BP2008/4585, Transcript of Proceedings [2008] AIRCTrans 866 (30 December 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19604-1

DEPUTY PRESIDENT MCCARTHY

BP2008/4585

s.430(9)(a) - Application for order to suspend or terminate a bargaining period (other circs)

Broome Port Authority
and
Maritime Union of Australia, The
(BP2008/4585)
Broome Port Authority Agreement 2005

(ODN AG2005/2159)
[AG840760 Print PR959179]]




Perth

10.02AM, MONDAY, 8 DECEMBER 2008

Continued from 05/12/2008

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

PN116

MR L EDMONDS: I continue my appearance in this matter, sir.

PN117

MR L PILGRIM: I appear on behalf of Broome Port Authority together with
MR V JUSTICE and MR S MULHALL.

PN118

THE DEPUTY PRESIDENT: Yes. Yes, Mr Edmonds. Yes.

PN119

MR EDMONDS: Yes, thank you, sir. I thank the Commission for the brief adjournment this morning, sir. I filed a - - -

PN120

THE DEPUTY PRESIDENT: I have got to say it annoyed me a bit,
Mr Edmonds.

PN121

MR EDMONDS: Yes, I apologise for that, sir. I did intend to get the State Commission to delay their matter and unfortunately - - -

PN122

THE DEPUTY PRESIDENT: They're just so overwhelmed with work and incapacity to have any free time that they couldn’t accommodate you, is that the situation?

PN123

MR EDMONDS: I'm not quite sure - - -

PN124

THE DEPUTY PRESIDENT: I find it really annoying, whether it's your fault, whether it's their fault. I shifted two matters for this. There was no mention on Friday that there could be a difficulty. I could have fitted another matter in and from my observation it was for a mention only matter and the State Commission everyone knows they can be easily changed.

PN125

MR EDMONDS: Yes, sir, and I did endeavour to change that, sir, and I apologise to the Commission.

PN126

THE DEPUTY PRESIDENT: Yes. Well, you might make mention if you get the opportunity to the State Commission in that matter of the dislocation it caused to me, to other parties, to these parties for a full mention only matter.

PN127

MR EDMONDS: Yes, sir. Sir, I filed some submissions and a draft order in this matter, sir. I wonder if you've had the opportunity to peruse those, they were filed last night?

PN128

THE DEPUTY PRESIDENT: Sorry, I can't hear you?

PN129

MR EDMONDS: I filed some submissions and a draft order in relation to this particular matter.

PN130

THE DEPUTY PRESIDENT: Yes, they've been received.

PN131

MR EDMONDS: I wonder if you've had an opportunity to peruse those? I did provide them to my friend this morning, sir. He hadn't had an opportunity secure them on his email this morning, sir, so perhaps that time was put to some use this morning, sir, in that my friend was given the opportunity to peruse those documents. Sir, you'll see from the outline of submissions, in particular from paragraphs 4 and 5, sir, that notwithstanding the fact that we believe the Commission's got the power to correct the defects in relation to application 2008/4586, we'd submit that the subsequent filing of application BP2008/4587 cured those particular defects and notwithstanding the fact that we believe the Commission had the power to cure the defects in the 4586 we put no contest to the request from my friend that those matters be adjourned off - sorry, that that matter be dismissed.

PN132

THE DEPUTY PRESIDENT: 4585 - sorry, 4586.

PN133

MR EDMONDS: 4585 is the application for an order to suspend or terminate the bargaining period.

PN134

THE DEPUTY PRESIDENT: Yes. So 4586 you're saying should be dismissed and you rely on 4587 for these proceedings?

PN135

MR EDMONDS: Correct, yes.

PN136

THE DEPUTY PRESIDENT: I won't dismiss it just at the moment,
Mr Edmonds, but I'll presume that we're dealing with 4587 and 4585. Mr Pilgrim, do you have any comment to make?

PN137

MR PILGRIM: Yes, your Honour. We have no direct knowledge of a new application filed by the union. It is apparent to us that certain documents were faxed through to Broome Port Authority late on Friday afternoon but they were incomplete and in our view they don't constitute a copy of an application. As far as our understanding before the Commission is that the application with which the Commission was dealing on Friday last is the only application in existence and therefore we're somewhat confused about the union's position in respect of these matters.

PN138

As far as we're concerned, as I say, there is only this one application for the protected action ballot afoot and therefore in our view we would need to hear a lot more from the union about what the union's position is.

PN139

THE DEPUTY PRESIDENT: Did you not get a notice of listing from here as well? There's a notice of listing - - -

PN140

MR PILGRIM: Yes, we have a notice of listing of a matter.

PN141

THE DEPUTY PRESIDENT: I see.

PN142

MR PILGRIM: But our submission to you, your Honour - - -

PN143

THE DEPUTY PRESIDENT: I understand your submission. I'm just asking a question.

PN144

MR PILGRIM: Yes.

PN145

THE DEPUTY PRESIDENT: You got a notice of listing and what you're saying is you didn't get the application.

PN146

MR PILGRIM: We've not been served with an application.

PN147

THE DEPUTY PRESIDENT: Mr Edmonds.

PN148

MR EDMONDS: Yes, thank you, sir. The application in question was served on the AEC who is the nominated ballot agent at 4.14 on Friday and on the Broome Port Authority to a substitute fax number after the fax number that was originally given was not working. The substitute fax number I obtained from the Broome Port Authority was 91943188 and that went through at - and that was obtained from the Broome Port Authority. I contacted them and the receptionist gave me that alternative number. That went through at 12 minutes past four on Friday and that contained, sir, a covering letter, the application itself. So the six pages of the application as well as a copy of the notice of listing, listing application 4587 for today.

PN149

So that was sent through to both the AEC and the Broome Port Authority. I'm happy to hand those documents up.

PN150

THE DEPUTY PRESIDENT: Yes, please.

PN151

MR PILGRIM: Well, sir - - -

PN152

THE DEPUTY PRESIDENT: Just a moment, Mr Pilgrim.

PN153

MR PILGRIM: Sorry.

EXHIBIT #A1 DOCUMENTS RELATING TO APPLICATION

PN154

MR EDMONDS: I'm sorry, sir, I've got no other copies of them to hand to the other side.

PN155

THE DEPUTY PRESIDENT: I'll get copies made and they will be provided to you and to the parties.

PN156

MR EDMONDS: Thank you, sir. Now, if I can just clarify, sir, that in accordance with the regulations and the rules of the AIRC the attachments to that application were not provided to the respondent in this matter but the attachments were of course filed in the Commission on Friday.

PN157

THE DEPUTY PRESIDENT: Yes. Yes, Mr Pilgrim.

PN158

MR PILGRIM: Well, sir, this is a fresh application, as we understand it, by the union and that application or an application of this character would and does have attendant responsibilities for Broome Port Authority.

PN159

THE DEPUTY PRESIDENT: All right, Mr Pilgrim. I'll deal with all the matters and I haven't dismissed any of them. Can you proceed, Mr Edmonds.

PN160

MR EDMONDS: Yes, thank you, sir. If I can just say, sir, in relation to - - -

PN161

THE DEPUTY PRESIDENT: You can sit, Mr Pilgrim.

PN162

MR PILGRIM: Before you go any further I must register our protest against this matter being heard.

PN163

THE DEPUTY PRESIDENT: Which matter?

PN164

MR PILGRIM: The matter that Mr Edmonds is referring to.

PN165

THE DEPUTY PRESIDENT: I'm hearing all of them. If they haven't been lodged or if they haven't complied with the requirements of the legislation such that there is nothing before me then there's nothing I can do. But I need to hear from Mr Edmonds and I'll deal with all of the matters and should there be no jurisdiction to deal with them I'll so rule at the appropriate time.

PN166

MR PILGRIM: Certainly, sir.

PN167

THE DEPUTY PRESIDENT: I've got limited time, Mr Pilgrim. As I said earlier, I've got an hour less than I would have otherwise and I'm going to proceed. If you wish to lodge an appeal now, go and do so.

PN168

MR PILGRIM: Certainly.

PN169

MR EDMONDS: Yes, sir. Thank you, sir. In that regard, sir, if my friend takes issue with the service of application 4587 we withdraw our submission in relation to 4586 and maintain that the Commission has got the power to amend - - -

PN170

THE DEPUTY PRESIDENT: Well, I'll deal with them all one way or the other.

PN171

MR EDMONDS: Yes, sir. Thank you, sir.

PN172

THE DEPUTY PRESIDENT: If I don't have the jurisdiction to deal with them after I've heard all the evidence then I'll rule accordingly.

PN173

MR EDMONDS: Thank you, sir. We'd seek to call Mr Will Tracey to give evidence in this matter, sir.

<WILLIAM WARREN TRACEY, AFFIRMED [10.12AM]
<EXAMINATION-IN-CHIEF BY MR EDMONDS

PN174

MR EDMONDS: Thank you, Mr Tracey. Can we just get your full name and address for the record, please?---William Warren Tracey, (address supplied).

PN175

And your occupation?---State based organiser for the Maritime Union.

PN176

And you're employed by the Maritime Union?---That's correct.

PN177

In the course of your duties with the Maritime Union have you had any dealings with the Broome Port Authority?---I have. I've got full responsibility for the Broome Port Authority on behalf of the MUA.

PN178

Did you initiate a bargaining period or did you have a bargaining period initiated with the Broome Port Authority?---Yes, we did. As part of this round of negotiations for a new enterprise agreement we initiated a bargaining period back in July. I think the sort of second or last week of July, around the 21st.

