|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051902
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
10.00 AM, TUESDAY, 19 MAY 2015
Continued from 18/05/15
PN2202
THE DEPUTY PRESIDENT: Yes, good morning. One of you? Mr Ash?
PN2203
MR ASH: There's one preliminary matter, your Honour, and that is that Mr Swanton has indicated that he will seek leave to make some submissions in closing after I make my submissions in closing. There's no objections at the Bar table, and aside from that I understand that Ms Garrott is Mr Dilger's witness.
PN2204
THE DEPUTY PRESIDENT: Yes.
PN2205
Mr Dilger?
PN2206
MR DILGER: Thank you, your Honour.
PN2207
Ms Garrott, you provided two statements. One - sorry.
PN2208
THE ASSOCIATE: Could you state your full name and address please?
MS GARROTT: Alexandra Jane Garrott (address supplied).
<ALEXANDRA JANE GARROTT, SWORN [10.02 AM]
EXAMINATION-IN-CHIEF BY MR DILGER [10.02 AM]
PN2210
THE DEPUTY PRESIDENT: Yes, Mr Dilger?
PN2211
MR DILGER: Ms Garrott, you've provided two statements as part of these proceedings, one on 27 March and one on 17 April 2015. Have you got those in front of you?‑‑‑I do.
PN2212
And they had a number of attachments with that. Have you had the opportunity to read those statements?‑‑‑I have.
*** ALEXANDRA JANE GARROTT XN MR DILGER
PN2213
Are there any amendments that you'd like to bring to the attention of his Honour?‑‑‑I have three minor amendments. The original statement, being the first statement, at point 137. I would like to correct a date and it is at the third dot point - I beg your pardon, the second dot point which commences, "The TasWater position taken to an employee vote". The date I noted there was the 16th of December 2014. That was the 15th of December 2014. I'd like that to be corrected please.
PN2214
Thank you?‑‑‑And the same correction applies to point 139. The third line down again states the 16th of December 2014. That should be the 15th of December 2014. And the same correction applies to point 163. On the fifth line down commencing "Members on" again the 16th of December should be the 15th of December 2014.
PN2215
Thank you. Content with that, your Honour?
PN2216
THE DEPUTY PRESIDENT: Yes.
PN2217
MR DILGER: Are there any further amendments, Ms Garrott?‑‑‑No, thank you.
PN2218
And do the remainder of your statements remain to the best of your knowledge and belief true and correct?‑‑‑Correct.
PN2219
Thank you. I just have one question. If a - - -
PN2220
THE DEPUTY PRESIDENT: I will just mark that.
PN2221
MR DILGER: Apologies, your Honour.
PN2222
MR ASH: I do have some objections to Ms Garrott's first statement. I expect your Honour will probably say they're matters for weight but I'm instructed to put these objections on record.
PN2223
THE DEPUTY PRESIDENT: Yes, okay, Mr Ash.
PN2224
MR ASH: Paragraph 34, the second sentence.
PN2225
THE WITNESS: Of my first statement?
PN2226
MR ASH: This is all going to be your first statement, Ms Garrott?‑‑‑Yes.
*** ALEXANDRA JANE GARROTT XN MR DILGER
PN2227
So paragraph 34 the second sentence, we object to that on the basis of it being non-expert opinion evidence.
PN2228
THE DEPUTY PRESIDENT: So:
PN2229
I was concerned about the behaviour displayed at the meeting because it did not appear to me to be that the attendance for the numbers of delegates put forward was for any particular bargaining outcomes but rather to get -
PN2230
You're objecting to that?
PN2231
MR ASH: I am.
PN2232
THE DEPUTY PRESIDENT: Yes.
PN2233
Mr Dilger?
PN2234
MR DILGER: Your Honour, I think it's fair to say in all these proceedings they're meant to proceed with a level of informality, no specific rules of evidence applying. Both statements - sorry, both parties have produced statements with a large amount of opinion evidence. I think it's quite clear throughout that the majority of that establishes the basis upon which that belief is made, and these are more correctly submissions to be made on closing as to weight and not really to go through some pedantic exercise of removing what has clearly been an availability of Mr Ash and his witnesses to have replied in their reply statements seeking those to be excised, not at this late stage in proceedings.
PN2235
THE DEPUTY PRESIDENT: Yes, Mr Dilger. I agree with that position, Mr Ash. Your objection is noted but I will allow the statement to stand and - - -
PN2236
MR ASH: Sorry, your Honour, there are a number of objections. Can I go through them for the record?
PN2237
THE DEPUTY PRESIDENT: Note them all? Yes.
PN2238
MR ASH: And then perhaps we can agree that they are matters of weight.
PN2239
THE DEPUTY PRESIDENT: Yes.
*** ALEXANDRA JANE GARROTT XN MR DILGER
PN2240
MR ASH: The second objection is paragraph 36 the first sentence, again on the basis of it being non-expert opinion evidence.
PN2241
THE DEPUTY PRESIDENT: Yes.
PN2242
MR ASH: Paragraph 69 from the second sentence, also on the basis of it being non-expert opinion evidence. Paragraph 71, non-expert opinion evidence. Paragraph 73 on the same basis. Paragraph 77, the second sentence, non‑expert opinion evidence. Paragraph 88 in relation to relevance. Paragraph 82, the second sentence, in relation to non‑expert opinion evidence and finally paragraph 142, the first three sentences. Again non‑expert opinion evidence.
PN2243
THE DEPUTY PRESIDENT: Yes, Mr Ash, I note your objections. I will allow the statements to stand unamended and the point you make will be a matter of weight to be addressed during closing submissions.
PN2244
MR ASH: Thank you, your Honour.
THE DEPUTY PRESIDENT: Yes, Mr Dilger? Yes, I was about to mark that. The witness statement of Alexandra Garrott will be marked exhibit AG with annexures TW1 to TW44.
EXHIBIT #AG WITNESS STATEMENT OF ALEXANDRA GARROTT DATED 27/03/2015 WITH ANNEXURES TW1 TO TW44
THE DEPUTY PRESIDENT: And the in reply statement of Alexandra Garrott with annexures TW45 to TW72 will be exhibit AGR.
EXHIBIT #AGR WITNESS STATEMENT OF ALEXANDRA GARROTT DATED 17/04/2015 WITH ANNEXURES TW45 TO TW72
PN2247
THE DEPUTY PRESIDENT: Yes, Mr Dilger?
PN2248
MR DILGER: Thank you, your Honour.
*** ALEXANDRA JANE GARROTT XN MR DILGER
PN2249
Ms Garrott, the CEPU are seeking to have a three regional agreement scope. What would that mean for TasWater's administration processes?‑‑‑That question can be answered on a number of fronts. Behind the scenes it would mean an additional administrative burden for our time sheeting, our payroll, to have three terms and conditions - sets of terms and conditions of employment operating in quite different ways. It would in addition continue the - what is perceived to be inequity amongst the team members across the state. It would mean team members working side by side upon regional borders would have different sets of terms and conditions of employment. It would mean that team members could not easily move around the state. The terms and conditions of employment would not be necessarily applicable from one region to the next.
PN2250
What would it mean for your team, the employee relations team?‑‑‑Sure. It increases the complexity of managing the state, that team members - we need to ensure that we understand the three sets of terms and conditions of employment. It means that my team members who have a statewide role, they have a focus on a particular business unit. A business unit would have at least three terms and conditions of employment within one business unit across the state. So my HR business partners who provide a business-wide service for one division of the organisation would be administering three sets of terms and conditions of employment.
PN2251
And you mentioned payroll. What would it mean for them specifically?‑‑‑Sure. With our payroll team the simplification by having one set of terms and conditions of employment would increase the productivity and efficiency of that team. There is the potential for that team to then focus on more proactive work rather than just the hours crunching through three sets of terms and conditions of employment.
PN2252
Thank you. I have no further questions, your Honour. Just a question really for you. There are a lot of attachments here. Would it be of any assistance for you for Ms Garrott to go through each of those and explain what they are? We have been through predominantly all of them during proceedings, and if you don't need any further assistance I'm happy to leave it. But if it would be of assistance, I would ask Ms Garrott to go through and explain them.
PN2253
MR DILGER: But that was really a matter for evidence‑in‑chief and I do note that some questions have been asked. I would normally object. I didn't because they didn't raise matters that are new and what's unusual in these proceedings is the respondent actually had the opportunity to reply to the reply evidence of the applicant. I think the evidence‑in‑chief is well and truly here and I don't think it should be built on any further. I don't think that's appropriate.
PN2254
THE DEPUTY PRESIDENT: Well, to the extent that they were available to me prior to the hearing, Mr Dilger, I have read them.
PN2255
MR DILGER: Okay.
*** ALEXANDRA JANE GARROTT XN MR DILGER
PN2256
THE DEPUTY PRESIDENT: To the best of my ability.
PN2257
MR DILGER: Yes, it was only for your assistance, your Honour.
PN2258
THE DEPUTY PRESIDENT: Thank you.
PN2259
MR DILGER: I wasn't seeking to extend anything.
PN2260
THE DEPUTY PRESIDENT: No.
PN2261
MR DILGER: The documents speak for themselves. It was really just to assist your understanding.
PN2262
THE DEPUTY PRESIDENT: Yes. No, I appreciate that.
Mr Ash?
CROSS-EXAMINATION BY MR ASH [10.12 AM]
PN2264
MR ASH: Yes, thank you, your Honour.
PN2265
Ms Garrott, in paragraph 9 of your statement - so I'm going to start with your first statement, so every reference will be to your first statement. You assert that the objectives of efficiency and good commercial practice underpin TasWater's preference for a single enterprise agreement. Is that right?‑‑‑?‑‑‑In that statement, yes.
PN2266
And that's based on TasWater believing that it will achieve an outcome of consistent terms and conditions statewide?‑‑‑Part of TasWater's objective to be more efficient is to include consistent terms and conditions statewide. There are multiple other facets to TasWater becoming more efficient as an organisation from the three regional enterprise agreements.
PN2267
The question is in relation to a single enterprise agreement. That's in relation to having an existent set of terms and conditions statewide, is that right?‑‑‑Could you repeat your question please?
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2268
Sorry. In relation to why you want a single enterprise agreement?‑‑‑Yes.
PN2269
It's because you want to achieve a consistent set of terms and conditions statewide?‑‑‑We do want a consistent set of terms and conditions statewide but not just for the efficiency of the organisation. There are multiple reasons why. It is fairness and equity for our team members. It is cultural cohesiveness. It's the achievement of a One TasWater set of terms and conditions which do flow on to our practices in the workplace as well. So there is multiple facets. It's not just about efficiency.
PN2270
You mean two sets, don't you? So there's the senior agreement and the general agreement on the current proposal?‑‑‑TasWater is open to having a senior agreement as well as a general agreement and we have progressed to the greatest extent towards negotiating that senior agreement, yes.
PN2271
Yes, but it's not going to be one single agreement. We're looking, on your current proposal, at two agreements across TasWater statewide?‑‑‑And if you're asking me to make a distinction why, TasWater has chosen to have two agreements. I'm not sure, could you repeat your question please?
PN2272
It was really whether or not that's correct, you're going to have two - on your current proposal there will be two statewide enterprise agreements?‑‑‑Correct. Correct.
PN2273
Yes. There must be a cost to these negotiations themselves, is that right?‑‑‑Absolutely.
PN2274
And it would be in TasWater's interests for negotiations to be concluded sooner rather than later. Would you agree with that?‑‑‑With the right set of terms and conditions of employment, absolutely.
PN2275
Thank you, and part of that you say is that you don't want inequity across the state?‑‑‑Correct.
PN2276
Yes, and the TasWater CEO, he agrees on record saying that it will take two or three further agreements until your employees are on the same pay rates across the state. Do you agree with that?‑‑‑Could you refer me to that reference please, Mr Ash?
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2277
I don't have it with me. It's whether or not you agree with that?‑‑‑I can't answer that question.
PN2278
But would you agree that - - -?‑‑‑I'm - - -
PN2279
- - - the employees are currently on different rates of pay across the regions?‑‑‑The - - -
PN2280
Well, are they different rates of pay or not?‑‑‑The classifications of employment have the same rates of pay but the northern region enterprise agreement, which is about $15 off per annum per classification.
PN2281
Right and - - -
PN2282
THE DEPUTY PRESIDENT: I'm sorry, I didn't hear that last answer. The northern agreement?‑‑‑Bar the northern region enterprise agreement, which due to some incremental change is about $15 per annum per classification off the other two regions.
PN2283
$15 per annum different?‑‑‑Different. Different, yes. Higher.
PN2284
Thank you?‑‑‑Probably between 11 and $15 per annum, depending on the level of classification.
PN2285
MR ASH: And so all the other employees are on the same rates of pay. Is that right?‑‑‑Our employees are classified on the three enterprise agreements between levels 1 to level 7 and they are - their position descriptions provide which level they are classified at. So the direct answer is no, they're not paid the same because they're all in different classification levels.
PN2286
Yes?‑‑‑As defined by their position description.
PN2287
And on the current proposal of the general agreement this pay rise of 2.5 or 2.8 per cent, I think it's 2.5 at the moment with back pay, that's not going to change that so they're all still going to be on different classifications with different pay rates. Is that right?‑‑‑They will be on the same classification structure and the pay rate would apply to the new classification structure as proposed. So I'm not getting the point of the question.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2288
So you're going to translate employees from different classifications with higher rates or lower rates of pay to common classification structures? Because they're classified in different ways at the moment which - - -?‑‑‑The three classification structures all have a level 1 to a level 7.
PN2289
Yes?‑‑‑The pay rates I will say are substantially the same for level 1 to level 7. What is potentially different is the points within those classifications which are performance-based pay points.
PN2290
Right?‑‑‑So - but level 1 to level 7 have substantially the same pay rates.
PN2291
So would you agree then that because of those performance‑based pay increments employees in the same classification performing the same work are paid different amounts at the moment and they will be under your current proposal?‑‑‑Repeat that for me please?
PN2292
Sorry, so because of these increments within the classifications?‑‑‑Pay points.
PN2293
Sorry, the pay points. That employees within the same classification and performing the same work are being paid different amounts at the moment?‑‑‑Based upon their performance, their longevity in the role. So a new employee who enters TasWater is not always deemed to be 100 per cent competent in their role. They would start often, and it is our general practice to start a new employee at a lesser pay point until they have demonstrated their competency in the role.
PN2294
So there are differences in the rates of pay currently but they're not significant. Is that your evidence?‑‑‑Can I ask you to separate classifications and pay points please?
PN2295
Well I'm merely concerned, Ms Garrott, about - and what I want you to answer is what employees are actually paid at the moment and what the proposal is that they will be paid, because we're talking about inequity, or you're talking about inequity. It's whether or not on your evidence this single enterprise agreement you're proposing is going to address that inequity?‑‑‑We don't propose there is current inequity in the classification levels nor the pay points currently.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2296
In paragraph 11 of your statement, Ms Garrott, you talk about the movement of individuals around the state. Are you suggesting directing employees to work far away from their normal depots or places of work?‑‑‑The proposed general enterprise agreement, of which the vote document I don't have a copy in front of me. I'm not sure if there's one at the Bar table. But there is a proposal not to direct employees around the state except within a certain time limitation. That is for example you may be directed to another workplace if it is within 30 minutes of your usual work site. Movement around the state is by opportunity. It is by an employee seeing, "I have a potential opportunity and I volunteer to have an alternate role in a different part of the state".
PN2297
Yes, and they can accept that offer or reject it?‑‑‑Correct.
PN2298
Yes?‑‑‑But we still have the 30 minute time difference.
PN2299
But they have normal places of work. so the employees that are currently there, their normal places of work are within these regions really?‑‑‑There are areas within the state particularly the - on the east coast or the north east coast of Tasmania where a 30 minute time difference could mean you do move across the boundaries that currently exist.
PN2300
When you direct them to do that?‑‑‑No, 30 minutes of travel will do that.
PN2301
But their normal place of work, Ms Garrott, that's within the regions as it is?‑‑‑Well, the normal place of work is where you rock up to work each day. It is a defined provision if I understand, normal place of work.
PN2302
Yes?‑‑‑So the vast majority of our team would go to their normal place of work to start on a daily basis, you are correct. But in exceptional circumstances or where an employee is identified as having a good potential to take another role in another region of the state, this would apply definitely.
PN2303
Because what I'm putting to you, Ms Garrott, is that they're not literally working side by side are they? Different regions on different conditions?‑‑‑Yes they are.
PN2304
You said in exceptional circumstances they'll be directed to work outside their normal place of work?‑‑‑Mr Ash, you're talking about an individual moving locations. You are now talking about two individuals working side by side. Can you restate your question for me?
PN2305
Sorry, so it really was whether or not you are directing employees to work outside their normal place of work so that they're working side by side with other employees from different regions?‑‑‑So 30 minutes of travel.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2306
Yes?‑‑‑If that's what the proposal is, and could bring someone outside their usual region, yes, to change their normal starting place. So what is proposed within the general enterprise agreement that was taken to the vote, my understanding is it was a 30 minute provision that TasWater could direct an alternate place of work, a normal starting place within 30 minutes of their usual travel time. So without a map of Tasmania in front of me, let's think about the small team Triabunna, for example.
PN2307
It doesn't mean anything to me, Ms Garrott?‑‑‑Or Swansea and St Helens.
PN2308
Yes?‑‑‑So St Helens currently lies within the division of the northern region. Swansea lies within the division of the southern region, yes? Yes, so Swansea and St Helens aren't that far apart.
PN2309
Sure?‑‑‑And these two teams now as TasWater have one regional manager that covers the east coast, okay? And yet that regional manager who covers the east coast has two sets of people less than half an hour apart that are on different sets of terms and conditions and these team members are utilised throughout that east coast region.
PN2310
Sure, Ms Garrott, but you'd agree that when those teams report to their normal place of work, so their depot with their teams, they go to work with their teams. Occasionally they may be directed to work elsewhere but they're working with the current teams that are regional based?‑‑‑Each team that has the same normal place of work would be covered by - for their normal place of work the same terms and conditions of the enterprise agreement.
PN2311
Thank you Ms Garrott. In paragraph 17 of your statement you refer to the TasWater values. What are those values?‑‑‑Off the top of my head, and this is a test, it is honesty, team work. Sorry, it's honest and straightforward, team work, long term thinking, it is community, and there is one more.
PN2312
Is it fairness?‑‑‑Fair?
PN2313
Is it fairness?‑‑‑I don't believe fairness is one of them but if one of my - perhaps the person at the Bar has our values in front, I will be able to share. But fairness is not but the TasWater values are all-encompassing.
PN2314
Yes?‑‑‑And it is very much team work I would say brings fairness into it.
PN2315
Ms Garrott, did the shareholders' letter of expectations that was adopted in 2013 refer to the preservation of employment conditions?‑‑‑Could you refer me to the relevant attachment?
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2316
It's publicly available. It's on your website?‑‑‑I understand.
PN2317
I don't have a copy with me?‑‑‑Right.
PN2318
If it's really important I can pull it up and show you, but are you aware of the shareholders' letter of expectations under section 12 of the Water and Sewerage Corporation Act 2012?‑‑‑I am aware of it however I don't have immediate access to what it says, nor a full recollection of what it might say.
PN2319
MR DILGER: Your Honour, this is a curious question to provide. Mr Ash has had months to provide documents on which he's now seeking to cross‑examine Ms Garrott. It wasn't raised as part of the statements in either Mr Lambert, Mr Washington, Mr Flanagan, Mr Crowley and now he's cross‑examining on it when it's not related.
PN2320
MR ASH: Those witnesses weren t going to be able to properly respond to legislative intent that has been argued so strongly by the respondent, your Honour.
PN2321
THE DEPUTY PRESIDENT: No, I will allow the question. I think it's a reasonable question.
PN2322
MR ASH: So are you or are you not aware of this shareholders' letter of expectations?‑‑‑I am aware of it.
PN2323
Okay, and are you or are you not aware that it does contain a commitment for a preservation of employment conditions?‑‑‑I - - -
PN2324
Following the merger of the corporations?‑‑‑I am not able to respond to that question. I don't have that level of detail, nor do I have access to that to refer to.
PN2325
Okay, and you would agree then that - would you agree that section 12 of that legislation that you refer to heavily in your statement refers to the shareholders' letter of expectations?‑‑‑I'm not able to respond to that question without confirmation in front of me.
PN2326
So you wouldn't be able to respond to whether or not, and I put it to you it is still in force?‑‑‑I'm not able to respond to that statement.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2327
At paragraph 25 of your statement you state that "they were negotiated in a similar environment with several existing enterprise" - sorry, this is where you state that previous negotiations were in a similar environment of several existing awards and enterprise agreements. Is that correct?‑‑‑Correct. My understanding is for the southern region there was formerly 11 different enterprise agreements or terms and conditions of employment. In the northern region there was six different enterprise agreements and in the north west there was eight, and each of these regions were able to form a set of working conditions, a new enterprise agreement, out of those 11 or eight or six former agreements.
PN2328
And that's a lot more than three, isn't it?‑‑‑It certainly is.
PN2329
And they were all negotiated in a shorter period of time than we have reached now in relation to these negotiations?‑‑‑The timeframe for those negotiations I believe were in one of my attachments.
PN2330
Yes?‑‑‑And if you'd like to refer me to which attachment it is, Mr Ash?
PN2331
It's your evidence, Ms Garrott?‑‑‑The timeframes did vary between the enterprise agreements. If you can just give me one moment and I will find that attachment.
PN2332
I actually understood, Ms Garrott, for the evidence to be clearly set out in Mr Burles' statement. I don't know if you have that handy?‑‑‑No, it is my attachment - - -
PN2333
That might refresh your memory?‑‑‑- - - number 1, Mr Ash.
PN2334
And so would you agree that the question that they were reached in a shorter period of time, agreement was reached in a shorter period of time than we've reached now in relation to these negotiations?‑‑‑So you'll see from my attachment number 1 the Ben Lomond Water Enterprise Agreement, the notice of employee representational rights was issued on the 16th of November 2009 and a yes vote in March 2011. So no, for the Ben Lomond Water Enterprise Agreement.
PN2335
Why is that a no, Ms Garrott?‑‑‑There was an initial no vote with the - - -
PN2336
Sorry, no, why do you disagree that that period of time is not equal or shorter than this current period of time?‑‑‑It's greater.
PN2337
It's greater?‑‑‑Yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2338
When was the notice of employee representational rights first distributed in relation to these negotiations?‑‑‑The 26th of February 2014.
PN2339
Okay, and you would still agree then that the period with the negotiations, the Ben Lomond Water Enterprise Agreement, that period of time was greater than where we are right now?‑‑‑Let's do our calculations. So we have been going - we have been negotiating from the notice of employee representational rights which was actually the second issue on the 28th of February 2014 to now, which is 15 months.
PN2340
Yes?‑‑‑Correct. The note - the Ben Lomond Water was 14 months.
PN2341
So your answer then is where we currently are is at more time than where we were with those three previous agreements?‑‑‑Yes, substantially similar.
PN2342
Substantially similar?‑‑‑Substantially similar, Mr Ash.
