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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15426-1
SENIOR DEPUTY PRESIDENT ACTON
BP2006/3003
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
QUALITY MAINTENANCE SERVICES PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3003)
MELBOURNE
1.09PM, TUESDAY, 18 JULY 2006
Continued from 7/7/2006
PN46
THE SENIOR DEPUTY PRESIDENT: Appearances are the same?
PN47
MR HALE: Yes, your Honour.
PN48
THE SENIOR DEPUTY PRESIDENT: We are we at, gentlemen?
PN49
MR HALE: I think we're probably pretty close to calling witness evidence and us seeking to establish that we have met the certain conditions that are set out in section 461 of the Act.
PN50
THE SENIOR DEPUTY PRESIDENT: Okay.
PN51
MR HALE: So I would seek to call Greg Warren.
PN52
THE SENIOR DEPUTY PRESIDENT: Before you do that, Mr Harmer, can you enlighten me again on what the grounds of your objection are going to be?
PN53
MR HARMER: Your Honour, we believe that some of the requirements under section 461 in respect to certain conditions being met.
PN54
THE SENIOR DEPUTY PRESIDENT: Yes.
PN55
MR HARMER: We'll submit and also lead evidence today that those conditions have not been satisfied. Principally we're arguing that the AMWU isn't genuine in attempting to bargain and in fact negotiate and conclude an agreement and we'll lead that evidence with witness statements and with lead evidence.
PN56
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hale.
MR HALE: I'd seek to call Greg Warren.
<GREG WARREN, SWORN [1.12PM]
<EXAMINATION-IN-CHIEF BY MR HALE
PN58
MR HALE: Have you been attempting to negotiate an agreement with QMS?
---Yes.
PN59
Have you got a document in the witness box with you?---Yes.
PN60
If I could just hand up - so is that the document titled Offshore QMS/AMWU Meetings 2006, is it?---It is.
PN61
Could you just tell the Commission what that document does?---This is probably our best efforts to try and put the dates that we've met with the company and the meetings that we've had in relation to those dates of EBA negotiations.
PN62
Okay. So with the EBA negotiations I will go into it meeting by meeting in a minute, but can you give me a broad picture of what's
been happening with them?---Yes. We started in early and the attempt was at that point of time was to try and get, if you like,
a pre Work Choice agreement. We set down some boundaries of what that might do and after that we had a meeting with our membership
which we endorsed the log of claims within I think it was about
14 March or thereabouts, to endorse the log of claims and we've had several negotiations since early January to try and get an agreement
prior to the Work Choices Legislation but we haven't been able to.
PN63
Okay. So what effect did the coming of Work Choices have on your negotiations?---What effect did it have, sorry?
PN64
Yes?---They were pretty robust. There was some fairly long days that we put in to try and get the issues resolved. There was some meetings I think that went the best part of all day to identify what the issues are, limit them down to about six issues that we thought that we could get resolved and then move forward for a three year deal.
PN65
Right. But when you got to the point where you realised that you wouldn't be able to get a pre Work Choice agreement certified did that have any effect on your bargaining?---Yes, it was slowed down somewhat and also the company basically started then saying that where we were at that point and they were going to try and - they were going to put a final offer to us and once we heard that it was a final offer we then tried to get a communications meeting endorsed for the troops, to put that offer back to the troops to see what the troops thought about it and we've only just recently received a final offer and which we had a meeting yesterday.
**** GREG WARREN XN MR HALE
PN66
Did it have any effect on your claims?---Yes, it has had an effect on the claims in that because the intention I thought of the parties was to have a shorter list to get negotiations over and done with and move on.
PN67
Did you have to remove any claims from your log of claims?---No.
All right. If I can take you to the - I tender a copy of that document, your Honour.
EXHIBIT #A1 OFFSHORE QMS/AMWU MEETINGS DOCUMENT
PN69
MR HALE: Thank you. So if I could take you to that document A1 and if you could tell us, there's one there 14/12/2005, if you could tell us about that meeting?---That was - we have been since the current expired agreement a part of the commitment was through that agreement was to fix up the classification relativities and that meeting was there to find out what the position of the company on the relativities. There was an MISTAS and AIG report done of the offshore workforce and that was put out in October of last year and the company decided they didn't want to live by that agreement and so we had discussions and were trying to move those negotiations in relation to that report at that meeting and also Julius Rowe, our president, attended that meeting.
PN70
Okay. So were the classifications review a claim for the new agreement?---No, they weren't a claim on the new agreement until we basically clearly worked out. There was no intention to put them in as an EBA negotiation. The intention was to have the classifications agreed to and out of the way of the EBA negotiations.
PN71
Did they become a claim?---They did.
PN72
So by the time you put in your bargaining period were the classifications a part of your claim?---Yes.
PN73
Were the classifications a part of your claim?---Yes.
PN74
Now, the next point there is 31/1/06 you say AWU and ETU log of claims?---Yes.
PN75
Is that just what it says on the face of it, that they lodged their log of claims at that time?---Yes, the AWU and ETU had a mass meeting and developed a log of claims.
**** GREG WARREN XN MR HALE
PN76
Okay. So the agreement that has past its expiry date, who were the parties to that agreement?---The AMWU and the ETU.
PN77
And the company presumably?---Sorry?
PN78
And the company?---And QMS. Sorry, I'm not sure whether the ETU were. It was most definitely the AMWU. The ETU had a rider on whether they sign or not sign the agreements in the past. I don't think they are parties to it, no.
PN79
Okay?---It was just the AMWU and QMS.
PN80
And not the AWU?---No.
PN81
So the AWU and ETU log of claims, what effect would that have had on your negotiations?---Well, they had a separate communications meeting to endorse that log of claims. Normally it would have been all the employees all at one meeting, so effectively they went through a separate sort of a process.
PN82
Okay. Now, you've got the 2/2/06 and it's blank, do we just ignore that?---Yes, just - I haven't been able to find notes in that one. But it's in my diary but it might have been a meeting that was cancelled so.
PN83
Okay. So then 3/2/06 you've got a meeting at ACTU, QMS dispute?---Can I just refer to my notes? That was an issue that was outside of the EBA. It was an issue that was being addressed too by the ACTU.
PN84
Okay. So it wasn't to do with your log of claims?---No.
PN85
On the 8/2/06:
PN86
QMS, AMWU, AIRC, Commissioner Hingley. QMS refused to take MISTAS report on board. AIRC consent directions.
PN87
Was that in relation to the classifications?---Yes.
PN88
So up until that point you believe that you'd be able to resolve the classifications under the old agreement, was it?---Yes, we had a formal agreement with QMS that there'd be a process going through that MISTAS and the AIG would do a competency classification review of its offshore employees. That review was delivered in October of last year and the company reneged on the deal.
**** GREG WARREN XN MR HALE
PN89
Okay. So then you've got 10/2/06?---Mm.
PN90
EBA negotiations, QMS, AMWU, AWU and ETU.
PN91
Why was the involvement of the other two unions in those negotiations?---It was viewed of the unions collectively that the AWU may well have had members and that it was viewed by the unions that we all sit round the table and try and get the best deal collectively as we've done in the past. The ETU, I've always sat in the negotiations but have decided not chosen to sign on or sign off the agreement. That's the been the history on that since way back then when the previous contractor out there, Skilled Engineering.
PN92
So then 16/2/06, that was the same again, QMS, AMWU, ETU and AWU?---Yes.
PN93
And was that a meeting in relation to the EBA negotiations?---Yes, it would have been with all the three years in there, yes.
PN94
And that was while you were still trying to pursue the pre Work Choices agreement?---Yes.
PN95
So the ACTU meeting at Morwell AMWU office, was that in relation to the agreement or in relation to the demarcation dispute?---No, the ACTU was playing a role in the negotiations on the EBA and were allowed to be involved in that. The company and the other unions never identified that that would be a problem and they had a shop visit from the ACTU attend some of those meetings. So that was a meeting that we had down in Morwell, yes.
PN96
Okay. So then the 21st of the 2nd the communications meeting:
PN97
Log of claims discussed with those who attended.
PN98
So that was a report back meeting on the negotiations, was it?---Yes.
PN99
And obviously that report back meeting didn't accept the company's proposal at that stage?---No.
PN100
Then Esso Fireground Longford, Esso resolution passed?---That was a separate meeting that I did that was - I've put it in there because it was in my diary. It's QMS related in relation to the AMWU and its members with Esso but it's not relevant here.
**** GREG WARREN XN MR HALE
PN101
Okay. AIRC, QMS, was that anything to do with the agreement or negotiations?
---That again was in relation to the classification structure review but that was postponed.
PN102
Okay. Then the 27th of the 2nd, ACTU meeting, QMS offshore coverage, was that the demarcation issue?---Yes.
PN103
It didn't have anything to do with the agreement?---No.
PN104
28th of the 2nd, AIRC, QMS postponed, is that exactly what it says, it was postponed?---Yes.
PN105
3/3/06, that was EBA negotiations. Were you still trying to pursue the pre Work Choices agreement at that stage?---Absolutely, yes.
PN106
Okay. Then 7/3/06, AIRC, QMS re competencies, that's back on
your - - - ?---Yes.
PN107
8/3/06 is blank?---Mm.
PN108
What does that mean?---It could be again a cancelled meeting. 8th of the 3rd, I'll just check. What I did and why there's some blanks is that on the 8th of the 3rd I've actually got QMS in the AIRC for a competency report back meeting which would have been - sorry, which should have linked up with the postponed one of the 28th of the 2nd. I think that's what that would be.
PN109
Okay. Then the 9th of the 3rd, EBA negotiations at AMMA, QMS log of claims. So what happened there, QMS gave you a counter log, did they?---Yes, they did. We met at - the parties met at AMMA and we put our position and they give us a formal log of claims.
PN110
Okay. Then you've got AMMA, Terry Adams response to the 9/3/06, so was that the union's, the AMWUs, whose response was that on the 10th of the 3rd?---The 9th of the - - -
PN111
No, the 10th of the 3rd?---That is a response from Terry Adams.
PN112
Who is Terry Adams?---Terry Adams was - employer representative of Australian Mines and Metals, an employer representative for Mines and Metals.
**** GREG WARREN XN MR HALE
PN113
So the 9th of the 3rd, was that when you gave QMS your log of claims?---No, that was a response - it would have been a response - I'll just check my notes. No, in that meeting we discussed issues in relation to the EBA, long service leave, the duration of the agreement, what it might be. This was a forewarning, if you like, to the company of what our log of claims shape might well be. So basically what we did, we put up a pre-empted unofficial log of claims that hadn't been endorsed by the membership and so we could keep the negotiation moving forward of what we thought might well make up the log of claims.
PN114
Okay. So you got AMMAs response and then on the 14th of the 3rd you had a communications meeting where the log of claims, is that right?---That's right.
PN115
And the 15/3/06, it says:
PN116
QMS report back explained.
PN117
What does that mean?---What date, sorry, Tom?
PN118
15/3/06?---QMS reported back. We had a meeting that they reported back they were prepared to go to the reduced time frame or willing to go to a reduced time frame in relation to trying to get an early agreement. We acknowledge that we probably had two weeks to do it and we'd all have to roll up the sleeves and get into negotiation on that. But QMS were in agreement to try and get an early agreement.
PN119
So that was on the 15th of the 3rd?---Yes.
PN120
So that was before the date of Work Choices was known?---That's right, still yes.
PN121
So then 20/3/06, the AIRC, is that relevant to the negotiations?---No, that's the conference.
