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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1054093
DEPUTY PRESIDENT BINET
AG2016/3592
s.185 - Application for approval of a single-enterprise agreement
Application by BGC Contracting Pty Ltd
(AG2016/3592)
Adelaide
9.15 AM, WEDNESDAY, 19 OCTOBER 2016
PN1
THE DEPUTY PRESIDENT: Good morning everybody.
PN2
MR FLETCHER: Good morning, Deputy President.
PN3
THE DEPUTY PRESIDENT: I'm sorry for the delay in starting. I was just getting accustomed to different changes. Now, we have up first today opening - what was our agreed start, Mr Fletcher?
PN4
MR FLETCHER: Deputy President, this is our application. I'm on this side of the room because it's a force of habit.
PN5
THE DEPUTY PRESIDENT: Confusing me.
PN6
MR FLETCHER: It's what I'm used to. I'm used to sitting on this side so it's instinctively what I did but I think the other reason for it is that there has been communications with your Chambers and I understand that the position that's been agreed between the various parties that for logistical reasons we'll hear from the - what's been described as the union lay witnesses so the employees this morning, then we'll hear from the union officials and then we'll present our case.
PN7
Now, in terms of openings I am in your hands but I would have thought that it's logical for perhaps the - given the sort of topsy-turvy nature of the way that things have been heard that you've got an application before you. It's self-evident on what the application is. A number of objections have been raised. I think probably - and Mr Boncardo, who I think will be going first this morning with his three witnesses has indicated that there's a number of points that won't be pressed.
PN8
I think given that you've got an application before you, there is objections that have been made, some of those objections won't be pressed and then some will and there will be evidence in support of those objections. I think probably the most logical way of dealing with it will be for you to hear from Mr Boncardo first about he wishes to elicit his evidence and I think we'd save any detailed submissions for closing, rather than taking up a lot of time this morning with an opening that then is necessarily repeated in closing.
PN9
I am conscious that we have only got two days. This agreement has been in the works - well, filed at the end of June, the 20 June, and we're now in October so I am conscious that we don't waste our two days that we have got here. So I think rather than having lengthy opening from all parties I think it's probably best if we understand from Mr Boncardo whether there's any deviations on how he wishes to proceed and then we get straight into the evidence.
PN10
THE DEPUTY PRESIDENT: Okay, thank you, Mr Fletcher. What I would like initially is just for each of counsel just to - as Mr Fletcher said the application is what it is - if each counsel could just have a very brief opening about what points you are still pressing so that we are on the same page as in relation to what evidence we need to get through in the next two days.
PN11
SPEAKER: Excuse me, madam Deputy President, I don't know whether your microphone is working.
PN12
THE DEPUTY PRESIDENT: It's not loud enough? Usually I'm too loud. Is that better?
PN13
MR FLETCHER: I can hear your Honour but I'm actually not sure if any of the microphones are working but in any event I can hear you loud and clear. In terms of - - -
PN14
THE DEPUTY PRESIDENT: Thanks. If anyone gives me grief you'll be able to hear me loud and clear.
PN15
MR BONCARDO: Yes, your Honour. Yes, you can blame me for that. Your Honour, in terms of the points that I am no longer pressing and I have alerted my friend to these this morning and I am happy to put these on the record. After perusing the material produced under the notices to produce by the applicant I am no longer relying on a significant chunk of misleading/misinformation case. And if I can perhaps give the Commission some paragraph references to my submissions which were filed, I think on the 2 September.
PN16
I am no longer pressing paragraphs 15, 16, and 17. Paragraphs 20, 21 and 22, 23, 24, 25, 26, 27, 28, the conclusionary and introductory paragraphs your Honour will no doubt read those in light of the concessions that I have made in terms of the balance of the written submissions on the misleading misinformation case. I am also no longer pressing my contentions in respect to the application the better-off overall test being now instead of when the agreement was made. So to that effect I am no longer pressing paragraphs 35, 36 and 37 of the written submissions.
PN17
In relation to the points that I am intending to hang my hat on, your Honour, the first is a section 180(2) point, a failure by the application to take all reasonable steps to make available to employees a copy of the Mining Industry Award. The second point is one under section 180(5) pertaining to a failure by the applicant to take all reasonable steps to explain the agreement and the documents form part of the agreement to the employees.
PN18
The third prong relates to what I say are inherently uncertain terms of the agreement in respect to if you can call them pay increases - pay increases is under clause 7.3. The fourth point deals with the scheme that was employed by the applicant whereby this agreement and the voting on this agreement was coupled with the provision of individual common law of contracts. That point raises issues as to genuine agreement under section 188(c) of the Act.
PN19
And the final point and this is a point which has arisen in the last day or so after the provision by the applicant of additional witness material relates to a provision of misleading information in respect to the appointment of bargaining representatives. And that is a new point. It is a point that has, if you like, come to light in the last 48 hours flowing from evidence that my friend, Mr Fletcher put up.
PN20
And the final point is that the agreement does not pass the better off overall test so far as the Mining Industry Award is concerned. On that point your Honour has my written submissions dealing with discrete provisions of the agreement and the award. I have also made a list of three other provisions of the agreement which I say do not pass the better off overall test. I have put them into a one and a bit page document. I am happy to give that to your Honour and my friends now instead of waiting to the end.
PN21
The document your Honour has outlines three discrete provisions of the proposed agreement. They do not I say provide for terms and conditions better than Mining Industry Award and they in fact result in detriments to employees.
PN22
So those are the issues I hang my hat on your Honour. In terms of the proceedings today one housekeeping matter I should mention initially and I think there has been some email communications with your Honour's Chambers about this. Mr Geyer is unable to attend and I will not be calling him. So I intend to call first of all, Mr Whitlock, followed by Mr Bolitho and then Mr Swanbury.
PN23
Mr Fletcher has filed a statement from and I hope I am pronouncing this correctly - a Mr Ruwiza. Now that statement purportedly is in reply to Mr Geyer and Mr Whitlock's statements. There are elements of it which aren't in reply. I don't intend to take that point but there are matters in there that are new and that I have not seen before and I intend to elicit some very brief evidence-in-chief from Mr Bolitho and from Mr Whitlock dealing with some aspects of Mr Ruwiza's statement. I don't think that's going to take very much time and I have told my friend, Mr Fletcher, the broad outline of those questions.
PN24
THE DEPUTY PRESIDENT: Thank you. Mr Thomas is there - - -
PN25
MR THOMAS: Yes, thank you, your Honour. The objections that are obtained by the Mining Energy Division of CFMEU asked about point six of the submission that we sent to you. And briefly they go to three legs to the genuinely agreed issue. The first is for want of a better term - the KCL point - that is the applicant does not employ any employees who work in black coal mining.
PN26
The second point is we say that the applicant has failed to meet certain pre-approval steps and in particular sections 182 and 185 and thirdly that there are aspects of the agreement that are confusing and in that sense could not have been understood let alone genuinely agreed. There are those three points, your Honour, and in addition we also say that the agreement does not meet the better off overall test.
PN27
Our submission sets out a number of reasons for that. I have noticed in reading Mr Fletcher's points on that that two of the issues they have been on mixed functions and payment upon termination that we had raised at having a more closer inspection. We wouldn't press those as they are part of the incorporation of the award into the agreement.
PN28
THE DEPUTY PRESIDENT: Mixed functions and what was the other one?
PN29
MR THOMAS: Payment upon termination.
PN30
THE DEPUTY PRESIDENT: Okay.
PN31
MR THOMAS: I'll come to those in the summing-up. From the witness point of view we have Mr Wood, who as we speak should either be in Brisbane or not very far from there. I'd ask that he be in the Brisbane Commission at 10.00 o'clock our time here - half past 9.00 in Brisbane - and then he should be brought to wherever he is in the Commission and hopefully we see that he's there, your Honour, as soon as the existing witness is finished we could slot Mr Wood in. He can be cross-examined and his evidence sworn of course and he can then depart. I do not have any questions to ask him in chief.
PN32
THE DEPUTY PRESIDENT: Just cross.
PN33
MR THOMAS: So it's just a matter of cross-examination. The statements that you have before you aren't signed and I noted an email from your Chambers last week that they should be - I guess the difficulty we had there was that one is it's not my usual practise I've got to say that presumably members of the Commission are adopt different practises.
PN34
The other reason why, your Honour, is that the statements were dated and if Mr Wood was to sign them then they really would have been signed different to the date set out in the statement and I don't know whether that was the appropriate thing to do but he will swear to them on oath here and they will have - you know - the full power of the law in terms of sworn statements.
PN35
THE DEPUTY PRESIDENT: It's just that if they're sworn and they're not required for cross-examination then there's no requirement to bring the witness in. So if you file signed sworn statements then and they're not required for cross-examination then it saves the need for witnesses to appear.
PN36
MR THOMAS: Thank you, your Honour.
PN37
THE DEPUTY PRESIDENT: Thank you.
PN38
MR THOMAS: That is all I have at this point.
PN39
THE DEPUTY PRESIDENT: Thank you. Mr Hanson?
PN40
MR HANSON: It's not working - I'll project my voice. Good morning, madam Deputy President. To a large extent we rest on our written submissions except to, I guess, firstly say the way that this matter is being run - the contest over - we're just supporting the CFMEU's case in relation to the aspect of the boot. Our analysis agrees with the CFMEU's that no amount of undertakings - well, that the amount of undertakings that would be required to pass the boot test would, in fact, significantly change the structure and the content of the agreement some of the relevant authorities which have already been established. We say that the proposed application that you're considering is fatally flawed and should not be certified simply on that basis alone.
PN41
Secondly, we won't be making submissions on the boot - we'll be leaving that to Mr Boncardo. The second thing that we just point out is that as was clearly stated and reinforced in the decision in Falcon Mining Pty Ltd [2016] FWC, Volume 5315, at paragraph 149 it reinforces the point and makes it abundantly clear that the onus - the evidential burden rests with the applicant in satisfying the Fair Work Commission that all the pre-requisite steps have been fulfilled properly, that the employees have genuinely agreed and our argument is that section 186 to subsection (a) in terms of genuine agreement cannot be accepted that there is genuine agreement because we say there was misrepresentation by the employer to the employee's covered - proposed to be covered by the agreement, there was undue influence in terms of contravention of section 345 - 344 of the Act - misrepresentations in breach of section 345.
PN42
We also say that the agreement shouldn't be certified because it does - it cannot be said when it's revealed how the negotiations were conducted that it was done so in good faith and therefore section 187(2) criteria has not been established and we will argue that section 228(e) and (f) have not been complied with in terms of recognising and dealing with union bargaining agents. Our argument will be and our evidence will be that the applicant knew they had members of our union in their workforce. They knew who that representative because of prior history of contacts but he was deliberately excluded from the process until he did something about it. So that falls under recognising bargaining agents.
PN43
We will also tender evidence to show that when AMWU information challenging the employee's version of the effectiveness of common law contracts in preserving wages and conditions was challenged and by an information from the AMWU was sent to our delegate who subsequently posted it up in his - he will tell you - posted it up in the crib huts.
PN44
Our evidence will be that that material was taken down and he was chatted to by a superior and warned against putting such material up or distributing via his work email. So obviously there are aspects of section 180 that we will be saying weren't complied with, particularly given the challenges of how you - because of the changed scope of the agreement, the challenges of having different work sites across different borders and we will say that simply even in Western Australia no bargaining agents were appointed.
PN45
And, your Honour, one of the things that has become evident to me from materials provided by the applicant and I will be exploring this with his witnesses is that an attempt prior to commencing bargaining for this agreement it appears that there was an attempt to alter the current - vary the current agreement to the extent - or the current agreements - to the extent that employees were asked to take a two percent pay cut.
PN46
You will hear evidence and it will be interesting to hear what the witnesses say at the cross-examination but according to their own material which alerted me to on - and I can tell you where that - I'll wait to the time - but the fact remains that it's become clear recently that there was a failed attempt to vary the current agreement and what transpired after that was, of course, changing the scope for the agreement and taking a different tact after the workers expressed an intention or expressed their rejection of such a proposal at the ballot box.
PN47
And of course that raises questions as to why did they change their mind when a different tact was taken. That goes to being conned, duped, not afforded - bargaining agents not afforded their proper rights, being excluded and they're being no genuine consultation or bargaining process at all.
PN48
And so a number of those matters go to not complying with the definition of what is genuine agreement as defined by section 188 of the Act. At this point, your Honour, it might be useful before I close to tender evidence that was provided to me under a confidentiality arrangement. I don't - - -
PN49
MR FLETCHER: If I may deputy President?
PN50
THE DEPUTY PRESIDENT: You can.
PN51
MR FLETCHER: I'm not going to allow for that to happen without there being - - -
PN52
THE DEPUTY PRESIDENT: At least not in opening.
PN53
MR FLETCHER: Yes.
PN54
MR HANSON: Okay.
PN55
MR FLETCHER: Nice try.
PN56
THE DEPUTY PRESIDENT: Let's all play nicely in opening.
PN57
MR HANSON: Okay. But it is my intent simply to tender the evidence without comment. My friends all know what that evidence is. I don't intend to directly - obviously I intend to comply with the confidentiality undertaking. But, essentially, I intend to tender it nor or at another appropriate time. For madam Deputy President, your eyes, so that you have before you evidence of the break-up of the voting over the different sites which will lead into when you hear other evidence about the different sites, the different cultures, the different levels of unionisation and - you know - we will assert no bargaining agents in certain locations being appointed. Your Honour will be able to draw the dots without - I'm confident that your Honour will be able to draw the dots without me making any comment.
PN58
So, we will call our witnesses after Mr Boncardo's. Our employees that are here today are Ryan Wake, and Greg Fiebig, plan to appear this morning and then Mr McMillan who is a union official this afternoon. And I'm taking instructions from Mr McMillan. The other thing that I would mention as a house-keeping measure is that we all agreed that the gallery should be clear of all witnesses other than the ones who are instructing. I think that's the agreed position of all parties. Thank you.
PN59
MR FLETCHER: Deputy President, just one point of clarification if I may? Mr Boncardo has given a list of a number of paragraphs that the CFMEU is not pressing in its objection to the application. I just want to be clear - it wasn't completely clear from what was said by the AMWU that they obviously rely on the CFMEU's submissions. I just want to be clear that they don't press the same point that the CFMEU is not pressing. The reason I require clarification on that is that when it comes time to cross-examine the AMWU witnesses I will save some time if I don't need to take them to cross-examination on those points. So if I can perhaps get that - if you could, perhaps deputy President, confirm that that would be appreciated.
