B2014/1735, Transcript of Proceedings [2015] FWCTrans 330 (11 June 2015)

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PN1

THE DEPUTY PRESIDENT: Yes, good morning. Can I take appearances, please.

PN2

MR W ASH: Yes, your Honour. If the Commission pleases, I appear for the applicant and I hold instructions for the other union bargaining representatives.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Ash.

PN4

MR D DILGER: Good morning, your Honour. David Dilger from Page Seager, representing TasWater, seeking to continue the permission. I have no objection to Mr Ash's continued permission to appear either.

PN5

THE DEPUTY PRESIDENT: Yes, if it's necessary leave is granted in both cases. It seems from the papers that the conciliation process has been exhausted but I will ask the question, is there any - I won't use the word scope, is there any prospect of advancing it by conciliation rather than an arbitral proceeding. Mr Ash?

PN6

MR ASH: I wouldn't think so, your Honour. There's been a significant amount of time that's passed since the filing of the application and now. There have been some discussions. There were some discussions that were informally directed by McKenna C. Those occurred. They didn't resolve the matter. I don't think there's any utility in entering into further conciliation.

PN7

THE DEPUTY PRESIDENT: Mr Dilger.

PN8

MR DILGER: I think that's correct, your Honour, thank you.

PN9

THE DEPUTY PRESIDENT: Very well. Mr Ash, I'm in your hands.

PN10

MR ASH: Housekeeping matters first, your Honour, if that's okay. I intend to make an opening and I understand Mr Dilger will make a brief opening and then I want to call Todd Lambert as my first witness. He will leave the room after opening submissions and other witnesses will, which will leave only Mr Nelson for the respondent. Mr Washington is interstate. I've had some discussions with Mr Dilger about how he could give evidence and if acceptable to the Commission, we could call him on his phone this afternoon, he's expecting a call round about 2.30. Depending on whether or not Mr Dilger is still with Mr Washington later in the afternoon, I intend to then call Mr Crowley and then tomorrow morning Mr Crowley will probably continue. I have a directions hearing in the Federal Circuit Court at 9.30, I should be finished by 10 but I'd appreciate if we could accommodate that, and then Mr Flanagan will be called.

PN11

THE DEPUTY PRESIDENT: Yes. Yes, well from my point of view we can certainly accommodate Mr Washington by phone. Mr Dilger, do you have a view on that?

PN12

MR DILGER: Yes. No objection, your Honour. Mr Ash and I have had discussions about all of those procedural matters, so we're quite content with the course. There may be a suggestion depending on how we go with Mr Crowley, there was some misunderstanding with Mr Ash and I this morning whether Mr Crowley would be required today but what we think we'll do if we've got the time available, we'll start with Mr Crowley If possibly, your Honour, we may even start early tomorrow morning to accommodate starting Mr Crowley who I understand unfortunately has to leave early tomorrow, and then that's interjection period where Mr Ash will have to duck off to the Federal Court for his directions hearing.

PN13

We're in your hands how to accommodate it. The respondent is very aware though of that timing issue and we'll work with you to assist all of those processes.

PN14

THE DEPUTY PRESIDENT: We'll accommodate the parties to the best of our ability. An early start on Friday is very uncivilised Mr Dilger.

PN15

MR DILGER: Better than a late finish.

PN16

THE DEPUTY PRESIDENT: But we can accommodate that.

PN17

MR ASH: I think we can probably have those discussions a bit later today to see how we're going. Mr Crowley's commitments tomorrow are that he has another matter in the Commission in which he's appearing in before Wells DP at 11, and then he has a flight that leaves at two, so there may be some time after the conference before her Honour but we'll work through that.

PN18

THE DEPUTY PRESIDENT: Let's see how we're going towards the end of the day. Mr Dilger, the witnesses that you'll be calling.

PN19

MR DILGER: Mr Nelson is here, he's a bargaining representative. As soon as - I ask that he be permitted to stay for Mr Ash's opening and as soon as Mr Lambert's called Mr Nelson will leave, and we ask that he be excused till further required.

PN20

THE DEPUTY PRESIDENT: Yes. That's your only witness?

PN21

MR DILGER: No, we have Ms Garrott as well who we've not brought here today given that appearance but I noticed that also just - you may not have taken appearance for him but Mr Swanton has arrived who's a bargaining representative. He may need to go on the record, you know.

PN22

THE DEPUTY PRESIDENT: Mr Swanton, are you appearing in this matter?

PN23

MR SWANTON: I am, your Honour.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR SWANTON: I've made no submissions to date and don't intend to but if there are matters that as a bargaining representative I have difficulties with, I would seek leave to be able to appear to make that submission and just stay in order for any evidence that maybe needed from my perspective.

PN26

THE DEPUTY PRESIDENT: Do you intend to be cross-examining witnesses?

PN27

MR SWANTON: I don't, your Honour.

PN28

THE DEPUTY PRESIDENT: We'll note your appearance and you'll have the opportunity to make any submissions at the appropriate opportunity.

PN29

MR SWANTON: Thank you.

PN30

MR DILGER: Sorry, your Honour, I have three witnesses. I neglected to mention Rodney Bells who was in the papers as well. He'll appear after Ms Garrott.

PN31

THE DEPUTY PRESIDENT: Yes. So looks as though we'll be going into Monday?

PN32

MR ASH: My estimates for cross-examination are not as lengthy as Mr Dilger's. I think I will only be between an hour, an hour and a half with both Mr Nelson, Ms Garrott and a short period of time with Mr Bells, so maybe - particularly if closing is going to be by way of oral submissions then we probably would need the Monday.

PN33

THE DEPUTY PRESIDENT: Yes, that's right. I mean we've set aside Monday so it's not an issue. Yes, Mr Ash.

PN34

MR ASH: Yes, your Honour. I want to address the matters in section 238 of the Act. The applicant is a bargaining representative for the proposed enterprise agreement. The applicant had and continues to have concerns that the bargaining was not proceeding fairly and efficiently after almost nine months of negotiations at that time, where very little progress towards reaching agreement had been made. The applicant particularised those concerns in writing and provided them to the employer on 17 December 2014. The employer responded to those concerns on 19 December 2014 and the applicant didn't consider the response appropriate.

PN35

The applicant submits that the Commission will be satisfied that it has met and is meeting the good faith bargaining requirements of the Act. The evidence will disclose that the complaint of the employer in this respect are similar to its concerns when it filed for orders in the middle of last year, in that the good faith bargaining requirements are being met by all. The evidence and submissions of the employer appear more concerned with assuring the Commission that they have been in a relative sense bargaining with a higher level of good faith then adequately arguing that the applicant is not meeting the good faith bargaining requirements of the Act. The employer is conflating not meeting the good faith bargaining requirements of the Act with not agreeing to conduct the negotiations in a manner preferred by the employer.

PN36

They appear to attribute primacy to their preferences and so called broad parameters and consider give and take to mean that employees need to give so that TasWater can take. It was never going to be easy to consolidate three agreements with disparate conditions in the one, and we submit that the evidence will disclose that negotiations are at a stalemate. The order sought is needed. It will promote fair and efficient conduct of bargaining.

PN37

In relation to the question of fair and efficient conduct of bargaining, in relation to that question the Full Bench in the UFU case stated that:

PN38

The relevant consideration under section 238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made, the bargaining will at least be fairer or more efficient, or both, than it would be if no order were made.

PN39

Following the Full Bench's reasoning, the applicant need only establish in this matter that bargaining will at least be made fairer or more efficient if the order sought is granted. Despite this, it is submitted that the evidence will establish that the making of a scope order will make bargaining both more fair and more efficient.

PN40

Considering the volume of meetings and distance the parties remain apart, bargaining to date has undoubtedly been inefficient. It is submitted that there is no reason to expect it will be any different if no scope order is made. In these proceedings bargaining is clearly an impasse, the respondent is refusing to meet based on the issue of scope and is claiming they should not even put the proposed enterprise agreement out to ballot whilst the applicant is pursuing the scope order. The evidence of the applicant is that the respondent is blaming the applicant for this impasse, protective industrial action has been taken, very little if any real progress has been made in the negotiations for a significant period of time. Clearly, the order sought by the applicant, in our submission, is necessary to allow the bargaining to recommence.

PN41

A similar approach was taken by Sams DP in Shinagawa where his Honour dealt with an application by the unions seeking the maintenance of separate agreements, whilst the employer sought a single agreement to cover all employees. In deciding to make the scope order, his Honour said:

PN42

In my view, the legislature plainly intended that the Commission should take steps to rectify such a stalemate through the making of a scope order upon application by a party to the negotiations.

PN43

The evidence will also demonstrate that the process of attempting to bargaining one agreement, and the respondent's approach to that task, has had the effect of putting interests of different groups of employees into conflict. The Full Bench in the BP Refinery case recognised that this very circumstance can meet the fair and efficient test and they said:

PN44

One can postulate circumstances where bargaining for two agreements, for two groups will be more efficient than bargaining for a single agreement covering both groups. To give a single example; the evidence may establish that the two groups of employees have conflicting positions on issues that are important to them but not particularly important to the employer, as can arise where there are demarcation issues. In such a case, it may plainly be more efficient to have two separate agreements and avoid the effort and delay involved in resolving those issues for a single agreement.

PN45

There are a significant number of issues which are important to one group of workers but not at all of interest to another except insofar as they don't want to see their comrades lose any conditions. The applicant submits that the effect of the respondent's conduct in proposing an agreement which applies to all employees, in the general agreement, which produces a minority's terms and conditions of employment such that it could be overwhelmed by the votes of those in the majority is unfair. That is the employees currently covered by the Southern Water agreement who have no interest in the Cradle Mountain Water agreement and the Ben Lomond Water agreement employee's terms and conditions of employment, may determine what those conditions actually are.

PN46

The evidence of Todd Lambert will set out the sizes of the respective workforces covered by those three existing agreements, and the applicant submits that it's clear that the three separate regions have the capacity to out vote another region. For instance, employees covered by the Cradle Mountain Water agreement are only concerned with the adverse working conditions allowance and the other regions are not, and are much larger. Previous decisions of this Commission have found such a consideration to be relevant. In the ANZ Stadium case, Lawler VP referred to this issue and his Honour said:

PN47

The real remedy for a subgroup of employees such as the customer service employees in this case who perceive themselves to be unfairly disadvantaged by a proposed agreement, is for one or more of their bargaining representatives to seek a scope order. Such an order can be sought if bargaining is proceeding unfairly because the agreement will cover employees that it's not appropriate for the agreement to cover. In circumstances where there is a clear risk of the tyranny of the majority prejudicing the minority in a proposed agreement, it may well be open to the Commission to find that if bargaining is proceeding unfairly towards the minority this makes it inappropriate that they be covered by the agreement, and appropriate to make a scope order.

PN48

In the ASMOF case, Australian Salaried Medical Officers Federation v Commonwealth, her Honour Drake SDP dealt with an application for a scope order for some medical officers within a workforce at the Department of Human Services and her Honour held, at paragraph 24:

PN49

I was not satisfied that the general benefit of one agency agreement reflecting collaboration within the agency offset the difficulties for these particular employees.

PN50

It should be note that the Shinagawa case also involved a situation where, as in this case, there was concern that the interests of one group of employees would be overwhelmed by the interests of another. The comments of her Honour Drake SDP in the ASMOF case are apposite to the circumstances where the employer is arguing the desire of its board is to have a consistent set of terms and conditions of employment and that somehow would have to be fair and flexible.

PN51

The evidence will disclose unfairness and inefficiency in that recent bargaining meetings have only been concerned with the intractable position of the bargaining representatives and key issues. There are issues which are relevant to some of the employee bargaining representatives and not to other employee bargaining representatives. Consequently, some bargaining representatives are not contributing to the negotiations for up to 75 per cent of the time. If the issues were narrowed through the scope sought by the applicant all bargaining representatives would have a material interest in the subject matter of the negotiation at all times. The issues and contentions would relate specifically to the terms and conditions of the three existing enterprise agreements and there would be no duplication of processes, and the respondent's position is that their offer was a statewide package.

PN52

It needs to be reminded that this application is not about outcomes, it's about the process of reaching an agreement. It's submitted that the views of employees are important - an important consideration for the tribunal in answering the statutory requirement in section 238(4)(b). This consideration will also be relevant in considering whether or not it's reasonable to make the orders sought. There's a huge union density in TasWater and the unions have expressed the same concerns regarding issues with fairness and efficiency because of the employer's proposed scope. A survey will also be tendered, it's foreshadowed in the reply statement of Mr Crowley, which shows the vast majority of the employee respondents support the application.

PN53

In the AWU case the Full Bench considered the remarks of the Full Bench in the UFUA case, concerning the relevance of the views of employees. After noting that the relevant ILO convention supported the view that the preference of employees should be respected, unless there is good reason otherwise, the Full Bench said at paragraph 31:

PN54

The views of the employees become significant and prima facie carry greater weight than the subjective views of the employer, unless there are special circumstances.

PN55

In relation to whether or not the group is fairly chosen, as separate agreements are proposed in deciding whether the group of employees is fairly chosen, the Commission is also required to take into account whether the group is geographically, operationally or organisationally distinct. Relevantly those factors amount only to considerations and are not solely determinative of the fairly chosen question. As the Full Bench stated in the AWU case:

PN56

The obligation on a Commission is to take account of geographical, operational and organisational distinctiveness in deciding whether the group to be covered by the proposed enterprise agreement was fairly chosen.

PN57

A particularly type of distinctiveness may not exist in respect of the proposed group in a particular case and yet having taken account of that absence, it may still be clear that the group has been fairly chosen in all the circumstances of a particular case.

PN58

That Full Bench went onto say that:

PN59

It follows that the weight to be attached to the geographical, operational or organisational distinctiveness of groups if a broader group would be neutral in determining whether an order ought to be made, unless there are particular features of or circumstances associated with that distinctiveness that rendered a broader group one that is not fairly chosen.

PN60

It may be in this matter the Commission concludes that the scope proposed by the applicant and that proposed by the respondent are both fairly chosen. The relevant test would thereby be met. Importantly, the Commission has explicitly recognised that it's open to making such a finding.

PN61

Addressing whether or not it's reasonable in the circumstances to make the order. As recognised by the Full Bench in the AWU case, the bargaining provisions in the Act provide beneficial rights to employees to bargain collectively with their employer. The aim of course is to reach an agreement. As the evidence in these proceedings will demonstrate, an agreement is simply not a feasible outcome without a scope order being made. To put it another way, an employee's rights to collectively bargain are currently rendered meaningless.

PN62

That the respondent opposes the application is not surprising but even it must recognise the lack of real progress in the bargaining process to date, considering the various efforts that have been put in by the parties. Put simply, the bargaining process to date has been thoroughly inefficient. Bargaining has effectively reached - we say actually it has reached a stalemate. Conflicts of interest between bargaining representatives have emerged, the potential for the interests of certain bargaining representatives to be oppressed remains real and tangible.

PN63

It is respectfully submitted that the Commission must make an order to ensure that an agreement can reasonably be reached. If no order is made, it is contended that the employees will not reach agreement. They will probably walk away and stay on their current terms and conditions of employment through their nominally expired agreements rather than take a pay cut. The employer even conceded at paragraph 80 of their outline of submissions that the statewide meetings have been inefficient and continuing bargaining in that way is unlikely to achieve an agreement.

PN64

THE DEPUTY PRESIDENT: Thank you, Mr Ash. Mr Dilger, do you have an opening statement?

PN65

MR DILGER: I'll just be brief, your Honour. I'll just outline what I'm going to talk to you about today. There's a couple of things first. In the outline of submissions there is just some slight amendments to make. On paragraph 29, it should have of course read:

PN66

The CEPU's proposed scope order will not result -

PN67

so it was omitted, the word "not". It's quite clear that the objection continues there.

PN68

THE DEPUTY PRESIDENT: Sorry, paragraph?

PN69

MR DILGER: 29. It says:

PN70

The CEPU's proposed scope will -

PN71

and it should say "not".

PN72

THE DEPUTY PRESIDENT: 29. Yes.

PN73

MR DILGER: Then in paragraph 31, it says:

PN74

The scope order as proposed would not -

PN75

And then it should say "result in".

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MR DILGER: I won't go into full detail here, your Honour. What I will do is just give you some basic concepts and then I'll open in full most likely on Monday or Friday afternoon. It's very, very clear from the - both the legislative intent and the application of the authorities that there are three main problems with the current application, and that is the dispute as outlined by the respondent is a dispute about terms and conditions of employment, not scope. They fail at the first hurdle. This isn't the vehicle to have addressed the issues that they're facing. They could have addressed it through a bargaining order, through a protective action or through good faith bargaining.

PN78

The second major hurdle is the lateness of the application would render anything that you do now unfair and inefficient, given what the parties have already done. The authorities are unanimous that scope is an issue for bargaining, they should bring it up at the start of bargaining not seven months into bargaining.

PN79

The third issue where they fail is that this question of scope has already been asked and answered. You had Professionals Australia, a member of the SBU and Mr Crowley will turn up today and give evidence. This matter has already been addressed before Lee C and then subsequently with bargaining orders. So if they were ever really genuine about scope, you would have thought it would have been addressed in June, you would have thought it would have been addressed in October 2014 when they were before the Commission and they might have brought it up when the good faith bargaining application was made in July. What you will find in all of it, your Honour, they mention none of it. It's an afterthought that comes up at the very end.

PN80

Aside from that there will be other issues that you'll be able to find, but they're the three main ones. You'll find it will be unfair because it would be contrary to legislative intent of the Water Corporations Act enabling legislation of TasWater. You will find that there's no compelling evidence, you'll have a look at Mr Crowley's statement and you'll see when that actual material was surveyed. It was actually done after we'd even started delivering statements in this application. You'll find that it already deals with the geographical issues and that's the ordinary course of bargaining. You'll also find that if you are to grant a scope order the result will be you'll have employees in one organisation effectively with different terms and conditions. Something that the unions consistently agitate against and now something which confusingly they are actually seeking to achieve.

PN81

You will also find that this bargaining has just been conducted in a normal, usual and unremarkable manner and the authorities of that talk about, and it's an excellent quote because it talks about this, and this is what the evidence will show. In BRB Modular, the most recent Full Bench in scope:

PN82

Claims have been made, meetings have held, explanations have been provided for the union logs of claims. Negotiation has occurred; some, many claims have been rejected as is the respondent's entitlement to do so. The union is unhappy, maybe even frustrated not to have made greater gains. It has been a relatively normal set of circumstances.

PN83

What you will have a look at, your Honour, is an excellent history of organisational bargaining. When you look at when - and you'd be aware of this from your own Tasmanian heritage - but when you had all of those organisations coming from the councils, and you've got the numbers there but there were a number of industrial instruments, that was achieved in bringing all together. The process that you're following today is almost identical to that. Those three agreements took 47 meetings, we're only up to 20 here. Unremarkable in the course of what you're actually proceeding today.

PN84

The current bargaining is fair because the employees have been represented by union organisers; well resourced, experienced and they've progressed as an SBU. They have chosen to operate as an SBU and now you're getting claims that somehow it doesn't work out for us, we're not interested. Well TasWater can't be responsible for the manner and the task and the resources that they choose to utilise.

PN85

The other part about it you'll see is they're already exploring opportunities. After the scope application was made the parties meet again. They don't need to have large statewide meetings to keep negotiations going. In fact, when you have a look at it the most interesting fact out of all of this, despite the scope order being made on 31 December 2014, on 5 February Mr Ash here comes along and provides a proposal which actually is dated November 2014 and puts on the table again a single scope. If it had been so significant, if the reason why scope was why we're here, why in February 2015 would you go back to an issue that never existed before they made that application on 31 December?

PN86

Minority interests have already been taken into account, there's no issue there. You've seen people again represented by competent union representatives. It won't result in efficiency because part of the issue, and you'll see this from the materials, there's a hell of personal acrimony that occurs here, that's causing the issues. That's what Lee C had to deal with on 18 July 2014.

PN87

In fact, in that application Mr Ash in his submissions said what you should have done, TasWater, we should have just dealt with this as a bargaining order because what you're actually asking us to do is something more than what's required by the Act. Yet here we have the use, they're trying to achieve indirectly what they can't achieve through the normal course of bargaining. It's only about terms and conditions.

PN88

We'll talk about fairly chosen. I think the issue will be that the reality is there will be different levels of fairness in the scope of both organisations, and as Mr Ash rightly points out, he's able to establish that his is fairly chosen and we say ours is fairly chosen. They get over the line in that context, and that won't be necessarily determinative. We think in the terms of this application you won't have to pay much attention. I think the discussions that I talked about earlier in (b) are the important ones.

PN89

Finally, you get to reasonable in all the circumstances. You've got two sets of discretion here, your Honour. You've got discretion under (d) and then even if all of the elements are actually satisfied in (a), (b), (c) and (d) you still have discretion. So Mr Ash might get over the line on all four and you still might grant against the scope order. We say you'll do that anyway because he fails at the first hurdle in (b). But in those things you need to have a look at should they have pursued other alternatives; protected action, good faith bargaining orders, bargaining disputes. They have to take into account the productivity benefits of TasWater.

PN90

This isn't scope orders have been consistently referred to, and Mr Ash talked about the prima facie view of the views of the employees and then he just - you pick it up in the trail of his voice as he said, "and apart from other interests of the employer", which the Full Bench absolutely said "unless". We say you've got one massive hurdle to overcome. You've got the Water Corporations Act actually saying we want to achieve productivity by creating one organisation, we don't want to have three organisations. We've just come from that, it was inefficient, it didn't work, we consolidated way back in 2009 and we're consolidating again. We didn't consolidate hard enough. That's what they said. You'll have a look at the history and we'll talk about that.

PN91

The other issue you might talk about - some things are looking about how all of this came to play. On 17 December, after seven months of bargaining you get landed in a meeting of "we're going for a scope order". On 19 December, TasWater replied. On 31 December, with no further correspondence on the interim the application is filed. They were itching to get that scope order application. No discussions, seven months of negotiations, they're complaining 20 meetings wasted yet they can't bring themselves to even respond to the letter saying this is misconceived, you've got it wrong. Very happy to talk about we've provided this and you haven't provided that but when the push came to shove at the very end of this application, they chose to be obstinate, they couldn't come up with any solutions and threw their hands in the air and said you do the work. We say, your Honour, there's no work for you to do. This isn't the vehicle for you to be making any orders.

PN92

This is about a lack of satisfaction with terms and contents, and I'll talk to you about this with an analogy just to round out and give you summary of what you might be talking about. It's a difficult area of the law, there's lot of different - you've got good faith bargaining, you've got fairly chosen and you've got lots of discretion. This is so consistent with you've got an ordinary family; mum, dad, daughter and son and they say haven't seen you all for a while, let's go out to dinner. Everyone agrees we're all going out to dinner.

PN93

You go to a restaurant where they do lots and lots of things. When you get there you've started, you've picked up the son from somewhere different, and that's taken you time, you've picked up the daughter from somewhere different and that's taken you time as well, but you've all agreed we're here for that purpose. Then when you get there, despite the order being a whole raft of things, the son says; "I don't like flathead, I like trevally. Let's go somewhere else". The daughter says, "It's got pasta on the menu but I like the pasta at the Italian restaurant. Let's go to the Italian restaurant". Mum says; "Well the steak's good but I like the steak from the Ball and Chain, so let's go there".