PN122
21/3/06, EBA negotiations in Warragul, ACTU, AMWU, ETU, AWU, pre Work Choices deal possibility?---Yes. This was a significant meeting. This come out of the 15th of the 3rd date where we said we'll put a date aside and roll up the sleeves and have a go at it. It was a meeting that was done in Warragul. It was scheduled to start at I think nine or 9.30 and we basically all put a line through our diaries that day to see if we could knock over all the issues, EBA issues.
**** GREG WARREN XN MR HALE
PN123
And you were unsuccessful?---It's fair to say we did progress some issues but we were unable to get all the issues knocked over, yes.
PN124
THE SENIOR DEPUTY PRESIDENT: What's the reason for the ACTUs involvement?---Demark.
PN125
Between?---The AMWU and the AWU.
PN126
MR HALE: So then 30th of the 3rd, EBA negotiations at ACTU office, Melbourne?---Yes.
PN127
That would have been after Work Choices had been introduced?---That is right. That's after Work Choices was introduced but we still - so basically that meeting's there to sort of work out where to from here and we were all sort of saying, well, we can still do a deal, let's get a deal done and get it out of the way and move on. So there was still a push there from the AMWUs perspective anyway to further negotiations.
PN128
Right. But were there any changes in the claims at that stage?---No, not significantly, no. But also what did well out of that, did well out of it and was put on the table was once the Work Choices Legislation was acknowledged there was some of the fair pay conditions would then take effect to go onto the agreement which was weighed up against what they currently get, so it was those issues that were raised and put on the table in terms of the sick leave, annual leave.
PN129
Okay, yes. So then the next one you have got, CoINVEST, QMS?---Yes, that's a meeting I had with CoINVEST. There's been a long outstanding issue with long service leave for an offshore worker and how that's devised. Also the unions have been pursuing CoINVEST to try and pick up prior - there's a dark hole if you like of QMS employees who have had no long service leave entitlements because of the nature of the work that they've been pigeonholed if you like.
PN130
So that was a claim against QMS in the agreement?---That's been a claim on QMS to fix the long service leave issue and it's progressing.
PN131
And you were seeking to do that through the agreement?---Seeking to do that through the agreement and that meeting there is a meeting I had with CoINVEST board.
**** GREG WARREN XN MR HALE
PN132
Okay. But it wasn't direct negotiations seeking an agreement, so it wasn't negotiations with the company?---No, it was trying to fill a hole that there has been arguments between the company and the unions in relation to prior - we say that it was a transmission of business between the old employer and this employer which disadvantaged some of our members in relation to long service leave. So there was a hole there that we were trying to patch either through the CoINVEST fund for prior offshore work.
PN133
But at that meeting you were just talking to CoINVEST?---Yes, and we were trying to pursue it, fix that issue up and then pursue it and fix it through the EBA process.
PN134
6th of the 4th, EBA negotiations, QMS response to long service leave. Now, at that meeting was that just the AMWU or was that all
unions and the ACTU?
---That's a good question, Tom. We were definitely there. The AMWU was definitely there. The long service leave issue is am AMWU
strictly only issue. It's only our members that it affects.
PN135
Have the negotiations on a three union basis continued through?---Yes.
PN136
So you say:
PN137
Discuss travel time and time paid for meeting.
PN138
?---Yes.
PN139
So that was in relation to something to go into the agreement or just that meeting?---No, that was in relation to our delegates attending the meeting, so some of them were in Melbourne. We sort of - - -
PN140
So the meetings for the negotiations yes?---Yes, so the delegates weren't being disadvantaged.
PN141
So not something to go into the agreement?---No.
PN142
And then the Coms meeting processing still in dispute?---Yes.
PN143
And that was in relation to how you could get people to attend the meeting, was it?---Yes, it's a fairly long outstanding issue that we've been trying to fix and still trying to fix through the EBA negotiations on how we can actually have - we've pretty well got parts of it fixed but not all of it fixed. It seems to - - -
**** GREG WARREN XN MR HALE
PN144
But you recognise that that could have some difficulties in relation to prohibited content if you wanted paid meetings or something for instance?---Agreed paid meetings?
PN145
Yes?---Yes.
PN146
So you recognise that in your claim. So CoINVEST was discussed?---Yes.
PN147
And it was in relation to long service leave and then a long service leave formula apart, what does that mean?---It's the accrual rate of whether you accrue 1.3 weeks per year or 1.7 weeks. Our argument is because the employees do 12 hours day, seven days a week, they have a larger accrual rate which is normally known as offshore top up, offshore make up in terms of long service leave.
PN148
So it was a claim?---Yes.
PN149
Then you say:
PN150
QMS reject jump up clause.
PN151
What does that mean?---Part of the log of claims the members were after to insert into the agreement at that time a jump up clause because they've been doing construction work and the question was how do we go about that. The company has consistently denied that - they rejected the offer flat out.
PN152
The claim?---The claim.
PN153
QMS want changes to core crew?---Yes, they wanted to make changes to the core crew and they offered to remove the early return over cycle element which is in the current agreement where it talks about getting agreement for people to work over cycle and return to work early. They work a seven day on, seven day off shift and sometimes if they can't get coverage for a particular classification they may well through consultation and agreement ask for people to stay over, work over parts of their shift. The claim from the company was that they didn't want to do that any more, they just wanted to go carte blanch, just they wanted to remove the early return over cycle clause out of the agreement.
**** GREG WARREN XN MR HALE
PN154
So they didn't want to have to consult, is that what you're saying?---That's right.
PN155
So you say QMS drop fortnightly pays?---Part of their log of claims was they were going to have a log - on the log they were going to introduce fortnightly pays as against weekly and I guess we were able to negotiate that out.
PN156
QMS agreed to October 05 as operative dates for classifications?---Yes, and that's tied up with the MISTAS AIG competency. That had, when it was introduced, it was introduced in October, that was the date that the claim was.
PN157
So you still didn't have the classifications resolved but at least you had an operative date?---That's in dispute too, still in dispute.
PN158
So they agreed and withdrew the agreement, okay. All right. So that takes us to the 11th of the 4th, CoINVEST QMS drafting, was the company involved in that or that was just you drafting the clause?---No, that was the wording that the company was putting together in relation to their offer back to us so there's a document that has now fallen out.
PN159
But that was being drafted?---Yes, that was being drafted so that was progressed.
PN160
All right. QMS EBA negotiations at Morwell on the 12/5/06?---Yes, again a fairly lengthy meeting where we basically realised that we weren't going to get an early deal because we weren't able to even resolve issues that we thought we already had agreement on so there was lots of discussions again about going back over reclaiming our claims, making sure the company knew our claim, what they were, re talking through what those claims were, making the company understand what so they knew, so the company understood what the claims were.
PN161
So between that fairly big meeting on the 6/4/06 where you've put all those things were discussed?---Mm.
PN162
And 12/5/06, was that when you put in your bargaining period?---I think that's right, Tom, yes. It was at that point - was it that meeting or the - yes, basically after we had that last meeting we knew that the company were then going to make a final offer to us. We said to the company we didn't believe that we'd finish negotiation and there was still some outstanding issues. But they were going to put a final offer to us anyway so it was then that we had a view that we put a bargaining period in.
**** GREG WARREN XN MR HALE
PN163
THE SENIOR DEPUTY PRESIDENT: Sorry, when was that, after which meeting?---That was after the 12th.
PN164
MR HALE: No, I think it's the earlier one?---The 6th.
PN165
Okay, so - - -
PN166
THE SENIOR DEPUTY PRESIDENT: Hang on, hang on, I haven't got an answer to my question yet.
PN167
MR HALE: Sorry?---It was the 6th, dated the 6th of the 4th.
PN168
THE SENIOR DEPUTY PRESIDENT: After the 6th of the 4th?---Yes.
PN169
Yes.
PN170
MR HALE: So there was then the meeting of the 12th of the 5th so that would have been after the bargaining period?---Yes.
PN171
So did the company's attitude change when the bargaining period was put in?
---We were going with the consistent line basically if you're making a final offer to us we need to get to a meeting to have a meeting
with the troops and the company kept saying yes, that's fine and we'll get there and we'll get you a final offer. We couldn't get
an agreement. Two things wasn't happening, one was that we weren't getting the final offer and a second thing was we couldn't then
at that point get an agreement on for a communications meeting. So for us, yes, their attitude did change.
PN172
Did they ever in these negotiations say to you that we're not going to discuss that because it's prohibitive content or anything like that?---Yes, that's right.
PN173
They did say that?---Yes.
PN174
And what, that was at that meeting on the 12th of the 5th or when did that occur?
---I think that might have been on the 30th, the 30th one.
PN175
Of the 3rd?---30th of the 3rd.
PN176
So it would have been just after Work Choices came in?---That's right.
**** GREG WARREN XN MR HALE
PN177
And did you adjust your claim as a result of what they were saying?---Yes, we did. Well, there was not - well, the claim has changed in relation to into those claims that basically the prohibited stuff hasn't gone back on the table.
PN178
So it was on the table prior to the 30th of the 3rd but at the meeting on the 30th of the 3rd when the Work Choices Regulations were known you withdrew any of those claims?---Yes, that's right and we haven't discussed them since.
PN179
So the 26th of the 5th, QMS final offer at Morwell, ACTU, AMWU and AWU?
---Yes.
PN180
So what was the offer that was put there?---The final offer that was put then which was just roughly outlined to us, there was no official document, but it was outlined to us - do you want me to go through the offer?
PN181
No, you don't have to?---Yes. There was a final offer verbally put to us of what they thought that would make that up.
PN182
So did you take that offer back to meetings of members?---We again put it on the company to get a Coms meeting so we could put it to the troops and kept pursuing the company to see the final offer.
PN183
Okay. Then it has got consultative committee meeting there?---Yes.
PN184
That was on the 6th of the 6th, was that consultative committee dealing with the EBA?---Yes, it was. There was some issues that were identified in that earlier meeting that could well have been - that were EBA issues but could well have been equally, to try and speed the process up, have them running and try and be fixed in a consultative committee.
PN185
Okay. Then 20th of the 6th, QMS, AMMA final package offer at Morwell AMWU office and there was QMS, AMMA, the ETU, the AMWU and the AWU?---Yes.
PN186
So they presented their final offer at that stage did they?---Yes.
PN187
Were there any negotiations in relation to that final offer?---I actually never attended that meeting because I was told prior to that meeting that we were just going to put the offer on the table. There was no negotiation, no talk and basically all we'd be doing is dropping it off to you. I think the delegate, in fact I know our delegate turned up to the meeting and where they were then given the final offer document.
**** GREG WARREN XN MR HALE
PN188
And that's all that happened at that meeting was they were given the document and told to go away and consider it, were they?---Basically, yes.
PN189
So you did that, you went away and considered it?---I never even went.
PN190
No, but you did get the document?---Yes.
PN191
From the delegate?---It was emailed. No, I was emailed it I think that night or the next day.
PN192
And you discussed that document with the delegate?---Yes.
PN193
And you considered what was in that proposal?---Yes.
PN194
So then you were told that that was the final offer?---Yes.
PN195
You requested a meeting to take it back to the members?---Yes.
PN196
Is that what communication meeting didn't happen means there?---Yes.
PN197
So then the 6th of the 7th the application for the secret ballot was lodged?---Yes.
PN198
7th of the 7th we were in here in relation to this matter?---Yes.
PN199
12th of the 7th there was a meeting at the ACTU?---Yes.
PN200
Was that in relation to the ballot or the bargaining?---It was a meeting with the ACTU about strategies, yes.
PN201
But in relation to the bargaining?---The bargaining, yes, it was.
PN202
About how you could achieve an agreement?---How we could achieve an agreement, what it is that we might need to do and in particular the question of the parties bound to the agreement.
PN203
So yesterday you had a communications meeting at Sale?---Yes.