PN60
MR THOMAS: We confirm that.
PN61
MR HANSON: Yes, thank you deputy President, I'm appearing today with Scott Martin who is the union organiser for the sites. He is instructing in regards to this matter and is in the gallery. It has already been put as a housekeeping matter that that's been agreed between the parties. Secondly, there's a secondary housekeeping matter. The applicant's documents in regards to this matter were received by the Australian Workers' Union Whyalla Office in advance of the Australian Workers' Union Adelaide Office where I am located. As a result I received those and had a short time in which to peruse those as provided.
PN62
As a result there is no written submission at this time from the Australian Workers' Union. Subject to that I have had Mr Boncardo's - from the CFMEU's - written submissions. I note what has been put by Mr Boncardo further to those this morning and in regards to that the AWU to a large extent relies upon Mr Boncardo's submissions, in particular to his submissions of section 180.
PN63
We note the submissions of the AMWU in regards to section 187 and subsequently 228 being there. It is notable in the F18 provided by the AWU to this matter and further to this statement of Mr Martin in regards to this matter that he makes certain assertions in regards to the submissions of the AMWU in that. We continue to rely upon those submissions which may be somewhat different to what Mr Boncardo would initially put. So I put my friend on notice that we still do rely upon those.
PN64
Further to that the AWU will only be calling Mr Martin in regards to this matter. I believe that that will in all likelihood be either be late today or early tomorrow we'd think at best. I don't intend at this time to add any - - -
PA ANNOUNCEMENT - EMERGENCY EVACUATION SYSTEM TEST [9.49 AM]
PN65
THE DEPUTY PRESIDENT: I got a matter effectively conciliated last week in Perth because we had an evacuation and we weren't going until the deal was done.
PN66
MR HANSON: Are they going to announce that it's over? I'd bet as soon as I start talking again they will. And in that regard we'll call Mr Martin. I don't intend on - at this stage - leading any great evidence-in-chief though. He's largely being called for cross-examination. His evidence in this matter is signed and has been provided. However, since he is likely to be the last witness called in this matter it may be somewhat we have defined the issues by then and I think we will be able to scout him through fairly quickly. So that's the opening in regards to the Australian Workers' Union. If you have any questions I'll be happy to answer.
PN67
MR FLETCHER: One point of clarification. I apologise if I didn't hear this correctly. Is Mr Hanson saying that the AWU is pressing the submission that CFMEU is not pressing or not?
PN68
THE DEPUTY PRESIDENT: That's what I thought.
PN69
MR HANSON: Yes, we are.
PN70
MR FLETCHER: That creates a bit of a problem Deputy President because the AWU hasn't got any evidence in relation to those issues so I don't quite understand how they can press the argument when there's no evidence to support it. And I think leave it out but hanging is just going to take up unnecessary time. It's not quite clear why the AWU is pressing that.
PN71
MR HANSON: Well, at this stage it forms part of the F18 in regards to the application of this matter - is also in - somewhat the evidence of Mr Martin in regards to this matter. It is unfortunate that written submissions could not further be provided in regards to that. However, as I have outlined there was a limited amount of time in which the AWU had to peruse the applicant's documents in regards to this matter.
PN72
If it can perhaps ease my friend's mind somewhat as I have outlined Mr Martin is the last witness being called in regards to this matter. It is possibly by that stage the matter may be fully clarified and if my friend has any concern in regards to that I may be able to make a retraction of that matter at that time prior to Mr Martin's evidence, however, at this stage, with the limited amount of time I have had to peruse the applicant's documents in regards to this matter I have to leave it hanging it out there as my friend has put, prior to me being able to, I guess, go through with the matter as we progress.
PN73
THE DEPUTY PRESIDENT: I suppose my difficulty is if those submissions are struck out in effect from the CFMEU's submissions, I don't have any submissions before me in that regard. So you're going to have to make submissions which you may want to jot down and tender tomorrow morning so that we're all clear about what it is you're pressing.
PN74
MR HANSON: Yes. My apologies to the Commission in regards to that but I have had a very short period of time with what is a substantial amount of information from the applicant.
PN75
THE DEPUTY PRESIDENT: I just can't make a decision about something if I don't have it before me.
PN76
MR HANSON: I understand, yes.
PN77
THE DEPUTY PRESIDENT: Okay, thank you. Is it an appropriate point now to have the witness or to have the people in the room?
PN78
MR THOMAS: Your Honour, I received a text from Mr Wood saying he is there in Brisbane. I don't know the technology operates but he's ready to called assuming the video links are operable.
PN79
THE DEPUTY PRESIDENT: Does anyone have an objection to Mr Wood?
PN80
MR FLETCHER: Not at all, deputy President. Probably while the video links are being established there is two more housekeeping matters that I wanted to raise before we hear from the witnesses. The first that there's a bundle - a tender bundle - a numbered tender bundle which I would seek to tender. And I have provided copies to the objectors. The folder that I seek to hand up I have provided a copy to your Associate. It's titled "Chronological bundle of documents produced" and what it does is arranges in chronological order the material that was produced under the notice to produce and as you can see we've got - the applicant is extremely satisfied with the details that it went into in terms of the process of providing information backwards and forwards throughout the negotiation process. So given that there was a request for the production of documents those documents have been produced. The documents are not in front of you until they're tendered and it's my intention in a number of areas to take the witnesses to specific documents. What I'm seeking to do is tender this numbered bundle which should speed things up in terms of putting particular documents to witnesses. So I just seek to tender that and I'll be guided by you as to the appropriate time to do that.
PN81
THE DEPUTY PRESIDENT: Do you want it marked as an exhibit now?
PN82
MR FLETCHER: Yes, I think that would be good.
PN83
THE DEPUTY PRESIDENT: Is there any objection to it being entered as a bundle or is there a requirement to do it via a witness?
PN84
MR BONCARDO: Your Honour, I don't have any objection to material being before you. I mean to say two things about some aspects of that material. Part of it includes unknown, unnamed person's diary notes and those notes aren't provided to your Honour by a witness who can give them any sort of context at all.
PN85
THE DEPUTY PRESIDENT: Yes, that's - - -
PN86
MR BONCARDO: No doubt your Honour will attribute to those notes the weight that they deserve which is little or any. Secondly, there are notes which are in the form of speaking notes which I think my friend will say were distributed to relevant managers of the applicant to speak to at certain presentations. I say simply that your Honour will just take them as notes as to what was distributed as opposed to documents that purport to show what actually was said at those presentations.
PN87
THE DEPUTY PRESIDENT: Is there anything that you say should be excluded from the bundle as exhibits and should be tendered via a witness?
PN88
MR BONCARDO: No.
PN89
THE DEPUTY PRESIDENT: Or are you happy for them to be tendered - - -
PN90
MR BONCARDO: I'm happy for it to go up just with those two caveats.
PN91
THE DEPUTY PRESIDENT: Okay. Does anyone else have anything they want to say?
PN92
MR HANSON: Yes, your Honour, we have the same view but I guess without obstructing things at this stage we'd simply put ourselves in your hands in terms of assessment of what is real compelling evidence. I mean there are contemporaneous notes that could have a high level of evidential worth to my mind the use of speaking notes or the production of speaking notes is a bit like saying we've got a policy on something which is often said but when you dig deeper you find that policy just gathers dust on someone.
PN93
So there are a number of areas within or a number of documents. If your Honour wanted to exclude it we could take time out and go through them one by one but as my friend has said I guess without wanting to slow things down we are in your hands as to what probity should be put on the material that has been tendered. And if your Honour is minded to place an exhibit number on that I see no reason why I can't tender the other evidence that was produced to us on discovery. I don't know what my friend's objection is but it seems to me that there's a bit of a double standard here.
PN94
THE DEPUTY PRESIDENT: I think because Mr Fletcher is proposing that this is uncontested and I think we've moved on from opening at this stage. We're into housekeeping. I am happy to give the parties the opportunity over the luncheon break to determine whether there's any particular material in this which they say ought not be included, admitted directly into evidence and requires some review to identify whether what weight it should be attached to. So I will refrain from marking the document at this stage and after luncheon break - if there's anything that you say ought to be separated out - I'd rather have a bundle that's non-contested and then I can work off that bundle and then have the contested matters separately and we can deal with those as they arise in the course of submissions.
PN95
Do you want to make your submissions in relation to the introduction of the document which you're seeking to tender now or when that comes up in relation to your evidence and submissions?
PN96
MR HANSON: Yes, your Honour, I got on my feet because I'm probably a bit older than most of the other people at the Bar table but I cannot hear you.
PN97
THE DEPUTY PRESIDENT: Okay.
PN98
MR HANSON: We need the mics working.
PN99
THE DEPUTY PRESIDENT: I will endeavour speak louder. I've got three sons so I'm used to yelling.
PN100
MR HANSON: Well, I've got three daughters and they all yell at me.
PN101
THE DEPUTY PRESIDENT: Right. Well, it's reverse to my house. So what I was getting to did you want to try and tender your document and have that argument about whether that gets admitted now or did you want to wait till your submissions and when your witness - you're happy to leave it?
PN102
MR HANSON: We'll leave it and - - -
PN103
THE DEPUTY PRESIDENT: Mr Wood now?
PN104
MR HANSON: Yes.
PN105
THE DEPUTY PRESIDENT: Thank you.
PN106
MR HANSON: Yes.
PN107
THE DEPUTY PRESIDENT: Now, do we need to have witnesses out of the room at this point?
PN108
MR FLETCHER: Yes, I think we do, deputy President and one other - - -
PN109
THE DEPUTY PRESIDENT: Housekeeping?
PN110
MR FLETCHER: Sorry. There's quite a bit of housekeeping. One other - aside from tendering the bundle - one other issue that is important. The unions are maintaining certain objections based on the agreement not passing the better of overall test. As you would be aware, deputy President those issues around the satisfaction of better off overall test can be addressed by an employer giving an undertaking.
PN111
Now, there is a signed undertaking that was provided at the request of the Member Assist Team at the very early stages of these proceedings and we - at the time the view that was expressed to the Member Assist Team was that the applicant didn't really believe that the undertaking was necessary but was happy to give the undertaking notwithstanding. Now, I'm conscious of this and authority of the Commission which talks about if there is an undertaking to be given that an employer must give it their best shot so to speak - to quote a song - and hit them with our best shot. And I'm conscious that I don't want to miss that window should that be required.
PN112
Now if you are of the view that the undertaking needs to be provided and I'm not conceding that necessarily an undertaking is necessary but I want to be on notice about providing an undertaking out of an abundance of caution at the appropriate time so that we're not criticised for providing our undertaking too late.
PN113
So I wanted to address is do you expect an undertaking to be made at the completion of the objector's case, or should we provide an undertaking post haste based on being put on notice? I mean I appreciate that we have been given a document which I haven't had a chance to review in detail at this stage which has got what appear to be three further alleged better off overall test issues. My question, deputy President, is do we need to - if we are going to respond with an undertaking - do we need to do it mid-hearing or is it appropriate to give it, after having considered what the objectors have to say, and prior to putting our case? Or can we put it at the end of our case, having heard a preliminary view from you?
PN114
THE DEPUTY PRESIDENT: I'll give you my preliminary view and then you can - it might save you having to speak.
PN115
MR BONCARDO: I think that's exactly - yes. Yes.
PN116
THE DEPUTY PRESIDENT: What I think makes sense is that you make it after the applicants have finished putting their case so that you can address - endeavour to address any things that they now - that they continue to press or that aren't resolved as a result of their witness evidence but you do it before you put your case so that they have an opportunity to make any submissions at the end of your - at the final end of the hearing - if they say it doesn't address - still doesn't address - - -
PN117
MR BONCARDO: Your Honour, can I just say something about that?
PN118
THE DEPUTY PRESIDENT: Yes.
PN119
MR BONCARDO: I think jurisdictionally your Honour needs to form the view that an agreement does not satisfy the boot test. Only then does the capacity arise for an employer to give undertakings. So far as we are concerned it seems to us that your Honour ought hear all the evidence and all the submissions, make a determination and if your Honour is of the view that the agreement does not pass the boot test and it is open to you to request undertakings then and for my friend to put undertakings for then it seems to me that my friend's boxing at shadows and providing undertakings - - -
PN120
MR FLETCHER: I'm happy to agree that I'm boxing at shadows and it's out of an abundance of caution and if the course of action that Mr Boncardo is proposing - if the deputy President - if you're happy with that deputy President then I don't have any objection. I just don't want to fall foul of some procedural - I'm extremely sensitive about - in light of some of the decisions on unrelated issues such as notices of employee representational rights I'm extremely sensitive about making sure that I do not miss the opportunity. But if what Mr Boncardo is proposing is that you hear everything, you decide that there is a better off overall test issue and then we be given an opportunity to satisfy that with an undertaking then I don't have any objection to that approach.
PN121
MR BONCARDO: Your Honour I have no intention of being kind or charitable to my friend. I'm simply - I'm basing my proposition on section 190(1) of the Fair Work Act which requires explicitly that your Honour needs to have a concern that an agreement doesn't meet the boot test prior to approving it or not approving it with undertakings and therefore seeking undertakings firstly from the applicant employer.
PN122
THE DEPUTY PRESIDENT: My approach to industrial matters is that agreed outcomes are always the most effective and what might - why I had proposed to do it at the point it was is so that if it was the case that the parties could reach an undertaking that satisfied them then that is better than Mr Fletcher guessing it what undertaking might satisfy the parties. What I am conscious of is giving you sufficient time to review the undertakings so that you can make an informed decision about whether they - whether you're satisfied they meet your concerns about the boot because ultimately it's your members that are going to be bound by the agreement.
PN123
So I am happy to leave it to the end of the hearing but it doesn't give you or your colleagues at the Bar table the opportunity to have discussions with Mr Fletcher about any modifications to the undertaking he proposes which might then satisfy your concerns.
PN124
MR BONCARDO: I understand what your Honour is saying.
PN125
THE DEPUTY PRESIDENT: Okay. So what's your preference? Because I'm only doing it to facilitate you the opportunity to have something put into the undertakings.
PN126
MR BONCARDO: Your Honour has perhaps some more optimism than I do about whether or not any undertakings are going to be acceptable to the union parties but I don't want a situation to arise where we or your Honour engages in a process which doesn't conform strictly to section 190. In terms of us having input in respect to any proposed undertakings that so far as I am concerned is something that can be done on the papers. It doesn't need to be done today and tomorrow.
