BP2005/38, Transcript of Proceedings [2005] AIRCTrans 2257 (28 October 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13216-1

SENIOR DEPUTY PRESIDENT MARSH

BP2005/38

THE AUSTRALIAN WORKERS’ UNION
AND
BOEING AUSTRALIA LIMITED
s.170MI - Notice of initiation of bargaining period
(BP2005/38)

SYDNEY

10.00AM, TUESDAY, 18 OCTOBER 2005

Continued from 16/9/2005

Hearing continuing

PN114

MS C HOWELL: I appear for the AWU; with me, MR B SWAN.

PN115

MR H J DIXON: I appear for the respondent.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Howell?

PN117

MS HOWELL: Thank you, your Honour. The matter is listed today for the hearing of an application by the AWU for a direction by the Commission under section 170NA, in a form sought in the application which is in a form of three orders; the first being for a ballot of employees. Does your Honour have the document containing the - - -

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, I have a copy in front of me.

PN119

MS HOWELL: Yes. The second being an order with respect to communication to the relevant group of employees, and the third being an order with respect to the provision of information to employees about the issues giving rise to the ballot. Your Honour, the second and third orders are obviously subsidiary and ancillary to the first order which is the direction for a ballot of relevant employees. Your Honour would be well-aware of the background to this application, having conciliated the matter on at least a couple of occasions.

PN120

Your Honour, there's been no significant change in the factual situation since the last time the matter was before the Commission, and that is, a number of employees of Boeing employed at Williamtown are on strike, are taking protected action, in support of their claims for a collective agreement. Your Honour, on the last occasion we explained that from the AWU's point of view, it would be regarded as useful to the parties and to the Commission to have a clear indication with respect to the group of members about whom the AWU seeks to make an agreement, as to whether those employees would prefer to have a collective agreement rather than individual contracts.

PN121

THE SENIOR DEPUTY PRESIDENT: Now, if I can just interrupt you. You referred to a group of members with whom the AWU wishes to make a agreement. Can you define for me who the AWU intends to be covered by the ballot, or participate in the ballot? Because there's some evidence, I think, of
Mr Best, going to the scope of the ballot and I just want to be absolutely sure of that at the outset so I can view it in perspective. Is it with respect to the AWU members or is it - - -

PN122

MS HOWELL: No, your Honour.

PN123

THE SENIOR DEPUTY PRESIDENT: - - - with respect to the group of employees?

PN124

MS HOWELL: It's with respect to the employees who would be covered by the agreement which the AWU seeks, and if I said members, that was a slip of the tongue.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes, and just really want to clarify that, because I was unsure whether that was the scope or whether it was a wider scope.

PN126

MS HOWELL: No, your Honour. It's with respect to the - I think they're described in Mr Best's affidavit as the operations capability group, which is about 70-odd employees and that's - - -

PN127

THE SENIOR DEPUTY PRESIDENT: Of whom a number are on strike and are AWU members?

PN128

MS HOWELL: That's so, your Honour, that's so. And that's the group in respect of whom the AWU has been seeking to make a certified agreement.

PN129

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

PN130

MS HOWELL: Your Honour, the reason the AWU believes that this step would be useful, I did give an indication on the last occasion, we do think that there is a lack of reliable information on this question and certainly the AWU's case is that Boeing has given every indication that it holds incorrect views as to the true position with respect to the views of its employees, and further, that no steps have been taken by the company to ascertain whether views expressed by it are correct or not. We think that both parties and the Commission could benefit from knowing the true position.

PN131

We think that any responsible industrial party would take whatever information did emerge from such a process and factor it into their considerations and their determination of the position they would take on the relevant issues. And certainly it would facilitate further conciliation based on reliable information and of course, that would facilitate the objects of the Act, in that it would facilitate the ability of employers and employees being able to pursue the type of industrial regime which they prefer. So, your Honour, the parties have put on submissions and evidence.

PN132

We would say of the respondent's evidence that it is overwhelmingly self-serving assertions after the fact as to their now position when faced with something which potentially disclose the views of its employees, but your Honour, that's really a matter for final submissions. I don't wish to add anything at this stage, beyond what's in the written submissions. Can I just ask if your Honour has the outline in reply?

PN133

THE SENIOR DEPUTY PRESIDENT: Yes. I received that late yesterday. Yes.

PN134

MS HOWELL: Thank you, your Honour. I apologise for the fact that that was late.

PN135

THE SENIOR DEPUTY PRESIDENT: That's all right. It's useful, thank you.

PN136

MS HOWELL: Your Honour, unless there's anything further, I'd call Mr Swan.

<BENJAMIN CHARLES SWAN, SWORN [10.08AM]

PN137

MS HOWELL: Your Honour, before I take evidence from Mr Swan, I understand there are some of the respondent's witnesses in the room. I'd ask that they not be present during cross-examination.

PN138

THE SENIOR DEPUTY PRESIDENT: Mr Dixon, your view on that?

PN139

MR DIXON: Your Honour, that's a surprising submission, in my respectful submission, in the context of this case where the parties have disclosed their statement material in advance. One of our witnesses is a witness who is an independent expert witness and material that he has put before the Commission may obviously be relevant to any views you may or may not form to be properly informed of the issues. In respect of Mr Best he is the person from the company who is not here at the moment, so it doesn't affect him. I am mistaken, I beg your pardon, but they should not be excluded if they do come in, in my submission.

PN140

THE SENIOR DEPUTY PRESIDENT: There's no witnesses in the court?

PN141

MR DIXON: We don't have any witnesses present at the moment.

PN142

THE SENIOR DEPUTY PRESIDENT: All right. We'll just proceed then.

PN143

MR DIXON: I misunderstood the position.

PN144

MS HOWELL: In that case, we can postpone the argument, thank you, your Honour.

<EXAMINATION-IN-CHIEF BY MS HOWELL [10.09AM]

PN145

MS HOWELL: Mr Swan, could you please state your full name and address?
---Yes. Benjamin Charles Swan (address supplied).

PN146

Mr Swan, can you state your occupation, please?---National industrial officer with the Australian Workers Union.

PN147

Thank you. For the purpose of these proceedings, Mr Swan, have you prepared a witness statement?---Yes.

PN148

Do you have a copy with you in the witness box?---Yes, I do.

PN149

That's a statement signed by you on 26 September 2005?---I don't think I've actually signed the copy that I provided, so I'll probably have to do that and make some necessary changes to the reference to the date on which it's signed.

PN150

I see. Well, don't worry about signing it, Mr Swan. That's a 15-paragraph statement, with some 11 attachments?---15 paragraphs, yes, 11 annexures.

PN151

Are the contents of that statement true and correct to the best of your knowledge and belief?---Yes, they are.

PN152

Yes. Nothing further, thank you.

PN153

THE SENIOR DEPUTY PRESIDENT: Is that being tendered, that witness statement?

PN154

MS HOWELL: No, your Honour, I tender the statement of Mr Swan.

PN155

MR DIXON: There are a couple of objections. Your Honour will no doubt deal with them on the basis of the wide powers that the Commission has to admit evidence. Paragraph 6, it's clearly simply opinion evidence so we object. Paragraph 9 raises contents of discussion in the conciliation process and it is our understanding that usually proceedings in conciliation are to be treated in confidence. On top of that, the witness purports to place his own interpretation on what occurred at that conference on 27 May.

PN156

In paragraph 11, you will note that Mr Swan attaches correspondence between persons who have no relevance to the present proceedings at all, and then proceeds to speculate about where those persons may have obtained information from. It's entirely unhelpful, unreliable and ought not to be admitted. Those are our objections, your Honour.

**** BENJAMIN CHARLES SWAN XN MS HOWELL
PN157

THE SENIOR DEPUTY PRESIDENT: Ms Howell?

PN158

MS HOWELL: Your Honour, the evidence of both parties contains an amount of opinion. In fact, we would say the respondent's evidence consists largely of opinion evidence. We had assumed that the Commission would proceed on the usual basis, that the Commission will admit that evidence and give it such weight as the Commission thinks appropriate. With respect to the paragraph 9, of course as a general proposition what Mr Dixon said would be true, but there are a number of exceptions to the proposition that material put in conciliation is not admissible. If your Honour is troubled by that, I'd like to refer the Commission to some authorities would show that in the present case the Commission would not be troubled by the admission of that material.

PN159

In any event, of course the Commission is not bound by the rules of evidence and it's a matter for your Honour's discretion whether paragraph 9 would be admitted or not. With respect to paragraph 11, your Honour, it's certainly part of the AWU's case that information provided or emanating from the respondent is responsible for misunderstandings within the community at large, including members of national parliament. Your Honour, the respondent has gone to a deal of trouble to talk about the difficulties and misunderstandings that might arise should there be a ballot.

PN160

We reject that evidence, but we do say, your Honour, that questions of misunderstanding are certainly relevant to the proceedings, particularly where it would appear, and there is an inference open, that that information has emanated directly from the respondent. So we say, again, it's a matter which your Honour would admit and would give the weight that your Honour considers appropriate. If it please the Commission.

PN161

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, I'll admit paragraph 6 and give it appropriate weight; similarly with paragraph 11. I certainly note what Mr Dixon said about it being speculative and unreliable and it will be weighted accordingly at the end of the day and I propose not to admit - strike out paragraph 9 for the reasons that it does rely on material put in conference and conciliation, and notwithstanding the submission of Ms Howell, I'm not prepared to exercise my discretion with respect to admitting that paragraph.

PN162

MS HOWELL: May it please the Commission.

EXHIBIT #AW1 STATEMENT OF BENJAMIN CHARLES SWAN

**** BENJAMIN CHARLES SWAN XN MS HOWELL
PN163

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dixon?

<CROSS-EXAMINATION BY MR DIXON [10.16AM]

PN164

MR DIXON: Mr Swan, have you had dealings with this dispute since the AWU served a bargaining notice in March 2005?---Yes, since. My employment is post the serving of the notice to initiation of - to bargain. I think that was effectively undertaken by my predecessor, Mary Lambert, but to all intents and purposes, yes.

PN165

Well, I think you say that you've been employed in a position of AWU since February 2005, but I think the bargaining notice was served in March?---It's 4 March, but during that period of time, I wasn't actually in charge of the industry, but I am now, so there was a bit of a transitional - - -

PN166

So prior to some time in March of this year, you had no dealings with this company at all?---No.

PN167

You were, immediately prior to taking up your position with the AWU, employed as a senior policy advisor with the Department of Premier and Cabinet in Queensland?---I had been, that's right. That was my - the last position that I had prior to taking up this position.

PN168

And how long were you in that position?---Only for a matter of four months, thereabouts.

PN169

And prior to that?---Prior to that I was an industrial advocate with the AWU, Queensland. Yes.

PN170

And in that capacity, you had no involvement with Boeing or its employees at the three sites?---No.

PN171

But since March, you have become familiar with the various industrial action and other steps taken by the AWU in respect of its pursuit of a certified agreement?
---Yes, I have.

PN172

Following the issuing of a bargaining notice in March, the AWU has pursued the making of a certified agreement under the Workplace Relations Act?---Yes, it has.

PN173

And it has availed itself on various occasions, of the means provided by that Act, for various forms of industrial action?---Yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN174

It has given notice on each occasion, by which it seeks to attract the protections under that Act for the industrial action?---Correct.

PN175

By that means, it has been seeking to apply pressure and force Boeing to agree to make a certified agreement?---Correct.

PN176

The first of the industrial action I think was notified in April? Do you recall that?
---Quite - quite possibly. Look, I think from memory, Mr Dixon, without looking at my files on it, there were a number of - at least two or three notices of intended action around about April through until May that dealt with stop work meetings.

PN177

Yes. Without going to the notices, because I'm just trying to get a bit of chronology in context, attached to your statement you've got BCS1, which I think you have called a timeline?---Yes.

PN178

You'll see that you mention in that timeline that very shortly after the initiation of the bargaining period on 4 March, the matter came before her Honour by way of conciliation on 8 March?---Yes.

PN179

Then shortly after that, Boeing formally responded to what its position was in respect of the proposed agreement by way of a letter of 22 March?---Yes.

PN180

Shortly thereafter, the matter came back before her Honour on 6 April. Were you involved in that?---Yes, I was.

PN181

Yes. Then you will see you give an indication that there was some industrial action by way of a stop work meeting on 21 April?---Yes.

PN182

I think that was preceded by a notice - - -?---Yes.

PN183

- - - and so I'm suggesting to you that that was really the first industrial action of a formal kind which was instigated and organised by the AWU?---That - that would appear to be correct, yes.

PN184

Yes. Now, you're aware also, are you not, that in April and May, Boeing organised focus group discussions with members of its workforce from the three sites - - -?---Yes, I am.

PN185

- - - to discuss their terms and conditions?---Yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN186

Yes. There was such a focus group meeting, I think it was 26 April, you were aware of that?---Look, I know there were. If you're putting it to me that it was on the 26th, I'll agree with that, without the benefit of seeing any of the documentation.

PN187

All I'm trying to establish from your point of view is that you became aware, and we can take it that towards the end of April, you became aware that the focus group meetings were taking place?---Yes, correct.

PN188

And that the discussions were taking place with the employees to discuss with them any issues they had about their terms and conditions of employment?
---That's right, yes.

PN189

Were you aware that there were then follow-up discussions after the first focus group meeting at the end of April?---Yes.

PN190

Yes. I think there was another meeting where the focus groups met on about 16 May. Now, you might not be aware of the particular date - - -?---Sure.

PN191

- - - but can you confirm for the Commission that by about mid-May you were aware of a further focus group follow-up meeting which further developed the discussion which took place in April?---I'll agree with that, yes.

PN192

Then your recollection is that shortly after that, there was a further conciliation conference in the Commission on the 27th?---Yes.

PN193

You were also aware, were you not, Mr Swan, that fairly shortly after the conciliation conference before the Commission on 27 May, Boeing gave a presentation to its workforce, explaining to them that there was going to be a revised offer by which it was going to make some alterations to the terms and conditions of employment?---I'm not aware that there was a presentation as such that - I don't know.

PN194

But you were aware that Boeing, early in June, announced that it was going to provide a new offer to employees with altered terms and conditions of employment?---Yes.

PN195

In early June, you were aware that that would entail using the same mechanism that Boeing had utilised since it started work there for the last five years, of offering employees to sign a new contract of employment?---Yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN196

The new contract of employment was going to, amongst other things, increase the wages package that had been paid up to that date?---Possibly, I don't - I wasn't privy to the detail that was presented to individuals.

PN197

But you were aware that it was an improved offer on existing terms and conditions?---It's a matter of context. I'd say there were probably some outcomes of that, that were worse for employees rather than better. In terms of money, there might have been some increases; if you look at things like the overtime provisions, I doubt it very much.

PN198

All right. Mr Swan, as a result, the AWU steadfastly urged its members to reject the offers that Boeing was making at that time?---I think it's - look, I'd say we certainly had a position that it wasn't a particularly good outcome. I mean, we also, you know, consult with our members - - -

PN199

Sorry to interrupt, but could you stick with the question?---Yes.

PN200

The question was - - -?---I'll give the answer to the question that you've asked. I know the question that you've asked, but - - -

PN201

Well, would you answer it, please?---Yes - well, the point I'm making is that, yes, the union has a position of itself, but it's also - it also has a responsibility to adopt the position that its members instruct it to adopt. So you sort of wear two hats at the same time. It just so happens that in the circumstances of this case, and at that particular point in time, members of the union who had been approached with that final offer were not happy with it, and nor was the union as an organisation.

PN202

As a result, the union urged employees at Williamtown in particular to reject Boeing's offer which it was making to employees at the beginning of June?
---Well, we would have urged our members not to sign it. I'm not sure whether it was employees at large. I can't recall that we did that, but certainly with regard to our members, if they had received any revised offers, then our advice was not to sign it, but it was - doesn't - I mean, you can't desegregate, you know, the offering of advice and the sort of feedback that you get from employees and - with the packages. They tend to coalesce into the one - the one sort of process, particularly when you're engaging with your members on a very frequent basis, as I had been doing.

PN203

The formal position with the AWU was publishing at the workplace at Williamtown, for example, was that all employees should reject Boeing's offer of further common law contracts?---Look, we might well have. I mean, I've
been - - -

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN204

MS HOWELL: I object. This has been pursued in several questions. If Mr Dixon wants to pursue it, he should put a relevant document so that the witness can fairly answer the question.

PN205

MR DIXON: Your Honour, my learned friend is quite out of order in trying to suggest to me how I cross-examine the witness. I am not obliged to put any documents to the witness. I intend to show the witness some documents, but I'm trying to establish what his knowledge of the AWU's position was.

PN206

MS HOWELL: Your Honour, with respect, I'm not out of order. The witness has said he's not sure of exactly what was put out. In those circumstances, fairness requires that documents be put to the witness.

PN207

THE COMMISSIONER: If Mr Swan's not aware of something, he's entitled to say he's not aware of something. You proceed, Mr Dixon.

PN208

MR DIXON: Thank you, your Honour?---I simply - look, to be honest,
Mr Dixon, we're now into effectively seven months of this whole process. I've had an almost day-to-day involvement in it, and in the context of everything that has transpired over the course of that period of time, I simply can't pinpoint what I may have done or what the union may have done some six or five months ago. I certainly have been the author of a number of documents, some of which you are probably going to refer to me, and it may well be that there was a notice that I constructed and advised all employees not to accept the new offer. I - I simply can't recall. I have way too much material in my office to be able to remember, particularly with regard to this dispute.

PN209

MR DIXON: I see?---But I'm happy to comment on matters that you wish to put to me, I'm happy to comment on them, and I can confirm whether I constructed the documentation or not.

PN210

So you have no recollection of what the AWU's formal position was - - -?---No.

PN211

- - - in June of 2005 - - -?---No.

PN212

- - - as to whether it opposed - - -?---No, I told you. I - Mr Dixon, I did tell you that the union had a position of opposition. I made that clear. So that's the - - -

PN213

That's all I was trying to establish at that point, Mr Swan?---Well, I told you that five questions ago.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN214

Thank you. That position was that employees at Williamtown should reject Boeing's offer of new contracts and should vote for a collective union
agreement - - -?---Yes, Mr Dixon, again, as to whether I - look, I'm not going to get drawn on a semantic sort of exercise about what constitutes the employees. I recall advising our members of that. I recall very clearly that we had that position and I recall the reaction that our members had to that. As to whether I put material out that applied to all employees, whether union members or not, I can't recall, but if you've got that documentation, I'd be happy to confirm whether I constructed it, whether I disseminated it. I - I simply - in the context of all of this, I just - I'm not trying to be evasive, I just can't recall the nature of what I may have put out at a particular point in time.

PN215

Mr Swan, just to get it clear, I'll ask you in a moment about what you put out. You've just told the Commission that you advised the members of the AWU employed in Williamtown - and I just want to clarify what your advice was - that they should reject Boeing's offer of further common law contracts and vote for a collective union agreement?---Exactly.

PN216

And that was after Boeing had made the offers of new contracts of employment at the beginning of June 2005?---Yes.

PN217

What I am wanting to suggest to you also - and I'll give you an opportunity to respond obviously - is that you also produced information for distribution at the Williamtown site, at least, to similar effect. Do you have any recollection - - -?
---Quite possibly, yes, yes. Produced quite a lot of information for dissemination.

PN218

Your Honour, I'm going to ask Mr Swan to refer to - I have a separate copy, but it is in Mr Best's material at PGB6, the second document.

PN219

I don't think you have that with you - - -?---I have a copy.

PN220

I have a separate page of that. I'll show you this one, Mr Swan?---Sure. Thank you. Yes.

PN221

Do you recognise the document I have shown you?---Yes. Yes, I do.

PN222

Is that one that you produced?---Yes, it is.

PN223

Yes. This was a document that was produced for distribution at the Williamtown site?---Yes, it was.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN224

As far as you are aware, it was widely-distributed?---I have no idea who obtained copies of it. I distributed it to the organisers and they look after it from there,
so - - -

PN225

And the instruction to the organisers was to distribute this across the site to as many people as possible?---Absolutely, yes. But as to who it reached, I don't know.

PN226

Part of the purpose of this document was to extol the virtues of the certified agreement against the unsatisfactory elements of what are described as common law contracts?---That's right.

PN227

You will see that it refers in the second-last paragraph to the focus group discussions undertaken. I think that confirms your earlier evidence that - well, perhaps not. That was the AWU's position, that it was critical of the approach of the company adopting discussions through a focus group?---That's right.

PN228

Also, in the last paragraph, you urge everyone who received this to reject Boeing's offer of further common law contracts and vote for a collective union agreement?
---Yes, yes.

PN229

In the present application - sorry. Part of the exercise that is carried out in this document is to highlight for members and others on the site who received this what the deficiencies are of the common law contract system which you say operates at, at least Williamtown?---Yes.

PN230

Did this document, do you know, circulate other than at Williamtown?---I don't know. I - I do know that as a matter of practice, and I think because - because we had initiated a bargaining period with regard to Amberley by, I think, in April, I think from memory this document was constructed during April. I mean, I'd have to check on that, but it was certainly before the end of the focus group process. I - had - I had a practice, still persist with it, of informing officials that are involved with Boeing in other states, other sites, so this material quite possibly was sent onto the Queensland branch.

PN231

Mr Swan, just on your recollection of the dates, I know it's difficult, but you see in the last paragraph it refers to further common law contracts, and you also refer to the focus groups, so I suggest to you that this document was probably produced later in the piece. It was after the focus groups and also after - - -?---No. No - - -

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN232

- - - the contracts were being offered?---No, it wasn't. I remember at the time I was actually - at precisely the time I was doing this is when I was travelling over to Perth and I did it on the plane. Look, I'm more than happy to get the actual date that it was - - -

PN233

You think it was towards the end of April?---Well, it was certainly before the end of the - the end of the focus group process.

PN234

Okay?---We knew - I mean, we obviously knew from discussions with the company through at least one of the conciliation processes that the intention was to offer - you know, to revise, to look at revising common law contracts with a view, obviously, to putting that out to the workforce.

PN235

Right. Now, you're aware of what the application is in the present - - -?---Sorry, can I - just in answer to that, just to give some further elaboration on that, I actually believe that I also handed this to the Commission and to Mr Williams on 27 May in these proceedings. I think that was the first occasion that Mr Williams had certainly seen it, because there was certain commentary about various things in it. So that - that was certainly before the conclusion of the focus group process, or at least the offer of further contracts in June.

PN236

Yes, and the second focus group meeting was on 16 May?---Yes, the second - that's right, but the process hadn't actually concluded, I don't think.

PN237

But it was your clear understanding, when this document went out, was that it was Boeing's intention to make revised offers - - -?---That's what we understood.

PN238

Yes?---Yes.

PN239

Now, thank you for clarifying that, Mr Swan. Now, coming back to my earlier question, you are aware of what the union seeks in the present application to the Commission?---Absolutely.

PN240

Yes, and part of the application is to allow, I think it was called, equal time or equal opportunity for the parties to address the workforce?---Yes.

PN241

Can the Commission take it that it's the AWU's intention to use such an opportunity, if it were to be granted, to elaborate on and explain the sort of matters that appear in the document headed, "Certified Agreement versus Common Law Contracts"?---Broadly, yes. Definitely. I mean, the object would be to explain, in a - you know, in a structured way, what we perceive the benefits of certified agreements are. Similarly, the company would have the opportunity to explain what it sees are the benefits of its TRP model. And not just to the people that are still working on site, but to all employees including those who are on strike.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN242

Now, are you familiar with the terms of the Metal Trades Metal Industry Award?
---Look, I wouldn't say I'm intimately familiar with them, no. I'm familiar with how awards are structured and what they are designed to do and the scopes and incidents and so forth, yes.

PN243

You would recognise that there's a dispute settlement procedure in that award?
---Yes.

PN244

Yes, and you recognise, do you not, that employees employed at Williamtown in the categories for which the AWU is seeking certified agreement, have access to that dispute settlement procedure?---Well, that's - again, this is something that has been raised. I don't think it's - and I'm not precisely sure that it's as clear-cut as that. I know that the company make the claim that by virtue of their membership of Australian Industry Group they are necessarily bound by the Metal Trades Award with regard to its employees at Williamtown. I have made - I've certainly made the point in the past that I don't think that has been adequately tested. I'm not so sure that that is the case and I'm not so sure that all classifications that are to be covered by a certified agreement that we're directing our attention to would necessarily fall within the incidents or the scope of the metals award.

PN245

Is the AWU a respondent to that - - -?---I believe we would be.

PN246

Yes. And if there was any difficulty about classifications, you could make an application to vary it in relation to Williamtown - - -?---I don't know whether it's - I don't know how easy or how difficult that is. My experience has largely been based in state - the Queensland jurisdiction, in terms of most of the awards there are common rule awards, not respondency-based awards.

