B2014/1034, Transcript of Proceedings [2014] FWCTrans 530 (16 September 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050558-1

COMMISSIONER LEWIN

B2014/1034

s.236 - Application for a majority support determination

Construction, Forestry, Mining and Energy Union-Construction and General Division
and
The Trustee for LCR Mining Group Trust T/A LCR Mining Group Pty Ltd
(B2014/1034)





Brisbane

10.31AM, TUESDAY, 26 AUGUST 2014

PN1

THE COMMISSIONER: Good morning. I will take the appearances, please?

PN2

MR C. NEWMAN: Thank you very much, Commissioner. If it pleases, my name is Newman, initial C. Legal officer with the CFMEU. I appear today with MR DRAYTON who is the vice president of the CFMEU’s northern district.

PN3

THE COMMISSIONER: Thank you, Mr Newman.

PN4

MS C. ROBBINS: Thank you, Commissioner Lewin. Robbins, initial C, from Herbert Smith Freehills. Seeking leave to appear on behalf of the respondent in these proceedings. With me this morning are MR PETER KOSCHEL, general manager business development, and MS CANDICE MCDERMOTT, human resources manager. Both from LCR Mining Group Pty Ltd.

PN5

THE COMMISSIONER: Thank you, Ms Robbins. You’re seeking permission on the grounds of complexity and efficiency, I take it?

PN6

MS ROBBINS: Yes. That’s correct.

PN7

THE COMMISSIONER: Particularly having regard to the fact that there’s a submission about the (indistinct) instruction of the statute in the relevant circumstances.

PN8

MS ROBBINS: Yes. And also taking into account fairness between the parties. My instructors have never appeared before in front of the Fair Work Commission.

PN9

THE COMMISSIONER: Yes. So that’s not so much fairness between the parties. If you read the relevant section it’s more about the capacity of your clients - - -

PN10

MS ROBBINS: To represent (indistinct)

PN11

THE COMMISSIONER: - - - to represent themselves. Yes.

PN12

MS ROBBINS: Yes. That’s correct. Under - - -

PN13

THE COMMISSIONER: Yes.

PN14

MS ROBBINS: - - - one of the other limbs in section 596.

PN15

THE COMMISSIONER: All right. What do you say, Mr Newman?

PN16

MR NEWMAN: I have no objections, Commissioner.

PN17

THE COMMISSIONER: Very well. It seems to me that there is some potential complexity of a legal nature which arises on the basis of submissions that have been filed by the respondent which go to the proper construction of the relevant provisions of the Act. In relation to the interaction between the majority support determination provisions of the Act and the scope order provisions of the Act this matter will (indistinct) have to be dealt with by the commission. And I think it can be dealt with more efficiently if permission is granted for the respondent to be represented by a lawyer. I also take into account that having regard to those submissions and those issues it’s probably not possible for the respondent to be capable of representing itself in relation to those matters. So accordingly permission is granted to the respondent to be represented by a lawyer.

PN18

MS ROBBINS: Thank you, your Honour.

PN19

THE COMMISSIONER: Yes. Now, Ms Robbins, do you characterise the submission about the scope order as a jurisdictional objection?

PN20

MS ROBBINS: Your Honour, it’s a little bit complicated. I guess it delves a little bit into determining the actual substance of the application. But what we have here today is circumstances where we say that our client has not refused to bargain and in those circumstances it may be premature to actually (indistinct)

PN21

THE COMMISSIONER: Yes. But, with all due respect, that’s not about whether or not it’s incumbent upon the applicant in this matter to be seeking a scope order rather than a majority support determination. Is it?

PN22

MS ROBBINS: No.

PN23

THE COMMISSIONER: Or is it? Because of the non-refusal you say it’s therefore appropriate to seek a scope order?

PN24

MS ROBBINS: No. I don’t think we’re at that stage yet either.

PN25

THE COMMISSIONER: No. All right. But, you see, I’m just trying to pass these issues of – you filed a submission that says in these circumstances this application is misconceived. That this application really is a proxy for what should properly be occurring and that is an application be made for a scope order, isn’t that right?

PN26

MS ROBBINS: It could be. But there (indistinct) - - -

PN27

THE COMMISSIONER: But you have filed that submission. That is your submission.

PN28

MS ROBBINS: Yes.

PN29

THE COMMISSIONER: I’m just asking you to acknowledge that at this moment.

PN30

MS ROBBINS: Okay. Yes. We did.

