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B2016/1054, Transcript of Proceedings [2016] FWCTrans 480 (3 November 2016)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009



COMMISSIONER CIRKOVIC

s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union

and

AGL Loy Yang Pty Ltd

(B2016/1054)

Melbourne

9.40 AM, THURSDAY, 6 OCTOBER 2016

PN1

THE COMMISSIONER: Good morning. I'll take appearances, please.

PN2

MR A SLEVIN: Good morning, Commissioner. I seek your permission to appear for the applicant, the CFMEU. My name is Slevin, initial A. I make application on the basis that my client believes that counsel's assistance will ensure that the matter is heard efficiently in the circumstances where there appears to be some complexity given the objections taken. I see that a similar application will be made by the company and there is no objection from our side to that application.

PN3

THE COMMISSIONER: Thank you, Mr Slevin. Is anyone appearing with you?

PN4

MR SLEVIN: I'm instructed by Mr P Pasfield from Slater and Gordon. I have with me Mr Dyke and Mr Hardy from the union.

PN5

THE COMMISSIONER: Thank you, Mr Dyke, and Mr Hardy is at the back. Thank you, Mr Slevin. Mr Parry?

PN6

MR F PARRY: If the Commission pleases, I seek permission to appear with Mr B Avallone for the respondent. I have no objection to legal counsel being granted permission to appear, if the Commission pleases.

PN7

THE COMMISSIONER: Thank you, Mr Parry. On the grounds of the complexity of the matter and that the granting of permission will assist the efficient running of the case, I grant permission. I understand that there have been some discussions between the parties as to the order of proceedings. I understand it's anticipated that the applicant will commence a short opening submission and then straight to witnesses, followed by the respondent in the same order.

PN8

MR SLEVIN: Yes, that's right, Commissioner.

PN9

THE COMMISSIONER: Witnesses. Has there been some discussions as to the witnesses in court during the proceeding? My preference is that they're not here.

PN10

MR SLEVIN: We can accommodate that. In terms of the cross‑examination, we have filed material from Mr Dyke and Mr Hodder.

PN11

THE COMMISSIONER: Yes.

PN12

MR SLEVIN: Mr Hodder is not required for cross‑examination and so he is not present. We have affidavits that he has deposed that we'll rely upon.

PN13

THE COMMISSIONER: There are two, I believe. There was the initial affidavit and then - - -

PN14

MR SLEVIN: A supplementary one.

PN15

THE COMMISSIONER: Supplementary.

PN16

MR SLEVIN: Yes, that's right. There are two statements from Mr Dyke. I'll take you through the material shortly, Commissioner. That's the situation with our witnesses. For the company, Mr Clinch is required for cross‑examination. I don't have any questions for Ms Lehane.

PN17

THE COMMISSIONER: I see.

PN18

MR SLEVIN: So Ms Lehane can remain.

PN19

THE COMMISSIONER: Yes.

PN20

MR SLEVIN: It's only Mr Clinch then who meets your preference, Commissioner.

PN21

THE COMMISSIONER: Mr Parry, do you have any issues with Mr Clinch?

PN22

MR PARRY: If the Commission pleases, Mr Clinch has been instructing me throughout this proceeding. I have a preference for him to be in the Commission on that basis. I don't see, reading the statements, that there is any direct contradiction between the two. My preference is that he stay. We're in the Commission's hands.

PN23

THE COMMISSIONER: Do you have any objection?

PN24

MR SLEVIN: I have no objection.

PN25

THE COMMISSIONER: Thank you. Mr Clinch, you may stay.

PN26

MR SLEVIN: Commissioner, I make the application on behalf of the CFMEU for a protected action ballot order. The application was filed on 26 September 2016, signed by my instructing solicitor, Mr Pasfield, so I move on that application. In accordance with your directions, there has been a filing of some material. I might go to that material.

PN27

First of all, there is the submission of the CFMEU. They are 13 pages and dated 4 October, so I'll rely on those submissions, Commissioner. I don't know if it's your practice to mark submissions. I know that some members of the Commission mark them as exhibits.

PN28

THE COMMISSIONER: I'll mark it for identification purposes only.

PN29

MR SLEVIN: Thank you.

PN30

THE COMMISSIONER: I'll mark it MFI 1.

MFI #1 SUBMISSIONS OF CFMEU

PN31

MR SLEVIN: The next document is the affidavit of Errol Raymond Hodder. That was sworn by Mr Hodder on 27 September 2016 at Townsville in Queensland. It's an affidavit of seven pages and comprises 26 paragraphs. I tender the affidavit of Errol Raymond Hodder of that date.

PN32

THE COMMISSIONER: Did you say 27 September 2016?

PN33

MR SLEVIN: Yes, that's the date that appears on page 7 of the affidavit.

PN34

THE COMMISSIONER: Are there any exhibits to that affidavit?

PN35

MR SLEVIN: Not to that one, Commissioner, no.

PN36

THE COMMISSIONER: 26 paragraphs. Is that correct?

PN37

MR SLEVIN: That's correct.

PN38

THE COMMISSIONER: I'll mark the affidavit of Errol Raymond Hodder, dated 27 September 2016, 26 paragraphs - I'll mark that A1.

EXHIBIT #A1 AFFIDAVIT OF ERROL RAYMOND HODDER SWORN 27/09/2016

PN39

MR SLEVIN: There is a second affidavit of Mr Hodder. That affidavit is six pages in length. It was sworn on 4 October at Springwood in Queensland. It's 52 paragraphs. You will see the date appears on the last page of the affidavit, Commissioner. I tender that affidavit.

PN40

THE COMMISSIONER: I'll mark that affidavit of Errol Raymond Hodder, 52 paragraphs - I'll mark that A2. It's dated 4 October 2016.

EXHIBIT #A2 FURTHER AFFIDAVIT OF ERROL RAYMOND HODDER SWORN 04/10/2016

PN41

MR SLEVIN: Commissioner, in the second affidavit of Mr Hodder, paragraph 21, there is reference to Mr Hodder having conducted attendance ballots held off site at various types of locations. He makes reference to an attendance ballot for the CFMEU members employed by Anglo Coal (Capcoal Management). He makes reference to a print from Spencer C. I have the relevant documents for that proceeding to hand up to you, Commissioner, so that you're familiar with them. I'll provide those to you now. I don't think they need to be marked.

PN42

THE COMMISSIONER: No.

PN43

MR SLEVIN: It's just that that's the convenient time to provide them to you, I think, given their relevance.

PN44

THE COMMISSIONER: Thank you.

PN45

MR SLEVIN: I do that partially, Commissioner, so that you're familiar with the order made by Spencer C, because it was that order, I'm instructed, that informed the drafting of the order in this matter. You will find the third document is the order. We filed an amended draft order on 4 October and amended draft directions. I don't know if you want to mark those, Commissioner, for ease of reference given that there are draft orders and draft directions attached to the application, but just to make clear that the order and directions that are sought are the amended draft order and amended draft directions.

PN46

The nature of the amendments, Commissioner, you'll see on closer inspection of them is just to deal with the timetabling. The only changes are the changes in dates, effectively.

PN47

THE COMMISSIONER: It's dates and timetabling.

PN48

MR SLEVIN: That's right.

PN49

THE COMMISSIONER: Just to be clear, you'll be relying on the amended draft directions and the amended order of 4 October 2016?

PN50

MR SLEVIN: Yes, that's the relief we'll seek.

PN51

THE COMMISSIONER: I'll mark that for identification then, MFI 2.

MFI #2 AMENDED DRAFT DIRECTIONS AND AMENDED DRAFT ORDER FILED 04/10/2016

PN52

MR SLEVIN: Thank you. That brings us to the statement of Mr Dyke. I understand Mr Dyke is required for cross‑examination. Before I call Mr Dyke, you'll see in the submissions filed - and we filed a full submission, Commissioner - there's not a lot more to be said about our application than what has been put in writing. The application is made under section 437 of the Act.

PN53

The requirement in section 443 of the Act is that when such an application is made and provided you're satisfied that the applicant is genuinely trying to reach agreement, then an order must be made. The nature of the application is governed principally by the sections. We have made the application under section 437 and we have explained the application and the orders we seek through the material that Mr Hodder provides.

PN54

In terms of one of the questions that arise from what we know from the company's material, is this question of whether the union is genuinely trying to seek agreement, so that's put in contest by the company. There are some other matters that are raised in terms of a technical nature in relation to the appointment of Mr Hodder as a ballot agent. We have addressed that in the second affidavit of Mr Hodder and he explains how he will meet the concern that any ballot he conducts is fair and democratic. He does so by reference to his extensive experience as a ballot agent conducting the type of ballots that are proposed here, so I don't intend to go into any detail at the moment on that.

PN55

In terms of the question of whether there is a genuineness in the attempts of the CFMEU to try and reach an agreement - - -

PN56

THE COMMISSIONER: Just before you do that, Mr Slevin, I just want you to confirm with me - and I believe you did so, but for clarification purposes - originally you were pursuing a claim for an extension of the time from three to seven days. Is that - - -

PN57

MR SLEVIN: That was being sought by the company.

PN58

THE COMMISSIONER: By the company. What has happened to that?

PN59

MR SLEVIN: We have acceded to that application.

PN60

THE COMMISSIONER: I see.

PN61

MR SLEVIN: There is some clarification that was required as to whether we meant working days. The Act operates in working days and we accepted that that's the case.

PN62

THE COMMISSIONER: So that's not in contention between the parties anymore?

PN63

MR SLEVIN: That second issue is not an issue, Commissioner.

PN64

THE COMMISSIONER: That second issue. Thank you.

PN65

MR SLEVIN: So the issue is whether there is a genuine attempt to reach agreement.

PN66

THE COMMISSIONER: Yes.

PN67

MR SLEVIN: And whether Mr Hodder should be appointed as a ballot agent. They're the two issues for determination today.

PN68

THE COMMISSIONER: Thank you.

PN69

MR SLEVIN: The CFMEU submits that indeed the material demonstrates that it is genuinely trying to reach agreement and that there's no reason for the Commission to reject the application of Mr Hodder conducting the ballot. That is the material. There is, in addition, in the submissions filed - we make reference to the various statements during the section 240 conciliation proceedings.

PN70

THE COMMISSIONER: Was that before Roe C?

PN71

MR SLEVIN: Roe C.

PN72

THE COMMISSIONER: And Gregory C was involved?

PN73

MR SLEVIN: Yes, Gregory C was involved early on for a couple of the conferences and then it was split. It was 3/10 or it might have been 2/10 between the two Commissioners, but it's ongoing. Roe C has listed a further conference on 11 October. You'll see that in the material. In our submission, we say we will seek to rely on those statements and recommendations, since I have a copy of those.

PN74

They were provided to the parties, but not published, Commissioner, so I wonder if they might be marked, as well, as an exhibit.

PN75

THE COMMISSIONER: They are a bundle of documents, are they, Mr Slevin?

PN76

MR SLEVIN: They are a bundle of statements made throughout the conciliation process and recommendations, so they're statements and recommendations.

PN77

THE COMMISSIONER: Mr Parry, do you have any issue with these statements and recommendations being - - -

PN78

MR PARRY: No, we don't, Commissioner.

PN79

THE COMMISSIONER: Thank you. I'll mark the bundle of statements and recommendations, MFI 3.

MFI #3 BUNDLE OF STATEMENTS AND RECOMMENDATIONS

PN80

MR SLEVIN: They're the issues and that's all the material relied upon by the CFMEU, save for the statements of Mr Dyke. As I say, I understand he's required for cross‑examination so I call Mr Dyke.

PN81

THE ASSOCIATE: Please state your full name and address.

PN82

MR DYKE: Geoffrey Wayne Dyke, 5 Lignite Court, Morwell.

<GEOFFREY WAYNE DYKE, AFFIRMED [9.56 AM]

EXAMINATION-IN-CHIEF BY MR SLEVIN [9.56 AM]

PN83

MR SLEVIN: Your full name is Geoffrey Wayne Dyke?‑‑‑Correct.

PN84

Is it your business address that is (address supplied)?‑‑‑Sorry, that's my home address. The address I gave was the business of the CFMEU address.

PN85

You're the secretary of the Victorian district of the CFMEU Mining and Energy Division. Is that correct?‑‑‑Yes, that's correct.

PN86

You have prepared two statements for these proceedings, Mr Dyke?‑‑‑That's correct.

PN87

Do you have them with you there in the witness box?‑‑‑I do.

PN88

The first of those statements, Mr Dyke, does it bear your signature on page 10 of 10 and dated 26/09/16?‑‑‑Yes, it does.

PN89

You're familiar with the contents of that document?‑‑‑I am.

PN90

The statements made therein?‑‑‑I am.

PN91

The content of that document and those statements, are they true and correct, Mr Dyke?‑‑‑Yes, they are.

PN92

I tender the statement of Geoffrey Wayne Dyke, dated 26 September 2016.

PN93

THE COMMISSIONER: Thank you, Mr Slevin. I'll mark the witness statement of Geoffrey Wayne Dyke, comprising 56 paragraphs - are there any annexures, Mr Slevin? No, there aren't. There don't appear to be.

PN94

MR SLEVIN: No, there aren't.

PN95

THE COMMISSIONER: 56 paragraphs - as exhibit A3.

EXHIBIT #A3 WITNESS STATEMENT OF GEOFFREY WAYNE DYKE DATED 26/09/2016

*** GEOFFREY WAYNE DYKE XN MR SLEVIN

PN96

MR SLEVIN: The second document, Mr Dyke, is that a document headed "Further statement of Geoffrey Dyke"?‑‑‑Yes, correct.

PN97

It's four pages in length?‑‑‑Yes, correct.

PN98

With 20 paragraphs?‑‑‑Correct.

PN99

And your name is recorded on the fourth page with a date 4 October 2016?‑‑‑Yes, that's correct.

PN100

You're familiar with that document and the statements made in it?‑‑‑Yes, I am.

PN101

Are the contents of that document and those statements true and correct?‑‑‑Yes, they are.

