AG2015/2356, Transcript of Proceedings [2015] FWCTrans 605 (27 October 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

PN1

THE DEPUTY PRESIDENT: Yes, good morning, Mr Gee. You're seeking permission to appear for the applicant?

PN2

MR GEE: Yes, I am, your Honour.

PN3

THE DEPUTY PRESIDENT: Yes, and Mr Dwyer for the CEPU?

PN4

MR DWYER: Yes, your Honour, and I seek permission to appear.

PN5

THE DEPUTY PRESIDENT: All right. Do you need permission?

PN6

MR DWYER: I believe I do. I'm not an employee of the union at this stage.

PN7

THE DEPUTY PRESIDENT: I see.

PN8

MR DWYER: Or at any. I was recently. So I seek permission.

PN9

THE DEPUTY PRESIDENT: So you're seeking permission to appear as a paid agent?

PN10

MR DWYER: Yes.

PN11

THE DEPUTY PRESIDENT: All right.

PN12

MR DWYER: As an agent. I know it's listed but I'm appearing as an agent.

PN13

THE DEPUTY PRESIDENT: I see. Yes, all right.

PN14

Is there any objection to permission in either case?

PN15

MR GEE: No, there is not, your Honour.

PN16

THE DEPUTY PRESIDENT: Yes, thank you. I'm satisfied having regard to the complexity of the matter that the matter will be dealt with more efficiently were to grant you permission, and I do so in both in case.

PN17

Yes Mr Gee?

PN18

MR GEE: Thank you, your Honour. I've had a brief discussion with Mr Dwyer earlier this morning and thought we'd start with some housekeeping to try and sort through some of the complexity, as it were.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR GEE: And it may assist your Honour to know that we've had some discussions and I want to, because as the applicant we go first, and say that by email on 24 August we put or we identified the documents that the applicant would be relying on in relation to this matter and the documents that would not be relied on.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR GEE: I won't say anything about the documents not relied on.

PN23

THE DEPUTY PRESIDENT: Yes, you're not relying on the undertaking. I understand that.

PN24

MR GEE: Yes, since that time we have prepared and filed some additional material.

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR GEE: And I just wish to note that I'll be turning to shortly now(sic) that since that email of 24 August we've prepared and filed a further statement of Mr Andrew Fenech.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR GEE: On 25 August.

PN29

THE DEPUTY PRESIDENT: Yes, I have that.

PN30

MR GEE: And there are two short written submissions, one dated 24 August and the second dated 25 September.

PN31

THE DEPUTY PRESIDENT: Yes, I have both of those.

PN32

MR GEE: And attached or referenced in the latest submissions are three emails documents which I'll turn to in due course.

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR GEE: Those email documents, there's one bundle dated 11 March, one bundle dated Friday 13 March 2015 and the third and final bundle dated Monday 16 March 2015.

PN35

THE DEPUTY PRESIDENT: Just bear with me.

PN36

MR GEE: Now those are the documents - - -

PN37

THE DEPUTY PRESIDENT: Just bear with me, Mr Gee. I have the 13 March 2015 bundle. I have a bundle which is 8 September 2015 - sorry, I see what has happened. So the second bundle, there's an email from Mr Kudray it seems to you and then below that is the actual email. So 11 March.

PN38

MR GEE: Yes.

PN39

THE DEPUTY PRESIDENT: Yes, I see that, and the other one is 16 March is that right?

PN40

MR GEE: Yes, that's right.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MR GEE: Yes, they are - just to clarify a point, Mr Kudray is no longer in the employ of the applicant so those emails were sent from his email profile but not by Mr Kudray.

PN43

THE DEPUTY PRESIDENT: Yes. Yes, all right.

PN44

MR GEE: But those are the documents that the applicant will rely on and refer to briefly this morning.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR GEE: I want to say in addition that since the application was first filed on 2 April this year the applicant has shut down its operations in Western Australia for reasons unrelated to these proceedings, as a consequence of which the three WA employees are not available for either party or the Commission in this matter and Mr Kudray - - -

PN47

THE DEPUTY PRESIDENT: Presumably they've returned to their homes overseas?

PN48

MR GEE: Or obtained alternative employment.

PN49

THE DEPUTY PRESIDENT: Yes.

PN50

MR GEE: We don't know. We've been unable to locate them, your Honour.

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR GEE: Mr Kudray we have been able to locate. I appreciate I'm making a submission from the Bar table but I say that Mr Kudray is simply unwell and not able to give evidence in any form at any proceeding at this point in time.

PN53

THE DEPUTY PRESIDENT: Right.

PN54

MR GEE: And I will be making a very short submission along a Jones v Dunkel principle that there ought be no adverse inference taken due to the absence of any evidence for three WA employees and Mr Kudray and that will be - - -

PN55

THE DEPUTY PRESIDENT: When did the cessation of the WA operations occur?

PN56

MR GEE: At the very beginning of August, I'm informed, your Honour. Now the absence of that evidence will be a factor that your Honour will be required to take into account when considering the totality of the evidence put forward by the applicant and the concerns made by the respondent. I will say further submissions about that in the appropriate time. Finally in regards to housekeeping matters, it seems - and I've invited Mr Dwyer to respond to this before we get into the evidence - that there are a slightly narrower range of issues to be determined now.

PN57

When the union put in their - or pardon me, the respondent put in their material identifying their concerns in relation to the application one of the concerns that had been raised was whether or not the three employees in Western Australia had had access to the relevant documents for a period of at least seven days. It is my understanding that that concern is no longer pressed by the respondent due to the emails that I've just taken your Honour to, and I would like Mr Dwyer to confirm whether that was the case or not.

PN58

THE DEPUTY PRESIDENT: Yes, in any event it's arguable that the requirements of section 180(2) require one of two things, either the relevant employees have had access throughout the access period to a copy of the agreement and any incorporated materials, and secondly that during the access period they were given a copy. So on one view if on the last day of the access period the employees are given a copy then that complies, notwithstanding that they haven't had access throughout the period because it's an either or.

PN59

MR GEE: Yes, your Honour. I would concur with that reading of the provision but all I say is that - - -

PN60

THE DEPUTY PRESIDENT: It's not an issue.

PN61

MR GEE: It's no longer an issue in these proceedings. There remains an issue to be determined about whether or not the three employees in WA understood what document they were being asked to vote on or not.

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR GEE: That remains an issue.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR GEE: And the concern about the manner in which those three employees voted, whether there was any intimidation or not, is also an issue.

PN66

THE DEPUTY PRESIDENT: Sure. Is Mr Fenech on the line?

PN67

MR GEE: Not yet.

PN68

THE DEPUTY PRESIDENT: Not yet, okay.

PN69

MR GEE: He's awaiting a call.

PN70

THE DEPUTY PRESIDENT: Perhaps I'll then raise an issue which I have which the parties haven't raised, and it arises from the evidence and I'm just putting this so that you can deal with it if necessary during your examination of Mr Fenech. Mr Fenech says in his - or will give evidence at paragraph 12 of his statement, the unsigned statement which has been filed, that he participated in a telephone call with Mr Kudray and the three employees, and it's during that telephone discussion that an explanation of the terms of the agreement was given to employees and that was before they voted.

PN71

MR GEE: Yes.

PN72

THE DEPUTY PRESIDENT: It's not in dispute that voting commenced on the 23rd?

PN73

MR GEE: It's not.

PN74

THE DEPUTY PRESIDENT: And so that it's on the 23rd that the employer requested employees to approve the agreement or on one reading of section 180(1) the requirements in that section must all occur before the employer makes the request under 181(1) that employees approve the agreement. One of those matters is that under subsection (5):

PN75

The employer must take all reasonable steps to ensure that the terms of the agreement and the effects are explained to employees.

PN76

i.e. before the request is made. I can't see anything in the agreement that any other step was taken before 24 March to explain to the WA employees the terms of the agreement.

PN77

MR GEE: Yes, your Honour has hit on exactly one of the issues that is going to have to be determined in the absence of evidence from Mr Kudray.

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MR GEE: Now Mr Fenech's evidence in his written statements is that - I will paraphrase the sum effect of that evidence is that he emailed to Mr Kudray the final form of the agreement.

PN80

THE DEPUTY PRESIDENT: Yes.

PN81

MR GEE: And his expectation was that Mr Kudray would meet with the employees.

PN82

THE DEPUTY PRESIDENT: Yes.

PN83

MR GEE: To explain the terms and remind them or inform them of the time and place of the vote.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR GEE: Before it was to happen.

PN86

THE DEPUTY PRESIDENT: And this is the email of 13 March?

PN87

MR GEE: That's one of them and one that we rely on absolutely, yes.

PN88

THE DEPUTY PRESIDENT: Which is the one that attaches the proposed enterprise agreement and also advises that there be a vote on the - - -

PN89

MR GEE: Yes.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR GEE: And if your Honour turns to the email from Adam Kudray on Wednesday 11 March in that bundle.

PN92

THE DEPUTY PRESIDENT: Yes.

PN93

MR GEE: It's an email to Mr Ulysses Panes, that's P‑a‑n‑e‑s, Gill Panes and Jason Lanuza, L‑a‑n‑u‑z‑a. I'm instructed that those are the names of the three WA employees.

PN94

THE DEPUTY PRESIDENT: Yes, sorry where do I find that?

PN95

MR GEE: It is the first of the emails which are attached to our last submission.

PN96

THE DEPUTY PRESIDENT: Okay, yes it wasn't in the appeal book previously?

PN97

MR GEE: No, it wasn't.

PN98

THE DEPUTY PRESIDENT: No.

PN99

MR GEE: No.

PN100

THE DEPUTY PRESIDENT: Okay.

PN101

MR GEE: And you'll see in that email - does your Honour have that?

PN102

THE DEPUTY PRESIDENT: Yes.

PN103

MR GEE: Yes, the second paragraph and I quote:

PN104

I will schedule a face to face meeting with you all for the coming week...

PN105

et cetera, et cetera.

PN106

THE DEPUTY PRESIDENT: Yes.

PN107

MR GEE: Now that is a business record that we say should provide the Commission with some comfort as to the issue your Honour has just identified.

PN108

THE DEPUTY PRESIDENT: Yes. It goes some way although I make the point that the 11th was before the 13th.

PN109

MR GEE: Yes.

PN110

THE DEPUTY PRESIDENT: And it was responsive to an earlier email which obviously attached the agreement.

PN111

MR GEE: Yes.

PN112

THE DEPUTY PRESIDENT: And then there's a 13th email which says in the beginning:

PN113

Sorry people, please disregard previous email.

PN114

MR GEE: Yes. Yes and - - -

PN115

THE DEPUTY PRESIDENT: But you'll be saying presumably that the meeting at least on the face of the material occurred some time before the scheduled vote and not on the 24th?

PN116

MR GEE: Yes, and in the absence of Mr Kudray being able to give evidence that's as high as I can put it.

PN117

THE DEPUTY PRESIDENT: Yes, I understand.

PN118

MR GEE: And then the final of the three emails in that bundle which while we're here, your Honour, we may as well look at it.

PN119

THE DEPUTY PRESIDENT: Yes.

PN120

MR GEE: There's an email from Mr Kudray on Monday 16 March to the same three employees.

PN121

THE DEPUTY PRESIDENT: Yes, I see.

PN122

MR GEE: Where he makes certain representations about what will happen in the following week.

PN123

THE DEPUTY PRESIDENT: Yes.

PN124

MR GEE: And it post-dates the 13 March email.

PN125

THE DEPUTY PRESIDENT: Yes. Yes, I see that. Thank you

PN126

MR GEE: So this exchange really encapsulates the difficulty the parties have with the inquiry that the Commission must undertake.

PN127

MR GEE: Yes, I understand.

PN128

MR GEE: Now I was identifying those matters that remain in dispute and those that don't. As we understand it there is no longer a dispute about access to the document. There remains a dispute about - - -

PN129

THE DEPUTY PRESIDENT: What about clause 16 of the actual agreement which deals with policies and procedures, and it provides that:

PN130

Employees shall at all times abide by operational policies...

PN131

et cetera:

PN132

Employees are required to comply with the policies.

PN133

that the policies don't form part of the contract of employment:

PN134

NTA policies and procedures will be made available to employees on request.

PN135

On one view those policies are incorporated into the agreement.

PN136

MR GEE: Your Honour, I'll need to take instructions on that.

PN137

THE DEPUTY PRESIDENT: Yes, you will.

PN138

MR GEE: But there's the decision of Marshall J in the Yarra Trams case in the Federal Court which would be against that proposition that that formulation of words in clause 16 would not amount to an incorporation.

PN139

THE DEPUTY PRESIDENT: I'm simply raising it as an issue.

PN140

MR GEE: Thank you.

PN141

THE DEPUTY PRESIDENT: You can address me on it because obviously I need to be satisfied relevantly.

PN142

MR GEE: Yes.

PN143

THE DEPUTY PRESIDENT: All right.

PN144

MR GEE: Thank you, your Honour. Now the respondent makes some brief submissions about the undertaking. We don't rely on the undertaking. I don't think we need to traverse that issue today.

PN145

THE DEPUTY PRESIDENT: No.

PN146

MR GEE: There is a concern raised by the respondent about the manner of the vote and the voting method which remains in dispute, and there is an issue about the notice of employee representative rights which has been outlined in the respondent's submissions and while the respondent doesn't concede the point, I think we would say that there is nothing more to be said about that issue other than what has been addressed in the submissions by the parties.

PN147

There is an issue about whether or not an employee in Queensland was issued with the notice. That will need to be addressed with evidence from Mr Fenech this morning and, unless Mr Dwyer corrects me, I believe that that deals with the range of issues that remained in dispute between the parties. Before I make an application to the Commission to approve the agreement I might ask Mr Dwyer to respond to those matters.

PN148

THE DEPUTY PRESIDENT: Yes.

PN149

Yes Mr Dwyer?

PN150

MR DWYER: Yes, your Honour. I'll be very brief. Some of the issues get conflated but I'll also try to identify them as issues. I brought it down to five which I think my colleague agreed. One, there will be some issues over the notice of employment rights(sic). We've dealt mostly with that. The copy - the second access, the access issue, there are a couple of issues arise around that. The third one, the notice of the approval process, that is how the vote will be conducted and those sort of things - - -

PN151

THE DEPUTY PRESIDENT: This is date, place and method of voting?

PN152

MR DWYER: The fourth issue is terms to be explained to people, and the fifth one was the notice of the application to the Fair Work Commission, and I'd say no more about that other than what we've got in our written submissions. In terms of my friend asked me to put to you about those three emails, we presume they're put forward on the basis they're business records and we say no more about that. But on that issue, as you've seen from the evidence another agreement was circulating in WA and we'll need to address you on those issues.

PN153

THE DEPUTY PRESIDENT: Yes, all right.

PN154

MR DWYER: I know I've been very brief.

PN155

THE DEPUTY PRESIDENT: No, that's fine.

PN156

MR DWYER: But I hope that has assisted.

PN157

THE DEPUTY PRESIDENT: Yes Mr Gee?

PN158

MR GEE: Thank you. Your Honour, the applicant has applied for the approval of an enterprise agreement. An application was filed by the applicant on 2 April in relation to that application. It is before - - -

PN159

THE DEPUTY PRESIDENT: Do you realise that since the matter has been allocated to me that this makes my figures of dealing with applications for agreements expeditiously look rather poor?

PN160

MR GEE: I don't say that that is caused by the Commission or the respondent at all.

PN161

THE DEPUTY PRESIDENT: No, no.

PN162

MR GEE: We rely on the information contained in the application, that's the F16 dated 26 March, the F17 statutory declaration of Mr Andrew Fenech dated 25 March, and the material that accompanied that. In addition we rely on the statutory declaration of Mr Greg Egan which was signed on 23 April 2015. It's located at page 86 of the appeal book, and we rely on the statutory declaration of Mr Ian Richter signed on 28 April 2015 at appeal book 87. Now I'd seek to formally tender those documents. I've dealt with them in a lump, so I'm assuming that was okay?

PN163

THE DEPUTY PRESIDENT: That's fine.

PN164

MR GEE: So the first document is the F16. If it's convenient it's included at pages - it starts at page 1 in the appeal book.

PN165

THE DEPUTY PRESIDENT: Yes.

PN166

MR GEE: At the exhibit A1.

PN167

THE DEPUTY PRESIDENT: Yes, I have that. Sorry, you actually want me to mark them? I won't mark - - -

PN168

MR GEE: Well if - I'm sorry.

PN169

THE DEPUTY PRESIDENT: - - - the application. I won't mark the statutory declaration that accompanies the application or the documents which are attached which I understand to be the names of bargaining representatives as attachment 1 and the notice of employee representational rights.

PN170

MR GEE: Yes.

PN171

THE DEPUTY PRESIDENT: They're documents that are filed with the application and I won't mark those.

PN172

MR GEE: Yes.

PN173

THE DEPUTY PRESIDENT: As to the statutory declarations I will mark those. Just bear with me. The first statutory declaration is - - -

PN174

MR GEE: At page 86 of the - - -

PN175

THE DEPUTY PRESIDENT: Yes, I have that. It's of Mr Greg Egan which is a five paragraph statutory declaration declared on 23 April 2015. Is there any objection to the tender of that statutory declaration?

PN176

MR DWYER: Only in the sense - I did discuss this with my colleague - obviously the two statutory declarations are by people who won't be able to be cross‑examined. I've looked at it. The matters really are covered by other evidence coming to you and in terms of efficiency and the usefulness of cross‑examining I'd say they're in the appeal book. I have a technical objection but I'd ask that they be read in the light of other evidence that may come.

PN177

THE DEPUTY PRESIDENT: Yes, I understand.

PN178

MR DWYER: Which overlaps that information. I think it's the most efficient way of dealing with it, even though technically I could object to it.

PN179

THE DEPUTY PRESIDENT: All right. Thank you. I'll mark the statutory declaration of Greg Egan declared on 23 April 2015 as exhibit 1.

EXHIBIT #1 STATUTORY DECLARATION OF GREG EGAN DECLARED ON 23/04/2015

PN180

THE DEPUTY PRESIDENT: And is your position the same in relation to Mr Richter's?

PN181

MR DWYER: Yes, your Honour.

PN182

THE DEPUTY PRESIDENT: Thank you. I'll mark the statutory declaration of Mr Gordon Richter comprising three paragraphs declared on 28 April 2015 as exhibit 2.