**** GREG WARREN XN MR HALE
PN204
And you say:
PN205
The AMWU acknowledged moving forward. We would like to progress claims and seek full final draft for members to have for seven days before taking any vote of endorsement, et cetera.
PN206
?---They're the delegate's words. Some of that's not the position. The AMWU never participated in the vote yesterday. What we've said and the company should receive a letter this afternoon, I'm just currently doing other stuff, but our position is we've acknowledged that there's been a final offer made and we've acknowledged that there's been negotiations over 30 odd meetings and the parties have moved forward and we just think it's premature for a final offer and that the offer is discriminatory. It discriminates against AMWU members.
PN207
So when you say it discriminates against AMWU members is that saying that it doesn't satisfy some of the claims specific to AMWU?---That's right.
PN208
So that's I guess his discrimination. So the AMWU members weren't happy with that proposal and want to further negotiate, is that right?---What that said, yes, is they knew that today was on after we reported back to them, and they also say that if this is the final offer and the company's making a final offer, we have options under the Act where we may well be able to progress those issues that have not been progressed or are just ignored.
PN209
Now, are you pattern bargaining in relation to any of this? Are you seeking the same agreement as where you've sought the agreement somewhere else?---This will be the first post Work Choices offshore agreement in the maintenance so, no.
PN210
THE SENIOR DEPUTY PRESIDENT: What did the AWU and the ETU do at that meeting on the 17th?---I'm not sure.
PN211
Yesterday?---I'm not sure.
PN212
You don't know.
PN213
MR HALE: Are you still trying to reach an agreement?---We're happy to sit down with the company at any time and go forward with negotiations. We're happy to meet with them at any time to try and close the gap.
**** GREG WARREN XN MR HALE
PN214
So you're genuine in that, this isn't some ruse to achieve another purpose?---No, well, I think there's 30 odd meetings done since January. We've met the company and we want to keep meeting and our members want to keep going in the negotiation and get their claims met.
PN215
So have there been movement on both sides during those negotiations?---Yes.
PN216
I have no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Harmer.
<CROSS-EXAMINATION BY MR HARMER [1.56PM]
PN218
MR HARMER: Sorry, your Honour, I'm just collecting my thoughts.
PN219
Mr Warren, could we just clarify the agreement that you currently have with QMS, certified agreement pre Work Choices, is that correct?---Yes.
PN220
And that was with the AMWU as the only party?---Yes.
PN221
And that expired on 31 March 2006?---Yes.
PN222
Is it true, Mr Warren, that on a meeting we attended and I'll tell you in a moment, on the 21st of the 3rd, is it true that at that meeting that you presented as a collective, that you presented a claim on QMS in respect to Australian workplace agreements and their effect and use by a company?---What date? Sorry, what date?
PN223
21 March. I will rephrase the question, your Honour. Did you present a claim to the company on 21 March that workplace agreement clause or terms should be included into the agreement which would disallow QMS the right to offer AWAs during the term of the proposed agreement?---We entered no formal agreement, no formal claim on them.
PN224
When you say no formal claim, it's either a claim or it's not a claim. Did you make that claim against the company?---No.
PN225
So you also would then deny then that you made any further claim in respect to a deed in relation to such matter?---There's no been deed talked about.
**** GREG WARREN XXN MR HARMER
PN226
You say there's been no deed talked about, or have you put a claim on the company for a deed in respect to disallowing AWAs?---Not the AMWU.
PN227
In respect to these discussions, and I'm talking about the 21st of the 3rd, do you accept that QMS had refused to accede to that union in respect to AWAs? I say union claims because you were there in a collective of the unions as I understand your evidence?---I'm just consulting my notes here. That's the meeting at Warragul?
PN228
According to your notes, yes, it's the EBA negotiations in Warragul, ACTU, AMWU and ETU.
PN229
THE SENIOR DEPUTY PRESIDENT: What date is that, Mr Harmer?
PN230
MR HARMER: Sorry?
PN231
THE SENIOR DEPUTY PRESIDENT: What date?
PN232
MR HARMER: That was 21/3/2006.
PN233
Do you want me to repeat the question again?---No, I know the question. No, there's no - we talked about the Work Choices Legislation at that meeting. We talked about core crew, casual pool with EMRC top ups, skills to work performance, weekly hire, core crew, casuals, flexibilities and all the competency stuff. There's no mention of trust deeds or AWAs.
PN234
So your notes suggest that the company didn't in fact accede to the union claim, it didn't say that it was rejected, is that your evidence?---I have no memory of - it's not in my notes. We had several meetings and there's no mention of AWAs or any of those issues.
PN235
You would accept now that such a clause would be a prohibited content and you wouldn't be seeking any such clause in the event that you were genuinely trying to bargain with the company?---They're prohibited content, that's right.
PN236
Greg, I make an assumption from your notes that in respect to the meeting on the 14th of the 3rd that all parties included the AWU, ETU and AMWU because I've got confused, your Honour, in going through these notes as to who has participated. At times you say all parties and when you say all parties to those meetings do you mean that the officials from the other unions were there and there was joint presentations to the company in respect to the bargaining?---The parties bound to the agreement was never spoken about in any of the negotiations. QMS went to ask the question once and then backed off on the issue and we've not - it's the AMWUs view that we're parties to the agreement and at this point of time there are discussions that have been had between us and the ACTU and we've told quite clearly to QMS that that is an issue that the ACTU and the unions will sought.
**** GREG WARREN XXN MR HARMER
PN237
That's not quite my question. Sorry if I wasn't clear enough. You said earlier in your evidence that you find that it was a negotiation of a bargaining group if you negotiated with the group of three?---We did that on the basis of a solidarity look to both for the employees and for the employer that showed that the unions were at the table bargaining to get a better outcome. The AWU were in fact only sitting at the table as an observer.
PN238
So in your notes you say that they're participants in these meetings but now your evidence is that they're only an observer?---That's right.
PN239
In all meetings in respect to your reference?---That's right. That was the agreed process.
PN240
THE SENIOR DEPUTY PRESIDENT: Agreed with whom?---Between the AWU, the AMWU, the ETU and the ACTU.
PN241
MR HARMER: Greg, could I just talk about when you have a joint negotiation in these circumstances and a number of these meetings how do you go about putting to the company what is in fact the defined position, do you have a pre meeting with the union officials as to work out exactly what is the defined terms of what you're seeking? Was there a leader?---Well, we're there to voice the view of the membership and yes, there is phone calls that Peter Mooney and I have made in relation to the negotiation.
PN242
But during the course of these meetings how can you be assured that your position isn't consistent with the position of say the ETU?
PN243
THE SENIOR DEPUTY PRESIDENT: Isn't consistent or is consistent?
PN244
MR HARMER: I'm saying isn't consistent. If the ETU official isn't leading the negotiation and making claims on the company I'm
trying to work out where
Mr Warren sits in respect to the AMWU membership and whether he's actually participating in bargaining because I'm unclear from the
evidence as to who is actually leading the negotiation, if in fact there is a leader?---Yes, I consider myself as the leading negotiator,
as I always had with QMS and previous to that to Skilled Engineering. The AMWU has always led the negotiations.
PN245
Can I just go back to some of your evidence where you talked about an amended log of claims on the 9th of the 3rd, you talked about EBA negotiations , AMMA, QMS log of claims?---Yes, that from my notes is an outlook if you like from the AMWUs perspective on what the log of claims may well look like that comes from our members.
**** GREG WARREN XXN MR HARMER
PN246
So again my question, does that log of claims include matters that were being pursued by the other two unions?---These are matters we considered that would be pursued by the members.
PN247
By the AMWU members?---By the members.
PN248
Were they matters that came out of a meeting involving all employees represented by all three unions?---Not at that time, no.
PN249
Greg, I just want to address the issues in respect to the CoINVEST meetings?
---Yes.
PN250
Is it fair to say that the company's position on this matter has clearly been that the issue is in fact an issue for CoINVEST to decide and to determine?---There is parts of it that that is the case, there's no doubt and I think I mentioned that before, that there's issues that the union have taken up with CoINVEST, but there is further issues that we've had and claims that our members have had on QMS. As we said, there was a transmission of business and the claim of a 1.3 as it versus a 1.7 deviser which the 1.3 is what QMS ordinarily - sorry, CoINVEST would ordinarily put out to the industry for an onshore who would work their normal 40 hours because the offshore work is based at 127 hours, is why they get a 1.7 deviser.
PN251
But correct me if I'm wrong, isn't CoINVEST strictly governed under a deed and QMS are not in a position to change that deed because
it was changed by the board of CoINVEST and in fact QMS I understand have made representations to CoINVEST which you're aware of,
so to get to my question, what role did you expect QMS to play in respect to trying to change the deed for CoINVEST?
---There's been ongoing commitments from the employers in the industries, particularly in what we might call this industry, a labour
hire industry, both the unions and the employers to resolve the issue, outstanding issue of some members who do not qualify under
the CoINVEST. So a joint position between QMS and the unions was to try and revisit and fix that anomaly and basically get coverage
for those - - -
PN252
So you agree though it's an issue for CoINVEST to sort out as - - - ?---No, it's supposed to be an agreed position and it's been an agreed position between QMS and the AMWU that we jointly lobby CoINVEST for the issue of coverage.
**** GREG WARREN XXN MR HARMER
PN253
And you're saying that hasn't been done from QMS?---No, I'm not saying that hasn't been done. I'm saying we've been progressed QMS and CoINVEST issue long service leave has been progressed. The issue that we're apart on is the accrual rate, isn't that still determined by the deed?---No, no, not the offshore make up pay in terms of long service leave, a different issue. That historically has been normally paid for Esso contractors, has normally been paid that I'm aware of by Esso themselves because it's an Esso offshore long service leave make up which picks up the extra deviser difference if you like.
PN254
Greg, can I just take you a meeting that you weren't at and I put it that a meeting did occur on 20 June of which Terry Lee and Peter Mooney representing the other two unions were present and that was at the meeting at which that final position was put?---I was under - I received a phone call off Mr Matt Borghesi to say that that was the position of QMS is that there'll be no negotiation, no talk, no nothing on the final offer, so I made a judgment at that point just basically we'll have someone there to pick it up. Now, if the QMS and the other two unions met, I wasn't invited to it.
PN255
But you were informed about it?---I was informed to it to collect a document, that was all. I didn't need to drive all the way to Melbourne to collect a document.
PN256
Can I put it to you that Terry Adams actually rang you and actually met with you some days afterwards and sat down and explained that that meeting had occurred and what the content of that final offer was?---Yes.
PN257
So you're saying that occurred, that meeting?---But that wasn't an official meeting.
PN258
Well, I'm saying that Terry Adams met with you some days after that and explained to you - - - ?---Terry and I had a cup of coffee.
PN259
Well, you had a discussion regarding that final offer?---Yes, he just went through the final offer. He rang me up and said can I come and have a cup of coffee with you, I just want to go through the offer.
PN260
So the company made genuine attempts to keep you in the loop as to the content of that final offer?---Well, Terry Adams did. The message I got off QMS prior to the meeting of the final offer being handed down on the 20th was that there'll be no negotiation. So I said - - -
**** GREG WARREN XXN MR HARMER
PN261
You said in your earlier evidence that Terry Adams was an AMMA representative looking after QMS, did you not?---Yes. I don't think Terry Adams was at that meeting of the 20th of the 6th.
PN262
I didn't say he was. I'm just making the point that he met with you some days later to explain the final offer?---I had a cup of coffee with Terry where we did go through the offer but we did also talk about a whole range of other issues with other companies.
PN263
That's fine, I'm not asking about other companies, Greg?---The cup of coffee was nice too.
