AG2012/501, Transcript of Proceedings [2012] FWATrans 385 (11 April 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033215-1

COMMISSIONER ROE

AG2012/501

s.185 - Application for approval of a single-enterprise agreement

Application by Sitzler Pty Ltd
(AG2012/501)





Melbourne

12.42PM, THURSDAY, 29 MARCH 2012

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

PN1

THE COMMISSIONER: Can I have the appearances in this matter, please. We'll start with the people who are here in Melbourne.

PN2

MR K. McNAB: If the tribunal pleases, I seek permission to appear on behalf of Sitzler. My name is McNab. In Darwin we have Mr Steve Margetic, who is the managing director of the company, together with Alex Saundry, who is an industrial relations consultant.

PN3

THE COMMISSIONER: Yes.

PN4

MR McNAB: Mr Margetic is on the left of the screen. So I seek permission to appear.

PN5

THE COMMISSIONER: Thanks, Mr McNab. And in Sydney?

PN6

MR A. BORG: Borg, initial A, on behalf of the CFMEU.

PN7

THE COMMISSIONER: Okay. And is Mr Huddy around, or what's the situation with - - -

PN8

MR BORG: He is unavailable. He wasn't available today. My understanding is that he is on a flight somewhere, so I'm afraid he won't be here today.

PN9

THE COMMISSIONER: That's all right. Thank you. I understand that. Mr Borg, do you have any objection to Mr McNab's appearance?

PN10

MR BORG: If the Commission is happy with that appearance, I'm happy also. So in that respect - - -

PN11

THE COMMISSIONER: Okay. I'll grant permission to Mr McNab to represent the company. All right. There has been quite a lot of correspondence in respect of this agreement, and there were earlier proceedings in respect of the bargaining process before Drake SDP so I don't intend to go through all of the material that has been involved that has got us to this particular point because that material is available to both of the parties and is readily able to be identified by the date of the correspondence. As I understand it, the situation we have reached in respect of my consideration about the approval of the agreement is that on 22 March, the company has provided me with some undertakings which were subject to a number of earlier iterations as we went through the issues of concern.

PN12

But 22 March does constitute some undertakings from the company in respect of the concerns that I had. In response to that, I indicated that there were still a couple of matters that needed to be addressed; I think three in particular. The first was that there were a number of matters raised in the CEPU's correspondence, which still didn't appear to be adequately dealt with by the undertakings offered, and I set that out in correspondence of 23 March. I don't necessarily have an absolutely formed view about those matters, but I wanted to give the employer an opportunity to respond in respect of those matters. That's the first issue.

PN13

I think the second issue is that the CFMEU raised some concerns about whether the agreement could be described as a genuine agreement because of the process undertaken in leading up to the agreement, and I decided that I needed to consider those matters further. The third issue is given the extensive nature of the undertakings, I was concerned that the undertakings might constitute a substantial change to the agreement, and if that's the case, then I couldn't approve the agreement. I must say my normal approach in these matters is to be as flexible as possible with the parties, and I have approved a number of agreements that have included a significant number of undertakings because it seems to me that that's consistent with the objects of the Act, which is to facilitate the making of agreements, so I tend to err on the side of liberality in terms of interpreting that part of the legislation.

PN14

But in this particular case, the number of undertakings do exceed those that you might normally expect to see - not just the number and also the scope - so that is a relevant consideration. I think they're the three issues that need to be considered, and I think I'd add to that a supplementary matter which is that in the event that I was unable to approve the agreement, I consider that it would be important to see if we could not get an agreed approach between at least the CFMEU and the company about how the agreement or an agreement can be finalised without too much further difficulty because I think it's important that the company shouldn't be subjected to unnecessary delays and/or expense in the process of trying to finalise agreements.

PN15

As I say, if I was unable to approve the agreement, I would be keen to see if it was possible to get an agreement between the parties effectively on a timetable and a process that had a reasonable prospect of getting the matter finalised quickly. So they're the four matters. I received just before I came into these proceedings a statement of Mr Huddy and a number of attachments to that statement. Now, obviously Mr Huddy is not here to be cross-examined about that statement. In the main, the documents that are attached to the statement are ones that I have already seen and which the parties are familiar with, so the matters in the attachment in the main are nothing new to me or to the parties.

PN16

I think the matters that - and the substance of the statement in the main is also the same as the statement that was before Drake SDP, so I've also read most of the statement in that respect and Drake SDP considered that. I think the matters that are probably of relevance and importance are the paragraphs in Mr Huddy's statement that deal with what has happened as far as the CFMEU is concerned in the period since Drake SDP had her hearing, and that's paragraphs 15 to 25 of the statement. So I think probably the best way to proceed, now that I've set out what it is I think we need to get some further guidance on, in the proceedings here today, I think I'd probably like to hear from Mr McNab first to see if he's got any comments and particularly any comments he might have about Mr Huddy's recent material.

PN17

And then I might see if Mr Borg wants to address - and perhaps we should find out from the company what their view is about those outstanding CFMEU conditions issue matters that I raised, then if we've got that information, I might see what Mr Borg has to say or add, then I might give Mr McNab an opportunity to respond to that and then I might take the matter further. But I might need to adjust that process, depending on what people have to say. That's just my preliminary view about how we might proceed. So Mr McNab.

PN18

MR McNAB: Thank you, Commissioner. In respect of the matters that you raise in your correspondence of 23 March 2012, those matters are presently under consideration by the company and a response - the company wishes to formulate a proper response to those matters.

PN19

THE COMMISSIONER: Okay.

PN20

MR McNAB: But I think the effect of that is that it's likely that there will be further undertakings proffered in respect of those matters - not all of those matters, but some of those matters - but the company's not in a position to put a final, formal position in relation to that because obviously the formulation of undertakings is an important matter and we want to give proper consideration to it.

PN21

THE COMMISSIONER: Yes.

PN22

MR McNAB: The position of the company is that it does wish to make an agreement, and if the Commission is minded to do so, would seek to make an agreement with the undertakings that have already been proffered and with some additional undertakings. Now, whether that can happen depends on the Commissioner's view on whether there are now so many undertakings that it is a different agreement or not. We would say that the substance of the agreement hasn't changed. We would also submit that the changes that have been put are in fact beneficial to the employees concerned. There's no detriment involved, and we would submit that the wording of the section is really directed at eliminating detriment as a result of changes.

PN23

There can hardly be any complaint where, as a result of undertakings, the employees are left in a position where they're better off with the undertakings than without it, and you're left with an agreement that's workable. The main point is that you have an agreement which is capable of being properly enforced or properly understood by the parties, and we say that with the undertakings that have already been proffered and with any additional undertakings which would take in some of those matters raised, you would still be left with a perfectly workable agreement.

