically I've had my name at the top of it and had to sign the back of it and there was - and regarding the one in the lunch room, if you understood the lunch room you would be very surprised if anyone went in there at all, your Honour.
PN694
So if I could just understand your evidence, so did you get a copy of the enterprise agreement that day?---No. No, not at all.
PN695
Was any copy ever handed to you?---No, there was not.
PN696
Was there copies placed on the table?---There were copies placed on the table.
PN697
Were there any spare copies left on the table?---No.
**** VINCENT STUART AUBURN XN MR EDMONDS
PN698
Was there a copy - - -?---There was - they were - to my knowledge, they were a few short.
PN699
Right?---I couldn't put a number on it but definitely a few short.
PN700
How many people actually missed out on receiving copies, to your awareness?---Oh, five, six, maybe eight.
PN701
Okay. Was there a copy placed on the noticeboard in the lunch room?---I did not see on the noticeboard in the lunch room a supposedly new copy. On the lunch room pin-up board there was an old copy.
PN702
Right. When was that copy placed on there, to your knowledge?---I - the copy there just basically looked like shit, it had been there gathering coal dust and just rubbish.
PN703
Okay. Well - - -?---Yeah, that's all it looked like to me.
PN704
Well, was that copy on the noticeboard prior to 13 May 2004, to your knowledge?---In - what date was that? I've roughly been there 6 to 8 weeks, I think it is, so I couldn't give you a date, sorry, mate.
PN705
Well, was it placed there prior to the agreements being handed to the workers?---I would say the copy that was on the board, to my knowledge, was - well, I can't honestly say what it was, I knew that it was like an EBA but when I did sort of quiz on it, it was the old one and, like I say, it just looked like old ruddy paper to me, it had been there a while.
PN706
Okay. Well, to the best of your knowledge, was that copy placed on the board, on the noticeboard, in the lunch room prior to the copies being handed out to the workers on 13 May?---Yes.
**** VINCENT STUART AUBURN XN MR EDMONDS
PN707
Okay. How long have you been employed at Kaefer for?---Must be getting close to 2 months now.
PN708
When did you start work there?---Approximately 2 months ago, 6 to 8 weeks ago.
PN709
Right?---Like I say, that's approximately so - - -
PN710
Right. So perhaps around halfway through May, would that be about right?
PN711
MR BORLASE: He is leading the witness, your Honour.
PN712
THE DEPUTY PRESIDENT: Mr Borlase?
PN713
MR BORLASE: I was just objecting to the question, he is leading evidence.
PN714
MR EDMONDS: I am just trying to establish when 8 weeks ago was, sir, for an approximate start date for this employee but if he says 8 weeks ago, sir, I will leave it at that.
PN715
THE DEPUTY PRESIDENT: Thank you.
PN716
MR EDMONDS: Are you aware of a proposed ballot being held over the EBA on or about 31 May?---Yes.
PN717
Okay. Was a ballot actually conducted that day?---On 31 May, was that the day that - that Ross come down, was it, or is that the day for us, sorry, I'm not 100 per cent on the date, sorry.
**** VINCENT STUART AUBURN XN MR EDMONDS
PN718
Well, it was around the end of May - - -
PN719
MR BORLASE: No, leading.
PN720
THE DEPUTY PRESIDENT: Yes. I would ask, Mr Edmonds, if you would - - -
PN721
MR EDMONDS: Sir, if I could just say - I just haven't finished my question yet, sir.
PN722
THE DEPUTY PRESIDENT: Yes. Please continue.
PN723
MR EDMONDS: I was about to say, sir, at the end of May, which is 31 May, I don't think is leading the witness to point out 31 May as the end of May. I think that is commonly accepted between the parties.
PN724
THE DEPUTY PRESIDENT: Please continue.
PN725
MR EDMONDS: At the end of May was there a ballot held over the certified agreement?---The ballot - the ballot that I know of was the one that we all rejected to start with. That is the first one.
PN726
Okay?---Right, that is when we seek to have the AMWUs assistance.
PN727
All right. Was there actually a ballot held on that day though? Were ballot papers handed out to the parties - to the workers on that day?---No.
PN728
Okay. Did Mr Chamberlain say anything to the workers on that day about a certified agreement?---I'm a - I'm a bit confused, as in the day that I had off that they pushed the ballot through - - -
**** VINCENT STUART AUBURN XN MR EDMONDS
PN729
No, no, we're talking about 31 May?---Oh, right. So - - -
PN730
Was anything said by Mr Chamberlain on that day about the certified agreement?---No, because we had all voted against it.
PN731
Okay. Now, if I could take you to the day the vote occurred, the vote occurred on 6 July. Is that your understanding?---Yes. It is my understanding.
PN732
And were you present at work that day?---No, I was off sick.
PN733
How long had you been off sick for?---Approximately, 7 days.
PN734
Okay. Did anyone contact you in relation to a vote on the certified agreement?---No. I was - when I phoned into - which is - which you have to do, phone in to say that I wouldn't be - would not be there becuase of being sick I was told that Ross was coming down. I was told that he would be there on the Thursday, so whatever date the Thursday would have been, and I mean they've got my number to phone me for work. They - no, I wasn't - Ross come down on the Monday.
PN735
And what day was that, that the vote was taken, 6 July?---Yes.
PN736
Yes. What day was that of the week though?---It was on the Monday, I think. Monday.
PN737
So, if we could just clarify, when you rang into work that morning what did they say to you?---I asked what was going on because as we're all aware that other parties there having a bit of industrial action, spoke lightly about that and what was going on and that's when I was told Ross was coming down with the new EBA.
**** VINCENT STUART AUBURN XN MR EDMONDS
PN738
Okay?---And I had asked - personally asked him to phone me because I wanted to know the time to come in because we would have to vote on it.
PN739
Okay?---I received no phone call.
PN740
Did you get to vote on the agreement?---No, not at all.
PN741
No further questions of this witness, sir.
PN742
THE DEPUTY PRESIDENT: I would like to ask, Mr Auburn, did you ever see a copy of the proposed agreement?---Placed on the table, yes, your Honour. I never read one, no.
PN743
Were you aware that it was the agreement that you would be expected to have an opportunity to vote on?---The understanding that I had - we had the two union reps there and like it had been in discussion and obviously the first one, then we had that vote and voted against it, and basically I - I had left it to get correspondence back on the two gentlemen that were going to read it, but there was copies there, there was minimal copies there anyway, your Worship.
PN744
So, do I take it from that, that you had not read it?---No. I didn't have one to read.
PN745
Thank you.
PN746
**** VINCENT STUART AUBURN XXN MR BORLASE
PN747
MR BORLASE: Thank you.
PN748
Mr Auburn, you have given evidence that you didn't actually get a copy. That is correct, isn't it?---Yes.
PN749
But your evidence is that there were copies put on the table that you had access to. Is that your evidence?---Yeah. It's a pretty slapdash set-up, mate, yeah, that's it, that's it.
PN750
No. No. You - - -?---They were just dumped there, buddy, they were dumped there and there wasn't enough to go around, mate.
PN751
So you had access. There were other people, on your evidence, that you could have - - -?---Well, no, I was sitting down - I was sitting down - - -
PN752
Can I complete the question, please?---I was - - -
PN753
That you had access, that you could have had a look at with somebody else had you wanted to?---Not really at that time. I was sitting down and they were basically dumped on the table and with the numerous blokes standing there, which were showing interest and all that, I think I was having a cup of coffee at that - at that stage. We're in a little - we're in a little donga, if you could understand that, smoko hut which was trying to contain like 20-odd blokes. There's also an office in there, it's - - -
PN754
Okay. Do you recall a meeting that took place with Mr Chamberlain where he handed the agreements out?---I - I - no, I can't actually, sorry.
PN755
You don't recall it?---I recall discussions where - basically, we're a new crew, we had met Ross and everything's sort of guns and roses and it was up - up for discussion, but as I've said I never got one. I never got one at all.
**** VINCENT STUART AUBURN XXN MR BORLASE
PN756
Okay. But you saw them being put down. There was copies available that you could have seen of somebody else's - - -?---No, there wasn't enough copies there. As I said, I was sitting down and - - -
PN757
But you could have looked at somebody else's, that's correct, isn't it?---Not really, I was at work, mate.
PN758
No, you were in the process of a meeting of employees conducted by the company that these agreements were handed out, isn't it?---And there wasn't enough to hand round, right.
PN759
No. The meeting was conducted by the company, wasn't it?---Yes.
PN760
Yes. And the document was given to the employees and - - -?---They were never given, they were just dumped there, mate. They were never given, blokes were standing there, they grabbed for them, had a quick flick and a quick read. I come in on night shift. I start at 4 o'clock, mate, and that's basically how it is, you come in and: What's going on, you get a bit of a rough introduction to what's going on. It's pretty slapdash, mate, it's not - - -
PN761
Hang on, that's nothing to do with what we're talking about. The issue is, is that you were present at a meeting where there were documents put down, in your evidence, put down on the table, that you could have looked at, that other people had that you could have had a look at as well. That's correct, isn't it?---Yes.
