BP2007/2428, Transcript of Proceedings [2007] AIRCTrans 189 (17 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16725-3

COMMISSIONER SIMMONDS

BP2007/2428 BP2007/2430 BP2007/2457

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
SKILLED GROUP 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 GROUP LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2457)

MELBOURNE

THURSDAY, 29 MARCH 2007

Continued from 28/03/2007

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

PN2233

THE COMMISSIONER: Yes, Mr Taylor.

PN2234

MR C TAYLOR: Thank you, Commissioner. Firstly we rely upon our written submissions that were filed on 19 March 2007 and we ask that they be marked.

PN2235

THE COMMISSIONER: Yes.

EXHIBIT #CT1 SUBMISSIONS OF AIG

PN2236

MR TAYLOR: Thank you, Commissioner. We note that counsel for Busicom has provided a very detailed submission already in this matter and we endorse and adopt those submissions. The issues have been well ventilated in both written and oral submissions.

PN2237

THE COMMISSIONER: Well, how can you adopt those submissions in respect of Skilled? In respect of the evidentiary matters?

PN2238

MR TAYLOR: I’m sorry, Commissioner, in respect of the submissions in relation to the relevant case law and the meaning of that case law and its application to the facts before us.

PN2239

THE COMMISSIONER: I’m sorry, that’s not T1. It will have to be CT1. Sorry.

PN2240

MR TAYLOR: I merely just point out that we’ve - - -

PN2241

THE COMMISSIONER: Well, how am I to distinguish what it is that you’re relying on? I mean, you’ve clutched something from the air, it seems to me, and those submissions, some of them were specifically related to the evidence in respect of Busicom, some were in relation to general matters, specifically in regard to the 461(1) matters that went to evidence of what was occurring vis-a-vis the AMWU and Busicom and I can’t see how I can, any of those submissions. And if there are some bits of them I’d ask you to identify them. Now, in regard to the matters - sorry, I need to qualify that.

PN2242

That’s in regard to those matters that went to the argument that there was no genuine attempt to reach agreement other than that part of the argument that went to the existence of alleged prohibited content which in its own way is the argument that there was no genuine attempt to reach agreement because such an agreement can’t exist. Now, I can understand that in regards to the prohibited content. I can understand if you’re adopting - and I really do have to ask this - if the AI Group is adopting the argument about the uncertainty of the questions to be put.

PN2243

Because if you’re adopting that argument I have to ask have you adopted that argument when similar questions have been put in the past and if you do adopt that argument, are you prepared to provide assistance to the Commission in framing questions, should the Commission be convinced to go to ballot, are you prepared to provide assistance to the Commission in framing questions that would overcome those objections? Now, I think I made myself clear.

PN2244

MR TAYLOR: Yes.

PN2245

THE COMMISSIONER: And I want you to make yourself clear in response to that.

PN2246

MR TAYLOR: Thank you, Commissioner. In relation to the submissions made on prohibited content we adopt the submissions that have been made about the relevant case law and I will come to deal with particular matters related to prohibited contact that we raise for Skilled. In relation to the submissions already made about case law concerning the meaning of genuinely trying to reach agreement and the role of the Commission in this matter to assess the evidence before it and come to a finding as to whether the - - -

PN2247

THE COMMISSIONER: So it’s the submissions in regard to the case law and in regard to that matter?

PN2248

MR TAYLOR: That's right, Commissioner.

PN2249

THE COMMISSIONER: Okay, I understand that, right.

PN2250

MR TAYLOR: So I adopt that. I’m really just trying to short cut the hearing.

PN2251

THE COMMISSIONER: No, I appreciate - I’m all in favour of brevity. We haven’t had much of it.

PN2252

MR TAYLOR: Thank you. Turning to the third point that you raised, in relation to the wording of the orders it’s not our position as AI Group that we have a particular concern about the wording. We note that it has been used before by the AMWU, but we do support Busicom’s counsel in pointing out that there was an inconsistency within the draft orders and the two points that I think - - -

PN2253

THE COMMISSIONER: I don’t think he said there’s an inconsistency, I think he said there was an ambiguity.

PN2254

MR TAYLOR: And an inconsistency between what they first asked for in the orders and then what was asked for - - -

PN2255

THE COMMISSIONER: Well, I must confess if you support that I’m going to have to ask you to take me to it because I couldn’t see it frankly.

PN2256

MR TAYLOR: Okay. Excuse me, Commissioner, I'll just get my notes.

PN2257

THE COMMISSIONER: You don’t have to do it now, you can do it later, but it’s just that’s something that I'll alert you to when you get there.

PN2258

MR TAYLOR: Certainly. But just to finish the point there, as I understood it counsel was submitting that there could be more clarity about which employees are going to take the action and the scope, the area of the operations - - -

PN2259

THE COMMISSIONER: No, that’s what he said, yes. You support that, do you?

PN2260

MR TAYLOR: I say that that could, the Commission if - - -

PN2261

THE COMMISSIONER: No, I’m asking whether your client supports the submission that was put on that matter.

PN2262

MR TAYLOR: We support it to the extent that it adds clarity to the orders.

PN2263

THE COMMISSIONER: No. He was not - well, that wasn’t his submissions. If that’s all you’re saying then I’m going to ask you if you think the order should be clearer you provide me with the words, if we get to that stage of having to issue orders. Because I’m sure that the AI Group is not going to take the position that counsel for Busicom Limited did and say that it’s not its position to assist the Commission in framing orders.

PN2264

MR TAYLOR: No, Commissioner.

PN2265

THE COMMISSIONER: Now, I’m positive of that.

PN2266

MR TAYLOR: But I am just putting forward that if further clarity can be gained by slight rewording - - -

PN2267

THE COMMISSIONER: Yes, well then let’s know about it.

PN2268

MR TAYLOR: That's right.

PN2269

THE COMMISSIONER: Let’s know about it. I’m all in favour of that.

PN2270

MR TAYLOR: Thank you, Commissioner.

PN2271

THE COMMISSIONER: Okay. Well, I think I understand what you’re saying. So let’s get on with it.

PN2272

MR TAYLOR: So really I just wanted to build on, if you like, the case law and submissions that have already been put before the Commission and draw your attention to some matters of fact relating to Skilled in relation to the failure of the unions to show that they’ve genuinely tried to reach agreement with Skilled in their applications.

PN2273

MR R EL DAGHL: Could I just interrupt at that point? I’m having difficulty hearing the Commissioner. I can hear Mr Taylor very clearly, but Commissioner, your comments are cutting in and out.

PN2274

THE COMMISSIONER: I’m not sure I can assist at all. This is being done for you convenience, Mr El Daghl, and the position is that we have got the best technology that’s available to the Commission at the moment.

PN2275

MR EL DAGHL: I understand that, Commissioner. I’m just raising the point because I am missing some of your comments.

PN2276

THE COMMISSIONER: I hear what you say. Well, I can’t do anything about it.

PN2277

UNIDENTIFIED SPEAKER: Commissioner, I’m just looking at the cords here to see whether any are loose.

PN2278

THE COMMISSIONER: No, no. Don’t touch anything, please. We’ve got what’s called a temporary link. You can’t see it, Mr El Daghl, but we’ve got a couple of screens on the wall which is the permanent link, but it’s not working and so we’ve got what’s called a temporary link in here for you today and I’m sorry, I can’t do any better. If there is - - -

PN2279

MR EL DAGHL: I might just point out I heard all of that without any difficulty. It’s just cutting in and out from time to time.

PN2280

THE COMMISSIONER: Well, I can’t do any more about it.

PN2281

MR EL DAGHL: Yes. Thank you, Commissioner.

PN2282

THE COMMISSIONER: So I appreciate the difficulty you’re under, bear in mind it’s the same difficulty we’re under at this end. Yes, Mr Taylor.

PN2283

MR TAYLOR: Thank you, Commissioner. The unions have said that they have commenced these applications to put pressure on Coles Myer and Schaefer to increase wage rates for employees of contractors at the Somerton site. But we submit that on this basis alone that demonstrates that the negotiations are not genuine. We also note, as conceded by the union -

PN2284

THE COMMISSIONER: I’m sorry, what’s the evidence of that?

PN2285

MR TAYLOR: It was in Mr Terzic’s submissions.

PN2286

THE COMMISSIONER: In his written submissions?

PN2287

MR TAYLOR: Oral submissions yesterday. He said that this in their view was the only way to put pressure on Coles Myer and Schaefer to increase wage rates.

PN2288

THE COMMISSIONER: Well, that’s not my recollection of it, but okay. The transcript will tell us if that’s correct. Clearly if it’s not correct then that submission falls away.

PN2289

MR TAYLOR: Yes, Commissioner.

PN2290

THE COMMISSIONER: Okay.

