AG2006/4640, Transcript of Proceedings [2007] AIRCTrans 393 (9 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17199-1

SENIOR DEPUTY PRESIDENT ACTON

AG2006/4640

s.170MH -prereform Act - Application to terminate agreement (public interest)
Application by Quality Maintenance Services Pty Ltd
(AG2006/4640)

MELBOURNE

12.40PM, THURSDAY, 26 JULY 2007

Continued from 9/3/2007

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

PN17

MR N HARRINGTON: I seek leave to appear on behalf of the applicant, which is Quality Maintenance Services Pty Ltd.

PN18

MR J WIELADEK: I seek leave to appear on behalf of the AMWU, together with MR J WARREN, and we don't oppose leave.

PN19

THE SENIOR DEPUTY PRESIDENT: Leave is granted. I think it's been granted previously anyway. Mr Harrington.

PN20

MR HARRINGTON: Thank you, your Honour. We've had some discussions this morning and there is an agreement of sorts which I will outline to you now, but it still leaves you with a role as such.

PN21

THE SENIOR DEPUTY PRESIDENT: Can you just hang on a second, Mr Harrington? Thank you.

PN22

MR HARRINGTON: That is all right. I might point out that one of our potential witnesses, Mr Ian Harmer, is sitting down there in the Tasmanian Commission, no doubt entertained. But he may not be called upon, Commissioner, but he is on screen there.

PN23

THE SENIOR DEPUTY PRESIDENT: Okay. Well, if he is content to sit there for a while. He has been sitting there for a while anyway, I suspect.

PN24

MR HARRINGTON: He tells me he is growing his goatee, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: I expected to see him more rugged up.

PN26

MR HARRINGTON: Your Honour, the situation is this, that the applicant today, QMS, made application pursuant to section 170MH of the pre-reform Workers Relations Act to terminate the agreement between it and the AMWU. That application was filed last year in early November and the matter came on before you on 17 November. I know there's transcript from that day, I think appearances and then it was adjourned into conference. Mr Amendelo was appearing for the company at that time and Mr Terzic was appearing - I'm pretty sure Mr Terzic was appearing for the union. There was a 4-hour conference that day and the parties put certain positions on record at the end of that conference.

PN27

A whole lot of things have happened since that time, Commissioner, but we are back here today on that same application and the QMS is seeking to have the agreement terminated. My friend and myself have had a discussion and the position seems to be this, your Honour. QMS presses its application; it intends to file in the Commission a number of statements and exhibits and make submissions should it be necessary. The AMWU will oppose that application to terminate the agreement but other than saying it opposes, will not make any other submissions.

PN28

So it's still a matter for you under the Act, given the test about not contrary to the public interest, your Honour, to determine the application. But I might point out also that in the circumstances of the AMWU's opposition to the application but not making of any submissions, the parties have agreed as follows; that the AMWU will provide to QMS by 5.00pm Friday 3 August a document setting out what the AMWU wants or does not want from the Boom Logistics Agreement that it has provided to us today as the style of agreement that it generally wants to negotiate. So that will give, for the purposes of future negotiation of a new agreement at QMS, some structure to negotiations as they move forward.

PN29

The parties have also agreed that in the week commencing Monday 6 August, but not on that day - and I think in fact the parties have agreed that on Tuesday 7 August they will meet here in Melbourne to further discuss a future agreement, a possible agreement. So that, if you like, is the deal that was struck this morning but there still remains a generalised and formal opposition to the MH application.

PN30

It's on that basis, your Honour, that what I propose to do is - unless there's objection - without formally calling any of the witnesses, which is Mr Ian Harmer, Mr Peter Mogridge and Mr Matthew Borghesi, hand up the relevant statements and exhibits to you, formally tender them; hand up a chronology; hand up a document which is an outline of argument. If you want to continue through lunch I cant take you through all that, but alternatively if you want to take a lunch break and read through it yourself, your Honour, that is a matter for you. Then at some point, either continuously now or at after a lunch break, I think my friend will get up and simply say he opposes the application. Then if you want me to address you in a more detailed form about why you should grant the application, I can do that.

PN31

Is that an acceptable way to move forward, your Honour?

PN32

THE SENIOR DEPUTY PRESIDENT: So is it expected that I determine the application prior to the outcome of those negotiations between the parties that you talk about?

PN33

MR HARRINGTON: That would be our hope or QMS' expectation. I can't speak for my friend on this, but I didn't mean to confine you or lock you into a timeframe. Perhaps on the material before you today you might for a view and express that view and then if you wish to give reasons, provide those reasons at a later time. But it was my perhaps unstated anticipation, at least to my friend here, that the application itself would be determine one way or the other.

