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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15729-1
SENIOR DEPUTY PRESIDENT CARTWRIGHT
BP2006/3313
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
EDI RAIL PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3313)
SYDNEY
7.31AM, TUESDAY, 12 SEPTEMBER 2006
Continued from 11/9/2006
Reserved for Decision
PN1
MR A NEILSON: I appear on behalf of the notifying union, I appear with MR S MURPHY.
PN2
MR R FRANKLIN: I am the solicitor from Franklin Athanasellis Solicitors, I seek leave to appear on behalf of EDI Rail Pty Ltd under section 100(4) of the Workplace Relations Act. As you know your Honour I’ve been involved in this proceeding since the first one commenced and have been involved with EDI Rail through with negotiation of the current Workplace agreement since it started.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, any objection to leave?
PN4
MR NEILSON: No objection your Honour.
PN5
THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted. I note that this matter has a new file number, but maybe a continuation of a previous matter in which you were granted leave.
PN6
MR FRANKLIN: Thanks your Honour. Your Honour, if I may have liberty before Mr Neilson commences his submission, Mr Wilson has prepared an affidavit and I have given a copy of that to Mr Neilson this morning. You probably realise with the time constraints yesterday of getting it down, and I would like to table a copy of that for yourself.
PN7
THE SENIOR DEPUTY PRESIDENT: Certainly, thank you.
PN8
MR FRANKLIN: Thanks your Honour.
PN9
THE SENIOR DEPUTY PRESIDENT: Mr Neilson? First of all can I thank the parties for accommodating the time of hearing so well this morning. My compliments to you all for being here on time. You did go home last night Mr Neilson?
PN10
MR NEILSON: I did. I have been lobbying for a room, but it hasn’t been granted to me yet. This is an application by the AMWU for an order from the Commission for a protected action ballot to be held. The AMWU has in an attempt to circumvent and assist the Commission in terms of the timeframe allocated today prepared an outline of submissions that we would seek leave to tender.
PN11
THE SENIOR DEPUTY PRESIDENT: That’s additional to what was with - - -
PN12
MR NEILSON: Yes, your Honour I have provided a copy to Mr Franklin this morning as well as last night, but I suspect he actually didn’t get it.
PN13
THE SENIOR DEPUTY PRESIDENT: Just while that’s coming up. In relation to the paper work I haven’t had the same opportunity this time to review the detail of the application as I had last time, when we were together. Is it substantially the same?
PN14
MR NEILSON: It is substantially the same, the only material difference your Honour apart from the fact that the time table proposed is different.
PN15
THE SENIOR DEPUTY PRESIDENT: And I note the question proposed.
PN16
MR NEILSON: Yes, the question is different, the reason that the question is in fact different is to reflect some recent decisions of the Commission whereby particularity in terms of the actual timeframe if the proposed action was sought and so we have attempted to meet those requirements in the question that’s drafted.
PN17
THE SENIOR DEPUTY PRESIDENT: But in terms of meeting all the requirements of division (4) for contents of the application, do you say that they are all met?
PN18
MR NEILSON: Yes, we do your Honour. Perhaps just to assist you, at paragraphs (1) through (13) of our written statement, we’ve addressed those statutory prerequisites and assert that they have been met and there is no issue with the service of the documentation from my understanding. Your Honour I will go to those submissions - - -
THE SENIOR DEPUTY PRESIDENT: Perhaps it might be helpful if we mark the submissions.
EXHIBIT #A1 SUBMISSIONS
PN20
MR NEILSON: I will go to the submissions in detail in our closing but what I propose to do now is that at the time of filing the application the union provided to the company and to the Commission a short statement of Mr Murphy setting out some of the material that is outstanding between the parties to the negotiations. What I propose to do is to call Mr Murphy for the purposes of confirming that statement and to allow Mr Franklin to cross-examine him if he so chooses. So I seek leave to call Mr Murphy to the witness box.
PN21
THE SENIOR DEPUTY PRESIDENT: Just while Mr Murphy is coming up in clause 11, can I ask you Mr Neilson, because you’ve probably looked at it, is that wording exactly the same as we had on the previous occasion
PN22
MR NEILSON: Yes, it is.
THE SENIOR DEPUTY PRESIDENT: Okay thanks.
<STEVE MURPHY, AFFIRMED [7.37AM]
<EXAMINATION-IN-CHIEF BY MR NEILSON
PN24
MR NEILSON: Thank you Mr Murphy, can you state your full name, address and occupation for the purposes of the record?---Steve Murphy (address supplied) I am an organizer for the AMWU eastern division.
PN25
Mr Murphy for the purposes of these proceedings have you prepared a statement?
---Yes I have.
PN26
Do you have a copy of that statement with you?---Yes I do.
PN27
Does that statement number some 13 paragraphs?---Yes, it does.
PN28
Can I take you to the second page of that statement where it says signed at Sydney on 12 September 2006. Do you see below that there is a signature?---Yes.
PN29
Is that your signature?---It is.
Your Honour, I seek leave to tender a copy of the statement of Mr Murphy, I have a signed copy for the Commission’s file.
EXHIBIT #A2 STATEMENT OF STEVE MURPHY
PN31
MR NEILSON: Mr Murphy I just have one or two further questions for you. See paragraph 5 of your statement you set out a number of meetings that have occurred with the company?---Yes.
PN32
Do you recall what was generally the nature of the discussions at those particular meetings?---On 14th, was one of the first meetings we had after the initial Commission hearing over the last matter. We met with Mr Wilson as the sole representative for the company and discussed a number of issues around outstanding clauses including employer representatives consultation. Mr Martin wasn’t present at that meeting we had some lengthy discussions with Mr Wilson around appropriate wording for those clauses, because we had agreed in principle as to what the content was going to be and what the spirit of those clauses were. Mr Wilson supplied copies of clauses at that meeting and we found out during the course of that meeting that Mr Martin was no longer with EDI. We had a subsequent meeting with the company on 18th where we responded to those particular clauses. I think we ticked two of them off and there was another one that we had to wait on. That was in relation to emergency leave. We had a further meeting on 22nd where we did discuss the emergency leave clause. 24th there was further discussion and a report back from the company’s previous offers around wages and the response to our log of claims. Again on 29th there was another offer from the company where we had discussed, we agreed in principle around a number of the wording of clauses and we were there to talk about the package as such.
**** STEVE MURPHY XN MR NEILSON
PN33
At paragraph 8 of your statement you identified a number of subject matters that are outstanding between the parties, do you see that?---Yes, I do.
PN34
Have those subject matters been the subject of discussion in those meetings referred to at paragraph 5?---Yes, they have been and they are the discussions at the start of the meeting we deal with the wording issues or tidying up clauses, or agreeing in principle to issues. But at all of those meetings we have discussed in some way where the company was at with their wage offer. For example, in the first one requested the company make an offer around wages. Mr Wilson’s response was, we’ll tidy up the clauses and there should be a surprise at the next meeting. We then got an offer on the 18th, we considered that, reported back at the following meeting and then got another offer on the later meetings response.
PN35
Mr Murphy at paragraph 9 of your statement, you attest to the fact that the employee’s claim remains at 7 per cent over each of the three years of the agreement, do you see that?---Yes.
PN36
Is that still the position of the employees?---I got a phone call from the delegates last night and they informed me that our members changed the claim, not the Wednesday just gone, the one before, as a result of the company’s latest offer to seven, seven, six and a half, so they reduced it in the third year.
PN37
Has that offer been met by the company?---No, it hasn’t.
PN38
Mr Murphy, the employees board claims for the matters identified at paragraph 8 have been on the table, can you inform the Commission as to how long they have been effectively on the table?---Those issues have been on the table since I first started meeting with the company.
PN39
When was that approximately?---That would have been July, June or July.
PN40
One final question, the parties have been negotiating as you said about particular wording. Can I show to you a document and I’ll have you identify it if possible. Are you aware of this particular document?---Yes, I am aware of this document.
PN41
Are you aware of who prepared this document?---This document was prepared by EDI Rail.
PN42
Has this document formed the basis of your negotiations thus far?---Yes, it has, since 14 August, this is the only document we’ve been discussing.
**** STEVE MURPHY XN MR NEILSON
PN43
Yes, thank you your Honour, I seek leave to tender a copy of that document, it’s headed EDI Rail Ku Ring Gui Island Maintenance Facility Workplace Agreement 2006 to 2009 draft. Your Honour on the top of the document you’ll see marked exhibit R3, it is reflective of the exhibit that was previously tendered in the past proceedings.
PN44
THE SENIOR DEPUTY PRESIDENT: But they are not all paragraph 6 this time?
PN45
MR NEILSON: No.
PN46
THE SENIOR DEPUTY PRESIDENT: Okay.
PN47
MR NEILSON: I have no further questions for this witness thank you your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Franklin?
<CROSS-EXAMINATION BY MR FRANKLIN [7.44AM]
PN49
MR FRANKLIN: Mr Murphy a number of meetings have taken place since the previous proceedings occurred, is it fair enough to say that during the course of those meetings, the remaining issue the company regards as prohibitive content, the termination clause also known as the duration clause, also possibly know as the renegotiation clause, has still been a sticky point?---We do have an issue outstanding around the termination agreement.