PN179

Can you go through for the Commission the bargaining that's taken place since that bargaining period was initiated?---We've had a series of ongoing meetings and correspondence back and forward in relation to this round of negotiations. Since the bargaining period came in, in July we had in all of the meetings between ourselves with the representatives of the Port and site based delegates of which there's six take place in Broome so I have to fly to Broome to conduct negotiations. The first one after the bargaining period was implemented was around about the 4th and 5 August, over two days. Normally we do two. On occasion we've had three but basically two days is normal duration of negotiations with the Port. That set of negotiations on the 4th and 5 August involved - sorry, 4 August, involved a response by this union to a proposed document that the Port Authority had put out and we would send away after the day meeting to draft our version of what the enterprise agreement should look like based on our claims and the old award because we're trying to through this process merge documents. That is, some of the terms and conditions out of the old agreement and also the award which was still valid at the time so that we had one single stand alone agreement for that port and that's not - that's a common process we're going through with most of the port authorities around the state. So we sought to after that meeting and having viewed the document put together by the Port Authority was draft up our own document and submit that to that. So we went away from that day meeting to do that and in the next two weeks the Port facilitated the delegates meeting for I think it was one or two full days in Broome. I didn't have to attend to that because they had a better understanding of what had to continue to be in the document so that they could draft a document to present to the Port. We then came back do we give the Port sort of two weeks, one/two weeks to have a look at the document that we put together and then we came back to meet again in the first week of September for another couple of days. I think it was the 4th and the 5th again, at which time the Port presented us with a response to our document and so we went through that.

**** WILLIAM WARREN TRACEY XN MR EDMONDS
PN180

Sorry, what which day was this?---That would have been September, the 4th and 5th. It was the first week, first week of September. And the Port presented us with a response to the document that the delegates had drafted with what they should be the appropriate changes in that document and we spent the first day going through in some detail their response to our document and then spent the second day working through the main issues as the Port saw them in terms of presentation of their claim to us which was basically around the key issues would have been the wages, the offer on the wages which was a good outcome, the implementation of a Broome allowance which we were apart on. The Port had one view about the Broome allowance, we had another view about how that should be conducted, and various other things around super, rosters, penalty rates and that sort of stuff and we spent a full day basically trying to work out what, after having gone through the document on the first day, working out the nuts and bolts of their offer to us and what our views were on that. We went away from that meeting or the two days of meetings in the first week of September to then have the port draft another response from that meeting about some of the discussions we'd had particularly on the second day around the wages and that sort of stuff and what we were saying about penalty rates and what have you, to come back again a month later. So it gives us three or four weeks to consider the relative positions, to come back a month later in the first week of October which I think was a Thursday/Friday because I remember having the two days of meetings and having to come back again, go away and a weekend home and come back again on the Monday. But we did two days of meetings over the Thursday/Friday. The first one was to go back again through another document that the Port had drafted up in response to ours and go through it in quite some detail and we were apart in terms of trying to reach a position which we could take back to the workforce, from memory, on 22 issues. We met again the second day on the Friday to work our way through and we slowly - I think we right through to pretty late that day, through till 4 o'clock, got to a position which we thought we could take back to the workforce and so the committee broke that day. I flew back to Perth obviously.

PN181

Now, the point of taking it back to the workforce at that time, is that for approval? Are you saying you'd reached an agreement and you wanted approval from the workforce?---No, no. We thought we were in a position to take something back for them to look at to hopefully get them to endorse, if the workforce could endorse it that would be fantastic. The committee thought we were in a position to have something that in our view was a position that we could present as a committee to the workforce and it was the best position we could get during negotiations at the time. And there was a fair bit going on, on that Friday but anyway, we broke several times, came back, the sort of normal stuff that goes on when you're trying to get an outcome. So I went home for the weekend and I flew back up again for the Monday to hold mass meetings with the workforce to say we're of the view that we've come to a position that we think we can present to you and we had a whiteboard in the main maintenance shed and on the whiteboard we outlined the nuts and bolts of the position we'd reached as we saw it and got endorsement from the workforce to print up a document and get it out to them for them to review. We did that. That took, I think that took another week and a half because there was certain people from the Port away and so we managed to get the document together and the associated paperwork that comes with it and summary documents of the key outcomes that comes with it and summary documents of the key outcomes in the agreement as we saw it and the benefits to the document. We put that out with a draft of the agreement and through the process of being reviewed by the workforce there were three outstanding issues that were brought to our attention and those three outstanding issues from the position we had put were the definition of day work, because it's a totally irregular roster. So we had to define clearly what day work is and when does afternoons kick in and all that sort of stuff because of the irregular nature of the roster. The definition of - and how frequently the consultative committee would meet with the Port and the issue of time on time and that is because of the irregular nature of the work at the Broome Port Authority there's no - there's really only probably one port authority that doesn't have rosters and Broome's one of them and in terms of port authority stevedoring and labour at Esperance, everywhere else that we do it they have fixed rosters. Because of the irregular nature of the work time on time is an important issue and that is - - -

**** WILLIAM WARREN TRACEY XN MR EDMONDS
PN182

Can you explain what time on time is?---Well, time on time is and it currently applies at the Port, is that if you're a casual after seven hours you receive time on whatever rate you were being paid. So if you're on afternoon shift and already on double time you get triple time. If you're on a public holiday on night shift, so if you're on Christmas Day, or Boxing Day, or New Year's Day, or Good Friday, or whatever it may be and you're on a night shift on that shift and you're already on triple time, if you went over the seven or the eight hours for a permanent you would then get time again. Now, you don't get triple time again. You just get time on the triple time.

PN183

So quadruple time?---Quadruple time, quadruple time on top of it. So that's only for night shifts on public holidays, the guys are forced to work Christmas or whatever it might be, and on a weekend on the night shift it's time on double time or time on time and a half, whatever it might be for working what we see is unreasonable overtime during unsocial hours and it's something that's been at the Port for quite some time now. The clause had been changed in the agreement to remove that and the guys said no, no, we're not having this taken out because otherwise they'll just work us for however many hours they want to, at whatever times they want to work us and, you know, we've got families, it's a town, we've got a social environment as well, as is the normal nature in country towns. So we wrote to the Port about those issues. They agreed to fix two of them and change the definition of day work or accommodate what we were asking for the definition of day work and accommodate us on what we were saying about the make up of the consultative committee. But they refused to move on the issue of time on time and so there was a variety of different meetings. We tried to get up as soon as we could after having written to the Port on numerous occasions about that and the next time we were able to get up there was around about the end of November, about 28th I think. We went up to meet up for a day and where we got to in that day was that the Port put its position in relation to - and it seemed to be based around the costs that the Port had incurred last year on overtime and I think from memory it was around about $110,000, $115,000 and that this would be a cost that they hadn't factored in. We put counterviews about the fact that the Port's charge out rates are based on the way our shift roster works within the agreement. So what the Port does is the Port has charge out rates, significant charge out rates and they've put them up this year and as they should, they're servicing the oil and gas industry so. But the way they do their charge out rates is after six hours they then move up to the next level. Their charge out figure goes up so if they're at $110 an hour for each person on the gang, once they get to six hours they go up to $140 and so the rates continues, whereas our rates go up after the seventh hour it goes up and after the eighth hour it goes up for permanent, seven hour for casuals. So our view was look, there is the ability to absorb the costs, as you've done in the past. In fact the charge rates are based around it and we had an argument around that. We finished that meeting on the 28th saying that look, how about we come back in 10 days over which time we can review each position and come back. And that was supposed to be today but obviously because of other issues that hasn't been able to happen, because I was down in Esperance last week doing the Port Authority agreement down there so I couldn't come back last week and I go to New Zealand tonight on the midnight flight and I'm not back till Thursday. So we'd sort of arranged 10 days from the last meeting to come back. We would review what they say. They would review what we say and we'd see if we could close the gap and to be fair to the process, we sat with the delegates that Friday afternoon and we've considered a few things. We think that the money that's been put up in relation to the costs of the overtime, a fair percentage of that is accounted for in pre shift overtime, something that has been removed out of this agreement and something that we've agreed to. We've agreed to get rid of pre shift overtime and we think that there is a fair percentage of last year's overtime bill is accounted for in that. But we were looking at arrangements where we would say we've got Broome allowance of 325 so one of the things that was thrown around amongst the workforce is what about if we drop the Broome allowance back to 310 for everyone so that can discount some of the costs, but what we would seek would be indexing of the Broome allowance over the life of the agreement. So for the first 12 months there's no movement, they get the $15 per head per day or every head per week for every person. That would discount to some extent what they say about the overtime. The time on time is a significant issue for us. You know, working people public holidays and shifts of 12 or 14 or 16 hours or whatever maybe required is just not fair and so there has to be a mechanism in place that makes the Port roster better on those circumstances and if they do roster better they will cut back the overtime. There's no doubt about that. So we think we could back with that position. Anyway, that's some of the stuff that we've flown around trying to see if we can close the gap but circumstances have beyond us at this point in time.

**** WILLIAM WARREN TRACEY XN MR EDMONDS
PN184

So you've now applied for a ballot. Why is that, why have you applied?---We've applied for a ballot to, in our view, see if it can assist us to reach an outcome on this issue and it's one of the other things we've' thrown into the mix along with trying to discount the Broome allowance or anything else that may go on as well.

PN185

And you have meetings planned for the future as well with the Broome Port Authority?---Well, we were supposed to be meeting this week, that's correct. We'd agreed 10 days after the last meeting to come back and review our positions in relation to what both parties had said on that Friday.

PN186

Is the union still prepared to meet?---Yes.

PN187

Thank you, sir. Unless there's anything from the Commission, that would be
our - - -

PN188

THE DEPUTY PRESIDENT: Just a couple of clarifications before Mr Pilgrim. So there was an intention following 28 November for there to be a meeting in 10 days?---Yes, days after that meeting, sir, that's correct.

PN189

Why hasn't that occurred?---Because we've been caught up in putting a ballot application in and hearings and that sort of thing. We had to - I was down in Esperance last week when the application came through for the suspension of the bargaining period and so there wasn't time to try and organise everything. We had to get prepared for that and then the ballot application going in.