PN247

You are aware, are you not, Mr Swan, and you were aware when you wrote this document, that the employees at Williamtown would be entitled to approach either the Federal Commission or the New South Wales Industrial Relations Commission if they had an unfair dismissal claim?---Certainly, yes, if they had an unfair - I don't think we've ever made the point that people wouldn't have access to the jurisdiction. I know precisely what you're driving at. It'd be the same point that Mr Williams had made in the proceedings on the 27th.

PN248

And the point is that this document is grossly misleading?---Well, I don't think it is. I think - I think where it states:

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN249

No procedures to protect you from unfair dismissal -

PN250

is a perfectly valid statement in the context of clauses that we seek to insert in certified agreements.

PN251

The position is that each of the employees who would be the subject of the certified agreement, if one were ever made, would - I'm sorry. Each of the employees who are the target of the certified agreement could, even absent a certified agreement, approach either the Federal Commission with an unfair dismissal claim, you accept that?---Yes, I do.

PN252

And otherwise if the Federal Commission couldn't deal with it, the State Commission could?---Absolutely. But it's a far cry to - it's fundamentally different from having procedures in a certified agreement that deal with consultation options that can be put to employees outside of dismissing them.

PN253

All of which, as I understand your contention, Mr Swan, proceeds on a fundamental premise that it is - that those terms would have to be agreed to by this employer?---That's right.

PN254

Yes. And so where your document refers to guaranteed wage increases in the second point on the left-hand column, that is based on the same premise that, (a) a certified agreement would have to be made and (b) that within its terms, there would have to be agreement of certain increases?---That's right.

PN255

Yes. And that's the same in respect of the second dot point - or the third one - that if there were to be better leave entitlements it is premised on, (a) the fact that there has to be a certified agreement agreed upon, and (b) that this employer would agree - - -?---That's right.

PN256

- - - to different terms from what it's presently offering?---That's right.

PN257

Highly speculative, is it not?---I think it - you might classify it as that, but I think if you look at any of the credible sort of research through ACERT, even the Department of Employment and Workplace Relations' own research, and cut down the sorts of advantages that there are in union agreements compared to other forms of agreements, I think that's a reasonable claim to make.

PN258

Improved superannuation entitlements; again, it assumes the company will concede the claim?---Well, it agree to, agree to a claim, yes. Yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN259

Now, the position is this, is it not, that the AWU, having taken the forma position which it publicised, that employees at Williamtown that come within its sphere of interest should reject the offer and vote for a collective union agreement and your having address the union members themselves to convey that AWU message, and your having ensured that this material be distributed across the site and possibly another site, the vast majority of employees within the AWU's interest, accepted the offers of employment?---I'll take your word for it. I don't know. I wasn't there when they signed it.

PN260

Yes?---I've no idea.

PN261

And you've made no inquiries about that?---Well, the - Mr Dixon, this is - this is the object of the exercise. We don't know what the views of most people inside are. We know what some of the views - - -

PN262

Mr Swan, I'm sorry, just could you stick to the question?---I am sticking to the question, Mr Dixon, I - - -

PN263

I'm asking about the acceptance of the contracts?---Yes.

PN264

Yes. You know, and have been told on a number of occasions by the company in one form or another, that over 90 per cent of the employees accepted the
offer - - -?---I've been told that that is the outcome.

PN265

Yes?---The fact that I know it, no, I don't. How could I? I've been - I've been informed by people from the company that that is the case. How would I know?

PN266

Now, you consult within your membership, of course, as to which of your members have accepted and not accepted?---Yes.

PN267

Yes. Now, the position also was, was it not, that some time earlier, or perhaps at the same time as you produced the document which is entitled, "Certified Agreements Versus Common Law Contracts", a petition was prepared for circulation at the site?---Yes.

PN268

Did you prepare the petition?---Yes, I think so, yes.

PN269

Was that petition circulated for anyone to sign or was it - - -?---I think it was a petition for the members.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN270

Members?---Yes, from memory.

PN271

Yes, and if you have a look at the document I hand you, please?---Thank you.

PN272

Can you tell the Commission when this petition was circulated?---Look, I can't, sorry. I - no, I don't recall exactly when, sorry.

PN273

This was, again - can I just suggest to you, the process would have been you prepared the document?---Yes.

PN274

You caused it to be circulated at Williamtown?---Yes.

PN275

And you asked your delegates, I take it, to urge all the members to express a view and sign up if they wished?---Yes. Amongst our members.

PN276

Yes?---Yes.

PN277

You're satisfied that these are your members?---As far as I'm aware, they all are. I've got a feeling, though, that I'm not - I had a feeling that - that this may - may not be the concluded petition. There might be some more signatures that were added at a later point beyond the point at which I actually obtained this particular copy, but in any event, I'm satisfied that the people that are actually on this are members of the union. I - yes.

PN278

You regarded this as a useful means of ascertaining the opinions of your members as to whether they wanted collective agreements or not?---We knew what the opinion of our members was in any event.

PN279

I see?---It was an exercise in being able to demonstrate that to the company.

PN280

I see. The AWU's position is that you know that your members are interested in a collective agreement?---Well, we've had a series of mass meetings over the course of a couple of months.

PN281

So you don't need a ballot to tell you that?---Not amongst our members.

PN282

No?---But amongst - but it becomes more of a - or a different proposition when you're looking at relevant employees to which an agreement would be directed.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN283

So you have easy access to establish what your members' interests are, but this exercise is for you to try and get a mechanism in place to ascertain the views of persons who are not your members?---That's right. All employees that would be subject to any prospective agreement.

PN284

Now, Mr Swan, I want to ask you to - - -

PN285

I'm sorry, may I tender the document, which perhaps is conveniently described as a petition, if your Honour pleases?

EXHIBIT #B1 UNDATED PETITION

PN286

MR DIXON: Were you also responsible for drafting media releases at any
time - - -?---No, there's a national - there's a national media office that looks after that.

PN287

Perhaps I can ask you to - you may be able to identify a document for us, please, Mr Swan. You'll see the document is headed "Media Release of Wednesday, June 1 2005", although it's marked with "Draft" I think it was publicised in various places and that's how my client has a copy. Do you recognise the document?---It's - look, it's possibly even one of the ones that are on our - that's been replicated on our website. I'm - yes, fairly - I'm not fairly familiar with it. I mean, I'm familiar with the fact that we put releases out and I know that the heading, "RAAF Jets Hit in Individual Contracts Row" is certainly something that we've got on our website, yes.

PN288

So if you look, for example, at about point 6 of the document in a quote attributed to Mr Maher, it says:

PN289

Unlike Boeing's individual contracts -

PN290

that's a view espoused by Mr Maher, the AWU Newcastle Branch Secretary to members as well?---It appears to be, yes.

PN291

Yes. I mean, even apart from this document, you've heard him say things like that, have you, to members?---Yes, yes. Absolutely.

PN292

You'll see in the next paragraph there's attributed to Mr Shorten, who I take it is the National Secretary of the AWU?---Yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN293

There's attributed to him comments concerning the new industrial laws which the federal government are contemplating?---Yes.

PN294

Yes, and you've heard Mr Shorten express those views publicly, have you?---Yes.

PN295

Yes. I tender the media release, if your Honour pleases?

EXHIBIT #B2 AWU MEDIA RELEASE DATED 01/06/2005

PN296

THE WITNESS: I - look, Commissioner and Mr Dixon, I know that that's been tendered, but I just have some reservations about the fact that it's got "Draft" on it because I know when Jeremy was the media officer, a lot of these things are changed, but in any event - - -

PN297

MR DIXON: Mr Swan, I think we'd be content that you have confirmed that Mr Maher has expressed, even apart from this media release the comments in the third-last paragraph and that Mr Shorten's position in the second-last paragraph to the effect of what this dispute shows in respect of new industrial laws could be used to force individual contracts with worse pay - - -?---Yes.

PN298

- - - that is a public position which Mr Shorten has expressed, to your knowledge, in respect of this dispute?---Absolutely. Yes, yes. No, you're right, Mr Dixon. You're right.

PN299

Yes, and is that a view that you have also espoused or expressed to members at Williamtown?---Yes, the view that I've expressed is that if you think it's bad enough under the existing laws, think how much worse it could be under the new laws, yes.

PN300

And that's part of what you use as a means of trying to persuade this company that it should make a certified agreement?---Well, I don't know how that's going to force - how saying that will force the company to make a certified agreement. It's more about the convincing the people that we need to convince to make a certified agreement.

PN301

May I then ask you to have a look at another document? Just before I ask you to look at it, Mr Swan, were you in the Commission on the last occasion, on 16 September?---Yes. Yes, I was.

PN302

Do you recognise this pamphlet or flyer? The one headed, "Boeing Running Scared" of 16 September 2005?---Yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN303

Did you produce this? Did you write it?---No, I didn't. No. The national media officer.

PN304

Yes, on information that you supplied?---Yes.

PN305

This was distributed on site, to your knowledge?---No, I think it was - it would have been a media release. If it's off the internet, off our home page, that looks as if it - well, it has. It's AWU National News, so it's been - it's a media release that's been replicated, but it may well have been distributed to our members on site. I certainly personally didn't, but I don't know.

PN306

But the message - you're familiar with this document, aren't you?---Yes.

PN307

The contents of this document?---Well, I've read it, yes.

PN308

Yes. Is the message that is conveyed in this document, to your knowledge, is that a message that's also being conveyed to members employed at Williamtown?
---Absolutely. Yes. Yes.

PN309

How has that happened?---I've had discussions with people about the process. I'm up there nearly every week.

PN310

Yes, and you have told the members, after 16 September, a similar - sorry, you reported to them in terms reflecting what is in this document?---Yes, broadly. Yes.

PN311

In the second-last paragraph, the words attributed to Mr Maher, have you heard that - that's Mr Maher, the Newcastle secretary, is it?---Yes.

PN312

The words in the second-last paragraph, it's not clear whether - you might be able to help us in this, Mr Swan. You'll see earlier in the document there are attributed to Mr Shorten various quotes?---Yes.

PN313

You'll see in the third paragraph it refers to Boeing's stubbornness and stalling tactics?---Yes.

PN314

And then the next three paragraphs are in quotes?---Yes.

PN315

Should we assume that that's what Mr Shorten has said?---Look, I guess the syntactical sort of presumptions that you make about how journalists construct articles are that, you know, if it's quoted after Mr Shorten having said something preceding it, it's attributable to him, yes.

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN316

But that's your understanding, that's Mr Shorten's - it's your understanding of what Mr Shorten has said about from within this national news document?---Well, the way I read it, it's attributable to him. Yes.

PN317

The last paragraph, would that be attributable to Mr Maher?---I - again, using the same strain of logic or process of logic, yes.

PN318

The views expressed in the last paragraph about:

PN319

Boeing might be doing the Howard government's bidding - - -

PN320

et cetera, is that a view that you've heard Mr Maher express to members of the AWU employed by Boeing at Williamtown?---I can't - look, I wouldn't say that.
I - - -

PN321

But they - I'm sorry?---Yes, I - - -

PN322

They're views that you have expressed to employees at Williamtown?---I don't think I've ever necessarily expressed that view. I'd agree with the last part of the comment. I mean, look, it's not that I disagree with it. I don't want to give that impression. I'd certainly agree with the last part of it.

PN323

I seek to tender the document, your Honour.

EXHIBIT #B3 DOCUMENT HEADED BOEING RUNS SCARED DATED 16/09/2005

PN324

MR DIXON: Just tell us about AWU National News, Mr Swan? What is that?
---It's just in terms of the website, there's obviously a segment of the website that's constructed to outline recent media releases that touch on issues of importance to our members.

PN325

And your members have ready access to that by just clicking on AWU and then going to this particular site on the AWUs website?---Yes.

PN326

Your members are encouraged to access the website to get updates about the dispute and things like that?---All our members are, yes. Those with internet access.

PN327

Yes. So this is an effective means, so far as the AWU is concerned, of conveying reports to the members about what happens, for example, in the Commission concerning this dispute?---It's an efficient means. It's not - because I don't deal with the internet aspect of it, I don't know how effective it necessarily is, but it is an efficient means - - -

**** BENJAMIN CHARLES SWAN XXN MR DIXON
PN328

And your members are encouraged to access the site, to keep in touch with what the AWU is doing on their behalf?---Yes, absolutely.

PN329

And what the AWU is saying on their behalf?---It's precisely the purpose of having an internet site, yes.

PN330

In some people's view. Thank you, your Honour. I have no further questions.

PN331

THE SENIOR DEPUTY PRESIDENT: Ms Howell?

<RE-EXAMINATION BY MS HOWELL [11.02AM]

PN332

MS HOWELL: Mr Swan, you were taken to a document which is exhibit PGB6 to Mr Best's statement which is the document which has the two columns headed, "Collective Union Agreements" and "Common Law Contracts"?---Yes.

PN333

And you were asked about the words at the bottom where it said:

PN334

Reject Boeing's offer of further common law contracts and vote for a collective agreement.

PN335

?---Yes.

PN336

Now, was there any mechanism whereby people could vote for a collective agreement per se?---No. I think - look, there's a bit of loose terminology. You can look at it a couple of ways, but I mean, really the point we're trying to get across is vote with your feet, effectively. You know, join us. That's - yes. There wasn't a vote process as I understood - well, certainly not with regard to a collective union agreement and I don't know what, if any, process there was with the further common law contracts, but reading some of the material that the respondents have filed, it appears that they - individuals at some point in June signed individual agreements. Some didn't.

PN337

You were also asked about the AWU's intention to explain its position to the relevant group of employees in accordance with order 3 of the directions which are sought?---Yes.

PN338

How long do you say that would take the AWU?---Look, it's - I mean, it's difficult to say because obviously it's dependent on - it could be dependent on a number of issues. I expect that with regard to our members it wouldn't take very long. But in the overall context, if you were to have one meeting, I really don't know; half an hour possibly. I mean, it's not a - there seems to be a - to me, an issue regarding - well, there is an issue regarding the process, but it's not a - at this point anyway, it's not a question of the substance of an agreement, it's a question of form. So you don't need to bog yourself down into the minutiae of, you know, what the current common law contracts provide for and what not, it's more a conceptual argument about collective agreements versus individual contracts.

**** BENJAMIN CHARLES SWAN RXN MS HOWELL
PN339

Thank you?---Is from our perspective.

PN340

Nothing further, thank you.

PN341

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Swan, you're excused from the witness box. Thanks for your assistance. You can remain in the court if you wish.

<THE WITNESS WITHDREW [11.05AM]

PN342

MS HOWELL: Your Honour, that's the evidence for the AWU.

PN343

THE SENIOR DEPUTY PRESIDENT: Mr Dixon?

PN344

MR DIXON: Thank you, your Honour. Your Honour, the company has filed, in accordance with the position adopted when the matter was last before your Honour, an outline of submissions. Does your Honour wish to mark that?

PN345

THE SENIOR DEPUTY PRESIDENT: I didn't mark the union's outline of submissions, but it might be, for ease and convenience, appropriate to do so.

EXHIBIT #B4 COMPANY'S OUTLINE OF SUBMISSIONS

PN346

MR DIXON: Your Honour, I haven't intended to open because I got the impression your Honour has probably read the materials.

PN347

THE SENIOR DEPUTY PRESIDENT: Yes, I've read the submissions and I should have, at the opening, thanked the parties for those written submissions which were of assistance to me.

PN348

MR DIXON: On that basis, I would seek to call Mr Best.

<PETER GREGORY BEST, SWORN [11.07AM]
<EXAMINATION-IN-CHIEF BY MR DIXON [11.08AM]

PN349

MR DIXON: Mr Best, your full name is Peter Gregory Best?---Correct.

PN350

You are employed by Boeing Australia Ltd as Operations Manger, Military Aerospace Support?---Correct.

PN351

And your business address is 363 Adelaide Street in Brisbane?---Correct.

PN352

You've held the position of operations manager, or a similar role, for about five years?---That's correct.

PN353

In that capacity, you have responsibility for employment matters of employees of Boeing within the MAS division which is the Military Aerospace Support division at Williamtown, Amberley in Queensland and Oakey in Queensland?---That's correct, and within the operations group for the MAS division.

PN354

Yes, a subgroup within the MAS group, which you describe in your statement. Now, for the purpose of these proceedings, you have prepared a statement of some 76 paragraphs with I think nine attachments - yes, nine attachments. Do you have a copy of that with you?---I have a copy here.

PN355

And do you say that the contents of your statement are true and correct?---Yes, I do.

PN356

I tender the statement, your Honour.

EXHIBIT #B5 WITNESS STATEMENT OF PETER GREGORY BEST DATED 07/10/2005

PN357

MR DIXON: That's the evidence-in-chief, thank you.

PN358

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Ms Howell?

<CROSS-EXAMINATION BY MS HOWELL [11.10AM]

PN359

MS HOWELL: Mr Best, at paragraph 6 you say that part of your role involves ensuring that your people resources can be grown. Can you explain what that expression means?---The expression of grown?

PN360

Yes?---Expanded, to meet emergent business requirements or current business requirements.

**** PETER GREGORY BEST XXN MS HOWELL
PN361

So you mean the number of employees needs to be increased?---Numbers and types. Could be a mix.

PN362

I see. Now, in terms of the simple issue of what form of industrial regulation would apply, whether it be individual contracts, AWA's or agreements under Part 6B of the Workplace Relations Act, whose decision is it ultimately within Boeing as to what form of agreement, leaving aside the content, would apply to the operational employees at Williamtown?---That decision is taken at the corporate level of Boeing Australia.

PN363

What does that mean, Mr Best?---That would be at the senior leadership team of Boeing Australia.

PN364

Can you identify who the individuals are who would make that decision, please?
---It would be a mix of individuals, but principally the managing director, Mr Gray, his senior leadership team, taking advice from senior HR practitioners within Boeing Australia.

PN365

So in terms of who makes the final decision, has the final say, do you say that that's the managing director?---That would be a fair and reasonable, I guess, approach to take, yes.

PN366

Paragraph 17, you refer to movements between your various sites, or three sites in particular, I take it, at Amberley, Oakey and Williamtown?---Amberley, Oakey and Williamtown.

PN367

Thank you. Are you able to tell the Commission how frequently during the last six months employees have been required to move from Williamtown to one of the other two sites?---I've indicated in my statement, I believe it is part of paragraph 17, that employees would move between sites every two to four weeks to meet business contingencies.

PN368

Yes, thank you, Mr Best. I do read that. I was asking you specifically about movements from Williamtown to the other two sites?---In the last six months?

PN369

Yes?---I - there have been some small number of movements, principally for training, and also to undertake specific technical process relating to the repair of components.

**** PETER GREGORY BEST XXN MS HOWELL
PN370

Are you able to indicate how many - - -?---No, I cannot.

PN371

- - - when you say a small number? It certainly wouldn't have occurred once every two to four weeks, though, would it?---I - I can't answer that.

PN372

Well, that statistic refers to movements between all three sites, doesn't it?---It does, in the gross. In the gross.

PN373

Yes. So one can safely assume that movements from Williamtown to one of the other two sites would be a lesser figure?---It would be part of that figure.

PN374

It would be less, less frequent?---You may draw that conclusion.

PN375

It's an inescapable conclusion, isn't it, Mr Best?---It's a reasonable conclusion.

PN376

Now, in paragraph 20 you refer to the differences between the approach to remuneration taken in the operations capability team and that taken with respect to the operations support teams. Could you tell the Commission what variations you are there referring to, please?---Yes, I can. The variations relate to payments in terms of TRP levels for different skill-sets within the two teams.

PN377

By that do you mean the basic rates of pay are different?---They can vary, depending upon the job position description. Therefore, the skills and qualifications required.

PN378

In other words, you're talking about different people doing different types of work and remunerated at different levels?---That's correct.

PN379

There are also different sets of conditions which apply as between the two groups?---No. Common law contracts are used for both those two teams within the group.

PN380

Yes. In terms of the substance of the conditions, such as allowances, other entitlements, are there differences in those respects as well?---No, they're similar.

PN381

Similar? By similar, do you mean identical, or do you mean there are some differences?---Depending upon what roles individual employees play, what their job requires of them. For example, within those two streams, employees can do overtime, dependent upon the work requirements. They'll be both paid - or they'll be paid, if they belong to different streams, overtime.

**** PETER GREGORY BEST XXN MS HOWELL
PN382

I'm sorry, Mr Best, are you saying that the overtime regime is the same with respect to both streams or different?---The same.

PN383

Which, that regime being that if you work more than six hours overtime in a fortnight, you get paid for hours in excess of that?---You - under your TRP, you become eligible, yes, for payment of overtime.

PN384

You say that BAL is bound by the Federal Metal Trades Award by virtue of its membership of the AIG, and that's paragraph 21?---Correct.

PN385

For how long BAL been a member of the AIG?---I'm sorry, I don't know.

PN386

I see. You're aware of the group of members to whom this application applies?
---The application for ballot?

PN387

Yes?---Yes, I've been made aware of that.

PN388

Yes, and that's the operations capability team at Williamtown?---Yes.

PN389

Yes. Now, of that group, a number of those employees are currently on Australian Workplace Agreements?---I can't answer that. I don't know.

PN390

Well, in considering the extent to which there is currently uniformity across the group, it would be necessary to know that, wouldn't it?---That is a reasonable position.

PN391

I show the witness this bundle of documents, please? Thank you.

PN392

I'm sorry, they're not bound, Mr Best?---I'm sorry?

PN393

I'm sorry they're not - - -?---That's all right.

PN394

MR DIXON: Your Honour, I'm sorry to interrupt, may I see what documents Mr Best is being handed?

PN395

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN396

MS HOWELL: Mr Best, I think you, having looked at - - -

**** PETER GREGORY BEST XXN MS HOWELL
PN397

MR DIXON: Just a moment - - -

PN398

MS HOWELL: Mr Best, while you're waiting for Mr Dixon, perhaps you could just open PGB9 of your statement? It contains some of those documents?
---Certainly.

PN399

MR DIXON: Your Honour, I'm trying to avoid perhaps some later confusion in relation to this matter. In an unstapled fashion, my learned friends seems to have given, or has asked for the witness to have the following documents, which are perhaps more readily identifiable in the attachments to Mr Best's statement. The first of the documents has a number on the top right-hand side which is the first document, PGB9.

PN400

THE SENIOR DEPUTY PRESIDENT: Yes. That has number 1 on it?

PN401

MR DIXON: It's got number 1 on it. The second document that was handed to him appears to be a copy of the document marked number 2 of 14 June.

PN402

THE SENIOR DEPUTY PRESIDENT: Yes.

PN403

MR DIXON: The third document is document number 3, marked 3 in the top right-hand corner, of PGB9, and the fourth document is one with a 4 in the top right-hand corner which is a copy of the document which appears behind PGB1, a letter with a blacked-out addressee dated 9 June 2005.

PN404

THE SENIOR DEPUTY PRESIDENT: Yes, I follow.

PN405

MR DIXON: I can now hand back the bundle to Mr Best, if your Honour pleases.

PN406

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. All right. Yes, Ms Howell?

PN407

MS HOWELL: Mr Best, the four documents which are annexed at different places are in different terms? They're not all identical obviously, are they?---Let me just check them for you. There is one document dated 9 June which I believe refers to PGB1, which is referenced earlier in my statement.

PN408

Let's just stay with that one for the moment, Mr Best. First of all, do you know who the documents in this form went to, or how many of the relevant employees it went to?---No, I do not. The name has been removed and it is - - -

**** PETER GREGORY BEST XXN MS HOWELL
PN409

Now, in paragraph 22 you refer to that letter as a sample letter - it's now - the letters of employment which went out to employees generally?---Correct.

PN410

Yes. Now, the first line of that letter says:

PN411

I refer to your letter of appointment and to your Australian Workplace Agreement.

PN412

?---Right.

PN413

Now, you'd agree that it's reasonable to infer from that letter that a number of the relevant employees were in fact on AWAs at the time this letter was written?---It would be a reasonable - it would be reasonable to accept from this letter that at least the recipient of this letter was on an Australian Workplace Agreement.

PN414

Yes, and you've advanced this letter as a sample of the letters which went out to the relevant employees?---It's a sample.

PN415

Yes, and you don't know how many others were also on AWAs?---No, I do not.

PN416

You certainly don't know what the terms of any AWAs were?---No, I do not.

PN417

So you're unable to tell the Commission what degree of consistency of terms and conditions of employment are actually applicable across the workforce currently? ---I can certainly tell the Commission that these - the terms and conditions in this letter, number 4, dated 9 June, are applicable to the employee at Williamtown who received this letter.

PN418

You know for a fact that this employee, this particular nameless employee, has had the AWA terminated through the Employment Advocates Office?---No, I do not know.

