BP2006/3549, Transcript of Proceedings [2006] AIRCTrans 1177 (30 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15934-1

VICE PRESIDENT LAWLER

BP2006/3549

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND THIESS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3549)

SYDNEY

4.27PM, TUESDAY, 17 OCTOBER 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

Reserved for Decision

PN446

THE VICE PRESIDENT: Mr Morris.

PN447

MR MORRIS: Thank you, your Honour. I'd like to call Mr Gerry Jordaan.

PN448

THE VICE PRESIDENT: Thank you, Mr Morris. Please take a seat, Mr Jordaan.

<GERHARDUS ADRIAN JOHANNES JORDAAN, SWORN [11.15AM]
<EXAMINATION-IN-CHIEF BY MR MORRIS

PN449

THE VICE PRESIDENT: Yes, Mr Morris.

PN450

MR MORRIS: Mr Jordaan, you're employed by Thiess Pty Ltd?---That is correct.

PN451

What position do you presently hold?---Operations manager at Mount Owen mine.

PN452

How long have you held that position?---Approximately 18 months.

PN453

And prior to that?---Prior to that, I worked for BHP Billiton for about 30 years.

PN454

As operations manager at Mount Owen, have you been involved throughout the negotiations for a new workplace agreement at Mount Owen?---Yes, I have, correct.

PN455

Do you recall shortly prior to Wednesday, 13 September, having a discussion or a meeting, I should say, with Mr Peter Jordan of the CFMEU?---Yes, I do.

PN456

Do you recall the time and the place of that meeting?---It was the Friday before the 13th. It would have been the 8th, approximately just after lunch, 2 o'clock I think.

PN457

Where did you meet?---In the mining engineering crew holding in Singleton.

PN458

Is that a Thiess office in Singleton?---Yes, that's correct.

PN459

Can you tell his Honour what was the nature of that meeting?---I basically had a discussion with Mr Jordan to give him advance notice of the package proposal that we were going to put to the union based on further discussions that I had with Thiess and Xstrata.

PN460

You mention Xstrata. Is that because Xstrata owns the Mount Owen mine?
---Xstrata owns the Mount Owen mine, but under the terms of the head contract, they have to agree to any agreement that is associated with a certified agreement.

PN461

And Thiess operates the mine, does it, under contract with Xstrata?---Thiess operates the mine, that's correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN462

And are the employees to whom the agreement that you've been negotiating would apply all employees of Thiess?---They are all employees of Thiess.

PN463

Could you tell his Honour what you recall of the course of that discussion, or meeting, I should say, with Mr Jordan?---We discussed in general terms the contents of the package as it would be put forward. There were a number of items. This package was put forward in response to - during the negotiations, immediately prior to that day, we had discussed on an unprejudiced basis I guess a view from the union and a view from ourselves in an attempt to arrive at an agreement and on the basis of that, I had gone to Xstrata and to Thiess to receive a further mandate which I could put to the union and it was to, as I said, discuss the terms of that package proposal that was going to be put to the union. There were particular items in that that needed clarification and that's what we basically discussed.

PN464

Was the matter of paid union meetings discussed between you?---Yes.

PN465

Do you remember what was said by you and by Mr Jordan about that?---In terms of the union meetings, we had prior to that date despite the unprejudiced discussions and before that had a view that we would pay the employees for attendance at the meetings to a maximum of 12 hours per annum. When I took this position back to Xstrata to advance the claim for salaries, one of the items that Xstrata put to me was that they would honour my undertaking to pay, because that was the current practice on the mine, but they would not honour the offer that I made to pay that on the basis of attendance, so that was a difference to what we had previously discussed.

PN466

So did you tell Mr Jordan what it was that you proposed to actually be putting on this question of union meetings?---Yes, I did, and that was that we would add the 12 hours of overtime to the salaries of the employees at the start of the agreement.

PN467

Do you recall what Mr Jordan said, if anything, in relation to what you were saying to him?---Mainly that we had an agreement before and this has now changes, so there's some disappointment that we've gone back on something that seemed to be a common understanding.

PN468

Was the matter of trainees and the source of trainees mentioned by you on 8 September?---I believe it was and that was in the context that I said that Xstrata and Thiess have been arriving at a new package deal and adding money to the basic offer, needed to get offsets and we still wanted to have the eight per annum which was a total of 16 where the union was at 12, but because we couldn't get agreement, the offer or as part of the package, the offer would be - we would then take that off the table and we will go and review our position and decide what we could do as far as trainees are concerned to create an offset for ourself. We would evaluate alternatives and then treat the trainees on that basis.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN469

Was one of the alternatives sourcing trainees through a labour hire firm?---That was a possibility. That was an offer.

PN470

Did you mention that to Mr Jordan?---Yes, I believe I did, if not then, certainly on the 13th.

PN471

Was staff operating gear or equipment a matter that you mentioned on 8 September?---Yes, I believe it was.

PN472

Do you remember what you said?---Up until that particular discussion or putting together of that document, we had discussed putting staff on gear for purposes of testing and relocating. At that meeting, it was again made clear by Mr Jordan that it would only be for relocating gear and I said, well, the basis of the package as we're going forward is that we will remove that from our log of claims and we would also look at alternatives to employ that if possible. I did mention that from a financial point of view, I didn't believe that there was any practicality in doing it.

PN473

Do you remember what Mr Jordan had to say about that issue?---I don't have my notes with me, but it would have been pretty much that we had an agreement or an understanding as far as that's concerned and we don't want you to put staff on gear, very much along the lines of if you take it off the table, it will be viewed with great suspicion because next week you'll have staff on all the gear and there would be pretty much nothing we can do about it.

PN474

And do you recall the length of that meeting on 8 September?---No, that I can't tell you. It was a very informal discussion.

PN475

Now, did you then participate in a meeting with Mr Jordan and lodge officials and other company representatives on 13 September?---Yes, I did.

PN476

Where was that meeting held?---The meeting of 13 September would have been in the Mount Owen conference room.

PN477

I'd like to tender at this stage if I may and it's convenient in a bundle, anticipating, the notes that were - - -

PN478

THE VICE PRESIDENT: Mr Jordan's notes?

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN479

MR MORRIS: Mr Jordan's notes, yes.

PN480

THE VICE PRESIDENT: I have notes of 13 September and 22 September and, Mr Docking, you've got copies of those. Any objection?

PN481

MR DOCKING: It might be clarified if he's able to attribute who said what in them, for example, or if he's just unable to do that.

PN482

THE VICE PRESIDENT: That's a matter for cross-examination and submission on weight, isn't it, rather than - - -

PN483

MR DOCKING: It would be a matter of weight at the end of the day, but I might be a bit old fashioned, I would have thought with the tender that we'd try to clarify that.

PN484

THE VICE PRESIDENT: I have no doubt whatever that Mr Morris is going to clarify that in some detail. Would I be correct in that apprehension, Mr Morris?

PN485

MR MORRIS: Certainly, and I understand your Honour can put aside now, because despite taking an objection yesterday on behalf of the applicant union about Ms Armstrong's notes, she's not being called.

PN486

MR DOCKING: I am sorry, I may have misunderstood, when I asked Mr Morris today was she being called.

PN487

MR MORRIS: I am not proposing to call Ms Armstrong, but I will be asking the Commission to accept the tender and give such weight as may be appropriate, that will be a matter for submissions, to Ms Armstrong's notes.

PN488

MR DOCKING: Well, I object to that.

PN489

THE VICE PRESIDENT: Mr Docking, we'll deal with that when we get to it. At the moment you're faced only with the tender of Mr Jordaan's notes of 13 September and 22 September and I propose to admit them.

EXHIBIT #6 NOTES DATED 13/09/2006
EXHIBIT #7 NOTES DATED 22/09/2006

PN490

MR MORRIS: I am informed by Mr Dearden that there's already an exhibit 5.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN491

THE VICE PRESIDENT: I am sorry, the notes of 13 September will be exhibit 6 and the notes of 22 September will be exhibit 7.

PN492

MR MORRIS: And does your Honour have there Mr Jordaan's notes of 27 September, being one page?

EXHIBIT #8 NOTES DATED 27/09/2006

PN493

MR MORRIS: Thank you.

PN494

Mr Jordaan, do you have those notes with you?---Yes, I have a copy.

PN495

It might be handy, if you've got a pen, if you just write on the 13 September notes, some place where you can see it quickly, exhibit 6 and the 22 September notes exhibit 7 and the 27 September notes exhibit 8. Mr Jordaan, are these notes that you made at the time of the meeting on the 13th?---Yes, that's correct.

PN496

That's exhibit 6?---Yes.

PN497

Can you recall, can you describe to his Honour the course of that meeting on the 13th as you recall it?---The meeting was held to present to the union the package as is described in one of the earlier exhibits that was handed in yesterday. That was discussed with Mr Jordan on Friday, the 8th. That was the purpose. I proceeded to go through all and each of every item of content, about 27 or 28 in all and put the position of the company to the union.

PN498

At the time you were doing that, did you hand a copy of that document to Mr Jordan and the lodge officials?---No, not at the time, but after the meeting.

PN499

So you told his Honour that you went through each of the items?---Yes.

PN500

Go on and describe perhaps the course of that meeting, what happened as you recall it.

PN501

THE VICE PRESIDENT: Unless it's important to get the other issues for some context reason, it doesn't seem to me, there isn't any reason why you shouldn't just proceed straight to the relevant items and ask the witness just - - -

PN502

MR MORRIS: Yes. I was actually wishing to adduce evidence as to the - - -

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN503

THE VICE PRESIDENT: You take your own course, Mr Morris.

PN504

MR MORRIS: The interchange that occurred, yes?---The feedback was given, as I said, per item. There was some request - - -

PN505

I am sorry, you said that you went through I think orally?---Through the different items. During the process of going through that, obviously there were questions as to clarity and following us going through the items at the conclusion of that, myself, Ms Armstrong and Mr Grosvenor left the meeting. Mr Jordan and the lodge officials conferred for a period of time and then after called us back into the meeting room and then gave us their initial comments, if you will, about the package proposal as it was made.

PN506

Can I ask you to look at this copy of what was exhibit 5, if Mr Dearden was to hand you a copy of that? Would you just have a quick look at that. You'll see, for example, it's got some ticks down the left-hand side?---That's correct.

PN507

Can you identify to his Honour when those ticks were given and when any other writing on this copy of the document was made?---My recollection is that as I proceeded through each of the items in explaining to the union the position that was being made as part of this package offer, I ticked each item as we went through.

PN508

THE VICE PRESIDENT: The tick means?---That I've dealt with it.

PN509

It doesn't mean agreement or disagreement?---No, no, it just means that I dealt with it.

PN510

MR MORRIS: I tender this copy, if I may.

PN511

THE VICE PRESIDENT: Mr Docking?

PN512

MR DOCKING: No objection.

EXHIBIT #9 COMPANY POSITION DOCUMENT WITH TICKS

PN513

MR MORRIS: Could you go to the third page down the bottom under the heading use of casuals and then the column of details, there's written:

PN514

Exchange of letters - Marcus.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN515

?---Yes.

PN516

Do you recall when you made that entry?---It would have been at that particular time.

PN517

And can you explain the meaning of those words, exchange of letters?---My memory of it purely that Mr Jordan raised the issue that there had been some discussions with Mr Carrol or Mr Carrol had made an offer or there had been a request of Mr Carrol that we provide a letter or a document that indicated or detailed clearly the conditions and so on under which we would employ labour hire casuals in terms of salary and conditions and so on.

PN518

Now, Mr Carrol was then the employee relations manager or had been the employee relations manager for Thiess in New South Wales?---In New South Wales.

PN519

For some years?---I don't know. I think a couple of years.

PN520

But he's since moved to another role within Thiess in Queensland?---That's correct.

PN521

Now, after you and Ms Armstrong and your other colleague were called back in, do you recall what was said about the package or items in the package?---Yes, that's per my notes is my only memory, it's per my notes as I took them physically in the meeting.

PN522

When you're referring to your notes, are you there referring to - - -?---Exhibit 6.

PN523

All right, and could I ask you to go to the second page of exhibit 6, to about a third of the way down the page and the heading or the note casual supply arrangement, I think it's bracket, letter, with a question mark and was Marcus, question mark. Can you recall and tell his Honour what you recall about the position put by the union at that point?---My memory was that the item as it was written in the document was accepted or was agreed that that was the position at that point, excepting that the letter from Mr Carrol had not been supplied or the document from Mr Carrol had not been supplied and that's why I made this comment, so the supply arrangement was per our discussions as noted in the document, but I still needed to supply that to the letter.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN524

THE VICE PRESIDENT: This letter was a letter of comfort?---That's what I understand, your Honour. It was referred to as Mr Carrol had made the offer to put a list of the conditions under which we would employ labour hire casuals and I think the words that we used is so that it would not be cheap labour.

PN525

Mr Carrol had made the offer. He was to provide a letter of comfort?---That's my understanding, yes.

PN526

MR MORRIS: Could I ask you this? What did you then understand to be the union's stance in relation to the supply of that letter?

PN527

MR DOCKING: I object.

PN528

THE VICE PRESIDENT: I think this gets to the very core of the matter, Mr Morris, where in fact it is necessary to have admissible evidence. The witness's understanding is strictly irrelevant. What was said or done, the objective characterisation of what was said or done is another matter altogether. That's the real concern.

PN529

MR MORRIS: Was anything said to you indicating that the furnishing of a letter of the kind Mr Marcus had described was not wanted?

PN530

MR DOCKING: I object to any leading or suggestion at all.

PN531

THE VICE PRESIDENT: Yes. I think, Mr Morris, that non-leading questions are called for when you get to the very heart of the matter.

PN532

MR MORRIS: Yes, all right. Perhaps I could move on to the - - -

PN533

THE VICE PRESIDENT: If you're not going to ask further, Mr Jordaan, do you remember, doing the best you can and everybody recognises you can't remember precisely word for word what was used, do you remember what Mr Jordan or any of the other union representatives said about this issue of casuals at this point in your notes, at that point in the meeting where your notes say casual supply arrangement, bracket, letter, question mark, close bracket, bracket, was Marcus, question mark, close bracket?---Mr Jordan simply said that the position that we had arrived at or what our mutual understanding was is irrelevant, excepting that this letter that Mr Carrol had promised was still required. That was effectively the words.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN534

Yes, Mr Morris.

PN535

MR MORRIS: Now, going down then to the next item or apparent item on exhibit 6, paid union meetings, can you read to his Honour what your notes say and then - perhaps you can do that?---As far as the paid union meetings are concerned, my note just indicates and I tried to verbalise what - or note what was verbalised, so this position has changed, it's not the way that we prefer it to be. We are disappointed that we could agree, but now go back and that referred to what I said earlier as well, that I had made the offer that we would pay for union meetings, there had been a number of discussions about the number of hours and so on, we arrived at 12 hours, I said that we would pay for 12 hours because that was the current practice, the meetings would be held on the mine and that it would be paid to a maximum of 12 hours per person per annum and that we would pay it on the basis of attendance. Now what was being put forward in this package as I explained earlier was that Xstrata were of the view that they were not willing to do that. They would honour my commitment to pay the 12 hours, despite the fact that they didn't want to, but because I had made the commitment, but they would not agree to paying it for attendance and that was the difference and that is what is referred to as now we've gone back, because I no longer honoured that undertaking.

PN536

I wonder if you could just repeat what you recall Mr Jordan or the lodge officials saying in respect of the status of this item?---Just that they were disappointed that we had gone back on our word.

PN537

MR DOCKING: I object. There should be an attribution to a person or persons speaking?---Mr Jordan.

PN538

THE VICE PRESIDENT: Mr Jordan is disappointed is the gist of it.

PN539

MR MORRIS: Then if I could ask you to go - - -

PN540

THE VICE PRESIDENT: And he's disappointed about going back?---That we could agree on something and then go back on our word or on the position.

PN541

MR MORRIS: Then if you can go down to the item trainee numbers, could you read to his Honour what you've written there?---Need agreement in terms of numbers. We do not support third party. The original agreement with Thiess on numbers was that the people would be Thiess employees. The number is subject to discussion. We cannot agreement that you will replace people with casuals. We will have no control.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN542

Do you recall who was speaking for the union on this point?---Mr Jordan.

