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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15945-1
COMMISSIONER EAMES
BP2006/3503 BP2006/3523
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
VISYPAK OPERATIONS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3503)
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
VISYPAK OPERATIONS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3523)
MELBOURNE
10.33AM, THURSDAY, 19 OCTOBER 2006
PN1
MR B TERZIC: I appear on behalf of the organisation known as the AMWU. While I'm giving my appearance I might indicate that we've noted that there's no representative from the CEPU and - - -
PN2
THE COMMISSIONER: What a surprise.
PN3
MR TERZIC: And we're trying to find out why they haven't appeared and we might have to deal with that later and give a further appearance.
PN4
THE COMMISSIONER: I'm grateful that you're making the inquiry anyway,
Mr Terzic, thank you.
PN5
MR S WOOD: Commissioner, I think leave has been granted for me to appear in 3503/2006 previously.
PN6
THE COMMISSIONER: Yes.
PN7
MR WOOD: I won't seek leave to make appearance in - is it 3523, the other one that's listed today?
PN8
THE COMMISSIONER: Yes.
PN9
MR WOOD: For the reasons that Mr Terzic says, that until that application comes to be pressed by the CEPU I don't think it would be fair for me to make an application for leave when they can't be heard to respond to it.
PN10
THE COMMISSIONER: No, I follow. That's fine. All right, Mr Terzic.
PN11
MR TERZIC: Commissioner, I propose to commence these proceedings by calling two witnesses. Statements have been filed and served
as per directions. The first witness I intend to call is Mr Mavromatis. I would ask that
Mr Mavromatis be allowed to remain in the court room at the bar table to give me instructions throughout these proceedings. I think
as being first witness there's problem with that anyway.
PN12
THE COMMISSIONER: If he's first witness there shouldn't be a drama.
PN13
MR TERZIC: No, so I don't need to make that submission. But at any rate, I'll have Mr Rogers withdraw while Mr Mavromatis gives his evidence.
PN14
THE COMMISSIONER: All right, thank you.
PN15
MR TERZIC: So I call Mr Mavromatis.
PN16
MR WOOD: Commissioner, before Mr Terzic does can we say that Mr Joyce is our witness. I would need him to be in court to give instructions. I think that is the normal practice, Commissioner, that one is entitled to one instructor in these proceedings.
PN17
MR TERZIC: It's not opposed, Commissioner.
THE COMMISSIONER: No problem with that, good. Thanks, Mr Terzic, that's fine.
<TONY MAVROMATIS, SWORN [10.36AM]
<EXAMINATION-IN-CHIEF BY MR TERZIC
PN19
MR TERZIC: You are Tony Mavromatis, is that correct?---Correct.
PN20
And your professional address is level 4, 440 Elizabeth Street, Melbourne?
---Correct.
PN21
And you're a union official working for the Australian Manufacturing Workers Union?---Metals division, correct.
PN22
Yes. And Mr Mavromatis, in relation today's hearing you've made two statements, haven't you?---I have, yes.
PN23
Do you have copies of those statements with you?---Yes.
PN24
As made are they correct?---I believe so, yes.
PN25
And true?---Yes.
PN26
Commissioner, I think you would have on file two statements made by
Mr Mavromatis. One was made for an earlier application and the second was made for the present application.
PN27
THE COMMISSIONER: I've certainly got the latest affidavit.
PN28
MR TERZIC: Well, to save time I can just give a copy of the earlier of the two.
THE COMMISSIONER: All right, thank you.
EXHIBIT #T1 FIRST STATEMENT OF MAVROMATIS
EXHIBIT #T2 SECOND STATEMENT OF MR MAVROMATIS
PN30
MR TERZIC: And I seek to have that admitted as Mr Mavromatis'
evidence-in-chief and there's nothing further.
PN31
THE COMMISSIONER: You rely on the statements?
PN32
MR TERZIC: Yes, Commissioner.
THE COMMISSIONER: All right, thank you. Yes, Mr Wood.
**** TONY MAVROMATIS XN MR TERZIC
<CROSS-EXAMINATION BY MR WOOD [10.39AM]
PN34
MR WOOD: Thank you, Commissioner. Commissioner, I have to apologise in advance if I fumble a little bit during the cross-examination because I don't have the benefit of the rather sturdy lectern that we used to have.
PN35
THE COMMISSIONER: Yes, we've got a problem with all of that. It would be nice we could back to the original lecterns, but that's fine. Your comments are noted for the record and I'll pass them on to those that should be aware of them.
PN36
MR TERZIC: I might just concur with that.
PN37
THE COMMISSIONER: Good, all right.
PN38
MR WOOD: At least we have some agreement here this morning, Commissioner.
PN39
THE COMMISSIONER: Yes, that's fine.
PN40
MR WOOD: Mr Mavromatis, have you seen a witness statement of Mr Robert Joyce that was dated yesterday, 18 October 2006?---I did have a perusal through it this morning, yes, a quick perusal, yes.
PN41
And that statement runs to some 16 paragraphs and has got four exhibits, RJ6 through to RJ9, is that the statement you looked at?---I can't answer that.
PN42
If I could just have it handed to you?---The question was, sorry?
PN43
It runs for some 16 paragraphs and has four exhibits, RJ6 to RJ9?---Yes, I think that's what you're talking about, yes.
PN44
Commissioner, I'm happy to prove this statement through Mr Joyce when he comes to give evidence but I'm equally happy to have it marked now. I'm going to ask the witness about the earlier statement on 12 September 2006 so it might be easier to mark the earlier one.
THE COMMISSIONER: Yes, I'm happy to mark this now.
EXHIBIT #W1 STATEMENT OF MR JOYCE
PN46
MR WOOD: And Mr Mavromatis, have you seen an earlier witness statement of Mr Joyce dated 12 September which runs to some also 16 paragraphs and has five exhibits, RJ1 to RJ5?---I don't think so.
**** TONY MAVROMATIS XXN MR WOOD
PN47
You haven't seen that statement?---I don't think so.
PN48
I might come back to that in a moment, Mr Mavromatis. If I can ask you about the later statement, that is the one that's dated yesterday, I take it that you accept it's accurate insofar as it describes the fact that there have been 15 meetings held to discuss the proposed new EBA, is that right?---It would be close to it, maybe 15/16, something like that, yes.
PN49
I don't want to dwell too long on this, but I take it the minutes were prepared for these meetings by Mr Joyce?---The minutes were
prepared for Mr Joyce for
Mr Joyce.
PN50
I beg your pardon?---The minutes were prepared by Mr Joyce for Mr Joyce.
PN51
I see?---We kept our own minutes and in the negotiations it's clear their minutes re for them and our minutes are for ourselves.
PN52
I haven't seen any minutes that you kept. You've got minutes for each of those meetings?---Yes, I've got mine.
PN53
And you've got them there in the witness box with you?---Correct.
PN54
Have you had a chance to have a look at those minutes to confirm whether or not there were 15 or 16 meetings?---I can go through it if you wish.
PN55
Well, if you think there's a 16th meeting that Mr Joyce has missed out I would like to know about it. If you don't think there is then I won't bother?---I will tell you how many meetings I think I've had.
PN56
Very well. May I take a seat while Mr Mavromatis goes through his notes, Commissioner?
PN57
THE COMMISSIONER: Yes, of course?---I've got listed 12.
PN58
MR WOOD: You've got 12. Which ones are - is that because you've only been to 12 of the meetings or because your notes are somehow incomplete or is there some other explanation?---Sometimes there's been at least two occasions when I've been on holidays, there's been other meetings where, you know, I haven't been there and other organisers have been there.
**** TONY MAVROMATIS XXN MR WOOD
PN59
I see?---I mean, you know, we're pretty busy.
PN60
Mr Mavromatis, do you see in Mr Joyce's statement he says there have been 15 EBA meetings and that you personally were at 12 of them? Do you see in paragraph 5 of his statement?---Yes.
PN61
Do those dates that he gives, that is the 12 dates, correspond with your records?
Could I just take a seat again, Commissioner?---I don't seem to have meetings for 19 May.
PN62
For 19 May?---Yes, which is the first one. I do have 8 June, 27 June.
PN63
THE COMMISSIONER: Just to try and short circuit some of this, you indicated, Mr Mavromatis, that you were at 12 meetings. There's
12 listed at point 5 of
Mr Joyce's statement, you say you weren't at the 19th, so there's one outstanding, is that right?---Well, all my saying is that, yes,
I don't have minutes of the 19th.
PN64
Is it reasonable to say that there had been 15 meetings and that at 12 of them you were there?---It's reasonable to say that, yes.
PN65
MR WOOD: Thank you, Commissioner.
PN66
Mr Mavromatis, the bargaining period notification in this matter is dated 14 June 2006, do you have a copy of that document in front of you?---Correct, yes.
PN67
And at that bottom of that document it talks about the AMWU extending to your preparedness to negotiate an agreement which takes into account the individual circumstances of your business and it says -
PN68
The AMWUs relevant representatives will meet with you face to face at reasonable times and they will consider to respond to your proposal within a reasonable time. To arrange a meeting please call the AMWUs relevant represent, Tony Mavromatis.
PN69
Do you see that?---Yes.
PN70
And you were in fact the relevant representative of the AMWU for the purposes of these EBA negotiations?---Correct.
**** TONY MAVROMATIS XXN MR WOOD
PN71
And you spoke on behalf of the AMWU even when Mr Rogers was present?
---Mr Rogers speaks freely, I suppose.
PN72
But when Mr Rogers was present, even when Mr Rogers was present you were still acting as the representative for the AMWU?---I think both of us act as representatives for the AMWU.
PN73
I will ask the questions again later but I'm just asking about you at the moment. You were acting as a representative of the AMWU?---I am acting as a representative of the AMWU.
PN74
Even when Mr Rogers was present?---Even when Mr Rogers is present, yes.
PN75
And as I understand Mr Joyce's evidence and I don't understand your evidence to be any different, Mr Mavromatis, all the claims, and
I think there are 24 in total, on the bargaining period notification dated 14 June 2006 were pressed by the AMWU right up to the
meeting, the 14th meeting on 11 October, is that fair?
---Yes, it's fair to say that it's been clearly stated that all these claims are ambit claims.
PN76
I understand that?---Yes.
PN77
You say and I think you said that repeatedly in some of the meetings?---Yes.
PN78
But you didn't withdraw any of the claims up until 11 October?---Yes, correct.
PN79
And you didn't modify any of the claims up to 11 October?---Correct.
