BP2007/3456, Transcript of Proceedings [2007] AIRCTrans 540 (11 October 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17536-1

COMMISSIONER RAFFAELLI

BP2007/3456

s.451(1) - Application for order for protected action ballot to be held
Transport Workers’ Union of Australia
and
Gate Gourmet Services Pty Ltd
(BP2007/3456)

SYDNEY

1.05PM, WEDNESDAY, 26 SEPTEMBER 2007

Continued from 12/9/2007

PN56

MR M AIRD: Commissioner, I appear for the Transport Workers Union of Australia.

PN57

MR T CAPELIN: Commissioner, I am solicitor for the respondent. Also with me is MR A MOULTON, another solicitor from our firm, and MS M MATVEJEV, the human resources manager from Gate Gourmet.

PN58

THE COMMISSIONER: Yes, Mr Aird. Well, I have before me two applications: one from the TWU about the voting times a second one from Gate Gourmet about whether the order ought to be revoked. Have you - who should go first?

PN59

MR AIRD: I might commence, if I may, Commissioner. I have received - this is in regards to Gate Gourmet’s application. I have received an affidavit and an enterprise agreement attached - or a draft proposed enterprise agreement attached to that affidavit. Other than that I have only been advised in the last couple of minutes that there were seeking to have the order revoked. And I understand on the basis of a failure to comply with the initiating of bargaining periods - I think its section 523, isn’t it, the initiation bargaining periods. So I haven’t seen the application or the basis for that application apart from the affidavit and the agreement which I only received in the last - which I was only able to access in the last hour or so.

PN60

Commissioner, we have re-listed the application to vary the order in regards to section 7 of the order that was issued in regard to the timetable for the ballot. We note at 7.3 that the order provided for the ballot close by Thursday, 27 September 2007 at 10 am. So it’s at 10 am tomorrow, Commissioner. I’m advised that a number of eligible voters for this ballot who work for Gate Gourmet Services Pty Ltd at Darwin Airport, that’s a small number, somewhere between six to ten, are yet to receive their ballot papers and that a large number have only just very recently, some last evening, as I’m advised, have just received their ballot papers.

PN61

I am advised, Commissioner, that it takes somewhere in the vicinity of three days, three to four days, for the ballot papers to be mailed back to the Sydney address. As it stands, Commissioner, that would mean a number of eligible employees that - by “eligible employees” I mean employees who would be eligible to vote in the secret ballot to take protected action - would not be able to exercise a vote. Clearly, that’s not the intent of the Act and clearly it wasn’t the intent of the parties when the order was issued.

PN62

On that basis, Commissioner, we would seek to have the 7.3 altered to allow for the ballot to close on Friday of next week. That’s Friday, 5 October 2007 at 10 am. That would enable people to vote in the protected action ballot.

PN63

THE COMMISSIONER: I haven’t heard from Mr Capelin on that point. I guess he has concerns elsewhere. I should have - we have been in receipt of correspondence from the Electoral Commissioner and they make the point - I guess it’s not a submission but it’s something that I give due regard to - and that is that - well, there are two aspects. To allow the ballot to close on 5 October would mean that those persons who haven’t voted will have significantly more time to exercise their vote than those who, let’s say those - I don’t know if Gate Gourmet is in Sydney but let’s assume that the people in Sydney got their stuff quickly, got it back, and they did it by tomorrow and the electoral officer makes the point that it’s normal that the date of closing would be consistent for all eligible voters, and in fact the date of closing would not be consistent because there might who would say, “Well, we only had three days to think about it, our Darwin colleagues had a week”. There’s also the - I don’t want to speculate but there is an ability for some kind of campaign to be operating where some people have voted and they’re ringing each other up. I don’t know if that already happens. I suppose there’s nothing wrong with that. So he makes that point.

PN64

The second point is, if in fact that is a matter of concern and if it’s to be extended to Friday, 5 October or some day in the future, then the ballot papers that have gone out should be scrapped and it should - basically new ones should be re-issued and a timeframe be there that would enable ballot papers to get to Darwin or to Perth and back or I don’t know where else we’re talking about - Sydney and back, within the relevant period. But he then makes the point - I don’t know if this is a - that would be an additional cost and would have to be borne by the department and a little bit by the TWU, but I don’t know how much we’re talking about.

PN65

But I guess his big point is he’s reluctant and advises against allowing some persons to have voted, shall we say consistent with the old order, and now allowing other to vote consistent with the new or revised order. It would be different if this had occurred before the ballot papers had gone out, in which case no one would have been prejudiced. But anyway, that’s one consideration.

PN66

MR AIRD: Right. But I mean from the point of view of the applicant we wouldn’t - we couldn’t agree with that position. I mean, the extension that’s sought is quite limited extension. I’m advised that a number of people from the Northern Territory only received the ballot paper last night so it’s not like they’ll have an extended period of time to consider the position given that it takes some period of time for the ballot papers to return.

PN67

Given the nature of the ballot, that some people are based in Darwin and some people are based in Sydney - - -

PN68

THE COMMISSIONER: Are they only two locations?

PN69

MR AIRD: I think there is a handful of people in - sorry, Commissioner, I think there are a handful of people in Brisbane Airport. I have issue in going into any of those details as it goes to eligible employees.

PN70

THE COMMISSIONER: All right.