PN543

THE VICE PRESIDENT: So when you were using the word we then, you were attributing that to Mr Jordan rather than to something that was Thiess's position?
---We is Mr Jordan in this case. Mr Jordan's words were we do not support, being Mr Jordan and the union.

PN544

You said we cannot agree, we will replace people with casuals, but I understood you to be saying, or that the reference to we there was a reference to Thiess?
---The first reference, your Honour, was to we cannot agree, being the union, the second we is we, that Thiess will be replacing - the collective we I guess will be replacing people with casuals or with labour hire.

PN545

MR MORRIS: And the we in connection with control?---The we in connection with control was the employees.

PN546

And then can I take you to the next item?

PN547

THE VICE PRESIDENT: And what was Mr Jordan's response to that?---That was the feedback they gave me, your Honour, is that they believed that if we - - -

PN548

No, no, no, I'm sorry, you've articulated in your notes that we cannot agree is the union cannot agree, but then you've responded, well, we, Thiess, will be replacing people with casuals, no control. Was there any further response from the union?
---No. At that point, that was all feedback from the union. There was no response other than they said, the union said, Mr Jordan said that they cannot agree that we will replace, that Thiess will replace, because they will lose control. They cannot agree to that, because they will lose control.

PN549

MR MORRIS: Then can I ask you to go to the item next on that page, on exhibit 6, the word staff and the writing after that? What does your note say there?---Reject the position of the company, common understanding, want agreement in writing that you will not change - want an agreement that we won't change, change from the status quo. That was on the mine and that is that we didn't use staff on the gear.

PN550

And again trying to put or ask you what you recall were the words that were used by - was it Mr Jordan or a lodge official?---It was still Mr Jordan.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN551

Do you recall how he put the union position on this item?---We as the delegates reject this position of the company. We do not agree that you will take this out of the claims. We had a common understanding as to how staff would be used on the mine and the words were something like while we can trust you and we accept your word that you won't put staff on gear or, in fact, my words were that I didn't believe there was a benefit because I didn't have enough staff to put on gear for economic reasons, but we would go and look at our alternatives, so while we as the union accepted your word or we could accept your word, we still want an undertaking in writing because you may move on or somebody else will come to the mine and there would be a different understanding and those people would implement.

PN552

Do you recall how the meeting on 13 September wound up, for example, what discussion there was about the next steps, that sort of thing?---The next steps was at the introduction. Mr Jordan had said if we cannot change the view as per our discussion, we obviously need to take this to the people because you've put the package to us and we have to go and take that to our people or to our employees or our members and that would be done on the Friday and the Wednesday. It would have been then the 15th and the next Wednesday, the 20th probably.

PN553

And was it later that day that you received a notice initiating a bargaining period?
---That's correct.

PN554

That day being 13 September and was the next meeting then of the negotiating group 22 September?---That is correct.

PN555

And does exhibit 7 comprise notes that you made during the course of that meeting?---Yes, that's correct.

PN556

Could you tell his Honour where that meeting was held on 22 September?
---22 September would have been in the MEG office again in Singleton.

PN557

The MEG is?---Mining engineering group.

PN558

And that's an office that Thiess has in the township of Singleton?---That's correct.

PN559

And on the union side, was that attended by Mr Jordan and lodge officials?
---That is correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN560

Can you describe to his Honour the course of that meeting as you recall it?---The purpose of that meeting was for the union to give us feedback on the discussions that they had had with their members on the Friday and on the Wednesday, to give us feedback on the position.

PN561

Can you recall how Mr Jordan then provided that feedback, what was said?
---Yes. That's summarised in the first four points on those notes.

PN562

That's exhibit 7?---That's exhibit 7, that's correct. The purpose of the meeting was that there would be feedback on the informal meetings, those were the words, the informal meetings that were held to report back on the document that was reflective of the position as put by the company. We also put to our members, because of the need to tie everything together, put agreed issues such as have been resolved, but as part of the package, it was also put to the members. I was informed at that time by Mr Jordan that the result of the meeting was that the offer by the company was unanimously rejected, the package was completely rejected. I made a note, the majority, or all the comment was by Mr Jordan and I think the question was to - no, my memory is that the question was to Mr Lawman. There wasn't a guarantee, all the people were there, present at the meeting, but those that were there, certainly the perception was that the majority had rejected the position and then I was informed that in respect of that report back, the employees had given instruction to the lodge and to Mr Jordan that they should apply for a secret ballot and I made the note protected industrial action. Mr Jordan's words to me were that it had not yet been acted on, but it would be, in the case of not getting anywhere or by my words in event of the claims not being progressed.

PN563

And then item 4?---That was just a summary, that the summary position is that the claims were unanimously rejected and that they were instructed to proceed to apply for a secret ballot.

PN564

And in terms of timing at that meeting, was that said before the attention being given and discussion turning specifically to the issues themselves?---I'm not sure I understand.

PN565

Well, you'll see item 5 on exhibit 7 says issues and then we see what are now becoming familiar list of issues, salary, super, et cetera. In terms of timing, was the discussion about the issues or, sorry, Mr Jordan's feedback about the issues after the items 1, 2, 3 and 4 that you've just been telling his Honour about?---Yes, that's correct. That was the introduction and then the feedback was because the package had been offered in that document, that list of all of the items, the feedback was also on each of those items so that we had a concrete position.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN566

Were your notes made at the time that Mr Jordan was speaking?---That is correct.

PN567

Can I ask you to go to the third page of exhibit 7, item 19, use of casuals per document with a tick. By reference to that entry or those notes, can you tell his Honour what you recall Mr Jordan saying at the time on that issue?---My recollection would be that, yes, the item as it had been described in the document was accepted.

PN568

Then going to - - -

PN569

THE VICE PRESIDENT: That means it was no change of position from your 13 September meeting?---Correct, yes.

PN570

MR MORRIS: I think you've already given evidence that at that 13 September meeting, there was reference to the exchange of letters?---That is correct. That was still required or still expected.

PN571

MR DOCKING: I object to that, your Honour. That's getting into his perception and I'll go to the objective facts in submissions.

PN572

THE VICE PRESIDENT: Yes, it's a matter for weight at the end of the day, the answer having been given, I think. I don't want to go through the formalities of striking from the record. I understand that that's a perceptual conclusion that's been drawn.

PN573

MR DOCKING: Yes.

PN574

MR MORRIS: Perhaps I can ask this. When Mr Jordan was expressing a position on the use of casuals, was there any reference at that time, this is on 22 September, to a letter of the kind that you referred to in 13 September?

PN575

MR DOCKING: Really, I have to object to leading. He's already exhausted what he said he claims he can recall in the witness box and now he's being led with something else then.

PN576

THE VICE PRESIDENT: Yes, Mr Morris, I think we need to have and it will apply to Mr Docking to the extent that any further evidence is called by him, but when we get to the central issues, if the leading objection is taken, it needs to be upheld essentially.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN577

MR MORRIS: If Your Honour pleases. I will move on.

PN578

The next item on exhibit - - -

PN579

THE VICE PRESIDENT: I am not suggesting you shouldn't pursue the topic in a non-leading fashion.

PN580

MR MORRIS: Yes.

PN581

Can I go to the paid union meetings item on exhibit 7. Can you recall by reference to your notes what Mr Jordan said about that item on that day?---Paid union meetings is an issue, we came to an arrangement, gone back on word, understand that there are legal issues, et cetera, but that should not impede the understanding of the parties, no reported or recorded document is a reference to while they can't be in the CA and doesn't have to be in any other document, but we had a common understanding.

PN582

THE VICE PRESIDENT: In terms of what you understood and I appreciate there are issues of relevant about this, but in terms of what you understood and I'll come back to the basis of the understanding, there was going to be no - the union was recognising there was going to be no written document, either as part of the workplace agreement or as part of some site agreement that would deal with this issue. That was the effect of what I thought you were saying a moment ago, in a reported or recorded document?---Yes, your Honour, it was a statement of fact that it can't be in the document, in the document being the CA or the certified agreement because it's prohibited content.

PN583

So is it right to say that what was being put to you was we'll have a gentleman's agreement, it's a matter of trust rather than a matter of obligation?---We had a gentleman's agreement and I'd gone back on it. That was what was being said, yes.

PN584

They wanted a restoration of the gentleman's agreement?---That's my understanding.

PN585

Thank you?---Just the last item was - we can't understand why we cannot continue with the arrangement, the arrangement that had been reached, discussed.

PN586

MR MORRIS: And then can I ask you to go down to the item trainee numbers? Do you recall, again using your notes, what Mr Jordan said about that?---Do not accept that it is removed and it should be dealt with. The employees' concern is that the employees will lose control over training, the conditions and the numbers.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN587

And the next line?---And the next line is to settle on the number, that we want to continue talking about that and our position or their position remains 12.

PN588

And then finally item 26 at the foot of that page, demarcation staff, which I think has the notes carrying over to the next page. Can you tell his Honour what you recall was said?---Demarcation of staff is as for trainees. That is the same, is that don't agree that we remove the item on staff on gear out of the claims and on the next page it says we want a commitment that you will not put staff on gear, then you can take out, put in writing.

PN589

And do you recall how that meeting on 22 September wound up? What was the concluding next steps discussion?---At the end of the meeting, we agreed that I needed to obviously go and reflect on the position that was put to me, because I had put on the table what was effectively the mandate that I had received from both Thiess and Xstrata in the belief that on the unprejudiced discussions we had, we weren't very far apart in our positions, so I needed to take the feedback that I got through the union from the members back to Thiess and Xstrata and I also had to go and reflect on what had been said and we agreed at that point that there would be a follow up meeting for me to provide feedback or to give feedback on what had been said and that meeting was set for the 27th and at that point, I had to excuse myself because - we had to excuse ourselves, we being Thiess, because we had a farewell function for Mr Alan Vydock and we had to leave immediately after the meeting.

PN590

So the next meeting was held, was it, on 27 September?---That is correct.

PN591

And is exhibit 8 notes that you made in the course of that meeting?---Yes, that's right.

PN592

Where was that meeting held?---That was in the conference room on the mine, but in the Xstrata Mount Owen conference room.

PN593

Is that because Thiess has some rooms - sorry, office facilities and conference rooms and Xstrata does as well?---That's correct.

PN594

And can you tell his Honour what you recall is the course of - the things that were said by you and the union respectively during the course of that meeting?---As I said, the purpose of the meeting was to provide feedback on the position that had been put to us as a result of the discussions with the employees. I made the point that the package that had been offered was a mandate position, was done after I had spoken to both Xstrata and Thiess and it was based on the unprejudiced position or in the belief that we had arrived at a much closer position after the unprejudiced discussions we had and what I basically said was that at the previous meeting, which would have been the feedback meeting which would have been on the 22nd, that the position from the union had not moved at all. In fact, the position that had been put to me on the 22nd was in fact a claim for salary increases which were still at a level that was prior to the on an unprejudiced basis discussions that we had which would go back to somewhere in August somewhere or July somewhere and all I could say was that you haven't given us anything or haven't given me anything that I could go back to Thiess and Xstrata with and convince them that I needed to move to get further ahead in the process and I asked Mr Jordan at that - - -

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN595

THE VICE PRESIDENT: So this was money? Money is the big issue here?
---Money was the big issue, but it was the whole package. There was a number of other items as well, your Honour, things around sick leave which was made very clear. Even if the money was acceded to, that the position on sick leave that the company held would still be rejected, so there was that and there was also accident pay.

PN596

So the deal breakers at this point as you perceive them?---As I saw them at that point would have been the sick leave and the salary and then there was a few others that were still outstanding. There was a number, there was eight or so in total that we hadn't had any agreement on or hadn't moved to agreement on which included things like the union meetings in my mind, the staff and other items we'd been talking about, it was about eight in total and I then at that point asked Mr Jordan whether it would be possible, because I didn't have anything to take back, whether he could go and discuss the matter further with his members because the feedback was that they rejected the package, but there was nothing in return that said, yes, but we're willing to work on these. In the meeting of the 22nd, you'll see in some of the items, I don't remember which, I can go through them, there would have been mention that we would be willing to talk further about this or the lodge would further talk on these issues. There was one or two of those and then I said, well, what about these other positions, because I've got nothing to go back? Mr Jordan response purely was our position was made very clear at the previous meeting, our members rejected your offer or your package offer outright, that was made clear to you and it was also made clear to you at that meeting that that was our position and if we could not move forward, we had been instructed and I was told that at the previous meeting, to apply for a secret ballot so that was made clear to you, so you know where we're going and I recollect Mr Jordan's words were something along the lines, well, if you don't move and you have a clear position as to what our members are saying, then clearly we've reached an impasse, so that was the conclusion of the meeting, not a very long meeting.

PN597

Can you tell his Honour what position Ms Donna Armstrong holds in the organisation in Thiess?---Ms Armstrong is the HR adviser on the mine.

PN598

Was she a participant in all or virtually all of the meetings with the union in relation to the new agreement for Mount Owen?---I would think that she would have been in all of the meetings. If there was one that she wasn't at, it wouldn't be many. She was in all of them from my recollection.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN599

Do you recall her maintaining notes or keeping notes during the various meetings?---Yes, that is correct.

PN600

Have you seen notes that appear to be in Ms Armstrong's writing in relation to meetings on 13, 22 and 27 September?---Well, I know that they are in her hand, because she kept all of the documentation together.

PN601

Your Honour, I tender those notes. I accept that there may be an issue of weight, but the Commission is not bound by the strict rules of evidence. I think it's reasonable to at least have regard to those notes where there may be issues of conflict or inadequate recollection, for example, on the part of any party.

PN602

THE VICE PRESIDENT: Is there a particular reason why Ms Armstrong is not here today, when you foreshadowed that you would call her?

PN603

MR MORRIS: Really just a judgment of practicality, the need for the proceedings to be as concise and direct as could be.

PN604

THE VICE PRESIDENT: Mr Docking.

PN605

MR DOCKING: I object, your Honour. I took an objection yesterday and in the face of that objection, Mr Morris the transcript will show said something to the effect she will be called, on a particular aspect of her notes. Now, if they make their own forensic decision, they have to take the consequences. It was about the timing of a meeting and some time she recorded, for example, and that's when the transcript will show, I don't have exact words, but it was something like if an issue is taken and an issue is taken, what's taken in the witness box by Mr Jordaan that she would be called. Now they've gone back on that. He should never have been cross-examined on those notes of that person in those circumstances.

PN606

THE VICE PRESIDENT: Anything further you wanted to say, Mr Morris?

PN607

MR MORRIS: No, your Honour.

PN608

THE VICE PRESIDENT: This is a very fine balance, but I think in the interests of justice and the particular circumstances of this case, I should reject the tender. I appreciate that one of the ways is to admit them in to deal with them as a matter of weight, but having regard to the circumstances that Mr Docking relies upon, it seems to me that the absence of Ms Armstrong to be available for cross-examination and therefore depriving the union of an opportunity of testing the nuances of meaning in particular that are to be attributed to Ms Armstrong's notes means that on balance, it's unfair to admit them and I reject the tender.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XN MR MORRIS
PN609

MR MORRIS: In that event, that's the examination in chief.

PN610

THE VICE PRESIDENT: Thank you. Just before you start, Mr Docking, I've got a few questions for Mr Jordaan. Mr Jordaan, Mr Jordan gave evidence, this is not the precise words that he used, I am just trying to summarise the effect for you, but the effect of his evidence was that he was conscious that matters of prohibited content couldn't be the subject of an agreement, a workplace agreement and that there were things that were in the old agreement that needed to come out and that at no time was he trying to achieve an agreement, a workplace agreement that would contain these prohibited content items. What's your response to that? Do you agree with that, that that was generally how he presented himself, or do you have a different perspective?---That's how he presented himself yesterday. The first part of the statement is correct. The second part of the statement, that he did not seek that as part of agreement - - -

PN611

No, as part of a workplace agreement?---As part of a workplace agreement, as part of a workplace agreement, yes, in terms of the workplace agreement, that's correct.