PN80
And you might not be able to answer this, Mr Mavromatis, but you'll notice that Mr Joyce says that the total cost of those claims, that is, the claims that you maintained up until 11 October, would amount to a total increase over the three year term of the agreement of about 200 per cent, do you see that in paragraph 12 of the witness statement?---Page 12.
PN81
THE COMMISSIONER: Point 12 on page 3 of Mr Joyce's statement?---Okay, yes.
PN82
MR WOOD: Now, you might not be able to answer this question because you might not have engaged in any costings yourself but do you accept that that costing is accurate?---You're right, I can't answer that question, but it's never mentioned. I don't think it's ever been explained at the negotiation table and had been explained the way it's been explained here.
**** TONY MAVROMATIS XXN MR WOOD
PN83
I understand. Although your initial bargaining period notice said that the AMWU was prepared to take into account the individual circumstances of your business, I imagine that you as the relevant representative of the AMWU have not costed your claim at any stage?---Our claim is ambit.
PN84
I understand that. So the answer to my question is yes. You have either costed it or you haven't, Mr Mavromatis, I mean it's a very
straight forward question?
---Well, it's not hard to look at it and sort of put a rough cost to it.
PN85
No, I'm not asking you to do it on the box on the fly now. I'm asking you whether you have done it up until the time you came into the witness box at five to 11 this morning?---Well, I've supposed we've costed it when we wrote out our claims.
PN86
So I take that to mean you haven't actually costed it? I'm not critical of this,
Mr Mavromatis.
PN87
THE COMMISSIONER: It's just a question of has the claim been costed or not?
---Well, it has and it hasn't I suppose because it's not hard to cost it, I wouldn't think.
PN88
Well, has it been done or hasn't it been done?---Well, let's say it hasn't.
PN89
It hasn't?---Let's say it hasn't.
PN90
MR WOOD: And I take it that your answer is the same in relation to the modified claim, that is, the claim as modified in the meeting
of 11 October 2006?
---Correct.
PN91
And again I assume I know the answer to this but I'll just ask you formally, you see Mr Joyce says there he's arranged to have that modified claim costed and he estimates that it's around an 80 per cent increase over three years. I take it that you can't agree or disagree with that because you haven't in fact costed the modified claim?---Correct.
PN92
And you will see in Mr Joyce's witness statement he says at paragraph 13 that he intends at the next meeting, which I take it would be next Wednesday, 25 October, to explain how he has calculated the total cost of the claim?---That's what it reads, yes.
**** TONY MAVROMATIS XXN MR WOOD
PN93
And that would be something that you would be - information you would be grateful to receive I take it?---Yes.
PN94
Because that would then enable you to work out what the total cost of the claim is?---Yes.
PN95
And work out whether Mr Joyce's estimate is correct?---Yes.
PN96
And perhaps come to an understanding of what might be a reasonable claim to make?---Possibly, yes.
PN97
Just excuse me for one moment, Commissioner. I won't formally put the earlier statement to Mr Mavromatis, I'll do that through Mr Joyce. I think it's all been subsumed by the later material anyway, Commissioner.
PN98
THE COMMISSIONER: All right.
PN99
MR WOOD: Nothing further in cross-examination.
PN100
MR TERZIC: Commissioner, I would seek that there be a slight deviation in the way these proceedings are now conducted. The deviation simply would be that from now on I can give an appearance on behalf of the CEPU and the CEPU will be pressing for an order. To do that I formally would have to appear in the capacity as an agent of which I would have to seek leave and I think that puts us on an even score. It would be useful for both representatives now to indicate whether - - -
PN101
MR WOOD: No, there's no objection to that course, Commissioner.
PN102
MR TERZIC: And likewise. That being so, I would seek leave of the Commission to vary briefly seek to again examine Mr Mavromatis in-chief just to ask him a few questions as to the ETUs involvement in negotiations at which point it would be of course be there for Mr Wood to cross-examine on any further evidence.
PN103
THE COMMISSIONER: Yes, of course. I don't have any problem with that and leave is granted in relation to the appearances.
PN104
MR TERZIC: Thank you, Commissioner.
**** TONY MAVROMATIS XXN MR WOOD
PN105
THE COMMISSIONER: The only comment I would make is that it would be more than helpful to the Commission if you could convey to the CEPU that I would be grateful for them to lodge any of the necessary paperwork in order for the proceedings to go ahead involving that organisation and I think they've only had some months to get organised for this now and I would be appreciative if you could convey that to them because at the end of the day, depending on the decision that the Commission might have to give, I would hate it to be sullied in any way because there's some paperwork deficiency in the matter. So if you could convey that to them I'd be grateful.
PN106
MR TERZIC: Yes, Commissioner, and if there's any in this case I'm going to have to make various assumptions as to what has been filed in relation to their application.
PN107
THE COMMISSIONER: I'm sure you won't make a blue if you make any assumption whatsoever.
PN108
MR TERZIC: Yes. So turning to Mr Mavromatis.
THE COMMISSIONER: Yes.
<FURTHER EXAMINATION BY MR TERZIC [10.59AM]
PN110
MR TERZIC: Mr Mavromatis, you've given evidence that you've been at a series of negotiations with the company over the proposed agreement?---Correct.
PN111
Could you now explain to the Commission the role of the CEPU in negotiations, in these negotiations?---Mr Arnett, the organiser of the CEPU, has attended at least two meetings when I've been there and seeks to represent his members on the site.
PN112
What happens when Mr Arnett is not there?---He asked me to fill in and represent his side when he's an apology.
PN113
And has that situation been explained to the company?---Yes.
PN114
Who by?---By myself.
PN115
Can you recall when you did that?---On the days when Greg Arnett's an apology.
**** TONY MAVROMATIS FXN MR TERZIC
PN116
Can you recall whether you did that on all occasions or just from time to time?
---Probably not all occasions. I think right from the very start I think that was mentioned and the company understands that. I
don't think the company contests that. They understand that we work as a group. When I'm not there other people fill in for me,
when they're not there I fill in for them, it's just the way we work.
PN117
Mr Mavromatis, are the claims being pursued by the AMWU and the ETU common claims?---Yes.
PN118
Thank you. I will allow for re-examination.
PN119
THE COMMISSIONER: Yes, indeed. Mr Wood.
MR TERZIC: Cross-examination I should say.
<FURTHER CROSS-EXAMINATION BY MR WOOD [11.01AM]
PN121
MR WOOD: Thank you, Commissioner.
PN122
Mr Mavromatis, I think and I don't want to detain you too long on this point, I think you say that Mr Arnett's been to two of those meetings. You will notice in Mr Joyce's statement that those meetings were 2 October and 11 October?---Yes.
PN123
Does that accord with your recollection?---11 October you say?
PN124
Yes, and the 2nd?---And the 2nd, correct.
PN125
Mr Mavromatis, I want to separate - you were asked a question about what you explained and you answered it by reference to what the company understood. Leave aside what you think the company understood and just concentrate on what you explained. I put it to you that you never explained in any of the other 13 meetings, that is, the meetings other than the ones Mr Arnett was there, the 2nd and 11 October, that you were appearing for or representing the CEPU or the ETU or the electricians, what do you say to that?---I'd say there'd be times that I have said it. There'd be times that I didn't say it all the times, no, you're absolutely right, but right from initially the start I'd say the company's aware of it.
PN126
I understand about the awareness, I just want to get your evidence on what you actually said at any one of those 13 meetings that
Mr Arnett was not present?
---What I would have said is that when the ETU, I call them the ETU.
**** TONY MAVROMATIS FXXN MR WOOD
PN127
That's fine?---When the ETU is not present we work hand in hand and we work together and we're all here for the same goal and Greg's not here, I can speak on his behalf and - - -
PN128
I understand you had that conversation with Mr Arnett. You say you did anyway?---No, at the negotiating table I've stated that.
PN129
And you say that you said that to Mr Joyce and the other negotiators on behalf of Visy at one or more of those other 13 meetings, do you?---Correct.
PN130
Do you remember how many of those meetings you said that to Mr Joyce?---No.
PN131
I'm putting to you because I have to formally do this, Mr Mavromatis, because I may make this submission to the Commission, I'm putting forward to you that what you've just said is completely untrue and you've just made that evidence up, what do you say to that?---I say it is true.
PN132
Very well. Nothing further in cross-examination.
PN133
THE COMMISSIONER: Anything further?
PN134
MR TERZIC: Just to now re-examine on the totality of Mr Mavromatis' - or the evidence that was elicited in cross-examination I should say.
THE COMMISSIONER: Yes.
<FURTHER RE-EXAMINATION BY MR TERZIC [11.04AM]
PN136
MR TERZIC: Now, when you were first questioned by Mr Wood he raised questions about the costing of the claims, do you remember that?---Yes.
PN137
Mr Mavromatis, as a matter of course do you cost union claims?---Sometimes, sometimes. Sometimes not.
PN138
In formulating claims, union claims, what principally guides you?---The membership. We have mass meetings where they're authorised and the membership, we tell them, you know, what we seek and the membership guides us as far as the log of claims go.
PN139
And in relation to this matter what guided the formulation of your claims?
---Again the membership.
**** TONY MAVROMATIS FRXN MR TERZIC
PN140
Now, Mr Mavromatis, in relation to the question of the ETUs involvement in this matter are you aware of earlier agreements between the company and the AMWU?---I was part of the 2003 Visy Coburg Agreement.
PN141
And who were the union parties to that agreement?---Again it was who I call the ETU but the CEPU and the AMWU.
PN142
Thank you, Mr Mavromatis.
PN143
THE COMMISSIONER: Just a couple of questions. Just in relation to that last question related to the list of items that were proposed for the agreement, is it your evidence that the membership came up with the list of proposals that are contained in the bargaining period notice?---We actually done a survey on the job where put out a survey, let all the membership know that, you know, the agreement is coming up for expiry, we need to get a lot of claims up, so we'd actually done a survey and everybody brought in a survey.
PN144
Yes?---And with that we put the log of claims together. Then we went back to the membership, we explained how the survey was done. We read them all out and they endorsed it.
PN145
All right. Now, in relation to the CEPU and your representation of their interests at the meetings with the company, I think in answer to a question from Mr Wood you indicated, and I'm paraphrasing here to an extent, but along the lines I would have indicated this?---Correct.
PN146
So you can't give any specific example where you did do it, indicate to the company I'm here today representing the CEPU?---Correct, yes, that would be right, yes.