PN50
The words that are still subject of much discussion and are also subject to discussion in the decision by his Honour on 31 August, are they the same words that the union is pressing for in the current agreement?---The words we are pressing for is in clause 11 of my statement.
PN51
Do you agree that they are the same words that you were pressing under the old matter?---That’s correct.
**** STEVE MURPHY XXN MR FRANKLIN
PN52
That’s correct, so this document that Mr Neilson just tabled, the one prepared by EDI Rail, am I correct in saying that’s been agreed in principle, subject to the addition of those words that the AMWU are seeking to be inserted into the document?---There’s agreement in principle around the content of the document, we have still got a number of claims that are outstanding.
PN53
Yes, but with the exception of those claims. The wording has been agreed?---Yes, around - - -
PN54
With the exception of the addition of those words?---Yes, there were a number of clauses that remained outstanding last time, which were employee representative consultation, they’ve been finalised, but we have this clause still under discussion.
PN55
Yes, so the remaining item, I suppose, in terms of content that still is unresolved and still is a major sticking point is that clause that you refer to in paragraph 11 of your statement?---That’s correct.
PN56
You want that added to the agreement?---Yes, we want a clause that deals with how the agreement is going to be terminated.
PN57
Okay, so is it also true that on 14 August you tabled a revised position in respect of what was the old clause 5 the incorporation clause?---Yes, there was a clause that was tabled in relation to that was incorporation of the award terms.
PN58
Yes?---That clause was developed through a number of agreements, not just EDI, but a number of agreements that were going on around the industry and that clause was developed between the AMWU and the Australian Industry Group.
PN59
Now I would like to table a copy of that, your Honour.
PN60
THE SENIOR DEPUTY PRESIDENT: Thanks.
PN61
MR FRANKLIN: I do not wish to discuss paragraphs (a), (b) or (c) but I’d like to take you paragraph (d) or subclause (d) as it would have been. If we go to the second last paragraph. Can I ask you this, can you just read out what the second last paragraph says in that clause?---You have to note too that we advise Mr Wilson the first sentence was - - -
PN62
Yes, I know that, but I’ll get to that.
**** STEVE MURPHY XXN MR FRANKLIN
PN63
MR NEILSON: Perhaps if the witness could be allowed to complete his answer.
PN64
MR FRANKLIN: Sorry?---We advised Mr Wilson that the first sentence had been determined in that second paragraph, second last paragraph, and that first paragraph had been determined as a prohibitive content but the second sentence was okay.
PN65
THE SENIOR DEPUTY PRESIDENT: Sorry, can you just speak up, say again I didn’t hear you?---We advised Mr Wilson around this clause that the first sentence that deals with recognition of collective bargaining had been flagged up by the OEA, but the second part of that paragraph was okay. I’ll read it out if you want.
PN66
MR FRANKLIN: Okay, would you read it out, read out the original
paragraph?---It says:
PN67
The parties to this agreement recognise the benefits of collective bargaining to establish and maintaining a positive and mutually beneficial relationship and providing stability and job security in the workplace. This agreement will continue in force. After its nominal expiry date pursuant to the Act and will not be terminated except to be replaced by a new agreement that is mutually agreed to by the parties.
PN68
Thank you. Now what is the process that you are currently involved in at EDI Rail, what are you doing right now?---What are we doing right now?
PN69
Yes, what are you doing with EDI Rail right now?---We are discussing the proposed new agreement.
PN70
Negotiating the proposed new agreement?---We are.
PN71
So in terms of the clauses as it now stands?---Yes.
PN72
Am I correct in saying that the original paragraph here expressed an intention that the current agreement would be replaced with a collective agreement?---It doesn’t say that at all.
PN73
MR NEILSON: Your Honour, I don’t see how the witness can give that particular evidence.
**** STEVE MURPHY XXN MR FRANKLIN
PN74
THE SENIOR DEPUTY PRESIDENT: Well I suppose he can give his opinion.
PN75
MR NEILSON: Yes, I don’t know how that assists the Commission.
PN76
THE SENIOR DEPUTY PRESIDENT: Exactly, the weight that it carries is another matter. I mean I will allow the question.
PN77
MR FRANKLIN: Thank you?---The paragraph as it’s worded doesn’t mention what form of agreement a new or replacement agreement would take.
PN78
But it does mention collective bargaining?---But that’s agreed to at the start of this agreement, not at the end of it.
PN79
But it conveys an impression of collective bargaining, doesn’t it, because it says the agreement recognises the benefits of collective bargaining to establish a positive and mutually beneficially relationship, correct?---That’s what it says.
PN80
Thank you. You are now involved in a process of negotiation for a new agreement?---A union collective agreement.
PN81
That’s right, a union collective agreement and the clause that you want in the agreement, let’s take your point, you came back the day after tabling this, having found out that it was prohibitive content in that form and said that you’ve now changed your position to this agreement will continue in force after its nominal expiry pursuant to the Act, it will not be terminated except when replaced by a new agreement or as mutually agreed by the parties. How do we get to the new agreement? What happens?---That’s up to the parties to determine.
PN82
But how do we get there? How do we get a new agreement?---The company could come out the day after it expires and offer AWAs, a new agreement would be in place.
PN83
But how do we get to a new agreement though? What has to happen even with AWAs?
PN84
MR NEILSON: Your Honour, is my friend asking for a legal opinion here as to how we get there?
PN85
MR FRANKLIN: No, I’m asking how do we get there?
**** STEVE MURPHY XXN MR FRANKLIN
PN86
MR NEILSON: Well there’s plenty of variables on how a particular agreement.
PN87
MR FRANKLIN: Well you have undertaken to get to an agreement.
PN88
MR NEILSON: You need to be specific about what process you are actually asking about.
PN89
MR FRANKLIN: Is there a process of negotiations to take place to get to a new agreement? Is there?---Who knows, it could be just an offer.
PN90
That’s not reaching a new agreement, that is an offer. Is there a process of negotiations that normally takes place to get to a new agreement?---Depends what the offer is.
PN91
No, answer the question?---It could be a take it or leave it AWA.
PN92
It could be, but is there normally a process of negotiation that takes place when you have one collective agreement to be replaced by another agreement?---Under the old Act, there always is.
PN93
Let me ask you another question. You say in your statement that the clause that you are looking for is the agreement will continue in force after its nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement, correct?---That’s what it says.
PN94
What about the words, or as mutually agreed by the parties, what happened to them?---We spoke to Dave around this clause because there was a view of the company that – or a perception that those words were prohibitive content so we supplied this clause for two purposes. One was for Mr Wilson to see what the AIG had developed around wording and what had been approved up until the point when this was tabled. In a number of other agreements that we’ve been negotiating with companies, with the AIG, had been approved by the office of the employment advocate.
PN95
Now just on that basis, so the words – can you just confirm for me what words you are actually looking for in the current agreement? Are they all the words in that last sentence in that documents that I’ve just tabled that you have a copy, or are they the words of your statement?---The words of the statement are the words that we are seeking. If the company wants to add, or as mutually agreed by the parties they are entitled to table those. This clause was tabled for the purpose, as I said, to say this is what’s been approved by the OEA up until that date. This is what the AIG has agreed to and helped draft up and this is what is getting through, this is what other agreements have in place for their consideration.
**** STEVE MURPHY XXN MR FRANKLIN
PN96
Let me ask you another question, you have made or you have emphasised, or you have reiterated on a number of occasions, that the clause you are seeking is a clause in respect of termination?---That’s correct.
PN97
Well why do you have words, when replaced by a new agreement, why are they in there? Why do you need the words, when replaced by a new agreement if the clause is to do with termination?---They’re the words that fit what needs to be done.
PN98
Well that’s not true though, can I put it to you this way. Why wouldn’t you just have a clause that says the parties will not terminate the agreement?---The company has never proposed those words.
PN99
It’s not up to us, we don’t want the words, we’ve got a duration clause in there?
---Well the company is clear on exactly what our claim is, if they’ve got alternative wording, or they’ve got advice
around some wording that’s more effective or does the job better, they are at the table at all times.
PN100
Hasn’t the company said to you on a number – sorry I apologise. Hasn’t the company said to you on a number of occasions that first of all they regard the words in your claim as being matters that deal with prohibitive content in respect of the renegotiation of a new agreement?---Since 14 September in my notes, those words have never come up. The words we’ve been told, is that the corporate position is that it won’t be going in the document.
PN101
Correct, now for obvious reasons that it is prohibitive content?---That’s not been raised since the 14th.
PN102
Well the company has raised on a number of occasions, am I correct in saying that on a number of occasions expressed the point and did so on the last proceeding date of this matter that those words they regarded as prohibitive content?---Prior to the 14th that was the company’s position.
PN103
You haven’t had anything from the company to say that they don’t regard it as prohibitive content have you?---Since 14th only view the company has expressed is the corporate position is that it won’t be going in the document.
PN104
I put it to you that the company hasn’t changed its position with respect to prohibitive content? Again I come back to you and I say to you though - - -
**** STEVE MURPHY XXN MR FRANKLIN
PN105
THE SENIOR DEPUTY PRESIDENT: Sorry, was that a question?