PN264
And it was communicated to you that there was a coms meeting for the 4th,
4 July?---Yes.
PN265
So you understood that that final offer was going to be put to a coms meeting and in fact you were aware of that?---I'm not sure whether the date was in concrete of 4 July then. It may well have been, I'm not sure.
PN266
Hang on, Greg. I can recall discussions with you when we were last before the Commission where it was agreed that that meeting was going forward but was cancelled due to a fog situation, is that correct?---There was a - well, if you say that it was a concrete date of the 4th of a communications meeting to go ahead, well, it never happened.
PN267
I'm saying that it was communicated to you and you understood that that meeting was agreed and the parties were working towards that meeting to outlay that final offer?---Yes.
PN268
And obviously that meeting didn't occur?---That's right.
PN269
Following that the union submitted the notification for a secret ballot and we had proceedings before her Honour about a week or two ago?---Yes.
PN270
It was agreed that we would reschedule that communications meeting for the 17th, wasn't it?---Yes, it was.
PN271
And that meeting took place yesterday?---That's right.
PN272
Greg, have you submitted any revised logs of claims or any concerns or issues formally with the company since you were advised by Terry Adams that that final offer had been put?---No.
**** GREG WARREN XXN MR HARMER
PN273
Have you made any attempts to contact Matt Borghesi and say these are my issues, these are my concerns?---No, because I was under the understanding and information I was getting both from QMS and Terry Adams, that this is the end, this is it, this is as far as Esso are going to go and this is as far as QMS is going to go. I have said to them that we're still apart on issues but there has not been another log of claims made up.
PN274
But there's been no discussion at all about any content in that final offer back to the company or in fact back to AMMA in respect to your position?---But they have made their position clear and we were going to go to - and they were prepared to take us to a communications meeting on the 4th to put the final offer.
PN275
Okay, well, let's work that through. So the 4th becomes the 17th?---Yes.
PN276
Okay. So you met with your members yesterday?---Yes.
PN277
Did you put this proposal to the members for a vote?---The AMWU have not put it - on the basis that if we have a vote on the agreement we accept or reject it we weren't asked to recommend or not recommend the agreement, on the basis that we reject the agreement it fell off the table and it was going to relinquish so the AMWU members took a view of, well, if we don't vote on it and we continue on the negotiations, they've made their - the company met with the employees yesterday also and made the point absolutely clear that this is the final offer, take it or leave it.
PN278
Greg, I put it to you that that's your view and that you haven't elected to put it to the members for a vote and that the members may very well agree to the proposal if they were given the opportunity to vote on it?---Not the AMWU members.
PN279
Greg, do you understand what the current status is in respect to the members being represented by the AWU and the CEPU?---I'm not here representing the AWU or the CEPU.
PN280
No, that's not my question. Arising from that meeting do you have any knowledge as to the status of what's transpired with those two unions?---The vote was for them to accept it.
**** GREG WARREN XXN MR HARMER
PN281
Okay. So those officials have actually given their members the opportunity to vote on the agreement and their members have accepted it?---I'm not sure whether they have or haven't accepted it. I said at the meeting that was the resolution for them was to accept it.
PN282
These are the same unions that you've been negotiating with for the last three months as a collective to try and reach an outcome. When were you going to tell us that you've decided to go down your own path?---Because we were back in here today. There was no cancellation of the secret ballot application.
PN283
No, that's not my question. You've been negotiating with these unions as a collective, I want to know when it became apparent that you were no longer part of that collective?---I haven't said that we're not.
PN284
Sorry?---I haven't said that we're not.
PN285
Yet you don't take the same position that they adopted yesterday with their members?---No, the AMWU has got their view and represent their members and the offer that QMS has made is discriminatory.
PN286
Well, you say that, discriminatory in the sense of prohibited content or - - -?---No, I'm say that the offer is in relation - - -
PN287
Well, elaborate for me, Greg, what's discriminatory?---Well, it does not address the PSOs issue.
PN288
THE SENIOR DEPUTY PRESIDENT: What's the PSOs issue?---Platform services operator. The MISTAS report give them equivalent to an Esso PSO tech 1 and tech 2 which basically workers to, if you like, a C8 level. They are currently at a C11(a) if you like, it's somewhere between 11 and the C10. The MISTAS report gives them that movement to go to that because of the skills and competencies and qualifications. The company has flatly denied the PSOs to move in relation to that but has in the meantime moved the crane driver, the basic rigger, the intermediate rigger/scaffolder and advanced rigger/scaffolder classifications which might well be seen as, if you like, AWU positions and they have discriminated. They haven't moved or put riders on even the trade classification of movement, extra riders to what the other classifications of the rigger, crane drivers have got.
**** GREG WARREN XXN MR HARMER
PN289
So if there's an agreement that looks like it's going to be in the wings between the AWU and the ETU and excludes you, would that agreement cover those who are eligible for cover?---I wouldn't have thought so.
PN290
So there's no joint coverage between the AWU and yourselves?---The AWU doesn't cover fitters, boilermakers, mechanics or PSOs, they're AMWU coverage.
PN291
Is that agreed between the AWU and the AMWU?---That's historically what's been agreed, yes.
PN292
Do you know whether it's currently agreed?---That's - - -
PN293
In respect of QMS?---At a senior level of the AWU that is the agreement. There's a heads of agreement on that.
PN294
MR HARMER: I was actually in touch on that, your Honour, in my submission.
PN295
THE SENIOR DEPUTY PRESIDENT: That's fine.
PN296
MR HARMER: Sorry, your Honour, I won't be too long.
PN297
THE SENIOR DEPUTY PRESIDENT: No, that's all right.
PN298
MR HARMER: I just want to close off a couple of minor points. The issue with this classification with PSOs, are you aware of other events that are happening in respect to those classifications?---Within QMS?
PN299
Yes?---Can you elaborate?
PN300
Sorry?---Can you elaborate?
PN301
Well, certainly I'm aware that there has been potentially some deployment been discussed?---There's been some issues discussed through the consultative committee about what might be the future manning levels if you like and those type of discussions have gone at the consultative committee. I don't know what the detail of that. I haven't sat in a consultative committee meeting for a little while but there is some discussions.
PN302
I want to clarify, Greg, that those issues aren't in fact holding up your willingness to recommend to employees to at least review and vote on the agreement?---Well, that is normal discussions, that I understand is normal discussions at a consultative committee.
**** GREG WARREN XXN MR HARMER
PN303
Can I just clarify your notes then for the meeting on the 17th of the 7th where you've said:
PN304
AMWU acknowledged movement forward but would like to address claims and seek full final draft for members to have for seven days before taking any vote of endorsement.
PN305
?---Yes, and I would like if we could, if we could strike out some words because I'm not quite sure where those words come from.
PN306
I believe they came from your minutes?---Sorry?
PN307
I believe they came from your minutes?---No, what this makes up is dates and times of meetings that the AMWU and its delegate has attended and all we did was put some dates and times up and then I've asked the delegate to fill in some blank bits if you like and that's one that he's filled in. I'm not sure why.
PN308
Is it his intent, do you think, Greg, that they want to accept the document that's on the table and that they're looking for this seven day review period because that's - sorry, I'll let you answer the question?---It's the intent by the members to at some point endorse an agreement.
PN309
No, no, that's not my question. Is it his intent at the moment to actually - is the feedback he's getting from your members suggesting that they're ready to accept that agreement?---No, that's definitely not the case. Our meeting yesterday - - -
PN310
Well, how do you know, Greg, if you haven't put it to a vote?---We had a meeting with our membership yesterday and they quite clearly told us and they told us - - -
PN311
Greg, are you - - - ?---And they told - - -
PN312
THE SENIOR DEPUTY PRESIDENT: Hang on, let him answer?---They told the mass meeting that they are not going to pick the agreement up.
PN313
MR HARMER: Greg, are you intimidating your members to not take a vote on this agreement?---Come on - - -
PN314
It's a genuine question?---No.
**** GREG WARREN XXN MR HARMER
PN315
I've just got one final matter I just want to touch on. Greg, I put it to you that this agreement has been in your hands for a number of weeks and you've had ample opportunity to raise issues and concerns with the company and that you've failed to do so?---We raised issues after the last coms meeting on the - - -
PN316
No, that's not my question?---Hang on.
PN317
I'm talking about the last four weeks, Greg?---Yes.
PN318
I'm just saying the last four weeks?---Yes.
PN319
I put it to you that you've been presented with a final offer?---Yes, yes.
PN320
And you have failed?---No, no. We raised issues after the 4th of the 7th, of the 6th, communications meeting some issues - - -
PN321
No, that's not my question?---No, hang on. But we've had no response - - -
PN322
Greg, we're talking about the final offer?---We've had no response back from the company on the issues that we put to them after that meeting when we - - -
PN323
THE SENIOR DEPUTY PRESIDENT: Hang on, this is the meeting on the 4th of the 7th?---The one that didn't happen, yes. There were still 25 or 30 members that turned were onshore.
PN324
Right, I see?---Okay. They raised some issues. We went to the company to try and clarify those issues for them and we were just getting the door shut attitude, as has their view been for weeks now, the door is shut.
PN325
MR HARMER: Greg, I put it to you that you're not being genuine and that you're not attempting to close out this agreement whereas other unions of which you're quite happy to negotiate with to a point they do close it out but you don't. I mean I put it to you that you are working an alternative agenda here and it's got nothing to do with bargaining the QMS offshore agreement?---Our members and the AMWU has a view that the current offer does not pick up the log of claims that was put on them and does not address the issues that the AMWU have been raising with QMS for nearly three years now. We're not going to - the members are not just going to accept that we just pack it all up into a little tight package and then forget about all the issues that have been arising out of this company that have been before this Commission for three years now. It is time to close it off, you're right, and we have been genuinely trying to resolve all the issues and when we get them over the line they are reneged on.
**** GREG WARREN XXN MR HARMER
PN326
I have got no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Hale.
<RE-EXAMINATION BY MR HALE [2.27PM]
PN328
MR HALE: Thank you.
PN329
Your cup of coffee with Terry Adams, was that an off the record discussion?---I'm aware so, yes.
PN330
Well, they've raised it so what about we talk about it. Terry Adams went through and explained the final offer to you?---Yes, but again I never had a document. It's just what he had off his notes that I'm understanding.
PN331
All right. Did he ask you what problems you had with it?---He did.
PN332
Did you tell him?---Yes, I told him. I told him that at that time it didn't pick up the issues of the AMWU.
PN333
And did he ask you what it would take to fix it?---He did.
PN334
And did you tell him?---Yes.
PN335
Did he put any additional claims on you?---No, it was just shut the door. He said this is as good as - my advice is at this time that's as good as it's going to get.
PN336
THE SENIOR DEPUTY PRESIDENT: What did you tell him it would take to fix it?---I told him that we'd fix the classifications, needed to be addressed, the issue of QMS doing construction work and how we put some sort of a mechanic in there, mechanism in there to fix if you like a jump up clause or QMS pick up a construction agreement or the same terms as what that - I said I think that the wages of the five, five and five offer is progressed and that's probably where it should be. The duration agreement is done but I said the real issue for the AMWU is that QMS have not addressed the classifications.
PN337
So have you got notes on the meeting?---No, I haven't. I'm rechecking the log of claims that we had as against their offer to see what was - the company in terms of the AMWU, the company has addressed two out of seven issues in the log of claims. There's still five outstanding issues at the very least and yesterday at the coms meeting - - -
**** GREG WARREN RXN MR HALE
PN338
Have you got the log of claims?---Sorry?
PN339
Have you got the log of claims?---In front of me I do. It's the 14 March one, that was the pre Work Choice on.
