B2015/535, Transcript of Proceedings [2015] FWCTrans 331 (11 June 2015)

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PN1

THE COMMISSIONER: We’re on record, so I’ll take the appearances in the matter, please.

PN2

MR P GARRETT: Thank you. Good afternoon, Commissioner. On behalf of the Maritime Union of Australia, Garrett, initial P. With me I have Branch Secretary McAleer, M-c-A-l-e-e-r, initial P. Also from the Sydney Branch, Drane, D-r-a-n-e, initial C.

PN3

THE COMMISSIONER: Thank you.

PN4

MR S McCARTHY: If the Commission pleases, McCarthy, initial S for Steven. I appear in these proceedings as a bargaining representative for the respondent employer. Commissioner, I don’t know if it’s necessary or required of me by you but I do have a copy of the letter of appointment if that is something you would desire to sight. Separately I have appearing with me also is Mr Richard Ford, who is a director of Manly Fast Ferry, the respondent employer.

PN5

Perhaps I should just observe that – and, again, I may need some assistance and direction from the Commission – Mr Ford if necessary would be prepared to be sworn in as a witness. He hasn’t the opportunity to prepare a witness statement but if that were to be the case that he would be given the opportunity to be sworn in as a witness, my first question would be should he be excluded until we get to that point in the proceedings, from the court.

PN6

THE COMMISSIONER: We might deal with permission first of all.

PN7

MR McCARTHY: Certainly, Commissioner.

PN8

THE COMMISSIONER: That might be the first thing we need to address.

PN9

MR McCARTHY: Yes, I understand.

PN10

THE COMMISSIONER: Yes. Is there any objection taken to Mr McCarthy appearing in the matter?

PN11

MR GARRETT: Thanks, Commissioner. Initially we would have had the strongest of objections and say that permission to appear shouldn’t be granted pursuant to section 596(2) but I note the correspondence this morning which I certainly haven’t had time to properly digest. But it appears that Manly Fast Ferries have appointed Mr McCarthy as a bargaining representative to circumvent section 596(4)(b)(iv) to get around leave to appear.

PN12

The only thing we would say to that is, it would have been nice if that was done prior to the enterprise agreement negotiating meeting that took place last Friday, and certainly there was no formal position put forward. I think it’s cute for want of a better term, to put that on this morning, to simply circumvent the permission to appear. They have already participated in meetings as a legal representative and not as a bargaining agent, and we question whether that’s valid or not.

PN13

THE COMMISSIONER: That introduces a degree of complexity. Something that might take a bit of time to argue out.

PN14

MR GARRETT: I’ve got the time.

PN15

THE COMMISSIONER: I’ve not encountered that position before where – you see, we received a Notice of Representation commencing to act from Mr McCarthy as a solicitor, and now I understand you seek to appear in the matter as a bargaining representative. Is that right?

PN16

MR McCARTHY: That’s correct, yes, because the company had made the decision that given the general direction and thrust of the negotiations and they were virtually only yet to start and it’s already become very difficult and, in its view, confrontational, it made the decision that it might be appropriate to appoint me as a bargaining representative so that each - - -

PN17

THE COMMISSIONER: To avoid the problem of permission?

PN18

MR McCARTHY: No, not at all.

PN19

THE COMMISSIONER: No?

PN20

MR McCARTHY: To ensure that at no point in time can the union in its capacity as a bargaining representative can seek to exclude myself in assisting the company in the bargaining process itself.

PN21

THE COMMISSIONER: Yes.

PN22

MR McCARTHY: I only say can I – for want of a – such an experience, and I’m not talking about the New South Wales branch of the MUA, but such an experience or event has occurred in the past in relation to a fellow solicitor from my own firm in relation to negotiations previously in the maritime sector, with the same union but it’s the Western Australian branch.

PN23

THE COMMISSIONER: So this question has been decided before as to whether you don’t need permission if you become a bargaining representative after having initially become – after initially filling a notice of commencing to act, and then you become a bargaining representative – has this been decided before?

PN24

MR McCARTHY: I wish I could answer that question. I’m not aware of what the case law is on the matter.

PN25

THE COMMISSIONER: But the application is opposed. I think we confirmed that on Friday.

PN26

MR McCARTHY: That’s correct, yes.

PN27

THE COMMISSIONER: Mr Ford is going to give evidence as part of an evidentiary position against the application.

PN28

MR McCARTHY: In support of the company’s position in opposing, yes.

PN29

THE COMMISSIONER: Why wouldn’t a witness statement have been prepared and provided to the other side?

PN30

MR McCARTHY: Simply because of lack of time availability.

PN31

THE COMMISSIONER: Right.

PN32

MR McCARTHY: I think we received the union’s witness statement at something like 4 o’clock on Friday afternoon, and unfortunately with all the other burdens that Mr Ford has in front of him, he’s simply not been available for me to assist him in the preparation of a witness statement.

PN33

THE COMMISSIONER: It’s going to make it difficult, isn’t it, if a person gets in the witness box not sure what it is they’re going to be saying and giving as evidence.

PN34

MR McCARTHY: We do appreciate that. Look, we do appreciate that. We also though make the observation, and I understand this is the way the Act is structured and so it’s nothing within the control of yourself as an individual member of the tribunal or the tribunal at all, and that is that these matters come on at very short notice.

PN35

The second part of the relevance of the structure of the Act is that in – it is a burden upon the applicant itself to establish its position for a successful application for the order in relation to the ballot, and the respondent employer is left only to be able to do what they can to scramble about to determine, if they do decide to oppose it and defend it, to put together as quickly as possible whatever material they can, and that’s both a technical aspect of an argument and, in this case, the unanticipated outcome of the calling of a witness.

PN36

THE COMMISSIONER: Are you aware of this other matter that also probably adds to complexity here, a communication from the Australian Maritime Officer’s Union?

PN37

MR McCARTHY: No.

PN38

THE COMMISSIONER: Mr Garrett, I think you’ve been copied in on that.

PN39

MR GARRETT: Just one moment, Commissioner. Yes. There has been an email come in this morning but with respect to that, that doesn’t add any complexity. This is an application by the Maritime Union for a PAB. If the AMOU wants to seek relief, they have the capacity to do so, and the Act specifically provides for it. It should have nothing to do with leave to appear.

PN40

THE COMMISSIONER: It introduces this potential, that correspondence from the Australian Maritime Officers Union suggests that the nature of the group of employees to balloted involves people who would not be eligible to be members of the Maritime Union of Australia.

PN41

MR GARRETT: I’m aware of that there but with respect to that, we can certainly lead evidence in any form that we represent categories that have been put there in our application, but regardless of that position, that’s an email. They’ve certainly got the opportunity to attend, which they’ve chosen not to do. We do have a right to press ahead with our application and should they believe there’s a concern which relates to scope, it’s well within the AMOU’s purview to follow their own application with either, one, respect to a protected action ballot for their own members, should they have members – should they have members. Secondly, they have the right file a scope application and their relief is within the Act then, but that doesn’t impact on us seeking the right for a protected action ballot.

PN42

THE COMMISSIONER: I think it goes to the question of whether I would be satisfied that the requirements in terms of genuinely trying to reach an agreement, are met.

PN43

MR GARRETT: Arguably then if that was to be within the Commission’s consideration, the AMOU would put someone here today to press that case, as opposed to deliberately frustrate it, as what we’re seeing here with respect to the discussion. We’re a bit hampered. A form 53 was filed on Friday with notice to act, and now the notice to act has transferred into a bargaining representative on behalf of the company.

PN44

Now, we entered into negotiations – when it comes to good faith bargaining, we may be in a position to seek other orders with the Commission following this hearing either way, as to get some clarity on who actually represents the company, because we’ve already attended meetings where Mr McCarthy was put forward by Mr Ford in correspondence as a legal representative of the company, which we accepted. But if it now moves into bargaining agent to deliberate frustrate section 596(2), then that should be taken into consideration by the Commission.

PN45

THE COMMISSIONER: You see, I’d need to hear everyone’s argument on that, if it’s a question that’s going to be contested, in the same way that I think I’d be obliged to hear about this issue of what is said to be a defect in the matter. That is that, the group that you propose to be balloted in the order would include people who are ineligible members of the MUA. Now, the Commission wouldn’t be disposed to make the protected action ballot order which involved people in that sort of circumstance.

PN46

MR GARRETT: I just think they’ve found a very creative way, Commissioner, to frustrate any protected action ballot movement, because now all it takes is an email without any evidence to back it up, to frustrate any protected action ballot, which is not the intent of the Act. If the PAB from the AMOU – sorry. If the AMOU sought to negotiate, sought to run a protected action ballot, this enterprise agreement from my research there has been one that covers the masters – sorry – the GPHs up until 2012. My research indicates there has not been one since the company came into operation in 2009. They’ve had time before today to seek their own industrial position.

PN47

THE COMMISSIONER: Mr Garrett, the ballot, if you’re successful in obtaining it, would always have the potential to be challenged if people who were ineligible to be members of the MUA, voted in it.

PN48

MR GARRETT: Absolutely. That’s why that matter shouldn’t be determined today but subject to other determinations pursuant to the Act, as opposed to today. Today is about seeking an application for a protected action ballot, where the test isn’t necessarily high to go through whether we’ve been bargaining in good faith and genuinely trying to reach agreement.

PN49

If it’s then determined that we’re taking action which has ineligibilities, as what you’ve just described, then there’s other sections in the Act that provides for relief. This isn’t the forum for that relief. That should be sought for elsewhere, should that so be correct.

PN50

THE COMMISSIONER: So you’d be content with me, if you were successful, making protected action ballot that if there was a vote taken and the majority of those people voted in favour of taking protected action, it could always be the subject of potential challenge and invalidity.

PN51

MR GARRETT: Absolutely, Commission, by virtue of the fact that we’ve seen countless protected action ballots that have been endorsed by the Commission, endorsed by the membership, and then overturned by the Full Bench of the Federal Court down the track. This has happened several times before with the union, so it wouldn’t be a new concept that we’ve had to deal with. But the application today is for a protected action ballot.

PN52

Should there be relief otherwise, then let it be sought otherwise. Today is about getting the ballot for the workers and whether we’ve met the test in section – I think it’s 441, and dealt with those tests. Any other relief that the AMOU or Manly Fast Ferries seek, then there’s appropriate jurisdiction for them to go and do that, should it be the Commission or court be so persuaded to grant that relief.

PN53

THE COMMISSIONER: Well, Mr Garrett, I suppose it’s your application. If you want to press ahead in those circumstances, perhaps I should.

PN54

MR McCARTHY: Commissioner, if I might be able to make a comment in relation – I believe a pertinent comment in relation to the issues being dealt with between yourself and the union.

PN55

That is this, that whilst I’m not aware of and have not received a piece of the correspondence from the AMOU to the Commission and obviously copied into the MUA, the issue of concern about the constitutional capacity of the MUA to represent some of the employees that the union both seek to represent in the bargaining process and from there seek to have an order made today for the conduct of a protective action ballot, is a matter – and in fact, it’s the only matter of any substance that was the subject of the first round of negotiations between the parties last Thursday, in which – in those discussions – and it was going to be part of my submissions when I got to it, but here we are – in that the company said to the MUA on Thursday that, firstly, it was not initiating the process of bargaining by the issuing of the notice to its employees, did it ever intend for the proposed enterprise agreement it was seeking to negotiate, to cover either masters or engineers.

PN56

It made the point that it wasn’t seeking to extend the coverage of the old Greenfields’ agreement that in relation to on-board employees only covered general purpose hands and hosts and hostesses.

PN57

It made the point that consistent with the on-board coverage of the old Greenfields’ agreement – which was an agreement between the MUA and the company for the initial ferry service back in 2009 which has continued as the ferry service until the company got an extended and new contract from the New South Wales government to start on 1 April – that the company was pointing out that it was only seeking to create a new enterprise agreement in its negotiations, be it with the employees the MUA was a bargaining representative on behalf of, or any other employees who may have chosen to put themselves forward with someone else as a bargaining representative.

PN58

It was only seeking to cover that class of employee it understood the MUA had constitutional coverage for, and that it was news and a surprise to the company that the MUA was seeking to cover masters and seeking to cover engineers.

PN59

In relation to masters, I specifically pointed out on Thursday at the negotiations that to the best of my knowledge, and I’ve operated and represented companies in negotiations with the MUA and the other maritime union, so for some 10 years, that to the best of my knowledge, the general established constitutional coverage and best generally established industrial practice in the maritime sector is that the class of employee known as a master is covered by the AMOU but engineers are covered by the AIMPE, and that they are not classed as employees typically covered by the MUA.

PN60

We had no expectation for the MUA to be there seeking to start negotiations about them and it was a surprise to us, and as a consequence of which part of our submission today was to be – and now are proceeding is that in fact the view within the MUA or the desire, I should say, of the MUA and its inability to cover masters and engineers, means that its application is faulty itself. It’s as simple as that.

PN61

Because, as we understand it, section 176(3) of the Act provides that an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to the work that will be performed under the agreement.

PN62

On that basis we would put that the terms of the draft order are invalid because it seeks to – seeks an order from the Commission for the conduct of a ballot in relation to protected industrial action for the establishment of an enterprise agreement in relation to classes of employees that, to the best of our understanding, go beyond the constitutional coverage of the union. And that, as I said, we specifically talked about our concerns in relation to the aspirations of the union last Thursday, and in that explained what I’ve already explained to you about the other two maritime unions and who they normally now understand to generally cover.

PN63

THE COMMISSIONER: So if I understand all of that, your opposition to it is effectively on the basis similar to that which has been alluded to by the AMOU in its communication to the Commission this morning?

PN64

MR McCARTHY: Well, that was the second part of what we were going to – our grounds, yes. That was the second part of our grounds. Our earlier part of our grounds – and I might as well touch on it now if it’s suitable to the Commission. Our earlier part of the grounds is that in our view it’s premature for the union to be applying for the protected industrial action ballot that it’s seeking, and that is for this reason, and that is that the bargaining –the requirement of the Act is that the union is bargaining in good faith.

PN65

That concept of what are the factors to be taken into account by the Commission in determining whether or not a union is bargaining in good faith, were for example considered in the Full Bench case of the Commission earlier this year, Esso Australia Proprietary Limited v the AMWU, the CEPU and the AWU [2015] FWCB 210. The Full Bench in that Fair Work Commission decision set out seven factors which it said were relevant to determining whether a party is genuinely trying to reach an agreement in accordance with section 443(1)(b) of the Fair Work Act.

PN66

In those seven factors the very first one the Commission referred to was the subject matter and the timing of the claims. Now, why is that particularly relevant? It’s particularly relevant because when the parties met last Thursday at – it was supposed to be 10 o’clock. The union, unfortunately was running a bit late. 10.30 it started and the negotiations and discussions went until 12. At that point in time the union hadn’t actually made any claims. In fact, its lot of claims were not received until an email at 4.04 on Thursday afternoon, hours after the first round of the discussions took place.

PN67

More than that, on an agenda that I, on behalf of the company provided to the MUA the day before an agenda for the proposed opening round, that agenda, amongst other things, identified the fact that the question of logs of claims would be – this was only a preliminary discussion and that the log of claims to be prepared by either party would be something we’d identify as a task of the parties coming out of last Thursday’s meeting.

PN68

In the agenda it also included, as a final item, the need of the parties to identify a time and a venue for the negotiations to discuss the proposed claims would be set. That meeting was set and that meeting is scheduled for next Monday. So the parties haven’t even begun the process of talking about logs of claims. It’s for that reason, very importantly the proposition that – the way I put that proposition is that the whole application itself is premature because it’s being put to seek the conduct of a secret ballot for the taking of protected industrial action before the bargaining has even begun.

PN69

Let alone then, the one and only matter of substance – and that’s why I made it second in the issues that I was going to raise, in the order in which I was proposing to raise them – only then did I raise the question of the concern about the other unions, the traditional constitutional coverage and practical industrial coverage of the various unions within the structure of the maritime sector. Be it Blue Water, tugs, ferries in this case, dredging, whatever it be.