PN106
MR FRANKLIN: I beg your pardon your Honour.
PN107
THE SENIOR DEPUTY PRESIDENT: Was that a question, you put it to him but you didn’t give him an opportunity to answer.
PN108
MR FRANKLIN: Okay, well I’m asking, do you believe that the company has changed it’s position in respect of prohibitive content?---I think they still have a view that it may be. We’ve provided evidence to the contrary.
PN109
What evidence have you provided?---Clauses that have been given the tick by the office of the employment advocate during the pre-lodging review stage.
PN110
Isn’t it correct on 14 August you table this document thinking this had approval of the office of the employment advocate is that correct?---That’s correct but you can only act on the - - -
PN111
You changed your mind on the 15th is that correct?---You can only act on the advice you’ve got at that time, the advice came through after a second review by another person at the office of the employment advocate that the first sentence in their belief promoted collective bargaining as the only way of delivering positive and mutually beneficial relationships and stability and job security.
PN112
Can I come back to you again, can I just ask you the question one more time. If the clause is about termination, why doesn’t it just say the agreement – this agreement will not be terminated by either of the parties?---Is that a proposal?
PN113
I’m asking you the question, I’m not putting a proposal, I’m asking you a question, why doesn’t it say that?---We believe that this wording does two things. It provides for a manner of termination but it says there that the agreement continues in force.
PN114
But again I say to you, if it’s a termination clause, what’s it about? Is it about termination of the agreement, preventing termination?---It is about termination of the agreement.
PN115
Then why again, can I ask you one more time, why does it have to have the words when replaced by a new agreement?---The obvious answer I can give, is because if you didn’t have those words in there it would never be able to be terminated even if there was a new agreement.
**** STEVE MURPHY XXN MR FRANKLIN
PN116
Well first of all, I won’t comment to you, right now I’m not going to go into the issues about termination and replacement. I just put it to you that this clause is not really about termination is it? It is about making sure that the current agreement is replaced by a new collective agreement?---It doesn’t say that in there at all, I’m not sure how you are reading that.
PN117
Well?---Agreements take all different forms under the Act.
PN118
I beg your pardon?---Agreements take all different forms under the Act, there are a number of different types of agreements.
PN119
Do you realise in the prohibitive content it says that a term of a Workplace Agreement prohibitive content to the extent that it deals with the following, the renegotiation of a workplace agreement?---It doesn’t deal with any renegotiation whatsoever.
PN120
Again I ask you, how do we get to the new agreement?---It can be a number of matters.
PN121
Name some?---Well it could be a take it or leave it offer.
PN122
That’s not an agreement?---It can be a project agreement.
PN123
That’s not an agreement, that’s not the process of getting there?---It could be drafted up by solicitors.
PN124
That’s not a process, how do you get to an agreement?
PN125
MR NEILSON: Your Honour, the witness has answered the question. You get to an agreement by one party making an offer, and the other party accepting it. There is no actual requirement for there to be any negotiations whatsoever.
PN126
MR FRANKLIN: Well?
PN127
MR NEILSON: You can get to an agreement with an employer for instance saying here’s your AWA take it or leave it, the employee signs it, there’s your agreement.
PN128
THE SENIOR DEPUTY PRESIDENT: Perhaps this is a matter for submissions.
**** STEVE MURPHY XXN MR FRANKLIN
PN129
MR NEILSON: I don’t understand how the witness can be asked to answer the question given the answers he’s already given your Honour.
PN130
THE SENIOR DEPUTY PRESIDENT: Yes, I mean there’s been an in iterative question and answer here. Go ahead.
PN131
MR FRANKLIN: Mr Murphy I just want to ask you one last question so that I am – I have the understanding of what you are actually claiming. The clause that you are claiming now to be added to the agreement is it the last sentence of the paragraph that we’ve been discussing here, or is it the one that’s in your statement?---It’s – our claim is for the wording that’s in my statement in clause 11. If the company has alternative wording we’ve always said that we are happy to have a look at that.
PN132
Thank you I’ve no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Neilson?
<RE-EXAMINATION BY MR NEILSON [8.01AM]
PN134
MR NEILSON: Mr Murphy just a couple of questions in reply. You have the document which is headed award terms which are incorporated in this agreement?---Yes.
PN135
You see the words, the parties to this agreement recognise the benefits of collective bargaining?---Yes.
PN136
Is that a claim that is being pursued by the union?---No, it’s not.
PN137
Was it a claim being pursued by the union at the time of tabling this particular document?---No it wasn’t.
PN138
On what basis was this document provided to the company?---It was provided, firstly as informative, so they could understand exactly what clauses would be negotiated around inclusion of award terms and around the termination clause. Secondly to highlight exactly what had been approved by the office of the employment advocate and we came back as soon as we got the advice that first sentence had been viewed as prohibitive content by the office of the employment advocate and we advised the company straight away.
**** STEVE MURPHY RXN MR NEILSON
PN139
Mr Murphy the issue relating to award incorporation is that an issue outstanding between the parties?---The incorporation of the award terms in the document has been resolved.
PN140
This document, do you recall what date this document was tabled?---14 August.
PN141
Do you recall what date you advised the company as to the interpretation of that second last paragraph?---I believe it was the 15th. It wasn’t very long after I tabled it because I apologised to them.
PN142
Has that particular clause been the subject of any discussion since that date?---The first sentence?
PN143
Sorry, yes the first sentence?---The first sentence, no it’s never been part of the discussions.
PN144
Mr Murphy in relation to the agreement that you’ve been provided the draft workplace agreement?---Yes.
PN145
My friend took you to some questions in relation to whether that document had been agreed in principle, do you recall those questions?---Yes.
PN146
You indicated that that document had been agreed in principle insofar as the matters contained within it, is that correct?---That’s correct.
PN147
But the issues relating wages, superannuation, annual leave, and those types of claims, they’re not reflected as an agreed position in that document?---No, they don’t have any – I don’t think they’ve got a wage increase figure in there. The issue of superannuation and the other claims have not been improved from where the company is.
PN148
So would it be fair to say that that document is a skeleton of what has been agreed thus far?---Yes.
PN149
I have no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you Mr Murphy, you are excused.
<THE WITNESS WITHDREW [8.04AM]
PN151
MR NEILSON: Your Honour, that closes the union’s evidentiary case. There are a number of submissions that we wish to make, but I understand my friend may wish to call a witness.
MR FRANKLIN: Your Honour, I would like to call Mr David Wilson.
<DAVID WILSON, SWORN [8.04AM]
<EXAMINATION-IN-CHIEF BY MR FRANKLIN [8.05AM]
PN153
MR FRANKLIN: Mr Wilson could you state your name and position to the Commission please?---Yes, David Wilson, I’m the northern area manager for EDI Rail eastern division.
PN154
Do you have a copy of an affidavit that you prepared on 11 September?---Yes, I do.
PN155
I would just like to ask you a couple of questions in respect to that. Since the commencement of the previous application for a protective action ballot by the union, what has been discussed in the negotiations?---There’s been a number of clauses that we’ve still discussed. Employees representatives, the supplementary labour the relationship to the parent award, and the termination of the agreement have been the four major talking points.
PN156
So in respect of the substance of the negotiations that has taken place, has the majority of time been spent on resolution of those matters?---Yes, that’s where most of the time has gone with those meetings.
PN157
Which of those matters is still outstanding?---The only one I understand left is the termination of the agreement or how it would take place.
PN158
Is that the one that originally was under the duration clause?---Yes, that’s correct.
PN159
What is the claim at the present time? What do the unions want in the agreement?---They want a continuation of the current agreement until such time that a new agreement is in place. It is the last paragraph that was given to us by Mr Murphy.
PN160
Are you aware of the statement made by Mr Murphy in respect of these proceedings? Have you seen a copy of that statement?---Yes.
PN161
If I read this out to you, can you tell me whether this is the clause that’s being pressed by the union:
PN162
This agreement will continue in force after it’s nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement.
PN163
?---Or mutually agreed by both parties, I think is also on there.
**** DAVID WILSON XN MR FRANKLIN
PN164
So you believe that the words, or as mutually agreed by the parties, is still part of the claim?---Of the last one that I had presented to me, yes.
PN165
What’s been your response as the lead negotiator on behalf of EDI Rail to that clause?---When that was presented to us we gave that, I guess, a look, we went to our corporate and our standing right from that point, has been that we wish not to put that in the document, that our legal advice indicates that it may have prohibitive content in it and that we would prefer to go with the legislation as it is.
PN166
Have you, other than your legal advice, have you sought the advice of any other person about their impression, or their opinion on that clause?---Yes, I have. I have discussed it with the AIG also, who represents the company.
PN167
What was the AIGs response?---Their response was while this has been presented at various companies, that it is up to the company to make their own decision on whether they wish to go down this path. Having said that the recommendation was that if your corporation decision is to not, then that would be understandable.
PN168
Why do you think they would say it would be understandable?---I guess the feed back that I got from the AIG was you were best to stick with what the legislation states, and goes with what the rules are.
PN169
By rules, what do you think they meant by that?---I guess the outcome, the options that you do have at the end of the agreement and the 90 day termination is now a clause that’s been added to that.