PN2291

MR TAYLOR: We also note that as conceded by the unions Skilled is just about to complete all work at the site. There will be no Skilled employees at the site to take any industrial action that may be initiated if a secret ballot is held and there are still employees at the site and they’re both in favour of the industrial action. On this basis we submit - - -

PN2292

THE COMMISSIONER: When do you say they’re not going to be there? What’s the evidence? I mean, I know it’s a relatively short period. What do you say is the final day for Skilled to be there?

PN2293

MR TAYLOR: It’s not completely - - -

PN2294

THE COMMISSIONER: No, what evidence is there before the Commission to support the proposition that you’ve just put?

PN2295

MR TAYLOR: The unions’ witnesses both said in no uncertain terms that they knew that there were very few employees at the site at present - - -

PN2296

THE COMMISSIONER: Yes, I understand that.

PN2297

MR TAYLOR: And that the Skilled work was coming to an end very shortly.

PN2298

THE COMMISSIONER: But see, the chances are that a ballot can be concluded by the conclusion of the week of 6 April. Are you saying that Skilled won’t be there by then?

PN2299

MR TAYLOR: That's correct, Commissioner.

PN2300

THE COMMISSIONER: Where’s the evidence of that?

PN2301

MR TAYLOR: It’s merely through the union - - -

PN2302

THE COMMISSIONER: They didn’t say, there were no dates.

PN2303

MR TAYLOR: Commissioner, we make the submission.

PN2304

THE COMMISSIONER: But your submission has got to have some evidentiary basis, Mr Taylor.

PN2305

MR TAYLOR: We say the evidentiary basis is the unions have conceded that that is the case in the evidence that they’ve given.

PN2306

THE COMMISSIONER: What, they conceded there would be no Skilled workers there prior to 8 April?

PN2307

MR TAYLOR: Within a very short period of time.

PN2308

THE COMMISSIONER: I know they said within a very short period of time, but does that mean 8 April?

PN2309

MR TAYLOR: No, Commissioner.

PN2310

THE COMMISSIONER: Well, I just don’t understand. I don’t understand your submission.

PN2311

MR TAYLOR: My submission is simply that, that the work is coming to an
end - - -

PN2312

THE COMMISSIONER: Yes, I understand the work’s coming to an end, but your submission went one step further than that. It said there would be no workers there if a secret ballot was held or alternatively there would be no workers there to take industrial action should the secret ballot be held and be successful.

PN2313

MR TAYLOR: Yes, Commissioner, and I'll say that that is - - -

PN2314

THE COMMISSIONER: That requires some evidence that at the time the secret ballot is held there will be no workers there, or at the time, the earliest possible time after a secret ballot is declared that industrial action can take place. And I think it’s 36 hours, isn’t it, after the declaration of the ballot?

PN2315

MR TAYLOR: They have to give a written notice.

PN2316

THE COMMISSIONER: Yes. Well, I said the minimum time.

PN2317

MR TAYLOR: Yes, Commissioner.

PN2318

THE COMMISSIONER: That there would be no workers there. Now, there’s just no evidence that that’s the case, is there?

PN2319

MR TAYLOR: Well, Commissioner, we just simply rely upon the concessions made by the union.

PN2320

THE COMMISSIONER: Yes, but the concessions don’t produce that result, do they?

PN2321

MR TAYLOR: Not to the specific date, Commissioner.

PN2322

THE COMMISSIONER: So what you’re really saying is that the probability or the possibility is that there will be no workers to either vote or to take industrial action?

PN2323

MR TAYLOR: Yes, Commissioner.

PN2324

THE COMMISSIONER: I understand that.

PN2325

MR TAYLOR: And that that is within the knowledge of the union.

PN2326

THE COMMISSIONER: Well, it’s a possibility and it’s within the knowledge of the Commission, yes.

PN2327

MR TAYLOR: Excuse me, Commissioner. So it’s on that basis that we say pursuit of the applications is fruitless in this matter.

PN2328

THE COMMISSIONER: Is that a reason for not granting the application?

PN2329

MR TAYLOR: We say that that goes to the fact that they’re not genuinely trying to reach agreement with Skilled in a situation where - - -

PN2330

THE COMMISSIONER: Well, you’ll have to make that connection for me. I can’t understand that.

PN2331

MR TAYLOR: In a situation where there won’t be any employees to be covered by any proposal - - -

PN2332

THE COMMISSIONER: No, no. There may not be. See, there you go again. There is no evidence to support that proposition that there won’t be any employees.

PN2333

MR TAYLOR: Commissioner, the evidence is that the unions - - -

PN2334

THE COMMISSIONER: No. There is no evidence that there will not be any employees of Skilled, or if there is tell me about it, at the time a ballot is concluded and industrial action, if that ballot supports industrial action, that industrial action can take place. Now, I accept the general proposition that it’s unlikely, but you’ve gone one step further than that and you’ve said that there will not be.

PN2335

MR TAYLOR: Commissioner, my submission is that the union representatives have given evidence that they’re aware that there won’t be any Skilled employees at the site in a very short period of time.

PN2336

THE COMMISSIONER: But that does not make the logical connection that you’re making, that is that at the time a ballot is conducted there won’t be any employees of Skilled.

PN2337

MR TAYLOR: My submission is that there won’t be any need to negotiate a collective agreement if there are no employees at the site.

PN2338

THE COMMISSIONER: Well, that’s right, but there’s no evidence that that will be the case.

PN2339

MR TAYLOR: It is. The unions - - -

PN2340

THE COMMISSIONER: No. Look, you continue to cavil with me and I’m not going to have it. You are unable to produce any evidence whatsoever that there will be no employees of Skilled Engineering within the description contained in the bargaining notice employed at that site at the time a ballot is conducted or at the time, the earliest possible time after a ballot is conducted if that ballot is successful, that action is taken. Now, the best you can say on the evidence - and if you can show me some better evidence let me know about it - the best you can say is that it is probable that there will be no employees at the time industrial action is authorised. That’s the best you can say.

PN2341

MR TAYLOR: And secondly, Commissioner, I can say - - -

PN2342

THE COMMISSIONER: But you keep slipping from saying that into saying there will be no employees and I say to you there is no evidence for that proposition. And if you want to make submissions for which there is no evidence, that’s fine, but they’re going to get short shrift in the decision and I will be saying something about it in the decision. Now, it’s your call.

PN2343

MR TAYLOR: Commissioner, if I could just make the point - - -

PN2344

THE COMMISSIONER: Well, what is the point that you want to make?

PN2345

MR TAYLOR: That the unions are pressing ahead to negotiate an agreement in circumstances where they know that there won’t be any employees that will be covered by the agreement if it is in fact agreed between the company and the unions.

PN2346

THE COMMISSIONER: Well, wouldn’t that depend on when you reach the agreement? I mean, if the company reached an agreement today there would be employees covered by it.

PN2347

MR TAYLOR: That's correct, Commissioner.

PN2348

THE COMMISSIONER: So the unions pressing on seeking - the reality is that the union has, the evidence is that the union has been seeking an agreement with the company that you represent for some time.

PN2349

MR TAYLOR: One of the unions has, yes, and I make the submission - - -

PN2350

THE COMMISSIONER: Yes, okay. Well, I understand that. The evidence is that the AMWU has been seeking an agreement with the company that you represent for some time.

PN2351

MR TAYLOR: Yes, Commissioner.

PN2352

THE COMMISSIONER: So it’s been possible for the company to come to an agreement with the union for that time.

PN2353

MR TAYLOR: Yes, Commissioner.

PN2354

THE COMMISSIONER: Well .....

PN2355

MR TAYLOR: I'll move on to another point.

PN2356

THE COMMISSIONER: How then does the period of time between now and the end of Skilled’s contract affect the genuineness of that?

PN2357

MR TAYLOR: We just simply note the point that - - -

PN2358

THE COMMISSIONER: Well, I thought you were arguing that that made it not genuine. I just don’t understand that submission, that’s what I’m saying.

PN2359

MR TAYLOR: Certainly.

PN2360

THE COMMISSIONER: Leave aside the evidentiary support for it I just don’t understand how it can be said that because Skilled has only got a short time to run its contract that the attempts by AMWU at the least to seek an agreement have not been genuine, which is I understood what your submission was.

PN2361

MR TAYLOR: Yes and that they’re continuing pursuit of these applications.

PN2362

THE COMMISSIONER: Yes.

PN2363

MR TAYLOR: In a circumstance where it’s fruitless.

PN2364

THE COMMISSIONER: No, the pursuit of the applications may turn out to be fruitless, but how does it go to any argument that during the bargaining period and now that the applicant is not genuinely trying to seek agreement?

PN2365

MR TAYLOR: Because we say that there must be some other motive for pursuing it.

