BP2007/2986, Transcript of Proceedings [2007] AIRCTrans 342 (12 July 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17068-1

COMMISSIONER LEWIN

BP2007/2986

s.451(1) - Application for order for protected action ballot to be held
Construction, Forestry, Mining and Energy Union
and
Programmed Maintenance Services Limited
(BP2007/2986)

MELBOURNE

2.22PM, WEDNESDAY, 27 JUNE 2007

Continued from 25/6/2007

Reserved for Decision

PN1

THE COMMISSIONER: I understand Mr Eichenbaum you foreshadowed a jurisdictional objection on the last occasion?

PN2

MR EICHENBAUM: Yes, Commissioner, not necessarily a jurisdictional objection per se Commissioner, but matters that go to whether or not an order should be granted in the circumstances.

PN3

THE COMMISSIONER: I see all right.

PN4

MR EICHENBAUM: However, Commissioner I should also advise you together with that and the way in which our submissions are framed in the matter, we’ve also filed with the registry earlier this afternoon, the application for the suspension of the bargaining period. I’ve provided a copy to Ms Gray and I could certainly hand that up Commissioner if that’s appropriate now, or when we get to that point in my submissions whichever is the more convenient.

PN5

THE COMMISSIONER: I’ll hear from Ms Gray first as there’s no jurisdictional objection. I think it goes to the question of whether or not the application should succeed?

PN6

MR EICHENBAUM: Yes, Commissioner.

PN7

THE COMMISSIONER: Not whether or not it’s competent and potentially in light of something that you said on the last occasion, if the application were to succeed in any form it would be of a matter that would be subject to some particular consideration in the terms of any order.

PN8

MR EICHENBAUM: Indeed and I’ve addressed that in my outline of submissions which I’ve prepared. Commissioner if I might, I’ve also only just now I had thought that if I emailed a letter overnight, it would have arrived, I know she’s not in her office, so I acted on a wrong assumption, so I’ve only just given her a copy of this letter now. But I think there is an issue that does need to be addressed in terms of the way in which this matter proceeds and that is that Commissioner you are undoubtedly aware of the proceedings under section 704 of the Act where you assisted the parties in their negotiations.

PN9

Section 707 of the Act makes any of those proceedings and anything that’s tabled in those proceedings private to those proceedings unless the parties agree and it is a matter that goes to both evidence that might be lead in a matter and matters that are known to the Commission.

PN10

THE COMMISSIONER: What do you say the consequences of this matter are?

PN11

MR EICHENBAUM: That there is – there are some matters that in
Mr Van Der Meulen’s witness statement that we were provided a copy of on Monday that I say go to things that were said or done in the course of those proceedings, that ought not to be admissible unless all the parties agree. Commissioner our position on that, is that we believe it’s going to be most effective in dealing with the application s that are before the Commission today if everything that happened in those proceedings were able to be received in evidence and dealt with. We certainly are content to agree on those terms because as I say I’ve only just put that to Ms Gray and I’ve not had an opportunity to obtain a response. I should also foreshadow Commissioner that while I don’t believe there is anything in the witness statement of Mr McTaggart that I’ve prepared or any matter that I’m going to take him to that would necessarily intrude into that area. For the avoidance of doubt I believe it would be preferable that an agreement in those terms were reached. If the Commission pleases.

PN12

THE COMMISSIONER: Thank you Mr Eichenbaum. Does that raise any issue for you Ms Gray?

PN13

MS GRAY: Commissioner I’ve take instructions from Mr Van Der Meulen and we don’t have any concern about all or any matters dealt with in conciliation before yourself sir, being taken into consideration in this matter.

PN14

THE COMMISSIONER: I think Mr Eichenbaum is foreshadowing that they would like to circumscribe what’s publicly available is that right Mr Eichenbaum?

PN15

MR EICHENBAUM: No Commissioner it is in fact the opposite. We believe that in the circumstances - - -

PN16

THE COMMISSIONER: You’d like it all in?

PN17

MR EICHENBAUM: Yes Commissioner.

PN18

THE COMMISSIONER: Very well, we’ll proceed on the basis that the parties are free to refer to the content of the conciliation process.

PN19

MR EICHENBAUM: :Thank you Commissioner.

PN20

THE COMMISSIONER: For the purposes of this application.

PN21

MS GRAY: Commissioner two procedural matters – one is that we were served with a copy of the company’s application to terminate the bargaining period and Mr McTaggart’s witness statement only half an hour ago. Prior to cross-examination of Mr McTaggart we would seek an adjournment of half an hour to prepare for cross-examination. I’ve had the advantage of briefly looking at the outline of Mr Eichenbaum’s submissions and the union would concede that there is an ambiguity in the description of employees to be balloted in the application.

PN22

It had – the union wasn’t actually aware that we had a member of PMS who was engaged in ground duties roles but we have checked that and it appears to be the case. We would seek as a result of that to amend the application to properly describe the employees to be balloted by the inclusion of the words, “as emergency and protective services officers” to follow the wording, gauged in the types of employees to be balloted on the second page of the application.

PN23

THE COMMISSIONER: Can you just bear with me? Right we are on the form R11, that’s what you are referring to?

PN24

MS GRAY: Yes, I am Commissioner.

PN25

THE COMMISSIONER: Form R11 what page?

PN26

MS GRAY: The second page, under the heading of types of employees to be balloted.

PN27

THE COMMISSIONER: So after the wording, gauge as emergency and - - -

PN28

MS GRAY: Protective services officers.

PN29

THE COMMISSIONER: All right, is there any objection to that amendment?

PN30

MR EICHENBAUM: No Commissioner.

PN31

THE COMMISSIONER: The application is amended accordingly and I’ll make the amendment by hand and initial it on the form R11 file.

PN32

MS GRAY: We don’t think that there is the same difficulty involved in the draft order but it may be that we may need to seek an amendment to the draft order, but perhaps that would be best dealt with after the rest of the case has been heard, or towards the end of the hearing just in case there are any other issues to be dealt with in terms of the draft order. Otherwise Commissioner we would state that now that the company has an application in to terminate the bargaining period that the onus of evidentiary proof falls on them to establish those grounds.

PN33

One of those grounds of course is the same ground as that which the onus rests on the union to establish in terms of supporting our application for a ballot order. That is whether or not the union has been genuinely trying to reach an agreement. Perhaps nothing much falls on that if the matters are being heard together Commissioner but what we would propose is that we would call Mr Van Der Meulen to give his evidence. We would have Mr Van Der Meulen cross-examined and re-examined and we would then deal with – or hear the evidence in chief of Mr McTaggart.

PN34

We would then seek a half hour adjournment to prepare for cross-examination. At the conclusion of the evidentiary case that the parties would then make their respective submissions and we would leave it to the Commission to determine at the conclusion of the case whether or not the respective parties have met their evidentiary onus.

PN35

THE COMMISSIONER: So you are calling Mr Van Der Meulen?

PN36

MS GRAY: Yes, thank you Commissioner.

<LUKE VAN DER MEULEN, AFFIRMED [2.34PM]
<EXAMINATION-IN-CHIEF BY MS GRAY

PN37

MS GRAY: Thank you, Commissioner. Mr Van Der Meulen have you prepared a witness statement for these proceedings?---Yes, I have.

PN38

Do you have a copy of it with you?---I do.

PN39

Is it true and correct?---Yes.

PN40

To the best of your knowledge?---Yes

PN41

Commissioner we would seek that that be marked.

PN42

THE COMMISSIONER: Any objection?

PN43

MR EICHENBAUM: No Commissioner.

EXHIBIT #A1 WITNESS STATEMENT OF LUKE VAN DER MEULEN

PN44

MS GRAY: Commissioner, we don’t have anything to ask of
Mr Van Der Meulen further in evidence in chief.

PN45

THE COMMISSIONER: Yes, Mr Eichenbaum?

PN46

MR EICHENBAUM: Only a very small number of questions.

<CROSS-EXAMINATION BY MR EICHENBAUM [2.35PM]

PN47

MR EICHENBAUM: Could I take you to paragraph 4 of your witness statement?---Yes.

PN48

Do you want to amend that paragraph in any way in light of what Ms Gray has said about ground staff?---To the best of my knowledge that doesn’t include those people.

PN49

Thank you similarly in terms of paragraph 5 can you tell us who the employer of the employees was in 2003?---Serco.

PN50

So it wasn’t actually Program Maintenance Services?---I’m not sure what the tie between those two companies are but it was Serco at the time.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN51

Yes so you’ve not been involved with negotiations with Program Maintenance Services directly about the 2003 agreement?---No.

PN52

As to paragraph 8 of your witness statement you talk about concessions that have been made in the course of negotiations and you identify some concessions there. Can I ask have you had the opportunity to have a look at the witness statement of Mr McTaggart that’s been prepared in these proceedings?---Briefly over lunch yes.

PN53

There is an exhibit to that witness statement did you have the opportunity to look at that at all?---Not thoroughly, not yet no.

PN54

Commissioner, might I – would it be appropriate to have that handed to
Mr Van Der Meulen?

PN55

THE COMMISSIONER: Yes. You haven’t filed a statement yet have you?

PN56

MR EICHENBAUM: No I haven’t Commissioner.

PN57

THE COMMISSIONER: Is there any reason why you can’t hand it up now? So that I can follow it.

PN58

MR EICHENBAUM: No not at all, yes thank you, and Commissioner if I could also perhaps hand up the outline of submissions and a copy of the application to suspend the bargaining period.

PN59

THE COMMISSIONER: That would be convenient. I’m sure you understand that I’m not admitting Mr McTaggart’s statement at the moment.

PN60

MR EICHENBAUM: No I understand.

PN61

THE COMMISSIONER: I’m using it for the purpose of following your cross-examination.

PN62

MR EICHENBAUM: Yes, thank you Commissioner.

PN63

Now Mr Van Der Meulen this is not something that you’ve prepared, and so clearly I’m not going to hold you accountable for the document itself. But in terms of rates of pay I put it to you that you said in paragraph 8 that there’s been concessions made concerning rates of pay?---Yes.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN64

I put it to you that if this table is correct, Mr McTaggart will say that it is when he gives his evidence, I put it to you that there actually hasn’t been any concession in rates of pay?---In the area of the security guard, I mean it started of at 25.27, and the latest position was 23.80, now that’s a concession.

PN65

Plus $1.50 per hour which comes out to 25.30?---That’s still lower than the original position, yes.

PN66

Sorry, can I just say that again, the original position is 25.27?---Well yes.

PN67

The current position is 25.30?---Yes, it’s a concession for one of them that’s greater than that, what is it three cents. It’s a concession, we are not saying it’s a large one, but it’s a concession.

PN68

In relation to - - -

PN69

THE COMMISSIONER: Sorry what do you say the total is now?

PN70

MR EICHENBAUM: $25.30 Commissioner, as opposed to an original claim of $25.27.

PN71

THE COMMISSIONER: All right so Mr Van Der Meulen do you understand the question?---Yes, there’s two people involved there though, it’s a reduction for one and not another.

PN72

I don’t understand, what I think Mr Eichenbaum is putting to you is that at the commencement of the negotiations saw the union seeking an active rate for a security guard of $25.27?---Yes.

PN73

That was subsequently on your evidence changed to a combination of $23.80 per hour plus $1.50 per hour?---Yes.

PN74

That therefore, what you are now claiming is three cents greater than what you were claiming?---Yes.

PN75

Consequently Mr Eichenbaum suggests to you that this should not be considered to be a concession as such?---There’s two security people involved there and one of them it is a reduction for one, and it’s a slight increase for another. Overall it would be a reduction.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN76

So could you just explain please the security positions and how you reach the numerical conclusion that there’s a lesser claim in relation to one employee and a greater claim in relation to the other? The greater claim being three cents, is that right?---The greater claim is three cents. The lesser claim is the difference between $23.80 and $25.27 that would apply to one of them.

