BP2006/3534, Transcript of Proceedings [2006] AIRCTrans 1173 (26 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15912-1

VICE PRESIDENT LAWLER

BP2006/3534

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
ULAN COAL MINES LIMITED
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3534)

SYDNEY

10.19AM, THURSDAY, 12 OCTOBER 2006

Continued from 11/10/2006

PN1

THE VICE PRESIDENT: My apologies for the late start. Mr Bukarica?

PN2

MR BUKARICA: Your Honour, before my friend commences his examination-in-chief of Mr Wood, there is a minor housekeeping matter which would probably be appropriate to attend to now. I believe your Honour may have marked the unsworn affidavit of Mr Hodder as EX1, it that’s the case I would like to substitute the proper version. I don’t think my friend objects to that.

PN3

MR LLOYD: No objection.

PN4

THE VICE PRESIDENT: Thank you. Substitute the sworn copy of affidavit of Errol Hodder. Yes Mr Lloyd.

PN5

MR LLOYD: Your Honour, I think we left off yesterday where we would call Mr Wood to give evidence, so I’ll do that. But I understand that the union is proposing to call Mr Small to give evidence or may wish to call Mr Small to give evidence. I understand he is in the courtroom.

PN6

THE VICE PRESIDENT: I don’t have a strong view as to the order in which it ought to occur. I mean it could be viewed as evidence in reply.

PN7

MR LLOYD: I’m content to bring Mr Wood and Mr Small if he’s called and can do that in reply, I’d be concerned about his presence in the courtroom while Mr Wood is giving the evidence, given the contentious matter yesterday was what is said at meetings.

PN8

THE VICE PRESIDENT: Yes. Mr Small give his evidence first then Mr Wood is not here.

PN9

MR LLOYD: I think that the same situation would apply.

PN10

THE VICE PRESIDENT: Whilst I think there’s a power in the Commission to direct that a witness not remain in the hearing while there’s the giving of evidence, the view that I ordinarily take is that that’s whenever there are actually parties and the individual remains in the hearing and that can have an impact on the weight to be attached their evidence in due course. Mr Bukarica do you have a view of Mr Small being outside?

PN11

MR BUKARICA: I don’t have any strong views about it your Honour. I’m quite prepared for Mr Small to vacate the hearing room. There is another issue though. My friend this morning informs me that there might be indeed a second, a further witness called by the company. I have no knowledge of what that witness has to say or whether indeed we will need an additional corroborative - - -

PN12

THE VICE PRESIDENT: Let’s deal with that if and when it arises.

PN13

MR BUKARICA: Well perhaps if his intentions are for that person to give evidence then the same rules apply.

PN14

THE VICE PRESIDENT: Okay then we will proceed on the basis that the witnesses remain outside whilst others give their evidence. It makes it very boring for them I can tell you. Mr Lloyd are you going to call another witness?

PN15

MR BUKARICA: Your Honour that’s the issue that I need to ascertain and my friend’s being not clear about it.

PN16

MR LLOYD: We’ve bought one other gentleman to court, Mr Reynolds. Mr Reynolds has also attended the negotiation meetings he is outside the courtroom.

PN17

THE VICE PRESIDENT: And you may call him?

PN18

MR LLOYD: I may call him. He is outside the courtroom deliberately.

PN19

MR BUKARICA: In that case your Honour I reserve our rights to call either Mr Stanford or Mr Carberry as sufficient corroborative witnesses in which case they ought to vacate the courtroom as well.

PN20

THE VICE PRESIDENT: Sorry gentleman.

<MURRAY ALAN WOOD, SWORN [10.24AM]
<EXAMINATION-IN-CHIEF BY MR LLOYD

PN21

MR LLOYD: Sir, your name is Murray Wood?---That’s correct.

PN22

You are the operations manager for the Ulan Coal Mines Limited, Ulan underground coal mine?---Yes.

PN23

That’s located at Ulan which is near Mudgee?---Yes.

PN24

Do you have a copy of a witness statement prepared for these proceedings?---I do.

PN25

Your Honour I think we provided a copy for you yesterday.

PN26

THE VICE PRESIDENT: Yes.

PN27

MR LLOYD: Mr Wood in relation to paragraph 6 and the reference to the date 22 September 2006, is there a change to that date?---Yes it should be
29 September.

PN28

We would seek to make that amendment.

PN29

Sir, other than that change are the contents of the statement true and correct to the best of your knowledge?---Yes, they are.

PN30

I tender the statement your Honour.

PN31

THE VICE PRESIDENT: Any objection Mr Bukarica? In regard to the way in which the matter has developed, I have some discomfort about the form of paragraph 7, there’s a certain conclusion at the end of the day that doesn’t carry in that form as much weight as it would carry as say the actual content of the conversations. Now you can leave that or Mr Bukarica can cross-examine it. But I just should flag that I’ve, whilst I will make the statement of Mr Wood as exhibit A, and the response can display the issues.

PN32

MR LLOYD: Your Honour I will deal with that matter in examination of Mr Wood. You can change paragraph 7, as you - - -

EXHIBIT #A STATEMENT OF MURRAY WOOD

PN33

MR LLOYD: Mr Wood do you have a copy of a bundle of minutes of the enterprise agreement negotiations?---Yes, I do.

**** MURRAY ALAN WOOD XN MR LLOYD
PN34

Have you had an opportunity to peruse that bundle of documents prior to coming to give evidence today?---Yes, I have.

PN35

You got that bundle with you?---Yes, I do.

PN36

Does that represent a full set of the minutes as far as you know?---As far as I know these are the full set of the minutes.

PN37

Can we tender a copy of those your Honour? A copy has been provided to my friend.

PN38

THE VICE PRESIDENT: Yes, any objection.

PN39

MR BUKARICA: No objection.

EXHIBIT #B BOOK OF MINUTES

PN40

MR LLOYD: Mr Wood in your statement annexure A in paragraph 7 are four dot points of four particular items, or matters you say are being sought by the CFMEU. Can I ask, have you perused the minutes to identify those particular matters that you’ve referred to in paragraph 7?---Yes I have.

PN41

Can I ask you to take the Commission to the relevant pages in the minutes and can I ask you to recall what you can in relation to what has been raised at the meetings as recorded in the minutes, by reference to those particular matters. Perhaps for the record, can I note that the bundle is paginated in the bottom right-hand corner?---The negotiation meetings commenced on 29 March. The first meeting minutes that refer to one of the matters of paragraph 7 of my statement is on page 10 relating to the date of 4 April. On that page it’s recorded as number 8 payroll deductions and it was the notation of more information will be obtained at the meeting next Monday there was a request at that meeting for payroll deductions for union dues to be considered.

PN42

THE VICE PRESIDENT: Who made the request?---Wayne Small to the best of my recollection.

PN43

To the best of your recollection what did he say?---He asked if payroll deductions were able to be continued to be permitted under the Workplace agreement or would they stand as a separate issue. That’s not word for word, but the intent of the conversation, or the content of the conversation as best as I can recall. The minutes do not record everything that’s said at the meetings and I will say that on a number of occasions, Mr Small qualified his comments that these were not for the record, and that’s why they don’t include the minutes. But the ones that are minuted are ones that I recalled weren’t qualified by that. There was also very early on in the negotiations a intent by both parties to qualify prohibitive content and seek advice on what could be included and not included. As you will see as we go through the minutes that those – that advice was received, although not recorded word for word in the minutes and requests for the matters I’ve listed still continue. So I - - -

**** MURRAY ALAN WOOD XN MR LLOYD
PN44

That’s an answer to what did he say? So to the best of your recollection he said he asked if payroll deductions could continue to be included or permitted under the Workplace agreement?---Yes, payroll deductions for union dues, yes. Shall I move on?

PN45

Yes, thank you?---Continue on 4 April there are the minutes which are recorded and also nominate the next meeting but attached to those minutes were negotiation notes which I took myself. They combine two – a table of two columns. On page 12 the issue of payroll deductions came up, the left-hand column being the company comments and the right-hand comment being the union comments. To the best of my recollection the words that I’ve typed in on the computer are, reflected conversation and told what problems the company to deduct the dues, there was discussion on the agreement outside of the Workplace agreement. The company response was consistent with some advice I’d received will not be able to do it and the reference to no cheques, was that some employees were paid by cheque and that was not relevant to the payroll deductions.

PN46

The reference to any problem with the other?---Any problems with the other?

PN47

I take it that’s a reference to whether there’s any problems with the agreement outside the agreement?---Yes, with the other agreement, yes. On 20 April on page 20 there is also a note taken by myself during the meeting of 20 April and the union’s comments they did say they can ask for things under a common law deed. That was the comment that was at the bottom of that second column. That was stated by Wayne Small again. That was after having received some discussion, to the best of my recollection there was a date during that period, that they had attended the district office for some familiarization or education on the matters that are prohibited in the Workplace Relations Act. Then following that on page 22 on 11 May there’s a comment under the CFMEU common law deeds, are we allowed to enter into those? Again there was a discussion on common law deeds on that day and it was a round about this time that the matters at United were occurring and the CFMEU, they are not recorded in the minutes raised the matter of United being able to have a common law deed outside the agreement. I was not aware of that, but said the company was opposed to common law deeds. Whilst it may not be absolutely technically correct my statement that it isn’t legal to have an outside agreement, it was meant in the context that we are opposed to it. On
8 June, on page 41 the contents of the minutes - - -

PN48

Was this revisited?---Sorry?

**** MURRAY ALAN WOOD XN MR LLOYD
PN49

Having a debrief was it accepted when you said we are not having one, well there isn’t going to be one, the negotiations being that you spoke to them, what was going to be in the Workplace agreement?---No, there was continuing conversations on having those matters that are currently in the current agreement whether they could be included outside of the Workplace agreement as you will see as we go on. On 8 June on page 41, there’s a reference to clause 47 which is a clause 27 – I think about current agreement, lodge officers delegates and the CFMEU response was that we will look into the inclusion of this clause. Then there’s a notation – and that was basically around them seeking some advice on the matter. Clause 29 was communication meetings and the CFMEU comments there were, well you won’t pay us to have union meetings outside of work hours, it was a discussion on the payment of union meetings and or prepared to allow us to conduct our meetings as we do now, which are in work time without loss of pay. The response was that I gave was noted in the paragraph below and it was basically that we won’t pay for employees to attend the meetings at this time. There will be communication meetings that are generally held ensuring communication with the workforce continues to occur and then I said that the CFMEU will not be given time at these meetings to take the floor for union business. Again, the comment after that response was we just want to know if you will pay us to have us meetings outside of work hours.

PN50

MR LLOYD: Sir, can I just stop you there. You’ve given evidence starting in relation to the heading clause 27 lodge office delegates and you indicated you thought that might be a reference to the current certified agreement?---Yes.

PN51

Can I provide you with a copy of the current certified agreement and I ask you to identify whether or not that’s the case?---Yes.

PN52

Can I provide a copy of the certified agreement to the witness please, that’s the current Ulan Coal Mines Limited Underground Certified Agreement 2003?
---Thank you. Yes clause 27 of the 2003 certified agreement is lodge officers/delegates.

PN53

And the reference in the minutes to clause 29, communications meetings is that a reference to the clause in the certified agreement?---Yes, it is it was at this stage we were working through clauses in the – comparison against the current agreement against proposed clauses as to what we were including the proposed agreement or negotiated agreement and these are references to the clauses that appear in the 2003 agreement.

**** MURRAY ALAN WOOD XN MR LLOYD
PN54

In relation to the minutes, are there any further references to the particular matters that you have been discussing?---Yes, on page 64 on 19 July, we had discussed quite a number of issues and there is a listing there of key issues to continue with and at the bottom there, there was a notation on union meetings on and off site, payroll deductions, right of entry. Those notations refer to the conversation within that date of 19 July saying that separate discussions outside of enterprise agreement negotiations. The separate discussion related to during the course of these couldn’t be included in the Workplace agreement, could we have discussions about including them - - -

PN55

THE VICE PRESIDENT: Sorry who said this?---It was one of the delegates present. It would have been Wayne Small made the majority of comments that I’m referring to on these matters.

PN56

Doing the best you can, what words did he use?---Basically with respect to the matters of union meetings, payroll deductions, right of entry can we talk about them as to how we manage these matters outside of the agreement and whether or not we can have them in some form of whether it was the letter or policy or other agreement. The intent with which the comments were made was around these discussions was could be included and what couldn’t be included and if they can’t be included how do we manage them.

PN57

I get the impression from a number of remarks you’ve made that the union negotiators have a consciousness that there are some things that couldn’t be included, there were uncertain views as to whether or not particular items could or couldn’t be included. But their general position was that if it can’t be included it won’t be included but we want to look and see how it might be able to be addressed in some other fashion, permissible address in some other fashion?---Yes they were – I’ll come back to your first point they were aware that some things couldn’t be included, they had an awareness there and that awareness increased early on in the negotiations. They did realise they couldn’t include in the Workplace agreement and they did want to see them - - -

PN58

And they did – their general approach was well if it can’t be included if it’s determined that it can’t be included, then it won’t be included?---In the Workplace agreement, that’s correct. Then they sought an opinion from the company as to whether we would include them early on in the common law deed, they called it a common law deed because of the United scenario or an agreement with the company outside, but they wanted it in writing because they said we need it in writing so that we know what the position is and Murray if you leave, then we’ve got some record.

**** MURRAY ALAN WOOD XN MR LLOYD
PN59

The way you expressed it a moment ago was whether or not we have – whether or not we can have them in some form, a policy a letter another agreement?---That’s right.

PN60

I should say they wanted to know whether or not they could have them?---Yes and that continued on, there is only one other note in the minutes that will be relevant as in the minutes that are contained - - -

PN61

The way those words were used it struck me as being the way that you used those words struck me as being an inquiry still an inquiry as to whether or not it is permissible to deal with it in some other fashion, the policy, letter, or another agreement?---Whether it was permissible from the company?

PN62

No permissible for the company and the union to deal with it in some other form, a policy, a letter or another agreement. Is there some reason for me being wrong about that?---No, my apology for that, that interpretation, it was the request whether the company would permit those matters to be covered in another form outside of the Workplace agreement, not whether it was permissible to do so.

PN63

What was the words that were used in that context, to the best of your recollection?---From the delegates?

PN64

Yes?---They were words to the effect of can we address this in a procedure, can we address this in an agreement, can we address this in a company policy, I should say, not just a general policy. It’s difficult to recollect the exact words. Then there’s one final comment in the 29 September minutes where - - -

PN65

Just before you move on, did you respond to this at some point and say no or yes?---To the – up until the 19 September I’d consistently said no, we won’t agree to having these matters covered outside of the – or in another form.

PN66

Yes?---The only other copy of the minutes which has a note that is relevant to the points in clause, paragraph 7 of my statement, is page 120 on 29 September there’s a little bit of chronology leading up to this but it was a response to a question on payroll deductions. We will continue to make deductions on behalf of employees as per company policies and there will be company policy on company/union representatives. The intent of that comment and there were more detailed discussions around that that aren’t recorded there, was about pertaining to leave being able to be applied for in what manner and under what conditions it would be granted, which was about not having an impact on the operation. I feel the need that I should express that chronology leading up to the statement, because a bit of understanding is required. But there’s no notations in the minutes relevant to that chronology.

**** MURRAY ALAN WOOD XN MR LLOYD
PN67

MR LLOYD: Sir, in your statement you refer to - - -

PN68

THE VICE PRESIDENT: Sorry just before you move on, just staying on 120. I understand your evidence to be that one of the union representatives asked what was going to happen with the payroll deductions and you responded we’ll continue to make deductions on behalf of employees as per the company policies and payroll deductions are not just in relation to union dues?---No.

PN69

But loan repayments and car repayments and utilities et cetera?---Yes, that’s right. Yes on 19 September if I can just talk about we had a joint meeting with the district representatives, Wayne McAndrew and Graham Osborne, at which the general manager of the Underground Xstrata was present Glen Lewis and Wayne Small asked Glen in respect of payroll deductions and I won’t – I can’t recall now whether he was specific, the union dues, but the intent was around employee dues and Glen - - -

PN70

Why do you say the intent was around if you can’t remember?---What I can recall is the wording of the statement from Wayne was payroll deductions in its entirety as it is currently deducted, which included union dues and Glen answered that we can deduct payroll – continue to deduct payroll deductions within the lawful but there are circumstances where a person can set up an account, or an organization, and employees give us permission to transfer money to the account, and we don’t know where that money goes and it’s not our business but we will continue to provide lawful deductions. That was on 19 September and on - - -

PN71

It’s not unlawful?---No it’s not unlawful.

PN72

To provide for payroll deductions, including union dues?---In the agreement, in the Workplace agreement?

PN73

No, it can’t be included in the Workplace agreement, it’s not a matter of pertaining to the employment relationship?---And I think that – that was the scope of Glen’s comments was that we will operate within the law. So not include them in the Workplace agreement if we deem it per company policy and he was saying under a company policy to continue to make payroll deductions they would be made. That was the affirmation I gave on 29 September in relation to that conversation, because I was questioned by Wayne again what’s happening with payroll deductions. Then the employee representatives comments on the 29 September minutes refers to the delegates, Wayne Small gave me on 22 September - - -

**** MURRAY ALAN WOOD XN MR LLOYD
PN74

29 September, where’s that?---There will be a company policy on company/union representatives the line below the payroll deductions line on page 120. So the lead up to that was on 22 September I was handed a provision from the union to be asked to be included in the Workplace agreement which was relating to employees representatives training, leave to attend union business and I said I would review that because they’d provided a clause which they said earlier on that they would in quite a few, some months ago. We got some advice on that which was advised that shouldn’t be included in the Workplace agreement and I gave them that response at that meeting and said the best what I will consider will be company policy and I said there will be a company policy on union company/union representatives and their business but it was around the fact what leave they could take and how it would be granted.

PN75

Do you have a copy of the clause? Do you have the clause in your hand?---Yes, it was page 82 of a negotiation guide.

PN76

You are going to tender that no doubt Mr Lloyd?

PN77

MR LLOYD: The document has been identified I can show the document to the witness and ask him to identify.

PN78

THE VICE PRESIDENT: I should say that there’s a decision being handed down at 9.30 this morning a Full Bench decision in Tyco trading as Wormald which is relevant to the issues in this case. The President, myself and Commissioner Williams and inter alia acknowledges that a person if it’s conceivable that a person can be genuinely trying to reach an agreement notwithstanding that as a matter of ultimate argument and conclusion something that’s asked for maybe prohibitive content. There is specific qualification for that, but there are some things that are so obvious that no reasonable person could imagine that they were anything other than prohibitive content, deductions of payroll, union dues, payroll and union dues, being the exemplar of that. I will get Alicia to present some copies given.

PN79

MR LLOYD: Is that the document?---That is the document.

PN80

Can you explain what happened at the meeting that led to you being given the document?---It was a two day meeting 21 and 22 September. We had discussed a range of issues as per the minutes. Wayne Small said I have something to give to you for consideration. It was basically a side conversation during the points being raised in the meeting. At some point during the meeting and I think it was when we took a break actually he handed me this and said, I’d like you to consider including this in the agreement. It was entitled, employee representatives, it was a full page. I said that’s where’s this from and he said, well we’ve come up with it. I said well it says page 82 negotiation guide. He said, I shouldn’t have left that on it. So I left that and I said well I’ll get back to you on this. When I came back through the course of the meeting the bottom of the page had been turn off and so I notated in my writing page 82 negotiation guide and I can’t remember the exact title of the book that it came from. I said look I just need to get some advice on this because it is written carefully around the rules pertaining, or the requirements pertaining to prohibitive content. After which I got that advice and it was stated that whilst - - -

**** MURRAY ALAN WOOD XN MR LLOYD
PN81

Sir, can I stop you there, you don’t have to repeat the advice?---Well I can’t repeat it word for word anyway.

