AG2014/6009, Transcript of Proceedings [2015] FWCTrans 101 (3 March 2015)

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s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by Aurizon Operations Limited & Aurizon Network Pty Ltd and Another

PN1.

VICE PRESIDENT WATSON: I don’t think there are any changes in appearances.

PN2.

MR REITANO: No, there aren’t, but I should apologise to the Commission for being late. It was entirely my fault and I apologise.

PN3.

VICE PRESIDENT WATSON: We hope that we don’t delay our flights – our intention to catch flights, those of us flying out tonight. But we have listed the matter at your client’s request, Mr Reitano.

PN4.

MR REITANO: Yes. I understand the Commission has laid down, I think, three things that were to be dealt with.

PN5.

VICE PRESIDENT WATSON: Yes.

PN6.

MR REITANO: So I think without further ado, I should tender the statement of Peter Allen that we forwarded to the Commission early in January. It is dated 15 January 2015.

PN7.

VICE PRESIDENT WATSON: We will mark that statement. Mr Allen is not required for cross-examination?

PN8.

MR REITANO: As I understand it, that is correct.

PN9.

VICE PRESIDENT WATSON: We will mark it exhibit R8.

EXHIBIT #R8 STATEMENT OF MR P ALLEN DATED 15/01/2015

PN10.

VICE PRESIDENT WATSON: Some evidence in reply, Mr Dixon?

PN11.

MR DIXON: May it please the Commission, we seek to rely on the witness statement of Mr Michael Francis Heenan which was dated and signed on 9 February 2015. I don’t know what my learned friend’s situation is, whether he is required for cross-examination.

PN12.

MR FRIEND: I do wish to ask Mr Heenan a few questions.

PN13.

MR DIXON: And me too.

PN14.

VICE PRESIDENT WATSON: Perhaps you can then, Mr Heenan.

PN15.

MR DIXON: Sorry, your Honour, just before I do that, I have assumed that my learned friend, Mr Friend’s clients don’t intent to call any evidence.

PN16.

MR FRIEND: At this stage, no.

PN17.

MR DIXON: Thank you. What does this stage mean? If he is going to call evidence, he should call it now. I may have to deal with it.

PN18.

MR FRIEND: We have had rebuttal evidence once in this proceeding. It may arise again but I should think not.

PN19.

MR DIXON: I call Mr Heenan, if the Commission pleases.

PN20.

VICE PRESIDENT WATSON: Mr Heenan.

<MICHAEL FRANCIS HEENAN, SWORN [3.24 PM]

<EXAMINATION-IN-CHIEF BY MR DIXON [3.24 PM]

PN21.

MR DIXON: Mr Heenan, your full names are Michael Francis Heenan and you have given evidence in these proceedings before?---Yes.

PN22.

Your position remains the same within the Aurizon company?---Yes.

PN23.

Do you have a copy of a statement with you which was signed by you and dated 9 February 2015?---Yes.

PN24.

I understand that there are two small corrections which you wish to make to that statement. The first is to paragraph 25?---Yes.

PN25.

In the first line you make reference to representatives of the RTBU and in lieu of “AFULE,” you wish to insert “ETU”?---That’s correct.

PN26.

The same correction you wish to make in paragraph 29 in the second line after the words “RTBU,” you wish to have deleted “AFULE” and insert “ETU” in lieu of that correction?---Yes, that’s correct.

**** MICHAEL FRANCIS HEENAN XN MR DIXON

PN27.

With those corrections, do you say that the contents of your statement are true and correct to the best of your knowledge and belief?---Yes, I do.

PN28.

If your Honour would mark the affidavit.

PN29.

VICE PRESIDENT WATSON: Yes. That statement dated 9 February will be exhibit D33.

EXHIBIT #D33 STATEMENT OF MR M. HEENAN DATED 15/02/2015

PN30.

MR DIXON: If the Commission pleases, that is the evidence-in-chief.

PN31.

VICE PRESIDENT WATSON: Mr Friend.

PN32.

MR FRIEND: Thank you, your Honour.

<CROSS-EXAMINATION BY MR FRIEND [3.26 PM]

PN33.

MR FRIEND: Mr Heenan, last time you were here giving evidence you gave evidence that, in your view, there was no prospect of agreement at that stage, correct?---Correct.

PN34.

You have repeated that in the statement that you have filed today?---Yes.

PN35.