PN2343
But we're not very far along though, are we Ms Garrott?‑‑‑We say that we have substantially negotiated the general enterprise agreement. Indications from some responses from unions suggest that the points outstanding were limited to three or four points.
PN2344
Are they those things that you can't move on? Are they those key points that you just referred to; are they the ones that TasWater cannot move on?‑‑‑So one of them was job security.
PN2345
Yes?‑‑‑Which is a key claim from particularly the CEPU.
PN2346
Yes?‑‑‑Job security clause applies only in the north west - in the north of the state at the moment, in the northern region enterprise agreement. The history of that job security clause from the negotiations of two thousand - from 2009 to 2011 was quite exceptional. I'm happy to take you in to the history of why there is a job security clause.
PN2347
No, it's okay, Ms Garrott?‑‑‑Yes.
PN2348
So taking you back to the negotiations referred to in TW1?‑‑‑Yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2349
Now you'd agree, wouldn't you, that very little, I think in some cases none and in some cases little industrial action was taken in relation to those agreements?‑‑‑Correct. Industrial action as far as I am aware was only taken for the Ben Lomond Water Enterprise Agreement 2011. The TasWater Water and Sewerage Corporation Southern Region Enterprise Agreement there - as far as I'm aware there was no industrial action. Likewise with the Cradle Mountain Water Enterprise Agreement 2010, there was no industrial action. And both the Cradle Mountain and southern had a yes vote for their enterprise agreement as first proposed. Whereas the Ben Lomond enterprise agreement had an initial no vote and a re-presentation of the second offer, which was subsequently voted up.
PN2350
Now I'll go back again to what we were talking about before, where you suggested that you believed the general agreement was substantially negotiated. Is that right?‑‑‑Aspects of it were, yes.
PN2351
But you did refer to some key issues?‑‑‑Yes.
PN2352
And you about the job security clause?‑‑‑Yes.
PN2353
And how that was a significant issue for both sides?‑‑‑Yes.
PN2354
There's really a stalemate on those key claims, isn't there?‑‑‑On the job security clause yes, there is a stalemate. However - - -
PN2355
Any other clauses?‑‑‑However.
PN2356
Yes?‑‑‑TasWater has and has always wanted to open discussions on other ways to deal with concerns about job security. It's not just - it doesn't just need to be dealt with by a pure job security clause. There are other ways to manage it. That is, consideration of aspects of redundancy, considerations of aspects of additional consultation and dispute resolution. So to actually have a job security clause as a discrete job security clause is not the only way to deal with what we believe are the concerns of the team members.
PN2357
And you've had those discussions with the unions about those proposals, haven't you?‑‑‑We have, yes.
PN2358
And agreement wasn't reached?‑‑‑Correct. However we presented another offer on the 15th of December 2014 where we further addressed that and we have not received a response from the unions.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2359
You did receive a response though, didn't you Ms Garrott?‑‑‑On the 5th of February the response was, "Here is our latest take it or leave it offer".
PN2360
But Ms Garrott wasn't - - -?‑‑‑And - - -
PN2361
Even going back to 15 December that you just referred to, it was rejected. Your offer was rejected, wasn't it?‑‑‑It was rejected outright.
PN2362
Yes?‑‑‑Without - - -
PN2363
And you asked for details, a more detailed response. Was that right?‑‑‑That offer we presented on the 15th of December had items open to negotiation. How can items open to negotiation be rejected outright without consideration of how they can be negotiated?
PN2364
Because the unions prior to that date, Ms Garrott, they've said to you, "This document here represents what we think will get a yes vote". Is that right?‑‑‑What date was that document, Mr Ash?
PN2365
The 4th and the 8th for instance, but I think there was the same document you've referred to in your statement a few times. It was provided to you again on 5 February 2015 by myself?‑‑‑Right. May I tell you how many logs of claims we've had from the single bargaining unit?
PN2366
Sorry, what was it you were request - what were you asking permission for?‑‑‑To make comment.
PN2367
You can answer the question, sorry?‑‑‑And what was the question, Mr Ash?
PN2368
The question was whether or not the unions had provided you with a document on the 4th and the 8th and again - although we're not talking about that time period - on 5 February 2015 and said, "This represents what we say will get you over the line"?‑‑‑Okay.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2369
Did they say that or not?‑‑‑They have present - you're quite right, you handed me a document on the 5th of February 2014(sic). It was the same with the document on the 8th of December 2014. At that meeting, Mr Ash, you may recollect I asked on a number of occasions, "Can we please have a response to our 15th of December proposal?" Within our 15th of December proposal we asked - we showed where we had ability to negotiate. The response was, "Here is your response. This will get you a yes vote".
PN2370
That's right?‑‑‑That was the response. It wasn't a considered response with details of why our proposal was accepted or rejected in each of its elements. TasWater wanted and still wants to continue negotiations and in good faith we would like to see where elements and not just the whole package, but where elements of our proposal is acceptable or not acceptable.
PN2371
But that's a detailed document that you were provided, isn't it? It was in the form of a completed enterprise agreement?‑‑‑Is this the document that you're referring to of the 8th of December and the 5th of February?
PN2372
Yes, the 4th, the 8th and 5 February. Yes?‑‑‑Okay, the document of the 4th of December was different to that of the 8th, of the 8th of December. There were 14 additional items put into the document of the 8th of December. So are you referring to the document of the 4th of December or the 8th of December?
PN2373
I'm referring to the document of 8 December and the document of 5 February?‑‑‑Yes, right. Was it? It was presented in the form of an enterprise agreement and it was substantial in its claims, yes.
PN2374
In relation to that meeting on 5 February you state that you were again just provided with that document, and this was after the scope order application had been filed?‑‑‑Can you refer me to which paragraph in my statement please?
PN2375
I can. But do you recall the meeting on 5 February 2015, Ms Garrott?‑‑‑I do.
PN2376
Yes, and you recall that that - we were just talking about that document of 8 December that was provided to you again on 5 February?‑‑‑I take your word that they were identical.
PN2377
Yes, I thought you gave evidence to say that they were?‑‑‑Yes. Yes.
PN2378
And I think you said, is that right, that again in that meeting there was just a rejection when you raised your offer of 15 December, and when you asked for a detailed response they just again - or I did on behalf of the SBU, I gave you the same document again?‑‑‑You did.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2379
Yes?‑‑‑And it was presented as I recollect, "You put this document out to a vote and you'll get a yes vote. We will support as a single bargaining unit this as being a good proposal and we will support this with a yes vote".
PN2380
And TasWater can't agree to that?‑‑‑That proposal of the 8th of December is - was presented as the best of the best with some additional claims on top of the best of the best. That proposal is outside the scope of the parameters in which TasWater can negotiate both financially and outside some of our business parameters, including job security. What is important of that 5th of December meeting is that that was a single general enterprise agreement that the single bargaining unit was presenting to us. This was after the scope application had been made to the Fair Work Commission and this was part of Commissioner McKenna's strong recommendations to us to meet and attempt our best resolution. So at that point to have re-presented a senior enterprise agreement in order to resolve the scope application - - -
PN2381
But that's not - - -?‑‑‑- - - was somewhat surprising.
PN2382
Ms Garrott, I thought you just agreed that the document was provided in response to you asking for a response, a detailed response to your offer of 15 December?‑‑‑It was provided to me as "TasWater you want this to" - effectively, "You want this to go away, here's your yes vote document".
PN2383
That's how you understood it. Look, then there was a meeting on 17 December?‑‑‑There was.
PN2384
And at that meeting the unions changed their position substantially, you'd agree, to no loss of conditions. Is that right? This is the meeting as well, Ms Garrott - - -?‑‑‑I - - -
PN2385
- - - you will recall where subsequent to the meeting a notice of concerns in relation to the scope was provided?‑‑‑Correct. Correct. Could you repeat the question, Mr Ash?
PN2386
Whether or not you would agree that at the meeting of 17 December the union significantly changed their positions from the best of the best plus a little bit extra to no loss of conditions?‑‑‑My recollection, rather than no loss of conditions it was about retaining current conditions of employment.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2387
Yes and can you explain then what you see as the difference between those two concepts?‑‑‑Loss of - for me the negotiations and the package we presented, which we believe was fair and reasonable for the vote in November, was about the give and take of bargaining. Some team members would achieve additional benefits in some areas, depending on what region they're in, and potentially see differences in other areas. But overall we believed that the team members were - across the state were fairly catered for. We spent a lot of time on ensuring that there was regional consideration. Indeed I recollect late into one evening prior to the 5th of September CEO meeting providing the CEO a breakdown of what our current proposal was and what that looked like for team members in each region. We had modified our positions as we have negotiated to cater for some, you know, regional concerns. I can give some examples of that. Redundancy provision, for example. Our original proposal was to have a maximum redundancy cap of 60 weeks for all staff, which is actually what is in the north and the north west, however there are 72 weeks in the south. By reducing the 60 weeks, the team members in the south of course were concerned so we listened to those concerns and we increased the redundancy to 72 weeks. I have - - -
PN2388
So that was back in September?‑‑‑I have that - I'm not sure when we did that.
PN2389
I think you referred to it being 5 September, or a late night. So would you agree that was around September that you - - -?‑‑‑No, what I was referring to, I wrote a briefing for the CEO.
PN2390
Yes?‑‑‑In preparation for him to attend the 5th of September meeting so he was aware of the regional differences in what our vote proposal document was. He wanted to be sure - we might not have fair in our values but I can tell you our CEO is fair. He wanted to ensure that team members across the state all had a fair and reasonable provision of terms and conditions of employment where they might find something greater in one area but something a bit different in another area.
PN2391
Something a bit different, Ms Garrott? So you referred to earlier these regional concerns. So you're talking about the CEO was made aware in your discussions with him and the briefing you provided of these regional concerns?‑‑‑They were not regional - - -
PN2392
These regional concerns have been there for most of these negotiations, haven't they?‑‑‑Mr Ash, these were not concerns.
PN2393
You referred to them as regional concerns, Ms Garrott?‑‑‑Right, okay. What I provided a briefing on was regional differences in our vote. So I had - this briefing paper was what TasWater proposes, what currently is in existence in the three enterprise agreements.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2394
So throughout the negotiations you were acutely aware of those regional differences?‑‑‑We were aware of them. We were conscious of them and we as part of our considerations of presenting a fair and reasonable package for the whole state, we balanced our proposal so team members across the state were - you know, were having no greater concern than another region for example.
PN2395
Okay, Ms Garrott, so when you refer to the broad parameters and in the broad parameters it states - it talks about a fair work environment. What does that mean?‑‑‑What document are you referring to, Mr Ash?
PN2396
So in the broad parameters. You've talked about the broad parameters?‑‑‑I have spoken about them, yes.
PN2397
And would you agree that part of those parameters there's a reference to a fair work environment?‑‑‑Are you referring to a document, Mr Ash?
PN2398
I'm referring to the broad parameters that you referred to throughout your statement?‑‑‑Yes. Yes.
PN2399
And in the evidence today?‑‑‑Yes.
PN2400
Do those parameters include or make reference to a fair work environment?‑‑‑Okay, I have not seen these broad parameters in writing. I have been given these broad parameters via communication from my general manager and they have been very clearly communicated to me.
PN2401
The question was whether or not within those broad parameters there's a reference to a fair work environment?‑‑‑I'm - the broad parameters as shared with me wouldn't have used the words fair work environment.
PN2402
Don't they talk about a fair and consistent set of terms and conditions?‑‑‑That is fair and - a fair and consistent set of terms and conditions, yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2403
So what are the fair conditions, Ms Garrott? Would they include an employee losing conditions?‑‑‑I refer back to the original negotiations when the three first set of water corporations came into play. This is where some team members had their conditions grandfathered for example. Is that fair? I would say yes. TasWater proposed early in the negotiations the prospect of some grandfathering of arrangements. We were open to what you present to me as fair and for example the adverse working conditions allowance which currently exists in the north west of the state, again we were open to grandfathering that arrangement or, at the preference of the team members, paying it out.
PN2404
But you were legally obliged to do so, weren't you, Ms Garrott? I referred earlier to the shareholders' letter of expectations in relation to the preservation of employment conditions?‑‑‑I can't comment on that letter because I don t have it in front of me.
PN2405
Sure. Why do - and this is in your evidence - differences in terms and conditions of employment such as currently exist cause an impediment to employees working from their normal place of work every day or being directed to work elsewhere temporarily with corresponding penalties and allowances for directing them? Why is that, which is currently the case, an impediment to the business?‑‑‑Our organisation is working towards One TasWater. One TasWater covers many aspects our business and our operations. We are striving to a single culture whereby team members are being trained on a statewide basis for safety, for our values and our behaviours. It's a statewide basis.
PN2406
So I'm referring to paragraph 27 of your statement where you refer to the subtly different arrangements and you talk about it being an impediment to working together on a truly statewide basis. What are you referring to when you refer to a truly statewide basis, Ms Garrott?‑‑‑Our managers are statewide managers. They are managing teams of people that have different terms and conditions of employment.
PN2407
So it's about the managers, Ms Garrott?‑‑‑No, it's not about the managers just. So some of the points that I pick up in my point - on my paragraph 27, subtly different classification arrangements. I mentioned pay point provisions are slightly different across the state. That is subtly different. Pay and allowance rates, I have mentioned adverse working conditions allowance, handling sewer matter allowance, it's different across the state, and the biggest one that is different across the state for our ops and maintenance employees is our on‑call arrangements.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2408
And they're the key claims of the unions, aren't they Ms Garrott?‑‑‑Those three are, yes, as well. So what is the impediment to TasWater? We are proceeding to operate on the three enterprise agreements at the moment. What does that mean for TasWater now? That we are not working towards One TasWater. This is not the objective of why we came together to be a One TasWater. It is a cultural change for TasWater to have one set of terms and conditions of employment. It is about our team members knowing that their peer down in the south of the state, if they're in the far north west, operates under the same terms and conditions of employment as they do. There is legacy from the many previous councils, 29 councils, and the three water corporations that we are trying to, although value and appreciate, bring together to have a holistic organisation and our people are understanding of that. All of our other work is towards TasWater, One TasWater. That is our safety imperatives. That is our organisational values. That is our cultural change program. It is our strategic objectives. It is working in every aspect of TasWater. For us to have three enterprise agreements is totally at odds with everything else that is One TasWater.
PN2409
And there was an 88 per cent no vote last year, wasn't there?‑‑‑There was.
PN2410
And have there been significant changes, particularly around the key claims, since then?‑‑‑Correct, there has.
PN2411
There has?‑‑‑Yes.
PN2412
Why won't you put out the agreement to vote?‑‑‑TasWater - well, firstly we have this scope application on foot and we don't believe it's appropriate to do so while there is a Fair Work Commission application in train. Secondly, we would like the support of our union colleagues in presenting the next agreement. We don't want to push out an agreement whereby the unions are not supportive of the document that we are presenting.
PN2413
So you won't agree to the claims that the unions say are what you need to get over the line and you won't put the agreement out until the unions agree?‑‑‑What we want to do, Mr Ash, is work with an efficient bargaining unit, that is a single bargaining unit, to work through the parameters that we can work within and get a document that is fair and reasonable to get it to a vote. What we have found challenging to date is that the unions have made no concessions. The unions are not demonstrating give and take in bargaining and by continuing to present in that manner, we're not able to get to a point that we can have a document that both the unions and TasWater can live with, which is the outcome we are working towards.
PN2414
But on the meeting of 17 December, Ms Garrott, the unions' position, which is the unions' position now, is no loss of conditions or preservation of existing entitlements. You'd agree with that? And prior to that it was best of the best plus a bit. Would you agree with that?‑‑‑That is correct. However what I do say, best of the best plus a bit - - -
PN2415
Isn't that a significant concession?‑‑‑Mr Ash, the three enterprise agreements is outside the parameters given to us by the board. It is not going to fill - fulfill the objectives of One TasWater.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2416
I refer you to paragraph 28 of your statement where there's a reference to a meeting that occurred on 1 November 2013, and you'd agree that in that meeting there was a discussion in relation to retaining existing regional conditions and a discussion around grandfathering? Ms Cuthbertson was also in that meeting? Do you agree with that or not, that those discussions, that was the content of the discussions on that date, part thereof?‑‑‑On the 28th - or, sorry, on the 1st of December 2013 the purpose of that meeting was to discuss the upcoming negotiations for the northern region enterprise agreement negotiations which was a rollover agreement.
PN2417
You don't agree that there was a discussion in that meeting about these current negotiations?‑‑‑There was reference, yes, as I put in my paragraph 28. There was a reference including "This will be challenging". Mr Gauld said "It will be challenging, and these are some of the things TasWater might like to consider include in grandfathering". We were quite, and remain quite open to considerations of small elements to be grandfathered such as the adverse working conditions allowance in the north west of the state.
PN2418
In paragraph 38 you refer to the ability of site-specific issues to be considered. What do you mean by that?‑‑‑Each part of TasWater, particularly our ops and maintenance division, has team members throughout the state, remote areas, Queenstown, Zeehan, far north west of Tasmania, so it is appropriate that there is regional representation. We acknowledged that the larger number of delegates in the room provided opportunity for those team members to share what the proposals we were presenting might mean for their work patterns or their operations of particular plants that they operated. That's site-specific issues.
PN2419
Okay. In paragraph 42 of your statement you refer to no loss of conditions being an unspecified claim. What do you mean by that, because you gave evidence earlier that you understood it to mean preservation of the existing regional conditions?‑‑‑This is the log of claims of the 7th of May and if you were to have a copy of that I could elaborate further. Is there a copy at the Bench?
PN2420
I'm sure I can get you one. Because you don't refer to the annexure in your statement, do you Ms Garrott?‑‑‑I don't believe I have a copy. Do I?
PN2421
UNIDENTIFIED SPEAKER: It's INO5. So it's in Ian's statement?‑‑‑Right. Up here? That's right. So that's item 27 on the document of the 7th of May which is the SBU's log of claims. "No loss of conditions" - I'll read from this document?
PN2422
MR ASH: Sure?‑‑‑Yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2423
The question is what do you mean when you say that no loss of conditions is an unspecified claim?‑‑‑There is no detail except:
PN2424
No individual will be disadvantaged through a move from an existing industrial instrument to the new TasWater enterprise agreements.
PN2425
And what is unclear about that, Ms Garrott?‑‑‑That is, is disadvantage measured on a line by line basis, Mr Ash? What is disadvantage to an individual? An individual may find advantage in particular clauses that we are offering more generous terms and conditions by in comparison. You might recall that there used to be a thing called the no disadvantage test which was a global test.
PN2426
So if the employees took home less pay would that be unfair?‑‑‑That individual - I can't make assumptions about an individual but - Mr Ash.
PN2427
No - - -?‑‑‑I mean, that individual may value the fact they're getting additional leave or additional redundancy or the fact that there is something else. I'm not sure why no pay - we're actually offering a generous pay increase.
PN2428
What about employees that previously wouldn't be able to be made redundant during the term of the agreement and now can be made redundant, or their position is made redundant?‑‑‑Those team members had under the northern region enterprise agreement that clause built in through negotiations due to a restructure that was planned in the 2011 year, and that restructure was specifically about a very small part of the organisation. It was part of the negotiations to include a job security clause due to that quite specific restructure of one small team.
PN2429
And so that wouldn't be unfair then, would it?‑‑‑I can't answer that question, Mr Ash.
PN2430
In paragraph 48 of your statement you refer to - you state you were supportive of the smaller meeting groups. Is that right?‑‑‑I was.
PN2431
And you thought that the larger groups were unproductive?‑‑‑They were chaotic.
PN2432
Chaotic? And you thought it better that those in the meeting that wanted to be there and had an interest in what was being discussed were there?‑‑‑Not just who had an interest but who had a level of expertise as well.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2433
It would normally be the case that those with the expertise would be those that would be directly affected by what was being discussed?‑‑‑I can't answer that.
PN2434
So at paragraph 69 of your statement you extract some submissions from the applicant in response to TasWater's application for bargaining orders, and you somehow connect them to scope. Is that correct, that extract at paragraph 69, you say that's about scope?‑‑‑What we say is that the CEPU by their own admission in response to the good faith bargaining application said that it appears that bargaining is progressing fairly and efficiently through that statement. So what I do associate to scope, Mr Ash - - -
PN2435
Sorry, can you refer where in that extract specifically do you rely on - - -?‑‑‑I took this to mean:
PN2436
In this case the respondents -
PN2437
then the CEPU:
PN2438
- are participating in negotiations with the objective of reaching an agreement. Have involved themselves in the process of give and take as evidenced through in-principle having been reached on a number of claims in the sub-group meetings and have recently been proposing that the representatives meet in the absence of such proposals from the applicant.
PN2439
So this is the part of the submissions, isn't it Ms Garrott, where the applicant is responding to the fact that it cannot be said that what they are doing is surface bargaining?‑‑‑I don't have the whole set of submissions in front of me, Mr Ash.
PN2440
But you would accept - I have it here if you'd like to have a look?‑‑‑I accept what you're saying.
PN2441
Yes. The final paragraph, you would agree, was:
PN2442
In those circumstances there's no substance to the allegation that the respondents are engaging in surface bargaining.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2443
So you'd agree what is there is nothing to do with scope, it was not a question of whether or not the bargaining was fair and efficient. The applicant was responding to an application alleging it wasn't meeting the good faith bargaining requirements, wouldn't you agree?‑‑‑What we say is that this dispute is about terms and conditions of employment and not about scope. So what we say is that the negotiations were progressing, albeit very slowly, however they weren't progressing to the satisfaction of the unions. That is, the best of the best was unaffordable and not acceptable to TasWater. Yes? So coming back to your question is this paragraph 69 about good faith bargaining and not about scope? My response to that is I believe what we are here about is about terms and conditions of employment and not about scope.
PN2444
So you think it appropriate to cherry-pick, what, one small part of the 50 page submission and say that means that the applicant thinks that bargaining is proceeding fairly and efficiently, and therefore no scope order should be made? Is that what you're suggesting?‑‑‑I'm not suggesting that, no.
PN2445
In relation to paragraph 76 you state that the unions did end up moving on some matters but not their key claims. Is that right?‑‑‑Could you repeat what paragraph are you referring to?
PN2446
Paragraph 76, Ms Garrott. So the question was you agree, as stated therein, that the unions did end up moving on some matters but not their key claims?‑‑‑My reference there is limited claim matters. That is the small, the - not the significant matters of importance, and if you would like me to elaborate I'm happy to refer to some of the meeting minutes.
PN2447
That's a - - -?‑‑‑So let us talk about what some of those matters might be.
PN2448
I don't want to, Ms Garrott?‑‑‑No? Okay.
PN2449
Do you stand by that paragraph - - -?‑‑‑So these are the small claim - - -
PN2450
- - - in your statement, Ms Garrott?‑‑‑I do.
PN2451
So would you agree then that they moved on some small matters but the key claims that there was no movement; there was no concession by the unions as to their key claims?‑‑‑There has been no concession by the unions as to their key claims and I'm actually racking my brains as to what limited claims - matters, being the small claim matters, the unions have moved on as well. And if you would like to refer back to the latest proposal, log of claims, of the 8th of December 2014 there has been no movement from the unions reverting back to that 8th of December document.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2452
8 December? But that was before 17 December where the unions told you that their position was no loss of conditions?‑‑‑Mm‑hm.
