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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 6266
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER GRAINGER
AG2004/1564
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by S.J. Weir Pty Ltd for certification of
the S.J. Weir Pty Ltd Enterprise Agreement
2004 in Victoria
MELBOURNE
2.48 PM, THURSDAY, 26 FEBRUARY 2004
Continued from 19.2.04
PN34
MR DOUGLAS: I seek leave to appear for S.J. Weir. I understand that is consented to by Mr Maddison, as I equally consent to his intervention and I am happy to persuade you, sir, of any circumstances of why leave should be granted if you require that.
PN35
THE COMMISSIONER: Thank you very much, Mr Douglas. Mr Maddison?
PN36
MR J. MADDISON: Yes, Commissioner, I appear on behalf of the intervener, Mr Maher. Also with me today is MR M. BROOMHALL. As my friend, Mr Douglas, indicated, we do not oppose leave of Mr Douglas in this matter. Commissioner, we did indicate to Mr Douglas that we would be seeking an adjournment of the matter this afternoon and I did that first - I sought to have some discussions with Mr Douglas early today, noting that people were coming not necessarily just from Collins Street but from Ballarat and with a view of attempting to avoid people unnecessarily coming to Melbourne, I sought some discussions with Mr Douglas in relation to the matter this afternoon and indicated to Mr Douglas that we would not be in a position to provide the witness statements until the hearing today, which I have done.
PN37
I did provide Mr Douglas with submissions by e-mail around 12.30 and copied them to yourself, Commissioner, as well. It was only this morning where Mr Douglas indicated there would be four witnesses and further material that he would be relying upon. Those witness statements were e-mailed to me at around about 11.30. At 11.30 today I started the process of taking final instructions and settling the two witness statements. Commissioner, this matter was last on before you last Thursday. I had meetings both with Mr Broomhall and Mr Maher on Monday. Draft witness statements were, at that stage, sought to be done.
PN38
I sought further instructions over the next couple of days and they were faxed to both of the witnesses on behalf of the intervener last night and today those witness statements were settled. Mr Broomhall's settled at around about 1.30 today. I have had an opportunity to briefly peruse and seek some initial instructions in respect of the four witness statements that were provided but we just simply, Commissioner, are not in a position to cross-examine those witnesses this afternoon.
PN39
THE COMMISSIONER: Well, you don't feel you would be able to put your best performance on, I think, Mr Maddison, is really what you are saying.
PN40
MR MADDISON: No, I am not saying that at all, Commissioner. What I am saying is that - - -
PN41
THE COMMISSIONER: Well, I haven't granted you leave to intervene yet, Mr Maddison, so why don't you sit down for a minute and let me deal with that.
PN42
MR MADDISON: Yes, Commissioner. We have further submissions in respect of the adjournment and - - -
PN43
THE COMMISSIONER: Sure. Thanks. I am happy to grant you leave to appear, Mr Douglas. I am happy to grant you conditional leave to intervene on behalf of the union, Mr Maddison, but I make absolutely clear that I intend this matter to proceed this afternoon as far as it possibly can go. My diary is extremely full over the next few weeks. I have made this time available; I have allocated it in my diary and I expected the parties to put themselves in a position to be able to deal with the matter. So I expect to hear from Mr Douglas' witnesses this afternoon. Mr Maddison, I expect you to do as much by way of cross-examination as you can this afternoon. If you feel that you need to do anything further, I am prepared to consider an adjournment at a later stage but I will have to see how far we get this afternoon.
PN44
MR MADDISON: Commissioner, may it be then - and I haven't heard from Mr Douglas but perhaps evidence-in-chief - given what you have put, Commissioner, that Mr Douglas' four witnesses do their evidence-in-chief and then a short adjournment, and Mr Douglas may also need some time, noting that I haven't heard from Mr Douglas, but we only provided our materials to him just shortly ago and a short adjournment perhaps at that point may be the best way to - the use of the Commission's time.
PN45
THE COMMISSIONER: I am happy to do that but while I am always very concerned about the time and convenience of the parties and people who are representing parties before me, the fact of the matter is that I also have to consider my own time and the Commission's time and availability. I set this afternoon aside to deal with the matter and I expected to deal with the matter. Now if I am to adjourn, it is going to be some weeks away before I would be able to hear the matter again and I don't consider it is appropriate for the matter to drag on unduly. So why don't we get going. But you have got Mr Broomhall with you in any event, Mr Maddison, don't you? You have got Mr Broomhall here, don't you?
PN46
MR MADDISON: Yes, Commissioner.
PN47
THE COMMISSIONER: So he could give evidence this afternoon as well, couldn't he?
PN48
MR MADDISON: From our side, I am certainly in a position to run our case and we came here prepared to do that. What I wasn't prepared for is the four extra witness statements we received a couple of hours ago and to cross-examine those people. That is my difficulty, Commissioner.
PN49
THE COMMISSIONER: Yes, all right. Well, let us just see how difficult it actually is. Thanks, Mr Maddison. Yes, Mr Douglas?
PN50
MR DOUGLAS: Commissioner, what I would propose to do is really just place my witnesses and put their statement before them. The matters that my friend wishes to cross-examine can come straight from his witness statements to put contrary matters. I will do much the same from my witness statements and if there are any short adjournments that are needed and perhaps maybe 10 minutes to get everyone organised beforehand - - -
PN51
THE COMMISSIONER: I am more than happy to do that. I am more than happy to grant a half hour adjournment if it is necessary, at an appropriate moment, but I would like to take the thing as far as possible this afternoon. I am, however, of course, open to the - I am just very, very concerned about my own availability to further hear this matter but it may well be, both Mr Douglas and Mr Maddison, that we actually can get this matter where we need to in terms of the witnesses this afternoon and that it may be appropriate to give the parties the opportunity to put closing submissions in writing. But let us see where we get to. Let us get under way
PN52
MR DOUGLAS: Certainly that was the suggestion that I was going to make. The other matter I just wish to raise with you - and I hope it is not presumptuous - it appears to me from my friend's submission that when you extract out a lot of it, there is only one area of evidence which is actually in contention and that is the meetings that occurred between the union officials - this is all on 12 January. That is the critical evidence, what happened on that day; was there enough of meet and conferring? Really, the rest of it is fairly uncontentious type of evidence in some ways and there really are only two major issues. Maybe we can refine it a little bit with a little bit of discussion between myself and Mr Maddison and with maybe a 10 or 15 minute break.
PN53
THE COMMISSIONER: Yes. When would you like that break?
PN54
MR DOUGLAS: I would probably like it now so that we can meet very quickly and see if we can confine that and then get straight into it and I will just lead the evidence by putting in the witness statement.
PN55
THE COMMISSIONER: Why don't I adjourn now and reconvene at 3. Mr Maddison, are you happy with that?
PN56
MR MADDISON: Commissioner, if the purpose of the adjournment is two-fold, to have some discussions with Mr Douglas and perhaps just have a little bit more time to look at the four witness statements, if we are going to do that now, I am happy to do that now. From what I understand from Mr Douglas is no further evidence-in-chief, then perhaps a little bit longer would be - - -
PN57
THE COMMISSIONER: All right. How long would you like?
