BP2006/2591, Transcript of Proceedings [2006] AIRCTrans 752 (19 May 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15006-1

COMMISSIONER GAY

BP2006/2591

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
AMCOR PACKAGING (AUSTRALASIA) PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/2591)

MELBOURNE

10.03AM, FRIDAY, 05 MAY 2006

Hearing continuing

PN1

MR B TERZIC: I appear on behalf of the AMWU.

PN2

MR S PILL: I seek leave to appear on behalf of Amcor Packaging (Australasia) Pty Ltd.

PN3

THE COMMISSIONER: Mr Terzic, do you say something about the application for leave?

PN4

MR TERZIC: I would accede to it.

PN5

THE COMMISSIONER: Leave is granted, Mr Pill. Yes, Mr Terzic.

PN6

MR TERZIC: Commissioner, these proceedings have been brought on quickly as required by the Act and it's just been for this first time this morning that I've had an opportunity to confer with Mr Pill about the position his client will be taking or what his instructions are on this application. I hope I don't misrepresent him, but he can speak for himself later, he has indicated to me that he'll be challenging the application on various bases, from what I understand, to be challenging the application on the basis of the application being invalidly made and also the question to be put in the vote.

PN7

THE COMMISSIONER: Something is invalidly made, the application itself?

PN8

MR TERZIC: Yes.

PN9

THE COMMISSIONER: All right. Off you go.

PN10

MR TERZIC: There are other issues I would like to raise before I take the Commission through the application as made and how we say the application conforms to the requirements of the Act. I would perhaps immediately direct the Commission's attention to the orders and directions that were issued by you yesterday and raise some practical considerations and perhaps jurisdictional considerations as to the order.

PN11

THE COMMISSIONER: Yes. Mr Terzic, I don't think really much turns on this but I bring to notice, I spoke to Mr Pill last night, I don't know what time it was, but it was getting later in the afternoon, trenching on evening. It felt like evening to me. Mr Pill hadn't received some information and he called my associate, I took the call and I faxed him, with the help of someone, the bundle of material which I thought had gone earlier. I don't know, the facsimile report said it had been successfully despatched so that describes a brief interaction that occurred later on yesterday afternoon.

PN12

MR TERZIC: That's useful to know, Commissioner. I'll commence the union's submission by first dealing with some of the matters that the union finds perhaps problematic in the orders and directions already made. Firstly, the Commission has at this stage already made orders for the company, Amcor Packaging (Australasia) Pty Ltd and the union, the AMWU, to compile a list of potential voters in the ballot. In that regard it might be that the Commission has made those orders prematurely and without the necessary jurisdiction and I would turn the parties' attention to section 466.

PN13

Section 466 deals with the requirement of the Commission to have a list of names compiled of persons who are eligible to be included on the roll of voters and then to make an order, a separate order, authorising the ballot agent to compile the roll of voters for the ballot. It is, however, prefaced by what might be called a condition precedent that the Commission must firstly make the ballot order, which hasn't been done. Nonetheless, without being in any way critical, I can see some degree of utility in the course the Commission has taken because it has put the parties on notice that in a very short timeframe such an exercise must take place. What I'm alluding to is, there might need to be a separate order issued if the ballot order is made that would in effect do what the Commission has already done.

PN14

THE COMMISSIONER: Yes. I think it's important to note that what has been circulated is a draft ballot order and it is the case, of course, that in this thicket of particularity, the Commission is also enjoined to adopt a practical approach and to - well, I don't know whether that's done in terms, but it is necessary for very strict time lines to be conformed with and it does impose obligations on really everybody. I suspect, even though that there will be no formula applied in these things, it will be a practice thought to be valuable and adopted by the Commission for a draft order of that sort to be circulated to the applicant, the employer and where relevant the AEC so that it's more likely for the hearing to run smoothly and there to be less likelihood of an adjournment. That's particularly so if the ballot agent has had an opportunity to consider the draft order and any changes that the ballot agent thinks are necessary in the particular circumstances.

PN15

All I say at this juncture, Mr Terzic, is that that is a draft order and it shouldn't be thought of as fixed and certainly I have no fixed view about it. I'm quite happy and prepared to hear submissions on all these things, of course, and to make the necessary modifications as I might be inclined.

PN16

MR TERZIC: Yes, Commissioner. As to the order that you have actually issued, as I said, at paragraph 3, the order that has been sent to me.

PN17

THE COMMISSIONER: Which order are you referring to there?

PN18

MR TERZIC: The order that was entitled Orders and Directions.

PN19

THE COMMISSIONER: Yes.

PN20

MR TERZIC: As I said at paragraph 3 where it ordered that the parties compile a list of potential voters. That is arguably premature and that will have to be redone if the ballot order is done pursuant to section 466, on my reading of that section of the Act.

PN21

THE COMMISSIONER: Yes, and that must constitute an act of the Commission and one anticipates it would. When the Commission has made a ballot order requiring such a list to be compiled and that list one would expect would be in the terms about which the parties have been brought to notice.

PN22

MR TERZIC: Nonetheless, I do say that there appears to be some utility in putting the parties on notice at an early stage that such an exercise must be undertaken if a ballot order is issued and because of the short timeframes it does put the parties on notice that this is a requirement that might fall to them.

PN23

THE COMMISSIONER: Yes. It also can be said usefully that it shouldn't be taken - and I can see that it might be taken - as reflective of a determination already made by the Commission in relation to section 466 and that would be - somebody thought that would be in error.

PN24

MR TERZIC: Yes. While I'm addressing the compilation issue, there are some further practical issues I would wish to raise with the Commission. Firstly, the information that is required on the order already issued, in my submission could be usefully augmented with the following: for the employer, at paragraph 3.1 there's a series of points listed there, phone numbers, mobile phone numbers and email addresses would be a very useful addition, and I'll deal with that shortly, and the employees' payroll number on the list they're given. Similarly, for the union list, telephone numbers, mobile phone numbers if known, membership number is already there, would be very useful. It would be useful because once the two lists are drawn up they are then to be despatched to the Australian Electoral Commission electronically and if the AEC officer notices discrepancies in the list, if they don't concord, the AEC officer has a very short timeframe to inquire into and determine why the lists don't - - -

PN25

THE COMMISSIONER: Yes.

PN26

MR TERZIC: It might be all sorts of relatively innocuous reasons such as married names appearing on one list versus maiden names on the other, et cetera. If the AEC officer has the person's phone numbers they can expeditiously call the person, verify his or her identity by reference to payroll number and union membership number and then ensure that the list is as accurate as possible in all the circumstances.

PN27

THE COMMISSIONER: Yes, I understand why you put that and certainly the payroll number you would expect shouldn't be the subject of any duplication. That should assist. I can think of a myriad of reasons why there would be difficulties in relation to names, the rendering of names and changing of names, but there shouldn't be a multiplicity of payroll numbers in any business carefully run.

PN28

MR TERZIC: Finally, in the order and directions already issued at 3A.3, the union there is required to furnish a declaration in accordance with the regulations that includes all of the employees whose employment will be subject to the proposed agreement. Commissioner, we can't do that because the union is unaware of the AWA status of all of the employees. We can provide as much information as we have to indicate the veracity of the list, but that appears to be perhaps an overzealous exercise in regulation making by the Minister. We will do our best to comply but perhaps we can't comply fully.

PN29

THE COMMISSIONER: Just tell me what it is that you think you can't comply with.

PN30

MR TERZIC: There's no way the union can know all of the employees who will be subject to the proposed agreement because employees who are on AWAs whose nominal expiry dates have not passed, will not be subject to the proposed agreement and we can't verify that.

PN31

THE COMMISSIONER: That's a level of distillation that's not within your capacity. Is that what you're saying?

PN32

MR TERZIC: Yes.

PN33

THE COMMISSIONER: Whereabouts in the orders do you think it casts the net too widely?

PN34

MR TERZIC: It appears the Commission is just requiring what the regulations prescribe and it's the regulation probably that's more at fault than the Commission in this instance, but I'm just alerting the parties to a problem in the regulations. The union can only do this to the best of its knowledge and that will be done at any rate.

PN35

THE COMMISSIONER: The order that's been circulated for the assistance of the parties, that's 3.A you're referring to, Mr Terzic?

PN36

MR TERZIC: I'm looking at on page 2, 3A.3 where it says that our list must be accompanied by a declaration in accordance with regulation 9.93, chapter 2, namely a declaration that the list includes all of the employees whose employment would be subject to the proposed agreement. For the reasons I've given, we simply can't do that but we can furnish a declaration saying that the list we have compiled is as accurate and as truthful as our records disclose.

PN37

THE COMMISSIONER: Your comment goes really to the fidelity of the compilation of the list, it seems to me, but the point would be rather, if I'm understanding what you're putting, that your declaration would be accompanied by - would contain a caveat to the effect that there may be people whose status in relation to AWAs would mean they would not be subject to the proposed agreement and that's something that's not within your knowledge.

PN38

MR TERZIC: To identify who those persons are. The company would be able to identify who those persons are.

PN39

THE COMMISSIONER: But are you foreshadowing that the way you propose to give effect to 3A.3 would say something along those lines.

PN40

MR TERZIC: Yes, with a disclaimer to that effect.

PN41

THE COMMISSIONER: Yes. All right. Thank you.

PN42

MR TERZIC: There are some further issues that we have with the draft order and I'll fix the easy one first. The draft order at various parts replicates the draft order that was filed with the application by the union yesterday. The question to be put to the relevant employees in the draft order is not the same as the question to be put in the application and that's an error that lies wholly with myself, Commissioner. In finalising the application and the other papers, there was a last minute change to the question to be put and that alternation was not made in the draft order as filed. The question to be put in an order, if made, is simply that as found in the application and that's just a change that will need to be made.

PN43

THE COMMISSIONER: Can you read that out, what you say the question is that - Mr Pill, presumably, would have the version that you say is the correct one, but it might be helpful if you - and I'm looking now, as you read it, at the draft order.

PN44

MR TERZIC: The draft order says one thing, the question to be put is found in the application as filed and it encapsulates the nature of the industrial action proposed which is set out immediately above in the application. The question to be put, that we seek, and as set out in the application is, and I quote:

PN45

In support of reaching a union collective agreement with your employer, do you endorse the taking of protected industrial action ...(reads)... and warehouse employees on the Kyabram site.

PN46

That we would have to substitute for the order, if made, rather than what's in the draft order.

PN47

THE COMMISSIONER: The difference, and there may be others, but the only one I detected was may involve in the - are there others?

PN48

MR TERZIC: It has some particularly in how the rolling stoppages - - -

PN49

THE COMMISSIONER: Yes.

PN50

MR TERZIC: That's the essence of the change.

PN51

THE COMMISSIONER: The question to be put is that from the application.

PN52

MR TERZIC: Yes.

PN53

THE COMMISSIONER: Yes, I see it's on there.

PN54

MR TERZIC: I'll stay with the materials served on the parties by the Commission for the moment before I get into the application proper and there's one other matter which again of a technical nature that should be addressed.

PN55

THE COMMISSIONER: Is this the hard one, Mr Terzic, you're coming to now?

PN56

MR TERZIC: Not necessarily, Commissioner. Hopefully it can be explained in relatively simple terms. The timetable for the ballot, therein the Commission has proposed a timetable and it is our view, and I think Mr Pill concurs in this respect, and I'm anticipating an officer from the Australian Electoral Commission to perhaps address the Commission on this, although (1) it has not made an appearance. There is one present in the court.

PN57

THE COMMISSIONER: Yes, I'm advised.

PN58

MR TERZIC: Yes. The timetable is just too truncated to be put into effect. Firstly, attempting to close the roll of voters on Monday, 8 May, which is perhaps around the same time that the Commissioner has already proposed that the lists required off the union and the employer are sent to the AEC, would not give the AEC a chance to question any apparent irregularities or mismatches in the two lists. The AEC might need some time to make inquiries of the nature I've spoken about before.

PN59

THE COMMISSIONER: Yes, I can see that.

PN60

MR TERZIC: I won't go into - - -

PN61

THE COMMISSIONER: No, it's clearly something Mr Pill might say, it's a fairly - difficulties with the timetable.

PN62

MR TERZIC: Yes. So there should be a few more days allocated for the closing of the rolls and another reason, which I won't go through at length, is simply that persons who might feel excluded from the roll of voters should have a chance to seek to rectify that situation. That is captured in the Act and particularly at regulation 9.8 in chapter 2. It's my submission that if the timetable was drawn out somewhat, all of the requirements of the Act and regulation could be met.

PN63

As for the opening and closing of the ballot, it appears that the Commission is proposing - and it's nothing higher than that - that there is some view that an attendance ballot might be appropriate in these circumstances and we'll put evidence on as to the appropriateness of an attendance ballot. In discussions that my colleagues have had with the Australian Electoral Commission, there was perhaps a view taken that an AEC officer would be present while the ballots were actually being placed into the ballot box. If that meant that an AEC officer would be attending the site for 24 hours, that might be a bit of an onerous requirement. There might be practical ways that issue can be addressed and upon the evidence and further submissions we might deal with that and perhaps some consultation with the AEC might find a satisfactory answer for that.

PN64

THE COMMISSIONER: And indeed with Amcor, one would have thought.

PN65

MR TERZIC: Yes. In principle we have no objection to a tamper proof ballot box being left unattended by an electoral official. We certainly don't apprehend that Amcor would do anything irregular with the ballot box. If it was placed in a secure location where it couldn't be tampered with, that was mutually agreed between Amcor and the union, perhaps there might be a way of having an attendance ballot without attendant problems and without necessitating an AEC officer having the ballot box under his custody and control at all time.

PN66

Now that I've addressed some issues going to the materials that I've received from the Commission, I'll turn to the application itself.

PN67

THE COMMISSIONER: Yes, thank you.

PN68

MR TERZIC: It might be instructive for the parties to have a copy of the application at hand at this stage.

PN69

THE COMMISSIONER: I'm sorry, Mr Terzic.

PN70

MR TERZIC: Copies of the application at hand as I go through various parts. Just - - -

PN71

THE COMMISSIONER: Show Mr Pill, I guess.