PN82

THE VICE PRESIDENT: You don’t have to say it at all actually.

PN83

MR LLOYD: Can I stop you there. Sir, you’ve identified that as the document given to you by whom?---Wayne Small.

PN84

At the meeting of either 21 or 22 September?--- I believe it was 22, but it was one of those two days.

PN85

Sir can I ask did Mr Small indicate what form, that – in what form did the union desire to have that clause?---Inserted into the Workplace agreement.

PN86

Perhaps if I could show the document to Mr Bukarica?

PN87

THE VICE PRESIDENT: I take it you are tendering it.

PN88

MR LLOYD: I will tender it.

PN89

THE VICE PRESIDENT: Mr Bukarica any objection?

PN90

MR BUKARICA: No objection

EXHIBIT #C DOCUMENT SAID TO BE HANDED BY MR SMALL TO MR WOOD

PN91

MR LLOYD: Sir, just for the record in relation to the dates 19 September, 21, 22 September, and then 29 September can you identify the subject matters that were raised in those meetings relevant to the matters that are being discussed. The 19 is involving Mr Lewis?---The 19 September was a meeting at my request brought the district representatives and the - - -

PN92

THE VICE PRESIDENT: Is this something different from what the witness has been giving evidence about Mr Lloyd?

PN93

MR LLOYD: No, but we’ve jumped between the three dates. 21 and 22 being one date, being the meeting.

PN94

THE VICE PRESIDENT: Don’t the minutes identify?

**** MURRAY ALAN WOOD XN MR LLOYD
PN95

MR LLOYD: That’s really where I’m heading. The witness has given evidence the minutes don’t capture all of the matters.

PN96

THE VICE PRESIDENT: Okay, I’m sorry just go ahead.

PN97

MR LLOYD: Sir on 19th the subject matter that was raised on that day?---The subject matter relating to the matters in evidence were the request from Wayne Small to Glen Lewis on the matter of payroll deductions in their entirety.

PN98

Then on 21st and 22nd?---Then on 21st and 22nd, on 22nd we received that provision relating to employee representatives and asked for a response and the 22nd we also received the notice of the bargaining period, the initiating the bargaining period. Then on 29th was responded to in the minutes.

PN99

The subject matter discussed on 29th?---Were payroll deductions as well as the matters of union representatives attending training and paid meetings.

PN100

Sir you said a moment ago, on 22nd you had the bargaining period - - -

PN101

THE VICE PRESIDENT: Sorry, just on the paid meetings, where’s the reference to paid meetings on the 29th?---There will be a company policy on company union representatives and that was a discussion around attendance of employee representatives at meetings.

PN102

No, this is important Mr Wood, doing the best you can, not a summary of what was said, your best recollection of what was actually said. Can I just explain this to you for a minute. Lawyers have this approach which seems weird to the layperson in that the admissible form of evidence of conversations is direct speech. Imagine a tape recorder, press on the record button at the time the conversation was used, press the play button and record and you would hear what he said, quote, blah, blah, blah. I said, blah, blah, blah. We know that human recollection is such that it is difficult to remember everything exactly what was said 10 minutes ago, let alone something said two weeks ago and again something said months or years ago. But nevertheless the courts require when you get to a contested matter an attempt needs to be made with evidence in that form. This is a contested matter, so doing the best you can, can you use the words that best capture your recollection of what was said by Mr Small?---Yes, I can. To the best of my recollection Wayne Small asked me or said, what is happening with the payroll deductions as we discussed with Glen Lewis. I said, we will continue to make deductions on behalf of employees as per a company policy or policies. He –there was other discussion but I can’t recall the exact nature of the conversation then. He asked me, have you considered the provision relating to employee representatives. I said I had.

**** MURRAY ALAN WOOD XN MR LLOYD
PN103

THE VICE PRESIDENT: Yes, just one moment. Yes I had?---I said I had received advice and we would not be including it in the Workplace agreement and that the provisions relating to leave and attendance by employee representatives at relevant matters would be determined through a company policy. Then I went on to explain that - - -

PN104

The provisions relating to leave and relevant matters?---Leave to attend relevant matters would be deal with in a company policy.

PN105

Mr Small’s response was?---We’d like to see that policy when we can.

PN106

MR LLOYD: Sir, you indicated you received a notice initiation of bargaining period, you said on 22 September, is that correct?---Yes.

PN107

How did you receive that?---It was from Wayne Small handed to me and said I’ve been instructed to give you this. That’s what Wayne said.

PN108

Are you aware whether the document had been received by the company previously to the 22nd?---No, I’m not aware.

PN109

No further questions of the witness.

PN110

THE VICE PRESIDENT: Mr Wood, I was asking you some questions about page 64 and what your response was to the matters that had been raised. You gave some evidence to the effect that until the 19 September you consistently said no? Do you remember that?---Yes.

PN111

What's the significance of until 19 September? Was there some change after
19 September?---That was a conversation around - with statements by Glen Lewis regarding payroll deductions being continued within lawful - - -

PN112

I see, so the until 19 September is a way of just flagging that there was this additional position adopted in relation to payroll deductions you've given evidence about?---Yes.

PN113

The company was going to continue to provide them but it's not going to be part of an agreement, is the effect of what you've said, I think?---That's correct.

PN114

Yes, Mr Bukarica.

**** MURRAY ALAN WOOD XN MR LLOYD
PN115

MR BUKARICA: If the Commission pleases.

<CROSS-EXAMINATION BY MR BUKARICA [11.01AM]

PN116

MR BUKARICA: Mr Wood, the negotiations for a replacement workplace agreement for the 2003 Ulan Agreement commenced on 29 March. Is that correct?---That's correct.

PN117

That was what, two days after the introduction of the new Workplace Relations Act or the changes. Is that your understanding?---I believe that's correct.

PN118

Around about that time?---Yes. It was more - yes.

PN119

Am I right in understanding that at about that time there was a lot of interest from both the company and the union side as to the implications of those legal changes?
---That's correct, as well as the negotiations requiring to commence under the 2003 agreement four months before the nominal expiry date.

PN120

Which is coincidental. It was simply that it was four months prior to the nominal expiry date as we know it?---Yes.

PN121

THE VICE PRESIDENT: Sorry, what were the actual dates?

PN122

MR BUKARICA: I beg your pardon, 29 March 2006 was when the negotiations commenced. The agreement has a - if my friend allows me - the agreement has a provision which requires - it's a pre-reform agreement, the provision which applies - - -

PN123

THE VICE PRESIDENT: The prohibited content regulations were not in the public domain until 27 March.

PN124

MR BUKARICA: Yes.

PN125

MR LLOYD: No, I don't think that's correct. I think they were in the public domain approximately a week before the 27th.

PN126

THE VICE PRESIDENT: I think you're right. They had been publicly released - we were exposed to them the first time a week before.

PN127

MR LLOYD: We anticipated the 20th as a commencement date and the regulations appeared on about the 20th and then there seemed to be a further week. I recall busily spending a week on it before it started, for what it's worth.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN128

MR BUKARICA: I'm obliged to my friend.

PN129

THE VICE PRESIDENT: Mr Lloyd possibly had access to - - -

PN130

MR BUKARICA: .....

PN131

THE VICE PRESIDENT: ..... members of the Commission.

PN132

MR BUKARICA: In any case, Mr Wood, the position is that immediately or very soon after the new Act, the new regulations commenced, the first negotiation session occurred with the union. That's correct?---That's correct.

PN133

Mr Wood, is it correct that you're not legally trained, you're not a lawyer, that background?---That's correct.

PN134

Presumably you've received some instruction or training as to the implications of the legislative changes of 27 March 2006?---Instruction, yes.

PN135

Can I ask you, Mr wood, to establish this fact: the Ulan Coal Mines Limited Company is part of the Xstrata group, to use that term?---Yes. Xstrata is 90 per cent owner and manager of the Ulan operation.

PN136

You accept that categorisation as part of the Xstrata umbrella?---The Ulan Coal Mines Limited is a company in its own right. It is managed by Xstrata and Xstrata does manage other operations in New South Wales.

PN137

I see. Mr Glen Lewis has been mentioned I think on several occasions in your evidence. What's his position?---He is general manager underground for Xstrata Coal New South Wales.

PN138

Is he your superior?---Yes.

PN139

You answer to Mr Lewis ultimately?---I report directly to Mr Lewis.

PN140

This instruction or training that you received in relation to the new legislation, was that something that was organised at the Xstrata corporate level or was that something that you took on board yourself at the Ulan Coal Mines level?---I took on board myself at the Ulan Coal Mines level.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN141

You're not aware of whether the Xstrata undertook at a New South Wales wide coal mine level, if I can use that clumsy description, training or instruction of its management as to the implications of the new laws?---No formal training, but there was an information session held on Work Choices and the implications of the upcoming legislation at an operations managers' meeting.

PN142

Which you attended?---Yes.

PN143

Presumably, Mr Wood, there are company policies at that, if you like, Glen Lewis level that you're required to comply with?---Yes, there are company policies.

PN144

Including company policies relating to the application of the new industrial laws or the company response to those laws?---Not that I'm aware of.

PN145

Mr Wood, there is an Xstrata-wide policy, is there not, to not enter into common law deeds or side deeds. Is that your understanding?---There's no written policy.

PN146

THE VICE PRESIDENT: Yes, but is there a policy that's unwritten or informal?
---There's a position from - that each operation stands on its merits and if they have a requirement to consider something outside of a workplace agreement they have to present their case.

PN147

MR BUKARICA: To whom?---To whom?

PN148

Do you present the case?---Initially to Glen.

PN149

Mr Glen Lewis decides whether you can enter into a side agreement or common law deed. Is that the case?---He will agree with the position presented by the site or not agree with it, in which case he may take it to a higher authority.

PN150

You can't overrule Mr Lewis's decision, can you?---No.

PN151

If he decides there's no side deal or common law deal, that's it, isn't it?---I've always maintained a position, to my understanding for the site, that we wouldn't enter into such a side deed. Glen Lewis has never instructed me to do so.

PN152

THE VICE PRESIDENT: In any event, at all material times you were operating on the basis there will be no side deals. There will be a workplace agreement and that's it?---That's correct.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN153

MR BUKARICA: Mr Wood, that position, no side deals, no common law deals, that was a position you clearly put to union representatives from the outset?---I clearly put the position that there wouldn't be consideration of the matters that they raised elsewhere, yes.

PN154

As of 29 March that was the position you put to the union negotiators. Is that correct?---It was in April I first put that position to them.

PN155

At 4 April meeting?---Well, 4th and the 20th, yes.

PN156

You were quite unambiguous in the position, were you not?---I was consistent in my response.

PN157

And it was no?---It was no and there was a fair bit of discussion around some points and not so much discussion around others.

PN158

Did you perceive, Mr Wood, that the union negotiators misunderstood your position? Was there any ambiguity in what you were putting to them about common law deeds or side deals?---I doubt that there was ambiguity, but there was continuation of requests to consider the matters.

PN159

When were those requests, Mr Wood - I know you've already given some evidence but can you recall when such requests were made?---As stated in the minutes as well as there was a number of verbal requests and I would estimate, to the best of my recollection, that occurred in the majority of meetings, whether recorded or not and whether qualified by Wayne Small as not for the record or not.

PN160

These claims or requests would have occurred round about March, April of this year. Is that correct?---April and as recorded in the minutes.

PN161

We'll get onto talking about 19 September and 26 September, Mr Wood, but focusing on those meetings in April, May, June, that's really where issues of possible side deals or common law deals were really, if at all, raised. That's the case, isn't it?---No. We had requests in June and July and discussion on common law deeds from - Wayne Small was the main speaker at these meetings, but they were requested - the term "common law deed" and "common law agreement" or other agreement continued. The common law seemed to drop off from beyond May, I think, yes, around June, but could we have another agreement on this or an outside agreement.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN162

I see, so there was no mention of common law deeds from June on. That's your recollection?---Not to my recollection. They referred to common law deeds, as I stated previously, in view of the United proceedings. I'm not sure whether they understood what the common law deed meant.

PN163

Could I ask you, Mr Wood, to recall in any of these conversations that you say occurred with Mr Small or other lodge members in relation to so-called side deals or common law deeds containing prohibited content, was it ever put to you that the union requires those matters to be dealt with as a condition of entering into a workplace agreement?---No.

PN164

Was it ever put to you - - -

PN165

THE VICE PRESIDENT: ..... my notes.

PN166

MR BUKARICA: Beg your pardon.

PN167

Was it ever put to you that unless those matters, those prohibited content matters were dealt with satisfactorily, that the union would cease negotiating with the company over a workplace agreement?---No.

PN168

Was it ever put to you that unless the company acceded to a request to satisfactorily deal with prohibited content, that the union would undertake some form of industrial action or other pressure on the company to make it comply?
---No. The delegates have not put that position. There was some discussion at a recent crew meeting that - but I will say that the workforce's understanding of these matters is limited.

PN169

In any case, it summarised the position. The position is that no union representative at any stage said to you - correct me if I'm wrong, Mr Wood - that compliance or the company acceding to the requests of the union to deal with these prohibited content matters was an essential prerequisite to have in a workplace agreement?---No. That didn't happen.

PN170

Or anything like it, anything affirmative like that at all?---No.

PN171

That's the case, isn't it?---That's right.

PN172

In fact, Mr Wood, has the union ever presented you with a written document, draft or email or any sort of written document which purports to be a common law deed or a draft of such an instrument?---No.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN173

Has the union ever put in writing, presented to you a resolution of rank and file union members demanding that the company accede to a side deal or a common law deed?---No.

PN174

You've not received any emails or letters or other forms of communication from Mr McAndrew or any district official requiring of you that you comply with a common law deed or a side deal?---No.

PN175

You have got minutes of the meetings in front of you, Mr Wood?---Yes.

PN176

I first take you to the minutes of - - -

PN177

THE VICE PRESIDENT: Was the discussion of prohibited content, that expression, ever used in any of these meetings?---Yes. It's noted in the minutes.

PN178

Is it fair to say that the union's position was that they (a) understood that prohibited content was something that couldn't be included in a workplace agreement and they didn't want it in an agreement, in a workplace agreement?
---They recognised that it couldn't be included in a workplace agreement

PN179

And they didn't want it in a workplace agreement?---Those words were never used, but generally they realised it couldn't be in a workplace agreement and there was no - - -

PN180

They were not endeavouring to press for the inclusion of prohibited content?
---In the workplace agreement, no.

PN181

MR BUKARICA: I think you've been taken to this section already, Mr Wood, but if you look at page 22 of the bundle, which is the meeting of 11 May, or minutes of 11 May 2006?---Yes.

PN182

And you see the passage or the summary there near the bottom of the page:

PN183

CFMEU common law deeds, are we allowed to enter into those?

PN184

with a question mark?---Yes.

PN185

And UCML, which I presume stands for Ulan Coal Mines Limited?---That's correct.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN186

Saying:

PN187

No. It isn't legal to have an outside agreement.

PN188

?---That's correct.

PN189

I think your evidence earlier was that the person making - the CFMEU comment is attributed to Mr Small. Do you recall saying that?---Yes, as I recall.

PN190

The answer, ":No, it isn't legal to have an outside agreement" would be yourself?
---That's correct.

PN191

Would you agree with me, Mr Wood, that the way the minutes express this exchange in any case is that the union is asking of you a question or
Mr Small - - -?---As the minutes are written, yes.

PN192

You've answered the question?---Yes, as the minutes are written.

PN193

THE VICE PRESIDENT: You've used the qualification "As the minutes are written." Are you seeking to convey that somehow or other the minutes don't reflect accurately what was said?---No. The minutes don't record all of the conversation.

PN194

MR BUKARICA: What I was going to ask you, Mr Wood, is, the union in this exchange, in Mr Small's exchange, didn't lean over the table or - to use whatever imagery you like - and demand of you that the company enter into a common law deed, did he?---No. We haven't had any table thumping at our meetings.

PN195

In fact, there wasn't even a polite demand, you know, "You must comply with this. It's the union policy." No such comment from Mr Small?---There was no demand. As I said before they were just requests.

PN196

So this was raised as a request or a question. Is that your recollection?---Yes. If you refer to the previous page 20, there was a positive statement from the union that it can ask for things under a common law deed. Then the question was raised on the 11th of the 5th indicating that they're allowed to enter into those and as I said previously in evidence, the use of the word "legal" is probably not a correct - it was not a correct use of the word, but the question from Wayne Small was, "Are we allowed to enter into those?" referring to common law deeds, was around whether the company would enter into the common law deed arrangements.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN197

Your answer, quite affirmative, was no?---That's correct.

PN198

That was consistent with your position, wasn't it, Mr Wood?---That's correct.

PN199

If we go back to the meeting of 4 April, Mr Wood. I apologise, your Honour, I'm going between two copies. It's my marked up version in the bundle we received this morning. I'm just trying to find a page number.

PN200

Page 10. I think you've already been taken to this by Mr Lloyd?---Yes.

PN201

Again there's a reference there to union meetings, item 7?---That's correct.

PN202

I think your evidence was that it's Mr Small making these comments?---That's my recollection.

PN203

THE VICE PRESIDENT: Sorry, item 7, what page are you on?

PN204

MR BUKARICA: I'm sorry, page 10, your Honour, of the bundle.

PN205

Again, the first point or dash point is union meetings:

PN206

What are management's thoughts on this? Having meeting in and out of work hours -

PN207

et cetera. You would agree with me, Mr Wood, that poses a question or an inquiry, would you not?---Yes.

PN208

That's your recollection of the way the matter was put to you?---4 April meeting was looking at the list of issues that came out of 29 March and 4 April and at that stage the question was around what the company's position was and whether or not meetings could be held within or outside of working hours and that was a statement from the delegates - from one of the delegates and I don't now recall who that was, and they indicated there that would be more information supplied after next Monday's meeting.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN209

THE VICE PRESIDENT: Who was doing the supplying of information to you then?---Both parties. They were - at that stage had not been - had said they were going across to the district office to discuss prohibited content. They'd also asked in a subsequent meeting - I don't know where it is in the minutes, but I read it last night - that the - they requested the company supply a list of prohibited content, which we did not do.

PN210

So that it's right, correct ..... at that point at any rate there's clearly some confusion in the minds of the delegates who were negotiating as to what was prohibited content and what wasn't?---There was certainly uncertainty.

PN211

MR BUKARICA: Mr Wood, it's natural, isn't it, it's a week or 10 days after the new Act is in place?---That's correct.

PN212

Just to clarify this point, at 4 April meeting as well, there was no claim or demand put on you in relation to those prohibited item claims?---No, there was no demand.

PN213

Really, you're presented here with a question or a query from the union as to its legal entitlement or matters of that sort?---Yes. This was the initial discussion around such items.

PN214

In paragraph 6 of your statement, Mr Wood, you refer to certain prohibited content items being dealt with on the meetings of 19, 21, 22 and 29 September 2006. That's correct?---At paragraph 6?

PN215

Yes, and I think Mr Lloyd took you through some of the who said what, if you like, scenarios, but I may just refresh my own memory as to what you say occurred on those dates?---On 19 September?

PN216

Yes. Well, can I ask you first, on 19 September what is it that you say is a prohibited item? Who made the statement? We'll start with that anyway?
---Payroll deductions, Wayne Small made the statement as I said before.