PN77

So that person wouldn’t be in receipt of the $1.50 per hour?---One only yes.

PN78

Right so I understand your evidence is the concession is in relation to one of the security guards, you don’t seek the $1.50 per hour and you do not seek the $25.27 per hour?---Not for – no that’s right.

PN79

For one of those?---That’s right yes.

PN80

But for the other guard you seek $23.80 plus $1.50?---That’s right.

PN81

MR EICHENBAUM: Can I take you to the table under the heading, retrenchment, which is at the bottom of that page. I put it to you Mr Van Der Meulen that although the claim has been recast from being four weeks per year of service plus a pro rata amount for an incomplete year to two weeks per year of service pro rata thereof, the addition of a payment of $57 per employee per week to IncoLink, is in fact an increase in the union’s position, not a concession?
---Without – we haven’t had an opportunity to calculate those figures. We believe it’s a concession, there’s also the issue there that’s not mentioned is that we wanted the deed to – initially we wanted to put a position in place where a trust deed would protect that money should PMS no longer be the employer there and there was lots of arguments about that. That is not shown to be dropped but it is, and it was thought to be a more – you know practical way to cover it that way through IncoLink.

PN82

Mr Van Der Meulen I put it to you that on each of the other matters while there may appear to be concessions that have been made those concessions are very, very small and don’t signify any significant movement by the union in it’s position?---Well I think in two – a reduction in ordinary hours or an increase in ordinary hours from 36 to 42 at the time was noted by the company as a very major concession. It was heralded as a great break through, so that’s not been shown in this document. The sick leave from a no debit sick leave to 12 days a year is a very major concession. Annual leave which applies to 16 of those people has been reduced by 12 hours and for something like two, it’s increased by 10, so that’s a reduction or a concession.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN83

THE COMMISSIONER: Reduced by 10 for the two employees?---Sorry, no it’s increased from 150 to 160 hours for two.

PN84

But reduced by 12 hours for other employees?---But reduced by 12 hours for 16. So overall that’s a concession.

PN85

MR EICHENBAUM: Can I take you to paragraph 20 of your witness statement? You refer there to a request of the Commissioner that a recommendation be made on wage rates, when did you make that request?---I wouldn’t be held to the exact date, but I’d say a week ago.

PN86

THE COMMISSIONER: I should really correct that, I think this statement doesn’t fully reflect the response that I gave to the email that was sent to me. At least accurately, and that is that the response was that the Commission could not make a recommendation unless the parties agree.

PN87

MR EICHENBAUM: Yes, thank you Commissioner.

PN88

THE COMMISSIONER: A very different formulae.

PN89

MR EICHENBAUM: Yes Commissioner, yes. At the time that you sent that request tot eh Commissioner did you send a copy of the request to
Mr McTaggart?---No, and after talking to Commissioner Lewin, I realised that in order for that to be done properly it would need to be communicated because that’s one thing that I did pick up from that conversation, that it would need agreement from both the employer and the union. I think within an hour or so emailed the document to Graham McTaggart following that with a phone call and I did relay that we’d both need to agree and that’s what I thought was communicated to me.

PN90

In Mr McTaggart’s witness statement he says that it was he that phoned you. Who was it that placed the phone call?---As I recall I phoned, yes.

PN91

THE COMMISSIONER: I should also advise that I did advise Mr Van Der Meulen that he should notify the company and he should contact Mr McTaggart as soon as possible?---Yes, my recollection is that I phoned.

PN92

MR EICHENBAUM: Do you remember when that was?---Look I phone a lot of people, no it was – shortly after the discussion I had with Commissioner Lewin.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN93

But you don’t remember what time that discussion with Commissioner Lewin was at all?---No.

PN94

Mr McTaggart says that the conversation was on 22 June last Friday, does that accord with your recollection?---Look I haven’t got the diary of the conversation – no I don’t know.

PN95

That Mr McTaggart says that it was he that asked for a copy of what had been put to the Commissioner?---I discussed the proposal of getting a recommendation. Graham didn’t agree or disagree, but in the conversation said well why didn’t you send me what you sent to the Commissioner and I’ll make a consideration based on that.

PN96

Okay thank you I have nothing further Commissioner.

PN97

THE COMMISSIONER: Mr Eichenbaum, given the way this thing is going to run, the procedure, I don’t want us to get into any Browne and Dunn scenarios. In particular I’m referring to paragraphs 4, 5, 6, and 7 of Mr McTaggart’s statement. For instance I think there was some cross-examination about the security guard. I can’t recall whether it was put that that was the only concession or whether or not that was just the subject of concessions in relation to that particular class of employee. Mr McTaggart’s evidence is that there is no real concession in relation to wages, have you fully explored through the cross-examination that subject?

PN98

MR EICHENBAUM: Commissioner that was the reason why I did put to
Mr Van Der Meulen the questions specifically about the exhibit and put to him that there were no significant concession.

PN99

THE COMMISSIONER: Right just help me with this. Can you just take me through exhibit A so I can understand what the total actually means?

PN100

MR EICHENBAUM: Yes, it’s a total that’s been prepared by the company, comparing the positions put by the union at four different points in time. In September when the negotiations commenced. In December when the bargaining period was initiated. In March and Commissioner March 2007 of the document that’s being referred to there is actually exhibited to Mr McTaggart’s – sorry I withdraw that, Mr Van Der Meulen’s witness statement and June 2007 Commissioner, is put and has been extracted on two grounds. One is the course of the discussions in the negotiations facilitated by the Commission.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN101

The other is a document which I understand was sent to the Commission and to Mr McTaggart last Friday – sorry sent to Mr McTaggart last Friday, we have no knowledge of when it was actually sent to the Commission. But, which I now understand has been withdrawn by the union, Commissioner. The extent then that there is any difference between the position in March and June, it’s - - -

PN102

THE COMMISSIONER: It’s confined to the individual security guard?

PN103

MR EICHENBAUM: Sorry Commissioner?

PN104

THE COMMISSIONER: It’s confined on what I’m hearing you say to the one particular security guard.

PN105

MR EICHENBAUM: That’s certainly Mr Van Der Meulen’s evidence in response to my putting to him that there was a concession.

PN106

THE COMMISSIONER: That’s what your assertion is?

PN107

MR EICHENBAUM: Yes.

PN108

THE COMMISSIONER: You said that that was not a concession and he sought to indicate that it was a concession and he conceded that the rate of $23.80 plus $1.50 was actually greater than the original claim but that only applied to one employee and there was another employee to whom a lower rate of pay was now claimed?

PN109

MR EICHENBAUM: Yes.

PN110

THE COMMISSIONER: So you say do you that in paragraph 4 there were no concessions of any significant amount and Mr Van Der Meulen says there were in relation to hours of work, sick leave, annual leave?

PN111

MR EICHENBAUM: Yes, Commissioner. I should say and perhaps I should have put a question to Mr Van Der Meulen in these terms, in terms of hours of work the standard pattern of work at the moment is for a standard week of 42 hours. Perhaps if I could put that to Mr Van Der Meulen.

PN112

Do you agree that that’s right? That the standard pattern of work at the moment is 42 hours and so that accepting that 42 hours would be the ordinary hours worked, is not actually a concession?---For those people at PMS but not the rest of the people that work at that site. The common practice is the 36 hour week.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN113

THE COMMISSIONER: I think what you are saying is that the preparedness to continue working on a 42 hour week should not be considered to be a concession but that’s a matter that I’ll probably have to decide?

PN114

MR EICHENBAUM: Yes.

PN115

THE COMMISSIONER: It is not disputed as a matter of fact that what is described as the concession, is the agreement not to pursue the 36 hour week. Is that the essence of what you are putting? That your claim was for a 36 hour week?---Yes, the claim was definitely is for - - -

PN116

The original claim was for a 36 hour week?---Yes.

PN117

That claim is now abandoned?---Yes.

PN118

MR EICHENBAUM: Commissioner we say that rather than argue the case at this point Mr Van Der Meulen - - -

PN119

THE COMMISSIONER: Sorry I should just say in fairness to the witness that claim is now abandoned subject to agreement being reached on other terms?
---That’s right.

PN120

MR EICHENBAUM: But Commissioner, I just clarify with Mr Van Der Meulen was it ever the case that the claim was that there would be a change in the working pattern of the people for whom you are seeking to make an agreement?---To
36 hours?

PN121

Yes?---Yes.

PN122

That they would cease working the current rosters?---Yes.

PN123

That they work?---Yes. You don’t make a claim for 36 hour week without saying that that’s what’s going to happen if it is successful.

PN124

Okay, yes Commissioner I think I’ve taken that as far as I want to.

PN125

THE COMMISSIONER: Very well. Re-examination?

PN126

MS GRAY: Commissioner I’m trying to take a commonsense approach to the procedure of this matter and I note that there are matters being asserted by the company in support of its application to suspend bargaining period as disclosed in the respondent’s outline of submissions that don’t appear to be in Mr McTaggart’s witness statement. Now of course what the company chooses to bring in evidence is a matter for the company. But what I would say is that we would like to reserve the right to recall Mr Van Der Meulen if necessary if matters are raised in addition to what’s in Mr McTaggart’s witness statement which require evidence from
Mr Van Der Meulen from the union to oppose the application.

**** LUKE VAN DER MEULEN XXN MR EICHENBAUM
PN127

THE COMMISSIONER: And have not so far been canvassed?

<RE-EXAMINATION BY MS GRAY [2.55PM]

PN128

MS GRAY: Yes Commissioner. The only other matter I would like to re-examine on was the issue of wages that you’ve addressed Mr Van Der Meulen in terms of what you say has been concessions by the union. Were there any concessions made by the union in respect to wages which derive from classification structures?---I’m not sure what the question is.

PN129

Did the union make any concessions on classification structures with the company which would have then led to variances in the rates of pay for employees who we are seeking the agreement with?---The union made a concession that the number of classifications go from three to four.

PN130

Does that impact at all on your statement about having made concessions in relation to wages?---Well that was a concession because that’s not our preferred option and that would change the wage structure and that within that group of workers.

PN131

Would the workers on one of the four levels, rather than the three claimed by the union be worse off, wages wise?---Possibly yes.

PN132

Thank you, no further questions, Commissioner.

PN133

THE COMMISSIONER: Thank you for your evidence Mr Van Der Meulen, I think it’s best if you stay with us today until you are released. So don’t leave until I formally release you, it’s a requirement to be present.

<THE WITNESS WITHDREW [2.58PM]

PN134

THE COMMISSIONER: Ms Gray?

PN135

MS GRAY: That’s the evidence of the union Commissioner.

PN136

THE COMMISSIONER: Very well Mr Eichenbaum?

PN137

MR EICHENBAUM: Thank you Commissioner, if I could call Mr McTaggart?

<GRAHAM WILLIAM MCTAGGART, SWORN [2.59PM]
<EXAMINATION-IN-CHIEF BY MR EICHENBAUM

PN138

MR EICHENBAUM: Mr McTaggart, could you just state your name and address for the record?---Graham William McTaggart (address supplied).

PN139

Have you had prepared for you a witness statement in these proceedings?---Yes, I have.

PN140

Do you have a copy of that with you?---I do.

PN141

Is that witness statement true and correct?---Yes.

PN142

I tender the statement, Commissioner.

PN143

THE COMMISSIONER: Do you have any objection Ms Gray?

EXHIBIT #R1 WITNESS STATEMENT OF GRAHAM WILLIAM MCTAGGART

PN144

MR EICHENBAUM: Only one small matter to just raise with Mr McTaggart that isn’t dealt with in his witness statement. In Mr Van Der Meulen’s witness statement he refers to Australian Workplace Agreements that have reached their nominal expiry date?---That’s correct.

PN145

How many of the employees that are now subject to the application, that is, only those who are engaged in emergency and protective services, how many of these employees is a party to an Australian Workplace agreement?---To my knowledge 17.