PN2453
Do you accept that that's the position, because that's what the unions are saying to you?‑‑‑Is no loss of conditions?
PN2454
Yes?‑‑‑I hear what the union is saying, yes.
PN2455
Okay, so whatever their claim was back on 8 December that doesn't matter, it has been superseded?‑‑‑By what?
PN2456
No loss of conditions?‑‑‑Right.
PN2457
You'd agree with that or not?‑‑‑Yes.
PN2458
In paragraph 78 you state that you couldn't resolve some claims because the unions would not make any concessions. Equally I put it to you that's because TasWater didn't make any concessions. Isn't that right?‑‑‑Not right.
PN2459
It's not right?‑‑‑May I share some of the concessions we have made?
PN2460
I'm talking - so we're talking about paragraph 78?‑‑‑Mm‑hm.
PN2461
In that meeting, and it's 7 August?‑‑‑Yes, and your question is has TasWater made concessions?
PN2462
No, my question was would you agree that where you state that the reason that progress wasn't able to be made was because the unions wouldn't make any concessions; equally the case that it was because TasWater wouldn't make any concessions to their claims?‑‑‑I reject that.
PN2463
So we're still in paragraph 78 I believe. You make reference to the HSM allowance being an unspecified claim. What do you mean by that?‑‑‑This claim was not presented to TasWater until September of 2014. Until that time all logs of claim by the unions were not specific on the HSM claim allowance. The reason being the unions were not able to articulate what they wanted for HSM and eventually they chose to get together a group of delegates for a separate meeting to articulate their claim for handling sewer matter, which did not come until September 2014.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2464
And so why was it an unspecified claim, Ms Garrott?‑‑‑Because the unions were not able to articulate it until September 2014, once they'd had their delegate meeting.
PN2465
Right. In relation to paragraph 82 of your statement you state that:
PN2466
Little progress was made because the unions would not make any concessions on their key claims.
PN2467
Is that right?‑‑‑That's what I state in paragraph 82, correct.
PN2468
I put it to you that it's equally the case that no progress was made because TasWater didn't make any concessions in relation to unions' key claims either?‑‑‑If you'll allow me a couple of moments I will get the meeting notes from the 28th of August 2014 and I will share with you the progress of that meeting and why we - - -
PN2469
Well the question I've asked, and you can have reference to those minutes and answer the question, which is that what I've put to you is that the reason that little progress was made was because TasWater would not concede to the union's key claims?‑‑‑Could you articulate what those key claims were?
PN2470
You've referred to, in that paragraph I've referred you to - - -?‑‑‑Yes.
PN2471
The unions not conceding on their key claims. I presume you know what key claims are?‑‑‑Mm‑hm.
PN2472
Your Honour, do you want to have a break in about 10 minutes?
PN2473
THE DEPUTY PRESIDENT: At your convenience in the next five minutes.
PN2474
MR ASH: Five minutes, yes.
PN2475
THE DEPUTY PRESIDENT: In the next five minutes, yes.
PN2476
MR ASH: Yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2477
THE DEPUTY PRESIDENT: At your convenience.
PN2478
MR ASH: All right.
PN2479
THE WITNESS: Okay, paragraph 82 refers specifically to adverse working conditions and dirt money allowances.
PN2480
MR ASH: Yes?‑‑‑Okay, those two I can talk to you in general terms about what TasWater was prepared to concede, and so for example adverse working conditions, we attempted to present multiple ways of approaching adverse working conditions allowance. The - from my memory the SBU's claim at that point was to extend the adverse working conditions allowance from where it currently exists only in the north west of the state to all team members working outdoors throughout the whole state. That allowance is approximately $1000 per annum and the unions' claim was to extend that for all team members. That by its nature was unaffordable to TasWater while providing the 2.8 per cent or the 2.5 - - -
PN2481
So you couldn't concede to it?‑‑‑We could not concede to it. However what we did propose was to deal with it for the people who are currently receiving it in the north west of the state. We attempted multiple times to find something that was appropriate to those who were currently receiving it, such as grandfathering it or if it is the preference of those team members, to have a generous payout provision.
PN2482
And that wasn't acceptable to the unions?‑‑‑No, it wasn't.
PN2483
And the original claim, that wasn't conceded to by TasWater?‑‑‑To extend the adverse working conditions allowance?
PN2484
Yes?‑‑‑Of $1000 to every outdoor worker across the state?
PN2485
Yes?‑‑‑TasWater was open to consider it, however with that the parameters of 3 per cent cost for the whole enterprise agreement would have then been swayed towards - sorry, we wouldn't have been able to provide the same fixed term wage increase as was originally proposed, because that $1000 cost per outdoor worker would have reduced the fixed wage increase from, for example, 2.5 per cent to 2.3 or 2.2 per cent. Now there would be - I'll say it - winners and losers out of that. The outdoor workers would be the winners. They get the thousand dollars. The losers would be the indoor workers who have their pay reduced from 2.5 to 2.2 per cent increase.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2486
And which regions does the adverse working conditions allowance currently apply?‑‑‑North west.
PN2487
North west, and so - - -?‑‑‑There's about 80 people in the north west who receive the adverse working conditions allowance.
PN2488
So they currently receive that allowance, so if negotiations were limited to that region you wouldn't really have to worry about 3 per cent of on-costs looking at adverse working conditions, would you, because that's what they're currently getting in that region?‑‑‑Our proposal was to grandfather that provision for those 80 people.
PN2489
When was that proposal - sorry, no, you mean not in these negotiations? Sorry, you're referring to previous negotiations that made that regional agreement?‑‑‑For these negotiations it was one of our proposals. It may well have been on the 28th of August. I can find in the break the notes of minutes where we did propose a couple of options for the general TasWater agreement, this proposed enterprise agreement, to cater for those who are currently receiving the adverse working conditions allowance in the north west of the state, including them continuing to receive that allowance. Or another proposal we made was those team members could have that allowance paid out in one lump sum at a very generous amount.
PN2490
Yes, I'm aware of that one.
PN2491
Your Honour, I'm about to move on so it may be convenient.
PN2492
THE DEPUTY PRESIDENT: We'll have a break. We'll resume at about 25 to.
SHORT ADJOURNMENT [11.24 AM]
RESUMED [11.40 AM]
PN2493
MR ASH: Ms Garrott, can I take you to paragraph 103 in your statement. You state that during the lockout, there were no concerns raised about geographical differences. Is that correct?‑‑‑My paragraph 130 - - -
PN2494
103, sorry?‑‑‑103, right. Correct. There was no mention of three enterprise agreements at that - - -
PN2495
Were there any discussions about on‑call provisions? It's 35 hours?‑‑‑Pardon?
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2496
35 hours of discussions?‑‑‑I would imagine there would have been extensive discussions about on‑call provisions.
PN2497
Any discussions about adverse working conditions allowance?‑‑‑I have no doubt there would have been discussions about adverse working conditions allowances.
PN2498
Any discussions about the job security provisions?‑‑‑Yes.
PN2499
Any discussions about the HSM allowance?‑‑‑There would have been, yes.
PN2500
The on‑call allowance, that's really only about Southern Water, isn't it? It's really the concern for them?‑‑‑Our understanding with the on‑call allowances is - there are different ways of approaching it across the three enterprise agreements. It depends which region you're in as to how you get remunerated for on‑call. TasWater's priority for on‑call is to have team members fairly remunerated for being ready for work and available to work while they're on call, and then to be paid for the work they perform. That's our priority. You say that it's of main concern to the south. I can't answer that.
PN2501
Adverse working conditions allowance, that only exists with Cradle Mountain Water? In that region?‑‑‑Adverse working conditions currently only applies to Cradle Mountain Water, yes.
PN2502
The main job security concerns, that's really only about Ben Lomond Water, isn't it?‑‑‑There is currently only a specific provision in the Ben Lomond Northern Region Enterprise Agreement, yes.
PN2503
Again, the HSM allowance, that's really only about Southern Water, isn't it?‑‑‑There is a handling sewer matter allowance for each region of the state and they are subtly different.
PN2504
So they're the key claims of the unions. There may be more but sorry, I'll rephrase that. They are all key claims for the unions. That's on‑call, adverse working conditions allowance, job security and HSM?‑‑‑In accordance with my paragraph 118, the CEPU identified job security, dispute resolution, outsourcing of work contractors, consultation, on‑call allowance, proposed shift work arrangements and redundancy clauses. On 1 December, Luke Crowley wrote to me with a list of 22 that did not include job security.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2505
Yes, and Mr Gauld responded to that email saying they were all die in the ditch issues. That's right, isn't it?‑‑‑I don't recollect that email.
PN2506
So they are key claims for the unions? That is, on‑call, adverse working conditions allowance, job security, HSM. They're all included in that list?‑‑‑And you're referring to the list of 1 December from Luke Crowley detailed in my paragraph 123?
PN2507
I'm referring to the list that you just referred to and what you understand generally to be key claims of the union. Maybe not exhaustive, but are on‑call, adverse conditions, job security, HSM allowance, key claims for the unions?‑‑‑I have heard them raised as such, yes.
PN2508
Are you saying you're not really aware of what are the key claims of the unions or not?‑‑‑Well, from my paragraph 123, we have 22 on that list without job security and, on 118, we received some advice from the CEPU via a notice sorry. I beg your pardon. We referred to a notice from the CEPU that identified some key claims, as well. We have been made verbally aware of what are die in the ditch, as you say. However, we continue in the past to have been presented alternate lists of what are key claims.
PN2509
They're the claims that the union will not concede to. They're not moving on those claims, are they?‑‑‑They haven't demonstrated they would to date.
PN2510
You think they should?‑‑‑We would like to negotiate with the unions within the parameters that TasWater has available to us to do what we can to make an agreement we can all live with, taking into account what the unions see as their main priorities. TasWater also surveyed our staff members to as a result of the no vote, we got an independent organisation called ORC to survey our staff members to ask them what the priorities are. This was as a consequence of the unions not providing their extensive feedback as promised.
PN2511
You said before that one of the issues maybe the main issue is that the unions just aren't bargaining within your parameters, are they?‑‑‑The unions have not demonstrated any give and take, nor any concessions throughout the negotiations.
PN2512
So you blame the unions for the stalemate?‑‑‑No.
PN2513
Who do you blame for the stalemate?‑‑‑There is no blame associated, Mr Ash.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2514
Your position, as you said before, is that negotiations can't really happen and certainly you can't put an agreement out to vote until this scope application is determined. Is that right?‑‑‑That is our position.
PN2515
Are you aware that the unions could still pursue three regional agreements even if this application is dismissed?‑‑‑I hadn't turned my mind to that, Mr Ash.
PN2516
At paragraph 106 of your statement, you say you were surprised that the unions said the proposed agreement to go out to ballot was unacceptable. Is that right? You were surprised that the unions said the proposed agreement was unacceptable?‑‑‑What I found surprising is prior to the lock‑in meeting, it was clearly communicated to the unions that it was our intent through that lock‑in meeting to finalise negotiations and TasWater, with our best intent with these negotiations, would reach an agreement that would be supported by the unions. That was surprising that Mr Crowley suggested the negotiation process would continue beyond the lock‑in period.
PN2517
So you were surprised that the proposed agreement following the lock‑in wasn't supported by the unions?‑‑‑That did not surprise me. What surprised me was the unions were not aware, or chose not to be, across the fact that TasWater would take this agreement to the vote post the lock‑in.
PN2518
But that's not what the unions were saying. The unions were saying that what you were taking to the vote was not going to get up. It was unacceptable to them and their members. Isn't that what they were saying? You refer in paragraph 104 to taking issue with some unions' bulletins that were issued during the lockdown. Is that right?‑‑‑My paragraph 106 - - -
PN2519
Sorry, I've just taken you back to 104, but it is in reference to 106. That is, that you were surprised by the unions' response in relation to the proposed enterprise agreement that went out to ballot following that meeting?‑‑‑What surprised me, Mr Ash, was not necessarily their not their response that they thought our package was unacceptable, but more the fact that they thought TasWater should not proceed to the vote, where we had always made it our intention to proceed to the vote post the five‑day lock‑in.
PN2520
And their reasons for saying that to you were that they said their members were just not going to vote in favour of it, so why put it out. What was the result of that vote?‑‑‑The general enterprise agreement?
PN2521
Yes?‑‑‑An approximate 88 per cent vote in the negative.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2522
I referred you to paragraph 104 where reference is made to these bulletins that were put out by the unions; by the SBU. You take issue with the bulletins. Those bulletins, they were critical of what TasWater wouldn't agree to and what they wanted to include, weren't they?‑‑‑And the question is?
PN2523
Whether or not those bulletins were critical of what TasWater wouldn't agree to and what TasWater wanted to include in their proposed enterprise agreement?‑‑‑As we went into the lockdown, Mr Ash, we agreed with the unions that the communications going out after each day of the lockdown was to be representative of the negotiations of the day, following from the good faith bargaining recommendations of Lee C. The question you ask, could you repeat it, please?
PN2524
The question was whether or not those bulletins were critical of what TasWater wouldn't agree to during those lockdown discussions and what they wanted to include in an enterprise agreement during those lockdown discussions. That's what those bulletins were about, weren't they?‑‑‑The bulletins vary in their tone through the lockdown period. Some of these bulletins were more positive and transparent, and other bulletins TasWater did not agree with the contents as being representation of the day's work.
PN2525
Before you answered in response to my question that the no vote was approximately 88 per cent no, so that's a very resounding no vote. Would you agree?‑‑‑Yes.
PN2526
What have you changed since then?‑‑‑I refer to our offer of 15 December.
PN2527
Yes?‑‑‑I will find that attachment now. That's attachment 37. The green components highlighted - - -
PN2528
I think we'll all just have - - -
PN2529
MR DILGER: There's no green. It's just the highlighted - - -
PN2530
MR ASH: We have black. It makes it hard to read, but we are familiar with this document?‑‑‑Okay. That would represent TasWater's latest proposal.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2531
Yes?‑‑‑This proposal was based upon the survey priorities from that independent survey that TasWater made with our staff directly. I do note that is a statistically significant survey which detailed the priorities for our team members and our re‑cut proposal was based upon addressing the highest priorities out of that survey.
PN2532
So this document, TW37, an annexure to your statement, they're the matters that you changed since the no vote? The ones that are highlighted?‑‑‑Yes.
PN2533
No changes on any of the key frames that were referred to earlier?‑‑‑One moment, please. I will check my notation. Yes, that is our revised offer post the no vote.
PN2534
The question was there are no changes on any of those key claims that we referred to earlier?‑‑‑Could you point me to one of those key claims?
PN2535
For example, job security?‑‑‑If you are talking about job security as a single clause, Mr Ash - - -
PN2536
Yes?‑‑‑No, no change from our original offer. However, TasWater believes we have addressed job security as a package of clauses, which includes increased redundancy, considerations of voluntary redundancy and other aspects which do address job security which are not contained in the singular job security clause.
PN2537
But where it states in the final column that TasWater is unable to move, they're the claims on which TasWater is unable to move?‑‑‑Correct.
PN2538
Those key claims we referred to earlier about they really are about favourable regional conditions, aren't they? Some you might think are probably a bit too good in some of the regions?‑‑‑Are you referring to the unions' key claims?
PN2539
Yes, I am?‑‑‑Which ones?
PN2540
We referred to some earlier, so those that are really about sort of favourable regional conditions?‑‑‑Could you give me - - -
PN2541
The adverse working conditions allowance, for example, in Cradle Mountain?‑‑‑Yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2542
And job security in Ben Lomond, for example. They're about particular favourable conditions that are in regions, aren't they?‑‑‑There are conditions across each of the regions that some individuals may find more favourable. There are other aspects. As I've spoken about, we believe it's a holistic package for each agreement as it is made at the time. It is very difficult to answer what does has individual value. We believe it is a global test. It is one that looks at the whole set of terms and conditions of employment, and, as we say, negotiating an enterprise agreement is about some give and some take.
PN2543
When I asked you earlier what about one of the employees taking home less than they were previously, you weren't able to really respond to that?‑‑‑Well, Mr Ash, I believe there are some team members who would value, potentially, things besides money. That is, additional - - -
PN2544
I put to you they would be very special?‑‑‑They would be very special. We're not proposing to reduce anyone's fixed pay - - -
PN2545
But your current proposed enterprise agreement does?‑‑‑How can you present that to me, because I can't answer that.
PN2546
You stated earlier that you're not willing at the moment to put out this offer this proposed enterprise agreement of 15 December to put it out to the vote at this time?‑‑‑While this scope application is on foot, we do not believe it's appropriate.
PN2547
If the scope order application is dismissed, you would then put it out to ballot?‑‑‑We would need to consider our position at that time.
PN2548
How are you intending on actually reaching an agreement?‑‑‑It is our intent to continue to bargain in good faith with the single bargaining unit. We do hope that we can work with the MEU and other bargaining representatives for each of our priorities to be addresses and for us to get an agreement that we can all live with.
PN2549
But there's a stalemate based on these favourable regional conditions?‑‑‑Mr Ash, as I said, post this scope application, we would consider our position and whether indeed our final position of 15 December, which is in attachment 37, is indeed what we would take out to a vote or whether we would look to modify that in any way.
PN2550
So your board parameters are going to change, are they?‑‑‑I can't answer that question.
PN2551
As it currently is, those broad parameters are in place?‑‑‑They are.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2552
They're an impediment to being able to reach an agreement. The unions want these expensive conditions maintained. 3 per cent doesn't do it. That's problematic, isn't it?‑‑‑I am not in a position to comment on the board's parameters, except to say I am aware in this current economic environment that a 3 per cent cost parameter is more than generous.
PN2553
The current economic environment. Okay. Are you aware whether or not TasWater made a profit last financial year?‑‑‑I'm not in a position to comment on that.
PN2554
Are you aware whether or not TasWater made a profit last year?‑‑‑TasWater worked within the parameters of our price and servicing plan, and delivered our obligations per the price and servicing plan which is controlled by the Tasmanian Economic Regulator.
PN2555
Are TasWater projected to make a profit this financial year?‑‑‑Again, our price and servicing plan provides where our funds are distributed, both for maintaining our assets, delivering a return to our shareholders and providing our customers a fair and reasonable billing system.
PN2556
So was that a yes?‑‑‑How do you define profit, Mr Ash?
PN2557
How do I define profit?‑‑‑We have a Tasmanian Economic Regulator that controls our industry and we return per the price and servicing plan within that, so - - -
PN2558
Okay. Was revenue more than the stuff you had to give out?‑‑‑I can't answer that question. I'm not aware.
PN2559
But then you do say that TasWater has financial constraints, in your statement?‑‑‑It does.
PN2560
At paragraph 118, you note the CEPU feedback - we referred to it earlier on the important issues?‑‑‑Yes.
PN2561
At paragraph 124, you state that you thought the scope reference was not about the general agreement. Is that right?‑‑‑Absolutely.
PN2562
You thought it was about the senior agreement?‑‑‑Correct.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2563
Hadn't you agreed to the senior agreement scope in October that year?‑‑‑To the best of my recollection, no.
PN2564
In paragraph 129, you say the unions presented you with an enterprise agreement that would be supported by employees. Is that right?‑‑‑Yes.
PN2565
At paragraph 134, are you saying there that the unions haven't moved on their claims at all?‑‑‑Paragraph 134?
PN2566
Yes. Sorry, that's an incorrect reference. I see that's one in relation to the Australian Electoral Commission. Can I ask that question more generally, Ms Garrott. Is it your position that the unions haven't really moved on their claims at all? That is, no give?‑‑‑That is my position and that is evidenced by the various logs of claims from the unions that we have received.
PN2567
You'd also say that they haven't, in principle, agreed to any of your main claims? No take?‑‑‑In general terms where our claims have not aligned, the SBU has not demonstrated give and take in the bargaining process. Hence, our good faith bargaining application of July.
PN2568
So you would say that they haven't moved on their claim, so there was no give. They haven't agreed on any of your claims, so there's no take. Is that right?‑‑‑Could you give that to me again?
PN2569
You just said that the unions haven't moved on their claims at all, so there's no give. They haven't agreed to any of your claims, so there's no take?‑‑‑At this point, Mr Ash, if I was to share with you how we got to our vote document, it is where TasWater was able to extend our offer; so that's how we got to the vote document. In the five‑day lock‑in, it was all about, "What more do you have to give TasWater? What more do you have to give?" That's how we got through those five days and to the end of the vote period.
PN2570
As we said before, it was a no vote. Wouldn't you agree the positions of the parties are just so far apart? They're very far apart?‑‑‑Mr Ash, we, through our 15 December proposal, have addressed the highest priorities of our staff as surveyed. That survey, if you would refer to it, details that consideration of pay and back pay was of very high priority to our people. We have addressed that in our latest proposal. Other aspects were of very high priority to our people, again surveyed independently and, in our 15 December proposal, we believe we have addressed many of those issues and feel more competent in the next document we take out having a greater level of support from our people. But, it is not just that; we want the support of their representatives, as well.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2571
Like I said before, you're a long way apart at this point in time, aren't you?‑‑‑The single bargaining unit and TasWater, we did we have narrowed, as you see from attachment 37, where we believe we are in agreement and where we are not. You can make your own assessment as to how far we are apart there.
PN2572
When we referred to that document, we referred to the final column that contained whether or not there was an inability to move or not?‑‑‑Mr Ash, not all agreements need to have every clause agreed. There is, with all agreements, often an agreement to disagree on some particular clauses. It's about the holistic package. Can we live with it? We didn't get what we wanted there; we did get what we wanted there. Are we unable to move on that one? Yes. Are they, being the bargaining parties, able to? Yes. But it's about a holistic package that we are all able to live with.
PN2573
No. I put it to you it's about 51 per cent?‑‑‑And, again - - -
PN2574
How are you going to get there?‑‑‑We believe our latest proposal of 15 December has addressed the major concerns of our staff as surveyed and our proposal would be to re‑present a package a fair, reasonable, equitable package back to our staff for their consideration. As you say, it's about 51 per cent.
PN2575
Why aren't you doing that now?‑‑‑As I've stated before, Mr Ash, we do not believe it's appropriate while this scope application is on foot.
PN2576
But you wouldn't disagree that there was nothing stopping you. There's no reason why an employer can't put out an agreement to ballot while some sort of scope order proceedings are on foot. If the agreement gets voted up, it gets voted up?‑‑‑We believe it is not appropriate. It is somewhat disrespectful of this application being considered by the Fair Work Commission. There are multiple reasons.
PN2577
It's really that you don't think the agreement will get voted up, isn't it?‑‑‑I choose not to answer that question, Mr Ash.