PN72

MR TERZIC: The application has been made on the form that has been taken from the Commission's website and it starts off by setting out the relevant information, including the parties' contact addresses, et cetera, and also the name of the employer. It sets out the nature of the industrial action and one can see that the nature of the industrial action has been incorporated into the question to be put and it sets out the type of the employees to be balloted. Essentially, they are union members employed at Amcor who are not currently working under an Australian workplace agreement, that nominal expiry date has not passed when the ballot order is made and the union has sought to use the Australian Electoral Commission as the authorised ballot agent.

PN73

One of the requirements of the Act is that a copy of the application be served on the ballot agent and the employer within 24 hours and that was done. I've got evidence of that if it's required but I think that's not going to be objected to. Then, as filed, a copy would not be available to the company, the respondent in these proceedings, but there were all of the declarations, et cetera, required and attached.

PN74

Commissioner, for some time the union has been trying to negotiate a collective agreement to apply to employees of Amcor's Kyabram operations. The agreement would have the effect of replacing the existing collective agreement. The existing collective agreement's nominal expiry date has now expired and in support of reaching such an agreement, under section 328 of the Act, the AMWU now seeks to take protected industrial action under Part IX of the Act.

PN75

It's the AMWUs submission that the union has complied with all the necessary prerequisites to have an order made in appropriate terms, and we'll deal with the terms of the order later, but they would essentially be in the terms that have already been discussed.

PN76

The documents that have been filed have been done so in accordance with the requirements of section 453 of the Act and the AMWU notes that prior to the Commission making an order, the Commission must be satisfied of various states of affairs and they are set out at section 461. In that regard I propose to call a witness to give evidence on the requirements set out at 461 and in brief those requirements go to whether the AMWU has genuinely tried to reach agreement with the employer during the bargaining period. That would only include the period from when the bargaining period was lodged which is appended to the application, and that is from 31 March. The evidence should show the AMWU continues to try and reach an agreement and that the AMWU is not engaged in pattern bargaining, as defined in the Act. In relation to that I now call
Mr Damian King.

<DAMIAN PATRICK KING, AFFIRMED [10.33AM]
<EXAMINATION-IN-CHIEF BY MR TERZIC

PN77

MR TERZIC: Mr King, could you just give your name, address and occupation once more, please?---Damian King, state organiser AMWU covering northern Victoria. My address, is that the other thing you wanted?

PN78

Business address will do?---Business address: View Street Bendigo.

PN79

Mr King, I noticed when you walked into the witness box you were carrying a document with you?---Yes.

PN80

May I approach the witness, Commissioner?

PN81

THE COMMISSIONER: My associate will do that for you.

PN82

MR TERZIC: Mr King, will you look at the two documents I've just handed to you. Do they appear to be the same as the document you've got with you at the moment?---They appear to be the same document.

PN83

Commissioner, the document I've just referred to I would like to tender as an exhibit in these proceedings.

PN84

THE COMMISSIONER: Yes. It may be useful to mark the application in this matter with its attachments.

EXHIBIT #AMWU1 APPLICATION
EXHIBIT #AMWU2 DOCUMENT

PN85

MR TERZIC: Commissioner, I can further confirm that the document that I've distributed is the same as the one Mr King has in the witness box with him.

PN86

Mr King, can you describe how this document came about?---This document is really a compilation of documentation that I put together on the process and the progress of negotiations. It commenced after we served the bargaining period notice at the end of March and it's then really intended to highlight the key or significant events in terms of the process of negotiation.

PN87

The front three pages of the document, did you write them?---I put this document together and I really put this document together progressively from the start of the negotiation.

**** DAMIAN PATRICK KING XN MR TERZIC
PN88

At paragraph 1 you've said that you've attached a copy of 31 March 2006 AMWU bargaining notice served on the company. That's correct?---That's correct.

PN89

The attachment that you've marked 1 is a copy of that bargaining period notice?
---That's correct.

PN90

Then at paragraph 2 you've stated something to the effect:

PN91

7 April 2006 enterprise agreement negotiations took place at Kyabram site. Meeting started at 1 pm.

PN92

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

PN93

Then you've put down the following summary of significant matters at this meeting. You say in the document the company tabled a draft enterprise agreement document. Is that correct?---That's correct, yes.

PN94

MR PILL: Commissioner, can I just interject. I would like to state, if the witness is being called to give evidence of his recollection of the enterprise bargaining process, then absent his need to refresh his memory, he should give that evidence. The effect of the document the way Mr Terzic is using it is effectively just a mechanism to enable leading questions to be asked of the witness. Whilst I don't object to the document, and I didn't object to the document being tendered, I'm not sure, other than Mr King having already confirmed that he prepared this document, the utility of these sorts of questions and I object on that basis.

PN95

THE COMMISSIONER: Mr Terzic, it may take a little longer, but go on. You know it's obvious to me that the evidence comes from the witness.

PN96

MR TERZIC: Mr King, without looking at the document now, could you turn it over.

PN97

THE COMMISSIONER: Mr Terzic, I'm not so fussed about him having the document face up, because it's not really a test of his memory at this stage. That sort of contest isn't abroad but you take him through the material by asking him questions which don't lead, that's all. I don't think Mr Pill was looking for any other fetter.

PN98

MR PILL: No. Perhaps I can assist my friend. Part of the point that I was making was Mr King has attested to the fact that he produced the document. I believe he has attested to the fact that he believes it's accurate. Mr Terzic then asking him line by line is that correct, doesn't advance that evidence.

**** DAMIAN PATRICK KING XN MR TERZIC
PN99

THE COMMISSIONER: Mr Terzic, I'll let you put the case the way you want to. I don't need to be read to. He can identify it's his own document, he says it's accurate and so on. You can take him through it. Mr Pill doesn't want you to lead him. Sometimes it's not objected to on this sort of stuff, but there it is. You can take him through it in a way that's not objectionable, I know.

PN100

MR TERZIC: It's just to confirm by way of sworn evidence events that Mr King has direct knowledge of and there was simply not enough time to put together an affidavit that could have been sworn.

PN101

THE COMMISSIONER: There's no problem preventing you, Mr Terzic, just push on.

PN102

MR TERZIC: Sure. Thank you, Commissioner.

PN103

THE COMMISSIONER: There may be problems but the way you examine your witness is not going to be one of them. Off you go.

PN104

MR TERZIC: Just to recapitulate, on 7 April there were agreement negotiations at the Kyabram site. Is that your recollection?---That's right.

PN105

What occurred at those negotiation sessions, and you've been allowed by the Commission to look at these notes to refresh your memory?---The company presented a detailed draft agreement document. The prime purpose of that, it wasn't intended as a definitive document but it was the intention to look at the previous agreement document to produce a draft that was compliant with Work Choices. I think the company acknowledged it had a bit of work to do in terms of understanding that, and we did, but they presented a detailed document, probably 30 or more pages. We went through and there were a number of issues raised in terms of the views on the Work Choice aspects. The company also said that there were, I think, four or five clauses - I might be wrong but there was a number of clauses that they wanted to delete not because of Work Choices, because they felt that they were no longer relevant to the company's operation. There was discussion occurred around those points and basically - - -

**** DAMIAN PATRICK KING XN MR TERZIC
PN106

Can I just stop you there for a minute. Can you just give your best recollection of the discussion on that latter point, about - - -?---There were a number of clauses that related to - they were more sort of production type clauses that relate to the production process in terms of people's knowledge of issues that relate to customers; issues that relate to quality, I believe; issues that related to the process of manufacture and the knowledge that people got. The company wanted to delete those. There were some - as I said there were some deletions that the company wanted to make to take account of Work Choices and we discussed those and why the company wanted to do that. Some of the matters we probably indicated that we understood where they were coming from. We wanted some further time to consider it. Some of the matters they are putting forward we had some problems with and some objections.

PN107

Mr King, can you recall who was present at this meeting?---My recollection, I believe Boris Laba, the company human resource person; Graham Ginns, the site manager. I believe there were a number of other company officers that are based at the Kyabram site that were there but I can't be totally accurate in terms of those individuals.

PN108

How long did the meeting last?---It would have lasted around two hours.

PN109

For that two hours, was that taken up primarily by discussions?---That was - look, there might have been a couple of breaks where the parties went away to consider various matters, but it was virtually all taken up with discussions around the issues that are covered in the documentation that's there. There might have been one other - one or two other minor points that I haven't covered there perhaps, but it was - covered up the whole process of the negotiation and addressing the matters that the company is seeking to have in the agreement and our members were seeking to have in the agreement.

PN110

To what level would you say there was an exchange of ideas and views at that meeting?---I think there was a very comprehensive exchange of views because we went through a draft agreement document which covered virtually the whole scope of what the company was about. We also went through the claims that the members had raised on the job. There were some issues that people raised on the job. The members wanted to improve the redundancy package. There had been some redundancies in the last year or so at Kyabram so the members had said they felt that was an important issue there. There were some concerns around when people are crook, people wanted to look at better provisions in terms of accident pay and in terms of income protection. That's an issue they'd raised with the union, with myself and the delegates and therefore that was in a log of claims and that was discussed in those negotiations.

**** DAMIAN PATRICK KING XN MR TERZIC
PN111

In your answer, Mr King, you referred to views that you had reached after speaking to union members, employees and delegates. Can you elaborate on that, please?---Well, effectively, the position that we took to those negotiations was the result of a process of discussion that would have occurred over at least the previous two months, could even go back a little bit further when our members had raised issues that they wanted to see addressed, improvements that they wanted to see achieved, concerns about things that they felt were appropriate for a new agreement at the Kyabram site and members had indicated to us with the introduction of Work Choices that they wanted to continue with that agenda that had been formulated. We had a clear direction from the members to negotiate on those matters that were relevant to the operation of the site and the priorities and concerns of the members at that site.

PN112

At what's labelled attachment 5 to the document, have you seen that letter before?
---That's a letter that I wrote to the company. Effectively during the negotiations on 7 April the company indicated that it didn't like our position in terms of a claim for one week of extra annual leave, to move to five weeks' annual leave across the board. We did have at the - so that was put forward at a report back meeting after the discussions with the company on the 7th. We had a report back meeting at 3 o'clock and the members endorsed the position that we withdraw that claim, we consider the position of the company. People were prepared to withdraw that matter and the members gave us an endorsement to do that and that's why that's reflected in the letter I sent to the company a couple of days later, to the site manager. The second matter is that during the negotiations on the 7th, one of the matters that's covered - I believe it's covered in my summary document, the members have had concerns in terms of annual leave and site shutdown arrangements. People wanted a bit more flexibility in terms of their ability to take annual leave rather than significant proportions of it and virtually all of it to be locked into shutdowns, they wanted some individual discretion, shall we say, in terms of how they take leave and they wanted to have greater notice in terms of shutdowns. So we tabled a draft clause at the 7th, based on what we felt the members had put forward that was some modification on our position in the claim, yet we felt would still achieve the key objective that the members were concerned about. We did say at the negotiations on the 7th - we were sort of feeling the company out, trying to get a feel for how they felt about it. They said they would go away and consider it. We put it to the members and they basically endorsed the position that we had so I wanted to notify the company that was a firm position of ours now.

**** DAMIAN PATRICK KING XN MR TERZIC
PN113

By 12 April did you send an email to Boris Laba?---Yes. What was basically said at the discussions on the 7th was, we went through the company draft and we said, "Well, look, we would consider the issues in terms of the amendments that are required to produce an agreement that is Work Choice compliant," based on the existing agreement rather - really separate from dealing with the claims as such. I said that we would do a revision of that. We had some different views on that front and therefore over the following days, in consultation with the stewards, I produced a revised draft. It was never really meant to be a definitive draft but it was meant to significantly progress the issue in terms of what would achieve a Work Choice compliant agreement and on the Wednesday, the 12th, that document that is attachment 6 I emailed to the company for that purpose.

PN114

On 21 April 2006, what occurred on that day?---We had some further negotiations with the company on 21 April. We went through a broad range of issues that needed to be addressed in the negotiation process. The first one was, we got confirmation that we agreed on a nominal expiry date at the end of March 2009. We had previously, prior to the introduction of Work Choices floated a new clause that we would like to see in terms of accident make up pay so we confirmed at that discussion that the document that the company already had reflected our position under Work Choices, what we wanted to see as a new clause on accident make up pay to improve the benefits that the members receive and meet the concerns that members wanted to achieve. We then went through the issue of, as I said before, one of the claims was for income protection. I understood that the company, the site manager, Graham Ginns had put a position that the company would be prepared to look at the members having income protection coverage, provided the cost of that was taken out of any pay rise that was agreed in negotiations and advised the human resource guy. He didn't seem to be aware of that. I had some doubt as to whether that was the company position so obviously that caused an interesting exchange in the negotiations, shall we say. We then discussed a matter that related to the smoko and tea break arrangements and one of the shifts, there had been an informal arrangement entered into how an additional break was taken and the members had put a claim forward that they wanted to have that arrangement incorporated in the agreement and applied to the other shifts. We had previously had some discussion on that with the company and with the members and really the view that the delegates and myself formulated was, well, look, we seem to have reached an arrangement on the job that everyone was comfortable with, the company didn't seem to want to put it in the agreement document so we said, "Look, we're prepared to go back to the guys and see if we can withdraw that issue," so we indicated that. At a subsequent meeting with the members later in the day, I think it was a week later the members actually endorsed that position, that we would flag the next part of the negotiation process. The clause that I'd previously referred to, talking about the correspondence we'd entered into after the 7 April meeting on annual leave and site shutdowns, there was some discussions around that. The company said it was considering its position but it did indicate it had some concerns if the position was put in that clause. There was lengthy discussion around that matter. We went through a document that we'd previously tabled, that we'd said we wanted to talk about within the scope and terms of our bargaining notice in terms of union's claims or claims from the members. We didn't make any progress on those matters. We then had a lot of discussion around the terms of an agreement document. Effectively we had a view from - we had a draft from the company and a draft from the union in terms of how we produce a Work Choice compliant document based on the established terms that are agreed on the site. There was some different views from the company and the union but we went right through that in an awful lot of detail. We then addressed the company's claims that they'd effectively put on us in terms of doing away with or diminishing RDO entitlements, putting in place alternative shift arrangements and effectively reducing sick leave entitlements without a medical certificate. We indicated that we didn't support those and we weren't prepared to accept them and there was quite a bit of discussion. I think the company then tabled documentation on a without prejudice basis, to be fair to the company, in terms of possible alternative shift arrangements they would like to be looked at. There was an awful lot of discussion around that sort of point. There was an issue that the company had raised in one of its documents. It's not attached to my - this here, but they raised some documentation, some issues they wanted to look at. They flagged that they wanted to review call back provisions at a previous meeting, I believe it was the 7th, but I may be wrong, but previously to the 21st they definitely raised them, wanted to look at that issue.

