BP2007/348, Transcript of Proceedings [2007] AIRCTrans 268 (5 June 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16985-1

DEPUTY PRESIDENT MCCARTHY

BP2007/348 BP2007/49

s.451(1) - Application for order for protected action ballot to be held
Liquor, Hospitality and Miscellaneous Union-Western Australian Branch
and
CSBP Limited
(BP2007/348)

s.430(9)(a) - Application for order to suspend or terminate a bp (other circs)
CSBP Limited
and
Liquor, Hospitality and Miscellaneous Union
(BP2007/49)

PERTH

10.08AM, MONDAY, 21 MAY 2007

Hearing continuing

PN1

MR J BLACKBURN: I seek leave to appear on behalf of the applicant together with MR A DAVIES.

PN2

MR J NICHOLAS: I appear on behalf of the LHMU and I also have with me MS E BRADLEY.

PN3

THE DEPUTY PRESIDENT: Thank you. Do you have any issues with Mr Blackburn being granted leave, Mr Nicholas?

PN4

MR NICHOLAS: None at all, your Honour.

PN5

THE DEPUTY PRESIDENT: I have had regard to section 100, Mr Blackburn. Leave is granted. I have listed both of these applications together since it appeared to me from looking at the paperwork that they related to the same issue. I take it that neither of you have any objection to these matters being heard together.

PN6

MR BLACKBURN: Certainly not, your Honour, and I did omit to mention when I sought leave to appear that I seek leave to appear for the applicant in the application to terminate the bargaining period and for the respondent in the application for ballot orders.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR BLACKBURN: There is one minor matter which I've discussed with my friend and we think there is a work around in relation to the hearing of the ballot order and that is section 457(2)(b). When I say my friend and I have discussed that, it can be dealt with without causing any delay, 457(2)(b) says that:

PN9

The Commission must not determine an application for a ballot order until it's satisfied that the persons referred to in subsections 458 who include the employees have had a reasonable opportunity to make submissions.

PN10

Now, while the notice that your Honour directed be required was in fact put up because CSBP operates a four panel roster, one of those panels will not see the notice until tomorrow. It seems to me, however, your Honour, that the prohibition in subsection 2 is only on your determining the application before tomorrow or before those employees have had notice of it and therefore in our submission it would be consistent with the section to commence the hearing and proceed and by tomorrow those employees will have had notice. Alternatively, if your Honour is in a position to make a decision today to defer that decision until after tomorrow morning when those employees will have had notice. Apart from that, your Honour, we have no difficulty and say the two applications should go together.

PN11

THE DEPUTY PRESIDENT: Thank you. Mr Nicholas.

PN12

MR NICHOLAS: Your Honour, we don't have any problem with that approach. My understanding is that three of the panels will have had notice. The other panel to a great extent should be aware of the matter. I understand that emails have gone out from our delegate who is not here today so is unable to give evidence to that effect, so we're happy for a final decision on this matter to be left until after tomorrow morning.

PN13

THE DEPUTY PRESIDENT: Thank you. There is one other issue that I feel obliged to raise, Mr Blackburn and Mr Nicholas. Looking at the paperwork for these applications, it would seem it's likely that Mr Matthew Riordan will be giving evidence. It's probably known to you both, anyway, but Mr Riordan was an employee of an organisation that I was employed by prior to my appointment to this Commission some nearly six years ago, but if there are issues of credibility that arise that I am required to rule on with respect to Mr Riordan, I thought I would bring that to your attention. I don't see it as creating any impediment to me hearing and determining both these applications, but I felt duty bound to bring it to your attention in case you had concerns with that.

PN14

MR BLACKBURN: Thank you, your Honour. The CSBP has no concerns.

PN15

MR NICHOLAS: We have no objection, your Honour.

PN16

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn.

PN17

MR BLACKBURN: Thank you, your Honour. If I can hand up an outline of submissions and does the Commission have the witness statement of Matthew Riordan?

PN18

THE DEPUTY PRESIDENT: I do now.

PN19

MR BLACKBURN: I won't ask the next question, has your Honour had an opportunity to peruse the statement.

PN20

THE DEPUTY PRESIDENT: No.

PN21

MR BLACKBURN: I will commence by handing up the outline of submissions. Your Honour has already indicated that you have perused the application and attached to the application to terminate the bargaining period are some detailed grounds and also some correspondence to the LHMU which sets out the basis on which CSBP contends that the LHMU has not been genuinely trying to reach an agreement and is not genuinely trying to reach an agreement. As we have said in the first paragraph of these submissions, the application for a ballot order and the application to suspend or terminate the bargaining period raise some related and overlapping questions, including firstly whether the union during the bargaining period which is now sought to be terminated genuinely tried to reach agreement with CSBP.

PN22

That bargaining period commenced on 20 April, so there's a question about whether the union has genuinely tried to reach agreement in that time, secondly whether the union is or is not genuinely trying to reach agreement with CSBP and that question arises both in the context of the application to terminate the bargaining period and he application for ballot orders and thirdly whether the union genuinely tried to reach agreement with CSBP before organising industrial action on or about 30 March and 4 April this year and that question is particular to the application to terminate the bargaining period because the Commission must suspend or terminate the bargaining period if before organising or taking industrial action a party did not genuinely try to reach agreement, so I propose to proceed, your Honour, firstly by considering the course of recent negotiations between the union and CSBP, that is by calling Mr Riordan, of course, then having heard Mr Riordan's evidence by considering the course of recent negotiations and once we hear from the other side's witnesses, between the LHMU and CSBP and the LHMUs conduct in those negotiations, secondly by considering what is meant by the term genuinely trying to reach agreement and thirdly by considering the evidence in light of the particular sections to which I have referred.

PN23

The facts in the matter are in our submission as set out in the material attached to the application to suspend or terminate the bargaining period. Broadly, negotiations have been on foot since mid-2006. They got to a point in October 2006 where the issues have narrowed and the only outstanding issues appeared to be at that time wages, the 38-hour week for the LHMU employees and also a question of whether core operators should be classified at level 4 and level 5. In October 2006 the company increased its wages offer and from that point on, the company was led to believe that there were then only two outstanding issues.

PN24

This was confirmed by the union in discussions in January and throughout January when CSBP was led to believe that there were only two outstanding issues, they being the 38-hour week for all operators and core operators to be classified at level 5. That was confirmed in several discussions between in particular Ms Smith acting for the LHMU and Mr Riordan for the company. As will be seen, Mr Riordan was at pains to confirm with Ms Smith that there only two outstanding issues and on the back of that, in reliance on that, made concessions on behalf of CSBP in order to try and achieve an agreement.

PN25

Once those concessions had been made, or after those concessions had been made, on 8 February this year the union increased the list of outstanding demands. It added a number of new claims, including in particular claims for the recalculation of shift allowances and a new claim for further wage increases beyond those which had been previously agreed. CSBP took exception to that. At about the same time, the LHMU applied for ballot orders. That application was heard by Vice President Lawler. CSBP argued before Vice President Lawler that the LHMU was not bargaining in good faith because since October 2006 there had been only two items the subject of discussion, being the 38-hour week for all operators and the core operators to be classified at level 5 and then all of a sudden on 8 February these additional items had been added and shortly after the meeting, very shortly after the meeting, about 20 minutes or half an hour after the meeting on 8 February at which these additional items were added, an application for a ballot order was filed.

PN26

Vice President Lawler found in his decision that the submissions - arguments of CSBP were not without some attraction and he also accepted that CSBP believed that from at least January of 2007 there were only two outstanding issues, but he found on balance that the LHMU had satisfied the requirements for a ballot order and so a ballot order was made. That ballot order was then revoked subsequently on the LHMUs application. What did emerge, though, from that proceedings before Vice President Lawler was that there were in fact four outstanding issues as far as the union was concerned and evidence to that effect was given by Ms Smith in the proceedings and was confirmed in a letter to CSBP on 16 February and the four outstanding issues that the LHMU said in its letter to CSBP were and I quote:

PN27

In terms of the matters that have not been agreed, the LHMUs requirement for an agreement, the four outstanding issues were wage increases, 38-hour week for all operators -

PN28

particular wage increases of six and a half per cent, six per cent and six per cent, 38-hour week for all operators, all core operators to be at level 5 and the recalculation of shift allowances, so that was given in evidence on 12 February before Vice President Lawler, confirmed in writing on 16 February to CSBP, confirmed again at a negotiating committee meeting on 24 February after the LHMU had held a mass meeting of members on 19 February, so at least for a short period the LHMU stuck to its four outstanding issues.

PN29

As a consequence, or in the belief that there were four outstanding issues, CSBP progressively made further concessions in order to try and resolve those four outstanding issues to try and reach an agreement. On 12 and 13 March, CSBP increased its wages offer and following that, CSBP also made other concessions in relation to the core operator level 4, level 5 issue and the claim for a 38-hour week. That then took matters to the stage where by 22 March the LHMU advised CSBP through Ms Smith that the wages issue was now agreed, the 38-hour week proposal and the level 4/5 core operator proposals were also acceptable, but that the outstanding issue was the allowances.

PN30

There was also at that time a further claim put on the table for the allowances to be back paid. This was a new claim. CSBP indicated that it would not back pay the allowances. CSBP did, however, ultimately agree to calculate the allowances in a manner that was satisfactory to the LHMU so that by 22 March all of the four claims that the union had described as outstanding on 12 February had been satisfied and on 22 March Ms Smith for the LHMU was able to say this satisfies all of our claims but for the back payment of allowances. The only thing standing between us and a deal is back payment of allowances.

PN31

Now, shortly thereafter, Ms Smith and the LHMU put CSBPs offer to a mass meeting of members called for the purpose of considering that offer and it was accepted by the mass meeting by a majority. Notwithstanding that, on 26 March which was the same day, sorry, as the mass meeting, following that mass meeting on that day, LHMU representatives including Ms Smith approached CSBP and said, well, we've had a meeting, we've put your offer, a majority voted to accept it, but the majority wasn't large enough and by the way, there are some additional issues that have arisen in relation to chemicals and Ms Smith then tabled two further claims in relation to chemical operators, being a claim for chemical operators at level 7 to move up to level 8 and also a claim for extra payments for shift cover.

PN32

Following that, on 11 April the LHMU - sorry, following that, on 30 March the LHMU gave CSBP a notice of intended industrial action. CSBP immediately applied to the Federal Court for injunctive relief and obtained orders to prevent that action from occurring. Before the orders issued, the LHMU on 3 April gave CSBP another notice of industrial action. The first notice of industrial action related to action by the process operators, a strike of one week and the second notice related to action by dispatch operators.

PN33

In the event, the Federal Court ordered that the LHMU withdraw both notices of industrial action. The Federal Court also made other orders including that the LHMU not initiate any further - sorry, not serve any further notices of industrial action in reliance on the bargaining period that was then in place and also that the LHMU not issue a new bargaining notice which named other unions as negotiating parties and not issue a new bargaining notice which sought to make a multi-union agreement, so following the proceedings in the Federal Court, the union then notified a new bargaining period and said that it no longer wished to reach an agreement pursuant to the old bargaining period which had named erroneously apparently not only CSBP, but also the AMWU and the CEPU as other negotiating parties.

PN34

So the LHMU notified CSBP that it no longer wished to reach an agreement pursuant to that bargaining period and served a new bargaining notice initiating the bargaining period which is on foot today and which is sought to be terminated. Nothing changed, however, in the negotiations. The negotiations had always been for a multi-union agreement. The LHMU had always been party of a single bargaining unit from the very first day when, in early days in 2006, when a draft agreement was prepared by a single bargaining unit, it was always intended that it be one agreement covering three unions and with the advent of the new bargaining period which began seven days after it was served, the notice was served, nothing changed.

PN35

The agreement that was pursued continued to be the same agreement that had been pursued all along, being an agreement to cover three unions and persons eligible to be members of those three unions. On 12 April the LHMU confirmed that it was still pursing these two additional matters that had now been raised on 26 March, being extra payment for shift cover and extra payments for level 7 operators and chemicals to be reclassified at level 8 and they then added yet another new claim, this time a claim for prill plant operators on level 4 to be reclassified at level 5, whether or not they completed any additional training.

PN36

Previously there had been a claim for core operators at level 4 to be classified at level 5 and that had been settled on the basis that the operators would have to undergo training and on completion of that training, they would be classified at level 5 and there was other conditions around that in relation to whether they be paid or not while they did the training and how long they had to complete the training and so forth, but now on 12 April a new claim was made and this time it was for prill plant operators on level 4 to be reclassified at level 5 without any additional training, just to go straight up, so that was another new claim and those three claims for shift cover, level 7 chemical operators to move up to level 8, prill plant operators on level 4 to be reclassified at level 5 have been maintained to this day.

PN37

They are all claims that were made on or after 26 March, on or after the LHMUs members had a meeting and voted to accept CSBPs offer and, of course, all made in the face of repeated assertions by the union since 12 February that there were only four outstanding issues. Once those four outstanding issues were resolved, the union came along with more outstanding issues, much in the way as it had done on 8 February when for several months it had given CSBP to believe that there were only two outstanding issues, being the 38-hour week and the level 4/5 core operator issue. When concessions had been made on those two outstanding issues on 8 February, it added some more issues.

PN38

That is the nub of the argument as far as CSBP is concerned. CSBP says that adding items for negotiation in that manner, particularly when parties are within sight of an agreement, is not consistent with bargaining in good faith, is not consistent with genuinely trying to reach an agreement. Not giving effect to the decision of the meeting of members called expressly for the purpose is a further indicator that the LHMU is not bargaining in good faith. The LHMUs conduct in our submission will need to be viewed over a period going back to January of this year at which time it was asserting quite unequivocally that there were only two outstanding issues.

PN39

The LHMU seems to have this view that it can say - it can reserve to itself a right to change its position on any issue at any time. In our submission, a party cannot avoid the requirement to negotiate in good faith and genuinely try to seek an agreement by in effect saying ..... or by making assertions such as these are the only outstanding issues, this is the only thing preventing us from reaching agreement with its fingers crossed behind its back which is what the LHMU has done consistently since January of this year.

PN40

That is the nub of the argument, your Honour. There is an additional argument which is not set out in the written outline because of time. The further argument is one that was developed before your Honour in the Carrier Air Conditioning matter and your Honour did make a decision in relation to that, but in this case the argument has another twist. That argument, of course, your Honour, is that it's our submission that the LHMU cannot take industrial action in support of an agreement that covers more than one union and that is exactly what is sought to be done here.

PN41

The argument in this case has a further twist because as your Honour will see, the orders of the Federal Court issued by Gilmore J injuncted the union from issuing a bargaining period which seeks a multi-union agreement and consequently the new bargaining period that was issued by the union firstly only named CSBP as the other negotiations party and secondly in the particulars and your Honour will be aware that section 426 I think it is requires quite unequivocally parties when serving the initiating notice also provide particulars of in 426(b):

PN42

The types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the proposed collective agreement.

PN43

Now, parliament didn't just put that in there so parties could put whatever they like in the box. What has occurred here is that the LHMU, knowing that it's been injuncted by the Federal Court from issuing a bargaining notice which seeks a multi-union agreement, has said, all right, well, we'll get around that. In the bargaining notice, we won't describe the CEPU and the AMWU and their member, we'll just say it's an agreement for our members and, of course, that gets around the injunction of the Federal Court, but what it's also done is they've told a lie because at no stage have the negotiations diverted to a negotiation for a single union agreement.

