BP2008/2010, Transcript of Proceedings [2008] AIRCTrans 60 (14 February 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18066-1

COMMISSIONER WILLIAMS

BP2008/2010 BP2008/2011 BP2008/2012

s.451(1) - Application for order for protected action ballot to be held
Transport Workers’ Union of Australia-New South Wales Branch
and
Transit Systems WA Pty Ltd t/as Swan Transit Riverside
(BP2008/2010)

PERTH

2.24PM, FRIDAY, 01 FEBRUARY 2008

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

PN1

MR T BORGEEST: I appear with MR M KNOULES, who is an organiser of the applicant union, and for my part I seek leave to appear in that capacity.

PN2

MR S DOWD: I seek leave to appear for the three employees, Swan Transit Services Pty Ltd, Transit Services South Pty Ltd and Transit Services Riverside. I consent, of course, to my friend appearing for the applicant in this matter and I can't see at the bar table, and I do not know whether Mr Jones ought sit at the bar table ..... sir, but he's the Manager of the employer bodies.

PN3

THE COMMISSIONER: Mr Dowd, if I can help you, yes. In the rear of the court I have Mr Joe Jordan, Mr Bruce Buchanan and Mr Brian Thompson and they're all nodding. I didn't make their names up.

PN4

MR DOWD: Thank you, sir.

PN5

THE COMMISSIONER: Sorry, Mr Dowd, just one issue. I understood you to say one of the three employers was Transit Services Riverside?

PN6

MR DOWD: Unless I've got that wrong.

PN7

THE COMMISSIONER: That's what I just wanted to clarify because what I have is for application 2008/2010, it's Transit Systems WA Pty Ltd trading as Swan Transit Riverside.

PN8

MR DOWD: Yes, I'm sorry, that's my understanding.

PN9

THE COMMISSIONER: That's fine. That's helpful, thank you, Mr Dowd. I take it that neither side is opposing leave to the other side to be represented by counsel?

PN10

MR BORGEEST: My friend has indicated, and I'm in the same boat.

PN11

THE COMMISSIONER: Leave is granted to both Mr Borgeest and Mr Dowd to appear. Yes, Mr Borgeest, this is your application?

PN12

MR BORGEEST: Thank you, Commissioner. Just a couple of housekeeping things first. These are applications that were filed on 30 January and served on that day. During today, Commissioner, we've provided by email some documents to the Commission and to the representative of the respondent. There's a document which is an outline of evidence of Mick Knoules together with some attachments which comes to some 158 pages, firstly. Secondly, we circulated a document called an Outline of Applicant's Contentions of some seven pages and we also provided draft forms of order. One draft order in respect of each of the three employer companies and I just wanted to inquire firstly of the Commission and also of the respondent that those documents had been well received.

PN13

THE COMMISSIONER: Well, certainly I can confirm that I have received all of those documents. Mr Dowd, have you received those documents?

PN14

MR DOWD: It seems that I haven't received the Contentions. I've received the draft orders and I've received the outline of evidence of Mr Knoules and the annexures, but I don't seem to have the Contentions. No doubt my friend is going to talk to them.

PN15

MR BORGEEST: Yes. They were only really a list of the requirements of the Act and I really won't rely on them. Commissioner, as far as housekeeping is concerned, we also received from your associate the minimum timetable that had been provided to this Commission by the Electoral Commission. We understand that's expressed not to be a recommendation but something to assist the Commission and the parties and were the Commission to make orders, we can certainly indicate for our part that there seems to be no difficulty with that proposed timetable.

PN16

MR DOWD: Can I just indicate that although I can hear you clearly, Commissioner, I'm having a little bit of trouble hearing my learned friend, he comes in and out. I wonder if you'd be kind enough to ask him to perhaps stand a little closer to the microphone.

PN17

THE COMMISSIONER: Mr Borgeest, it might actually be easier if you remain seated. That way I think the microphone is closer to your mouth.

PN18

MR BORGEEST: Mr Dowd, is that any better?

PN19

MR DOWD: That's wonderful, yes, all clear.

PN20

MR BORGEEST: Commissioner, I can say that there's been some very brief discussions between myself and my friend and we've been talking about two issues. Overall there doesn't seem to be a great deal of heat between the parties as to the applications. I wouldn't want to put it higher than that. What I would seek to do is to firstly just indicate just two issues that have been raised with us by the respondent and then seek for some indication from the respondent about whether really those are the only issues that ought be resolved and otherwise there's no quarrel with the applications, if that would affect how expansive I might need to be about the evidence and contentions.

