BP2007/2534, Transcript of Proceedings [2007] AIRCTrans 210 (26 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16781-1

SENIOR DEPUTY PRESIDENT RICHARDS

BP2007/2534

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
RCR TOMLINSON LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2534)

BRISBANE

1.01PM, FRIDAY, 13 APRIL 2007

Continued from 30/3/2007

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

PN1

MS S FENTIMAN: I appear on behalf of the AFMEPKIU. With me I have MR B GORDON, delegate from RCR Tomlinson and AMWU organiser, MR S Franklin.

PN2

MR M MUIR: I appear on behalf of RCR Tomlinson or RCR Engineering and in the room with me is my law clerk, MR J BIRMINGHAM.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. I take the fact that we're proceeding with this application today is that the offer as put in relation to wages has been rejected and it's now, Ms Fentiman, the AMWUs position that they wish to proceed with the application.

PN4

MS FENTIMAN: Yes, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Is that the case?

PN6

MS FENTIMAN: That's the case.

PN7

THE SENIOR DEPUTY PRESIDENT: Okay, so there's no matter to divert us other than for proceeding with the application, that's correct?

PN8

MS FENTIMAN: That's correct, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Ms Fentiman and Ms Muir, do you retain a copy of the check list that I sent I think back on 27 March?

PN10

MS FENTIMAN: I have one here, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: As we discussed last time, it's my intention to work through that check list methodically and we'll just take it from there. Ms Muir, do you have your copy there?

PN12

MS MUIR: Yes, I do, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: The Act essentially comprises a number of conditions that need to be satisfied for the purposes of the making of the relevant orders. Some of those are matters that are of a discretionary sort where the Commission is required to be satisfied. Some of them are of - others are of a factual type where certain facts need to be ascertained to satisfy the necessary condition and this check list really is a compilation, an amalgam of those various matters drawn across the various aspects of division 4 of part 9 of the Act and what I will do is just work through those and I will simply draw your attention to them and give you in some cases my initial response on the basis of the documentation I have got and, Ms Muir, I will give you an opportunity at each of those points to indicate to me whether you agree with me as to that finding or whether you wish to contest it.

PN14

MS MUIR: Thank you, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: First of all, elementally, in respect of section 451(3)(a) of the Act has an appropriate person made this application? Well, an appropriate person in this case was the AMWU unless contested.

PN16

MS MUIR: No, it's not.

PN17

THE SENIOR DEPUTY PRESIDENT: In respect of section 454 of the Act, was the application provided to the other party, that being the employer, within 24 hours of the lodging of the same and similarly to the AEC? Well, in respect of the latter element, the AEC, the AEC did respond to the receipt of the application originally, so I am satisfied in that regard for my purposes. Ms Muir, I presume from our interaction that we had on I think 27 March, although I could be corrected, it could have been a little bit later, that you also received that notice within 24 hours of it being lodged.

PN18

MS MUIR: Yes, we did, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Section 458(1) of the Act requires that the ballot for hearing order be issued - I should say incorporated in the ballot hearing order was the notification that was required to be posted for employees in relation to the requirements of section 458(1) of the Act which allows the employees to have an opportunity to be heard in relation to this application. Was that notice provided, Ms Muir?

PN20

MS MUIR: Yes, it was.

PN21

MR GORDON: Not that I notice, your Honour, on our notice board.

PN22

THE SENIOR DEPUTY PRESIDENT: It wasn't put up on the notice board at the requisite time? It's in the initial instructions. It was incorporated into the original order of hearing and in the covering letter to that order of hearing that the notice to employees be suitably conveyed. Now, Ms Muir, what happened?

PN23

MS MUIR: All I can do is go and just get further instructions. I had thought that it had been done, but as you'll appreciate, I am not on the Wacol site, so I had assumed it had been done, I had asked for it to be done. The fact that I am being told now that it wasn't, that's new to me.

PN24

THE SENIOR DEPUTY PRESIDENT: Would you like just to adjourn for a minute or two while you get some instructions?

PN25

MS MUIR: Yes, I can do.

PN26

THE SENIOR DEPUTY PRESIDENT: Let's just adjourn for a minute or two, then.

<OFF THE RECORD

PN27

MS MUIR: I've received instructions and a notice has not gone up. There was a slight misunderstanding. Our Mr Christopher believed that the notice was to go up after the orders had been made, so, no, a notice has not gone up on the notice board.

PN28

THE SENIOR DEPUTY PRESIDENT: Okay, so the original hearing or for the purpose of the record, the original hearing order issued on 29 March incorporated at clause 3 an obligation, placed an obligation on the employer upon receiving this order the employer shall immediately post in a prominent location in each workplace a notice of the type as annexed and annexed is the notice to employees in the usual manner, notifying the application and its circumstances and the entitlements of employees to be heard in relation to or to make submissions in relation to the application for an order if they so wish. The Act is non-prescriptive as to the manner in which employees, that is relevant employees to be informed of the opportunity to make submissions so even though the order itself specifies a machinery for informing employees, that is through the posting of the notice as appended to the order, the Act is non-prescriptive in that regard and simply requires the Commission to be satisfied - well, the Act says:

PN29

The Commission must not determine an application for a ballot order until it is satisfied that the persons referred to in section 458(1) and (2) who are the relevant employees as defined have a reasonable opportunity to make submissions in relation to the application.

PN30

It's a critical requirement. It's something I must satisfy myself as to before I can proceed to make an order, so, Ms Fentiman, I might revert to you and ask you if there's anyone here and there might be who has knowledge of, (a) or (1) that the relevant employees as defined were aware of the prospective hearing and, (2) were equally aware that should they wish, they could themselves make submissions in relation to this matter and/or else on the assumption of their representation elected not to do so. Ms Fentiman, is there someone who might be able to assist us in that regard?

PN31

MS FENTIMAN: Your Honour, would you like Mr Franklin to give evidence.

PN32

THE SENIOR DEPUTY PRESIDENT: If that is possible in relation to those matters, Mr Franklin. We might bring you in, Mr Franklin, because you had a statement in this matter.