That statement bears yesterday’s date but it was signed yesterday?---Yes.

PN36.

I take it you signed it and prepared it yesterday?---Yes.

PN37.

You refer in paragraphs 28 and 29 to some rather extensive meetings that have taken place?---Yes.

PN38.

That is in respect of the two streams?---The two streams, yes.

PN39.

The train crew and ops stream and the construction maintenance stream?---That’s right.

PN40.

You don’t refer anywhere to proposed meetings that are to take place, do you?
---No, I don’t.

PN41.

But there are a number of meetings proposed to take place, are there not?---There are meetings proposed to take place. We agreed a schedule in December through to the middle of March.

**** MICHAEL FRANCIS HEENAN XXN MR FRIEND

PN42.

So with the train crew stream negotiations, there are a number of two-week blocks of negotiation to occur, aren’t there?---There is two more two-week blocks.

PN43.

You have had one?---We have had two.

PN44.

Had two?---Yes.

PN45.

There is a week in between each one?---Yes.

PN46.

In those negotiations delegates are attending as well as officials from the unions?
---Delegates have attended from both unions. The AFULE have had an official there. The RTBU haven’t always had an official there.

PN47.

It is, what, four or five delegates from each union?---I think it is four delegates from the RTBU and four or five from the AFULE.

PN48.

They are released from work to attend those negotiations?---They are.

PN49.

They are fairly intensive negotiation sessions, aren’t they?---They are lengthy.

PN50.

Lengthy?---I wouldn’t know if I would describe them as intensive.

PN51.

I will take “lengthy.” Similarly, with the construction and maintenance, there are a number of negotiation sessions proposed to take place over the next few weeks?---I understand, again, there is two two-week blocks.

PN52.

Still to go?---Yes.

PN53.

You don’t attend those ones, as I understand it?---I don’t attend those ones, no.

PN54.

But Mr Hooper reports to you what occurs; is that right?---That’s right.

PN55.

In the train crew and ops negotiations, you will recall that evidence was given on the last occasion about driving motor cars and limitations on that function. Do you recall that?---Yes, yes.

PN56.

That was one of the complaints, one of the significant complaints that were raised; restrictions, as it called them?---It was part of one – one of the – part of one of the issues that were raised.

**** MICHAEL FRANCIS HEENAN XXN MR FRIEND

PN57.

You would agree that there is now agreement in principle in relation to that and words are being drafted in respect of that?---No, there is no agreement in principle on that.

PN58.

You don’t agree that there is agreement in principle?---No.

PN59.

Can I show you a document?---Yes. Thanks.

PN60.

You may not have seen this document before but if you have a look at it and tell me if the content of it, in terms of what it proposes, is familiar to you?---Yes, well, this is dated 6 February, and I haven’t seen this. I don’t believe it has been sent to me yet. So, what, the 6^th was Friday, as I understand it. As I understand it, the unions were to draft the proposal as they understood it, their proposal, and send it to us and we were going to go backwards and forwards by email this week and hopefully reach an agreement.

PN61.

Because there had been some movement in relation to that area, at least. Do you agree with that?---In relation to car driving, yes, there was. But there hadn’t been agreement in principle.

PN62.

So the unions had made a concession in relation to car driving but it hadn’t reached the stage of agreement in principle. Is that as far as you would go?
---Well there had been some movement in relation – there had been a lot of discussion in relation to the - - -

PN63.

Yes, and some movement by the unions?---The proposal, as I understood it, on Friday, was conditional upon a new leave – a new aspect of leave being agreed in fatigue leave. Now, I have - - -

PN64.

Could you look at paragraph 8?---Yes, that’s right. Now, we had told the unions that we couldn’t agree to that.

PN65.

Do you see paragraph 9: “Train crew must only report legitimate fatigue.” Then at the bottom underneath that it says: “Agreed this would go in, in exchange for point 8 which is still under discussion.” Would that be a fair reflection of where it is?---No, that’s the first I have seen that.

PN66.

That is the first you have seen that?---Yes.

PN67.

But you will agree that there is now some real debate and negotiation over this point which has the prospect of reaching a conclusion?---This particular point?

PN68.

Yes?---Yes, there has been quite a bit of debate and discussion around it, yes.

**** MICHAEL FRANCIS HEENAN XXN MR FRIEND

PN69.