PN2578
Paragraph 140 in your statement. What were these questions that you say are about employees' value? This is at the meeting on 17 December where, prior to the formal notification of filing a scope order, there were some questions asked of you. What do you mean about the assumptions about individual employees' value?‑‑‑Sure. This is where I cannot walk in the shoes of an individual employee and consider whether, for example, additional redundancy is more valuable than - - -
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2579
Not being made redundant?‑‑‑ - - - another sort of allowance. It is actually about an individual, as to what they value, and I can't make those assumptions. My recollection I have a clear recollection of that meeting. Mr Lambert was saying to me, "So can you tell me, Alex, that this person would, you know, feel that they're no worse off?" "I can't answer that question, Todd." I come back to it: TasWater's proposal is a global package. It is where there are swings and roundabouts. We have carefully considered the balance across the regions of what we have proposed; that no region would be in any way lesser or greater with their terms and conditions of employment, but there will be different. It has been very careful consideration throughout this whole enterprise agreement negotiations.
PN2580
So you're talking about being able to compare allowances and conditions - - -?‑‑‑Apples and oranges.
PN2581
Aren't most of the conditions we're talking about, monetary?‑‑‑Not at all. Leave provisions, for example. We have increased community service leave. We have provided the payout of annual leave provisions. We have increased multiple non‑monetary provisions that can only be accessed in certain circumstances. It is only that individual who has insight into their certain circumstances that can value it.
PN2582
At paragraph 142 of your statement, you state that:
PN2583
The unions' claims were about raising employees to the more favourable conditions which differed in the three regional agreements.
PN2584
Is that right?‑‑‑Paragraph 142?
PN2585
Yes. Towards the end?‑‑‑Yes. The best of the best, plus a little bit more had been all that had been discussed in terms of one general enterprise agreement up until that meeting of 17 December. Until that date, from the commencement of bargaining, there had been no reference by the unions to three enterprise agreements. It is a very late stage, 17 December, bargaining for the best part of nine months, to raise the fact that there is desire for three enterprise agreements. This was not raised at the notification of employee representational rights. There had been every opportunity for a nine‑month period for the unions to raise these concerns.
PN2586
You state in there that it was about
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2587
employees being raised at the highest level of entitlement in each of the three regional agreements.
PN2588
Hasn't it always been about those regional agreements and their conditions?‑‑‑They have been used as a reference point by the unions to determine what is the best of the best.
PN2589
At paragraphs 158 and 159 of your statement, you talk about the small without prejudice meetings that occurred?‑‑‑157 and 158?
PN2590
Without going into the detail, they were about, you know, what is required from the unions' perspective and getting agreement up?‑‑‑Yes.
PN2591
Agreement couldn't be reached in those meetings?‑‑‑Correct.
PN2592
At paragraph 160 of your statement, isn't that just evidence as to why the current approach hasn't worked?‑‑‑No, that's evidence of how much time I've expended.
PN2593
At paragraph 161, isn't the point though that no progress has really been made at all?‑‑‑In my experience, enterprise agreement negotiations can go for more than a year. We know that the Ben Lomond Water Enterprise Agreement went for a year and four months. That is not exceptional, in my experience. The question you're asking is are these sorry, let me ask you what is your question, Mr Ash?
PN2594
I think you, in part, have answered it. You earlier gave evidence that there is a cost to these negotiations?‑‑‑There certainly is.
PN2595
You also gave evidence that it would be in TasWater's interests for an agreement to be reached sooner rather than later?‑‑‑Of course. However, we are also realistic that sometimes enterprise agreements do take a long time and we have, within our organisation, an appreciation that we need to get the right enterprise agreement for us as an organisation, the right one for our people, and if that takes an amount of time that is longer than average, we are in for the long haul.
PN2596
You referred to your experience with enterprise agreement negotiations. What is your experience with enterprise agreement negotiations?‑‑‑I was formerly a workplace relations adviser with the ACT and Region Chamber of Commerce, where one of my main roles was negotiating enterprise agreements. I have, I would say, in my career negotiated nine or 10 enterprise agreements.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2597
Would it surprise you that Mr Flanagan gave evidence yesterday or the day before that he has negotiated around about 200 enterprise agreements and would it surprise you that Mr Flanagan's evidence was that in the up to 200 enterprise agreements he has negotiated, he has never negotiated an agreement as bad as this?‑‑‑(No audible reply)
PN2598
What he is referring to and I'll ask you this question is that he gave evidence that the progress was slow and then nonexistent. Would you agree with that?‑‑‑There were phases in negotiations where we did make movement. There were some periods where, particularly in the small negotiating groups, we made good progress. There were other meetings, particularly in the larger groups, we made negligible progress. Hence, it was our desire to continue negotiations with a smaller group of people because we were able to make decent progress through those negotiations.
PN2599
You just gave evidence that there were two meetings in March this year in very small groups, where what was put to you was the minimum that the unions would support and you said agreement couldn't be reached. Is that correct?‑‑‑When the small group negotiations went back to the large group, where we had - - -
PN2600
No, sorry - - -?‑‑‑Where we had received in‑principle agreement in a small group, the larger group effectively reneged on what we had believed we had got in an in‑principle agreement in the smaller group.
PN2601
Sorry, I was actually referring to those meetings that occurred this year involving myself, Trevor Gauld, yourself and your representative that we spoke about earlier, about that being put to you as the minimum - without going into the detail - and agreement wasn't able to be reached?‑‑‑That was representing the CEPU. Correct?
PN2602
I don't want to go into the details of that meeting, but I put it to you that what was put in that meeting was that this is what it would take for all of the unions - for the agreement to be voted up. Do you disagree with that?‑‑‑You did present a package which you and Mr Gauld said if we, TasWater, was able to agree to this package, then that package would be supported by the CEPU. I do not recollect reference to the other six unions, nor the other bargaining representatives.
PN2603
Very well. Is the CEPU, membershipwise, the largest union involved in these negotiations?‑‑‑In terms of membership?
PN2604
Yes?‑‑‑Yes.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2605
Was there any suggestion that Professionals Australia may also have a similar position to the CEPU in what was put?‑‑‑To the best of my recollection, I don't recall and I don't recall.
PN2606
In relation to paragraph 168 of your statement, just to be clear, are you saying that I think we discussed this earlier, but you're saying that some employees would see a reduction in their take‑home pay on your current proposal. Is that what you're saying?‑‑‑My clause 168 states that a particular entitlement might reduce under a new enterprise agreement, while others increase.
PN2607
Okay?‑‑‑And this is where I refer back to our careful consideration of the three regional enterprise agreements whereby there is a fair balance of increases and reductions.
PN2608
I'm about to move on to your reply statement and ask you some questions about that, but, before we do that, how would you describe your working relationship with Todd Lambert?‑‑‑Open.
PN2609
Is there any personal acrimony?‑‑‑No.
PN2610
How would you describe your working relationship with Luke Crowley?‑‑‑The same.
PN2611
In relation to your reply statement, Ms Garrott, at paragraph 12, you stated there was inconsistency and contradiction amongst the unions in these negotiations. Is that correct?‑‑‑They are not my exact words in paragraph 12. I think I said
PN2612
seemed not to understand their own log of claims and openly disagreed with logs of claims positions.
PN2613
There you are referring to the different union representatives?‑‑‑Correct.
PN2614
So there was some difference of view or opinion amongst those different representatives?‑‑‑Yes. There appeared to be some confusion about what was the most current logs of claim between the unions and that's demonstrated by Ms Ruby Thomas‑Thompson agreeing to email the most recent log of claims. I think that was on 28 August. So we actually had team members who had old versions of logs of claims in front of them and referring to that, as well as delegates who had more recent versions, as well.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2615
You're aware, aren't you, that some unions because of the regional differences and membership coverages, are more interested in some claims than others?‑‑‑Yes.
PN2616
In relation to paragraph 13, you extract an email. I put to you that that email is all about scope, than the significant challenges in consolidating the regional agreements, isn't it? That's all it is about?‑‑‑To me, that reads it's about the best of the best; that no individual would lose any entitlements.
PN2617
In relation to paragraph 24 of your reply statement, you refer to the TasWater pie?‑‑‑Yes.
PN2618
And you state that it puts the claims of the unions in conflict. Is that right?‑‑‑In conflict with what, Mr Ash?
PN2619
Your TasWater pie is 3 per cent?‑‑‑Correct.
PN2620
Some unions, as you gave evidence before, are only interested in particular things and they want to keep those things. That has got to cost. If another union wants to keep that thing, that has got to cost. Those two costs together are over 3 per cent?‑‑‑Simplistically, yes.
PN2621
Would you agree with that sort of - - -?‑‑‑Simplistically.
PN2622
Simplistically?‑‑‑So what TasWater's proposal was, was to adjust other aspects of the enterprise agreement to keep it within the 3 per cent parameters. That is, whether we adjust the fixed wage increase downwards from 2.8 per cent to cater for the priority items of the unions. This was our discussions and this pie got a bit of a workout in the negotiation rooms, as you'd appreciate. So it was about, "We want to hear your priorities. Let us start to talk about what is fair and reasonable across all divisions of the organisation." I gave an example that adverse working conditions would benefit the outdoor workers, but not the indoor workers in terms of what that might have done to fix wage increase. We have always been open to negotiations about changing the make‑up of how this 3 per cent could be reached. Whether it's yes.
PN2623
Why wouldn't you just say no to the small group and throw the money at the big group, and get it voted up?‑‑‑We believe it is fair and reasonable to cater for the to consider carefully the whole workforce.
PN2624
But you could do that, couldn't you?‑‑‑By doing what, Mr Ash?
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2625
You could say no to a small group in relation to their costly claim and say yes to the larger group in relation to their costly claim, so long as it's within your board parameters, and you can get the agreement voted up?‑‑‑Mr Ash, that's not how we roll. We take careful consideration of all our work groups, whether it is a regional work group, whether it's a divisional work group. We are careful in profiling our workforce to ensure the offer we put out there is fair, reasonable and equitable.
PN2626
So how are you going to reach an agreement?‑‑‑51 per cent, I thought.
PN2627
Good answer. I think you just gave evidence earlier and I don't think you disagree with this that if a particular union or the unions in general want to maintain regional conditions, other conditions would have to give. Is that right? Such as wages?‑‑‑It depends what claim is being sought, as to whether there is a financial or cost imperative, that would mean something needs to give.
PN2628
I have no further questions, your Honour.
PN2629
THE DEPUTY PRESIDENT: Ms Garrott, on that last question, I understand the position if a favourable reasonable condition were sought to be extended across the entire TasWater workforce, that would come as an additional cost. I understand your position in relation to the TasWater pie. That would mean if it happened, it would need to compromise something else. If that existing condition was limited to the existing employees who enjoy it, is there an additional cost?‑‑‑If I can just refer again to the adverse working conditions allowance.
PN2630
Yes?‑‑‑Which only applies to 80 of our outdoor workforce in the north‑western state. Our outdoor workforce is approximately 500 across the state or 600 across the state. If we were to extend on those 80 to 500, it's an additional $420,000 per annum for the cost. So our proposal for the adverse working conditions was to actually maintain it and grandfather it for those individuals that currently enjoy it, which is those 80, and yet not extend it to the whole workforce. Therefore, not affecting the 3 per cent parameters in which we are operating, because that is currently a staple cost. That is actually not even accounted for in that 3 per cent, because there is no cost increase by those 80 individuals keeping that adverse working conditions allowance.
*** ALEXANDRA JANE GARROTT XXN MR ASH
PN2631
Yes. I don't want to get into the detail of it too much, but you used the term "grandfathering". I understand your proposal was in fact to pay it out rather than grandfather it?‑‑‑We explored multiple options, particularly with one union that is based in the north‑west of the state. My understanding is the CEPU has no north‑west region members. There is one union that has more members in the north‑west of the state and I engaged particularly with that union to explore some options. I actually went into their offices to talk specifically about this. Their proposal to me was, "What about consider offering a very generous lump sum which is potentially more attractive than them retaining it." Likewise, for TasWater. That is more attractive for us because that is then done and dusted, as well. So we actually went through a number of iterations of how we would address this, but none of them I beg your pardon, all of them catered for the fact that those team members in the north‑west currently enjoyed it and they would have some compensation either one‑off or continuing.
PN2632
Mr Ash, do you want to cross on those couple of questions?
PN2633
MR ASH: Perhaps a question on the first part of his Honour's question, which is that if the regionally based conditions were maintained, would there be any additional cost? We're talking about what your cost structure is currently for all those different regional based conditions. If they were to stay, is there additional cost? I think you said yes, but I'm just not sure what you said?‑‑‑There would be no additional cost, but it does not meet the parameters - - -
PN2634
In relation to there not being a second statewide agreement?‑‑‑Your specific question is about cost.
PN2635
Yes?‑‑‑Indeed, less cost, because there's no pay increase being applied.
Nothing further, your Honour.
RE-EXAMINATION BY MR DILGER [12.35 PM]
PN2637
MR DILGER: Just flowing on from that, that's the reality, isn't it? If everyone retains the same terms and conditions, you still couldn't get the 2.8 wage per cent increase?‑‑‑Correct.
PN2638
In fact if everyone were to retain the same terms and conditions, they couldn't get any increase that would take them over 3 per cent. That's the parameter?‑‑‑The parameter that I have is one enterprise agreement with a 3 per cent cost parameter. I haven't even gone anywhere near three enterprise agreements.
PN2639
No?‑‑‑Yes.
PN2640
But if everyone were to retain the same terms and conditions, that 2.8 per cent increase at the moment, would that still be able to be made?‑‑‑No.
*** ALEXANDRA JANE GARROTT RXN MR DILGER
PN2641
MR ASH: Will that be the last leading question?
PN2642
MR DILGER: You've referred earlier to you say you wouldn't put out the EA to a vote whilst this application was on foot, but what would happen if negotiations were to achieve an in‑principle agreement?‑‑‑TasWater would consider it good for our organisational culture, good for our industrial relations, and we'd put it out to a vote with the endorsement of the bargaining parties and the unions.
PN2643
I'll just guide you through you can pull me up, your Honour, if I'm overstepping the mark, or I'm sure Mr Ash will, but the understanding was there was the meeting on the 4th where there was the first set of terms and conditions in an enterprise agreement. 4 December 2014?‑‑‑Yes.
PN2644
That was put to you and then it was amended by Mr Crowley on 8 December. He sent you through the Word document and there were 14 new items?‑‑‑Yes.
PN2645
That eventually then caused your 15 December response to be created?‑‑‑Yes.
PN2646
The bargaining strategy at that stage was known as the best of the best, plus a little bit more?‑‑‑Correct.
PN2647
Then we got up to 17 December, and then it became no loss of conditions or retention of existing conditions?‑‑‑Correct.
PN2648
MR ASH: It's a submission.
PN2649
MR DILGER: No, I'm getting to the point. It's a question, your Honour.
PN2650
Then we get to 5 February 2015, when Mr Ash represents the same document that had been presented on 8 December. What was the bargaining strategy then?‑‑‑It was a take it or leave it bargaining strategy. With this document, the union would support a yes vote and promote this as a good document to the TasWater people.
PN2651
MR ASH: Your Honour, the evidence was that it was in response to the offer of 15 December as a detailed response.
*** ALEXANDRA JANE GARROTT RXN MR DILGER
PN2652
THE DEPUTY PRESIDENT: I'm interested in Ms Garrott's answer. I'll allow it. If she wishes to elaborate at all, do so, please?‑‑‑So my recollection of that meeting of 5 February was I'm awaiting the response from 15 December. There was a number of emails that I sent through to the single bargaining unit, "Still waiting on our response. Still waiting on your response, please." In that meeting, as I mentioned earlier, it was as a result of the scope application and then McKenna C recommending the parties give it another go before we proceed any further through the scope application process. I again asked potentially at the start of the meeting for a response to our 15 December proposal and the presentation was the 8 December document. Correct, that was the response. I said, "Okay, so shall we start negotiating on this?" and it was, "No, this is a package. It's a take it or leave it."
PN2653
MR DILGER: Mr Ash took you back to the issuing of the notice of employee representational rights. That was the administrative requirements to comply with the Act. When did bargaining actually commence? I think the document is TW02?‑‑‑Thank you. We had an initial logistics meeting to talk about meeting arrangements on 9 April. I would not call that a bargaining meeting.
PN2654
Okay?‑‑‑7 May was where the logs of claims were presented. I would call that a bargaining meeting.
PN2655
So there is a gap of about three months where you just do nothing?‑‑‑From what date, Mr Dilger?
PN2656
From the issuing of the notice of employee representational rights?‑‑‑Correct.
PN2657
There was a document that you - - -?‑‑‑Actually if I can correct that. TasWater was actively preparing our proposals in anticipation of the first bargaining meeting.
PN2658
Mr Ash referred to a document that you didn't recall. Perhaps I can just refresh your memory, in terms of when the regional parties had to be transferred to TasWater, that was done by a compulsory transfer by legislation?‑‑‑Correct.
PN2659
MR ASH: That's just leading.
PN2660
MR DILGER: Well, I think it just provides the context. I don't think that is actually - - -
PN2661
THE DEPUTY PRESIDENT: No, I'm content with that. I don't think it's a serious issue. Please continue.
*** ALEXANDRA JANE GARROTT RXN MR DILGER
PN2662
MR DILGER: Do you recall what the requirements were of that transfer notice? When you transferred those people from their old organisation to the new organisation, what did that require you to do?‑‑‑From the former three water corporations to TasWater?
PN2663
Yes?‑‑‑Administratively?
PN2664
More in terms of wages and conditions?‑‑‑The enterprise agreements are transitional instruments. Therefore, the individuals that had those instruments applying to them at the time of transfer, had those terms and conditions applied upon transfer to TasWater.
PN2665
Thank you. That's it, your Honour.
THE DEPUTY PRESIDENT: Thank you, Ms Garrott. You're excused.
<THE WITNESS WITHDREW [12.43 PM]
PN2667
THE DEPUTY PRESIDENT: Is this a convenient time for a break?
PN2668
MR ASH: It is, your Honour. Might I just have a discussion about - I did expect I'd be about an hour and a half with Ms Garrott, but it ended up being around two and a half. I'll be less with Mr Nelson. I expect an hour to an hour and a half. Then we need to provide closing submissions. After the closing of that evidence, we would appreciate an adjournment to finalise those closing submissions; a very brief one.
PN2669
THE DEPUTY PRESIDENT: Can we go off the record.
OFF THE RECORD [12.44 PM]
RESUMED [1.31 PM]
ON THE RECORD [1.31 PM]
PN2670
THE DEPUTY PRESIDENT: Please be seated. Are you right to go?
MR DILGER: Calling Ian Nelson.
<IAN ANDREW NELSON, AFFIRMED [1.31 PM]
*** ALEXANDRA JANE GARROTT RXN MR DILGER
EXAMINATION-IN-CHIEF BY MR DILGER [1.31 PM]
PN2672
MR DILGER: Mr Nelson, you provided two statements for these proceedings, one on 27 March and one on 17 April. Have you read those statements recently?‑‑‑Yes I have.
PN2673
Are there any amendments you d like to make to any of those statements, or corrections?‑‑‑I would like to make four amendments if that s possible? They all relate to dates. The amendments are all the same, at paragraphs 80, 81 and 86 of my original statement, and at paragraph - - -
PN2674
Hold on, we re just going to go through then. So, on 80?‑‑‑80, 81 and 86. The amendments are a correction from 15 December 2015 to 11 December.
PN2675
On 80, it says On 17 December, meeting the SBU would not provide feedback on TasWater s revised position as provided to then by Ms Garrott on 11 December 2014 ?‑‑‑Correct. There wasn t a meeting on 15 December, that was the date that the SBU caucused.
PN2676
THE DEPUTY PRESIDENT: So 17 stands?‑‑‑Yes. So that amendment is to paragraph 80, 81 and 86. On my reply statement, the same amendment at paragraph 34.
PN2677
MR DILGER: Pretty sure about that being correct Mr - the document that the parties have all been working to, which is the revised position on TW on 15 December is TW37?‑‑‑I m not sure, I haven t got that in front of me.
PN2678
I ll bring it over to you. That s the document everyone s been working on, TW37. Actually, it says Monday 15 December. Is that the document you are referring to?‑‑‑No.
PN2679
No?‑‑‑I don t think so. Where in my statement are you drawing that from?
PN2680
I m not drawing that from your statement, that s everyone has been previously been referring to that document as TW37 is Ms Garrott s revised position. Is that what you re referring to?‑‑‑Okay, yes, sorry, it is what I m referring to. So maybe I ve got the date wrong. Maybe it should be the 15th.
*** IAN ANDREW NELSON XN MR DILGER
PN2681
So the correction?‑‑‑Yes, what I was referring to was that there wasn t a meeting on 15 December. The meetings were on 11th and 17th. Any other correspondence relating to the 15th still stands.
PN2682
Thank you. So, to the best of your knowledge and belief, is your statement now accurate?‑‑‑Yes, it is.
PN2683
No further questions for Mr Nelson. Thanks, your Honour.
PN2684
THE DEPUTY PRESIDENT: Just so I m clear on that, so are we amending it? Are we making those amendments or not?‑‑‑Your Honour, at paragraph 80 of my original statement, On 17 December 2014 meeting the SBU would not provide feedback on TasWater s revised position as provided to then by... that 15 December in paragraph 80 should remain.
PN2685
So there is no change?‑‑‑No change to that one. Sorry, paragraph 81 should stay as 15 December. 86 is 15 December. I ll just check the last one. Sorry, I misread those as meetings and paragraph 34. So sorry, all those corrections.
PN2686
So there s no change?‑‑‑ There s no change, sorry.
I ll mark your witness statement as Ian Nelson dated 27 March 2015 together with annexures as exhibit IN.
EXHIBIT #IN WITNESS STATEMENT OF IAN NELSON WITH ANNEXURES DATED 27/03/2015
The in reply statement will be exhibit INR.
EXHIBIT #INR IN REPLY STATEMENT OF IAN NELSON
PN2689
MR DILGER: Thank you, your Honour.
PN2690
THE DEPUTY PRESIDENT: Mr Ash?
PN2691
MR ASH: Your Honour, I have no objections to the evidence. I m assuming from what was discussed previously that there is no need for me to put those on record or go into it in detail, that these are going to be matters of weight.
*** IAN ANDREW NELSON XN MR DILGER
PN2692
THE DEPUTY PRESIDENT: I think it s highly likely Mr Ash.
PN2693
MR ASH: I just make the comment that there s quite a bit of evidence in our contention that is opinion evidence or not relevant.
PN2694
THE DEPUTY PRESIDENT: Without jumping the gun, I suspect my response will be the same as it was in relation to Ms Garrott s.
PN2695
MR ASH: I won t go through those objections, your Honour.
PN2696
Mr Nelson, if I take you to paragraph 28 of your statement?‑‑‑Yes.
PN2697
You state that you do not recall issues in relation to regional differences, is that correct?‑‑‑Correct.
PN2698
At paragraph 29 you state that regional differences were discussed at that meeting?‑‑‑They were in the context of identifying where the SBU claims lie.
PN2699
In relation to paragraph 30 of your statement, how were the small meeting groups more effective?‑‑‑For some of those meeting groups, the numbers were less and in the early small groups, the people there were attending, or the bargaining representatives were attending because they had either some knowledge of those particular terms or an interest in seeing them resolved in a particular way.
