BP2007/2428, Transcript of Proceedings [2007] AIRCTrans 183 (12 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16696-1

COMMISSIONER SIMMONDS

BP2007/2428 BP2007/2430 BP2007/2457

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
SKILLED ENGINEERING LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2428)

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
BUSICOM SOLUTIONS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2430)

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
SKILLED ENGINEERING LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2457)

MELBOURNE

2.57PM TUESDAY, 27 MARCH 2007

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

PN1044

THE COMMISSIONER: Yes, we have a change to appearances, I think.

PN1045

MR C TAYLOR: Yes, Commissioner, in place of MR A IRMA from the Australian Industry Group on behalf of Skilled, appearing in matters BP2007/2428 and 2457, thank you, Commissioner, and thank you for your time today, the discussions that have occurred.

PN1046

MR M MOIR: Commissioner, appearing with me in Sydney today is
Mr R EL DAGHL, my instructing solicitor. He's at the bar table with me.

PN1047

THE COMMISSIONER: Mr Terzic?

PN1048

MR TERZIC: Commissioner, the first issue I want to deal with is a further application to amend documents and I'd seek to further amend the bargaining period for initiation of bargaining period solely for Skilled Engineering, not Busicom, in the following way, and I'd ask the Commission and parties to have open before them the notice to initiate a bargaining period that was attachment A to the application and the first page of attachment A is a covering letter, dated 13 February or thereabouts and just in the document that is headed Workplace Relations Act 1996 on the second page at the top of the page there's a paragraph (b) and then underneath there's a subheading, "or involves employees who are" and then it says, "(i) engaged at the site".

PN1049

Now, prior to the Roman numeral (i) and the word "engaged" add the words, "or were". So it would read "employees who are (i) or were engaged at the site." And the reason for that is that it brings the notice in line with recent discussions between the applicant, the AMWU, and representatives of Skilled group about claims for pay for those who now have left the site and are working elsewhere at Skilled, but if the agreement was made in the terms proposed, they would receive, as part of the agreement, deposed agreement, remuneration for work they had done while at the site. That is the purpose of the application.

PN1050

THE COMMISSIONER: Yes. Is there any objection to that?

PN1051

MR TAYLOR: Yes, Commissioner, we object simply because the agreement is a prospective thing. We don't understand how now it can be re-worded to apply to employees that sometime had worked for the company within these definitions.

PN1052

MR TERZIC: Well, Commissioner - - -

PN1053

THE COMMISSIONER: I'm not sure whether the meaning of it is a basis for objection, but never mind.

PN1054

MR TERZIC: The union proposes to make an agreement and it's our contention that there's nothing in the Act that prevents an agreement being made that recognises or compensates or remunerates in some way prior service, so that payments under due under an agreement would only fall due once the agreement comes into force but those payments might be based on events that transpired prior to the agreement coming into place. A common example would be where pay increases become due once an agreement is made, but the effective operative date of the pay increase might be weeks or months prior to the agreement coming into force. There's nothing that the scheme of the Act would prevent in having an agreement made to operate in that fashion.

PN1055

THE COMMISSIONER: It might not be enforceable, though, might it?

PN1056

MR TERZIC: Well, that would be a matter for the court, I guess.

PN1057

MR TAYLOR: Yes, an agreement is designed to cover the employees that the agreement is put to, that accept the terms of that agreement. It's not designed to cover employees in the past and we say that that amendment should not be made.

PN1058

THE COMMISSIONER: Well, is it for the Commission - well, you know, I understand the practical difficulties about it, but is there some reason why a bargaining notice can't make a claim for people who were employees?

PN1059

MR TAYLOR: Well, a bargaining notice is to negotiate a new collective agreement and the collective agreement is to cover employees currently at the site who read the agreement, the information statement that's provided to them, and indicate whether a majority supports that agreement.

PN1060

THE COMMISSIONER: But they may want their ex colleagues to have some benefit of it as well.

PN1061

MR TAYLOR: But those colleagues are not there to - - -

PN1062

THE COMMISSIONER: Well, I understand they're not there to vote on it, but the people who are voting on it may vote that they ought to be able to get it.

PN1063

MR TAYLOR: Commissioner, we just simply say - - -

PN1064

THE COMMISSIONER: Well, take me to the Act and show me, please. I'm not going to have an argument on some theory. Is there something in the Act - - -

PN1065

MR TAYLOR: Commissioner, I haven't turned my mind to this issue previously, so I'd need some time just to look through the Act to determine where it is.

PN1066

THE COMMISSIONER: So you haven't had any prior warning of this amendment?

PN1067

MR TAYLOR: No, no prior warning at all, Commissioner.

PN1068

THE COMMISSIONER: Is that right, Mr Terzic?

PN1069

MR TERZIC: Yes, Commissioner. The issue arose out of recent discussions between Skilled and the union, while the specific amendment as such hasn't been ventilated before, the matter going to claims for back pay I would suggest, and I'll lead evidence to that effect, has been a contentious issue between Skilled and the union.

PN1070

MR TAYLOR: Commissioner, in the time that we've been waiting for parties to have discussions, some three-quarters of an hour, there was an opportunity for that to be put to me and for me to consider that. Now, I haven't had that opportunity.

PN1071

MR TERZIC: Commissioner, I think it's fair that Mr Taylor have some time to digest the matter, so we'll let the application stand. The case can proceed with that issue being effectively put in abeyance and we'll carry on with the other matters.

PN1072

THE COMMISSIONER: Okay. Well, the question of the amendment and the objection to it will be dealt with later to give you an opportunity to consider it. You can press on regardless of that.

PN1073

MR TERZIC: I call as a witness Joanne Wellington.

<JOANNE WELLINGTON, AFFIRMED [3.05PM]
<EXAMINATION-IN-CHIEF BY MR TERZIC

PN1074

MR TERZIC: You are Joanne Wellington?---Yes.

PN1075

And you're employed as an administrative assistant for the Victorian Branch of the AMWU?---Yes.

PN1076

And your professional address is Level 1, 251 Queensberry Street, Carlton South?---Mm.

PN1077

Ms Wellington, how long have you worked for the AMWU, approximately?
---Approximately seven weeks.

PN1078

Ms Wellington, with which offices or employees of the AMWU do you principally work, can you give their names?---John Wieladek and yourself, Barry Terzic.

PN1079

And I might just lead the witness to push things along. If there's an objection made I'll deal with it. Part of your job is to file and serve documents as requested?---Yes.

PN1080

Yes, and you occasionally file and serve bargaining period applications?---Mm.

PN1081

And ballot applications?---Yes.

PN1082

You generally know what they are?---Mm.

PN1083

Now, can you recall filing and serving a ballot application for a firm called Busicom?---Yes.

PN1084

Can you recall approximately when that occurred?---Four weeks ago, maybe, two, three, four weeks ago. I'm not 100 per cent sure.

PN1085

And can you tell the Commission how you filed and served that application?---By fax.

PN1086

And whereabouts is the fax located?---At the office in Queensberry Street.

PN1087

And had you checked whether a fax transmission has worked?---With a fax confirmation sheet, which comes after every fax.

**** JOANNE WELLINGTON XN MR TERZIC
PN1088

I'd like to show the witness a document. Now, I won't tender it just yet, Commissioner. Now, I'll just explain to you, the document is a fax transmission report that has been sent to Mr El Daghl earlier, but not the complete bundle of documents, but the one that's most relevant to these proceedings has been sent to him. Ms Wellington, can you just have a look at the documents I've handed to you? How many pages do you have there, Ms Wellington?---Six.

PN1089

Have you seen these documents before?---Yes.

PN1090

Going through them one by one in the order in which they're stapled together, can you explain to the Commission what they are and how you know about them?
---These are transmission reports that come through after a fax has successfully gone through. They're printed after every fax, but by the result where it says, OK, confirms for us how many pages have gone through.

PN1091

And where the documents say facsimile cover sheet and there's various things typed there like date, to, attention and operator, Joanne Wellington?---Yes.