PN94

You've got to ask yourself, in the whole legislative context of promoting bargaining, not outcomes, would you really think that it would be more efficient now for the parties to pack up, you've already arrived at the restaurant, and go and eat concurrently at four different places and eat the same? Yes, you might not have been happy with the pasta but it's available and there's a whole raft of other options. You could have traded off, you might also want the fish. The person who wants the fish; difference of flavour maybe but subtle. But are you asking us to pack up from the restaurant and eat simultaneously at four different restaurants, we're effectively starting the process again.

PN95

In fact, more than that we've just wasted all of the resources, the intent and all you will do is establish that we won't go to restaurants again as a family. We will go our separate ways because we need to get certain terms and conditions. We'll lead evidence from Mr Nelson, Ms Garrott and Mr Bells that will satisfy all of that. Thanks, your Honour.

PN96

THE DEPUTY PRESIDENT: Thank you, Mr Dilger. Mr Ash, are you in a position to proceed with evidence?

PN97

MR ASH: Yes, I call Mr Todd Lambert.

PN98

THE DEPUTY PRESIDENT: Thank you.

PN99

THE ASSOCIATE: Will you just state your full name and address, please?

PN100

MR LAMBERT: Todd Edwin Lambert, (address supplied).

<TODD EDWIN LAMBERT, SWORN [10.34 AM]

EXAMINATION-IN-CHIEF BY MR ASH [10.34 AM]

PN101

MR ASH: Mr Lambert, did you prepare a witness statement and reply witness statement in connection with these proceedings?‑‑‑I did.

PN102

Do you have those statements with you?‑‑‑Yes, I do.

PN103

Do you have both?‑‑‑I have one. I have one.

*** TODD EDWIN LAMBERT XN MR ASH

PN104

I will just get you a copy of your reply statement so you have it in the box when Mr Dilger cross-examines you. Have you read both statements recently?‑‑‑Yes.

PN105

Are there any corrections or amendments that you want to make to the statements?‑‑‑No.

PN106

To the best of your knowledge and belief, do the statements remain accurate?‑‑‑Yes.

PN107

Your Honour, I tender both those statements.

PN108

THE DEPUTY PRESIDENT: Do you want them marked separately?

PN109

MR ASH: I think - - -

PN110

MR DILGER: Your Honour, it I could be of assistance. Mr Ash and I have had the discussion. We are really content, and I think it would assist the process if the - I will have no objection to all of the elements provided by all of Mr Ash's witnesses, and I don't think he will have either, as they're provided. We're all aware of those numbers how Mr Lambert has described them as TL1, TL2, TL3 and if it wouldn't be of any great concern to the Commission, I think that would assist in both the discussions and probably in the evidence if we kept that reference in.

PN111

MR ASH: So those references are in relation to the first witness statements, the annexures are referred to as TL and then numbered. And in relation to the reply it's TLR and then numbered.

PN112

THE DEPUTY PRESIDENT: Yes. We'll mark the statement of Todd Lambert as TL and the response statement as - and that's with attachments. And the response statement will be TLR. Is that right?

PN113

MR ASH: That's right, your Honour.

PN114

THE DEPUTY PRESIDENT: TLR.

EXHIBIT #TL STATEMENT OF TODD LAMBERT, WITH ATTACHMENTS

*** TODD EDWIN LAMBERT XN MR ASH

EXHIBIT #TLR RESPONSE STATEMENT OF TODD LAMBERT

PN115

MR ASH: Nothing further.

PN116

THE DEPUTY PRESIDENT: Nothing further.

PN117

MR ASH: That's the evidence in-chief. The witness statements were filed.

PN118

THE DEPUTY PRESIDENT: Mr Dilger.

CROSS-EXAMINATION BY MR DILGER [10.37 AM]

PN119

MR DILGER: Thank you, your Honour. Mr Lambert, I've provided to you with earlier discussions with Mr Ash those court books for you. They are our evidence and our attachments and I'll be asking you to refer to them and read them. You may not need to. You may choose that you take what I say as correct and not require to do that, and if that's the case I just ask that you let me know or otherwise I will guide you through those documents. Your Honour, you have a copy of those as well.

PN120

THE DEPUTY PRESIDENT: Yes.

PN121

MR DILGER: I'll be referring to them in the manner in which they were delivered as well. So you're a senior official in this organisation, Mr Lambert, senior organiser?‑‑‑I am.

PN122

You negotiate agreements on behalf of your members and you're familiar with the requirements of the Fair Work Act?‑‑‑To the best of my ability, yes.

PN123

How many enterprise agreements do you think you've negotiated under the requirements of the Fair Work Act?‑‑‑Both as a delegate and as an organiser probably half a dozen.

PN124

CEPU is an affiliate of Unions Tas?‑‑‑I should imagine so, I'm not sure.

PN125

You would have received training either with your organisation or Unions Tas in the meaning and application of the Fair Work Act?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN126

Have you ever delivered training to other people like your delegates and organisers in the meaning and application of the Fair Work Act?‑‑‑I have assisted in some training of delegates, yes.

PN127

You'd have a good understanding of the application and meaning of the good faith bargaining requirements?‑‑‑Yes.

PN128

You've actually been a participant in a good faith bargaining application. You've appeared as a witness on behalf of the CEPU. TasWater made that application for good faith bargaining in these proceedings. You're unfamiliar with that, would you like me to direct you to it? Lee C gave recommendations on 18 July?‑‑‑I'm familiar with that.

PN129

You actually referred to it in your statement, you actually attached your statement and the application. Your union's actually made good faith bargaining applications in their own right in other matters, haven't they?‑‑‑Yes.

PN130

You also have a good understanding of the approval requirements for enterprise bargaining agreements under the Fair Work Act?‑‑‑Could you elaborate on that?

PN131

When an agreement is made and the parties will have voted that up, you then send it off - - -?‑‑‑Yes.

PN132

- - - and you get the opportunity to either put in the form 16, 17 and 23?‑‑‑Yes.

PN133

You have a good understanding of bargaining disputes under section 240?‑‑‑I'd like to think so.

PN134

You're aware of the requirements for taking protected industrial action?‑‑‑Yes.

PN135

In fact you've been to numerous industrial campaigns, some you've won, some you've lost but that's all part and parcel of enterprise bargaining?‑‑‑Correct.

PN136

You've organised and assisted your members in the taking of protected industrial action?‑‑‑To the best of my ability, yes.

PN137

You see protected industrial action as a legitimate means for achieving outcomes in enterprise bargaining?‑‑‑I see it as a last resort but if necessary, yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN138

As part of your role as an organiser, you'd be responsible for addressing matters such as work health and safety?‑‑‑To the best of my ability, yes.

PN139

You're aware of the general obligations to have a safe workplace?‑‑‑Yes, I'm aware of everyone's obligation to have a safe workplace.

PN140

The bargaining arena is a workplace too, isn't it?‑‑‑Yes.

PN141

Unions Tasmania and in fact your union have specifically spoken out against bullying recently, haven't they?‑‑‑I think all unions have.

PN142

So your organisation supports that stance?‑‑‑Yes.

PN143

It's interesting, most people at work think bullying is ganging up but bullying can be not obvious?‑‑‑Well I guess it's the interpretation of who's on the other end of it, I guess.

PN144

What about verbally intimidating or threatening a person, could that be a form of bullying?‑‑‑Yes.

PN145

Bullying can cause a range of health issues, can't it?‑‑‑I guess so, yes.

PN146

You wouldn't condone any form of verbally intimidating or threatening a person?‑‑‑No.

PN147

Would shouting or using expletives be reasonable or appropriate workplace behaviour?‑‑‑No.

PN148

Would making personal comments or attacks on other workplace participants be reasonable and appropriate workplace behaviour?‑‑‑No.

PN149

If there was a misunderstanding as to a particular issue, you would have to agree that you should seek clarification before publishing or distributing a version of events when that misunderstanding was not clarified?‑‑‑If it wasn't clarified.

PN150

You agreed as part of the CEPU to bargain as a single bargaining unit, the SBU?‑‑‑Correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN151

You appointed Kevin Harkins to coordinate those negotiations on behalf of the SBU?‑‑‑The SBU originally did as a collective group, yes.

PN152

Part of that appointment was that you agreed that the SBU would speak on behalf of your union and all other unions as part of the bargaining?‑‑‑Yes, that is correct.

PN153

One of the reasons you collaborate as an SBU is that the idea is it achieves efficiency to culminate your resources and to respond with a united front?‑‑‑That is correct but with seven unions involved, we didn't envisage the problems that we encountered along the way. This was the first time that we'd negotiated agreement on the scale of this where we brought in three into one, therefore the seven unions as opposed to individual agreements where we wouldn't have dealt with so many. So it was a trial and error thing really.

PN154

It's not really the first, Mr Lambert, is it? Your organisation negotiated the Southern Water agreement in 2009/2010, which brought 11 industrial instruments into one, the same level of unions?‑‑‑Correct. I was not involved in that though so I was unfamiliar with it.

PN155

They also were involved with the Cradle Mountain Water agreement where they brought six agreements into one?‑‑‑Once again I wasn't involved.

PN156

They were also involved with the Ben Lomond Water agreement where they brought 10 into one? So - sorry, I didn't let you answer?‑‑‑Once again, I had no involvement with that and therefore no previous history in regards to that negotiations - to those negotiations.

PN157

Do you dispute that that occurred?‑‑‑I don't think we can dispute that, no.

PN158

In fact, this one only requires three industrial instruments to be brought into one single agreement at this stage, doesn't it?‑‑‑It does, with a major variation of terms and conditions.

PN159

But when you have a look at the previous one in 2009, they were doing 25 different industrial instruments into three. It's a pretty good ratio?‑‑‑I guess it is, yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN160

So three into one or three into 25?‑‑‑I guess it comes back to what the various organisations were asking at the time in order for those agreements to be achieved too.

PN161

So those differences could be a difference of hard bargaining versus harder bargaining?‑‑‑Possibly, yes.

PN162

We talked earlier about the SBU putting forward a unified position and that's the intent, you said. So where individuals couldn't put forward a unified event that's likely to cause some confusion isn't it?‑‑‑I don't understand the question.

PN163

If you've got an SBU and you're putting out a position which is meant to be one unified position, if different members of that SBU were putting out different versions of that SBU message, that would be both confusing to the members of the SBU and to any respondent of those different messages?‑‑‑I guess it would and I guess it would also highlight the disparity and how hard this EA campaign has been.

PN164

You earlier agreed that the SBU could publish and distribute documents on behalf of your union?‑‑‑Yes, I think every union has got the right to distribute what they want to put out.

PN165

No, sorry, you misunderstood my question. The SBU could publish statements on your behalf, the CEPU's behalf. There's a number of documents in there, you've seen a combined SBU communications?‑‑‑Yes.

PN166

So the answer is yes?‑‑‑Well, yes, because I actually put together a lot of those documents with the endorsement of the SBU.

PN167

The SBU in their publication spoke for all of the individual union members?‑‑‑We spoke for the organisers that were present at the meetings at the time.

PN168

But in all of those materials, and I can get them out if you like, your logos are on all of them aren't they?‑‑‑Yes.

PN169

You've got everyone's different logo?‑‑‑Yes.

PN170

Anyone picking up that document would say all of those organisations endorse exactly what the SBU are saying?‑‑‑Well at the time, yes, we all had agreement that that was a fair and accurate account of the previous meetings that went out, yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN171

You were free at any time to revoke the authority of Mr Harkins?‑‑‑Correct.

PN172

You never at any time revoked the authority of Mr Harkins as spokesperson for the SBU?‑‑‑No.

PN173

You never at any time revoked the authority of the SBU to speak for the CEPU?‑‑‑No.

PN174

You were the person responsible for coordinating the CEPU's attendance at bargaining meetings?‑‑‑Yes.

PN175

You could choose whether your organisation attended a bargaining meeting or not?‑‑‑Yes.

PN176

You could even choose who attended the bargaining meetings from your organisation?‑‑‑That's not necessarily the case. In regards to delegates, we had a difference of opinion early on with how many delegates were there, so that was controlled by the companies how many they would let go. So I guess it wasn't like free rein that we could ring everybody.

PN177

No, not free rein within the context of their working relationship but in the numbers that you were permitted to bring, you got to choose how that was cut and diced?‑‑‑We tried to be fair and have a delegate from each region because - representing each particular agreement that was running at the time.

PN178

You identified you attended the majority of the agreed 20 or so bargaining meetings that have actually occurred in this process?‑‑‑Correct.

PN179

You were an organiser at the time of the creation of TasWater, on 1 July 2013?‑‑‑Yes.

PN180

You understood the legislative intent of the aggregation from the three regional corporations into one TasWater organisation?‑‑‑Yes, to the best of my ability.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN181

Just re-state the principal objectives, this is directly out of the legislation but the principal objectives, and I'll summarise them, were to provide water and sewerage functions to Tasmania, to encourage water conservation, the demand management of water and the re-use of water on an economic and commercial basis, to be a successful business and to that end to operate its activities in accordance with good commercial practice to deliver sustainable returns to its members and deliver water and sewerage services to customers in the most cost efficient manner. Sound accurate?‑‑‑Yes.

PN182

In fact, even in the second reading speech it talked about some specific items of what the intent of it was to achieve and it said:

PN183

To achieve further integration of administrative systems that would create opportunities for cost savings and reduce reporting and administrative effort, and an ability to draw on a broader base of employee skills and experience.

PN184

MR ASH: Is there a question?

PN185

MR DILGER: That's what the second reading speech said in summary?‑‑‑I guess so.

PN186

So you don't have any dispute with that?‑‑‑No.

PN187

The current enterprise agreements actually include differences in relation to work practices and the costs of those work practices, don't they?‑‑‑Yes.

PN188

In paragraph 20 of your statement you state some awareness regarding - and I'll just bring that up.

PN189

I'm aware that the discussion included specific examples of clauses which would be a challenge including; on-call, the adverse working conditions, the job security and the handling of sewer provisions.

PN190

You've said you've identified that they're what appears to be the main causes of concern in this bargaining?‑‑‑Yes, and we'd also previously identified them in a meeting with Ms Cathy Cuthbertson, I think, early November as we thought they were going to be a sticking point. That was when we had a discussion with her at that point in time, perhaps these should be put aside and be negotiated separated to the agreement at some sort of working committee because we did realise there would be problems there.

PN191

In fact you've actually in this statement - you've actually limited the scope of really what was discussion, haven't you?‑‑‑I guess that's open to interpretation. We never limited it intentionally. It was limited in the fact that we thought they would be the real sticking points and they've proven to be that.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN192

I don't think that's correct because the differences between the parties don't just relate to those four matters. In fact, the differences are much broader. In fact, when you have a look the differences that were currently in dispute, and I'll refer you to TW38. TW38 is a table which summaries the official SBU position as at February 2015. Ms Garrott's going to lead that evidence. The actual differences actually relate to dispute resolution; abandonment of employment, annual leave, annual leave loading, annual performance planning, blood donor's leave, classification structures, community service leave, compassionate leave, employment categories, coverage for senior professionals and specialists, first aid allowance, future negotiations, leave without pay, living away from home allowances, meal allowances, overtime, parental leave, probation, professional development, purchase leave, redundancy, shiftwork, study leave, summary termination, supported wage system, suspension, toil, transitions for the new agreement, travel, reimbursement of expenses and last but not least the wage increase. So they're still the issues currently in dispute?‑‑‑Yes, they're still in dispute but they were the ones that we'd hope we'd be able to negotiate around. With the bigger ones I think we've held meetings. You'll note we probably touch on that since trying to work our way through the smaller issues but still we maintain that these are the big four that we're miles apart on. But yes, there is - we haven't got an agreement.

PN193

In your statement you conveniently pointed out the on-call, which you say is a southern water issue, the adverse working conditions which you say is a north west issue, job security which is a northern region agreement issue and the handling of sewer provisions which is also a - all but it's in the south and the north. It's a lot more - in your application you've led us to a point where you're saying they're the issues that are stopping this agreement from occurring but the parties are talking about a whole range of issues which have none of that list, apart from those ones I talked about there are regional specific, are they?‑‑‑No, but they're not a list that we thought was insurmountable either. We thought we can actually - we could talk on them and I think the company's indicated that we could talk on those as well. It's the four dot points (a), (b), (c) and (d) that is written there that I think the company agrees with us even that we're miles apart on.

PN194

We've got a problem here because you say that's the problem but have a look and I will direct you to TW35. End of TW35. This is interesting because it's dated 2 December, 15 days before the ill-fated scope application - sorry, meeting regarding scope on 17 December. You've listed 22 priority items, so your four priority items are not four, they're actually 22. And again, I'm just going to go through them because the list is interesting?‑‑‑Can I have a look at that, TW35?

PN195

TW35, that's an email and it relates to - it goes on, it's a number of pages. I will just show you - may I approach?

*** TODD EDWIN LAMBERT XXN MR DILGER

PN196

THE DEPUTY PRESIDENT: Yes.

PN197

WITNESS: No, I've got it.

PN198

MR DILGER: Got it?‑‑‑I've found it, yes,.

PN199

MR ASH: From Luke Crowley.

PN200

MR DILGER: From Luke Crowley. So the first person is Trevor Gauld and then it contains an email from Alex Garrott and then the final one, that's where it all starts, it talks about "these are our issues". Priority issues, you call them, and in fact have a look at the first page on TW35. It's a statement from the State Secretary of the CEPU and he says this in the third paragraph

PN201

The CEPU I am sure the other unions have to raise the question or prioritising the issues with our members over the past three weeks. We wish it could be narrowed to a smaller number, however the message from our members has been loud and clear. The list provided by Luke -

PN202

those 22 issues -

PN203

are die in the ditch.

PN204

They're your die in the ditch issues, not those four you keep on talking about, Mr Lambert?‑‑‑Are you asking me to respond on behalf of the State Secretary?

PN205

No, I'm asking you to respond on the CEPU. That's what the CEPU have said; those 22 items are die in the ditch?‑‑‑Well, yes, like I can't - what's written there, he's wrote that there but as I say, part of a negotiation, there are things said.

PN206

Happens on 2 December, they're your 22 items. Those items again were actually all addressed, and I'm going to direct you to go to TW71. That document is interesting. Sorry, Mr Lambert, I haven't given you enough time there. Perhaps I'll just show Mr Lambert - - -

PN207

THE ASSOCIATE: I don't think the new ones have been tabbed past 66.

PN208

THE DEPUTY PRESIDENT: Yes, mine have.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN209

THE ASSOCIATE: They have a new one.

PN210

MR ASH: What was it TW?

PN211

MR DILGER: 71. Take that one, swap that over, apologies, your Honour.

PN212

THE DEPUTY PRESIDENT: Mine only go to 66.

PN213

MR DILGER: Apologies. It's just that they haven't been numbered but it is in there. That document's one of your documents anyway, Mr Lambert, and in TW71 it actually - it's a changed document. It has a vexed history because it's presented on the meeting on 4 December 2014 and it's also updated on 8 December 2014 and it's actually represented by Mr Ash on 5 February 2015. If those four issues are the issues that are preventing, why are all these changes in the document of what you're proposing to be accepted?‑‑‑Well I don't - I don't entirely understand the question. I think what it does is further highlight how far apart we are and why there was an 88 per cent no vote against it.

PN214

That was a document presented by you, it's not TasWater's agreement, Mr Lambert. That's what the SBU presented to TasWater of a proposal capable of agreement on 4 December 2014. If TasWater would have agreed to that, we wouldn't even be here today. There would have been no scope order, that's what you told them. They had to agree to all those terms?‑‑‑I think it was put forward in the spirit of good faith bargaining where we hoped that we could move forward with it. Ultimately, it would be determined by the members themselves, not by us.

PN215

But you've put it forward. What are you saying, that it wasn't capable of acceptance?‑‑‑I'm saying that coming back from an 88 per cent no vote, from the feedback that we've got, we thought it was a way forward but it's not for me to say that would have got up. I don't vote on it.

PN216

You don't vote on it but the members respect your recommendations. Surely you're not suggesting you put up documents that you don't think your members would actually agree to?‑‑‑We put it up as a way forward.

PN217

If it would have been accepted, if TasWater would have said okay, that's a deal, that would have gone out - you would have been happy for it to go out to a vote?‑‑‑TasWater decides what goes out to a vote, not us.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN218

That's a good point. That's exactly what happens but it would have at least given you an agreement, wouldn't it? An in principle agreement between the bargaining parties?‑‑‑I guess so, yes.

PN219

In fact, it's critical in this one because that very document was provided by Mr Ash on 5 February 2015, and in that document, the same document, it was that is our offer. So on 5 February 2015, that document also would have resolved all of these issues we're having today, if it had been accepted by TasWater?‑‑‑To be honest, I'm unfamiliar with all of it, there's been a lot of water go under the bridge since this document was produced but if we're to put that forward I guess we would be confident that would be the case.

PN220

Mr Ash is your representative, you've said before the CEPU were happy for the SBU to speak on their behalf. That was put on 5 December - sorry, 5 February 2015. It was capable of being resolved?‑‑‑I guess it also highlights the willingness we had to try and reach an agreement under the proposal and the guidelines that TasWater had put forward to try and accommodate their requests.

PN221

That's the normal give and take of bargaining, Mr Lambert. Put proposals, get them responded to, that's correct?‑‑‑It is but the tone that I'm hearing at the moment is that we - I might be wrong but it's asserted that we've made no effort to try and accommodate TasWater in their - in their want to have one agreement, and we've actually tried to work with them on many occasions in order to do so.

PN222

No, my point was simply in your statement you allude to the fact there was only four issues and they're all regionally based when in fact when you have a look at it there's a hell of a lot more. I talked about your priority issues on 1 December being 22 and then I talk about a series of documents kept on being put and the most significant point, have a read on page 6 of that statement which is the general agreement. And go specifically to 2, which talks about the parties. Got nothing to do with the regional scope has it, Mr Lambert? In fact that's a single statewide agreement right there?‑‑‑Yes, that's correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN223

So interesting, you've got that document and you can see that it was presented on the 4th. It was amended on 8 December. It was represented on 5 February 2015, yet you made a scope application on 31 January seeking a regional scope?‑‑‑Yes, in response to speaking with our members that were frustrated about the lack of progress that had been made. I think it's important to understand that as a - as a representative of the members in the three regions, I am to take their feedback back, we had an 88 per cent no vote. We'd come back to TasWater on numerous occasions in order to try and reach some sort of agreement. I still maintain there's a stalemate, with all our toing and froing it was getting nowhere. We went back to our members and we said what do we do, and the instructions following that was that we try and keep what we've got. We already - we already fundamentally moved our position substantially, I feel. Our original claims, as you would be aware, was best of the best and then we chose it to so no one would lose anything. Now as it's rolled and it's progressed, given the course of time we have been unable to - my job as a - my job as an organiser is to try and get the best agreement for my members and we have tried to do that. But unfortunately after speaking with our members, it's changed around that time because our members have said we just want to stay where we are. We don't want to lose anything.

PN224

TasWater's functions are undertaken on a statewide basis under the banner of TasWater?‑‑‑Correct.

PN225

Management structures operated on a statewide basis without geographical distinction?‑‑‑Yes.

PN226

Under the industry modern award people with the same duties theoretically should be classified at the same level, given their skill and knowledge requirements?‑‑‑I guess so, yes.