PN762
Thank you. Now, you know that there was a copy of an agreement up on the noticeboard. That's correct, isn't it?---Don't know what one but it was an old copy of an old agreement, that's how it looked.
PN763
But you don't know what agreement it was, do you?---I'm pretty - 100 - I'm 98 per cent sure it wasn't the new one, my friend, yeah.
**** VINCENT STUART AUBURN XXN MR BORLASE
PN764
How do you determine between 98 per cent, 50 per cent - - -?---Because it had just been hanging there for ages, mate, and I mean we work in a place where there's coal dust and if people touch something you've got coal dust on your hand and it was a pretty flogged out piece of paper, mate.
PN765
Okay. So things - - -?---It wasn't shiny and new.
PN766
Okay. And that document was up there for the entire period of time?---Might even still be there.
PN767
Okay. So you don't know whether that was the new agreement, do you because - - -?---I would - like I said, I don't believe it was a new agreement because it had been there since I had started.
PN768
No, please answer the question, you don't know - - -?---Yes, I do know. I will take - I'm telling you now it would have been the old agreement.
PN769
Okay. But before you didn't know, okay?---Right.
PN770
Now, you're a casual employee, aren't you?---Yes.
PN771
Yes. Have you been back to work since you were sick?---Off and on. We've got days on and days off because of the industrial trouble that is there, yeah. I worked 4 days last week.
PN772
Okay. So sometimes you have work and sometimes you haven't worked, okay. And you were also told that Mr Chamberlain would be down at a point when you were off sick. That's correct as well, isn't it?---I was told he would be down - from the other boss, he would be down on Thursday to discuss the EBA with us.
**** VINCENT STUART AUBURN XXN MR BORLASE
PN773
Right. Okay. And you were saying before the vote that was taken - and you're saying that you've never voted on an agreement. Is that correct?---The only thing I voted on is when we voted as a party for the union to represent us and I never got to vote on the agreement that Mr Chamberlain brought up.
PN774
Okay. Right. No further questions, your Honour.
PN775
THE DEPUTY PRESIDENT: Thank you.
PN776
I would like - - -
PN777
MR EDMONDS: Nothing further.
PN778
THE DEPUTY PRESIDENT: - - - to ask a question, Mr Auburn. Did I hear you correctly to say that you could have looked at someone else's copy?---Yeah. I suppose, in a relevant way, your Honour, I could have. To try and put a bit of light on it from my point of view as a worker, it's 4 o'clock you start. You get there and you're waiting your mission whether - who tells you there is a meeting or whatever, you know, and half the blokes are waiting to go, so you've got one crew on waiting to go, then you've got us starting. Well, I mean, knock off's knock off, so if you have to grab a piece of paper and bolt that was basically, you know, the issue that I saw.
PN779
So is that the reason that you didn't look at it or you didn't - - -?---There just wasn't one there to look at. The boys had, you know, took the money and run so to speak. They grabbed what they had to and basically that's it. I had got there, got my hat and glasses and was preparing myself, you know, sat down, had a quick cup of coffee and - - -
PN780
Thank you.
**** VINCENT STUART AUBURN XXN MR BORLASE
PN781
Mr Edmonds?
PN782
MR EDMONDS: I have no further questions for this witness, sir.
PN783
PN784
PN785
MR EDMONDS: Thank you, Mr Paull. If we could have your full name and address for the purpose of the record, please?---Yeah. Shane Eric Paull (address supplied).
PN786
Just move forward a little bit. Can I have your current employer?---Kaefer.
PN787
Right. And your current occupation?---Sheet metal worker.
PN788
And where are you currently based?---In Muja.
PN789
Okay. And how long have you worked there for?---12 months on and off, casual basis.
PN790
Okay?---Probably over 12 months, sorry.
PN791
Over 12 months?---Yes.
PN792
Okay. Can I take you to the date of 13 May 2004. Were there copies of proposed enterprise agreement handed out to the workers on that day?---That was the first EBA agreement, wasn't it. Yeah, I assume so.
PN793
Was a copy of the proposed enterprise agreement handed to you on that day?---No, there wasn't.
PN794
Did you receive a copy of the proposed enterprise agreement?---No, I didn't.
PN795
Have you had an opportunity to see a copy of the proposed enterprise agreement?---Yes.
**** SHANE ERIC PAULL XN MR EDMONDS
PN796
Where did you see that?---Just sitting amongst the smoko table with newspapers and magazines and so on.
PN797
Right. And was there a copy on the table amongst the newspapers and the magazines?---Was there - sorry, can you repeat the question?
PN798
And was there a copy of the proposed enterprise agreement on the table amongst the newspapers and the magazines?---This is the one on 13 May, is it, yes, there was.
PN799
Right. Okay. And you have had an opportunity to read that, have you?---Yes.
PN800
Okay. Was there any sort of a ballot held on 31 May around that proposed certified agreement?---Yes.
PN801
Okay. And What was the result of that ballot to your understanding?---We disagreed with it.
PN802
Okay. And did you vote on the certified agreement on that day?---Is that in the ballot, is it?
PN803
On 31 May?---No, I didn't.
PN804
Okay. Was there any discussions held with Mr Chamberlain on that day about the proposed certified agreement? If you can't recall you can say you can't recall?---I can't recall, sorry.
PN805
Well, if I can take you to 6 July. There was a vote held in relation to the EBA on 6 July, is that correct?---Yeah, I think so.
**** SHANE ERIC PAULL XN MR EDMONDS
PN806
And were you present for that vote?---No, I wasn't.
PN807
Can you advise the Commission why you weren't present for that vote?---Because of a small shutdown in Kalgoorlie.
PN808
Right, okay. And did you go to work on that shutdown in Kalgoorlie?---Yes, I did.
PN809
Okay. When did you leave to work on that shutdown?---Oh, I can't recall the dates at the moment.
PN810
Okay. All right. Were you present at the Muja Power Station on 6 July?---No.
PN811
Were you working in Kalgoorlie on that day?---Yes.
PN812
Did anyone tell you that you were to be permanently based in Kalgoorlie?---No.
PN813
Did anyone tell you that you were to be moved on to Port Hedland?---No.
PN814
Had you been told you were coming back to Muja Power Station?---Yes. That's what I assumed, yes.
PN815
And how long did you work at Kalgoorlie for?---I think twelve days.
PN816
Okay. And what happened after those twelve days? Did you go straight back to Muja Power Station after that?---I'd asked for one week off and - yeah, just one week off and then back to Muja the following Monday.
**** SHANE ERIC PAULL XN MR EDMONDS
PN817
Okay. Who did you ask for that week off from?---Who was it? The supervisors. We - we'd agreed for them arrangements, sort of prior to finishing the shutdown in Kalgoorlie.
PN818
Okay, all right. Was it ever put to you that you weren't coming back to Muja Power Station?---No.
PN819
Okay. Did you - so did anyone contact you in relation to the ballot for the certified agreement?---No.
PN820
Okay. Did you ever get an opportunity to vote in relation to the certified agreement?---No.
PN821
I have no further questions for this witness, sir.
PN822
THE DEPUTY PRESIDENT: Thank you. Mr Borlase?
PN823
PN824
MR BORLASE: Now Mr Paul, sorry, is it "Paul" or "O'Paul"?---Paull, P-a-u-l-l.
PN825
Paull. Sorry about that. Mr Paull, you work for Kaefer on a casual basis?---That's correct.
PN826
That's correct. You work for other employers in between times when you are not working for Kaefer?---I have been.
**** SHANE ERIC PAULL XXN MR BORLASE
PN827
So each separate appointment is a separate period of contract with you?---Yes, that's right, yes.
PN828
And you confirm that you did go to Kalgoorlie. That is correct, isn't it?---Yeah, that's correct.
PN829
Yes. But you were not told that you would be returning to Muja at the end of that period, were you?---Yes, I was.
PN830
You just assumed?---Yes, because it was only a temporary sort of thing to be flown up to Kalgoorlie because of - oh, labour, man labour and then after that, yeah, back to Muja.
PN831
But you weren't told that that is what was happening, were you? You said in your evidence-in-chief that you just assumed that to be the case?---Yes.
PN832
Yes. So you didn't know that you would be coming back to Kalgoorlie - to Muja, did you?---Yeah, I - well, sort of 80 per cent I knew. It was either go back to - I mean, Muja or be unemployed, one of the two, so that's what I was hoping.
PN833
Okay. So that is what you were hoping?---Yes. Yes.
PN834
Okay. And so as a consequence you were in Kalgoorlie on the day of the vote?---Yes.
PN835
That is right. And you didn't vote. Now there was another sheet metal worker, you are a sheet metal worker, aren't you?---That's correct.
**** SHANE ERIC PAULL XXN MR BORLASE
PN836
Yes. And there was another sheet metal worker employed at the time by the company. Are you aware of that?---Yes. That's correct.