PN612

But you would say that he also - but he in fact saw some of these items outside of a workplace agreement, some other agreement, exchange of letters or whatever?
---Your Honour, the only way I can answer that is that we have all along discussed and every time we've put a position to the union or that it was responded, it was responded on the basis of a package and the package included those items, as is evidenced in that document, I think exhibit 5, as a package.

PN613

Yes, Mr Docking.

<CROSS-EXAMINATION BY MR DOCKING [12.10PM]

PN614

MR DOCKING: Just picking up what his Honour just asked you about, do you know Mr Robert Lawman, the employee of Thiess who was also the president of the lodge of the CFMEU at the relevant mine site?---Yes, that's correct.

PN615

He's presently in court today, isn't he?---That's correct.

PN616

And I just want to take you back to - there was one meeting on 4 July 2006 involving yourself and also representatives for the CFMEU about the new certified agreement, wasn't there?---I think that's the date. There may have been.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN617

I will see if this topic assists you. There was a discussion where it was agreed that Mr Lawman on behalf of the CFMEU lodge and Ms Armstrong on behalf of Thiess, the employer, would go through the existing certified agreement and mark up those parts which were thought to be prohibited content and would have to be removed from the new certified agreement?---That's correct.

PN618

And an arrangement was made where some four hours was spent by those two persons working together - - -

PN619

THE VICE PRESIDENT: Who was that again?

PN620

MR DOCKING: A total of four hours.

PN621

THE VICE PRESIDENT: No, who?

PN622

MR DOCKING: Mr Robert Lawman.

PN623

THE VICE PRESIDENT: And Ms Armstrong?

PN624

MR DOCKING: Yes, an arrangement was made which was implemented. They spent two sessions of two hours each going through the present certified agreement, noting up those parts that were thought to be prohibited content and therefore could not be in a new collective agreement, didn't they?---I do know that they met, yes, and that was the intent, but also to do the housekeeping Mr Jordan referred to yesterday.

PN625

And let's make it clear. The reference to housekeeping, your perception is, was, those sites had to go through the existing certified agreement, identify what was thought to be prohibited content and to make sure that was removed for the new collective agreement sought by the CFMEU as the industrial organisation of employees representing some 293 employees at your mine site?---Yes.

PN626

Now, I think you said Ms Armstrong was a HR adviser. Did she report back to you on that issue, to tell you that these meetings had taken place and that two people to whom had been delegated the responsibility had marked up the certified agreement?---The only feedback was that, whether it was one or two meetings that had been held and that they are progressing as per I guess the instruction from the bargaining group to go through the document.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN627

And the bargaining group consisted of the employer's side headed by yourself and then the CFMEU side headed by Mr Jordan?---That's correct, yes.

PN628

And I think you described it, it was an actual instruction from the meeting of the bargaining group that this should take place?---That's correct.

PN629

And let's use a good example. You're familiar with the certified agreement, it has a clause 8, casuals?---Yes.

PN630

And the effect of the existing clause 8 really permits the employer to use casuals to cope with variations in work demand, absence of permanent employees or as otherwise required?---That does not speak to the site agreements that exist.

PN631

Sir, can you just attend to the question. You know that what I just read is part of clause 8 of that - - -?---That's correct.

PN632

The part which had been identified, I'll use the expression you used, bargaining group, that had to come out was where the existing clause 8, casuals, provides the parties will agree to the supply arrangements for casual labour?---Correct.

PN633

The CFMEU had accepted, from your perception of attending these bargaining unit meetings, that that part of the current clause had to come out because it was prohibited content?---Yes.

PN634

The employer agreed, didn't it?---Correct.

PN635

Whilst dealing with the certified agreement it remained in force until 17 July 2006, did it not?---Yes.

PN636

You know within that agreement, based on your working knowledge, it contains clause 12.5, apprentices and traineeships, doesn't it?---Yes.

PN637

The concluding part of that clause provides:

PN638

Management will decide on details regarding the development and implementation of the apprentice and traineeship programs

PN639

?---I believe that to be the wording.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN640

The earlier parts prescribed, for example, for a trainee that he or she should get a certain percentage of a rate as pay?---That's correct.

PN641

Under the existing certified agreement, management, do you understand it, has, according to its view, an open hand to decide on the details regarding the development and implementation of use of trainees?---The agreement does, yes.

PN642

I just want to make it clear, no one suggests at 12.5 the premise that traineeships has any prohibited content in it, have they?---No.

PN643

You don't now either?---No.

PN644

You understood that the CFMEU were content to have 12.5, apprentices and traineeships, in any new collective agreement?---As far as the collective agreement is concerned, yes.

PN645

Sir, how long have you been at the mine site for as of today?---About 18 months I would - I'll have to add up quickly but 18 months I would think.

PN646

You can't talk from any direct participation about any understanding or side agreement prior to 18 months?---It was made very clear to me when we started these negotiations that there are a number of side agreements that the union would expect to be respected and continued into the future.

PN647

You might now answer my question. You can't, going back 18 months before that, give any direct evidence because you didn't directly participate in reaching any agreement, understanding, letter of comfort or oral offer of comfort from the employer, can you?---Correct.

PN648

I just want to make it clear as well, the current certified agreement has clause 30, union monthly meeting, in it?---Yes.

PN649

You understand from the bargaining unit discussions, it's been accepted - I'll break it up into parts - by the employer that that has to come out as prohibited content?
---Yes.

PN650

You understand from your participation in the meetings that the CFMEU has accepted by dint of what's in the current legislation, it has to come out because it's prohibited content?---Yes.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN651

Agreement has been reached about that needing to come out?---That's correct.

PN652

I'm not sure if your Honour has a copy of the certified agreement available. I've only got the one at the moment. I can - - -

PN653

THE WITNESS: There's one on my chair there.

PN654

THE VICE PRESIDENT: It's easy to print one off Wagenet, so that's fine. I take it you want to tender it, do you?

PN655

MR DOCKING: Does your Honour take it they need to be tendered as a statutory instrument? I'm in your Honour's hands.

PN656

THE VICE PRESIDENT: Mr Docking seeks to rely upon it, Mr Morris. Do you have any objection to it being relied upon?

PN657

MR MORRIS: This is the workplace agreement?

PN658

THE VICE PRESIDENT: The existing workplace agreement.

PN659

MR MORRIS: No.

PN660

THE VICE PRESIDENT: Thank you. There's no need to formally tender it, I'll rely upon it as necessary.

PN661

MR DOCKING: Thank you, your Honour

PN662

I just want to clarify the number of meetings that have taken place. I won't read out all the dates Mr Jordan made reference to by virtue of a note, but before 22 September 2006 there had been some 15 meetings involving the bargaining unit?---Sounds about right. I haven't counted them but I've got a list of them, some .....

PN663

You say that quite separate from the bargaining unit, you had a separate meeting with Mr Jordan on 8 September 2006?---Yes, that's correct.

PN664

You made a reference in the witness box there you had some notes, but you haven't got them with you. Did I hear you correctly?---That's correct. I don't have them with me.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN665

Where are they if you wanted to rely upon this meeting, 8 September notes?
---They are in my bag in the office.

PN666

What office?---The office at Mr Morris's place. I didn't think to bring them.

PN667

Given you know Mr Jordan got cross-examined at length yesterday on notes of yours and other persons, surely it was apparent to you you should have brought your 8 September notes, given you were going to give evidence about that meeting today?---Well - - -

PN668

It was apparent to you, wasn't it?---Well, no, it wasn't, otherwise I would have brought them.

PN669

Just something I want to get clarified.

PN670

THE VICE PRESIDENT: Mr Docking, it's a matter for you if you want to attack the credit of the witness, but my perception at the moment is that he's doing his level best to tell the truth.

PN671

MR DOCKING: Your Honour, there can be an issue of reliability, it doesn't need to go to the veracity and accuracy and people reconstructing or perceiving. That's all - - -

PN672

THE VICE PRESIDENT: I just wanted to make it clear that you're free to attack his credit if you want. You've got your work cut out before you if you want to, but I'm saying you may well be able to persuade me, but I won't be persuaded by, if I can describe it, the slightly pejorative fashion of buoyed barrister debating point like that, that the witness has left his notes back in the chambers. If you want to go after him, by all means you're entitled to do that, but it will need to be more than what you've done.

PN673

MR DOCKING: Yes. Can I make it clear - - -

PN674

THE VICE PRESIDENT: Might I say I took the same view about Mr Jordan as well. I thought he was doing his level best to tell the truth as well.

PN675

MR DOCKING: Exactly, and reliability can have a component of veracity. One doesn't need to go to that. There's an issue of accuracy and all sorts of issues come into the ability to recall, your perception, your selective hearing and the like. That's not saying someone is dishonest or not to be believed because they don't tell the truth under oath. That's an entirely different compartment and I'm not going to that at the moment.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN676

THE VICE PRESIDENT: Certainly.

PN677

MR DOCKING: I just want to get some of the expressions clearer. I can provide you a copy of exhibit 4 - I'm not sure if you need to see it, but perhaps for safety I'll approach and hand him a copy of exhibit 4.

PN678

THE VICE PRESIDENT: Yes, certainly.

PN679

MR DOCKING: I just think it's important not to confuse documents here. You've seen a copy of that before, haven't you?---That's correct.

PN680

To make it clear, in the 15 meetings that took place before 22 September 2006, the CFMEU's log of claims comprising exhibit 4 was actually presented at the first of those meetings on 15 February 2006?---That is correct.

PN681

I haven't got mine open in front of me, but it contains, if my recollection is right, some 14 demands or items, does it not?---That's correct.

PN682

There has only been one CFMEU log of claims comprising those 14 demands, hasn't there?---That is correct.

PN683

Because you keep making reference to the package or the offer, quite separately from the CFMEU's log of claims, Thiess has put forward its package, hasn't it?
---That is correct.

PN684

I don't know if I'm going to have to tender them all, but by way of example 9 May 2006, do you remember that Thiess created a document which dealt with two parts at least, Thiess's proposal or package which had its demands as the employer on the employees?---Yes, it would have been a proposal that we made. I don't know the particular document but that's what my expectation would be, yes.

PN685

Quite separately to Thiess's proposal or collection of demands, its package, quite separately was Thiess's response to the CFMEU Mount Owen lodge log of claims, a copy of which is exhibit 4, wasn't it?---If that's what that document says, then that's correct, yes.

PN686

Let's go from your own recollection. You've already confirmed the CFMEU Mount Owen lodge log of claims was presented, had 14 items at the bargaining unit meeting on 15 February 2006?---That's correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN687

Then, for example, I'll see if this refreshes your memory, there were two further meetings after that, 24 Feb and then 26 April 2006. At that last meeting Thiess put its position, its own package of demands to the bargaining unit meeting, didn't it?---That's correct.

PN688

Then there was the fourth meeting, 4 May 2006, for example, at that meeting, Thiess, quite separate from its own package of demands, its list of things it wanted, Thiess put its response to the CFMEU Mount Owen lodge log of claims at that meeting on 4 May 2006?---That is correct. That was as per the agreement with the union at that time.

PN689

I'll show you the document if I have to. An example of what Thiess put at this meeting on 4 May 2006 as its proposal, the employer's proposal, was:

PN690

Union monthly meeting seeking to pay one hour overtime per month per employee towards union meeting, but seeking meeting to be held out of normal work time to increase production.

PN691

?---Correct.

PN692

The position is clear, that was the demand of Thiess, wasn't it?---That's correct.

PN693

Because you participated in these bargaining unit meetings, was that the position right up until 13 September 2006, that is, was that the demand of Thiess right up until that date?---Yes, that the meetings be taken outside of production time. How it was to be compensated for was a matter of discussion that had been going backwards and forwards and up until 13 September that's when the position changed, that it won't be paid on attendance but paid on being added to their salaries.

PN694

THE VICE PRESIDENT: Mr Docking, do you have the first of the Thiess package documents?

PN695

MR DOCKING: I'm going to need to check this folder and doing it in the way ideally I would like, I'm - - -

PN696

THE VICE PRESIDENT: Presumably Mr Jordaan can assist you in identifying whether or not there is an earliest Thiess package document.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN697

MR DOCKING: If your Honour could just bear with me. I'll show the witness this document and it might answer that query, your Honour.

PN698

I'll need to get your assistance. Once you've had a chance to familiarise yourself with the document, will you confirm, if you're able to, whether that is the first time Thiess put its own package, its own demands it placed on its employees at Mount Owen for the purposes of these negotiations?---It certainly looks like the document - well, there was a list that was put and this was the summary of what we had put and all in one package which is what we took back to the employees in a feedback session so this document was in response to that.

PN699

Yes, but those demands were formulated by Thiess as the employer?---I'm not arguing that. That's correct.

PN700

Sorry?---That's correct.

PN701

I have to clarify this because you've been very fair today, you've made it clear that not only Thiess had input at times during this process, but also the owner Xstrata?
---Correct.

PN702

Let's be specific, for the four issues that Mr Morris identified yesterday, and you were in the hearing room, no one complained about that but is it Xstrata who has asked for this demand about the use of casuals that Mr Morris made reference to as the first of four issues yesterday?---You'll just have to specify the casuals, the labour hire casuals for trainees or labour hire casuals per se?

PN703

The first issue he identified was, I think it's the use of casuals per se. Is that Xstrata's demand?---No, that was a Thiess demand.

PN704

Then you're quite right, the second issue was the use of trainees, the engagement of trainees, is that Xstrata's demand?---No, that was a Thiess demand, supported by Xstrata because nothing could be put to the union without Xstrata's approval. I mean, I think I made that clear right at the beginning.

PN705

All right. Then the third issue, the paid union meetings, the document I've just showed to you indicated the proposal to have them out of work time, to have them paid, whose proposal was that?---That was Thiess's proposal.

PN706

Is it Xstrata has vetoed paying for them if they're held out of work time?---Xstrata has vetoed for those meetings to be paid on the basis of attendance. The payment is not at issue, it's the payment for attendance which is at issue.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN707

That, because I'm looking at the demand in your own document, was people attending out of work hours, Xstrata vetoed paying people attending union meetings out of work hours?---No. They didn't veto paying out of work hours, they vetoed paying out of work hours for attendance.

PN708

Just to make it clear then, this fourth issue Mr Morris identified yesterday as engaging staff personnel on operating equipment at the mine, I think today you've made it clear you don't see much benefit in that because you haven't got the staff to use. That's right?---That's correct.

PN709

Was that Xstrata's demand?---That was an Xstrata demand in exchange for increasing the offer in terms of salary. That's correct.

PN710

Your Honour, I'm happy to tender the proposal document of Thiess with its log of demands with the witness. I apologise, it's the only copy I've got at the moment.

PN711

THE VICE PRESIDENT: Rasheen can make some copies in a moment. Any objection, Mr Morris?

PN712

MR MORRIS: No.

EXHIBIT #10 THIESS PROPOSAL DOCUMENT DATED 04/05/2006

PN713

THE VICE PRESIDENT: Do you need that further, Mr Docking, at the moment?

PN714

MR DOCKING: No, your Honour, not at the moment. I want to go to exhibit 5 at the moment.

PN715

THE VICE PRESIDENT: One moment, Mr Docking. Thanks, Mr Docking.

PN716

MR DOCKING: I just want to get clarified for the Commission, exhibit 5 is 13 September table in landscape form, isn't it?---Yes.

PN717

You understand what I mean - - -?---If that's what the number is, that's the one that looks like that.

PN718

You understand what I mean by a landscape document, do you?---Yes.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN719

The document that just got tendered, exhibit 10, that was produced by Thiess as well. That was the one that had the first proposal or log of demands?---No, that's exhibit - sorry.

PN720

THE VICE PRESIDENT: The one that - - -?---The one that you were just looking at, your Honour?

PN721

Yes, that I've just taken away?---If that was the number, I'm sorry. I didn't know.

PN722

MR DOCKING: I just want to clarify so the Commission can understand how these were produced, they were produced, that is written, printed by Thiess the employer, weren't they?---Correct.

PN723

Was there a system about who was responsible for writing those documents? For example, was it Ms Armstrong?---It was Ms Armstrong and Mr Carrol.

