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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051887
DEPUTY PRESIDENT ABEY
B2014/1735
s.238 - Application for a scope order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch
and
Tasmanian Water and Sewerage Corporation (Southern Region) Pty Ltd T/A Southern Water; Ian Nelson Consulting; Australian Municipal, Administrative, Clerical and Services Union - Victorian and Tasmanian Authorities and Services Branch; Association of Professional Engineers, Scientists and Managers, Australia, The; Construction, Forestry, Mining and Energy Union-Tasmania Branch; CPSU, the Community and Public Sector Union-SPSF Group, Tasmanian Branch; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Printing Division Tasmanian Region; Mr Michael Swanton; The Australian Workers' Union - Tasmania Branch
(B2014/1735)
Hobart
10.01 AM, MONDAY, 18 MAY 2015
Continued from 15/05/15
PN1695
THE DEPUTY PRESIDENT: Yes, good morning. Mr Dilger?
PN1696
MR DILGER: Yes, good morning, your Honour. I just thought before we go on the record I would just talk about some procedural matters. I've had a discussion with Mr Ash this morning. We anticipate that we will deal with Mr Crowley first and then if available this afternoon we'll deal with Mr Burles, and then leave Ms Garrott and Mr Nelson until tomorrow, and that they should be released until tomorrow.
PN1697
THE DEPUTY PRESIDENT: Yes.
PN1698
MR DILGER: That will give us the opportunity to start afresh tomorrow and hopefully some oral submissions in the afternoon. If there's nothing further that you have a problem with, your Honour?
PN1699
THE DEPUTY PRESIDENT: No, that's fine. Thank you Mr Dilger.
PN1700
Mr Ash, do you concur with that?
PN1701
MR ASH: I concur with that, your Honour.
PN1702
THE DEPUTY PRESIDENT: Yes. Yes, Mr Ash?
PN1703
MR ASH: I call Luke Crowley, your Honour.
PN1704
THE ASSOCIATE: Now state your full name and address?
MR CROWLEY: Luke Michael Crowley (address supplied).
<LUKE MICHAEL CROWLEY, AFFIRMED [10.02 AM]
EXAMINATION-IN-CHIEF BY MR ASH [10.02 AM]
PN1706
THE DEPUTY PRESIDENT: Thank you, Mr Ash.
*** LUKE MICHAEL CROWLEY XN MR ASH
PN1707
MR ASH: Yes, Mr Crowley, did you prepare two statements in connection with these proceedings, one dated 24 March 2015 and a reply statement of 2 April 2015?‑‑‑I did.
PN1708
And do you have them with you?‑‑‑I do.
PN1709
And have you read them recently?‑‑‑Yes.
PN1710
Is there any corrections or amendments that you'd like to make?‑‑‑Yes, there is. I make the claim in the 21.G.
PN1711
THE DEPUTY PRESIDENT: This is the most - - -?‑‑‑In my initial statement, Deputy President. That the company proposed to cap redundancy payments at 60 weeks. That's incorrect. The latest offer of the company was to cap the redundancy payments at 72 weeks. To my knowledge there's no other errors.
PN1712
MR ASH: Okay, and with that amendment to that statement dated 24 March 2015 do both statements remain accurate to the best of your knowledge and belief?‑‑‑They do.
PN1713
I tender both those statements, your Honour.
THE DEPUTY PRESIDENT: Yes, I'll mark the initial statement exhibit LMC with attachments.
EXHIBIT #LMC WITNESS STATEMENT OF LUKE MICHAEL CROWLEY DATED 24/03/2015 WITH ATTACHMENTS
THE DEPUTY PRESIDENT: And the reply statement will be LMCR, both statements of Mr Luke Crowley.
EXHIBIT #LMCR REPLY STATEMENT OF LUKE MICHAEL CROWLEY DATED 02/04/2015
PN1716
THE DEPUTY PRESIDENT: Yes?
PN1717
MR ASH: I just wanted to - I haven't had a discussion with Mr Crowley about this morning. There is a survey that's foreshadowed in his reply statement.
*** LUKE MICHAEL CROWLEY XN MR ASH
PN1718
THE DEPUTY PRESIDENT: Yes.
PN1719
MR ASH: I don't know whether or not Mr Crowley brought the results of that survey but I wanted to - do you have those survey results with you, Mr Crowley?‑‑‑I do.
PN1720
Can you please explain to the Commission how you caused that survey to be conducted?‑‑‑We put an online survey through a site called SurveyMonkey, Commissioner. It was a fairly simple affair with a question which was did people - "Do you support the enterprise agreement" - "Do you support enterprise bargaining agreements with the scope as the existing agreements instead of one statewide enterprise agreement?" That survey now - this I'm a bit fuzzy on. That survey was about a month ago, we put it out, or maybe three weeks, slightly less than a month. It was purely opt-in and it was - the invitations to participate were sent out via email. The responses you have before you. There was an additional second question that was, "Do you have any comments?" Those haven't been included because for the most part they identify people and the aim of the survey was to demonstrate employee feeling rather than identify individuals.
PN1721
THE DEPUTY PRESIDENT: Yes?‑‑‑If you're particularly keen on the written responses I'd just - obviously we didn't mention that those would be revealed to the company.
PN1722
No, I mean if they're not going to be revealed to the company then they're not going to be revealed to me.
PN1723
MR ASH: I seek to tender those survey results, your Honour.
THE DEPUTY PRESIDENT: I'll call it LMC1. Exhibit LMC1, survey results.
EXHIBIT #LMC1 ONLINE SURVEY RESULTS
THE DEPUTY PRESIDENT: Yes, Mr Dilger?
CROSS-EXAMINATION BY MR DILGER [10.07 AM]
PN1726
MR DILGER: Thank you, your Honour.
PN1727
Mr Crowley you're the most senior official in your organisation in Tasmania?‑‑‑Yes, I am.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1728
And you negotiate agreements on your behalf of members and are familiar with the requirements of the Fair Work Act?‑‑‑I am.
PN1729
How many enterprise agreements do you anticipate or estimate that you've negotiated under the Fair Work Act? An estimate will be fine?‑‑‑20?
PN1730
And you've received training in the application and meaning of the Fair Work Act?‑‑‑I have.
PN1731
Have you delivered training regarding the application and meaning of the Fair Work Act to your delegates or other members?‑‑‑We do have a couple of sessions before each negotiation, lunch time sessions. So an hour where we talk about the various requirements of good faith bargaining and the like.
PN1732
So the answer is yes?‑‑‑Yes.
PN1733
You've a good understanding of the application of good faith bargaining requirements?‑‑‑I would just - I believe so, yes.
PN1734
And you've actually been a participant in proceedings regarding good faith bargaining in these negotiations?‑‑‑Yes.
PN1735
Your union has actually previously made good faith bargaining applications in your own right?‑‑‑Yes, I believe we have.
PN1736
And you have a good understanding of the approval requirements under the Fair Work Act?‑‑‑I believe so, yes.
PN1737
You have a good understanding of bargaining dispute procedures under section 240?‑‑‑Yes.
PN1738
And in fact you made an application on 3 October relating to TasWater for a good - - -?‑‑‑We did.
PN1739
You're aware of the requirements for taking protected industrial action?‑‑‑I am.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1740
And you've been involved in numerous industrial campaigns where you have organised and assisted your members take industrial action?‑‑‑Probably with APESMA I wouldn't say numerous but there's more than five, less than 10.
PN1741
You see protected industrial action as a legitimate means to achieving - to persuade the employer to accede to demands during bargaining?‑‑‑Yes.
PN1742
Is your organisation an affiliate of Unions Tasmania?‑‑‑Yes, but I believe we're still latent with ourselves. Just for the formal answer there.
PN1743
Well, if someone from Unions Tasmania comes and tracks Mr Crowley down we know where he is?‑‑‑All run out of federal office thankfully.
PN1744
As part of your role as an organiser you'd be responsible for addressing matters such as work health and safety?‑‑‑Look, I am but that's a fairly small part of my role with APESMA.
PN1745
Okay, but you're aware of the obligations to have a safe workplace?‑‑‑I am, yes.
PN1746
And you consider the bargaining arena to be a workplace?‑‑‑Yes.
PN1747
Your organisation has taken a particular stance against bullying in workplaces?‑‑‑Yes.
PN1748
And you would agree that verbally intimidating and threatening a person could be a form of bullying?‑‑‑Yes.
PN1749
Bullying can cause a range of health issues?‑‑‑Yes.
PN1750
And you wouldn't condone any form of verbally intimidating or threatening a person?‑‑‑No.
PN1751
Would shouting or using expletives be reasonable or appropriate workplace behaviour?‑‑‑Look, I've seen it done. You'd always hope to avoid it wherever you could.
PN1752
Is it appropriate or not?‑‑‑Look, I - no, I guess no.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1753
Would making personal attacks on other workplace participants be reasonable or appropriate workplace behaviour?‑‑‑You would try and avoid it.
PN1754
If there was a misunderstanding as to particular issues in the workplace should participants seek to further clarify that misunderstanding before publishing or distributing contents that relate to that misunderstanding?‑‑‑If there was a general misunderstanding.
PN1755
In paragraph 5 of your statement you agree that you bargained as a single bargaining unit?‑‑‑Yes.
PN1756
The SBU?‑‑‑Yes, we have in our deals with the company. Yes.
PN1757
And you appointed Kevin Harkins to coordinate the negotiations on behalf of the SBU?‑‑‑That was true early on, yes.
PN1758
And you agreed to have the SBU speak on behalf of all matters relating to this bargaining?‑‑‑That's Kevin or SBU?
PN1759
The SBU?‑‑‑Yes, although I do have to be fair, Mr Swanton was a bargaining representative that wasn't involved in those.
PN1760
Yes, so just to clarify again. We haven't gone on record. When I talk about the SBU - - -?‑‑‑Unions.
PN1761
- - - we're deliberately excluding all of the other employee bargaining reps and we're just talking to the member unions?‑‑‑No problem. In that case, yes.
PN1762
One of the aspects of being part of the SBU is that it purportedly seeks to achieve efficiency for the union members to accumulate their resources and respond to proposals with a united front?‑‑‑Yes, agreed.
PN1763
Where members of the SBU did not have unified positions that was likely to cause confusion for TasWater and the other bargaining representatives?‑‑‑The process was that we attempted to resolve all of those in-house where possible and present a single position to the organisation.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1764
Okay, so you've said that, but if there were different positions put out by the SBU that would be likely to cause confusion?‑‑‑If there had been?
PN1765
Yes?‑‑‑Yes, it would have been.
PN1766
You agreed as APESMA or Professionals Australia to have the SBU publish and distribute documents on your behalf?‑‑‑Yes.
PN1767
And you were free at any time to revoke the authority of Mr Harkins or the SBU?‑‑‑We were, yes.
PN1768
You never at any time revoked the authority of Mr Harkins as spokesperson or the SBU?‑‑‑Mr Harkins did eventually leave but no, we didn't revoke the authority while he was facilitating.
PN1769
You're responsible for coordinating Professionals Australia's attendance at bargaining meetings?‑‑‑I am.
PN1770
And you can choose whether you attend at a bargaining meeting or not?‑‑‑Yes with the exception that there were some bargaining meetings planned at the same time as each other, which being the sole person for APESMA in Tasmania meant that sometimes I couldn't choose. Or I had to choose one or the other but couldn't choose to be at both obviously.
PN1771
Okay, and you've identified that you attended approximately 20 bargaining meetings through this campaign?‑‑‑Yes, I probably missed one or three.
PN1772
Approximately 20?‑‑‑Yes.
PN1773
You were an organiser at the time of the original creation of the original three Water Corporation - - -?‑‑‑I was.
PN1774
And you participated in bargaining during that campaign?‑‑‑I did.
PN1775
And the creation of the three original agreements took approximately 50 meetings to achieve and it consolidated approximately 25 industrial instruments over the period of approximately 18 months? And in your - - -
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1776
THE DEPUTY PRESIDENT: Now are you agreeing that, Mr Crowley?‑‑‑I was a participant in the Southern Water Agreement and I was a participant to some limited amount in the Ben Lomond Agreement. I was not a participant in the Cradle Mountain Water Agreement so I can't attest to how long that one took. I would have to take that one on - - -
PN1777
MR DILGER: You've seen the papers put out by TasWater where they provided some statistics on the meetings. There were actually 47, so I said approximately 50?‑‑‑Yes look, I don't dispute that that's the correct number.
PN1778
You continued to be an organiser at the time of the creation of TasWater?‑‑‑I did.
PN1779
Did you ever assess the legislative intent behind the creation of TasWater in the aggregation of Ben Lomond Water, Southern Water, Cradle Mountain Water and Onstream?‑‑‑No, I assessed it in terms of how it would affect employees and the continuation of entitlements for employees. But the higher intent around that, no I did not.
PN1780
So you have no understanding of the principle objectives of TasWater under that legislation?‑‑‑Not through the legislation. However we've been relayed those by the company along the way.
PN1781
So you'd understand that one of the principal objectives was to deliver water and sewerage services to customers in the most cost-efficient manner?‑‑‑I do.
PN1782
And to achieve consistency in service delivery, customer, relations across the state and to integrate administrative systems which would create opportunities for cost savings and reduce reporting and administrative effort?‑‑‑Not in that much detail but, yes, I understand the general point.
PN1783
Is that an accurate summary?‑‑‑Yes.
PN1784
Yes, okay. The current enterprise agreements include differences in relation to work practices and costs associated with the working arrangements?‑‑‑Yes.