PN1092

Did you prepare those documents yourself?---Yes.

PN1093

And can you recall who actually send the fax that produced these reports?---It would have been myself.

PN1094

Why do you say that?---Because it has my name on it and I'm in charge - or responsible for these documents getting sent and ensuring that all pages are sent through successfully and then filed once done so.

PN1095

Thank you, Ms Wellington. No more examination-in-chief, Commissioner.

PN1096

MR TAYLOR: No question, Commissioner.

PN1097

THE COMMISSIONER: Mr Moir?

PN1098

MR MOIR: Yes, Commissioner, can I just clarify what the document is?

PN1099

MR TERZIC: They're various documents that have been sent and unfortunately I'm not in a position to just slide them across the bar table to Mr Moir. The one document I wish to - - -

**** JOANNE WELLINGTON XN MR TERZIC
PN1100

THE COMMISSIONER: Just bear with us. We may have the facility to provide them.

PN1101

MR TERZIC: Yes.

PN1102

MR TAYLOR: Commissioner, would it be of interest for me to deal with the matter that was raised earlier? I think I have the answer.

PN1103

THE COMMISSIONER: Not while there's a witness in the box, thank you.

PN1104

MR TAYLOR: No problem.

PN1105

THE ASSOCIATE: Can you see that, Mr Moir?

PN1106

MR MOIR: Yes, I can see it now.

PN1107

THE ASSOCIATE: That's the first page. Want to look at the next page?

PN1108

MR MOIR: Yes, please.

PN1109

THE COMMISSIONER: The next page I understand it is addressed to the Electoral Office.

PN1110

MR TERZIC: Yes, and the next one is addressed to the Electoral Office again, I believe, John Nellor and Neil Keane who are Electoral Officer officials and then the next one is to the Registry, but I don't think there's any doubt as to whether the application has been properly filed or it's further evidence to show, and then the next one again is relevant again. It contains a transmission report with the same fax number as the application, the cover sheet that accompanied the application and an OK stamp at the bottom of it and that was the covering letter on the notice of initiation of bargaining period that was served on Busicom on 19 February 2007.

PN1111

MR MOIR: Can I see the fax - - -

PN1112

THE COMMISSIONER: Sorry, we can't hear you, Mr Moir? You've walked away from the - - -

PN1113

MR MOIR: Sorry, Commissioner. Can I please see the fax to the Commission? I didn't see the top of that page. Could you go back down to the bottom of the page. And back up again, sorry? Right, thank you.

**** JOANNE WELLINGTON XN MR TERZIC
PN1114

MR CURLEWIS: Mr Moir, what we're going to do is have that document faxed to the Registry in Sydney and someone will bring it to you as well, but for the purposes of cross-examination I think you've seen enough.

PN1115

MR MOIR: Yes, thank you, Commissioner. Perhaps I might put my questions to Ms Wellington now, Commissioner.

PN1116

THE COMMISSIONER: Yes.

<CROSS-EXAMINATION BY MR MOIR [3.19PM]

PN1117

MR MOIR: Ms Wellington, if I could just draw your attention to the facsimile address to Busicom dated 26 February 2007?---Mm.

PN1118

And the document I believe you have in front of you is the transmission report regarding that facsimile?---Yes.

PN1119

And it says on that report that the fax was sent at approximately 3.18 on 26 February, do you see that?---Yes.

PN1120

After that time did you telephone any person at Busicom Solutions to confirm whether or not they had received the facsimile?---I don't believe I did.

PN1121

And has it been your practice in the past to make such calls?---Generally, no. The confirmation is enough for us to know that the document has been sent through.

PN1122

I see. I have nothing further.

<THE WITNESS WITHDREW [3.20PM]

PN1123

MR TERZIC: I'd seek to tender those documents, Commissioner.

PN1124

THE COMMISSIONER: Yes. Any objection? It will be exhibit T4, I'm sorry, when I get a copy.

EXHIBIT #T4 BUNDLE OF FAXED DOCUMENTS DATED 26/03/2007

PN1125

MR TERZIC: Commissioner, I might suggest that to further proceed, the issue of service of the application appears to be a discrete issue that is dealt with as a contentious issue in the respondent's further outline of submissions, paragraphs 4 to 11 or 12. Maybe I could just address that issue now or I could just continue with more evidence. Whichever way the parties and the Commission thinks is most convenient.

PN1126

THE COMMISSIONER: It's your case. You've heard what's been proposed. Is there any objection to that course of action?

PN1127

MR TERZIC: It just puts it out of the way and we can move on to the next issue.

PN1128

THE COMMISSIONER: Well, Mr Moir, do you have a problem with that?

PN1129

MR MOIR: I don't know whether it's a problem, Commissioner, but I do intend to call evidence on this issue.

PN1130

MR TERZIC: Well, we'll just carry on with the evidence.

PN1131

THE COMMISSIONER: I think you'd better bring all your evidence in, yes.

PN1132

MR TERZIC: Yes, okay. I call Mr Mavromatis, Tony Mavromatis, recall, perhaps I should say.

<TONY MAVROMATIS, RECALLED ON FORMER OATH [3.22PM]
<RE-EXAMINATION BY MR TERZIC

PN1133

MR TERZIC: Mr Mavromatis, I'd like you to just reflect back on the evidence you've earlier given in this matter. Now, Mr Mavromatis, when was it that you first - can you recall when it was that you first sought to reach agreement with Busicom about work at the Coles Myer site?---It would have been late January, I'd say, late January. I can't recall exactly the date, but it was well before initiated the bargaining period with Busicom.

PN1134

January this year?---Correct.

PN1135

Yes, and how did you go about doing that?---Telephone conversations with a person called Paul and I think that person is Paul Desmond.

PN1136

And how did you know of Busicom at this time as a potential party for an agreement?---Well, members would contact the union and we've been out on the site and I've been out on the site, the earliest was late December last year with Terry Bradley. Knew there was an issue there. When I returned there back in early - around about late January I realised Busicom employees were there and they were also members of the union.

PN1137

Did you meet with any Busicom representatives when you were on site?---As Busicom management?

PN1138

Yes?---No. No, I have not.

PN1139

So had you heard of Busicom before these incidents?---No, I have not.

PN1140

So how did you go about finding out where you could contact Busicom management?---I had a member who gave me the details and with those details I contacted Busicom.

PN1141

Can you remember that member's name?---Yes, I can. I'd rather not mention it.

PN1142

Okay. So who was the first person from Busicom management that you spoke to?---The first person I had contact with Busicom management was a man called Paul.

PN1143

How was this, by telephone, you said?---It was over the telephone correct, it was a mobile phone.

**** TONY MAVROMATIS RXN MR TERZIC
PN1144

And can you, to the best of your recollection, recall what was said in that telephone conversation?---The best of my recollection that conversation was pretty clear, "Paul, I am Tony Mavromatis from the AMWU and I'd like to arrange a meeting time with you where we can sit down and talk about the employees that you have down at the Coles Myer construction job." The response to that was, the generic response, I must say, that it's not a construction job, "We have employees employed there who are paid above the award and therefore have nothing else to say to you."

PN1145

And was there more of substance said in this telephone conversation, Mr Mavromatis?---I think the only other substance that was may have been mentioned at that telephone conversation was, Paul advised me that this is how he operates in Sydney and he's been doing this and getting away with this for a long time and my response to that was, well, you know, you're in Victoria now, you come across jobs where we need to talk to you.

PN1146

So Mr Mavromatis, can you now say what the next action was that you took in relation to securing an agreement with Busicom?---Well, obviously speaking to members first on the site, and with their endorsement to do it, we initiated a bargaining period notice. Before that I had been contacted by Romeo who works for Rhodes Legal and Romeo had said, you know, if you want to talk to my client in the future you'll have to go through me. I said, okay, we'll go through you and I responded to Romeo by saying, listen, we want to talk about, you know, getting a workplace agreement in place for the people who are working at the Coles Myer construction site and the generic response again was, it's not construction and Romeo's response was, we're not legally obliged to do anything. Unless you can find a legal avenue we don't want to talk to you no more. And after that we initiated a bargaining period notice.