PN58
MR MADDISON: I think half an hour if that is - - -
PN59
THE COMMISSIONER: All right. I am happy to give you - how about I give you till quarter past 3. All right. The quicker I adjourn, the quicker you can get to it. I will now adjourn.
SHORT ADJOURNMENT [2.56pm]
RESUMED [3.27pm]
PN60
THE COMMISSIONER: Yes, Mr Douglas.
PN61
MR DOUGLAS: Commissioner, I might just hand up a chronology which I don't think any objection has been taken to, and I will call my first witness, which is Mr Elford.
PN62
THE COMMISSIONER: Yes. All other witnesses are out of the room, I take it.
PN63
MR DOUGLAS: Yes, they are, except for the instructor to Mr Maddison, which I have agreed to.
PN64
PN65
THE COMMISSIONER: Mr Douglas, just before you get going with this witness could I get you formally to tender your submissions, which I will mark. So if you do that. This is a document faxed to my office today headed Submissions: Section 3 Factors.
PN66
MR DOUGLAS: Yes. Actually, I am somewhat embarrassed because I am not finding them but if I can seek those to be tendered that you already hold.
PN67
PN68
THE COMMISSIONER: The chronology which you have just given me you are tendering; is that right, Mr Douglas?
PN69
PN70
THE COMMISSIONER: And now this person's witness statement - - -
PN71
MR MADDISON: Sorry, Commissioner, I have just been provided with A2. I don't necessarily agree with all the contents but I just rise to express that.
PN72
THE COMMISSIONER: I note that I am receiving it simply as the position being put by the company. Thanks. Yes, Mr Douglas.
**** DARYL WILLIAM ELFORD XN MR DOUGLAS
PN73
MR DOUGLAS: Please, Mr Commissioner, if I could just have the witness shown his statement.
PN74
Would you give the Commission your full name?---Daryl William Elford.
PN75
Your address?---304 Smythes Road, Delacombe.
PN76
Your occupation?---Manager of S.J. Weir.
PN77
Now, you have a witness statement in front of you; is that correct?---Yes.
PN78
Are the contents of that witness statement true and correct?---Yes.
PN79
PN80
MR DOUGLAS: Sir, there are just several questions that I want to ask to amplify issues as a result of the witness statements.
PN81
THE COMMISSIONER: Yes.
PN82
MR DOUGLAS: At the time of the meeting on 18 December 2003 and the subsequent meetings of 12 and 13 January 2004, was the underpinning award to the enterprise bargaining available for inspection by employees?---Well, the award is always at the office if required, along with the EBA.
**** DARYL WILLIAM ELFORD XN MR DOUGLAS
PN83
When you refer to the EBA, you refer to the one that has passed its nominal expiry date but continued to have effect?---Yes, both that one and the previous one are at the office.
PN84
Are you able to amplify a little bit about what happened on 18 December 2003, just to explain the conversations, what occurred?---Right. Well, we called a meeting of our employees, of all our employees, and explained to them that our previous EBA had been lost somewhere between the Commission and the CFMEU and the MBA. We had been asked to sign another one but we decided that given that our head office is in South Australia, that it might be a sensible thing to do our own LK agreement and try and get some uniformity between the different branches. So we got a copy of their agreement, modified it to suit Victoria and called a meeting of our employees and submitted it to them with a letter as per the instructions, to consider it and then we would have a vote on it the next year and we came back.
PN85
How did you explain the agreement?---There was probably about half a dozen items that differed from the EBA and I explained what they were and then asked if there was any questions. I answered a few of the questions - or answered all the questions that were asked and basically everybody, without commenting one way or the other, took it away to look at it and I made the comment that it was the Christmas period but I would leave my phone on if they wanted to talk to me about it or they could talk to the union or anybody else that they wished to if they didn't understand it but they should - if they didn't understand it, they should speak to someone.
PN86
If I can take you now to 12 January and the meeting with Mr Broomhall. Can you explain how long that meeting was?---Well, the meeting went over a couple of hours but we spent a fair bit of the time talking about other issues. The actual EBA was probably spoken about for maybe half, three quarters of an hour, as I recall, about that.
PN87
Can you explain what that involved?---Well, basically, Yogi mentioned that obviously, being over the holidays, he hadn't had a chance to - - -
**** DARYL WILLIAM ELFORD XN MR DOUGLAS
PN88
THE COMMISSIONER: Could you not use nicknames; could you use people's - - -?---Mark - sorry, sir. Mark had explained that - - -
PN89
Mark Broomhall, is that right?---Mark Broomhall had explained that he hadn't had a chance to go through it entirely but he brought up a few points that he thought that it was probably not allowing, I guess, the union the full rights that they otherwise would have under the EBA. I think he mentioned the green book, which is the building industry agreement, Victorian Building Industry Agreement, and that there were some items in the EBA that weren't in ours, and I mentioned that items such as facilities and so forth would be covered by WorkCover and other items were in the award, the balance wasn't addressed in the EBA - in our EBA.
PN90
MR MADDISON: Now, you are aware there is a witness statement - and I apologise, Mr Commissioner, for referring to it as the witness statement of Mark Broomhall, but you are aware that there is a witness statement to that effect that suggested that around about 18 December 2003 he left a message with you by telephone?---On which date?
PN91
18 December 2003?---Well, if Mark did ring me, I didn't get that message. I didn't receive any response from anybody from the time we had the meeting to when we came back after Christmas, except from Jesse, which was the fax - Jesse Maddison from the CFMEU, who sent me a fax on the 23rd. I specifically went in there to see if there was any response, and that asked me to contact Mark, which I did on the 12th.
PN92
Referring again to the witness statement at paragraph 22, of Mr Broomhall, Mr Broomhall states:
PN93
At the meeting with Elford I went through each clause of the two agreements, that is, their LK agreement and the pattern agreement. Where there were exclusions and/or differences between the two documents, I asked Elford whether he would consider any changes. On each occasion that I suggested a change and the reason for it, Elford would simply respond that he was not going to make any changes.
**** DARYL WILLIAM ELFORD XN MR DOUGLAS
PN94
Did you go through these agreements verbatim in the way that is described?---Not as far as I am concerned, no.
PN95
And what was your attitude to the suggestions and changes that were raised by Mr Broomhall?---Basically, as far as I was concerned, we had worked out what we thought was a suitable agreement and I wasn't about to make any changes until the employees requested them. I mean, that is what it was there for. It was put on the table and given to them to look at and, when they had had a chance to look at it, to come back and say, well, we think this is wrong, and then we would consider changing them. But we really didn't get any suggestions to change anything, apart from what Mark and Peter had mentioned at the meeting, that they thought it was deficient from the union's point of view. Well, obviously it is because it is an LK agreement. But as far as the other issues were concerned, we weren't to actually change them and I wasn't even expecting anybody to come up with that suggestion until we got to a meeting or after that meeting with the employees. Well, I suppose anybody could have in the meantime but it wasn't suggested at the meeting that we should change things. It was - really just talked about what wasn't agreeable to Mark.
PN96
At paragraph 24 of Mr Broomhall's statement he says he was surprised that you wished to stay at the meeting on 13 January 2004. That was the meeting with the employees?---Well, he didn't show any surprise. I mean, he asked - he was - you know, he is pretty - what can I say - he is a pretty good person to get along with and he asked me if he could have the meeting with Peter on 12 January and he also asked permission to have - with the employees on the 13th. So I thought it was only fair to ask him if I could sit in on the meeting.