PN217

THE VICE PRESIDENT: We're on 19 September at the moment?---Yes.

PN218

I'm sorry, Mr Bukarica, to interrupt, my apologies.

PN219

That's at page 64, is it? No, wrong date?---The 19th is page 112.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN220

I don't have anything - I've been tabbing the pages you took me to. I've got no tab on the meeting of the 19th.

PN221

Did you take us to - - -?---No, I did not. In the - on page 114, the last paragraph states:

PN222

At the completion of discussions Murray Wood ran a presentation that was shown to the workforce highlighting the main sticking points. This resulted in open discussion. There were no decisions or agreements made during this process.

PN223

The open discussion is where that conversation occurred on payroll deductions.

PN224

MR BUKARICA: In any case, in terms of the minutes of 19 September, there's no reference in the minutes to payroll deductions or any other prohibited content claim, is there?---No. That occurred as a verbal dialogue.

PN225

In terms of that verbal dialogue, Mr Wood, was that a claim by the union for payroll deductions? Was there an affirmative position put that there shall be payroll deduction of union dues?---The question was asked - it was a question asked by Wayne Small and to the best of my recollection it was, "What is happening with payroll deductions?" because Glen Lewis was there and had knowledge of other sites and "Can payroll deductions still continue in their entirety?" meaning - well, we took it to mean as union dues, including union dues and Glen's answer was as stated previously that we would continue to deduct payroll deductions within the limits of the law and if that was via a company policy, it was via a company policy. If it was via an organisation - or having a bank account to which individuals authorised deductions to that account and we don't need to know the purpose of the account.

PN226

Can I ask you to have a look at questions about the meeting on the 19th, and that conversation in particular, Mr Wood. Did Mr Small or any other lodge official use the term "payroll deduction of union dues"?---Not to my recollection.

PN227

There was no mention of union payroll deduction?---Not union payroll deductions but payroll deductions were mentioned and - - -

PN228

Mr Wood, correct me if I'm wrong, at your workplace - firstly, can I - I probably need - - -

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN229

THE VICE PRESIDENT: A nod is as good as a wink to a blind man, I take it,
Mr Wood?---I'm sorry?

PN230

You had a smile on your face when Mr Bukarica was asking the question. I inferred from that that you would say that a nod is as good as a wink to a blind man if it's not necessary for them to expressly refer to payroll deductions of union dues because everybody in the room knew that that's ultimately what it was directed towards?---That's correct. I was thinking that you had to be there.

PN231

MR BUKARICA: Mr Wood, are you familiar with the types of payroll deductions your employees volunteer or authorise?---A number of them, yes.

PN232

Things like Westpac rescue helicopter, is that one deduction?---Yes.

PN233

Social clubs of various descriptions?---I believe so. I'm not intimately aware of that one. I know that there's deductions to credit unions, banks, charity organisations, et cetera.

PN234

Health insurance?---Yes.

PN235

There's a number of different items that are included in the term "payroll deduction" in the context of your workplace?---There's a range of deductions including union dues.

PN236

THE VICE PRESIDENT: We treat it as though it's something intrinsically evil and it's not. It's prohibited but there's nothing intrinsically evil about payroll deductions. They're a perfectly practical and sensible administrative convenience.

PN237

MR BUKARICA: One would have thought so, your Honour.

PN238

In any case, Mr Wood, on 19 September the meeting where you say the conversation involving Wayne Small raising the issue of payroll deductions, that was attended by, amongst others, Mr Glen Lewis?---Yes.

PN239

What was the purpose of Mr Lewis's attendance at that meeting?---The negotiation meetings had been in progress for some - almost six months. Glen had indicated to me two to three weeks prior to that meeting that he would be willing to attend a negotiation session if I felt it was of any benefit. I said that it wasn't necessary at that stage when he indicated it to me, however, I would look at, when we'd provided some more material, arranging a meeting so that the district delegates could be there and Glen could explain his position on the Ulan agreement.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN240

That's the entire purpose of Mr Lewis being at the meeting?---I can't - yes. As I recall, yes.

PN241

It had nothing to do with the possibility that Mr Lewis could authorise certain matters that were beyond your authority?---No. It did not have that - I had not requested him to make a decision on anything. It was a general status meeting at which he would express his view on the - on Ulan and where the business needed to go and he would address - and he addressed other general discussion along the way.

PN242

Mr Wood, if we turn to page 120 and to a section you've already taken us to, in reference where it talks about - in regard to payroll deductions. Can you see that section?---Yes.

PN243

Who made those remarks?---Myself.

PN244

It wasn't Mr Lewis?---Mr Lewis was not present.

PN245

Were there instructions from Mr Lewis to you in relation to the payroll deduction issue prior to this meeting?---No. I took his view from the meeting of the 19th and affirmed that with those statements.

PN246

Immediately preceding you making that comment in relation to payroll deductions, did the union ask you about payroll deductions or make any comment in relation to it?---Yes.

PN247

During that meeting?---During that meeting they did. That response in regards to payroll deductions was in response to a question from, I believe it was Wayne Small again, just confirming the - previously I had said no to payroll deduction of union dues. Glen Lewis's answer had indicated some flexibility, I believe, and Wayne had asked me, "Well, payroll deductions, as per a previous meeting, you are continuing?" and I said, "In accordance with company policy" that supported Glen's statement.

PN248

The statement by Mr Lewis was made in the context of the meeting of
19 September?---That's correct.

PN249

Correct me if I'm wrong, Mr Wood, Mr Lewis's response to the inquiry by Mr Small was to the effect that Ulan would consider a policy or a policy on payroll deductions generally and it would do what it thought right, provided it was legal. Is that the import of what Mr Lewis said?---Glen didn't use the word "Ulan". He spoke from a general nature that payroll deductions are possible and then he used the example of an organisation having a bank account.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN250

Is it your impression, Mr Wood, that Ulan is the only site within the Xstrata group where the issue of payroll deductions has been an issue?---I can't comment. I'm not aware of any others negotiation - I know other negotiations are continuing but I don't speak to the people about detail.

PN251

What interested me, Mr Wood, was - - -

PN252

THE VICE PRESIDENT: Can I just interrupt, Mr Bukarica.

PN253

Mr Wood, my impression of the evidence you've given about page 120 on these discussions is that the - and the other evidence you've given about these relevant conversations by Mr Lewis and Mr Small about payroll deductions, that there wasn't at any time any claim or demand by the union in the form of Mr Small or the other delegates for payroll deductions, but rather there was an inquiry directed towards eliciting a company response that there would be some policy or other in relation to that?---There had been discussions throughout the negotiations previously on payroll deductions of union dues to which I had said no. The inquiries made later on on 19 September and then again on page 120 of the 29th related to payroll deductions generally and the indication from Glen at the meeting of the 19th that there was some flexibility within the company, albeit not in the workplace agreement.

PN254

Again, I don't want to misinterpret your evidence, which is why I'm putting it to you, to give you an opportunity to comment, again the impression I'm getting is that while there have been some discussions much earlier in the year about payroll deductions, by the time you've got to the 19th - more specifically by the time you've got to the 29th on page 120, there was no question of the union demanding or claiming that payroll deductions be included in the workplace agreement?
---That's correct.

PN255

There was no question of the union claiming or demanding that the payroll deductions be incorporated into some sort of agreement outside of the workplace agreement, some side agreement agreed?---There was pursuit of matters outside the agreement and they were still asking for the company to consider them. That's - whether or not it was an inquiry, there was a - - -

PN256

There's a pursuit of matters, but just specifically focus on whether there was a claim or demand for the inclusion of payroll deductions into some side agreement. The impression I got from the evidence is that whilst there was an issue that was still alive, as demonstrated by the entry at page 120, it was not something in respect of which there had been a claim or demand that payroll deductions be addressed in a side agreement?---Not as direct as that. No.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN257

In that way at all?---Well, it continued pursuit of payroll deductions even after the specific matter of union dues had been made and Mr Bukarica has refreshed my memory on one of the comments about Westpac helicopter and so forth of those deductions. They were securing that they would still happen with union dues. We'd said no in the workplace agreement and had been asked whether we would continue them and that question kept raising its head until 19 September.

PN258

Did they, Mr Small or any of the other delegates ever say anything which expressly or directly, viably linked payroll deductions to an external agreement, a side agreement?---Not directly.

PN259

Indirectly?---Indirectly, I believe they were seeking - indirectly I believe the comments - - -

PN260

No, I'm not interested in your beliefs, I'm interested in what they said which may allow that conclusion that it was indirectly linked?---Their statements were about getting some form of finality from the company on the matter of payroll deductions in their entirety and we were - sorry, I affirmed Glen's statements on the 29th. Now, I'll say that I had - - -

PN261

Okay, I understand that?---It was my understanding from those comments that they were still seeking an arrangement with respect to payroll deductions. That was my understanding.

PN262

An understanding based on the comments that you'd given in answer to that?
---Yes.

PN263

Sorry, Mr Bukarica.

PN264

MR BUKARICA: Mr Wood, I think I was going to ask you a question about Mr Lewis's role in the payroll deduction question and I'm curious as to why there would need to be an Xstrata level response as opposed to a Ulan Coal Mines response to the payroll deduction issue. I was wondering if you could expand on that?---Glen was present at a meeting and when the - generally as happens when there's a higher authority in the room a question that may not have been resolved to the satisfaction of the delegates was directed to Glen and he made an answer and that's the only obligation that Glen felt to answer, that a question was directed to him.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN265

And in Mr Lewis' answer he made reference to a Xstrata wide policy and payroll deductions, did he not?---No. He said generally - in a general nature payroll deductions can continue and gave the example of being lawful, being within company policy and policies vary from site to site on what - how deductions are managed.

PN266

Can I just say I must have misinterpreted your earlier answer because I took company policy in that context to mean Xstrata rather than Ulan Coal Mines?
---You asked me if Xstrata has company policies. I said yes. When Glen attends a site it is generally - the comments he makes are specific to that site. If there is a company policy Xstrata wide on payroll deductions I'm not aware of it. I don't believe it exists.

PN267

Mr Wood, amongst - within Mr Lewis' jurisdiction - correct me if I'm wrong - are United Collieries?---Yes.

PN268

Near Singleton. Work with Wallsend?---West Wallsend.

PN269

West Wallsend, I beg your pardon. Beltana?---Beltana.

PN270

Barlbone?---Yes.

PN271

Amongst others?---And Ulan. There are five undergrounds.

PN272

If I put to you, Mr Wood, and you can correct me if you find I'm putting it wrongly, it's quite possible that Mr Lewis was responding at least in part to general issues of payroll deductions applicable to a number of mine sites within his jurisdiction in that answer?---You would have to ask Glen. It was a meeting specifically on the Ulan negotiation status of.

PN273

Does Mr Lewis discuss with you the progress of enterprise agreement negotiations at other sites in his jurisdiction?---Only where I specifically request. We generally don't share that information unless it's generally requested - unless it's specifically requested.

PN274

Did you discuss payroll deduction in relation to other Xstrata sites?---No. I didn't believe it was a significant issue.

PN275

Not at the 19th or any time before or after?---With respect to other Xstrata operations, no, I wouldn't - - -

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN276

Did you ask Mr Lewis whether this came up at United or Beltana or anywhere else?---No, I didn't. No, definitely.

PN277

Now, Mr Wood, can I also take you to the meeting of 27 September?---Page 118?

PN278

No, I beg your pardon, I've got the wrong reference. Sorry, it is 19 September, which is 112 of your document?---Yes.

PN279

Now, again you've given some evidence about this moving, but can I refer you again to the statement by Mr Wayne Small, which is the second last paragraph on that page? Do you see the remarks attributed to him?---Yes, yes.

PN280

You see on the last sentence, there's the quotation, "The issues of contractors is gone but we still need to finalise a public holiday issue"?---Yes.

PN281

THE VICE PRESIDENT: Sorry, which page are you on?

PN282

MR BUKARICA: It's 112, your Honour. It's the summary of statements made by Mr Wayne Small and I'm referring Mr Wood to the last sentence.

PN283

Can you recall what you understood Mr Small to be referring to in the last sentence of this document?---It was in relation to two disputes that have been ongoing at the mine since mid last year that - - -

PN284

About the use of contractors?---Use of contractors and that has - that dispute has not been pursued by the union. The public holiday dispute is listed for Chief Industrial Magistrates' Court in December.

PN285

Yes. Mr Wood, it's the case, is it not, that - and you've got a copy of your current pre reform certified agreement before you, have you not?---Yes.

PN286

Just in case we need to refer to it, Mr Wood, but correct me if I'm wrong, but within that agreement - - -

PN287

THE VICE PRESIDENT: Is there a copy on the bar table?

PN288

MR BUKARICA: I don't have a copy, your Honour. There's only the one.

PN289

MR LLOYD: I've given my copy to the witness.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN290

THE VICE PRESIDENT: That's fine, Mr Lloyd, don't worry about it.

PN291

MR BUKARICA: I think the issue won't be controversial, your Honour. I just wanted to establish a particular fact?---I do have a copy in the room myself if - - -

PN292

MR LLOYD: No, that's fine, your Honour.

PN293

MR BUKARICA: Now, Mr Wood, is it correct to say that within that agreement there is a comprehensive contractor's clause, is there not?---Yes.

PN294

The contractor's clause regulates the rates of pay and conditions of employment of contractors on the Ulan Coal Mine, underground colliery?---Where those contractors don't have their own certified agreement.

PN295

I think in common industrial parlance it's referred to as a jump up clause, is that what you understand it to be, that is that the contractors jump up to the site rate, under the agreement they don't have a - - - ?---Yes, they have to abide by the certified agreement on site, yes.

PN296

Yes, and the dispute to which you refer about contractors dealt with the application of that clause, that particular clause?---Yes.

PN297

With the union contending that the company some way was in breach of that particular clause, is that right?---The company placed the union in dispute over that clause, yes.

PN298

Now, isn't it the case, Mr Wood, that where Mr Small says the issue of contractors is gone, he is accepting that that clause, that existing clause under your pre reform agreement would be prohibited content under the new Act and therefore the union have abandoned any such clause?---The issue of contractors has not been pursued. There have been many comments during the negotiation by Wayne Small regarding the contract clause that it's gone, that the government made it easy for us et cetera and so forth and that there may - - -

PN299

Easy for the company, do you mean?---Easier for the company.

PN300

Yes?---And that there the union's main bargaining chip had gone. So there has never been a question over the inclusion of that clause in the workplace agreement being negotiated.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN301

Yes. Nor has there been a claim for a common law deed or a side agreement covering contractors?---No.

PN302

And this comment by Mr Small was as late as mid September, contractors is gone, not pursuing?---It came up regularly.

PN303

Now, Mr Wood, that's not consistent with an approach where the union is seeking a general common law agreement covering all those matters which are prohibited content, is it, that comment by Mr Small?---That relates to one particular issue of contractors. The other matters I've listed were still being pursued and are still currently being pursued by the very nature of the questions that the delegates have asked.

PN304

So that the question such as what is the company's policy regarding payroll deductions?---Yes. The consistency of my answers on outside agreements or common law deed agreements has been, if I use the expression, has watered the position of the union down to asking and considering whether we'd have it in a company policy and then wanting to see that company policy when it's developed or if it exists.

PN305

THE VICE PRESIDENT: That's a summary, a conclusion form summary of things that have been said. What words were used by him on what occasion to that effect, words that the conversation you've already given evidence about?
---Yes. I was going to say it's a conversation I've given evidence about.

PN306

All right, thank you. Yes?

PN307

MR BUKARICA: So Mr Wood, what you're putting to us really is that the company's been quite firm all along, no side deals, no common law deals. The best that the union has been able to do is cap in hand ask whether some accommodation might be possible. Is that what you're saying?---That's a
fairly - I'd say light - well, without having been present at the negotiations, then you could have that opinion, but the nature and frequency of the requests still come up.

PN308

Yes. Now, there's no doubt in your mind, is there, Mr Wood, that if - - -

PN309

THE VICE PRESIDENT: So is Mr Bukarica right or wrong when he put that to you?---It's a perception from someone who hasn't been at the negotiations.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN310

And if you had been at the negotiations?---I believe that the questions from Wayne Small, and mainly Wayne Small, regarding payroll deductions and union employee representatives still reflected a desire to have a position from the company on those matters and the position being initially requested a common law agreement or deed, and then responses from the company have since caused those questions to be more general in nature regarding policy and then still wanting to be involved in that policy.

PN311

MR BUKARICA: I see. So by the end of this process, if you like, 19 or
26 September, thereabouts, the union's strongest claim, if you like, or request is to be part of the policy where the company develops some of these issues, is that your evidence, Mr Wood?---From 19 September on?

PN312

Yes?---In respect of payroll deductions, the response from myself on the 29th, I believe you're referring to, that's correct, is a policy. The response on employee representatives and leave to attend training and union matters was actually more concrete on the provision that was given to me and then I responded saying it wouldn't be in the workplace agreement. It would be a company policy and they said, well, we'll want to see that. So whether it's a policy and they'll state that it's satisfactory or not, that hasn't been developed at this time.

PN313

Let's focus on September now, Mr Wood. During any of the September meetings, firstly in relation to payroll deductions, and if I'm repeating this question, please bear with me, payroll deductions issue is no demand, no claim by the union in relation to that matter? Do you understand what I mean by claim?---Yes.

PN314

Is that correct?---That's correct.

PN315

Inquiry as to what the company's policy may be, is that correct?---I'd call it continued mention, yes.

PN316

Mention, I see. Okay. So that's, payroll deduction is no claims throughout September. Union leave, training leave, delegate's leave, let's just bundle that up, no claim by the union in respect of those matters during September?---21st,
22nd - yes, I think it was 22 September was when I got that provision handed to me.

PN317

I see. And was that put to you on the basis of you must comply with this
or - - - ?---It was, can we include this in the workplace agreement.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN318

Can we, I see, and that's the clause that's marked exhibit C, is that correct?
---That's correct.

PN319

Now, in relation to exhibit C, Mr Wood, there are of course issues and I'll try to frame this question in a way which doesn't impinge on your rights or in terms of solicitor/client privilege, but can I ask whether the advice that you've received in relation to this clause was that it constituted prohibited content?

PN320

MR LLOYD: I object to the question. It's requesting the witness answer the content of his legal advice.

PN321

MR BUKARICA: If the Commission pleases, it may just be an issue if there's some reliance upon this matter. It's perhaps an issue that goes to further discussion but - - -

PN322

THE VICE PRESIDENT: We can draw inference as to what the advice was.

PN323

MR BUKARICA: Yes.

PN324

THE VICE PRESIDENT: I mean, it's prohibited content.

PN325

MR BUKARICA: If the Commission pleases.

PN326

THE VICE PRESIDENT: No doubt it came from an old negotiation.

PN327

MR BUKARICA: Well, your Honour, with respect, I'm not quite sure whether it does transgress the line, but that may be an issue for submissions, if the Commission pleases.

PN328

Now - - -

PN329

THE VICE PRESIDENT: No, sorry, I've just had a glance at it and I can see what the argument is about, yes.

PN330

MR BUKARICA: Yes. Although I haven't looked at it, your Honour, the decision your Honour referred to this morning, I think, might have been that type of category of best endeavours and good faith in terms of an understanding of the rather tricky area of prohibited content, but again that's maybe an issue for submissions.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN331

Now, I think I was dealing with union leave et cetera. You said that exhibit C was handed to you on 22 September and it was on the basis of well, will you consider this. Is that the effect of the representation?---Yes. The - can you consider this to be included in the agreement and I've - yes.

PN332

Yes. And subsequently the answer was no?---That's right.