PN1147

And the conversation you've just recounted with the person you've identified as Romeo, how did that take place, was that - - - ?---Over the telephone, yes.

PN1148

Over the telephone?---Yes.

PN1149

And after that conversation and the reference to initiating a bargaining period, what's your next recollection of an action taken by you to pursue an agreement, a workplace agreement with Busicom?---Well, as I said, we initiated a bargaining period notice. By memory Romeo from Rhodes Legal had asked for a draft copy of what our claims would be. We have sent him a draft copy and really we've had no response. The only response is that there was some, you know, vague sort of comments made that we haven't had enough time and all that because we've accused - I must clearly say that I've accused Busicom for trying to prolong these negotiations because the job hasn't got long to go and I felt like they were trying to prolong the negotiations and we want to deal with it as soon as possible.

**** TONY MAVROMATIS RXN MR TERZIC
PN1150

How did you communicate this draft agreement that you've referred to to this person you identified as Romeo?---We sent it by fax. I'm sure it was fax, I'm pretty sure it was fax. It might have been email actually. I can't remember right now, but I've got he details with me.

PN1151

And after sending through the proposed agreement, what was the next action you can recall you took to try and secure an agreement with Busicom?---I had Romeo ring me up saying, you know, we haven't got a response from you - from - sorry, we haven't got a response for you at the moment, Tony, but why are you going down the lines of taking protected action, why are you putting the application in. We said because we believe you're prolonging these discussions, you're not taking them very seriously and we want to, you know, do our business and get it over and done with. Romeo then tried to convince me to drop off, I must say, he said drop off the proceedings with Busicom, continue with Skilled and if the site
gets - and if the site gets deemed to be construction, well, my best recollection of his words were, we may talk to you then. I said, listen, mate, I don't treat you any different than anybody else. You got employees there that have rights to go for a workplace agreement, your employees are working there, we're saying it's construction. Obviously you're saying it's not. That will be dealt with in the future but you still to negotiate an agreement with us for your employees.

PN1152

And can you recall about when this conversation you've just referred to took place?---Well, that was after the bargaining period notice had been issued and the company - well, Rhodes Legal had received a draft document of an agreement.

PN1153

Yes, and can yo now recall the most recent communication you've had with Mr El Daghl, or Romeo El Daghl?---Even though these proceedings were taking place, I still have a view that people still can sit down and try and negotiate an agreement and because we hadn't heard from them for a period of time and I still believe they're trying to prolong the negotiations, I actually - - -

PN1154

MR MOIR: Well, I object, Commissioner. I do object at this point. The question was quite specific, what was the most recent conversation that the witness had with Mr El Daghl. Now, the witness is giving a submission about what he thinks of the conduct of Busicom.

PN1155

THE WITNESS: I'll - - -

PN1156

THE COMMISSIONER: I think if you just concentrate on answering the question?---Yes, okay. Let me - the way this dealings I've had with this is that I sat down and wrote a letter to Busicom, to actually Romeo, from Rhodes Legal yesterday and which the girls typed up and sent it to them, which is a copy there.

**** TONY MAVROMATIS RXN MR TERZIC
PN1157

MR TERZIC: Yes. I'd just like to hand a document to the witness. Mr Mavromatis, I've just handed you a copy of a letter dated 26 March 2007 with your signature on it. Is that a copy of a letter of which you have knowledge?
---Yes.

PN1158

That's your signature on the letter?---That is.

PN1159

And did you cause that to be sent to Romeo El Daghl?---Yes.

PN1160

I seek to tender that.

PN1161

THE COMMISSIONER: Do you have a copy of that, Mr Moir?

PN1162

MR MOIR: No, I don't, Commissioner.

PN1163

THE COMMISSIONER: So your instructing solicitor hasn't got it? It's a letter addressed to your instructing solicitor.

PN1164

MR MOIR: What, the date is 26 March?

PN1165

THE COMMISSIONER: Yes, and it's sent by fax to 02 97361944.

PN1166

MR MOIR: All right, and how many pages is it?

PN1167

THE COMMISSIONER: It's one page.

PN1168

MR MOIR: We're just looking for it now. Is this the letter requesting employee records?

PN1169

THE COMMISSIONER: And advising they're still awaiting a response, yes.

PN1170

MR TERZIC: It concludes with the words, "We look forward to your early reply."

PN1171

MR MOIR: Yes, that's dated yesterday, isn't it?

PN1172

MR TERZIC: Yes.

PN1173

MR MOIR: Yes. We did receive that.

**** TONY MAVROMATIS RXN MR TERZIC
PN1174

THE COMMISSIONER: You have a copy of it there?

PN1175

MR MOIR: I don't think we've got a copy of it with us here, but we know what document or what letter you're referring to.

PN1176

THE COMMISSIONER: It's been tendered, so I propose to - if there's no objection, T5.

EXHIBIT #T5 LETTER DATED 26/03/2007

PN1177

MR TERZIC: Mr Mavromatis, have you received a reply to that letter?---No, I have not.

PN1178

Mr Mavromatis, are you at the present time still trying to secure an agreement with Busicom?---Yes, I am.

PN1179

And how could you give an account of the contents of the sort of agreement you are seeking to pursue?---The context of the agreement will be based on the scope of work that the guys are carrying out. Obviously it will based under the construction scope of work. It'll have the hourly rates. It'll have travel allowance. It'll have possibly a site allowance dealing with work, heights or other issues relevant to the site. It'll have redundancies, either through InkLink(?) or something like that. It'll have all those contents.

PN1180

Will it reflect the draft agreement you sent earlier?---Yes, it will.

PN1181

And, Mr Mavromatis, have you made any other demands on Busicom for something such as a side deed or anything of such nature?---No, I have not.

PN1182

Mr Mavromatis, have you received any complaint from Busicom concerning something known as prohibited content?---Not to my knowledge, no.

PN1183

Now, Mr Mavromatis, I've asked you a series of questions about Busicom. I want to now direct your attention to another firm called Skilled. Can you indicate how Skilled is involved in this scenario?---Skilled have employees out on site who also participate in the same, or in very similar classifications as Busicom. They have TA's, they have fitters, they have boiler makers and are carrying out works that are done under construction.

PN1184

And have you taken steps to pursue an agreement with Skilled?---Yes, I have.

**** TONY MAVROMATIS RXN MR TERZIC
PN1185

And who have you done that with from Skilled then?---With Mr Paul Borobokas.

PN1186

And you've met with Mr Borobokas, have you?---We have.

PN1187

Can you, to the best of your recollection, indicate to the Commission how many meetings you've had with Mr Borobokas over this issue and when they occurred?
---I would say we've had - I've had - I've been involved in approximately, it would be about four meetings. One would have been with Terry Bradley late last year. One would have been with another organiser called Ali, from the union, and he was present too, and there may have been another two occasions when it was just myself and Paul Borobokas.

PN1188

And how would you explain to Mr Borobokas, what you're seeking in an agreement, the terms you're seeking?---Obviously the issue stopped. I mean, negotiations didn't go much further after we started talking about construction work. Really, that was a stumbling block, so it really hasn't gone too far because, you know, we're saying - the union was saying it's construction work and we'd be covered by the MECA award, the same sort of framework, and Skilled's position was no, we're not talking to you because it's not construction. So it really hasn't progressed very far.

PN1189

Mr Mavromatis, can you give an indication to the Commission of your knowledge of the number of members who have - of the AMWU who have been working at the Somerton site and what the trend is, or has been with relation to the numbers active at the site?---These will only be guesstimation numbers, Commissioner. When I was in there probably December of last year I'd say there would have been close to 25, 30 members of ours. That has been declining especially over the last two week period, it's been declining pretty quickly and I don't know how long Skilled Engineering have got to stay on the job for, but it doesn't seem like it's going to be a very long time. At the moment I'd guess there's about 12 Skilled employees still left on the site because, you know, my understanding is that Skilled Engineering had the job to fit the racks only and that job is coming to an end, so I'm told, and once they're completed I'm told that Skilled won't be there much longer.