PN837
That was a Mr Popp, was it not?---Yes. That's right.
PN838
Yes. And he unfortunately passed away, did he not?---That's correct.
PN839
Around - shortly after the vote period?---Yes, that's correct, yes.
PN840
Yes, okay. Thank you. No further questions, your Honour.
PN841
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?
PN842
MR EDMONDS: Sir, if the Commission has got some questions, sir, I've only got one issue to clarify, sir.
PN843
THE DEPUTY PRESIDENT: The Commission has no questions of Mr Paull.
PN844
PN845
MR EDMONDS: Mr Paull, I wonder if we could just clarify, was it your understanding when you went to Kalgoorlie that you would be returning to the Muja Power Station?---Yeah, I like I spoke before, a good 80 per cent of me was yes. Because there's - because of the workload.
PN846
Okay?---The upcoming workload there.
**** SHANE ERIC PAULL RXN MR EDMONDS
PN847
Had anyone ever said to you that you wouldn't be returning to the Muja Power Station?---No, not - not. And I told them so that I wouldn't go anywhere else.
PN848
Had you ever worked away from the Muja Power Station before?---No.
PN849
I've got no further questions for this witness, sir.
PN850
PN851
MR EDMONDS: That completes our evidence, sir, and I might save any final submissions until such time as Mr Borlase has called any evidence, if any, sir.
PN852
THE DEPUTY PRESIDENT: Thank you. Mr Borlase?
PN853
PN854
MR BORLASE: Mr Chamberlain, for the record, could you please state your full name and address?---Ross Chamberlain, (address supplied)
PN855
And could you tell the Commission who your employer is?---Kaefer Integrated Services.
PN856
And what is your role in that organisation?---Operations Manager for Western Australia.
PN857
Can I ask you to have a look at a document? Mr Chamberlain, do you recognise that document?---Yes, I do.
PN858
Can I ask you to have a look through it and tell me what that document is?---It's a statutory declaration that I've made to set out some of the facts in this case.
PN859
And do you swear that the contents of that document are still true?---Yes, I do.
PN860
Your Honour, I would like to tender that document as an exhibit?
PN861
PN862
MR BORLASE: Thank you, your Honour.
**** ROSS CHAMBERLAIN XN MR BORLASE
PN863
Mr Chamberlain, can I take you to point 4.1 of the document? It indicates there that you met with employees and provided them with copies of an agreement. Can you tell me why you did that?---This was the first attempt to - to offer an increase in their wages. The previous EBA had expired.
PN864
Okay. And did you have sufficient copies for everybody at that particular point in time?---I didn't at that point in time.
PN865
Okay. And what occurred after you presented the document to the employees?---Some days lapsed and I received when I visited site on 27 April a signed copy, which was the back page of the EBA offer, where the permanent and some casual employees at the time had accepted that offer.
PN866
Okay. And subsequently what did you do?---I contacted the Chamber of Commerce and spoke with yourself as to how I would progress this what I thought was an accepted EBA forward for registration.
PN867
Okay. And what occurred then?---I was informed that there was a due process and I hadn't followed that, of submitting the EBA, a copy to every person including persons not at work on the day as well the covering letter which outlined that each employee had the opportunity or the right to involve a workers' group, I think it's called or a union, if they so desired.
PN868
Okay. And then subsequent to that what did you do once you had received that advice?---I re-presented it to the employees on - - -
PN869
Okay. And how did you do that?---We - I went to site, the day prior I informed the supervisors on site that I was coming and that all the employees would need to be in attendance. I had everybody gathered in the workshop and I had copies for everybody. I gave everybody a copy including the covering letter and we discussed it for about an hour and a half.
**** ROSS CHAMBERLAIN XN MR BORLASE
PN870
Okay. Now you are saying that meeting took place in the workshop?---That's correct.
PN871
Okay. And did you just throw the copies down on the table or did you hand copies to the employees?---I walked around and handed a copy to every individual.
PN872
Okay. Approximately how many employees do you recall being there?---16 or 17.
PN873
Okay. And was there any employees that you were aware were not at that meeting?---Yes, there were two guys, two employees on night shift. There were also some labour hire guys who this wouldn't apply to so I gave copies to the supervisor who would be handing over to those guys on night shift to pass on to them as well as about half a dozen copies that were spare.
PN874
Okay. Now when you say, copies to pass on to them, do you mean copies passed on to the two employees or to the labour hire employees?---No, no, to the two employees who weren't present at the meeting in the morning and that they could - who were coming in on night shift, so they would get a copy.
PN875
Okay. And are you aware or are you satisfied in your mind that the supervisor passed those on?---He's confirmed that since.
PN876
Now what did you do with the spare copies that you indicated you had?---He - I gave them to the supervisor as well. And he was instructed to put them in the crib room, which he also confirms he's done.
PN877
Okay.
**** ROSS CHAMBERLAIN XN MR BORLASE
PN878
MR EDMONDS: Sir, if I could just point to the Commission, sir. That is actually hearsay evidence, the supervisor is available to give that evidence and he should be called. Otherwise I don't think it can be led, sir, but as I said in the past, sir, hearsay evidence is not prohibited, it is just a question of weight that gets attributed to that, sir.
PN879
THE DEPUTY PRESIDENT: Thank you. Mr Borlase?
PN880
MR BORLASE: Thank you. Is it possible that those spare - that calls for speculation, I won't go there. Now I take you to paragraph 4.4. Can you confirm to the Commission what your intention was at that particular point in time on 31 May?
PN881
MR EDMONDS: Sir - - -
PN882
THE DEPUTY PRESIDENT: Mr Edmonds?
PN883
MR EDMONDS: Either the stat dec gets put in, sir, and it stands on its own, sir. I mean, it can't be used as a memory aid to adduce further evidence from the witness. If he wants to put his stat dec in, sir, that is fine but he can't then use it to prompt himself as to his further evidence, sir. If he is going to give further evidence in addition to the stat dec, sir, then he should put the stat dec to one side and give that evidence, sir, it is not appropriate for the stat dec to be used as a prompt for the witness to give further evidence.
PN884
THE DEPUTY PRESIDENT: Mr Borlase?
PN885
MR BORLASE: Your Honour, I will simply address questions. I will let the statutory declaration speak for itself and I will simply address the questions to Mr Chamberlain which do not go to issues raised in the statutory declaration.
**** ROSS CHAMBERLAIN XN MR BORLASE
PN886
THE DEPUTY PRESIDENT: Mr Borlase, the Commission, of course, has not had time to read this document so if you wished to make any comments to me to help me to understand it that would be helpful. However, that is a different question from asking the witness.
PN887
MR BORLASE: Yes. I will save those for submissions, your Honour, if you like.
PN888
THE DEPUTY PRESIDENT: All right, thank you.
PN889
MR EDMONDS: Sir, maybe it would be useful to have just a short 5 minute adjournment, sir, just to read the content of the stat dec. I mean, I know it would be useful for myself, sir, I'm not sure about the Commission.
PN890
THE DEPUTY PRESIDENT: Mr Borlase?
PN891
MR BORLASE: Your Honour, it would probably be more appropriate if I finish the evidence from Mr Chamberlain. There are matters which arose from the evidence of Mr Paull which are not addressed in the statutory declaration which need to be addressed, I believe. There are just a few other questions, the statutory declaration isn't comprehensive. I take Mr Edmonds' point about it not being used as an aide memoire and I'm quite happy for your associate to take that copy from the presence of Mr Chamberlain and simply address a couple of other questions which need to be dealt with.
PN892
THE DEPUTY PRESIDENT: I don't consider that necessary for it to be removed. However, perhaps what might be appropriate, as an alternative to adjournment, I will just ask you if you would be seated and give the Commission and Mr Edmonds just a couple of minutes in silence in Court to read the document quickly.
**** ROSS CHAMBERLAIN XN MR BORLASE
PN893
Mr Edmonds, have you had the opportunity to peruse it?
PN894
MR EDMONDS: Sir, I've had an opportunity to peruse some of it, sir. I wonder if at the end of - sorry, sir, I will stand when I'm speaking to you, I apologise, sir. I wonder if at the end the evidence of Mr Chamberlain whether it may be possible to have a short 5 minute adjournment just to prepare some questions in response to the statutory declaration because it is quite a lengthy document, sir.
PN895
THE DEPUTY PRESIDENT: Mr Borlase?
PN896
MR BORLASE: Yes, your Honour.
PN897
THE DEPUTY PRESIDENT: Yes, that is agreed.
PN898
MR EDMONDS: Thank you, sir.
PN899
THE DEPUTY PRESIDENT: Please continue.
PN900
MR BORLASE: Mr Chamberlain, do you know if you have an employee or a causal employee at Kaefer called Mr Shane Paull?---Yes. We do, yes.
PN901
Now are aware as to whether or not he was sent to work at Kalgoorlie?---Yes, he was.
PN902
Okay. And what was the intention of the company once he had finished that work at Kalgoorlie?---We were hoping to send, planning to send him to Port Hedland to work.