PN34

THE SENIOR DEPUTY PRESIDENT: Right. Mr Wieladek.

PN35

MR WIELADEK: Your Honour, we see that the way forward, put forward by my friend, is one amenable to the AMWU. We would reiterate our opposition and we do so if you were to continue after lunch. But the schedule for meetings and exchange of documents is something that the AMWU sees as a useful and a prudent course to resolve the issue of whether - I'm sorry, not so much whether but what type of document covers the employment conditions of QMS employees, covered by the AMWU.

PN36

THE SENIOR DEPUTY PRESIDENT: Sorry, what was that last bit?

PN37

MR WIELADEK: Basically that it's a prudent course, that of exchange of documents and scheduling a meeting, is the best way forward to resolve this.

PN38

THE SENIOR DEPUTY PRESIDENT: Presumably that is of side interest to this application.

PN39

MR HARRINGTON: It is but my learned friend and I agree that I would - and I was happy to explain, although they are opposing the application, I was happy to put on the record the context in which that formal opposition was taking place.

PN40

THE SENIOR DEPUTY PRESIDENT: I see.

PN41

MR HARRINGTON: Perhaps it might be worth observing that the parties are on the record, not strictly linked this application, but locking themselves into a process in future days which may well be a relevant consideration, your Honour, insofar as the application is concerned.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well do you want to hand up the documents?

PN43

MR HARRINGTON: Yes, I will. But Mr Harmer may well be released then because I don't - I mean, do you require each witness to appear before you to formally adopt?

PN44

THE SENIOR DEPUTY PRESIDENT: If they are not going to be cross-examined then I can just take their statements as the evidence.

PN45

MR HARRINGTON: That is what I would have thought, your Honour.

PN46

MR WIELADEK: No, your Honour, we won't be cross-examining.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. No, I will just take their statements.

PN48

MR HARRINGTON: So Mr Harmer can probably be released at this point.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. You are excused, Mr Harmer.

PN50

MR HARRINGTON: Thank you.

PN51

MR HARMER: Thank you, your Honour.

PN52

MR HARRINGTON: Your Honour, there's a few documents floating around but what I will be handing up to you is as follows. There is a statement from Matthew Borghesi and exhibits, dated 2 November 2006. I will just check that it's all here in this folder. That is a signed statement from Matthew Borghesi dated 2 November 2006 and I will just hand that across. There's a further supplementary statement of Matthew Borghesi dated as of today's date, effectively, because - I will just check that it's been signed, your Honour. I believe it has been signed. Yes, it was signed, dated 25 July 2007. So that is the supplementary statement of Matthew Borghesi and I will hand that folder across to you, your Honour.

PN53

There is a statement that I wish to tender from Mr Peter Mogridge and that is dated 15 November 2006. I understand that first folder I handed to you has Mr Mogridge's statement dated 15 November 2006; can you just check that, your Honour? I know at the top it says it was Mr Borghesi's.

PN54

THE SENIOR DEPUTY PRESIDENT: The first one is the statement of Mr Borghesi.

PN55

MR HARRINGTON: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: Of 2 November and then there's a whole lot of attachments at the end.

PN57

MR HARRINGTON: That's right, yes.

PN58

THE SENIOR DEPUTY PRESIDENT: There's a statement of Mr Mogridge.

PN59

MR HARRINGTON: That's right.

PN60

THE SENIOR DEPUTY PRESIDENT: Tab 12.

PN61

MR HARRINGTON: It should be signed and dated 15 November 2006.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR HARRINGTON: Thank you.

PN64

THE SENIOR DEPUTY PRESIDENT: Also statements of Mr Harmer and Mr Adams.

PN65

MR HARRINGTON: Yes, that's right. They are all the November 2006 statements in that first folder.

PN66

THE SENIOR DEPUTY PRESIDENT: Right. Yes, and there's another statement of Mr Borghesi in this second folder.

PN67

MR HARRINGTON: Yes, and that is the November - - -

PN68

THE SENIOR DEPUTY PRESIDENT: 25 July.

PN69

MR HARRINGTON: Sorry, that is the 25 July.

PN70

THE SENIOR DEPUTY PRESIDENT: There's also a supplementary statement of Mr Mogridge, it's said, at 16.

PN71

MR HARRINGTON: Yes. Yes.

PN72

THE SENIOR DEPUTY PRESIDENT: Which is 25 July and a supplementary statement of Mr Harmer, 24 July.

PN73

MR HARRINGTON: That's right. That's correct as well.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes.