PN21

Commissioner, the question has been raised as to the clarity of the question to be placed on the ballot firstly and secondly, there's an issue concerning - I'll just put broadly the identity and relationship of and relationship between the three employer companies and what consequences that might have for the application. So if my friend is able to indicate whether their position is that they do wish me to address you on all of the matters or simply focus on the concerns that they have identified, that might assist. It's a housekeeping matter.

PN22

THE COMMISSIONER: Well, Mr Borgeest, I may need you to address me on some of the matters because I have to be satisfied. There's a minimum of the statutory requirements that have been met. But, yes, Mr Dowd, are you able to help us? Mr Borgeest has identified the two areas he believes are of concern to yourselves. Are there additional issues?

PN23

MR DOWD: Thank you, sir. Can I take I can remain seated also?

PN24

THE COMMISSIONER: Yes.

PN25

MR DOWD: We're all mindful of the provisions of section 461 ..... I guess, sir, but the two issues that I did raise with my friend are the two he has outlined in particular, the inter relationship with the three employers and whether some evidence is needed about that, so that you can satisfy yourself that the applicant is not engaged in patent bargaining under 461(1)(c) and I think in view of the proposed orders that my friend has prepared and in particular in view of - I think that's order 3.1, the question about the clarity of the proposed question becomes somewhat less significant than it may have been.

PN26

So essentially what my friend says is right. There are two issues that are identified. One perhaps less than the other two.

PN27

THE COMMISSIONER: All right.

PN28

MR BORGEEST: Commissioner, can I just give you an overview, a very brief overview of how the parties have come to where they are not and then I'll ask Mr Knoules to adopt as his evidence the outline that has been provided and then make some submissions. Speaking broadly, Commissioner, the union is bargaining with the Swan Transit group of companies which have some contracts to provide bus services in metropolitan Perth on behalf of its members who are bus drivers.

PN29

Previously the companies have had arrangements which included the collective agreements which are identified and attached to Mr Knoules' outline as well as a number of AWAs. We understand all of those instruments to have passed their nominal expiry date at the end of last year and since September of last year there has been a structured orderly cooperative frank set of negotiations in meetings which are properly minuted by the employer and have involved a narrowing of issues between the parties over time.

PN30

Significantly over that time there was a change of position on the part of the employer no longer pressing to have a suite of AWAs alongside any collective agreements. The parties are now simply negotiating around a proposal to have a single union collective agreement in place and you would see from the minutes, and it's certainly Mr Knoules' evidence that there's been no accusations exchanged between the bargaining parties of bad faith or poor negotiating conduct. There've been proper business-like professional negotiations.

PN31

The negotiations have included not only the union and the representatives of the Swan Transit Group, but also quite a sizeable number of representatives of employees from the various different depots from which the different companies operate their services and so it's been quite a significant undertaking, the series of meetings. Where things have got to, Commissioner, is essentially a fairly unsurprising difference on the bottom line. The claim on the part of the union and the employees is for, putting it fairly loosely, for some increase to the base rates and the position of the companies has been expressed to be, we're captive to our client.

PN32

We have contracts with the public transport authority and those contracts don't provide for us to be paid enough to meet your claim and so back on the union and employee side of the table, the response has been, well, our claim is our claim. How you fund it is your issue, but we want to talk about our claim. And that's really the point at which the parties have got to and the union has taken the step now of filing these applications and the company has taken a different step of indicating that it's going to put a draft agreement just out to the vote of the employees independently of the negotiating group.

PN33

Equally legitimate the tactics that are taken, as I say, there's been no accusations of bad faith either way. So against that background I would ask Mr Knoules to be sworn so that he can adopt the statement and I'll just take you to a small number of things in that, Commissioner.

<MICHAEL ALAN KNOULES, SWORN [2.38PM]
<EXAMINATION-IN-CHIEF BY MR BORGEEST

PN34

MR BORGEEST: Mr Knoules, for the transcript, can you please repeat your full name and address?---Michael Alan Knoules, (address supplied).

PN35

What is your occupation?---Organiser for the - - -

PN36

MR DOWD: Excuse me, Commissioner, I'm unable to hear Mr Knoules, I'm sorry.

PN37

THE COMMISSIONER: Just a moment. We'll re-organise some microphones?
---Is that better?

PN38

MR DOWD: Thank you very much, yes.

PN39

MR BORGEEST: Your occupation, Mr Knoules?---Organiser for the Transport Workers' Union, WA.

PN40

Cab I hand you this document, please. Can you please tell the Commissioner what I've just handed you?---It's an outline of evidence of myself and attachments for an application for an order for a protected action ballot to be held.

PN41

Now, have you seen this document before?---Yes.

PN42

And were you involved in preparing it through giving instructions to me?---That's correct.