But you don’t have anything about that in your statement, do you?---No, I don’t. I mean, this isn’t in an order of magnitude one of the key issues that we discussed.

PN70.

Could I suggest in the hearing earlier that was stated to be a significant issue by the Aurizon witnesses, wasn’t it?---Well, it was part of a broader issue of demarcation. So it was one aspect of demarcation, I suppose. So, yes, it is an issue that we would like resolved definitely.

PN71.

Yes, and you are getting somewhere?---We are making some steps towards agreement in that area, yes.

PN72.

Has there been some discussion about changing provisions in relation to transfer and a merit based system being introduced?---Are you referring to train crew transfer guidelines?

PN73.

Yes, I am sorry, yes?---Yes.

PN74.

That is true?---Yes, there has been.

PN75.

Again, that is progress from the point of view of Aurizon?---There has been progress on the trine crew transfer guidelines, yes.

PN76.

Do you recall a meeting between yourself, Mr McKeever on the Aurizon side and Mr Smith from the AFULE and Ms Brewer on 27 January?---Yes.

PN77.

Do you recall Mr Smith saying that the AFULE was prepared to consider allowing shifts to be extended during the shift to the maximum duration in exchange for a penalty rate?---He may have said – we talked in pretty broad terms.

PN78.

Yes, broad terms?---Yes.

PN79.

But he was putting on the table a possibility that there might be movement on that issue for penalty rate?---On that issue, yes.

PN80.

The same with lift-up and lay-back for a penalty rate?---Well, again, it was very light on detail.

PN81.

But there was movement in terms of, from your point view, it had been, “No, no, no,” until 27 January and now it is a possibility; correct?---From one of the unions.

**** MICHAEL FRANCIS HEENAN XXN MR FRIEND

PN82.

From one of the unions?---Yes.

PN83.

In terms of the other stream, are you aware that – I am sorry, I shoulder tender that document I gave to Mr Heenan.

PN84.

MR DIXON: I object.

PN85.

MR FRIEND: Well, I don’t press it. I might have to call my rebuttal evidence. In terms of the other stream, are you aware that there has been a proposal from the unions for a different dispute resolution clause, changes to the dispute resolution clause?---Yes.

PN86.

That is under consideration by Aurizon?---Well, as I understand, it was rejected in the bargain.

PN87.

You haven’t told the unions you have rejected it, have you?---My understanding was that it had been.

PN88.

There has also been a proposal from the unions in relation to rail passes. That is another significant issue from your point of view, isn’t it?---Rail passes is a significant issue, yes.

PN89.

You are aware of a proposal in relation to those?---I am aware that it has been discussed. I don’t know that there has been a formal proposal put.

PN90.

The proposal, I suggest to you, is that home and duty passes would expire and no longer be offered after the closure of the Redbank workshop?---Right.

PN91.

You are not aware that that has occurred?---I am not aware that that is the substance of that.

PN92.

So Mr Hooper hasn’t passed that onto you that it has occurred?---I am aware that it was discussed.

PN93.

You aware it was discussed?---I don’t know that – I don’t know that that was the formal proposal that was put.

PN94.

But that would be a proposal that would go some way towards Aurizon’s position in relation to rail passes?---Well, in the construction and maintenance stream, it is only really Redbank that use the home and duty passes. So once the Redbank facility is closed, there wouldn’t be anyone that would be using them anyway.

**** MICHAEL FRANCIS HEENAN XXN MR FRIEND

PN95.

When you say in paragraph 36 that there are no proposals in relation to any of the outstanding issues or the significant issues I suppose you are saying that have been put in any meaningful way?---Mm-hm.

PN96.

You mean, therefore, I take it, because you haven’t mentioned any of these other things in your statement that they are not meaningful. That is not movement as far as Aurizon is concerned?---Well, I think the issues are outlined in paragraph 35.

PN97.

The position of Aurizon was, is, always has been, that unless it gets its key issues resolved in a satisfactory way, there is no deal?---Sorry, say that again.

PN98.

Aurizon’s position was, is, and always has been, that unless it gets its key issue resolved in a satisfactory way, there will be no deal?---That’s right.

PN99.

So movement like this doesn’t cut it with you at this stage?---Like what, sorry?

PN100.

Movement like the sorts of things I have been asking you about. The offers that the unions have been making. The discussions about changes. That just doesn’t make a difference as far as Aurizon is concerned?---Well, it doesn’t touch the key issues that are outlined in 35, no.