PN340
Is that the only log you've got?---Yes, there was discussions at one of the meetings about other issues that seeing as now we can't do a quick fix deal there's other issues that the members would like, for example, superannuation, how that might be from the currently 86.5 hours up to the 127 hours calculated, the long service leave and even yesterday they will still - the members were still saying there's issues that haven't been addressed.
PN341
So what, there was the log of claims and then there was other issues as well, is there?---In the last - no, there's not been other issues. There's been - the main issue for the AMWU has been the classifications and that will be implemented and the jump up clause. That hasn't been addressed. Yesterday at the coms meeting our membership was saying is there any fixed, has there been any fixed, we can't see any fixed in the final offer in relation to superannuation in terms of severance, which is a construction issue, the night shift and outage allowance and double time after 14 which has been ongoing outstanding issues on every, if you like, log of claims forever, but they haven't been formally put onto the company.
PN342
Sorry?---They haven't been in this round of negotiations, haven't been put on the table.
PN343
Are you going to put them on the table?---We'd like the new - we need to fix the classifications issue and we would like now if we're - we'd like now to put formally, put a further log of claims on the company, yes.
PN344
So you're going to put another log of claims on the company?---That reflects - there's a fair difference between doing and, your Honour, you'd know a fair difference between trying to do a pre Work Choices agreement and a Work Choices agreement. We also tried to do the right thing and get an early agreement. The company in its wisdom have not been able to deliver that and we haven't accepted it, so we're still apart.
PN345
Yes, but post 27 March there was EBA negotiations at the ACT office in Melbourne, right?---Yes.
**** GREG WARREN RXN MR HALE
PN346
Was that when you put a new log of claims on the table?---27 March.
PN347
So you've had your previous log of claims which I assume included prohibited content because you're trying to reach a pre 27 March agreement, is that right? No-one's bothered to show me the log of claims?---I can read out the claims that are on that.
PN348
Does anyone happen to have the log of claims.
PN349
MR HALE: We've got a copy of the claims but we've only got the one copy here?---I'm happy to read it onto the transcript.
PN350
THE SENIOR DEPUTY PRESIDENT: Can I have a look at them? So this is a resolution calling on QMS to commit to guaranteeing all existing rights, wages and conditions?---Yes.
PN351
So you want all of what you've got?---Yes.
PN352
And then it says:
PN353
We call upon Quality Maintenance Services to renegotiate the current certified agreement that rolls over existing conditions and provides for an agreed mechanism to enforce all matters contained in the current agreement.
PN354
?---Based on their log of claims that they served on us which talked about flexibility, early return and over cycle provisions in terms of fortnightly pay, greater flexibility of weekly hires working between offshore and onshore.
PN355
Yes, but there's actually nothing here, you want to role over everything. It doesn't say how you want to do it, except by agreement, is that right? And then you say in addition we want, in addition we reject their log and endorse the following main items to be included:
PN356
Wages, agreement three years, maintaining existing conditions, long service leave, new classifications to be implemented, jump up clause. All other issues to be negotiated to be reported back for endorsement from a further mass meeting.
PN357
All right?---Yes.
**** GREG WARREN RXN MR HALE
PN358
Now, I don't know because I can't recall what's in the current agreement, but I imagine there's stuff in the current certified agreement which is prohibited content matter?---Yes.
PN359
When did you change this log of claims to exclude the prohibited content?---I believe that that talks about that existing wages and conditions are in response to the QMSs log of claims on us.
PN360
Well, it doesn't say that?---That's what its intent is.
PN361
It's in addition you reject the Quality Maintenance Services log?---At that - but at that point it wasn't - I could be stood to be - - -
PN362
This is 14 March?---Yes. I'm not sure whether all of what was - we knew what was all prohibited content anyway.
PN363
No, but this is saying:
PN364
We call upon Quality Maintenance Services to renegotiate the current certified agreement that rolls over existing conditions and provides for an agreement mechanism to enforce all matters contained in the current agreement.
PN365
?---Yes.
PN366
You're making a claim in respect of all current matters. You want those, in addition you reject their log and endorse the following main items to be included?---Yes.
PN367
So has there been any change from this document in your demands? Is another resolution?---No, there's not.
PN368
There's not another resolution. Have you put another claim on the company?
---No.
PN369
So there's put a log of claims on you?---Yes.
PN370
You've put this to them?---Yes.
PN371
And that's the 14 March?---Yes.
**** GREG WARREN RXN MR HALE
PN372
And on 15 March there's a QMS report back?---Yes.
PN373
That's what, to your members, is it?---No, that was in - no, that was a meeting to us.
PN374
Yes?---That's where QMS agreed to - they were willing to a much reduced time frame in terms of trying to get an agreement pre Work Choices.
PN375
Okay. And then following Work Choices there's negotiations at the ACTU?
---Yes.
PN376
Is that involving the company, 30 March?---Sorry, what date?
PN377
30 March?---Yes, the company were there.
PN378
Okay. But you haven't changed your position at that meeting, this is your log, the 14 March 2006 resolution?---We're still arguing about the classifications, your Honour.
PN379
Well, what's happened to the other matters in this log?---They're not being dealt with.
PN380
Are they still claimed?---They still are claimed. In the dot points they're claims.
PN381
What about the stuff preceding it?---They were in relation to offshore conditions that are currently out there.
PN382
Yes?---It's in relation to off their log of claims.
PN383
Well, you read it because you're going to have to explain to me how it's in regard to their log of claims, your claim that you roll over existing terms and conditions into some form of agreement, the second paragraph, the first and second?---Yes, I can see how that can be interpreted. There's been no claim on the company to put prohibited content. There has been no trust deed or any other vehicle that may well be being used around.
PN384
Why do you say that in light of the second paragraph of that document?---I say again that that is more in relation to the consultation and agreement that we've had with the company. Unless you get agreement with the company they just - it's conditions that are out there already in relation to early return, casuals and how they're all dealt with.
**** GREG WARREN RXN MR HALE
PN385
And your position hasn't changed on any of what's in that document? You're still demanding what's in that document?---In this log of claims?
PN386
Yes?---In relation to the seven dot points.
PN387
What about the first two paragraphs, are you still demanding that?---We explained to the members yesterday that because now we haven't got a pre Work Choices agreement we're now going into a Work Choices, that the agreement that you've got we'll have now will look way, way different to what the old agreement would look like and I'm three quarters of the way through drafting one of those agreements up. I think it goes from 35 pages up to about 90.
PN388
So did the members vote yesterday to remove the other aspects of that document?
---The prohibited content that is on there?
PN389
You say or refer to the dot points in that document?---Yes.
PN390
I'm asking you when you resiled the way from demanding the other aspects of the document?---Since it's become - the focus hasn't been on those issues. The focus has not been - - -
PN391
That's not my question, Mr Warren. My question is when the AMWU walked away from those aspects of the claim and when they told the
company that?
---They haven't been discussed and on the basis that the company raised it.
PN392
Yes?---The company raised it and they raised it on the basis that it is now prohibited content to put and we agreed.
PN393
Have you ever put that document to the company?---This log of claims?
PN394
Yes?---Yes, they've received it.
PN395
Okay. Mr Hale.
PN396
MR HALE: Now, the company's final offer wasn't put to a vote of AMWU members yesterday, was it?---That's right.
PN397
Okay. So how did that come about?---When we turned up yesterday to the coms meeting which had been several hours and just prior to going into the coms meeting the AWU, if you like, had a meeting of riggers and crane drivers just prior to that meeting. So our members noticed that and then they asked for a meeting with myself to explain to them what was going on and I basically said my understanding is that the riggers and the crane drivers are more than likely to pick the agreement up because it looks after them and then they said to us, well, surely they not going to do that and leave us out, because I think the numbers at the time were - we didn't quite have the numbers. So the view was the membership said that if it looks like going to a vote and picking it up we ought to withdraw on it, we don't want to be bound by the meeting.
**** GREG WARREN RXN MR HALE
PN398
So the resolution was put forward?---Just prior to the resolution being put forward, after they had the - the resolution was to pick the agreement up and they had speakers for and against. Just prior to it being put the AMWU removed itself from the room.
PN399
So all of the members of the AMWU walked out?---That's right.
PN400
I have no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: You're excused, Mr Warren.
<THE WITNESS WITHDREW [2.46PM]
PN402
THE SENIOR DEPUTY PRESIDENT: Is that your evidence, Mr Hale?
PN403
MR HALE: That is, your Honour.
PN404
THE SENIOR DEPUTY PRESIDENT: Mr Harmer, I might take a short adjournment. Have you got one witness?
PN405
MR HARMER: Yes.
PN406
THE SENIOR DEPUTY PRESIDENT: I'll take a short adjournment.
<SHORT ADJOURNMENT [2.46PM]
<RESUMED [2.58PM]
PN407
THE SENIOR DEPUTY PRESIDENT: Mr Harmer.
MR HARMER: Thank you, your Honour. I would like to call Matt Borghesi, the HR manager for QMS.
<MATT BORGHESI, SWORN [2.58PM]
<EXAMINATION-IN-CHIEF BY MR HARMER
PN409
MR HARMER: Mr Borghesi, could you please state your full name to the Commission?---Matt Borghesi.
PN410
And your professional address?---Is Level 2, 89 Raymond Street, Sale.
PN411
And you're occupation?---I'm the Human Resource Manager at Quality Maintenance Services.
PN412
Can I just hand you a statutory declaration, please. Mr Borghesi, I've handed you a statutory declaration which has been made for these proceedings?---Correct.
PN413
And that was signed today?---Correct.
PN414
Are you familiar with its content?---Yes, I am.
PN415
Is its content true and correct?---Yes, it is.
PN416
Mr Borghesi, can you just briefly summarise the current status of negotiations related to the AMWU and its claim for ..... agreement?---Somewhat of a mystery.
PN417
Can you elaborate on somewhat of a mystery for us?---Since our final offer was put to the AMWU and the associated bargaining unit we've had no correspondence or counter log of claims in regards to our final position. Additionally, since the communications meeting yesterday we've also had no correspondence in regards to the final position from the AMWU.
PN418
And who do you consider to be their negotiating party as in the negotiation of this proposed agreement, who does it involve today?---As in a representative from the AMWU, Mr Greg Warren, and I probably should point out his delegate, Bob Shaw.
PN419
Could you just advise the Commission the current status of matters involving the AWU and the CEPU?---Yes, a communications meeting was arranged for yesterday where the company outlined its position to the employees. Following that we took a range of questions from employees in regards to the offer. The meeting had been arranged for an EBA report back for the unions and an in principle vote on the terms and conditions of the agreement. Subsequently we left. We had a visit that evening from ETU organiser and AWU organiser who informed us that the vote had been accepted.
**** MATT BORGHESI XN MR HARMER
PN420
I have no further questions at this point, your Honour.
THE SENIOR DEPUTY PRESIDENT: You might give me a second to read this then.
EXHIBIT #R3 STATEMENT OF MATT BORGHESI
PN422
THE SENIOR DEPUTY PRESIDENT: When you're ready, Mr Hale.
MR HALE: Thank you, your Honour.
<CROSS-EXAMINATION BY MR HALE [3.04PM]
PN424
MR HALE: If I can just first of all ask you, in your document you say that
Mr Warren was present at a meeting and this is at point 6 of your witness statement, on - sorry, it wasn't point 6. It was point
5:
PN425
On 21 March 2006 at a meeting attended by myself, Terry Adams, Terry Lee, Peter Mooney and Greg Warren the unions did request that QMS placed into the workplace agreement the clause term and the effect of which would have been to disallow QMS a right to offer AWAs during the term of the proposed workplace agreement. The unions further claim that absent such a provision in the proposed workplace agreement QMS should be in the alternative executed deed to the effect that QMS would not offer AWAs to the workforce during the nominal term of the proposed workplace agreement. QMS have refused to accede to the unions claim and have also refused to make any such concession regarding a deed. QMS has not stated during the negotiations that we will not or will offer AWAs to employees.