PN75

MR HARRINGTON: Mr Harmer's is not signed but I can tell you from the bar table that that is his statement and he has perused that and in fact I think he signed a copy down in Tasmania this morning.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR HARRINGTON: I saw that on the video.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MR HARRINGTON: So, your Honour, just to be clear you have got two volumes of folders there but there is a, what I will call the original statement of Matthew Borghesi dated 2 November 2006 with attachments; the supplementary statement of Matthew Borghesi dated 25 July 2007; the original statement of Mr Mogridge dated 15 November 2006, the supplementary statement of Mr Mogridge dated 25 July 2007; a short November 2006 Harmer statement, which I think you were just referring to, and a much longer supplementary statement from Mr Ian Harmer dated 24 July 2007; and to finish off, your Honour, I believe that there's also a Mr Adams statement in the first folder I handed to you, from November 2006. So all up there are, if I'm not mistaken there's seven statements that are before you with exhibits and I formally tender those in evidence, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: I will mark them for ease of reference separately.

EXHIBIT H1#WITNESS STATEMENT OF MATTHEW BORGHESI DATED 02/11/2006
EXHIBIT #H2 SUPPLEMENTARY WITNESS STATEMENT OF MATTHEW BORGHESI DATED 25/07/2007
EXHIBIT #H3 WITNESS STATEMENT OF MR MOGRIDGE DATED 15/11/2006
EXHIBIT #H4 SUPPLEMENTARY WITNESS STATEMENT OF MR MOGRIDGE DATED 25/07/2007
EXHIBIT #H5 WITNESS STATEMENT OF MR HARMER DATED 16/11/2006
EXHIBIT #H6 SUPPLEMENTARY WITNESS STATEMENT OF MR HARMER DATED 24/07/2007
EXHIBIT #H7 WITNESS STATEMENT OF MR ADAMS DATED 16/11/2006

PN81

THE SENIOR DEPUTY PRESIDENT: Of course, attached to each of those statements as relevant are various exhibits, as indicated in the statements.

PN82

Yes.

PN83

MR HARRINGTON: Thank you, your Honour. Can I hand up to you, really as an aide memoire, what I will call the QMS chronology. What this is is a table, your Honour, that perhaps might help you get through the materials, to the extent you need to read it all. It simply sets out the date, the event and then where that assertion of fact is located in the material before you. I hand that up; that is the q chronology. Do you need to mark that, your Honour?

PN84

THE SENIOR DEPUTY PRESIDENT: I will.

EXHIBIT #H8 QMS CHRONOLOGY OF EVENTS

PN85

THE SENIOR DEPUTY PRESIDENT: Yes.

PN86

MR HARRINGTON: Finally, your Honour, I hand up a copy of a seven page document which is the applicant's outline of submissions. Do you want to mark that as well, your Honour?

EXHIBIT #H9 APPLICANT'S OUTLINE OF SUBMISSIONS

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MR HARRINGTON: Your Honour, that is all the material I seek to rely upon in making the application today. I can start taking you through it. It won't take a very long period of time; it might take half an hour, simply because I will go to the chronology and then to the submissions.

PN89

Alternatively, you can read what you can over the next period of time and I can come back and if you have questions for me, if you want me to generally take you through it, it's a matter for you, your Honour. I'm in your hands in that sense.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. I think what I will do is I will adjourn this matter until 2 o'clock, which will give me the opportunity to read the material and the outline and then we will come back and you can add anything you want to add; or if I've got any questions I may turn to yourself, Mr Wieladek.

PN91

I will adjourn on that basis.

PN92

MR HARRINGTON: Thank you.

<LUNCHEON ADJOURNMENT [12.56PM]
<RESUMED [2.19PM]

PN93

THE SENIOR DEPUTY PRESIDENT: Mr Harrington, I've had the opportunity to read the material.

PN94

MR HARRINGTON: You have had?

PN95

THE SENIOR DEPUTY PRESIDENT: Yes.

PN96

MR HARRINGTON: Yes. All I was going to do, your Honour, on my feet now was simply make a few brief points which summarises that, which is that in this application both November last year and also recently in July, the employees were notified that today was occurring, that this matter was proceeding to a hearing. Obviously the AMWU were notified, they are here, and I refer to Mr Borghesi's supplementary statement at paragraph 36.

PN97

Furthermore, I would make the submission that in the context of the termination of the agreement being sought it's my submission that there's a very fair undertaking in place in respect of certain parts of the agreement that may be terminated by virtue of your decision. I make reference to MB24, which is an exhibit to Mr Borghesi's supplementary statement, which sets out the communications with employees and the fact that the employees were told that the undertaking was proffered previously was pretty much proffered again; that the company agreed to abide by certain provisions within the agreement if it were to be terminated by the Commission.