PN2366

THE COMMISSIONER: Well, sorry. That may be your argument and you may have some evidence about that that you’re going to bring to me, but it’s a bit late to bring any evidence about it, but I don’t see how the fact, if it be a fact, that Skilled have got a short time to run on that contract in any way detracts from the genuineness of the attempts by the AMWU at least to seek an agreement with Skilled. Now, I don’t understand is what I’m saying. So if there is some connection there, let me know.

PN2367

MR TAYLOR: If the connection being, going back to my first submission in relation to the submission of the unions that they are trying to put pressure on Coles Myer and Schaefer to increase pay rates, we say that that is, together with the fact that they know that Skilled are leaving the site, evidence they’re not genuinely trying to reach agreement, that they’re using these applications as a way to put pressure on Coles Myer and Schaefer. That’s our submission.

PN2368

THE COMMISSIONER: Yes, okay. But if they’re doing that, do you say that that precludes them from genuinely seeking - I mean, if they’re trying to put pressure on the clients of Skilled or the client at second reach from Skilled, does that mean they’re not genuinely trying to reach agreement with Skilled?

PN2369

MR TAYLOR: We say that it does.

PN2370

THE COMMISSIONER: Well, you’ll have to explain the logical connection there too. I mean, someone can be genuinely trying to seek agreement with you and trying to do something else as well.

PN2371

MR TAYLOR: We say that if they’re pursuing the application for an ulterior motive other than trying to reach agreement, that that should be taken into account in determining - - -

PN2372

THE COMMISSIONER: Sorry, I understood that what - maybe I misunderstand your submission entirely. That’s why I’m going into this debate.

PN2373

MR TAYLOR: Certainly, Commissioner.

PN2374

THE COMMISSIONER: I understood that what they were doing was trying to seek an agreement with Skilled and in so doing put pressure on Coles and Schaefer.

PN2375

MR TAYLOR: Yes.

PN2376

THE COMMISSIONER: Well, how does that detract from the genuineness of them seeking agreement with you?

PN2377

MR TAYLOR: Because if they know that - - -

PN2378

THE COMMISSIONER: No, no. See, I’m dealing with the first point of your argument because as you’ve developed it you’re saying that the union has admitted - and I’ve got some doubts about that - but the union has admitted that the only reason they’re seeking an agreement with Skilled is to put pressure on Coles and Schaefer.

PN2379

MR TAYLOR: Schaefer.

PN2380

THE COMMISSIONER: Okay, let’s just accept that that factual evidence is there. How does that mean that they’re not genuinely trying to seek an agreement with you?

PN2381

MR TAYLOR: Because we say that - - -

PN2382

THE COMMISSIONER: I understand you say because that they’ve got another reason.

PN2383

MR TAYLOR: Yes.

PN2384

THE COMMISSIONER: But how does that detract from the genuineness of their approach to Skilled for an agreement?

PN2385

MR TAYLOR: Because - - -

PN2386

THE COMMISSIONER: No.

PN2387

MR TAYLOR: If they know that there will not be any employees there - - -

PN2388

THE COMMISSIONER: Well, that goes to a second bit. Now, your first bit is that they are doing it and therefore that’s not genuine.

PN2389

MR TAYLOR: Yes.

PN2390

THE COMMISSIONER: And I’m asking about that one at the moment.

PN2391

MR TAYLOR: Right.

PN2392

THE COMMISSIONER: That element of your submission.

PN2393

MR TAYLOR: Yes. I say if that is their motive then they’re not genuinely trying to reach agreement with Skilled.

PN2394

THE COMMISSIONER: Why?

PN2395

MR TAYLOR: Because Skilled won’t be there.

PN2396

THE COMMISSIONER: No, that takes us off - see - - -

PN2397

MR TAYLOR: But I’d say that those two points are intertwined.

PN2398

THE COMMISSIONER: Okay. So they’re intertwined and if Skilled’s not going to be there therefore they’re not genuinely trying to seek agreement?

PN2399

MR TAYLOR: That's right.

PN2400

THE COMMISSIONER: When did that cease to be the case?

PN2401

MR TAYLOR: Sorry, what?

PN2402

THE COMMISSIONER: When did that cease to be - when did that become the case I should say? Was it always the case?

PN2403

MR TAYLOR: When the unions had knowledge that - - -

PN2404

THE COMMISSIONER: Well, they had knowledge that Skilled were going to go at some stage anyhow. They’ve always had knowledge that the contract with Schaefer was a finite contract, temporarily finite contract.

PN2405

MR TAYLOR: Right and - - -

PN2406

THE COMMISSIONER: So at what point did their approach to Skilled become non-genuine?

PN2407

MR TAYLOR: I say when they had knowledge that when the employees would be leaving the site that there would not be any reason to have a collective agreement.

PN2408

THE COMMISSIONER: So when was that? Where is the evidence and when was it?

PN2409

MR TAYLOR: I can’t give you an exact date, Commissioner.

PN2410

THE COMMISSIONER: No, no. But where’s the evidence that that’s the case? I mean, where is the evidence that the union became, at what particular point in time that the union became aware that they were leaving the site?

PN2411

MR TAYLOR: I don’t have that evidence, Commissioner.

PN2412

THE COMMISSIONER: Because I put it to you, I put it to you that the union has no knowledge and there is no evidence other than a general statement that in the near future, or words to that effect, Skilled will have no one on the site and that’s the evidence before the Commission from the union.

PN2413

MR TAYLOR: Commissioner, I say that the evidence from the union is that they know that - - -

PN2414

THE COMMISSIONER: No, the evidence before the Commission is that in the near future, or words to that effect, is the period of time when Skilled will have no one on the site.

PN2415

MR TAYLOR: Yes.

PN2416

THE COMMISSIONER: Now, whatever that means.

PN2417

MR TAYLOR: And the union has discussions with its members, presuming that there are members at the site.

PN2418

THE COMMISSIONER: No, here we guess. Evidence. Who said that?

PN2419

MR TAYLOR: No. I’m just .....

PN2420

THE COMMISSIONER: You’re just asserting it. Yes, I know you’re asserting it. But where is the evidence of this?

PN2421

MR TAYLOR: Commissioner, I say the evidence is in the evidence of the union representatives as to their knowledge of the closure of Skilled’s operation.

PN2422

THE COMMISSIONER: Yes, at some time in the near future.

PN2423

MR TAYLOR: Yes, Commissioner.

PN2424

THE COMMISSIONER: Is the best that you can hope for.

PN2425

MR TAYLOR: Yes, Commissioner.

PN2426

THE COMMISSIONER: Well, where does that take us? So at what point did it become no longer - see, as I understand your submission it’s like this. You say that (a) they’re putting pressure on Coles and Schaefer and that that, I think you agree with me that that of itself would not mean that they weren’t bargaining genuinely with Skilled and the element that makes it a non-genuine attempt to get an agreement, a sham, is that they know that Skilled aren’t going to be on the site at the time that any industrial action takes place, if industrial action be supported by a secret ballot.

PN2427

MR TAYLOR: Yes, Commissioner.

PN2428

THE COMMISSIONER: And that’s what makes it. Now, that hasn’t always been the case, has it? If this application had been dealt with in the normal course of events within time that submission could not have been made.

PN2429

MR TAYLOR: You mean two months ago?

PN2430

THE COMMISSIONER: When the application was made on 26 February.

PN2431

MR TAYLOR: So you are going to assess - - -

PN2432

THE COMMISSIONER: No, you’re about to argue with me and I don’t like that.

PN2433

MR TAYLOR: I’m not arguing.

PN2434

THE COMMISSIONER: No, but you’re about to. So that on 26 February when the application was lodged are you saying that it was the evidence before me now that they knew that no ballot could be conducted and no industrial action could be taken while Skilled was on the site?

PN2435

MR TAYLOR: No, Commissioner. I asked you to take into account the evidence during the hearing.

PN2436

THE COMMISSIONER: No, I understand that. Yes, okay. So my question to you was when did it become non-genuine for that reason?

PN2437

MR TAYLOR: When the witnesses from the union said in the witness box that they were aware as a matter of fact that Skilled was downsizing rapidly and about to leave the site. And yet they’ve continued with the applications.

PN2438

THE COMMISSIONER: But how does the continuation of the application make the approach for an agreement non-genuine?

PN2439

MR TAYLOR: Because the reason for the application is in pursuit of the negotiations of the agreement.

PN2440

THE COMMISSIONER: But isn’t it just as possible that they believe they will be able to take industrial action again? I mean, if it is fruitless I don’t know why they’re doing it, but you know that - - -

PN2441

MR TAYLOR: I think maybe that answers the question, Commissioner, is exactly that point. I just make that observation - - -

PN2442

THE COMMISSIONER: No, because if it is fruitless why would they be doing it?

PN2443

MR TAYLOR: Well, that’s exactly my point, Commissioner.