PN43

And are the statements in your outline, from paragraphs 1 through to 21, true and correct?---They are.

PN44

And the outline refers to some documents which are then attached behind it, is that right?---That's correct.

PN45

I'll tender that outline and its attachments, Commissioner.

PN46

THE COMMISSIONER: Thank you.

EXHIBIT #A1 OUTLINE OF EVIDENCE OF MICHAEL ALAN KNOULES AND ATTACHMENTS

PN47

MR BORGEEST: Mr Knoules, can you describe the manner in which the negotiating meetings, which are referred to in your outline, can you describe the manner in which those meetings have been conducted?---Very cordial. There's been frank discussions throughout the whole process, been involved in both committee meetings, AWA and EBA. AWA meetings I think up till I think the end of October, towards the end of October was the last time I was involved with those meetings, but since - after that date I think we had EBA meetings and then since the beginning of this year we started collective meetings with both representatives of both the AWA and EBA committees come together. So there's a representative of the workforce of 18 driver reps, both union and non union, involved as the committee, ourselves and the company and we've had frank and open discussions throughout.

**** MICHAEL ALAN KNOULES XN MR BORGEEST
PN48

You've referred to AWA meetings as different from meetings you've had recently. What was the difference between the different sets of meetings?---Well, with Swan Transit it's unique where you've got the two types of agreements, both collective and AWA within the one company, the group of companies and we've been party to those negotiations for the last couple of rounds for both sides - sorry, for the AWA in regards to all the negotiations in recent times. But with the changes at the Federal election last year and so forth the company have decided to come through on a one collective agreement as of the beginning of this year, so the parties come together as a true representation of the whole workforce and we've moved on from there to where we are now.

PN49

How does it get decided when these meetings will be?---It's by agreement between the company and ourselves.

PN50

Does it happen at the meetings or do they contact your separately to try and set them up?---No. We - usually at the conclusion of the meeting we decide when we're going to meet next unless there's - I think on a couple of occasions we're going to wait for answers or something then we agree by a phone call between myself or Joe Jordan and we make an appropriate date in time.

PN51

Have the meetings involved either side considering what the other says and then responding to it?---Yes. That's been in focus through this. I mean, there's been claims and counter claims throughout.

PN52

So throughout these meetings you would say that the company has considered and responded to what the union and the employees have said?---Yes. As well as what we have to - what the company have put forward as well.

PN53

You say that the union and the employee representatives have considered and responded to issues raised by the companies?---Yes, yes.

PN54

When we're talking about the companies, is there generally - how have they been represented? Has it been one person for each of the companies or has it been some other arrangement?---No. Well, the three management that are here in the Commission today attend each of the meetings. I think only Brian Thompson - I think he's missed one that I can recall, but Joe Jordan normally chairs the meetings and Joe directs and does all the talking basically for the company in respect to all the negotiations.

**** MICHAEL ALAN KNOULES XN MR BORGEEST
PN55

What position or responsibility do you understand Mr Jordan to have?---He's, as I understand it, overall manager in regard to any contract dealings with the company and area manager for, I think it's Swan Transit Services.

PN56

During the negotiations has it ever been - withdraw that. Have representatives of the company ever complained about the unions or the employees adding or withdrawing items for discussion at strange times or anything like that?---Not that I can recall. I mean, there's been submissions put forward by representatives from different depots and some of those were quite large in respect of a lot of the questions and answers that have been answered, like a survey type thing. We done a survey of our members and actually it was spread out in the non members' section as well, which gave us an idea of what the understanding of the workforce was in respect to basically the wages' position and where they stood on the casual issue and the duration of the agreement were the main focus of those questions.

PN57

Can I take you now to 17 January. That's the last meeting for which you've provided the Commission with a copy of the minutes. Can you tell the Commission broadly what the difference was between the position of the union and the employee representatives for the one part and the companies on the other part. What was the actual difference between you by that time?---It was basically those four key points was the remuneration, the casual loading, the spread shift starting before 6 am and the duration of the document out to five years. That was the sticking point and the - basically the request on the company was to look at the remuneration side of things and I think from that day to then we advised the company that we would proceed to make this application. Then subsequent to that we've had another meeting which I don't have any minutes for, whereas the company outlined - well, we had - outlined their position in respect to a make up from the 4.11 per cent that the AW - sorry. The Australian Average Weekly Earnings Index paid from January this year which - in respect of 4.11 per cent that they get reimbursed back from the State government, or the PTA, they've made an offer to make that up to 4.5 per cent, which basically equates somewhere between eight and 10 cents an hour to the workforce, and that was rejected by the committee as such. There was further negotiation on this day in regards to some tidying up of the agreement in respect to some of the clauses. That was done. But overall it was - when we finished the conclusion of the meeting it was said that the company are going to go forward with a secret ballot of the document as it stands in respect of what the company are proposing, but I don't have the minutes, but it was said quite clearly to the company that that's fine for them to go forward and do that, but they do it without the support of the committee as a whole and the TWU.