PN2700
How long did the small meeting groups operate for?‑‑‑They operated in a couple of different ways. I think they operated over about a three week period. The first two weeks, if I recall correctly, were small concurrent groups, so two groups meeting simultaneously in the morning, two in the afternoon. Then the last round that I recall were a morning group and an afternoon group, to focus on particular topic areas.
PN2701
You stated that they only occurred for a three week period. Why is that?‑‑‑Because the SBU decided for whatever reason, that they didn t think they were effective.
PN2702
They didn t think they were effective?‑‑‑No.
*** IAN ANDREW NELSON XN MR DILGER
PN2703
Were the matters discussed in the small meeting groups brought back to the larger group?‑‑‑No, not in a formal context that I recall. The issues we were working through at that stage was trying to get through all of the topic areas that we had identified. But the SBU was quite clear at the start, that from their perspective, those issues would need to go back to the larger group to be ratified and from our perspective we held the same view because we obviously needed to refer some issues back through the management structure at TasWater.
PN2704
On both sides, decisions couldn t be made in those small groups. Is that correct?‑‑‑They could be in principle, and from our point of view for TasWater, for those issues that we had instructions for where we were bargaining and we were still within the boundaries of those instructions, we could make decisions. If the negotiation went outside of those boundaries, we would continue it on that basis with a clear identifier that we were outside of our instructions and needed to take any alternative proposal back to the management team.
PN2705
When the in principle agreement or otherwise is brought back to the larger meeting group, the unions for example, wouldn t agree?‑‑‑No, sorry, maybe you don t understand me clearly, but from what I understood was happening on the SBU side was that a small working group may - the SBU representatives in that group would need to take any proposal back to the SBU. The would caucus on that separately and then if necessary, those matters would be brought up in the larger group if they were unable to be agreed. So, in effect, if the SBU as a whole said no, we don t agree to what you ve negotiated, then it would go back to the larger group. If it was agreed, it didn t need to go any further. It was marked as agreed in principle.
PN2706
In relation to these small meeting groups on the - at paragraph 31, you say that progress was made, but what progress was made on what claims?‑‑‑This is the meeting on 19 June?
PN2707
Yes?‑‑‑So the agreements in principle that were made on that day were temporary employment provisions, probationary employment, reimbursement of expenses, notice of termination, summary termination, items deliverable to the employer after termination or before termination, sorry, payment of wages and some of the superannuation clauses, but not all of them.
PN2708
So progress was made on those claims, is that your evidence?‑‑‑That s right, so within the small working group the people who attended that working group, agreed in principle that those things were okay to proceed. That obviously needed to go back to the SBU as a whole for them to review and TasWater. From TasWater s perspective, we were comfortable where we landed on those issues.
*** IAN ANDREW NELSON XN MR DILGER
PN2709
Why do you say these small meeting arrangements didn t proceed past the three weeks that they went for?‑‑‑Because the SBU had decided that they weren t effective and that they wanted to proceed on a different basis.
PN2710
The unions thought that they weren t effective?‑‑‑Yes.
PN2711
You thought they effective?‑‑‑I thought they were effective in getting to - for two reasons. One is that they were able to identify reasonably quickly where we agreed and where we disagreed on a particular term and on some of those claims we were able to actually progress that to terms that we thought could be agreed and that was more effective than doing it in a room with 20 or 30 people because it was a bit more focused.
PN2712
Do you know why the unions thought it wasn t - why they wanted?‑‑‑No.
PN2713
No idea?‑‑‑I only have an opinion about that. I haven t been told by the SBU why it wasn t the case. My recollection is that they simply sought to change the arrangements on the basis that they viewed them as ineffective and that was as much as we knew.
PN2714
So it wasn t the case that when the things that had been discussed in the small groups were brought back to the main negotiation table, that they were no longer agreed, or there were differences amongst the unions about what was agreed and whether it should have been agreed?‑‑‑No, what I m saying to you is that the small meeting groups occurred. That the SBU at some point in time had caucused and decided that it wasn t happy with the way that was progressing and decided to change it. At no point did the agreed in principle items come back to the group as a whole and were signed off finally. What actually transpired was at later meetings that did occur, but it wasn t immediately on the back of the small working groups.
PN2715
At paragraph 35 in your first statement, there are all references to, you refer to there being a brief discussion, so you say as you recall Mr Harkins specifically identified the dispute resolution clause after a brief discussion, the meeting was terminated. What was the brief discussion before this meeting being terminated?‑‑‑The brief discussion was in two parts. Ms Garrott asked Mr Harkins whether he intended to press his amended agenda and when he said that he did, Ms Garrott read some emails to the meeting that had transpired in the days earlier and on the basis that the SBU wasn t prepared to stay with the original agenda, terminated the meeting at that point.
PN2716
What did the SBU want to discuss?‑‑‑Just the dispute resolution clause.
*** IAN ANDREW NELSON XN MR DILGER
PN2717
Right?‑‑‑So the background was that there had been an agenda agreed the week before. The SBU unilaterally decided that that wasn t acceptable during the course of the week, sought to change it. We said no, we ve prepared for the agenda that was previously agreed and we want to stick with that.
PN2718
Is it fair to say that the unions sought to change the agenda to discuss what they wanted to in that meeting?‑‑‑Correct.
PN2719
That wasn t acceptable to TasWater?‑‑‑No, because we had prepared for a different discussion.
PN2720
TasWater left those discussion. In relation to paragraph 50 of your statement?‑‑‑Yes.
PN2721
What were the suggested options that were put forward by TasWater?‑‑‑If I could just read the paragraph.
PN2722
Yes?‑‑‑The main discussion - so that was only a two hour meeting. It was limited by the budget events that were happening in the north, so the adverse working conditions allowance, the options that we were looking at as I recall, were around whether that allowance would be paid out or could take some other form. TasWater s principal position around the adverse working conditions allowance is that we weren t happy for it to continue in the form that it was and we were looking for options to either grandfather it or buy it out. The SBU position was that it should apply state-wide. So we were trying to find a way through that. I don t recall anything else that was on that agenda. It was very limited because it was only two hours, so if there was anything else on there, it might have been one item, but I can t recall what it was.
PN2723
In paragraph 57 you state that there weren t any discussions about regional differences, is that right?‑‑‑I ll just read the paragraph. That s right. My recollection of those lock-in meetings was that the agenda being pursued by the SBU was the best of the best position. What they were asking for was that what they labelled as the best provisions in each of the three agreements should apply on a state-wide basis. There was never any discussion about enshrining a regional difference or a regional provision or preserving it in some way.
*** IAN ANDREW NELSON XN MR DILGER
PN2724
Wasn t that exactly what they were doing? Weren t they preserving their regional differences through taking the best of the regional differences and then applying them across the board?‑‑‑You could argue that at its highest level. Our position was that that was unaffordable. That simply lifting the bar to its highest point, you know, in its simplest form, yes I agree with you that that s preserving regional differences, but what it s actually doing is lifting up everyone to that top position rather than finding an equilibrium that everyone could deal with and live with. My view was that wasn t preserving regional differences, it was a quantum leap in the entitlements of all employees.
PN2725
The reason why it was a quantum leap was because those differences are so significant that to apply them across the board is quite expensive, isn t that right?‑‑‑In some cases it is. So for example, on-call allowance could potentially be quite expensive, rather than finding a comfortable equilibrium. In other areas, it would have been less so so. It was one of those issues where there were significant variances in quantum and practices and so forth that some of that could be accommodated to some degree, but everything that the SBU was seeking needed to go to the full degree. There was no - - -
PN2726
So the on-call provisions that we re talking about, are particularly lucrative in one region and to apply that standard across would be very expensive, is that correct?‑‑‑If you agree to the SBU s approach which was to take the best provision and apply it across the board.
PN2727
Adverse working conditions, for example. If you applied that across the board, that would be quite significant?‑‑‑That was $1,040 per person, so yes, it would add up quite quickly when you re dealing with a significant number of employees.
PN2728
When you agree this is all really about regional conditions?‑‑‑No.
PN2729
It s not?‑‑‑No, this was about lifting everyone s conditions to the highest possible level without actually giving anything up.
PN2730
Then, from your perspective, if the claim of the unions at that time had of been no loss of conditions, that would have been about regional differences?‑‑‑That would have - I don t see how that can work in a simplistic sense. If no loss of conditions was the claim, then from a bargaining point of view, where does the element of give and take fall into that. In all the bargaining that I ve done, there s been give and take to find solutions. The no loss of conditions or best of the best provision approach has been adopted. If you take it purely as read, then yes, it s basically saying there should be no loss of regional conditions but that presents a problem in terms of how do you find a solution that the parties can live with?
PN2731
Isn t the give that the unions and their members probably want to see an improvement in their conditions, rather than stay the same?‑‑‑I think you could argue that for every enterprise bargaining agreement that is negotiated.
*** IAN ANDREW NELSON XN MR DILGER
PN2732
Isn t the take then not seeking an improvement in their conditions?‑‑‑I m not sure I understand the question.
PN2733
No. I think we ve already discussed this, but you don t agree that the unions were pursuing the most favourable regional conditions and on that basis, it was all about regional conditions?‑‑‑No, my view is that the unions were pursuing the most favourable regional conditions without any view to the capability and cost that that would put TasWater to.
PN2734
Let s talk about that. So when you talk about cost, there s broad parameters. Is that correct?‑‑‑Correct.
PN2735
And broad parameters are currently 3 per cent of total on costs?‑‑‑Total costs, yes.
PN2736
Total costs, so total increase. So the total increase in costs of any new agreement can t be any more than 3 per cent?‑‑‑Yes.
PN2737
If you were to maintain the regional agreement, and the claim of the unions being no loss of conditions, so preservation of their entitlements, no increases, no decreases in their condition, just leave wages to one side. There wouldn t be any increase in cost, would there?‑‑‑No.
PN2738
That would be leaving aside the part of the bargaining parameters, a single state-wide agreement and acknowledging that there s going to be two because there s the senior agreement. You agree with that?‑‑‑Yes, there is a senior agreement.
PN2739
Leaving that aside, that s within parameters, isn t it?‑‑‑Strictly yes.
PN2740
In paragraph 71, you state that you thought, I think, Mr Crowley s email dated 1 December 2014, where it referred to possible scope at the end of those dot points, do you have that?‑‑‑Yes.
PN2741
You believe that that related to the senior enterprise agreement. Is that correct?‑‑‑That s correct.
*** IAN ANDREW NELSON XN MR DILGER
PN2742
But hadn t you already agreed with Luke Crowley in October as to the scope of that agreement?‑‑‑No. There s a detail there that needs to be clearly understood. Mr Crowley was agitating from the start of negotiations for an agreement to cover the senior employees, so those employees above 300 mercer points but below department manager level. His preferred solution was for those people to be part of the general agreement. TasWater s position was that they didn t believe that those people should be covered by an agreement at all, and as a consequence of his scope application in around June or July, TasWater had agreed to negotiate a senior EA. You ve mentioned that. The issue that Mr Crowley s eluding to there, is he always held in his back pocket, or reserved the right, to revert back to his original claim that the senior employees should be covered by the general agreement. So, in other words, he thought that the senior EA wasn t going to deliver the results that he wanted to achieve out of that bargain, then he reserved the right to move those people back into the bargaining for the general agreement.
PN2743
Did you have reason to think that was going to be part of his claim, at that time?‑‑‑Mr Crowley had periodically mentioned that this was still a live issue for him, depending on the outcome.
PN2744
So were the issues with the senior agreement negotiations at that time?‑‑‑There are still issue with that agreement. There are four items that Mr Crowley says are still outstanding and one of the principle issues is related to classification structure. There s been proposal back and forth about that and that s I think where Mr Crowley saw part of the disadvantage to his members in terms of senior agreement versus general agreement. I don t share that view, but that s what I think his view was.
PN2745
Mr Nelson, can I take you to paragraph 79 of your statement. Now, this is in relation to the meeting on 17 December 2014?‑‑‑Yes.
PN2746
This movement by the unions that you describe in that paragraph, that s the single largest movement on claims to progress these negotiations from either side whatsoever, isn t it? No other party has moved so much on their claims in these negotiations to that point. They were seeking the best of the best plus a bit to preservation of the existing entitlements, no loss of conditions?‑‑‑Correct.
PN2747
That s a very significant concession, wouldn t you say?‑‑‑Yes it is. Well, if you view it as a concession.
PN2748
I think I do?‑‑‑I think I view it differently. It was a radical change to all of their previous bargaining, and from my point of view, if it came with further bargaining, rather than a scope application, then one might view it differently.
*** IAN ANDREW NELSON XN MR DILGER
PN2749
It s good news for TasWater isn t it, when they go from best of the best to no reduction in conditions. That s a significant change and as you said just then, let s negotiate on that basis?‑‑‑But the position you re putting forward ignores that it comes conditional on three regional agreements and it s always been TasWater s imperative from a statutory point of view and in terms of their business culture, to move towards one agreement because part of the issue that TasWater has dealt with since its inception has been that people have compared themselves in one region to another because there were differences. So, recognising that and also the fact that they are one organisation, they are quite keen to move towards one agreement.
PN2750
That s not what happened at the start of that meeting, is it? There were questions asked, I believe of Ms Garrott and then there was a position put by the unions that they changed their position to no loss of conditions. It was only after that point that, when that wasn t agreed to, that scope was raised?‑‑‑Well, we weren t able to agree to that simply because it came with the caveat that it was three agreements, no loss of conditions and a pay rise, and that that was the new position. We had no instructions around how to deal with that. Principally the issue was, that it was tied in with the three regional agreements being maintained.
PN2751
Isn t what occurred at the start of that meeting, is that the unions pretty much asked TasWater to demonstrate how employees wouldn t be worse off, probably the language they used?‑‑‑Mr Lambert, if I recall correctly, made a statement to that effect and we declined to answer it because for every employee there would be different outcomes in the bargaining because of the changes that were potentially going to apply across the State, if that was the case. We couldn t answer that question in a sensible way because there were so many different potential variables in an agreement that was yet to be fully negotiated.
PN2752
Then the unions expressed their position of a way to stay any loss of conditions?‑‑‑It was all tied up in that same proposal.
PN2753
But TasWater wouldn t agree to that proposal either, would they?‑‑‑Just to be clear, the sequence of events was that there was a proposal on 4 December from the SBU. We responded to that with another proposal on the 11th.
PN2754
Wasn t there a proposal on the 8th?‑‑‑Oh sorry, 4th and the 8th. We discussed it the 4th and it came forward via email on the 8th with some further amendments that hadn t been discussed with us. We reviewed that and went back on the 11th with another proposal seeking to discuss that. Then on the 17th, which is the final meeting, where the scope issues is first raised, then the union position reverted to no loss of entitlements.
PN2755
Do you recall the union s first log of claims back on 7 May 2014?‑‑‑I do.
*** IAN ANDREW NELSON XN MR DILGER
PN2756
Do you recall that the first item on that was no loss of conditions?‑‑‑I do.
PN2757
Would you agree that from then, after negotiating through to the position that was put on 17 December, that the unions had reached their final parameters?‑‑‑No, I don t think so.
PN2758
Did the unions say at any point in time, that there s key claims and no loss of conditions is their bottom line?‑‑‑That was one of the claims that was put on 7 May and on 7 May I questioned the unions about that. My view was that it was an ambit claim and my reason for forming that view at that time was that pretty much every enterprise agreement log of claims that I see will have that claim on it and it is a logical starting point for a union, if I was a union organiser, that s what I would do. But, in nearly every bargaining negotiation, there s a give and take in there and things change in order to reach agreement. The difference here is that through the course of bargaining, the SBU, the unions that are involved, haven t been prepared to move their position on any of their claims.
PN2759
That s because there s significant regional differences?‑‑‑Well, I don t think those regional differences are so significant, that there can t be a solution found.
PN2760
You haven t found one today, have your Mr Nelson?‑‑‑Not for the whole agreement, but we ve certainly worked through a number of terms where we ve been able to reach agreement in principle.
PN2761
There are key claims from the unions and some of these key claims are adverse working conditions, the job security provisions, which are specific to one region?‑‑‑But look at the - - -
PN2762
THE DEPUTY PRESIDENT: The question answered please. You are talking at the same time.
PN2763
MR ASH: Sorry, your Honour?‑‑‑The issue as I see it is that the - let s use adverse working conditions as an example. The SBU claim was that that should apply to everyone who works outdoors throughout the whole state. No other reason other than they all work outdoors. The unions knew that that was a significant cost item. It wasn t about preserving a regional entitlement, it was about pushing it out to as many people as possible over the course of that bargaining. If the unions genuinely wanted to find a solution that was going to maintain key provisions and some other things were negotiable, then they could have said that right at the start, rather than going down the path of the best of the best.
*** IAN ANDREW NELSON XN MR DILGER
PN2764
They did say that, didn t they?‑‑‑Well they said it in the context of their solution being the best of the best for everyone. So, what I m trying to say is that the unions who are involved in this bargaining didn t actually look at the way that they might engage in bargaining for things that were critical to them and things that were less critical. Effectively what they said is, everything is critical.
PN2765
I thought we just talked about key claims. You recognise there are key claims for the union, don t you?‑‑‑Yes, and there s key claims for TasWater as well.
PN2766
Sure. So that was the best of the best? Now the claim of the union, would you agree, is no loss of conditions?‑‑‑Yes, subject to three regional agreements.
PN2767
But that s not the evidence of the unions Mr Nelson?‑‑‑I don t know what the evidence of the unions is because I haven t been here.
PN2768
Would you be surprised if the evidence of the unions was at that time, they were proposing no loss of conditions, that wasn t accepted, so they felt they had no option but to make this application?‑‑‑No, because their position from 7 May was the best of the best, and that s evident on their log of claims.
PN2769
I thought we spoke about the log of claims stating that high level, no loss of conditions?‑‑‑If you have a look at their log of claims, I think it says in the opening banner, that it s the best of the best and then it goes on to talk about specific claims.
PN2770
You understood at that time that the no loss of the conditions was contingent on three regional agreements?‑‑‑Correct.
PN2771
That would then be a complete stalemate, wouldn t you agree?‑‑‑No, because I believe that the union position can be that they want to retain the three agreements, but the issues are still able to be negotiated because I think from my perspective, if the unions are now saying that they re prepared to drop their best of the best claim and find something that s more acceptable, then there s the scope to negotiate within the single agreement parameter. This isn t a new issue for award corporations, it s happened before. So, it is possible to actually meld multiple agreements into one agreement and find an outcome. We re not treading new ground here.
*** IAN ANDREW NELSON XN MR DILGER
PN2772
TasWater wouldn t agree to no loss of conditions on a statewide agreement, would they? You can t remove all of those state differences, would you agree to that?‑‑‑TasWater wasn t able to agree to the SBU position on a statewide agreement on the basis that they were stridently pursuing the best of the best, that they weren t prepared to actually come to the table and say, this is what s really important to us.
PN2773
There was a meeting, you may have been in attendance on 5 February 2015?‑‑‑I was in attendance.
PN2774
At that meeting it s been suggested that there was a discussion where I believe Ms Garrott asked for a response to TasWater s proposal of 15 December 2014?‑‑‑Correct.
PN2775
I said it was rejected?‑‑‑You did.
PN2776
Then she asked for a detailed response?‑‑‑Correct.
PN2777
Then I tabled a document that had been previously provided which the unions had said, hadn t they, this is our bottom line?‑‑‑But that wasn t a detailed response to TasWater s proposal. Sorry, TasWater had received the 4 December, varied on 8 December proposal. We responded to that in some detail on 11th and we never received any feedback from the SBU other than it s rejected, we stand by our 8 December proposal.
PN2778
You re getting, your proposal is rejected. Here s our proposal and you can t agree with that, their proposal. That s been put a few times over that period of time. That s a stalemate, isn t it?‑‑‑I don t think so in the context that what s missing in there is the parties actually sitting down and saying rightio, well what is it about each of these proposals that is stopping me from reaching agreement? The problem is that the SBU got into the habit of giving take it or leave it proposals. That s the root of the issue. We sat in meetings where the SBU in some cases, didn t actually tell us it was a take it or leave it proposal. We would get to the meeting, we would find out that that s the parameter and be told that there s no more negotiation, take it or leave it from here. That s not bargaining in my view. The issue for us is we ve got a proposal from the SBU, we ve got a proposal that we ve put forward. We can start to look at the differences and see where we can close the gap. That wasn t happening because the SBU wasn t interested in playing the game that way.
PN2779
It s also, isn t it, because you re so far apart?‑‑‑Well, we are on some issues, but not necessarily on others. There are issues that the SBU was simply not willing to negotiate on, so for example the redundancy clause. They wanted unlimited redundancy and voluntary redundancy provisions that would effectively put TasWater in a very unenviable position.
*** IAN ANDREW NELSON XN MR DILGER
PN2780
You say that there are some claims that the unions just aren t prepared to negotiate on, is that right?‑‑‑Some of them, yes. The experience that I have is that they re not at this point willing to sit down and find a solution that is something that both sides can live with. It might not be everything that both sides want, but it will be something that could be lived with.
PN2781
I mean, at least with some of those claims isn t the position also that the employees are not prepared to negotiate on them?‑‑‑But we ve done, on a number of occasions, come back and said here s the things that we can negotiate on, here s the things that we re going to have trouble negotiating on based on your current position and we ve clearly identified what those are. You ve actually sat in meetings where we ve talked about those things and tried to actually understand each other s perspectives so that we can start to narrow that gap.
PN2782
I recall seeing documents though, Mr Nelson, and I believe it was this proposal of 15 December 2014 that we ve been talking about, which had a column on the far right hand side and in that column was written, unable to move, as TasWater s position on a number of things?‑‑‑That was in respect to the SBU claim as it stood at that point in time.
PN2783
They were the key claims of the union?‑‑‑So what that s saying is, that if you maintain the claim that you put forward on that topic, we can t move any further. But if that claim was to be modified in some way, well we may well be able to do that.
PN2784
Yes?‑‑‑You need to understand this in the context of how bargaining was operating. So, some of these things the SBU was simply saying that s it, we re not prepared to move on it. It was in the context of the best of the best claims and we were saying we can t agree to those terms because they re too expensive, they re too out of our bargaining range.
PN2785
That s right. So, unless the unions made significant concessions, no agreement would be reached?‑‑‑Based on their claims at that point in time.
PN2786
Mr Nelson, I ll now take you to some questions in relation to your reply statement. We ve sort of discussed this previously, but in paragraph 4, the best of the best claims, that position s outside of TasWater s bargaining parameters?‑‑‑Yes.
PN2787
But, no loss of conditions isn t, aside from the fact that it s not a state-wide agreement?‑‑‑
*** IAN ANDREW NELSON XN MR DILGER
PN2788
THE DEPUTY PRESIDENT: Are you asking Mr Nelson to agree to that, or not?
PN2789
MR ASH: Yes?‑‑‑No, I don t agree with that. I don t see that the no loss of conditions can exist comfortably without the three regional agreement philosophy that the SBU has adopted. But, if you want to look at, for example, how an agreement could be structured so that employees aren t suffering a significant loss of entitlements on a better off overall basis, or a no disadvantage basis, whatever test you want to apply, I think that s achievable.