PN724

What happened there were quite a number of these documents that the employer issued one after a meeting or meetings to update the current position?---Correct.

PN725

You say the employer issued those as a communication mechanism to tell employees where the negotiations had reached?---Yes, that's correct.

PN726

Was there a system required that such a document didn't get issued unless you had read it and confirmed it was correct as best you could?---Yes, very much. The common understanding was that Mr Jordan and I both had a look at the document and if there were any factual untruths that they would be corrected.

PN727

Yes, but the union never agreed through Mr Jordan or the lodge officials to sign off on it to say - - -?---I don't think there was an expectation that it needed to be signed off, it's just that it didn't contain factual incorrect - - -

PN728

The think the employer gave the courtesy, as Mr Jordan said, it might be emailed to him on occasions so he could have a look at it and if he was on site he would be given a hard copy?---He would be given a copy. That's correct.

PN729

At the end of the day, the ownership, who's responsible for what's in it, always remained with Thiess?---Yes.

PN730

Did you have to refer it on to people more senior to you to confirm it was the accepted position?---No, that was the accepted position. People more senior than me weren't involved in it so they wouldn't know as to the content.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN731

Can you remember these 15 or so meetings, ending with the 15th on
13 September 2006, how many such landscape documents got issued by the employer?---I would have to believe that there was at least one for every meeting or one for every two or so meetings. They were regularly produced and updated.

PN732

So the position is clear, the idea was to give the most up to date position of the employer?---Correct.

PN733

So the position is very clear, the last one, the last word issued by the employer is exhibit 5, being 13 September 2006 document?---Package offer, that's right.

PN734

Nothing has been issued in that form since, has it, by the employer to its employees?---No, that was the last document.

PN735

Do you have your copy of exhibit 5 there?---I have my one that's got the - - -

PN736

THE VICE PRESIDENT: Ticks on it?---Ticks on it, but it's the same document.

PN737

The same document, yes.

PN738

MR DOCKING: Let's make it clear, the one with the ticks or there's at least one bit of handwriting, with those handwritten additions, it was never issued in that form to the employees, was it?---No, without the ticks and without the comment.

PN739

What the employer did, did the employer hold its own communication meetings about 13 September 2006 document, marked exhibit 5, after the bargaining unit meeting?---Yes, I did.

PN740

The employer went out to the employees - and I'm not suggesting it wasn't entitled to - and said, "This is, so far as Thiess is concerned, the position"?---This is the position - the feedback was always, "This is the position we have arrived at" as the negotiations and the talk progressed and this is the position that we last arrived at, and this is the package that we have put forward to the union.

PN741

I want to make it clear the package we have put forward, it's the demands, the claims of Thiess as the employer in exhibit 5, isn't it?---That's correct or that's the position that we had at that point. That's correct.

PN742

Let's have a look at page 3, the bottom row, use of casuals, I'm just trying to navigate this document, there's three columns. Item refers to the particular claim, demand of Thiess, doesn't it, for example, casuals, use of casuals?---Yes.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN743

Then there's the second column headed Details, use for illustration casuals as the example. There's two dot points. Does details refer to the demand, the claim by Thiess?---No. That refers to - may very well in some cases be the claim, but it would reflect the position that we had arrived at over the 15 or so meetings that went before that as to what the common understanding was as to where we had arrived at.

PN744

I think at this one we might be at one. The common understanding reached was casual labour can be sourced from alternative providers to UMMS/TESA, hadn't it? That was the common understanding?---Yes.

PN745

The common understanding was, as at 13 September 2006, casuals can be used to cover overtime?---That's correct.

PN746

Then there's this third column which is titled Increased Details and Comments, the common understanding is that where it reads agreement can not deal with third parties, this means that the collective agreement was understood that it could not include prohibited content which limited the employer's right to use labour hire companies or third parties, in other words, as the supplier of casuals?---Yes.

PN747

I just want to confirm whilst dealing with this topic, you know Shane Gardiman, the secretary of the CFMEU lodge?---No, I know Shane Gardam.

PN748

Thank you, G-a-r-d-a-m. I apologise for my clumsy pronunciation. He was at 22 September 2006 meeting subsequent to 13 September meeting, wasn't he?
---I believe he would've been there. That's correct.

PN749

Did you see him take some notes?---We all took notes during meetings.

PN750

Just to confirm the position, it was agreed at that meeting by reference to
exhibit 5, that the position on casuals, it was okay, it was agreed between the parties, wasn't it?---That's correct.

PN751

In other words, the CFMEU had acquiesced or conceded the employer's demand about the use of casuals?

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN752

MR MORRIS: Sorry, can we talk about - there's two senses in which casuals have been debated.

PN753

MR DOCKING: I'll rephrase it. I can rephrase it, your Honour.

PN754

By reference to exhibit 5 - - -

PN755

THE VICE PRESIDENT: I must say I don't think that was an unfair question. It may give rise to re-examination unless you go further, but at the moment I'm content that what you're doing is permissible.

PN756

MR DOCKING: Thank you, your Honour.

PN757

At the bottom of page 3, exhibit 5, as at 22 September 2006, the CFMEU by dint of Mr Jordan and the lodge officials being present, had conceded, had acquiesced to the use of casuals demand, hadn't they?---Except that there was an expectation that there would be a document to support that, which Mr Carrol still needed to deliver.

PN758

Has that letter or document or something in writing ever been sent?---No, it hasn't. Mr Jordan referred to that yesterday as well.

PN759

That was something you made clear today - were you actually present when Marcus Carrol actually offered it?---Yes, I was present in every single meeting.

PN760

In other words, the CFMEU through Mr Jordan and the lodge officials were happy to accept an offer the employer made in relation to the employer's own demands?
---Yes, at this point.

PN761

Go back to exhibit 5.

PN762

THE VICE PRESIDENT: Just one moment, Mr Docking. Yes, thank you.

PN763

MR DOCKING: So it's clear that the previous offer for paid union meetings - in fact the demand by the employer initially was, you can be paid for union meetings if they're undertaken out of work hours?---That was the original position. That's correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN764

In response to that employer demand, the union didn't object to it, that initial demand?---No, they didn't.

PN765

What happened was, and I'm not blaming you in any way, you were overridden and told by Xstrata, were you, that you couldn't enforce that demand by offering it?---At a much later stage.

PN766

That's what happened, you were told by Xstrata - - -?---No, the union objected to me taking it out of work hours and offering to pay 12 hours. They put a counter position to me to be able to take that out.

PN767

Will you just deal with my question.

PN768

THE VICE PRESIDENT: He was, Mr Docking.

PN769

MR DOCKING: Xstrata overrode you and wouldn't let you pay out of work hours union meetings?---No. I answered this before, out of work union meetings for attendance or on the basis of attendance.

PN770

Let's look at page 4 of exhibit 5 so the position is quite clear. See the third column? It was accepted, wasn't it, by both the employer and the CFMEU that the collective agreement, if one was reached, could not include payment for union meetings as it's prohibited content under Work Choices?---That's correct.

PN771

Did you write this?---Ms Armstrong would have written it.

PN772

With the system you've explained - - -?---I would have vetted it and would agree to whatever .....

PN773

We've already clarified that this process with Robert Lawman and Ms Armstrong had already identified out of the current certified agreement the paid union meeting clause had to go out because it was prohibited content?---Yes. That would have been part of what the agreement was.

PN774

Just to clarify, exhibit 4, the CFMEU's log of demands, it's own demands, the union demands never ever included any component for paid union meetings, did it?---No. That's correct.

PN775

Never included any component for casuals, did it?---No. That's correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN776

Never ever has it included the union's own log of demands, included any provision in the 14 items for trainee numbers?---That's correct.

PN777

Nor has it included in the union's own demands, its only 14 items, anything about staff using - - -?---That's correct.

PN778

The only way those issues have arisen is because they were demands made by the employer on the union?---Correct.

PN779

I just want to see if we can - - -

PN780

THE VICE PRESIDENT: Just one moment, please. Yes.

PN781

MR DOCKING: Whilst we've got exhibit 5, page 4, go to trainee numbers, given this system, Armstrong wrote it but it only went out if you agreed with it, do you say if an item is removed from claims, do you say that was the employer position or an agreed position with the union and the employer?---Via the package that was the employer's position.

PN782

22 September 2006, it was confirmed by the employer trainees removed from the log of claims by Thiess, that that was the message given at 22 September meeting to the CFMEU and lodge officials, wasn't it?---That's what exhibit 5 also says.

PN783

I'm just looking at someone's notes. That was confirmed 22 September 2006, trainees removed from the log of claims by Thiess. That is your understanding of what happened at that meeting?---That's correct.

PN784

What had been said right back on 13 September 2006, that the company will investigate alternatives and implement as appropriate?---Correct.

PN785

In other words the company, had you looked at the collective agreement already in place and realised that gave you a right, you thought, to do that anyway?---I can only continue to respond that they were side agreements that the union expected us to honour and that's what we were dealing with.

PN786

The matter only came up because it was in your - Thiess's log of demands, trainee numbers, didn't it?---Correct because I could not do anything else outside of the agreement, that was a side agreement on the mine.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN787

THE VICE PRESIDENT: Can I interrupt here. These side agreements that you're expected to honour, was this a matter of trust or a matter of legal obligation?---Your Honour, I would believe it was a matter of trust, a matter of agreement over time between the union and Thiess.

PN788

MR DOCKING: For trainee numbers, that matter of trust, and one might say trust and confidence, that was reached, you understand it, before you were at the mine?---That's not quite correct. The first initial number of four was reached before I came to the mine and about at the time that I came to the mine, or shortly after that, the number was increased by another four to eight, so four per annum if I can put it that way.

PN789

Can I make it clear, no one is criticising you or the employer on this account. By mutual agreement it was thought well, it's a matter of trust and confidence, the employer was willing to offer that and it was agreed to by the union?---That's correct, at that time.

PN790

Going then back to exhibit 5, page 4 where it has demarcation (utilisation of staff) where it has first dot point, item removed from claims, that means, as you perceive it, Thiess as the employer removed that claim from Thiess's own log of demands or claims, didn't it?---Correct.

PN791

It further indicated that it being the company or employer would investigate options and implement as it, the employer, thought appropriate?---Correct.

PN792

Going to 22 September 2006 at that meeting, what was indicated on behalf of the employer was to this effect, removed the relocation of staff and not make it an issue?---I don't think that's quite correct, the relocation of gear, not relocation of staff.

PN793

I was being slavish in referring to a note, you can assume, but the employer's position at 22 September was remove the, in effect, the use of staff on equipment as an employer demand and therefore for the negotiations it was not an issue?
---Because we could not reach agreement we then removed it. Correct.

PN794

The same with the trainees, it had been confirmed to be removed as at
22 September 2006?---We've established that.

PN795

Just to make it clear, those demands about trainee numbers or use of staff on equipment since 22 September 2006 have not been resuscitated or erected as demands by the employer on the union, have they?---No, that's correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN796

Nor has the use of casuals been resurrected as an employer demand since 22 September 2006 because agreement has been reached?---No, I don't think agreement has been reached, otherwise we would have had a certified agreement. The position at that point was that we removed it from the log of claims. I agree.

PN797

Sorry, I just didn't hear the last - - -?---We removed it from the log of claims as you've established. We did that. I accept that.

PN798

You removed use of casuals from the log of claims being the employer demands on the union?---Correct.

PN799

So far as the payment of union meetings is concerned, as you perceived it from participating in the bargaining unit meetings, the union has made it clear that it rejects your demand of paying 12 hours per annum into salary?---Yes. My perception of it is as you asked because they expect us to pay on the basis of attendance.

PN800

Nevertheless, your demand has been rejected. I mean the employer's demand has been?---That's correct, it's been rejected. The package was rejected. I think we established that.

PN801

Again, I just don't want any confusion - - -

PN802

THE VICE PRESIDENT: Mr Docking, are you likely to be much longer?

PN803

MR DOCKING: I might be a little.

PN804

THE VICE PRESIDENT: There's a visiting judge from the New Zealand Employment Court that I was supposing to see some time ago and I expect him to be sitting today. Do the parties have any difficulties with me adjourning now until a quarter past two?

PN805

MR DOCKING: Not at all, your Honour.

PN806

THE VICE PRESIDENT: I think that will still make sure that we finish the matter comfortably today. Are you proposing to call any more evidence,
Mr Morris?

PN807

MR MORRIS: No, your Honour, not at this stage.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN808

THE VICE PRESIDENT: Mr Docking, do you propose to seek to call any evidence in reply?

PN809

MR DOCKING: I don't think so, your Honour.

PN810

THE VICE PRESIDENT: This green notebook you've been waiting around, one of your members has been carefully making, you're not proposing to call that witness to give any evidence?

PN811

MR DOCKING: I'll think about it over lunch. I don't think I would need to.

PN812

THE VICE PRESIDENT: Mr Jordaan, I'm sorry, you'll still need to be in the witness box after lunch. Mr Morris will explain to you that he and his instructing solicitor are not allowed to discuss the case with you during the luncheon adjournment?---That's quite all right, your Honour.

PN813

I'm sure Mr Docking will have no difficulty with Mr Morris having lunch with you on the basis that the case is not discussed.

PN814

MR MORRIS: There will be no issue with that, your Honour.

PN815

THE VICE PRESIDENT: Thank you. the Commission is adjourned until a quarter past two.

<LUNCHEON ADJOURNMENT [12.56PM]
<RESUMED [2.25PM]

PN816

THE VICE PRESIDENT: Thanks, Mr Jordaan. Thanks, Mr Docking.

PN817

MR DOCKING: I’ll show the witness this document. Can you just have a look at that document and confirm that was the next landscape document produced by the employer after exhibit 10, which had in the footer form A 2006 as its date?
---This looks like one of those documents.

PN818

Have a look, it very conveniently, doesn't it, pages 1 to 7 sets out the employer's demands and proposal or package?---Yes.

PN819

Then from page 8 it sets out on this occasion the union's log of claims with its
14 items or demands and in addition from page 8 has Thiess's response?---Yes, that's right.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN820

Your Honour, I apologise I'm taking that straight out of Mr Jordan's folder. I tender that document and I apologise for not having any copies.

PN821

THE VICE PRESIDENT: I'm sure Alicia will be happy to make a couple of copies. Any objection, Mr Morris?

PN822

MR MORRIS: I don't object to it formally. I'll reserve as to its materiality or relevance.

PN823

THE VICE PRESIDENT: I can well understand the ways in which you'll be making submissions, Mr Morris.

EXHIBIT #11 LODGE PROPOSALS DATED 09/05/2006

PN824

MR DOCKING: Consistent with the practice you describe, that was distributed by the employer to all employees as a communication to update the respective positions?---That is correct.

PN825

I just want to go to 13 September meeting. Did you ever see a draft from Marcus Carrol of the letter that was the offer he made to the union?---No, I did not.

PN826

Did you ever discuss with him the content of what was to go into that employer offer?---No, I did not.

PN827

On 13 September what Mr Jordan said was to this effect, the letter that you offered has not come?---Yes.

PN828

About paid union meetings, at that 13 September meeting, Mr Jordan said something like, "Has Xstrata changed the position"?---Yes.

PN829

Did you on behalf of the employer present agree that Xstrata had changed the position?---Yes, I said Xstrata had changed their position, they didn't want to pay for meetings based on attendance.

PN830

Just to make it clear, the last offer of the employer was to pay for meetings by increasing salary?---To compensate the employees for taking it out of work, yes, and therefore added to the salary rather than pay.

PN831

That employer demand or offer was rejected by the CFMEU?---Yes.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN832

Then I just want to go to this issue of staff on 13 September 2006. Part of what you said included words like "You've been told you do not need the agreement of the union to use staff." You said something like that?---The opinion was that, yes, we do not need the agreement - or the position that was being put forward by the principals was that we did not need the permission of the union. My view purely was that this was something that was entrenched on the mine and therefore I had a moral obligation to talk about these issues and .....

PN833

You actually said words at the meeting like, to this effect, "The company does not need the agreement of the union to use staff"?---I've already said that the opinion was that we did not need that.