PN31

THE COMMISSIONER: Yes. All right. So my question – and if we can just stay with this question for the moment rather than moving off onto other matters, is do you characterise that submission as a jurisdictional objection?

PN32

MS ROBBINS: Construed in that way it could be but it may be more - - -

PN33

THE COMMISSIONER: Well, I think you need to actually say it is or it isn’t. Because if you say it’s a jurisdictional objection I have a duty to inquire into my jurisdiction and to determine the question.

PN34

MS ROBBINS: If I could seek a moment to - - -

PN35

THE COMMISSIONER: Yes.

PN36

MS ROBBINS: - - - confer with my client to seek instructions?

PN37

THE COMMISSIONER: Yes. Very well.

PN38

MS ROBBINS: Thank you, your Honour. Thank you, your Honour. Just confirmed with my client. We don’t proceed on the basis that there’s a jurisdictional objection on the basis that there should be a scope order application (indistinct)

PN39

THE COMMISSIONER: All right. Thank you. All right. That also affects the order of the proceedings. Had you been making a jurisdictional objection I would have heard you first in relation to the objection. I am now going to proceed on the basis that there is no jurisdictional objection at all.

PN40

MS ROBBINS: Yes, your Honour. Taking that into account I would also like to refer, though, to my earlier email to your chambers seeking an adjournment of determining this matter in its substantive entirety - - -

PN41

THE COMMISSIONER: All right.

PN42

MS ROBBINS: - - - on the basis that our client was only served with the applicant’s evidence in relation to this matter late yesterday afternoon.

PN43

THE COMMISSIONER: All right. I will just come to that. There’s something I want to dispose of. Something that I had in mind when Mr Newman announced his appearance, that I failed to give voice to at that time. Which is that Mr Drayton is a likely witness in this matter.

PN44

MR NEWMAN: He is. I (indistinct) - - -

PN45

THE COMMISSIONER: No. I’m not going to record an appearance for him in those circumstances.

PN46

MR NEWMAN: Yes. I did flag that as a possible concern that – yes.

PN47

THE COMMISSIONER: Yes.

PN48

MR NEWMAN: So I agree (indistinct) - - -

PN49

THE COMMISSIONER: So Mr Drayton is not going to be recorded as appearing in the matter. If he gives evidence in the matter he’ll be a witness. And, of course, that means that I won’t be hearing from him other than from the witness box. All right. Now, you are applying for an adjournment because you only received the information recently.

PN50

MS ROBBINS: Yes, your Honour. The application itself was filed by the Union on 11 August and it took them some two weeks to file any evidence in support of that application. And in those circumstances we say that our client hasn’t had adequate time to consider the evidence which has been filed and to consider - - -

PN51

THE COMMISSIONER: All right.

PN52

MS ROBBINS: - - - how it wishes to proceed. And it may actually be that this hearing isn’t necessary if our client is given further time to consider the material that has been filed.

PN53

THE COMMISSIONER: All right. You’re talking in particular about the witness statement of Mr Drayton.

PN54

MS ROBBINS: Yes. And also the alleged petition that has been signed by the 41 employees.

PN55

THE COMMISSIONER: All right.

PN56

MS ROBBINS: But I understand the concerns would have been raised in the - - -

PN57

THE COMMISSIONER: I don’t know that that petition has actually been – the actual petition has been entered (indistinct)

PN58

MR NEWMAN: No (indistinct) a copy - - -

PN59

THE COMMISSIONER: Your copy of the form of the petition has been filed.

PN60

MR NEWMAN: A copy of the form with – well, it’s a copy of the petition - - -

PN61

THE COMMISSIONER: Well, it doesn’t identify the - - -

PN62

MR NEWMAN: It doesn’t identify – yes. Who - - -

PN63

THE COMMISSIONER: The petitioners. Yes.

PN64

MR NEWMAN: Yes. The process that we would be seeking - - -

PN65

THE COMMISSIONER: Yes.

PN66

MR NEWMAN: - - - if, indeed, the objection of the application was to proceed would be to request that we file a (indistinct) copy of the petition with the commission on a confidential basis.

PN67

THE COMMISSIONER: Yes.

PN68

MR NEWMAN: And that the respondent supply a list of names of employees that would be covered by the agreement.

PN69

THE COMMISSIONER: Covered by the agreement. Yes. Look, I anticipated that.

PN70

MR NEWMAN: And in order for the commission (indistinct) yes. That would be our course.

