AG2015/2356, Transcript of Proceedings [2015] FWCTrans 657 (17 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052682

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DEPUTY PRESIDENT GOSTENCNIK

AG2015/2356

s.185 - Application for approval of a single-enterprise agreement

Application by Mirait Technologies Australia Pty Ltd

(AG2015/2356)

Mirait Technologies Australia (MTA) Enterprise Agreement 2015 2019

Sydney

9.33 AM, FRIDAY, 6 NOVEMBER 2015

Continued from 14/10/2015

PN1361

THE DEPUTY PRESIDENT: Yes, good morning. Mr Dwyer, yesterday my Chambers received a notice from the CEPU indicating that it wished to be bound by the agreement.

PN1362

MR DWYER: Yes.

PN1363

THE DEPUTY PRESIDENT: Was the CEPU a bargaining representative at any time?

PN1364

MR DWYER: It would deemed to be a bargaining - but no, not appointed as a bargaining representative.

PN1365

THE DEPUTY PRESIDENT: Were there any members of the union at the time?

PN1366

MR DWYER: There was a member, at least one member at the time. Yes, your Honour.

PN1367

THE DEPUTY PRESIDENT: Mr Gee?

PN1368

MR GEE: I think I concur with Mr Dwyer. I'd say there were no - the union did not formally appear in the negotiations as a bargaining representative. We wouldn't challenge the assertion that they have at least one member at the time.

PN1369

THE DEPUTY PRESIDENT: All right, that's fine. All right, are we ready for final submissions? Yes Mr Gee?

PN1370

MR GEE: Deputy President, hopefully I think the final submissions can be relatively short. Does your Honour have a copy of our outline of final submissions?

PN1371

THE DEPUTY PRESIDENT: I do, yes.

PN1372

MR GEE: Thank you. I won't take you to those. I'll regard them as read unless your Honour has any questions about any matters raised in them. I've said I'll confine my submissions to a reply.

PN1373

THE DEPUTY PRESIDENT: Yes.

PN1374

MR GEE: To the outline of submissions from the intervenor in this matter. The first matter raised by the intervenor is an exhibit being a document that appeared in the appeal book, which is a copy - the document is identified. For the record I agree that the tender of the document is not opposed by the applicant, however I would submit that the document is of no relevance whatsoever in the application before the Commission.

PN1375

It is now the unchallenged evidence of Mr Fenech that that document was never put to any employee. The cross‑examination of Mr Fenech in relation to that document relied on evidence that has since been withdrawn and struck from transcript, and in my respectful submission the Commission ought have no regard whatsoever to any cross‑examination of Mr Fenech that relied on evidence that has since been withdrawn and struck from the transcript.

PN1376

So while the evidence is that there was a discussion between management representatives about the document that the union now seeks to rely on, there is no evidence that the document was ever distributed to any employees who participated in the vote. I will say something more about that later. The first objection which is taken by the intervenor in their submissions deals with the notice of employee representational rights. Their complaint boils down to the fact that the notice of representational rights that was distributed by the applicant was according to the intervenor incomplete.

PN1377

THE DEPUTY PRESIDENT: Because it failed to have the Infoline number?

PN1378

MR GEE: I'm sorry, your Honour?

PN1379

THE DEPUTY PRESIDENT: Because it failed to have the information line number inserted?

PN1380

MR GEE: Yes.

PN1381

THE DEPUTY PRESIDENT: Yes, well I'd defy most people to try and find the correct number on our website.

PN1382

MR GEE: I will no longer make any submissions about how long it took me to do so on the Commission's website. But suffice to say the form that was distributed is identical to the form contained at schedule 1 in the regulations, and which is prescribed in reg. 2.05 of the Act - of the regulations, I'm sorry. Contrary to the intervenor's submissions the applicant distributed the document that was strictly called for by the Act and there is nothing in the regulations that suggests that it is incumbent upon the applicant to insert the number, contrary to the intervenor's submission at paragraph 13 of their outline.

PN1383

At paragraph 14 there's a submission made about the apparent understanding of field staff. I'd simply say there's no evidence before the Commission one way or the other in relation to that matter and the submission ought be disregarded. The intervenor's complaint in relation to that matter must simply be regarded as a vain attempt to introduce a technical objection at this late stage. The next matter raised by the intervenor starting from paragraph 15 of their submissions deals with the more substantive of their complaints, dealing with the matters referred to in section 180.

PN1384

With respect, the intervenor in that paragraph, in paragraph 15, has incorrectly described the test. At paragraph 16 the intervenor inserts or refers to the actual wording of the statute, and that is the test. The Act requires, and the role of the Commission is to be satisfied or not satisfied as to whether or not the employer has taken all reasonable steps to achieve the matters set out in section 180. I have dealt with that in our outline of final submissions and further in the earlier submissions filed in the matter as to the steps taken.

PN1385

So when one looks at the balance of the complaints made by the intervenor in relation to the matters in section 180 one must have in mind that the test is all reasonable steps, not a stricter test as is hoped by the intervenor. Starting from paragraph 17 the intervenor describes a complaint in relation to an employee in Queensland. The evidence of the applicant in relation to that matter is at paragraph or starts at paragraph 409 of transcript. That evidence was not challenged.

PN1386

I would respectfully submit that the steps taken by the employer, being a small to medium employer with minimal resources, to distribute the document and instructions to the State manager to do certain things and impart certain information in the circumstances amounts to reasonable steps. We say that the evidence to be referred to and accepted by the Commission is that evidence by Mr Fenech at paragraph 409 and following, not the evidence that's referred to in paragraph 90 which I believe the excerpt from transcript in paragraph 19 is an excerpt from the transcript, but the paragraph reference is incorrect.