PN419

So you don't know the terms of the Australian Workplace Agreement?---I've answered that question.

PN420

And you don't know whether it's still operative or not?---No, I don't.

PN421

So in fact, you don't know what terms and conditions apply to the particular employee who was the recipient of this letter?---I presume it is - if they accepted this, it is the terms and conditions as outlined in this letter.

**** PETER GREGORY BEST XXN MS HOWELL
PN422

If they accepted?---Correct.

PN423

And you don't know whether they accepted or not?---Well, the last page is the "I accept the terms", the last page of this letter, page 10:

PN424

I accept the terms and conditions of this letter.

PN425

It is unsigned.

PN426

It is unsigned, exactly. So you don't - and even assuming they'd signed that, it could only be operative to the extent that it was consistent with an AWA, couldn't it?---Sorry, I don't understand your question.

PN427

Any individual contract could only be operative to the extent that it was consistent with an AWA which was currently in operation? That's so, isn't it?---The individual contract, which is this document here, is what the employee - - -

PN428

THE SENIOR DEPUTY PRESIDENT: Sorry, could you identify that, Mr Best?
---I'm sorry. It's number 4, Commissioner.

PN429

The document we're talking about? I see. I thought you were picking up another document?---No, I'm sorry. It's 9 June - - -

PN430

Yes, I'm with you, yes, yes. Sorry?---Pardon me. The terms of employment offered to this employee are as per this letter.

PN431

MS HOWELL: Yes, that's what offered, but I'm asking you about what's actually applicable, Mr Best, and you're unable to tell the Commission, in the case of that employee, what the terms and conditions are?---Because I do not know who the employee is. There is no name. It is a typical letter.

PN432

Yes, and because you don't know how many employees are currently on AWAs, you're unable to comment on the employment conditions of an unknown number of your employees? That's so, isn't it?---If there are any employees on AWAs.

PN433

But at least at 9 June, we know there were some?---There may have been one person.

PN434

Yes, and there may have been more?---I don't know that.

**** PETER GREGORY BEST XXN MS HOWELL
PN435

You don't know; you know it's a possibility, though, don't you, Mr Best?---It's a probability.

PN436

Yes. And to the best of your knowledge, no application has been made by Boeing to the Office of the Employment Advocate to terminate AWAs since 9 June?---I believe I answered that question.

PN437

I don't think you did, Mr Best. Perhaps you can answer it again?---Could you repeat the question, please?

PN438

To the best of your knowledge, Boeing has not made any application to the Office of the Employment Advocate since 9 June 2005 to terminate any AWAs applying to this group of employees?---To the best of my knowledge, that is correct.

PN439

I take it, Mr Best, that the Metal Industry Award doesn't apply to your operations support people?---We still use that award as an underpinning award.

PN440

I see. Now, you talk throughout your statement about the TRP model. Can you explain to the Commission exactly what you mean by that?---The total remuneration package?

PN441

Yes?---Which consists of, as per these letters, Commissioner.

PN442

THE SENIOR DEPUTY PRESIDENT: Yes, thank you?---Right. A salary, superannuation, and allowances.

PN443

MS HOWELL: Yes?---Which is the, you know, the total remuneration package paid to employees.

PN444

Now, you would accept, Mr Best, that generally speaking, any employee will receive various components including salary, allowances, superannuation and so forth?---Yes, I accept that.

PN445

Yes. Now, what I'm really trying to get at, Mr Best, is what distinguishes your TRP approach from the average ordinary package that an employee might enjoy?
---I'm only familiar with our TRP. I cannot comment on what other employees across industry may enjoy.

PN446

I'm not talking about the content, I'm talking about the form. You go to some lengths to say that it's important across the three sites that are discussed in your affidavit, that the TRP approach should apply, and what I'm trying to get at, Mr Best, is how you distinguish the TRP approach from the general run of packages whereby employees enjoy a range of salary and other benefits?---The TRP approach enables a consistency to be made across employees within the group, across different sites.

**** PETER GREGORY BEST XXN MS HOWELL
PN447

Well, let's just suppose that all employees have a set of terms and conditions under a certified agreement, for example. They might have in fact terms and conditions which are, for example, as set out in the letters which you have referred to?

PN448

MR DIXON: I object, your Honour. I think there's a difficulty with the question, when my learned friend refers to all employees. It's not clear what category of employee she is referring to. Is she referring to everyone employed across - - -

PN449

MS HOWELL: I'm happy to clarify that.

PN450

THE SENIOR DEPUTY PRESIDENT: Yes. If you can clarify that, Ms Howell?

PN451

MS HOWELL: Let's focus the question on the operations employees across the three sites, Mr Best. That seems to be the focus of your statement - - -

PN452

MR DIXON: I don't think my learned friend can assume that in her question. It's not an accurate assumption.

PN453

THE SENIOR DEPUTY PRESIDENT: Can you just refer to the group that you wish Mr Best to answer the question - - -

PN454

MS HOWELL: Yes, I thought I had, your Honour, and that is the three operations groups at the three sites.

PN455

Is that a group which makes sense to you, Mr Best?---There are two streams - or two teams within the operations group and they are employed across three sites within Boeing Australia.

PN456

Yes. Let's confine our question to that group that you've just identified?
---Groups.

PN457

Let's assume that all of that group were covered by a collective agreement which set out terms and conditions consistent with those which are set out in the letters of offer which you have annexed to your statements. Now, how would the arrangements under a collective agreement differ, in your view, from the same remuneration package as applied in the individual contracts?---I can't comment on that because I don't understand the construct of whatever collective agreement may apply.

**** PETER GREGORY BEST XXN MS HOWELL
PN458

Well, I'm asking you to assume for the purpose of the question that the terms and conditions which are found in your individual letters of offer were incorporated into a collective agreement?---Once again, I don't understand what the full terms and conditions of the collective agreement may be.

PN459

Well, I'm limiting them, for the purpose of the question, Mr Best, to those terms and conditions which are found in your individual letters of offer. That's the extent of the hypothetical?---Right, and it is a hypothetical.

PN460

Indeed, and I'm asking you to say how that would differ in the event that such a collective agreement applied from your TRP model?

PN461

MR DIXON: I object, your Honour. This is simply a hypothetical. It is so far removed from what the AWA seeks in this case that it's not a valid proposition to put to this witness, in my respectful submission.

PN462

MS HOWELL: Well, your Honour, with respect, it goes to the heart of the proposition which is what we're seeking is an indication as to the form of agreement which should apply, not the content.

PN463

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, you can ask the question, Ms Howell, if you like.

PN464

THE WITNESS: Please repeat?

PN465

MS HOWELL: I'm asking you, Mr Best, if you can identify any difference in collective agreements which have the terms and conditions set out in your letters of offer and was limited to those terms and conditions, vis-à-vis the same terms and conditions being offered by way of an individual contract? What would be the practical difference?

PN466

MR DIXON: Your Honour, I object to the question. May I ask that Mr Best steps out so I can put my objection without him being present?

PN467

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN468

MR DIXON: Mr Best, would you mind just stepping outside so that you don't hear the submission I'm about to make, please?---Sure.

**** PETER GREGORY BEST XXN MS HOWELL
PN469

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Best.

<THE WITNESS WITHDREW [11.38AM]

PN470

MR DIXON: Your Honour, the question is clearly one which involves the interpretation of the legal effect of the documents. If one has a certified agreement enforceable by way of penalty, there's a fundamental legal difference and it's not fair to ask this witness the question and ask him to have to make that assessment without testing what his knowledge is of enforceability, and in any event, that's irrelevant because your Honour can draw those conclusions. In my respectful submission, it's not a fair question to ask the witness what is the practical difference when there is a fundamental legal difference which we all know.

PN471

MS HOWELL: Well, your Honour, I don't know if your Honour has had the opportunity to read Mr Best's statement, but he's certainly had absolutely no hesitation in coming forward and saying collective agreements are inappropriate because they cut across the TRP model and I'm trying to get him to identify what the practical difference would be.

PN472

THE SENIOR DEPUTY PRESIDENT: Well, maybe you could approach it by asking the questions arising out of his statement directly in the terms you have just indicated, Ms Howell? Because there is a distinction between a practical effect and a legal effect. That's Mr Dixon's distinction, as I apprehend it.

PN473

MS HOWELL: Yes, your Honour, and I was asking the witness about the practical effect and - - -

PN474

THE SENIOR DEPUTY PRESIDENT: I think if you confine it to that, I'm content with that. I take on board what Mr Dixon said and it's on the record with respect to the obvious difference in the terms and enforceability and so on of the instrument.

PN475

MR DIXON: As your Honour pleases.

PN476

THE SENIOR DEPUTY PRESIDENT: Thank you.

<PETER GREGORY BEST, RECALLED ON FORMER OATH [11.40AM]

PN477

THE DEPUTY PRESIDENT: You're still under oath, Mr Best?---Thank you.

<CROSS-EXAMINATION BY MS HOWELL, CONTINUING

PN478

MS HOWELL: Mr Best, leaving aside any legal technicalities, can you identify any practical difference for the company as between having those terms and conditions which are set out in the letters of offer apply in a collective agreement under Part 6B rather than having them apply in individual contracts?---No, I can't. I'm not qualified in that area.

PN479

Of course, there's no reason in principle that you're aware of why such terms and conditions couldn't be incorporated into a collective agreement?---Yes, there is. Boeing Australia does not want it. It does not suit our business.

PN480

Why wouldn't a collective agreement suit your business, if it contained identical terms and conditions to the individual contracts?---I just said I'm not qualified to answer that.

PN481

So you've come here to give evidence about Boeing's position, but you're unable to explain why it holds that position, is that right?---I am able to say to you, as a spokesman for the company, the company's position is that we prefer individual contracts, it provides us with business flexibility, and coupled to those individual contracts, we remunerate out people via a total remuneration package.

PN482

Yes. When you say it gives your company flexibility, what do you mean by that?
---It enables, in my instance, as part of the MAS operations manager, enables me, or gives me the flexibility to move people throughout our business within site and also to other sites, to provide surge and other skills capabilities to sites to meet business commitments.

PN483

Mr Best, that's a function of consistency of terms and conditions, isn't it?---As well as managing people and resources.

PN484

Yes. There's nothing about a collective agreement that would stop you moving people?---Depends what terms and conditions, and I'm not, as I said, answered earlier, I'm not qualified to answer that question.

PN485

Well, just assuming the terms and conditions of a certified agreement were identical to individual contracts, then a certified agreement wouldn't impede your ability to move people?---I'd have to take that on notice within the company.

PN486

Well - - -?---It's a hypothetical.

**** PETER GREGORY BEST XXN MS HOWELL
PN487

Of course it's hypothetical. I'm asking you to comment on the hypothetical, Mr Best. Can you think of any reason why a collective agreement would impede movement between sites if it contained the same terms and conditions that were found in individual contracts?---Depends upon the jurisdiction of that agreement, is one.

PN488

What do you mean by that?---Where it's applicable, which state.

PN489

But if the terms and conditions are identical in any event, Mr Best, how could the jurisdiction of the agreement affect your ability to transfer employees?---It could involve people between sites having - how can I say this? Comparing terms and conditions.

PN490

Mr Best, I've asked you to comment on a situation where the terms and conditions are identical. You have a collective agreement and you have some individual contracts. In that scenario, what possible difficulty could there be in transferring people?---And I've told you I am unable to comment on that because I don't understand the full implications of it.

PN491

So when we're looking at the pure form of regulation, being collective agreements versus individual contracts, devoid of the - I'm sorry, I withdraw that. Devoid of the content, you're unable to express a view as to why one form would be preferred over the other, is that right?---Other than the company prefers individual contracts.

PN492

Yes, and you're unable to explain to the Commission why that would be?---That's what I've said.

PN493

Yes. Now, when you say at paragraph 25, Mr Best, that the TRP model is critical to your business model, what aspect are you saying is critical?---Consistency. Such that we can apply and use and have available to me within the operations group a seamless capability.

PN494

I see?---Consistency and fairness.

PN495

In advancing that proposition, Mr Best, you say nothing about the form of agreement, but about the actual terms and conditions which apply, aren't you?
---Not in that paragraph.

**** PETER GREGORY BEST XXN MS HOWELL
PN496

The TRP model provides for performance-based payments?---It does.

PN497

Yes. How are they assessed?---Assessed - there's an annual assessment performed on employees which contributes to annual remuneration reviews. There's also the ability for managers and supervisors within the business to recognise in a more instant or immediate fashion the - via an instant recognition scheme the performance or attributes or activities of employees.

PN498

That performance-based system gives rise to a situation where employees performing identical work may be paid different rates of remuneration?---It can do, dependent upon the employee's performance.

PN499

It's the case, isn't it, that employees are not permitted to discuss their own remuneration level with other employees?---Employees do.

PN500

The contracts which you provide them with tell them that the remuneration is a confidential matter?---It is a confidential matter with the employee.

PN501

Do you say that they're entitled to discuss their remuneration with other employees?---No, I said they do.

PN502

But Boeing seeks to have a situation where they don't do that?---In providing a letter of remuneration to an employee, we treat that as a confidential matter between the company and the employee.

PN503

Boeing seeks a situation where employees do not discuss with other employees their remuneration? Is that correct?---We say to the employee in their letter, that is confidential with them. What they do and how they adhere to that, I cannot control.

PN504

Is it Boeing's intention, in putting that clause in the contract, that the employees not discuss with other employees their terms of remuneration?---Yes.

PN505

Thank you. Now, assuming, again hypothetically, that a certified agreement was made between Boeing and the AWU covering this particular group of employees, that is, the Williamtown group, obviously that would involve agreement on Boeing's part to those particular terms, wouldn't it?---Boeing is not seeking a certified agreement.

**** PETER GREGORY BEST XXN MS HOWELL
PN506

Yes, I understand that, Mr Best. I'm putting a hypothetical to you. If there was to be such an agreement, and you understand, you've discussed the possibility in your affidavit - - -?---Yes, I have. Yes.

PN507

If there was such an agreement, the substantive terms and conditions would, of necessity, have been agreed by Boeing?---It would have to be discussed with and agreed by Boeing.

PN508

Indeed, and presumably in that process the terms and conditions which were agreed would be terms and conditions which Boeing regarded as appropriate to its operations?---To enable the business to perform, yes.

PN509

Yes. To the extent that any such terms and conditions were limited to a particular group that were the subject of the agreement, there would be nothing to stop Boeing from extending those terms and conditions to other employees?---That's a hypothetical, as you are saying.

PN510

Yes?---It would be a matter that would have to be taken by senior management within the company.

PN511

Yes. It would at least be a possibility, wouldn't it?---I presume it would be a consideration.

PN512

To the extent that it was appropriate, that possibility would extend to the operations support team?---Once again, hypothetically, perhaps.

PN513

So there's no necessity that a collective agreement would lead to any differentiation between terms across different sites, is there, Mr Best?

PN514

MR DIXON: I object. That question is so loaded, given the fundamental premise which my learned friend introduced earlier; namely, that the terms would have to be agreed upon. If the terms are different, it's a fundamentally different position.

PN515

MS HOWELL: Well, I press the question, your Honour. The witness has agreed that it's possible that any terms and conditions agreed in an agreement could be extended to other employees not covered by the agreement.

PN516

THE SENIOR DEPUTY PRESIDENT: I think he said it was a consideration, to be taken into account for senior management to decide.

**** PETER GREGORY BEST XXN MS HOWELL
PN517

MS HOWELL: Yes, your Honour, and I think implicit in that is that it's a possibility that management might decide in favour, as direct as we get.

PN518

THE SENIOR DEPUTY PRESIDENT: Well, I think it is a loaded question, Ms Howell.

PN519

MS HOWELL: I'll try again, your Honour.

PN520

THE SENIOR DEPUTY PRESIDENT: Yes.

PN521

MS HOWELL: Mr Best, you don't suggest that a collective agreement would, of necessity, lead to differential conditions between different sites, do you?---Would you repeat the question, please?

PN522

You don't suggest to the Commission that a collective agreement at Williamtown would, of necessity, lead to differential terms and conditions across the three sites?---I'm not suggesting anything because it's not my hypothetical.

PN523

Can you think of any - I withdraw that. You accept that if a collective agreement was entered into at Williamtown, it would be a matter at the discretion of management as to whether the terms and conditions in that agreement would be extended to employees at other sites?---I think I said it would be a consideration of senior management.

PN524

And do you accept that it would be a matter for their discretion whether that occurred or not?---As it is with a lot of decisions within our business.

PN525

So it would be possible, wouldn't it, Mr Best, to have a collective agreement applying at Williamtown and to maintain consistency at other sites?

PN526

MR DIXON: I object, your Honour. It's another - there's a fundamental problem with this questioning. Parties not covered by a collective agreement are bound by contract of employment. Without their consent, and matters such as that, these questions are just designed to not be fair in the context of the true legal position which applies when one party seeks to change the terms and conditions of employment. It's different if a certified agreement imposes those obligations and therefore, to the extent of inconsistency, alters the contractual rights, but it's an entirely different situation as to whether one party has the right, even the desire, to change terms and conditions of employment.

**** PETER GREGORY BEST XXN MS HOWELL
PN527

THE SENIOR DEPUTY PRESIDENT: Ms Howell?

PN528

MS HOWELL: Well, your Honour, I would say that's a fair question, particularly in light of the terms of the contract which enables the respondent to vary terms and conditions at four weeks' notice.

PN529

THE SENIOR DEPUTY PRESIDENT: Yes, I think it's fair, too, particularly in light of Mr Best's statement at paragraph 28 where he says that he has in fact given the operations support team an undertaking that any significant changes to the way the operations capability team is remunerated will be flowed through to the operations support team. I'll allow that question.

PN530

MS HOWELL: Mr Best, are you able to answer that question?---Can you repeat it, please?

PN531

In the event that a collective agreement was entered into applying at Williamtown, it would be possible to maintain consistency of terms and conditions across the three sites?---It's a possibility.

PN532

I'd ask that the witness be shown this document, please?

PN533

Mr Best, have you seen that document before?---I saw it yesterday.

PN534

I see. And that's a document which was produced by Boeing in response to a subpoena - - -

PN535

MR DIXON: There are two documents.

PN536

MS HOWELL: There are four pages, Mr Best, and the four pages were produced by Boeing in response to a subpoena by the AWU? You accept that?---If that is the case, I accept it.

PN537

You accept that the first two pages constitute a media statement issued by Boeing Australia concerning the dispute at Williamtown?---That's what the title says. I presume the subject matter reflects the title.

PN538

And that the third page is headed, "Boeing Australia Background Facts to Current Dispute at Williamtown"?---Yes.

**** PETER GREGORY BEST XXN MS HOWELL
PN539

Are you aware as to whether that document formed part of or was attached to the media statement at the time of issue ?--- No, I'm not aware.

PN540

Mr Best, I take it you had no hand in the drafting of this document?---That's correct.

PN541

Are you aware as to who did draft it?---No, I'm not.

PN542

Does Boeing Australia have media persons of any sort?---We have a strategic communications group working in Brisbane and through that group or within other groups within our company we engage media companies, media organisations.

PN543

Is there anything in that statement issued to the media that based on your knowledge is inaccurate?---May I read it?

PN544

Yes, please?---Thank you. What was the - may I ask a question of you, with respect to this document which is the media statement?

PN545

Yes?---What is the timeline for that document?

PN546

I was hoping you'd tell me that, Mr Best. Certainly at a time when the employees are out on strike; more than that I don't know that I can tell?---Thank you. I have read the media statement.

PN547

Is there anything in that statement that to your knowledge is or may have been inaccurate?---In terms of is, currently there are 25 employees on strike, of 33, and that changes the percentage figure from 10 per cent to around 7 of the aircraft maintenance workforce at Williamtown. Apart from that, I find the document reasonable.

PN548

On the first page, the three dot points under REBA dispute - sorry, first of all, Mr Best, can I ask you, are you aware as to how many media statements Boeing has issued in respect of the dispute?---No, I am not.

PN549

Certainly you yourself have had occasion to communicate Boeing's position to various groups in the community?---Once.

PN550

What was that occasion?---That was a letter to the Newcastle City Council. It's in my statement.

**** PETER GREGORY BEST XXN MS HOWELL
PN551

Yes. Now, in the second dot point, it said:

PN552

Those vast majority of our employees have made it clear they do not want to collective agreement and prefer to stay on their current employment arrangements which have been in place for many years.

PN553

When reference is made to "those vast majority of our employees", you would understand from that that it's a reference to the 90 per cent who were not on strike at that time?---Yes, and also across the MAS operations group business. The 90 per cent - sorry, it refers to the operations group across the MAS business.

PN554

How did the vast majority express the view that they did not want a collective agreement?---In a number of ways. Principally we engaged our employees through a series of focus groups to review the remuneration packages. Part of those discussions centred around the manner in which employees under what arrangement they were employed. Through those focus groups the majority, the vast majority indicated that they wanted to stay with individual contracts of employment and through the focus groups we, as in management, worked with employees to determine how the remuneration packages could and should be upgraded and that was done.

PN555

I see. Now, was there any other mechanism whereby the company ascertained the views of its employees that they did not want a collective agreement?---Well, there's that many - there's one other point I wish to make with respect to the 90 per cent of better and that is following those focus groups we sent out, as you are aware, revised letters of offer to employees and the vast majority of employees to whom those letters were sent accepted the revised TRP arrangements under a Commonwealth contract.

PN556

You regarded the fact of acceptance of those contracts as an indicator that people didn't want a collective agreement?---I and the company, for the company, accepted that people were satisfied with the way in which they were being remunerated and engaged as employees by the company.

PN557

When you offered those revised contracts, you didn't say - I'll withdraw that. The choice was, "Stay on your existing contract or move on to this new contract", wasn't it?---The contract - the method of engagement did not change. Some of the terms within the method of engagement, that is an individual contract, changed. Some of those terms related to remuneration.

**** PETER GREGORY BEST XXN MS HOWELL
PN558

Yes, I'm not asking about the terms, Mr Best, I'm asking about the choice which was provided to employees at that time and I'm putting to you that it was either, "Stay on your existing contract or move onto the revised contract"?---A letter of offer is a contract so, yes, could stay on the terms and therefore the remuneration package that they had or they could move onto the revised package that they had been - the employees had been part of developing.

PN559

Yes, and the revised package involved a salary increase, generally?---Generally, yes.

PN560

And it also involved some changes to the overtime provisions?---It involved clarity and changes to the overtime provisions. It also involved the provision of allowances for certain work activities.

PN561

So, broadly speaking Boeing regarded the revised contracts as offering improvements to terms and conditions?---Broadly speaking, yes.

PN562

And Boeing regarded the fact that employees chose to take improvements in terms and conditions as indicating that they didn't want a collective agreement?---Well, the response to the letters of offer that were provided following discussions with employees through focus groups, when the method of engagement of an employee was discussed was overwhelming. So, yes.

PN563

Boeing regarded the fact that individuals chose to move from one individual contract onto another individual contract offering improved remuneration as signifying that those employees didn't want a collective agreement?---Boeing considered that the employees had made their choice and were satisfied with their method of engagement and they wishes to stay with individual contracts.

PN564

THE SENIOR DEPUTY PRESIDENT: Mr Best, what proportion of the employees attended the focus groups?---It was a cross section. There were - in each focus group, Commissioner, there would have been 25 to 30 people across the business. Those persons were representing a broad cross section of teams from across the business and they were at employee, tradesman, supervisor, team leader type level, a fair cross section.

PN565

MS HOWELL: Mr Best, I put to you that an individual employee chooses to move from one individual contract to an improved individual contract tells you nothing about whether they prefer a third option altogether, which is not offered to them and that is a collective agreement?---You could put that to me. The conclusion that was drawn is that the employees were satisfied with the way in which they were engaged by individual contracts and as a result of focus groups there were changes - increases in most cases, to their remuneration.

**** PETER GREGORY BEST XXN MS HOWELL
PN566

The fact is, Mr Best, if they wanted a pay increase they have no choice but to accept the new individual contracts, did they?

PN567

MR DIXON: I object, your Honour. That is just a misstatement of the legal position and the position which the AWU was taking at the time. I object strongly to that question.

PN568

MS HOWELL: I press the question, your Honour. There's nothing misleading about it at all, in my submission.

PN569

THE SENIOR DEPUTY PRESIDENT: Can you repeat the question?

PN570

MS HOWELL: I put it to Mr Best that if employees wanted a pay increase they had no choice but to accept the individual contracts which were on offer.

PN571

MR DIXON: Your Honour, that question is fundamentally misleading. In the context of what had occurred and what was occurring bargaining notice, conduct with either the AWU urging people to go for the collective which is much more attractive than is what is said to be offered, in circumstances where a union is seeking a collective agreement employees know that, are being urged to reject it, to reject the employer's offer and go with the collective agreement and they then accept the offer from the employer. The question is fundamentally flawed to suggest that the employees had no option.