PN2444

THE COMMISSIONER: No. How does it put pressure on Coles or Schaefer? How does the continuation of this proceeding against Skilled put pressure? I just don’t understand how it puts pressure on Schaefer or Coles.

PN2445

MR TAYLOR: I don’t know what the unions’ thinking is, I’m just saying that if it indicates another motive then that goes towards whether they’re still genuinely trying to reach agreement.

PN2446

THE COMMISSIONER: I understand it might go towards it and I thought you’re saying that it meant that it didn’t. Mr Terzic?

PN2447

MR B TERZIC: I’m a bit loathe to interrupt the normal flow of things, but I
do - - -

PN2448

THE COMMISSIONER: Well, that’s hardly a normal flow.

PN2449

MR TAYLOR: I do say to be in the interest of fairness to Mr Taylor because this morning I sent an email to the Commission and the parties indicating that there be two further authorities under which I would use in reply and I think it’s fair that I bring to Mr Taylor’s attention, and Mr El Daghl’s, attention an authority that might undermine the submission he wants the Commission to adopt. So he should then be able to either distinguish the authority or say it was wrong. The authority is the West Australian Ballet matter. I’ve got a copy and I'll give one to my friend and I’ve got a spare on here that I can hand up to the Commission if there’s not one at hand. I’d just like to point - - -

PN2450

MR TAYLOR: Can I have an opportunity? I ask for an adjournment so I can read this decision.

PN2451

THE COMMISSIONER: Well, let’s hear what he’s got to say and then you can.

PN2452

MR TERZIC: I'll just point out the relevant passages. It’s an application for a ballot and one of the grounds advanced by the respondent there was that the relevant union, that’s the MEAA - now, I’m looking at paragraph 9 and I’m looking after the word “secondly” as they appear about half way through the paragraph:

PN2453

And it was advanced by the respondent that secondly it contended that MEAA is not concerned about reaching agreement with it for wage increases and that it is concerned with securing from the government sufficient funding for West Australian Ballet to meet its wages obligations.

PN2454

I end the quote there and that’s a little bit analogist that the union realises that by having industrial action take place at the Schaefer site the pressure will go back through the system to Coles because they will find it difficult to get their warehouse built. We realise that dynamic. That’s an unremarkable dynamic would apply on any construction site when action is taken against a contractor, or if Skilled or any action against Skilled where its clients were to come to a halt. Now, the presiding member of the Commission, Lacy SDP, dealt with that notion at paragraph 13 and I'll just leave it to the parties to read themselves. But the essence of my submission was his Honour did not say that such a dynamic was in any way fatal to a union establishing that it was genuinely trying to reach agreement.

PN2455

In fact, my submission on all of this is it shows a greater degree of genuineness in the union. We are trying to get an agreement through hook or quill using all lawful means available to the union to try and - - -

PN2456

THE COMMISSIONER: Don’t make a submission in reply now.

PN2457

MR TERZIC: Yes.

PN2458

MR EL DAGHL: Commissioner? Commissioner, can I just point out just in fairness to Mr Taylor as well. Paragraph 15 of that same judgment the Commissioner says:

PN2459

If the WAB - - -

PN2460

THE COMMISSIONER: I’m sorry, it’s not a Commissioner. Sorry,
Mr El Daghl, it’s not a Commissioner. It’s a Senior Deputy President.

PN2461

MR EL DAGHL: I apologise, Commissioner. I’ve only just received this very early this morning.

PN2462

THE COMMISSIONER: No, I appreciate that.

PN2463

MR EL DAGHL: I browsed through it quickly. But the first sentence at paragraph 15, it says:

PN2464

If it had a collateral purpose of harming the government it would almost certainly be unlawful.

PN2465

I'll just point that out for Mr Taylor’s benefit. I understand that these submissions have nothing to do with my client.

PN2466

THE COMMISSIONER: Yes. You’re getting all this gratuitous help,
Mr Taylor.

PN2467

MR TAYLOR: I am and I didn’t even ask for it.

PN2468

THE COMMISSIONER: You want some time?

PN2469

MR TAYLOR: Commissioner, I think we can move on from this point. I mean, we’re well placed to read that decision and apply it to the submissions I have made this morning. Actually, if I could just take a moment to read it.

PN2470

THE COMMISSIONER: We won’t take a formal adjournment. We’ll just go off record.

PN2471

MR TAYLOR: Thank you, Commissioner.

PN2472

THE COMMISSIONER: You want to go outside do you?

OFF THE RECORD

PN2473

MR TAYLOR: Commissioner, I will move on from this point.

PN2474

THE COMMISSIONER: Yes, thanks Mr Taylor.

PN2475

MR TAYLOR: I understand from the previous hearing in the matter where evidence was also given that some of those concessions were made by the union witnesses there and if that is the case we seek to rely upon those concessions in relation to the involvement of Coles Myer and Schaefer and discussions the union have had about that and also their knowledge of the closure of Skilled’s involvement in the project.

PN2476

THE COMMISSIONER: Yes, go on.

PN2477

MR TAYLOR: Moving on, Commissioner. We say that the CFMEU’s application in this matter is even more flawed because Mr Travis in evidence admitted that the CFMEU did not ever meet with the company to negotiate a new proposed workplace agreement. Mr Travis never met with Skilled’s industrial manager, Paul Borobokas, before the application was filed in this matter. The only meetings that Mr Travis had with Skilled had was with Mr Wise, a supervisor who didn’t have authority to negotiate the agreement. But according to Mr Travis the four occasions that he says he met with Mr Wise he said he did not talk about a proposed agreement.

PN2478

And so on this basis we say the CFMEU has not shown to the Commission that it has genuinely tried to reach agreement with Skilled. We also note that the CFMEU has not proven that it currently has any members at the site that would be covered by any agreement that might be negotiated.

PN2479

THE COMMISSIONER: He gave evidence that they did.

PN2480

MR TAYLOR: No he didn’t, Commissioner. In cross-examination he said he didn’t know whether there were actually any members of - - -

PN2481

THE COMMISSIONER: Well, what he said is that he couldn’t be sure about today, but the day before there were because he hadn’t been to the site that day.

PN2482

MR TAYLOR: I don’t recall that response, Commissioner, but I'll take it that was the response. Then we say that they ..... sorry, Commissioner? Was that - - -

PN2483

THE COMMISSIONER: It’s all right.

PN2484

MR TAYLOR: Just turning to the arguments in relation to pattern bargaining being involved here. We refer to our written submissions and we simply add that Mr Travis’ evidence - - -

PN2485

THE COMMISSIONER: Okay. If we’re going to written submission on this I really have to - are you saying that they are taking pattern bargaining?

PN2486

MR TAYLOR: Yes, Commissioner.

PN2487

THE COMMISSIONER: Right. Let’s go through 421 of the Act and see why it is you say that because I have some difficulty following the written submissions. Now, you say that they’ve engaged in a course of conduct which involves seeking wages or conditions of employment for two or more of those agreements. What’s that course of conduct?

PN2488

MR TAYLOR: Commissioner, are you looking at - - -

PN2489

THE COMMISSIONER: I’m looking at paragraph 14.

PN2490

MR TAYLOR: Sorry, of the submissions?

PN2491

THE COMMISSIONER: Of your submissions.

PN2492

MR TAYLOR: Yes. Thank you, Commissioner.

PN2493

THE COMMISSIONER: What’s the course of conduct we’re talking about?

PN2494

MR TAYLOR: The evidence from Mr Travis was that he was waiting for Terry Bradley from the AMWU to negotiate an agreement with Skilled and that the CFMEU would seek an agreement in the same terms.

PN2495

THE COMMISSIONER: But who’s the person who’s the negotiating party? Travis.

PN2496

MR TAYLOR: No, the unions.

PN2497

THE COMMISSIONER: Okay.

PN2498

MR TAYLOR: Yes.

PN2499

THE COMMISSIONER: To two or more proposed collective agreements. What evidence is there that the CFMEU was a negotiating party to two or more proposed collective agreements?

PN2500

MR TAYLOR: Well, no, in fact it was the AMWU that was negotiating an agreement which the CFMEU was going to adopt the same terms and conditions.

PN2501

THE COMMISSIONER: No. Look, for the purposes of this part let’s go back to 421(1).

PN2502

MR TAYLOR: Yes, Commissioner.

PN2503

THE COMMISSIONER: What is pattern bargaining:

PN2504

For the purposes of this Part, a course of conduct by a person is pattern bargaining if (a) the person is a negotiating party to 2 or more proposed collective agreements.

PN2505

MR TAYLOR: Yes.

PN2506

THE COMMISSIONER: Now, which person are we talking about?

PN2507

MR TAYLOR: The AMWU and the CFMEU.

PN2508

THE COMMISSIONER: No. Which person are we talking about? A person, singular:

PN2509

The person is a negotiating - - -

PN2510

MR TAYLOR: Well, the AMWU.

