B2013/1213, Transcript of Proceedings [2013] FWCTrans 742 (24 September 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1048863-1

DEPUTY PRESIDENT ASBURY

B2013/1213

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
and
Incitec Pivot Limited
(B2013/1213)





Brisbane

1.11PM, MONDAY, 16 SEPTEMBER 2013

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

PN1

THE DEPUTY PRESIDENT: Good afternoon. I’ll just start by taking appearances.

PN2

MS L. BUTLER: Thank you, your Honour. May it please the tribunal, Butler, initial L, for the Australian Manufacturing Workers Union.

PN3

THE DEPUTY PRESIDENT: Thanks, Ms Butler.

PN4

MS N. TRAILL: If it please your Honour, Traill, initial N, for the CEPU.

PN5

THE DEPUTY PRESIDENT: Thanks, Ms Traill.

PN6

MS S. RICHARDS: If it please the commission, Richards, initial S, appearing on behalf of the respondent. With me is MS. S. OWEN and on the phone will be Mr Colm Friel and Mr Colly Webb.

PN7

THE DEPUTY PRESIDENT: Thank you. All right, as I understand it, the applications for protected action ballot orders in both cases are contested. That’s the company’s position?

PN8

MS RICHARDS: Yes, Deputy President.

PN9

THE DEPUTY PRESIDENT: And the basis of the objection appears to be that the company believes that the union parties are engaging in surface bargaining and haven’t approached bargaining with an open mind.

PN10

MS RICHARDS: Further to that, Deputy President, it’s a contested position. The company believes that the union and employee representatives walked away from negotiations on 2 September. The framing of that from the union’s position is that it was agreed. We don’t believe it was agreed. It was accepted but not agreed. The company went through a process of trying to push negotiations in terms of drafting a proposed document but, as yet, we haven’t reformed.

PN11

THE DEPUTY PRESIDENT: Okay, all right, well, I guess we have to hear the evidence about it. Given that the company is objecting to the making of the protected action ballot order we need to have some evidence. Are the unions calling any evidence?

PN12

MS BUTLER: Yes, thank you, your Honour. The AMWU intends to rely on the evidence of Mr Finch who has provided a statement to the tribunal in this matter already. As foreshadowed earlier, since the making of that statement further correspondence has been exchanged between the parties and we intend to adduce that evidence through him.

PN13

THE DEPUTY PRESIDENT: All right. So as the applicant are you ready to proceed first?

PN14

MS BUTLER: Yes, thank you, your Honour.

PN15

THE DEPUTY PRESIDENT: Well, do you want to make an opening submission? You don’t have to. You can just call your witness, whatever you prefer to do.

PN16

MS BUTLER: Thank you, your Honour, the AMWU’s opening submission is that, pursuant to section 437 of the Act, the statutory criteria has been made out and therefore we respectfully submit that an order must be issued in accordance with section 443 of the Act. I note that the respondent’s objections largely relate to whether or not the AMWU has been negotiating in good faith. We adamantly reject that and I can make further submissions at a later stage, your Honour, in relation to that once the evidence has been heard.

PN17

THE DEPUTY PRESIDENT: Okay. So you’re ready to call Mr Finch?

PN18

MS BUTLER: Yes, thank you.

<RICHARD FINCH, AFFIRMED [1.15PM]
<EXAMINATION-IN-CHIEF BY MS BUTLER [1.16PM]

PN19

MS BUTLER: Mr Finch, it’s Lisa Butler speaking here. Have you given a statement in relation to this application?---Yes, I have.

PN20

Is that statement two pages long and 10 paragraphs long?---Yes, it is.

PN21

Is that a true and accurate reflection of your version of events?---It is.

PN22

Thank you, Mr Finch. Mr Finch, do you have any additional evidence to give since the making of that statement in relation - or are you able to provide the tribunal with an update on what’s happened with negotiations since the making of your statement?---Yes, on Friday afternoon I was sent a letter from the company with concerns over not bargaining in good faith. I believe there’s no substance to this. I believe the AMWU has at all times bargained in good faith. As a matter of fact, we’ve actually allowed the delegates to go and bargain without organiser representation a number of times so we didn’t frustrate the process due to the unavailability of organisers.

PN23

Thank you, Mr Finch, and has the AMWU responded to that correspondence?
---Yes, we did send a response back, yes.

PN24

And is it the AMWU’s position that it intends - well, continues to bargain in good faith with the respondent but also that it intends to participate in a meeting scheduled for 19 September?---That was correct and that’s actually - I won’t be available but I’ve arranged for Lloyd Pearce the site delegate to sit in those negotiations on my behalf, as he’s done in the past, and we made it very clear with the company when negotiations ceased at the last round of negotiations that the AMWU remains willing and is happy to negotiate at any time that the company feels that it can move negotiations on. At the last point of negotiations the company had told us that they don’t believe they can go any further so that’s where we believe the negotiations are now.