PN97
And did he object to that?---No, he didn't. I don't even recall whether he made any comment but he certainly - you know, as to whether I could but he didn't say I couldn't.
PN98
Thank you. Now, in respect to the witness statement of Mr Maher, you have read that witness statement, haven't you?---Yes.
**** DARYL WILLIAM ELFORD XN MR DOUGLAS
PN99
Paragraph 7 of the witness statement states:
PN100
Broomhall got back to me and informed me that apparently it had not been certified because the Master Builders Association lost the original document. I was further informed by Broomhall that S.J. Weir was going to undergo the process again and have the union pattern agreement certified. This was my understanding up until December 2003 when I was provided with a copy of the S.J. Weir non-union agreement.
PN101
Do you have something to say about that?---Well, S.J. Weir - either myself or John have never said to the MBA or the CFMEU that we would do another pattern agreement. We basically said we will consider it, the situation, but we have never actually agreed to do another one and - - -
PN102
THE COMMISSIONER: Can I just ask, Mr Elford, there has been discussion about or some comment about an agreement being lost. Was an agreement lost or - - -?---Yes.
PN103
It was?---We were advised in about July by the MBA that the agreement had gone missing. I mean, we had submitted it in February and in July they told us this.
PN104
So you recall you did actually see an agreement in February 2003; is that right?---We signed - we submitted an agreement in February 2003, certainly.
PN105
Right. And to the best of your knowledge, that was never certified?---That is what I am advised, yes.
PN106
MR DOUGLAS: It was voted upon and signed, the statutory declarations accompanying it went to the Master Builders Association and there is some mystery as to what happened between the Master Builders Association and the CFMEU. There is no blame attached. We just don't know what occurred.
**** DARYL WILLIAM ELFORD XN MR DOUGLAS
PN107
THE COMMISSIONER: Yes, sure.
PN108
MR DOUGLAS: I don't have any further questions for this witness.
PN109
PN110
MR MADDISON: Mr Elford, even though the agreement was lost, you were paying the rates contained within that agreement, weren't you?---Yes.
PN111
And abiding by other provisions in it as well?---Yes.
PN112
And you never informed the union that you were walking away from that agreement?---No, we didn't.
PN113
And you never informed your employees either, did you?---Not until we submitted the LK agreement.
PN114
You put that LK agreement to your employees on the day before break-up, didn't you?---Yes, we did.
PN115
And you put it to them after hours, around 3.30 or something?---After hours?
PN116
Well, at around 3.30 was the meeting with the employees on 18 December?---It was around that time, yes, yes, the day before we knocked off work.
PN117
And you intended, at that stage at least, to have a vote on 12 January?---That was the original intention, yes.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN118
The reason you set this timeframe, Mr Elford, was to prevent your employees or the union from trying to do anything about your proposal?---Well, I suppose you could assume that but - - -
PN119
THE COMMISSIONER: No, you don't have to offer up any assumptions. You tell me - you just answer the question - - -?---Okay. We - - -
PN120
- - - from your understanding of the situation?---Right. We had been working on the agreement for some weeks. We wanted to get it cleaned up before Christmas because we had other things to do and we thought, well, if we give it to them before Christmas they have got time to read it, time to talk to other people and, as it turned out, they finished up getting - by doing it that way, got 23 days rather than 14 days, so it gave them a bit more time to look at it.
PN121
Yes, but, Mr Elford, you knew, did you, that the union would be shutting down for at least a two-week period over Christmas? Were you aware of that fact?---Well, I am not aware of their hours but I did make the comment that I would be available on the phone and that I went back to the office on the 23rd, got Jesse's fax, so obviously he had - - -
PN122
That is Mr Maddison?---Mr Maddison's fax. So obviously I - and I was interested to see whether there was some response. So I decided that, well, as soon as I came back on the 12th I would ring Mark Broomhall because I was keen to get their opinion, to see if there was any problems.
[3.43pm]
PN123
MR MADDISON: Mr Elford, part of the reason you set that timeframe other than the reason you have just mentioned now was also to prevent either you employees or the union from trying to do something about stopping the LK agreement?---Sorry, I missed the last bit.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN124
MR DOUGLAS: Commissioner, I object. The question has been put and answered?---I just answered that, didn't I?
PN125
MR MADDISON: Well, he answered part of the reason as I understood the - - -
PN126
THE COMMISSIONER: Yes, well - - -
PN127
MR MADDISON: I didn't dismiss - - -
PN128
THE COMMISSIONER: - - - you are free to say, "I reject that"?---Well, I didn't quite hear the last bit, to be honest.
PN129
Look, I understand the point you are making, but I don't know whether - - -
PN130
MR MADDISON: Mr - I am happy to answer the - - -
PN131
THE COMMISSIONER: I feel he has answered it, Mr - - -
PN132
MR MADDISON: I am happy to answer the question again.
PN133
THE COMMISSIONER: Go on. Go on.
PN134
MR MADDISON: Mr Elford, the other reason, other than the reason you just gave about the timeframe was also to try to stop the union or your employees from doing anything about the LK agreement, wasn't it?---You are saying that you think that is the reason I did it. No.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN135
I am asking you, Mr Elford?---No. That is not the reason we did it.
PN136
Is there any reason that you never informed the union that you were walking away from the agreement that you previously reached with them?---No. I mean, the previous agreement was, as far as we were concerned, null and void. The 21 days had expired, it had been lost, we were seeking to do an agreement with our employees direct and not with the union, so I didn't see any reason to inform the union.
PN137
You have previous certified agreements with the union, don't you, Mr Elford?---Yes.
PN138
And you didn't think, even as a matter of courtesy, that you might want to tell the union that you had changed your intentions and you were going to walk away from the agreement reached with them?---Well, I suppose from one point of view that might have been the courteous thing to do, but on the other hand we felt that we might have suffered repercussions if we - if we had said anything about it before we were actually organised to hand it to the employees, because there was - that was something we were writing in house to present, so there was really - we didn't feel that we needed to talk to anybody else about it.
PN139
And those - - -
PN140
THE COMMISSIONER: Can I just ask - sorry, Mr Maddison. Can I just ask, Mr Elford, when did you become aware that the agreement that the company had signed in February 2003 was, if you like, missing in action?---I left for long service on 4 July and just after I left our office was rung by Mr Fisher from the MBA and we were advised then that it was lost. That is when we became aware of it.
PN141
So the company became aware - when did you come back from long service leave?---In October.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN142
Right?---But I had been informed by our office that - - -
PN143
Yes?--- - - - it had been lost, but that was all the discussion that was taking place. We didn't take it any further at that time.
PN144
Right. So when did the company make the decision to not do anything about that missing agreement but to progress the issue of an LK agreement with its employees?---Well, when I came back from long service in October, once we had attended to, you know, urgent matters we basically started on it then.
PN145
Yes. So is it really this - - -?---So about November.
PN146
Yes. So that really this matter was in your hands, was it, Mr Elford?---Yes.
PN147
Yes. Yes, all right, and was your - did you have any discussion with Mr Fisher at the Industry Association about it at all?---No, we didn't, because we were all a bit disappointed with the MBA because they only gave us one option; that was to sign another one, and as I have already explained to Mark Broomhall and others, we were - we only signed the EBA because we didn't have any choice, and we felt that we now had a choice.