PN170
Were any comments made about prohibitive content?---No, not directly to say that whether that was prohibitive or not, that wasn’t mentioned at that stage.
PN171
In respect of your legal advice has anything changed about the clause and concerns about prohibitive content?--- No, the company has been very consistent with the understanding of that.
PN172
The understanding of that being what?---Prohibitive content.
PN173
I’ve no further questions your Honour.
PN174
THE SENIOR DEPUTY PRESIDENT: Thank you, do you wish to tender the statement?
**** DAVID WILSON XN MR FRANKLIN
PN175
MR FRANKLIN: Yes, sorry your Honour. That was the statement I actually gave to you earlier this morning.
PN176
THE SENIOR DEPUTY PRESIDENT: Yes, but it wasn’t tendered at that stage.
MR FRANKLIN: I can officially tender it now. I’ve given a copy to
Mr Neilson.
EXHIBIT #R1 STATEMENT
THE SENIOR DEPUTY PRESIDENT: Mr Neilson?
<CROSS-EXAMINATION BY MR NEILSON [8.10AM]
PN179
MR NEILSON: Mr Wilson, you’ve been part of the negotiations since the commencement is that correct?---Yes, that’s correct.
PN180
When did the negotiations roughly commence?---Late March, early April the original.
PN181
The negotiations have been on the basis that the parties had agreed that there was to be a replacement collective agreement to the one that had just expired?---Yes.
PN182
The parties had agreed that there was going to be a claim put forward by the company in relation to what they wanted included in the
proposed agreement?
---Yes, that’s correct.
PN183
The union agreed that they were going to put forward a claim and there’d be some discussions about hopefully meeting in the
middle and reaching
agreement?---Yes, That’s correct.
PN184
It’s been on that basis that the negotiations have continued on between the parties, can I characterize it this way, that there’s a claim put by a company, it’s responded to by the union with a counterclaim, there’s sometimes a meeting in the middle and there’s sometimes a position whereby each party says no, this is what we want?---Yes.
PN185
So it’s fair to say that for each claim that’s been put forward by the company the union has responded to that?---That’s correct.
PN186
And it is fair to say that for each claim put forward by the union, the company has in fact, responded to that?---Yes.
**** DAVID WILSON XXN MR NEILSON
PN187
It is fair to say that the company has an offer at the moment in relation to wage increases?---Yes, that’s correct.
PN188
Those wage increases offered by the company are for a 4, 4 and 5 per cent increase over a three year agreement?---Yes.
PN189
And the union’s position remains for a 7, 7, and 6 and a half per cent increase?
---Seven, 7, 7 per cent I think is the last on record that I have at this stage.
PN190
I put to you that the claim is actually 7, 7 and 6 and a half per cent?---Okay.
PN191
That position has been rejected by the company, the claim by the union has been rejected by the company?---The claim of?
PN192
The claim of 7, 7 and 6 and a half?---At our last meeting yes, we made an offer which had been rejected.
PN193
At your last meeting when was that last meeting held?---29 August.
PN194
Throughout the negotiations is it fair to say that wages or a wage increase has been on the table from the union in relation to what they wanted?---It’s been on the table, yes.
PN195
So it is fair to say in characterizing the negotiations one of the outstanding issues that needed to be resolved was the wage increase?---Yes, that’s correct.
PN196
It is fair to say that there’s also been a claim put in relation to shift allowances and how they are to be paid?---Yes.
PN197
So it is fair to say that in any negotiations between the company that have been held, both parties are fully aware that this is a claim being advanced by the union that still needed to be resolved?---Yes.
PN198
It is fair to say Mr Wilson, isn’t it that the company’s offer of and I will just refer to it, of wage increases, superannuation, shift allowances, annual leave, both quantum and in terms of loading has been the source of some dispute between the parties?---Yes.
PN199
That simply because the union has advanced the position to the company which the company has rejected?---Yes.
**** DAVID WILSON XXN MR NEILSON
PN200
And the company is more than entitled to do that isn’t it?---Yes.
PN201
In fact, the company advanced a claim to the union which it’s rejected?---Yes.
PN202
And in fact, the union is more than entitled to do that, that’s what characterizes the negotiation that’s been ongoing?---Sure.
PN203
Now Mr Wilson, there have been a number of meetings between the parties since the last time the parties were before the Commission, can I seek your confirmation that those meetings have occurred on 14, 18, 22, 24 and 29 August?---Yes, that’s correct.
PN204
In those meetings of course the union has claimed in relation to wage increase, shift allowances, superannuation, annual leave, quantum and all of those main industrial issues, have been on the table and the company has chosen either to move in relation to its position or remain steadfast in what it’s offer was?---Yes, not at each meeting have we made an offer. A couple of those meetings we’ve spent just fixing up some of these clauses.
PN205
But the company is fully aware of the claim in relation to it?---Yes.
PN206
So whilst it might not have been the subject of particular discussion at particular meetings, the company was fully aware of what the union’s claim was?---Yes.
PN207
Mr Wilson, so the issue in relation to the proposed agreement therefore is that the parties have reached agreement on certain items, but there are a number of items that still remain outstanding?---Yes.
PN208
Those items that remain outstanding have been known to the company in the meetings that have occurred between the 14th and 29 August?---Yes, that’s correct.
PN209
So they are not issues that have just been put on the table at the last minute or anything?---No.
PN210
Mr Wilson, you made some reference to one of the outstanding clauses being, I think you referred to it as a termination of agreement clause, and you agreed with my friend when he read to you a clause from Mr Murphy’s affidavit which is the claim broadly sought by the union?---Yes.
**** DAVID WILSON XXN MR NEILSON
PN211
You also referred to a document which may have contained the words, or as mutually agreed between the parties?---Yes.
PN212
Do you recall that?---Yes.
PN213
I just want to show you a document. You see that document it’s headed, award terms which are incorporated in this agreement?---Yes, I do.
PN214
Mr Murphy provided a copy of this document to you at your meeting of 14 August?---That’s correct.
PN215
Mr Murphy came back to you on 15 August with a view in relation to the second last paragraph?---Yes, he did.
PN216
Mr Murphy confirmed to you that the second last paragraph had been held, or a view was formed that it may in fact be prohibitive?---Yes.
PN217
He apologised to you for providing you with that clause?---Yes.
PN218
And he obviously said to you that this obviously we don’t want this in the agreement?---That’s correct.
PN219
In fact, this document was provided to you for your information only in relation to how an award could be incorporated into the agreement, wasn’t it?---Yes.
PN220
So it wasn’t exactly a claim put forward by the union was it? It was a document provided for your information for the basis of future discussions?---Yes, yes.
PN221
So Mr Wilson, you went away and spoke to the AIG in relation to this document?
---Yes, I did.
PN222
You sought advice in particular in relation to the words, that the agreement will remain in force until terminated and replaced by
a new agreement is that correct?
---Yes.
PN223
The AIG I think in your evidence earlier said to you that they could understand your corporate position in relation to resisting that clause?---Yes.
PN224
The fact is that your corporate position in relation to resisting the clause is premised on the basis that you believe, or your corporate believes, that the 90 day termination provisions are something advantageous to the company?---No, their legal advice of the wording of this was to not put that in, that paragraph.
**** DAVID WILSON XXN MR NEILSON
PN225
Yes, but you said in your answer earlier to my learned friend that you believed you could take advantage I think, of the words?---No, not advantage, run with whatever the legislation.
PN226
So you think that the legislation because it provides for a 90 day termination provision is something that the company should be able
to use if it so chooses?
---If the legislation states that, yes.
PN227
So the company views the 90 day provision as something beneficial to it obviously in terms of wanting to maintain that, the ability to use it if it so chooses?---If it chooses, yes.
PN228
So you would agree with me Mr Wilson, that effectively the termination provision that the company advances, that is the maintenance of the Act is in fact a claim that they’ve put to the union?---No.
PN229
You don’t agree with me with that?---No.
PN230
Well what happens if I put it to you this way. The union has put a termination provision that it proposes to the company, the company has rejected that termination provision, has it not?---Yes, that’s correct.
PN231
So you would agree with me that the union’s put a claim for a termination provision?---Okay, yes.
PN232
Now the company in considering that termination provision, has said, no we don’t want that we would like to rely on the Act, that’s correct isn’t it?---Yes.
PN233
So the company has effectively put a counter claim back to the union in relation to how the agreement is to be terminated, isn’t that correct?---As in the memorandum, is that what you are talking about?
PN234
No, no, what I’m talking about is that the company has said that we prefer to use the Act as it applies rather than have a specific term in the agreement?---No, through negotiations no, we’ve actually acknowledged what they’re asking for and tried to come up with a memorandum to give some level of comfort to not do that.
PN235
The union has never sought a memorandum of understanding from you?---No, but through negotiations they did say they would take that away and it actually went to a vote with employees.
**** DAVID WILSON XXN MR NEILSON
PN236
The execution of a memorandum of understanding has never been specifically put to you as being dependent upon or the agreement being
dependent upon a
MOU?---No, but the level of discussion we were having about it we wanted to acknowledge that we were looking to get a level of comfort
amongst us and the parties.
PN237
So it was something that the company decided to go and do of it’s own
volition?---Yes.