PN2790
So your evidence is then, that within those parameters, with the exception that we talked about, the single agreement, that would only be achievable with regional enterprise agreements? Not if there was a single agreement with no loss of conditions?‑‑‑If the SBU position is that on individual terms and conditions of employment, so a specific clause mustn t be changed to result in a loss to that individual, then it s very hard to view it as anything other than three regional agreements.
PN2791
You ve answered some of these questions Mr Nelson, so I won t be a second. At paragraph 12 of your reply statement, you state that you believe that expiry dates of the current agreements were chosen in consultation with the unions written interest in those agreements. So my question to you Mr Nelson, is you accept then that some of these unions in the SBU are only interested in some regions by way of their membership being there and not in others. That s the dynamics?‑‑‑Not necessarily, because they ve all had involvement in the bargaining all the way through, so they ve approached this on the basis of being one union.
PN2792
Yes, but would you accept that the membership of some of those unions, is regionally based and only interested in those conditions in particular?‑‑‑I accept that it s regionally based, there s no doubt about that, the facts speak for themselves, but, they ve all bargained collectively. They have identified during the course of bargaining where a particular provision might have more relevance to a particular region than others, but they bargain for the best of the best across the board, and they all pursued that agenda.
PN2793
Yes, until 17 December?‑‑‑Until 17 December.
PN2794
In paragraph 14 you state that TasWater s concern there was in relation to the overall number of the delegates, is that right?‑‑‑That s right.
PN2795
There were too many?‑‑‑There was, and we weren t being told who they were going to be.
*** IAN ANDREW NELSON XN MR DILGER
PN2796
When you stated earlier that some of those delegates of the different unions would only be interested in some of the claims and not others, what, in the sense that they would only work in one of the regions. If there was a discussion about a condition that didn t apply to them, in the region that they re in currently, they wouldn t be interested?‑‑‑No, I don t think I said that. I think I said that within those small working groups, some of those delegates had more knowledge of particular conditions than the others, and they were the people who it was anticipated would lead the bargaining for those issues.
PN2797
Yes. So maybe, the reason why they would have an interest is that when best of the best is being argued, they ve got an interest in getting that favourable regional condition across the board. So they re going to benefit from it as well, so they d have an interest, wouldn t they, those delegates from the region that s going argues for the more favourable regional condition?‑‑‑Look, you can take that point of view, but I think the practical reality was that those people were able to give a working workers view of what that provision was there to do, what it was designed to mitigate against, or compensation for or whatever, and that was important in the bargaining in terms of all of the parties actually understanding what it was. In effect, so that the parties didn t miss a nuance, or something of significance that they otherwise didn t know about.
PN2798
We re talking about delegates from a union discussing a claim for a particular regional condition that they don t enjoy, they don t know anything about it. How are they going to give this information that you re talking about, about how it works? Say it s a delegate from the southern region, how are they going to contribute to the discussion around the adverse working conditions?‑‑‑They wouldn t, because they don t have the knowledge of experience of it. I think the issue that you re trying to get your head around is that within those working groups, and within the larger meetings, we were seeking to discuss multiple issues on each day. It wasn t a case of turn up for the meeting and have one subject matter, although the SBU tried to pursue that in terms of dispute resolution on a number of occasions. So, in the room, there were delegates that - I m a delegate, I might not have a particular interest in what s being discussed right now, but the next topic item I could well do. So, it wasn t a case of turn up for the whole day, do nothing. There were multiple things being talked about all the time.
*** IAN ANDREW NELSON XN MR DILGER
PN2799
Would you agree then, that if the scope were to be the three regional agreements, the delegates that are there, they re not going to be sitting around at any point in time not discussing something of interest to them, because it s about their terms and conditions?‑‑‑It is about their terms and conditions by default, because it s a regional agreement, but there ll still be terms within there that they don t have exposure to or knowledge of. Some of them, the particular terms of that agreement will still apply to other areas. For example, if you look at one of the regional agreements, and let s say it s the southern agreement, there are terms and conditions in there that address admin based employees, field based employees, other categories of employees within the workplace. So, if I m an IT employee, I don t necessarily have an interest in what the outdoor employees are negotiating in terms of a particular course. The same scenario is going to arise. It can t be any different than that.
PN2800
That occurs now in the statewide agreement negotiations. You can t have a delegate, there isn t a delegate from each one of the work groups. You have an issue with how many delegates are there?‑‑‑I m not sure I understand the question.
PN2801
So, you couldn t have a delegate from IT, from administration as well as from outdoor regions?‑‑‑Well, the unions have been choosing their delegates, so the arrangement that was put in place after the GFB application in front of Commissioner Lee, allowed the unions a certain number of delegates and depending upon the agenda items that were on foot for the next meeting, they could choose who those delegates were going to be to attend. So they could pick and choose and tailor their representation to the issues on the agenda.
PN2802
You d agree, wouldn t you, that overall if there were regional agreements, those delegates that we talked about before that are sitting there, interested in some subject matter, maybe from the south, then adverse working conditions comes up, not interested at all. If it was all about just the issues in that regional agreement for the south, that delegate is going to be interested for more of the time than they would on the statewide negotiations?‑‑‑I m not sure that that s - I think that s an overly simplistic view and I m not sure it holds water because again, I get back to that whole issue that even in the current regional agreements, there are terms and conditions in there that apply to one category of employee and not to others, so there are still people going to be sitting around a table for a period of time that don t have anything to do in terms of a particular claim item. But their turn will come when something does come up.
PN2803
You take issues from the evidence that the union representatives that they spend up to 75 per cent of their time, sitting in these meetings, disinterested?‑‑‑I do, because they ve all through the course of the meetings, participated as an SBU and they ve all got involved in different discussions in support of each other. So, it s not a case of they ve sat there for the whole meeting and said nothing. They ve contributed to the discussion whether it was directly face to face or caucusing privately.
PN2804
Mr Nelson, I m glad you ve properly answered all of my other questions.
PN2805
Your Honour, I have no further questions.
*** IAN ANDREW NELSON XN MR DILGER
PN2806
THE DEPUTY PRESIDENT: Thank you. Before you go Mr Dilger.
PN2807
MR DILGER: Sorry, your Honour?
PN2808
THE DEPUTY PRESIDENT: Mr Nelson, in your mind when did the SBU position change from best of the best plus a bit, to no loss of conditions?‑‑‑17 December your Honour.
PN2809
When was the three regional agreements first raised?‑‑‑17 December.
PN2810
Before or after the unions put that position?‑‑‑It was all part of the same position, your Honour, as I recall. It was all part of the same proposal. They weren t prepared to lose any conditions and therefore they were seeking the three regional agreements to be preserved, a small pay increase and no loss of conditions as a consequence.
PN2811
I m clear that that followed?‑‑‑That s my recollection of the 17 December meeting.
PN2812
Mr Ash, anything out of that?
PN2813
MR ASH: Nothing, your Honour.
THE DEPUTY PRESIDENT: Mr Dilger?
CROSS-EXAMINATION BY MR DILGER [2.25 PM]
PN2815
MR DILGER: Just on that exact same point Mr Nelson. You said it was until 17 December 2014, it had progressed as best of the best?‑‑‑Yes.
PN2816
Have a look at TW70. It s a document that was delivered by Mr Ash on 5 February 2015, which we ve been talking about?‑‑‑Where s TW70.
PN2817
Do you recall that document?‑‑‑Yes I do.
*** IAN ANDREW NELSON XXN MR DILGER
PN2818
What was the scope of that agreement, presented as an enterprise agreement. What was the scope of that agreement?‑‑‑It was a statewide agreement covering all employees other than the CEO, general managers, department managers and employees covered by any other enterprise agreement.
PN2819
A single statewide agreement?‑‑‑Correct.
PN2820
Had that position changed from 17 December 2014?‑‑‑Yes. At that date, it was the three regional agreements with no change.
PN2821
Thank you.
THE DEPUTY PRESIDENT: Thank you Mr Nelson, you re excused?‑‑‑Thank you your Honour.
<THE WITNESS WITHDREW [2.27 PM]
PN2823
THE DEPUTY PRESIDENT: Does that conclude your evidence Mr Dilger?
PN2824
MR DILGER: Yes it does, thank you your Honour.
PN2825
THE DEPUTY PRESIDENT: Mr Ash, do you want a 15 minute break?
PN2826
MR ASH: Yes, I think we re travelling pretty well, so if I could have the indulgence of 20 minutes.
PN2827
THE DEPUTY PRESIDENT: Yes, we ll resume at 2.50.
LUNCHEON ADJOURNMENT [2.27 PM]
RESUMED [2.48 PM]
PN2828
THE DEPUTY PRESIDENT: Mr Ash.
PN2829
MR ASH: Thank you, your Honour. Your Honour, the applicant contends that the evidence has unfolded largely as it expected it would. In short, it's contended that after 15 months of bargaining the parties are no closer to reaching an agreement than when they first started. Bargaining is definitely at an impasse. The impasse is partly because of - maybe wholly because of regional base conditions, and it's more likely that agreement will be reached if the existing regional agreements are maintained for this round of bargaining.
*** IAN ANDREW NELSON XXN MR DILGER
PN2830
Importantly, Ms Garrott and Mr Nelson gave evidence that on the union's claim of no loss of - of preserving the original agreement conditions - no loss of conditions - the broad parameters are that wouldn't be met - is only a single State-wide scope. If the application were granted it would overcome that parameter, and we submit that that would be fair and efficient. In regards to the respondent's amended outline of submissions, I want to go through that ‑ ‑ ‑
PN2831
THE DEPUTY PRESIDENT: How would it overcome that parameter?
PN2832
MR ASH: Because she would make the order, your Honour.
PN2833
THE DEPUTY PRESIDENT: I see.
PN2834
MR ASH: In regards to the respondent's amended outline of submissions, we make the following observations: the applicant refers to a legislative intention in paragraph 3 and 4 for TasWater to become a single organisation. There is nothing in the legislation which expressly mandates that a single organisation must have two single enterprise agreements; that is, the general and senior agreement. There are many single organisations with multiple enterprise agreements to parts of the workforce - covering parts of their workforce.
PN2835
What TasWater is currently proposing in its single enterprise agreement is, in fact we submit, in contravention of section 12 of the Water and Sewerage Corporation Act 2012, which currently provides for a general preservation of employment conditions and is not time-limited. In relation to paragraph 24 of their submissions and its reliance on Alinta v the Super Retail Group, paragraph 248 of Alinta is obiter and not authority for the proposition advanced by the respondent.
PN2836
At its highest it may be the case that the SBU communications that are in the name of the CEPU are attributable to the CEPU, and the Super Retail Group reliance is not on point, as it concerns misleading statements generally. In relation to paragraph 27(b) and its reliance on Peabody, Peabody is in fact supportive of the CEPU meeting the good faith bargaining requirements as they have met with the respondent, rejected their offers, and explained that their members would not agree to an offer that reduces their terms and conditions of employment.
PN2837
In relation to paragraph 27(c) through to (f) and its reliance - this is in the outline of submissions of the applicant - and its reliance on Murray Bridge, it both contradicts paragraph 22 of their submissions and can be distinguished. In that case the employer was found to not have properly responded to claims, and its insistence to only do so at the final stages of negotiations and to conclude negotiations without reference to the union led to bargaining orders being made.
PN2838
In relation to paragraph 27(e) and the reliance on Endeavour, it is not authority for such a low threshold in this context. It cannot be said that the CEPU has been a disinterested suitor, and that paragraph 43 of that decision instead supports a finding that the CEPU is meeting good faith bargaining requirements as they've made a counter-proposal.
PN2839
In relation to paragraph 28 and its reliance on Chubb, paragraph 72 in Chubb is about fault for delaying the bargaining process. The fact that there is a stalemate supports making the orders, as held by Sams DP in Shinagawa. In relation to paragraph 32, all the evidence has now been adduced. And in relation to the reliance on BP Refinery and paragraph 28, the earlier paragraph, 25 of that decision, held as follows:
PN2840
One can postulate circumstances where bargaining for two agreements for two groups would be more efficient than bargaining for a single agreement covering both groups. To give a single example, the evidence may establish that the two groups of employees have conflicting positions on issues that are important to them but not particularly important to the employer, as can arise where there are demarcation issues. In such a case, it may plainly be more efficient to have two separate agreements and avoid the effort and delay involved in resolving those issues for a single agreement.
PN2841
And in relation to paragraph 37 of their submissions, BP Refinery is not authority for the proposition that the impasse must be about scope. Nevertheless, we say it is about scope. The relevant paragraph in that decision is paragraph 23:
PN2842
It is true that the Commission can only make a scope order when such an order will be necessary to promote fair and efficient conduct of bargaining . Where, as here, bargaining is at an impasse because of the disagreement over scope of a proposed enterprise agreement and the Commission is confronted with competing applications an order is necessary to break that impasse.
PN2843
In relation to paragraph 39, the reliance on the decision in Airflight to suggest that it has only been recognised that bargaining for geographically distinct agreements is possible where there is no mobility is just plain wrong. The decision does not say that. In relation to paragraph 40 and its reliance on paragraph 75 of the decision in Red Cross, that paragraph is a contention of one of the parties and does not form part of the reasons of the decision. It is seriously misleading to suggest otherwise. That case was decided on finding the group was not operationally, organisationally or geographically distinct, and thereby not fairly chosen, unlike the present case.
PN2844
In relation to paragraph 41 and its reliance on St John of God, it is not authority for the proposition contained in that paragraph. What was being considered was whether the employees were fairly chosen, and not whether the order would promote the fair and efficient conduct of bargaining. In relation to paragraph 42 and its reliance on paragraph 69 of the ARTC case, there is no paragraph 69 in the ARTC case, and that decision was determined on the basis of the scope not being fairly chosen.
PN2845
And in relation to the reliance on paragraph 26 of the BP Refinery case, that paragraph supports the applicant's case and reads:
PN2846
Intuitively, bargaining for two agreements for a group of employees will involve a degree of duplication of process and negotiation and thus be less efficient than bargaining for a single agreement to cover the same group. That is demonstrated in the present case by the identical programmes specified by the Company for the first bargaining meeting of each of the two groups. The lesser efficiency in such an approach is manifest. That is to say, in the particular circumstances of an individual case, it will not be open to decide that bargaining for two agreements will be more efficient than bargaining for one.
PN2847
In relation to paragraph 43 and its reliance on paragraph 29 of the ANZ Stadium case, this obiter, relating to when scope is typically chosen, and no more. In relation to paragraph 45, these proceedings were only concerned with whether the unions were bargaining in good faith or not. In relation to paragraph 47, its reliance on paragraph 44 of BP Refinery, that paragraph in full reads as follows:
PN2848
In accordance with the approach laid down in United Firefighters, prima facie, if the group proposed by the Union is reasonable it should have been preferred unless there was some good reason to prefer the two groups proposed by the Company over the single group preferred overwhelmingly by the employees. That is, unless there are factors relating to the fairness and efficiency of bargaining and or demonstrated prejudice to the employer s business operations that make it more reasonable to accept the employer s application, notwithstanding the contrary preference of employees, weight should be accorded to the views of the employees.
PN2849
The applicants contend that TasWater has not demonstrated any prejudice to its operations that clearly outweigh the views of the employees, demonstrated through the union bargaining representative support and the representative survey, which is exhibit LMC1. In relation to paragraph 48 and its reliance on paragraph 29 of the BP Refinery case, that paragraph, read in full, is as follows:
PN2850
The right of employees to bargain collectively is a right recognised in ILO Convention -
PN2851
I won't read all of that out -
PN2852
both of which have been ratified by Australia. It is a right that was foundational to the enterprise bargaining regime first introduced to the federal industrial legislation in 1993. It is implicit in the right to bargain collectively that the preferences of employees as to the appropriate collective should be respected unless there is some good reason under the legislation to decide otherwise a reason that relates to the conduct an efficiency of bargaining or to the efficient operation of the employer s business. It is, after all, the employees who are in the best position to determine the collective that best suits their legitimate interests.
PN2853
The applicant contends that there's nothing in the Water and Sewerage Corporations Act 2012 that mandates that two single enterprise agreements, the senior and the general, are needed. The application is about the process of bargaining and not about outcomes. In relation to paragraph 50 and its reliance on paragraph 67 of the APT case, it is not authority for the proposition in this paragraph, but paragraph 62 and 63 of that decision read:
PN2854
On the issue of promoting efficient bargaining, it is important in this instance to recognise the difficulties that have been encountered by the Parties as they have attempted to negotiate a replacement Agreement which includes NSW. These difficulties can be contrasted with the reasonable progress of negotiations for the North West Agreement. Despite their acknowledgement of the failure of the bargaining to date, the Unions did not suggest any alternative means to resolve the bargaining deadlock reached in respect of the South East Agreement.
PN2855
Consequently, the Commission is faced with the proposition that to simply refuse the application for a scope order, in the absence of any other course of action, would open the prospect of entrenching the ongoing inefficient bargaining for the South East Agreement. Therefore, the option to do nothing could not, on any objective analysis, promote fair and efficient bargaining, while the scope order would have some probability to satisfy this particular factor contained in subsection (4)(b) of section 238.
PN2856
In relation to paragraph 53, there is no basis to suggest that common modern award coverage supports a state-wide scope over maintenance of the regional agreements. In relation to paragraph 54, section 6 of the Water and Sewerage Corporations Act 2012 simply does not say what they're suggesting it does. In relation to paragraph 58, this submission is misleading, as employees were asked to rank particular issues, none of which were expressly scope of the agreements.
PN2857
In relation to paragraph 56, TasWater state that the current coverage is fair. This is a misguided submission in this context as it is about whether bargaining is proceeding fairly. And in response to paragraph 59 about local issues, this is not supported on the evidence. Paragraph 61, we say is not soundly based. Paragraph 62, we say assumes outcomes. And the evidence simply does not support paragraph 66. In relation to paragraph 67, the contention is disputed, not supported on the evidence. And paragraph 46 of Patterson is nowhere near on point.
PN2858
In response to paragraph 68, the evidence discloses that the employees are working out of their normal geographical places of work and not side by side, we contend, from different regions. Further, in relation to paragraph 68 and its reliance on paragraph 45 of the Super Retail Group case, these circumstances can be distinguished by TasWater seeking to reduce the terms and conditions of employment to the lowest common denominator.
PN2859
In relation to paragraph 71, again, there's no paragraph 69 in the ARTC case. Further, the applicant submits that the application is properly made when negotiations reach a stalemate. In relation to paragraph 73, the applicant submits the consideration is about future negotiations. In relation to paragraph 78 and its reliance on paragraph 66 of the ARTC case, that paragraph reads - it is the second-final paragraph in the decision, it's not on point - it's:
PN2860
The legislative requirements have been made. Consequently, I issue a bargaining order.
PN2861
In relation to paragraph 79, the evidence discloses that there are competing claims between the regionally-based groups of employees. The agendas have often involved items that are common across the regions, but in addition to key claims, and TasWater has consistently referred to at all being a package. And as stated during the opening in relation to paragraph 80, that's a very large concession by TasWater, and it supports the granting of the scope order sought.
PN2862
In relation to paragraph 85 and its reliance on paragraph 65 of the ARTC case, that paragraph does not support the proposition in that paragraph. In relation to paragraph 86 and its reliance on paragraph 35 of New Zealand Stadiums case, I don't understand why it's being relied on as it concerns how scope order should be pursued, instead of arguing at an approval hearing that the scope is unfairly chosen.
PN2863
In relation to paragraph 89 and its reliance on paragraph 66 of Chubb, that paragraph 66 reads:
PN2864
A number of factors such as the use of feeder trucks, the centralised maintenance depot and coin collection which are said to support a finding that Nerang is a satellite of Moorooka, also apply to the Toowoomba and Kawana Depots.
PN2865
I don't believe that supports that paragraph. Further, the evidence discloses that the application has nothing to do with strengthening the applicant's bargaining position. In relation to paragraph 109 of their submissions, this is not part of the test to be met by this application, it's a matter for any resultant negotiations.
PN2866
The evidence, your Honour, of Todd Lambert discloses that the CEPU considered the employer's response to their notice of concerns but did not address their concerns, and instead believes that they weren't bargaining in good faith. In regards to the question of whether or not the applicant is meeting the good faith bargaining requirements of the Act, it's submitted that the evidence discloses that it is meeting the good-faith bargaining requirements of the Act, and as anticipated, it is contended that the evidence discloses that the complaints of the employer in this respect are similar to its concerns that I outlined in my opening, which is that in fact good-faith bargaining requirements have been met by all.
PN2867
Their submissions appear more concerned with ensuring the commission that they have been, in a relative sense, bargaining with a higher level of good-faith than the applicant and are conflating the good-faith bargaining requirements of the Act with not conducting negotiations in the manner referred by TasWater.
PN2868
In relation to the question of fair and efficient, to the extent I haven't already dealt with that in responding to the respondent's outline of submissions, we rely on the following from the UFU case, which is that the relevant consideration under section 238, subsection (4) paragraph (b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is the tribunal should be satisfied that if an order is made, the bargaining will at least be fairer or more efficient or both, then it would if no order were made.
PN2869
We say that the evidence of Todd Lambert discloses that he didn't believe that the parties could reach agreement on the current state of the wide scope. The evidence of Robert Flanagan went to the conflicting claims between the bargaining representatives, the unlikelihood of reaching agreement.
PN2870
The evidence of Noel Washington was that he had regularly raised the issue of scope and that union's time and others would be more efficiently used in negotiations for a regionally-based agreement in which his union had an interest. And so we submit that in these proceedings bargaining is clearly at an impasse.
PN2871
The respondent is refusing to put the agreement out based on this application. They're blaming the applicant for the impasse. Industrial action has been taken. Very little, if any, progress has been made, particularly in relation to the last period of time. Clearly we say it's necessary that the scope order be made, and we can rely on the decision in Shinagawa to support the proposition, where his Honour Sams DP stated that:
PN2872
In my view, the legislature plainly intended that Fair Work Commission should take steps to rectify such a stalemate through the making of a scope order upon application by a party/s to the negotiations.
PN2873
Further, in Shinagawa the applicant union sought a scope order to require the employer to negotiate a separate agreement for maintenance employees in circumstances where the employer sought a single agreement to cover production and maintenance employees. Sams DP noted that it was necessary for the commission:
PN2874
To consider the current state of the negotiations and the reasons why the making of the proposed order would promote fair and efficient bargaining.
PN2875
The scope order was granted in that case on the basis that there were existing separate agreements to cover production and maintenance employees, and the employer sought to alter that status quo by negotiating a single agreement.
PN2876
In making the order his Honour found that the insistence of the employer on having a single agreement had stalled the negotiations to the point where they were deadlocked, including over the issue of scope; there had been little discussion on the merits of competing claims; maintenance employees had a real, legitimate and understandable concerns that their interests would be overwhelmed by interests of production employees; and given the - in this case - the animosity and differences in working conditions between production and maintenance employees, harmonious and cooperative workplace relations would not be promoted by perpetuating the employer's insistence that it only negotiate with all unions for a single agreement.