PN148
Yes. All right. Can I do - sorry, Mr Maddison. I just want to take this one or two steps further. Was your understanding that the fact that the agreement had fallen outside of the 21 days stated in the Act for lodgment, really closed off the possibility of that agreement being certified?---Well, we sought opinions on it and got differing opinions, but at the end we thought that was the case. Actually we - I discussed it with Mark Broomhall, or he discussed it with me one day - - -
PN149
When would this have been? Before you went on leave or after?---I think it was before I went on leave.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN150
Yes?---It was - the subject came up during discussions of other matters that we were discussing.
PN151
Yes?---And I think he made the comment that, for whatever reason, it just sort of came out of the blue that he said, you know, that you are aware that the current EBA is missing. I said, "Yes, we are." And he said, "Well, do you think then that the previous agreement is still in force?" and I said, "Well, I suppose so," and he said, "You are happy to comply with it?" and I said "Yes, we are." I said, "Well, we are complying with the current rates and" - - -
PN152
By that you meant the agreement that had not been certified. The agreement that had been signed but not certified. Is that right?---No, no. Sorry.
PN153
Or the previous agreement?---I am sorry, the previous one. That is what he - - -
PN154
The previous agreement?---Yes, because Mark and I both agreed that if the current one was null and void then the previous one might still be in force, except of course that we were paying the rates at the current one.
PN155
Yes. Are you aware that the union and/or the company could each have applied for an extension of time for lodgment of the missing agreement? Did you know that?---No, I didn't know that.
PN156
Yes, all right. Okay, fine. Thanks, Mr Maddison.
PN157
MR MADDISON: In response to a question from the Commissioner, Mr Fisher only gave you one option to re-do a new one. Don't you think that would have been a reasonable thing for Mr Fisher to say, seeing as you had already signed one of them?---From his point of view it was probably the only option I suppose he saw.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN158
You talked earlier about not informing the union for fear of repercussions, and one of those repercussions may be protected action you were referring to, Mr Elford?---Well, I suppose I don't know a lot about protected action, but I didn't really want to raise an issue that would be negative towards what we wanted to do, if it wasn't necessary.
PN159
You are aware, Mr Elford, that in the absence of the current certified agreement that a union and their members, your employees, are entitled to take protected action?---Yes, I am aware of that.
PN160
And you thought that this may be one option that the union or some of your employees - - -?---Well, as I said, I don't know a lot about it so I can't really comment.
PN161
The agreement you put to your employees was not a negotiated document with your employees, was it?---Not the initial one we put on the table that was there for negotiation.
PN162
Sorry?---We put it - we gave it to the employees for negotiation, to look at and consider.
PN163
But that document you put to them was something that S.J. Weir Management put together?---Yes.
PN164
And you say that that was a document that was for negotiation?---Well, that is what we gave them the - with the letter we gave them with the document, said here's the agreement for you to consider and if you didn't understand it to get advice from the union or whoever they wanted.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN165
But you said in that letter, didn't you, that this document was going to be voted on, on 12 January?---Well, that was giving them the timelines that we were - I explained to them that once they had been signed there is only a period of 21 days that - before it could be lodged. So I explained that situation and said, so that we have given it to you to give you the 14 days or more, which would be after Christmas, and that once they - it was signed, there is only 21 days to lodge it. So I said we need to have everybody signing on about the same days, otherwise we are losing days to have it - to give people time to lodge it.
PN166
And on behalf of one of your employees, Mr Broomhall met with you on 12 January?---Yes, and Peter. Peter Maher.
PN167
And at that meeting Mr Broomhall pointed out some things that he would like to see in your proposed agreement, did he not?---Yes, we discussed the agreement.
PN168
Mr Broomhall, Mr Elford, asked you to consider putting certain things into your agreement, did he not?---Such as?
PN169
I am asking you the question.
PN170
THE COMMISSIONER: He is asking you. He gets to ask the questions. You get to answer them?---Well - - -
PN171
If you don't know, you say you don't know?---Well, we talked about it. He didn't actually ask me to put anything into it. He basically said he thought it was not what was in it, it is what wasn't in it.
PN172
And - - -?---And as I explained before, he was referring I think to the green book, in particular.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN173
MR MADDISON: And you understood that by Mr Broomhall pointing out things that weren't in there that he would like to see those things in your proposed agreement?---Yes, I mean, yes. I know Mark would like to have - well, he didn't like the agreement at all, obviously. He is obviously - so he wanted - he would have liked to have put everything from the old EBA into this one.
PN174
And that is what you understood was what he was trying to convince you or encourage you to do in that meeting, wasn't it?---That is what he is there for.
PN175
Exactly. But the position of the company was very clear, that you had a document, you were happy with it, and that was the document you were going to put to the vote?---That is right. After the employees had their time to consider it, and change it if they - or ask to change it if they wanted to.
PN176
THE COMMISSIONER: But do you consider that an employee did ask you to make changes to the document?---I wasn't asked to change anything.
PN177
Well, what did Mr Maher ask you to do? Mr Broomhall was representing Mr Maher, who is one of your employees?---Well, I don't think I was asked to change anything. The only thing perhaps might have been mentioned was that Mark mentioned that - and I think Peter agreed with him, that there is an item in there which said that it was 12 weeks period for a casual employee or something, or a trial period or something like that. They commented that that was, you know, if you didn't sort - couldn't sort the bloke out the first two weeks he wasn't worth having. Why wait 12 weeks? And I said, look, that might be a typo, I will just check and if it is wrong I will, you know, let you know. But it wasn't wrong. It was as per the Adelaide one so we left it as was. But I can't recall any other items he asked to change, because we had a meeting and we haven't got a record of anybody asking to change anything.
PN178
MR MADDISON: Which meeting are you referring to, Mr Elford?---Well, of the 18th and on the - at the St Pat's site, with the employees.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN179
On the 18th you are talking about now?---Yes.
PN180
THE COMMISSIONER: And what about the meeting in January?---18 January, I am sorry.
PN181
18 January?---Yes.
PN182
Sorry.
PN183
MR MADDISON: 18 December you are referring to?---No. No, sorry, 12 January. I mixed up the dates, yes. No, I was referring to the 12 January meeting, or the 13 January meeting that we had with the employees. That is when I expected that if there was any problems should, you know, if people wanted to change things they would have said we want to change it, we don't like it, or whatever.
PN184
But that meeting on the 13th was a meeting that Mr Broomhall requested that he have with your employees?---Yes.
PN185
It wasn't a meeting that you instigated?---No. I instigated the one - well, you instigated the one on the 12th and I complied. I rang Mark, had the meeting with Mark and Peter, because he was representing Peter, so I had the meeting with him on the 12th.
PN186
And what was - on what date did the vote take place?---Well, the meeting was held on the 13th and the guys were asked to vote. Some of them handed their letters back that day - - -
PN187
Is this the meeting that Mr Broomhall had asked you to convene? Is that right?---Yes.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN188
And so is that the meeting at which you conducted the vote?---The vote wasn't conducted at the meeting.
PN189
Yes?---We handed them the letter, an undated - a letter that they could sign undated.