EXHIBIT #2 STATUTORY DECLARATION OF MR GORDON RICHTER DECLARED ON 28/04/2015

PN183

MR GEE: Now I have two statements of Mr Andrew Fenech which I will put through Mr Fenech at the time we call him. He has copies of those. I would take your Honour to page 115 of the appeal book. There's an email from Mr Dwyer in his formal capacity as an official of the respondent and I don't wish to have it marked, I simply wish to draw your Honour's attention to paragraph 8 of that email where Mr Dwyer advises that the respondent will not seek to be covered by the agreement. That's all I wish to say on that.

PN184

THE DEPUTY PRESIDENT: Yes.

PN185

MR DWYER: Perhaps, your Honour, should you be minded to approve the agreement my instructions are that the union would want to be covered by it at this stage.

PN186

THE DEPUTY PRESIDENT: Well in that case the union should complete the appropriate form and lodge it.

PN187

MR DWYER: Yes.

PN188

THE DEPUTY PRESIDENT: And if I don't approve the agreement then it goes nowhere.

PN189

MR DWYER: No.

PN190

THE DEPUTY PRESIDENT: And if I approve the agreement then I have notice of the fact and I'll note it in my decision. But once I make a decision it's too late, so.

PN191

MR DWYER: I appreciate that. That's why I did - - -

PN192

THE DEPUTY PRESIDENT: Yes.

PN193

MR DWYER: I did address my mind to it and it was in my submissions I'd make to you today.

PN194

THE DEPUTY PRESIDENT: Yes, there's a form in which notice can be given.

PN195

MR DWYER: We'll get - - -

PN196

THE DEPUTY PRESIDENT: The form is notionally titled "Organisation" and I think it supports - - -

PN197

MR DWYER: Yes, I think it's F - something like that, yes.

PN198

THE DEPUTY PRESIDENT: Yes, in support of an application. But you can indicate in the form, from memory, that you don't agree with the matters set out in the statutory declaration, but nevertheless indicate that you wish to be covered.

PN199

MR DWYER: Yes, which is why our original emails seem to be contradictory, to be seeking to be covered by an agreement when we were opposing it at that stage.

PN200

THE DEPUTY PRESIDENT: Yes, I understand.

PN201

MR DWYER: Thank you.

PN202

MR GEE: Now you can stop me if you like, your Honour, but the appeal book omitted one of the attachments to the original application by the applicant. It's only a one page document.

PN203

THE DEPUTY PRESIDENT: I see.

PN204

MR GEE: It's a document required in the F17 which explains the classification structure. For completeness I'll just seek leave to tender that.

PN205

THE DEPUTY PRESIDENT: Yes, all right. Thank you.

PN206

MR GEE: Will that be exhibit 3, your Honour?

PN207

THE DEPUTY PRESIDENT: What might be most convenient is if I simply make an order allowing you to vary the application to include attachment 2 as part of the application.

PN208

MR GEE: Sorry, I've misled your Honour. On my instructions that document was included with the original application which was filed by way of email on 2 April.

PN209

THE DEPUTY PRESIDENT: All right, but was omitted from the appeal book?

PN210

MR GEE: But it was omitted from the appeal book.

PN211

THE DEPUTY PRESIDENT: Okay, if it's part of the original application, and I notice that the attachment 1 is the bargaining representative so this will be attachment 2. I'll just include it there.

PN212

MR GEE: Thank you.

PN213

THE DEPUTY PRESIDENT: For the purposes of identifying it, I will simply note that for the purposes of the appeal book if parties want to refer to that, it can be page 7A.

PN214

MR GEE: It's the question of part 3.3 of the F17 calls for the attachment of a table identifying the translation of the classifications. It forms part of the application in that sense.

PN215

THE DEPUTY PRESIDENT: So this is for the purposes of assisting the assessment of the better off overall test.

PN216

MR GEE: Yes.

PN217

THE DEPUTY PRESIDENT: There's no issue with that better off overall test.

PN218

MR GEE: None has been raised, and we say there is none, your Honour.

PN219

THE DEPUTY PRESIDENT: Yes.

PN220

MR GEE: I will seek to tender the emails that have been attached, as my friend correctly puts, as business records. I am in your Honour's hands as to whether we do it as a bundle or separately.

PN221

THE DEPUTY PRESIDENT: They're separated, so I will mark them separately. Any objection?

PN222

MR DWYER: No, your Honour.

PN223

THE DEPUTY PRESIDENT: Thank you. I will mark them in chronological order commencing with the oldest. The first bundle of documents disregarding the forwarding email commencing with an email from Mr Kudray to other persons, including a copy to Mr Fenech, dated 11 March 2015, I'll mark exhibit 3.

EXHIBIT #3 EMAIL FROM MR KUDRAY TO OTHER PERSONS DATED 11/03/2015

PN224

THE DEPUTY PRESIDENT: The email from Mr Fenech to various parties and documents attached thereto, dated 13 March 2015 is exhibit 4.

EXHIBIT #4 EMAIL FROM MR FENECH TO VARIOUS PARTIES WITH DOCUMENTS ATTACHED DATED 13/03/2015

PN225

THE DEPUTY PRESIDENT: The final email, disregarding the forwarding email, commencing with a bundle of documents attached to an email from Mr Kudray to various persons including Mr Fenech, dated 16 March 2015 is exhibit 5.

EXHIBIT #5 EMAIL FROM MR KUDRAY TO VARIOUS PERSON WITH DOCUMENTS ATTACHED DATED 16/03/2015

PN226

MR GEE: Thank you, your Honour. At this time I'd like to adduce the evidence of Mr Andrew Fenech, who I understand is available by telephone.

PN227

THE DEPUTY PRESIDENT: We'll get him on the phone.

PN228

MR DWYER: Your Honour, just a technical point.

PN229

THE DEPUTY PRESIDENT: Yes.

PN230

MR DWYER: We've also put some documents forward in our submissions. We'll be tendering them in due course. If we need to go to them I'll obviously raise them with you.

PN231

THE DEPUTY PRESIDENT: A number of them appear to be - I'm assuming these are matters that were the subject of - or attached to submissions made by the CEPU at first instance and they are also in the appeal book. To the extents that you want to introduce them and they are able to be introduced through Mr Fenech, I suggest that you do it.

PN232

MR DWYER: We will do it, and I will ask for them to be tendered at the appropriate stage.

PN233

THE DEPUTY PRESIDENT: Yes. But obviously, to the extent that they are already incorporated in some of the other material, it is not necessary to do that.

PN234

MR DWYER: Further, I don't think they are controversial, the documents I've supplied.

PN235

THE DEPUTY PRESIDENT: The documents aren't controversial, but their effect is.

PN236

MR DWYER: Of course. In terms of tendering them, I don't think they are controversial. The other thing that's occurred to me, it may or may not arise, the issue of Browne v Dunn in the - as witness statements are being tendered, I understand the practice might be that we may not rely strictly on Browne v Dunn. Where I think it is, if in cross-examination it comes up, I'll identify it as best I can, but I don't know if you wish to say anything about that.

PN237

THE DEPUTY PRESIDENT: Well, I think as a matter of - because there weren't reply statements filed, the course of events was that Mr Fenech filed his witness statement.

PN238

MR DWYER: Yes.

PN239

THE DEPUTY PRESIDENT: Then you are seeking to rely upon two witness statements.

PN240

MR DWYER: Yes.

PN241

THE DEPUTY PRESIDENT: And there haven't been reply statements, so I think an obligation does arise for you to put the matters that you seek to lead to Mr Fenech to the extent that they seek to contradict his evidence.

PN242

MR DWYER: Yes, thank you.

PN243

THE DEPUTY PRESIDENT: So I think you will need to get over the Browne v Dunn point.

PN244

MR DWYER: Thank you, your Honour.

PN245

MR GEE: If we could call Mr Fenech. Your Honour, before we do telephone Mr Fenech, shall we just check to see if Mr Smith is currently in the Commission room in Perth? If so, we'd ask him to leave, that's all.

PN246

THE DEPUTY PRESIDENT: We can mute it. Mr Smith?

PN247

MR SMITH: Yes.

PN248

THE DEPUTY PRESIDENT: You are in the Perth courtroom are you?

PN249

SPEAKER: That's correct, yes.

PN250

THE DEPUTY PRESIDENT: All right. Mr Smith, what I am going to do is I am going to endeavour to mute the sound while Mr Fenech gives his evidence. So you won't, hopefully, be hearing anything. But if I am unsuccessful at that then I am going to ask you to leave the room, all right?

PN251

MR SMITH: Sure. No problem.

PN252

THE DEPUTY PRESIDENT: Thank you, Mr Smith.

PHONE LINK ESTABLISHED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.38 AM]

PN253

MR FENECH: Good morning, Andrew Fenech speaking.

PN254

MR GEE: Good morning, Andrew. It's Ben Gee here from FCB. I'm in the Fair Work Commission here in Sydney. We are in hearing before his Honour, the Deputy President of the Fair Work Commission and also here is Mr Dan Dwyer and Mr Alex Jansen of the Communication Workers Union.

PN255

MR FENECH: Yes.

PN256

MR GEE: I might hand you over to the his Honour the Deputy President.

PN257

THE DEPUTY PRESIDENT: Mr Fenech, my associate will prepare you for giving evidence.

PN258

MR FENECH: Yes.

PN259

THE ASSOCIATE: Mr Fenech, could you please state your full name and address?

PN260

MR FENECH: Andrew John Fenech (address supplied)

<ANDREW JOHN FENECH, AFFIRMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.39 AM]

EXAMINATION-IN-CHIEF BY MR GEE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.39 AM]

PN261

MR GEE: Mr Fenech, you've prepared two written statements in these proceedings. Do you have a copy of those two statements with you?‑‑‑(Indistinct reply)

PN262

The first is a written statement that's a two-page statement which you appear to have signed on 12 June with three annexures. Do you have that?‑‑‑Yes, I do. Yes.

PN263

Do you say that the content of that statement is your evidence and is true and correct to the best of your knowledge and belief?‑‑‑Yes, I do.

***牋牋牋� ANDREW JOHN FENECH牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XN MR GEE

PN264

Your Honour, I'd seek to tender the statement at this time.

PN265

THE DEPUTY PRESIDENT: Any objection, Mr Dwyer?

PN266

MR DWYER: No, your Honour.

PN267

THE DEPUTY PRESIDENT: I will mark the statement of Andrew Fenech, comprising nine paragraphs, dated 12 June 2015 together with the attachments marked AF1 through AF3 respectively as exhibit 5.

EXHIBIT #6 STATEMENT OF ANDREW FENECH WITH ATTACHMENTS DATED 12/06/2015

PN268

MR GEE: Mr Fenech, you have a second written statement with you. It is a four-page statement, comprising some 16 numbered paragraphs which has been signed by you on 25 August. Do you have that document?‑‑‑Yes, I do.

PN269

Yes, and do you say that the contents of that further statement is your evidence in this matter and is true and correct to the best of your knowledge and belief?‑‑‑Yes, I do.

PN270

Your Honour, I seek to tender the statement.

PN271

THE DEPUTY PRESIDENT: Any objection, Mr Dwyer?

PN272

MR DWYER: No, your Honour.

PN273

THE DEPUTY PRESIDENT: Mr Fenech, before I might the statement, can I just refer you to the bottom of paragraph 4?‑‑‑Yes.

PN274

Where you refer to an email that you sent to Mr Kudray on 24 September and you say at AF3, "To my statement of 12 June",, should that be a reference to exhibit AF2 to the 12 June statement?‑‑‑Just - if I could just have a moment to read that?

PN275

Yes.

PN276

MR GEE: Sorry, your Honour, is it AF1 or AF2?

PN277

THE DEPUTY PRESIDENT: Well both, but AF2 is the - - -

PN278

MR GEE: Yes.

PN279

THE DEPUTY PRESIDENT: The - - -?‑‑‑Yes, I was going to ask, if I can, AF2? What - where is that?

PN280

It's at the bottom of paragraph 4 of your further statement. You say it's at AF3. That's should be a reference to AF2.

PN281

MR GEE: AF2 is attached to your first statement of 12 June, Mr Fenech?‑‑‑Okay. I'm just going to that attachment now. Yes, I agree with what you said. That should be AF2.

PN282

THE DEPUTY PRESIDENT: So you would like to amend your statement in that regard?‑‑‑Yes, thank you.

PN283

Thank you. All right, well, with that amendment I will mark the further witness statement of Andrew Fenech, which is undated, but which contains 16 paragraphs and one attachment as exhibit 7.

EXHIBIT #7 FURTHER STATEMENT OF ANDREW FENECH WITH ONE ATTACHMENT

PN284

THE DEPUTY PRESIDENT: Yes, Mr Gee.

PN285

MR GEE: Mr Fenech, do you have a copy with you of a written statement by Mr Brian Smith? It's not signed, but it's dated 4 September 2015 and it comprises some 43 numbered paragraphs?‑‑‑Yes, I do. I have that in front of me.

PN286

Okay. Can I ask you to turn to that statement, please, Mr Fenech and if you could turn to paragraph 11 of that statement?‑‑‑Yes.

PN287

Now, how do you understand that Mr Smith came be involved in relation to the enterprise agreement?‑‑‑Mr Smith volunteered to assist the three West Australian employees.

PN288

And how do you know that?‑‑‑Mr Smith told me as much over the phone.

PN289

Can you tell me what role Mr Smith had, if any, in relation to the making of the enterprise agreement?‑‑‑He had no formal role in the making of the enterprise agreement.

PN290

Was he going to be covered by the agreement?‑‑‑No.

PN291

Did he have any role in representing the employer in discussions about the enterprise agreement?‑‑‑No.

PN292

To your knowledge, was he appointed a bargaining representative in relation to anyone?‑‑‑No.

PN293

Who did Mr Smith report to?‑‑‑Mr Smith reported to Mr Adam Kudray. Adam Kudray was the West Australian state manager.

PN294

Thank you. Mr Fenech, if you could turn to paragraph 16 of Mr Smith's statement?‑‑‑Yes.

PN295

Could you read that paragraph to yourself, please, and do you have anything to say about that?‑‑‑I never - that never occurred, I never had that or a similar conversation with Mr Kudray.

PN296

Sorry, are you referring - what are you referring to there?‑‑‑We're looking at paragraph 16?

PN297

Yes?‑‑‑And there's an insinuation that Mr Kudray told - told Mr Fenech words to the effect that I might be difficult to deal with as I was likely to support the staff, et cetera. Yes, I never had that type of conversation with Mr Kudray. Mr Kudray never said that type of thing to me.

PN298

Thank you. In relation to the first sentence is that consistent with what Mr Smith said to you?‑‑‑No, my understanding is that Mr Smith volunteered himself to help the three WA employees.

PN299

If you could turn to paragraph now, Mr Fenech?‑‑‑Yes.

PN300

Paragraph 17 of Mr Smith's statement. It says on the second line:

PN301

I drafted a number of alterations.

PN302

What do you say about that paragraph?‑‑‑I never saw any drafted alterations by Mr Smith, they were never sent to me.

PN303

At paragraph 18 of Mr Smith's statement you see he says there:

PN304

It was clear Mr Fenech wanted to fast track the agreement and does not accept the amendments.

PN305

What do you say about that?‑‑‑No, I was just going through a normal enterprise agreement negotiation process.

PN306

At around paragraph 21 of Mr Smith's statement Mr Smith starts talking about some email correspondence between yourself, himself and Mr Kudray, and he does so starting on paragraph 21 and continuing over to paragraph 24. Now if you look at those paragraphs I will then ask you to look at paragraph 25 of Mr Smith's statement?‑‑‑Yes.

PN307

Do you have that?‑‑‑Yes.

PN308

In relation to the first sentence of paragraph 25 were you aware that Mr Smith had claimed he had handed an updated copy of the agreement to the three WA staff?‑‑‑No.

PN309

Were you aware that the document was ever given to them?‑‑‑No.

PN310

If you look at the second sentence there, Mr Fenech, that's the second sentence of paragraph 25, what do you say about that?‑‑‑That's false, I never did that.

PN311

If you now look at paragraph 27 of Mr Smith's statement?‑‑‑Yes.

PN312

Mr Smith's giving evidence about a telephone meeting of management on Monday 23 March. Can you tell me who was in that telephone discussion?‑‑‑Yes, the telephone discussion involved the three West Australian employees were present, Adam Kudray, Mr Smith, myself, Steve Donnelly, one of the company directors, and Gary Searston was also present. He's senior general manager with MTA.

PN313

When did that telephone call take place?‑‑‑On Monday 23 March; recollection it was probably about 3 or 4 pm New South Wales time. Sorry, yes, 3 or 4 pm WA time.

PN314

Sorry, 3 or 4 pm Australian Eastern Standard time or WA time?‑‑‑Sorry, 3 or 4 o'clock Eastern Standard time.

PN315

How long did that telephone conversation go for?‑‑‑A very long time, I think around three hours.

PN316

What was discussed in that telephone conversation?‑‑‑We went into a lot of detail about the agreement, explained the impact of the agreement on the West Australian employees, and that was essentially the - the forum for the meeting.

PN317

If you then look at paragraph 28 of Mr Smith's statement he says in the first sentence:

PN318

No one was sent over to explain the situation to the three staff.

PN319

What do you say about that?‑‑‑Well that was - Mr Adam Kudray's role was to - to do that in the remote West Australian office.

PN320

He then goes on to say:

PN321

Management wanted a vote of the three staff there and then. Mr Fenech wanted an immediate vote.

PN322

What do you say to that?‑‑‑Well the meeting was long, it was very detailed and in my opinion it ended amicably. We got an indication from the three West Australian employees that they would look favourably at the agreement and then we decided to let them sleep on it overnight and then they formalised their vote the following morning. So there was no - no pressure on my part to get an immediate vote.

PN323

THE DEPUTY PRESIDENT: Mr Fenech, when you say the following morning did you say on the 25th?‑‑‑The following morning was the - yes, I think it was the 25th. The morning after the meeting which would have been - actually it would have been Tuesday the 24th.

PN324

The meeting with the employees via telephone is said to have occurred on the 24th?‑‑‑Well it would be the following day then, yes, 25 March, the vote was formally lodged.

PN325

MR GEE: In paragraph 28 of Mr Smith's statement at the end of the second line there Mr Smith says:

PN326

I was also asked to table all the changes I had proposed.

PN327

And it continues on there. What do you say about that statement?‑‑‑I don't believe that occurred.