PN1190

And Mr Mavromatis have you raised the issue of how the employees of Skilled have moved on from that site should be treated in these negotiations?---Yes, we have - I have. I've said that we need to reach an agreement that deals with the site and everybody that's worked on the site that's been a Skilled employee.

**** TONY MAVROMATIS RXN MR TERZIC
PN1191

And are you still trying to pursue an agreement with Skilled about this work?
---Absolutely.

PN1192

And does anyone from Skilled raise with you concerns over something called prohibitive content?---No.

PN1193

And have you tried to pursue something akin to a side deed with Skilled over this - - - ?---No.

PN1194

That's all in-chief, Commissioner.

PN1195

THE COMMISSIONER: Yes. Mr Taylor?

PN1196

MR TAYLOR: No, questions, Commissioner.

PN1197

THE COMMISSIONER: Yes, Mr Moir?

PN1198

MR MOIR: Commissioner, might I have a short adjournment to get some instructions from my client about Mr Mavromatis' evidence?

PN1199

THE COMMISSIONER: There's no objection, I take it? Yes. How long will you be, Mr Moir.

PN1200

MR MOIR: About a quarter of an hour, Commissioner.

PN1201

THE COMMISSIONER: Yes, we'll adjourn for 15 minutes. Just before we do adjourn, are people prepared to proceed tomorrow?

PN1202

MR MOIR: Commissioner, I'm available tomorrow afternoon.

PN1203

THE COMMISSIONER: I mean tomorrow morning, Mr Moir. I'm not - this Commission isn't going to run its operations to your requirements all along. The matter was listed and on the previous occasion, it was listed for 9.15. We made an accommodation, there was agreement, except from the CFMEU, for it to proceed at 2.15 because of your requirements. The matter will proceed at 10.15 tomorrow. Ms Walters?

PN1204

MS WALTERS: If the Commission pleases and it is with the greatest regret that I have to get to my feet at this point in time, but I'm simply not available tomorrow and the other legal officer at the CFMEU is in Cambodia. So we're not in a position to proceed unfortunately tomorrow.

**** TONY MAVROMATIS RXN MR TERZIC
PN1205

THE COMMISSIONER: There might be some capacity for Mr Terzic to represent you, surely?

PN1206

MR TERZIC: Yes.

PN1207

MR WALTERS: We're in a position to talk about that, Commissioner, off the record. We're unable to at the moment.

PN1208

THE COMMISSIONER: I appreciate that but look, I am under considerable pressure from the legislation to get this matter dealt with speedily. There's been a series of adjournment to meet Busicom's commitments and I thought that I made it very clear on the last occasion that my tolerance for that is limited. So Mr Moir, you might have to have some discussions with your instruction solicitor. I notice that he's there, and you'll find some way to be represented tomorrow if this matter does go ahead. We will not be sitting beyond 5 pm tonight. We'll adjourn for 15 minutes.

<SHORT ADJOURNMENT [3.44PM]
<RESUMED [4.06PM]

PN1209

THE COMMISSIONER: Yes, Mr Moir?

<FURTHER CROSS-EXAMINATION BY MR MOIR [4.07PM]

PN1210

MR MOIR: Mr Mavromatis, you referred to the initial contact which you'd made with representative from Busicom some time in late January 2007?---Yes.

PN1211

Do you recall stating that?---Yes.

PN1212

The person that you first spoke to from Busicom, that was Mr Paul Desmond, is that right?---Yes, I believe so, yes.

PN1213

So the first time you had contact with anybody at Busicom was late January?
---Correct.

PN1214

And when you telephoned Mr Desmond you introduced yourself from the AMWU, I assume?---Correct.

PN1215

And is it the case that you asked Mr Desmond, for him to provide you with copies of any workplace agreements covering Busicom's employees?---I don't think so, no.

**** TONY MAVROMATIS FXXN MR MOIR
PN1216

It's the case, isn't it, that you did ask for copies of EBAs and any other workplace agreements covering Busicom's employees from Mr Desmond?---I may have, but I don't recall.

PN1217

You also asked him to provide copies of workers' compensation certificates and any other certificates of insurance?---No.

PN1218

That's not correct, is it, Mr Mavromatis?---No.

PN1219

And Mr Desmond advised you in response that he would need to consider your request and that he'd also need to speak with the head contractor, Schaefer, is that correct?---I'm not sure what the question is, mate.

PN1220

It's quite a straightforward question, Mr Mavromatis.

PN1221

MR TERZIC: Commissioner, I object to that question. There is some ambiguity. Is the question pitched at large, that is to say, does the question go to Mr Desmond seeking to get permission from Schafer for a broad range of things, or only for the production of workers' compensation certificates, et cetera? What exactly is it that is being asked? It is unfair, in my view.

PN1222

THE COMMISSIONER: Mr Moir, you'd better ask it again.

PN1223

MR MOIR: Mr Mavromatis, in response to your request for copies of agreements and certificates of insurance, Mr Desmond stated to you that he would need to speak with Schaefer, did he not?---That I would need to speak to Schaefer, or he would need to speak to Schaefer?

PN1224

That he would?---He may have, yes.

PN1225

And did you also mention - it's also the case, isn't it, that you mentioned to Mr Desmond that Skilled Engineering were going through court action?---At that time I don't think so.

PN1226

And that you said to Mr Desmond that if he's not careful then Busicom will go through it too?---I don't recall saying that.

PN1227

When you say you don't recall, are you categorically denying that you said those words, or is it the case that you just don't remember?---If you're saying I've threatened Busicom that they will go through some legal avenue, I suppose, I don't remember saying that.

**** TONY MAVROMATIS FXXN MR MOIR
PN1228

Mr Mavromatis, please just answer my question. Are you categorically denying that you said words to that effect, or is it a case that you just don't remember?---I don't remember.

PN1229

And it's also the case, isn't it, that Mr Desmond replied that he doesn't respond to threats?---I don't remember Mr Desmond saying that either.

PN1230

And Mr Desmond further stated that if you wanted to pursue this matter, then you could ring his office and make a proper appointment, rather than ring him up out of the blue on the mobile phone making threats?---I don't recall that either.

PN1231

And again, when you say you don't recall that, are you categorically denying it or you just don't remember?---I'm categorically denying it.

PN1232

And it's also the case, isn't it, that at no stage during this conversation in late January that you made any mention of a proposed new agreement for Busicom employees?---They are very, very hard questions. Are you saying - - -

PN1233

Just answer the question, Mr Mavromatis?---I need to understand the question if I'm going to answer it.

PN1234

It's a straightforward question, sir.

PN1235

THE COMMISSIONER: No, Mr Moir, it wasn't. It really did have what sounded to me like a double negative in it, so you might like to put it straight, please.

PN1236

MR MOIR: It's the case, isn't it, Mr Mavromatis, that at no stage during this conversation did you refer to any proposed new agreement covering Busicom employees?

PN1237

THE COMMISSIONER: There remains a series of negatives in that. I wonder if you could put it in a positive way so that I can understand it, even.

PN1238

MR MOIR: During the conversation, Mr Mavromatis, did you mention any proposed new agreement covering Busicom employees?---During that conversation I would have said to Paul, we would like to do an agreement to cover your employees working at Coles Myer, yes.

**** TONY MAVROMATIS FXXN MR MOIR
PN1239

When you say that you would have said that, you're not sure that you actually did?---I think I just answered that question.

PN1240

Well, are you saying categorically that you did mention a proposed new agreement or is it the case that you just don't recall?---It is the case that I would have mentioned to Paul that we would like to do an agreement to cover your employees working at Coles Myer.