**** DAMIAN PATRICK KING XN MR TERZIC
PN115

I'll just stop you there, Mr King. Without going into the minutiae of the exchange of ideas to that level, could you look at page 3 of the document you have with you?---Yes.

PN116

In brief, could you just give an account of the events that are described in paragraphs 7, 8 and 9?---Seven, 8 and 9. Well, look, we then went back to the members to report on where things were at because we wanted to make sure that the negotiations reflect what's going on at the site, the priorities and concerns of the members and we obviously we needed to get feedback from them in relation to what the company is putting forward, so effectively we reported all that had occurred, or as best we could and I think it was fairly comprehensive what had happened at the discussions that had just occurred prior. We really didn't make any sort of decisions there but we just gave everyone a report. The members said, "Well, we want to think about all that and we want to have another meeting a week later to perhaps make a few more decisions." It was said that we looked to have a further meeting with the company on the 28th, but it wasn't locked in. The company indicated they could have some problems with that day and we said, "Look, we're going to have some further discussions with the company." So then after I received a phone call from Boris, the human resource guy, which is point 8 on 26 April, we indicated they had a problem with the meeting on the 28th and I said, "Well, okay, fair enough, we'll seek to meet on 5 May." which is today and I sort of said, "Well, I'm going to need to have a meeting with the members. I expect just to have a meeting and we're going to go ahead with that." I then - on point 9, one of the issues in the draft agreement document I'm trying to come to grips with is what sort of disputes procedures do you have in the agreement because there are requirements under Work Choices which are significantly different than what occurs. I'd previously forwarded a draft which was a draft I said, "Well, this is the sort of thing that the union's looking at," but it wasn't a definitive position. I said I was going to do a bit more research on that and I had a bit more refinement of that position, still a few things we were looking at. So point 9 is on the 26th. I did email to Boris, the human resource person, the revised draft of that.

PN117

Mr King, do you think you could give an estimate of the number of occasions you've had communications with representatives from Amcor over the last month?
---Look, there's been two face to face meetings.

PN118

Telephone calls, et cetera?---Look, I say there might have been three or four phone calls, okay, and there would have been a number of email communications that also occurred.

**** DAMIAN PATRICK KING XN MR TERZIC
PN119

On occasion in the telephone communications, has a representative of the company tried to call you but not been able to get through the first time around because your phone was turned off and you had the message service on?---Look, I don't know. I can't - the company could have tried to ring me and they didn't leave a message, but look, I think there's been - readily - accessibility on my behalf and accessibility on the company's behalf in terms of trying to work through the issues in the negotiation process.

PN120

Mr King, is it your intention to continue with the process as just described?---Yes, it definitely is. I did - obviously when I found out yesterday afternoon that these proceedings were on today, obviously the Commission takes precedence over agreement negotiations. I did contact the company, I spoke to - I rang
Graham Ginns, the site manager, and Boris, the human resource person and said, "Look, obviously we're not going to be able to meet tomorrow? I proposed to them that we meet on Monday to have some further negotiations and I think the company is considering what they can do but I've put that proposal forward and I've tried to indicate we're seeking to reach an agreement and we want to obviously continue the negotiations.

PN121

Mr King, over the last six months, how many enterprise agreements have you negotiated, apart from this one?---Look, I don't know. I've probably only done about half a dozen in the last six months. There's - the last six months has been a bit of a build up period, shall we say, to this period.

PN122

Could you explain to the Commission if the other agreements you've negotiated recently are identical or almost identical to the Amcor agreement?---No. Look, every agreement is different. This Amcor agreement here is - I've got the previous one, the draft document we're looking at. There are a whole range of clauses that are totally different in terms of the Amcor agreement. I actually just negotiated an agreement, for what's worth, before Work Choices, with the company's major competitor, Visy, in Shepparton and there's a totally different agreement document there, that was agreed there.

PN123

There was no collusion between Amcor and Visy here, was there?---Look, I can't answer on behalf of them but I definitely know that the union has negotiated quite independently and separately on the basis of the individual site requirements.

PN124

Mr King, I want to move the questioning away exactly from the bargaining aspect of your activities at the Kyabram site. I want to ask you some general questions about the Kyabram site and the way work is carried out there?---Yes.

**** DAMIAN PATRICK KING XN MR TERZIC
PN125

About how many union members work at Kyabram?---There would be around 50 AMWU members at Kyabram.

PN126

What sort of work do they do?---There are maintenance people. There would be three or four maintenance fitters there. The vast majority of people would be production employees that are involved in the actual manufacture of cans, food cans on the site and there would be perhaps four or five, I might be a little bit out there, that are involved in the warehouse operations, effectively the packaging and despatching of the cans on trucks and probably also involved in getting the raw materials into the plant as well.

PN127

Would you describe the site as heavily unionised?---I would describe the site as heavily unionised. I think virtually everyone who works on the site within the scope of those areas in the union, might be one or two people that aren't, but it's virtually a full union shop.

PN128

They work shifts there?---They work shifts, they work - it's effectively a round the clock operation at the moment five days a week in terms of normal rostered time. There's a day shift that goes from 7 am in the morning till 3 o'clock or thereabouts and then an afternoon shift that goes from three till 11 and a night shift that goes from 11 till seven.

PN129

Mr King, you're aware that these proceedings are in support of the holding of a ballot for protected industrial action?---Yes, I'm aware of that.

PN130

Mr King, are you aware of the term "attendance ballot"?---Yes.

PN131

Can you explain to the Commission what you think it means?---I understand that means that the ballot is - the ballot takes place where the individual employees are present when the process of receiving the ballot paper and casting the vote occurs at the same site, the same location for everyone and my understanding of it is that would normally occur or is envisaged to occur at the site where people work.

**** DAMIAN PATRICK KING XN MR TERZIC
PN132

Mr King, have you given thought to the practicability of holding an attendance ballot for the purpose of these proceedings and if so, could you give your thoughts to the Commission?---Yes. We've - I've definitely considered it and I've obviously spoken to our shop stewards at the site at length about this matter. As I said the - we believe that the - an attendance ballot would get the highest return in terms of people casting a vote and would be the most efficient way to carry the vote - carry out the vote in terms of getting it done as promptly as possible . So we believe it would get the best return, get the most accurate reflection of people's views and get it done as promptly as possible because if we have a situation where the electoral office or whoever is conducting the ballot is on site, if we opened the ballot, I think what we were suggesting, what we thought was the best way to do it was if the ballot opened at 6.30 in the morning, then the people could come into work if they wanted to a little bit early, come in at 6.30 or soon after, attend the electoral office and get their name ticked off the roll, cast their vote and then get to work. If they wanted to cast the vote during a break during the day, they could do that as well obviously. At 7 o'clock the night shift would finish work and people - it would be a straightforward exercise for people then to, before they exit the site, to then attend to the voting process, the electoral office, to cast a vote. There's about - I would say there's about 12 to 15 people that are on the night shift so it wouldn't be that it was going to be chock-a-block, you know, everyone is at the polling booth, so to speak. It could be done quite effectively and properly and people could cast their vote and be off the site. As I said, on the day shift there would be, my estimate, you know, I could be a little bit out, but it would be able 20 to 25 people that are on the day shift so they could either cast their vote before 7 o'clock or during the day, during their lunch break or some other break. Then if we had a situation with the ballot closing, as were suggesting or seeking, at 3.30, and the afternoon shift is due to start at 3 o'clock, again the same principle as being suggested for the day shift, the afternoon shift people could come in early before three, come in at 2.30, cast their vote and get back to work. If they felt particularly diligent and they wanted to come in, you know, at dinnertime or during the day, they could do that no worries at all. If people that were on the night shift and they're people that live locally, if they want to go home and have a bit of breakfast, then they could come in during the day and do it. So we feel that that sort of close proximity to work and the voting process and that timeframe of 6.30 in the morning through until 3.30 in the afternoon would ensure every opportunity for anyone to vote and be carried out quite effectively and efficiently and would get the whole thing done as promptly as possible.

PN133

Thank you, Mr King. That finishes the examination-in-chief, Commissioner.

**** DAMIAN PATRICK KING XN MR TERZIC
PN134

THE COMMISSIONER: Thanks, Mr Terzic. Yes, Mr Pill.

<CROSS-EXAMINATION BY MR PILL [11.02AM]

PN135

MR PILL: Mr King, you've been the leading negotiator in the discussions from the union's side?---That's probably fair to say. We've had three or four shop stewards as well involved in all the discussions as well.

PN136

Am I correct from the evidence that you've given - if I can ask you to focus on the period from 8 April. Since 8 April it's correct, if I understand your evidence that there's been one meeting between yourself and the company. Is that correct?
---That is correct.

PN137

That's the one on 21 April?---That's correct.

PN138

Are you aware that minutes were taken at the EBA negotiations?---I'm aware of - I'm aware that the company takes minutes.

PN139

Those minutes are made available for all the people who are in the negotiations?
---Well, no, I don't think that's correct. I think they're made available to all the employees. I believe they're probably made available to all the shop stewards. On one occasion the minutes were sent to me. I've - the view that we have expressed as the union in the negotiations is, if the company wants to produce minutes, that's fine. We're not saying that they're our record of the negotiations but we said if they want to produce minutes and give us a copy, that's obviously their prerogative if they wish to do that.

PN140

Have you seen the minutes of the meeting of 21 April?---I can't be certain, to be honest with you. I can't be certain.

PN141

I'll leave it for the moment. Apart from that meeting, as I understand your evidence and your document that's been tendered, on 12 April you sent a proposal to the company?---Yes.

PN142

That's attachment 6.---That's correct.

PN143

As I understand your evidence, that document reflects what the union was seeking, at least at that time, to include in an agreement that was to be registered under the Workplace Relations Act?---No, that's not a fair representation of what we're seeking. That draft really represents the issue of how do we develop a Work Choice compliant agreement. It's a question of establishing what's legitimate, what's - what are prohibited content and how we manage that. I believe I quite clearly made the point - I don't know if I say it in my cover note, but I'm sure I've made it clear that - in the discussions that that's about - I think I say - if we just draw you to it, my email, which is attachment 6, talks about:

**** DAMIAN PATRICK KING XXN MR PILL
PN144

We've done some further work on the draft agreement document. Please find attached the copies. As discussed, this is a working document and should not be taken as a statement of the union position on particular matters in agreement negotiations, as we do believe that forwarding this document now assists to address the Work Choice issues and to work through the various issues.

PN145

Okay? So perhaps my language isn't the best but it's definitely not a statement of what we're seeking as an agreement but there are some difficulties, as perhaps everyone's aware, to what is compliant and what's not and that's an attempt to address that and we felt it took us a fair step of the way in that, but there was some issues that I - I know I'd said in the discussions, "Don't take this as a definitive position, but I think this advances us a considerable way in terms of what gets us to be Work Choice compliant."

PN146

Putting aside that issue of Work Choices compliance, the document reflects what the union was asking the company to agree to?---No, it - we've put forward draft claims, draft agreement clauses on accident make up pay as an example, on annual leave and shutdown arrangements which weren't incorporated in that document because there were claims for changes and improvements that we were seeking and I didn't insert those in there. We've also put forward a position in terms of other matters. They're not inserted in there. We believe we've negotiated on those matters but they're not included there and it's definitely the fact we forwarded that draft not to prejudice our position and negotiate on those matters.

PN147

With the addition of those other matters - that document attachment 6, plus those other matters was a substantive proposal that was being put by the union to be discussed?---Yes, yes. I think that's fair. I think that's a fair representation.

PN148

You would agree that the company had also proposed and had tabled a fairly extensive document representing the company's position in the enterprise bargaining negotiations?---They did provide an extensive document, yes.

PN149

In the meeting of 21 April 2006, it was agreed, wasn't it, that there were a number of matters in those two documents that the parties had to go away and consider?
---Yes, look, we said that we would - we're not seeking - we believe that the position that we put in terms of what would - I think there were issues - in terms of Work Choice compliant, there were issues about the incorporation of award conditions, there were matters in terms of disputes procedure that we sort of put the position, but we were still feeling our way, still sort of working our way through it, but we believe we'd done an awful lot of work on it and put a substantial position, but we said, of course, the company has put a position, you know, I'm obviously attending union briefings and picking up information around the traps in terms of what makes things Work Choice compliant so we continue to keep an open mind and try and work things through.

**** DAMIAN PATRICK KING XXN MR PILL
PN150

To answer my question, the union and the company agreed that they would go away and consider some of the matters that had been put in those respective documents?---The company said it would consider - further consider - the company had a view on the - on how we write up the incorporation of the award. They said, "You know, we've got our view, we've got to there but, yes, we'll keep thinking about what you've put forward," they said. We had a view about how we incorporate the award and we said, "Well, that's our view, but yes, we'll look at it further and see if there's - if what you're suggesting may have some merit and we may be able to do something," but we didn't walk away from our positions but we're obviously continuing to talk and try and work it through.

PN151

The company hadn't provided you with a response to all the items in your document, had it, at that meeting of 21 April?---When you say - in terms of the draft agreement document we're talking about or?

PN152

In terms of the draft agreement document that you provided on the 12th?---I believe - look, my recollection of it is, the full - I think that draft that we provided has got about 27 pages or something like that. I believe that all the terms of that we covered in some way in the discussion, okay? I'm not saying that there isn't room for further discussion or further working through, but I believe that the full provisions there were subject to discussions in that meeting.