PN238
Now, you agree with me that the terms in the second last paragraph in relation to collective bargaining have not been pursued by the union at all on the basis of your evidence earlier?---The whole paragraph wasn't taken. Only the two and a half lines I was asked to remove.
PN239
Yes, thank you?---Yes, of that paragraph.
PN240
And that relates to the termination of the agreement. Mr Wilson, I put it to you that there is nothing in the union's proposed clause in relation to termination which would obligate the company to renegotiate any form of workplace agreement?---I need legal advise to tell me that.
PN241
Can I just confirm, Mr Wilson, that the union has been willing to meet with the employer in relation to the proposed agreement?---Yes, that's correct.
PN242
And it's not a case that the union has cancelled meetings unnecessarily or anything like that?---No, neither party has done that.
PN243
Yes, thank you. I have no further questions for this witness, thank you.
PN244
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Franklin.
PN245
MR FRANKLIN: I have no further questions either, thanks, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Wilson, you're excused.
<THE WITNESS WITHDREW [8.22AM]
PN247
THE SENIOR DEPUTY PRESIDENT: No further evidence, Mr Franklin?
PN248
MR FRANKLIN: No further evidence, your Honour.
THE SENIOR DEPUTY PRESIDENT: Okay. This document, this one page document that's been referred to several times, it might be simple for identification to mark it as exhibit R2.
PN250
THE SENIOR DEPUTY PRESIDENT: Mr Neilson, we've already marked your written submissions as exhibit A1.
PN251
MR NEILSON: Thank you.
PN252
THE SENIOR DEPUTY PRESIDENT: I can't say I've had time to read them.
PN253
MR NEILSON: No, no. What I propose to do is just to shortly take you through them, your Honour. I will just turn to them. Your Honour, the union submits at paragraphs 1 to 13 of its written outline marked as A1 that the statutory prerequisites in terms of the service of the application, the questions to be filed, the initiation of the bargaining period and the like have in fact been met by the union through this application and I don't intend to go to that in any detail as I take it it's not contested by the respondent.
PN254
THE SENIOR DEPUTY PRESIDENT: And I take it it's not contested - or the issue of pattern bargaining is not an issue here?
PN255
MR FRANKLIN: No, it's not an issue, your Honour.
PN256
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
PN257
MR NEILSON: Yes, so we say that, your Honour, the Commission in determining this application should be mindful, obviously, of the terms of section 461 of the Act and we set out that provision at paragraph 14 of our submission and that provision provides that the Commission must grant an application if it is satisfied that during the bargaining period we've tried to reach agreement, and which we say on the evidence clearly that has in fact been attempted. The applicant continues to genuinely try to reach agreement with the employer and the applicant is not engaged in pattern bargaining. Well, the relevant provisions that we need to focus on in light of the company's concession on paragraph (c) is relevantly paragraphs (a) and (b).
PN258
Your Honour, we deal with that at section 2.1, paragraph 16 through to 18(f), the question in paragraph 461(1)(a) of the Act of whether in fact the union has been genuinely trying
to reach agreement with the employer during the bargaining period. It was the evidence again of Mr Murphy that there have been a
number of meetings between the company and the employer in relation to these issues.
Mr Wilson in cross-examination agreed with the proposition that the company have advanced a number of claims to the union which have
been responded to by the union with a counter claim. Mr Wilson agreed that the union had in fact been prepared to meet with the
company and in fact the company had been prepared to meet with the union and it was not a case whereby the union was capriciously
changing meeting times or avoiding the negotiation.
PN259
Numerous meetings have also been held, your Honour, relevant to this application since the first hearing of this application which
was on 4 August 2006. There have been five meetings since that date whereby there have been discussions in relation to not only
the clauses referred to as generally as employee representatives of award incorporation and consultation on supplementary labour,
which I should add have all been resolved between the parties and do not remain outstanding. There have also been discussions and
offers put in relation to what one might characterise as substantive issues such as wage claims, superannuation claim of the annual
leave quantum, the shift allowances and the like and
Mr Wilson agreed with the fact that the company had as recently put a new offer to the employees which at the last meeting was rejected
by those employees.
PN260
So the notion that since 4 August there has been no discussion in relation to those substantive issues we say is clearly refuted by the evidence and it needs to be kept in mind, your Honour, the evidence of Mr Wilson was that the substantive issues in relation to wage claims, superannuation and those types of issues which may be referred to as the core industrial issues have been on the table since the commencement of those negotiations and so any meeting that has been held between the parties it's not a case whereby the issue of those particular claims have been divorced from them and the company is not aware of what those claims are. The company has been on notice at all times in relation to those claims.
PN261
The reason that 4 August, your Honour, is a relevant date is because of your earlier decision in EDI Rail - sorry, the AMWU v EDI Rail which is located at PR973839 where your Honour made a determination that the union had been seeking prohibited content in relation to a particular clause relating to right of entry. That clause, your Honour, was withdrawn on the day, on 4 August, and we say that as a result of that withdrawal, and the company doesn't contest that it has in fact been on the table since that, the meetings that have occurred subsequent to that hearing enabled the union to file an application such as this one seeking a protected action ballot order because the five meetings we say clearly demonstrate that we have been genuinely trying to reach agreement with the employer during the bargaining period and there has not been the pursuit of any prohibited content.
PN262
Your Honour, can I tender to the Commission three decisions that we refer to. The first of course is your Honour's decision in the EDI Rail matter. The second is a decision of Commissioner Bacon in BHP Coal Ltd and the third is a decision of the High Court in Codelfa Construction Pty Ltd. Your Honour, the first decision is of course your own decision in the EDI Rail matter and for relevant purposes your Honour at paragraph 30 of that decision indicates that in identifying the right of entry clause as your Honour referred to it, that the AMWU actively pursued inclusion of that term in the agreement at least for a short period and did not withdraw it until 4 August.
PN263
Well clearly, your Honour, we say that the withdrawal on 4 August was effective and the meetings that have been held since 4 August
established that the parties have in fact been genuinely bargaining. The evidence of Mr Murphy which we set out at paragraph 18
based on both is statement and his evidence today and in fact I don't think it was in contest the evidence of Mr Murphy as confirmed
by
Mr Wilson is that since the initiation of the bargaining period in May of this year and also 4 August which is the relevant date of
that withdrawal of that deemed prohibited clause, Mr Murphy attended the site for discussions on those five occasions.
PN264
We have genuinely sought to reach agreement, we say, with the employer and still seek to genuinely reach agreement. It's important
to note that genuinely seeking agreement does not necessarily mean that one has to move from their particular claims. The union
has communicated those claims to the company and
Mr Wilson confirmed as such that he is aware of what those claims are. The company has made a counter proposal which the union for
its part has found unsatisfactory and it's entitled to reject those claims. In fact, the union has in fact moved from its original
position in relation to, for instance, the wage claim. Your Honour would be aware that in the original proceedings the union was
seeking originally a claim of 8 per cent as a result of the company agreeing to certain other issues but that claim has now come
into seven, seven and 6.5 per cent.
PN265
So clearly it's a case that the union is prepared to move if the employer is prepared in relation to other issues which we say reflects genuine bargaining on both parties behalf. It's clear from the evidence and from Mr Wilson's evidence in cross-examination that the parties have been unable to reach agreement on key industrial issues. The demands presented by the employer for a new agreement have been discussed with the AMWU membership and Mr Wilson confirmed that those claims have in fact been rejected by those members.
PN266
The AMWU membership has made a decision to seek access to a protected action ballot and that's set out in Mr Murphy's statement and in our view Mr Murphy has never stated or indicated to the employer that reaching a new collective agreement was dependent or contingent upon the execution of a deed or MOU being agreed by the employer and I don't think that the employer suggests as such in its evidence. In fact, Mr Wilson clearly enunciated that it was the company that initiated those discussions and the union had never sought to link the two issues. That brings us, your Honour, to the second question and that is whether the AMWU is genuinely trying to reach agreement with the employer during the bargaining period which is section 461(1)(b).
PN267
We say again that on the evidence the Commission should be satisfied that we are indeed trying to reach such an agreement and we set out paragraph 19 through 33 of the submissions the issues that we rely upon in support of that contention. It's clear that the union remains willing to meet with the employer in order to discuss the proposed agreement. That is set out in Mr Murphy's affidavit. There has been some speculation and this is the controversial issue and I think the only issue for your Honour really to determine in these proceedings, is to whether paragraph 11 of Mr Murphy's statement is indeed prohibited content for the purposes of the Act and your Honour dealt with that contention and albeit did not decide or need to decide that issue in your earlier decision in EDI Rail.
PN268
Your Honour dealt with the contentions of the proposed renegotiation clause which is in substantially the same terms as that identified at paragraph 34 of your Honour's decision and at paragraph 39 your Honour indicated that you had from a practical viewpoint had some difficulty with our submission being that it was not a clause dealing with the renegotiation of a workplace agreement and your Honour goes on to indicate - - -
PN269
THE SENIOR DEPUTY PRESIDENT: No, no, no, only with the submission that I quoted there.
PN270
MR NEILSON: Your Honour, well then your Honour obviously characterised -goes on to say -
PN271
Characterisation of the claim is finely balanced.