PN1785
And they're not just related to handling sewer matter, adverse working conditions, on-call or job security, are they?‑‑‑No, they're not.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1786
So the differences are actually much broader. They actually relate to dispute resolution, abandonment of employment, annual leave, annual leave loading, annual performance planning, blood donor's leave, classification structures, community service leave, compassionate leave, the employment categories, the coverage for the senior professionals and specialists, which is of particular importance to yourself, First Aid allowances, future negotiations, leave without pay, living away from home allowances, meal allowances, overtime, parental leave, probation periods, professionals development, purchase leave, redundancy, shift work, study leave, summary termination, supported wage system, suspension, TOIL, transitions to the new agreement, travel reimbursement and last but not least wage increases?‑‑‑I would understand that's - there's a lot of differences. I couldn't attest that that's the exact list but I'd agree that there's a number of differences.
PN1787
Sound accurate?‑‑‑It does sound accurate, yes.
PN1788
Your priority items delivered on behalf of - and Mr Crowley just as a way of administration I'm going to put to you some items. If you can agree to them without referring to the document, let me know. If you can't, I'll show you the document. But I'm just going to suggest to you without showing you the document until you need it. You've had all the documents before you for some time and I'll be referring to it in that nature. So you recall on 1 December 2014 - - -?‑‑‑Yes.
PN1789
You sent out an email listing what was approximately 22 items under the general agreement?‑‑‑I do.
PN1790
And then some other items that related to the senior agreement, and those 22 items actually set out that your priority items were duration, renegotiation clause, no extra claims, summary termination, redundancy and redeployment, overtime, shift work, accrual of TOIL, annual performance planning and progression, remuneration, superannuation, higher duties allowance, vehicle allowance, adverse working conditions allowance, handling sewer matter allowance, on-call allowance, annual leave, return to work after maternity leave, DSP, classification structure, delegates' rights and a possible scope in relation to the senior agreement?‑‑‑I think that list was probably all of the items that were relevant to the members.
PN1791
Yes?‑‑‑It didn't delineate sort of priority items from the other less important items. But you are correct, that list was set out.
PN1792
And then on 2 December Mr Gauld wrote back to TasWater on behalf of the SBU and identified what he called then, "They're the die in the ditch items". Do you agree with that?‑‑‑Yes.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1793
And these items were all addressed in what was called the joint union draft agreement and it was a document that you had discussed on 4 December in a meeting with TasWater and the other bargaining representatives?‑‑‑Yes.
PN1794
Do you recall that?‑‑‑Yes, I do.
PN1795
And you actually updated and amended it and provided Alex Garrott a copy and other members - other bargaining representatives and provided a copy of that on 8 December 2014?‑‑‑Just to jog my memory, that was the document that was based on the company's document that went to a vote with the necessary amendments that we sought?
PN1796
No, I'll provide that to you. If you look at item TW71. I have it here and I'm happy here just for the purposes just to show Mr Crowley?‑‑‑Yes, that's - that - what that was is what I just described. In an attempt to demonstrate exactly to the company what needed improving for - based on our comments from members, we took the document that they put to the vote - actually that's not entirely true. We took the document that they almost took to the vote. There was a couple of amendments around public holidays. But it was essentially the document they put to the vote and then we had altered the clauses to deliver an outcome that we believed would be voted up.
PN1797
So that was capable of acceptance on 8 December?‑‑‑It was.
PN1798
For your meeting on 11 December. That very document was again presented by Mr Ash on 5 February 2015. Do you recall that?‑‑‑I do.
PN1799
And in that meeting there was yourself, Mr Flanagan, Mr Lambert, Mr Washington, or at least those members who have testified today - testified in these proceedings. Is that correct?‑‑‑Yes.
PN1800
Yes, and on that actual meeting on 5 February when Mr Ash presented that, can I just put to you that the scope in that document is a single statewide scope and has no three regional scope attached to it?‑‑‑That's correct.
PN1801
Thank you. TasWater's functions are undertaken on a statewide basis under the banner of TasWater?‑‑‑They are.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1802
And management structures operate on a statewide basis without geographical distinction?‑‑‑I understand there's geographical offices. I don't know if there's geographical distinctions.
PN1803
Under the Water Industry Modern Award persons conducting the same duties theoretically would be classified at the same level given their skill and knowledge requirements if they were to be classified under those classification structures?‑‑‑That's correct.
PN1804
And apart from familiarity with a particular workplace there is actually no difference between the skill and knowledge requirements to conduct the operational duties between the different geographical regions?‑‑‑I - look, I don't believe so. If it is the same duties then I'd agree. I don't know if they perform the same duties in the same areas.
PN1805
Your organisation has coverage across the state?‑‑‑We do.
PN1806
Yes. Work health and safety programs such as Zero Harm is undertaken on a statewide basis?‑‑‑Yes, I understand so.
PN1807
Training and development is undertaken on a statewide basis?‑‑‑Yes, except for the people at Forth do love to complain about never getting it.
PN1808
There are a number of committees that operate on a statewide basis?‑‑‑I have to confess I don't know.
PN1809
Okay, and former Onstream employees have always operated on a statewide basis?‑‑‑They have. You understand also it's our current - we are currently in a dispute with the company about - - -
PN1810
Yes, not of this application?‑‑‑I understand.
PN1811
In your role of organiser you've objected to distinctions between employees working alongside by side with each other receiving different terms and conditions?‑‑‑We have.
PN1812
And you previously opposed matters such as differing redundancy standards, differing classification structures, and differences for accrual of personal leave?‑‑‑We have.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1813
I just want to check with you first some terminology. My understanding and we've used throughout these proceedings that a rollover agreement is effectively the same terms and conditions but you get a wage increase. Are you comfortable with that terminology?‑‑‑That's absolutely fine.
PN1814
Yes, so if you achieved a rollover agreement as a result of this application you would end up with employees under one organisation conducting the same or substantially the same roles receiving different terms and conditions?‑‑‑We would with the obvious detail that now that those agreements are a year overdue, a rollover for a year would actually put us straight back negotiating.
PN1815
Okay, you're putting a timeframe on it. I'm not putting any timeframe on it?‑‑‑I understand that. I'm just saying that that is true but if that was a genuine concern of the company's then they've done that for the last year because we haven't been able to reach an agreement.
PN1816
TasWater has undergone significant change since 1 July 2013 when they became the single corporation, and it would have been impractical for all of the transitional arrangements to have occurred from the three organisations all at once?‑‑‑I - look, this is a concern of the company's, I guess. We would have advised a different - probably a different method of doing it. But - - -
PN1817
Okay, but could it have been achieved all on the day that they rolled over from three operations - - -?‑‑‑You would have - - -
PN1818
- - - to one?‑‑‑Well, if you did your planning beforehand rather than afterwards, I would agree - I would say that it could do. So - and look, no, you're right. Not entirely. But a lot more could have been done pre rather than post.
PN1819
But since that time TasWater has commenced an ongoing program of standardisation and it's conducted in a systematic manner?‑‑‑Yes.
PN1820
The TasWater logo was actually launched in 2014 and since that time buildings, vehicles and uniforms have all been progressively updated to the new logo?‑‑‑I understand yes. I still see some old uniforms and logos around, but.
PN1821
That would be a legacy issue?‑‑‑I understand it's changing, yes.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1822
And are you aware that the strategic theme in the current TasWater corporate plan 2015 to 17 is One TasWater?‑‑‑No, but it doesn't surprise me.
PN1823
The rollover agreements you prefer were at the time only required to achieve a pay increase for Southern Water, Cradle Mountain Water and Ben Lomond Water to fix the discrepancies in Ben Lomond Water's classifications dealing with lab technicians and enhancing the personal carers leave from 13 to 15?‑‑‑Just are you talking about the ones that happened just a year ago?
PN1824
Yes, just recently?‑‑‑Got you, yes.
PN1825
And provide an aligned nominal expiry date. That's effectively what those three rollovers occurred?‑‑‑The three rollovers, the general feeling among the members were that we agreed to the rollovers with the aim of saving our efforts with the fight upcoming. So I have to admit that I didn't pay a huge amount of - I mean the point of a rollover for a lot of companies is not to involve the unions at all, and in two of them we weren't involved hugely. It was only Ben Lomond where we were involved and that was obviously because the rollover was voted down from what I understand.
PN1826
Yes, but you actually then achieved an increase in the personal carers leave and you dealt with some classifications as a tidy up?‑‑‑There was, yes.
PN1827
The issues now though if there were to be a rollover for your three regional agreement scope are substantially more significant as late as 1 December 2014, when you identified 22 priority items though, aren't they?‑‑‑The 23 priority items were a result of trying to bring the three agreements into one. Because they become priority items when the company is attempting to reduce those conditions to the minimum. So if you have a look at some of those, the classification structure, the proposal was around Cradle Mountain for instance, and a lot of them were based on the Cradle Mountain Water Agreement which the company, when they proposed their initial log of claims specifically said, "Our draft agreement is based on the Cradle Mountain Agreement". So that was - that's how a lot of those became priority items. Obviously there's two ways to - for members to get upset during a negotiation. One is we put a log of claims and that is rejected. But the other is the company's log of claims then provides additional things that are opposed, and that's how we go - and so some of those things would be because we weren't getting what we wanted, but some of those things would be concern at what the company was offering.
PN1828
You said - I just take you back to when you were negotiating the original three regional agreements. They had, from 25 previous industrial instruments that related to councils, they negotiated those into three and now all you've got to do is negotiate three into one. Mathematically it's a much easier proposition from moving from three into one than from 25 into three?‑‑‑That's - it would seem that way but here we are.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1829
In fact the Ben Lomond Water, if you were comparing the original three industrial instruments, the Ben Lomond Water stands out by itself as significantly different from the Cradle and Southern Water Agreements?‑‑‑Look, I agree in some areas and on reading word for word, absolutely yes. Ben Lomond has some rather elongated clauses that the others don't have. But as for the actual conditions I would say Ben Lomond and Southern are more similar and Cradle's the odd one out. But purely reading it without worrying about the intent, I'd say yes, I agree Ben Lomond's quite a lot different.
PN1830
Because the practical reality of the negotiations way back then in 2009 was once Southern Water's agreement had been negotiated, Cradle Mountain pretty much attempted to adopt similarities with the Southern Water Agreement so that agreement could be relatively reached, and only Ben Lomond stuck out by itself and maintained its original position?‑‑‑I heard post negotiations that that was the plan from the company, yes.
PN1831
You previously advised that you understand the good faith bargaining requirements of the Act?‑‑‑I do.
PN1832
And one of the obligations under the Act is to disclose relevant information, and do you agree that that's one of the good faith bargaining obligations?‑‑‑Yes.
PN1833
Were you aware that TasWater had a total 3 per cent per annum on-cost bargaining parameter that they'd established for their bargaining?‑‑‑We - I have read it in the statements. There was constant mentions of a bucket. As for the quantum being 3 per cent I don't recall that, but obviously I am aware of it through the statements.
PN1834
Do you agree that wages are one of if not the most significant aspect of enterprise bargaining because so many of the other terms and conditions rely on wages?‑‑‑I would with the exception of this negotiation where wages were the main focus, however the wage increase I must say was not the main focus. So just to delineate those two.
PN1835
Yes?‑‑‑Classification structure and where people were placed was quite important. The actual increase almost didn't get a mention at a lot of our members' meetings.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1836
During the ordinary course of bargaining if you didn't have a wages claim on the table would bargaining representatives be able to cost an enterprise agreement for their purposes of understanding what the claim was?‑‑‑I would hope they'd understand the organisation so that they could, and I don't understand it's - I have - we weren't asked for costings on our claims because obviously we can't provide those. But I'd understand the organisation should be able to.
PN1837
So you didn't provide any costings or indicate in terms of numbers of people how much a wages increase or a cost of an allowance would have incurred for the company?‑‑‑I don't - I would say that that would be not possible for us without some detailed costings from the company, which were not - well, weren't asked for and weren't provided. I'd just - because of the nature of the fact that there's seven unions I would doubt there's any one thing that was wholly involved inside of one union.
PN1838
So on - - -?‑‑‑Does that make sense?
PN1839
Yes. so on that reasoning you wouldn't know if your members were worse off or better off overall because you've never done any costings?‑‑‑We - no, our - if our members were worse off overall because they would advise us of that.
PN1840
Okay, what was their assessment based on if they - if no one was doing any costings it must have been based on gut feel?‑‑‑No, I think they probably did their own sums but what I'm - what we could not provide is what it would cost the company in total for each individual. But I reckon, especially my members, probably most definitely got out with pen and paper and worked out what each thing would cost them up or down. So individually it's - I was told that some things would cost people a lot and some things not. But as for providing costings for the company we would then have to know how many people in total that would affect and it could be a lot of detail. I've not been asked ever to provide costings in a negotiation, I must say.
PN1841
But in bargaining you would ordinarily - you have to take all of the matters into account. It's an overall cost not just a picking of certain clauses to work out winners and losers?‑‑‑I understand. Yes, I agree.
PN1842
In paragraph 11 of your statement you talk about you became aware of the notice of employee representational rights being issued on 26 February 2014?‑‑‑The second notice?
PN1843
The second notice?‑‑‑Yes.
PN1844
Yes, and the SBU were unable to meet with TasWater until 7 April 2014?‑‑‑That's correct.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1845
That's a long time to get ready when you had received the notice of employee representational rights in February and not ready until April?‑‑‑Well, it's a big complicated negotiation. I - look, I don't know. I can't - I genuinely can't remember why the process took that long. I don't know if there was dates proposed by us that the company couldn't do. It may have been both ways. But I have to confess I could not definitively say either way why it took that long.
PN1846
And you were all aware that this negotiation was coming because you all participated in those rollover agreements in 2013?‑‑‑We did.
PN1847
You state in paragraph 12 that you regularly held meetings with APESMA members to get ready for bargaining but that the SBU was not ready to progress. Is that correct?‑‑‑That would be correct.
PN1848
Why didn't you go it alone then if they were holding you back?‑‑‑At the time we had about 15 members so going it alone would have been of little interest to the company as well as ourselves.