**** ROSS CHAMBERLAIN XN MR BORLASE
PN903
Okay. Had he been told that?---No, he hadn't at that time.
PN904
Okay. Had he been intended to be brought back to work at Muja?---No.
PN905
And why was that?---Well, the union - the employees of United KG had introduced some black bans which effectively reduced our scope of work considerably and we were looking at reduced numbers of people there, but particularly we had work in Port Hedland and that's where we wanted to invite Mr Paull to attend.
PN906
Okay. And did you have any sheet metal work available at all?---We - we had sheet metal work at Muja, but we had a sheet metal worker there.
PN907
Okay. And so was it the intent to use that person to do that work, was it?---That's correct.
PN908
Okay. No further questions, your Honour.
PN909
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?
PN910
MR EDMONDS: Sir, if I could just have a brief adjournment, sir, to go through the statutory declaration and prepare a cross-examination, sir?
PN911
THE DEPUTY PRESIDENT: About 5 minutes?
PN912
MR EDMONDS: Perhaps if I could ask for 10 minutes, sir, and I will endeavour to keep it strictly to that 10 minutes, sir.
PN913
THE DEPUTY PRESIDENT: 10 minutes. Mr Borlase?
**** ROSS CHAMBERLAIN XN MR BORLASE
PN914
MR BORLASE: Yes, your Honour.
PN915
THE DEPUTY PRESIDENT: The Commission will adjourn for approximately 10 minutes.
SHORT ADJOURNMENT [12.03pm]
RESUMED [12.17pm]
PN916
THE DEPUTY PRESIDENT: Mr Borlase?
PN917
MR BORLASE: Thank you, your Honour. I have had a brief discussion with Mr Edmonds and there is just a couple of more questions that I was going to address to Mr Chamberlain which Mr Edmonds has indicated he doesn't have a difficulty with.
PN918
Mr Chamberlain, are you aware of a person by the name of Mr Auburn?---Yes, I am.
PN919
Are you whether he was employed at the time of the vote?---Yes, he was.
PN920
Was he a casual employee?---Yes, he was, yep.
PN921
So, was he at work on the day of the vote?---No, he had been off for some time so he wasn't - - -
PN922
So, he wasn't employed at the time?---No, the - - -
**** ROSS CHAMBERLAIN XN MR BORLASE
PN923
MR EDMONDS: Objection. Leading. He has already asked this question and Mr Chamberlain said, yes, he was employed.
PN924
THE DEPUTY PRESIDENT: Mr Borlase?
PN925
MR BORLASE: Mr Chamberlain, Mr Auburn, you have indicated was a casual employee?---That is correct.
PN926
And was he at work on the day of the vote?---No, he wasn't.
PN927
No. Do you know why he was not at work on the day of the vote?---Yes. The supervisor told me he had been off for some time with high blood pressure and wasn't necessarily expected to return for some time. Or be available, sorry, rather than return.
PN928
Okay. Did you visit Mr Auburn on the day the vote to see if he wished to cast a vote?---No, I didn't.
PN929
And can you tell the Commission why not?---Given his - the report state of his health, he wasn't expected to return to work for us.
PN930
Okay. Thank you. No further questions, your Honour.
PN931
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?
PN932
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN933
MR EDMONDS: Now, Mr Chamberlain, is it true that in April 2004 you put a proposed agreement to the workforce? Is that the case?---That is correct.
PN934
But you failed to comply with the requirements under the Act at that time?---That is correct.
PN935
So, is it also true that on 14 May of 2004 you met with employees in the workshop and handed a copy of the proposed agreement to them and a copy of the notice that is prescribed by the Act? Is that correct?---That is correct.
PN936
Okay. How many people did you hand that out to on the day?---I believe it was 16 or 17.
PN937
How many employees did you have at that time?---16 or 17.
PN938
All right. So, you handed it to 16 or 17 people?---Yep.
PN939
And you had 16 or 17 employees?---That is correct.
PN940
So, they were all present at that time. Is that correct?---To my knowledge, yes.
PN941
So, what about the two employees on shift work?---Well, I said yes to them in that - okay, personally I handed it to 14 or 15, that is true. And the two who were on night shift, I passed their copies on to the supervisor.
PN942
Okay. But you don't know if he has handed that - - - ?---I have his assurance. I have no reason to believe otherwise.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN943
All right. But you don't know for sure that he has necessarily handed it to those workers on night shift, though, do you?---I guess the best way to answer that is that they were in attendance when we took the vote and they certainly would have made it clear to me they didn't know what they were voting on.
PN944
Okay. How many of those employees of the 167 or 17 are permanent employees?---About four.
PN945
And how many were casual? The balance were casual?---Yes, yeah.
PN946
And you are confident that the balance of those casual employees were all working on the day you handed the agreement out?---If they were there, they were working.
PN947
Yes?---Yes.
PN948
Okay. But of all of the rest of the casual employees you have got on the books, they were all present?---Yes, yes. We didn't have any other casuals who we would call in that we intended to call in or - - -
PN949
Okay. Now, you said in your statutory declaration:
PN950
There were approximately six spare copies of the notice and the agreement and I arranged for those to be left in the employees amenities so they would be available for any new employees who may be employed after the meeting.
PN951
Is that correct?---That is correct.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN952
How many new employees were employed after the meeting?---I couldn't put an exact figure on it but I would say something like five or six.
PN953
Okay. Well, you say in your statutory declaration:
PN954
There were five employees who were employed after 14 May and before 31 May.
PN955
Is that correct?---That is right.
PN956
And you say you believe they had reasonable access to those spares copies as they had been left in a prominent place in the staff amenities?---I believe so.
PN957
Okay. So, they weren't handed copies individually, were they?---Not personally.
PN958
Do you know if they had an opportunity to read any agreements that were left in the staff amenities?---I believe so.
PN959
Okay. Well, the evidence we have heard today was, there was not enough copies in the staff amenities and that none were available. What do you say to that?---I think that we might be confusing it with the first issue when I incorrectly presented the EBA and I didn't have enough copies. But I also didn't have the covering letter which - - -
PN960
Well, the evidence was clear that when you handed them out on 14 May there were not enough copies available?---I absolutely dispute that.
PN961
Okay. Now, you have said in your statutory declaration here:
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN962
There were approximately six spare copies of the notice and the agreement and I arranged for those to be left in the employees amenities so they would be available for any new employees who may be employed after the meeting.
PN963
You also say:
PN964
There was always a copy on the notice board.
PN965
What do you mean by always a copy?---The supervisor had been instructed to put - post a copy on the notice board in the event that one of the guys lost his or left it at home. So, he would have a copy at work if there was a discussion, which there always was.
PN966
When was that copy put on the notice board?---Well, I can't tell you exactly. I was - I instructed the supervisor to put it on the notice board tha same day.
PN967
Was it on 14 May?---I believe so.
PN968
Because we have heard evidence that it was before 14 May. What do you say to that?---There may be - may have been a copy of the previous incorrect version that I presented. Is that the word? Posted - I believe, in fact, there would have been a copy of that EBA offer posted on the board.
PN969
Okay. All right. So, when you talk about a copy being left on the notice board, what you mean is there was a copy of the old, incorrect agreement left on the notice board?---No, the updated one. The supervisor was instructed to put - post a new one on the board. I must admit, I didn't tell him to take the old one off. But I believe - have every reason to believe the new one would be up there, because that is what the discussion was about with - - -
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN970
Well, do you know for sure that he did put the new one up there?---I have his assurance that he did.
PN971
Do you know for sure that he did put the new one up there?---I have no reason to believe that he didn't. But I didn't watch him put it up there.
PN972
So, the answer to that question is, no, you don't know for sure that he did put the new copy up there?---No, that is correct.
PN973
Is it possible that he saw the old copy up there and thought, there is already a copy of the agreement up there. I don't - - - ?---No.
PN974
MR BORLASE: It calls for speculation, your Honour.
PN975
THE DEPUTY PRESIDENT: Mr Borlase?
PN976
MR BORLASE: The objection is the question is asking the witness to speculate.
PN977
THE DEPUTY PRESIDENT: Speculation, Mr Edmonds?
PN978
MR EDMONDS: Well, yes, sir. But certainly the Commission is not bound by the strict rules of evidence. I am postulating a version of events which is substantiated by the evidence that has been put in front of you today, sir, and if I can have an opportunity to pursue this line of questioning, sir, I will get to that issue shortly.
PN979
THE DEPUTY PRESIDENT: Well, the Commission is concerned to know the truth of the matter.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN980
MR EDMONDS: Yes, sir.
PN981
THE DEPUTY PRESIDENT: And would wish the proceedings to continue on the basis that the full facts and all relevant evidence will come out. Please continue.
PN982
MR EDMONDS: Thank you, sir.
PN983
Is it possible that the supervisor didn't replace the old copies? Is it possible that he saw the old copy up there and thought, well, there is already a copy. I won't pin a new one up?---It is possible. It is very unlikely.