PN1387

THE DEPUTY PRESIDENT: Yes, and that has happened on a few occasions in their submissions.

PN1388

MR GEE: I don't say any more than that, but in my submission that's not the evidence that should be accepted by the Commission in any event as to the steps taken by the employer to discharge its obligation under section 180. Contrary to paragraph 24 of the intervenor's submissions there is positive evidence before the Commission from the applicant about the steps taken by the applicant to distribute the agreement and have a State manager inform the employee in Queensland about the time and place of the vote and an explanation of the enterprise agreement, and that is - - -

PN1389

THE DEPUTY PRESIDENT: Sorry to interrupt. I had understood that the submissions at 17 through 19 concerned the distribution of the notice of employee representational rights.

PN1390

MR GEE: Yes.

PN1391

THE DEPUTY PRESIDENT: The evidence given by Mr Fenech at 409 concerns the distribution of the enterprise agreement.

PN1392

MR GEE: Yes.

PN1393

THE DEPUTY PRESIDENT: Not the notice of employee representational rights.

PN1394

MR GEE: Yes, I accept that.

PN1395

THE DEPUTY PRESIDENT: Yes.

PN1396

MR GEE: The issue of the - - -

PN1397

THE DEPUTY PRESIDENT: I think the point that - the evidence at 19 is suggestive that an employee in Queensland didn't receive a notice of employee representational rights at the time it was distributed because he wasn't employed.

PN1398

MR GEE: Correct, and I think that's the answer to the complaint.

PN1399

THE DEPUTY PRESIDENT: And if that's the case then that's certainly not fatal.

PN1400

MR GEE: Yes, but the evidence is the answer to the complaint when one turns to 173(1)(b) because the obligation is to distribute to employees who are employed at the notification time.

PN1401

THE DEPUTY PRESIDENT: At the time, that's right.

PN1402

MR GEE: Yes.

PN1403

THE DEPUTY PRESIDENT: Yes.

PN1404

MR GEE: It's not a complaint that stands.

PN1405

THE DEPUTY PRESIDENT: Yes.

PN1406

MR GEE: But the balance of the complaint in relation to the employee in Queensland goes to the steps taken. The complaint is crystallised in paragraph 24 and we say the evidence of Mr Fenech at paragraph 409 and following adequately demonstrates that the employer took reasonable steps at the time in relation to that employee. That evidence was not challenged in cross‑examination and Mr Harpley's evidence is confined to New South Wales. Now the next complaint by the intervenor relates to the process in New South Wales and starts at paragraph 25.

PN1407

Now I must pause and make an observation about Mr Harpley's evidence. The intervenor has had the opportunity and the ability to introduce evidence from Mr Harpley at a minimum of four months and probably longer. Mr Harpley gave a statement which was dated 5 June and it was included in the appeal book, which said nothing about these issues. These allegations about improprieties in the New South Wales vote did not arise until after the applicant had put on its evidence, not at the appeal but in relation to the re‑hearing of the application.

PN1408

A kind way of putting the evidence is it is evidence by surprise. It smacks of evidence that Mr Harpley has contrived to assist the union in its objections rather than evidence of a genuine complaint. Because if it had been a genuine complaint it would have appeared at a much earlier stage in the proceedings and certainly been included in the appeal proceedings. The matters were put to Mr Fenech while Mr Fenech was in the witness stand. I believe I've put the reference in our outline of final submissions where it was - Mr Fenech's evidence at paragraph 987 of the transcript is that he absolutely denies Mr Harpley's evidence at paragraph 16 of his statement.

PN1409

Mr Harpley alleged that there was a decision at the time to the vote to exclude staff who were not present. That was denied by Mr Fenech. Mr Fenech could not recall the allegation or the people described by Mr Harpley who had been reassigned from clerical to field roles for the purposes of the vote. He couldn't put it any higher as he had no recollection of the matters. But if the Commission accepts my submissions about the calibre of Mr Harpley's evidence then it ought have no weight on the outcome, and the allegations about the impropriety of the vote in New South Wales should simply be put to one side.

PN1410

The intervenor then turns to the process in WA and sets out an incomplete chronology. At paragraph 29 the intervenor asserts that the employees in Western Australia did not have access for seven days. But as soon as one turns to exhibit 5 in the proceedings it is immediately apparent that that objection falls away. Exhibit 5 was the email from Adam Kudray to the three employees in WA on Monday 16 March.

PN1411

MR DWYER: Yes, your Honour. Look, I withdraw that point there. The vote was originally set for the 23rd and it would appear at least it might have taken place on the 24th or 25th. It's not a submission I - - -

PN1412

THE DEPUTY PRESIDENT: Well, just on that point. The access period is the period that ends or is the seven day period ending immediately before the start of the voting process. The voting process is that which is described in section 181(1) and 181(1) says that, "An employer who is covered" et cetera "may request employees" et cetera "to approve the agreement". Now the employees were asked to approve the agreement commencing on 23 March. I know some employees voted on the 24th or 25th but the voting process started on the 23rd and so the seven day period ended immediately preceding that.

PN1413

MR DWYER: Yes.

PN1414

THE DEPUTY PRESIDENT: The 16th is still fine on those numbers, is it not?

PN1415

MR DWYER: Yes, the complication of course is that New South Wales - yes, it was not a full seven days. Sorry.

PN1416

THE DEPUTY PRESIDENT: What's your point about the seven days?