PN33

MS FENTIMAN: Mr Franklin has two statements.

PN34

THE SENIOR DEPUTY PRESIDENT: That's right. Mr Gordon is the other one. Mr Franklin had - we might swear you in, because then we can equally keep you in the box when it comes to the time and get your other statement from you as well.

<STEPHEN ERNEST FRANKLIN, AFFIRMED [1.13PM]
<EXAMINATION-IN-CHIEF BY MS FENTIMAN

PN35

MS FENTIMAN: Could you state your full name, please?---Stephen Ernest Franklin.

PN36

And, Mr Franklin, you've provided two statements in relation to this application?
---Yes, I have.

PN37

The first statement I might take you to is three pages - four pages long and 12 paragraphs. Do you have a copy of that there?---I do.

PN38

That is your signature at the top of page 4?---It is.

PN39

Your second statement, is that two pages long and 11 paragraphs?---Yes.

PN40

That is your signature at the bottom of that statement?---Yes.

PN41

Are the contents of those statements true and correct?---The first statement on paragraph 8, there needs to be a name change. It says Brendan Maffey and the person that was there was Darren Trask.

PN42

MS MUIR: I am sorry, I couldn't hear any of that. There's a microphone somewhere where papers are being rustled over?---I will sit a bit closer. Can you hear that?

PN43

Yes?---Sorry, that was a name change in paragraph 8 from Brendan Maffey to Darren Trask.

PN44

MS FENTIMAN: So you wish to amend your statement, Mr Franklin?---Yes.

PN45

And otherwise those statements are true and correct?---Yes.

PN46

I just have some further questions, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MS FENTIMAN: Mr Franklin, how many meetings did you have with members at RCR Tomlinson leading up to this application today?---Quite a few meetings with members. They were well informed that we were going ahead with the protected action claim. We've taken at least two, if not three, votes on the matter.

**** STEPHEN ERNEST FRANKLIN XN MS FENTIMAN
PN49

The members have voted to bring this application?---Yes, yes.

PN50

Were the members aware that if they so required, they could appear today and make submissions or if they had anything they wished to raise, they would raise that with you as their representative on site?---Yes, certainly.

PN51

That was made very clear to the members?---Yes.

PN52

I have no further questions, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Ms Muir, do you want to cross-examine Mr Franklin on those matters?

PN54

MS MUIR: No, your Honour. The evidence that Mr Franklin has given is just in respect of that item on the check list and not in respect of his affidavits generally.

PN55

THE SENIOR DEPUTY PRESIDENT: No, no, it's as to whether or not the employees were - the evidence that Mr Franklin has given is that in his view, as a consequence of his interaction with the employees on site who constituted the body of relevant employee, that they appreciated that there was a protected action ballot application afoot. They appreciated that they had an opportunity to make submissions themselves as relevant employees in respect of that application, but in the circumstances of their representation, they chose to delegate that function collectively, if you like, to the AMWU.

PN56

MS MUIR: I have no questions to cross-examine on that.

PN57

THE SENIOR DEPUTY PRESIDENT: Mr Franklin, is that your evidence in summary?---Yes.

PN58

Thank you. We will keep you in the witness box and come to you in due course. I should just note we might just take those two witness statements in. I am just trying to find my second one at the moment. We will mark the first one which we've just been referring to AMWU1.

EXHIBIT #AMWU1 WITNESS STATEMENT OF STEPHEN ERNEST FRANKLIN
EXHIBIT #AMWU2 SUPPLEMENTARY WITNESS STATEMENT OF STEPHEN ERNEST FRANKLIN DATED 13/04/2007

**** STEPHEN ERNEST FRANKLIN XN MS FENTIMAN
PN59

MS FENTIMAN: Thank you, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: So for the purposes of the question afoot which commenced that iteration, I am satisfied that irrespective of the order not being complied with in its strict terms, there was nonetheless sufficient action taken to ensure that the requirements of section 457(2) and 458(1) have been met in relation to this matter. Returning again to some of the foundation requirements for an order to be made, that is was a bargaining period notified and did that notice embody the relevant particulars, I have a notice period that is attached to the application and it has its particulars with it. Ms Muir, do you wish to comment on whether or not that bargaining period, the relevant particulars are appropriate?

PN61

MS MUIR: No, I have no comment to make on them, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Are there currently certified agreements in place that have reached and passed their nominal expiry date?

PN63

MS FENTIMAN: They've passed their nominal expiry date. Your Honour, there is one certified agreement and it has passed its nominal expiry date.

PN64

THE SENIOR DEPUTY PRESIDENT: Ms Muir, is that your understanding as well?

PN65

MS MUIR: Yes, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: There has been a declaration provided to this matter, in relation to this matter. It's in the prescribed form. I am looking at questions 7 and 8 now and it declares that for the purposes of this application, for the purposes of the agreement making process that it is in effect sponsoring that no prohibited content as defined by the Act as being sought in relation to this matter. The documentation so declares. Ms Muir, do you have a different experience?

PN67

MS MUIR: Based on my discussions over the last week, that declaration is in order.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you. I am also satisfied from my knowledge, but, Ms Muir, you can contest it if you like that an appropriate person who is duly authorised has also made these declarations.

**** STEPHEN ERNEST FRANKLIN XN MS FENTIMAN
PN69

MS MUIR: I am sorry, your Honour, I missed that last bit.

PN70

THE SENIOR DEPUTY PRESIDENT: Has an appropriate person duly authorised made these declarations?

PN71

MS MUIR: Yes, we believe so.

PN72

THE SENIOR DEPUTY PRESIDENT: Has the application detailed the types of employees to be balloted and otherwise conformed with the rules of the Commission? Ms Muir, is there any debate that the ballot application has sufficiently defined the relevant employees for the purposes of the ballot?