PN190
Yes, yes?---We didn't know whether it was going go longer because Mark might have - - -
PN191
Yes?--- - - - brought up something that meant we couldn't put it - the original date we were going to put on the letter. So they were handed a letter without a date on it, in an envelope, and the idea was that - because we had to provide those letters with our submission that they would return the letter in the envelope the next day, because obviously there had been no negative reaction to it at the meeting, and Mark Broomhall basically said that, you know, he hadn't had a chance to really read it properly so he didn't know a lot about what was in it but - - -
PN192
No, that is all right. Don't - that is all right. Okay. Fine, I have got that picture. Yes, Mr Maddison? I don't know how much more you can traverse with Mr Elford.
PN193
MR MADDISON: Until I have finished my questions, Commissioner. On the meeting of 18 December with your employees - - -?---Yes.
PN194
- - - there was - do you recall Mr Maher asking you a question about Incolink and the fact that after eight weeks the money would stop going into the Incolink fund and could go into either super or into their weekly wage?---Yes.
PN195
Mr Maher asked the question about what happened to the insurances?---Yes.
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN196
You recall that question?---Yes.
PN197
And you responded that you would get back to him about that?---Yes. Well, I must apologise. I didn't get back to him about it, but now that I have read the statement I - that is when I remembered that - or I have been reminded now that I didn't get back to him about it. But I did state that we, you know, the insurances would be there, which is what, you know - the - we would be paying the insurance premium.
PN198
Which insurance premium?---For the - the trauma insurance.
PN199
But there are other insurances, are you aware as well, Mr Elford, about? Dental, accidental dental - which - - -?---Yes, the full $13. We said we were going to pay the full amount of the Incolink that we were paying in now, with the exception of the 54.90 which was stated in the submission, the LK. It clearly sets out that we were going to pay the $54.90 directly to the employee to either put it in his super or put it in his pocket, whatever he liked, but we would still continue to pay the remaining two items, which is the insurance and the portable sick leave.
PN200
Are you aware, Mr Elford, that by paying that 54.90 with Incolink that that also covers a couple of additional insurances?---No, I am not aware. That is not what I have been advised, but - - -
PN201
That was the issue that Mr Maher was seeking to raise with you?---Well, he didn't point that out to me, because when I mentioned about the $13 I appeared - I got the impression from Peter that the satisfied him.
PN202
Well, you just responded to me a minute ago, Mr Elford, that you didn't respond to that query, and you were going to get back to him and you apologised for not - - -?---No, I said - I said I told him at the time that I would check whether - whether we could in fact do that. In other words, pay the insurance premium without paying the 54.90, because we have had the experience with office staff, you can't do that. So I - - -
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN203
THE COMMISSIONER: No, it is all right, Mr - sorry, Mr Elford. I don't want to hear all about this. Go on. Thanks, Mr Maddison.
PN204
MR MADDISON: The employers were informed on 18 January that it would be a secret vote. Is that correct, Mr Elford?---Yes. Well, a vote. I don't know whether I said secret, but a vote.
PN205
Do you recall if you said a secret vote or not?---Well, I can't recall. I know it has been mentioned in the witness statements, but whether I did, I can't really recall.
PN206
MR DOUGLAS: Mr Commissioner, if I can just object. There is no issue here of discrimination, none of coercion. The submissions that are raised by my friend don't raise that. This is an issue which is really not relevant to it at all.
PN207
THE COMMISSIONER: Yes. Go on, Mr Maddison.
PN208
MR MADDISON: In the submission we made a very - - -
PN209
THE COMMISSIONER: It is all right. Go on.
PN210
MR MADDISON: So if it was put that you did say it was a secret vote you wouldn't be able to deny that?---Sorry?
PN211
If it was put to you that you did say it was a secret vote you wouldn't be able to deny that?---I can't recall the words I used, but I think I said we were going to - we would have to have a vote, and by all employees. Because we were required to provide that with the application. But I tried to keep it - - -
**** DARYL WILLIAM ELFORD XXN MR MADDISON
PN212
THE COMMISSIONER: All right. It is okay, Mr Elford. Go on, Mr Maddison.
PN213
MR MADDISON: Yes, thank you, Mr Elford. No further questions, Commissioner.
PN214
THE COMMISSIONER: Good, fine. Mr Douglas?
PN215
MR DOUGLAS: I don't seek to re-examine.
PN216
THE COMMISSIONER: Yes.
PN217
MR DOUGLAS: The witness may be released. The witness may be released. I don't seek to - - -
PN218
PN219
THE COMMISSIONER: Yes, Mr Douglas?
PN220
MR DOUGLAS: My next witness is Mr John Laverick.
PN221
THE COMMISSIONER: Yes, call Mr Laverick. Well, I am wondering how far we will get this afternoon, Mr Douglas, at this rate. We will be here 'til midnight. We will see how we go.
PN222
MR DOUGLAS: Well, I have nothing to lead from the following witness at all, so - - -
PN223
THE COMMISSIONER: Yes. Yes, all right. Fine.
PN224
PN225
MR DOUGLAS: Mr Laverick, will you give the Commission your full name, address and occupation?---John Edwin Laverick. I live at RSD E966 Main Road, Warrenheip, and my occupation is a construction manager with S.J. Weir Pty Limited.
PN226
Now, Mr Laverick, you have a statement before you, is that right?---That is correct.
PN227
Have you had an opportunity to read that statement prior to today? Have you had an opportunity to read that statement today?---I have.
PN228
And are the contents of that statement true and correct?---It is.
PN229
PN230
MR DOUGLAS: And I will leave him open for cross-examination.
PN231
PN232
MR MADDISON: Mr Laverick, I note you were on leave from 19 December to 19 January 2004. Did you attend a meeting where the proposed agreement was handed out on 18 December?---Yes, I did.
PN233
And so you were at the meeting where Mr Elford provided the copies of the agreement and - to the employees?---That is correct, yes.
**** JOHN EDWIN LAVERICK XXN MR MADDISON
PN234
That meeting took place around about 3.30 on that - the day before knock-off?---Precisely the time I can't confirm, but yes, approximately 3.30.
PN235
And do you have any recollection about how long the meeting lasted for?---Probably it went on for in excess of an hour and a half, to my recollection.
PN236
Did you say anything at that meeting, Mr Laverick?---Yes, I did.
PN237
Do you mind telling the Commission what you said?
PN238
THE COMMISSIONER: To the best of your recollection.
PN239
MR MADDISON: To the best - of course?---It was explained to the employees present that the reason for the meeting was that the - - -
PN240
THE COMMISSIONER: No. Did you do the explaining? We are interested in what you said at the meeting. So can you focus on your recollection of what you said at the meting?---This is what I said.
PN241
Yes, all right. Okay, fine, good?---I believe I said, yes. I stated that the chaps - the reason for the meeting was because that the previous LJ agreement that they had approved and signed, we had been notified in July, thereabouts by the MBA that it had - the document had gone missing, and we had also been contacted on about two other occasions from the MBA, stating that the union had - the CFMEU had contacted the MBA and said that they were asking as to why S.J. Weir hadn't signed the document and got back to them with it. Through discussions with the MBA it was stated that the document, for nobody's reason has been mislaid, which gave S.J. Weir then the opportunity to re-assess their situation in signing that agreement, primarily because the - we believed that we had support from the taskforce which had been convened, and
**** JOHN EDWIN LAVERICK XXN MR MADDISON
through discussions with the taskforce we thought, well, prior to that we would never have been able to, we thought, get through an LK agreement. But because the taskforce was there, we thought we may have had the opportunity of getting an LK agreement certified. I also stated to them that we had been working on that agreement for some couple of months and that we were ready at this point, at that point in time to show the chaps the agreement that we had drafted, and for them to take it away and have a look at it, comment on it.