**** MICHAEL ALAN KNOULES XN MR BORGEEST
PN58

I don't have any further questions for you, Mr Knoules, but if you stay there we'll see if anyone else does?---Okay.

<CROSS-EXAMINATION BY MR DOWD [2.48PM]

PN59

MR DOWD: Just on one topic. Mr Knoules, you're aware, are you not, that the union served initiation bargaining period notices on the three separate companies that Swan Transit Services South, Swan Transit Services and the Swan Riverside company?---That's correct, back in October last year.

PN60

And then on 13 January of this year the application for a protected ballot order was served on each of those three companies?---That's correct.

PN61

That's correct?---Yes.

PN62

Now, you gave some evidence about the people who attended the negotiations for the bargaining committee meetings and you said that they were Messrs Jordan, Buchanan and Thompson, from memory?---That's correct.

PN63

And each of those individuals is representing one of the entities, is it not, that's why the application for protected ballot order, for instance, was sent to Mr Bruce Buchanan of Services South, Mr Jordan of Services and Mr Thompson of the remaining at Riverside?---Yes, because they're the appropriate area managers.

PN64

And I think you said that the extra function of these meetings of Mr Jordan form, if indeed it is an extra function, is to chair the meetings, is that right?---Yes. Joe chaired the meetings, yes.

PN65

I don't have any further questions of this witness, thank you.

<THE WITNESS WITHDREW [2.50PM]

PN66

MR BORGEEST: Commissioner, the Commission has before it three applications in relation to three bargaining periods. One bargaining period notified or initiated with respect to each company on 12 October, so the relevant bargaining periods commenced to operate from 19 October. The bargaining and negotiations that have been described in the evidence of Mr Knoules span from prior to that time from 4 September before the meetings commenced and then they've continued regularly through into October, past the 19th, which is the commencement of the bargaining periods and up into January.

PN67

So with respect to each of the applications for a ballot we say there's a relevant underlying bargaining period and in that bargaining period the applicant has genuinely tried to reach agreement. The genuineness of the attempt to try during the bargaining period and the fact that the applicant is continuing to try we say is plain from the company's own documents, from the minutes of the meetings which demonstrate clearly, as I said in the opening, an orderly and professional effort, a lot of investment of time and effort from a very large number of people to very closely consider terms of different proposals.

PN68

As Mr Knoules told you, and without a suggestion of challenge, they were professional business-like meetings where there was no accusation of bad faith on either party. The applicant has not agreed to the most recent position of the company. The company has not agreed to the most recent position of the applicant and its employees as articulated in these meetings, but nothing about that affects the Commission's assessment as to whether the applicant is genuinely trying and has genuinely tried to reach agreement during the bargaining period.

PN69

The test for whether a party has genuinely tried and is genuinely trying all focus on the preparedness of the party to consider what is said to them by the other negotiating party. It is not a focus on the particular positions or claims made from time to time. It is not a statutory injunction against hard line bargaining. It draws attention to the preparedness to consider matters and what we see in the minutes is evidence of continually returning to the topics addressing the subject matter of proposed agreements together, identifying what matters need further discussion, exchanging information and stating positions. But without going to every page in the minutes, that's certainly, on our submission, just a fair overview of that process and consistent with the general evidence that Mr Knoules gave you a short time ago.

PN70

The applicant of course is an appropriate applicant. If the relevant bargaining period has been initiated by an organisation of employees then that organisation may apply to the Commission under section 451. That's the test in 451(3). So as an initiator of a bargaining period the TWU is an appropriate applicant for this order. Going to the contents of the application itself, Commissioner, can I ask you to perhaps look at the first one which is with respect to Swan Transit Services South Pty Ltd.

PN71

That's the application which relates to bargaining period 112 of 2007. Does the Commission have that application in front of you?

PN72

THE COMMISSIONER: I do, yes.

PN73

MR BORGEEST: Turning to the second page, that's where really the important contents are. At the top of the second page is a statement of the question and you'll see essentially, Commissioner, that the description of the action proposed to be included in the ballot question is strikes and rolling stoppages of work. That's, with respect, Commissioner, a clear and straightforward statement of ordinary industrial relations concepts that would be certainly not understood by the parties but they're terms of common and plain usage. The test for an appropriate question is to do with the employees' ability to understand what kind of action they are being asked to authorise and on any view, Commissioner, that language would satisfy that test..