PN333

And did the union, subsequent to that answer, pursue exhibit C with you again?
---No. After my response that we would deal with certain matters in the company policy, they only said that they would want to see the policy.

PN334

When was that, that was 29 September or 27?---29th.

PN335

September?---Mm.

PN336

And can I ask, Mr Wood, subsequent to the 29th no further mention or claim of that sort, that is relating to union leave - - - ?---Not that I can recall.

PN337

Now, your evidence earlier, Mr Wood, was that Mr Murray Small handed you a copy of the union's bargaining period notice on 22 September, that's correct?
---Yes, Wayne Small, yes.

PN338

Sorry, I beg your pardon, did I say - - - ?---Murray.

PN339

Murray Small, I beg your pardon. So 27 September you received the union bargaining period notice. Subsequent to that bargaining period notice being handed to you, was there any other form of written claim provided to you by the union as to what it sought in a certified agreement - a collective workplace agreement?---There was a working draft that the union had of - and it was a modified draft of the current enterprise agreement that they were working on responses or not responses, provisions that they would like to see included. That was supplied - I couldn't be confident of the dates but some time ago, as in April, May, possibly even June. Then their only responses after that were to take drafts of the proposed document and work on them, which they were afforded time to do. So that's the only documents received.

PN340

But certainly subsequent to 22 September, other than perhaps the documents which initiated these proceedings, no written documents were served on the company in relation to the enterprise bargaining negotiations, is that correct?
---Not that I can recall, no.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN341

Now, this meeting on 29 September, the bargaining period was served on 22 September. Can I ask you, between 30 September and the commencement of these proceedings, were there any further negotiation meetings between yourself and the union?---3 October and 10 October and there is a meeting scheduled for tomorrow.

PN342

11 am tomorrow?---Yes.

PN343

Now, the meeting on 3 October was a relatively brief meeting, is that correct, half an hour to an hour duration?---Can I refer to my minutes? I just - - -

PN344

Yes, of course?---That was - 3 October was a normal meeting. It started at 9 o'clock and I believe it finished around 3 o'clock.

PN345

Yes, okay, so it took some time?---It was to consider the specific matters mentioned of annexures to the agreement, to the workplace agreement.

PN346

Just focusing on the 3 October meeting, Mr Wood. There was no prohibited content issues raised by any union negotiator in that meeting, was there?---Not to my recollection.

PN347

Of any type, payroll deductions, et cetera?---That's correct.

PN348

Now, by that stage, Mr Wood, you received a bargaining period notice by the union?---Yes.

PN349

You understand that the union's initiated a formal legal process which could perhaps lead to other steps under the Act?---Yes.

PN350

And do you have an understanding of that process?---Generally.

PN351

Yes. Now, I put to you, Mr Wood, that at the meeting on 3 October, being forewarned by the union as to a possible escalation of matters that you would have been quite - and your staff would have been quite diligent in ensuring that the minutes accurately recorded any matters that might be relevant to that issue?
---There was no particular emphasis on the bargaining period. We were continuing the negotiations as scheduled and Wayne Small, when he handed me the bargaining notice, the statement he made to me was, I've been instructed to give you this. Look, it doesn't mean that we're going to use it, but we've got the steps in place.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN352

I see. Now, when you say on 3 October, was that in the back of your mind or not?---No. There was no mention of the bargaining period and it wasn't in the back of my mind. We were intent on getting the draft document to a stage where it could be printed and distributed and then for - my mind was on speaking to the workforce, so.

PN353

THE VICE PRESIDENT: Sorry, the draft, who had the carriage of the preparation of the draft agreement, the company or the union?---It was developed through the negotiation meetings and the editing was done by the company.

PN354

So that there has been an evolving document?---Yes.

PN355

And I presume this evolving document at certain points where agreement hadn't been reached has got a union position and a company position or some notation to the effect that this topic is still to be decided?---Not in the actual draft does it indicate areas that aren't agreed, but yes, in accompanying notes and documents and minutes, not agreed. It's draft 19 we're on.

PN356

Can you recall any conversation at any time which has been to this effect, that there will be no agreement or we will not sign an agreement unless X occurs, has there been any conversation of that sort?---No.

PN357

MR BUKARICA: Mr Wood, focusing again on - and I apologise, I know it's hard on you, skipping between meetings and being asked to recall matters that occurred some time ago, but focusing on 3 October meeting, the second before last, if you like, is it your impression that the union negotiators were genuinely trying to reach an agreement at that point?---Yes, I believe so. The tone of the negotiations had gone from a lot of involvement to let's get some specific matters addressed. We realise there's things not agreed in the document and get it out to the workforce and they'll give you their position.

PN358

So there was no capricious removing of claims or upping the ante or anything like that at this meeting?---No.

PN359

And similar approach from the company presumably, let's try to do a deal?
---There's no deals, but we were trying to reach agreement.

PN360

Presumably, Mr Wood, if the company at this point had made an offer of 27 or $28 an hour, is it the anticipation that the union would have signed off on such an agreement?---I - there had been talk of dollars throughout the negotiations.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN361

THE VICE PRESIDENT: I think what Mr Bukarica has suggested to you is that the real sticking point to finalising the agreement was money?---Yes. There are a number of issues though that are considered to be - in words I've used in the negotiation - blockers. One of those blockers was the public holidays. We removed that last week, and the significant others, hours of work and rosters and - - -

PN362

So blockers is a term that's been used - - - ?---I've used blockers as a - look, let's remove this, this is a blocker to the progress of the agreement. One was public holidays.

PN363

So using that term, blocker, in the way you've used it at any rate, it's a good term for the sort of - it graphically displays or rather graphically conveys the meaning, that this is an issue that is an impediment to agreement being reached?---Yes.

PN364

What is the list of blockers? Looking at page 122, there's a list of issues there. Are all of the blockers on that list, or are there other blockers not on that list?
---Generally it covers most of them. There is a more detailed list that was - that Wayne Small and myself prepared after the presentations to the crews, but you could summarise quite a few under those headings.

PN365

So are there any blocker issues that aren't comfortably fitting under one or other of those headings?---Not that I can recall right now.

PN366

MR BUKARICA: Can I ask a related question, your Honour. In relation to the blocker issues, so described, I'm thinking about the what the typists require, but it probably would - are included in that category payroll deduction issues?---No.

PN367

Union representative, work representative leave?---No.

PN368

Attendance at training off site?---No.

PN369

Payment for union meetings?---No.

PN370

Or indeed, release to attend union meetings on an unpaid basis?---No.

PN371

Thank you. I'm sorry, I will be winding up shortly.

PN372

Now, Mr Wood, can I take you to the meeting of 10 October 2006. This was the last meeting of the EA negotiating committee, correct?---Yes.

**** MURRAY ALAN WOOD XXN MR BUKARICA
PN373

Now, by this stage, Mr Wood, you would have received, and correct me if I'm wrong, the application which initiated this matter?---Yes. I was off site. At this meeting we've conducted all of our negotiation meetings off site. I was informed that a fax had come in the details of which were not given to me. I asked that that be scanned and emailed. A fax came in at 10.31. I received an email around lunch time of that.

PN374

Yes. So prior to entering into this meeting which commenced at 12.30 you'd received a union application?---Yes.

PN375

That these proceedings were afoot?---Yes.

PN376

And having regard to that, Mr Wood, I ask the same question I asked in relation to the 3 October meeting, did that knowledge influence the way in which you kept records of this meeting, that is, were you particularly careful or you instructed anybody to be particularly careful to ensure that each comment, each statement by the union representatives was carefully recorded?---Can I just say that these minutes that appear in the bundle are not the complete minutes of the meeting, that they were supplied to me on the basis that they hadn't been completed or submitted and he said yes. I said is this action in respect of each of the nature of industrial action - or - no. The question I said after that, was this the nature of industrial action proposed to be voted on and a ballot shouldn't ought to be given and I went through each individual classification of industrial action that's listed on page 122 and he said, yes, he was aware of that. I said is the nature of the industrial action proposed to further the claims in relation to the workplace agreement and he said yes and I asked Mr Reynolds to specifically note those responses.

PN377

Mr Wood, did - - - ?---And there was one other question I asked then, and in relation to the notice of initiation of a bargaining period, was the industrial action proposed also to further the issues raised in the bargaining period of initiation notice and he said yes.

PN378

Yes. Nothing further, your Honour, thank you.

<RE-EXAMINATION BY MR LLOYD [12.15PM]

PN379

MR LLOYD: Sir, can I - you were asked questions about the union's desire to see the company's policy. Can I ask, there's receipt of the policy, has that been indicated to you, the union's agreement in relation to an enterprise arrangement, was it conditional on seeing that policy, has that been conveyed to you?---No.

**** MURRAY ALAN WOOD RXN MR LLOYD
PN380

Sir, you've referred a couple of times to issues being signed off, particular issues along the way, agreement being reached on a particular issue?---Yes.

PN381

Is it the case that issue is now signed off or is it subject to consideration of the whole deal as a package?

PN382

THE VICE PRESIDENT: What's signed off?

PN383

MR LLOYD: The specific issue - perhaps I can put the question less carelessly.

PN384

THE VICE PRESIDENT: I'm just confused about what is a specific issue?---Are you asking has it been resolved to the satisfaction of the parties?

PN385

MR LLOYD: Well, sir, an example would be the - you referred to the public holiday issue being resolved?---Yes.

PN386

Is it a case that issue is resolved or is it subject to consideration of the whole package by the workforce?---It's - whilst we have reached agreement with the delegates on individual clauses in the proposed agreement, the whole package is subject to consideration by the workforce. I have asked previously in a set of minutes that would the parties agree to individual clauses and the response from the delegates was no.

PN387

Has the package yet been considered by the union's members?---The crew presentation and detail was conducted Sunday/Monday. The document was printed on Tuesday of this week and circulated and delivered to those off site and union meetings, my understanding was that union meetings occurred of the crews yesterday with the union delegates and we have the meeting to consider the feedback tomorrow.

PN388

Is there a negotiation or meeting planned beyond tomorrow?---Yes. As required was my statement to the delegates on consideration of the issues raised.

PN389

You indicated in your evidence that at one point you were given a draft workplace agreement prepared by the union?---It was a draft of - it was a draft - I wouldn't say it was a complete workplace agreement. It was drafted provisions that they wished to see included. It was framed around the current certified agreement with certain clauses removed and others amended.

**** MURRAY ALAN WOOD RXN MR LLOYD
PN390

Can I show you this document and ask you whether it's what you were given?

PN391

THE VICE PRESIDENT: How does this arise out of cross-examination?

PN392

MR LLOYD: Well, the witness was asked whether he was given any claim - - -

PN393

THE VICE PRESIDENT: So you're showing him the document, does he understand it to be the document that he was referring to in that evidence, yes.

PN394

MR LLOYD: Correct, correct?---Yes, that is the document.

PN395

Are you able to recall when that was received?---It - in August.

PN396

Could I have that document back, please.

PN397

MR BUKARICA: May I see it?

PN398

THE VICE PRESIDENT: It hasn't got a date on it.

PN399

MR LLOYD: I'll tender a copy of the document identified by the witness as received from the CFMEU in August of this year.

PN400

Can I ask who gave that document to you?---The copy was given electronically first up by Murray Stanford who is the lodge secretary and he has a computer live at those negotiations and then it was given in printed form following that.

PN401

THE VICE PRESIDENT: Is there any reliance you place on these documents, Mr Lloyd, as containing prohibited content?

PN402

MR LLOYD: It contains a number of clauses in which contention and argument could be made in relation to prohibited content.

PN403

THE VICE PRESIDENT: Is there anything that I might describe as clearly prohibited content?

PN404

MR LLOYD: There are a number of clauses in which issues would arise. The two of most significance - - -

PN405

THE VICE PRESIDENT: We can deal with this in due course. I just wanted to know where this was heading.

**** MURRAY ALAN WOOD RXN MR LLOYD
PN406

MR LLOYD: There are two of more significance than others, but there are a number of issues arising in relation to it.

PN407

THE VICE PRESIDENT: So the dates of these two documents, the one that you had identified in the witness box - - -

PN408

MR LLOYD: I understood the evidence to be one document, although it came in two forms?---It was a working - - -

PN409

THE VICE PRESIDENT: The same document electronically to the lodge secretary, district secretary?---Lodge.

PN410

And the copy that was handed to you?---Yes, but it was a working document and an updated version was then handed to us. Both occurred in August to my recollection.

PN411

THE VICE PRESIDENT: Do you tender them, Mr Lloyd?

PN412

MR LLOYD: I tender that document.

PN413

THE VICE PRESIDENT: Any objection, Mr Bukarica?

PN414

MR BUKARICA: I have no objection.

PN415

MR LLOYD: There's no further questions of the witness, sir.

PN416

THE VICE PRESIDENT: Just as a matter of interest, Mr Lloyd, the paragraphs that you say are the two most contentious ones?

PN417

MR LLOYD: Clause 3.3 which relates to the agreement being binding on successors, et cetera, and clause 23.1, increase in hands, relevant to matters pertaining to the employment relationship. There are others we would place some reliance upon, but I accept there are competing arguments.

PN418

THE VICE PRESIDENT: Mr Wood, thank you very much.

<THE WITNESS WITHDREW [12.24PM]

PN419

THE VICE PRESIDENT: Just before you do, Mr Bukarica, are you proposing to call the other witness?

PN420

MR LLOYD: I was proposing to call the other witness.

PN421

MR BUKARICA: Your Honour, prior to my friend doing that and I do this with some reluctance because I'm aware that the parties have a right to fully prosecute their cases how they see fit, but I'm also bearing in mind the particular objects of the division, of the part and the particular requirements on the Commission to deal with this matter expeditiously and what I would put to the Commission is a question as to whether and I know this is the wrong characterisation of it, but whether there is in fact a cause to answer, bearing in mind the construction of sections 461(1)(a) and 461(1)(b). Now, I do this on the basis of the evidence of Mr Wood and, your Honour, I will briefly summarise the point.

PN422

THE VICE PRESIDENT: Mr Bukarica, I don't know what the evidence is going to be that the witness is going to give and you're effectively asking me to summarily - to move immediately to determine the matter without allowing Mr Lloyd to call further evidence.

PN423

MR BUKARICA: Yes.

PN424

THE VICE PRESIDENT: I don't think that - there are all sorts of procedural fairness problems with that.

PN425

MR BUKARICA: Yes. Well, of course your Honour's ..... and I will - - -

PN426

THE VICE PRESIDENT: Certainly I am happy to entertain argument about whether or not there's any need for you to go into evidence assuming there's no change of position as it stands at the moment.

PN427

MR BUKARICA: Yes. If the Commission pleases.

PN428

THE VICE PRESIDENT: Yes, Mr Lloyd.

PN429

MR LLOYD: I call Mr Michael Reynolds to give evidence.

<MICHAEL JOHN REYNOLDS, AFFIRMED [12.26PM]
<EXAMINATION-IN-CHIEF BY MR LLOYD

PN430

THE VICE PRESIDENT: Thanks, Mr Reynolds. Yes, Mr Lloyd.

PN431

MR LLOYD: Sir, your name is Michael Reynolds?---That's correct.

PN432

And you're employed by Ulan Coal Mines Ltd?---Yes.

PN433

In the position of supply and contract manager?---That's correct.

PN434

And, sir, is it correct that you have attended the negotiation meetings between Ulan and the CFMEU in relation to a new workplace agreement?---Yes.

PN435

And have you attended all of those meetings?---Yes.

PN436

Sir, have you been the preparer of the minutes in relation to the meetings?---Yes, I have.

PN437

And is it correct that the principal company representative at those meetings has been Murray Wood?---Yes.

PN438

And you have been assisting Murray?---Yes.

PN439

And the union has been represented by its lodge officials in those meetings?
---Yes.

PN440

Can you just identify who those persons are?---Murray Stanford, Wayne Small, Tony Brett and Craig Comb.

PN441

And, sir, you're familiar with the minutes that have been prepared?---Yes.

PN442

Can I ask do they contain a record of all of the content of the meetings?---As much as I can get down, yes. It's just dot points, so as much information as I could jot down is down there.

PN443

But things could be said that aren't in the minutes, is that correct?---Yes.

PN444

Is there any particular reason for that?---Sometimes I can't keep up and other times someone will say, look, this is off the record and we'll just have a general discussion.

**** MICHAEL JOHN REYNOLDS XN MR LLOYD
PN445

And have there been a number of times discussions have occurred off the record?
---Yes.

PN446

Can I ask you about some particular subject matters? Can I ask you about payroll deduction of union dues? You understand what that is?---Yes, yes.

PN447

Can I ask has that been sought by the union in the negotiation meetings?---I had been at the start of the negotiations, yes.

PN448

Has it been discussed at a number of meetings?---Yes, well, discussed at probably the majority of the meetings we've had. The later ones, it's been off the record, just discussions to see whether - because once it was found it was a non-allowable matter or it couldn't go into the EA agreement, they wanted to have I think it's a common law deed as in a site agreement, the discussions were along those lines.

PN449

Who has raised the matter on behalf of the union?---The president, Wayne Small.

PN450

Are you able to recall particular meetings at which it's been raised?---I couldn't specify any specific meetings, but it's been raised at the majority of our meetings.

PN451

THE VICE PRESIDENT: When is the latest time, the most recent time that there was a request for a common law deed that encompassed payroll deductions?---The last meeting we had at the Winning Post, again it was off the record, just asked if there was any thought about a common law deed for the deductions.

PN452

On 10 October?---It would have been the last meeting we had, yes.

PN453

Doing the best you can, who said what?---Well, Wayne Small is usually the gentleman that says, look, this is off the record, have we had any further thoughts on this.

PN454

Doing the best you can, what did Mr Small say that causes you to assert that summary or conclusion from the witness box?---Well, he says, look, this is off the record, has there been any more thought about payroll deductions for the unions?

PN455

MR LLOYD: Sir, what did you understand the union was seeking in relation to that?---To have their dues taken out of their pay and there was another reason they brought it up there at one stage was for - I think they had an agreement that if someone was injured or a family member was injured, they used to have a levy off each of the employees, paid for financial assistance to families and they also want to be able to do that.

**** MICHAEL JOHN REYNOLDS XN MR LLOYD
PN456

Sir, you mentioned it being raised on 10 October. Are you able to recall before that when it might have been raised?---As I said, the majority of meetings, it was raised one way or another. It was continually asked off the record in relation to meetings, has there been any further thought on a common law deed.

PN457

THE VICE PRESIDENT: Mr Reynolds has given evidence in the last couple of hours, very careful evidence and correct me if I'm wrong, Mr Lloyd, but the effect of his evidence is that payroll deduction of union dues was not expressly mentioned, payroll deductions were mentioned, if there was a genuine, as it were ..... in the air of the unstated focus was deduction of union dues, but that wasn't actually expressly stated, is that your recollection?---Well, my recollection it was, yes.

PN458

That was actually mentioned?---Well, that to me, yes. That's what I heard, that's what I heard them talk about.

PN459

MR LLOYD: Sir, can I ask you about another matter, the union having meetings on site that were paid, paid union meetings on site, has that been raised?---Yes, it has.

PN460

Or claimed by the union?---Yes, it has been raised at meetings.

PN461

Are you able to recall the number of times it might have been raised?---It was probably only raised half a dozen times, at the beginning, when we first started and there was a couple of times after that. It hasn't been a major topic of conversation, but it has been raised probably half a dozen or so times. I can't specify which meetings.

PN462

Are you able to recall who raised it?---Not off-hand, no.