PN73

MS MUIR: We are satisfied that those matters are dealt with correctly and that they have been sufficiently defined.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. For the purposes of section 452(1)(a) of the Act, the Act requires that the application include the question to be put for purposes of defining the nature of the proposed industrial action. As I recall it, it's not immediately before me, I recall that the question appeared to be a specific question proposing the potential for stoppages of four hours' duration. Ms Fentiman, is that the appropriate - - -

PN75

MS FENTIMAN: That's correct.

PN76

MS MUIR: Sorry, it was up to four hours?

PN77

MS FENTIMAN: Yes. On page 2 of the application, the nature of industrial action proposed is described as four hour stoppages of work, at the top of page 2.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, so the question is in support of reaching a union collective agreement with your employer, do you endorse the taking of protected industrial action against your employer which may involve four hour stoppages of work? That is a question that for my purposes is sufficiently particularised and discloses the nature of the industrial action and therefore enables the employees to make an informed choice as to the goal they seek relative to their potential risk in terms of economic loss. For purposes of section 461 of the Act, the Act requires the Commission to be satisfied in relation to a number of things.

**** STEPHEN ERNEST FRANKLIN XN MS FENTIMAN
PN79

The first of those is that whether or not during the bargaining period, that is during the bargaining period, did the applicant genuinely try to reach agreement with the employer of the relevant employees and is the applicant genuinely trying to reach agreement with the employer, so it's retrospective as well as current. Now, my knowledge of these matters over the last two weeks is such that it would appear to me to be self evident that both parties have been attempting to reach agreement in the interim period. Is there any debate as to whether or not those efforts were being undertaken otherwise during the bargaining period, Ms Muir?

PN80

MS MUIR: I am sorry, your Honour?

PN81

THE SENIOR DEPUTY PRESIDENT: Do you contest that there have been genuine efforts to try to reach agreement with the employer in relation to the agreement?

PN82

MS MUIR: I have some concerns about the notion of genuinely trying and would have some objection and would like to cross-examine Mr Franklin on his evidence in relation to that and put alternative propositions to him.

PN83

THE SENIOR DEPUTY PRESIDENT: Ms Fentiman, I will revert to you shortly for purposes of - I will come to Mr Franklin shortly, but we do know - sorry, let me start from the beginning. The Act requires two matters to be attended to. One is whether or not over the course of the bargaining period, that is since the date the bargaining period commenced, whether the applicant has been genuinely trying to reach agreement and requires in a different tense whether the applicant as currently placed is genuinely trying to reach agreement with the employer. Well, there is some evidence before all of us as to what has been transpiring in recent days, but I will allow some cross-examination of Mr Franklin and his evidence in relation to these matters. Ms Muir, do you want to cross-examine now? I presume, Ms Fentiman, you've led your evidence in chief.

PN84

MS FENTIMAN: Thank you, your Honour.

<CROSS-EXAMINATION BY MS MUIR [1.27PM]

PN85

MS MUIR: Thank you, your Honour.

PN86

Mr Franklin, in respect of your first affidavit, in paragraph 10 you said that meetings with the company were held on these dates and there are a list of dates. Were you present at those meetings?---No, Merrina, I wasn't present at all of them.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN87

Thank you, Mr Franklin. So, in fact, in relation to those meetings that occurred, you don't know what transpired?---Those meetings there, there were minutes taken by the delegates and that's what we have and there were other organisers present at some of those meetings, the ones that we had right of entry applications for.

PN88

You have minutes of these meetings? Were they ever given to the employer?
---They were personal minutes taken by the delegates.

PN89

But there were no minutes taken of those meetings and shared amongst the parties?---I don't know whether the company took minutes, but our delegates have some minutes and notes that they have taken.

PN90

Was a union representative present at all those meetings?---The organisers were present at meetings where they had right of entry notices, so the right of entry notices are in paragraph 12.

PN91

None of the dates match up, Mr Franklin, so the union wasn't present on any of those meetings?---5 January is one of the dates.

PN92

Yes, and 19 December, so, in fact, the union was only present at two of those meetings?---It would appear so, but I don't know that for certain.

PN93

Thank you, Mr Franklin. In your second affidavit, I take you to paragraph 4. Is that paragraph correct? I know you haven't been asked whether you wanted to change anything in your second affidavit, but do you still stand by paragraph 4?
---If I can check my notes, then I can refer back to them, but I have the dates of the meetings in my note book.

PN94

Mr Franklin, you only did this affidavit yesterday and I was delivered it this morning, some 90 minutes before I was to appear here?---I believe we had three phone conversations and I believe that to be correct.

PN95

Mr Franklin, I will put it to you that in fact there were only two telephone conferences. There was one on Monday, 2 April, which was a very short conference and a second telephone conference on 4 April.

PN96

MS FENTIMAN: If I might just interrupt, I think Mr Franklin is referring to the conference we had in the Commission on Wednesday. We had a phone conference with you, Merrina, and the Commission.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN97

MS MUIR: No, this is the week after the Commission.

PN98

MS FENTIMAN: Sorry, you're correct. Sorry for interrupting.

PN99

MS MUIR: Mr Franklin, I put it to you there were only two telephone conferences?---It may not have been a conference. I think we spoke over the phone and with emails quite regularly during this period. I don't know whether that has any bearing on the outcome.

PN100

Can I put it to you that on Monday, 2 April, there was a telephone conference and that at that telephone conference, it was agreed between the parties that we would each go off and provide information regarding wage rates in the market?---Sorry, did you say each party?

PN101

The parties, between the AMWU, Beth Mason, Bryce Gordon, yourself and Darren Trask on Monday and there was Bruce Christopher and myself at that meeting as well?---Yes, I agree that we were to go and do that.

PN102

Then on Tuesday, 3 April, I put it to you that in fact no meeting occurred, there was no conference and, in fact, what happened on Tuesday, 3 April, was that both parties exchanged some information about wage rates in the markets. Is that proposition correct, Mr Franklin?---I have in my notes for that day that we spoke over the telephone. I can only refer back to those, but that's what I've written down.

PN103

Your Honour, I am not quite sure at this point how I manage to put to Mr Franklin a particular document.

PN104

THE SENIOR DEPUTY PRESIDENT: You can fax it through to the registry here and it can be provided to him.