PN328

Mr Fenech, I'm backtracking a bit, a minute or two ago you said, it was your evidence that you received an indication that the three employees would look favourably on the agreement. I apologise if I have got that wrong. You said something to that effect, is that right?‑‑‑Yes, that's correct. Towards the end of that meeting we spoke with each of the three West Australian employees and they indicated that they were looking at the agreement favourably.

PN329

How did they indicate that?‑‑‑They said words to the effect, you know, we don't - I don't have any problems with the agreement, words to that effect.

PN330

Was Mr Smith still in the telephone call at this time?‑‑‑I believe he was. Remember this was a telephone conference, so - but I believe he was still in the room.

PN331

If you turn to paragraph 29, Mr Fenech, paragraph 29 of Mr Smith's statement?‑‑‑Yes.

PN332

You see Mr Smith says:

PN333

He advised of confusion about the agreement that was being voted on.

PN334

What do you say about that?‑‑‑I can't remember that ever occurring. I don't believe that occurred. From my memory we were all very clear that we had the right agreement, the final agreement, the agreement that was voted on in New South Wales.

PN335

What makes you say that you were clear about that?‑‑‑Well, it was never raised that there was any confusion, it was never raised or questioned what agreement version we were looking at, that was never a point of discussion.

PN336

Did this issue of a different classification come up at all in this telephone conversation, Mr Fenech?‑‑‑Yes, it did.

PN337

How was that dealt with?‑‑‑I explained in an enormous amount of detail that the appropriate and best - the appropriate legal way to deal with it was through the undertakings, which as I said I explained and then we later put those undertakings together in writing.

PN338

If you turn to paragraph 30?‑‑‑Yes.

PN339

If you read paragraph 30 to yourself and then let me know when you've read that, please?‑‑‑Yes, I've read that.

PN340

The first four and a half lines of that paragraph Mr Smith is giving evidence about what he says he said in that telephone conference. What do you say about that?‑‑‑I don't believe he ever raised that in the meeting.

PN341

So do you recall him making allegations that the process was out of line?‑‑‑No.

PN342

Do you recall him saying anything about the proposed agreement being amended?‑‑‑No.

PN343

Do you recall him saying anything about New South Wales voting on a different agreement?‑‑‑No, I do not.

PN344

In the last sentence he says you said that you would get undertakings through the Commission for changes between the two documents. What do you say about that?‑‑‑As I said earlier I explained that there'd be an amendment called undertakings that would be attached to the agreement.

PN345

Did you say anything about changes between the two documents?‑‑‑No, just only the undertakings we talked about; the undertakings, and my understanding was it was basically agreed and understood that there would be - that three undertakings would be made and that was basically agreed.

PN346

If you could turn to paragraph 31 of Mr Smith's statement?‑‑‑Yes.

PN347

It's the third line there, Mr Smith says:

PN348

We discussed that the process being applied by you and MTA management was knowingly outside the correct process.

PN349

Do you recall that being discussed in the telephone meeting?‑‑‑No, I do not.

PN350

What do you say about the assertion generally that the process being applied by you was knowingly outside the correct process?‑‑‑I disagree with it strongly. The correct process was followed as best I know.

PN351

He then goes on to say:

PN352

Other managers, whoever they are, said that you would sign a statutory declaration that would absolve management from responsibility.

PN353

What do you say about that?‑‑‑No, that's incorrect.

PN354

He goes on to say:

PN355

You said you would face a fine and other penalties if it was found to be wrong or misleading.

PN356

Did you say that?‑‑‑No.

PN357

He finishes that paragraph by saying:

PN358

The meeting got heated.

PN359

What do you say about that?‑‑‑As I said earlier my recollection of the meeting is very strong and I believed it went well, it ended amicably, particularly with the three employees giving an indication they'd look at the agreement favourably.

PN360

THE DEPUTY PRESIDENT: Mr Fenech, just to be clear these paragraphs that you are being asked questions about now don't relate to the meeting with employees?‑‑‑Okay.

PN361

MR GEE: I am sorry, your Honour, I didn't pick - - -

PN362

THE DEPUTY PRESIDENT: As I read them, and correct me if I'm wrong, it's under the heading "Management meeting" - - -

PN363

MR GEE: The 24 March.

PN364

THE DEPUTY PRESIDENT: Yes, and then it says present were the following.

PN365

MR GEE: Yes. You see, your Honour, there is - I appreciate, your Honour - the heading is "Management meeting 24 March", I'm asking the witness who was at the meeting and he said the three employees were there.

PN366

THE DEPUTY PRESIDENT: Together with Mr Donnelly and Mr Richter.

PN367

MR GEE: Yes. Mr Fenech in his written statement says the meeting happened on the 24th and not the 23rd. Mr Smith's evidence is unclear about that. I must admit I inferred, understood that paragraphs 27 to 32 of Mr Smith's assertions about what happened in the meeting being the telephone meeting, including the meeting with employees.

PN368

THE DEPUTY PRESIDENT: Right. Mr Fenech, during the telephone meeting that you had with the three employees as I understood it you were present, the three employees were present, who else was present?‑‑‑Stephen Donnelly, company director, Gary Searston.

PN369

Yes?‑‑‑Obviously Brian Smith, Adam Kudray, the state manager, and Ian Richter was not present. In Mr Smith's statement he refers to Ian Richter. He was not in fact present.

PN370

All right. All of those people were present when - this was a meeting with the three employees to explain the terms of the agreement?‑‑‑That's correct, yes.

PN371

Just so that I'm clear your statement which is exhibit 7 - - -?‑‑‑Yes.

PN372

- - - this is at paragraph 12 of that statement, this is the same meeting?‑‑‑Yes.

PN373

Yes?‑‑‑I'm just looking for paragraph 12, excuse me.

PN374

It's the further statement?‑‑‑Just give me one moment, I'm sorry. Sorry, can you just tell me what is the heading of that - that document?

PN375

The heading on the document is "Further statement of Andrew Fenech"?‑‑‑Right. Yes.

PN376

And it's on the third page under the heading "Explanation of the agreement", and paragraph 12 you say:

PN377

On 24 March 2015 I participated in a telephone call with Mr Kudray and the three employees.

PN378

?‑‑‑Yes.

PN379

Is this the same meeting that is being referred to in the paragraphs that Mr Gee has just taken you to from Mr Smith's statement?‑‑‑Okay, I understand the question now. I've got the document in front of me. I'm just reading paragraph 12 to be sure. Yes, it would be - yes, it would be the same meeting, yes.

PN380

The reason for my question is obviously you don't mention any of the other people in your paragraph 12. As I read Mr Smith's paragraphs there he doesn't mention the three employees. That's why I just wanted to clarify whether it was the one and the same meeting or something different, but you say it's one and the same meeting?‑‑‑Yes, that's correct.

PN381

Thank you.

PN382

MR GEE: Mr Fenech, we had been talking about paragraph 31, I will take you to paragraph 32 now?‑‑‑Yes.

PN383

What do you say to paragraph 32?‑‑‑Just one moment. Paragraph 32 - well, firstly the three employees in question were in the meeting all the time, and in fact what occurred was as I've already indicated they gave an indication they were thinking favourably about the agreement and then they were given the time to sleep on it overnight and then they cast their vote the following morning.

PN384

If you turn to paragraph 34 now, Mr Smith's statement. At the time when the employees gave an indication as to their vote do you know whether or not Mr Smith was still in the telephone conference?‑‑‑I'm sure he was.

PN385

You see at the end there he states a belief that they felt intimidated. What do you say to that?‑‑‑I believe that to be false from the fact that the meeting was amicable, it ended well, we asked the three employees if they had any questions, how they felt about the agreement, and there was no intimidation in my view whatsoever.

PN386

If I can ask you to turn to the statement of Daniel Harpley?‑‑‑Yes.

PN387

Mr Harpley gives some evidence starting at about paragraph 14 of how the vote happened in New South Wales?‑‑‑Yes.

PN388

To your knowledge did Mr Harpley have anything to do with, or any role in representing the interests of the three employees in WA?‑‑‑Absolutely not.

PN389

Did Mr Harpley have any role in representing the interests of the employee in Queensland?‑‑‑Absolutely not.

PN390

What do you say about Mr Harpley's role in representing the interests of employees in New South Wales?‑‑‑Yes, he joined the negotiating team and was representing the New South Wales employees only.

PN391

At about paragraph 14 Mr Harpley talks about what happened at Lisarow on Monday 23 March. Lisarow is the applicant's depot, is that correct?‑‑‑That's correct, yes.

PN392

Is that the location where the vote was to be held?‑‑‑Yes.

PN393

At paragraph 16 he says:

PN394

Not all staff were present. It was decided by the delegates along with Greg Egan and Andrew Fenech to exclude the staff who were not present; that is they would not be able to vote.

PN395

What do you say to that?‑‑‑I honestly can't remember that.

PN396

If you turn to your further statement, Mr Fenech. It's the further statement of Andrew Fenech. You signed it on 25 August?‑‑‑Yes.

PN397

At paragraph 10 you say you recall that for the vote process over 23-24 March 2015 there was 100 per cent attendance list on 23 March 2015, and you received voting papers back for every employee in New South Wales?‑‑‑Yes.

PN398

Is that your evidence?‑‑‑Yes, yes, that's my evidence, that's my - yes.

PN399

If you then look at paragraph 16 of Mr Harpley's statement what do you say about that?‑‑‑It's false.

PN400

In paragraph 17 Mr Harpley says he questioned the inclusion of two office clerical manager staff in the list as he felt the vote was being stacked. Do you recall that being raised?‑‑‑No, that was never raised.

PN401

At the end of that paragraph he says he was told the two staff members were assigned to fill staff roles on that day?‑‑‑No, that's incorrect as well, that's false.

PN402

At paragraph 22 Mr Harpley says that after the vote Mr Richard Morgan, one of the clerical managerial staff, turned up.

PN403

He was given a copy of the EBA and about 15 minutes to read the EBA.

PN404

Now do you recall Mr Morgan attending the vote at all?‑‑‑No, I can't recall that person or that incident that he's referring to.

PN405

At paragraph 23 Mr Harpley says:

PN406

The next day, 24 March, another missing voter turned up to work. His name was Graham Brough. He was allowed to vote.

PN407

What do you say about that?‑‑‑No, that's incorrect.

PN408

What is it that's incorrect, Mr Fenech, is it incorrect that he - what about that statement is incorrect?‑‑‑Well, no one - to the best of my knowledge no one voted - after we collected the vote on that - on the particular day at Lisarow no one - there was no other people that voted after that event.

PN409

Can you talk me through or explain what was the process for the employee in Queensland to vote?‑‑‑Similar to that of Western Australia. It's a remote office, the Enterprise Agreement was emailed to the state manager of Queensland. The state manager had the responsibility to sit down with the employee, explain the agreement, take any questions, make clarifications. The state manager could come back to me with any queries or questions or concerns for my assistance, and then ultimately the one employee in Queensland voted the same way on the same - in the same manner on a voting slip.

PN410

Who was the state manager in Queensland?‑‑‑Gary Searston.

PN411

That's S-e-a-r-s-t-o-n, is that the right person?‑‑‑Correct, yes, that's the right person.

PN412

What do you say Mr Searston's role was in relation to informing that one employee in Queensland about the time and place of the ballot process?‑‑‑Yes, that was in Mr Searston's control to get that particular employee into the office at an appropriation time, have the discussions, and then - then cast the vote.

PN413

Did Mr Searston or the employee in Queensland ever ask you any questions about either the agreement or the time and place of the ballot?‑‑‑No.

PN414

Thank you, no further questions.

PN415

THE DEPUTY PRESIDENT: Mr Fenech, I'm sorry, did you indicate that you ultimately got a vote from the Queensland employee?‑‑‑Yes, we did, yes.

PN416

In your statutory declaration you indicate that there were 48 employees covered by the agreement and 47 voted?‑‑‑Yes.

PN417

Every employee in New South Wales voted and the one Queensland employee voted, and the three WA employees voted, who didn't vote?‑‑‑Yes, I can't recall - I can't recall that, so I won't guess, I can't remember, I'm sorry.

PN418

All right. If your evidence today is that the Queensland employee voted, every New South Wales employee voted and the three WA employees voted there should have been the same number of votes cast as there were employees covered by the agreement?‑‑‑I can only suppose that that might have been - there might have been one person on extended leave of absence or something of that nature, so 100 per cent of people that were available on that day voted.

PN419

I don't want you to be guessing about these things?‑‑‑Yes. Look I honestly can't remember why that - yes, what the difference is there.

PN420

Yes, Mr Gee.

PN421

MR GEE: Mr Fenech's evidence at paragraph 10 is that there was 100 per cent attendance list. I don't suggest that the evidence is that there's 100 per cent of persons employed in New South Wales. Again I'd be speculating as to the difference, but that's the evidence.

PN422

THE DEPUTY PRESIDENT: What he says is:

PN423

And I received voting papers back from every employee in New South Wales.

PN424

MR GEE: True.

PN425

MR DWYER: Yes, thank you, your Honour.

PN426

THE DEPUTY PRESIDENT: Yes, Mr Dwyer.

CROSS-EXAMINATION BY MR DWYER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.18 PM]

PN427

MR DWYER: Mr Fenech, my name is Dwyer, I am here to ask a few questions about that. Perhaps we can start with Mr Harpley - I will jump back and forward, but I will just start at this point with Mr Harpley who has made a statement, and at paragraph 22 he said:

PN428

I witnessed the count of the vote and it was tied 21/21. That is 42 staff had voted.

PN429

You don't disagree with that?‑‑‑Where are you - - -

***牋牋牋� ANDREW JOHN FENECH牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MR DWYER

PN430

Mr Harpley's statement?‑‑‑Where are you referring to? Yes, Mr Harpley's statement. Just one moment.

PN431

Paragraph 21?‑‑‑Paragraph 21. Yes, I can't recall if those numbers are correct, I'm sorry.

PN432

You don't disagree with them?‑‑‑I'm saying I can't - I can't recollect those numbers, the 21/21. I can't recollect if that was the vote that occurred.

PN433

What I am really putting to you are you saying that - you're not saying he's incorrect, are you?‑‑‑Yes, I'm saying I can't really remember those numbers.

PN434

So you are not disputing those numbers then?

PN435

THE DEPUTY PRESIDENT: Mr Dwyer, if he can't recall he can neither say he disputes or agrees with the numbers. He can't recall.

PN436

MR DWYER: Yes. Just a number of questions during examination he used the word "recall" as opposed to - - -

PN437

THE DEPUTY PRESIDENT: I understand the difference.

PN438

MR DWYER: Yes. I just wonder if the witness did.

PN439

THE DEPUTY PRESIDENT: He doesn't recall, and to the extent that he doesn't recall particular conversations to which his attention was drawn in the witness statement of Mr Smith that's evidence that he doesn't recall, it's not evidence that it didn't happen, it's evidence he doesn't recall it.

PN440

MR DWYER: Yes. You understand why I'm raising it of course.

PN441

THE DEPUTY PRESIDENT: No, I understand it, but you have pressed him now twice on it and his evidence is he doesn't recall. He can't therefore say whether he agrees or doesn't agree.

PN442

MR DWYER: Yes, I will certainly move on, and I will note that for further questions as well where it comes up.

PN443

THE DEPUTY PRESIDENT: Thank you.

PN444

MR DWYER: I may note it but not press it is what I'm saying.

PN445

THE DEPUTY PRESIDENT: I understand.

PN446

MR DWYER: On the day of the vote you were taken to a paragraph then about there was a 100 per cent attendance list on 23 March. Now there was a document prepared called an attendance list, is that correct?‑‑‑Yes, that's correct.

PN447

And as each person arrived, or people present at the meeting they signed that attendance list on that day, we're talking about the 23rd at the 7 am meeting?‑‑‑Yes, that's right.

PN448

Do you have a copy of the attendance list?‑‑‑No, I don't.

PN449

Do you know if the attendance list is available?‑‑‑Yes, it should be in the - it should be at the MTA office somewhere.

PN450

And that attendance list would indicate the number of people who were present and voted?‑‑‑It would, yes.

PN451

You then say at paragraph 10 of your statement:

PN452

I received voting papers back for every employee in New South Wales.

PN453

?‑‑‑That's every employee that was present and working on that particular day.

PN454

Present at that meeting?‑‑‑Present at work in New South Wales on that particular day.

PN455

Present at that meeting?‑‑‑I'm not sure what you - I'm not sure what you mean, sorry.

PN456

The meeting was at 7 am that day?‑‑‑Yes.

PN457

The meeting went for half an hour?‑‑‑Thirty to 50 minutes, something of that nature, yes.

PN458

At the end of the meeting a number of ballot papers had been filled in and presumably put in a box or handed to someone?‑‑‑Yes, put into a box, that's correct.

PN459

That was the end of the voting that day?‑‑‑Yes, that's right.

PN460

At that point Mr Harpley says there were 42 votes and it was a tie at that point?‑‑‑Yes, I know he says that, yes.

PN461

What I'm going to put to you is that your statement - therefore I will go back to your statement then:

PN462

I received voting papers back for every employee in New South Wales.

PN463

At that point, that is by 8 am, had you received ballot papers back from every person in New South Wales, every employee in New South Wales?‑‑‑Yes.

PN464

I put it to you that that's not a correct statement?‑‑‑Well, that's my - that's my understanding, that's my memory of it.

PN465

Mr Harpley at paragraph 22 - you were taken to this before?‑‑‑Yes, 22, yes.

PN466

Mr Morgan cast a late vote. I put it to you that that occurred?‑‑‑I'm sure that it didn't.

PN467

After the meeting at about, let's say 8 am for want of a time, did you leave the Lisarow depot at that stage or were you there for the whole day?‑‑‑I left at some point. Yes, I definitely wasn't there the whole day.

PN468

Mr Harpley said - he talks about himself and Mr Egan doing things. He said,

PN469

Mr Morgan came late, he voted, the vote was placed in a sealed envelope, and I and Mr Egan signed the sealed envelope.

PN470

Are you saying that did not happen?‑‑‑Look, I can't be sure from memory, to be honest. I don't believe it did.

PN471

Mr Richard Morgan would have been one of the staff, one of the 48 staff you were talking about?‑‑‑I wouldn't - I wouldn't know. I can't remember.

PN472

Mr Harpley is making a statement that Mr Morgan voted, it was put in a sealed envelope, signed by himself and Mr Egan, and it was stated it would be counted with the WA vote, and Mr Egan took the envelope. You are saying you can't deny that statement of Mr Harpley?‑‑‑I'm not aware that occurred.