PN1417

MR DWYER: Under some - - -

PN1418

THE DEPUTY PRESIDENT: On one view if you look at the requirements of access is that in subsection (4) of section 180 - sorry, subsection (2) of section 180 there are one of two ways of satisfying that section. If I go to subsection (b) first it is that:

PN1419

The relevant employees have access throughout the access period.

PN1420

That's for the whole of the seven days.

PN1421

MR DWYER: Yes.

PN1422

THE DEPUTY PRESIDENT: "A copy of the agreement".

PN1423

MR DWYER: Yes.

PN1424

THE DEPUTY PRESIDENT: The second way of satisfying that section on one reading is that during the access period employees who are covered by the agreement are given a copy of. Now on one view that's at any time during the seven day period if they're given a copy.

PN1425

MR DWYER: Yes.

PN1426

THE DEPUTY PRESIDENT: Or alternatively throughout the access period they have access to it. That is, it's available on the internet or they were given a copy earlier in time.

PN1427

MR DWYER: Yes.

PN1428

THE DEPUTY PRESIDENT: I have to say I don't read the requirement strictly as one that they must have in all circumstances access to the agreement for the whole of the seven days if in fact during the seven days they're given a copy because it's "or".

PN1429

MR DWYER: It does seem to contradict. I certainly - as I've set that out in my submission there tended to rely on (b), subsection (b), that it would seem - - -

PN1430

THE DEPUTY PRESIDENT: Yes, but it can be satisfied by doing either.

PN1431

MR DWYER: Yes, the "or" in there.

PN1432

THE DEPUTY PRESIDENT: Yes.

PN1433

MR DWYER: But it does - yes it raises a question - - .

PN1434

THE DEPUTY PRESIDENT: I mean it's a peculiar result because on that view on the last day the employees could be given a copy of the agreement.

PN1435

MR DWYER: Yes.

PN1436

THE DEPUTY PRESIDENT: And that section would be satisfied.

PN1437

MR DWYER: It would seem that way.

PN1438

THE DEPUTY PRESIDENT: Yes.

PN1439

MR DWYER: If we went back to an interpretation of that but if we suggest some ambiguity was present we'd need to look further. I'd suggest the better view would be that membership have seven days.

PN1440

THE DEPUTY PRESIDENT: But then the two provisions don't seem to have any work to do.

PN1441

MR DWYER: Yes.

PN1442

THE DEPUTY PRESIDENT: And Parliament should be presumed to have intended that both sections have work to do.

PN1443

MR DWYER: I understand that point.

PN1444

THE DEPUTY PRESIDENT: Yes.

PN1445

MR DWYER: But notwithstanding - - -

PN1446

THE DEPUTY PRESIDENT: In any event if the voting process commenced on the 23rd, the period ended on the 22nd

PN1447

MR DWYER: Yes.

PN1448

THE DEPUTY PRESIDENT: The 22nd, 21st, 20th, 19th, 18th, 17th, 16th.

PN1449

MR DWYER: Yes, it's not - - -

PN1450

THE DEPUTY PRESIDENT: The 16th is the first day.

PN1451

MR DWYER: Yes.

PN1452

THE DEPUTY PRESIDENT: Of the access period. If they're given a copy on that day arguably they've had it throughout the access period.

PN1453

MR DWYER: Yes.

PN1454

THE DEPUTY PRESIDENT: And been given a copy during the access period, so I'm not sure that there's any particular issue.

PN1455

MR DWYER: Yes, so what was your last - - -

PN1456

THE DEPUTY PRESIDENT: I'm not sure that there's any particular issue because on that view - - -

PN1457

MR DWYER: Yes.

PN1458

THE DEPUTY PRESIDENT: - - - they had a copy of the agreement throughout the access period and were given a copy during the access period.

PN1459

MR DWYER: Yes, it has troubled me making that submission but if it's - yes, but we don't have any - the only evidence before us is that the voting would commence on the 23rd.

PN1460

THE DEPUTY PRESIDENT: Yes.

PN1461

MR DWYER: The voting process.

PN1462

THE DEPUTY PRESIDENT: Yes.

PN1463

MR DWYER: And that would apply to WA at 7 am on the 23rd.

PN1464

THE DEPUTY PRESIDENT: It doesn't matter in that sense because in some cases a voting process might be for 12, 15 days.

PN1465

MR DWYER: Yes.

PN1466

THE DEPUTY PRESIDENT: In large employer organisations where they have multiple shift work, multiple sites.

PN1467

MR DWYER: Yes.

PN1468

THE DEPUTY PRESIDENT: But the voting process begins when it begins. The fact that somebody doesn't vote till a later stage is by the by. So it begins on the first day, therefore the access period ends immediately prior to that day.

PN1469

MR DWYER: Yes. Well, if the notice - - -

PN1470

THE DEPUTY PRESIDENT: On your analysis if the voting process for the WA employees commenced at some later point then it's even more difficult for you to make out your point about the agreement not being available to the employees because clearly it was.

PN1471

MR DWYER: Yes, I won't take that further.

PN1472

MR GEE: Your Honour, you can take it those were my submissions in effect on the effect of the Act. I think I heard my friend say he was going to abandon that particular objection in paragraphs 28 and 29 so I will move on save for one comment. This is not an issue in fact that arises in this particular application but in the circumstances which your Honour was positing what would happen in the event that a copy of the written text of the agreement was provided the day of or the day before the vote.

PN1473

THE DEPUTY PRESIDENT: Yes.