PN105

MS MUIR: Am I able to just - because there's no-one here in this room from the Commission, can I try and talk him through it at this point? Is that permitted?

PN106

THE SENIOR DEPUTY PRESIDENT: Well, it just depends on how complicated the document is.

PN107

MS MUIR: Not particularly.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN108

THE SENIOR DEPUTY PRESIDENT: We can see whether it will work and if not, we might have to resort to finding someone to fax it.

PN109

MS MUIR: Mr Franklin, I put it to you that on 3 April at five minutes past five in the afternoon that I in fact sent you, Darren Trask, Beth Mason and Bryce Gordon an email which included a summary of the wage rates for a number of companies including RCR Engineering and that the purpose of that table was to allow you and others to consider the information and in that email, I suggested that we would all have another telephone conference on Wednesday, 4 April. Do you recall getting that email?---I recall quite a few emails, Merrina. I haven't - - -

PN110

There's only one email that I am referring to?---I haven't got it in front of me, but I believe, yes, there was possibly something along those lines.

PN111

Your Honour - - -?---I agree that we sent plenty of emails, Merrina, and, yes, I think I received something like that.

PN112

Your Honour, may I fax this information through to the registry?

PN113

THE SENIOR DEPUTY PRESIDENT: Yes. You will need to go to the registry.

PN114

MS MUIR: I will have my clerk - - -

PN115

THE SENIOR DEPUTY PRESIDENT: Yes, if you could do that. In the interim, are we able to proceed or do we need to adjourn whilst that process unfolds?---I do have most of those emails in my file, your Honour.

PN116

MS MUIR: It's the email dated 3 April. On mine it says five minutes past five. It was sent to Steve Franklin, Darren Trask, Beth Mason and Bryce Gordon and it is the attachment that is of interest. Do you recall receiving that attachment?
---Yes, I have the attachment here and I have the email and it's come to us at 7.05 pm.

PN117

That takes account of the time difference?---Yes.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN118

Can I put it to you that in fact no meeting occurred on 3 April, that in fact the next meeting that we had after the Monday was on Wednesday?---Can I have my note book, please, Bryce? I have it written down that we had a telephone hook-up. Whether it was a planned telephone hook-up or whether it was an impromptu one, I believe that we have that and it may have just been on the speaker phone. I'm not sure:

PN119

Phone hook-up on 2/4.

PN120

Then I've got:

PN121

RCR phone hook-up on 3/4, Bruce, Merrina, Beth, Darren and Steve.

PN122

What we did:

PN123

To advise the Commission of parties' intentions, of intended plans.

PN124

So what we did, we agreed to I believe put things off a little while.

PN125

But we didn't discuss the current issues between the parties in respect of the employment agreement?---No, Merrina, but we had a telephone hook-up.

PN126

THE SENIOR DEPUTY PRESIDENT: Sorry, you had a telephone hook-up, but is that telephone hook-up adjacent to or in the context of the agreement?---My notes don't cover that, your Honour.

PN127

So was it - - -?---I think it was about whether we actually were to put off the action and continue to negotiate.

PN128

In fact, Mr Franklin, it was merely just an administrative discussion between you and I, I recall?---I've got my notes there.

PN129

The point and you agree with me, Mr Franklin, that in fact on 3 April, whatever discussion did take place, it wasn't about the terms currently on the table for discussion relating to the employment agreement at Wacol, that it was merely an administrative matter in relation to the matters before the - in relation to the listing of this matter before the Commission?---Yes, that was correct.

PN130

Thank you. You state in your affidavit that we met on 4 April?---Yes.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN131

Do you recall what the agreement - what the outcomes were of that meeting?---On 4 April?

PN132

4 April?---I have notes. I believe I recall.

PN133

In fact, Mr Franklin, I actually sent everyone an email at 4.54 pm confirming what was agreed. Do you recall getting that email?---Yes.

PN134

And do you have that email in front of you?---I have this email on 4 April.

PN135

There are three dot points?---At 6.54 pm.

PN136

There are three dot points on that email?---Yes.

PN137

Could you read out those dot points, please?---AMWU to meet with workers who are union members to update them on discussions to date. Second, AMWU to continue in the spreadsheet - - -

PN138

To include?---Sorry, to include in the spreadsheet any allowances for tool and attendance which are paid in addition to the rates detailed in the schedule, bracketed, in particular Forgas and Dara Welding. Third, upon the AMWU updating our spreadsheet with extra information, RCR will endeavour to arrange for another telephone conference by the next working day.

PN139

Thank you, Mr Franklin. When did you forward to RCR the updated material on the spreadsheet?---That was Wednesday. It was the 10th on the Tuesday.

PN140

That was Tuesday. That was the day that we were last before the Commission?
---That's correct.

PN141

In fact, the email that I received was received by me at 8.26 am and I am in the Commission at 12 o'clock and do you recall - could you tell the Commission what you sent through?---It was - actually, what you required was quite detailed, so what we did, we went into each agreement of all of about six or seven businesses and took out the areas that were covered with regard to wages and allowances. Some of them were one page, some were two, some were four pages. This is what Merrina requested and we emailed - - -

PN142

THE SENIOR DEPUTY PRESIDENT: This is the document we discussed on Tuesday, isn't it, if I recall?

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN143

MS MUIR: I did make reference to this particular - what had occurred.

PN144

Mr Franklin, can I take you back to the email that you just read out and could you please read the second dot point?---The email, yes.

PN145

Yes, the one that you just read out and could you please read the second dot point?---

PN146

AMWU to include in the spreadsheet any allowances for tool and attendances which are paid in addition to the rates detailed in the schedule (in particular Forgas and Dara Welding).

PN147

Yes, and, Mr Franklin, what did you send through to RCR or what did you send through to the employer on 10 April?---We sent through documents relating to RCR Tomlinson, Bradkin, Sun Engineering, Mondelfus, G&S, Eagle Engineering and Dara Welding and Forgas.