PN147
You can't think of one - sorry, there were two I think you mentioned which were the meetings of 11 October and 18 October, but in relation to all of the other meetings you're not able to indicate at any one of those meetings that you actually said to the company?---I would say that would have been said right at the very start, when we first - - -
PN148
Well, what I'm asking you for is are you able to say that at any of those meetings that you specifically said it, you just believed you would have said it?---I just believe I would have said it, yes, correct.
**** TONY MAVROMATIS FRXN MR TERZIC
PN149
Okay. I have got no further questions. You're excused, thank you.
<THE WITNESS WITHDREW [11.09AM]
PN150
THE COMMISSIONER: Mr Terzic.
MR TERZIC: I call Mr Rogers.
<STEVEN ROGERS, AFFIRMED [11.10AM]
<EXAMINATION-IN-CHIEF BY MR TERZIC
PN152
MR TERZIC: You're Steven Rogers?---Yes.
PN153
And your professional address is Level 4, 440 Lester Street, Melbourne?---That's correct.
PN154
And you're a full time union official for the AMWU?---Yes.
PN155
Mr Rogers, you've made a statement in these proceedings, haven't you?---Yes.
PN156
And you have got a copy of that statement with you?---I have.
PN157
Mr Rogers, is it true and correct?---Yes, it is.
Commissioner, I seek to have that marked.
EXHIBIT #T3 STATEMENT OF MR ROGERS
PN159
MR TERZIC: Mr Rogers, in the course of - you had negotiations with the company Visy for a proposed agreement, have you?---Yes.
PN160
Now, in those negotiations can you give your best recollection of the involvement of the organisation known as the ETU?---To the best of my knowledge the ETU have been involved in two meetings since the boning notice was put in and prior to that I can't say because I wasn't involved in negotiations so I can only speak about the period over the last, I think it's about six or seven weeks, as I stepped in prior to Tony Mavromatis taking time off so I just picked up the information so that we could run with it and there was break in negotiation while Tony was on leave. So I can only speak about that period directly from - - -
**** STEVEN ROGERS XN MR TERZIC
PN161
So just to make this clear, were there any meetings you were present at where there was no representative from the ETU?---Yes, there were. I think there were probably three or four.
PN162
Was anything said by anyone about the ETU at those meetings?---No.
PN163
And what's your understanding of the position of the ETU in these negotiations?
---The ETU have held a similar position to ourselves through the negotiations
as - - -
PN164
THE COMMISSIONER: Sorry, I can't hear, can you speak up?---Sorry, the ETU have held a similar position to ourselves during the negotiations that I've been involved with them and it's been a fairly consistent position with them. You know, I certainly don't speak on behalf of the ETU, I'm not authorised to do so.
PN165
MR TERZIC: Can you recall anything that's been said in any meeting that you've been present at that would give anyone the impression that the ETU are not acting together with the AMWU?---No, no.
PN166
That's all, Commissioner.
THE COMMISSIONER: Thank you. Mr Wood.
<CROSS-EXAMINATION BY MR WOOD [11.13AM]
PN168
MR WOOD: Thank you, Commissioner.
PN169
Mr Rogers, have you had the opportunity to look at Mr Joyce's statement of
18 October 2006?---Yes, I have.
PN170
And do you see in that statement that he refers to your statement where you give evidence about something that apparently happened on 28 September 2006 and it says that he thinks it happened on 20 September 2006?---Yes, yes.
PN171
Having now had a chance to read Mr Joyce's statement do you accept that you gave evidence about in your affidavit was wrong insofar as the date is concerned, it happened on 20 September?---I'm not entirely certain that's right, no.
PN172
Sorry, you're not entirely certain that's right?---No, no.
**** STEVEN ROGERS XXN MR WOOD
PN173
There was no EBA meeting on 28 September 2006, was there?---I don't know, you're telling me. I put that as the date. What's the purpose of the question? The meeting took place.
PN174
THE COMMISSIONER: You'd be struggling to get an answer to that,
Mr Rogers?---Well, the meeting took place and it's as described. There's no - - -
PN175
MR WOOD: I understand. I just want to make sure that we're talking about the same meeting?---I'm fairly certain we're talking about the same meeting. It's described in exactly the same terms, Mr Wood.
PN176
Okay. So did that meeting happen on 20 September or on 28 September?---Well, if - - -
PN177
You don't know?---Would you like me to go and check my diary?
PN178
Well, if you must, yes?---If you think it makes any difference - - -
PN179
THE COMMISSIONER: Mr Rogers, you've here to give evidence. You've sworn an affidavit and you're being cross-examined on the affidavit. All you have to do is answer Mr Wood's questions. If there's any questions which Mr Terzic thinks are inappropriate I have no doubt he will be on his feet so fast you'll see the dust rise around him.
PN180
MR WOOD: Particularly because there are no rollers on the chairs, Commissioner, so there will have to be some dust rising.
PN181
THE COMMISSIONER: Is that two zips so far is it?
PN182
MR WOOD: Mr Rogers, the purpose of my question is to make sure that we're talking about the same meeting and that there isn't some other meeting that I don't have instructions about. Is it possible that in referring to the 28 September meeting you meant to refer to the 20 September meeting?---It is possible, yes.
PN183
Can you have a look at the minutes, do you have Mr Joyce's statement?---No, I don't have the statement.
PN184
I'll have that handed to you, it's exhibit - if you turn to exhibit 6 to that - sorry, exhibit 7, RJ7 to that statement which is - - - ?---What is it exactly that I'm looking for?
**** STEVEN ROGERS XXN MR WOOD
PN185
The minutes of Coburg Collective Agreement 20 September 2006?---Yes, yes, found it. Got it.
PN186
Commissioner, I can hand up a copy of those minutes so you might be able to follow the cross-examination. Apparently that's the original copy, Commissioner.
PN187
THE COMMISSIONER: I promise not to lose it.
PN188
MR WOOD: Mr Rogers, you see you're described there as having been an attendee at that meeting?---Yes.
PN189
And the meeting went for about an hour?---Yes.
PN190
And at the bottom there's a reference to Mr Joyce show and tell and then a general discussion about the Australian economy, Australian manufacturing, Amcor, BlueScope tinplate closure?---Yes.
PN191
Having had the opportunity now to read that do you think that those minutes are describing the conversation that you depose to in your affidavit?---No.
PN192
You don't?---Which, the general discussion?
PN193
No, show and tell, Dole, Philippines - - -?---Yes, that part of it, yes, yes.
PN194
Yes, sorry. And tell me if I'm wrong, but perhaps I can ask a general question because you might agree with me and I won't have to go to the specifics, but did you understand the purpose of that show and tell was to explain to you the ….. perspective obviously the pressures that were impacting upon manufacturing at the Coburg site, that is the international pressures, pressures from customers and other pressures?---Yes.
PN195
And the upshot of what Mr Joyce told you was that there were domestic manufacturing industry was under pressure, is that right or not?---Well, no, I don't think that's exactly what was described. He described it - yes, go on.
PN196
He explained to you, for example, that the Port Lincoln tuna canning facility was the last surviving tuna canning operation in Australia?---Yes.
PN197
And he said that that facility was under pressure?---Yes.
**** STEVEN ROGERS XXN MR WOOD
PN198
And he said that there was pressure being put on a major client of Visypak, that is SPC Ardmona, by its consumer, its customer, Safeway?---Yes, that's what he said, yes.
PN199
And that he also explained that a major canned food supplier Dole of the Philippines, was providing canned fruit into the Australian market at about 70 cents less, that is a price of about $1.20 rather than $1.90 for the sort of product that SPC Ardmona was trying to sell?---Yes, that's what he said.
PN200
And the point that Mr Joyce tried to make was that these pressures ought to be taken into account when the union or the unions were
formulating the claims that were being made?---What are you asking me to comment on? The words of
Mr Joyce's, whatever he was trying to do - - -
PN201
You might not be able to tell the Commission what's in his mind but I thought it rather self evident. The point that you understood
it, let's put it that way, of
Mr Joyce telling you this was to try explain to you, that is you personally and you as a representative of the AMWU and you as apparently
a representative of the CEPU, that the claims that were being agitated were excessive having regard to the circumstances under which
Visy found itself?---Well, that wasn't what he said but I understand that it might be the position that the company wanted to put,
yes.
PN202
And that's what you understood his purpose to be. Whether you agreed with it or not is a different thing?---No, I understood it to be a description of what the market was generally. What relationship that has to the manufacturing at Visy was never made perfectly clear.
PN203
But you understood it to be put in the context of an EBA negotiation to try and put some context and give you some understanding of the environment in which it was to be operated?---I understood it to describe what international economics are, that's all.
PN204
And specifically to enable you to understand the sort of pressures Visy was under for the purposes of the current EBA negotiations?---I understood to be a description of what the market is.
PN205
There's nothing further, Commissioner.
PN206
THE COMMISSIONER: Thank you. Anything further, Mr Terzic?
**** STEVEN ROGERS XXN MR WOOD
PN207
MR TERZIC: No, Commissioner.
THE COMMISSIONER: I have got no questions, thank you. You're excused.
<THE WITNESS WITHDREW [11.22AM]
PN209
MR TERZIC: Nothing further we seek to put to the Commission as evidence-in-chief and that closes that leg of the case, Commissioner.
PN210
THE COMMISSIONER: All right, thank you. Mr Wood.
MR WOOD: Commissioner, we call Robert Joyce.
<ROBERT JOYCE, SWORN [11.23AM]
<EXAMINATION-IN-CHIEF BY MR WOOD
PN212
MR WOOD: You might be able to sit down, Mr Joyce, it's no longer police court style giving evidence in the Commission.
PN213
THE COMMISSIONER: Not yet.
PN214
MR WOOD: Mr Joyce, do you have copies of the two statements that you've made in this proceeding?---Yes.
PN215
Can you have them in front of you them?---Yes.
PN216
Can I take you first, although it's slightly out of chronological order, to your latest statement, that is the one you made yesterday, 18 October 2006, do you have that in front of you?---Yes, yes.
PN217
And do you have the exhibits to that statement?---No, I don't. It seems I don't. I have a number of them but - - -
PN218
Perhaps formally I could give the witness the Commission's version of that.
PN219
THE COMMISSIONER: Yes, that's fine.
PN220
MR WOOD: And then get him to formally identify it.
PN221
THE COMMISSIONER: Yes, that will be all right?---Yes, this is the document.