PN127
If your Honour reaches a conclusion in your Honour's decision that the agreement can be approved with undertakings my friend offers those undertakings we then can be heard on them - - -
PN128
THE DEPUTY PRESIDENT: Separately.
PN129
MR BONCARDO: Separately. And your Honour may well reach the view that the undertakings provided or required to be provided are far too elaborate to fall with section 193 which may make it otiose as to whether or not undertakings need to be commented on by parties anyway.
PN130
THE DEPUTY PRESIDENT: I'm just conscious of the period of time in which this agreement has taken approval. If we adopt that course of action you need to wait till a decision is written and then make submissions in relation to the undertaking. So I would be keen to try and get that sorted out while we've got all the parties.
PN131
MR BONCARDO: Your Honour's heard my submission. I'm in your Honour's hands.
PN132
MR FLETCHER: Deputy President, if I might? In order to assist I might - we might confer with the objectors over the course of the day. Obviously we've got a lunch break and possibly a morning tea break. I'm not sure if you're planning to run through until lunch or whether you wanted to have a morning tea break.
PN133
THE DEPUTY PRESIDENT: No play luncheon is good.
PN134
MR FLETCHER: No play lunch - fair enough.
PN135
THE DEPUTY PRESIDENT: Through to lunch.
PN136
MR FLETCHER: Yes, that's good. It might be worth us having some conferral which I think can happen in parallel with the hearing and we're quite happy to occasion that to speed things up.
PN137
THE DEPUTY PRESIDENT: Okay, thank you. Do you have any other housekeeping, Mr Fletcher?
PN138
MR FLETCHER: No. And I apologise for the large amount of housekeeping I did this morning.
PN139
THE DEPUTY PRESIDENT: A very untidy house Mr Fletcher.
PN140
MR FLETCHER: Yes, that's right.
PN141
MR THOMAS: Your Honour, just to - this is on the point of undertakings - the issue we have been discussing was raised in the appeal decision of the CFMEU v Sparta Mining Services 10 October 2016, FWCFB 7057. I remember because we raised that very issue and I'm trying to find it. If I can find it where we raised it - but I'm trying to find where the Full Bench actually addressed it.
PN142
THE DEPUTY PRESIDENT: Do you have a copy of that you can tender or not?
PN143
MR THOMAS: I thought we emailed it and made available to the parties last week.
PN144
MR HANSON: You did.
PN145
MR FLETCHER: What's the case?
PN146
MR THOMAS: I can - I do have a copy here I can give to your Honour.
PN147
THE DEPUTY PRESIDENT: Thank you.
PN148
MR THOMAS: And I would refer, your Honour - I've just found it - - -
PN149
THE DEPUTY PRESIDENT: Thank you.
PN150
MR THOMAS: And what is - well, it's paragraph 15 and it's point three and in that the Full Bench says - "The Commissioner erred by relying on paragraph five of the undertakings with respect to the issue of compliance with section 182 because the Commissioner never identified any concern that this element of the generally agreed requirement of section 186(2)(a) had not been satisfied. The jurisdictional prerequisite in section 191(b) for the application of section 190 to this issue was not fulfilled."
PN151
I just raise that as a point of consideration when you're thinking about this, your Honour.
PN152
MR FLETCHER: If it assists and I think - and I will take some time to consider the Sparta Mining which was provided or tendered by the - or provided by the Mining Division of the CFMEU I believe. And I think - is Mr Thomas saying that - I want to be clear that the section 180(2) issues around genuine agreement we're quite happy to look at the undertaking in the context of pure - what might be described as pure better off overall test issues rather than a way of attempting to fix a position that's been put in terms of a non-conformance with the genuinely agreed requirement under section 180(2). If I am completely off-beam in relation to that it would be good to know but if the CFMEU - both divisions - are happy and the other unions are happy with the undertaking issue being separated from the genuinely agreed issue I think that will either - that will - you can't give undertakings about genuine agreement I think is the point.
PN153
MR THOMAS: Your Honour - I think strictly speaking you probably can give an undertaking of a genuinely agreed matter only where it's possible to give one of course.
PN154
MR FLETCHER: That's right.
PN155
MR THOMAS: And we would say that with respect to 182 you cannot cure it with an undertaking and I make that opening comment because the concerns that the Commission would have as in the sense of section 191(b) concerns that the agreement doesn't meet the requirements of section 186 and 187, and of course, within section 186 is the issue of genuinely agreed. So strictly speaking it's probably possible but our submission is that in this case no such undertakings possibly cure an action that has already occurred and that being the - what we say is the breach of section 182 and 185. So it's probably very academic in that sense, your Honour.
PN156
THE DEPUTY PRESIDENT: Okay.
PN157
MR THOMAS: We see the boot is only going to those issues where the agreement contains terms and conditions that are less beneficial than the terms and conditions in the award.
PN158
THE DEPUTY PRESIDENT: Yes.
PN159
MR THOMAS: Thank you.
PN160
THE DEPUTY PRESIDENT: Okay. Mr Thomas, did you have any further housekeeping that you wanted to raise?
PN161
MR THOMAS: No, your Honour.
PN162
THE DEPUTY PRESIDENT: Mr Boncardo?
PN163
MR BONCARDO: Nothing further, your Honour.
PN164
THE DEPUTY PRESIDENT: Mr Hanson?
PN165
MR HANSON: No, your Honour.
PN166
THE DEPUTY PRESIDENT: Mr Hardie?
PN167
MR HARDIE: No.
PN168
THE DEPUTY PRESIDENT: No? Nothing. Okay. Okay, poor Mr Woods has been sitting there waiting patiently. Okay, so do you want to swear Mr Wood in? Is everyone at the Bar table happy with who's left in the room?
PN169
MR BONCARDO: Yes, your Honour.
PN170
THE DEPUTY PRESIDENT: Yes.
PN171
MR THOMAS: I would have been happy if they all stayed your Honour.
PN172
THE ASSOCIATE: Mr Wood, this is Crystal, the deputy President's Associate. Can you hear me?
PN173
MR WOOD: Yes, I can.
PN174
THE ASSOCIATE: Please state your full name and address.
MR WOOD: Gary Norman Wood, (address supplied).
<GARY NORMAN WOOD, AFFIRMED [10.19 AM]
EXAMINATION-IN-CHIEF BY MR THOMAS [10.20 AM]
PN176
MR THOMAS: Thank you, Mr Wood, your name is Gary Wood and your address is (address supplied) in the State of Western Australia?‑‑‑Yes, it is.
PN177
Have you prepared a witness statement dated the 2 September 2016 in these proceedings?‑‑‑Yes, I can.
*** GARY NORMAN WOOD XN MR THOMAS
PN178
Do you have a copy of that statement with you?‑‑‑Yes, I do.
PN179
Does that statement comprise 15 paragraphs?‑‑‑Yes, it does.
PN180
And three attachments?‑‑‑Yes.
PN181
Okay. Do you say that to the best of your information, knowledge and belief that the matters dealt with in your witness statement are true and correct?‑‑‑Yes, I do.
PN182
Okay. I'll tender that formally, your Honour.
THE DEPUTY PRESIDENT: Okay. So I will mark that A1.
EXHIBIT #A1 WITNESS STATEMENT OF GARY NORMAN WOOD DATED 2 SEPTEMBER 2016
PN184
MR THOMAS: And did you prepare a further witness statement dated the 27 September in these proceedings?‑‑‑Yes, I did.
PN185
You did prepare one. You said yes you came - you did prepare a statement?‑‑‑Oh, yes I did - yes.
PN186
Yes. And the same with the earlier statement you used the same terminology?‑‑‑Yes.
PN187
Yes. Is that statement comprised of 24 paragraphs?‑‑‑Yes, I confirm 24 paragraphs.
PN188
And attachments "A" to "K"?‑‑‑Yes, I can. Yes.
PN189
Is that - - -?‑‑‑Or I do.
PN190
Yes. Do you say that to the best of your information, knowledge and belief that the matters dealt with in your witness statement are true and correct?‑‑‑Yes, they are.
*** GARY NORMAN WOOD XN MR THOMAS
PN191
I tender that as well, your Honour.
THE DEPUTY PRESIDENT: Exhibit A2.
EXHIBIT #A2 WITNESS STATEMENT OF GARY NORMAN WOOD DATED 27 SEPTEMBER 2016
PN193
MR THOMAS: That is our evidence for Mr Wood.
THE DEPUTY PRESIDENT: Thank you.
CROSS-EXAMINATION BY MR FLETCHER [10.22 AM]
PN195
MR FLETCHER: Thank you, Mr Wood. I won't be very long and I appreciate you making time to give your evidence by video. I understand you're at a conference in Queensland and we appreciate you being in attendance?‑‑‑Mr Wood, would you agree that - in both of your statements that you filed and that have just been read - that the distinction you are focusing on is what might be described as an industrial regulation distinction between the Industrial Relations regulation of black coal mining work and hard rock mining work. Would you agree with that proposition?‑‑‑In which paragraphs are you referring to?
PN196
Well, I'm actually referring to the fact that in your statement you don't - you refer to both awards. You refer to - do you agree with that?‑‑‑Yes, both awards are referred in detail there.
PN197
Yes. And in paragraph 15 you talk about the historical difference between the coverage of those awards for coal mining and what you call mining. That's at paragraph 15 of your supplementary statement?‑‑‑Yes.
PN198
And there you talk about - and then you go on in 17 to talk about coal industry tribunals and in paragraph 18 about an industry long service scheme. In 19 you talk about long service. In 20 you talk about Queensland Occupational Health and Safety Legislation. Would you agree that all of those paragraphs go to what might be described as the Industrial Relations distinction as in the regulation of Industrial Relations in the black coal industry. Sorry, in the performance of work in black coal?‑‑‑I'd say that they are part of but not the entirety. You know the Industrial Regulations were in fact covered off in the coal mining - sorry, the Mining Industry Act and Occupational Health and Safety which is not an industrial instrument as such.
*** GARY NORMAN WOOD XXN MR FLETCHER
PN199
But it goes to the regulation of that work from an occupational health and safety point of view?‑‑‑Yes.
PN200
Would you agree that the skills that are used by workers who are engaged in black coal mining work are readily transferrable to hard rock mining work?‑‑‑No. Not in the context you put it.
PN201
Well, I just asked you if the skills are readily transferrable. Are you saying that the skills are not readily transferrable?‑‑‑Well, I think when you're talking - the industry - we don't know whether - I don't know whether you're talking - - -
PN202
No, I didn't say "industry" - - -?‑‑‑ - - - it may have been underground.
PN203
I didn't say "industry", Mr Wood. I was talking about work being performed?‑‑‑Yes. The skills are for what aspect?
PN204
Well, let's focus on open-cut to start with. So attached to your second or supplementary statement is a copy of the Black Coal Mining Industry Award and in Schedule "A" which is at page 34 there's a reference to production and engineering employees and if you move on a couple of pages at page 36 there's a reference to open cut coal mines?‑‑‑Yes.
PN205
Now, would you agree that truck operation for example - the operation of a truck on a black coal mining operation, the skills required to drive that truck are readily transferrable to a hard rock mining operation?‑‑‑I would agree they are to the extent - not so much for an underground hard rock mining - so they're not completely - they're not like for like. If you put and you're comparing them.
PN206
So the skills in open cut mining are quite transferrable, aren't they, because what you're doing is - - -?‑‑‑Yes.
PN207
- - - you're removing rock from the ground. They're not black. In hard rock mining they're not black rocks. In coal mining they are black rocks. Black hole mining they're black rocks. And in open cut the similarities are quite obvious. You've got drill and blast, would you agree with that?‑‑‑Yes, drill and blast.
PN208
And haulage, would you agree with that?‑‑‑Haulage - to a large degree, yes - there's an adjustment in that regard. Yes.
PN209
Yes?‑‑‑You know different sort of dumping procedures and so on.
*** GARY NORMAN WOOD XXN MR FLETCHER
PN210
But still that haulage element similar with - - -?‑‑‑Oh, look with training you can, yes.
PN211
Yes. And operation of shovels, scrapers and excavators?‑‑‑Look, I think people can adapt but there is certainly a lot of geographical differences in the way you work a face for example and the material movement in the interburden with the coal mining sectors.
PN212
But those differences don't necessarily go to the skills that you bring with you to the project, do they? You adapt in the same way
that you might work in a gold mine or a
- - -?‑‑‑No, I don't. No, it wouldn't be insurmountable. There'd be similarities in the skills.
PN213
Yes. And would you agree that there are - you haven't said anything about the industry as such. Would you agree that in your two statements you've talked about - or you've used the word "industry" in the sense that it's used in the Black Coal Mining Industry Award. That's the context in which you're referring to and "industry"?‑‑‑In the way as a representative and having worked in the industry and I refer to the coal industry when I say "industry".
PN214
Yes?‑‑‑Yes, and I have worked there 11 years in the underground and four years in the open cut.
PN215
And your focus is on industry from an award perspective. Do you accept that mining contractors might view mining as being an industry - and I'm not talking in an industrial regulations sense so not how terms and conditions of employment are set but in the sense of where companies might operate. Do you accept that companies might view mining as an overall industry, which is made up of many different types of mining?
PN216
MR THOMAS: Sorry, I've got to object to that. How is Mr Wood to know what is in the minds of contractors, your Honour? It's not a question he can answer.
PN217
MR FLETCHER: That's okay. I'll take another - I'll withdraw that. I'll perhaps put it in a different way. In your experience, Mr Wood, are you aware of contractors who operate on both - so, same contractor operating at different mines, one of which might be a black coal mine and one of which might be a hard rock mine?‑‑‑Well, I can only work - looking at the coal industry and look there may be but I couldn't point my finger at it.
*** GARY NORMAN WOOD XXN MR FLETCHER
PN218
Okay. In South Australia, in your initial statement I think you refer to the fact that there are no black coal mines - it's paragraph 14 of your first statement?‑‑‑Yes.
PN219
You say there are no black coal mines - it's paragraph 14 of your first statement?‑‑‑Yes.
PN220
You say "There are no black coal mines in South Australia and as such the BCMIA does not cover employees in that State." Do you accept that - sorry, can you confirm for me that there was a black coal - a thermal black coal mining operation in South Australia called Leigh Creek. Are you familiar with that operation?‑‑‑I'm familiar with the name going back a few years, yes.
PN221
And that operation is not far from Whyalla. Would you agree with that?‑‑‑I'm not going to disagree. I'm not sure. I don't know much about the geographics of South Australia.