PN71

MR AIRD: There are sites across the country but my understanding is that the bulk of the employees that are eligible are in Sydney and Darwin and I think there may be some - a smaller number of eligible employees in Brisbane and Melbourne. But given the nature of that post order that’s issued from Sydney, people are going to have different time limits to place their vote anyway. I would think that - I mean, I really don’t think a change in the closing date would really have a great impact on people’s consideration of which way they’re going to vote. I mean, this is simply an extension to allow the process - to allow people to vote. The intent of the Act, Commissioner, which the AEC may not be aware of, but the intent of the Act is to have these secret ballots dealt with as expeditiously as possible. So we would see no basis for the ballots that have already been issued to be withdrawn and have a whole process of reissuing ballot papers again.

PN72

The AEC put - the considerations that I think they put to you, with respect - obviously they’re not here to make their own submissions - but I don’t know if they have had consideration to the intent of the Act which is to have the process dealt with expeditiously. We would say, in those circumstances, that the best way to deal with the matter is to make limited changes to allow the process to go forward and happen in a democratic way.

PN73

That’s all we seek and the timeframe for the people in the Northern Territory to vote where I have had specific concerns raised and which is the basis that we made the application to have an extension is that, as I said at the start of the submissions, a number of people only received their ballot paper last night and some people - some six to ten people, I’m advised, are still waiting to receive the ballot paper. I think there’s around - well, I don’t want to go into total numbers but I think it’s around 50 eligible employees at that particular site and most of them have - if they haven’t received the ballot papers at all they’ve only received them recently. So there’s no question that there’s some sort of extended period for them to have a vote. It would be the similar timeframe, I guess, with Sydney employees where the differential in time was raised.

PN74

So I would submit, Commissioner, that, with respect to the AEC, that the more appropriate course would be the course that we have suggested which is a limited extension on the timetable to enable people to exercise their - exercise a vote.

PN75

THE COMMISSIONER: Yes. Mr Capelin?

PN76

MR CAPELIN: Thank you, Commissioner. Commissioner, if we fail in our primary submissions, and we hope we won’t, on the question of whether it should be extended to 5 October or a completely new ballot is put forward for all employees, our position would be supportive of the union’s position that it just gets extended to 5 October at Darwin and not restart the voting process at all sites.

PN77

However, our primary submission is that the ballot order should not be extended and indeed the initial ballot order should be revoked. We make those submissions on the basis that you start with a primary position that protected industrial action or industrial action that obtains protection can only obtain that protection if there is specific legislative fiat for that to occur. We have an agreement, in this case, which is an agreement that will cover a number of group companies. There are four group companies which I think all the parties recognised on the last occasion would be party to the agreement that is being sought to be negotiated.

PN78

In those circumstances, where the union or the parties are negotiating agreement which is to cover a number of group companies, the legislation does not provide protection for industrial action.

PN79

MR AIRD: Commissioner, can I just - it’s not an objection. I just want to raise a point. I just - we’ve sought a limited position to vary the timetable to enable people to vote. Given that the order has been issued for some period of time and the respondent is now raising some serious concerns - I mean, they have been touched on to me just before this matter came on. I mean, I would really like to see - I think it’s reasonable in this situation, you know, whether I have to contact Mick Pieri to have him available officially at site, to at least have something in writing on the basis of on what basis he’s seeking to have the order varied.

PN80

I have an affidavit the ground of which doesn’t indicate any sections of the Act that - it doesn’t provide a basis for the varying or revocation of the order. So, I mean, I just think it places us in an unreasonable situation.

PN81

THE COMMISSIONER: Well, I’m not quite sure. I mean, what’s wrong with Mr Capelin putting his position? I don’t understand.

PN82

MR AIRD: Well, it’s an issue of natural justice. I mean, I was - I was of the vague understanding that there were issues in relation to pattern bargaining that were being raised. I understand it’s now not the position. I have only been advised shortly before the proceedings commenced that the issue was in relation to the initiation of the bargaining period. I’m not sure on what basis or what powers of the Commission are. There’s been a reference to section 111. They’re relying on, as I said, to vary the order.

PN83

I mean, the ballot has been taking place for some considerable period of time. The orders were issued in - I can’t remember the exact date but 12 September 2007. I mean, if they’re seeking to revote the orders obviously the onus on the applicant in filing is quite considerable. We would say it’s a reasonable position for natural justice to apply and that the respondent in these proceedings give us some indication on what basis they’re seeking to invoke - - -

PN84

THE COMMISSIONER: Isn’t he about to do that?

PN85

MR AIRD: Well, I’m saying - I’m suggesting that it should have been provided to us in writing. I’m still seeking to be advised in writing before the matter commenced putting that - full proceedings commence today?

PN86

THE COMMISSIONER: Thank you, Mr Aird. I note that you may not be fully briefed about what’s going to be said but I’d like to hear what is going to be said.

PN87

MR CAPELIN: Thank you, Commissioner. Commissioner, I think where I was at was that we have an agreement that involves a number of group parties, the - - -

PN88

THE COMMISSIONER: When you “an agreement”, a proposed agreement?

PN89

MR CAPELIN: A proposed agreement. And it’s proposed that a new agreement be concluded that has four employer parties who are related corporations, as that term is understood by the Corporations Act. You can certainly have one of those agreements under the legislation and section 322(2) of the legislation provides that those groups of companies can be treated as a single employer.

PN90

However, the part of the legislation which gives protection to certain industrial action, only gives protection to certain types of - sorry, protection to industrial action which is pursued in relation to certain types of agreements. One of the types of agreements that it does not give protection to is an agreement which will involve a number of related corporations. Commissioner, section 423(1)(b)(ii) is the section which specifically excludes agreements of this type - do you want to go to that section, Commissioner, before I continue?