PN1474

MR GEE: That might be a situation where the Commission would look at section 188 - - -

PN1475

THE DEPUTY PRESIDENT: (c), yes, I understand.

PN1476

MR GEE: (c), yes.

PN1477

THE DEPUTY PRESIDENT: Yes.

PN1478

MR GEE: But it's not an issue that arises here.

PN1479

THE DEPUTY PRESIDENT: No, and that would depend upon what explanations were given to employees beforehand.

PN1480

MR GEE: Yes. Yes, your Honour. Yes. Sorry, I'm going to backtrack just a little because I had left a reference out when I was making a submission about the intervenor's objections about the process in New South Wales. Of course Mr Fenech gave evidence‑in‑chief that he positively denied paragraph 16 of Mr Harpley's statement. He called it a false statement, and that was an objection that was maintained under cross‑examination, and that was the reference. So the evidence‑in‑chief was at paragraph 399. When the point was put to him in cross‑examination, that's the evidence at paragraph 987.

PN1481

Now if I could turn the page, the intervenor's submissions at paragraphs 30 follow the same point we've just been discussing, and then from 31 the intervenor raises some concerns about the enterprise agreement and the vote process. In my opening on the last occasion, your Honour, I did outline a matter that would require the Commission's careful consideration and this is where we hit it. Because Mr Kudray was and remains unable to give evidence in this matter the best evidence before the Commission is that Mr Fenech provided documents to Mr Kudray with the expectation that Adam Kudray would then distribute the documents to the three employees in WA and then meet with them and confer with them about both the time and place of the vote and an explanation of the agreement, and your Honour has previously been taken to those documentary records at exhibits 3, 4 and 5.

PN1482

If your Honour looks at the language used by Mr Kudray in exhibit 3 he clearly says in that email he's going to schedule a face to face meeting with the three WA employees in the coming week. At exhibit 5, which is on the following Monday, his email to the three employees says exactly the same thing:

PN1483

As committed, we will have a face to face meeting this week to go through it in detail.

PN1484

And then we have the unchallenged evidence that the three WA employees were at the telephone conference on 24 March. So one can reasonably infer from that evidence that the meeting which was foreshadowed by Mr Kudray must have taken place otherwise those employees would not and could not have known about the meeting or the telephone conference on the 24th and the intended purpose of that conference. The best evidence before the Commission is that Mr Kudray did what Mr Fenech expected him to do in distributing the document, meeting with the employees face to face, and to discharge the requirements under the Act, and quite frankly there is no evidence to contradict that reasonable inference.

PN1485

THE DEPUTY PRESIDENT: Yes, can I raise a matter that troubles me on the evidence and that is let's assume for a moment that I accept that Mr Kudray at some point in time sufficient to be by the start of the access period communicated to the three Western Australian employees about the vote, and let's assume I accept that Mr Kudray was told to do that by Mr Fenech and that Mr Fenech's expectation was that that would be done.

PN1486

The state of the evidence in relation to what might have been communicated seems to be this. Firstly if you look at exhibit 4 that, apart from attaching the draft agreement, tells the recipients that they should be aware that there will be a vote which will be conducted at 7 am on 23 March. That document does not specify the place or the method. So that's the first point.

PN1487

MR GEE: Yes.

PN1488

THE DEPUTY PRESIDENT: Now if one then goes to Mr Fenech's further statement at exhibit 7 and in particular paragraph 9 where he refers to the 13 March email and then he says that he spoke to various supervisors in New South Wales and asked them to pass on the email to their teams and explained there would be another vote using the same process as before. Now it's also in evidence that the WA employees didn't vote in any process before for the reasons explained by Mr Fenech, and what he says in relation to the WA employees is in the last sentence of paragraph 9. He says:

PN1489

I asked Mr Kudray to hand out the ballot papers to the team and explain to the team that they would be asked to vote on the 24th.

PN1490

Okay? Now that doesn't tell me that Mr Kudray was asked to explain to the employees the place at which the vote would occur or the method to be used, and I would have to accept that Mr Kudray had the conversation in time to be by the start of the access period. Now if one then looks at the evidence given by Mr Fenech during his oral evidence, beginning firstly at PN322 through to 324, it's apparent from that exchange that there was a meeting on the 24th and whilst the employees gave an indication that they would look favourably on the agreement they weren't actually asked to cast a vote, and so the vote it would appear occurred on the 25th. That's what he suggests at PN324. That seems consistent with exhibit 11 which is an email from Mr Kudray which he attaches the ballot papers, and that was sent in the afternoon of 25 March and he says:

PN1491

Hi Andrew, I've just done a round trip and the riggers have ticked the boxes as per attached.

PN1492

So even assuming that Mr Kudray communicated the method and the time of vote - sorry, the method and the place of vote, the time of vote that he communicated was the 24th.

PN1493

MR GEE: Yes.

PN1494

THE DEPUTY PRESIDENT: Because they were Fenech's instructions.

PN1495

MR GEE: Yes.

PN1496

THE DEPUTY PRESIDENT: But the vote didn't occur on the 24th, it occurred on the 25th and so it seems to be the position the employees were given incorrect information about when the vote would take place and therefore were not given information about the time at which the vote would take place before the start of the access period. So that kind of creates a difficulty about whether I can be satisfied that the employer took reasonable steps because it seems on the evidence of Mr Fenech that during the voting process it was intended that they would vote on the 24th.

PN1497

MR GEE: Yes.

PN1498

THE DEPUTY PRESIDENT: But for some reason they were given an extra day.

PN1499

MR GEE: Yes.