**** RICHARD FINCH XN MS BUTLER
PN25

Thank you, Mr Finch. Your Honour, I have no further questions.

PN26

THE DEPUTY PRESIDENT: Well, we’ll mark Mr Finch’s statement as exhibit 1.

EXHIBIT #1 STATEMENT OF RICK FINCH

PN27

THE DEPUTY PRESIDENT: Mr Finch, the letter that you received is dated 13 September 2013 and it’s under the hand of Mr Peter Ware. Is that the case?
---I believed it was sent to me from - I haven’t got it in my hand at the moment. I’m on the road between Townsville and Mount Isa.

PN28

THE DEPUTY PRESIDENT: All right, well, I’ve got a letter here that says, “Dear Rick, I write in relation to our negotiations for replacement of the Phosphate Hill Enterprise Agreement. Disappointing that in our last meeting the employee representative group determined that negotiations would cease.” Does that sound familiar?---Yes, I believe that’s the letter, Commissioner.

PN29

THE DEPUTY PRESIDENT: All right, and the response from Mr Webb dated 13 September. So we’ll mark the letter dated Friday, 13 September as exhibit 2, and the response as exhibit 3.

EXHIBIT #2 LETTER DATED FRIDAY, 13/9/13
EXHIBIT #3 RESPONSE FROM MR WEBB DATED 13/9/13

PN30

THE DEPUTY PRESIDENT: All right, thanks for that. That’s your evidentiary case?

PN31

MS BUTLER: Yes, thank you, your Honour.

PN32

THE DEPUTY PRESIDENT: Ms Traill. I’m sorry, do you want to cross-examine Mr Finch?

**** RICHARD FINCH XN MS BUTLER
PN33

MS RICHARDS: No, Deputy President.

PN34

THE DEPUTY PRESIDENT: So you understand if you don’t cross-examine Mr Finch, everything he’s stated in his statement and in his evidence goes into evidence uncontested?

PN35

MS RICHARDS: Your Honour, Mr Colm’s evidence will be in conflict with Mr Finch’s - - -

PN36

THE DEPUTY PRESIDENT: Well, then you’d better put to Mr Finch the basis of that because otherwise he’s not being given an opportunity to comment on the conflicting evidence and I’m not able to put very much weight on the conflicting evidence at all.

PN37

MS RICHARDS: Okay. All right, thank you.

<CROSS-EXAMINATION BY MS RICHARDS [1.20PM]

PN38

MS RICHARDS: Mr Finch, it’s Shannon Richards from Incitec Pivot?---Yes.

PN39

Mr Finch, do you have in front of you your letter dated 13 September? It’s been marked exhibit 3 so your letter to Peter Ware?---That was a response letter. No, I don’t have a copy of that.

PN40

Okay. Mr Finch, in that letter it makes reference to the AMWU indicated to you at that meeting that it intended on filing an application for a protected action ballot order in the Fair Work Commission?---Yes, that’s correct.

PN41

So can I just check with you that you had an expressed conversation in that meeting around taking protected action?---Yes, we did and basically it went in the context of all parties - we can’t go any further - all parties will have to go and consider their options and do whatever they need to do to move forward with the negotiations. So we - and then we actually expressly said to the company that if they wanted to put it to a vote they’re free to. If they wanted to improve the offer, they’re free to. Whatever the company was prepared to do we were happy enough to do it and we would go and explore our options and put all those options in place.

**** RICHARD FINCH XXN MS RICHARDS
PN42

That meeting, you’ve got in your letter, took place on Monday, 9 September. Are you certain about that date?---Not without being able to look at a diary and go back into my calendar.

PN43

I put it to you, Mr Finch, that that would’ve been 2 September. No meeting took place on the 9th?---What I’m saying, I would have to check my electronic diary to reassure of that date but it was definitely the second meeting of the full week of EBA negotiations. We had the week fully blocked out and laid out. Each was - we were very - wanted to make sure of what the company’s intentions were because the company actually agreed with us and suggested that we can’t go any further.

PN44

Sorry, can I just play that back to you? Did you say that the company said it couldn’t go any further, the negotiations couldn’t go any further?---What I said the company had agreed that neither party could go any further and that they had to go - all parties had to look at their options and decide which way they were going to go, whether we’re going to be able to negotiate any further from the point we’re at at that point. It’s at that time that the AMWU said they were willing to negotiate at any time in the future, that the company let us know and that from there we would be examining all our options.

PN45

So when there was the discussion around the impasse in negotiations did the company seek to put anything in place to progress those negotiations?---No.