PN222
And back to my point before it would be quite possible for employees who had the skills that we talked about before in open-cut mining who perhaps were working at Leigh Creek which is now closed down I believe to take their skills in open-cut mining, as it were, to Whyalla where they could perform work in iron ore?‑‑‑I think it's mostly going that way it'd be easier.
PN223
So it would be easier from black coal mining to iron ore mining?‑‑‑Yes, with appropriate training and update on legislation and so on.
PN224
Thank you. I have no further questions.
PN225
THE DEPUTY PRESIDENT: Thank you.
MR THOMAS: Just one or two, your Honour.
RE-EXAMINATION BY MR THOMAS [10.33 AM]
PN227
MR THOMAS: Your Honour, Mr Wood - the applicant made reference to skills. Would an employee who worked in open-cut mining in hard rock mining be able to transfer those skills to an underground coal mine?‑‑‑Not in Western Australia here at the moment because there's no working underground coal mine but they're a completely different set of skills for the underground in particular. I did work underground and - you know - there's continuous miners and different methods of mining completely in the underground.
*** GARY NORMAN WOOD RXN MR THOMAS
PN228
And those different methods apply in the major States of New South Wales and Queensland?‑‑‑Sorry, what was the last bit?
PN229
Do those skills that apply in the underground you referred to in Western Australia and you referred to longwall mining et cetera, do they apply in the underground mines in the other States?‑‑‑Yes, they do.
PN230
Thank you. Could I just ask you about Leigh Creek. Do you have much knowledge of what was mined at the Leigh Creek Coal Mine and why?‑‑‑Memory recall is that it was a rather large mine and it closed some years ago. That's about the best knowledge I have of it.
PN231
You don't know what it supplied coal to?‑‑‑I think it may have been supplying coal to a power station.
PN232
Yes?‑‑‑But - you know - for our generation.
PN233
And to your knowledge does the Black Coal Mining Industry Award cover coal mining in conjunction with the power station?‑‑‑Well, all I know is that they are - I think they do - I think, but they're not covered by that award.
PN234
Yes, thank you. That's all I have, your Honour.
THE DEPUTY PRESIDENT: Thank you, Mr Wood. Does anyone - okay, Mr Wood, you are discharged from your oath. You can return to the Gold Coast?‑‑‑Thank you. Thank you.
<THE WITNESS WITHDREW [10.36 AM]
PN236
THE DEPUTY PRESIDENT: So is it Mr Whitlock happening?
PN237
MR BONCARDO: Mr Whitlock is being retrieved.
PN238
MR FLETCHER: Deputy President just before Mr Whitlock is called can we just request a very short adjournment? Perhaps 10 minutes. I just want to have a quick discussion with my colleagues if that's okay?
PN239
THE DEPUTY PRESIDENT: Certainly.
*** GARY NORMAN WOOD RXN MR THOMAS
SHORT ADJOURNMENT [10.37 AM]
RESUMED [10.49 AM]
PN240
THE DEPUTY PRESIDENT: Mr Boncardo?
PN241
MR BONCARDO: Your Honour, I call Scott Whitlock.
PN242
THE ASSOCIATE: Sir, please state your full name and address.
MR WHITLOCK: Scott Charles Whitlock, (address supplied).
<SCOTT CHARLES WHITLOCK, SWORN [10.50 AM]
EXAMINATION-IN-CHIEF BY MR BONCARDO [10.50 AM]
PN244
THE DEPUTY PRESIDENT: Thanks.
PN245
MR BONCARDO: So your name is Scott Whitlock?‑‑‑Yes.
PN246
You're an employee of BGC Contracting?‑‑‑Yes, I am.
PN247
You work it at its South Middleback Ranges operation?‑‑‑Yes, I do.
PN248
You're an operator, sir?‑‑‑Yes, I am.
PN249
What does being an operator involve?‑‑‑Driving dump trucks or maybe sometimes a dozer or a water cart.
PN250
So you've given a statement in these proceedings?‑‑‑Yes, I have.
PN251
It's a two-page statement of some 10 paragraphs?‑‑‑That is correct.
PN252
Sir, can I just take you to paragraph six very quickly?
PN253
THE DEPUTY PRESIDENT: Do you want that marked?
*** SCOTT CHARLES WHITLOCK XN MR BONCARDO
PN254
MR BONCARDO: In a moment, your Honour. So, there's a reference there to someone called Tariro. Is the person referred to as Tariro, Mr Tariro Ruwiza?‑‑‑Tariro, yes.
PN255
Thank you, sir. Your Honour, I tender Mr Whitlock's statement.
THE DEPUTY PRESIDENT: I'll mark that A3.
EXHIBIT #A3 WITNESS STATEMENT OF SCOTT CHARLES WHITLOCK
PN257
MR BONCARDO: Mr Whitlock, Mr Ruwiza has provided a statement in these proceedings in which he says, amongst other things, that a copy of the Mining Industry Award was so far as he is aware made available to work groups and crib huts at the South Middleback Ranges site where he worked. Now, sir, can you tell her Honour how many crib huts are located at the South Middleback Ranges site and what their names are?‑‑‑There'd be about five. We have the "Duke", "Duchess", the "Knights" - "Fixed Plant Knight" and I think that's about it. Yes.
PN258
Do you, in your role as an operator, attend a particular crib hut?‑‑‑Oh, sorry - the Chieftain, yes. I'm in the Chieftain.
PN259
The Chieftain is the big one?‑‑‑Yes.
PN260
THE DEPUTY PRESIDENT: Have you got your own?‑‑‑I've been changed. I was in the Duke - but recently.
PN261
MR BONCARDO: So, sir, is it the case that your particular position go to one particular crib hut?‑‑‑Yes, I go to the Chieftain Crib Hut.
PN262
And is that the case in respect to other workers? Do they have particular crib huts that they go to?‑‑‑Yes. We all have our own area of work.
PN263
So for instance at the Duchess crib hut would people who are operators like you go there?‑‑‑No. They would not.
PN264
Sir, did you ever see at any of the crib huts you attended - a copy of the Mining Industry Award?‑‑‑No, I haven't seen one.
*** SCOTT CHARLES WHITLOCK XN MR BONCARDO
PN265
Did anyone ever say anything to you to the effect that, "Oh, there's a copy of the Mining Industry Award at the Chieftain crib hut."?‑‑‑I have been told that there is one but I can't find one myself when I have looked.
PN266
That's the additional examination-in-chief, your Honour.
THE DEPUTY PRESIDENT: Thank you.
CROSS-EXAMINATION BY MR FLETCHER [10.54 AM]
PN268
MR FLETCHER: Mr Whitlock, I think you said that you are a dump truck and dozer operator is that correct?‑‑‑Yes.
PN269
Thank you. And you work at the South Middleback Ranges part of the project?‑‑‑Yes.
PN270
Or Iron Knob South Middleback Ranges?‑‑‑South Middleback Ranges.
PN271
Thank you. And in paragraph four of your statement you say that "I received correspondence from the Commission recently about this." Which is a reference to the application for the approval of the enterprise agreement which is the subject of the proceedings we have got today. You see where you've said that? You said, "I received correspondence from the Commission recently about this and something about the enterprise agreement relating to black coal mining work." Then you go on to say, "This was the first time I heard of black coal mining work being covered by the enterprise agreement." That's what you've said there?‑‑‑Yes.
PN272
And then you say, "It was not mentioned before the agreement was voted on." Is that right?‑‑‑Yes.
PN273
Now, did you attend one of the briefings that kicked off the enterprise bargaining process?
PN274
MR BONCARDO: I object to the question. One of the briefings? Which briefing?
PN275
MR FLETCHER: Okay, which briefing did you attend at the commencement of the enterprise bargaining process and on what date?‑‑‑The first one.
*** SCOTT CHARLES WHITLOCK XXN MR FLETCHER
PN276
Can you remember what date that was?‑‑‑No.
PN277
Can you remember a PowerPoint presentation being provided at that briefing?‑‑‑No.
PN278
So you can't remember the PowerPoint presentation at all?
---No.
PN279
So I just need to show the witness a document in the bundle. So I've got a copy here to hand to you if I can approach? So I'll just take you to page - there's big red numbers at the top of each page. I'll take you to page - sorry, 0034?‑‑‑Sorry what was that 0-2 - - -
PN280
0034 at page 34. There's big red numbers at the top of the page?‑‑‑Mining agreement renewal?
PN281
That's the one. It's a PowerPoint presentation. Does that refresh your memory about the presentation that was given at the commencement of the bargaining process? Do you remember that PowerPoint presentation being given by Greg Heylen, who's the CEO of BGC Contracting?‑‑‑No, I do not.
PN282
You don't remember it?‑‑‑No.
PN283
And you can see on page - can you see on page 36?‑‑‑Yes.
PN284
It says at the bottom there - can you see at the bottom of the page on page 36 it says, "Identify opportunities. We don't know how long this down-cycle will last. We need to look at other commodities, other sectors and nationally for new work." Does that part of the conversation or the presentation ring any bells?‑‑‑No.
PN285
MR BONCARDO: I object to the question. The question has got a premise in it that Mr Whitlock attended the presentation. He said he has no recollection of ever attending the presentations.
PN286
THE DEPUTY PRESIDENT: I thought he gave evidence that he attended a briefing and that his evidence was he doesn't remember a PowerPoint presentation at the briefing. Is that true?‑‑‑That is correct, your Honour.
*** SCOTT CHARLES WHITLOCK XXN MR FLETCHER
PN287
So, Mr Whitlock, if we can produce an attendance record that would show that you attended but you just can't remember what was said?‑‑‑Yes.
PN288
Okay, thank you. In paragraph six you say, "Before the agreement was voted on I attended meetings between management and workers about it. I recall these meetings were attended by a supervisor." Now, Mr Ruwiza - that's Tariro?‑‑‑Yes.
PN289
"Mr T" as he might also be called is not a supervisor is he?‑‑‑No.
PN290
No. So why did you write "supervisor" in your statement? And you didn't spell his name right either did you.
PN291
MR BONCARDO: I object to the question, your Honour. He's clarified. It's unnecessary to badger Mr Whitlock. He's clarified who he was referring to.
PN292
MR FLETCHER: You've said that he was your supervisor. That's not right? Do you know what Mr Ruwiza's role is?‑‑‑Mine manager.
PN293
Project manager perhaps?‑‑‑Yes.
PN294
Thank you. Now, in paragraph six you've got - you refer to the fact that you recall Tariro saying - and that's a reference to Mr Ruwiza - what you're on you'll stay on. That's a correct reference?‑‑‑Correct.
PN295
And then in the next paragraph you say, "I also remember being told by Tariro or Jason Ryan that we had to sign the contract otherwise we'd go backwards in our pay." Now, I just want to be clear - that reference to signing a contract - there we're talking about the contract that was issued to preserve your rates and conditions. Is that correct?‑‑‑Yes.
PN296
And that wasn't issued to you in a final form until the middle of the process leading up to the vote for the agreement. Is that correct? A final version of the preserved rates contract was offered to you or provided to you to accept just before the vote?‑‑‑The one that I had to sign and return?
PN297
Yes?‑‑‑I got that - I had to get another copy because I didn't have my original copy.
PN298
Yes. So when did you get your new copy?‑‑‑Probably a week before I signed it.
*** SCOTT CHARLES WHITLOCK XXN MR FLETCHER
PN299
And when was that?‑‑‑When it had to be handed in - I think it was - - -
PN300
The original - there was an original deadline I think of 31 August?‑‑‑It was before - probably a couple of days - - -
PN301
31 August?‑‑‑Yes. Just before the deadline.
PN302
Just before the first deadline. Or I think there was an extended deadline. Do you remember?‑‑‑The extended deadline.
PN303
The extended deadline. The extended deadline was the 31 August is that right?‑‑‑I think so.
PN304
Yes, so a couple of days before that. So the conversation in paragraph seven where you remember being told by Tariro and Jason Ryan we had to sign the contract because otherwise we'd go backwards in pay. That was after you'd received the contract but before you signed it. Is that right? So what I'm trying to establish is that the conversation that you refer to in paragraph six didn't happen at the exact same time as the conversation that you refer to at paragraph seven. Is that correct?‑‑‑Correct.
PN305
Yes. So the conversation you had in paragraph seven was considerably later and just before it was time to sign the contract?‑‑‑Yes, roughly. Yes.
PN306
And I put it to you that that wasn't exactly Mr Ruwiza said to you. What Mr Ruwiza said to you was that if you didn't sign the new contract the preserved conditions wouldn't apply to you. Is that an accurate representation of what he said to you in fact?‑‑‑Correct.
PN307
And what he was saying to you that if you didn't sign that you'd carry on on your current contract?‑‑‑And it was stated on that contract too.
PN308
Yes. That's right. So you would stay on your current contract. You wouldn't receive - because there were some additional benefits, bonus and some other things that were part of the preserved contract. Is that right?‑‑‑Well, the way I understood it - - -
PN309
Yes?‑‑‑I would go backwards in pay if I did not sign that contract that is why I signed the contract. That's the way it was told to me.
*** SCOTT CHARLES WHITLOCK XXN MR FLETCHER
PN310
But it was made clear that you'd remain on your current conditions?‑‑‑If I signed it.
PN311
But you would remain on your current conditions if you didn't sign it?‑‑‑No. It would not.
PN312
Well, I put it to you that when Mr Ruwiza explained that to you the way he explained it was that the preserved conditions would apply
and that if you didn't accept the contract - the preserved conditions would not apply - but that he didn't say that your existing
conditions in your existing contracts would no longer apply is that correct?
---No, that's not correct.
PN313
Is it possible that you were confused about what you were being told? Or that you don't remember accurately what you were told?‑‑‑No.
PN314
No further questions.
PN315
THE DEPUTY PRESIDENT: Thank you. Any other questions?
PN316
MR BONCARDO: Nothing arising, your Honour.
PN317
THE DEPUTY PRESIDENT: Thank you. Re-examination?
PN318
MR BONCARDO: No re-examining arising.
THE DEPUTY PRESIDENT: Thank you. You're discharged from the witness box?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [11.05 AM]
PN320
MR BONCARDO: Your Honour, I call Paul Bolitho.
PN321
THE DEPUTY PRESIDENT: Thank you.
PN322
THE ASSOCIATE: State your full name and address.
*** SCOTT CHARLES WHITLOCK XXN MR FLETCHER
MR BOLITHO: Paul Trevor Bolitho (address supplied).
<PAUL TREVOR BOLITHO, SWORN [11.05 AM]
EXAMINATION-IN-CHIEF BY MR BONCARDO [11.06 AM]
PN324
THE DEPUTY PRESIDENT: Thank you.