PN227

The roles identified in 16 of your paragraph, paragraph 16, you talk about water and sewer plumber, waste water treatment plant fitter, they are all the same or substantially the same tasks and duties regardless of where they work in TasWater?‑‑‑Correct.

PN228

Apart from familiarity with a particular workplace, there's actually no difference in skill and knowledge requirements to conduct those operational duties between geographical regions?‑‑‑Correct.

PN229

In fact, work health and safety program such as the recently launched Zero Harm strategy, they're undertaken on a statewide basis?‑‑‑Yes, sir, yes.

PN230

Training and development, including TasWater's own leadership program. That's undertaken on a statewide basis?‑‑‑Correct.

PN231

There's also a number of committees and they operate on a statewide basis?‑‑‑Correct.

PN232

The former Onstream employees, well they've always cooperated on a statewide basis?‑‑‑Correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN233

In your role as an organiser, Mr Lambert, you previously objected to distinctions between employees working side by side, receiving different terms and conditions, haven't you?‑‑‑I guess so.

PN234

You guess so or you have?‑‑‑Well we would have, yes, I guess you're referring to Aurora.

PN235

Absolutely I'm referring to Aurora. You were vehemently opposed to people working along side by side, in fact there was - one of the issues was grandfathering the NES versus the redundancy entitlement. Sorry, other way around, grandfathering redundancy and imposing the NES or something equivalent. You said that would be absolutely unfair to do that to employees?‑‑‑That's correct and I also think it's unfair for employees to lose wages and conditions overall in terms of a merger, which we're seeing at the moment, a merger of three organisations. I'd like to add at this point, Mr Dilger, that we have asked the CEO and one of his senior managers to actually go around to the three regions and speak to the guys themselves, our members and employees and demonstrate to them how they could not go backwards in wages and conditions through this merger. Now he has been unable to do that, in fact he has refused to do that on no less than two occasions. So as you would understand that is why we're here today.

PN236

No, that's not why we're here today. You're arguing about a three regional scope, what you've talked about there is exactly the reason why your application will fail, is because you're talking now about terms and conditions and trying to get a scope order to achieve it. That's why we're here today?‑‑‑No, what I'm talking about, in order to get a scope order to achieve this is the only way that we can demonstrate where the guys won't lose that. We're quite happy and we've demonstrated we're quite happy from the start to try and accommodate TasWater in their needs to negotiate one agreement. That has failed. That has failed spectacularly in the vote.

PN237

Just let me be clear, Mr Lambert. I've made a note of that. The reason you're here today is to that your members won't lose out?‑‑‑No, what I'm trying - what I'm trying to and I hope we can establish this as we move forward is how we in good faith bargaining tried to accommodate TasWater in their needs, but as it progressed the SBU fell apart in terms of all of a sudden there was different unions who represented different regions, that were only interested in their own members and through that process all of our - all of our members could have lost out.

PN238

I'll come back to that part about the SBU in a minute. But if a rollover agreement were achieved, you would effectively end up with people in the north, north west and the south working under different terms and conditions?‑‑‑As they are now.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN239

But TasWater has undergone significant change since 1 July 2013, hasn't it?‑‑‑Yes.

PN240

In fact, still undergoing the period of transition since 1 July 2013?‑‑‑Yes.

PN241

TasWater has commenced an ongoing program of standardisation, in terms of uniforms, logos, buildings?‑‑‑Not necessarily. In fact it was quite confusing to us that over quite a period of time there were still Cradle Mountain signs on gates, there were still Ben Lomond signs on gates and very few TasWater signs, so it was quite confusing this far in that region still remained and it was a talking point amongst the employees inasmuch as when the Tas network structure changed, those badges and everything were changed within two weeks. As far as I'm aware, that's still going on within this organisation as we speak.

PN242

It can't be done overnight?‑‑‑It definitely it hasn't been in this case.

PN243

But it's in the process and no one's under any illusions that a business which no longer exists called Cradle Mountain still exists, are they?‑‑‑Well they've still got the signs on their gates as far as I'm aware.

PN244

Are you aware that the strategic theme in the TasWater Corporate Plan 2015-2017 is one TasWater?‑‑‑No, I'm not but I'll take your word for it.

PN245

You effectively talk about maintaining the same agreements, almost the rollover agreement, and that's an accurate term to talk about, isn't it, if what you're actually seeking today is a rollover agreement. I'm not using any industrial vernacular that's inconsistent with how we would ordinarily describe a rollover agreement, being a pay increase and everything else stays the same?‑‑‑Well, we're trying to have a - trying to go back so that we can resolve this issue and perhaps like we was at the very start and put to Ms Cathy Cuthbertson in November that we have a working group whilst this goes on, as a way forward.

PN246

If you even went back to those rollover agreements and going back - sorry, as you say, maintaining the existing agreements, the issues would be more than just those issues because you had 22 priority items on 1 December, which actually aren't contained in any of those existing agreements. There would be still fights over dispute resolution and so forth, all of those other matters?‑‑‑I think that just strengthens our argument in terms of how hard it's been. If that was the case and we was actually arguing the three separate agreements again, the number of unions sitting at the table would now be a lot less and make it a lot easier in order to negotiate those agreements again.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN247

You previously advised that you understood the good faith bargaining requirements under the Act?‑‑‑Yes, to the best of my ability.

PN248

One of the obligations of that is disclosing relevant information?‑‑‑Yes.

PN249

That providing relevant information would also extend to providing costings for your proposals?‑‑‑Providing costings.

PN250

Yes, so you put a proposal, the obligation on you would be to cost that out as to what that cost to the organisation would be if they were to accept your claim?‑‑‑I've never heard of that before.

PN251

I put it to you that it would be a requirement in - sorry, Mr Ash wanted to say something.

PN252

MR ASH: Sorry, I apologise, your Honour, I just am not following, that's all.

PN253

THE DEPUTY PRESIDENT: Yes, continue.

PN254

MR DILGER: If you put a proposal to TasWater to persuade them in how that would be achievable, the ordinary course of bargaining you would say is that will in your bargaining parameters be affordable, and you'd demonstrate why that was achievable or not?‑‑‑I don't think I'd be able to do that. I wouldn't have access to their income, I wouldn't have access to their books, I wouldn't have access to any of the information privy wherein I would be able to do that I wouldn't think.

PN255

When you then assert later on that it's affordable and no one else can work out - you don't actually know what's affordable or not, do you?‑‑‑No, the company would - - -

PN256

That's all - you don't know, Mr Lambert?‑‑‑No.

PN257

Thank you. You have identified that you were aware the maximum costs weren't to exceed 3 per cent?‑‑‑That's correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN258

Wages, in particular, are one of the most significant aspects of enterprise bargaining because; a) it's the back page that everyone looks at, and b) all your allowances and everything flows from the wages outcome generally?‑‑‑Correction. My understanding was the board is given a direction that it's not to exceed 3 per cent, I'm not sure that the company couldn't afford the 3 per cent.

PN259

But you don't know, Mr Lambert - - -?‑‑‑No, precisely. I don't know.

PN260

- - - because you said you have no idea about costings or anything?‑‑‑All I know is it was a direction. I've been told it was a direction of the board. As to the costings, no, I have no idea.

PN261

Without a specific understanding - let me go back, because you didn't answer that question. I said wages are one of the most important and significant aspects of enterprise bargaining?‑‑‑It would depend upon the individual. To me personally they're not. It would be wages and conditions in my view but some people would look at wages, yes.

PN262

But wages in an economic circumstance determine how other things like allowances and loadings and all that are determined?‑‑‑Yes.

PN263

You have to have an understanding to actually work out whether something is affordable or not, in regard to those wages?‑‑‑Yes.

PN264

In fact, without the wages and understanding of wages, you couldn't cost an enterprise agreement, could you?‑‑‑No.

PN265

You've never provided your wages claim until way into December 2014?‑‑‑I'm not sure. I'm not sure.

PN266

If there's an alternative date when you think you provided it but I know one of Lee C's recommendations on 18 July was that you were to provide your wages claim as your detailed log?‑‑‑Yes, look, in regards to that from the very start it's been very confusing and I know that at many of the meetings that we've had, TasWater has repeatedly asked us to provide a log of claims. And we have repeatedly provided a log of claims that was significantly ignored or not acknowledge by the company. So as to where that was at at the end, I've got to be honest and say I don't know where it was at because every time we put it forward, it was ignored and not acknowledged from the company as a log of claims. Whether the costing was in that, I'm unsure at this point in time.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN267

Lee C must have thought it was important. He requested you provide it updated and 18 July, he must have thought it was a part of good faith bargaining to be - it's in his recommendations, do you want to read them?‑‑‑I can't - I can't - if it's Lee C's recommendations, it's Lee C's recommendations. I can't speak for Lee C.

PN268

Your organisation as a default bargaining representative would have become aware of the commencement of bargaining about February 2014. That's when the (indistinct) was first issued?‑‑‑Correct.

PN269

Yet you were unable to meet TasWater until Monday, 7 April 2014?‑‑‑Yes, I am unsure of the reason why. I know there was a number of approaches at the time but whose fault as to why we didn't meet either side, I don't know. I know there was discussions prior to that, in fact if I go back once again to November 4, I think it was with Ms Cuthbertson, where there was talk about it. As to why we did or didn't meet at that time, I'm unsure.

PN270

I'll tell you who was at fault, in fact if you go to TW2, Matt Johnson from the CPSU basically says the unions won't be in a position. So I'm glad you pointed out that you'd had discussions with Ms Cuthbertson in November 2013 but in fact it's the unions who couldn't get their act together and meet until 7 April 2014?‑‑‑I'm unsure if that's the case and I'm also unsure whether the company was accepting of that at the time or not.

PN271

I'll just read it out to you:

PN272

Hi Alex, having heard back from most of the other unions involved, we will not be in a position to meet with TasWater until the week commencing Monday, 7 April.

PN273

Seems fairly clear to me?‑‑‑I think it would also demonstrate how hard it is with all the unions as well and how hard probably the start of - how hard we found it.

PN274

You chose to be an SBU. TasWater didn't force you to be in any SBU?‑‑‑Yes, we chose to be an SBU in order to try and streamline the process. I think it's been difficult enough and proving to be difficult enough without all going to the table as it's started to be. This was new ground for all of us, I think we need to say this was new ground, this is the first time for myself as an organiser that I've been in the room with seven unions. So it was a case of suck it and see, I guess, to see how we go.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN275

It was new ground for you, Mr Lambert, but it's not new ground for this organisation. We've already established you weren't there but your organisation had been involved. I was there at the time, Mr Bells was there at the time. There will be evidence from Mr Bells, he talks about it, they were all in there. There's no difference between that situation in 2009 and the current situation you're in at all?‑‑‑well perhaps the difference might have been the wages conditions that could have been won and lost throughout that process, I don't know.

PN276

I think you earlier said, Mr Lambert, we talked about the difference between harder - hard and harder bargaining and you accepted that you probably bargained harder on this occasion than they might have way back in 2009?‑‑‑I don't know. I can't speak to that.

PN277

THE DEPUTY PRESIDENT: Mr Dilger, in the next 10 minutes we will break for a mid-morning break. You chose the time.

PN278

MR DILGER: Thanks, your Honour. Maybe if you're happy now, I'm happy to break now, your Honour, that's fine.

PN279

THE DEPUTY PRESIDENT: Yes, we'll break for about 10 minutes.

SHORT ADJOURNMENT [11.24 AM]

RESUMED [11.40 AM]

PN280

THE DEPUTY PRESIDENT: Mr Dilger.

PN281

MR DILGER: Thank you, your Honour.

PN282

Mr Lambert, I direct you to your statement and specifically to paragraph 19. That’s where you’re talking about discussions with Cathy Cuthbertson that you had with Trevor Gould and yourself; specifically, you actually state on the sheet 4 of your statement up the top, it said: “We advised that unless those issues were dealt with effectively a single agreement would not be able to be negotiated.” So you originally talked about having a single agreement but leaving your options open if things couldn’t be dealt with. Is that correct?‑‑‑Yes.

PN283

Yes. The fact is despite telling Ms Cuthbertson that on 1 November 2013, you actually didn’t ever raise that particular issue, that it couldn’t be negotiated by a single scope until 17 December 2014, over a year later. That was the next time you raised the three regional agreement scope; in the meeting on 17 December 2014?‑‑‑I don’t believe that would be the case, where it wasn’t mentioned verbally at one of the meetings; on writing, yes, probably.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN284

Okay. In fact, when you have a look at what was in writing - we’ve been over this before but I think it’s important to talk again: we looked at TW70, and in particular, if you get that out again, TW70 - that’s the joint union draft, November 2014, delivered at a meeting of the SVU on 5 February 2015 but also the earlier version was presented at 4 December and amended again on the 8^th. You’re actually seeking a single scope in that document, aren’t you, Mr Lambert?‑‑‑At that point in time, I guess we was.

PN285

No, in three points of time you were doing that, Mr Lambert: 4 December, 8 December and 5 February and in fact the only time you ever mentioned in your statement about that regional scope was 1 November 2013. Then you mention it again on 17 December when you issue your notice of concerns. But the reality is, Mr Lambert, you just don’t mention regional scope until that time?‑‑‑Yes.

PN286

Thank you. On 9 April 2014, you attended a logistics meeting. It’s in TWO3. Do you want to have a look at it or do you agree with that? I make nothing further of it than just you attended a logistics meeting?‑‑‑Yes, it appears I did.

PN287

Yes. Then on 7 May during the bargaining meeting the SBU presents a summary log - sorry, Tas Water produces a summary log of claims plus a full log of claims in the form of a draft agreement?‑‑‑Yes.

PN288

Okay, and consistent with the notice of employee representational rights delivered on 26 February 2014 the scope of both that summary log of claims by Tas Water plus the draft agreement was for a single, state-wide scope. That’s what Tas Water were agitating for?‑‑‑At Tas Water’s request, yes.

PN289

Yes. Okay, now, at that meeting on the 7^th you were presented with a set of behavioural guidelines and I’ll take you to IN - that’s Ian Nelson - 04; that’s in the second book, Mr Lambert and your Honour.

PN290

THE DEPUTY PRESIDENT: What number again, Mr Dilger?

PN291

MR DILGER: IN04.

PN292

THE DEPUTY PRESIDENT: Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN293

MR DILGER: The title is, “Negotiating process: guidelines for participants.” I’ll take you first to the objective and on the last sentence of the paragraph it says, “It is also to insure that negotiations are conducted in a professional, productive and safe environment where all participants feel free to express their views without fear, intimidation or ridicule”?‑‑‑Yes.

PN294

I’ll take you down to the guidelines for participants and that’s the third bolded heading and there’s a series of dot points. I’ll take you through to dot point three, it says, “Make your point without shouting or using expletives”?‑‑‑Yes.

PN295

Point number five says, “Don’t make personal comments or attacks on other meeting participants,” and the last one says, “If committee members do not understand an issue then they should seek further clarification either at the time or afterwards when the meeting has closed prior to reporting back to their respective groups”?‑‑‑Yes.

PN296

In fact, earlier your evidence demonstrated that you agreed that all of that was necessary for a safe workplace?‑‑‑Yes.

PN297

Yet you rejected those sets of behavioural guidelines?‑‑‑No, I reject that.

PN298

Okay. The SBU said they would not adopt the behavioural guidelines, that they were bound only by the good faith bargaining obligations in the Act?‑‑‑I’m not familiar with that statement.

PN299

Okay. Now, taking your vast history of enterprise agreement negotiation, you have a preference for including policy and related matters into enterprise agreements rather than having a skinny, terms-only agreement?‑‑‑On the basis that policies can be changed at any time and we have limited recourse into company’s actions.

PN300

The reason why you prefer a consolidated agreement is to insure that matters of dispute can be agitated under the terms of the enterprise agreement?‑‑‑And people can have decisions independently arbitrated so we can achieve a fair and just outcome, yes.

PN301

You think that’s a significant benefit to members of your organisation?‑‑‑I think everybody should have the right to an independent judgement where needed, yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN302

Okay. So on that meeting on 7 May, you presented your log of claims to Tas Water and that was a summary log of claims and if you go to TW05, it’s where that occurred, in that meeting. The purpose of the log of claims is to provide the parties with an understanding on what you’re actually seeking, isn’t it?‑‑‑That’s correct.

PN303

Excuse me for a minute. Sorry, my apologies, Mr Lambert: IN05. Sorry, your Honour.

PN304

THE DEPUTY PRESIDENT: IN05, right?

PN305

MR DILGER: My apologies. So just to go back to that question: the idea of the log of claims is to seek to understand what the other party is actually trying to achieve?‑‑‑Yes.

PN306

So an incomplete log of claims would be likely to cause inefficiencies in bargaining?‑‑‑Well, for a start I’m happy that the company has acknowledged that in May we did present one because that wasn’t previously acknowledged and that goes back to my point early on, where although we did raise it it didn’t seem to be acknowledged by the company.

PN307

Well, I think you will find that they didn’t acknowledge it; they said, “You presented a log of claims but it was incomplete and unsatisfactory to continuing bargaining”?‑‑‑Well, that might have been the company’s opinion, yes. I can’t speak for the company.

PN308

Okay. Now, when you presented that log of claims, there’s no wage claim in there, is there?‑‑‑No, I guess we was looking to bargain in good faith, find out where we came. It was something we put on the table and was always we put on dot point two, we was prepared to support the proposition of the company providing different regions wasn’t outweighed through their lack of numbers. It’s clearly laid out there in dot point two.

PN309

Now, I’ll come to that in a sec but the understanding was, when you presented that initial log of claims, that you would further consolidate it so that Tas Water could actually understand what you were fully bargaining for?‑‑‑I guess in regards to the log of claims, that goes back to dot point one. In answer to your question about no monetary thing put on, it goes back to dot point one, where there was, “Maintain current conditions,” and we was prepared to negotiate a suitable - realising there was a disparity in all the regions, we were going to negotiate that on a package basis, should we be able to get across the line on a lot of this stuff.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN310

Mr Lambert, you’ve previously given evidence today about how important a wage claim is and how it’s important that it enable costing for the other side. You’ve now agreed that this log doesn’t have that wage claim. Are you still contending before his Honour today that this was a consolidated claim that did not need further amendment, discussion, inclusion?‑‑‑Well, I can’t hide the fact that there was no mention of any money there but I think it also highlighted the fact that - how important it was to the three regions to maintain what they had. That was obviously the priority here and all we’ve put forward there was what our members have asked us to put forward. So I guess money wasn’t the priority in their eyes at that time.

PN311

Okay. The simple fact is it’s not complete and the SBU were not organised at that stage to provide Tas Water with a complete log of claims?‑‑‑I really don’t know how to answer the question. It is what it is. I don’t recall the company asking us for a monetary thing either.

PN312

Okay, well, I’ll get to that in a minute because they ask you on a number of occasions; in fact, it is one of the orders sought in the good faith bargaining application heard before Commissioner Lee on 18 July 2014 but I’ll come to that in a sec. So you actually in your claim - we talked about this earlier and there are the words - you’re actually seeking the best clauses and conditions from each section of the three current agreements and have them included in a combined agreement?‑‑‑If possible, yes.

PN313

Okay?‑‑‑That was amended down the track.

PN314

Okay. So under no illusions - no-one’s talking about a three-regional scope at this stage, are they?‑‑‑No.

PN315

No, and in fact, can I summarise that by saying that strategy of bargaining, what you’re seeking, was known as the best of the best?‑‑‑Yes.

PN316

Okay. The best of the best can sometimes be a question of quantum; sometimes it can be a question of terminology and sometimes it can be a question of both?‑‑‑Well, it’s very hard. Your line of questioning is very hard; we keep bringing it back to terms and conditions when our application is a scope order and the reason is how hard it is to be efficient bargaining in that. So I’m answering your questions in terms of wages and conditions. But having said that, it doesn’t take away from the fact how hard this agreement has been to negotiate on so many levels.

PN317

Okay?‑‑‑I can only answer your questions in regards to wages and conditions when you keep firing wages and conditions questions at me.

PN318

Okay. There’s no obligation on any party to insure they increase terms and conditions every time they bargain, is there?‑‑‑No, there’s not.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN319

Bargaining is a process of give and take?‑‑‑That is correct.

PN320

During bargaining, the SBU never actually formulated a document and gave it to Tas Water, which said, “Here is the best of the best”?‑‑‑I believe we did.

PN321

When was that?‑‑‑I’m unsure of the date but I think we did have a document made up at the very start of the negotiations. We brought a document to the initial meeting. I can’t - I haven’t got that here but I testify to that. Tas Water brought a document around the same time and our document was fundamentally ignored.

PN322

Okay. You’re not referring to the document on 3 June, I think it is? Let me find it and I’ll see if - I’ll come back to that, your Honour, on that particular issue. I’ll just let Ms Clarke see if she can find it. Let’s see. That’s it.

PN323

THE DEPUTY PRESIDENT: Somewhere I recall there’s a 57-page document.

PN324

MR DILGER: I think it’s IN10. I think that will be - - -

PN325

MR ASH: Paragraph 38 in his statement.

PN326

MR DILGER: Yes. IN10, so that’s the document you’re looking for there, Mr Lambert; the 3 June version by Luke Crowley?‑‑‑I guess so. Yes, I believe that was the document were we had gone through and the company - I believe at the company’s request that we put the best of the best, as we termed them, into a document. I believe that’s what we did.

PN327

Okay. During bargaining, up until 17 December 2014, your bargaining strategy was the best of the best?‑‑‑Yes, I believe so.

PN328

Then on 17 December 2014 your bargaining strategy became no reduction in terms and conditions?‑‑‑Well, was that after the vote?

PN329

No, the vote was in November?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN330

17 December was the meeting where you provided your notice of concerns for a scope order at Campbelltown?‑‑‑I’m trying to answer your questions with accuracy, given the period of time that - it was about that time we was doing a round of state-wide meetings, seeking - because of the impasse after the vote - seeking a way forward and the direction that we got from our members was at the time, “We just don’t want to lose anything,” and that’s when we came back to the table and said, “Look, as a way forward our members have instructed us on this so it’s about time we changed that direction in order to try and reach some resolution to this.”

PN331

But at - as late as 8 December, which we’ve already established - and that’s that the document which I’ve referred to multiple times now that was presented on 4 December, re-amended on 8 December and represented by Mr Ash on 5 February, which has the single scope, that was given as your position of your members. IN fact, as far as we get to on 5 February the position of your members that’s before a proposal for Tas Water to accept in writing - I accept there’s been other meetings - is a single-scope agreement with the best of the best?‑‑‑I guess so, in line with the terms and conditions that we’re talking about. Once again I note your questions are all about the best of the best and the clauses but not the difficulty that we’re having in regards to reaching an agreement and the scope problems we have with the other unions that were starting to appear at that time. It was about that time that the other unions, to be blunt, were starting to get over it because they’d had a vote, there was no movement from any side at that time. We had different unions who represented different demographics. I cite the CFMEU just represents Ben Lomond Water. The AWU represents the south and at that time they was fighting for specific and wasn’t interested in the other clauses. This is where it’s starting to get really, really hard.

PN332

So it takes you 45 meetings to achieve three regional agreements in 2009. It takes you 20 meetings and the SBU have got jack of it halfway?‑‑‑I guess frustrated would be a word that was used. But I also come back to the point - once again, it brings me back to terms and conditions - but I also come back to the point that what happened in 2009, perhaps the conditions weren’t taken off them and they wasn’t going to lose the scale that they appear to be in this agreement.