PN70

I’m not trying to be difficult and I’m not trying to be clever, and we’re not trying to be smart. We are simply saying that we are only just about to begin. I would suggest that the greatest frustration that the union at least purported to us last Thursday, and seeks in the witness statement that I read, purports to continue with is its frustration with the company, as if the company is dragging the chain on the process. We strongly believe we have not done so.

PN71

The company has had – as we have endeavoured to explain to the union – a huge amount on its plate to be told immediately before Christmas from a situation where it had been put on notice months before, that the New South Wales government had made a decision to re-tender its ferry services contract. It got put on notice that it needed to re-tender to have the work. It got advised that it was not the only tenderer. There were in fact several other tenderers.

PN72

It was not told until late in December, just before Christmas, that it had the job. It got the job. Right. In the period from the New Year to 1 April when it had to start operating with not two ferries, but five ferries; not five days a week, but seven days a week; not with 12 to 15 employees, but twice that number of employees, it had to create and do all of these things. To work out how the rosters are going to be able to be done and organise and structure it, on top of all these things.

PN73

In addition to all of that, it had in a real practical sense – and I’m sure that the list and the agenda is far greater than that – but on top of all of that, it had the task of how to best deal with even handling the approach made by the MUA to start the bargaining process. One of the things that the company did point out to the MUA and it included the MUA as a matter of courtesy on the list of parties that received the Notice of Representation Rights issued to the employees, was the fact that to the best of its knowledge – and I can’t put it higher than that – to the best of its knowledge, a substantial number of its employees were not members of a union.

PN74

So it had to issue a notice to ensure that properly in accordance with the requirements of the Act, all parties, all employee parties, had the opportunity to consider their rights to be represented and decide what to do about it. That notice, as the union knows, went out on 29 April. It has provided a copy of that notice to the union. Here we are in the second week in May and we’ve already had a meeting.

PN75

We’ve already scheduled a further meeting but the purpose of the scheduled meeting is to begin to talk about the logs of claims of the respected parties, including the 28 items included in the list that the MUA were good enough to send to us by email at 4 o’clock on Thursday afternoon, some four afters after the first discussions concluded. It’s too early to know is there bargaining in good faith or not, for either party. It’s certainly too early for a ballot.

PN76

That was going to be the first context. The second context was going to be the issue about our concern about the proposed constitutional coverage of the union because, as we explained to the union on Thursday at the meeting, the company has separately been talking to its masters and was always of the view that it would talk to its masters about its future industrial arrangements separately, given the fact that the masters are perceived to be – and I don’t believe we’ll get an argument from the MUA about this, and we said it the other day, and we got an acceptance of it, as I understand it – that the MUA are the management representatives on the vessel and therefore stand separately from the others.

PN77

MR GARRETT: Is this going to be given in sworn evidence at any time or are we doing all this from the bar? Because there has been a number of falsehoods put from the bar, which is on transcript, and I must press, is any of this – we’re doing the question of the leave to appear, is any of this evidence going to be sworn in because a lot of this is false and I must object to this line continuing.

PN78

THE COMMISSIONER: Yes. I’m not sure that it assists great, Mr McCarthy, to just try and provide evidence sort of in an oral dissertation from the bar table.

PN79

MR McCARTHY: I was just trying to outline – sorry, Commissioner. I was just to outline where - - -

PN80

THE COMMISSIONER: But, see, I - - -

PN81

MR McCARTHY: That it’s more complex than – and it wasn’t just about the constitutional issue but we were aware of it and we brought it up. That’s all I was trying to say.

PN82

MR GARRETT: Commissioner, if I may, I appreciate the position that’s put. I can interrogate that point by point and put falsehoods, and a demarcation dispute that the solicitor or bargaining agent or whatever it is tomorrow, is trying to put forward. But the position is, it’s a protected action ballot that we’re putting forward. If the company is not happy or another union is not happy, the Act provides for relief to deal with that question.

PN83

In regards to the complexities, we can throw up all sorts of complexities to deal with the question. It’s a protected action ballot. If there’s issues, there’s other relief to be put. So on the question of bargaining in good faith, we’ve filed a witness statement. In error, the printer – we had an issue with the printer on Friday but that has been refiled to yourself, sent to the other parties and I have copies here, and we’re prepared to lead that evidence here.

PN84

With respect to the other positions put, we’re happy to deal with it. With respect to coverage, I have the Branch Secretary here if I need to deal with that question. It demonstrates Manly Fast Ferries, considering how Mr McCarthy is a bargaining agent, the lack of understanding they have in the maritime industry when it comes to coverage, but please can we press ahead with the protective action ballot because all this is just white noise to an application that we’ve put forward, to deliberately frustrate it.

PN85

THE COMMISSIONER: Well, I think I have an obligation to proceed but could I – I want to hear you firmly on the question of representation of Mr McCarthy in terms of the hearing today. Do you renew an objection to Mr McCarthy appearing?

PN86

MR GARRETT: Yes, Commissioner.

PN87

THE COMMISSIONER: On the basis that - - -

PN88

MR GARRETT: On the basis that it’s not a complex matter. Notice was given under an F53 which hasn’t been withdrawn. That F53, as far as the MUA are concerned, is still there. Had it been withdrawn, we may have gone through and got other advice but certainly walking up to the Commission today, that F53 was still in place. It’s still a valid document. It hasn’t been amended. There has been ample time on his feet to withdraw that. That hasn’t been done.

PN89

We don’t believe the matter is complex. This is about a bargaining position. In regards to the government and the other unions, that’s just white noise. The position is simply: have we been bargaining in good faith; are we genuinely try to reach agreement. To both those points we can answer yes.

PN90

With respect to the filing of a log of claims, we can certainly press – lead evidence when it comes to the question of the company seeking to adjourn the meeting but not set a future meeting date, which Mr Drane who went ahead and asked that question and pushed for a meeting date, and we can lead that evidence from the box and it’s also contained in the witness statement.

PN91

So with respect to that, yes, we do go ahead and press it. There is an F53 filed. It hasn’t been withdrawn and as such Mr McCarthy should be treated as a lawyer or a paid agent pursuant to section 596(2)(a). It isn’t a complex matter and the Commission should exercise its discretion and refuse leave.

PN92

THE COMMISSIONER: Mr McCarthy?

PN93

MR McCARTHY: I withdraw my application to seek leave to appear on behalf of the company, and I’m here in my capacity as a bargaining agent. It’s my understanding that under the provisions of section 178 of the Act, that a party to the proceedings can nominate a bargaining representative at any time, and the company has chosen to do so.

PN94

THE COMMISSIONER: So you say you don’t need permission now?

PN95

MR McCARTHY: That’s correct, Commissioner.

PN96

THE COMMISSIONER: Has there been some formal advice to the Commission of your appointment?

PN97

MR McCARTHY: No, there hasn’t, Commissioner. That is, the letter that I mentioned earlier that I have a copy of, and I would be happy to provide it if that is necessary, as I understand the way the Act works the appointment needs to be in writing. The appointment cannot be retrospective and the appointment upon request needs to be provided to other bargaining representatives. Without that request and as a matter of courtesy, a copy of the appointment letter was forwarded to the MUA this morning.

PN98

THE COMMISSIONER: Well, perhaps I would need a copy of that to be satisfied before I could be convinced that on the basis of that appointment, that evidence, that permission was not required.

PN99

MR McCARTHY: I can tender a copy.

PN100

THE COMMISSIONER: I take it you’ve seen this letter, Mr Garrett?

PN101

MR GARRETT: Briefly on the iPhone but - - -

PN102

THE COMMISSIONER: It’s peculiarly dated 5/18/2015. It’s unsigned. But it does appear that the letter indicates that as of today, Mr McCarthy has been appointed by Manly Fast Ferry Pty Ltd as a bargaining representative. I think it might be appropriate then that I mark this communication as an exhibit in the proceedings. Is there any objection to me doing that?

PN103

MR GARRETT: Sorry, Commissioner, I was talking to myself. I lost the argument too, for what it’s worth. What was the question?

PN104

THE COMMISSIONER: I was just asking whether you had any objection to me formally receiving this document and marking it as an exhibit?

PN105

MR GARRETT: No objection.

PN106

THE COMMISSIONER: Right. This document will become exhibit 1 in these proceedings. Exhibit 1 is described as a copy of a letter dated 5/18/2015 purporting to appoint Steven McCarthy as a bargaining representative for Manly Fast Ferry Pty Ltd. That’s exhibit 1.

EXHIBIT #1 COPY OF LETTER PURPORTING TO APPOINT MR S. McCARTHY AS A BARGAINING REPRESENTATIVE FOR MANLY FAST FERRY PTY LTD, DATED 18/05/2015

PN107

THE COMMISSIONER: Thank you, Mr McCarthy.

PN108

MR McCARTHY: Thank you, Commissioner.

PN109

THE COMMISSIONER: Mr Garrett, do you want to say anything further about the proposition that is now advanced, and that is that permission is not required because of effectively exhibit 1?

PN110

MR GARRETT: Excuse me. It hasn’t been signed, which we do note. Certainly having an American wife, I can understand getting the month and days mixed up. It’s more familiar when she sends me letters than what I usually receive in Australia but she’s out here now and she’s learnt to do it properly. No doubt Manly Fast Ferries will pick that up as well in due course.

PN111

But with respect to the process, I just bring in the question of good faith bargaining in general, and I can deal with that during submissions, but we had met last week with certain understandings that there was a legal representative and now he’s a bargaining agent, and we question whether there has been good faith bargaining from Manly Fast Ferries.

PN112

THE COMMISSIONER: Yes. Well, I don’t think I’ve got an application before me for good faith bargaining orders. I might well have in due course but I don’t have that before me at the moment.

PN113

MR GARRETT: You’ll have no application from the AMOU but it seems to have taken up a fair bit of our time this morning as well.

PN114

THE COMMISSIONER: Well, they raise an important point and I have to deal with it at some point. I think perhaps the most convenient way to deal with this is to indicate that I think that given what’s been put from the bar table this morning, rather than endeavour to decide whether or not the appointment of Mr McCarthy as a bargaining representative avoids the requirement for permission, given what’s been put from the bar table, I believe there’s a degree of complexity that’s emerged in the matter which would involve me forming the view that granting permission for Mr McCarthy to appear in the matter might enable the matter to be dealt with more efficiently because of the level of complexity that has been identified as a result of the contentions that have been made by the respective parties from the bar table over the last 20 minutes.

PN115

MR GARRETT: With the only issue being that Mr McCarthy has already withdrawn his form 53 orally and amended that position.

PN116

THE COMMISSIONER: Well, I’m just indicating that I think that even if that wasn’t the position, that complexity that’s emerging in the matter is one where I’d be very reluctant not to grant permission for either side to be represented by a legal representative.

PN117

MR GARRETT: Shall we press ahead then, Commissioner?

PN118

THE COMMISSIONER: Yes. So having done that we’ll press ahead.

PN119

MR GARRETT: The application we would press has been formally supplied pursuant to section 437 of the Act. The MUA is a bargaining representative for the purposes of section 437(1) of the Act. The EBA is not a Greenfields agreement, nor a multi-enterprise agreement for the purposes of section 437(2) and the provisions of the application are consistent with section 437, paragraph 3.

PN120

With respect to section 438, the MUA doesn’t appear to be aware of any current enterprise agreement that does cover workers of the Fast Ferries. We are aware of a document that was done in 2009 before the company that preceded the Fair Work Australia – whose name – the government agency, whose name escapes me, but there was a document in 2009 which we understand expired on 31 March 2012. I can certainly stand corrected on that.

PN121

What the union would press is that that document was to cover Manly Fast Ferry in their non-government operation, and since that time there’s been a distinct change to their business. They now operate under a government contract as of April 1, 2015. We are entitled to make an application there.

PN122

With respect to section 443 of the Act, the Fair Work Commission is obliged to make a protective action ballot order in relation to a proposed enterprise agreement, if the application has been made under section 437, and the Fair Work Commission is satisfied that each applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

PN123

Commissioner, I’m happy to deal with it in closing submissions but with respect to some commentary that’s made earlier with regards to union coverage, that need not be a matter of the Commission’s consideration for the purposes of section 437. If the company or any other industrial organisation believes that there’s an issue to be attended to, there are other sections of the Act which should be pursued, and the Commissioner – we would press that the Commissioner shouldn’t be persuaded by any arguments which are put there to stop the section 437.

PN124

What we do know is this. Is that the rules of the union are clear, and I will address this point only for the purpose of clarifying the position that has been pressed somewhat mischievously by Manly Fast Ferry. I draw the attention of the Fair Work Commission – and I don’t have a copy before me, but of the certified rules of the Maritime Union. Rule 182V, certified on 14 August 2014, and I particularly take the reference of the Fair Work Commission to paragraph 3 – sorry – 3(c)(i):

PN125

Without limiting in any way the operation of the provisions of sub-rule (a) of this part S in the State of New South Wales, the union shall, in the State of New South Wales, consist of an unlimited number of members in addition to those referred to in sub-rule (a) of part S and shall be comprised of –

PN126

I won’t read out all the classifications of employees, other than the part which does say:

PN127

Employees working on river or harbour vessels including ferries –

PN128

and goes on to mention a number of other qualifications. Now, the vessels operated by Manly Fast Ferries are river and harbour vessels. They are within the Ports, Harbours and Enclosed Waters Award, and they’re certainly classed as ferries. The name of the business, Manly Fast Ferry, should support that. There is no conjecture as to whether the vessels are ferries or not.

PN129

That rule has been used openly in this State for many years, and any assertion by Manly Fast Ferry that AMU exclusively represents masters; any assertion by Manly Fast Ferry that the AIMPE exclusive represents engineers, is simply erroneous and can’t be supported by fact. That isn’t correct and if it is, we’d ask for evidence to be led on that. Further to that then, Commissioner, for the purposes of the section 437, I would like to called Collin Drane just to tender a witness statement, please.

PN130

THE COMMISSIONER: Thank you.

<COLLIN WILLIAM DRANE, SWORN [12.48 PM]

EXAMINATION-IN-CHIEF BY MR. GARRETT [12.48 PM]

PN131

MR GARRETT: Thank you, Mr Drane. Have you prepared a witness statement for these proceedings today?‑‑‑I have, Commissioner.

PN132

Does your witness statement include some eight attachments?‑‑‑It does.

PN133

Have you read that witness statement recently?‑‑‑I have.

PN134

Is it true and correct to the best of your knowledge?‑‑‑It is.

PN135

I seek to tender the witness statement of Collin Drane, Commissioner.

PN136

THE COMMISSIONER: Is there any objection to its admission?

PN137

MR McCARTHY: No, Commissioner.

PN138

THE COMMISSIONER: Thank you. The document is tendered and admitted without objection. It shall be marked as exhibit 2. Exhibit 2 is described as witness statement of Collin Drane dated 15 May 2015. Exhibit 2.

*** COLLIN WILLIAM DRANE XN MR. GARRETT

EXHIBIT #2 WITNESS STATEMENT OF COLLIN WILLIAM DRANE DATED 15/05/2015

PN139

MR GARRETT: Thank you, Mr Drane. Can I take your attention, please, to attachment 1 of your statement. A letter from Paul Garrett to Richard Ford of 13 April 2015?‑‑‑Yes.

PN140

Can I take you to the fourth paragraph and ask you to read that paragraph, please?‑‑‑“Those workers have also asked us to act on their behalf and to assist in facilitating a new enterprise agreement to be negotiated to cover the work which is performed on ferries across all classifications.”

PN141

The words “across all classifications,” can you give me your understanding of what that meant, please?‑‑‑It’s my firm view that that means that all employees who are employed on working – sorry, in classifications working on the ferries in various tasks, and also those working on the wharf.

PN142

Thank you. Can I take you to your attachment 6, please. Correspondence from Mr Richard Ford to Paul Garrett, of 8 May 2015. Are you familiar with that correspondence?‑‑‑I am, yes.

PN143

In that correspondence, was there anything that alerted you to the fact that the company had any objections with respect to the correspondence sent previously by the union with respect to coverage? That is, classifications of coverage?‑‑‑I’m just quickly scanning, sorry. I’m scanning the letter again, sir. There does not appear to be anything in that correspondence.