PN1849
So it was in your self-interest to be a member of the SBU?‑‑‑Yes.
PN1850
Okay, and prior to the actual bargaining commencing you would have been fully aware of the intent way back in November 2013 of the intent to have a single statewide agreement?‑‑‑Yes, we were.
PN1851
On 9 April you attended - you had a logistics meeting and you discussed future meeting arrangements. You meet again on 7 May and you have a bargaining meeting and that's where TasWater present you the summary log of claims plus a full log in the form of a draft agreement?‑‑‑Yes, that's right.
PN1852
And in that it was also quite clear that TasWater continued to want to pursue a single statewide agreement?‑‑‑It was.
PN1853
And at the time of issuing the notice of employee representational rights there was no issue taken with in regard to scope?‑‑‑Yes, there was.
PN1854
There was?‑‑‑There was two issues, one specific to us, which was the exclusion of senior people from the negotiations.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1855
Yes?‑‑‑And the other one that was mentioned mostly at the time by the CFMEU was a concern that small regions might lose out on things, and I think Noel's proposal at the time was that we see how it goes but reserve the right to ensure that there's a - regions are not outvoted.
PN1856
You certainly continued, in fact your statements from paragraph 22 onwards talk about you being specifically involved. Now let me just summarise this. Your main concerns were trying to extend the existing scope to include senior employees into a single statewide agreement?‑‑‑It was.
PN1857
That's an accurate summary?‑‑‑Yes, it was. Yes.
PN1858
And you particularly agitated that throughout. In fact you made an application on 20 June?‑‑‑I did.
PN1859
Which just related to the senior employee issue, and on 3 October you further made good faith bargaining orders - no, sorry, section 240 bargaining dispute order application relating to how the senior employees were being dealt with?‑‑‑The NERR that was issued.
PN1860
Yes?‑‑‑That's correct.
PN1861
And during that time no other member of the SBU joined you in your applications?‑‑‑The CPSU and the ASU attended and spoke but - and asked if they should join the application but I said "No, just come along".
PN1862
But none of those applications related to a three agreement scope, did they?‑‑‑No, they didn't. It was our hope at that stage that, you know, it was going to happen.
PN1863
And in fact you as recently as last week made an application in other organisation on behalf of Professionals Australia relating to scope issues and perceived difficulties with the notice of employee representational rights?‑‑‑That - the application was more about the scope being unworkable. So it was actually not able to be passed by the Fair Work Commission.
PN1864
But the reality is you've demonstrated consistently throughout these proceedings and other proceedings that you know exactly how to address scope?‑‑‑Yes, quite so.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1865
And you're quite comfortable in making applications to the Commission to address it?‑‑‑Absolutely. Yes, that is correct.
PN1866
At that meeting on 7 May you rejected TasWater's behavioural set of guidelines that they proposed as part of the logistics of bargaining. But the reality is what had been proposed in those guidelines is nothing inconsistent to what you've already testified this morning, Mr Crowley, relating to expected behaviour in a workplace?‑‑‑I understand. Yes, that's true.
PN1867
Until 17 December there was never a mention in any documentation regarding three regional agreement scope?‑‑‑It's possible. I - it - a lot of it was verbal, done at meetings.
PN1868
So despite there being clear single statewide proposals, and we've talked about your meeting on the 4th where you amended the document on the 8th and Mr Ash represented on 5 February. There's no document out there which has a three regional agreement scope is there?‑‑‑No. No, it was part of the negotiations obviously.
PN1869
Okay, but as part of the negotiations you would have expected that had it been raised it would have been in some document. Is there any document in your materials presented to this Commission which talks about three regional agreement scope?‑‑‑I don't believe so but if - we didn't keep minutes of the meetings but it was definitely discussed in - throughout the meetings as we went, mostly by Noel from the CFMEU.
PN1870
But Mr Washington has previously attested he certainly didn't publish any materials and he actually conceded he hadn't read any of TasWater's materials?‑‑‑That sounds like Noel but I couldn't put words in his mouth.
PN1871
Well, I'm not going to tell him if you won't. The reason you prefer a consolidated single statewide agreement is that members of dispute - or sorry, issues that relate to a DSP can be properly agitated under an enterprise agreement?‑‑‑Look, if we - I guess there's words in my mouth there. It - I - having a DSP is obviously valuable but, I mean, it's a good point because currently arguably the DSP is being watered down for one of the regions under the TasWater proposal. So if we agreed to - if there was a DSP - I mean, I don't see the DSP linked to a single agreement.
PN1872
No, it's for everyone's benefit isn't it?‑‑‑Well what I'm saying is, your question was if - "You know, you prefer one agreement because". I prefer the best possible DSP.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1873
Yes?‑‑‑Currently that is arguably in the Ben Lomond Water Agreement, at least from the - - -
PN1874
The northern region?‑‑‑- - - employees' side. Yes, apologies, the northern region, and I would obviously prefer that to be the clause.
PN1875
Yes?‑‑‑If that clause was across all - across the three regions it would be quite good, but that's not what's being put by TasWater.
PN1876
And you'd also have a preference for including policy and other related matters into an enterprise agreement so that they can then be addressed by a DSP?‑‑‑That's correct, yes.
PN1877
So that would be a significant benefit if matters relating to policy and other unrelated - or, sorry, unrelated is not the right word. Other matters in an enterprise agreement makes them subject to a DSP is a benefit that unions consistently try and achieve?‑‑‑That's right. Either through the policy - either through as much detail as possible in the enterprise agreement or a DSP clause that says it relates to all matters.
PN1878
The SBU, you guys actually presented your what was called a draft, but incomplete log of claims on 7 May 2014?‑‑‑Yes.
PN1879
And you didn't have a wage claim in it?‑‑‑No.
PN1880
And you had some reserved matters and you agreed that you'd update them as you went along?‑‑‑Yes, the reserve - just to be clear, the reserve matters were matters we were proposing were too big in time to be dealt with in the sort of process of the negotiations that were coming up, and that we proposed to leave them to be dealt with in the life of the new agreement.
PN1881
Now a log of claims is particularly important in bargaining because it sets out the bargaining parameters. Do you agree?‑‑‑Yes.
PN1882
Okay, and so the earlier you understand what the full extent of the claims is the earlier the other side will have the opportunity to understand your position?‑‑‑Yes, I understand.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1883
So it follows that an incomplete log of claims is likely to cause inefficiencies because the other party can't actually fully understand or respond to an incomplete log?‑‑‑I agree.
PN1884
The SBU at that stage weren't organised enough to provide that consolidated log of claims were they?‑‑‑No, there was a number of areas where moving the three clauses into one as proposed by TasWater was incredibly difficult, and still is incredibly difficult.
PN1885
But previously you did it with 25 industrial instruments?‑‑‑Look, I - it was done. I have to say though that a lot of the people that moved across - just to give you an idea of where Professionals Australia, APESMA, sits in that, we had a lot of people that were moving across and there was not a big proposal to change. They weren't covered by on‑call allowance and so there wasn't as much noise from my members, and I had, to be brutal, really few members in each group and - - -
PN1886
So you've adopted a harder bargaining stance in these negotiations comparatively to what you adopted in the original one?‑‑‑Yes, we've adopted a stance more in line with the number of members we now have, which is to actually have a say, whereas before - I mean, look I'm sure you understand how negotiations work. If you're a union that represents a couple of per cent of the people then you go with the flow. You put your voice in behind the scenes with the SBU but you accept that you may not have a huge effect over the SBU's output. This negotiation we ended up with over a hundred members and so we needed to represent that, and so we were a far bigger part of the - - -
PN1887
That's a lot of terms and conditions you're protecting for your members?‑‑‑That's correct.
PN1888
And you don't want to see you going backwards in those terms and conditions?‑‑‑No.
PN1889
And in fact that would be damaging for your organisation if APESMA members were to lose out?‑‑‑Yes, sure.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1890
Well, it's a membership game isn't it? The more members you have the more successful or the more funds you have to pursue the aims of your organisation?‑‑‑The more members you have the more influence you have. I - we - I'm working here in Tasmania and the additional 86 members actually provided no more resources but what it did provide us was a far more legitimate seat at the negotiations and to put it in brutal terms, you've got more votes. So there's more people you're representing that vote on the agreement so the company is then in a position where if they are choosing to ignore a hundred votes then they have to make that conscious decision. That you understand it's a far easier decision to ignore 15 votes than it is to ignore a hundred?
PN1891
So you actually sought to maintain as a collective, the SBU sought to maintain the best clauses for each of the sections and have them included in a combined agreement. That's how you started out on 7 May?‑‑‑That was part of the claim. There was some additional elements to that that were over and above that.
PN1892
Okay, so that strategy became colloquially known in summary as the best of the best?‑‑‑Yes.
PN1893
But the best of the best can sometimes be a question of quantum, and sometimes it can be a question of terminology, and sometimes it can be a question of both?‑‑‑Yes.
PN1894
And during bargaining there's no obligation on any party to ensure that they increase the terms and conditions of the other party?‑‑‑No. I understand.
PN1895
And bargaining is a process of give and take. Some you might win, some you might lose but you can't win on everything, or you might be able to in very good circumstances. But generally bargaining is a process of give and take?‑‑‑Look, I understand. But this is an odd bargain where there was no single starting agreement. So weighing up your give and takes is a different proposition depending on where you start, and that's a really big element that we have had here is this is not a normal negotiation. We have not gone - usually you rock up, you get the agreement that you're on and then you talk about where you're going to move. There was no starting agreement in this case and there was no single position where to stand and judge where the things would affect you as an individual.
PN1896
But on 3 June you produced a 54 page document which identified what you thought were the best of the best clauses throughout. You had picked out, you had actually put in brackets where each one?‑‑‑Yes.
PN1897
For each of those clauses. So you had identified what you thought was the best of the best?‑‑‑Not me personally but as part of a group I identified the clauses that are relevant to my membership. But I didn't have a say in all of those obviously.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1898
And until 17 December that best of the best strategy was progressed all the way up and then on 17 December it became no loss of conditions?‑‑‑Just - there was - I mean just right from the start, Professionals Australia had additional things that weren t part of the best of the best, and part of the to-ing and fro-ing inside the SBU was exactly that. To again go back, we were not a big part of the original three agreements. There's parts of those original three agreements that are not perfect, to be honest, we'd like to change. And so some of the elements in the SBU log of claims throughout were not the best of the best. They were better than that.
PN1899
Yes?‑‑‑And they were predominantly from ourselves, the CPSU and ASU and related to senior employees, yes.
PN1900
So the strategy was best of the best but you were actually asking for a bit more than best of the best?‑‑‑Well this is again the joy of seven organisers, seven unions representing 700 people is that there was obviously some to‑ing and fro‑ing and tussling and arm bending inside behind closed doors before we went out. But if you have a look at a lot of those documents they are not strictly the best of the best.
PN1901
No?‑‑‑The genuine best of the best I believe was put to the company in early December and that was where we took a - and that was an offer made in an attempt to - - -
PN1902
On 8 December?‑‑‑The 8th of December, yes correct, and that was an offer made to the company in an attempt to basically deliver an outcome.
PN1903
Yes?‑‑‑And that was as I understand it the first time we actually just took a clause and to let you in on a secret, we did not like that going to the company. Professionals Australia did not support that. We did support it in that it - once it went out there, caucus and all of that, but we were a voice behind the scenes that did not want to see that happen because it dropped a lot of our claims.
PN1904
And the reality is on 8 December you reproduced it again when Mr Ash presented it on 5 February 2015?‑‑‑Just to be clear, the draft agreement is not the same as the best of the best offer that was put to the company on the 8th.
PN1905
No, it contained more?‑‑‑Yes.
PN1906
It was an offer capable of acceptance wasn't it?‑‑‑Yes. --Yes, that's right.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1907
Yes, okay, so we've got some clarity now around it was called best of the best but it was actually something a little bit more because of the terms in which you'd bargained. But interestingly that all changed on 17 December when effectively at that ill-fated meeting when all of this kicks off the position changes to no loss of conditions, and this is the first time that you go for a three regional agreement rollover scope?‑‑‑Look, there's - I guess there's two parts to that. The no loss of conditions was mentioned in our very first document that was presented in May. May? In fact I think it's the first point in our log of claims was no loss of conditions. So, look, I disagree with you there. I think no loss of conditions was mentioned throughout. How it was expressed in terms of best of the best or better than best of the best altered but it was always, I guess, there as a floor. That's f-l-o-o-r not f-l-a-w. So it was always there as a sort of base position. And now I've forgot the second part of the question around the document. The - yes, but yes I do agree that was probably the first time that it was formally put to the company around three separate agreements. I guess up to that point we had been hoping that there could be an outcome based on one agreement.
PN1908
Yes, because best of the best and no loss of conditions in summary are totally different aren't they?‑‑‑Yes. Yes they are.
PN1909
Best of the best is what was the best three across everyone and a little bit more, which you've identified, and no loss of conditions is a rollover three regional agreement scope?‑‑‑That is - that's correct.
PN1910
Just in terms of those extras you had sought, they related to the consultation clause, job security, DSP, flexible work arrangements, casual conversion, notice of termination, procedural requirements relating to termination, uncapped redundancy, abandonment of employment, enshrining of the NES reasonable overtime clause and junior rates being only go up till 19 rather than 20?‑‑‑Yes.
PN1911
Is that - yes?‑‑‑That's correct.
PN1912
In paragraph 15 of your statement you say words to the effect that the wider scope issue of whether you had one agreement or maintained three agreements was in issue for the SBU but - no actually, scrub that question. It was asked and answered, apologies. In paragraph 13 of your statement - no, and you've answered and asked or I've asked and answered that one too. In paragraph 26 of your reply statement you confirm that you were actually content to bargain for a combined agreement on the basis that TasWater might agree to your proposal that provided for best of the best plus a little bit more, what you've discussed earlier?‑‑‑26?