PN426
Okay. That on 21 March you were discussing the roll over agreement at that stage, weren't you?---21 March. I'm just trying to think in regards the Work Choices Legislation coming into effect on the 27th if we were in fact discussing a roll over agreement or just an agreement as such. I think at that point in time, if I recollect correctly, we were aware that Work Choices was on the way on the 27th, I believe we were - no, I don't believe it was a roll over. I believe it was a new agreement.
PN427
So you believe that that was in relation to the post Work Choices agreement?
---Yes.
PN428
Did you see a copy of Mr Warren's time line?---I have seen a copy just now.
**** MATT BORGHESI XXN MR HALE
PN429
I was wondering if the witness could be shown a copy. If I can take you to
21 March 06 where it refers to the EBA negotiations in Warragul, ACTU, AMWU, ETU, AWU, pre Work Choices deal possibility?---21 March,
yes.
PN430
So wouldn't that be the same meeting that you're talking about?---This would be the same meeting, correct.
PN431
So you would disagree with those notes that a pre Work Choices deal was still considered a possibility at that meeting?---At that point in time I think it was apparent to all of us that we weren't going to get a pre Work Choices agreement up and running.
PN432
Okay. Now, there wasn't another meeting prior to the 27th so obviously the deal or proposal that was put forward then didn't result in an agreement and by the 30th of the 3rd did any of the claims that the unions were putting on you change?---By the 30th of the 3rd?
PN433
Yes?---I don't see the 30th of the 3rd on these notes here. Here they are. So your question had their claims changed by the 30th of the 3rd?
PN434
Yes?---No.
PN435
Okay. So in your statement you say that that claim was put on you on 21 March, had you received that claim any earlier?---In regards to a deed or a possible AWA exclusion process?
PN436
Yes?---The topic had been discussed, correct, yes, it had.
PN437
Didn't it form part of the log of claims?---I believe it was part of the original log that was endorsed by the mass meeting which we've seen today and I believe it was discussed, I can't recall the date, but at a meeting prior to the 21st of the 3rd as well.
PN438
So at that prior meeting they would have been attempting to reach a roll over agreement for the pre Work Choices?---Yes.
PN439
But you say that they persisted on the 21st. Did they persist with that line of arguing all the way through?---No, they did not.
**** MATT BORGHESI XXN MR HALE
PN440
When did they drop off?---I couldn't give you a precise date.
PN441
With that log of claims was that log of claims, at every meeting did you sit down and look at the wording of the log of claims and attempt to resolve those issues or did it develop a life of its own?---We narrowed it down to those log of claims.
PN442
THE SENIOR DEPUTY PRESIDENT: Sorry, narrowed it down to which log of claims?---The one from the mass meeting which we've seen today, but we did not produce that document at every EBA meeting and go through each claim as such.
PN443
MR HALE: No, but you took the issues of there and you addressed the issues and some of them dropped off and some of them continued on?---Correct.
PN444
And there was a negotiating process to try and arrive at a new agreement?
---Correct.
PN445
And one of the ones that dropped off fairly early after the Work Choices came in would be those claims in relation to any prohibited matters, wouldn't it?---It was raised at - it would have been a number of meetings that it was risen again, especially the AWA issue, but the actual mechanism to deal with it was not discussed.
PN446
Can I ask you why you didn't put that in your witness statement?---Can you repeat the question, please?
PN447
Can I ask you why you didn't put that in your witness statement?---In regards to the topic being risen again?
PN448
Yes?---It was - I don't have an answer for you. It wasn't in the mind at the time. When it's been mentioned the AWA issue it has been at EBA negotiations but we haven't gone into any detail because we have blatantly stated that we will not include a clause or a deed covering AWAs.
PN449
Has anyone ever said to you that presuming a deed is conditional upon reaching agreement?---No.
PN450
Do you believe that if you were to satisfy Mr Warren's claim in relation to the classifications of the PSOs that you would have a better chance of resolving and reaching agreement?---Yes.
**** MATT BORGHESI XXN MR HALE
PN451
THE SENIOR DEPUTY PRESIDENT: And if you agreed to his claim on PSOs would you reach agreement on your view?---Can you repeat the question, please?
PN452
If you met his claim on PSOs would you reach agreement?---No.
PN453
Why not?---The classification of PSOs has been - well, it's been a long outstanding issue and we're not in a position to reclassify them. We don't - we can't at this point in time justify reclassifying PSOs to a whole new level, so for us to reclassify it would be not in line with what we want to do.
PN454
That wasn't my question. My question was if you agreed to his claim on PSOs, so assuming that you do, would you reach agreement?---No, I don't believe we would.
PN455
Why not?---I believe that there are still possibly some other outstanding issues that we are unaware of what the final position is on, so no, I don't think it would resolve the current agreement.
PN456
What are the issues that you think stand between you?---I think it's fair to say that we're still probably unclear on what all the issues are. We've been told that we are miles apart from an agreement prior to our final offer being made and where we're miles apart I think we are still unclear on. We haven't seen a revised log or revised claims so I think it's fair to say the company is still unclear on what it would take to close the agreement out.
PN457
MR HALE: The evidence given by Mr Warren was that the reason that the AMWU members didn't participate in the collective vote on
the agreement was because the PSOs would be disadvantaged compared with the other members of the union if that vote went ahead, is
that correct, is that your understanding?
---Disadvantaged?
PN458
That if PSOs hadn't achieved their claims and the others had?---I suppose there's a number of claims some people haven't had met but PSOs is just one claim. I gathered from yesterday's meeting, using my intuition that the PSOs aren't satisfied with the company's final position.
PN459
So you wouldn't think that Mr Warren was intimidating his members to not vote for it?---It's a difficult question for me to answer when there's been no vote. I don't think Mr Warren would deliberately intimidate but I don't believe they've been given the opportunity to vote.
**** MATT BORGHESI XXN MR HALE
PN460
Isn't that what we're seeking today, for them to be given the opportunity to vote?
---That is on protected action but I would have thought that you would need to understand what the employees position on the company's
agreement is first.
PN461
Well, if the employees are quite happy with the agreement wouldn't they vote down the protected industrial action? It's a secret
ballot, there's no intimidation?
---It is a secret ballot but it's a step forward already. I would have thought that you would need to know if the people wants to
accept the agreement before they move to take protected action.
PN462
Well, I guess the reverse of that is if Mr Warren has a secret and gets rolled I suggest he's going to be going back to a meeting of the members?---And that could well be the case but I still would have thought that members should have been given an opportunity to vote on their agreement.
PN463
Is that why you're opposing the members getting a secret ballot?---We don't believe that employees have had a chance to accept or not accept the offer and to feedback their position to the company. So we still believe that, well, bargaining is not taking place and the communications meeting that was arranged was and stipulated by all those present from the bargaining unit, an opportunity for the union to seek direction from their employees in regards to whether or not this agreement would be accepted.
PN464
Okay. I think Mr Warren's evidence was that the PSOs classification if it was reclassified in accordance with MISTAS report it would take them from somewhere between a C11, C10 down to a C8, have I got that right? C9 and C8. How much money would that involve?---When you say money, as in an increase to an employee?
PN465
Yes, increase per employee?---Per individual?
PN466
Yes?---I'm not aware of that figure, not off the top of my head.
PN467
So you haven't done the sums in relation to how much it costs you?---We have done the sums but I'm not aware of the difference between a C10, a C9 and a C8, no, not off the top of my head because that whole report involved a lot of reclassifications and a lot of sums, not just PSOs.
PN468
Were you involved in the decision to reject the PSOs?---To reject the classification?
**** MATT BORGHESI XXN MR HALE
PN469
Yes?---Yes, I was.
PN470
Was that based on money considerations?---No, it was based on non conformance to the award process.
PN471
Non conformance to the award process?---Correct.
PN472
What does that mean?---To reclassify a PSO or any employee under the metals award there's a five process and an implementation guide that must be followed and we've maintained from day one that that process was not followed.
PN473
What about in relation to the crane drivers?---In relation to the reclassification of crane drivers we also disputed that the process was not followed.
PN474
But they got theirs?---Not in accordance with the MISTAS report. They got theirs by a negotiated outcome. The company has not endorsed the MISTAS report, they never have, and we've proceed down the line of negotiated outcomes.
PN475
Did anyone but for PSOs not get the reclassifications, anyone that sought it?
---Yes, yes.
PN476
Who else?---Electrical tradespeople.
PN477
So the electrical tradespeople got the MISTAS report?---Mm.
PN478
They should have got a reclassification?---No, they did not.
PN479
Not under the MISTAS report?---Under the MISTAS report an electrical tradespeople stayed where there are unless they're a dual trader.
PN480
Well, the MISTAS report didn't recommend that they should have got a reclassification, is that what you're telling me?---Correct. It recommended that they stayed where they are, electrical tradesperson.
PN481
So they accepted the MISTAS report?---Who accepted the MISTAS report?
PN482
The electrical tradesperson?---I've never had any feedback from the electrical trades personnel on the report so I can't tell you if they've accepted it.
**** MATT BORGHESI XXN MR HALE
PN483
Okay. But it's reasonable to assume that they have and if they haven't pursued their claim, have they?---I don't believe they ever had a claim on us in the first place.
PN484
So who had the claim on you?---For reclassifications?
PN485
Yes?---The AMWU.
PN486
And not the crane drivers, not the riggers?---They were part of the process.
PN487
And they got theirs?---Not via the MISTAS report they didn't.
PN488
MISTAS came down and said they were entitled to a reclassification to this level and they were given theirs. After negotiation that was a result of the MISTAS report you tell us, but the PSOs weren't given theirs?---The PSOs were not given a reclassification, no.
PN489
Does it surprise that the PSOs aren't keen to settle on those terms?---Well, as I've said, we don't endorse that report or that process and we have stuck to negotiated outcomes.
PN490
But do you accept that it's legitimate for the PSOs to take industrial action against you to try to advance that claim?---No, I do not.
PN491
So you don't accept that that's legitimate?---For industrial action?
PN492
Yes?---No, I do not.
PN493
Why not?---I think it's part of the normal process of negotiation. We're not always going to agree on every point.
PN494
Right, you're not always going to agree on every point but as things progress one of the weapons of the worker is to withdraw their labour, isn't it?---If they so choose, but I don't believe we're at that point yet.
PN495
So why do you believe you should have the choice of when that point is reached? Haven't you told them this is a final offer?---We have told them it's a final offer.
PN496
So shouldn't they take that as being true?---Correct.
**** MATT BORGHESI XXN MR HALE
PN497
So why haven't they reached that point?---Because they haven't voted.
PN498
So if they had voted yesterday and knocked over your offer, when you say voted do you think they should have voted collectively?---When you say collectively are you referring to AMWU members, are you referring to the entire work group?
PN499
AMWU. Well, should the AMWU members have the right to vote separately, to vote as a group?---It's a difficult question to answer. I suppose ultimately it's up to the employees.
PN500
Did Mr Warren grab anyone by the arm and drag them out of that meeting?---I'm informed that he led them out of the room.
PN501
You're informed that he led them out of the room?---Yes.
PN502
That was walked out and they followed?---Correct.
PN503
Okay. So there was no intimidation, there was no pressure on them to walk out of the room?---I don't want to speculate about that, not if I'm not there, it's not fair.
PN504
Didn't they vote with their feet?---I suppose that's one argument you could run, yes. They voted to leave the room but not to vote on the agreement.
PN505
But to not get locked into an agreement that was going to disadvantage them?