PN144

Thank you. Can I take you to attachment 7. 12 May 2015?‑‑‑Certainly.

PN145

There’s three names there who are purported to be delegates. Mr Troy Tomkin, Mr Brad Gill, and Mr Zanae Hiriake. Are you familiar with those three members?‑‑‑I am, yes, and I’ve met with them on a number of occasions.

PN146

Do you know what classification they are?‑‑‑Yes. Yes. Well, some of them certainly. I know that Mr Tomkin is employed as a master, as I understand it. I’m not too sure about Mr Gill and Mr Hiriake.

PN147

Are you aware that any of those three are employed as masters?‑‑‑I believe that Mr Tomkin is.

*** COLLIN WILLIAM DRANE XN MR. GARRETT

PN148

Did you attend - - -?‑‑‑Actually, I can clarify that. My recollection is that they are all employed as masters.

PN149

Thank you. Did you attend the meeting on Thursday, May the 14th with Manly Fast Ferries?‑‑‑I did.

PN150

At that meeting did the company indicate any objection to those delegates attending, set EBA negotiations into the future?‑‑‑There was no objection expressed by the company to the attendance of those delegates either at the meeting or at any future meeting.

PN151

You say at paragraph 16:

PN152

At the conclusion of the meeting, Manly Fast Ferries refused to set a date for another meeting.

PN153

?‑‑‑That’s correct.

PN154

Can you please expand on that?‑‑‑Well, what happened was, Mr Garrett, that the company at the end of the meeting put forward a position that they felt they had a number of issues that they wanted time to reflect on and clarify, and they did not feel they were in a position to set a date for a further meeting. I had been basically quiet during the course of the meeting, Mr Garrett, but at that point I added that I felt it would be appropriate to at least set a date because I was concerned that negotiations or at least an attempt to get negotiations underway had dragged on for some considerable period, and that if we failed to set a date for a follow-up meeting, that that process would continue. Hence, I pressed the point that we should set a date, and following that a date was set for next Monday.

PN155

Thank you. Nothing further, Commissioner.

PN156

THE COMMISSIONER: Cross-examination, Mr McCarthy.

CROSS-EXAMINATION BY MR. MCCARTHY [12.54 PM]

PN157

MR McCARTHY: Thank you, Commissioner. Mr Drane, could I take you to paragraph 4 of your witness statement?‑‑‑Certainly.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN158

Could you just read it out for us?‑‑‑“The MUA is not aware of a current EBA for employees working at MFF in the capacity of masters, mates engineers, general purpose hands and hosts/hostesses.”

PN159

I take it then from that statement that you’re unaware of the existence of the still legally and operating industrial instrument that exists between Manly Fast Ferries and the Maritime Union of Australia? You’re unaware of that; is that correct?‑‑‑No. I’m aware that an agreement expired in 2012 and that the parties are eligible to negotiate a new agreement as of the expiry of that agreement.

PN160

I didn’t ask you that. Are you aware of its existence?‑‑‑I’m aware of its existence.

PN161

Are you aware of the fact that under the Act, that unless the prescribed provisions of the Act for the termination of that instrument are followed, that that instrument remains legally operational? Are you aware of that?

PN162

MR GARRETT: I object, Commissioner. Paragraph 4 of the witness statement says:

PN163

The MUA is not aware of a current EBA for employees working at Manly Fast Ferries in the capacity of masters, mates engineers, general purpose hands, and hosts/hostesses.

PN164

The document that’s put forward doesn’t cover all of those classifications. I object to the line of questioning. That was a specific statement from Mr Drane. That’s a specific document to certain categories of employer.

PN165

MR McCARTHY: The advocate for the MUA beat me to the very issue I was hoping to raise, and perhaps I could press on.

PN166

THE COMMISSIONER: I think we can continue the questioning.

PN167

MR McCARTHY: So you are aware of the existence of this? Just to confirm, you’re aware of the existence of this industrial instrument?‑‑‑I am, Mr McCarthy, and the inference of that - - -

PN168

Bear with me. Perhaps you can just - - -?‑‑‑Will you allow me to finish or - - -

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN169

It’s a simple question. Do you know of its existence or not?‑‑‑I am aware of it. That’s correct.

PN170

Great. Thanks. And you’re aware that parties to that industrial instrument are the two same parties that are the parties to these proceedings? On the one hand, the MUA and on the other hand, Manly Fast Ferries?‑‑‑That’s correct.

PN171

Are you aware of the scope of the parties’ bound provisions of clause 3 of that agreement in the sense of who are the nominated classes of employees covered by that instrument?‑‑‑No, I am not and the inference of the paragraph from my statement was that there was nothing preventing the parties from negotiating a new enterprise agreement. That was what was inferred in paragraph 4 of my statement.

PN172

I’m sorry, we’re not here about inferences. That’s in fact not what the paragraph says?‑‑‑Well, it’s what it’s meant to infer. I wrote it.

PN173

What the paragraph says is that the MUA – and I don’t think any of us need a lesson in how, you know, capable the MUA is. It’s an industrial union of employees. “The MUA is not aware of the current EBA for employees working at Manly Fast Ferries, in its capacity of masters, mates engineers, general purpose hands, hosts/hostesses.” So - - -?‑‑‑The inference of that was that there was meant to be no – from my point of view, and I wrote the statement, was that there was no – nothing inhibiting the parties from negotiating a new agreement.

PN174

So notwithstanding paragraph 4, you are aware of an industrial instrument that exists between the parties?‑‑‑An expired one, that’s correct.

PN175

But still legally enforceable and operating?

PN176

MR GARRETT: Commissioner, I renew the objection. Now badgering. The point has been pressed by a previous objection and there’s a point put on inference and there’s a point upon classifications as a whole.

PN177

MR McCARTHY: I haven’t - - -

PN178

MR GARRETT: Again, what’s being led forward is limited and doesn’t cover all the classifications that are in Mr Drane’s statement.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN179

THE COMMISSIONER: I think Mr McCarthy is entitled to examine and test that particular aspect of the matter.

PN180

MR McCARTHY: Thank you, Commissioner. So, Mr Drane, given your awareness of this industrial instrument and given that you’re the draft person of that paragraph - - -?‑‑‑That’s correct.

PN181

- - - could you – I just want you to clarify, if you could, for me the difference in scope of coverage, if I could put it that way, of your statement compared to the coverage of the existing industrial instrument?‑‑‑The scope of what we’re seeking to cover, Mr McCarthy, with respect to this application and our negotiations with Manly Fast Ferries is those employees who are employed who work on the ferries, all employees who work on the ferries, and those employees who work in a support role on the wharf. That’s what we’re seeking to pursue.

PN182

No. No. I’m asking you if you could clarify the differentiation of the scope of the current instrument as opposed to the scope you’re seeking to talk about in paragraph 4?‑‑‑I have not – I’m not familiar with – I’m aware of the existence of the agreement that expired in 2012. I didn’t study it in great detail because it’s an expired document.

PN183

Could I show it to you?‑‑‑Certainly.

PN184

Thank you. If I may, Commissioner?

PN185

THE COMMISSIONER: Yes. Does that need to be an exhibit?

PN186

MR McCARTHY: Well, I don’t think it needs to be an exhibit because it’s an industrial instrument that exists under the Fair Work Act but I could be wrong. If I could take you to subparagraph 3, I believe, of clause 3, and it names three classes of employees who are bound by this – the current operating instrument. Could you read them out for me?‑‑‑It states, 3.1.3, goes on to state: “General purpose hand, ticket seller, cashier, host or hostess.”

PN187

Thank you. Having read that out, can I then bring you back to paragraph 4 of your witness statement?‑‑‑That’s correct.

PN188

Can you tell me the difference between that category coverage and that sought to be referred to in your paragraph 4?‑‑‑Well, I think it’s pretty clear. It’s been made on - - -

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN189

Maybe you can enlighten us?‑‑‑ - - - a number of occasions, both by myself in the witness box and by Mr Garrett previously, that we are seeking to cover those employees that we believe are eligible to cover who work on the ferries and on the wharf.

PN190

That doesn’t – I’m sorry, I asked you if you could tell us the difference of the scope between - - -?‑‑‑Well, I just told you, Mr McCarthy.

PN191

Okay?‑‑‑We’re seeking to cover all employees that we believe we are legally entitled to cover.

PN192

I asked you to tell me, if you could, to clarify the difference of the scope of your statement in paragraph 4 and what you’ve just read out as the coverage of the current industrial instrument?‑‑‑Well - - -

PN193

Well, can I put it to you this way?‑‑‑Yes, put it another way. That would be helpful.

PN194

Would you agree with me that the difference is that in your paragraph 4, compared to the coverage of parties bound and classifications of the current instrument, is that you’re seeking to extend under the new agreement, to cover masters and mates engineers. Would you agree with that?‑‑‑I would say we are seeking to cover a greater scope, Mr McCarthy, if that satisfies you.

PN195

No, it doesn’t but we’ll press on. Could I take you to the first round of discussions that were held last Thursday between the parties?‑‑‑Certainly.

PN196

Could I ask you what your view of what the company put on that day was, that you were present, about its view of the union’s proposal to cover masters and mates engineers?‑‑‑You certainly may. As I recall, and I took extensive notes, Mr McCarthy, the company’s position was that it felt these particular employees were management representatives of the company and so, therefore, it was the company’s view that they should fall outside the scope of the enterprise agreement. At no point do I recall any issues of constitutional coverage being raised in those negotiations. I’d have to check my notes but my firm recollection was the issue turned, in your view, or as you put forward at the meeting, that it turned on that those employees were considered to be of a management level and that the company wished to deal with them on an individual basis. That was the position that was put forward by the company. I don’t recall anything about constitutional coverage.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN197

You have no recollection of any reference at all to the AMOU?‑‑‑I would have to check my notes. There may have been but I don’t recall it, but that’s not to say it didn’t occur. I would have to check my notes which are there are the table but - - -

PN198

Okay. Mr Drane, Mr Garrett took you to attachment 6 of your witness statement, which is a letter from Manly Fast Ferry to Mr Garrett?‑‑‑That’s correct, yes.

PN199

If I could attempt to précis it, my take on the question and answer exchange was to effectively say that in your view this instrument in no way, shape or form, was designed to limit the scope of classification or coverage that the union is seeking to include in the negotiations. I think you agreed that that’s correct, that it appeared not to do that?‑‑‑Yes.

PN200

Is that correct?‑‑‑That’s correct.

PN201

Could I just ask you then your view of – I’m sorry, I’ll retract that question. Could I ask, have you ever sighted the actual Notice of Employee Representation Rights that was issued by the company to certain of its employees on 29 April?‑‑‑On the 29th. I’m familiar with it, Mr McCarthy, that’s correct.

PN202

Then you’re familiar with - - -?‑‑‑With the statement that you’re going to take me to at the top of the page about the coverage, I am familiar with that.

PN203

We’re doing well so far?‑‑‑We are.

PN204

Could you just enlighten us then as to where I’m travelling?‑‑‑I am here to assist.

PN205

I am very pleased. Therefore, I take you back to that first paragraph and its second sentence, which reads, and I quote:

PN206

It is also further to Manly Fast Ferry issuing to its employees a Notice of Employee Representation Rights in relation to a proposed new enterprise agreement to cover the company’s Circular Quay to Manly ferry services following the issue of a new ferry service contract to Manly Fast Ferries by the New South Wales government.

PN207

I end the quote. So it’s alluding to the Notice of Employee Representation Rights, or the NERRs as it often seems to be called nowadays?‑‑‑Yes.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN208

You concede yourself that the NERR itself was more restricted in terms of its proposed employee categories it sought to refer to and issue a notice to. Is that right?‑‑‑Well, I can certainly say that there was disagreement between the parties about the validity of the NERR, that’s correct.

PN209

If you would – what would you think of the statement, if I put to you – if there was one issue and one issue only, of substance that was really between the parties at its initial discussions last Thursday was that it was all about the question of the scope of the proposed enterprise agreement?‑‑‑Look, Mr McCarthy, I wouldn’t – I took about eight pages of notes, so it would be erroneous to claim that it was the sole matter that was discussed.

PN210

No, I didn’t say sole; the principal?‑‑‑But I do acknowledge that it was a matter of disagreement between the parties.

PN211

Could I put to you or could I ask you if you recall the reason that was put to the MUA why the company at that point, towards the end of the discussions, could not or hesitated to name a next meeting date?‑‑‑Well, my recollection is – and, look, I’m not trying to evade answering your question, Mr McCarthy but my honest recollection is that the company felt it wanted to clarify a number of matters and, therefore, until such times as it had done so and had wanted to get some advice, it was not in a position to set a date for a meeting. That was my honest recollection.

PN212

Perhaps I could refresh your memory a bit?‑‑‑Yes.

PN213

What about the discussion about the company’s proposition that it would need to get back to the MUA by Wednesday of next week in relation to the union’s proposal to expand the coverage of the negotiations?‑‑‑To put that into context, Mr McCarthy, I do recall that being discussed but it was discussed in the context – and certainly the union’s response to you, as I recall, was that we felt you had come to the meeting unprepared because you knew that was going to be an issue.

PN214

Okay?‑‑‑So that was a matter of concern for the union. We felt that the company should have had its position sorted out before it got to the meeting last Thursday, given the length of time involved and that, therefore, it wasn’t a matter that, from our view, that should have taken an additional three/four days, I should say. Friday, Saturday – or, sorry, Friday, Monday, Tuesday, Wednesday, in order to get a response.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN215

But you do agree then that – you do agree from those observations, you do agree that it was a focal point date suggested, identifying that the company felt that it needed to make that decision and tell you about it first before the decision of - - -?‑‑‑It was a matter put forward by the company which the union disagreed with.

PN216

Thank you. Could I ask you, if you would, just to confirm that I have the sequence of events right, and that is, that the first time that the MUA issued its log of claims to the company in relation to these proposed enterprise agreement negotiations was last Thursday afternoon after the first round of negotiations meeting?‑‑‑There was a formal document sent to the company last Thursday afternoon. Now, it’s our view that there was considerable correspondence, including discussions at the meeting about certain aspects of our claim, but I think you can table proof that a document was sent last Thursday afternoon. The document, yes, was sent last Thursday afternoon.

PN217

In fact, if I remember rightly, and I ask you if you would comment on this, at last Thursday’s discussion, even the number of claims was mentioned for the first time to the company. Some 28, I believe, by Mr Garrett. In a somewhat humorous way saying, “It’s only 28. You’re lucky you’re getting the short version,” or words to that effect?‑‑‑I agree with him, Mr McCarthy.

PN218

All right. Do you have a copy of the 28 claims available to you? I can make them available to you?‑‑‑Not in my statement. I am familiar with the claims.

PN219

Commissioner, would I be able to show the witness a copy of the log of claims?‑‑‑I’m not sure of the relevance, Mr McCarthy.

PN220

Well, bear with me. I didn’t know that witnesses were allowed to challenge a question of relevance?‑‑‑Just a question.

PN221

Yes. No. Well, Commissioner, may I show - - -

PN222

THE WITNESS: Happy to be enlightened.

PN223

MR McCARTHY: It is a union document?‑‑‑Thank you very much.

PN224

Mr Drane, could you tell me, the document that I just provided to you, the covering sheet is an email from who?‑‑‑Mr Garrett.

PN225

To?‑‑‑Richard Ford.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN226

At the time of?‑‑‑4.04 pm.

PN227

On what date?‑‑‑Thursday, 14 May.

PN228

Could I take you to the final two pages of the document?‑‑‑Yes.

PN229

Would you agree that that represents the 28 MUA without-prejudice log of claims?‑‑‑Yes, Mr McCarthy.

PN230

Could you show me where in there, in that list of 28 log of claims, it seeks to expand compared to the current industrial instrument, the coverage of the proposed instrument?‑‑‑Point 4: classifications and rates of pay.

PN231

If I said to you that that document represents the union’s log of claims that are intended to be commenced negotiations about next Monday, would you agree?‑‑‑It was the document around which we would be negotiating. I wouldn’t necessarily say it was all going to come as a complete surprise to the company next Monday.