PN24

The other issue is, if we could move from that point, first of all, we haven't seen the statement of Mr Huddy. I would have thought that's because my friend has really only recently become aware of the fact that we're involved in the matter. We've had communications with Mr Margetic and Mr Saundry this morning, and there was no mention that that had been provided to them. So it may be lost in the aether somewhere. But in any case, we don't want that to hold up the matter this morning. I don't know whether it goes in any particular - - -

PN25

THE COMMISSIONER: I can probably assist with that in a minute if needed. Yes.

PN26

MR McNAB: The company is in a similar position because we prepared a statement on behalf of Mr Margetic, which hasn't been served on the union as yet. But in substance, that recites what has occurred since the orders were made by the tribunal in December, and it goes to provide evidence to the tribunal of bringing the nature of the undertakings - bringing notice of the nature of the undertakings to the representatives, so as required by section 194 of the Act. We're seeking to assist the tribunal by bringing the existing undertakings to the attention of those employees, but the - obviously we haven't given notice of these further proposed undertakings.

PN27

But effectively, what it says is that a notice was provided on 28 March which set out all the correspondence, and it invited employees to express their views on the form of the undertakings and express any concerns regarding the matters raised in the correspondence between Sitzler, the CFMEU and the tribunal. So basically appraising the representatives of the state of affairs, as you invited the company to do in your correspondence. That's the substance of that. I'm instructed that somebody from the company, Chantalle Murray, who is the human resources manager, has spoken to 17 of the 21 representatives and the views that are expressed there is that there really is no concern in relation to the undertakings.

PN28

For the most part; I think 15 of the people asked have not expressed any concern about the undertakings. There have been comments made that they preferred more money, which is not unnatural, but there's no concern expressed in relation to the form of undertakings with respect to 15 of those people. The other points which remain outstanding are the questions of validity of the employee notice.

PN29

THE COMMISSIONER: Yes.

PN30

MR McNAB: We note the correspondence from the union in that regard. We would submit that there's no impediment to the company proceeding on that notice. The inclusion of the particular words in the notice requesting employees to return the completed - the words, "I ask that you complete the attached notification form and return it to me by Friday, 13 January 2012". We say that the inclusion of those words does not alter the nature of the document. We refer in particular of the decision of the full bench in Galintel Rolling Mills Pty Ltd T/A The Graham Group (2011) FWAFB 6772, and in particular at paragraphs 44 to 47. I've got a copy of that decision with me to hand up to the tribunal if that assists.

PN31

THE COMMISSIONER: That does assist, yes. Thanks. I mean, obviously I'm familiar with the decision but I'd like to have a look at the particular reference you're taking me to.

PN32

MR McNAB: So what we say - in that case, the full bench was considering the inclusion of a slip on the notice, and it held that the inclusion of the slip which could be completed by employees did not alter the nature of the notice. We say that any fair reading of the document here does not change the nature of the notice, and in particular, the slip invites the individual to appoint some person, themselves or the union to be bargaining representative. The form of the words in the notice is essentially the same as the prescribed form, the same except for those particular words. So if you read the document, it's quite clear that it provides that if they don't appoint any person and if they're a member of the union, then the union will become the bargaining representative.

PN33

That's in the third paragraph, the second part of the form. That's the prescribed form. We say there is no vice in the document and that it was properly understood by the employees, and as a result of that, the process has been put in place. We say that the process has been conducted fairly and in accordance with the provisions of the Act. There have been two meetings with employees, each of which lasted for about one and a half hours, where an agenda was provided by the CFMEU as to what it wanted. The points were raised and discussed. Obviously, there wasn't agreement on all matters which were put up by the CFMEU, but they were certainly discussed. At the end of the second meeting, by agreement, employees chose to put the agreement to the vote.

PN34

Now, there's nothing that we're aware of which would suggest that this was some sort of peremptory use of the - or misuse of the provisions of the Act or ignoring the provision of the Act. It was a vote taken by people who were employed there, who were representatives and who decided that's what they wanted to do. The parties voted on it and there was a majority of people who wished for the agreement to be put forward for approval. Now, we take what the Commissioner said in relation to setting a program or establishing some format if you are minded that there are too many undertakings for it to be the subject of approval.

PN35

We don't want to be in the position such as in this case as we presently are, where a form of notice was put forward, objection was taken to it, then as a result of that, a further notice was issued, then the parties have gone through the process of nominating representatives, attending meetings, involving the electoral commission for the conduct of a vote and getting to the point where it either will or will not be approved, and then them saying, "Well, we don't approve of the process". We want to avoid that.

PN36

THE COMMISSIONER: That's precisely my point.

PN37

MR McNAB: We would submit that the notice in its present form conforms with the requirements of the Act, and the parties should, if the application is rejected, be able to proceed on without the need to issue further notices et cetera. In relation to the points about good faith bargaining, whether an agreement has been - whether there is genuine agreement, we would want to be in a position to put material on in relation to that if that becomes necessary. If it's pressed that all should be thrown out and the company has to start all over again, then we'd want to be heard in relation to that and put on evidence in relation to the process.

PN38

THE COMMISSIONER: Yes. Okay. Thank you. That's very helpful. So I might ask Mr Borg at this point.

PN39

MR BORG: Thank you, Commissioner. Could I just confirm that I can be heard - - -

PN40

THE COMMISSIONER: Yes, you can be heard.

PN41

MR BORG: Well, I will start out by saying, yes, indeed, the CFMEU does oppose the approval of this enterprise agreement. That's the starting point I should probably flag from the outset. It has been raised, the issue of delays. I just want to make a preliminary point about that. The current agreement, so far as I understand, expired in June last year. Since about August last year, we have been in communication with the company, trying to initiate bargaining, which ultimately didn't happen until earlier in the year. I'll say that in addition to that, when we did approach the company to bargain in relation to an enterprise agreement, the company did tell us from the outset that they would not be doing anything until February of this year, 2012.

PN42

That was back in August 2011, and since then the company themselves have tried to jump the gun on a number of occasions. What I mean by that is they have tried to put out an agreement entirely elaborated by themselves to a vote, without their employees properly understanding the ramifications of bulldozing through an agreement, if I can put it in those terms. There are a few issues that I would like to talk about and that the Commissioner and my learned friend have also flagged, and they're in relation to which sections of the Act we should be looking at here. One is indeed section 188, sub-section (c), which concerns whether or not enterprise agreements which weren't genuinely agreed to should indeed to be approved.