PN98

Your Honour, also the submission I would make is as you have had relayed to you today, there's an agreement between the parties to continue now at, I think, the 17th month mark or thereabouts, talking, to continue trying to negotiate a new collective agreement and that will happen over the next 2 weeks. One can only speculate where that might end up but if you are aware of the contents of the material that is before you, but even if only you go to the chronology you will see that, in my submission, QMS comes to this Commission with very clean hands. It has been trying avidly for a prolonged period to reach a new agreement, in the context where the old agreement was still operating past the expiry date.

PN99

Your Honour, the submission I make there is that QMS does come here in good conscience and with clean hands. Furthermore, your Honour, you will be aware of the objects of the pre-reform Act and also the current and post-reform Act. The pre-reform Act simply stated at section 3(e) as follows:

PN100

Providing a framework of rights and responsibilities for employers, employees and their organisations which supports fair and effective agreement making and ensures that they abide by awards and agreements.

PN101

So under the old Act, which is no longer of course in force in that form, on of the objects of the Act was to provide for fair agreement making, effective agreement making. It's my submission today that one matter you should take into account, without speculating too creatively, is that if the old agreement, the current agreement, were to be terminated it is not putting one of the parties into a position of unfairness. A party is not being seriously or significantly disadvantaged, and that submission works both in respect of the objects of the old Act - and I will come to the object of the new Act - but also in the context of what I will call the undertaking/safety net that is there for the employees. Because even though you might terminate the agreement, there is an undertaking by QMS to observe certain parts of that agreement, as the parties move forward and continue to negotiate.

PN102

Your Honour, it's just as a matter of formality to refer to the4 new Act, that one of the objects as section 3(e) is enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances. It's in that context, your Honour, that at the moment both parties are choosing to try and negotiate a union collective agreement. At the moment that is the intention of QMS and that is what the AMWU wants. The old agreement was also a union collective agreement; if you were to terminate the, what I'm calling old agreement, your Honour, the AMWU is still an active participant in the process and the parties are still seeking a union collective agreement, moving forward in their relationship. That submission is made at paragraph 44 of the written submissions, H9, your Honour.

PN103

I've made reference to the undertaking already that has been given in respect of the aspects of the current or old agreement. At paragraph 46 of the written submissions it's my submission that it's at least arguable that by terminating the old agreement, which is presently in force and operating beyond the expiry date, there is an encouragement for both parties to somehow find a common ground to enter into a new agreement; because it is clear from all that is before you, both parties do want to enter into a new agreement with each other. How each party is trying to get there, perhaps is open to debate but the parties do want to enter into a new agreement.

PN104

So perhaps if they lose what I will call the safety net of the old agreement operating past the expiry date, there will be an encouragement or perhaps the parties will come with a greater vigour to finding the common ground that needs to be found to enter into this new agreement.

PN105

Finally, to make a brief reference to paragraph 47 of the written submissions, your Honour, I make reference to the conduct of the AMWU and its representatives to date. I make reference in the context of making a submission about coming to this Commission with clean hands. The AMWU comes here today and says it opposes and it continues to oppose this application. QMS brings this application and it does so with clean hands but in my submission, the same can't be said of the AMWU when one looks to the history of recent negotiations for a new agreement.

PN106

I make specific reference to the matters referred to in paragraph 47; simply this, your Honour, that on transcript on 17 November 2006 the parties thought they pretty much had an agreement subject to a vote. In good faith the parties left the Commission and said to each other effectively, "This should be it. But of course the AMWU members, the employees have to vote on it". It was implicit as a result of what was said on transcript that Mr Warren would back the agreement. He would not necessarily have to sell it to his members but would at least support it, saying, "We've reached the position".

PN107

There is evidence before you that as early as 8 December 2006 Mr Warren communicated to Mr Borghesi - and this is at Mr Borghesi's supplementary statement at paragraph 9 - that there were new issues to be dealt with. On 19 December 2006, Borghesi supplementary statement at paragraph 19, there were five new issues listed by Mr Warren. Now this is before there was even a Comms meeting to discuss the proposed agreement that the parties thought they had reached at the Commission on 17 November 2006; about a month later my client, QMS, is told, "Well, there are new issues".

PN108

Ultimately, Mr Mogridge comes to this Commission and has given unchallenged evidence in his supplementary statement that he heard Mr Warren say towards the end of the Comms meeting on 27 February 2007, "That's right boys. There's too many grey areas". That is unchallenged evidence which means that Mr Warren left this Commission after 17 November, eventually got to his Comms meeting on 27 February 2007, didn't even back it or promote it or put forward to his membership that they should support this deal that was more or less struck back on 17 November 2006.