PN44

The drafts that are going back and forth between the parties and which the LHMU has submitted and which Mr Nicholas has submitted to CSBP are for a multi-union agreement. The negotiations have continued seamlessly, despite the initiation of the new bargaining notice, but what the LHMU has done is falsely completed the bargaining notice in order to ensure that it gets around the injunction imposed upon it by the Federal Court, so when the parliament has asked the LHMU to give particulars of the types of employees whose employment will be subject and the other persons who will be bound, the other persons who will be bound, the LHMU has deliberately advisedly chosen to omit and dishonestly chosen to omit the CEPU and the AMWU and what it's now seeking today are ballot orders to enable it to take industrial action or its members to take industrial action purportedly in support of the agreement described in the bargaining notice.

PN45

Of course, that's not the reality. The reality is that they're seeking to take industrial action in support of the agreement that they've been pursuing all along as a single bargaining unit which is an agreement with more than one union, so there's a serious question of an abuse of process here. The LHMU has just thought, well, look, we'll just put whatever we like in there and that will get us around the Federal Court injunction and the Commission won't mind that we've told a lie and misled it, we'll just plead the objects of the Act or the objects of the section and we'll be right.

PN46

In actual fact, the negotiations the evidence will reveal have continued around a multi-union agreement that is not the agreement that is referred to or described in the particulars to the bargaining notice and that is another reason why we say the LHMU is not bargaining genuinely and why ballot orders cannot issue in this case and why the bargaining period should be terminated. Your Honour, with that introduction, I would like to call Mr Riordan.

PN47

THE DEPUTY PRESIDENT: Yes. Just a moment, Mr Blackburn. Mr Nicholas, did you wish to give a preliminary outline of what your argument is prior to any evidence?

PN48

MR NICHOLAS: That may help, your Honour. The LHMU not surprisingly has quite a different perspective on negotiations and its own conduct and so perhaps it may help the Commission if we just outline broadly what that perspective is before we launch into the evidence.

PN49

THE DEPUTY PRESIDENT: Yes.

PN50

MR NICHOLAS: Just as a preliminary matter, your Honour, what the LHMU proposes to do is rely on the written submissions it provided this morning in relation to both matters and specifically in relation to the application for the protected action ballot. There's a range of matters dealt with there that deal with the procedural requirements the Commission has to be satisfied for and we rely on those submissions. I take guidance from you, but the approach I would suggest is unless there is an objection and it is open to the CSBP to object on any of those procedural matters, then those submissions should just be taken as they are. There doesn't need to be any argument over agreed matters like that.

PN51

THE DEPUTY PRESIDENT: Yes. Well, I haven't had the time to peruse that, Mr Nicholas, so I will work on that basis unless there's issues that arise as a result of me having had the opportunity for reading it and anything else that might be brought to my attention.

PN52

MR BLACKBURN: Your Honour, because of the time in which these matters are necessarily brought on, my friend hasn't had the chance to read our submissions and I haven't had the chance to read his submissions, so I don't know what is in there at the moment, but we'll certainly endeavour not to raise matters that don't need to be raised.

PN53

THE DEPUTY PRESIDENT: Thank you.

PN54

MR NICHOLAS: Thank you, your Honour. Your Honour, the LHMUs position is certainly that we have changed our position on a number of occasions, but the position that was put at any particular time needs to be understood in the context of the general approach that the LHMU took to negotiations and expressed to CSBP which was that nothing was agreed until everything was agreed and we reserved our right to change our position and there's nothing wrong with a negotiating party changing their position in the course of negotiations and no adverse finding should be made against the union for doing so.

PN55

The approach the union has taken is to make its claim and then in the spirit of trying to reach an agreement explore compromise positions and that's what it has done and so when CSBP say, well, the union has made out that - represented that there's only these issues that need to be resolved and then they're very disappointed when that doesn't resolve it, the approach of the union has always been we will explore those compromise positions and take those positions back to our members, but we won't be bound by any position we take that is in furtherance of a compromise.

PN56

We have to have the room to explore that option, take it back to members, once it's in a form that we think might fly and then take that back and explore it with our members. The fact that any particular one proposal at any particular one time hasn't been acceptable doesn't indicate the LHMU and the negotiators on behalf of the LHMU haven't been genuine in trying to reach agreement. What our submission is, what it does indicate is the LHMU has been very interested in reaching agreement and has been prepared to explore compromise positions and has always taken those compromise positions back to its members and explored them with it.

PN57

Now, everyone is disappointed that we haven't been able to reach agreement. We thought we have been close on several occasions, but the fact that we haven't been able to reach agreement doesn't indicate that the LHMU hasn't genuinely tried to reach an agreement. CSBP has been aware of that approach that the union has taken all the way along and this will come out in evidence, your Honour, but the approach that nothing was agreed until everything was agreed was clear to CSBP. They were aware that that was the approach we were taking and we explored options on that basis.

PN58

Since the start of negotiations, your Honour, the LHMU hasn't made any claim that is not justifiable or is capricious without reason, that CSBP might want to suggest to you. We've made it clear that nothing is agreed until everything is agreed. We have attended meetings. We've seriously considered offers and we've explored compromise proposals. We've represented those compromises to our members and then on the basis of feedback and what we think is in the best interests of our members, we've come back and changed our position and said, well, actually, that compromise position will not work and then put to them something that will.

PN59

Beyond that and I suppose much more recently in terms of the long-standing negotiations, the LHMU has put considerable effort into drafting an agreement that had been lacking on both sides of negotiations. The LHMU has put in a lot of work getting a draft agreement that has everything agreed or words that are able to be agreed to when a final agreement is made. Now, up until very recently, there just hasn't been any form of written document that CSBP could really say, well, we do have an agreement. There's a certain set of words that everyone has agreed with. That just hasn't been available and it's been the LHMU that's put in the lion's share of the work to get that agreement drafted.

PN60

MR BLACKBURN: I object to that submission. Unless my friend is proposing to put the agreement in, the question of who has done the lion's share of the work, the draft agreement my friend is referring to, it's an agreement that the LHMU provided to CSBP after CSBP had given it an agreement and the LHMUs agreement is a marked up version of the CSBP draft.

PN61

MR NICHOLAS: Your Honour, this will go into evidence. There will be draft agreements available and you can see how the drafting of the agreement has unfolded. I think we should leave that for the evidence, rather than argue about it now, but, your Honour, there will be no evidence of some kind of pernicious strategy of the union of holding back a set of claims that it always knows we're going to make once we've got a set of concessions about of CSBP. There won't be any evidence of that because that just isn't the case. The LHMU has always been trying to reach agreement.

PN62

In terms of the mass meeting that was referred to by my friend, the CSBP misunderstand what happened in terms of what our membership was telling us on that day, I think it was 26 March. In fact, on that day there wasn't one mass meeting, there were two meetings and they covered quite different areas of the membership within CSBP. The evidence will come out that at one of those meetings there was a majority of the members there that agreed that the offer was acceptable. At the other meeting, the offer went down like a lead balloon.

PN63

If it wasn't unanimous, it was next to unanimous that those members didn't agree with the offer and that was because of the special circumstances of those set of employees that were at that second meeting, so when the LHMU came back and said, well, there was a slight majority at one mass meeting, but there's another set of things that need to be addressed, that's because there were serious issues for a substantial group of employees at CSBP that obviously needed to be addressed. It's not as if the LHMU has gone to its members and said, well, what do you think, everyone, is this good enough and everyone said - well, not everyone, a majority have said, yes, that's okay and then we've gone back and concocted something else. We're not in the business of doing that.

PN64

We want to reach agreement just as much as CSBP does, but we also want to look after the interests of all our members and that requires looking at the specific circumstances of different sections within the employees of CSBP. In relation to the Federal Court matters, I really do take exception to the approach that CSBP put to you in relation to the issuing of the second bargaining notice. The first bargaining notice was objected to by CSBP in the Federal Court on the basis, as my friend outlined, that the other union negotiating parties were referred to in the bargaining notice.

PN65

The LHMU went back and it made, CSBP made quite a big deal in the Federal Court that, in fact, it was the company who could decide whether it would make a multi-party agreement and it wasn't a union negotiating party who could issue a bargaining notice and take industrial action in furtherance of that. In good faith and to try to get a valid bargaining notice that the union membership could express its will under, the LHMU has gone back and issued another notice just by itself and gone back to CSBP and said, well, here's the agreement again, if you still want to keep having a multi-party agreement, well, that's fine, we'll send back draft agreements on that basis, but that's not what we're interested in. We're not making a claim for a multi-party agreement, we're making a claim for the things in that agreement that are better for our members.

PN66

MR BLACKBURN: I am not sure if my friend is giving evidence now or trying to give evidence. Is he saying that those things were said or is he putting that submission? Either way, I think that's a matter for evidence. Maybe my friend ought to get into the witness box.

PN67

MR NICHOLAS: Perhaps I will, your Honour, but at this point - - -

PN68

THE DEPUTY PRESIDENT: Mr Nicholas, Mr Blackburn, I won't take anything as fact until I hear any evidence and I will rely on the evidence as to what my findings are in respect of any facts.

PN69

MR NICHOLAS: Thank you, your Honour.

PN70

THE DEPUTY PRESIDENT: In that respect and given the time and the expeditiousness these matters are dealt with, I will be extremely reluctant to make findings of fact on the basis that a submission made from the bar table isn't challenged at any particular time, so if I intend to make findings of fact on anything that's said from the bar table, I will alert both parties to that.

PN71

MR NICHOLAS: Certainly, your Honour, and I suppose I am in a particular position in that respect, presenting the case of the union before you because I have had some deal to do with the drafting of the agreement. Just briefly, I would like to mention what we say your approach should be in relation to the two previous Commission decisions and the written submissions deal with this. In fact, two previous Commissioners have found that the LHMU on its approach to bargaining has been bargaining in good faith and what happened in the second hearing in relation to a protected action ballot is that CSBP did not even object on the grounds that the LHMU were genuinely trying to reach agreement.

PN72

That submission just wasn't even made and now it comes before you and says there's been this great grand plan that the union is holding things back and hasn't genuinely tried to reach agreement. Your Honour, we say that the approach that you should take is an objective one on the basis of the evidence and we say the evidence will show that the approach that I've outlined to you will come out in the evidence that the LHMU has genuinely been trying to reach agreement notwithstanding the fact that it has changed its position on particular matters over the course of those negotiations.

PN73

THE DEPUTY PRESIDENT: Thank you, Mr Nicholas. Perhaps, Mr Blackburn, if you can call your evidence.

PN74

MR BLACKBURN: Yes, Your Honour, if I could call Mr Riordan. Your Honour, could we have orders in relation to witnesses - - -

PN75

THE DEPUTY PRESIDENT: Sorry?

PN76

MR BLACKBURN: Can we have an order in relation to the exclusion of witnesses?

PN77

THE DEPUTY PRESIDENT: Do you have a view about that, Mr Nicholas?

PN78

MR NICHOLAS: I have got no objection, sir.

PN79

THE DEPUTY PRESIDENT: On my list of Ms Smith and Mr Townend. There's no other witnesses that I think you intend to call other than Mr Riordan, are there, Mr Blackburn?

PN80

MR BLACKBURN: No, your Honour.

PN81

THE DEPUTY PRESIDENT: Those persons, that is Ms Smith and Mr Townend will be excluded from the room. They shouldn't discuss anything related to any evidence that they give, neither should Mr Riordan discuss any evidence that he gives with either of those two other witnesses. I will rely on you, Mr Nicholas, and you, Mr Blackburn, to ensure that the witnesses are aware of that.

PN82

MR NICHOLAS: Certainly, your Honour. They were in the room and heard all that.

PN83

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Blackburn.

PN84

MR BLACKBURN: I will call Mr Matthew Riordan, your Honour.

<MATTHEW JOHN RIORDAN, SWORN [10.53AM]
<EXAMINATION-IN-CHIEF BY MR BLACKBURN

PN85

MR BLACKBURN: Mr Riordan, do you have a copy of your witness statement here?---No, I don't.

PN86

May the witness be provided with a copy? Mr Riordan, if I can take you through the formal parts of your witness statement firstly, you're employed by CSBP as the human resources manager?---That's correct.

PN87

You began in about May 2006?---Yes.

PN88

CSBP as I understand it employs in addition to staff employees trades employees and production employees?---That's correct.

PN89

Manufactures a variety of chemicals?---Yes.

PN90

CSBP has about 30 employees at country facilities?---That's right.

PN91

And about 530 or so at Kwinana?---That's correct.

PN92

At Kwinana, if we leave out the staff, you've indicated in your statement that CSBP employs approximately 120 process technicians?---That's right.

PN93

And they're eligible to be members of the LHMU?---That's correct.

PN94

Sixty-four dispatch operators?---Yes.

PN95

Eligible to be members of the LHMU?---That's right.

PN96

And 50 tradespersons?---Yes.

PN97

And they fall under the CEPU and the AMWU?---Correct.

PN98

There's a four panel shift roster in place?---That's correct, for process operators.

PN99

Operators work four on, four off?---That's correct.

PN100

You say in your statement that based on your knowledge of a previous application for a ballot order and declaration of the Australian Electoral Commission that you believe that approximately 150 of the 184 dispatch employees and process technicians at Kwinana are LHMU members?---That's right.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN101

There is a current enterprise bargaining agreement in place?---Yes, there is.

PN102

That expired on 30 September 2006?---Yes, it did.

PN103

The parties to that are the AMWU, the CEPU and the LHMU?---That's correct.

PN104

In about June 2006, can you tell me just briefly what occurred there in terms of negotiations towards a new agreement to replace the current agreement?---Yes, CSBP looked to continue or commence negotiations for a new enterprise agreement and at that time CSBP in the form of myself and Mr David Stewart, a human resources senior adviser, met with union delegates of the LHMU and the AMWU to look to consolidate the three documents that were in existence and I might elaborate on that just for clarification. Our current certified agreement which as you point out has expired, so obviously the EBA itself, we have what's called an intent document which is an appendix to the EBA and underpinning both those is an award and we met in June to consolidate those three documents into one and we did that with the union delegates over a couple of weeks and that's primarily what took place in June.

PN105

What occurred then after that?---After that, we looked to meet with employee representatives and they included union officials and primarily Mr Greg Wilton from the CEPU, Mr William Tracy from the AMWU and at that time Mr Geoff Townend from the LHMU along with their respective employee representatives to continue to negotiate towards a new agreement.

PN106

Was it one new agreement for all three unions?---Yes, that's correct. It was a tripartite agreement.

PN107

Then you had various committee meetings throughout 2006 to negotiate that new agreement?---That's right. In October, late October, I think it was around the 25th, we looked to put an offer or up until that time, CSBP was offering numerous entitlements to try and progress an agreement and up to that point in time, in terms of wages we were offering five and a half per cent, four per cent year two and four per cent year three.

PN108

Five and a half per cent?---Year one.

PN109

Four per cent?---Four per cent in year two and four per cent in year three and I think it was around October was when negotiations commenced around CSBPs offer.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN110

Who was negotiating for in particular the LHMU, just who was negotiating for the LHMU?---Up until that time, it was Mr Geoff Townend and employee representatives being Mr Richard Searle. These were the employees who predominantly came to the negotiating committee meetings, Mr Richard Searle, Mr Trevor Harmon, Mr Shane Johnson and there were other employees that came from time to time.

PN111

Was Ms Carolyn Smith involved at that point?---Not up until that point, no.