PN473

Okay. After the vote in New South Wales, after 8 am in New South Wales, it's been said by Mr Harpley that there had been 42 votes. Your statement later says that 47 or 48 people voted. There's a discrepancy there. I won't talk about that for the moment. How many votes after the New South Wales vote did you receive?‑‑‑How many votes after the New South Wales vote, as we've heard there's three in Western Australia and one in Queensland.

PN474

That would take it to 46, would it?

PN475

MR GEE: I object to that. The witness has been asked how many people in New South Wales. He has given his answer. He has been asked how many votes he received after New South Wales. He has answered that. I don't think the question is fair to be put.

PN476

MR DWYER: Perhaps I will withdraw it because it's based on the assumption of 42, of course. I don't think a Browne v Dunn issue arises there. This could have occurred without your knowledge. Paragraph 23 - - -

PN477

THE DEPUTY PRESIDENT: Sorry, before you go on. Mr Fenech, who was responsible for counting and tabulating the vote?‑‑‑The - myself, Greg Egan and the three representatives counted the vote.

PN478

Right, and when did you count the vote in New South Wales?‑‑‑We - I'm just trying to - look, I can't really remember.

PN479

All right, was Mr Harpley there when you counted the vote?‑‑‑I honestly can't remember. I'm sorry.

PN480

MR DWYER: Your Honour, Mr Harpley states he witnessed the counting of the vote.

PN481

THE DEPUTY PRESIDENT: No, no, I understand that.

PN482

MR DWYER: Yes.

PN483

THE DEPUTY PRESIDENT: I'm just asking what this witness recalls.

PN484

MR DWYER: Okay.

PN485

THE DEPUTY PRESIDENT: Yes.

PN486

MR DWYER: And just following from that question, Mr Harpley being present, after the New South Wales votes were counted it's a fact though Mr Harpley was not involved in any other count?‑‑‑You mean in Western Australia or Queensland?

PN487

Yes?‑‑‑That's correct.

PN488

Yes, you didn't involve any of the bargaining representatives after the New South Wales vote?‑‑‑Well, they were only bargaining representatives for the New South Wales employees.

PN489

So the only people who saw the votes from the other States were yourself and Mr Egan perhaps and some of the State managers?‑‑‑No. No, the State managers in respectively Western Australia and Queensland.

PN490

Could I take you to paragraph 23 of Mr Harpley's statement?‑‑‑Yes.

PN491

Mr Harpley says that Mr Graham Brough - I'm not sure how it's pronounced - was at work and was allowed to vote. What do you say about that?‑‑‑I think I've said earlier I can't remember that. I can't remember Graham Brough or that incident or what he's referring to.

PN492

So this is 24 March. You weren't at the depot on 24 March?‑‑‑Not that I remember - look, I can't remember because I used to go between the Tuggerah office and the Lisarow office so I couldn't say.

PN493

In your first statement the attachment AF2, can I take you to that?‑‑‑Yes. Attachment 2 did you say?

PN494

Yes, AF2. Yes?‑‑‑AF2, yes. Yes.

PN495

There's an email train there and if I could take you to the first page, AF2. Mr Kudray asked you the question, one immediate question, "Are 457 staff covered under the EBA?" Now I realise you haven't included the responses to that. What was your answer to that question about 457 staff?‑‑‑Yes, they are covered.

PN496

And if I can take you to your further statement at paragraph 3?‑‑‑This is still AF2, yes?

PN497

No, no, I'm taking you back to your second statement?‑‑‑Yes.

PN498

I'll call it the further statement. Paragraph 3?‑‑‑Is that the one signed on 25 August, or? Yes. Yes.

PN499

Yes?‑‑‑Paragraph 3?

PN500

I'm sorry, I withdraw that. Paragraph 4?‑‑‑Four, yes.

PN501

It says:

PN502

The first time I explained the voting process to employees was on the 24th of November 2014.

PN503

?‑‑‑Mm‑hm.

PN504

And there had been a series of votes between then and 23 March, that's correct?‑‑‑Sorry, what was that? I missed what you're saying there. That?

PN505

Yes, so you'd explained this to them on 24 November, the process?‑‑‑Yes.

PN506

And you explained to all employees at this meeting that when they were ready to hold a vote there would be an anonymous onsite voting process?‑‑‑Yes.

PN507

And you stressed that it would be anonymous?‑‑‑Yes.

PN508

And there would be a one-page form?‑‑‑Yes.

PN509

And:

PN510

No one would be able to identify how any particular employee voted.

PN511

Just a little bit further down?‑‑‑Yes.

PN512

And you say you repeated that to Mr Kudray in WA?‑‑‑Yes.

PN513

MR GEE: No, that's not in his evidence.

PN514

MR DWYER: So:

PN515

I repeated the information during a telephone call with the three employees some time after I sent the email.

PN516

So I withdraw that. You explained to the three employees some time after 24 November. Do you recall when you did that?‑‑‑No, I don't really recall when I did that. No.

PN517

Would it have been closer to March that you would have told them that?‑‑‑ I honestly can't remember. I'm sorry.

PN518

Now I go to page 5 of your further statement?‑‑‑Page 5, yes.

PN519

You talk about the workforce as teams of around four to six with a supervisor of each team?‑‑‑What paragraph number are you on, sorry?

PN520

Paragraph 5.

PN521

THE DEPUTY PRESIDENT: Paragraph 5? Sorry I thought you said page 5.

PN522

MR DWYER: I'm sorry, your Honour.

PN523

THE WITNESS: Paragraph 5. Right. Yes. Okay, yes?

PN524

MR DWYER: Yes, the supervisors you talk about for each team, they were not covered by the agreement?‑‑‑That's correct.

PN525

In paragraph 6 you outlined a process there where you say a piece of paper was sent to the various managers?‑‑‑Yes.

PN526

Which presumably were handed out to each of the staff?‑‑‑I'm just reading that paragraph. One moment. Yes. Yes.

PN527

Yes, did you take any security measures to ensure that nobody voted twice?

PN528

MR GEE: I've got to object. It's not a matter arising nor a matter of relevance to any complaint made by the - - -

PN529

THE DEPUTY PRESIDENT: And it's in relation to an earlier vote which isn't before me so what does it matter? This is in January 2015.

PN530

MR DWYER: I understand. I may come back to that, your Honour.

PN531

THE DEPUTY PRESIDENT: Yes.

PN532

MR DWYER: I certainly appreciate your point, your Honour.

PN533

THE DEPUTY PRESIDENT: Mr Fenech, while you're there, at paragraph 6 you see the last sentence you say, "On the day of the vote" - This was back in January 2015?‑‑‑Yes.

PN534

And:

PN535

The votes were collected at Lisarow and counted by myself and bargaining committee members.

PN536

?‑‑‑Yes.

PN537

And you say earlier that votes were collected - sorry copies of the voting paper was distributed to team leaders in New South Wales and WA. How did you receive the WA votes?‑‑‑I emailed the voting form to the Western Australian State manager. As I've said, the following morning after our conference call - - -

PN538

No, no, no, this is in January 2015?‑‑‑Yes.

PN539

You see at paragraph 6 you're talking about what happened in January and you say that you sent a copy of the one‑page to all the team leaders in New South Wales and WA?‑‑‑Yes.

PN540

And then you indicate what steps you took to count the vote and how you did that?‑‑‑Mm‑hm.

PN541

At Lisarow in New South Wales and you say that that was on the day the vote was held. When did you count the WA votes?‑‑‑I can't - I honestly can't remember, I'm sorry. We had a number of votes. I can't remember.

PN542

And was there no employee then in Queensland?‑‑‑I know the - I believe that's the case. He did start - that one employee in Queensland did start at some point after we kicked off the enterprise agreement process.

PN543

Yes.

PN544

Yes Mr Dwyer?

PN545

MR DWYER: Yes. Thank you, your Honour.

PN546

If I could now go to your paragraph 9?‑‑‑Yes.

PN547

And here you talk about your email of 13 March?‑‑‑Yes.

PN548

Which is exhibit 6 I believe, and you notify - you do a couple of things there. One is you attached the proposed agreement?‑‑‑Yes.

PN549

And you attached a document called a "Letter of offer"?‑‑‑Yes.

PN550

You've asked that it be circulated?‑‑‑Yes.

PN551

And you advised that the vote will be at 7 am Monday 23 March?‑‑‑Yes.

PN552

And the agreement you attached to it - your Honour, perhaps so it won't be confusing later, there are a couple of ways to identify some agreements. One of them is clause 1 of the agreement. Do you have a copy of the agreement that was filed in the Commission?

PN553

THE DEPUTY PRESIDENT: Are you referring to the agreement that was filed or the agreement that was attached to the email?

PN554

MR DWYER: Circulated. I believe they're the same.

PN555

THE DEPUTY PRESIDENT: Okay well, exhibit 4 has that document.

PN556

MR DWYER: Yes, the attachment there.

PN557

Do you have a copy of the agreement that was attached to exhibit 4?‑‑‑No, I don't.

PN558

MR GEE: No, he doesn't. He has got exhibit 6.

PN559

MR DWYER: Do you recall in the definitions in those agreements it says, "MTA means Mirait Technologies Australia" with an ABN number. That was not the correct ABN number?‑‑‑I believe that was - there was - yes, that's correct. Yes, there was to - - -

PN560

Yes. Only just, your Honour, for identification purposes. I don't take issue about it.

PN561

So the one circulated then and the one filed in Fair Work had the incorrect ABN number?‑‑‑Yes it did. Yes.

PN562

And the - - -

PN563

MR GEE: I object to that. There are two questions there. There was a question about what the document contains. There's a question about what the application contains. If the question could be put again.

PN564

MR DWYER: The document attached to exhibit E4 - I know you don't have it there?‑‑‑Mm.

PN565

We have copies here. That would contain an incorrect ABN number?‑‑‑Yes, it's a little hard for me to see with that. I can see it, but - - -

PN566

And also the name of the MTA, it says Mirait Technologies Australia, without the "Pty Ltd" on them, on the end of it. Do you recall that as well?‑‑‑No, I don't recall that.

PN567

Okay. There is another agreement we'll come to where that clause is different. That's where it - I'll come to that -so at the moment, I'll put it his way. I have a copy of your email and a copy of the agreement and it says, "MTA" which means Mirait Technologies Australia, with an ABN which I think you concede would have been an incorrect ABN?‑‑‑The ABN was incorrect, yes.

PN568

Yes, okay. So that's on the 13th. Now, the address is on the 13th, that you put. Your email is sent to a number of people and in the - and there's also a carbon copy, so where its "To", that's people who are employees who would be covered by the agreement, would that be the general statement?‑‑‑They usually would be sent to the - to a range of people. Some of them were state managers and other people that were not covered by the agreement, supervisors and the like that were expected to distribute the agreement and give people access to getting an agreement.

PN569

Perhaps I can assist you, you've got - it's sent to a number of people under the hearing "To", and there's more people under the "carbon copy". Is it generally - would this be correct that the people listed under "To" would be employees, and people listed under "CC" would be the managers?‑‑‑Yes, I think that's generally the case.

PN570

And it was up to those managers then to further circulate the agreement and attachments and the email?‑‑‑Yes, to circulate and also have a copy if people wanted to have - get a copy or to have a read of it.

PN571

Then exhibit 5, which is your email of 16 March?‑‑‑16 March.

PN572

THE DEPUTY PRESIDENT: Sorry, before you do that, Mr Fenech, I take you back to exhibit AF3?‑‑‑AF3, just one moment.

PN573

Which is to your statement of 12 June?‑‑‑Yes, yes.

PN574

Apart from attaching the agreement, you say, "Be aware that another vote will be conducted at 7 am on 23 March." There's no information there about the method of voting or the place at which the vote would take place. How is that information communicated to the relevant employees?‑‑‑Via all the supervisors, the state managers. It was well understood that it was - in New South Wales every Monday morning at 7 am all the employees meet at the Lisarow depot and then, given the nature of the work, small teams are dispersed all throughout the Central New South Wales coast and Sydney and so forth, but everyone is aware that on Monday mornings all employees are together at the Lisarow depot.

PN575

That covers the New South Wales people. This email was also sent to Mr Kudray?‑‑‑Yes. With respect to the - I will call them the remote offices if you like, the Western Australian and Queensland offices, that was left to the state managers to organise an appropriate time.

PN576

What I'm concerned about is when those employees were notified of the time at which the ballot would take place and the method of voting, because on the basis of this email, Mr Kudray would have told - if you relied on this email - would have told the employees that the vote would be at 7 am on Monday 23 March. Is there some other document?

PN577

MR GEE: Yes, your Honour. Paragraph 9 of exhibit 7.

PN578

THE DEPUTY PRESIDENT: Yes, I see that. Thank you. Yes, Mr Dwyer.

PN579

MR DWYER: Yes, and - - -

PN580

THE DEPUTY PRESIDENT: Can I ask you this, Mr Dwyer, how much longer do you think your cross-examination will be? I'm not trying to hurry you up, I just want to - - - -

PN581

MR DWYER: I see. I would not finish before 1.00.

PN582

THE DEPUTY PRESIDENT: That's fine. We will keep going until 1.00 and we'll adjourn at that stage.

PN583

MR DWYER: Thank you.

PN584

Now, I was taking you to exhibit 5, which is the email of 16 March?‑‑‑Let me just try and find that again, sorry.

PN585

THE DEPUTY PRESIDENT: I don't think Mr Fenech has that.

PN586

MR DWYER: Okay. I understand you don't have that there?‑‑‑Yes, I'm not sure what you are referring to, sorry.

PN587

THE DEPUTY PRESIDENT: Perhaps I'll just read it out for you. It's an email from Mr Kudray to a number of people, CC'd to a number of people, including you, which says:

PN588

Gents, further to last week's conversation, attached is the latest version of the MTA EA for your perusal and comment. As committed, we will have a face-to-face meeting this week to go through it in detail. Peter, Jamie and Daniel other nominated delegates who are representing MTA field operations through the process, and I am sure they will not mind being available for you to discuss, in addition to myself and Andrew as necessary. Thanks kindly to all -

PN589

and then there are - it follows with another email and then there are a copy of a letter of offer, which seems to be in template form of three pages, together with a document titled, "Mirait Technologies Australia MTA Enterprise Agreement 2015-2019."

PN590

MR DWYER: Yes. Do you recall that email?‑‑‑Not really to be honest. There have been so many emails.

PN591

This is from Mr Kudray and copied to you?‑‑‑Mm-hm.

PN592

Mr Kudray is saying - is referring to Peter, James and Daniel, who were copied in. They were the three bargaining representatives, for want of a better word, in New South Wales?‑‑‑Only for the New South Wales employees, yes.

PN593

You gave evidence to some time ago that these three bargaining representatives in New South Wales only looked after New South Wales. DO you recall saying that?‑‑‑Yes. Yes, I do. Yes, that's correct.

PN594

Did you correct Mr Kudray when Mr Kudray suggested to the West Australians that these three people could represent them?‑‑‑I can't remember having that conversation. I should have, but I can't remember if I did talk to Adam about that. That's obviously his mistake.

PN595

But you don't recall correction him?‑‑‑No, I don't.

PN596

And you attached, as you heard some documents. I have a copy of the document attached here. Firstly, if I could go back to where the definition of MTA was the same as in the documents circulated on the 13th.

PN597

MR GEE: He doesn't have the document.

PN598

MR DWYER: I understand he doesn't have the document.

PN599

MR GEE: I object to the question being put in the absence of the document being in front of the witness.

PN600

MR DWYER: I don't think the witness would have difficulty with this.

PN601

THE DEPUTY PRESIDENT: Well, where is it going to, Mr Dwyer?

PN602

MR DWYER: Because I will come back to this definition shortly, your Honour. Perhaps your Honour might note that that attachment, that the MTA has the - it says the definition means Mirait Technologies Australia, without the "Pty Ltd" on it, and the - - -

PN603

THE DEPUTY PRESIDENT: What I might do, Mr Dwyer, is it possible for you to sort of bypass this line of questioning until after the luncheon adjournment, and if you can identify to my associate which other documents you want to take this witness to, and during the luncheon adjournment, I will arrange for them to be scanned and emailed to Mr Fenech.

PN604

Mr Fenech, you will be able to give me an email address?‑‑‑Yes.

PN605

Yes, all right. Can we do that? Because it gets difficult otherwise for the witness otherwise for the witness to be answering questions about documents which he doesn't have in front of him.

PN606

MR DWYER: Yes, certainly.

PN607

THE DEPUTY PRESIDENT: Given the time, Mr Dwyer, perhaps now might be a convenient time to adjourn.

PN608

MR DWYER: Yes.

PN609

THE DEPUTY PRESIDENT: And you can tell my associate which documents, either the ones that have tendered today or any documents that are in the appeal book which you want the witness to have and my associate will email those to Mr Fenech.

PN610

And Mr Fenech, I'll have this scrubbed from the transcript, but for present purposes are you able to give me your email address?‑‑‑Yes, it's simply (email address supplied)

PN611

MR DWYER: Could I just clarify, Mr Fenech, do you have any of the agreements with you?‑‑‑No, I don't, no.

PN612

THE DEPUTY PRESIDENT: Mr Fenech, is that a personal email address?‑‑‑Yes, it is, yes.

PN613

Okay. Well, we might have to send them in a truncated - in an number of emails to ensure that it doesn't, sort of, compromise your size limitation?‑‑‑Okay, thank you.

PN614

All right, we'll do that and, Mr Fenech, you can hang up and we'll reconvene at about 2 o'clock or shortly thereafter?‑‑‑Okay, thank you.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.58 PM]

PN615

THE DEPUTY PRESIDENT: I'll just explain to Mr Smith what's happening.

PN616

Mr Smith, are you able to hear me?

PN617

MR DWYER: We can phone him.

PN618

THE DEPUTY PRESIDENT: Mr Smith, can you hear me? Mr Smith. I will leave it to you, Mr Dwyer, to contact Mr Smith and tell him that we're adjourned and - how much longer do you think you will be? Again, I don't want to rush you, I just think as a matter of fairness to Mr Smith if he can go off and do something else for an hour and a half or so, he should be told that.

PN619

MR DWYER: I don't think I would go for more than one hour, I would hopefully - - -

PN620

THE DEPUTY PRESIDENT: So can we safely say to Mr Smith that he won't be required before 3 o'clock?