PN43

We submit that in this instance there was no genuine agreement and indeed this agreement should not be approved on that very basis alone. In addition to that - at this stage I'm just flagging the sections of the Act that might be relevant at this stage and I'll get into further detail as we go alone - section 190 as well, paragraph (3), in relation to undertakings and, "(b) that may result in substantial changes to the agreement". Of course at this stage, the company have only agreed to some 10 - no less than 10 - undertakings that alter this enterprise agreement, and we would submit quite clearly that this results in some substantial changes to the agreement.

PN44

We would submit that it does not make for a fair and transparent document to have an enterprise agreement and for there to be undertakings which the company themselves openly announced to the workforce in the last two days. We only received notification yesterday of these undertakings, other than through correspondence with chambers. So we'd submit that in addition to there being so many undertakings as to render this enterprise agreement superfluous, in addition to that, the alleged - and I'll say "alleged" because I'll come back to this point - bargaining representatives, I would submit, don't even know about the undertakings, let alone the effect of them.

PN45

They may - my learned friend has raised the issue that they had no problems with the substance of the undertakings, but what about when it comes to a dispute? Have they been explained the full ramifications of having a set of undertakings as separate from their enterprise agreement which is supposed to set out the terms and conditions of their employment? I would submit no. In addition to that, section 190, paragraph (4), which relates to that last issue:

PN46

FWA must not accept an undertaking under sub-section (3) unless FWA has sought the views of each person who FWA knows to be fit as a bargaining representative for the agreement.

PN47

Now, at this stage, who are the bargaining representatives is in issue. We would submit that the 21 employees themselves are not bargaining representatives as such. But that's the position of the company. It was along that point, and I'm not sure if we want to keep going around circles on this - in any event, this will come back to my good faith bargaining point as well - I would submit that employees are not bargaining representatives; they're parties to an agreement. They don't need notifications of being bargaining representatives to complete and to nominate themselves.

PN48

THE COMMISSIONER: Sorry. Could you just repeat that? I didn't quite catch that point you're making.

PN49

MR BORG: The point that I'm making, Commissioner, is that the company got employees who nominated themselves as bargaining representatives to this agreement by way of the notice of representation and by notice of the cover letter with that notice. I'll get further into that as we go along. The point that I would like to make, which is one of law and not of fact as such, is that employees would be party to an agreement. They don't need to nominate themselves through some kind of form to be able to negotiate their terms and conditions of employment. They have an automatic right, and what the company has been saying to them all along is that if they wish to be seated at the table, then they need to nominate themselves.

PN50

Then ultimately, if the company changes their position, they need to nominate themselves or some other person or the union. That was only brought about through the hearing that happened on 9 December last year because the CFMEU raised concerns and so did Drake SDP in respect of that. Nothing can remove the fact that these aren't industrial lawyers that we're dealing with here; these are construction workers in the Northern Territory. They won't be fully aware of their rights as under the Fair Work Act and other instruments, and indeed under the common law, but they could indeed pay difference to an employer who continues to give them instructions.

PN51

This comes back to the other point as well that I'm saying about that notice of representation. My learned friend has raised a case and he has raised the point that on the face of things, the notice of representation and the letter attached to that, there's nothing untoward about all of that. But we would submit indeed there is, and indeed it should not be read in isolation. Only the most recent notice of representation covered it, but also with the two others that have gone out previously in the last year, which did encourage actively - and that was indeed the word employed by the employer - the employees to nominate themselves if they wanted a position at the bargaining table.

PN52

It was rightly pointed out by Drake SDP that indeed that was not the correct position and that is indeed not the position that you should be putting out to your workforce if indeed you want to engage in good faith bargaining. On the good faith bargaining point in particular, I'll say that there are no less than 21 alleged bargaining representatives in a workforce of no more than 25. It's just absolutely extraordinary that you can engage in proper, full discussion and negotiations for an enterprise agreement with that many parties that are on the table with no more than two meetings of one and a half hours. It's just incredible. I'll also flag the issue - why this is important as well, this good faith bargaining discussion, is in relation to section 187, paragraph (2):

PN53

FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representative for a proposed enterprise agreement or an enterprise agreement -

PN54

et cetera. So basically what we have is a situation in which the company, by way of these notices of representation and these nomination forms, have been attempting to sideline the union in the first place by having their employees fill out the form to exclude the union altogether. Then they went along and wanted the union to just be one of many bargaining representatives, such that the bargaining process would just be a sham. In addition to that, I'll also turn to the substance of the negotiated process. The only log of claims that the union has submitted to the company were to read the agreement in compliance with the National Employment Standards under the Fair Work Act, and the modern award, the Building and Construction General Onsite Award 2010.

PN55

That is our starting point. That was the position. That's all we required for the company. Yet because they did not engage in good faith bargaining, through their procedural mischief, we would have a wholly deficient agreement. It would result in a wholly deficient agreement which requires no less than 10 undertakings just to bring it up to the status of being approvable. Now, the union submits this is a wholly unacceptable outcome, and for the company to hang its hat on delays and costs and so forth, it's all down to them. It's not down to the union. The union just wants to ensure that our members are properly represented at the table and that our members have what is due to them under the industrial laws and instruments.

PN56

To not have this inadequate document unilaterally elaborated by the company itself - I will point out in respect of that, the same document was put out last year. In the company's own words, no negotiations had taken place. So they elaborate the document, no negotiation has taken place. They then tried to fix up the procedural problems that brought them unstuck last time around, and they just presented the same new document to the workforce. The only changes that they put forward as a result of the two meetings were in respect of redundancy and in respect of the travel allowance. Well, we'll thank God for that, I'll say, otherwise there might have been well in excess of 10 undertakings that they would have had to have required just to meet the BOOT test.

PN57

Commissioner, I do submit that this agreement is by no way near ready for approval. The negotiation process - the bargaining process is only inadequate because of the company's own managerial deficiencies in that respect. The company cannot hang its hat on delays and expense because they are the ones who have caused the delays and expense by trying to rush through their own agreement and not by going backwards in a proper way that is required under the Act. I mean, I could go through, Commissioner, all of the attachments in Mr Huddy's statement and spell it out but I think it's quite clear on even the most cursory readings that bargaining has not taken place.

PN58

It has indeed not taken place in good faith either on the part of the company, and as a result - the only result is that we have a deficient agreement which could have been avoided. There could have been an agreement last year had the company said, "Okay. Well, we've got obligations under the modern award and the NES, so therefore we'll upgrade our enterprise agreement to reflect that." The company simply hasn't done that, and the union cannot be blamed for delays and expenses the company might incur, simply because the company didn't go about it in the right way in the first place. Unless the Commissioner has any questions, I think that's the thrust of my argument. As I said, I can also go into further detail as required.