PN112

At that point you say the unions were negotiating for a single agreement, a tripartite agreement you described it as?---Yes.

PN113

Has that ever varied?---No. There's always been a desire for all three unions to remain on the one agreement.

PN114

A desire on whose part?---The unions. We haven't objected to that. However, that's how negotiations have continued.

PN115

Have any of the unions ever said to you that they want to have a single union agreement for their union?---No, and, actually, we raised that point with - skipping ahead a bit, but a couple of months ago we actually canvassed that issue with the unions to which the response was, no, they would prefer to stay under the one agreement.

PN116

Who responded in that way?---Mr Will Tracy from the AMWU, Mr Greg Wilton from the CEPU and I think it was Mr Townend from the LHMU.

PN117

That was a couple of month ago?---Most recently when we last - the last time we raised it was around February.

PN118

If I can then take us on to about 25 October, you had a discussions with Ms Carolyn Smith, October last year?---Yes, that's correct.

PN119

Can you take us through your recollection of that discussion?---I had contacted Ms Smith given that negotiations had been going several months by that point in time. I wanted to find out from Ms Smith really - I was keen for CSBP to try and resolve the negotiations and I wanted to find out what basically it was going to take to reach agreement with the LHMU on their issues and contacted Ms Smith really to pose that question to her. Her response was that there were two outstanding issues, the 38-hour week and the core operator issue were the primary issues for them and that she also indicated that if CSBP was prepared to offer five and a half per cent, rather than the five and a half, four and four, if CSBP was prepared to increase their offer to five and a half per cent year one, five per cent year two and five per cent year three, look at as I said getting operators from a 42-hour week to a 38-hour week over the life of the agreement and fix the core operator issue, that would fix their issues.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN120

As a result of that, did you understand that whatever Ms Smith was putting to you would have to go back to their membership?---Absolutely, yes. I appreciated that for an agreement to be made that it has to be voted on by the members, but from Ms Smith's actions, I took it to mean, well, look, if we can meet those outstanding issues, from Ms Smith was saying, if we could meet those issues, then it would go to the opportunity for the members to vote on that.

PN121

As a result of Ms Smith saying those things to you, including that five and a half per cent in year one, five per cent year two, five per cent in year three would fix it, what then happened and perhaps I shouldn't say as a result of, but what happened after Ms Smith said those things to you on 25 October?---Well, CSBP then made a concession to try and obviously promote reaching agreement. We had a meeting with the negotiating committee and offered the five and a half per cent year one, five per cent year two and five per cent year three. We put forward an option on the core operator issue and it might pay just to explain what that issue is. As part of the negotiating process, we have operators at CSBP on currently seven different classification structures or seven different levels, if you like. Part of the union's claim was that they wanted operators in the chemical parts or chemical operations of CSBP - I will just expand on that. We have a fertiliser area where operators manufacture fertilisers for the company and a chemicals division or a chemicals area and they manufacture things like ammonia, ammonium nitrate, sodium cyanide, so it was those operators in the chemical plants that they sought to be recognised on a higher level, in a nutshell because they thought that those plants were more complex to operate, so they sought that operators be - a core operator is someone who can competently operate a single plant, so, for instance, operate the ammonium nitrate plant is what a core operators is and so the union, the LHMU was seeking that all single core operators be taken from currently level 4 and remunerate them at level 5 in the classification structure. CSBP put forward an offer where - sorry, I'll take a step back again. Part of the union's log of claims was also that chemicals operators be recognised for their more complex operating skills, so CSBP offered that chemicals operators with a single core would be paid at level 5 and fertiliser and prill plant operators be paid at level 4, so that is essentially what CSBP put forward to resolve - sorry, as a solution. In terms of resolving the union's claim that all core operators be on level 5, CSBP put forward, well, look, if you're saying that fertiliser operators should be paid at level 5, we will facilitate that by providing them with training to get to level 5 and provided they commit to undertake that training, we will remunerate them in the form of an allowance. What we didn't want to do was simply remunerate them at level 5 because that then had no distinction between the fertiliser operator and the chemical operator and so we were no longer meeting the log of claims which was a distinction to recognise the chemical operators, so as I said, we put forward to have some training to facilitate level 4 fertiliser and prill plant operators with an allowance to get to level 5 to resolve that claim.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN122

If I can just take you for a moment to your witness statement at paragraph 32. When you say that on 30 October CSBP in paragraph (b) -

PN123

agreed to train core operators on level 4 so that they could get to level 5 -

PN124

you're saying in fact that it was so they could be paid an allowance at that point. Is that what you were proposing?---Well, what we actually wanted, CSBP was offering was that we would provide training and in return for that training and to resolve this claim of all core operators be paid at level 5, we said we provided fertiliser and prill plant operators undertake the training, we will provide an allowance provided they are willing to do that.

PN125

It was an allowance - was it equivalent to the difference between level 4 and level 5?---Correct.

PN126

So to that extent, 32(b) really means so they could pick up an allowance that would remunerate them in effect as a level 5?---That's correct.

PN127

That was on about 30 October you've made the new wages offer of five and a half, five and five which is what Ms Smith had said would fix it for the LHMU and you put forward this proposal to train prill and fertiliser operators so they could get this allowance?---That's correct.

PN128

Why did you make those concessions?---Because we wanted to reach agreement. We sought to resolve the matters as expeditiously as possible and we believed from Ms Smith that that is what would satisfy the requirements of the LHMU and they would then put it to members to vote on.

PN129

I don't think we contested there was a mass meeting of union members just before Christmas, on 21 December?---That's correct.

PN130

What happened after the mass meeting and in the early part of January?
---Mr Townend and Mr Searle met with me after the mass meeting on 21 December and basically communicated that there wasn't a lot of people present at that mass meeting, citing reasons like going away for Christmas and that they would seek to hold further discussions with employees and meet with employees in the new year. Once the new year arrived, it was on 5 January that Mr Martelli and myself - - -

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN131

Who is Mr Martelli?---Sorry, Mr Martelli is the general manager of operations at CSBP. Mr Martelli and I made a phone call to Ms Smith basically to say that, look, it's now 5 January and we haven't heard anything further since 21 December from you or your union, basically where are we going from here to resolve and to get agreement and Ms Smith indicated that in her mind we weren't far from agreement and that basically there was two outstanding issues in her mind at that time. She indicated that wages were not the stumbling block, that the two issues that needed fixing were the 38-hour week, bringing all operators on to a 38-hour week over the life of the agreement and moving all core operators to be remunerated at level 5.

PN132

Was there anything further said in that meeting?---Ms Smith indicated that they were the issues that the LHMU required addressing. She also indicated that the trades obviously were party to the negotiations, when I say the trades, the AMWU and the CEPU are party to the negotiations, they had outstanding issues at that time and we needed to address those and basically I think her words were if we stuff up those issues, then we're going to still have a problem with the LHMU.

PN133

This was the conversation on 5 January. Did either yourself or Mr Martelli endeavour to clarify that there were no other issues?---Mr Martelli, well, both myself and Mr Martelli were very keen to make sure that there were no other outstanding issues and Mr Martelli was at pains to inquire to Ms Smith, look, are you sure these are the only two remaining or outstanding issues, the 38-hour week and the core operator issue and went on to say that, look, there's not a whole lot of point in continuing these discussions if it's simply going to be a case of, well, if we get agreement on those, thanks very much for that, but we continue to have further issues, so we wanted to ensure that we were quite clear on what the outstanding claims were from the LHMU and that was put to Ms Smith and again Ms Smith reiterated that the only two outstanding issues were the 38-hour week and the core operator issue.

PN134

Attached to your witness statement at MR1 is an email from Ms Smith dated 19 January which has a second page which contains some wording around fertiliser and prill plant operators and then below that the 38-hour week. Can you tell me what this email is about?---Certainly. In the same conversation on 5 January we outlined to Ms Smith, look, granted that - thanks that they're your only two remaining claims, we've done our best to date to try and address those in negotiations. We could not at that time come up with any alternative wording that seems to meet what the LHMU were seeking and we said to Ms Smith, well, look, can you go away and consider some wording and put that wording back to us, because we've done our best so perhaps it would be useful if you could go away and develop some wording and send that back to us. That's when on I think it's the 19th that the email came through.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN135

Yes, so this is that wording?---Yes, on 19 January Ms Smith then provided this wording so as you can see, it's the fertiliser and prill plant operator, this is the core issue, sorry, the core operator issue that I've been referring to, that was her suggested wording on how to fix that issue.

PN136

So just on that issue, the proposition is not that they have an allowance, but that - sorry, it says that they be paid at level 5. Now, can you clarify, was it intended that they be paid the allowance or as far as you're aware was the union intending that they actually be classified at level 5 as well as be paid at level 5?---Well, discussions had been around providing an allowance. Based on that wording, I assumed that they were looking at exactly what they've suggested there, to pay them at level 5 and they would get paid at level 5 provided they undertook the training as the second part of that paragraph there alludes to, provided they got the training, they would receive remuneration at level 5.

PN137

Following the receipt of this email on 19 January, you then had a further conversation with Ms Smith. Do you recall the next conversation you had after 19 January?---It would have been - the next conversation I can recall was around 31 January where I contacted Ms Smith to basically confirm that, look, these are still the remaining issues being the core operator issue and the 38-hour week and again Ms Smith confirmed to me that they were the only two issues that the LHMU sought to resolve and again that wages were not an issue at that time.

PN138

So Ms Smith confirmed that they were the only two issues. What then occurred?
---It would have been around that time that we received a notice initiating a bargaining period from the LHMU. I think we actually received that on 30 January.

PN139

You received the notice before that discussion on the 31st?---That's correct.

PN140

So in paragraph 49 where it says in the late afternoon of 30 January after the conversation referred to, take out the words after the conversation referred to? It was actually on the 30th?---Yes, that's right. We received the notice of initiation of a bargaining period on 30 January, so knowing where things were headed, obviously I wanted to clarify if we continue discussions, we want to make sure that these are the only two outstanding claims and that's why the conversations on the 31st centred along what are your remaining claims?

PN141

I see, because you had received this bargaining notice?---Correct.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN142

The bargaining notice is attached to your statement at annexure 2 and it identifies the CEPU and AMWU as other negotiating parties and on the second page of the bargaining notice describes the persons who would be covered and bound as employees of CSBP Ltd, members of eligible to be members of the LHMU, CEPU and AMWU and as well the LHMU, the CEPU and AMWU, so that's the bargaining notice you're referring to?---That's correct.

PN143

On the third page there's a summary of matters proposed to be dealt with?
---That's right.

PN144

So you're saying that's what caused you to want again to clarify with Ms Smith on the 31st that there were only two outstanding issues?---That's correct. Certainly we were given that the bargaining period outlined the log of claims. I was concerned that to date again the issues that we were talking about was the 38-hour week and the core operator issue. Wages were not the issue, so I wanted to confirm with Ms Smith that, look, granted that you've sent us a notice of bargaining period outlining your log of claims, as you've shown on page 3, I was very keen to determine that the only two issues that required resolving were the 38-hour week and the core operator issues, so again similar to Mr Martelli on 5 January, I was at pains to make sure that they were the only two outstanding issues required to be resolved.

PN145

Having obtained that confirmation, did that discussion carry on? Was anything further discussed about the agreement or your proposal or the LHMUs proposal? You knew now there were two outstanding issues?---Yes.

PN146

Did you discuss those issues on 31 January, do you recall?---We certainly talked about, yes, the 38-hour week was the issue that Ms Smith saw as one issue that needed fixing and that the level 4, level 5 operator issue was the second issue that we talked about and confirmed that, yes, that was the only other issue that needed fixing at that point in time.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN147

Was there any discussion about the proposals, about the particular proposals and how they might actually be implemented? What I am asking you, is it just a question of you had the discussion with Ms Smith in which you said are these the only two issues and she said yes, or did the discussion then go on and negotiate the particulars?---I understand your question now. CSBP based on the wording that we received on 19 January, CSBP took that away and looked at providing a proposal for the union to consider and that's when on 31 January, my initial part of the conversation was basically to say, well, look, are these the two outstanding issues and again because if they're not, there's no point continuing this conversation on any further because obviously we want to make sure that these are the only two things we're talking about. Ms Smith confirmed that they were the only two outstanding issues to resolve with the LHMU and on that basis, I then proposed - sorry, put forward an offer from CSBP on the 38-hour week and that basically - that offer was that with respect to the 38-hour week and providing all operators the opportunity to work a 38-hour week over the life of the agreement, we provided a position on that which would enable that claim to be met and we also provided further clarification on the fertiliser and prill plant core operator issue whereby we provided - we said to the union that, yes, we will provide an allowance for employees to undertake training and that allowance will be paid. We expect that training to be done in six months and on that basis, if employees undertake that training and pro-actively work towards completing that training, we will provide after the first three months a back payment. If employees have continued to pro-actively work towards obtaining level 5, after six months we will provide another three month back payment, so that was the offer that we put.

PN148

Following that, on 6 February you had a telephone conversation with Ms Smith?
---Yes, I did.

PN149

Do you recall what was discussed in that?---Again it was discussion on the - it was to clarify again the position of the level 4, level 5 issue. I think Ms Smith said that, well, granted you're going to pay the allowance in the form of a three month payment and a three month payment, our preference would be that it's paid monthly and again Ms Smith pointed out our offer on the 38-hour week, that it be provided over the life of the agreement which was proposed to be three years. Ms Smith said, well, look, we don't think your offer is going to achieve all operators being able to be put onto a 38-hour week over the life of three years, so we again put a revised position on the 38-hour week. If memory serves, it was putting forward percentages of particular employees.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN150

Particular employees who would - - -?---Who would be given the opportunity to move to a 38-hour week over the life of the agreement. For operators in the chemicals north business unit, it would be 65 per cent of operators over the life of the agreement and 100 per cent of operators in chemicals east and fertiliser area.

PN151

Between 5 January which was the first telephone discussion you had with Mr Martelli and Ms Smith after the Christmas break, between 5 January and 7 February, from 5 January up to and including 6 February, were there any other issues negotiated or raised by the union?---The answer is no. We were quite deliberate in asking questions on the 5th and certainly on the 31st to try and cover that exact point, that there were no other issues, no other claims outstanding.

PN152

On 7 February do you recall a conversation with Ms Smith, a brief conversation?
---I call a conversation. Ms Smith was at a family function at the time so couldn't talk for very long, but Ms Smith outlined to me that the position that we put on the core operator issue and the 38-hour week, she didn't think that that was going to resolve their issues any longer, to which I expressed obviously great disappointment and she said that she would be having a meeting with members the following day, would get back to us on what that position was.

PN153

So that takes us then to 8 February. Now, on 8 February what occurred first in your recollection?---We received a facsimile from the LHMU about 10 o'clock on the morning of the 8th. That facsimile stated that the LHMU now had four outstanding issues to be resolved.

PN154

Is that the document MR3 to your statement?---That's correct.

PN155

Are they the issues that are identified on the second page?---Yes. The four issues are the pay parity, the 38-hour week for all operators, all core operators to be level 5 and a recalculation of shift allowances.

PN156

Your Honour, what I propose to do once Mr Riordan has finished giving his evidence is to tender the statement with its annexures. Would that be more convenient?

PN157

THE DEPUTY PRESIDENT: Yes. I presumed that's the way you were going.

PN158

MR BLACKBURN: Thank you.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN159

All right, so you received the facsimile at about 10 am. Had you spoken to Ms Smith at all that morning?---I briefly spoke with her, I'm pretty sure it was that morning, where she indicated she would be meeting with members at midday and would come and meet with the company following that meeting.