PN148

How many pages did you send through, Mr Franklin?---I have the pages there. It could be anything around 20 to 30 maybe.

PN149

There are 27 pages?---And at the end of that was a summary.

PN150

No, Mr Franklin. We will come to that. Mr Franklin, what you sent through was some 27 pages. Did you update the spreadsheet that had been provided to the parties on Wednesday, 4 April, that we discussed? Did you update that spreadsheet?---Update that?

PN151

Yes?---We had a look at that spreadsheet as you guys did with everything that we sent you and, no, we didn't update it.

PN152

Thank you, Mr Franklin. In the email that you sent through on 10 April with all the information, did you provide any analysis or summary or did you just send through a cut and paste of various agreements?---The original document that we sent through was a cut and paste which had to be transferred into a Word document so that we could actually send it through. It was quite an exhaustive process. I spent a lot of time on it and when I was able to finish the summary, I emailed that through.

PN153

In fact, the summary came through at 11 am, remembering that we're in the Commission at - remembering I am in the Commission at 12 and it was received by me at 10.58 am and there is an analysis attached to that email. Do you have that email and that analysis?---No, I don't. I have the summary.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN154

Does anyone else have that email or that analysis?---No, sorry.

PN155

MS FENTIMAN: No, your Honour.

PN156

MS MUIR: I will need to fax that through because I want to ask Mr Franklin some questions about it. Your Honour, my clerk is going up to level 16 and will ask the registry to fax that through to you now.

PN157

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I ask just a number of questions to satisfy myself about various matters at this juncture before we head off on another issue and that is I recall that when we initially entered discussions about this application, then subsequently in relation to the application under division 4 of part 13 that it was my understanding that bar two matters and those two matters being the wage rate and the outstanding issue about the award incorporation clause that the parties had substantially agreed their agreement bar those two stand-out factors and particularly I think the key outstanding issue was the wage rate, so I was of the view and I can be corrected now, I suppose, but I was of the view at the time a week ago that they were the only issues that were standing in the way of the concluding of the agreement itself. Am I right in that conclusion or am I incorrect?

PN158

MS MUIR: That's certainly my understanding, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: So that would mean, then, that up until we discussed those issues, the agreement had been largely complete, but for those important issues, it had been largely complete?

PN160

MS MUIR: Yes, your Honour, and during the last week or so in respect of the incorporation matter, I have sent through a proposed draft and I did that straight away from when we last met. I haven't received anything back and I have assumed that that is largely accepted, mainly because there's been silence and that the only - that now the only outstanding issue is just wages.

PN161

MS FENTIMAN: Just on that, your Honour, I think we have one or two small amendments to that draft clause, but the members haven't had a proper opportunity to discuss that. The negotiations over the past two weeks have really been focused on a wage rate.

PN162

THE SENIOR DEPUTY PRESIDENT: On that wage rate.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN163

MS FENTIMAN: But we're very close.

PN164

THE SENIOR DEPUTY PRESIDENT: So on that issue there's potentially a drafting issue, but nothing substantive? Is that the message?

PN165

MS FENTIMAN: That's correct.

PN166

THE SENIOR DEPUTY PRESIDENT: But the stand-out as I've understood it and I've discussed it with the parties, there was a stand-out issue as being the wage rate and whether an offer would be made and, if so, what that quantum would be and whether it was acceptable in the context of the industry rates and that's the discussion that you've been having. What I am just trying to get clear in my mind and, Ms Muir, don't take it the wrong way, this is a question of logic, if the parties jointly agree that they have up until very recent times when we began to discuss this matter concluded the vast bulk of their agreement and there were really only two outstanding matters of which one is now left to a drafting issue, such that there's only one outstanding matter relating to the wage rate, how could I draw a conclusion that there hadn't been genuine attempts to negotiate the agreement over the course of the bargaining period and in the most recent times about which I have knowledge?

PN167

Sorry, I should hasten to say I agree with the thrust of your - I am not making findings as such, but I make the observation going along that - I think you've identified that some of Mr Franklin's evidence might exaggerate, in some instances might exaggerate the relevance of particular exchanges or conversations in the overall context of agreement making and I think you've indicated there are some conversations there that may not have been on point in relation to progressing the substance of the agreement making process, but dealt with administrative matters, but when I step back from those discrete issues which you've identified through your cross-examination and ask whether in the sweep of the period since 23 May 2006 through to today, have the parties genuinely and has the applicant been genuinely negotiating an agreement, well, I know enough that the agreement substantially is complete in most respects bar one drafting issue, but one outstanding issue of some substance being the quantum in offer and I am just wondering in that context, how can I conclude that there haven't been and that there are not genuine attempts to negotiate an agreement?

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN168

MS MUIR: Your Honour, if I may just respond, the table that is being faxed through to you was a summary sent through to us on Tuesday and you'll see from the attachment that I've already given to Mr Franklin that there are quite distinct differences and in particular reference to the hourly rate that RCR employees are paid. Now, that email and attachment was sent through to RCR. The next hour I was before you and you'll recall the last time we were here, Mr Franklin said we don't want to discuss this any more, we don't want to participate in this process any more, RCR, you have to put an offer on the table, despite the fact that we had two analyses that were quite vastly different in some aspects and yet the applicant was not prepared to enter into any discussions about those differences or work out why they were different or how the two parties had come to different views and we're talking about a calculation here. We're not talking about something that is - we're talking about something that is quite objective, not something that's quite subjective and yet the applicant said we're not going to discuss this any more and it's a simple point for us. We would say on that basis alone the applicant is not genuinely trying to negotiate with us. It is our submission that there is only one matter outstanding in an employment agreement that has many different elements to it and to come to the final stages and then not go through that final discussion we would say is not genuinely trying.

PN169

THE SENIOR DEPUTY PRESIDENT: But again from my knowledge, did you subsequently make an offer in response to the position the union adopted?

PN170

MS MUIR: We made an offer. On the last occasion we were here, I indicated to you that we would put an offer on the table within 24 hours. We did that. It was done and organised through our office in Wacol. Mr Christopher delivered to the representatives, the employee representatives, in writing an offer and upon sending that email, he then tells me that he went directly down to the employer representatives and said that he expected them to pass that on to the union representatives.

