BP2006/2978, Transcript of Proceedings [2006] AIRCTrans 913 (28 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15417-1

SENIOR DEPUTY PRESIDENT ACTON

BP2006/2978 BP2006/2979

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
KEMPE ENGINEERING SERVICES PTY LTD T/AS KEMP INSTALLATION & MAINTENANCE SERVICES
s.451(1) - Application for order for protected action ballot to be held
(BP2006/2978)

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
KEMPE ENGINEERING SERVICES PTY LTD T/AS KEMPE MANUFACTURING AND ENGINEERING SERVICES
s.451(1) - Application for order for protected action ballot to be held
(BP2006/2979)

MELBOURNE

11.38AM, FRIDAY, 14 JULY 2006

Continued from 10/7/2006

Hearing continuing

PN103

THE SENIOR DEPUTY PRESIDENT: Mr Hale.

PN104

MR HALE: Thank you, your Honour. I'd like to recall Brendan Whelan to the witness box.

PN105

THE SENIOR DEPUTY PRESIDENT: I don't think you'd finished with him.

PN106

MR HALE: Sorry?

PN107

THE SENIOR DEPUTY PRESIDENT: I don't think you'd finished with him.

PN108

MR HALE: That was correct, yes.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Whelan. You remain sworn, Mr Whelan.

<BRENDAN WHELAN, ON FORMER OATH [11.39AM]
<EXAMINATION-IN-CHIEF BY MR HALE, CONTINUING

PN110

MR HALE: Thank you, your Honour. If I could just give the witness a bundle of documents to identify first, I suppose. I haven't got here a copy. I should have brought an extra one for the witness.

PN111

THE SENIOR DEPUTY PRESIDENT: What do you mean?

PN112

MR HALE: The witness has got one, I just didn't have a spare one or two to go to you.

PN113

THE SENIOR DEPUTY PRESIDENT: Right, yes.

PN114

MR HALE: Okay. With that bundle of documents, if I could get you to identify the top one and what it is, who it's from. You recognise that document?---Yes, certainly do. That's a letter that I'd sent Mr Boylen on 10 July just seeking more EBA negotiations of both operations, seeking clarification on Mr Boylen's position, if he could give us a letter saying that wasn't the company's intention to renegotiate the agreement of Moon Street. I was trying to get his position on the shed 6 negotiations. And the last paragraph of that was just a response to some other correspondence that Mr Boylen had sent me.

PN115

Okay. And that's dated the 10th, that's the one dated 10 July?---Yes.

PN116

I'd seek to tender a copy of that document, your Honour.

EXHIBIT #A9 LETTER FROM BRENDAN WHELAN TO ROGER BOYLEN DATED 10/07/2006

PN117

MR HALE: Okay?---Sorry, your Honour, I didn't hear what that one was.

PN118

THE SENIOR DEPUTY PRESIDENT: A9?---A9? Thank you.

PN119

MR HALE: If I could take you to the next document. It's the one, I think, dated Tuesday, 11 July?---Yes. That some correspondence that Mr Boylen had sent back to me in reference to my letter on 10 July and with that we had organised to have a meeting yesterday afternoon at 2.30. And yes, that's where Mr Boylen had made some claims that we'd been trying to get a common law deed. So that's certainly correspondence that Roger had sent back to me.

PN120

Okay. If I could tender that document, your Honour.

**** BRENDAN WHELAN XN MR HALE

EXHIBIT #A10 LETTER FROM ROGER BOYLEN TO BRENDAN WHELAN DATED 11/07/2006

PN121

MR HALE: Thank you. If I could take you to the next document in the bundle?
---Yes. Yes, that one's for the letter I received from Mr Boylen on the 11th. It was appropriate that we respond to that. So I'd sent back that response to him.

PN122

That's the one dated 13 July 2006?---13 July, yes. That's correct.

PN123

And that's from you to Mr Boylen?---Certainly is, yes.

PN124

Okay. And that's your response to Mr Boylen's letter A10, is it?---Yes.

PN125

I tender a copy of that as well, your Honour.

EXHIBIT #A11 LETTER FROM BRENDAN WHELAN TO ROGER BOYLEN DATED 13/07/2006

PN126

MR HALE: Thank you, your Honour. If I could take you to the final document in the bundle?---Yes. It's a letter that I received from Mr Boylen he'd sent off to me yesterday and I only got possession of the letter this morning and I haven't as yet had a chance to respond.

PN127

And that's the one titled Union Collective Agreement on Ongoing Negotiation?
---That's correct, yes.

EXHIBIT #A10 LETTER FROM ROGER BOYLEN TO BRENDAN WHELAN DATED 13/07/2006

PN128

MR HALE: If I could take you to the document marked A10?---Yes.

PN129

Yes, okay. The meeting that was requested in relation to, I think it was in that document, if I could - have there been any further meetings held between you and the company in relation to both the sites?---Look, we did have a meeting yesterday at 2.30. That was in relation to the Port Arlington Road site. As of yet no, we haven't met over the Moon Street operations.

PN130

But you have requested it?---I have requested it, yes, a number of times in writing and just through the correspondence there I think it's pretty self explanatory.
Mr Boylen had sent me back a letter saying to get me a representative to organisation a meeting and our representative is no longer an employee of the company and subject to some upcoming hearings. I have been out at Moon Street on another issue of some mix ups in wages and so I was out there yesterday and also on Tuesday in relation to wages issues and I've organised a meeting for next Thursday where I'm going to meet with the troops and elect some representation. Certainly nothing on the EBA at Moon Street.

**** BRENDAN WHELAN XN MR HALE
PN131

Okay. Now, dealing with the letter of Tuesday, 11 July, which is tendered as A10?---Yes.

PN132

Now, there's some discussion there about the union's previous refusal to participate in any meeting that Ron Kempe is a participant?---Yes.

PN133

What have you got to say in relation to that?---Look, I thought I covered that off with my correspondence of 13 July where, you know, we don't think Ron plays the best productive role in dealing with the issues. But look, we've certainly never refused to meet the company, you know, in regarding an EBA if Ron's involved in it. It's never been our position.

PN134

Okay. Has the company accepted that?---Yes. I think, look, in the document marked A12 and, look, at a meeting that I've had with the company, yes. They said that it wasn't anybody from the AMWU, it was Gavin Penn from the AWU that made the comments. I spoke to Mr Penn on the phone last night and he's refuted that.

PN135

He's refuted it or he's agreed that it wasn't an AWU official?---Yes. No, that wasn't their position too and Mr Penn shares the same view as us where Ron's not the easiest person to deal with. You know, he can't pick who the company's negotiating team is.

PN136

Okay. So Mr Penn has expressed the view that the AWU understands that they can't say who appears on the other side?---Yes, that's correct.

PN137

Now, second paragraph from the bottom Mr Boylen says:

PN138

The company will not negotiate prohibited content, non allowable matters or common law deeds as required by the union at previous union collective agreement meetings.

PN139

What have you got to say about that?---Well, that's another one I sent correspondence of. It's never been the AMWU's position with Kempe at Geelong that we're pursuing a common law deed. Look, and I've got some minutes I took from our EBA meeting where there again the company agreed that it wasn't us that had put a claim for a common law deed on the table. They say there again it was Mr Penn from the AWU. And I spoke there again with Mr Penn and he says that's not the case. Yes. But our meeting last night was certainly cleared up between. I think we got agreement on the parties that the AMWU is not seeking a common law deed.

**** BRENDAN WHELAN XN MR HALE
PN140

Okay. Now, the AWU is also a party to the current agreement?---Yes.

PN141

Okay. But that could change if it had to change, if the AWU wasn't prepared to reach agreement in relation to this log of claims?---Yes. Well, it's my understanding it isn't that the AWU are chasing a common law deed, but if they put the position to us that, you know, they wanted a common law deed, you know, before they'd sign on to the agreement I suppose I'd be telling them go for your life, but it's not going to hold us up.

PN142

Right, okay. Now, in the final paragraph it says:

PN143

In respect to the final matter referred to in your letter 10 July 2006 in which you refer to the company's knowledge of the employee's rejection of the company's offer and a vote to seek protected action for 29 June 2006 -

PN144

It goes on:

PN145

The company wishes to state that it is not in possession of such information and is unaware of the union's intent.

PN146

Now, is it your normal practice to advise the company in writing of the results of meetings and the members?---No.

PN147

Okay. Well, the company would normally be informed of anything that was going to affect the company, but otherwise it's union business, is it?---Yes, that's correct. But look, I'm certainly aware of the manager down at Shed 6, Mr Allen. Yes, we're certainly aware of some of the - every union meeting that I run there's always a bit of spillage that sort of leaks out to the management and we heard that Mr Allen sort of knows what we've been discussing.

PN148

Okay?---And I just found that - look, I'd sent correspondence back to Roger on that one. I just sort of found that very hard to believe considering, your Honour, we already had two hearings up here in pursuit of the secret ballot, I mean, to hold that position.

PN149

Yes, okay. On the negotiations that you've been having with the employer have you been listening to the position they're putting to you and considering it as part of those negotiations?---Yes. Yes, we have.

**** BRENDAN WHELAN XN MR HALE
PN150

Have you been putting any alternative positions to the company?---Yes, I think we have, yes.

PN151

Would you just give us some idea of what's been happening in relation to negotiations? Maybe if we start at Moon Street, but I think your evidence was that there hasn't been a lot happening at Moon Street?---No. Well, at Moon Street I suppose the evidence is, well, the correspondence sent to the company asking for negotiations. Look, I've had, I'll go through my notes again, but we had one informal meeting down there where the company had asked for the representatives to go out and do a bit of research as to what other like companies were paying around the areas and what the company had put to us at that meeting a 36 hour week was working for them. So we'd agree we were going to go and talk to the boys and that if there was any way that we could make it work better for the company and work for the boys.

PN152

So that was at Moon Street?---Yes, that was at Moon Street, yes.

PN153

But the company has withdrawn all negotiations in relation to Moon Street. I think in some of your correspondence you asked whether that was still their position, didn't you?---Yes, I did, yes.

PN154

Okay. What was their response? Have you had a response?---Yes. Well, their response was, that was in the letter. Bear with me, I'll find it here. They responded in correspondence saying that it was our position not to negotiate down there because we didn't want to sit with Ron.

PN155

Okay?---That's where it sort of come out through in a few other letters. Yes, it wasn't us at all. That claim was Gavin Penn who was talking on behalf of us apparently.

PN156

Okay. Now, what's been the situation at Shed 6?---Well, Shed 6, yes. We sat down and had a meeting yesterday where we were happy, we could see some move in the company's position with the wrap up. I've taken some hand notes here. I might just go through them if that's okay.

PN157

Yes?---The company's offer was they're now saying that three years is the negotiating point, that they want a 36 plus two hour week and saying that they need two agreements. They're saying no to any wages being backed over. They also need some clarification on the short shift arrangements that we had put to the company. So we went through to give them that clarification. The company put the position to us that there was some movement in their monetary position. They told us that they can't go past 11 per cent in wages. And we put to the company if there is any movement that they can make in other areas and spoke about maybe, you know, allowances or something. The company said that they were going to take that on board and come back and respond to us, I suppose at our next meeting. I suppose we spoke about the two agreements for a while and it's sort of very hard for me to work out what the company's position is. At one stage they're saying that yes, they want two agreements, then he said that it wasn't a big thing for the company to have the two agreements, but then he again said that they did want two agreements. I'm still not 100 per cent where they're sitting with that. We then spoke about the issue of the deed because I'd sent correspondence off to Roger, you know, saying that it's never been our position down there. We spoke about that for a little while and then Roger had told us that it was Gavin Penn from the AWU that had put the deed on the table. I then clearly put that we have no claim for a common law deed to cover non allowable matters. We spoke about then income protection premiums increase. So we spoke about, you know, we looking for the company to cover them increased premiums. Then we spoke about the appended award. The unions legal people have done a lot of work taking out non allowable matters and non pertaining matters out of the award. We had put that up to the company three, four meetings ago. The company sort of had a look at it and came back and said no they weren't interested in the appended award. We spoke about that for a little while last night and I told the company it was now my understanding that the AIG had ticked off our version of the appended award as a true and accurate reflection. I asked them if that would change their view and Mr Boylen put to me that he was catching up with
Mr Dalton today and he would run that past him and come back to us. So that's where we ended up yesterday.

**** BRENDAN WHELAN XN MR HALE
PN158

Okay. So in relation to both sites you are genuinely trying to reach agreement?
---Yes, definitely.

PN159

And you want that agreement made into a collective union agreement after as a result of the bargaining?---Yes, certainly do.

PN160

And you're not pattern bargaining in relation to this? You're not putting in a same claim on a number of different employers?---No.

PN161

I have no further questions for the witness, your Honour.

PN162

THE SENIOR DEPUTY PRESIDENT: Mr Dalton.

PN163

MR DALTON: Thank you, your Honour.