PN2877
We say that's the case here as well in relation to both the stalemate and in relation to the relevance of the evidence, particularly of Mr Flanagan, in relation to competing claims. That both goes to fairness and efficiency. I believe in Shinagawa his Honour was really only considering it from an efficiency perspective - sorry, from a fairness perspective. We think it's probably, in this case, more relevant on an efficiency perspective.
PN2878
I don't want to repeat some of my - repeat what I stated in opening submissions, so I'm just going to find what I haven't addressed. In relation to the evidence that we're relying on in relation to Robert Flanagan, he raised what we say are significant concerns in relation to his members being outvoted by others. And previous decisions of the commission have found such a consideration to be relevant. In the Stadium Australia case Lawler VP referred to this very issue. I did read that out in my opening submissions, so I'm not going to read it again.
PN2879
In the opening submissions I also referred to the ASMOF case in support, and I won't read that out. And I also noted that it was also dealt with in the Shinagawa case, and we say all are relevant to this case.
PN2880
I just close by repeating what I mentioned at the start, your Honour, which is from where I'm standing it would seem that on the evidence of Ms Garrott and Mr Nelson, that on the union's current claim of no lost conditions; that is, preserving the regional agreements, which this order seeks, that on that basis, the only Board parameter that would not be met is the single state-wide agreement. And if you make the order that would be overcome, agreement would be very easily reached; and that, we say, is fair and efficient. If there are no questions, your Honour.
PN2881
THE DEPUTY PRESIDENT: Thank you, Mr Ash. Mr Dilger, are you in a position to respond?
PN2882
MR DILGER: I think Mr ‑ ‑ ‑
PN2883
THE DEPUTY PRESIDENT: Sorry. Mr Swanton. Mr Swanton, I'm sorry.
PN2884
MR SWANTON: Thanks, your Honour. I'm not going to embark down case law or anything like that, your Honour, but as an industrial officer that has been dealing with these matters from day one, I think I might be able to give the parties some enlightenment as to the history of this briefly, and a way forward.
PN2885
I've been a union delegate since about 1996 with the Hobart City Council, looking after 750 staff as a senior delegate. I then was tapped on the shoulder by the Australian Services Union and became an industrial officer from round about 2002 to 2010. During that period of time I singlehandedly looked after the 29 councils industrially for the state, together with the three, then, water corporations, Esk Water, Hobart Water and Cradle Water.
PN2886
Together with those elements there were six instruments or awards that dovetailed all into these agreements as well. I won't go through the whole lot, but the four most salient are the Municipal Employees Award, the Municipal Officers Award, and the two specific awards for the Hobart City Council and for the Launceston City Council. And all of those dovetailed into the transfer that ultimately went to the then four water corporations.
PN2887
The four water corporations became what we now know, plus Onstream and they all had instruments. And, in fact, I've dealt with all four instruments, and I think we were the only party - myself and a national industrial officer called Michael Rizzo, that actually negotiated an instrument for Onstream employees which I believe is still a live instrument today.
PN2888
Having said all that, the other element with this is that myself and another national industrial officer called Keith Harvey were instrumental in the drafting - or part of the drafting of the Water Industry Award, so I'm very familiar with all of those elements and the notion of how things have arrived at today.
PN2889
The most salient element of the transfer to me, which is relative to today, and it was laboured on earlier in relation to the smoothness or perceived smoothness of transfer of instruments, and they trotted out 25. And I believe it's more than 25, it's probably closer to 31. The success of that, in fact, related to the then chair of the Water Corporation, a Mr Geoff Willis, who went around publically stating a mantra, and the mantra was that there would be no loss in aggregate.
PN2890
He spread this everywhere, and what it did was reinforce to the employees the notion of stability, of a way to move forward, and I believe that's why so many instruments successfully were able to be put into ultimately the three Water Corporation instruments themselves.
PN2891
THE DEPUTY PRESIDENT: Did that mantra apply to individuals, or collectives?
PN2892
MR SWANTON: No, it applied to individuals right across the state. And they were people from Hobart Water, Esk Water, Cradle Water, and all of the - it's actually 27 of the 29 councils, because I don't think King Island and Flinders are part of the deal. I may be wrong, but that's just how I saw it. And then those other awards that dovetailed in through the local government.
PN2893
But he made it absolutely clear from the Board to the four CEOs that that was going to be the application of conditions and entitlements. And just to reinforce the background of what I've just said, as a bargaining representative not part of the SBU, I'm in complete agreement with Mr Ash's submissions as to the rationale to you making an order for those three agreements because of the impasse.
PN2894
And in my short amount of time of being an industrial officer, some 13 years, I'm in full agreement with some of the other sentiments that have been made. I've not just worked in the 29 councils and the four water corporations, I've also worked in private enterprise agreements, NGO agreements, and I've never seen such a protracted negotiation as this in the whole time that I've ever negotiated.
PN2895
So in summary I think in terms of a resolution to allay this impasse and to give some confidence to employees, and also to give a way forward for management of TasWater, I believe that the order for this scope application allowing for the three agreements should occur. That would be my submission, your Honour.
PN2896
THE DEPUTY PRESIDENT: Thank you, Mr Swanton. Mr Dilger.
PN2897
MR DILGER: Thank you, your Honour. I've just got some potential housekeeping. I have given your clerk earlier those decisions, which I've highlighted. I will give you my submissions here, sir. They're not meant to be in the form of written submissions, but they may assist you read along with me as I go. Obviously they were prepared last night and haven't had the benefit of Ms Garrott or Mr Nelson attending, but they do provide a guideline and they will give you some context of which you could find materials. It has got an index and everything in there.
PN2898
Before I go on, I just want to address one really quick, clear point that has led to some apparent confusion, and it shouldn't have even got to this point. There has been some suggestion by Mr Ash and by Mr Swanton that there was some legislative intent of the preservation and terms and conditions. The simple reality is in any compulsory transfer that's exactly what the Water Corporations Act did, but it was only to be done at the time.
PN2899
So when they moved out of Ben Lomond Water, Cradle Mountain Water, Southern Water, into TasWater, it's a very specific requirement of the Act in the transfer notice that the employees' terms and conditions are applied. Then it goes on further to say that after that time enterprise bargaining or other form of agreement may change that. So any suggestion that somehow the legislative intent is just completely wrong, and it's misguided because it takes away the fundamental aspect of every compulsory transfer. The same would have occurred at Aurora and Transend when they went to TasWater and so forth. So I want to clear that up at the start.
PN2900
The difficulty you have today, your Honour, is that what they are effectively seeking in this application will give you three options. You can continue with what we say you do and allow the parties to continue to bargain, and they will continue to bargain and they will bargain on terms and conditions. If you grant a scope order the second option will be the parties will effectively have to start again, because all of the gains that they've made, all of the parameters will be thrown up and the options will be to start again.
PN2901
Mr Ash talked about you only are dealing with the single agreement Board parameter which can be dealt with by your granting of that application. That's just not true, because the other Board parameters are you have a common classification and pay structure, and you have common terms and conditions that resolve regional discrepancies. They cannot be altered by a scope order. You can't make terms and conditions which will grant any content of those agreements; you only set the parameters for which bargaining will occur.
PN2902
In those circumstances the parties are left on their own and they start again, so they cannot be resolved. That single scope is one element. And yes, that can be resolved, but the interesting thing - and Mr Ash touched on it earlier - he said, "Even if you grant the application - don't grant the application" - my apologies, he said - "it won't stop us going and agitating for a (indistinct) the three regional agreements."
PN2903
Well, same deal again. You grant the scope order and the parties, in the ordinary course of bargaining, can trade off issues. They could trade on scope. They wouldn't have to, but they could trade on scope, and that could reach agreement as well.
PN2904
The third option you have is what they sought, and they call it no loss of conditions. The difficulty with no loss of conditions is effectively this: what they're actually seeking you do is grant a 2.8 to 3 per cent wage increase, and that's it. So for nothing; they keep their same terms and conditions, and they get a 2.8 to 3 per cent wage increase. That is against the objects of the Act in terms of bargaining for productivity.
PN2905
It is absolutely all take and no give, because in effect all they are asking you to do is grant something which you can't do, but they say it sounds so easy. "Just let us stay on the same terms and conditions and grant us an increase." Of course that sounds easy, but that negates the whole aspect of bargaining in which we're in.
PN2906
In summary this is what you should do: you should dismiss the application. You should take into consideration the conduct of the SBU. The evidence of the parties, particularly the union parties, was clear: they all unequivocally acceded to the authority of the SBU; they all unequivocally stated that the SBU spoke on their behalf; now what Mr Ash is asking you to do is somehow give them little pieces of qualification to not be bound when they don't want to be.
PN2907
They chose how to operate, they chose the people, and now Mr Ash is asking you to forgive them for their decision. They don't meet three of the four mandatory requirements. We will definitely give them one. I think it's definitely a neutral point that the scope they proposed is capable of being fairly chosen. It's consistent with the existing arrangements and we take no issue with that.
PN2908
But here's where they do have some problems. The first one, which Mr Ash wanted to gloss over and say, "TasWater wants to hold people to higher levels," was good faith bargaining. The realities were they absolutely all conceded to - sorry, I will start back again. Mr Lambert, Mr Crowley, Mr Flanagan - sorry, Mr Crowley and Mr Lambert definitely conceded they had failed in certain respects to comply with the recommendations of Lee C. That was without doubt.
PN2909
I will pause for a moment and I will just talk about the evidence of all four of them. Mr Lambert was an impressive witness. He was a long-winded witness, but he was certainly impressive. He made numerous concessions against his interests, and the clear things that Mr Lambert talked about often were this was all about a loss of outcome; this was unsatisfaction with their bargaining efforts to date. This wasn't an argument about scope. In fact, he was quite clear. He said, "They certainly had bargained the whole way through. They had bargained for the best of the best from 7 May to 17 December."
PN2910
We saw the insistence of Mr Ash when he talked about, "Well, we mentioned on 7 May that we were focusing for no loss of conditions." But one by one Mr Flanagan, Mr Crowley, Mr Lambert and Mr Washington could not point to any documentary evidence whatsoever until 17 December where "best of the best" was replaced by "no loss of conditions". They can talk all they like about it, but comparatively there's just no evidence.
PN2911
The evidence of TasWater, on the other hand, was quite comprehensive. They had numerous minutes, meeting notes, tables to assist you the whole way through. Mr Crowley was an equally impressive witness. The important thing about Mr Crowley, other than he was brief on that point yesterday, was that he was exceptional in delivering. When the issue of scope came up, he was the only person at the table.
PN2912
So when Mr Ash talks about, "We were agitating the whole way along about these three regional agreement scopes," it's just misconceived. It's designed solely to attract attention, and it doesn t even reach the starting line. Because when Mr Crowley was at Fair Work before Lee C - he was the only party there, and he was agitating for scope.
PN2913
And so when you're looking about what a party would do when they're agitating for scope, have a look at Mr Crowley's detailed submissions when he made that application. There were meetings, there were letters, they had actually talked about that on a number of examples.
PN2914
And then we get to Mr Flanagan. Mr Flanagan, regrettably, was a very unimpressive witness. He was very big on detail in issues where cases supported him, but I was overwhelmingly surprised at the lack of interest Mr Flanagan had paid in these proceedings. He conceded he hadn't read the materials. He had no recollection of meetings he was copied into or attended.
PN2915
And, in fact, the most damning part of the evidence in all of it was that when TasWater gave the notice of concerns on 19 December, which is the pinnacle part that attracts the jurisdiction, Mr Flanagan supported an application and he hadn't even read TasWater's response. If you're taking about levels of disinterest and why they shouldn't be rewarded, that was the classic case.
PN2916
So we go back and we say they failed to comply with those recommendations. They provided misleading and inflammatory representations, and I will go through those in details. They absolutely provided proposals on a take it or leave it basis. And then here's where we get to this "best of the best" versus "no loss of conditions"; from 7 May to 16 December, best of the best; from 17 December to 4 February, no loss of conditions.
PN2917
Mr Ash, on 5 February to the current proceedings, had provided that document - and we will go through it again - the document provided on 4 December, amended on 8 December, and responded to by TasWater on the 11th; and 15 December, Mr Ash presented that document. He can turn around now and suggest it's no loss of conditions, but we recall everyone who came into the stand. When we read that out, and Mr Nelson read it out earlier today, what scope is it? Single agreement scope, best of the best conditions, reiterated all on their head once again.
PN2918
So quite confusing. We can see why we're having problems. We're going best of the best, no loss of conditions, and after the scope application has been made, back onto it again, no loss of conditions.
PN2919
THE DEPUTY PRESIDENT: But would it not be fair to say that the SBU's position went to no loss of conditions because of a lack of satisfaction of the best of the best claim as advanced by the document of 8 December, which is identical to the document of 5 February?
PN2920
MR DILGER: It's an important concession that if they made it, your Honour, they couldn't have a scope order, because the reality is scopes aren't meant to achieve outcomes. So if they don't find bargaining satisfactory, that's not an issue to grant a scope order. Scope is to deal with the conduct of bargaining. They all conceded - Mr Flanagan, after being pressed several times, admitted he had bargained hard and he was standing his ground.
PN2921
Mr Lambert, on the other hand, was more honest in his approach straight up and said, "Absolutely I'm not happy with want we want. We wanted more." Mr Crowley again talked about membership. He had come from a small organisation that had increased in members, and he talked in quite honest detail about how increasing that membership had meant he had increased his presence within the SBU and he had an obligation to ensure his members didn't lose out.
PN2922
I think if you have a look at all of the summary of it, it's all about not losing out, not about the conduct of bargaining and not about no loss of conditions. We had talked about- and Mr Crowley, without even being prompted, it was Mr Lambert who conceded that his best of the best wasn't just best of the best; it was Mr Lambert who conceded it was best of the best and a lot more. They all conceded they were pursuing a lot more.
PN2923
And, in fact, when you had a look at what they were talking about - and Mr Nelson brought it out - he said, "Absolutely, it wasn't just maintaining a regional scope, they were trying to attract all of those same entitlements in one particular region across three. Now, if that's the reality, if you're pursuing three identical terms all in three regions all at the one time, what other conclusion should you come to than a single agreement scope?
PN2924
Certainly when you have a look at what was being proposed even as late at the meetings with the CEPU which Mr Lambert asserted to, was quite capable of being agreed to. we were right back onto discussions about single agreement scope. So they've flip-flopped, and it's only to attract a jurisdiction.
PN2925
The other ones that I want you to have a particular look at in relation to the proposal on 15 December absolutely relate to what Peabody talks about. Peabody is proposition for the fact that the reality is for now you can't just simply say, "We reject that document." Peabody is proposition for the fact that now the requirement is you need to explain to the other side how even though your position is rejected - the proposal is rejected - the position in Peabody says you need to explain how that proposal might have been further recut so that an option would have been able to be - sorry - the opportunity would have been able to have been made to have achieved the agreement.
PN2926
If you have a look in relation to the meeting on 17 December - the ill-fated meeting - have a look at the conduct of that. You're got a pre-prepared meeting, a pre-prepared letter, which Mr Lambert freely asserts to. They engage in a pre-emptive and pre-prepared course of action. After the event they say, "Oh well, but if you would have agreed - if you would have agreed to our terms, we wouldn't have made the scope order application." If there's not any more clear evidence of an impasse created by terms and conditions and outcomes of bargaining than that, I would be amazed.
PN2927
The second part is they then, when they get that response - have a look at the timing between 17 December to 19 December, when TasWater put in the response to the application. So after being - and Mr Ash talked about this in detail, about being the frustration, and all the details of dealing with claims - they don't even bother to respond to what TasWater says. So on the 4th they put a proposal - and it's even better than that - they put a proposal on the 3rd which was capable of being responded to, that was their log of claims on 3 June; they put a proposal again on a take it or leave it on 24 July; they then put another one on 4 December, amended on the 8th; and the meeting on the 11th and the respondent on the 15th. And after all of that, on one letter they decide to go and make the application.
PN2928
They were itching to get to this scope order, your Honour, and that is after - and only after - they agitate the issue of scope on 17 December: 12 days, one letter; versus seven months of bargaining on the best of the best, and no action. The only person who is pursuing scope is Mr Crowley and Professionals Australia, and it's quite evident in all the materials. What's more evident is their continued insistence that when Mr Crowley is talking about scope, they were also talking about scope. Mr Crowley was very categorical. He was the only person in that basket dealing with that scope issue.
PN2929
Then if you have a look at all of the - so they're the good faith bargaining items that I will deal with. But if you have a look further in the 238(4)(b) factors, it's quite true, we all agree with the United Firefighters authority that it has got to result in the fairer or more efficient conduct of bargaining, or both. So it's a very difficult decision for you, your Honour. You've actually got to be positively persuaded. We just say on the evidence available it's not there. The current dispute was about terms and conditions.
PN2930
In fact, in the questioning by Mr Ash he continually mentioned it, "Your offer was rejected outright. Your dissatisfaction with adverse working conditions, HSM, on‑call, job security, and they're the key claims. You didn't make concessions. These are the items that will get you to an agreement. Put this document out and you will get a vote to yes. What you had put out is unacceptable to our members. We put out it in the form of a single EA - single scope BA. It represents what we say you will get over the line." It's nothing to do with the conduct of bargaining, that's all about outcomes, and there's a flurry of intent all around December.
PN2931
It has all stopped now because of the application, but also because when you have a look at the conduct of the parties, TasWater has been unequivocal, let's get back to the table. Mr Lambert, in that interchange with Ms Garrott around 12 to 26 March, he wants to come back to the state-wide meetings. And why that is so inconsistent and incongruous with the scope application is if he wanted to pursue a single agreement scope - sorry - if he wanted to pursue the three original agreement scope, he would have been seeking small regional meetings in the region. He's actually going back to exactly the same circumstance that they prosecuted from 7 May to 17 December.
PN2932
The other aspect is this question of scope has already been asked and answered. It has been asked and answered by Professionals Australia in their application on 20 June and in their application for bargaining orders on 3 October. This current application is too late. There is no doubt about it.
PN2933
All of the authorities talk about an early making of a scope order application. Seven months into bargaining, when the horse has bolted, is just too far a stretch to get you over the line that they would be reasonable, and that's because ultimately now what's going to occur is a massive triplication of process. All of those other decisions talk about duplication process; this scope order is ground-breaking in that this is actually seeking a triplication of process.
PN2934
Then when you have a look at it, the further ancillary aspects, but all go to that issue are that the responses and outcomes that TasWater are seeking have just not been taken into account. So we have the suggestions it's not in the legislation that you have to have a single scope agreement. Absolutely right, that's not in the legislation. But an organisation is allowed to have strategy, and you've got to look at the legislative intent.
PN2935
It could hardly be described that they decided to go from the councils down to the regional what corporations, down to TasWater for any other reason than consolidating those organisations down and down and down into a more broad-based organisation. The suggestion now that the intent was, "Oh, they could still depart," and there would have been no purpose for the creation of TasWater if that were the case.
PN2936
But more importantly - and it was the first question that I ask Ms Garrott this morning - was it's all about the integration of administrative systems, which would create opportunities for cost savings and reduce reporting and administrative effort. They're absolutely the words of the legislation, and it's quite clear you need to be able to get payroll efficiencies, and when you're applying terms and conditions of different employees, you just won't do that.
PN2937
Management efficiencies, same deal. Great example of somebody in Swansea being covered by the Southern region but working alongside someone in St Helens in the Northern region and applying two different sets of terms and conditions. Mr Ash made very much on, "get well, where do they go? What's their home base?" Their home base is irrelevant. You don't always work at your home base.
PN2938
You could all imagine when people would have been working in between that area, between Swansea and St Helens, and there they are, two employees getting two different pay rates, and somebody back and back office has got to manage that, calculate the two different pay rates, and somebody in management has got to manage all of that, applying to different instruments.
PN2939
Minority groups have been genuinely dealt with, absolutely. The arguments suggested that these having been taken in consideration is just so overstated. There have been numerous meetings, agendas are prepared, delegates have been there. Also it would be unfair to allow a single new organisation where new employees have never been subject to those regional distinctions, to now be put into those regional distinctions when they're joining a single organisation.
PN2940
The reality is this is conduct in the usual and unremarkable course of bargaining. They all mentioned it. All of the SBU witnesses all confirmed all of the terms and conditions that flowed through all of the meetings that we had; specifically went to terms and conditions that they would have seen in bargaining. Sure, agreement proposals are put, responded to; people are unhappy, people are happy; that's bargaining. It doesn't mean that you have to go and create a scope order to achieve it.
PN2941
I'm going to just quickly go through some - there are some findings of fact in there, your Honour, which relate to the matters before today's proceedings, but they're consistent with the materials. I just want to go through some important points on what you might look at with the authorities. In particular, we get to this: in Alinta it was absolutely - I'm on page 27, your Honour - in Alinta ‑ ‑ ‑
PN2942
THE DEPUTY PRESIDENT: Of your submissions?
PN2943
MR DILGER: Of those submissions, sir - sorry, page 26. So the first bit, it's not just that they have met, it's - must be "has meeting, is meeting the good faith bargaining requirements". Hamilton DP talked about that. You've got to look at the conduct in close proximity to the application being lodged, have particular regard to the behaviour in that period around December; and in particular, the conduct in relation to following Lee C's recommendations. And I will deal with all of those.
PN2944
In Alinta the commission said:
PN2945
There are however some dangers for the unions as bargaining representatives given that any communications or actions that are taken in their name, might be attributable to them and may impact upon their obligations under the Act.
PN2946
That was dealing with an SBU in a good faith bargaining application, and the commission is giving a very cautionary note to the participants of saying, "Be careful when you're an SBU because what one of you does looks bad for the others, and can be attributable for those others."
PN2947
So when you have a look at the behaviour of the SBU, on each occasion all of the witnesses absolutely confirmed that they had never at any stage revoked the authority for the SBU to act on their behalf. They had all confirmed it had authority to publish materials on their behalf. And even when Lee C on 18 July gave them the opportunity to revoke their authority, put your hand up and say I'm not longer in it, no-one did.
PN2948
So when you then have a look at the minutes, the materials, you have to be satisfied that those materials are made contemporaneously and they're accurate. In the absence of any alternative documents prepared by the SBU, you would have to prefer the documents prepared by TasWater.
PN2949
The commission recognises that some leeway has to occur when bargaining. What it specifically says in relation to the Super Retail Group - which denied a scope order application for the unions because they had failed to bargain in good faith - amongst other things it said - I will just read out the emphasis part:
PN2950
However I cannot overlook the inaccuracy of statements put out under its name. I have little doubt that the NUW would have responded with great vigour in claiming unfairness and inaccuracy, and breach of collective rights, if the respondent had informed employees about the NUW position in any similar manner.
PN2951
What that's proposition for is imagine the outcry if TasWater would have put out materials similar to what has been put in the materials here - and I will go through them - stating that the unions had behaved in the manner alleged that TasWater had behaved in.
PN2952
Mr Crowley acknowledged that he was absolutely informed in the meeting on 3 July 2014 that Ms Garrott was going to make a good faith bargaining application on behalf of TasWater. Despite that, the CEPU put out a statement which said, "We were informed by media release." It was absolutely incorrect.