PN572

MS HOWELL: Well, I think my friend for signalling to the witness the appropriate answer.

PN573

MR DIXON: Well, I gave you the opportunity to withdraw your question.

PN574

MS HOWELL: Why should I withdraw it? Your Honour, I press the question. The - - -

PN575

THE SENIOR DEPUTY PRESIDENT: I think the question can be asked in context of what the company offered its employees. What Mr Dixon is referring to is a wider context which would be taken into account in giving weight to the answer that Mr Best gave to the question.

**** PETER GREGORY BEST XXN MS HOWELL
PN576

MS HOWELL: Indeed.

PN577

Mr Best, at the time that the offers were made in June 2005 - I'm sorry 2005, the company had made known its position that if employees wanted changes to their terms and conditions then those employees would have to accept the contracts which were on offer. That is so, isn't it?---If an individual employee accepted a revised - or the letter of offer, they would have received a pay rise and other entitlements.

PN578

And the company made no bones about the fact that they weren't prepared to enter into any other agreement or arrangement with the AWU?---The company's position has been consistent in that the company's position is that we wish to engage our employees on individual contracts.

PN579

Yes, and in that context it was clear, wasn't it, to those employees that if they were going to get a pay increase in the foreseeable future, the only way they could do was by signing on to those individual contracts.

PN580

MR DIXON: I object, your Honour. This witness can't be asked - - -

PN581

THE SENIOR DEPUTY PRESIDENT: It does seem to be same question, Ms Howell.

PN582

MR DIXON: And about what employees may have thought in the context of what was happened with the union.

PN583

MS HOWELL: The company's position was the only way those employees could get a pay increase was by signing on to those agreements?---The company made letters of offer, provided letters of offer to employees.

PN584

The company's position was that the only way those employees could get a pay increase was to sign onto those new contracts?---That may be your interpretation.

PN585

Well, Mr Best, I'm asking you for your interpretation. Is that true or not?
---Letters offer were provided to employees. It was up to the individual as to whether or not they wished to accept that letter of offer.

PN586

Mr Best, I'll repeat the question. The question was, from the company's point of view the only way that those employees could receive a pay rise was by signing on to those individual contracts that were offered in June or thereabouts?---That is correct because it was the only way they could. It's the only mechanism available.

**** PETER GREGORY BEST XXN MS HOWELL
PN587

Yes. Is there any reason why the employees would have misunderstood the company's position in that respect?

PN588

MR DIXON: I object, your Honour. It's simply speculation.

PN589

MS HOWELL: That you're aware of, Mr Best?

PN590

THE SENIOR DEPUTY PRESIDENT: It is speculative, Ms Howell.

PN591

MS HOWELL: Mr Best, did the company communicate to its employees its position?---The company communicated to employees in the operations group what the revised remuneration package consisted of, how it was constructed, the approximate timings for it to roll out and how it would be executed for individual employees.

PN592

That was at a stage where the company had already indicated it wasn't prepared to change its position on the collective agreement?---The company's position has been consistent for a long time on that matter.

PN593

Yes. The other matter on which the company relies to gauge the preferences of its employees is the focus groups which you referred to. Now, you have annexed minutes of those meetings or at least reports of them at PGB4. I take you to those if I can. Mr Best, is it correct that you attended the second but not the first of those two meetings?---That's correct. The second meeting is PGB5.

PN594

Can I take you to the first meeting of 29 April. First of all, who took this record of the meeting; are you aware of that?---I was not at the meeting so I don't know who took the record.

PN595

With respect to the Williamtown attendees, there are six people?---Correct.

PN596

Mr Parker is the management representative?---He is.

PN597

Who is Belinda Clements?---Mr Parker is the FA18 program manager.
Ms Belinda Clements is the Williamtown HR manager. The other gentleman, Mr Burgoygne Zade Fellis and Ilgin belong to the trades groups at Williamtown.

PN598

How is decided that those four in particular should attend the meeting?---I can't answer that question because I did not run the meeting.

**** PETER GREGORY BEST XXN MS HOWELL
PN599

You don't know what procedure Boeing or MAL follows with respect to selection of attendees at these groups?---Normally fairly open but I cannot give you an answer as to how the selections were made for this particular meeting. Just looking at that group, that is across that focus group, attendees from Amberley, Brisbane, Oakey and Williamtown, that's a very fair cross section of the operations.

PN600

Mr Best, I'm not asking you whether you think it's a fair cross section, I'm asking you about how the people are selected. If you don't know that then I'll move on?---I can't answer that.

PN601

Thank you. In any event, there are about four representatives of - I withdraw that. Four individuals who fall within the group which are the subject of this application?---From Williamtown?

PN602

Yes?---Yes.

PN603

You'll see - are any of those four either team leaders or supervisors?---Mr Fellis and Ilgin are currently team leaders.

PN604

Were they team leaders as at 28 April 2005?---I can't answer that. I don't know.

PN605

I see. It's possible they were in any event?---I can't answer that. I don't know.

PN606

You don't know whether it's possible?---I don't know if they were team leaders at that time.

PN607

How many team leaders do you have at Williamtown in that group?---In the operations group?

PN608

Yes?---I am postulating it would be in the vicinity of 10 across the operations, trades teams and the support group.

PN609

You're aware that the application before the Commission would not include team leaders?---I'd have to refresh myself on the application.

PN610

Well, you're certainly aware that the AWU application for - or endeavour to achieve a certified agreement would not include team leaders?---You're asking me if I am aware, is that your question?

**** PETER GREGORY BEST XXN MS HOWELL
PN611

Yes?---Once again I'd have to refresh myself on that application.

PN612

I see. In any event, numerically, assuming that those two persons were team leaders at the time, team leaders were significantly overrepresented?---Well, I have answered that I don't know if they were.

PN613

Yes, and I'm saying hypothetically if they were then it's clear that team leader were overrepresented?---That's your opinion.

PN614

And it's also a numerical fact, isn't it, Mr Best?---If the number that I gave you relating to the numbers of team leaders at Williamtown is in fact accurate - I said I was postulating.

PN615

Yes. Well, you wouldn't suggest that you had 50 per cent team leaders and 50 per cent other, would you, Mr Best?---No, I would not suggest that.

PN616

But you don't know how the other people were selected?---I have answered that question earlier.

PN617

So you don't know how representative those persons were of the group as a whole, do you?---Based on my knowledge of the group, as I said earlier, I believe it to be a fair representation of the cross section of affected employees in the MAS operations capability.

PN618

And you feel you're able to say that without even knowing whether two of the employees were team leaders or not?---Yes, I mean - I didn't say team leaders. I said a fair representation of the numbers of people across the group.

PN619

I suggest to you, Mr Best, that the only way in which truly fair representation could be achieved if there was a transparent selection process for those representatives?---I answered to you earlier that I was not aware of the way in which the selections were made.

PN620

Yes, well, I'll put the question again, Mr Best. I put it to you that the only way those people could be representative of the group would be if there had been a transparent selection process.

PN621

MR DIXON: I object, your Honour. It simply does not follow that that's the only way.

**** PETER GREGORY BEST XXN MS HOWELL
PN622

MS HOWELL: Well, he can disagree.

PN623

MR DIXON: Well, it's not a fair question.

PN624

THE SENIOR DEPUTY PRESIDENT: It's a fact.

PN625

MR DIXON: It's not a fair question. We're not playing games here, your Honour. If my learned friend wants to adopt that approach I'll be objecting more. It is just simply not a fair question to suggest to a witness it's the only fair way when it's clearly not.

PN626

MS HOWELL: As I said, your Honour, the witness can agree or disagree. That doesn't make it an unfair question and again I thank my friend for assisting his witness.

PN627

MR DIXON: I object to the insult from my learned friend. She asks an unfair question - your Honour, I'm entitled to object.

PN628

MS HOWELL: I press the question, your Honour.

PN629

THE SENIOR DEPUTY PRESIDENT: Yes, I'll allow the question.

PN630

THE WITNESS: Can you repeat the question?

PN631

MS HOWELL: Mr Best, I suggested to you that those persons could only be representative of the group if there had been a transparent selection process to select those particular individuals to represent the remainder of the group?---That is a reasonable assumption.

PN632

Now, did you familiarise yourself with the record of the first meeting?---I have read it, not today however.

PN633

You see that the issues are divided into two:

PN634

The issues related to the remuneration system that were considered during the meeting; and
(2) valid issues that were capture -

PN635

or "captured" I think that should read -

**** PETER GREGORY BEST XXN MS HOWELL
PN636

- for discussion at another time.

PN637

Do you see that?---I do.

PN638

And it appears that the two columns in the table below relate to those two dot points, do you see that?---I do.

PN639

One is "Remuneration System" and the other is "Others" and as far as "Others" go you'll see that the last dot point is:

PN640

The type of employment contract covering employees, eg. a collective is currently being sought by unions and some staff at Williamtown.

PN641

?---I see that.

PN642

So it would appear from this record that that issue at least was put aside for discussion on another occasion?---It would appear from this record, yes.

PN643

Now, with respect to the meeting that you attended, Mr Best?---PGB5?

PN644

Yes. Again, are you aware as to who took the record of that meeting?---The record was distributed by the aerospace support HR manager.

PN645

Someone who attended the meeting must have taken a record?---Yes, that would be a fair assumption.

PN646

Are you aware as to who that would have been?---I can assume that Mr Mark Brownsey, the aerospace support HR manager would be that person.

PN647

Now, this meeting is some weeks after the first meeting?---Yes, about three weeks, by the looks of it.

PN648

Yes. So you're aware as to whether Mr Fellis and Mr Ilgin were team leaders by that stage?---I'm not aware.

PN649

Obviously, it would appear that in substance - I withdraw that. The same people attended from Williamtown on each occasion?---That's what the record shows.

PN650

Yes, so presumably there was no further selection process of any sort between the first meeting and the second meeting?---That's a presumption.

**** PETER GREGORY BEST XXN MS HOWELL
PN651

It's a fair assumption, isn't it, Mr Best?---That's a fair presumption, yes.

PN652

Now, did you look at this record of the meeting at some stage after the meeting?---Yes, I did.

PN653

How long after the meeting?---I would suggest within days.

PN654

Were you content that it was a reasonably accurate reflection of what occurred at the meeting?---Yes, I was.

PN655

You haven't left any - you haven't - I withdraw that. There's nothing recorded in this record as to any discussion about preferences for collective vis-à-vis individual agreements?---Let me refresh myself with the minutes for a moment, please. Your question again, please?

PN656

There is no reference in the record of meeting to the issue of collective versus individual agreements?---No, there is not.

PN657

Now, you say at paragraph 56 of your statement, Mr Best, that you are confident that BAL's position in respect of the certified agreement at Williamtown will not alter irrespective of the outcome of the ballot. As you have acknowledged, ultimately the decision is the general manager's?---The managing director.

PN658

Thank you, the managing directors. Is it your understanding then that the views of employees at Williamtown on that issue are simply are simply irrelevant to the company?---On the matter of a collective agreement?

PN659

Versus individual contracts, yes?---If they were irrelevant we wouldn't be here today.

PN660

Well, in what sense are they relevant then, Mr Best?---They are employees who are entitled to hold a view.

PN661

Yes?---As individuals.

PN662

And from Boeing's point of view are they relevant or irrelevant?---They're employees to who are entitled to hold a view, individual view.

PN663

Mr Best, from Boeing's point of view are the views of the employees at Williamtown relevant or irrelevant to its position on collective agreements?
---They have been considered and Boeing's position is that we will stay with individual contracts, as has been evidenced by the response from the workforce, the vast majority of the workforce.

**** PETER GREGORY BEST XXN MS HOWELL
PN664

Let's assume, Mr Best, that the views of the employees changed and that 100 per cent of them did in fact want a collective agreement, would you say that would be relevant or irrelevant to Boeing's position?---That would be a point that would be considered by the senior management of the company.

PN665

And they would evaluate on the basis of that information whether or not to change their position?---And the value to the business of that position.

PN666

Yes. And to the extent that you express confidence that the position would not change, that's based at least in part on your understanding that 91 per cent of the employees or even more don't want a collective agreement?---No, that's correct.

PN667

In paragraphs 62 to 64 you talk about expectations that might be created amongst employees if they participate in a ballot. Now, if it be the case it would be possible for BAL to simply say, "Well, look, we're having this ballot but we don't think it'll affect our position" - that would be possible for you to say to your employees?---I believe it would be irrelevant to say that because our position has not changed.

PN668

Yes, I'm talking about the hypothetical of there being a ballot - in those circumstances it would be open to Boeing to say, "Look, we're participating in this process that the Commission has ordered but we don't anticipate that there'll be any change in our position irrespective of the outcome of the ballot"?---There would be a detailed communication to our employees.

PN669

Yes?---And I presume that that would be an element of that communication.

PN670

Are you telling the Commission that you don't think your employees would understand that proposition?---I didn't say that. They're your words.

PN671

They would understand, wouldn't they?---They would - we would provide them with a communication that could be understood, clear and concise.

PN672

And there would be no difficulty in composing a collect and concise communication to the effect that Boeing's position is not going to be altered by the ballot, should that be Boeing's position?---That is Boeing's position.

PN673

And are you saying to the Commission that your employees would have difficulty in understanding that position if it was put to them?---I did not say that.

**** PETER GREGORY BEST XXN MS HOWELL
PN674

I suggest to you, Mr Best, that they would have no difficulty in understanding that proposition at all?---They're intelligent people, technically competent and it is dependent upon the manner in which - constructed the communication and the manner in which it is delivered.

PN675

In paragraph 64 you refer to your concern that expectations may be created by the ballot which would then not be met. Now, what expectations are you referring to there?---The expectations relating to the outcome of the ballot may be created by the ballot and those expectations may not be met.

PN676

Can you be a little bit more specific, Mr Best, what type of - - -?---Well, I don't know what the ballot - - -

PN677

- - - expectations?--- - - - is going to be yet, so I can't, if there is to be a ballot.

PN678

Well, you were referring to something when you said expectations may be created. I'm trying to get you to be more specific about what you mean?
---Correct. I'm referring to the people.

PN679

Yes?---They understand Boeing Australia's position and that is we will employ our people using common law contracts. That position will not change. So, the - any outcome from a ballot will not change that position.

PN680

But you have the view that 91 per cent of your employees at least don't want a collective agreement in any event?---Correct.

PN681

So the outcome of the ballot in that respect couldn't create any expectations, could it?---Well, you're presuming the outcome of a ballot.

PN682

Yes?---You are, not me.

PN683

So you would concede that that figure might not be reflected in the ballot?---Not at all. I stand by that figure today.

PN684

You expect that that figure will be reflected if there was a ballot?---Once again, I can't, and or can you, discern how an individual may vote on the day if there was to be a ballot.

PN685

Mr Best, I'm asking about your expectations. You expect that that figure that Boeing has put around would be reflected in the ballot?---That's a reasonable expectation, yes.

**** PETER GREGORY BEST XXN MS HOWELL
PN686

And in that case no expectations could reasonably be expected to be generated, could they?---Other than why are we having this ballot amongst the workforce?

PN687

Well, that's not an expectation. That's a question, isn't it, Mr Best?---It is.

PN688

And it's possible, isn't it, that if 90 per cent or more of the employees voted against having a collective agreement, that might change the position of either the AWU or the striking employees?---I don't know.

PN689

And that would be a positive step, wouldn't it, Mr Best?---You're hypothesising.

PN690

Yes?---And I don't know.

PN691

The hypothesis which I have put to you, if it occurred, would be a positive step, wouldn't it?---If all Boeing Australia employees continued to be employed on common law contracts, yes.

PN692

No, but the proposition I was putting was that based on a result of 90 per cent voting against the collective agreement the AWU and the striking workers may reconsider their position. I'm putting to you that that would be a positive outcome?---That certainly - that could be a positive outcome, yes.

PN693

And in the event that the ballot showed a different result to what you expected, that is a large majority in favour of a collective agreement, well, Boeing would at least consider its position, wouldn't it?---I think I have answered that question twice before.

PN694

Yes. At paragraph 67 of your statement, Mr Best, you make some comments about the practical consequences of the holding of a ballot and the presentation which would be made to the relevant employees. You're assuming of course that the presentation would be held in work time?---Yes, I am, yes.

PN695

And Boeing has certainly put its position to its employees already on a number of occasions on this issue?---Through a variety of forms, one of which is the focus groups.

PN696

Yes?---But, as I said before, if this was to proceed there would need to be a clear and concise communication with our employees to engage them and inform them.

**** PETER GREGORY BEST XXN MS HOWELL
PN697

Yes. You have set out in your statement the reasons why Boeing is opposed to a collective agreement?---Correct.

PN698

Do you think that in your statement you have covered all the relevant issues?---To the best of my knowledge at the moment, yes.

PN699

So the material in your statement, to the extent that it deals with Boeing's reasons for not favouring a collective agreement is basically what you would want to reinforce with your employees?---Plus any other matters that are of relevance.

PN700

What sort of matters are you talking about now?---I don't know. I'm leaving it open.

PN701

So when you estimate it would take 2 hours to present those issues, is that because you're leaving some time to cover the issues that may arise that you don't know about?---Two hours is a reasonable block of time to get collected - people together as a group and inform them, present to them, and take questions.

PN702

And that's about a matter about which Boeing has already communicated its position on a number of occasions?---Once again, we would need to frame a clear and concise communication and provide that to our people.

PN703

Well, I suggest to you, Mr Best, that a clear and concise statement could be undertaken in significantly less than 2 hours?---That's your suggestion?

PN704

Yes. Do you agree my suggestion?---No, I don't.

PN705

I take it that having a number of your employees on strike over a lengthy period is somewhat disruptive to your operations?---It is disruptive from an employee relations perspective, yes, and also industrial relations perspective, yes.

PN706

And any steps that might assist in resolving that would - I withdraw that. Now, in paragraph 72 you talk about the difficulty of making a comparison between terms and conditions - I should say 72 and 73 - because the employees would not know what terms and conditions might apply if there was a collective agreement?
---That's the essence of those statements, or paragraphs.

PN707

Now, you understand that the question which the AWU is seeking is not with respect to the content of any agreement, but rather to ascertain the preferences of employees as to the form of regulation?---Correct.

**** PETER GREGORY BEST XXN MS HOWELL
PN708

And you understand that there are some - well, tell me whether you understand that there are some differences that will apply depending on whether an agreement is a certified agreement under the Workplace Relations Act or an individual contract?---No, I do not. I'm not an expert in that area.

PN709

I see. The employment contracts that you offer your employees, those contracts can be terminated at 4 weeks' notice?---I would have to read one of the contracts.

PN710

I won't ask you to do that, Mr Best. I'm taking you to paragraph 75 now. You say that in respect of attachment BCS10 to Mr Swan's statement:

PN711

The 1400 employees referred to are not employees of BAL. They are employed by different companies within the Boeing group in Australia.

PN712

?---Mm.

PN713

Now, the employees who are the subject of this application, are they employees of BAL?---Boeing Australia Limited.

PN714

Yes. And what's the relationship between Boeing Australia Limited and the other companies within the group to which you refer?---My knowledge, and it is not an expert knowledge, that we are part - we are a member company, if I can put it that way, of the - under Boeing Australia Holdings. There are other companies within that group.

PN715

So they would be wholly-owned subsidiaries?---I don't know.

PN716

Can I have a moment, your Honour. No further questions, thank you.

PN717

THE SENIOR DEPUTY PRESIDENT: Ms Howell, I have in front of me a document that you took Mr Best to, "Media Statements from Boeing Australia regarding the current industrial dispute at Williamtown" and there was a another document attached, a four-page document. Were you tendering that or - - -

PN718

MS HOWELL: Yes, your Honour, I'm sorry.

PN719

THE SENIOR DEPUTY PRESIDENT: - - - is it in the papers somewhere.

PN720

MS HOWELL: I did intend to tender that. That's not in the documents. I'm sorry, your Honour, I'm having memory lapses today.

**** PETER GREGORY BEST XXN MS HOWELL
PN721

THE SENIOR DEPUTY PRESIDENT: I think that should be marked.

PN722

MS HOWELL: Yes.

EXHIBIT #AWU2 MEDIA STATEMENTS FROM BOEING AUSTRALIA REGARDING THE CURRENT INDUSTRIAL DISPUTE AT WILLIAMTOWN

PN723

THE SENIOR DEPUTY PRESIDENT: I'm also having a memory lapse in that on the last occasion I started exhibits for the AWU using the initial H but I think we'll just proceed on the basis of how I have marked them this morning. I apologise for that.

PN724

MS HOWELL: Thank you, your Honour.

PN725

THE SENIOR DEPUTY PRESIDENT: Now, Mr Dixon, did you wish to proceed now or - I tend to think it might be appropriate if we gave everybody a break but if you're going to be very, very short in re-examination I'm prepared - - -

PN726

MR DIXON: I might be about 10 minutes, your Honour.

PN727

THE SENIOR DEPUTY PRESIDENT: Well, it's up to you and Mr Best's convenience.

PN728

MR DIXON: Would it inconvenience your Honour if I just finished off now?

PN729

THE SENIOR DEPUTY PRESIDENT: Certainly.

<RE-EXAMINATION BY MR DIXON [12.55PM]

PN730

MR DIXON: Mr Best, you were asked a number of questions about the focus groups?---Yes, I was.

PN731

Your evidence was that there was the first meeting of the focus group some time in April. Do you have any knowledge of whether union members or delegates of representatives were included in the focus group representatives?---I have knowledge in that I have been advised that two of the members from Williamtown, employees from Williamtown, are union members.

PN732

You have the meeting - sorry, the first focus group meeting occurred and you were asked about the minutes of that meeting of 28 April. Was there, to your knowledge, any follow up or discussions or report back to the sites following the first discussion group - focus group?---Yes, there was.

**** PETER GREGORY BEST RXN MR DIXON

PN733

Can you tell his Honour what that was and how it worked?---I was out in the country but my knowledge as it has been provided to me by the aerospace support human resources manager, Mark Brownsey, was that the people from the focus group went back to their various sites and teams whom they represented and provided those teams, individuals within the teams, a brief, if I can put it that way on what was discussed at the meeting - at the focus group and the outcomes of the focus group, relaying the information contained in the minutes.

PN734

Was there any role then to play - was the - when you tendered the next focus group meeting in May, did the focus group representatives come back with new information or feedback from the teams?---That was done - yes, they did. And that was done in two ways. Following the first focus group information was fed into the HR group on feedback from the various teams and individuals within the teams.

PN735

How did that work, do you know?---I believe it was done using the HR groups at sites and that information was collated and then sent to the aerospace support HR manager.

PN736

Right?---That then was assembled and so there was information gained from the first focus group from the teams. Then the individuals who came to the second focus group had opportunity to provide feedback or consolidate or expand upon information that had already been provided.

PN737

And so the focus group meeting that you were at in - on 16 May, I think it was, can you say from your knowledge of that meeting as to whether the representatives from each of the sites, Amberley, Oakey and Williamtown brought with them feedback from the teams that you describe?---Yes, they did.

PN738

To your knowledge were all the teams represented?---To my knowledge, yes.

PN739

Then following the 16 May focus group meeting was there a further process of dissemination of information or was it left at - - -?---Similar to the preceding focus group. Minutes were taken, information - the minuted information was provided to those who attended, the attendees then went out and briefed their teams, groups of teams, employees within teams, on the outcomes, and then information was fed back through the HR groups on site back to aerospace support HR manager and consolidated.

**** PETER GREGORY BEST RXN MR DIXON
PN740

So that following the second focus group meeting on 16 May feedback was again sought and obtained?---Correct.

PN741

What happened to all of that information?---That information was then reviewed and consolidated at the leadership level within aerospace support in consultation with employees or representatives to make sure that it was clear understood. Following that, redesigned remuneration packages or package, were developed and then that information was followed by formal briefings by the aerospace support HR manager to sites, to teams of employees at sites.

PN742

And so there then a team briefing about the changes that the company intended to introduce?---Correct. And during those briefings more information was gathered, feedback from the employees and finetuning the revised remuneration packages.

PN743

Those team briefings, did that involve just the focus group representatives?---No.

PN744

Or everybody?---No, the - as many people as - who were available were invited and did attend, of the relevant group.

PN745

At what stage was there a new offer of employment put out, before the team briefing or - - -?---After.

PN746

After the team briefing?---Yes.

PN747

You were asked some questions on employees on AWAs. Boeing has had the contract I think now for these sites for how long?---It varies between sites. Williamtown, if my memory serves me correctly, 5 to 7 years. Oakey was a transferred contract from Canberra, a number of years, 10 years, and we have been at Amberley for about 12 years.

PN748

Has Boeing utilised Australian workplace agreements, to your knowledge, as part of its offers of employment to .....?---Not recently, is my answer.