PN190

So was the application for the suspension or termination of the bargaining period instrumental in the lodgement of the ballot application?---No, sir, we told the Port Authority at the meeting on Friday, the 28th, that to protect our position and so it wasn't prejudiced going into Christmas that we would be applying for a ballot. We informed them of that, sir. The meetings I conduct with employers we don't lodge ballot applications out of the blue. We tell them that this is part of the negotiating process or part of the bargaining process and we would be doing that. We told them at the meeting on the 28th but we also lodged to come back in 10 days. What we generally do is because of my diary and the Port's diary I normally work it out with the Port CEO the best day to arrange - I knew I had some flights going to New Zealand and they hadn't been locked in fully by the middle of last week and then these events came on, sir. But the Port was - - -

PN191

So on the 28th you said you'll come back in 10 days but we will still be endeavouring and you'll be lodging a ballot application but you'll still be endeavouring to reach and agreement?---That's correct, sir, and the delegates and myself discussed afterwards perhaps how we could move on our position to accommodate some of the issues that Port had up about costs.

**** WILLIAM WARREN TRACEY XN MR EDMONDS
PN192

The other clarification I want is the time on time, is that an existing provision, is it?---It is, sir, yes.

PN193

But the Port is attempting to - - -?---Remove.

PN194

Or alter?---Remove. The Port's attempting to remove it and the regular nature of the work there. The guys - and it hadn't been picked up. There was some drafting changes made. The report backs we had given to the workforce hadn't been including that. It's not included in any of - it's no specifically mentioned in any of the paperwork and that maybe why it wasn't picked up. But it was in fact the guys on site when they were reading back through the draft saying hang on, this has been removed, this is the effect of clause 19.4 as it now reads. The guys went through it and we talked it through with the operations managers and what have you and as a result of that we came back to them and said look, this is one of the three outstanding issues that have been picked up on proof reading this draft that's gone out to the workforce.

PN195

Yes. So hadn't it been specifically identified other than through proof reading it?
---That's correct, sir, yes, not other than - I think we got a letter from the Port saying - they talked about significant benefits in the agreement and there have been changes made to a number of clauses of which overtime was one of them, but that had been an oversight, sir, yes.

PN196

Thank you. Mr Pilgrim.

PN197

MR PILGRIM: Thank you, your Honour. I hadn't intended to deal particularly with this matter of time on time today because I don't think it goes to the relevance of the issue before the Commission. But the witness having raised this I need to explore with him and correct what we say as some factual inaccuracies.

PN198

THE DEPUTY PRESIDENT: You're asserting in the ballot application and in your own application that there hasn't been genuinely trying or isn't genuinely trying to reach agreement. Have I got the right gist of that?

PN199

MR PILGRIM: We are. We are.

PN200

THE DEPUTY PRESIDENT: Yes, okay.

<CROSS-EXAMINATION BY MR PILGRIM [10.30AM]

PN201

MR PILGRIM: Now, isn't it a fact that in the company's or BPAs 4 September document in relation to what you describe as time on time that the company had a provision which related to what after all is overtime worked continuous with ordinary hours of work, isn't the fact the company answered that provision in clause 19.4?---That is correct and it was an oversight on our behalf not to have picked that up. It was never ever part of the specific position put to us to the Port that time on time would be something that would be gone. Pre shift overtime was and we raised that with the workforce in terms of some of the changes that we made to the document. But the issue of time on time had not been raised as a specific variation to the agreement and a current condition that would be being removed. But it was in the September 4 agreement, it was in the September 26 agreement as well and we didn't pick it up. In fact the delegates the delegates hadn't picked it up until it was picked up by the workforce on their proof reading of the last document.

PN202

Yes, yes. It is true, isn't it, that the document doesn't refer in so many words as time on time but just provides for overtime rates simply for time worked in continuity with ordinary hours of work?---And the effect of that is to remove time on time.

PN203

And it's true, isn't it, that in the 26 September document the clause 19.4 incorporated penalty rates dealing precisely with that matter?---In the document put out on the 26th I think the Port Authority from memory changed the issue of overtime on public holidays from the September 4 document and the effect again of which was to have removed time on time, something that was picked up on a subsequent date.

PN204

You saw that as some kind of reduction in the overtime rates payable in such circumstances?---Well, it is a reduction in the overtime rates payable in some circumstances.

PN205

All right. I'll leave that just for the present time. Going back to where we look at this question of negotiations overall, we have the circumstance, have we not, where you've been concerned with negotiations with the Broome Port Authority on behalf of MUA and the focus was to settle a new agreement, that's fine, and then do you recall going back to about 28 March 2008, conversations between Ian Bray or your office and Sean Mulhall of our Broome office about proposed arrangements for negotiations, were you aware of those?---Yes. As you know, Ian at that stage was the official for the Broome Port Authority and I was starting to take over Broome from Ian because of other responsibilities he has and there was some discussions made in respect of I think it was more of programming for - I think it was programming issues around how the EBA was to occur and where meetings to occur and what have you.

**** WILLIAM WARREN TRACEY XXN MR PILGRIM
PN206

And were you aware that Sean Mulhall subsequently by a letter signed by Vic Justice on the same date confirmed the kinds of things that are discussed in talks with Ian, were you aware of that letter, 28 March?---That could have occurred. I'm not going to say it didn't occur. Obviously you've got a letter in front of you.

PN207

May I hand that up, please. And this particular letter setting out, as it does, the arrangements says, amongst other things, that all negotiations have to be on the basis that no issue is agreed or conceded until agreement has been reached on all points of the agreement and the draft agreement received by all employees under BPA. Is that in part what it says?---Yes. I understand that's the Broome Port position but we responded to that. That's my understanding.

PN208

But you would accept that that was the position that negotiations were entered into?---Except that this is the position that the Port put to us.

PN209

Do you accept that arrangements were unable to be finalised as between the parties all matters were agreed?---Sorry, could you put that again?

PN210

Do you accept that the basis of the negotiations in fact were that no item in those negotiations was finalised until all items were finalised?---That would be the normal process under enterprise negotiations anyway wouldn’t it?

PN211

Do you accept that?---Well look, this has been put to me on the basis that this was the position that the Port put to us about how negotiations will be conducted. They put a heap of other issues in this too in terms of us not being able to report to the troops and a number of issues which we said there is no way we are not going to attempt to report back to the troops about what had been happening with the negotiations. The other thing about this position that's been put to us is this was completely superseded. There was a variety of meetings that didn't happen and this talks about a sign off and certified EBA by 24 August 2008.

PN212

Well, I just want you to say to me yes, the MUA accepted that that was on the bases of negotiations?---Well, no.

PN213

Or for you to say no, it wasn't?---No, this was a position that was put to us by the Port about how negotiations will be conducted and we responded, as I understand, to this - - -

PN214

THE DEPUTY PRESIDENT: Just a moment. Mr Edmonds.

**** WILLIAM WARREN TRACEY XXN MR PILGRIM
PN215

MR EDMONDS: Yes, I'm loath to interrupt, sir, but these are events that have occurred in March 2008 and they actually precede the bargaining period and the test under the Act is genuinely trying to reach agreement during the bargaining period. I'm not sure how relevant they are.

PN216

THE DEPUTY PRESIDENT: Neither am I but questions can be asked and answered.

PN217

MR PILGRIM: Well, they are relevant because a whole - - -

PN218

THE DEPUTY PRESIDENT: Well, I've allowed you to ask them. The questions can be asked and answered, Mr Pilgrim. You don't need to explain.

PN219

MR PILGRIM: Sir, if I gave you a copy of an email signed by Ian Bray which said that we've read the letter attached from the BPA and confirm that we are comfortable with the proposals set out within the letter, would you accept that prima facie what we've been talking about was the basis of negotiations?

PN220

THE DEPUTY PRESIDENT: Mr Edmonds.

PN221

MR EDMONDS: Sir, I presume this is an email sent from Ian Bray to someone on the company's side. I don't know that it's proper to try and - - -

PN222

THE DEPUTY PRESIDENT: Sorry, I didn't hear you.

PN223

MR EDMONDS: It's an email sent from Mr Bray to someone on the company's side. I don't know, I suppose it essentially amounts to hearsay.

PN224

MR PILGRIM: Well, we might make a bit more progress if we can get the witness to answer it?---Well, I haven't seen it.

PN225

Let me just hand it to you. It's an email from Ian Bray to Sean Mulhall and it responds to the matters between the parties on the commencement of negotiations?---Yes, look, at that point in time we did say, and obviously this is what the letter says, I'll agree with this, what the email from Ian says, we're comfortable with the processes outlined by the Port. But subsequent events have overridden all this. This is not what happened. I understand what the Port's view of the world was at the time but where we are now shows that. All of this was superseded, as happens with fluid negotiations.

**** WILLIAM WARREN TRACEY XXN MR PILGRIM
PN226

Well, you would also be aware that the company wrote to you on 28 November following the last negotiations?---Yes.

PN227

And isn't it true that in that letter the company confirmed that it would renegotiate the terms and conditions of the agreement subject to the earlier arrangement that we've been talking about continuing to apply?---That was the Port's position. The Port's position put to us was that the agreement was a package and if we were unable to accept the Port's position in terms of removing clause 19.4 that they would reserve their position to reopen negotiations and said, well, that's fine with us if that's what you say. But the meeting we had on the 28th was in fact to attempt, because I think that meeting was sent from Sean prior to the meeting on the 28th, was to come back in 10 days after reviewed each other's position. That was where we left the meeting we had.

PN228

And in fact the company, the BPA letter to the union also said that, didn't it?
---Prior to that meeting of the 28th, yes.

PN229

No, no, after the meeting of the 28th?---No, that was served on us that day.

PN230

By letter of 28 November which is the same day as the day of the negotiations?
---But that was served on us prior to the meeting.

PN231

Let me hand up to you another letter and I'm not asking for these matters to be entered as exhibits, your Honour, so I think we can proceed more expeditiously without that.

PN232

THE DEPUTY PRESIDENT: So you're not tendering them or asking them to be tendered?