PN1913
Of your reply statement?‑‑‑Reply. Yes, that's correct.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1914
Yes, and you were quite clear that if those offers on the 4th, the 8th and 5th February 2015 would have been accepted a deal could have been done. If TasWater would have agreed to those proposed documents that would have been the agreement reached, subject to voting of course. But in principle the SBU and TasWater would have had an in‑principle position?‑‑‑So, look, there's the issue of the senior agreement but for that agreement, yes, it would have been.
PN1915
Yes. your main concern throughout this though has been the Mersa application, or one of them relating to senior employees is the continued use of Mersa, and that focused a lot of your discussions relating to scope throughout the bargaining?‑‑‑Yes, the Mersa affects both agreements in a way in that it's also - it takes people off the general agreement.
PN1916
Yes, okay. During bargaining on 22 May the SBU was again requested to provide by TasWater a consolidated log of claims document. Do you recall that?‑‑‑Yes.
PN1917
And in fact the SBU agreed that they'd populate that and return it on 23 May. Do you recall that?‑‑‑No, but it doesn't sound incorrect.
PN1918
This continued not providing the consolidated log of claims caused some delays in not all issues being able to be discussed at bargaining meetings?‑‑‑I mean, one of the issues that I have here is we actually did deliver a reasonably detailed 26 or 27 point log of claims. Every other negotiation I have ever been to, that is a log of claims. In fact we probably did a lot more detail there than we normally did, and then what tends to happen is through the negotiations you pad out what each of those claims mean. What TasWater was actually proposing was far more detailed than what is normally provided at a negotiation, to a level that I've never really done and I don't think anyone's done, which was almost to provide clauses around those.
PN1919
But it would have been incumbent and beneficial to you to have been suggesting clauses that you wanted versus clauses that TasWater wanted?‑‑‑Look, I understand but I guess on the other - what I'm trying to say is we're used to negotiating a certain way. That's sort of the way it's done and that way it's done is you present a log of claims that has detail but, "You know, our position on this is that all overtime should be double time on Saturday" for instance, right?
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1920
Yes?‑‑‑Now then you sit down and negotiate what that looks like in terms of a clause. What TasWater was requesting at that date was something that I've never seen done before, which was to really have the clause delivered. And then we go back to the same problem which is 700 people and seven unions trying to agree on the wording of a clause. We call all - I mean we might be - you know, the old joke we all agree we should have world peace, what does that look like? And that was the situation we faced. We all agree that on‑call should be good but what does that look like? So we were hoping to beat that out in negotiations. The company was seeking to have it in total up front and that's where I think it took us a lot longer than what was expected.
PN1921
It sounds like TasWater had very detailed clauses and yours were extremely general in application. Is that a fair summary?‑‑‑That's - yes. Correct, yes.
PN1922
So you may never have ever known what you were particularly arguing about if you just had some nebulous idea you wanted an increase?‑‑‑At the start of the negotiations we knew the areas we wanted to negotiate around.
PN1923
But you hadn't been able to particularise them down to actual specifics until way into bargaining?‑‑‑Look, that's true but again, normally what happens in a negotiation is those particulars are worked out as part of the negotiation, and what was being asked here - you're sort of - I mean, look, you've been part of negotiations. You understand. But you identify the areas which you want to talk about and you give a general position. But it's - this is the only negotiation I've ever been involved with where the company has said, "We cannot work out what you want unless you provide us every detail". Normally what happens is you do the costings as things come up. You say, "What does that look like?" "You've listed a log here that's this, what do you mean specifically?" It's beaten out over - at the negotiation table and then the company comes back the next day with costings or in some cases we may ask for evidence.
PN1924
But Commissioner Lee actually - it became an issue for bargaining so much so that Commissioner Lee, one of his recommendations was that you provide a track changed copy - - -?‑‑‑It was.
PN1925
Yes, and you didn't provide that in the time requested?‑‑‑We obeyed Commissioner Lee's recommendation to the letter which was that we provide that after the company provided the classification structure which never arrived.
PN1926
So it's previously Mr Lambert had conceded, and we presented a document that Ms Garrott wrote to the SBU on 21 July 2014, and I'll just get that document and let you have a look at it. TW46.
PN1927
THE ASSOCIATE: It's in here, if I may?‑‑‑Sorry.
PN1928
Yes, no one has told you yet?‑‑‑No, that's all right. This is beautiful.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1929
There you go. You'll find them all in there?‑‑‑Beautiful. Thank you.
PN1930
MR DILGER: I'll read out the third paragraph while you search for that, Mr Crowley. At paragraph 3 it says, "TasWater classification structure". Now this is an email from Alexandra Garrott on Monday 21 July at 3.54 pm. Your name is in there as having received that email and all the other members of the SBU, plus some employee bargaining representatives. And it says in the third dot point, "Attached is the classifications document"?‑‑‑I understand the classification document was - my understanding it was supposed to include far more detail around the levels to go above. It was relating to the scope issue that we had. We dropped our scope issue or we postponed it at that stage based on details around the classifications in the higher ranges, eight and nine, and they were never delivered.
PN1931
But for the lower classifications they definitely were delivered?‑‑‑They were.
PN1932
And you continued to agitate with TasWater regarding how the scope for those senior employees would be mapped out?‑‑‑Yes, because at this stage we were talking about a single agreement. Commissioner Lee's instructions were around providing an entire classification structure and the company obviously wasn't keen to do that because they didn't want the people on. So the instructions from Commissioner Lee were around providing the levels that were not in the classification structure and what we ended up getting was the same structure again, which was not - - -
PN1933
Did you write back to TasWater and say, "That's not enough. Where's the rest of it?"?‑‑‑I don't know. I genuinely don't know.
PN1934
The small negotiation groups, they weren t based on regional distinctions were they?‑‑‑Where the issue affected a region obviously they were heavily involved. But no, I take your point.
PN1935
But people in - - -?‑‑‑No, they weren t.
PN1936
They were just based on broad based content topics and you just fronted up on those wherever your organisation wanted you to go?‑‑‑That's correct.
PN1937
In fact you even had a small negotiating meeting for your senior scope type issues?‑‑‑We did. We had a number of them.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1938
On 23 May Mr Lambert on behalf of the SBU wrote to TasWater and basically said that the SBU were keen to ensure negotiations were kept productive and manageable, timely and efficient, noting that "wherever possible all unions would like to have everyone all in the one room together". Do you recall that?‑‑‑Yes.
PN1939
Okay, and being all in the one room together is important for fairness and efficiency?‑‑‑Yes, it's less efficient in a short term proposal. However you don't have to go and re‑look at decisions made by the smaller groups, everyone gets a say. So while there would be an argument that the progress is slower in a bigger group, the progress then once made is rarely ever undone. Whereas we found the small groups were constantly bringing back things that were objected to. So even though there was quicker progress in the small groups but in the wrong direction.
PN1940
It saves you - the single groups save you having to repeat yourself and go over the same issues?‑‑‑Yes.
PN1941
And everyone gets to hear the same message all at once?‑‑‑(No audible response).
PN1942
THE DEPUTY PRESIDENT: Do you agree with that Mr Crowley?‑‑‑Yes.
PN1943
MR DILGER: And you're an experienced negotiator and you're capable of discussing and negotiating claims on your union. Why was it that the delegates were required then to - multiple delegates were required to be there? Did you have multiple delegates?‑‑‑We did.
PN1944
How many delegates did you have, Mr Crowley?‑‑‑Two for the most part at any one meeting. So we had sort of three or four delegates but two in attendance, most of the time three - - -
PN1945
But if you're all in the one room?‑‑‑Yes.
PN1946
And you're all just speaking on the same issue, isn't that duplication of resources to have you plus two others?‑‑‑No, because the - each region needed feedback from someone in their area. So for instance we had a rep in the south who would speak to members in the south about what had gone on. One in the north. We did not have one from Forth but that's our smallest membership group. To be honest it would have been a bit excessive to have one from Forth as well. But essentially the regions were the reason for the delegates.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1947
But you could have also - I mean, you've been involved in negotiations and I've been across the table from you where much of the materials are actually received from delegates in between actual negotiations and they're not actually required to be there to get that information?‑‑‑No, but obviously especially with such a detailed and complicated negotiation it was important to have people there that understand how those things would affect them day to day, any change proposed. And also if the company says something like, "Oh, we don't have anyone in that group on call" you've got someone that says, "Oh, actually yes you do". And with such a big company and, with respect, only four or five people from the company, they often weren't aware of how some of those decisions would have affected individuals in those areas.
PN1948
But you got agendas in advance. That was the theory. You got to discuss the issues. Everyone knew what you were going to be talking about before you got there?‑‑‑Yes.
PN1949
You weren't meant to be making it up on the fly?‑‑‑No, but what I'm saying is the delegates that attend provide two things. One is a conduit back to members in the short term because you can't have a meeting each week after each - it just wouldn't work. And so they need to get the feedback, and the other thing is they are there also to provide a employee's eye view, if you like, of how various proposals would affect their group.
PN1950
Now let's go back to that letter on the 23rd. Mr Lambert basically says, "We want to work all together in the one room and can we have acceptance or a response to that proposal by 30 May 2014". So he establishes a deadline, and that's consistent with good faith bargaining requirements, to give deadlines in which to respond?‑‑‑Yes.
PN1951
Yet after having given that deadline, on 27 May Mr Lambert on behalf of the SBU wrote to TasWater noting that whilst he had given till 30 May 2015, that the SBU would be conducting bargaining on Thursday 5 June in Campbell Town and had not heard a response from TasWater?‑‑‑Yes, that's correct.
PN1952
Campbell Town was chosen because it allows - it's considered the most central place for all regions?‑‑‑Yes.
PN1953
And following Commissioner Lee's recommendations it sort of became the preferred go-to place for negotiations?‑‑‑Yes, just so I could prefer it. But yes, it was. Yes.
PN1954
And all the parties have actually had to commit significant resources to actually utilise Campbell Town already as a bargaining destination. Everybody has to travel. That's the perceived benefit?‑‑‑Yes. Yes, that's correct.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1955
And effectively if we have to go into rollover agreements - let me go back one. You understand that there are no provisions of the Act other than section 255 which requires - allows the Commission to require certain content in any agreement?‑‑‑I understand. Yes, I understand that.
PN1956
And the good faith bargaining requirements actually specifically say you're not required to concede to content in an enterprise agreement?‑‑‑Yes.
PN1957
So it follows doesn't it that if you've spent all this time and resources working your way through Campbell Town and you've got to having proposals on the table, that in effect all of that progress would be lost?‑‑‑I guess you're talking about sunk costs and if you're at a deadline - if you're at a deadlock that's never going to be improved then hammering away at that is actually further committing sunk costs. I mean, you could argue that there was some rust on the Titanic but you could also argue it probably wasn't worth getting the buffer out and fixing it because the whole thing was going down. I think we've got to be aware of sunk costs in this. Just because we've spent a lot of time on something, it would be my view that with the direction from management, as in not the people at the negotiations but the direction from people above them and the direction that we are receiving from our members, is that we will not reach one agreement..
PN1958
So you have deiced, without even proposing additional proposals, that you cannot reach agreement?‑‑‑The offer that we put to the company in December was genuinely an attempt to cut it to a point where we thought we would get over the line, right? And we were straight up with them at the time. We said, "This will get you over the line. Anything less than this and you'll have a lot of people voting no". Right? Now that was rejected and my view of what the company's offer is, is that they are prepared to move things around inside of it, and I don't think that's incorrect. I don't think that's ever been in dispute.
PN1959
Inside of the - is it more correct to say inside of - - -?‑‑‑Inside of the - - -
PN1960
- - - the 3 per cent?‑‑‑Yes. Yes, inside of the 3 per cent.
PN1961
Yes?‑‑‑And by moving to one agreement we're running into huge problems with that, that we - - -
PN1962
Well isn't - - -?‑‑‑That we wouldn't run into if there was - I mean, that position would be accepted. My understanding from members is that position will be accepted if the regional agreements were there and their conditions were left.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1963
But isn't the reality of if the bargaining parameters are 3 per cent total on-costs for TasWater?‑‑‑Yes.
PN1964
That they are under no compulsion whatsoever to change those bargaining parameters for a three regional agreement scope?‑‑‑It's exactly the same. That's absolutely correct, with the exception that they could be delivered under individual regional agreements.
PN1965
But you haven't done any costing - - -?‑‑‑Yes.
PN1966
- - - on those three regional agreements. You don't know - in fact you've received confirmation from TasWater that what you're proposing is already - the three regional scope agreement would be far in excess of the 3 per cent total on-cost?‑‑‑I don t understand how that could be. Rolling over agreements that they're currently paying, that are currently budgeted for.
PN1967
Yes?‑‑‑And putting a 2.8 per cent, which is the claim in the first year. It's actually less than 3 per cent. I don't see how leaving the agreement intact entirely and putting 2.8 per cent on could lead you with a number that is greater than three.
PN1968
Except if there had already been concessions in other aspects relating to those clauses that you'd bargained for?‑‑‑But we're talking about - we - I mean, the offer I guess - and I don't know if it's been put formally to the company. I know it's been put verbally - was to continue those agreements with no changes and a 2.8 per cent increase in the first year. Now that - I don't know how you could cut it in any way to suggest that was over 3 per cent; that was going to create a bill of more than 3 per cent. Now look, I agree the company is then free to rock up to negotiations with a shopping list. But what I'm saying is based on the position that I've read in Ian Nelson and Alex Garrott's statement we were - we could potentially have the agreements done in minutes with the - under the provisions they've been given by the leadership team because it would come in under 3 per cent.
PN1969
Except all of it is inconsistent with the enabling legislation which requires one organisation and no differing terms and conditions?‑‑‑And I agree with you, the sticking point here is the one organisation approach.