PN160

So you had a brief phone call from her saying she was having a meeting with members, you had this facsimile at 10 am which now shows four items, four major obstacles to reaching an agreement and what happened then?---The LHMU held a meeting with their members at midday. At approximately 1 o'clock Ms Smith met with CSBP, Ms Smith and employee representatives met with CSBP to provide feedback on that meeting. She confirmed that - sorry, I will just elaborate. At that meeting on behalf of the union was Ms Smith, Mr Townend, Mr Richard Searle and Mr Shane Johnson who were two employee representatives. At that meeting, Ms Smith outlined that the CSBPs offer on the 38-hour week and the core operator issue were no longer going to resolve their claims. They now sought wage increases on what we had previously offered, being the five and a half, five and five. They sought again that the 38-hour
week - - -

PN161

What were they seeking now in terms of the wage increases?---It was six and a half per cent, six per cent and six per cent.

PN162

Yes?---The six and a half per cent year one, six per cent year two and six per cent year three, that again all operators be able to work a 38-hour week over the life of the agreement, that again all core operators be paid at level 5 and then came what we say are new claims that we hadn't had, certainly since late 2006. It was a claim for the recalculation of the shift allowances, that a boiler and turbine ticket allowance be paid and that a five panel shift roster be introduced. Now, I should clarify that Ms Smith did not outline those two last claims that I stated, being the five panel roster and the boiler turbine ticket allowance. That was Mr Shane Johnson who stated that that was a claim. At no time did anyone state that, no, that's incorrect, we're not claiming those, so from that, Mr Romano numerous times sought to clarify, look, are they your only outstanding claims now, are these your only outstanding claims, to which the answer was, yes, they are the claims that we are now seeking and, yes, they are the only outstanding claims. It was Ms Smith that indicated that.

PN163

I realise we haven't annexed it to the statement, but I recall from a previous proceeding that after that meeting, you sent an email to your colleagues at CSBP and I think Vice President Lawler refers to that email in his decision.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN164

MR NICHOLAS: Your Honour, I hope we're not going close to leading the witness in this matter.

PN165

MR BLACKBURN: It's question of was the email sent or not?

PN166

THE DEPUTY PRESIDENT: What is the question, Mr Blackburn?

PN167

MR BLACKBURN: Do you recall sending that email?---Yes, I do.

PN168

Do you recall broadly what it said?---The reason I recall sending it is because the meeting that was held with the LHMU on reporting back to us was relatively brief. It concluded - sorry, it wasn't relatively brief. What was notable that there were what we say were additional and new claims made. At the conclusion of that meeting at 2 pm, in my assessment it was obvious that the union were posturing to take steps towards furthering - sorry, take steps towards protected industrial action.

PN169

I have a copy of it here, if the witness can be shown this email. Is that the email?
---Yes, that's the email.

PN170

If I could tender that email.

PN171

THE DEPUTY PRESIDENT: What I might suggest, Mr Blackburn, is if that is marked MR3A and it's slotted in the bundle of documents in that way and then it can be tendered at the same time as the rest.

PN172

MR BLACKBURN: Yes. Thank you, your Honour.

PN173

Now, Mr Riordan, can you read that email, please?---Certainly. It's from myself, sent at 1.32 pm to various people in management at CSBP. It states:

PN174

Hello, I've just had Richard Searle, Shane Johnson, Geoff Townend and Carolyn Smith in my office along with Albert Romano. Carolyn's opening words were that the offer we put to them regarding the 38-hour week and the C operator offer doesn't resolve their issues. They are seeking a five panel roster on the 38-hours over three years. They are seeking six and a half per cent year one and six per cent for year two and three, as wage parity is still an issue. They want the allowances to be calculated as they have done in the past, eg. shift allowance to be 21 per cent of level 7. Shane Johnson said they want payment for boiler and turbine tickets as a fixed compensated chemicals operator for the fact that the fertiliser operators in his eyes are going up a level. I said that we've gone backwards and I cannot see how we can proceed forward and that the offers that the company has put forward have obviously had no effect and that we may as well be starting back at our original positions. Their parting words were that they would remain available to discuss any issues we have. It is blatantly obvious that they are simply wanting to position themselves to take industrial action and I suspect that we will have that paperwork through shortly.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN175

What time is that email?---That email was sent at 1.32 pm.

PN176

Sent by you at 1.32 pm?---That's correct.

PN177

So the meeting had ended at that time?---Yes. I think the meeting ended at about 1.25, because I wrote this straight after they walked out of the office.

PN178

So at paragraph 59 of your statement where it say the meeting ended about two, it actually ended about 1.30?---It would have been around 1.25 pm or 1.30 pm, yes.

PN179

So you sent that email at, sorry, what time?---1.32 pm.

PN180

When did you then receive the LHMUs application for the secret ballot order?
---It was approximately an hour later.

PN181

We know that proceedings then took place before Vice President Lawler on 12 and 13 February and you gave evidence in those proceedings?---Yes, I did.

PN182

What was the basis of CSBPs opposition just in broad terms to the making of the ballot order?---In terms of my evidence, we wanted to outline that we didn't think the LHMU were genuinely trying to reach with CSBP. Certainly the conduct on that day was and what we outlined was that prior to 8 February, we were simply negotiating on two issues, being the 38-hour week and the core operator issue and then on 8 February we had the recalculation of shift allowances, the boiler turbine ticket, the five panel roster and the six and a half per cent, six and six were the new claims, so essentially we wanted to point out that given that the union had come in, told us that at 1 o'clock, the meeting ended at 1.25 and then within an hour we had had a secret ballot application, that the union weren't being genuine in their negotiations and trying to reach agreement. They had given us four new positions and not an hour later were applying for a secret ballot application. We didn't think that was genuine.

PN183

You were out of the room when Ms Smith gave her evidence, is that right?
---Yes, that's correct.

PN184

What did you understand following that hearing to be the position of the LHMU given that on 8 February it had raised not only the additional wage increases and the recalculation of shift allowances, it had also raised the turbine tickets and the five panel roster? Following the Lawler proceedings, what did you understand to be the position in relation to the five panel roster and the turbine tickets?
---Ms Smith outlined that she didn't think that the union had made those as claims, being the five panel roster and the boiler turbine ticket allowance. She stated that in her opinion, the only claims were the wages claim, recalculation of shift allowances, the 38-hour week and the core operator issue.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN185

On 16 February you received a letter from the LHMU?---Yes, we did. It was again sent through via facsimile and that letter confirmed what Ms Smith alluded to in proceedings, in the Commission proceedings that they did not seek to re-invigorate I think was the wording they used claims not previously sought which were the turbine ticket allowance and the five panel roster.

PN186

What did it say were the outstanding claims?---It stated that the outstanding claims were six and a half per cent - sorry, wages being six and a half per cent, six and six for years two and three, the 38-hour week, operators being given opportunity to work a 38-hour week over the life of the agreement, recalculation of shift allowances and the core operator issue.

PN187

That is the letter at MR4 to your statement, the facsimile and the letter that immediately follows?---That's correct.

PN188

You're referring to that part of the letter which says:

PN189

In terms of the matters that have not been agreed, the LHMUs requirements for an agreement are as follows -

PN190

?---Yes.

PN191

Now, following this letter on 16 February, are you aware of whether the union or what next occurred after the letter on 16 February?---Well, on 19 February the union held a mass meeting - sorry, a meeting of its members and what I'm about to say I know was said because it came from evidence that Ms Smith gave before Commissioner Smith. I've read her transcript of evidence and Ms Smith at that meeting - sorry, her evidence before Commissioner Smith was that at that meeting they sought to clarify with members what their remaining claims were and get the position of their membership on what they would continue to negotiate on and the endorsement of membership on what their issues were.

PN192

While we're at that point, paragraph 71 of your witness statement, Mr Davies has just drawn my attention to that fact that you say there that the proceedings were before Commissioner Smith on 27 March?---Yes.

PN193

If I tell you that they were on 22 March, do you agree?---Yes.

PN194

So there was that mass meeting on 19 February and what then happened?
---The next meeting that we had was on 24 February and that was where Ms Smith again clarified that from the LHMUs perspective, there were four remaining claims and those remaining claims were wages and the percentages that I've previously outlined, the core operator issue, the 38-hour week and the recalculation of shift allowances.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN195

We know that on 26 February the LHMU applied for the ballot order and that went before Commissioner Smith and you've annexed the ballot order at MR5 to your statement?---That's correct.

PN196

That was on 2 March. Now, what happened on or about 12 March?---On 12 March I was contacted by Mr Steve McCartney at approximately 1 pm that day. Mr McCartney was seeking a meeting to try and resolve the outstanding issues with CSBP in terms of reaching agreement. That meeting took place later on - sorry, I'll take a step back. I met with Mr McCartney at approximately 2 o'clock. We discussed the benefits of holding further discussions with Mr Martelli to try and resolve the outstanding issues and at approximately 4.30 or 5 o'clock that afternoon, Mr McCartney, Mr Martelli and myself met at CSBP to talk through outstanding issues with respect to the proposed agreement. Mr McCartney outlined that he had spoken to both the CEPU earlier that day as well as the LHMU and he stated that he was on contact with Mr David Kelly of the LHMU and Mr Martelli and I stated that, well, if we're going to try and resolve any outstanding issues here today, we want to make sure that the discussions that we're having, that you're able to represent the interests of the other unions and that's when Mr McCartney again said, well, I've had discussions with the LHMU and the CEPU and I'm confident that any position that is put to us, I will be certainly communicating that or recommending that to the LHMU and the CEPU. We then proceeded to have discussions around the outstanding issues for the AMWU which was primarily around a position on standby. We also talked about wages and where we got to was a position where CSBP offered six and a half per cent - sorry, five and a half per cent from October 06, one per cent in April 2007, five per cent in October 2007, five per cent in October 2008 and four and a half per cent in October 2009 with the expiry of the agreement being 30 April 2010. Again we said, well, what we want sure is that this offer is going to satisfy all the other unions including the LHMU and the CEPU, their claims over wages and allowances and Mr McCartney said, yes, he was negotiating on the basis that we would work on that understanding.

PN197

Following that meeting, did you have a discussion with Ms Smith?---That was the next day, on 13 March. I was in contact with Ms Smith by telephone and Ms Smith said that she had spoken to Mr McCartney and understood that CSBPs offer was on the basis that it resolved the outstanding wages and allowances claims for the LHMU. She requested to meet with her members of the negotiating committee and that meeting was to take place on 16 March.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN198

What happened on 16 March?---Ms Smith had met with her members, sorry, the negotiating committee and when we met, Ms Smith wanted CSBP to outline exactly what its offer was, so we reiterated what we had stated to Mr McCartney on 12 March and for what it's worth, Mr McCartney held a meeting with his members the following morning and that was accepted by the AMWU and the CEPU.

PN199

Does that mean you had reached agreement with those two unions?---Yes.

PN200

No outstanding issues with those two unions?---No. That's right. Sorry, I will correct that. They stated we've reached agreement in principle, we don't have yet a written set of words that they've signed or anything like that, so an agreement hasn't been made per se, but for their outstanding issues at that time were met, so Ms Smith as I said asked to outline what CSBPs offer was. We reiterated that the offer made was on the basis that it would resolve their claims over wages and allowances, so we outlined the five and a half, one per cent, five per cent, five per cent, four and a half per cent and Ms Smith then indicated that - sorry, and the term of the agreement was 30 April 2010. Ms Smith then outlined, well, look, the money is okay and the term of the agreement is okay. However, that does not resolve our claim for allowances. Needless to say, we were very disappointed with that response because we had been negotiating with Mr McCartney on the basis that the offer put would resolve both the wages and allowances claim.

PN201

Just on the claim for allowances, what have been and what was - we've seen it described as a claim for recalculation of allowances or a different method of calculating, what was the claim for the allowances?---The claim for allowances, in terms of what CSBP was offering, sorry, the LHMU was stating that, look, the offer that you've put forward is not - the way that you've calculated the allowances is incorrect. We say that the shift allowance should be 21 per cent of level 7 and the number that we had provided worked out at about 19 per cent of level 7, so that's why they were saying we think you should - - -

PN202

So that was the issue?---The issue was, yes, the way it was calculated.

PN203

At this meeting on 16 March, Ms Smith said that the money is okay, it's the wage increases that have been offered?---Yes.

PN204

The period of the agreement was okay?---Yes.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN205

But there's still no agreement on allowances?---That's correct, yes, there was no agreement on allowances. As I said, we were disappointed with that. Ms Smith then went on to also state that there was now a claim for back payment of allowances between the lodgement of the agreement and October 2006 when the current agreement expired.

PN206

Had that claim been raised previously?---No, that claim had not been raised previously.

PN207

Where was the union at that point on the 38-hour week?---Again they were still seeking that - sorry, prior to that time, the union was seeking that all operators be given the opportunity to work a 38-hour week over the life of the agreement, as I've said.

PN208

So over the life of the agreement, all operators be given the opportunity to transition to a 38-hour week, is that right?---Yes, and in fact it's probably not be given the opportunity. It was a bit more forceful than that, all operators will work a 38-hour week by the end of the agreement, all operators will be put onto a 38-hour week by the end of the agreement.

PN209

So that had been the position?---To that point in time, that's correct. The position on the 38-hour week then changed as well.

PN210

On 16 March?---On the 16th Ms Smith outlined that the LHMU wanted the operators to be given the opportunity to vote on whether or not they wanted to go to a 38-hour week or otherwise by a business unit and if I might just elaborate on that. By business unit, I mean operators in chemicals north are a distinct business unit. Operators in chemicals east are a distinct business unit and operators in fertilisers are a distinct business unit and the claim for the union changed such that they wanted, rather than all operators be on a 38-hour week, they wanted operators in each business unit to be given the opportunity to vote by business unit on whether or not they wanted to accept a 42-hour week, a 40-hour week or a 38-hour week and whatever operators in each business unit voted for, that is what would be worked for the life of the agreement.

PN211

What was the LHMUs position in respect of the core operator issue at that point?
---To that point, they were seeking that core operators be paid at level 5. Does that answer your question?

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN212

What about the frequency of payment, was that discussed at all?---Well, we'd offered that payments be made three-monthly and the union were seeking that payments be made monthly.

PN213

What was your response? Did you respond to that?---Yes, at the time we said that we would accommodate that claim.

PN214

Paid monthly?---Yes, we would pay it monthly.

PN215

That was on 16 March?---Yes.

PN216

Do you recall when the next meeting with Ms Smith was?---It would have been 21 March.

PN217

What was said on 21 March?---Again we met with the LHMU on that date and the LHMU, granted they had just put to us on the 16th that they wanted operators to vote for a 38-hour week by business unit, they came back to us and said, well, look, we no longer want operators to vote by business unit, we want operators to be given the opportunity to vote on an individual basis as to whether or not they want to work a 42-hour week, a 40-hour week or a 38-hour week over the life of the agreement.

PN218

Following that discussion with Ms Smith - I should say, what was CSBPs response in relation to the claim that had been made, the claim about the back payment of allowances?---CSBP explained to the union that we would not be back paying allowances. Our position the whole way through negotiations had been that we will not be making any back payments and that included back payments on allowances.

PN219

THE DEPUTY PRESIDENT: Mr Blackburn, I might have a break for 10 or so minutes and I will adjourn on that basis.