PN59

THE COMMISSIONER: Yes. Thank you. Well, it seems to me that there's a few different issues which you probably need to look at in combination, even though of course they need to be considered separately, but it's the combination of them that's relevant. The vote on this agreement was very close. There were 11 votes in favour, there nine votes against and there was one informal vote. That of course makes it, if there are legitimate arguments that the process was not properly followed, both in terms of the specific statutory requirements generally and the particular issue of genuine agreement in particular, it makes that more significant in that those matters could potentially have influenced the outcome of the vote. That's why it's relevant to consider that issue.

PN60

The second key matter really relates to the extent of the undertakings, and that's interrelated with this question of the closeness of the vote and the process because I think the CFMEU are not correct in their reference to section 187(2) because the full bench of the tribunal has essentially found that section 187(2) is about an enterprise agreement in relation to which a scope order is in operation, and that clearly isn't the case in respect of this matter. So I don't think that's a relevant submission. Secondly, I don't accept the submission of the CFMEU about the time period and nature of the process by which questions of undertakings are considered.

PN61

I don't think that the legislation requires some sort of lengthy detailed process in respect of those matters for the reasons that Mr McNab gave, and that is that if the undertakings are beneficial to employees and they're overcoming problems in the agreement which were deficient in the sense of not being adequately beneficial, then the consultation about the undertakings has to be seen in that context. Now, of course, the consultation is very important because the agreement is an agreement; it's owned by the parties and therefore you shouldn't be able to change it without some consultation, and that's precisely why that's in the legislation.

PN62

So obviously it's an important step. I'm not belittling the step, but I'm just saying I don't think it necessarily requires a lengthy process. If it was seen that way, then the whole process which I certainly exercise in dealing with agreements would become much more complication, and I don't think that would be consistent with the objectives of the legislation in terms of the requirement that I deal with applications expeditiously or the more general objects of the legislation about minimising formality and the like. I don't accept that. I think the process by which the undertakings are considered in this matter is reasonable. I'm not going to every detail of the process but I'm just saying in general I think that I'm satisfied that process is reasonable.

PN63

The matters that do concern me - and I don't have a final view about these matters because of course Mr McNab has indicated that there want to be further evidence. I don't have a final view about them, but I do agree with the comments of Drake SDP about the process that led up to the point the disagreement was at in November and December last year. I don't agree with Mr McNab when he says that there is no advice in the document, that is, in the notice of representational rights. I think that's an overstatement of the situation. Paragraph 46 of the decision which Mr McNab referred to in respect to the Galintel Rolling Mills case says:

PN64

While it is generally unwise for an employer to alter or add to the notice of representational rights because an alteration may alter its nature, we are unable to agree with the Commissioner or the AMWU that the slip added at the base of the notice given by Galintel had such an effect.

PN65

Then they go on to say:

PN66

It may have been preferable to reiterate the optional nature of any appointment of a bargaining representative -

PN67

and suggests how that might be done. So I think even this full bench makes it clear that there certainly is a vice in altering the notice in the way in which the employer has altered the notice in this case. It's simply that the full bench in the Galintel case didn't regard that alteration as sufficient to suggest that the agreement shouldn't be approved. I think I do take note that the inclusion of this sentence in the notice is a problem; it is a vice. Whether it's sufficient to suggest there hasn't been compliance with the legislation, I of course don't have a firm view.

PN68

Now, there's two aspects of that notice. One is the compliance with 188(c), I think it is - 188(a)(ii), which is the requirement to not put the matter to the vote until 21 days after the notice, and that's the matter which was the subject of the full bench decision to which Mr McNab refers. It was a breach of 188(a)(ii), that is - or 181(2). That's what that decision was about, that the notice of representational rights hadn't properly been given as I understand it. That's my understanding of what the issue was in that case. The second way in which the notice - the defect of the notice has potential relevance is in respect of 188(c), which is reasonable grounds for believing that the agreement has not been genuinely agreed to by employees.

PN69

That's where the point the CFMEU raises has got some potential validity, which is they're saying, "Well, if you look at the defect in the notice and you look at what the effect of that defect was, which was to have this very large proportion of employees nominate themselves as bargaining representatives - 21 in total - in the CFMEU's view, adds weight to the view that employees effectively understood that if they didn't nominate themselves or one of their fellow employees as a representative, then they wouldn't have a seat at the table, in the words of the CFMEU. Well, the facts of what happened does tend to support the contention that the addition of that sentence in the notice actually did change what happened because you had 21 people nominate as bargaining representatives.

PN70

So the link between the addition in the notice and the genuineness of the bargaining process and whether employees were incorrectly advised about their rights as a result of the change, that becomes an arguable matter. I don't take it any higher than that. I think the other issue in terms of genuine agreement that we should take into account is - and I don't put it any higher than this - it appears to me from the correspondence I've received that the employer did not necessarily intend to reduce some of the award conditions that the agreement arguably had the effect of reducing. In other words, some of the things which the employer has given undertakings in respect of were things which the employer didn't actually intend to change.

PN71

In response to a number of the matters that I've raised, the employer has said, "But our current practice is not to do this. Our practice is, 'Yes, of course. We follow that provision of the award.'" That suggests that employees may have been given the impression through the explanations about the proposed agreement given to employees, that they may have been given the wrong impression about the actual effect of the agreement. Now, those problems may well now be rectified by undertakings but it may be that when employees were voting for the agreement. They thought they were voting for something that meant something different from what it actually meant.

PN72

I don't put it any higher than that because the evidence in respect of that is not totally before me or totally clear. I'm saying based on the correspondence, I believe the employer when they have genuinely said in respect of a number of things, "Well, we didn't intend that and therefore we're quite happy to give an undertaking to fix that problem". There is a requirement as part of the process of reaching a genuine agreement that the employer must explain the effect of the agreement to employees. Now, generally speaking of course, issues about defects with the bargaining process are matters that should be dealt with during bargaining. That's why there are provisions in the legislation for scope orders and good faith bargaining orders, and for the tribunal to assist in the bargaining process under other provisions such as section 240.

PN73

Generally speaking, the nature of the bargaining process is not a matter that should be carefully examined at the point of approval of the agreements. That's not the primary - our function. So there has to be pretty significant matters to decide that we can't approve the agreement on the basis of section 188(c), that is, other reasonable grounds for believing the agreement has not been genuinely agreed to by employees. I'm just suggesting that in this particular case, the fact that there are a number of factors that come together certainly suggests that that's a matter that could require further careful consideration because of the matters I've raised.