PN1970
THE DEPUTY PRESIDENT: Does the enabling legislation say that, Mr Dilger?
PN1971
MR DILGER: The water - well, the Water Corporation's Act - I'll go through that again, Commissioner, where it - what it says is:
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1972
The principal objectives of the corporation are to provide water and sewage functions to Tasmania, to encourage water conservation, the demand management of water and the reuse of water on an economic and commercial basis, to be a successful business, and to this end to operate its activities in accordance with good commercial practice, to deliver sustainable terms to its members, to deliver water and sewage services to the customers in the most cost-effective manner, consistency in service delivery and customer relations, further integration of administrative systems which would create opportunities for cost-savings and reduced reporting and administrative effort, and an ability to draw on a broader base of employee skills and experience.
PN1973
And we would say they're all underpinned by that very position. You're correct, your Honour, in that it doesn't specifically say that but in accordance with a strategic plan that's certainly where the organisation is going.
PN1974
THE DEPUTY PRESIDENT: I understand your submission. I was wondering if the legislation specifically referred to it and it appears no.
PN1975
MR DILGER: If we go back now to rollover agreement, a three regional agreement scope, that would necessitate that bargaining representatives would have to attend meetings in Hobart, Forth, Launceston?‑‑‑Yes.
PN1976
And effectively all of the TasWater's bargaining team are all currently based in the south?‑‑‑That would be TasWater - I understand - - -
PN1977
But that's where they are based?‑‑‑TasWater has the ability to put local people into those agreements if they wish to. They could choose not to.
PN1978
But effectively - so you're saying that you wouldn't have to travel to Launceston?‑‑‑I was about to make a joke and say we could use video link, but I might - yes, we would. We would, but the advantage there is that negotiations - I mean I don't know if anyone would disagree that the - as much involvement with the staff as possible is always best, and having them in-house locally I think also adds a lot more interest to the process and actually allows the negotiations to move along a lot better.
PN1979
But in effect the organisations rarely change. The same players are existing at all the bargaining meetings. The only difference is in the north you've got the CFMEU and in the north west you've got the absence of the AMWU, the CFMEU and the AWU. So all the other players are all exactly the same?‑‑‑Look, I wouldn't say exactly the same. The CPSU is far bigger in Forth.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1980
Bigger but still got members in the south?‑‑‑Yes, I understand but obviously it's - it would change - it may change the dynamic - well, would. It may change the dynamics somewhat because all of a sudden you've got a player that would be far bigger proportionately than they are. But I understand your point, yes.
PN1981
But you certainly couldn't concurrently address terms and conditions like you can do now?‑‑‑Well, I'd argue that we're not concurrently addressing anything and we're not moving. The opportunity is there but it's not happening.
PN1982
And all of the regional instruments and your document on 3 June, and that's that 54 page document, that all deals with specific regional interests doesn't it?‑‑‑Yes, there was some - it was - that was an attempt to - so that was the first - just correct me if I'm wrong, but that was our first attempt to provide a really detailed clause by clause log of claims.
PN1983
Yes, yes?‑‑‑So the attempt there was to provide - to sort of - just to give you some background, we looked through - we looked at what the best clause was in some cases, and this is where it differs. The best of the best isn't quite correct because sometimes it's a Frankenstein of two clauses. Sometimes there's a bit bolted on from a totally different clause. But that document essentially was an attempt to bring the three regions together in a way that would be acceptable to staff.
PN1984
On the 5th - - -
PN1985
THE DEPUTY PRESIDENT: Mr Dilger, at a convenient moment we'll have a mid-morning break.
PN1986
MR DILGER: Okay, well let's do that now, your Honour. I was going to get through to 11.30 but now is as good as any, and for no reason than just it said 11.30. But let's do it now.
PN1987
THE DEPUTY PRESIDENT: Yes, we'll adjourn until 11.35.
SHORT ADJOURNMENT [11.23 AM]
RESUMED [11.39 AM]
PN1988
THE DEPUTY PRESIDENT: Yes, Mr Dilger.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1989
MR DILGER: On 5 June there was another bargaining meeting. This time it was in Launceston where video conferencing was trialled?‑‑‑Yes.
PN1990
Members of the SBU considered that video conferencing was ineffective and inefficient technology that can t be used for bargaining meeting attendances?‑‑‑We felt that it would be considerably less efficient to use video conferencing, or I felt it would be.
PN1991
It then follows that if you are not based in a region where they re actually going to have bargaining, if you re from another region, you d have to travel so that you could be there face to face?‑‑‑That would be the desired position, yes.
PN1992
On 5 June they also - consideration of grandfathering was considered?‑‑‑By ourselves of the company?
PN1993
By everyone. The SBU put grandfathering on and it was in relation to the adverse working conditions allowance and the position ultimately comes out that the buy it out rather than grandfather?‑‑‑I have to confess that adverse working condition allowance only affects a very small number of my members, so I didn t poke my nose into that hugely. Obviously the members that are concerned by it are greatly concerned by it, but that was one I knew was in the capable hands of the other unions.
PN1994
Numbers of meetings occur from that time on. On June 12 you talk about junior employees, apprentices, abandonment, employment categories, part time, casual conversion, temporary and probationary employment, reimbursements, notice of termination, items deliverable to the employer, summary termination, redundancy, traineeships, licensing, DSP, union delegates, flexibility arrangements, contractors and labour hire, local area work arrangements, fitness for work, definitions, where the agreements to be exhibited, salary sacrifice, no extra claims, relationship to the award, excluded allowances, the NES and the Fair Work information statement. Do you agree that s a fair summary?‑‑‑Yes.
PN1995
They re all topics which you d describe as being standard enterprise agreement clauses?‑‑‑Yes.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN1996
There are a number of the SBU, Mr Flanagan and Mr Washington in particular, said they re dealing with 75 per cent of issues that they have no interest in. That long list of that bargaining meeting on 12 June, the majority of those clauses apply to all the employees. It s a significant amount of time to be in a bargaining meeting with no interest. Do you agree with that?‑‑‑Look I would say, I mean, I don t know what Mr Flanagan and Mr Washington specifically meant, I wasn t here. I would know that, if you asked me which of those were burning issues for us, then it would be in that area of 75 per cent are not burning issues, but I d also say that I ve probably got a couple of a smattering of members that would be affected by all of those, so there s a bit of an oddity there because the issues that you re really keen on to negotiate are probably only ever 25 per cent, especially in a big group like this. I would personally say I d have an interest in all of them, to some degree.
PN1997
It s a total package, you d agree? You ve got to consider all of those applying across a total package?‑‑‑I think that s the employer s job to consider the total package. I think it s our job to bring the elements that we want to see changed or included.
PN1998
Ultimately, the SBU can pick and choose where they re interest lays?‑‑‑Yes.
PN1999
They could choose if Mr Washington or Mr Flanagan or any other member of the SBU found it boring or not related to them, they could have left those meetings very easily?‑‑‑Yes.
PN2000
No one would have required them to be there? They would have just been absent?‑‑‑Look, that s correct. Again, you d have to ask them.
PN2001
At paragraph 67, you state in your - - -
PN2002
THE DEPUTY PRESIDENT: In reply, Mr Dilger, or - - -
PN2003
MR DILGER: Sorry, your first statement, you state that Your members have consistently communicated to you that they were worried about TasWater creating a single state-wide scope agreement that was attempting to bring all staff onto the lowest possible conditions ?‑‑‑Yes, that s been an ongoing concern.
PN2004
The reality was that you had talked about discussions already occurring where you were negotiating for best of the best plus more?‑‑‑The position that we had put was obviously approved by members, but there was especially the draft agreement being produced by TasWater in early May. That one based on the Cradle Mountain water probably sparked these off. It became a much greater concern, once the draft document was put by TasWater that referenced Cradle Mountain as the basis. I m just trying to cast my mind back, if it was a concern before that, or if it was a major concern before that. It probably wasn t a major concern before that, but when TasWater put its proposal on the table, I guess it became much more of a concern after that date.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2005
On 24 June Mr Harkins, on behalf of the SBU, wrote to all bargaining representatives stating I think the reductions in sessions has more to do with Alex s need or insistence to attend everything, which displays little trust in her colleagues, but that s their problem. There was a high level of personal acrimony between Mr Harkins and members of the TasWater bargaining team?‑‑‑I read it in the emails. If you know Mr Harkins, that s not a high level acrimony for him. I m being gentle, that s his fairly standard approach to those things. It s not the approach that I would take, but it s his approach. I think, look, that comment was definitely echoed to us by the company itself, who, in a meeting, did say initially that they wanted to have all of their negotiators attend all the small groups meetings to which the union voiced the concerns that that would in essence, split us, but not them. The whole point of the small groups proposal, and I actually don t know who proposed the small groups, but the hope and dream of the small groups was to progress multiple issues at once, and therefore, if the company was insisting on attending all of them with all of their reps, that it was pointless.
PN2006
In fact, I think it was you, and there s an email to that effect around 26 June 2014, where you say Look, let s not have meetings consecutively, let s have all of the meetings concurrently ?‑‑‑It was probably around that. If the company was insisting on doing that, that it would be useless doing that.
PN2007
If you had regional agreement scopes, you couldn t run those concurrently?‑‑‑Not at the same time, no, but look, it s part of the juggling act of unions to do that. Again, going back to the position that we would take, and I take this on faith from the other unions, but I ve got no reason not to believe it, the position that I understand that we would take collectively to any negotiation for three regionals, is one solely around keeping the existing conditions and an increase at least in the first year of 2.8 as agreed. My view was that unless the company has huge things to bring that are not listed in the statements that Mr Nelson and Ms Garrott have made, then they could be done quite quickly. I guess what I m trying to say is what I see as slowing this hugely, is a conglomeration of three agreements in one and I think that while I ve seen it done in a more measured approach, the fact that you ve got an agreement that s now a year overdue, is really putting a spanner in the works of coming to an agreement.
PN2008
You ve been involved in negotiations where nominal expiry dates have gone over that?‑‑‑Absolutely.
PN2009
You were involved in Aurora, you were involved in hydro. They all existed well beyond nominal expiry dates?‑‑‑They did, but again, you re coming from - this is an agreement - it s a whole new ball game, because those agreements started with an agreement and there was discussions around which clauses do we change. This is an agreement that starts with no single agreement basis. It is quite a different beast.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2010
In that meeting on 24 June, there was a request that they needed to stick concurrently to the meetings, but if that wasn t achieved, the threat was made by the SBU that TasWater could expect a significant increase in the numbers of delegates attending the meetings. That s correct?‑‑‑Well, what we then have to obviously do is increase the number of delegates to cover the meetings.
PN2011
That s in fact what you did on 3 July when the meeting - I ll refresh your memory first. It s a meeting where - it s at TasWater but they were expecting about 20 people but there was 25 union officials and delegates in the room, so that when the TasWater bargaining team came to actually attend the meeting, there was no room for them to sit. Do you recall that meeting?‑‑‑There has been more than one meeting that would fit that criteria.
PN2012
Well that one has stuck out for Ms Garrott and Mr Nelson in that it was a particular concern that at that meeting, they went in and following on from the threat on 24 June that there would be more numbers attending, you actually stacked it with a large number of people to make your point?‑‑‑Look, I don t believe we did so. I don t believe we stacked it. My understanding prior to that meeting was that it was a lot of stuff in dispute and when you get a lot of stuff in dispute, and you want to discuss a lot of stuff, then a lot of reps put their hand up and say, look I want to come to this meeting because something s going to be discussed today that references me.
PN2013
You re just suggesting it was just a coincidence?‑‑‑No, what I m saying is, if there s an insinuation that there was a deliberate ploy to put as many people in the room as possible, I was not involved in it and I don t believe there was. What I do believe happened is there was a lot to discuss. It was getting to a point that was of heightened tensions and so what you have throughout the process, you have reps and I assume, other unions have the same issue, but I have reps that balance work and attendance. So, when it s a dull day or there s not something that s going to be relevant to them, they ll say, look, we ve got a rep there, or you do it. When it s going to be of particular interest, and there s a lot on, then you ll find that reps will say, I will come, because there s something on today that specifically interests me. But as for the, I guess, insinuation that there may have been a deliberate stacking as a show of strength, that was not the case.
PN2014
At that meeting, the meeting was abandoned by TasWater after Mr Harkins had refused to stick to the agenda. Do you recall that occurring?‑‑‑I do.
PN2015
Do you also recall that Ms Garrott advised the parties she was going to make a good faith bargaining application?‑‑‑I do.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2016
On 26 June, the SBU were asked to provide their classification structure but they were actually unable to do so, so as at 26 June, you didn t have a position and in fact Mr Swanton who is in the back of the court, advised he had a position and you ultimately adopted his position?‑‑‑That is correct. We did advise that our preferred position, at least as a basis starting point for negotiations, was the Water Industry Award.
PN2017
You hadn t actually formalised it. That s three or four months into bargaining and you still hadn t worked out what your classification structure was going to be?‑‑‑Well again, we had not got to that part of the negotiations. That s how slow things were moving, that we hadn t moved to that point. I d agree, that would be the first time we had a consolidated position. We had opinions on it.
PN2018
It was an agenda item?‑‑‑It was a particularly difficult item. We had a position on it. Other unions had a position on it also, but that was our first opportunity to - and Michael raised that proposal, Mr Swanton, and that was adopted by the group.
PN2019
The unions sought to caucus after that meeting, after Ms Garrott said she would be off with the TasWater personnel, the SBU asked if they could stay for a further 10 minutes to caucus. Ultimately you stayed there for approximately 45 minutes and Ms Clarke came and asked you to leave the room. You d expired your 10 minutes that you d sought to maintain?‑‑‑That sounds correct. Can t remember it in detail.