<SHORT ADJOURNMENT [11.57AM]
<RESUMED [12.18PM]

PN220

THE DEPUTY PRESIDENT: Yes, Mr Blackburn.

PN221

MR BLACKBURN: Thank you, your Honour.

PN222

Mr Riordan, you had just given evidence about a meeting that you had with Ms Smith on 21 March in which you said that the union's claim around the 38-hour week had changed again and they were now seeking that all employees be given the opportunity to elect whether they wanted to work 38, 40 or 42 hours over the life of the agreement. Following that meeting on 21 March, what occurred after that?---Well, following the union's position on the 38-hour week being that employees could each elect on whether or not they wanted to work a 38-hour week over the life of the agreement, we indicated to the LHMU that that position was acceptable to CSBP and so from there, the LHMU requested to hold a meeting with its members the following day, the following morning. That meeting occurred and Ms Smith and two employee representatives met with me after that meeting to feed back what occurred at that meeting. Ms Smith indicated that the wages offer put by CSBP was acceptable, that the core operator issue being around the level 4, level 5 providing training and allowances, et cetera, was acceptable to their members, that the 38-hour week proposal was acceptable and that, however, the recalculation of shift allowances was still an issue for the LHMU and Ms Smith went on to state that the members had endorsed the negotiating committee to take any form of industrial action that was permitted under the ballot application. They were endorsed to initiate any one of those forms of industrial action at any time that they saw fit.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN223

All right, so at that point, that's on the morning of 22 March, Ms Smith has indicated to you that the CSBPs pay offer, the 38-hour week proposal, the core operator proposal were all acceptable?---That's correct.

PN224

The allowances issue, the calculation of the allowances issues is still outstanding?---Correct.

PN225

What about back pay, what's happened to that, of the allowances?---The back payment of allowances was still a claim that the union sought.

PN226

That was on the morning of 22 March?---That's correct.

PN227

What happened next?---We reconvened with the LHMU on the afternoon of the 22nd. CSBP again put to the union, look, we just want to make sure what the outstanding claims were and that was, yes, back payment of allowances and recalculation of shift allowances. On that basis, we agreed to offer to recalculate the shift allowance in line with the union's claim and Ms Smith stated - - -

PN228

When you say on that basis, what do you mean by that?---On the basis that there were not other outstanding claims, CSBP put the offer to satisfy their claim on the recalculation of shift allowances, but indicated we were not willing to concede the point on back payment of shift allowances. Ms Smith then indicated that obviously they accepted the CSBPs concession on the recalculation of the shift allowances, that's what they were seeking and stated words to the effect that, well, the only thing remaining, preventing an agreement being done with the LHMU is the back payment of allowances.

PN229

So there was no deal?---No. There was no deal because there was still one outstanding issue that prevented a deal from being done in Ms Smith's opinion.

PN230

The issues that had been identified back in February, they've all been resolved?
---Yes. Well, the issue of the 38-hour week was resolved, the core operator level 4, level 5 issue was resolved, the wages offered, five and a half, one per cent, five per cent, five per cent, four and a half per cent was resolved and the 38-hour week was resolved and they were, yes, the four issues that were identified in mid-February and certainly in the letter of 16 February.

PN231

I'm not sure if you mentioned the 38-hour week, the shift allowances were also - the calculation of the shift allowances?---Sorry, calculation of shift allowances was the fourth issues and that was resolved.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN232

That was 22 March, Ms Smith says the only reason we haven't got a deal now is the back pay of allowances. What happened then?---I spoke to Ms Smith on the 23rd and we talked about the fact that, yes, there was an outstanding issue on the back payment of allowances. I reiterated that CSBP was not going to concede that claim. Ms Smith then said she would take that position of CSBPs offer to its members on 26 March and I again stated, look, so the only thing between us and the deal with the LHMU is the back payment of allowances and Ms Smith said, yes, that was the case.

PN233

What then happened after that discussion with Ms Smith?---The LHMU met with their members on 26 March and that was in the morning. The format of that meeting was that they met with the shift coming on to shift first and they obviously said what they had to say to that group of employees and then as well as any day workers coming on. They then met with the shift coming off night shift following the day workers going to work, obviously.

PN234

How do you know that?---Because that's the only way that the LHMU could meet with its members and that had also been indicated following the feedback from that meeting. We then received a request from Ms Smith to meet to provide feedback on the outcome of the meeting. Mr Romano and myself met with Ms Smith, Mr Townend of the LHMU and several employee representatives. The feedback from Ms Smith from the outcome of the meeting was that with respect to CSBPs offer, the offer had been accepted by a majority of members. However, the majority was not a large majority. There were now two claims that the union were going to pursue and that was that employees on level 7 in the classification structure be reclassified at level 8 and that shift cover, being cover for employees who are absent, that shift cover receive an additional payment and Ms Smith also indicated that back payment of allowances would no longer be pursued. These were the two issues that the LHMU were now claiming.

PN235

Have these two issues been raised with you at any time since the end of October 2006?---These issues haven't been raised since July. I mean, they might have been - I think in subsequent discussions the union have stated that, look, they were on our original log of claims, but they've not been pursued since receiving that log of claims.

PN236

July 2006?---Correct, even prior to July 2006 we received a lot of claims.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN237

What happened then after that meeting on the 26th where Ms Smith has said your offer has been accepted by a majority of members, it's not a large enough majority and we've now got these provisional claims, what happened after that?---We had a further meeting - sorry, we provided a document to the LHMU and a proposed draft agreement which in our opinion had the issues that had been agreed to date encompassed in it. We then met with the LHMU, the CEPU and the AMWU on 30 March. Mr Townend indicated that there had not been sufficient time to review what was proposed by us in the workplace agreement and that they wanted to provide a response to us the following week. We outlined that, look, we're happy to - we would like to go through the document and certainly talk about any issues that they had in that document. Mr Townend reiterated that they were not interested in canvassing any of the contents of the agreement and that they simply wanted a response on the two outstanding issues that the LHMU had put forward, being the shift cover issue and the level 7, level 8 issue. We stated that we were not in a position to agree to those issues and wanted to concentrate on reviewing the contents of the document to clarify exactly what the outstanding claims were from the unions.

PN238

Was anything said at that meeting via Mr Townend or anyone else - sorry, firstly, was Ms Smith at that meeting?---No, Ms Smith wasn't at that meeting. Mr Townend did outline and it was reiterated later, but Mr Townend did outline that, look, these are the only two issues that the LHMU are now claiming to be resolved, said words to the effect that I can assure you no other issues will be pursued by the LHMU and that comment was agreed with by one of the employer representatives, Mr Ashley Monahan, who also said, yes, we will not be pursuing any other claims.

PN239

Now, what occurred shortly after that meeting on 30 March?---We received a fax from the LHMU outlining that they were looking to take industrial action in the form of a seven day stoppage of process technicians at CSBP commencing on 6 February, being Easter Friday.

PN240

That's MR6 of your statement?---Yes, that's correct.

PN241

Then we know that following that, CSBP applied to the Federal Court for orders requiring the union to withdraw that notice. While the Federal Court proceedings were on foot, what happened?---The Federal Court proceedings were on the Tuesday prior to Easter Friday, 3 April. Late that afternoon, we didn't find this out until obviously after the court proceedings, but I think it was about approximately 4.30 that afternoon, the LHMU faxed through to our Kwinana office notification that dispatch employees would be taking industrial action on the following Wednesday in the form of a 48-hour stoppage.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN242

And that's MR7 to your statement?---That's correct.

PN243

Following that, on 4 April, Gilmore J of the Federal Court issued orders and those orders are attached at MR13 to your statement?---That's correct.

PN244

If we just correct paragraph 111 of your statement which refers to it as MR14, it's actually attached as MR13?---Yes.

PN245

By those orders, the union was required firstly to withdraw the two notices of industrial action you've referred to and then by order 3, not to give any further notices of industrial action in respect to the bargaining period that was then on foot and then in order 4 not to issue any further notice of bargaining period which names any other union but the negotiating party which seeks to negotiate a workplace agreement which includes any other union parties?---That's correct.

PN246

You've also annexed to your statement at MR8 a further notice of bargaining period, of the initiation of a bargaining period. It's dated 11 April, but the fax print at the top says 12 April. When did you receive this notice?---I'm fairly confident it's 12 April we received it.

PN247

So paragraph 112 should say on 12 April, paragraph 112 to your statement, is that right?---That's correct.

PN248

So you received this notice notifying you that the union wished to initiate a new bargaining period and it was attached and this bargaining notice identifies the other negotiating party as the employer. It doesn't mention the other two unions and identifies the types of employees whose employment will be subject to the proposed collective agreement and any other persons, employees of CSBP who are members or eligible to be members of the LHMU and the LHMU?---Yes.

PN249

This notice is different from the previous notice and you're familiar with the differences?---Yes, that's correct. The primary difference between the two notices is that in line with the Federal Court orders, the other two unions, being the CEPU and the AMWU, are not named as parties to the notice.

PN250

And the particulars attached to the notice don't refer to them either?---That's correct.

PN251

So we've got a notice now that is different from the notice filed previously. Did that result in any change to the format in negotiations or the type of agreement that was being pursued?---No. The unions are still seeking to be bound by the one agreement. Negotiations have continued on that basis.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN252

So did anything change, apart from the serving of the notice?---No.

PN253

The document that was being looked at and considered, that remained the same document?---Yes, it did. In fact, we were provided, I think it's later in April, we were provided with a document from the LHMU which actually outlines that the parties to the agreement were and continue to be the AMWU and the CEPU.

PN254

Has the LHMU since the filing of the new notice said to you other than by providing the notice, has it said to you that it now wants an agreement all by itself?---No. In fact, we had a meeting on 23 April which actually involved the other two unions, being the AMWU and the CEPU and the AMWU and the CEPU were - I was informed by Mr Townend that they would be attending that meeting to discuss the contents of the agreement that the LHMU had provided.

PN255

Go back a moment to 12 April, then, and you've been served with this new notice initiating a bargaining period. Was there a meeting with the LHMU on 12 April?
---Yes. We again met with Ms Smith and Mr Townend was at that meeting as well. They stated that they were unable to provide a response to us on the agreement that we had provided back in late March and that they still wanted to talk around their outstanding claims. They stated that their outstanding claims continued to be the level 7, level 8 operator issue, the payment of shift cover, extra payment for shift cover and then explained that by that they actually were seeking instead of a monetary amount, they were seeking that time off in lieu be provided, so where an employee came in to provide shift cover for a 12-hour shift, they were seeking that the employee receive 24 hours off in compensation for that, so effectively double time off in compensation for that. They then went on to outline a new claim.

PN256

A new claim?---Yes, which was that prill plant operators be classified at level 5. Now, this claim was previously - sorry, prill plant operators formed part of discussions on a previous point which was that level 4, level 5 operators in fertiliser and the prill plant be provided with training and receive an allowance and that was the context of discussions on that point.

PN257

And that point had been accepted?---That point had been accepted back in mid to late March, so needless to say, it was somewhat surprising that this claim had become an issue again when we were told that that claim had been accepted and what they were now seeking was that, yes, prill plant operators be classified at level 5 without having to undergo any training as previously discussed, not receiving any allowances, simply be classified at level 5 and not need to do anything for that.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN258

Subsequent to that meeting on 12 April you received a marked up draft of the agreement that you had provided to the LHMU?---That's correct.

PN259

If I can hand up extracts from that document. It's marked without prejudice, but I note my friend's comments earlier in the day that he proposed to admit them, so I assume - does this appear to be extracts of the document you received on 15 May?
---I note the date, 15 May. We received - the version that the LHMU first provided to us I think on 23 April was when we first got a draft stating here is a document, but this is obviously provided to us on 15 May. I must concede I haven't had the opportunity to go through this particular version of the draft.

PN260

I might just give you the whole document. That may assist you in identifying the extract. Do you recognise that document?---Yes, I do.

PN261

If I can take you to clause 4.

PN262

MR NICHOLAS: Sorry, your Honour, I am unsure what document the witness has in his hands at this point.

PN263

THE DEPUTY PRESIDENT: What is it, Mr Blackburn?

PN264

MR BLACKBURN: Sorry, your Honour?

PN265

THE DEPUTY PRESIDENT: What is it?

PN266

MR BLACKBURN: It's the full draft, it's the full agreement. Mr Riordan seemed a little uncertain as to whether the extracts were from the draft provided on 15 May.

PN267

THE DEPUTY PRESIDENT: Have you got a spare copy of that?

PN268

MR BLACKBURN: Yes.

PN269

THE DEPUTY PRESIDENT: Can you provide it to Mr Nicholas?

PN270

MR NICHOLAS: I have one, your Honour. It's marked 15 May.

PN271

MR BLACKBURN: Yes, I will hand that up. We will go then with the full agreement rather than the extract. Perhaps we could just ignore the extract. If I can take you to clause 4, parties bound and scope?---Yes.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN272

And it's said there that - can you tell me who that scope clause is intended to cover?---The respondent unions signatory to the agreement which is the LHMU, the AMWU and the CEPU.

PN273

So they're at the back? There's space for signatures on page 55?---That's correct.

PN274

In terms of the employees who will be covered, they're all employees in the classification structure?---That's correct.

PN275

Does that include trades employees as well as the LHMUs process employees and dispatch workers?---That's correct. It's on page 20, table 12.1.

PN276

If I could have that marked?

EXHIBIT #B1 DRAFT AGREEMENT DATED 15/05/2007

PN277

MR BLACKBURN: Thank you, Mr Riordan. You had got to the point where on 12 April you had attended a further meeting with Ms Smith and Mr Townend and they reiterated that the issues in dispute were still shift cover, level 7 chemical operators and they added a claim for prill plant operators to go to level 5 without completing any training?---Yes.

PN278

That was all on 12 April and following that, a letter went to the LHMU from Blake Dawson Waldron and that's attached at MR9?---That's correct.

PN279

Is that the letter that you caused to be sent?---Yes.

PN280

And the purpose of the letter is described as being to set out the basis on which CSBP asserts the LHMU has not been and is not genuinely trying to reach agreement. Your Honour, if I can hand up a copy of page 11, the annexure to Mr Riordan's statement and this is page 11. Perhaps that could be marked as 9A.

PN281

THE DEPUTY PRESIDENT: Yes.

PN282

MR BLACKBURN: Now, Mr Riordan, in this letter, Blake Dawson Waldron on behalf of CSBP seeks to explain why it is that CSBP believes that the LHMU is not genuinely bargaining, but Blake Dawson Waldron also requests on behalf of CSBP and this appears on the final page of the letter, page 15 of the letter, that the LHMU immediately withdraw the three additional claims that have been made on 26 March and 12 April for shift cover, level 7 operators to be reclassified at level 8 and level 4 prill plant operators to be classified at level 5 without training and to make an agreement with CSBP on the terms offered prior to 26 March which have been approved by a majority of members, LHMU members on 26 March and to allow that agreement to be put to a vote of employees. Is that the position that you authorised?---Yes, it is.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN283

Do we take it from that, then, that CSBP at that point was saying to the LHMU withdraw these additional claims, come back to the position that was endorsed by your members on 26 March and let that go to a vote, make an agreement on those terms and let that go to a vote?---That's correct.

PN284

Following that letter, you received a reply which is MR10?---That's correct.

PN285

Which says basically we've got a meeting scheduled with you on 23 April and we're happy to discuss the issues raised in your letter of that meeting?---Yes.