PN101.

Some of these things were key issues when we were having evidence before the Commission on the last occasion. So are they no longer key issues because the unions have moved on them?---Well, I don’t accept that we have changed our position on that.

PN102.

Nothing further, if the Commissioner pleases.

<CROSS-EXAMINATION BY MR REITANO [3.38 PM]

PN103.

MR REITANO: Is it the case that a couple of weeks ago, I think, that there was agreement in principle on rostering principles as well arrived at in the negotiations?---On rostering principles?

PN104.

Yes?---No, not that I am aware of.

**** MICHAEL FRANCIS HEENAN XXN MR REITANO

PN105.

Can you tell me, has anything changed in terms of your position that there is no reasonable prospect of agreement? Has that been the view you have held consistently at least since when we were here last, last year, and today?---Well, absent any proposal from the unions that deals with the key issues in a way that is satisfactory to us, then, yes, that remains my view and that we haven’t had a proposal that deals with those issues.

PN106.

Has your view changed at all, was my question, since we were here last November?---No.

PN107.

At any time?---No.

PN108.

You have consistently held the view that there was no prospect of agreement?---Well, not unless we get proposals that deal with the key issues in a way that is satisfactory to us.

PN109.

Absent that, you have consistently held the view that I have described?---Yes.

PN110.

You see, you wrote to Mr Dugan on 29 December telling him that if the union, the RTBU, was to take industrial action that would distract all parties from the bargaining and is more likely to delay the reaching of an agreement. That is correct, isn’t it?

PN111.

MR DIXON: I think my learned friend is summarising what is written. It is not necessarily precisely what is written.

PN112.

MR REITANO: Amongst other things, you wrote to Mr Dugan. If you need to see the letter I can show it to you if you have forgotten that you wrote this. But that you said to Mr Dugan: “The protected industrial action will distract all parties from the bargaining and is more likely to delay the reaching of an agreement.” Correct?---Well, I would like to see the letter, but I had the view that industrial action wasn’t going to assist the bargain.

PN113.

That wasn’t my question, sir. I will show you the letter. Could I perhaps do it this way because it is a little bit quicker? I think it is annexure PA15 to Mr Allen’s statement. But I can hand up copies rather than put the Commission to the trouble of diving to find it, if that assists. That is one for the witness and that is their Honours want one. It is the second paragraph: “This is a disappointing and unnecessary”?---Yes.

PN114.

Do you see the last sentence of that paragraph?---Yes, I do.

PN115.

See, at that time you were of the view that there was the prospect of an agreement, correct?---Well, I guess what that sentences summarises is that if there was a prospect of reaching an agreement industrial action wouldn’t help it.

**** MICHAEL FRANCIS HEENAN XXN MR REITANO

PN116.

So what it says is that it will delay reaching an agreement. It doesn’t say what you just said, does it?---Well, I know what it says, yes.

PN117.

You were of the view then that there was some prospect of an agreement being reached, weren’t you?---Well, of course I was hopeful that bargaining might produce an agreement. Of course I was hopeful, but I hadn’t had any – I hadn’t received anything from the unions that moved us closer to an agreement at that point and I still haven’t.

PN118.

But you didn’t say to Mr Dugan: “Protected industrial action is unnecessary because there is no prospect of an agreement,” did you?---Say that again, sorry.

PN119.

You didn’t say to Mr Dugan in that letter or anywhere else that: “Protected industrial action is unnecessary because there is no prospect of reaching an agreement,” did you?---No, I didn’t say that no.

PN120.

The next thing I want to ask you or the other thing I want to ask you about is this. You talk in your statement of – I think you say that the unions haven’t put any proposals or haven’t put any concessions, quite apart from, for the moment, the things that my learned friend, Mr Friend, asked you about. Has Aurizon made any concessions or put any proposals since November last year?---Well, I think the unions are very clear about what our position is on all those key issues.

PN121.

Would you do me the courtesy, sir, of answering my question, please?---Sorry?

PN122.

Would you do me the courtesy of answering my question, please?---Well, we have made some progress, as I indicated to Mr Friend, in the areas of transfer guidelines and car driving. So there have been some – there have been some concessions in those areas.

PN123.

Has Aurizon put any proposals in other areas?---No.

PN124.

If it please the Commission.

PN125.