**** ROBERT JOYCE XN MR WOOD
PN222
MR WOOD: And is that witness statement true and accurate?---Yes.
PN223
I tender that statement although it's formally been marked, Commissioner.
PN224
THE COMMISSIONER: Yes, it's W1.
PN225
MR WOOD: Can you hand that back to the Commissioner's associate, please, Mr Joyce. Mr Joyce, do you have your earlier statement of 12 September 2006 in front of you?---Yes.
PN226
Commissioner, do you have that statement on file?
PN227
THE COMMISSIONER: Yes, I've got it here.
PN228
MR WOOD: I think you're in the same position in relation to that statement,
Mr Joyce, that you don't have the exhibits to that statement, is that right, or you do have the exhibits to that statement?---I do
have the exhibits to this statement with the exception of - no, sorry. No, I do have them all.
PN229
And can you have a look through those exhibits and the statement dated
12 September 2006 now and answer my question, is the statement and the exhibits, are they true and accurate?---Yes.
I tender the statement.
EXHIBIT #W2 STATEMENT OF MR JOYCE AND EXHIBITS, DATED 12/09/2006
PN231
MR WOOD: Mr Joyce, formally for the record, I note that you were in the body of the Commission whilst Mr Rogers and Mr Mavromatis were being examined and cross-examined, is that correct?---Yes.
PN232
And I asked some questions of Mr Mavromatis about whether or not he explained to you during any of the 13 EBA meetings in which Mr Greg Arnett was not present as to whether or not he represented Mr Arnett or the ETU, do you recall being asked those questions?---Yes.
PN233
Do you recall whether or not Mr Mavromatis did so explain that to you?
---Mr Mavromatis explained that he had - - -
**** ROBERT JOYCE XN MR WOOD
PN234
Just try and answer my question, please, Mr Joyce?---Yes.
PN235
Did he ever explain that to you, yes or no?---No.
PN236
Yes, nothing further.
THE COMMISSIONER: Mr Terzic.
<CROSS-EXAMINATION BY MR TERZIC [11.27AM]
PN238
MR TERZIC: Mr Joyce, negotiations for an agreement between your company and the AMWU have been going on for some time, haven't they?---Yes.
PN239
When do you recall the negotiations starting?---They commenced on 19 May.
PN240
And for the first three or four months since that date it's your evidence that there was no representative of the ETU at those meetings?---Yes.
PN241
Mr Joyce, it's your evidence that there's about five ETU members on site?---Five electricians, yes.
PN242
And as opposed to how many members of the AMWU?---People eligible to be members of the AMWU, about 170.
PN243
Yes. And you've had negotiations for an agreement between the unions and the company before you've been involved in this process before prior to this occasion, haven't you?---Previous EBA, yes.
PN244
And in the previous EBA did it have the CEPU as a party to that agreement?---A party, yes.
PN245
Can you recall the negotiations for the previous agreement?---I can.
PN246
About how many meetings occurred in the - - - ?---A number of meetings that we were - specifically the first meeting in the previous EBA Mr Mavromatis explicitly told us that he had authority to represent the ETU at the previous EBA.
PN247
Okay. And it's your evidence that he didn't do that on this occasion?---No, he did not.
**** ROBERT JOYCE XXN MR TERZIC
PN248
Did you have any question as to the role of the ETU in all of this?---No.
PN249
Did you seek to confirm with Mr Mavromatis whether he was acting as a representative from the ETU?---No.
PN250
So you never raised that with them on the second occasion up until Mr Arnett appeared, is that your evidence?---No.
PN251
You've got a double negative there?---If I could, Commissioner, after the Commission hearing on the 13th, at the Commission hearing, after we went into conference Mr Arnett was there. He told us that he expected to be there on the 20th. He did not turn up on the 20th and you'll see the minutes actually say that we're expecting - told us he expected to be there, he was not there. So that was the first time that the ETU told us, which was 13 September, we expected them on the 20th, they didn't come on the 20th. They were there on the 2nd, they were there on the 15th and yesterday Mr Mavromatis told us that Mr Arnett was an apology.
PN252
Moving forward to when Mr Arnett first turned up at the meeting?---Yes.
PN253
What was the role of the ETU in the negotiations explained to you to be?---It was not explained to me.
PN254
It's your evidence however that at the meeting on 2 October this year that
Mr Mavromatis appeared to speak for the CEPU in paragraph 8 of your statement, is that right?---Yes.
PN255
So by that you're saying you understand the AMWUs claims and the ETUs claims to now be common claims?---Yes.
PN256
And do you now understand that Mr Mavromatis has an ongoing authorisation to speak on behalf of the ETU members?---He says he does.
PN257
And that's been communicated to you now?---This morning.
PN258
Has it been communicated to you before?---No.
PN259
Now, in the course of the negotiations you were given originally a bargaining period notice, that's correct?---Yes.
**** ROBERT JOYCE XXN MR TERZIC
PN260
And then going back to the early stage in negotiations, going back to May and June, did you refer to the bargaining period notice?---Tony Mavromatis did, yes.
PN261
And that was referred to in the meetings?---The log of claims, we understand the log of claims, was discussed at an earlier meeting in June and it was provided to us on 14 June in the log of claims.
PN262
And you were the lead negotiator for the company?---Yes.
PN263
And how did you respond to the union demands earlier in the negotiations?
---Commissioner, it was difficult. As you know, this is the second hearing that we've had here. There were a number of issues
which we were physically unable to talk about and that's the reason why we've now got a second application. So we had provided the
union with a draft collective agreement and we were speaking to that.
PN264
When you say a draft collective agreement, how was that draft collective agreement formulated?---I typed it.
PN265
And by what point of reference did you set out the terms that were in the draft?
---With discussion with the team.
PN266
Who is the team?---Well, the team, at present throughout the team has been Perry Zoelfel and Robin Street and also had input from the financial officer from food and also the general manager from food.
PN267
And was a comparison made between that draft and the previous enterprise agreement?---I don't understand.
PN268
Well, how does your current - or the draft agreement you're referring to there compare with the previous enterprise agreement?---What we've tried to do is as far as possible with some variations which are explained to the employees, a rollover.
PN269
So what do you mean by rollover?---A rollover, what we sought to do is four, four and four. We sought to use as many of the previous provisions as we could. We'd need to exclude the prohibited matters and there are a number of things which are itemised in my witness statement which either didn't work or were no longer applicable and we explained those to the union and we sought now to have those removed.
**** ROBERT JOYCE XXN MR TERZIC
PN270
Well, you said four, four and four, by that you mean pay increases of 4 per cent per annum?---Yes.
PN271
Starting from when the agreement was reached or thereabouts?---We'd already been from date of lodgement.
PN272
Yes. Now, how has the union responded to your offer of four, four and four?
---Been rejected.
PN273
And what's the union's position been as communicated to you?---Earlier it had been 20, 20, 20 and since the 11th it's been 10, 10, 10.
PN274
Now, can you recall the operation of the earlier agreement, that was a three year agreement was it?---Yes.
PN275
And what were the pay increases provided for there?---The pay increases, Commissioner, it was a sliding scale. We have some employees working eight hour shifts in both metals and graphics and we have some employees who work a 12 hour shift. So I think you'll find it's provided for in the table that has been handed up to you but what we have is the eight hour shift employees at Coburg received a pay increase in the first year. They also received a, if you will, a reduced pay increase. They received a performance payment in the first year. They also have access to some newly created which they effectively offset which was leisure days of five leisure days.
PN276
MR WOOD: It's summarised in exhibit RJ8, Commissioner.
PN277
MR TERZIC: Yes, I was going to - - -
PN278
MR WOOD: Sorry.
PN279
MR TERZIC: I don't mean to stretch his memory unnecessarily.
PN280
So at RJ8, you've got that in front of you, that annexure to your statement?---Yes.
PN281
Okay. So you've got in RJ8 metals eight hour, 3.5, 2.5, four, graphics eight hour, 3.5, four, four, others five, four, four?---Yes.
PN282
That's right. Now, do you have a reasonably good memory of the conduct of negotiations for the previous agreement?---Yes.
**** ROBERT JOYCE XXN MR TERZIC
PN283
Can you recall where the union's opening claim was for wage increases?---No.
PN284
You've got no recollection of when the union started its claim?---No.
PN285
If I were to suggest to you the figure was eight, eight and eight would that refresh your memory somewhat?---I don't know, I don't recall.
PN286
Do you recall there being extensive negotiations on the amount of wage increases to apply?---Yes.
PN287
And do you recall the parties being apart?---Yes.
PN288
And obviously the parties eventually found common ground?---Yes.
PN289
And over about what period did it take the parties to find common ground?---It was before Christmas, negotiations commenced around June so I would say five months.
PN290
About five months. Now, Mr Joyce, you've said that you've been involved in negotiations for an earlier agreement and this agreement, have there been other occasions on which you've participated in negotiations for an enterprise agreement?---Yes.
PN291
Can you give the Commission evidence of where that occurred and when that occurred?---Commissioner, part of the food group we have five sites, we have the Coburg site which is ….. they make the can ends and the can bodies and we have three conversion sites. One conversion site is in Shepparton which makes cans for predominantly SPC, Ardmona. We have one conversion site in Wodonga where they make cans predominantly for Masterfoods Australia which is pet food, and we have one site in Warwick Farm where they make cans predominantly for Bushells which is also pet food.
PN292
Now, you were involved in these negotiations for these agreements?---Yes.
PN293
And you were involved in negotiations with unions?---Yes.
PN294
Which unions?---At the Warwick Farm in New South Wales it's the Australian Workers Union and the Australian Manufacturing Workers Union Metals Division. At the Shepparton site and the Wodonga site it's the Australian Manufacturing Workers Union Metals Division.
**** ROBERT JOYCE XXN MR TERZIC
PN295
So it would be fair to say you've got some experience in negotiating agreements?
---Yes.
PN296
And in negotiating agreements it's typical, isn't it, that a union will start off with what's called an ambit claim?---Yes.
PN297
And over the course of negotiations that ambit claim will reduce from the start of the negotiation through to the end of negotiations?---It can.
PN298
And what's the highest ambit claim you've ever faced for wage increases?---Don't recall.
PN299
So it could have been higher than 20, 20, 20?---Don't know.
PN300
When you saw a claim for wage increases of 20, 20, 20 did you think the union wanted to achieve that outcome there and then?---There and then, no.
PN301
You expected that claim to reduce over time, didn't you?---Yes.