PN272
THE SENIOR DEPUTY PRESIDENT: Yes.
PN273
MR NEILSON: And then says that -
PN274
It can be characterised as a claim which deals with renegotiation, or in some circumstances it could also be characterised as a term on termination.
PN275
And then indicate that
PN276
Given the context from the evidence I lean towards the former characterisation.
PN277
But your Honour indicates that you need to decide this matter and that is obviously why we are before you today. In our view, your Honour, the proposed clause is not on its face a clause dealing with renegotiation and we submit that the evidence clearly demonstrates that it has never been put to the company that they are in fact obliged to renegotiate the proposed enterprise - or a proposed new agreement at the expiry of the old agreement. Mr Murphy in his evidence clearly referred to it despite numerous attempts by my friend to characterise it as a renegotiation clause.
PN278
Mr Murphy referred to it on a number of occasions as the termination clause and in fact Mr Wilson in cross-examination also referred to it as the termination clause. It's never been put to the company that it's a renegotiation clause and none of the evidence establishes the fact that such a claim has indeed been put. Now, there was some contention - sorry, your Honour, the only area identified by the respondent in suggesting that the proposed clause is in fact prohibited is regulation 8.5(1)(e) which we deal with at paragraph 23 which deals with -
PN279
A term of a workplace agreement is prohibited to the extent that it deals with the following -
PN280
And then (e):
PN281
The renegotiation of a workplace agreement.
PN282
At paragraph 24 we set out the question that we think that the Commission must determine in order to decide the issue of whether or not the clause is in fact prohibited and that question is whether the clause pressed by the union requires EDI as a person bound by the agreement to negotiate and/or conclude a future agreement and in our view the answer to the question must be no. Your Honour, in interpreting the proposed clause and applying its terms we cite the decision of the High Court in Codelfa Construction v State Rail Authority which is well settled authority for the proposition that clauses should be read on their face and applied as such and we set out the comments of Mason J at page 352 at paragraph 25 and also 26 of our submission.
PN283
We set out at paragraph 27 that in determining the matter the Commission must look to the words used and we assert that reading certain items into proposed clauses or inferring intentions to parties is not a proper way in our respectful submission for the Commission to determine whether a proposed clause contains prohibited content because when this agreement is ratified by the parties or by the Office of the Employment Advocate, if it ever comes to a court for interpretation it will be applied on its face and clearly on reading that clause there is no obligation on the employer to renegotiate a workplace agreement.
PN284
Now, the term negotiate we set out the definition as it was held in the decision of the High Court in Wally v Western Australia where they basically set out the definition of the new Shorter Oxford English Dictionary and it can be broken into two parts -
PN285
To communicate or confer with another or others for the purposes of arranging some matter by mutual agreement, or have a discussion or discussions with a view to some compromise or settlement.
PN286
In our submission, your Honour, we set out at paragraph 29 that there is nothing in the proposed termination clause which would require EDI to do either/or of those particular things. There's nothing which requires them to communicate or confer with any particular parties, or there's nothing for them to have a discussion with a view to some compromise or settlement. If EDI decides that they do not wish to enter into or do anything then they don't have to. There is nothing in that clause which imposes upon them a mandatory obligation to renegotiate and that in our view is how the regulation in relation to a prohibition on renegotiation must be viewed.
PN287
It must impose some form of mandatory obligation upon an employer or a party to do something and this clause in our view does not impose any mandatory obligation upon EDI. Your Honour, at paragraph 31 we set out that obviously your Honour did not find that the proposed clause directly offended the provisions of the regulation having not needed to decide that particular question at that time. But your Honour made a broad observation in our view that the term will be prohibited if it deals with a prohibited matter in a way that is direct as opposed to inconsequential or remote and your Honour deals with that at paragraph 29 of the EDI decision.
PN288
In our view on a reasonable reading of the proposed clause it cannot be said to be directly mandating the renegotiation of a workplace agreement and therefore in our view it cannot be said to be prohibited. The renegotiation clause, your Honour, was a clause that was quite common in agreements registered prior to the enactment of Work Choices on 27 March. At paragraph 23 we set out what we think to be a typical renegotiation clause that we found in a workplace agreement that was in force between Skilled Engineering for instance and there's two parts to that particular renegotiation clause.
PN289
THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph?
PN290
MR NEILSON: Sorry, paragraph 35 of our submissions. It's paragraph 23 in the agreement that we refer to. Paragraph 23.1 states:
PN291
The company and the union agree to commence negotiations for a replacement agreement no more than three months prior to the agreement expiring in a forum.
PN292
And I'm not sure what in a forum means and 23.2 imposes obligations to bargain collectively in relation to any matter arising from the agreement, be its extension, variation or renegotiation. Those two paragraphs we say clearly set out what is the typical renegotiation clause that had been in agreements prior to the enactment of Work Choices and that, we say, is what the regulation that we refer to is specifically aimed at prohibiting and we say that clearly if this clause was sought or a clause of this nature was sought after 27 March it would be prohibited. From an analysis of the above clause we set out at paragraph 37 it imposes a clear obligation on the parties to commence negotiations for an agreement but that, we say, is the mandatory provision in relation to negotiation that is required for a proposed clause to meet the terms of the regulation and then the clause also imposes obligations on how the agreement is to be negotiated.
PN293
When one compares a clause of this type at paragraph 35 with our proposed clause it does not have in our respectful submission or our proposed clause does not have the inherent characteristics for it to be a renegotiation clause. Our clause does not in our view impose any obligation upon the company negotiate as it's defined. It does not impose any restriction on how a replacement agreement is to be reached, either through collective or individual bargaining. In fact as we set out paragraph 38, the employer could quite simply offer an AWA without any negotiation at all. It could offer a collective agreement without any negotiation at all.
PN294
There is no requirement under the terms of the Act for any particular party to negotiate, of course if you want to access protected action you have to negotiate, but if a party wants to say, well, we refuse to negotiate then they are more than entitled to do that and our clause does not impose any mandatory obligation upon them.
PN295
THE SENIOR DEPUTY PRESIDENT: Presumably offer and acceptance would be negotiation.
PN296
MR NEILSON: It's not, in our view, in the terms. It's not at all. Your Honour, the definition that refer to at paragraph 28:
PN297
Communicate or confer for the purposes of arranging some matter by mutual agreement.
PN298
So there must be a communication or conferral in relation to the issue or have a discussion with a view to some compromise or settlement. And offer and acceptance is not a negotiation. A negotiation can be properly characterised - - -
PN299
THE SENIOR DEPUTY PRESIDENT: It's a pretty smooth negotiation - - -
PN300
MR NEILSON: Well, for some people it might be, your Honour, but it's not in our view a negotiation because negotiation typically entails giving and froing, one party will say, well, we want this and the other will say, well, we will want this. There'll be a meeting of the minds in the middle and then eventually there'll be an agreement. A negotiation is not characterised by one party saying this is our offer, take it or leave it. That is not a negotiation in our view. Your Honour, at paragraph 39 and 40 we refer to the decision that I handed up of Commissioner Bacon in the BHP Coal which is PR904284. This decision of the Commissioner was a decision relating to termination of an agreement and at paragraph - I'll just turn to it. At paragraph 56 of the Commissioner's decision he sets out a clause that was included in what he refers to as the Saraji agreement and the clause that is contained is that -
PN301
The agreement will continue in force after its nominal expiry date pursuant to the Act until such time as it's replaced by a new agreement.
PN302
That is of course consistent with what the proposed clause is here and the Commissioner deals with the termination question which we say arises or what is sought to be dealt with in our clause in the following way, and we set it out at paragraph 40 that -
PN303
The Act provides a number of ways in which the parties intended an agreement to cease to operate. The bargaining parties to this agreement agree to limit the ways in which this agreement would cease to operate.
PN304
And we say that's all our proposed clause seeks to do and is something that is consistent with the Act and the Commissioner in dealing with the application to terminate that particular agreement rejected the application on the basis that the parties had agreed that it would not be terminated unless the provisions of clause 4.3 had in fact been met. Your Honour, that we say deals with the submission as to whether in fact the clause is in fact prohibited and we rely upon our written submissions in that regard. Can I just deal with briefly - - -
PN305
THE SENIOR DEPUTY PRESIDENT: Just before you move off that,
Mr Franklin put a question to Mr Murphy along the lines of, well, why was the wording "except when replaced by a new agreement"
added, why wasn't it the agreement will not be terminated. Now, one could argue that a clause that said the agreement will not be
terminated doesn't contain any prohibited content and whether it could be effective is another matter, but is there something you
want to say on that issue?
PN306
MR NEILSON: Your Honour, there's two I think, two issues that relate to that. There are questions about whether such a clause would in fact be effective because of the fact that the - just excuse me. If there was a provision in the agreement that said that it would not be terminated, there would be questions about how in fact it would be replaced by a new agreement, what its relationship is to that new agreement. The second issue relates to whether in fact we are required to compromise what we say as being a reasonable and valid provision. There can be a number of hypotheticals put, well, why don't you instead of claiming 6.5 per cent a year, why don't you structure it in 2 per cent increments or anything like that. There are a number of hypthotheticals in negotiation that could be put.