PN333

So your words, Mr Lambert; it’s about what they were going to lose, isn’t it? It’s about the outcome?‑‑‑Your line of questioning is making me talk about wages and conditions and not the scope order, yes.

PN334

Okay. But you actually sought more than just the best of the best during negotiations?‑‑‑In what way?

*** TODD EDWIN LAMBERT XXN MR DILGER

PN335

Well, say this: you actually sought more than best of the best and you sought more than no reductions because - I’m going to take you to IN28. IN28, your Honour; there’s a table that Mr Nelson is going to attest to but I’m just going to guide you through how you actually sought - you claim you just sought best of the best but it was a lot more than that because the consultation clause, there is no current regional agreement which has a term of requiring consultation to occur when a preliminary decision has been made. Mr Lambert, are you aware of any regional agreement that actually requires consultation to occur when a preliminary decision has been made?‑‑‑I’m unsure, to be honest; I don’t know how to answer the question.

PN336

Well, it’s a very simple question: there are three current regional agreements. You’re seeking to have them retained?‑‑‑Yes.

PN337

Do any of them require consultation to occur when a preliminary decision has been made or, to give you some clarity, I say they all require consultation when a definite decision has been made?‑‑‑Well, that’s different wording there, I guess, if that’s the case. I haven’t got the consultation clauses in front of me so I can’t answer that.

PN338

But let’s talk again about your experience in bargaining. It’s consultation - a consultation clause is where the unions get to get involved at the earliest possible stage before change occurs; that’s the intent of a consultation clause?‑‑‑That would be correct.

PN339

Yes. So in a comparison, when do you want to get involved; when a preliminary decision is made or when a definite decision is made?‑‑‑I guess preliminary would be the earliest opportunity where you would like to get involved, would be a common sense answer.

PN340

Exactly, and preliminary decision is in none of the existing enterprise agreements; they all take about definite decision. So you would have to concede that’s in excess of best of the best and it’s also in excess of no loss of conditions?‑‑‑Yes, I’m unsure, to be honest. I don’t know how to answer that question. If it’s in there it’s in there. I guess when we put forward our document it was in there. I don’t know. If it’s in there it’s in there; you’re correct.

PN341

It’s a claim you sought, okay?‑‑‑Yes.

PN342

Okay. The right to request flexible work arrangements; that’s also something above and over best of the best and more than the reduction of terms. It doesn’t exist in the current enterprise agreements either, does it?‑‑‑I’m unsure.

PN343

Okay?‑‑‑That document, though, from memory, was to incorporate the best of the best and originally with some claims and amendments, I guess. I’m really unsure how to answer the question. If it’s in there it’s in there. I can’t deny that.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN344

My point is, Mr Lambert, that your strategy was best of the best and you’ve conceded it then changed - - -?‑‑‑Yes.

PN345

- - to being no loss of conditions. Then it reverted back on 5 February 2015 to best of the best with a document which is confusingly notated as, “Joint union submission November.” I say all along you weren’t bargaining for either; in fact, you were bargaining like all parties normally do. You actually wanted to achieve more and that’s the reason why you’re here today. You’re not happy with the gains you’ve made in bargaining?‑‑‑No, I reject that.

PN346

You are happy with the gains you’ve made in bargaining?‑‑‑No, well, the vote would reflect that nobody was happy with the gains that were made in bargaining. We’re here today to demonstrate the difficulty of it in trying to get one agreement and it’s not because it’s a wages and conditions thing; it’s a way of moving forward where our members, yes, to one degree and following your line of questioning don’t lose wages and conditions but more importantly we can’t honestly put an agreement out as it stands at the moment to our members that the demographics are so different. The whole politics involved in this whole negotiation; it is very hard. It is just very, very hard and we’re struggling to find a way forward on every level: terms and conditions, demographics, the unions; everything.

PN347

Okay. Casual conversion was something that was over and above the best of the best. That doesn’t exist in the existing EAs, does it?‑‑‑If it’s not there, once again, I’ll take your word for it.

PN348

Okay. Employee termination: previously the EA has followed the NES. Now you’ve got two weeks. That’s all the employees have to achieve. That’s what you’re bargaining for?‑‑‑I guess so.

PN349

Yes. The inclusion of procedural requirements for an employer-initiated termination: that’s not in the current EAs. That’s not something you’re currently claiming?‑‑‑Yes, but once again the document, to my understanding, was - the original document was best of the best and our log of claims were incorporated into that.

PN350

Yes?‑‑‑So if that’s the case that’s what’s clearly showing up here.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN351

Your log of claims - and you gave evidence earlier - was best of the best. I’m just demonstrating that was an incorrect statement, Mr Lambert. I’m demonstrating that what you’ve actually done is not only sought best of the best, you’ve also sought no terms and conditions and you’ve also bargained very, very hard on a number of extension claims beyond the best of the best and beyond no loss of terms and conditions?‑‑‑I fail to understand your point. I mean, the document that we put forward was the document. We’re trying to zoom in on the best of the best but the document was there for everybody to see. As for the intent of it, it was there. It was written there in black and white. I fail to understand where this is going when the Tas Water could clearly see what the document was.

PN352

No, I can see exactly what it was; it demonstrates quite clearly that you sought more than just the best of the best; you sought more than the no loss of conditions. You’re seeking to achieve a lot out of this negotiation, aren’t you?‑‑‑At this point in time we’re negotiating. Everything is on the table.

PN353

Everything is one the table? Hang on, you said previously, “All we want is a roll-over agreement. We want to keep everything the same.” Is that right?‑‑‑We’ve all acknowledged that there has been a shift in the negotiations since it started from best of the best to not lose anything - - -

PN354

Back to best of the best on 5 February?‑‑‑Well, if you say so, yes; I’m not sure.

PN355

You’ve previously accepted that that occurred with that document, that that was the best of the best?‑‑‑The first one?

PN356

No. It’s confusing, isn’t it?‑‑‑Well, I’m at a bit of a loss at the moment. I thought our position has been quite clear the whole way through where we’ve followed it. The vote itself has dictated to what’s been accepted and what hasn’t.

PN357

Okay. The inclusion of uncapped redundancy; no-one has got uncapped redundancy in their current EAs, have they?‑‑‑Yes.

PN358

They have uncapped redundancies, have they?‑‑‑Ben Lomond Water does.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN359

I thought Ben Lomond water was 72 - sorry, Ben Lomond and Cradle Mountain Water is only 60; Southern Water has 72?‑‑‑Sorry, yes; I misunderstood. That once again was a bargaining thing we’ve put in for the 2.8 per cent our members are being asked to give up a clause that basically gives them job security for the life of the agreement. Our members have indicated to us and once again in an effort to move forward with it we’ve put forward to the company that a proposition - because it was, to be honest, no employee in their right mind, we thought, would vote for 2.8 per cent and remove a clause that they already had, which once again highlights to us the difference in the demographics that prevail. We put forward to the company that perhaps that was a way forward in which we could facilitate and help the company with this agreement and they rejected that outright.

PN360

That’s got nothing to do with demographics, Mr Lambert; that’s everybody getting the same entitlement. That’s what you want, isn’t it? You want everybody working for Tas Water to get uncapped redundancy?‑‑‑As a trade-off for the other - - -

PN361

Don’t worry about the trade-off?‑‑‑ - - no, I’d like to answer the question - as terms to what the Ben Lomond people could get voted over by the other two regions could lose should an agreement get up, they would lose a clause that fundamentally protects their rights at work. That could get voted over at any time through Cradle Mountain and Southern Water and as a way forward, to try and reach an agreement, we put that proposal to the table. But I think that highlights the fact of why a scope order is necessary because these two regions could override that and that is a very important clause for 2.8 per cent and nobody in their right mind - I’ve got to be honest - at Ben Lomond would vote 2.8 per cent to lose that clause. Under the current situation that could quite well happen.

PN362

It was a simple question, I’ll just ask you again: no-one currently gets uncapped redundancy in the enterprise agreements and you are seeking to achieve uncapped redundancy for your members state-wide?

PN363

MR ASH: The question has been answer, your Honour.

PN364

THE DEPUTY PRESIDENT: Well, it has but I’ll allow the question in the precise terms that it’s been put forward by Mr Dilger. The elaboration is already on the record?‑‑‑Well, that’s correct, Mr Dilger, but as I also highlighted there was a reason why we did put that forward; because of the loss of the other region.

PN365

MR DILGER: Abandonment of employment currently exists in the current enterprise agreements for two days and you have actually claimed you want five days before abandonment of employment actually kicks in?‑‑‑If that’s written there, yes, that would be correct.

PN366

Yes. Junior rates - in the current agreement junior rates only go up to 17, 18 and 19-year-olds. You’re actually seeking - sorry. The junior rates currently go to 17, 18 and 20-year-olds. Your claim is they only go up to 17, 18 and 19-year-olds so that they become an adult at 20 and get the adult rates?‑‑‑I guess so and I’m not sure but I thought we had actually reached agreement on that one, on that clause. I thought we had actually reached agreement.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN367

Yes. It’s a significant win for people at 20, though, to get adult wages?‑‑‑Well, since they’re paying full tax at 18, I guess so.

PN368

Sorry, Mr Ash?

PN369

THE DEPUTY PRESIDENT: Mr Ash, you want to make a point?

PN370

MR ASH: I just said under my breath, “They should get them at 18.” That was all, your Honour.

PN371

THE DEPUTY PRESIDENT: Sure, yes?‑‑‑To that point, as I reiterate, an 18-year-old pays full tax at 18 so I guess that’s fair and reasonable.

PN372

MR DILGER: You also sought the extension of the handling sewer matter to all categories of employments, didn’t you?‑‑‑I guess so, yes.

PN373

That doesn’t exist in the current EAs; it only applies to operational and trades employees, doesn’t it?‑‑‑I guess so.

PN374

Yes?‑‑‑Isn’t this the path of negotiations, where things go on the table, the same as the company does, and you tick them off and knock them off and you try and negotiate around it to reach - - -

PN375

So you would agree this is the ordinary course of negotiations, Mr Lambert?‑‑‑I won’t say anything about these negotiations being ordinary, Mr Dilger, but at the moment, what’s written in that document, I can’t refute. If it was written in that document and you go through it with me, that’s correct.

PN376

You were talking about it before, Mr Lambert, before you checked yourself; in fact you said, “This is how it goes, give and take.” It was a simple question: this is what happens in every enterprise agreement negotiations; the putting of claims, rejecting of claims, considering of claims. Some you like, some you don’t. It’s all about a package?‑‑‑I just don’t understand, to be honest, the line of questioning. If it’s written there that is correct and I can keep saying, “That is correct,” all the way through. I’m not going to deny what your line of questioning is. If it’s there it’s there.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN377

Here was my last question, I’ll repeat that one again: you introduced, you said it - you said, “This is now bargaining goes; this is what happens. You put some proposals, take some proposals.” I’m saying it’s absolutely just the ordinary course of bargaining, isn’t it?‑‑‑Well, what’s in that document, I guess it is.

PN378

Thank you?‑‑‑To be honest, I don’t understand the line of questioning but yes, if that’s the case.

PN379

You said in paragraph 54 of your statement that you would see a reduction in pay for employees covered by Southern Water and Ben Lomond agreements but you haven’t’ actually provided any modelling or costings to Tas Water to demonstrate that, have you? It’s just an assertion?‑‑‑Well, yes, but I guess on the flipside of that as I highlighted earlier the CEO and his managers have been unable to do that too; actually highlight to them where they would maintain their wages and conditions or not lose when they’ve been asked by their employees out in the field at least two occasions.

PN380

Now, the evidence of Tas Water is they told you what matters couldn’t be afforded. They told you that overall, it had to be assessed as a package and that overall, it couldn’t extend beyond the three per cent total on costs. That’s what they told you, didn’t they?‑‑‑They might have. Just - they’re working to this now. The longer this goes on, they’re still working to the three regions now, are they not? I’m sorry, I’m not allowed to ask questions. I’m sorry. I’ll just - yes.

PN381

You’ve also sought a $600-per-week quantum for on-call allowance. Now, the current highest on-call allowance per week is $350 per week. The Southern region is only $282. That’s a very significant extension and claim; almost double?‑‑‑On the flipside, should Tas Water’s merger be complete, the guys in the south, for instance, I think would lose $240. There was a figure that was put forward to once again see nobody go backwards.

PN382

Okay - which Tas Water refuted, that there would be ebbs and flows. Some people would miss out, some people wouldn’t but it depended on how the rostering and the calls were actually required. That’s the really correct interpretation, isn’t it?‑‑‑Once again, we keep talking wages and conditions but yes, every area stands to lose something. At the moment of significance it doesn’t stack up against the 2.8 per cent that’s on offer at the table that’s happening. To get back, when you’re saying - I was thinking about this afterwards, about how we never put any money on the table. I’m not sure - I believe at the time the company was quite clear with the quantum of money they was going to put out anyway. So I guess it wasn’t an issue because it was raised by the company early on that this was the money they could afford. This was what they was going to put forward. We just accepted that.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN383

Now, you also sought an ability for payment in lieu of annual leave and that’s not in the current, existing agreements, is it?‑‑‑Payment in lieu of annual leave?

PN384

Yes?‑‑‑I’m not sure, Mr Dilger. Excuse me, your Honour; may I seek leave for a second to go to the toilet? I’m really busting.

PN385

THE DEPUTY PRESIDENT: Yes, we’ll have a brief adjournment?‑‑‑Thank you, sir.

SHORT ADJOURNMENT [12.22 PM]

RESUMED [12.25 PM]

PN386

MR DILGER: Thank you, your Honour.

PN387

(To witness) You also sought the inclusion of significant relationships into the compassionate leave entitlement. That’s something over the above the existing three agreements?‑‑‑Once again, if it’s written there you’re correct.

PN388

Maybe I’ll just say this: everything that’s written there, Mr Lambert, is actually an additional claim you have made in the course of bargaining?‑‑‑And would have been accepted or rejected by the company accordingly throughout that process.

PN389

All of those aren’t in the existing agreements?‑‑‑I guess not, if that’s what you say. I’m answering the questions to the best of my ability, Mr Dilger.

PN390

I appreciate that?‑‑‑I’m not trying to be deceptive.

PN391

Tas Water’s single state-wide scope that it’s seeking and you’ve supported from 7 May to 17 December when you rejected it, when you made the scope application but then went back and supported as of 5 February, it utilises the Mercer job score system to differentiate between the levels of the senior employees?‑‑‑Yes.

PN392

Your organisation particularly doesn’t like Mercer, for a whole range of reasons?‑‑‑Number one in my case, I can’t understand it.

PN393

Yes. But historically it’s actually formed part of the three, current regional EAs. Mercer is in there; it’s entrenched?‑‑‑Yes, if you say so.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN394

But during the meetings the SBU said to Tas Water in summary, “We don’t like Mercer and we want that to be something the subject of bargaining. We want Mercer out”?‑‑‑Yes, it’s been mentioned that we wasn’t happy and there was reasons behind that. Once again, it goes back to preliminary discussions we had earlier that there is no recourse for any arbitration under that system where someone can actually contest anything. That is basically the company’s discretion.

PN395

Okay, but when you’re having those arguments over Mercer, you’re not actually saying the three regional scopes are fairer, are you? You’re actually just criticising Mercer as part of the single, state-wide scope?‑‑‑There was criticism of Mercer, yes; there’s no denying that. I would like to pull up one point too that you keep referring to, that we are supporting a single, one-scope agreement. We was never supportive of it. We agreed to try and work with the company to do it. We’ve never - supportive is not a word that we would use of it. We was trying to assist through the negotiations. That was highlighted in the log of claims - - -

PN396

Mr Lambert, you’ve previously given evidence today. You’ve talked about - I will grant you that on 7 May it was an incomplete log and that you said things have to be sorted. But critically, when we get up to December you’re actually proposing documents, it’s presented to a bargaining meeting that actually set out and utilised a single scope. That wasn’t Tas Water’s document on 4 December. It wasn’t Tas Water’s document on 8 December and when Mr Ash represented it on 5 February 2015 it wasn’t their document either. You put a single scope into terms and conditions capable of being accepted by Tas Water?‑‑‑At Tas Water’s request - that was one of the aims of bargaining but that’s what they wanted; a one Tas Water agreement.

PN397

Well, there’s other things that Tas Water wanted. There’s other things that you wanted and you’ve been quite able and we talked about them; you particularised them. You changed words such as - you wanted, “preliminary decision.” You didn’t want, “definite decision.” You’ve asked for things about HSM. You put in you wanted $600 for the HSM per week. You’ve been able to express every single time you wanted a particular claim, Mr Lambert. You’ve been able to express it. The only time you mention three regional agreement scope is on 17 December 2014 - the only time. I asked you before, find somewhere where you did it; you said there probably isn’t any?‑‑‑Well, I said in writing. I maintain that in meetings it’s been mentioned; it’s been mentioned on numerous occasions. I can’t produce evidence because what’s in writing is in writing but I stand by the fact that it has been mentioned on numerous occasions throughout the bargaining process. Specifically I can’t say when but I know it has been mentioned.

PN398

But - - -?‑‑‑Excuse me: I think Mr Washington, when you talk to him, one who was very strongly advocating for that as well.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN399

Okay. But the SBU, who speaks on behalf of the parties, puts out documents where they don’t mention any of it and you’re expecting us to rely that somehow verbally people were talking about it and it should have been known when it’s in complete contrast to the written documents that you produce. That’s what you’re asking this Commission to accept?‑‑‑Well, I can only - I’m just sitting here under oath and I’ve got no proof. I can only tell you under oath what I believe to be the truth and that’s what I believe to be the truth.

PN400

Okay. I’ll take you to TW06. In that document on page 3 of 4, highlighted where Matt Johnson speaks, it says, “It was agreed that the logs of claims would be consolidated into a single document for discussion at the next bargaining meeting”?‑‑‑Sorry, what page was that?

PN401

Three of four?‑‑‑Three of six?

PN402

Sorry, three of six, sorry; down the bottom, Matt Johnson?‑‑‑Yes.

PN403

Yes?‑‑‑Yes.

PN404

THE DEPUTY PRESIDENT: I can’t see it, Mr Dilger. Where is Mr Johnson mentioned?

PN405

MR DILGER: Mr Johnson, then there’s a paragraph underneath it and it says, “It was agreed that the log of claims would be consolidated into a single document for discussion at the next bargaining meeting.”

PN406

THE DEPUTY PRESIDENT: Yes, no, hang on - page three of six?

PN407

MR DILGER: So it’s TWO5 - sorry, I’ve just been corrected; apologies. I must have said TW06. It’s TW05, near the item B there.

PN408

THE DEPUTY PRESIDENT: Yes, I’m with you now.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN409

MR DILGER: Okay, my apologies, your Honour. So again, we’re now at 23 May and you still haven’t provided a consolidated log of claims but you’ve agreed to at least update it?‑‑‑That is Tas Water’s minutes as opposed to our own minutes, that you would be aware, Mr Dilger, we had two sets going. I believe there was an email somewhere that we never agreed to accept each other’s minutes. Now, as to the validity of that, I’m not sure, because Tas Water had their own set of minutes. We had our own set of minutes which varied vastly to what each side saw of it, I must say.

PN410

Okay?‑‑‑So I can’t actually say that was a true and accurate account because they’re Tas Water’s minutes that we probably wouldn’t - - -

PN411

You’ve produced no conflicting minutes. You’ve had those documents for a long time now?‑‑‑Yes.

PN412

You’ve produced no alternate minutes which would contradict the accuracy of those?‑‑‑I’m not sure we even got sent those minutes, Mr Dilger, to be honest. Like I said, there was two lots of minutes from the meetings going out. Perhaps we did, perhaps we didn’t.

PN413

Mr Lambert, you’ve had - regardless of whether you have you’ve had that document for a number of months now, okay? If it was incorrect and you have a document that establishes that that document is incorrect you need to produce it. You haven’t got an alternate document which demonstrates that’s incorrect, have you?‑‑‑I’m unsure. I’m looking at these minutes. They’re unfamiliar to me.

PN414

Okay. Now, on 22 May you and Kevin Harkins had a discussions with Ms Garrott and talked about proposing small work groups. You sought her agreement to achieve that outcome during the bargaining meetings?‑‑‑You’re saying Mr Harkins and myself and Ms Garrott alone at a meeting?

PN415

Yes, it was a brief meeting prior to actually going in to the meeting. You had a discussion. It wasn’t a formal meeting. You just had a discussion and you said, “What about this: let’s have small meeting groups”?‑‑‑No, my understanding on that was Mr Harkins and Ms Garrott had a discussion and I wasn’t privy to that.

PN416

Okay?‑‑‑I’m not sure that I was included in that conversation, to be honest.

PN417

The long shot of it is that what actually happens at that meeting on 22 May is you decide, “Let’s go with the small meeting groups”?‑‑‑Give it a try, yes.

PN418

Yes, and those small negotiation groups, they weren’t based on any regional distinctions: you didn’t sent people south, north and north-west west, did you?‑‑‑No, we based it on - there was regional representatives at all those meetings.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN419

Yes?‑‑‑To be honest we was never comfortable with it but once again we tried to make a way forward to make it work because of the difficulties that were perceived at the time. There was different people sitting at the table. What we found very quickly was that there was different people giving undertakings and speaking for other unions which were not in that region or that demographic and that is why we really struggled with that concept after a short while.

PN420

But the content was basically on terms, wasn’t it; not based on regions? You were going to discuss a particular term topic: DSP, annual leave; those are the topics you broke in to?‑‑‑There were specific topics for specific groups but once again, where we believe it fell down was there was unions speaking on regions that they didn’t have coverage of.

PN421

But that’s what the content - when you set them up - - -?‑‑‑We didn’t set them up. The company proposed that.

PN422

- - okay. The discussion groups were based on broad topic areas on annual leave, DSP, redundancy; that’s how they were broken down?‑‑‑It was broken down under headings, from my memory, like mechanics. There was different headings at the time.

PN423

In those you discussed those specific terms?‑‑‑Yes, on different subjects. The agreement was covered by under different groups.

PN424

But not based on regions, so we didn’t break into south, north and north-west at all?‑‑‑No, but that’s where we encountered the problems, because there was people speaking for regions that didn’t actually represent those regions.

PN425

Okay. So on 22 May you’re encountering problems. You’re an experienced union organiser who understands the Act and you do nothing until 17 December 2014?‑‑‑Do nothing as in what concept?

PN426

Make an application to address the perceived inadequacy of what was going on?‑‑‑I think it was in line with trying to bargain in good faith and reach, you know - it was hard enough. We was conscious of being in front of the Commission every second week. We was trying to work through the issues that we had and we thought the company was agreeable to that same process.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN427

It was only a good-faith bargaining application on 18 July. That was only two months after so if you had any problems, Mr Lambert, there is nothing whatsoever in your good faith bargaining response which talks about three regional scopes, is there?‑‑‑I’m unsure.

PN428

It’s your document?‑‑‑Only two months is eight weeks. That’s quite a period of time.

PN429

Okay. But in the application you were responding to a good-faith bargaining breach. You made no counter-response which said to the effect that scope is a problem?‑‑‑At that time?