PN325
MR BONCARDO: Sir, your name is Paul Bolitho?‑‑‑That is correct.
PN326
And you are an employee of BGC Contracting?‑‑‑Yes.
PN327
And what job or role do you have in BGC Contracting?‑‑‑I'm an all-rounder in production.
PN328
A what position?‑‑‑An all-rounder in production.
PN329
Thank you, sir. Sir, you have provided a statement in these proceedings?‑‑‑Yes, I have.
PN330
And you have a copy of it with you there?‑‑‑Yes, I do.
PN331
And can you tell me how many pages it is?‑‑‑Two pages.
PN332
And paragraphs?‑‑‑Fourteen.
PN333
Sir, can I take you very briefly to the paragraph nine? The reference to paragraph nine to someone called Martin Spibey?‑‑‑Spibey, yes.
PN334
Spibey. Do you know what his position is with BGC Contracting?‑‑‑He was the - I believe the General Manager in Mining - I think that's what his title was, yes.
PN335
And you see someone called Tariro Ruwiza?‑‑‑Yes.
PN336
What is his position with BGC Contracting?‑‑‑He's the project manager on site.
*** PAUL TREVOR BOLITHO XN MR BONCARDO
PN337
And when you say "on site", what are you referring to?‑‑‑The Duke and Iron Knob.
PN338
Right. So can you just clarify it for her Honour that you work at BGC South Middlebank Ranges operation?‑‑‑Yes, I do, your Honour. Yes.
PN339
Sir, is the statement that you provided to the Commission true and correct to the best of your knowledge and belief?
---Yes, it is.
PN340
I tender Mr Bolitho's statement, your Honour.
THE DEPUTY PRESIDENT: I'll mark that A4.
EXHIBIT #A4 WITNESS STATEMENT OF PAUL TREVOR BOLITHO
PN342
THE DEPUTY PRESIDENT: Just - Mr Boncardo?
PN343
MR BONCARDO: Yes.
PN344
THE DEPUTY PRESIDENT: The reference to Mr Tariro - - -
PN345
MR BONCARDO: Tariro - - -
PN346
THE DEPUTY PRESIDENT: What paragraph is that in?
PN347
MR BONCARDO: Paragraph nine, your Honour.
PN348
THE DEPUTY PRESIDENT: Okay. I obviously have a different version of the statement because I don't have it.
*** PAUL TREVOR BOLITHO XN MR BONCARDO
PN349
MR BONCARDO: I might have a different version of the statement, your Honour. Perhaps, Mr Bolitho could you tell her Honour what reference or paragraph Mr Spibey is referred to?‑‑‑It's definitely nine in mine. BGC Management, including Martin Spibey and Greg Heylen told me and other employees that we would not go backwards if we voted up the new agreement as a contract they had given us preserved our rates and the rates of pay for the rest of our employment.
PN350
THE DEPUTY PRESIDENT: Okay. So I have a different version between the signed and unsigned version?‑‑‑Yes.
PN351
MR BONCARDO: I tender the signed version, your Honour.
PN352
THE DEPUTY PRESIDENT: Okay. So the signed version doesn't have - - -
PN353
MR BONCARDO: Yes.
PN354
THE DEPUTY PRESIDENT: - - - the paragraph which - well, it's not in the format that you put to the witness then.
PN355
MR BONCARDO: I see. I'm not sure what your Honour has.
PN356
THE DEPUTY PRESIDENT: Okay. Perhaps we'll show you.
PN357
MR BONCARDO: Well, perhaps, I can simply tender the copy that Mr Bolitho has with him.
PN358
THE DEPUTY PRESIDENT: Okay. Can I have - - -
PN359
MR BONCARDO: I apologise to your Honour.
PN360
THE DEPUTY PRESIDENT: Okay.
PN361
MR BONCARDO: I'm not sure what has happened there.
PN362
THE DEPUTY PRESIDENT: If I take that one is that going to be a difficulty for Mr Bolitho?‑‑‑No. That's okay.
PN363
You're happy with that. Okay. I'll also check - my Associate will check with you in the next break about Mr Whitlock's statement because I think we may have - - -
*** PAUL TREVOR BOLITHO XN MR BONCARDO
PN364
MR BONCARDO: The similar problem.
PN365
THE DEPUTY PRESIDENT: - - -similar problem.
PN366
MR BONCARDO: Certainly. Mr Bolitho, have you had reason to have a look at and read Mr Ruwiza's statement which has been filed in these proceedings?‑‑‑Yes, I have read that. Yes.
PN367
Sir, you understand that Mr Ruwiza gives evidence about a direction that he gave for copies of the Mining Industry Award to be distributed to crib areas?‑‑‑Yes.
PN368
In the South Middlebank Ranges?‑‑‑Yes.
PN369
How many crib areas are there at the Soth Middlebank Ranges?‑‑‑There would be five.
PN370
Okay. Can you tell her Honour what the names of those areas are?‑‑‑They'd be the Workshop, the War Zone, the Chieftain, Fixed Plant and the night crib huts.
PN371
And sir which crib hut or huts do you frequent?‑‑‑Be the War Zone or the Chieftain.
PN372
Now, why do you go to those particular crib huts?‑‑‑They're the two production pits.
PN373
And you're a production worker?‑‑‑Production operator - yes.
PN374
I understand. Between March and June this year whilst this agreement was being negotiated did you at any point see a copy of the Mining Industry Award at either of those crib huts?‑‑‑No.
PN375
Sir, Mr Ruwiza, at paragraph 42 of his statement has outlined that consultation meetings were held on the 20 and 21 April?‑‑‑Yes.
PN376
And the 11 and 13 May with employees at the South Middlebank Ranges site. Do you remember reading that?‑‑‑Yes.
*** PAUL TREVOR BOLITHO XN MR BONCARDO
PN377
Can you tell her Honour which groups of employees attended those particular consultations?‑‑‑Yes. So out of the four dates it was sort of broken up into the two crews. So A and B would have been the first two, then C and D and then that week later A and B, C and D.
PN378
THE DEPUTY PRESIDENT: Okay.
PN379
MR BONCARDO: Yes. So which crew is your crew?‑‑‑B Crew.
PN380
And how many consultation meetings did B Crew have?‑‑‑I attended two but there was three in total.
PN381
Sir I show you a document - this for my friend's benefit is part of Attachment TR8 to Mr Ruwiza's statement. Do you recognise that document, sir?‑‑‑Yes, I have seen it - yes.
PN382
It's got a big black slodge on it?‑‑‑Yes.
PN383
I'd like you to ignore that for a second. Can you tell me what that document is and so far as you are aware how it came into being - into existence, I'm sorry?‑‑‑Yes, I'm not sure where the actual document came from but it was just our crew voting for Rod Spencer and myself to be our representatives.
PN384
Can you read the last paragraph of the document to her Honour please?‑‑‑"If you authorise these representatives to represent you please sign below in the space provided, otherwise you will be required to nominate either yourself or another party in writing to your employer at a timely manner. Please refer to the FairWork.gov.au website for further details."
PN385
Did you read that paragraph before you signed that document, sir?‑‑‑I guess - yes - I would have, yes.
PN386
Thank you. I seek to tender the document but I probably show my friend.
PN387
MR FLETCHER: We need a copy of it.
PN388
THE DEPUTY PRESIDENT: And more importantly I need a copy of it.
*** PAUL TREVOR BOLITHO XN MR BONCARDO
PN389
MR BONCARDO: You do, your Honour.
PN390
THE DEPUTY PRESIDENT: Would you like my Associate to get some copies?
PN391
MR BONCARDO: It's TR8. I tender the document, your Honour.
PN392
THE DEPUTY PRESIDENT: I still haven't found it.
PN393
MR BONCARDO: Your Honour, it's in TR8 and it is the fifth document in with Mr Bolitho's name on it.
PN394
MR FLETCHER: Hang on. It's not in my TR8.
PN395
THE DEPUTY PRESIDENT: Yes, it's not in mine either.
PN396
MR FLETCHER: That's my TR8.
PN397
MR BONCARDO: The fifth document in.
PN398
MR FLETCHER: Okay.
PN399
THE DEPUTY PRESIDENT: Can you do that magic for me as well?
PN400
MR FLETCHER: 185. There's a court book, Deputy President, with blue page numbers at the top.
PN401
MR BONCARDO: It's certainly there, your Honour.
PN402
THE DEPUTY PRESIDENT: Yes, thank you. If you can give that one back, thank you. Sorry. Thank you for your patience?‑‑‑No, you're right.
PN403
MR BONCARDO: Thank you, your Honour.
*** PAUL TREVOR BOLITHO XN MR BONCARDO
PN404
THE DEPUTY PRESIDENT: Do you want to tender that document, this particular document via this witness or you're happy to wait until it's tendered?
PN405
MR BONCARDO: I'm not sure whether my friend is going to tender it, so I'd like to tender it.
THE DEPUTY PRESIDENT: I will mark that A5.
EXHIBIT #A5 DOCUMENT
PN407
MR BONCARDO: I'll show you another document, sir?‑‑‑Thank you.
PN408
Can you have a look at that document for me and tell Her Honour what it is and approximately when you received it?‑‑‑It's the agreement for 2016 just in a draft form and I guess it would have been May when we started - roughly May when we started our bargaining, yes.
PN409
Sir, could you perhaps turn the page and have a look perhaps down the bottom of that document?‑‑‑Sorry, yes, March 2016.
PN410
Can you tell Her Honour to the best of your recollection when you received it?‑‑‑Yes, it was either late March or early May, your Honour, yes.
PN411
I tender what is a draft version of the Mining Enterprise Agreement.
PN412
THE DEPUTY PRESIDENT: Is that attached to a statement?
PN413
MR BONCARDO: Not so far as I am aware, your Honour.
PN414
THE DEPUTY PRESIDENT: Do you have a copy to hand up?
PN415
MR BONCARDO: It's Mr Bolitho's copy, your Honour.
PN416
MR FLETCHER: I'd probably direct you to a page reference in the book with the red numbers, Deputy, but page 9 of our book.
*** PAUL TREVOR BOLITHO XN MR BONCARDO
THE DEPUTY PRESIDENT: I will mark the Mining Enterprise Agreement 2016 dated March 2016 as exhibit A6.
EXHIBIT #A6 MINING ENTERPRISE AGREEMENT 2016 DATED MARCH 2016
MR BONCARDO: Thank you, your Honour. That's the supplementary examination-in-chief.
CROSS-EXAMINATION BY MR FLETCHER [11.19 AM]
PN419
MR FLETCHER: Mr Bolitho?‑‑‑Yes.
PN420
You're an employee of BGC Contracting?‑‑‑That is correct.
PN421
What is your role?‑‑‑And all-rounder.
PN422
What does that mean? What sort of tasks do you perform?‑‑‑Yes, excavators, loaders and dump trucks.
PN423
You say that in paragraph 6: "Some time earlier this year, BGC management approached employees, including myself, about negotiating a new enterprise agreement." And you said there that: "They encouraged us to elect representatives for our work groups to go to bargaining meetings for the new agreement." Is that correct?‑‑‑That's correct.
PN424
It also says that they also asked representatives to sign a form. It might be a subtle difference, but you weren't asked to sign a form per se. You were just asked. Is that correct, you were asked?‑‑‑Just basically just a representative form, you know, like, to say that I was going to represent my crew.
PN425
What you were told is if you want to be a representative, you need to sign a form that demonstrates who you're representing and how they have authorised you to represent them?‑‑‑That's correct.
PN426
You were elected by your crew?‑‑‑Yes.
PN427
You signed and they signed a form that said what it needed to in terms of approving you to be their representative?‑‑‑Yes, that's correct, yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN428
You attended several meetings. You have referred to those?‑‑‑Yes.
PN429
You have said in paragraph 7 that: "BGC presented us with an agreement and will not really listen to or consider any counter proposals we gave them." What you're saying there is that BGC had prepared an agreement that they had given to you and other representatives and, in fact, the entire workforce to consider; is that correct?‑‑‑That's correct, yes.
PN430
That's that document that was tendered in the course of your evidence?‑‑‑Yes.
PN431
That was part of the subject matter of discussions that occurred in the bargaining meetings?‑‑‑Yes.
PN432
You will have gone to the bargaining meetings with probably with questions and with aspects that you particularly would have liked to include the agreements?‑‑‑That's correct, yes.
PN433
Did you table a list of those issues at any of the meetings?‑‑‑Yes, I did have notes, yes.
PN434
You had notes?‑‑‑Did I raise them in the meeting?
PN435
Yes?‑‑‑Yes, yes, definitely, yes.
PN436
You raised them verbally?‑‑‑Yes.
PN437
Can you remember the issues that you raise?‑‑‑Just with the whole process, it used to be mining and maintenance and now it's one business group. There's a difference between - and that was a concern across both boards that there's an attendance bonus. We wanted to incorporate that. That just wasn't taken into consideration. A change in holidays. A change in crib breaks. We were losing crib time. Our weekly hours went down from 40 hours to 38 hours a week. What else? I think they were probably - off the top of my head, that's probably our key notes, yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN438
There was probably two types of issue. There was the issue that was something that wasn't in the agreement that you'd like to put in the agreement. The attendance bonus would be an example of that?‑‑‑It's in the agreement, but we wanted to get changed because they were referring to us becoming one group. Basically they were saying that they could trust their workshop guys, but not the production guys to turn up to work. You know, like, we couldn't get our heads around that.
PN439
But the attendance bonus doesn't form part of the current enterprise agreement, does it?‑‑‑Maybe it's written into our contract. I'm not sure where it's written.
PN440
If I suggested to you that it's in the contract, does that sound correct to you?‑‑‑It could be in our contract, yes.
PN441
Sorry, I have just lost my train of thought. The attendance bonus was an example of something that was in your contract under the agreement as opposed to in the agreement itself?‑‑‑Yes, yes.
PN442
You were used to the concept of there being an agreement and that's the form of the current agreement which still applies to you?‑‑‑Yes, yes.
PN443
The current agreement continues to apply to you until it's replaced by something new?‑‑‑Yes, the new one, correct.
PN444
That was the whole point of this exercise was to change that current agreement so that a new agreement could apply to you?‑‑‑Yes.
PN445
You accept that your agreement, the structure of your employment regulation was that you had the agreement and a contract?‑‑‑Yes, correct.
PN446
The two had different elements in them, but both elements applied to you?‑‑‑Yes.
PN447
The attendance bonus was an example of something that's not in the current agreement, but potentially in your contract and forms part of that interaction between the two documents?‑‑‑Yes, correct.