PN71

THE COMMISSIONER: Yes. As I say, I anticipated that. I just wanted to verify the fact - - -

PN72

MR NEWMAN: Yes. That that – you are correct.

PN73

THE COMMISSIONER: Obviously I’m sitting in Brisbane. My chambers are in Melbourne. I want to make absolutely certain there’s nothing missing from the file. I read Mr Drayton’s statement. Is there anything in it that your client contests as a matter of fact?

PN74

MS ROBBINS: Nothing that goes to the substance of the application itself that (indistinct) - - -

PN75

THE COMMISSIONER: Right. So would you wish to cross-examine Mr Drayton?

PN76

MS ROBBINS: We may require a brief adjournment to allow time to prepare for that.

PN77

THE COMMISSIONER: Yes.

PN78

MS ROBBINS: Just given that we’ve only had (indistinct) material this morning.

PN79

THE COMMISSIONER: When did you receive this material?

PN80

MS ROBBINS: It was at 5.34 pm yesterday evening that it was received by my client - - -

PN81

THE COMMISSIONER: Right.

PN82

MS ROBBINS: - - - and was forwarded to us later that evening.

PN83

THE COMMISSIONER: When was it forwarded to you?

PN84

MS ROBBINS: I didn’t receive a copy until just before 9 pm last night.

PN85

THE COMMISSIONER: Last night.

PN86

MS ROBBINS: Yes.

PN87

THE COMMISSIONER: That’s the life of a lawyer you’ve chosen.

PN88

MS ROBBINS: I understand that, Commissioner. But it was more – obviously I’ve had a chance to read it but I haven’t had a chance to take instructions from my client.

PN89

THE COMMISSIONER: Yes. Look, I’m not going to make any decision on your application for an adjournment instantly but when I read the affidavit a lot of it looks – it looks unlikely to be in dispute on any factual basis. And I think it’s a rather limited statement in terms of fact. In particular it seems to be very limited in terms of relevant facts, having regard to the limited conditions precedent to the making of what would be a mandatory order in certain circumstances. You appreciate that the relevant statutory provisions mandate the order. It’s not – provided that I was satisfied that it was reasonable in all the circumstances to make it if the other conditions precedent were satisfied.

PN90

So I’m just wondering whether or not it might be better for me to allow you a little more time this morning just to consider whether you – and Mr Drayton is here. He’s available for cross-examination. And, after you’ve had a chance to review it with your instructors, to advise me as to why you couldn’t proceed to cross-examine Mr Drayton now. That would be, I think, a relevant consideration in all the circumstances. If this had been a complex affidavit with, you know, a catalogue of potentially contested facts there might be a different situation. When I read it I didn’t see it had a very broad compass and the issues to be determined by the commission are quite narrow, I would have thought.

PN91

MS ROBBINS: Yes, your Honour. I guess the point that we’re trying to make, though, is that until we received this material we didn’t have any evidence of what the Union was relying on. And also it’s just more that we needed the time to make any submissions that we need to in relation to the legislative prerequisites that need to be met under section 237 for the commission to be satisfied - - -

PN92

THE COMMISSIONER: Well, making submissions is another question all together and I don’t think (indistinct) any real reason why you have to make them today. Mr Newman, I think the submissions could be conveniently filed in writing after Ms Robbins has had a little more time to respond to what you’ve put on.

PN93

MR NEWMAN: I wouldn’t have any objections, per se, to that and (indistinct) on how - - -

PN94

THE COMMISSIONER: All right. Yes.

PN95

MR NEWMAN: - - - (indistinct) the issues become under cross-examination.

PN96

THE COMMISSIONER: Well, you’re just going to call Mr Drayton, aren’t you?

PN97

MR NEWMAN: Yes.

PN98

THE COMMISSIONER: All right. Look, what say I give you an hour to take some instructions? And if your instructor needs confirmation of that I will ask my associate to look in on you in about 30 minutes time. If you wish to proceed at that point just let us know. If you need the whole hour take that time. Just advise us to whether or not there’s any serious impediment to cross-examining Mr Drayton today. He’s here. His statement is before you. Just let me know and I’ll consider your application further at that time. All right?

PN99

MS ROBBINS: Yes.

PN100

THE COMMISSIONER: So I’m going to now formally adjourn until 11.40. But in the meantime my associate will look in on you in particular, Ms Robbins, to see what the state of affairs is. If you choose that, you know, it’s better to get on with it, well, then we’ll accommodate you. All right? Good. Thank you.