PN286

So what then happened at the meeting on 23 April?---Ms Smith outlined to us her position in response to the letter of 19 April, basically said that the LHMU had never verbally or in writing agreed to give up any of the claims sought in the log of claims and that if negotiations took much longer, that the position on the level 4, level 5 fertiliser, prill plant operator issue previously agreed would unravel or may unravel.

PN287

Did she say anything about the meetings or members that had endorsed the CSBP offer?---Yes. She outlined that there was approximately - Ms Smith said that there was approximately 70 members present at that meeting and that - - -

PN288

Did she say it was one or two meetings?---Did outline that there was two meetings and that the majority across the two meetings was not a large majority, it was not an overwhelming majority. She said that if there had been an overwhelming majority, that the LHMU would have endorsed the offer put by CSBP and allowed that to go to a vote. However, because the vote was not an overwhelming majority, the LHMU wouldn't endorse it to go through to a vote.

PN289

The figure of 70 employees, was that combined across the two meetings or was that one meeting?---I understood it was combined across the two meetings.

PN290

So 70 employees or members who attended these meetings, there was a majority across both meetings?---Yes.

PN291

Ms Smith also said that these additional claims weren't new, they had always been in the log of claims, is that correct?---That's right.

PN292

What is your response to that?---We would say that that wasn't the case at all. We had not had a claim for shift cover prior to that time, nothing to discuss on that claim, it had not been raised. The prill plant operator issue that was now being sought was previously agreed back in mid to late March. The payment for shift cover again had not been raised and at any time since the middle of 2006, so, yes, we certainly disagreed that it was the case that those issues were not new issues and we reminded Ms Smith that certainly the letter of 16 February outlined that these are our four outstanding issues and that we had met them.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN293

On 24 April there was a further meeting. Do you recall that meeting on the 24th?
---Yes, I do.

PN294

Was Ms Smith at that meeting?---Yes. Sorry, no. That was a meeting at the LHMUs office in Perth.

PN295

Who was there for the LHMU?---It was Mr Townend and Mr Nicholas.

PN296

Mr Jack Nicholas?---Yes, along with myself and Mr David Stewart from CSBP.

PN297

During that meeting, was there any discussion about the so called trades on shift issue?---The purpose of the meeting was to go through the agreements that the LHMU had provided to clarify various parts of wording. When we came through to the section that dealt with the trades on shift issue, that's really an issue where employees who are operating the plant, if they hold a trade qualification, receive automatically an extra level, they are reclassified at a higher level and in some circumstances can be reclassified at two levels higher. As part of the negotiations, CSBP was seeking that those operators be classified for their plant operating skills only and in terms of remunerating employees for having a trade skill, that would be done as an allowance. That effectively is the trades on shift issue. The LHMU, Mr Geoff Townend outlined that that issue was not something that the LHMU in their opinion has agreed.

PN298

Just on that, when you say the proposition was that it be dealt with as an allowance, was that to be - would that result in employees losing income or how was the allowance to be applied?---Employees that were classified at one - employees who had one trade, ie. a mechanical fitter trade or solely an electrical trade would have come down a level, but received an allowance increase of effectively one level. Those employees who hold a dual trade which is electrical and instrument fitting, for instance, and this is something I needed to clarify, I think the union were of the understanding that they may have not been remunerated or, sorry, has lost remuneration and that's not something I've yet been in a position to clarify further.

PN299

So was the allowance an all purpose allowance or not?---That had not been clarified at that point in time.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN300

But you had understood that the issue had been dealt with? What was your understanding of the trades on shift issue prior to the meeting on 24 April?
---It was certainly an issue that had been discussed during the course of negotiations, particularly through late 2006 and I can't recall the date, but it was a position that we were of the opinion it was agreed to. Certainly the fact that we had not had any further discussions on it through the course of February, the letter provided on the 16th, Ms Smith on various occasions saying these are our only outstanding issues led us to believe the tradesman shift issue which had been canvassed was no longer an issue and on that basis had been agreed.

PN301

But on 24 March, Mr Townend was saying what?---That it hadn't been agreed and was still an outstanding issue along with the prill plant operators, shift cover and the level 7, level 8.

PN302

So on 30 April, you've annexed to your statement MR11, it's a letter from yourself to Mr Nicholas and what was the purpose of this letter?---Yes, that is the letter that I provided and the purpose of the letter was to clarify why we believed that the trades on shift issue had been previously agreed and should not be an outstanding matter or an outstanding claim that the LHMU wanted to have resolved.

PN303

Now, following that meeting on 24 April there was a further meeting on 1 May. Do you recall that meeting?---Yes, I do.

PN304

Who arranged that meeting?---At the conclusion of the meeting on 24 April, it was determined that it would be useful to again hold a further meeting to discuss the agreement that the LHMU had put forward. Mr Townend indicated to me on the 30th that people attending that meeting would be inclusive of Mr Will Tracy, Mr Greg Wilton, Will Tracy being from the AMWU and Greg Wilton being from the CEPU, along with delegates or, sorry, employee representatives from those respective unions as well.

PN305

So there was that meeting on 1 May had the representatives of the other unions and it was to discuss the wording of the draft agreement?---That's correct.

PN306

You've attached to your statement a further letter that was sent by Blake Dawson Waldron as MR12 to the LHMU on 15 May. Are you familiar with that letter? Did you cause that to be sent?---Yes, I did.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN307

Again, it reiterated CSBPs view that the union was not genuinely negotiating and on the final page, page 3, again requested that they withdraw the additional claims and make an agreement on 26 March terms?---That's correct.

PN308

You've attached to your statement MR13, a reply - sorry, it's MR14, so in paragraph 137 it should read MR14, a reply from Mr Nicholas in which he says:

PN309

It's never been our stated position that any particular matter would not change.

PN310

?---That's correct.

PN311

How do you respond to that? The union is saying, well, look, in effect we reserve this right to change our position at any time and on anything. How do you respond to that?---I would say that it would make it near on impossible to try and reach agreement if the union just reserves its right to say, well, thanks very much for resolving those claims, but here's some more because we reserve our right to change our position on anything and it makes it very difficult to believe or take on board correspondence like these are our only outstanding issues, these are our remaining claims if that indeed is the fall back position of the unions to say, well, despite us saying that, we can change our position on anything at any time.

PN312

Finally on 15 March you also received an email from Mr Nicholas attaching a draft agreement?---Yes, that's correct.

PN313

Again had all three unions as parties?---That's correct.

PN314

In that email Mr Nicholas did indicate, didn't he, that the LHMU had reverted to the previously agreed position on trades on shift, that it would be dealt with as an allowance?---That's correct. I must add that whilst that was the case, the LHMU still wanted clarification on whether or not the allowance - it would be an all purpose allowance.

PN315

But Mr Nicholas maintained in that email that the position in relation to level 7 chemical operators, shift cover and prill plant operators remain the same?
---That's correct.

PN316

Mr Riordan, subject to the amendment and corrections that we've identified as we've gone through your evidence, the amendments to your statement, is your witness statement true and correct to the best of your knowledge?---Yes.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN317

If I could tender Mr Riordan's statement and annexures.

EXHIBIT #B2 WITNESS STATEMENT OF MATTHEW JOHN RIORDAN WITH ANNEXURES

PN318

MR BLACKBURN: Thank you, your Honour. Your Honour, there is one other document, perhaps if I can hand it up now just so I don't forget it. If I could tender the current enterprise agreement.

PN319

THE DEPUTY PRESIDENT: Yes. I don't need to mark that, Mr Blackburn.

PN320

MR BLACKBURN: Thank you, your Honour. Your Honour, I have no more questions for Mr Riordan.

PN321

THE DEPUTY PRESIDENT: Mr Nicholas, this might be a convenient time to take a luncheon break and we will reconvene at 2.15.

PN322

MR NICHOLAS: Certainly. Thank you, your Honour.

PN323

THE DEPUTY PRESIDENT: We will adjourn.

<LUNCHEON ADJOURNMENT [1.03PM]
<RESUMED [2.20PM]

PN324

THE DEPUTY PRESIDENT: Yes, Mr Nicholas. Sorry, Mr Blackburn.

PN325

MR BLACKBURN: There was one matter which may not arise, but it's in the event that your Honour does find that a ballot order can issue, then one issue which arises is the period of notice that's required to be given for the taking of any industrial action and in the union's application, they have indicated that and in the draft order they've indicated that a four-day period would be satisfactory and that there are circumstances to warrant a four-day rather than three-day period. There's no evidence about that at the moment. It's an agreed position between the parties. The question is whether your Honour would require evidence on that.

PN326

THE DEPUTY PRESIDENT: What would be my intention, Mr Blackburn, is to take this one step at a time and should I find that there has been genuinely - the union has genuinely tried and is genuinely trying to reach agreement, then I would address the issue of a secret ballot and then I would be inclined to provide an opportunity for submissions in respect to the issuance of an order.

**** MATTHEW JOHN RIORDAN XN MR BLACKBURN
PN327

MR BLACKBURN: Thank you, your Honour.

PN328

THE DEPUTY PRESIDENT: Thank you. Mr Nicholas. Sorry, and, of course, if the other element that you raised this morning of your issue with respect to multi-union agreements, if I did not find in your favour in that as well.

PN329

MR BLACKBURN: Yes.

<CROSS-EXAMINATION BY MR NICHOLAS [2.21PM]

PN330

THE DEPUTY PRESIDENT: Mr Nicholas.

PN331

MR NICHOLAS: Thank you, your Honour.

PN332

Mr Riordan, in your witness statement you attached to it, I believe it's attached as MR3, a letter dated 8 February 2007, if I could just take you to that?---Yes.

PN333

You gave evidence in relation to that as to what you said the union's position was and what were the main areas of negotiation that needed to be sorted out?---Yes.

PN334

That was pay parity, the 38-hour week for all operators, core operators to be level 5 and recalculation of shift allowances, but on the first page at the bottom of that letter, could you read out the last paragraph there?---Sure:

PN335

I note that given negotiations to date, the following issues are the major obstacles to reaching agreement, although as always final agreement will depend on the whole package being acceptable.

PN336

So what did you understand by that paragraph?---That as always final agreement will depend on the whole package being acceptable, provided we addressed the major obstacles, that would address the major obstacles and that the union would provide an ability for the members to vote on our offer.

PN337

Where do you take the ability to take a vote on that offer from that?---Because the major obstacles are outlined as those requiring agreement.

PN338

I put it to you that what is clear in this letter is that there's a clear indication from the union that it's negotiating on the basis that nothing is finally agreed until there is final agreement?---I didn't think it was that clear.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN339

I put it to you that it is that clear, if you read that paragraph?---I didn't take that away from reading that paragraph.

PN340

But you would agree that on reading it now, that that's definitely the meaning that you should have taken away?---No.

PN341

Perhaps we can go to the letter that you attach to your statement as MR4. It's the letter dated 16 February?---Yes.

PN342

On the second page of that letter, can you read out the top paragraph, the first paragraph on the second page?---

PN343

As always, final agreement will depend on the whole package being acceptable to our members and our position on any matter may change in the future if satisfactory resolution of the whole package in not achieved.

PN344

So did you understand from that that the LHMU was negotiating on the basis that it would explore options, but there was no final agreement on any particular matter until there was final agreement on the whole agreement?---Sorry, can you ask your question again, please?

PN345

Did you take away from that letter that there was a clear indication from the LHMU that it was negotiating on the basis of nothing was finally agreed until everything was agreed?---That is what that statement suggests.

PN346

All through negotiations, that has been the approach that has been taken by the LHMU, hasn't it?---No.

PN347

In what way has that not been the approach taken by the union?---On numerous occasions and certainly 5 January - sorry, if we can go back to 25 October when Ms Smith outlined what it would take to fix the LHMUs claims, from that it was a case of if we fix those, we can consider taking it to the members for a vote.

PN348

So that's right, so there was a clear indication from Ms Smith that what she was doing was providing an option that she could then take back to members and put to members, so it was a conditional option. There wasn't an actual agreement, a binding agreement on any of those particular matters because it was conditional?
---Sorry, what I was going to go on to say was if we then go to 5 January again, Mr Martelli and I were at pains to - - -

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN349

Can you just go back and address that point. You just gave evidence about the position put by Ms Smith. That was the case, wasn't it, that it was a conditional position?---I understood that it needed to go to membership, to the membership for a vote.

PN350

That was your evidence before Vice President Lawler, wasn't it?---That's correct.

PN351

In late October last year, you might recall negotiations over the union's claim for the 38-hour week?---Yes.

PN352

And it's true at that point CSBP actually asked the LHMU to go and consult with its members to see who exactly wanted to move to a 38-hour week?---Yes.

PN353

So, I mean, you would agree that it is reasonable for the union to consult back with its membership over proposals for a compromise settlement of matters?
---At that point in time, yes.

PN354

As a general principle, it's reasonable for unions to consult with its membership about agreements it's making on their behalf?---Absolutely.

PN355

Thank you, and you would agree that in negotiations it is reasonable for either negotiating party to change its position on particular matters if circumstances arose that necessitated a change?---To me it would depend on what the circumstances are.

PN356

Absolutely. CSBP would be able to change its position on particular matters, depending on the circumstances?---Yes.

PN357

And it has done so. It's changed its position on particular matters in relation to this agreement, hasn't it?---Yes.

PN358

So, for example, for a long time negotiations with the LHMU were on the basis of a three-year agreement, is that right?---Yes.

PN359

Then in late January this year, CSBP put forward a proposal for a five-year agreement in the context of another part of the agreement?---That was in the context of trying to satisfy the union's claim for operators to move to a 38-hour week over the life of the agreement. We said that we could certainly do that, get all operators on a 38-hour week within five years.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN360

In relation to the recognition of the trades certificates for employees, it's true that at one stage in negotiations that CSBP put forward the position that the move to the allowance would be on the basis that there was no reduction in salary, or no overall reduction for those employees?---Sorry, are you suggesting that was CSBPs offer?

PN361

Yes, that was CSBPs offer?---To the best of my recollection, yes.

PN362

When you came to provide a draft agreement in late March, what was actually contained in the draft agreement didn't actually reflect that, did it?---To the best of my knowledge, it did and what I stated was I would need to clarify if any employees were going to receive a reduction in rates and, yes, I said I would need to clarify that.

PN363

So you agree that there is a definite issue about when moving across to the allowance on the proposition that CSBP provided in its draft on 28 March that there was an issue about those employees losing entitlements to annual leave?
---No. There was no issue there. What I said was I wasn't aware that any employees would lose an entitlement on annual leave.

PN364

But you're aware now that the LHMU has put back the position that actually the way that CSBP have drafted it actually does have an effect on their annual leave entitlements?---What I did clarify was that no employees lose allowances. The way that it's drafted is not any different to how we've been consistent with the current agreement and that is no employees lose payment of allowances when annual leave is taken. I did clarify that.

PN365

If I can show the witness a copy of that draft agreement of the 28th. Is that a copy of the agreement that you provided?---Yes.

PN366

If I can provide a copy of that to your Honour. If I can take you to the leave clause, I believe it's clause 16. I actually have a different draft here, but I believe I can walk you through it and subclause 7 of clause 16 provides that:

PN367

During leave, an employee will be paid the salary and shift allowance that would have been paid to the employee had the employee not been on leave and had worked the shift roster.

PN368

Now, an allowance for recognition of a trades assistant is not shift allowance, is it?---But as I clarified, we do pay employees the emergency response allowance, we do pay employees the first aid allowance and they're not contained in that wording. That is a practice that we've done to date.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN369

So you're saying that the draft agreement doesn't actually reflect the true practice of what occurs?---The current agreement doesn't reflect the true practice and we haven't changed the wording between this draft and the current agreement.