PN233

MR PILGRIM: No.

PN234

THE DEPUTY PRESIDENT: Well, I'll have very little idea what they are,
Mr Pilgrim, but that's up to you?---The Port puts a position in relation to how see the outcome happening. We left them with the position as is put here:

PN235

We further confirm the indication given to us by you today -

PN236

which is myself -

PN237

that you would wish to meet with us in approximately two weeks time to further discuss our relative positions.

**** WILLIAM WARREN TRACEY XXN MR PILGRIM
PN238

That's what we were going away to do.

PN239

Isn't that the case?---Yes.

PN240

And it's also the case that that letter says that Broome Port Authority were perfectly willing to reopen negotiations?---Yes.

PN241

Did you have any communications with BPA about say for example by email about your position relative to renegotiation?---We'd put a position earlier when we were discussing the matters that were outstanding, in particular clause 19.4, after I'd received a letter from - or an email and a letter, sorry, it came through the post as well, from Sean Mulhall saying that for these reasons the issue over the 19.4 is unacceptable to the Port and that if we don't recommend the agreement then the Broome Port Authority reserves its right to open up negotiations. I've responded back saying if that's the Broome Port's position, not a problem. If they're saying everything's up for grabs again, everything's up for grabs. But we subsequent to that had a meeting on 28 November where we discussed each other's position and once the Port had put its position to us formally at that meeting about costs based on last year's budget on this sort of stuff we said give us time to consider your position and we'll come back in two weeks time, or 10 days is what I thought I said but it says two weeks here, to meet again so that we can put a position after both having reviewed the arguments that we put on that day.

PN242

So your understanding at that point of time was that negotiations were still proceeding?---Yes.

PN243

So what happened to change your position?---Nothing. Negotiations are still proceeding.

PN244

Negotiations are still proceeding as between Broome Port Authority and the MUA?---That was the last formal position we had, yes.

PN245

And it's your still anticipation that you'll be having discussions with Broome Port Authority in whatever the nominated date is in lieu of the two weeks that you originally had in mind?---That's correct. Obviously the next three days are out but, you know, hopefully - well, now it looks probably more like next week that we can set a date and, you know, the relationship between us both has been very good during these set of negotiations so there's no issue there and, you know, the relationship between us both has been very good during these set of negotiations so there's no issue there and I would hope that even after today's hearing we can perhaps arrange a date to meet next week given that we're both here now and that's the way we've always conducted it. I deal directly with Vic or Sean and say look, this is my diary. I mean, you know, we're very, very busy at the current time but I try and organise my diary around being able to get up for a two day period and it now looks like that will have to be next week. It can't possibly be this week now.

**** WILLIAM WARREN TRACEY XXN MR PILGRIM
PN246

So why are we here on an application for a protected strike ballot?---We're exercising our rights under the Act to go to a hearing for a ballot for protected action so we protect our position. Our view is that may be what's needed to get and outcome but there's still a fair way left in these negotiations, yes.

PN247

I've got no further questions.

PN248

THE DEPUTY PRESIDENT: Yes, thank you. Mr Edmonds.

PN249

MR EDMONDS: No, thank you, no questions, sir.

PN250

THE DEPUTY PRESIDENT: Good, yes.

<THE WITNESS WITHDREW [10.47AM]

PN251

MR EDMONDS: Sir, that's our evidence in this matter, sir.

PN252

THE DEPUTY PRESIDENT: Yes, thank you. Mr Pilgrim, do you wish to adduce any evidence?

PN253

MR PILGRIM: I do, sir. It will be our intention to adduce some evidence and make some submissions.

PN254

THE DEPUTY PRESIDENT: Yes. Both of you, having heard that evidence and just considering all these matters, what I may be inclined to do is reach a determination with respect to the secret ballot applications but not reach a conclusion with respect your application, Mr Pilgrim and it may be necessary to have further hearings or proceedings in light of that, but that's what my current inclination is and I thought I'd alert you both to that at this juncture so you may consider that in how you approach the matter. Do either of you have any issue with that if that's the course it takes?

PN255

MR EDMONDS: No, sir.

PN256

MR PILGRIM: No, sir.

PN257

THE DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Pilgrim.

PN258

MR PILGRIM: Thank you, sir. We would like to put a submission to you at the outset if that sits comfortably with your Honour?

PN259

THE DEPUTY PRESIDENT: Yes, if that's going to put the evidence in context and as long as it's brief, that's fine.

PN260

MR PILGRIM: Yes. Now, our position essentially is that the MUA filed an application last Thursday for a protected action ballot and our position essentially put to you on Friday was that that application is defective in that there's no authorisation pursuant to section 453(2) of the Act and that section says:

PN261

If the applicant is an organisation of employees the application must be accompanied by a written notice ...(reads)... to authorise the application.

PN262

In point of fact the union's notice of 4 December related to some other company called Alltrans Engineering and the employees of those persons. Our submission is that this is a substantial defect and that there is no authorisation in respect of protected action ballot and with respect, the Commission is unable to amend this authorisation, nor is the union able to ask the Commission for the Commission to amend it. What we do want to say is - - -

PN263

THE DEPUTY PRESIDENT: Well, I can't amend an authorisation.

PN264

MR PILGRIM: No.

PN265

THE DEPUTY PRESIDENT: What the union has requested is that the notice attached to the application was the wrong attachment and that the notice attached be replaced with the notice that is attached to the later application. That's what they've asked. That's not a request to change an authorisation.

PN266

MR PILGRIM: Yes, yes. Our - - -

PN267

THE DEPUTY PRESIDENT: Is that in dispute the way I've characterised that?

PN268

MR PILGRIM: Our position, your Honour, is that - - -

PN269

THE DEPUTY PRESIDENT: No, no, just a sec. Are you disputing the way I've characterised? Do you agree with me or disagree?

PN270

MR PILGRIM: Yes, I do.

PN271

THE DEPUTY PRESIDENT: Well, how have I got that wrong?

PN272

MR PILGRIM: Our position essentially, your Honour, is that the failure on the part of the union to attach an authorisation as required by the Act fatally flaws the application as a whole and that that flaw is not capable of being dealt with by the Commission, either by an application by the union to do so or by the Commission accepting a further document. The union might well say to you that the Commission can via section 111(1)(m) of the Act amend an application for a ballot in what form it sees fit. The union said this is just a matter and did so at the time, that it was a matter of just producing a new authorisation which it puts to the Commission to enable the Commission to amend the application.

PN273

We say that it can't where another section of the Act specifically deals with this matter. In other words, the command of the parliament is that an authorisation be obtained from the committee of management of the union and that that authorisation contained in that section 453(2), be part of the application by the union. We say that 111 can't move to enable the Commission with respect to amend the application in that the principle involved is that the specific in the Act overrides the general and in this particular case the specific is the command of the parliament that an authorisation be obtained.

PN274

THE DEPUTY PRESIDENT: Well, there's an authorisation. The argument I think is whether the application is accompanied by the authorisation. That's the issue, isn't it, Mr Pilgrim, or do you disagree with me again?

PN275

MR PILGRIM: Yes. The application requires certain things.

PN276

THE DEPUTY PRESIDENT: You do? You do? When you said yes, you disagree with me?

PN277

MR PILGRIM: Yes.

PN278

THE DEPUTY PRESIDENT: How?

PN279

MR PILGRIM: We say that the application by a union for a secret or protected ballot requires that certain things be contained in that application.

PN280

THE DEPUTY PRESIDENT: Well, I thought your submission was that the requirements of the Act is that the application must be accompanied by certain things.

PN281

MR PILGRIM: Yes.

PN282

THE DEPUTY PRESIDENT: And I put to you that your argument I understood to be it wasn't accompanied by those certain things.

PN283

MR PILGRIM: Yes.

PN284

THE DEPUTY PRESIDENT: One of those certain things being a declaration by the applicant under subsection (4), a copy of the particulars that accompanied the notice under section 426 and a copy of the notice given under section 423(3). That's what I thought your submission was or have I got that wrong?

PN285

MR PILGRIM: Well, what we're saying there is that the union failed to provide in its application an authorisation as required by the Act.

PN286

THE DEPUTY PRESIDENT: Yes, where?

PN287

MR PILGRIM: I beg your pardon?

PN288

THE DEPUTY PRESIDENT: Where in the Act?

PN289

MR PILGRIM: Where in the Act?

PN290

THE DEPUTY PRESIDENT: Yes.

PN291

MR PILGRIM: In section 453(2) which reads:

PN292

If the applicant is an organisation of employees the application must be accompanied by a written notice showing that the application ...(reads)... to authorise the application.

PN293

THE DEPUTY PRESIDENT: Well, that was the question that I put to you. I understood your submission to be that the application was not accompanied by a written notice.

PN294

MR PILGRIM: It wasn't. It was accompanied by some other piece of paper.

PN295

THE DEPUTY PRESIDENT: No, no, no, whether it was or not as a matter of fact, right.

PN296

MR PILGRIM: Yes.

PN297

THE DEPUTY PRESIDENT: Now, what I'm asking you, I understood your submission to be the application was not accompanied by and you're saying it must be accompanied by. That's the submission, isn't it?

PN298

MR PILGRIM: Yes.

PN299

THE DEPUTY PRESIDENT: So it's not a question of whether there was authorisation or not. What your submission is, it wasn't accompanied by.

PN300

MR PILGRIM: No.

PN301

THE DEPUTY PRESIDENT: Whether there was authorisation or not, whether the authorisation existed or not, I understood your submission to be that authorisation, if there was one, did not accompany the application, is that - - -

PN302

MR PILGRIM: For the purposes of the application, your Honour, we're saying that there wasn't an authorisation pursuant to section 453(2).

PN303

THE DEPUTY PRESIDENT: Yes, that accompanied the application. You're saying there wasn't any authorisation at all?

PN304

MR PILGRIM: Yes.