---How do you know if it's going to disadvantage them if they don't take a vote as a collective group, AMWU members.
PN506
You can tell that it's going to disadvantage, can you not, if you look at the operation of the agreement and if it says, well, I'm not going to get as much as him then they've got a choice that they can make, haven't they?---There's always winners and losers.
PN507
But if I'm one of the losers don't I have a right to take industrial action against you to try to rectify that?---Possibly as I would think we would still need to know whether or not they do have a problem with that agreement as a group and we still don't know that and we've still had no counterclaim.
PN508
Terry Adams, did you speak to him before he organised the meeting with Greg Warren?---Yes, I did.
**** MATT BORGHESI XXN MR HALE
PN509
What did you discuss with Terry Adams in relation to ..... did you discuss him having a meeting with Greg Warren?---What we wanted to do was to arrange a briefing session to the union and what where we'd gotten with the package. Greg was unavailable on that particular day so I did speak to Terry Adams and it was Terry Adams intention to meet with Greg to outline the details of the package that week.
PN510
And that was all, you didn't have any instructions to try and find out what Greg's problem with it is or to try and look at ways in which a resolution might be worked out?---No, it was a briefing of the company's decision.
PN511
And you had already told Greg that that was a final offer, hadn't you?---Correct.
PN512
You've told him that the meeting was to be a briefing and that it wasn't negotiations, negotiations were over, didn't you?---Correct.
PN513
So now you're saying the members shouldn’t be able to take protected industrial action, shouldn't be able to have a vote on taking protected industrial action to try and get you to change your mind in relation to that?---No. I believe they should have had an opportunity to take a vote on the agreement first as that's why the communications meeting was arranged.
PN514
Right. But prior to that communications meeting, which was yesterday, prior to that you had no intention whatsoever in changing the company's position, did you?---That's not entirely true. I think there's always room for movement occasionally if someone reports back to you. Since we've made the final offer we've had members from the ETU and the AWU come back to the company to address I think it would be two issues in the final offer.
PN515
You had members or you had the organisers?---No, we had organisers.
PN516
And have you varied the final offer?---No, we haven't at this point.
PN517
But you've agreed to a variation in the final offer?---There was a variation agreed to on long service leave which I believe was communicated to all unions.
PN518
So did the other two unions or one of the other unions approach you in relation to long service leave?---I believe it was all two.
**** MATT BORGHESI XXN MR HALE
PN519
Okay, so - - -?---No, no, sorry, Tom. It was actually when the offer was outlaid to the bargaining unit there was an issue risen at that point in time in regards to an accrual rate for long service leave which we've addressed since.
PN520
That isn't what you just said. You said after you made the final offer you were approached by members of the ETU and the AWU and you clarified that they were organisers?---Yes.
PN521
And you made changes to the final offer as a result of them approaching you?
---Well, I'll correct what I said. It was at that initial briefing session that the issue was risen. Greg was not present but his
delegate was present and we agreed to look at an issue with long service leave and if I recollect correctly, an organiser from the
AMWU came to the offices in Sale to try and clarify some issues on accrual and I believe that's been communicated back to the bargaining
unit.
PN522
Prior to yesterday's coms meeting?---Correct.
PN523
Was it communicated to Greg?---I believe it was.
PN524
So you rang Greg and you said this is our final offer, we're going to present it down at Morwell on such and such a date, there will be no further negotiations entered into and then there were negotiations entered into?---Clarification I think is a better word.
PN525
So they were clarifications now?---Mm.
PN526
So you didn't concede anything, all you did was clarify something?---We had to clarify the accrual rate in regards to long service leave which we did.
PN527
So your final offer, you haven't made any changes to the final offer?---Apart from that clarification on long service we have made no changes.
PN528
But that's hardly a change to the final offer to say, well, this is what it really means, is it?---It's still a change.
PN529
A change in the wording?---A change in the accrual rate.
PN530
So it wasn't a clarification, it was an actual change?---I think it's fair to say change, yes, a minor change.
**** MATT BORGHESI XXN MR HALE
PN531
So can you understand that Greg Warren might be angry that you've told him it's a final offer, no further negotiations are going to be entered into, he says, well, I'm not driving down to Morwell just to pick up a document and then you make a change, you do enter into negotiations?---Well, we made a change on the request of the bargaining unit present that day, which included the AMWU delegate.
PN532
Okay. So you say that the bargaining process isn't exhausted or is exhausted?
---No, I don't believe it's exhausted.
PN533
So there is still room for you to move?---I think we've gone as far as we can on the majority of issues but if part of the bargaining unit was to come back to QMS and highlight particular problems we might be able to move but if we don't know what those problems, all those areas, I can't tell you that it's completely exhausted.
PN534
You've known about the PSO classification structure for how long? How long has that argument been going on?---Since October of last year.
PN535
Wasn't it in the previous agreement?---There was a - it wasn't actually in the agreement, no. There was a separate memorandum of understanding that I believe that was entered into, a somewhat vague memorandum of understanding. Both parties do seem to consistently disagree on what it actually says. I think in answer to your question, it was part of the previous EBA.
PN536
So it's been an issue - what was the life of the previous EBA?---It was a three year agreement.
PN537
And that expired in June, did it?---Correct.
PN538
So it's been an issue for at least three years?---Not necessarily because where we have been apart on in the parties is when would an implementation date actually commence and the MOU refers to I believe it was 11 October that a road map would be in place. So it's probably been a live issue since October of last year.
PN539
But you've agreed on the date, you just don't agree to do it?---Not for everyone, no.
PN540
Not for the PSOs?---Well, we haven't been convinced that they need to be reclassified.
**** MATT BORGHESI XXN MR HALE
PN541
All they're asking is for the opportunity to convince you. Now, in your witness statement you say, this is paragraph 6, the third paragraph in that heading, you say:
PN542
Greg Warren was not present at the meeting, however I am informed by Terry Adams that he did convey this information to Mr Warren in a separate meeting near Mr Warren's office later that week. I am told by Mr Adams that Mr Warren did not express any concerns or issues with the process.
PN543
Was that what they were talking about, the process, or were they talking about the contents?---I believe that refers to the process of a communications meeting and a report back in regard to the second paragraph after point 6, the process of organising a coms meeting and report back.
PN544
Mr Warren has been hassling you for a coms meeting for some months now, hasn't he?---Correct.
PN545
Because he's wanted to have a report back to the members in relation to the negotiations for quite some time?---Correct.
PN546
You hold quite a few of the cards in that you facilitate the members being able to communicate with each other in a meeting because it's not a normal workplace is it?---No, it's a very complicated workplace in regards to meetings.
PN547
So that you are holding the say of when Mr Warren meets with his members?
---No, we are not.
PN548
So every time he asks for a coms meeting you agree?---No, we do not agree. We have put forward many, many options to communicate with the members. As you know, it's not our facilities, it's not our helicopters. We have on several occasions discussed the opportunity of Mr Warren meeting with his members at each side of the shift, to fly all members in from offshore. To attend a mass meeting it is not easy for us to facilitate and it is becoming increasingly difficult. So we have explored as many opportunities as possible including facilitating the delegate to fly offshore to various platforms to communicate with members. We have also looked at the opportunity to have split shift meetings. I respect the unions need to communicate with its members but it is a difficult process for us to have a mass meeting.
**** MATT BORGHESI XXN MR HALE
PN549
What about if I put this situation to you, what you did was you gave the majority of the employees what they wanted in the EBA and you left a group of those employees who are members of another union not getting everything that they wanted in the EBA and you arranged a coms meeting when you felt the timing was right when you had agreement from those other two unions that you would try to get the numbers to roll the AMWU at the meeting. So you held off holding a coms meeting until such time as you put that in place, is that correct?---That is complete nonsense.
PN550
Why do you say that's complete nonsense?---Because, Tom, I've spent four to five days of my time last week facilitating and organising this coms meeting. Our workforce fluctuates and if the Commission pleases, I'll provide our personnel records which demonstrate that any one point in time there could be - the numbers consistently fluctuate from riggers to scaffolders to PSOs to fitters, mechanics. I can't predict when and how the numbers will favour any person and the time and money that went into getting PSO AMWU coverage to attend yesterday's meeting was exhausted.
PN551
I accept that you can at least know how many people are able to attend, you may not be able to know how many people who are on shore on that week will attend, but you do know who's on the roll, who's going to get a vote, that's correct, isn't it?---Who's on the roll, do you refer to who's actually rostered offshore or who's currently employed by QMS?
PN552
No, who's considered to be employed by QMS?---Yes, we know.
PN553
Who's going to be covered by the agreement?---Yes, we do know, yes.
PN554
And you gave all of them the opportunity to vote?---Yes, we did.
PN555
So you didn't say because he's a casual and he's rostered off this week we're not going to tell him about the vote?---No, we sent correspondence to all offshore platforms to start with in regarding the meeting. We then delegated a person in the office to make a courtesy call to all personnel on our payroll to notify them that there was a communications meeting for all three unions for the 17th being yesterday. So all personnel were notified.
PN556
So you did know the numbers?---Beg your pardon?
**** MATT BORGHESI XXN MR HALE
PN557
So you did know the numbers?---We know the numbers of people who are currently on QMSs books but I can't predict at any one point in time how many are going to be offshore or how many are going to turn up. In fact of those people that we rang yesterday, because as you know we employ a large supplementary labour pool, several didn't turn up from what I'm told.
PN558
Do you pay them if they do turn up, if they're rostered - - -?---The company's position is they pay all members to attend if they are rostered on shift.
PN559
What about if they are rostered off?---If they are rostered off shift the company does not pay them to attend the meeting.
PN560
You said earlier that you were aware that Mr Adams was going to meet with
Mr Warren and then in your witness statement you say:
PN561
I am informed by Mr Adams that no such discussions had occurred between him and Mr Warren in relation to further negotiations.
PN562
Did you give him any authority to negotiate?---Mr Adams has had authority to negotiate on QMSs behalf since the process has begun. He's been our bargaining agent. I certainly didn’t instruct him to cease negotiating.
PN563
So if you've told Mr Warren and this is our final offer, we're not going to move an inch, the PSOs aren’t going to get their
increase, they've missed out and then
Mr Adams goes and has a cup of coffee with him and comes back to you and says, I've agreed on the PSOs, you'd honour that?---If
Mr Adams came back and said Mr Warren had agreed to the current package.
PN564
No, that Mr Adams had agreed with Mr Warren's claim in relation to the PSOs, would you honour that?---Not if - no, Mr Adams is purely our agent so he will liaise with us on any developments.
PN565
So he didn’t raise at that meeting with authority to negotiate?---He went to that meeting to brief Mr Warren on the package.
PN566
So the answer that you gave before that he's had the authority to negotiate since the negotiations started?---Correct.
PN567
Wasn’t right?---No, he's had authority from QMS negotiate and part of that negotiating process is to liaise with myself and my operations manager.
PN568
Okay. So it shouldn’t have been too surprising to you that Mr Adams and
Mr Warren didn’t take part in any negotiations, should it?---No, not necessarily, no.
**** MATT BORGHESI XXN MR HALE
PN569
But he didn’t - Mr Adams didn’t have authority to negotiate?---As I said, he's had authority since day one to negotiate on our behalf and if there's a development he will brief me and my operations manager.
PN570
Okay. So, I guess I'm getting confused with the negotiate and agree, is it? So he wasn’t in a position to - - -?---He can't agree, no, obviously he has to come back to the client and get endorsement or - - -
PN571
Okay. So, he couldn’t put a further offer or anything to resolve it, he would have just - - -?---He could explore an offer.
PN572
Now, you say that you understand the AWA and CEPU did endorse the final offer as communicated to employees and that a formal agreement
and registration process would commence. So there's nothing in there that's prohibited content?