PN242
MR MADDISON: And the taskforce advised you about how you could do an LK agreement, Mr Laverick?---Certainly not. No.
PN243
THE COMMISSIONER: Sorry, Mr Maddison. So this was the first time the company had discussed the matter with its employees in six months, since it had been told by Mr Fisher that an agreement which had been voted on and entered into had been lost. Is that right?---In group format, yes.
PN244
Yes, all right. That is fine. Thanks. Thanks, Mr Maddison.
PN245
MR MADDISON: Mr Laverick, at no point prior to 18 December did you inform the union that you were going to walk away, or the company was going to walk away from the agreement that had been lost?---No.
PN246
And at all times up 'til 18 December 2003 your company were complying, essentially complying with the terms of the lost agreement, weren't they? I mean, they were paying the wages and other matters contained in that agreement?---I believe so, yes.
PN247
And when there were issues raised, for instance by Mr Maher, he would raise them by reference to that agreement with you?---I wouldn't say that agreement, no.
PN248
Mr Broomhall raise any issues with you in respect of the lost agreement, and by - - -?---Personally, no.
**** JOHN EDWIN LAVERICK XXN MR MADDISON
PN249
But in any event S.J. Weir were complying with the terms of that lost agreement?---Yes.
PN250
THE COMMISSIONER: How do you comply with terms of a lost agreement if you didn't have a copy of it, Mr Laverick?---We don't deny - well, I don't deny that we did not have a copy of it.
PN251
All those negatives?---We - we - - -
PN252
But you do have a copy of the agreement?---We certainly do.
PN253
Yes. So there is no doubt in the company's mind the nature of the provisions, or the precise provisions of the agreement which had been earlier entered into. Is that right?---That is correct.
PN254
Yes, all right. Okay, fine. Thanks. Yes, Mr Maddison. I don't want to hurry you up, but - - -
PN255
MR MADDISON: No. I can sense that may or may not be the case, Commissioner.
PN256
THE COMMISSIONER: Well, as I say, I think these - if you have traversed - it appears to me that the ground has been well traversed. But you may have some wonderful surprise for me.
PN257
MR MADDISON: Putting me under an extreme amount of pressure there, Commissioner. Either way, I might not come out looking very good. I think I will go with the former, Commissioner. Thank you, Mr Laverick. No further questions.
**** JOHN EDWIN LAVERICK XXN MR MADDISON
PN258
THE COMMISSIONER: Yes. Anything in follow up, Mr Douglas?
PN259
MR DOUGLAS: I don't seek to re-examine and I ask that the witness be relieved.
PN260
PN261
THE COMMISSIONER: Yes. Who is next? Mr Douglas?
PN262
MR DOUGLAS: Thank you. The next witness is Mr Norman Davidson.
PN263
THE COMMISSIONER: Yes. Thank you. Mr Davidson.
PN264
THE COMMISSIONER: Yes, Mr Davidson. Could you just come around here and just step into witness box. Thanks. My associate is going to swear you in. He will ask you whether you want to swear an oath on the bible or whether you would like to make an affirmation. Whichever suits you.
PN265
THE COMMISSIONER: Sit down Mr Davidson. Just try and relax. Try not to be too tense about it all. It must seem a bit strange to you but just don't worry about it. Just do your best to tell the truth. Thanks?---Thank you, Mr Commissioner.
PN266
Thanks, Mr Douglas.
PN267
PN268
MR DOUGLAS: Mr Davidson, could you give the Commission your full name, address and occupation?---Yes. Mr Norman Keith Davidson. 12 Albion Street, Ballarat. I am employed as a labourer and carpenter and crane operator.
PN269
Mr Davidson, you have a statement in front of you there?---Yes.
PN270
Yes. You have read that statement?---Yes.
PN271
Are the contents of that statement true and correct?---Yes.
PN272
PN273
MR MADDISON: Can I ..... the witness for cross examination?
PN274
PN275
MR MADDISON: Mr Davidson, you say in your witness statement you were a shop steward for the BLF. Where was that?---I was working at St John of God's Hospital on a construction site there at the time.
PN276
Mr Davidson, you - in your statement you talk about an agreement with the union which you understand never got certified?---Yes, that is correct.
**** NORMAN KEITH DAVIDSON XXN MR MADDISON
PN277
But you understand that S.J. Weir were paying you the rates and conditions contained in that agreement?---Yes. That is correct.
PN278
You were at a meeting on 18 December 2003 where you were provided with a copy of a new agreement?---Yes.
PN279
And at that meeting were you provided with or informed where you could view a copy of the National Construction Industry Award?---Yes.
PN280
And what were you told about that?---We read through it and were told the basics of it.
PN281
THE COMMISSIONER: But what were you told with regard to the Award - the availability of the Award if anyone wanted to see it? Do you recall? The Award itself as opposed to the agreement?---We weren't really told much about the Award.
PN282
MR MADDISON: You weren't told where to get a copy of it or where you could have a look at it were you Mr Davidson?---Well, I already have a copy of those things at home.
PN283
But were you told at that meeting, Mr Davidson, about where you could get a copy of the Award or where you could view it?---No. There is always copies of those awards at our office which all the employees know.
PN284
Were you told at that meeting that you could go and view the award at the office or?---We weren't actually told at the meeting but we all know they are available.
PN285
THE COMMISSIONER: Thanks, Mr Davidson.
**** NORMAN KEITH DAVIDSON XXN MR MADDISON
PN286
MR MADDISON: Mr Davidson, at that meeting on 18 December do you recall Mr Maher raising an issue about Incolink and the insurances?---No, I don't.
PN287
Mr Davidson, you didn't have any input at the negotiation of the agreement that was put to you on 18 December were you?---No.
PN288
Mr Davidson, do you understand how the provision dealing with redundancy operates in the non union or the LK agreement?---Yes.
PN289
Could you explain to the Commission how it operates?---Instead of payment getting paid into the redundancy we can have it paid into our superannuation or get paid a flat rate into our pay each week.
PN290
That is your understanding of the clause?---I beg your pardon.
PN291
That is your understanding of the clause Mr Davidson?---Yes, I understand that.
PN292
At that meeting on the 18th the agreement was not - not every clause to the agreement was explained to the employees was it?---It was explained to the employees. Yes.
PN293
Every single clause to the agreement?---As ..... the clause.
PN294
Sorry, Mr Davidson? I didn't hear your response?---It was - - -
PN295
THE COMMISSIONER: Just ask your question again. Sorry, Mr Maddison.
**** NORMAN KEITH DAVIDSON XXN MR MADDISON
PN296
MR MADDISON: Not every clause of the agreement was explained was it Mr Davidson?---Not every clause was explained only the basics.