VICE PRESIDENT WATSON: Mr Dixon.

<RE-EXAMINATION BY MR DIXON [3.43 PM]

**** MICHAEL FRANCIS HEENAN RXN MR DIXON

PN126.

MR DIXON: Mr Heenan, would you just go to your letter of 29 December 2014 that you were asked about, which is PA15 to the statement of Mr Allen. There is a paragraph that follows the one that you were just asked questions about where you say: “I urge you to withdraw the notice of protected industrial action and for bargaining to continue in an open and constructive manner.” What did you have in mind when you urged the union in that regard?---Well, I suppose what I had been saying in bargaining for 18 months or so – for 18 months or so up to that point and in previous correspondence. I wanted the unions – the bargaining representatives, I suppose, to deal with the issues that were key around rostering, no forced redundancy, all of those matters that are mentioned in paragraph 35 in my previous statements. I wanted them to come to grips with those issues in the bargaining. And up to that point we hadn’t received any proposals that moved the parties closer together. So that is what I had in mind when I was - - -

PN127.

And as of now, have you received any proposals from any of the unions on those topics that changed that position?---No.

PN128.

In relation to the car driving issue that Mr Friend asked you about, he suggested to you that there was an agreement in principle which I think you did not accept; is that correct?---Yes, that is right. I don’t accept that.

PN129.

As far as you are concerned, are there outstanding issues in relation to that matter as far as Aurizon is concerned?---Well, it was left on Friday that one of the delegates was going to email me what I assume was going to be something like this. And then we were going to via email try and land the issue. Now, I haven’t received this. I didn’t receive it on Friday and it was left that – it was left that the union proposal was conditional upon this new variety of leave being created, fatigue leave, so.

PN130.

No further re-examination, if the Commission pleases.

PN131.

VICE PRESIDENT WATSON: Thank you again for your evidence, Mr Heenan. You can step down.

<THE WITNESS WITHDREW [3.46 PM]

PN132.

VICE PRESIDENT WATSON: Any further submissions any party wishes to make arising from the further evidence?

PN133.

MR REITANO: Perhaps I can conveniently just – I just need to correct something in the written submission that we sent to the Commission in paragraph 5. I think we overstated the position to be frank about it. We said that a proposal had been put to Aurizon to consider. It really should be a proposal was put in respect of rostering and hours which reflects Mr Allen’s evidence at paragraph 30 of his statement. So to the extent that I have overstated the position, I obviously withdraw the submission and correct it in that way.

PN134.

VICE PRESIDENT WATSON: Thank you.

**** MICHAEL FRANCIS HEENAN RXN MR DIXON

PN135.

MR REITANO: The only other matter that I would want to add is that the Commission would in the light of the evidence reject the suggestion, particularly in terms of what is programmed over the next four weeks and the fact that it at least appears that some fruit has been borne of the negotiations to date we would the suggestion that there is no reasonable prospect of agreement being reached. I don’t want to put it any more eloquently than this. It is at odds with what is said in the letter of 29 December. Completely at odds with what Mr Heenan said there.

PN136.

Finally, there is one matter that I have raised with Mr Dixon that I don’t want to make an issue of and I wonder if you would just pardon me a moment while I speak to him and see if we sorted it out. I think there is something that Mr Dixon will correct in his submissions. “Correct” is, again, probably not the right word, but it will do.

PN137.

VICE PRESIDENT WATSON: Mr Friend.

PN138.

MR FRIEND: I don’t really want to add anything to the submissions that we have already made and say that the evidence is consistent with what we said the position was on the last occasion.

PN139.

VICE PRESIDENT WATSON: Thank you. Mr Dixon.

PN140.

MR DIXON: May it please the Commission. We seek to rely on the submission that was put to the Commission of 20 January 2015 on the question of whether the evidence was in truth new evidence and how it was relevant. May I perhaps ask the Commission to mark that submission?

PN141.

VICE PRESIDENT WATSON: Perhaps, Mr Reitano, we should mark your submissions in support of application to reopen because they do go to the broader issues.

PN142.

MR FRIEND: It will mean I am one-up on Mr Friend but still a long way to go to catch Mr Dixon.

PN143.

VICE PRESIDENT WATSON: Those submissions will be exhibit R9.

EXHIBIT #R9 SUBMISSIONS FROM MR REITANO

PN144.