<SHORT ADJOURNMENT [10.45AM]
<RESUMED [11.33AM]

PN101

THE COMMISSIONER: Yes. Ms Robbins?

PN102

MS ROBBINS: Yes. In these circumstances our client would like to cross-examine Mr Drayton once he has given his evidence.

PN103

THE COMMISSIONER: You would like to?

PN104

MS ROBBINS: Yes.

PN105

THE COMMISSIONER: And you’re ready to now?

PN106

MS ROBBINS: Yes. We can do so.

PN107

THE COMMISSIONER: Good. All right. You can call Mr Drayton.

PN108

MR NEWMAN: Yes. I call Mr Drayton. I’ve just left him outside.

PN109

THE COMMISSIONER: Yes. Very well.

PN110

MR NEWMAN: Just for the purpose of, you know, I understand he’s giving evidence.

PN111

THE COMMISSIONER: Yes. My associate will call the witness.

PN112

MR NEWMAN: Thank you.

PN113

THE COMMISSIONER: Mr Drayton, please, go over there – and you might have done this before. Stand in that witness box for a moment and give either the oath or the affirmation, as you prefer.

<JEFFREY MARK DRAYTON, SWORN [11.35AM]

PN114

THE COMMISSIONER: Thank you, Mr Drayton. Please be seated. Yes. Mr Newman?

<EXAMINATION-IN-CHIEF BY MR NEWMAN [11.35AM]

PN115

MR NEWMAN: Thank you very much, Commissioner.

PN116

Can you please state your name and address for the commission?---Jeffrey Mark Drayton (address supplied).

PN117

Thank you very much, Mr Drayton. Have you prepared a statement in this matter?---I have.

PN118

Is that statement 34 paragraphs and eight pages long and dated 25/8/2014?---Yes, it is.

PN119

Is there anything you wish to change or add to your statement?---Just a point of clarification moreso than add. In reference to paragraph 32 where I speak about negotiating an agreement which covers people or members working on the mine in Boggabri - - -

PN120

(indistinct) - - -?---(indistinct) mining on the Boggabri open cut coal mining lease. I refer back to paragraphs 7 and 8 - - -

PN121

THE COMMISSIONER: As well as nine?---7, 8 as well as 9.

PN122

Right?---In reference to the types of people we wish to be covered by the agreement. Those people are integrated both on and off the lease.

PN123

Right?---(indistinct) work on both those areas and they’re integrated into that – the whole system.

**** JEFFREY MARK DRAYTON XN MR NEWMAN
PN124

All right. I understand that. Now, I just want you to look at paragraph 32, please? And I want you to look at the last sentence. And what I’m hearing you say is you want to amend your statement so as to include, after the word “paragraph” (indistinct) put an “s 7, 8 and 9 of this statement”?---That’s correct.

PN125

All right. Is there any objection to that amendment? Very well. The statement is amended accordingly. Thank you.

PN126

MR NEWMAN: Thank you very much. No further questions.

PN127

THE COMMISSIONER: Good. Thank you. That’s exhibit A1, unless there’s any objection to the other content?

PN128

MS ROBBINS: No objection.

PN129

THE COMMISSIONER: None? Good. Exhibit A1.

EXHIBIT #A1 WITNESS STATEMENT OF JEFFREY MARK DRAYTON DATED 25/08/2014

PN130

THE COMMISSIONER: Go ahead, Ms Robbins.

<CROSS-EXAMINATION BY MS ROBBINS [11.37AM]

PN131

MS ROBBINS: Thank you, Commissioner.

PN132

Morning, Mr Drayton. I just have a few questions for you. If I could take you to paragraphs 19 and 20 of your statement?---Yes.

PN133
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

In those paragraphs you refer to a number of meetings with employees and that there’s a strong support amongst the CFMEU members for the Union to negotiate and agreement with LCR Mining on those employees’ behalf?---Yes.

PN134

I understand that, both from your statement and from my instructions, that my client employed a number of employees who would not necessarily be eligible for coverage by the Union, including mechanics and electricians, and their industrial interests might be more appropriately represented by the trade unions. My question, sorry, going back to paragraph 19 of your statement, is how did you know that those people who attended the meeting and who apparently indicated their support for the Union were actually entitled to be covered by the Union?---I spoke – I’ve spoken to all of those people. The meetings we have – when I say “four meetings” that equates to 16 meetings. To clarify that point, sorry - - -

PN135

Across the four (indistinct) ?---That’s four meetings with - - -

PN136

THE COMMISSIONER: Four?---The members on each of the four shifts. So I would go up there for two days. I would call that one meeting but, in fact, it’s four meetings over - - -

PN137

MS ROBBINS: Over the (indistinct) - - -?---So there’s a not a lot of people at each of those meetings. So they’re fairly intimate type – but we have – I represent members at every one of the pits I do, that include all tradesmen. That include mechanical, electrical, boilermakers. All the tradesmen that work on site are all covered by the CFMEU on every site that I - - -

PN138

So - - -?---Actually, I – we have - - -

PN139

- - - they’re members. But are they eligible under your rules?---Absolutely.