PN74

The Act requires the types of employees to be balloted be identified and that's stated there. It's confined to persons who are members or eligible to be members of the union and you will see from Mr Knoules' statement that he's extracted the relevant part of the rules of the union which embrace the bus drivers who have been the subject of the negotiating and whose representatives have been participating in the meetings. This is at paragraph 4 of Mr Knoules' outline. It's persons employed in the transport of persons or passengers in vehicles. That's the limb of the union rule which embraces the bus drivers, fairly straightforward identification of those members.

PN75

The union has sought that the Electoral Commission serve as the ballot agent and then, Commissioner, attached to the application are the various matters required to be attached, the notices initiating a bargaining period, the particulars which accompany that notice, the statement of authority confirming that the application was authorised and a declaration consistent with the requirements of the regulations.

PN76

All of those matters are satisfied with respect to each of the three applications but I do want to draw your attention to one matter concerning this application and one of the others. I've been speaking, Commissioner, of the bargaining periods that were initiated in October. Recently, as is explained in Mr Knoules' evidence, there were some amendments just made to the particulars that are set out in those notices initiating bargaining periods and the amended versions are included in
Mr Knoules' material at attachments 6 and 7. Those amended versions were attached to the applications for Swan Transit Services South and for Swan Transit Services. Those aren't new bargaining period notices, those are just some amendments to what was served in October.

PN77

The difference, Commissioner, is in the list of all the depots. Both notices for those two companies originally had a list of depots which included their own and that of the other company so the amendment just makes it clear which different depots relate to which company. If you open Mr Knoules' evidence bundle at page 37, you'll see that for the original notice to initiate a bargaining period for Swan Transit Services South there's listed some eight depots. The error that was being corrected by the amendment was to remove from that list the depots that are actually for the other company, Swan Transit Services. That's the explanation for the form of the bargaining notice which appears as attachment B to the application that I'm taking you to.

PN78

Commissioner, the Commission must be satisfied of three things under section 461, firstly, that during the bargaining period the applicant genuinely tried to reach agreement; secondly, that the applicant is genuinely trying to reach agreement and thirdly, that the applicant not is engaged in pattern bargaining.

PN79

I've addressed you briefly on the genuinely trying to reach agreement and I don't apprehend that there is any great dispute about that and I'll return to that in reply if there are particular matters of concern that the respondent raises, save to confirm that we do rely on the minutes prepared by the company, adopted by all those in the meeting as demonstrating genuine attempts to reach agreement by all concerned. .

PN80

The Act requires that the Commission be satisfied that the applicant has not engaged in pattern bargaining and that requires consideration of section 421 which is where that concept is defined. The fact is that there are negotiations happening here with three separate corporations. Mr Knoules has given evidence that he understands them to be all within the one corporate group of common ownership and with a common management. Notwithstanding that, there are three separate corporations and one of the matters that was being explored in discussions between my friend and myself before the commencement of the hearing was whether the pattern bargaining problem was avoided by considering them as a single business, given that the parties are now negotiating towards a single collective agreement across all three companies and all of their relevant employees. That's where negotiations have reached.

PN81

If that's the form of negotiation they're taking, if that's the form of negotiation they're seeking and if they can be considered to be a single business for the purposes of the Act, then that avoids any question about pattern bargaining. It avoids any question about pattern bargaining because the parties at the time the application is made, are no longer bargaining for a series of different agreements, they're only bargaining for the one.

PN82

To resolve that question really requires a close analysis of whether they can be regarded as a single business which in turns requires that they be related corporations within the meaning of the corporations law and we haven't put evidence before you about the nature of the relationship and whether they are subsidiaries of a common holding company. Questions such as that I think were what my friend was alluding to at the outset of the hearing but all of those questions, in my submission, can be set aside. The solution to any question about pattern bargaining need not rely on any assessment about whether these corporations can be considered as a single business.

PN83

It's true that the negotiations have been based on conditions that are common across the three corporations and on one view that might attract some aspects of the definition of pattern bargaining found in 421(1) but to conclude that this bargaining is pattern bargaining really flies in the face of reality. Regardless of whether these three corporations are related corporations in a strict sense that is an element to the single business definition; regardless of whether that is the case, it's plain that they are part of a single corporate group which has expressed no particular interest in dividing up its employment relationships between the different companies. There's no evidence that there are issues which need to be negotiated separately between the three companies. Everyone involved has been focused on common conditions without that being a point of controversy or complaint for any.