PN46

With respect to your log of claims that was produced to the company at the early stages of negotiations, are you able to identify any significant departures from your initial log of claims?---Not at the moment, no.

PN47

MS BUTLER: Objection, your Honour.

**** RICHARD FINCH XXN MS RICHARDS
PN48

THE DEPUTY PRESIDENT: Well, hang on a minute. Sorry, we’ve got an objection. Sorry, Ms Butler.

PN49

MS BUTLER: Thank you, your Honour. The AMWU objects on the basis of relevance. I don’t know that any concession made by Mr Finch or the AMWU is relevant in relation to this particular application.

PN50

THE DEPUTY PRESIDENT: Well, what we’re looking at is whether parties were genuinely trying to make an agreement so I’m going to allow the question but I think, you know, both parties need to know it’s not whether they’re bargaining in good faith, it’s whether they’re genuinely trying to make an agreement. That’s the terms of the statute so we can continue but what I’m hearing is you’ve had a heap of meetings that you’ve reached an impasse and no-one is refusing to have a further meeting and you’re trying to reach an agreement but, anyway, if you want to continue.

PN51

MS RICHARDS: Would you like me to respond to that, Commissioner, or finish with Mr Finch?

PN52

THE DEPUTY PRESIDENT: No, finish talking to Mr Finch. I’ll allow the question but it is not about bargaining in good faith. It’s about genuinely trying to make an agreement. They’re not the same thing.

PN53

MS RICHARDS: Thank you, your Honour.

PN54

Sorry, Mr Finch, I don’t know that we heard your answer?---Could you repeat the question so I don’t get it wrong? What was the question again?

PN55

I’ll do my best to repeat it. From the initial log of claims that you presented to the company has there been any significant departure from any of the terms in that log?---What do you mean by “departure”?

**** RICHARD FINCH XXN MS RICHARDS
PN56

Has there been any movement by the employees or union representatives from that initial log of claims?---All we’ve been able to do so far is go through, do some wordsmithing in some of the clauses and whatnot. Anything that seemed to have a monetary value to it, the company was saying no to. Anything that didn’t have a monetary value and it was some wording, wordsmithing, to tidy up the clause to better give it the rubber on the road, the company worked with us to do that hence what we used - we did that on the Monday knowing that the company had a position they weren’t - you know, they weren’t improving the offer at all so what we said was, “Look, rather than getting everyone bogged in the trenches here, let’s agree to try and work through, get clauses in the agreement we can agree to now rather than wait until everyone has an opinion or has their feet firmly planted on the ground.” So we worked through that to try and get some momentum in the process only, at the end of the Monday, to get to a point where the process was exhausted.

PN57

And so, Mr Finch, after one of the last meetings, I think it was 2 September, where there was another discussion around proposed wage rates or scope of wage rates, was there a genuine attempt to discuss that in detail with the employee reps and the body of the workforce?---I believe that when - that happened at the meeting the week before where the organisers weren’t at the table.

PN58

Thank you, Mr Finch. That’s all I have.

PN59

THE DEPUTY PRESIDENT: Thank you. Did you have re-examination, Ms Butler?

PN60

MS BUTLER: No, thank you.

PN61

THE DEPUTY PRESIDENT: Thanks - - -?---Commissioner, can I just put a bit of qualification on that too, please?

**** RICHARD FINCH XXN MS RICHARDS
PN62

Yes, provided I’m going to let - - -?---I’m happy for you to pull me up if you think I’m going in the wrong direction.

PN63

No, just provide - - -?---What I mean, the concessions that were made were by the SBU, the single-bargaining unit, which is made up of delegates. My understanding is that they had dropped off from the 6 per cent wage claim they had as they did that to try and get the company to come back with a counter offer which I believe hadn’t come back to date.

PN64

Okay, do you want to reopen your cross-examination on that?

PN65

MS RICHARDS: Thank you, your Honour.

PN66

Sorry, I didn’t quite follow what you were saying, Mr Finch. Are you saying that the single-bargaining unit came down from the 6 per cent that had been there sought-after wage increase?---That’s my understanding. I have to also say that I wasn’t at that meeting. I was in Brisbane. However, what was reported to me was that the company - the employees, the delegates, had moved off the 6 per cent trying to get the company to move. However, the company hasn’t moved off the first original offer put out there.

PN67

Okay, thank you, your Honour. I don’t need to follow up.

PN68

THE DEPUTY PRESIDENT: Okay.

PN69

MS BUTLER: No, thank you.

PN70

THE DEPUTY PRESIDENT: All right, thanks for giving your evidence, Mr Finch. You’re excused. We’ll have to disconnect the call because we’ve got another witness from the CEPU?---That’s fine. I’ve got to keep travelling anyway so thank you.