PN2511

THE COMMISSIONER: Okay, I can accept that.

PN2512

MR TAYLOR: Yes.

PN2513

THE COMMISSIONER: Now, are you saying it’s also the CFMEU though?

PN2514

MR TAYLOR: No.

PN2515

THE COMMISSIONER: Right, okay. Now I understand. Sorry, I thought you were talking about Mr Travis, but you’re not.

PN2516

MR TAYLOR: But the reason I’m talking about Mr Travis is his evidence that that was the case, that the AMWU was - - -

PN2517

THE COMMISSIONER: Well, his evidence was that the AMWU was seeking agreement with Skilled.

PN2518

MR TAYLOR: Yes and that the CFMEU would adopt the same.

PN2519

THE COMMISSIONER: Well, that may be so, but who’s caught - let’s go back. That’s not necessarily pattern bargaining. The same person has got to be conducting two or more.

PN2520

MR TAYLOR: Yes.

PN2521

THE COMMISSIONER: The fact that two unions are seeking a common outcome doesn’t make it pattern bargaining. Quite clearly the Act allows unions to be seeking the same outcome from a single business. That’s not pattern bargaining. Pattern bargaining, as I understand it, is where one person is negotiating party to two or more collective agreements and they seek common wages or conditions of employment for two or more of those proposed collective agreements and the course of conduct extends beyond a single business. That’s what the definition is. It’s not the fact that two persons seek a common outcome. It’s the fact that one person seeks a common outcome from more than one business. That’s right, isn’t it? That’s what the Act says.

PN2522

MR TAYLOR: Well, Commissioner, I read it that if the AMWU here are seeking, satisfying subsection (a), two or more proposed collective agreements and that they’re seeking common wages and conditions because they’re identical agreements.

PN2523

THE COMMISSIONER: Yes, that’s right.

PN2524

MR TAYLOR: Yes.

PN2525

THE COMMISSIONER: But how does Mr Travis get into it?

PN2526

MR TAYLOR: Just simply that his evidence - - -

PN2527

THE COMMISSIONER: No, you were saying the CFMEU was doing it to.

PN2528

MR TAYLOR: Yes, Commissioner, I’ve corrected myself.

PN2529

THE COMMISSIONER: I’m sorry, okay. So the fact that they’re seeking an agreement from Busicom and they’re seeking an agreement from Skilled makes
it - - -

PN2530

MR TAYLOR: Yes, that’s one element.

PN2531

THE COMMISSIONER: Yes. I can accept that they meet the definition. The issue is whether the exception is excluded.

PN2532

MR TAYLOR: Right and can I make - my other submission is that the AMWU was negotiating an agreement with Skilled which the CFMEU was going to adopt as the same terms and conditions.

PN2533

THE COMMISSIONER: How does that become pattern bargaining under the definition?

PN2534

MR TAYLOR: We simply say that that’s - - -

PN2535

THE COMMISSIONER: No, you can simply say it, but how does it - how, if the CFMEU picks up the deal that Skilled might do with the AMWU, how does that become pattern bargaining under that definition?

PN2536

MR TAYLOR: Because we say that the AMWU was seeking common wages and conditions in two or more collective agreements.

PN2537

THE COMMISSIONER: Okay, that takes us to the AMWU. It doesn’t take us to the CFMEU. You keep saying that because the CFMEU is picking it up. The AMWU is only - let’s leave Busicom out of it for the moment. If the negotiation was only with Skilled then there wouldn’t be pattern bargaining, would there?

PN2538

MR TAYLOR: Well, we say that there is.

PN2539

THE COMMISSIONER: How?

PN2540

MR TAYLOR: Because of the same terms and conditions being sought.

PN2541

THE COMMISSIONER: By whom?

PN2542

MR TAYLOR: By the AMWU.

PN2543

THE COMMISSIONER: Who are they seeking the same terms and conditions from?

PN2544

MR TAYLOR: Skilled.

PN2545

THE COMMISSIONER: On whose behalf?

PN2546

MR TAYLOR: Their members and that the CFMEU was going to adopt those same - - -

PN2547

THE COMMISSIONER: That’s got nothing to do with the AMWU if the CFMEU does it.

PN2548

MR TAYLOR: Well, the evidence was that they had discussions to arrange that.

PN2549

THE COMMISSIONER: Well, that just may be, but a person, the person who is the negotiating party to two or more proposed collective agreements, how can the AMWU be a negotiating party to a collective agreement between the CFMEU and Skilled? It can’t, can it?

MR TAYLOR: In the same capacity that they’re here representing - - -

PN2550

THE COMMISSIONER: No, no. They’re here as an agent. They are not here as a negotiating party, they’re here as an agent. A very clear distinction in law. You know, they’re a negotiating party. It’s a person.

PN2551

MR TAYLOR: Yes, Commissioner.

PN2552

THE COMMISSIONER: I think that’s stretching pattern bargaining too far. I mean, clearly - I mean, if you’re saying, and you’re surely not, that to avoid pattern bargaining if there is more than one union on a site they’ve all got to have a different agreement.

PN2553

MR TAYLOR: No, Commissioner.

PN2554

THE COMMISSIONER: Or be seeking a different agreement. They don’t actually end up with one agreement, but at the point of negotiations they’ve all got to be seeking a different agreement.

PN2555

MR TAYLOR: They should be negotiating with the company for an agreement and we say that - - -

PN2556

THE COMMISSIONER: Yes, but they’ve all got to be different. Their approaches have all got to be different on your argument. That’s just not right.

PN2557

MR TAYLOR: No, but they should be putting to the company that the CFMEU seeks an agreement in these terms.

PN2558

THE COMMISSIONER: Well, I’m sure the CFMEU would have done that at some point, probably after the AMWU had negotiated the agreement. In fact I think that was Mr Travis’ evidence.

PN2559

MR TAYLOR: Yes, Commissioner. Well, we say that they weren’t doing that previously.

PN2560

THE COMMISSIONER: Well, where’s the evidence of that? Because I think Mr Travis said he was happy for the AMWU to negotiate agreement and they would then come along and pick up a similar agreement that was the thrust of his evidence.

PN2561

MR TAYLOR: Yes, Commissioner.

PN2562

THE COMMISSIONER: Now, if you’re saying that some how or other that the AMWU was authorised to act for the CFMEU in the negotiation of that agreement, and I think that is what you’re saying, (a) I don’t think that makes them a second, you know, negotiating two agreements and (b) I don’t think that’s the evidence anyhow.

PN2563

MR TAYLOR: If that’s your position.

PN2564

THE COMMISSIONER: Well, I don’t think it’s the evidence. I mean, it may be that the evidence is that the CFMEU authorised the AMWU to negotiate on their behalf.

PN2565

MR TAYLOR: That would be one way to perceive the evidence.

PN2566

THE COMMISSIONER: Well, that could be the only way. That would be the only way. And if the AMWU was authorised to negotiate on behalf of the CFMEU then they wouldn’t be a negotiating party to two or more.

PN2567

MR TAYLOR: Who wouldn’t, the AMWU?

PN2568

THE COMMISSIONER: Yes. The CFMEU’s the negotiating party who just happen to have the AMWU doing the work for them.

PN2569

MR TAYLOR: Right. I take the point, Commissioner.

PN2570

THE COMMISSIONER: I mean, at the end of the day the agreement’s not going to be with the AMWU, is it?

PN2571

MR TAYLOR: No.

PN2572

THE COMMISSIONER: It’s going to be with the CFMEU.

PN2573

MR TAYLOR: That's correct, Commissioner.

PN2574

THE COMMISSIONER: Well, let’s .....

PN2575

MR TAYLOR: I'll just take a moment to take instructions.

PN2576

THE COMMISSIONER: Yes.

PN2577

MR TAYLOR: Commissioner, before I move on to the next point if I could just ask you to take into account that the evidence of Mr Mavromatis was that in his view Skilled employees ought to be covered by their MECA agreement, being the AMWU’s MECA agreement, thereby asserting that that would include CFMEU members.

PN2578

THE COMMISSIONER: Yes, okay, I understand what you’re saying.

PN2579

MR TAYLOR: Thank you, Commissioner. In relation to prohibited content - - -

PN2580

THE COMMISSIONER: No, sorry. The pattern bargaining, is that the extent of it? I mean, are you saying that because they’ve lodged - - -

PN2581

MR TAYLOR: Yes, I think I’ve exhausted our argument.

PN2582

THE COMMISSIONER: Well, that’s the bit I didn’t understand. You see, at paragraph 22 you talk about:

PN2583

Currently the AMWU and the CFMEU are engaged in a course of conduct of pursuing common claims in a large number of negotiations for collective workplace agreements.

PN2584

Where’s the evidence of that? You see, a whole lot of stuff in here for which I’m not sure there’s any evidence here before me.