PN171

THE SENIOR DEPUTY PRESIDENT: That was subsequently discussed at a meeting of members?

PN172

MS MUIR: I understand so.

PN173

THE SENIOR DEPUTY PRESIDENT: Who has evidence of that as to it was subsequently discussed at a meeting of members?

PN174

MS FENTIMAN: It's in Mr Franklin's second statement, your Honour.

PN175

THE SENIOR DEPUTY PRESIDENT: That's right, and, Mr Franklin, can you tell me what happened? You put the offer, because I think it was the first quantum you had been offered, I think, was it?---Yes. No, sorry, there was offers previously in other draft agreements of two per cent at six monthly periods and this offer we put to the members. It came to us through the delegates. It was not sent to the union office and the day after - sorry, the same day, Beth rang through with the offer and I went and had a meeting with the members and explained to them that we had an offer to me verbally, to Beth was emailed, who is a delegate and I discussed with the members the offer and went and sat with Bruce Christopher, the manager. After that meeting, he provided me with a copy of the offer and at the lunch time following that, I put it to the members.

PN176

And that offer was different from the previous offers of two plus two over a six month intervals?---Yes, your Honour.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN177

But it was nonetheless still rejected by the membership at that time?---It was, your Honour.

PN178

If I recall your statement, it was the resolution that following the rejection of that quantum, the members voted to - well, the members voted to reject the offer and instructed the AMWU - I am looking at paragraph 12 of your supplementary statement or your second statement, AMWU2 - that the members ultimately voted to reject the company's offer and instructed the AMWU to proceed fully with the application for a protected action ballot. That's what transpired, is it?---Yes, your Honour.

PN179

So there had been previous offers of quantum, but not structured in the appropriate way. That was my gist of it from earlier discussions we've had. Is that right?---The members requested four per cent per year and the company requested two per cent and six monthly periods.

PN180

Okay, so, Ms Muir, you've got some way to go. I am just getting these documents handed to me as I speak, but is it the thrust, Ms Muir, if your contention that there's been no genuine - that the AMWU has not been genuinely trying to make the agreement in the contemporary period, that is the current period?

PN181

MS MUIR: That's correct, your Honour.

PN182

THE SENIOR DEPUTY PRESIDENT: You're not reflecting on the period since the bargaining period commenced as such, but you're contesting whether or not in the contemporary period they are trying in the continuing sense to make an agreement? That's your contention?

PN183

MS MUIR: Yes, it is, your Honour.

PN184

THE SENIOR DEPUTY PRESIDENT: Hence, that's why you want to focus on these recent emails and so on?

PN185

MS MUIR: Yes, your Honour.

PN186

I have got both emails now and, Mr Franklin, have you got - I have one of them.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN187

MS FENTIMAN: Your Honour, before Ms Muir continues, can I just seek to clarify something that was just mentioned? Ms Muir mentioned that we came before you last time and said we did not want to continue discussions. I just wanted to point out that we didn't want to continue under division 4, part 13 of the dispute. We were happy to always continue to try and reach an agreement about the collective agreement. Our members just decided they wanted to try and reach agreement through this process, rather than a dispute under division 4, part 13. I just wanted to clarify we've never said we didn't want to continue discussing reaching finalisation about the collective agreement and I don't think that was very fairly put.

PN188

THE SENIOR DEPUTY PRESIDENT: I take it from Mr Franklin's witness statement that that is evidence that the process did not stop on that day because there was subsequently an offer made and be it beyond the operation of the division 4 application, that offer was considered and subsequently rejected, so the process nonetheless continued. The interesting issue from my point of view is that I am being asked to really adjudicate on whether or not a positioning by the AMWU as to their future intent is an indication of a lack of genuineness or it is, indeed, that in a bargaining context a positioning from which it extracted a step from the employer which it sought which was the articulation of an offer and they're very different things.

PN189

One is a tactic or a positioning in respect of the negotiation period. The other is whether or not I should take the words at their face value as being indicative of a refusal to negotiate. Is one a tactic or is one a position which is indicative of no further intention to negotiate? The facts as presented through Mr Franklin's statement would lend me to conclude that it was a statement of positioning designed to achieve a goal in the negotiation process which was the articulation of a quantum which the AMWU sought and my evidence for that is, as I said in Mr Franklin's statement, that despite the positioning at the conference on the Tuesday, nonetheless the information that was requested as a part of that positioning was obtained and the process of testing whether or not that offer was acceptable for members subsequently took place. That's how the evidence is looking to me, Ms Muir, on that, but I am happy for you to persuade me otherwise if you like, but you see the point I am making?

PN190

MS MUIR: Yes, I do.

PN191

THE SENIOR DEPUTY PRESIDENT: You look at the words, but then you've got to look at where the words are in context and what they actually led to and it's a bit more complex, but, anyway, Ms Muir, I have these emails in front of me if you want to revert to those and you can take up those other comments I've just made as well, if you like, at some stage.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN192

MS MUIR: Thank you, your Honour.

PN193

Mr Franklin, the email that you sent through on 10 April at 10.58, there is an attachment to it. Do you see your attachment? This is your document, Mr Franklin?---That's not the one I have.

PN194

It's the dot point analysis?---Yes, RCR Tomlinson at the top.

PN195

Yes. Do you have that document?---Yes, I do.

PN196

Mr Franklin, could you go back to the email that was sent on 4 April and the attachment which was the spreadsheet that went before each of the parties and that was discussed at the telephone conference on Wednesday, 4 April, so do you have those two spreadsheets?---Yes, I've got that one from you guys and this one.

PN197

Can you please read out in respect of RCR Tomlinson only the hourly rate that you have down for a C10?---Hourly rate C10 $20.85.

PN198

Can you go across to the first spreadsheet which was discussed? Can you go to the column that says RCR Engineering hourly rate C10? Can you please read that out?---It says C10 plus, I don't know that, but fitter $24 to $26.64, boilermaker $23.92, welder $22.75 to $26.10 and machinist $26 to $29.12.