PN146

Out of a total of how many?---On site?

PN147

Yes?---How many people on site, we’ve got 22 on site.

PN148

Of those 22, how many are engaged in emergency and protective services
work?---Seventeen.

PN149

Sorry could I just put that question again. You say there’s a total of 22 people on site, are all of those people engage in emergency and protective services work?
---No, they are not no.

PN150

17 people you said are engaged in that nature of work. Is there anyone who is engaged in that sort of work, who is not a party to the Australian Workplace agreement?---No, no there’s not.

**** GRAHAM WILLIAM MCTAGGART XN MR EICHENBAUM
PN151

Nothing further.

PN152

THE COMMISSIONER: Ms Gray you want half an hour?

PN153

MS GRAY: Yes, thank you Commissioner.

PN154

THE COMMISSIONER: 30 minutes.

<SHORT ADJOURNMENT [3.01PM]
<RESUMED [3.35PM]

PN155

THE COMMISSIONER: Ms Gray.

PN156

MS GRAY: Thank you Commissioner.

<CROSS-EXAMINATION BY MS GRAY [3.35PM]

PN157

MS GRAY: Mr McTaggart, you’ve in your exhibit A to your witness statement you’ve identified rates of pay based on four level classification structure?---That’s correct.

PN158

How many levels is the current classification of your employees are affected?
---Three.

PN159

Is it the company’s – was it the company’s claim to go to a four level classification structure?---That’s correct.

PN160

The union has agreed to a four level classification structure?---I thought that was still up for negotiation I didn’t think that there had been agreement on that. So I’m still of the opinion that we hadn’t closed that off as one of the tick in the box.

PN161

For how long have you been discussing in the negotiations a four level classification structure?---I think most of the way through – no not quite – about half the way through the negotiations we put a proposition to the bargaining team of the four levels.

PN162

Has the union been negotiating on the basis of that four levels since then?---Well we’ve been talking about it since then but as I said I don’t believe there’s actual recognition of it, final recognition.

PN163

Mr McTaggart could I ask you to have a look at the document which is annexed to Mr Van Der Meulen’s witness statement. Now the draft agreement which has been annexed as attachment 2.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN164

THE COMMISSIONER: I beg your pardon, attachment 1.

PN165

MS GRAY: Attachment 2 Commissioner?---Yes.

PN166

If you could go to page 9 of that document?---Yes.

PN167

Do you see there a proposal for a classification structure in the union’s claimed agreement?---Yes, I see that.

PN168

Would you agree with me that the union’s proposal for an agreement currently reflects a four level classification structure?---Yes, I would have to agree with that.

PN169

Mr McTaggart with the PSO, or the EPSO, what is the base rate at level 2? Sorry level 3?---Sorry I don’t understand the question, which base rate, our base rate? The union’s base rate?

PN170

The current base rate?---I haven’t got that in front of me – no I haven’t got that in front of me and off the top of my head, I can’t quote you a figure, but I probably got in my documents over there.

PN171

Commissioner could we ask that - - -

PN172

THE COMMISSIONER: Permission is granted to leave the witness box.

PN173

MS GRAY: Yes?---So which level I have the current rates here.

PN174

You have the current rates?---Yes.

PN175

Could you tell us what for the grade 3 what the base rate is, the base hourly rate?
---Well there’s no grade 3 in the current structure, there’s only a grade 1 and 2 and a team leader in the current structure.

PN176

So when you’ve been having discussions has there been a key classification rate from which you’ve discussed where people should sit?---We’ve tabled as part of the grading structure a number of staff that appear in each one of those levels. But that still hadn’t been agreed at the last meetings.

PN177

Well if you could choose a level other than team leader and identify for us what that level is and what the base hourly rate is for that level?---I’ve got the current hourly rate our salaries are annualised, so I’ve got the current hourly rate of $23.22.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN178

Now in terms of terminology does that rate contain any loadings for the working of weekends, shift work, public holidays or rostered overtime?---Rostered overtime is paid separately but it covers all other rates, it’s an annualised rate.

PN179

So it’s a loaded up rate rather than a base rate?---Correct.

PN180

Sop what would be the base rate for that when you disaggregate those additional loadings?---Again I haven’t got those figures, I haven’t brought those figures with me. We work on an annualised salary and that’s the annualised salary that we have.

PN181

THE COMMISSIONER: But before you add penalties to it, obviously there is a rate to which the penalties are applied, is that right?---That’s right, yes, but I haven’t got those rates – that dollar rate in front of me no, so I can’t say what it was.

PN182

MS GRAY: Now when you prepared your witness statement did you have that amount in front of you?---Yes, I did.

PN183

So from that you were able to identify that the union’s claim was for an increase you say of between 32 and 50 per cent?---That’s correct, that’s right.

PN184

Can you give a – sorry between 21 and 32 per cent for non-casual employees. But you’re unable to recall that base rate or any of the base rates for us?---As I said I haven’t got the information with me no I can’t off the top of my head, and I wouldn’t do that.

PN185

So what do you say is the union’s current claim for the base rate?---Well it has to be as per their agreement which is the $30-odd.

PN186

THE COMMISSIONER: No, that’s not the loaded rate is it?---For the – let me check.

PN187

Is that the loaded rate or the base rate as you understand it?---Just let me check.

PN188

So you’ve compared it with your loaded rate?---I have yes I’ve compared – that I believe is the loaded rate 33 – sorry if we’re using four $30.62 the loaded rate.

PN189

MS GRAY: So what do you understand to be the union’s most recent claim for a base rate, an unloaded rate?---Again off the top of my head – no off the top of my head, I don’t know. I do know but I haven’t got it with me in front of me no.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN190

If I put it to you that it was $19.60 does that sound like?---I was going to suggest $19 something, so yes.

PN191

Would you agree with me that the company’s latest offer for base rate, unloaded rate is $17.50?---Again I haven’t got that in front of me, so I can’t answer that one.

PN192

THE COMMISSIONER: You have no reason to contest that?---Again I haven’t got it in front of me, I didn’t bring the base rates with me.

PN193

Does it sound unreasonable?---No, it probably doesn’t no, it’s in the ball park.

PN194

MS GRAY: Would you agree with me that it’s in the ball park for the current base rate to be $15.60?---Just trying to do some maths – again I couldn’t 100 per cent agree to that because again I haven’t got that figure.

PN195

Mr McTaggart, what is the company’s procedure when it employs casuals? What level do they come in at and what rate are they paid at in terms of the position that they are filling?---They come in at the base rate, it depends on the position that they are filling so if it’s a standard gatehouse person that comes in at level 1, if it’s a PSO it comes in at current level 2.

PN196

So would I be right in saying that whatever position they’re filling is the level that they are paid at?---That is my understanding yes.

PN197

So would you – I put it to you Mr Mc Taggart that the reason why the union’s claim is higher for casual employees is incorporating a claim that they be actually paid at the level at the position that they are filling, which is not the current procedure?---Again my understanding is they fill where they need to fill and they are paid at that rate.

PN198

THE COMMISSIONER: That may be the practice, I think the question is directed to a different subject, it is directed to the claim and the nature of the claim?---So if I could have the question again then please Ms Gray?

PN199

MS GRAY: I put it to you Mr McTaggart that the union’s claim is for casual employees to be paid at the level of the position that they are filling?---That could be their case yes.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN200

I also put it to you that it is not the current procedure at PMS, at the TRU Yallourn energy site?---To my recollection that is the case, however, I’m quite willing to check and come back and confirm that .

PN201

THE COMMISSIONER: How should I understand the meaning of your answer?---I believe that we are paying the level that they fill. If they’re a security guard it’s a level 1, if it’s a protection services officer it’s a level 2. However, I can check that and confirm in writing back to the Commission.

PN202

It’s being put to you that that’s not the case as I understand it, is that right?

PN203

MS GRAY: Yes, that’s what we are putting to Mr McTaggart Commissioner. But I won’t seek to take that any further as Mr McTaggart isn’t in a position to confirm or deny.

PN204

Mr McTaggart what do you say is incorporated in the all up salary?---Weekend penalties, shift allowance, we pay public holidays separately, we pay overtime separately. So incorporating those two elements in the all up - - -

PN205

Overtime is paid – I’m sorry?---That’s incorporated in the annualised salary, leave loading also included in it.

PN206

THE COMMISSIONER: Sorry I’m a little bit confused. Overtime?---Overtime is not included, public holidays is not included but leave loading and shift allowance is.

PN207

Weekend penalties?---Weekend penalties, correct.

PN208

MS GRAY: With overtime, what are ordinary hours per week and what is rostered overtime in addition?---It is 42 hour week is the roster and any time worked over that, over the 42 hours is paid as overtime.

PN209

So the overtime that you say is paid separately is only for hours additional to 42 hours?---42 hours a week, yes.

PN210

THE COMMISSIONER: Could I just ask you, what’s the number of ordinary hours in a month? Is it four times that?---I think it is yes.

PN211

MS GRAY: So would you agree with me that the non rostered overtime is paid separately, but into the loaded rate is built some compensation for employees working in addition to a 38 hour week?---We’ve always worked a 42 hour week on site and the annualised salary is based on 42 hour week.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN212

Mr McTaggart would you agree with me that your position has been in recent times that an appropriate comparable work value to your ESO or PSO officers at the TRU Energy Yallourn site would be to a CFA fire fighter as a base rate?---We put that position to both the Commission and the CFMEU in consultation, yes.

PN213

Would you agree with me that the base rate for a CFA fire fighter is currently $19.70 per hour?---That’s figure that we’ve looked at yes.

PN214

So in terms of the current base rate being claimed by the union of $19.60 that’s actually 10 cents an hour less, than what you say is a fair work value comparison for your workers to the CFA fire fighter?---We’ve put the CFA as a comparison and to try and move the negotiations forward because we weren’t – we were in a stage where we weren’t comparing apples with apples and we believe that does compare apples with apples. We haven’t got down to agreeing or disagreeing on that $19 whether it be over or under the claim. But what we’ve done is put that forward as a possible comparison.

PN215

Has the union met with the company when the meetings have been
scheduled?---Yes, on all occasions, I believe they have yes.

PN216

Has the union made it’s claims clear to the company, explained their claims?---I think as part of the entire discussion their claim has always been their claim.

PN217

But any questions you’ve asked about those claims have been answered by the union?---Over a period of time, yes.

PN218

Has the union given consideration to a respondent company claims?---They’ve given a reply to our claims, yes.

PN219

If you’ve sought further information about the reply to your claims has that been forthcoming?---Yes, it has.

PN220

Has the union withdrawn from agreed positions?---Yes, on one occasion they have.

PN221

What was that?---We had a meeting at Mount Waverley office and my understanding at the end of that meeting is that we had agreed on the grading structure and the dollars in that grading structure and within two weeks we had received the first notice of application for bargaining so they had withdrawn from that position and that was on the I think 9 March we had that meeting.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN222

That acceptance in your perception of the grading structure and the rates was that tied to any other provisions being sought?---No, that was the starting point and we were going to continue on from there, we had discussions around who would fit into that grading structure. We were to provide information about who we thought would fit into that structure after that meeting, which we did. Then we had the receipt of the first ballot notification.

PN223

THE COMMISSIONER: Can I just ask you when you say you were in an agreed position on the grading structure do you mean that the union at that point was refusing to engage with grading structure that you were proposing?---No, my understanding was that they had agreed to that structure, that grade four - - -

PN224

The four level structure?---The four levels and the dollars in that and our discussions were proceeding about who would fit into those levels what
names - - -

PN225

A translation in effect?---A translation, correct.

PN226

MS GRAY: Was there also involved in that classification structure
Mr McTaggart the necessity to provide training to employees?---That’s correct.

PN227

Was there agreement in principle to that training?---I think that was still under negotiation and discussion.