**** RICHARD FINCH XXN MS RICHARDS

<THE WITNESS WITHDREW [1.29PM]
<PAUL MICHAEL CAMERON, AFFIRMED [1.30PM]
<EXAMINATION-IN-CHIEF BY MS TRAILL [1.30PM]

PN71

MS TRAILL: Hi, Paul, it’s Nisha from the CEPU. Can you hear me okay?
---Yes, Nisha, I can hear you.

PN72

That’s great. Just for the record could you please state your full name, thanks?
---It’s Paul Michael Cameron.

PN73

Fantastic. Paul, I’ve got before me a statement here. Could you just confirm that you have in fact prepared a statement in relation to this application?---Yes.

PN74

And with respect to that application it’s got your name on it, it’s dated 13 September and is two pages in length. Is that correct?---Yes, that’s correct.

PN75

Can you please verify that this statement is in fact a true and accurate reflection of your account of the current negotiations?---Yes, it’s true and correct.

PN76

Is there anything further that you would like to add to your statement?---Just that we remain ready and willing to reach agreement with the company and they have scheduled another meeting for the (indistinct) September and I am currently making arrangements to try and attend that meeting.

PN77

Thanks very much, Paul, I appreciate that. Your Honour, we rely on Mr Cameron’s statement as our evidence and have nothing further to add.

PN78

THE DEPUTY PRESIDENT: Thank you. Okay, we’ll mark Mr Cameron’s statement as exhibit 4.

EXHIBIT #4 STATEMENT OF PAUL CAMERON

PN79
**** PAUL MICHAEL CAMERON XN MS TRAILL

THE DEPUTY PRESIDENT: Do you have cross-examination?

PN80

MS RICHARDS: Your Honour, I don’t have Mr Cameron’s statement.

PN81

THE DEPUTY PRESIDENT: I’m sorry, just let me give you a look at it. Do you want to stand the matter down for a few minutes while you have a look?

PN82

MS RICHARDS: If you wouldn’t mind. In actual fact, unless I’m mistaken, it looks like a carbon copy of Mr Finch’s. Would that be accurate?

PN83

MS TRAILL: It’s fairly similar, yes.

PN84

MS RICHARDS: That’s fine, thank you, your Honour.

PN85

THE DEPUTY PRESIDENT: Okay, do you want to cross-examine on it?

<CROSS-EXAMINATION BY MS RICHARDS [1.33PM]

PN86

MS RICHARDS: Mr Cameron, I’ve asked these same questions to Mr Finch so I’ll run through them again with you. Were you in attendance on the meeting of 2 September 2013?---Yes, I was.

PN87

At that meeting did you notify the company that an impasse had been reached and that you’d be seeking to engage in industrial action?---It was agreed by the company and by the bargaining unit that an impasse had been reached, yes. I can’t recall specifically if we said we’ll be seeking industrial action.

PN88

And do you recall in that meeting discussion by management representatives about drafting a proposed document to keep negotiations on track?---Yes, once we agreed that an impasse had been reached we sort of put it to them that they could still go ahead and create a document which they said they would do and then put it to the members to vote.

**** PAUL MICHAEL CAMERON XXN MS RICHARDS
PN89

Mr Cameron, with respect to your initial log of claims are you aware of any significant departures you or your members have made from that log?---Yes, we’ve made quite a few significant departures from the original log where we were seeking wages that are very similar to another site within the company, which is Gibson Island. We’ve now given up on our original log of claims and we’re just trying to keep what we have in our current EA.

PN90

So what’s your current log of claims with respect to wage increases?---It was, Gibson Island rates.

PN91

That’s your present position?---Our present position now is – I think our last offer was six percent for three years.

PN92

Okay. So at that meeting of 2 September the final position of the union reps and the employees was six percent by three years?---It wasn’t well, we put that offer out, we received no counter offer so that offer probably still stands.

PN93

Sorry so if I can just clarify the company haven’t come back to you with proposed increases?---No.

PN94

At all?---No.

PN95

Okay. Thank you Mr Cameron that’s all I have your Honour.

PN96

THE DEPUTY PRESIDENT: Okay. Re-examination Ms Traill?

PN97

MS TRAILL: No your Honour we have nothing further to add.

PN98

THE DEPUTY PRESIDENT: Okay. Thank you. Thanks for giving your evidence Mr Cameron you are excused?---Thank you.

<THE WITNESS WITHDREW [1.36PM]

PN99

THE DEPUTY PRESIDENT: You ready to call your witness? Would you like to make an opening statement?

PN100

MS RICHARDS: No your Honour, we’ve detailed in our outline of submissions our general position. I certainly understand and appreciate the comments you have made in terms of the differentiation between the two, but I don’t think I need to add anything over and above that.