PN297
THE COMMISSIONER: Who did the explaining Mr Davidson?---Daryl Elford explained the basics of the agreement to us.
PN298
Right. And what did Mr Laverick do?---After Daryl had explained the basics to us there were a few questions asked by employees and Daryl and John both answered those questions.
PN299
Yes, thanks.
PN300
MR MADDISON: You were in a meeting that Mr Broomhall addressed on 13 January 2004?---Yes, I was. Yes.
PN301
And at that meeting there wasn't any further detailed explanation of the agreement?---No, there wasn't.
PN302
THE COMMISSIONER: And what was your understanding of the voting process Mr Davidson?---I believed we would all vote on the agreement.
PN303
And how was that to happen? How did it happen?---They were all given a voting slip.
PN304
Yes?---And we all filled those in at home that night or whenever and put them into an envelope and returned them to the office.
PN305
And when did that happen? Did that happen on the 14th or the 13th of January?---The 14th I think.
**** NORMAN KEITH DAVIDSON XXN MR MADDISON
PN306
Yes. All right. Okay. Thanks.
PN307
MR MADDISON: At the meeting on 18 December 2003 when you were first provided with the agreement were you informed that the ballot or the vote would be a secret ballot?---Yes, we were.
PN308
Thank you, Mr Davidson. No further questions, Commissioner.
PN309
THE COMMISSIONER: Anything in follow up?
PN310
PN311
MR DOUGLAS: When you said on 18 December there wasn't an explanation of each and every clause in the agreement there was an explanation as to where it differed from the past LJ agreement wasn't there?---Yes, there was.
PN312
In the meeting of 13 January my friend Mr Maddison said there wasn't a further detailed explanation given as to what was in the agreement. Mr Broomhall didn't provide a detailed explanation did he?---No, he did not.
PN313
He didn't provide any explanation at all did he?---No.
PN314
No further questions.
PN315
THE COMMISSIONER: No. Mr Maddison, nothing in follow up to that?
**** NORMAN KEITH DAVIDSON RXN MR DOUGLAS
PN316
PN317
MR MADDISON: When you say that there was an explanation of where it differed from the union pattern agreement were you provided with a copy of that agreement on that day?---We weren't provided with one on that day but I have seen that agreement beforehand.
PN318
Thank you, Mr Davidson.
PN319
PN320
THE COMMISSIONER: Yes, Mr Douglas?
PN321
MR DOUGLAS: One more witness. Mr Perry Zoelfel.
PN322
THE COMMISSIONER: Yes. Yes, thanks. Just while Mr Zoelfel is being called I can see quite clearly Mr Maddison we are certainly not going to get to the presentation of your case this afternoon. But I now have a clear picture of the situation so I think I can see I am certainly going to need to set another day, another time for hearing of this so I will be interested in your assessment of how much time we will actually need.
PN323
MR MADDISON: Can I just confer with Mr Douglas briefly?
PN324
THE COMMISSIONER: Yes. Yes.
PN325
MR MADDISON: Mr Douglas indicates there is only about half an hour. I have a little bit due to the four witness statements received today, there is some extra evidence in chief that I will be seeking to - matters to put to my two witnesses.
PN326
THE COMMISSIONER: Yes.
PN327
MR MADDISON: And I suppose to make estimations of these things - - -
PN328
THE COMMISSIONER: Yes, well, I can see it is going to take a couple more hours at least.
PN329
MR DOUGLAS: Yes, about half a day I would have thought with submissions.
PN330
THE COMMISSIONER: Yes. Yes, all right. Okay, fine, yes, thanks very much for that.
PN331
MR MADDISON: That is probably a - - -
PN332
MR DOUGLAS: And what I - sorry, what I might suggest, Mr Commissioner, is if there is any issues that my friend wishes to raise for re-calling of witnesses, or upon the review of the transcript if there is matters, I would just like the leave of the court to be doing that. I thought we may be able to conclude it today and clearly I was wrong.
PN333
PN334
MR DOUGLAS: Mr Zoelfel, can you give the court your full name, your address, and your occupation?---My name is Perry Joseph Zoelfel. My address is 3 Forrest Court, Templestowe, and I am a director of Frontline Human Resources.
PN335
You have a statement before you today, Mr Zoelfel; have you had an opportunity to read that?---I have.
PN336
Are the contents of that statement true and correct?---Yes.
PN337
I tender that.
PN338
PN339
MR DOUGLAS: I have no further questions.
PN340
PN341
MR MADDISON: Thank you, Commissioner. Mr Zoelfel, do you have any legal qualifications?---No, I don't.
PN342
But you have dealt with certifications of agreements, I take it, on a number of occasions?---Correct, yes.
**** PERRY JOSEPH ZOELFEL XXN MR MADDISON
PN343
And you would say you are pretty familiar with those provisions of the Workplace Relations Act?---Reasonably so, yes.
PN344
You say in your statement here that as the agreement had not been certified in 21 days it was lapsed and no longer valid; do you see where you say that in paragraph 3?---I do say that, yes.
PN345
Were you aware, Mr Zoelfel, that 21 days is actually from - it needs to be lodged in the Commission 21 days after agreement is reached?---Correct.
PN346
And are you also aware, Mr Zoelfel, that you are able to seek an extension of time for lodging that agreement?---I am aware you can do that, yes.
PN347
Did you advise S.J. Were that that was other options open to them?---No, I didn't because the period of time was roughly 12 months.
PN348
Did you advise them that they could seek to have an agreement certified in the same terms again?---I said to them there was a number of options open to them and they were to discuss the issues and they decided they wanted to proceed with an LK agreement.
PN349
But you did advise them that that was another possibility?---I said there were possibilities, yes.
PN350
Yes, thank you, Mr Zoelfel. I have no further questions of this witness, Commissioner.
PN351
THE COMMISSIONER: No, Mr Douglas, nothing further?
**** PERRY JOSEPH ZOELFEL XXN MR MADDISON
PN352
MR DOUGLAS: No, I have no questions.
PN353
PN354
THE COMMISSIONER: Good.
PN355
MR DOUGLAS: That is the conclusion of my case.
PN356
THE COMMISSIONER: That is right.
PN357
MR DOUGLAS: But I wouldn't like to close it given my comments earlier in case there is other matters arise.
PN358
THE COMMISSIONER: Yes.
PN359
MR DOUGLAS: If we are going to go into another day I would like to have the benefit of being able to call someone if there is a problem or a hole there.
PN360
THE COMMISSIONER: Yes, indeed, I am happy to allow that. What further would you like to do this afternoon, Mr Douglas?
PN361
MR DOUGLAS: Commissioner, I thought it may be helpful were we to have a without prejudice conference between yourself, myself and Mr Maddison just to talk about where we are going. I think there is room for movement on some legal issues and we may be able to define what really is the scope of the dispute, but if that is - - -
PN362
THE COMMISSIONER: I am just concerned about raising problems about my ability to go on dealing with the matter.
PN363
MR DOUGLAS: All right, I am happy to step back from it.
PN364
THE COMMISSIONER: However what I will say is that I think there is ample scope for the company and the union to discuss where this matter goes, and I urge the parties to take the opportunity of the adjournment to consider their position and to have those discussions. But I don't want to complicate matters by my being drawn into off the record discussions at this stage when we are well advanced with hearing the matter. It is complex and it raises very serious issues. Can I just ask, Mr Maddison, is it likely that you are going to call Mr Fisher? I know it is a curious course of action but I just - - -
PN365
MR MADDISON: I certainly - - -
PN366
THE COMMISSIONER: - - - I just wondered whether it was likely you might be going to.