PN305

THE DEPUTY PRESIDENT: So you're saying that the authorisation that has been provided is a falsity? The authorisation of 5 December signed by Chris Cain that attaches to application 4587, you're saying that's a falsity, are you?

PN306

MR PILGRIM: We're only aware of an application filed on 4 December which included a document signed by the union which authorised the taking of a secret ballot by employees of a company other than the Broome Port Authority.

PN307

THE DEPUTY PRESIDENT: So what accompanied the application was not what was supposed to accompany the application.

PN308

MR PILGRIM: It didn't comply with the Act.

PN309

THE DEPUTY PRESIDENT: In the sense that an authorisation did not accompany the application.

PN310

MR PILGRIM: Yes.

PN311

THE DEPUTY PRESIDENT: Good.

PN312

MR PILGRIM: Yes. And so it raises the question of - now, our second basis of objection relates to compliance with section 461(1) of the Act and we find there that the Commission, and I quote:

PN313

The Commission must grant an application for a ballot order if and ...(reads)... trying to reach agreement with the employer.

PN314

That's (a) and (b) of that provision. We say that the application doesn't comply with the provisions of the Act in that and as evidence as it and the union's witness freely concedes that negotiations are ongoing as we speak and that the union has an anticipation that within a relatively short space of time the union will come together again with the BPA to discuss the issues which have still to be finalised and the union itself, as I understand the witness, agrees that the negotiations proceeded on a package deal basis so that negotiations at this time still continue.

PN315

The union has no quarrel with the company's advice to it that it's prepared to renegotiate the agreement and so that indeed it's our submission that the union itself has agreed that - or has stated that if such negotiations still continue, which is anticipated, that everything will be up for grabs. Now, we accept that in accordance with the principle of the negotiations which I've referred to before - - -

PN316

THE DEPUTY PRESIDENT: But my understanding of that evidence,
Mr Pilgrim, was there was one outstanding item that the Broom Port Authority indicated that it may wish to reopen all of the elements of the wages and conditions for renegotiation and the union responded, well, if that's what you wish to do, that's the way we'll proceed. That's my understanding of the evidence.

PN317

MR PILGRIM: Yes. Negotiations still continue.

PN318

THE DEPUTY PRESIDENT: Yes. So they're required to. The Act doesn't say in genuinely trying to reach agreement before a ballot order is issued that negotiations are at an end, far from it.

PN319

MR PILGRIM: But what the Act does say, your Honour, is that the Commission must not grant such an application when the applicant is genuinely trying to reach agreement with the employer.

PN320

THE DEPUTY PRESIDENT: No, it says it must.

PN321

MR PILGRIM: Present tense.

PN322

THE DEPUTY PRESIDENT: It says it must.

PN323

MR PILGRIM: So it's past tense and present tense.

PN324

THE DEPUTY PRESIDENT: Yes.

PN325

MR PILGRIM: So in other words, until negotiations are over then the Commission shouldn’t make an order.

PN326

THE DEPUTY PRESIDENT: That's not what it says at all.

PN327

MR PILGRIM: Well, the provision says:

PN328

The Commission must not grant the application unless it is satisfied that during the bargaining period the applicant genuinely tried to reach agreement.

PN329

THE DEPUTY PRESIDENT: Yes.

PN330

MR PILGRIM: So we're still in the bargaining period.

PN331

THE DEPUTY PRESIDENT: Yes.

PN332

MR PILGRIM: With the employer and it also says in (b):

PN333

Must not grant the application unless it is satisfied that the applicant is genuinely tried to reach agreement with the employer.

PN334

THE DEPUTY PRESIDENT: Yes.

PN335

MR PILGRIM: And the witness's evidence was that it is genuinely trying to reach agreement with the employer.

PN336

THE DEPUTY PRESIDENT: Yes.

PN337

MR PILGRIM: So in sub (1):

PN338

The Commission must not grant the application unless it is satisfied that the applicant is genuinely tried to reach agreement with the employer.

PN339

THE DEPUTY PRESIDENT: Yes, which you said that's what the evidence establishes.

PN340

MR PILGRIM: Yes, I do. So we're saying that we have communicated each with the other for the continuance of negotiations.

PN341

THE DEPUTY PRESIDENT: Yes.

PN342

MR PILGRIM: And at this point in time the union's application is for a strike ballot essentially.

PN343

THE DEPUTY PRESIDENT: Yes.

PN344

MR PILGRIM: We're saying the Commission shouldn't make such an order for that reason.

PN345

THE DEPUTY PRESIDENT: For what reason?

PN346

MR PILGRIM: For the negotiations between the parties still continue.

PN347

THE DEPUTY PRESIDENT: Yes. Well, they're required to. If you came up here and said look, they may have been genuinely trying to reach agreement but they're not now, then the provisions of section 461(1) would not be complied with.

PN348

MR PILGRIM: Well, I would - - -

PN349

THE DEPUTY PRESIDENT: So they've come here and said, and you agree with the evidence, yes, there's been trying to reach agreement and they say they're genuinely trying now. That's what you said the evidence was, which I agree with you.

PN350

MR PILGRIM: Yes. We're saying to you, sir, that because of the exchange between the parties that the agreement to have further discussions the Commission shouldn't issue a protected - - -

PN351

THE DEPUTY PRESIDENT: But I don't have a discretion. You're saying the evidence establishes that they are genuinely trying to reach agreement. That's what you say the evidence is. Now, I must grant an application under those circumstances unless you can establish no, the evidence establishes that they're not trying to reach agreement, nor have they ever tried to reach agreement.

PN352

MR PILGRIM: Well, of course in - - -

PN353

THE DEPUTY PRESIDENT: I think you're reading it wrong, Mr Pilgrim.

PN354

MR PILGRIM: In sub (2) of this section of course the Commission may refuse the application.

PN355

THE DEPUTY PRESIDENT: If it's inconsistent with the objects of the division or they've breached an order. Are you saying there's any of that extant? See, what 461(1) does, Mr Pilgrim, is say the Commission must. That's the emphasis of it. But must not if, and then there are the ifs, during the bargaining period -

PN356

Unless it is satisfied that during the bargaining period the applicant genuinely tried to reach agreement.

PN357

So if they genuinely tried to reach agreement tick one, unless it is satisfied that the applicant is genuinely trying to reach agreement, tick two. Now, you've said the evidence establishes so far anyway that they're genuinely and still genuinely trying to reach agreement and the union will stand up and say, yes, and they have, yes, that's right. Because if they said no, we're not, negotiations are at an end, it's finished, then I couldn't issue an order. That's the way it works.

PN358

MR PILGRIM: I won't take the submission any further, sir, but I do rely on my earlier submission principally that the application was protected and that there's no capacity - - -

PN359

THE DEPUTY PRESIDENT: So are you now saying that you do not rely on an argument that the union has not or is not genuinely trying to reach agreement?

PN360

MR PILGRIM: No, what I’m saying is I'm taking the argument no further.

PN361

THE DEPUTY PRESIDENT: So are you relying on that argument still?

PN362

MR PILGRIM: I'm relying more particularly on my first argument.

PN363

THE DEPUTY PRESIDENT: All right. Well, proceed.

PN364

MR PILGRIM: And my first argument being that the application filed on 4 December was defective and that there is no document or application before the Commission at this point in time.

PN365

THE DEPUTY PRESIDENT: I understand that that's your argument. So are you going to now produce evidence?

PN366

MR PILGRIM: Those are our submissions. We will call evidence from Mr Victor Justice in relation to this matter.

PN367

THE DEPUTY PRESIDENT: Yes.

PN368

MR PILGRIM: May it please you.

<VICTOR ROBERT JUSTICE, SWORN [11.09AM]
<EXAMINATION-IN-CHIEF BY MR PILGRIM

PN369

MR PILGRIM: What is your occupation?---Chief executive officer of Broome Port Authority.

PN370

Can you tell the Commission what terms and conditions of employment apply to employees of Broome Port Authority currently?---We have two. We have the Broome Port Authority Award 2002 and the Broome Port Authority Agreement 2005.

PN371

And are all employees covered by this agreement, this document?---With the exception of the managerial personnel, yes.

PN372

So when did the agreement expire?---23 June 2008.

PN373

And how did you intend to deal with the replacement of that agreement?---We started work in January of this year to try and set up early negotiations to try and get a seamless exchange of what we had with the new arrangement. We established some parameters for negotiation which you've covered and we started preparing logs of claims.

PN374

And in your discussions with the union what was or were the principal requirements for the good conduct of the negotiations?---Probably the most important one was the parameter of where we didn't want to agree or concede any point or issue until we've reached consensus on the whole package.

PN375

And was this put in writing?---Yes. I believe that was a letter of around about 28 March.

PN376

And did you receive a reply?---The reply that we got I believe was the email from Ian Bray.

PN377

And that was to the effect that what?---That the MUA was comfortable with the ground rules for the negotiations.

PN378

So when did negotiations start?---About mid July.

PN379

How did they proceed?---Well firstly we had an exchange of logs of claims. We had a series of meetings, meetings with the employee representative group and ourselves. We had a number of meetings with the workforce on site and we had an exchange of documents.

**** VICTOR ROBERT JUSTICE XN MR PILGRIM
PN380

When did you get to the point where you were able to make a final offer?---We made what we regarded as a full and final settlement on the 26th of September of this year, and I quite honestly believed that we’d reached a consensual point.

PN381

Why did you adopt that view?---Because at the meeting we had shaken hands on the deal and the employee consultative committee was quite happy with that, and they were taking it away for presentation to the workforce for adoption.

PN382

THE DEPUTY PRESIDENT: When was this?---The 26th of September, sir.

PN383

MR PILGRIM: Is this a copy of the letter that you sent?

PN384

I would like to hand this one up to the Commission, may it please your Honour.

PN385

THE DEPUTY PRESIDENT: So you wish to tender it?

PN386

MR PILGRIM: To what extent was the agreement able to be finalised?