PN232

That’s not what I asked. I asked, you agree though that the purpose of that document was to provide to the company the MUA’s proposed log of claims for the commencement of the negotiations?‑‑‑Yes, it is, yes.

PN233

If that’s the case, could I ask your view as an experienced union official - - -?‑‑‑You certainly may.

PN234

- - - how we could be in the position of the seeking of a ballot for protected industrial action before the parties have actually even begun negotiation?‑‑‑Well, Mr McCarthy, we had been seeking to have a meeting with your client since the middle of April, and if we had been successful in obtaining a meeting with your client sometime at a much earlier date, we would have been in a position where we could have worked through a lot of this material earlier. Okay. So that’s the answer.

*** COLLIN WILLIAM DRANE XXN MR. MCCARTHY

PN235

So I suppose if I asked you the question that given all the circumstances that surround – lead up to the commencement of these negotiations and their formal sense, and the fact that the parties will start talking about a lot of the claims on Monday week, you would be of the view that a short period of three or four weeks is unreasonable for the company to have not arranged negotiations?‑‑‑Don’t ask me for an opinion, Mr McCarthy. No, seriously, in all seriousness, look, I was certainly disappointed that it took that long for us to get to the table and to start face to face negotiations when we had been pressing the company on numerous occasions for such a long period of time.

PN236

What did you think of the explanation that was attempted to be given by the company on 29 April letter, which you’ve already mentioned there, which you attached as a matter of courtesy the Notice of Employee Representation Rights. What did you think of the fact that it wasn’t until 29 April that the notice went out to the employees, and form there then employees who, for whatever reason, had chosen not to be in the union, what about their rights in terms of the opportunity to either choose to represent themselves or nominate someone else? I mean, is that not part and parcel of what is reasonable for the company to follow as a process before the negotiations commence?‑‑‑Mr McCarthy, I was disappointed that the company did not issue a Notice of Employee Representation a long time before 29 April.

PN237

I have no further questions of the witness, Commissioner.

PN238

THE COMMISSIONER: Thank you.

RE-EXAMINATION BY MR. GARRETT [1.15 PM]

PN239

MR GARRETT: Thank you, Commissioner. Just on Mr McCarthy’s question, at the meeting on 14 April were any claims put forward by Manly Fast Ferry, Mr Drane?‑‑‑On 14 April in our office or - - -

PN240

The 14 April meeting at the fish markets?‑‑‑Sorry. The meeting 14 April? 14 May.

PN241

14 May. I’ll try that again. Mr Drane, on 14 May you attended a meeting with Manly Fast Ferry for EBA negotiations, didn’t you?‑‑‑That’s correct, yes.

PN242

Did Manly Fast Ferry put any claims forward to be negotiated?‑‑‑Other than the coverage of the agreement, no, I don’t recall.

PN243

Thank you. How long have you worked with the Maritime Union, Mr Drane?‑‑‑I’ve been with the Maritime Union for approximately eight weeks, Mr Garrett.

PN244

Have you worked in the union movement before then?‑‑‑Previously, yes. I had some 14 years’ experience in the union movement.

*** COLLIN WILLIAM DRANE RXN MR. GARRETT

PN245

So it would be fair to say that this isn’t your first set of EBA negotiations?‑‑‑No, it’s not.

PN246

Thank you. Can I ask, with respect, your reporting relationship with regards to Manly Fast Ferries. Who do you report to within the Maritime Union?‑‑‑I report to the Branch Secretary.

PN247

Do you report to anyone else with respect to the organising of Manly Fast Ferries?‑‑‑To you, Mr Garrett.

PN248

Thank you. Do you work under my direction when it comes to EBA negotiations?‑‑‑I do, Mr Garrett, that’s correct.

PN249

Thank you. With respect to the union rules, have you had a chance to peruse the eligibility rules in the time that you’ve worked for the Maritime Union?‑‑‑I have. I have read them but I’m not completely familiar with them and, as you can understand, Commissioner, the first eight weeks in a new job, I’ve had a lot to learn, but I am familiar with the basic concepts of the coverage, that’s correct.

PN250

Previously I quoted rule 31(c)(i) with respect to coverage of the Maritime Union and in particular coverage of, quote,

PN251

Employees working on river and harbour vessels, including ferries.

PN252

End quote?‑‑‑I am familiar with that one and I had need to be familiar with that one, yes.

PN253

Thank you. Have you seen the vessels operated by Manly Fast Ferry?‑‑‑I’ve seen some of them. I’m familiar with them, yes.

PN254

In your experience, with the union as well as in life generally, would you class those vessels as a ferry?‑‑‑I would.

PN255

Thank you. With respect to the enterprise agreement or workplace agreement that was alluded to before by Mr McCarthy, and I understand it to be the Manly Fast Ferry and MUA Workplace Agreement 2009, have you had a chance to peruse that document?‑‑‑I haven’t.

*** COLLIN WILLIAM DRANE RXN MR. GARRETT

PN256

If I indicated to you that that document had a nominal expiry date of 31/03/2012, would that sound about correct?‑‑‑It would.

PN257

Thank you. Are you aware that Manly Fast Ferries operate under a government contract?‑‑‑I am.

PN258

Are you aware that that government contract started on 1 April 2015?‑‑‑I am, Mr Garrett.

PN259

Would it be fair to say that 1 April 2015 is a date that falls after 31 March 2012?‑‑‑Considerably some time, it’s fair to say.

PN260

Thank you. If it was put to you that Manly Fast Ferries won a government contract somewhere around December or January – December 2014 or January 2015, would that sound about correct?‑‑‑It would.

PN261

Does that date come before 1 April 2015?‑‑‑Considerably.

PN262

Would that allow four to five months to negotiate an EBA?‑‑‑In my view, as a union official with considerable experience, yes, it would.

PN263

Of course, December 2014 and January 2014, would those dates come after 31 March 2012?‑‑‑Certainly would.

PN264

So in your opinion as a union official with some 14 years’ experience, that there would have been time for Manly Fast Ferry to negotiate this enterprise agreement?‑‑‑Yes, there would and I was surprised that there was not any HR representation to that effect.

PN265

Are you aware that workers have a right to negotiate a new enterprise agreement?‑‑‑I am aware, yes.

PN266

Have you spoken with those workers and employees of Manly Fast Ferry?‑‑‑I have.

PN267

Including masters?‑‑‑I have.

*** COLLIN WILLIAM DRANE RXN MR. GARRETT

PN268

Have they indicated that they would seek to desire an enterprise agreement to cover their employment?‑‑‑They have.

PN269

Would you say that the union rules prevent them being part, in your limited experience with the rules, but would you say those rules limit their eligibility to the Maritime Union of Australia?‑‑‑No, I do not accept that our rules in terms of how they operate in New South Wales, with respect to ferries would be in any way a limiting factor.

PN270

But with respect to what I just mentioned in regards to rules limitations, in 14 years’ experience you are conversant with reading and understanding rules of a trade union or registered industrial organisation?‑‑‑That’s correct, yes. That’s correct.

PN271

Thank you. Nothing further, Commissioner.

PN272

THE COMMISSIONER: Thank you. You’re released and discharged. Thank you for giving your evidence?‑‑‑Thank you, Commissioner.

<THE WITNESS WITHDREW [1.20 PM]

PN273

MR GARRETT: I think we’ll leave the rest for closing submissions, and that’s the case for the union, Commissioner.

PN274

THE COMMISSIONER: Thank you. Mr McCarthy.

PN275

MR McCARTHY: Commissioner, the second point that I raised in my opening comments was that of whether it would be acceptable to the Commission for me to have Mr Ford sworn in as a witness to give his verbal explanation and understanding of the events that have led to today.

PN276

THE COMMISSIONER: It’s not entirely satisfactory but I think we will have to try and deal with it in that fashion.

PN277

MR McCARTHY: Thank you, Commissioner.

PN278

THE COMMISSIONER: Obtain some evidence from you.

PN279

MR McCARTHY: Thank you, Commissioner. I appreciate it. If we could have Mr Ford sworn in as a witness.

<RICHARD FORD, SWORN [1.21 PM]

EXAMINATION-IN-CHIEF BY MR MCCARTHY [1.21 PM]

PN280

MR McCARTHY: Mr Ford, for the record, could tell the Commission your name, your address and your position within the respondent company, please?‑‑‑My name is Richard Ford. My address is (address supplied) and my position is Director of Manly Fast Ferry.

*** RICHARD FORD XN MR MCCARTHY

PN281

Thank you. Mr Ford, could you in your own words explain to the Commission the events that have led to the appointment of Manly Fast Ferries by the New South Wales government to have a new ferry service from 1 April?‑‑‑Yes. Mr McCarthy, in late 2014 the government notified the market and the market being the whole of Australia, that the tender for a fast ferry service which would be – was deregulated would be re-submitted to the market, and the successful tenderer would be the only operator to run the service between Manly and Circular Quay for the high speed ferry. And that that service would commence on 1 April. Any operators operating before that time would not be able to continue their operation unless they were successful in the tender post April 1, 2015. Manly Fast Ferry submitted a tender in that process and we were notified on or around 15 December 2014 that we were the successful proponent for that service. The proposition of that service meant that our business would cease if we weren’t successful in the tender process, so we did have concerns about the viability of our operation. So we tendered for the service. We were notified on 15 – on or around 15 December. We had negotiations with the government during January and February, around matters such as timetable, services, number of vessel providing. We met with – during that time we met with the existing staff and notified them of the timetable of events, that getting vessels and nominating the timetable would be required prior to any staff negotiations because we purely didn’t know what the shape of the service and the operating hours would be prior to those determinations by the government. So we met on two occasions with a group of the staff, and on one occasion with one staff member who was reporting to be representing the staff in late February, early March. So in February/March we finalised the details of the service that we were to provide for the government. We contracted vessels from around Australia to come in on short notice and supply the service by 1 April. That required our operation growing from a two-vessel operation to a five-vessel operation. That involved the hiring of a lot of staff. We had in place the existing MUA, Manly Fast Ferry agreement, the previous one that was running through, and under those terms we employed the staff. We also had a previous agreement for masters and engineers. So we employed the additional staff. We got the service up and running by 1 April and on 10 April I started meeting with our long-serving staff, talking to them about their employment conditions and what they would like to see, how the roster was running and what changes and what they would like to see going forward. I started that discussion and then on 13 April – so it was 10 days after we started the service, eight to 10 days after we started the service, and on 13 April I received a phone call from Mr Garrett, I believe, and he informed me that he would like to start re – have a look at the old agreement in the terms of readjusting that agreement. I informed him that I would be on leave from 15 April to 21 April, and that I would be in contact with him on my return. I returned from interstate on 21 April. On 22 April I met with Mr McCarthy to discuss the requirements of Mr Garrett’s request, and on 23 April we issued a notice on Mr McCarthy’s advice, and then 29 April we issued to the staff the notice. Did you want me to continue on, Mr McCarthy? So at that time we informed the staff, on 29 April, and my advice was that we were required under the Act to give the staff time to nominate bargaining agents and then to set a date with the MUA which was the result of the first meeting.

PN282

Thank you. If I indicated to you that the MUA are of the view that there had been unreasonable, undue delay in the commencement of the enterprise bargaining negotiations between yourselves and the union and the employees it represents, what would be your reaction to that suggestion?‑‑‑I kept the staff informed as to our progress along the process of starting this significantly increased new service. I undertook to the staff to approach them directly because we had not received a notice that the union was to be negotiating. We were setting dates to make those meetings to find out what claims they might have. Then I was instructed once Mr Garrett made the phone call and we issued the notice that I was no longer in a position to talk to those staff about the EBA or any agreements until this process had run its course, as per the requirements of the Act.

PN283

Could I take you to the first meeting held between the company and the union in relation to the enterprise agreement, which was held last Thursday morning at the Sydney Fish Markets. Could you outline briefly for the Commission what you understand to be the principal issues discussed between the parties during that first round of discussions?‑‑‑Well, our notice was always out to the general purpose hands, and ticket sellers and hosts/hostesses, was the notice. Item 2 on our scope of – sorry – item 2 on the agenda for the meeting was the scope. So, sorry, Mr McCarthy - - -

PN284

Yes. What were the main issues discussed?‑‑‑Yes. So we got – the discussion got to the item of scope. There was some technical discussion about the coverage of the respective unions. There was, in my limited experience with these discussions, there was some – the MUA had one view and the Mr McCarthy was positioning the other view. There were discussions but there wasn’t much point proceeding with the rest of the agenda until the matter of scope was determined because it was a significant component of what we were discussing, and the notice had been issued that we would have to re-issue if that scope was to change, so that formed the majority of the discussion – was around scope.

PN285

In relation to that topic, was the name of any of the other unions mentions?‑‑‑Yes, it was.

*** RICHARD FORD XN MR MCCARTHY

PN286

At the first round of discussions were a log of claims put forward by the union?‑‑‑No, there was no log of claims presented.

PN287

What was said about the union’s log?‑‑‑They said they had discussed downstairs with the delegates and they had prepared a short list or a list of 28, which was going easy on the company, I think was that line of discussion. And but there were items in that claim that they weren’t prepared to table at the meeting and would send it through at a later date.

PN288

Was there or were there any dates set for any particular purposes arising from the meeting between the parties?‑‑‑Yes, there was an additional – the follow-up meeting was Monday week. I don’t have the date exactly but - - -

PN289

Was there any other date mentioned for any other purpose?‑‑‑Yes. We had a – notified the union that we would get back to them in the discussion on scope by Wednesday of this week.

PN290

What was your reaction to having received the application by the MUA for after the negotiations – application by the MUA for an order for the conduct of protected industrial action. What was your reaction to that?‑‑‑I think I received the email in relation to this action a couple of minutes after I received the log of claims, so I was very surprised that the union had thought that the negotiations had stalled when we hadn’t even received what they were asking for. So I couldn’t understand how we could be at that point when we hadn’t determined the scope and we hadn’t received a log of claims.

PN291

I have no further questions at this point.

PN292

THE COMMISSIONER: Thank you. Any cross-examination, Mr Garrett?

CROSS-EXAMINATION BY MR GARRETT [1.33 PM]

PN293

MR GARRETT: Mr Ford, can I just clarify your position with Manly Fast Ferry?‑‑‑I’m Director of Manly Fast Ferry.

PN294

So you have some say in the operation of the business?‑‑‑Yes, I do.

PN295

How long have you been with Manly Fast Ferry?‑‑‑Since its start; 2009.

*** RICHARD FORD XXN MR GARRETT

PN296

Before that, where were you working?‑‑‑Bass and Flinders.

PN297

How long had you been with Bass and Flinders?‑‑‑It’s a family business. I’ve been with it since we started.

PN298

That would be?‑‑‑About 20 years.

PN299

So it’s fair to say you have a little bit of experience in the maritime industry?‑‑‑I have experience in the maritime industry, yes.

PN300

I daresay a bit more than a little bit. Are you conversant with the rules of the Maritime Union, Mr Ford?‑‑‑No, I’m not, Mr Garrett.

PN301

Are you conversant with the rules of eligibility of the Australian Maritime Officers Union?‑‑‑No, I’m not, Mr Garrett.

PN302

Are you conversant with the rules of eligibility of the Australian Institute of Marine Power Engineers?‑‑‑No, I’m not, Mr Garrett.

PN303

Are you aware of the Maritime Union covering classifications elsewhere in Sydney Harbour other than general purpose hand?‑‑‑No. The first time I was aware of that was, I think, during our discussion at the meeting last week where you raised the fact that it did cover other instances.

PN304

So you’re not aware of MUA members at Captain Cook Cruises n operating positions?‑‑‑No. No, I’m not.

PN305

Blue Line Cruises?‑‑‑No, I’m not, Mr Garrett.

PN306

Matilda Cruises?‑‑‑No, I’m not.

PN307

National Maritime Services?‑‑‑No.

PN308

(Indistinct)?‑‑‑No.