PN228

Was there discussions about the time required for training?---Yes, there was there was some discussion about it.

PN229

Was that agreed?---No, it wasn’t agreed.

PN230

Was it agreed by the company?---We had put a proposal forward about how long we thought that that would take to get people across the entire training process.

PN231

Was there any claim from the union in respect to training that would be paid training time?---Yes, that’s correct.

PN232

Did the company agree to that?---Well we said that the people we nominated to do the training we would pay their time and the training course for staff that nominated themselves to do the training we would pay for the training course but in their own time.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN233

Was there discussion about who’d be classified at the four levels?---We had some discussion about that but it was never agreed.

PN234

Then you say that the union made its application for a protected action ballot, did you then understand that to mean that the negotiations weren’t to be
ongoing?---We still continued to meet but I took the opinion that nothing had been accepted and we were back to square one.

PN235

So when you sought and the union agreed to conciliation, did you commence conciliation at square one, or did you commence it from the position that the parties had been immediately prior to the notification of the application for a protected action ballot?---At the conciliation with Commissioner Lewin we were trying to at those first meetings get some comparisons under the direction of the Commissioner and that’s where we started to try and establish a comparative base rates, so the other – we didn’t really concentrate on the other items. It was really about base rate and where was a good comparison and the four meetings that we’ve had with all the parties have been around rates and the comparison of rates.

PN236

When you suggested that the comparable work value level for a base rate would be the CFA fire fighter, have you made the offer to the union of a $19.70 base rate classification structure?---No, we haven’t.

PN237

Why is that?---At the last meeting with the Commission there was a few time outs in that meeting and the CFMEU came back to us – sorry let me fill it in – there was a few discussions about what were the actual rates. The CFMEU had a different set of rates to what we had for the CFA. There was discussions around that. The CFMEU left the meeting and came back and said they no longer wanted to have discussions and they tabled again their existing offer, their first offer.

PN238

So were you prepared at that stage to agree to the $19.70 CFA position rate?---I think we were looking for commonality between the parties whether that was an appropriate position to continue negotiating on.

PN239

Was there agreement on what constituted the loaded up rate, you know the?---No, there wasn’t.

PN240

THE COMMISSIONER: Do you mean the amount of the rate or?---Or what it was made up of?

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN241

What the constituent parts were?---No none of that discussed or agreed.

PN242

MS GRAY: So you were basically focusing on a base rate and then the appropriate base rate from which to commence discussions on the loaded up salary to be put into the classification structure?---That’s what we put forward was here’s a comparison where we think we’re comparing apples with apples what do you think the rates were – not agreed because the CFMEU had different rates to what we had.

PN243

Were the company’s rates higher or lower than the union’s rates that they had for the CFA fire fighter position?---They were lower.

PN244

THE COMMISSIONER: Unfortunately I’m going to have to adjourn for a short time, hopefully not too long, apparently the panel that I am a member of has apparently called a meeting at 4 o’clock, so hopefully that won’t go too long and we will resume at that time.

PN245

MS GRAY: Thank you Commissioner.

PN246

THE COMMISSIONER: We will adjourn for a short time.

<SHORT ADJOURNMENT [3.59PM]
<RESUMED [4.35PM]

PN247

THE COMMISSIONER: Thank you, sorry for that delay, yes Ms Gray?

PN248

MS GRAY: Thank you Commissioner.

PN249

Mr McTaggart, are you aware of comparable ESO rates at other La Trobe Valley power industry sites?---No, we’ve – no I don’t. We’ve had some – I have done some homework with other enterprise agreements that cover similar work. So that’s about the extent of it.

PN250

When you did that homework with other enterprise agreements that covered similar work would you agree that the union’s claim for the fully loaded rate was in the same ball park?---It looked very similar to an existing agreement that the CFMEU has.

**** GRAHAM WILLIAM MCTAGGART XXN MS GRAY
PN251

Following on from the evidence you’ve given in cross-examination do you still assert that the wages claims of the union are unrealistic?---Yes, I do.

PN252

I put it to you that they are not unrealistic Mr McTaggart, when they are comparable to what is paid by – for comparable work in the same geographical area and when the base rate is in fact ten cents an hour less than what you say is a comparable work value classification of a CFA fire fighter?---That’s your position, yes, I disagree.

PN253

Okay, thank you Mr McTaggart.

PN254

THE COMMISSIONER: Mr Eichenbaum?

PN255

MR EICHENBAUM: Yes, Commissioner, only one issue I want to address in re-examination.

<RE-EXAMINATION BY MR EICHENBAUM [4.37PM]

PN256

MR EICHENBAUM: Mr McTaggart, can you turn to exhibit A to your witness statement?---Yes.

PN257

Can you see under item (1) rates of pay there is a reference to four different time lines? There is the June 2007 time line, what’s the source of those entries? Where did the information come from?---From the union – you’re talking about the hourly rates?

PN258

Yes?---From the union claim.

PN259

Why do you say that that’s the union’s position in June 2007?---No. That was the documentation we have received attached to Mr Van Der Meulen’s witness statement – no sorry June – that was our last meeting, sorry, that was our last meeting with the Commission those rates were tabled, I apologise for that.

PN260

So how would you describe the June 2007 rates and structure as compared with to the September 2006 claim and structure?---The rates are the same, they haven’t altered. The structure has, included the four steps that we have proposed.

PN261

Sorry?---The rates are exactly the same as the September 2006.

PN262

The June 2007 rates that you show there how many different rates are there?
---There’s three rates.

**** GRAHAM WILLIAM MCTAGGART RXN MR EICHENBAUM
PN263

There’s three?---Three.

PN264

How do they compare with the September 2006 structure?---They are marginally different. They are the same for the team leader and the PSO and they’re marginally different for the security officer.

PN265

Thank you, that’s all that I have.

PN266

THE COMMISSIONER: Thank you Mr McTaggart you can resume your seat.

<THE WITNESS WITHDREW [4.39PM]

PN267

THE COMMISSIONER: Ms Gray?

PN268

MS GRAY: Thank you, Commissioner. Commissioner the CFMEU makes application for an order that a protected action ballot take place. The application is made pursuant to section 451 of the Act. The application seeks orders from the Commission that a postal ballot be held of relevant employees of Programmed Maintenance Services Limited, which I will refer to as PMS to determine whether proposed industrial action has the support of those employees. The CFMEU has standing to bring the application under section 451 having initiated a bargaining period under section 423 of the Act for the purposes of negotiating a collective agreement with PMS.

PN269

A copy of the notice to initiate a bargaining period is attachment (a) to the application. The notice was served on 22 November 2006 in accordance with section 427, the bargaining period commenced at midnight on 29 November 2006. The registry has designated the bargaining period as file BP2006/3775. The application is made under part 9 of division 4 of the Act. The object of the division is set out in section 449 as follows:

PN270

Object – the object of this division is to establish a transfer of process which allows employees directly concerned to choose by means of a fair and democratic secret ballot whether to authorise industrial action supporting or advancing claims by organizations of employees or by employees.

PN271

The explanatory memorandum to the bill which introduced these provisions, the Workplace Relations Amendment (Work Choices) Bill 2005 deals with this object at item 1393 in the following terms:

PN272

This section would establish that the object of the new division is to provide employees with access to a process of fair and democratic secret ballots to determine whether protected industrial action should be taken. The provisions are designed to be facilitative (that is to provide the means for accessing protected action) not prohibitive (that is to outline the circumstances in which such action is not available).

PN273

The CFMEU has served copies of two draft orders sought in this application by facsimile on PMS and the Commission. I have referred earlier to possible need to amend those orders Commissioner, but and also that may be necessary in terms of the timeframe being sought by the union which depends on when an order if granted is made by the Commission as currently constituted. The substantive ballot order draft order, we say complies with section 463 in that it names the applicant as the Construction, Forestry and Mining and Energy Union. It identifies the type of employees to be balloted, now that that amendment has been accepted to the application and that the ballot is to be a postal ballot conducted by the Australian Electoral Commission by way of declaration voting.

PN274

It sets a time table for the conduct of the ballot and sets a day and time on which the ballot is to close. The union does not seek the appointment of an independent advisor so none is named. It sets out the two questions to be put to the relevant employees in the ballot and those questions include the nature of the proposed industrial action. The timetable sought for the ballot is based upon discussions held between the union and officers of the Australian Electoral Commission and presumes that if a ballot order is issued, it is done by 4 pm tomorrow. The union also seeks an order in the form described in paragraph (b) of subsection (1) of section 465 that PMS and the union provide appropriate lists in respect to the Australian Electoral Commission in electronic form.

PN275

The union also seeks a separate order under section 466 that the Australian Electoral Commission compile the roll of voters for the ballot. Before the application can be granted there are a number of matters stipulated in subsection (1) of section 461 of which the Commission must be satisfied. They are:

PN276

(a) that the union has during the bargaining period genuinely tried to reach agreement with PMS.

PN277

In this regard the union relies upon the evidence of Mr Van Der Meulen in his witness statement which has become exhibit A1 and we also rely upon the evidence under cross-examination of Mr McTaggart, where Mr McTaggart agreed with the union that – agreed with me that the union had met with the company every time meetings were scheduled. It had explained it’s claims it considered and responded to company claims and it has not withdrawn from agreed positions, except in one instance in the view of Mr McTaggart. The union continues to genuinely seek agreement.

PN278

In this regard the union also relies on the evidence of Mr Van Der Meulen and on it’s conduct, both in private negotiations and in the conciliation conducted with the assistance of the Commission as currently constituted. We also say that the applicant has not engaged in pattern bargaining and again rely on Mr Van Der Meulen’s evidence to establish this fact. Commissioner, the jurisprudence made on applications made under section 451 of the Act is relatively new and developing. However three matters associated with applications for protected action ballots have come to dominate the consideration of the Commission.

PN279

These are, the specificity or the intelligibility of questions to be put, whether an applicant has or continues to genuinely pursue an agreement and related to this whether the applicant has or continues to pursue prohibitive content in the course of bargaining with an employer. I note Commissioner in the outline of submissions from Mr Eichenbaum that there is an assertion that the union has been and continues to pursue prohibitive content. I think it is probably best if I address that after hearing from Mr Eichenbaum on that point in my reply. Commissioner the leading decision we say on the specificity of ballot questions is a Full Bench decision in the United Fire Fighters Union of Australia and Country Fire Authority which is print 973841.

PN280

In that matter a decision of Commissioner Foggo at first instance ordering the conduct of a protected action ballot was overturned on appeal. One of the two main grounds for granting the appeal related to the wording of paragraph 5 of the schedule – I’m sorry I retract that – one the two main grounds for granting the appeal related to the wording of paragraph 5 of the schedule of proposed industrial action. The paragraph proposed a form of unspecified industrial action in response to action that the employer might take in response to other specified protected action by employees.

PN281

The Full Bench found at paragraph 29 of the decision that the description of the proposed action, was “vague and meaningless” and therefore did not meet the requirements of section 452, subsection (1) paragraph (a). However, it is apparent from another decision of the Commission that the CFA case turned on the specific facts of the matter and should not be interpreted as representing a general restriction on the breadth or generality of ballot questions that may legitimately be put to employees. In National Union of Workers and Blue Circle Transport Pty Ltd which is print 973654 his Honour Vice President Watson who was also the presiding member in the CFA case, held that a ballot question authorising an indefinite strike was sufficiently intelligible to provide voters with a:

PN282

Clear and readily understood choice such that the ballot will provide clear authorisation or rejection of a proposed course of action.

PN283

That is at paragraph 40. The decision was made in the face of the employers counsel arguing that the term, indefinite strike, was of an uncertain nature. Similarly in the AMWU and Amcor Packaging Pty Ltd which is print 9723236 Commissioner Gay determined that an omnibus question proposed by the applicant that included a number of different forms of action, including rolling stoppages and overtime and call back bans, were sufficient to meet the purposes of section 452 subsection (1) paragraph (a). In adopting this view Commissioner Gay at paragraph 36 referred to the fact that the question adopted, “ordinary industrial English” that disclosed the nature, meaning and scope of the proposed industrial action.