PN2585

MR TAYLOR: Yes, Commissioner. You’re correct in saying there is no evidence in a large number of negotiations. Perhaps I can narrow that.

PN2586

THE COMMISSIONER: And at paragraph 20 you say:

PN2587

Statistics extracted from the workplace agreements database -

PN2588

Et cetera. Well, those statistics aren’t even before me. They haven’t been evidenced.

PN2589

MR TAYLOR: Yes, Commissioner. We won’t rely upon that paragraph.

PN2590

THE COMMISSIONER: Right. Now, at paragraph 24 you talk about an AMWU bargaining. That’s not before me, is it?

PN2591

MR TAYLOR: I'll just take instructions. No, Commissioner.

PN2592

THE COMMISSIONER: Now, you also say:

PN2593

The evidence of the unions themselves establishes the particular union organisers are currently pursuing a course of conduct in pursuing a common claim that the freezing of Award conditions must not of a workplace including Skilled Group.

PN2594

Was that the evidence?

PN2595

MR TAYLOR: No, Commissioner.

PN2596

THE COMMISSIONER: Yes, okay. So I have to really make the best I can out of this, do I?

PN2597

MR TAYLOR: No, Commissioner, if you could consider the submissions that I’ve put today in relation to this point.

PN2598

THE COMMISSIONER: Yes. Yes, go on.

PN2599

MR TAYLOR: Thank you. In relation to the prohibited content we say that the unions are pursuing a claim for shop stewards or delegates rights and we say that’s prohibited by regulations 8.5(f) and (g).

PN2600

THE COMMISSIONER: Now, where’s the evidence of that?

PN2601

MR TAYLOR: In the notice initiating the bargaining period.

PN2602

THE COMMISSIONER: But hasn’t that been modified by the - well, sorry, I’m not aware of what has been put to Skilled. Perhaps there’s no evidence.

PN2603

MR TAYLOR: That is the evidence, that nothing has been put to Skilled. I’m sorry, you can draw that inference, Commissioner.

PN2604

THE COMMISSIONER: No, I can’t draw that inference at all.

PN2605

MR TAYLOR: Well, okay.

PN2606

THE COMMISSIONER: The only inference I can draw in terms of the evidence in respect of Skilled is about the negotiations, is what I’ve been told that there’d been four meetings or something.

PN2607

MR TAYLOR: Yes.

PN2608

THE COMMISSIONER: The actual detail of what’s been put is the bargaining notice.

PN2609

MR TAYLOR: Yes.

PN2610

THE COMMISSIONER: And in that bargaining notice there’s a clear disclaimer.

PN2611

MR TAYLOR: In the covering letter.

PN2612

THE COMMISSIONER: Yes.

PN2613

MR TAYLOR: Yes.

PN2614

THE COMMISSIONER: So one has to read that bargaining notice with that disclaimer, doesn’t one?

PN2615

MR TAYLOR: But those submissions were dealt with yesterday as far as
the - - -

PN2616

THE COMMISSIONER: But they were being put in - I mean, I think to be fair to Mr Moir when I put that issue to him he - conceded is probably the wrong word - but he accepted that the draft agreement that had been put to Busicom didn’t talk about shop stewards.

PN2617

MR TAYLOR: That's right.

PN2618

THE COMMISSIONER: And that that may well have qualified what was in the bargaining notice.

PN2619

MR TAYLOR: Yes.

PN2620

THE COMMISSIONER: But in the context of the bargaining notice he was saying that the AMWU could not rely on the disclaimer attached to the bargaining notice in respect of that document of the proposed agreement.

PN2621

MR TAYLOR: Yes.

PN2622

THE COMMISSIONER: But there’s no evidence of a proposed agreement with Skilled. All we’ve got is the bargaining notice with a disclaimer.

PN2623

MR TAYLOR: That's right, Commissioner. And as I understand Mr Moir’s submission he said that even though the agreement had been provided it didn’t necessarily conclusively mean that the union had abandoned its claim for the shop steward - - -

PN2624

THE COMMISSIONER: Indeed. I think he saw the difficulty in persisting with that proposition though.

PN2625

MR TAYLOR: Right.

PN2626

THE COMMISSIONER: Because he couldn’t have it both ways because that would then give force to the disclaimer. Because if they hadn’t abandoned the claim for shop stewards that was in the bargaining notice then equally they hadn’t abandoned the disclaimer that was attached to the bargaining notice. That was the difficulty he had with that submission and I tell you that now.

PN2627

MR TAYLOR: Right. We say that there’s no evidence from the unions that they have actually abandoned the claim for shop stewards or union - - -

PN2628

THE COMMISSIONER: No, but there is the evidence that they didn’t want any prohibited content.

PN2629

MR TAYLOR: Right, if that’s the view that you’ve reached.

PN2630

THE COMMISSIONER: No, that is the evidence, isn’t it? See, the same document that you say evidences prohibited content - - -

PN2631

MR TAYLOR: It’s pursuing prohibited content, yes.

PN2632

THE COMMISSIONER: Is the same document as the one that says we don’t want it.

PN2633

MR TAYLOR: That's right.

PN2634

THE COMMISSIONER: That same ball of evidence says that.

PN2635

MR TAYLOR: Yes.

PN2636

THE COMMISSIONER: Now, there might be a conflict there, the nature of the disclaimer and such. But anyhow, I hear your point.

PN2637

MR TAYLOR: Yes.

PN2638

THE COMMISSIONER: And the pursuit of shop stewards and delegates rights, if there be such a pursuit, breaches the regulations?

PN2639

MR TAYLOR: That's correct, Commissioner.

PN2640

THE COMMISSIONER: Yes, I understand the submission.

PN2641

MR TAYLOR: My final submission is just to deal with the proposed amendment for the notice of bargaining period. Now, we say that can’t be made because that would be including prohibited content in the notice because it would be claims for back pay by employees who would not be bound by the proposed agreement and we say that’s not a matter pertaining to the employment relationship between Skilled and the employees that will be covered by the agreement and that’s dealt with in regulation 8.7.

PN2642

THE COMMISSIONER: Yes.

PN2643

MR TAYLOR: And so if industrial action was taken in support of that prohibited content it would be unlawful and so we say that the proposed amendment should not be allowed on that basis. For all the reasons I’ve put - - -

PN2644

THE COMMISSIONER: Wouldn’t it be better to allow it and then they wouldn’t be able to get their protected action?

PN2645

MR TAYLOR: Well, Commissioner, that’s not really the basis upon which we go forward.

PN2646

THE COMMISSIONER: No, I hear you.

PN2647

MR TAYLOR: Look, on the submissions I’ve put today we ask the Commission to refuse the applications by the AMWU and the CFMEU and Skilled in those matters.

PN2648

THE COMMISSIONER: Right. There’s a couple of matters I'll need to put to you. If I was to accede - I mean, these are matters that go to detail - and
Mr El Daghl, I'll need to put these to you too. I’m not sure whether the minimum time table of 26 March from the Australian Electoral Commission has been sent to you. It probably hasn’t.

PN2649

MR TAYLOR: No, Commissioner. Is that the usual 10 day time table?

PN2650

THE COMMISSIONER: Well, it talks about day zero to day eight.

PN2651

MR TAYLOR: Day eight does it? Okay.

PN2652

THE COMMISSIONER: But it’s a bit - I mean, it was predicated on the basis that the Commission would ..... there’s another one? There’s one on 29 March which is today. They’re saying that if I was to make ballot orders today they would require you - and when I say you I include Busicom and I include the union - to provide lists and covering declarations to the Electoral Commission by 5 o'clock tomorrow, the two employers would have to place the ballot agent’s notice in prominent locations by 5 o'clock tomorrow. If you see any difficulties with any of these please let me know. This is far from making a decision on the matter, I just want to know if there’s any practical difficulties.

PN2653

The role of voters would close at 5 pm on Monday. Tuesday and Wednesday would be the two working days from the close of the role to the opening of the ballot. The attendance ballot would open on Thursday, 5 April and the Electoral Commission would do that. I need some indication of the numbers of people likely to be involved. I get the impression it’s a pretty small number. What time does the site commence?

PN2654

MR TAYLOR: Sorry, we don’t know.

PN2655

THE COMMISSIONER: Are you able to help me, Mr El Daghl?

PN2656

MR EL DAGHL: I’m not sure, Commissioner. I think from, my recollection is I may have received the instructions, around about 7 o'clock or maybe a bit earlier, 6.30, but I can’t be sure of that.

PN2657

THE COMMISSIONER: All right. Anyhow, the ballot can’t take place during working hours so it would have to commence at a time prior to the commencement of work. I would have thought given the numbers it could an hour before the commencement of work and also at the lunch break, whatever time that is. That would be sufficient time for the numbers to vote. That it be on site at a location to be provided by Schaefer, I guess, because Skilled and Busicom don’t have any facilities there, do they?