PN621

MR DWYER: Yes. If we do finish we can use Mr Harpley who is here.

PN622

THE DEPUTY PRESIDENT: All right. Well, perhaps you can tell Mr Smith that he won't be required until 3 o'clock.

PN623

MR DWYER: I will.

PN624

THE DEPUTY PRESIDENT: On that basis, we'll adjourn until 2 pm.

LUNCHEON ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.59 PM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [2.12 PM]

<ANDREW JOHN FENECH, RECALLED ON FORMER AFFIRMATION� [2.12 PM]

CROSS-EXAMINATION BY MR DWYER, CONTINUING牋牋牋牋� [2.12 PM]

PN625

THE DEPUTY PRESIDENT: Yes, Mr Dwyer.

PN626

MR DWYER: Thank you, your Honour.

PN627

THE DEPUTY PRESIDENT: Before you do, can I indicate to the parties that I've re-arranged my flights for this afternoon so I can sit until 6 pm.

PN628

MR DWYER: Thank you, your Honour. Mr Fenech, before the break we were discussing three emails. During the break we provided you with four copies of - four different copies of the agreement?‑‑‑Yes.

PN629

Just to very quickly go back. The first one was attached to the email of 13 March, which is exhibit 4?‑‑‑Yes.

PN630

If I take you to the - I'm really trying to identify them at the moment so for one purpose of identification if I take you to paragraph 1 of that agreement?‑‑‑Now which agreement are you referring to, sorry?

PN631

The one attached to the email of 13 March?‑‑‑Right. Just bear with me one moment, I've got them all open. I'm just trying to - it's a little difficult to identify which one's which. So you want me to look at the one that's attached to an email dated 13 March?

PN632

Yes?‑‑‑Yes.

PN633

Have you found that?‑‑‑It's just opening. I've opened them all up, but once you open them, you don't know where they've come from, do you know what I mean? The attachment isn't marked, so I'm opening it up again and it will just be a moment. Is this the one with handwriting on it?

PN634

No?‑‑‑No. It's still downloading, so just one moment. Okay yes. I've got that now, yes.

PN635

I want to take you to paragraph 1.1?‑‑‑Yes.

PN636

And the definition of MTA says it means Mirait Technologies Australia, with an ABN number that - and the ABN - when we were speaking before about an incorrect ABN, that ABN is not correct, is that how you recall it?‑‑‑That's how I recall it, yes.

PN637

Okay, and I notice in submissions that this copy is different to the earlier one, because it had been reformatted, is that correct?‑‑‑I'm not sure which earlier one you are referring to.

PN638

I'm suggesting that if you were to compare it with an earlier copy sent out on 13 March - --

PN639

MR GEE: This is the 13 March one.

PN640

MR DWYER: I am trying to shortcut here. Perhaps if you compare it with the - I'll see if I can do it by shortcut. There was one sent out on 13 March and one sent out on 16 March. The only difference between the two is formatting. Would that be a reasonable summary?‑‑‑Well, there shouldn't have been any difference that I am aware of. The email on the 13th - Friday the 13th was just forwarded on from - on the 16th. They should be the same document. So what I'm saying is that there was an email on the 13th. I think myself and Greg Egan picked that up and forwarded it on on the Monday, the 16th. So they shouldn't - to the best of my knowledge there shouldn't be any difference.

PN641

Your Honour, nothing turns on that, I just - - -

PN642

THE DEPUTY PRESIDENT: I think the only difference is that the way in which they have been photocopied on your version. You will see that page 1 on the version that's attached to exhibit 5 starts on a page on the right-hand side, whereas in the annexure to exhibit 4, it start on the left-hand side. You can see it's a product of double-sided photocopying.

PN643

MR DWYER: Possibly. I think you're - I make - it's only really for the purposes of identification, because if you look at the page numbering, your Honour, for example at the bottom of the - - -

PN644

THE DEPUTY PRESIDENT: Yes.

PN645

MR DWYER: You will find there's a different sort of format of page numbering for example.

PN646

THE DEPUTY PRESIDENT: Not on my version.

PN647

MR DWYER: I'll move on from it, because - but I'll come back to that point very shortly. Just on that email on the 16th, if you turn over that email on 16 March, exhibit 5, this was read to you before. I believe you don't have that in front of you, do you?‑‑‑I'm not sure what you're talking about, yes.

PN648

It's an email - perhaps I'll do it this way; you sent Mr Kudray an email indicating there would be a ballot to be conducted, 7 am Monday 23 March?‑‑‑Yes.

PN649

There were no specific provisions made in your email or elsewhere for Queensland or Western Australia, were there?‑‑‑No, that was up to the state managers.

PN650

You don't disagree, Mr Kudray sent that on to the staff there would be a ballot at 7 am on the 23rd?‑‑‑Yes, he forwarded that on.

PN651

Yes. And we have nothing from Queensland by way of email?‑‑‑Not that I'm aware of.

PN652

No. At paragraph 9 of your further statement, we go back at the last paragraph, you say you asked Mr Kudray to hand out ballot papers to his team and explain them to his team and that they'd be asked to vote on 24 March?‑‑‑Yes.

PN653

And in paragraph 10, you say you received = the second half of the paragraph, received only papers back for every employee in New South Wales, we've dealt with that, and said on 24 March there were three ballot papers returned from three employees in WA?‑‑‑Yes.

PN654

Okay, and you make no mention of Queensland, do you?‑‑‑That was obviously returned. Yes, there's no mention there of Queensland, but - - -

PN655

You only talk about the ballot papers from New South Wales and from WA?‑‑‑Yes.

PN656

Then you say on 24 March - you are asked questions about this and I didn't quite understand when you were examined before, you believe this meeting you had with the three staff, I'll call it, the meeting where the three Western Australian staff who were voting were present?‑‑‑Yes.

PN657

You say it took place on 24 March?‑‑‑Yes, I believe it was the 24th.

PN658

I think your evidence was it was sometime in the afternoon?‑‑‑Yes, I believe, yes, 3 or 4 o'clock.

PN659

You have Mr Smith's statement there?‑‑‑Yes, I do.

PN660

If I take you to paragraph 27 - - -?‑‑‑Just one second. Just bear with me, I've got so many statements. Just one moment - yes, Brian - sorry, the paragraph number?

PN661

Paragraph 27?‑‑‑27, yes.

PN662

Now, there's a heading there which says, "Management meeting, 24 March, 1400 WST", Western Standard Time, I believe, and then - but then the next paragraph talks about a meeting on Monday, 23rd?‑‑‑Yes.

PN663

What do you say about that?‑‑‑So I'm reading paragraph 27?

PN664

Yes, I'm not asking you to explain the difference between the two dates; Mr Smith is suggesting there was a meeting on Monday the 23rd. It's probably just unclear, because the hearing contradicts that, but it suggests there was a meeting of managers?‑‑‑Yes, I can't - I don't know what he's referring to there, to be honest. You know, there was obviously lots of meetings and lots of discussions and I don't know what your question is, sorry.

PN665

Right. Do you recall having a meeting on Monday the 23rd?‑‑‑If you are referring to the late afternoon meeting, the hook-up with Western Australia, the three employees, Adam Kudray, Brian Smith et cetera, yes, I do remember that.

PN666

With the three employees. You believe that took place on the 24th?‑‑‑I believe it was the 34th, because Western Australia wanted a bit more time to, you know, to take in the information and have some discussion.

PN667

Certainly no vote was taken on the Monday morning, 23 March?‑‑‑For the Western Australian employees you're talking about?

PN668

Yes?‑‑‑Yes, that's correct. There was no vote taken.

PN669

In paragraph 28, Mr Smith says that he raised the issue of this handwritten version of an EA. Do you know what he's referring to there?‑‑‑No, I can't remember him raising anything about it - you know, handwritten changes to the EA.

PN670

Right. You said in your statement there that you had never seen that EA with handwritten amendments?‑‑‑That's correct.

PN671

Right, and before we emailed over to you a copy of an EA with handwritten amendments to it. This is for the transcript, your Honour. From the appeal book at page 27 onwards, it can be found there. Sorry, I withdraw that. This is the one which we have filed with our submissions. It's got handwritten notes on it.

PN672

THE DEPUTY PRESIDENT: I see.

PN673

MR DWYER: You say you have - you never received that, at that time?‑‑‑I can never remember seeing this, no. This is the one with the handwritten notes all through the agreement, is that - - -

PN674

Yes?‑‑‑Yes, I can't remember ever being sent that or seeing it.

PN675

When did you first see that?‑‑‑No, I'm saying I never - well, just today when you - just today is the first time I think I've had a good look at it. But if your question is did Brian Smith send that to me, no, I can't remember that.

PN676

Right. If I could just take you to that handwritten document?‑‑‑Yes.

PN677

You note in there that in paragraph 1.1, for example, Mr Smith is suggesting that should have the words - - -

PN678

MR GEE: I object to that. There's no identification of the author of handwritten amendments. This is the first time - the witness has just given evidence this is the first time he's seen the document. I can't see any utility at all - well, first of all I have an objection as to the characterisation of the document. I object to its tender and I say the line of questioning is not relevant to any material fact at issue.

PN679

THE DEPUTY PRESIDENT: Well, it's not - - -

PN680

MR DWYER: Your Honour, it will be tendered through Mr Smith.

PN681

THE DEPUTY PRESIDENT: Well, is Mr Smith going to give evidence that those are his - - -

PN682

MR DWYER: Yes, he is.

PN683

THE DEPUTY PRESIDENT: Is he going to give evidence that he gave a copy of that to Mr Fenech?

PN684

MR DWYER: Sorry?

PN685

THE DEPUTY PRESIDENT: Is he going to give evidence that he gave a copy of that document to Mr Fenech?

PN686

MR DWYER: He will give evidence that he suggested changes to the document, including - - -

PN687

THE DEPUTY PRESIDENT: To whom though?

PN688

MR DWYER: To Mr Fenech.

PN689

THE DEPUTY PRESIDENT: By way of giving him this document?

PN690

MR DWYER: I don't wish to say that from the Bar table but that was my understanding. I didn't anticipate some of this evidence but his evidence would be that he identified the ABN was incorrect and that the Pty Ltd should be added.

PN691

THE DEPUTY PRESIDENT: Yes, I see that in this statement. I don't see anything in his statement where he says he - that he gave a copy of that document to Mr Fenech.

PN692

MR DWYER: Yes, that's why I'm cautious about answering your question.

PN693

THE DEPUTY PRESIDENT: Yes, well I understand that so you can - unless the evidence is going to be that this document was given to Mr Fenech, I'm not sure how much further you can take this document. All that - I'm just trying to find the paragraph. Yes, he says the agreement - this is at paragraph 12, he says, "The agreement was not identified" et cetera, "at clause 1 it had a particular definition. The first time I saw the agreement" - where, sorry, yes?

PN694

MR GEE: Paragraph 17, your Honour.

PN695

THE DEPUTY PRESIDENT: Yes. He says he drafted a number of alterations, so he sent it to Mr Harpley.

PN696

MR DWYER: Yes. I'll step on and we'll certainly put that to him when he comes but I understand the point. I can't give you the answer to your question because I don't have that instruction, and nor have I sought them during the break.

PN697

THE DEPUTY PRESIDENT: No, and the difficulty is that this witness says he's never seen the document.

PN698

MR DWYER: Yes.

PN699

THE DEPUTY PRESIDENT: So you can ask this witness whether Mr Smith discussed any alterations to the agreement with him, you can ask him that.

PN700

MR DWYER: Yes. I'm going to come back to this, Mr Fenech, but Mr Smith said that you'd sent him a copy of an amended EBA or amended agreement which included a reference to radio linesman technician. You agree that you did send an agreement, be it a draft, to Mr Smith?‑‑‑I can't remember sending him an agreement. I know we talked about the issue of the radio linesman and that was resolved in that late night conference call where we explained what the undertakings would do and what they looked like and the effect it would have on the agreement and the Western Australian employees, so I cannot remember sending him an altered agreement.

PN701

Can I take you - one of the agreements we sent to you, it's got a heading on it attachment 5 at the top right-hand corner and in the bottom right-hand corner page 37, above page 1 - below page 1. Can you find that document?‑‑‑Yes, just a moment. Yes, attachment 5 with a yellow mark.

PN702

Yes, don't worry about the colours.

PN703

THE DEPUTY PRESIDENT: Well it's probably from my appeal book and it's tabbed with a yellow tab?‑‑‑Okay, yes, attachment 5, yes.

PN704

MR DWYER: If we go over to paragraph 1.1?‑‑‑Yes.

PN705

Sorry, before I do that. Well perhaps I'll do this first, you see there it says in the definition MTA, it's different to the previous version in the sense Mirait Technologies Australia Pty Ltd, and an ABN number which I believe is the correct ABN. Do you agree with that?‑‑‑Yes, that looks to be the case, yes.

PN706

You drafted this agreement, is that correct?‑‑‑I did draft the agreement. Yes, I'll assume this is one of mine, yes.

PN707

Mr Smith said you sent it to him. Is that correct?‑‑‑I can't remember looking at this one agreement.

PN708

I can take you on further to - - -

PN709

MR GEE: I'm sorry, there's no proper basis for putting that question either. Where's the evidence of that?

PN710

THE DEPUTY PRESIDENT: Other than the email which is at AB32.

PN711

MR DWYER: Mr Smith says it was emailed to him, we have - there's an email in the bundle which I'll go to soon but for the moment I'm identifying the document.

PN712

THE DEPUTY PRESIDENT: He's referring to - you look at the previous email it says, "Do you have a copy of the updated email?" blah blah blah. Reply is "See page 22". If you look at page 22 of the document that's attached that has the radio linesman technician.

PN713

MR GEE: I agree with everything your Honour's just said but there's no evidentiary basis to say that the document that starts at page 35 is attached to any of the emails - - -

PN714

THE DEPUTY PRESIDENT: That's the question he's asking, whether he sent that document to Mr Smith. I think there's foundation for the question.

PN715

MR DWYER: Yes, I just wanted to take him to page 58 or page - page 58 in the appeal book but page 22 of the agreement, just if you could have a look at the paragraph there Mr Fenech?‑‑‑So where - sorry, where am I looking again?

PN716

Of the document I sent you, page 22 of the agreement?‑‑‑Page 20- - -

PN717

Page 22 of the agreement?‑‑‑Yes, yes.

PN718

It has words there regarding radio linesman technician?‑‑‑Yes, I can see that.

PN719

So if I could ask you again, did you draft that version of the agreement? I'll put it to you, you did draft that version of the agreement didn't you?‑‑‑Yes, I did draft that at some stage in discussions.

PN720

You sent it to Mr Smith, that's correct isn't it?‑‑‑I can't remember. I honestly can't remember if I've sent that to Mr Smith.

PN721

Do you have a copy of the bundle of emails that we've just forwarded to you?‑‑‑Yes, I do. I'll just try and find that. Just bear with me one moment, sorry. Sorry, I thought I'd opened that. I'm just opening it now. It's still downloading. It's worked. Yes, I've got it, yes.

PN722

In that bundle there's nine emails identified on our copies, the top right-hand corner it's got email number 1 - - -?‑‑‑Yes.

PN723

I want to take you to email number 7?‑‑‑Email number 7. Yes, email number 7, attachment 4.

PN724

Yes. Your Honour, for identification it comes out of the appeal book page 31 to 35. Now starting at page 35?‑‑‑35, yes.

PN725

There's an email from Mr Kudray to yourself about Mr Smith being the one up manager, et cetera?‑‑‑Yes, 35, yes, I'm on 35.

PN726

The next one talks about a rigger's email. Going back to page 34?‑‑‑34, yes.

PN727

You say to Mr Fenech and to Mr Smith, "This is the classification" - - -

PN728

THE DEPUTY PRESIDENT: He says to Mr Kudray and Mr Smith.

PN729

MR DWYER: Sorry, my mistake, Mr Fenech. It's to Mr Kudray and Mr Smith. You say; "Gents, this is the classification of insert into EA", and there are some words there under the words "radio linesman technician", and then you say, "Any thoughts?". You've obviously sent that email?‑‑‑Yes, I did, yes.

PN730

If we go to the next - - -?‑‑‑What I would - yes, what I would say though is at the meeting the subsequent conference call with Brian Smith, the three employees et cetera, Adam Kudray, it was explained that we couldn't now change the agreement that had been voted on but what we could do which is what we did do was have the undertakings document. So it was explained to Mr Smith and everyone in a lot of detail that to ensure that we followed proper due process, that it would be incorporated into or clarified in the undertakings document.

PN731

Just on that, so prior to this you'd indicated you would change the EBA and then you've provided the words for them in Western Australia?‑‑‑Yes.

PN732

Then if we go to page 33, the next page in the chain, he says;

PN733

Do you have an updated EBA with the rigger radio linesman technician classification added to be able to email to me?

PN734

?‑‑‑Yes, I can see that, yes.

PN735

THE DEPUTY PRESIDENT: Mr Fenech, you'll see at that stage that the meeting to which you refer hasn't yet occurred?‑‑‑That's correct, yes.

PN736

MR DWYER: Yes, this is at 11.36 am, your Honour, so we make that presumption.

PN737

THE DEPUTY PRESIDENT: Well I don't make the assumption, I look at the next sentence.

PN738

MR DWYER: Yes. Then I know it's a little bit cut off, at 9.33 am, this is Western time and Sydney time may get in the way but you do send a copy of an agreement where you say, "See page 22"?‑‑‑I can't see any attachment though.

PN739

No, I understand that but the email - you did send an agreement, we'll go identification if there was or wasn't in a minute, but you did send an email with an agreement which said, "See page 22"?‑‑‑As I said, though, later that same day at two or 3 o'clock - - -

PN740

Could you answer my question?‑‑‑ - - - to explain that we couldn't deal with that radio linesman technician issue that way.

PN741

Could you answer my question? You did an agreement to Mr Kudray and Mr Smith with a note, "See page 22"?‑‑‑I can't remember doing that and what you've presented to me there doesn't convince me that I did because I can't see any attachment.

PN742

THE DEPUTY PRESIDENT: What was the reference to page 22?‑‑‑I'm not sure.

PN743

MR DWYER: Can I put to you that the document, the agreement we've just been looking at, and it's got Attachment 5 in the top right-hand corner, was the document attached to that email?‑‑‑So you're putting that to me, are you?