PN387

THE DEPUTY PRESIDENT: Well, are you tendering this document through this witness?

PN388

MR PILGRIM: I’m sorry.

PN389

THE DEPUTY PRESIDENT: You’re going to ask him to identify it?

PN390

MR PILGRIM: I’m sorry. Can you identify the document for me?---Yes, that’s the one.

PN391

THE DEPUTY PRESIDENT: That’s what?

PN392

MR PILGRIM: What is the essence of that letter then?

PN393

THE DEPUTY PRESIDENT: Captain Justice, this is a letter you sent to Mr Tracey on 26 September, is it?---Yes, I - your Honour I was thinking of a previous letter that was related to the - - -

PN394

Yes, well this is the only one that is being sought to be tendered. This is a letter you sent on 26 September to Mr Tracey?---It is a copy of a letter I sent on the 26th of September.

**** VICTOR ROBERT JUSTICE XN MR PILGRIM
PN395

THE DEPUTY PRESIDENT: Yes, all right I’ll mark that R 1.

EXHIBIT #R1 LETTER DATED 28/09/2008 FROM CAPTAIN JUSTICE TO MR TRACEY

PN396

MR PILGRIM: To what extent was the agreement able to be finalised?---It was put to a - to the consultative committee. The consultative committee agreed to what was in the document. Subsequent to that we had communications from the MUA that they wanted to add to the claim.

PN397

So what happened next?---We received communications, I believe on the 5th of October, to say that there was a perceived typographical error in the document and that a time on time amendment was required to section 19.4 of the agreement, and that - and on the 14th, I believe it was, the 14th of October, we reverted back to the MUA with one of our letters to say that firstly, if we’re looking at the package of what was presented as an offer, our full and final offer, if they wanted to make anything additional then we would have to go back and renegotiate the whole arrangement; and that was our document of the 14th or thereabouts of October.

PN398

So what happened as a result of that?---We received - we subsequently received a reply back to say that that was a sticking point and that the - there would be no further negotiations on it. That was to be a full and final demanding point.

PN399

Can you tell the Commission what events subsequently took place in November?
---In November. Okay, we - we reached the point in November where we were told that the union had met with the workforce. The workforce were adamant that we wanted - that they wanted the time on time, and we had a very short meeting, where we advised the union where we had reached a point where we had given everything that there was to be given and that we couldn’t afford the extra money for this time on time. We said to them “Look, we want to go back and renegotiate this further to look at the entire package”, and my understanding was that we were going back to meet on this.

PN400

Did you have any further negotiation in November?---I - I cannot recall.

PN401

So when did you have your November negotiation approximately?---I can’t recall the date.

PN402

You had a further negotiation in November you say?---Yes.

**** VICTOR ROBERT JUSTICE XN MR PILGRIM
PN403

I see, and what did you say in that negotiation?---In the negotiations we explained that it was a full and final package and that we would - if they wanted to explore the time on time consideration then we would want to look at the entire system and review the entire package. I can’t recall anything more of that meeting.

PN404

What further meetings were planned after that?---We were going to meet - on the 28th of November we planned on having a meeting some 10 days afterwards, and in that subsequent meeting we were going to include our consideration of the time on time clause.

PN405

So nothing has transpired since that time?---With - we had the application for protected strike action served on us.

PN406

I would like to hand up a copy of a letter to the union dated 28 November 2008. It’s headed Further Broome Port Authority Agreement Negotiations. I would like to hand that up to the Commission.

PN407

Can I ask you to have a look at that letter; is that a letter that you recognise at all?
---Yes, I recognise that one.

PN408

That’s your signature on it, is it?---That is correct.

PN409

We would like to enter that, your Honour.

EXHIBIT #R2 LETTER DATED 28/11/2008 FROM CAPTAIN JUSTICE TO THE UNION

PN410

MR PILGRIM: What communication, other than what has been said today, have you had from the MUA about timing of further talks?---Only that round about the end of this week that I expected to be meeting with them, to engage in further discussions.

PN411

I’ve got no further questions at this point.

<CROSS-EXAMINATION BY MR EDMONDS [11.23AM]

PN412

MR EDMONDS: Mr Justice, can we just clarify that the offer that was made on 26 September, that was in your view a full and final on the Port’s behalf?---That’s correct.

PN413

All right, and that meant that the Port could not offer anything more; you had already given as much as you could?---That’s correct.

PN414

Your view was that the employee consultative committee was happy with the deal?---Correct.

PN415

But it was also your understanding that it was necessary then to take that out to the workforce to seek some sort of feedback?---Correct.

PN416

Subsequent to that there was an issue raised in relation to the time on time issue; had that been discussed in the negotiations before?---No.

PN417

No, all right. So once that was raised as an issue, I suppose that then had financial implications; if the union wanted to retain that it had financial implications, given that you had made a full and final offer?---Yes. The - that’s correct. There were financial implications in that we had expanded our offer to fully take up the amount of money that we had available.

PN418

So there were further discussions that took place after that full and final offer?
---We - we shook hands on the deal and in fact I congratulated the - Will Tracey on driving a hard bargain.

PN419

All right, and you’re sure that was in September and not in October?---It could have been October.

PN420

Is it possible that it was on Monday 6 October or else on Friday 3 October that those issues had been resolved, and that subsequent to that it was put out to the workforce for feedback?---There are so many dates in this whole process which ranges back over 12 months, that my tiny little mind just can’t cope with.

PN421

Sure. But time on time had not been discussed prior to that draft being produced?---No.

PN422

You subsequently learned in November that the workforce wanted to retain the time on time?---That was the advice that I received back from the MUA.

**** VICTOR ROBERT JUSTICE XXN MR EDMONDS
PN423

You had a short meeting, was that on 28 November, where you said that you had already given as much as you could, that this was full and final package but that the parties would go away and think about the time on time clause a bit further?
---We did - we did have a short meeting which was the last meeting of the round at which that was discussed.

PN424

All right, was that when you produced the letter, exhibit R 2, after that meeting, because that’s dated 28 November?---I think that’s - that could be the date.

PN425

It’s clear from your correspondence that the parties have gone away to consider their respective positions with respect to time on time further?---With a view to having a follow on meeting.

PN426

All right, and it’s your view that the unions do want to reach agreement?---Yes, as Will Tracey said, I believed that throughout this we had a very good relationship during the negotiations, and it’s my viewpoint that we would try to come to an agreement.

PN427

That’s all the questions I’ve got, sir.

PN428

THE DEPUTY PRESIDENT: Thank you.

PN429

Yes, Mr Pilgrim, any re-examination?

PN430

MR PILGRIM: Thank you, your Honour.

<RE-EXAMINATION BY MR PILGRIM [11.27AM]

PN431

MR PILGRIM: Didn’t that letter of 28 November say “We would be happy to renegotiate the agreement”?---Yes. That was our viewpoint then. It’s our viewpoint now and our board also has directed me to keep that aim in mind.

PN432

And that subsequent negotiation could include consideration of the union’s further overtime claim?---That’s correct.

PN433

No further questions, your Honour.
THE DEPUTY PRESIDENT: Yes, you’re excused.

<THE WITNESS WITHDREW [11.27AM]

PN434

THE DEPUTY PRESIDENT: Mr Pilgrim, are you intending to call any further evidence?

PN435

MR PILGRIM: No, I don’t intend to call further evidence now, your Honour.

PN436

THE DEPUTY PRESIDENT: Yes, very well.

PN437

MR PILGRIM: That completes our submissions in respect of this matter, your Honour.

PN438

THE DEPUTY PRESIDENT: So Mr Pilgrim, what do you say if I dealt with these two applications as multiple applications and, pursuant to section 460, issued an order if I found that the requirements had been met, using the provisions of section 460?

PN439

MR PILGRIM: Well my first submission has already been made in respect of one of those applications.

PN440

THE DEPUTY PRESIDENT: Yes, well my understanding is that with respect to the first application you say that the requirements were not met because the notice of giving authorisation did not accompany the application. With the second application, my understanding is that you’re saying that the requirements of the Act have not been met because it wasn’t served.

PN441

MR PILGRIM: Yes, your Honour.

PN442

THE DEPUTY PRESIDENT: Have I got that right?

PN443

MR PILGRIM: That’s essentially the case.

PN444

THE DEPUTY PRESIDENT: Yes.

PN445

MR PILGRIM: That it wasn’t served in accordance with the provisions of the Act.

PN446

THE DEPUTY PRESIDENT: Well you’re saying it wasn’t served.

PN447

MR PILGRIM: Yes, we got a document but it wasn’t an application which complies with the provisions of the Act.

PN448

THE DEPUTY PRESIDENT: That is the one that Mr Edmonds said was faxed on Friday?

PN449

MR PILGRIM: The six pager.

PN450

THE DEPUTY PRESIDENT: Yes.

PN451

MR PILGRIM: It said nothing, your Honour, about the matter which we had raised on Friday, which was the defective - - -

PN452

THE DEPUTY PRESIDENT: No, it’s a new application.

PN453

MR PILGRIM: Yes.

PN454

THE DEPUTY PRESIDENT: So what do you say with respect to the second application? Are you saying it wasn’t served?

PN455

MR PILGRIM: Yes.

PN456

THE DEPUTY PRESIDENT: But you received it.

PN457

MR PILGRIM: It wasn’t served in the sense that it wasn’t an application pursuant to the Act.

PN458

THE DEPUTY PRESIDENT: Why?

PN459

MR PILGRIM: Because it didn’t contain that information necessary which the Act requires to be filed and served on the employer.

PN460

THE DEPUTY PRESIDENT: What information is that?

PN461

MR PILGRIM: The application that was filed was a six page document.

PN462

THE DEPUTY PRESIDENT: Sorry, my understanding was that you didn’t receive anything on Friday.

PN463

MR PILGRIM: No, no, we received a six page document on Friday which
was - - -

PN464

MR EDMONDS: I think, sir, my friend’s complaint might be that they didn’t get the material that accompanies the application under section 453.