PN448
I mean, you use fairly emotive language in paragraph 8. You say: "To get us to swallow it." I think there you are referring to the new agreement?‑‑‑Yes.
PN449
I think what you mean there is that the new agreement, the terms and conditions that would be captured in the agreement were considerably less than what was in the current agreement?‑‑‑Yes, yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN450
Your understanding of the proposal that was being put to you was that you were being asked in order to assist BGC in a difficult climate to accept or vote "Yes" for an agreement that would reduce the agreement components of what you were getting?‑‑‑Yes.
PN451
But the quid pro quo or, as you say it, to get you to swallow it, what they were trying to do or what they were asking you to do was to accept that in good faith they were offering you a new contract that would be condition and would replace the old contract and that would have a lot of the preservation of your existing terms in it; is that right?‑‑‑Yes, your preserved rate, yes.
PN452
You understood the concept that was being put up?--Yes, yes.
PN453
Is it fair to say that you were pretty uncomfortable with the concept from the start?‑‑‑Yes, because that preserve rate, you know, there wasn't a lot of - there was a few things that could take that away from us. You know, it wasn't actually written in stone, I didn't believe.
PN454
Your perception was that an agreement would be a better place for those things to be than in a contract because you - and I will use emotive language but on a sort of qualified basis, that it was your trust, if you like, that you thought that you could trust in the entitlements being in the agreement, but with the contract you were a bit more unsure about what that might mean?‑‑‑That's right, I think, yes. In the agreement it required a little bit more change. Whereas in that personal contract it was probably not as solid as what the agreement was.
PN455
It was an agreement between you as an individual and the company; is that right?‑‑‑Yes, yes.
PN456
You were attracted to the collective nature of the enterprise agreement because that was voted up by the company and the employees?‑‑‑The new one?
PN457
Yes?‑‑‑No, I disagree because I don't really think we had much to do with the new one and what we wanted to change, we weren't allowed to.
PN458
It's not a case of not being allowed to. A proposition was put to you. And let's get back to the concept of preserved rates?‑‑‑Yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN459
We have established that your concern was that the agreement was being reduced?‑‑‑Yes.
PN460
And that there was a change of the mix in what was in the contract and what was in the agreement. We have established already that there is a whole lot of elements in your current contract, in relation to your current enterprise agreement that are contractual?‑‑‑Yes.
PN461
They are in the contract?‑‑‑Yes.
PN462
Attendance bonus. What other things are examples of things that are in your contract as opposed to in the agreement?‑‑‑Your hourly rates in your personal agreement, yes. I guess that's probably the two main ones.
PN463
Hourly rates, attendance bonus?‑‑‑And the preserved rate. So you've got the preserved rate.
PN464
No, I'm talking about your current contract?‑‑‑Sorry, the current contract, yes.
PN465
You have signed a provisional preserved rates contract, haven't you?‑‑‑Yes, yes, that I'm currently on, yes, yes.
PN466
The company is honouring that?‑‑‑Yes.
PN467
Even though the contract says that it won't come into effect until this agreement commences?‑‑‑No, the contract I'm on now is when I signed like - - -
PN468
That's your old contract?‑‑‑Yes, yes.
PN469
The new one, the preserved rates one, hasn't commenced yet?‑‑‑I've signed it only because no one knew whether this was going to get passed through Fair Work.
PN470
Hopefully it will?‑‑‑So it's been signed on the basis if this doesn't pass, that's null and void.
PN471
Talking about your current contract - - -
PN472
THE DEPUTY PRESIDENT: Is that a criteria that you put on it or - - -?‑‑‑No, that was what we were given.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN473
That if the agreement is not approved that you are no longer bound by that common law contract?‑‑‑That's right. We had to sign that by a certain date and then hand it in and then if the EA fell over in the Fair Work that that personal contract was, yes, no longer.
PN474
Then what's your understanding of what would happen then?‑‑‑We'd go back to negotiation or, yes, we'd write up a new one.
PN475
MR FLETCHER: In addition to going back to negotiation, the sort of point that you get back to is where you are now?‑‑‑Yes.
PN476
Which is your current contract, current enterprise agreement?‑‑‑Yes.
PN477
Just talking back about the current contract and current enterprise agreement, what material or what conditions are in the current contract as opposed to the agreement? You have mentioned in the rate. You have mentioned the bonus?‑‑‑Bonus.
PN478
Travel, is that one?‑‑‑Yes, sorry, travel is in that. Yes, you get half an hour each day travel. Yes, off the top of my head, I can't think.
PN479
There is allowances, but you don't get a tool allowance because you're not a maintenance guy?‑‑‑No, that's for maintenance, yes, they get their tool allowance, yes.
PN480
Back to the negotiations. Your concern at the time was probably two major concerns. Obviously you had some differences about what was being proposed and what you might like to see in the ultimate agreement and you say that the company took a pretty hard stance to bargaining?‑‑‑Yes.
PN481
They basically said, "This is what we want", and I think in one of the first meetings they said to you, "Tell us what we need to do to get a 'yes' vote." Can you remember being told that?‑‑‑That may have been - because I missed the very first one and that may have been the one I missed, yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN482
They had an idea of what they were looking for in the agreement in the version in what they put forward and what it was about was convincing or through the bargaining process understanding from you and other bargaining reps whether you were - or getting feedback from you about what employees might be willing to vote yes for?‑‑‑Yes, that's correct, yes.
PN483
Obviously you have made it pretty clear that you were unhappy with the BGC proposal and that really related to the combining of the maintenance and operations agreement; is that right?‑‑‑Not so much the combining. We didn't have an issue with the combining, just not branching out and making everything all universal, you know. That we were still under that attendance bonus where they weren't, you know.
PN484
But the attendance bonus was a contractual term so that wouldn't have matter, would it? Or were you looking to have the attendance bonus built into the enterprise agreement?‑‑‑Yes, we wanted it brought across and put into the EA, yes.
PN485
But you were used to it being a contractual thing?‑‑‑Because it was - yes, we were. Yes, we were.
PN486
But really the main issue was the preservation issue and I think at some point in the negotiations bargaining reps - and tell me if you were one of these bargaining reps - you put did you - I will rephrase the question. Did you at some stage during the process put a proposition to BGC that a way of getting a 'yes' vote would be to capture the preserved conditions in the agreement? Were you part of that push?‑‑‑Probably, yes. We probably were. Yes, we were, yes.
PN487
That's because in terms of there being a mix between agreement and contract, you wanted there to be more in the agreement and less in the contract?‑‑‑Correct.
PN488
That was put to BGC and BGC did respond to that, didn't they?‑‑‑Yes, they did.
PN489
It was elevated quite high. I think it went all the way up to the BGC executive and then they came back with a position: "No, we're going to stick with what we're doing and we're going to go with the combination of the agreement here and the contract here"?‑‑‑Yes.
PN490
In providing you with that response, you were under no doubt that the implications of what you were being asked to vote for was a reduction in your current agreement. So your current agreement would head down?‑‑‑Correct, yes.
PN491
But the trade-off, if you like, was that there be preservation in the contract for you as an individual?‑‑‑Yes, yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN492
But you were uncomfortable with that, aren't you?‑‑‑No - yes.
PN493
If things had gone differently - obviously you're opposed to the agreement now?‑‑‑Yes.
PN494
You have made no secret of the fact that you're opposed to the agreement and you remained opposed to the agreement through the voting process and now into this hearing?‑‑‑Correct, yes.
PN495
That's because of your position on the preserved conditions?‑‑‑Yes.
PN496
You went through the process and exercised your ability to contribute to the process by participating in the ballot?‑‑‑Yes.
PN497
You weren't one of the abstainers who didn't participate in the ballot?‑‑‑No, I voted "Yes". I voted.
PN498
You did vote?‑‑‑Yes, I voted, yes.
PN499
But you opposed the agreement?‑‑‑Yes, correct.
PN500
Which means you voted 'no'?‑‑‑No, that's correct.
PN501
Sorry, I just - - -?‑‑‑No, that's all right. That's all right. I've got nothing to - - -
PN502
Mother always taught me - - -
PN503
MR BONCARDO: I would have objected to that if you hadn't asked it so quickly.
PN504
MR FLETCHER: My mother always told me not to ask people - - -
PN505
THE DEPUTY PRESIDENT: But your witness was on the ball.
PN506
MR FLETCHER: My mother always told me not to ask people how they vote, but I think - - -
PN507
SPEAKER: You should listen to your mother.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN508
MR FLETCHER: If I can just take you back to this, the document you were shown. It's 185 in my court book. I will just hold it up so we're all on the same page?‑‑‑Yes, that, yes, yes.
PN509
THE DEPUTY PRESIDENT: That's it. A5, exhibit A5.
PN510
MR FLETCHER: Yes.
PN511
I need to put it to you that that document wasn't a document that was created by BGC; is that correct?‑‑‑I didn't create it so I don't really know where it came from and because my name is on there and I can't see whether I have signed it or not, I'm not a hundred per cent sure whether I signed it because I'm not going to sign it if I'm going to - I'm not going to elect myself.
PN512
You don't know where it came from?‑‑‑No, I didn't - I didn't - we didn't produce it.
PN513
If Mr Ruwiza said that he didn't produce it and the BGC didn't produce it, you would have no reason to disagree with that?‑‑‑Well, where would it come from? Like - - -
PN514
MR BONCARDO: I object. Mr Ruwiza hasn't said anything about that.
PN515
MR FLETCHER: He will.
PN516
THE DEPUTY PRESIDENT: I think he said "if Mr".
PN517
THE WITNESS: Can we get a copy with the signatures on it to see who signed it? Because I don't know where that came from. It's in his statement, so I've got no idea where it's come from.
PN518
MR FLETCHER: I'll probably need to take some instructions, but I don't think that's going to be - - -?‑‑‑Because we definitely - the other one there's - - -
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN519
I guess the question for you, Mr Bolitho, is how does seeing the signatures help you identify where it came from?‑‑‑Well, I'd be able to see whether I signed it and I'd be able to probably answer your question a bit more. But like that other one, I think there's one before that with "B Crew" on the top of it asking the union to represent us. We definitely made that one, but as to that one, I have no idea where that came from.
PN520
That's fine. That's probably everything I need.
PN521
THE DEPUTY PRESIDENT: Mr Fletcher, you are saying that your client is saying that they didn't create the document.
PN522
MR FLETCHER: Correct.
PN523
THE DEPUTY PRESIDENT: Your evidence is that you didn't create the document?‑‑‑No, I didn't. No, I didn't create it, no.
PN524
MR FLETCHER: Actually I will just put something to you and if you don't know, you don't know. At the first consultation meeting, did one of the reps say that he had downloaded a doc and would pass it to the others to use?‑‑‑Yes, that would have been the meeting that I wasn't at, so, yes, I can't answer that.
PN525
That's fine. I just needed to ask that question.
PN526
THE DEPUTY PRESIDENT: Where was it obtained from, the copy that's filed?
PN527
MR FLETCHER: It's in BGC's records because it's been handed to BGC.
PN528
THE DEPUTY PRESIDENT: At some point.
PN529
MR FLETCHER: At some point, but our - - -
PN530
MR BONCARDO: My friend wants to give evidence from the Bar table.
PN531
MR FLETCHER: I was asked a question. I'm answering a question.
PN532
THE DEPUTY PRESIDENT: Sorry, that's my fault because I asked him.
PN533
MR BONCARDO: Certainly, your Honour, but this is a matter for evidence.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN534
THE DEPUTY PRESIDENT: Yes.
PN535
MR BONCARDO: It's in Mr Ruwiza's statement. I'm sure he will be able to tell us about it.
PN536
THE DEPUTY PRESIDENT: Okay.
PN537
MR FLETCHER: Exciting developments for later in the day.
PN538
In paragraph 13 of your statement, you have said: "At no point was I given or did I receive a copy of any award from BGC before I voted for the agreement"?‑‑‑That's correct.
PN539
Are you aware that there was a request made from B Crew to Paul Haynes for a copy of the award?‑‑‑No, I wasn't. No, I wasn't aware of that, but I read somewhere that Mr T had something - - -
PN540
Mr T, yes, it's all right. I have already made that joke today?‑‑‑Yes, T had something from Paul Haynes, but I wasn't sure what crew it was from, yes.
PN541
If I told you it was B Crew, is that possible?‑‑‑Quite possible, yes.
PN542
You were aware at the time that something had been provided?
PN543
MR BONCARDO: That's not what he said.
PN544
THE WITNESS: No, no, I wasn't aware. I hadn't seen it. Yes, I hadn't seen it, yes.
PN545
MR FLETCHER: Were you aware that they had asked for it?‑‑‑No, no, I wasn't aware.
PN546
You weren't aware they had asked for it and you hadn't personally seen it?‑‑‑No.
PN547
THE DEPUTY PRESIDENT: I don't think you need to object until he answers. He is doing quite well.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN548
MR BONCARDO: He is dealing with this. He is very fast, your Honour.
PN549
THE DEPUTY PRESIDENT: Yes, he is.
PN550
MR BONCARDO: Too fast for me.
PN551
MR FLETCHER: If I put it to you that a copy was provided to Tariro and that he arranged for copies to be put in the crib huts, even though you didn't see them, that could be possible?‑‑‑It could be possible, yes.
PN552
Did you at any stage yourself ask for a copy?‑‑‑No.
PN553
Mr Whitlock gave evidence that he was told that there was one, but then he didn't give any evidence about whether he had followed up and asked for a copy. You didn't follow up and ask for a copy either?‑‑‑No, I didn't. I didn't ask for a copy.
PN554
You didn't ask for a copy of the Black Coal Award either?‑‑‑No.
PN555
Did you attend the initial briefings that were conducted on I think it was either 30 or 29 March?‑‑‑That would have been on site, you're talking about?
PN556
Yes?‑‑‑Yes, you'd have to - you'd have to check the attendance records, but I'll say yes.
PN557
Do you recall that was the presentation given by Heylen, do you recall that?‑‑‑Yes.
PN558
Do you recall Mr Heylen in the presentation talking about the fact that BGC wanted to get into coal mining?‑‑‑Yes.
PN559
That was because BGC wanted to expand the available work that it could pick up and basically secure its future?‑‑‑Correct.
PN560
You were aware at the time of the presentation that they wanted to get coal mining?‑‑‑Yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN561
You wouldn't have been surprised when you saw the coal mining schedule in the proposed agreement, the draft that was put forward?‑‑‑Correct, yes.
PN562
But you didn't have any questions about that aspect?‑‑‑Yes, no, no questions.