PN367
MR MADDISON: I certainly had considered it, Commissioner, I think on what has come out today, and from my instructions from Mr Wainwright and Mr Broomhall, that it appears that - and I can provide, and I will before we finish today, Mr Broomhall's statement, but certainly the agreement was signed and all the statutory declarations were completed and - - -
PN368
THE COMMISSIONER: I think there is no dispute of that, Mr Douglas, the evidence is clear.
PN369
MR MADDISON: Yes.
PN370
MR DOUGLAS: No, no, and my submissions are clear about that too.
PN371
THE COMMISSIONER: Yes, yes.
PN372
MR MADDISON: And I don't think there has been any fault that has been apportioned to anybody other than the - so I don't - - -
PN373
THE COMMISSIONER: I am not interested in fault. What I know for a fact, what Mr Douglas must know, and what you know for a fact is that I deal, and other Commissioners and Presidential members deal day in and day out, with applications for late lodgment of LJ and LK agreements - - -
PN374
MR MADDISON: Yes.
PN375
THE COMMISSIONER: - - - and that far more often than not the Commission grants applications - grants requests for late lodgment, though it is concern to know whether they are matters such as whether there has been late - any change in the composition of the workforce and the like. And I note that at the time that Mr Elford became aware of the problem, which was not of his making, the agreement would have only been about five months out of time as opposed to being 12 months or 14 months out of time. In any event, how would you like to proceed from today, Mr Maddison?
PN376
MR MADDISON: Well, we have two witnesses.
PN377
THE COMMISSIONER: Yes.
PN378
MR MADDISON: It would certainly - I mean, the witnesses are here - - -
PN379
THE COMMISSIONER: Yes.
PN380
MR MADDISON: - - - but I suppose that is a matter for you about continuing on today. I suppose my preference certainly would be, given that there has been additional evidence that has come out of the witnesses and some that involved Mr Broomhall, that I would be seeking to get further instructions about some of those matters, noting that he hasn't been in the court while that evidence has been given.
PN381
THE COMMISSIONER: Yes.
PN382
MR MADDISON: So in any event I would be seeking at least a short adjournment. Noting the time and how many witnesses have already been through, I would have thought that, notwithstanding the fact that it is inconvenient for the parties to have to come back, that that is probably the most sensible course.
PN383
THE COMMISSIONER: Yes, all right. In any event, I would arrange for the transcript to be made available to the parties which will assist in further submissions. I think - excuse me.
PN384
MR MADDISON: Commissioner, I just - - -
PN385
THE COMMISSIONER: Yes.
PN386
THE COMMISSIONER: - - - sorry, it may be the other - depending on your availability, and Mr Douglas is happy for the matter to proceed on this basis, if the matter can come back on quicker if we do the evidence which may take a couple hours and then further written submissions done - written rather than oral submissions straight after the presentation of - or straight after the evidentiary matters, noting that there are already some quite lengthy written submissions been filed by both parties that that may be, given what you have indicated about your heavily booked timetable, if that is an easy way of dealing with it, or a more quicker way of dealing with it.
PN387
THE COMMISSIONER: Yes, thanks.
PN388
MR DOUGLAS: The other thing, Mr Commissioner, is that I am in Melbourne more often than I am not because of doing industrial relations work, so if you want to fit in one witness one evening and one witness another evening, I will do whatever it needs to accommodate it to speed the matter up. I am only saying that because I am available, if that helps.
PN389
THE COMMISSIONER: Yes, sure. Sure. It is just that you think it is going to take a half a day all up.
PN390
MR DOUGLAS: I said half a day if it involves submissions. I would have thought - - -
PN391
THE COMMISSIONER: But if we heard evidence - if I heard further witnesses and then allowed written submissions - - -
PN392
MR DOUGLAS: It would only take an hour, to be honest.
PN393
THE COMMISSIONER: Yes.
PN394
MR DOUGLAS: And I think if - I know, I should never - - -
PN395
THE COMMISSIONER: Well, I might be able to find that hour next week, if that is - perhaps if - I think what I should do is adjourn at this stage and perhaps, Mr Douglas, if you and Mr Maddison could come down with Ben to my chambers afterwards and we will just focus on some times that might be available next week so that I could hear Mr Maddison's witnesses and then we could then deal with the matter further by way of written submissions. Are you happy with that, Mr Maddison?
PN396
MR MADDISON: I am certainly content on the matter proceeding on that basis.
PN397
THE COMMISSIONER: Yes, all right. Okay, all right.
PN398
MR MADDISON: Commissioner, may I also just before you adjourn, sorry - - -
PN399
THE COMMISSIONER: Yes.
PN400
MR MADDISON: - - - it may be convenient to provide two witness statements, the statement of Mark Broomhall and Peter Maher, as well as our - - -
PN401
PN402
MR MADDISON: Yes, and I do also have a folder of authorities that I have also provided to my friend.
PN403
THE COMMISSIONER: Yes, all right, okay, fine, well I don't need to mark those, well, they can come now. Good. Anything further at this stage, Mr Douglas, Mr Maddison?
PN404
MR MADDISON: No, thank you, Commissioner.
PN405
THE COMMISSIONER: No. Yes, I adjourn, the transcript will be ordered and you will discuss with my associate my availability next week to hear the union's evidence. Thank you very much, I now adjourn.
ADJOURNED INDEFINITELY [4.31pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
DARYL WILLIAM ELFORD, SWORN PN65
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN65
EXHIBIT #A1 SUBMISSIONS ON SECTION 3 FACTORS PN68
EXHIBIT #A2 CHRONOLOGY PN70
EXHIBIT #A3 WITNESS STATEMENT OF DARYL WILLIAM ELFORD PN80
CROSS-EXAMINATION BY MR MADDISON PN110
WITNESS WITHDREW PN219
JOHN EDWIN LAVERICK, SWORN PN225
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN225
EXHIBIT #A4 WITNESS STATEMENT OF JOHN LAVERICK PN230
CROSS-EXAMINATION BY MR MADDISON PN232
WITNESS WITHDREW PN261
NORMAN KEITH DAVIDSON, AFFIRMED PN265
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN268
EXHIBIT #A5 WITNESS STATEMENT FROM MR DAVIDSON PN273
CROSS-EXAMINATION BY MR MADDISON PN275
RE-EXAMINATION BY MR DOUGLAS PN311
FURTHER CROSS-EXAMINATION BY MR MADDISON PN317
WITNESS WITHDREW PN320
PERRY JOSEPH ZOELFEL, SWORN PN334
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN334
EXHIBIT #A6 WITNESS STATEMENT OF PERRY JOSEPH ZOELFEL PN339
CROSS-EXAMINATION BY MR MADDISON PN341
WITNESS WITHDREW PN354
EXHIBIT #U1 MR MADDISON'S SUBMISSION PN402
EXHIBIT #U2 WITNESS STATEMENT BY MARK BROOMHALL PN402
EXHIBIT #WITNESS STATEMENT BY MR MAHER PN402
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