PN91

THE COMMISSIONER: Yes. All right.

PN92

MR CAPELIN: So, as you can see, Commissioner, this is the section which allows certain parties to start the process which may lead to protected industrial action, the first thing they do is initiate a bargaining period. You cannot initiate a bargaining period in relation to an agreement of the type that is being sought by the parties in these negotiations.

PN93

If you cannot initiate a bargaining period you do not have the prerequisite to then go and get a ballot order. If you don’t have the prerequisite to get a ballot order, you can’t get a ballot order and therefore the ballot order was improperly made. On the last occasion nobody raised the issue so it was a simple case of the advocates in the case not putting before this Commission the relevant law that was relevant to your determine. And, as a result of, on our submission, an error occurred and it’s appropriate to correct that error by revoking the order.

PN94

Alternatively, if you were not minded to do that, you could not extend the order which would I think, in effect, make the ballot inappropriate anyway. But I think the correct - definitely the correct approach to take, Commissioner, is to revoke your prior order and that makes it irrelevant to the submission that’s before you now. At this stage I don’t have any further submissions.

PN95

MR AIRD: Commissioner, it’s clearly in the intent of the Act to provide for protected action through a secret ballot process in the pursuit of the agreements that are provided for ..... now. If I can take you to section - we say, with respect to my friend, that it’s an incorrect interpretation of section 423. We’d say this, Commissioner, if you go to section 423(1)(b)(ii) - do you have a copy of the Act there, Commissioner?

PN96

It states:

PN97

An agreement with two or more corporations that are treated as one employer because of paragraph 322(2)(b) -

PN98

and it makes a specific reference to section 322(2)(b). Now, Commissioner, if you would go to section 322(2)(b), it indicates that a bargaining period can’t be - we would - sorry, I’ll start again, Commissioner.

PN99

If I can take you to 322(2), we say that the bargaining period - sorry, I just need to go back for a second, Commissioner, and preface this, that we don’t concede the position but the bargaining period is in relation to seeking an agreement with two more corporations so we don’t concede the position I needed to - I should have made that clear from the outset. We say that we’re only seeking out a collective agreement with Gate Gourmet Services Pty Ltd. I’ll make some further submissions on that later if this position is rejected.

PN100

But if we go from 423(1)(b)(ii) to 322, we say section 322(2)(a), which is not excluded. Section 322(2)(a) says:

PN101

If two or more employers carry on a business, project or undertaking as a joint venture or common enterprise -

PN102

Clearly in the circumstances in the evidence put before you by the respondent that the relationship between the corporate entities that’s provided in the affidavit by the respondent establishes that they’re carrying on a common enterprise and there is provision there to initiate a bargaining period and progress to a secret ballot from that position.

PN103

We would say that any other interpretation, Commissioner, would be plainly absurd on the face of the Act. If you have a look at section 322 it does provide a definition for what a single business entity - employer is. I understand that - well, I don’t understand it. Well, I don’t understand it. That’s a position of controversy with the respondent. But my understanding is that there is a - that they concede that the corporate entities that they have identified are carrying on a single business and that’s why indeed it’s been the position of the company, the respondent in these proceedings, not the union, that they seek to have a collective agreement with a number of different corporate entities.

PN104

Clearly, there is - we would say it would make the Act be interpreted in an absurd way. Clearly 423(1)(b)(ii) provides an exception under 322(2)(a) which would enable an agreement to be done with a single business but enable an initiation of bargaining period and proceed to protected action. The alternative from there would mean - for a single business, Commissioner - you may well have to lodge say 25 different - initiations of bargaining periods have to have 25 secret ballots. That would be plainly absurd. You are clearly not pattern bargaining under the Act because you are entitled to pursue common terms and conditions across a single business. So if our position is not accepted, the Act, we would submit would have to interpreted in an absurd fashion and that’s clearly not reasonable.

PN105

I will make some further submissions if that position is not accepted because it would - as I have said, Commissioner, we don’t accept the - we don’t concede the initial point that we’re bargaining with more than one corporate entity for a collective agreement.

PN106

THE COMMISSIONER: Do you have anything in response, Mr Capelin?

PN107

MR CAPELIN: Yes, I do, Commissioner. I think 20 through 3(2) has two types of groups of employers. This group is one that - these are related corporations under the Corporations Act. That is the type of grouping that we have in this instance. We do not have a grouping which would fall into (a). I’m not exactly sure what grouping would fall into (a), whether that’s setting up for a multiple business agreement or not. But certainly our circumstances fall within 322(2)(b).

PN108

My understanding from reading the transcript on the last occasion was that it was not in dispute that we had negotiations for an agreement which would involve four related entities. If that’s now in dispute I would need to put on some evidence on that question and I would seek the ability to do so. I have provided my friend with an affidavit which goes partly to that issue. I would also like to ask some supplementary questions of the witness, if I may want to call a witness on this issue.

PN109

THE COMMISSIONER: I thought last time the union said that the bargaining was for Gate Gourmet Services Pty Ltd.

PN110

MR AIRD: Perhaps if I - I might clarify the union’s understanding of the position in this matter, Commissioner. Commissioner, I’m advised that we have current certified agreements in place with Gate Gourmet group and those agreements - well, which we don’t normally ...... We have current federal proof of certified agreements in place with Gate Gourmet Services Pty Ltd. I’m advised, and I have sought to have this - to get some evidence on this before proceedings have come on today but I have been unable to do so. So to move into affidavit evidence and presenting evidence, I’d probably need to seek an adjournment to be able to put that evidence on.