<CROSS-EXAMINATION BY MR DALTON [12.02PM]

PN164

MR DALTON: Mr Whelan, I might deal with the two sites separately if I can, just so we can save us some confusion there?---Yes, okay.

PN165

And just leaving Moon Street aside for the time being, we'll just refer to Port Arlington Road and the Alcoa site negotiations. Now, you wrote to the company on 10 July seeking a further meeting. I think that's A9?---Yes, that's correct.

PN166

Okay. And the company wrote back advising you that they were happy to meet and that was A10 and the company - I'll go back to that. And you met with the company yesterday being Thursday, 13 July 2006?---That's correct.

PN167

Okay. And at that meeting you discussed a number of issues. At that meeting you were also advised by the company at that meeting there was also significant discussion around the issue of the deed, wasn't there?---Yes. Yes, we discussed the company's claims that the AMWU had a deed on the table.

PN168

Okay. And Mr Boylen showed you a copy of that deed, didn't he?---He flashed me the front cover of a deed, yes.

PN169

Okay. I'm happy to give you a copy if you like. I'll tender that if I may, your Honour.

EXHIBIT #R1 DRAFT DEED

**** BRENDAN WHELAN XXN MR DALTON
PN170

MR DALTON: You've seen this document before?---No, I haven't.

PN171

Never seen this document before at all, ever?---No, that's correct.

PN172

Okay. This isn't the document that was presented to the company on behalf of the AMWU in terms of a deed that they were seeking?---Yes, that's right. We're not pursuing a deed with Kempe or any of the companies that I'm looking after in Geelong.

PN173

Did you make the statement yesterday at the meeting that the claim for a deed was now being officially withdrawn?---Look, I certainly wanted to clarify our position with the company. I think I've put that it's never been our claim for a common law deed.

PN174

THE SENIOR DEPUTY PRESIDENT: So what's the answer to the question?
---Sorry?

PN175

MR DALTON: You make the statement that the claim for a deed has now been officially withdrawn?---I don't think I would have said them words.

PN176

Okay. So in terms of this document, which is R1, which is stated at the top to be a draft, the deed is made on the blank day of blank 200 between one Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of 440 Elizabeth Street Melbourne Victoria 3000 and to XXXX ACN. You have not seen that document before, at all, even in regards outside of Kempe?---Look, I note the union does have copies of deeds around, common law deeds for these issues, but most of the companies that I look after are tied up in the construction industry and there's a concern with companies signing on to deeds that are not code compliant. So I have seen, you know, the front cover of one of these at our office, but I've never had a look through the document.

PN177

Okay. And you never at any time at any meetings with Kempe said that a deed is a contingent part of coming to an agreement with Kempe?---That's correct.

PN178

Are you seeking any side arrangements at all with Kempe?---Look, we have discussed issues around AWAs, we certainly have and one meeting that I've had with Mr Boylen regarding Moon Street, yes, I'd give him a draft clause.

PN179

Okay. So you are seeking some sort of side arrangement that can not be covered within the enterprise agreement around the issue of AWAs?---No. I'd given
Mr Boylen a clause that can go into the agreement.

**** BRENDAN WHELAN XXN MR DALTON
PN180

Are you aware that prohibitions on Australian workplace agreements as prohibited content in a registered workplace agreement?---Yes, I am aware of that.

PN181

So how do you propose that you can put a clause prohibiting Australian workplace agreements into a workplace collective agreement?---It wasn't prohibited under workplace agreements, the clause that I'd given him.

PN182

Sorry?---It wasn't prohibiting Australian workplace agreements, the clause that I'd given him.

PN183

Did you give him a document which is:

PN184

The company will not have an industrial instrument or any other form of agreement which in an overall sense disadvantages employees compared to the terms of this agreement. To clarify this it in no way inhibits a choice of industrial instrument or agreement with the employer and/or employees in this regard. It is the intention of the parties this clause is confined to those employees employed in accordance with the classification listed in part 1 general in this award.

PN185

Is that the document you're talking about in terms of an agreement around not using AWAs?---That's a draft clause that I put to Mr Boylen. That's exactly the clause I put and it does not prohibit the company using AWAs.

PN186

So how do you propose to prohibit the company using AWAs if the clause doesn't prohibit the use of AWAs?---I'm not proposing that I prohibit the company from using AWAs.

PN187

I thought you said before that you'd had discussions with the company about arrangements that would prohibit them using AWAs?---No, no. It isn't our position at all. Our concern is AWAs undermine the agreement.

PN188

Look, I'm confused?---Nothing in that clause stops the company from using AWAs the way that I read it.

PN189

But I'm confused in terms of what I think I understood your previous testimony to be, in that you had had some discussions with the company around them not using AWAs and you were seeking some sort of agreement on them not using AWAs. Are you seeking an agreement with the company on not using AWAs?---We have spoken about the issue because the demographics, one of the company's operations, they're actively out there selling AWAs.

**** BRENDAN WHELAN XXN MR DALTON
PN190

Are you seeking an agreement with the company not to use AWAs?---Look, I .....

PN191

Look, it's a yes or no answer. Are you seeking an agreement with the company not to use AWAs?---Yes, I suppose I am, yes.

PN192

Okay. And how do you propose that that agreement be put in place?---With the shake of hands, gentlemen's agreement if you like. I have certainly not put to the company that I want to have words in their agreement. I want the company code compliant, as I put to them last night.

PN193

But the company can't be code compliant if there is any sort of agreement, can there? Any sort of site agreement covering AWAs, whether they be hand shake or written. There can't be any sort of agreement, can there?---Well, look, my understanding of the new laws, look, there's nothing that makes a company have to use AWAs.

PN194

Gavin Penn and Leigh Diehm started off the negotiations for the new enterprise agreement, or new workplace agreements, at Kempe. Is that correct?---That's correct.

PN195

And I think there was three or four agreements with Leigh Diehm and Gavin Penn before you took over?---Three or four meetings?

PN196

Yes. Is that right?---Yes. I got my notes here. I think it would be around that number, yes.

PN197

Are they your notes, or are they Leigh Diehm or Gavin Penn's notes?---These are all my hand written notes, but I worked very closely with Gavin and with Leigh and look, I've got notes on their meetings, yes.

PN198

Okay. And did they keep you appraised of what the negotiations have and the negotiations been taking place?---Yes, they certainly did.

PN199

And in terms of that Gavin Penn took the lead role in the negotiations for both the unions, didn't he?---That's not my understanding.

PN200

Okay. Gavin Penn gave this deed to the company on behalf of both unions, didn't he?---No.

**** BRENDAN WHELAN XXN MR DALTON
PN201

Okay. This is a document that has been tendered in negotiations as being a requirement for the progression of a workplace agreement. That is true, isn't it?
---That's not true.

PN202

Is the withdrawal of that deed a strategic position by the unions to overcome the Commission's reluctance to grant orders in regards to the recent Cadbury Schweppes decision that would prevent the union from having a secret ballot regarding protected industrial action?---I don't think you've heard me, Mr Dalton. It has never been the AMWU's claim at Kempe's in Geelong for a common law deed. There has never been. I wonder whose hand writing's on this document you've given me.

PN203

Sorry, your Honour. I'm just looking for a document that I thought my secretary photocopied, but I don't appear to have it in my bundle. I have a couple of copies here?---Shall I lend you this one?

PN204

I'll show Mr Whelan a copy of this. I do have another copy, your Honour. It does have some writing over it, but ..... unfortunately, yes. I think that that was part of your - - -?---I think it has been tendered.

PN205

Yes, it has been tendered. Sorry, yes. It has been tendered. Sorry about that. That was in the original bundle.

PN206

THE SENIOR DEPUTY PRESIDENT: A6, I think.

PN207

MR DALTON: Yes, thanks. I'll just take you to that log of claims, Mr Whelan?
---Yes.

PN208

And can you just read out point 10?---Yes, I can. Point 10 says:

PN209

Disputes panel into a deed.

PN210

So it's never been the claim of the AMWU that a deed, and yet it appears on your log of claims that was given to the company?---This log of claims, the boys had a meeting and my understanding is our delegate, Barry Bryant, had drawn up this log of claims and that was something that was passed onto the company as negotiating points before we started a formal bargaining period. When we started the formal bargaining period I had discussions with the members and I explained to them that that was something that we weren't going to be pursuing.

**** BRENDAN WHELAN XXN MR DALTON
PN211

So after the formal bargaining period, I think you're talking about the notice of
19 June?---Yes.

PN212

With the bargaining period to commence on, I'd say, 27 June?---Yes.

PN213

That this log of claims no longer had validity after that time period?---Well, I would say that, you know, the log of claims here was - yes, well look, obviously. Certainly a bargaining period has come over the top.

PN214

So are you saying that you withdrew this log of claims, including the claim for disputes panel into a deed once the bargaining period commenced?---Look, this log of claims was drawn up before I was, you know, the file was handed back over to me. And look, what it says in number 10 doesn't make sense to me anyway.

PN215

Look, you've been quite emphatic in your evidence that it's never been a claim of the AMWU that they are seeking a deed with Kempe, and yet here it is in black and white and now you're saying it must have happened before you became involved?---Look, Mr Dalton, that doesn't say that we're chasing a common law deed to cover non allowable matters.

PN216

What is the title of the document?---Log of Claims.

PN217

Okay. Who was the document drawn up by?---The delegate.

PN218

And what, he's a delegate, an AMWU delegate?---That's correct.

PN219

Okay. And this was presented in negotiations as a log of claims?---Yes, that's correct.

PN220

So I put it to you that your claim that the deed has never been a part of the claim in terms of the AMWU seeking a new agreement with Kempe is not correct because there it is in black and white?---But what I'm seeing in front of me in black and white doesn't say we're looking for a common law deed to cover non allowable matters, Mr Dalton.

PN221

And then you said you pulled this out when the bargaining period started. So in terms of what the union is now seeking from Kempe, if I am correct here, they're seeking a collective workplace agreement and also some sort of agreement on the company not using AWAs. Is that right?---It's the union's position, Mr Dalton, we think the collective agreement is the way to go and it's the employee's position that they want collective agreements. Now, I know the new laws. I know it's illegal to restrict AWAs. Having all that in mind it's our strong preference that the company doesn't use AWAs.

**** BRENDAN WHELAN XXN MR DALTON
PN222

I don't think you answered the question, Mr Whelan. I said it's the union's position that they're seeking now a collective workplace agreement and some sort of agreement with the company about not using AWAs. Is that correct?---Yes.

PN223

Okay. So whether the issue is a deed or a memorandum of understanding or an exchange of letters or a hand shake the union is still seeking some sort of commitment from the company not to use AWAs?---That would be, yes. I suppose that's our position, but having regard to, you know, one workplace where people are getting leant on to sign AWAs, of course we're not happy about that.

PN224

Now, I think there were three or four meetings with Leigh Diehm and Gavin Penn with the company before you took over negotiations?---Yes.

PN225

And I think that there has been three or four meetings with you, apart from the meeting that happened yesterday with the company around Shed 6?---Yes, roughly. I can go through and count them up exactly if you want.

PN226

That's okay. I mean, three or four, that's fine. I'm not overly worried about it?
---Yes. We started negotiating with the company on 5 April.

PN227

And the last meeting that took place regarding Shed 6 before yesterday's meeting was on 22 June 2006?---That's correct.

PN228

Okay. And that was prior to the bargaining period coming into effect on
27 June 2006?---Yes, that would be correct.

PN229

So in terms of your previous statement that the log of claims document, this log of claims, was withdrawn once the bargaining period was in place. So I take it that means that it was still in play up until 27 June when the bargaining period took effect?---You can take it, but I don't necessarily say it was in place.

PN230

This log of claims was in place until the bargaining period took place?---No, certainly not.

PN231

Okay. When did this log of claims cease to have effect then?---Look, I caught up with the boys I would say a couple of days. I haven't got my diary on me, but I would say it would be a couple of days before the original bargaining period got entered, which would have been around 17 June where I spoke to the guys, you know, about that issue.

**** BRENDAN WHELAN XXN MR DALTON
PN232

Okay. So 17 June that log of claims becomes defunct. Is that your evidence?
---Yes. Well, yes I would say. But this wording here, "Disputes panel into a deed", doesn't really make sense to me.

PN233

So in regards to the meetings that you had, you would have probably started to, I think your meetings started on 6/6?---On 1/6.

PN234

Okay, sorry yes. 1/6, another one on 6/6, another one on 13/6?---Yes.

PN235

And another one on 21/6?---Yes.

PN236

And 22/6?---Yes.

PN237

So in terms of the meetings of 1/6 and 13 June this log of claims would still have been in play?---I'm not sure when that log of claims actually came into play.

PN238

Mr Boylen will give evidence that this log of claims was presented at the first meeting on 5 May. That not in your notes that you got from Mr Penn or
Mr Diehm?---No. No, I've got my notes here from the 5th.

PN239

Okay. But you've seen this document, haven't you?---I have, yes.