PN284

The applicant submits that the test of specificity is met in relation to the questions proposed in the draft order. The questions are clear and intelligible. They are couched in ordinary industrial English. They cannot be construed as vague or meaningless. They do provide relevant employees with a clear and readily understood choice. The CFMEU relies on the evidence of Mr Van Der Meulen as to the genuine efforts of the union to reach agreement with PMS. However, it is important to have regard to recent authority in the tests in section 461A and section 461B.

PN285

It should be noted that the Commission has dispensed with employer submissions to the effect that negotiations must have reached an impasse or have been exhausted before it can be said that the applicant is entitled to be regarded as having met the tests in sections 461A and 461B. In AMWU and Amcor Packaging Pty Ltd Commissioner Gay stated at paragraph 48 that it was important for the Commission to:

PN286

Resist the position contended by Amcor which would require industrial parties such as these who are beyond the threshold stage of their negotiations and are genuinely trying to reach agreement to have reached a particular stage of advancement in their efforts at agreement making or to have arrived at a state of impasse as a condition precedent for a finding permitting a protected action ballot. To apply such strictures would be to apply a different more onerous test than that of the Act.

PN287

Similarly in AMWU and CEPU and BP Refinery (Bulwer Island) Pty Ltd which is print 973642 Commissioner Bacon dealt with a similar submission in the following way at paragraph 37:

PN288

BP advances a proposition that the test of whether a party is or was genuinely trying to reach agreement or to take into account whether the negotiations are exhausted before a ballot order is made. That proposition is rejected. The Parliament did not include such a test in the Act and to refuse a ballot order for reasons other than those contained in section 461 would be an error as the section compels the Commission to make the order in the event that the statutory tests are met.

PN289

An examination of decisions where the Commission has found that a union has not or is not genuinely trying to reach agreement are illustrative of general statements not yet tested that may assist depending on the circumstances of a particular case. But we refer briefly to CSBP Limited and the Liquor Hospitality and Miscellaneous Workers Union which is print 977308 were Deputy President McCarthy found that the union had not been genuinely trying to reach agreement and the outline in that case of the numerous instances where the union resiled from positions agreed in principle, and repeatedly added claims after identifying the only matter still in contention to the parties, demonstrates that the extent of movement of the goal posts – demonstrates the extent of movement of the goal posts regarded as grounding such a finding by that member of the Commission.

PN290

Senior Deputy President McCarthy stated at paragraph 75:

PN291

It is also unlikely that a single isolated incident could establish that an organization was not genuinely trying. Rather the conduct needs to be considered by examining all aspects of the parties bargaining conduct as a whole. Inferences might then be drawn based on an established pattern of behaviour.

PN292

The concept of fanciful claims was referred to by Commissioner Eames in the AMWU CEPU and VisyPak Operations Pty Ltd which is print 974415 where the Commissioner held that the union’s initial claim of 20 per cent wage increase per annum reduced to 10 per cent per annum after six months negotiation was unrealistic and demonstrative of the unions not genuinely trying to reach agreement. The Commissioner stated in paragraphs 32, 36 and 37 that there was no evidence on the point that the unions had genuinely tried to reach agreement. That aside from the fanciful wages claims there was no evidence that there had been real negotiation on the other conditions, elements of the VisyPak’s EBA offer. The Commissioner also at paragraph 43 criticised the CEPU in procedural aspects of attendance and communication during negotiations.

PN293

However the question of whether the parties reaching entrenched positions on key issues was demonstrative of a union not genuinely trying to reach agreement was addressed by his Honour Vice President Lawler in the CFMEU and Thiess Pty Ltd which is PR974390. The Vice President said in paragraph 27:

PN294

A party can be genuinely trying to reach agreement in protracted negotiations but come to a point where it conscientiously concludes that it should make no further concessions on key issues in the negotiations. To hold otherwise would be tantamount to converting the obligation to genuinely trying to reach agreement into an obligation to reach an agreement.

PN295

After reviewing the authorities in CFMEU and Ulan Coal Mines Limited in print 974347, his Honour Vice President Lawler concluded at paragraph 13 that:

PN296

The issue of ether a union has genuinely tried and is genuinely trying to reach an agreement under the Act within the meaning of section 461 subsection (1) paragraph (a) and (b) is a question of fact to be determined by reference to all the circumstances of a particular case.

PN297

On the issue of prohibitive content the decision of the Full Bench in the CFA stands for the proposition that the pursuit of claims which involve prohibitive content at the same time as seeking a workplace agreement, whether the prohibitive content forms part of the proposed agreement or otherwise strongly suggests that the union is not genuinely trying to reach a workplace agreement which complies with the requirements of the Act. That is said at paragraph 38. However it appears that both the CFA case and the decision of Vice President Watson in National Union of Workers and Blue Circle Transport Pty Ltd stand for the proposition that an earlier pursuit of prohibitive content in a workplace bargaining context, is not necessarily fatal to an application under section 451 of the Act.

PN298

In Blue Circle Transport his Honour Vice President Watson stated:

PN299

In my view it is possible to be satisfied that an applicant genuinely tried to reach agreement during the bargaining period even though at some point in time claims of prohibitive content are made. It must be necessary however to be satisfied that for an important period of the bargaining period the applicant genuinely tried to reach agreement by pursuing claims which did not include prohibitive content.

PN300

That was at paragraph 23. Similarly the CFA case – sorry similarly in the CFA case there is implicit acceptance by the Full Bench at paragraph 38 that had there been, “reliable evidence” put by the UFUA that it no longer pursued prohibitive content then the appeal might not have succeeded on this point. In the present matter the evidence of Mr Van Der Meulen deals with the issue at paragraphs 10 and 12 of his witness statement and in the letter from the union’s general president annexed as attachment (1) to the statement, we say puts beyond doubt that the union has not knowingly and has then no longer pursued prohibitive content with PMS for an important period leading up to the making of the present application for a protected ballot order.

PN301

We also note that in Tyco Australia trading as Wormald in print 974317 the Full Bench stated in paragraph 20 that it was not always easy to determine if a claim was prohibitive content if it ultimately was concluded that a claim was so, it did not necessarily mean a union that advanced it had not been genuinely trying to reach agreement. The Full Bench stated that:

PN302

In view of the possible consequences a union may be prudent to make it clear that it wasn’t pursuing prohibitive content.

PN303

We say that that is what the union has done in this case Commissioner. Commissioner in terms of the assertion that the union’s claims are unrealistic or fanciful, we say that the evidence of Mr McTaggart has demonstrated that the union has moved on numerous issues and has done so within ball park figures which are representative of what comparable Workplace agreements are providing for employees in the La Trobe Valley performing similar work for contractors and in fact, that the comparable work value classification that the company has put forward as appropriate, is a base rate of $19.70 which itself is 10 cents higher than the union’s most recent claim for base rate of $19.60.

PN304

We’ve heard Commissioner that the rates demonstrated in exhibit A are loaded up rates. Mr McTaggart has said that those loaded up rates include – sorry exclude payment for overtime. But overtime is only payable in excess of 42 hours per week. The union’s claim for a 36 hour week has been revised in the negotiations to a 42 hour week, reflective of current practices which we say of course is not at all reflective of community standards of at least a 38 hour week of ordinary rates of pay. Nonetheless the union has moved beyond that – or below the community standard of 42 – of 38 hours of ordinary pay to 42 during the negotiations. Mr McTaggart was not able to clearly identify the base rates from which he calculated the percentages asserted in his witness statement as reflecting - - -

PN305

THE COMMISSIONER: I’m assuming that those percentages have been calculated on the loaded rate.

PN306

MS GRAY: On the loaded rate, I think that might be the case Commissioner, and certainly we would say that if that is the case, then that’s not what’s said in paragraph 9, but that assumption can certainly be made from the evidence of Mr McTaggart as explained under cross-examination. The union is not required we submit Commissioner to reach agreement in order to be genuinely trying to reach agreement. It does not need to we submit, make enormous concessions when its’ claims are fair and reasonable.

PN307

In that regard we say that the concessions which have clearly been demonstrated by Mr Van Der Meulen and Mr McTaggart as having been made by the union demonstrate a preparedness to consider and respond to the claims of the company and fall far short of what is developing jurisprudence on the issue of whether or not claims are unrealistic and therefore unlikely to result in the making of an agreement.

PN308

Mr Commissioner, I would leave my submissions on the issue of pre-reform AWAs being in existence by - sorry, I think perhaps it's easiest if I go to my submissions and then deal with anything else in reply that comes from Mr Eichenbaum.

PN309

The company also alleges that the union is not genuinely trying to reach agreement and has not genuinely been trying to reach agreement because of the transitional provisions of Work Choices which specify in schedule 7 that AWAs which have not been - I'm sorry, that a workplace agreement cannot operate until a pre-reform AWA has been terminated.

PN310

Mr Commissioner, schedule 7 to the Workplace Relations Act deals with transitional arrangements for existing pre-reform federal industrial instruments, essentially specifying the provisions of the pre-reform Act that continue to regulate such instruments, the interaction of such instruments with other industrial instruments and the operation of Work Choices amendments to the instruments.

PN311

Relevantly to these proceedings the Work Choices amendments to the Act which apply to both pre-reform certified agreements and pre-reform AWAs as if they were post-reform industrial instruments are section 494, which prohibits the taking of industrial action before the nominal expiry date has passed, and
section 451(2) which prohibits the making of an application for a ballot order before the nominal expiry date of the existing collective agreement.

PN312

We note that both of these provisions are prohibitive, not facilitative and that distinct from pre-reform provisions which provided for individual or collective AWAs as well as union and non-union collective agreements, the new provisions relevantly provide in section 326 for only individual AWAs as well as in
section 327, employee collective agreements and union collective agreements in section 328.

PN313

The schedule of transitional provisions do not distinguish between individual or collective pre-reform AWAs at all and relevantly do not do so when deeming them to be treated for the purpose of sections 494 and 451(2) as post-reform AWAs. The explanatory memorandum to Work Choices also draws no distinction between pre-reform collective and individual AWAs in reference to the transitional arrangements now numbered schedule 7.

PN314

Specifically item 3335 of the explanatory memorandum says - - -

PN315

THE COMMISSIONER: Sorry, can you say that again.

PN316

MS GRAY: I have a copy of the relevant parts of the explanatory memorandum. Would it assist the Commission if I handed that up?

PN317

THE COMMISSIONER: Yes. Yes, please proceed.

PN318

MS GRAY: Item 3335 states that:

PN319

The proposed clause 20 would provide that certain provisions under the Act, as it applied after the reform commencement, would apply in relation to pre-reform AWAs as if they are post-reform AWAs under the Act. These provisions would apply -

PN320

and the second and third dot points are the relevant ones, Mr Commissioner. The second dot point refers to what was to be section 110 which would prevent parties to a pre-reform AWA, which has not passed its nominal expiry date from taking protected industrial action, and what was to be, before the renumbering
section 109B(2) which would prohibit parties to a pre-reform AWA from applying for a secret ballot for protected industrial action until after the nominal expiry date of the agreement.

PN321

It is appropriate then to state that the effect of item 20 of schedule 7 is that employees on pre-reform AWAs are prohibited under Work Choices amendments to take industrial action or be subject of an application for a ballot order before their nominal expiry date as if their pre-reform AWAs were post-reform AWAs.

PN322

THE COMMISSIONER: We are here dealing with pre-reform AWAs, as I understand.

PN323

MS GRAY: The AWAs applying to the relevant employees at PMS have common nominal expiry dates which are all past and were 6 November 2006 and that's in the evidence of Mr Van Den Meulen.