PN302
And it did, didn't it?---On 11 October, yes.
PN303
And there were other elements to the unions ambit claim, weren't there?---I don't understand.
PN304
Well, the union has got claims for various items, hasn't it, apart from wage increases?---24 points in the log, yes.
PN305
And since the beginning of negotiations or since the beginning of the serving of the ambit claim on you, there's been reductions as well, hasn't there, on other issues?---On the 11th, yes.
PN306
On the 11th there were significant reductions in the ambit claim, weren't there?
---It was changed, yes.
PN307
It was reduced, wasn't it?---Yes.
PN308
In a significant way, wasn't it?---Some items, yes.
PN309
And the wage increase was reduced by half, wasn't it?---Yes.
**** ROBERT JOYCE XXN MR TERZIC
PN310
Now, what did that significant reduction signify to you, Mr Joyce?---They weren't being genuine, unsustainable.
PN311
THE COMMISSIONER: What was?---Reducing it from 20 per cent to 10 per cent was still not being genuine and not sustainable.
PN312
MR TERZIC: Well, it's your opinion that it wasn't genuine or sustainable to start with, is that correct, the 20, 20, 20, et cetera?---Yes.
PN313
And then when the wage increase fell back by half that didn't change your view as to the conduct of the union in negotiations?---No.
PN314
Now, you've said four, four and four is your bargaining stance?---Yes.
PN315
When was that first communicated to the union in this round of bargaining?---The first meeting.
PN316
And have you moved on that offer?---On the four, four and four, no, but during the meeting yesterday Mr Street made a concession that in event the union accepted four, four and four we may be prepared instead of having the 4 per cent from date of lodgement we may be prepared to go from the date that the previous EBA expired.
PN317
Okay. So when you started negotiations in this round you formulated an agreement that was a rollover agreement and offered 4.4, is
that correct?
---Rollover was explicit modifications which we advised the employers and the union.
PN318
Yes. And it was a rollover essentially with reductions wasn't it?---With changes, yes.
PN319
Yes. Taking out the 4.4, it was an overall reduction in the terms and benefits provided to the union and employees wasn't it?---If there were changes, yes. I'm not sure what benefits we provide to the union, but what we did was we've made some changes, we've explained to them why the changes are going to occur.
PN320
Well, in the previous agreement there was a provision for right of entry wasn't there?---Yes.
**** ROBERT JOYCE XXN MR TERZIC
PN321
And that gave the union some benefit for right of entry didn't it?---Yes.
PN322
And you've cut that out haven't you?---Consistent with your letter, yes, prohibited matters have been removed.
PN323
Yes. So overall there's been a reduction between the earlier agreement and the current one you're pressing for hasn't there?---I don't understand. Right of entry is provided for under the legislation.
PN324
And you've also taken out a continuous improvement clause too haven't you in the current claim you're offering?---The words, yes.
PN325
And what did that provide for?---The wage increase would still be provided for because it's added to the employee's base, but that had been used there to help offset the LDO, the leisure day increase.
PN326
So that was the equivalent - is it correct to say that was the equivalent to a one per cent pay rise?---For some employees, yes.
PN327
And you've taken that away in your current offer?---Yes.
PN328
Now, also with sick leave too, what did the old agreement provide for for sick leave on resignation of employees?---We were trialling up to 10 weeks accrued sick leave to be paid out to an employee in the event of termination.
PN329
And is that part of your current offer?---No, it's not.
PN330
So you've taken that out?---Yes, we have.
PN331
So going back to your current offer, how have you augmented that over the last three or four months?---During the last three or four months we've had discussions with the employees. For example, Mr Mavromatis has asked me to amend the long service leave so it's in accordance with the changes to the Victorian Long Service Leave Act.
PN332
So that's the only way you can say you've augmented your current offer?---No.
PN333
How else have you augmented your offer?---Prior to the hearing on 13 September we spent a great deal of time with Mr Mavromatis trying
to address some of the issues which were subsequently found to be prohibited matters. We made a number of concessions there to try
and address their concerns as well as
keeping - - -
**** ROBERT JOYCE XXN MR TERZIC
PN334
In concrete terms can you tell me how you have increased your offer since you first made it? You've said you've had discussions on it?---The discussion remains four, three and four.
PN335
And you haven't moved really?---On the quantum, no.
PN336
No. So it's correct to say that when you formulated your current offer you took a step backwards from where the employees were before, and you haven't really moved towards the union's demands in any substantial way have you?---I don't see it as a step backwards and I don't see that we need to move towards the union's point because what we're seeking to do is to explain a uniform or a sustainable approach for the site.
PN337
Now, you've given explanations to the union of the way you've put together you claim haven't you?---Yes.
PN338
On how many occasions?---When they've asked for them.
PN339
And when has the union asked for them?---I don't know, I can't - whenever they ask for an explanation we provide it to them.
PN340
Well, didn't you depose in your statement that you spent some time going through the situation of the canning industry with Mr Rogers?---Yes.
PN341
And he listened to your explanation didn't he?---Yes.
PN342
He didn't put his hands on his ears and shout or anything, he listened patiently?
---Yes.
PN343
And he appeared to accept what you said?---Yes.
PN344
And you've had an ample opportunity to explain to the union or unions how you've formulated your offer haven't you? You've had plenty of meetings and plenty of time to do it?---We have, and we're going to provide some additional information in the next meeting.
PN345
Yes. And the unions, they've never said we don't want to hear this any more have they?---No.
**** ROBERT JOYCE XXN MR TERZIC
PN346
Whatever you've had to say they've listened to?---Yes.
PN347
And as for the conduct of meetings the unions have turned up at meetings generally as called?---Generally, yes.
PN348
And they have been conducted in a relatively cordial fashion haven't they?---Yes.
PN349
But it's your view that the union is taking a hard line isn't it?---Not genuine, yes.
PN350
No. Is it your view that the union is taking a hard line in these matters?---No.
PN351
When you say not genuine, can you explain in more detail why you make that comment?---The food division is under a lot of pressure financially with competition. BlueScope Steel, the last Australian manufacturer of steel is closed and we're now being forced to import steel from overseas. The division in the last 14 months has effectively reduced FTE by about 120 people. There's been a significant reduction in demand of Australian food in Australian made cans, and we have some of the shopping chains bringing in foreign food in foreign cans. So what we're faced with is a diminishing market. We've found that Amcor is trying to sell their steel assets because the business is significantly reducing for them as well, and what we're trying to do is to genuinely approach our employees as we have done at other sites to explain the situation we find ourselves in, and to genuinely provide them with a financial outcome which is justified and sustainable.
PN352
Now, maybe I'll go through some other expressions. You've said not genuine, but would it be another accurate assessment to say the union haven't been accommodating to your offer?---I don't see the need to accommodate. I think what they need to do is to appreciate where we're coming from, and I don't think they have.
PN353
How long have you known Mr Mavromatis for, Mr Joyce?---I first met Mr Mavromatis in November, approximately November, December 2002 when I - I went from Visy Corporate to Visy Food.
PN354
And you were involved in negotiating the earlier agreement with Mr Mavromatis weren't you?---The team, yes.
PN355
Yes, okay. And as you recall, was Mr Mavromatis the lead union negotiator on that occasion?---Yes.
**** ROBERT JOYCE XXN MR TERZIC
PN356
Now, Mr Mavromatis, would you describe him as a tough negotiator?---Yes.
PN357
And he makes his point forcefully doesn't he?---Yes.
PN358
But not in an aggressive or threatening manner?---When you get to know him it's basically a production.
PN359
Okay. Now, you've also had some negotiations with Mr Mavromatis over issues other than enterprise agreements haven't you?---Yes.
PN360
For example employee grievances etc?---Yes.
PN361
And is it your evidence that Mr Mavromatis is fierce and dedicated advocate for his members' interests?---Yes.
PN362
But ultimately you - leaving aside these negotiations, ultimately you reach agreement with Mr Mavromatis don't you?---On some things, yes. Others we come to the Commission.
PN363
Yes. But you do reach agreement with Mr Mavromatis on key issues don't you?
---On some things, yes.
PN364
You reached agreement with Mr Mavromatis on the earlier agreement didn't you?
---Visy did, I didn't. I was part of the team then, I was not the final decision maker.
PN365
Yes. And you're aware of - - -
PN366
THE COMMISSIONER: You're saying you got rolled?---I would never say that.
PN367
MR TERZIC: On the last occasion negotiations were held did the union engage in protected industrial action?---I don't - Commissioner, I'm getting confused. I'm not sure if they could take protected industrial action under the legislation. My knowledge is not sufficiently deep. I do know that Coburg there was one four hour stoppage during the EBA negotiations and there were numerous stop work meetings.
PN368
Do you recall any bans and limitations?---I don't remember. I don't remember.
**** ROBERT JOYCE XXN MR TERZIC
PN369
Mr Joyce, have you been involved in negotiations for an agreement where protected industrial action has occurred apart from the incident
you've just said?
---Is this under the new regime?
PN370
Under any regime?---I don't recall.
PN371
So you don't have any firm recollection?---No firm recollection, no.
PN372
So you might be said to be a protected industrial action novice in some regards?
---Yes.
PN373
Do you apprehend or fear protected industrial action taking place in relation to the current negotiations?---I'm concerned it will damage our customers.
PN374
Would you imagine that it would increase the imperative for an agreement?---It would have the potential to, yes.
PN375
Yes. That's it, Commissioner.
PN376
THE COMMISSIONER: Very well, thank you. Mr Wood, anything further?
PN377
MR WOOD: No re-examination, Commissioner.
PN378
THE COMMISSIONER: Just a couple of questions. In relation to the negotiations in the past, do I take it from the evidence that you've given that the AMWU has in the past also represented the interests of the electricians?---When they did, Commissioner, during the previous EBA on day one almost the first statement Mr Mavromatis made was that "I'm here to represent the ETU."
PN379
And on this occasion your evidence was that that didn't occur?---No, it did not.
PN380
Was it ever a concern of yours that the CEPU weren't being represented, the electricians weren't being represented?---Yes.
PN381
Did you raise that with anyone?---No, I did not, Commissioner.
PN382
Why, if it was a concern?---It was not my place to. I wasn't running their case. My concern was that there are a number of people who Mr Mavromatis would have with him, not all of the same employees were there, not all of them were elected representatives, so it was - I was trying to organise my team.