PN140
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

And going to paragraph 20 - this petition that was signed by the 40 odd people. What explanation was given to them when they were asked to sign? Like, how was it explained to employees what the purpose of that petition was?---I explained – I signed some of those members. Not all of those members. We had another CFMEU employee sign some of them purely because I live - - -

PN141

Sorry, when you say “sign” do you sign on their behalf or do (indistinct) sign (indistinct) ?---No. They sign – no. They sign. But he actually handed them the paper.

PN142

Right?---But I had spoken to those members and told them what we needed to do. There had been an indication, now, for a long long time that people wanted an enterprise agreement. There has been issues with LCR – and I wouldn’t say there has been lots of issues but there’s been – consistently been issues over time. And the way that members seem to fix those issues was to have an enterprise agreement that they could negotiate to cover them. And I had spoken to those members at the meeting to say “Well, listen, it’s – I’m not sure whether LCR would be prepared to negotiate. The way to do it – the way to make sure is to make sure we have a majority.” And over time we’ve had – we’ve managed to get that majority and continued to hold meetings at the club, as we continue to hold them now.

PN143

And so are those four occasions, two days of each time – when did those meetings take place? Do you remember the dates?---No, I haven’t got the dates. I could supply the dates. I haven’t got them. What I try and do is integrate, purely because of the – I mean, Boggabri is three hours drive from where I live. It’s about four and a half hours drive from my office but about three from where I live. I try to integrate them with Downer EDI meetings. So when I drive up there I do – I might be up there for two or three days total and have the meetings with both the Downer employees and the LCR members as well.

**** JEFFREY MARK DRAYTON XXN MS ROBBINS
PN144

So is there a chance that there could have been Downer employees at the meetings (indistinct) - - -?---No. They were LCR – the meetings are held at different times. LCR have different starting and finishing times. There’s about an hour difference in a lot of those. We would start the meetings early before people started dog watch that night. So the times – no. No. They all had LCR shirts and (indistinct) all have – I mean, some pretty in-depth conversation. As I say, the meetings contained – a lot of the time contain, you know, six or eight people in each of the meetings, purely because they’re split up over four different crews.

PN145

I know you don’t have the exact dates to hand but the petition, when would it have last been signed by LCR employees?---The petition – the most recent signatures would have only been back on the weekend.

PN146

The weekend just been?---The weekend just gone. Yes. About the twenty third or fourth.

PN147

(indistinct) ?---With the last couple. You will see the dates on a lot of those – well (indistinct) see the dates on a lot of those. They were started to get signed right back at the commencement when I first started sending an email to Ms McDermott.

PN148

So prior to the Union’s application being filed on 11 August how many employees, or approximately, would have signed the petition at that point?---I’m not sure. I’m not sure. The numbers – we’ve only had a couple more recently but most of the names had been done previously. A while ago.

PN149

Before the application was filed?---Yes, it would have been before. Some would have been before, yes. Yes.

PN150
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

But you couldn’t say for sure whether it was the majority or - - -?---No, I couldn’t say exactly how many. No. Purely because I didn’t do – I wasn’t the one - - -

PN151

Who collected all the signatures?---That actually had the – yes.

PN152

So it is possible though, at least at the time that the application was filed, that there wasn’t actually a majority of your members who had indicated that (indistinct) ?---No. We’ve had majority for quite some time. Yes. When it was (indistinct) yes. The members I speak of recently are only – I think there was only two on the weekend. Yes. No (indistinct) the majority for quite a long (indistinct)

PN153

Okay?---I didn’t file – deliberately didn’t file the application until we were confident we had the majority.

PN154

Thank you, Mr Drayton. Turning to paragraph 24 and the annexure marked “JD2” of your statement – and that’s the email exchange that you had with Mr Schultz, whose the project manager of the respondent - - -?---Yes.

PN155

- - - on 15 July. So turn, specifically, to the email itself. You’ve requested a meeting to commence bargaining for a collective agreement (indistinct) the members based at Boggabri Coal who are employed by LCR?---Yes.