PN834

You also said something like, "Xstrata do it on its other sites"?---Yes, I think that was something that was discussed.

PN835

Did Mr Jordan say something like, "Are you being influenced by Xstrata"?
---Well, I think the position was clear that I was being influenced by Xstrata, yes. They've got the right of veto, if you like.

PN836

THE VICE PRESIDENT: Mr Jordaan is clearly not a fool and he understood the hierarchy.

PN837

MR DOCKING: Yes, your Honour.

PN838

22 September, if I go to that meeting, after the discussion about the employer's proposal, there was also time taken up with what was called general business?
---No, that is not true. I left the meeting immediately after we finished and agreed on a date for the next meeting because I was already late for another appointment.

PN839

Did Ms Armstrong stay for some general business dealing with some queries that the lodge officials had?---I don't know.

PN840

I want to go to 27 September 2006 meeting. Present at that meeting on behalf of the employer was yourself, Peter Grosvenor and Donna Armstrong?---Yes, that would be right.

PN841

So that the context of that meeting is understood, before you left on 22 September 2006, you made it clear to those present you had to take the union's feedback given at 22 September 2006 meeting to Thiess and to Xstrata?---Yes.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN842

You also made it clear to those present that further negotiations depended on what you were told by Xstrata and Thiess when you took the feedback?---Yes.

PN843

Then turning to 27 September meeting, you indicated that the response of the employer was to this effect, the position is the same as what was presented by the employer on 13 September 2006?---Yes.

PN844

You also indicated to the effect, as the union position provided no change then the company are not in a position to put forward an alternative proposal?---Yes, I made that clear earlier on a number of occasions.

PN845

It was made clear by the CFMEU 27 September that the Thiess package, the Thiess offer was unanimously rejected by the lodge?---Correct.

PN846

It was on that basis of the rejection of the Thiess package offer that there wasn't to be a change in the union offer?---No. I made it clear again earlier, I stated that on similar questions by yourself that the reason I could not move is that I had nothing to take back to the employer because the position by the union was just, "We've rejected your offer" without saying, "Well, what can we do about it in moving forward?" or an alternative position or options to proceed.

PN847

So we've clarified, you were supposed to get the decision from Thiess and Xstrata by taking the union feedback from 22 September 2006 back to those companies, that's what you - - - ?---I accept that, yes.

PN848

And when you came back it was - the position was, we've got nothing else to offer you apart from what you presented on 13 September 2006?---That is correct because you've given me nothing that shows that you want to move ahead.

PN849

Thank you, your Honour, I have no further questions.

PN850

THE VICE PRESIDENT: Thank you. Mr Morris?

PN851

MR MORRIS: If you could give me just one moment, your Honour.

PN852

THE VICE PRESIDENT: Mr Jordaan, whilst Mr Morris is just considering his re-examination?---Yes, your Honour.

PN853

The sense I have is that whilst the parties eventually reached a position where neither of them was putting forward a global position that was satisfactory to the other and had reached an impasse by 27 September, that there was genuine negotiations occurring in the sense that the parties had been meeting and making serious discussions about various issues and there'd been some movement in various positions. Is that an impression that you think is an accurate one?---I had the same impression up and until the meeting of the 27th, yes, that's correct.

**** GERHARDUS ADRIAN JOHANNES JORDAAN XXN MR DOCKING
PN854

There's a number of issues here which have been the focus of questions that had been asked of you and when you've been sitting in the hearing room you've no doubt picked up that they're the major focus as well, the casuals, the paid union training leave and the staff moving excavators and the like. Can you recollect and can you tell me anything that was said to you that you interpreted as the union making any of those issues as distinct from other issues, pay and sick leave and what-have-you, issues that you had to concede or were a condition to you reaching an agreement?---The words that we used were to the effect, and I certainly had that understanding, the words that we used were to the effect that based on the package, or agreement on the package, there are certain things that we can concede further and some of those were included. So if we reached agreement on a package we could discuss this further or this would be okay.

PN855

They weren't necessarily deal breakers, these matters?---No. They were not necessarily deal breakers.

PN856

Thank you. Yes, Mr Morris? I should ask you, Mr Docking, first, is there anything that arises from that?

PN857

MR DOCKING: No, your Honour.

PN858

THE VICE PRESIDENT: Yes, Mr Morris?

PN859

MR MORRIS: I'm just making a note of an answer that - - -

PN860

THE VICE PRESIDENT: That's fine, Mr Morris, take your time.

PN861

MR MORRIS: Yes. I have no re-examination, thank you, your Honour.

PN862

THE VICE PRESIDENT: Mr Morris, an old school practitioner. It warms the cockles of one's heart. Thank you, Mr Jordaan.

<THE WITNESS WITHDREW [2.40PM]

PN863

THE VICE PRESIDENT: Mr Morris, is that the end of your evidence?

PN864

MR MORRIS: That's the evidence for the company, thank you.

PN865

THE VICE PRESIDENT: Are you seeking to call any evidence, Mr Docking?

PN866

MR DOCKING: No. I can indicate one issue which I understand the parties are not in dispute about, but employees were given notice about this hearing. There'd be no issue that your Honour's directions were complied with by the employer.

PN867

THE VICE PRESIDENT: I understand the only issue that stands between you and an order is whether or not there's been - whether or not the union has genuinely been trying to reach an agreement within the meaning of section 461(1).

PN868

MR DOCKING: And perhaps part of that or separate is this allegation about the union making demands of three matters which were said to be prohibited content and - - -

PN869

THE VICE PRESIDENT: That's encompassed by the 461(1) issue?

PN870

MR DOCKING: Yes. That's how I apprehend it. I thought it was a matter - - -

PN871

THE VICE PRESIDENT: 461 doesn't refer to prohibited content. We now have a number of Full Bench decisions which make it clear that seeking prohibited content can mean that the consequence is that the requirement in 461(1) is not satisfied, and that's the issue here.

PN872

MR DOCKING: Yes, not mandatory, but depending on the facts, it may or may not.

PN873

THE VICE PRESIDENT: Yes.

PN874

MR DOCKING: And I have read your Honour's published judgment delivered Friday in Ulan Coal. So I'm happy to then make submissions. I don't know if there is something Mr Morris wants to deal with.

PN875

MR MORRIS: Really, I just wanted, so that there's no surprise about this, I do, I think in the light of the way the evidence has fallen, wish to put a submission about subsection (2) of section 461 and that is whether your Honour should, in your Honour's discretion - - -

PN876

THE VICE PRESIDENT: No, that's entirely appropriate, Mr Morris, I can understand how that might arise.

PN877

MR MORRIS: Yes, thank you. I didn't want to be held to some sort of notional pleadings, that was all, your Honour.

PN878

THE VICE PRESIDENT: Yes, well, given that Mr Docking is about to make some submissions, so that he can direct his submissions appropriately, can you outline in the broadest of terms how it is that the granting of the application would be inconsistent with the objects, assuming Mr Docking was successful in relation to the 466(1)(i) criteria? I don't indicate by asking that question that I've come to that view, this case demonstrates how subtle the issues can become. I mean, Mr Jordaan was in particular I thought was a very impressive witness. I can imagine this country is better off as a result of the fine skills from South Africa to Australia with people like Mr Jordaan coming and working in Australian mines. But I find the 466(1)(i) issue difficult, but assuming that was resolved in Mr Docking's favour, what are the objections of the Act or the objects of the division that you say the granting of the application are inconsistent with?

PN879

MR MORRIS: Yes. The objects of the division are set out in section 449 and there's been one or two cases on this, but in the plainest terms in which I can put it, what is the object of this division is that there's a transparent process by which employees can vote to take protected industrial action or authorised industrial - - -

PN880

THE VICE PRESIDENT: And that object is compromised if they're taking industrial action in support of prohibited content claims?

PN881

MR MORRIS: Indeed, or if there is a confusion potentially in the minds of employees as to what it is that is the subject of the claims that are being advanced. The employees are not clear for some reason that the Commission would find that there was an add mixture, if you like, of both claims for an agreement and outside an agreement, then the object of the division would not be achieved.

PN882

THE VICE PRESIDENT: Yes. Yes, thank you, Mr Docking?

PN883

MR DOCKING: Thank you. If there's a starting point I should refer to the outline of submission that the CFMEU have filed.

PN884

THE VICE PRESIDENT: Mr Docking, assuming that I've read that, I assume that none of that is contested apart from the issues that Mr Morris has identified under 461(1) and whether or not the union has been genuinely trying to reach agreement, 461(2), whether or not the object will be further - - -

PN885

MR DOCKING: Yes. I'll deal with the discretionary point as best I can but I may have to wait until I heard it more fully articulated, but I'll - - -

PN886

THE VICE PRESIDENT: You'll get a reply submission.

PN887

MR DOCKING: Yes. Does your Honour have a copy of Ulan Coal handy?

PN888

THE VICE PRESIDENT: I did.

PN889

MR DOCKING: It's just a convenient summary and obviously it's contemporaneous.

PN890

THE VICE PRESIDENT: I think I can remember, but I did have a copy, but it's not found it's way in here apparently. No doubt my associate will tell me I'm disorganised, as usual. That's okay. Look, I do remember what it says. It's an attempt to synthesise what the Full Benches have said. I don't see it as carving out any new ground.

PN891

MR DOCKING: Exactly, and that's why it was the most convenient summary to go to. Your Honour will well know then, paragraphs 9, which deals with the Full Bench in Country Fire Authority and also 11, as I read them, make this fundamental point. One has to look at the claims that are actually being made by the union and - - -

PN892

THE VICE PRESIDENT: I'll be stealing Mr Morris' thunder no doubt, but you extracted a whole series of admissions from Mr Jordaan in cross-examination to the effect that these were all claims of the company and inferentially not claims of the union.

PN893

MR DOCKING: Yes, your Honour.

PN894

THE VICE PRESIDENT: But how do I square that away with Mr Jordaan's evidence as to claims actually being made in terms orally in meetings?

PN895

MR DOCKING: Your Honour is going to have to look at, for example - I'm doing this out of order now - near the end of his examination-in-chief, when your Honour asked a question following on from something Mr Morris had asked, he talked about "in my mind" these were issues and that's when he then added things like the casuals and the like. I'm sorry, that's not evidence your Honour can - - -

PN896

THE VICE PRESIDENT: He went a bit beyond that, didn't he?

PN897

MR DOCKING: No, your Honour.

PN898

THE VICE PRESIDENT: He gave direct evidence of specific responses attributed to Mr Jordan about, for example, the trade union training being still and issue. That was something identified by the union - sorry, the paid union meetings, paid union meetings?

PN899

MR DOCKING: Well, it's not an issue so far as the union is concerned. It rejected the company's demand. It said no, we don't accept your demand. That's the end of the matter and this - - -

PN900

THE VICE PRESIDENT: Is it Mr Jordaan's evidence still that it's still an issue, notwithstanding the company's demands being rejected, it's still an issue?

PN901

MR DOCKING: Well, he can't talk for the union. That's the problem. This idea, even given the perception of what's in his mind and transfer that to being what are the union's claims is clearly wrong, in any jurisdiction, and that's why - - -

PN902

THE VICE PRESIDENT: I confess to being a little perplexed at the jurisprudence as developed in the way that it has. It seems to me as a matter of ordinary English language that the union has been genuinely trying to reach an agreement here in this case, but I'm constrained by the authorities. The authorities make it clear that if proof of content claims are advanced and linked in some fashion to the claims for a workplace agreement, then the requirement in 461(1) can't be satisfied. I must say that I thought you were going to be telling me that on the evidence the linkage is just not there.

PN903

MR DOCKING: That's one of the points I'm going to come to and no one has suggested that, this is from the union or anything said by the union, that their demands are conditional upon reaching an agreement on the four issues that Mr Morris outlined yesterday to us.

PN904

THE VICE PRESIDENT: Save that on one view Mr Jordaan's evidence, he talked about the package and there being a package and it was a job lot, if I can put it that way.

PN905

MR DOCKING: That's the employer package, not the union's.

PN906

THE VICE PRESIDENT: But the way that he expressed in his evidence on a number of occasions was that the union was intimately involved in elements of the package, whether you call it an employer package or not.

PN907

MR DOCKING: Well, that's wrong and if your Honour looks at exhibit 10 which is the Thiess proposal, which was identified as the first time they put their proposal, and your Honour will see that all of these issues of casuals and union paid meetings and the like were all raised as an employer demand, not a union claim, and that's why exhibit 4 was tendered which had the unions logged and I confirmed in cross-examination.

PN908

THE VICE PRESIDENT: Mr Docking, I take the view that I have to take a practical hard nosed realistic common sense approach to this. The mere fact that the original log of claims doesn't include any prohibited content is not incompatible with at some time after that point prohibited content being claimed, so that there's no final position that can be reached on the basis of the original log of claims it served. I understand your point. You say that was our original log of claims, no content. Here's the company's first offer as a package, which is exhibit 10, that's the company's claims and we've not advanced any claims independently ourselves after that. I take it that's your position?

PN909

MR DOCKING: And if your Honour now looks at exhibit 11, the next document in the chain, it's conveniently shown even on page 1, it deals with items 1, the Thiess proposal, and then item 2 is the Thiess response, the CFMEU Mount Owen Lodge log of claims, and then internally your Honour will find the first seven pages are similar to exhibit 10 and I'll come ultimately to exhibit 5 which is the last word from the employer on their log, their demands, and your Honour will see from page 8 - - -

PN910

THE VICE PRESIDENT: Look, Mr Docking, in all the circumstances, it might be better if we wait until I hear from Mr Morris as to how he develops his argument rather than you, as it were, jumping at shadows.

PN911

MR DOCKING: Yes.

PN912

THE VICE PRESIDENT: Then I'll give him the chance to respond to anything you say in reply so that he gets to go last on that topic.

PN913

MR DOCKING: I outline in point form, to help him, what I'll be saying ultimately and I agree. I'm trying to apprehend elevating somehow talking to an employer about the employees' demands, somehow becomes the union's claim. It's not, and your Honour can test it easily this way. It would be the usual tenet of statutory construction, be absurd, irrational, capricious because all an employer would have to do is dangle out, we want to talk about in this set of negotiations a matter which objectively is prohibited content because you as a union respond to the demand and make comments like, I don't like that, I prefer not to have that. The union would be barred on that approach from seeking this sort of ballot. That just can't be right as a matter of statutory construction.

PN914

THE VICE PRESIDENT: Why do you think Thiess would be offering anything in relation to paid union meetings?

PN915

MR DOCKING: Why? I'm not taking the cute lawyer's response, but I'm certainly incapable of entering Thiess' mind and they for their part - - -

PN916

THE VICE PRESIDENT: I understand that there's an expectation on the part of the workers that they don't go backwards. That whatever they've got now they get to keep and maybe things get better and that there are a whole series of features of the preceding agreement that are problematic, but the company recognises in a practical sense that they're still issues, because the workers don't want to see contractors working on the site. They don't want to see trainees coming from labour hire companies. They don't want to see staff moving excavators. The company recognises in a practical sense as a result of the process that was conducted by Ms Armstrong and who ever it was on the union side of going through the agreement over two hours, the existing - - -

PN917

MR DOCKING: Four hours, two sessions.

PN918

THE VICE PRESIDENT: Two sessions, and four hours, and working out what was prohibited content. The company finishes that particular exercise understanding that it's got a series of existing "entitlements" that it's got to address.

PN919

MR DOCKING: Staff is not in there using equipment. I don't know where that's come from.

PN920

THE VICE PRESIDENT: Well, put aside staff then. Look, I must say, I'd want persuading that that's a matter that doesn't pertain to the employment relationship in any event. But putting that aside, isn't the practical view of the facts here that the company simply recognised that it had existing entitlements in favour of the union and the workers in the agreement that were going to come out that were still issues, which is why it's putting forward proposals in relation to paid union meetings?

PN921

MR DOCKING: The difficulty with that is, the so-called Work Choices legislation doesn't give you that choice, and because it's a civil wrong, a civil penalty, it can't be in the collective agreement as part of that collective agreement. So even if your Honour is saying that the employer - - -

PN922

THE VICE PRESIDENT: Which might explain why Mr Carrol is offering a letter of comfort.