**** ROBERT JOYCE XXN MR TERZIC
PN383
Sure. But it was a concern of yours that there wasn't any formal representation from the CEPU?---I was aware because on the one hand we'd received paperwork from the CEPU seeking - - -
PN384
You're doing better than me?---I think it was on 14 June, Commissioner.
PN385
Okay. But there wasn't, is it reasonable to say, there wasn't sufficient concern to raise it with Mr Mavromatis or anybody else with
whom you were negotiating?
---It was not raised, Commissioner.
PN386
In terms of the negotiations that had been conducted in relation to this matter has there been any progress whatsoever from your point of view?---I believe there has been progress, Commissioner. As a result of the last Commission hearing on the 13th the issue of prohibited matters is now no longer on the table. We have had some ongoing discussions with the union, and what we seek is to have further ongoing discussions, and I'd like to have some additional month of discussions to see what we can do, because progress has been made. What we seek to do is, that hopefully with today's hearing they will demonstrate where we are financially and the need for both parties to be genuine with the outcome.
PN387
And why do you say they're genuinely not seeking to reach an agreement?
---Commissioner, from 14 June when they provided us with the log of claims there has been movement then since 11 October. And then
effectively overnight it went from 20 to 10, and we had explained to them that even whilst there had been a concession, a concession
from 20 to 10, it was still not sustainable. What we had sought to do is that we had told Mavromatis and our employees, Robin Street,
the operations manager, had spoken to the employees in March and April of this year, he advised them of the results of the negotiations
with the same union at both Shepparton and at Wodonga, and effectively it was four, four and four, that we were having negotiations
at Warwick Farm which subsequently had agreed to four, four and four, but it's not yet lodged with the Office of the Employment Advocate.
And so we could have perhaps gone with minus one or one and then moved up to four. What we were hoping to do is from day one to
demonstrate how genuine we were, to say that the other Visy Foods, Steel sites we have achieve four, four and four, and we were trying
to do the same. So to avoid some of the things that weren't genuine in the past, just to go straight to our final position.
**** ROBERT JOYCE XXN MR TERZIC
PN388
But the 20-odd list that you received in relation to the notice of bargaining period, that's been reduced?---On the 11th it has, but some of them have been reduced, yes.
PN389
Well, the 11th is what, eight days ago?---Yes.
PN390
So the list has been reduced and the quantum has been reduced?---If I could just, Commissioner. Originally there were 24 points.
At 11 October Mr Mavromatis said with respect to the $25 travel allowance, if we were to receive 10, 10 and
10 then we would remove the $25 travel allowance.
PN391
And what about the other 23?---So that 23 - - -
PN392
Are they all still there?---No. They're still there. Many of them have been reduced but they're still there. But none of the 24 points have been removed.
PN393
Is it your expectation that that list is unlikely to reduce, or is it your expectation that it probably will?---I would like it to reduce, Commissioner, and I'd like perhaps in the next month or so to try and do that.
PN394
In the past where you've had negotiations for an EBA, I take it there was a lot of claims for anything up to probably 24 items on it?---Yes.
PN395
And that reduced at the end of the day?---Yes, it had.
PN396
And on agreement was agreed upon and certified?---Yes.
PN397
And you hope that will occur again?---Yes. But in the past, Commissioner, there had been far more - there had been more movement, points have been removed and also points have been reduced.
All right. I've got nothing further. Anything arising? If not, thank you, you're excused.
PN399
THE COMMISSIONER: All right, I take it that's the evidence?
PN400
MR WOOD: Yes, Commissioner, from our side. It's a question of file submissions. How long are they likely to take? Do you want to press on now or do you want to have a lunch break? I'm easy.
PN401
MR TERZIC: We're happy to press on. We'll go straight into submissions, Commissioner.
PN402
THE COMMISSIONER: Press on?
PN403
MR WOOD: We're happy to, Commissioner.
PN404
THE COMMISSIONER: Why don't we keep going.
PN405
MR WOOD: Our argument, as I think is clear from our outline, has really just focused on one section, otherwise there's no contest on, apart from some timing and program matters if the application is successful.
PN406
THE COMMISSIONER: Well, we'll take final submissions then.
PN407
MR TERZIC: Yes, Commissioner, I've had the advantage of reading the respondent's submission, and the matter that the Commission is to direct itself to is relatively narrow in its scope I would submit, and the matter could be disposed of without extensive submissions. And I might refer firstly actually to the respondent's written submission at paragraph 11 because that frames the question the Commission is to direct itself to. The relevant parts of the statute are sections 461(1)(a) and (b), that's where this application will rise and fall. I won't read them out, I think the Commission should be aware of what they say, and Mr Wood is too undoubtedly.
PN408
But the first issue there is what we might call the timing issue or the temple aspect of it, and that is, in looking at whether the applicant is, so in a present continuous tense, generally trying to seek agreement, and whether the evidence discloses that the applicant has in the past genuinely sought to reach agreement. The respondent submits that the relevant time for that is at the time for the application for a secret ballot is made by the union. That is more or less correct, but the cited passage from Vice President Watson's decision in Blue Circle Transport should be looked at perhaps a little bit more extensively, wherein his Honour says:
PN409
As a matter of statutory construction section 461(1)(b) involves the consideration of the state of affairs at the time the application is made and determined. Section 46(1)(a) involves a consideration of the same test but over a different time period.
PN410
As for what is occurring in relation to the present continuous, that would be not only - shouldn't be referenced to when the application is made, as in filed, but as his Honour said, made and determined. So events that would go right up to today's hearing, and evidence that has been given at today's hearing should, in my submission, be taken into account when the Commission seeks to satisfy itself whether that test has been made. And in that regard if one is to look more broadly at the evidence that has been brought forward in these proceedings, I would submit that the Commission could make the finding that the negotiations have carried on for several months. But if one was to make an assertion that one of the parties in the negotiations has stood firm and ossified it's approach in these proceedings, that accusation could be levelled directly at the employer.
PN411
The employer formulated what it thought was a reasonable outcome of negotiations and then largely the employer has dug its heels in and not significantly moved from where he started. Indeed it was quite revealing to hear what I would say is the justification for that approach by Mr Joyce, the lead negotiator, wherein he said we could have started at minus one, minus one, minus one, and then started moving. But it would seem his approach has been to say this is the offer, and he has not significantly moved from that offer. And the offer by the way is a reduction on what was achieved in the previous agreement in various respects. Various terms have been reduced, the sick leave, the continuous improvement clause, and then of course through matters that we must concede are not within the province of the company to deal with, to prohibited content, which would provide benefit to the union.
PN412
MR WOOD: That wasn't Mr Joyce's evidence. He said he didn't see it as a step backwards.
PN413
MR TERZIC: Well, at any rate, so the union has been faced with a company that has given a full explanation of the commercial imperative to circulate a particular point. But the company has not in any substantial way supplemented, augmented or reformulated what it proposes to put into a Workplace Agreement. Mr Mavromatis' evidence is that he had consulted with the union membership, formulated a log of claims and pressed it, and he's pressed it in largely undiminished terms for months and months and months until relatively recently when there was a significant movement by Mr Mavromatis, significant to the extent that the overall wage increases pressed have been halved.
PN414
At that point I'd invite the Commission to find that that movement is a clear indication of good faith and a signal that the union has started moving in the right direction. But the company stands firm, and in some respects one might say that it might have been perhaps a naïve approach to bargaining by Mr Joyce, in that he didn't give himself enough room to move in the course of negotiations. The very much final offer approach that he has sought to pursue might have left him not sufficient room to move and reformulate his claims. And one might make the observation that the negotiations overall might have been conducted in a more efficacious manner than they have, but nonetheless there should not - it's my submission there is not enough for the Commission to make a finding that the union has not fulfilled the requirement that falls to it under the Act to get the ballot order, namely, that it has not tried to reach agreement, genuinely tried to reach agreement and is not genuinely trying to reach agreement.
PN415
THE COMMISSIONER: And you wouldn't describe a 30 per cent wage increase as fanciful?
PN416
MR TERZIC: Commissioner - - -
PN417
THE COMMISSIONER: I only raise that on the basis that you believe Mr Joyce to be naïve in his approach, so I'm just contrasting it.
PN418
MR TERZIC: Commissioner, the fact that it's been significantly reduced shows that there is scope for movement, considerable scope for movement, and in some respects one might characterise the state of affairs in an overall sense as being one where both parties waited for the other to blink. Well, the union has blinked and we're waiting for the company to blink before things move again. Commissioner, I haven't got firm instructions here, but it would be highly unlikely that agreement will be reached on wage increases of 10, 10 and 10.
PN419
THE COMMISSIONER: I'll have a bit of that, this being the punting season.
PN420
MR TERZIC: But equally the union has got every reason to be optimistic and within the bounds of industrial reality to press for a claim that might provide for greater than four, four and four. Commissioner, in some respects it would be on safe ground for the parties here to rely on your experience of industrial affairs. Indeed the Act at section 78 requires that each member of the Commission shall keep acquainted with industrial affairs and conditions, and I'm working on the assumption that you've made good on that statutory requirement that falls to you in holding the office you hold, and you would be aware of - - -
PN421
THE COMMISSIONER: You can't believe how close to the mark you are with all of that. When one has a background in the food industry and are aware of the Dole Corporation in the Philippines and the way that they do conduct themselves internationally, and sadly it would appear that they're beginning to do the same here. I also have personal and private views about supermarket chains and the rest of it as to where they source their product and all the rest of it, so I still haven't quite lost touch I don't think on a lot of these issues that impact at the end of the day very much on the ability of companies to pay wage increases and to assist in the improvement of working conditions within their plants. I'm very aware of all that.
PN422
MR TERZIC: Well, Commissioner, there's no doubt that the company is facing commercial pressures, and that has been explained. And the evidence of Mr Joyce is that when he has explained those commercial pressures to union representatives, when he explained it to Mr Rogers the union listened and the union has given every indication that it is receptive to those end treaties as to a reason to moderate its claims. But the union also has a competing interest, and that is to secure claims that were formulated by its membership, and the union is an emissary from the membership to try and secure various gains in the current round of bargaining.
PN423
Now, it might be found that the union has taken a hard line in all of this, in that it hasn't easily crumbled from its ambit claim, it has held firm. Perhaps that might be explained as a union strategy to try and get the company to move from its very much categorised by me final offer stance. But that should not poison the well in this application. And indeed if this is to be characterised as a hard line case or a hard line issue, it is instructive to look at how that was viewed by Marshall J in the O'Connor case. And there is a passing reference in the respondent's submission, but that reference should be expanded. There's more that was said in the judgment of Marshall J in that issue that is pertinent to this case. I've got a full copy of that decision. The references are there.