PN1500

THE DEPUTY PRESIDENT: And Mr Fenech explains that by suggesting that he didn't want to pressure the employees, by suggesting that he didn't want to place pressure on the employees. That seems to be his evidence.

PN1501

MR GEE: Yes.

PN1502

THE DEPUTY PRESIDENT: And so it leaves me in the difficulty in being satisfied on the material firstly as to method. There doesn't seem to be any evidence that the method of voting was explained to them, and to the extent that the conversations to the New South Wales supervisors was that the voting method would be the same as the last time, that doesn't appear to assist the WA employees because on Mr Fenech's evidence those employees didn't participate in a vote last time.

PN1503

MR GEE: Yes.

PN1504

THE DEPUTY PRESIDENT: So they were on one view unaware of the voting method and there doesn't seem to be any evidence which would suggest the method was explained. It's not in the email and it's not in the extract at paragraph 9 of exhibit 7 where Mr Fenech communicates what he told Mr Kudray.

PN1505

MR GEE: Yes, although it is - I'm sorry, your Honour.

PN1506

THE DEPUTY PRESIDENT: That's all right.

PN1507

MR GEE: Mr Kudray's - I'm sorry, I beg your pardon, Mr Fenech's evidence, and I'll just deal with that last point first. Mr Fenech's evidence is that the first time he explained the voting process was on 24 November and he did so to employees in New South Wales and in a telephone call with the three WA employees. That's at paragraph 4 of his further statement. I don't recall that being challenged in cross‑examination at all. Now I accept that that was a description by Mr Fenech as to a future voting process by way of an anonymous onsite voting process. What then happened was that there was a first vote which didn't get as far as WA because of the result in New South Wales, a second vote with the same outcome, and so when one looks at Mr Fenech's evidence in paragraph 9 one must take into account what had already been explained in paragraph 4. It says:

PN1508

An expectation -

PN1509

In paragraph 9:

PN1510

- on Mr Kudray to hand up the ballot papers and explain that they would be asked to vote on 24 March 2015.

PN1511

But that is in circumstances where the employees had previously had an explanation put to them as to how the vote would occur. Your Honour is quite correct in - well, I agree with your Honour's description about it is incumbent upon the employer to take all reasonable steps to have notified those employees of the time and place and the voting method, and when one looks at the totality of the evidence - admittedly it is incomplete in the absence of Mr Kudray - the Commission can reasonably infer that all of that information was provided.

PN1512

Now what happened in fact was that even if the employees were given that information there was a decision taken in that conference call on the 24th to bind it over for another day, as your Honour has suggested Mr Fenech's motivation in doing so. There's actually nothing in the Act that prohibits that. The employee were given the information. They were all there to vote. They indicated what their intentions were and how they were intending to vote and Mr Fenech said "Well hang on, take another night to think about it".

PN1513

There is nothing in the Act to suggest that that extension of time renders the process contrary to the Act. True it is that there's nothing in the Act that explicitly endorses that approach, but the obligation is to give the employees that information. There's nothing in the Act that says that if a voting process is conducted in the slightest way contrary to what information is provided an agreement cannot be approved.

PN1514

THE DEPUTY PRESIDENT: Yes, I understand your point.

PN1515

MR GEE: I mean it's a trite statement, but had the vote been taken in that meeting it would have met what the previous evidence would suggest as to the time and place and method of the vote but a different type of allegation might have been made by the intervenor. The intervenor then - I think that is about all I can say on the complaint that your Honour or the complaint of the intervenor at paragraph 32 and what your Honour has raised as a concern.

PN1516

THE DEPUTY PRESIDENT: Yes. Thank you.

PN1517

MR GEE: At paragraph 33 and following, the intervenor goes to a concern about the form of the enterprise agreement that was given. They've referred to a document they would like tendered as exhibit 15. I have made submissions on that point. I won't repeat it. Suffice to say that the evidence of Mr Fenech was that it was abundantly clear to everybody in the teleconference on the 24th that they were talking about the correct enterprise agreement and not the amended version.

PN1518

The intervenor makes a separate complaint in relation to the undertakings but as a matter of pure logic that undertaking simply would not have needed to come about if they were looking at the wrong version of the enterprise agreement. So they cannot have been - I withdraw that. The three employees in WA could not have been misapprehended as to the form of the enterprise agreement before them, otherwise there would have been no discussion in that meeting about what eventuated in the document previously referred to as the undertaking.

PN1519

It's simply a matter of logic that dispels the intervenor's concern there. We then turn to the intervenor's complaint in relation to the undertaking and I concur with the intervenor's submission at paragraph 47. The Full Bench has ruled on the issue of an undertaking. It could not be an undertaking for the purposes of section 190 of the Act. However the allegation that the WA staff were misled is simply untrue. They could not have been misled as to the terms of the enterprise agreement they were asked to vote on.

PN1520

THE DEPUTY PRESIDENT: No, but the issue is, is it not, that they were told that there would be an undertaking. The undertaking they were told was the legal way of resolving their concerns.

PN1521

MR GEE: Yes.

PN1522

THE DEPUTY PRESIDENT: About where they fitted in the classification structure.

PN1523

MR GEE: Yes.

PN1524

THE DEPUTY PRESIDENT: It's clear on the face of the undertaking proffered that the classification which was sought by the employees or the additional words don't presently appear in the agreement and the employees thereafter were satisfied and voted for the agreement. It might be said but for the undertaking proffered they would not have supported the agreement.