PN744

Yes?‑‑‑Like I just said, I can't remember doing it and even if I did do it, for the third time, we had a subsequent meeting that afternoon and explained that this issue would be incorporated into the undertakings document to ensure that we followed due and proper process, and that was agreed and understood by everyone in the meeting, Mr Smith included.

PN745

Are you saying to us that you may have sent that version attached to that email?‑‑‑No. One, I can't remember sending it and, two, what you have put in front of me doesn't convince me that I did. There's no attachment.

PN746

Mr Fenech, these nine emails they were provided to you some time ago weren't they?‑‑‑As part of the appeal book, is that what you mean?

PN747

I will leave that aside, I'd have to look that up, but when you prepared to give a statement on this had you seen these emails when you did your statement?‑‑‑I honestly can't remember because there's been that much information.

PN748

Not necessarily these emails, have you seen this particular email, or series of emails?‑‑‑Sorry, I can't hear you now.

PN749

Had you seen this particular series of emails before making your statement?‑‑‑I can't remember, honestly.

PN750

So you believe this email, then, is a fake?‑‑‑No, I'm not saying that. I'll just repeat what I've said, that there's no attachment on your - on that document you put in front of me. I can't remember doing it and, again for a fourth time, we clarified that in that afternoon's meeting, or the evening, that the only way to deal with this issue properly was to have an undertakings document. Which we did do, which was agreed, and we did do.

PN751

When I asked you before, when I referred to this document - this is the document headed Attachment 5 - didn't you agree with me that you'd prepared that document?‑‑‑Yes, it seems I've prepared that document, yes.

PN752

You've seen an email chain where people that asked for (indistinct) - asked you to provide a copy of the agreement with the amendment with the radio linesmen inserted in it? You'd been asked for that?‑‑‑Yes, they've requested that.

PN753

Requested that, and the email suggests you responded to it?‑‑‑I'm just saying that's very confusing, that email, on Tuesday 24 March at 9.33. That doesn't prove one thing or the other.

PN754

We will work that out. Mr Smith had spoken to you about the concerns of the radio line staff?‑‑‑Yes, we had talked about that.

PN755

Mr Smith raised with you the issue that the ABN wasn't correct?‑‑‑At some point he did, yes.

PN756

He also raised with you the issue that the name of the company wasn't correct, that it needed Pty Ltd on it?‑‑‑He may have, I can't remember that one.

PN757

Not only when you did this version, you not only inserted the radio linesmen you also corrected the ABN and the title of the company?‑‑‑I don't believe I did, because it was all about the integrity of the process and we had the vote in New South Wales. So, strictly there'd be no changes to the document other than the amendment of the undertakings.

PN758

I will put the question again. We're looking at this document which you said you prepared, the one which says Attachment 5, page 22. It's got more words added, you agree?‑‑‑Yes, from what you've showed me.

PN759

You agree that the definition of MTA has also been amended?‑‑‑Yes.

PN760

I thought you just said you hadn't amended the MTA definition - you agree you did change the definition of MTA?‑‑‑I honestly can't remember those details, they're fine points. But I keep coming back to the point that we had that meeting in the evening and it was explained then that we strictly couldn't change one dot of ink on the enterprise agreement that had been voted on, and we talked about getting further clarification through the undertakings document.

PN761

We will come back to that. Is it your evidence that you never sent this agreement identified as Attachment 5, you never sent that to Mr Smith?‑‑‑I want you to be very clear on this, I can't remember sending that email. Then what I'm also saying is that what you've put in front of me doesn't convince me that I did because there's no attachment.

PN762

I will put it to you, you did send that, (indistinct) just putting it for a specific reason. I put it to you, you did send that email to Mr Smith?‑‑‑Okay. I can't remember sending it to him, and then as I've said repeatedly even if I did we explained in the later meeting why we couldn't alter the enterprise agreement, and hence have an undertakings document.

PN763

I put it to you that the amendment you did in the definition of MTA was as a result of discussions with Mr Smith?‑‑‑As I said, I can't remember doing that.

PN764

I put it to you that that agreement identified as Attachment 5 was attached to the email from you on Tuesday 24 March at 9.33 am?‑‑‑Well I disagree, I just don't think that's clear, it's not proven one way or the other.

PN765

I put it to you - - -?‑‑‑That's my position.

PN766

- - - I put it to you that you sent an agreement over with the covering email saying, "See page 22", and page 22 included the words referring to radio linesmen?‑‑‑Okay, I think you've got my answer on that.

PN767

Your answer is that it didn't happen, is that correct?‑‑‑No, my answer is I can't remember doing it and the email you've presented there does have no attachment on it. In fact I could argue that that proves I did not send an attachment, because there is no attachment on your document.

PN768

THE DEPUTY PRESIDENT: Mr Fenech, while there's a gap, in your statement, in your further statement which I'd marked Exhibit 7, which is the statement of 25 August 2015, paragraph 6, and we had a discussion about this earlier in the day in relation to the January vote. Do you have that in front of you, paragraph 6?‑‑‑Yes, I do.

PN769

You said, "Prior to this vote I sent copies of one page to all team leaders in New South Wales and WA." I think I asked you when you counted the WA votes, and I think your answer was you couldn't remember?‑‑‑That's right.

PN770

During the proceedings before Deputy President Lawrence, by email of 28 April 2015 - this is after the CPU had filed some submissions in opposition - there was a reply given and you probably don't have the appeal book in front of you but I just want to read something to you, and this appears at p.870 of the appeal book.

PN771

This is in answer to a submission that following the failed vote the scope of the electorate had changed with the intention of eliciting a desired result, and it's indicated there that the MTA rejects the accusation, has indicated the scope had not changed, the change being referred to is the three staff based in WA:

PN772

These staff did not vote in the first two instances.

PN773

That assertion seems inconsistent with the evidence you have given in paragraph 6?‑‑‑I can't explain that.

PN774

I will now ask you whether you maintain that the evidence in paragraph 6, which is to the effect that employees in WA did get a vote in the first two ballots?‑‑‑Sorry, the question is did the - - -

PN775

Do you maintain the evidence that you've given in paragraph 6 that voting - the suggestion is that WA employees did vote in the first two ballots, or at least in the January 2015 ballot?‑‑‑They may not have needed to vote because there was a majority no vote in New South Wales in the first voting.

PN776

Yes, Mr Dwyer?

PN777

MR DWYER: I won't go back to that but I think you will appreciate - I appreciate what you have asked whether he should amend his statement or not. I won't go there. If we go back to when you began giving evidence this morning. You were asked if Mr Smith volunteered and the suggestion was that Mr Smith volunteered to assist these employees. Do you have any firsthand knowledge that he volunteered to assist these employees?‑‑‑I believe that's what he told me, or words to that effect.

PN778

You believe that?‑‑‑Yes.

PN779

Mr Smith says that he was approached by the employees. Are you saying that's incorrect?‑‑‑My recollection was that he felt there was a need for them, for the three employees, to have a representative. I can't remember him telling me that he'd been approached by the WA employees.

PN780

At paragraph 16 Mr Smith says:

PN781

I advised Mr Kudray that the staff had approached me. Mr Kudray told me to contact Mr Fenech. Mr Kudray told Mr Fenech words to the effect that I might be difficult to deal with -

PN782

Et cetera. You said something about that in your evidence. Are you saying that Mr Kudray did not say anything to you about that?‑‑‑Yes, he did not.

PN783

At paragraph 15 Mr Smith says that:

PN784

The riggers were not happy with the propose agreement and had not been consulted prior, or given any opportunity to provide feedback. There was no mention of a rigger designation and the pay rises (indistinct) listed designations were well below their actual pay rate.

PN785

I will stop there. Do you have any difficulty with that summary?

PN786

MR GEE: I object to that. Mr Smith's evidence appears to be recounting his recollection of the discussions he may or may not have had with three employees. What Mr Fenech - I don't think the question can be put in that way.

PN787

THE DEPUTY PRESIDENT: I think that's fair enough Mr Dwyer.

PN788

MR DWYER: I will put it another way, your Honour. One way or another the problems of the riggers was brought to your attention, that's correct isn't it?‑‑‑The problems, what problems?

PN789

The problems the riggers had raised, specifically, they were not mentioned in the agreement?‑‑‑Yes, that was raised and, yes.

PN790

At paragraph 17 Mr Smith says:

PN791

For example, the ABN was incorrect.

PN792

You agree that that was the case?‑‑‑He did say that to me, yes.

PN793

He said the company name did not Pty Ltd included?‑‑‑I can't recall that.

PN794

At paragraph 21 he says, referring to emails we went to before, you sent an email headed - you can read paragraph 21?‑‑‑Yes, I can read that.

PN795

I put it to you, you did send that email. I think you've agreed to that earlier, that's correct isn't it?‑‑‑No, I didn't send an email.

PN796

I will specifically put to you then that at 11.27 on 23 March you sent an email to Mr Kudray and Mr Smith stating words to the effect, "Guys, this is the classification I'll insert in the EA", et cetera. You did send that, didn't you?

PN797

THE DEPUTY PRESIDENT: I think you should take him to the document rather than to the witness statement.

PN798

MR DWYER: Email seven, which was sent - - -?‑‑‑Seven, yes.

PN799

Email seven?‑‑‑Sorry, I'm just trying to find email seven.

PN800

This is the one we went through before if that helps?‑‑‑Yes, Attachment 4, email seven, yes.

PN801

Specifically on the - the appeal book is the bigger numbers on the bottom of those emails and appeal book 34, page 34, and that email from you on 23 March at 11.27 am. I'm putting it to you, you sent that email to Mr Kudray and Mr Smith?‑‑‑Is this the email - what time is that, of the email, you're talking about?

PN802

It's at the top of the page, 23 March at 11.27 am?‑‑‑I've got 11.36 and then I've got 9.33.

PN803

Are you looking at page 34?‑‑‑Page 34, okay. Yes, 11.27, okay, "Guys, this is the classification I'll insert in the EA." Yes, I did send that.

PN804

You did send that?‑‑‑Yes. However, as I've explained, we - - -

PN805

No, you've explained that, there's no need to go back. I'm just asking you did this happen. Then at 11.36, this is on page 34?‑‑‑Yes, 11.36.

PN806

You received an email from Mr - - -?‑‑‑Smith.

PN807

- - - Smith?‑‑‑Yes.

PN808

Requesting a copy of an updated EBA with radio linesman technician classification added. You received that email didn't you?‑‑‑Yes.

PN809

I will go back just for clarity. At 9.33 on 24 March you sent an email headed, "Radio lines technician", see page 22. You sent that, didn't you? I put it to you, you sent that?‑‑‑It appears like I've sent it, yes.

PN810

It would also appear very likely, I put it to you, that there was an attachment to that email?‑‑‑Like I said, that's unclear, I can't remember attaching it.

PN811

I put it to you there was an attachment, and I'm looking at paragraph 24, I'm going to put this to you. I put it to you there was an attachment to - and at page 22 there was a reference to radio linesmen?‑‑‑You've got my answer on that.

PN812

Again I put it to you that there was an attachment there and it had an amended definition of MTA?‑‑‑All I can say is why doesn't the attachment appear in the email?

PN813

I'm putting to you that you had attached - sorry - you had an attachment to the email with an amendment to the definition as well.

PN814

THE DEPUTY PRESIDENT: Mr Dwyer, can I ask you this: I'm assuming that there is a further email above that email which has been redacted.

PN815

MR DWYER: Yes.

PN816

THE DEPUTY PRESIDENT: It has not been admitted for the purposes of protecting the source. I am assuming that is the case.

PN817

MR DWYER: I have got no idea.

PN818

THE DEPUTY PRESIDENT: Does the CEPU have the original un-redacted form? Because whether or not an attachment attaches, or an email indicates an attachment, depends on whether it's forwarded and in what way it's forward, which might explain part of the mystery.

PN819

MR DWYER: By printing an email of course you don't print the attachment but there should be an indication that there is an attachment, I understand.

PN820

THE DEPUTY PRESIDENT: There can be, it depends on what you print. If I forward you an email it will - on at least my system - will allow me to select whether or not - or if I reply to an email, it will allow me to select whether or not I chose to re-attach the attachment. If I select no, because it's easier to send, then it won't appear.

PN821

What I'm saying is that the email that is attached there at 32 is not the only email, there's another email which has been redacted by putting a piece of paper over the top of it, by the look of it.

PN822

MR GEE: I am standing, your Honour, because I wish to make - the proper basis to say this is probably by way of an objection, but I wish to do so, in fairness, with Mr Fenech on mute, if that's possible.

PN823

THE DEPUTY PRESIDENT: Sure. Mr Fenech, we are just going to put you on mute for a few minutes, okay?‑‑‑Okay, thank you.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [3.10 PM]

PN824

MR GEE: I am hoping I can assist. I'm hoping this can be dealt with in short order to save us all some time here. That is this: it seems to me that the proper concern, or complaint, as between the respondent and the applicant is whether a particular amended version of the agreement was given to the three WA employees, or not, and, if so, what are the consequences of that?

PN825

THE DEPUTY PRESIDENT: Yes.

PN826

MR GEE: We haven't got any evidentiary basis to suggest - I withdraw that. It is clear that an amended version of the document was created. Mr Fenech has given evidence in two statements where, in effect, he admits and acknowledges that there was that email correspondence which Mr Dwyer is now taking him to, but then ultimately says what the outcome was.

PN827

If it is necessary to deal with by way of concession I will do it, but can do it by either saying this is an irrelevant line of examination because it's not addressing the material fact at issue, or I can likewise deal with it by conceding it. We don't say that there was no amended version of the enterprise agreement, there clearly was. We say the proper contest is whether the document was given to the three employees and what the consequence of that is, if anything. What Mr Dwyer is doing now, I don't think, addresses either of those questions.

PN828

THE DEPUTY PRESIDENT: I suppose Mr Dwyer is trying to establish that Mr Smith was given a copy by Mr Fenech and Mr Smith will give evidence that he gave a copy of that document to the three employees.

PN829

MR GEE: Yes, and that is Mr Smith's evidence.

PN830

THE DEPUTY PRESIDENT: He hasn't given it yet.

PN831

MR GEE: Mr Fenech's evidence is that the WA employees were not ever given an amended agreement to vote on. Implicit in that is that there is an amended version of the agreement that exists.

PN832

THE DEPUTY PRESIDENT: But I assume Mr Dwyer is - this will be the subject of submissions - trying to build a case to say there are other reasonable grounds for assuming that the employees did not genuinely approve the agreement, because they were given a copy of the agreement by Mr Smith and then thereafter there was a discussion about an undertaking which was to the same effect as the amendment, and they voted, in effect, on a document which ultimately wasn't the document that was lodged in the Commission. I assume that is the argument.

PN833

MR GEE: That argument does not at all rely on this line of examination.

PN834

THE DEPUTY PRESIDENT: Save that - I mean if Mr Smith just gave them the document that he amended himself and created following his attempt at pencilling in various amendments that would be one thing. I think Mr Dwyer is trying to establish a connection that this is the document that Smith was given and that Smith gave this document to the employees.

PN835

I think we've taken - that said, I think we've taken Mr Fenech as far as we can. He says, "I don't remember sending an email attaching the agreement." He says, "But even if I did my subsequent conversations clarified the position", vis-�-vis "how we'd deal with it." He says he did send the email at AB34, he did receive the email at AB33, and it appears like he sent the email although he has no recollection of it at AB32, and notes that there is no annexure, or attachment. That is his evidence and I'm not sure that we can take it any further than that.

PN836

MR DWYER: I think I've just about finished I just did want to - Browne v Dunn also puts a fair obligation on me to do it in case - - -

PN837

THE DEPUTY PRESIDENT: You've put those propositions to him.

PN838

MR DWYER: Yes, I was just covering off each - - -

PN839

THE DEPUTY PRESIDENT: Yes. No, I understand.

PN840

MR DWYER: Each of cases.

PN841

THE DEPUTY PRESIDENT: All right, we'll get Mr - - -

PN842

MR DWYER: You did ask me a question earlier, do we have the original. These documents were put in during an appeal, as an appeal in the appeal book by the CEPU at the time.

PN843

THE DEPUTY PRESIDENT: They were also - - -

PN844

MR DWYER: I don't have the original email is the short answer to - - -

PN845

THE DEPUTY PRESIDENT: They were also given - these are the ones in the appeal book.

PN846

MR DWYER: Yes.

PN847

THE DEPUTY PRESIDENT: But they were also given to the Deputy President below because they were attached to the CWU's submissions.

PN848

MR DWYER: Yes.

PN849

THE DEPUTY PRESIDENT: Yes.

PN850

MR DWYER: I can't answer what's in the redacted - - -

PN851

THE DEPUTY PRESIDENT: No, no, if you wanted to sort of pursue whether or not they were attached or not, that would be one way of finding out. As I say, I'm not sure that it's going to change - Mr Fenech's answer is that he doesn't recall sending them.

PN852

MR DWYER: No.

PN853

THE DEPUTY PRESIDENT: So let's get Mr Fenech back on the phone.

PHONE LINK ESTABLISHED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [3.17 PM]

<ANDREW JOHN FENECH, RECALLED ON FORMER AFFIRMATION� [3.16 PM]

PN854

THE WITNESS: Hello?

PN855

THE DEPUTY PRESIDENT: Yes, Mr Fenech?‑‑‑Yes, I'm here. Sorry, yes.

PN856

That's all right. Apologies for that. We'll resume.

PN857

Yes Mr Dwyer?

CROSS-EXAMINATION BY MR DWYER, CONTINUING牋牋牋牋� [3.16 PM]

PN858

MR DWYER: Mr Fenech, can I take you to paragraph 25 of the statement of Mr Smith?‑‑‑25, yes. Yes.

PN859

And Mr Smith says he gave the three rigging staff what is called the updated copy of the agreement containing the reference to radio linesman technician and then he goes on and says - and you were asked about this, this morning:

PN860

I was informed by Mr Fenech that this was now the latest version of the EA and superseded the previous versions.

PN861

I put it to you that's what you've told Mr Fenech - sorry, Mr Smith?‑‑‑No. No, I never did.

PN862

Then in my email at 11.36 on Tuesday the 24th - this is at page 33 of the emails?‑‑‑Yes.

PN863

He refers to a phone hook-up at 2 o'clock that day?‑‑‑33. All right, "Hook-up at 1400 Western Standard Time", yes.

PN864

And in that hook-up did you discuss that - I withdraw that. Now in the hook-up - so the timing of this was the staff in New South Wales had voted at 7 am on 23 March, on Monday 23 March?‑‑‑Yes.