PN2020
There was no storming out of the room by TasWater personnel?‑‑‑Depends what you define as storming.
PN2021
You explain what you think storming is and what they did?‑‑‑My understanding is we had listed concerns with the agenda prior to that meeting and it wasn t a situation where there was an agreed agenda and we walked in and then we tried to change it. It was obvious before the fact that we had particular and specific problems with the agenda around the items that were being discussed being of not the key items. I guess that s the way to discuss it. Obviously you ll be aware, one tactic in a negotiation is to address very small items at the start and pad the time out and then get to the big items later. We d listed that as a concern and that we sought to negotiate or at least raise and pad out some of the big items as you ve discussed, classification. I mean, it was four months till we got to classification and arguably people are going to want to know where they sit in a new classification before they vote on the document.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2022
You d been, prior to all of that, you d been off to Fair Work. You d had a scope order matter already proceeded to. You were very competent in achieving matters before the Commission to address it. If classifications was such an issue, you made the choice not to progress it any further?‑‑‑When you start a negotiation you obviously, or we, I won t say everyone, we try and work with the employer. So, I always try not to start out immediately opposing everything and kick up a massive fuss and sometimes, it takes a couple of months to suddenly realise that negotiations are really avoiding the big issues. I think in this case, added to the difficulties we had, specifically around classification structure, there was a couple of unions to which classification structure was a huge issue, ourselves, CPSU and to a degree ASU, whereas a lot of the other unions were far more concerned about overtime and how the on-call allowance worked. You re right and look, you can also take some suggestion from the fact that we lodged a scope order, but classification as a huge issue that we were constantly trying to raise, but working within an SBU and being at the absolute most one seventh of the staff there, it s difficult to drive the agenda solely your own way and that was probably the reason for the delay.
PN2023
You ve previously discussed being aware of section 240 bargaining dispute applications and you ve run one in this course of negotiations. The SBU hasn t chosen to deal with this type of application in this matter, has it?‑‑‑A bargaining application?
PN2024
Yes?‑‑‑I believe there s been a number of advisers, emails advising the company that if things continued in that path that we would be seeking assistance from the Commission to deal with a dispute, which obviously is a first step in the 240 and to my knowledge, they ve all been dealt with. I wouldn t say to our satisfaction, but you don t get everything all the time. So it has been raised. Section 240 has been raised by both sides a lot, but as an SBU or even as an individual union, we haven t sought to actually lodge one beyond the scope that we did.
PN2025
The section 240s deal with terms and conditions of employment. You effectively just agitate those, set out some warning bells and then the parties get together and discuss them. If you re happy with the result, you continue on?‑‑‑I guess the 240s that were discussed, were not about terms and conditions, they were about the mechanics of the negotiations, that I remember. They were about things like the number of delegates, where we meet, how often we meet. It was the early - you ve got to realise that in this negotiation, I think we spent two months discussing mechanics, not exclusively, but there was a huge amount of time at the start of negotiations spent discussing how we would negotiate, far more than any other negotiation that I ve been a part of. I don t recall the section 240 about terms and conditions, I think they were all about mechanics.
PN2026
Then you say that you had no other option but to seek a scope order, but you haven t progressed to bargaining section 240 application yet, have you?‑‑‑Around a scope order?
PN2027
Yes?‑‑‑We did lodge - so this is about the senior group.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2028
Yes?‑‑‑Not about the scope order for three. We did lodge a section 240.
PN2029
On 3 October 2014?‑‑‑Yes, we then had further discussions in front of Commissioner Lee and further discussions with the company and eventually a decision was made to attempt to progress a senior agreement and that s currently ongoing.
PN2030
That s the way things normally work. You may make the application, you consider it or the parties then get on through the ordinary course of bargaining to discuss ways around it. That didn t occur on 17 December, did it?‑‑‑Look, it didn t, but there had been very clear messages throughout the negotiations of what TasWater s position was. It s not odd in a negotiation, but the other degree of difficulty here was we were not sitting in front of the people who actually made the decisions here. For a short period we actually managed to get those people to come to the negotiations and it was somewhat more productive, but we d been told flat, that was absolutely non-negotiable throughout the negotiations for TasWater, whenever Noel raised it. We were told flat, prior to lodging this, that it was an absolute non-negotiable and I also understand, because I was involved in some of them, that some advances were made to the company post the order being made in an attempt to meet and discuss and that those also fell flat.
PN2031
Mr Crowley, during your scope order application, which is TW67 made on 20 June and the section 240 made on 3 October, you provided a lot of material and in that material, in summary you talked about what had happened, where you d put an issue, the employer had responded, you weren t happy with it, you again went back to them and said I m still not happy and then finally, if it s not an incorrect summary, you said I ve become exasperated, I can t deal with it, you re not dealing with it, we re off?‑‑‑Yes.
PN2032
On 19 December 2014, TasWater wrote a detailed letter which is TW41 which basically said, here s why this doesn t relate to scope and here s why the application shouldn t proceed. Between 19 December and 31 December when the CFPU made the application, there was no further correspondence with TasWater whatsoever.
PN2033
THE DEPUTY PRESIDENT: There s a question?
PN2034
MR DILGER: There was no, question mark, yes?‑‑‑Look, I think there s a big difference here between - - -
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2035
Just hang on - I just want to note the question is, did anyone contact TasWater between the 19th, when they issued their notice, their response, and 31 December when the application was made?‑‑‑I actually don t know.
PN2036
Did you?‑‑‑Again, I don t know, I was on holidays, 19 December, no.
PN2037
Mr Flanagan says he didn t even read TasWater s response. Did you read TasWater s response?‑‑‑TasWater s response.
PN2038
Having read that, and having seven months of negotiations and given your previous course of conduct has actually been to go back to the parties and try and work it out?‑‑‑Yes.
PN2039
I put it to you that you ultimately just made the decision, come hell or high water, you were going ahead with that scope or replication?‑‑‑Just to take you back to the scope order around the senior agreement. The history to that was that we listed scope as a matter for negotiation with the seniors and that that was accepted that it was possible, right. We also initially got a position from the company around scope that actually did involve the senior staff in this EBA, part of them. There was an agreement to involve some of our group. Then we had a number of negotiation meetings where there appeared to be genuine movement in the company s position. As we were meeting and as we were discussing, the company s position appeared to be evolving and that was what gave us some heart to continue discussions. The negotiations around scope in terms of single agreement versus three agreements, it would be my view that the company has only ever had one view and that is no, and that there s never been any deviation from that view. If you want to know why there was one approach with the senior and quite a different approach to this, that would be the reason, because in the senior agreement, we had genuine negotiations around it. There was movement, we were considering, the company was considering. In this, right from May, when Noel first put that position, it s been very clear that those who positions are totally at odds and there is no middle ground.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2040
I take you back to 15 December 2014. TasWater provided you with a comprehensive offer, that was in relation to your 4 December, 8 December, you had the meeting on 11 December and then you had the proposal put to you on 15 December. That was a recut of their offer, which after the 11th when you said it wasn t good enough, they actually put back to you and said okay, wasn t good enough, what about our new offer on 15 December. You actually haven t provided a response to 15 December?‑‑‑I would disagree with that. The main three changes between the mid December and 15 December offer were a decrease in the fixed increase from 2.8 to 2.5 and provision of back pay and a change to the on-call outs, an improvement. There was only three major changes to their offer and we dealt with those in the meeting and did discuss those. From memory, I think Todd responded on our behalf of the SBU, to the elements that had changed between 11th and 15th. So I know this has been a constant position of TasWater that there was not response to that offer on the 15th, but I don t know what more we - I mean we could have put it in writing, but it was clear. The offer was to our eyes, almost no change and it was a reshuffle of the offer that was already there, that would actually, to my mind, of course because I don t have many people on call, that would actually provide a lesser acceptance of the agreement to my members and that was most definitely put to TasWater at the meeting.
PN2041
Ultimately it was just simply a rejection and you gave them no indication of how it could have been further recut to admit your objectives?‑‑‑That s true.
PN2042
That is true?‑‑‑Because we had provided TasWater a position that was actually the minimum. Look, I know that in negotiations, you play silly buggars with this is the least that will get over the line and you add to it, and you embellish it and you throw bits in. I don t think that will be a secret to anyone in the room. What was presented early December was genuinely about the least that the unions could get together and support and that we believe that the members would vote up. This was really explained in detail to TasWater. In fact, I think the words that we used when we gave it to them is don t come back trying to knock edges off this because it is in our view, the least that members will agree to.
PN2043
You offered them a take it or leave it position?‑‑‑Yes.
PN2044
You said that you ultimately, it was only dealt with a few issues, but if you go to TW63, it s in your papers, this is the offer that Ms Garrott sent on Monday 15 December.
PN2045
THE DEPUTY PRESIDENT: Almost there.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2046
MR DILGER: It s actually a little bit more than just a couple of things, it s overtime, it s the rate of the increase, it s the effective date of the increase, it s future increases, it s high duties, it s adverse working conditions and it s annual leave. At least they ve had a crack at providing something different to you again?‑‑‑Look, I understand that, but again what appears to have been consistently misunderstood, either deliberately or accidently by TasWater was that the document we put to them in early December, was not a union list of dreams and it was not a desired position. I mean, it had some edges on it that I did not like at all. I m sure it had edges on it that a lot of unions didn t like, but we were aware that after eight months of negotiations that we had to put something that was brutally realistic and we had to put something that was going to move an 88 per cent no vote to a 51 per cent yes vote. I mean, we always hope for more than that, but let s be realistic. When you are dealing with an 88 per cent no vote, it s not slight changes to that offer that are going to deliver a yes. If we had agreed to this, or told TasWater that reshuffling was going to do it, then we would have actually been wasting time because we would have just got a no vote.
PN2047
Let me make it absolutely clear. You didn t provide them with any further advice or guidance as to how they could have amended their offer. You just said it s unacceptable?‑‑‑We pointed them back to the document that we provided them on the - - -
PN2048
Back to your take it or leave it offer that you made?‑‑‑Look, you re right. That offer was presented as take it or leave it, but to put it another way, and I keep coming back to this, the offer was also presented as a genuine lowest possible, that was the least the company was going to have to do to get an agreement over the line. True, it s take it or leave it, but those words describing it are sort of setting up this highly aggressive stick it up your jumper type approach, which was not the intent of that document on 11 December, or early December. The intent of what we provided to TasWater was to clearly show them, using their own document and with track changes so there was no disagreements or no misunderstanding, of exactly where we thought they needed to move their offer at a minimum to come up. And again, I keep going back to this, there was a lot of frustration in the room because we were really clear about the fact that messing with that offer, even if we supported it, it was unlikely to get a yes vote.
PN2049
Even though small changes had been made, what I m hearing from you is, you re saying small changes weren t enough?‑‑‑To their offer?
PN2050
Yes?‑‑‑No, they weren t.
PN2051
That s why you took the decision which came as a complete surprise on the 17th that you were going to a scope order?‑‑‑Well, I don t know the company s head. It surprises me if it was a surprise.
PN2052
The three regional scope, until this point, had never been formally put as part of any of your formal documentation. Every previous written documentation had a single scope in it?‑‑‑Yes.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2053
Let s go back to 10 July and Ms Garrott writes an email to the SBU effectively complaining about the conduct of members of the SBU in that when they were discussing particular claims in relation to leave and the requirements for medical evidence, said the reality was, in the small groups, different members of the SBU put significantly different claims on the table all purportedly with the authority of the SBU?‑‑‑I m just trying to think if I was at that meeting with medical claims. Look, I totally believe it, I m not disputing that. I don t know if I was at that meeting. I was at meetings where different claims were put.
PN2054
On behalf of the SBU?‑‑‑On behalf of the SBU. Not so much put, but it was clear that once we dug into the issue there was multiple views inside of the SBU, if you like, that was probably a better way to put it. Because there was no definitive position, we went into those negotiations and individuals were sort of representing more what they wanted than what had previously been discussed with the SBU because we hadn t had discussions in some of the areas.
PN2055
There s a discussion that then goes to and fro between Ms Garrott and Mr Harkins. Mr Harkins writes back stating Now while I try to be careful not to use offensive language, as you are well aware, in relation to your last paragraph, who the fuck do you think you re talking to. You are not my mother, a judge or a copper. See you in the Commission . That was addressed to all members, all bargaining representatives. Do you recall that correspondence?‑‑‑I do.
PN2056
Was Mr Harkins behaviour appropriate?‑‑‑It s not the behaviour I would have used.
PN2057
So was it appropriate?‑‑‑No. I wouldn t have used the language, no.
PN2058
Did you or any member of the SBU apologise to Ms Garrott for the SBU s spokesperson speaking to her in that manner?‑‑‑
PN2059
Ms Garrott then wrote back to Ms Harkins seeking again for an updated log of claims, that was due for Friday 11 July. Do you recall Ms Garrott seeking further updating?‑‑‑I do.
PN2060
Commissioner Lee you then meet and you have your good faith bargaining application and on 18 July Commissioner Lee provides his recommendations. They re all in TW18. You said earlier that you were very conscious complying with those recommendations?‑‑‑Yes.
PN2061
The reality is that on a number of occasions you breached those recommendations or the SBU?‑‑‑It s possible, you will have to give me specifics.
PN2062
I m going to go through those specifics. Here it is, IN27?‑‑‑I ve only got up to IN25.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2063
Sorry, it probably goes on, I ll just have a look. It should be there, there it is. Let s just go through this list. Met at Campbelltown, no problem. Confirmed the membership of the SBU or otherwise. No one said that they were no longer a member of the SBU, but I ve said there that one of the recommendation s requirements was that the bargaining representatives confirmed their attendance or otherwise at least three days prior to each meeting. No member of the SBU consistently complied with that requirement, although the CEPU did comply. I m putting that on the record that that was certainly discussed during Mr Lambert s testimony and TasWater does concede that the CEPU did comply. Other members did not comply with that requirement?‑‑‑Look, it wouldn t surprise me if we didn t. I know we had a standing discussion that Mr Gretton, one of our reps would attend all of the negotiations. We did have some issues with some people in the north, obviously the nature of some of our delegates means that they don t know what their workloads and if something comes up, they often pull out. I ve got no objections to that being a fact.