PN111

But I’m advised that the federal agreements that are in place, that pre-reform certified agreements, that the parties to those agreements are the Transport Workers Union of Australia and Gate Gourmet Services Pty Ltd. We sought to pursue and agreement across the Commonwealth of Australia Gate Gourmet Services Pty Ltd, Commissioner. So we sought to consolidate those different agreements with Gate Gourmet Services Pty Ltd. That was our understanding of who the employer was. We had lodged a bargaining period against Gate Gourmet Services Pty Ltd and we have had negotiations with Gate Gourmet Services Pty Ltd.

PN112

We were advised - and this is my understanding, Commissioner, and I stand to be corrected because I wasn’t part of the negotiations so I’m presenting submissions as best as I’m aware. I haven’t been fully - I would advise that I haven’t been fully briefed on this matter. But as far as I’m aware, we were pursuing an agreement with Gate Gourmet Services Pty Ltd for some time. We were advised shortly before the secret ballot application was filed in a draft document presented not - and this is, we say, significant - not by the union in this matter but by the company that they put a draft document on the table, very late in the negotiations, that named four - the documents have been provided with the affidavit that names the different corporate entities that they say would seek to be covered by the agreement.

PN113

THE COMMISSIONER: Where is this affidavit?

PN114

MR CAPELIN: No affidavit has been tendered yet. I provided it to my friend ahead.

PN115

MR AIRD: It states the corporate entities as Gate Gourmet Services Pty Ltd, Gate Gourmet Services (NSW) Pty Ltd, Gate Gourmet Property Pty Ltd and Gate Gourmet holdings Pty Ltd. My understanding is that that the latter - the latter company being Gate Gourmet Holdings is - the other companies are subsidiaries of Gate Gourmet Holdings. But we’re not in a position to dispute at this stage anyway, to dispute the evidence which is what I understand to be respondent’s position from the affidavit that’s been provided to the union.

PN116

Be that as it may, the only agreement the union has sought is an agreement with Gate Gourmet Services Pty Ltd. Now, my understanding, Commissioner, is we had an approved form of federal agreement with Gate Gourmet Services Pty Ltd, the company, passed on some of those terms and conditions to people employed by some of these different entities. I mean, that, we say, is a matter for the company. And this issue was discussed between we came on in the last proceedings and it was agreed that we would proceed in seeking agreement with Gate Gourmet Services Pty Ltd and only those employees engaged by Gate Gourmet Services Pty Ltd would be covered by the agreement.

PN117

So that’s been the position of the parties. The issue has been canvassed. It may not have been on transcript but it was canvassed. There was an agreed position that the orders were issued essentially by consent the last time they were before you. If we did seek common terms and conditions across those other companies then we’d consider our position about filing a bargaining period with those other companies.

PN118

THE COMMISSIONER: Yes. Mr Capelin, I think we should adduce some evidence, shouldn’t we?

PN119

MR CAPELIN: Sure. Commissioner, if I may call Ms Matvejev, who is the human resources manager.

PN120

MR AIRD: Commissioner, can I just seek a brief adjournment just to see if I can find out where the organiser who’s been involved in these negotiations is. I’m just trying to find out about his whereabouts so I can seek some further instructions in this matter.

PN121

THE COMMISSIONER: Shouldn’t you - wouldn’t you be better off to hear the examination-in-chief before you do that? I don’t expect you to go into your cross-examination until you have an opportunity - perhaps have an adjournment.

PN122

MR AIRD: Thank you, Commissioner.

<MARIA MATVEJEV, SWORN [1.37PM]
<EXAMINATION-IN-CHIEF BY MR CAPELIN

PN123

MR CAPELIN: Commissioner, if I may show Ms Matvejev the document she has - her affidavit.

PN124

Ms Matvejev, is that an affidavit - I have just shown you a document. Is that an affidavit that you have sworn today?---Yes, it is.

PN125

Commissioner, I would seek to tender that affidavit.

PN126

THE COMMISSIONER: Yes.

PN127

MR CAPELIN: I only have a couple of questions in addition, Commissioner.

PN128

Ms Matvejev, in your affidavit you indicated that you have been involved in negotiations for a new enterprise agreement to cover three sites - I don’t think you say you have three sites, but what sites does that agreement propose to cover?---To cover four sites, Brisbane, Sydney, Melbourne and Darwin.

PN129

And the employees the subject of that proposed agreement, what are the names of their employers?---There are four companies. There is Gate Gourmet Services Pty Ltd, Gate Gourmet Services (New South Wales) Pty Ltd, Gate Gourmet Property Pty Ltd and Gate Gourmet Holdings Pty Ltd.

PN130

Have you made the union aware of that fact?---Yes, we did.

PN131

At any point after you’d made the union aware of that fact have they indicated to you that they do not wish to pursue an agreement involving all four companies?---No.

PN132

Commissioner, I don’t have any further questions of the witness.

PN133

THE COMMISSIONER: Yes. Just one second, gentlemen. Yes, do you want an adjournment, Mr Aird.

PN134

MR AIRD: Yes, I would, Commissioner.

PN135

THE COMMISSIONER: We’ll adjourn for - until what time, 2 o’clock?

**** MARIA MATVEJEV XN MR CAPELIN
PN136

MR AIRD: Thanks, Commissioner.

<SHORT ADJOURNMENT [1.40PM]
<RESUMED [2.54PM]

PN137

THE COMMISSIONER: Before we hear from Mr Aird - Mr Capelin, I’m not sure that I know what your case is.