PN101

THE DEPUTY PRESIDENT: All right, thanks. I mean, it’s just that if you can show that parties are not negotiating in good faith it will indicate they’re not trying to genuinely reach an agreement but the test isn’t are they negotiating in good faith, it’s are they genuinely trying to reach an agreement. So it’s not the same thing.

PN102

MS RICHARDS: Yes, look, your Honour, the company’s position as it stands is that there’s been no movement by the union or employee reps in terms of their initial log of claims. The meeting on 2 September, it wasn’t the company in agreement ceased negotiations. We’ve got a normal expiry date on 30 September that we’re actively trying to work to to have an agreement finalised. It was never our position to stop negotiations. There was no discussion.

PN103

Our position is there was no discussion at that meeting about industrial action so we felt somewhat blindsided by this whilst we respect the position of the unions to do so and, moving away from negotiations on 2 September and I appreciate it’s contested where the union said they wouldn’t come back to the table unless there was a better offer made by the company, we feel it puts us in a difficult position to progress negotiations, so how can we achieve - - -

PN104

THE DEPUTY PRESIDENT: Well, I don’t know but the evidence seems to be they’re not refusing to come back to the table. They’re saying, “We’ll meet with you whenever you organise a meeting.”

**** PAUL MICHAEL CAMERON XXN MS RICHARDS
PN105

MS RICHARDS: And Mr Friel, in his witness statement, and I’m sure in his witness evidence will indicate that the unions said they’d only come back if there was a genuine and better offer put forward so we may be mistaken but, for us, that seems to conflict with genuinely trying to reach agreement.

PN106

THE DEPUTY PRESIDENT: Well, they’re saying they haven’t had an offer.

PN107

MS RICHARDS: Which we will openly contest that - - -

PN108

THE DEPUTY PRESIDENT: All right, well, we’d better call your evidence instead of having a hypothetical.

PN109

MS RICHARDS: Thank you. Mr Colm Friel.

<COLM FRIEL, AFFIRMED [1.39.23]
<EXAMINATION-IN-CHIEF BY MS RICHARDS [1.39.58]

PN110

MS RICHARDS: Mr Colm, have you given a statement in this matter?---Yes, I have.

PN111

Is it two pages in length and 18 paragraphs?---Two pages and 18 points, yes.

PN112

Is that a true and accurate account of your position?---Yes.

PN113

Thank you. Colm, I’m going to ask a series of questions now in relation to the negotiations and perhaps some of the comments that you made in your witness statement. I’d like to start with, with respect to the bargaining meeting on 2 September 2013, did the management representatives initiate the cessation to the negotiations?---No, we didn’t.

PN114
**** COLM FRIEL XN MS RICHARDS

Did you seek to put mechanisms in place to continue negotiations through the drafting of the proposed agreement?---Yes, we were to still continue to pull the agreement together, which was a previous point that we’d already discussed.

PN115

At any time on that meeting of 2 September did either the employee representatives or the union representatives indicate that they were going to initiate steps to engage in industrial action?---No, as I - no, there was no indication that anyone was pulling away from the negotiations.

PN116

THE DEPUTY PRESIDENT: Sorry, can you just repeat that, Mr Friel?---Yes, no-one pulled out of the negotiations - - -

PN117

MS RICHARDS: Sorry, can I just clarify that, Col. Who initiated the impasse in negotiations?---So what transpired was we had been through a number of the points and the organiser at the time then said that there was no real call for further meetings until we have something meaningful to bring back to the table.

PN118

At any stage, either leading up to 2 September or beforehand, did the company put forward a wage proposal to the employee and union representatives?---Yes, we put forward a wage proposal.

PN119

Was that in one meeting or multiple meetings?---There was more than one meeting, yes, in terms of putting forward the position on a number of items of which that was one.

PN120

In that last meeting on 2 September do you recall what the employee and union representatives’ wage position was?---My recollection, on the 2^nd it wasn’t discussed specifically. The week preceding, I believe it was 6 per cent for each of the three years.

PN121
**** COLM FRIEL XN MS RICHARDS

So over the course of the negotiations to date, from the initial log of claims presented from the employee and union representatives, has there been any departure in their position?---Well, to the extent that the 6 per cent wasn’t - really the only thing that we can meet - no, there hasn’t been.

PN122

So in relation to their other log of claims items has there been any significant departure that you can recall?---No, other than one in reversal in annual leave.

PN123

Could you clarify that?---Well, originally the log was that people could, you know, I guess, pay up to the limit as per the employment standards if they wanted annual leave paid out and then they defaulted back to the point as it is in the current agreement.

PN124

Where there’s some sort of cap on cashing out?---Yes.