PN199

Mr Franklin, there's a vast difference between the two sets of hourly rates in those spreadsheets. Do you agree?---I agree there's a difference.

PN200

Mr Franklin, when the offer was put to the workers, which spreadsheet did you talk to them about? Did you talk to them about the spreadsheet and analysis that you had prepared?---When the offer was put to the members, before the offer was put to them, I had had a discussion with Bruce Christopher and we had gone through the difference in rates. He had advised me that the C10 rate was $22.75 and before we went and had a vote at our lunch time meeting, I put it to the members on the floor what was the hourly rate for a C10 and I got the answer of $22.75, although there was some discrepancy around the exact figure, so, yes, it was put to them with the C10 rate of 22.75 - 85, sorry.

PN201

Mr Franklin, that amount does not appear in either of these spreadsheets and we all discussed this?---I took the word of the manager on site who said to me that that was definitely the rate that was a C10.

**** STEPHEN ERNEST FRANKLIN XXN MS MUIR
PN202

All right, Mr Franklin. Mr Franklin, in the spreadsheet that we all discussed which we all agreed to with those hourly rates on it at 24 to 26 and so on?---No, Merrina, I didn't agree to that being correct.

PN203

Your summary of 20.85, in fact, now what you're telling us is that none of those hourly rates are correct?---We've got a lot of different figures and I think that we had sent you through quite a few figures beforehand and we look at the agreements that are in our files and deduct figures from there. I know there is some figures that, you know, when you do them on a calculator, sometimes they seem a bit different.

PN204

Mr Franklin, the offer that was put on the table, do you agree that the offer that was put on the table was an increase based on CPI and it was to be paid every six months?---Yes, that was the offer that was put up.

PN205

Do you also agree with me that knowing what the base hourly rate is is fairly critical to understanding what a CPI increase will mean?---I think I displayed to the members at the meeting that the C10 rate was in question.

PN206

Mr Franklin, can I ask you again, do you agree that understanding the offer that was put by the employer, having a clear understanding of what the hourly rate is is crucial to understanding the final meaning in dollar terms of the offer that was put on the table by the employer?---I think to the individual, yes, it does.

PN207

Your Honour, I have no further questions.

PN208

THE SENIOR DEPUTY PRESIDENT: No re-examination?

PN209

MS FENTIMAN: No, your Honour.

PN210

THE SENIOR DEPUTY PRESIDENT: Thank you. The witness can stand down.

<THE WITNESS WITHDREW [2.11PM]

PN211

THE SENIOR DEPUTY PRESIDENT: Do you want to call Mr Gordon?

PN212

MS FENTIMAN: Unless, Ms Muir, you require Mr Gordon for cross-examination, I am happy for his statement to stand.

PN213

MS MUIR: Your Honour, I don't wish to cross-examine any of the other witnesses.

PN214

MS FENTIMAN: I would seek to tender his statement, your Honour.

PN215

THE SENIOR DEPUTY PRESIDENT: The statement from Mr Gordon who is not called, we will mark this as AMWU3.

EXHIBIT #AMWU3 WITNESS STATEMENT OF BRYCE GORDON

PN216

MS FENTIMAN: Thank you, your Honour.

PN217

THE SENIOR DEPUTY PRESIDENT: This requires me to evaluate on the evidence that's before me whether or not I am satisfied that for the purposes of section 461(1)(b) of the Act, whether or not I am of the view that the applicant is genuinely trying to reach agreement with the employer. Ms Muir has I think quite properly indicated by way of her cross-examination that some of the evidence that is being relied upon in order to establish the contemporary period of negotiations is not necessarily indicative of the bargaining process as such and her cross-examination, Ms Muir's cross-examination has also revealed that there may have been - there's a strong likelihood that there may have been a miscommunication of some basic information that is required for purposes of the relevant employees reaching a properly founded view as to the consequence of the offer that has been put before them, but the task that's before me in relation to the subsection that I am now contemplating which is section 461(1)(b) of the Act is to identify whether or not in the contemporary sense, if I can put it that way, there is a disposition on the part of the applicant, being the AMWU, to genuinely try to reach agreement.

PN218

This invites me to examine the issue of the genuineness of the efforts that are being made. Despite that some matters and events have been alluded to that are not of substance for purposes of demonstrating that matter and despite the miscommunication in relation to some of the issues that go to the proper calculation of the economic benefit of the offer, I am not of the view that the efforts in total were lacking genuineness and genuineness in trying to reach agreement.

PN219

The genuineness requirement invites me to test whether or not the efforts of the applicant are properly motivated whilst in my view and as Ms Muir's cross-examination has demonstrated that there might have been, there is a strong likelihood of some misinformation being injected into the system and into the process of evaluation on the part of employees, it does not encourage me to form a view that that misinformation or in relation to the incidents that might have been inappropriately construed to be a part of the negotiations process are indicative, taken together or in isolation, of an attempt to fabricate efforts to reach agreement or were attempts to sabotage or in some way divert the process of reaching agreement.

PN220

In think properly construed, the circumstances are that even though it may have been an imperfect process, that the efforts by the AMWU to make agreement in the contemporary period were genuine and again I emphasise that is despite the fact that Ms Muir's cross-examination has revealed some imperfections in that process, in my view, nonetheless that the conduct in the contemporary period is indicative of an effort to genuinely try to reach agreement, though again I know that from what has been put before me, a more coherent and more accurate information based process would have been more beneficial, but equally so in relation to that last matter, I take Mr Franklin's evidence as I understood it, which was uncontested, that he obtained the base rate from his discussion with the employer's manager, but, anyway, look, I put that to the side because it is in effect a moot issue.