PN1241

Mr Mavromatis, I'm asking you what you actually did say at the time. Not what you believed you said at this point in time?

PN1242

THE COMMISSIONER: Look, Mr Mavromatis, it is a reasonable point. You said, "I would have said it" which implies that you have no recollection but that you're relying on your normal behaviour. The specific question is, did you do it? If you can't recall, you've got to say that?---Okay, I don't recall.

PN1243

MR MOIR: Now is it the case that you contacted Mr Desmond again, a second time, on or about 8 or 9 February?---It may have been.

PN1244

And is it the case that during this conversation you made mention for the first time of a proposed new enterprise agreement?---It may have been.

PN1245

And that you said to Mr Desmond that, we want you, that is, Busicom, to sign an agreement?---I would have said we would like to do an agreement, correct.

PN1246

And Mr Desmond told you to - or asked you to send him a copy of the agreement?---I don't think so, not at that time. The only time I've been asked for a copy or a draft to be sent was by Mr Romeo from Rhodes Legal.

PN1247

But if you think that you did mention or you did say to Mr Desmond we want you to sign an agreement, that was your evidence a moment ago, wasn't it?---No, I said would like to do an agreement with you.

PN1248

Yes, okay, so you said that to Mr Desmond on or about 8 or 9 February. Don't you think that a natural reply to that would be, well, okay, send me a copy?---No, the natural - - -

PN1249

Send me what it is that you're seeking?---The natural response was, and my recollection is pretty clear on this one, is that we're paying the blokes - he believed he was paying the blokes above the award wages and we don't have to do anything.

**** TONY MAVROMATIS FXXN MR MOIR
PN1250

When you said that you'd like Busicom to sign an agreement, Mr Desmond replied, "Send me a copy. We'll have a look at it and send it to our solicitors." That's correct, isn't it?---That's incorrect.

PN1251

And it's the case, isn't it, that shortly after that second conversation with Mr Desmond, you then received a telephone message from Busicom's solicitor, Mr El Daghl, and you received this telephone message some time around 12 February on your mobile phone, isn't that correct?---That may be possible, yes. I'm not too sure if the date's right, but yes, I do remember it, yes.

PN1252

Yes, and so he left a message on your mobile phone asking you to call him back about 12 February and then you did in fact call Mr El Daghl back?---Yes, okay, yes.

PN1253

Yes. So Mr El Daghl initiated the contact with you, didn't he?---Yes.

PN1254

Not the other way round, was it?---May not have been, no.

PN1255

And when you spoke with Mr El Daghl in the course of telephoning him back, you put to him a demand that Busicom produce certain documents, correct?---No.

PN1256

You asked that Busicom produce pay slips for all of the employees?---Yes, that may have been the case, yes, correct.

PN1257

You also asked for Busicom to produce its workers' compensation records?---That would not be correct. I was interested - - -

PN1258

You also asked - - - ?---I was interested at the time to know exactly what the employees of Busicom's arrangement was as far as - - -

PN1259

The - - - ?---As far as what their hourly rates were.

PN1260

So you also asked for copies of all agreements covering Busicom employees?
---No. No, I was - - -

PN1261

You asked for copies of any enterprise agreement covering Busicom employees?
---No. I'd asked for what conditions of employment are the employees under.

PN1262

Yes, and that would be found in any workplace agreement, wouldn't it?---It could be, yes.

**** TONY MAVROMATIS FXXN MR MOIR
PN1263

So you did ask for copies of workplace agreements so you could find out what the terms and conditions were?---No. I asked specifically what the employees' wages and conditions were.

PN1264

And therefore you asked for copies to be provided of any workplace agreements covering those employees?---What I asked for is what the conditions of employment for the employees were.

PN1265

That doesn't answer my question, Mr Mavromatis.

PN1266

THE COMMISSIONER: I think it did, Mr Moir. I think you're starting to badger the witness there. He specifically denied three times now that he asked for the agreements. He said he asked to be advised of the terms and conditions under which the employees - - -

PN1267

MR MOIR: Commissioner, I'm entitled to - - -

PN1268

THE COMMISSIONER: I beg your pardon, Mr Moir, you're entitled to what?

PN1269

MR MOIR: Commissioner, I'm entitled to test the responses given by Mr Mavromatis.

PN1270

THE COMMISSIONER: And I'm saying you've tested it sufficiently.

PN1271

MR MOIR: If the Commission pleases.

PN1272

Mr Mavromatis, you also asked for copies of any other insurance records?---No.

PN1273

Of Busicom?---No.

PN1274

And when you asked for copies of documents, is it the case that Mr El Daghl responded by wanting to know the basis upon which you sought these documents?---I think I've just said I didn't ask for those documents.

PN1275

You asked for some documents, please?---I asked for the employees' wages and conditions in terms of employment.

PN1276

THE COMMISSIONER: No, but you also agreed that you asked for the pay slips?---The pay slips, yes, I mean, yes. That'll tell me what employees are on, but I didn't ask for any WorkCover or insurance or anything like that.

**** TONY MAVROMATIS FXXN MR MOIR
PN1277

But they're the documents to which he's referring to?---That's what I think so, yes.

PN1278

MR MOIR: And Mr El Daghl wanted to know why you wanted these documents?---Do you want an answer to that?

PN1279

THE COMMISSIONER: Yes. Did he ask you?---Why did I want the documents?

PN1280

Yes?---But if I haven't asked him for insurance documents or WorkCover documents, why would he ask me why do I want them for?

PN1281

No, no. You've agreed that you asked for the pay slips?---Correct.

PN1282

Well, let's just think that we're referring - he's referring to those documents?
---Okay, and if you are referring to these documents, the reasons why I would ask for that is to know exactly what the employees are on.

PN1283

No, no. He's asking - the question was, did Mr El Daghl ask you what is the basis for why you're demanding?---Yes, and my - - -

PN1284

Right, yes. Okay, well, that's the answer to the question?---Okay.

PN1285

MR MOIR: And is it the case, Mr Mavromatis, that you explained to Mr El Daghl the reason you wanted the documents was because you asserted that employees of Busicom did not know whether they were receiving superannuation or not?---That may have been, yes.

PN1286

And Mr El Daghl replied that if that was the case, then the employees could simply check their pay slips?---That may have been, yes.

PN1287

And that you responded by saying that there are other things that the union wanted to check?---Yes.

PN1288

And Mr El Daghl replied to you that if that was the case, then the union should put its request in writing so that he could then pass it on to his client to consider, is that correct?---Yes, it may have been, yes.

PN1289

And that Mr El Daghl further advised you that the company was not going to send through confidential or personal records until it received a proper request?

**** TONY MAVROMATIS FXXN MR MOIR
PN1290

MR TERZIC: Commissioner, we're going through this conversation in excruciating detail and I'm questioning what the relevance of it is, whether Mr Mavromatis asked for certain details or not. The test for the Commission to be satisfied at this stage of proceedings are those set out in section 461. The issues that are being ventilated in evidence in my submission have no relevance or, at best, very, very peripheral relevance to that issue and Mr El Daghl might have asked Mr Mavromatis a whole series of questions in relation to matters unrelated to that finding that the Commission must make, but I can't see any purpose of having them brought out in evidence, if the Commission pleases.

PN1291

THE COMMISSIONER: Mr Moir?

PN1292

MR MOIR: Commissioner, I'm happy to outline the relevance of the questions in the absence of the witness.

PN1293

THE COMMISSIONER: Yes. All right, well, I'll ask Mr Mavromatis to step aside and go beyond earshot, please. We might close the door, then.

<THE WITNESS WITHDREW [4.25PM]

PN1294

THE COMMISSIONER: Yes, Mr Moir?

PN1295

MR MOIR: Commissioner, the union has introduced evidence about the various conversations in which it's going to be asserted, one imagines, that those conversations are evidence of the union genuinely trying to fix an agreement. The respondent, in my submission, is entitled to challenge the evidence about the nature of those conversations because they do bear upon the exact issue of whether there has been a genuine attempt to reach an agreement or whether there has been other issues at play.