PN370

So in terms of what is changing which is potentially the trade allowance, then there's an inaccuracy in terms of what actually occurs?---Between what occurs and what is actually in the wording there, yes, we pay all the allowances that employees get on annual leave.

PN371

In terms of the agreement, you put forward several times in correspondence through the CSBP lawyers that the LHMU should move to make an agreement on the terms that were offered at a particular point in time, being late March?---Yes.

PN372

It's true that at that time there was no actual set of written words that could have been agreed to at that time?---No, that's not true.

PN373

So there was definite agreement about what the wording would be in terms of that offer?---No, there was a set of words, though.

PN374

So what would have needed to happen to actually sign an agreement?---I'm not sure that's something for the union - whether or not they want to sign it, I'm not sure what the union would - - -

PN375

Okay, so just to break it down to have a certain set of words that both parties can say, yes, this is the bargain that we agree to, what would have needed to happen from late March for that to occur?---You would need a document that you could sign.

PN376

And you would agree that the LHMU since late March has been committed to a process of producing a document that you'd be able to sign, exactly that kind of process?---Yes, the LHMU has been working on a document.

PN377

So the LHMU has responded to the first draft that you provided in late March?
---Yes.

PN378

And it's provided summaries of the points that it said it disagreed with and the points in the agreement that it said needed clarification?---Yes.

PN379

And it met with you face to face to talk through those differences?---Yes.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN380

Actually, what has occurred between then and now is definite refining of what that agreement would be?---It's difficult to say when your letters and statements are that nothing is agreed until the whole thing is agreed, so I can't say that's the case because you reserved your right to fall back on that commitment.

PN381

But in terms of something that would be able to be agreed to if there was agreement on all matters at this point because of the commitment of the union to that process, the parties are actually a lot closer to being able to sign a written agreement?---I'll take your word for it, because again the union keeps relying on nothing is agreed until it's all agreed.

PN382

Certainly, but in terms of what is agreed and the wording to be used, there is a definite set of words that's a lot closer to where we were a couple of months ago?
---Well, what you're asking me to do is contemplate what's agreed and again the union keeps relying on nothing is agreed until it's all agreed.

PN383

Can I show the witness a copy, please, of a document? Perhaps you can tell me if you've seen that document?---Yes, I have.

PN384

At the top of the first page, the top right-hand box, well, can you go to the top row of the table on that page, if you read from the left-hand side, what does the top row deal with?---The clause, the change and the LHMUs response.

PN385

Then under that, what is the first substantive clause that it deals with?
---Clause 4(i)(a), new clause. Do you want me to keep reading?

PN386

Yes?---

PN387

CSBP to confirm they want multiple union agreement further to Federal Court submissions.

PN388

Okay, so in your evidence before, when you said that the position of the LHMU in terms of a multi-party agreement hadn't changed, that's plainly incorrect, isn't it?
---Well - - -

PN389

Isn't there a clear direction there that the LHMU is seeking CSBP to confirm whether or not it wants to have a multi-union agreement?---That is what that text says.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN390

And has CSBP indicated in any way it's changed its position in relation to a multi-party agreement?---I have had discussions with Mr Will Tracy and Mr Greg Wilton to find out whether or not they would be interested in pursuing a single union agreement with CSBP.

PN391

Have you put that proposition to the LHMU?---That was discussed with - well, Ms Smith made it plain in discussions on 31 January, I believe it was, that - - -

PN392

I am talking about since this document has been given?---Sorry, what was the document date?

PN393

When do you say you had that document?---Obviously it's post 28 March, but in answer to your question, since this document has been received, since 28 March I can't recall having a conversation on a single union agreement with the LHMU.

PN394

So, in fact, what CSBP has done is continue to negotiate with the union on the basis that it wants a multi-party agreement?---We're not opposed to a multi-party agreement, no.

PN395

It hasn't sought the views of the LHMU on that particular point?---It's exactly what we went to the Federal Court about.

PN396

Since you've received that document - - -

PN397

MR BLACKBURN: Your Honour, might I ask if we could clarify what is the date of this document?

PN398

MR NICHOLAS: Well, your Honour, I'm not sure that the date of the document is relevant. It's not a dated document, but I put it to the witness that he had that document on or about 12 April this year?---Yes.

PN399

If I could just talk about the position or the stated approach to negotiations from the LHMU. Do you have any knowledge or any evidence that there is a secret plan to hold back a list of claims until there is concession, getting a concession out of CSBP? Is there any concrete evidence that that is the intention or a plan of the LHMU?---No.

PN400

You would agree that the fact that a union has made an application for a secret ballot doesn't mean that negotiations necessarily have to come to an end at that point?---I agree.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN401

There's still time before protected action is authorised and even before it may be notified to still agree on matters?---Yes.

PN402

In terms of the protected action ballot that was heard by Commissioner Smith in early March, it's true that CSBP didn't make any claims or objections to the application on the basis that the LHMU wasn't genuinely trying to reach agreement then, did it?---I actually thought was the entire - a large majority of our argument was that we revisited the evidence that was before Commissioner Lawler which is entirely on how the LHMU was not genuinely trying to reach agreement.

PN403

But that's not the case, is it? If you look at the record of what happened in that hearing, no objection was made to the genuineness of the position of the LHMU?
---Sorry, my recollection is that we used evidence that was consistent with the proceedings before Commissioner Lawler.

PN404

In terms of the position in March as to the wages offer and your evidence about discussions you had with Mr McCartney, you seem to indicate that you hoped that Mr McCartney spoke on behalf of the LHMU in relation to what would be an acceptable wages position?---We didn't hope. Mr McCartney indicated that he had spoken to the LHMU and the CEPU earlier that day and he was there to resolve the outstanding matters.

PN405

But the LHMU had never given you any indication that he had authority to do so?---No.

PN406

You gave evidence that matters raised by the LHMU on 26 March, the issue as to shift cover and the issue as to the classification of chemical operators hadn't been raised since the middle of 2006?---Yes.

PN407

But, in fact, if you look at the letter that is MR2, I believe, in your witness statement - sorry, MR3 and if you look at the last page of that letter which is headed LHMU log of claims, what is the first item on the top, the numbered item on the top of that list?---That shift cover be paid at double time.

PN408

So in fact that was raised in terms of what the claims were in February of this year?---So was the paid convenor, but we didn't take that seriously.

PN409

So you didn't take the position of the LHMU seriously?

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN410

MR BLACKBURN: I object to this particular question because my friend would know the evidence that his own witness gave in Vice President Lawler's proceedings about this particular schedule and that those matters were not intended to be re-invigorated and my friend knows full well that's the evidence that Ms Smith gave.

PN411

MR NICHOLAS: I am just trying to make the point, your Honour, that the whole log of claims here was indicated to CSBP and that was in the context of the rider on the first page of that letter that, as always, final agreement will depend on the whole package being accepted. If I can take you back to the draft that CSBP provided in late March this year, 28 March this year?---Yes.

PN412

That draft actually requires or required a lot of amendment to go into it to be able to be signed by the parties, didn't it?---The document that the LHMU have provided has changed this document, yes.

PN413

So what the intention of that document is you would agree is to combine what was the 2003 agreement now expired together with the schedule for the intent document that was with that, combine those into one whole document and at the same time put in together all the relevant award clauses from - - -

PN414

THE DEPUTY PRESIDENT: Mr Nicholas, I am confused over what documents you're referring to here. You might and the witness might be very familiar with them, but I am not. I wonder, just to facilitate me being clearer, I should mark some of these documents when you tender them through this witness.

PN415

MR NICHOLAS: Thank you, your Honour.

EXHIBIT #N1 ENTERPRISE AGREEMENT 2006 DRAFT
EXHIBIT #N2 DOCUMENT HEADED WITHOUT PREJUDICE CSBP LTD ENTERPRISE AGREEMENT 2006

PN416

THE DEPUTY PRESIDENT: I must say the question as you just ask it, whether it refers to those documents, I think it does, or not, I am a tad confused over what documents you're referring to.

PN417

MR NICHOLAS: Sorry, your Honour, and the second document that you just marked, could you repeat?

PN418

THE DEPUTY PRESIDENT: The CSBP Ltd Enterprise Agreement 2006, on the top right-hand page it's without prejudice. It's the summary document, I think, with comments on CSBP draft dated 28 March, so I take it N1 is the 28 March CSBP draft, is it?

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN419

MR NICHOLAS: That's right.

PN420

THE DEPUTY PRESIDENT: And N2 is the LHMUs comments on that draft.

PN421

MR NICHOLAS: The response, that's right.

PN422

THE DEPUTY PRESIDENT: Thank you.

PN423

MR NICHOLAS: And, your Honour, I believe you also have a copy of the expired enterprise agreement that wasn't marked, the 2003 agreement.

PN424

THE DEPUTY PRESIDENT: Yes, I do have a copy of that. That is AG833662.

PN425

MR BLACKBURN: Your Honour, when was the document marked N2?

PN426

THE DEPUTY PRESIDENT: N2, I've just marked it now.

PN427

MR NICHOLAS: Thank you, your Honour, so the question that I put to the witness was in relation to that unmarked document, the expired agreement and an attempt to combine the schedule to that document into the body of the agreement, that was the intention, wasn't it?---That's right.

PN428

It was also the intention to combine the Wesfarmers CSBP Ltd Award 2002 into that document?---That's correct.

PN429

Your Honour, I can provide a copy of that document, but I don't have it with me. I'm not sure that it's particularly relevant to have an exact copy of it, so, Mr Riordan, what CSBP did was provide a document to the union, N1, the document that's been marked N1, that didn't actually have a clear statement or summary of all the amendments that had been made to it, did it?---The document that we provided to the union was actually canvassed with union delegates, being Mr Searle, Mr Peterson, including Mr Davies, back in June/July we consolidated that document as a group. That is the document that formed the basis of the document that we provided to you.

PN430

So it didn't have an indication where wording had been changed on that document or what changes had been made?---The answer is no and the reason being is because when we went through the consolidation process in June and July, we at that time provided indications of where changes had occurred and we got to a point where we could no longer - sorry, where it was a case of no longer a problem to not refer to all the changes because we believed those changes had all been agreed to, so we were back to a consolidated document which is why the document we provided you didn't have a track change, if you like, but we certainly have previous versions that did.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN431

If I can provide the witness with a copy of a document, in fact, there's two. The first one is marked CSBP negotiations summary 27/4/07 and the second one is a document marked at the top without prejudice 27/4/07, LHMU 27/4/07. Are you familiar with those documents?---Yes.

PN432

So what is your understanding of what those documents are?---The document titled CSBP Enterprise Agreement 2006 draft without prejudice LHMU draft on 27 April is a document provided by the LHMU and the document titled CSBP negotiations summary 27/4/07 is also a document provided by the LHMU of the LHMUs assessment on the relevant clauses and positions to that.

PN433

Without going through clause by clause, that document and the summary deals with a whole range of substantial drafting issues, doesn't it?---Yes.

PN434

As a result of going through that, CSBP and LHMU have been able to agree on proposed wording for a whole range of clauses in the agreement?---I hope so.

PN435

We all hope so. If I could provide the witness with another - - -

PN436

THE DEPUTY PRESIDENT: I might mark those before you do.

EXHIBIT #N3 ENTERPRISE AGREEMENT 2006 DRAFT DATED 27/04/2007
EXHIBIT #N4 CSBP NEGOTIATIONS SUMMARY DATED 27/04/2007

PN437

THE DEPUTY PRESIDENT: The other two were N1 and N2, not M1 and M2.

PN438

MR BLACKBURN: If your Honour might advise us in relation to N2 and I would ask that that be marked for identification only at this stage and that is because it's not been proved in any proper sense, it's my friend's document, he's tendered it, he's not been able to advise the Commission when it was provided, the date of the document, who provided it and - - -

PN439

THE DEPUTY PRESIDENT: Yes, I will do that and note it as such at this stage, Mr Blackburn.

PN440

MR NICHOLAS: I would note, though, your Honour, the witness has agreed that he's seen it back around 12 April this year.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN441

THE DEPUTY PRESIDENT: Or before 12 April.

PN442

MR NICHOLAS: And he is familiar with that document.

PN443

THE DEPUTY PRESIDENT: Yes.

PN444

MR NICHOLAS: Your Honour, there's another document I will provide the witness. It's actually bundled up as one document. There are two there or, sorry, there are three there. There is a letter with the name Jack Nicholas at the top, a print-out of an email and then there follows a document CSBP negotiations summary 15/5/07 and following that a draft agreement that is headed at the top right-hand without prejudice LHMU draft 15/5/07.

PN445

THE DEPUTY PRESIDENT: Is that the same as B1?

PN446

MR NICHOLAS: It may be, your Honour. Yes, the draft agreement at the back of that, the final document of that bundle 3 is in fact B1, your Honour, but if I could have that bundle of documents marked.

PN447

THE DEPUTY PRESIDENT: So you're not tendering through the witness, you're just wanting them to be marked at this stage?

PN448

MR NICHOLAS: That's right.

EXHIBIT #N5 BUNDLE OF DOCUMENTS

PN449

THE DEPUTY PRESIDENT: In fact, on a quick look at that last document, it is a little different to B1 by the look of it in that there are comments and deletions and things on the side, so, anyway, as a bundle I will mark them N5.

PN450

MR NICHOLAS: Thank you, your Honour.

PN451

Can you explain what these documents are, Mr Riordan? Are you familiar with them?---I haven't had the opportunity to go through the document titled CSBP negotiations summary 15/5, nor have I had the opportunity to review the document titled CSBP Enterprise Agreement 2006 on 15/5.

PN452

Are you aware of anyone from CSBP looking at those documents or considering their contents?---Not completely, no.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN453

Not completely? Does that mean that no-one has looked at them completely or you're not completely aware of anyone looking at them?---I'm not aware of anyone looking right through them.

PN454

So the documents have been - you are aware that the documents have been considered by someone at CSBP?---No, I'm suggesting they haven't been considered.

PN455

You gave evidence in relation to a meeting on 2 May this year. Can you just recount what was discussed at that meeting?---Can I be permitted to review my statement just to refresh my memory?

PN456

Certainly. Maybe I can jog your memory. It was a negotiating meeting between yourself and the LHMU negotiators. Sorry, it may have been 1 May?---Yes, I remember that meeting.

PN457

What was discussed at that meeting?---The document that the LHMU provided, we sought to seek further clarification on the contents of the document and the LHMU sought to seek from CSBP if it had changed its view or position on the matters of the prill plant operators being paid at level 5, the level 7 operators being classified at level 8 and the shift cover payment that the LHMU were seeking, they sought that questions be - it was an information seeking exercise from CSBP to see if we had changed our position on that.

PN458

Was the issue of the level 5 training being an allowance, was that explored and did you provide an undertaking to give any feedback about the drafting of that particular matter?---In the context of the prill plant operators?

PN459

An allowance for training as level 5, to be level 5?---I think the LHMU were seeking clarification on whether or not the allowance would be paid if someone was - sorry, no, I'm thinking of the tradesman shift allowance there. I can't recall any discussions on that.

PN460

I put it to you that at that meeting there was an issue about the drafting of that clause and the LHMU had indicated essentially that it would look at a clause that you redrafted in the agreement. You provided an undertaking to give that drafting back to the LHMU in the near future after that meeting?---Yes.