PN465

MR PILGRIM: I’m grateful for my friend for that.

PN466

MR EDMONDS: If it helps, sir, we didn’t supply it and if I could perhaps direct my friend to section 454 of the Act; maybe it might assist him.

PN467

MR PILGRIM: Well you see there is nothing before this Commission at this point in time to show that this application has been properly made.

PN468

THE DEPUTY PRESIDENT: Which application?

PN469

MR PILGRIM: The second application.

PN470

THE DEPUTY PRESIDENT: You’re saying the accompaniments were not there at all?

PN471

MR PILGRIM: Correct, and it’s only this morning that we have learnt, in particular, how it is that the union intends to deal with the fact of the two applications.

PN472

THE DEPUTY PRESIDENT: What have you learned?

PN473

MR PILGRIM: Well I’ve learnt, your Honour, that both applications are flawed.

PN474

THE DEPUTY PRESIDENT: So the first application is flawed by the failure of the proper accompaniment, that is the notice of authorisation by a duly authorised committee of management or someone authorised by such a committee. That’s the first application.

PN475

MR PILGRIM: Yes. Yes.

PN476

THE DEPUTY PRESIDENT: The second application you’re saying is flawed because none of the material in 453 accompanied the application; is that what you’re saying?

PN477

MR PILGRIM: Correct. Correct, and including the fact that the application subsequently would require or did require that the employer post notices on notice boards, copies of orders made by the Commission, a copy of a notice to all employees, and none of those things have actually been required or included or have occurred.

PN478

THE DEPUTY PRESIDENT: Yes, go on. Is that your submissions, is it?

PN479

MR PILGRIM: That’s our submissions.

PN480

THE DEPUTY PRESIDENT: Yes, all right.

PN481

Mr Edmonds.

PN482

MR EDMONDS: Yes, sir, thank you sir. I will try to be very brief, sir. If I could say in relation to application 4585 first, there was two bases upon which the employer was asserting that the bargaining period should be suspended or terminated. We say in relation to those bases that simply the first basis is that the applying for a secret ballot is evidence per se that a party is not genuinely trying to reach agreement. We would say that argument is simply flawed. The second basis which was pleaded, which no evidence has been led on, is that the union is not otherwise genuinely trying to reach agreement with the Broome Port Authority because it would not afford the workforce an opportunity by mass meeting of considering the employer’s offer. We would simply say that’s based upon a misapprehension of the Act. It’s a two-stage process. One is agreement is reached in relation to union collective agreement. Agreement is reached first with the union and only once agreement has been reached does it then go to the workforce for approval. So agreement is made first and then approval is sought from the workforce. We say that it is not necessary to seek approval in circumstances where no agreement has been reached, so simply there is no basis for application 4585.

PN483

In relation to 4586, sir, we say the Commission has got the power under section 111(1)(l) and (m) to amend that application or to correct, amend or waive any error, defect or irregularity whether in substance or form. Those documents do not need to be served on the employer. All the Commission needs to be satisfied is that they accompany the application and it has got the power to amend the application to correct that defect.

PN484

THE DEPUTY PRESIDENT: Well it’s not the application that is amended really, is it Mr Edmonds?

PN485

MR EDMONDS: No, sir, it’s the documents that accompany the application. Section 111(l) and (m) allow the Commission to:

PN486

Allow the amendment on any terms that it thinks appropriate of any application or other document relating to the proceeding.

PN487

What we would say, sir, is that the Commission has in the fairly recent past in the CSR Sugar matter, sir, and I’m afraid I don’t have a reference for you for that , but did actually amend a bargaining period, which identified the wrong employer. So actually took the step of going back to amend the initiating document, the bargaining period if you will, where it was clear what the intention of the parties was, and where it was clear that the parties had proceeded on the basis that that bargaining period was properly made and properly authorised. We would say that in these circumstances, sir, it’s clear that the application is authorised by the MUA. It was simply an oversight that the wrong document was attached to the application itself, and we would say the Commission has got the power to amend that, or to correct that defect, if you will.

PN488

Notwithstanding all of that, sir, the applicant filed application BP20084587 on Friday and served that on the employer and on the AEC, and the Commission has got those documents in front of it; served that in accordance with section 454 of the Act, which requires that:

PN489

The applicant must give a copy of the application but not the material referred to in section 453 to the other party and any person nominated in the application to conduct the ballot within 24 hours after lodging the application with the Commission.

PN490

Clearly that occurred. That occurred within a couple of hours after doing that. We have conceded of course that the Commission does not have the power to amend the time period, but we would say that that’s not in dispute here. We would say that this document was properly served. In relation to the directions of the Commission, the test for the Commission is that a - sorry, I beg your pardon sir.

PN491

THE DEPUTY PRESIDENT: Directions by the Commission.

PN492

MR EDMONDS: Sir, the test is whether the parties referred to in relation to section 458 have had an opportunity to make submissions. These matters were all listed together, sir. It wasn’t necessary with the second application, we say, to post a new notice at the workplace. Simply, sir, we would say that the vast majority of employees at the workplace are members of, and are covered by, the MUA. They had an opportunity to put submissions in relation to the first application. It’s not necessary to seek or to have a further notice posted in relation to the second notice, and indeed the requirements of the Act don’t require the posting of the notice; simply that the employees have an opportunity to be heard. We say that that has occurred, that the employees have had an opportunity to be heard and that in those circumstances it’s appropriate that an order should issue. The parties are of one mind, sir, in that we both agree that the MUA has genuinely tried to reach agreement and is genuinely trying to reach agreement.

PN493

THE DEPUTY PRESIDENT: What do you say about Mr Pilgrim’s submission that because the union is trying to reach agreement then the Commission can’t issue an order?

PN494

MR EDMONDS: Well, sir, I think that would fly in the face of the Act and it would be contrary to the Act. It would also fly in the face of the object of the division which is found at section 449, and in addition to that, sir, I do make some comments about the purpose of the Act and the explanatory memorandum at Part 7 and Part 8 of my submissions. In particular the explanatory memorandum says:

PN495

This section would establish the object of the new divisions to provide employees with access to a process of fair and democratic secret ballots to determine whether protected industrial action should be taken. The provisions are designed to be facilitative not prohibitive -

PN496

and that is to err on the side I suppose, or to find a way to make ballots happen sir, rather than a way to ensure that they don’t occur. While the union movement might have views about whether or not a secret ballot process ought occur, sir, we would say that the purpose of the Act is designed to allow those things to occur; to allow ballots to take place and we say that this application that we have made is consistent with the objects and that the Commission ought grant the protected ballot application today.

PN497

THE DEPUTY PRESIDENT: Yes. Mr Edmonds, are you suggesting that an order should issue with the application 4586 or 4587 or both?

PN498

MR EDMONDS: Either or both, sir. We would say that they’re both made properly, that the Commission has got the power to deal with them both, and that we would be happy for them to both be dealt with together.

PN499

THE DEPUTY PRESIDENT: As a section 460 proceedings.

PN500

MR EDMONDS: Yes, essentially to have the one ballot to apply to both.

PN501

THE DEPUTY PRESIDENT: Yes, and where does your preference lie?

PN502

MR EDMONDS: My preference lies with the Commission taking the steps that it sees fit, sir. Sir, if I had to pick an application I would say perhaps 4587 but really I think they’re both in order and they’re both within the jurisdiction of the Commission. The only other issue, sir, was the issue of whether it would be an attendance ballot or a postal ballot.

PN503

THE DEPUTY PRESIDENT: Now before we finish that, the requirement of the Act that an application must be accompanied by; do you make any submission about the contemporaneity(sic) of that obligation? In the sense that if an application has the wrong attachment or wrong accompaniment, can that application still be an unaltered application by a replacement accompaniment?

PN504

MR EDMONDS: I would think it could be, sir, and I think that the Commission has got those broad powers under section 111 to deal with that.

PN505

THE DEPUTY PRESIDENT: Well, whether it’s an application of those powers or not, can an application still be regarded as an application with an accompaniment?

PN506

MR EDMONDS: Yes.

PN507

THE DEPUTY PRESIDENT: Even though the accompaniment might be a later accompaniment?

PN508

MR EDMONDS: Yes. Yes, and if I could contrast the powers of the Commission, sir, with section 111.

PN509

THE DEPUTY PRESIDENT: So just following that through, by that statement you’re saying the application does not need to rely on section 111. It was accompanied by, as your primary submission.

PN510

MR EDMONDS: Yes.

PN511

THE DEPUTY PRESIDENT: But even if it wasn’t accompanied by, then it’s a defect that the Commission has the capacity to rectify.

PN512

MR EDMONDS: Correct.

PN513

THE DEPUTY PRESIDENT: And even if it didn’t have the capacity to rectify it, the later application rectified the earlier omission.

PN514

MR EDMONDS: Correct. .

PN515

THE DEPUTY PRESIDENT: Is that the sequence?

PN516

MR EDMONDS: Correct, and the later application, sir, is the same in substance as the earlier application.

PN517

THE DEPUTY PRESIDENT: Yes.

PN518

MR EDMONDS: So with respect to an employee’s opportunity to put submissions to the Commission, nothing changes between the two. If I could also say about the powers of the Commission, sir; section 111(6) of the Act says:

PN519

If a provision of this Act specifies a time or a period in respect of any matter or thing the Commission must not extend the time or the period specified unless this Act expressly permits the Commission to do so.

PN520

So if the Parliament intended to put a stop on the Commission’s power to amend or waive any errors or defects in the document, then I put it to you sir that the Parliament would have done so, as the Parliament has done so in relation to the extension of time for particular matters. If you recall, sir, the old powers of the Commission used to be very broad powers to extend time to do certain things, and that was a change that was made under the Work Choices changes; those changes to the Commission. So we would say that the second limb of our argument with respect to the jurisdiction is enhanced by that particular provision.