PN324

Clause 19 of schedule 7 provides that the specified post-reform industrial instruments, including a collective agreement that would otherwise operate to regulate the employee's employment are of no effect while a pre-reform AWA operates in relation to that employee. The explanatory memorandum to Work Choices in items 3334, which is also in the extract that I have handed up, is that this would ensure that an employee's employment is only ever governed by one agreement and that is the intention, Mr Commissioner.

PN325

Clause 18 of schedule 7 specifies how a pre-reform AWA ceases to operate and this is either upon the making of a post-reform AWA where it ceases to operate automatically or if it is terminated under the preserved provisions of what was section 170VM of the pre-reform Act, further, that once it ceases operating it can never operate again in respect to that employee.

PN326

Mr Commissioner, we say there is no prohibition in the Act to the union initiating a bargaining period in support of a collective workplace agreement or to seek a protected action ballot or to authorise or organise protected action whilst a pre-reform AWA past its nominal expiry date is in operation.

PN327

In the circumstances of our members, the relevant employees at PMS we submit that the course followed by their union of having the pre-reform AWAs continue to operate until a collective workplace agreement is reached with PMS and then to coordinate termination of the AWAs with the operation of the collective workplace agreement so that the employees' existing terms and conditions are protected until a replacement agreement operates, is simply a prudent and practical course in the circumstances. It in no way undermines the evidence of the union that it is genuinely trying and has genuinely been trying to reach agreement for a union collective agreement with PMS.

PN328

The logical conclusion of the company's argument on this point is that employees on pre-reform AWAs could never initiate or have a union initiate on their behalf a bargaining period while their industrial instruments were current. If this was the intention of the Act it would have been an easy matter for parliament to expressly state so in the Work Choices amendments, rather than allow it to be an inference from an interpretation of clause 19 of schedule 7, particularly when the schedule in clause 20 specifies prohibition to the taking of protected industrial action or from applying for a secret ballot for protected action for employees on pre-reform AWAs before the passing of their nominal expiry dates as if they were post-reform AWAs.

PN329

Where the Act expressly deals with exclusions, others are highly unlikely to arise by implication and in this respect the Full Bench in Heinemann Electric Pty Ltd v CEPU in print 974265 stated in paragraph 18:

PN330

The matter is put beyond doubt, however, by the fact that there is an entire subdivision of division 3 of protected action ...(reads)... intention would be required than those relied by the appellant.

PN331

The union accepts, Mr Commissioner, that while the pre-reform AWAs of the relevant employees operate, a union collective agreement cannot and would move either by agreement with PMS or by order of the Australian Industrial Relations Commission under the old section 170VM to have the pre-reform AWAs terminated once the union collective workplace agreement, which we have and will continue to genuinely try to negotiate, is reached so that those employees' terms and conditions of employment do not have to rely upon the Australian Fair Pay and Conditions Standard as their basis for a common law contract of employment. May it please the Commission.

PN332

THE COMMISSIONER: Thank you. Mr Eichenbaum.

PN333

MR EICHENBAUM: Programmed Maintenance Services Limited opposes the application of the union on a number of bases and, Commissioner, may I assume that you have had the opportunity to read the outline of submissions.

PN334

THE COMMISSIONER: I have. I must say it's been interrupted on each occasion that I've attempted to read it thoroughly. I'll try it again.

PN335

MR EICHENBAUM: Commissioner, there are five grounds on which the application is opposed, firstly in relation to the detail of the nature of the proposed industrial action; secondly in relation to the details of the types of employees that are to be balloted and although some of our submissions in that regard have been answered by the amendment to the application, others still remain. We say that the union has not been genuinely trying to reach agreement with the company on three different grounds, firstly, a follow-on from the issue that Ms Gray last addressed which was the question of the effect of any agreement whilst the pre-reform AWAs continue to operate; secondly, the prohibited content that we say is still sought by the union and thirdly, that we say the wage claim being advanced is fanciful.

PN336

In light of those things we say that in addition to not granting the application the Commission should grant our application that the bargaining period be suspended and Commissioner, I should emphasise that our application seeks only a suspension and not a termination; that the bargaining period be suspended because the union has not been and, in our submission, is not genuinely trying to reach agreement and secondly, the issues of personal safety or health or welfare of the population or a part of it.

PN337

To take each of those grounds in turn, Commissioner, dealing with the question firstly of the nature of the industrial action, the question that is to be put to the employees addresses itself only to stop work meetings and bans on overtime. Mr Van Den Meulen in his own evidence, which, Commissioner, we accept, states that the nature of the work conducted by the members is such - and these are not precisely his words, I am interpolating or changing the order a little - that the nature of the work they perform is such that if it wasn't performed there would be a genuine and imminent risk to the health and safety of workers at the TRU Energy Yallourn site. Commissioner, I say that is the import of the part of the witness statement that is extracted in the submissions there.

PN338

As a consequence of that the conclusion that Mr Van Den Meulen has reached and has put in his witness statement is that the members will remain in readiness to respond to emergencies. That's what has been put in his witness statement, it's not been modified in any way at all in his oral evidence today. However, the questions that are to be put to the employees contain no such qualification. There is nothing about those questions that says to the employees, "We don't mean this to mean that you actually leave the site altogether if there is a stop work meeting or there is need for overtime." It doesn't say, "You should hold yourself ready," it makes no such qualification to the question at all.

PN339

Commissioner, in those circumstances there is a mismatch between the evidence of Mr Van Den Meulen as to the nature of the industrial action that is proposed to be taken and the questions that are to be put to the employees. At paragraph 31 of the CFA case that Ms Gray referred to and a copy of it was handed up with our submissions, the Full Bench said, and Commissioner, I submit that this is a statement of general principle, contrary to the assertions of Ms Gray that that case stands for the proposition, or the subsequent jurisprudence stands for the proposition that each of the matters should be considered on their own. Commissioner, I say that paragraph 31 is a statement of general principle and it says that:

PN340

In determining whether to engage in protected action, it is reasonable to expect -

PN341

and then the Full Bench goes on to say:

PN342

and in our view a requirement of the Act -

PN343

which I say makes it a statement of general principle -

PN344

that the nature of the proposed industrial action is specified. In our view this requires the employees who will be voting ...(reads)... implications for them while at work and other relevant circumstances.

PN345

Commissioner, we say that the questions that are to be put to the employees do not allow them to understand that that is so if what is actually being put is the position that is set out in Mr Van Den Meulen's witness statement. The employees cannot, without some other explanation, understand the question. They are being asked a question unlimited.

PN346

THE COMMISSIONER: The question is understandable. Whether or not it's Mr Van Den Meulen's intention is another question, isn't it? I know they're two different considerations, one is the evidence given by Mr Van Den Meulen and his intention, but the question surely is the test - or the test is the text of the questions which are put and whether they have sufficient clarity so that the employees would understand if they answer in the affirmative what is to be done, what is not to be done.

PN347

MR EICHENBAUM: Yes, Commissioner. We say that in the present circumstances, although the words may be clear, the circumstances are such that the employees cannot know that because that's what's being - - -

PN348

THE COMMISSIONER: Maybe they don't know what Mr Van Den Meulen is thinking but that's not the issue, is it? It doesn't say in the Act that the employees have to be able to understand what Mr Van Den Meulen is thinking or has said to the Commission. What they have to understand is what's written in the question.

PN349

MR EICHENBAUM: Yes, Commissioner, I accept that but in my submission they have to also understand the import of the question. The import of the question we say is - - -

PN350

THE COMMISSIONER: The import of the question is that they won't be required to perform overtime. Isn't that right? The non-rostered overtime, that is.

PN351

MR EICHENBAUM: Yes, Commissioner.

PN352

THE COMMISSIONER: And that they may be involved in stop work meetings of a particular duration of an indefinite number.

PN353

MR EICHENBAUM: Yes.

PN354

THE COMMISSIONER: That's the question. What Mr Van Den Meulen says about what's likely to happen as a result is not something that goes to the clarity of the way that the questions are formulated in the proposed order. The issue in CFA was, you know, all the mumbo-jumbo that was written down on the piece of paper by the United Firefighters in some sort of phantasmagorical imagination of potential reactions on the part of the authority, wasn't it?

PN355

MR EICHENBAUM: Yes, Commissioner. I'm not for a moment suggesting that this question is anything like what the Full Bench considered in that case.

PN356

THE COMMISSIONER: Would have to consider, yes.

PN357

MR EICHENBAUM: Commissioner, I'll move on then. There are issues, we say, about the employees to be balloted and given the amendment that's been made to the application, I would suggest that it's probably likely that paragraphs 8 through to 13 of the outline of submissions may no longer be necessary. However, we do say that there is a difficulty with establishing the role of voters and that difficulty arises from the existence of the unterminated Australian workplace agreements.

PN358

THE COMMISSIONER: What is the nature of that difficulty?

PN359

MR EICHENBAUM: The definition of relevant employees in section 450 of the Act, Commissioner, is in relation to proposed industrial action against an employer in respect of a proposed collective agreement means if an organisation of employees is a negotiating party to the agreement, any member of the organisation who is employed by the employer and whose employment will be subject to the agreement.

PN360

Commissioner, in AMWU v Mayfield Engineering, which is PR974707 at paragraph - - -

PN361

THE COMMISSIONER: Did you attach that?

PN362

MR EICHENBAUM: Yes, I did, Commissioner. At paragraph 31, it's a decision of Acton SDP, her Honour was at that point in her decision dealing with the question of whether the role of employees could include a narrower group than originally defined in the bargaining period notice but she said, in respect of the use of the term "relevant employees" in section 451 that the time at which the application for the protected action ballot order is made is the time when relevant employees are to be identified and determined.

PN363

THE COMMISSIONER: This is in this paragraph 31.

PN364

MR EICHENBAUM: Yes. Her Honour has said:

PN365

Those employees who are both members of the organisation and whose employment will be subject to the collective agreement that the union is proposing at the time it makes the application.

PN366

Not at some hypothetical time in the future when an application - - -

PN367

THE COMMISSIONER: It does revolve on grammar. It ..... to how you apply the words. They're capable of - that clause at the time it makes the application seems to be capable of carrying more than one meaning.

PN368

MR EICHENBAUM: Yes, Commissioner, but the question of the interaction between that and the definition in section 450, where it says employees whose employment will be subject to the agreement, I say is, will be subject to the agreement at the time that it is made and lodged, not subject to the agreement at some distant time in the future.

PN369

THE COMMISSIONER: What if the union said to an employer, "Look, we're negotiating in this situation where we know your workforce is currently covered by AWAs, but it's our intention that they covered in due course by the terms of this agreement we're attempting to reach with you. When they terminate those agreements, they're beyond their expiry date so they can transfer over from that instrument to this instrument. That's our intention." Would those employees be prohibited from taking industrial action under those circumstances?

PN370

MR EICHENBAUM: Commissioner, it's my submission that the actual words of the Act and the scheme of the Act now provide that indeed they are prevented, that they must in effect be put to their election. They must make the choice as to whether to terminate their - or seek to terminate their pre-reform Australian workplace agreements before entering into the action.

PN371

THE COMMISSIONER: What do you draw that from, apart from your interpretation of the meaning of what the Senior Deputy President has said in that decision?

PN372

MR EICHENBAUM: Firstly, the words in schedule 7 of the Act, which make it clear at item 19, that a collective agreement cannot have effect.

PN373

THE COMMISSIONER: They would have to revert to the Australian Fair Pay and Conditions Standard before they could be covered by a collective agreement.

PN374

MR EICHENBAUM: Commissioner, I'm not sure that that actually is the effect because there are a number of provisions of the former Act that have been preserved and the effect of what happens when an Australian workplace agreement, a pre-reform AWA is terminated, and Commissioner I don't have the matters immediately before me - - -

PN375

THE COMMISSIONER: What's your view as to what happens if an employee is covered by an AWA in a situation where they want to participate in a bargaining period? Do they have to terminate the AWA in order to be subject to the bargaining period? What you're really saying is that the bargaining period is not in place in relation to these employees, is it not?