PN156

And Mr Schultz responded on the same day “Can you please advise a time that suits so we can discuss further?” But Mr Schultz didn’t hear back from you. Is there any reason why you didn’t confirm your availability to meet?---Yes, I did confirm my availability. What happened was there was a meeting that was lined up with Mr Colin McGinerty, an employee up there.

PN157

(indistinct) ?---Col had to return to work. So purely, again geographically, the easiest way for me was when I met (indistinct) the conversation between me – phone conversation between Mr Shultz and I is that we would talk about it then. And that is, in fact, what happened.

**** JEFFREY MARK DRAYTON XXN MS ROBBINS
PN158

And that was the meeting on 22 July (indistinct) - - -?---I think that was the – mister – that was the meeting on the twenty second.

PN159

(indistinct) paragraph 25 of your statement?---Yes.

PN160

I understand from your statement that you say that Mr Shultz told you he was unfamiliar with the process for negotiating and that you should email so that he can forward that on to Brisbane head office. At any point during that meeting on the twenty second did Mr Schultz refuse to bargain or say that the respondent did not agree to bargain with the CFMEU?---Mr Shultz informed me that – he just said “we were unfamiliar with enterprise agreements.” He asked me what sort of things we wanted in an enterprise agreement, to give him an indication. He also said – yes, he said – so “we were unfamiliar.” He didn’t refuse. In fact Mr Shultz said “I don’t get to make the call on this. I’ll have to forward it to head office and they’ll respond.” And then I (indistinct) I think he, from memory, in fact did mention Ms McDermott will respond – which was the fact.

PN161

And then obviously then there was further email on the twenty eighth and then the sixth?---Yes.

PN162

And then on the seventh LCR responded. But, again, there was nothing in the letter, which is marked “JD5” to your statement – there’s nothing in there to suggest that LCR had refused or had not agreed to bargain?---Sorry, I’ll just find that.

PN163

Sorry?---Yes.

PN164

Yes. Attachment JD5 to your statement?---Yes.

PN165
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

THE COMMISSIONER: I think that rather than, you know, dancing around this, if you’re going to cross-examine this witness in accordance with what you’re going to put to me you’re obliged to put it to him that LCR has agreed to bargain, aren’t you?

PN166

MS ROBBINS: Pardon, your Honour? I missed that last (indistinct)

PN167

THE COMMISSIONER: If your proposition is that the conditions precedent to the making of the order sought are not met because LCR has agreed to bargain you will have to put this to the witness, won’t you?

PN168

MS ROBBINS: Yes, your Honour.

PN169

THE COMMISSIONER: Yes. I mean, that’s the issue, isn’t it?

PN170

MS ROBBINS: Yes, it is.

PN171

THE COMMISSIONER: Yes. So will it be your case that LCR has agreed to bargain?

PN172

MS ROBBINS: It’s more, I guess (indistinct) in the opposite. That we haven’t (indistinct) - - -

PN173

THE COMMISSIONER: Yes, I know. I understand that. You know, I’ve read what you’ve put and I’ve heard what you’ve just said to the witness. But the issue for me to determine is whether or not LCR has agreed to bargain.

PN174

MS ROBBINS: As one of the prerequisites for (indistinct) whether
(indistinct) - - -

PN175
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

THE COMMISSIONER: That’s right. Well, if they have agreed to bargain, on the evidence before me, there’s no order to be made. So if that’s your case, that they have agreed to bargain, then you have to put that to this witness, don’t you?

PN176

MS ROBBINS: Mr Drayton - - -?---Yes.

PN177

- - - (indistinct) - - -

PN178

THE COMMISSIONER: If that’s your case should we bring the evidence that they have agreed to bargain, won’t you?

PN179

MS ROBBINS: Well, if you take into account the evidence that has already been filed on behalf of the applicant - - -

PN180

THE COMMISSIONER: Yes.

PN181

MS ROBBINS: - - - in the correspondence that has been exchanged between the parties we haven’t not agreed to bargain. Because we (indistinct) - - -

PN182

THE COMMISSIONER: Yes. That’s not what’s in the Act though. Look, you are putting it to me, effectively, that you have agreed.

PN183

MS ROBBINS: With (indistinct) - - -

PN184

THE COMMISSIONER: That’s the only answer, isn’t it? There’s no semantic refuge in simply not addressing the subject because – isn’t that right? That if an employer just remains silent on the subject of whether or not they agree to bargain they haven’t agreed to bargain. So are you saying that they’re silent on that subject?