PN923

MR DOCKING: Well, he offered it. It wasn't asked for. I don't think you even have to call it a common law agreement, if he wants to offer something of that sort. The important thing would be to do it.

PN924

THE VICE PRESIDENT: Suffice to say you were going to give a bullet point outline - - -

PN925

MR DOCKING: I will, your Honour. The first point is, your Honour's summary of the authority in Ulan will confirm, it's the union has to have made, as part of its claims, what is clearly prohibited content. The application fails on that basis, but Mr Jordaan's evidence is three of the claims, 22 September 2006, were withdrawn. That is, the second day in the bargaining period, left only the union paid meeting - - -

PN926

THE VICE PRESIDENT: Were withdrawn by the employer.

PN927

MR DOCKING: Yes, they never were a union demand and the employer withdrew them. Second point is, and this would be a complete answer, that there's both the examination-in-chief of Mr Jordan, the CFMEU official, and Mr Morris' cross-examination which confirms as at yesterday that there is available reliable evidence to show that the claims are not being pursued as part of getting a collective agreement or a conditional collective agreement. In particular Mr Morris' cross-examination confirmed that.

PN928

The third point is that using that employer's offer, not sought by the union, we'll give you this - your Honour used that letter of comfort, the often heard criminal term, for give ups or people giving assistance, or that's where I've often heard it, that that's the employer offer and your Honour's - - -

PN929

THE VICE PRESIDENT: Even though you're leading with your chin, I'm not going to strike back, Mr Docking.

PN930

MR DOCKING: I don't mind being dealt with occasionally, I mean, forensically speaking, but your Honour summarised in Ulan, well, if they want to enter into some separate completely unrelated to getting the collective agreement, give a letter of comfort, whatever you call it, well, that can stand by itself. The fourth point is that - and Mr Jordon, the CFMEU official, is not challenged on this, but there is simply no linkage between the four issues and the gaining of the workplace agreement or collective agreement. The CFMEU has - - -

PN931

THE VICE PRESIDENT: Well, the only discomfort I have about that, and again I really genuinely don't have a provisional view about this, is that Mr Ulan's evidence, if you take it at face value, is at odds with that. Things were said which he points to and says well, those are the things that told us that these are still live issues that we have to deal with.

PN932

MR DOCKING: What, in his mind he thought, and that's what I said, in his evidence, the cross-examination will show, 22 September, three of the four, withdrawn, agreement, not an issue and your Honour will be comforted by exhibit 5 which he confirmed in cross-examination is the last word of the employer, and your Honour can see for the casuals, the trainees, the staff, the deal is done, it's agreed and there is no prohibited content. There's, for example, for casuals acceptance that it's not only from UMMS or the other place, that casuals can be obtained, and it notes in the third column - I'm going off memory without looking at it, but you can't have the collective agreement about a third party.

PN933

There's no issue there at all and that was the importance of saying, that was the company's last written word. Every meeting, he said, they put out an update. He confirmed in cross-examination nothing was issued after 22 September or 29. 13 September stayed as the last word and that's why I cross-examined him about 22 September and he confirmed at that meeting that three of those issues, other than the union paid meeting, were just not an issue. They'd been withdrawn. I didn't have to call the other note taker. He conceded in the witness box that that was what the employer communicated at that meeting, confirmed, 22 September, withdrawn, Thiess aren't demanding it any more.

PN934

Now, the other point in terms of there was otherwise genuine agreement that there's no dispute. There were 15 meetings pre bargaining period and your Honour has now got documents like exhibit 5, exhibit 10, exhibit 11, show various stages of how the employer issued documents at different stages and that context includes, I think it's July 2006, the three year agreement that expired. There's the two meetings and I think Mr Jordaan expressed the opinion the union was saying - - -

PN935

THE VICE PRESIDENT: This is a summary, remember.

PN936

MR DOCKING: And an impasse was reached and I think the CFMEUs original submissions confirmed, you don't even need to get that far to show there was genuine agreement that an impasse had been reached. So they're really the rough outline, your Honour.

PN937

THE VICE PRESIDENT: Okay. A narration to objects, you say it doesn't - - -

PN938

MR DOCKING: I just don't understand how it's said there's confusion on the employees - I just don't understand that. It wasn't suggested to Mr Jordan.

PN939

THE VICE PRESIDENT: Yes, okay.

PN940

MR DOCKING: I'll have to wait and see how that's developed.

PN941

THE VICE PRESIDENT: Mr Morris?

PN942

MR MORRIS: Thank you, your Honour. Can I start with what I hope is an uncontroversial proposition, which is that the issues turn very much on the facts and a practical view, as your Honour put it a moment ago, a practical view of the facts, what is plain is that there's been a long period of negotiation, 15 or more meetings, and not sort of brief and perfunctory meetings, by the look of it. One has to assume that the negotiations have proceeded in a practical way with positions being exchanged, positions being modified along the way and what that indicates is that the Commission should not be limited in its appreciation of what might be the claims by what is put in formal logs or otherwise.

PN943

One needs, with respect, to look at what the position was at the relevant times so far as the positions, the claims, whether for an agreement or otherwise, that the parties respectively were advancing against one another. The first submission, or the first point we make is that during the bargaining period, that is between or after 21 September, and we would say still, but relevantly for the purpose of section 461(1)(a), during the bargaining period the union has maintained a mixture of claims and that is a mixture of claims for a workplace agreement and claims for matters outside a workplace agreement.

PN944

THE VICE PRESIDENT: That's an ambiguous phrase, claims for matters outside. Is there a claim for any binding legal obligation in relation to those matters outside? One of the things that I had to say troubled me reflecting upon the way you were likely to put your case is that there seems to be an absence of evidence, maybe you can point me to it, which will allow me to safely conclude that the union was requiring some concession on prohibited content matters as a condition precedent to reaching a workplace agreement or some concession in relation to those matters as a condition of reaching an agreement.

PN945

So just take the example of the letter of comfort that Mr Carrol - I've used the expression that I've adopted myself here - but the letter that Mr Carrol was supposed to have sent, how do I infer that the union position was we will not be reaching agreement with you unless we see that letter as distinct from, we'd like to see that, we really would like to see that, we think it's the only thing for you to do, so on and so forth, because I got the impression that - asked Mr Jordaan a question about gentlemen's agreements and his perception was that what was being sought was a matter of honour rather than a matter of legal compulsion?

PN946

MR MORRIS: Can I answer that - - -

PN947

THE VICE PRESIDENT: Bearing in mind - sorry, I'm cutting you off now in an attention deficit sort of style - in the context of the true and ultimate question being is the union genuinely trying to reach agreement, not are they advancing claims of prohibited content?

PN948

MR MORRIS: Yes. Certainly - - -

PN949

THE VICE PRESIDENT: And my impressions from Mr Jordan's evidence, I also formed the view that he was endeavouring to tell the truth, although clearly his recollection is not completely reliable, the impression I get from Mr Jordan's evidence is that the union at the end of the day was not going to seek to make any of these prohibited content issues something still in the way of reaching agreement if the other elements of the bargain could be achieved, the money, the sick leave.

PN950

MR MORRIS: Can I answer that this way. The question, for the purpose of subsection (1) paragraph (a) is whether during the bargaining period the union was genuinely trying to reach agreement and - - -

PN951

THE VICE PRESIDENT: Not during the whole of the bargaining period, as I think Vice President Watson's decision in Blue Circle makes clear. You can at one point not be genuinely trying to reach agreement, but provided you have at some point during the bargaining period been genuinely trying to reach agreement, that condition will be satisfied.

PN952

MR MORRIS: That's right, and so we're talking about the period from 21 September until, let's say, the day before yesterday. That's a period during which there were two meetings, 22 September and 27 September. The question, the practical question in my submission is whether during that period the union was putting forward a mixture of claims for a workplace agreement and claims of a different character. Now, so far as that different character is concerned, the test in my submission is not are they looking for a common law agreement. The question is whether there are preconditions or a question would be, are there preconditions being put forward for a workplace agreement that, for present purposes, would constitute prohibited content if they were to be in an agreement, prohibited content within the meaning of the Act and the regulation?

PN953

So the point I'm making there is the test is not is there a common law agreement being sought or a formal site agreement or a deed. It's whether there are
claims - - -

PN954

THE VICE PRESIDENT: No. The test is whether or not they were genuinely trying to reach agreement.

PN955

MR MORRIS: I'm sorry, quite so.

PN956

THE VICE PRESIDENT: Yes.

PN957

MR MORRIS: And in my submission the authorities, including, most recently your Honour's own decision in Ulan - - -

PN958

THE VICE PRESIDENT: Make it plain that advancing claims for prohibited content can result in a finding that the union is not genuinely trying to reach agreement.

PN959

MR MORRIS: Yes. The nub of my submission here is that it's not necessary to show that the claims are either formally included in a log of claims or that they are claims for a formal agreement. Otherwise the intent of - - -

PN960

THE VICE PRESIDENT: Just bear with me one second.

PN961

MR MORRIS: Yes.

PN962

THE VICE PRESIDENT: Yes?

PN963

MR MORRIS: Otherwise there's a ready way in which someone could avoid the obvious intention of the section and the ruling - - -

PN964

THE VICE PRESIDENT: This is fair and balance legislation.

PN965

MR MORRIS: I'm sorry?

PN966

THE VICE PRESIDENT: This is fair and balance legislation.

PN967

MR MORRIS: That's so, but the union could say, well, no, we're not looking for a formal agreement. We just want an undertaking. Or put it slightly differently - - -

PN968

THE VICE PRESIDENT: That's clear, that's clear. We want an undertaking from you. If you don't give that undertaking, there's going to be no agreement and then we'll belt you, no problem.

PN969

MR MORRIS: That's the point of my submission, yes, and in my submission on the facts here - - -

PN970

THE VICE PRESIDENT: Here where I have to deal with you, the way your case is put together, and I really genuinely find this very difficult and don't have a concluded view, is where is the evidence of that second part of the syllogism, the linkage, where in the evidence is it clear that the union is saying, we want an undertaking or else there's no agreement?

PN971

MR MORRIS: In my submission that's the evidence of Mr Jordaan. We're talking effectively from 21 September until the day before yesterday and there's been no meeting of the parties to - - -

PN972

THE VICE PRESIDENT: That may have been his perception, but when he's pressed to articulate the words that are actually uttered, it's the objective issue rather than matters of perception. I wasn't quick enough to write them all down, but I was trying to keep a weather eye out for words that would indicate condition precedent or something of that ilk and my pen wasn't moved to sort of write down something that was absolutely clear in that respect.

PN973

MR MORRIS: Yes.

PN974

THE VICE PRESIDENT: Maybe it should be inferred in the circumstances.

PN975

MR MORRIS: In my submission, Mr Jordaan's evidence does, at the very least, create a balance of probabilities finding that your Honour should make that there were positions being pressed of the kind your Honour's just described. If we're going to have a deal, this has got to be part of it. This is part of the package.

PN976

THE VICE PRESIDENT: Just one moment. Mr Morris, what do you say to this, and as far as I'm aware, this would be a novel issue under this new legislation, if the proper characterisation of the evidence was that what Mr Jordan was seeking in relation to the prohibited content matters, was nothing more than an indication to which only moral force operated and no legal force and that he recognised that he couldn't get a legally binding promise in respect of prohibited content and he was seeking only that moral comfort, would that be sufficient to exclude the case from 461?

PN977

MR MORRIS: In my submission, yes. Questions of degree obviously will arise, but you know, I can sort of think of expressions like, that's okay, but we've got an understanding that this is part of a package, or unless you give us your word on these things, you haven't got a deal, and that in my submission would be, as a matter of substance.

PN978

THE VICE PRESIDENT: So the critical thing is the linkage as a condition precedent, rather than the quality of the promise that's being sought legally binding or not legally binding?

PN979

MR MORRIS: I wouldn't want to be taken as saying that the quality was irrelevant, the quality of the - or the legal character of the concession if you like, was irrelevant. It's going to be a matter of degree but where the parties in the process of negotiation indicate as in the case of supply of casuals, trainees, staff, that in my submission goes to the genuineness of the bargaining because in effect one of the parties is saying, if you want to deal as a workplace agreement, you've got to give us your word on these others.

PN980

I think that's really the submission on it, and it matters not whether those linked or conditional positions that are sought - - -

PN981

THE VICE PRESIDENT: You say to Mr Docking's it's a company claim point, well, so what? They were in fact advanced, a la Mr Jordaan's evidence in the relevant meetings.

PN982

MR MORRIS: That's right, and the fact that they are advanced in response to the position the company puts, well, so what? What the company is putting is a - - -

PN983

THE VICE PRESIDENT: So what to this extent, if it's an expression of disappointment and a wish that it were otherwise, that doesn't necessarily amount to a claim.

PN984

MR MORRIS: No, but if what the company says is we're going to - I propose to do things this way in the future, whatever we've done in the past, this is how we're going to do it in the future, and the union says, quite rationally, well, if that's the direction you're going to go in, then we need an assurance from you about how your future intentions will be given effect to. That then becomes a matter of a claim, albeit a claim for something in the future. We're not talking about a static world here.

PN985

THE VICE PRESIDENT: A deeply profound philosophical truth.

PN986

MR MORRIS: So in my submission Mr Jordaan's evidence as a whole and I don't wish to rehearse it, makes it clear that the union was saying in relation to the use of labour hire casuals to supplement normal labour, we need a letter or we need the letter from Marcus Carrol or that Marcus Carrol spoke about to give us the basis for a package. Paid union meetings, the union is saying it seems to
be - according to Mr Jordaan's evidence is, we're not happy with an amount of money going into the salary calculated by reference to a certain number of hours. We want people only to be paid for attending meetings.

PN987

THE VICE PRESIDENT: I must say I got the impression Mr Jordan's evidence was, we'd rather have nothing than to have the salary loaded up by reference to union meeting time, not paid for by attendance.

PN988

MR MORRIS: That may be Mr Jordan's evidence.

PN989

THE VICE PRESIDENT: In other words, we can catch and kill our own so far as wage rates are concerned. We don't need you to be bulking it up by reference to this sort of rationale. But I don't recall anything that Mr Jordaan said which can properly be interpreted as Mr - I may be wrong about this and have to go and reach for the transcript - but can be interpreted as Mr Jordan saying, no, we reject that position, we want paid union meetings.

PN990

MR MORRIS: If I could ask your Honour to go to exhibit 7, which is the notes of 22 September.

PN991

THE VICE PRESIDENT: Yes. You say that's implicit in, is an issue?

PN992

MR MORRIS: Yes. In my submission taken as a whole, Mr Jordaan's evidence is to the effect that the union said this remains an issue, we want people to be paid for attending meetings and not otherwise. So - - -

PN993

THE VICE PRESIDENT: Well, it's an issue that you go back on your word and although we don't want anything reported or a recorded document, we don't want you going back on your word, which is a gentleman's - a good faith statement, we'll know how to read you the next time we negotiate if you Welch out on this sort of thing. You're going to be allowed to if you want, but you can expect that we'll belt the living daylights out of you next time if you do Welch on us.

PN994

MR MORRIS: I'm not sure that that was - - -

PN995

THE VICE PRESIDENT: That isn't what was said but why isn't that an available construction of those notes there, item 20?

PN996

MR MORRIS: In my submission that's not how Mr Jordaan put it. The substance of Mr Jordaan's evidence is, we know we can't put it in the agreement.

PN997

THE VICE PRESIDENT: We know we can't put it in any agreement. No reported or recorded document.

PN998

MR MORRIS: Yes, but we expect, however you do it, that you will honour some assurance that is said to have been given that people will be paid.

PN999

THE VICE PRESIDENT: I understand, yes.

PN1000

MR MORRIS: And then there's the matter of trainees and when one looks at this one, again looking at exhibit 7, we don't accept that it's removed from the agreement. Now, why would they not agree that it's removed from the agreement? The concern is employees will lose control over training, conditions, number and in my submission - - -

PN1001

THE VICE PRESIDENT: How was trainees prohibited content?