PN1525

MR GEE: Well, that submission could be made. The contrary submission could equally be made. There's no evidence one way or the other, your Honour. The difficulty is that neither party has access to the evidence of the three employees. I must say this is a very unique factual circumstance.

PN1526

THE DEPUTY PRESIDENT: Yes, I understand they're no longer in the country and - well, they may or may not be but they're not - and the WA part of the business is no longer operating.

PN1527

MR GEE: Yes, your Honour.

PN1528

THE DEPUTY PRESIDENT: Yes, I understand that.

PN1529

MR GEE: It is also - it can be taken on notice that the undertaking was honoured by the applicant in that it did exactly what it said it would do. So while the form of the undertaking wasn't capable of being accepted under the Act the - - -

PN1530

THE DEPUTY PRESIDENT: I'm not suggesting - well, I won't speak for Mr Dwyer but certainly for my concern I'm not suggesting that your client took any step to deliberately mislead the employees. Okay?

PN1531

MR GEE: And I don't understand Mr Dwyer to be making that point either.

PN1532

THE DEPUTY PRESIDENT: The issue is I mean for example at 337 Mr Fenech - at transcript 337 he said - and this is I think in examination‑in‑chief.

PN1533

MR GEE: Yes.

PN1534

THE DEPUTY PRESIDENT: At 336 you ask him:

PN1535

Did the issue of different classifications come up?

PN1536

And Mr Fenech says:

PN1537

Yes it did.

PN1538

And how was it dealt with?

PN1539

He says:

PN1540

I explained in an enormous amount of detail that the appropriate and the best - the appropriate way to deal with it was through an undertaking which, as I said, I explained and we later put the undertakings in writing.

PN1541

So that on one view of it - and the legal effect of a properly given undertaking in response to a concern by the Commission is that it is enforceable, and so that on that view the employees would have thought that the classification position was something that would be enforceable.

PN1542

MR GEE: Yes. Yes.

PN1543

THE DEPUTY PRESIDENT: And thereafter they voted, and I think there are other exchanges at 344, 345 and 960 to 968 which are to the same effect. So that they were given information which was not deliberately so but not correct and the question then arises as to whether I can be satisfied that the employees genuinely agreed to the agreement.

PN1544

MR GEE: Yes I accept that, your Honour. Mr Fenech's evidence is what it is.

PN1545

THE DEPUTY PRESIDENT: Yes.

PN1546

MR GEE: Of course his evidence is as to his belief, not the actual effect at law. The applicant accepts that the undertaking is not one that could apply under section 190 but that doesn't mean the undertaking could not be enforced. That could have been done, had it come to that, a number of ways. There would be an issue estoppel point would prevent the applicant from denying the content of what was in the undertaking in whatever forum it was sought to be relied on, whether it was in - most likely a Court with jurisdiction under the Act but in whatever forum. Although the Full Bench has ruled on the effect of the undertaking document so far as section 190 is concerned, in my respectful submission it doesn't render the undertaking unenforceable as a matter of law. It's not a document that the - - -

PN1547

THE DEPUTY PRESIDENT: No, I accept that there might be other grounds.

PN1548

MR GEE: Yes.

PN1549

THE DEPUTY PRESIDENT: Or other bases upon which an aggrieved person might - - -

PN1550

MR GEE: Yes but - - -

PN1551

THE DEPUTY PRESIDENT: - - - seek to enforce that.

PN1552

MR GEE: Yes. Thank you. I'll take that no further. But the point remains, as your Honour has put it, about whether the employees genuinely approved the agreement and in the absence of evidence from those three employees what we have is the evidence of Mr Fenech where he was absolutely clear that everybody understood the form and content of the enterprise agreement that was being voted on. The conduct - no, I can't make that submission.

PN1553

There is no evidence to suggest that the employees would have voted in a contrary manner had that undertaking not been proffered, and there is no evidence to suggest that the three employees would have been treated any differently under the agreement absent the undertaking. The intervenor does not suggest that the three employees would have been treated any different under the agreement had that undertaking not been made. Just a moment, your Honour.

PN1554

THE DEPUTY PRESIDENT: In some circumstances it may not make any particular difference in the sense that if the vote in New South Wales was 43 - nil, for example.

PN1555

MR GEE: That's correct. In the circumstances of this matter where the vote in New South Wales was so close it would be legitimate for your Honour to look at 188(c). What I'm submitting is that the reliance on 190 did not change the effect of the undertaking in the minds of the employees because the reality is the undertaking was able to be relied on in one forum if not another, and in the absence of any evidence to suggest they would not have voted in favour of the agreement, that absent that undertaking the Commission ought conclude that they were not misled as to the - or that they failed to understand the content of the actual enterprise agreement that they were asked to vote on.

PN1556

THE DEPUTY PRESIDENT: Yes, I understand.

PN1557

MR GEE: Yes. Then the intervenor moves in paragraphs 54 and following to in effect recast its objections. I don't see that there are any new objections in that part of its final submission. There's an objection taken at paragraph 66 as to rule 40. It's an objection that's available but trite. The form at the time which has since been changed put the question in the past tense, when of course chronologically the applicant cannot possibly inform its employees that an application has been made until after the application has actually been made. The form quite properly has since been amended to reflect that reality. It's not an objection that should stand.

PN1558

THE DEPUTY PRESIDENT: No, I understand. I'm the one that caused the form to be amended.

PN1559

MR GEE: I believe I've addressed all of the objections taken by the intervenor. We otherwise rely on the material set forth in our outline. As your Honour pleases.

PN1560

THE DEPUTY PRESIDENT: Yes. Yes, thank you.