PN2064
The SBU were required to submit agenda items three days in advance, but consistently failed to meet that requirement?‑‑‑There s an item here that lists the thing that - I would agree with that fact. I don t know about if there were other agenda items that were problematic.
PN2065
We ve talked about what occurred on 15 December already, so we ll leave that. If you turn over, the confirmation of the delegates. The CEPU consistently confirmed that and the next one that is in item 9, it was to provide that log of claims with changes identified from the previous log of claims. A track change version was never provided, was it?‑‑‑No. You would have to read Commissioner Lee s instructions here because the way that Mr Nelson has it written out, those two items are not linked, whereas in Commissioner Lee s recommendations, those two items are linked.
PN2066
They are? We talked about that earlier, but I think your testimony was, in terms of the classifications, you didn t get all that you needed for the seniors agreement, but as far as the general agreement, which is the purpose of this application, they had been complied with?‑‑‑At that time, there was not seniors agreement.
PN2067
But you had agitated for scope and as late as 21 July, Ms Garrott actually confirmed in the Wocking meetings that there would be an inclusion, there was going to be a separate senior and general agreement?‑‑‑No, that was in October.
PN2068
Was in October?‑‑‑And this is July that I understand the Commissioner gave their - - -
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2069
No problem?‑‑‑Post this, that was primarily the concern for us was that we were waiting on quite a lot of detail about the classification structure because it related to the scope.
PN2070
You put out a media release relating to the spending of $1.1 million worth of consultant s money. Do you recall doing that?‑‑‑I do.
PN2071
Can you recall from the good faith bargaining requirements that there s no obligation to provide commercial-in-confidence information and that information contained commercial-in-confidence information that was TasWaters, that you published?‑‑‑Possibly.
PN2072
Possibly?‑‑‑Yes.
PN2073
It wasn t their financial figures weren t commercial-in-confidence? Mike Brewster certainly came out and said someone has breached our confidential information and your organisation published it?‑‑‑Yes.
PN2074
On 24 July, Mr Lambert, on behalf of the SBU put forward another without prejudice offer and that one was also a take it or leave it proposal / offer, wasn t it?‑‑‑You ll have to - I don t disagree, you ll have to just give me the details.
PN2075
It s TW18/TW17, both documents there. Sorry, just TW18 apologies?‑‑‑I ve got TW18 as an email from Mr Lambert.
PN2076
Go down there?‑‑‑Yes, got you.
PN2077
He writes to Ms Garrott and all the other members there of the SBU and basically says here s another offer that you can accept and if it s accepted, we ll all be okay, or words to that effect?‑‑‑Yes, that s correct.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2078
You then have that meeting and you advised when TasWater came back and didn t accept all the terms and conditions in that offer that it wasn t capable of negotiation?‑‑‑What we said to them on the day just to be clear, there was a large amount of SBU discussion about this and not unanimous agreement to put it, and what was agreed that we put it as an offer in an attempt to break through, but that, and this was explained very carefully to the company, but that if they rejected the offer, which was an attempt to break through negotiations, we would negotiate from our log of claims that had been there and had always been in place. This was an off to the side attempt to break through the negotiations and what we repeated ad nauseum during the meeting, was that this is not a new position. If you seek to negotiate, if this isn t to your liking, then we re happy to continue negotiations, but on the basis of our log of claims. This is not a new log of claims, it s an attempt to get a deal done.
PN2079
You made an offer and it was capable of acceptance?‑‑‑Yes.
PN2080
But when it wasn t, you were very unsatisfied with that outcome?‑‑‑Well, it wasn t unexpected. We were hoping it would be - - -
PN2081
You put it there, genuinely, it could have been accepted?‑‑‑Yes.
PN2082
The fact that it wasn t, was an unacceptable outcome?‑‑‑Well, it was a disappointing outcome, it wasn t unacceptable.
PN2083
From about into September, the parties start having meetings with the CEO / GMs?‑‑‑Yes.
PN2084
So we ve stepped up our negotiations and ultimately the SBU and TasWater s GMs and some bargaining representatives attempt to continue to negotiate on all of the issues in dispute. Is that accurate?‑‑‑Look, technically we were there for all issues. In reality, there was key issues that we d been banging heads on for a long time like disputes procedure and I know that was sort of the head liner. I mean I guess our hope was that we would continue to negotiate for as long as possible with the people that made the decisions, however, in reality I think we had Glenn Jamieson, Mike Brewster for one meeting. Glen Jamieson and Dean Page attend for another couple of meetings beyond that, but it was specifically because we d reached a real impasse around disputes procedure.
PN2085
In those lock-in meetings, you made a number of, sorry the GM meetings. The lock-in meetings you ve identified came in October?‑‑‑Yes.
PN2086
You made a number of progresses on certain clauses?‑‑‑There was, however a couple of those have now been interpreted differently. What may have been said by Mike Brewster is now interpreted differently by the unions as to the company, so we re almost back in dispute on some of those areas.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2087
At least the parties had arrived at new positions as they worked through that process?‑‑‑As I said, we did, but now we ve almost gone back on those because of an interpretation about what Mike Brewster said about termination which kind of undoes the major negotiation. I take your point, there was a couple of other things around the outside from memory, that were also discussed and progressed.
PN2088
That would have been at a considerable cost to TasWater to have made available the general managers and CEO to front up to those bargaining negotiations?‑‑‑Look, I d say if you re getting progress, it would be the opposite of a cost, it would be a benefit.
PN2089
In terms of resources, to have required those people to have attended that meeting, when ordinarily they wouldn t have, that would have been an additional cost for TasWater?‑‑‑I guess so. Those people are going to be paid no matter what they re doing. I don t think Bruce is getting overtime. His attendance wouldn t have cost the company more. There would have been an opportunity cost obviously and he wouldn t have been able to do something else.
PN2090
From 14 October to 20 October, that was the series of lock-in meetings?‑‑‑Yes.
PN2091
The idea was you effectively locked yourselves out for about 35 hours?‑‑‑Don t use lock-out, you can t use that word.
PN2092
Sorry, lock-in for approximately 35 hours of all the parties involved. That s the conventional number that s been bandied around as to how long it took. At that meeting, the SBU continued to push for best of the best at that stage?‑‑‑Not quite. At that point we still had a number of our additional claims on the table around things that were not contained in the three agreements. There was also a couple of Frankenstein clauses in there that weren t the best clause, they were a conglomeration of the best clauses.
PN2093
During that time there were periods of protected industrial action by a number of members?‑‑‑Prior to it, as I understand it.
PN2094
And after, 28 October there s some protected industrial action?‑‑‑Yes.
PN2095
On 5 November, voting opens. On 5 November, an email is received from a Brian Thompson that went to a number of TasWater employees which utilised the TasWater logo and the format of its question and answer. Turn to document TW26. There s the email list and a page over is the document in question. TasWater then had their IT departments check the document properties of the author of that document and turn to TW27, read out the author of the document?‑‑‑Luke Crowley.
PN2096
The author of that document was you?‑‑‑No, it wasn t.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2097
You re absolutely sure of that?‑‑‑Yes.
PN2098
You are under oath?‑‑‑I understand that. I can elaborate if you like, but no the author - - -
PN2099
Yes?‑‑‑I sent an email with - someone sent that FAQ around a small group. There was a couple of back and forward suggestions around some of the more honest answers. Someone has obviously has then turned that into a large document. That person was not me. The main reason is that releasing something like that on the vote, could undo the entire vote. So while I was amused, I won t tell a lie, and while I recognise one of the points is based on a point that I made a joke about, as in I guess I could be attributed to one of the points, I wasn t the author of it and I was not the person who sent it out. I did not support the sending out of it, mainly because it s very detrimental, should the agreement have been voted down and the company take umbrage to it, and claimed that people relied on that, that they then would have lost it. Why my name is in the author box, I genuinely don t know, but if you give me a couple of seconds, I ll put your name in an author box for a pdf. That particularly bothered me that I d been attributed to it. I also took the action of writing to members and advising them not to take that into account when making their vote because look, while I think things like that are a laugh, and I ll be honest, I thought it was amusing, it s stupid because you can undo the entire vote. I was confident the vote was going to go down anyway and to me, that was just a risk. Putting something like that out was giving the company something to hang their hat one and say this is the reason the vote went down, when the reason was the dud offer.
PN2100
On 14 November, and if you turn to TW25, although you may not have to, you basically wrote to Alex Garrott and advised her that you d be happy to give her a full rundown of the issues that arose out of the rejected vote?‑‑‑Yes, I remember that.
PN2101
In paragraph 40 you indicated that the SBU conducted a survey?‑‑‑Yes.
PN2102
You haven t provided the results of that survey in any of your papers, and I m not talking about the survey you presided today?‑‑‑I understand.
PN2103
You didn t provide any document whatsoever relating to that survey?‑‑‑No.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2104
Yet, you still rely on it in your statement?‑‑‑Our survey was quite specific. It was an attempt to cut through the seven unions and do a joint survey across all unions. It was preceded in the survey - it was done electronically, opt in, same deal, and it was preceded by the line that these results were to guide the SBU in getting the fairest and quickest agreement possible and that they would not be released to the company. That meant that people were free to give us their views and then we were obviously bound by the fact that it s not be released by the company, because otherwise we can t get - if you say you re going to release a survey to the company, you often don t great answers.
PN2105
You didn t actually let Ms Garrott know in any of your replies, that it couldn t be released because it was confidential, did you?‑‑‑No, but we offered to meet and discuss the results of the survey, which was rejected a number of times.
PN2106
Because in TW33 and TW34, which is on 26 November, Ms Garrott wrote to you saying she d sought information from you. You agreed that you were going to provide it and still, 12 days later, she hadn t received anything from you?‑‑‑No, because what we were requesting was a meeting to discuss where we could move forward. Negotiation over email is not satisfactory, in my mind. You could argue that it is fulfilling the requirements of the Act, but it s not an optimal way to negotiate. This was a huge amount of information that we felt was going to be useful to the negotiations and between misinterpretation or getting the wrong idea, delivering stuff like that over email is terrible and so we were seeking a meeting.
PN2107
Yet you provided an offer on the 4th in hard copy, an offer on the 8th on email, a meeting on 11th. Mr Ash represented that document again on 5th February. So you were quite comfortable in providing materials on emails. Your 22 priority items was on 1st December. Mr Gauld talked about those propriety items being dime a ditch on 2nd December. That all occurred by email, yet specific information relating to a member survey which you would have thought would have helped you get your yes vote, there s just no evidence of it, is it?‑‑‑Except for the constant emails requesting a meeting so we could discuss it, which the meeting was rejected.
PN2108
Ms Garrott was quite clear on what she sought. She said send me some materials that I can take, so I can prepare. I ve got a meeting that s coming up, and I need that document with all of the details?‑‑‑And we offered to meet and provide that. We could have met at any time, we were going to make a time to meet, but what we didn t want to do because - throughout this negotiation, it s been littered with one side not understanding what the other side was putting because it was either through people being too cavalier, or whatever reason. We ve had so many times where someone has come back to negotiations and just started on a course and we ve gone, hang on, that s not what we mean at all, how did you leave the room thinking that. So we were seeking a meeting so we could work through things and say look, there s no way you re going to get an agreement over the line with this. I think I wrote two or three emails to Ms Garrott asking for a meeting and specifically laying out that sending a page on email was not what we were seeking to do. We were seeking to deliver the information in person and in essence, continue the negotiations.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2109
Mr Crowley, you effectively just created this document, this survey for the purposes of these proceedings today, haven t you?‑‑‑It s to give us an idea of the support for this.
PN2110
Little bit odd, seeking support, don t you agree, on 30 March, when you d already received the statement from Ms Garrott, Mr Nelson and Mr Burles on 27 March?‑‑‑But also one of the things, no doubt, that the Commission will need to take into account is the view and I understand in scope the view of employees isn t the major test, but one of the things that was consistently throughout the company s statements was that there was no evidence that employees supported this.
PN2111
At the time of making the application, there was no evidence. This is created three months after you make the application?‑‑‑I understand. There was a huge amount of evidence that we had received in meetings and I think my statement even puts we did discuss this in meetings with members prior to the scope application being made and at the meetings I had around the state, we had support for it and I understand the other unions told me they had the same outcome. It s difficult to come here and say we had meetings and there was unanimous support, because it s not quantifiable - I understand it s not great evidence. So that was an attempt to turn the outcome of the meetings that we had in sort of November and December.
PN2112
Why didn t you do that at 17 December, when you actually put the employer on notice that you ve got scope concerns?‑‑‑To be honest, I was on holidays for a month and a bit. I left on the 19th and trying to wrap up everything. I just didn t think about it till then. We knew were the members heads were at.
PN2113
That sentence is incredibly self-serving consistent with your application, isn t it. Do you support enterprise bargaining agreements with the same scope as the existing agreements instead of one state-wide agreement? It just pre-supposes an answer, doesn t it?‑‑‑I m not sure what other question you would ask.
PN2114
What about what s important to you in bargaining?‑‑‑We had asked that and we ve got hundreds of replies around what s important in bargaining and we had hundreds of meetings. Look, you ve made a good point. That survey is to present here. We knew we had support, well I knew, from my members. The other unions had told me. I had been to one or two of the ETU meetings, but it was clear that we had support, and the other unions had told us we had support. What we didn t have is anything to present to the company or the Commission that demonstrated that.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2115
And so, on the 19th when TasWater wrote back to you, responding to your concerns, you had no consideration whatsoever in actually providing more information or negotiating it before making an application on 31 December?‑‑‑Again, this is an issue where neither side has - where the company s position has not wavered in any way for nine months, 10 months almost.