PN1002

MR MORRIS: The trainees are - sorry. What the company put forward was that it would reserve the right to use labour hire firm to provide trainees and by demanding - sorry. The union is demanding that that matter of trainees be dealt within the agreement to the exclusion of the company using labour hire trainees. So it is a - - -

PN1003

THE VICE PRESIDENT: Where's the evidence that - I know there's been a lot of reference to the labour hire, but where's the evidence that the union actually linked trainees to labour hire?

PN1004

MR MORRIS: Sorry?

PN1005

THE VICE PRESIDENT: Where is the evidence that the union linked trainees to labour hire?

PN1006

MR MORRIS: Again I think that's Mr Jordaan's evidence that - - -

PN1007

THE VICE PRESIDENT: But doesn't - anyway, you say Mr Jordaan linked the labour hire to trainees?

PN1008

MR MORRIS: Yes, and I think it's important to perhaps appreciate it this way. There's two potential, for present purposes, two potential sources of trainees. Direct employees of Thiess and employees of labour hire. By saying it's got to be in the agreement, it's saying it's got to be Thiess employees, and by necessity not labour hire, and that's what - - -

PN1009

THE VICE PRESIDENT: That doesn't follow, Mr Morris. At the end of the day the issue is about numbers, isn't it, trainee numbers?

PN1010

MR MORRIS: Well, it's more than about numbers. Yes, you can't look at numbers in isolation from where the numbers come from.

PN1011

THE VICE PRESIDENT: Yes. In any event I understand your submission and will go back and read the evidence carefully. Mr Jordaan links the labour hire to the trainees.

PN1012

MR MORRIS: Yes. If your Honour goes to exhibit 6, which is 13 September, the second page, trainee numbers, we need agreement in terms of numbers, we do not support a third party. Original agreement with Thiess on number. Thiess employees, a number subject to discussion, cannot agree, will replace people with casuals. Casual meaning there labour hire. Will lose control.

PN1013

THE VICE PRESIDENT: That doesn't have to mean labour hire. You can have a reference to a direct employee as a casual.

PN1014

MR MORRIS: I'm sorry?

PN1015

THE VICE PRESIDENT: You can have a direct employee who is a casual.

PN1016

MR MORRIS: I think it was clear from Mr Jordaan's evidence that casuals there means casuals drawn from UMMS, or TESA. It's an inadequate description but in terms of intent it is labour hire through one of those firms. Finally, the matter of staff and I hear what your Honour said to Mr Docking about whether or not that's prohibited content. In my submission the stipulation in a workplace agreement that limits or purports to limit an employer from using people not covered by that agreement in a particular way is not a matter pertaining to - - -

PN1017

THE VICE PRESIDENT: The employment relationship.

PN1018

MR MORRIS: The employment relationship.

PN1019

THE VICE PRESIDENT: Do you have any authority for that proposition beyond the usual general authorities in the High Court?

PN1020

MR MORRIS: Well, I'm really relying on the special definition in regulation 8.7, sub regulation (3).

PN1021

THE VICE PRESIDENT: I see. You say anything that's dealing with what happens to staff not bound by the agreement can't necessarily pertain to the relationship between the employer and those who are bound by the agreement?

PN1022

MR MORRIS: Yes, that's my submission as to what appears to be the intention. It's the reference to persons who are bound by the agreement.

PN1023

THE VICE PRESIDENT: Yes.

PN1024

MR MORRIS: So, your Honour, I think that's what I wish to put in relation to the during the bargaining period point.

PN1025

THE VICE PRESIDENT: Yes.

PN1026

MR MORRIS: If I can go now to what the union is now genuinely, or whether the union is now genuinely trying to reach agreement. In my submission, and tis is a short one, despite what Mr Jordan said yesterday afternoon, your Honour should accept Mr Jordaan's evidence, consistently with what I've been putting in relation to the subsection (1)(a) point, there has been no change put other
than - change of position put other than in the evidence of Mr Jordan and there has been no action taken to, as it were, resume negotiations, assuming Mr Jordan's position is now the union's position, there's been no action taken to, as it were, resume negotiations with the benefit of clarity or the clarity which Mr Jordan now, in his evidence, would indicate and which Mr Docking no doubt will say should be accepted.

PN1027

So it's not enough just to say, look, we're now clear, there now has to be something more happen. There now has to be some effort, some exertions by the union picking up what your Honour said about during a bargaining period you can, as it were, sin at the beginning but as long as you sort of absolve your sin, you can then continue the bargaining period in a state of clarity, as it were, but you've got to do something other than just say it in the witness statement.

PN1028

The third submission I make is anyone going to the nature of the negotiations and the union's conduct in relation to its bargaining, since 21 September, the beginning of the bargaining period, in my submission your Honour should find that the union has not genuinely tried to reach an agreement since the commencement of the bargaining period given that on 22 September, the first meeting after the bargaining period commenced, the union said we're going to apply for a secret ballot. In my submission your Honour should accept Mr Jordaan's evidence about that, but where you open by saying we've got instructions to apply for a secret ballot and then go on to reject outright the employer's package offer and then have discussions five days later reiterate the outright rejection and then subsequently go ahead with applying for secret ballot.

PN1029

This is a question that in my submission requires your Honour's judgment, but the union needs to satisfy your Honour that it has genuinely tried to reach agreement, not just in relation to prohibited content type issues, which is one - - -

PN1030

THE VICE PRESIDENT: I understand that and not just for the commencement of the bargaining period, but during the bargaining period and at the time of the application.

PN1031

MR MORRIS: Yes, and in my submission simply showing up on the 22nd and saying, we're going to apply for secret ballot, that's our instruction - - -

PN1032

THE VICE PRESIDENT: But you can't just ignore what happens before the bargaining period commences, can you?

PN1033

MR MORRIS: No, that's true, that's true, but in my submission what has - - -

PN1034

THE VICE PRESIDENT: Parties who are genuinely bargaining could reach a position where neither of them wish to yield further, despite their goodwill and bona fides and they might reach that position and continue in it for some time. Merely because they've reached the position where notwithstanding their bona fides, they need to be prepared to move further. It doesn't of itself permit a finding, does it, that they've ceased to genuinely try?

PN1035

MR MORRIS: No. I accept these are questions of judgment but genuine bargaining is a matter of substance, not form, and in my submission what we've had since 21 September is form, but when one looks at the substance it's been a case of saying, well, we're rejecting your offer outright, we had meetings before the bargaining period actually commenced rejecting your offer, the members have told us to apply for a ballot. That doesn't in my submission measure up to genuinely trying to reach agreement during the bargaining period. Genuinely trying must be more than an internal mental process on the union's behalf.

PN1036

THE VICE PRESIDENT: Yes.

PN1037

MR MORRIS: Now, your Honour, the dictionary definitions of genuine are not, I suspect, controversial. They really are very much consistent with substance and practical substance. Reading the Macquarie Dictionary, which is an older edition, but - - -

PN1038

THE VICE PRESIDENT: Make the assumption that I will look at that.

PN1039

MR MORRIS: Thank you. I should say this is a 1981 edition which seems the first edition, but it talks about being truly such, real, authentic, properly so-called, sincere, free from pretence or affectation and, as I say, in my submission, those are not descriptions that one can apply to the approach the union has taken since 21 September. The fourth submission I make relies on subsection (2) of section 461. It says that, "The Commission may refuse the application if it is satisfied that granting the application would be inconsistent with the object of this division." That takes one to section 449.

PN1040

If I could read subsection (1). "The object of this division is to establish a transparent process which allows employees directly concerned to choose by means of a fair and democratic secret ballot whether to authorise industrial action supporting or advancing claims by organisations of employees or by employees." Now in my submission for the process aimed at as what the object of the division to be transparent and to allow for a choice to be made your Honour needs to be satisfied that employees are quite clear about what it is they may be supporting or not supporting and in my submission your Honour will not be satisfied here that employees can be reasonably assumed to know that the only claims being advanced are claims for a workplace agreement about permissible material or contents.

PN1041

That is because of the infection, if you like, of the subject matter that is in controversy between the parties by these matters that are outside a workplace agreement, undertakings about this or concerns or issues about something else. A way to test this is to look at what would happen if purported protected action were now to be taken.

PN1042

THE VICE PRESIDENT: You would bring a 496 application and you would say, here is the evidence that prohibited content claims have been advanced as a matter of fact in the context of demanding concession or consent in the context of the support being advanced or provided by the industrial action. Now, give me my 496 order because it can't be protected if it's being relied upon to advance prohibited content.

PN1043

MR MORRIS: Yes, or with respect that the action is taken for a combination of things we want in an agreement and other stuff not in an agreement. Whether that other stuff is prohibited content or not. For example, one could have industrial action occur in support of a collateral claim. It may not be prohibited content, but it's not a claim in respect to the workplace agreement.

PN1044

THE VICE PRESIDENT: Yes.

PN1045

MR MORRIS: And in my submission your Honour should entertain sufficient doubt that - I withdraw that. The observation your Honour just made about the availability of a section 496 order I accept, with respect, but the point I'm really making is that there is a scheme in the legislation which should be given effect to which is a secret ballot is available where it is to authorise the taking of industrial action in relation to a workplace agreement. If people are voting with what in my submission is an element of uncertainty as to what matters are in an agreement and what matters may be the subject of a side agreement or an undertaking, then that will infect the object of the - or that will prevent the object of the division being achieved because people are voting, if you like, under a misunderstanding.

PN1046

Unless there is anything further, your Honour, those are my submissions.

PN1047

THE VICE PRESIDENT: No, thank you, Mr Morris, I've already peppered you with questions. Thank you. Yes, Mr Docking?

PN1048

MR DOCKING: Your Honour, if I can deal with those points and then I'll deal with Mr Morris' submissions. Your Honour will look at Ulan, paragraphs 5911, the essence of the ..... referred to are, it has to be the union who is clearly making claims that are prohibited content, part of a collective agreement or workplace agreement. Your Honour will see that that is clearly not so by virtue of exhibits 4 and 11 where even being 11, the company document, from page 8 sets out what the union's demands and what it sought to have in the new agreement. Your Honour will recall Mr Jordan's early cross-examination where he indicated to this effect, and I'm just going from notes, there was an exchange of views. There were the union's 14 items, the union was happy with the current agreement, but understood that they had to address any areas of prohibited content.

PN1049

Your Honour knows the 14 items are what's listed in exhibit 4 and exhibit 11 which sets out the company's summary of those claims. Both Mr Jordan and Mr Jordaan confirmed that the union's claims, its demands for the workplace agreement have always been those 14 items. I confirm that today, that they haven't changed. The one exception was, I think it was salary sacrifice.
Mr Jordan said, "Look, they've got an understanding or a better understanding of prohibited content." It was accepted that - I think it was salary sacrifice couldn't be pursued and your Honour can see it's not an issue in these proceedings of it being pursued and somehow disentitling the application. I'm only raising that as a matter of fairness that Mr Jordan did point out that there was one matter that - - -

PN1050

THE VICE PRESIDENT: I think the law on that is a little bit ambivalent to say the least.

PN1051

MR DOCKING: It shows a cautious approach the union has taken and your Honour has heard today in cross-examination - - -

PN1052

THE VICE PRESIDENT: It's got to do with whether or not the - how the sacrifice arrangement is prepared, but anyway. I think Schefenacker actually dealt with that and distinguished between the two circumstances. Anyway, that's another issue. You were saying?

PN1053

MR DOCKING: That it was the July bargaining unit meeting delegated the task to Ms Armstrong and one of the lodge officials where they had gone through in two 2 hour sessions, totalling four hours, what parts of the current certified agreement had to be removed as prohibited content. In cross-examination today, Mr Jordaan confirmed that what had to come out, it was accepted, that bit of clause 8, casuals, which dealt with at the moment the parties had to agree to the supply arrangements. He confirmed it's an agreed issue, that's out. It can't be in there, otherwise the existing clause 8 gives the employer, on the employer's interpretation, a discretion to use casuals as otherwise required. Your Honour will see that word is used.

PN1054

Nothing was to be changed for clause 12.5, apprentices, traineeships, because there's no stipulation in there about numbers or the like of trainees and as Mr Jordaan confirmed, and your Honour will see the very last sentence in 12.5 says:

PN1055

Management will decide on details regarding the development and implementation of the apprentice and traineeship programs.

PN1056

There's already this existing obligation and the union hasn't sought in its log or otherwise to vary that. What was agreed in Mr Jordaan's cross-examination is that clause 30, the monthly union meeting clause, had to come out. Both parties agree it was prohibited content and it's out. So your Honour would be satisfied that the union has not clearly put as part of its claims for a workplace agreement or a collective agreement any prohibited content. It therefore is and has been genuinely negotiating.

PN1057

It's not just some semantical matter of form distinction, it's a matter of substance. Both in his oral evidence Mr Jordaan has used the expression "our package, our offer" and your Honour will find in documents like exhibits 10 and 11, there is that fundamental distinction between what the employer package or offer constituted.

PN1058

Something I think Mr Morris was silent on, although I originally did touch upon it, look at the bargaining period, was there any prohibited content part of the union's claims. It's impossible for three of the claims to be so characterised. They are the casuals, as the first claim. If your Honour looks at exhibit 5, the last word from the employer, it will be seen at page 3, last row, use of casuals. There's the two dot points and in cross-examination Mr Jordaan said, "That's just not the employer's position, it was agreed by the union, namely casual labour can be sourced from alternative providers to UMMS/TESA and it was an agreed position that casuals can be used to cover overtime." The extent to which both parties recognised this could not be in any collective agreement was the additional note in the third column, agreement cannot deal with third parties.

PN1059

Then when I, I think the transcript will show, cross-examined - go to
22 September - your Honour knew that was day two I think of the bargaining period, the employer at that meeting on that day confirmed at that meeting with the union that it was agreed, the casuals' position as per 13 September was okay. Where's this idea that they've advanced some claim as part of a collective agreement that there was a dispute over the use of labour hire for casual.

PN1060

Your Honour will find yesterday Mr Morris in cross-examination suggested that to Mr Jordaan, and it was rejected, and your Honour at one stage I think was like me, looking at the notes that were being cross-examined upon and saying, "Where's that reference to labour hire?" That's not there even in the notes and it's a very curious position. Your Honour will know that it was at my invitation exhibit 5 got tendered by Mr Morris. One might assume, I might be wrong, the employer wasn't going to put exhibit 5 in this last word - I'm sorry, Mr Morris says he was. He says that so be it.

PN1061

THE VICE PRESIDENT: I have no doubt whatever that he's telling the truth when he says that.

PN1062

MR DOCKING: That's what I said, your Honour. That's what I said, if Mr Morris says it, so be it. Your Honour will find - it's a really curious position, but you actually distribute, and I've got this in cross-examination today, this is your - the employer's document about the last word of where positions have reached. It's what you used for your own communication sessions with the employer, it's own meetings, why you would attempt to go behind exhibit 5 and say some sort of incomplete notes with a mix of perceptions, grabs of what - - -

PN1063

THE VICE PRESIDENT: It does because you're permitted to.

PN1064

MR DOCKING: Your Honour understands what I'm saying and the system that I established in cross-examination of Mr Jordaan is, this didn't go out and get distributed. Ms Armstrong created it and Mr Jordaan - and I'm not criticising him for this - settled it and made sure that it was accurate. That's what went out, so for the meetings that took place both employer and union, the employer says, "Well, we provided the information in this form." I'll come to that later when it's suggested somehow there could be some misunderstanding and what some misunderstanding created I'm not sure, as suggested by the employer. It's very curious. That's the first point.

PN1065

Three, your Honour, I just conclude will be withdrawn as at 22 September. They're the casuals, the trainee numbers and the demarcation and that's why I cross-examined Mr Jordaan. I got it from his own mouth that he agreed that casuals was okay as per exhibit 5; trainees were removed from the log of claims by Thiess and he also agreed Thiess had removed the staff issue and they weren’t going to make any issue of it.