PN1296

MR TERZIC: Well, Commissioner, there might have been many other issues at play at any one stage. Mr Mavromatis might have had questions about whether the employees were being paid their lawful entitlements under the existing industrial instruments at the time, but so what? It would be a better use of everyone's time if the evidence was directed at the central issue question, and that is whether there was an attempt by the union genuinely to try to reach agreement, and to lead evidence on a whole range of other issues just really is pointless in my submission and a waste of time.

PN1297

THE COMMISSIONER: How much more of it is there, Mr Moir?

PN1298

MR MOIR: On this conversation there's - I'm virtually exhausted, Commissioner, like everyone else, it sounds, and I'm moving on to the - basically I'm following the chronology which is set out in annexure E of Mr El Daghl's affidavit.

PN1299

THE COMMISSIONER: So are you going to put it to him on the grounds of - - -

PN1300

MR MOIR: I'm putting that - - -

PN1301

THE COMMISSIONER: I'm going to allow it.

PN1302

MR MOIR: Yes, I'm just putting that chronology to Mr Mavromatis.

PN1303

THE COMMISSIONER: Yes. I'm going to allow the questions, Mr Terzic.

<TONY MAVROMATIS, RECALLED [4.28PM]
<FURTHER CROSS-EXAMINATION BY MR MOIR, CONTINUING

PN1304

MR MOIR: If I could just repeat my question before you stepped outside, Mr Mavromatis. Mr El Daghl advised you that his client was not going to send through personal or confidential records without there being a proper request put forward by the AMWU in writing?---Yes, okay.

PN1305

And Mr El Daghl also stated to you that if the union has a draft agreement that it would like the company to consider, then it should send it through to him for consideration?---No, I deny that.

PN1306

It's the case, though, isn't it, that Mr El Daghl did mention a proposed agreement?
---What Romeo did say to me is that they're paying the blokes above the award wages and unless you find me something legally that we must do, we don't have to do anything. So I can't - - -

PN1307

That's just not correct, is it, Mr Mavromatis?---Well, I'm telling you that's what was said.

PN1308

Mr El Daghl never stated to you that the company was not legally obliged to do anything, he never said that, did he?---Yes, he did.

PN1309

In fact what he said to you was that if the union has a draft agreement, wants the company to consider, then it should forward it to him and he'll pass it on to his client for consideration?---He didn't ask for that until after we initiated a bargaining period notice.

PN1310

Again, that's just not correct, is it?---It is correct.

PN1311

And it's the case, isn't it, that after this conversation on 12 February the union initiated a bargaining period on 16 February, four days later?---Can't remember if it's the 16th. I thought it might have been the 14th, or around about there. Might have been the 16th.

PN1312

The bargaining period notice is dated 14 February and are you aware that Busicom received that notice on 16 February?---Am I aware that Busicom received that on the 16th when we sent it on the 14th, is that what you're asking me?

**** TONY MAVROMATIS FXXN MR MOIR
PN1313

Are you aware that Busicom received it on the 16th?---How would I be aware of that?

PN1314

THE COMMISSIONER: Well, no. Look, it's a simple question. There's no need to get into an argument?---No. Okay, no.

PN1315

MR MOIR: All right. Now, before the union initiated the bargaining period on 14 February, did you or anyone else at the union put a proposed agreement to Busicom?---After a request was made, yes.

PN1316

Listen to my question, Mr Mavromatis. Before the union initiated the bargaining period on 14 February, did you or anyone else at the union forward a proposed agreement to Busicom?---Well, I never done it and I'm not aware of anybody else that done it.

PN1317

So as far as you're aware there was no agreement sent by the union to Busicom before the bargaining period notice was initiated?---Correct.

PN1318

And do you have a copy of the bargaining period notice and the covering letter dated 14 February?---There is one around, yes. I don't have it in front of me.

PN1319

I just wonder if the witness might be provided with a copy and while he is, I'll just move on to another area.

PN1320

THE COMMISSIONER: No, it can be done straight away. It's exhibit T4.

PN1321

MR MOIR: Thank you, Commissioner.

PN1322

THE COMMISSIONER: It's the last page of that exhibit, I think.

PN1323

MR TERZIC: That's just the fax receipt. It doesn't actually have the notice.

PN1324

THE COMMISSIONER: Right, okay.

PN1325

MR MOIR: And might the witness be shown - - -

PN1326

THE COMMISSIONER: Here it is. He can be shown it now.

PN1327

MR MOIR: Might the witness be shown Mr El Daghl's affidavit sworn 7 March?

**** TONY MAVROMATIS FXXN MR MOIR
PN1328

THE COMMISSIONER: Yes, Mr Moir.

PN1329

MR MOIR: Thank you. Do you have Mr El Daghl's affidavit in front of you, Mr Mavromatis?---I do.

PN1330

And if I could ask you to turn to annexure B - I'm sorry, before that, annexure A is the bargaining period notice and a cover letter. Do you see that?

PN1331

THE COMMISSIONER: I think Mr Mavromatis is not used to annexures and bits of paper, Mr Moir. We'll have to wait till he finds it?---Someone's going to have to help me.

PN1332

My associate will come and - annexure A?---Got it.

PN1333

He has annexure A.

PN1334

MR MOIR: Thank you, Commissioner.

PN1335

You see that's the cover letter dated 14 February signed by Mr Robb?---Yes.

PN1336

And if you turn the page, you see the notice to initiate a bargaining period?---Yes.

PN1337

Again, it's dated 14 February on the second page of the notice?---Yes.

PN1338

Now, if you could then turn over the page to annexure B, do you see that this is a letter from Mr El Daghl to Mr Robb dated 21 February?---Yes.

PN1339

And do you see that in the second paragraph of the letter it says that, "We have to hand a copy of your organisation's initiating notice dated 14 February"?---Yes.

PN1340

And do you see in the next paragraph, Mr El Daghl is requesting that the union provide the company with comprehensive particulars of each of the matters that your organisation seek to negotiate?---Yes.

PN1341

And then further it says that, "The AMWU may wish to provide the company with a copy of any draft agreement"?---Yes.

PN1342

And that's for the company's perusal and gaining the company's instructions?
---Yes.

**** TONY MAVROMATIS FXXN MR MOIR
PN1343

And it's the case, isn't it, that up until this letter, 21 February, no such draft agreement had been forwarded by the AMWU?---I'm not sure when the date on the draft - when we forwarded the EBA.

PN1344

All right. Well - - - ?---There has been a draft EBA forwarded. I'm just not sure of the date, that's all.

PN1345

Well, I'll come to that in a minute, but you see also there in annexure B Mr El Daghl states that he's acting on behalf of Busicom?---Yes.

PN1346

And that all correspondence should go to him?---Correct.

PN1347

All right, and then if you go over to annexure C, you see that this is an email which has got your signature on it at the bottom and it's dated 22 February, the next day?---Yes.

PN1348

And it refers to the facsimile letter of Mr El Daghl on the previous day?---Yes.

PN1349

And that as per his request the union is attaching a copy of a draft agreement?
---That's right.

PN1350

And that's sent at 11.33 am on 22 February, do you see that?---Yes.

PN1351

And you authorised this email to be sent?---Yes.

PN1352

And you say in the email that you look forward to the company's response ASAP, correct?---Yes.

PN1353

And you go on to say because you believe that Busicom has been avoiding and delaying discussions and negotiations?---Yes.

PN1354

This is the very first time that you forwarded any draft agreement to Busicom, isn't it?---Yes.

PN1355

So it's not correct, is it, for you to say that Busicom has been avoiding and delaying discussions and negotiations when you haven't even sent a draft agreement to them until this time?

PN1356

MR TERZIC: That's a loaded question. I object to that question. Well there hasn't been a full and comprehensive agreement sent to Busicom prior to that date, does not necessarily follow that the inference can be drawn that there has been delay and avoidance in negotiations. He's trying to verbal the witness, make him answer a proposition.