PN430

No, at that time?‑‑‑I’m unsure. If that’s what’s written, what’s written but I’m unsure.

PN431

Well, if you can point me in your response - because it’s in your statement - where - - -?‑‑‑In my statement?

PN432

- - in your statement you’ve attached your - - -

PN433

MR ASH: Reply statement.

PN434

MR DILGER: - - your reply statement?‑‑‑Yes.

PN435

If you can find where you’re talking about regional scope, Mr Lambert, point it out for the Commission, please. I can’t find it and I say there’s nothing in there whatsoever?‑‑‑If there’s nothing there there’s nothing there. I haven’t looked at it.

PN436

Is that what you can see?‑‑‑I guess so, if that’s the case. It’s a lot to read through; I don’t want to waste the Commissioner’s time by - - -

PN437

Well, the Commissioner can - his Honour can wait all day if you think it’s in there and you want to find it?‑‑‑No, I’ll take your word for it, Mr Dilger.

PN438

Thank you.

PN439

MR ASH: The matter addressed in the reply statement - I think it would be fair to take the witness to what he says in the reply statement in relation to that question and ask him whether or not he still agrees with it. I don’t think - Mr Dilger is probably aware of that paragraph anyway.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN440

MR DILGER: The question was quite clear, your Honour; I simply said in the application do they mention anything about regional scope?

PN441

THE DEPUTY PRESIDENT: I think it’s a fair question. If you want to take up something in re-examination, Mr Ash, that’s open to you.

PN442

THE DEPUTY PRESIDENT: Thank you, your Honour.

PN443

MR DILGER: Okay. On that 22 May meeting, you did actually agree to have discussions on scope in the meeting that took place the week after on 30 May. But I’ll say it didn’t relate to the scope you’re now pursuing; those meanings actually related to Mercer only. That’s all that was discussed in that 30 May meeting?‑‑‑Can I ask where that meeting was?

PN444

You’re unaware of any specific discussion from your organisation on three-regional-agreement scope?‑‑‑Only that I stand by that there was verbal discussion but I’ve got nothing in proof in writing, no, Mr Dilger.

PN445

Here is some written materials that you might be able to understand then. Go to TW67 and it’s actually the Professionals Australia scope order application. Now, that was made on 20 June 2014 and the issues that are actually of concern are actually related just to Mercer and the extension of scope to senior employees. In fact, Mr Crowley, who will give evidence later, talks about it and he actually sets out - if you have a look at the attachments there’s a letter from Professionals Australia on 23 April and it says, “We’d like to advise that Tas Water on behalf of the unions involved that the unions will be negotiating on behalf of all levels of employees with the exception of grade eight general managers, the CEO or department managers.” Nothing to do with regional scope there. There is some attachments between - - -

PN446

THE DEPUTY PRESIDENT: Do you want the witness to respond to that or not?

PN447

MR DILGER: Apologies.

PN448

THE DEPUTY PRESIDENT: Or is that a statement?

PN449

MR DILGER: No, I’ll rephrase that, your Honour: there is no discussion about regional scope in this application?‑‑‑I guess you’re correct, Mr Dilger.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN450

In fact, as a member of the SBU you would have been fully aware that Mr Crowley was off making this application?‑‑‑Yes, that’s correct.

PN451

Yet, despite your assertions earlier that orally there was agitation about that regional scope, when a scope order is actually before the Commission you’re not making any submissions whatsoever about three-regional-agreement scope?‑‑‑I guess at that point in time we were still hoping that we could make it work; the EA work. We were just hoping it would work, I guess.

PN452

It’s a bid odd, isn’t it, Mr Lambert, that a scope order that you’re now seeking today when you had the opportunity way back in June as part of an SBU, nothing from the CEPU regarding three-regional-agreement scope? You don’t find that odd?‑‑‑Your words, Mr Dilger.

PN453

So if you were worried about it, isn’t that the vehicle, where you agitate your claim?‑‑‑Mr Crowley had his own actions at that time. We were still trying to negotiate.

PN454

The reason why only Mr Crowley turned up because you didn’t actually have an issue with the three-regional-agreement scope, Mr Lambert; you supported the extension of a single, state-wide scope?‑‑‑We’ve never supported it. We’ve tried to assist the company in getting what they want through these negotiations.

PN455

Okay?‑‑‑You keep using the word, “supported,” Mr Dilger. We’ve never supported that. We’ve supported an agreement that would see our members not worse off. That’s what we’ve supported. It’s been unable to do that and that’s what I’ve tried to articulate.

PN456

On 23 May you wrote to Tas Water - and that’s in TW07 -confirming that the SBU were keen to insure negotiations were kept productive and manageable, timely and efficient and noting that it was vital where ever possible that all unions that were elected by their peers were all in one room together. I’ll just let you get to that document - TW07. In particular, go to the third paragraph, and you basically say there, “Productive, manageable” - you want to be all in the one room together?‑‑‑Yes, that’s correct.

PN457

So being in the one room all together is important for you in terms of fairness and efficiency, isn’t it?‑‑‑Yes, and I think that was proven after the disaster when we split up with all the - - -

*** TODD EDWIN LAMBERT XXN MR DILGER

PN458

It saves you having to repeat yourself?‑‑‑It actually has all the people in the one room to hear what’s going on.

PN459

Everyone gets to hear the same message at one time?‑‑‑That would be correct.

PN460

Yes. You’re an experienced negotiator. You’re capable of discussing and negotiating claims. In paragraph 22 of your statement - sorry, of your statement, Mr Lambert, not the - paragraph 22 of your statement?‑‑‑Yes, yes.

PN461

You’ve listed there six union delegates: Mr Proverbs, Mr Agar, Mr Dalziel, McCullough, Ong and Anderson?‑‑‑Yes.

PN462

My understanding is it’s two from the north, two from the north-west and two from the south?‑‑‑I believe there was one from the east coast but yes, the numbers would be correct, yes, and the regions, yes.

PN463

Okay. So you don’t have any concerns with the competency of those delegates being able to be involved in enterprise bargaining?‑‑‑No, they’ve been elected by their fellow employees to do that.

PN464

They’ve predominantly had a referral role during negotiations to you?‑‑‑A referral role?

PN465

They would get messages from their membership and talk to you?‑‑‑Yes, and speak on their concerns. I think it need to be established that organisers such as myself negotiate many agreements and we’re not always across the agreements to the extent that the employees that are familiar with them are. So therefore, we seek the three regional blokes who work under those agreements and those conditions to provide us feedback so that we can negotiate adequately and put forward their concerns at the time.

PN466

Okay. Until Commissioner Lee’s recommendations on 18 July 2014, which arose out of the good-faith-bargaining application, you actually had more than one delegate attending the meetings per region; at least two members of the north or two members of the south or two members of the north-west at any one time?‑‑‑At the company’s consent and their request, yes.

PN467

Yes, yes. That’s a considerable duplication of resources, isn’t it? So we’ve got you and two people from regions?‑‑‑Yes, but often are specific to the task they hold to within the organisation. They do do different jobs, a lot of the guys.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN468

So they couldn’t talk to each other and pass on information to each other? They had to be there?‑‑‑Well, it’s not for - they were the guys that were elected by their peers to come to the table so we put those names forward.

PN469

Okay.

PN470

THE DEPUTY PRESIDENT: We’ll go off the record for a moment, please.

OFF THE RECORD [12.50 PM]

LUNCHEON ADJOURNMENT [12.50 PM]

RESUMED [2.15 PM]

ON THE RECORD [2.15 PM]

PN471

THE DEPUTY PRESIDENT: Mr Dilger, just for the housekeeping, I propose to have a short break in the middle of the afternoon around about 3.30, Mr Dilger, if you are still going.

PN472

MR DILGER: Thank you. I imagine I will be, your Honour. The other housekeeping matters, subject to your assessment of them, your Honour, is that we will progress with Mr Lambert as far as we can go today. We will release Mr Crowley from any attendance today. We will release Mr Washington from attendance today. We will reconvene tomorrow at 10.30 to allow Mr Ash to attend his directions hearing and we should be commencing with Mr Washington. Mr Flanagan should be back from the west coast and we’ll progress with him immediately after Mr Washington.

PN473

We then - depending on how things are going - think we will have an early minute on Friday. That will then reconvene on Monday in your Honour’s hands - 10 o’clock - to commence with Mr Crowley. Mr Crowley will then be followed by Tas Water’s witnesses, Ms Garrot, Mr Nelson and Mr Bells. Mr Ash has indicated he only thinks about an hour and a half for each of those. We may finish by Monday night. But of course we have got the reserve day on Tuesday now and I think that’s probably the more accurate reflection of the timing, that we’ll actually finish on Tuesday and Mr Ash and I can submit closing submissions sometime Tuesday afternoon.

PN474

THE DEPUTY PRESIDENT: Yes. Mr Ash, do you concur with that?

PN475

MR ASH: I do, your Honour, yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN476

THE DEPUTY PRESIDENT: Well, that’s certainly suitable for us.

PN477

MR DILGER: Just as a matter of housekeeping, would it be appropriate now if we just take a break for Mr Ash to organise those witnesses and release those people, unless you have already done so?

PN478

MR ASH: I don’t think it’s necessary. The 3.30 adjournment will probably be sufficient anyway because Mr Washington knows that if he doesn’t hear from anyone by 4 it will be tomorrow and Mr Crowley I’ve already indicated will likely be Monday. So I’ll just confirm that with him in the break, that - he’s not waiting outside or anything, yes.

PN479

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Dilger.

PN480

MR DILGER: Thank you. The other part I just have to mention on the record, your Honour, mentioned to me by Mr Swanton, who was in the back of the room and who is a bargaining representative, I consistently referred to the SBU as the parties. That is incorrect; it is the union parties. The bargaining representatives are not members of the SBU. I think it was fairly clear from the discussions I was never referring to the bargaining representatives but Mr Swanton has asked me to correct that on transcript and I’m doing so for your benefit.

PN481

THE DEPUTY PRESIDENT: Thank you.

PN482

MR DILGER: Mr Lambert, we were dealing with TW07. Now, we talked about there - you talked about your needing to be all in the one room together. Then if you go on to the second page you say this: “The SBU are committed to working with the employer and the other parties to the negotiation of the agreement to insure the bargaining process is in accordance with the good faith bargaining, including but not limited to timing of meetings, regularity of meetings, the sharing of information and insuring the number of representatives will be kept to manageable numbers put forth, should this proposal be accepted.” That’s what you said?‑‑‑Yes.

PN483

But the good faith bargaining obligations don’t actually require any acceptance of either party to that suggestion, do they?‑‑‑Perhaps not.

PN484

No. In fact, the good faith bargaining obligations don’t require parties to concede any content or terms of any agreement, do they?‑‑‑I guess not.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN485

In fact, the Commission is unable to require without the consent of any parties a particular content in any part of an enterprise agreement?‑‑‑Could you explain that further, please?

PN486

So there is no provision in the Act, apart from allowing under section 255 where the parties consent to arbitration, there is no other provision which would enable this Commission to require any particular content into an enterprise agreement?‑‑‑I assume so. You are much more learned than me on this stuff.

PN487

Okay. So in that letter, just after you talked about, “Should this proposal be accepted,” you actually go on to say, “We look forward to a favourable formal response to this proposal by no later than Friday, 30 May.” That’s what you said?‑‑‑Yes.

PN488

Now, go to TW66A. It’s an email from yourself on 27 May and you say, notwithstanding your earlier letter on the 23^rd, which we were just looking at, you say, “Acknowledging that we had a response due on Friday 30^th” - you’ve already discussed it and you’ll be meeting in Campbell Town at 10 am, Thursday, 5 June?‑‑‑Yes.

PN489

That’s inconsistent with your first letter giving Tas Water the chance to respond to by 30 May?‑‑‑I’m not sure if I’m on the right time frame here but I believe there was correspondence back from Cathy. Whether it was this letter or - I’m not quite sure - wherein she said she never received the email and she said even though the email address was correct and she would review it. So I’m not sure if that was the bit of a misunderstanding between the two at that time or not.

PN490

There was no misunderstanding of Tas Water’s. The misunderstanding must be with you, Mr Lambert, because you actually identify that in that first paragraph: “Whilst acknowledging that Tas Water has undertaken to send a formal response by 30 May” - okay? So you’ve done that. You then on 27 May say, “Accordingly, the unions have discussed the meeting and determined that the SBU will be in attendance and ready to bargain on Thursday, 5 June.” You actually haven’t given Tas Water any opportunity. You’ve actually bargained against yourself, Mr Lambert; changed the goal posts, given a time frame of 30 June and then unilaterally come in on 27 June and said, “We’ve determined this is when the meeting will occur”?‑‑‑Yes, I’m not - it says what it says. I’m not familiar with the circumstances surrounding that. I think there was a bit of toing and froing going on with both parties behind the scenes in regards to that but that’s what it says, yes.

PN491

Okay. You chose Campbell Town as a central location?‑‑‑That’s correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN492

You chose that because you thought it would be fair for everyone and a more efficient use of the resources, to be all in the room together at the one time?‑‑‑I think that’s pretty well accepted, given that there was guys travelling from all the regions around the state.

PN493

Okay. On 30 May, Tas Water wrote back to you and that’s in TW08. Within that, on the second page right down the bottom Cathy Cuthbertson says, “We are disappointed that the SBU has now unilaterally sought to move bargaining meetings to Campbell Town” - right down the bottom, TW08; a letter addressed to you, Mr Lambert?‑‑‑TW08, yes.

PN494

That’s it. On the second page right down the bottom?‑‑‑Yes.

PN495

It’s headed, “Tas Water’s position in respect to your email on the 27^th.” I’ll just approach Mr Lambert there, your Honour; just down the bottom?‑‑‑Yes.

PN496

Just there?‑‑‑Yes.

PN497

So they express disappointment that you had made a unilateral decision?‑‑‑Yes.

PN498

It’s hardly working with a productive manner as suggested by your earlier letter on 23 May, is it?‑‑‑It could be conceived as that but I think it needs to be also be conceded there was a lot going on in the forums and on the phone at that time from both parties as we sought to reach resolution on where and how we would meet, with meetings. I think you would be aware at the very start there was a major stoush on how it would all play out. Yes, I can’t say anything more than what’s written in that paper, Mr Dilger.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN499

Okay. I’ll take you to the fourth paragraph down. It starts on the third page, with, “One of the effects of your email” - Ms Cuthbertson writes, “One of the effects of your email if we were to accept your unilateral change to the meeting location is that we have no way of determining how many roles need to be covered and therefore requiring extra resourcing. The change also places unreasonable extra costs on Tas Water to cover absences from work. As an example, there will be an increase in travelling time and a consequential reduction in the availability of all delegates to perform their ordinary work. We have estimated that the increases compared to Tas Water’s proposal are likely to be between one and four-and-a-half hours, depending on the work location”?‑‑‑Yes, and I think it was around that same time there was a bit of argy-bargy going forward that the employees would be required to bring their own cars; Tas Water wouldn’t provide them with a vehicle and there was a bit going on the scenes from Tas Water’s side as well, in terms of how they would allow representation. Clearly you’ve got a picture here but there was another side to that.

PN500

Okay. Then eventually, Campbell Town became - after Commissioner Lee’s intervention on 18 July 2014 - the preferred meeting destination?‑‑‑Yes, yes.

PN501

So my recollection is Commissioner Lee said for at least the first six to eight meetings you must go to Campbell Town and that the parties after that invariably chose Campbell Town as the central meeting place?‑‑‑Yes, I think that was one of his recommendations, yes.

PN502

Okay. So it appears that the parties have already expended - Ms Cuthbertson has talked about the resources Tas Water expended, the resources that CEPU expended for you, but it appears the parties have actually expended a significant amount of time and resources to actually utilise Campbell Town as the bargaining destination. Everyone had to travel?‑‑‑Yes.

PN503

Okay. You’ve originally asserted that bargaining progress had not actually - you hadn’t made a lot of bargaining progress by this stage?‑‑‑To be honest, I don’t think we’ve made a lot of bargaining progress through the whole process itself but we’ve endeavoured where we could to do the best we could under the circumstances and the specific parameters both parties seem to be working under.

PN504

Okay. But if we went to a roll-over agreement as we talked about - that’s the three regional scopes starting with those existing terms and conditions - all of the time, resources already expended with those 20 meetings, they’d effectively all be wasted?‑‑‑That’s your opinion. I don’t know about being wasted. I mean, we’re still trying - no matter where it was we are still trying to negotiate an agreement. I don’t know how you would say it was wasted - - -

PN505

Okay?‑‑‑ - - because we moved.

PN506

Because it would almost be throwing the baby out with the bath water now if you didn’t capitalise on the progress you have already made?‑‑‑Well, we are trying to reach an agreement.

PN507

Whilst Campbell Town requires everyone to travel, rather than just two out of the three areas, do you believe in fairness it meets your objectives for having everyone in the same room at the same time?‑‑‑Could you explain - I’m not sure what you mean.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN508

Okay, so Campbell Town is a good place to be because everyone has to put some skin in the game to be there?‑‑‑Travel to some extent, yes.

PN509

Exactly. Once you’re all there, you all get to be in the one room all at the same time?‑‑‑Yes.

PN510

Okay, and if you rotated them from Hobart to Launceston to Devonport, Burnie, whatever, two out of the three would always - someone would miss out?‑‑‑Someone would miss out?

PN511

Someone would be put at a - two out of the three - if you had it in Devonport, Hobart and Launceston would have to travel but Devonport wouldn’t?‑‑‑Yes.

PN512

If you had it in Launceston Devonport and Hobart would have to travel and if you had it in Hobart Launceston and Devonport would travel?‑‑‑Yes.

PN513

So two - if you just keep it in a single location other than Campbell Town, someone misses out?‑‑‑Yes, and there was also safety factors in regards to that too; it was given a little bit of reluctance that someone would have to travel from, say, Burnie all the way to Hobart and back if the company didn’t have an appetite to pay for overnight accommodation so we felt there was also a safety risk in regards to that.

PN514

Okay. So the Tas Water bargaining personnel are all based in the south?‑‑‑I guess so. I don’t know where they personally live.

PN515

Okay. If they were required to attend meetings in the north-west, they would have to travel from south to Devonport; from Hobart to Devonport?‑‑‑Yes.

PN516

Which is considerably further than travelling to Campbell Town?‑‑‑Yes.

PN517

If the meetings were in the north they would have to travel to Launceston, which is again considerably further than Campbell Town?‑‑‑Yes.

PN518

They couldn’t concurrently travel to all three destinations, could they?‑‑‑No.

PN519

No, okay. You yourself couldn’t be in the same place at the same time for a meeting in the north, a meeting in the south and a meeting in the north-west?‑‑‑That’s correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN520

So if meetings were required in the south, north and north-west on separate agreements, that would require a considerable amount of scheduling to insure that none of those separate meetings impacted on each other?‑‑‑Not necessarily, because I think you would find that the number of unions participating would be dramatically lessened and I think that you would also find that the delegates, being the regional delegates representing their own area, would also be lessened. So the people sitting at the table would be marginally less and therefore less impacted.

PN521

But the Tas Water people would always be required to travel, particularly in the north-west and the north, further than they ordinarily would have at a single meeting in Campbell Town?‑‑‑Well, perhaps; I don’t know if there is HR people on the north-west coast and where they live. For myself, I’m from the north so no more than I travel to the south to all the negotiations.

PN522

Now, six of the unions in the SBU are actually in the south, aren’t they?‑‑‑Yes, but not representing the various regions.

PN523

Okay. On 3 June - and we talked about this before - the attachment is IN10, Ian Nelson number 10 and that’s the document referring to 3 June 2014?‑‑‑IN10 - - -

PN524

It’s a 54-page document with attachments from Luke Crowley. Have a look at the first part, before the agreement; there’s an email and it’s from Luke Crowley on 3 June at 1.54 pm?‑‑‑Yes.

PN525

He says, “Hi, Alex; please see attached. It is in the form of an enterprise agreement still and not in the format of a log. We also have note pages of additions to go in.” So previously, you had committed to providing a consolidated log of claims on 23 May 2014?‑‑‑Yes, and we had also looked at one earlier that was provided on 2 May.

PN526

Okay. But if on the 23^rd you were agreeing to providing a consolidated one it follows, doesn’t it, that the one you provided on 2 May wasn’t consolidated?‑‑‑No, it follows on and it reiterates my argument that no matter how many times we put it forward the company didn’t acknowledge it and they kept saying they never received it.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN527

Commissioner Lee didn’t think you did either. He required - the orders require a consolidated log in his recommendations on 18 July 2014?‑‑‑I wouldn’t agree with that. I wouldn’t put words into Commissioner Lee’s mouth on what he thought and what he didn’t think. All I can say is from where we sat we produced one on 2 May. There was an undertaking obviously that was going to produce it again because the company hasn’t acknowledged it because Commissioner Lee had asked us to produce it again. I don’t know if that goes towards his mindset that we didn’t.

PN528

Well, let’s have a look at TW17 and let’s have a look at what the Commissioner actually did say. TW17 - it’s just above the part that talks about conduct on the second page and it says, “The employer will, within three days of the first scheduled meeting, confirm their proposed classification structure to the bargaining representatives. Provided the SBU receive the proposed classification structure within the time frame the bargaining representatives will provide the employer their proposed wage claim and finalised log of claims at or before the subsequent scheduled meeting. The finalised log of claims will identify any changes made to the log from 3 June document.” So yes - I don’t know what Commissioner Lee was thinking but it’s absolutely clear to me on those words that he didn’t think the log that we’re talking about in IN10 was finalised. It still missed a wage claim and he’s actually in his recommendation required you to put that document?‑‑‑My interpretation of that - and once again I can’t speak for Commissioner Lee - was that the company, ie Tas Water, had raised concerns such as we had raised concerns about delegates and he was trying to address those concerns. So I really don’t understand if it was a direction or whether it was to move forward with the negotiations and some recommendations that could appease both parties.

PN529

Okay. Let’s take for a moment that log on 3 June 2014; IN10, if you still have it open. I want you just to go in a couple of pages and have a look where it says, “Parties bound” - a couple more pages over, Mr Lambert. There it is. The parties bound clause there specifically refers to a single state-wide scope?‑‑‑Yes. In relation to that, we keep referring back and it keeps getting raised that we haven’t raised the issue of the scope and there is obviously a number of examples that you’ve raised where we haven’t but I think I need to point you back to - on the original log of claims on 2 May we did actually point that out. I’m not aware that because we haven’t produced that on numerous occasions since, that it should be discarded.

PN530

Mr Lambert, we did talk about what was produced on 7 May and the significant point is this: there is no evidence - you’ve been asked on a number of occasions and you can find no documentary evidence, none whatsoever, of any position by the SBU that relates to three regional agreements until 17 December?‑‑‑Well, I disagree. I disagree because I think we actually touched on that on 2 May on our log of claims.

PN531

No, you touched on it when you gave your initial log. You said - do you want to have a look at the document? You talk about, “We’re going to have a combined, single, state-wide agreement”?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN532

You talk about, “That’s what Tas Water wanted”?‑‑‑Yes.

PN533

“We are going to progress along that”?‑‑‑Yes.

PN534

But after that there is a hell of a lot of bargaining that goes on and you do not mention one skerrick of a three-regional-scope agreement?‑‑‑But I’m not sure it’s a numbers game, Mr Dilger, that I have to. I mean - or the parties have to. It was mentioned at the start. Under Tas Water’s mandate we tried to make it work. Obviously, it hasn’t.