PN240

Yes. So it was part of your bundle. So if it wasn't something that you were using, why was it submitted as being relevant to this matter?---Submitted to who?

PN241

Well, it was tendered as part of this matter. So if it wasn't relevant, why was it tendered?---I'm not sure I understand your question.

PN242

Well, you tendered it as A6 as being relevant to this matter. I say it is relevant to this matter and I put to you that all the items on this log of claims are relevant to this matter and have been relevant to this matter all the way through until yesterday and that the deed has been presented to the company and has been an integral part of the negotiations that the union's been involved in with this company?---You can put that to me.

PN243

Yes, I do?---I don't agree.

PN244

Now, still speaking about Shed 6 in terms of the negotiations that have been undertaken, prior to yesterday's meeting, which I understand was quite cordial and fruitful, is that your understanding?---Apart from a rocky start, yes I think it was probably the most cordial and fruitful meeting we've had since I've been, since the file's been back in my lap.

**** BRENDAN WHELAN XXN MR DALTON
PN245

Okay. Now, apart from yesterday's meeting in the previous meetings the company has made a number of concessions to the union's claims?---I have to go through my notes.

PN246

Well, let me help you, okay? Let me help you. The company has not agreed to pursue a return to a 38 hour week?---That's incorrect. It's incorrect. In the meeting yesterday the company said that they wanted a 36 hour week plus two. 36 plus two equals 38 to me.

PN247

Yes, but it's a different arrangement to just returning to a straight 38 hour week as being the standard week?---Well, there was no explanation.

PN248

What I'm saying to you is that the company had agreed earlier in the negotiations not to pursue a return to a standard 38 hour week?---No.

PN249

Okay, fair enough. The company had increased it's offer on wages?---Yes. Yesterday the company - - -

PN250

No, apart from yesterday, but previously there had been some changes in the company's moving on wages?---No, not before yesterday. Since I've been down there they have. The position I clarified in my letter on 10 July, that's been their position right the way through until yesterday where there was a bit of movement from the company and we were happy with yesterday's meeting.

PN251

The company has also conceded maintenance of trade union training leave?
---Sorry?

PN252

The company has also conceded maintenance of trade union training leave?
---Maintenance of training?

PN253

That it will continue to practice a trade union training leave?---That's not my understanding.

PN254

Okay. It must be a very confusing meeting?---They are, they are. You should come along, Tony.

PN255

Thankfully no?---I think they're designed to be confusing.

PN256

The company has conceded to keep the current RDO system?---No. Well, they haven't. They haven't. Look, the meetings have been going. One week we've got something agreed to and the next week it disappears. Look, you know, they can't concede to the current RDO system when they're talking about 36 plus two hour week which equals 38. So no.

**** BRENDAN WHELAN XXN MR DALTON
PN257

THE SENIOR DEPUTY PRESIDENT: When they put 36 plus two to you, what did you say?---At that stage I was taking notes, your Honour, and we ended up coming on to the main topic of conversation last night, was the wages. So I just took the notes down. Very hard. Look, I sent correspondence to the company asking them to clarify their position in writing and I was hoping when they give it to me in writing it might make it a little bit easier to understand.

PN258

MR DALTON: Okay, there does appear to be some confusion about what's been conceded and what hasn't, but okay, that's fine. Now, during the negotiations the union has been very strong on it's claim for a three year period of operation for the agreement?---Yes, that's our preference. But you know, we're happy to go longer.

PN259

And the union has also been quite strong on the claim for wages to increase in the order of 13 and a half per cent over the life of the agreement?---Yes, but we're happy to talk about higher. Our current wage claim is 10 per cent per annum.

PN260

Yes. In terms of that the negotiations started off with a claim for 13 and a half per cent over the three years of the agreement. That's correct, isn't it?---When negotiations started out - - -

PN261

I think it appears on the log of claims document, 13 and a half per cent over three years?---Yes. Yes, there it is, yes.

PN262

So that was the original claim?---Yes.

PN263

And as I say your evidence just a minute ago was that it's now 10 per cent per annum?---Yes. Yes, well that's stuff that I've put to the company in a meeting, in a number of meetings back.

PN264

Okay. Now, the union has conceded that - sorry. Has the union conceded that there's two workplace agreements, there can be two workplace agreements? One for Port Arlington Road and one for Alcoa?---We're still negotiating, Mr Dalton, and it was put to me that if we didn't agree the company was going to put AWAs out. Then when we, you know, when we met last night, I'm still unsure of what the company's position is on two agreements. At one stage they said that they want them, then they said that it's no big deal and then they said that they do want them. So it's certainly something that we've shown a willingness to negotiate on. But there again, it's very hard to understand the company's position.

**** BRENDAN WHELAN XXN MR DALTON
PN265

So in terms of Shed 6 and in terms of the, I think, now nine meetings including the meeting yesterday, the union hasn't made any concessions to the company, has it?
---They haven't made concessions?

PN266

Any concessions?---What do you mean?

PN267

Well, you haven't agreed with any position put to you by the company on any item?---Look, really the company has put to us that they want the 36 hour
week - - -

PN268

No, the question is has the union conceded on any claim put to the union by the company there has been no concession yet given by the union. Is that true or false?---Can I have a couple of minutes to go through my notes?

PN269

If you need some time, that's fine?---No, I'd say that's not right. The company had spoken to us about productivity improvements and we said we're not opposed to productivity improvements and then we've put the ball back in their court to say what productivity improvements they want and that's where there's been a fair bit of debate around the 36 hour week. But yes, we've conceded, if the company can point to us for some productivity improvements, we are prepared to go along with them.

PN270

So the only concession that's been made so far in these negotiations are a couple of month period is that the union is prepared to discuss productivity improvements?---Yes, I think that's a fair call considering the extent of the company's claims on us.

PN271

Okay?---Understand, Mr Dalton, one of their claims was for us to take a $182 a week pay cut. Of course we weren't going to concede on that and I don't know anything in the new legislation that makes us concede these issues.

PN272

Now, I'm just asking you the question, Mr Whelan. In terms of that you've given your answer. Now, in fact, the company did make a plea to you to be a bit more reasonable in the negotiations. That's correct, isn't it? In one of the meetings?---I don't remember that. Could you be more specific which meeting?

PN273

I think it was the meeting of 21 June. You may not have made a note of the comment?---I remember the meeting well. That was a meeting that went for 10 minutes. Look, yes, that could very well have happened.

**** BRENDAN WHELAN XXN MR DALTON
PN274

Okay. Do you remember your response?---Well, no I don't. I don't remember my response. I'm saying that it might well have happened, Mr Dalton. It was a bit of a shouting match that meeting.

PN275

Okay. Well, I put it to you that your response was to advise that the union's claim was now 10 per cent wage increase per annum. Is that correct?---Yes.

PN276

Okay. So the company says to you we want you to be a bit more reasonable negotiations and your response is well, wage increase is now 10 per cent per annum instead of 13 and a half per cent over three years?---Yes, that's right.

PN277

Now, in your evidence previously, I actually don't have it marked but I think you'll probably remember, you stated that there were no other issues with Kempe other than those specified in the bargaining period notification sent to them on
19 June 2006. Is that correct?---I'm sorry?

PN278

In your evidence the other day you made a statement that there were no other issues with Kempe other than those specified in the bargaining period notification sent to them on 19 June 2006. Do you remember that?---No, I don't. Have you got a copy of the transcript there?

PN279

MR HALE: What paragraph number is it?

PN280

MR DALTON: Sorry, I was looking at my notes and I don't ..... I apologise for my disorganisation, your Honour. There's so many bits of paper in these things. I'll leave that question, your Honour, seeing I can't find where it is in the transcript. In your bundle of documents that you issued, that you had marked the other day, there was a document marked A8?---I've got 1 through to 12, but I haven't got 8.

PN281

Have you got 8?---No, I haven't. I think I've got it in my file over there.

PN282

I'm happy to show it to you what A8 is?---Yes.

PN283

What's the purpose of the document marked A8?---A8, that was a document that my colleagues, that the company had put that was a tool to be used in negotiations, I suppose.

PN284

A tool to be used in the negotiations? Okay. Not a log of claims?---It doesn't look like a log of claims to me.

**** BRENDAN WHELAN XXN MR DALTON
PN285

Okay. And is the document that was ..... okay. That was prepared by Kempe, or AMWU?---No, it's Kempe.

PN286

Okay. Thanks for that.

PN287

THE SENIOR DEPUTY PRESIDENT: Is that a convenient point, Mr Dalton?

PN288

MR DALTON: Sorry?

PN289

THE SENIOR DEPUTY PRESIDENT: Convenient point?

PN290

MR DALTON: Yes, your Honour. Whatever suits you.

PN291

THE SENIOR DEPUTY PRESIDENT: I'll adjourn this matter until 10.15.

<LUNCHEON ADJOURNMENT [12.43PM]
<RESUMED [2.23PM]

PN292

THE SENIOR DEPUTY PRESIDENT: Mr Dalton.

PN293

MR DALTON: Thank you, your Honour.

PN294

I just want to return to a question I was having trouble with before, Mr Whelan, with regards to your previous testimony. In the transcript at PN59 it says:

PN295

Were you involved in the notice of initiation of a bargaining period, the collection of the matters that the initiating party proposes should be dealt with?

PN296

The answer:

PN297

Yes, I was.

PN298

So were you dealing with any other matters outside of those matters that were contained in that collective agreement, was that what you were seeking a meeting with Mr Boylen?---Yes.

PN299

And then it goes on:

PN300

So it was only, what, when you were seeking a meeting with Mr Boylen in relation to Moon Street, were you seeking anything more in the agreement than what was contained in the matters in the initiation of the bargaining period?

**** BRENDAN WHELAN XXN MR DALTON
PN301

And the answer is:

PN302

No, no, I wasn't.

PN303

So in terms of that, so that last part of your testimony says that you weren't seeking anything outside of the bargaining period notification?---I haven't got a copy of it. I was just reading through the transcript then, Tony.

PN304

You can read it, that's fine?---Yes. Okay, so what was your question I'm sorry?

PN305

The question is that in regards to the bargaining period notice you've stated there that in that last paragraph, I think it's 61, that you weren't seeking anything outside of the bargaining period notice?---That's right.

PN306

Okay. That's not true, is it, because you are seeking an agreement and had been seeking an agreement all the way through about at least about the issue of AWAs, no AWAs for Kempe?---Well, that's - - -

PN307

And that's not in the bargaining period is it, the bargaining period notice?---That's not the case. I've put a clause, a proposed clause, to Mr Boylen around AWAs, but it doesn't restrict the company's use of AWAs.

PN308

You wanted an agreement with the company that they will not give AWAs?
---Well, I would like an agreement with the company, but no, I haven't been actively pursuing that, Tony.

PN309

Okay, all right. I might just have that back, thank you. We have been discussing Shed 6, Port Arlington Road. I'd like to talk to you also now about Moon Street. Now, I think it was your evidence earlier today that you've had discussions with Leigh Diehm and Gavin Penn and they kept you informed about the discussions that they've had with Kempe about the agreements before you took over?
---Correct.

PN310

Okay. Now, did they discuss the meeting that they had in late April with Kempe with you?---Certainly did, which date on it? There was one in early April,
5 April.

PN311

Yes. I believe that's the one we're referring to. And they discussed that with you?---Yes.

**** BRENDAN WHELAN XXN MR DALTON
PN312

Okay. And Leigh Diehm and Gavin Penn, Leigh Diehm of the AMWU and Gavin Penn of the AWU, attended that meeting?---That's correct, yes.

PN313

Okay. Did Gavin Penn relay to you that he had discussions with Ron Kempe about the accuracy of the report backs to employees by the shop steward?---No. Gavin and I haven't had a conversation about that issue, no.

PN314

And did Gavin or Leigh advise you that they had further discussions with Roger Boylen in the car park and that Gavin Penn then told Roger Boylen in those discussions that he would not negotiate if Ron Kempe was involved? Was that relayed to you?---Look, I spoke to Mr Penn last night about this issue after receiving some correspondence and Gavin assures me that he, you know, he doesn't find Ron to be a very agreeable person and, you know, doesn't enjoy spending time with him. We don't get to pick your negotiators. Gavin's refuted that to me.

PN315

So did he specifically deny?---Denied it, yes.

PN316

Okay. Now, I believe you were involved in a meeting with Roger Boylen about Moon Street on 6 June 2006?---Yes. Look, I got my notes. I thought it was around the 8th, but I haven't got it detailed in my diary. But yes, I accept it was around that date, yes.

PN317

Okay. Look, I don't think anything turns on whether it was the 6th or the 8th so I'm not particularly worried?---Yes.

PN318

Okay. Now, at that meeting I put it to you that you made a claim to the effect that the union wanted the same increases in wages as had been achieved at other companies in the Geelong area, such as Downer and Danem, et cetera?---That's wrong.

PN319

You didn't make that claim?---No.

PN320

And at the same meeting I put it to you that you said that you wanted the same outcome as at Shed 6 for Moon Street?---No, that's wrong.