PN307
We say that the claim is the claim and we say that it's perfectly reasonable and legitimate and that whilst there may be scope to consider other provisions, that is not what we are advancing at this particular time.
PN308
THE SENIOR DEPUTY PRESIDENT: But nevertheless we have to characterise the claim.
PN309
MR NEILSON: You do.
PN310
THE SENIOR DEPUTY PRESIDENT: And so, you know, the question is how is it to be characterised and therefore those things do come into play.
PN311
MR NEILSON: It does come into play but only comes into play in our view insofar as that when one reads it, it clearly states that it will only be terminated except by a replacement agreement, that is the precondition that the parties have put on the termination of the agreement and that is the only way in our view that it can in fact be characterised.
PN312
THE SENIOR DEPUTY PRESIDENT: Well, you know, Mr Franklin submitted last time and he's here to speak today, but the submission last time was that addition essentially makes it a term about renegotiation.
PN313
MR NEILSON: I think Mr Franklin last time was submitting that the termination clause itself was in fact renegotiation. He's now narrowed that submission to say that the submission is that the words "except by a replacement agreement" are in fact the requirement for there to be a renegotiation.
PN314
THE SENIOR DEPUTY PRESIDENT: Well, we may be putting words into his mouth so perhaps we should wait.
PN315
MR NEILSON: Yes, sure.
PN316
THE SENIOR DEPUTY PRESIDENT: But there's nothing in particular you wanted to say about that?
PN317
MR NEILSON: No, your Honour, apart from the fact that that is the claim as advanced and we say it's a legitimate claim and it's not dealing with renegotiation. The last point, your Honour, that we seek to deal with is exhibit R2. This was not a claim put by the union. So much so was confirmed by the evidence. It was a document put to Mr Wilson for his information only so that he could seek advice in relation not what had been gained in other sites. Mr Murphy upon getting advice from the Employment Advocate, or from somebody, that the second last paragraph may in fact have been prohibited despite being approved earlier, indicated that he went and spoke to Mr Wilson and Mr Wilson confirms as such and indicated to him that this was not a clause that was in fact being sought, nor was it ever sought and we don't see that the words in the first three lines of the second last paragraph would affect the claim as advanced by the union in terms of the application for a protected action ballot and Mr Wilson's evidence confirms as such.
PN318
Your Honour, at paragraph 2.3 we don't deal with it in any detail but we say that the provisions in relation to pattern bargaining have been satisfied. At paragraph 44 through to 45 we deal with the application being consistent with the Act and then we say that the form of the order are in fact consistent also with the Act and we rely upon those written submissions, your Honour. But we make it clear and express that in our view there is nothing in the proposed termination clause that would oblige the company to renegotiate and thus the Commission should be satisfied on its face that it is not a prohibited content item such as to prevent the union from accessing the protected action ballot provisions.
PN319
Your Honour, apart from that clause there is nothing else, we say, that would prevent the Commission from ordering this ballot to take place. If the Commission is satisfied that that clause is legitimate then I presume that the company's objection to the proposed ballot falls away. We'll leave our submissions at that, your Honour.
PN320
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Franklin.
PN321
MR FRANKLIN: Thanks, your Honour. Your Honour, I'm cognisant of the time constraints here so I will be as succinct as I can and I won't go over old ground and where I can I'll refer to decisions and keep it brief.
PN322
THE SENIOR DEPUTY PRESIDENT: Well, you need to cover what you need to cover.
PN323
MR FRANKLIN: I do. I will. First of all, we believe that as was the case in the previous occasion, the union is still not genuinely trying to reach agreement as it's still pursuing prohibited content in the agreement. We believe that clause 11 or paragraph 11 in Mr Murphy's statement dated 6 September clearly demonstrates that the union is still pursuing a claim in the agreement in the same terms as what I described as the termination, date of operation or negotiation clause, namely, that and I quote:
PN324
This agreement will continue in force after its nominal expiry pursuant to the Act and will not be terminated except when replaced by a new agreement.
PN325
We believe that the union are still pursuing a claim that is prohibited and we take you to your decision where you discuss in paragraphs 15 and 16 in the previous matter how terms are characterised as being prohibited. As you know, in Regulation 8.51 it is a general statement, it says:
PN326
A term of a workplace agreement is prohibited content to the extent that it deals with the following -
PN327
And then it goes on to say in (1)(e):
PN328
The renegotiation of a workplace agreement.
PN329
We do not accept Mr Neilson's argument where he referred to paragraph 24 where in paragraph 24 of his submission he says:
PN330
The question that the Commission must therefore determine is whether the clause as pressed by the union requires EDI as a person bound by the agreement to negotiate and/or conclude a future agreement.
PN331
Well, the regulations are much more broader and general than that. They don't put any mandated requirement on negotiation. They don't put any mandate requirement on reaching a conclusion. They just say a matter that deals with the following, a renegotiation of a workplace agreement. We say that having a clause that says that the agreement will continue in force after its nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement, as we said in the past at the previous hearing, presupposes that there will be a new agreement and we say that new agreements irrespective of the debate that ensued between myself and Mr Murphy don't happen by osmosis. There's actually a process of reaching them and it's normally called a negotiation.
PN332
Now, whether it's characterised as offer acceptance or whether it's a full on bargaining process, there is a process of negotiation required. We also say that if you to the Act and you look at two relevant sections, if you look at section 381 of the Act and 381 of the Act actually says types of termination. It says:
PN333
Types of termination -
(1), a workplace agreement may be terminated by approval (see subdivision (b) and (c)), or be unilaterally, (see subdivision (d)).
PN334
Now, it doesn't say and nowhere in the Act do I believe that it says that an agreement is terminated when it's replaced by a new agreement. The Act quite clearly says termination is effected in two ways, by approval, and that is during the life of the agreement. If one of the parties it wants to terminate, if it's a union collective agreement then it has to be approved by the majority of employees before the final process of approval can be concluded by the Office of the Employment Advocate. And secondly, it also says that post the nominal expiry date parties, either of the parties, can unilaterally apply to have the agreement terminated by giving them 90 days notice, and it goes on to describe how that process is effected.
PN335
It doesn't say anywhere that an agreement is terminated when it's replaced by a new agreement and I again I refer to you to section 347(5) and this I think is the nub of the question. 347(5) says operation - it comes under division 6, of which you would be well aware, your Honour, which is titled Operation of Workplace Agreements and Persons Bound and 347 has a subheading which says:
PN336
When a workplace agreement is in operation -
PN337
It goes on to say under subsection (5):
PN338
A collective agreement ceases to be in operation in relation to an employee if it has, (a), past its nominal expiry date and, (b), been replaced by another collective agreement in relation to that employee.
PN339
So what we say is this, that the clause as proposed by the union is not about termination because it actually refers to replacement of - or replacement by a new collective agreement and that quite clearly comes under section 347(5) which means that for this agreement to be replaced, and I take the point that AWAs have come into the debate but there's been no argument about AWAs, but for a collective agreement to cease in operation the words quite clearly say it ceases but when it's been replaced by another collective agreement. So I have to say and we have to say this, that to get to the collective agreement to replace this one, and that's what the clause says, there has to be a process and that process quite clearly is about renegotiation.
PN340
Now, whether it's said directly or indirectly is a moot point, but it does deal with an issue that in our view is prohibited. Termination is one matter, replacement is another. Termination is one matter, ceasing to operate is another. We say that the agreement that's in the clause is a workplace agreement, it presupposes there'll be one, it must if it uses the word replaced. You discussed this in your previous application - in the previous application and you considered in paragraph 37. In paragraph 37 you made the point about what I said, that if we're going to replace an agreement, which means that the other ceases to operate in my opinion and in accordance with 347(5), then there'll be a new workplace agreement renegotiated. It's a logical conclusion. It's direct, it's not indirectly referring to it. It means it.
PN341
I ask the question, why is it if this is about termination, why don't you just have in the agreement the parties will not terminate the agreement, simple. Now, I know what the implications of that are and I'm certain my friend knows what the implications of that are. It will have no effect under the Workplace Relations Act anyway. By the way, I would make the point that the current clause will have no effect under the Workplace Relations Act because it still wouldn't deprive either of the parties from the right to unilaterally terminate the agreement. The Act overrides it. So it seems to me that it seems like an exercise in futility for a union to be pursuing a clause that will have no effect, other than the fact that it's trying to shore up a process of renegotiation for a new workplace agreement and they thought that by using the guise of termination they would be able to slip through and avoid the implications of the prohibited content, regulations.
PN342
In considering the clause we don't take the matter lightly. It's not the position of EDI Rail to be filibustering a negotiation process because it wants to hide behind prohibited content. We have been consistent since the commencement of this negotiation. As you know in the previous hearing and as the AMWU knows, throughout the whole process of negotiation we have no resiled from what we believe are prohibited content matters and slowly but surely we've now got to the stage where there is one sticking point and it's our opinion that because in the last matter in your decision that you made some reference to the so called termination, come duration, come renegotiation clause that you didn't clearly make the decision about it because you didn't need to, that they continue to pursue that claim.