PN84

Even if there are common conditions sought across the different employers, we say that the exceptions as explained in 421(3) and (4) clearly apply to this situation. 421(4)(c) this is a factor which can be taken into account in determining whether the negotiating party really is engaged in pattern bargaining and it's whether parties negotiating in a manner consistent with wages and conditions of employment being determined as far as possible by agreement between the employer and its employees at the level of a single business or part.

PN85

In this situation you've had employees from each of the companies and representatives of management from each of the companies all in the same room and demonstrating preparedness to respond to one another's offers and consider proposals. While there may not have been discussion about different terms and conditions for different companies, the manner of negotiation has certainly not been inconsistent with such proposals being floated. We say it has been consistent and that factor is available to support the exceptions, similarly 421(4)(d) another factor is agreeing to meet face to face at reasonable times proposed by the other negotiating party. Again that applies directly.

PN86

Subparagraph (e), considering and responding to proposals made by another negotiating party within a reasonable time, we say that's the situation here so it's leaving aside the question about whether these companies can be considered together as a single business. That might be a complicated question but the most straightforward answer to any concern about pattern bargaining is the exceptions elucidated by 421(4).

PN87

THE COMMISSIONER: Section 421(4), though, reads:

PN88

For the purposes of subsection (3) factors relevant to working out whether the negotiating party is genuinely trying to reach agreement for a single business -

PN89

and so on. 421(4), the factors identified there and you referred me to some of those, are only to be considered when section 421(3) has come into play, if you like. 421(3) is predicated on the basis that the course of conduct relates to a particular single business or part of a single business so I really don't get into consideration of 421(4) unless I'm already satisfied that we're dealing with part of a single business or a single business.

PN90

MR BORGEEST: Yes, but consider in this context, any question about pattern bargaining arises because the - there's three corporations at the negotiating table and all of the discussion about terms and conditions has been on what might be called common terms, that we're going to end up with the same terms and conditions across these businesses. One answer to that would be to say they are to be considered as a single business and that all depends on the nature of their legal relationship and the definition in the corporations law.

PN91

The definition of pattern bargaining in subsection (1), Commissioner, firstly, that the person, in this case the union, is a negotiating party to two or more proposed collective agreements. Two or more bargaining periods have been initiated but by this stage in the negotiations everyone is focused on a single collective agreement so the whole question about pattern bargaining might not apply for that reason. Even if they have declared in the notices initiating a bargaining period with respect to each company that they are seeking an agreement, that this is engaged, the course of conduct involves seeking common wages and conditions across two or more of those proposed collective agreements, the same consideration applies. The course of conduct extends beyond a single business so if the pattern bargaining problem is engaged it's because this section means we have to take each of the three corporations as a single business and so then that's where (3) is engaged.

PN92

(3) is engaged because the course of conduct, to the extent that it relates to a particular single business - let's just take the first company. To the extent that the conduct relates to it, it's not pattern bargaining if - and then all of these considerations apply. The same exercise is repeated three times and the answers must be the same because the negotiating conduct with respect to each of them has been the same, namely with respect to each company demonstrating a preparedness to meet face to face at reasonable times, demonstrating that it's considering and responding to proposals made, not capriciously adding or withdrawing items. It's, in all of the circumstances the manner of the negotiation which attracts the exception, and the exception is relevant to an assessment about whether the union is engaging in pattern bargaining with respect to each of the employers considered separately.

PN93

THE COMMISSIONER: If that's the case then 421(5) requires you to prove that. You bear the onus.

PN94

MR BORGEEST: Yes, and we say that the material in front of you is well sufficient for that.

PN95

THE COMMISSIONER: Thank you for that.

PN96

MR BORGEEST: That really leaves only the discretion area issues and the only discretion area issues are to do with whether the granting of the application are inconsistent with the objects of the division, the object being to provide a transparent process, permit the employees to authorise industrial action and plainly, there's no such inconsistency at least that I can apprehend.

PN97

In brief, Commissioner, we say there are plainly valid applications before you. The question is clear and straightforward. The bargaining conduct by all concerned appears to have been exemplary and the circumstances and preconditions for the making of the order appear to us to have been plainly made out.

PN98

It's the manner of the conduct of the negotiations which makes it straightforward, in our submission, to avoid any concern about pattern bargaining. We know what pattern bargaining is. Pattern bargaining is about imposing things without discussion across a significant number of employers. The whole concept came out of controversial industry bargaining and the Act tries to identify some key characteristics of what pattern bargaining consists of but then does provide these exceptions which permit the Commission to consider look, if you look at the real negotiation, does this negotiation have what the Act might consider to be the unattractive features of pattern bargaining which may be all the imposition of settlements without discussion after some position had been reached elsewhere.