PN153

Mr King, what was your expectation as to what was going to happen at the next meeting?---Expectation was, well, we'll see if we've convinced the company of our view in terms of the - how we develop a Work Choice compliant document, that we would continue to work the issues over.

PN154

Consistent with what you have just said, the company was to take away your document, consider its position and then, as you say, you were hoping at the next meeting you would convince them that they should agree to that?---Well, I was looking for progress. I thought we had done an awful lot of work in producing the document. Look, I know myself and the delegates put hours into the document and we thought it deserved serious consideration.

PN155

In terms of the company's position which had been put, it was agreed that the union and the delegates would take that away and would consider some of the matters that were in that document?---That's right.

PN156

At the conclusion of that meeting, it was agreed that there would be a further meeting?---Yes.

**** DAMIAN PATRICK KING XXN MR PILL
PN157

I put it to you that there wasn't any conclusion on the date for that meeting. You'd asked for a meeting in about a week's time. It was indicated that that couldn't occur and that Mr Laba would get back to you and set a new time for the meeting?
---We discussed when we would have a further meeting. I was keen to meet the company again as soon as possible. We floated the 28th. Boris did indicate that he could well have a problem with that and said that he would get back to me if it was a problem and he got back to me on the 26th, I believe it is, and he said he had a problem and we would need to work out another date.

PN158

It's also the case, isn't it, that you yourself had difficulties with that date due to the relevant state Labor conference?---No. There would be two reasons - I definitely didn't and I can affirm that for one reason, the Labor Party don't let non-members into their conference. So I'm not a member of the Labor Party so definitely there was no problem with the Labor conference and there was no problem at all. My diary was free and ready to go and I was very keen on that, so that's definitely not correct and I almost get a bit upset you suggest I'm in the Labor Party.

PN159

I won't comment on that. The meeting which was set, though, was a meeting for today?---There was a meeting set for today, yes.

PN160

It was agreed at the meeting on the 21st that that meeting had to be a much more substantial meeting than had previously taken place?---Look, we wanted to have some work - continue to work the issues through with the company. I said that the union was prepared to put more time into the negotiations and we were looking for the company to revise its position quite significantly. We felt the company had adopted a position of basically saying no in terms of I'd had a meeting on the 7th, a meeting on the 19th. There were - and the company had effectively said no to all our claims, offered nothing in terms of money. We'd produced a draft agreement document that was quite extensive and the company is really saying, "Well, this is our position, you cop it." That was effectively the line that was being put forward, very ..... and that's the way we want to negotiate. But that was effectively the line that was being put. The company had plenty of time on the 19th to really look at its position, or prior to the 19th and it chose not to do that. We want to continue to talk to the company but the suggestion which I think is in your question that somehow there's been some time problem in terms of working the issues through, I don't accept that.

PN161

Don't worry about the suggestions underneath my questions, Mr King. The question which I put to you was, it was agreed that the meeting that would occur today needed to be a longer and more substantive meeting?---I said I felt that we'd done an awful lot of work and that the company hadn't come back on the 19th in the way it should have but I said if it would assist the company in terms of starting the meeting at 11 o'clock rather than 1 o'clock, I was more than happy to do that for the meeting that was set down for today.

**** DAMIAN PATRICK KING XXN MR PILL
PN162

When was the meeting set down for today?---Today at 11 o'clock.

PN163

When does the meeting usually finish?---It would usually finish before 3 o'clock so we can report back to our members.

PN164

A meeting from 11 till three is a long meeting than had previously had taken place?---That's definitely the case.

PN165

THE COMMISSIONER: I interrupt you Mr Pill, to ask Mr King this question.

PN166

What's the significance of 19 April? Why have you mentioned the 19th? Does that feature in the chronology?---It does feature in the chronology, yes, but - well, it doesn't really, does it?

PN167

I want to give it the weight it deserves?---I've got the 21st there. I actually assumed it was the 21st meeting, Commissioner.

PN168

But is there something, Mr King, because I don't see the significance of the 19th?

PN169

MR PILL: With respect to the witness, I understood him to have been intending to refer to the 21st being the meeting - - -

PN170

THE COMMISSIONER: Very well, yes. That's all I intended to refer to. Sorry about that.

PN171

MR PILL: If we go back to what's happened since 8 April, and I'm looking at your document and I'm summarising and there are other matters of fine detail, but there is a proposal that is put by the union on 12 April 2006 in the form of that document. Do you agree with that?---That's a working document we put forward that's got an awful lot of work in it, yes.

PN172

One meeting on 21 April 2006 and at the conclusion of that meeting, there's another meeting that is to occur. Do you agree with that?---Without trying to sort of talk about my history too much, whenever you haven't got an agreement in enterprise bargaining, in the last 16 years since I've been doing them, if you haven't got an agreement the last issue at every meeting is, "When are we going to meet next?" and that's what we dealt with on the 21st as the last matter.

PN173

So you agree?---Yes, of course. If we haven't got an agreement we need to continue - we need to talk.

**** DAMIAN PATRICK KING XXN MR PILL
PN174

Since then there's been an exchange of emails as you've detailed at points 8 through 10?---That's correct.

PN175

And an agreement that there needs to be a longer meeting, a more substantive meeting, which was scheduled for today?---I think to put it correctly, I felt that the union was extremely disappointed with the meeting on the - that occurred on the 21st, okay? Effectively, the company came back with a stonewall position. That was the company position, okay? It chose to - didn't move anywhere. It said, "This is our offer," and it said to our members, "Until you accept our agenda for an agreement there will be no wage increase." That's what they said at that meeting, "And we're not prepared to move on any of your improvements in terms of working conditions" - fairly modest, I think really, but they weren't prepared to move - "and we want you to effectively give up your rostered days off. We want you to cop only two single days a year," rather than the standard which had been claimed for three and for ..... statutory declaration, they wanted the members to accept the company right to introduce six and seven day rosters and 12 hour shifts. That's what they stood at the negotiating table. That was the substantial position and they said, "You cop that." I don't actually believe that time is the problem. They came and said, "That's our position. We've got a draft agreement document in full, you take that if you want a pay rise." That's - so substantial negotiations had occurred but we want to try and reach an agreement so yes, we're more than happy to meet two hours earlier, but to suggest that there's just some timing issue that needs - is needed to assist the parties to work through it would be totally misleading and wrong.

PN176

Mr King, I put it to you that during that meeting you said words to the effect that, "We need to think about where we're going. We're trying to make the existing agreement workplace complaint. I think we need to have another meeting in a week's time and really find out where we are. It needs to be for longer than two hours and at the end of that meeting we will meet the members and let them know where we are. There's also the question of what we're doing with prohibited matters. I think we need to talk about this separate from the EA"?---No. Look, I - that sounds like a take from the company minutes. I indicated - there are some elements of that statement that have got substance. There are other elements that haven't got substance. I said to the company at the very start of the negotiations that these minutes should not be taken to be something that the union accepts or be any way bound by. My experience as an official is that company minutes represent the company position and the company's slant and I don't believe that that is a fair representation, the statement you just made.

**** DAMIAN PATRICK KING XXN MR PILL
PN177

In what way is it unfair?---Well, what I said was, of course we're prepared to meet more and to work it through but the essence of the position I put was, "You guys are offering our members nothing. You're saying that you need to have a major cut in your employment conditions and you're basically saying you - 'There will be no improvements in your conditions.'" That was a thought through and informed position, okay? We had had hours of discussion in terms of putting an alternative approach. There was no want of negotiation time or process needed in terms of why the company had adopted the position it had. It was the company's position. I indicated to the company that I thought they should think seriously about that position and that we were soon reaching a stage where the members would consider some other strategy to supplement our approach to get what we considered a satisfactory agreement. The company was put on notice at that meeting that I believed their approach and position was unacceptable and they should revise it.

PN178

You would agree that there were two substantive documents, one from the company and one from the union?---In terms of a draft agreement document. In terms of a draft agreement document. That's not to say that the draft agreement document represented the company position in terms of the attacks it wanted to make on employment conditions and it's not to say that it represented the position in terms of our claims for improvements.

PN179

You'll recall that Mr Laba talked about the fact that there were two documents and that you needed to get the documents into one to progress the negotiations?
---There was definitely some work to do on that front. There's no doubt about that.

PN180

THE COMMISSIONER: Mr Pill, I'm going to adjourn for a short while for people to take some quick refreshment so we'll come back in 10 minutes or so.

PN181

I should say, Mr King, during the adjournment you can speak with people but don't - it's much better indeed that you not speak about the evidence you're giving in this case and you might be asked about that. I'll now adjourn.

<SHORT ADJOURNMENT [11.20AM]
<RESUMED [2.09PM]

PN182

THE COMMISSIONER: Mr King, your affirmation continues. Do you understand that?---Yes, Commissioner.

**** DAMIAN PATRICK KING XXN MR PILL
PN183

Yes, Mr Pill.

PN184

MR PILL: Mr King, can I ask you to turn to page 2 of your document marked AMWU2?---Yes.

PN185

Page 3 of the document, Commissioner.

PN186

My questions go to what happened after the meeting of 21 April. As I understand it from reading this ..... from your evidence that in terms of interaction with the company there was a telephone call on 26 April?---Yes.

PN187

Then also on that day you emailed a revised proposal on the dispute resolution procedure to Mr Laba?---Yes.

PN188

Have you had a response to that proposal?---From Boris?

PN189

From Boris?---No, I haven't had a response to that as yet.

PN190

Had you ever had a response from anyone at the company of that proposal?---No, no. Look, I think - I'm not quite sure whether I had a phone call with Boris before or after I emailed it to Boris but I did tell him it was either just been sent or was just about to be on the way. I indicated to him the variations I'd made to the previous procedure and I said there was one aspect to it that I wanted to do a bit more research on before I confirmed the position. But I didn't have any discussion after he'd had the opportunity to read it. I know that.

PN191

The company hasn't responded yet to what you put?---No, not in terms of that particular aspect but we had a lot of discussion on the disputes procedure.

PN192

You gave evidence before about union membership - - -

PN193

THE COMMISSIONER: Just before you go on, Mr Pill.

PN194

I'm sorry Mr King, prior to the luncheon break I would have been able to deal with these dates a little more effectively than I am at the moment. You've indicated, is this right, that you've not had a response from the company after
21 April to the revised position that you sent to the company and I just want to make sure I understand. Are you there commenting on the fact that on the 26th you emailed a revised proposal to Amcor?---Yes.

**** DAMIAN PATRICK KING XXN MR PILL
PN195

Is it that proposal that you just averred to Mr Pill you had not had a response?
---That's correct, Commissioner.

PN196

Thank you?---That's appendix - attachment 8 to the documentation?

PN197

MR PILL: In light of the Commissioner's question, after the meeting of 21 April have you had a response from the company on any of the matters that were in the negotiations?---I haven't had any further comment or feedback from the company in terms of any matter. I think that's fair. I think the last response I received or comment in terms of their position was the detailed position they put on the 21st.

PN198

Aside from what you've referred to there at point 11, what response has the union provided to the company since the meeting of 21 April?---Look, I was keen to meet the company on the 28th to provide them with some further feedback and go through some issues. To be fair to Boris he indicated when that date was tentatively set that he may have a problem.

PN199

Mr King, if you answer my questions we'll go much more quickly?---Okay.

PN200

My question is, what response, other than what you describe at paragraph 11
there - - -?---I haven't had any - - -

PN201

- - - has been provided - - -?---I haven't had any information from the company that they've got a different position than they'd put either on the 21st or prior to the 21st.

PN202

Do I take it from that there is no other response?---They haven't put anything different to what they put on the 21st or prior to the 21st to me.

PN203

Sorry, I maybe not being clear. My question goes to what response the union has provided to the company and my question is, aside from what is in paragraph 11, what response has the union provided to the company in relation to the matters that are the subject of enterprise bargaining?---It's what in point 9 concerning the disputes procedure and what's in point 11 concerning the smoko, tea break matter. That's information that I've provided after the 21st.

PN204

That's it?---That's the information that I've provided. That's - those two areas, that's it.

**** DAMIAN PATRICK KING XXN MR PILL
PN205

That's it. Thank you. In terms of union membership - - -

PN206

THE COMMISSIONER: Before you go on, Mr Pill. What do you think it means, I wonder? The evidence, as I understand it is they're the two communiqués that have gone from the union organiser, official, industrial officer to the company but the earlier thrust of your questions was, what's come back.

PN207

I'm going to ask you, Mr King, I understand that Boris couldn't meet on the 28th, you understand that, you had sent your revised package or your altered material in 26 April email and you sent the smoko clarification letter of 1 May?---Yes.

PN208

From the 26th, have you had any response from the company?---No, I haven't had any response from the company from the 26th or from 1 May communications, Commissioner.

PN209

MR PILL: Perhaps just following on from that, what you sent on the 26th, that appears in attachment 8. Is that correct?---That's right.

PN210

That is a disputes resolution procedure. Is that correct?---That's right.

PN211

Since the 21st the union hasn't put a position on matters other than the dispute resolution procedure and the smoko, tea break arrangement. It's not the case that you've gone forward with a new complete proposal about - - -?---No, they're the two matters that we communicated on, that I can link up to the company.

PN212

In terms of union membership at the site, does your union represent all of the employees who are proposed to be covered by this agreement?---There is, I think, two electricians, I think on site. I'm not certain of their full membership status but they're not covered by us, I can say that, the two electricians and there would - I think there could be one person or two people, I'm not absolutely certain, but it's a bare number that aren't in the union amongst permanent employees and they would probably be a few casuals around that aren't in the union, but I couldn't give you precise numbers but it would be a very limited amount, but I'm not saying we cover everyone that would be within our traditional scope of coverage.

PN213

Of those that you don't cover, there's a small number that are not union members and there's a small number who may or may not be members of the ETU, CEPU?
---Yes. There's two that may or may not be in the ETU and look, there would be - my perception of it is that there would be a couple that are within our coverage that aren't members. I can't speak with total authority but that's always been the thought that it's in the back of my head. I've never actually precisely researched it.