PN535

So let me get this straight: you don’t have to mention scope? Tas Water just have to sit there thinking everything is going okay and you’re going to tell this Commission that you can just spring it on at any time without a written proposal saying, “We have a problem with scope”?‑‑‑No, what I’m trying to say is we was trying to bargain in good faith to meet Tas Water’s objective but we raised concerns at the very start that this could be a problem. We have not raised it on a number of occasions you’ve highlighted but that doesn’t mean that we still didn’t hold those concerns throughout the process.

PN536

Just that no-one else knew about them?‑‑‑Well, I think they did know about it because we stated at the very start of the process and as I have also repeated - I haven’t got written proof but I say under oath that it was mentioned verbally throughout the negotiations.

PN537

I’ve given you a number of examples. I’ve given you on 18 July when you were before the Commission - no mention whatsoever by Commissioner Lee. We’ve got the professional scope application on 3 June - 20 June, rather - where they raise scope as a particular issue; no mention there. In October Mr Crowley makes a bargaining dispute application: again, no mention there. On 4 December, you put a proposal document; no mention there. On 8 December you put a proposal document again; no mention there. Then finally, after all of that, on 5 February you rely back on the documents you put on 4 and 8 December and once again, back to a single scope. That is the reality of the documentary evidence, isn’t it?‑‑‑Well, you could say that and that’s your opinion but I think we also must understand that we act on the direction of our members and we negotiate on the direction of our members. There is concerns with the whole process the whole way through.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN538

Mr Lambert, if your members were directing you to do something all throughout this time, why isn’t there any documentary evidence whatsoever of putting that to Tas Water?‑‑‑Well, the evidence is our delegates go back out to the workforce. They give us verbal instructions after speaking to the members and coming back to us. What we put forward to the company and what our delegate says is the concerns between the members and those who I represent.

PN539

It’s just a ridiculous proposition, Mr Lambert, that into the documents that talked about a single scope - and that was in accordance with your members but when your members then wanted to talk about a three-regional scope you just didn’t put it in to any documentation. Is that what you’re asking this Commission to understand you’re saying?‑‑‑Well, what I’m saying is I think the members have spoken with an 88 per cent no vote.

PN540

That’s nothing to do with scope. That’s just a no vote. That happens all the time. Did they say in the no vote that it’s about scope, because that was in November and after November - 13 November was the no vote. Following that no vote, repeat them again: 4 December, single-scope agreement. 8 December, single-scope agreement; 17 December, you raise scope - there’s your three-regional scope. 5 February 2015, back to single scope. So don’t worry about what happened until the vote because until that time you still haven’t mentioned it. If you can find a document in there feel free to bring it out?‑‑‑Look, as I said, Mr Dilger, we can talk semantics about how many times it was raised. I still stand by my original point; it was raised at the start of the negotiations. We tried to appease Tas Water and at the end of the time you said, it was raised again. The numbers of times - yes, you can say it hasn’t been raised a number of times throughout. You’ve made your point, I’ve agreed with that. But what I’d like to highlight is it was made at the very start of these negotiations.

PN541

On 7 May 2014?‑‑‑Yes, in that document.

PN542

Okay. Members of the SBU consider video-conferencing to be ineffective, don’t you?‑‑‑Yes, we do.

PN543

Okay. So following that logic, members of the Tas Water negotiating team were all based in the south could never reasonably efficiently and effectively participate in bargaining in the north and north-west unless they attended face to face?‑‑‑That’s correct, and the reason we are opposed to video-conferencing is we found it very informal, as I highlighted earlier. We rely on our delegates from the different regions to run us across the clauses, run us across the concerns. Through a video-conferencing it sort of inhibits that and makes our life a lot harder in order to negotiate an agreement and get a clear understanding from our delegates on what their current workplace requirements are. So we sought that face to face, yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN544

So similarly, you reside in Launceston. If you had to attend on behalf of the CEPU for a three-regional scope agreement you will have to travel to Devonport?‑‑‑Yes.

PN545

For something in the north-west, Devonport or Forth or Burnie; if something is in the south you’ll have to travel to the south?‑‑‑I do that every day now, nearly.

PN546

Okay?‑‑‑Yes.

PN547

Not a very efficient use of your time, Mr Lambert; four hours up and down to go to a meeting?‑‑‑Well, it depends on what you define as efficient. My job is to represent the members to the best of my ability and if they want you there and I have to do the travelling that is part of my - - -

PN548

But if you could deal with it all in one meeting at Campbell Town, you’d have to agree that’s a more efficient use of your time and resources?‑‑‑As I say, Mr Dilger, my time and resources come second to my members and what their wants are.

PN549

Okay. Let’s just do it in a mathematical - don’t worry about your members. Mathematically - - -?‑‑‑But I do, Mr Dilger.

PN550

I’m happy that you do and that hasn’t been in question. We understand you role as an organiser has not been in question. Mathematically in terms of cost, in terms of time and miles spent if you could deal with all three meetings in one place at Campbell Town that would be more efficient than it would be for you to travel from Launceston to Devonport and from Launceston to Hobart?‑‑‑Well, that would be correct and that would be one way of looking at it but like I say, on the other hand that mindset doesn’t come into it with my job.

PN551

Okay. Let’s go to the meeting on 5 June and in that - it’s TW09, Ian Nelson 11 and paragraph 47 of Ms Garrott’s statement, for the transcript, if you want to refer back to it, your Honour. But TW09 and have a look at if you will talks about your requesting some grandfathering?‑‑‑TW09?

PN552

TW09 - it’s on page three of four and it’s about halfway up from the bottom and it says, “It was proposed by the SBU that consideration be given to grandfathering some matters to be further worked through during the life of the new agreement”?‑‑‑Yes, that’s correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN553

So that’s a good way of dealing with particular issues that you may not be able to overcome?‑‑‑We put to Ms Cuthbertson in November last year as well - prior to the agreement, the negotiations starting.

PN554

Another alternative might be to buy out entitlements if there was concerns about that?‑‑‑I believe the company put that forward.

PN555

Okay. So the adverse working conditions, I understand which only applies in the north-west, there was an offer of $2,000 to those affected people to buy out that entitlement?‑‑‑Yes, and that was part of the vote that went out and was soundly rejected.

PN556

Okay. At least it was an alternative capable of being accepted?‑‑‑But it wasn’t accepted; it was unanimously rejected.

PN557

There’s only been one vote so far?‑‑‑Yes.

PN558

Okay, so on that 5 June the small negotiating groups again discuss scope and related matters. Now, all of those matters relating to scope were attended by Mr Crowley and only related to the Mercer system and the extension of senior employees?‑‑‑Yes, that’s correct.

PN559

Let’s go to TW10; that’s the meeting on 12 June. Have a look at the bargaining meetings there. They occur in Hobart and they discuss a range of things: junior employees, apprentice and trainee employees, abandonment of employment, employment categories part-time, employment categories casual, employment categories temporary, probationary employment, reimbursement of expenses, notice of termination, items deliverable to the employer, summary termination, redundancy, traineeships and school-based apprenticeships, employee discount on water bills, relocation expenses, licensing and training, dispute settlement procedure, union delegates, flexibility arrangements, individual contractors and labour hire, local area work agreements, fitness for work, definitions, agreement to be exhibited, salary sacrifice, no extra claims, relationship to the award payment of wages, superannuation excluded, allowances, national employment standards, and Fair Work information statement. They were all on the agenda for that day?‑‑‑I’ve only got one page here but possibly. Once again, we seem to be running off Tas Water’s summary.

PN560

Mr Lambert, it goes over a number of pages. I’ll just show you there; that’s the documents we’re looking at, keep going over?‑‑‑Yes, thank you.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN561

Found that now?‑‑‑Yes.

PN562

So they’re all the things that we’re talking about and you’ve been involved in enterprise bargaining for a long time; they’re exactly the types of discussions that turn up week in, week out in enterprise bargaining?‑‑‑Yes.

PN563

Okay. I’ll take you now to your paragraph 57 and you say in there words to the effect - and I’ll summarise it, it’s your statement, sheet 11. You basically say the CFMEU is interested in job security and the HSM. AWU concerned with on call and higher duties. CPSU are concerned with classification structure. ASU, adverse working conditions; ANW only concerned with on call and higher duties. They don’t care about anything else. Professionals Australia are concerned with classification structure and the CEPU, same as the other unions. So that’s a significant list of other topics you actually discuss at meetings which you claim you had no interest in discussing?‑‑‑I think what it also highlights is the disparity we have between the unions and the various regions that the unions handle their interests in. The AMWU representing Hobart - the CFMEU - we have coverage over all of the areas whereas some unions are specific to their general area. So they are concerns raised would be specific to their membership.

PN564

So they would have no interest whatsoever in what junior employees were doing; nothing to do with abandonment of employment; part-time, casual, nothing to do with that? Probation - wouldn’t have any interest to do with that?‑‑‑I guess they would but I can’t speak for the other unions but I did want to highlight that there was variations and concerns, depending on the regions.

PN565

Your statement seems to allude to the fact that they are the issues, yet all of those other issues I’ve talked about would universally apply to every employee, apart from junior/casual. But things like summary termination, all of those - unions’ delegates, flexibility arrangements - they have the capacity to apply to any employee, regardless of region?‑‑‑Yes.

PN566

So you previously told us that you were free not to attend meetings if you didn’t want to?‑‑‑I was free - - -

PN567

You could choose as the CEPU not to turn up to a meeting?‑‑‑I guess anyone can but we don’t follow that.

PN568

No, you didn’t do it, but you could have?‑‑‑I guess we could have. Anyone is free to do that, yes.

PN569

You could have even revoked the authority of the SBU to speak for you?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN570

Yes. Okay, I’ll take you to 12 June and you talk about scope there again and the reason it’s there - it talks about the issue of being parked?‑‑‑Which page is that?

PN571

Sorry: TW10?‑‑‑Okay.

PN572

Now, the reason it was parked was because only Professionals Australia had an interest in the issue; no-one else was worried about that at that moment?‑‑‑Sorry, which issue was that? I’m a bit lost.

PN573

Scope - TW10?‑‑‑Yes.

PN574

It is agreement coverage, item 21, item parked.

PN575

MS CLARKE: There’s four sets of meeting notes on the one day. It’s in the last set of meeting notes of TW10: small negotiation group on scope, 12 June. Just go to TW11 and go two pages back.

PN576

MR DILGER: Now the reason that was parked, despite discussing all of those other topics, was because only Professionals Australia had an interest in extending the scope to cover their senior employees?‑‑‑Perhaps, yes; I can’t answer it. I can’t remember that stage of proceedings but perhaps that was the case.

PN577

But you didn’t have any particular interest because you would have been there, Mr Lambert, had the CEPU had an interest?‑‑‑Perhaps; as I say I can’t recall particularly so I don’t understand. There may have been a reason, there may not have been. I can’t answer it, I’m sorry.

PN578

Mr Proverbs was there?‑‑‑He would have been representing us.

PN579

That’s right. On 19 June TW11, I’m going to go through that extensive list again. But it starts off with, “These are the topics that were again in discussion,” and your name is there and the matter has been discussed with junior employees, apprentice trainees, abandonment of employment, part-time, casual, temporary, probationary employment, reimbursement of expenses, notice of termination, items deliverable to the employer, summary termination, redundancy, traineeships, school-based apprenticeships, employee discount on water bills, relocation expenses, licensing and training, the DSP, union delegates, flexibility arrangements, contractors, labour hire, local area work agreements and fitness for work. Once again, a week later, same big group of issues, all not related to a three-agreement scope?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN580

Okay. So now we get to - and we’ve talked about this before - so I won’t deal with that. If we go to TW67, that’s the Professionals Australia scope application. The whole aspect of the scope application by Professionals Australia only relates to departmental manager, of which - and the Mercer system - of which the CEPU have expressed no interest whatsoever?‑‑‑In answer to that, that would come back to coverage of our membership and I would assume that Mr Crowley’s membership is what was covering this. We would have very few members in that area.

PN581

Okay. Mr Crowley set out - he says on page 9 of 2 in his application, “The proposed scope” - that is, what Mr Crowley is suggesting is to extend it to senior employees under paragraph 6. It says, “The applicant’s proposed scope does not impose any real detriment on the employer”?‑‑‑Are you asking me to comment on that?

PN582

Yes, that’s what he says?‑‑‑I’m not Mr Crowley. I can’t comment on that.

PN583

We’ll go then to the page before on 3.4. Mr Crowley in 3.4(b) says, “The majority have excluded the employees’ wish to be included in the scope of the proposed agreement”?‑‑‑Once again, I can’t comment on Mr Crowley’s - - -

PN584

Well, that’s what he says. It’s a great example, though, isn’t it, Mr Lambert, of Professionals Australia putting in writing their contentions relating to their problems over scope?‑‑‑Yes.

PN585

Yes? And you’ve asked us to find in these proceedings that even though you didn’t put anything in writing and there is no evidence whatsoever of any such discussions put to Tas Water, that your members and your organisation was agitating issues of a three-regional-agreement scope beyond just on 7 May 2014?‑‑‑No, I disagree. I think as you cited yourself, there was three occasions. There was a lapse and a span between them, I admit, but I think there was the three occasions: there was the very start and there was the two occasions that you get in December, January, that you cited yourself after that.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN586

Yes, they all talk about a single scope. That’s when on the 4^th you provided a document; it’s a single scope. We’ve already looked at that, that’s TW70, 71, 72. You had the document that was provided on 8 December and then you have the document produced by Mr Ash on 5 February. All of those do not say anything whatsoever of the three-regional scope. They’re quite clear; they all talk about a single-scope, state-wide agreement?‑‑‑Yes, as I keep saying, under Tas Water’s request - and I go back to 2 May where those concerns were - we can’t explain it any clearer than we did at that original May log of claims. I’m just a little bit lost as to the number of times you feel we should have mentioned it. I just think it’s on record that we did mention it.

PN587

On 24 June 2014 TW12, Luke Crowley at 8.46 basically says, “Have we dropped the four-meetings-a-day approach? I’m concerned that the progress of negotiations will be even slower if we are only having two groups a week and would suggest that we stick to as many groups on the day as possible.” That was the position of the SBU?‑‑‑That was the position of Luke Crowley, obviously.

PN588

Well, he speaks on behalf of the SBU. He’s written it all out there; Alex Garrott replies to the unions, her earlier email, and Luke replies?‑‑‑I think as you understand that even though we were acting as SBU we still have no control over what people send on our behalf. An email was sent with or without our consent. We have no control over that.

PN589

So the SBU, though, was concerned that if the matters were not run concurrently it would be a waste of time and resources of the union officials to have to double up on the meetings?‑‑‑You’ve lost me.

PN590

Okay: you want them run concurrently because you don’t want to have to attend a meeting in the afternoon and a meeting - sorry, a meeting in the morning and a meeting in the afternoon. You said, “Let’s run those two meetings concurrently so we’ll just bring delegates all at the tone time”?‑‑‑I guess for reasons that you’ve explained early on we was trying to utilise and maximise the time and the resources requires for both the company and ourselves.

PN591

Okay. So if they weren’t run concurrently, that would have been basically a waste of the whole day; you would have had to have a meeting in the morning and a meeting in the afternoon?‑‑‑I guess, yes; I guess so. I know that really the meetings and the split-up groups proved to be a spectacular failure, for the simple reason that as I outlined earlier people from different regions were making decisions and when it came back the aim was to come back to a main table and tick off on them. How it failed was when it did come back to the main table unions wasn’t agreeing with what was agreed by other unions affecting their particular regions.

PN592

You put up with that from May through to 17 December 2014?‑‑‑What, at the table with selective groups?

*** TODD EDWIN LAMBERT XXN MR DILGER

PN593

No, you put up with what you’ve said was a spectacularly unsuccessful or unsatisfactory situation?‑‑‑No, I refer to the group situation. I don’t think that went too long. My understanding - I may be wrong - is it only went for three or four weeks. When we had the group approach and we went away and then it went back to and in between we had the Fair Work hearing. Yes, the actual individual groups was - them reporting back was a spectacular failure, yes.

PN594

While we’re on TW12, let’s have a look at - Mr Harkins makes an appearance at 441. He sends an email to everyone and he writes on behalf of the SBU stating, “I think the reduction in sessions has more to do with Alex’s need or insistence to attend everything, which displays little trust in her colleagues, but that’s their problem.” That’s what he said on your behalf?‑‑‑I think he said that on his own behalf.

PN595

Well - - -?‑‑‑Once again, I go back to the point even though we’re acting as an SBU we have no control over who sends an email or decides on a whim to send an email.

PN596

We’ll take you right back to the early parts this morning; we actually asked you was Mr Harkins authorised to speak on your behalf and you said he was?‑‑‑At the meetings, yes.

PN597

Yes. So what, he was authorised at the meetings but he wasn’t allowed to converse in the interim?‑‑‑I didn’t say he was allowed or wasn’t allowed to do anything. He’s a free spirit, Mr Harkins, and he chose an email. I have no authority to stop him or tell him to do what he chooses to do. He was elected spokesperson at the table at the time and was trying to get people speaking separately. He was doing it alternately at the meetings; one week the company would have chairman, the next week we had another chairman. We thought because it was so hard with all the unions, if we had an independent spokesperson at the table, that would be - made the process a lot easier to run from.

PN598

I asked you earlier, right at the start of this, whether the SBU was able to publish on behalf of the members of the separate unions and you said that now was the case. Are you now suggesting that what Mr Harkins writes on behalf of the SBU isn’t what you’re thinking?‑‑‑I’m not saying either, and, or. I’m saying that Mr Harkins sent an email. I’m not saying that it was fully endorsed at the time by the SBU.

PN599

Let’s have a look at that email. There is a high level of acrimony between Mr Harkins and members of the Tas Water bargaining team, isn’t there?‑‑‑Acrimony, that’s a big word; can you explain that?

*** TODD EDWIN LAMBERT XXN MR DILGER

PN600

It means they don’t like each other?‑‑‑No, I don’t think that’s the case. If they don’t like us I have no problem with them - in fact, I think we have a good relationship with most of them.

PN601

You do, but Mr Harkins particularly doesn’t have a good level of relationship with Ms Garrott?‑‑‑I don’t know about that.

PN602

You don’t know about that?‑‑‑I mean, we sit at the table and we have a laugh and yes, things get heated. But it’s not on a personal level and I testify in relationship with people in this room that we sit down and we have a laugh. We try and keep it professional so I’m not saying that it doesn’t get boisterous at times. It’s both our passion to reach an agreement.

PN603

You’re not suggesting that’s personal? “Alex’s need or insistence to attend everything, which displays little trust in her colleagues, but that’s their problem”?‑‑‑But you’re asking me to comment on a relationship that I don’t know the status of between Mr Harkins and Ms Garrott.

PN604

Okay, but all I’m saying is you’ve been around workplaces for a long time. Have a look at that statement. If a reasonable person were to assess that, do you think they’re getting along or they’re not?‑‑‑I reiterate - I’m not dodging the question - I have no right to comment on that because I don’t know the mindset of both parties at that time.

PN605

Okay, you are dodging the question so I’ll ask you like this: if you saw the words that said, “This has everything more to do with Todd’s need or insistence to attend everything, which displays little trust in Todd’s colleagues, but that’s their problem,” would you personally think that was something which was unfriendly to you?‑‑‑To be honest, Mr Dilger, I’ve received a lot worse in my day.

PN606

You’ve received a lot worse but that’s not the question?‑‑‑But I don’t take it to heart, no.

PN607

On 26 June there was another bargaining meeting and if you go to TW13 if you go right down to the second last two paragraphs, it says that the SBU were losing faith in the bargaining process and were frustrated with the lack of progress and they said, “I think the small negotiating group would not work unless we again meet concurrently.” TW13 - sorry, on page one of four, right down the bottom, just here?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN608

So again, we’ve had some movement with how these meetings have been conducted so you want them conducted concurrently. We talked about it earlier; rather than have a meeting in the morning and a meeting in the afternoon, run two of them concurrently?‑‑‑That’s probably the case but once again, we’re running of Tas Water’s minutes and their summaries that we have never, ever acknowledged to be accurate or true.

PN609

Okay?‑‑‑I think we’ve got an email somewhere where we said that to them, to the company.

PN610

Okay, if you’ve got that email, Mr Lambert, please produce that?‑‑‑I can’t here and now but I’ll attempt to, yes.

PN611

You’ve had almost two months to see all of this evidence. If you disagreed with it for the benefit of the Commission that those materials should have been put before his Honour so he can assess that. Are you saying you haven’t read it or you just don’t have it?‑‑‑In fairness, Mr Dilger, I’m not privy to the questions that you’re asking me at the moment and what I need to provide every individual answer for.

PN612

Okay. It would be impossible, if you were running concurrent meetings, if there were three regional agreements you would effectively have to run multiple concurrent meetings to deal with all the issues; is that the case?‑‑‑Multiple concurrent meetings?

PN613

If there were three regional agreements - - -?‑‑‑Yes.

PN614

- - and you were dealing with those issues concurrently or as close to, there would be multiple meetings going on dealing with those three regional agreements?‑‑‑As would have been the case when those agreements were formed, yes.

PN615

Okay. Now, the idea of a small meeting group was that it involved less than about 10 people?‑‑‑Yes.

PN616

The attendees on behalf of Tas Water that - the meeting attendees, the bargaining representatives - they only changed by about one to two people per meeting, is that correct?‑‑‑What, for the one Tas Water agreement?

*** TODD EDWIN LAMBERT XXN MR DILGER

PN617

No, for the Tas Water people - the same people turned up week in, week out, and only one or two dropped off or increased, depending on the meeting?‑‑‑Yes, there was a level of people coming and going early on, as a needs basis. I believe Mr Bells was swung in and out a couple of times and Mr Wilmot was swung in and out a couple of times but there was probably the basis of half a dozen people negotiating.

PN618

Okay. For small meetings, as many as six delegates attending a meeting?‑‑‑Yes.

PN619

Yes. The problem, really, with these small meetings - they actually weren’t very small at all, were they?‑‑‑No, they wasn’t, and that was a problem that would be fixed under three-regional agreements.

PN620

Okay. The SBU regularly caucused during meetings?‑‑‑Yes.

PN621

So if things aren’t going well, why, between 7 May and to 17 December, there’s no change apart from slightly maneuvering around, going from small meetings, concurrent meetings; no other change?‑‑‑I don’t know. I don’t know what you’re suggesting.

PN622

What I’m suggesting is it’s odd and it indicates that you had the opportunity when you were caucusing to identify some problems going on and you chose not to do anything?‑‑‑Well, I guess that’s your perception.

PN623

Well, what did you change, Mr Lambert? After you caucused and you had problems with these agreements, what was it that you changed?‑‑‑We sat at the table. We went through the same as the negotiation process. We put forward issues of concerns, the company put those on an agenda and we dealt with them as they came up. It was a negotiation process. I don’t know what - what do you mean by change? I don’t understand your line of questioning at all.

PN624

Well, Mr Crowley got agitated. Mr Crowley made an application. Mr Crowley in fact got agitated twice that he made applications. Tas Water got agitated. They made an application. It took you seven months before you got agitated enough to do anything?‑‑‑I think it highlights, if anything, the disparity between the unions and this agreement and how it all was unravelling, to be honest.