PN102

I tender the further statement of Geoffrey Dyke, dated 4 October 2016.

PN103

THE COMMISSIONER: Thank you, Mr Slevin. I'll mark the witness statement of Geoffrey Wayne Dyke, comprising 20 paragraphs and 4 October 2016, exhibit A4.

EXHIBIT #A4 FURTHER WITNESS STATEMENT OF GEOFFREY WAYNE DYKE DATED 04/10/2016

PN104

MR SLEVIN: That is the evidence of Mr Dyke, Commissioner.

CROSS-EXAMINATION BY MR PARRY [9.59 AM]

PN105

MR SLEVIN: Mr Dyke, you're aware that there have been a couple of earlier applications for a PABO?‑‑‑Yes, I am.

PN106

I don't think you've given evidence in any of those, have you?‑‑‑I don't recall, to be honest. I was at the hearings, but I can't recall whether I gave evidence or not.

PN107

It was Mr Hardy, who is sitting here in the Commission today, that has given evidence in those proceedings. You know that, don't you?‑‑‑I know Greg has given evidence in the proceedings, certainly.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN108

The most recent application - were you aware that Mr Hardy gave evidence in the most recent application for a PABO; the one before Clancy DP?‑‑‑Yes. I think so, yes.

PN109

You're presumably familiar with the outcome of that and the decision of Clancy DP?‑‑‑Yes, I am.

PN110

Have you seen the material filed in this case by AGL?‑‑‑Yes, I have.

PN111

You have seen a statement of Ms Lehane, my instructing solicitor?‑‑‑Yes, I have.

PN112

She has attached the bulk of the material that was relied on by both parties in those proceedings, hasn't she?‑‑‑I presume she has, yes.

PN113

In her statement, she has attached the statement of Mr Hardy which was relied on in those proceedings by the CFMEU. Were you aware of that?‑‑‑(No audible reply)

PN114

I have her statement here. I'm happy to provide it to you so you can follow this?‑‑‑Yes, well, it would be easier if I could see what we're talking about, but - yes, certainly.

PN115

Yes, that's fine. I'll hand up volume 1 of Ms Lehane's. Can I indicate to the Commission as daunting as the amount of material might appear, much of the second and third volume go to that issue of the seven days because we have to show exceptional circumstances to get the seven days. It's conceded, we understand, that there are exceptional circumstances, but much of those other two volumes go to that material so we won't be needing to burden the Commission with that too much

PN116

THE COMMISSIONER: I'm very pleased to hear that.

PN117

MR PARRY: I can take you through the starting up and slowing down of the units if the Commission is going to be assisted, but - - -

PN118

THE COMMISSIONER: I don't think so at this stage, thank you, Mr Parry. Rest assured, I'll let you know if I do need to.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN119

MR PARRY: Well, the material is there.

PN120

THE COMMISSIONER: Thank you.

PN121

MR PARRY: Volume 1, right - so you've got volume 1 of Ms Lehane and if you turn to paragraph 6, which is on page 2, you'll see there she sets out a number of documents filed in B2016/581. That was, for your assistance, the proceeding before the Deputy President. The first two documents there are a statement of Mr Hardy and the second documents referred to are a statement of Mr Clinch. Then there was a variety of other statements - Mr James, Mr Schumacher - which for the assistance of the Commission go to that issue I was just raising so they're not material of relevance, but do you follow this up to date, Mr Dyke?‑‑‑Yes.

PN122

First one, KEL1, is a statement of Mr Hardy. KEL2 is a statement of Mr Clinch, with attachments being a number of other statements from other proceedings that are relied on before the Deputy President. Do you follow that?‑‑‑Yes.

PN123

I've been through your first statement, exhibit A3 in this proceeding, and compared it to Mr Hardy's statement which led up to the events up until that hearing; up until the end of May. It's fair to say that you or your instructing solicitors, in drafting this, have relied pretty heavily on Mr Hardy's earlier material. Do you agree with that?‑‑‑I'm not sure about that. I was asked to prepare a statement and I prepared the statement to the best of my knowledge. I certainly just relied on what I was doing. I wasn't relying on what Mr Hardy put.

PN124

I presume you haven't compared the two documents, but I'm just suggesting - - -?‑‑‑No, I haven't.

PN125

- - - that there is a fair similarity between them?‑‑‑Well, I guess there will be similarities because we've both been involved in the same bargaining, so - that's all I can say.

PN126

I see?‑‑‑I haven't compared them.

PN127

If we, for example, take you to your first statement in these proceedings, in paragraph 13 you refer to the two main officials at site - being Mr Hardy and Mr Walsh - being on extended leave. Then, in paragraph 15, you refer to events between 25 August and 16 September. Do you see that?‑‑‑Yes.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN128

It seems to me that your description of events in paragraphs 13, 14 and 15 leave out any reference to the events surrounding the appointment of Mr Hardy and Mr Walsh as themselves bargaining agents, which occurred in August, doesn't it?‑‑‑Yes, it does.

PN129

Were you aware that Mr Hardy left that out of his statement in the earlier proceedings, as well?‑‑‑No, I'm not.

PN130

These events - again I've handed up the folder to you of Ms Lehane's statements and KEL2 is the statement of Mr Clinch filed in the earlier proceedings. He had an attachment then, which is at MJC4, which is a statement that he relied on in the proceedings before the Deputy President. At paragraph 28 of that - have you followed this up to date?‑‑‑(No audible reply)

PN131

At paragraph 28 of that, he refers to receiving an email from Mr Hardy and attaching 60 employee bargaining nominations in August 2015 appointing both Mr Walsh and he as bargaining agents themselves?‑‑‑Yes, I'm just - so it was KE2?

PN132

MJC4?‑‑‑MJC4.

PN133

You see the tags on the side?‑‑‑Yes.

PN134

It's paragraph 28?‑‑‑Yes, I see that.

PN135

You will see at paragraph 28, Mr Clinch has referred to this material and without reading fully through it, in paragraph 29 there is reference to correspondence between AGL and your division of the union, to which there was no response. Mr Clinch gave evidence in paragraph 32 about writing to Mr Walsh and Mr Hardy. He goes through a range of events. You're generally familiar with these events, aren't you?‑‑‑Yes, I am.

PN136

Yes. You're aware that the Deputy President made reference to these events in his last decision, aren't you?‑‑‑I'm aware the Deputy President made reference to a number of events. It was a pretty long decision.

PN137

Yes, well, perhaps for your assistance I'll hand up a copy of that decision. Does the Commission have a copy of that decision?

PN138

THE COMMISSIONER: Yes.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN139

MR PARRY: In that decision of the Deputy President, there is paragraph 19. In paragraph 19, he refers to Mr Hardy sending these 60 completed appointment bargaining representative forms. You see that?‑‑‑Yes, I do.

PN140

You have got no reason - that's a fact, isn't it?‑‑‑I've got no reason to believe that's not the case, yes.

PN141

Well, you know it's the case, don't you?‑‑‑Well, I don't know if it's the case, but I've got no reason to believe it's not the case.

PN142

All right. Paragraph 20 refers to the correspondence that Mr Clinch refers to. Presumably you saw that correspondence as the secretary of that division when it was sent?‑‑‑Well, I did, only because it was forwarded on to me from Mr van der Meulen.

PN143

I see. The Deputy President also makes reference to no response being received to that letter. That's the fact, isn't it?‑‑‑Yes, that's correct.

PN144

It is the fact and remains the fact that, as he says in paragraph 21, Mr Hardy and Mr Walsh were officials of the CFMEU's Loy Yang A power station lodge. That is and remains the fact?‑‑‑In terms there, lodge - they're part of the lodge committee. Under the union rules, Mr Walsh is an official, but Mr Hardy is a member of the lodge.

PN145

Then, in paragraph 22, the Deputy President sets out that at no stage on 16 October 2015 or thereafter did Mr Hardy or Mr Walsh assert an ability to act as bargaining representatives independent of the CFMEU. That again is the fact as you would understand it?‑‑‑As far as I'm aware, once bargaining commenced Mr Walsh and Mr Hardy were part of the CFMEU team.

PN146

You said you have had a look through the decision. In paragraph 119, his Honour the Deputy President makes observations and conclusions about all this, doesn't he?‑‑‑he does.

PN147

He refers to Mr Hardy sending the forms and he makes the observation in paragraph 119, in the fourth line, that these developments introduced an element of farce. You see that?‑‑‑I see the comment, yes.

PN148

Presumably you saw that when you read the decision when it was handed down?‑‑‑Yes, I did.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN149

I'm not quite sure why you wouldn't refer to these events when you're coming before the Commission; why you didn't explain these matters or include this material in your statement. Why didn't you?‑‑‑Well, I don't believe that these are relevant to the CFMEU genuinely trying to reach an agreement.

PN150

So you made an assessment they weren't relevant, notwithstanding what the Deputy President had said about it. That's the position, is it?‑‑‑My view is it's not relevant to the CFMEU genuinely trying to reach agreement with AGL.

PN151

Can I suggest to you that this was part of the game playing the CFMEU commenced back in August 2015?‑‑‑We didn't commence bargaining until October.

PN152

Can I suggest to you that the Deputy President was correct in describing this as introducing an element of farce?‑‑‑Again, it's the Deputy President's opinion.

PN153

All right. Now, let's go back to your statement, exhibit A3. With other events, there is the bargaining then that occurred. There is reference there in paragraph 17 to what occurred on 16 October 2015 and it's said:

PN154

Representing the CFMEU were myself, Greg Hardy, Brian Walsh, Mr Duncan, Mr Waanders and Mr Blanch.

PN155

This was a meeting, I think, that the Deputy President has referred to in his decision at paragraph 121; that at no time at that meeting or thereafter did Mr Hardy or Mr Walsh ever assert an ability to act as bargaining representatives independent of the CFMEU. That was certainly true at that meeting, wasn't it?‑‑‑Yes, that is correct. They - - -

PN156

Thank you. Now, in your next paragraph, 18, you refer that at that meeting AGL Loy Yang representatives insisted on a response from the CFMEU to AGL Loy Yang's proposed agreement. To interpose, that was the agreement that had been actually provided to the parties on 24 August 2015, hadn't it?‑‑‑Yes, well, I'm not sure of the exact date, but we were provided with a copy prior to the - - -

PN157

Look, paragraph 14 of your statement says it. They had given you a marked up draft enterprise agreement?‑‑‑Yes.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN158

Then can I suggest we went through the shenanigans, as I'll describe them, of this two bargaining representatives and then you refer to this in paragraph 18, and you seem to be critical of AGL Loy Yang for not negotiating or discussing that with the CFMEU. Can you accept that the CFMEU contributed to that position by their involvement in these farcical events, as I'll describe them?‑‑‑No, I don't.

PN159

You don't accept that. To move on down the page, again can I suggest to you that you have followed almost word for word the statement of Mr Hardy. We get to paragraph 24, where there are events on 12 November about putting the proposed agreement to ballot. Mr Clinch, in his statement - back in the first volume of Ms Lehane's affidavit - referred to particular events that took place around this time and that was the claim by the CFMEU for a much broader application of the agreement. Are you aware of that? You're aware of the extra claim by the CFMEU?‑‑‑I'm aware of the amended scope that we sought. I'm not sure of the date sequence that you're referring to, so without looking - - -

PN160

Well, Mr Clinch gave evidence about this to Clancy DP at paragraph 59 of MJC4. The Deputy President made factual findings about this. Do you still have the Deputy President's decision?‑‑‑I do.

PN161

At paragraph 33 of that, it refers to this application of agreement clause. You see, on paragraph 33, the CFMEU sent a proposed application of agreement clause and then it's set out. You see that?‑‑‑Yes, I do.

PN162

That's the fact, isn't it?‑‑‑Yes, that's a fact and that was six days after the 12th meeting.

PN163

The application of agreement covered not only the employer, but also other entities which employed other staff at the premises, didn't it?‑‑‑That's correct.

PN164

So it was a significant claim because it was claiming in respect of another cohort of employees, wasn't it?‑‑‑They were employees that worked at site. I don't know whether you would regard it as a significant claim, but certainly AGL didn't like the claim.

PN165

Well, AGL wrote to you, as the Deputy President found. There was correspondence, but this was a claim that was pursued by the CFMEU up until 12 April 2016. The Deputy President found that at paragraph 36. That's the fact, isn't it, that this was a claim pursued up until 12 April?‑‑‑That is correct. That's when the claim was withdrawn.

PN166

It was the fact that these people employed by these other entities had never been engaged in the bargaining process, had they?‑‑‑Yes, that's correct.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN167

The Deputy President, in paragraphs 122 onwards of his decision, made findings about this, didn't he; in paragraphs 122 and 123?‑‑‑Yes, he did.

PN168

He sets out there the correspondence that AGL wrote in November and you don't dispute that that correspondence was sent by AGL, as he set out in paragraph 122?‑‑‑I don't dispute it, but AGL never raised the issue that we were trying to cover another employer at that time.

PN169

You don't dispute, as I understand your evidence, that the other related bodies had not initiated or agreed to bargain, do you, as he found at the bottom of the page or in paragraph 122?‑‑‑I don't dispute the Commission's finding.

PN170

As he says in paragraph 123, this was ultimately the subject of a decision of a Full Bench heard in the second PABO application, wasn't it?‑‑‑That's correct.

PN171

Indeed, he made a finding that he did not accept that the CFMEU was genuinely trying to reach an agreement throughout the period in which it persisted with this claim. You see that?‑‑‑I see that.

PN172

Again, you have made no mention of this at all in the material you bring to this Commission, do you?‑‑‑No, I haven't. Not in my statement.

PN173

I suggest to you that this was relevant - wasn't it?‑‑‑In terms of relevance, I think it's well known what the Full Bench ruled. The bit that we don't agree with is that we were not genuinely trying to reach an agreement.

PN174

Yes?‑‑‑That's why we appealed the decision.