PN125

Okay, thank you. Your Honour, they’re the only questions I have for Mr Friel.

PN126

THE DEPUTY PRESIDENT: Okay. Mr Friel, can I just clarify, you said that there was no indication that anyone was pulling away from the negotiations. Was that my understanding of what you said?---Yes, so the statement at the time was that there was no further need for us to communicate or to meet again unless we had something significant to offer or something meaningful I think was the word, Deputy President.

PN127

Well, you were going to create a document, weren’t you?---Yes, one of the - I guess one of the things that we had mentioned there from the get-go was that we would be putting the new agreement into an existing company pamphlet, if you like, just for the purposes of standardisation so the task was with us already at that stage to pull everything into a document and it was our intention then to pull that together and go back just to make sure that, what was in there, was consistent with what we had discussed both in terms of what we had agreed and what we hadn’t agreed.

**** COLM FRIEL XN MS RICHARDS
PN128

Okay. Have you done that?---Yes, I mean, there’s a couple of finishing touches that we have to do this afternoon just around some, you know, formatting more than anything else, but yes.

PN129

So that document is just about ready to go. Have you tried to organise another meeting?---Yes, we’ve proposed another meeting on Thursday.

PN130

And has that proposal been rejected?---No, I’ve just received an acceptance from the ETU organiser who’s - - -

PN131

Right?---- - - not to come in off his annual leave so - - -

PN132

So there’s a meeting on the 16th?---Yes, in our Townsville offices.

PN133

So on the 19th?---Sorry, Thursday the 19^th.

PN134

Thursday the 19^th, all right, okay. Anything arising from that from the company? Did you have anything you wanted to ask arising from my questions?

PN135

MS RICHARDS: No.

PN136

THE DEPUTY PRESIDENT: Okay, thanks. Ms Butler, cross-examination.

PN137

MS BUTLER: Apologies, your Honour, I think your questions might obviate the need for my cross-examination. If I could just have a moment.

PN138

THE DEPUTY PRESIDENT: Surely you’re not suggesting I’d be cross-examining a witness, Ms Butler?

PN139
**** COLM FRIEL XN MS RICHARDS

MS BUTLER: Apologies, your Honour, I think I no longer require the witness to be cross-examined, thank you.

PN140

THE DEPUTY PRESIDENT: Okay, thanks. Ms Traill, do you have anything?

PN141

MS TRAILL: No, your Honour, I have nothing further.

PN142

THE DEPUTY PRESIDENT: Okay. You don’t have anything arising from my questions?

PN143

MS RICHARDS: Your Honour, if I understood the gist of your questioning it was around the parties coming back together, there being a process or a mechanism in place for the parties to come back together.

PN144

THE DEPUTY PRESIDENT: Yes.

PN145

MS RICHARDS: So my questioning is not for Mr Friel.

PN146

THE DEPUTY PRESIDENT: Okay. Well, he’s answered my questions. The company is still pulling together the document that it said it was going to pull together. I assume it’s going to send it out to the union. There’s another date scheduled to meet and no-one is refusing to come, as I understand it, from the union side. That’s the gist of it.

PN147

MS RICHARDS: Yes, that was new information for me that we’ve received an acceptance. Perhaps if I just revisit one point with Mr Friel, if that’s okay, your Honour.

PN148

THE DEPUTY PRESIDENT: Yes, sure.

PN149
**** COLM FRIEL XN MS RICHARDS

MS RICHARDS: Mr Friel, can I just take you back to that last conversation on 2 September. What was your understanding of the conditions on which the parties would come back to the table to negotiate?---We’d come back to the table at the point that the company had something more meaningful to bring to the table, so that was the statement that was made to us. My interpretation of what that meant was probably more money among other things or a better offer but fundamentally from our point of view the wording of the agreement was very important because there’d been lots of discussion around each of those points to date.

PN150

So thank you, Mr Colm, if I understand what you’re saying it was coming back with a more meaningful offer?---That’s correct.

PN151

Thank you. I have nothing further, your Honour.

PN152

THE DEPUTY PRESIDENT: Thanks for giving your evidence, Mr Friel, you’re excused.

<THE WITNESS WITHDREW [1.48PM]

PN153

THE DEPUTY PRESIDENT: Do you have any further witnesses?

PN154

MS RICHARDS: No, I don’t, your Honour.

PN155

THE DEPUTY PRESIDENT: All right, are you ready to make your submissions? Do you want a few minutes or are you ready to go?