PN463

Are you able to recall the words by which it was raised, what was said?---I think it was just are we going to be compensated for our union meetings on site, during work hours, that was the guts of it.

PN464

Sir, can I ask you about union delegates or lodge officials having paid leave for the purpose of union business, has that been raised?---It has been raised, not a great deal of times but it has been mentioned once or twice. But again, it wasn't one of those topics of a lot of conversation.

**** MICHAEL JOHN REYNOLDS XN MR LLOYD
PN465

Are you able to recall who raised that?---No, I'm not. I couldn't testify.

PN466

Are you able to recall what was asked for?---They were just asking if there was training or something off site for the unions to go to that they'd be compensated for it.

PN467

When you say training, did they explain what they were seeking in relation to that training?---No.

PN468

Sir, can I ask, the subject of right of entry, was that raised in the meetings?---It was raised. Again, it was only once or twice that I've heard it.

PN469

Are you able to recall what was asked for?---It was just for access to Murray Wood, our operations manager, for the union if there was any issues.

PN470

THE VICE PRESIDENT: Who, when and what did they say?---They just wanted to make sure that they had - - -

PN471

No, who?---The union delegates had access to our operations, the manager Murray Wood.

PN472

Who said what and when did they say it?---I really can't tell you what meeting it was in.

PN473

Correct me if I'm wrong, Mr Lloyd, but Mr Wood didn't give any evidence about right of entry - - -

PN474

MR LLOYD: It's in his statement.

PN475

THE VICE PRESIDENT: It's in his statement.

PN476

MR LLOYD: I believe it's in his statement.

PN477

THE VICE PRESIDENT: But he didn't give any oral evidence in the witness box.

PN478

MR LLOYD: He did give some oral evidence by reference to a page of the minutes.

**** MICHAEL JOHN REYNOLDS XN MR LLOYD
PN479

THE VICE PRESIDENT: I must say I don't - there it is, page 64.

PN480

MR LLOYD: Sir, are you familiar with the concept of a common law agreement or a deed, or a site agreement?---I've only heard it since I've been a part of these negotiations.

PN481

THE VICE PRESIDENT: Just before you go on, who said what in relation
to - - -?---In regards to?

PN482

So like you've summarised the effect of what people have said?---Yes.

PN483

What I'm asking you is who is the specific, who was it to the best of your recollection, when was it to the best of your recollection, what did they say to the best of your recollection?---Again, there's been so many meetings I find it hard to recollect which meeting it was.

PN484

That's fine, if you're having difficulty recollecting which meeting it was. Is it one of the recent meetings or one of the meetings back in the early period of the negotiations back in March or April?---There was some talk about it earlier on in the meetings, probably March, April, May, around that period when these issues were first brought up.

PN485

Who specifically said something that allows you that forms the conclusion you had a moment ago and doing the best you can what did they say?---Wayne Small was usually there, probably the speaker on behalf of the union delegates in a lot of cases.

PN486

But doing the best you can what do you say?---Regarding the common law deed or - - -

PN487

No, regarding the right of entry?---Right of entry.

PN488

The right of entry and the other matters that you've said were being raised?
---Well, from what I can recollect Mr Small just said that the union delegates needed access to Mr Wood, or Murray, the operation manager at Ulan Coal, if there was any issues with union delegates.

PN489

You haven't made a distinction between delegates and officials?---Sorry, the officials, the four officials that were at the meeting, that's who I presume they were talking about.

**** MICHAEL JOHN REYNOLDS XN MR LLOYD
PN490

So he said that, did he say anything else?---That's all I can recall from the right of entry.

PN491

Yes, Mr Lloyd.

PN492

MR LLOYD: Sir, I was asking you about the common law agreement or deed or side agreement and you said you'd heard that expression in the meetings?---Yes.

PN493

What was said in relation to that particular matter?---Again, during the - I can't specify which meeting, during one of the meetings, a few - - -

PN494

THE VICE PRESIDENT: Early, recent? Early or recent?---Earlier on in the piece when we first started negotiations and also recently in the last, you know, four or five meetings also.

PN495

Yes?---Again, Mr Small would say it was off the record, there are things as common law deeds, is there a change we could have one of those put in place to cover the things that aren't acceptable in this EA agreement.

PN496

MR LLOYD: Who said that, sir?---Mr Small, Wayne Small.

PN497

THE VICE PRESIDENT: Do you say he said that as recently as the meetings that occurred in October?---Yes.

PN498

Is there a chance that we could have one of those, do you recall whether any response on behalf of the company when he said that off the record?---No, there was no - - -

PN499

So the proposition that that was raised early on in the piece and that either
Mr Wood or Mr Lewis or both of them conveyed that the company was not familiar with anybody's side agreements aside these, there would just be a workplace agreement?---That's right.

PN500

So you say they have been persisting in asking for a common law deed?---Yes, they have.

PN501

Notwithstanding that position being made quite some time ago?---That's correct.

PN502

MR LLOYD: I have no further questions for the witness.

**** MICHAEL JOHN REYNOLDS XN MR LLOYD
PN503

THE VICE PRESIDENT: Thank you. I think we'll take an adjournment for about 10 minutes and we'll sit on. Is there any difficulty sitting on past one?

PN504

MR LLOYD: I'm sorry, your Honour?

PN505

THE VICE PRESIDENT: Is there any difficulty sitting on past one?

PN506

MR LLOYD: No, there's no difficulty. We would like however to have a review of the case that your Honour's associate has provided us to the extent that it is relevant to the case.

PN507

THE VICE PRESIDENT: All right. I will adjourn for 20 minutes now and then we'll just sit on until it's finished. Mr Bukarica, if it does look like you will need to call Mr Small - - -

PN508

MR BUKARICA: It does like I do, yes, your Honour.

PN509

THE VICE PRESIDENT: All right. I will adjourn for 20 minutes.

<SHORT ADJOURNMENT [12.42PM]
<RESUMED [1.05PM]

PN510

THE COMMISSIONER: Mr Bukarica.

<CROSS-EXAMINATION BY MR BUKARICA [1.05PM]

PN511

MR BUKARICA: Mr Reynolds, you have been involved in a lot of these negotiation meetings over the last six to eight months, is that correct?---Yes, I have.

PN512

And some of those meetings are held, or most of those meetings are held off site?
---Yes, they are.

PN513

Yes and one of the common venues is the Winning Post Motel in Mudgee?
---That's correct.

PN514

Now, I think you gave an answer, and correct me if I’m wrong Mr Reynolds, to the effect that it’s sometimes difficult in terms of your memory to distinguish one meeting from another. Do you recall giving an answer to that effect?---Yes, it is.

PN515

And in particular it’s hard to distinguish when you’re at a particular meeting when it’s the same venue. Is that a problem you have?---Well, it’s hard to specify when someone’s at a particular meeting because there’s just so many of them.

**** MICHAEL JOHN REYNOLDS XXN MR BUKARICA
PN516

Yes. So in relation to the Winning Post venue there’s been a number of meetings there over the last six weeks, hasn’t there?---Yes, there’s been a few.

PN517

Including a meeting on the 21st and 22 September, do you recall that meeting?
---It was a two day meeting.

PN518

Yes, do you recall that?---Yes, it was a two day meeting. Look, I don’t know whether the Winning Post or the Country Comfort, I’d have to have a look at my minutes to work out where it was held.

PN519

I see. So you’re not even sure whether that meeting on the 21st and 22nd was at the Winning Post?---I’d have to check my minutes. As I said we swap and change a fair bit.

PN520

THE VICE PRESIDENT: Is there any other two day meetings?---We had a two day meeting, I think it was at the Soldier’s Club. Was it one there?

PN521

MR BUKARICA: When was that, Mr Reynolds?---Would have been one of the September meetings.

PN522

One of the September meetings?---Yes.

PN523

Might have been August?---No, it wasn’t - it could have been early September or something like that. I don’t know how far back it was. As I said there’s a fair few meetings that have been there.

PN524

I see. And so your recollection, Mr Reynolds, of any particular meeting and do I take it it can be vague sometimes?---Specifying which meetings people have said specific things in sometimes becomes a little bit hard to pinpoint the actual meeting, yes.

PN525

Yes, okay. And so is it possible that you might have been mistaken about some of the dates in response to questions by Mr Lloyd in relation to comments made by the union earlier?---No. Generally I keep track of the times of when people say things, it’s just the venue or the meeting date I find hard.

PN526

The meeting date?---Yes, like to actually pinpoint the actual date.

PN527

Now, Mr Reynolds, in your evidence you said words to the effect that as of
10 October the union was making claims for prohibited content in negotiating with the employer. Do you recall that evidence?---I said that on 10 October during our last meeting I think was the one we had, but again they mentioned it was wanted off the record and asked if there was any chance of a common law deed, or a separate deed.

**** MICHAEL JOHN REYNOLDS XXN MR BUKARICA
PN528

Mr Reynolds, 10 October was two days ago?---Yes.

PN529

Yes. And you understand you’re on oath, Mr Reynolds?---That's correct, yes.

PN530

Are you absolutely clear that on 10 October union officials made claims for common law deeds?---Well, if that was the date of the meeting, which I think it was a Tuesday - - -

PN531

Yes. Who did that, Mr Reynolds?---Lance Moore was, as I said before, he’s usually the one that speaks out and asks and just asked for off the record, is there any chance of these things being handled in a different deed.

PN532

I see. Now, you were in that meeting with Mr Wood representing the company?
---Yes.

PN533

And Mr Small from the union?---Yes.

PN534

Mr Murray Stanford?---I’m just trying to recollect who was there now. Yes, I think Murray and Craig.

PN535

And Craig Carbury. Now, are you suggesting, Mr Reynolds, that this comment was made to you alone?---No, it wasn’t made to me alone.

PN536

So it was made in front of the other participants in the meeting?---Yes.

PN537

THE VICE PRESIDENT: I understood from your evidence, Mr Reynolds, that your role at the meeting was not as a participant, but rather as a note taker?
---Solely, yes. Well, that’s the main part of my role there, yes.

PN538

And that Mr Wood was the one there to do the negotiating on behalf of the company?---Yes.

PN539

Generally speaking?---Yes. I just was for support I suppose.

PN540

MR BUKARICA: Now, you say do you, Mr Reynolds, that on 10 October
Mr Small said off the record words to the effect of is the company going to give us a common law deed, words to that effect?---Yes, something to that effect, yes.

PN541

Can you please try to relate what you say Mr Small said?---He said off the record is there any chance that we can have a look at, get one of those deeds to cover the not allowed matters in the EBA, something along those lines.

**** MICHAEL JOHN REYNOLDS XXN MR BUKARICA
PN542

And this was said in front of Mr Carbury and Mr Wood?---It was said in front of everybody in the room.

PN543

I see. And is there any reason why you alone would - was there any acoustic situation in the room, or barrier which would mean that you would be the only person to hear such a comment?---Probably not. Wayne was probably closer to me than he was to Murray. Murray was across the other side of the room. I was on this side and then there was Wayne and the other union officials on the table.

PN544

Now, are you clear, Mr Reynolds, that it wasn’t an earlier meeting such as the 21st or 22 September?---It’s been raised at a few meetings, it’s not just one meeting.

PN545

And you say the words common law deed were used?---Well, a separate deed, common law deed, they’re just the words - - -

PN546

THE VICE PRESIDENT: The word deed was used?---Yes.

PN547

MR BUKARICA: Now, Mr Reynolds, is there any doubt in your mind that it might have been an earlier meeting at the Winning Post other than 10 October?
---There’s been a number of meetings at the Winning Post where that has been raised before.

PN548

THE VICE PRESIDENT: I think what Mr Bukarica is driving at is there any doubt in your mind that this was said on Tuesday this week?---No. No, no doubt at all.

PN549

MR BUKARICA: Mr Reynolds, you said earlier that you have some of your meetings merging with others in terms of your recollection?---Mm mm.

PN550

I’m putting to you that no such comment was made this Tuesday by any union official at the meeting. I’m offering you the opportunity to correct.

PN551

THE VICE PRESIDENT: A union representative.

PN552

MR BUKARICA: By Mr Small, Mr Carbury or Mr Stanford. Do you accept that?---No, I don’t. You can put that to me, but I don’t agree with it.

PN553

Mr Reynolds, there was another meeting on 3 October. Do you recall that one?
---I’d have to look at my minutes to find out.

**** MICHAEL JOHN REYNOLDS XXN MR BUKARICA
PN554

I see. But you recall the meeting on 10 October?

PN555

THE VICE PRESIDENT: It was about a week ago?---Yes, correct.

PN556

MR BUKARICA: Do you recall there being a meeting then?---As I said I’d have to look at my minutes to verify the dates.

PN557

THE VICE PRESIDENT: You don’t have your minutes in front of you at the moment, so searching your recollection do you recollect the meeting about nine days ago?---Yes, we’ve been having them virtually weekly so yes, I’d say there would be.

PN558

MR BUKARICA: Mr Reynolds, what was said at that meeting?---To be specific I really - well, we’d been talking about negotiations and terms of the document.

PN559

Common law deeds were raised at that meeting?---There’s a possibility it could have been raised there. As I said they were raised, at the majority of the last few meetings we’ve had it’s been raised a number of times.

PN560

The majority of the last few meetings?---Probably the last half a dozen meetings it’s probably been raised in the majority of those meetings yes, that where it’s been asked to be off the record and they’ve requested a common law deed, or a deed, whatever it is.

PN561

I see. So the majority of the last half a dozen or so meetings, which would have taken us back to early/late August thereabouts, early September, it’s been raised during those meetings?---Yes.

PN562

I see. Now, Mr Reynolds, are you able to produce any written record of such claims?---No I haven’t because as I said when they mention the issues they’re off the record and - - -

PN563

THE VICE PRESIDENT: Whenever they mention the topics, the prohibited content topics - sorry, let me start that again. You understand here today as a concept prohibited content and that deductions of union dues is prohibited content, paid union meetings is prohibited content, right of entry for union officials is prohibited content? Do you understand those things?---Yes.

**** MICHAEL JOHN REYNOLDS XXN MR BUKARICA
PN564

Is it your evidence that whenever any of those prohibited content issues were raised they were raised in an off the record manner?---Yes, yes. At the start of our negotiations they were raised during the meetings as part of the minutes and I think I documented some of those then it faded for a little while and then it came back up and every time it was raised, whether it was being deducting the union dues or whatever they do, they always say off the record have you thought about another deed so we can do this.

PN565

Doing the best you can at what point of the year did they cease raising them in the ordinary sense that would find them in the minutes then start raising them as off the record remarks?---July, August or something. That’s only an estimation too.

PN566

MR BUKARICA: So July/August the union stops generally raising these issues, is that right?---As part of the minutes of meetings, minutes of the meeting, yes.

PN567

Now, I put to you, Mr Reynolds, that the last time that there was anything resembling prohibited content discussed either on the record or off the record was either 21st or 22nd September or possibly 29 September. Is that your recollection?---No, it’s not.

PN568

So you say, Mr Reynolds, that there’s been a further discussion of prohibited content matters between the company and the union since that time?---As I said off the record I think it was the last meeting we had again it was asked had we thought anything else about a deed.

PN569

Mr Reynolds, Mr Woods was in that meeting, you’ve already given evidence about that?---Yes.

PN570

Mr Woods’ evidence is that there was no claim regarding any prohibited content, or any mention of any prohibited content during that meeting?---Well, Murray might not have heard it. As I said I can only state what I hear.

PN571

Nothing further, your Honour.

PN572

THE VICE PRESIDENT: Re-examination, Mr Lloyd?

<RE-EXAMINATION BY MR LLOYD [1.18PM]

PN573

MR LLOYD: Sir, in response to your last question you indicated a possibility
Mr Wood didn’t hear something that was said. Is there any particular reason why that might be the case?---Well, sometimes while we’re doing the negotiations and we’re editing the document Murray would be working on the computer doing some editing or taking notes so his concentration is probably not 100 per cent on some of the questions at that time. So yes, a possibility that he might not have heard it.

**** MICHAEL JOHN REYNOLDS RXN MR LLOYD
PN574

I have no further - - -

PN575

THE VICE PRESIDENT: This is a remark that would have stood out like a sore thumb, wouldn’t it? A real clamp?---Well, you’d think so, but when you hear it consistently I suppose and we gave a reply earlier on in the piece, it just sort of come up as a comment more than anything else.

PN576

MR LLOYD: No further questions.

PN577

THE VICE PRESIDENT: Thank you, Mr Reynolds.

PN578

MR BUKARICA: Your Honour, I was originally intending only to call
Mr Small, however in view of - can the witness be released?

PN579

THE VICE PRESIDENT: Mr Bukarica, let’s just take it one witness at a time. Thank you, Mr Reynolds, you don’t need to remain in the witness box.

<THE WITNESS WITHDREW [1.19PM]

PN580

MR BUKARICA: Your Honour, what I was going to propose with the leave of the Commission is to call Mr Stanford in addition to Mr Small, Mr Stanford only to deal with those two meetings on 3 October and 10 October 2006.

PN581

THE VICE PRESIDENT: Once you call the witness he’s exposed to cross examination at large by Mr Lloyd. It’s a matter for you as to which witnesses you call.

PN582

MR BUKARICA: Perhaps I'll proceed on that basis.

PN583

THE VICE PRESIDENT: I think there’s a tension that I’m just turning over in my mind between the desirable course of the bench not giving any indication as to which way it views the matter, or doing that in a very cautious and limited way, and the need to try and get the matter finalised sooner rather than later in accordance with what the Act enjoins the Commission to do. As things stand at the moment I was unimpressed with the witness, with the evidence of
Mr Reynolds. I thought Mr Wood gave very careful evidence and I am not disposed at the moment to accept Mr Reynolds’s evidence. Mr Wood was the negotiator, is the line manager and his evidence about admissions about what the blocker issues were and his specific acceptance that the prohibited content matters that have been relied upon were not blocker issues, it seems to me it was careful evidence by somebody who is in the nature of things giving very reliable evidence.

PN584

MR BUKARICA: Yes.

PN585

THE VICE PRESIDENT: If that effects the forensic judgment that you make about whether you need to call additional witnesses is a matter for you.

PN586

MR BUKARICA: Yes. Your Honour, perhaps if I propose we to then raise what I initially was going to raise before the witness evidence that my friend had included and that was whether on the basis of the evidence that is currently before the Commission there’s any substance in the challenge by the employer and that is simply this, your Honour. The evidence is clear on this point, that on
3 October - - -

PN587

THE VICE PRESIDENT: It’s a whole complicated law about this, Mr Bukarica,
about .....

PN588

MR BUKARICA: Your Honour, there is a simple issue here if I can indulge. The evidence is that Mr Wood was served with the bargaining period notice of
22 September by virtue of the operation - - -

PN589

THE VICE PRESIDENT: I understand the argument. You’re going to say the Act is concerned with what occurs between the commencement of the bargaining period, proper service of the notice and the date of the application and whilst there may be some indirect relevance as to what’s occurred before hand, on the evidence before me at the moment if one disregards the evidence of Mr Reynolds the union is genuinely trying to reach agreement. It’s not seeking prohibited content.

PN590

MR BUKARICA: Yes.

PN591

THE VICE PRESIDENT: I understand the force in what you put.

PN592

MR BUKARICA: And I think, your Honour, as your Honour is well aware the authorities in the CFA case and Blue Circle dealt squarely with the proposition of conduct occurring during the bargaining period. Now, this of course is a further question, your Honour, which - - -

PN593

THE VICE PRESIDENT: Well, let me hear from Mr Lloyd. Mr Lloyd, what do you say? Mr Bukarica is saying that I should not require him to go into evidence, but should entertain an argument now as to whether or not the requirements of the Act have been made out on the basis of the evidence that has been led by your witnesses. What do you say to that?