*** RICHARD FORD XXN MR GARRETT

PN309

Harbour City Ferries?‑‑‑It’s my understanding that the MUA covered the deck hands and crew on the vessels, and that the other unions, the AMOU and AIMPE cover the engineers and masters. That is my understanding.

PN310

How do you form that opinion?‑‑‑From my experience on the harbour but not in any study of those classifications.

PN311

So you couldn’t say with absolute qualification that you’re correct? It’s only an assumption?‑‑‑No, Mr Garrett, that’s what I said.

PN312

Sorry, can you clarify, is that an assumption?‑‑‑I don’t have intimate knowledge of the rules. I am going on the experience that I have on the harbour.

PN313

What if I put to you that the Maritime Union and unions forming the Maritime Union previous to 1993, dating back many decades, have covered people in the category of master on Sydney Harbour; are you aware of that?‑‑‑No. No, I’m not, Mr Garrett.

PN314

So it’s fair to say you’re not an expert on the rules of eligibility?‑‑‑No, I think I’ve stated that, Mr Garrett.

PN315

That’s fine. Eligibility rule 1(d)(iii) and I quote, it states:

PN316

All persons employed on or usually employed in connection with ferry boats –

PN317

end quote, when it talks about the rules of eligibility. Your vessels, would you class them as ferries?‑‑‑Yes, I do.

PN318

Would you say that your employees are employed on or usually employed in connection with those ferries?‑‑‑The vessels operating – the employees operating on the ferry between Manly and Circular Quay, yes, I would.

PN319

Thank you. So, therefore, by the reading of those rules, it would be a fair assertion that that eligibility rule covers your employees?‑‑‑I can’t make that - - -

PN320

MR McCARTHY: I object. I don’t think that’s a reasonable question, particularly given the answers that Mr Garrett already received to the earlier questions to establish that the witness has no expertise or knowledge of constitution or coverage or rules.

*** RICHARD FORD XXN MR GARRETT

PN321

MR GARRETT: I haven’t had time to go through a witness statement with any great preparedness. I think I’m entitled to cross-examine as – I’m happy to move on but I am entitled to cross-examine the oral evidence.

PN322

THE COMMISSIONER: I’m not going to stop your questioning.

PN323

MR GARRETT: Thank you. You say that you’ve spoken with your employees about the conditions of employment prior to the union getting involved in the negotiations. Is that statement correct?‑‑‑Yes, it is. I’ve spoken to a number of our employees, our long-term employees.

PN324

You issued a Notice of Employee Representation Rights prior to those discussions?‑‑‑No, I did not.

PN325

Why did you not do that?‑‑‑I didn’t – I wasn’t aware that we had to do that. We went down to talk to the employees of what they wanted to do going forward.

PN326

Would you be surprised if I told you that those conversations would be invalid by virtue of the fact that an NERR hadn’t been issued?‑‑‑I would be surprised because my advice is that once the request for that notice – the NERR notice came out, then I wasn’t able to talk to them but prior to that, I was able to talk because there was no negotiation started.

PN327

But if you take your position forward, you were looking to negotiate the terms and agreement of their employment. Yes?‑‑‑Yes.

PN328

You are aware that an NERR has to be issued?‑‑‑No, I wasn’t aware.

PN329

Why weren’t you aware? Did you not inform yourself of the requirements under the Fair Work Act?‑‑‑No. At any time I believe I can talk to my staff about their employment conditions, how the roster – how they’re handling with issues within the workplace, and that was the nature of the discussions.

PN330

So you believe that you don’t have to comply with the Fair Work Act?‑‑‑I didn’t say I don’t have to comply with the Fair Work Act.

*** RICHARD FORD XXN MR GARRETT

PN331

The Fair Work Act is very specific, Mr Ford, with respect to the NERR and with respect to negotiating conditions. Can I ask, your previous agreement in 2009, do you know when it expired?‑‑‑The agreement was – it didn’t expire. The – I sought advice on that when the expiry date came forward and my advice was that that agreement continues in place unless the employees and employer put an application in to cancel the agreement.

PN332

So you believe you’re entitled to speak with your workers about their employment conditions and renewing the agreement, but don’t need to issue a Notice of Employee Representation Rights?‑‑‑I understood I was able to talk to my employees who approached me about talking about their employment conditions.

PN333

Did you ever have any intent of renewing the 2009 agreement?‑‑‑As I said, Mr Garrett, I was starting the discussions with the employees. I contacted them - - -

PN334

Sorry, can I – a yes/no question?‑‑‑Well, I - - -

PN335

Did you ever have any intent of renewing the 2009 agreement?‑‑‑I had the intent to get an agreement with the employees. How that agreement - - -

PN336

Again, sorry, it’s a yes or no question. Do you - - -?‑‑‑I didn’t have a position on it.

PN337

You’ve just given two answers. Which one do you choose?‑‑‑I didn’t have a position on whether the employees and the company would enter into a new agreement or whether they wouldn’t. I was – that’s why I commenced discussions with the staff in relation to - - -

PN338

Thank you. So what was the purpose of speaking with your employees then if it wasn’t to renew the enterprise agreement?‑‑‑To find out what the employees wanted to do.

PN339

What did the employees tell you?‑‑‑The employees told us that they didn’t want to – initially they were happy to discuss it directly with the company, and to proceed with an agreement going forward, whether that be continuing with the existing agreement or whether it needs a new agreement, that was not – it didn’t get to that level of discussion.

PN340

When was the last time your workers had a pay increase?‑‑‑The workers got a pay increase at the 2012, 2013 – 2012, I think. 2013 from my recollection. The reason for that was that we discussed with a lot of the workers the competitive nature of our industry, that there was two competitors and that there was not the scope for a pay rise in that environment.

*** RICHARD FORD XXN MR GARRETT

PN341

Thanks. Can I ask the question again? When was the last time your workers had a pay increase?‑‑‑I’d have to check on that detail to be precise.

PN342

So you’re not aware of the last time they had a pay increase?‑‑‑I don’t have the exact date.

PN343

You had a document that nominally expired on 31 March 2012. Did they get a pay increase before or after that?‑‑‑They got pay rises before that and I’d have to check on the dates after.

PN344

So you can’t confirm that they had a pay increase after that?‑‑‑No, I can’t confirm that.

PN345

So is it your evidence then your workers were happy to continue as is, some three years later without a pay increase?‑‑‑No, I didn’t say that. I said I have to confirm the dates of when the pay rise was.

PN346

That’s not the question that I’ve asked. You’ve said you’ve spoken with your workforce?‑‑‑Well, I can’t answer - - -

PN347

You said you’ve spoken to your workforce?‑‑‑Yes, I have.

PN348

You would have asked your workforce a question about wage increase?‑‑‑In the recent discussions, in April, are you referring to?

PN349

In the discussions you’re referring to, Mr Ford?‑‑‑Yes. Yes.

PN350

Did the workers indicate to you they were happy not receiving a wage increase?‑‑‑No, they weren’t. They were after a pay rise.

PN351

So the workers indicated to you they were after a pay rise?‑‑‑Yes, they did.

PN352

So, in effect, you were negotiating terms and conditions of employment with those workers?‑‑‑I can’t answer that against the rules but - - -

PN353

Sorry, what rules?‑‑‑Well, against – if you’re asking me in relation to the Act - - -

*** RICHARD FORD XXN MR GARRETT

PN354

I’m asking you in relation to your conversations whether you were speaking to them about a pay increase three months afterwards?‑‑‑Well, as an employer it was my understanding that we talked to the employees as to what conditions they want.

PN355

Those conversations were before any Notice of Employee Representation Right had been issued?‑‑‑That’s correct.

PN356

So you had, indeed, entered negotiations with your workers, albeit informal?‑‑‑Yes.

PN357

You were discussing things like rosters?‑‑‑We hadn’t got to discussion of rosters.

PN358

You had intended to discuss rosters?‑‑‑We had intended to.

PN359

You had intended to discuss wages?‑‑‑I had intended to discuss wages.

PN360

You, indeed, talked about pay increases by what you’ve just said?‑‑‑Yes.

PN361

So, therefore, you were negotiating with your workers. Would it be fair to say then, Mr Ford, when the NERR came out the union went ahead with the technicalities of confirming that they were a bargaining representative?‑‑‑Yes.

PN362

To that point did the union ask you previously to meet to discuss EBA negotiations?‑‑‑As I said, on 13 April you contacted me by phone.

PN363

I’m happy with a yes or no?‑‑‑On 13 April you contacted me, yes.

PN364

Yes. So the union had pressed you for negotiations?‑‑‑On 13 April, yes.

PN365

Yes. Talking about the contract with the government, again, when did you win the contract with the government?‑‑‑On or around 15 December.

PN366

If you had been successful in winning that contract, you would have needed things such as boats?‑‑‑Yes.

*** RICHARD FORD XXN MR GARRETT

PN367

You had that resolved?‑‑‑No.

PN368

You would have had to resolve things such as rosters?‑‑‑Yes.

PN369

Those rosters would be - - -?‑‑‑No. No. We had to put - - -

PN370

Sorry. Thank you. I’ve got the answer. Those rosters would be to service timetables?‑‑‑The timetables were being determined through January/February, as I stated earlier.

PN371

You would have had to resolve rosters to service timetables though. That would be correct?‑‑‑After the timetables were set, yes.

PN372

You would have had to have adequate staff to service those?‑‑‑That’s correct.

PN373

You were working under a government contract?‑‑‑Not until 1 April.

PN374

But you would have been from 1 April?‑‑‑Yes. Correct.

PN375

So there would have been an assumption that preparedness had to be there to fulfil that government contract?‑‑‑Yes.

PN376

You would have been required in your tender to limit things such as industrial risk and industrial action, no doubt, or maybe a different way – have industrial arrangements put in place with your workforce?‑‑‑I don’t think it was specific on that account but we did - - -

PN377

Sorry, let me rephrase that. The government of New South Wales issued a transport contract to tender, and Manly Fast Ferry responded, and nowhere in that tender did it require the successful tenderer to have any responsibilities when it came to industrial relationship and industrial conditions covering their employees?‑‑‑No, that’s not what I said. They did require you to have an industrial instrument in place – an agreement in place, sorry.

PN378

THE COMMISSIONER: Mr Garrett, I’m sorry but you’re going to have to resume the cross-examination at 3 o’clock. We’ll adjourn until then.

PN379

MR GARRETT: Thank you.

<THE WITNESS WITHDREW [1.46 PM]

LUNCHEON ADJOURNMENT [1.46 PM]

RESUMED [3.14 PM]

<RICHARD FORD, RECALLED ON FORMER OATH [3.14 PM]

CROSS-EXAMINATION BY MR GARRETT [3.14 PM]

PN380

THE COMMISSIONER: Yes, Mr Garrett. I'm sorry about the delay but this happens when we try to run two proceedings at the one time.

PN381

MR GARRETT: No issue, Commissioner. Am I right, to proceed?

PN382

THE COMMISSIONER: Yes.

PN383

MR GARRETT: Thank you.

PN384

With respect to the line of questioning, we were talking about, Mr Ford, the interaction between Manly Fast Ferries and its employees on the announcement of winning the tender. Just to refresh with the intermission, when was Manly Fast Ferries aware that they won the tender?‑‑‑On or around the 15th of December.

PN385

In preparing for the tender, can I ask you did take into account industrial arrangements moving forward? Was that a consideration of the Manly Fast Ferries team?‑‑‑Yes, it was.

PN386

At what point in your plan did you foresee having to have those discussions?‑‑‑I had hoped to have them before the commencement the 1st of April but negotiations, timetables and the vessels and knowing whether - what rosters we might have, I explained to the staff that we would have them shortly after the commencement of the service.

PN387

So you did speak to the staff on the industrial arrangements?‑‑‑I did.

PN388

Did Manly Fast Ferry make any considerations to that at the time the tender was actually announced to the - sorry, I'll withdraw that and do that again. Did Manly Fast Ferries give any considerations to the industrial arrangements and the negotiations of said industrial arrangements when Transport for New South Wales announced the tender?‑‑‑I'm not completely clear on your question.

*** RICHARD FORD XXN MR GARRETT

PN389

When the tender was announced did you consider that you may have to negotiate a new enterprise agreement?‑‑‑Yes, that’s I - as explained we had a meeting with staff that were current at the time and we explained to them the time process that we would do that.

PN390

What date was that meeting approximately?‑‑‑It was on the - somewhere around January, early January.

PN391

Do you have a Facebook account at Manly Fast Ferries?‑‑‑Yes, we do.

PN392

Do you recall any posts that you put out on 31 July 2014?‑‑‑I don't put out the posts.

PN393

Specifically if I can read it to you, on 31 July 2014 at 1403 and I quote:

PN394

A lot of inquiries and support for Manly Fast Ferry so our heartfelt thanks for that. But with respect to the tender we cannot make any comment apart from we are quietly confident that we can win. However if you feel strongly about this please feel free to talk to our staff about it at least because it's their jobs on the line as well. So every bit of positive feedback gives them a confidence boost as well.

PN395

Do you recall that Facebook post?‑‑‑Yes, I do now that you've read it out.

PN396

So with respect to it, it does acknowledge, you would say there Mr Ford, the fact that Manly Fast Ferries were quietly confident of winning the tender?‑‑‑To answer that, no. Internally we weren't as confident as this was a public tender. We had people with jobs. We had passengers who were riding the service. If they thought that we weren't confident of winning the service - the tender then we had real concerns in maintaining those employees and the passengers moving through the tender process. So we had to have a positive outlook but internally that may not have been the case.

PN397

But if you were making public statements that you were quietly confident of winning, which has been done off the Manly Fast Ferry account?‑‑‑That's correct.

PN398

Would there not be some assertion internally that the enterprise agreement needs to be resolved at some point?‑‑‑No, I don't agree with that.

PN399

So in the second sentence of your Facebook post you do say again, and I quote:

*** RICHARD FORD XXN MR GARRETT

PN400

Please feel free to talk to our staff about it at least because it's their jobs on the line as well.

PN401

And it goes on. End quote. You're conscious of the fact that it's their jobs. You're conscious of the fact that you're quietly confident of winning but there's no consideration whatsoever about enterprise agreement negotiations. That was an afterthought, is that what you're saying?‑‑‑No, that's not what I'm saying. I've - as I explained to the staff that there was no point in entering negotiations if we didn't have a job. At that stage there was no certainty that we had a job and that's where we met with the staff and explained that we would have those discussions after the process.

PN402

So may I ask very directly had that tender been unsuccessful, Manly Fast Ferries would have folded?‑‑‑Quite possibly. We wouldn't be operating to Manly and Circular Quay. As per the legislation we weren't able to, so.

PN403

But in the meantime they would have continued to operate?‑‑‑Yes, up until April 1.

PN404

We touched on the conversations that you had with our workers where you indicate that you had discussed wages with them. Can I ask what those discussions were again with respect to remuneration and rosters?‑‑‑What the - in relation to what numbers or what detail?

PN405

What date? You indicated you'd spoken to your workers previously about remuneration and rosters?‑‑‑Well, we did on a number of occasions.

PN406

What dates please, Mr Ford?‑‑‑I don't have a complete recollection of the dates today but as I said - - -

PN407

Could you approximate?‑‑‑Yes we had a meeting, as I said earlier, in January explaining the process after the announcement of the tender, and I spoke to the workers again in - it would be late February, early March, and then again I started talking to them on the 10th or 8th or 9th of April. I started that communication again.

PN408

So there's approximately four different times where you've had conversations with your workers about matters such as remuneration and rostering?‑‑‑No, we haven't had the conversations about the detail. We had the conversations about when those discussions would take place.

*** RICHARD FORD XXN MR GARRETT

PN409

Would it be fair to say then you had considered in your mind that and enterprise agreement negotiation was forthcoming?‑‑‑Yes.

PN410

Yes, and you would say that from there you had agreed to enter into negotiations at some point?‑‑‑Yes.

PN411

Do you know roughly what date that was where you had agreed to enter into negotiations?‑‑‑On my understanding of the rules I entered - I agreed to enter negotiations as per our conversation or the delivery of the - - -

PN412

No, I was - - -?‑‑‑- - - of the notice.