PN99

Plainly this has none of those characteristics. Those are the submissions I wish to make Commissioner.

PN100

THE COMMISSIONER: Mr Borgeest before I hear from Mr Dowd, what the union is currently pursuing as I understand it is a single collective agreement that will have three employers as the respondents is that correct?

PN101

MR BORGEEST: First, the union initiated three bargaining periods and then over the course of negotiations things changed. The company had a different view it wanted to have individual agreements that's fallen away. What's now being negotiated about is a common set of conditions. It's fair to say that there hasn't been - there's no detail to be found in the minutes in recent meetings about actually legally how we turn this proposed collective agreement into something that can be validly lodged.

PN102

At the moment they are negotiating around a single set of terms and conditions. The draft that you see at the back from about page 129 is expressed to be a single agreement to which of the parties are each of the three companies and the union and that the form of this draft is a matter of - that structure is a matter of consensus between the union and the employers.

PN103

THE COMMISSIONER: Sorry does that mean the answer to my question was yes?

PN104

MR BORGEEST: Well yes and - yes and the way it might ultimately be reflected maybe something that they need to look at. There's nothing in the minutes that says they've taken careful, legal advice about whether it's going to be this form or something slightly different. Certainly the union has agreed to negotiate around a document that involves each of the three companies.

PN105

THE COMMISSIONER: The reason I ask the question is you mentioned it in passing, but section 421(1)(b) - - -

PN106

MR BORGEEST: Sorry sir, you just popped out on sound, there seems to be something awry - - -

PN107

THE COMMISSIONER: I'm sorry, section 421(1)(b) which talks about the course of conduct involves seeking common wages or conditions of employment for two or more of those proposed collective agreements. The reason I asked the question was if as we sit here today union is not seeking two or more collective agreements but one collective agreement which potentially can be put up for registration as a multi business agreement whether it satisfies the test and so forth, who knows. If that's the case then, what's your view about 421(1)(b).

PN108

MR BORGEEST: Well I may be jumping ahead and apprehending and anticipating a bit some issues that might be raised by my learned friend but on its face the union given that all the parties are not seeking - all the parties are seeking a single agreement. Then on that view we don't even get to the first base, that is the definition of pattern bargaining is just not engaged.

PN109

THE COMMISSIONER: That's largely because 421(1)(b) you say isn't occurring here?

PN110

MR BORGEEST: That's right.

PN111

THE COMMISSIONER: All right thank you for that Mr Borgeest. Yes Mr Dowd.

PN112

MR DOWD: Sir the last order is the only formal point I need to be at and I want to make it clear at the outset that I'm not instructed to take a position in opposing the applications but now I suggest are just making comment in relation to that last point. It's seem tolerably clear that when from Mr Knoules, when the management attended these meetings, there were three individual managers who attended and represented three individual businesses and we don't quarrel with that proposition. The document which is in A20 and annexed to Mr Knoules statement first to describe employers plural as being the parties bound to the one agreement.

PN113

The concern that occurred to me prior to me appearing with you today, flows from a decision of Vice President Lawler in ANF and Tweddle Child & Family Health Service and others print PR979298 2007 AIRC 862, a decision of whether or not to overturn 2007. What there happened was that it was apparent that the union ANF was seeking a single multi business agreement in relation to general nursing condition and another single multi business agreement in relation to psychiatric nursing. The learned Vice President simply said this, and it is the point you've just been talking about - sorry this is an application to seek a ballot for a protected action, he said:

PN114

The union Indeed, a union cannot initiate a valid bargaining period under the Act if the union wants to make an agreement that will be a multiple business agreement. The only forms of agreement which can be pursued through protected action authorised by the Act are agreements made under section 327 (employee collective agreements with a single employer) or section 328 (union collective agreements with a single employer.

PN115

Just pausing there sir, it seems that we are not looking at anything involving a single employer, so for a collective agreement originate originally. In terms of the quote:

PN116

Further, for a union to seek a single multiple-business agreement will necessarily involve the union in pattern bargaining within the definition in section 421(1) that cannot fall within the exception in section 421(3).

PN117

Now before I said to my learned friend before we commenced is that it may be the case that - and I don't have specific instructions in relation to this matter that the three corporate entities referred to in the parties bound could be a single distance, not only within the term that is used in 421 but in section 322 of the Act, which in section 322 subsection (2) defines specifically:

PN118

A single business if two or more employer ...(reads)... for the purposes of the Corporations Act.