PN521

Finally, sir, if I could just put to you in relation to the issue of attendance ballot versus postal ballot. I very briefly touched on that issue in the outline of submissions that I have presented to you. Now we haven’t called any evidence in relation to that matter, sir, but we would say that in particular at paragraph 25 of my submissions I say that:

PN522

The applicant submits that given the fact the ballot applications coincide with the Christmas period it is unlikely a postal ballot will be able to be completed before the AEC shuts down for the Christmas break, and in those circumstances the applicant would be disadvantaged in the course of their negotiations by an extended delay on the outcome of the ballot.

PN523

Also sir we would draw the Commission’s attention to section 459(3) of the Act which says:

PN524

In deciding whether to make an order to give a direction under this section and deciding the content of any such order or directions the Commission must have regard to the desirability of the ballot results being available to the parties within 10 days after the ballot order is made.

PN525

Now I don’t put that to you in the circumstances, sir, to suggest that that’s mandatory but we put it to the Commission that that’s a factor that it ought consider; and it ought consider the distance from Broome to Perth and with the Christmas rush in relation to the postal issues, sir, we would say it would mean that an attendance ballot would be more desirable in these circumstances and more efficient; and an opportunity of course for someone from the AEC to have a couple of days in Broome. I take it the Commission has been sent a timetable in relation to these matters, sir?

PN526

THE DEPUTY PRESIDENT: So with respect to the other voting method, namely the attendance ballot, why again is that more efficient and expeditious than a postal ballot, Mr Edmonds?

PN527

MR EDMONDS: Well we would say, sir, that in relation to a postal ballot there is a reasonable delay on mail at this time of year, given the Christmas rush. I accept that we haven’t led any evidence in relation to that matter, but we would simply put it to you, sir, that there is a delay on mail at the Christmas period and that that delay, and given the distance from Perth to Broome, would simply mean that the ballot itself would take quite some time to complete. Indeed, in those circumstances it’s likely that the ballot results would not be known until after the Christmas, New Year period, which is well outside the 10 days the Commission should have regard to. We simply don’t put it - - -

PN528

THE DEPUTY PRESIDENT: Are you saying that at other times of the year it might be better?

PN529

MR EDMONDS: Yes.

PN530

THE DEPUTY PRESIDENT: It might be expeditious to have it by way of postal ballot but at this time of the year there is a risk that it’s not expeditious.

PN531

MR EDMONDS: Yes.

PN532

THE DEPUTY PRESIDENT: I see, or as efficient.

PN533

MR EDMONDS: Yes, sir, and especially given the distance of course from Broome to Perth. It’s not in the metropolitan area. It would take quite some time for the mail to arrive and return.

PN534

THE DEPUTY PRESIDENT: Yes, so the employees, you’re saying, would be disadvantaged and that the 10 days guideline, I suppose, would be not met.

PN535

MR EDMONDS: Of course, sir, as I put to you, the 10 days is only a guide. It’s not a mandatory time limit.

PN536

THE DEPUTY PRESIDENT: Yes, and it’s clearly a desire or intent of the legislation for that to be the case, isn’t it?

PN537

MR EDMONDS: Yes sir.

PN538

THE DEPUTY PRESIDENT: Do you have any comment on the form of ballot, should an order issues, Mr Pilgrim?

PN539

MR PILGRIM: No, your Honour, except to the extent that we have informed the union by letter that we were prepared to agree to our facilities being the site of any ballot that might have been conducted in the future.

PN540

THE DEPUTY PRESIDENT: Any attendance ballot.

PN541

MR PILGRIM: Yes.

PN542

THE DEPUTY PRESIDENT: So you agree to an attendance ballot?

PN543

MR PILGRIM: No, we merely say that if one were to be held then we don’t have any objection to it being held on our premises.

PN544

THE DEPUTY PRESIDENT: Yes, so what is your view about an attendance ballot rather than a postal ballot, and a comment if you have any, on Mr Edmonds’s submissions about that? Do you have any comments to make?

PN545

MR PILGRIM: We don’t have a matter to put to you, your Honour, on that.

PN546

THE DEPUTY PRESIDENT: All right.

PN547

Mr Edmonds, is that all you wish to say, Mr Edmonds?

PN548

MR EDMONDS: Other than to say, sir, that I’m not sure if the AEC has given you a proposed timetable in relation to an attendance ballot. But we would think that perhaps Tuesday or Wednesday of next week might be - would give the parties sufficient time to compile their lists and to prepare a list of employees to be balloted.

PN549

THE DEPUTY PRESIDENT: If it’s an attendance ballot that means they would have to send someone up to Broome, does it?

PN550

MR EDMONDS: Yes sir, it would, but those costs of course are met by - - -

PN551

THE DEPUTY PRESIDENT: It’s a question of efficiency then.

PN552

MR EDMONDS: Well I suppose it is a question of efficiency, sir.

PN553

THE DEPUTY PRESIDENT: Why is that any more efficient than a postal ballot, if they have to send someone up there?

PN554

MR EDMONDS: Well efficiency sir, is a broad concept. It’s not just a concept that revolves around - - -

PN555

THE DEPUTY PRESIDENT: It’s efficiency and expedition.

PN556

MR EDMONDS: Yes.

PN557

THE DEPUTY PRESIDENT: The balance between the two, I suppose.

PN558

MR EDMONDS: Yes.

PN559

THE DEPUTY PRESIDENT: In the context of the desire of it being within 10 days.

PN560

MR EDMONDS: I’m happy to go up and conduct the ballot for the AEC if it’s necessary, sir.

PN561

THE DEPUTY PRESIDENT: I’ll think about that. There’s nothing further?

PN562

MR EDMONDS: Other than to say, sir, we would have no objections to communicating with the AEC in relation to those issues.

PN563

THE DEPUTY PRESIDENT: Yes, well usually what occurs is there’s a decision taken and then the logistics are sorted out with the AEC.

PN564

MR EDMONDS: Yes. Sir, the ballot could most likely occur over the space of one day. That would be sufficient, we think, to get everyone in and out.

PN565

THE DEPUTY PRESIDENT: Just to be clear on a number of matters, Mr Edmonds. The application occurred after the nominal expiry date of an existing collective agreement.

PN566

MR EDMONDS: Yes. Yes, sir.

PN567

THE DEPUTY PRESIDENT: The questions to be put form part of the application.

PN568

MR EDMONDS: They form part of the application.

PN569

THE DEPUTY PRESIDENT: Both applications were served within 24 hours on the employer?

PN570

MR EDMONDS: Yes, sir.

PN571

THE DEPUTY PRESIDENT: And the AEC?

PN572

MR EDMONDS: Yes, sir.

PN573

THE DEPUTY PRESIDENT: They were served, yes?

PN574

MR EDMONDS: Yes.

PN575

THE DEPUTY PRESIDENT: Do you say that anyone who had an interest had a reasonable opportunity to make submissions?

PN576

MR EDMONDS: Yes, sir, there was substantial notice given to the employees of the matter being heard on Friday. The second application or the later ballot application was not different in substance from the initial application, so there was a reasonable opportunity to put submissions.

PN577

THE DEPUTY PRESIDENT: There has been no suggestion that pattern bargaining and issues of genuinely trying and genuinely having tried to reach agreement?

PN578

MR EDMONDS: They’re almost agreed between the parties, I think sir.

PN579

THE DEPUTY PRESIDENT: Yes, thank you.

PN580

MR EDMONDS: Thank you sir.

PN581

THE DEPUTY PRESIDENT: Yes, well I’m satisfied that the requirements of the Act have been met in respect to an application for a secret ballot order. I’ve dealt with, and intend to continue to deal with, the applications as multiple applications which are under section 460 of the Act. I’m satisfied that the application and applications have been properly made and the matters are properly before me, and that the requirements of the Act have been met. If there is any - and I don’t think there is - doubt about that, then the powers available to me, although I consider them unnecessary to be prevailed of, because in my view both applications satisfy the requirements of the Act, that is 4586 and 4587. But should I be wrong in that, then the powers available to the Commission through the provisions of section 111 I apply in amending the documentation, by allowing the accompaniment of the notice of authority to application 4586, and one set of orders will issue.

PN582

With respect to the form of the ballot, I’ll make some enquiries of the ballot agent and decide on whether it should be a postal ballot or an attendance ballot after those enquiries have been made. With respect to the application lodged pursuant to section 430 paragraph 9 paragraph A by the Broome Port Authority I will not rule on that matter or determine that matter at this juncture, and I consider it to be not practicable for me to do so at this juncture.

PN583

Mr Pilgrim, in making that decision, in effect it provides you with the right to pursue that application more fulsomely at a time that’s convenient to all parities. Of course should that application be pursued and be successful then that has obvious implications for the ballot and the outcome of it. So I will proceed on that basis and Mr Pilgrim you can advise me whether you wish to intend to proceed with that other application, and the parties will also be communicated with, with respect to the logistics of the conduct of the ballot. This matter is adjourned.

<ADJOURNED INDEFINITELY [11.59AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DOCUMENTS RELATING TO APPLICATION PN153
WILLIAM WARREN TRACEY, AFFIRMED PN173
EXAMINATION-IN-CHIEF BY MR EDMONDS PN173
CROSS-EXAMINATION BY MR PILGRIM PN200
THE WITNESS WITHDREW PN250
VICTOR ROBERT JUSTICE, SWORN PN368
EXAMINATION-IN-CHIEF BY MR PILGRIM PN368
EXHIBIT #R1 LETTER DATED 28/09/2008 FROM CAPTAIN JUSTICE TO MR TRACEY PN395
EXHIBIT #R2 LETTER DATED 28/11/2008 FROM CAPTAIN JUSTICE TO THE UNION PN409
CROSS-EXAMINATION BY MR EDMONDS PN411
RE-EXAMINATION BY MR PILGRIM PN430
THE WITNESS WITHDREW PN433