**** DAMIAN PATRICK KING XXN MR PILL
PN214

You don't think that you've got 100 per cent coverage - - -?---My evidence isn't we've got 100 per cent, my evidence is that we've got a very high proportion but my evidence isn't 100 per cent.

PN215

Yes, thank you. One moment, Mr King. I have no further questions, Commissioner.

PN216

THE COMMISSIONER: Thanks, Mr Pill. Yes, Mr Terzic.

PN217

MR TERZIC: No re-examination.

PN218

THE COMMISSIONER: Thanks, Mr King, for your evidence, you can sit down.

<THE WITNESS WITHDREW [2.23PM]

PN219

MR TERZIC: By agreement with Mr Pill he will now call his only witness to give evidence.

PN220

THE COMMISSIONER: Thanks, Mr Terzic. Yes, Mr Pill.

PN221

MR PILL: Perhaps before I do that I can expand just so the Commission knows where we're headed. We had a discussion, my friend and I. What we propose, subject to the views of the Commission, is for me to call Mr Laba, for him to be examined and cross-examined appropriately. We would then address you, Commissioner, on the issue of whether an order should be made at all, whether the order should involve a ballot that is a postal ballot or an attendance ballot. It is then proposed that some information be provided by a representative of the Australian Electoral Commission who I understand have a preference to do that in confidence, subject to the views of the Commission.

PN222

THE COMMISSIONER: Yes, I understand that.

PN223

MR PILL: My friend and I believe that's a logical break, and then following that information to the extent it's necessary, my friend and I would address you on some of the, what might be called the final logistical points, should it be necessary, about ballots. I call Mr Laba.

PN224

THE COMMISSIONER: Mr Pill, there are some contingent elements of that summary, aren't there? There are some things that you will be contending, not only contending against, but you'll be very much hoping won't be arrived at because something will have gone your way in a preliminary sense. Is that right?

PN225

MR PILL: If the Commission was inclined, after it hears submissions from my friend and I, to adjourn to determine those threshold issues, we would certainly have no objection to that and if the Commission accepts my submission regarding whether there is a valid application to dispose of the matter in its entirety.

PN226

THE COMMISSIONER: Of course, I haven't heard the submission. I'm conscious of the injunction for the Commission to act so very speedily in these things and it requires to be constantly borne in mind and I try to bear it in mind. In the same way as I've understood the way you've put that contingent package of considerations which you put neutrally, having had a discussion with Mr Terzic, notwithstanding the position that you favour, I'm conscious that there may be some others, but there may be a requirement for notice to have been given to employees which includes detail of the industrial action. There may be other aspects that will be in sharp focus after I've heard your argument. I'm also conscious of the time.

PN227

Whether we get through this today, I don't know, and whether I'll give either a decision or a series of decisions as we go along - I think perhaps that second course of events, if I've understood you properly, might find favour with the advocates, my question is, I'm interested to know at 20 past two, rather than at a quarter past four whether there is a requirement which should in the same contingent way, not presupposing what the Commission's view might be, issue new or amended material or advice to the employees sought to be covered by or to be involved in the ballot order, which there may be other points, as I've said, but which quite precisely identifies, using the longer term of words, the industrial action. If we come to that late in the piece and the efficacy of posting a revised notice isn't available and retards the hearing of the case, that would be regrettable.

PN228

MR PILL: I understand the Commission's point. Can I suggest that I'm not anticipating Mr Laba's evidence will take very long. It really is a question of how long cross-examination may be. Essentially it can be played by ear, Commissioner, in a sense that, depending upon when that finishes I think I can give you an accurate estimate of how long I would be in submissions addressing these issues of valid application or not and whether you should grant an order. If that would see us at the end of the day, then we may wish to interpose an issue of whether there's further notification to the employees and I'm happy to address the Commission on what has been done to date to comply with the orders.

PN229

THE COMMISSIONER: Yes, I'm sure. A point, amongst others, is this, that may be a live issue that there's been an incorrect description or misdescription of industrial action, I would prefer to have that remedied earlier on rather than hear about it later in the piece. I think it is important to take, as far as I can in this exercise, a practical approach. I wouldn't want it to be said later on, well, that requires a person to be given a reasonable opportunity to consider, having regard to the newly defined industrial action, whether they wish to be heard and so on, and that the Commission has to give another date for that to occur.

PN230

MR PILL: Yes, I understand.

PN231

THE COMMISSIONER: Right. Off you go, Mr Pill.

PN232

MR PILL: If I can call Mr Laba.

<BORIS LABA, SWORN [2.23PM]
<EXAMINATION-IN-CHIEF BY MR PILL [2.24AM]

PN233

MR PILL: Can you restate your name and occupation and address for the Commission, please?---My name is Boris Laba. I'm HR manager with Amcor. I work out of 971 Burke Road, Camberwell.

PN234

Have you been involved in the negotiations for the new EBA for the Kyabram site?---Yes, I have.

PN235

I understand you have a document with you, can I ask you to identify that document?---The document is headed Amcor Food Cans EBA Amcor/Employee Discussions and it's the meeting minutes of 21 April 2006.

PN236

Have you had the opportunity to read that document recently?---Yes, I have.

PN237

Were you at the meeting that the document describes?---Yes, I was.

PN238

In your view is it an accurate summary of the meeting?---Yes.

PN239

I seek to tender that document.

EXHIBIT #AMCOR1 MINUTES OF MEETING 21/04/2006

PN240

MR PILL: Mr Laba, can you summarise for the Commission what the overall position of the company was in that meeting?---Well, the company had organised to come back and comment on the documents that we'd received from Damian. We also came to the meeting to discuss, obviously, the elements of our company requirements. We were concerned, I think, overly in that meeting regarding a number of propositions, particularly the shutdowns clause that had been - annual leave and shutdowns clause that had been tabled I think the meeting prior. We went through and talked about the incorporation of the award, we were looking at Damian's agreement, the one the AMWU had put to us and emailed to me, I think, prior and just went through that. Largely, there was a lot of focus on why - I guess, why we had the positions that we both had and we spent some more time talking specifics about a number of other clauses that were brought up. I guess the overall tone of the meeting was one that was suggesting that we were taking time and that wasn't correct, unnecessarily. We were trying to ensure that people understood that we needed to satisfy all elements of that agreement and given the overlay of Work Choices that there was a number of things that we had to make sure that we complied with and as we progressively went through our negotiation we needed to make sure that everything was documented properly. We ended up with the position where we were taking away a number of documents and concerns that Damian and some of the other people, employee representatives had put to us and equally Damian was taking away a number of documents that I'd prepared and also considerations on the response to some of the claims. And that, sorry, just to finish off, that was going to be covered off at - you know, we would come back for the next meeting, discuss those and equally, if there were things that were available during - between meetings, we would pass them on to each other.

**** BORIS LABA XN MR PILL
PN241

Mr King has given evidence - I'm paraphrasing - given evidence to the effect that at the meeting the meeting was not left on the basis that the parties were going to take things away and provide subsequent responses. Do you agree with that?
---No, I can't agree with that. Just the mere fact that we had emails or one email from Damian - - -

PN242

THE COMMISSIONER: I'm having some trouble hearing you, Mr Laba. Could you speak up?---No, well, I can't agree with that. Just the mere fact that Damian emailed me a document meant that we were going to keep continuing with things as were going along and we would come back and further our conversations.

PN243

MR PILL: Mr King also gave evidence that in terms of the next meeting - I think I'm characterising his evidence fairly, that if there wasn't any agreement that that would be a longer meeting but he was prepared to start a couple of hours earlier. What's your recollection of what was agreed to occur next?---It was - earlier on in the meeting, it was probably within 10 or 15 minutes of starting the meeting, and Damian, to be honest, was putting something forward that I myself was going to put forward in terms of we both felt that there was a lot - I felt there was a lot of work to be done and he pretty much put to me that we needed to get into some of this and he proposed that next time we meet we would meet for longer and I concurred and I think - well, that's reflected in the minutes, but that certainly was both our wants.

PN244

But in your view had the company or had the company not provided a substantive responsive to the union's proposal?---I was prepared to actually going through to a greater level of detail to the union's documents but the nature of the way the discussions were going he actually didn’t get in as much as I would have wanted it. But, yes, we certainly went through a whole range of items including the union's claim and also touched on a number of ours and but, you know, not the way, not in the level of detail that I would have wanted to but, yes, from the time we had we certainly touched on a number of items, yes.

PN245

You've obviously been to the Kyabram site, that you're familiar with the layout of the site?---Pretty much.

PN246

And you're familiar with the layout of the area where the people who are proposed to be subject to this agreement work?---Mm.

PN247

Do they work in the same area?---It's largely an open area where you've got a bank of machines and so everyone is housed in that area.

**** BORIS LABA XN MR PILL
PN248

If there was to be a ballot conducted at the site is there anywhere at the site where if people were attending a ballot box they could do so without being seen by the employees?---Well look, there are a number of officers in that area but there's also a bank of offices at the front and there's also the warehouse on the side so other than those everything else is relative open.

PN249

When you talk about the offices at the front, if we stuck a ballot box in the front office and I'm an employee who works in the area, how do I get from where I'm working to the office?---You'd have to walk one to 200 metres, 300 metres, to get to that area.

PN250

Would I be visible to the other employees and it would clear where I was going?
---Well, yes, yes.

PN251

To the best of your knowledge Mr Laba are all the people, the people who are the subject of this agreement, union members?---My understanding is there may be a small number that are not but I haven’t looked into that myself.

PN252

THE COMMISSIONER: I'm sorry, Mr Laba, but you said a small number were not and then what did you say?---But I haven't looked into that myself.

PN253

You haven’t looked into it, thank you.

PN254

MR PILL: Are you aware, Mr Laba, whether there are currently any employees who are absent from the workplace for reasons of leave?---Next week on my understanding is that there will be one person on annual leave for part of that week and another on a rostered days off and the following week there'd be, I think we have three on a rostered day and another person for the four weeks' leave.

PN255

THE COMMISSIONER: So the following week its three, Mr Laba?---Three on rostered days and one on a four weeks annual leave and there's a person who comes in partial hours because he's on workers compensation and will return to work.

PN256

MR PHIL: When you say partial hours, do you know what hours he does?---I'm not sure of the hours but I think he is three days a week.

PN257

Three days a week. I have no further questions.

**** BORIS LABA XN MR PILL
PN258

THE COMMISSIONER: Yes, thank you, Mr Phil. Yes, Mr Terzic?

<CROSS-EXAMINATION BY MR TERZIC [2.33PM]

PN259

MR TERZIC: Firstly, Mr Laba, you just gave an answer in respect to a question of the attendance of employees at work and you referred to three RDOs, can you tell the Commission what day those RDOs occur?---I'm not sure of it, sorry, I don’t know what day it is specifically, I'm just aware that there's three people of RDOs next - sorry the week following next.

PN260

THE COMMISSIONER: Mr Terzic, perhaps we're at cross purposes. I'm just having a bit of trouble hearing I must say, but I thought the evidence was that there were three people who were going to be on RDOs in the following week?

PN261

MR TERZIC: Yes.

PN262

THE COMMISSIONER: Because that question suggested that there were three RDOs in the following week, is that right?

PN263

MR TERZIC: No, in relation to the three persons who'd be on RDOs do you know what day the RDO will fall?---No I don’t.

PN264

Is there a regular day on which RDOs fall, for example is always on Mondays or always on Fridays?---Not normally. There would be times that we would possibly put around public holidays and such but I don’t believe so in this case.

PN265

So an RDO at the plant can be taken on any day of the week?---Yes it can be organised individually.

PN266

But in particular circumstances RDOs can be shifted from one day to another?
---Where there is a requirement there would be a plan put out probably some weeks and months ahead, preset RDOs for the whole site other they're taken individually. Yes, so I think there is about three or four fixed and seven or eight that are floating that people take individual.

PN267

With RDOs if there was to be three employees taking an RDO in a particular week, they typically will take them on the same day or on different days?---I don’t know I'm presuming in this case there's no reason why they'd be the same day.

PN268

So on any one day there might be one employee taking an RDO or two but probably not three, is that your evidence?---Look it could be any variable but I wouldn't think that unless it was a preset day that necessarily there'd be, you know, more than one or two off at the same time.

**** BORIS LABA XXN MR TERZIC
PN269

Thank you. I will leave the RDO issue for the time being. As to enterprise bargaining, you've met with Mr King over the month of April, haven’t you?
---Correct.

PN270

How many times can you recall?---During April twice.

PN271

Twice and how many other - how many telephone communications have you had with Mr King?---I haven’t recorded them but I think once or twice.

PN272

And you've had an exchange of emails?---I've received emails from Damian, yes.

PN273

Yes and any other correspondence that you're aware of?---Not that I believe so.

PN274

Right. Together with Mr King you've gone through a proposed agreement in considerable detail, haven’t you?---Yes, the company's has put up a comprehensive document and so we've gone through it.

PN275

Yes, and you've gone through the various issues in the agreement in some detail, haven’t you?---We've gone through - we've got documents that are rather lengthy and we've gone through documents which to my way of thinking are still not the nut of the detail.

PN276

THE COMMISSIONER: Sorry, Mr Laba, what are they?---The two documents that we've got tabled, our draft enterprise agreement proposal, and the union's draft enterprise agreement proposal. In answering the question in terms of have we gone through the detail of that, we've gone through both but certainly not to the level of detail that I'm accustom to and that I'm comfortable with and I would have thought that there's still quite a considerable amount of work to be done around those.

PN277

MR TERZIC: And as you've raised proposals, Mr King has responded to them directly, has he not?---Well we've had - it's been - that's one of the interesting kind of approaches that we table the document and we started to go through that. We then have had to change course and look at another document. Now we've tried to come to terms with that and then we've had a meeting which really didn’t go into again pulling those documents together. So in looking at how the documents are working we've actually swapped and changed and jumped between the documents which again hasn’t been helpful in getting to the nut of the detail.