PN749

You were asked various questions and you mentioned that flexibility was an important factor for the company in the way in which it structures the form of industrial regulation. You have described to the Commission the manner in which you were able to change the focus group - sorry, change terms and conditions by discussion with the focus group process that was adopted. Is that ability to make changes in that fashion of any significance to the way in which you regulate - - -

**** PETER GREGORY BEST RXN MR DIXON
PN750

MS HOWELL: I object. There is a limit to which - to the extent to which the witness should be lead, in my submission.

PN751

MR DIXON: I haven't finished the question. Perhaps I can just finish the question.

PN752

MS HOWELL: Well, it's already clear that it was leading.

PN753

MR DIXON: Is there any - is it of any significance to Boeing to have the ability to make changes in the way in which you went about in the focus group discussion process? My learned friend, if she wants to press the objection - - -

PN754

MS HOWELL: It's a highly leading question, your Honour. I have been not objecting to most of the leading questions but that's taking it to a new level, in my submission.

PN755

THE SENIOR DEPUTY PRESIDENT: Yes, you proceed, Mr Dixon.

PN756

THE WITNESS: Could you repeat the question?

PN757

MR DIXON: Yes. In respect of the manner in which you went about changing the terms and conditions of employment through the focus group process that you describe, is that process of any significance to the company in the way in which it seeks to regulate the terms and conditions of employment?---Yes, it's - we wish to engage with our employees individually to understand what their requirements are so that the business can best accommodate the employees and execute the business requirements.

PN758

You were asked a number of questions in relation to how long it may take to disseminate information to your employees. Would you see a need, if the Commission were to make orders for a ballot, to address materials or information that the AWU put out to the site?---Absolutely. I would wish to be fully informed.

PN759

Why?---So that I could provide information - clear, concise, relevant, factual information to our employees.

PN760

And do you have any concerns about that process?---The dissemination of the information?

**** PETER GREGORY BEST RXN MR DIXON
PN761

Yes?---No. We would construct that as we did focus groups and other feedback briefings that we had continuously.

PN762

MR DIXON: Thank you, your Honour. I have no further questions.

PN763

THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Best, you're excused from the witness box and thank you for your assistance?---Thank you.

PN764

You may choose to be excused from the Court or remain in Court. It's up to you, thank you?---Thank you.

<THE WITNESS WITHDREW [1.05PM]

PN765

THE SENIOR DEPUTY PRESIDENT: We'll resume after lunch. Would 2 o'clock or 2.15 be most convenient? I understand there's another witness to be called.

PN766

MR DIXON: Yes, there is, your Honour. We're in your Honour's hands.

PN767

THE SENIOR DEPUTY PRESIDENT: Would 2 pm be appropriate? Very well, thank you, we'll adjourn till 2 o'clock.

<LUNCHEON ADJOURNMENT [1.06PM]
<RESUMED [2.03PM]

PN768

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dixon.

PN769

MR DIXON: Thank you. I now seek to call Valerie Staddon, please, your Honour.

PN770

MS HOWELL: Your Honour, it's probably appropriate as I indicated at this stage that we do object to the entirety of Ms Staddon's evidence.

PN771

THE SENIOR DEPUTY PRESIDENT: Yes.

PN772

MS HOWELL: And I would prefer that the objection be dealt with in the absence of the witness.

PN773

MR DIXON: Your Honour, I intend to qualify Ms Staddon to tell your Honour about the - ask her to tell your Honour about her experience and expertise and when I come to tender her evidence my learned friend can make her objection

PN774

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

<VALERIE KAY STADDON, AFFIRMED [2.04PM]
<EXAMINATION-IN-CHIEF BY MR DIXON

PN775

MR DIXON: Thank you, your Honour.

PN776

Ms Staddon, you are Valerie Staddon, your business address s 3042 Moggill Road in Bellbowrie in the State of Queensland?---That's right.

PN777

And you are the principal of a consulting firm called Staddon Consulting Services Pty Ltd?---That's correct.

PN778

You have - a statement has been prepared which attaches a report that you have provided to solicitors, Minter Ellison, and attached to that you have as attachment VS1 a curriculum vitae and I think also attached to your report are the - in think it's 6 October - some further details about your experience and clients and the like?---Yes, that's right.

PN779

I'd like to ask you some questions about your training and experience. You qualified with the degree of Bachelor of Science, Honours, in Human Resources Relations, in the University of Surrey in the UK in 1967?---That's right.

PN780

Would you tell her Honour what your major areas of study were?---It was joint honours in psychology and sociology, which covered all aspects of child psychology, industrial psychology, ergonomics, organisation psychology and the same for sociology. We also did some philosophy.

PN781

Following that study did you take up employment in 1967 with a firm in the UK?---I did. In those days you had to have a degree in psychology or sociology or a combination to enter the industry as a graduate market researcher.

PN782

So you then became a graduate market researcher?---Trainee.

PN783

Trainee - with a business in the UK?---Yes.

PN784

For how long?---I was with them for four years.

PN785

And what was the principal area of involvement or what type of work did you do?---Well, as with all apprenticeships, you did a bit of everything. You had to learn how to write questionnaires, you had to learn how to actually draw samples, had to go and do interviews, draft out reports and then when you'd done it all for long enough they let you do it for yourself on your own projects unsupervised.

**** VALERIE KAY STADDON XN MR DIXON
PN786

You said interviews, reports, questionnaires - with what purpose in mind?---Well, with assessing opinion and behaviour, what people were doing in relation to things. It was based in an advertising agency. A lot of the work we did was on communications, how advertisements or other marketing messages were being communicated.

PN787

During that period did you do any work in respect of assessing the product of the research that was carried out, market research?---I don't quite understand what you mean.

PN788

During your period as a trainee, did you carry out any work in assessing the product of market research once it was carried out?---In writing the report and evaluating, yes.

PN789

All right. You subsequently undertook a post graduate degree in education?
---Correct.

PN790

And you commenced in 1997 a Master of Applied Science in research?---Mm.

PN791

What is your particular area of study that you are undertaking in that Master's Degree?---I have had to put that on hold because I had some personal things that required it to be put on hold. But what I was looking at is in my work as a legal expert witness in community in the redevelopment area, I had had to work a lot with local councils which have been sort of like rural councils and they're now being urbanised and - so my thesis was that that the way the local councils were operating, it was very hard for them to make strategic decisions that went 20 years ahead with development. The size of the councils were really suited to the nature of the task. So that was what I was looking into.

PN792

And you have been a legal - or an expert witness on community opinion research, questionnaire design and sampling in the Queensland District Court and in the Liquor Licensing Tribunal since the early 1980s?---Mm.

PN793

And I think that carried on until - into the nineties, did it?---It carried on into the nineties and then the requirements of the District Court for planning matters slightly changed the requirements they had and they way they assessed community opinion change to public consultation.

PN794

What was the principal area upon which you expressed opinions in those cases?
---Well, I played two - well, sometimes I played only one role which was to go in and critique what had been done by the research companies.

**** VALERIE KAY STADDON XN MR DIXON
PN795

Critique what?---Community - reports on community opinion that had been undertaken by other people to say whether they did give a reliable view of that what particular community thought. In other instances, I not only did that but I went out and sought community opinion and presented my own reports to the Court.

PN796

And so the purpose would be, would it, to either assess the validity of views or opinions that had been obtained?---That's correct, yes.

PN797

When you went about obtaining the views or opinions of communities in respect of planning or licensing matters, what role did you play?---I would design the whole study so I would specify exactly what the sample would do. I would write the questionnaires and I would write the reports.

PN798

And then would you critique the value of the information you obtained - - -?
---Yes.

PN799

- - - in your reports?---Yes.

PN800

And I think you mentioned that you have given evidence before in industrial matters and you mention in particular some cases involving Dalrymple Bay Coal Terminal. What was the nature of your opinion evidence in that case, or those cases?---It was just the one case, Dalrymple Bay. It related to the issue of establishing community opinion in that case, again workers, at a particular site and how well a ballot would meet the needs of understanding the opinion of that community.

PN801

And so did you critique a particular ballot that was to be carried out - - -?---Yes.

PN802

- - - or had been carried out?---That was to be carried out.

PN803

All right. You then go on to say in your curriculum vitae that you have extensive experience in community opinion and community communications?---Mm.

PN804

Can you elaborate on that? I'm referring to attachment 1 to your statement?---A lot of the work that I have one has been really understanding how things are being communicated to people. So, for example, looking at messages that companies might be putting out in one way or another, about developing an understanding of what people take away from those messages. So that the sort of communications research I mean. Can you expand on that a little bit so that you - would you - what would actually assess, the value of the communication or the message conveyed by the particular - - -?---The Message conveyed and whether it did then have any value to the company, so you can get - people can come up with ideas about how they can communicate about products or services and they need to be tested to see if they're actually communicating what they say they're communicating.

**** VALERIE KAY STADDON XN MR DIXON
PN805

All right. Do you have - what level of experience do you have in making that sort of assessment or critiquing such communications?---Well, I suppose it's what I have doing on and off with different projects for over 30 years.

PN806

You say that you have also been involved in public consultation programs with what purpose in mind?---When they first changed the legislation to require public consultation I worked extensively with Lend Lease on market research for a very big new development that they're building. It's started and it's ongoing - north of Brisbane. After I handled all their market research which involved running group discussions and writing surveys and writing reports, they asked me to handle their public consultation program where I oversaw meetings of the public, I oversaw meetings of stakeholders, was in attendance at meetings with local councillors.

PN807

Did that role at all involve your assessing - obtaining or assessing the opinions obtained from public consultation?---Yes, I had to give my opinion on it, yes.

PN808

Now, you also mention as the third item there, "Qualitative and quantitative research". What is that referring to?---Basically in research you have two things you can do. One is qualitative where you use small numbers of representative people to fully investigate and explore ideas and issues, opinions and behaviours and quantitative is where you use representative large samples of people to establish the incidence of opinions and behaviours and whilst you might often only do one or the other in a full-scale study you would do both because you would use the qualitative initially to understand the language that your community or the people with whom you're talking use in relation to whatever topic is.

PN809

You mention further on as an example work you have done - or studies for the Australian Institute of Credit Union Management and Pharmaceutical Society of Australia to determine members' opinion. What did that relate to?---With the Pharmaceutical Society that was a case where - I have to be careful what I say because it's all confidential what I do, but really we were looking at how members of the Pharmaceutical Society were adjusting to the retail threat they were getting from the supermarkets and how they could revalue the knowledge they have within their pharmacies.

PN810

And what did you do in that regard? Did you form a questionnaire?---Wrote questionnaires and assessed the date when it had all been - come back.

PN811

What work did you do for the Brisbane City Council and will you give us a time frame for that?---In the mid-nineties they did a restructuring of the Brisbane City Council and I wonder tenders to work with the Department of Recreation and Health and they were re-evaluating their service offerings. And so I sat down with different sections of the community looking at the use of open space, attitudes towards dogs in a community, things like that and then I wrote reports and tendered that and they developed new policies and strategies towards those things, one of which was the introduction of dog parks in Brisbane which was new.

**** VALERIE KAY STADDON XN MR DIXON
PN812

Thank you?---But after that because I'd established a rapport with all - with various people there actually was restructuring going on and I was invited to run group discussions of workers within the department to ask how they felt about the restructuring and what their concerns were.

PN813

And in respect of that latter task, to what degree were you involved in formulating a question or questions for opinion and then assessing opinion?---I was responsible for it.

PN814

Now, you also ..... lecturing duties. Would you mind going to the very last page of your statement, which I think is the attachment to your actual report?---Yes, I have got it.

PN815

In which you express some of your professional involvement and you are an ex-Fellow of the Australian Marketing Institute but you also are a member of the Market Research Society of Australia?---Mm.

PN816

What does that society do?---The Market Research Society of Australia has recently changed its name to Market Research and Social Research Society of Australia. That is like the peak body for individual membership so anybody who is - considers them - a research professional, would belong to that. It is our professional body. It puts out journals. It runs conferences.

PN817

The Queensland University of Technology, you are an ex-member of the Advisory Committee of the School of Marketing, is that right?---That's correct.

PN818

And what did that involve?---Well, from the mid-eighties I used to go in and give lectures on market research but I was on the advisory committee when they were revamping their curriculums. The way research has been talked in marketing degrees has been changed considerably so I was on the panel with two other people who were in other academic institutions reviewing the curriculum for teaching of market research.

PN819

You also say you have been an expert witness on the community opinion research and questionnaire design and sampling - is that different from what you have just described?---No, no.

PN820

Or can you - - -?---No, that was what we were talking about earlier, yes.

**** VALERIE KAY STADDON XN MR DIXON
PN821

Did you teach with any other institute other than QUET?---Yes, I have given lectures over the years at the University of Southern Queensland which is in Toowoomba on market research.

PN822

To what - to students in what sort of - - -?---To students and to lecturers and we normally go and run workshops for lecturers and then the students the next day.

PN823

Now, on the second last page of your statement starting at the top which is under the hearing "Experience"?---Mm.

PN824

There are various matters set out and then there are a range of clients?---Mm.

PN825

For whom your firm has acting. Has that involved you acting for those firms?
---Yes.

PN826

In broad terms, are you able to say what the nature of the work is that you have done for those firms, by way of example for generally, whatever you're more comfortable with?---Generally - yes, do you want me to address a specific one or just talk in general?

PN827

Well, let's take the financial institutions for Elders, for example?---Okay. Elders Finance own a large shopping complex with apartment blocks on top of them in Coolangatta in Queensland and the centre - I think it's no secret so I'm not breaking any confidence to say it had a hard time staying viable. So they commissioned me to do a seven-stage study where we talked to initially the tenants, then we talked to the local community - and when I say "we", I did group discussions and interviews with them. And then I talked to stakeholders in the property and I talking to local councillors about what vision they had for Coolangatta. And then we - I used that information to write formal questionnaires and we did telephone surveys in the area of all those stakeholders again to quantify the findings.

PN828

Have you done that type of work for other clients?---Yes.

PN829

Within that category?---Yes.

PN830

Now, you have expressed your opinions in this matter in relation to a ballot in respect of employees employed by Boeing. Can you tell the Commission what - how your experience and knowledge and studying, which you have described, translates, if it does, to the particular areas upon which you have expressed your opinions in this worksite.

**** VALERIE KAY STADDON XN MR DIXON
PN831

MS HOWELL: I object to that question. It's not a question of qualifying the witness in any traditional sense as an expert witness. It's simply a question of asking the witness to give a self-serving response. The test for qualifying an expert witness is objective. It's not - it doesn't relate to how an individual witness reflects on the application of her background to the particular questions, your Honour. It's pushing beyond the acceptable limits, in my submission.

PN832

MR DIXON: I don't accept my learned friend's objection, your Honour, but perhaps I can just overcome it by asking a different question.

PN833

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN834

MR DIXON: Ms Staddon, in carrying out the report which you were asked to give for these proceedings, have you used the knowledge skills, training and experience you have described in your statement and as elaborated upon this afternoon, or have you used different skills and experience?---I have used the skills and experience from working in this area of establishing opinion behaviour over 30 years.

PN835

Can you see any difficulty in applying those skills - - -

PN836

MS HOWELL: I object. I object.

PN837

MR DIXON: Let me finish the question, if I may. This is not a witness who can be - your Honour, I'm entitled to ask my question.

PN838

I'll wait and ask the witness to - don't answer the question because Ms Howell is very anxious to put an objection, please, Ms Staddon. Do you see any difficulty in applying your knowledge and experience which you have described, to this particular question which you have been asked to address?---I personally don't have a problem with it in my professional life. There are only two aspects - - -

PN839

MS HOWELL: Your Honour - - -

PN840

MR DIXON: I'm sorry, hold on.

PN841

MS HOWELL: Your Honour, apart from the extremely leading form of that question again it's not relevant to qualifying the witness. I propose to take your Honour to the leading authority on expert witnesses which is the decision of the Court of Appeal in Makita. This line of self-serving questioning is not something which should properly be contemplated and particularly in the form of a leading question - self-serving as it was that was just asked of the witness.

**** VALERIE KAY STADDON XN MR DIXON
PN842

MR DIXON: Your Honour, my learned friend forgets that I'm dealing with an expert witness. Your Honour does not have to treat her evidence as whether she is qualified to give evidence in the Supreme Court as an expert. Your Honour can be guided by the witness's expertise, training and her opinion as to whether there's any difficulty in applying her general knowledge and experience to this particular question. In my respectful submission, that is a perfectly legitimate view to express in a context where your Honour is not bound by the rules of evidence and your Honour will make an assessment at the end of that.

PN843

THE SENIOR DEPUTY PRESIDENT: Yes. Proceed with the question.

PN844

MR DIXON: Ms Staddon, do you see any difficulty or shortcoming in your training or experience in order to be able - I'm sorry, I withdraw that. Did you see any difficulty in applying your knowledge and experience to the particular questions which you were asked to answer for the report in these proceedings?
---No.

PN845

And why was that?---Because the basis of my profession and my expertise is that there are only two aspects to assessing opinion and behaviour from other people, and that is asking the right questions and asking the right people the right questions. And from understanding how to ask the right questions and understanding who are the right people everything flows. So, in running my own business I have not made a differentiation between any community. It can be local people, it can be workers, it can be retirees, it can be trainers, it really doesn't matter. It's the same principles.

PN846

And when you say asking the right questions, what is the importance of asking what you say if the right question?---Well, you try and insure that - there are a whole load of principles involved in asking questions. The main thing you're trying to do insure that you have asked a question that people can understand that fairly represents the issue, it gives them the opportunity to answer the question in the way that sits comfortably with them and gives them all the information they need to give the opinion they're being asked for.

PN847

Okay. I seek to tender Ms Staddon's statement, please, your Honour.

PN848

MS HOWELL: I object, your Honour, and arising from what my friend has asked in respect of so-called qualification I would seek to ask a few further questions before making submissions on the issue.

<CROSS-EXAMINATION BY MS HOWELL [2.28PM]

**** VALERIE KAY STADDON XXN MS HOWELL
PN849

MS HOWELL: Ms Staddon, you don't have any qualifications in psychology, do you?---I have got a degree in psychology and sociology.

PN850

It's not a qualification which would enable you to practice as a psychologist?---I didn't go on to be a psychologist. I went on to be a market researcher and did 4 years apprentice for that instead of following the psychology route to become a qualified psychologist.

PN851

You would have had to take some further steps beyond the qualifications that you have in order to enable you to practice as a psychologist?---I think I would have had to do a 1 year's course to register when I did my degree.

PN852

And that was the degree that you finished din 1967?---Correct.

PN853

Now, when was the last time you gave evidence as an expert in Court proceedings?---I believe it was 1995 and that was in the Industrial Relation Commission, State and Federal in Brisbane.

PN854

That was the Dalrymple matter?---That was, yes.

PN855

And that was the only matter of an industrial nature that you have given evidence in?---Correct.

PN856

You make no reference in your statement to the Expert Witness Code of Conduct?--No.

PN857

Are you aware of the existence of an Expert Witness Code of Conduct?---No.

PN858

I see. And certainly you haven't considered its application in the evidence which you have given in this statement?---I have reviewed the evidence in the framework I was asked to as a professional in assessing community opinion.

PN859

Yes, and obviously you haven't had regard to the expert Code of Conduct in that respect?---No.

PN860

Thank you.

PN861

THE SENIOR DEPUTY PRESIDENT: Anything further, Mr Dixon?

**** VALERIE KAY STADDON XXN MS HOWELL
PN862

MR DIXON: I press the tender for the statement.

PN863

MS HOWELL: Your Honour, I'd ask that the witness leave the room for the purpose of the arguments.

PN864

THE SENIOR DEPUTY PRESIDENT: Yes.

<THE WITNESS WITHDREW [2.30PM]

PN865

MS HOWELL: Your Honour, I hand up a copy of the Court of Appeal decision in Makita - or rather I should say extracts from that decision. It's a very long decision. Your Honour, the starting point of our objection is to look at the questions which Ms Staddon was asked by Minter Ellison in their letter of 29 September - I'll come back to Makita after making a few observations on the questions which were asked.

PN866

In short, your Honour, our objection is that the evidence is overwhelmingly Ms Staddon's opinion based on an incomplete and biased set of instructions provided by Minters on issues which are not within her expertise or indeed within any other recognised field of expertise; and most importantly, on questions which the Commission is perfectly capable of determining for itself. We say beyond that that it has been shown that not only the instructions given were incomplete and biased but they were also inaccurate and inconsistent with the evidence given by Mr Best, your Honour. And on those bases we object to the evidence in its entirety. It's simply opinions of an unqualified person on matters best decided by the Commission and which the Commission is perfectly competent to decide.

PN867

If I can just ask your Honour to turn to the letter of instruction, which is BS2 to Ms Staddon's affidavit - statement.

PN868

THE SENIOR DEPUTY PRESIDENT: Yes.

PN869

MS HOWELL: It's page 4. We see it halfway down the page, the positions of BAL and the AWU have essentially remained unchanged since - and that is since 25 March when Mr Gray wrote to the AWU. It then goes on to say:

PN870

We are instructed that BAL will not change its mind and opposes this form of industrial regulation for any part of the MAS workforce.

PN871

And towards the foot of the page:

PN872

This industrial action has not led to any change in approach by BAL and you may assume it will not do so in future.

PN873

Across the page at page 5 - the letter of instruction purports to set out the AWUs position by setting out two paragraphs which we say do not fairly represent the AWUs position but it's a small extract from the AWUs position.

PN874

THE SENIOR DEPUTY PRESIDENT: That's the paragraphs marked 33 and 34, isn't it?

PN875

MS HOWELL: Yes, your Honour, that appears to be an extract from the AWUs submissions in this proceeding.

PN876

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN877

MS HOWELL: It then goes on to say:

PN878

Boeing's position is that the ballot will not in the circumstances prescribed above alter Boeing's position in relation to a collective agreement.

PN879

And then at dot point 2, towards the foot of the page:

PN880

Irrespective of the outcome if it proceeds BAL will not alter its position in relation to a certified agreement with the AWU as outlined above and cannot be held to do so.

PN881

One might think that Minters was labouring the point. And you'll note, your Honour, that there's no reference there to the AWUs fundamental contention in these proceedings that the position of the employee's in general is not known to Boeing, the relevant employees, and Boeing is making inaccurate assumptions about the views held by its employees. But to the extent that the instructions repeat the proposition that Boeing will not change its mind, we say that's simply inconsistent with Mr Best's evidence which was to the effect that if an overwhelming majority favoured a collective agreement, Boeing would consider its position. That's paraphrased, I know, but I submit that's a fair summary of what Mr Best said.

PN882

Then we turn to the questions which Ms Staddon is asked, and that appears starting from page 6. Question 1 is about the impact of the parties conducting a ballot jointly, that is, AWU and Boeing:

PN883

Would you please advise what assumption or perceptions will or may arise amongst the workforce because the proposed ballot is to be identified in this way with Boeing?

PN884

And we say that's a question which doesn't fall within any recognised area of expertise. If it fell within any it would probably be within the expertise of industrial psychology; we say not even that. But as Ms Staddon made clear, she was never qualified to even practice as a psychologist and her last formal qualification which had any psychology component had 1967.

PN885

Question 2 is similar in that it asks Ms Staddon to speculate on the expectations of the workforce if the result of the ballot is either a majority for collective agreement or a minority for a collective agreement. The same criticisms we say apply. It's not within any field of expertise. The Commission is perfectly able to assess those matters for itself and even if it was a proper field of expertise it's not one within which Ms Staddon is competent.

PN886

Question 3 has similar flaws but it has the additional problem that it talks about implications for changing remuneration in one part of the workforce vis-à-vis another part. Well, the question says nothing about terms and conditions of employment and indeed the choice between a collective and an individual agreement is not one which goes to substantive terms and conditions. So those assumptions to which Ms Staddon is referred by their nature mislead her and direct her into a particular form of answer which focuses unsurprisingly on the prospect of changed terms and conditions of employment, which is simply irrelevant to the matters before the Commission.

PN887

Question 4 starts to come closer to what Ms Staddon says she's an expert in which is the choice of whether the employees are provided with a choice but it's again fatally flawed because it focuses on particular terms and conditions rather than a form of industrial regulation which is what the question is about. It says, "Please advise" - I'll withdraw that.

PN888

On the basis of an assumption that the individual common law contract of employment referred to in the proposed question is a reference to employment arrangements in accordance with BAL's remuneration model, please advise.

PN889

Well, the assumption is simply wrong. The remuneration model, as Mr Best explains, simply means an all-in package of terms and conditions. You could have the same remuneration model in a certified agreement so to draw a distinction in that sense has simply mislead Ms Staddon and her response is correspondingly irrelevant and unhelpful, even if that was an area within her specialist expertise, and we say again that's a matter the Commission can fairly determine for itself.