PN156

MS BUTLER: No, thank you, your Honour. It is only submitted the AMWU maintains that a protected action ballot order must be issued in accordance with section 443 of the Act. I could perhaps briefly take you through the statutory criteria which must be met in accordance with section 437 of the Act. In relation to 437(1) the AMWU is a bargaining representative of employees who are covered by the proposed agreement. Subsection (2) does not apply. The matters specified in the application, in the AMWU’s application, that a group or groups of employees are to be balloted are set out and the questions to be put to employees are set out in the application. They are standard questions and they relate to the specifics of the kind of action that employees are to be balloted in relation to.

PN157

The AMWU has nominated the Australian Electoral Commission to conduct the ballot. The AMWU served a copy of its application at the same time it filed its application by email on Thursday afternoon. In relation to the documents which accompany the application, the application is where the company (indistinct) and the AMWU relies on the statement of Mr Rick Finch and a draft order in the terms that it seeks.

PN158

In relation to the criteria set out in section 443, Fair Work Australia now the Fair Work Commission must make a protected action ballot order in relation to a proposed agreement if (a) an application has been made in accordance with section 437, and we say that that statutory criteria has been out, and (b) and most importantly in this matter, that the commission is satisfied that each applicant has been and is genuinely trying to reach agreement with the employer or the employees who are to be balloted. It’s the AMWU’s submission that on the evidence before you, your Honour, the AMWU is genuinely trying to reach agreement and we rely on the statement of Rick Finch in support of that.

PN159

Specifically the AMWU has made concessions to its log of claims in relation to the wording of the agreement. The AMWU is waiting to see a copy of the proposed agreement (indistinct) is ready, willing and able to participate in that matter in accordance with the good faith bargaining obligations and we say that we are genuinely trying to reach agreement with the respondent. If I can’t be of further assistance, your Honour, those are my submissions.

PN160

THE DEPUTY PRESIDENT: Thank you. Ms Traill.

PN161

MS TRAILL: Thank you, your Honour. In light of the current application the CEPU concurs effectively with the statements made by Ms Butler from the AMWU. We too are genuinely trying to reach agreement and remain willing and able to do so. We rely on the statements of our delegate from the workplace, Mr Paul Cameron, and the further advice that he gave in relation to being ready and prepared to attend the meeting scheduled for the 19^th.

PN162

As Ms Butler has stated, we’ve complied with all the terms required. We believe we’ve complied at all times with the terms required to be granted a protected action ballot for this particular work site and we rely on our application and our evidence provided to you.

PN163

THE DEPUTY PRESIDENT: Thank you.

PN164

MS RICHARDS: Your Honour, it’s the respondent’s position that the ETU and AMWU have failed to bargain in good faith and genuinely trying to reach agreement in accordance with the test of section 443(1)(b). It’s our position that they’ve failed to give genuine consideration of offers made by the company and to communicate those positions and it’s also our position that the union representatives made very clear that they had no intention of coming back to the table unless there was a significant variation in the terms and conditions presented. For us we believe that constitutes failing to attend or participate in meetings.

PN165

We had no faith that they would return on the 19^th. We are very pleased that there is at least one acceptance, that that will happen, but this was prepared before that acceptance came in. So, Deputy President, as I said, it’s our position that we don’t believe that there has been genuineness in the bargaining to date and we’re genuinely keen to get this agreement finalised. If it pleases the commission, they’re our submissions.

PN166

THE DEPUTY PRESIDENT: All right, thank you. Anything in reply?

PN167

MS BUTLER: No, thank you, your Honour.

PN168

MS TRAILL: No, your Honour.

PN169

THE DEPUTY PRESIDENT: All right, well, I’ll stand the matter down for half an hour and I’ll be in a position to deliver a decision. Thank you.

<SHORT ADJOURNMENT [1.54PM]
<RESUMED [2.40PM]

PN170

THE DEPUTY PRESIDENT: I’m in a position now where as I indicated I can provide a decision at this point. The AMWU and the CEPU apply under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Incitec Pivot Pty Ltd working at Phosphate Hill. It is not in dispute that all of the requirements under sections 437 and 438 of the Act have been met. Incitec opposes the making of the order on the ground that the AMWU and the CEPU have not been genuinely trying to reach an agreement. A hearing for the purposes of determining whether the order should be made was conducted on 16 September 2013.

PN171

Evidence in support of the applications was called from Mr Richard Finch, a state organiser with the AMWU, and Mr Paul Cameron, a delegate of the CEPU employed by Incitec. Evidence in opposition to the applications was called from Mr Colm Friel, the gas fertiliser plant manager at the company’s Phosphate Hill site. I have considered the evidence and the submissions. The evidence establishes that there have been some 13 bargaining sessions at which the parties have met for the purposes of negotiating an agreement. A block of negotiations was scheduled for the period from 2 to 5 September 2013.