PN413

No, no, I'll stop you. None of my questioning just prior was in regards to that. My questioning was in respect to your conversations in January, late February, early March and 9 April?‑‑‑Well - - -

PN414

And I asked you had you agreed to enter into negotiations at that point and you had said yes. Are you now changing that?‑‑‑At no point in those discussions had the staff requested an EBA negotiations. The staff I had spoken to requested that they talk about their pay rates.

PN415

So no staff at any point had spoken to you - - -?‑‑‑Prior - - -

PN416

- - - at any time prior to the April, of an enterprise agreement?‑‑‑That's correct.

PN417

And no one had put to you about clarifying permanency, rosters or wage increases?‑‑‑The staff - individually the staff requested that they were interested in talking about full‑time employment and I said that I am more than happy to accommodate that, and I was prepared to do that under the existing agreement we had in place if that was the discussions we had.

PN418

But not one of them mentioned to you about the enterprise agreement updating?‑‑‑Not one.

PN419

I remind you Mr Ford you're under oath?‑‑‑I'm comfortable with my answer, Mr Garrett. Not one of them has requested it.

*** RICHARD FORD XXN MR GARRETT

PN420

So you decided on your own goodwill not to enter into enterprise agreements although you said you'd agreed to enter into negotiations previously?‑‑‑Yes.

PN421

But now you're saying you're not entering in, and you're agreeing to talk about wage increases and dealing with matters like rosters and permanency, but at no time were you ever going to consider renewing the 2009 agreement which expired on 31 March 2012?‑‑‑As I have explain - - -

PN422

Is that your evidence?‑‑‑Yes, as I explained earlier it was my understanding that that agreement was still active until it was at - until it was specifically terminated, and that I could negotiate around the terms of that agreement under the staff's requests. At no time did they request a new EBA negotiations. It was my understanding that I was negotiating permanency and that, around that agreement not a new agreement.

PN423

When you say negotiate around that agreement can you give some further explanation please what you mean by that?‑‑‑Well, some of our long term staff requested now that we had the contract would we consider putting them on full‑time. I had offered them full‑time - some of them full‑time employment prior and they chose to stay on the casual rate, and so we were going to re-start those negotiations with some of those long term staff.

PN424

You indicated you were speaking with your masters prior to the union making contact with Manly Fast Ferries for an enterprise agreement. Is that correct?‑‑‑Yes, I had spoken to some of the masters.

PN425

Could you outline the nature of those discussions please?‑‑‑I asked them how - I had meetings with some of the masters and asked them how they were - what their opinion of the new service was, how it was fitting in with their rosters, how - any concerns about the operation, any concerns about the timetable. So we had discussions around how the new service was in their opinion impacting them and any concerns they may have, including safety, operations, timetables, and rosters as to where that fitted in.

PN426

And none of these are enterprise agreement matters?‑‑‑No, none of them raised it as an enterprise agreement bargaining.

PN427

Are any of these matters raised in the 2009 agreement?‑‑‑I don't understand the question.

*** RICHARD FORD XXN MR GARRETT

PN428

Well, rosters, wages, the matters you just addressed with the masters; are any of those included in the 2009 agreement?‑‑‑Yes, there's clauses in the 2009 agreement about rosters, full‑time, and rates.

PN429

So it's your evidence that you would be prepared to have the discussions with your workers on these matters, but it wouldn't be part of any other new enterprise agreement; as you said, you would work around the enterprise agreement or words to that effect?‑‑‑As I've stated, I started talking to them about what their concerns and what they required going forward, what their concerns and what their requirements were and then we were going to cooperatively agree on the best way forward from there.

PN430

And did they indicate how they cooperatively seeked to move forward with Manly Fast Ferries?‑‑‑It was my understanding that from the people I spoke to, they were happy to talk to me and we were progressing those negotiations and then we - then as of April 13th, your phone call, we stopped those discussions.

PN431

Sorry, can I just check. You said you were progressing those negotiations. Can I just confirm that you've just said that?‑‑‑I said I was progressing those discussions.

PN432

You said negotiations?‑‑‑I may have said negotiations but it was discussions.

PN433

Well, can I put to you that you actually said negotiations and there was a reason why you said negotiations?‑‑‑No.

PN434

And secondly, may I put to you - may I ask you why would you stop those discussions / negotiations? Why would you stop those if your notice of employment representational rights didn't include masters?‑‑‑Because when I started the negotiations I was informed by my advice that I couldn't progress with any discussions or negotiations with any of the crew. So I didn't include the masters. We didn't progress that because as per the timelines that I've explained, that your phone - our phone call between yourself and me was on the 12th or 13th of April. I was on leave till the 21st. I came back on the 22nd and met with Mr McCarthy and we proceeded to make arrangements to start the negotiations as requested by you. So in that period I didn't have time to continue negotiations with the masters.

PN435

I'm sorry, could I pick you up again. That's the second time you've used "negotiations"?‑‑‑I'm sorry. Discussions. I stand corrected.

*** RICHARD FORD XXN MR GARRETT

PN436

So that being said, once again we're in a position of a confusion of negotiations and discussions. If you're confused about whether it is negotiations, can I put it to you that your workers can be confused about whether it's negotiations? Twice you've given evidence under oath of - and used the word negotiations. Aren't your workers entitled to be confused as well?‑‑‑Look, as I said at the start of this process I am not an expert on the rules or the laws. I go by the advice that I was given, and whether I'm using the word - term negotiations or discussions is not a reflection on the relationship it has to the law, more that I'm having discussions about to - with my employees about what they're requesting me to discuss.

PN437

I'm not sure how to respond to that. So essentially your evidence is you were having negotiations that were discussions about matters pertaining to the employment relationship and updating those subject to a new government agreement, however they weren't negotiations for the purposes updating an enterprise agreement. Is that a fair way to summarise your evidence?‑‑‑I would say that my understanding is that we could progress with the agreement that was in place from 2009 and that many of the staff understood that to be the case, and that they wanted to discuss different conditions that were encompassed within that agreement and not necessarily a new EBA, and that was the understanding of my discussions with them.

PN438

Well I put it to you, Mr Ford, I'd probably have to review the transcript on that to understand the actual position of Manly Fast Ferries because you've asserted several positions in what you've put forward. And essentially your evidence is you seek to have negotiations / discussions, and I put it to you that you're seeking to have negotiations but hiding it under discussions. Can I ask then with respect to that what is your intent for the masters, mates and engineers at Manly Fast Ferries, noting that they're not in the notice of employment representational rights?‑‑‑It's exactly the same as it - the - as I understand the masters and engineers and each employee group can negotiate as - or sorry, discuss their employment conditions under the existing conditions - under the existing agreements that are in place, or through those discussions they can elect to commence bargaining on a new EBA.

PN439

Can we work on the basis that we've read the elementary version of how to negotiate enterprise agreements and go back to the question that was asked. What's your intent with the masters, mates and engineers with respect to negotiations? But before you answer it I might also put in a second question to answer it in total; which industrial agreement covers the masters, mates and engineers at Manly Fast Ferry?‑‑‑Well, subject to the discussion we had on the meeting on Thursday I am still - there was some legal discussion - - -

PN440

Let me split the question?‑‑‑Yes.

*** RICHARD FORD XXN MR GARRETT

PN441

So we don't confuse it?‑‑‑Okay.

PN442

What enterprise agreement covers the masters, the mates and engineers at Manly Fast Ferries today?‑‑‑The enterprise agreement covers the - that covers the deckhands and ticket sellers is the MUA agreement that was in place from 2009 because that under my understanding has not been terminated. Likewise there's an agreement in place for the masters that was negotiated in 2009 that's also - continues on.

PN443

Do you have the title of that agreement?‑‑‑Not with me.

PN444

Was that agreement ever registered?‑‑‑I believe it was.

PN445

Are you aware of any reason it can't be found when it's searched under the Fair Work Commission database?‑‑‑I'm not an expert. I don't search on that but from my understanding it was in place in 2009 and that's the one that we've been working off.

PN446

Can I put it to you that other people who regard themselves as experts in the industry have searched the database and can't find any agreement that covers those workers?‑‑‑I haven't got an answer for that Mr Garrett.

PN447

Can I ask you what the nominal expiry date of that agreement is?‑‑‑It did say an expiry date as the MUA agreement(sic).

PN448

So it would be - - -?‑‑‑Because it was in the same - - -

PN449

- - - 31 March 2012?‑‑‑I understand that to be the case.

PN450

So it would be past the nominal expiry date?‑‑‑Yes.

PN451

So do you know who the signatory of that agreement is?‑‑‑Who?

PN452

The signatory of that agreement is?‑‑‑The crew? The crew?

PN453

The signatory of that agreement?‑‑‑Once again the technicality of that question, and I don't understand what you're asking.

*** RICHARD FORD XXN MR GARRETT

PN454

Either way for the purposes of the Act, in section 438 of the Act where it states:

PN455

If one or more enterprise agreements covers the employees who will be covered by the proposed enterprise agreement an application for a protected action ballot order must not be made more than 30 days before the nominal expiry date of the enterprise agreement or last nominal expiry date of those enterprise agreements (as the case may be).

PN456

It would be fair to say that both agreements, if the second one does exist, are beyond 30 days within the nominal expiry date?‑‑‑Yes, that would be fair to say.

PN457

So it would be open to the parties to negotiate a new enterprise agreement?‑‑‑I understand that to be the case.

PN458

What is Manly Fast Ferries intentions with respect to negotiations with the MUA to resolve the enterprise agreement?‑‑‑We have all intentions to proceed with the negotiations and reach an agreement for the EBA.

PN459

Do you propose to resolve it inclusive of all classifications?‑‑‑I don’t have the answer to that because I am - as I said the technicalities of that are being discussed today and haven't been resolved. So I don't have a position on it at this stage.

PN460

Did you not foresee that that would be an issue for the MUA, noting conversations that we have had as well as formal correspondence of the union in April?‑‑‑That's why it was item 2 on the scope of agenda for last week's meeting, so that we could resolve that discussion.

PN461

So by virtue of it being on item 2 of the agenda of last week's meeting you accepted that there was a point of negotiations?‑‑‑Because of what I - - -

PN462

It's a yes / no question, Mr Ford?‑‑‑Yes.

PN463

So with that basis then you accepted it was a point of negotiations, you would accept that the parties were negotiating on the point?‑‑‑No, no, I don't accept that there was a negotiation on the point. But I accept that there was a - an item for discussion as to the scope.

*** RICHARD FORD XXN MR GARRETT

PN464

Can you define discussion and can you define negotiation please Mr Ford?‑‑‑Well, the inference of your negotiation was that we came into the meeting open to the discussion about the - open to the negotiation about whether there - - -

PN465

Can I stop you, Mr Ford. Can you define discussion and define negotiation? It may speed up this cross‑examination?‑‑‑A discussion about the scope in my opinion of what we were doing was to discuss who was covered by these EBA negotiations and who wasn't.

PN466

And negotiation?‑‑‑Negotiations in my opinion are around the terms of the EBA.

PN467

Do you recall the correspondence you sent of 8 May 2015? If you had a copy there it may assist. It's attachment 6 in Mr Drane's witness statement?‑‑‑Yes, I have that in front of me.

PN468

Could you read out the regarding line, in bold and in upper case, of that letter please?‑‑‑

PN469

MFF seeking to arrange an initial negotiation meeting for a proposed new MFF enterprise agreement.

PN470

MR GARRETT: Do you note the word "negotiation"?‑‑‑I do.

PN471

Do you see the last paragraph on that paragraph?‑‑‑Yes I do.

PN472

Could you please read it?‑‑‑

PN473

MFF will be encouraging both union and non-union employees of the company to offer to participate in the bargaining process themselves or to nominate other employees to do so on their behalf. MFF believes that the direct involvement of a number of its employees in the bargaining process will be invaluable to ensuring informed employee input to the negotiations as well as an improved quality of outcomes of the final negotiated agreement as well as employee ownership of and commitment to the final enterprise agreement reached.

PN474

MR GARRETT: Thank you. Do you note the word of "negotiations" and "negotiated" in that paragraph?‑‑‑Yes I do.

*** RICHARD FORD XXN MR GARRETT

PN475

Thank you. Can I take you over to the next page. Could I ask you to read the first paragraph?‑‑‑

PN476

We would ask the MUA to support and encourage our proposal for direct employee participation in the negotiations.

PN477

Thank you. Do you note the word "negotiations" in that paragraph?‑‑‑I do.

PN478

To save us the time do you note twice the use of - or negotiations and negotiation in the next paragraph?‑‑‑Yes, I do.

PN479

Would it be fair to say then the assumption of the union was that that meeting was a set of negotiations not "discussions"?‑‑‑In relation to the scope of the notice that was sent out, yes I do.

PN480

So where is the definition in your letter that breaks down the difference between negotiations versus discussions?‑‑‑Well Mr Garrett, the negotiations were in relation to the notice, from the first paragraph, the notice of employee representational rights which covered the deckhands and the host and hostesses, and they were the matter that we were negotiating. We added - the discussion was on item 2, was the scope. So there was two different concepts there that I understood.

PN481

In that letter you refer to?‑‑‑Yes.

PN482

Despite paragraph C?‑‑‑All the references in this letter is to the notice of employee representational rights which was sent to the deckhands and the host and hostesses on the vessel, not in relation to any other classification.

PN483

Why?‑‑‑Because that's what we understood was the matter under negotiation.

PN484

The three delegates that attended, you're aware of their employee classifications?‑‑‑Yes, I am.

PN485

Were any of them operators masters?‑‑‑Yes they do(sic).

*** RICHARD FORD XXN MR GARRETT

PN486

And why didn't you object to their attendance?‑‑‑Because under my understanding of this notice is that the employees can nominate anyone to be their bargaining representative including by default the union or any other person. So if a deckhand wants a master to represent them in the negotiations as a bargaining representative or attend then that's within the rules of the negotiating process.

PN487

Did you refer - did you advise those employees at that time of that position of Manly Fast Ferry with respect to their attendance?‑‑‑No, I did not.

PN488

Any reason why you didn't, Mr Ford?‑‑‑As they were union members and as that you'd nominated them I assumed that they were understanding of their responsibilities to represent at the bargaining meeting and I didn't feel any need to notify them of anything different.

PN489

Can I take to that meeting. Did the MUA provide a log of claims at that meeting?‑‑‑No they did not.

PN490

Just one moment, Mr Ford. Did the MUA indicate that they had a log of claims prepared?‑‑‑Yes, because the - at the end of the meeting you notified us that there was a log of claims that they'd prepared but there was still items to be modified and that it would be forwarded to us in due course.

PN491

I put it to you that's not correct. Can I put it to you that the statement that was made was that "A log of claims has been prepared but just needs to be checked and will be forwarded through this afternoon"?‑‑‑I understand that to be the same as my recount.

PN492

Well, I put it to you the two positions are different. "In due course" and "this afternoon" is quite different. Do you recall that position?‑‑‑I don't recall the exact timeframe. I understood that there was certain clauses there that you wanted to review and it would be forwarded to us.

PN493

But can I put it to you that in evidence - which I might point out was unchallenged by Manly Fast Ferries - of Mr Drane and he states at paragraph 13:

PN494

On Thursday 14th of May the parties convened their first meeting. A log of claims was briefly foreshadowed at the meeting and forwarded via email to the meeting. A copy of this correspondence is found at attachment A.

PN495

Is that not a fair statement?‑‑‑That's what happened but that doesn't describe what was said at the meeting as to when those log of claims would be delivered.

*** RICHARD FORD XXN MR GARRETT

PN496

So when do you say the log of claims were going to be delivered?‑‑‑We didn't have a timeframe. It was when they were ready or in due course.

PN497

So essentially your evidence is that you were prepared to enter into negotiations, that you'd had previous discussions, that there's a clear difference between discussions and negotiations and this meeting was purely a scope meeting with absolutely no discussions or negotiations whatsoever on any account, any position, any matter that's related to the employment relationship between your workers and your company?‑‑‑No, we had the position that we had an agenda which we provided to our employees and the union prior to going into the meeting. Scope was item 2 so that could be clarified early and then the further items were listed as to a clear agenda of what we expected out of the meeting.