PN138

MR CAPELIN: Commissioner, it’s this: that there are only certain types of industrial action that can gain protection and that industrial action has to be in pursuit of certain types of agreement.

PN139

THE COMMISSIONER: Yes.

PN140

MR CAPELIN: The agreement being pursued in this case is an agreement under section 322(2)(b). Section 322((2)(b) agreements are not agreements which you can take up industrial action in support of. Therefore, you can’t have a bargaining period nor can you then have the next step which is the ballot order.

PN141

THE COMMISSIONER: But the bargaining period is about Gate Gourmet Services Pty Ltd.

PN142

MR CAPELIN: I understand that but then - - -

PN143

THE COMMISSIONER: That’s one company, isn’t it?

PN144

MR CAPELIN: Sure.

PN145

THE COMMISSIONER: Well, what’s the problem?

PN146

MR CAPELIN: The negotiations have been in relation to an agreement unrelated to that bargaining period, related to four companies and an agreement.

PN147

THE COMMISSIONER: Where is that?

PN148

MR CAPELIN: It’s in the documents that are annexed to Ms Matvejev’s affidavit. If you go to - - -

PN149

THE COMMISSIONER: And where does that document come from? I know that it has the number of companies ......

**** MARIA MATVEJEV XN MR CAPELIN
PN150

MR CAPELIN: That’s one of the documents that have been exchanged between the parties in their negotiations.

PN151

THE COMMISSIONER: Is it the document of the TWU?

PN152

MR CAPELIN: It’s the document of the negotiating parties. I think it’s been negotiated between the parties so the drafting - - -

PN153

MR AIRD: We’d object to that submission, Commissioner. It’s not a document in any way generated by the TWU.

PN154

THE COMMISSIONER: Yes. I don’t know - I just don’t understand why we’re here, Mr Capelin, because there’s nothing to this. On the record last time Mr Aird says, “We’re after Gate Gourmet Services Pty Ltd”. That’s what he said.

PN155

MR CAPELIN: On the record - - -

PN156

THE COMMISSIONER: The order says it.

PN157

MR CAPELIN: Commissioner, on the record last time all parties were in agreement as to the nature of the agreement that they were pursuing and it was an agreement that involved four employers, not simply Services.

PN158

MR AIRD: I’d object to that.

PN159

THE COMMISSIONER: Where does it say that? Where do you say that?

PN160

MR CAPELIN: At PN30, Mr Hoolihan - - -

PN161

MR AIRD: I just wouldn’t mind a copy of this transcript because my understanding is that I only became aware that that same day that there was the actual entities at Gate Gourmet.

PN162

THE COMMISSIONER: Yes, said. So proceed.

PN163

MR CAPELIN: The proceedings on the last occasion seemed to continue on the basis that there was an issue in relation to four companies being involved in the agreement. In error, on my submission, it proceeded on the basis that if the ballot order was only made in relation to one of those companies that would cure the problem. My submission is it can’t cure the problem when you’re seeking an agreement that will involve four related corporations.

**** MARIA MATVEJEV XN MR CAPELIN
PN164

THE COMMISSIONER: Yes. And where is the evidence of that?

PN165

MR CAPELIN: The evidence of that comes in the workplace agreement which is annexed to Ms Matvejev’s - - -

PN166

THE COMMISSIONER: Yes. But the difficulty I have is that evidence does not say where that - that’s just a piece of paper. There’s nothing to suggest it was - that is the subject of the TWU’s discussions. It might be your idea, the company’s view.

PN167

MR CAPELIN: The evidence that’s put by Ms Matvejev, and it’s the only evidence you have before you at the moment, talks about her involvement in the negotiations and involvement in negotiations towards a new collective agreement which would have those four parties as the employer parties to the agreement.

PN168

THE COMMISSIONER: Where do the statements - where does the evidence say that?

PN169

MR CAPELIN: At paragraph 2, she states she’s been involved in negotiations for a new collective agreement and then at paragraph 4, the companies - the Gate Gourmet companies relevant to the new union collective agreement are as follows. So it’s the same negotiations. Then she annexes the document as part of those negotiations.

PN170

THE COMMISSIONER: Yes. Well, it’s not all that clear to me. But anyway, Mr Airds, do want examine the witness? Do you want a copy of the - I don’t it’s going to take you very far, the transcript of the last proceedings.

PN171

MR AIRD: I would like a copy but perhaps not right now. I may not require it just at this stage.

PN172

THE COMMISSIONER: Yes.

<CROSS-EXAMINATION BY MR AIRD [3.01PM]

PN173

MR AIRD: Do you have your affidavit with you at the moment?---I don’t.

PN174

Can you go to - can I take you to attachment MM2, Ms Matvejev?---Yes.

PN175

Can you confirm what date is marked there at attachment MM2?---26 March 2007.

**** MARIA MATVEJEV XXN MR AIRD
PN176

And the correspondence refers to agreements currently in place at Sydney, Darwin and Brisbane?---That’s right.

PN177

Are you aware - you say the agreements are in place between Sydney, Darwin and Brisbane. Are you aware who the parties were to those agreements in place in Sydney, Darwin and Brisbane?---The legal entities? Yes.

PN178

Who were those agreements - who were the parties to those agreements?
---There’s Gate Gourmet Services, Gate Gourmet Property, Gate Gourmet Holdings and Gate Gourmet Services New South Wales.

PN179

Now, I’ll put it to you that that’s wrong, Ms Matvejev, and I’m going to hand you up a document now.