PN1561

Mr Dwyer?

PN1562

MR DWYER: Yes, thank you. I won't be here long either. Just perhaps three points. One, my friend made a comment there that some matters were not challenged in cross‑examination. It's quite clear from the approach you take is that it's a matter for the Commission to be satisfied. It's not for us to prove one way or the other, although what we put forward may assist you in coming to that conclusion. That's point 1. I've addressed that in my submissions. The second point, your Honour, I just want to correct a reference in our submissions at paragraph 40.

PN1563

THE DEPUTY PRESIDENT: Yes, that's to PN60.

PN1564

MR DWYER: Yes.

PN1565

THE DEPUTY PRESIDENT: Or 960, 961, 962.

PN1566

MR DWYER: 960 to 962, and just on that point we've just been discussing I actually wanted to take you to paragraph 962.

PN1567

THE DEPUTY PRESIDENT: Yes.

PN1568

MR DWYER: There is evidence the undertaking - - -

PN1569

THE DEPUTY PRESIDENT: Yes, I referred Mr Gee to that.

PN1570

MR DWYER: Yes. Yes, I think we've discussed that enough. I just want to indicate - - -

PN1571

THE DEPUTY PRESIDENT: But I don't mean this as a criticism, Mr Dwyer, but the transcript, the three paragraphs of the transcript are only part of the evidence that Mr Fenech gave and in fairness you finish at 962.

PN1572

MR DWYER: Yes.

PN1573

THE DEPUTY PRESIDENT: But at 963 he clarifies what he says at 962.

PN1574

MR DWYER: Yes, Mr Fenech's evidence I'd say was - I've extracted that part but in the earlier references you made, he has different views - - -

PN1575

THE DEPUTY PRESIDENT: No, I understand. I'm simply making the point that you've extracted three paragraphs which go your way and the fourth one which doesn't quite go your way is excluded.

PN1576

MR DWYER: I've referred to others in - - -

PN1577

THE DEPUTY PRESIDENT: It's just - - -

PN1578

MR DWYER: Not only on this point but on other points Mr Fenech was not clear, was not consistent in his evidence, and without going through it up above for example the point on see page 22 he laboured that matter. There's quite clearly an agreement which he conceded was prepared by him. I'm not suggesting it was circulated, but it was very difficult to get that concession from him that he actually did that and made amendments to the agreement, and he took a very technical point about whether the agreement was attached to the email or not. Now I don't press any of that but it was difficult trying to reconcile some of his points there.

PN1579

Look, I'd just like to perhaps finish on the point on Western Australia. We had three - Western Australia is critical. It was a tied vote. It was known a tied vote. Now I leave outside the two votes Mr Harpley talked about in New South Wales to quite clearly WA people were going to decide this matter. It didn't matter which way the other two voted in New South Wales. I've addressed the issues about who was present at the meeting and what I say is very clear evidence from Mr Harpley as to about late voting. Now Western Australia became critical. A lot of inferences can be drawn from the emails.

PN1580

We don't have the direct evidence but one clear inference and very well - and there is evidence there the WA people were concerned they weren't mentioned, to put it in a very broad term, in the EBA. They were concerned about their classification. Obviously it also could be inferred from the emails that a proposal was put up to change the EBA or to change the enterprise agreement. That was discussed. Ultimately there was a meeting on the 24th, a long meeting, and out of that it appears - because this was only hours after those emails, or a day at most, the emails discussing changing the enterprise agreement, that the undertaking issue came up.

PN1581

At that long meeting there were three employees, five managers. They were 457 people. It's well known that people on 457 visas are quite vulnerable people in the workforce, to put it in a general sense. The employer basically holds their deportation papers. If they lose their job they generally have to return to their country of origin. It was at PN323 they were indicated they were asked individually what they felt. They knew the result in New South Wales was a tie.

PN1582

MR GEE: No they didn't.

PN1583

MR DWYER: I've quoted "I've asked" - I think he says "I asked each of them" or "We asked each of them what their view was".

PN1584

THE DEPUTY PRESIDENT: But this is during the meeting on the 24th?

PN1585

MR DWYER: Yes.

PN1586

THE DEPUTY PRESIDENT: Where they were all present.

PN1587

MR DWYER: They were. Yes, it's 328:

PN1588

I said - towards the end of the meeting we spoke with each of the three Western Australian employees and they indicated that they were looking at the agreement favourably.

PN1589

I'm just making that point. The outcome obviously was not going to be confidential in Western Australia because it was known what the result was in New South Wales. It was declared the next morning. If you recall Mr Fenech sent out an email saying it was voted up. It was very early Western Australian time he made that declaration. Late that afternoon WA time and very late in New South Wales, Mr Kudray sends his emails with the voting forms attached where he said he had then just done the rounds, as it was. The circumstances about were they - the time and the place and the method of voting, on one view you could come to the conclusion or it could be inferred the vote was taken in that meeting, at the meeting.

PN1590

Quite clearly there was no paper vote done, not which either confirmed or it was the vote[sic]. But all I say to you is that the process there, the process all over has difficulties. We're not talking about one isolated incident. Wherever we look there has been difficulties with this and even before the matters that came back before the Full Bench. I don't think - just one moment. Yes, I'll end my submissions there, your Honour.

PN1591

THE DEPUTY PRESIDENT: Yes. Before you reply, Mr Gee, there was one matter that I did want to raise with you. I think we briefly discussed it on the last occasion and that's the question of clause 16 of the agreement, the policies, and I think you made a submission at the time that the matter had recently been considered by Marshall J in Yarra Trams.