PN984
Okay. Now, the evidence from Mr Auburn was that the copy that was on the notice board had been there for some time. It was and old, dirty, dog eared copy. Is it possible that the supervisor didn't replace the certified agreement on the notice board and, indeed, it was just an old copy of the certified agreement?---I think you just asked me that question, didn't you?
PN985
So, it is possible then?---It is possible. I would add that everything gets dusty and dirty in that place within a day.
PN986
And that would be consistent with Mr Auburn's evidence, that version of events?---I am not sure you could draw that conclusion.
PN987
Okay. Now, you say that the vote was intended to be conducted on 31 May. Is that correct?---That is correct.
PN988
But it didn't proceed?---That is correct.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN989
And why didn't it proceed?---The employees indicated that they wanted to take up that option that the covering explains to involve the union in the agreement.
PN990
Okay. Do you recall the workers taking some industrial action following the presentation of that offer to the workers?---No, I don't.
PN991
You don't recall them taking some industrial action around 25 June?---I believe - yes, I thought you were leading me to within the next day or two following that.
PN992
No. Around 25 June?---Yeah, I believe so.
PN993
And was there a section 127 application heard on that day in front Deputy President McCarthy?---Yes.
PN994
Did you say in your evidence-in-chief on that day that one of the reasons for them taking the strike action or the first one was that:
PN995
An EBA officer that we had presented to the employees, it had been rejected, had been officially rejected.
PN996
Did you say that in your evidence on the day?---I believe so. I would like the opportunity to clarify that if - - -
PN997
Certainly. Can you clarify what you meant by the agreement was rejected, had been officially rejected by the workers?---Yeah. They had indicated to me that they didn't want to pursue with - a small group of them had indicated that they had met previously, the day before in fact, with a United KG shop steward and they wanted to move forward involving the union rather than an LK agreement. And in that sense, I didn't proceed with the voting.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN998
Okay. So, was it clear to you on that day that it had been rejected though?---By some.
PN999
Did you also say in evidence on that day that what you do know is that they had contacted the union. They wanted to have the union involved. And what they expressed to me was that they didn't feel qualified to make a proper appraisal of the details in the offer. None of them felt qualified. They felt they would rather have the union involved?---That is correct.
PN1000
Was that a view held by the majority of the workforce?---As we said before - as Mr Borlase said, with a secret ballot, we don't know who voted - votes which way. But I don't believe - - -
PN1001
Well, there was no secret ballot prior to that day, was there?---No, no. I mean, at that point in time I don't know - didn't know the numbers, who was in favour and who wasn't.
PN1002
So, did you proceed with the ballot on the 31st?---No.
PN1003
Well, if you felt it was only a small group of employees who had opposed the offer, why didn't you just proceed with the ballot on that day?---The employees - Mr Buckley told me that the men had met together the day before with the United KG shop steward and they wanted to discuss things with the union. And my understanding of the covering letter was that they had that right. So, I didn't proceed at that time.
PN1004
Okay. All right. Now, if we can turn the issue of employees being absent during the vote. You say that one employee was absent during the vote. He was ill. I visited him at his home on that day with two employees from the workshop and he cast a vote in the presence of myself and two other employees. Who as that?---Mr Paul Jones.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN1005
Paul Jones. Is he a casual employee?---Yes.
PN1006
Was he working on that particular day?---No.
PN1007
Did you go and visit Mr Vince Auburn at his home?---No, I didn't.
PN1008
Why was that?---Well, given the length of his absence and the reported condition of his health, he wasn't expected to return to work for us.
PN1009
And how long had he been at home?---I wasn't sure until he gave evidence this morning of 7 days.
PN1010
Had he been absent for 7 days before the vote was taken?---I believe.
PN1011
Well, is it true that he rang that morning to say he was going to be sick that day?---I don't know the answer to that.
PN1012
Well, is it possible that he rang that morning and - - - ?---It is possible, yeah.
PN1013
Well, if he was no longer employed, why would he need to ring in to advise he was sick?---He was - should have been - well, he gave evidence in his submission this morning that - - -
PN1014
I am not worried about what his evidence was. I am worried about what your evidence is. Why would he need to ring in in the morning to say he was going to be sick if he was no longer employed?---Well - and he was absent for 7 days previously. I don't know the answer to that either.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN1015
Okay. Do you have a policy that after someone is absent for 7 days they are no longer employed?---No. A casual employee can be put off within - and given an hour's notice, I believe.
PN1016
Had you given an hour's notice that he was no longer going to be employed?---No.
PN1017
So, he was an employee still then, wasn't he?---Well, a casual employee, we call them in when they are required.
PN1018
Okay. But you went to visit Mr Jones at home. He was a casual employee. To get his vote?---Yeah. He was at work the previous day.
PN1019
So, that was the test for having a vote, was it? If you were at work the previous day, then you were going to be entitled to vote on the day of the ballot?---No, I guess - I would also clarify that by saying Mr Paul Jones has been a casual employee on and off for many, many months with us whereas Mr Auburn was a recent employee.
PN1020
You have just said that you can terminate casual employees on an hour's notice. Had you given notice to Mr Auburn that he was terminated?---No.
PN1021
Okay. So, is it reasonable to presume, then, that he was still an employee?---It is a presumption that valid.
PN1022
Did he return to work after his period of sickness?---I don't know.
PN1023
Do you know if he is working there now?---I don't know. What I - I know that our supervisor, in fact, tried to contact him all weekend.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN1024
Would you be surprised if he was working at Kaefer now?---Yes.
PN1025
You would be surprised?---Yes, I would.
PN1026
You don't think he is an employee of yours at the moment?---I don't believe.
PN1027
I am sure that is news to him too. Now, if we could turn to the issue of Mr Shane Paull. You said he was sent to Kalgoorlie for a period of 2 weeks. Is that correct?---That is correct.
PN1028
And he wasn't to return from Kalgoorlie?---To Muja?
PN1029
Yes?---My plan wasn't to have him return to Muja, no.
PN1030
Had that ever been put to him?---Not at this point.
PN1031
Well, we have heard evidence from him today that he had a discussion with one of his supervisors in Kalgoorlie and from that supervisor he asked for a week off prior to returning to Muja. Would that surprise you?---No.
PN1032
So, he was due to return to Muja then, was he?---No. We planned to take him to Port Hedland until they had their accident up there.
PN1033
Okay. Did you ever raise the issue of him going to Port Hedland with him?---Knowing that he was having the week off, no.
PN1034
Okay. Did you know he was having a week off?---Yes.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN1035
So, he started work back after a week. Is that correct?---I don't know when he started back.
PN1036
Well, you have said in your evidence here:
PN1037
Due to the contracting nature of our business, an opportunity arose in the week commencing 19 July. He was offered further employment at Muja after a break of employment of several (3) weeks.
PN1038
?---Yep.
PN1039
Do you know it was 3 weeks or you are just making that up?---No, I - just now, I wasn't exactly sure when he returned. Having you read that to me, reminded me. Yes, he did start on the Monday. I wasn't sure just how many - - -
PN1040
Was that after 3 weeks or 1 week?---Well, he was in Kalgoorlie for 2 weeks and had a week off. Then we called him back to Muja.
PN1041
So, when you say a break in employment of several, you mean 3 weeks. You mean he had 2 weeks in Kalgoorlie and 1 week off?---Yes.
PN1042
And you consider that is 3 weeks break in the employment?---From Muja, yes.
PN1043
Was it ever put to him that he wouldn't have any future employment at Muja after he finished at Kalgoorlie?---No.
PN1044
It would be reasonable for him to presume that he would be returning to Muja?---We have used Mr Paull there many times. Sometimes just for a couple of days in a row, a weekend. So, yes, he could assume that.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN1045
Now, how many employees do you have that would be covered by the certified agreement?---Presently?
PN1046
Yes?---About 10.
PN1047
Okay. How many did you have the day the vote was taken?---There were 19 in attendance and two supervisors.
PN1048
And of the 19 that got to vote, 14 voted in - - - ?---Sorry, 18 in attendance. One was Mr Paull.
PN1049
Okay. So, 14 were in favour and 5 were against. Is that correct?---Yes.
PN1050
And you consider that Mr Auburn wasn't an employee at the time?---That is correct.
PN1051
So, he wasn't entitled to vote. The two employees that were in Kalgoorlie were not entitled to vote. Was there anyone on annual leave at that time?---Not to my knowledge.
PN1052
Sorry, if we could just clarify again, how many employees do you have at this point in time that we will be covered by the certified agreement?---9 or 10.
PN1053
So, you are down from the 19?---Yes.
PN1054
So, between the date for the certification and the date was taken, you have lost nearly half your workforce?---Correct.
**** ROSS CHAMBERLAIN XXN MR EDMONDS
PN1055
Or more than half your workforce. Is that correct?---That is correct, yep.
PN1056
You say you engage the service of some additional labour from time to time through a labour hire firm. Is it true that they are not employees of Kaefer?---No, they are not employees of Kaefer.