**** BORIS LABA XXN MR TERZIC
PN278

Yes, Mr Laba, you've said that there's been some difficulty at times in sticking to an agenda, is that your evidence?---Yes I guess that correct, yes.

PN279

Yes but the question I'm asking you now is that when points have been raised in meetings about agreement proposals, Mr King has responded to those proposals in a considered way, hasn’t he?---In brief but yes. We're talking about, you know, 30 or so items and some we skip over very quickly, some we talk to. I still maintain we haven’t spent enough time so yes, he has but I would say in fairness to Damian we both have, we've both had a whole range of things we're going through and we're not - we're still touching sides on some of them.

PN280

Over the period from the beginning of April until now have you found Mr King amenable to meeting and talking with you?---Well apart from the last meeting, no, I mean, Damian has been approachable. Damian has been fine to work with but I think the last meeting was one were there was certainly a set of - or where there was destruct or otherwise but there was certainly a set of allegations with the company that we'd be laying and that we were doing this intentionally or potentially we didn’t do intentionally, I don’t want to put words in is mouth which I think was - took us off the points we needed to go through so in effect we really didn’t make the most out of that meeting.

PN281

Mr King has provided if not you the company with his mobile phone number, has he not?---Yes.

PN282

He's made it plain that he's available to receive calls from the company on his mobile phone?---I don’t think we've ever made it plain but, you know, I've worked with Damian for a while and I think he can ring and so can I take that as I need an invitation.

PN283

THE COMMISSIONER: I'm sorry, Mr Laba, I didn’t hear that. You've known him for some time and what's happened?---And we've both got each others numbers and it's not a matter of being invited I know that I can call Damian and he call me, yes.

PN284

Thank you.

PN285

MR TERZIC: Now, Mr Laba, do you have human resources responsibilities for other Amcor sites?---Yes I do.

**** BORIS LABA XXN MR TERZIC
PN286

Are you aware of the contents of other agreements with Amcor operations?---Yes I do.

PN287

Are you aware of agreements made between the union known as the AMWU and Amcor at other sites?---Yes I do.

PN288

Are the terms in the agreement that have been proposed by Mr King identical to other agreements that’s have been made at Amcor sites?---We're at a point where things are very early so I think we're we are at Kyabram isn’t where you're going to find the other sites so to actually say that the proposals are comparable is very hard to judge to be honest. Yes there's other agreements going on, there's other dialogue going but I wouldn’t say that we've got or that there's been that level of time but that there's a comparable level of either a draft or anything else to compare with. It's hard to judge.

PN289

Now, Mr Laba, its not the case is it that Mr King has provided you with what looks like a template document and said sign this, this is the deal nothing else, he hasn’t done that at all has he?---Let me think. Again it's very hard to know exactly what we're receiving on the other site given where they're at in their discussions but at the moment I would say no that’s correct.

PN290

Let me ask the question again, I'm talking about at Kyabram, at Kyabram has
Mr King presented to you what appears to be or what’s described as a template or a standardised document and said, this is the deal take it or leave it?---Look I've seen some clauses that are not in other documents, yes, but again its that's early its difficult to tell but I have seen some of the clauses in our other documents, yes.

PN291

Some clauses?---Yes.

PN292

But has Mr King at any stage said to you that his proposals are they to be accepted, take it or leave it without changes?---No I don’t believe that he said that.

PN293

No. That’s all, Commissioner.

PN294

THE COMMISSIONER: Thank you. Yes, Mr Pill?

PN295

MR PILL: Just very briefly, Commissioner.

<RE-EXAMINATION BY MR PILL [2.42PM]

PN296

MR PILL: Mr Laba, you gave evidence that were certain documents, one that were proposed by the company and one that had been proposed by union, and my friend asked you about the responses, has the company provided a complete response to the document that was table by the union and sent to you by email on the 12th?---I don’t - again this go down to the level of detail. It was a very superficial run through. I have not really had the opportunity to go through it in the way that I would normally go through it, not at all, and that's what I had prepared for the previous meeting and I didn’t get the opportunity to do that because of guess of the type of approach that was taken across the table with me.

**** BORIS LABA RXN MR PILL
PN297

When is it intended that the response would be provided?---Next chance I get which would have been today.

PN298

And has a clear response been provided by the union - - -

PN299

THE COMMISSIONER: Just before you go on, Mr Pill, rather are you going to come off that point now?

PN300

MR PILL: A related point that I was coming to that specific point, yes.

PN301

THE COMMISSIONER: My understanding, Mr Laba, is that there was a meeting scheduled today?---Correct.

PN302

Were you going to tender a response today?---Well I was going to sit down and talk to Damian's document, correct, yes.

PN303

I just want to understand this because the way the question was put to you was firstly, the notion was put to you that had the company responded to
12 April 2006 draft, I think the answer was, no it hadn’t and then Mr Pill asked you when had it been you're intention to do that. That's how I recollect his question, words to that effect and you’re answer was you would have done it today?---The next meeting which was today.

PN304

Yes and you would have talked about the issues, is that it?---I would have talked through it in much more detail than we even touched on last time.

PN305

Thank you.

PN306

MR PILL: Has the union provided a completed response to the company's document in your view?---I don’t believe so.

PN307

Do you know when it was intended that that response would be provided?---I don't think that we came to a grounding that that would happen. It was really a matter of we agreed that we needed to take it down to one document. So whenever that would happen we were going to start - sorry, I don't even think it was agreed. It was ….. that we needed to pull these two documents into one but how and when it would happen my view is at the meetings progressed, the next meeting and the one after that and so on until we worked through the whole things.

**** BORIS LABA RXN MR PILL
PN308

No further questions.

PN309

THE COMMISSIONER: Thank you for your evidence, Mr Laba, you can sit down.

<THE WITNESS WITHDREW [2.45PM]

PN310

MR PILL: Sorry, Commissioner. Commissioner, in light of your comments before and the stage that we've reached, what my friend and I have just discussed is perhaps albeit it's out of sequence and obviously on the basis that it's without prejudice to the company's submission which you're still yet hear.

PN311

THE COMMISSIONER: Yes.

PN312

MR PILL: Can we address the issue of the obligation, the Commission's obligation to provide a reasonable opportunity for - or two obligations. To provide notice of the application which is an obligation that appears in section 454 - just stepping you, Commissioner, through the relevant legislative provisions, 454 imposes an obligation in this case on the union to provide certain things. I can indicate that was done in the sense insofar as the application which has not included the draft order and I will come back to that point. Section 457, one of the matters that the Commission needs to be satisfied of is that the applicant has complied with section 454 and then over the page, Commissioner, or over the page in my version, section 458, and this is the crux of in my submission what you need to determine, Commissioner, is that you need to provide an opportunity for the parties to make submissions and that includes any relevant employees.

PN313

THE COMMISSIONER: Yes.

PN314

MR PILL: Can I indicate to the Commission that the initial document was faxed from the Commission on my instructions but unfortunately for whatever reason was not received. I would note that the fax number or the confirmation, the one on the front page unfortunately are different, but I can indicate that it wasn't received. It was received by our office, Commissioner, late yesterday and it was in compliance with your current order put up on noticeboards at the site, on my instructions, at approximately 7.30 pm last night. Now, Commissioner, that includes the application that was filed by the AMWU, if I understood my friend's submission correctly, includes the correct questions that they are seeking to ask.

PN315

THE COMMISSIONER: Yes.

PN316

MR PILL: But the draft order which contains the incorrect question has not been posted on noticeboards on my instructions and indeed not required to be so posted. Where that leads me to, Commissioner - - -

PN317

THE COMMISSIONER: When you say draft order are you referring to the draft order with my name on it that was received I assume by you after I faxed you the material later in the afternoon or the evening?

PN318

MR PILL: Yes, Commissioner. It looked like the Commission with a draft order

PN319

THE COMMISSIONER: Yes.

PN320

MR PILL: And then yes, your name.

PN321

THE COMMISSIONER: Yes.

PN322

MR PILL: And it's in that document, if I understand my friend's submission, that question 8 contains a number of words and I'll come back in submissions in due course to the change but it contains a number of words that are different from those that were in the question that's in the application itself.

PN323

THE COMMISSIONER: My grasp of what you've put is that in your understanding the question to be put which is set out in the draft order is in the incorrect terms, it hasn’t been posted and what has been posted is what you understand to be the question to be put in the correct terms?

PN324

MR PILL: That's correct, Commissioner.

PN325

THE COMMISSIONER: All right. So there's no - and thank you for addressing this, there's no impediment arising from the misdescription of the action or the question sought to be put?

PN326

MR PILL: That's correct, Commissioner.

PN327

THE COMMISSIONER: Yes. All right.

PN328

MR PILL: Given the nature of the submissions that we're talking about in the company's submission it would be inconsistent with the requirements of the Act for you to issue a draft - sorry, to issue a valid order today, apart from any other submissions which I'll make, on the basis that to do so would be inconsistent with the Commission's obligation to provide that reasonable opportunity for any relevant employees to make submissions. The only reason I say that, Commissioner, is that given the document, the matters that respectfully were beyond my client's control was posted at 7.30 last night. There are a number of employees and indeed the vast majority of employees who would not have sighted that document until today.

PN329

THE COMMISSIONER: I understand that submission. It might have even been capable of anticipation but I don’t require you to break your sequence now because I have understood really the gravamen of what you were putting, but the out of sequence was the response in relation to the misdescription which is a dead letter, if I've understood you correctly, and so I understand the point that you're now dealing with but I invite you to go back to deal with it in the sequence of events that you want to.

PN330

MR PILL: Thank you, Commissioner. Well that was the extent of the out of sequence issues that I was going to address.

PN331

THE COMMISSIONER: All right.

PN332

MR PILL: There aren't any particular rules that govern these sorts of matters nevertheless I would submit for my friend to make submissions about if you should grant the order presumably he will make submissions about the preconditions being satisfied and that it should be an attendance ballot and I'll make submissions in response to that and then in my view it's appropriate juncture to break both for the Commission to consider and potentially determine those also but also as an opportunity to hear anything that AEC may wish to say.

PN333

THE COMMISSIONER: Yes, and if I understood as I've almost gagged you on your point then, you were at the second of the points that you were trying to raise, is this right, you'd say the Commission should sit again on Monday to provide the opportunity for an employee who might be minded to make a submission?

PN334

MR PILL: If you are minded to make a submission, yes, Commissioner.

PN335

THE COMMISSIONER: Yes. Each of those is if I've got through the various gates that are necessary doesn't presuppose anything, but if that question is a live question your submission is, is this right, that the Commission should sit on Monday in the event someone wishes to put a submission, an employee wishes to put a submission by virtue of their incapacity in any real sense to have seen and considered their opportunity to make such a submission?

PN336

MR PILL: Yes, Commissioner.

PN337

THE COMMISSIONER: I follow that, thank you. All right, Mr Terzic?
Are you ready to go now with your submissions?

PN338

MR TERZIC: I want to address the later point made by Mr Pill. Commissioner, it would require me to deal with that point to ask a direct question to your office because I have at hand the notice that was posted and it was conceded it was posted albeit late through no fault of the applicant I would contend, but was posted late yesterday evening on the company notice board. If I direct the parties attention to the notice that was faxed through to - - -

PN339

THE COMMISSIONER: I'm not a party Mr Terzic. So do you want to show this to Mr Pill do you?

PN340

MR TERZIC: Well, look the Commission and the parties.

PN341

THE COMMISSIONER: Yes.

PN342

MR TERZIC: Yes, a party to proceedings. The notice concludes with a sentence:

PN343

Any such employee wishing to make a submission should contact the associate to Commissioner Gay

PN344

And then a phone number is given:

PN345

Or attend the Commission on the date specified in order (1) of the orders and directions that accompany this notice

PN346

Having said that, Commissioner, the notice has now been up for most of day shift, it would have been up for most of night shift and an afternoon shift, most of afternoon shift and all of night shift. All of the employees at the plant would have had an opportunity to see that notice. All of the employees at the plant would have had an opportunity to telephone your office to indicate a desire to make submissions. I'm presuming no telephone calls have been received by your office but perhaps your good staff could confirm that and if that be so I would say that that would present no impediment to the application being determined tonight if the Commission is able to do that and at least do so within the 48 hour time frame that is - - -

PN347

THE COMMISSIONER: Two working days after the filing of the application.

PN348

MR TERZIC: Yes, the time frame.

PN349

THE COMMISSIONER: ….. working days?

PN350

MR TERZIC: Yes, Commissioner, so that's my submission on that issue.

PN351

THE COMMISSIONER: What about the afternoon shift, I don’t know that you dealt with that?

PN352

MR TERZIC: Well, the notice would have gone up around 7.30 I think from what Mr Pill has informed the Commission.

PN353

THE COMMISSIONER: Yes.

PN354

MR TERZIC: I presume that by 7.30. The notice would have been on the notice board for three and a half hours while the afternoon shift were working I'm instructed. It would have been there for all of night shift and so far all of day shift and anyone who's seen the notice who had a desire to make some form of submission could have called your office and indicated that and that could have been dealt with some way or other. So in my submission that impediment is spurious and should not impede the speedy resolution of the application.

PN355

THE COMMISSIONER: Yes. It also says:

PN356

Of course or attend the Commission on the date specified.

PN357

MR TERZIC: Well its one or the other, no-one has turned up. The afternoon shift - - -

PN358

THE COMMISSIONER: Yes, but you say there's a reality in the capacity for an afternoon shift person to come to work and see the notice and be upstanding.

PN359

MR TERZIC: Well an afternoon shift employee could have seen the notice within the three and a half hours he or she was there and then made a decision over night and found his or her way to Melbourne by 10 am or any time right up to 3 o'clock today.

PN360

THE COMMISSIONER: Yes. Is that all you want put on this point, Mr Terzic?

PN361

MR TERZIC: I don’t want to attribute - well I think everyone is actually in good faith in a novel proceeding and it is complicated and everything else but I just want to try and absolve the union for any blame in this its not through any tardiness or - - -

PN362

THE COMMISSIONER: But I don’t think this is an exercise where there's any - I haven’t detected any new or semblance of accusation about it. It's a really a question of what's the essence of the requirement that is imposed on the parties but imposed on the Commission by the legislation and has it been complied with. If its been complied with, there's something in this point then it has merit, if there's nothing in it well then it's just sent to a special repository.