PN563
Because, I mean, even though I think as a plant operator you could probably do work in coal mining, but you weren't working in coal mining at the time that you were going through this process?‑‑‑Correct.
PN564
You were aware that from reading the agreement that there was references in the agreement to the Mining Award and to the Black Coal Mining Award; yes?‑‑‑Correct.
PN565
But even having read these, you didn't ask for a copy of the document?‑‑‑Correct.
PN566
Did you get the pack that went out too?‑‑‑The information pack?
PN567
Yes?‑‑‑Yes, correct.
PN568
You remember the one-pager that referenced the two awards and how to get hold of them?‑‑‑Yes.
PN569
But you didn't, presumably because you didn't - let me just ask you. Did you not look at the Coal Mining Award or, sorry, the Black Coal Mining Award or the Mining Award because they didn't really relate to issues that you were concerned about in the agreement?‑‑‑That would be fair, yes, yes.
PN570
That's why even though you had the information, you didn't try and access the information because it wasn't relevant to what you were concerned about?‑‑‑Correct, and to be fair on the Mining Award, the bit that probably reflected on our agreement the most would have been the hourly rate and we had extracts of that in the pack anyway.
PN571
But the pack provided quite a detailed comparison against - - -?‑‑‑Just on the hourly rates, yes.
PN572
That was to do with the classifications, wasn't it, because you wanted to be sure about it?‑‑‑For the new agreement?
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN573
Yes, where you fitted in the classifications?‑‑‑Correct.
PN574
We talked before about, you know, your headline issue with the preservation concept. Do you agree that there were concessions made? You have said, and I don't think it's in dispute, that there weren't any changes made to the proposed agreement; that's correct, isn't it?‑‑‑Correct, yes.
PN575
But there were changes made to what was proposed as a preserved condition, wasn't there?‑‑‑There were changes but - - -
PN576
I can think of one issue in particular that was quite close to your heart and that was the attendance bonus, wasn't it?‑‑‑Correct, but that never got changed.
PN577
The daily payment of the attendance bonus?‑‑‑No, we're still on a - we're still - we were - at one stage we wanted them to change it to a percentage, but if we missed one day out of our swing, the whole bonus is gone, yes.
PN578
That hasn't changed?‑‑‑No, I mean, yes, no, that hasn't changed.
PN579
But one of the key issues was the portability or transportability of your conditions; is that right?‑‑‑If we moved interstate?
PN580
Yes?‑‑‑Correct.
PN581
Different projects, promoted to a different role, those were the two scenarios that people were concerned about?‑‑‑Correct.
PN582
Were you one of those people not really in your case?‑‑‑No, no, not in my case, no.
PN583
But that was one of the things that was changed?‑‑‑Yes.
PN584
The other thing that I think was changed was that BGC made a decision to stick with the current classification system?‑‑‑As in the pay levels, is that what you're referring to?
PN585
Yes?‑‑‑Yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN586
To avoid confusion in re-classifying you to a new set of classifications that were in line with the Mining Award and the Black Coal Mining Award, what BGC did was they said: "This is where you fit and in your preserved conditions we are going to keep you on the same rate and still call you the same position"?‑‑‑Correct, but there has been some change in classification outside of the EA. It come into place in September or August where a level - it's to do with - I think it's to do with the new agreement. A truckie is - a water cart used to be level 4, but now they're calling a water cart level 3 so - - -
PN587
Are you a water cart driver?‑‑‑No, but that would make a new truckie level 2.
PN588
I think that's a bit of speculation, though, isn't it, Mr Bolitho?‑‑‑But you just raised the point about they have maintained our levels at the same and they haven't.
PN589
No, I'm saying did they give you a commitment that they would do that?‑‑‑Yes, but they haven't.
PN590
THE WITNESS: Careful what you ask for.
PN591
MR FLETCHER: In relation to the promotion or transferral, would you be surprised if I told you that BGC was recognising the preserved conditions in current promotions and transferals? Are you aware of any firsthand information about that?‑‑‑Sorry, say that again.
PN592
One of the commitments that was given was that people transferring to a new project or being promoted into a new role would still be receiving the preserved conditions; is that right?‑‑‑Correct.
PN593
Are you aware of anyone who has been promoted or transferred since the agreement was voted up?‑‑‑No promotions but I believe there's been a few transfers.
PN594
When people are transferred, they take their preserved conditions with them, don't they?‑‑‑I believe, yes, I believe so, yes.
PN595
Just back to that little issue that you mentioned about water carts and levels?‑‑‑Yes.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN596
You said at the beginning that that was not an agreement issue. That was an agreement - - -?‑‑‑I think it was outside, yes.
PN597
It was an issue that came up in the context of those individuals' classifications and their contracts?‑‑‑Okay.
PN598
Obviously you're a CFMEU member?‑‑‑Yes, correct.
PN599
Did you receive any information from the CFMEU about the differences between an agreement and a contract?
PN600
MR BONCARDO: I object to the question. I don't understand its relevance.
PN601
MR FLETCHER: I think it goes very much to the core.
PN602
THE DEPUTY PRESIDENT: I do.
PN603
MR BONCARDO: There is no obligation under the Act so far as that the union has got to disclose information to employees.
PN604
MR FLETCHER: I am not saying there is an obligation. I just want - - -
PN605
THE DEPUTY PRESIDENT: I don't think he was asserting that. He was just asking as a matter of fact did you receive any information. Whether they have a duty is a matter of submissions perhaps.
PN606
MR BONCARDO: Sure. Certainly, your Honour. I just don't think it's relevant.
PN607
MR FLETCHER: Did you receive any information from the CFMEU about the difference between a contract and an enterprise agreement?‑‑‑Not that I can remember, no.
PN608
Did you receive any of the information that was provided to the AMWU members by the AMWU about that issue?‑‑‑No.
PN609
Thank you. No further questions.
*** PAUL TREVOR BOLITHO XXN MR FLETCHER
PN610
THE DEPUTY PRESIDENT: Mr Bolitho, is it your evidence that the only changes that were negotiated that BGC agreed to were changes which happened to your common law contracts and not to the agreement? Is that your evidence?
PN611
MR HARDIE: I'm sorry to be a pest, Deputy President, but I cannot hear you.
PN612
THE DEPUTY PRESIDENT: Sorry. I will try again louder. I just wanted to clarify that any changes which were made that you were talking about and gave evidence about were changes to your common law arrangements and not to the agreement?‑‑‑Your personal contract, is it?
PN613
Yes?‑‑‑Yes, yes.
MR BONCARDO: Your Honour has taken my question.
RE-EXAMINATION BY MR BONCARDO [11.49 AM]
PN615
MR BONCARDO: Sir, following on from Her Honour's question and some of the questions my friend asked you about the preserved conditions, is it fair to say that the draft agreement that's been tendered in evidence is, so far as you're aware, almost exactly the same if not exactly the same as the agreement that was voted on in June?‑‑‑Yes.
PN616
Thank you, your Honour.
PN617
THE DEPUTY PRESIDENT: Any other questions? No?
PN618
Okay?‑‑‑Thanks, your Honour.
Thank you.
<THE WITNESS WITHDREW [11.50 AM]
MR BONCARDO: Thank you, your Honour. I call Kym Swanbury.
*** PAUL TREVOR BOLITHO RXN MR BONCARDO
*** KYM ASHTON SWANBURY XN MR BONCARDO
<KYM ASHTON SWANBURY, SWORN [11.50 AM]
EXAMINATION-IN-CHIEF BY MR BONCARDO [11.50 AM]
PN621
MR BONCARDO: Sir, could you please tell Her Honour your full name?‑‑‑Yes, Kym Ashton Swanbury.
PN622
What is your date of birth, sir?‑‑‑29/08/1960.
PN623
Are you an employee of BGC Contracting?‑‑‑That's right, yes, I am.
PN624
Do you work at their South Middleback Ranges operation?‑‑‑Yes.
PN625
What role do you perform for BGC Contracting?‑‑‑I'm a dozer operator.
PN626
Sir, have you prepared a witness statement for these proceedings?‑‑‑Yes.
PN627
Do you have a copy with you?‑‑‑No, I don't, sorry.
PN628
MR HARDIE: You've actually got the wrong one.
PN629
THE DEPUTY PRESIDENT: Yes.
PN630
MR BONCARDO: That was going to be my next question.
PN631
THE DEPUTY PRESIDENT: You can have mine, but I don't think it's right.
PN632
MR BONCARDO: Thank you, no.
PN633
I show you a document, sir. Do you recognise that, sir?‑‑‑Yes.
PN634
Is it a statement of some two pages?‑‑‑Yes.
PN635
Just to make sure that we are speaking about the same document, it's a statement with 13 paragraphs?‑‑‑Yes.
PN636
Your signature is below the 13th paragraph?‑‑‑That's right.
*** KYM ASHTON SWANBURY XN MR BONCARDO
PN637
Can I enquire whether your Honour has the 13 paragraphs?
PN638
THE DEPUTY PRESIDENT: I do, but the paragraph numbers matched on one of the others. It's just the content that varied. We will see how content goes.
PN639
MR BONCARDO: We shall. I tender Mr Swanbury's statement, at least the one he has with him in the witness box.
THE DEPUTY PRESIDENT: That's A7.
EXHIBIT #A7 STATEMENT OF KYM SWANBURY OF 13 PARAGRAPHS
PN641
MR BONCARDO: Mr Swanbury, I'd like to ask you some further questions about the agreement negotiation process which flow from a statement that Mr Tariro Ruwiza has filed in these proceedings. Can you tell me, is Mr Ruwiza the person known as "T"?‑‑‑That's correct.
PN642
Sir, how many crib rooms are there at the South Middleback Ranges site where you work?‑‑‑There's over five.
PN643
Do you attend a particular crib room?‑‑‑Yes.
PN644
Do you attend more than one?‑‑‑Yes.
PN645
How many crib rooms do you attend?‑‑‑Two to three.
PN646
Can you tell Her Honour what their names are?‑‑‑One would be War Zone, the Chieftain crib hut and training room.
PN647
During the course of the negotiations for this agreement between March and early June, did you at any point see a copy of the Mining Industry Award at any of those crib huts?‑‑‑No.
PN648
Did you see a copy of the Mining Industry Award at any crib hut you attended at all during the course of that period?‑‑‑No.
PN649
That's the supplementary examination.
*** KYM ASHTON SWANBURY XN MR BONCARDO
THE DEPUTY PRESIDENT: Thank you.
CROSS-EXAMINATION BY MR FLETCHER [11.54 AM]
PN651
MR FLETCHER: Mr Swanbury, do you work at South Middleback Ranges; is that correct?‑‑‑That's right, yes.
PN652
I am going to have to ask you this question because you're the third witness and I haven't asked this question so far but I am incredibly curious. Why is the crib hut called War Zone?‑‑‑Yes, I don't know. I'm not sure.
PN653
That has got to be most curiously named crib hut I have ever heard of. Hopefully it doesn't reflect the nature of what goes on inside the crib hut?‑‑‑Yes, I have no - - -
PN654
Hopefully you all get on. War Zone is not your crib hut, though, is it?‑‑‑No, that's right.
PN655
Which one is yours?‑‑‑The Chieftain crib hut.
PN656
What job do you do? You're a dozer operator?‑‑‑Dozer operator.
PN657
You have only ever worked at Whyalla?‑‑‑Yes.
PN658
Only at South Middleback?‑‑‑Yes.
PN659
In your statement, you have said that BGC started negotiations for a new agreement. Do you remember attending the briefings that occurred when the process kicked off?‑‑‑Yes.
PN660
Do you remember the various - do you remember the PowerPoint presentation at the first - sorry, the first question - did you attend a briefing?‑‑‑Yes, yes.
PN661
Do you remember what date?‑‑‑No.
PN662
Could it have been 29 or 30 March? Does that sound right? Does 30 March sound right?‑‑‑Possibly, I'm not sure, yes.
*** KYM ASHTON SWANBURY XXN MR FLETCHER
PN663
Do you remember that presentation, if you were in attendance, that that was given by Greg Heylen?‑‑‑Yes.
PN664
Greg Heylen is the CEO of BGC Contracting?‑‑‑Yes, that's right.
PN665
That is the reference in paragraph 10 that you are referring to there, is that right, in your statement?‑‑‑Yes, that's right.
PN666
You also received the various frequently asked questions communication?‑‑‑Yes.
PN667
You would have attended consultation briefings, I think. What do they call the briefings at Whyalla, at South Middleback Ranges, where you have your meetings with Tariro?‑‑‑Return to work.
PN668
Return to work is one of them and then there is also I call them a tool box?‑‑‑Tool box.
PN669
Did you call it a tool box as well?‑‑‑Yes, tool box.
PN670
In the course of receiving - so you would have attended the - you remember attending the Greg Heylen presentation because that's where he said what you say he said in paragraph 10?‑‑‑Yes.
PN671
You remember receiving the frequently asked questions document?‑‑‑Yes.
PN672
Do you remember receiving the - there were two packs. There was the first pack was the pack that went out at the time of the Greg Heylen briefing that had - I think there was a notice of representation rights which is that one-pager about your representation in one envelope and then there was a pack there of materials including a draft of a proposed agreement and a contract; do you remember?‑‑‑Yes, it was a sample, yes.
PN673
Were you a bargaining rep?‑‑‑Sorry?
PN674
Were you appointed as a bargaining rep?‑‑‑No.
PN675
You didn't attend any bargaining representative meetings, did you?‑‑‑No.
*** KYM ASHTON SWANBURY XXN MR FLETCHER
PN676
The bulk of your consultation with the company will have been through the briefings that you had with Tariro and other managers, Mr Heylen. Do you remember Mr Spibey coming to site? No?‑‑‑No.
PN677
Do you remember discussions with anyone else? Mr Block? Does that ring a bell? No?‑‑‑No.
PN678
The bulk of the communications would have been the Greg Heylen presentation, then you received the pack. Can you remember in the pack that you received there was a comparison between the old agreement and the new agreement? Do you recall that?‑‑‑Yes.
PN679
Do you recall - in fact, I think you do recall because you say that you were told by Mr Heylen - this is in paragraph 11 - that you understood: "From what Mr Heylen and Tariro told us that if we voted up the agreement, signed contracts we had given that our rates would be preserved and would not move." Is that correct, yes?‑‑‑Yes.
PN680
Your understanding was that currently because this agreement hasn't been approved yet and hopefully it will be, but it hasn't been approved at this point in time, you are covered by the 2012 enterprise agreement; is that right?‑‑‑As far as I know, yes.