PN321

Also at that meeting you said words to the effect that if the company doesn't have a union agreement at Moon Street no Kempe employee on an AWA would be allowed to work at the Alcoa site?---That's a load of nonsense, Tony.

**** BRENDAN WHELAN XXN MR DALTON
PN322

Okay. The union was unhappy with AWAs at Moon Street, wasn't it?---You bet you we were.

PN323

Okay. And the union made it a precondition for a new agreement that the AWAs at Moon Street that had not been lodged would not be lodged?---Sorry?

PN324

There had been some AWAs agreed at Moon Street, but they hadn't been lodged with the office of the employment advocate?---Yes, that's correct.

PN325

And you made it a precondition for a new agreement that those AWAs would not be lodged?---No, that's not correct.

PN326

Okay. I'm not sure of the date, but I put it to you that you went to Alcoa and had a meeting with Linda Craven of Alcoa and you said to her that a Kempe employee who is a hydraulics technician was going to be prevented from coming on site because he was employed by Kempe under an AWA?---That's not true.

PN327

On the meeting of the 6th or 8th Roger Boylen made a statement to you that if it was the union's position that you would only negotiate if they weren't pursuing AWAs there was no point in further negotiations with the union. Do you remember that statement?---Look, I don't remember that one word for word.

PN328

Do you remember something to the effect of that?---Look, we did talk about AWAs at that meeting and that's where I handed Roger a copy of the proposed clause. I think the clause is evidence enough, isn't it Tony, that we're prepared to negotiate?

PN329

It's not for me to judge. Now, at the meeting yesterday with the company you advised the company that you were prepared to meet with Ron Kempe?---Yes.

PN330

But there was a previous meeting at the previous meeting on 6/6 you made a statement to Roger Boylen that you didn't want Ron Kempe involved in the negotiations for Moon Street. Is that true?---Yes, it very well could be true. It very well could be true, but look, I think I need to clarify the position here. In my correspondence it was Kempe's original position that they didn't want Ron Kempe negotiating and they had to wrap up a big blue over competency standards. I got called down to a meeting with a delegate and Rod Vincent, the manager down there, with Roger Boylen, they told us that Ron was out of IR and wasn't coming back. So it certainly wasn't the union that started this stuff off.

**** BRENDAN WHELAN XXN MR DALTON
PN331

You're aware that Ron Kempe is the manager of Moon Street?---No, I'm not. My understanding is Rod Vincent is manager.

PN332

Now, in terms of both sites where the AMWU and the AWU both have members on a particular site, it's not uncommon that they will negotiate an agreement together. Is that true? I should actually specific in the Geelong area, how is that?
---Look, yes. It happens sometimes, but at other places it doesn't. They do their agreement and it depends. It's hard to say, you know, what companies - - -

PN333

And in the past at Kempe where there have been AMWU and AWU employees at the one workplace there have been previous agreements negotiated with the AMWU and the AWU have both been parties to that agreement?---Correct.

PN334

Okay. And the June negotiations, the AMWU and the AWU have bargained with the company as a single bargaining unit?---Correct.

PN335

Okay. I put it to you that in the negotiations commenced by Gavin Penn and Leigh Diehm, Gavin Penn for the AWU and Leigh Diehm for the AMWU, that they were negotiating with Kempe as a single bargaining unit?---Yes, I would agree with that.

PN336

So any document presented by Gavin Penn can be taken as being presented by that single bargaining unit?---I wouldn't take that.

PN337

I put it to you that the deed that was presented to Kempe by Gavin Penn was presented on behalf of both the AMWU and the AWU as a single bargaining unit?---That's not true. Look, can I clarify? We were certainly operating as a single bargaining unit, but we didn't put no deed on the table and neither did Gavin Penn.

PN338

I might take you back to your previous testimony. At PN52 - - -?---I haven't got a copy of the transcript, Tony.

PN339

Okay. I'll just read it out for you then. About two thirds down PN52:

PN340

They then talked about their position on AWAs and told us that they would not be discouraging them and then to my understanding the rest of the meeting entailed the management making disparaging remarks against the shop steward at the time with work and with family problems and look, Ron Kempe was the main offender of them disparaging remarks, but that was the majority of the EBA meeting.

**** BRENDAN WHELAN XXN MR DALTON
PN341

So that paragraph is about the meeting that took place between Leigh Diehm, Gavin Penn and Ron Kempe that I just put to you before and it appears that you are quite well informed of by either Leigh Diehm or Gavin Penn of what happened at that meeting?---Yes. They were a bit outraged to be quite honest.

PN342

And I put it to you that that is the reason why the union made it clear to the company that they would not be involved in further discussions with Ron Kempe?---Okay. As I've already answered, Tony, that's not the position of the AMWU and it's not the position of Gavin Penn. I might add I would certainly be happy if the company reinstated it's position of last year, but as I say it's not in our luxury to pick their team.

PN343

Look, I'm not sure to what you're referring, but clearly Ron Kempe was involved in the initial meetings with Gavin Penn and Leigh Diehm?---Correct.

PN344

So in terms of that I don't think anything turns on what happened last year?---It doesn't appear so.

PN345

Thank you, Commissioner. Thank you, Mr Whelan.

PN346

THE SENIOR DEPUTY PRESIDENT: Mr Hale? Sit down, Mr Whelan.
Mr Hale?

<RE-EXAMINATION BY MR HALE [2.41PM]

PN347

MR HALE: Now, the bargaining period was put in place around 19 June. Is that right?---That's correct, yes.

PN348

Okay. Now, since 19 June have you had any discussions whatsoever in relation to a deed with anyone at Kempe, on the management side at least?---Yes. I had discussions with them last night. I'm just trying to clarify positions after all their correspondence. And clearly we're not pursuing a deed and we've never been pursuing a deed.

PN349

Right. Well, since your involvement, your direct involvement which was before the bargaining period was put in place, since that time has there been any claim in relation to a deed put forward or issued?---No.

PN350

Has there been any discussions in relation to the AWAs on site?---With Shed 6?

**** BRENDAN WHELAN RXN MR HALE
PN351

Yes, with Shed 6?---Look, the only real discussions we've had, I sort of had taken it as a backhanded threat, was at a meeting on 22 June where the company had put to us that if we didn't agree to separate agreements that they were going to roll out AWAs there. That's the only comments that's been made about AWAs.

PN352

So that they would roll out AWAs at shed 6, yes, shed 6 and the AWAs are currently only at Moon Street?---Yes.

PN353

Now, at the meeting on 21 June the company made a plea to be more reasonable I think was what you agreed to?---Yes.

PN354

Can you just put that in context? Why would they say can you be more reasonable?---I don't think they were happy with our claim for 10 per cent per annum in wages and it was in a context where they wanted the 36-hour week back, $182 a week pay cut, three per cent per annum, I thought that a 10 per cent pay claim per annum was a fair and reasonable thing.

PN355

Can you just explain to me why there's been so much negotiations prior to the bargaining period going in?---Yes, I'd say that's commonplace and I do a lot of agreements where there's no formal bargaining period entered into. We sit down, we negotiate. If negotiations are going along well, we don't issue bargaining periods. It's not an uncommon thing to agree with the company without bargaining periods being in place.

PN356

So does that follow that because it wasn't going anywhere, you then put in a bargaining period?---Yes, that's correct.

PN357

So the meeting of the 21st was the first meeting after the bargaining period was put in place?---Yes, that's right.

PN358

So would it be fair to say that that was all bets are off, we're back starting from scratch?---Yes, yes, certainly.

PN359

And that was when the company made the plea to be more reasonable?---Yes.

PN360

Now, since that day, have you been taking concessions off the table, putting them back on, any of that sort of behaviour?---No.

PN361

In response to the question on the 36 plus two, I think it was a question from the Senior Deputy President and you responded that you were taking notes at that time and the issue you were looking at or the next issue was the money. Could I just get you to elaborate a bit more on why you didn't get back to find out what 36 plus two means?---We'd sort of got a lot of issues on the table and I think we ran out of time would have been the main reason, but I suppose - I was taking notes because I'd sent correspondence off to the company trying to clarify their position because we've got a negotiating committee down there. We have Barry Bryant, our delegate, Leigh Thompson, the OH&S rep, Fred Planken is a boilermaker off the floor and Mick Andrews is a boilermaker off the floor. It was my understanding that the company had made some contacts of an informal, you know, chat with Fred Planken and Mick Andrews, wanted to know if 11 per cent was on the table, will that fix our issues up? When I'd heard that from the boys, you know, I started sending off correspondence to the company, trying to clarify their position, whether there was a change, so I suppose when they opened up last night, I wanted to, you know, get the correct position, where we were at and that's where I was just writing down as Roger was letting us know what their position was, so when it came to the 36 plus two hour week, I did scratch my head, but I kept on writing and the first thing we went to was the money.

**** BRENDAN WHELAN RXN MR HALE
PN362

Okay, so is the way in which the meeting progressed was that Roger would give you his response and then you would deal with each item of response?---Yes.

PN363

So it wasn't he would give you an item and you would deal with it and then you'd move on to the next item?---No. The main thing I was trying to get out of it was to clear up the point of where we were.

PN364

Where you were in relation to the money basically?---Yes, yes.

PN365

The meeting at Moon Street when Leigh Diehm and Gavin Penn are said to have attended, have there been any meetings at Moon Street since the one where it was said that Ron Kempe was making disparaging remarks about the shop steward?
---Yes, there has been, yes, on about 6 or 8 April.

PN366

Following that meeting, there was a further meeting?---Correct.

PN367

Are you aware whether there's ever been any formal single bargaining unit established at Kempe?---No, I'm not aware, I'm not aware that there's a formal single bargaining unit. I do negotiate in places where there's clauses in the agreement. Whether it's a single bargaining unit, with all those sort of - you know, the workplace together with the unions, I suppose.

PN368

I have no further questions, your Honour.

PN369

THE SENIOR DEPUTY PRESIDENT: You're excused, Mr Whelan.

<THE WITNESS WITHDREW [2.51PM]

PN370

MR HALE: I have no further witnesses, your Honour.

PN371

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hale. Mr Dalton.

PN372

MR DALTON: Thank you, your Honour. I would like to call Mr Roger Boylen, who is the HR manager at Kempe.

<ROGER BOYLEN, SWORN [2.52PM]
<EXAMINATION-IN-CHIEF BY MR DALTON

PN373

MR DALTON: Could you just state your name and address for the record, please?---Certainly. It's Roger Boylen, (address supplied).

PN374

What is your position with Kempe?---I'm the group human resources manager.

PN375

How long have you held that position?---Two years.

PN376

Are you involved in the negotiations with the AMWU and the AWU for a new agreement for Kempe?---Yes, I am.

PN377

What sort of agreements have been sought by the union?---The union have sought a union collective agreement, one at Moon Street and one at shed 6.

PN378

Have they sought any other arrangements?---No, not in the way of agreements, no.

PN379

Any other arrangements in any other form?---Other than what they're looking for in the way of a deed and the attachment which they refer to as the award addendum to the agreement.

PN380

Are you familiar with the document marked R1?---Yes, I am.

PN381

What is that document?---It's a deed of trust that was presented to me by Leigh Diehm and Gavin Penn.

PN382

Who actually presented it?---Well, the actual hand-over was by Gavin Penn, but at the time, Gavin Penn was the lead negotiator of the combined team of Gavin Penn and Leigh Diehm and I was told that Gavin was taking the lead.

PN383

So who did you understand the document was representing?---I understood the document to be representing both the AMWU and the AWU.

PN384

When was that document presented to you?---At the first meeting at shed 6.

PN385

When was that first meeting?---8 May.

PN386

Has there been much discussion around the content of the deed document?---At all meetings we had, the union refused to move on any matter unless the deed and the subsequent documentation that the union provided was the agreement. On a number of occasions, I asked them to consider the company's agreement and the response was that was the only agreement that they would agree to and the deed was part of it.

**** ROGER BOYLEN XN MR DALTON
PN387

Did you discuss specific items contained within the deed?---Yes, I did, in particular the disputes clause in which I was unwilling to participate in the clause whereby the disputes were not to be settled by the Industrial Relations Commission, but instead would be settled by the union's arbitration group.

PN388

Did you discuss any other items contained in there?---No.

PN389

In regards to the collective agreements for either Moon Street or shed 6, what sort of things were discussed?---Within the collective agreements, the union were not willing to discuss what we proposed or to look at our agreements. The unions wanted to follow a log of claims that had been presented by Barry. Those log of claims consisted of the 13 and a half per cent in actual salary increase over three years plus proportional increases in allowances, matters of that nature, which would have put the union's claim for salary increases to approximately 18.5 per cent.

PN390

Are you familiar with the document marked A6?---The one that Barry presented to us on that first meeting.

PN391

What happened in regards to that document?---We started to go down through the actual items in the document, to discuss them, but we really didn't get too far to be honest.