PN180

Commissioner, I just advise that at this stage I haven’t - we may seek some further documents. I actually have the old Sydney agreement. I don’t have in my position at this stage the Darwin and Brisbane agreements and I don’t have spare copies. So I just ask that this be handed up to Ms Matvejev.

PN181

Are you able to identify that document, Ms Matvejev?---Yes.

PN182

Is that the Sydney agreement, Ms Matvejev?---It’s the - the agreement covers all sites except for Darwin.

PN183

Okay. And who is listed in the title as the party to the agreement?---The title reads “Gate Gourmet Services Pty Ltd Enterprise Agreement 2004”.

PN184

And there’s no reference in that document to any of the other entities that you have named is there, Ms Matvejev?---I don’t believe so, no.

PN185

Would you accept the position that the only - that that agreement was binding on the Transport Workers Union of Australia and Gate Gourmet Services Pty Ltd?---Technically I believe that would be correct. But it does refer to employees employed in those other locations within the classification and - - -

PN186

The parties to the agreement are known as Gate Gourmet Services Pty Ltd and the Transport Workers Union of Australia, that’s correct, isn’t it, Ms Matvejev?
---Yes.

**** MARIA MATVEJEV XXN MR AIRD
PN187

And that was the situation also at Darwin Airport, wasn’t it, Ms Matvejev, to the best of your knowledge?---I’d have to have a look at the agreement.

PN188

I just wanted to refer you to the bargaining period that was sent to your attention. I might just have that document - Commissioner, you have it at attachment A to the secret ballot application.

PN189

THE COMMISSIONER: Yes, I know. Thank you.

PN190

MR AIRD: Can you read over that attachment A - and you recall seeing that correspondence, Ms Matvejev?---Yes, I do recall.

PN191

And what date is that correspondence dated?---15 June 2007.

PN192

That’s after the date of the earlier correspondence that we previously identified, you’d accept that? Well, I think it’s in evidence?---Yes.

PN193

Ms Matvejev, can you identify who the union named as the other party that it sought to make agreement with?---I don’t believe it says the other party. It says:

PN194

Transport Workers Union gives notice to seek to make a union collective agreement with your company.

PN195

Perhaps if you’d turn the page, it might .....?---Yes, okay:

PN196

Other negotiating parties, Gate Gourmet Services Pty Ltd.

PN197

And does it anywhere in that document identify any of the other entities that you refer to in paragraph 4 of your affidavit in these proceedings?---I don’t believe so, no.

PN198

Have you received any other correspondence, any other written correspondence from the union that puts the company on notice that it seeks to make an agreement with those other entities that are identified in paragraph 4 of your statement?---No, we haven’t.

PN199

I don’t have spare copies to tender these, Commissioner, but I would seek - I should have done that earlier. We would seek to have the original agreement that was shown to the witness and was identified as the agreement covering all the sites other than Darwin, tendered as an exhibit, Commissioner.

**** MARIA MATVEJEV XXN MR AIRD

EXHIBIT #TWU1 ORIGINAL AGREEMENT COVERING BRISBANE, SYDNEY AND MELBOURNE SITES
EXHIBIT #GG1 AFFIDAVIT OF MS MARIA MATVEJEV

PN200

MR AIRD: We do have a spare copy. I might hand that up to you, Commissioner, if I may. Can I just approach the witness to hand up another document.

PN201

Commissioner, what I’m suggesting the document is - even it’s to identify but what I’m suggesting the document is is an early draft of an enterprise agreement for negotiations for a new enterprise agreement. The starting point for those negotiations was the old collective agreement and then it had strike out divisions and some changes amended to the document.

PN202

Now, can I ask, Ms Matvejev, do you agree with that position that that is the draft document that was used in the negotiation process?---It probably was a draft document but I can’t say whether it was the one that we presented. We did initially start off with - through negotiations with an agreement, the Gate Gourmet Services agreement, and I understand there was various versions of it that was - whether it was work-choiced or whether there were changes made to it during the negotiations. So it may well be.

PN203

Who does it identify as the - that’s as far as you’re prepared to take it, that this may be that when you accept that it is a document that was used during the course of negotiations?---Without reading it word for word I guess - I wouldn’t be 100 per cent sure but it does appear to be in the form that we have used documents in the - during the negotiations.

PN204

I’ll deal with that document through another witness, Commissioner. Can I hand you up another document that I’m suggesting was a draft document used during the negotiations? Would you accept, Ms Matvejev, that this is a draft document used during the negotiations?---It does look like one that was used in our negotiations, yes.

PN205

Who is listed a part to the agreement in this document, Ms Matvejev?---Gate Gourmet Services Pty Ltd and the Transport Workers Union.

PN206

So I would put it to you that the Transport Workers Union was simply seeking to negotiate an agreement as they had done in the past with Gate Gourmet Services Permanent Ltd. That’s the case, isn’t it, Ms Matvejev?---No, the agreement that we were negotiating was to cover all employees of the individual sites.

**** MARIA MATVEJEV XXN MR AIRD
PN207

But the applicant - the Transport Workers Union never put that to you, did they, Ms Matvejev?---They were negotiating agreement to cover employees on each of those sites and employees within each of those sites were employed by - - -

PN208

And from basis would the union not assume that was the same basis that had occurred in the past with previous agreements that have covered Gate Gourmet Services Pty Ltd?---I don’t know.

PN209

And isn’t it reasonable, given that the correspondence that you have just identified in the notification of the bargaining period that they would assume that?
---Possibly. I can’t say.