PN175

Yes, but, you see, you don't in your statement attempt to give an explanation or justification for this claim, do you?‑‑‑Well, there were a number of reasons for the claim and - - -

PN176

But your statement that you filed in these proceedings simply airbrushes this out. It just ignores it?‑‑‑We don't go through every claim that was made in bargaining in my statement.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN177

You then go on with some of the events that are set out in paragraph 26 and onwards about the events of December into January. Again, if I could take you to - I've just been dealing with the application of the agreement matter, but again in paragraph 34 of his Honour's judgment, there is reference to the claims for non‑permitted matters. You recall that?‑‑‑(No audible reply)

PN178

In the decision of his Honour?‑‑‑Yes.

PN179

Paragraph 34. There was an updated draft agreement and it contained certain matters "that related to the insourcing of roles performed by contractors, such as cleaning." Now, that is the fact, isn't it, that there was such a claim made by the CFMEU in early January?‑‑‑There was a claim for certain work to be done by AGL employees. Our legal advice after AGL raised the issue was that the content that we were putting up was permitted. I guess we went with our legal advice.

PN180

This legal advice, this was a matter that I think was raised in the second PABO hearing, wasn't it?‑‑‑Well, it was, but I wasn't on the stand giving evidence, as you just alluded to before.

PN181

No, Mr Hardy was. I think the first time this was ever mentioned, this legal advice, was in the proceedings for the second PABO, wasn't it? Do you remember?‑‑‑Well, I think so. I remember it being a topic.

PN182

The Full Bench has made findings about that legal advice and when it turned up, haven't they?‑‑‑No, they haven't.

PN183

You don't believe that the Full Bench dealing with the second PABO, made observations about this legal advice and when it was created?‑‑‑I'm not familiar with - if they did, I'm not familiar with that part of their decision.

PN184

Going back to the Deputy President's decision, there was paragraph 35. I suggest to you what happened was AGL wrote about these non‑permitted clauses, as they describe them, and then the CFMEU wrote back - in paragraph 35 - and changed the wording, but left the sort of clause described by the Deputy President there about a "requirement for full‑time equivalent of 10 employees." That's all factual, isn't it, about the claim?‑‑‑The words are factual. Our advice was that that was permitted content.

PN185

Yes, and that was the evidence I think that his Honour refers to there; that at some stage advice was received from the CFMEU internal lawyer that the word "insourcing" was inappropriate, so the word "insourcing" I suggest was taken out and another claim put in. That's the position, isn't it?‑‑‑Well, the word "insourcing" was inappropriate and it was - my understanding, it wasn't a clause, it was a comment, and that was removed.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN186

In the proceedings before the Full Bench, it was still argued by AGL for the second PABO that the words might have changed, but the substance was the same. You remember that argument?‑‑‑That was the argument by AGL. However, the Full Bench never ruled that it was non‑permitted content.

PN187

No, because they had knocked out your second PABO on other grounds?‑‑‑That is correct.

PN188

The position was that these claims relating to the cleaning of offices and amenities were continued, as the Deputy President found, up until the 16th - in correspondence from 16 to 24 May. So those claims were maintained up until that period, weren't they?‑‑‑That's correct.

PN189

His Honour made certain findings about these matters; about this period between January to 24 May 2016. In paragraph 124 onwards, he made findings about these matters, didn't he?‑‑‑Hang on. Just let me check, please. Well, he refers to Esso there. I don't think he determined that the matters were non‑permitted.

PN190

I think he sets out, in paragraph 124, the approach he was going to take, but in paragraph 125 he refers to the first time claims were advanced "for the insourcing of emergency response services." Again, you're not disputing that as a fact, are you, that there was such a claim advanced on or about 28 October 2015?‑‑‑We made a claim for certain work to be performed by AGL Loy Yang employees.

PN191

That was updated. There was correspondence and, as it says at paragraph 127, there was an updated proposal sent by the CFMEU to AGL Loy Yang. You're not disputing that?‑‑‑No, I'm not.

PN192

The evidence in the proceedings before the Deputy President is referred to in paragraph 127, where he dealt with the effect of the claims, being -

PN193

that AGL Loy Yang would be required to employ functions that are currently performed by external contractors. This was acknowledged by Mr Hardy and Mr Dyke.

PN194

Again, that's the fact, isn't it?‑‑‑Yes. I don't dispute that.

PN195

There is then this evidence about the legal advice and he has found -

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN196

at the very least, this advice may not have been obtained until after the last bargaining meeting held on 22 February 2016. If it was in writing, it was not produced.

PN197

That's all accurate, isn't it?‑‑‑We had legal advice prior to 22 February and it was not produced, no.

PN198

The claims were maintained up until, for the cleaning of offices, 16 May, emergency response services to 18 May and the modification of the industrial cleaning claim up until 26 May. He ultimately found, in paragraph 130:

PN199

Given the impact the existence of the claims had been having on bargaining and the timing of their withdrawal, I consider there was a lack of genuineness during the period in which they were maintained.

PN200

You see that?‑‑‑I see that. I don't agree with it.

PN201

Well, I see you don't agree with it, but I don't think you're disputing any of the evidence that underpins it, are you?‑‑‑The bit I don't agree with is the impact of the claims on bargaining.

PN202

I see. Again, these claims are, in effect, ignored in the material you have put before this Commission, aren't they?‑‑‑They are, because they have never been deemed non‑permitted content.

PN203

Yes, but they were relied on by the Deputy President as underpinning a finding that over this period you were not genuinely seeking to reach agreement?‑‑‑Yes, and that's why we appealed his decision.

PN204

Yes, you appealed it, but as you know the appeal was dismissed, which leaves the decision of the Deputy President out there?‑‑‑I understand we were not granted a PABO, yes.

PN205

Yes, all right. Now, your statement goes over other events in this period through to March and, in paragraph 38, you refer that you received a letter on 17 March 2016 from Mr Rennets advising that AGL were no longer prepared to meet on 22 and 23 March because of their preference to meet with six new independent bargaining representatives. You're aware that Mr Clinch, in MJC4, gave evidence about this development in March at paragraphs 102 through to 108. You have that?‑‑‑Yes.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN206

Mr Clinch, in those proceedings, set out that there were 337 AGL Loy Yang employees covered by the 2012 agreement who appointed six non‑union representatives. That was a development you were aware of?‑‑‑Yes, I was.

PN207

In paragraph 105, he described the appointment of the non‑union bargaining representatives as a very significant change in bargaining. You agree with him, presumably?‑‑‑Well, I think it was significant, but at that stage AGL were refusing to meet with us and so there was no change in AGL's position to bargaining.

PN208

You accept that the appointment of these people made it much more difficult to get a bargaining group together?‑‑‑No, I don't.

PN209

Well, some of these people were often away on holidays, weren't they?‑‑‑Yes, and so were some of the company representatives, such as Mr Clinch and other people.

PN210

Yes, but Mr Clinch wasn't an independent bargaining representative. You could still have meetings without Mr Clinch being there?‑‑‑That's correct.

PN211

These people were actually bargaining representatives appointed. They really had a right to be there, didn't they?‑‑‑They do, but again that's for the independent bargaining reps, not for the CFMEU, to address.

PN212

Right, but AGL - Mr Clinch sets out his correspondence and the Deputy President again made findings about these matters, didn't he?‑‑‑Yes, he did.

PN213

Again, going back to his decision, in paragraph 39 he refers to this development about the appointment of these people. I think you agree with what he has said in paragraph 39. Paragraph 40, he notes that:

PN214

Amongst the 337 employees are 58 of the 60 AGL Loy Yang employees who had previously appointed either Mr Hardy or Mr Walsh as bargaining representatives.

PN215

You don't dispute that?‑‑‑I don't know, because I haven't got the bargaining forms. The company receives the nomination forms, so - but I don't dispute it in the absence of not seeing the forms myself, but - yes.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN216

Well, it was one of the bits of evidence of Mr Clinch in paragraph 104 of MJC4?‑‑‑Yes.

PN217

AGL Loy Yang was concerned that the six bargaining representatives were not independent of the CFMEU, wasn't it?‑‑‑Well, it says it was. I notice that it didn't send a letter to the bargaining - or the employees to the same effect that it did earlier on.

PN218

They had a belief that Mr Hardy was involved in the appointment of these bargaining representatives, didn't they?‑‑‑That's what they claimed, yes.

PN219

Outside the proceedings, they raised the question as to whether these bargaining representatives were free of control or improper influence by the CFMEU, didn't they?‑‑‑That's the claim they have made, or their concern, I guess.

PN220

He also refers to the belief of AGL, in paragraph 140, in that last sentence, because the way in which they were appointed and because three of them appear to be CFMEU delegates - to deal with both those propositions, you were aware that there was a fair bit of evidence given in both the bargaining proceedings and the proceedings before the Deputy President about the way these bargaining representatives were appointed, weren't you? There was evidence given about that?‑‑‑There was some evidence.

PN221

That showed pretty heavy involvement by Mr Hardy sitting there in the Commission?‑‑‑It showed Mr Hardy forwarded a nomination form.

PN222

It did a little bit more than that, didn't it?‑‑‑Sorry?

PN223

He put in emails and so forth, that I'll go to shortly?‑‑‑Yes, well, they were put in - there was emails produced that showed Mr Hardy forwarded a nomination form.

PN224

Also there is the reference there to three of them appear to be CFMEU delegates, but that was the fact, wasn't it, that three of these bargaining representatives were delegates of the CFMEU?‑‑‑I believe they are, yes.

PN225

This was a significant matter for his Honour, wasn't it? He made a number of findings about this, starting at paragraph 136?‑‑‑(No audible reply)

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN226

Perhaps, Mr Dyke, before I take you to paragraph 136 and onwards, you referred to AGL not writing or - I'm not quite sure I caught that, but Mr Clinch had given evidence, in paragraph 110 of MJC4, that AGL had written to each of the newly appointed bargaining representatives inviting them to attend a meeting with AGL for the purpose of getting an understanding of their position in bargaining. Were you aware of that?‑‑‑Yes, I'm aware of that.

PN227

You're aware they all refused?‑‑‑I'm not aware whether they all refused or not.

PN228

You just don't know?‑‑‑I don't know, yes.

PN229

In paragraph 136, and there was an assertion made in paragraph 137, that it was inconceivable this number of nominations would occur without some organisation. You were aware that that was the position of AGL Loy Yang in the proceedings before the Deputy President, weren't you?‑‑‑Yes. I'm aware that's what they put, yes.

PN230

And you're aware they put before the Deputy President various materials being emails from Mr Hardy to the bargaining representatives, emails from Mr Richards back to Mr Hardy and further emails from Mr Hardy to these bargaining representatives. Now, you've got no reason to doubt that those emails were sent, do you?‑‑‑I don't.

PN231

There was the submission made in paragraph 138 that the method of appointment of the six bargaining reps was similar to what had occurred some six or seven months ago when Mr Hardy and Mr Walsh were appointed. That was an argument advanced by AGL Loy Yang, wasn't it?‑‑‑I'm not sure really what they refer to there, but my understanding is you appoint a bargaining rep with a nomination form. So if they use nomination forms, I guess, the appointment is similar.

PN232

Paragraph 139 refers to another email prepared by Mr Hardy and I think that email refers to a bundle of documents that were produced under subpoena to Mr Hardy and for the assistance of both Mr Dyke and the Commission. They are set out in MJC-10 in the attachment to KEL-2. You have followed where I have - - -?‑‑‑Yes, I've got that one.

PN233

So don't presumably then dispute that there was such an email prepared by Mr Hardy going through the details relating to the appointment of the bargaining representatives, do you, in paragraph 139? You don't dispute the contents of paragraph 139?‑‑‑139 - - -

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN234

If you do, I'm happy to take you to any part of it?‑‑‑No, that's okay. Yes, so that's to do with the joint - when joining the SBU, is that what you're talking about?

PN235

The outline that the email that is being referred to, Mr Dyke, is the last couple of documents in MJC-10 and it's a three-page email?‑‑‑JC-10. Hang on. Okay, yes.

PN236

I think Mr Hardy used the term, as His Honour set out at the end of that: "When we stand united and box smart, we win." That's the sort of language Mr Hardy was using in that email, wasn't it?‑‑‑That email was, my understanding is, was like a newsletter to all employees. But that's what he says in his newsletter to employees or EBA updates, I think Mr Hardy calls them.

PN237

So I don't understand anything that's said in that to be disputing the contents of what His Honour found in paragraph 139. In paragraph 140, it refers to AGL notifying the CFMEU that it had been advised of the six bargaining representatives and asked you to forward them its letter dated 11 March 2016. You don't dispute that you received such a request or notification from AGL?‑‑‑Yes, I remember - I can't remember whether it was a letter or an email, but I remember something - correspondence from AGL.

PN238

For your assistance and for the assistance of the Commission, I will hand you a copy of what's headed: "GH96." That was the request, wasn't it?‑‑‑Yes, that was the request.

PN239

Yes, I tender that document.

PN240

THE COMMISSIONER: I will mark that R1.

EXHIBIT #R1 COPY OF DOCUMENT HEADED "GH96"

PN241

MR PARRY: His Honour there said there was a reply where you stated you didn't have contact details for these people. That was the fact that you sent such a reply, didn't you?‑‑‑Yes, I did.

PN242

Yes, I will hand that to you, that reply.

PN243

THE COMMISSIONER: What part of His Honour's decision were you just referring to, Mr Parry, sorry?

PN244

MR PARRY: Paragraph 140.

PN245

THE COMMISSIONER: Thanks.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN246

MR PARRY: You will see that that letter is dated 12 October. Mr Hardy has in his or did in his statement refer to that and say the actual date was 12 March 2016. That sounds right, doesn't it?‑‑‑I'm confused. My letter is dated 12 October. This one is 12 March, so I assume that my letter is wrongly dated by - I write by way of response to the email 12 March. That's all I can conclude from that. So I conclude that although it's wrongly dated, the response come after 12 March.