PN594

MR LLOYD: Well, I’d submit the matter should run in the normal way so if
Mr Bukarica does not wish to call any evidence we would proceed into submissions and the matter is then for your Honour to determine. If Mr Bukarica wishes to takes risks, et cetera, in the conduct of his case that’s a matter for him. But we submit that the matter should be determined in the proper way.

PN595

THE VICE PRESIDENT: If this was a court that would be the court position. Why is it your discretion as to procedure in section 110 something that authorises the Commission in an appropriate case to entertain the sort of argument that
Mr Bukarica is putting forward without the tendency that he can’t go into evidence?

PN596

MR LLOYD: I don’t deny the Commission has great discretion in terms of the manner in which the procedures are conducted, but the normal approach would be for evidence to be led and submissions then made. I can’t deny that that discretion exists. It’s a matter of being applied in a way that’s not unfair to either of the parties in the conduct of the proceedings.

PN597

THE VICE PRESIDENT: Mr Bukarica, I think you should call some evidence.

PN598

MR BUKARICA: If the Commission pleases.

PN599

THE VICE PRESIDENT: The course you've urged upon me is tempting. It's tempting for a number of personal reasons as well as having to deal with the fact that I didn't get any sleep last night. But I don't think it's a wise course for me to adopt.

PN600

MR BUKARICA: If the Commission pleases. I call Mr Small.

PN601

THE VICE PRESIDENT: Thank you.

<WAYNE LESLEY SMALL, SWORN [1.26PM]
<EXAMINATION-IN-CHIEF BY MR BUKARICA

PN602

THE VICE PRESIDENT: Thank you, Mr Small, take a seat.

PN603

MR BUKARICA: Mr Small, you're the lodge president of the CFMEU Ulan Lodge?---Yes, that's correct.

PN604

And how long have you held that position?---Five years.

PN605

And is the 2003 agreement which applies at the Ulan side the first negotiations that you were involved in?---No.

PN606

What previous negotiations were you involved in?---I've been involved since 98 was the first one we ever had at Ulan, I was involved.

PN607

In what capacity?---I was vice president.

PN608

Now, could you briefly describe the process that the negotiations have taken both for the 2003 agreement and its predecessors as far as your involvement is concerned?---Well, this one is a lot different, this one, compared to what it was before where we had matters in there that we could deal with where because allowable matters that we can't deal with is prohibited, in this current one with the one before where we had contractors and union meetings in work time, paid. It's all changed to - this one's been a lot harder.

PN609

Mr Small, can you just describe who has the main carriage of leading the union negotiations at the Ulan side?---We've got four, three blokes besides me. We've got two vice presidents and the secretary and we're the negotiating team for the union, for the members at the mine side.

PN610

And what role does the district or - firstly, the district level of the union play in negotiations?---Well, we don't do - every meeting we have I give a report to Graham Osborne or Wayne McAndrew to say what's taken place and they give us advice on matters of how we negotiate.

PN611

But they're not in attendance at every meeting?---No, they haven't been. Graham Osborne has been at maybe two or three.

PN612

Mr McAndrew?---Yes, Wayne's been - no, I don't think he's been - he might have been one.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN613

Now, the first negotiation meeting for the replacement workplace agreement for the 2003 agreement occurred on 29 March?---I think, yes. It was the first one, yes.

PN614

And have you attended all subsequent meetings?---All but one. I didn't attend the one on 27 June, I was at Broken Hill.

PN615

Now, what is it that the union from the lodge's perspective attempting to achieve in those negotiations?---We're trying to get a pay rate and keep the conditions that we're allowed to have in the document and a decent bonus.

PN616

And presumably you want those matters dealt with by way of a registered workplace agreement?---Yes, that's the idea of it, yes, negotiate in good faith and hopefully at the end of the day we get something that both parties can handle.

PN617

Now, who's been the main company representative in negotiations?---At the start there was Murray Wood, there was Charlie Allen, Bob Dixon and they've disappeared, then Tim Burgess come on the scene and then he hasn't been back and Murray Wood's been doing it on his own with Mr Reynolds taking the minutes.

PN618

In your experience has Mr Reynolds participate actively in negotiations on behalf of the company?---A couple of times he's tried to but I don't think he understands underground much. He's not an underground worker and I don't think he understands much of the activities that happen underground.

PN619

Now, while we're on the topic, Mr Small, when was the last meeting you had with the company about a workplace agreement?---Tuesday I think, the 10th.

PN620

10 October?---10 October, yes.

PN621

And who was in attendance at that meeting?---Murray Wood, Mick Reynolds, myself, Murray Stanford and Craig Carbury.

PN622

And was there anyone else in attendance?---No.

PN623

And what was the venue of that meeting?---The venue was at the Winning Post in Mudgee.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN624

Which is a motel?---It's a motel, yes. They've got a room out the back.

PN625

Now, Mr Small, do you understand the concept of prohibited content under the Workplace Relations Act as amended as of 27 March 2006? I know what your Honour is going to say, I'm in the same position?---Yes, I do because we were called to a lodge officer's conference in Penrith in November last year where we were spoken to about what we could have in an agreement and what we couldn't have and we met with the district officials about four weeks in Lithgow, again about what we can have and what we can't have.

PN626

Now, what was the nature of the advice you received about what you can and what you can't have - - -?---Well, just the prohibited ones of what used to be there and now can't be there and there was a list in the EA that's been on the board. We've had a round of meetings with the men, or Mr Wood, Murray Wood has and I attended all of them. I think there was five meetings and there was a list at the end of the meeting we put up of what stuff that's illegal and stuff that is missing out of the agreement currently and what we have negotiated.

PN627

And that was at the early stage of the meeting, was it?---It was at the end.

PN628

Sorry, what date was that presentation?---The meetings were on Monday. At the start of Sunday night, this week just gone, Sunday he'd done day shift, Weekend Warriors, night shift Weekend Warriors and then we did day shift at 7 am Monday morning, afternoon shift at two, Monday afternoon and night shift at 10.30 that night and all the meetings were the same as what the other ones were.

PN629

We weren't there just for the - we got asked to come along because I suppose you could call it a joint presentation but we just were there taking notes of what was being said.

PN630

This is just the last few days?---Yes, yes.

PN631

And was it the case that he said what's illegal or not allowed, was that a presentation made to the workforce?---It was at the end of it, it was stated by
Mr Wood about what was in the agreement and he put up on the board of what is missing out of the current agreement and what things that we can't have in the agreement because of non allowable matters.

PN632

Did you make any comments contrary to what was being portrayed to the employees about what's allowed and what's not allowed at that meeting?---No, no.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN633

Just for the record, Mr Small, what are some of the topics that you understand are to be prohibited matters or matters pertaining to the employment relationship?---I think the biggest one at Ulan because we're a remote area, with contractors. We've got no - before - at this point in time in our current agreement if a contractor comes on side or cuts coal it's got to be by agreement between the union and the company. That's one that's prohibited.

PN634

Any other topics?---And union deductions.

PN635

Payroll?---Payroll deductions.

PN636

Payroll deductions?---Payroll deductions I should say, yes.

PN637

Anything else?---Right of entry, I think that was one, just more or less to do with the union and the word union can't be in the agreement anywhere.

PN638

Is there any other items, any that relate to leave for example?---The leave's changed to what it was, yes. Now we've got two weeks as if you're at work where that wasn't there before. It's a bit hard to administer I think. It's a bit of a sticking point in our negotiations at this point.

PN639

I'm going to take you back in time in a moment but I just want you to - bearing in mind your understanding of prohibited content, at the meeting on 10 October 2006 which is two or three days ago, do you recall yourself or any other CFMEU representative raising any matter which could be construed as prohibited content?
---No, on the 10th. It wasn't, no.

PN640

On the record or off the record?---Either.

PN641

Are you certain about that?---Yes, very certain.

PN642

So payroll deduction wasn't raised?---No, not at that meeting.

PN643

Right of entry?---No.

PN644

Leave for union representatives?---No, not at that meeting.

PN645

What about, was there a meeting a week or prior to that, Mr Small?---The 29th I think there was one, we had one on the 29th. There might have been one before that, I'm not sure. But there was one on the 29th I remember.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN646

Was there another one in October?---3rd, yes. There might have been one on the 3rd and there was also we had a half hour one on I think it was the Thursday after the 10th - no, we never, sorry. Before that, the Thursday back before that just to tidy up a couple of loose ends before the document went - - -

PN647

Mr Small, do you recall during any of those meetings in October that you or
Mr Stanford, Mr Carbury or any other union representative raised any matter or item with management that could be construed as being prohibited content?---No, not at all.

PN648

THE VICE PRESIDENT: What was your attitude - I understand that negotiations commenced 29 March and there were negotiations in April, June and so on, but just confine yourself to the last couple of months, September and October, what's been your attitude to the making of demands or claims for prohibited content?---No, we haven't made any demands for that because as I said, we know what is prohibited, we know that we can be fined $33,000 and there was no way on probably the main speaker at the thing, there's no way in the world we put ourselves in jeopardy of asking for a prohibited matter to be talked about at that time.

PN649

The fact is this, Mr Small, that the government for whatever reason chose not to release publicly the hundreds of pages of regulations, workplace relations that give effect on 27 March until about a week beforehand and the specification of what amounts to prohibited content, although it's referred to in the Act and defined in the Act is defined by reference to what's in the regulations so that nobody knew what prohibited content, the detail of what it was going to be until the regulations had been made public about a week before 27 March; when was the first time after that that you recollect having a discussion with anyone about the detail about what was prohibited content and what wasn't?---Is that from the company or from the union's side of it?

PN650

From any source?---Well, we had a meeting early in the piece, I think probably the first or second EA meeting and I asked Murray Wood what his thoughts were. I didn't try to get in an agreement or anything, I just said what are your thoughts or what are the rules about us having union meetings on side, are we permitted to have them on side and if we have them outside of the work which we knew we had to have them, would he pay for them outside of work and he said no and that was that, it ended there.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN651

At the time that you said that did you have an understanding that that was a prohibited content subject matter?---Not really, no. We had a meeting in November but it was only hearsay whether it was or whether it wasn't. All that we were asking for was whether we could have a union meeting at the side, that was our main aim, it wasn't to get paid or have it in work time, we knew we couldn't do that. Because at the previous meeting, previous EA 2003, we used to have - before that we had 12 meetings a year paid, that got cut back to six and then there was a big push from the company then not to have them at all, have them in our own time, and we maintained six a year for the three years of the current agreement.

PN652

Yes, Mr Bukarica.

PN653

MR BUKARICA: Mr Small, you mentioned some training instructions on the 11th - sorry, in November last year, is that correct?---Yes, it was at Penrith we went to the lodge officers conference. Ray Barker, our training, national training guru I suppose you could call him and yourself. I think Judy Graham might have even been there too.

PN654

What was that? I can't give evidence, Mr - - -?---No, no, no. There was about - there was all the delegates from the south western district were there. There would have been probably about 30 of us in attendance and we got an overview of what we thought was going to happen on the 11th, in November. I don't know what the date was, it was in November.

PN655

And was the notion of prohibited content discussed?---Yes, well, it was with what we thought would be in there, yes, and knew union - well, I think it was either stated that the word union will probably have to change - the Rugby Union will have to change their name because it's called union, so that was a comment made on the day.

PN656

Now, since the November training you had have you had any other instruction or training about matters like prohibited content?---Yes, we get some brochures and that sent through to the district office and I think that was about five weeks ago we met on a Friday with yourself and the two executives from Lithgow, Wayne McAndrew and Graham Osborne and we were talking about what was prohibited and what was not and the biggest one I think we even alerted to Murray Wood about the sick leave, how it was changed and it was going to be a problem to administer with the two weeks as if you're working the 35 hours.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN657

And without going into what was discussed on that last occasion, Mr Small, what view of prohibited content to go away on from that meeting, or what understanding of prohibited content did you go away from that meeting with?
---Well, we knew we couldn't talk about contractors and union meetings paid at work and deductions.

PN658

When was that meeting?---It was about five weeks ago, five Fridays ago I think, four or five Fridays ago.

PN659

THE VICE PRESIDENT: Mr Bukarica, if I can interrupt for a moment?

PN660

MR BUKARICA: Yes.

PN661

THE VICE PRESIDENT: Mr Small, I've heard the evidence about discussions that occurred early in the negotiation back in the March/April period where the possibility or the question or the issue of a common law deed or some side agreement was raised?---Yes, I mentioned that because when we had the meeting in November there was a common law deed that we were told that you could have, it wasn't illegal to have it but it had to be outside the agreement and I did not ask Murray Wood would the company look at a common law deed for us for deductions.

PN662

Was there some reference to United having put one of these things in place?
---Yes, there was. They had a committee, we were told United had a committee that weren't negotiating an EA, they were a committee outside the EA because, you know, they couldn't use it as a bargaining thing to say, well, if you don't give us this we're not going to do that. They were outside the EA with their negotiations from tying to get a common law deed and I did ask for a common law deed.

PN663

I gather from what you've said that you had a belief at that time, back in March/April, that it was permissible to take matters that you couldn't deal with in a workplace agreement and deal with them in a side agreement?---Yes, that's correct.

PN664

Did your belief in that regard change?---I still we could have had a common law agreement outside the agreement if the company allowed it.

PN665

Is that your belief or do you - - -?---It still is today, yes.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN666

Is it your belief today that you could include things like payroll deduction and union dues in a side agreement?---Well, we talked about deductions but it wasn't actually emphasis on union dues only. My concern has been that I pay money - - -

PN667

If I can just get you to focus though on the question of your belief as you sit here today in the witness box?---Sorry.

PN668

As to what can or cannot be included in side deed, a side agreement?---Yes.

PN669

As you sit here today is it your belief that you could quite properly deal with deduction of union dues, payroll deduction of union in a side agreement?---Not on the side agreement, no, but on a common law deed, or a policy that the company has and they've already indicated to us on 29 September that they would have a company policy on deductions.

PN670

These sensitive matters, the prohibited content matters, you've referred to a number of them already by the entry of deduction, payroll deduction of union dues, paid union meetings, have you at any time to the best of your knowledge said or done anything which might reasonably be construed by the company as a demand or a claim for such an item to be dealt with in a common law deed or a side agreement and your agreement to the other matters, the mainstream matters in the workplace agreement was conditional upon that?---No, never. I did state at the start of the negotiations and I said in tongue in check, I said, "I don't want to be fine for what I'm going to say", I said, "It's nothing to do with the negotiations". I said, "Is there any way we can have the union meetings", and that sort of stuff and that was all off the record. That's one thing that I did say at the meeting. That was right at the back the start, the very start and then that was it. We didn't try to push our claims by demanding that we had to have a common law deed. We let it die. We didn't chase it.

PN671

MR BUKARICA: Mr Small, did you ever in writing by way of a formal log of claims or such a document require the company to enter into a common law deed for those prohibited items?---No, never.

PN672

Have you ever sent an email or any other communication - - -?---No, I haven't, no.

PN673

In relation to the question his Honour asked you about making those prohibited matters or a common law or side be contingent - sorry, workplace agreement contingent on satisfaction of those side agreements or common law deeds; have you ever actually required, short of that, required the company comply with a claim for prohibited items?---Yes.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN674

For example, maybe I could make myself clearer, was it said to Mr Murray Wood or any other company representative we require of you that you continue to pay payroll deductions by way of a side agreement?---No, never. We've never used that as a bargaining all the way through, we've never used that as a bargaining tool for negotiations, never, never.

PN675

Have you ever, in a similar way that I phrased that I last - - -

PN676

THE VICE PRESIDENT: But you did ask to see a company policy?---No, no. What happened was there was a meeting that took place with a higher person than Mr Wood that happened at the Country Comfort, I'm not quite - yes, Country Comfort. I'm not sure what the dates were. It was a Wednesday, it might have been 15 September. Wayne McAndrew was there and Graham Osborne and at the time we had a young fellow and his son was in a bad car accident and what we normally do is we generally donate money out of our pay that goes into the payroll system and that gets paid and plus we ask the question that day because we put money into the Police Force Club, we put money into the Child Care Flight and all the helicopter flights around the town, around the area; we were concerned that we wouldn't be able to do that any more and Glen Lewis left there and said, "Don't worry about it, I'll have an answer for you at a later date". Well that later date I think it was the 29th of last month where they said they'd have a company policy that they would allow us to still have deductions and it wasn't stated union deductions, it was stated union deductions, it was stated deductions.

PN677

Did you ever say anything that might reasonably be construed as making a presentation or the production of such a policy satisfactory to the union a condition reaching agreement on the mainstream matters for the workplace agreement?---No, never, no. As I said, there's a fine there and there's no way in the world I was going to jeopardise anyone getting a fine. I did say at the start that we asked a question back at the start off the record and that's all that was said. It was never ever used for any bargaining tool for furthering our claims, no.

PN678

MR BUKARICA: And did you link any prohibited items to the negotiation of the workplace agreement or conclusion of it?---No, no.

PN679

So for example, paid union meetings, did you say ever to Mr Wood or any other company representative unless you fix that issue there's no workplace agreement?
---No, never. No, no way, no. As I said, the conversation that we had early in the piece was off the record and it wasn't minuted or anything. It was just off the record. I think there might have been a minute in the earlier minutes that says that we asked about the union meeting. It was only an inquiry to see whether we could still have union meetings on the site because I wasn't sure whether we could have them on the site or not.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN680

THE VICE PRESIDENT: Mr Small, have you heard the expression or term blocker used to describe an issue where there's not yet agreement that's holding up a concluding and final agreement?---I know a few of the people at work have said it to Mr Wood that they think that the company is waiting for 24 November to come around so they can just do what they want to, to scare us into submission.

PN681

Mr Wood used I think the word blocker in his evidence to describe those issues that were contentious and that were holding up blocking, reaching a final agreement?---No.

PN682

There are still some issues between the union and the company, aren't there, like pay for example?---Yes. There's a big one with pay and there's a big one with bonus. There's quite a number of ones there, long service leave.

PN683

So those outstanding issues at the moment, if you just turn your mind to that, I'm going to show you page 122 of exhibit B, do you see there's a list at the top of the page?---Yes.

PN684

Of items?---Yes.

PN685

Are the outstanding issues that have yet to be - or agreement is yet to be reached contained within that list or do they extend beyond it?---No, that would just about cover all.

PN686

You can't think of any that are beyond that list?---No, not really. These are the ones that have come out of the meetings that we've had last week, that's all the ones that's come out, every shift. We took the mains out that everyone said and they were the ones that were the predominant ones that come out on every shift that was had.

PN687

Okay. Could I have that back, please? Thank you. Yes, Mr Bukarica.

PN688

MR BUKARICA: So going back to the April, May period, Mr Small, were you in any doubt as to the company's attitude to so called prohibited content?---No, I think it was a lot of unsure, uncertainty from both sides. As I said, it was just a feeling out process to the start with was we both didn't know and I know Murray was getting advice. He'd be ringing up and getting advice and that sort of stuff and we'd be the same. On a couple of meetings we had to go away and bring our advice what we got and they'd bring their advice back to see if they both marries in together.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN689

I guess what I was really intending asking, Mr Small, and I'll ask you directly, were you under the impression from - well, tell me whether you were under the impression that the company would not entertain common law deeds or agreements?---From the first time we asked. That was probably the first or second meeting when we asked for one and he said, no, it won't happen here, and we said all right, if it won't happen, it won't happen.