PN392

What specifically did you discuss? Can you remember?---The company put the position that it was seeking a 38 hour week. The employees had under their last agreement moved on 31 March from a 38 to a 36 hour week. We said that that was affecting our operation and we would like to see the 38 hour week reinstalled. The union said it would not agree to that, so we put the proposition that it be a 36 plus two which means that we would pay single time up until 38 hours and then all other time would be based upon that and we also offered that we would do all entitlements to the 38 hour week as well.

PN393

THE SENIOR DEPUTY PRESIDENT: You pay single time up until when?---To 38 hours. The union currently is on a 36 hour week, so we said that what we were seeking was to maintain that 36 hour week, but an agreement that for the first two hours after the 36 hours a week, that would be paid at single time.

PN394

How does that differ from a 38 hour week?---It doesn't.

**** ROGER BOYLEN XN MR DALTON
PN395

MR DALTON: Was that A6 log of claims document an ongoing part of the negotiations?---It was part of the negotiations even up until last evening.

PN396

Are you aware that it's been withdrawn from being part of the negotiations?
---No, I'm not.

PN397

Apart from the 36 hour week, what other things have been raised by the company as being claims in the negotiation process?---The company were seeking salary increases that were comparable to our competitors because at the moment, at the time when the negotiations commenced, we were paying higher rates, or we believe we were paying higher rates than our competitors, so therefore we sought to only have the salary increases to the same amount, which would bring us on par with our competitors.

PN398

So not the same salary increases, but increases to equate you to the same salaries?
---Yes.

PN399

What other things?---Fundamentally that was it, from memory, if I can just check my notes. We were looking for a two-year agreement and we made an offer of two per cent per annum.

PN400

THE SENIOR DEPUTY PRESIDENT: Sorry, how much per annum?---Two per cent per annum.

PN401

Two plus two?---Yes, for a two year agreement.

PN402

MR DALTON: Were any items raised regarding productivity or anything else?
---It was at the meeting in June. We were not getting anywhere with the union to move away from their demand for their agreement, their deed. At that point of time, I made the statement that I would not consider salary increases unless the union were able to demonstrate some form of increase in productivity. We had lost considerable productivity by moving from the 38 to the 36 hour week. The rostered days off were a concern to us and the bargaining point that I put down was we would like to see an increase in productivity.

PN403

What was the response?---The response was you tell us how we would - what increases in productivity you want. My response to that was I would like to work together as a team with the committee to determine the most appropriate ways that we could achieve productivity improvements.

**** ROGER BOYLEN XN MR DALTON
PN404

In regard to the negotiations where Gavin Penn and Leigh Diehm were present, how did you take the presence of those two union officials at the same meeting?
---A single bargaining unit.

PN405

Would you explain what you mean by that?---They informed me on a number of occasions that they were a team and that the agreement being negotiated was with both parties. On a number of occasions, I did raise the question of why Gavin Penn was present given that we did not have any AWU members at either Moon Street or at shed 6 and the response I was given was that they work together as a team in this bargaining, in the negotiations.

PN406

THE SENIOR DEPUTY PRESIDENT: So there's no AWU members at either site?---That's correct.

PN407

MR DALTON: Where are there AWU members?---There were AWU members some time ago who were riggers, but the company no longer employs riggers, so there are no members of the AWU.

PN408

Do you employ any AWU members?---Yes, we do, in the dross plant which is production labour which is on the Alcoa site.

PN409

THE SENIOR DEPUTY PRESIDENT: Sorry, in the?---The dross plant,
d-r-o-s-s.

PN410

On the Alcoa site?---Yes, that's correct. It's an ongoing portion of the actual smeltering process and we provide the production labour for that particular area. They are under a different agreement and their agreement is still in place.

PN411

Why do you think, then, the AWU was there if they haven't got any members?
---That was my question constantly.

PN412

Mr Penn is an organiser, is he, with the AWU?---That's correct. Whenever I asked the question why he was there, I would be told it was because they were working as a team and that's what they often did.

PN413

How many employees are potentially covered by these collective agreements?
---At Moon Street approximately 31 and at shed 6, permanents would be around the 20.

**** ROGER BOYLEN XN MR DALTON
PN414

MR DALTON: When was your last meeting with the union?---Last evening.

PN415

And what happened at that meeting?---It was very cordial. The meeting started late and I must admit I was annoyed. The meeting was scheduled to start at 2.30. At 10 to three, the union members turned up and said that they had been outside having a cigarette and if I had wanted to start the meeting on time, I should have gone and found them. After that, we put that aside and we had a very, very good meeting. I would have to say it's the best meeting we've had to date. At the meeting, Brendan started - would you like me to explain the meeting?

PN416

THE SENIOR DEPUTY PRESIDENT: Was Mr Penn at the meeting?---Sorry?

PN417

Was Mr Penn at the meeting?---No, he was an apology, as was Leigh who is the occupational health and safety representative and Mr Wayne Allen who is the management representative who is on holidays.

PN418

MR DALTON: So what sort of specific items were discussed?---Brendan asked the company to state its current position. I stated as I was the only management representative there, I stated that the company would be willing to move on the wage matter provided there was some movement demonstrated by the union. While we still preferred a two-year agreement and I explained the reasons why we wanted a two-year agreement, if it would help matters along, we would agree to the three-year agreement. We still sought the 38 hour week which is the 36 plus two and that was the discussion. Brendan put that some discussion had been held and it had been proposed an 11 per cent increase. He stated that the unions would be willing to consider around that percentage. However, the two and a half per cent between the 11 and the 13 and a half per cent would have to be made up in a single allowance payment, so in other words they still wanted their 13 and a half per cent. The question of the deed came up and Brendan denied any knowledge of the deed. The other members of the committee agreed that a deed had been placed at the first meeting. I gave Brendan - showed him a copy of the deed which he indicated he had not seen. Also, I referred him to claim 10 of the claims put by Barry Bryant in which the deed was referred to. The discussion on the deed quickly drew to a close with Brendan saying the deed is off the table, so we'll just move on.

PN419

Was there any discussion about Australian workplace agreements?---Yes. Brendan indicated that it is still the union's requirement that there be no AWAs on the shed 6 site.

**** ROGER BOYLEN XN MR DALTON
PN420

What words did he use exactly?---That we do not want any AWAs on site.

PN421

Did he propose how that agreement might be achieved, how that position might be achieved, sorry?---Yes. He referred back to the previous clause that he had given me, to consider at some two or three meetings prior.

PN422

THE SENIOR DEPUTY PRESIDENT: Do you want to tender that clause?

PN423

MR DALTON: I don't have a copy, but I am happy to tender it, your Honour?
---That's this one.

PN424

THE SENIOR DEPUTY PRESIDENT: You will need to get him to prove it.

PN425

MR DALTON: Yes. We would like to tender that, your Honour, if we could just get some copies.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes. You will need to get him to say what it is.

PN427

MR DALTON: Okay. Would you please describe that document?---Certainly. It's a clause that Brendan had suggested that the union had developed that would allow us to put into an agreement that would basically mean that we would not have AWAs on site.

PN428

Does it actually mention that you won't have AWAs on site?---No, it doesn't. It refers to agreements which would disadvantage the employees compared with the terms of that agreement that they had there.

PN429

So was it explained to you how that wording actually would work?---Not very well, but it was explained that it was a document and that it was there on agreement that we would not have AWAs.

PN430

Is the document dated?---No, it isn't.

PN431

Is the document signed?---No, it isn't.

PN432

Is the document from anybody?---No, it is not.

PN433

Is the document on letterhead?---No, it is not.

**** ROGER BOYLEN XN MR DALTON
PN434

I would like to tender that document, your Honour.

PN435

THE SENIOR DEPUTY PRESIDENT: I will mark the document which is a paragraph that starts the company will not have an industrial instrument.

EXHIBIT #R2 AWA CLAUSE DOCUMENT

PN436

MR DALTON: Mr Boylen, I might just take you back to the meeting that I believe occurred at the union's offices on 21 June 2006. Do you remember that meeting?---Yes, very well.

PN437

Would you like to describe that meeting for me?---The meeting commenced at 2.30 and we arrived at 2.30 and some comments were made by the union group that we were late and I believe that they had commenced their meeting at two o'clock. On arrival, we started to try and discuss the meeting and we were discussing where we were going to go with the meeting and Fred, one of the committee, had been looking at could we look at each of the items in respect - which were put in the bargaining document and we could go down and discuss each of those. At that, Wayne Allen again reiterated that the company wanted to pursue a two-year agreement because our contract with Alcoa ceases in two years or in 18 months and the company was reluctant to go for an agreement greater than the two years because of that reason. We also put it to the union that we would appreciate a softer line on the negotiations based upon the fact that we had explained to them that we currently were higher in our charge out rates and our wages than our competitors and that this was putting us at a major disadvantage. We also explained to the committee at that stage that Alcoa had notified us of a 30 per cent reduction in requirement of work and that was to be phased in and on that particular case, we indicated that we were concerned that unless we had work from other areas, we would not be able to maintain the number of staff that we had, so therefore we asked the union if they would take a slightly more moderate line on their demands.

PN438

What was their response?---Mr Whelan said yes and offered - said that the union now wanted a 10 per cent per year salary increase instead of the 13.5 per cent over the three years.

PN439

And what was your response to that?---My response to that was no and that we would not be interested in that. I then asked the members of the committee had they read the agreement that I had proposed. They said no and I asked members of the committee how they intended to negotiate on the fact that they had not read the agreement or given consideration to it and the response I received was because we want to pursue the union agreement, not the company's.

**** ROGER BOYLEN XN MR DALTON
PN440

What happened then?---I left, myself and Wayne Allen left.

PN441

Are you aware of any concessions that the union has made in regard to claims the company has put?---The union has indicated that they are willing to continue with the two agreements, one for the workshop, one for the site, but that is all. That's, by the way, not a concession because we already have that in place. They want the workshop to operate at the site rates.

PN442

In regards to the documents tendered by the union, the document marked A2 which is dated 23 June 2006, when did you receive that document?---At five o'clock in the evening.

PN443

And do you remember what day?---It was Monday.

PN444

THE SENIOR DEPUTY PRESIDENT: Sorry, which document is this?

PN445

MR DALTON: A2 I think it is?---Sorry, received five pm on the 23rd.

PN446

Actually, I think the 23rd is a Friday?---That could be correct.

PN447

The document marked A3 is the next one, I think that's dated the 26th?---Yes.

PN448

That's a letter from the AMWU again?---Yes.

PN449

The 26th being a Monday, what time did you receive that one?---9 am.

PN450

And when did you respond to the union?---I responded to the union that day I believe it was - sorry, the 28th.

PN451

The 28th?---Yes.

PN452

Which was the Wednesday?---Yes. On the Tuesday, I was in Tasmania, so I was unable to respond.

PN453

Was it your intention to delay responding to the union?---No, not at all. I did not have the opportunity to respond to the first one because it was the weekend and the second one I received, but I was already involved in other issues.

PN454

Now, in regards to the document marked A5, can you explain that document to me?---Certainly. I had had a number of phone calls and conversations with Brendan. They had been followed up by the letters or faxes that have already been presented. On that basis, I made this response. The response was in respect to the question asking about the negotiation or the renegotiation of the current enterprise agreement at Moon Street. Given that it had been indicated by Mr Penn and Mr Diehm that they were not willing to negotiate with Ron Kempe and following my conversation with Brendan in which Brendan had stated he did not desire Ron Kempe to be involved in any discussions and also the fact that the union were asking for the same conditions as had been asked for out at shed 6 which included the deed and the union's attached award, I said I didn't think it was any point in negotiating.

**** ROGER BOYLEN XN MR DALTON
PN455

Can you explain to the Commission the issues surrounding Mr Kempe?
---Mr Kempe is the manager who is - Mr Kempe is a member of the Kempe family who own Kempe. He is a member of the board of the Kempe group of companies and he is the manager who is responsible for the manufacturing division which is the Moon Street operation. Reporting to him is Mr Rod Vincent who is the workshop manager.

PN456

THE SENIOR DEPUTY PRESIDENT: How many employees does the Kempe group have?---Over 1000.

PN457

Are they all down at Geelong?---No. We're spread worldwide, operating in something like about seven or eight countries. We have employees in every state of Australia. We have employees in - over 400 employees in Mozambique, Dubai, Bahrain, Oman, China and India and we're currently working in Canada, Iceland, Norway and about to commence operations in Venezuela and Argentina.

PN458

Do they do the same sort of work worldwide, the employees?---No.

PN459

So, for example, Mozambique, what are they doing?---Mozambique is similar work to what they do at shed 6, that is in Mozambique, the smelter which is owned and operated by BHP, we provide all the maintenance services to that smelter.

PN460

And Iceland?---Iceland, we're building a smelter for the Alcoa organisation subcontracting for Bectel.