PN247

Yes, well, in the proceedings before His Honour in the statement which is KEL-1 of Mr Hardy, at paragraph 76, he attaches a copy of that letter and Mr Hardy told the Commission: "Geoff Dyke responded with a letter on 12 March 2016 (that was incorrectly dated 12 October 2015)." If that assists?‑‑‑Yes, that does.

PN248

His Honour noted that it was inconceivable you didn't have the contact details for these people. He was right, wasn't he?‑‑‑No, what I say to that is we have got 437 members at site. I don't personally know that many of the people that work at site. There were six names there. I'm not - I wasn't familiar with any of those names and even - - -

PN249

Even though there are a couple of - I'm sorry, go on?‑‑‑Even though as I've later been made aware that three of them are delegates, I wasn't aware at the time that they were delegates and the only way I can get people's contact details is to consult the membership database back at the union and get a complete list of members and then check them off.

PN250

Mr Dyke, you could have easily arranged to obtain the contact details for these people, wouldn't you?‑‑‑Well, the company had them because they had their nominations.

PN251

That's not the question. The question is you could have easily?‑‑‑I don't know about easily.

PN252

I suggest to you this is just part of the game playing that you were engaging in at that time?‑‑‑I disagree. I'm a part-time secretary. I work two days a week. For me to get that information, when I sent this response was for my own, it's not easy to get that sort of information for me, especially given my workload and my other commitments.

PN253

You didn't ask Mr Hardy?--Sorry?

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN254

You didn't ask Mr Hardy, did you?‑‑‑No, I didn't.

PN255

You didn't ask Mr Hardy, did you?‑‑‑No, I drafted the response to Mr Rennets.

PN256

His Honour went on in paragraph 141 referring to various correspondence with the writing to the bargaining representatives. Again, you've got no reason to doubt the exchanges referred to in paragraph 141, do you?‑‑‑I've got no doubt that AGL pursued the bargaining reps, yes.

PN257

Paragraph 142 refers, halfway through, to correspondence repeating an invitation for a meeting on 24 March 2016 and the five - I'm sorry - - -

PN258

THE COMMISSIONER: Mr Parry, before you go on - I'm sorry to have cut you across - did you - - -

PN259

MR PARRY: Yes, I tender that.

PN260

THE COMMISSIONER: Thank you.

PN261

MR PARRY: I tender the letter dated 12 October which the witness has identified as dated 12 March 2016.

PN262

THE COMMISSIONER: 12 March 2016. Thank you. I will mark that R2.

EXHIBIT #R2 LETTER DATED 12 OCTOBER WHICH MR DYKE IDENTIFIED AS DATED 12/03/2016

PN263

MR PARRY: In paragraph 142, the last few lines where AGL Loy Yang wrote to the bargaining representatives and again five of the six bargaining representatives declined a meeting, you have got no meeting to doubt that there was such correspondence and such declining?‑‑‑No, I've got no reason to doubt that.

PN264

His Honour also notes in paragraph 143 that it doesn't appear the emergence of the six bargaining representatives caught the CFMEU and the other bargaining representatives by surprise. And that was the fact, wasn't it? It wasn't a surprise?‑‑‑Well, I don't know about - well, it was - I think it was a surprising development, but I guess that I'm aware that the workforce was concerned and I guess they did what they wanted to do and elected their bargaining reps.

PN265

Were you aware at this time in late March of Mr Hardy's involvement in the appointment of these people?‑‑‑No, I wasn't.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN266

So the one person that could give some detail about this appointment and the reasons for it is Mr Hardy, not you?‑‑‑The CFMEU didn't orchestrate this as an organisation, if that's what you're referring to.

PN267

No, no, I'm asking that the person that would be able to explain why this occurred and the reasons for the involvement of Mr Hardy in it would be Mr Hardy, would it, not you?‑‑‑Well, Mr Hardy can explain why he forwarded on a nomination form. I can't, so - - -

PN268

We can't ask Mr Hardy. He is not giving evidence in these proceedings. I can only ask you and you don't seem to know a lot about it, is that fair?‑‑‑That's fair.

PN269

The SBU that His Honour refers to in paragraph 143, were you sitting on that?‑‑‑Yes, I was part of the SBU, yes.

PN270

You promptly agreed to a suggestion from Mr Hardy they be invited to join the SBU?‑‑‑Yes, my position from the start was that all bargaining reps form an SBU.

PN271

His Honour then sets out some of the history of this, paragraph 145 and 146, evidence during the CFMEU application for bargaining orders. You have got no reason to dispute that His Honour set out the evidence there accurately?‑‑‑Did you say 145 to when - 146 or 147?

PN272

Or 145, there's emails from Mr Hardy and you giving evidence in the bargaining proceedings?‑‑‑No, no, I've got no contention of that.

PN273

In those proceedings before His Honour, Mr Hardy actually had given evidence hadn't he?‑‑‑This is the good faith bargaining order in which case - - -

PN274

No, I'm sorry. This is the proceedings before His Honour Deputy President Clancy. Mr Hardy actually had given evidence, hadn't he?‑‑‑Before Clancy, yes, I think so.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN275

There was a debate then which I don't need to either burden you or the Commission with about the evidence that was given in that case, but paragraph 152, that AGL placed allegations regarding Mr Hardy's involvement in the appointment of the six bargaining representatives at the forefront of its opposition to the application and addressed it in the witness statement of Mr Clinch in its outline of submissions dated 31 May 2016. Do you see that paragraph 152?‑‑‑Yes.

PN276

You understand that in these proceedings the existence and ongoing role of those six bargaining representatives remains an issue, doesn't it?‑‑‑No, it doesn't.

PN277

You say it doesn't?‑‑‑No.

PN278

You have read our submissions?‑‑‑Sorry?

PN279

You have read our submissions in these proceedings?‑‑‑I have, but the bargaining reps had participated in all the S240 conciliation hearings and, in fact, the majority of people that they represent are in the mine and that's - AGL itself admits that's where the most progress has been made. So I don't follow that it's been a problem in bargaining.

PN280

No, I'm sorry. This is the question. Have you read our submissions in these proceedings?‑‑‑Yes, I have.

PN281

Do you understand that it is still an issue raised by AGL the appointment and involvement of the six bargaining representatives? Do you understand that?‑‑‑I understand that AGL has concerns.

PN282

In paragraph 153, His Honour said Mr Hardy is clearly a central figure in this bargaining round and in the various proceedings it has given rise to. You don't dispute that, presumably?‑‑‑Certainly he's the lead negotiator in the bargaining, so he's certainly a central figure, yes.

PN283

Paragraph 154 refers to correspondence indicating he was involved in the appointment process. You don't dispute that there was correspondence that would indicate that, do you?‑‑‑No.

PN284

No. You nodded your head. That's, for the transcript, an acceptance of that. In paragraph - - -

PN285

THE COMMISSIONER: Mr Dyke - I'm sorry, Mr Parry - I would prefer you not to nod your head, rather I'd like you to answer?‑‑‑Well, I did say - I did say as well, so maybe it didn't get picked up, I don't know.

PN286

I didn't hear, so, thank you.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN287

MR PARRY: As the Commission pleases.

PN288

Also in paragraph 155, in addition to being a central figure - I'm reading from it: "Mr Hardy holds a position of influence." Again, you would agree with that, wouldn't you?‑‑‑A position of influence, yes. Well, Mr Hardy obviously influences the process as the lead negotiator of the SBU in a democratic context.

PN289

His Honour, in paragraph 156, refers to the evidence said there is no other explanation as to why in an unprecedented move 337 CFMEU members including 58 who had previously appointed either Mr Hardy or Mr Walsh as bargaining representatives, simultaneously appointed the six bargaining representatives. Do you see that?‑‑‑Yes, I see that.

PN290

In all the evidence given in this proceeding before the Commission to date, there is no explanation given for why that occurred, is there?‑‑‑No.

PN291

Ultimately, His Honour made a finding in paragraph 158, he was satisfied on the basis of the evidence in that case and, as I interpose, the evidence that we have before the Commission in this case, he was satisfied the CFMEU was involved in the nomination by 337 employees of the six individuals as bargaining representatives and has been involved in their subsequent ongoing participation in bargaining. Do you see that?‑‑‑I see that.

PN292

Can I suggest that you were conscious of that finding by His Honour?‑‑‑I'm not sure what you - what the question is.

PN293

You were conscious that he had made a finding?‑‑‑Well, I read his - I read his finding.

PN294

Again, the position is that the CFMEU has chosen in this case to call no evidence about the CFMEU involvement or the involvement of these bargaining representatives in subsequent ongoing bargaining, have they?‑‑‑No, we have not.

PN295

Indeed, His Honour found that this was a factor that weighed against finding that AGL Loy Yang had been genuinely trying to reach agreement. You understand that?‑‑‑I understand that, but my recollection is the Full Bench actually queried that as being reliant upon in arriving at his decision.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN296

Ultimately, in paragraph 165, he was not persuaded that the CFMEU satisfied the requirement that it had been - and I am interposing the words - and was and is genuinely trying to reach agreement with AGL Loy Yang and he referred to three matters. The final one, for example, was: "The involvement of appointment of the six bargaining representatives, a highly unusual development that has of itself disrupted the bargaining, altered its process and is ongoing." Do you see that?‑‑‑Yes, I see that.

PN297

Notwithstanding that finding of His Honour, your statement and the CFMEU contains no details of these matters that I have been taking you through involving the six bargaining representatives?‑‑‑Again, I provided a witness statement for the CFMEU.

PN298

Just before we leave this topic of the six bargaining representatives, you're aware that the - and I think you refer to it - the CFMEU made an application for a bargaining order back in May/June last year - or this year, I'm sorry?‑‑‑Yes, I am. I think it was May, yes, or June.

PN299

And it was unsuccessful?‑‑‑Yes.

PN300

I think Commissioner Gregory handed down a decision dated 2 June 2016. I just wanted to - there's a couple - - -

PN301

THE COMMISSIONER: Do you by any chance have a copy for me of that one?

PN302

MR PARRY: Tab 3 of a folder that we handed up.

PN303

THE COMMISSIONER: Which folder was it?

PN304

MR PARRY: I don't think it was formally tendered with the Commission. It was handed to your associate before the proceeding commenced.

PN305

THE COMMISSIONER: Thank you.

PN306

MR PARRY: I have a copy for Mr Dyke.

PN307

THE COMMISSIONER: I'm sorry, which tab was that one again?

PN308

MR PARRY: Tab 3, I'm told.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN309

THE COMMISSIONER: Thank you.

PN310

MR PARRY: You gave evidence in that proceeding, Mr Dyke?‑‑‑I did.

PN311

Some of this proceeding, can I say, and I am dealing - I am going to take you to paragraph 116 of the Commission's findings and there was a complaint about the conduct of AGL in meeting and so forth. In paragraph 116, he found the Commissioner, the evidence makes clear, the appointment of the six individual employee bargaining representatives was a surprising development at least for AGL. You don't presumably dispute that?‑‑‑No, I don't.

PN312

"Mr Dyke, in cross-examination, begrudgingly acknowledged it was a development that provided AGL with some course to seek to understand what motivated this change and what the new bargaining represented wanted on behalf of the employees they represented." You accept that you made that statement or words to that effect?‑‑‑They're not my words. They're the Commissioner's words.

PN313

Yes, but you're not dispute that you said words to that effect?‑‑‑Well, my recollection is that AGL used it as an excuse, not to me. Now, under cross-examination it was put to me that AGL was entitled to try and meet with them separately to resolve its concerns. I think that's what I grudgingly acknowledged that AGL was free to address its concerns. I certainly didn't acknowledge that it was a development that halted bargaining.

PN314

In paragraph 118, in the second sentence, he was satisfied that the appointment of the six individual employee bargaining representatives was a significant development. Again, you are not going to dispute that, are you?‑‑‑No, I'm not.

PN315

THE COMMISSIONER: Mr Parry, are you about to go to another issue or are you close to concluding? I don't wish to rush you. I was just going to take a short 10-minute adjournment if this topic had - - -

PN316

MR PARRY: No, I was going to move onto the second statement. So that's a satisfactory time, if that suits the Commission.

PN317

THE COMMISSIONER: It is an appropriate time. Certainly. Thank you. We will adjourn until 11.25.

<THE WITNESS WITHDREW [11.15 AM]

SHORT ADJOURNMENT [11.15 AM]

*** GEOFFREY WAYNE DYKE XXN MR PARRY

RESUMED [11.30 AM]

PN318

THE COMMISSIONER: Thank you.

PN319

MR PARRY: If the Commission pleases.

<GEOFFREY WAYNE DYKE, RECALLED [11.30 AM]

CROSS-EXAMINATION BY MR PARRY, CONTINUING [11.30 AM]

PN320

MR PARRY: Mr Dyke, your second statement responds to some of the material in Mr Clinch's statement, doesn't it?‑‑‑That's correct.

PN321

I think in paragraph 13, you refer to the application to terminate the current enterprise agreement filed by the respondent during the s.240 conciliation process. You are aware that that was a matter discussed during those series of conferences, that event, or that possibility?‑‑‑Yes, that's correct, that threat was made.

PN322

Indeed, in MFI3, I think I have, which is the bundle of recommendations handed up, I think the very second one on 1 July speaks of both parties being in a position to discuss the timing of the foreshadowed termination application and protected industrial action if progress is made at the conference on Wednesday, 6 July 2016. Do you remember that?‑‑‑Yes.

PN323

Indeed, on the 7h, there was such discussions, wasn't there, about the timing of the termination application?‑‑‑I'm not - to be honest, I didn't attend all the 240 conferences. I was required to undergo treatment and so I missed some of them. So I don't recall whether that was.

PN324

There may have been such discussions or may not have been, you just don't know?‑‑‑I'm not aware. I couldn't categorically say whether there was.

PN325

Yes, because the recommendation on 7 July in that bundle refers to the company deciding not to make the termination application until after meetings on 18 and 20 July 2016. You are aware of that?‑‑‑Yes, I'm aware of the correspondence. The meetings I didn't attend, I would have had correspondence from.