PN221

As I said, the test is to look to the proper motivation and the proper motivation - the motivation to my mind is not indicative of fabrication or alternate intention. The intention was in my view to bring to a conclusion an agreement making process which has been in a long period of gestation, which has been put aside for various reasons by the parties over the course of time since 23 May 2006, which was and is indeed very close to being finalised now, even though the parties are still stalled at the issue of the way in which the quantum can be finally agreed, so for purposes of section 461(1)(b) of the Act, I find that the applicant is genuinely trying to reach agreement with the employer and as a consequence, I will now move on to the other statutory tasks or statutory deliberations.

PN222

In relation to 461(1)(c) of the Act, I am required to ascertain as to whether or not I am satisfied that the applicant is not engaging in pattern bargaining and there is nothing before me that suggests that the applicant is engaging in pattern bargaining unless, Ms Muir, do you want to bring something to my attention that I am not aware of?

PN223

MS MUIR: No, your Honour.

PN224

THE SENIOR DEPUTY PRESIDENT: Thank you, so that conclusion that I reached prior to Ms Muir's commentary stands. Next I am required to consider whether I should exercise any discretion to refuse the application, this is pursuant to section 461(2)(a) of the Act on grounds that the granting of the application would be inconsistent with the object of this division or else that the applicant or the relevant employee has at any time contravened a provision of an order made under division 4 of part 9.

PN225

If I can dispose of the latter first. As I have made no order in relation to a relevant employee or the applicant in respect of section 659 of the Act, there can be no contravention of that provision. Is there any claim that the granting of the application would be inconsistent with the object of the Act at all which is that section 449 of the Act?

PN226

MS MUIR: No, your Honour.

PN227

THE SENIOR DEPUTY PRESIDENT: Well, there is no need for me to exercise my discretion in respect of either of those matters in section 461(2)(a). Does the application identify a person by name as the nominated ballot agent? Well, in this case there's no-one mentioned by name, but the AEC is the nominated ballot agent and it is one that - in the event I grant the order, it's a body with whom I would concur as an appropriate body to be authorised as the nominated ballot agent for the purposes of section 480 of the Act.

PN228

For the purposes of section 463(5) of the Act, I need to be satisfied that there are no exceptional circumstances afoot that would satisfy that the Commission should extend the period of written notice of industrial action from the statutorily defined three days to up to a period of seven days. Are there any exceptional circumstances that require me to consider whether or not the period of written notice should be extended?

PN229

MS FENTIMAN: Nothing, your Honour.

PN230

THE SENIOR DEPUTY PRESIDENT: Ms Muir?

PN231

MS MUIR: No, your Honour.

PN232

THE SENIOR DEPUTY PRESIDENT: Given that this is an application of the kind described in section 467(1)(a) of the Act, can the parties confirm that no person will be included in the roll of eligible voters for the ballot should such an order be made who is bound by an AWA whose nominal expiry date has not passed?

PN233

MS FENTIMAN: We can confirm that, your Honour.

PN234

THE SENIOR DEPUTY PRESIDENT: Thank you. For the purpose of section 463(2) of the Act, can the applicant confirm that a postal ballot is sought for this matter? This is an attendance ballot and can the parties explain to me for purposes of section 463(2)(b) of the Act why a personal attendance ballot is more efficient and expeditious than a postal ballot in these circumstances?

PN235

MS FENTIMAN: Your Honour, here all the employees are contained on the one work site and the majority of employees either work a morning or afternoon shift, allowing them all to vote in attendance ballots held on site for one day and most employees employed under the certified agreement are permanent employees. It is submitted that the relevant employees are accustomed to voting in union and workplace elections by attendance ballot and it would therefore be more efficient to use this method of balloting and that it would be more effective use of energy and resources in the circumstances where there has been such a custom and practice.

PN236

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Muir, do you have any submission in relation to that matter?

PN237

MS MUIR: No, your Honour.

PN238

THE SENIOR DEPUTY PRESIDENT: Thank you. In my view, I should make the orders as requested and the orders as applied for and I should make the orders in respect of an attendance ballot. I now need to settle the terms of the ballot and the voting roll orders and as you know, the AEC has - as the parties will appreciate, the AEC has substituted an amended timetable, but left some matters for the parties to resolve as to opening and closing time. I suspect for our purposes now that I have made my conclusion in respect to the orders, we will settle the terms of the orders off the record. Are there any other matters that need to be dealt with on the record?

PN239

MS FENTIMAN: Was your Honour intending to do anything about the contravention of the orders that were made in relation to the posting of the notice?

PN240

THE SENIOR DEPUTY PRESIDENT: It wasn't my intention because - Ms Muir, did you hear the question then?

PN241

MS MUIR: Yes, I did.

PN242

THE SENIOR DEPUTY PRESIDENT: I am being invited to make comment on what should be done in respect of the contravention of the original hearing order which included the direction to the employer to post the employee notice. In my mind, the provisions of the Act as couched in the objects are facilitative and I have adopted a facilitative approach to understanding how those provisions of the Act can be given proper effect so that the progress of the application is not disturbed. Whilst it's unfortunate that what I suspect is the proper communication of the intent of the order wasn't conveyed, it would appear to me to be, if I can put it in the vernacular, neither here nor there if I attempted to take any course of action in respect to the apparent contravention of that order. At the end of the day, the objects of the Act have been fulfilled and the application has progressed.

PN243

MS FENTIMAN: Thank you, your Honour.

PN244

THE SENIOR DEPUTY PRESIDENT: Apart from that, I intend to adjourn now and we will settle the orders just in conference. Thanks, everyone.

<ADJOURNED INDEFINITELY [2.26PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

STEPHEN ERNEST FRANKLIN, AFFIRMED PN34
EXAMINATION-IN-CHIEF BY MS FENTIMAN PN34
EXHIBIT #AMWU1 WITNESS STATEMENT OF STEPHEN ERNEST FRANKLIN PN58
EXHIBIT #AMWU2 SUPPLEMENTARY WITNESS STATEMENT OF STEPHEN ERNEST FRANKLIN DATED 13/04/2007 PN58
CROSS-EXAMINATION BY MS MUIR PN84
THE WITNESS WITHDREW PN210
EXHIBIT #AMWU3 WITNESS STATEMENT OF BRYCE GORDON PN215