PN1057
Okay. They are not bound by the certified agreement. Is that correct?---That is correct.
PN1058
Thank you, sir. I have got no further questions of this witness, sir.
PN1059
THE DEPUTY PRESIDENT: Thank you. Mr Borlase?
PN1060
PN1061
MR BORLASE: Mr Chamberlain, in respect to the labour hire employees you just referred to, did they vote in the process?---No, they were excluded.
PN1062
Okay. You also indicated that the numbers are now down to some 9 or 10 employees from the 19 that voted. Can you tell the Commission why that is the case?---The amount of work that we have had released to us is significantly reduced because the union in United KGs employees have put a black ban on boilers 2, 3 and 4 which is the largest part of our work so - - -
PN1063
Had those black bans not been in place, would you have expected to have still had those 19 people who voted working?---Yes, we would have.
**** ROSS CHAMBERLAIN RXN MR BORLASE
PN1064
Okay. Now, you say you have got a number of people who are casual employees. Is that correct?---That is correct.
PN1065
And a casual employee, are they only employed if they are offered employment for any particular day?---Yes, we call them in. I guess to clarify that, there is probably a couple of people that have been with us longer term, even though still casual. And when they are available, they will come in, day after day. We don't have to actually phone them up each day.
PN1066
Okay. And is Mr Paul Jones one of those employees - - - ?---Yes.
PN1067
- - - that you would expect to be there regularly?---Yes, that is right.
PN1068
And is Mr Auburn in the same category as Mr Jones?---No, no.
PN1069
With respect to Mr Paull, the person who went to Kalgoorlie, did you expect him back at Muja in any short period of time?---No. The black bans were put in place the day before we had our vote. And so the - - -
PN1070
No, no. Sorry, carry on?---Yeah, so we just expected the work scope to be reduced and, therefore, it was very unlikely that he would be returning back to Muja.
PN1071
Thank you. Now, in terms of the agreement, are you certain that you had sufficient copies for everybody who was at the meeting on the day?---Absolutely, sir.
PN1072
And why are you so certain?---Well, there were excess copies, one of which I instructed the supervisor to post on the notice board. Two copies I instructed to be given to the two guys on night shift. And others - additional copies to be placed on the lunch room tables.
**** ROSS CHAMBERLAIN RXN MR BORLASE
PN1073
Okay. Now, do you believe that those instructions provided to the supervisor were complied with?---He hasn't - yes, I do. He hasn't failed me yet.
PN1074
Okay. And do you believe that a copy was put up on the notice board?---Yes, I do.
PN1075
And can you tell the Commission the physical environment. Is it a dusty area?---It is. It is a power station powered by coal and the dust, the coal dust, just creeps in everywhere. It is very difficult, even with an air conditioned lunch room that - when the door is closed, to keep the dust out. So, documents pretty readily look old and dusty.
PN1076
Okay. Do you believe the supervisor put that agreement up on the notice board?---I believe so.
PN1077
And why do you believe that?---My confidence is in Mr Canfell. He has worked for us for 19 years or something and he understood the significance of the way I had presented it wrongly in the first place. And this new adhering to the procedure, the covering letter, copies to everybody, I made it very plain to him that it was necessary to ensure that the night shift guys and any future employees had copies and access to copies.
PN1078
Okay. And so do you feel confident that second copy was put up on the board?---Yes, I do.
PN1079
And you are confident that additional copies were left in the lunch room?---Yes, I am.
PN1080
In terms of 31 May, are you confident that the agreement was not voted on at that point in time?---That is correct. We aborted the process.
**** ROSS CHAMBERLAIN RXN MR BORLASE
PN1081
And can you tell the Commission why you aborted that process?---I had Mr Buckley indicate to me that some of the employees had, after a meeting with Dave Prior, decided they wanted to involve the union in the process. And so we didn't proceed with the vote.
PN1082
Okay. And does that account for the evidence that you gave before Deputy President McCarthy?---Yes. I see now my choice of words wasn't terribly accurate. But we didn't proceed with the vote at that time. The offer was still there. We intended, and in fact I made a phone to Mr Currie the very next day, to try and get some negotiation going.
PN1083
Okay. And did that result in any change or - - -
PN1084
MR EDMONDS: Sir, this is new evidence now, sir.
PN1085
MR BORLASE: Yes, I will leave it there. It is not relevant anyway, I don't think, your Honour. That concludes my questions, your Honour.
PN1086
THE DEPUTY PRESIDENT: Thank you. Mr Chamberlain, did I hear you correctly to say that you did not visit Mr O'Byrne to, as it were, give him the opportunity to vote on the basis that you were informed that he had high blood pressure?---Yes, sir.
PN1087
And that he was not expected to return to work at all?---That's correct, sir. That was given to me by one of our supervisors who indicated that his blood pressure was quite an issue, he had already been missing for some days. I found out this morning it was seven days and it was unlikely that he would be returning.
PN1088
In relation to your instruction, as I understand it, to the supervisor, in relation to providing two copies to the employees on shift work, I understand that you have said to the Commission that you are satisfied that he did provide those two copies. Is that correct?---Yes, sir. He's assured me he did.
**** ROSS CHAMBERLAIN RXN MR BORLASE
PN1089
This is something I might raise later with Mr Borlase as to whether it may be appropriate or not or for the Commission to be given further confirmation of that. You would expect that would be possible, would you?---Most certainly.
PN1090
Yes. In relation to the spare copies of the notice and the agreement, did you inform the Commission that the copy - that there was a copy of the new agreement on the board, to your understanding?---Yes, sir.
PN1091
To your knowledge it was there all the time?---Oh, sir, the previous agreement which I incorrectly presented in April was first posted on that board and then when I followed the due process I believe that was replaced. I'm very confident that Mr Canfell would have put the new one on and taken the old one off.
PN1092
Again that is something I might raise with Mr Borlase a little later. In relation to the employees, as I understand it, two went to Kalgoorlie and one has subsequently been re-employed, I understand you have said. Is that correct?---That's correct, sir.
PN1093
And is it your evidence to the Commission that the one employee, is that Mr Paull?---Yes, sir.
PN1094
That his employment had definitely ceased and he was re-employed. Is that the case?---That's correct, sir.
PN1095
That is your evidence?---Yes, sir. We brought him back because the previous sheet metal worker on the site had actually passed away.
PN1096
PN1097
THE DEPUTY PRESIDENT: Given the time I would seek the views of the advocates as to the duration of closing submissions?
PN1098
MR EDMONDS: I wouldn't expect mine to go for longer than five minutes, sir.
PN1099
MR BORLASE: Similar, your Honour.
PN1100
THE DEPUTY PRESIDENT: In that case, we will commence with closing submissions and I would ask, Mr Borlase, when you close if you would indicate to the Commission as to whether you believe it would be either appropriate or helpful if there was perhaps subsequent to the hearing, a further statutory declaration submitted by the supervisor, Mr Canfell or not and I would seek the views of Mr Edmonds likewise on that at the appropriate time.
PN1101
MR BORLASE: I can indicate, we are prepared to provide that, your Honour.
PN1102
THE DEPUTY PRESIDENT: Mr Edmonds, your view on that?
PN1103
MR EDMONDS: Well, in relation to that issue, sir, we would say that it would not be appropriate to take a further statutory declaration in evidence following the conclusion of this hearing because that would deny us the opportunity to cross-examine Mr Canfell in relation to the issues raised in that statutory declaration. And in those circumstances, sir, the employer has come here today fully aware of the allegations we are making against them. If they have been unable to present their case today, sir, then the matter should be closed, the agreement should not be certified and the process should start again, sir, and the process should be followed properly, sir. And we would say it is certainly not appropriate to take further evidence following the conclusion of the hearing and it isn't appropriate for us to be denied the opportunity to cross-examine the deponent on those issues.
PN1104
THE DEPUTY PRESIDENT: What would your view be to the possibility of the hearing being adjourned and reconvened to allow that if you consider that evidence and that issue to be important?
PN1105
MR EDMONDS: Well, sir, I certainly consider the issue to be important, sir. I would say that an adjournment is certainly not appropriate at this point in time, sir, the matter should be heard - well, it has been heard today, sir, it should be determined at the conclusion of this hearing. The employer has been aware of the case that has been led against it, sir, and certainly in those circumstances, sir, if they haven't come today with the appropriate witnesses to actually present their case today, sir, then the matter shouldn't be adjourned off for a length of time to enable them to further prepare their case, sir. I'm sure if we had additional time, sir, we could possibly present additional witnesses too, sir. But the process was set down for today, sir, we came available today, sir, we became willing to lead our case, sir, today and I might also say, sir, that we were willing to lead our case last week as well, sir. So in those circumstances, sir, the union has come prepared both times, sir, and if the employer is not prepared today, sir, then they shouldn't be given further opportunity to lead further evidence.
PN1106
THE DEPUTY PRESIDENT: Mr Borlase?