**** TONY MAVROMATIS FXXN MR MOIR
PN1357

THE COMMISSIONER: I think Mr Mavromatis can look after himself. So I'll let you answer, Mr Mavromatis?---That's my opinion.

PN1358

MR MOIR: And you're asking for the company to respond ASAP to the draft agreement which you've sent to them for the very first time the day after you initiate the bargaining period?---Yes.

PN1359

Correct?---Correct.

PN1360

And the attachment to the email is a copy of the agreement, the proposed agreement?---Yes.

PN1361

And you've seen that document, haven't you?---I have.

PN1362

And you'd agree with me, Mr Mavromatis, that it's quite a lengthy document?
---Yes.

PN1363

The document goes for some 38 pages?---Yes, could be right.

PN1364

And it includes some 45 clauses?---It may, yes.

PN1365

Plus numerous annexures and appendices?---Yes.

PN1366

And you're expecting the company to respond to the contents, I assume, within a reasonable period of time?---Correct.

PN1367

But you obviously wouldn't expect them to be able to respond within, say, 24 or 48 hours, would you, given the nature of the document?---It's a very difficult question my friend. I have - - -

PN1368

Well, you don't think it would be reasonable, would you, to expect the company to respond to this document with dozens of clauses as well as appendices within a few days, would you, you'd expect them to need to some to consider it?---I mean - - -

PN1369

To go through it?---A response could be, Tony, we received your da, da, da, da and we're still going through it, or something like that, you know, could be anything.

**** TONY MAVROMATIS FXXN MR MOIR
PN1370

Yes?---I don't expect you to say yes within 24 hours but, you know, I expect some talk back so we can start negotiations and all that sort of stuff, you know.

PN1371

Yes, okay. So you accept that the company would need a reasonable amount of time to go through the document?---Yes.

PN1372

And formulate a response?---Yes.

PN1373

You certainly wouldn't expect them to respond within a couple of days?---Some response would be nice.

PN1374

Except perhaps to acknowledge receipt of the document?---Some response would be nice.

PN1375

Would you? All right, and you'd agree that the company should therefore be provided some reasonable time to come back with a response?---Yes.

PN1376

All right, and so you send the proposed agreement through for the first time on the Thursday, 22 February?---Yes.

PN1377

And yet you, that is the AMWU, initiates an application for a secret ballot on the following Monday, just within a couple of days of sending the agreement for the first time?---Yes.

PN1378

And if you take into account the fact of the weekend, between the Thursday and the Monday, you've effectively given Busicom about a day, one working day, a day and a half, to consider the contents before you've initiated your application?
---Yes.

PN1379

And you maintain, do you, quite seriously, that you have genuinely tried to reach agreement before lodging your secret ballot application when the very first time you forward any agreement is within a couple of days of the application being filed?---Yes.

PN1380

You seriously maintain that, do you?---Yes.

PN1381

And if you go back to your bargaining period notice, annexure A?---Yes.

PN1382

Go back to annexure A, see the cover letter dated 14 February 2007 from Mr Robb?---Yes.

**** TONY MAVROMATIS FXXN MR MOIR
PN1383

You see in that cover letter it says that in the second paragraph it says that the AMWU indicates a preparedness to negotiate an agreement which takes into account the individual circumstances of your business, correct?---Yes.

PN1384

Do you accept that until such time as you provide the business with a draft agreement, that it would be pretty hard for the parties to negotiate such an agreement?---No, that talks about meeting and setting up a reasonable time for a response.

PN1385

Yes, I'm coming to that sentence in a minute, but just concentrating on the first sentence. Do you accept that until such time as you actually provide a company with a draft agreement it's pretty hard for them to negotiate one with you?---Why?

PN1386

Mr Mavromatis, I'm asking the questions here?---I just can't understand why it'd be hard for someone to negotiate with me when they've got a draft in front of them.

PN1387

You could hardly expect Busicom to negotiate an agreement until such time as you actually provide them with one, as you indicated you would?---Correct.

PN1388

And never did until 22 February?---Yes, correct.

PN1389

And you go on and say, or I'm sorry, Mr Robb states in the next sentence, "The AMWU's relevant representatives will meet with you face to face at reasonable times and they will consider and respond to your proposals within a reasonable time." Likewise, Busicom should be given a reasonable time to consider and respond to the AMWU's proposal, shouldn't it?---Yes.

PN1390

But you never did that before lodging your secret ballot application, did you, because you lodged it within a couple of days of sending the agreement?---When people show me that they're really not prepared to negotiate or after comments saying that, "we pay above the award", and there's been comments made that if this site's declared construction, Busicom's saying this to me, we're going to walk away from the job, I really make an opinion to myself whether somebody really wants to sit down and negotiate or not and it's been now over another week and I still haven't had a response.

PN1391

Then why did you bother to send an agreement at all if that was your view?
---Obviously it would only be a matter of courtesy, if you're trying to reach an agreement with somebody or asking somebody to reach an agreement to cover employees, obviously it'll be a matter of courtesy to provide them with a draft with what you're seeking.

**** TONY MAVROMATIS FXXN MR MOIR
PN1392

The real reason that you provided a draft to the company is because they requested you to do so, isn't it, Mr Mavromatis?---Correct.

PN1393

So there's no question about the company saying to you, we won't consider any agreement. They actually wrote to you through Mr El Daghl and said, provide us with a copy of a draft agreement if you wish, and this was in annexure B of Mr El Daghl's affidavit, his letter, dated 21 February, request that you provide the company with a draft agreement?---That's right, and in a matter of courtesy, I did.

PN1394

That's right, so there's no question that Busicom were refusing to consider any draft agreement. Their legal representative was stating that you should forward one to him for consideration?---Yes, yes.

PN1395

And that's exactly what you then did, the next day, you responded to Mr El Daghl's request, you even stated, "As per your request, this is in annexure C, "we have attached a copy of a draft agreement"?---That's right, I've agreed to that.

PN1396

Yes?---Yes.

PN1397

So you comply with the company's request to send an agreement and you would expect then for negotiations and discussions to occur over the contents of that draft document within a reasonable time, wouldn't you?---Yes.

PN1398

I mean, if you were serious about trying to reach an agreement, surely that's what you would expect to do, wouldn't you?---Yes.

PN1399

But you did none of that before lodging the secret ballot application?---I got no response.

PN1400

Because you didn't provide Busicom with any reasonable opportunity to consider the document before lodging the secret ballot application?---Well, it's a question of what's reasonable, I suppose.

PN1401

Well, do you consider a day and a half reasonable for a company to consider a document with 45 clauses and a number of annexures?---It would probably be closer to two working days and a weekend for someone to respond. At least to respond and say, we've got your agreement. You know, we'll contact you within another day or something to give you our response. Didn't even get that. Got nothing. The only thing I got is we pay them above the award wages, what are you complaining about?

**** TONY MAVROMATIS FXXN MR MOIR
PN1402

Before you lodged the secret ballot application did you give that opportunity to Busicom?---I think so.

PN1403

Did you, before lodging the application on the Monday , did you contact them to say, we want a response from you now or we're going to lodge this application?
---Do I have to?

PN1404

Look, no but - - - ?---No, no, I didn't.

PN1405

THE COMMISSIONER: Just answer the question, Mr Mavromatis?---Sorry. No, I didn't.

PN1406

MR MOIR: And the reason you didn't is because you knew that that wouldn't be reasonable?---No. The reason I did it because I don't think I have to.

PN1407

Yes. The reality is you couldn't care less what Busicom's response might be, you were determined to have the issue of award coverage determined by the Commission as soon as possible, that what was your real motive was in filing the application?---That's your opinion, I guess.

PN1408

And it's correct, isn't it?---That's your opinion, I guess.