PN690

Did you persist with claims in subsequent meetings for a common law deed or a side agreement?---Probably off the record a couple of meetings after I might have said it again but it was never ever used as a bargaining chip, as a bargaining tool to say we're going to further our claims on pay rate or bonus or anything like that.

PN691

Can you put a rough time frame when those off the record comments would have occurred?---Probably April. I know our first meeting was late March and we had a few in April so it would have been probably April some time.

PN692

And is that the last time you raised the issue of common law deeds or side agreements?---Yes.

PN693

To the best of your knowledge did any other lodge official or district official raise that issue, that is common law deeds or agreements with the employer subsequent to that date?---No, not to my recollection, no.

PN694

Now, you refer to a meeting which Mr Lewis attended?---Yes.

PN695

And what's your understanding of Mr Lewis' position there?---I think he's managing director of Ulan number 2, Baal Bone, Beltana, United, I think he's looking after the four of those mines, and I don't know, he might be over at West Wallsend, I'm not sure.

PN696

And who does he work for?---He works for Xstrata.

PN697

And do you understand what relationship Mr Lewis has to, for example, Mr Wood?---I think it's his boss. Well, I don't think he is, he's his boss.

PN698

Can you explain your understanding of why Mr Lewis was in attendance at an enterprise agreement negotiation at that meeting at Winning Post?---Yes. Well, there was an hourly rate that was being chucked around and we were saying we wanted $25, and we needed to know whether we could, and he said he was quite prepared to come to a meeting and address us. And I rang Wayne and Wayne said, well, that's good, we can work it out when we can both be there, and we arranged it through the district with Glen to come there to - what's our opinion about whether it was out of our reach for the $25 an hour. And he left that meeting by saying no, we wouldn't obtain that $25.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN699

Is that the same meeting where you raised the issue of payroll deductions?---I think it was raised by Wayne McAndrew, but I just - I elaborated on it by the bloke, the boy that got hurt. We wanted to look how could we - in the future how could we look after paying that, and he said that he'd go away and have a think about it. And he come back on - Mr Wood come back on the 29th and said that he'd have a document out, have a policy.

PN700

On 29 September do you recall raising the issue of payroll deductions at the meeting yourself?---No.

PN701

Do you recall any other union representative raising an issue of payroll deductions?---No.

PN702

What was the context of Mr - I should ask, who made the report about company policy et cetera in relation to payroll deductions on 29 September?---It was Murray Wood did it.

PN703

And what was the context, what was the lead up to that?---It just come from the blue. We were talking about everything in general, it was right near the end of the day, and he said that, by the way we're going to have a policy, a company policy on deductions, and it wasn't mentioned, it wasn't union deductions, it was just deductions overall. Because we were quite concerned because we all pay health fund and all that sort of stuff, and we thought we might have lost that. We had other meetings of the union dues, but we were more worried about the other stuff that we pay, like, I've got accident insurance and that sort of stuff, and how that was going to be paid.

PN704

And did you understand Mr Wood's comments to relate to any prior meetings about the issue, that is, did Mr Wood's comments in your mind relate back to previous meetings where - I'm asking for your impression or understanding at the time where Mr Lewis was in attendance?---Mr Lewis was the one that would have had to made the decision to - for the policy to be there. I know now that Mr Murray Wood stated that any changes to our EA as we call it, he can't change unless Glen Lewis - he gets permission from Glen Lewis to change.

PN705

Now, can I ask you about the process that led up to the initiating bargaining period against Ulan Coal Mines, can you explain to the Commission what were the circumstances which led to a bargaining period being initiated?---After the meeting with Glen Lewis we said there was no way we were going to get the pay rate we were after, and we sought then to implement it or try to put the process in place, because as I said, it was all new, it's changed to what it was three years ago.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN706

And was it the position that the union was seeking to exercise some pressure et cetera in relation to the pay issues, is that - - -?---Well, I think I've stated in there that when I was asked, we have not put the protected action in yet because the talks were going along fine, and then we did put it in I said it doesn't mean we're going to use it, that's what was stated to Mr Wood, Murray Wood.

PN707

And do you recall when that conversation occurred?---It was on - up until the 10th, up until Tuesday.

PN708

And are you referring to the bargaining period or to the protected action?---The first one I handed it to Murray, Murray Wood on 22 September, it was on a Friday, and I said, you know, it doesn't necessarily mean it's going to happen. And then we went through the process of doing it, and then we had a meeting on the Tuesday, and Murray did indicate that he had it at the start of the meeting, and then when Mr Reynolds arrived they went outside. He come back in, he said, so are you implementing the protected action? And I said, well, we're going through the process. And then the phone calls kept coming and going and to and fro.

PN709

And that's the meeting that was held this Tuesday is it, Mr Wood?---Yes.

PN710

Sorry, Mr Small?---Yes.

PN711

I wonder if the witness might be shown a document. Mr Small, have you seen that document before?---Yes, I have.

PN712

What does it appear to be to you?---That was a document that Murray Wood had on Tuesday.

PN713

At the meeting?---At the meeting we had, yes, on Tuesday.

PN714

And is that document the application by the CFMEU to seek a protected action ballot?---Yes, it is.

PN715

And did Mr Wood refer to that on the meeting of 10 October?---Yes. He held it up and he said is this - these are all the conditions that you're going for. And I said, where's this leading? I didn't know what he meant at the time because I couldn't see it, and I looked at it and I said, yes, that was the one we gave you on the 22nd. There was two parts to it.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN716

Mr Small, just for the sake of the record, are you referring there to the bargaining period?---Yes, the first one on the 22nd.

PN717

And that's attached to the protected action ballot application. Now, did you discuss anything else about that document at that meeting on 10 October?---All that was said was trying to ask were we coming, would we be in attendance? And I said no, there was no need for us to be here. And Murray said that he would be going down. The general conversation was, are you flying, driving, or how are you going? And he said he was going to drive down but he was waiting to see what John Wahl was doing and he was waiting for him at the Winning Post that afternoon. I think they come down the next day. I think they drove down the next day. That's all it was. It wasn't - - -

PN718

And was the question of the industrial action proposed in the application discussed?---No.

PN719

Did he raise those issues? Did you?---No.

PN720

I might just show the witness one final - one document, your Honour. Your Honour, I'm showing the witness a document which appears in the bundle. Can you just read out loud the date on that document, Mr Small, if you wouldn't mind?---Tuesday, 19 September 2006.

PN721

THE VICE PRESIDENT: 112.

PN722

MR BUKARICA: 112, thank you, your Honour.

PN723

Now, Mr Small, do you see - well, firstly can I ask you, do you have any recollection of this meeting?---Yes. It was the one when Mr Lewis was in attendance.

PN724

And do you see there on that page 112 above the Glen Lewis notation there's some comments attributed to you?---That's the issue of the contractors.

PN725

Well, just a general - can you just look at that paragraph and satisfy yourself that you made those comments or comments to that effect?---Yes, that's true, I did say that.

PN726

Can you explain what you meant by the issue of the contractors is gone but we still need to finalise the public holiday issue?---Well, from the day that Glen arrived, or Murray arrived and said this one here we've got now is the most restrictive in the group. And I made the comment on several times that, well, people above you would have okayed it for us to get the pay rate that we got for that agreement, and I was just outlining contractors was a restriction of trade, as they tell us. We tell them how to run the business of contractors. They're saying - I said, well, that's our issue now. There's not an issue any more for contractors, you've got that, that's one issue that's sorted.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN727

What do you mean by you've got that, the issue had sorted?---Because it's prohibited and we can't have any control over contractors on site like we had in this part of the agreement.

PN728

And so you were expressing a belief there that it was a contractors issue, it's prohibited, it's not an issue that can be pursued in the negotiations?---That's right, yes.

PN729

Finally, Mr Small, the meeting held on 10 October, this Tuesday, do you recall how long the meeting went?---It started at - it was supposed to start at 12. We got there at 12, Murray was already there. Mick come at 12, we were all there, the three of us. The other vice president was away. Murray Wood asked if we had lunch. There was no lunch supplied so he rang up and ordered some lunch, and the meeting would have started at probably 12.30, and we finished at about probably 10 to four.

PN730

And do you recall during that meeting making claims on the company which you later withdrew in the course of the meeting?---No.

PN731

Did you make any ambit claims that you believed the company would not agree to?---No.

PN732

Did you, to use a colloquialism, Mr Small, move the goal posts in any way?---No. That's - the 12 items were the ones that we discussed on that day, and that's what we discussed. We went through them one - - -

PN733

One at a time?---Yes, one at a time.

PN734

And do you believe there was progress made in that meeting or not?---Well, we probably won't know till tomorrow because we're going to get a report back on the things that we've asked to look at. There's some things we were looking at and some things that's been, no, can't move there. And we've got a meeting tomorrow at 11 o'clock.

PN735

Mr Small, do you remain willing to enter into an agreement with the company?
---Yes.

PN736

Do you remain willing to enter into an agreement with the company which excludes any, what you understand to be prohibited content?---Yes.

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN737

Nothing further, if the Commission pleases.

PN738

THE VICE PRESIDENT: Is it the case that the basis upon which you're negotiating now is that you can't have prohibited content in a Workplace Agreement and you can't enter into some common law deed or side agreement which deals with prohibited content conditional, or rather a condition of agreeing to the primary Workplace Agreements. Mr Small, looking at this document which has been marked exhibit C, do you recognise it?---Yes, I do.

PN739

Do you agree it's a document that you gave to Mr Wood during a meeting?---Yes. I just slipped it over to him, I said can you have a look at this, I said it's not worded right. I said there's some things in there that we need to take out there. I said, well, we're looking for some sort of thing to put in there for representation, that if we need to go off for training and that sort of stuff, that's all it was.

PN740

And what's the status of that issue today?---I'm not sure, I haven't really looked at the current EA. I've been flat out with it. I don't know whether it's in there now or not, but Murray was looking at doing something for our - for the representatives to have leave without pay to attend training, if we needed to go to training and lodge officers conferences. And we have at our place, we have a national official there who is a central councillor, so he'll need work - he'll need time off work to go to his duties without pay. We weren't chasing any payment or anything. We just wanted permission to attend the meetings.

PN741

What's your understanding of whether or not that's prohibited content?---I think if we don't ask for payment I thought it was all right if it was agreed to with the company.

PN742

And if you were told that that was prohibited content what would your attitude be to it?---Well, I'd probably - I would ring Wayne and make sure that was right first, because I don't actually believe everything the company tells me.

PN743

And from your investigations, Mr Bukarica or Mr McAndrews told you it was prohibited content, what would your attitude be?---Well, I take advice from those two blokes. No way in the world would I go anywhere near it.

PN744

Thank you. Can you return that thanks. Anything arising, Mr Bukarica, from that?

**** WAYNE LESLEY SMALL XN MR BUKARICA
PN745

MR BUKARICA: No.

PN746

THE VICE PRESIDENT: Mr Lloyd?

<CROSS-EXAMINATION BY MR LLOYD [2.12PM]

PN747

MR LLOYD: Mr Small, do you have with you the notice to initiate a bargaining period document?---No.

PN748

You don't have that?---No.

PN749

I thought that was provided to you. Well, I'll provide a copy of that notice to the witness. Sir, on the second and third page there's a long list of notes, your dot points?---Yes.

PN750

And I think your evidence earlier was these are the matters the union's seeking be dealt with in the new Workplace Agreement?---Yes, correct.

PN751

These are the matters you're seeking?---Yes. That's what I said that day, yes.

PN752

Well, your evidence today, are these the matters the union is seeking?---Yes.

PN753

Can I ask you to go to the third page. I just want to ask you about some of the matters. About a quarter of the way down the page is a dot point, reduction or increase in hands?---Yes.

PN754

What's the union seeking in relation to that matter?---To have it put in the document, where if we get retrenched - there was a lot of discussion on it, and we keep saying that our pit's pretty viable and it will probably never happen in the lifetime of the three year agreement that we've got, and the lot of emphasis that was put on it I thought was all a waste of time.

PN755

So you're wanting, if I can call it a traditional reduction or increase in hands, as it's often been in - - -

PN756

MR BUKARICA: I object to that.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN757

THE VICE PRESIDENT: Yes, Mr Lloyd, I have real concerns about the fairness of this approach in cross-examination. The evidence of Mr Wood is, and no doubt Mr Small, Mr Wood tells us that after a 19th version of a draft agreement. Does that accord more or less with your recollection?---I don't know about 19. The workforce has only seen the one and that was the other day, it was on Monday, it's the only one the workforce has seen. So I don't know where the 19 has come from. We've cut and pasted a bit.

PN758

Well, yes, that's right. People may only change a tiny amount in a long document and still call it a new iteration. But you've had a working draft for some weeks or months now?---We had a company issue one at the start, yes, probably the first, about the first month into the EA discussions.

PN759

And you produced a draft as well?---Yes, of course we would, because the one that - - -

PN760

And there's been a counter one to that from the company, and a revised company draft after that?---Yes, there's another one, yes. And the one that now has gone out to the men to have a look at.

PN761

And in terms of the things that are being claimed, the present draft agreement reflects a lot of things that you've claimed and you're satisfied with the company's response. And then there are areas of dispute which remain which are encompassed by those 10 items?---Yes, correct.

PN762

So isn't the position, Mr Lloyd, that the ship has moved on from the time that the bargaining period was filed, or rather the notice initiating bargaining period was served?

PN763

MR LLOYD: There's a document out there, that's true, however on
19 September the union was initiating a bargaining period, that bargaining period has come into force, it seeks various things as set out in this document. It's not a case whether the union is bound by the contents of the document in draft form.

PN764

THE VICE PRESIDENT: Your objection, Mr Bukarica, was something else I imagine.

PN765

MR BUKARICA: The nature of objection was, your Honour, the relevance in cross-examination. The position was that - as I understood the evidence, was that Mr Wood held up this document in a meeting and said is that what you're claiming, or words to that effect, and Mr Small said yes. That's the extent of his evidence. Now, there's been further evidence about what occurred on 10 October in terms of the items that were discussed, and I just think that the matters raised by Mr Lloyd are relevant and assist the Commission in the matter it has to determine.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN766

THE VICE PRESIDENT: I'll allow the question.

PN767

MR LLOYD: In relation to reduction or increase in hands, you're seeking a traditional clause that's often been in coal awards?---Mostly - sorry, I've got to get that.

PN768

THE VICE PRESIDENT: Cross-examination.

PN769

MR BUKARICA: Sorry.

PN770

THE VICE PRESIDENT: It's just a brain snap, it happens to us all occasionally.

PN771

MR LLOYD: Sir, there's currently a reduction or increase in hands clause in the certified agreement at Ulan Coal Mine?---There's a reduction and retrenchment clause in the current one. The current one, not the one the men have got in their hand now, the one we were under now since 2003, that's the one you're talking about?

PN772

Yes. And by increase in hands you mean should Ulan need to hire a new employee in the future they will get preference to employees who have been retrenched from Ulan?---Not in the current one. The one that we have out there now, yes. We negotiated that with Neville McEllery in 2003. The new one doesn't state that. The new one doesn't say that at all because Murray Wood wouldn't entertain that one.

PN773

Sir, this document sets out what the union's claiming as part of the bargaining period, does it not?---Yes.

PN774

THE VICE PRESIDENT: It actually sets out topics rather than claims.

PN775

MR LLOYD: Well, that's what I was putting to the witness, the nature of the claim.

PN776

Sir, what are you seeking in relation to increase in hands?---There's a document out there now and we - whatever's in there at the present time is okay. We're not chasing anything for reductions of hands but what's in the agreement, because we don't believe that we're going to use it. If we go down the gurgler, I tell you what, there will be a lot of coal mines around New South Wales will be shut.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN777

Sir, increase in hands, what do you seek in that regard?---No. Well, the increase in hands is the one I'm talking about.

PN778

So are you seeking an increase in hands clause?---No. But we have a clause in there for retrenchment which we've been asked to put in there. It's part of the - we've got guidelines as well that we need to cover our things, because if we don't - at the current time the award is still there and whatever is signed in the 2003 agreement goes back, refers back to the award. Now, we've been told that all - from now on whatever's in the agreement is in the agreement.

PN779

Sir, can I ask you to distinguish between reduction in hands and increase in hands?---Reduction in hands is retrenchments. People get retrenched on seniority.

PN780

And I'm asking you are you seeking anything in relation to increase in hands?
---There is in the agreement as we speak, and it's not that we're going to pick the people on merit to come back, and it wasn't a big issue.

PN781

Sir, can I ask you about the next one, union delegates, lodge officers, what are you seeking in that matter?---We are seeking permission without pay to attend lodge officers conference and union - I can't say union - training, and we have a convention that's held every four years, or three or four years, we want permission to go to that and, as I said, we also have a central councillor at our mine, he's a national official and he goes to central council meetings and also goes to board meetings.

PN782

Okay. So lodge officers can attend other union meetings not on site?---That's correct, we have them. Wayne McAndrew is our district president and he calls them at Penrith. We generally have them at Penrith so the people from Wollongong can attend.

PN783

And you also said trade union training that the delegates or lodge officials would be able to go to?---If there's a clause put on, yes, we would like to release - because we have new people that come into the role and they need to know what they can and what they can't negotiate.

PN784

And is that a claim you still maintain?

PN785

MR BUKARICA: Excuse me, your Honour. The position is I don't - I think I understand Mr Small's evidence to concede that ..... trade union training, and I think the question should be rephrased.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN786

THE VICE PRESIDENT: He specifically modified his answer. I think he was starting to say trade union training. He may have even said that - on the transcript I shouldn't say trade union, shouldn't say union. But the draft in exhibit C is obviously an attempt to sail as close to the wind as one can do, and there's no criticism in that, by emphasising that training in B15.1 won't be provided by the union but by some other provider. I think you need to get his agreement to the proposition that he's seeking training by the trade unions specifically, Mr Lloyd, before you move on.

PN787

MR LLOYD: Sir, in relation to training are you seeking union delegates or lodge officials are able to undertake training, organised or conducted by a trade union?
---No. We're asking for seminars so we can attend seminars, that's what we're asking for. We know that's prohibited so I'm not going to ask for that.

PN788

You said unpaid?---Yes, unpaid.

PN789

Are you still seeking payment of weekly bonus or non adjustment of bonus when you go to social meetings?---Well, our bonus pool is going to be a pool, and you're in the pool at all times, so I would expect I would still be in the bonus pool when I did attend these meetings off site, yes.

PN790

So when you say unpaid you mean not paid for your daily wage for that day but still entitled to bonuses?---That's correct.

PN791

Sir, a few more down, noticeboards. What are you seeking in that regard?
---That's a good question.

PN792

You don't know what the union is seeking in that regard?---No.

PN793

Is it a reference to a union noticeboard?---No, we don't have union noticeboards. We have a bonus board and we have a company board and we have a - there's one in our bathhouse where people put up for things that they've got for sale and that sort of stuff, but no, there's no such thing as a union noticeboard.

PN794

But you're not sure what it's seeking?---No, I'm not.

PN795

Further down, halfway down the page, training and education, what is being sought there?---Training and education is what I said a while ago about attending seminars.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN796

So which employees to attend the training?---Well, it would be lodge officers.

PN797

So it's just training for lodge officers?---Yes.

PN798

And what sort of training?---Attend seminars to know what, or see what's happening around other mines I suppose, and know what's happening within the industry, get a feedback of what's happening in other mines and that sort of stuff.

PN799

Who conducts that training?---We haven't really had any at the present time. I haven't had any. I've been a delegate for, I think at Ulan for about 12 years and I've never attended one yet.

PN800

Sir, might that training be conducted by the union?