PN74

My conclusion is that looking at all of the circumstances, I'm inclined to believe that the undertakings which we've received so far, which as Mr McNab has indicated, may well need to be added to, to deal with some remaining concerns. But I've signalled - which are in the CFMEU's correspondence - I'm inclined to think that the undertakings are so significant and of such wide import that they do result in substantial changes to the agreement. If the parties require me to do so, I can explain that in some more detail. But in saying, that's my preliminary view about this matter.

PN75

I would therefore like, at this point, ask the CFMEU to respond to the point that I've raised, which is I think, given the relatively small workforce, the fact that it has gone through a fairly lengthy process already and even if I accept what the CFMEU say about the fact that the problems and delays are not of the CFMEU's making, even if I accepted that - and I'm not saying I do - but even if I accepted that, it seems to me it would be extremely unfortunate if the employer and the employees had to go through, as Mr McNab correctly said, another process and then at the end of that face potentially a whole raft - new round of objections about the content of the agreement and/or the process.

PN76

So what I wanted to see is if I were to come to a final decision that I couldn't approve the agreement for the reasons that I've outlined, would the CFMEU be prepared to agree to a process and an outcome. The way I see it is this: is that if the employer was required to produce a revised version of the agreement which encapsulated all of the undertakings which have been offered so far together with undertakings that addressed the remaining points that were outlined in my letter of 23 March - so obviously the extent of that last group of undertakings is a matter for the company at this stage - if those matters were to be addressed, would the CFMEU then support the making of such an agreement?

PN77

If the CFMEU was prepared in principal to support the making of such an agreement, well, then clearly the process for getting to that point could be fairly truncated. That is, it could be done within 21 days and there be a reasonable expectation that there would likely be a positive vote and that the agreement could then be referred back to me for approval. We'd be able to have a truncated process. If that approach was adopted, then the matters in dispute in finalising the agreement document would be essentially those matters that are outstanding in that letter of 23 March and exactly how the company dealt with those matters.

PN78

So I just want to get some idea from the CFMEU about what their approach to the matter is likely to be.

PN79

MR BORG: I think we can agree to a truncated process with renegotiation on those matters which the Commissioner has flagged. That will in some way incorporate the undertakings and put them away into the body of the single document. Of course, I can't second guess what the outcomes of the negotiation process might be, but we'll leave it up to our organiser. I think we could agree to perhaps reinitiate a truncated process or go back to the original one, but I do see that as being, in some way, problematic, simply because of the notice of representation that went out the last few times. So I guess that will have to be a matter that's addressed.

PN80

But that notwithstanding, I do think that will be a possibility of course.

PN81

THE COMMISSIONER: Well, perhaps - and I'll ask Mr McNab his views on it in a moment - but in the event I did make that decision, if we could say a new notice would be put out which doesn't have the sentence in it, then within - that could be done tomorrow, basically - then you could have within, say, seven days - you could have - the company would provide a revised document that incorporates the undertakings already given together with its proposed response to the remaining items listed in the 23 March letter. Then within seven days of that, there could be - probably you'd want it within less - say within three days of that, you could have a meeting to discuss and seek to finalise the revised document.

PN82

You probably, just to allow for the fact that there might be some outstanding points there, could allow for a further meeting, say, two days later to consider any proposals that have been made at the previous meeting. Then you could have a notice of the time and date for vote and the circulation of the proposed agreement, and then seven days later, you could have the vote. So in terms of a process, that would perhaps cover the points that the CFMEU is raising?

PN83

MR BORG: Yes. In terms of the process and the timeframe, I think that would be acceptable, just notwithstanding my points I made earlier on - - -

PN84

THE COMMISSIONER: Well, that does overcome your point about the notice, doesn't it? Because there would be a new notice without the sentence.

PN85

MR BORG: Yes. I - the Commissioner is correct. In saying that, I'll just point out the last time around - it's not the first time the company did try to direct nominations for employees in that particular way.

PN86

THE COMMISSIONER: But you see - - -

PN87

MR BORG: That was only - - -

PN88

THE COMMISSIONER: But you see, we can't - I think there are two things in here you can't escape. One is you can't undo what has happened. What has happened happened so you can't undo that. So that's the first thing. And the second point is although it's clearly not appropriate to mislead employees about the nature of their representational rights, and you've - there's clearly arguments about what might have happened there, the fact is it's not illegal or contrary to the legislation for an employer to encourage somebody to become a representative. It's possible in certain circumstances that might breach good faith bargaining if it's done in a certain way, and you can raise that under the - - -

PN89

MR BORG: I accept that point, Commissioner. All I'm just saying about the - those particular nomination forms is that employees don't need to nominate themselves as bargaining representatives. I would imagine that they already have - - -

PN90

THE COMMISSIONER: Yes. We know that. That's established.

PN91

MR BORG: Okay. Well, we just don't want a situation in which the company extracts nomination forms just to exclude the union as the default bargaining representative by way of the nomination form. But that being said, I think the important thing is I think I should be talking about is that, yes, we can commit to a truncated timetable and that all being well, I think we can accept that process.

PN92

THE COMMISSIONER: Okay. Mr McNab.

PN93

MR McNAB: I may have to get specific instructions from clients, but what you're suggesting does conform with an approach the employer would like to engage in.

PN94

THE COMMISSIONER: Yes.

PN95

MR McNAB: Obviously, it's their preference not to have to serve another notice. It just seems the point that my learned friend makes, it's dealt with expressly in section 176, sub-section (4) of the Act. To avoid doubt, an employee who will be covered by the agreement may appoint under paragraph (1)(c) himself or herself as his or her bargaining representative for the agreement.

PN96

THE COMMISSIONER: Yes.

PN97

MR McNAB: So the Act specifically contemplates what has happened here. The fact that somebody has done that is not - - -

PN98

THE COMMISSIONER: No. That's clear. But what the potential - - -

PN99

MR McNAB: I can see that my friend's submission - - -

PN100

THE COMMISSIONER: I agree. You say - - -

PN101

MR McNAB: (indistinct) right over that.

PN102

THE COMMISSIONER: I totally agree with that. I'm just saying the vice is if you suggest to somebody that that's the only way that you could be effectively - the only way you could effectively participate in the bargaining. That's the vice. But it's a different issue.

PN103

MR McNAB: Pardon me, Commissioner.

PN104

THE COMMISSIONER: Yes.

PN105

MR McNAB: The other concern is the provisions of section 181(2).

PN106

THE COMMISSIONER: Yes.