PN2658

MR EL DAGHL: That’s my understanding, they don’t.

PN2659

THE COMMISSIONER: Anyhow, we can overcome that. So the ballot would be conducted and concluded by Thursday, 5 April, we’ve then got some public holidays and things, with a formal declaration on Tuesday, 10 April. Now, aside from the question of the location of where the ballot’s going to be conducted, does anyone foresee any difficulties with that time table?

PN2660

MR EL DAGHL: Commissioner, might I be able to just seek instructions in relation to the first one, the list of employees? I just, I can’t speak on behalf of my client. I’m not sure if they would be able to do that by 5 pm tomorrow, but I can get very quick instructions.

PN2661

THE COMMISSIONER: Yes, I would ask you to do that. They would have to be provided by - I mean, the way the ballot order would be conducted, they’d have to be provided in an Excel format with name, address and a few other things like that and provided electronically to the Electoral Commission.

PN2662

MR EL DAGHL: Yes.

PN2663

THE COMMISSIONER: So it’s a computer game. Now, it would be a question of them providing the names and addresses of the employees at the site. Names, addresses and birth dates, I think - because I don’t foresee a major difficulty
here - excluding those on AWAs. The union then provides a list of its members on the site and the Electoral Office then culls out the non-members and draws up the role. That’s the process.

PN2664

MR EL DAGHL: Yes.

PN2665

THE COMMISSIONER: Now, I understood from the evidence that there’s less than 30 Busicom employees on the site?

PN2666

MR EL DAGHL: That’s my understanding.

PN2667

THE COMMISSIONER: And I’d be surprised if they couldn’t get 30 names by 5 o'clock tomorrow night.

PN2668

MR EL DAGHL: If possible I’d just like to confirm with them.

PN2669

THE COMMISSIONER: No, I'll give you that opportunity.

PN2670

MR TAYLOR: Commissioner, may I? I don’t wish to put evidence before the Commission, but just to answer the question so that we’re up front about what we anticipate will be the numbers taking part in this ballot. We anticipate that there’ll be no employees at the site after Easter.

PN2671

THE COMMISSIONER: Well, they’ll be in the ballot, but they might not be taking any action.

PN2672

MR TAYLOR: That’s it. We just didn’t want to offend the Commission by - - -

PN2673

THE COMMISSIONER: Yes. No, I understand what you’re saying. It’s not evidence, but the reality is they can vote.

PN2674

MR TAYLOR: Yes, Commissioner, but we just didn’t want to frustrate the process.

PN2675

THE COMMISSIONER: Yes. Mr El Daghl, do you want to do that now, get those instructions now?

PN2676

MR EL DAGHL: Yes thank you, Commissioner.

PN2677

THE COMMISSIONER: It just would assist. Yes, we’ll go off record.

PN2678

MR EL DAGHL: Thank you.

OFF THE RECORD

PN2679

THE COMMISSIONER: Yes, Mr El Daghl.

PN2680

MR EL DAGHL: Thank you, Commissioner. That will be fine. There are only 10.

PN2681

THE COMMISSIONER: Yes, okay. Well, that’s no major challenge. Right, well that’s clarified that. Now, is there anything more you’d like to say,
Mr Taylor?

PN2682

MR TAYLOR: No, Commissioner.

PN2683

THE COMMISSIONER: Yes. Mr Terzic.

PN2684

MR TERZIC: Commissioner, I suppose the first issue to be addressed is the application for amendment to the bargaining period.

PN2685

THE COMMISSIONER: Yes.

PN2686

MR TERZIC: I will just ventilate some views about that. The notion of how it will work would mean that employees of Skilled Group who had worked on the site but continued to be employees of Skilled Group because they were a permanent employee that might move to other locations would be eligible to be on the ballot role because the agreement would be directed at work that was performed at the site. We know that the site is coming to an end.

PN2687

THE COMMISSIONER: Can I just say the difficulty I have with that is this. That is almost certainly establishes a position where genuine agreement wasn’t being sought because at no stage was it put, there’s no evidence that at any stage was it put to Skilled that these people should be included.

PN2688

MR TERZIC: Hearing the comments from the bench I withdraw the application.

PN2689

THE COMMISSIONER: That might be the best way to proceed.

PN2690

MR TERZIC: Yes. Now, the next issue to be dealt with is the notion of collateral purpose and I want to make some observations about the lawful economical weapon available to unions. Unions can engage in industrial action at which could cause great expense to employers if they follow various procedures and fulfil particular conditions precedent. One of them is having a ballot application being made and various other things I don’t need to go through. All the parties would be familiar with those processes as would the Commission. But the union, the optimal union strategy is to try and take industrial action in a way that it can put maximum pressure on the recipient employer and in that theme one will hear that it would not be a smart move for a union to undertake a strike when the inventory is full and the order book is empty and the employer would probably say well, go on strike for as long as you like, there’s nothing here for you to do anyway.

PN2691

I, in the course of my duties at the AMWU, had to press for a ballot application for mechanics for ski resorts and thereupon the observation was made it wouldn’t be a wise thing for them to try and take industrial action when there was no snow on the ground. Similarly, and more pertinent to this matter, the union is pressing ahead to try and get an agreement and we want to have access to the optimal economic weapon available to us, when pressure could be brought to bear, the maximum pressure could be brought to bear on the intended targets which are Skilled Group and Busicom and it is an observation to be made that the maximum pressure could be brought to bear if the client, the relevant client of Busicom and Skilled, namely Schaefer and Coles Myer, still had work that was urgently required to do.

PN2692

We want there to be pressure, that sort of pressure, on the intended targets. And that third party pressure is something that can extract optimal results. Now, recent amendments to the Act realises that that sort of pressure will be an incident of industrial action and the amendments made on 27 March last year have given a safety valve where such things occur. And that is found at section 433 of the Workplace Relations Act which allows bargaining periods to be suspended if significant harm for third parties is demonstrated. So if the unions’ plans require that it take industrial action, and of course we’d be happy to conclude an agreement without having to resort to industrial action, but if industrial action is authorised and is taken in an effort to secure the agreements that are sought it may well be within Coles Myer or Schaefer’s scope to seek to terminate the relevant bargaining periods behind these applications under section 433 and some of the criteria are found in subsection (2) and they would go to disruption to the supply of goods or services or reduce the person’s capacity to fulfil contractual obligations or other such things.

PN2693

It’s my duty as an advocate to the Commission to be frank with the Commission and we are saying that’s what we intend to do. Moreover, if the unions’ conduct has the effect of causing this sort of pressure there is no breach to the Trade Practices Act because there is a defence to alleged breaches of the Trade Practices Act. Now, I’m not sure if the parties would have a copy of that Act to hand, but I can cite the section. It’s 45DD in particular section 45DD(2) which deals with organisations taking industrial action. Such action will not infringe the Trade Practices Act if the dominant purpose is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee or any employees covered in taking the industrial action.

PN2694

Now, we hope that if industrial action is resorted to somewhere later down the track both Busicom and the Skilled Group will feel the squeeze and hopefully that pressure might allow commercial arrangements to be made somewhere along the track for the agreement sought to be achieved. But that is the purpose of seeking this ballot, to bring that further pressure to bear on the targets, namely Busicom and Skilled Group. Now, going further to the submission of Mr Taylor about the relevance of the diminishing workforce, yes, this is a sprint to the line. We would have liked to have had these orders earlier in the piece. We would have had more bargaining power, but as long as there is a relevant employee, a ballot order should issue and the fact that our bargaining period is being enervated by the conclusion of the job is not an ideal situation, but we have to go with what's before us.

PN2695

That notion couldn't be seen in my submission to reduce the genuineness of the union's attempts to reach an agreement. Indeed, in a broader sense, the whole application for a ballot order in my submission should be seen as good evidence that the union is genuinely trying to seek an agreement and that is a notion that I said before was picked up by Commissioner Thatcher in the BP Refinery Kwinana case and I want to address the point that Mr Moir made specifically in his submissions.

PN2696

In my submission he's seeking to send the Commission on a diversion and to concentrate the Commission's attention to the idea that it is a condition precedent to making an application that a party had genuinely tried to reach agreement. On an examination of the Act, such is not part of the Act. I would ask the Commission and the parties to just have a review briefly of the structure of division 4, part IX of the Workplace Relations Act.

PN2697

It's divided into subdivisions. Subdivision A is general which contains the objects and definitions. Subdivision B goes to applications and section 451 deals with who may make an application and there are other requirements for the application including section 452, the contents of the application, 453, materials to accompany the application and then moving on to subdivision C, that deals with the determination of application and order for ballot to be held and in particular we are concerned here with the requirements of section 461.