PN1409

THE COMMISSIONER: No. He's asking you what - - - ?---The whole idea of initiating a bargaining period in coming before the Commission is to get a workplace agreement for the employees of Busicom, in this instance, Busicom working at Coles Myer Distribution Centre, Somerton Road - Somerton, Union Road.

PN1410

MR MOIR: But if you were serious about that idea, then surely you would have given more time to Busicom to consider the proposed agreement and then respond to it before lodging your secret ballot application?---How do I answer that? If I was serious about - well, I am serious about it. That's why we're here.

PN1411

The point is that you were never, that's the union and yourself, Mr Mavromatis, you were never genuinely seeking to reach an agreement with Busicom for its employees. Rather, you were more interested in having the issue of award coverage determined by the Commission?---Incorrect.

PN1412

And that's why you lodged the application before giving any reasonable opportunity for Busicom to consider the draft agreement?---Incorrect. We want a workplace agreement to cover with Busicom employees working at Coles Myer, our members.

**** TONY MAVROMATIS FXXN MR MOIR
PN1413

And if you can go back to annexure A, Mr El Daghl's affidavit?---Annexure A, this one?

PN1414

It's the letter from Mr Robb dated 14 February?---Yes.

PN1415

And going back to the second paragraph, the second sentence this time, which I took you to a little earlier, "The AMWU representatives will meet with you face to face at reasonable times", et cetera, do you see that?---Yes.

PN1416

Can you tell me how many face to face meetings there were between the time that you forwarded the draft agreement on 22 February and the time that you lodged the secret ballot application on 26 February?---Zip.

PN1417

And can you tell me how many face to face meetings you requested with the company between those times, that is, between 22 and 26 February?---Obviously one which is covered by that annexure A.

PN1418

Well, you didn't even request one, did you?---Well, that's what it says there, doesn't it?

PN1419

Well, can you show me where you have requested a face to face meeting with Busicom and/or its representatives between 22 and 26 February?---There hasn't been a request to meet face to face from those dates. The only request is on that dated 14 February from Mr Gary Robb.

PN1420

And if you were genuinely trying to reach an agreement with someone, in this case Busicom, surely you would have requested a face to face meeting with them to discuss the proposed agreement?---I don't think that was a question, was it?

PN1421

It was a question. Please answer it?---That's already been requested by Mr Gary Robb on 14 February.

PN1422

No, that wasn't my question. The question was that surely if you were genuinely trying to reach an agreement with someone, in this case Busicom, then you would have requested a face to face meeting with them to discuss the proposed agreement. Do you accept that proposition?---That could be possible, I suppose. Not all - - -

PN1423

You do accept that proposition, don't you?---Not all negotiations are the same. Let's face reality.

**** TONY MAVROMATIS FXXN MR MOIR
PN1424

And you accept that in this case that didn't occur?---That did not occur.

PN1425

Yes, there were just no requests by the AMWU to have face to face meetings about the draft agreement?---No, correct.

PN1426

And in fact there've been no request for any other kind of discussions about the proposed agreement, even a discussion over the telephone?---Before I lodged for the secret ballot, is that what you're saying?

PN1427

Yes?---No, correct, correct.

PN1428

And surely again, if you were genuine about striking a deal with Busicom, you would have explored those opportunities, those possibilities, correct?---Possibly.

PN1429

But you did none of that?---No.

PN1430

If I could just have a moment, Commissioner. Commissioner, I have no further questions at this point. There is just one issue that I would just seek to reserve our position on and it may mean I have to just very briefly recall Mr Mavromatis in the morning and it's regarding Mr Mavromatis' evidence about whether he received any acknowledgement from Mr El Daghl of the proposed agreement and if he had received such an acknowledgement then he would not have initiated the secret ballot application. You might recall Mr Mavromatis stated that earlier this afternoon.

PN1431

THE COMMISSIONER: I understand you're putting that. I haven't got the transcript and I don't have a precise recollection of those words.

PN1432

MR MOIR: Yes, yes. My solicitor just needs to check his records back at the office overnight to test that proposition put by Mr Mavromatis and I just seek to reserve our position on that for the morning and therefore recalling Mr Mavromatis in the morning and it would only be very briefly, otherwise I have no further questions.

PN1433

THE COMMISSIONER: Yes. No objection to that. Okay. Re-examination?

PN1434

MR TERZIC: I thought - - -

PN1435

THE COMMISSIONER: I asked if they wanted to ask any questions earlier.

**** TONY MAVROMATIS FXXN MR MOIR
PN1436

MR TAYLOR: Commissioner, I just have one question arising out of that.

PN1437

THE COMMISSIONER: You had an opportunity to cross-examine and I gave you the first opportunity to cross-examine and you said no questions.

PN1438

MR TAYLOR: Yes, Commissioner, but I - - -

PN1439

THE COMMISSIONER: You don't get a second go. Re-examination is for - I mean otherwise - no. Mr Terzic?

<RE-EXAMINATION BY MR TERZIC [5.01PM]

PN1440

MR TERZIC: Now, Mr Mavromatis, since the events that have been described to you over and around the time of the bargaining period notice being initiated in mid February, can you recall speaking to Mr El Daghl or representatives from Busicom subsequent to that proposed agreement?

PN1441

MR MOIR: I object, Commissioner. I didn't ask any questions about subsequent contact with Mr El Daghl. My questions went up to the date that the secret ballot application was filed, which is 26 February. Mr Terzic is straying well beyond that.

PN1442

MR TERZIC: I'll withdraw the question. There's no questions, sorry, Commissioner.

PN1443

THE COMMISSIONER: Yes, thanks. Mr Mavromatis, you've heard the discussion about the possibility of being recalled. You are excused but I'd ask you to attend in the morning, in case you are recalled?---Commissioner, I have got some appointments tomorrow morning and if I need to be, I would ask Barry to give me a phone call and I'll make myself available.

PN1444

Yes. Is that satisfactory as far as you're concerned, Mr Moir?

PN1445

MR MOIR: I'm sorry, I missed the first point, Commissioner.

PN1446

THE COMMISSIONER: Well, you reserved your rights to recall Mr Mavromatis. Mr Mavromatis has explained that he will be able to be recalled but he won't be here first thing.

PN1447

MR MOIR: That's fine, Commissioner, as long as he's here before the evidence is concluded, that's no problem.

**** TONY MAVROMATIS RXN MR TERZIC
PN1448

THE COMMISSIONER: Well, I think that will be the case. All right. Well, Mr Mavromatis, subject to the possibility of being recalled, you're free to go, thank you for your assistance?---Thank you.

PN1449

And we'll adjourn now until 10.45 tomorrow morning, subject to - have you made arrangements, Ms Walters?

PN1450

MS WALTERS: If the Commission pleases, yes, we will rely on and support the submissions of the AMWU and the AMWU will be appearing on our behalf.

PN1451

THE COMMISSIONER: Yes. Well, on that basis the proceedings are adjourned until 10.45 tomorrow morning.

<ADJOURNED UNTIL WEDNESDAY 28 MARCH 2007 [5.04PM]

PN1452

LIST OF WITNESSES, EXHIBITS AND MFIs

JOANNE WELLINGTON, AFFIRMED PN1073
EXAMINATION-IN-CHIEF BY MR TERZIC PN1073
CROSS-EXAMINATION BY MR MOIR PN1116
THE WITNESS WITHDREW PN1122
EXHIBIT #T4 BUNDLE OF FAXED DOCUMENTS DATED 26/03/2007 PN1124
TONY MAVROMATIS, RECALLED ON FORMER OATH PN1132
RE-EXAMINATION BY MR TERZIC PN1132
EXHIBIT #T5 LETTER DATED 26/03/2007 PN1176
FURTHER CROSS-EXAMINATION BY MR MOIR PN1209
THE WITNESS WITHDREW PN1293
TONY MAVROMATIS, RECALLED PN1303
FURTHER CROSS-EXAMINATION BY MR MOIR, CONTINUING PN1303
RE-EXAMINATION BY MR TERZIC PN1439