PN343
Now, we take the point that Mr Murphy on 14 August tabled an incorporation clause which actually covered the process of duration, renegotiation or termination and then changed his position the following day and we accept that. We don't take the point though that that means that the matter is now no longer prohibited because he deleted the first couple of sentences. The first couple of sentences in our opinion quite clearly indicated where the AMWU were coming from anyway. It clearly indicated that they wanted to have a collective agreement and that's what it was all about and because they got hooked up themselves into some sort of interpretation, or somebody has given them an interpretation that they may have been really prohibited, then they wouldn't get it through, they change their opinion. They accept that fact. But the AMWU are still pushing a claim from the company's point of view that's clearly about renegotiation of the agreement and clearly prohibited and the company has been consistent in its approach to that.
PN344
The company has also been consistent in its approach about the fact that having clauses in agreements about termination are irrelevant because once you get past the nominal expiry date the Act can override it. Now, there are things called honour, we accept that too. This company has not refused that claim on the basis of the argument the union is putting forward. There are two issues, one is (a), the big one, prohibited, and secondly, the union is asking the company, we've never resiled from this either, the union is asking the company to negotiate away its rights under the Act. We don't expect them to do it and we put that position. But quite clearly the major argument is about the prohibited nature of the agreement.
PN345
When we talk about the clause we say in summary that we consider the clause as it currently stands. Now, there is some conjecture whether it ends after the word "agreement" or it ends, "or as mutually agreed by the parties", but we take on face value and Mr Murphy's statement where he says that the clause they're looking for is the clause that ends after the words, "by a new agreement". We say that it is clearly concerned with and has to do with the replacement of this agreement or the agreement that's currently being negotiated by a new agreement that presupposes that's going to happen as is consistent with what the union seems to be pursuing under 347(5), or at least it's consistent with that part of the Act.
PN346
It's not relevant that it does not oblige the company to renegotiate, that's not relevant because the regulations don't say about obligations to renegotiate, they just say matters that deal with. It is sufficient in our view that it deals with the replacement of the agreement with a new agreement. The process of replacing an agreement presupposes negotiations for the new agreement, that is, renegotiation of the agreement. The continuation of the current agreement until replaced by a new agreement is a substantive way of ensuring that the renegotiation takes place. What you do, as I said in my previous submissions, is you have like an insurance policy.
PN347
We also make the comment that we are sure that the AMWU would understand what the provisions of the Workplace Relations are particularly in respect of section 393 and we're at a loss to understand why they're pursuing a termination provision, as they call it, knowing full well the effect of it. We say that the issues that they're really pursuing is one that endeavours to shore up their position about replacing the current negotiated agreement with a new agreement. In conclusion we say that the company, just on another point, has since the previous proceedings started continued to negotiate with the AMWU. Some progress has been made. That progress was made because some of the matters that were dealt with in the previous proceedings were regarded by yourself and accepted by the AMWU either during or after the decision came down as being prohibited content.
PN348
Much time in those meetings that have been discussed, much time of the negotiation - or much of the time, I correct myself, much of the time has been spent since the date of 14 August discussing clauses and negotiating clauses that substitute or replace those clauses that were previously regarded as prohibited content and because of that and because of the existence and the unresolved matter of the clause in question the parties cannot have been to date - the union cannot to date say that it's been genuinely trying to reach agreement. If the Commission pleases.
PN349
THE SENIOR DEPUTY PRESIDENT: Just before you sit down, Mr Franklin.
PN350
MR FRANKLIN: Yes, your Honour.
PN351
THE SENIOR DEPUTY PRESIDENT: You've probably already covered this, but in your questioning to Mr Murphy you put the proposition, well, why not have an agreement that says this agreement won't be terminated. Such a clause wouldn't be prohibited content, would it?
PN352
MR FRANKLIN: No. It would be irrelevant. It wouldn't have any effect.
PN353
THE SENIOR DEPUTY PRESIDENT: Yes. But it wouldn't be prohibited content.
PN354
MR FRANKLIN: No, it wouldn't.
PN355
THE SENIOR DEPUTY PRESIDENT: So the addition of the clause - - -
PN356
MR FRANKLIN: Well, in my opinion it wouldn't be, your Honour, I should say.
PN357
THE SENIOR DEPUTY PRESIDENT: Sorry, say again.
PN358
MR FRANKLIN: I should say in my opinion it wouldn't be prohibited. Maybe I shouldn't speak on behalf of the Office of the Employment Advocate, but I can't see any reason why it would be. That's probably the best way to answer that question.
PN359
THE SENIOR DEPUTY PRESIDENT: Yes. And so your submission is that it's the effect of the additional clause which changes the characterisation?
PN360
MR FRANKLIN: Yes, exactly.
PN361
THE SENIOR DEPUTY PRESIDENT: Yes. And why does it do that?
PN362
MR FRANKLIN: Because if you look at the Act, I say if you look at the Act, the Act says there are only two ways of terminating an agreement and one is by approval and one is by unilateral application. No agreement is terminated by the conclusion of a successor agreement. What happens is, it ceases to operate and 347(5) says a collective agreement ceases to be in operation in relation to an employee if it has past its nominal expiry and has been replaced by another collective agreement in relation to that employee. So by putting the words in, "except when replaced by a new agreement" actually falls under 347(5), which means it is about renegotiation, directly or indirectly, depending on your point of view, about negotiation of a new workplace agreement.
PN363
THE SENIOR DEPUTY PRESIDENT: Anything further?
PN364
MR FRANKLIN: No, your Honour.
PN365
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN366
MR FRANKLIN: If the Commission pleases, thank you.
PN367
THE SENIOR DEPUTY PRESIDENT: Mr Neilson.
PN368
MR NEILSON: Just two short submissions, your Honour. Section 392 provides that there may be clauses in agreements that provide for their termination and 392 provides that -
PN369
This section applies if a workplace agreement provides for a manner of terminating the agreement after its nominal expiry date.
PN370
THE SENIOR DEPUTY PRESIDENT: Hang on, let me just catch up with you, 392.
PN371
MR NEILSON: Yes, subsection (1).
PN372
THE SENIOR DEPUTY PRESIDENT: Yes.
PN373
MR NEILSON: So we say that clearly a termination clause is something that is contemplated by the Act as being something that may be included in agreements. In relation to my friend's submissions on the - - -
PN374
THE SENIOR DEPUTY PRESIDENT: I don't think that's in doubt, is it?
PN375
MR NEILSON: I sort of got the impression that my friend was saying that we couldn't necessarily have one. In relation to section 347(5), there's some speculation as to whether, and I'll be corrected if I'm wrong, that the union's proposed clause means that a new collective agreement must in fact be negotiated. We say that the words agreement as defined by the Act clearly contemplate Australian workplace agreements or the like and it does not necessarily mean that there must in fact be a collective agreement negotiated in relation to the employee. So the submissions on 347 we don't necessarily agree as having any relevance necessarily to these proceedings, but we stand by our earlier submissions, your Honour, that the clause is in fact not prohibited as it does not impose a mandatory requirement for there to be any renegotiation over any form of agreement, whether that be collective or AWA.
PN376
Your Honour, can I just, sorry, before I sit down make one final submission. There was some reference made in your decision earlier as to matters coming close to the boundary, I think as you might ..... and there being some dangers in that approach being adopted by respective parties.
PN377
THE SENIOR DEPUTY PRESIDENT: Yes.
PN378
MR NEILSON: In our view a matter is either prohibited or it is not, either it falls within the boundary or it doesn't. It doesn't
matter if it comes close to the boundary or if it's on the line, or if it's just over the line. If it's just over the line then
it's out. If it's just inside the line then it's in. So we don't necessarily
think - - -
PN379
THE SENIOR DEPUTY PRESIDENT: I think that was the point I was wanting to highlight.
PN380
MR NEILSON: Yes.
PN381
THE SENIOR DEPUTY PRESIDENT: That exactly as you say is correct, you're one side or the other and the risk is that you might fall in advertently across.
PN382
MR NEILSON: Yes. So your Honour, those are our submissions and we say that the order should be made in the terms sought.
PN383
THE SENIOR DEPUTY PRESIDENT: Yes. Gentlemen, thank you very much for dealing with this matter effectively and succinctly this morning. I do have another matter listed for now and so I think I'm bound to reserve a decision on this but I'm mindful of the requirements of the Act on the speed with which these matters have to be dealt with. The Commission will adjourn.
<ADJOURNED INDEFINITELY [9.14AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 SUBMISSIONS PN19
STEVE MURPHY, AFFIRMED PN23
EXAMINATION-IN-CHIEF BY MR NEILSON PN23
EXHIBIT #A2 STATEMENT OF STEVE MURPHY PN30
CROSS-EXAMINATION BY MR FRANKLIN PN48
RE-EXAMINATION BY MR NEILSON PN133
THE WITNESS WITHDREW PN150
DAVID WILSON, SWORN PN152
EXAMINATION-IN-CHIEF BY MR FRANKLIN PN152
EXHIBIT #R1 STATEMENT PN177
CROSS-EXAMINATION BY MR NEILSON PN178
THE WITNESS WITHDREW PN246
EXHIBIT #R2 AWARD TERMS WHICH ARE INCORPORATED IN AGREEMENT PN249
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