PN890

Can I ask the Commission to turn to the decision of the Court of Appeal in Makita. True it is, your Honour, that the Commission is not bound by the rules of evidence as they apply to expert witnesses. However, certainly those rules would provide guidance. The question which would arise under section 79 of the Evidence Act is whether the specialised knowledge offered by a witness is wholly or substantially based on the witness's area of expertise; that is, the evidence given, the opinions given must be wholly or substantially based on a specialised knowledge which the witness holds.

PN891

In Makita the question was with reference to an expert giving evidence on whether steps were slippery and his Honour, Heyden J, at paragraph 58 commenced a lengthy review of the principles applying to expert evidence. At paragraph 59 he says:

PN892

For Professor Morton's report to be useful it was necessary for it to comply with the prime duty of experts in giving opinion evidence to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions.

PN893

You get no hint of that in Ms Staddon's report. His Honour then goes on to assess the various authorities making good that proposition. It's page 730, paragraph 60, his Honour, Heyden J, refers to the case in Jenkins ex parte Morrison, where Fullagher J said:

PN894

An expert must explain the basis of theory or experience on which the conclusions stated are supposed to rest.

PN895

And said:

PN896

Courts cannot be expected to act on opinions the basis of which is unexplained.

PN897

Well, with respect to question 1, question 2 and question 3, where was the explanation as to what expertise Ms Staddon relies on to say how - what assumptions or perceptions may arise amongst the workforce? We would respectfully say none whatsoever.

PN898

In paragraph 61 Heyden J refers to and discusses the decision in R v Guilfoyle and he says that:

PN899

The Court had under consideration a psychologist who was an expert in the systematic analysis of human behaviour called to give an opinion that a deceased person whom the ...(reads)... identify no criteria by reference to which the Court could test the quality of his opinion.

PN900

Again we say that that's applicable here. There's further discussion of the need for the witness to provide a basis by which the Courts can evaluate the witness's own opinion, something which is not done here, and at page 733, following that discussion, it's said that:

PN901

Underlying these observations -

PN902

and this is at point 7:

PN903

- is an assumption that the trier of fact must arrive at an independent assessment of the opinions and their value and this cannot be done unless their basis is explained.

PN904

Well, as far as we can see, there's no basis except Ms Staddon's speculation based on the instructions given. The point is made again at paragraph 71 where it's said that:

PN905

Examining the substance of an opinion cannot be carried out without knowing the essential integers underlying it.

PN906

So what you really need to have, your Honour, is a recognised body of expertise and some principals emerging from that which can give the witness a basis to say, "This is what will happen" in circumstances where the Commission can then make its own evaluation as to the reliability of that evidence. Your Honour, we rely on the whole of that analysis. I won't take the Commission to any further passages but we say - just one further passage I'll take your Honour to at page 744. Again, starting at line 3:

PN907

The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached, that is, the expert's evidence must ...(reads)... based applies to the facts assumed or observed so as to produce the opinion propounded.

PN908

And quoting from the Full Court of the Federal Court with approval, in the case of Ocean Marine, paragraph 22 of that decision of the Full Court of the Federal Court, about halfway through that paragraph:

PN909

Thus it is not permissible to conclude simply because a person expresses an opinion on a particular subject referring to particular technology that that person has any specialised ...(reads)... be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached.

PN910

Et cetera. Your Honour, we say that this evidence doesn't come close to meeting that test of providing the Commission with criteria by which it can evaluate the evidence. Ms Staddon doesn't have expertise in a relevant area to deal with questions 1 to 3 in particular and added to that is the complication that Ms Staddon has not read and had regard to the Expert Witness Code of Conduct which is a mandatory requirement in jurisdictions in New South Wales and the Commonwealth as of recent years certainly. And the nature of that Code of Conduct is to direct the witness's attention to the fact that their duty is to the Court rather than to their client, your Honour, and it's apparent from Ms Staddon's report, we would say, that that consideration has not been one which she has had regard to.

PN911

There is nothing to be found in the questions which are directed to Ms Staddon that require expert evidence and there is nothing in those questions about which the Commission could not properly come to a conclusion itself. Finally, the nature of the instructions given being incomplete, selective and inaccurate mean that the Commission is in fact in a better position than Ms Staddon to reach conclusions on those matters, your Honour, so we would submit that Ms Staddon's evidence would be rejected in full.

PN912

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dixon?

PN913

MR DIXON: Your Honour, an expert witness's expertise or specialised knowledge may of course be based on experience. That aspect has been dealt with in some other cases and a good example of that is the Australian Securities & Investments Commission v Vines [2003] NSWSC 1095; (2003) 48 ACSR 291 - I have a copy. It's a Supreme Court of New South Wales decision which looked at section 79 of the Evidence Act. It is of course a common law equivalent, and you'll see just by looking at the headnote that his Honour Austen J emphasised by reference to other cases that the phrase, "specialised knowledge", which is a phrase used in respect of section 79, was not restrictive and while it might formally acquire by a course of training, it might also be based upon experience.

PN914

The first point we would want to make of course is that your Honour is not bound to apply the strict Evidence Act provisions in the Commission. The Commission regularly accepts opinions and views of experienced industrial practitioners, for example, about the likely outcome or the likely consequences of a particular set of circumstances. Those opinions are accepted by the Commission as opinion evidence, not by any code of conduct - by reference to any code of conduct, not by reference to any specialised knowledge or training. But our submission is that Ms Staddon's qualifications and experience go well beyond the situation where the Commission would accept an opinion and act on an opinion on a number of occasions from for, example persons who practise in the industrial context.

PN915

The debate about what is the expert knowledge of, specialised knowledge and the like you will see picked up further in the judgement. I don’t - I can just draw your Honours attention to what his Honour said at paragraph 9 and then 11. Also in 14 where there is a reference to earlier High Court decisions and what was said by Gaudron J in Velevski, paragraph 15. We don't need to go as high as the High Court or Federal or Supreme Court go on whether the opinions expressed are of assistance to the Commission. May I illustrate our point further by taking your Honour back to the decision of the Court of Appeal in Makita. If your Honour goes to paragraph 85, his Honour Heydon J in that part of the judgment - - -

PN916

THE SENIOR DEPUTY PRESIDENT: Sorry, what page is that?

PN917

MR DIXON: It's at page 743. His Honour says:

PN918

There must be identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience the witness has become an expert.

PN919

In my submission the evidence today establishes very clearly that this witness has detailed knowledge of critiquing questions or questionnaires and/or formulating questions which are designed to ascertain opinions, or to obtain opinions of the target group of any value.

PN920

That's what the ballot is, and if I continue:

PN921

The opinion profit must be wholly or substantially based on the witness expert knowledge so far as opinion is based on facts ...(reads)... must be identified and proved in some other way.

PN922

That's not an issue that goes to the expert's report or the expert's opinion. That's a matter that the Commission will ultimately weigh. The expert opinion is formulated on facts in this case that have been profit and assumed and of those assumptions the opinion is expressed. If at the end of the day the Commission comes to the view that those assumptions are flawed or are not made good and they are relevant to your Honour's decision, that is a separate matter. It's then said:

PN923

It must be established that the facts on which the opinion is based form a proper foundation for it -

PN924

et cetera. That's the same point. His Honour then went on to say:

PN925

And the opinion of the expert requires demonstration or examination of the scientific or other intellectual basis ...(reads)... so as to produce the opinion propounded.

PN926

May I illustrate that point specifically, for example, by reference to question 4. Question 4 that was asked of Ms Staddon asks the issues in relation to the proposed question and she certainly provides the criteria by which she has judged the view. First of all, she states the proposition or the principle in the first dot point and then it's followed by:

PN927

One looks for bias, incompleteness, precise and clear explanations or misleading material.

PN928

Each of those propositions are then applied to what is profit and the question of bias is a good example, your Honour, where the witness indicates that the question, "Do you want something as opposed to something?" is clearly one that's got an inherent bias attached to it. That is from someone who has experience in drafting and assessing the relevant questionnaires in a wide range of areas which are designed to obtain qualitative information from a target group. In a similar way, the criteria which I referred to in the earlier part of Heydon Js decision I've dealt with at least in relation to paragraph 4 in that fashion.

PN929

It's not open to my learned friend simply to say that because Mr Best gave evidence about a position today, your Honour would not accept the expert's report. That is a fundamentally flawed approach. Your Honour would assess the expert evidence in the light of a statement which, to a degree, if it is accepted, qualifies one of the assumptions that have been made. It's not a basis for simply saying that your Honour would not receive the report.

PN930

In relation to a suggestion that the question there or the ballot that is being sought here is one simply about the form of industrial regulation and not the content, your Honour, that submission is one that your Honour will no doubt later assess, but your Honour will no doubt have to assess that in the context of a situation where it cannot possibly be said that the target group has not already been substantially influenced by the situation. It would be impossible for your Honour to separate out the AWU publications which clearly hold out better superannuation, better leave, claim that a collective agreement would grant better security, claims, albeit in a misleading fashion, that the collective agreement provides unfair dismissal whereas the common law contract does not.

PN931

All of that material cannot be separated out from the factual position in which the target group is being asked now to form an opinion. One can't, in my respectful submission, criticise a witness for saying - you've got to make the assumption on an entirely hypothetical basis which seeks to rewrite the history of the union in particular making a claim of that nature. You know from the evidence that was given by Mr Swan this morning that the AWU has said that it wishes to use the information sessions to disseminate the type of comparison that was to be found in the document that contained that comparison to which I took him in cross-examination this morning.

PN932

It is impossible for our learned friend to say that the ballot is going to take place simply by way of a form of industrial regulation in abstract, without content, when that content has been fed by the AWU and has been fed in a way which promises, through a collective, yet unknown, not fully articulated terms and conditions which it hopes might be achieved if there were to be an agreement and if the particular terms are agreed upon. That is why the witness is expressing those fears.

PN933

That criticism in each of the questions where the issue is raised, that the content of what is sought by the certified agreement is not fully raised, can't be sustained. For all those reasons, your Honour, we submit that your Honour should accept the evidence.

PN934

THE SENIOR DEPUTY PRESIDENT: Do you want to say anything else, Ms Howell?

PN935

MS HOWELL: Only one thing, your Honour. The case which is cited in Makita at paragraph 84 is the High Court decision in HG v Queen and at paragraph 43 of that decision Gleeson J again cited Clarke v Ryan about the expert witness in that case. The evidence the defence sought to lead from Mr McCombie really amounted putting from the witness box the inferences and hypotheses on which the defence case wished to rely. That's exactly what we have in this case and, of course, Mr Dixon hasn't touched upon questions 1 to 3 in particular because that is the very inferences and the suppositions which are invited from Mr Best's evidence and from Ms Staddon's evidence are those speculative conclusions which we find, your Honour.

PN936

THE SENIOR DEPUTY PRESIDENT: As both parties have noted the Commission is not bound by the rules of evidence. I indicate now that I entertain doubts as to whether the nature of the instructions given to the witness does constitute a body of evidence to allow me to test the reliability of her evidence. However, I'm prepared to allow the evidence on the basis that insofar as her opinion is based on assumed or accepted facts, that they will be identified and weighted in the context of the body of evidence in this matter.

PN937

I form that view on the basis that there's evidence before me that Ms Staddon has 30 years' experience, particularly in relation to how people communicate and assessing the message conveyed by communication and whether that has value and with respect to the questionnaire design and sampling and that that can translate to a ballot of employees which tends to test or measure their opinions. I indicate also, however, that I also have doubts at this stage with respect to the value and the scope of questions 3 and 4 and whether they do in fact go beyond the questions that the AWU has set out in its application for orders.

PN938

They're tentative views but I give some indication now to the parties and we'll proceed on that basis.

PN939

Thank you for waiting, Ms Staddon, you're back in the box and you're still under oath.

<VALERIE STADDON, ON FORMER OATH [3.07PM]

PN940

MR DIXON: May I tender the statement, please, your Honour?

EXHIBIT #B6 STATEMENT OF VALERIE STADDON
<CROSS-EXAMINATION BY MS HOWELL, CONTINUING [3.07PM]

PN941

MS HOWELL: Ms Staddon, can I take you first to your statement which was signed by you on 7 October. That's the covering statement in effect?---I've got one signed on the 6th, I'll just find it. Yes.

PN942

You say at paragraph 5:

PN943

All facts deposed to in this affidavit are from my own knowledge, save those that are deposed to from information only and my means of knowledge and sources of information appear on the face of this my statement.

PN944

First of all, can I ask what facts were deposed to from your own knowledge?
---What facts were deposed to from my own knowledge?

PN945

Yes?---Well, I took that to mean the facts of my understanding of how to get opinion.

PN946

Can you point to any specific facts that you're referring to there?---Well, in terms of where I critiqued the question in terms of its content, I believe that I've expressed facts in terms of principles of questionnaire design.

PN947

Can you just point me to one of those facts. I'm having a little trouble understanding what you mean by facts?---When it says:

PN948

All the facts deposed to in this affidavit are from my own knowledge

PN949

I took that to mean that. When I say things like:

PN950

When designing a question to assess opinion a number of principles are employed to ensure that the question is meaningful -

PN951

that are the facts that come out of my profession.

PN952

When you say facts, you mean your opinion as to how surveys should be conducted?---My opinion based on my profession, yes.

PN953

Where you talk about:

PN954

Save those that are deposed to from information only and my means of knowledge and sources of information appear on the face of this my statement.

**** VALERIE KAY STADDON XXN MS HOWELL
PN955

Is that a reference to the instructions you received from Minter Ellison?---That's what I took it to mean, yes.

PN956

You obviously were provided with this and that was your understanding?---Yes.

PN957

There wasn't any other source of information for the facts on which you based your opinions?---No, apart from an initial briefing meeting.

PN958

You had a briefing meeting?---Yes.

PN959

With whom?---Daniel Williams from Minter Ellison and a Boeing representative.

PN960

They told you what they wanted you to do?---No. They gave me an overview of what was happening and then they said they would submit a brief. In that I believe the only information I was given that wasn't written down subsequently in the brief, related to the number of people employed at Williamstown and Amberley.

PN961

Did you take any notes of that meeting?---I took a few, yes.

PN962

Do you have them with you?---I do.

PN963

I call for those notes?---They're not like legal notes.

PN964

If I could just have a look at them, Ms Staddon?---Yes.

PN965

Thank you. Was this the first engagement that you'd had on behalf of Boeing?
---Yes.

PN966

Certainly Boeing made no secret of the fact that they did not want to proceed with the ballot which is under consideration in these proceedings?---Could you repeat, please, that word you said?

PN967

Boeing made no secret of the fact that they did not want to proceed with the ballot that is the subject of these proceedings?---I don't recall Boeing saying that at all. I recall Daniel Williams saying to me they wanted me to critique the thing. I can honestly say I haven't heard anybody from Boeing say that to me directly.

PN968

They told you that in no circumstances would their position alter as a result of the ballot?---Yes.

**** VALERIE KAY STADDON XXN MS HOWELL
PN969

Did you infer from that that they did not wish the ballot to proceed?---Yes, I did but what I said before was a truthful answer. I didn't use the language - - -

PN970

I'm not disputing that, Ms Staddon?---Yes, okay. That's fine.

PN971

In any event you understood that Boeing didn't wish to proceed?---Yes.

PN972

You gave some evidence before about your history in the area of eliciting and evaluating opinions about different issues. A part of your report in this case deals with the impact of that process on the views of the participants, as it were?---Yes.

PN973

And indeed the non-participants?---Correct.

PN974

Have you ever done work before expressly focusing on the effect of the research on the participants?---Well, it is an aspect of all research that I canvass when I'm working with new people because there's always an impact doing research and I can give an example, if you like, of where I have gone back to the client and said I thought the research was ill advised because of the impact on the clients.

PN975

Have you ever been asked specifically to do such a piece of research, that is evaluating the effect that questions might have on individuals?---I haven't ever been asked that specifically to go and do that research, but that's part of my brief, is to say, "How can we research this?" and if I feel in assessing the situation that the research is not going to have a good outcome on the participants I will say, "I wouldn't be doing this at this time."

PN976

In order to make such an assessment, first of all it would be in respect of research you are developing yourself?---Yes.

PN977

You would certainly have to have comprehensive and accurate information about the circumstances of the target group that were the subject of the research in order to make that assessment?---Well, fairly much so but human behaviour and human reactions are much the same and I have been in situations where I've been involved in research with employees and I have seen the outcome very clearly of creating the problems that can be created simply by doing a research process or finding out opinions.

PN978

As far as benefits to the different parties are concerned, there are obviously a lot of variables involved in that?---Yes.

**** VALERIE KAY STADDON XXN MS HOWELL
PN979

One of those would be, for example, if employees thought that their views currently were misunderstood, then that would be a factor which would enter into that equation?---If employers did, did you say?

PN980

No, employees?---Employees did, yes. .

PN981

Or if there was a dispute about what the true views of employees were, that would be a factor which would - - -?---That would be one factor, yes.

PN982

As a general proposition, Ms Staddon, you would be critical of simple processes which involved yes or no or basically simplistic options. Is that a correct summary of your views?---Yes, basically. I think that if you truly want to assess the opinion, yes and no often forces people to give a more definitive answer than they might want to. So for example, if you go and talk about developments to people, you usually say - you give them the options of yes, no, don't know and even don't care, it doesn't matter to me.

PN983

Certainly, you're aware that in some circumstances those kind of options of necessity have to be used?---Of necessity, yes.

PN984

Indeed, a referendum would be an example of that generally?---I haven't been too successful.

PN985

Yes, I still remember the Republican example. For example, if a certified agreement was being sought then the individuals who are covered by it generally under the Act would have to nominate yes or no to approve the agreement?
---Well, if that's the case, yes, that's the case but presumably at that stage they would know what the agreement was they were being offered.

PN986

You're probably not familiar with the terms of the Workplace Relations Act, I take it?---No, I'm not. That's not my forte.

PN987

You're certainly familiar with the questions which the AWU is seeking to ask in these proceedings?---Yes.

PN988

You understand that in the first question, broadly speaking and leaving aside the issue of AWAs, people are being asked whether they prefer a collective agreement as opposed to individual contracts?---That's broadly speaking what it says, yes, but it doesn't actually say that because it does include workplace agreements.

**** VALERIE KAY STADDON XXN MS HOWELL
PN989

Yes, I understand that. You've taken the view in the course of giving your opinion, that - this is not critical at all, Ms Staddon, but you've taken the view that reference to individual contracts in this case is a reference to the company's total remuneration package?---Yes, and my point is more that it is open to interpretation, that's it's not specific enough. If it's not meant to be that, it doesn't say it's not meant to be that and if it isn't meant to be that, who will say it is.

PN990

It would obviously depend on what people understand by the words "individual contracts"?---Yes, and that's - my point is that you cannot assume that you know what each of the workers individually thinks it means and therefore you have to spell it out so you can at least be sure that you've given the same definition to everybody.

PN991

That would depend, to a large degree, on the extent to which those issues have been canvassed already amongst the workforce, wouldn't it?---Well, not necessarily. If I have to work with the results of any gathering of opinion, the general rule is that you make sure that you have controlled what you can control and the principle is that you put the information in on the questionnaire where they're going to be answering the question so that you've minimised the chance that they're working on false assumptions. You can never, of course, eradicate it because people may not read the whole question, but at least you've done your level best to be certain they have the correct knowledge in front of them when they read the question.

PN992

You've assumed that collective agreement means the TRP, in effect, the total remuneration package. If your assumption in that respect is not correct, then certainly some of your views as expressed in the opinions that you've put in writing would have to be considered further?---I'm sorry, I just need to clarify this. The collective agreement certified under the workplace - I thought that was the certified agreement. I thought they were mutual, they were terms for a similar thing, as opposed to individual common law contracts of employment, which is what they currently have with the total remuneration package.

PN993

You've assumed for the purpose of your advice, your opinion, that individual common law contracts, those words are, in practical terms, synonymous with the words "total remuneration package"?---I have assumed that's what they're referring to but it's not synonymous, it's open to misinterpretation.

PN994

Indeed, can I suggest to you, Ms Staddon, that individual common law contracts is a term which has general understanding in the industrial relations community at least?---Well, that may well be the case but you cannot presume that every employer - every employee understands exactly what's meant by that. That's my whole point that we can't presume so I accept that you're saying that in the expert world of industrial relations it would be clearly understood.

**** VALERIE KAY STADDON XXN MS HOWELL
PN995

Whether the employees concerned understand depends on what they've been told, doesn't it?---Yes, it depends on what they've been told, but if you want to know their opinion and want to be sure you understand what they know by it, you should spell it out for them at the time they're answering the question.

PN996

Persons who are engaged on individual common law contracts, in fact you would expect they would have a higher level of knowledge as to what actually that means than persons in the community generally?---Yes, but if they've all just - I don't know if there is a big distinction between - is there a distinction between your common law contract and the total remuneration package that they've signed, the Boeing employees?

PN997

Well, you don't know, and I think we'll just leave it at that, Ms Staddon?---Well, I'm - I'm assuming - I'm saying I wouldn't assume that everybody was clear on what was meant so my point is simply clarify it so that every - you can be sure everybody has the best chance of being clear.

PN998

As I've put to you that would depend again on both the individuals' experience and the information they were provided with?---Yes.

PN999

Just taking you to your substantive report, Ms Staddon, you deal in question 1 with what assumptions or exceptions will or may arise amongst the workforce because the proposed ballot is to be identified with ..... and the first thing you say is:

PN1000

Remembering that some employees associated with the AWU have been on strike for over three months, there would be resentment that not only had a minority disrupted the workplace - - -

PN1001

First of all, what's the basis for saying that a minority has disrupted the workplace?---Well, I was given to understand that about 28 people have been on strike for about three months.

PN1002

When you say "given to understand" can you be more specific about that information and the source of that information?---That information came from the initial briefing meeting I had at Minter Ellison before they gave me the written brief.

PN1003

In terms of a conclusion that the majority or other employees might resent the fact that some people had taken strike action, it's equally possible, isn't it, that those other employees might sympathise with the strikers but might simply not be able to afford to take strike action themselves?---That is a possibility, but my sentence says:

**** VALERIE KAY STADDON XXN MS HOWELL
PN1004

There would be resentment that not only had a minority disrupted the workplace but that BAL was prepared to support further action, even though the majority of its total workforce had recently accepted the firm terms and condition.

PN1005

So that's not to discount what you say. There may well be some people who are sympathetic with the strikers.

PN1006

Assuming that some of the workers who are still at work were sympathetic, then they would also be sympathetic to further action, wouldn't they? That would be a fair assumption?---Yes, they may be.

PN1007

You have got no basis for assessing either way whether the remaining employees who are at work (1) resent the strikers or (2) support the strikers but can't afford to take strike action themselves?---No. I'm suggesting that from my experience of talking to employees, most people do not like to have their workflow interrupted and to interrupt it for a ballot and to be dealing with something different. I think I have seen these things create resentment.

PN1008

When was the last time you made an assessment of the effect on the workforce of a strike?---I haven't made an assessment on the workforce of a strike. I have seen when people's workflow has been disrupted by stopping for meetings, by discussions going on, by people being taken out of the workforce to do training and leaving other people to carry on with the full workload.

PN1009

THE SENIOR DEPUTY PRESIDENT: Ms Staddon, you mentioned the word "ballot", disruption of the workforce due to a ballot. What experience have you got in the workforce being disrupted by the conducting of a ballot of all employees?---Well, I don't mean simply in terms of the mechanisms of completing a ballot, I mean in terms of the fact that it will be talked about, there's proposed meetings for it, the whole - the whole topic around it creates - - -

PN1010

No. The question was, what experience have you got?---I don't have experience of a specific - - -

PN1011

Because you did mention disruption of the workforce over a ballot?---I don't have specific experience of that.

PN1012

They're your words and I'm just asking you to explain to me the basis upon which you form that view?---I don't have specific experience of a ballot. I do have specific experience of seeing workers who have their workflow disrupted by changes in what goes on.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1013

But isn't your evidence that the minority have disrupted the workplace because of their strike action?---I'm saying I believe that's how other people would see what they have done and that's based on my experience of seeing how people react.

PN1014

So there's two forms of disruption, one is the resentment that's caused by the industrial action and the other is the disruption caused by the conducting of a ballot?---Yes.

PN1015

Thank you.

PN1016

MS HOWELL: You would agree, Ms Staddon, that with respect to the response of employees there are a very large number of variables involved in that assessment?---I'm sorry, could you rephrase that?

PN1017

I'll ask it again. With respect to the reaction of employees, and this is in the context of question 1, dot point 1, there are a very large number of variables involved in making that assessment?---Yes.