PN185
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

MS ROBBINS: No. I guess, your Honour, our client’s position is that we have welcomed the opportunity to meet with the Union to discuss bargaining.

PN186

THE COMMISSIONER: Yes. Well, that falls short, though, of agreeing to bargain, doesn’t it?

PN187

MS ROBBINS: Yes.

PN188

THE COMMISSIONER: Yes. Anyway, you go ahead and question the witness. But I just remind you that I think if you – if it’s your proposition that you’ve agreed to bargain, if that’s what you’re putting to me, this witness’ evidence is to the contrary. And so you have to put your case to him.

PN189

MS ROBBINS: Mr Drayton, the evidence that’s contained in your statement seems to suggest that LCR has refused to bargain but - - -?---Yes. That’s my belief.

PN190

But there has been no refusal?---When I received – almost three weeks later I received the letter you took me to - - -

PN191

The 7 August letter?---The 7 August letter. When I first read it my immediate thoughts were that there was a refusal in there. I then did speak to the industrial officer based in my office, who had the same thoughts. And that’s in the letter where it – where I had already asked to bargain – to initiate a meeting to start bargaining from Mr Schultz. He told me he had to send it through to Brisbane. He done that and that was when the response come back that said:

PN192

We’re actually currently meeting all our employment obligations and if the CFMEU chooses to submit the application to Fair Work to commence proceedings we don’t – regarding –

PN193
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

Sorry:

PN194

to commence proceeding in regards to a bargaining for an enterprise agreement we don’t have any issues with it and will await confirmation.

PN195

I did absolutely take that that was refusing to bargain, to say that. Yes. Actually, the words I used to Mr Schultz, when I spoke to Mr Schultz, “Can we start bargaining? We have a majority. Can we start bargaining or are you going to make me jump through the hoops?” And he, again, comments, “That’s not my call. It’s head office’s call and I need to forward to head office” – and that was the response I got. So I did use from that that absolutely that’s a refusal to bargain. Yes.

PN196

Then no further contact was made with LCR (indistinct) - - -?---Yes, I did try and call Mr Schultz, yes, after that.

PN197

On 8 August?---On the eighth. And I said – I rang Mr Schultz and he was with, in fact, another employer safety inspector from our organisation, Mr Shaw – Keith Shaw. And I said, “I just want to talk to you in regards to the bargaining and the letter I got” – which is in reference to this letter – the 7 August letter. And he said, “Oh, I can’t talk now. I’ll have to talk to you later. I’m with Keith Shaw” – and that was it. That was it. I never received a call from him. He just said, “We’ll have to talk later.” And, no, I haven’t made contact purely because then – I made the decision he had no back (indistinct) the latest notice I received is 7 August (indistinct) - - -

PN198

But you haven’t actually received any kind of confirmation other than what you had inferred the 7 August matter to mean. That LCR had refused - - -?---I hadn’t received anything to say that they were, either. So - - -

PN199
**** JEFFREY MARK DRAYTON XXN MS ROBBINS

THE COMMISSIONER: Is it necessary for there to be a refusal? Is a refusal relevant?

PN200

MS ROBBINS: (indistinct) - - -

PN201

THE COMMISSIONER: There’s no statutory reference to refusal.

PN202

MS ROBBINS: But I guess it would go to support that the employer has not agreed. Because otherwise - - -

PN203

THE COMMISSIONER: Well, it might. But the point is that the statutory language doesn’t require a refusal, does it?

PN204

MS ROBBINS: (indistinct) specific – no, it does not refer to that specific wording.

PN205

THE COMMISSIONER: It requires satisfaction on the part of the tribunal that the employer has not agreed. Ie, it has not affirmed its preparedness to bargain. Isn’t that the issue?

PN206

MS ROBBINS: Yes. As opposed to - - -

PN207

THE COMMISSIONER: Refusing.

PN208

MS ROBBINS: - - - refusing.

PN209

My next question relates to paragraph 32, which has obviously just been amended in relation to the coverage of - - -?---Yes.

PN210

- - - the production and engineering employees?---Yes.

**** JEFFREY MARK DRAYTON XXN MS ROBBINS
PN211

And which then goes back to paragraphs 7, 8 and 9 and those occupations that are the occupations that those employees are engaged in?---Yes.