PN424
THE COMMISSIONER: Good, thank you. Yes, I ask for a citation.
PN425
MR TERZIC: I won't give the citation on the record.
PN426
THE COMMISSIONER: No.
PN427
MR TERZIC: But I will ask that the Commission turn to page 361 of this version. And interestingly the role of the parties were in reverse to what is now before the Commission. This is where an employer had locked out his employees, and the union sought to invalidate the employer's actions on the basis that it had failed what was materially the same test, and the passages that I'll refer to which emanate originally in some respect from a decision of Senior Deputy President Hancock of this Commission and then later cited with approval by Marshall J of the Federal Court.
PN428
Largely I would say perhaps the most persuasive, if not the most compelling judicial consideration of the relevant parts of the statute as they should be applied with facts and contentions as are currently before the Commission, and therein I'll just go straight to the extract from his Honour, Senior Deputy President Hancock's decision:
PN429
Bargaining in good faith does not require a willingness to make concessions ...(reads)... it may still be bargaining in good faith.
PN430
I'll end the quote there but I'll return to it later. Firstly, it has been held, and I think Mr Wood will concede bargaining in good faith is co-extensive with the relevant test here. In respect of the first part of the quote bargaining in faith is consistent with a hard line, the union has taken a hard line. The company, once making its offer, has taken a hard line. That the parties have taken that stance should not indicate that they are not bargaining in good faith and not genuinely trying to reach agreement. Having made that concession, if the employer was to move to lock out the union's members we would be hoist on our own petard, but we make that concession here.
PN431
Equally it does not imply a moderation of demands. Well, the union has significantly moderated its demands, and that then does bring the union's conduct closer to the sort of conduct that might be inferred from this passage as meeting the bargaining in good faith test. The quote goes on to say:
PN432
It does imply preparedness to consider seriously offers and proposals made by the other side.
PN433
Commissioner, the union's representatives have consistently appeared at meetings called to negotiate, negotiated extensively over 12, 13 occasions had listened to the company's case on this matter we say further goes towards meeting the test that is required for the union to successfully prosecute it's ballot order. And the relevant passage says if the union has done these things and if the bargaining party remains unmoved - well, we're moved - so if the bargaining party remains unmoved it may still be bargaining in good faith. So even if at one point the union hadn't moderated its demands, the fact that we have met again and again and again and considered the company's position should be enough to meet that test.
PN434
I return to Senior Deputy President Hancock's writings on this issue.
PN435
The inability of parties to reach an agreement is not evidence that either is acting in bad faith.
PN436
We haven't reached an agreement, that is not indicative of bad faith and by extension not indicative of not genuinely trying to reach agreement et cetera. I return to the quote:
PN437
The adoption of a hard line or the making of extravagant demands may evince and underlying intention of obstructing agreement. This tactic would constitute bad faith, but in few cases in any could its existence be inferred from the bargaining stance alone.
PN438
Marshall J adopted that passage but he substituted would for could. So what's being said in the second part of the passage is that if the Commission wants to form the view that demands were extravagant, there's more to it than that to say that we're obstructing agreement. And even if the Commission views that the claims as they stand now, 30 per cent over three years, is extravagant, if one is to put that current stance in a context of the significant movement that has already occurred and the willingness to keep meeting with the company, that would indicate that there is a genuine desire to reach agreement.
PN439
Indeed the question can be inverted and posed as, if the union is not genuinely trying to reach agreement what is it doing? And can speculate as to that, but there appears to be no nefarious motive or ulterior motive on the company. Perhaps in some circumstances extravagant demands, demands that are known could never be met could be used as a pretext for pursuing some ulterior motive. Perhaps there might be a demarcation dispute or a union might be seeking to set up a circumstance that could allow it to take protected industrial action, but the industrial action would be for a different purpose all together, perhaps for some sort of political cause or simply because there is spite or hatred between the actors or in proceedings. But there's no evidence of anything like that.
PN440
Indeed Mr Joyce recognises Mr Mavromatis as a tough and dedicated adversary, but they have a history of getting to the point of agreement. They did so last time, and I think, Commissioner, that should be relevant in forming your view here, that there is a likelihood of agreement being reached this time. Although the statutory test in some respects confine matters to the bargaining period, there is no reason why the Commission cannot look broader in informing itself as to what the union is doing. Indeed, generally speaking the union, the principal union involved here, the AMWU, does have a history of reaching agreement after playing it tough. Mr Mavromatis exemplifies or is an epitome of that reputation. He does play it tough but he knows when to call it a day and reach agreement, he's done so before. And, Commissioner, there's not enough here to suggest that he's trying to do anything differently on this occasion.
PN441
I might just add by just referring to two other authorities that to some extent are relevant in this matter. The first that I'll refer to is the decision of Commissioner Bacon in the BP Refinery matter. I'll simply cite the print number PR973642, but note that this was a decision issued in the context of exactly the same test that the Commission must satisfy itself of in this matter. This was a case wherein a union - well, the same unions pressed vigorously for increases in the proposed agreement, and the employer had expressed some frustration that the union had persisted with claims, claims that the employer characterised as - I can't recall the exact words but in a similar vein, unrealistic, excessive or not necessarily conducive to agreement.
PN442
And there were further allegations as to the conduct of the parties in the conduct of negotiations. But that was not enough to move Commissioner Bacon to refuse to issue the ballot order. At paragraph 33 the Commissioner said:
PN443
There is no evidence in this matter that the unions before or during the bargaining periods have not been prepared to seriously consider BPs offers and proposal. Indeed the evidence is that there have been secret ballots of employees to consider BPs offers.
PN444
At paragraph 34:
PN445
I'm reluctant to comment on the bargaining itself, it is ongoing ...(reads)... which are in reality inextricably linked.
PN446
THE COMMISSIONER: In this matter though we've got a number of other matters that are still outstanding.
PN447
MR TERZIC: Yes. But then there's further comment that should be persuasive, Commissioner. At paragraph 36 Commissioner Bacon says:
PN448
None of this attracts the Commission's attention as evidence of either side not genuinely trying to reach agreement.
PN449
And the relevant passage that I seek to emphasise is that:
PN450
Enterprise bargaining is often a robust business. Deadlocks such as this are often reached. Frankly, the parties have pretty well followed step by step a well trodden bargaining path. There is nothing improper in the bargaining styles, tactics or positions of BP, the AMWU or the CEPU.
PN451
Commissioner, while they might have moved closer to an agreement in the BP matter, the bargaining here would follow what we would say would be a well trodden path. This is when faced by a company that's refused to move in a significant way from its first offer tendered in the negotiations, that the union has similarly refused to budge. It's been a long distance joust seeking to have one side blink first. The union's blinked, they're moving. In my submission protected industrial action might make them move in one or more areas, and the parties could then quickly conclude and fold this whole thing up.
PN452
It's my submission that protected industrial action might well be the catalyst for agreement, but nonetheless the relevant test is set out at section 461. There's simply not enough evidence of any conduct by the union to refuse that order being made. If the Commission pleases.
PN453
THE COMMISSIONER: All right, thank you. Mr Wood?
PN454
MR WOOD: Thank you, Commissioner. Commissioner, can I start by saying that it's not Visy's attitude that is relevant in these proceedings. Visy is not applying for an order that it is entitled to lock out employees. It's the union, or indeed two unions that are applying. And the test is whether the union or the two unions have tried genuinely to reach agreement and are trying genuinely to reach agreement. The employer's position is not relevant to that test. It's a question of analysing objectively whether or not the unions are genuinely trying to reach agreement and whether they have genuinely tried to reach agreement.
PN455
Most of what Mr Terzic said, or a great deal of it was directed towards Visy's bargaining stance. That's not a relevant consideration other than to measure - other than as a way of trying to assist in the determination of whether or not the unions are genuinely trying to reach agreement or have been trying to do so.
PN456
THE COMMISSIONER: Yes, the reference in the statute is to the applicant.
PN457
MR WOOD: Exactly. And I understand why my learned friend puts it that way, because he wants to make a submission that's more in the industrial fairness. He wants to say, well, we're there and they're there and we haven't moved and they haven't moved, and just let it go through. But that's not really the question. You're not here to analyse whether or not people have moved or not. You're just here to look at the applicant's conduct and to see whether the applicant has genuinely tried to reach agreement or is - I'm sorry I keep calling it the applicant, your Honour, because I don't see the CEPU here so I thought I'd keep referring to them as the applicants have genuinely tried to reach agreement and are genuinely tried to reach agreement.
PN458
That's the first point we wish to make, Commissioner. So it's really a lot of what Mr Terzic asked Mr Joyce was irrelevant. Mr Joyce's evidence or perhaps opinion about the offers that he has made, apart from providing some context in relation to which he can judge the applicant's actions are really not relevant. Secondly, Commissioner, and this is perhaps the main point, the habits of a lifetime die hard. You've come from a system where ambit is an integral part of the system, that is, in award making you have to have ambit otherwise - and the High Court have said that you need ambit, and that there would be demands that would be allowed even though they might appear a bit extravagant or fanciful, to use your phrase, Commissioner, because there had to be a facility for the Commission when it had its award making power to maintain the settlement of that award and therefore there had to be some ambit in the dispute that gave rise to the award which was then made.
PN459
And there's nothing wrong with having ambit in a claim either. There's nothing in the legislation that says you can't have ambit within a claim. But we're in two different processes. Ambit as part of a log of claims to create a dispute was necessary, otherwise the dispute would have insufficient scope to enable the award to be kept up to date. Ambit, when one is trying to demonstrate that one is genuinely trying to reach agreement is not necessary. In fact it's counter productive because it tends to prove exactly what you shouldn't be doing. That is, if you come along and say I make an outrageous claim but there's ambit in it, that might be fine in the olden days for having a dispute notified and found, and an award made which is gradually updated.
PN460
It's not fine where one is trying to prove that you are genuinely trying to reach agreement, because by saying it you indicate that you're not genuinely trying to reach agreement by making the proposal that you make. You're saying that the proposal that you make is not a genuine proposal, that is, it is inflated, it is extravagant, it is fanciful, it has ambit. And that proposition is a difficult one because the system which we operate is so used to the concept of ambit and the need for ambit. And in any negotiation there is a need for some ambit.