PN376

MR EICHENBAUM: What I'm saying is that during the bargaining period it's only those employees who are not parties to an Australian workplace agreement who are relevant employees, therefore can be balloted, therefore can participate in the action.

PN377

THE COMMISSIONER: What is they were to terminate their AWAs, what do you say is the consequence of that for their employment under the Act?

PN378

MR EICHENBAUM: Commissioner, subject to checking, my understanding would have been that it being a pre-reform agreement, their employment would have fallen back to the award that existed at the time rather than the Fair Pay and Conditions Standard.

PN379

THE COMMISSIONER: If any such award does exist in relation to these employees.

PN380

MR EICHENBAUM: Yes, Commissioner. The company has certainly taken the view all along that in the time that it has been the employer of these people, that the Security Employees Common Rule Award has been the appropriate award and the one that would have applied, given that that is a substantial part of the duties.

PN381

THE COMMISSIONER: That may be a nice question, given that it seems that there are classifications of work that may not fall within the scope of that award contemplated currently in operation. I understand what you're saying. It's not an Australian Fair Pay and Conditions Standard on your reading of the Act, subject to checking the predecessor award.

PN382

MR EICHENBAUM: Yes. Commissioner, we say that that question, that it is essential in terms of what the company does in response to an order from the Commission, it is essential in fact that that question be resolved as to who are the relevant employees within the meaning of the Act and we put the view that the order, as presently drafted - we accept that it's drafted in accordance with the requirements of the Act but it doesn't address itself to that question of who are the relevant employees in these very particular circumstances. We say in those circumstances the order ought not be made.

PN383

Commissioner, we go on from there to say that in circumstances in which this issue about the effect of schedule 7 and the pre-reform AWAs exists and no application has been made to terminate the employment, and I accept that this is not a matter on which evidence was led but subject to whether Ms Gray chooses to refute what I'm about to say, the union has been aware of this question about the effect of schedule 7 since the time that the first application for a protected action ballot order was made. The union has continued to seek to negotiate without addressing that question and we say in those circumstances where, on the evidence of Mr McTaggart, at the very least, the vast majority of the employees who are now subject to the amended application, fall into that basket.

PN384

If we are right in saying that there are no or almost no relevant employees within the meaning then, we are going nowhere until such time as the AWAs have been terminated and Commissioner, I accept that as part of negotiations one of those terms might be the termination of the AWAs, but on my instructions that has never been put in the negotiations, not at any time. The parties have agreed that you should proceed on the basis of the proceedings under section 704 and I'm instructed that the issue wasn't raised in those proceedings. We say that in that sense, the union has not been genuinely trying to reach agreement to resolve the overall dispute.

PN385

Commissioner, if I may move onto the question of prohibited content, and this is a point I think relatively shortly made despite Ms Gray's submissions. Ms Gray relies on paragraphs 10 and 12 of Mr Van Den Meulen's witness statement and the attachment to his witness statement to say that the union is not seeking anything to do with prohibited content. Commissioner, the letter which is attachment 1 is 8 March 2007, the document which is attachment 2 is 16 March 2007, therefore, anything that is in attachment 2 is in fact after the assertion that the union is not longer seeking prohibited content. We say that anything that is in attachment 2 that is prohibited content, supports the view that the union is still pursuing that same thing.

PN386

We've identified two matters that we say are prohibited content. They are in clause 7.6 of attachment 2, Commissioner, where the union document states that the introduction of new and additional technology will be introduced after consultation and agreement of the parties and - - -

PN387

THE COMMISSIONER: What clause is it?

PN388

MR EICHENBAUM: 7.6, which is at the bottom of page 6 of attachment 2, Commissioner. If I could take you to the parties bound, which is on page 3 of that attachment, it identifies the union as a party to the agreement, which is what you would expect in a union collective agreement. We would also say that step 3 of the dispute resolution procedure in clause 17, which appears on page 24 of attachment 2, states that if the matter remains unresolved it will be referred for discussion between the appropriate union district official.

PN389

Commissioner, we say that those words in those two clauses are prohibited content in the sense that is set out in regulation 8.5(1)(f) of chapter 2 of the Workplace Relations Regulations where a matter is prohibited if it deals with the rights of an organisation of employees to participate in or represent an employee bound by the agreement in whole or part of the disputes settling procedure.

PN390

We say that that is expressly so in the way in which step 3 of clause 17 is written. We also say that the fact that clause 7.6 requires agreement of the parties, one of the parties being the union, means that the union has a right to be represented in the settlement of any dispute about the introduction of new or additional technology. We're happy to rely on the authorities that Ms Gray has referred to when dealing with the question of prohibited content.

PN391

Commissioner, much was made before you in the cross-examination of
Mr McTaggart and the submissions of Ms Gray about whether the claims of the union were realistic or fanciful and whether or not there have been concessions made. The issue of whether or not concessions were made - and much of Ms Gray's submissions were directed in my view to the question of whether we were putting a submission that the union was bargaining in good faith. That is not our submission on this point. We accept that the authorities are such that genuinely trying to reach agreement does not mean actually reaching agreement and we have no quarrel of any sort with much of what Ms Gray had to say on the matters that, if I could use that expression, fall under the rubric of bargaining in good faith.

PN392

Commissioner, our point is simply this, the union in its most recent position has reverted to its original claim on wages and structure. So much is clear from
exhibit A attached to Mr McTaggart's witness statement in terms of the June '07 position. We say that to the extent that there is a small change in relation to one employee, that is not a substantial concession. In Mr McTaggart's witness statement we have Mr McTaggart's evidence of the size of the wage increases, the dimension of them and for our part we refer the Commission to the decision of Commissioner Eames in AMWU v VisyPak which is in PR974415, a copy of which is included with our materials.

PN393

THE COMMISSIONER: What does fanciful actually mean in this context?
It's not footnoted this way but it seems to be have its provenance in that CPSU case that went before the High Court which is about what can constitute an industrial dispute.

PN394

MR EICHENBAUM: I wondered about that, Commissioner, but sadly Commissioner Eames hasn't - - -

PN395

THE COMMISSIONER: Fanciful tends to be a claim, and in particular in the context of the CPSU case, I think the claim was that there was some general or provisional wage increase into the future, as some sort of ongoing demand that wasn't located in time, it wasn't quantified as a certain increase in wages - or that was quantified but then there was this additional rider which I think was given a sort of post modern characterisation by one of the justices of the court, some endless deferral of an indefinite wage claim. I think they're the facts.

PN396

MR EICHENBAUM: Commissioner, I may be thinking of a difference case then, but my recollection is that it arose in the circumstances of a log of claims for the foundation of an industrial dispute where the ambit of the claim was so far in excess of what could ever realistically be sought to be achieved by the union - - -

PN397

THE COMMISSIONER: There has been an interpretation that has been attached to it since the decision was made but read carefully it focuses in on a particular claim, and it was about wages and it was about the concept that the claim was that there should be some appropriate level of wages going indefinitely forward into the future so that the claim was effectively open-ended and therefore one had to imagine what the claim was in practical terms in order to quantify what the employer would be required to do in order to meet the demand.

PN398

If that's the origin, and of course I have no reason to believe it is necessarily, of that word in its industrial context, because that's how it became famous, there doesn't seem to be a fanciful claim here in that sense. It was argued on numerous occasions before this Commission that if you added up all the claims that were being made in a log of claims, nobody would ever go to work and they'd all be paid an enormous amount of money and that therefore those logs of claims should be rejected as fanciful. Those arguments didn't ever find favour, nor did they find favour on appeal and in fact there are other High Court cases where claims of an extraordinary nature in the context of ambit were made but the difference between those and the claim of the CPSU is that they were definite in their dimensions whereas in CPSU it was an indefinite claim.

PN399

Of course, there's the whole question of the difference between a collective bargaining scenario and what's involved in ambit and the Commissioner is right in one sense when she says that ambit is no longer relevant because of the exercise of the mandatory jurisdiction to be satisfied that genuine attempts are being made to reach an agreement is a different thing to determining whether or not there exists a paper dispute comprised of ambit.

PN400

Fanciful can thus be given a particular meaning and the Commissioner has replied to it. The dictionary tends to suggest that it's some sort of imaginary or some sort of fantasy. You see, you're asking me to make a finding that the claims are fanciful and that that has some relevance to whether or not genuine attempts to reach agreement have been made or are being made.

PN401

MR EICHENBAUM: Yes, Commissioner. Perhaps a better word might be unrealistic, unrealistic in the context of - - -

PN402

THE COMMISSIONER: That's your contention, that they are unrealistic or excessive perhaps might be an even closer, depending upon your perception, description and the way you receive them. You receive them as excessive and consequently unrealistic.

PN403

MR EICHENBAUM: Yes.

PN404

THE COMMISSIONER: Isn't the difficulty with that that what you invite the Commission to do then is to be a judge of appropriate offers and concessions beyond claims that are incoherent?

PN405

MR EICHENBAUM: Commissioner, that might be right, except for, if, for example a claim were to be put that there should be a wage increase of
200 per cent, to pick a number, there could be - in my view there would be only very, very unusual circumstances in which it could be concluded that that claim was something - - -

PN406

THE COMMISSIONER: I think we're a lot closer together now and I think it's a matter of context, isn't it? There may indeed be a situation where some elective group of employees haven't had a wage increase for eons and even though the claim might be significant, highly significant in terms of its quantum as an increase, the particular circumstances of the case, taken as a whole might indicate that it's perfectly plausible then to be accepted. Generally speaking, though,
200 per cent as an increase would be considered to be a very large increase.
That still leaves the question as to whether or not the value of a particular proposal, the economic value of a particular proposal should be judged by the Commission except in extremis.

PN407

MR EICHENBAUM: Yes, Commissioner. I guess the point I'm trying to make is that there is, or in my submission there manifestly is going to be a point at which a claim is so large that it can - - -

PN408

THE COMMISSIONER: I actually don't have any difficulty with that, that whilst this is process focused, genuine attempts to reach agreement, there are circumstances where putting a - let's leave fanciful aside because I think that's something that is not explained in Commissioner Eames' decision in a way that informs my thinking. There is a situation where the objective value of the claim or the concession that's sought could be so far beyond the capacity of an employer to meet it in any circumstances whatsoever, and so far outside the boundaries of any calculation of the likely agreement being reached, that that claim could be said to be indicative of nothing more than a provocation and consequently not a genuine attempt to reach agreement. The difficulty is where you draw the line with that sort of thing, isn't it?

PN409

MR EICHENBAUM: Yes, Commissioner, I accept that.

PN410

THE COMMISSIONER: I'm with you on all fours conceptually that there can be claims that can be judged as evidence of a lack of genuineness in the attempts to reach agreement. The difficulty I have is, if it's not so obvious and it becomes shades of grey, to enter into some sort of discussion about what's a fair thing is to become an arbitrator of sorts and that's clearly not the intention of the legislation. It is contrary to the objects of the Act for the Commission to start to, by whatever means, intrude into its jurisdiction concepts of arbitration that are not provided for by the Act. In these circumstances is a claim for a 5 per cent wage increase unreasonable or, once again the conditions and the totality of the conditions would have to inform any judgment if such a judgment should be made. In these circumstances is a 10 per cent increase unrealistic?

PN411

The other aspect of this matter is that the percentages of themselves can be misleading and I'm not just talking about the base and the loaded rate issue, but the whole concept of percentages. Ms Gray has drawn attention to this, without necessarily explicitly stating that you look at the hourly rate that's being claimed, then ask yourself whether that is excessive and she says obviously that compared to other hourly rates it's not excessive and that indicates that the claim is not - other employers are paying similar hourly rates, that there's some indication that there's an appropriate hourly rate payable in comparable work areas like in
fire-fighting. The percentage, I think, is - well, it's questionable as to whether or not it's indicative of some out of bounds claim.