PN1107
MR BORLASE: Your Honour, I think Mr Edmonds stole my submissions that I made to you last Wednesday as to why the matter shouldn't be adjourned. Your Honour, it would only be if you still feel that you have an area of concern about that that you would need to do that. If at the close of submissions you feel that you require that further evidence to be satisfied then I think it is open for you to do that. I feel reasonably confident that you have sufficient material and sufficient information before you to be satisfied that the company has taken the appropriate steps. I think that the evidence that you have heard from Mr O'Byrne is highly unreliable in respect of those issues. But I think at the end of those submissions you feel that you don't have sufficient before you, then it is open to you to seek that further clarification from the company.
PN1108
THE DEPUTY PRESIDENT: Thank you for that. In making closing submissions I would ask the applicants to focus on the obligation on the Commission via section 170LK(2) and (3) for the employer to take reasonable steps in relation to both 170LK(1) and (2). That is the test in the statute, I repeat, that the employer must have taken reasonable steps in relation to their duties under (2) and (3) and in relation to 170LE, the statutory requirement for the employer to give all of the persons a reasonable opportunity to decide or give their approval, the emphasis being on a reasonable opportunity.
PN1109
In that context I would also ask for advocates to submit on whether, in fact, it would or would not make any difference in the event that whether it is (1) (2) or (3), employees may have voted who didn't vote, whether that would have made any practical difference to a just outcome for the parties. By a just outcome, I mean in relation to the question of the valid majority of the vote and I'm also referring now in the wider context of justice under the Act in a more general sense. Having given those views and requirements I would now ask for the closing submissions.
PN1110
MR EDMONDS: Yes, sir, thank you, sir. This application is obviously an application to certify an agreement pursuant to section 170LK of the Act, sir. This application is opposed by the AMWU, sir, on behalf of several employees of Kaefer Integrated Services. It is opposed, sir, on a number of grounds, the first ground being that the employer failed to adequately comply with sections 170LK(2) and 170LK(3) of the Act, which placed on obligation on the employer to give notice of intention to make the agreement to the employees and to give them access to the proposed agreement.
PN1111
We would say, sir, in those circumstances the evidence of Mr O'Byrne is that there were a lack of copies of the proposed enterprise agreement. He himself was not given a copy of the agreement, he disputes that indeed copies were handed around. Further sir, he disputes that a copy of the agreement was placed on the notice board in the lunch room. In actual fact, the evidence of Mr O'Byrne is that his understanding of that was that that agreement had been up there some time prior to 14 May 2004, sir, and indeed it was a copy of the old agreement or the old proposed agreement, sir, and indeed not a copy of the new agreement.
PN1112
In those circumstances, sir, Mr Chamberlain has been unable to say with any certainty that indeed all the workers were given copies of the agreement. He has been unable to say with certainty that the new proposed agreement was pinned up on the notice board in the crib hut, sir. Indeed, he says his understanding was that was done but is not able to lead evidence to that effect. What I would point out in these circumstances, sir, is the burden of proof rests with the applicant to establish that these steps have been satisfied in order to have the agreement registered. It is not up to the AMWU on behalf of the employees to demonstrate that these steps have not been met, it is up to the employer to demonstrate that these steps have been met.
PN1113
Mr Chamberlain has come to you today, sir, and is unable to establish that indeed those have happened. He can say to you, sir, his understanding is that it has happened or his instructions were that they were to happen but he can't say to you that they have happened, sir. So in those circumstances, we would say, sir, in circumstances where he can't give that evidence that it definitely has happened and where there is evidence in front of you that indeed those steps have not been complied, then in those circumstances the agreement should not be certified.
PN1114
Alternatively, sir, the second limb of our argument is that there were a number of workers absent who did not have the opportunity to vote in relation to the certified agreement. In particular, sir, we've led evidence of three employees, sir, who were denied the opportunity to vote in relation to the certified agreement. The evidence from Mr O'Byrne was that he was sick on the day the agreement, sorry, he was sick on the day the vote was taken. And Mr Chamberlain has given evidence that with at least one other worker who was sick, he attended that worker's house and took his vote, yet he didn't give that opportunity to Mr O'Byrne.
PN1115
Now the evidence of Mr Chamberlain was that they considered that at least some of the casuals if they weren't working on that day, then they weren't entitled to vote as employees. I think, sir, that that seriously throws into doubt the definition of employee that the company has adopted with respect to section 170LE:
PN1116
A valid persons of majority employed at the particular time whose employment is or will be subject to an agreement.
PN1117
The employer has put to you today, sir, that if a casual is not engaged on that particular day then they are not employed. We would say, sir, that that is not the circumstance at all, that indeed in those circumstances, it appears that at least two and potentially more employees have been dis-enfranchised by this process. In those circumstances, sir, while those two votes may not necessarily make a practical difference to the outcome, sir, we would say in those circumstances that if there are other employees that fall into that category and unfortunately we don't have access to the employer's records - - -
PN1118
MR BORLASE: Commissioner - - -
PN1119
THE DEPUTY PRESIDENT: Mr Borlase?
PN1120
MR BORLASE: This is venturing off into speculation which again has got nothing to do with the evidence that is before the Commission.
PN1121
MR EDMONDS: Well, if Mr Borlase doesn't agree with me he can address that in his submissions, sir. Until that time I would like to finish.
PN1122
THE DEPUTY PRESIDENT: Continue, Mr Edmonds.
PN1123
MR EDMONDS: Thank you, sir. So in those circumstances, sir, if there is some dispute as to what constitutes a person employed at a particular time, his employment is or will be subject to an agreement, if the employer has adopted the wrong definition of that, sir, then I don't think they can stand in front of you, sir, and say that they've got a valid majority in those circumstances, sir. I would say, unless the Commission is satisfied that they have properly addressed the issue of whether the person is employed at a particular time his employment is or will be subject to the agreement, unless they have properly defined those people, sir, then the valid majority should not stand.
PN1124
Finally, sir, we would say that there was approximately 19 workers that voted in relation to the certified agreement. Already, sir, that number is down to 10. In those circumstances, sir, I would say that the vote itself is precarious, sir, it appears that of 19 workers that have voted on the agreement that will now only apply to nearly half that number, sir. In those circumstances, sir, it is not appropriate to certify an agreement approved by such a large number of people which will now apply to only a small majority of people, sir. While it may be true, sir, that those two votes may not make a difference out of 19, sir, if the vote were taken today it is quite possible that those two votes in addition to the five votes against it would be an overwhelming majority against the certified agreement, sir.
PN1125
So in those circumstances, given the wildly fluctuating numbers of employees in this workplace, sir, I would say that the Commission cannot in good conscience certify this agreement. And I would ask the Commission to send the employer back to the workforce to follow the process again properly, sir, and to ensure the Act is complied with in accordance with the certified agreement. Thank you, sir.
PN1126
THE DEPUTY PRESIDENT: What in the Act, Mr Edmonds, supports the proposition you've just put about the workforce now being a smaller number than it was at the time of the vote?
PN1127
MR EDMONDS: Well, it is to do with the Commission acting in equity and good conscience, I suppose, sir. A strict legal definition of valid majority may very well decide that there is a valid majority of employees. However, sir, if you were to act in equity and good conscience, sir, in circumstances where there used to be 19 employees and now there is only 9, in those circumstances, sir, we would say that in equity and good conscience, you can't in good conscience certify an agreement to apply to 9 employees of which potentially five have voted against it and maybe another two may have voted against it as well, sir, of which potentially a majority of those employees would not be covered it, won't be covered by - sorry, certainly voted against being covered by that agreement, sir, we would say that it is not appropriate in those circumstances. So on that basis, sir, we would say in good conscience, sir, the Commission can't certify this agreement.
PN1128
THE DEPUTY PRESIDENT: In relation to what I put to you to address and I am not sure that you have addressed, were the particular provisions in relation to a reasonable opportunity and reasonable steps.
PN1129
MR EDMONDS: Yes, sir. Well, I would certainly say in those circumstances, sir, that I certainly have addressed that issue, sir. I've said that the burden is on the employer in these circumstances to establish that they have given a reasonable opportunity to the workers to have notice of the intention to make the agreement and have access to that proposed agreement. Now we've got evidence from Mr O'Byrne today, sir, to say that he didn't have access to the proposed agreement. And we've got access from Mr Paull, who said that while he read a copy of the agreement none was ever handed to him.
PN1130
In those circumstances, sir, also in the circumstances where Mr Chamberlain can't give evidence that a copy of the proposed agreement was placed in the workshop. He can only give evidence, sir, that he handed out the agreement to some of the employees but he certainly can't give evidence that a copy was posted in the lunch room. We would say, sir, in those circumstances the employer has failed to satisfy their burden to demonstrate to the Commission that reasonable steps were taken to ensure that every employee had a copy of the proposed agreement and that burden falls on the employer, sir, not on - it doesn't fall on the employees to establish that the employer didn't take reasonable steps. It falls on the employer to establish they did take reasonable steps and I don't think they can establish that, sir, and that is what I've put to you today.
PN1131
THE DEPUTY PRESIDENT: Thank you.