PN326

Those meetings on 18 and 20 July, were conferences to be held at the Fair Work Commission, weren't they?‑‑‑Yes, I believe so.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN327

Your statement in paragraph 14 seems to be critical of AGL for not waiting for feedback from the SBU. You are aware, aren't you, that the recommendation was made, and these are attachments to Mr Clinch's statement in the current proceedings, that you - and it's attachments to Mr Clinch's statement and I'm happy to provide you a copy - MJC-12. I will just give you the bundle just up from MJC-12 through to MJC-15. The recommendation of the Commissioner which is in your bundle MC-12, didn't say anything about there being further negotiations. It really said in p.2 of the recommendation of 24 August that he recommended and urged the parties to consult with their constituencies and seriously consider endorsing the proposal as to the resolution of the bargaining dispute. That was the position, wasn't it?‑‑‑Yes, that is exactly what the Commissioner said. He said, "Consult with your constituents," and he sought endorsement of that proposal.

PN328

There is no suggestion there was to be a further process of consultation or negotiation between the parties thereafter, was there? There is no suggestion in his - - -?‑‑‑Well, I think it's implied. Obviously if you can stop with your constituents and they give you feedback that they are not going to vote for a proposal that you would obviously confer with the other party and discuss those matters.

PN329

You say it's implied, but it's certainly not stated in the recommendation, is it?‑‑‑It's not stated to put it to a vote.

PN330

But your position the day after, according to the correspondence that's attached to Mr Clinch's statement, the day after the recommendation was handed down, you were writing to AGL, and this is MJC-12, to ask whether AGL Loy Yang will accept the recommendation as a means of resolving the current dispute and seeking a written response by three or four days away. That was the position?‑‑‑Well, that's correct.

PN331

They wrote back saying, "Well, we just got it on the 26th," and they wrote back - and this is MJC - 29 September, saying, "Well, we're looking at it, we're reviewing it, but would you confirm if the CFMEU is prepared to accept the recommendation as a means of resolving the current bargaining dispute?" So they were asking you. Do you agree with that?‑‑‑Yes, that's correct.

PN332

You wrote back saying - and this is the MJC-14 - in reply to that and, I quote: "The CFMEU is unable to discuss Commissioner Roe's recommendation with its constituents in the absence of any clear indication from AGL Loy Yang as to whether it will accept the recommendation." That's your demand?‑‑‑No, that was our position. I wouldn't class it as a demand.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN333

It's not part of the recommendation of Commissioner Roe, is it, that one party or the other had to accept it or not before they talked to their constituents?‑‑‑Well, it would be pointless our members accepting something AGL rejected.

PN334

But your position was you are not even going to talk to your constituents until AGL accept the recommendation?‑‑‑Yes, and that was the reason for that because unless AGL accepted it, it was pointless talking to the members.

PN335

AGL accepted the recommendation and this is in AGL - MC-15: "AGL is willing to accept the FWC's recommendation. We hope the SBU members do the same and we are going to put it to a ballot in mid-September." So they did. They told you they were going to accept it. They did what you wanted?‑‑‑Yes, they did, but they went further.

PN336

I'm sorry?‑‑‑They went further.

PN337

In paragraph 15, you refer to this meeting which occurred, which Mr Clinch refers to. It dealt with a number of matters, not all of which concerned the enterprise agreement negotiations such as a planned survey of employees. This is a planned survey of employees for use in the termination proceedings?‑‑‑Yes, that's correct.

PN338

I think you have referred to the termination statements filed earlier in your - filed by AGL in paragraph 5 of your second statement, haven't you?‑‑‑Sorry, the termination statements in paragraph 5?

PN339

Yes, you have referred to it. Sorry?‑‑‑Which?

PN340

In paragraph 5 of your further statement you have referred to statements filed in those proceedings by AGL and I am not going to go to that, but I'm saying you have filed a statement in those proceedings as well, haven't you?‑‑‑Yes, I have, yes.

PN341

That statement you filed in those proceedings, I'm not sure I follow one part of it and I have the first page of it, not the whole statement, and I'm happy to show it to you. But it says, and I quote: "The CFMEU is the bargaining representative for its member who are employed by the applicant in its power station and coal mine. 437 of the 578 employees covered by the enterprise agreement are members of the CFMEU." Right?‑‑‑Yes, that's correct.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN342

That statement, is that true or not?‑‑‑Of course it's true.

PN343

You see, it doesn't seem to fit with the evidence you have been giving to this Commission and the evidence you have given to the Commission constituted by Deputy President Clancy that there are these bargaining representatives and the CFMEU is only the bargaining representative for some 80 or 90 people?‑‑‑That's correct.

PN344

You see, so if this is true, then those other bargaining representatives are really just emanations of the CFMEU?‑‑‑I don't follow you.

PN345

Do you understand that you proposed telling the Commission in another proceeding that the CFMEU are the bargaining representative for its members who are employed by the applicant in its power station and there are 437 of them who are members of the CFMEU. Either the CFMEU is the bargaining representative for all those people through the cypher of these six other bargaining representatives or it's not?‑‑‑Well, one is a subset of the other. I don't - - -

PN346

Yes, thought that might be the case. So when you say one is the subset of the other, really, those people, those other six bargaining representatives are really just a subset of the CFMEU?‑‑‑The subset is the 90 of the 375 - sorry, 300 and whatever it is.

PN347

The 90 are? Which 90?‑‑‑Well, we have got - sorry, let me explain again. We have got 437 members, financial members, on our books. So that's who we represent. And we have got 90, or thereabouts, or a hundred - I'm not sure of the exact figure because I haven't been able to work it out, but let's say 90 to a hundred that we're bargaining on behalf.

PN348

No, no, you are not bargaining on behalf of them. You are the bargaining representative for them by default?‑‑‑Well, that's the same thing, yes.

PN349

No, no, you assert in this other material that you are the bargaining representative for your members who are employed and you then say 437 are members of the CFMEU. You don't say you're the bargaining representatives for only some of the members being 90 or a hundred?‑‑‑Well, it's implied within that, but - - -

PN350

No, what I suggest is implied in that is that when you say this, it is the truth, that the extra six bargaining representatives are a sham and they are mere puppets of the CFMEU and the CFMEU are really the bargaining representative. That's the fact, isn't it?‑‑‑No, that's not correct.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN351

Indeed, what you have done in the next or going to tell the next Commission is quite possibly the truth except it's the truth disguised by these other appointments. Do you accept that?‑‑‑No, I don't.

PN352

Indeed, not only is it the truth that this is a sham, but it's a continuing sham?‑‑‑I disagree with that.

PN353

You also give evidence about the 36 and you make various comments in this second statement of: "Well, I didn't really say that. It could be up to that." Mr Clinch has attached some of your media statements and I think MJC-24 is a transcript of what you were saying and I will hand you a copy of MJC-24. This is an interview you gave ABC Gippsland Breakfast Program on 15 September 2016. And you were asked by Jonathon Kendall:

PN354

Now, what came about last night? We had a meeting of members. We had about 200 turn up. We spoke about this proposal, put it to members for a vote. We identified 36 job positions would be lost which is about seven per cent of the workforce.

PN355

Mr Dyke, for all the prevaricating in other parts of your statement about "estimated up to and about", can you accept that when you used that, when you had that meeting with the journalist the day after on radio that those are the words you said?‑‑‑Well, I assume - I accept that they're probably the words I said, yes.

PN356

That's not qualified or up to or about. That is a definite statement, isn't it?‑‑‑Yes, that is a definite statement, but that certainly may have come about from maybe forgotten to qualify that statement.

PN357

You also say in paragraph 17, it was your belief that Commissioner Roe had done a very good job and you said so publicly. Can I suggest your public statements as far as Mr Clinch has put in evidence, MJC-18 is another transcript again there is a newsreader and a quote from you. You see where you say: "We wouldn't recommend people vote for something that we didn't negotiate." Do you see that?‑‑‑I'm looking for it. I remember saying something along those lines.

PN358

That's hardly a ringing endorsement of the process, is it? You're really saying that the recommendation of the Commissioner was going to be voted against because it was something you didn't negotiate?‑‑‑Our position on that is that if we have got something thrust upon us that we haven't negotiated, well, then we will not put that to the members. And my position on that was that it's up to the members to decide how they vote.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN359

Did you tell the Commissioner that that was a prerequisite?‑‑‑Sorry?

PN360

Did you tell the Commissioner that that was a prerequisite before he made his recommendation?‑‑‑A prerequisite that we have some say in the outcome?

PN361

You had gone through a s.240 process. There was to-ing and fro-ing. I'm not going to get into the detail of that, but you did have involvement in it?‑‑‑Yes, we did.

PN362

You can hardly be critical of the Commissioner for making a recommendation which both parties sought?‑‑‑Again, I said the Commissioner had done a very good job and I said that publicly and I notice in Mr Clinch's evidence there is evidence of that. So, again, the issue was we agreed on some matters on 1 July and the recommendation went outside those matters were agreed.

PN363

In MJC-18, another interview on 6 September, you are quoted as saying: "We've had almost no say in what was on the table and what was negotiated." It seems a consistent theme from you that you're really critical of the process?‑‑‑No, I'm stating that - what I'm stating there is how I saw what happened. AGL filed a termination application against us and through that process we're under enormous pressure to make concessions and we made 30 - 40 concessions in that process.

PN364

Yes, but I am dealing here with you saying about your public position. In MC-25, another interview, ABC Gippsland asked about the secret ballot. You were asked: "Why did the workers say 'no'?" Geoff Dyke: "The workers have had no say in what's been put before them. Overall there has been no bargaining. AGL refused outright to bargain." Well, again following a 240 process and acceptance of a recommendation and a 240 process which involves bargaining, it's hardly a ringing endorsement of the process followed by Commissioner Roe, is it?‑‑‑Those comments were directed at AGL's behaviour and I believe they are factual statements.

PN365

Overall there has been no bargaining after all this time?‑‑‑AGL has refused to bargain, in my opinion, genuinely bargain.

PN366

So the 240 process was a sham again?‑‑‑I didn't say that. I disagree with that. In fact, I saw the 240 process as being a mechanism to get somebody that wouldn't bargain to bargain.

PN367

Clearly it didn't work?‑‑‑Well, it hasn't worked yet.

*** GEOFFREY WAYNE DYKE XXN MR PARRY

PN368

Hardly a ringing endorsement of the Commissioner?‑‑‑It's not the Commissioner's fault if a party refuses to bargain.

PN369

I have nothing further, if the Commission pleases.

RE-EXAMINATION BY MR SLEVIN [11.53 AM]

PN370

MR SLEVIN: Do you still have Mr Clinch's statement there, Mr Dyke? Do you have Mr Clinch's statement? I want you to turn to - these haven't been marked in the copy that came through.

PN371

MR PARRY: He doesn't have it all.

PN372

MR SLEVIN: He doesn't have it.

PN373

Do you have the annexure which is the ABC Gippsland interview on 15 September 2016 which I think is marked MC-24?‑‑‑Yes.

PN374

Do you have that?‑‑‑Yes, I do.

PN375

At the bottom of the first page, the interviewer asked you: "And so how do you calculate that 36 jobs will be lost?" And you give an answer at that point that appears to be in transcribing it some licence has been taken. Can you read through that and make sense of those notations, "1B7" asterisk, et cetera?

PN376

THE COMMISSIONER: I'm sorry, before you do that, I just want to be clear that I'm looking at the right thing. Could I be shown what the witness has?

PN377

MR SLEVIN: Yes.

PN378

THE COMMISSIONER: Thank you.

PN379

MR SLEVIN: Do you see the first line is: "Well, there's eight jobs which will be lost and they're" - and then it says, "One by seven"?‑‑‑That's a one by seven shift.

PN380

What does that mean?‑‑‑That means day shift, seven days a week. So there was eight that were removed from that group.

*** GEOFFREY WAYNE DYKE RXN MR SLEVIN

PN381

Then the next sentence: "About an estimate 10 jobs lost in the" - what's it - - -?‑‑‑"Two by 12," which is in the mine on the stacker, reductions from four to two. So that's two by 12 shifts, 12-hour shift, day and night.

PN382

Then: "10 jobs lost in the power station, two by 12"?‑‑‑Yes, so that's day and night shift.

PN383

"At least two jobs lost in the warehouse"?‑‑‑Yes.

PN384

"And about six jobs lost in maintenance"?‑‑‑Yes.

PN385

Why did you have the impression that jobs would be lost?‑‑‑Firstly, in maintenance, AGL have sought to only have three maintenance teams. Currently there's seven. Each maintenance team has got a team leader and a coordinator. It seems pretty obvious to me that if you go from seven teams to three, you're not going to have multiple team leaders and multiple coordinators. So that's where I estimated that at least, I think, one team doesn't have a team leader and a coordinator, so I estimated that there is at least six jobs. The proposal basically says that two months after the agreement is signed, AGL will consult and restructure maintenance and so there could be a number of other jobs lost in that restructure. So it's hard to quantify the actual jobs there.

PN386

Where did you get your number from?‑‑‑Well, I just - mine was an estimate based on that if you have got seven teams and you are reduced to three that you are going to lose potentially a team leader and a coordinator from at least three of those teams.

PN387

Does that cover all of them then?‑‑‑Sorry? Well, some of the other jobs, like the 10 in power station operations, AGL specifically refer to that. So that's quantified. The two jobs in the warehouse - and I'm not sure of the exact titles, but they're like a warehouse - there's a warehouse supervisor for the mine and one for the power station and there's, I think they're called task coordinators or something, there's three of them. AGL in some of their documentation including the application to terminate the agreement talk about setting up one warehouse structure and the Commissioner Roe recommendation specifically refers to two of those or those warehouse positions being supervisor or coordinator as not being - or being excluded within his recommendation. So he refers to them specifically. So I regarded those positions as being under threat.

*** GEOFFREY WAYNE DYKE RXN MR SLEVIN

PN388

The maintenance jobs?‑‑‑I've already covered the six maintenance. The stacker, it's pretty obvious, if you've got four on a stacker and you can run it with two, potentially there's a loss of another two jobs. There's five shift lines so if you lose two jobs on a shift line there's potential for 10 jobs.