PN1066

I've already commented in terms of trade union meetings that your Honour will look at exhibit 5 to confirm what was the position, the agreed position between the parties that payment for union meetings is prohibited content under Work Choices. Your Honour is right, Mr Jordan explained yesterday that the union's position was it didn't want the salary loaded with some extra payment said to be for union meetings and he went on to explain how he didn't want that to be part of what was the percentage increase that the union was otherwise seeking separately and independently of any union meetings claimed.

PN1067

I go to the second point and your Honour will pick this up in - it's part of paragraph 6 of Ulan and there is reliable evidence to show that the claims were no longer being pursued or were otherwise irrelevant to the negotiations of the collective agreement. It's the evidence of Mr Jordan yesterday. I obviously don't have notes of the examination-in-chief but I think your Honour's questioning today of Mr Jordaan give some indication of the gist of that. My note was your Honour said to Mr Jordaan that Mr Jordan gave evidence to the effect that he was conscious of what was prohibited content, that it couldn't be subject to agreement and things in the old agreement need to come out and at no time trying to reach a workplace agreement with prohibited content. Mr Jordaan today answered to the effect of, "That's how he presented himself yesterday" and then your Honour sought to clarify that and you said. "Well, that was just part" - I think it was something like the workplace agreement and Mr Jordaan said, "Well, that's correct."

PN1068

There seems to be no issue that that evidence existed yesterday and then I do need to go - and they'll only be rough notes, your Honour - to the cross-examination of Mr Morris of Mr Jordan yesterday.

PN1069

THE VICE PRESIDENT: Mr Docking, you can just summarise this because I'm - I would dearly love to be able to do something extemporaneously. I just don't think I can do the arguments and the evidence justice so I'm going to reserve and try and do something quickly, but you can assume I'll read that evidence carefully.

PN1070

MR DOCKING: Your Honour will find the topic casuals. It was cross-examined in - it's no issue for the union. It's not a matter at all for inclusion - or influence the conclusion of the workplace agreement . Both parties knew it was prohibited. It was raised as housekeeping. He was happy to be represented about this but it's a matter for the discretion of the company. He confirmed that so I just don't know how it can be said in the face of what you're directly cross-examining him, you don't impugn it, that he could say that somehow this became a condition precedent or a necessary link to get a collective agreement.

PN1071

THE VICE PRESIDENT: I'll tell you how, because you say there's other evidence that proves the contrary and it ought be preferred.

PN1072

MR DOCKING: Your Honour saw the difficulty, and I'm not criticising Mr Morris because he doesn't have transcript either, when your Honour squarely put, "Well, where's the evidence? Where's the word spoken?" and I was like your Honour trying to quickly get notes down today and all it was it was in the mind at best of Mr Jordaan but I thought that evaporated once he admitted 22 September, three of them were off - the casuals I'm dealing with at the moment, it was already agreed. There was no issue. There was no claim. The employer was happier - I think that's where he ultimately agreed that the union acquiesced or conceded the demand of the employer.

PN1073

Then your Honour will find when looking at the transcript for paid union meetings, he confirmed, it was agreed it had to come out of the agreement. He also confirmed there's no demand at all by the union for pressing paid union meetings. Then for the trainee numbers, he confirmed that it's not an agreement issue and your Honour will also find that he confirmed that there's Mr Jordan, that Mr Jordaan said he was withdrawing his claim. This was about the trainee numbers. We know Mr Jordaan agreed about that.

PN1074

The same for the demarcation. Mr Jordan said yesterday the company was withdrawing its position. Your Honour will be able to check the various times Mr Morris indicated through Mr Jordan in cross-examination that some of these issues, they had already been communicated to the CFMEU's members and when your Honour gets the transcript you'll be able to check those more precisely rather than going off rough notes.

PN1075

Again, your Honour, that's a complete answer. It's the reliable evidence of Mr Jordan and I'll come to it later when dealing with Mr Morris's submissions because it seems the employer is driven to effectively alleging a breach of a civil penalty provision that Mr Jordan or somebody from the CFMEU is misrepresenting the position about prohibited content and collective agreement or seeking to have it included. I'll come to the point where your Honour should apply Briginshaw v Briginshaw, if that's the allegation, despite the direct evidence that no - these are not part of the collective agreement sought by the union; no, the are not the union's claims; no, there's not a condition or a linkage for these to get a collective agreement.

PN1076

Your Honour, the next point is really this issue I've dealt with before Mr Morris made submissions. It's the company who's made this offer, for example, without giving a letter of comfort and I adopt what I said before. Fourthly, again your Honour will get the transcript and see Mr Jordan's examination-in-chief and
cross-examination where the essence of that is there is no link or condition between these four claims.

PN1077

The fifth point, your Honour will be able to go through the history and see the context of how many meetings and the various positions that were put back and forward to see, in my submission, there was the relevant, genuine agreement sought to be made by the union.

PN1078

Can I then go to some points Mr Morris made and deal with those. I do make the point that your Honour should apply Briginshaw v Briginshaw to these employer allegations that there is a condition or linkage between the four matters and the union making a certified or workplace agreement. Your Honour would know, for example, section 365 and make it a contravention of the Act if a person seeks to include in a term of such an agreement a term containing prohibited content. Subsection (2) provides that there's a civil remedy provision. There's also section 366 about misrepresentations about prohibited content. Your Honour would well remember Briginshaw v Briginshaw talks about - - -

PN1079

THE VICE PRESIDENT: I understand about Briginshaw v Briginshaw.

PN1080

MR DOCKING: Of needing exact proof, et cetera, indefinite testimony and speculation. That's what the employer is arguing, in my submission, your Honour should do.

PN1081

Your Honour won't find that anybody on behalf of the union says unless you've got your word on these, there's not a deal on a collective agreement. Picking up your Honour's exchange with Mr Morris, in my submission moral clause as opposed to legal clause would not take one outside of genuinely negotiating.

PN1082

Can I then confirm, your Honour - I've probably dealt with some of these issues. As your Honour goes through each of the four topics, the trainees, casuals, staff and union meetings, your Honour will be able to look at the differences between what the perception of Mr Jordaan was and the evidence about what words were actually said to be spoken. Your Honour has got, might I say, the inconsistencies in any event in his evidence between exhibit 5, the final say of the employer and his concessions made in cross-examination about three of the matters were withdrawn, not at issue any further.

PN1083

Your Honour should look at those clauses I cross-examined about in the current agreement. This idea of trying to include something in the existing trainee clause, there is nothing about numbers in that.

PN1084

Your Honour in terms of these issues about not genuinely trying to reach an agreement during the bargaining period, your Honour will, I think, quite correctly take into account the context of the 15 meetings that went forward before that period. Your Honour will recall Mr Jordaan's evidence that he said 22 September meeting was to get the feedback of the union in response to the employer's package or proposal. He confirmed he had to go back after 22 September meeting to Xstrata and Thiess and it was the employer who was to come back on 27 September 2006. Your Honour will have the cross-examination near the end where he confirmed he basically came back and said, "Well, we've got nothing else to offer you. We can't alter our position." That was the position taken by the employer.

PN1085

Then, your Honour, finally on Mr Morris's point about there not being a transparent process, I would ask your Honour to look at exhibit 4, the log. No one suggested that the union or its employees didn't understand that was the union's log and the employees' log. Your Honour will see there's 293 employees all of whom are members of the union. That's covered in Mr Jordan's statement. Your Honour will see, for example, exhibit 11 that even the employer in what it distributed at that stage distinguished between the two, what was the company package and offer, demands, as opposed to what was the union's demands.

PN1086

Your Honour again will be able to look at Mr Jordan's evidence where for some of the items Mr Morris got him to confirm that he'd already relayed this to employees. It's really creating an onus that doesn't exist but the employer wants to say, "They might be confused," and therefore the union, the applicant in this case has to call evidence about an issue that I wasn't aware was suggested was at large. It was something raised at the end that your Honour somehow might infer, absent a scintilla of evidence, that there's actual confusion or doubt, that employees don't really understand. It would be an even more curious position if the employer says, "Well, actually we're the ones responsible, we put out exhibit 5. In exhibit 5, let's look at the four items. We confused you somehow."

PN1087

At the bottom of page 3 we've set out there's an agreed position on casuals which it was agreed that agreement cannot be reached about third parties. Casuals was agreed. Your Honour will see page 4, paid union meetings. The employer sets out well, payment for union meetings is prohibited content under Work Choices and then for the other two items, as Mr Jordaan confirmed in cross-examination, the employer said, "These are removed from the log of claims." Let's look at the four items about which Mr Morris took some issue. How is it suggested there could be any room with some hypothetical employee or employees about the status of even the employer claim? Unless there was some other matter, they are the submissions, your Honour.

PN1088

THE VICE PRESIDENT: Thank you, Mr Docking. Mr Morris, you've got a chance to respond.

PN1089

MR MORRIS: Just a few very short points, I hope. The first relates to paragraph 11 of your Honour's decision in Ulan and I just raise this - I may be mistaken but I think there may be a "not" missing in paragraph 11 where your Honour after underlining a passage from a Full Bench decision says:

PN1090

It was in these circumstances the Full Bench concluded the Commissioner could have been satisfied that the union was genuinely trying to reach agreement.

PN1091

I think that actually is, "The Commissioner could not have been satisfied."

PN1092

THE VICE PRESIDENT: Thank you, Mr Morris, I'm deeply embarrassed by that.

PN1093

MR MORRIS: That's certainly not the object, your Honour.

PN1094

THE VICE PRESIDENT: No, no, I understand that's not the object. It doesn't matter how many times one reads these things, and that was prepared in great haste, at least the meaning is clear.

PN1095

MR MORRIS: There but for the grace of God, your Honour.

PN1096

THE VICE PRESIDENT: Okay, thank you.

PN1097

MR MORRIS: Just as Mr Docking relies on that paragraph, then so do I.
The second aspect that I wish to deal with is - - -

PN1098

THE VICE PRESIDENT: I'll have to have words with my proof reading associate.

PN1099

MR MORRIS: I'm sorry, your Honour?

PN1100

THE VICE PRESIDENT: But otherwise perfect.

PN1101

MR MORRIS: The buck stops somewhere. It formed part of Mr Docking's submissions that on behalf of the company I was submitting that the union was claiming prohibited content in the agreement. That is absolutely not what we are submitting.

PN1102

THE VICE PRESIDENT: No, I understand your case is about prohibited content outside of the agreement.

PN1103

MR MORRIS: That's so. The next point is - - -

PN1104

THE VICE PRESIDENT: You would say that's a straw man that's being set up.

PN1105

MR MORRIS: Correct, yes. I was being uncharitable. Your Honour, the next matter was exhibit 9 or exhibit 5 which Mr Docking places great reliance on as being the definitive final position in the negotiations. That, in my submission, is a fallacy and it's revealed - - -

PN1106

THE VICE PRESIDENT: Exhibit 5 or exhibit 9? I think exhibit 5 was - - -

PN1107

MR MORRIS: Exhibit 9 was the marked up copy or version of exhibit 5.

PN1108

THE VICE PRESIDENT: Yes, but there's no suggestion that exhibit 9 is anything other than Mr Jordaan's internal copy of the document for his own purposes.

PN1109

MR MORRIS: That's so.

PN1110

THE VICE PRESIDENT: Exhibit 5 is the one that is supposed to have been circulated to employees and used to address people at meetings.

PN1111

MR MORRIS: Yes. According to that exhibit 5, if I can refer to that specifically, is that it represents plainly on its face a terse statement in dot points for the most part of the company's position.

PN1112

THE VICE PRESIDENT: I thought there was evidence indeed, also led by you from Mr Jordaan, maybe it was in cross-examination, to the effect that this was more than just a company position, it was also recording where appropriate where the union had agreed.

PN1113

MR MORRIS: I think this represents how the company viewed matters as they were at 13 September, including in certain instances the union's position.

PN1114

THE VICE PRESIDENT: Yes, I understand that.

PN1115

MR MORRIS: But the matters we say infect the bargaining are matters that are advanced in the feedback by the union on 22 and 27 September. The union can't disown what we say is the position that that was put on 22 and 27 September or for that matter that it put on 13 September so far as it puts elaborations or qualifications or other commentary about its position.

PN1116

The next submission I make is that where there are differences between Mr Jordaan's evidence - and I put this formally, where there's differences between Mr Jordaan's evidence and Mr Jordan's evidence, your Honour should prefer Mr Jordaan's and your Honour has not had tendered any notes of Mr Jordan in the course of these discussions. Your Honour does have Mr Jordaan's and I think your Honour would accept, for instance, that Mr Jordan has an imperfect recollection in quite a significant way of the meeting on 13 September. Your Honour may recall Mr Jordan saying it was a 10 minute meeting. Mr Jordaan explained how the company went through its points, there was a break, then the company people were called back and there was a commentary in relation to the claim. In my submission, and I don't put this - - -

PN1117

THE VICE PRESIDENT: I understand. You're not suggesting that there's any finding that Mr Jordan was dissembling in his evidence but rather when it comes to reliability, you prefer Jordaan.

PN1118

MR MORRIS: That's so, your Honour.

PN1119

THE VICE PRESIDENT: One should prefer Jordaan, yes.

PN1120

MR MORRIS: That's what I put. Those are my submissions if your Honour pleases.

PN1121

THE VICE PRESIDENT: Thank you. I'm conscious that the Act enjoins the Commission to do what it can to conclude these applications within two days. I endeavoured to list it promptly for that reason and sat late yesterday for that reason and offered to sit early this morning for that reason, but I'm faced with a situation where I don't think I can do justice to the case if I try and make an extempore decision now and I do need to see the evidence. It will take, I suspect, the best part of a day before the transcript will be fully ready so I'll endeavour to have a decision - well, I'll indicate a decision one way or the other by Thursday morning first thing.

PN1122

Mr Docking, I take it that's going to impact upon the timetable in the event the decision goes your way. Can you just turn your mind to that and send me a note or contact my associate about timetables. You shouldn't take any indication that I'm going to find for you. I genuinely am perplexed about what the correct outcome of this is. That's not to undermine your submissions but submissions to some extent pass a bit like ships in the night.

PN1123

MR DOCKING: Yes, I accept that, your Honour.

PN1124

THE VICE PRESIDENT: If you could just send me a note as to the varied timetable and assuming a decision on Thursday morning, that would be handy - or at least some communication Mr Morris, I don't think that in fact actually impacts upon you. If you would like to see it, you can.

PN1125

MR MORRIS: It will in certain respect, for example, providing a list of employees, there are - - - .

PN1126

THE VICE PRESIDENT: Can you just make the assumption that you'll have the same timeframe in the proposed orders. The only issue is whether the start date moves back, you know, X-days or Y-days or zero days.

PN1127

MR MORRIS: It would be a help perhaps, just so we don't run into - - -

PN1128

THE VICE PRESIDENT: Mr Docking, can you just give that to Mr Morris.

PN1129

MR DOCKING: Yes, certainly. Your Honour, quickly, can I just raise one short point if Mr Morris wants to respond.

PN1130

THE VICE PRESIDENT: Please don't.

PN1131

MR DOCKING: It's two lines effectively. Your Honour, Mr Jordan attended the union meetings at which 13 September proposal was discussed. There's been no suggestion he misled anyone or that there was some confusion at that meeting about what the union's claims were.

PN1132

THE VICE PRESIDENT: I understand your point. I thank counsel for their assistance. It's a pleasure to have competent assistance on both sides of the case. I'll reserve my decision and you'll have an outcome by Thursday morning.

<ADJOURNED INDEFINITELY [4.18PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GERHARDUS ADRIAN JOHANNES JORDAAN, SWORN PN448
EXAMINATION-IN-CHIEF BY MR MORRIS PN448
EXHIBIT #6 NOTES DATED 13/09/2006 PN489
EXHIBIT #7 NOTES DATED 22/09/2006 PN489
EXHIBIT #8 NOTES DATED 27/09/2006 PN492
EXHIBIT #9 COMPANY POSITION DOCUMENT WITH TICKS PN512
CROSS-EXAMINATION BY MR DOCKING PN613
EXHIBIT #10 THIESS PROPOSAL DOCUMENT DATED 04/05/2006 PN712
EXHIBIT #11 LODGE PROPOSALS DATED 09/05/2006 PN823
THE WITNESS WITHDREW PN862