PN210

And you have confirmed that at no stage did you receive any written correspondence from the union that notified you that they sought to have an agreement with Gate Gourmet Holdings Pty Ltd?---No, the only document I got was something from the union saying that they wanted to pursue a national - one agreement that covered all sites in Australia.

PN211

And that was the 25 - from the document that you identified dated March that’s attached to MM2 to your statement?---No. I believe that’s the one in my affidavit that - yes, it was, sorry. You’re right.

PN212

And that preceded, as we have confirmed with the notification of bargaining period that you subsequently received?---Say that again, sorry?

PN213

And that - but I don’t think it’s contested. That preceded the notification of bargaining period that you subsequently received identifying Gate Gourmet Services Pty Ltd as the company?---As the company.

PN214

And in that notification of bargaining period did it also identify that it sought to make an agreement with Gate Gourmet Services Pty Ltd at all sites within the Commonwealth of Australia?---It did, yes.

PN215

No further questions, thank you, Commissioner.

PN216

THE COMMISSIONER: Ms Matvejev, MM1, where did that document come from?---That was the document - we were working through two separate agreements, one that covered Darwin and one that covered all the other different sites, and during the negotiations we were working off both. This was the consolidated agreement that was put to the committee in one of the last agreements - one of the last negotiations which pretty much consolidated everything into one document.

**** MARIA MATVEJEV XXN MR AIRD
PN217

Can you point to the agreement?---The company.

PN218

Thank you. Yes, Mr Capelin.

<RE-EXAMINATION BY MR CAPELIN [3.12PM]

PN219

MR CAPELIN: Ms Matvejev, you were asked towards the end of my friend’s questions on what basis would the TWU assume it was negotiating with other employers. Do you recall the question? I don’t know if I have that word for word but it was to that effect. Do you recall that question?---Yes.

PN220

Could you let me know whether there was a basis that the TWU, during the course of negotiations, would be aware that the agreement it was seeking was with other employers?---The employees in the committee are all employed by different legal entities. I would assume at some point there could have been discussion. There were discussions with payslips and so on that were being viewed during the negotiations so that could have been at a time, if that was the case. I also do recall when the employees were transferred into different legal entities the union was made aware of it. This was some - a fair few years ago.

PN221

Were there any communication - you have indicated there was no correspondence with the union on this issue, the communications with the union on this issue?---My understanding is back in 2000 when this happened there was but I’m not aware of any. I haven’t actually spoken to anyone in relation to this.

PN222

What about - was there any communications in the course of the negotiations?---Yes, in the final - not the final, the last couple of negotiations, when this agreement was put to the committee, there was actually discussions. When we read through the whole agreement that stated clearly the reasons why the company and the employer had to be listed as such.

PN223

Did the TWU indicate a desire not to have all employer parties as part of the agreement?---No.

PN224

Did they state anything of that nature?---No. They said that they understood.

PN225

MR CAPELIN: No further questions, Commissioner.

**** MARIA MATVEJEV RXN MR CAPELIN
PN226

THE COMMISSIONER: Yes, thank you, Ms Matvejev. You can go.

<THE WITNESS WITHDREW [3.15PM]

PN227

MR AIRD: I will call Mr Pieri to the stand, thanks, Commissioner.

<MICHAEL PIERI, AFFIRMED [3.16PM]
<EXAMINATION-IN-CHIEF BY MR AIRD

PN228

MR AIRD: Mr Pieri, can you just state your name and address for the Commission?---Michael Pieri, (address supplied).

PN229

Can you state - well, where are you employed, Mr Pieri?---I’m employed for the TWU and I work at the airport generally and also the Sutherland area.

PN230

Do you have responsibility for members employed at Gate Gourmet?---Yes, I do.

PN231

Was it - were you responsible for identifying the corporate entity when the bargaining period was lodged against Gate Gourmet?---I was. What I understood that I was dealing with was it wasn’t a corporate entity, it was more - right from the word go it was Gate Gourmet Services.

PN232

I just want to hand up Exhibit TW1, the exhibit that was the ......

PN233

THE COMMISSIONER: Yes.

PN234

MR AIRD: Was it your understanding, Mr Pieri, that the employees at Gate Gourmet were engaged under the terms of that agreement, Mr Pieri?---Yes.

PN235

And who was listed - can you just identify again who the other party is to - I won’t - I’ll withdraw the question. Did negotiations commence - I’ll just actually hand you up another document. Are you able to identify what that document is, Mr Pieri?---Yes. It’s one of the working agreements that we were working on as - with the committee and with Gate Gourmet as part of the negotiations for the new agreement.

PN236

Can you tell the Commission who is identified as parties to the agreement in that document?---Yes. Gate Gourmet Services Pty Ltd and the Transport Workers Union.

PN237

Can I hand up, Mr Pieri - was that another draft document prepared during the course of negotiations, Mr Pieri?---Yes.

PN238

Can you identify who the parties are to this document?---Yes, it was Gate Gourmet Services Pty Ltd and the Transport Workers Union.

PN239

And it’s also the case, isn’t it, Mr Pieri, that these draft documents were generated by Gate Gourmet, they weren’t generated by the union, is that correct?---That’s correct.

**** MICHAEL PIER XN MR AIRD
PN240

Did you in these negotiations at any stage ever generate documents that indicated that you were seeking - - -

PN241

MR CAPELIN: You’re in .....

PN242

MR AIRD: Did you provide any written correspondence to the company during the course of these - can you inform what correspondence, if any, you provided to the company during the course of the negotiations?---The only letter that was sent from me was the letter to say that we will have a national agreement. It was on behalf of the TWU, that was including then Sydney, then Darwin. That’s the only document. Every other document was provided by Gate Gourmet.