PN412

MR EICHENBAUM: The percentage, in my submission, Commissioner, is relevant in the sense that there is a commercial relationship in play here between Programmed Maintenance Services and its clients and if a claim is so high as to completely overwhelm the revenue that the company receives from its customer, then there can be no genuine attempt to reach agreement in the sense that the company could never agree to those figures. No company can ever - - -

PN413

THE COMMISSIONER: Yes, but that can't be in the mind of the person advancing the claims. You're now introducing into this concept the idea that the claimant organisations have to make their calculations by reference to the economic fortunes of the employer. That becomes an open-ended sort of puzzle, does it not, and so many value judgments about what's affordable and what's not affordable by either PMS or its principals. The next thing you know we'll have people quoting how much money people are making in the Stock Exchange reports and the like and judging claims on sort of apportionment of wealth concepts which are relative and it leads down a very slippery path. That's my great difficulty with this whole idea of the Commission being the judge of what's reasonable and what's not reasonable.

PN414

I do agree with you, though, that there could be a situation where some foolish claim is advanced which is nothing more or less than a provocation but I think you have to see that before you start fooling around with what people ought to be offering and not offering one another, otherwise we will emerge as some sort of de facto tribunal of the fair offer. The next thing you know we'll be back to some sort of de facto market adjustment scenario where people will be pointing at the Commission and saying, "They said that 6 per cent was okay in that case, 5 per cent in that case and 10 per cent in that case." So they're like the old days when you'll have industry demands formulated around Commission decisions. That's my great concern.

PN415

MR EICHENBAUM: Commissioner, I understand all of that and I simply say that it's our submission that this is a case where the size of what is being claimed, the fact that it's being maintained for the entire duration of the negotiations, that in fact it has come back to the same point after over - well, in one view, nine months, means that it is on the wrong side of that line. That's as far as I want to go with that submission, Commissioner.

PN416

Taking all of these matters into account, Commissioner, the company has decided and has indeed made an application to the Commission that the bargaining period be suspended and it has done so on the two grounds that I've referred to earlier, that is that the union is not genuinely trying to reach agreement and I simply reiterate all of the matters that have already been in my submissions.

PN417

I note that Ms Gray has said that the onus of satisfying the Commission that that is the case has shifted to the company. I think this becomes a really difficult question. The onus is clearly with the union in the first instance in order to get the order made that there be a ballot. If the Commission is not satisfied that that has been done, my submission is that that is the end of that question. If, in the submissions that are addressed to the order the Commission is satisfied that the union has not been genuinely trying to reach agreement, then we say the consequence of that is that the bargaining period in this case should be suspended.

PN418

In addition to that, we say specifically in relation to the matter that is set out in section 430(3) of the Act is particularly relevant in this case. This is a circumstance in which the Commission must suspend a bargaining period if after giving the parties an opportunity to be heard the Commission is satisfied that these circumstances exist. The circumstances in subsection (3) are that industrial action to support or advance claims is being taken, is threatened, implied, impending or probable. Commissioner, we say the very fact of the application itself is evidence that industrial action is at the very least threatened. The question of whether or not it is impending or probable, I accept may be held over until such time as a ballot is held and the result of the ballot, but it's certainly threatened at this point.

PN419

The action is adversely affecting or would adversely affect the employer or the employees of the employer and we say that if the action were to occur, it clearly would jeopardise the ability of the company to meet its contractual obligations to its client and therefore the income that the company derives from that contract.
The last part is that the industrial action which is threatened would itself threaten to endanger the life, personal safety, health or welfare of the population or a part of it and in that regard we have indicated in our submissions what we think would be the case and it may be that this is one of the things that Ms Gray was referring to when she said that there wasn't evidence on this matter. So far as evidence on this matter is concerned, we're content the accept the evidence of Mr Van Den Meulen, as referred to earlier in these submissions, that there is such a risk.

PN420

On that basis, Commissioner, we say that even if all of our other submissions were not accepted by the Commission and the Commission were otherwise minded to make the order for the ballot, the Commission should nevertheless first suspend the bargaining period, in which case no such order could be made. If the Commission pleases.

PN421

THE COMMISSIONER: Ms Gray.

PN422

MS GRAY: Commissioner, I'll be very brief and I do so especially in appreciation of how late the Commission has sat today to hear this matter. In terms of the prohibited content, when one looks at that part of the regulations relied on by the company, it is 8.5(1)(f):

PN423

The rights of an organisation of employees to participate in or represent an employee bound by the agreement in the whole or part of a disputes settling procedure unless the organisation is the representative of the employee's choice.

PN424

That's essentially the essence of the complaint. Now, what we say when we look at the draft agreement that Mr Eichenbaum has referred the Commission to that the clause 7.6 technology is not part of a dispute settling procedure. It is part of a consultation and communication process between the parties to the agreement and we say that it is not prohibited content and if it were to be decided to be prohibited content, it would certainly fall within the type of category referred to as a full bench as one of those ones very difficult to ascertain at the time that the claims are being supported and progressed by the union.

PN425

The one that is in the dispute resolution procedure clearly does not give a monopoly to a district union official to be involved in. It is an either/or situation in step 3 that the matter if it's unresolved will be referred for discussion between the appropriate union district official or other employee representative as nominated and the nominated management official. Now that clearly does not fall foul of the prohibited content referred to in paragraph F.

PN426

THE COMMISSIONER: Is there any authority on this?

PN427

MS GRAY: No I don't Mr Commissioner. I think that so far most of the parties in terms of this area have been having to rely on pre vetting by the Office of Employment Advocate as to what may or may not constitute prohibited content. I'm not aware of any matter actually being - - -

PN428

THE COMMISSIONER: There's no legal authority for a proposition that this is prohibited content.

PN429

MS GRAY: No I don't believe so Mr Commissioner and I'm sure
Mr Eichenbaum would have brought it to our attention if there was, so we say that in the union's view we don't believe that either of those matters are prohibited content. As to whether or not people on extant pre reform AWA's past their normal expiry date can be relevant employees, we only say in respect to that argument Mr Commissioner in addition to what we've already said, is that the relevant employees who we have identified are both members of the organisation, the CFMEU, and we say their employment will be subject to the collective agreement. We say it will be, is a future tense and that is the intention of the union. We can be confident Mr Commissioner that we don't need to rely on that being a subject of agreement between PMS and the union to terminate those AWA's because the continuing application of section 170(B)(M) enables us to apply to the Commission to have those terminated if the employer isn't going to help to facilitate that timing which doesn't disadvantage our members.

PN430

As to what applies to those employees if the AWA's are terminated, I did come across a part of the explanatory memorandum last night - which I don't have with me today - but it did go to - it was in the section which explained the application of the Australia Fair Pay and Conditions Standard and it was that item in the explanatory memorandum which identified that in pre reform industrial instruments they had already been subject to a test - that the Australian Fair Pay and Condition Standard didn't apply to them because they had already been subject to a no disadvantage test in the making of them under the pre reform provisions of the Act. As such the AFPC did not apply to pre reforms, certified agreements or to pre reform AWA's whilst they continued in operation - while they continued to operate the terms and conditions of the employees. The inference from that, I say Mr Commissioner, is that when those pre reform
AWA's - - -

PN431

THE COMMISSIONER: ..... Australian Fair Pay and Conditions Standard?

PN432

MS GRAY: Yes, although I understand and I agree with Mr Eichenbaum that it's really an issue that's a bit up in the air as with a lot of the very, unfortunately drafted provisions of the Act, it doesn't help the practitioners on either side of the Bar table or in fact the members of the Commission at these early stages. Finally Mr Commissioner I would say that although I've said before the company hasn't brought evidence to substantiate its application that the bargaining period should be suspended, it is now saying that in respect to the health and safety issue, the risk to safety, that it is going to rely upon that paragraph in - that statement in
Mr Van Der Meulen's witness statement in paragraph 11 which identifies that the nature of the work conducted by the members will mean that they will remain in readiness whilst engaged in any protected industrial action to respond to any emergency which constitutes a genuine and imminent risk to health and safety workers at TRU Energy Yallourn site.

PN433

We say that the onus is on the company to establish that - to justify its application to suspend the bargaining period Mr Commissioner and that in not cross-examining Mr Van Der Meulen on that issue to extract from him exactly what was meant and then to stand up in submissions and give an interpretation of that which we say is not reflective of the statement made, is insufficient and we would ask that the application not be granted. If the Commission wish to be satisfied of any of those points Mr Van Der Meulen is still here, he can be recalled to give further evidence to identify exactly what is meant by that, what other work on the day to day work of the relevant employees would not be done in accordance with taking the protected industrial action and how often perhaps an emergency situation arises, which falls within the conception of a genuine and imminent risk to health and safety of workers of TRU Energy Yallourn site, so we're happy to go in to that area, however we didn't elaborate or seek to have Mr Van Der Meulen elaborate on that point because we say that it is really up to the company to bring the evidence to substantiate its application and it has not done so.

PN434

We also say Mr Commissioner that there are, aside from our members who would - if the application is granted - remain in readiness to respond should an emergency arise, that there are also CFA officers and St John Ambulance first aiders being other employees at the site or near the site who could respond.

PN435

THE COMMISSIONER: That's not the subject of any evidence is it?

PN436

MS GRAY: It is Mr Commissioner, so I won't make submissions when we've
- we have the evidence in and we would ask that the ballot be made and that the orders be made in the amended form and as amended as seen necessary by the Commission in terms of programming and timetable for the ballot to be conducted and that of course depends if the Commission was of a mind to issue the Protected Action Ballot Mr Commissioner, that those dates would need to reflect the timeframes to enable the postal ballot to be undertaken from the time that the order is issued.

PN437

THE COMMISSIONER: I understand what you're seeking is the order as filed with such changes as to any consideration the Commission would give to the timetable for the ballot to enable it to be conducted by the Australian Electoral Commission. Is that right?

PN438

MS GRAY: Yes Mr Commissioner, exactly what I would have liked to have said so succinctly.

PN439

THE COMMISSIONER: All right.

PN440

MS GRAY: May it please.

PN441

THE COMMISSIONER: Yes, well I should indicate that I will make an order in relation to the Protected Action Ballot and that I dismiss the application for the termination of the bargaining period. I will produce my reasons for decision as quickly as practical. I am satisfied as required by the Act that the necessary preconditions specified have been met such that I must issue the protected action order and I will explain my reasons at some greater length in that regard. I am also not satisfied that the industrial action which is contemplated - on the evidence before me threatening to endanger the life, personal safety or health or welfare of the population or a part of it. The order which will be issued as a result of these decisions will be the order filed subject to the ability of the Australian Electoral Commission to conduct the ballot and to meet the statutory requirements in relation to the conduct of the ballot. The reasons for these decisions are reserved and will be published at the earliest possible convenience. Thank you.

<ADJOURNED INDEFINITELY [6.17PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

LUKE VAN DER MEULEN, AFFIRMED PN36
EXAMINATION-IN-CHIEF BY MS GRAY PN36
EXHIBIT #A1 WITNESS STATEMENT OF LUKE VAN DER MEULEN PN43
CROSS-EXAMINATION BY MR EICHENBAUM PN46
RE-EXAMINATION BY MS GRAY PN127
THE WITNESS WITHDREW PN133
GRAHAM WILLIAM MCTAGGART, SWORN PN137
EXAMINATION-IN-CHIEF BY MR EICHENBAUM PN137
EXHIBIT #R1 WITNESS STATEMENT OF GRAHAM WILLIAM MCTAGGART PN143
CROSS-EXAMINATION BY MS GRAY PN156
RE-EXAMINATION BY MR EICHENBAUM PN255
THE WITNESS WITHDREW PN266