PN461

Is it fair to describe Kempe as an organisation - maybe it's not, but I'll ask it, anyway, as an organisation which essentially provides contract labour?---No, no, not really. That's a difficult question to answer in a straight sense because certain parts of our business, yes, we do provide contract labour, but in the case of shed 6, we're not providing contract labour, we're providing maintenance services which is the difference. However, at Alcoa, we are providing production labour which is a labour hire type arrangement.

PN462

Thank you.

PN463

MR DALTON: Are you aware that the union have a problem with Mr Kempe?
---Yes, I am.

**** ROGER BOYLEN XN MR DALTON
PN464

What is the genesis of that problem as far as you're aware?---When I joined the company, there was considerable dispute between the company and the union regarding what was known as C classifications. The issue had become - communication had broken down. Both Rod Vincent and Ron Kempe were no longer communicating effectively with the union and vice versa, hence I was brought in as part of the management team to resolve those issues. There has been an ongoing conflict between the union and Kempe and this has been probably on the boil for about the past five or six years.

PN465

In regards to the negotiation for these agreements, has Mr Kempe been involved in any meetings?---Mr Kempe was involved in one meeting.

PN466

What happened at that meeting?---What we had decided to do, to be fair to employees, was that we organised a meeting by which we would provide the staff with information on the changes to the legislation, so we invited the union and initially it was going to be Gary Robb and Gavin Penn and we invited them to join us to present information to the workforce about the types of agreements that were available for negotiation. At Moon Street on that night of the negotiations,
Mr Leigh Diehm turned up in Mr Robb's place. We presented the information about the types of agreements that were available. Mr Penn and Mr Diehm then requested a meeting with the members on their own, because they had indicated that there was questions that would like to be asked, but they didn't want management around to ask them. We agreed to that. Mr Penn and Mr Diehm came back and said that a vote had been taken and that the people at Moon Street had elected to go with a collective union agreement. At that meeting, Mr Kempe drew some concerns in respect to the shop steward who was there at Moon Street. His concerns he raised was that the shop steward was not reporting information back to the members effectively and that there had been a number of incidents whereby problems had been caused because of his lack of effective communication skills. At that stage, Mr Penn got very angry and it ended up in a screaming match between Mr Kempe and Mr Penn. Mr Diehm and Mr Penn walked out of the meeting. Myself and Mr Vincent went out to talk to them and Mr Penn said we will not be involved in any negotiations that he, referring to Ron Kempe, is involved in.

PN467

Has anyone else ever made any comments about being involved with Mr Kempe in negotiations?---Mr Penn reaffirmed his position the following evening when we did the same process down at shed 6 and he stated that in front of Mr Ken Beatty and Mr Wayne Allen and said that he would not be willing to negotiate if Ron Kempe was involved. Mr Whelan has made comments that he would prefer Mr Ron Kempe not to be involved in the negotiations.

**** ROGER BOYLEN XN MR DALTON
PN468

Has it been put any stronger than that?---It was put in stronger terms, but I'd have to say that's what the emphasis was.

PN469

In regards to Moon Street, what's happened in regards to any sort of agreements over the last couple of months at Moon Street?---Following the union's presentation and subsequent meeting with the members on their own, a number of employees approached management, seeking further clarification on what AWAs were and how they would be implemented. The company made an offer to the workshop employees that they could form a committee, a shop floor committee and that shop floor committee would investigate the various agreements. At the conclusion of that, the shop floor committee came up with the basis that they wanted to implement AWAs. They then formed - produced the AWAs which they presented to management. Management made some adjustments to those AWAs and then any member of staff who approached management in respect to AWAs were granted the AWAs.

PN470

There have been some AWAs?---Yes, there have been AWAs.

PN471

Has the union voiced any opinions about those AWAs?---Yes. Mr Whelan has in our discussions indicated that he is not happy about the fact, or the union is not happy with the fact that we have AWAs at Moon Street and would prefer not to have them at shed 6.

PN472

Has there been any impact of linkage on other agreements with regards to AWAs and the union?---The other issue was that I received a phone call from Wayne Allen telling me that the union had been to Alcoa and had refused to - had stated to Alcoa that they refused to allow a Kempe employee on site because of the fact that they believed he was under an AWA. I did approach this issue with Mr Whelan and Mr Whelan said that it was he who had the discussion with Ms Linda Craven and he had said that they did not want people with AWAs on site. It was basically those people who are under a union agreement would be working.

PN473

Did the person get on site?---The person was not under an AWA at the time and, yes, they were allowed on site.

PN474

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

PN475

THE SENIOR DEPUTY PRESIDENT: Mr Hale.

**** ROGER BOYLEN XN MR DALTON

<CROSS-EXAMINATION BY MR HALE [3.31PM]

PN476

MR HALE: With the current agreements, particularly the agreement at shed 6, does it also apply to casuals?---I believe that agreement does apply to casuals, yes.

PN477

Do you also employ some riggers from time to time as casuals or casual riggers?
---In the past we have, but we do not at the present moment in time and it's not our intention to in the future.

PN478

So it's not your intention to employ riggers?---That's correct.

PN479

And did you indicate that to Mr Penn?---Yes.

PN480

You did indicate that to Mr Penn?---Yes, I did.

PN481

That it wasn't your intention to employ riggers?---That's correct.

PN482

Now, you told us that the union introduced themselves as a single bargaining unit. Did you do that?---That's correct. They were working as a team I believe my correct words were.

PN483

Were you using the rigging yesterday?---I'm afraid being in my position, I'm not at shed 6, so if a person was brought in on contract yesterday to work as a rigger or employed through a contractor to do rigging work, that could well be the case is what has happened down there. Personally speaking, I could not say yes or no. I would have to ring shed 6 and find out, but it's my understanding that we have a relationship with a contractor and where we need a rigger, we will bring it in through the contractor.

PN484

Would you know whether it was a casual?---I've already indicated I would not know. I do not work at shed 6. I work in the city. If you wish me to ring that particular area, I'm more than pleased to, but it is my understanding and the information that I have been given is that any riggers that will be brought in to work will be through a contractor. Now, I will have to admit that Mr Allen who is the manager there went on holiday yesterday and a subsequent manager has been put there. Now, if he has brought in a rigger and not followed the directions of the company, it's an issue I'll have to take up with him when I return to the company.

PN485

Okay, so you came in, they introduced themselves as a team and they told you that Gavin was taking the lead?---Gavin said that, yes.

**** ROGER BOYLEN XXN MR HALE
PN486

Gavin said that he was taking the lead?---That's correct. Gavin said that he would be taking the lead because Leigh hadn't got as much experience in negotiations as him.

PN487

So is that usual practice when you go into negotiations?---Yes, it is.

PN488

How long have you been involved in industrial relations?---Thirty-two years and I've negotiated some 20-odd agreements and on each case, where there have been different unions, there has been a union member who takes the lead as the negotiator.

PN489

On each occasion?---On every occasion.

PN490

On every occasion in 32 years?---Yes, that's correct.

PN491

And is that something you insist on?---That isn't my requirement.

PN492

So in 32 years, on every occasion, on every set of negotiations with multiple unions, they've always come in and introduced one of them in the lead?---That's correct.

PN493

Okay, that's your evidence. Now, did Gavin purport to be representing the AMWU at those meetings?---He said that the AWU and - the Metals and the Workers' Unions were working together as a team and that basically they were interchangeable, so if Gavin wasn't there, Leigh would do the negotiations and if Leigh wasn't there, then Gavin would do the negotiations.

PN494

Okay, so did Leigh say anything about this?---Leigh agreed.

PN495

Leigh agreed as well, did he?---Yes.

PN496

So then when Gavin handed over R1, did he say anything?---I'm not sure what your question is.

PN497

Well, did he say anything? Did he just throw it on the table? Did he say this is what we want?---Yes, exactly.

PN498

Okay, he said this is what we want?---Yes, Gavin indicated that that was the union's requirements. He presented that. Leigh presented the second document which was the other document which you've already presented. I presented to them the company's agreement that we wanted and then we commenced from that point.

**** ROGER BOYLEN XXN MR HALE
PN499

Gavin gave you this and he said that's what the unions want?---This is our requirement for negotiation. He did not state which union. He indicated that it was both unions.

PN500

And then Leigh gave you another document I think you said?---Leigh gave me the other document, yes.

PN501

Okay, so what you're saying is that Gavin specifically indicated that this document was to cover both unions?---I did not say that.

PN502

So what do you say?---I am saying that both members of that team presented me with documents which I assumed was from both unions because they were working as a single bargaining unit.

PN503

So how does that fit with Gavin taking the lead?---In a single bargaining unit, it is the norm that one union will act as the lead negotiator and that is normally decided between them and then the other person will negotiate or support the negotiations. In cases where I've had five unions, that's how it's operated.

PN504

The question is whose hand-writing is on this deed?---Mine.

PN505

That's your hand-writing, is it? So did you negotiate or discuss the contents of this deed?---The deed was presented to me, I read through it, I made comments on it and I said that we would not be wanting to sign it.

PN506

So you didn't negotiate in relation to it, but things like MTFU, question mark, did you go away and read the deed and come back and seek clarification?---No, because I went to AIG and I asked AIG to clarify those matters for me.

PN507

Okay, so did the AIG make these notes on it?---I've already stated that I made the notes on it.

PN508

Okay, so you made the notes and you took it away to the AIG? Am I hearing you correctly?---I've stated that, yes.

PN509

Shop stewards, you've put the same in brackets, is it?---I'm afraid I can't see the document and I don't know what I've written on there.

PN510

Have we got a spare copy for the witness?

**** ROGER BOYLEN XXN MR HALE
PN511

THE SENIOR DEPUTY PRESIDENT: What exhibit number is it again?

PN512

MR HALE: R1, your Honour?---Sorry, so which one are you referring to?

PN513

R1, we'll start with the first one where it's got the contractors and you've got same as current EBA in brackets written there?---Yes.

PN514

Payroll deduction, union dues, where it says same, is that a continuation of those same as current EBA?---Yes, that's correct.

PN515

Right of entry, same?---Yes.

PN516

Disputes procedure, same?---Disputes procedure, other than the MTFU disputes clause is the same. However, this clause here, there is a disputes procedure. My comment there referred to that in the current agreement there is a disputes procedure. My circle around the MTFU and the question mark was who that disputes board was. When I was informed they were members of - previous members of the union and they were the union's preferred arbitrators, that was the question mark that I put there as to who they were.

PN517

Who informed you of that?---Is that incorrect?

PN518

Very much. Who informed you of it?---Sorry?

PN519

The question was who informed you that?---AIG. The shop stewards, the brackets there is the same requirements as in the previous agreement and the last one which is 9, illegality, et cetera, I put a question mark as I wasn't sure what that particularly referred to.

PN520

So then you went and got advice from the AIG?---Yes.

PN521

And that advice was that you shouldn't negotiate in relation to the deed?---That's correct.

PN522

So at what meeting did you advise the union that you wouldn't negotiate in relation to a deed?---The next meeting.

PN523

So the very next meeting, you advised the union?---Yes.

**** ROGER BOYLEN XXN MR HALE
PN524

So if we can - first of all, if we can go through the structure of those meetings?
---At that meeting I stated that while the company was willing to negotiate on allowable matters, it was not willing to negotiate on non-allowable matters, prohibited content or any deeds.

PN525

At which meeting was that?---That was the second meeting.

PN526

I will go back and ask the questions. Well, you've read the transcript of Brendan Whelan in relation to this?---Yes.

PN527

Do you disagree that any of those meetings took place?---No.

PN528

Do you disagree with his reports in relation to what was discussed at each meeting, there might be some that was left out, but generally what was discussed?---Yes, I would agree that Brendan certainly gave his version of what occurred at the meetings which he was at.

PN529

Right, so it might not have been that his perspective was the same as your perspective, but you were both talking about the same thing, so if he said we discussed the one agreement or two agreements, you'd concur that that was the point of discussion?---I would have to read my notes and you'd have to refer to specific meetings so that I could agree or not agree.

PN530

You would have done that when you were considering the transcript, wouldn't you?---No. Why?

PN531

Because presumably you were trying to put something together to discredit his witness evidence. Didn't you check your notes against the transcript?---Yes, I did.

PN532

So you've already done that exercise, haven't you?---I'm sorry, if you're asking me a question, please ask me the question. At the moment, I really am confused about what it is you're trying to ask me.

PN533

Okay, I asked you whether you compared your notes with the transcript?---Yes.

PN534

You've just answered me yes. Okay. Were there any parts in that transcript where you say that in the timing of the meetings, Brendan Whelan got it wrong?
---No.

PN535

So with the deed, I think you said that as late as last night there were discussions in relation to the deed?---Correct.

**** ROGER BOYLEN XXN MR HALE
PN536

Were those discussions Brendan Whelan trying to get you to agree to the deed?
---Not last night, no.

PN537

Has there been any discussions with Brendan Whelan trying to get you to agree to the deed since the bargaining period was put in place?---Last night was the only meeting that's been held since the bargaining period came into place.

PN538

What about the one on the 21st?---The bargaining period did not come into place until the 27th.