PN2698

Well, the tests in 461(1)(a), (b) and (c) are not set out as being a condition precedent to making an application anywhere in subdivision B. The tests arise and I say this is in accord with the Country Fire decision, the tests arise during the bargaining period. The bargaining period and I think Mr Moir was a bit mistaken here, did not come into effect on the 14th for Busicom when the notice was served under section 427.

PN2699

The bargaining period actually commences seven days after that, so it was 22 February that the bargaining period would have commenced for Busicom and thereafter, a day or two later, I can't recall exactly, but the evidence will disclose, there was the exchange between Mr El Daghl and Mr Mavromatis of an agreement and then a reply and there was some contest as to the evidence of that. I am willing to concede, Commissioner, that if the Commission at that time, around the end of February, had turned its attention to whether the requirement in section 461(1)(a) had been met, the union's case would look a bit thin, but the test is now being addressed a month later and since that time, Mr El Daghl had replied to Mr Mavromatis and it was put in as exhibit M5 by Mr Moir saying that he's committed to making reasonable efforts in relation to the negotiations:

PN2700

However, I am unable to commit to a specific date in relation to providing you with a reply.

PN2701

Well, he's really done nothing for much of the month of March, right up to this application. He has refused or failed to engage in negotiations. The union put the ball in Busicom's court. A draft agreement, a particularised draft agreement was sent to Busicom and they have failed to examine it, scrutinise it, deal with it in any way other than to make the general statement it's not MECA job and on that basis they refused to engage in negotiations until that issue was determined.

PN2702

Well, it's been determined. Mr Mavromatis gave evidence that he stands ready and willing to negotiate, as did Mr Travis in relation to the Skilled matter, for that matter. Now, it would be an absurd reading of the Act to contend that if an employer refused to negotiate, then a union could not be seen to be genuinely trying to reach agreement, but such was effectively advanced in my understanding of the employer's submission, well, that idea has now been subject or that notion has now been subject to some consideration by a member of the Commission and I did email through a further reference, a decision of Deputy President McCarthy of 26 March in Minepro and I would ask - I won't go through a full explanation of the decision, but it just goes through the regular sort of considerations that the Commission would have to deal with in an application such as this, but paragraph 24 of that decision, his Honour noted that the CEPU was quite within its rights to seek an agreement and then at paragraph 25 his Honour noted that the employer had effectively refused to recognise the CEPU and to specifically refuse to negotiate an agreement with the CEPU and his Honour then noted:

PN2703

I find it extraordinary to then assert that the CEPU is not genuinely trying to reach agreement.

PN2704

His Honour then goes on at paragraph 26 to say:

PN2705

There was nothing more the CEPU could realistically be expected to do in the circumstances other than to seek an order for a ballot. The only other option was to abandon seeking an agreement.

PN2706

Now, the issue of the test in 461(1)(a) and (b) does come up from time to time in applications such as this and in my experience and I make the observation generally, it is not unusual for an employer to contend, well, there might be some further scope in meeting and quite often the Commission will on hearing a preliminary account of what had transpired before suggest to parties that there be a further adjournment and further negotiations in an attempt to try and ensure that the requirements of 461(a) and (b) could be conclusively met and so with that schema being available, it sits in accord with the operation of section 461(1) which as I've stated before falls in the - or the subdivision of the part of the Act that deals with determination of these applications and it's entirely consistent with a structured reading of the Act that the test is to be applied when the application comes before the Commission.

PN2707

Now, in many instances, the Commission might find itself bound by the two day objective that's stated in the Act or the truncated or tight time frame, so quite often the lodging of the application will be rather contemporaneous with the determination of the application and so there won't be such a large time span, but here in this particular case, the lodging and the requirement for the Commission to be satisfied that those conditions in section 461(1) had been met, have been pushed apart by a good month and the parties have continued to be in a position to reach agreement and the union has maintained its desire to reach an agreement.

PN2708

Indeed, it has tried to do things expeditiously, but there have been numerous requests and they would be on the file by Busicom for adjournments or having the matter held over. In the meantime, all that has done is really just take away the bargaining power the union could find itself - its availability if protected action was available. Now, the other issue that Mr Moir put great store in was the allegation that the NEST clauses I will refer to them amounted to prohibited content.

PN2709

Well, the decision I say of Merkel J points in the opposite direction. The decision of Munro J was somewhat equivocal on that point. The disclaimer in the bargaining period letter invited comment and numbers given until the last minute by Busicom and at any rate, the Full Bench decision in Tyco seems to indicate that there is some latitude for those matters which might be marginal or tight calls and the issue itself was referred to by Mr Moir himself as esoteric and that's what they are.

PN2710

They are really quite fine calls on whether they could amount to prohibited content or not. They are not specifically prohibited like the various items that are enumerated in the relevant regulation such as the ability of the union to be involved in a dispute settlement procedure without the consent of the employee, et cetera. It comes about in a very tangential way and it is not demonstrative of the union not genuinely trying to seek agreement, just to hang your hat on such obscure points buried away and further negotiations might have been able to deal with that issue.

PN2711

If Busicom had entered into negotiations, various approached could have been taken. One that the union could have availed itself under the disclaimer in the letter would be a simple request for a check with the Office of the Employment Advocate which is provided for in the Act and the issue could have been cleared up relatively quickly, but it just seems to me it's just purely opportune for Busicom to run a fine toothed comb over the agreement and look for any potential defect, no matter how tenuous and we say it is tenuous.

PN2712

THE COMMISSIONER: They've been able to do that in the time that's available, but they haven't been able to respond to the claim in the time that's available.

PN2713

MR TERZIC: Yes. Well, it shows a quite tendentious nature of that reply in those two clauses and if there's anyone here that's demonstrating anything close to bad faith in negotiations, I'd say that that complexion could be put on Busicom because if they wanted to negotiate an agreement, they were genuinely concerned about prohibited content, they would have immediately raised it with us and asked - - -

PN2714

THE COMMISSIONER: There's no requirement on them to genuinely seek agreement, is there?

PN2715

MR TERZIC: No.

PN2716

THE COMMISSIONER: Or genuinely oppose agreement, for that matter.

PN2717

MR TERZIC: No, and if they just choose - - -

PN2718

THE COMMISSIONER: The onus is on you.

PN2719

MR TERZIC: Yes. If they just choose to freeze us out, as Deputy President McCarthy said, what more can we do than try to put pressure on them to come to the negotiating room with us and meet and the only way we can do that is with we say protected industrial action. That's what we're trying to do and we're only doing it for one purpose, to get an agreement with Busicom and with Skilled. If the Commission pleases.

PN2720

THE COMMISSIONER: Thank you. Unless there's something special that someone wants to raise, if there' s nothing further, I propose to adjourn the proceedings. I might ask the parties to wait for a few moments. No, I will adjourn the proceedings until 2.15. That will give me some more time and we'll come back at 2.15 and I ought to be in a position to announce a decision, though clearly I won't be in a position to give reasons for decision and, frankly, if I am not in a position to announce a decision at that time, we will adjourn further, but we'll adjourn until 2.15. Thank you.

<LUNCHEON ADJOURNMENT [1.07PM]
<RESUMED [2.15PM]

PN2721

THE COMMISSIONER: Firstly dealing with BP2007/2428 which is an application by the AMWU in respect of Skilled Group Ltd and 2457 which is from the CFMEU and the Skilled Group Ltd, I am going to grant the ballot order in respect of that company and those two organisations. I am satisfied that the matters set out in section 461(1)(r) do exist and I note that the discretion available to me under 461(2) is extremely limited and goes to the issue of the objects of the section. Were my discretion wider, I might have been persuaded by the arguments that you put in respect of that, because of the potential futility of the action, but I just don't see that I've got that discretion.

PN2722

In respect of the bargaining period BP2007/2430 which is the application by the AMWU in respect of employees of Busicom, I am not satisfied that all of the matters in section 461(1) have been met, in particular that there was a genuine attempt by the applicant to reach agreement with the employer of the relevant employees. I would note, however, that the mere failure of an employer to respond to an application would not be sufficient grounds to be satisfied in that direction, but that's not the case here and I note also that there is potential for agreement to be reached and people in that area should start working very hard at that because it seems to me that as time goes on, the capacity of the AMWU to establish a position and satisfy the Commission that they're genuinely trying to reach agreement will increase, markedly.

PN2723

None of that should be taken as the reasons for the decision. I intend to publish full reasons for the decision as quickly as possible, but you will appreciate that I do need transcript because of the extent of the evidence and I will need to quote that. That will also include, of course, the reasons for my earlier decision last week. The proceedings are adjourned on that basis. Thank you. Sorry, there is one other matter. The orders will issue this afternoon in respect to the ballot with Skilled.

<ADJOURNED INDEFINITELY [2.18PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CT1 SUBMISSIONS OF AIG PN2235