PN363

MR TERZIC: Yes, I think that’s where it belongs in my submission.

PN364

THE COMMISSIONER: Yes, all right. Well I'll just see what Mr Pill says about that because we'll chase this rabbit to ground now so, Mr Pill, if you're ready to address me on that point?

PN365

MR PILL: Yes, look I am. Just a couple of minor factual points at least won't be overlooked. We are talking about Kyabram is the first point, we're not talking about Dandenong, we're not talking about an employee jumping in a car and driving up now to the Commission. The second point is day shift, the first time they could possibly have seen this notice is this morning at 7 o'clock. The next submission I would make is that the Commission has rightly identified that unless the - you've been given a fairly truncated timetable by the parliament but that timetable isn’t one day, that timetable is two days, and as you pointed out, Commissioner, two working days and so it is envisaged by the parliament that there is at least a window, albeit a short a one during which the Commission should be applied an opportunity to the relevant parties. Sorry, the parties including the employer and the relevant employees and it would be acknowledged, Commissioner, that the prospect of that occurring may be small.

PN366

Employees usually don’t like running to the Commission but nevertheless there is that prospect and the harm in the context of this current particular application of the matter going over to Monday for the employees being advised again that the matter is listed on Monday is in my respectful submission nil. The final point I'd make, Commissioner is that we're at 3 o'clock, I still have some reasonably significant submissions to make as I speak over my friend, before we even get to the issues, my friend's already alerted to this, about exactly how long before the roll is closed should the ballot open, how long should the ballot be open for. I think even if we are in heated agreement about having a positive discussion about that, we're not, with respect, going to conclude today.

PN367

Listing the matter again on Monday will fulfil a number of purposes one of which will enable the Commission to consider the submissions, one of which would be to enable the Commission to be satisfied that it has satisfied its obligation to provide a reasonable opportunity for employees and the last would be the practicalities. It will provide more time on Monday to talk through whatever our friends from the AEC wish to share with us and with the Commission.

PN368

THE COMMISSIONER: Yes, well, I'm suffering.

PN369

MR PILL: I sympathise, Commissioner, I do. If the Commission pleases those are my submissions but I think they significantly outweigh what appears to be a rush to get this done and dusted.

PN370

THE COMMISSIONER: Thanks, Mr Pill. Do you want to have something - another, you want a final word on this, Mr Terzic, on that point?

PN371

MR TERZIC: The words of the statute say:

PN372

A reasonable opportunity to make submissions

PN373

It's our contention that in all of the circumstances it was they have had a reasonable opportunity, a notice was on the noticeboard, all employees have seen it, a phone number was provided, yes it would be a considerable trip between Kyabram and Melbourne but picking up the phone and making a telephone enquiry to see what was required and how something could be said is I think a reasonable opportunity in the circumstances - - -

PN374

THE COMMISSIONER: Yes, all right Thanks, Mr Terzic. As we go along with these things I'm going to endeavour to give my decision or indicate the position I've reach on these various points progressively rather than keep you all in suspense for some production. I do propose to sit on Monday. I don’t want to proceed in some sort of a Friday night hothouse environment. I am not aware of any prejudice. It's not an attempt to long finger the matter. In fact if I thought I'd usefully get rid of it tonight I would keep you here as I have on many other occasions, late in the night, but I don’t see there is any purpose in that.

PN375

I'm particularly conscious of employee representational provisions and I think that it is - they are important issues. Section 170LK of the amended Act - of the old Act is of a similar sort and I want to give full but not undue emphasis to the opportunity for employees should they wish to, to appear, and that particularly would mean I'm conscious of Kyabram's distance from Melbourne. I think that is a relevant consideration. Some of the employees are likely to have had only a few hours and while it's true that some people are sufficiently confident to ring the associate in the Commission I think also that other employees it's very likely might want to discuss that with their work mates and in a shortish space of time come to a view that a group or representative group might attend.

PN376

There's no general rules about these things but I can see that taking several hours before it could come about and it might not have been possible today so that's one of the reasons that I'll sit on Monday but I don’t want to rush hearing the case in any event and I do want to hear if full effect to the contribution to be made, should it come to that, of the Electoral Commission.

PN377

MR TERZIC: Just a practical point on the Commission's ruling.

PN378

THE COMMISSIONER: Yes.

PN379

MR TERZIC: I don’t mean to challenge it any way.

PN380

THE COMMISSIONER: No. I should also add it's not my intention to sit unduly late tonight.

PN381

MR TERZIC: Yes. Commissioner, I'm instructed that it's likely now that all day shift employees have gone home and if we are to sit again on Monday morning it would to give life and utility to your Commission's ruling they should be notified of Monday's hearing and perhaps the party best placed to deal with that would be the company in my submission and I would seek a direction from the Commission that the company take reasonable measures to inform all of its employees at the Kyabram site of the Commission sitting again on Monday and also giving them the opportunity - informing them of the Act's provisions which should provide for them an opportunity to attend.

PN382

THE COMMISSIONER: Yes and it’s the capacity to attend in any real sense that I'm focusing on but I am aware that going through the dates of the shifts starting, the times of the shift starting times and knock of times. It can be said in a way you did initially that everyone would now have had an opportunity but the afternoon shift and then the night shift would have seen it last night but it’s the decision coming to reflecting and coming to - and having the capacity to actually attend that's the portion that I must say is inclined to me to sit on Monday. Now Mr Pill what do you say about the idea that the company can take reasonable measure to advise that the Commission is sitting on Monday?

PN383

MR PILL: Yes.

PN384

THE COMMISSIONER: And I take it Mr Terzic referring to a telephone ring around?

PN385

MR PILL: Can I just have one moment please, Commissioner.

PN386

THE COMMISSIONER: Yes of course.

PN387

MR PILL: I'm told that in terms of day shift, occurring on day shift unfortunately finished about eight minutes ago - - -

PN388

THE COMMISSIONER: It's just the group I was trying to - - -

PN389

MR PILL: Just missed the boat.

PN390

THE COMMISSIONER: An hour or so ago.

PN391

MR PILL: There's about 20 employees on day shift. What the company would propose, in our view it might need to be the subject of a direction, or what the company would propose is that in respect of night and afternoon shifts bearing in mind that afternoon is there. It has just commenced. That there would be something put on the noticeboard and that maybe similar in some ways to what the Commission has already provided but obviously highlighting that the matter is listed again on Monday at whatever time the Commission determines.

PN392

THE COMMISSIONER: Yes.

PN393

MR PILL: And in respect of the 20 or so people on day shift, I'm instructed the company is prepared to undertake to the Commission to take reasonable steps in the form of ringing on the numbers that the company has to advise them to the effect that there is a secret ballot application that's bee made by the AMWU, that they are entitled to make representations to the Commission if they wish to do so and that the matter has been listed at a particular time, and if anyone decided to deal with that, Commissioner, we can simply start bringing some of those things into train.

PN394

THE COMMISSIONER: Yes. It would be sufficient for my purposes if you pick up those last three or four lines from the notice which simply is that they're advised of the fact that the application will be heard on Monday, coming on again and been heard today. They're entitled to make submissions or express a view and they can do that on either attending or contacting my associate. There might be some alternative means. Some of them may wish to make a facsimile communication. Yes, Mr Terzic?

PN395

MR TERZIC: At what time?

PN396

THE COMMISSIONER: 10 o'clock we will sit on Monday. And also Mr Pill, we're really doing this in a ….. sort of way now. My associate's taken the opportunity to tell me she's spoken with Mr Farrell and he's not available on Monday so there is some force in I think what has been jointly thought and that is that at some stage this afternoon the opportunity should be taken to draw on the advice from the particular expertise of the Commission.

PN397

MR PILL: Can I ask how the long the Commission is proposing to sit this afternoon?

PN398

THE COMMISSIONER: Well, I think certainly to 4.15.

PN399

MR TERZIC: Commissioner I was on the verge of launching into a submission on the requirements of section 461 which is genuinely trying to reach agreement, pattern bargaining, et cetera. Before I do that perhaps it might be - - -

PN400

THE COMMISSIONER: You're wrecking my appetite, Mr Terzic.

PN401

MR TERZIC: Yes, it might be appropriate that we go off the record and speak to the AEC officers who've sat here very patiently.

PN402

THE COMMISSIONER: Yes, all right. Well thank your Mr Terzic. Mr Pill, in relation to that telephone little round up, that is - I don’t make a direction because I don’t like making unnecessary directions even though the Act are quite ….. these days but I don’t make a direction. I have every confidence that the company will have a ring around of those people and inform them of those circumstances and keep a note of those who were contacted and those who weren’t.

PN403

MR PILL: Yes. Could I seek the Commission's indulgence to stand that down for five minutes so that I can tweak the final words of those paragraphs provided that someone from the company …..

PN404

THE COMMISSIONER: Yes and experience suggests it might be a sound idea to just have Mr Terzic - of course you're responding positively to a request of
Mr Terzic so I'm sure he'll have a positive contribution if he has one to make when you show your slip of paper. All right, we will adjourn now for a short time.

<SHORT ADJOURNMENT [3.11PM]
<RESUMED [3.25PM]

PN405

THE COMMISSIONER: Well gentlemen my understanding is that its going to be useful to deal with the two - confer with Mr Farrell, is that what was put earlier? Do you agree with that Pill?

PN406

MR PILL: All right.

PN407

THE COMMISSIONER: Mr Terzic?

PN408

MR TERZIC: Yes.

PN409

THE COMMISSIONER: All right. We'll take that course. We'll go off the record to have a conference.

<SHORT ADJOURNMENT [3.26PM]
<RESUMED [3.55PM]

PN410

THE COMMISSIONER: Well, it’s the case that we've had the conference with Mr Farrell and Mr Glanville and it's been very helpful indeed to receive the information from the Electoral Commission which includes some materials which have set out minimum timetables and many practical elements of the task that falls to the Electoral Commission have been capable of being discussed and I think certainly the parties and the Commission are grateful for the indications that have been given. Yes, Mr Terzic?

PN411

MR TERZIC: Commissioner, I'd like to now address an issue that I apprehend might be contentious and it is indeed a prerequisite to the Commission granting the ballot order as applied for and that issue arises out of the operation of section 461 of the Act where at subsection 1:

PN412

The Commission must be satisfied that the applicant is both doing things and not doing things before the Commission can then exercise its power to grant the order.

PN413

What the applicant must not be doing is set out at paragraph 1(a) of the section and that is:

PN414

During the bargaining period the applicant genuinely tried to reach agreement with the employer of the relevant employees.

PN415

And secondly at paragraph (b):

PN416

The applicant is genuinely trying to reach agreement with the employer.

PN417

And what the applicant must not be doing it set out in paragraph (c) and that is:

PN418

The applicant must not be engaged in pattern bargaining.

PN419

Turning firstly to the first two paragraphs the requirements set out there appear to both capture a particular requirement and that is genuinely try to reach agreement. Firstly its expressed in the past tense in paragraph (a) and then it appears to be expressed in what appears to me to be the present continuance tense in the paragraph (b). So in effect it means that from the start of the bargaining period right through to the presence the applicant must be genuinely trying to reach agreement and moreover it could be construed that there would be some evidence and we say there is to be sure that the applicant continues to try and will continue to try to reach agreement with the employer.

PN420

So on our case less there be any doubt we are submitting that it is the case with the applicant that it has tried, is trying and continue and will be trying into the future to reach agreement.

PN421

THE COMMISSIONER: You've had three attempts. You voluntarily - - -

PN422

MR TERZIC: Yes, Commissioner, just lest there be any doubt.

PN423

THE COMMISSIONER: Yes.

PN424

MR TERZIC: As to whether (b) can be construed as going beyond a particular moment, a time, and that would be the time when the order is made. Mr King has given evidence, that goes to that and I will deal with that a little bit later. So the operative words there have been given some degree of judicial consideration and at this juncture I will refer to an authority which is a decision of a Full Bench of the Commission in North Coast News. Media, Entertainment and Art Alliance North Coast News Pty Ltd and others. It was a decision of the Full Bench of the Commission handed down on 11 March 2003 and the print number is PR928033.

PN425

THE COMMISSIONER: 928, I'm sorry?

PN426

MR TERZIC: 033.

PN427

THE COMMISSIONER: Thank you.

PN428

MR TERZIC: It is a lengthy decision and the passage is very short so I've just prepared an extract of the relevant passage from the authority if that’s of assistance.

PN429

THE COMMISSIONER: Thank you, Mr King.

PN430

MR TERZIC: Mr King will substitute. Turn to paragraph 44 - 43, I'm sorry and the relevant words are not new to the Workplace Relations Act. They did exist I think well before even the 96 amendments but at paragraph 43 the Bench stated that starting at the end of the first sentence:

PN431

The operation of each provision is conditioned upon a test of whether the negotiating party is genuinely trying, or did not genuinely try, to reach agreement with the other negotiating party or parties. If the relevant negotiating party's conduct does not satisfy that test, (we shall label it the genuinely try test), the effect may be that industrial action is not protected.

PN432

Now, that's a different set of circumstances but for relevant purposes I'm drawing the Commission's attention now to how the - what's referred to there the genuinely try test has bee construed.

PN433

THE COMMISSIONER: Where were you reading from there, Mr Terzic?

PN434

MR TERZIC: Paragraph 43 but I omitted the first sentence.

PN435

THE COMMISSIONER: Is that where you say that they call it the genuinely trying test?

PN436

MR TERZIC: That was an abbreviation so that the Bench wouldn’t have to in delivery its reasons refer at length.

PN437

THE COMMISSIONER: That phase doesn’t appear at my paragraph 43 but I see I'm looking at a quoted 43 on page 13, you're on page 12 aren't you?

PN438

MR TERZIC: Yes. Yes, you've got the italicised version.

PN439

THE COMMISSIONER: Yes.

PN440

MR TERZIC: Yes.