PN107

MR McNAB: They're expressed in mandatory terms. Referring to the request to approve a proposed enterprise agreement, the request must not be made until at least 21 days after the day on which the last notice under section 173(1) - - -

PN108

THE COMMISSIONER: Exactly.

PN109

MR McNAB: - - - is given. Now, if we can - I'm not sure whether there's capacity under the Act to, by agreement, truncate the times in the way that you've suggested, and if there is, we'd prefer that to happen. But if there isn't - - -

PN110

THE COMMISSIONER: I don't think there is.

PN111

MR McNAB: - - - obviously, we'd be concerned to have the times conform with the requirements of that section.

PN112

THE COMMISSIONER: Yes. Also, when I went through my outline, I was intending the time from step 1 to the final step to be exactly 21 days.

PN113

MR McNAB: Well, the penultimate step was a notice of the time and date at vote.

PN114

THE COMMISSIONER: Yes. It has to be seven days prior to the vote.

PN115

MR McNAB: Yes. So that's 21 days after the - - -

PN116

THE COMMISSIONER: No, the vote, the actual vote, has to be 21 days.

PN117

MR McNAB: No, the request - - -

PN118

THE COMMISSIONER: No. I think it has been found that what the word "request" there is referring to is not the notice about the time of date for voting but the actual voting, that it's not necessarily the finishing of the voting; it's the starting of the voting. What I'm suggesting is that there be a timetable that is 21 days in length, the first day being the issuing of the new notice and the last day being the day of voting.

PN119

MR McNAB: I think it might be appropriate to get a form of instructions on that, but it certainly would seem to conform with the instructions I've had previously. Also, we'd want to put beyond doubt that if this is agreed to as a force, that there's not going to be further applications made in relation to what has happened previously in relation to good faith bargaining or the like because we don't want said at the next step that what happened in December last year somehow infects the whole process.

PN120

THE COMMISSIONER: Yes, I think that's right. I think the two issues that the CFMEU have reserved their position in respect of - effectively in respect of this process - would be two matters. One is they're at liberty to obviously - sorry. It's actually three matters. Firstly, if the revised document doesn't accurately reflect the undertakings - or properly reflect the undertakings that have already been offered, obviously there's room for argument about that.

PN121

MR McNAB: Yes.

PN122

THE COMMISSIONER: Secondly, there's room for argument about how those reserved matters in the letter of 23 March are dealt with and presumably they're matters that can be dealt with those bargaining steps that have been outlined. Thirdly, the CFMEU has flagged if, obviously, the company, during this 21-day period doesn't comply with the spirit of this process, then they may want to raise some objections to that.

PN123

MR McNAB: It's not a free kick.

PN124

THE COMMISSIONER: I think they're probably the three - - -

PN125

MR McNAB: But what has gone on in the past - - -

PN126

THE COMMISSIONER: But what has gone on in the past would be in the past.

PN127

MR McNAB: Yes.

PN128

THE COMMISSIONER: Yes. I think that's my understanding of the position, and I'll get the CFMEU to confirm that after you've conferred with - - -

PN129

MR McNAB: That will only take a short time.

PN130

THE COMMISSIONER: Yes. Of course. So look, what I suggest we do, if this is okay with you, Mr Borg, is we'll adjourn for five or 10 minutes. That will give you the opportunity, Mr Borg, to consider confirming what I've raised. It will give Mr McNab an opportunity to talk to the people in Darwin and it will give me a chance to just simply write out those proposed steps so I can read them out in a clear way. I think I went through them adequately, but I want to just make sure that is understood. All right? Thank you. We'll adjourn for the next five to 10 minutes.

<SHORT ADJOURNMENT [1.54PM]
<RESUMED [2.15PM]

PN131

THE COMMISSIONER: Yes.

PN132

MR McNAB: Before we move further, there's just one aspect of the matters that you raised and the reasoning that you were basing your suggestions on that follows from the Galintel case.

PN133

THE COMMISSIONER: Yes.

PN134

MR McNAB: If I could just make some brief submissions in relation to that because it may affect the way you're thinking. The alleged bias in the Sitzler notice of 9 December 2011 is the inclusion of the words, "I ask that you complete the attached notification form and return it to me by Friday, 13 January 2012".

PN135

THE COMMISSIONER: Yes.

PN136

MR McNAB: What you're suggesting is remove that from the form and reissue the notice?

PN137

THE COMMISSIONER: Yes.

PN138

MR McNAB: In the Galintel case, the form in question is found at paragraph 9 of the full bench decision. It had a slip and it had the words, "Please complete the following slip and return the slip to Mark Vincer, manufacturing manager".

PN139

THE COMMISSIONER: Yes.

PN140

MR McNAB: Now, I would submit that there is no material difference - and in this case, the full bench held there was no - the inclusion of that slip which included those words did not render the form invalid. What I would be submitting is that in the present case, the form of words which is said to render the form invalid are really, to all intents and purposes, exactly the same as the form of words in the - - -

PN141

THE COMMISSIONER: Yes. I didn't draw any different conclusion from you than that. You're right about that. I think I'm making three points, really. Because your submission is right and I was well aware of that. It has generally been found - and I don't think it has actually been specifically tested - but the general approach in the tribunal has been where an agreement is unable to be approved, it's necessary to issue a new notice and then vote 21 days later. Now, I know there is a provision in the Act that says if earlier notices have been issued, you can - if a notice is issued earlier than the 21 days, then that is okay. But I'm just saying the general approach has been if an agreement has been rejected, you need to issue a new notice and then go through the process.

PN142

I think the argument for that is that because you'll be making a new agreement, you'll need to follow the processes that are required for making that new agreement. That's the - - -

PN143

MR McNAB: The provision I've referred you to, Commissioner, is section 173, sub-section (4):

PN144

An employer is not required to give a notice to an employee under sub-section (1) in relation to a proposed enterprise agreement if the employer has already given the notice under that sub-section within a reasonable period before the notification time of the agreement.

PN145

THE COMMISSIONER: Yes, I understand that.

PN146

MR McNAB: In the context of this matter, if the notice that was given on 9 December 2011 is valid, we would submit that it's a reasonable time.

PN147

THE COMMISSIONER: I think the argument against that is that if you - you couldn't argue that that section 173(4) enables you to rely on the notice that you issued for the previous agreement was adequate for the making of - the bargaining process for the making of a new agreement.