PN109

Your Honour, the matter came back before you by way of conference on 19 March 2007, and the AMWU committed on the record after that occasion to provide an issues paper saying to QMS what it didn't like about the proposed agreement that seemed to be acceptable back on 17 November 2006. Well, it's now four months later plus a week, and no issues paper, if that is what it was called, no paper, nothing in writing has come to QMS explaining what is unacceptable to the AMWU in respect of this proposed or new agreement, to replace this old agreement. Finally - sorry, I withdraw that. Mr Borghesi, in his supplementary statement at paragraph 27, addresses those matters.

PN110

Finally on 20 March 2007 Mr Terzic, from the AMWU, wrote an email to QMS more as a messenger than anything else and just said, "The AMWU is not interested in closing out the negotiated agreement" or "the negotiated matters from 17 November 2006". Mr Borghesi addresses that at supplementary statement paragraph 28.

PN111

So Commissioner, for all that my client has been doing at least since November last year, which is some eight months ago, it's amounted to almost nothing in the bargaining process, if I may refer to it like that. You might say that is what happens in bargaining processes but this is a little bit different, your Honour, for this reason; the AMWU is on transcript, is on record outside of the without prejudice conferences, as saying it will either do certain things or will take certain steps. It has not even done that in order to move the negotiations forward for a new agreement. When I say it has not done that, the evidence is before you in unchallenged form about what did and did not happen in respect of those matters. I won't take you to all those now but I've given you a little summary at paragraph 47 of the written outline.

PN112

So ultimately, your Honour, it's my submission that one of the considerations before you today in terms of what is not contrary to the public interest is that QMS comes with clean hands, with a bona fide intention over the last eight months to try and get a new agreement in the context or with the old agreement, the current agreement in the background; and the AMWU comes here and opposes the termination application. One assumes that when they are opposing that application, that the implied submission if there's not one made is that it would be contrary to the public interest to terminate.

PN113

My submission there is it's not contrary but, furthermore, the party who says it would be contrary, the AMWU, does not come here with clean hands, given the matters that I've made submissions on today. If it pleases the Commission.

PN114

THE SENIOR DEPUTY PRESIDENT: Mr Wieladek.

PN115

MR WIELADEK: Thank you, your Honour. I will just briefly state what the union's position is. The union opposes the application under section 170MH but we do not add any formal submissions to that effect or in addition to that. Thank you. If the Commission pleases.

PN116

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr Harrington?

PN117

MR HARRINGTON: No submissions.

PN118

THE SENIOR DEPUTY PRESIDENT: I'm in a position to give a decision on this matter.

PN119

In respect of the matters set out in section 170MH(2) of the pre-reform Act, I'm satisfied that I've obtained the views of persons bound by the agreement, about whether it should be terminated, having regard to the attendance here of the AMWU and the submissions that they have put.

PN120

In respect of the matters in section 170MH(3) of the pre-reform Act I consider, having regard to the submissions that have been put to me, including the material that has been tendered, that it would not be contrary to the public interest to terminate the Quality Maintenance Services Pty :Ltd Offshore Esso Maintenance Certified Agreement 2003.

PN121

Accordingly I must by order terminate that agreement and I will do so. The termination will take effect from the date of the order; that order should issue tomorrow.

PN122

I will now adjourn.

<ADJOURNED INDEFINITELY [2.33PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT H1#WITNESS STATEMENT OF MATTHEW BORGHESI DATED 02/11/2006 PN80
EXHIBIT #H2 SUPPLEMENTARY WITNESS STATEMENT OF MATTHEW BORGHESI DATED 25/07/2007 PN80
EXHIBIT #H3 WITNESS STATEMENT OF MR MOGRIDGE DATED 15/11/2006 PN80
EXHIBIT #H4 SUPPLEMENTARY WITNESS STATEMENT OF MR MOGRIDGE DATED 25/07/2007 PN80
EXHIBIT #H5 WITNESS STATEMENT OF MR HARMER DATED 16/11/2006 PN80
EXHIBIT #H6 SUPPLEMENTARY WITNESS STATEMENT OF MR HARMER DATED 24/07/2007 PN80
EXHIBIT #H7 WITNESS STATEMENT OF MR ADAMS DATED 16/11/2006 PN80
EXHIBIT #H8 QMS CHRONOLOGY OF EVENTS PN84
EXHIBIT #H9 APPLICANT'S OUTLINE OF SUBMISSIONS PN86