PN2116
Not waivered, yet we ve just been through the document on 15 December, which you agree was a recut proposal to its previous position on the 11th?‑‑‑In the area of one agreement versus three. There was toing and froing, I agree, but I didn t see any wavering in the company s position around scope at all. Even their response indicated absolutely no wavering around scope, so you ve got to ask how much time do you throw at something when the company s been absolutely definitive in their rejection of their position and has indicated that they re not open to any discussions around that point.
PN2117
Until 17 December you waited seven months and 20 meetings before you put something in writing?‑‑‑Yes, but it had been raised again along the way extensively by Noel Washington right from meeting one.
PN2118
THE DEPUTY PRESIDENT: We will be breaking for lunch shortly Mr Dilger.
PN2119
MR DILGER: I was going to suggest maybe we have a break now if that s okay, Commissioner and I will reconvene after that.
THE DEPUTY PRESIDENT: yes, we ll resume at 2.15.
<THE WITNESS WITHDREW [12.43 PM]
LUNCHEON ADJOURNMENT [12.43 PM]
RESUMED [2.17 PM]
<LUKE MICHAEL CROWLEY, RECALLED ON FORMER AFFIRMATION [2.17 PM]
CROSS-EXAMINATION BY MR DILGER [2.17 PM]
AUDIO MALFUNCTION [2.17 PM]
PN2121
MR DILGER: And the meeting you had when Mr Ash re‑presented your offer, that is the joint union document that you earlier presented on the 4th and the 8th?‑‑‑Yes. Yes.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2122
Mr Ash re-presented that on 5 February. You've earlier given testimony that you were at that meeting?‑‑‑Yes, and that was rejected.
PN2123
And that you recall it. Right, who by?‑‑‑I understand the company rejected that position. So this was a meeting where we again went around - look, some of these are repeats. I mean, we obviously have had that meeting a number of times but I had not had any series of meetings so far that year so was seeking to get back around members, and that was one of the questions we asked was were they still happy rolling forward with the push and they were.
PN2124
And in paragraph 64 you state that, "TasWater will not meet to discuss the agreement further until scope is resolved", but that's incorrect isn't it?‑‑‑I had an email from Alex Garrott saying that they didn't want to meet while the scope negotiations were on, that maybe I got the words wrong but that was my understanding of what Alex had written to us.
PN2125
Well, on 25 February 2015 TasWater met with the CEPU. Were you aware of that?‑‑‑Yes.
PN2126
On 2 March TasWater again met with the CEPU. Were you aware of that?‑‑‑Yes.
PN2127
And both those meetings were capable of resolving the current issues between the parties?‑‑‑I guess so, yes.
PN2128
And if you turn to TW44. It's an exchange between Alex Garrott and Todd Lambert. If you have a look - apologies, you haven't got it there Mr Crowley. Have a look on the second page, point number 2, where Alex Garrott writes to Todd on 24 March and says:
PN2129
Thank you Todd. Thank you for your email. TasWater continues to be willing to proceed to negotiate.
PN2130
?‑‑‑Yes.
PN2131
You've seen those emails?‑‑‑No, I don't think so.
PN2132
Mr Crowley, you earlier talked about taking protected industrial action as part of these proceedings. You haven't taken any protected industrial action since 28 October?‑‑‑No. No, it was only that - - -
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2133
Is the reason you have not continued to agitate for protected industrial action that your members do not support taking further protected industrial action?‑‑‑No, they have supported taking further action. It's my view from dealing with some of the people we've got involved in the negotiations that they would sink the company rather than submit to industrial action. So my advice to members has been that they would either need to consider very serious industrial action, but two-hour stoppages would be insufficient to get people to move, based on the experiences we had at Aurora, and we're obviously considering that. But my members are pretty cautious at the best of times, and so while anything's on the cards such as this they have not really seriously considered industrial action.
PN2134
So at proceedings where Commissioner McKenna I think suggested the availability of a bargaining dispute. Do you recall that?‑‑‑I actually wasn't at that discussion.
PN2135
Okay, thank you.
PN2136
Nothing further thanks, your Honour.
PN2137
THE DEPUTY PRESIDENT: Yes, just one question before I hand you to Mr Ash. The survey - Alison.
PN2138
THE WITNESS: I've got one here.
PN2139
THE DEPUTY PRESIDENT: The survey that you presented this morning, I note that there was 137 have answered that?‑‑‑Yes.
PN2140
Was that limited to APESMA members or was it across the board?‑‑‑It was definitely sent out to APESMA and CEPU members.
PN2141
Right?‑‑‑It was provided to the other unions but I'm unaware if they have sent it out or not.
PN2142
Right, so those responses from your knowledge would have come from either APESMA or CPSU(sic) members?‑‑‑I suspect so, yes.
PN2143
Yes. Yes, thank you.
*** LUKE MICHAEL CROWLEY XXN MR DILGER
PN2144
Any cross on that?
PN2145
MR DILGER: No, thank you, your Honour.
THE DEPUTY PRESIDENT: Mr Ash?
RE-EXAMINATION BY MR ASH [2.22 PM]
PN2147
MR ASH: Thank you, your Honour.
PN2148
Mr Crowley, Mr Dilger referred you to a meeting that occurred on 5 February 2015 which I attended and he stated that the unions again at that meeting proposed a single enterprise agreement that it had previously proposed on two occasions in December 2014. Did Ms Garrott again ask for a response to their proposal of 15 December 2014 in that meeting?‑‑‑I think they raised it as a concern again and we advised them again that we had considered we had responded.
PN2149
Did she then ask us for a detailed response?‑‑‑I'll have to check my notes. I'm sorry, I - yes, they have previously asked for a detailed response. It sounds right but I couldn't absolutely confirm it.
PN2150
Was the document provided as that detailed response?‑‑‑The document that we provided on the early December in essence was the minimum. So that was what we referred them back to on a number of occasions.
PN2151
So Mr Dilger put to you that the unions should have filed a section 240 application for the general agreement and you said that TasWater had said that scope wasn't negotiable. Can a section 240 application compel an employer, here TasWater, to retain the regional agreements?‑‑‑No, not - my understanding is it'd have to be a scope order.
PN2152
No further questions, your Honour.
THE DEPUTY PRESIDENT: Thank you, Mr Crowley, you're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [2.23 PM]
PN2154
THE DEPUTY PRESIDENT: Does that complete your evidence, Mr Ash?
PN2155
MR ASH: It does, your Honour.
PN2156
THE DEPUTY PRESIDENT: Mr Dilger?
PN2157
MR DILGER: Your Honour, what I propose to do now, I've originally given an opening and I won't propose to do that, given we are likely to do detailed closings tomorrow. Mr Burles wasn't in terms of chronology my preferred person to call but it sits in terms of the availability. So what I propose to do is we'll call Mr Burles, enable cross‑examination and re‑examination and then that would be the end of today's proceedings and we'd reopen again tomorrow with Ms Garrott, if that's all consistent with what your understanding is, sir.
PN2158
THE DEPUTY PRESIDENT: Yes. Yes, it is.
PN2159
MR DILGER: I would call Rodney Burles.
PN2160
THE ASSOCIATE: Could you state your full name and address please?
MR BURLES: Rodney James Burles (address supplied).
<RODNEY JAMES BURLES, AFFIRMED [2.25 PM]
EXAMINATION-IN-CHIEF BY MR DILGER [2.25 PM]
PN2162
THE DEPUTY PRESIDENT: Yes, Mr Dilger?
PN2163
MR DILGER: Thank you, your Honour.
PN2164
Mr Burles, you've provided two statements as part of these submissions, one 28 points on 25 March 2015 and one 10 points on 17 April 2015. Do you have those statements?‑‑‑Yes.
PN2165
In a folder prepared by myself. Have you recently read those statements?‑‑‑Yes, I have. They seem to be the same.
PN2166
And are there any requirement for any amendment to those statements?‑‑‑No, I can't see any.
PN2167
And do they remain to the best of your knowledge and belief accurate?‑‑‑Yes.
*** RODNEY JAMES BURLES XN MR DILGER
PN2168
I submit Mr Burles for cross‑examination, your Honour.
THE DEPUTY PRESIDENT: Yes, I'll just mark those statements. The statement dated 25 March 2015 will be exhibit RB.
EXHIBIT #RB WITNESS STATEMENT OF RODNEY JAMES BURLES DATED 25/03/2015
THE DEPUTY PRESIDENT: And the reply statement dated 17 April 2015 shall be RBR.
EXHIBIT #RBR REPLY STATEMENT OF RODNEY JAMES BURLES DATED 17/04/2015
THE DEPUTY PRESIDENT: Mr Ash?
CROSS-EXAMINATION BY MR ASH [2.27 PM]
PN2172
MR ASH: Thank you, your Honour.
PN2173
Mr Burles, paragraph 8 in your first statement in relation to the southern agreement, you say the negotiations were difficult, is that right?‑‑‑That's correct.
PN2174
And it took 10 months for an 80 per cent yes vote, is that right?‑‑‑That's correct.
PN2175
And in paragraph 12 you state that there was minimal industrial action. Is that correct?‑‑‑That's correct.
PN2176
There wasn't much industrial action at all, was there?‑‑‑That's correct.
PN2177
And those negotiations were to replace 11 different industrial instruments. Is that the case?‑‑‑Yes, I believe that was 11. Yes
PN2178
Yes, nad in relation to paragraph 13 of your first statement, the Cradle Mountain Water Agreement, you say the negotiations were difficult, is that correct?‑‑‑Yes, that's correct.
*** RODNEY JAMES BURLES XXN MR ASH
PN2179
And it took eight months for a 70 per cent approval vote, is that right?‑‑‑That's correct.
PN2180
And no industrial action was taken, is that right?‑‑‑That's correct.
PN2181
And in relation to paragraph 21 of that first statement in relation to the Ben Lomond Agreement, you again say that the negotiations were difficult?‑‑‑Yes, that's correct.
PN2182
And it took 15 months for a 53 per cent yes vote, is that right?‑‑‑That's correct.
PN2183
And there was industrial action, is that right?‑‑‑There was.
PN2184
How much was there?‑‑‑Quite a fair bit. I'd say between six and eight weeks ongoing.
PN2185
There was no strike action at all, was there?‑‑‑Yes, there was.
PN2186
Are you sure?‑‑‑A hundred per cent sure.
PN2187
And in what form was that strike action?‑‑‑Had a rally for two hours, a two-hour stop work rally up in Launceston's central CBD area, had a barbecue rally there.
PN2188
Yes?‑‑‑And yes, that was strike action.
PN2189
Right, not all employees would have been on strike for that rally though, would they?‑‑‑They were - the - I can only talk on behalf of the CEPU.
PN2190
Right?‑‑‑All the CEPU members were there.
PN2191
Right, and aside from those two rallies what other industrial action was there?‑‑‑Ben Lomond Water there was bans on overtime, bans on callbacks, bans on attending certain meetings. There's a few different bans like that. The major ones were the callbacks, on‑call.
PN2192
Yes?‑‑‑And the - those ones, yes.
*** RODNEY JAMES BURLES XXN MR ASH
PN2193
And that industrial action was over a six to eight week period only?‑‑‑From recollection. It might have been longer. Like, it was - I think it was at least eight weeks, yes.
PN2194
No further questions, your Honour.
PN2195
THE DEPUTY PRESIDENT: Mr Dilger?
PN2196
MR DILGER: Nothing further from me either, your Honour.
THE DEPUTY PRESIDENT: Thank you Mr Burles. You're excused?‑‑‑Okay.
<THE WITNESS WITHDREW [2.29 PM]
PN2198
THE DEPUTY PRESIDENT: Does that mean we get an early minute?
PN2199
MR DILGER: I think so, your Honour.
PN2200
MR ASH: Yes.
PN2201
THE DEPUTY PRESIDENT: Very well, we'll adjourn until 10 am tomorrow.
ADJOURNED UNTIL TUESDAY, 19 MAY 2015 [2.29 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LUKE MICHAEL CROWLEY, AFFIRMED................................................ PN1705
EXAMINATION-IN-CHIEF BY MR ASH...................................................... PN1705
EXHIBIT #LMC WITNESS STATEMENT OF LUKE MICHAEL CROWLEY DATED 24/03/2015 WITH ATTACHMENTS................................................................................... PN1714
EXHIBIT #LMCR REPLY STATEMENT OF LUKE MICHAEL CROWLEY DATED 02/04/2015............................................................................................................................... PN1715
EXHIBIT #LMC1 ONLINE SURVEY RESULTS......................................... PN1724
CROSS-EXAMINATION BY MR DILGER................................................... PN1725
THE WITNESS WITHDREW.......................................................................... PN2120
LUKE MICHAEL CROWLEY, RECALLED ON FORMER AFFIRMATION PN2120
CROSS-EXAMINATION BY MR DILGER................................................... PN2120
RE-EXAMINATION BY MR ASH.................................................................. PN2146
THE WITNESS WITHDREW.......................................................................... PN2153
RODNEY JAMES BURLES, AFFIRMED..................................................... PN2161
EXAMINATION-IN-CHIEF BY MR DILGER.............................................. PN2161
EXHIBIT #RB WITNESS STATEMENT OF RODNEY JAMES BURLES DATED 25/03/2015............................................................................................................................... PN2169
EXHIBIT #RBR REPLY STATEMENT OF RODNEY JAMES BURLES DATED 17/04/2015............................................................................................................................... PN2170
CROSS-EXAMINATION BY MR ASH........................................................... PN2171
THE WITNESS WITHDREW.......................................................................... PN2197
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