PN172

On 2 September Mr Friel says that management representatives were informed by the employee and union representatives that negotiations had reached an impasse and that they would only return to the bargaining table if the company significantly shifted its position. Mr Friel also states that at the time the negotiations ceased the employee and union representatives established that they were prepared to come back to the bargaining table and that they were bargaining in good faith.

PN173

It was also agreed, according to Mr Friel, that management representatives would develop a draft agreement document and that management would reconvene the parties to review that document. A meeting was requested by management representatives for 19 September 2013. In his oral evidence Mr Friel said that there has been no indication that anyone is pulling away from negotiations. There was correspondence in evidence between the company and the AMWU on 13 September in which the company invited the union to a meeting on 19 September and indicated that, if the union did not make a representative available, the company would seek the assistance of the commission.

PN174

The AMWU responded to the correspondence refuting the assertion that the AMWU had determined that negotiations would cease unless the company had a significantly better offer to present and the AMWU stated that the parties were very far apart in relation to the wage increase the parties had planned to negotiate that week but both parties agreed that the meetings would be cancelled so that the parties could revisit their position.

PN175

The AMWU indicated to you at that meeting that it intended on filing an application for a protected action ballot order in the Fair Work Commission.

PN176

The letter goes on to state that:

PN177

At no stage has the AMWU refused to attend or participate in meetings. In fact, Incitec Pivot Ltd has proposed that a meeting take place on 19 September 2013 in circumstances where it is aware that Mr Finch is unavailable. Notwithstanding the inconvenience and the short notice the AMWU is nevertheless prepared to participate in that meeting on 19 September 2013.

PN178

The CEPU has also indicated that its representative will be available to meet with the company on that date. Both unions have now confirmed that they will attend the meeting. Mr Finch and Mr Cameron listed a number of outstanding issues in the negotiations and maintained that the unions are genuinely trying to reach agreement and had been negotiating in good faith. The evidence of both of those witnesses is indicative that there may have been some discussion that negotiations had reached an impasse and that there’s not much point in continuing them but, in my view, that does not constitute a refusal a participate in negotiations and the proposition that there has been such a refusal is contrary to the evidence that’s before me.

PN179

The words “genuinely trying” as they appear in section 443 of the Fair Work Act are to be given their ordinary meaning. The fact that an agreement has not been reached or that parties have adopted a particular negotiating position does not equate with a finding that they are not genuinely trying to read agreement. By virtue of section 443 of the Act the commission must make a protected action ballot order where the application has been made under section 437 and the commission is satisfied that the parties are genuinely trying to reach an agreement.

PN180

It has been held that a ground for refusal is where an application has been made prematurely or where parties have failed to articulate their positions or have only put their outlines of positions and have not provided responses to demands made by the other side before making the application for a protected action ballot order. On the evidence before me this is not such a case and I am unable to accept that it has been established that the parties are not genuinely trying to reach agreement. The unions have put their claims and the company has responded. The fact that an impasse has been reached does not mean that the parties are not genuinely trying to reach agreement.

PN181

The fact that the union representatives in the negotiation may have stated that they did not believe there was much purpose in negotiating further until the company changed its position does not constitute a basis for finding that they’re not genuinely trying to reach agreement, particularly in circumstances where they are awaiting a further document from the company and have not refused to attend meetings for the purposes of continuing to negotiate. The fact that negotiations are difficult and that parties are maintaining a position in circumstances where they have clearly articulated that position is not a basis for refusing to make a protected action ballot order. It should also be noted that a refusal to agree to a proposal made by another party in negotiations does not amount to a failure to bargain in good faith. Such a refusal certainly does not equate to a party not genuinely trying to reach an agreement.

PN182

In short, there is no basis upon which I could refuse to make the orders sought in the applications and I am required by virtue of section 443 of the Fair Work Act to make those orders. Accordingly, I have decided to grant the applications in both cases and orders to that effect will issue. I’ll adjourn.

<ADJOURNED INDEFINITELY [2.48PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

RICHARD FINCH, AFFIRMED PN19
EXAMINATION-IN-CHIEF BY MS BUTLER PN19
EXHIBIT #1 STATEMENT OF RICK FINCH PN27
EXHIBIT #2 LETTER DATED FRIDAY, 13/9/13 PN30
EXHIBIT #3 RESPONSE FROM MR WEBB DATED 13/9/13 PN30
CROSS-EXAMINATION BY MS RICHARDS PN38
THE WITNESS WITHDREW PN71
PAUL MICHAEL CAMERON, AFFIRMED PN71
EXAMINATION-IN-CHIEF BY MS TRAILL PN71
EXHIBIT #4 STATEMENT OF PAUL CAMERON PN78
CROSS-EXAMINATION BY MS RICHARDS PN86
COLM FRIEL, AFFIRMED PN110
EXAMINATION-IN-CHIEF BY MS RICHARDS PN110