PN461

Just on the allowance to be paid for those people that were level 4 and training to be level 5, you gave evidence about that before. If you could just clarify that. The allowance is only paid during the time that the employee is engaging in the training, isn't that right? That's the intent of the allowance?---Yes, but it goes a step further. It goes to say, well, look, if CSBP doesn't provide an opportunity for the employee to do the training, we will continue to pay the allowances for it.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN462

That's right, and once the training is complete, then the intention is that that employee becomes level 5 and doesn't receive an allowance, just gets paid at the level 5 rate?---Correct.

PN463

I put it to you at that meeting of 1 May you also gave an undertaking to provide feedback about the issue of the loss or potential for loss of entitlements by changing the recognition of trades certificate to an allowance?---Yes.

PN464

Have you ever provided that feedback in writing?---Not in writing, no.

PN465

Have you provided that feedback in any other way?---Verbally, yes.

PN466

When did you do that?---I spoke to you at that meeting as well and said I'm not aware that any employee loses any entitlements when they are on worker's compensation or salary continuance and reiterated that position when we spoke in a telephone conversation about a week ago.

PN467

I put it to you that the telephone conversation that we had when you spoke about that was after or at the time that I spoke to you about the application for a protected action ballot?---It's possible, yes.

PN468

In terms of the drafting, not on the issues that have been unable to be resolved, but on the drafting on a whole range of other matters that are dealt with within the agreement, you would agree that the LHMU has been committed to that process in trying to iron out where there were areas of disagreement or might need some clarification in the agreement?---Yes.

PN469

In terms of what your understanding is of the major issues that aren't agreed in that document now, what is your understanding of them at the present moment?
---The level 7, level 8 issue is still outstanding, the shift cover payment is still outstanding, the prill plant operators, I'm not sure that that's no longer an issue.

PN470

I might suggest that you look at the documents that have been provided by the LHMU in terms of the draft that was provided on the 15th?---I'm happy to explain why I haven't had the opportunity to if you would like. I was away on the - you emailed it through on 7 pm on the Tuesday, I was away on Wednesday and asked my secretary to phone you to that effect and Thursday we get your application for a secret ballot application, so I've not had ample time to do that.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN471

Since that time, you haven't had an opportunity either?---No. I've been preparing other work.

PN472

If we just look at the shift cover issue, what is your understanding of the LHMUs claim in respect to that?---That it was a claim which was initiated on or about 26 March and at that time the claim was either to be paid a penalty rate and it wasn't explicit at that time as to what the penalty rate sought was. It has since been clarified that the claim that the union is seeking is double time off for a shift cover.

PN473

I actually put it to you what is in the draft agreement now is a claim for being paid the ordinary rate plus being paid for having an extra accrual of time for time put onto annual leave?---If that's in the document of the 15th, I haven't seen that.

PN474

So in terms of just the basic principle about being paid for an extra amount for working a shift at short notice, an overtime shift at short notice, you would agree that there is nothing out of the ordinary or strange about that kind of a principle?
---I think it's remarkably out of the ordinary for CSBP when that is something that we paid for two agreement - sorry, I won't say two, numerous agreements ago when we organised for employees to go to a 12 hour shift roster. We negotiated the terms and conditions at that time which included CSBP having employees provide shift cover and being rewarded for that 12-hour shift, there was a payment included in doing that 12-hour shift through the wages, so it is something that we paid for numerous agreements ago, so it is out of the ordinary that the union are now asking us to make some sort of payment again for something we've already paid for in the past.

PN475

So under the previous agreement, people got paid an extra amount for working a 12-hour shift?---That was negotiated as part of the salary that was offered, yes.

PN476

But it's true, isn't it, that the shift cover concept put forward by the LHMU is to cover a different situation? That's where people are required to provide shift cover for people not able to perform their shift at short notice?---No, it's the exact same thing that CSBP has paid for in the past.

PN477

Obviously the parties are at some degree of difference on that point. If you look at the other issue that you say is outstanding, the issue of recognition of chemical operators, do you understand what the claim is?---Yes. I've referred to it thus far as a claim for level 7 operators to be paid at level 8. I should probably expand on that further. It's actually - currently employees are on level 6 for two cores for having the ability to work - if a single core has the ability to run one plant, two core is the ability to run two plants, so employees currently are on level 6 for two cores. We have offered for those employees to go to level 7. The union is seeking for those employees to go to level 8.

**** MATTHEW JOHN RIORDAN XXN MR NICHOLAS
PN478

You understand the general principle of recognising people with extra skill and extra responsibility to progress up a classification structure and be recognised for that?---Which is precisely why we expanded the classification structure from the current seven levels to nine levels in order to compensate employees for those recognised skills.

PN479

So you understand that it's a pretty average kind of claim, it's not a claim that's picked out of the sky or something that's out of the ordinary? CSBP has recognised that same principle itself in its proposed classification structure?
---We have made an offer to take people from level 6 to level 7.

PN480

Your Honour, that's all the questions I have for the witness.

PN481

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn.

<RE-EXAMINATION BY MR BLACKBURN [3.15PM]

PN482

MR BLACKBURN: Mr Riordan, early in your cross-examination my friend asked you, he referred you to a couple of the letters that have been sent to CSBP which are annexed to your statement as MR3 and MR4 and both of them make some reference to the fact that the union's position can change, that they reserve a right to change position or words to that effect and my friend put to you, said to you, well, that's always been the approach of the union, hasn't it, its right to reserve their position and you said no. Can you expand on that?---During numerous conversation, I think we started talking about 25 October, I would say in summary 25 October, 5 January we had conversations directly with Ms Smith. There's been numerous occasions where we've been at pains to state are these your only claims. Mr Romano did it again on 8 February, so that we wouldn't have this position of the union simply coming up with further claims. We wanted to clarify exactly what the remaining claims were which is why I disagreed with the question put to me, or the statement put to me, because we have consistently endeavoured to ensure the union outline their specific claims and that's on the basis on which we've made concessions because we've asked what are your claims and we've tried to address those claims that we've been told are the remaining claims.

PN483

So on 31 January when you asked Ms Smith whether they were the only two outstanding issued, did she qualify her response and say we reserve the right to add claims?---No. In fact, what I did say to Ms Smith was if they're not your only two claims, then there's probably no point continuing discussions.

**** MATTHEW JOHN RIORDAN RXN MR BLACKBURN
PN484

On 24 February after the union held a meeting on 19 February, you gave evidence that Ms Smith confirmed that there were four outstanding issues. Did she qualify that on that date?---She said they were the only four outstanding issues.

PN485

There was then a claim for back pay of allowances that was added on 16 March and then on 22 March, following further concessions on CSBPs part, you gave evidence that Ms Smith said that that now satisfied all of their claims except for the back payment of allowances and the only thing between you was the back payment of allowances. Did she add at that time that there might be other claims that she might add? Did she qualify that statement?---No.

PN486

You gave evidence that on 30 March Mr Townend assured you that the two remaining claims that had been added on the 26th, being the claims for additional payment for shift cover and level 7, level 8 chemical operators, Mr Townend assured you on 30 March that they were the only claims the union would continue to pursue and that statement was confirmed by Mr Ashley Monahan. Did anybody else in the room reserve a right on the part of the union to add other claims?---No.

PN487

Now, just on the issue of trades on shift, you gave evidence that the company pays all allowances to employees on annual leave. Was it intended to use the trades on shift issue to deny payment of a trades allowance on annual leave?---No.

PN488

Moving to another point, my friend asked you, he referred to the letters that have been sent by Blake Dawson Waldron on 19 April and 15 May and you will recall that those letters conclude by asking the union to revert, to take its latest claims off the table and to make an agreement in terms of the offer that CSBP has made on 26 March. Now, the Blake Dawson Waldron letters were on 19 April and 15 May. Before that time, had you provided the union with a draft agreement?
---Yes.

PN489

So when my friend said to you when those letters went, there was no form of words able to be agreed to, is that correct?---No. We had provided a draft agreement back in late March.

PN490

If I can ask you about N2. Do you have N2 in front of you?---Sorry, you'll have to refresh my memory on which one is N2.

PN491

N2 is the one headed LHMU comments on CSBP draft dated 28 March?
---Yes, I have that.

**** MATTHEW JOHN RIORDAN RXN MR BLACKBURN
PN492

You've also got with you N4 which is titled CSBP negotiations summary 27 April?---Yes.

PN493

You've also got with you N5 which is a bigger document and on the third page of N5 there's CSBP negotiations summary 15 May?---Yes.

PN494

Now, when do you say that you saw the first document, exhibit N2, if it is the first document, the document titled LHMU comments on CSBP draft dated 28 March?
---I would agree with Mr Nicholas in saying I'd seen that on or about 12 April.

PN495

How did it come to you?---It was provided to us by email from the LHMU.

PN496

From Mr Nicholas?---From Mr Nicholas.

PN497

Now, the first line there has:

PN498

LHMU response, CSBP to confirm they want multiple union agreement further to Federal Court submissions.

PN499

Did you notice that at the time?---Well, I have read through the document so, yes, I noticed that comment.

PN500

What did you take that to mean?---That CSBP is comfortable with having a tripartite agreement.

PN501

Was that issue ever followed up with you by the LHMU?---Not that I can recall.

PN502

Did you ever respond to the LHMU on that issue?---No.

PN503

Yet it no longer appears to be an issue in N4 or N5, the two later documents, do you agree?---I agree.

PN504

But you're saying that you didn't respond to the LHMU on that issue and they never pursued it with you?---Certainly never put anything in writing. It's fair to say as I suggested to Mr Nicholas that CSBP has no objection, but I can't recall providing anything, a formal response to the LHMU on that.

PN505

You said in your evidence that you had had discussions a couple of months ago with Mr Wilton from the CEPU, Mr Tracy and was it Mr Townend or Ms Smith?
---I think in my original evidence I said Mr Townend. However, it was Ms Smith that really we canvassed that - the notion was canvassed in January and Ms Smith alluded to, well, look, we operate as a single bargaining unit, so it was clear that the LHMU was seeking a multi-union agreement.

**** MATTHEW JOHN RIORDAN RXN MR BLACKBURN
PN506

If I can take you now to the letter of 8 February which is attached to your statement. It was a letter to you attached to your statement as annexure 3 from Ms Smith and she identifies in the letter, at the bottom of the page she says:

PN507

The following issues are the major obstacles to reaching agreement.

PN508

Well, firstly she refers to the bargaining period which had begun the day before which is the one that identified all three unions as the negotiating parties?---Yes.

PN509

Then having referred to that argument during the first paragraph, at the bottom of the page she says:

PN510

I note given the negotiations, note the following issues are the major obstacles to reaching agreement.

PN511

And then she sets out the four outstanding matters, being the same four outstanding matters that are then restated on 12 February before Vice President Lawler, but attached to the document is a log of claims?---Yes.

PN512

That log includes for example at item 5 demands for a pay convenor, item 3 health cover?---Yes.

PN513

Was it ever suggested to you that the union was now re-invigorating that list of claims?---No, quite the contrary, on the letter of the 16th it points out that there's no intention to re-invigorate other claims.

PN514

My friend has put in a number of draft documents where some progress has been made in the drafting of an agreement, but despite all those documents going back and forth or while those documents have been going back and forth, has the union resiled from the three additional claims added on or after 26 March?---No.

PN515

You were asked about the extra claim for shifts as short notice. My friend put it to you that it was a reasonable claim and you said that this was something that had been negotiated previously. Can I take you to the enterprise agreement, the current enterprise agreement? Do you have a copy of the current enterprise agreement?---No, I don't. I do now.

PN516

Clause 3, paragraph (f)(xii)?---In the intent document, do you mean?

**** MATTHEW JOHN RIORDAN RXN MR BLACKBURN
PN517

Yes, it's in the intent document annexed to the agreement. Do you have (xii) now?---Can you read that out and explain what that paragraph is intended to refer to?---It states:

PN518

Continuous shift workers are required to provide cover of all operating plants in the event of an absence by another continuous shift worker or if additional labour is required for plant start-ups, plant cleaning and another unforeseen event.

PN519

So that clause is designed to provide where an employee, assuming they're absent, another employee is bound to provide - come in and replace that person who is absent or alternatively if additional labour is required for plant start-ups, plant cleaning and other unforeseen events is essentially what shift cover is.

PN520

So when you said it had been paid for before, is that to what you're referring?
---That's exactly right.

PN521

Nothing further. Thank you, your Honour.

PN522

THE DEPUTY PRESIDENT: Thank you. You're excused, Mr Riordan.

<THE WITNESS WITHDREW [3.30PM]

PN523

MR BLACKBURN: Your Honour, that concludes the evidence for the CSBP.

PN524

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Nicholas.

PN525

MR NICHOLAS: I call Carolyn Smith.

PN526

MR BLACKBURN: Your Honour, might I just have a two minute break before Ms Smith?

PN527

THE DEPUTY PRESIDENT: Yes, we will have a two minute break if that suits you, Mr Blackburn.

PN528

MR BLACKBURN: Thank you, your Honour.

<SHORT ADJOURNMENT [3.30PM]
<RESUMED [3.48PM]

PN529

THE DEPUTY PRESIDENT: Mr Nicholas, just thinking in that little break, it's unlikely I would expect that this will be finished this evening. I'm happy to continue the hearing today, but I'm inclined to list it for tomorrow morning for your evidence and any submissions. Given that you are probably the one that is most affected by any delays in this, does that cause you any angst?

PN530

MR NICHOLAS: Your Honour, I note that the parties have come to an agreement in relation to agreeing that any decision in this matter should wait until after tomorrow morning in any event, so if the adjournment is not going to delay the decision, it may not have a material effect on when we actually get a decision for a ballot and then affect the timetable for any ballot.

PN531

THE DEPUTY PRESIDENT: Yes, so does that mean you would be agreeable to the delay until tomorrow or not? Are you inclined one way or the other? I am just conscious of the time. We have been sitting all day.

PN532

MR NICHOLAS: Yes, your Honour, I think given those circumstances, there's no real reason to push on past the point of no return today.

PN533

THE DEPUTY PRESIDENT: Does that affect you at all, Mr Blackburn?

PN534

MR BLACKBURN: No, only in a positive way, your Honour.

PN535

THE DEPUTY PRESIDENT: Well, I might be inclined to press on. I will adjourn and this will be reconvened at 10 o'clock tomorrow morning.

<ADJOURNED UNTIL TUESDAY 22 MAY 2007 [3.50PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MATTHEW JOHN RIORDAN, SWORN PN84
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN84
EXHIBIT #B1 DRAFT AGREEMENT DATED 15/05/2007 PN276
EXHIBIT #B2 WITNESS STATEMENT OF MATTHEW JOHN RIORDAN WITH ANNEXURES PN317
CROSS-EXAMINATION BY MR NICHOLAS PN329
EXHIBIT #N1 ENTERPRISE AGREEMENT 2006 DRAFT PN415
EXHIBIT #N2 DOCUMENT HEADED WITHOUT PREJUDICE CSBP LTD ENTERPRISE AGREEMENT 2006 PN415
EXHIBIT #N3 ENTERPRISE AGREEMENT 2006 DRAFT DATED 27/04/2007 PN436
EXHIBIT #N4 CSBP NEGOTIATIONS SUMMARY DATED 27/04/2007 PN436
EXHIBIT #N5 BUNDLE OF DOCUMENTS PN448
RE-EXAMINATION BY MR BLACKBURN PN481
THE WITNESS WITHDREW PN522