PN119

If I can just pause there for a moment, when the certified agreement 2005 between the two corporate entities Swan Transit Services and Swan Transit SAT was approved by this honourable Commission, the preamble records that the statutory declarations of Mr Smith was examined and that the Commission was satisfied that for the purposes of 170LB of the Act as it was then, the employers are taken to be the main treated as one employer. I mean I don't suggest that that carries any particular weight in 2008 but rather it is my recollection that it was the Commission that invited proof in relation to that matter at that time and of course it is noted in the preamble to the Riverside 2005 agreement.

PN120

So what I said to my friend was that if you were concerned about that last issue of pattern bargaining insofar as we are mainly dealing with three employers, three businesses within the one agreement, the issue it seems to have concerned Vice President Lawler, it may be possible for you to be satisfied that there is in fact within the meaning of the Act a single business within the meaning of section 322 that seeks further information be put before you. Now that's all I want to say and clearly the employer put some information before the Commission in the Swan Transit certified agreement matter and I don't have any instructions in relation to the relationship of the Riverside entity and the other two or what relationship of the three may now be.

PN121

But if you were concerned about those two and had concerns similar to those that Vice President Lawler in the ANF case, a way to deal with that could be to adjourn the hearing of this matter to say next Wednesday to enable the employer and to enable me to get instructions as to relationship between the three entities and possibly the employer's - possibly put something before the Commission. I mean at the end of the day it's for the applicant to satisfy you and beyond what I've just said I have no problems with as to whether it's done or otherwise.

PN122

THE COMMISSIONER: Thank you Mr Dowd. Can I just ask you, on what you say - what you've just said, Mr Borgeest has made a submissions about section 421 (3) about the conduct and his view not being pattern bargaining because their view is that the behaviour if you like in relation to each of the single businesses if that's what they are, is such that I should be satisfied that the negotiating party here, the union is genuinely trying to reach an agreement for each of those single businesses. Do you have any view on that?

PN123

MR DOWD: I don't have any quarrel with that proposition.

PN124

THE COMMISSIONER: Would you accept then that if in fact these are not to be viewed as a single business, but rather three separate businesses, that section 421(3) overcomes any concern I could have about pattern bargaining?

PN125

MR DOWD: Yes, I think that must follow if they must be seen as a single business but rather than separate businesses. I mean separate businesses in one agreement.

PN126

THE COMMISSIONER: Yes, thank you for that Mr Dowd. Mr Borgeest is there anything you'd like to respond to there?

PN127

MR BORGEEST: No thank you Commissioner.

PN128

THE COMMISSIONER: Okay gentlemen by reaction to what I've heard is this. The course of action I think Mr Dowd has proposed has some merit. Whilst I'm reluctant to delay a decision on this matter the consequences of an ill considered issuing of secret ballot orders that have the potential to lead to industrial action downstream, it is not helpful obviously for there to be any doubts as to the legitimacy of that for any reasons. Now I think there is some merit in giving the union and the employer some opportunity to put some more information to me regarding the issue of the status of the individual businesses and whether or not they are going to meet the definition in the Act of a single business.

PN129

So it's my intention to adjourn until a date to be fixed, certainly early next week to allow the parties to consider that more fully and provide more information to myself on that point. That will also provide me with an opportunity to consider the point Mr Dowd has raised regarding the decision of Vice President Lawler. I don't have that before me and again there's some merit in me being satisfied that there are no issues raised by that decision. My availability early next week, is I think quite good. I will leave my associate now to have some discussions with the parties after we adjourn as to when we can deal with this matter. Mr Dowd you mentioned Wednesday is there some particular reason why it couldn't be later on Monday or Tuesday?

PN130

MR DOWD: I don't have any idea about - Mr Smith would be the person I would actively confer with, he is the person who would be across all of these issues, and I just don't know where he is and how it is going to be for me to get hold of him. But I am quite happy for you to set any time, I'm not trying to string this out and providing we probably get advice when the issue arises.

PN131

THE COMMISSIONER: All right very well I will allow the parties to confer with my associate after we adjourn in a moment, but my intention is as I say to have the matter relisted as soon as is sensible early next week that allows the parties to perhaps put some more information to me on the corporate status on the three individual businesses and as I say will give myself some time to consider if there are any issues arising out of the decision from Vice President Lawler. So on that basis we are adjourned to a date to be fixed next week. Thank you.

<ADJOURNED ACCORDINGLY [3.33PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL ALAN KNOULES, SWORN PN33
EXAMINATION-IN-CHIEF BY MR BORGEEST PN33
EXHIBIT #A1 OUTLINE OF EVIDENCE OF MICHAEL ALAN KNOULES AND ATTACHMENTS PN46
CROSS-EXAMINATION BY MR DOWD PN58
THE WITNESS WITHDREW PN65