PN243

I have no further questions, thanks, Commissioner.

PN244

THE COMMISSIONER: Mr Capelin?

<CROSS-EXAMINATION BY MR CAPELIN [3.21PM]

PN245

MR CAPELIN: Mr Pieri, in your initial answer you indicated words to this effect: that you were responsible for negotiating with Gate Gourmet and you thought from the start you weren’t dealing with a corporate entity, it was GG Services, so whatever companies were encapsulated by that term “GG Services”, that’s who you thought you were dealing with?---Absolutely. I didn’t realise there was more than one company. I thought it GG - the Gate Gourmet Services, which is who I was dealing with right from the word go.

PN246

At a point in the negotiations you became aware that there was more than one company that you were to be dealing with?---It was on the very last meeting that we had. I think it was 28 July and I thought it was - unfortunately I thought it was put in there as per Work Choices. As far as ever discussions - and it’s not just myself that it was negotiated, it was a committee so it’s a committee of workers, they all thought they were under Gate Gourmet Services as well.

PN247

But you accepted that that was the agreement you were now negotiating?---No. No, I didn’t accept that that was the agreement but I accepted that that was what we were going through on that day. Okay, it was brought up on the very last negotiation so up until that day it was Gate Gourmet Services Pty Ltd and the last negotiation that was sent to me it had the other four. The discussions went along the lines of very much towards the end so we needed to continue,. It was one of those - we’ll flick through and we’ll have a look at it.

**** MICHAEL PIER XXN MR CAPELIN
PN248

You didn’t oppose there?---I didn’t, no.

PN249

You were seeking an agreement covering all sites?---Yes.

PN250

Previously there were some separate agreements, two agreements I believe?---That’s right.

PN251

You became aware there was a mix of employers in the last meeting, I think was your evidence?---I know there was more than one name, it wasn’t just Gate Gourmet Services.

PN252

I don’t think I have any further questions.

PN253

THE COMMISSIONER: Mr Aird?

PN254

MR AIRD: No, I have no further questions.

PN255

THE COMMISSIONER: Thank you, Mr Pieri. You’re excused.

<THE WITNESS WITHDREW [3.23PM]

PN256

THE COMMISSIONER: Yes, Mr Capelin?

PN257

MR CAPELIN: Commissioner, my submissions remain the same as they were at the start. I think we have established through the evidence that has been presented by the two witnesses that there is an agreement being sought to be negotiated. That agreement will involve more than one related corporation. In those circumstances, it’s not an agreement of a type that could be sought through the use of industrial action, certainly not through the use of protected industrial action as acknowledged by the legislation.

PN258

If an agreement that initially - sorry, if a bargaining period was initially commenced because there was an initial belief that the agreement would involve one party when those facts changed, it could not be proceeded with to the next stage of having a ballot order made where it was clear that the agreement was going to become one that involved more than one entity and those entities were related corporations. And this is because of the operation of 423(2)(b).

PN259

THE COMMISSIONER: (1)(b).

PN260

MR CAPELIN: (1)(b), thank you, Commissioner. Therefore, the necessary prerequisites to the ballot order do not exist and therefore it’s not appropriate to make the ballot order, and having made it, it’s appropriate to revoke the order made on 12 September for the same reasons it’s not appropriate to extend the time for the ballot paper. They are my submissions.

PN261

THE COMMISSIONER: Yes. I don’t need to trouble you, Mr Aird. Thank you, Mr Capelin.

PN262

In my view, the relevant consideration under section 423(1) is what the person, here the TWU, was wanting to do. In my view, it was trying to make an agreement. All the documentary evidence indicates that that agreement was with Gate Gourmet Services Pty Ltd. The evidence of Mr Pieri is nothing more than at the last meeting there was a suggestion that the Gate Gourmet entity had perhaps three or four personalities. That, in my view, did not change the fact, and it remained the situation that the TWU has, from the beginning, and continues to be, in my view, and unchanged by anything that’s before me, that it somehow moved away from seeking agreement with Gate Gourmet Services Pty Ltd and is pursuing it with persons who would otherwise - could be said to fall under 423(1)(b).

PN263

For that reason the objection to the proposition that the order be revoked is not accepted by me and I don’t propose to do so. I do, however, based on the earlier application and the view of the company, propose to issue an order and that order is that the order issued in the above matter, that is, in this matter, on 12 September 2007 be varied as follows: by deleting clause 7.3 and inserting new thereof the following 7.3, voting is to close on Friday, 5 October 2007 and votes must be received by 10 am on that day.

PN264

On that basis these proceedings are adjourned.

<ADJOURNED INDEFINITELY [3.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARIA MATVEJEV, SWORN PN122
EXAMINATION-IN-CHIEF BY MR CAPELIN PN122
CROSS-EXAMINATION BY MR AIRD PN172
EXHIBIT #TWU1 ORIGINAL AGREEMENT COVERING BRISBANE, SYDNEY AND MELBOURNE SITES PN199
EXHIBIT #GG1 AFFIDAVIT OF MS MARIA MATVEJEV PN199
RE-EXAMINATION BY MR CAPELIN PN218
THE WITNESS WITHDREW PN226
MICHAEL PIERI, AFFIRMED PN227
EXAMINATION-IN-CHIEF BY MR AIRD PN227
CROSS-EXAMINATION BY MR CAPELIN PN244
THE WITNESS WITHDREW PN255