PN801

THE VICE PRESIDENT: Mr Small, can you just step outside for a minute. I want to raise something with Mr Lloyd, but I don't want to coach you as it were, in sitting in the witness box. Thanks. Someone will grab you in a sec, Mr Small.

<THE WITNESS WITHDREW [2.25PM]

PN802

THE VICE PRESIDENT: Mr Lloyd, I don't want to shut you off from pursuing this line of questioning if you want to, because you may want to lay the groundwork to deal with it in another place in any event, the best way the order should issue. But isn't the reality that this is not a list of claims, it's a list of matters that should be dealt with in the proposed agreement as distinct from claims, and it is a shopping list, a stock standard list that no doubt sits on the word processor of the CFMEU and doesn't reflect some considered list of topics tailored to the Ulan Coal Mine.

PN803

And the practical reality of claims being made and pursued is to be found not in this shopping list, but in the draft agreements that have been passed between the parties as supplemented by the oral evidence of Mr Wood and this witness about things that have been specifically claimed in meetings. If that's correct I don't think I'm going to be assisted by a whole lot of cross-examination directed at what this witness thinks he's claiming in relation to each of these topics. Now, having said that, it's a matter for you. If you want to press on with it I'm not going to stop you, but I just don't think it assists for that reason that I've tried to articulate.

PN804

MR LLOYD: I hear what your Honour is saying. I can indicate I don't anticipate my cross-examination of this witness will be particularly long, including in relation to this document. There are matters I wish to - - -

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN805

THE VICE PRESIDENT: Let me make it clear. I'm not stopping you, but for the reasons I've articulated I'm inviting you to cut your cloth differently, but if you choose not to that's fine, I won't be offended in the slightest. This is still a new area and the jurisprudence is still evolving, and it may well be that your client will want to contest any adverse outcome that might arise after the submissions have been made and the decision has been made. Let's have the witness in again.

<WAYNE SMALL, ON FORMER OATH [2.27PM]
<CROSS-EXAMINATION BY MR LLOYD, CONTINUING

PN806

MR LLOYD: Sir, I asked you a moment ago about noticeboards. Isn't it the case that at the Ulan Mine there is a noticeboard that only has union information placed on it?---Currently under our agreement we have now, yes, we put it up there for when we have union meetings. I write on it. It's only near the - that's in the bathhouse.

PN807

So that board is used for union information?---Only for meetings, yes.

PN808

And you wish to ensure that that remains the case don't you, that you have access to a noticeboard?---Probably not, because I don't think we'll have our union - when we do have union meetings I don't think we'll be having them on site.

PN809

So you're not concerned if you don't have a noticeboard?---No, not at all. I'm more concerned about a good pay rate.

PN810

I asked you - you were answering some questions about delegates or lodge officials going to undertake training, and I think I asked you could training be conducted by the union?---Well, I suppose it could be.

PN811

The next one down you have unpaid leave to attend union meetings. What do you envisage by that matter?---What happens now is we don't get paid currently. We go to Lithgow where our district president, vice president, or two vice presidents and secretary are there, and we have information of what's happening around the mines in our district, our south western district. That's the lodge officers conference.

PN812

And you desire there be unpaid leave?---Yes, that's what it is now.

PN813

But without reduction of bonus?---That's correct. Well, hopefully it will be a pool bonus.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN814

A bit further down there's a reference to parity of wages. What's that matter relate to?---Well, I've got to say I didn't put this together and I don't know.

PN815

So you don't know, okay. Further down, three from the bottom, dispute settlement procedure?---Yes.

PN816

Can I ask what are you seeking in that regard?---Well, what we're trying to seek in an agreement, where we're probably a little bit apart on again, is a word called will and shall, or will and may. We've got a dispute procedure in the current document and we want, if there's a problem there - not the current one, the one we're negotiating. If there's a problem there we want someone to say yes or no instead of having it hang on for six months. So if it says you will go for arbitration, well, we will go to arbitration. We don't want something that says you may go, because that's watery to me.

PN817

What role do you see for the union as part of the dispute settlement procedure?
---Well, they're representatives of the workforce, and that worker, if there's a problem, can ask us to be his representative. He doesn't necessarily have to go there, he can ask anybody.

PN818

You've given evidence of education or seminars you've been to in relation to what are prohibited matters haven't you? You understand what prohibited matters are?
---Yes. Well, I think I do to my knowledge. I'm not up to speed. As I said, I'm not full time at this, I do work at the coal mine as well and I don't know what all the rules are. I try to.

PN819

And it would be fair to say that some of the certified agreement, that is the certified agreement that's still in force?---Yes.

PN820

Some of the provisions of that that were made in 2003 would be prohibited content?---Definitely.

PN821

And you know they can't be included in a new Workplace Agreement?---I know that.

PN822

But those that are prohibited, you desire that they still be binding on the company, don't you?---No, not at all. No word of contractors in any of the talks we've had, that's prohibited.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN823

So the things that are prohibited in the current agreement, you're not seeking that they be binding on the company at all?---How could I be when I'd risk getting fined $33,000? I'm only a coal miner, I'm not that rich, I can't pay that kind of money.

PN824

Well, in the enterprise bargaining negotiations the union has raised whether prohibited matters could be included in a common law deed haven't they?---I don't believe it was in those words. We did ask unofficially on a non prejudice basis about deductions, and in the early stages we asked about whether it was allowable for us to hold union meetings on site out of work time.

PN825

Now, you've raised payroll deductions and, sir, you've sought that payroll deduction for union dues?---No, not necessarily. I didn't - it was never, ever said that way, for union dues. It was said for the things, the charitable things. And I made a statement which I probably shouldn't have. I said that I pay money into Helicopter, the two child flight ones, and I said if that doesn't come out of my pay I'll be writing them a letter and letting them know you're that bad a company, you won't take that out of my pay for them people to get that money, that's what I did say. And that wasn't in - it never got documented, it was just off the cuff talk.

PN826

The union has raised having paid union meetings on site in the enterprise bargaining discussions haven't you?---No.

PN827

That hasn't been raised at all?---Not in discussions, no.

PN828

So if there's a reference to that in the minutes - - -?---There was a talk off the record and I did say to Mick, Mr Reynolds, that this is off the record, and I asked the question back in the early days whether we could have them or whether we couldn't, and whether they would pay for them in our own time.

PN829

So you agree you raised matters off the record from time to time?---Yes, I'll say that.

PN830

And you regard them as therefore not raised?---Well, I'll never do it again, put it that, it will never happen ever again after today.

PN831

So if there's a reference in the minutes to the union raising paid union meetings on site, are you saying the minutes are in error?---No. I think that you'll find that - I've read the minutes myself, I've got them at home, and I think in the early stages we might have asked that, yes. That's when we got more advice to say that it was definitely prohibited.

**** WAYNE LESLEY SMALL XXN MR LLOYD
PN832

The union has also raised paid attendance for delegates for off site union business in the meetings haven't they?---No. That bit of paper that I give Murray, that was a bit of tongue in cheek.

PN833

Can I show the witness exhibit B. So it's a component of bonus which is not attached to attendance at work, is that correct?---That's correct, yes.

PN834

Nothing further, your Honour.

PN835

THE VICE PRESIDENT: Thank you, Mr Small.

<THE WITNESS WITHDREW [2.45PM]

PN836

THE VICE PRESIDENT: It's a matter for you but I don't know that I'll be assisted by hearing any further from your - - -

PN837

MR BUKARICA: No, I wasn't intending on calling any witnesses.

PN838

THE VICE PRESIDENT: No, thank you. Mr Lloyd, my opinion is that the requirements of the Act are made out. I don't - as a tension between the evidence of Mr Reynolds and Mr Wood. I prefer Mr Wood's evidence. Mr Wood struck me as a very careful, intelligent, capable individual and it beggars belief that he would have given the evidence that he did if what Mr Reynolds said was accurate. On that assumption, and you can seek to persuade me to a contrary view if you wish, but on the assumption that Mr Wood's evidence is preferred to Mr Reynolds' evidence to the extent that they conflict, isn't Mr Wood's evidence conclusive at the end for the day that whatever may have been the position early in the piece, clearly the evidence that there were claims advanced of prohibited content early in the piece.

PN839

By the time the bargaining period was initiated there was no further pressing of claims or demands for prohibited content and that the matters that remained in dispute between the parties are the matters that are summarised by the 12 bullet points at page 122 of exhibit B, and none of those are prohibited content. So that at the end of the day it has to be concluded that the union has genuinely tried to reach the workplace agreement.

PN840

MR LLOYD: Well, your Honour, I don't wish to put anything in relation to what your Honour has said as to whom your Honour is preferring in relation to acceptance of witness evidence.

PN841

THE VICE PRESIDENT: Yes.

PN842

MR LLOYD: The response I'd make to your Honour is, there was evidence of Mr Wood in relation to the 29th. Mr Wood has given evidence in relation to 19 September, 21, 22 September and 29 September and the raising of payroll deductions and leave for union business - - -

PN843

THE VICE PRESIDENT: The mere raising of those issues, though, doesn't translate them into a claim or a demand, does it, let alone a claim or a demand the acceptance of which is a condition of reaching a workplace agreement. You see, the statutory test is not whether or not prohibited content has been claimed or demanded. The statutory test is whether or not the union is genuinely trying to reach agreement. It's been held, no doubt correctly, that where a union is pressing claims for prohibited content and doing so in a knowing fashion, at least, or in respect of matters where no reasonable person can have any view other than it's prohibited content, deduction of union dues is the classic example, that that allows a conclusion to be drawn that the union is not genuinely trying to reach agreement within the meaning of the Act because those things can't be included in the agreement.

PN844

But the mere fact that these issues are raised doesn't translate, does it, into the conclusion that the union has made compliance with demands for prohibited content a condition of reaching agreement?

PN845

MR LLOYD: Well, two matters I'd say in response. Firstly, that what has happened on those dates in September and one of those, the 29th, I think, is the first day of the commencement of the bargaining period if one goes from seven days after the date of the service - okay. Well, if it's the day after clearly the events on the 29th are during the bargaining period.

PN846

MR BUKARICA: No, read the Act.

PN847

MR LLOYD: My friend I think has a slightly pedantic construction, but - - -

PN848

MR BUKARICA: Perish the thought.

PN849

MR LLOYD: We'd submit the events in September and also the events in October, but that is subject to a finding your Honour necessarily has to make as to what evidence is preferred, has to be seen in the context of the months that have preceded it. Our facts here are different to, I think, most of the other cases where all of the bargaining has occurred or most of the bargaining has occurred during the bargaining period. Here we've had months of negotiations, then the bargaining period is initiated for the purposes of - - -

PN850

THE VICE PRESIDENT: Yes, and by the time it's been initiated the issues have shaken themselves out from where there is no claim of demand being advanced during the bargaining period in respect of prohibited content on the admission of Mr Wood and the blockers, the things that are still to be resolved, are clearly reaching agreement contained within the items on page 122 which is prohibited content.

PN851

MR LLOYD: Well, we'd say the claims that have been made prior to the bargaining period occurring, they are raised again in circumstances where they haven't been abandoned and they are still part of the agenda of the union. We needed - - -

PN852

THE VICE PRESIDENT: They haven't been abandoned in an express sense, and no doubt one of the things that Mr Small will take away from this particular matter is that there was expressly abandoned claims for prohibited content in the future. But they were abandoned as a matter of fact on the evidence, I'm afraid. I mean, on the evidence of Mr Wood.

PN853

MR LLOYD: No, I don't accept that as a conclusion. We say that they haven't been abandoned. They needed to be abandoned. They needed to be abandoned expressly and if they had been abandoned, well, the situation would not have arisen, but they are still there and they are still being raised. What is being sought is - - -

PN854

THE VICE PRESIDENT: What do you say about Mr Woods? I have to say there are recriminations as far as Mr Wood is concerned, because he's clearly an exceptionally competent manager, I think he has given careful and truthful evidence. I mean, at the end of the day he acknowledged in cross-examination by Mr Bukarica that from his perspective as a negotiator for the company, there was no claim or demand being advanced in the post bargaining period meetings for prohibited content.

PN855

MR LLOYD: Well, your Honour, I accept that that's a conclusion that can be reached on the evidence.

PN856

THE VICE PRESIDENT: No, but wasn't that the effect of his admission, in fact in terms? There was a whole series of no's, no, no, no, because Mr Bukarica put each of the - - -

PN857

MR LLOYD: I didn't recall it as strong as that. It's ultimately a question of what the record shows. I took away that the issues were still being raised. They clearly had not been agreed to by the company, but it's the pursuit of them during the bargaining period in the context of the history that has gone by that we would say it required an expressed abandonment. The second point I wanted to make in response to your Honour's earlier comments, and I was a little troubled by your Honour's link between the deed being - sorry - the workplace agreement being conditional on the deed and I would suggest on the Full Bench authority that my friend refers to in his helpful submissions I think on the last page, the - - -

PN858

THE VICE PRESIDENT: The UFU?

PN859

MR LLOYD: Firstly, the Blue Circle case of Vice President Watson and then the CFA decision - excuse me, your Honour, I'll just find the relevant page - and the points extracted in my friend's submission in paragraphs 36 and 37. That is, it's the seeking of prohibited content at the same time as seeking a workplace agreement, whether the prohibited content forms part of the proposed agreement or otherwise, strongly suggests the union is not genuinely trying to reach a workplace agreement. That's in the Full Bench decision. I think his Honour the Vice President might be - agreement might be reached is a little bit stronger in the Blue Circle Transport case in that regard, but it's the pursuit of them at the same time, not the linking, we would submit.

PN860

This is clearly on the evidence not a case where that linking has been made. That is - - -

PN861

THE VICE PRESIDENT: But the link is critical, isn't it, because the whole point is the protected action, or the purported protected action is authorised by the Parliament in furtherance of seeking a workplace agreement. It's not authorised by the Parliament in furtherance of seeking prohibited content, and the link becomes critical because what has to be avoided and what's bound up in not genuinely seeking a workplace agreement is the possibility that protected action is going to be used as a lever in respect of prohibited content. I appreciate that there are - - -

PN862

MR LLOYD: I agree with that in relation to the earlier decisions, but not when one looks at the CFA case that doesn't effectively require that linking. I think the earlier cases including your Honour's own decisions, I think clearly had that link, certainly the Cadbury Schweppes case, but the CFA case I would submit goes further in that it's the pursuit of - - -

PN863

THE VICE PRESIDENT: I have to say I didn't read the CFA case as being consistent with that link being important. I mean, of course the problem is it's one thing to hypothesise the theory. It's another thing to deal with the practical reality as well. You can't allow the link to be used as some sort of device behind which a miscreant union can hide because it's very easy for the union to say, well, sure, we weren't in any way linking the two together. I mean, one has to be practical about drawing the link. In an appropriate case it's something that the link would be inferred, I would have thought, relatively readily. I've got great difficulty in inferring the link here precisely because of the admissions of Mr Wood on my recollection of his evidence.

PN864

MR LLOYD: I'm not submitting that the link can be established on the evidence and I'm submitting the case - - -

PN865

THE VICE PRESIDENT: Your submission is that the case law says - - -

PN866

MR LLOYD: The case law does not require the - - -

PN867

THE VICE PRESIDENT: The mere contemporaneous pursuit of prohibited content claims means that you cannot be genuinely trying to reach agreement.

PN868

MR LLOYD: Correct, and that we rely on the Full Bench in the CFA case. I have briefly looked at the decision, your Honour, and referred to it early in the proceedings that your Honour was a member of the Full Bench on and I didn't see anything that was inconsistent with that proposition.

PN869

THE VICE PRESIDENT: Yes, I understand that.

PN870

MR LLOYD: But I skimmed the decision recently reasonably quickly. If that assists, your Honour, those are the points I make in response to your Honour's question and your Honour's question I think tease out the real issues in this case.

PN871

THE VICE PRESIDENT: Yes. I don't think I need to hear from you, Mr Bukarica, do I? I'm satisfied that the requirements of the Act have been made out and will issue. The reasons I think will be evident from the exchanges that occurred in the submissions and I will produce some written reasons in due course Mr Bukarica just in terms of the ordering of my time between now and the weekend. Do you anticipate, or are you in a position to say whether you anticipate having instructions to file an appeal such that you need reasons very urgently?

PN872

MR BUKARICA: I would have to take instructions on the matter, your Honour. I can certainly do that - - -

PN873

THE VICE PRESIDENT: Please, I'm not one of these - I mean, some members get terribly sensitive about having their decisions appealed and I would like to believe I'm not one of them and I recognise that I'm fallible and make mistakes and the parties have a perfect right to challenge decisions. But it will be useful for the Judges here in the State and the bench that appeals with the appeal to have reasons. What I really want to know is whether I need to be burning the midnight oil tonight in order to produce the reasons or whether or not they can await the weekend.

PN874

MR BUKARICA: I can take instructions and let your associate know.

PN875

THE VICE PRESIDENT: I can burn the midnight oil if it's necessary.

PN876

MR BUKARICA: Yes. Your Honour, there were some small technical matters I raised yesterday in relation to the form of orders. I don't know, I may be able to assist in relation to that.

PN877

THE VICE PRESIDENT: Yes.

PN878

MR BUKARICA: The first related to where the ballot should occur and we suggested yesterday and I think it was accepted that - - -

PN879

THE VICE PRESIDENT: Yes. Mr Hodder was more than happy to have the - - -

PN880

MR BUKARICA: But it would be the small training room. So this is in paragraph 7.

PN881

THE VICE PRESIDENT: Is it properly described as adjacent to the lamp room or the bath house?

PN882

MR BUKARICA: The small training room. Near the lamp room, yes. The small training room near those areas and the other matter I have suggested is, that there should be an order that requires the union - - -

PN883

THE VICE PRESIDENT: That will happen - - -

PN884

MR BUKARICA: Which is isn't in the current draft.

PN885

THE VICE PRESIDENT: The timetable will be preserved, the location of the voting will be preserved, the question will be preserved, but I've got my own ordinance involving other various bits and pieces, none of which I think will cause any difficulties for the parties. Anything further from you, Mr Lloyd?

PN886

MR LLOYD: No, thank you, your Honour.

PN887

THE VICE PRESIDENT: Thank you, Mr Lloyd. I thank the parties for their assistance and the Commission is adjourned and I will wait to hear from you, Mr Lloyd.

<ADJOURNED INDEFINITELY [3.04PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MURRAY ALAN WOOD, SWORN PN20
EXAMINATION-IN-CHIEF BY MR LLOYD PN20
EXHIBIT #A STATEMENT OF MURRAY WOOD PN32
EXHIBIT #B BOOK OF MINUTES PN39
EXHIBIT #C DOCUMENT SAID TO BE HANDED BY MR SMALL TO MR WOOD PN90
CROSS-EXAMINATION BY MR BUKARICA PN115
RE-EXAMINATION BY MR LLOYD PN378
THE WITNESS WITHDREW PN418
MICHAEL JOHN REYNOLDS, AFFIRMED PN429
EXAMINATION-IN-CHIEF BY MR LLOYD PN429
CROSS-EXAMINATION BY MR BUKARICA PN510
RE-EXAMINATION BY MR LLOYD PN572
THE WITNESS WITHDREW PN579
WAYNE LESLEY SMALL, SWORN PN601
EXAMINATION-IN-CHIEF BY MR BUKARICA PN601
CROSS-EXAMINATION BY MR LLOYD PN746
THE WITNESS WITHDREW PN801
WAYNE SMALL, ON FORMER OATH PN805
CROSS-EXAMINATION BY MR LLOYD, CONTINUING PN805
THE WITNESS WITHDREW PN835