PN461
But the unions come here today and they say we want to show that we are genuinely trying to reach agreement as of today and that we have been so acting. They can't prove that they have been genuinely trying to reach agreement and have been so doing where they say that the proposal they make is extravagant and is not genuinely pursued, that is, it has ambit. There is no suggestion from Mr Mavromatis, and we've heard nothing from the CEPU that despite the nice words around the bargaining period notice that the unions would take into account the individual circumstances of your business, that they have done anything of that nature. And indeed they haven't.
PN462
They haven't made any assessment of the industry in which it operates, they haven't made any analysis of the industrial and commercial pressures that operate upon Visy, and they haven't made any assessment of the cost of their claims. That failure demonstrates that the applicant isn't genuinely trying to reach agreement. If the AMWU and the CEPU were genuinely trying to reach agreement then there would be some assessment of those matters. There would be some costing of the claims and there would be some attempt to try to understand what sort of impact these sort of claims would have. But of course that's not what the unions have been trying to do.
PN463
What they've been trying to do is in effect set up an old style industrial dispute, that is, here's a log of claims, it's got plenty of ambit in, if a dispute was made in these terms then we could eventually have an award made which would have a life for some five or 10 or 20 years. That's not what the AMWU and the CEPU are allowed to do if they want to satisfy you of their compliance with this obligation in the legislation. They can of course do that. There's nothing wrong with doing it. But once they get to having to come to grips with section 461 they have to show the Commission that they have been genuinely trying to reach agreement and they are genuinely trying to reach agreement.
PN464
Now, Mr Joyce's evidence is that for five months from 19 May until 11 October there was a claim on the table which was unmodified, none of the claims were reduced, and the total cost of the claim was over 200 per cent over three years. Now, on any view, even under the tests that would apply to a log of claims that was a fanciful or extravagant or a sham claim. That claim is not genuinely made. Yet it was made and continued and pressed for five months. On any view that claim was not a genuine claim, and it can't be said that the applicant genuinely tried to reach agreement for that five months from 19 May to 11 October.
PN465
What Mr Terzic says is, well, have a look at Marshall Js decision, there was an aggressive claim in that case. But in that case there was no evidence that the claim from O'Connors was an ambit claim. If there had have been evidence that there was an ambit claim, that this wasn't a claim which was seriously pursued, if there wasn't evidence in the O'Connors case similar to the evidence that is in this case, that there were cost differentials between the company and many of its major competitors in processing of 22 to $30 per head multiplied by 150,000 head of cattle per annum, then it might have been said that in that case that claim by O'Connors by was not genuinely made.
PN466
But these things have to be looked at on the evidence in the circumstances of that case. And Mr Terzic is right to say that the particular skills the Commission brings to bear on this, one must have regard to those skills. It's all very well for a Federal Court judge who is not expected to keep up to date and to be abreast of industrial developments to find on a technical legal analysis on the evidence that what he's found. It's a different thing for the Commission being aware of the circumstances in which this industry finds itself and the circumstances which the Commission has articulated from the Bench, being aware of the industrial dynamics between the parties, being aware of the other wage outcomes which Mr Joyce deposes to, be aware of what the Australian government publishes as the relevant industry average.
PN467
It's a different thing for the Commission, in making that assessment, being aware of all these things, than for a judge to make that same assessment. And having regard to those matters the Commission is in a position to determine whether or not the applicant genuinely has tried to reach agreement and whether it is trying to reach agreement having regard to the commercial situation which Visy finds itself to other wages outcomes that have been obtained and to the general industrial environment.
PN468
And the advantage the Commission has is by - one doesn't rush lemming like then into protected action. It's all very well for the Federal Court to say, well, you've got a right to lock people out and that's your right, and the strict legalities of it are that you have. It's a different thing for the Commission having regard to these industrial circumstances to say, to in effect ignore the problems that protected industrial action might cause. They may well be a catalyst for agreement, Mr Terzic is right. They may also be a catalyst, as Mr Joyce says, for a further loss of customers by Visy which would impact then on the employees.
PN469
And the reason that the test is phrased in that way is that the Commission has to be satisfied that the applicant has genuinely tried to reach agreement and is genuinely trying to reach agreement so that industrial action is only taken as a last course. And Mr Joyce's evidence was, and there was no contradiction of his evidence, that if a genuine offer is made, and that doesn't have to be an acceptance of what Visy says. It can merely be in the circumstances something that's not extravagant, that's not fanciful, that doesn't amount to a 200 per cent increase over three years or, as currently calculated, an 80 per cent increase over three years.
PN470
If such an offer is made and if agreement is sought in relation to such an offer or such a claim then the Commission might say, well, having regard to the claim that's then made it can be satisfied that the applicant is now genuinely trying to reach agreement with the employer, so get your heads together and try and punch a deal because otherwise there will be industrial action. But the Commission is not in that position yet because the Commission has to be satisfied that the unions have genuinely tried to reach agreement, which it can't be satisfied about having regard to the nature of the offer, and that they are genuinely trying to reach agreement with the employer now.
PN471
The point about the extravagance of the claim, or the point about the claim is that it shows that the union is not genuinely trying to reach agreement. Not that it won't in some time in the future. We're not saying that there won't be any further movement, we're not saying that agreement is not possible. All we're saying is that at present it can't be said that the applicants are genuinely trying to reach agreement. We accept everything that Mr Terzic says, that there might be further movement, we accept that there's a possibility, indeed a probability of an agreement, we accept that it's likely that the claim will be further reduced. All those things we can accept, and I couldn't stand here today and seek to persuade you of anything else, Commissioner.
PN472
But we're not at that stage yet of being able to say the applicant is genuinely trying to reach agreement and has genuinely tried to reach agreement. No doubt if a similar application was made in two weeks or a month's time and the claim had been modified so that it is the one that exhibits genuine characteristics, then we couldn't be heard to say that an application for a ballot order shouldn't be granted. And we would rather expect that as a result of further meetings and further discussions and further modifications of the claims that such - I think Mr Terzic said that such scope for movement would actually - sorry, the movement would be exhibited.
PN473
But this so called union strategy of starting high and then moving to a genuine offer is one that they're entitled to adopt. But they can't adopt it and then insist that the Commission look into the crystal ball and say, well, you know what's going to happen tomorrow, or, you know that we're going to reduce the claim, or, you know we're going to reach agreement. All the Commission is being asked to do is to assess what's happened today and what's happening now, and on that assessment, having regard to the Blue Circle case and having regard to Boulton Js decision in the Coal and Allied case which we've extracted, the Commission can't be satisfied today.
PN474
Now, of course it might be satisfied some time in the future, but before that time comes it may well be that an agreement is reached. And, Commissioner, I think if I said much more I'd rather be repeating myself. I think I've dealt with what Mr Terzic has said, and I accept what he says, that it's really an assessment for the Commission to make having regard to all the circumstances in the Commission's know. But what you can't do is assess this case as if the claims had been reduced, as if we were dealing with this case some time in the future, and as if what Mr Terzic hopes to come to pass has come to pass. All we can deal with is the evidence as we find it at the moment.
PN475
THE COMMISSIONER: Thank you. Anything further, Mr Terzic?
PN476
MR TERZIC: Yes, Commissioner. I must take issue with the submission made by my friend as to the scope of the Commission's inquiry here, in that the conduct of the employer is not a relevant consideration. If that's how we put it I would implore the Commission to take a different view on that. What is being looked at here is the conduct of the applicant. But I submit context is everything. The conduct of the applicant can only be given any real meaning or significance by also giving consideration to the conduct of the respondent employer.
PN477
Commissioner, what you've been given an account of is a bargaining circumstance, and you've heard evidence as to what might amount to the bargaining tactics of the various parties. I've tried to construe that as the employer going close to a final offer type approach and the union starting off with a lot of ambit. Perhaps you could make an analogous observation to a boxing match where one of the parties takes a very defensive approach and the other party is jabbing and jabbing.
PN478
But there's been no real clear engagement between the parties. That will eventually have to come if there's to be an outcome. That might happen sooner or later, but at the moment the tactics the parties have taken are not inconsistent with a finding under section 461, and the actions of the union are not inconsistent with you making that finding. If the Commission pleases.
PN479
THE COMMISSIONER: Can I just ask one question. Is there a plan for a further meeting or meetings in relation to negotiations?
PN480
MR MAVROMATIS: There is, but they have stated that we may not meet with Visy any more.
PN481
THE COMMISSIONER: Is there a date set down for a further set of negotiations?
PN482
MR MAVROMATIS: I believe next Wednesday.
PN483
THE COMMISSIONER: Good. I'm going to reserve in relation to this matter. I was tempted to give an ex tempore decision, but I'm not going to do that. I think there are some issues that both advocates have raised here that I think are significant and need addressing and I intend to do that. But I won't sit on the decision, I'll get it out as quickly as I can and as succinctly as I can. But in the meantime I most certainly encourage the parties to keep negotiating and trying to find this common ground which might ultimately result in an EBA.
PN484
I'm sure there will be an agreement in due course, that's been the history, and I can only encourage the parties to keep their heads down and tails up and get to that point sooner rather than later. On that basis I'll adjourn.
<ADJOURNED INDEFINITELY [12.50PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
TONY MAVROMATIS, SWORN PN18
EXAMINATION-IN-CHIEF BY MR TERZIC PN18
EXHIBIT #T1 FIRST STATEMENT OF MAVROMATIS PN29
EXHIBIT #T2 SECOND STATEMENT OF MR MAVROMATIS PN29
CROSS-EXAMINATION BY MR WOOD PN33
EXHIBIT #W1 STATEMENT OF MR JOYCE. PN45
FURTHER EXAMINATION BY MR TERZIC PN109
FURTHER CROSS-EXAMINATION BY MR WOOD PN120
FURTHER RE-EXAMINATION BY MR TERZIC PN135
THE WITNESS WITHDREW PN149
STEVEN ROGERS, AFFIRMED PN151
EXAMINATION-IN-CHIEF BY MR TERZIC PN151
EXHIBIT #T3 STATEMENT OF MR ROGERS PN158
CROSS-EXAMINATION BY MR WOOD PN167
THE WITNESS WITHDREW PN208
ROBERT JOYCE, SWORN PN211
EXAMINATION-IN-CHIEF BY MR WOOD PN211
EXHIBIT #W2 STATEMENT OF MR JOYCE AND EXHIBITS, DATED 12/09/2006 PN230
CROSS-EXAMINATION BY MR TERZIC PN237
THE WITNESS WITHDREW PN398
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