VICE PRESIDENT WATSON: And the submissions you have just referred to, Mr Dixon, will be exhibit D34.

EXHIBIT #D34 SUBMISSIONS FROM MR DIXON

PN145.

MR DIXON: If it please the Commission. I don’t intend to, of course, read those submissions. They are put in detail. I wanted to just highlight a few matters. If the Commission would please turn to paragraph 3 which deals with what we have described as ground 1, that bargaining for a new agreement is continuing. What is quite apparent from the evidence is that the unions having attended a range of meetings with delegates over January and into February there has been virtually no material progress made at all and Mr Heenan maintains his position, consistent with the evidence, that there is, absent some major concessions being made, no reasonable prospect of agreement being reached.

PN146.

Subparagraph 3(b) deals with the suggestion in the RTBU submissions that bargaining representatives have attempted to deal with some of the concerns raised by Aurizon. Put in that way and one recognises that some of the concerns is of a very limited basis it may be accepted. However, in other respects it is an overstatement and is of no import in the scheme of all the key issues requiring change.

PN147.

The RTBU has come along to support the reopening and its submissions, principally on the basis of what is said in Mr Allen’s evidence and I take you to paragraph 15 of our submission that the RTBU put a proposal. There has been some discussion and there has been some discussion about classification structure. All of which, of course, applied at the time of hearing. There is no evidence of any significant change of the position at the time of the hearing which you will see we have dealt with in paragraphs 17 and 18, because what is attached to Mr Heenan’s supplementary affidavit, exhibit D10, attachment M5, was the same subject matter without any real material change.

PN148.

Paragraph 26 is the item that Mr Reitano was drawing your attention to and my attention to after the evidence closed and in subparagraph (c) we have said there was no request made by the RTBU to Aurizon’s solicitors. Mr Reitano has shown me material which indicate that emails were sent to Mr Morris whilst he was on leave and I think Mr Reitano accepts our explanation that none of that came to Mr Morris’ attention. Nothing, in my respectful submission, turns on that, but I need to correct what is in paragraph 26(c) in light of what he has indicated is the position.

PN149.

So if one looks at the evidence that was said to be of such significance that the tribunal was required to reconstitute Mr Allen’s statement and, in my respectful submission, nothing in that statement favours the Commission not terminating the enterprise agreements. If anything, the evidence shows that both the RTBU’s evidence and Aurizon’s evidence points further to support termination being what should occur. The RTBU and Mr Friend’s clients don’t point to any document that is put forward to Aurizon which contains anything in a comprehensive form which is a proposal for Aurizon’s discussion. Nothing has effectively changed since the union representatives gave evidence in the proceedings in November last year.

PN150.

There is no other meaningful proposal on the key issues of concern, despite all the meetings that are referred to in Mr Heenan’s paragraphs 27 and 29 and the Commission must obviously judge that in light of the fact that at the time of the hearing there had been 80 meetings which had got nowhere. What this does show is that there is a further reason to reject the submission of the unions at the conclusion of the hearing that it is too early to disturb the bargaining. No real material progress has been made on any of the critical issues and the parties remain fundamentally apart and in that circumstance nothing has changed from the position which pertained at the time of the conclusion of the hearing.

PN151.

The suggestion that Aurizon’s position has changed by reference to the correspondence of 29 October, in our respectful submission, fails into account what is, in fact, said. Throughout the correspondence, if we go back to the statement of Mr Allen and you will see that. I don’t need to take you to any of that, some of the earlier correspondence in detail, except to the effect that Aurizon was urging the union to bargain in a constructive and meaningful fashion, in an open and constructive manner. Now, that has got to be read in the context of what it was complaining about that it was not getting a proposal. You will see Mr Heenan’s evidence to the effect that in December he had left a meeting on the basis that there would be a written proposal of all the matters that the unions would put forward. That didn’t materialise and that there is a considerable misconstruction on the part of the unions as to what Aurizon was seeking to do.

PN152.

Can I take you to what is at PA17 which is the letter of 30 December 2014, which is apparently relied upon by Mr Allen to suggest that Aurizon’s position has changed? In the second paragraph it says – this is from Mr Dugan – he says: “I note your comment that in the event the notice of protected action was withdrawn you believe that bargaining can continue in an open and constructive manner.” That, in my respectful submission, misrepresents the letter of 29 December. The letter of 29 December, it was not said that in the event that it was withdrawn. It said: “I urge you to withdraw and for bargaining to continue in an open and constructive manner.” The term “open and constructive manner,” of course, cannot be interpreted other than that the unions had to get real in putting something worthwhile to address Aurizon’s concerns.