PN389

Now, I'll just take you back. You were asked a question earlier about the statement in the termination proceedings and the paragraph that said that the union has 437 members and that the union is a bargaining representative for its members?‑‑‑Yes.

PN390

You gave a response and I don't think you finished it about the members you're representing being a subset. What did you mean by that?‑‑‑Well, what I mean by a subset, the ones that have not nominated another bargaining representative.

PN391

Nothing further, Commissioner.

PN392

THE COMMISSIONER: Thank you, Mr Dyke. Thank you for your evidence. You're excused.

<THE WITNESS WITHDREW [12.01 PM]

PN393

MR SLEVIN: That's the evidentiary case for the union.

PN394

THE COMMISSIONER: Thank you.

PN395

MR PARRY: If the Commissioner pleases, subject to what the Commission wants, we've put in written submissions. I don't propose to make a detailed opening unless the Commissioner likes detailed openings.

PN396

THE COMMISSIONER: I'd like a brief opening. I'd like to know where your evidence is headed and why, bearing in mind that I will - and I perhaps say this to the parties now so that there can be some programming and perhaps discussion over lunch. My preference in this case is going to be at the conclusion of the evidence to order an expedited transcript and to ask the parties for submissions, final submissions, to be given Wednesday afternoon of next week. So I put that to the parties now to enable whatever discussion needs to happen, if it does need to happen, between the parties over lunch, but that will be my preference. I'll also be asking for a written outline to accompany those submissions.

PN397

MR SLEVIN: I wonder if we might be addressed on your preference, Commissioner. We're ready to give submissions today. The matter is of limited compass and we don't require transcript to make those submissions.

*** GEOFFREY WAYNE DYKE RXN MR SLEVIN

PN398

THE COMMISSIONER: Mr Parry?

PN399

MR PARRY: Well, we'd prefer a process whereby the arguments are properly placed, and the evidence before the Commission. I'd be seriously concerned if we weren't to have access to transcript and not being able to prepare proper submissions. Obviously these are matters, without going back into the past too much, which is about - there's clearly significant issues here, and I don't think anyone is denying there are significant issues here, and we ‑ ‑ ‑

PN400

THE COMMISSIONER: They're both protracted and complex, and given the vast number of volumes of material that are being presented to me, unless there is some very cogent reason why the parties object to this process this way, then that is what's going to occur.

PN401

MR PARRY: We can accommodate that, if the Commission pleases.

PN402

MR SLEVIN: Well, in response to what my friend says, the Act puts a two‑day preference on the hearing and determination of these matters.

PN403

THE COMMISSIONER: Where practicable.

PN404

MR SLEVIN: If it's practicable.

PN405

THE COMMISSIONER: Yes.

PN406

MR SLEVIN: It doesn't become impracticable just because those who object bring four volumes of material from previous proceedings, which is in essence what they've done. We say those previous proceedings, and we've put it in our submission, deal with matters in the past, and a long time in the past - May of 2016.

PN407

There's only one issue that we understand - well, there's two issues that we understand are contemporary, and that's the complaint about the bargaining reps continuing to be bargaining, and we say we addressed that by Commissioner Roe's statement, because they've participated in Commissioner Roe's process at the request of the section 240 application that was made that listed those reps as being party to that dispute, a simple response and a complete response.

PN408

The next is the representations made and response to the recommendation arising from the section 240, and that's simply addressed as well through the correspondence between the parties and the events that are uncontested since that time. So those two contemporary matters we say are the only matters that would impact ‑ ‑ ‑

PN409

THE COMMISSIONER: When you say uncontested, are you saying that the matters that are uncontested are the matters that occurred up to 10 June 2016?

PN410

MR SLEVIN: Well, we say that ‑ ‑ ‑

PN411

THE COMMISSIONER: Is that your proposition?

PN412

MR SLEVIN: We say that those matters have been dealt with by the Commission. We're not going to go reinventing the wheel on those matters. There's only one issue there in Deputy President Clancy's decision that there is now some clarification on, and that's the question of whether Mr Dyke had the emails of the bargaining reps in March.

PN413

Mr Dyke didn't give evidence before Deputy President Clancy. He's now given evidence before you to say, "I'm a part‑time secretary of a union. I didn't have access to them. That's why I said to them when I responded to them immediately, 'I don't have them, you have them. Look after it yourself.'" That's the only issue prior to June in the evidence that there's any contest about. So what we say is ‑ ‑ ‑

PN414

THE COMMISSIONER: The contest, to the extent that it exists, is one that post‑dates 10 June, certainly, and that is one that is hotly contested, both in terms of - to a lesser extent perhaps the factual matrix as to the dates of certain things, but certainly the contextual characterisation of those things is hotly contested.

PN415

MR SLEVIN: And that's a matter for submission, not evidence. We don't need the transcript about that.

PN416

THE COMMISSIONER: Which is why I say that both the parties and the Commission will benefit from the transcript and from submissions from counsel that direct the Commission to precisely the matters that we're discussing now.

PN417

MR SLEVIN: As the Commission pleases. We say the matter is of very short compass, that's all, and it won't take until Wednesday ‑ ‑ ‑

PN418

THE COMMISSIONER: Well, which is why I'll list it only for an afternoon then on Wednesday.

PN419

MR SLEVIN: Yes. I'm instructed to point out that the application was filed on the 26th of the 9th, and given the time‑frames and the circumstances that the ‑ ‑ ‑

PN420

THE COMMISSIONER: From my recollection, your instructor was offered an earlier date but your unavailability led to today's ‑ ‑ ‑

PN421

MR AVALLONE: That's not correct.

PN422

MR SLEVIN: No.

PN423

THE COMMISSIONER: That was my ‑ ‑ ‑

PN424

MR SLEVIN: It was tomorrow I was unavailable, Commissioner.

PN425

THE COMMISSIONER: So to that extent then you were accommodated in terms of today's date.

PN426

MR SLEVIN: As the Commission pleases.

PN427

THE COMMISSIONER: Thank you.

PN428

MR PARRY: If the Commission pleases, the position is that there is a jurisdictional prerequisite that is set out in section 443 of the Act. That jurisdictional prerequisite is that you be satisfied that each applicant has been and is genuinely trying to reach an agreement with, in this case, AGL. The Act gives some sense of history, that is, has been and also is, looks at the contemporaneous position of genuinely trying to reach an agreement.

PN429

The authorities in this area that are - there have been a couple of recent significant authorities in significant cases involving Esso and also an appeal in these proceedings. The assessment of whether there has been a genuine trying to reach an agreement is to be made taking into account a range of factors and there will be a range of factors that the Commission will be asked to balance in making an assessment within the exercise of that jurisdiction.

PN430

That assessment will involve looking at the factors in the past, many of which have been the subject of findings, and we'll be saying to the Commission that we'll be urging similar findings be made in respect of - that were made by Deputy President Clancy. We've put that material before the Commission and we don't understand that there can be a lot of contest that there has been for a long period of time a position where the CFMEU has not been genuinely trying to reach agreement.

PN431

As the Commissioner noted in the exchange with my learned friend, there tends then to be a bit of a focus on more recent events, being the events after his Honour's decision, and there are a couple of significant events that we'll be wanting to take your Honour to much of the evidence and as to the events that occurred ‑ ‑ ‑

PN432

THE COMMISSIONER: Perhaps prior to the decision. If the decision was, from my memory, 1 July, then ‑ ‑ ‑

PN433

MR PARRY: There will be some of that. We will be saying that a lot of that is fairly settled, but it's all before the Commission. We'll be saying more recent events have not changed the circumstance. In a way, we'll be ultimately saying, in a very simple way, that nothing has changed, that the position remains the same as it was when the Deputy President - it's a balancing exercise. There are a number of factors that the Commission will need to take into account and there's a fair bit of evidence we will be directing the Commission to.

PN434

That's one matter. The second matter is the issue about exceptional circumstances. Now, it's all very well for there to be a concession. We don't mention this as a long‑time thing, but we'll be saying there's sufficient material before the Commission to justify the making of an order increasing the period of notice. We will also be arguing about the protected action ballot agent, but that will be a shorter argument, and the form of the order, we'll be making some argument about that.

PN435

We will be relying on the evidence that's been put forward by Ms Lehane and Mr Clinch who is here to give evidence. I've mentioned the evidence of Ms Lehane. If I could commence by - the Commissioner has a number of volumes of material. She's not required for cross‑examination. I'd make application that her statement be marked as evidence and accepted as evidence.

PN436

THE COMMISSIONER: Is there any objection to that?

PN437

MR SLEVIN: No objection, Commissioner.

PN438

THE COMMISSIONER: Thank you. That being said, it's the witness statement, is it not, Mr Parry, of ‑ ‑ ‑

PN439

MR PARRY: It's a witness statement of Kate Elizabeth Lehane. It's a very short statement in itself; it's three pages, but clearly it attaches large amounts of evidence that were before the Deputy President.

PN440

THE COMMISSIONER: And it's dated 29 June 2016. Is that correct?

PN441

MR PARRY: Yes, Commissioner.

PN442

THE COMMISSIONER: Yes.

PN443

MR PARRY: September.

PN444

THE COMMISSIONER: Just bear with me for a moment. It looks like I might have a copy that's - you're right, it is 29 September 2016, six paragraphs, and it attaches four folders. Is that correct, Mr Parry?

PN445

MR PARRY: Yes.

PN446

THE COMMISSIONER: I'll mark that R3.

EXHIBIT #R3 WITNESS STATEMENT OF KATE ELIZABETH LEHANE DATED 29 SEPTEMBER 2016

PN447

MR PARRY: Then there is Mr Clinch, and if it's satisfactory to the Commission, I'll call Mr Clinch now.

PN448

THE COMMISSIONER: Yes, thank you.

<MICHAEL JOHN CLINCH, SWORN [12.15 PM]

EXAMINATION-IN-CHIEF BY MR PARRY [12.15 PM]

PN449

MR PARRY: If the Commission pleases. Your full name is Michael John Clinch?‑‑‑Yes, that's correct.

PN450

Your business address is 699 Bourke Street, Docklands in the State of Victoria?‑‑‑Yes.

*** MICHAEL JOHN CLINCH XN MR PARRY

PN451

You're the manager, group employee relations, for AGL Energy?‑‑‑Yes.

PN452

You've prepared a statement for these proceedings?‑‑‑Yes.

PN453

Do you have a copy of that before you?‑‑‑Yes, I do.

PN454

Paragraph 31C refers to a conference on 8 July. Do you want to delete the 8?‑‑‑Yes.

PN455

Subject to that, are the contents of that statement true and correct?‑‑‑Yes, they are.

PN456

I tender that statement.

PN457

MR SLEVIN: Before it's marked, Commissioner, I have a number of objections. They relate to paragraphs 7 to 14.

PN458

THE COMMISSIONER: Seven?

PN459

MR SLEVIN: To 14.

PN460

THE COMMISSIONER: To 14, yes.

PN461

MR SLEVIN: The first objection is to the double hearsay that appears in paragraph 7 where Mr Clinch tells the Commission what Mr James told him that Mr Walsh said.

PN462

THE COMMISSIONER: Before you go any further, Mr Clinch, would you mind stepping out for a moment just until this matter is dealt with?‑‑‑Okay.

PN463

I'm not sure where it's going so it might be preferable that you do that. You're on oath and I'd ask that you don't discuss your evidence. Thank you.

<THE WITNESS WITHDREW [12.17 PM]

PN464

THE COMMISSIONER: Thank you. So paragraph 7 is hearsay.

*** MICHAEL JOHN CLINCH XN MR PARRY

PN465

MR SLEVIN: That's right. So the objection is hearsay. Well, the rules of evidence don't apply but rules of fairness do. I can't cross-examine Mr Clinch about those comments, and indeed it's important - it's relied upon by the respondent as some indication of non‑genuineness, but I'm unable to cross‑examine this witness on those comments and the context of those comments that may be relevant to any finding as to (a) whether the words were said and (b) what they meant, and so it's on that basis that I say it's unfair that that double hearsay be accepted.

PN466

The objection to the rest of the material is just on relevance. It doesn't appear in the submissions provided by the respondent that there is a matter at issue relating to this question of whether there was an overtime ban or not. It's denied by the CFMEU there was ever an overtime ban. It has always been denied. All this material leads to is evidence that there was an allegation of an overtime ban and it was denied and it was never resolved because the application about that overtime ban was ultimately withdrawn.

PN467

THE COMMISSIONER: Was an interim order issued in that matter?

PN468

MR SLEVIN: There was, but on the basis that there was no time to deal with the matter within the statutory time‑frame. It was an interim order under section 420 so on that basis there were no findings of the Commission in relation to it and the matter was simply withdrawn on that basis. So there's no ‑ ‑ ‑

PN469

THE COMMISSIONER: So you're objecting to that one on the grounds of relevance, are you?

PN470

MR SLEVIN: Relevance, that's right.

PN471

THE COMMISSIONER: Given that - well, I presume you're suggesting that it can have no substantive bearing on any decision that I make.

PN472

MR SLEVIN: That's right.

PN473

THE COMMISSIONER: I take it from there then you might be suggesting that the only relevance might be to provide some sort of historical background.

PN474

MR SLEVIN: I don't know what - I don't think it even - it's not relevant to any background to anything either, Commissioner.

PN475

THE COMMISSIONER: All right. Okay, I understand that submission.

PN476

MR SLEVIN: Yes, thank you.

PN477

THE COMMISSIONER: They're the only two issues you have?

PN478

MR SLEVIN: So they're the objections, and they encompass those paragraphs and annexures MC1 to MC4 which are attached by those paragraphs.

PN479

THE COMMISSIONER: All right. Thank you. Mr Parry?

PN480

MR PARRY: If the Commission pleases. Firstly, we start with paragraph 7. That is technically, for the debate, not double hearsay, it's simply hearsay. Clearly it's hearsay. He's saying what somebody else has had. It would be a rare time in this Commission where something is excluded on the grounds that it's hearsay. The rules of evidence don't apply.