PN441

THE COMMISSIONER: I'm on 43 now. Yes.

PN442

MR TERZIC: So that's by way of preface to get into the more salient passage and at paragraph 44 the Bench said:

PN443

In the construction of the genuinely try test the ordinary meaning of the words used has been readily adopted in judicial and Commission decisions. Generally, those decisions all accept that the application of the test involves essentially a question of fact and degree.

PN444

I end the quote there but I do point out that there's a foot note and I'm sure if all of the foot note is in the extract and so I apologise but among the cases cited there are a decision of Federal Court of Australia, Australian Airline Flight Engineers Association v Ansett handed down in 2000 and the AMIEU v O'Connor a decision of Marshall J of the Federal Court and I won't through at any length. Commissioner, the decision then that I'm now citing from did go to talk about the AIG and AFMEPKIU case and again on paragraph 45 of the case extracted the term, questions of fact and degree, arise again, but the circumstances under consideration in the AIG case were wholly different to the circumstances now before the Commission in that there was multiple bargaining periods bargaining at many different enterprises simultaneously.

PN445

The question there arose to whether a bargaining party bargaining in more than one work place could deliver pretty much an all or nothing ultimatum on the material facts not essentially different from that to be considered to genuinely trying to agreement. That's nothing really quite like what's before the Commission. There is before the Commission a set of circumstances where the AMWU on the evidence of Mr King and Mr Laba are working towards, and in my submission, trying to reach agreement with the employer but the circumstances now before the Commission indicate on the evidence of Mr Laba as well that the bargaining here has been what I might call for want of a better word, site specific, and the various exchanges of ideas and views both in meetings and through the exchange of correspondence have dealt with issues that are particular and peculiar to Amcor's Kyabram operations.

PN446

But none the less if we are simply just to apply the ordinary meaning of the provision genuinely try to reach agreement, if we were to strip away the further colour that’s injected into the phrase by genuinely, it appears that Mr King has tried to reach an agreement based on an unstrained and ordinary use of the English language. Mr King has met with the employer on one occasion, one day before the bargaining period commenced. The bargaining period commenced according to the Act on 8 April this year. The notice was served upon the company, received by the company on 31 March. There was a meeting one day before. While that meeting and the exchange of ideas did not occur within when the bargaining period commences. I'm not sure of the section of the top of the head from when the bargaining period commences, I think its 421, no its not, 427.

PN447

Thank you. I think that the events that occurred on 7 April that Mr King and
Mr Laba depose of are relevant and should be included in the Commission's consideration of the test. Notwithstanding they did not occur with the bargaining period which is what is required in section 461. They are relevant because at that meeting there was a significant exchange of idea and views about how an agreement could be reached. The union or the applicant in these proceedings did present to the Commission quite detailed views about how an agreement could be made to satisfy the needs or the desires and wants of the members working at the plant who constitute the vast majority of persons employed there. I don’t think there's any doubt about that.

PN448

Mr King had deposed that he consulted and then he parlayed those views to the company and then that set the tone and colour for future meetings. What occurred on the 7th would have been alive and in the minds of the parties on to the 8th where the bargaining period started, 9th, 10th and subsequent meetings leading into the further meeting that occurred on 21 April 2006. Mr King gave an extensive account of the dealing he's had with the company in evidence. It would be a mistake in my submission to call Mr King's dealings with the company brief and perfunctory. It would be a mistake for the Commission to make a finding that, with all due respect, that Mr King's dealing with the company were superficial. Mr Laba himself admitted that Mr King had given responses to various items. Sometimes more detailed sometimes less detailed.

PN449

He had taken into consideration views of the employer. He had responded promptly with the employer and Mr King deposed that he remains open and willing as of this date to continue to meet with the employer in an effort to secure an agreement. Now the way the Act is currently structured it may be - it appears to be somewhat unclear as to the interaction of the notion of pattern bargaining now incorporated into the Act with the genuinely try test as it has been referred to earlier. Pattern bargaining is a course of conduct that can effectively negative an agreement but there is an exception in section 421 subsection 3 that states that and I quote from the subsection:

PN450

The course of conduct to the extent that it relates to a particular single business or part of a single business is not pattern bargaining if the negotiating party is genuinely trying to reach an agreement for the business or part.

PN451

So it appears under the Act as it now stands that even if one is engaging in the conduct referred to in subsection 1 which is not been dealt with yet but if one can say, can establish that one is genuinely trying to reach an agreement then the idea of pattern bargaining or the exclusion from having a ballot order made is vitiated. Then going on to subsection 4, it says:

PN452

For the purposes of subsection 3 the facts as relevant to working out whether the negotiating party is genuinely trying to reach an agreement for the single business or part of a single business include but are not limited to the following -

PN453

And I want to spend some time going through the six paragraphs that there follow. The first is:

PN454

(a) demonstrating a preparedness to negotiate an agreement which takes into
the individual circumstances of the business or part.

PN455

I end my quotation there. Commissioner, I think it's fair to without going into any depth to characterise Mr King's evidence as meeting that criterion and more over I would draw the parties attention to the attachment (a) to the application which is, starts with the covering letter from the initiation of bargaining period.

PN456

THE COMMISSIONER: Yes, I've read that, it's of 31 March.

PN457

MR TERZIC: Yes and just excuse me for a second Commissioner. Thank you. At the second paragraph of the letter dated 31 March sent by Mr David Oliver the state secretary of the applicant union to Mr Ginns, manager of Amcor Packaging as operations at Kyabram, the union there stated and I quote:

PN458

To this the AMW extends to you a preparedness to negotiate an agreement which takes into account the individual circumstances of your business.

PN459

That’s a letter under the hand of the state secretary of the union and that meets with the requirement set out in section 421(4) paragraph (a):

PN460

To negative the notion that pattern bargaining is occurring and at any rate apart from the commitment given.

PN461

I say its borne out on the evidence given by Mr King. Secondly, at paragraph (b):

PN462

Demonstrating a preparedness to negotiate a workplace agreement with a nominal expiry date which takes into account the individual circumstances of the business or part.

PN463

As I understand it a nominal date has already been agreed to. I think that came out in the evidence of Mr King and Mr Laba. If I am wrong in that regard I withdraw that submission but none the less with that not being a contentious issue it should show that full effect should be given to paragraph (b) to negative the notion that (a) the union is not trying to genuinely trying to reach agreement or (b) pattern bargaining has occurred. Paragraph (c) in subsection 4 reads, I quote:

PN464

Negotiating in a manner consistent with wages and conditions of employment being determined as far as possible by agreement between the employer and its employees at the level of the single business or part.

PN465

Mr King gave evidence that he's met with the employees at the plant, sought their views as to issues going to wages and the wage rates he are seeking are based upon the existing wage rates that are in the plant. They will be some function or derivative of the prevailing wage rates. Mr King has not levied demands on the company that would seek to impose wage rates consistent with some broader industrial agenda or totally alien or inconsistent with what prevails at the site. Paragraph (d) says, agreeing - of the Act subsection 4 of section 421 says and I quote:

PN466

Agreeing to meet face to face at reasonable times proposed by another negotiating party.

PN467

I end the quote. Mr King has generally given - indicated a preparedness to met face to face, he has been in contact on the phone, he has not any stage on the evidence given been evasive or simply left a set of demands and said, that's it, don’t speak to me again until you've agreed. Mr King's engagement with the company up to this point during the bargaining period, in my submission, has been extensive and as I say even on the 7th before the bargaining period commenced he was available to meet and the parties took with them from that meeting a set of parameters designed towards reaching a concluded agreement. Lastly at paragraph (f) of subsection 4 of section 421, the factor therein states:

PN468

Not capriciously adding or withdrawing items for bargaining.

PN469

On my hearing of the evidence I submit, Commissioner, it is open here to find that Mr King has not acted in that way capriciously adding or withdrawing items for bargaining. There might be some dispute as to whether some items are right for agreement or not right for agreement. That's just the normal incident of bargaining. Bargaining doesn’t mean that one has to be pretty much ad idem from start to finish. It is an exchange of ideas. It is an exploration of how that needs can be met but the circumstances that are referred to there would be bargaining tactics designed to thwart and not try to reach agreement but perhaps try to frustrate another party, manoeuvre another party or to create circumstances where the engagement between the two parties is a sham or taken upon for an ulterior purpose.

PN470

An ulterior purpose might be for the purpose of obtaining a ballot and taking protected action in support of some other objective or aim and that is I don’t think likely based on the record Mr King has in negotiating now and indeed I'm not sure if it came out in the evidence but I think Mr King has negotiated agreements at Amcor successfully before. He might have said that. But I can make that assertion from the bar table with some confidence none the less. So in brief, Commissioner, the requirements of section 461 subsection 1 are met in a way that would not prevent the Commission from making the ballot order. None the less there is a further test at subsection 2 which says that the Commission:

PN471

Despite subsection 1 the Commission may refuse the application if it satisfied (a) the granting of the application would be inconsistent with the objects of the division or (b) that the applicant or a relevant employee has at any time contravened a provision of this division or an order or a direction given under this division.

PN472

I simply say in relation to (b) that has not occurred, there is no evidence of that occurring and in relation to paragraph (a) I fail to see how the granting of this application would be inconsistent with the object of this division which is in essence to provide secret ballots in a timely, fair and accurate way and that's the purpose why we are here. And even then the Commission does - if the Commission has any doubts as to that the Commission has discretion, it needs not refuse the application but I say there's nothing there for the Commission to exercise its discretion on at any rate.

PN473

THE COMMISSIONER: Mr Terzic, I'm going to adjourn shortly, I don’t want to - you've dealt with 421 and 461 as they co-exist.

PN474

MR TERZIC: Yes, now Commissioner, yes, I've dealt with another discreet part of the matters the Commission must consider in this application. There are other discreet parts and we've dealt them as they have arisen and it might be opportune now to adjourn given the time of day. To have proceedings carry on in a more comprehensive fashion it might be that Mr - - -

PN475

THE COMMISSIONER: I hope it's been reasonably comprehensive.

PN476

MR TERZIC: Well, yes, its of the future - it might be opportune for Mr Pill to put his submissions in reply on each of the discreet issues as they are raised or whether I should expect to carry on, on Monday morning on the rest of the matters.

PN477

THE COMMISSIONER: Is your submission finished?

PN478

MR TERZIC: Just in relation to section 461. There are some other sections of the Act I need to address.

PN479

THE COMMISSIONER: Yes. All right. Well about how long on 461?

PN480

MR TERZIC: 461 finished. I just want to speak generally to how some of the other requirements of the Act and that.

PN481

THE COMMISSIONER: Yes. All right. Well about how long would you be likely to be doing it?

PN482

MR TERZIC: One of the issues that I would like to address is whether the Commission makes an order for an attendance ballot as opposed to a postal ballot. Mr Pill has indicated that his original instructions were that it was for a postal ballot but none the less perhaps he might receive fresh instructions on that after the weekend adjournment. So that might be something that doesn’t need to be argued out as vigorously.

PN483

THE COMMISSIONER: That's what I'm alluding to.

PN484

MR TERZIC: So I think at this juncture it might be appropriate to adjourn and carry on Monday morning.

PN485

THE COMMISSIONER: Yes. Thank you, Mr Terzic. Now, Mr Pill, do you want to say something before I conclude.

PN486

MR PILL: Only, Commissioner, we've sort of left a little bit hanging. In response to my friend's suggestion I think it's appropriate that he conclude his submissions. I can make submissions and if he has a need to make submissions in reply, he can do so and I suggest we do that in toto. I wasn’t sure in response to your question how long Mr Terzic was going to be on the matter.

PN487

THE COMMISSIONER: Yes, I won't hold you. I mean if there's anything - - -

PN488

MR PILL: Just an indication just so that I can and indeed the Commission can plan - - -

PN489

THE COMMISSIONER: Well I don’t want to finish with a slur to all because if there is anything about which - any one topic of that upon which they cannot be relied upon, it is there estimation of their - - -

PN490

MR TERZIC: 20 minutes would be a reasonable period of time.

PN491

THE COMMISSIONER: Good. Yes.

PN492

MR TERZIC: That might fluctuate a little bit depending on Mr Pill's position on instructions on the postal ballot as opposed to other forms of ballot.

PN493

THE COMMISSIONER: Well that's a matter for Mr Pill to put his submission. Mr Pill, you can deal with the issues on Monday in whatever sequence you like and then for you to make your own case naturally. I'm considering starting slightly earlier on Monday having advised, put in train advice to employees and indicated it would 10 o'clock. It might be - I have a commitment, I do have to travel later on Monday and for that reason I must say I'm thinking of starting at 9.30. Does that cause any problem for you Mr Pill or Mr Terzic, a slightly earlier start?

PN494

MR PILL: No, Commissioner, other than the issue yourself identified regarding the employees - - -

PN495

THE COMMISSIONER: Yes, well I'm satisfied that they'll be - because we'll be here at 10 o'clock and should anyone want to - - -

PN496

MR PILL: Front up.

PN497

THE COMMISSIONER: Yes, I haven’t any thought that the matter would be concluded by 10 o'clock. So we will sit at 9.30 on Monday 8 May and that just might make it a little bit easier to deal with all the issues. I'll attempt to - my aim is to give a decision about these things and time will assist. Thank you gentlemen for your submissions and I'll now adjourn until 9.30 on Monday morning.

<ADJOURNED UNTIL MONDAY 8 MAY 2006 [9.30AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAMIAN PATRICK KING, AFFIRMED PN76
EXAMINATION-IN-CHIEF BY MR TERZIC PN76
EXHIBIT #AMWU1 APPLICATION PN84
EXHIBIT #AMWU2 DOCUMENT PN84
CROSS-EXAMINATION BY MR PILL PN134
THE WITNESS WITHDREW PN218
BORIS LABA, SWORN PN232
EXAMINATION-IN-CHIEF BY MR PILL PN232
EXHIBIT #AMCOR1 MINUTES OF MEETING 21/04/2006 PN239
CROSS-EXAMINATION BY MR TERZIC PN258
RE-EXAMINATION BY MR PILL PN295
THE WITNESS WITHDREW PN309