PN2953
Further, it was also misleading on 3 July 2014 that the SBU were demanded to leave the building. It's clearly confirmed that the process involved the SBU asking if they could remain in the building for a further 10 minutes, and then they would leave. They were simply asked to leave after they had stayed in the building for 45 minutes and had overstayed their welcome.
PN2954
It was also in that part that you have to look at the undercurrents, because on the meeting on the 26th - and the minutes reflect this - they said, "If you don't agree to our proposal, we will start turning up with big numbers of delegates." And, of course, on 3 July, what happens? There's no seating for the TasWater personnel.
PN2955
It's also a well-known exclusion of good faith bargaining requirements that parties do not have to concede confidential information. Mr Crowley, to his credit, conceded that they had utilised confidential financial information of TasWater in a publication of Professionals Australia about the $1.1 million spent on consultants. To his credit he owned up to it, but you could lead yourself to no other conclusion than that use of confidential information is absolutely a breach of the good faith bargaining requirements.
PN2956
It was also a false and misleading statement for the CEPU to say that they hadn't received the classification structure in Lee C's recommendations. Such an allegation under cross‑examination, Mr Lambert agreed he had received the classification structure sent by Ms Garrott three days later. Mr Crowley also agreed that he had received that document, but he wasn't entirely happy with it, it didn't deal with all of the aspects of the higher classification levels; but when pressed further, he didn't seek any further correspondence from TasWater.
PN2957
Finally, again, reference to two prominent Tasmanian consultants witnessed reviewing a copy of TasWater organisation structure and openly discussing staff reductions. Made without foundation. No evidence presented as to how they could achieve that, and quite clearly incorrect.
PN2958
The commission also talks about ensuring that "take it or leave it" proposals are, of themselves, capable of being a breach of the good faith bargaining arrangement. And it says this - this is Linfox:
PN2959
It is a critical part of the bargaining process that the parties disclose their bargaining proposals, including responses to those proposals to the other bargaining parties. This is an essential element of collective bargaining. Collective bargaining is a process. It is not a unilateral act by one party to present a proposal on a take it or leave it basis.
PN2960
Mr Crowley and Mr Lambert conceded that their proposals on 31 July 2014, 11 December 2014 and 5 February 2015 were all take it or leave it proposals. And in that sense, simply rejecting the offer outright and saying it's not negotiable infringes on Peabody. What the commission requests is you need to do more than just simply reject it. You need to say, "This is how you need to change your current proposal to meet what we would require.
PN2961
Mr Washington and Mr Crowley both conceded that the failure to provide the log of claims was a significant barrier to TasWater to understand the SBU's claim, and they all agreed it detracted from the bargaining process. We know from the start that they were not ready at the time bargaining commenced with a notice of employee representational rights, and the SBU had taken significant amounts of time to get themselves ready. And when they finally provided the proposal, it was a log, it was incomplete, it didn't have wages, and it was consistently the reference of documents from TasWater seeking their adherence.
PN2962
On all occasions, even including Lee C's recommendations on 18 July, they were required to provide a track-changed, updated, comprehensive log of claims with wage costing. They failed on 22 May, 26 June, 9 to 15 July, and again on 18 July 2014. The commission recognises there's a bit of rough and tumble and it's okay for a bit of hard bargaining to go on, but the parties have to go into these with clean hands, and you should only be slow to interfere with legitimate tactics. All of what I've provided to you before would be illegitimate tactics and they wouldn't have ordinarily been expected to have been provided in the ordinary course of bargaining.
PN2963
Have a look at the comments again made by the SBU to the bargaining representatives at large in relation to Ms Garrott and members of the TasWater negotiating team on 24 June and on 15 July. Now, 15 July was that classic summary by Mr Harkins, who says to Ms Garrott, at large to people, "Who the fuck do you think you're talking to?" Mr Crowley admitted it was inappropriate, Mr Lambert also admitted it was inappropriate workplace behaviour as well; they all agreed the conduct was inappropriate.
PN2964
The second part was the discussions about Mr Nelson on day two of the lock-in; clearly designed to be at the detriment to the relationship of Mr Nelson and the TasWater bargaining representatives. They talked about a highly overpaid consultant who was doing nothing. Imagine the furore if TasWater would have put out the same publicity at large to the SBU on their Facebook page about Mr Crowley, Mr Lambert, Mr Gauld.
PN2965
Professionals Australia are conceded - sorry, in relation to the document that was written by Brian Thompson, Professionals Australia - Mr Crowley said it was not his document, but he also agreed that that document was highly inflammatory and had a real opportunity to have derailed bargaining.
PN2966
You get to Peabody again where it talks about this, and it says, in terms of good faith bargaining:
PN2967
It would render nugatory the imposition of good faith bargaining requirements and the making of a bargaining order if a party ... did not participate in the bargaining in good faith and in a genuine process of give and take , including the putting forward of matters which tentatively may indicate what could possibly be included
PN2968
That's what we're talking about here, the outright rejection of materials simply is not enough. It infringes on what Peabody says. It goes on to say - it required:
PN2969
Do more than simply respond by letter to the significantly revised proposal put by APESMA. At least, there was an obligation to meet and discuss the proposal and to explain in such meeting or meetings whether the proposal or a modified form of it might be acceptable to the company.
PN2970
It's identical to the situation we're talking about with that proposal put on 15 December 2014 by TasWater. There were numerous occasions where Ms Garrott had sought an actual response to that proposal, and the best that the CEPU could come up with is that Mr Ash told her it was rejected and re-provided her with the document that he had earlier put to her on 8 December 2014.
PN2971
There's also, in terms of one of the good faith bargaining requirements is that the bargaining representatives not act capriciously. Capricious is described as being:
PN2972
Sudden, unaccountable changes of mood or behaviour; fickle; inconstant; changeable; variable; unstable; volatile; impulsive; unpredictable; without rational basis; determined by chance.
PN2973
Mr Lambert conceded that on 27 May, despite giving Ms Cuthbertson till 30 May to respond to a proposal, that he unilaterally changed the bargaining meetings and moved it to Campbelltown. He conceded he hadn't waited for Ms Cuthbertson to respond, despite writing in the letter that he would wait for that response.
PN2974
If you have a look again in terms of capricious behaviour, think about that behaviour from 7 May where it's best of the best, to 17 December where it's no loss of conditions, and back again on 5 February 2015 to best of the best strategy. In relation again - I think I have talked about it - think about that capricious act in terms of the unpredictable nature on 17 December, receiving a response on 19 December, and then without any further response, making an application on 31 December 2014.
PN2975
If you have a look at Lee C's recommendations, both Mr Crowley and Mr Lambert conceded that they hadn't provided the agenda items as required by Lee C. The CEPU definitely confirmed their attendance, but other members of the SBU failed to provide their attendance for bargaining meetings. They consistently failed to provide the log of claims and did not track-change it as required.
PN2976
When you look at all of this behaviour, your Honour, you might say one of the behaviours by themselves was an aberration, but there's a consistent course of conduct throughout these negotiations where the members of the SBU are drawing an obvious line in the sand, where they are behaving in a manner which undermines collective bargaining and cannot be relied on as somehow attributing the blame to TasWater for the slow progress that bargaining has taken.
PN2977
If you have a look at the fair and efficient bargaining promotion requirements in 238(b), the main objects of that - and I've already talked in my outline about the legislative requirements - but the first part about all of it, where Mr Ash - I say incorrectly - says the impasse does not have to be about scope; it's quite clear it does have to be about scope, because otherwise the Fair Work Act is absolutely clear that you cannot require content to be made into an enterprise agreement.
PN2978
The good faith bargaining requirements absolutely prohibit a party being required to concede, or to include content into an agreement. And the commission, in BWA, says:
PN2979
It is quite plain from the wording of the Act that it is the conduct of bargaining which is to be considered and not the potential outcomes of bargaining.
PN2980
The CEPU concedes in its outline the issues in contention specifically relate to the terms and conditions of the three existing agreements. Bargaining issues can be dealt with quite clearly by anything other than scope. That's what bargaining orders are for. That's what good faith bargaining is meant to deal with. The objects of the Act are to allow the parties to negotiate about all of those matters.
PN2981
Mr Crowley, Mr Lambert and Mr Flanagan all conceded they had concerns about their members losing out or going backwards, and the lack of success for their preferred bargaining outcomes is the reason for this application, not because of the conduct of bargaining. If you have a look at the bargaining strategies of best of the best and no loss of conditions, they're absolutely consistent with bargaining being conducted in the usual course of what you would expect.
PN2982
You have a look at the offers. If this was about scope, we would have seen them join Mr Crowley and Professionals Australia, we would have seen them in the good faith bargaining application raise issues of scope, and we would have seen them attach themselves to Mr Crowley's section 240 application; but instead here is an organisation which is suggesting the conduct of bargaining is at issue, yet on the 4th, the 8th, the 11th and 15 December, and 5 February 2015, there are all proposals capable of acceptance; and surprise, surprise, your Honour, they all are in writing and contain single agreement scope.
PN2983
There is no piece of paper in any of the materials that you will see here today, save for the introductory comment on 7 May which says, "Oh, and by the way, we reserve our rights if things don't work out." But it's such a long bow to draw backwards from 17 December to say, "And we relied on it all the way," when all of the evidence absolutely shows they're pursuing terms and conditions, outcomes for bargaining, and not a three agreement scope in site.
PN2984
THE DEPUTY PRESIDENT: Mr Dilger, do you have any observations on why a number of senior union officials in this state who have given evidence in this matter have said that this is the most difficult bargaining exercise they've encountered, if it's other than for a bargaining process issue?
PN2985
MR DILGER: Mr Burles didn't. He said it was very similar to the original ‑ ‑ ‑
PN2986
THE DEPUTY PRESIDENT: Has Mr Burles been involved in this exercise?
PN2987
MR DILGER: Yes, he has. And Mr Flanagan - yes, I agree, Mr Flanagan said it had been difficult. But they've only done 20 meetings, your Honour. The original ones took 45. Mr Crowley conceded he has been involved in longer ones with both Aurora and Hydro; took much longer time to create. But all of the parties agreed we've just gone harder in the bargaining. That's what they all conceded. We've gone really hard on our bargaining on this.
PN2988
But that's not a reason to grant a scope order, that the parties are bargaining harder. That's what bargaining is for. The commission is generally loath to interfere with that when the parties are doing it. And now they're not getting what they want, you can't put up your hand and say, "Okay, we're out. Scope order, please." It has to relate to the conduct of bargaining.
PN2989
The CEPU and the SBU have had bargaining conduct in their hands - their own hands - the whole time. They've chosen who turned up, whether they gave logs of claims. Mr Crowley just admitted it has been harder. TasWater have held them to account, "Please put a detailed proposal to us. That's not enough." And it should have been unsurprising to him. The fact that he says it was more difficult doesn't mean it was impossible. And the fact that negotiations are still able to be achieved are also there.
PN2990
This is just too late. Notice of employee representational rights, 26 February; bargaining starts on 9 April, really starts on 7 May; and yet we have 20 meetings, and now they say the conduct of bargaining is not going so well. Look around at all the other decisions, the authorities, they occur after about three or four meetings. And United Firefighters, if you have a look at that, that's dealing with a conflict issue that we can't move on because we can't work out who to cover.
PN2991
This isn't trying to work out who to cover, this is working out, "I don't like the outcome that I get on that issue. I want more." They hadn't even costed their proposals. They don't know what more equals. If you have a look in there at the Australian Rail, Tram and Bus Industry v the Australian Rail Track Corporation, it says this:
PN2992
There appears to be an inescapable inefficiency attached to the pursuit of a scope order at a point in time after the enterprise bargainings have progressed.
PN2993
It goes on:
PN2994
There is a very strong prospect that any scope order which is not made at or shortly after the commencement of bargaining will fail to satisfy the requirement that it would promote the efficient conduct of bargaining.
PN2995
It couldn't be any clearer than that. They should have made the application. Mr Crowley had it worked out. On 20 May, a month after progress has not gone to his satisfaction relating to the senior employees, he's in the commission. You have a look at his letters, they're all driven to scope. All we've got here is some manufacture where they say, "We told you. We told you." But when pressed, no documentary evidence whatsoever. In fact, all the documentary evidence, all the proposals, all have single scope agreement. This would result in an unnecessary triplication of resources.
PN2996
BP Refinery is absolutely the authority which should be relied on, and it says this:
PN2997
Intuitively, bargaining for two agreements for a group of employees will involve a degree of duplication of process and negotiation and must be less efficient than bargaining for a single agreement to cover the same group.
PN2998
This is going to involve a triplication of process. It's going to involve the same personnel from TasWater being required to move to other places in three regions. We established through cross‑examination that in the South it will be everyone except the CFMEU; in the North-West it will be everyone except the CFMEU, the AMWU and the AWU. This is just Groundhog Day three times. We're just going to keep on going over the issues. There's no requirement for content. It will be, basically, start again and go back and travel to wherever you need to go for those meetings.
PN2999
The union has conceded video conferencing couldn't work. They said it's ineffectual. Yes, if TasWater needs to travel north or north west, they will either have to send their people that way, or as Mr Crowley suggested, train up some new people. If there's not a waste of resources - and he actually conceded it would be a waste - the parties have utilised Campbelltown. TasWater were dragged, kicking and screaming, to Campbelltown. No doubt about it. But when they got there, it became the most efficient use of everyone's time.
PN3000
Mr Crowley and Mr Lambert both conceded, "You're right. Everyone has to travel." Everyone is put to a similar detriment. But the cases also talk about that once you get into that process and once you start working through it, the problem is if you then move away from that process, you lose all of those gains that you've actually made, and that's the difficulty we have here.
PN3001
When you have a look at the views of the employers, it's absolutely right, Mr Ash was correct, it does say that the employees get the prima facie view, but he missed out this important part, "Unless" - like in United Firefighters - "there are particular circumstances in a given case that make the contrary conclusion appropriate."
PN3002
The CEPU, until this hearing on 18 May, have provided no evidence whatsoever on the views of the employees. You saw me put repeated requests to Mr Lambert and to Mr Crowley as to why they had not responded when Ms Garrott continued to ask Mr Crowley, "Where is this evidence?" The best Mr Crowley could come up to was, "It's confidential. I'm not going to send anything in writing." Come on. You ask for a document. This was given on the light of, "We will provide you information that will give you a yes vote, but you know what, we can't actually put it in writing for you." And why would they have even got to the point of asking for that information if it was never capable of being given?
PN3003
And then, of course, we arrive yesterday and Mr Crowley - a self-serving document if there ever was one. A document with one question that relates to the exact question of this application, and it's created on 30 March, three days after evidence had already been provided. If that's just not the most unsatisfactory piece of evidence, I don't know what is, because even Mr Lambert, when he was asked about it, and he was meant to be involved, said, "I don't know. You will have to ask Mr Crowley about that."
PN3004
That is the best they've come up with. The best they've come up with is, "We've got these two surveys: one, we've never seen and can't see; and (2) one that's produced after the application starts that has got one question and is an opt in process. On the contrary, TasWater goes out, gets an independent person, comes back with the survey answer. Those survey answers were not all predetermined. There were opt-in answers just as well, and none of it disclosed three regional agreement scope.
PN3005
When you have a look at the history of the negotiations - there's a good quote in the Commissioner for Public Employment, Catanzariti VP, and it says:
PN3006
Indeed, the history of negotiations indicates that over many years, successful agreements have been reached and this was the first occasion on which United Voice had drawn a line in the sand giving effect to deliberately slowing down the bargaining process.
PN3007
It's exactly what has occurred here. So when the bargaining gets hard, the union parties over here in the SBU have adopted entrenched positions, and they've adopted take it or leave it and outright rejection proposals.
PN3008
If you then go on to having a look at the previous positions, the history of the negotiations absolutely showed. Mr Burles gave unchallenged evidence regarding the previous regional corporations.
PN3009
In terms of the minority and regional interests being taken into consideration, the commission says this:
PN3010
It is generally preferable to have a single bargaining unit and a single enterprise agreement for all employees.
PN3011
It goes on to say:
PN3012
It would be inconsistent with the scheme of the Act to shave off a section of employees into a separate agreement each and every time the bargaining representatives could not reach agreement on the content of a proposed replacement agreement for those particular employees. The inability to reach agreement in negotiation is not unusual, but that does not mean that bargaining is not proceeding fairly and efficiently.
PN3013
What it means in this circumstance is one of the parties has thrown the baby out with the bathwater, turning around saying, "Throw our hands up. We need a scope order." Haven't tried a bargaining, and said, "Well, a bargaining order can't give us our content either." I agree, it can't, but it could have brought the parties closer together in a process which did not require the resources such as this and would not have the significantly damaging effect to the organisation that this would.
PN3014
The CEPU and the SBU have conflated unfairness and self‑interest, and it's because - it says again in the commission in Patterson:
PN3015
To begin with, it is not unusual for particular self‑interest to be subject of consideration in a bargaining unit, and bargainers often have to reach accommodation between those self-interested groups.
PN3016
The SBU needed to sort out its own dirty laundry. If the SBU had problems internally, it's not TasWater's fault. Todd Lambert said the SBU was falling apart. That's not TasWater's fault. They have to work out how those arrangements are worked out.
PN3017
Mr Ash talked about commission decisions where the relative unfairness of the minorities were taken into consideration. I have equally a number of authorities who say it actually doesn't matter; in fact, it's normal. And they say:
PN3018
There's no requirement to determine unfairness merely because on sub-group has fared relatively worse than another.
PN3019
All the parties agreed, bargaining, you win some, you lose some. Some you win more, some you lose more, and some you might be you reach agreement, but you not might be as happy as what you otherwise might be. But it talks about that it's highly unusual for there to be no disparity, and it basically says?
PN3020
Enterprise bargaining often involves identifiable groups who may represent a minority with sectional interests. There are often dissatisfied minorities. Indeed, sometimes individuals who reluctantly have to accept the outcome determined by a majority who vote in support of an enterprise agreement.
PN3021
It also goes on in another decision in ANZ Stadiums, it says:
PN3022
The mere fact that one subgroup of the group of employees covered by an agreement is small in number, even much smaller than another subgroup cannot, of itself, lead to a conclusion that the group was chosen unfairly.
PN3023
I note Mr Ash talked about that case, and I also want to just mention that case in that those decisions - that ANZ decision was not taken in terms of a scope order. In fact, it was actually made in relation to the application for an approval of an agreement. What Lawler VP was actually talking about - and it's significant in this one - at that case the union was actually putting up their hand saying, "It's unfair. You shouldn't approve the agreement," and what Lawler VP said was, "If you're upset about this now and who got chosen, you should have made a scope order.
PN3024
And he also talks about in that - and Mr Ash said it was obiter - in my submissions actually said, "Yeah, and you do it at the start of the commencement of bargaining." And that's why that's authority for that proposition. But if you have a look at the differing terms and conditions, all of the union personnel before us all agreed that differing terms and conditions were unsatisfactory and they had all campaigned against them for one reason or another. All that they're not seeking to do is further entrench that position.
PN3025
They have suggested - Mr Crowley suggested - he said, "What we want to do, we want to roll over this agreement and we want to work on the single scope next time." If that's the case, just work on the single scope now. All of those interests are absolutely capable of being dealt with in a single agreement scope. It just requires some more give and take.
PN3026
The bargaining meetings were, I say, normal and unremarkable, and Mr Burles agrees, and I think Mr Nelson also agrees. It says this in BRB Modular, which is the most recent full bench case on scope, it says this:
PN3027
Claims have been made, meetings have been held, explanations have been provided for the union s log of claims, negotiation has occurred, many, many claims have been rejected (as is the Respondent s entitlement to do so), the union is unhappy (maybe even frustrated) not to have made greater gains - it has been a relatively normal set of circumstances.
PN3028
No-one is saying it hasn't been difficult, but it has to be about the conduct of bargaining and has to be about scope. And in this circumstance what they're progressing is just far too late. I've got some other materials in there, your Honour, but I won't go into it.
PN3029
I will just leave you with the final bit and tie back in with my analogy that I gave you last time, and it's effectively this: the family is going out to dinner, we've all agreed we will go out to a restaurant where on that menu you have a number of options. You can absolutely choose out of a whole range of options, and some you might like, and some you might not like, but amongst that, there will be some option that relatively, you would be happy to go out to dinner.
PN3030
What the unions have done in this application, they've waited till we've ordered the first course and then they've said to us, "I don't like my pasta. I want to go somewhere else. I want to go to Da Angelos." The other family member says, "I don't like my fish. I know I'm having fish, but I would like a better fish. I would like to go down to Muirs." And then the third person in the group says, "Yeah, I wanted a steak. Yeah, I've got steak, but I wanted a better steak. I'd like to go to where I normally go to get steak, and that's the Ball and Chain."
PN3031
The reality out of all of that is parties have agreed to pursue to go out to dinner. They're already out; we're already in the process. One of the parties is saying right now, "Look, I know it's not exactly what you want, but there are plenty of options in here, you just need to look a little bit harder, because if we have to stop now, we have to do all of the same processes all again. I have to take you all back home, we have to go out to the separate restaurants, we have to commit resources to going to that. We might not even like it, and we're again further and further away from the one thing that we were meant to do at the start, go out to dinner as one TasWater." Thank you, your Honour.
PN3032
THE DEPUTY PRESIDENT: Thank you, Mr Dilger. Mr Ash, do you have anything in response?
PN3033
MR ASH: I have nothing in response, your Honour, aside from saying that I think it's important with this case that we look closely at the evidence. I don't believe much of what Mr Dilger says is supported by it, but I don't make any further submissions.
PN3034
THE DEPUTY PRESIDENT: Not surprisingly, I'm going to reserve my decision, and I will give you a written decision as quickly as possible, but there is a mountain of material to go through, so it won't be next week, but I will make sure it's got the highest priority I can give it. The commission stands adjourned.
ADJOURNED INDEFINITELY [4.21 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
ALEXANDRA JANE GARROTT, SWORN.................................................. PN2209
EXAMINATION-IN-CHIEF BY MR DILGER.............................................. PN2209
EXHIBIT #AG WITNESS STATEMENT OF ALEXANDRA GARROTT DATED 27/03/2015 WITH ANNEXURES TW1 TO TW44......................................................................... PN2245
EXHIBIT #AGR WITNESS STATEMENT OF ALEXANDRA GARROTT DATED 17/04/2015 WITH ANNEXURES TW45 TO TW72........................................................... PN2246
CROSS-EXAMINATION BY MR ASH........................................................... PN2263
RE-EXAMINATION BY MR DILGER.......................................................... PN2636
THE WITNESS WITHDREW.......................................................................... PN2666
IAN ANDREW NELSON, AFFIRMED.......................................................... PN2671
EXAMINATION-IN-CHIEF BY MR DILGER.............................................. PN2671
EXHIBIT #IN WITNESS STATEMENT OF IAN NELSON WITH ANNEXURES DATED 27/03/2015............................................................................................................................... PN2687
EXHIBIT #INR IN REPLY STATEMENT OF IAN NELSON.................... PN2688
CROSS-EXAMINATION BY MR DILGER................................................... PN2814
THE WITNESS WITHDREW.......................................................................... PN2822
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/344.html