PN539

No, the seven days after the bargaining period was put in, but I'm talking about when the bargaining period was put in?---Sorry, you just said the same thing.

PN540

No, the bargaining period is put in and seven days later, the bargaining period took effect?---That's correct. The bargaining period was lodged and that bargaining period was lodged on the 19th, I believe.

PN541

Well, if it's confusing you, I'll ask you at any time after the 19th did Brendan Whelan pursue with you the deed?---21 June it was still indicated that the union still wanted the deed, the award amendments document which has already been presented and that is what the union wanted to negotiate.

PN542

And that was 21 June?---Correct.

PN543

Who was there?---At that meeting was Barry, Mick, Fred, Brendan, myself and Wayne Allen.

PN544

So you say at that meeting Brendan Whelan asked you for a deed?---Brendan Whelan asked me for the document, for the deed and the attached document which was referred to as the award amendments, so I indicated to Mr Whelan at that meeting that the company would not negotiate on matters such as a deed or other matters that were non-allowable or prohibited and at that stage, I believe Mr Whelan then upped the salary increase from 13 and a half for three years, he increased that up to 10 per cent for a year on that basis.

PN545

Are you referring to contemporaneous notes there?---I'm referring to notes that I took, yes.

PN546

At that time?---Yes.

PN547

Because I think you gave evidence that that meeting didn't last very long?---No, I did not give evidence on that. I believe Mr Whelan gave evidence that it was for 10 minutes.

**** ROGER BOYLEN XXN MR HALE
PN548

So how long do you say that meeting went?---The meeting, I don't really recall, but I would say that it went for over a half an hour.

PN549

Over a half an hour? Okay, so do you agree that it went through - that Brendan Whelan went through the bargaining period notice, the claims in that bargaining period notice?---No, he did not.

PN550

He did not?---No. We were discussing the claims that had been put by Mr Bryant.

PN551

So you say that you were working off a completely different document?---No, I'm saying that the document that was presented onto the table for discussion was the document which Mr Bryant produced.

PN552

This is on the 21st?---That's correct.

PN553

So that was the meeting at the union's offices on 21 June 2006, is that right?
---That's correct.

PN554

Where you say you arrived at 2.30 and the union made comments that you were late?---That's correct.

PN555

And that they had been there from two o'clock. You then said you started trying to discuss where you were going with the meeting, is that correct?---I don't recall saying - - -

PN556

The transcript will show it and Wayne wanted a two-year agreement because the contract ceases in 18 months?---Wayne stated that it was the company's position that we required an agreement for two years because the contract with Alcoa concluded after 18 months. Brendan's response to that was that, well, if it finishes, it doesn't matter, anyway, because then you can just finish this agreement, it doesn't matter whether it's a two or a three-year agreement.

PN557

And that's true, isn't it?---Well, that's perfectly true.

PN558

So you then said you would appreciate a softer line because you were at a major disadvantage with other companies putting in tenders at Alcoa?---And other organisations.

PN559

To which you said Brendan responded - you also pointed out that Alcoa had notified of a phase-in of a 30 per cent reduction in the work and that was where you asked for the concession?---I believe what I said was that Mr Allen had in his - when he discussed it with the committee, he had explained why we needed the - why we were looking for the two-year agreement. He also went on to explain the fact that Alcoa had said to him they were going to be looking for a 30 per cent reduction in requirements of the type of work that we were doing for Alcoa, so therefore we were asking for the union to consider a lower salary increase or to bargain on the salary increase based on the fact that if we maintained the site agreement rate, we would not be competitive to workshops and we would not win other work.

**** ROGER BOYLEN XXN MR HALE
PN560

Did it surprise you that the union didn't want to pattern bargain with you?---I'm sorry, where does pattern bargaining come in?

PN561

Weren't you trying to achieve the same that other employers had achieved in other areas?---No, I was not looking for the same rate increase as per the union, where the union had said that they had got the 13-1/2 per cent for other companies such as Downer, Alcoa, et cetera. My conversation with the union very clearly was that we were looking to achieve a salary increase that would allow us to be competitive with our main rivals. I do not consider that to be pattern bargaining.

PN562

So you didn't raise the issue in relation to comparative wage justice, for want of another word, with the other companies operating in the same area as you are?
---No, I did not. I did raise the issue that I had done research, I had looked into what the other companies were paying and I did make a statement that we were currently paying higher than those companies and that for us to be competitive, we would have to come in a rate that was comparable or lower to them.

PN563

When the union said that they now wanted the 10 per cent which arose out of the bargaining period notice, didn't it?---No.

PN564

You're saying it's not in the bargaining period notice?---At that particular time and I'll have to explain it, the union had sent me bargaining notices and those bargaining notices were incorrect in that the union had put on their bargaining notices the wrong addresses, the wrong companies and had referred to the wrong individuals involved in the bargaining. I had gone back to the union and notified the union that they had made an error and suggested to the union that if they wanted to put in their bargaining period, then they would have to submit a new application to which I got notification that the union had done that. I received their information that day as to the bargaining requirements or the claims that had been put and when I arrived at the meeting that afternoon, Mr Bryant's log of claims was still on the table and that is what we were working to.

PN565

So you dragged out Mr Bryant's log of claims?---I did not drag out Mr Bryant's - Mr Bryant had it on the table at the time.

PN566

So literally had it on the table?---Yes, that's right.

PN567

So you say with the - when he said 10 per cent, after you had asked him to take a softer line, you say that you didn't pack up and walk about then?---At that point of time, no, I didn't. I did pack up and walk out some five minutes or so after that.

**** ROGER BOYLEN XXN MR HALE
PN568

Okay, so you didn't find that insulting and you found something later on more insulting, was it?---No. The reason I left was because there was no point in continuing in the negotiations because of the line that the union had taken which was we want a 10 per cent salary increase, plus we want our agreement and our deed and my answer to that was there is no point in continuing negotiations and I left.

PN569

In relation to Mr Kempe, did you have a meeting with Mr Whelan in relation to shed 6 after you say that Mr Penn and Mr Diehm had told you that they wouldn't take part in the negotiations if Mr Kempe was there?---I've had several meetings with Mr Whelan since that time.

PN570

Okay, so you've had meetings in relation to Moon Street since that time?---Yes.

PN571

Why then do you try and use that as an excuse for why you wrote a letter to Mr Whelan saying that you weren't prepared to have any further negotiations in relation to Moon Street?---As I've stated, the situation with Moon Street was that the union was still seeking their deed, they were still seeking their agreement, they were still seeking the 13 and a half per cent, they were still seeking exactly the same bargaining points as what had been put or given to shed 6 and based upon all of that and including the fact that the union had said they were not willing to negotiate with Mr Kempe was the reason why I wrote that letter.

PN572

But you didn't put any of that in the letter?---No, I did not.

PN573

So unless you've just made it up recently, why wouldn't you have put that in that letter?---Because it had already been discussed in a phone call with Mr Whelan before that.

PN574

So by this stage, you and Mr Whelan were playing a game with each other of trying to build up evidence for this hearing and you didn't take the opportunity?
---From memory, I don't recall that I lodged the application for this hearing. I believe that it was the union who was the one who made the application for this hearing, so I completely reject your last statement.

PN575

You completely reject - you didn't know that this was coming at the time of those last letters being sent?---I had not received any formal notification that this hearing was going to be held.

**** ROGER BOYLEN XXN MR HALE
PN576

Yes, that's different to the question I asked you, wasn't it?---And I've given you the answer.

PN577

You gave me a dishonest answer, didn't you? You sent a letter on 11 July 2006?
---That's correct.

PN578

And you knew that this was on, you knew that this hearing was on. We had already been in here on 5 July?---I'm sorry, but I think if you go back to what your question was, your question was that I was building up a case to bring into this Commission. I believe your term was that you and Mr Whelan were playing games and building up a case from that day to bring into this Commission for this hearing.

PN579

Yes?---And my response to you is, was and is at the time Mr Whelan and I had conversations, I had not been involved in organising this application or case
and - - -

PN580

I didn't - - -?---I am sorry, that is what you asked and on top of that, I also indicated to you very clearly that I was not involved in putting the application. Now, the application was not put until the start of the week - I believe it's 3 July, at which time I was in Bali.

PN581

I didn't ask you whether in fact you were putting the application. I am well aware of who put in the application. What I asked you was in relation to those last letters, you were aware that this hearing was on?---That's correct. On 11 July, I was aware that these hearings were on.

PN582

Okay, but that isn't what you said in relation to the first time I asked you the question?---No, I'm afraid your question was not very clear and if I answered incorrectly, I do apologise.

PN583

On 11 July, you say:

PN584

In respect to the final matter referred to in your letter 10 July in which you refer to the company's knowledge of the employees' rejection of the company's offer and a vote to seek protected action for 29 June 2006, the company wishes to state that it is not in possession of such information and is unaware of the union's intent.

PN585

On 11 July, you're telling us in writing that you were unaware that we would be seeking protected industrial action?---That is not - I would need to have a look at the copy of - - -

**** ROGER BOYLEN XXN MR HALE
PN586

A10 it is?---A10, and if you wouldn't mind, if I could please have a copy of the letter that was the one previous to that and the date of that letter.

PN587

Well, I am afraid I am asking the questions and I am asking you - - -?---And you are asking for a response and the correct response is on 10 July, Mr Whelan wrote to me stating that - regarding the matter. I responded to him and that was my response to his letter, 10 July.

PN588

Yes?---And my response to his letter on 10 July, he was referring to a meeting and that at the meeting:

PN589

Furthermore, as you are aware, the employees have rejected the company's offer and have voted to seek industrial action on 29 June.

PN590

And my response was I was not aware of the fact that the employees were seeking protected action to take action on 29 June and I stand by that.

PN591

Of course they weren't?---Well, I'm sorry, I've just answered your question and you said that I was telling the untruths.

PN592

Considering this was sent on 10 July, what, did you think they were going to take it on 29 June next year?---No, the question clearly asked in this letter is:

PN593

Furthermore, as you are aware -

PN594

I will repeat that, as you are aware, the employees have rejected the company's offer. I was not aware that the employees had rejected the company's offer and have voted to seek protected action on 29 June. Now, I do repeat, I was out of the country for the week prior to that. Therefore, when I arrived back in and the 10th I believe you will find is a Monday, when I arrived back in, I was not aware that the company's offer had been rejected or that protected action had been sought for 29 June. I was aware that the union had made an application for a secret ballot.

PN595

Do you deny that this letter was sent on Tuesday, 11 July 2006?---I do not deny it at all. I have confirmed that I sent this letter.

PN596

All we needed was a yes or no. Now, in it you say that:

PN597

The company wishes to state that it's not in possession of such information and is unaware of the union's intent.

**** ROGER BOYLEN XXN MR HALE
PN598

?---That's correct.

PN599

On 11 July, you're saying that you were unaware that they were seeking protected industrial action?---No, I'm not saying that at all and I have already stated what that letter refers to. The letter refers to the previous letter by Mr Whelan which was written on the 10th and it refers to Mr Whelan's last paragraph which refers to:

PN600

Furthermore, as you are aware, the employees have rejected the company's offer and have voted to seek protected action on 29 June.

PN601

I wrote back to say I was not aware of that and if he had correspondence regarding that matter, would he please provide me with that correspondence for my records. To date, I have not received any correspondence.

PN602

So you weren't playing games?---No. It's not in my nature.

PN603

Why didn't you put the information in relation to you have refused to have negotiations with Mr Kempe, there you have negotiations?---Why would I want to put that?

PN604

Because that's what you're putting to the Commission. Isn't that what you're putting to the Commission today?---No. That is part of the reason.

PN605

So that's part of the reason, so that if Mr Kempe is allowed back in the negotiations, you retract that and you're quite prepared to negotiate at Moon Street? Is that what you're saying?---I'm sorry, I don't understand your line of questioning. I'm having difficulty with it. You're asking me a question of why I made a particular statement in a letter. I've answered you that my statement was in reference to a previous letter which I've done. Would you please explain your questioning because I don't understand it?

PN606

Well, maybe if you answered it?---I would, if I understood what the question was.

PN607

Well, the question was that in relation to Mr Kempe - well, I will go back a step. Are you putting to the Commission that the reason for the negotiations ceasing at Moon Street was because Leigh Diehm and Gavin Penn told you that they wouldn't have negotiations in relation to Moon Street if Mr Kempe was there?
---As I have stated a number of times now, the reason why I gave that response was because the union had required the negotiations to be based on the union's agreement, the deed and the fact that Mr Kempe was not to be involved.

**** ROGER BOYLEN XXN MR HALE
PN608

Okay, but you didn't bother putting that in the letter?---I saw no point in putting that into the letter. I don't see what relevance it had to the letter that Mr Whelan had written to me.