PN625

Okay. So Tas Water though never had any concerns that the scope was inhibiting the conduct of this bargaining; they’ve always maintained a single scope?‑‑‑That’s Tas Water’s view.

PN626

Okay. In this particular matter you had an opportunity to actually seek conciliation and you chose not to?‑‑‑Seek conciliation, Mr Dilger?

*** TODD EDWIN LAMBERT XXN MR DILGER

PN627

Yes. So you made application for a scope order, you were given the opportunity to conciliate - I’m not talking about today, totally different circumstance. First attendance at the Commission you were given the opportunity to conciliate and you said you would not conciliate?‑‑‑Are you talking about this morning?

PN628

No, I’m not talking about this morning. I said that. When it first came before Commissioner McKenna you were given the opportunity to conciliate; you chose not to?‑‑‑Perhaps, yes - we are acting on advice, same as everybody else is so that must have been the case, yes.

PN629

Yes. Now, previously on that meeting on - let me just have a look at this - I’ll leave that. On 3 July 2014 you attended a meeting and it’s TW14. You put out a statement on behalf of the CEPU and it’s a little bit difficult to see on the printout. But I’ll read it out for you and it says on the third paragraph up from the bottom, “Negotiations for a new agreement broke down today after only seven minutes when Tas Water representatives stormed out of the room and subsequently demanded the union parties leave the building. In a highly unusual turn of events, Tas Water notified the unions of an application to Fair Work Australia via media release and the contact person is you.” Okay. It’s not actually correct, what you say in that document, is it, Mr Lambert?‑‑‑I believe it’s 100 per cent correct, Mr Dilger.

PN630

Okay. So the storming out was not a storm-out; in fact what actually happened was you stacked the meeting with more people than you had advised were coming to the meeting and the Tas Water personnel had nowhere to sit in the meeting because you had approximately 25 union organisers and delegates in the room, which was meant for about 20 people, which was the group that had anticipated would be attending the bargaining meeting?‑‑‑I strongly reject that assertion, Mr Dilger, and I come back to the fact that I think reinforces it; how hard is it to get a couple of chairs and sit in with us?

PN631

Now, the reason why the meeting changed and didn’t proceed was because Mr Harkins required the DSP to actually be discussed as the first agenda item, which changed the agreed agenda items that you had already had in place. That’s really what happened?‑‑‑Not aware - the DSP was put on as a priority agenda because it’s such an important part of any agreement. I think it would be fair to say that the first however meetings it took and it took the CEO to sort it out that that was a priority agenda, yes.

PN632

Okay. Now, what actually happened in that meeting, you were notified in that meeting Ms Garrott actually told you that she was going to make an application for good faith bargaining order?‑‑‑No, I don’t recall that at all.

PN633

Okay. So the first you know if it is you get it via a media release?‑‑‑That’s correct, if I put it in that that’s exactly right.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN634

You’re absolutely sure about that?‑‑‑As far as I can recall, yes. I pride myself on all my releases and I know there’s been a bit of argy-bargy with them not being happy with it but I pride myself on my word is the truth.

PN635

Okay?‑‑‑I’m not into lying to my members.

PN636

So you actually at that meeting said, “Can we have 10 minutes after the meeting had concluded?” You actually asked for 10 minutes to caucus?‑‑‑I’m not aware. I might have.

PN637

Why were you still in the room then if the meeting had finished?‑‑‑Probably still in shock over the company walking out, to be honest.

PN638

Mr Lambert, you’re a big boy; you’re in shock? You expect us to believe that? You’ve had to stay around because you’re in shock?‑‑‑I think it’s a fair reaction that if a company comes in and says, “There’s no chairs,” and storms back out that you’re going to hang back for 10 minutes and discuss what went on, Mr Dilger.

PN639

The reality is you didn’t stand back for 10 minutes as you’ve just said: you stayed for 45 minutes?‑‑‑I didn’t time, Mr Dilger, how long we was there but we was there to discuss the events.

PN640

The time is important, isn’t it, because the delegates are being in paid work time during that time, aren’t they?‑‑‑Yes, but it’s also acknowledged that they’re part of the SBU and representing it so they had the right to be there as well as those discussions took place.

PN641

While the meeting was occurring?‑‑‑Yes.

PN642

And the meeting had finished after seven minutes?‑‑‑Tas Water had finished the meeting, yes. We were still there.

PN643

Okay, so earlier on you said you didn’t think you hung around. Now you say it was 10 minutes. Now when I tell you it was 45 you’re saying you were legitimately there?‑‑‑I was there, yes, but I don’t remember exactly what time, Mr Dilger, and I put forward that whether it was 10 minutes or 45 minutes it would be a he-said, she-said situation. I don’t know anyone who would recall the actual time frame we was there.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN644

Ms Garrott and Mr Nelson do, because they actually instructed someone to go and ask you to leave because you had only asked to be there for 10 minutes and you were still there at 45?‑‑‑Well, I don’t know the circumstances surrounding that.

PN645

Okay. Take you to TW13 - on the third page, third page of four, Tas Water requested that you advise your position on classification structure and despite this being a number of months into negotiations, you didn’t have a position on classification structure?‑‑‑Tas Water’s document, yet again.

PN646

Okay?‑‑‑I’ve got to be honest, Mr Dilger: I did not see half of these enterprise negotiation forms. If they were sent to us we never acknowledged them. I will be honest in that because we sent out an email that there was obviously two differing opinions coming out of each meeting and Tas Water ran their own, they issued it to their employees and we ran our own and we issued it to our members.

PN647

Okay, just go to the last page of that document, page four of four, so just flip over: “Tas Water strongly requested that the SBU provide a fully-detailed log of claims by Tuesday next week in advance of the next meeting.” So another request to full particularise your claims?‑‑‑Once again, Mr Dilger, you’re questioning the validity of the document and the newsletter I put out. I’m questioning the validity of the document that Tas Water put out.

PN648

Okay. I’ll just point out for the record that you are unable to produce any documents - there’s no documents in the papers that you’ve provided that suggest anything to the contrary, Mr Lambert?‑‑‑That’s correct, except - I’ve looked for the email where we wrote to the company and said we wasn’t accepting of their minutes.

PN649

On 1 July Professionals Australia attended a conciliation conference before Commissioner Lee regarding scope. You didn’t attend that?‑‑‑No, I don’t think I did.

PN650

No. Didn’t think it was important to attend an application dealing with scope, given your members had expressed some concerns, as you state in your testimony this afternoon, that they had been telling you about it?‑‑‑I think it came back to Mr Crowley was representing his members. I don’t think we had any members that were covered by that particular application.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN651

On 4 July Tas Water actually made those applications for good faith bargaining orders. In your response, which is in one of your attachments in your reply statement, the CEPU’s response actually says, “The application is misconceived. Tas Water ought to have proceeded via section 240, bargaining dispute application.” Do you still hold that position?‑‑‑That would have been on advice from our legal guys.

PN652

Okay, but you’re an experienced union organiser. You understand what a section 240 application involves?‑‑‑You flatter me too much, Mr Dilger. Perhaps I don’t.

PN653

What if I were to tell you it involved the parties by agreement attending conciliation and mediation to deal with bargaining issues? Does that sound familiar?‑‑‑Yes.

PN654

Okay. But in paragraph 68 of your claim you say you had no option but to seek a scope order?‑‑‑If that’s what I’ve said that’s what I’ve said, Mr Dilger.

PN655

Okay, but you would be aware that you had an option to pursue a bargaining order under section 240 and you didn’t do that?‑‑‑Once again, I act under advice when it gets into that realm, on what we do and don’t in that regards.

PN656

But you would have at least received - and I’m not asking you to tell me your advice but ordinarily you would receive a range of options of what you could pursue. You ultimately have given the instructions to pursue the scope order?‑‑‑It was discussed - yes, it was discussed amongst ourselves and state secretary and our legal guys, yes.

PN657

Okay. On 9 July, TW15, we receive - and there’s a series of emails starting out from - if you go to page 6 it’s from Kevin Harkins. Mr Harkins - sorry, Mr Ash, have you go it?

PN658

MR ASH: Six pages in - - -

PN659

MS CLARK: TW13, it starts quite a few pages back.

PN660

MR ASH: Okay.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN661

MR DILGER: Mr Harkins says, “Please find attached the log of claims as compiled by the SBU.” So you get that document. So now you’ve finally provided it. Ms Garrott replies on 9 July, basically saying, “Thanks for the document but it was late. We haven’t had the opportunity to review it,” and that now there appears to be a significant additional claims and elements of the SBU log. Look at the points one: the SBU have still not provided a wage claim as part of this process. So here we are, 9 July; you’ve told us earlier on how important a wage claim was and still no wage claim in the log of claims?‑‑‑I don’t believe I did tell you how important a wage claim was. I think I told you that the company had put a position of roughly what the wage claim would be and there was an acceptance of that.

PN662

Now, I was not talking about the 3 per cent there; I’m just talking about in enterprise bargaining, I think the concession was that understanding wages is a very important part of enterprise bargaining because you need to know what the back page will be and how it flows on for allowances and so forth. That was the point that you agreed on?‑‑‑I suppose so, yes.

PN663

Then we’ve got in point two, your log of claims includes 18 items marked as new. Those 18 new items are wage and salary adjustments, private vehicle use, first-aid allowance, licensing and training, travel allowance, family violence leave, returning to work after a period of parental leave, returning to work part-time, individual flexibility arrangements, variation to working arrangements, emergency officer allowance, workload relief, laundry facilities, use of contractors, change and consultation, position profiles, approved training plans, extended leave scheme, corporate safety initiatives, attachment F, safety bonus table and fitness for work. So they are your new claims; nothing to do with three-regional scope, nothing to do with on call allowance, nothing to do with HSM, a bit to do with job security but that’s it, isn’t it?‑‑‑That was the claims, yes.

PN664

Yes, so once again, they all look like standard claims that you and I would negotiate in enterprise bargaining on a day-to-day basis?‑‑‑Yes.

PN665

They’re your document?‑‑‑Yes.

PN666

Yes? So that’s what you were seeking?‑‑‑Yes.

PN667

Didn’t have any problems putting those claims to Tas Water to have a look at?‑‑‑As I stated earlier, we put forward a number of claims to Tas Water that wasn’t acknowledged and we was getting frustrated with the process that they wasn’t acknowledged and we felt there was a degree of game-playing going on.

PN668

Okay. In point three, Ms Garrott says: “You’ve amended the existing claims and in some cases extended them without any explanation. In some cases changes attract change and in others, they’re not.” Do you agree the absence of track changing makes it very difficult in enterprise bargaining to see where parties have been and what they’ve changed?‑‑‑Yes, that’s correct.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN669

Turn over again so Kevin then replies on - sorry, Ms Garrott replies on the 15^th and at 116 and she says, “Let’s keep on talking.” Mr Harkins then writes back and says, on 144, “I’m sorry, Alex, I’m confused. I sent you the log. Have you mislaid it?” Ms Garrott then writes back and says, “Dear Kevin, it’s very difficult for Tas Water to continue to negotiate with a log of claims in its current format and lacking detail. Tas Water does not have the wages claim and therefore cannot proceed to cost allowances. The inability to cost claims makes bargaining very, very difficult at this stage of negotiations. Furthermore, presenting a revised and consolidated log of claims with changes and additions clearly as requested would prevent the issue of some of the SBU representatives not understanding what had changed from the previous versions and referring to multiple claims.” Ms Garrott had a particular problem with the meetings on the 10^th because in those very meetings, members of the SBU were oscillating between documents, your 9 July log and your 3 June log?‑‑‑Yes.

PN670

They also had different provisions as to what leave would be available between personal leave. You had some members seeking to uphold - and it’s in particular relation to employees notification requirements. There were some claims from the SBU seeking seven days’ absences before requiring to give medical certificates. There was another claim for three and there is another claim which is in the north-west agreement that none were required. They were the three options put by the members of the SBU?‑‑‑I think that’s reinforcing how difficult this agreement has been and how difficult it is with all the unions and their different interests in negotiating this agreement.

PN671

Okay. One last question: we now get to the email of Kevin Harkins at 649 and Mr Harkins - go all the way down to the bottom - starts off with a paragraph and he says this: “Now, while I try to be careful not to use offensive language as you are well aware in relation to your last paragraph who the fuck do you think you are talking to? You are not my mother, a judge or a copper. I’ve always treated you with respect. I expect the same in return. See you in the Commission and please share this with Commissioner Lee.” Was Mr Harkins’ behaviour appropriate?‑‑‑That’s something I believe you’ve had the opportunity to do, to request he be here. I can’t speak on Mr Harkins’ behalf and once again, nor do I have control of the emails he sends.

PN672

He speaks on your behalf, Mr Lambert, as the SBU - - -?‑‑‑He doesn’t with that email, Mr Dilger.

PN673

So did you take any opportunity as the CEPU to resile from those comments?‑‑‑I think - well, is it up to me to apologise for what someone says?

PN674

Hang on, they’re representing - - -?‑‑‑Are you saying that I’m the leader of the SBU and therefore have control over Mr Harkins, because that’s not the case.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN675

No. You previously have given testimony this morning that the SBU were permitted to talk on your behalf. You’ve previously given testimony that Mr Harkins was permitted and authorised to speak on behalf of the SBU. You’ve previously given testimony that you were able at any time to revoke his authority and even if you weren’t able to revoke his authority, where was the CEPU’s position in saying that was inappropriate?‑‑‑Well, Mr Dilger, all I can say is I’m responsible and happy to accept responsibility for what I say but I can’t accept responsibility or actually respond on what someone else says, no more so than you can.

PN676

Okay, so you’re quite capable when Mr Harkins puts documents out on your behalf - you’ve not resiled from any of those - but the moment he turns around he goes rogue and uses expletives, all the things you’ve previously identified were inappropriate workplace behaviour - you’re not distancing yourself from Mr Harkins and he doesn’t speak for you?‑‑‑I don’t endorse the behaviour or the language that was used in that email. I must admit that. But at the end of the day, it was something that was sent and I wasn’t looking over his shoulder when he sent it. If I had have approached Mr Harkins, being Mr Harkins, and said this, that and the other he probably would have told me to get so and so’d as well. That’s Mr Harkins’ email.

PN677

You’re CCd on to it, Mr Lambert?‑‑‑But that doesn’t mean I’m responsible for it, Mr Dilger.

PN678

You saw it?‑‑‑So did you, Mr Dilger.

PN679

Absolutely, I didn’t have to apologise to Ms Garrott because the SBU doesn’t speak for me?‑‑‑And I didn’t have to apologise either because I never sent the email.

PN680

I think that will do, Commissioner, for a break.

PN681

THE DEPUTY PRESIDENT: Thank you, Mr Dilger.

SHORT ADJOURNMENT [3.38 PM]

RESUMED [3.52 PM]

PN682

THE DEPUTY PRESIDENT: Mr Dilger.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN683

MR DILGER: Your Honour, conscious of time, what time would you like me to wrap up. Have you got a cut-off time?

PN684

THE DEPUTY PRESIDENT: Quarter to 5.

PN685

MR DILGER: Quarter to 5. Okay, thanks.

PN686

Okay, so let me take you to - on 18 July you were at the meeting when Lee C made his recommendations. They're all set out in TW17 and I'll just state them verbatim. You can go to them but I'll just read them out:

PN687

The parties meet at Campbell Town for the purposes of bargaining and I've talked about that. The bargaining representatives to confirm their membership or otherwise of the SBU.

PN688

So that's where we were talking earlier about are you in the SBU or are you not? Now, at this point no-one has ever come out and said, "We're not in the SBU anymore." The next recommendation is:

PN689

All parties will submit their agenda items in three days in advance and during meetings participants are required to respond to and give genuine consideration of proposals made by other bargaining representatives at the meeting, provided the proposals are consistent with the agenda. If the participant is unable to respond to the proposal at the meeting they shall indicate the reasons why they are unable to respond and nominate a date at which they could respond.

PN690

And then finally:

PN691

Provided the SBU receives the proposed classification structure within that time frame, the bargaining representative will provide to the employer their proposed wage claim and finalised log of claims for the subsequent scheduled weekly meeting. The finalised log of claims will identify changes made from the log on 3 June 2014 -

PN692

which we've already addressed. You've stated at paragraph 13 of your reply statement that you were very conscious of complying the recommendations of Lee C and that you did comply with the recommendations?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN693

Yes. Mr Lambert, you actually didn't comply with their recommendations of Lee C at all, and I get you to turn to TW47 which is referred to in Ms Garrott's materials and here is a summary of the recommendations and an assessment of your compliance. TW47?‑‑‑So that would be an assessment of Ms Garrott's interpretation of our compliance?

PN694

That's correct. We've got some documents that follow and we will go through them. They'll be TW48, TW49 and so forth. I will bring them to your attention as we go. Let's just quickly summarise where the compliance is. "We meet at Campbell Town," we get a tick for that. Confirm the membership of the SBU" - no-one came out and said they weren't in the SBU anymore. "Employer and bargaining representative to confirm attendance or otherwise at least three days prior to each meeting"?‑‑‑I believe that we, as the CEPU, did do that.

PN695

Okay. And I can concede that you, the CEPU, did do that, but other members of the SBU didn't do that. Would you agree with that?

PN696

THE DEPUTY PRESIDENT: Mr Dilger, comment there which is on the right-hand says, "No member of the SBU consistently complied with this requirement."

PN697

MR DILGER: I'll have to amend that. I think from Mr Lambert's statement that the CEPU could and did comply with that statement. So I'm happy to have that corrected, your Honour.

PN698

THE DEPUTY PRESIDENT: Yes. Well, I guess it will be for Ms Garrott to - - -

PN699

MR DILGER: That's right.

PN700

"Meeting chair alternates", we get a tick for that. Then "3, Submit the agenda items three days in advance." Now get to that one, turn to TW48, which is just over the page and on 1 September 2014 at 4.45, Alex Garrott writes to Kevin Harkins and in the second paragraph she said:

PN701

You have now requested that Tas Water again vary the set meeting arrangements for this week, Thurs 4/9, this time to allow SBU organisers to attend a Launceston or Devonport rally which we understand at 12.15.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN702

Mr Harkins replies, "Very big of you, Alex. If it's difficult we can cancel." So if the failure to provide the information and meet the meeting requirements in that one. You concede that?‑‑‑No, I don't. The company was notified, I believe it was a little bit open and shut than that. We actually - we was actually honest. We told them there was some Rights At Work rallies on that we was - we wanted to attend. There was some trepidation by the company that they would let us do that and we understood under Lee C's recommendations that should the company hold firm on that we may well not have been able to attend the rallies, but thankfully the company as a sign of good faith of that opportunity did let us go, but there was a little bit of argy-bargy in regard to it, I just admit.

PN703

Okay. TW49, turn over the page. So this time responding to you at 230, Alex Garrott writes, "Hi Todd", then miss that paragraph, miss that paragraph. Third paragraph:

PN704

Tas Water has not yet received the SBU's agenda items for this week. At your discretion a review of this document may be included as part of the agenda. Please advise.

PN705

Mr Harkins on behalf of the SBU writes back

PN706

Alex, as I told you, I will provide the agenda items after tomorrow's union caucus -

PN707

which is not consistent with submitting the agenda three days in advance?‑‑‑Yes.

PN708

Okay. If you turn to TW50, and down the bottom there's an email from Danielle Clarke to Ian Nelson. It says, "Hi Ian, I'm interested in your opinion," but this is the important one:

PN709

For this week so far only we have the CEPU, Michael (indistinct) Rochelle as the only ones who have advised their attendance or otherwise.

PN710

Miss the next two paragraphs and it says:

PN711

On top of this, we have no agenda and don't look like getting one any time soon,

*** TODD EDWIN LAMBERT XXN MR DILGER

PN712

which is clearly not in line with the recommendations of the Commissioner. So the CEPU has provided their attendance, but - I'll scrap that question, sorry. Mr Lambert has already identified that they were attending. That's probably more a question for Mr Washington, Mr Flanagan and Mr Crowley?‑‑‑I think, if I may, Mr Dilger, I think that highlights how difficult it is to corral not just the agreement, but the seven unions together to do it with. From our point of view, we was very conscious as I stated, and we tried to uphold - but once again, I find it very hard to speak on or behalf of other unions in regards to this. Yes, we were acting as SBU, but I still have no control over individuals and how they wish to portray or act in this process.

PN713

We go now to - I'll leave those ones, but let's go to TW53. So this is again a media release you've put out. It's a little bit difficult to see, and in the first paragraph it says:

PN714

A union representing many of Tas Water's field staff describe the company as being out of control and in need of leadership.

PN715

Skip that next paragraph, skip that next paragraph. It says:

PN716

In the past fortnight, Tas Water have ignored a recommendation given by Fair Work Australia on 18 July that they produce a proposed classification structure for the newly merged business within three days of the next scheduled meeting. So to this point we are still waiting.

PN717

So you put that out on 4 August?‑‑‑Yes.

PN718

And you stand by those comments that you never receive the classification structure?‑‑‑From my memory, yes.

PN719

So if you go to TW46, Ms Garrott writes to you and all other members of the SBU on 21 July at 3.54 pm which is three days within 18 July. She says,

PN720

Consistent with the comments at the FW scope conference we are willing to consider the inclusion of the senior technical team members and this will be discussed with Luke Crowley.

PN721

And it also says:

PN722

Attached is the classifications document that Tas Water distributed at the classifications small meeting group. The track changes and notes in the document reflect how it has been presented previously.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN723

So when you said you hadn't received the classification structure as required by Lee C's recommendation, that's incorrect?‑‑‑It would appear to be so. It would appear to be so, that's correct, by looking at that, but also the company never sought to - I know a couple of times throughout these negotiations we've sought clarity from the company and they never sought to pull me up on it at the time wherein I could issue an apology.

PN724

Okay. Going back to TW53, your words again, and it's in the fifth paragraph just above the dot points.

PN725

At an EA meeting in Campbell Town held on 24 July and in an attempt to break the negotiation deadlock, unions put forward a without‑prejudice proposal which consisted of the following: paid quantum of CPI only, best of the best job security clauses taken out of the three merging water corporations.

PN726

Then 3, your agreement:

PN727

No Tas Water employee will be worse off in the transition of the new agreement -

PN728

and,

PN729

Inclusion of staff below direct manager level onto the EA.

PN730

Now that last bullet point is important, Mr Lambert, because that's all about the single scope that Mr Crowley was pursuing. You've talked earlier about how you were only putting out what your members were telling you. And here's your document on 4 August and you've got nothing that relates to a three-regional agreement?‑‑‑That's correct, but the inclusion of the staff under direct manager level of EA - because when we put that with our previous proposal to the company at Campbell Town, Mr Crowley was insistent, because he'd been fighting that scope order that you've raised before that added on to it. Once again, you can keep throwing at me that we never raised scope over scope order. I can only go back to my original statements in regards to that.

PN731

Okay. On the 24th of July, you emailed Alex Garrott. Let's go to TW18. You say at 3.06 in an email,

PN732

Alex, as discussed at today's EA meeting at Campbell Town the SBU put forward the following without-prejudice offer. The SBU seeks a full response to our proposal, both verbally and formally at next Thursday's meeting which is the 31st.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN733

And underneath that on the next page, you've got the SBU proposal and it says:

PN734

Pay quantum at the rate of CPI. Best of the best clauses. All staff below Diem level -

PN735

Which is departmental level,

PN736

Included in the negotiated EA, a three-year deal.