PN212

And you also refer to the small number of management and administration staff onsite. In paragraph 9 you refer to supervisors in the same sentence as the other (indistinct) operators and other occupations. Is it the Union’s position that supervisors would then fall - - -?---That’s purely just a shift supervisor. Not a manager, no. Just a shift supervisor.

PN213

Shift supervisor?---Yes.

PN214

I have no further questions.

PN215

THE COMMISSIONER: Thank you, Ms Robbins.

PN216

MS ROBBINS: Thank you, Commissioner.

PN217

THE COMMISSIONER: Thank you. Mr Newman?

<RE-EXAMINATION BY MR NEWMAN [11.54AM]

PN218

MR NEWMAN: Yes. Just one question. Up until today are you aware of any employee receiving a notice of employee representational rights - - -?---No.

PN219

- - - in relation to (indistinct) ?---No.

PN220

Thank you. No further questions.

PN221

THE COMMISSIONER: Do you have anything on that?

**** JEFFREY MARK DRAYTON RXN MR NEWMAN

<FURTHER CROSS-EXAMINATION BY MS ROBBINS [11.54AM]

PN222

MS ROBBINS: Mr Drayton, are you familiar with the requirements of when an employer is required to issue a notice of representational rights?---I understand it has to be issued before bargaining commences. Yes.

PN223

Before bargaining or is there a window after?---Yes. There is a window after. I’m sure of exactly the time but there is a window, I believe. Yes.

PN224

Thank you. And so just because a notice hasn’t been filed as of today doesn’t mean that bargaining has not actually – or that LCR has not agreed to bargain and could do so within the next week or so?---No. As I (indistinct) my position I believe that LCR are refusing to bargain. Yes.

PN225

THE COMMISSIONER: I re-opened that because it wasn’t raised in-chief.

PN226

MR NEWMAN: I understand.

PN227

THE COMMISSIONER: Do you want to re-examine?

PN228

MR NEWMAN: No. That’s fine. Thanks.

PN229

THE COMMISSIONER: (indistinct) good. Thank you.

PN230

Thank you for your evidence, Mr Drayton. You are released from your oath. You are free to come and go as you please. You probably should stay, I think.

<THE WITNESS WITHDREW [11.55AM]

PN231

THE COMMISSIONER: All right. Ms Robbins, what do you need? Do you want some time to file some written submissions on the evidence or are you going to call some evidence?

PN232

MS ROBBINS: Sorry, your Honour. There’s nothing that’s – actually - - -

PN233

THE COMMISSIONER: Do you need to take instructions as to whether you want to call evidence?

PN234

MS ROBBINS: Can I just take a moment to take instructions?

PN235

THE COMMISSIONER: Yes.

PN236

MS ROBBINS: Okay.

PN237

THE COMMISSIONER: I’ll come back at 12.

PN238

MS ROBBINS: Okay. Thank you.

PN239

THE COMMISSIONER: Or shortly thereafter.

<SHORT ADJOURNMENT [11.56AM]
<RESUMED [12.15PM]

PN240

MR NEWMAN: Commissioner?

PN241

THE COMMISSIONER: All right. Yes?

PN242

MR NEWMAN: Whilst we’ve had the break my friend and I have had a chance to have a discussion and she has informed me that her clients are willing to provide an undertaking to provide correspondence to the Union stating that they are agreeing to initiate bargaining and will be (indistinct) - - -

PN243

THE COMMISSIONER: You will withdraw the application when you are formally notified of that agreement, is that right?

PN244

MR NEWMAN: We will do so.

PN245

THE COMMISSIONER: All right. Thank you, Mr Newman. Is that correct, Ms Robbins?

PN246

MS ROBBINS: Yes. That is correct, Commissioner.

PN247

THE COMMISSIONER: All right. Well, thank you for confirming that. That obviously deals with this matter. I will hold onto the file. When I receive notification from the applicant that the agreement to bargain has been received I will close the file and notify you accordingly. Thank you.

PN248

MR NEWMAN: Thank you.

<ADJOURNED INDEFINITELY [12.16PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JEFFREY MARK DRAYTON, SWORN PN114
EXAMINATION-IN-CHIEF BY MR NEWMAN PN115
EXHIBIT #A1 WITNESS STATEMENT OF JEFFREY MARK DRAYTON DATED 25/08/2014 PN130
CROSS-EXAMINATION BY MS ROBBINS PN131
RE-EXAMINATION BY MR NEWMAN PN218
FURTHER CROSS-EXAMINATION BY MS ROBBINS PN222
THE WITNESS WITHDREW PN230