PN609

What you're saying today is that that was one of the reasons for why the negotiations were not taking place?---And I believe that if you go to my next correspondence in response to Mr Whelan's, you will see that I said that I am pleased that the union has rescinded its position on Ron Kempe's involvement in the negotiations, so I believe that while I did not put it into this letter, I mean, I could have written a 50 page letter in response to you on this basis, however, I felt it as unnecessary. I responded to the letter that had been presented to me and I responded to the points that had been raised in that letter on the 10th. I believe you will also see in that letter on the 11th that I once again stated:

PN610

I wish to reiterate the company's position that the company wants to negotiate in good faith on local enterprise issues.

PN611

You say from the first meeting all the way through at all meetings, the union refused to move on any matter unless the deed on the other was agreed?---Correct.

PN612

So that's what you said. In all meetings?---Correct.

PN613

And you stand by that?---Yes.

PN614

So there hasn't been any movement whatsoever on the part of the union at any meeting?---The union have moved on the ground that they are willing to consider the two-year agreement, then they rescinded that and said they wanted a three-year agreement. The union have stated that they are willing to negotiate or, sorry, they are willing to consider productivity improvements as part of the agreement.

PN615

That's a movement, isn't it?---Sorry, obviously my view of what the term movement is must be different to yours. In my particular point of view, when somebody said I am willing to discuss this, it doesn't mean to say they've moved on it. It doesn't mean to say that they've agreed that we will have that in it. They have simply said that they are willing to enter into further discussions on it, so it is a slight movement, yes.

PN616

Yes, it is a movement?---A slight movement, yes.

PN617

Not a move as far as you wanted, but it was a movement, so the union wasn't saying unless you agreed to the deed and the attachment, we're not going to move on anything, were they?---Yes.

**** ROGER BOYLEN XXN MR HALE
PN618

Well, they moved on it?---Well, your interpretation of the term movement and my interpretation of the term movement, my interpretation of the term movement is where the union says we will accept productivity improvements as part of this agreement. What the union said was we are willing to discuss productivity improvements. Therefore, in my opinion, no, there was not a movement.

PN619

My understanding of the evidence you gave was that the union said tell us what improvements you want and you replied we want to work together co-operatively, to work out how to improve productivity?---That's correct.

PN620

Now, surely that's a movement. Surely they're saying to you you tell us what you want. You can't expect them to say, well, we'll do it without at least you explaining what it was that you wanted them to do?---And as I said, I made the approach to the union that I would like to work with the committee to determine what those productivity improvements would be. However, at this point of time, no agreement has been made by the union for those productivity improvements to be included into the agreement. It is more than possible that we could go through the discussion of productivity improvements simply to arrive at a point where the union says we do not agree and they take the matter off the table.

PN621

And, of course, that depends on what productivity improvements you're seeking. You'll probably see the return of the 38-hour week as being a productivity improvement, is it?---Yes, I would.

PN622

You would think that it would be unreasonable of the union to explore that with you and then say no way?---I'm not saying that's unreasonable for the union to do it, but what I am saying in response to your initial question regarding movement is that in my opinion, movement only occurs when agreement has been reached, not where the union have said we are willing to discuss this matter, but at the end of the day, if we don't like it, we will take it off the table. That in my opinion does not constitute movement.

PN623

So you can never have movement in negotiations unless there's agreement reached?---Agreement in principle, yes.

PN624

So you can never have any movement unless that's reached?---In principle.

PN625

That's just a nonsense, I'm afraid. Now, in relation to the document that you presented and it's the attachment - I am trying to find one that's marked. It's A8 where you put out this document as a negotiating document?---Yes.

PN626

In this document, did you just take what was in the previous agreement and put it into two columns and go from there?---No. I believe that if you have a look at it closely, you will see that it is the previous agreement with non-allowable matters withdrawn and therefore the items that were there for discussion were those items that were allowed to be discussed under the terms of the legislation.

**** ROGER BOYLEN XXN MR HALE
PN627

Well, if I go to page 2, renegotiation of the agreement, down the bottom, that might have a few difficulties going into an agreement, wouldn't it?---If that's the case, then I would have expected that through the process, we would have picked that up and that would have been taken out of the final document.

PN628

But would you have been in here today arguing that we were seeking to have prohibited content put in the agreement?---This agreement was a draft document by which the parties were offered the opportunity to use the document for the purpose of negotiation and discussion. It is certainly not the final document, it is not the document that was to be presented as a final agreement. It was a working document.

PN629

Okay, so what about the log of claims that was put forward by the shop steward?
---That was a working document.

PN630

And you pointed out to them that that log of claims couldn't be pursued because of that clause seeking to have a disputes procedure put in the deed, is that right?
---Yes.

PN631

So why would have that been prohibited content?---It was not prohibited content. The matter was discussed because the union's requirement was that it goes into a deed. Secondly, the union wanted an alternate dispute procedure to that which the company wanted.

PN632

But isn't that a bargaining tool?---Yes, but it doesn't mean to say that the company has to agree to it.

PN633

But why is settlement of disputes procedure been put in a deed of - - -?---I did not put it in the deed.

PN634

Sorry?---I did not put it into a deed.

PN635

No, but why is prohibited content been put into - not prohibited content. Why is a disputes, an alternative disputes procedure been put in a deed, prohibited content? Surely you could have put that disputes procedure in - - -

PN636

MR DALTON: Your Honour, Mr Boylen can't answer a question of why a thing is in a union prepared document. It's up to them to say why they've put something in the deed, not Roger Boylen. He's got no idea what a - - -

**** ROGER BOYLEN XXN MR HALE
PN637

THE SENIOR DEPUTY PRESIDENT: Ask the question.

PN638

MR HALE: Why is that being in the log of claims, why is that prohibited content?---I haven't stated it was prohibited content.

PN639

So you didn't raise that in the negotiations?---I raised it as a fact that we would not agree to a deed. I also raised it on the fact that I would not agree to a dispute procedure that was other than the dispute procedure which used the Australian Industrial Relations Commission as the arbitrator.

PN640

But that wasn't something that couldn't go in the agreement?---The union was quite adamant that it wanted its own dispute procedure and that was part of the negotiation. However, the point that was being raised there was in relationship to the deed and our argument was that while it was permissible to go into an agreement, we would not be signing a deed based upon the advice that we had received from AIG.

PN641

Okay, so that it was quite reasonable that at some stage in negotiations that that alternative disputes procedure could be pursued in the agreement and put in the agreement?---I fail to see your point.

PN642

Well, the making of a deed to put in something that was non-prohibited content is immaterial, isn't it? That claim, if it could just as easily go in your agreement, can be dealt with in those negotiations, can't it?---I still fail to understand the point you're trying to raise.

PN643

Well, you're disputing whether the union can have a deed with you in relation to anything?---I'm not disputing the fact that the union may wish or make statement or require a deed. What I am saying is that I will not enter into a deed.

PN644

In relation to the AWAs, isn't it true you were actually using the AWAs as a bargaining chip?---No.

PN645

Weren't you saying that unless we get an agreement at each site, we're going to be moving over to shed 6 with AWAs?---No.

PN646

So you didn't say that?---No, I did not.

PN647

And you never would?---The situation is that in discussions we indicated that we had a number of options in respect to the agreements at shed 6. At shed 6 there is currently two agreements that apply. One is a workshops agreement and one is a site agreement. Currently within the site agreement, it states that those people that return from site will go onto the workshop agreement rates. We have constantly heard from the union that they want the site rates to apply at all times.

**** ROGER BOYLEN XXN MR HALE
PN648

Yes?---We have indicated that at some stage down the path, somewhere down in the future, we may well be closing Moon Street and moving Moon Street to the shed 6 site at which time if employees of Moon Street were on AWAs, they would naturally transfer to that particular area and they would remain on their AWAs.

PN649

Yes, so that you never threatened that AWAs would be introduced at shed 6 is what you're saying?---I'm afraid I don't - while I've already answered that question and I believe that I have answered it fully, I will make a statement which is that it is my understanding under the legislation that there is nothing prohibiting us if employees wish to enter into AWAs from having those AWAs with the employees, so was I using it as a bargaining tool? No, I was not.

PN650

Okay, so who raised the issue of AWAs at shed 6?---Mr Whelan. Mr Whelan made the comment that he did not want AWAs at shed 6. They were very upset about the AWAs that had been agreed to at Moon Street and as part of the negotiation, he wanted some form of agreement, be it a hand shake or whatever the case may be, that we would not enter into AWAs with staff at shed 6.

PN651

So then why did he give you the clause that you put forward?---The clause was there as part of either the hand shake or whatever term he wanted to use by which he could I imagine come back at some later date and say you agreed you would not have AWAs, if AWAs occurred there.

PN652

Well, the operation of that clause would - - -

PN653

THE SENIOR DEPUTY PRESIDENT: Which clause are we talking about?

PN654

MR HALE: Sorry, it was in exhibit - I think it might be R2.

PN655

THE SENIOR DEPUTY PRESIDENT: Well, I've got to say my understanding is that both Mr Whelan and Mr Boylen have given evidence that on 13 July the clause that's set out in R2 was sought as part of the collective agreement.

PN656

MR HALE: That's correct.

PN657

THE SENIOR DEPUTY PRESIDENT: Not the shake of hands.

PN658

MR HALE: Well, that's correct, your Honour. Well, maybe I should save it for submissions, but I was trying to determine - I will save it for submissions.

**** ROGER BOYLEN XXN MR HALE
PN659

THE SENIOR DEPUTY PRESIDENT: It's just that your question as I understood it and I might have misunderstood it was that the clause referring to the one in respect of which a shake of hands was sought, that's why I asked whether it was the R2 points.

PN660

MR HALE: No, the clause was the clause to go into the agreement, but what I was coming at, I suppose, was that the shake of hand would not be necessary if R2 were put in place and I guess that's when I move to the position where that's probably better to deal with in submissions than trying to adduce anything from the witness.

PN661

THE SENIOR DEPUTY PRESIDENT: Is that a convenient point, Mr Hale? Have you got much more?

PN662

MR HALE: Not a lot. Just on the AWAs, I do have one part that - - -

PN663

THE SENIOR DEPUTY PRESIDENT: I don't want to cut you off. If you're going to be a short time, we can go on, but if you require longer, that's certainly your prerogative. It may be convenient to adjourn now until later.

PN664

MR HALE: Obviously, we're trying to progress this as much as we can, but I suppose were you looking at submissions this afternoon or submissions at a later time?

PN665

THE SENIOR DEPUTY PRESIDENT: Submissions at a later time.

PN666

MR HALE: In that case, now might be an appropriate time. I might have another half hour or so of questions.

PN667

THE SENIOR DEPUTY PRESIDENT: Very well. Just before we do adjourn and set another date, the meeting you had yesterday with the union, was that only in respect of shed 6 or was it also in respect of Moon Street?---The meeting at shed 6 dealt with shed 6 matters. Then Mr Whelan and I went to Moon Street on another matter. While we were there, it was agreed that our meeting would be - the difficulty that the union has is that the shop steward is no longer part of the organisation. I was under the impression that the deputy shop steward had stepped in to that role. Mr Whelan said that in his opinion, the deputy was not in a position to take the role of the shop steward without the members voting and putting him in as the shop steward. Therefore, we agreed that Mr Whelan would come back to Moon Street, we'd meet with the staff and an election would be held to formalise who the shop steward is and at that point, we would then arrange a schedule for ongoing meetings in respect to the Moon Street agreement.

**** ROGER BOYLEN XXN MR HALE
PN668

So R2 which is the clause about the industrial instruments - - -?---That was proposed for shed 6 only.

PN669

Thank you. Okay, another date. You can stand down, Mr Boylen.

<THE WITNESS WITHDREW [4.28PM]

PN670

THE SENIOR DEPUTY PRESIDENT: We will just go off the record to set another date.

<ADJOURNED UNTIL TUESDAY 18 JULY 2006 [4.29PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

BRENDAN WHELAN, ON FORMER OATH PN109
EXAMINATION-IN-CHIEF BY MR HALE, CONTINUING PN109
EXHIBIT #A9 LETTER FROM BRENDAN WHELAN TO ROGER BOYLEN DATED 10/07/2006 PN116
EXHIBIT #A10 LETTER FROM ROGER BOYLEN TO BRENDAN WHELAN DATED 11/07/2006 PN120
EXHIBIT #A11 LETTER FROM BRENDAN WHELAN TO ROGER BOYLEN DATED 13/07/2006 PN125
EXHIBIT #A10 LETTER FROM ROGER BOYLEN TO BRENDAN WHELAN DATED 13/07/2006 PN127
CROSS-EXAMINATION BY MR DALTON PN163
EXHIBIT #R1 DRAFT DEED PN169
RE-EXAMINATION BY MR HALE PN346
THE WITNESS WITHDREW PN369
ROGER BOYLEN, SWORN PN372
EXAMINATION-IN-CHIEF BY MR DALTON PN372
EXHIBIT #R2 AWA CLAUSE DOCUMENT PN435
CROSS-EXAMINATION BY MR HALE PN475
THE WITNESS WITHDREW PN669