PN148

MR McNAB: I'm not sure why that follows. Certainly I myself have made assertions - - -

PN149

THE COMMISSIONER: I'm just saying - - -

PN150

MR McNAB: It does seem to be an issue, and the point is that when the notification - the notice is sent out under section 173(1), there is no agreement, and in fact, there might not even be a proposed agreement. It's just an invitation to nominate bargaining - - -

PN151

THE COMMISSIONER: It's initiating the bargaining, you see.

PN152

MR McNAB: Correct, and there might be nothing there. Then the bargaining takes place, an agreement - it is then formulated based on the proposed agreement or something else. But in this case - - -

PN153

THE COMMISSIONER: I accept there's no decision that I'm aware of that makes that explicit. I'm just saying that in every case that I know of where agreements have been rejected, what has happened is a new notice has been issued and there has been at least a 21-day period before the next vote. I'm just saying that's what's the conventional - - -

PN154

MR McNAB: But that's what you understand as - - -

PN155

THE COMMISSIONER: That's what I understand as the practice.

PN156

MR McNAB: The practice isn't apparent from the decisions because it - all it is, is generally the applications are rejected and we don't know what happens thereafter.

PN157

THE COMMISSIONER: Exactly. I'm just saying that's my experience of it. But in any case - so I'm not in a position to fundamentally disagree with what you're saying. I'm just saying that's my inclination, and my inclination is that 173, paragraph (4) is really about the situation where notices have been issued significantly before the 21-day period and doesn't necessarily translate from one bargaining process to a new bargaining process. But I accept that it's not - I'm certainly not making that as a decision. In my view, the other factors in this matter is - the Galintel decision, as I explained, is about 181(2) - that is, it's about the issuing of the notice - and what I'm saying is that in this case, there's two factors that are a bit different from this Galintel case.

PN158

One is the general argument about genuine bargaining. As I said, I haven't made any decision about that. All I've said is there are matters that are arguable in respect of that. Also there's the issue of the fact that in this case there's some evidence that this additional sentence actually did have an effect. One of the reasons why it wasn't seen as a problem in the Galintel case is there was no evidence that it had any effect. They specifically refer to that. They say there is no evidence that any of the six employees covered by the agreement were misled into a belief that employment was - appointment was mandatory.

PN159

MR McNAB: Although in that case at paragraph 10, it makes comment that of the - five of the six Galintel employees filled in the form appointing one or two fellow Galintel employees as their bargaining representatives.

PN160

THE COMMISSIONER: Yes.

PN161

MR McNAB: And that's not - - -

PN162

THE COMMISSIONER: I'm not just saying their number is the only evidence here in this case. There are a number of issues that have been raised by the CFMEU that were raised by Drake SDP. I'm just saying I'm not making any concluded view about that whatsoever. I'm just saying that given the nature of the issues that have been raised, it would be better to have a process which was truncated, was 21 days long, and started with a new notice. It seems to me that if you - see, if you think about it, if an agreement had been rejected, you've got a new bargaining period effectively. Not that there's a bargaining period under the Act any longer, but you've got a new bargaining process if I could put it that way, and presumably people could have a right to say, "I want to be a bargaining representative".

PN163

MR McNAB: If this notice was served - - -

PN164

THE COMMISSIONER: And 21 - put 21, there's no problem. I agree with you. There's absolutely nothing in the legislation that says you can't have 21 employee bargaining representatives out of 25. Nothing wrong with that whatsoever. I mean, if it produces inefficiency in bargaining, which is what the CFMEU argues it might do, that's a matter to raise under good faith bargaining provisions. If it produces inefficient bargaining under good faith bargaining provisions, you can do something about that. You can issue orders about reducing the number of bargaining representatives. That can be done, but that's not before me. That's not an issue here.

PN165

MR McNAB: Yes. Well, those are submissions I make in relation to that matter.

PN166

THE COMMISSIONER: Yes. All right. Well, what do you say - - -

PN167

MR McNAB: Pardon me.

PN168

THE COMMISSIONER: Yes, of course.

PN169

MR McNAB: Well, it's really - subject to the union clarifying their position, then having regard to the comments the Commission has made in relation to the submission that I've put, the company would be prepared to submit to that process. But obviously on a very tight - - -

PN170

THE COMMISSIONER: Yes. All right. So I'll ask the CFMEU to respond in a moment. What I propose is a decision in the following points, and I'll just - that's subject to getting confirmation from the CFMEU about this. The first point would be that the application is dismissed for the reasons that I outlined earlier about significant change to the agreement in the overall context.

PN171

Secondly, the CFMEU and the company have agreed to a process to finalise the agreement as follows: (a) notice to be issued tomorrow without the additional sentence; (b) within seven days the company provide the CFMEU and employees with a revised draft agreement which amends the existing proposal to reflect the undertakings offered and the company response to the outstanding CFMEU issues listed in the Fair Work Australia letter of 23 March; (c) within three days of the company draft, there will be a meeting to discuss that; then - obviously that's involving the CFMEU and bargaining representatives - (d) is two days after that meeting, there will be a further meeting to discuss the matters, including responses to matters raised in the first meeting; then (e) within two days of that second meeting, there would be a proposed agreement circulated together with a notice of time and place for voting seven days - sorry, notice such that it would provide seven days' notice and would be 21 days after the issue of the notice of representational rights.

PN172

The third point would be that the CFMEU not raise good faith bargaining or genuine agreement issues in respect to the process prior to today's hearing if a revised agreement is submitted for approval consistent with this process. I think that's where we got to so I'd just like to see firstly if the CFMEU are comfortable with that approach?

PN173

MR BORG: Commissioner, I think broadly we're comfortable with that position. What I should say however is that in regards to the undertakings, insofar as the minimum standards in the modern award and the National Employment Standards, that's obviously (indistinct) what we can't flag however is our dissatisfaction with other bargaining representatives to this agreement.

PN174

THE COMMISSIONER: Of course. You can't - - -

PN175

MR BORG: (indistinct) be satisfied with the bargaining process going back before, back in December.

PN176

THE COMMISSIONER: I understand that, completely understand.

PN177

MR BORG: So I think there probably is a bit of room at this - we'll probably need a bit of room in terms of bargaining, not just move on to those areas that are subject to the undertaking but also any other issues that bargaining representatives might want to take up. It might indeed open up as a result of the company accepting the undertakings as well.

PN178

THE COMMISSIONER: Well, we can't control what other people might raise. What we're trying to do in this process is to ensure that if the company produces a draft and negotiates consistent with this framework, the CFMEU will work within that framework. That doesn't necessarily mean there won't be arguments about particular points and it doesn't mean there might not be other issues that are raised by other bargaining representatives. I accept that.

PN179

MR BORG: Okay. I think it was just in reference to point 2(b) perhaps.