PN865

At 7 am?‑‑‑Yes.

PN866

And the vote was known to be a tie on that day?‑‑‑Yes.

PN867

And we're now talking about the afternoon - and the Western Australians knew the results in New South Wales?‑‑‑I'm not sure.

PN868

And we're now talking about Tuesday afternoon. They had still not voted?‑‑‑Yes.

PN869

The vote was set for 7 am on the 23rd in Western Australia. That was set out in your email. Why did the vote not take place at that time?‑‑‑Well, the 7 am on Monday the 23rd was really the time for New South Wales. The remote offices, you know, had more flexibility about when they voted and from memory the Western Australian office, you know, wanted a bit more time, so.

PN870

Yes, and why did they want more time?‑‑‑Well, to have that conference call on the 23rd - sorry, on the - or to have that hook-up just to talk through some of those issues.

PN871

So that's - - -?‑‑‑That ended up being clarified in the undertakings.

PN872

At that stage the indication to you was they would be voting no, is that correct?‑‑‑No. No, I didn't think it was like that. No.

PN873

And this was the first time they would be voting on an agreement, wasn't it?‑‑‑Yes I think it was the first time we'd actually got them to vote, from memory.

PN874

In your evidence this morning you said at the meeting you had had an indication that the three staff were going to support the agreement?‑‑‑Yes.

PN875

And at the meeting I think you said there were the three staff who were from - - -?‑‑‑Present.

PN876

Who were present. It has been indicated, although there's a little confusion, that they perhaps were Filipino but Malaysian residents, not that that matters but they were certainly people with English as a second language?‑‑‑Yes.

PN877

And they were in a meeting room with a number of their managers?‑‑‑Yes.

PN878

And I think you listed at least four managers, some were on the phone?‑‑‑On the phone yes, there was Mr Smith, Mr Kudray in WA and then, yes, three others on the conference call.

PN879

So there were five managers and three employees in the meeting?‑‑‑Yes, on the call. Yes.

PN880

And three employees on a 457 visa?‑‑‑Yes.

PN881

Do you think that might give rise to an apprehension by them - - -

PN882

MR GEE: I object. It calls for an opinion.

PN883

THE DEPUTY PRESIDENT: It does and I'm not sure it - - -

PN884

MR DWYER: I withdraw it.

PN885

THE DEPUTY PRESIDENT: Yes. Thank you.

PN886

MR DWYER: At this stage you were certainly keen to get the vote finished, weren't you?‑‑‑Get through the process, yes.

PN887

Yes, and your evidence I think this morning was that - and this was on the 24th so, later that day if I recall what you said this morning, you said that their votes were formally lodged on the 24th?

PN888

THE DEPUTY PRESIDENT: I actually think his evidence was - - -

PN889

MR DWYER: Or the 23rd perhaps?

PN890

THE DEPUTY PRESIDENT: No, his evidence this morning was that they voted on the 25th. There was a meeting on the 24th and at the end of that the employees were asked to sleep on it and vote the next day.

PN891

MR DWYER: Yes.

PN892

THE DEPUTY PRESIDENT: That was his evidence.

PN893

MR DWYER: I recall that. There was a statement - I won't press it. I thought I heard a statement before that which confused me. I'll put it down to confusion rather than - I'll withdraw the question.

PN894

So the meeting was on Tuesday the 24th. Can I take you to that bundle of emails again?‑‑‑Yes.

PN895

And the email number 3?‑‑‑Email number 3. Just a moment. Yes.

PN896

It's an email from you to Mr Fenech. You wrote that email?

PN897

THE DEPUTY PRESIDENT: Not to himself I don't think.

PN898

MR DWYER: Sorry, to Mr Egan. My apologies?‑‑‑Yes. Yes.

PN899

THE DEPUTY PRESIDENT: I only do that when I don't want any argument.

PN900

MR DWYER: Yes, although sometimes, your Honour, I copy to myself for various reasons, to capture.

PN901

It says:

PN902

Please be advised that the enterprise agreement vote is now completed. A majority yes vote was achieved.

PN903

?‑‑‑Yes.

PN904

Yes, now that was at 9.34 Australian Eastern Daylight Time?‑‑‑Yes.

PN905

That would have been 6.34 am in Perth?‑‑‑I'm not sure whether it's two or three hours difference. I think it was two.

PN906

THE DEPUTY PRESIDENT: It's three?‑‑‑ I think it was two then but that could be - two hours difference.

PN907

It's three at that time?‑‑‑Was it? Okay.

PN908

Daylight Saving is at the end of March.

PN909

MR DWYER: So it was 6.34 am Perth time?‑‑‑Mm‑hm.

PN910

And the staff wouldn't have started work by that time, would they?‑‑‑Look, they may have. I'm not sure. I obviously got the fax, the votes faxed back to me by that time.

PN911

So the votes were faxed to you?‑‑‑Yes, that's right.

PN912

And you say then you sent the - - -?‑‑‑Sorry. Sorry, I withdraw that. They were scanned and emailed to me. Sorry.

PN913

So you received scanned and emailed votes. You counted them?‑‑‑Yes.

PN914

There were no bargaining agents present?‑‑‑No one else was present. No.

PN915

And we all can see that it's in the document that three of them voted for the agreement?‑‑‑Yes.

PN916

Can I take you to email 8?‑‑‑Yes.

PN917

THE DEPUTY PRESIDENT: Sorry, Mr Dwyer, what page in the appeal book?

PN918

MR DWYER: Sorry, in the bundle of emails.

PN919

THE DEPUTY PRESIDENT: Yes, I have them in the appeal book.

PN920

MR DWYER: Sorry, not in the appeal book, in the bundle of emails that will be tendered. The bundle of nine emails that accompanied by submissions.

PN921

THE DEPUTY PRESIDENT: I see. Okay, thank you.

PN922

MR DWYER: Have you got that, Mr Fenech?‑‑‑Yes. I'm on email 8.

PN923

Yes. See email 8, it's from Mr Kudray to yourself with copies to Mr Smith and others?‑‑‑Mm-hm.

PN924

It says "Hi Andrew, I have just done a round trip to site and the riggers have ticked the boxes as per attached. Please let me know if there's anything else outstanding from WA"?‑‑‑Mm-hm.

PN925

Firstly, the attachment was the three ballot papers?‑‑‑Right, yes, take your word for that.

PN926

You see from the time it's 4.29 pm?‑‑‑Mm-hm.

PN927

That would've been West Australian time?‑‑‑Yes.

PN928

It would have been 7.29 pm on 25 March?‑‑‑Yes.

PN929

If I compare that with the date which we've just been through of email three, you could not possibly have received that before you sent the email number three, the one we've just discussed at 9.34 am?‑‑‑Look, I can't remember what happened there. I could have got verbal confirmation that the three people had voted yes. I can't remember, do you know what I mean. So in the morning I might have got verbal confirmation that the voting slips had been distributed and that they'd all three had been ‑ ‑ ‑

PN930

THE DEPUTY PRESIDENT: Mr Fenech, do you actually remember receiving verbal confirmation?‑‑‑No, I can't, no. I'm only supposing, so, yes.

PN931

Well why don't you confine your evidence to what you remember?‑‑‑Okay. Well I can't explain that, the time difference.

PN932

MR DWYER: You made the call the vote was up at 6.34 am on 25 March?‑‑‑Yes, it looks like that, yes.

PN933

You didn't get the ballot papers from the West Australian staff until 7.30 pm that same day?

PN934

MR GEE: I object to that. It's not what the email's saying. I think it's only a matter of timing but all the other emails you've taken him to, the time is automatically corrected and it's 4.30 not 7.30 that's all. Otherwise I don't - - -

PN935

MR DWYER: Perhaps that won't matter whether it's 4.30 or 7.30. The fact is it was well after - - -

PN936

MR GEE: Agreed.

PN937

MR DWYER: - - - the call had been made?‑‑‑Sorry, are you addressing me now?

PN938

THE DEPUTY PRESIDENT: I think the people at the bar table are squabbling, Mr Fenech, so you can just relax for a minute?‑‑‑Okay, thank you.

PN939

MR DWYER: Your Honour, I think perhaps I don't need pursue that but the point is that it was many hours afterwards that he was provided with the - - -

PN940

THE DEPUTY PRESIDENT: I'm happy to stand corrected but my perusal of each of the emails that is sent and received indicates that when a email is sent from the eastern seaboard, it bears the eastern seaboard time. When it is sent from the west, it bears the west time so in each case you have to adjust that time to take into account the time the recipient received it.

PN941

MR DWYER: Yes. All I'd say in response to the objection is that it doesn't matter in a sense whether it's - - -

PN942

THE DEPUTY PRESIDENT: I understand your comments. Even if that's eastern daylight savings time rather than West Australian standard time, the point is the same, yes.

PN943

MR DWYER: All right. If I take you to paragraph 28 ‑ ‑ ‑?‑‑‑Paragraph 28 of Mr Smith's statement is it?

PN944

Yes?‑‑‑Just one moment. Yes, 28, yes.

PN945

The first sentence, so might refer to, "Management wanted a vote of three staff there and then". I think you agreed that you certainly wanted to vote as soon as possible. That's correct isn't it?‑‑‑No, it was just going through the process and the fact was they had the night to sleep on it.

PN946

"I was also asked to table all the changes that I proposed (see handwritten previous version of the agreement) during this meeting but this was abandoned by the MTA management due to the many changes and corrections submitted". I think earlier you said that he wasn't asked to table those changes. Do you stand by that?‑‑‑I don't believe he tabled those changes, no.

PN947

I think he's saying he didn't table them because you didn't want them because they were too numerous? Whatever - - -

PN948

THE DEPUTY PRESIDENT: Sorry, where are you at, Mr Dwyer?

PN949

MR DWYER: I'm at 28, your Honour, paragraph 28 of Mr Smith's statement. "I was also asked to table all the changes I had promised". I'll just stop there. Do you disagree with that do you?‑‑‑Yes, I don't believe he was asked to table anything.

PN950

THE DEPUTY PRESIDENT: Well that evidence, on its face, seems ambiguous We don't know who asked him.

PN951

MR DWYER: Yes. I'll move on though.

PN952

THE DEPUTY PRESIDENT: On one view, he was asked by the employees to - yes.

PN953

MR DWYER: Yes. I'll move on. Paragraph 29, Mr Smith talks about confusion about the agreement. He said "There was no version number to identify". Do you say he never raised the issue of confusion?‑‑‑Well I thought we all very early on agreed that we had the right agreement in front of us that we were talking about. That was one of the first steps we confirmed so I honestly don't believe that was raised about confusion about which - yes, I don't believe that 29 is true, to be honest.

PN954

Mr Smith would say he had a copy of an agreement which had the radio linesmen included in it, we've discussed this earlier, and your evidence has been, to this point, that you don't remember sending that to him. Nevertheless do you agree he had a copy?‑‑‑I don't know what he had.

PN955

Do you know where he may have obtained that copy?‑‑‑No.

PN956

I was suggesting - - -

PN957

THE DEPUTY PRESIDENT: He doesn't know what he had. He can't give evidence about - - -

PN958

MR DWYER: Yes, I'll withdraw it, yes.

PN959

THE DEPUTY PRESIDENT: - - - where he obtained something he didn't know he had.

PN960

MR DWYER: You said during the meeting with the three staff present that you indicated - - -?‑‑‑Yes. Yes, the three staff, the three West Australian riggers were present.

PN961

Yes, I'm referring to it was a meeting where the three staff were present. I'm just trying to identify when. You said in your earlier evidence that to allay their fears, you would give an undertaking to the Commission?‑‑‑Yes, that's right.

PN962

That overcame the objections that they had to the agreement?‑‑‑Yes.

PN963

You indicated - - -?‑‑‑Well just to clarify, I don't think there was objections to the agreement but the undertaking certainly provided some further clarification.

PN964

Yes, Mr Smith has indicated one of the objections was their salaries in the agreement was well below their actual salaries. That was raised with you wasn't it?‑‑‑I can't remember that but - - -

PN965

Sorry, I'll withdraw that. I'll just put it clearer to you. When they saw the agreement they didn't see radio linesmen there. They saw other designations there. The salaries were well below their actual salaries. That was their concern, was one of them?‑‑‑Yes, I can't remember. Could have been, I can't remember.

PN966

The other concern they had was they weren't mentioned at all. That was another - - -?‑‑‑Yes, well hence - yes, that was clarified in the undertakings.

PN967

Your earlier response was to amend the agreement. I won't go back there but you had proposed to put them in the agreement. Then, for whatever reason, you decided that you'd explain to them that you'd give an undertaking?‑‑‑Yes, because that was the proper legal process to go through.

PN968

You told them that it can be fixed by giving an undertaking, that was a legal way of doing it?‑‑‑Yes, essentially, yes.

PN969

Based on that, and no doubt other things, that when they voted they didn't mind that there would be an undertaking?

PN970

MR GEE: I object to that. Calls for speculation.

PN971

THE DEPUTY PRESIDENT: I don't think he can give evidence about what they had in mind.

PN972

MR DWYER: When they left the meeting and subsequently voted, they took with them your view that an undertaking was a legal way of fixing it?

PN973

MR GEE: I object to that too.

PN974

THE DEPUTY PRESIDENT: This witness has already given evidence of what he told them, that's it. What they made of that, I don't know.

PN975

MR DWYER: Do you have the statement by Mr Harpley?‑‑‑Yes, I do.

PN976

Paragraph 16, Mr Harpley?‑‑‑Yes.

PN977

Mr Harpley says there "Not all staff were present", we've dealt with that. "It was decided the delegates along with Greg Evans and Andrew Fenech to exclude staff who were not present. That is, they would not be able to vote". That occurred didn't it? I put it to you that occurred?‑‑‑I honestly can't remember that. Not all staff were present it was decided by delegate. They were not present, that (indistinct) was not - no, I don't believe that happened actually. I'm just re-reading it. I don't believe that happened.

PN978

Did you ever receive a vote in an envelope signed by Mr Harpley and Mr Egan?‑‑‑I can't remember, honestly can't remember.

PN979

Mr Harpley, at paragraph 17, says "Two clerical managerial staff not involved in any earlier votes for the EBA", sorry, "The two clerical managerial staff were not involved in the earlier votes in the EBA. We were told that the two staff members were assigned to field staff roles on that day as their position required them to be field based employees". Firstly, the two people, one Mr Jake Martin, the other Mr Richard Morgan, are you aware of those two names?‑‑‑Not really, no.

PN980

It's in the next paragraph. Who provided you with the list of the staff who could vote?‑‑‑From our payroll records.

PN981

The payroll records would have all staff on there, that'd be correct wouldn't it, including managers?‑‑‑Yes, we had to decipher who was an eligible person to vote.

PN982

Who decided that?

PN983

MR GEE: I object. This goes to an issue that's not at issue in these proceedings. There's no allegation about group fairly chosen or scope or coverage.

PN984

THE DEPUTY PRESIDENT: Where's the question going, Mr Dwyer?

PN985

MR DWYER: Yes, I'm probably at a point where this witness may not be able to assist. I'm really looking at who - I understand it does go to that but the issue before you is can the applicant satisfy you that all steps have been done, and this was raised in our evidence that's why I've gone to it. It would appear this witness can't assist so I can't really go any further with that.

PN986

THE DEPUTY PRESIDENT: Well let's move on then.

PN987

MR DWYER: At paragraph 17, Mr Harpley says "I questioned the inclusion of two office clerical management staff as I felt that the vote was being stacked". I'll stop there. You answered that question earlier. I put it to you that question was asked?‑‑‑It never was, yes, and I refute completely any allegation that we stacked voting or anything like that, so complete nonsense.

PN988

At paragraph 23, he talks about Graham Brough?‑‑‑Yes, yes.

PN989

You indicated before that you've received all the votes from WA and, sorry, all the votes from New South Wales and three from WA. You didn't mention this vote which is a Queensland vote did you?‑‑‑This isn't - Graham Brough's not the Queensland employee.

PN990

Sorry, I'll withdraw that. I just want to clarify just a couple of what I call the Browne v Dunn type things and I'll be finishing, your Honour. I just need to take you back to Mr Smith's statement, Mr Fenech?‑‑‑Yes.

PN991

Paragraph 30?‑‑‑Yes.

PN992

You were asked about this paragraph and I think the first four and a half lines of the paragraph. I put it to you that Mr Smith did say that the process was out of line?‑‑‑Well that final meeting on the Tuesday, the conference call, as I said, was amicable and agreeable.

PN993

Yes, I'm not asking you do you agree with the statement or whether it's correct or not. I'm asking you did he say words to the effect that management was out of line?‑‑‑I can't honestly remember if he did say that.

PN994

I'm going to wrap this up soon so I'm going to put it to you that he did but I'll go with the next few?‑‑‑Okay.

PN995

That you weren't following the proper process, the Fair Work processes. Was that said?‑‑‑I don't believe so.

PN996

Did he point out that New South Wales was voting on a different agreement?‑‑‑Look he may have but we agreed we were all looking at the same agreement when we had our final meeting.

PN997

As I said before, I put it to you that he said words the process was out of line?‑‑‑He may have done but I honestly can't remember and if he did, I would have outlined that the process was correct and proper in my view.

PN998

I put it to you he put it to you very similar, that you were not following the proper process?‑‑‑Yes, he may have. I honestly can't remember.

PN999

I put it to you that he said that New South Wales was voting on a different agreement?‑‑‑No. No, I'm sure he didn't say that.

PN1000

At paragraph 31, halfway through it says "The other manager said that Mr Fenech would sign the statutory declaration". Was that said?‑‑‑It may have been explained about the F17.

PN1001

Was it said that it absolved management from responsibility?‑‑‑No, no.

PN1002

Was it said that - sorry, did you say that presumably if it was false, you'd face a fine or other penalties?‑‑‑I can't remember having that conversation or saying those things.

PN1003

He says, the last line, he quoted parts of the Fair Work Act. Did he quote parts of the Fair Work Act?‑‑‑Who? Did Mr Smith quote sections of the Fair Work Act?

PN1004

Yes?‑‑‑I can't remember.

PN1005

Well I put it to you, I'll go backwards, that meeting did get heated?‑‑‑Which meeting are you talking about?

PN1006

This is that meeting on that afternoon?‑‑‑No, no, reject that.

PN1007

You're talking about a meeting where the three staff were present aren't you?‑‑‑Yes, I'm talking about the conference call where the three staff were present in WA and we had a number of other people on the call.