PN1592

MR GEE: Yes.

PN1593

THE DEPUTY PRESIDENT: At paragraph 16 of his Honour's decision his Honour says:

PN1594

For a person to be in breach of or to contravene a provision of an enterprise agreement that person must have failed to perform some obligation which the provision imposes.

PN1595

And the provision at issue there was simply that particular matters would continue to be dealt with in accordance with the company's policy, a disciplinary and counselling policy, and the agreement itself didn't impose any obligation. Whereas clause 16 here appears in terms to be quite different in that employees as a term of the agreement "shall at all times abide by".

PN1596

MR GEE: Yes.

PN1597

THE DEPUTY PRESIDENT: That's the first issue and my second issue is what do I do with "as amended from time to time"?

PN1598

MR GEE: Your Honour the clause 16(a) can only be taken as an obligation to or as an obligation on employees party to the, or covered by, the agreement.

PN1599

THE DEPUTY PRESIDENT: Yes.

PN1600

MR GEE: To abide by those policies. The policies themselves don't form part of the agreement. A term of the policy which it may impose an obligation on an employee does not form a part of the agreement and could not be relied on by the employer, or the employee to that matter. What is in the agreement really is a clause that's commonly seen in employment contracts, which is a reflection of the duty to abide by lawful and reasonable instructions.

PN1601

THE DEPUTY PRESIDENT: Yes, and also common in employment contracts is what appears in the third line, that they don't form part of the employment contract.

PN1602

MR GEE: Yes, and I don't think the clause could be relied on for any other purpose and I don't know of the origin of the clause or what was discussed or negotiated.

PN1603

THE DEPUTY PRESIDENT: Yes.

PN1604

MR GEE: But on its face it can't possibly amount to an incorporation of those documents or the imposition of any duty higher than the implied duty to observe a lawful and reasonable instruction. All it will do is create a right or an opportunity for either the employee or the employer to bring a matter before the Commission under 739 if there ought be some dispute over it.

PN1605

THE DEPUTY PRESIDENT: Before you reply, Mr Dwyer do you want to say anything about that issue?

PN1606

MR DWYER: It's not a matter that we've got instructions on. There's nothing I can add to it.

PN1607

THE DEPUTY PRESIDENT: All right, that's fine.

PN1608

Yes Mr Gee?

PN1609

MR GEE: I will be brief. Mr Dwyer made some general comments about employees on 457 visas generally. I don't think that's' a fair comment. I'm a registered migration agent and we have a business migration practice and in many - I withdraw that - in some industry sectors and in some occupational groups the opposite could be said, and I don't think notice can be taken of the general statement that an employee on a 457 visa is a vulnerable employee. Certainly no concern to that effect has been pressed by the intervenor in this matter.

PN1610

Mr Dwyer's observation is that there are problems everywhere. I say the opposite is true, is that asking the intervenor to clearly state their objections is a bit like nailing jelly to the wall. When one objection is raised and addressed, another objection rises. When one has regard to the totality of the evidence in this matter all of the union's objections fall away but for we would concede there was a need for the Commission to consider the matter your Honour has raised about an explanation of the time of the vote to the employees in WA, we concede that, and the proper contextualisation of the undertaking.

PN1611

THE DEPUTY PRESIDENT: And I should say that they are the two matters that are exercising my mind. I'm not persuaded that there were any other difficulties.

PN1612

MR GEE: Your Honour, I won't say any more. I've addressed it in our submissions and we would respectfully request that if the Commission is satisfied that the employer has taken the steps required of it, and the Commission is satisfied that there is no reason under 188(c) which would prevent approval, we would ask the Commission to approve the agreement without further delay, which has been considerable in the matter.

PN1613

THE DEPUTY PRESIDENT: Yes, there is a further issue in that both the question of compliance with 180(3) and the 188(c) point which might relate to the undertakings, both those matters go to the question of whether the employees genuinely agreed to the enterprise agreement, and to that extent they concern - let me just find the provision. Yes, they concern satisfaction of the requirements in 186(2). That is the agreement not being a greenfields agreement:

PN1614

has been genuinely agreed to by the employees covered by the agreement

PN1615

To that extent because that is a matter which does fall within the rubric of undertakings, if I'm not satisfied or I have concerns about either of those two things it seems to me that although I can't readily think of an undertaking that might cure them, but nevertheless the legislature seems to contemplate that an undertaking might be able to be given.

PN1616

So I'd simply leave that for your consideration and my present view is this, that if I continue to have concerns about one or either of those two things I would give you an opportunity to seek instructions from your client about whether any particular undertaking might be formulated. I can't readily think of one, and usually undertakings are related to BOOT issues, but 190 isn't confined to BOOT issues. It's broader than that. It's any concern under 186 or 187. That the two concerns that I've identified both fall within 186(2).

PN1617

MR GEE: Yes, your Honour. I can readily think of an undertaking that would address the second matter that is troubling you. I'd have to think about the first.

PN1618

THE DEPUTY PRESIDENT: Yes, I understand. So I'm simply raising it.

PN1619

MR GEE: Thank you.

PN1620

THE DEPUTY PRESIDENT: And so that in the event that after I give this some further thought I'm still not satisfied, my intention would be to at least give you an opportunity to formulate an undertaking.

PN1621

MR GEE: Thank you, your Honour.

PN1622

THE DEPUTY PRESIDENT: Rather than dismissing the application. All right, thank you both for your submissions. I'll reserve my decision.

ADJOURNED INDEFINITELY [10.46 AM]