PN498

And the union didn't press any claims in that meeting whatsoever?‑‑‑It's my understanding that we got to item 2 as a matter of scope and there was discussions and that we were to get back to the union by Wednesday this week and the members as to a response in that discussion of scope.

PN499

Could I put it to you that the two employees of the union in the room collectively had 26 years of experience working for the trade union movement and may have assumed those discussions to be actually negotiations? How would you respond to that if I put that to you?‑‑‑I don't have a position on that.

PN500

Can I put it to you that it was an expectation based on your correspondence for negotiations to happen, and whilst not all matters were resolved there was a point where some of those matters, if not one of those matters, were still negotiated and put forward?‑‑‑We hadn't received the log of claims as per the meeting so I'm not sure how we could progress negotiations.

PN501

Can we talk about Manly Fast Ferries log of claims for a moment. Did you provide a log of claims to the union?‑‑‑No, we did not.

PN502

Is there a reason why not?‑‑‑We didn't have a log of claims prepared for that meeting as per the scope. The agenda on the meeting was not to lodge the log of claims in that meeting.

PN503

Was that agenda agreed?‑‑‑It wasn't disputed.

PN504

That's not the question. Was that agenda agreed?‑‑‑I can't answer that. I don't have an affirmative or negative response to answer that.

*** RICHARD FORD XXN MR GARRETT

PN505

Did anyone from the Maritime Union of Australia agree to that agenda?‑‑‑I didn't get an agreement from the Maritime Union.

PN506

So no?‑‑‑But I didn't get a - - -

PN507

So no?‑‑‑Well, Mr Garrett, I don't know if you agreed or not. I didn't get any correspondence.

PN508

So there's - - -?‑‑‑I can't answer.

PN509

- - - a number of points which it appears that you're not fully conversant with, with respect to these negotiations?‑‑‑I can't answer whether you agreed or not agreed. You turn - you received the agenda and you turned up to the meeting without any notification. I can only assume you agreed with the agenda.

PN510

Would you not say that your letter advising that the meeting is on with the time and date isn't notification in itself?‑‑‑The meeting - the letter with the meeting and the date, yes, is notification.

PN511

And that that was accepted by virtue of the fact it was received?‑‑‑Yes.

PN512

Thank you. So with respect to the negotiations then it's your position that the MUA hasn't bargained in good faith; would that be a correct position?‑‑‑No, that's not a correct position.

PN513

So you say the MUA has bargained in good faith?‑‑‑We're not here - I don't have a position whether you've bargained in good faith or not. But what we're here - what I understand is that we haven't got to the point where we're bargaining about a log of claims because up until 4 o'clock after the meeting we haven't received a log of claims to bargain.

PN514

But you did receive it at 4 o'clock didn't you?‑‑‑Yes. Yes, we accepted that we had received that at 4 o'clock.

PN515

Did you read it at 4 o'clock on Thursday afternoon?‑‑‑No, I did not read it at 4 o'clock - - -

PN516

Did you read it on Friday?‑‑‑Yes, I would have read it Friday.

*** RICHARD FORD XXN MR GARRETT

PN517

So you have read the log of claims?‑‑‑I have read the log of claims.

PN518

Has the MUA not attended or participated in meetings at reasonable times?‑‑‑Yes they have.

PN519

Has the MUA not disclosed any relevant information in a timely manner, or is not applicable?‑‑‑Yes, I don't know if you've disclosed information that you may have that you should have disclosed so I can't answer that.

PN520

To the company?‑‑‑I can't answer that.

PN521

Has the MUA not - - -?‑‑‑I don't know what information you have that you may have or may not have disclosed.

PN522

Has the MUA not responded to proposals made by any other bargaining agents in a timely manner?‑‑‑Not to my knowledge.

PN523

Has the MUA not given any genuine consideration to the proposals of any other bargaining representatives?‑‑‑Not to my knowledge.

PN524

Has the MUA conducted in capricious or unfair conduct that undermines freedom of association or collective bargaining?‑‑‑I have concerns.

PN525

And what are your concerns?‑‑‑I haven't had time to investigate those concerns but I have concerns.

PN526

And what are those concerns?‑‑‑Is the information that's come to me that that may not be the case.

PN527

Well, the question directly is, is the MUA conducting in capricious and unfair conduct that undermines freedom of association or collective bargaining. You're a director of the company and one of the tests that the Commission has to find is whether the union is genuinely bargaining in good faith. It's well defined under section 228 and if we fail this test the Commissioner is obliged to decline the application. So the question is have we conducted in capricious or unfair conduct that undermines the freedom of association?‑‑‑No, I don't believe.

PN528

Thank you?‑‑‑The information I have to date.

*** RICHARD FORD XXN MR GARRETT

PN529

Thank you, and have we failed to recognise and bargain with the other bargaining representatives to the agreement?‑‑‑No, you haven't.

PN530

No, so can I put to you then section 228(1) of the agreement which deals with the specific requirements of good faith bargaining by your own evidence the MUA has met.

PN531

MR McCARTHY: Well, I don't think - if I could, Commissioner? This witness is in no position whatsoever so make a statement or adjudication about that section of the Act. He is completely unfamiliar with it.

PN532

MR GARRETT: Well, if the advocate is prepared to take the stand I'm happy to ask him the same question since he's now the bargaining agent.

PN533

THE COMMISSIONER: I mean, I accepted the witness is not familiar with those provisions.

PN534

MR McCARTHY: And he has answered every question which is a sub-part of each part of the section to his best knowledge and ability.

PN535

THE COMMISSIONER: Yes.

PN536

MR McCARTHY: Just for one or two.

PN537

MR GARRETT: And the union appreciates that he has answered the question - - -

PN538

MR McCARTHY: But he's asked to make some sort of general wrap-up observation about a section of the Act he wouldn't - - -

PN539

MR GARRETT: It's not a general wrap-up, Commissioner, and I'm offended that point has been made. The point specifically goes to capricious and unfair conduct. Now there's a point been alluded to, it was tested out, and the answer was "No". The question goes to good faith bargaining. He's a director of the company. By his own evidence he has been in the maritime industry for an extremely long time and would be well versed with these positions as well as negotiations of industrial agreements - and we'll come back to that. A question has been asked and answered and I'm prepared to move on.

*** RICHARD FORD XXN MR GARRETT

PN540

MR McCARTHY: Well no, hang on. If I could, Commissioner, I have to object to the approach that's being taken. In fact if you listen to the answer that was initially tried to be given by the witness he tried to indicate that there are matters that have come to his attention that he hasn't had the opportunity to investigate and establish them, and that caused him to not be a hundred per cent certain as to how he could possibly answer the question about capricious or inappropriate conduct. He then got pressed and given the fact that he hasn't investigated it, my take on it was he chose to let it slide. That's I believe a more accurate assessment of what really went on.

PN541

THE COMMISSIONER: Well, you can put that in submissions in due course I suppose if you wish to. I thought - you could probably make the submission to say that the question of good faith bargaining isn't the subject of the application.

PN542

MR GARRETT: But it's a test under the Act anyway that needs to be considered.

PN543

THE COMMISSIONER: I'm not sure that it necessarily needs to be traversed in respect of a protected action ballot order.

PN544

MR GARRETT: We seem to be traversing a number of points. I'm happy to move on and I indicated that before.

PN545

THE COMMISSIONER: Yes

PN546

MR GARRETT: Can I just take you back to the agreement that covers the mates and engineers and masters. Do you recall the title of that agreement?‑‑‑Not off the top of my head.

PN547

If I put it to you it's the Noorton, N-o-o-r-t-o-n Pty Ltd trading as Bass and Flinders Cruises Commercial Vessel and Whale Watching Officers Workplace Agreement 2009 would that sound familiar?‑‑‑That is. It's a long title and that's why I don’t remember it off the top of my head.

PN548

No, that's understandable. Can I put to you in the title it actually includes the Australian Business 95 817 171 759. Would that sound familiar?‑‑‑Yes it does.

PN549

Can I put to you then the enterprise agreement for the general purpose hands, host and hostesses and cashiers I think you've described them, as the Manly Fast Ferry 2009 Workplace Agreement; does that sound familiar?‑‑‑It does, yes.

*** RICHARD FORD XXN MR GARRETT

PN550

The words may be out of order but the intent is right. Can I put to you the ABN that's in the title of that number is 90 135 008 070?‑‑‑Yes.

PN551

Can I put to you that the two ABN numbers that I've read out are different?‑‑‑Yes.

PN552

Can I put to you that both those numbers represent two different companies?‑‑‑Yes.

PN553

Can I put to you then that there is no enterprise agreement covering Manly Fast Ferries for the purposes of masters, mates and engineers?‑‑‑Yes.

PN554

So you accept that there's no enterprise agreement covering them? This one is a yes or no?‑‑‑This - the masters were not employed originally under Manly Fast Ferry because we had that business before. They were employed by Noorton and Noorton is a fully owned - Manly Fast Ferries is a fully owned subsidiary of Noorton Pty Ltd.

PN555

Have you had any masters that have been employed since 31 March 2012 at Manly Fast Ferries?‑‑‑I would have to check on that. I don't do the direct employment.

PN556

So you're not aware of the masters in your business?‑‑‑I am aware of the masters in my business. I don't know their - all of their commencement dates.

PN557

Would you accept then that the ABN numbers for the Bass and Flinders Agreement and the Manly Fast Ferries are two different numbers?‑‑‑Yes, I do.

PN558

Would you accept then that that document was there designed to cover what it was written to cover, and that being the whale watching operation?‑‑‑Yes I do.

PN559

So therefore the agreement -or, sorry, the company, Manly Fast Ferry is employed - is agreed - I'm going to try that again. Would you accept that the agreement - I'll try that again. Would you accept that Manly Fast Ferry is EBA-free for the purposes masters, mates and engineers?‑‑‑Yes.

PN560

So then would you accept do they have a right to bargain for the conditions in the workplace?‑‑‑Yes they do.

*** RICHARD FORD XXN MR GARRETT

PN561

And would you accept then that the Fair Work Act gives capacity for them to have those discussions or negotiations with you?‑‑‑Yes, they can.

PN562

And would you accept then by virtue of that fact that the masters, when speaking to you in what they thought were negotiations and you thought were discussions, however it was described, was to change the conditions of their employment at Manly Fast Ferry?‑‑‑At no point during the discussions did they want to change the conditions. Well, did they make clear to me that they wanted to change the conditions? There was - the discussions were around the existing conditions that they were employed under and how they might be covered under those. There was no discussion about a different agreement.

PN563

Again I take you back to your previous evidence which you just agreed to, that there's no enterprise agreement which covers them. So how can they change the conditions of a document which doesn't exist?‑‑‑Well, as I said to you - answered previously, under my understanding those documents did continue on and formed a basis of the employment, and in the absence of one then the award becomes the base conditions.

PN564

So near enough was good enough?‑‑‑No, not near enough. We were compliant with the base award conditions. They were well above those conditions and that's - and we were employing them under those conditions.

PN565

Either way those discussions those masters had, do you believe - and this is speculation and before my old mate jumps up and objects - do you believe that in any capacity the masters would have believed that they were negotiating a new enterprise agreement in their discussions with you?‑‑‑No, I don't believe that.

PN566

Do you believe that in any way in their discussions with you they were negotiating outcomes which would affect their condition or contract of employment?‑‑‑Yes, because the terms of their rates of pay or classification would have changed under that agreement. So the answer to that would be yes, that it affected their terms of employment. Yes.

PN567

So therefore negotiations have commenced?‑‑‑But not for a new EBA as negotiations - the discussions were around the existing agreements or what - and how they were applied to their particular employment.

PN568

Do you think they were genuinely trying to reach agreement with you?‑‑‑I don't know - yes. Yes, I do.

*** RICHARD FORD XXN MR GARRETT

PN569

Sorry, you do think they were genuinely trying to - - -?‑‑‑They were trying - yes, yes they - it was my understanding they wanted to remain employed and they wanted to reach an agreement.

PN570

And what stopped you from getting agreement with them?‑‑‑The advice that I received to say that I could no longer hold any discussions without the bargaining agents in place, in attendance. So - and I notified them of that, that I couldn't continue those discussions outside of this process.

PN571

So you'd accept that position put forward that there hasn't been a notice of employee representational rights sent out for masters, mates and engineers? I'm sure you would, sir?‑‑‑No. No, there hasn't.

PN572

So at this point there will be no discussions for masters, mates and engineers?‑‑‑We got to the - we haven't made that determination because we're still determining the scope of these discussions. So I can't issue - I don't believe we can issue another notice until this discussion's resolved.

PN573

Just for the sake of - - -?‑‑‑This item.

PN574

- - - the GPHs and cashiers and hostess, would you say their negotiations have started?‑‑‑Yes I would.

PN575

Would you say that the union has put forward a log of claims?‑‑‑Yes, they have.

PN576

Would you say the union has been prepared to make themselves available to meet with you?‑‑‑Yes, they have.

PN577

Has the union tried to contact you for meetings in the last month?‑‑‑We made a meeting last Wednesday and we've agreed on a date - last Thursday, and agreed on a date and time.

PN578

Would you say the union has been more than insistent with correspondence to meet with Manly Fast Ferries?‑‑‑You've tabled the correspondence.

PN579

So I take it that's a yes?‑‑‑Yes.

PN580

Do you intend to conclude an EBA with the MUA?‑‑‑Yes we do.

*** RICHARD FORD XXN MR GARRETT

PN581

Do you intend to conclude an EBA for - or, sorry, I'll withdraw that question because you have answered that.

PN582

Just one moment, Commissioner. Thank you for your time, Mr Ford. No further, Commissioner.

PN583

THE COMMISSIONER: Nothing further? Thank you.

PN584

Any re‑examination Mr McCarthy?

RE-EXAMINATION BY MR MCCARTHY [4.00 PM]

PN585

MR McCARTHY: Mr Ford, just to assist me to try and clarify what your approach and thinking process in all of this was, would it be fair to say that the approach of the company was to bargain collectively in relation to the general purpose hands and the host and hostesses principally via the MUA, and that to bargain separately with the masters and not directly with them? Would that be your view of it?‑‑‑Yes, it was.

PN586

Could you tell me if there's anything inaccurate about what I've just asked you about?‑‑‑No. No, that's consistent with the notice that we issued to the staff, for the general purpose hands and the host and hostess with part of the negotiations with the MUA and that I intended to have negotiations also with the masters, engineers of both levels.

PN587

And does that explain why you issued a notice of representational rights collectively to the general purpose hands and the host and hostesses but you have not done so in relation to the masters?‑‑‑That's correct.

PN588

I have no further questions.

PN589

THE COMMISSIONER: Nothing further? Thank you.

PN590

You're released and discharged. Thank you for giving your evidence?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.01 PM]

PN591

THE COMMISSIONER: Is there any further evidence from the respondent?

PN592

MR McCARTHY: Only if I could briefly just re-touch on the two primary points that I have mentioned earlier, just very briefly just to recap? And that is that it is the respondent's view that - - -

PN593

THE COMMISSIONER: Sorry, is there any further evidence?

PN594

MR McCARTHY: I apologise. I apologise, Commissioner. I'm hearing but not - I'm listening - hearing but not listening. I do apologise. No.

PN595

THE COMMISSIONER: No? That's the evidence, all right. So now it's just a matter for submissions, Mr Garrett.

PN596

MR McCARTHY: I do apologise.

PN597

MR GARRETT: Thank you, Commissioner. Section 443, and I'll just go through that again because I may have made a little error there. (1):

PN598

FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

PN599

(a) an application has been made under section 437; and

PN600

(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

PN601

Of course I added good faith bargaining, but I think that's a very important one from the union's perspective. With respect to section 443(1)(a) we would press that the application form 34 that has been filed is in order. It certainly addresses the questions that need to be asked and has the draft order attached as per the Fair Work Commission requirements. With respect to the Fair Work Commission being satisfied that each applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted, we would say that there has been a number of issues raised today, some of which aren't relevant.