PN1008

I put it to you he had said that management were knowingly outside the correct process?‑‑‑No.

PN1009

I put it to you that Mr Fenech's - sorry, you indicated you would be signing a statutory declaration, you may have done that. I put it to you that it was said that management would be absolved of responsibility?‑‑‑No, reject that.

PN1010

I put it to that you'd indicated that you would face a fine or other penalties if you got it wrong.

PN1011

THE DEPUTY PRESIDENT: Mr Dwyer, there's one thing to avoid Browne v Dunn, it is another to repeat the same questions. You asked that question three times now.

PN1012

MR DWYER: Okay. I think your Honour understands where I've gone there.

PN1013

THE DEPUTY PRESIDENT: I do.

PN1014

MR DWYER: I'll move on.

PN1015

THE DEPUTY PRESIDENT: I'm just pointing out you've already asked all of those questions on a number of occasions.

PN1016

MR DWYER: I have no further questions, your Honour.

PN1017

THE DEPUTY PRESIDENT: Any re-examination, Mr Gee?

RE-EXAMINATION BY MR GEE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [3.57 PM]

PN1018

MR GEE: Mr Fenech, it's Ben Gee here again. You were asked some questions about your further statement, which is exhibit 7, and in particular at paragraph six. I'll just ask you to turn to paragraph six of your statement of 25 August please?‑‑‑Statement number six, yes.

PN1019

No, your further statement of Andrew Fenech you signed on 25 August, and at paragraph six?‑‑‑Yes, got that.

PN1020

This goes to some questions you were asked about the first vote and as I recall it, you didn't recall if - at one point in your evidence you suggested you didn't recall the WA employees voting?‑‑‑Yes.

PN1021

At another point in your evidence, you agreed with the proposition that the vote on 24 March was the first time the WA employees had voted. Do you recall that?‑‑‑Yes, yes.

PN1022

If you look at paragraph six of your statement you say that in January you had sent the voting form to team leaders in New South Wales and WA?‑‑‑Yes.

PN1023

You asked them, being the team leaders in New South Wales and WA, to explain to the team how the vote would occur?‑‑‑Yes.

***牋牋牋� ANDREW JOHN FENECH牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� RXN MR GEE

PN1024

Well, what do you say to explain why it is that the WA employees did not actually go ahead and conduct a vote in January?‑‑‑The simple reason was there was a large majority no vote in New South Wales and hence would have been a fruitless exercise to have a vote with three employees in Western Australia.

PN1025

Do you say that the group of employees who voted in New South Wales - no, I withdraw that, it's not a matter arising.

PN1026

THE DEPUTY PRESIDENT: And it was leading.

PN1027

MR GEE: You were asked some questions about your email, which is exhibit 4, it's your email of Friday, 13 March 2015 to a number of people, including Gary Searston and Adam Kudray?‑‑‑Yes.

PN1028

In that email you say "Be aware, another vote will be conducted at 7.00 am Monday, 23 March 2015"?‑‑‑Yes.

PN1029

I recall that it was your evidence that that related, in particular, to the New South Wales group of employees?‑‑‑Yes.

PN1030

Your evidence was that there was some flexibility given to the other state managers in relation to their remote locations or words to that effect, is that fair?‑‑‑Yes, that's right, they had the flexibility and we had phone discussions about when they might do that.

PN1031

Do you know, or can you say, what information or what steps were taken by Adam Kudray in WA and secondly, Gary Searston in Queensland, to inform the employees in those states of the time and place of the vote?‑‑‑Yes, I don't really know. That was left to their discretion, to be honest.

PN1032

But do you say you - no, I withdraw that. No further questions.

PN1033

THE DEPUTY PRESIDENT: Yes, thank you, Mr Gee. Mr Fenech, thank you for your evidence. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [4.03 PM]

PN1034

THE DEPUTY PRESIDENT: Mr Dwyer, you referred to a number of emails which you put to the witness. What do you want to do with those?

PN1035

MR DWYER: I'll put them in through this next witness, Mr Smith.

PN1036

THE DEPUTY PRESIDENT: All right. As I indicated earlier, I intend to sit until 6 o'clock, subject to the parties' availability. If the parties aren't available, let me know. I can understand that you may have family or other commitments.

PN1037

MR DWYER: I'm available.

PN1038

THE DEPUTY PRESIDENT: That's fine, quarter to is fine, Mr Gee.

PN1039

MR GEE: Thank you.

PN1040

THE DEPUTY PRESIDENT: My apologies for bastardising your surname this afternoon but I blame my associate for the briefing she gave me when I walked in.

PN1041

MR GEE: That's all right.

PN1042

THE DEPUTY PRESIDENT: We'll get Mr Smith on the line. I assume that closes your evidence of your case?

PN1043

MR GEE: Yes, it does, your Honour.

PN1044

THE DEPUTY PRESIDENT: We'll get Mr Smith on the line and I might just adjourn for 10 minutes or so, so we can all take a comfort break.

SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [4.04 PM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [4.17 PM]

PN1045

THE DEPUTY PRESIDENT: Yes, Mr Dwyer.

PN1046

MR DWYER: Yes, your Honour, I call Mr Brian Smith.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 1047-1288

PN1288

THE DEPUTY PRESIDENT: Mr Dwyer, call your next witness.

PN1289

MR DWYER: Yes, sir. Yes, I call Mr Harpley.

<DANIEL WILLIAM DOUGLAS HARPLEY, SWORN牋牋牋牋牋牋牋牋� [5.38 PM]

EXAMINATION-IN-CHIEF BY MR DWYER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [5.38 PM]

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XN MR DWYER

PN1290

MR DWYER: Thank you, Mr Harpley, you prepared a statement for these proceedings?‑‑‑That is correct.

PN1291

Can I show you a copy? Do you have a copy in front of you?‑‑‑Yes. I don't have a copy in front of me but there is one - - -

PN1292

I'll show you a copy. I'll show you statement dated 6 September 2015?‑‑‑Correct.

PN1293

Mr Harpley, there's a typo in paragraph three, at the end of the first line, it said that there had been three votes "prior tp" - it should be "prior to"?‑‑‑Mm'hm.

PN1294

Is that correct? With that correction?

PN1295

THE DEPUTY PRESIDENT: Sorry, which paragraph, Mr Dwyer?

PN1296

MR DWYER: Paragraph three, first line?‑‑‑Correct.

PN1297

With that correction that's a true statement by you?‑‑‑That's correct.

PN1298

Yes. I tender that, your Honour.

PN1299

THE DEPUTY PRESIDENT: Any objection Mr Gee?

PN1300

MR GEE: No, your Honour.

PN1301

THE DEPUTY PRESIDENT: I'll mark the witness statement of Daniel Harpley dated 6 September 2015 comprising 31 paragraphs as Exhibit 14. Mr Dwyer?

EXHIBIT #14 STATEMENT OF DANIEL WILLIAM DOUGLAS HARPLEY DATED 06/09/2015

PN1302

MR DWYER: Yes, I have no questions.

PN1303

THE DEPUTY PRESIDENT: Mr Gee?

CROSS-EXAMINATION BY MR GEE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [5.40 PM]

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MR GEE

PN1304

MR GEE: Mr Harpley, you came into the enterprise agreement process partly through the discussions?‑‑‑That's correct.

PN1305

Yes. While you were notified in November of 2014 that the process would commence you received notification of all other employees that a bargaining process - - - ?‑‑‑That's correct by email.

PN1306

Thank you. But that you, as you say, replaced Rob O'Brian as an employee representative in the bargaining process?‑‑‑That is correct.

PN1307

I suggest to you that at no time were you formally appointed as a bargaining representative and what I mean by that is there is particular process under the Fair Work Act whereby an employee appoints a person to act as his or her bargaining representative and a particular form was completed. That wasn't completed and no employee formally appointed you as a bargaining representative in that way. Is that correct?‑‑‑That is incorrect. I was actually asked by the employees at that time to actually stand up and replace Rob O'Brien.

PN1308

Yes. I accept that. But that process that's set out in the Fair Work Act whereby there's a form that's completed by an employee to formally nominate you as a bargaining representative?‑‑‑Mm'hm.

PN1309

That form process didn't occur, did it?‑‑‑You would be talking about the declaration. No, at that time - no - none of the employees at that time would - that's delegates had one of those.

PN1310

We just better clarify that. I want to make sure we're talking about the right thing. At the commencement of a bargaining process there's an obligation under the Fair Work Act for an employee to give what's called a notice of employee representation rights?‑‑‑Correct.

PN1311

To all employees?‑‑‑Correct.

PN1312

And so far as you - you received one of those in about November of 2014?‑‑‑That is incorrect.

PN1313

Well, you've given a written statement in these proceedings?‑‑‑That's correct.

PN1314

Yes. And you don't say that?‑‑‑Yes, I do actually.

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MR GEE

PN1315

Well, can you tell me where in your statement that you say?‑‑‑All right. If you go to - okay - involvement as a delegate on the 10th. I informed Mr Andrew Fenech that I would be approached - had been approached - by members of the employment to take up the representation of Rob O'Brien in the new agreement.

PN1316

Yes, I think we're talking about different - I apologise - I'm not making myself clear. There's two processes here that I'm referring to under the Fair Work Act. There's a process which occurs at the commencement of the bargaining period when bargaining starts. The Act says the employer has an obligation to give all employees a particular form and that form - - - ?‑‑‑Yes, that's correct. Yes, I know of that form.

PN1317

Yes. And - - - ?‑‑‑And that was not issued to me.

PN1318

Well - - - ?‑‑‑As an employee in the first meeting which you're saying I was never attendance.

PN1319

Do you recall - have you been shown the statement - the written statement of Mr Andrew Fenech?‑‑‑The written statement of Andrew Fenech?

PN1320

Yes?‑‑‑Yes.

PN1321

I should say that he's given a number. There's a statement of Andrew Fenech dated the 12 June and in that statement Fenech says that a tool box meeting held on Monday 24 November 2014 he assisted in physically handing out the notice of representational rights to all employees at the meeting. "I recall Daniel Harpley was present at this meeting as he asked me questions in that meeting about the proposed wage increase and other terms for the new enterprise agreement."?‑‑‑Well, I would say that is incorrect because at that time I was in Melbourne under work deployment.

PN1322

Have you seen that written statement that I have just - - - ?‑‑‑I have indeed.

PN1323

Yes. And you saw that before you prepared your own?‑‑‑That's correct.

PN1324

Your statement? And you don't say anything in your witness statement to contradict that, do you?‑‑‑Well, no. I didn't.

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MR GEE

PN1325

And I put it to you that at the commencement of the bargaining period in November of 2014 you were issued with a one-page document called a Notice of Employee Representational Rights?‑‑‑No. How could I be issued that bit of paper if I was in non-attendance to the meeting?

PN1326

There is a second process in the Fair Work Act which deals with the appointment of persons who are given a special role under the Fair Work Act in negotiating an enterprise agreement. That role is called a bargaining representative?‑‑‑Correct.

PN1327

And in order for a person to be appointed by a bargaining representative an employee must complete a form nominating that other person as their bargaining representative. Are you aware of that process generally speaking?‑‑‑I was not, no.

PN1328

All right?‑‑‑Nor was I informed by Andrew Fenech at the time of involvement in the delegate process when I informed him that I was taking over that procedure, or that role nor did he actually mention that either.

PN1329

But, having described that process to you, no employee filled in that form nominating you as the bargaining representative?‑‑‑That's correct.

PN1330

Now, when you came in, well, you say on around 14 March 2015, you took on that role as an employee representative in the bargaining process?‑‑‑Correct.

PN1331

Your role as an employee representative was to represent the interests of the New South Wales employees in the bargaining process?‑‑‑That is correct.

PN1332

Yes. So you weren't looking after the interests of the one employee in Queensland, and you weren't responsible for looking after the interests of the three employees in Western Australia?‑‑‑That is correct.

PN1333

You give some evidence about the voting process that took place on Monday 23 March at Lisarow?‑‑‑Correct.

PN1334

And you say that � in paragraph 14, you say there was a meeting of staff at Lisarow at 6.30 to discuss the other employees from Queensland and WA. Would it be more accurate to say that the purpose of that meeting was to conduct the secret ballot process for the approval of the enterprise agreement?‑‑‑That is incorrect. I called the meeting on that morning. I informed the employees of it, and also the management new about it, to discuss how the EA had been � a second EA had been falsified. And we were voting on the wrong one.

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MR GEE

PN1335

THE DEPUTY PRESIDENT: Sorry, which paragraph were you referring to, Mr Gee?

PN1336

MR GEE: I was referring to paragraph 14 of Mr Harpley's statement.

PN1337

THE DEPUTY PRESIDENT: Okay.

PN1338

THE WITNESS: That's correct. Yes. Fourteen is correct.

PN1339

MR GEE: So my understanding that the purpose of that meeting on the Monday morning was to conduct a secret ballot process to see whether employees were going to approve the new agreement; is that not ‑ ‑ ‑?‑‑‑Incorrect. There wasn't a secret ballot at all. It was an information session prior to the voting.

PN1340

You say, at paragraph 16:

PN1341

Not all staff were present. It was decided by the delegates along with Greg Egan and Andrew Fenech to exclude staff who were not present.

PN1342

?‑‑‑That is correct.

PN1343

I'd suggest to you that there was no discussion or decision with Mr Egan and Mr Fenech to exclude anyone from the voting process?‑‑‑I suggest to you that I was there that morning and yes, there was, because Peter Roff and myself and Jamie Dorren was present at the same time when it was mentioned, and this was at the end of the ballot.

PN1344

At paragraph 22 you give evidence about a Mr Richard Morgan?‑‑‑Yes, correct.

PN1345

You weren't present at the time he attended or voted or spoke to a manager, were you?‑‑‑Yes, I was.

PN1346

Well, you say in your statement he did not speak with me but spoke to one of the managers?‑‑‑That is correct. He had � he was advised by Greg Egan to actually have a talk to either myself or Mick O'Keeth, who was his project manager at that time. He was handed a copy prior, prior to actually talking to us to give 15 minutes, and then he was asked to vote. He never actually had any conversation with me at all.

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MR GEE

PN1347

Nothing further.

RE-EXAMINATION BY MR DWYER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [5.50 PM]

PN1348

MR DWYER: I just have one question. At paragraph 14, it said there was a meeting at 6.30?‑‑‑That is correct.

PN1349

Yes. There was a notice that the ballot would take place at 7?‑‑‑That is correct.

PN1350

7 o'clock that morning, but the meeting had 7 am to have the ballot, that did take place?‑‑‑It did.

PN1351

So the 6.30 meeting was the meeting prior to that?‑‑‑Prior to that, yes. Yes.

PN1352

Thank you. Nothing further.

PN1353

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Harpley, for your evidence. You're excused?‑‑‑Thank you, sir.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [5.51 PM]

PN1354

THE DEPUTY PRESIDENT: All right. Well, we need to finish the cross-examination of Mr Smith at some later point together with allowing for submissions.

PN1355

MR GEE: May I suggest this, your Honour: may I crave an indulgence to � I can seek instructions in relation to the invitation your Honour has given, and then have a discussion with Mr Dwyer, and advise which way we're going to go.

PN1356

THE DEPUTY PRESIDENT: Yes.

PN1357

MR GEE: And then we could propose a form of directions, I would have thought, in to your Associate by close of business this Friday. And should there be any dispute about that we'd simply seek a leave to really start it by telephone or at a 15 minute convenient time.

***牋牋牋� DANIEL WILLIAM DOUGLAS HARPLEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� RXN MR DWYER

PN1358

THE DEPUTY PRESIDENT: That's fine. And if you just notify my Associate of your intentions, and I assume you have a list of agreed directions, that you might also consult with Mr Smith about his availability.

PN1359

MR GEE: Thank you, your Honour.

PN1360

THE DEPUTY PRESIDENT: I thank the parties. We're adjourned.

ADJOURNED TO A DATE TO BE FIXED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [5.52 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATUTORY DECLARATION OF GREG EGAN DECLARED ON 23/04/2015................................................................................................................................. PN179

EXHIBIT #2 STATUTORY DECLARATION OF MR GORDON RICHTER DECLARED ON 28/04/2015............................................................................................................... PN182

EXHIBIT #3 EMAIL FROM MR KUDRAY TO OTHER PERSONS DATED 11/03/2015� PN223

EXHIBIT #4 EMAIL FROM MR FENECH TO VARIOUS PARTIES WITH DOCUMENTS ATTACHED DATED 13/03/2015........................................................................ PN224

EXHIBIT #5 EMAIL FROM MR KUDRAY TO VARIOUS PERSON WITH DOCUMENTS ATTACHED DATED 16/03/2015........................................................................ PN225

ANDREW JOHN FENECH, AFFIRMED......................................................... PN260

EXAMINATION-IN-CHIEF BY MR GEE....................................................... PN260

EXHIBIT #6 STATEMENT OF ANDREW FENECH WITH ATTACHMENTS DATED 12/06/2015............................................................................................................... PN267

EXHIBIT #7 FURTHER STATEMENT OF ANDREW FENECH WITH ONE ATTACHMENT................................................................................................................................. PN283

CROSS-EXAMINATION BY MR DWYER..................................................... PN426

THE WITNESS WITHDREW............................................................................ PN614

ANDREW JOHN FENECH, RECALLED ON FORMER AFFIRMATION PN624

CROSS-EXAMINATION BY MR DWYER, CONTINUING........................ PN624

THE WITNESS WITHDREW............................................................................ PN823

ANDREW JOHN FENECH, RECALLED ON FORMER AFFIRMATION PN853

CROSS-EXAMINATION BY MR DWYER, CONTINUING........................ PN857

RE-EXAMINATION BY MR GEE.................................................................. PN1017

THE WITNESS WITHDREW.......................................................................... PN1033

DANIEL WILLIAM DOUGLAS HARPLEY, SWORN................................ PN1289

EXAMINATION-IN-CHIEF BY MR DWYER.............................................. PN1289

EXHIBIT #14 STATEMENT OF DANIEL WILLIAM DOUGLAS HARPLEY DATED 06/09/2015............................................................................................................. PN1301

CROSS-EXAMINATION BY MR GEE.......................................................... PN1303

RE-EXAMINATION BY MR DWYER........................................................... PN1347

THE WITNESS WITHDREW.......................................................................... PN1353

Fair Work Commission Transcripts

AG2015/2356, Transcript of Proceedings [2015] FWCTrans 605 (27 October 2015)