PN737

And then,

PN738

No employee worse off.

PN739

So you've reiterated your earlier points there. So at that time, that's what you are actually seeking to have negotiated?‑‑‑That was a proposal that we put on the table in the hope of breaking the deadlock, yes.

PN740

If you then go to TW66, that is that meeting of the 31st and Tas Water provided a document which basically included matters they could agree to, they marked a "yes", matters they needed to discuss further they produced a question mark and matters they couldn't agree to, they marked with an "N". Do you recall that occurring?‑‑‑Possibly yes, I do. I think I recall that.

PN741

Now, at that meeting, Ms Garrott put that to you and you said "It has to be accepted in total. It was not negotiable." It was a "take it or leave it" offer?‑‑‑Did that come out of my mouth?

PN742

Yes?‑‑‑I'm not - I think we put a without-prejudice proposal on the table. As for the words "take it or leave it", I think it was assumed that it was an offer put on the table in order to try and break the deadlock. If it wasn't accepted, we were back to square one.

PN743

But it was an offer that was capable of being accepted?‑‑‑Well, we'd hoped at that point in time, but we still had other issues and it was unresolved. I think it's fair to say that at that point in time there had been a lot of water passed under the bridge and we'd sat at the table for a long period of time and were trying to get some movement, because what we've seen from the company to that point in time was just, "No, no, no. This is how it is." So I guess it was the discussion that was trying to move it.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN744

Okay. We then move onto the meeting on 7 August which is IN19. At that meeting, the following items were discussed: disputes resolution clause, annual leave in advance, handling sewer matter, adverse working conditions, superannuation, job security, contractors and labour hire, consultation and flexibility arrangements?‑‑‑Tas Water's document, yes.

PN745

Don't recall negotiating something different, Mr Lambert?‑‑‑Going back to August 2014, I can't give you anything in clarity, Mr Dilger, because that was attached.

PN746

One of the results was that the DSP got put on the table and you were negotiating the Northern agreement's DSP, which is a status quo anti clause?‑‑‑That's correct. That's been a sticking point throughout the whole process.

PN747

Yes, okay. One of the other results was that Tas Water agreed to include a broad provision for leave in advance, which was in line with the Northern agreement?‑‑‑Possibly, yes.

PN748

But you were unable to agree with matters such as flexibility, contractors, labour hire and you decided to part those?‑‑‑No, because once again, yes, matters were part because this is where we started to strike a difference where unions started negotiation on things that were relevant to their members only and losing interest on things that weren't.

PN749

Okay. Now, it's noted here that the handling sewer matter allowance was unable to be progressed, because Robert Flanagan or the AWU noted that his delegates that had the specific expertise in the area weren't present for the meeting?‑‑‑I think that just highlights the statement I just said where the other unions were starting to break away, for lack of a better word, of the SBU and pursuing their own agenda for their own members, which you'll respect.

PN750

But Mr Flanagan is surely not the only person who can talk about HSM?‑‑‑But once again, it's hard for us to speak on behalf of these employees which were greatly affected and it's quite hard when you are dealing with negotiation, wherein you're talking about clauses - left speaking on behalf of other unions that aren't present.

PN751

Mr Lambert, the SBU's position on handling sewer matter didn't even relate to a specific region. You wanted it for all employees?‑‑‑Mm.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN752

So why do you need to be of a specific region or of a specific union to deal with that?‑‑‑Look, I guess, to be honest, I don't know how to answer the question, Mr Dilger, in terms of there's different clauses, different things affect different regions. Perhaps it doesn't, I don't know.

PN753

Okay, but your claim is - do you dispute your claim - the SBU's claim wasn't for all the employees to be covered by the HSM?‑‑‑I think so, yes.

PN754

Okay. On 14 August there was another bargaining meeting and you discussed matters such as job security and again DSP was discussed?‑‑‑Possibly, yes.

PN755

On 21 August, you had another meeting. You were discussing you got in principle agreement with first aid and living away from home?‑‑‑Yes.

PN756

On the 28th, that's when you had the rally, and so not everyone could attend, but you had a little discussion on adverse working conditions and dirt money, but no agreement was reached?‑‑‑I think so. I'm not sure. Were we still in the small breakaway groups then or was we in one room? I can't remember.

PN757

MS CLARKE: No, this was the one when we changed to venue from Campbell Town back to Hobart because of the rally?‑‑‑Was it, all right. Yes, so we wasn't all in the one room?

PN758

Well, everyone that was going to attend was there?‑‑‑Yes.

PN759

MR DILGER: On 28 August, Ruby Thomas Thompson of the CEPSU emailed an 86-page document as a log of claims which was the same document that Kevin Harkins had originally lodged with Alex Garrott on 9 July advising that was now your updated position?‑‑‑If it's there, yes.

PN760

Yes. On 29 August, and I take you to TW19. This is a letter that Alex Garrott emails to Kevin Harkins, in the summary of the letter you might recall, Mr Lambert, is she says:

PN761

Bargaining has been slow and let's change things up a bit. Let's have the SBU directly negotiate with Tas Water decision-makers at general manager level, including CEO Mike Brewster.

PN762

Do you recall that occurring?‑‑‑I'm just looking forward TW19.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN763

Yes, so it's a letter from Alex. It's an attachment - a letter to Kevin Harkins on 29 August?‑‑‑Yes, I've got the letter. Yes.

PN764

Do you recall that occurring? That's how the next phase of bargaining commenced? I'll give you a minute just to quickly read it. Apologies, Mr Lambert?‑‑‑I think - yes , I think this was where the CEO Mr Brewster stepped in and the main subject was the sticking point of the dispute resolution clause.

PN765

Okay. And then if you turn to TW20, Ms Garrott and Mr Harkins have another disagreement. Ms Garrott asks Mr Harkins to limit the numbers of delegates to seven, including those members of the SBU who wanted to attend and Mr Harkins wants double that number, 14. And again, we have the use of the expletives. Mr Harkins is quoted as saying, "Don't be so fucking dictatorial, Alex. If it was 10 years ago, I would have told Tas Water to fuck off and took it to the trenches."

PN766

MR ASH: Your Honour, it's been happening all day, but Mr Lambert cannot attest to the authenticity of either a file note or what occurred. I'm not sure what the purpose of his evidence is and it's been happening quite a bit, and I've kept quiet, but it's really a question of - well, Ms Garrott's provided it in her statement. I don't know if it's really a fact in dispute that she created this file note. I don't understand what we're doing.

PN767

THE DEPUTY PRESIDENT: Can you help us, Mr Dilger?

PN768

MR DILGER: It goes to my earlier question relating to Mr Lambert and who speaks on behalf of the SBU. We've got a group who are actually coming out and saying, "We are the figure head for it. If Ms Garrott speaks on behalf of Tas Water or Ms Garrot speaks, we're not getting questions as to whether she speaks on behalf of Tas Water or not, it's taken as implied. I established earlier on that Mr Harkins was that figurehead.

PN769

He was able to speak on behalf of them. Now, whether we like it or not, when Mr Harkins speaks on behalf of the SBU, Mr Lambert is here as part of that SBU trying to make an application, saying the body of all of those people have a problem with scope and I'm demonstrating that Mr Harkins is behaving in a manner which frustrates the course of conduct of bargaining. That's the reality and reasons why it's important for you to consider.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN770

I agree with Mr Ash in terms of it's a question of credit. You can have that assessment, but that's where it's going?‑‑‑In response Mr Dilger, I do believe there is a degree of corralling going on here. I mean, I've never - no-one has raised this with me. The first time I've seen it is now. I don't know how I can respond to that, considering the first time I've heard of it was here. I know you're going to say I've had the opportunity to look at it, but I - I have no control over what phone conversations are said or anything and that's - to be blunt, I'm sorry, but it's a hurt feelings email. I really don't know how to respond, I'm sorry.

PN771

The only question you need to do - I'm not suggesting you need to take on the position of Mr Harkins. The personal acrimony between Mr Harkins and Ms Garrott caused delays in bargaining?‑‑‑Well, I can't understand why Mr Harkins - - -

PN772

THE DEPUTY PRESIDENT: Are you putting it as a question?

PN773

MR ASH: It's a question that's been put before and answered

PN774

MR DILGER: Yes, as a question - - -?‑‑‑?‑‑‑Yes, I'm not aware of the relationship between Ms Garrott and Mr Harkins. Obviously, Ms Garrott will be on the stand tomorrow and she will be able to testify to that, but also Mr Harkins, I guess, you've had the opportunity to summons Mr Harkins here to answer these questions as well, but I'm unable.

PN775

Well, it's not my application, Mr Lambert. Mr Harkins wanted to push it through. He could have been here. Let's go through - getting to 12 September, getting an in principle agreement reached on contractors and the labour hire clause, do you recall that?‑‑‑Yes.

PN776

On 15 September, so we're still dealing with the SBU and the GNs, you dealt with the following clauses: union delegates entitlements, annual leave, annual leave loading, long service leave, ordinary hours of work, overtime, pay progression, and you made some progress?‑‑‑Yes. Yes, some meetings we did make some progress. I think everybody concedes that there was some progress made. Obviously not to the satisfaction everyone would have liked.

PN777

On the 15th, one of the points though, whilst you made progress on that, you didn't make any progress on HSM, because at that time the SBU had not finalised its claim relating to HSM?‑‑‑ I'm unable to answer that, I'm unsure.

PN778

On the 18th there was a further meeting and this time you're discussing redundancies, job security, delegates, on-call arrangements, HSM and that meeting has no progress.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN779

THE DEPUTY PRESIDENT: Do you agree?‑‑‑I take your word on that, Mr Dilger, yes.

PN780

MR DILGER: On the 23rd, you've got another meeting and this time we're discussing classifications, union delegates, on-call, HSM again and this time you get some draft clauses for review and circulation amongst the participants?‑‑‑That sounds correct, yes.

PN781

On the 26th, a whole range of protected industrial actions; so your organisation was someone who had taken protected industrial action?‑‑‑Yes.

PN782

On the 30th, back into this meeting, but this time on the 30th, you agree to a position where you have a week lock-in?‑‑‑Yes, that's correct.

PN783

And one of the aspects of that, you said, "We're going to set aside two hours each day and that's to deal with the issue of the extended scope of people below departmental manager"?‑‑‑Yes.

PN784

At this stage, in the lock-in meeting, there's no discussion of a three regional scope going on?‑‑‑No. No, there's not.

PN785

Okay. So the other part that's important in this, Tas Water advised the SBU, "Our intention is at the end of this lock-in period" - you set aside a week to do it, "we're going to put the agreement out to vote. That's where we think we are heading with it"?‑‑‑That's correct and we told Tas Water that it was doomed to fail miserably, which it did.

PN786

You didn't tell them before the lock-in, you told them after the lock-in?‑‑‑No, we told them at the meeting, "This will go down."

PN787

No, I'm talking about the position - so I understand you actually at the end of the lock-in period, you said, "If you put this out to vote, you'll fail, but at the start of the lock-in period - - -?‑‑‑We was hopeful.

PN788

Yes, everyone was hopeful?‑‑‑We was hopeful, but because there was fundamentally no change into what we walked into, we've made some progress. But there wasn't enough change to progress it enough for employers to be confident in it and it was quickly apparent at the end of it that it wasn't going to happen.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN789

Go to TW22, which is the SBU combined update. So it's headed up, "Your industrial action worked. Well done." The second paragraph, "By taking industrial action you forced Tas Water back to the table to recommence negotiations. Well done." And then under the next heading you say this:

PN790

Commitment to lockdown. For a full week in an attempt to finalise a draft agreement for you to consider voting on. This will occur from 14 October to 20 October. The time between now and the 14th is needed to prepare and consolidate a single agreement from the last six months of meetings.

PN791

No mention of a three regional scope?‑‑‑No, because we were going in there to try and get an agreement. It would have been unfair to say that we was going in there and we was going to try and do anything but try and reach an agreement, as per Tas Water's wish - that's what they wanted.

PN792

And the matters you are talking about is HSM, RDOs, classification, pay increases, progression, union delegates, leave, on-call, shift work, definition and application, coverage, inclement weather, job security, meal and rest breaks. Again, all fairly standard clauses that would be contained in an enterprise agreement?‑‑‑Correct.

PN793

So when you get to what are the outstanding items, the actual issues to be delivered - they're quite small at that stage. That's not a lot of matters to actually resolve?‑‑‑No, but they were small - they was quite small, the number, but what was there was very important to our members.

PN794

But the usual course a bargaining over your experience, Mr Lambert, would be that you start off, no-one agrees to anything, you start getting some movement; there's a couple of items that remain - you know, a handful of items rather than a couple that remain outstanding and ultimately that's what the parties get stuck on; that's where the real bargaining commences?‑‑‑That's correct.

PN795

Okay. So on 3 October Professionals Australia actually submit a bargaining application and you weren't a part of that, were you?‑‑‑No.

PN796

No. Now, in your Facebook updates relating to the lockdown, starting with TW23, let's just have a quick run through on the types of items that you're talking through. I think we've dealt with them - in fact, we have. I won't proceed with that. I've asked and you have answered those questions, Mr Lambert and they're already contained in there, but they're all set out in your Facebook pages. On 24 October, that's when the access period opens for the general and senior enterprise agreements?‑‑‑Yes.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN797

On 28 October, you undertook some more protected industrial action?‑‑‑Yes. I've no reason to doubt you.

PN798

On paragraph 20 of your reply statement, you state that at the time of taking protected industrial action your members did not care about the scope of the agreement at this time. That's 28 October, paragraph 20 of your reply statement?‑‑‑Yes, I think, to reiterate that, to be honest, they was just over it and as the comment below it said, they just wanted to not be any worse off.

PN799

On 5 November, we open for the voting?‑‑‑Yes.

PN800

I'll leave those. That's for Mr Crowley. On 13 November, you got a no vote in both the senior and general EAs?‑‑‑That's correct.

PN801

On 13 November, turning to TW30,. Mr Crowley on behalf of the SBU basically writes to Ms Garrott, Tas Water, and says, "We want to meet." And it says, again for clarity, "If Tas Water seeks to continue and avoid negotiations then we would seek assistance from the Fair Work Commission to facilitating a bargaining process, because Ms Garrott - sorry, I'll start again on that. That's incorrect. On the 13th - if you turn over the page on page 2, Luke Crowley on 13 November at 2.23 - - -

PN802

THE DEPUTY PRESIDENT: What tab are we on, Mr Dilger?

PN803

MR DILGER: Sorry, TW30.

PN804

THE DEPUTY PRESIDENT: Yes.

PN805

MR DILGER: Mr Crowley on the day of the vote says:

PN806

Here are two options for a meeting date, Thursday 20 November and Friday, 21 November. Looking forward to your response.

PN807

Ms Garrott replies to that about half an later, to the SBU:

PN808

We have received requests from various unions to return to the bargaining table immediately following the no vote. Tas Water is considering the vote outcomes and our position prior to returning to the negotiating table.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN809

And then Mr Crowley responds on Friday 14 November saying, in the second paragraph:

PN810

For clarity, the unions seek a specific date to meet and discuss how to progress negotiations for Tas Water staff conditions. There is a significant amount of detail to be addressed, including meeting schedules, location and agenda. We are also happy to provide extensive feedback on how Tas Water could improve its offer to ensure a yes vote.

PN811

So Mr Crowley on behalf of the SBU is saying, "We'll tell you where things went wrong and we'll give you some feedback"?‑‑‑Which I believe was rejected by Tas Water.

PN812

Okay, so let's go to TW31. On Friday 21 November, Ms Garrott writes to you saying,

PN813

Dear unions and bargaining representatives, Tas Water proposes the following meeting dates. I will book the venue.

PN814

Agree with that?‑‑‑Sorry, which one is that?

PN815

TW31?‑‑‑Yes, TW31. Yes. "Should I not receive other advice." Yes.

PN816

Okay. And then on 24 November 2014, there's an industrial action notification, TW32. It's the CEPU's document. You say,

PN817

Feedback from our employees have prioritised the following issues: job security, DSP, outsourcing work to contractors, consultation, on-call, proposed shift work arrangements, redundancy clause, just to name a few.

PN818

?‑‑‑Yes.

PN819

No mention of three regional scope?‑‑‑No.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN820

No. On the 14th - sorry, in paragraph 46 of your statement, you indicate that the SBU conducted survey which indicated the most important items to employees were no loss of conditions and no individual being disadvantaged by a move to the replacement agreement?‑‑‑Yes, and I understand Tas Water run their own survey and not surprisingly, their feedback was a lot different to ours.

PN821

Okay. Where is your survey, Mr Lambert?‑‑‑I haven't got it with me at the time.

PN822

No, but - - -?‑‑‑Mr Crowley might be able to assist you with that since he was the one who organised it.

PN823

Okay, but it was on behalf of the SBU that it was conducted?‑‑‑Yes.

PN824

Okay. So you polled all the SBU affiliate members' members?‑‑‑Yes.

PN825

And did you get - how was that survey conducted?‑‑‑By an online survey.

PN826

Okay, but - we'll seek - but you haven't got a copy of it and it's not in the papers and I haven't seen a copy of it?‑‑‑No, we never printed it. It was an online survey and I haven't got a copy of it, no.

PN827

Okay. So you earlier said that Ms Garrott rejected Mr Crowley's offer to provide extensive assistance?‑‑‑I believe she did so, yes.

PN828

Have a look on TW33. Now, on 25 November at 3.03 pm, Ms Garrott writes to all of the SBU members and says, We acknowledge the response provided by the CEPU and it says this:

PN829

On 14 November 2014, Luke Crowley stated the unions were happy to provide extensive feedback on how Tas Water could improve its offer to ensure a yes vote. Accordingly on 17 November, Tas Water on the understanding that this feedback was available requested this information. The information requested forms just one aspect of the feedback/information that Tas Water will be required to consider as part of its own assessment. As of the date of this email, the requested information has not been provided, nor has there been any explanation as to why it can't be provided. Tas Water require this information to meaningfully proceed with the meeting for Dec 2014.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN830

That doesn't look like a rejection of Mr Crowley's offer at all?‑‑‑In response to that, Mr Dilger, I believe via conversations that we had between Ms Garrott and Mr Crowley, the company indicated that they were going to run their own survey and therefore it was felt that, "What's the point? If they're not going to have a look at ours, what's the point of putting it over. I don't know whether that information was handed over, as Mr Crowley was in charge of it, but yes.

PN831

MR ASH: Just for example, your Honour, this questioning is eliciting answers that hearsay, because this is not the person to be asking these questions of.

PN832

THE DEPUTY PRESIDENT: TO the extent Mr Lambert said that he understood that the offer of that advice was rejected by Ms Garrott, I think it's a open question.

PN833

MR ASH: Sure, okay. Well, (indistinct) is the only evidence?‑‑‑Mr Crowley would be in a better position to answer that question.

PN834

THE DEPUTY PRESIDENT: I'm sure that's the case.

PN835

MR DILGER: Mr Crowley responds and you're included in there, Mr Lambert, that - and it actually says again that we're happy to provide the rundown of the issues?‑‑‑I'm not sure whether that was eventually provided to Ms Garrott or not. As I said, Mr Crowley was charged with the survey and I'm not sure - I'm not privy to whether that was eventually passed on or not.

PN836

It's actually a letter and it says, "Dear union and bargaining representatives"?‑‑‑I know.

PN837

It's not a letter to Mr Crowley?‑‑‑I know, but I'm not sure what happened in that space. I didn't handle that side of it.

PN838

Okay?‑‑‑There were things that I dealt with and things that I didn't deal with and that was not one of them.

PN839

THE DEPUTY PRESIDENT: I think there's two different issues, isn't there? There's the question of the union survey and there's also the purported offer from Mr Crowley to provide feedback as to why the vote went down. The two aren't necessarily the same.

PN840

MR DILGER: No, they're actually seeking both though, your Honour, so Tas Water's position is we want to see the survey which until today we still haven't got, so I haven't seen that. And the second one is feedback. So if you haven't got a survey, we will still deal with feedback. That's the question.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN841

Ms Garrott specifically seeks that information to be provided for a meeting, so it's quite clear in that letter highlighted with some underlining and bolding by saying:

PN842

Please provide me with an email no later than five p.m. Friday, 28 November, 2014.

PN843

So you provided nothing to Ms Garrott?‑‑‑I didn't. Whether Mr Crowley did, I don't know. He had access to that email and the control of the survey, so I did not have the - what do you call it - the utilisation to be able to do that - to access those results.

PN844

Mr Crowley does reply back and we've dealt with this before, so I won't deal with that again. That's the email on 1 December where he sets out the 22 priority items where Mr Gould identified that they were your "die in the ditch" items. So I won't readdress those. On 4 December, there was a bargaining meeting at Campbell Town and the SBU provided - now we've talked about this before, the SBU provided a proposal to Tas Water and said, "There you go, that is an offer capable of acceptance"?‑‑‑Yes.

PN845

And Mr Crowley said, "We haven't got it for you in a Word document. I'll provide it to you," and he ended up providing those documents on the 8th of December. That's in TW36. He writes back to Ms Garrott at 11.56 am and says,

PN846

A quick bit of background. These are the documents presented to you on Friday. I've made some changes to reflect the negotiations we've had on the day. Documents have also gone out to the SBU who have added some changes. I can answer some questions about the reasons for some of the changes.

PN847

So that's basically - and then he comes in and says:

PN848

These documents are best seen as something that would guarantee Tas Water a vote of yes to an agreement. As discussed at the negotiations, some clauses may not be required if others are agreed, the job security, uncapped redundancy, in the general agreement and the use of Mercer points versus the provision of the Mercer documentation in the senior agreement are good examples.

*** TODD EDWIN LAMBERT XXN MR DILGER

PN849

So on 8 December, you've got Mr Crowley on behalf of the SBU has said, "This is - we presented something to you on the 4th. I didn't give it to you in a document (indistinct) now another version of it and, in actual fact, I've amended it." Correct?‑‑‑(No audible reply.)

PN850

Your Honour, I'm conscious of now getting very close to your time. You may want me to finalise up here. I would only have perhaps half an hour for Mr Lambert in the morning. I'm happy to wait overnight to do that and see Mr Lambert first thing, 10.30 or - - -

PN851

MR ASH: Yes, I will also have some questions in re‑examination, so I think - - -

PN852

THE DEPUTY PRESIDENT: Yes, we're not going to finish Mr Lambert tonight. We will resume at 10.30 in the morning.

PN853

MR DILGER: Thank you, your Honour.

<THE WITNESS WITHDREW [4.43 PM]

ADJOURNED UNTIL FRIDAY, 15 MAY 2015 [4.43 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TODD EDWIN LAMBERT, SWORN............................................................... PN100

EXAMINATION-IN-CHIEF BY MR ASH........................................................ PN100

EXHIBIT #TL STATEMENT OF TODD LAMBERT, WITH ATTACHMENTS PN114

EXHIBIT #TLR RESPONSE STATEMENT OF TODD LAMBERT.......... PN114

CROSS-EXAMINATION BY MR DILGER..................................................... PN118

THE WITNESS WITHDREW............................................................................ PN853

Fair Work Commission Transcripts

B2014/1735, Transcript of Proceedings [2015] FWCTrans 330 (11 June 2015)