PN602

There has been the old magician's trick of misdirection with respect to coverage, but by the evidence of the company they have put forward that the masters, mates and engineers do not have an enterprise agreement and it appears have never had an enterprise agreement to cover their employment. It has been put forward there has been an enterprise agreement for Manly Fast Ferries for the GPHs, host and hostesses and that has had a nominal expiry date of 31 March 2012. And for that point there that satisfies the tests required to be considered by the Commissioner under section 438.

PN603

We would say with respect to the misdirection that was put up in regards to eligibility, the MUA has led evidence that we are entitled to cover the positions that have been put, that there is no agreement with any company that covers Manly Fast Ferry skippers, and that any other agreement is for another operation of a business which is separate to Manly Fast Ferries. We also put up that the company has had the opportunity to lead evidence with respect to coverage and has not put up any submissions or evidence, I should say, whatsoever to that point. So the point raised by Manly Fast Ferry through their bargaining agent is moot.

PN604

We do have the eligibility to cover the classifications as per the application. We have satisfied the objectives of the protected action ballot order and of course we have an enterprise agreement which has expired in 2012. The union has filed a log of claims. It has attended meetings and it has made itself available to meet in future meetings to have those discussions to resolve enterprise agreement negotiations. There seems to be a gross level of confusion amongst Manly Fast Ferries management and particularly the director, Mr Ford, by way of his own evidence, where there's a massive confusion about the difference in discussions versus negotiations. When pressed on the stand, Mr Ford couldn't adequately respond to the difference between those two points.

PN605

On the stand Mr Ford has identified a host of informal discussions that appear to have taken place since December 2014, which include wages, which include rosters, which include permanency, and these are all matters that were subject to the 2009 agreement of Manly Fast Ferries. They are matters relating to the - pertaining to the employment relationship and that should be taken into account, those informal discussions. The company has lodged an NERR which it's required to, to satisfy the tests of the Act. But that being said, that doesn’t preclude the negotiations afterward. It only demands it, and those negotiations have been had and will continue to be had.

PN606

The union calling for a protected action ballot is by no means taking the industrial action but merely asking the question of the workers whether they suit to take that action to advance the claims which are in their log of claims, some 28 as has been made reference to, and I understand with some humour. Again the MUA is the only participant at the table that has filed a log of claims. The AMOU this morning has put in a document asserting coverage of the masters and mates at Manly Fast Ferries but hasn't filed a log of claims. Manly Fast Ferry, the employer, hasn't filed a log of claims. The only matter that was there on the agenda that was put forward, not as a draft agenda for circulation but as the position of the company, was point 2:

PN607

Coverage and scope of agreement - onboard GPH and host employees during ferry service runs.

PN608

Now that's the position put forward by the company, and they're entitled to put that forward as it is negotiations. By virtue of putting that forward it was put forward for discussion, if not negotiations, and was responded to in the meeting at the time and in correspondence thereafter where it's raised in the log of claims the position of the union. The company knows the union is available for discussions and remains available, and genuinely is seeking to get an agreement on the ferry run and a fair outcome for ferry workers. But by virtue of all the legal intrinsities that go on beforehand - I haven't done that word any justice - at the end of the day the question is whether workers are entitled to take industrial action, or at least ask the question of the workers whether they want to take industrial action.

PN609

If there is some complexities in regards to whether there's a right of coverage then Manly Fast Ferry have a right to seek relief through the Act, be it the Fair Work Commission or through the Federal Court, and there's enough precedent on that to deal with that. But that's not a matter for determination today. The matter for determination today, Commissioner, is whether section 443(1) or the entire section has been made, and whether the draft order that has been put forward is acceptable, Commissioner. Now I note there have been no submissions from the company with respect to the merit of the order.

PN610

I take the silence as an overwhelming support for it. But failing that, I'm sure that there have been no submissions made by virtue of the fact that they oppose the granting of the order in the first case. That being said, we believe we've passed the tests. We certainly had a meeting scheduled on Monday and the MUA remains committed to continue these negotiations. All this is, is the workers executing a right to ask the question whether they seek to take industrial action and they could vote it down too. But they have a right to ask that question and as was being put in evidence, this enterprise agreement expired on 31 March 2012.

PN611

It is hard to believe anyone would lead evidence that the industrial strategy of an organisation running a government contract for transport would be left open and to risk and "Maana, we'll deal with it down the track". It is as important to have the workforce in place as it is to have the boats in place because without the assets there's no workers to work onboard, without the workers the assets sit alongside the wharf. All that's being asked is for that position. We believe the evidence is in order. The evidence that has been put to misdirect about a demarcation dispute can be subject to a whole host of other proceedings in the Commission if need be but it's not for hearing today. We press that the application is in order and the Commission is able under the provisions of the Fair Work Act to make the order, and the MUA will leave it there. If it pleases the Commission.

PN612

THE COMMISSIONER: Thank you.

PN613

Mr McCarthy?

PN614

MR McCARTHY: Commissioner, as mentioned earlier by myself our submission, our first submission in a summary way could be put as that we believe that the MUA's application for a protected action ballot at this time is premature. We say that for this reason, that in our view the actual bargaining in relation to any issue for consideration for possible inclusion in the enterprise agreement was not even before the parties at the time of the first negotiation meeting which was for the purposes of outlining the way forward when the parties met last Thursday. It is clear from what has been put in front of the Commission today, and confirmed by the union, that that is correct.

PN615

That, for example, its own log of claims was not forwarded to the company until some four hours after the conclusion of those first discussions. What the union as I understand would have the Commission do is, in my view, conceptually reverse around the overall approach that I believe that the Act itself is trying to take in relation to enterprise bargaining and protected industrial action. My take on what is happening here is that the MUA is wanting to put in place by way of a protected action ballot order the right of employees to take protected industrial action to press their log of claims prior to the commencement of the discussions about the log of claims itself.

PN616

In other words what it wants to do, it wants to approach enterprise bargaining from its perspective by way of an arrangement in which the employer party should have the threat of, the Sword of Damocles hanging over its head of industrial action in accordance with an already issued order for a ballot to take protected industrial action at every step from the beginning of the discussions about the issues of the log of claims between the parties. I believe that that is an extraordinary approach to take in enterprise bargaining. In other words we load the gun, we hold it to the employer's head and then we say, "And by the way now let me tell you what it is we want to negotiate with you about", because that's what is going on here.

PN617

And it's for that reason that we strongly press the proposition that the union's application is simply premature. Our second proposition is that the protected action ballot itself does not properly specify the group of employees to be balloted and that is because of its attempt to describe as the relevant - to have included in the relevant class the masters and engineers on the vessel. That inclusion is not consistent with the notice of bargaining rights that was issued. It's not consistent with the scope and coverage of the currently operating industrial instrument that covers the operations at Manly Fast Ferries, because that instrument is restricted to applying to general purpose hands, deckhands, which is one and the same, different phraseology, Commissioner. General purpose hands / deckhands, host and hostesses and in those days when it was relevant, ticket sellers.

PN618

What is being sought here is an extension of that coverage. The employees to whom the MUA seek to extend the discussions and the negotiations (1) were never in the purview of belief about discussions from the perspective of the company, who initiated the negotiations by way of the issuing of the bargaining notices to the employees (2) have never issued bargaining notices in relation to the extension class of employees the MUA is seeking to represent and (3) are classes of employees about whom there is a significant question mark about the constitutional capacity of the MUA to enrol and represent, as identified if by no other process than the correspondence I understand that the Commission itself has received from the AMOU.

PN619

I'd also observe that, you know, we have not heard from the AIMPE. But it's no surprise that you haven't and it's no surprise you would have received late correspondence from the AMOU given the fact that no notice for bargaining representational rights was ever issued to that class of employees in the first instance; given the fact that the discussions that the company was having with its masters, in its view, were separate from the discussions it was anticipating collectively in relation to the classes of employees currently covered by the operating legal instrument entered into with the MUA whom it anticipated to further discuss with the MUA as to a replacement for that instrument.

PN620

I think the issue of constitutional coverage of the MUA - and I'm not here saying that I am putting forward evidence about that because clearly that would require a detailed consideration of not just the constitutional coverage provisions or the eligibility rule of the MUA, but at the same time I would suggest would require consideration of the eligibility rules of the AMOU. It would also I would have thought require the consideration of the eligibility rule of the AIMPE and would also require submissions in relation to the scope and coverage of those unions, arising not only from their eligibility rules and the other provisions of their constitutions, but also some evidence about then the industrial history, practice et cetera of coverage between and amongst and separately in relation to these unions for this class of worker we're talking about.

PN621

The MUA itself conceded during the deliberations between the parties last Thursday that the company is right in describing the masters on its vessels as the management's representatives on the boat in charge of the boat. That's a very different class of employee as to those covered by the current industrial instrument, which the company thought and anticipated it would be talking to the MUA about replacing that instrument with a new instrument. No wonder the company believed it was okay for it to be directly dealing with its masters, when it perceives, and the MUA seems to accept, that they are in fact the management, the company's representatives onboard the vessel.

PN622

They're absolutely responsible for the management, control, decision making in relation to all matters including safety onboard those vessels, and they are not activities, roles, responsibilities that falls within the scope and tasks of the classes of employees covered by the otherwise currently operating industrial instrument, or the proposed new agreement, at least from the perspective of the company. Commissioner, the last thing we simply want to say is this, and it's a different point, and that is this.

PN623

If the Commission were to determine that it should grant the union's application then at some point the company would like to be able to make submissions as to the period of notice that would be required for any protected industrial action to be taken. Under the Act there's a prima facie period of some three days' notice before action could be taken. At an appropriate point the company would like to be making submissions about extending that period at least to a period of seven days, given that the Manly Fast Ferries activities on Sydney Harbour is a significant part of Sydney's public transport system, carrying passengers and in particular commuter passengers on Sydney Harbour on a day to day basis.

PN624

As much available notice ought to be given to the company, and as a consequence to the general travelling public of Sydney, if and when circumstances were to arise that the union was to exercise its members' rights if such a ballot order was given and it was successfully supported by a vote in due course. But that's a matter I believe for another day, but it's a matter that I just wanted to mention and raise as part of these proceedings. I have no further submissions, Commissioner.

PN625

THE COMMISSIONER: Thank you.

PN626

Any submissions in reply, Mr Garrett?

PN627

MR GARRETT: Just with respect to the nature of the order, Commissioner. I think the easy point to be made there is that there is no exclusivity on the Manly run. There are two operators that run to Manly. Harbour City Ferries run the other one. There are three vessels that operate with 1100 passenger capacity that run in the morning. The sky wouldn't fall in and certainly with respect to that, Manly Fast Ferries - sorry, I withdraw that - Harbour City Ferries were subject to a protected action ballot last year, operating on the Manly run as well as every other ferry run in Sydney, on a three day provision and the wheels - - -

PN628

THE COMMISSIONER: I think I did that one, didn't I?

PN629

MR GARRETT: Well, I'll refer to that as precedent then. Thank you for that.

PN630

THE COMMISSIONER: I've just had a lot to do with Harbour City Ferries during the course of last year from what I can remember.

PN631

MR GARRETT: From recollection you thoroughly enjoyed it. But the Commissioner, when he ordered the order for the protected action ballot, did so with a three day position.

PN632

THE COMMISSIONER: If it wasn't altered for them why should it be altered for their competitor so to speak; is that what you're saying?

PN633

MR GARRETT: Yes, if it's good for the goose we'll run on that precedent no doubt. But be that as it may with respect to the considerations there, should Harbour City Ferries have had any stoppages there would have been a competitor, being Manly Fast Ferries. And if that doesn't work, the L90 bus does a good trip into the city and I understand the passengers have to do that when the swell is up over the head. So there is a redundancy capacity with respect to moving people back and forth.

PN634

THE COMMISSIONER: You won't get the L90. You'll need the E50 I think, or something like that.

PN635

MR GARRETT: I'm a child of Leichhardt and moved south west so I'm not familiar with the bus routes, but no doubt I'm happy to be guided.

PN636

THE COMMISSIONER: L90 is Mona Vale.

PN637

MR GARRETT: On TripView, Commissioner, there are a number of buses that run from Manly to Sydney, and no doubt if the passengers over in the northern beaches check www.131500.com.au no doubt they'll be able to make their destination known, and it's certainly well advertised by the - - -

PN638

THE COMMISSIONER: Your point is taken, Mr Garrett.

PN639

MR GARRETT: Thank you. I'm glad it's taken because I couldn't filibuster anything further on that point. With respect to the application again all we say is that it's in order, and with respect to the points that have been made by my friend I can certainly understand the point that has come but at the end of the day the masters, mates and engineers are agreement-free. They are covered by the Ports Harbours and Enclosed Waters Award. They are entitled to bargain for their employment conditions and they have done so before and after the intervention of the MUA, and that has been led in evidence by Mr Ford. So we have nothing further but press that the application be granted.

PN640

THE COMMISSIONER: Yes, thank you. I propose to issue an ex tempore determination in the matter and I will do that immediately. Once the transcript has been made available I'll then issue a written confirmation of the ex tempore determination that I'm just about to make.

PN641

This application for a protected action ballot order has been made pursuant to section 437 of the Fair Work Act. The determination of the application is primarily governed by section 443 of the Act. Evidence in support of the application was provided in the form of a witness statement of Mr Colin Drane, which has become exhibit 2 in the proceedings. Mr Drane was called as a witness and cross‑examined by the representative of the respondent employer, Mr McCarthy.

PN642

The application was opposed by the respondent employer. The respondent employer called Mr Richard Ford as a witness, who provided oral evidence. Unfortunately Mr Ford had not provided any form of witness statement. However the evidence provided by Mr Ford, and to a lesser extent that provided by way of exhibit 2, has identified the two primary grounds for the employer's opposition to the application. The employer's opposition to the application was advanced firstly on the basis that the state of negotiations between the parties had only recently commenced and therefore the application was said to be premature.

PN643

Further, the application was opposed on the basis that it was asserted that the MUA was not entitled to represent the industrial interests of certain employees included in the group to be balloted, specifically employees referred to as masters and engineers. Having considered the evidence and submissions made by the parties I am not satisfied that at this point in time the applicant is genuinely trying to reach an agreement with the respondent employer. The bargaining for a proposed agreement has not been sufficiently advanced and the application is premature.

PN644

Issues such as representational rights and the scope of any proposed agreement have not been properly identified and discussed between the parties and potentially with other parties, because at this time the enterprise bargaining process has only just commenced. It is relevant and important to note that the application for a protected action ballot order was made on the same day and only shortly after the applicant had served a log of claims on the respondent employer. Consequently subsection 443(1)(b) of the Act has not been satisfied and the application must therefore be dismissed, and the proceedings are now concluded.

ADJOURNED INDEFINITELY [4.26 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 COPY OF LETTER PURPORTING TO APPOINT MR S. MCCARTHY AS A BARGAINING REPRESENTATIVE FOR MANLY FAST FERRY PTY LTD, DATED 18/05/2015................................................................................................................................. PN106

COLLIN WILLIAM DRANE, SWORN............................................................ PN130

EXAMINATION-IN-CHIEF BY MR. GARRETT.......................................... PN130

EXHIBIT #2 WITNESS STATEMENT OF COLLIN WILLIAM DRANE DATED 15/05/2015................................................................................................................................. PN138

CROSS-EXAMINATION BY MR. MCCARTHY........................................... PN156

RE-EXAMINATION BY MR. GARRETT....................................................... PN238

THE WITNESS WITHDREW............................................................................ PN272

RICHARD FORD, SWORN................................................................................ PN279

EXAMINATION-IN-CHIEF BY MR MCCARTHY....................................... PN279

CROSS-EXAMINATION BY MR GARRETT................................................ PN292

THE WITNESS WITHDREW............................................................................ PN379

RICHARD FORD, RECALLED ON FORMER OATH.................................. PN379

CROSS-EXAMINATION BY MR GARRETT................................................ PN379

RE-EXAMINATION BY MR MCCARTHY.................................................... PN584

THE WITNESS WITHDREW............................................................................ PN590

Fair Work Commission Transcripts

B2015/535, Transcript of Proceedings [2015] FWCTrans 331 (11 June 2015)