PN1018

Certainly, there are a number of those variables about which you have no knowledge?---Yes.

PN1019

In the second dot point under question 1 you say:

PN1020

I understand that BAL has already apprised its workforce that it will not negotiate for a certified agreement and has committed to maintaining the remuneration model for all sites and employees.

PN1021

For the purpose of this advice you have assumed that the certified agreement and the total remuneration model are inconsistent alternatives?---Yes.

PN1022

What do you understand the total remuneration package model to be?---I understand it to be a model that Boeing uses to organise individual contracts with employees with the difference being that they are negotiated between employee and Boeing, whereas a collective or certified agreement is negotiated by the unions on behalf.

PN1023

The only distinction that you're able to make is the manner in which negotiations are conducted or the parties with whom negotiations are conducted?---Well, that's the most obvious one, yes. I don't know about the terms and conditions.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1024

Are you aware of any other distinctions?---No. I don't know about the terms and conditions.

PN1025

If that's the only distinction that you can identify, why then would it be difficult for the employees to make the distinction between a certified agreement and a common law agreement which you understand to be the total remuneration package. It's basically the difference between collective negotiation and individual negotiation?---I'm sorry. That's not quite what I said. I didn't say they wouldn't be able to understand it. I said if I wanted to be certain that I had canvassed their opinion accurately about what each of those options were, I would state absolutely clearly what each option was on the questionnaire.

PN1026

As far as you're aware, the only distinction between those two options is, one is collectively negotiated and the other is negotiated with the individuals?---Yes.

PN1027

It wouldn't be hard to put that on a questionnaire, would it, if that was accurate?
---That wouldn't be hard to put on a questionnaire, no, if that was the sum total of what it was.

PN1028

Have you proceeded in your advice on the basis that that's the only distinction between the two options?---Well, I haven't asked about the details because the details don't matter to the principle of what I'm saying, is that whatever the ramifications are need to be there. The question is asking, "Do you want this as opposed to that?" which they have some problems with anyway, but they don't - they may say that's what they want but they don't then get it if the ballot says, yes, that has to be negotiated. So it's not - they already have the total remuneration package and most people have signed a contract saying they're happy with that, so.

PN1029

I'll stop you there, Ms Staddon. Where do you get the information that people have signed a contract saying they are happy with that?---Well, they've signed to accept the terms and conditions and are carrying on working.

PN1030

You see that as signifying that they're happy with that, do you?---Well, maybe happy is a little bit of an informal use of the word, but it shows that they're prepared to continue their employment under those terms and conditions.

PN1031

That's a lot different to being happy, isn't it, Ms Staddon?---I'm sorry, I'm in a less formal industry than you.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1032

Again in response to dot point 2 you've said that employees may get the view that if they vote in favour of a collective agreement, BAL may change its position and you've said:

PN1033

This would be misleading as BAL has said it is not prepared to change its position.

PN1034

?---That is correct.

PN1035

You've made reference to that proposition at a number of points, that BAL is not prepared to change its position?---I've been told that that is the situation and that is what they have told their employees and yet the proposed ballot starts by saying it's a joint ballot from those two people.

PN1036

Certainly that's spelt out on a number of occasions in the instructions you received, I think?---Yes.

PN1037

If that were not the case and if BAL was prepared to at least reconsider its position, depending on what the result was, then obviously you would have to reconsider some parts of your advice?---Some parts of it, yes, but not the majority because it goes more to the question itself.

PN1038

Just going back to the first dot point, you say:

PN1039

The majority of the total workforce has recently accepted the firm terms and conditions of the latest TRP.

PN1040

What do you mean by firm terms and conditions there?---What I mean is that I understand - I was briefed at that initial meeting that about 90 per cent of the employees have signed contracts so they have very clear guidelines as to what their particular package is now.

PN1041

As far as you're concerned, the main difference between the TRP and the collective agreement is the parties with whom it's negotiated?---Well - I keep saying that - but at this point in time nobody can tell them, as I understand it, what the terms and conditions of a collective or certified agreement would be because they need to be negotiated. My use of the word "firm" there is to say well, they've already signed something which spells out what they can have, whereas what's being - they're being asked if they want, cannot be defined conclusively by anybody, can it?

**** VALERIE KAY STADDON XXN MS HOWELL
PN1042

When you say firm, do you know anything about the contracts themselves?---No.

PN1043

Do you know what period of notice has to be given to terminate those contracts?
---No.

PN1044

If the period of notice was only four weeks, then those terms and conditions wouldn't be particularly firm, would they?---In what way?

PN1045

If the company only had to give four weeks' notice that those contracts were no longer operative, then the conditions and terms would not be particularly firm, would they?---Well, I've never worked in a company where I had more than four weeks' notice that I had a job, so they're as firm as I've ever had.

PN1046

You're aware that terms and conditions regulated by certified agreement generally can apply for a period of two years or three years?---I'll accept that, yes.

PN1047

The terms and conditions of these contracts, not the employment but the terms and conditions, what I'm putting to you is if those can be changed at four weeks' notice, then your assumptions about firms terms and conditions would not hold?
---Well, it's still firmer than a collective agreement at this point in time for which nothing can be said about how it would work out for them or are you saying that it's law that a collective agreement has to last for two years. Is that what
you're - - -

PN1048

What I'm suggesting to you, Ms Staddon, is that when you say firm terms and conditions, first of all you have said that without knowing how firm they are. Do you accept that?---Yes, I accept that, except that they have already signed something which - and you're saying that it can be changed at four weeks. I did not know that fact but they have signed something which sets out terms and conditions right now. But if it were a fact that all certified or collective agreements had to be in place where they had to have two years' notice it was going to change, well then I would want that on the question as well so that it was absolutely crystal clear for people.

PN1049

Again, when you talk in question 1, the third dot point, about:

PN1050

Misleading those employees who are or are eligible to be AWU members, may give rise to insecurities about the reliability and permanence of their TRP contracts.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1051

What do you mean by reliability and permanence?---What I mean is that there are people who have signed their contracts. I accept that I didn't know that they could be waived - the terms and conditions could be waived in four weeks, but it would seem to me that they have just signed it and agreed to something and now the issue is being raised and reopened as to whether they want to change.

PN1052

The issue is whether they want to negotiate their terms and conditions through the AWU through a collective agreement or individually with their employer, isn't it?
---Mm.

PN1053

That says nothing about the substance of the terms and conditions, does it?---No.
So is this ballot going out less than four week after some people have signed their TRP? Are they having their firm thing suggested it's going to disappear quickly?

PN1054

In dot point 4 across the page, you talk about Boeing's workforce across other sites - - -

PN1055

MR DIXON: Which dot point are you referring to?

PN1056

MS HOWELL: The top dot point on page 2, still under question 1, and you talk about those in operations capability at other sites and you say it would raise concerns about a small section of the workforce working under different terms and conditions. I put to you again that the question doesn't go to substantive terms and conditions, it only goes to the form of regulation, collective versus individual.
---I see, but my understanding is that there are a certain body within operations capability who are eligible to be within the AWU membership. So there are other people in those - within the same working arena who would not be working under the same - necessarily under the same terms and conditions if this were introduced.

PN1057

Which group are you talking about there, Ms Staddon, I'm not quite sure?---There are people within operations capability at other sites who would be - - -

PN1058

Who are not eligible for membership of the AWU?---Who are not involved in eligibility of the New South Wales AWU thing that's happening now. That's my understanding, that this ballot is going to be - is proposed to be conducted in New South Wales only.

PN1059

You're talking about people who are in the same or comparable positions at other sites?---Yes.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1060

You've assumed there that there would be particular contents to any certified agreement which would be different to the terms and conditions applying under individual contracts?---Well, if they're not going to be any different, there's no point in changing so yes, I did assume you were thinking there would be different terms and conditions.

PN1061

Let me suggest to you some possible reasons, Ms Staddon. Under a certified agreement an employee can enforce their terms and conditions under the Workplace Relations Act. That's a difference which might impact on people's views. Do you accept that?---Well, yes, but I imagine if the union were going to negotiate, that the employer would want to be negotiating something off the total remuneration package. I mean, if they wanted to value add the remuneration package, they wouldn't do it via the unions. Do you see what I mean? Like, you're suggesting - - -

PN1062

I don't think you answered my question, Ms Staddon?---Well, you're suggesting that there is that - a greater security. My takeaway of what you're saying - well, you tell me what you're saying again and I'll answer it.

PN1063

Ms Staddon, can I just ask you to focus on answering the questions. It's not a general debate, it's a process whereby I ask questions and you answer them?
---I'm just trying to understand the question, I'm sorry. I'm really just trying to understand the question and I don't like words being put in my mouth and that's what I felt you were trying to do then. So I'm just trying to - sorry, if you could just say again.

PN1064

If you don't like the words, you just say, "No, I don't accept that proposition"?
---Okay. I'm sorry.

PN1065

You appreciate that there are some differences between individual contracts and collective agreements regardless of the particular substantive terms and conditions which might apply?---Yes, I would say that, yes.

PN1066

It doesn't necessarily follow that because one person is under a collective agreement and another is under an individual contract, that terms and conditions of a substantive nature are different?---I can't agree with that. I won't go into a debate. I'm sorry, I can't agree with that.

PN1067

You would say that it necessarily follows that if you're under a certified agreement as opposed to an individual contract, your terms and conditions must be different?---Yes, I would, because they - otherwise there would be no choice, would there?

**** VALERIE KAY STADDON XXN MS HOWELL
PN1068

There would be a choice between negotiating collectively through a process whereby everyone votes on the agreement and a process whereby you have an individual negotiation with your boss and it's take it or leave it. That's a difference, isn't it?---That's a difference but - well, I don't want to - you asked me not to get into a debate so I won't.

PN1069

That's a difference. You accept that?---I accept that's a difference. I think to assume that the substantive terms and conditions would not be different, I don't see how that could be.

PN1070

I'm not asking you to make that assumption, Ms Staddon, I'm just putting to you that it doesn't follow that they are necessarily different?---And I'm saying I don't totally accept that. Yes.

PN1071

You don't know whether any terms and conditions under a certified agreement would be different or the same?---I don't think anybody does at this time because it's going to be negotiated, as I understand it.

PN1072

Indeed, so that the presumption that there are implications that a small section of the workforce would be working under different terms and conditions is simply something which you don't know about either way?---That's true, but if there's no difference, why are they being asked if they want to change? You're - you keep saying to me that the difference is it's an individual thing versus a collective thing. I'm saying my experience would be that there would have to be differences. I'm sorry, I just - - -

PN1073

What experience are you basing that on?

PN1074

MR DIXON: I object, your Honour. This is going on, but there can be no question at all that there is a difference. The moment there's a certified agreement certified, even if it contains all the same terms and conditions, there is a difference and so my learned friend trying to suggest anything different, cannot, in my respectful submission, be accepted and it's a futile debate because she knows, and your Honour would accept, that there is a difference once there is a collective agreement certified as opposed to an individual uncertified or collective agreement.

PN1075

THE SENIOR DEPUTY PRESIDENT: A difference with respect to the substantive terms and conditions?

**** VALERIE KAY STADDON XXN MS HOWELL
PN1076

MR DIXON: No.

PN1077

THE SENIOR DEPUTY PRESIDENT: I thought that's what the questions were based on.

PN1078

MR DIXON: No, your honour. That was one question, but my learned friend on the last occasion, and implication by what she was saying, is that there's no difference. The witness is answering - - -

PN1079

MS HOWELL: I - - -

PN1080

MR DIXON: Wait a minute, may I put my submission?

PN1081

THE SENIOR DEPUTY PRESIDENT: You say there's no - - -

PN1082

MR DIXON: You'll have your turn.

PN1083

THE SENIOR DEPUTY PRESIDENT: Based on no difference at all in any way, shape or form?

PN1084

MR DIXON: The last question is, one can't assume, in my respectful submission, that it is possible to have the identical outcome and I can see that this argument is going to be raised, but once the certified agreement on identical terms is certified, it cannot be the same. That distinction is not being fairly put to the witness who doesn't have the experience, as I understand it, to make that judgment.

PN1085

THE SENIOR DEPUTY PRESIDENT: She did just refer to her experience, Mr Dixon.

PN1086

MR DIXON: Beg your pardon, your Honour?

PN1087

THE SENIOR DEPUTY PRESIDENT: She did refer to her experience, in her experience.

PN1088

MR DIXON: I understand that, but it should be clarified, with respect your Honour, because I don't think the questions are being fairly put when there is a fundamental - do you mind sitting down, please, I am addressing her Honour.

PN1089

MS HOWELL: I thought you had finished.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1090

MR DIXON: Your Honour, I won't labour the objection but in my respectful submission - - -

PN1091

THE SENIOR DEPUTY PRESIDENT: No, I think your objection, the way you have outlined it, I would accept, to the extent it distinguishes it from the earlier questions which went to substantive terms and conditions.

PN1092

MR DIXON: If your Honour pleases. Thank you, your Honour.

PN1093

THE SENIOR DEPUTY PRESIDENT: I think it's a valid distinction.

PN1094

MS HOWELL: May it please.

PN1095

Ms Staddon, what you say under the first subparagraph of that dot point about employees, a small section working under different terms and conditions, that was a reference to their substantive terms and conditions, wasn't it?---Well, it was a reference to the total package.

PN1096

What did you mean by that exactly?---Well, I just said nobody knows what the terms and conditions were but it doesn't - they're different.

PN1097

How are they different?---They'll be different because one will be negotiated with an employer and one will be negotiated with a union.

PN1098

Why would that necessarily make them different?---I think we've just - I don't see how they can be the same, is what I'm saying.

PN1099

Yes, and I'm trying to get you to explain the reasons why you say that, Ms Staddon when you refer to your experience and I was inviting you to explain?
---Okay. If the majority of people have recently signed contracts of employment and are carrying on working, and there is a move to change how remuneration occurs by introducing a collective or certified agreement, to me it stands to reason that there would be an expectation there would be a difference that had some marked effect, because if there is no difference there seems little point. But it would mean that some people at one - in one place were working under an alternative, if you don't like the word "different", an alternative terms and conditions.

PN1100

Which could, in substantive terms, be the same?---Well, yes, they could. I would have thought it was highly unlikely that an employer would negotiate equal terms when they're already offering. I mean, I don't - I don't understand where you're coming from, sorry.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1101

As far as the next point with an arrow, which is the middle one, you make the same point, that people would be concerned about the likely impact of there being a possibility of a second separate remuneration approach? Are you talking there about substantive conditions or the form of agreement which would apply?
---Could you just explain to me what you mean by substantive? I don't quite understand the use of - - -

PN1102

I mean the wage rates, the allowances, the leave entitlements, et cetera, matters of that nature?---Okay. My understanding from my briefing is, that the total remuneration package model, as it happens now, when it's accepted it flows down to the operations support. I think there would be concern about how was this different process going to flow down, how was it going to fit in with the total package?

PN1103

Of course, as you've noted, it was only that flow-on when it's possible and appropriate?---Yes, but I was asked about how did I think people would be feeling and I'm saying I think there would be concerns about how is this going to impact right round the organisation. I suppose that, in a nutshell, is what I'm talking about there.

PN1104

For the purpose of giving your answers in question 1, you've assumed that where employees have accepted individual contracts and signed onto the new contracts, they have a preference for individual contracts over a collective agreement?---I wouldn't say I've assumed that, I was asked about the - they have signed, they are getting on with it. I wasn't told that they had been offered a collective agreement, I was told they had signed the total remuneration package.

PN1105

Yes, I understand that but you've suggested that people might be disquieted by the possibility that a certified agreement might be entered into?---I think they would be disquieted about the number of unknowns, yes. If you just feel that you've signed off and you're fixed and you know what's going on, to have issues raised of changing it when those changes and how they will impact on you can't be thoroughly explained, just raises concern and anxiety in the workplace.

PN1106

You're aware that before any agreements came into operation the employees' concerns to whom the agreement would apply would have to vote in favour of that agreement?---Yes, but I was being asked about what would be the impact of having this ballot where they're being asked, "Do you want this or don't you?" and what I'm saying is, in my experience, when you start talking about these things when you can't put specifics in front of people, people get concerned. I think it does create a level of anxiety about what's going to be the outcome.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1107

Let's just say hypothetically that some of those people actually preferred the collective agreement approach, even though they had already signed the individual contracts, those people wouldn't be disquieted or made uneasy by the possibility that they would go into a collective agreement arrangement?---No, of course they wouldn't. No.

PN1108

All of those responses which you've given there are really contingent on the assumption that the majority who have entered into those contracts really prefer them to a collective agreement?---And it's also contingent on the fact that I'm given to understand that Boeing have told its workforce it will not negotiate for certified agreements with the AWU. So if that's what the workforce has been told, that was the prime understanding of it.

PN1109

It would be fair to assume, wouldn't it, Ms Staddon, that if any proposed agreement involved conditions, that is substantive conditions, which were less favourable than the individual contracts, it would be likely that such an agreement would be voted down by the employees?---I'm sorry. Could you say that again. You ask very complex questions.

PN1110

It would be fair to assume that if a proposed certified agreement contained terms and conditions which were less favourable than the existing individual contracts, then the employees who got to vote would vote against such an agreement?
---You're talking now about when they voted when it had all been agreed and they said, "Do we want it or don't we?" We're not talking about this question here.

PN1111

Correct?---Yes. But likewise, in this ballot, unless it's spelt out, you would have to think that they believed there was something better and you would need to know what they thought would be better when it cannot be defined at this point in time.

PN1112

Leaving aside the questions about the form of agreement, Ms Staddon, assuming you're correct and there should be some comparisons to be made, the employees can certainly identify that it's either the same or better in terms of the collective agreement?

PN1113

MR DIXON: I object to the question.

PN1114

MS HOWELL: I withdraw that question.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1115

THE SENIOR DEPUTY PRESIDENT: Yes, I don't understand the question.

PN1116

MS HOWELL: I take you on to question 2, Ms Staddon. Your first dot point again is based on the assumption that whatever the result, the company's position would not change?---That's what I've been told, yes.

PN1117

Even if it was 100 per cent in favour of a collective agreement, it wouldn't change the company's position is your understanding?---Well, it's only 100 per cent of those people eligible to be asked the question, along with the AWU.

PN1118

In the third dot point you say:

PN1119

If the majority of those balloted did support a collective agreement, BAL would be justified in questioning what had led those who had recently accepted the firm terms and conditions of the TRP offer to believe that to vote for an as yet undefined collective agreement would result in terms and conditions more favourable to them.

PN1120

Can I suggest to you that a vote in favour of a collective agreement doesn't involve a belief that a vote for an as yet unidentified collective agreement would result in terms and conditions more favourable?---Well, my understanding of human nature is, when you're asked a question, your first thought is, "What's in it for me?" So if you're being given two options, the option you go for is one that you believe has got something better for you.

PN1121

It's possible, isn't it, that the employees may regard collective agreements per se as having advantages?---Yes, but my whole point is I'm not - I really do want to focus just on - if you're going to ask a question, you need to spell all of those things out so that when somebody says. "What does that actually mean? What does that answer mean?" you can be sure to say, "Well, those people who voted for it," let's take your example, "actually would prefer to work under a certified agreement and that's all there is to it." But you need to know that and I'm saying the way it's been framed at the moment you won't be able to say for certain what they thought they were opting for in any event, whether it's the individual contracts or the - - -

PN1122

Can I suggest to you, Ms Staddon, that if the employees concerned are asked whether they prefer a collective agreement as opposed to an individual contract, that will in itself give a good indication as to whether people favour a collective agreement or not?---But you won't have - sorry, I shouldn't say that, that's a debating word. I'm sorry. In my experience, giving them as much information about those options so you know what assumptions they've made in giving that answer, would give you a clearer understanding of what they had assumed or meant from it all.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1123

In respect of the question directed to the form of agreement, that is collective agreement versus individual contract, what further information do you say is needed to enable that choice about the form of agreement to be made?---Well, what we say in market research is never presume so I would not presume that everybody who had gone for a collective agreement thought collective agreements were better per se. I would want to know what else - I would want to know what they thought was going to be better and I would want to have put to them as much information I could as what would be offered.

PN1124

Assuming that the parties have both put all the information they want to about the respective options, then that question can fairly give an indication of whether people prefer, as a form of regulation, collective regulation or individual regulation?---Well, I suppose that's my biggest distance from the way this is approached. What I'm saying is, nobody can say for certain what any of the employees have heard so far and what they've taken away from it. So I'm just saying, from a theoretical point of view, I would rather put the precise information as suited both parties on the questionnaire in a neutral way to be sure they had been given the information that I wanted them to have in assessing which they would prefer.

PN1125

But there's no substantive difference is there, Ms Staddon, between putting the information at a meeting that people attend and giving them a handout, rather than putting it on the actual ballot paper?---Well, I'm sorry. I have to - when I do - when I say this is somebody's opinion, I have to be able to say what that opinion means and all I'm saying is, if people want to sit down and draw conclusions as to what the opinion is, I wouldn't be risking that everybody did go to a meeting, that everybody heard what was said, that everybody remembered what was said, I would be putting on the questionnaire where the question is.

PN1126

I see, so if the parties put their positions rather like in a referendum in a document which was attached to ballot paper - - -?---I wouldn't put it in a document, I would get it down to a one pager. I certainly wouldn't be going - - -

PN1127

Let's say a one page document but attached to the ballot paper?---Yes.

PN1128

Certainly the difference between a collective agreement and an individual agreement could be concisely explained in that way?---Yes.

PN1129

Assuming that the respective points of view were put in a sufficiently neutral but informative way, then one could get a reliable indication of people's preferences?
---Not from the way the question is phrased at the moment, no.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1130

That's because of the matters you raised elsewhere in your opinion?---Yes.

PN1131

One of those relates to the inclusion of AWAs?---Yes.

PN1132

The other matter relates to the words "as opposed to". Is that right?---Yes.

PN1133

Were there other grounds on which you thought that the question would not disclose people's preferences?---In my profession we try incredibly hard to ask questions in the most neutral way possible so that people aren't led in any direction and I believe the way the question is phrased is very leading towards a specific answer. As I say in there, I believe it's confusing because it does liken individual workplace agreements to AWAs, suggesting that they're two things that are much the same in comparison to the collective agreement.

PN1134

How would you like to see the question worded, Ms Staddon?---Well, if there is serious intent for anybody to consider an AWA, then that would obviously be - have to be separate. At the moment they can only give a yes or no, "Do you want this as opposed to these two things?" Well, that's like a double-whammy because there may be people in Boeing who actually would like an AWA but they haven't got the option on this ballot of saying so. So it's things like that that I'm sort of saying about the question needs to be more precise, but certainly giving them more information would be very helpful but it wouldn't work with the question as framed, in my opinion.

PN1135

An appropriate question, for example, might be, "Which of the following options would you prefer?" and then you could have collective agreements, individual contracts and, if appropriate, a third box for AWAs?---Yes, as long as the precursor information explained what the ramifications of each of those options were and I would give serious consideration to giving people the option to say that they didn't know or they didn't care because there are plenty of people in the workforce who - no, I can't say that, sorry. There are as likely to be people in the workforce who don't care what the terms and conditions are as there are the people that care and to force them to choose one or another, when it's not a valid choice for them, doesn't let them reflect their opinion.

PN1136

You would appreciate, Ms Staddon, that the don't know option is not one that frequently occurs in industrial relations ballots?---But I think - - -

PN1137

MR DIXON: Your Honour, that's just a gratuitous comment.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1138

MS HOWELL: You say that in respect to question 2 if the minority of those balloted supported a collective agreement that that would be the end of the matter. Why do you say that?---Well, I think if people have been asked to vote for something and the majority is saying that they want to stay with what they've got, which is what I understand they would effectively be saying, then they wouldn't really expect anything else to happen, would you? Why would you be asked to vote if your vote's not going to count?

PN1139

You assume that would be what they would say?---I assume that's what they would expect. I don't know the full ramifications of what would eventuate in either case. I'm saying this is what I believe they would expect and if that were not to be the case, I think they should be told that as well on the questionnaire.

PN1140

You say that in question 3:

PN1141

Any move away from the current consistent TRP approach will have ramifications for the entire workforce.

PN1142

Again, the underpinning assumption there is that a collective agreement would involve movement away from the consistent TRP approach?---I thought we'd agreed this. It wouldn't be a consistent approach if one group of the employees' terms and conditions were negotiated through a collective agreement through the union.

PN1143

I take it you're not referring there to the substantive terms and conditions then?
---No. I have said that I don't see how they could be the same, but I do accept your point that they theoretically could be the same.

PN1144

When you wrote this, were you referring to the substantive terms - - -?---The total thing. The total thing. If at the moment they have a consistent approach where Boeing can review and offer terms and conditions and deal individually with employees, it has to be an inconsistent approach if there are then a group of employees for whom the dealings have to be done through a union as a collective thing. That is inconsistent. It's two different approaches.