---Well, we haven’t got a final document as development as such yet.
PN573
But you haven’t agreed in principle to anything that's prohibited content?---No, we have not.
PN574
You haven’t even been pressured in relation to that since going back to March, have you?---There's been some pressure to have an understanding on AWAs.
PN575
Where did that pressure come from?---From the bargaining unit.
PN576
Okay. So, there's been some pressure on AWAs but that wasn’t contingent or the reaching of agreement wasn’t contingent on you agreeing to that, was it?---No, it was not.
PN577
And that was from any unit?---The position, yes.
PN578
So the single bargaining unit may have raised it with you but there was never any position put to you along the lines of, if you agree to this, we'll soften our bargaining position in relation to something else?---Correct.
PN579
THE SENIOR DEPUTY PRESIDENT: Can I just follow up on that,
Mr Borghesi. Do you actually think the AWA issue is stopping you reaching agreement?---No, I do not. No, I do not.
PN580
Thank you.
**** MATT BORGHESI XXN MR HALE
PN581
MR HALE: Since the final offer, putting aside Mr Adam's briefing Mr Warren, have you made any attempts to discuss with Mr Warren what his problem with the agreement might be?---Well, I think the fair way to answer that question is we have had discussions but as far as negotiating goes we rely on Terry Adams to instigate negotiations but I have not contacted Mr Warren directly to continue.
PN582
I have no further questions, your Honour.
PN583
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN584
MR HARMER: I have nothing further, your Honour.
THE SENIOR DEPUTY PRESIDENT: Your excused, Mr Borghesi?---Thank you.
PN586
THE SENIOR DEPUTY PRESIDENT: Mr Hale?
PN587
MR HALE: Yes, your Honour. We're - - -
PN588
THE SENIOR DEPUTY PRESIDENT: Mr Hale, can you just address me on the - not on the content of any order I might make.
PN589
MR HALE: Yes.
PN590
THE SENIOR DEPUTY PRESIDENT: But just on what might be called a jurisdictional issue.
PN591
MR HALE: Yes.
PN592
THE SENIOR DEPUTY PRESIDENT: I'll deal with that first if I can before I come to the other, depending on what view I reach. Okay?
PN593
MR HALE: Yes. On the Commission's jurisdiction?
PN594
THE SENIOR DEPUTY PRESIDENT: Yes.
PN595
MR HALE: We say that section 461, the Commission must grant an application for a ballot order if, and must not grant the application unless it is satisfied that (a), during the bargaining period the applicant genuinely tried to reach agreement with the employer of the relevant employees. We say that its fairly clear on the evidence that the union has been actively pursuing to reach agreement during the bargaining period which commenced on seven days after the 18 April which was the 25th or 26 April and we say that on the uncontested evidence of Mr Warren there were negotiations taking place. We say that the applicant is still genuinely trying to reach agreement with the employment. There are some issues between the parties. Mr Borghesi's belief that the members should have had a vote on the proposal doesn’t take away the right for those members to be entitled to have a secret ballot.
PN596
In fact if what was trying to be asserted in the questioning of Mr Warren rather than Mr Borghesi's statement that Mr Warren had somehow intimidated those members, well, that's as I understood what the object of the secret ballot procedure is all about, that they're trying to have a fair and transparent process whereby people wouldn’t be facing intimidation and wouldn’t be facing any peer pressure or anything else in relation to having a secret ballot. They would be making up their mind based on the issues. Now, if the ballot application goes ahead and the employees who are members of the AMWU don’t believe - or believe that the agreement is fine by them, they're hardly going to vote to take protected industrial action in relation to it.
PN597
They are going to be given an opportunity free of any outside influences to decide whether they take protected industrial action or not and if they vote the protected industrial action down then I would suggest that Mr Warren is going to have to go back to the company in a much worse negotiated position than he is today. So it would seem to me that the company's saying that for somehow the employees shouldn’t get a right to that vote because of the fact that the members haven’t had a vote on the final offer and the company has been emphatic that it's a final, that no further negotiations are going to be entered to.
PN598
So that doesn’t take away from the fact that the union is still trying to reach agreement. There is no requirement in the Act that the negotiations have to be exhausted. It just has to be that the union is still trying to negotiate or trying to reach agreement. There's certainly - when you're told this is it, this is the final deal, you're not getting any more, then it is reasonable that you would take that on its face and you would think well to reach agreement I'm going to have to press this harder or capitulate and the members have taken the view that they want to have the opportunity to express that through a secret ballot to show that they are serious in their pursuit of an agreement on their terms.
PN599
Now, in relation to the pattern bargaining the evidence of Mr Warren, it was uncontested evidence. There has been no attempt to pattern bargaining in relation to this series of negotiations, that there was in the face a log of claim. It was a log of claims that was put in the period where they were trying to negotiate a pre Work Choices agreement but certainly even on the evidence of Mr Borghesi the union's dropped off the pursuit of that claim and it wasn’t an impediment to them from reaching any agreement in relation to the current agreement, the Work Choices agreement, collective union agreement.
PN600
In relation to the discretion to refuse the application we say that the application is not inconsistent with the object of the division. The object being to establish a transparent process which allows employees directly concerned to chose by means of a fair and democratic secret ballot, whether to authorise industrial action, support or advancing claims by organisation of employees or by employees. Now, we say that its apparent by the application itself and by the question that were' seeking to be put in that ballot that the object of the division is very much in line in relation to be fair and democratic we've nominated the Australian Electoral Commission to conduct the ballot.
PN601
We certainly would strongly say that they're a fair and democratic organisation and we would expect that the ballot would be conducted in accordance with the objects of the division. In relation to 461(2)b) where the Commission has the discretion to refuse the application if the applicant or relevant employee has at any time contravened a provision of this division or an order made or direction given under this division, we say that there's been no accusation made in relation to that and if there were any accusation made then we would strongly deny it.
PN602
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN603
MR HALE: Thank you.
PN604
THE SENIOR DEPUTY PRESIDENT: Mr Harmer?
PN605
MR HARMER: Your Honour, the critical point in respect to what we believe is the jurisdictional issue is in fact 461 and particular emphasis we stress is in relation to (b) or 1(b). The applicant is genuinely trying to reach agreement with the employer. It certainly - I don’t and I won't for the purposes of arguing today suggest that the parties haven’t been or haven’t attempted to try in the past because obviously there has been good faith which has got to a point of a final offer.
PN606
What we have said though is that the union has contravened subsection (b) by not continuing to try and genuinely negotiate an agreement by pure virtue of the fact that they haven’t even communicated with the company since that final offer was put forward, in that they have not resubmitted any logs of claim, not resubmitted any variations to the position, haven’t even given the company any potential to consider alternatives even if it wanted to. We're saying that that option hasn’t even been provided. There's been no communication in fact between Mr Warren and Mr Borghesi.
PN607
THE SENIOR DEPUTY PRESIDENT: What about the coffee with Mr - - -
PN608
MR HARMER: Well, I think the evidence - - -
PN609
THE SENIOR DEPUTY PRESIDENT: With your organisation.
PN610
MR HARMER: Your Honour, the evidence that was led in respect to that issue was that Mr Adams was providing a briefing to Mr Warren
in respect to the final offer and we say that that briefing took place and that the SA had their coffee.
Mr Warren walked away from that with the knowledge of what the final offer was on the table. Now, at no stage has Mr Warren responded
to Mr Adams in writing, or what I say, verbally post that discussion, nor has he obviously communicated with the company.
PN611
THE SENIOR DEPUTY PRESIDENT: But the evidence is he told him at the discussion what was wrong with it?
PN612
MR HARMER: Sorry?
PN613
THE SENIOR DEPUTY PRESIDENT: The evidence is, isn’t it, that he told him at the discussion what was wrong with it?
PN614
MR HARMER: No, the evidence I think from Mr Borghesi was that Mr Adams simply went through the process as to what was involved and where they were heading towards that final conference meeting on the 17th.
PN615
THE SENIOR DEPUTY PRESIDENT: As he says Mr Adams has reported to him?
PN616
MR HARMER: That's correct.
PN617
THE SENIOR DEPUTY PRESIDENT: All right.
PN618
MR HARMER: Look, I've also had the discussion with Terry in respect to that issue.
PN619
THE SENIOR DEPUTY PRESIDENT: I don't think you can give evidence about - - -
PN620
MR HARMER: No, I'm not giving evidence - - -
PN621
THE SENIOR DEPUTY PRESIDENT: I don't think you can give evidence from the bar table on a contentious issue.
PN622
MR HARMER: Okay. I won't argue any jurisdictional grounds in respect to discretion to refuse the application. I don’t think there's any further grounds there that warrant submissions from my side of the table. I certainly have got some other concluding comments, your Honour, but there more in wrap up than jurisdictional content. I do want to touch on an issue in the event that a ballot is granted. Certainly we would like to put some evidence to you in respect to 467, the eligibility to be included on the roll. In particular I guess we wanted to reinforce or get an understanding there that it is in respect to members of the organisation in which the date the ballot order was made. The other submissions I make on that - - -
PN623
THE SENIOR DEPUTY PRESIDENT: It has to be doesn't it, by law?
PN624
MR HARMER: Well, it does but what I wanted to go further with, your Honour, was we were looking to make this order in the event that you were to grant it, make it specific to boilermakers, fitters, welders and PSO classifications because clearly they are covered by the AMWU.
PN625
THE SENIOR DEPUTY PRESIDENT: Yes. I'd say.
PN626
MR HARMER: We would say that the other classifications are, at this point in time, being represented by the ETU and the AWU which are in the attempts of trying to conclude an agreement. Certainly any potential crossover by just coverage under an award or something different to that may jeopardise those other negotiations. If the Commission pleases.
PN627
THE SENIOR DEPUTY PRESIDENT: Anything in reply, Mr Hale?
PN628
MR HALE: Just in relation to that 467 argument, we'd look at addressing that in a lot more detail if it becomes necessary.
PN629
THE SENIOR DEPUTY PRESIDENT: Yes. We'll I can indicate to the parties that in this matter I am satisfied that the jurisdictional prerequisites for the granting of the application exist so I will issue orders but as to the terms of the orders I direct the parties to confer with the aim of trying to reach an agreement on the term of those orders. If you can reach agreement on the terms then we perhaps don’t need to come back but if you can't then the next time I can sit on this matter and it would only be for a short. Well, in terms of conferring how long do you think it might take to confer?
PN630
MR HALE: I'm in a bit of a situation where I am in Sydney all week next week and I've got three days of arbitration for the rest of this week.
PN631
THE SENIOR DEPUTY PRESIDENT: Right.
PN632
MR HALE: But I might be able to get Barry or someone to confer. I don’t know what Barry's diary is like he might be able to confer in relation - - -
PN633
THE SENIOR DEPUTY PRESIDENT: We'll go off the record to discuss the times.
<NO FURTHER PROCEEDINGS RECORDED
LIST OF WITNESSES, EXHIBITS AND MFIs
GREG WARREN, SWORN PN57
EXAMINATION-IN-CHIEF BY MR HALE PN57
EXHIBIT #A1 OFFSHORE QMS/AMWU MEETINGS DOCUMENT PN68
CROSS-EXAMINATION BY MR HARMER PN217
RE-EXAMINATION BY MR HALE PN327
THE WITNESS WITHDREW PN401
MATT BORGHESI, SWORN PN408
EXAMINATION-IN-CHIEF BY MR HARMER PN408
EXHIBIT #R3 STATEMENT OF MATT BORGHESI PN421
CROSS-EXAMINATION BY MR HALE PN423
THE WITNESS WITHDREW PN585
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