PN180

THE COMMISSIONER: Yes.

PN181

MR BORG: And say - - -

PN182

THE COMMISSIONER: Within seven - - -

PN183

MR BORG: Which appears to confine the matters to those raised as a result of the undertakings that were there on 23 March.

PN184

THE COMMISSIONER: No. It's within three days, there will be a meeting to discuss the draft agreement.

PN185

MR BORG: Well, I might be at the wrong place here, but according to my notes, what I do have is a proposed draft within seven days to reflect the undertakings and - - -

PN186

THE COMMISSIONER: And that's what the draft would reflect.

PN187

MR BORG: Right.

PN188

THE COMMISSIONER: So that's what the drafters reflect.

PN189

MR BORG: So if it's jut - - -

PN190

THE COMMISSIONER: Yes, go on.

PN191

MR BORG: Sorry. Just I don't understand it. That's all. So it's the company will produce a draft - - -

PN192

THE COMMISSIONER: Yes.

PN193

MR BORG: - - - reflecting the undertakings and the requirements of (indistinct) on the 23rd.

PN194

THE COMMISSIONER: Yes.

PN195

MR BORG: For all intents and purposes, although it's a truncated process of bargaining, I think representatives are still entitled to bargain as they see fit. Is that understanding correct?

PN196

THE COMMISSIONER: Yes, that's right. You'll have the meeting and you're correct. Issues will be raised there. You can't control what bargaining representatives might raise there, but there's a truncated process and at the end of that process, there will be a document and people will vote on that document, and they vote for it and they vote against it. It's not an agreement unless people vote for it.

PN197

MR BORG: That's okay. Yes.

PN198

THE COMMISSIONER: Okay. So the CFMEU accept that approach. Could we just check that the company is okay with that approach?

PN199

MR McNAB: Sorry. Just to clarify, in terms of the notice to be issued without the additional sentence, perhaps just for - - -

PN200

THE COMMISSIONER: Clarity, yes.

PN201

MR McNAB: - - - clarity, the sentence - if we actually put the - - -

PN202

THE COMMISSIONER: Put the text of the sentence in.

PN203

MR McNAB: - - - text in there. Otherwise, I understand that the details of the nominated bargaining representative on the second page of the form will remain in the form. The only thing that's coming out of the form is the words, "I ask that you complete the attached notification form and return it to me by" - whatever date.

PN204

THE COMMISSIONER: Well, the second part - sorry. I just have to find the document. Thank you for raising that. It's important to get it clear. I've got the form here somewhere.

PN205

MR McNAB: If I hand it up - - -

PN206

THE COMMISSIONER: Yes.

PN207

MR BORG: It's appendix 1 attached to form 17, if that could be of an assistance, of the application.

PN208

THE COMMISSIONER: Thanks, Mr Borg. That's correct. So yes. I don't think there's a problem with providing an employee with a form to nominate. I think the problem is with the sentence in the notice. I think that's correct, yes. It's simply a matter of removing the sentence.

PN209

MR McNAB: The other matter - it depends on the tribunal's view. One option as opposed to dismissing the application is simply allowing the application to be withdrawn.

PN210

THE COMMISSIONER: Yes. Well, there's some controversy about whether that's something that can actually be done. There's some differing views in the tribunal about that matter I'm afraid.

PN211

MR McNAB: It's a varied jurisprudence, isn't it?

PN212

THE COMMISSIONER: Because there is a requirement in the legislation for the agreement to be put forward, you see; the application to be made.

PN213

MR McNAB: I'm told that there is authority that - - -

PN214

THE COMMISSIONER: Yes, there is. There is a particular decision by a particular member that allowed an agreement to be withdrawn. There is one such decision. But there are also decisions that are contrary to that. So I'm just saying there isn't a clear position about that.

PN215

MR McNAB: Yes.

PN216

THE COMMISSIONER: I mean, I think it would be more appropriate to do it in the way I suggested.

PN217

MR McNAB: If the tribunal pleases.

PN218

THE COMMISSIONER: I'm not necessarily saying it's impossible to do it the other way, but I'm just saying for abundance of caution I prefer to do it that way. All right. So we'll conclude on that basis and we'll get those three points out as part of a decision so that it's available to the parties. So is there anything else that needed to be dealt with?

PN219

MR MARGETIC: Excuse me. Could I ask - - -

PN220

THE COMMISSIONER: Yes.

PN221

MR MARGETIC: It's Steve Margetic.

PN222

THE COMMISSIONER: Yes.

PN223

MR MARGETIC: Could I ask if there is no date by which a response is requested on the form, how we may struggle to proceed within those timeframes.

PN224

THE COMMISSIONER: Well, I don't see any reason why the employer can't put out a notice that reflects the agreed process that we've arrived at today. There's no reason why the employer can't say the arising - put out a notice to employees saying, "Arising from the proceedings here today, the following process will be utilised to finalise the agreement", and you just set out what has been agreed to here today. That makes it very clear that if people want to say something, they'll say it within that process, doesn't it?

PN225

MR MARGETIC: Okay. So if that is in the cover advice of the nomination form, then that should suffice?

PN226

THE COMMISSIONER: That's right. Because you can have anyone you like at the meeting. What I'm saying is that you have to have bargaining representatives there, but other people can be there, depending on what the parties want.

PN227

MR MARGETIC: Thank you.

PN228

THE COMMISSIONER: My point is so long as people are clear on what the process is, you can have those meetings and you can bargain with whoever are the bargaining representatives at that time.

PN229

MR McNAB: The other point I wanted to - - -

PN230

THE COMMISSIONER: Yes.

PN231

MR McNAB: I haven't looked at the calendar and gone through the times and when all these events fall, but it should be a reference to two business days.

PN232

THE COMMISSIONER: I am aware of - yes.

PN233

MR McNAB: If the Commission - I mean, obviously the company and all employees want to get this finalised.

PN234

THE COMMISSIONER: Yes. But we've got to have - - -

PN235

MR McNAB: However, you don't want to - we don't want to be in a position where we've fixed where the timetable is impossible to comply with.

PN236

THE COMMISSIONER: I agree.

PN237

MR McNAB: So if you make it business days so that there's a realistic - - -

PN238

THE COMMISSIONER: I accept that.

PN239

MR McNAB: - - - prospect of - - -

PN240

THE COMMISSIONER: And if it ends up being 23 days rather than 21 days because of Easter, I understand that might happen. Yes. No, I appreciate that. All right. I think that concludes the matter, unless there's anything further. Okay. We'll adjourn.

<ADJOURNED INDEFINITELY [2.40PM]