PN481

Ultimately it's a matter of weight. We would agree that since it can't be cross-examined on it can't be given significant weight. Indeed, of itself it's not the most significant factor in the range of factors, however we say it does give a background. It is a lead‑in to the events that occurred that are on the public record. We say the sort of background there that's set out is not ‑ ‑ ‑

PN482

THE COMMISSIONER: Have you moved from that one? Are you going to ‑ ‑ ‑

PN483

MR PARRY: Yes, I'm moving on to that one - I'm moving on from that one.

PN484

THE COMMISSIONER: From that one. All right, yes.

PN485

MR PARRY: But then it goes on to events that aren't contested. We're not dealing with contested events, we're dealing with events that are said to have occurred.

PN486

THE COMMISSIONER: What is the relevance, though, of the interim order? The facts that led to it and the fact that it occurred, what's the relevance of that to the decision that I'm being asked to make, or the findings I can make.

PN487

MR PARRY: The relevance is this, that is, it may be said by our opponents that there has been absolutely no industrial action over this period of the bargaining. We would want to be able to say, well, there is a debate about that. We're entitled to have material before you that could influence submissions that might be made, and if a submission were to be made, "Well, there's been no industrial action," we'd want to be going, "Well, there's a debate." We're not saying the evidence is strong. It's there to show, number 1, that there has been an issue. The Commission's seen fit to exercise its powers to make an order and clearly the Commission ‑ ‑ ‑

PN488

THE COMMISSIONER: I can't take much from this, though.

PN489

MR PARRY: You can't take a lot, no.

PN490

THE COMMISSIONER: There's not much I can take from this. I accept that on 10 July there was an order issued, but beyond that there's not really much I can take from it.

PN491

MR PARRY: There's not a lot, but we say there's a little bit, and it would be called on in the event that there was some suggestion that there had been - nothing occurred. In a way, it would be a curious position if we came along and didn't tell the Commission about the making of an order under section 418. It's on the record. It's a public thing. It would be indeed curious that the Commission wasn't aware that there had been such an order made.

PN492

THE COMMISSIONER: Which is why I suggested earlier to Mr Slevin that perhaps it's there for some sort of historical context and in endeavour to ensure that there was no suggestion that the Commission was somehow being misled by way of what's not said rather than what's said, but beyond that I'm not sure that I can take much from it. Now, I hear what you say. It's put there in the event that there's a submission that there was no industrial action taken during this period. Have I got you - is that what you're putting to me? Perhaps it's something that I should ask Mr Slevin.

PN493

MR PARRY: Well, we haven't put it - to be fair to us ‑ ‑ ‑

PN494

THE COMMISSIONER: Yes.

PN495

MR PARRY: ‑ ‑ ‑ we haven't put - all we've done is put in, as we're entitled to do in these proceedings, hearsay comments, and then everything from paragraph 8 to 13 on is factual. It's pure fact.

PN496

THE COMMISSIONER: Dealing with paragraph 7 first - I'll hear from Mr Slevin if I need to, but my inclination there is to say, well, you know, you will address me on the weight I should attribute to that sort of hearsay given that you're quite right, you can't cross-examine and it stands for itself, so what I can make of it is questionable and you'll address me on that in submissions.

PN497

MR PARRY: Yes.

PN498

MR SLEVIN: I accept that, Commissioner, and I note my learned friend made the concession that not significant weight could be put on it in any event.

PN499

THE COMMISSIONER: I think on that basis we don't need to take that much further and waste any more time. The remaining paragraphs I'm mindful to suggest that again there's not much I can take from them. You can make submissions on ‑ ‑ ‑

PN500

MR PARRY: Yes. Can I suggest that we make submissions on that, that depending on what people say ‑ ‑ ‑

PN501

THE COMMISSIONER: Rather than argue it ‑ ‑ ‑

PN502

MR PARRY: Yes.

PN503

THE COMMISSIONER: Depending on how the rest of the afternoon goes.

PN504

MR PARRY: If the Commission pleases.

PN505

THE COMMISSIONER: Thank you. Before you get - I'm sorry, just one moment. Before you do that, so when the witness - when Mr Clinch does come back in, so there's no argument while he's in the witness box, do I take it then that minus that minor amendment to his statement that the exhibit - I'll mark it as an exhibit and then you'll make submissions on the content. Is that ‑ ‑ ‑

PN506

MR PARRY: Yes. May I foreshadow that I was - before Mr Clinch comes back, the Commission will recall that Mr Dyke was asked in re-examination questions that in a way commenced with a transcript about 36 numbers and then sort of morphed into a more general answer about the numbering and how they were calculated and so forth and ‑ ‑ ‑

PN507

THE COMMISSIONER: Is this in terms of the potential loss of ‑ ‑ ‑

PN508

MR SLEVIN: The loss of ‑ ‑ ‑

PN509

MR PARRY: Potential loss of jobs.

PN510

THE COMMISSIONER: Loss of shifts and the like.

PN511

MR PARRY: Yes.

PN512

THE COMMISSIONER: Yes, I recall that.

PN513

MR PARRY: Mr Clinch has said in his statement in paragraph 44 that his comment the proposal could lead to 36 jobs being cut is not correct and is misleading. I would want to simply ask Mr Clinch, "You've heard the evidence of Mr Dyke. Does that affect your answer that it's misleading?" I'd propose doing that.

PN514

THE COMMISSIONER: Mr Slevin, do you have a problem with that? I don't foresee a problem.

PN515

MR SLEVIN: No objection to that question.

PN516

THE COMMISSIONER: All right. In that case we can bring Mr Clinch in, thank you.

<MICHAEL JOHN CLINCH, RECALLED [12.27 PM]

EXAMINATION-IN-CHIEF BY MR PARRY, CONTINUING [12.27 PM]

PN517

THE COMMISSIONER: Thank you, Mr Clinch.

PN518

MR PARRY: Mr Clinch, subject to that amendment I took you to are the contents of that statement true and correct?‑‑‑Yes, they are.

PN519

I tender that statement.

PN520

THE COMMISSIONER: Thank you. I'll mark the witness statement of Michael John Clinch as amended in the witness box comprising 70 paragraphs together with annexures - I'll mark that R4.

EXHIBIT #R4 WITNESS STATEMENT OF MICHAEL JOHN CLINCH AS AMENDED, COMPRISING 70 PARAGRAPHS AND ANNEXURES

*** MICHAEL JOHN CLINCH XN MR PARRY

PN521

MR PARRY: If the Commissioner pleases. Now, with the leave of the Commission, Mr Clinch, your statement in paragraph 44 refers to a comment that Mr Dyke made about 36 jobs being cut not being correct and misleading and Mr Dyke has given evidence today and was in the box where you are and he was asked about a media interview he gave and how the numbers came up, how the 36 - or I'm not sure they added up to 36, but how some of the numbers worked out. Now, you've heard that evidence. You were sitting in the Commission. What do you say about his evidence now - I'm sorry, what do you say about your evidence that his evidence about 36 jobs being cut is not correct and is misleading? What do you say in respect to his evidence?‑‑‑I'd say it's incorrect and it is misleading.

PN522

Why?‑‑‑There's actually - there's only 10 jobs being lost, and they're in the power station, and that's through natural attrition or voluntary departure. They're the only roles that are disappearing from the site. If I dig down into some of the detail, Mr Dyke gave an example of the two by 12 shift work area in the mine and on the stacker, how it was going from four to two. The overall numbers, that is correct, it will go from four to two, so that's the number of people on one piece of plant, however the overall numbers in the mine remain the same, so there is no change. So I think we're getting confused with numbers of people on pieces of plant versus the overall numbers. So in the mine there is no change. In the one by seven example which is in the mine PSG group Mr Dyke gave an example that there was - I think he said estimate, around eight sort of jobs that are disappearing. The number of people in the PSG is the same as what it is today, and that's 24. So there's no change to the overall numbers. In the maintenance areas there's a change between the linkages between maintenance and planning, and in those areas, particularly in the station, we're actually putting more people on, because that group is now going to look after the coal delivery plant. So I think there's either one or two tradesmen - I think it's two additional tradesmen, that will be put on into those areas. In the warehouse area, yes, the goal is to go from two sort of separate warehouses to one overall site one and there will be some reallocation of duties. People will be relocated to some other duties to ensure that structure is there and those positions remain whole. It's my understanding that Commissioner Roe actually referenced that as part of his recommendation. The other overlying factor is as part of all of this there is a no compulsory redundancy provision. So quite clearly no one is going to lose their job other than through voluntary departure or natural attrition in the station area. So the overall loss is 10, it's definitely not 36.

PN523

Now, this explanation you've given today, is that the first time you've ever given it?‑‑‑No, that's not the case.

*** MICHAEL JOHN CLINCH XN MR PARRY

PN524

When previously?‑‑‑Well, we've explained - during bargaining we've explained that there certainly isn't 36 job losses. In fact, we even went out as far as we had some internal communication - I think it's in one of my attachments - that actually went out to the workforce that said the only job losses are the 10 in the power station. There are no other job losses. It's an untruth."

PN525

I have nothing further of Mr Clinch, if the Commission pleases.

PN526

THE COMMISSIONER: Thank you.

CROSS-EXAMINATION BY MR SLEVIN [12.32 PM]

PN527

MR SLEVIN: That last communication you referred to, Mr Clinch, is that the one attached to your statement?‑‑‑What tab number is that please?

PN528

Unfortunately - it's towards the end. It's in response to the media comments, I think it was.

PN529

MR PARRY: 23.

PN530

MR SLEVIN: Thank you?‑‑‑Yes, that's the statement.

PN531

That's the one you're referring to?‑‑‑Yes.

PN532

Thank you. I'll just show you a document, Mr Clinch. You refer in your statement to the section 240 application that AGL made to the Commission. I've just handed you a document. Is that a - that's a copy of that application. Can you confirm that for me?‑‑‑Yes, that's the case.

PN533

And I just note when you made that application you identified the six bargaining reps as being respondents to the application, didn't you?‑‑‑What paragraph? If you could help me here - if we do that in ‑ ‑ ‑

PN534

Well, have a look at the first page. You'll see halfway down there's the respondent's ‑ ‑ ‑?‑‑‑Yes. Yes, I've got that. Yes, we do.

PN535

And if you go over the next page you'll see, starting with Mr Proctor, down - Mr Baldwin, the others, they're the bargaining reps?‑‑‑Yes, that's the case. Thank you.

*** MICHAEL JOHN CLINCH XXN MR SLEVIN

PN536

All right. Now, in preparing this application was it prepared for you by your lawyers?‑‑‑Yes.

PN537

And it was prepared on the basis that those bargain reps were entitled to receive a copy of the application. They were properly respondents to an application such as this?‑‑‑They were provided - as the application lays out, they were listed and provided with a copy of it, yes.

PN538

All right. Now, the course of bargaining was described on page 3 there and then the course of bargaining from February 26 onwards is described at page 4, then you describe the matters - the company describes the matters in dispute on page 5 under the heading 3. Now, at 3.1 you describe the intention of the party, of the company. At 3.2 you describe the participation of the newly appointed bargaining representatives and you tell the Commission that the newly appointed bargaining representatives now represent well over half of the workforce, that that's a significant change in representation of the workforce, and despite numerous attempts AGL has not been able to secure a meeting with the newly appointed bargaining reps to hear directly from them about how they see their role in bargaining. So that was a matter that you wanted the Commission to deal with. That's correct, isn't it, and that's the purpose of bringing that to the Commission's attention through this document. Do you agree with that?‑‑‑The 240 application was made to progress bargaining and we required assistance from the Commission, yes

PN539

And indeed at 3.5 - or 3.4, you say, "For all these reasons AGL considers that there is a need for a fresh approach to the negotiations and it is for this reason that it has made this application." So you were asking the Commission, weren't you, to give you some assistance in the bargaining. You wanted some assistance to get a fresh approach to the bargaining, didn't you?‑‑‑Yes, that's correct.

PN540

Yes, and you describe a hope there that - "AGL hopes that with the assistance of the Commission it can find a practical way to move negotiations with the newly appointed bargaining representatives, the CFMEU and other members of the SBU(?)(12.36.52) forward. That was your hope at the time the application was filed, wasn't it?‑‑‑Yes. We wanted to progress bargaining, that's correct.

PN541

And you describe in your statement that there followed a number of conferences in the Commission under the auspices of this application?‑‑‑Yes, that's correct.

PN542

All right, and it's the case, isn't it, that your hopes were met? Your hopes that with the assistance of the Commission there could be a practical way to move negotiations forward, that hope was met by that process that you entered into, wasn't it?‑‑‑Well, I'm not exactly sure what you mean by our hope was met.

*** MICHAEL JOHN CLINCH XXN MR SLEVIN

PN543

Well, let me take the word "hope" out of it and just put the proposition to you that with the assistance of the Commission there was a practical way found to move negotiations forward. That's correct, isn't it?‑‑‑That's correct, yes.

PN544

Yes, thank you. If we go to that process which you describe, and I won't go to it in your statement, that process was by way of a number of conferences with members of the Commission. That's right, isn't it?‑‑‑Yes, that's correct. Commissioner Gregory and Commissioner Roe.

PN545

THE COMMISSIONER: Mr Slevin, I'm sorry, I don't mean to interrupt, but I will. Do you want something with this document or ‑ ‑ ‑

PN546

MR SLEVIN: Yes, I tender that, Commissioner.

PN547

THE COMMISSIONER: All right, thank you. I'll mark that A4 - A5, apologies.

EXHIBIT #A5 COPY OF SECTION 240 APPLICATION

PN548

MR SLEVIN: Participating in those meetings were the unions who were bargaining reps. That's right, isn't it?‑‑‑The default bargaining reps, yes. The unions, yes.

PN549

Yes, that's right, and the independent bargaining reps, the six identified as respondents to the application. They participated as will, didn't they?‑‑‑Well, it's not fair to say the six participated on all occasions.