PN1132
MR EDMONDS: Thank you, sir.
PN1133
THE DEPUTY PRESIDENT: Mr Borlase?
PN1134
MR BORLASE: Thank you, your Honour. Your Honour, in terms of section 170LK(2) and (3), I think the evidence is quite clear that the employer did take reasonable steps. The evidence of Mr Chamberlain is unshaken, that he is positive that he handed out copies to some 14, 15 employees by hand and that the two employees who were on shift work, he has had very positive assurance from a supervisor who is long standing with the company who Mr Chamberlain's evidence is that he has never let him down before, and Mr Chamberlain's evidence is that in conversation with the supervisor that he has confirmed to him that he carried out his instructions of providing the notice and the agreement to the employees on the shift work and there is no evidence before the Commission that that did not occur.
PN1135
You would have that similar evidence in respect of the additional copies being left and being posted on the notice board by a supervisor who Mr Chamberlain has complete faith in, in terms of following out instructions in respect to matters of this nature. And Mr Chamberlain's evidence is that that supervisor was aware of the significance and the importance of doing that to ensure that that occurred. The evidence from Mr O'Byrne with respect to Mr O'Byrne is inconsistent and I would categorise it self-serving.
PN1136
There is no consistency there in terms of the knowledge of when votes were taken, whether he voted, no consistency there. He has no knowledge of people that might not have received the agreement, claiming - starting his evidence off: A few short, and then just merrily adding numbers as he went. I would submit to you, sir, that his evidence should not be relied on in any way, shape or form. His evidence is also further that there were copies there and he could have had a look at somebody else's copy if he so desired.
PN1137
However, what we say in respect to that evidence is that Mr O'Byrne is getting mistaken between the event in April when Mr Chamberlain acknowledges that he didn't have sufficient copies to go around versus the meeting which took place on the 14th which Mr Chamberlain is absolutely adamant took place and that he handed copies to people personally in the workshop, standing there. So we believe that that burden of proof in respect to those issues is certainly satisfied.
PN1138
Having regard to section 170LE in terms of those people having a reasonable opportunity to vote, the evidence is quite clear in terms of Mr Reid, firstly that he had seen and read a copy, so whatever steps the company took that certainly indicates that it achieved its ends. In terms of his ability to vote on the agreement, it was quite clearly the intention of the company and in terms of the evidence that is before you, that there was not an intention for Mr Reid to return to the work site. They had another sheet metal worker there to be able to do sheet metal work and it was only as a consequence of that person's death and work arising that Mr Reid was offered a new contract of employment to come back and work.
PN1139
So quite clearly at the time when the vote was taken in the company's mind there was no reasonable expectation that Mr Reid would be expected to vote. Beg your pardon, I'm referring to Shane Paull there. In respect to the other employee who did not vote, Mr O'Byrne and the sick employee who did vote, the clear distinction has been made that the person who did vote, it was expected that he would be returning to work and that his absence was a temporary aberration. And the requirement of section 170LE is that those people whose employment is or will be subject to the agreement make or genuinely make the agreement.
PN1140
In the company's mind and quite clearly the evidence is of Mr Chamberlain, that the employee who did go to visit, he expected that employee to return to work and to work under the agreement and therefore he extended that opportunity to vote to that employee. In respect of the other employee, Mr O'Byrne, quite clearly in the company's mind it was not expected that he would be returning to work and that he would be working pursuant to the agreement, therefore there is no need for him to be given an opportunity to vote.
PN1141
THE DEPUTY PRESIDENT: Are you saying that his employment had been terminated?
PN1142
MR BORLASE: Well, effectively it is a casual employment and it only gets reinstated each time the person gets called in. He had not been called in to work, he was not employed at the time and therefore not an employee of the company pursuant to section 170LE and no expectation. So there wasn't a need for termination, per se to take place in terms of the person being told: You are no longer employed, because his employment finished and then he was sick and unavailable to be available for work had employment been offered to him. So he wasn't an employee. And the expectation of the company at the time of the vote was that he wasn't going to be asked to come back to work and that is the evidence of Mr Chamberlain in respect of Mr O'Byrne.
PN1143
So from that perspective, he simply wasn't an employee and no expectation of him being an employee as well, because they hadn't expected to be offering him further work because of their understanding as to the status of his health. So that is simply two people, two people that we say were not employees and were not expected to be employees and were not expected to be covered by the agreement. Now, if in any way, shape or form, and bearing in mind that they are casual employees, that we are seen to be wrong in respect of that we say that that has got no practical effect on the outcome of the vote that was taken by those employees, because even assuming, and let's assume given that they're here giving evidence on behalf of the union, that they would have voted against the agreement it still would have left an outcome of 14 in favour and 7 against the agreement, therefore it has no practical effect at all on the outcome of the vote.
PN1144
The evidence that is before you in terms of the statutory declaration is that those people that voted at the time were fully expected to be working under the agreement. The only reason that those people are not working under the agreement is because of industrial action that's been taken and bans that have been put on the work that these employees would otherwise have been doing by the union that is here today objecting to this agreement being put forward.
PN1145
So for them to put forward a submission that in equity and good conscience the Commission should not ratify this agreement because the numbers are down then I don't know how they can stand there in good conscience and make such a submission when it is a consequence of their actions and bans that they have placed on work which has caused this company to have to reduce those employees.
PN1146
Certainly, the intent of the company would be that once and if those bans are lifted that it would be seeking to get those people back to work to be able to complete the work for which it has contracted. So effectively we see no inconsistency in that, and I believe that is the evidence of Mr Chamberlain at 6.2 and certainly 6.3. Sir, on the basis of that, we say that the Commission should be satisfied that section 170LK(2) and (3) have been satisfied by the employer.
PN1147
The only evidence that has been brought before the Commission of somebody who claims they did not see the agreement was quite clearly somebody who says that they were very aware that there was documentation there, that there was a proposal that was put forward. So even from that aspect we are not talking about a person who was in ignorance of what was going on and being able to pursue this matter at all in any way, shape or form.
PN1148
Certainly, in respect to section 170LE, that aspect is certainly satisfied, we say, because all the people who were employed and were on the books, and this is an issue that Mr Chamberlain addressed to a question put by Mr Edmonds in terms of whether or not there were any other people on the books, and his response to that was quite clearly, no. So there is not this mythical group of people floating around that Mr Edmonds would have you believe.
PN1149
In response to a question that he put Mr Chamberlain put the response quite clearly that that was all the people that were there and that there was only Mr Auburn and Mr Paull who effectively, for want of a better expression, were not given an opportunity to vote and that is, we say, because they were not employees and they were not entitled to and the expectation and the state of mind of the company at the time the vote was taken was that they would not be employees in the future and covered by the agreement.
PN1150
In any event, if wrong on that it makes no practical difference to the outcome of the vote and it would be an injustice to those 14 people who voted in favour of the agreement, particularly and hopefully once those bans are lifted for them to return to work, that they would receive the benefits of that agreement. May it please the Commission.
PN1151
THE DEPUTY PRESIDENT: Thank you. What is your submission in relation to what Mr Edmonds has put, that if - and I say if - the Commission found that it could not certify the agreement what would your position be in relation to his submission that the process should be recommenced under the Act?
PN1152
MR BORLASE: Well, your Honour, that is not a direction which I believe is available to the Commission to do. I mean that is a hypothetical and I would need to receive instructions from the company about what it wanted to do in terms of pursuing an agreement or anything of that nature. That is a complete unknown.
PN1153
THE DEPUTY PRESIDENT: Thank you. Having heard the matter now for some two hearings over two days and in the context that there is strongly contested submissions and evidence, given that conflicting evidence and given that there are some important questions of law that the Commission will need to determine in the context of that evidence, I formed the view that whilst my mind is still open I need to reflect further on what has been put.
PN1154
Whilst I had hoped to make a decision today that will not be possible. Hence, it will be necessary to reserve my decision but I can assure the parties that at the earliest opportunity when I have fully considered and decided the issues then a decision will issue. We will now adjourn.
ADJOURNED INDEFINITELY [1.21pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
VINCENT STUART AUBURN, AFFIRMED PN689
EXAMINATION-IN-CHIEF BY MR EDMONDS PN689
CROSS-EXAMINATION BY MR BORLASE PN747
WITNESS WITHDREW PN784
SHANE ERIC PAULL, AFFIRMED PN785
EXAMINATION-IN-CHIEF BY MR EDMONDS PN785
CROSS-EXAMINATION BY MR BORLASE PN824
RE-EXAMINATION BY MR EDMONDS PN845
WITNESS WITHDREW PN851
ROSS CHAMBERLAIN, AFFIRMED PN854
EXAMINATION-IN-CHIEF BY MR BORLASE PN854
EXHIBIT #2 STATUTORY DECLARATION OF ROSS CHAMBERLAIN PN862
CROSS-EXAMINATION BY MR EDMONDS PN933
RE-EXAMINATION BY MR BORLASE PN1061
WITNESS WITHDREW PN1097
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