PN1145

At least in your opinion?---Well, I would have thought in the workers' opinion and in Boeing's opinion.

PN1146

Obviously dot point 2 is contingent on your assumption that BAL will not change its position in respect of a certified agreement?---That's correct. That's how I was briefed and I took that to be a true statement of Boeing's position at the time I was briefed.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1147

When you say the AWU has no authority to canvass the opinion of the workforce, presumably that would depend on the extent to which members of the workforce were members of the AWU?---Yes, but my understanding was that - what I'm saying there is that the - I'm sorry, I assumed that the workers that were not eligible to be in the AWU, that the AWU would not have the authority to ballot them.

PN1148

You understand that the AWU has only sought a ballot with respect to Williamtown employees?---Yes, I do.

PN1149

In the operations capability team?---Yes.

PN1150

That's the extent to which the agreement would apply, if there was a certified agreement?---That's what I've been given to understand, yes, and I've been given to understand that across the three operations there are about 600 people.

Are you aware as to whether the terms and conditions are uniform throughout those 600 people currently?---No.

PN1151

You don't know?---No.

PN1152

You don't know whether it would be a change to the position if there was a certified agreement applying to a group of them?---There would be a change because it would apply to a group of them.

PN1153

In terms of consistency or otherwise, you don't know whether that would be a significant departure or not, do you?---Well, my understanding is that those sort of contracts would be signed with individuals, so I don't suppose anybody would know really.

PN1154

When you say people might be disquieted by the fact that people in another group have a different regime of regulation, you say that not knowing whether there are different forms of regulation at the moment?

PN1155

MR DIXON: Your Honour, what does my learned friend mean by forms of regulation? Does she mean industrial instruments or individual contracts?

PN1156

THE SENIOR DEPUTY PRESIDENT: Yes. You might have to be more specific, Ms Howell.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1157

MS HOWELL: Any variance in forms of regulation.

PN1158

MR DIXON: Can my learned friend just explain what she means by forms of regulation? Does she mean certified agreements as opposed to common law contracts?

PN1159

MS HOWELL: Ms Staddon, you're aware that a number of forms of regulation might apply beyond certified agreements?---Yes.

PN1160

That might be individual contracts with different terms?---Yes.

PN1161

And it might be AWAs as well?---My understanding was there were no AWAs in Boeing at the present time, not to my understanding.

PN1162

I see. You've made your observations based on an assumption that there is a consistent regime across the relevant groups at the three sites?---I haven't made the assumption that everybody is being paid the same but I have been told there is a remuneration model where there is a total remuneration package and my understanding is that the employees were aware of the overall strategy or principles involved in that.

PN1163

The only thing you know about the total remuneration package is that it involves individual contracts rather than collective agreements?---Yes, but I'm assuming that individuals that work on salary levels.

PN1164

To the extent that there may be AWAs in operation, that would be something which you would have to take into account in formulating your opinions as to the impact of the ballot on various groups?---Yes.

PN1165

Assuming for the purpose of the question that the employees who are to participate in the proposed ballot are of the view that the majority do want a collective agreement, then the holding of a ballot to ascertain whether that's true or not, it's not likely to make them feel in any way disgruntled or unhappy?
---I find I have to answer you with questions because you use assuming a lot. Why am I assuming that the majority of people eligible to be members of the AWU are in favour of a collective agreement? I'm not making any value judgment about who's in favour or who's not in favour.

PN1166

Ms Staddon, you've relied on a lot of assumptions for the purpose of your expert report?---Is that a question?

**** VALERIE KAY STADDON XXN MS HOWELL
PN1167

It's a proposition. You can agree or disagree?---I don't know how to answer it, I'm sorry. I don't really understand what you're saying.

PN1168

Ms Staddon, I just ask you to accept the hypothetical questions and answer them accordingly. If you can't answer them, then say so?---Mm mm.

PN1169

I'm putting to you that if a majority of the employees are currently of the view that people generally do want a collective agreement - - -

PN1170

MR DIXON: Who are the people my learned friend is referring to?

PN1171

MS HOWELL: People who will be the subject of the ballot, as I said before?
---Well, I thought - I was given to understand that there are a minority of people at Williamstown who are eligible to be in the ballot.

PN1172

We're talking about 70-odd people and I'm confining my question to that group at the moment?---Okay, yes.

PN1173

First of all, assuming that those people generally hold the view that a collective agreement is what the majority do want, then they're not likely to be disgruntled?
---I wouldn't assume that membership of the AWU meant that they will favour collective agreements. I couldn't draw that conclusion.

PN1174

I'm not asking you to assume that, Ms Staddon, but I am asking you for the purpose of the question to assume that those people, 70, the majority of them are in favour of - - -?---I see, hypothetically.

PN1175

Exactly?---Right.

PN1176

I'm asking you to assume that the majority of the employees in that group of approximately 70 do think that the majority actually do want a collective agreement. Now, they wouldn't be disgruntled by the prospect of having a ballot in those circumstances?---Excuse me, you're saying that hypothetically, but I understood that most of them had recently signed - renewed their contracts so I can't accept the hypothesis. I wouldn't draw a hypothesis.

PN1177

You're assuming from the fact that they've signed the contracts that they actively do not want a collective agreement then?---I'm saying I wouldn't assume that the majority wanted the collective agreement.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1178

Because they signed individual contracts?---Mm.

PN1179

In fact you'd assumed the contrary, that because they've signed individual contracts they wouldn't want a collective agreement. Is that right?---Mm.

PN1180

I'm sorry?---Well, I understand that not everybody who's eligible to be in the union has joined the union so I can't draw the assumption that they would be in favour of what they wanted.

PN1181

Ms Staddon, do you or do you not conclude from the fact that a person has signed an individual collective agreement that they do not wish to have a collective agreement?---An individual contract?

PN1182

Yes?---Generally speaking I think that, yes.

PN1183

I see, and you've proceeded in your report on that basis?---Yes, it's in my report but it's not the only thing that's affecting why I'm saying what I'm saying.

PN1184

But it's one of the things?---It's one of the things, yes.

PN1185

Let's just assume for the purpose of the question that you're wrong and in fact signing individual contracts says nothing about people's views about collective agreements. Bear with me on that one?---Yes.

PN1186

Secondly, that a majority of the 70 employees are of the view, firstly, that they do want a collective agreement and secondly, that a majority of their co-workers also want a collective agreement, if they - - -?---Who are their co-workers in this instance?

PN1187

In the 70 who are going to be canvassed?---Okay, still within the - okay, fine.

PN1188

On the basis of those assumptions, none of those 70 people would be disgruntled at all by the prospect of having a ballot?---Not if your assumptions are true, no.

PN1189

With respect to the other employees who are not being canvassed at this time, if they also were of the view that the majority at Williamtown of the 70 employees wanted a collective agreement, there's no reason why they should be disgruntled by that?---I pass on that one. I can't say that that necessarily follows.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1190

In circumstances where employees thought that the employer was not interested in their preferences, that would certainly give rise to some dissatisfaction, wouldn't it?---Among those people who, yes, who felt their view wasn't being listened to. Yes.

PN1191

THE SENIOR DEPUTY PRESIDENT: Ms Howell, I'm mindful of the time.

PN1192

MS HOWELL: I've almost finished, your Honour.

PN1193

THE SENIOR DEPUTY PRESIDENT: Have you?

PN1194

MS HOWELL: Yes.

PN1195

THE SENIOR DEPUTY PRESIDENT: Is it a preference to conclude the evidence of this witness this afternoon?

PN1196

MS HOWELL: I think so.

PN1197

MR DIXON: If at all possible.

PN1198

THE WITNESS: I have to catch a plane very soon.

PN1199

MS HOWELL: What time?---I have to leave here by - before five.

PN1200

We should be finished before then. Ms Staddon, you make some comment on other issues at page 5. Were they matters that anyone asked you to comment on?
---No. Just let me check. No, I wasn't specifically asked to address them. When I'm given a brief I read it - always read it thoroughly and make comments.

PN1201

In respect of you conclusion, certainly that relies on the assumptions that we've discussed?---Yes, as well as other things. Yes.

PN1202

That includes the assumption that, regardless of the outcome of any ballot, Boeing wouldn't change its position?---Yes.

PN1203

It also relies on the assumption that those persons who have entered into individual contracts have a preference to remain on those contracts and not enter into a collective agreement?---Yes, but less so. I mean, my conclusion that it would be not in the best interests of the workforce is for all of those reasons, all of my arguments.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1204

Certainly, if the question was adjusted to take account of the matters that you have identified, particularly in respect of question 5, then it could certainly give an indication of whether people do prefer collective agreements or individual contracts?---If they were given a full explanation of what all the issues were in relation to that ballot and the question was phrased in a neutral way, it certainly could, but as I understand , it can only ever apply to that section of Boeing's workforce which are eligible to be AWU members. So I still would say that it, from Boeing's perspective, puts a section of its employees at a disadvantage.

PN1205

What area of your expertise do you rely on for that proposition, Ms Staddon?
---Just my observations over 35 years of watching what happens when things happen to people. I mean, that's really what I do, I just observe.

PN1206

Which people would be at a disadvantage, the people no subject of the ballot or the people subject of the ballot?---Well, the people not subject to the ballot because they're not within the framework of the AWU's membership, as I understand it. It's also asking for a total change. If Boeing have positioned themselves as having a total remuneration package that is, albeit, different terms and conditions but a consistent approach across its whole workforce, it has to be said that changing a section of it is going to change conditions for the workforce.

PN1207

You just don't know that, do you, Ms Staddon?---Well, I do know that as soon as there is a group people who have any difference in the way they fit with the company, there will be a difference.

PN1208

For a start, you don't know whether any of the employees are on AWAs or not?
---No, I don't.

PN1209

You don't know the extent to which they are already different groups within the workforce in terms of - - -?---That's a fair point, yes, I accept that, but I wasn't aware that anybody - that negotiation had to go through a union for anything that was happening there at the moment. I trust that's correct. That was my understanding.

PN1210

Do you mean that you understand individuals can't go through the union?---No. My understanding is that the way the total remuneration package works at the moment, that individuals can have individual contracts that relate to them, as opposed to the collective agreement where there's a collective agreement about what people will be paid and the terms and conditions.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1211

Your understanding is that each individual employee individually negotiates their contract?---I understand that there is the potential in the way it's done at the moment for individuals to be offered different things, yes.

PN1212

Where did you get that understanding?---From my initial briefing.

PN1213

What was said exactly to give you that impression?---I understood that there were bonuses involved, terms and conditions, but I understood the principle was that they were individual contracts individually signed and my takeaway of an individual contract individually signed is, it has the potential to be different from any other individual contract.

PN1214

When you say has the potential, either the contracts are the same or they're different, Ms Staddon. Are you aware as to whether they're all different or whether they're all the same?---No, I'm not aware of whether they are but if a system has the potential for you to have a difference, that has a benefit over - that could be seen as having a benefit by some employees as having a contract which is negotiated as a collective.

PN1215

You would be aware, Ms Staddon, that collective agreements also have the potential to include differential payments?---Yes.

PN1216

I suggest to you there's no distinction to be made in that respect between individual contracts and collective agreements?---Well then, why do they want to have collective agreements if what Boeing is doing is the same as they've got already? I can't understand why you keep saying they're the same. There has to be a difference, otherwise they wouldn't be trying to change the system.

PN1217

I think that's a matter for me to make submissions about, Ms Staddon, but certainly you don't understand the distinction between individual and collective agreements?---My interpretation of what you've been saying is that you have asked me to assume there's going to be no substantive difference and I'm saying if there's no substantive difference, I don't know why anybody wants to change it.

PN1218

Again, you've proceeded in your report on the basis of that attitude?---Yes, and you have said, you have talked to me about the fact that that all needs to be explained what the ramifications are of it all. If an end benefit is a collective and you believe that's an important benefit, well then, it's not on the questionnaire at the moment in terms of that benefit per se as opposed to terms and conditions.

**** VALERIE KAY STADDON XXN MS HOWELL
PN1219

You would accept that as long as relevant information is provided in a concise form at the time of the ballot, then that concern in particular would be met?---Yes. As long as the question was rephrased, yes.

PN1220

No further questions.

PN1221

THE SENIOR DEPUTY PRESIDENT: Mr Dixon.

<RE-EXAMINATION BY MR DIXON [4.34PM]

PN1222

MR DIXON: Ms Staddon, just one issue, I think. You were asked some questions, a whole range, but they started with being put to you that you've assumed that certified agreements and the common law contracts with the TRP are inconsistent. Do you remember that?---Yes.

PN1223

It was suggested to you that that assumption of yours could be stated or corrected, if it was wrong, on a ballot paper and you said in response, as I understood it, "Yes, if that is the sum total of what it was" or words to that effect. Could you explain to her Honour what you meant?---The question as it's phrased at the moment is really saying, "Do you want this or do you want that?" Apart from just explaining what the options were to entail, they involve different processes and different outcomes. They may not be able to have a collective agreement. I think it just needs to be set in context of what the steps would be. What I'm saying is, you can explain what a collective agreement is but at this stage nobody can say what the terms and conditions are. They can say, you know, that it would be negotiated with the AWU and it should also say how they would get to that position because, again going back to my principle that if you want to know if people have considered something you put it on a questionnaire, of what the processes would need to be before they arrived at that.

PN1224

What you're saying is the processes and what would have to be ultimately agreed, would that be something - - -?---Yes, yes.

PN1225

I have no further questions, thank you. Your Honour, we appreciate your Honour sitting on to accommodate Ms Staddon.

PN1226

THE WITNESS: Yes, thank you.

PN1227

THE SENIOR DEPUTY PRESIDENT: Thank you for your cooperation, Ms Staddon. It's been a long afternoon. You're excused from the witness box and you're excused from the court?---Thank you very much indeed.

<THE WITNESS WITHDREW [4.37PM]

PN1228

THE SENIOR DEPUTY PRESIDENT: That takes us to submissions. Have we got any indication of how long the submissions might take tomorrow?

PN1229

MS HOWELL: Your Honour, I would be not more than hour, I think, but can I just say, your Honour, that I think I would be hugely assisted by having the transcript. I think it's important that the precise terms of the witness's evidence be considered in the submissions. I'm not sure of the earliest time the transcript could be available but I think that would certainly assist the process.

PN1230

THE SENIOR DEPUTY PRESIDENT: You won't have the transcript in time to put submissions at 10o'clock tomorrow morning. I understand what you're saying and Mr Dixon, you can speak for yourself if you may be assisted by the transcript also. No? Would you like me to adjourn for a moment to ascertain when the transcript might be available.

PN1231

MS HOWELL: Yes, your Honour, if it please.

PN1232

THE SENIOR DEPUTY PRESIDENT: Yes, all right. We'll adjourn just for five minutes to find out the availability of the transcript.

<SHORT ADJOURNMENT [4.38PM]
<RESUMED [4.49PM]

PN1233

THE SENIOR DEPUTY PRESIDENT: Sorry about that delay. I tried to contact the transcript people and we haven't been entirely successful. What I do know is that we haven't put a request in for urgent transcript. That should have been done before 10 o'clock this morning to get urgent transcript and that would be a matter of my discretion anyway, given the cost factor involved, but it hasn't happened.

PN1234

On the basis of a two day matter that I dealt with a couple of weeks ago with similar hours, the transcript was a couple of days. It certainly won't be available tomorrow morning so I don't know where that places you, Ms Howell. I don't want to prejudice your case in any way. It's your application. My experience is that often the parties and the Commission are assisted by some distilling of the evidence which often ranges far and wide but that's a matter for you.

PN1235

MS HOWELL: I think in this case the precise evidence is going to be of some importance and that's why I expressed the view that it would be of significant benefit, your Honour. If your Honour had any time perhaps early next week that's convenient to Mr Dixon as well, I would propose that that would be a better way of dealing with it.

PN1236

THE SENIOR DEPUTY PRESIDENT: Mr Dixon is shaking his head.

PN1237

MR DIXON: I really don't have any other time with commitments coming up.

PN1238

MS HOWELL: The only other possibility I can propose, your Honour, is that the parties put in written submissions based on the transcript, or alternatively we make our - and this is not really a preferred option, but we make our submissions and then put in any transcript references that we want to at a later date.

PN1239

THE SENIOR DEPUTY PRESIDENT: That's not very satisfactory, is it?

PN1240

MS HOWELL: No, your Honour.

PN1241

THE SENIOR DEPUTY PRESIDENT: I don't know that that would be of great assistance.

PN1242

MS HOWELL: I would suggest written submissions in that case.

PN1243

THE SENIOR DEPUTY PRESIDENT: What's the earliest time you're available, Mr Dixon?

PN1244

MR DIXON: You Honour, my difficulties stem from the fact that I've got three trials back to back starting the week of 31 October and taking me through to the week of 21 November.

PN1245

THE SENIOR DEPUTY PRESIDENT: Thank you. There's nothing available next week?

PN1246

MR DIXON: Your Honour, I'm committed to - because of the three trials that I've got, I know court commitments usually take precedence but it would put me under enormous - and disrupt a number of other persons who are all lined up because of those. I've just been caught with the back to back nature of the three matters, each of which will take each of the weeks, the first one being in the west.

PN1247

THE SENIOR DEPUTY PRESIDENT: I see. Well, it's your preference for written submissions.

PN1248

MS HOWELL: Yes, so that we can refer to the transcript.

PN1249

THE SENIOR DEPUTY PRESIDENT: It may well be that I call the matter back on if I need to in light of written submissions, but then we're back into the same situation that Mr Dixon is not available till late November.

PN1250

MR DIXON: Your Honour, I wouldn't want to deal with this matter simply on written submissions.

PN1251

THE SENIOR DEPUTY PRESIDENT: That's why I said what I did because I'm a bit nervous about just saying yes, put in written submissions and I'll determine it.

PN1252

MR DIXON: It's the union that is critical in the public domain about delay. You saw the publication in respect of 16 September.

PN1253

THE SENIOR DEPUTY PRESIDENT: Yes, I did.

PN1254

MR DIXON: Our preference would be to put the submissions tomorrow, deal with the matter. If that's not to be the case, then we would ask the Commission to accommodate the position and we come back on a later date with no criticism directed at Boeing where the Commission can properly assess it and we can put oral submissions.

PN1255

MS HOWELL: Your Honour, it's not suitable to us and that's unfortunate, but the best way the Commission can deal with it is within a reasonable time and with the transcript to consider, but we certainly don't want it going over till sometime after 21 November, your Honour. We would say in those circumstances we do the best we can tomorrow and possibly then supply the Commission as soon as possible with references to the relevant transcript. That's the only possible way forward, I think in the circumstances of Mr Dixon's unavailability.

PN1256

THE SENIOR DEPUTY PRESIDENT: It seems that that's the most appropriate option, although not the most satisfactory from either the parties' point of view or the Commission's.

PN1257

MS HOWELL: Indeed.

PN1258

THE SENIOR DEPUTY PRESIDENT: I think we should adjourn until tomorrow and if you need to renew your application for an adjournment in light of the homework you do tonight, well, that's open to you to do so because I appreciate the nature of the evidence in this matter.

PN1259

MS HOWELL: Yes, your Honour.

PN1260

MR DIXON: Your Honour, the trial I've got listed for the week of 7 November is a trial in Sydney in the Federal Court listed for the full week, but there is a prospect, I'm told, that it might go away. I won't know that for some time. An alternative approach was for your Honour to perhaps set it for the week of
21 November and if anything changes, if your Honour has any time in the week of the 7th, we can reschedule as soon as that time becomes available, but I won't know for a period of time and that might be very inconvenient from the Commission's point of view.

PN1261

THE SENIOR DEPUTY PRESIDENT: It doesn't inconvenience me because I can set time aside that week. I don't know whether that satisfies the AWU.

PN1262

MS HOWELL: Your Honour, the prospects of not having the submissions till 21 November is definitely not one that we would welcome. The application has been on foot for a fair while now and the lesser of two evils for us would be to have the submissions tomorrow as far as we can go and then put in supplementary transcript references at a later date. We really would feel that the week starting 21 November, which is a good four weeks away, is just too far into the future for us.

PN1263

THE SENIOR DEPUTY PRESIDENT: Even if we had written submissions and the parties were given an opportunity to speak to those written submissions, we still haven't got the guarantee, have we, of 7 November. See, that would give time to put in written submissions based on the evidence and the other material and then still have a short hearing that week which I would be content with that. I guess Mr Dixon's same qualification applies in that he can't, for the same reasons, commit himself for that week and if that trial proceeds the week of the 7th, we're back to 21 November at the earliest.

PN1264

MS HOWELL: That's the difficulty, your Honour. I've got Mr Swan here but I really probably need to get some further instructions from an official of the union to accept such a delay when there is a ..... With the possibility of the hearing not being until the 21st, your Honour, I think we would have to ask the Commission that we proceed tomorrow.

PN1265

THE SENIOR DEPUTY PRESIDENT: We will proceed tomorrow and if you've got different instructions tomorrow in part or in full in terms of how we proceed, well - - -

PN1266

MS HOWELL: Yes, thank you.

PN1267

THE SENIOR DEPUTY PRESIDENT: If Mr Dixon has had any changes with his diary overnight, which is highly unlikely, I would appreciate being informed of that too. Is 10 o'clock convenient, or would you rather a later starting time?

PN1268

MS HOWELL: For my part, your Honour, I would rather a later starting time.

PN1269

THE SENIOR DEPUTY PRESIDENT: You said you would be in the order of an hour.

PN1270

MS HOWELL: Yes, your Honour.

PN1271

THE SENIOR DEPUTY PRESIDENT: Mr Dixon, how long would you be approximately?

PN1272

MR DIXON: About an hour and a half, your Honour, to two hours.

PN1273

THE SENIOR DEPUTY PRESIDENT: We could start at 11, 11.30 or 12 noon.

PN1274

MR DIXON: I'm in your Honour's hands.

PN1275

THE SENIOR DEPUTY PRESIDENT: Beg your pardon?

PN1276

MS HOWELL: 11 or 11.30 would suit us, your Honour, thank you.

PN1277

THE SENIOR DEPUTY PRESIDENT: Did you say 11.30 was inconvenient?

PN1278

MR DIXON: No, your Honour. I said I'm in your Honour's hands in respect to that.

PN1279

THE SENIOR DEPUTY PRESIDENT: Ms Howell, you're presenting the matter, your preference is for 11.30?

PN1280

MS HOWELL: Yes, your Honour.

PN1281

THE SENIOR DEPUTY PRESIDENT: We will adjourn till 11.30 tomorrow.

<ADJOURNED UNTIL WEDNESDAY 19 OCTOBER 2005 [4.50PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

BENJAMIN CHARLES SWAN, SWORN PN136
EXAMINATION-IN-CHIEF BY MS HOWELL PN144
EXHIBIT #AW1 STATEMENT OF BENJAMIN CHARLES SWAN PN162
CROSS-EXAMINATION BY MR DIXON PN163
EXHIBIT #B1 UNDATED PETITION PN285
EXHIBIT #B2 AWU MEDIA RELEASE DATED 01/06/2005 PN295
EXHIBIT #B3 DOCUMENT HEADED BOEING RUNS SCARED DATED 16/09/2005 PN323
RE-EXAMINATION BY MS HOWELL PN331
THE WITNESS WITHDREW PN341
EXHIBIT #B4 COMPANY'S OUTLINE OF SUBMISSIONS PN345
PETER GREGORY BEST, SWORN PN348
EXAMINATION-IN-CHIEF BY MR DIXON PN348
EXHIBIT #B5 WITNESS STATEMENT OF PETER GREGORY BEST DATED 07/10/2005 PN356
CROSS-EXAMINATION BY MS HOWELL PN358
THE WITNESS WITHDREW PN469
PETER GREGORY BEST, RECALLED ON FORMER OATH PN476
CROSS-EXAMINATION BY MS HOWELL, CONTINUING PN477
EXHIBIT #AWU2 MEDIA STATEMENTS FROM BOEING AUSTRALIA REGARDING THE CURRENT INDUSTRIAL DISPUTE AT WILLIAMTOWN PN722
RE-EXAMINATION BY MR DIXON PN729
THE WITNESS WITHDREW PN764
VALERIE KAY STADDON, AFFIRMED PN774
EXAMINATION-IN-CHIEF BY MR DIXON PN774
CROSS-EXAMINATION BY MS HOWELL PN848
THE WITNESS WITHDREW PN864
VALERIE STADDON, ON FORMER OATH PN939
EXHIBIT #B6 STATEMENT OF VALERIE STADDON PN940
CROSS-EXAMINATION BY MS HOWELL, CONTINUING PN940
RE-EXAMINATION BY MR DIXON PN1221
THE WITNESS WITHDREW PN1227