PN550

Did they attend?‑‑‑The six did not attend on every occasion.

PN551

All right. So there were some occasions when they didn't attend but the meetings went ahead anyway?‑‑‑Yes, the meetings went ahead, and there was a number of them that were on extended leave.

PN552

Yes. So some didn't turn up but the meetings went ahead and the bargaining progressed in the way we've just described, didn't it?‑‑‑Yes, it did.

PN553

The fact that they were on leave didn't stop the bargaining progressing, did it?‑‑‑No, it didn't. It progressed, yes.

*** MICHAEL JOHN CLINCH XXN MR SLEVIN

PN554

No one insisted, "You can't have another meeting because I'm on leave next week. You're going to have to work around me." No one did that, did they?‑‑‑No one did that, because on the majority of occasions ‑ ‑ ‑

PN555

I just want you to answer my questions. I don't want you to elaborate?‑‑‑Okay.

PN556

The answer is no, no one did that. That's the case?‑‑‑Okay, thank you.

PN557

You were in the hearing room earlier, Mr Clinch, weren't you, when Mr Dyke was asked about the addresses for the bargaining reps in March? I wonder if the witness might be shown exhibits R1 and R2 please? I'm indebted to my friends. Thank you. You'll see exhibit R1 is an email from Mr Rennets to Mr Dyke and that's a request from Mr Dyke that he forward CFMEU letters to the bargaining reps for their information. So that gives the context, and then there's a response from Mr Dyke saying that he did not have the details for these people and would appreciate AGL providing SBU representatives with their contact details so as to enable their inclusion in bargaining related communications. Now, did the ‑ ‑ ‑?‑‑‑Sorry, which - sorry, I'm confused.

PN558

I'm sorry?‑‑‑Are we looking at R1?

PN559

R1, and then the response is R2?‑‑‑Okay. So I hadn't got to R2, so you've moved on a bit.

PN560

I should have taken you to the second document. I'll give you a chance. It's the third paragraph?‑‑‑Okay.

PN561

Do you know if Mr Rennets did that, provided the contact details to the SBU of those reps?‑‑‑I don't know.

PN562

Now, there seems to be some criticism of Mr Dyke for not having those contact details. It's the case, isn't it, that the company has those contact details of those reps and had them at that time. That's the case, isn't it?‑‑‑I really don't know, and I can elaborate if you'd like me to.

PN563

Well, if we go back to exhibit R1, the list of gentlemen that's provided there, they're all employees of the company, aren't they?‑‑‑Yes, there's no question about that. They're employees of the company.

*** MICHAEL JOHN CLINCH XXN MR SLEVIN

PN564

And the company has contact details for its employees, doesn't it?‑‑‑It depends what you're referring to as contact details.

PN565

All right. Well, contact details sufficient to forward on communications about the bargaining, an email, an work email address, for example?‑‑‑Well, there's an issue with that and a number of employees refuse to use their work email address so it's highly likely that we didn't have an email address for these people.

PN566

Do you know?‑‑‑I'd be very confident.

PN567

You'd be confident that you don't have an email address for Mr Baldwin?‑‑‑No. I'll rephrase that.

PN568

Are you confident that you don't have an email address for Mr Proctor? Are you?‑‑‑I am confident we don't have an AGL work email address for these employees because they refuse to use it.

PN569

These particular five employees?‑‑‑It may not be all - may not be the entire five, but there's definitely a core group, a large group of employees, that refuse to use the AGL email system.

PN570

Do you know if you have an AGL email address for Mr Baldwin or not?‑‑‑I don't.

PN571

Do you know whether there's an AGL email address for Mr Proctor?‑‑‑Don't know.

PN572

Do you know whether there's an AGL email address for Mr Speeha(?)?‑‑‑No.

PN573

Mr Richards?‑‑‑Don't know.

PN574

Mr Wilson? How does AGL contact those five employees when they want to provide them with any communications?‑‑‑Well, usually through their leadership arrangements. So it will go through their leader, whether it's a team leader, whether it's a supervisor, will contact them that way, or depending on what the circumstances are, yes, we have home addresses. There's no question about that. So they would be the mechanisms.

*** MICHAEL JOHN CLINCH XXN MR SLEVIN

PN575

So you have means of contacting each of those five persons, don't you?‑‑‑We have private home addresses but we don't necessarily have a work email address for them.

PN576

So at the very least you had a contact detail in the form of a home address by which you could forward on bargaining information to those five people?‑‑‑Yes, we definitely had a home address, no question about that.

PN577

Thank you. Do you still have the section 240 application in front of you, exhibit A4?‑‑‑That's correct, yes.

PN578

Do you see on the second page ‑ ‑ ‑?‑‑‑Yes.

PN579

‑ ‑ ‑ it appears that AGL had detailed contacts for them by the time the section 240 application was filed, doesn't it?‑‑‑It does appear so, yes.

PN580

In your statement you provide two lists, MC5 and MC10. I gather from the context of your statement, although it's not clear and so I want to clarify it, that the list in MC10 is the list of employees who have appointed the independent bargaining reps. Is that the current list that the company has?‑‑‑Yes, that's correct.

PN581

So in terms of identifying employees who have appointed independent reps to represent them in the bargaining the company's in a position to provide any ballot agent with this list to assist in determining the role of voters. There's nothing to stop you providing that list, and that's the list as you understand it of those who have appointed those reps?‑‑‑Yes, that's the list.

PN582

In your statement you make reference to employees living 45 minutes away from Traralgon. It's the case, isn't it, though, that your operations are only 10 minutes or so away from Traralgon? That's the case, isn't it?‑‑‑Yes. The operation is only, yes, 10 minutes.

PN583

So if the - and in terms of those who live 45 minutes or more away it's not clear from your statement whether you're identifying those who would be on the ballot of voters or whether you're just talking generally about the workforce. Was is it? Have you gone through the exercise of trying to identify who would be on the role of voters and seeing how far away from Traralgon they live?‑‑‑No, we haven't, but I am aware that there's definitely one person that lives in Maffra who would be part of that ballot.

*** MICHAEL JOHN CLINCH XXN MR SLEVIN

PN584

All right, and is that someone who is rostered on during the ballot period that's proposed? Have you gone that far?‑‑‑No, I haven't gone that far. To actually - to cover off the roster cycle you actually need between 9 and 10 days so that everyone has turned up for work.

PN585

So the ballot period I think is a five-day attendance ballot. Have you tried to identify who on the other four days would actually have to come in from home rather than come in from work to vote? Have you done that exercise?‑‑‑No. That exercise hasn't been undertaken.

PN586

All right. So you just don't know what impact the fact that one of these people who you do know will have on their capacity to attend the ballot. Whether they need to drive 45 minutes from home or not, I think it comes down to. You have to acknowledge rather than nod. So you just don't know, do you? That's the case, isn't it?‑‑‑We haven't done the analysis of those that are rostered on and rostered off. That's correct.

PN587

So you can't identify any one individual who will be affected by where they live in terms of how far they'll need to travel to attend the ballot, can you?‑‑‑No. The analysis hasn't been done.

PN588

No further questions, Commissioner.

PN589

THE COMMISSIONER: Thank you.

RE-EXAMINATION BY MR PARRY [12.50 PM]

PN590

MR PARRY: If the Commission pleases. Mr Clinch, you were asked about the bargaining and progressing and the circumstances of some of these bargaining representatives being absent and that no one insisted it didn't go ahead. Remember that?‑‑‑Yes.

PN591

You wanted to say a bit more, I think, about why that didn't take place and my learned friend just wanted the yes and the no. Why didn't that affect whether a meeting went ahead or not?‑‑‑Because on a number of the bargaining meetings the independents would just sit behind the CFMEU and say, "We support what the CFMEU are saying," and that's what would happen. So whether they were there or not was irrelevant, because what would normally happen is Greg Hardy would usually take the lead from a CFMEU perspective and the others would fall in behind on 90 per cent of occasions.

*** MICHAEL JOHN CLINCH RXN MR PARRY

PN592

Now, you were asked about the contact details and my learned friend took you to correspondence in 12 March and 16 March and Mr Dyke saying he didn't - couldn't contact these people or didn't have contact details and then you were handed a document which was the application made on 8 April, some three weeks later. There are some email addresses which are manifestly not AGL email addresses - for example, Mr Baldwin and Mr Speeha and Mr Richards. Do you know what happened between the correspondence then and how these email addresses were obtained?‑‑‑No, I don't.

PN593

No. I have nothing further of Mr Clinch.

PN594

THE COMMISSIONER: Thank you. Thank you, Mr Clinch, for your evidence.

<THE WITNESS WITHDREW [12.52 PM]

PN595

MR PARRY: If the Commission pleases, that's the evidence for the respondent.

PN596

THE COMMISSIONER: Thank you, Mr Parry.

PN597

MR PARRY: I noted the Commission was looking at submissions and expedited transcript.

PN598

THE COMMISSIONER: Yes.

PN599

MR PARRY: Does the Commission have any preference for the order of transcript - sorry, the order of submission.

PN600

THE COMMISSIONER: The order of transcript is ASAP.

PN601

MR PARRY: Yes. The order of submissions and when you would want us to provide our material.

PN602

THE COMMISSIONER: Assuming that a hearing can take place Wednesday afternoon, say at 2 pm, is what I'm looking at ‑ ‑ ‑

PN603

MR PARRY: We'll cooperate in that.

PN604

THE COMMISSIONER: Thank you. Mr Slevin, is that ‑ ‑ ‑

*** MICHAEL JOHN CLINCH RXN MR PARRY

PN605

MR SLEVIN: Yes, Commissioner.

PN606

THE COMMISSIONER: Thank you, Mr Slevin. Assuming that happens, assuming that the transcript is available by lunchtime tomorrow, which is what I'm hoping will occur, then I'm not terribly fussed about the order. It might be something that you have something to say about, in fact. I would appreciate though receiving submissions say by close of business Tuesday so that I have an opportunity to see them over the course of - before the hearing on Wednesday afternoon. I have a short matter on Wednesday morning.

PN607

MR PARRY: If the Commission would excuse me. I think ‑ ‑ ‑

PN608

THE COMMISSIONER: If I could just add this. I would appreciate the outlines pointing me to those areas in the evidence both from today and the written material that's been provided to me, what you'd like me to consider in particular and what findings you'd wish me to make in relation to that.

PN609

MR PARRY: Well, I think we can both provide our submissions by Tuesday COB.

PN610

THE COMMISSIONER: All right, and if someone - depending on how it goes, if you wish to have a right of reply on the day, Mr Slevin, then that ‑ ‑ ‑

PN611

MR PARRY: Well, I assume Mr Slevin will go first, I'll reply and then he'll have a right of reply to ‑ ‑ ‑

PN612

THE COMMISSIONER: Reply - is what I'm assuming, but that's ‑ ‑ ‑

PN613

MR PARRY: What I would assume.

PN614

MR SLEVIN: Thank you.

PN615

MR PARRY: If the Commission pleases.

PN616

THE COMMISSIONER: All right, thank you. On that basis I will adjourn until 2 pm on Wednesday. Thank you.

ADJOURNED UNTIL WEDNESDAY, 12 OCTOBER 2016 [12.55 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 SUBMISSIONS OF CFMEU.................................................................... PN30

EXHIBIT #A1 AFFIDAVIT OF ERROL RAYMOND HODDER SWORN 27/09/2016 PN38

EXHIBIT #A2 FURTHER AFFIDAVIT OF ERROL RAYMOND HODDER SWORN 04/10/2016................................................................................................................. PN40

MFI #2 AMENDED DRAFT DIRECTIONS AND AMENDED DRAFT ORDER FILED 04/10/2016................................................................................................................. PN51

MFI #3 BUNDLE OF STATEMENTS AND RECOMMENDATIONS.......... PN79

GEOFFREY WAYNE DYKE, AFFIRMED....................................................... PN82

EXAMINATION-IN-CHIEF BY MR SLEVIN................................................... PN82

EXHIBIT #A3 WITNESS STATEMENT OF GEOFFREY WAYNE DYKE DATED 26/09/2016................................................................................................................................... PN95

EXHIBIT #A4 FURTHER WITNESS STATEMENT OF GEOFFREY WAYNE DYKE DATED 04/10/2016................................................................................................ PN103

CROSS-EXAMINATION BY MR PARRY...................................................... PN104

EXHIBIT #R1 COPY OF DOCUMENT HEADED "GH96".......................... PN240

EXHIBIT #R2 LETTER DATED 12 OCTOBER WHICH MR DYKE IDENTIFIED AS DATED 12/03/2016................................................................................................ PN262

THE WITNESS WITHDREW............................................................................ PN317

GEOFFREY WAYNE DYKE, RECALLED.................................................... PN319

CROSS-EXAMINATION BY MR PARRY, CONTINUING......................... PN319

RE-EXAMINATION BY MR SLEVIN............................................................. PN369

THE WITNESS WITHDREW............................................................................ PN392

EXHIBIT #R3 WITNESS STATEMENT OF KATE ELIZABETH LEHANE DATED 29 SEPTEMBER 2016............................................................................................... PN446

MICHAEL JOHN CLINCH, SWORN............................................................... PN448

EXAMINATION-IN-CHIEF BY MR PARRY................................................. PN448

THE WITNESS WITHDREW............................................................................ PN463

MICHAEL JOHN CLINCH, RECALLED....................................................... PN516

EXAMINATION-IN-CHIEF BY MR PARRY, CONTINUING.................... PN516

EXHIBIT #R4 WITNESS STATEMENT OF MICHAEL JOHN CLINCH AS AMENDED, COMPRISING 70 PARAGRAPHS AND ANNEXURES............................... PN520

CROSS-EXAMINATION BY MR SLEVIN...................................................... PN526

EXHIBIT #A5 COPY OF SECTION 240 APPLICATION............................. PN547

RE-EXAMINATION BY MR PARRY.............................................................. PN589

THE WITNESS WITHDREW............................................................................ PN594


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