PN153.

In my respectful submission, the correspondence attached to Mr Allen’s statement does not alter the position which pertained. There has been no change of position and the paragraphs which are relied upon by the union in its written submissions when viewed in their context and in their terms, clearly in no way support the position that is being advanced that the fact that bargaining is to continue can make any material difference to what the Commission is required to do determine.

PN154.

May I just go back? The application in these proceedings from day one acknowledged that with or without termination the parties were at liberty to continue bargaining and at liberty to utilise all the measures available in the Act to reach agreement. So section 228 is the context in which you are being asked to judge this. Section 228 imposes on Aurizon an ongoing obligation of good faith bargaining. It has an obligation to consider to meet when requested to do so. It has met that.

PN155.

So the suggestion that because Aurizon continues to meet those obligations, the tribunal must postpone or not terminate the agreements which are imposing the inefficiencies on its operations, in my respectful submission, should be rejected, particularly because it, in effect, negates the operation of the section which permits the Commission to terminate the agreements if the prerequisites are met.

PN156.

Can I then just return to the written submissions filed by the RTBU which Mr Reitano referred to? Paragraph 3 refers to evidence directed at demonstrating that bargaining for a new agreement is continuing between the parties. That, of course, was always contemplated. The Act contemplates it and it was acknowledged at the time. It is not contrary to the submissions if one looks at those paragraphs. That is a misstatement. Secondly, it said in paragraph 4, by reference to paragraph 4033, that there was no certainty following the proposed protected industrial action. That is dealt with in our written submissions and it is not an accurate reflection of what is said at 4033 and is not in any sense new evidence which the tribunal should be troubled about.

PN157.

Paragraph 5, both Mr Reitano and I put in its proper context. The suggestion in paragraph 5 that the proposal which is referred to in Mr Allen’s statement to Aurizon for it to consider, which is directly contrary to the submission that Aurizon made at PN-4320, is breathtakingly inaccurate. We have set out that paragraph in our written submissions and that cannot be an accurate reflection of what is said in the context of what is being answered in the submissions of the RTBU and, of course by the other unions that adopted those submissions.

PN158.

So, in our respectful submission, what is apparent from the evidence so far is that enormous efforts have been made to try and get agreement that is not happening. And, in those circumstances, we respectfully submit that there is nothing being put to supplement the case on the part of the unions which would deter or delay the tribunal in determining the application on the grounds that were previously advanced and advanced today. Those are our submissions.

PN159.

VICE PRESIDENT WATSON: Thank you, Mr Dixon. Mr Friend, we will mark the submissions that you filed in support of reopening, exhibit F21.

EXHIBIT #F21 SUBMISSIONS FILED IN SUPPORT OF REOPENING

PN160.

MR FRIEND: Yes, thank you, Your Honour.

PN161.

VICE PRESIDENT WATSON: We will have regard to the supplementary evidence and submissions in this matter in considering our decision. We now adjourn the proceedings.

ADJOURNED INDEFINITELY [4.04 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL FRANCIS HEENAN, SWORN [3.24 PM].......................................... PN20

EXAMINATION-IN-CHIEF BY MR DIXON [3.24 PM]..................................... PN20

CROSS-EXAMINATION BY MR FRIEND [3.26 PM]......................................... PN32

CROSS-EXAMINATION BY MR REITANO [3.38 PM].................................... PN102

RE-EXAMINATION BY MR DIXON [3.43 PM]................................................ PN125

THE WITNESS WITHDREW [3.46 PM].............................................................. PN131

EXHIBIT R8 STATEMENT OF MR P ALLEN DATED 15/01/2015...................... PN9

EXHIBIT D33 STATEMENT OF MR M. HEENAN DATED 15/02/2015............ PN29

EXHIBIT R9 SUBMISSIONS FROM MR REITANO........................................ PN143

EXHIBIT D34 SUBMISSIONS FROM MR DIXON.......................................... PN144

EXHIBIT F21 SUBMISSIONS FILED IN SUPPORT OF REOPENING.......... PN159

Fair Work Commission Transcripts

AG2014/6009, Transcript of Proceedings [2015] FWCTrans 101 (3 March 2015)