PN681
The mining agreement?‑‑‑Mm-hm.
PN682
Your conditions of employment are made up the 2012 enterprise agreement and your current contract of employment; is that right?‑‑‑Yes.
PN683
You understand that there is an element that is in the agreement and there is an element that's in the contract?‑‑‑Yes, yes.
PN684
You were aware that what the company was asking you to do in its proposal was for you to vote 'yes' for terms and conditions of employment in a new agreement that were less than what is in the current agreement that applies to you. Did you understand what you were being asked to vote for?‑‑‑Yes.
*** KYM ASHTON SWANBURY XXN MR FLETCHER
PN685
As part of the package that was put to you, BGC - and this is where you have talked in paragraph 10, you have said: "You will be on a preserved rate. Your rate of pay will not be cut. Your rate will be safe." Those are all references to the fact that what BGC was proposing was that the mix between what's in the contract and what's in the agreement was going to change. So you would have less in the agreement but he presentation of all of your terms would be in the contract. Is that your understanding of what was being proposed?‑‑‑Yes, yes.
PN686
Obviously you are here giving evidence in support of an objection to the agreement being approved. Did you object to the agreement being approved?
PN687
MR BONCARDO: I object to the question. I don't see how it's relevant.
PN688
THE DEPUTY PRESIDENT: I think that's what we're trying to ascertain, whether employees do agree to the agreement being approved and if not, why, and that's I think maybe in the evidence that you're trying to lead is that why employees might because I would have thought that was the next question from Mr Fletcher.
PN689
MR BONCARDO: What Mr Swanbury or anyone else's views are of this agreement are really neither here nor there. What is relevant is whether or not there was genuine agreement in the circumstances as they existed when the agreement was voted on. What Mr Swanbury's view is now is neither here nor there unless some attack is going to be made on his credit.
PN690
THE DEPUTY PRESIDENT: He didn't ask his view now. He asked whether he voted for it.
PN691
MR BONCARDO: Yes, and that again is an irrelevant question so far as I am concerned. It doesn't go at all to genuine agreement. It doesn't go at all to any of the issues in this case about whether - - -
PN692
MR FLETCHER: With respect, Deputy President, it goes to the heart of the agreement. If you genuinely agree with it, then you presumably are going to vote for it.
PN693
THE DEPUTY PRESIDENT: Yes, I would have thought it's in favour of your position that employees don't agree to it and this particular employee might be able to articulate why he didn't vote for it.
PN694
MR BONCARDO: I say all those reasons of why or why didn't vote for it are not relevant, but I have heard what your Honour has had to say.
PN695
THE DEPUTY PRESIDENT: Yes. I will allow the question.
*** KYM ASHTON SWANBURY XXN MR FLETCHER
PN696
MR FLETCHER: Did you vote to approve the agreement? The first question is, did you participate in the vote?‑‑‑Yes.
PN697
Did you vote 'yes' or 'no'?‑‑‑I voted 'no'.
PN698
The reason you voted 'no' is that you were not satisfied that the representations that were made about preserving conditions in the contract, you couldn't be comfortable that that would give you the same outcome as having those conditions in an agreement; is that correct?‑‑‑That's correct.
PN699
Thank you, Mr Swanbury, no further questions. Actually, sorry, no, sorry, no, no. I have just realised. Yes, sorry.
PN700
THE DEPUTY PRESIDENT: The golden question. Here, wait for it.
PN701
MR FLETCHER: The golden question, that's right. Woops, so close.
PN702
You were asked if you - well, sorry, you have actually said in paragraph 13 that you never received a copy of any award from BGC before you voted on the agreement; is that right?‑‑‑That's correct.
PN703
But you were aware that there were references to the award within the agreement itself. So presumably you read the agreement as part of the process; yes?‑‑‑Mm-hm.
PN704
You knew that there was a reference to the Coal Mining Award.
PN705
THE DEPUTY PRESIDENT: Sorry, just for the purpose of transcript, if you nod your head it doesn't translate well into transcript?‑‑‑Sorry, that's a 'yes', yes.
PN706
You have to actually say something as well?‑‑‑Okay. Sorry.
PN707
MR FLETCHER: Yes, if you can just say 'yes' or 'no'.
PN708
THE DEPUTY PRESIDENT: You can say 'no'. You don't have to say 'yes' just because Mr Fletcher says you have to say 'yes'.
*** KYM ASHTON SWANBURY XXN MR FLETCHER
PN709
MR FLETCHER: No, I did say 'yes' or 'no', Deputy President. I did say 'yes' or 'no'. I may have mumbled 'no', but I did say 'yes' or 'no'.
PN710
Mr Swanbury, you read the proposed agreement that was put out by BGC at the beginning of the process and then the one that ultimately you voted on?‑‑‑Yes.
PN711
You were aware that in the agreement there were references to the Mining Industry Award and the Black Coal Mining Industry Award?‑‑‑And the second one, yes.
PN712
It says in paragraph 13 that you never received a copy of the award, but in your final pack there was a sheet. Do you remember the sheet that said: "You can obtain a copy from this website"? Do you remember that sheet?‑‑‑Not off hand, no, I'm not sure.
PN713
But if I showed you a sample copy of the pack, would it remind you?‑‑‑Possibly, yes.
PN714
I am just going to take you to - has Mr Swanbury got the book? No. That's all right. I'll just hand it up. I think it's easier if I just give him a copy. I am just showing Mr Swanbury page 656. That was in the pack of materials that were received during the access period that you voted. Does that ring a bell?‑‑‑No.
PN715
It was attached to a letter from Martin Spibey. Do you remember the letter from Martin Spibey?‑‑‑I don't recall, no.
PN716
You never asked anyone for a copy of either award, did you?‑‑‑No.
PN717
You say that you never saw one in the crib hut. Were you aware that they were available in the crib hut?‑‑‑No.
PN718
Thank you. No further questions.
PN719
THE DEPUTY PRESIDENT: Thank you.
PN720
MR BONCARDO: Nothing arising, your Honour.
*** KYM ASHTON SWANBURY XXN MR FLETCHER
THE DEPUTY PRESIDENT: Anyone else? You are discharged. You can leave?‑‑‑All right. Thank you.
<THE WITNESS WITHDREW [12.07 PM]
PN722
MR BONCARDO: That's the totality of the CFMEU's witnesses, your Honour.
PN723
THE DEPUTY PRESIDENT: Thank you. Did you want to say anything more now or are you happy to move straight onto the other witnesses?
PN724
MR BONCARDO: I am happy to continue with the evidence, your Honour.
PN725
THE DEPUTY PRESIDENT: Thank you.
MR HARDIE: Madam Deputy President, the AMWU calls Ryan Wake.
<RYAN WAKE, SWORN [12.08 PM]
EXAMINATION-IN-CHIEF BY MR HARDIE [12.08 PM]
PN727
MR HARDIE: Sorry to keep you waiting so long, Ryan?‑‑‑That's okay.
PN728
Ryan, I have in front of me - are you Ryan Wake of (address supplied)?‑‑‑I am.
PN729
Are you employed at BGC IKMA?‑‑‑I am, yes.
PN730
What do you do there?‑‑‑I'm a boiler maker in the maintenance department.
PN731
Did you bring with you a copy of a statement that you made to the AMWU?‑‑‑Yes, I did, yes.
PN732
Permission to approach? Your Honour, I have put this into a tabulated - it's a large statement.
PN733
THE DEPUTY PRESIDENT: Okay.
*** RYAN WAKE XN MR HARDIE
PN734
MR HARDIE: Looking at the copy of the document you have got there, how many paragraphs does it have?‑‑‑Quite a lot. 145.
PN735
Is that signature at the bottom after paragraph 145 yours?‑‑‑Yes, it is.
PN736
Do you have annexed to your statement annexures RW1 to RW25 inclusive?‑‑‑Yes, I do.
PN737
Is your statement accurate and correct to the best of your ability and recollection?‑‑‑Yes. There is one probably change I'd like to make.
PN738
Can you take us to that?‑‑‑Yes. I have a name wrong. I've got a bit better referencing here. Sorry, it's taking a while to find it.
PN739
THE DEPUTY PRESIDENT: That's okay?‑‑‑It says in reference to one of the reps that belonged to the production crew on my swing. On one occasion I have named him as James and his name is actually Michael, Michael Grant. Yes, I can't find the actual paragraph right now, is that a problem?
PN740
MR HARDIE: Are the people referred to in a communication from an email sent to WA?‑‑‑No, they weren't. Here was - yes, he was involved in that, yes, yes, involved in the phone link-up.
PN741
Maybe it's paragraph 81 that you want?‑‑‑Yes, it's paragraph 82. Thanks for the assistance. So in 81 I have referred to him as "Michael Grant", and then paragraph 82, I have written, "James, Dave and I", and it should be, "Michael, Dave and I."
PN742
With that amendment, is that paragraph 82 on the first line should read, "The next day, Tuesday, 10 May, Michael, Dave and I, spoke with employees"?‑‑‑Yes, that's correct.
PN743
All the annexures, RW1 through to RW25, are they true and accurate copies of documents?‑‑‑Yes, they are.
PN744
You don't need to go to it, but at paragraph 49 of your statement, you say that you were handed a notification of representation of rights on 30 March 2016 during a presentation by the CEO. Do you recall receiving the NRR, the notice of representational rights?‑‑‑Yes, it was part of a pack in an envelope. At the time I didn't realise that was the official form, but there is a document in there that says "Notice of representation rights" and explains it. But I wouldn't call it a form as such. It's just information.
*** RYAN WAKE XN MR HARDIE
PN745
What, if anything, did you do with that form?‑‑‑It just stayed with that pack and information. I didn't do anything with it.
PN746
When did you join the AMWU?‑‑‑I believe it was on or around 31 March, shortly after or my next day off after the CEO's presentation and the packs were handed to us.
PN747
From your perspective, who was your bargaining rep?‑‑‑I guess from that point, the union was my bargaining representative.
PN748
In your statement you indicate that you were a bargaining rep for your work group?‑‑‑That's correct.
PN749
When were you selected for that role?‑‑‑It was during my next swing back at work. I believe it came about from the second FAQ sheet that came out. The first question in that was around the consultative process and having representatives, work group representatives. That prompted my direct work group to discuss it at a tool box meeting and from there my name was put forward and, yes, my supervisor was informed that I would represent the group.
PN750
When were you selected?‑‑‑Yes, I believe it would have been 12 April.
PN751
Certainly after you joined the union?‑‑‑Yes, yes.
PN752
You said that you understood that the AMWU was your bargaining agent?‑‑‑Yes, I understood. Well, it was a grey area to me how I was new to the union and new to the bargaining process, but I understood that the union was there to act in my interest in the negotiating process.
PN753
On 30 March, the CEO comes and makes a presentation; on 31 March you joined the union. Is there any correlation between the two?‑‑‑Yes, well, I was concerned with the way it was put to us. I was concerned with the individual contracts being rolled out with the EA negotiations.
PN754
MR FLETCHER: Sorry to interrupt, Deputy President. We haven't had this much evidence-in-chief and I can understand why Mr Boncardo wanted to elicit evidence-in-chief. He had a good reason for it. He put me on notice before he did it. Are we going to traverse Mr Wake's statement or are we going to be having a statement filed and then having him cross-examined?
*** RYAN WAKE XN MR HARDIE
PN755
MR HARDIE: Since Mr Wake made his statement, other material has been provided, a plethora of other material which raised other questions.
PN756
THE DEPUTY PRESIDENT: Which has led to some people to file additional statements.
PN757
MR HARDIE: Yes, and Mr Wake hasn't filed additional statements. Rather than engaging in a paper war, my preference is to do it by examination-in-chief. I indicated - - -
PN758
THE DEPUTY PRESIDENT: My preference in directions is to do it by filing pieces of paper so that I have it before me when I make my decision.
PN759
MR FLETCHER: I think given the time and the inconvenience caused, it might be appropriate if I at least be given the lunch break to consider the additional - if there is going to be lots of additional evidence led then I need some time to think about it before I cross-examine on it.
PN760
THE DEPUTY PRESIDENT: Yes, I think we have probably got a lunch break after this witness, in any event, if that's convenient for the rest of the parties.
PN761
MR HARDIE: Yes.
PN762
THE DEPUTY PRESIDENT: Is there a lot of new material that you are proposing to introduce?
PN763
MR HARDIE: Yes, yes, your Honour.
PN764
MR FLETCHER: That's my point. That's what the submission is about.
PN765
MR HARDIE: I won't be limited in my examination. I can understand why my friend is trying to limit the evidence being put on transcript, but I have no intention of going away with an extensive examination-in-chief.
*** RYAN WAKE XN MR HARDIE
PN766
THE DEPUTY PRESIDENT: The point of written directions and the limited time is so that - we have a very limited timeframe for this hearing is to make sure that you are not constrained in the evidence that you are able to submit. If we are not aware until you stand to your feet today that you need more time for more evidence it makes it very difficult for us to list the matter to accommodate the filing of your evidence. That's the point - the reason why we issue directions. The other reason why we issue them is so that I can read the materials and I can come to this courtroom with the capability of understanding what it is a party is trying to put before me. Doing it now produces some difficulties for all the parties.
PN767
MR HARDIE: Yes, well, I apologise. I apologise for any inconvenience caused.
PN768
THE DEPUTY PRESIDENT: Let's try and to make some progress in a timely way because the capacity to come back and hear this matter is limited so it will end up, if we go long over time it will end up early starts and late finishes.
PN769
MR HARDIE: I am sure your Honour is anxious to hear from credible witnesses relevant information that goes to the decision making and wouldn't want to at all cut that short.
PN770
THE DEPUTY PRESIDENT: Absolutely. No, that's why I gave them the opportunity to file that information. Go on.
PN771
MR HARDIE: I might point out that it was my - with due respect, it was with my strong recommendation that we had a directions hearing given that we were - which we had information flying all over the place and it just got so difficult to manage. I am sure your Honour will recall that I suggested it was about time we had a directions hearing because it was just so unclear as to who was filing what when.
PN772
THE DEPUTY PRESIDENT: I think that was a very sensible suggestion and it was held as soon as I returned to the country. Would you like to progress?
PN773
MR HARDIE: Have you had any previous - so just to recap, I think we are at how you were selected as a bargaining agent. And correct me if I am wrong, but I think you said you were selected by your group and then who told management, then management came and told you?‑‑‑Yes, in effect. Like, my supervisor was present in the room when we discussed who would be a good candidate to represent them and so he knew instantly and from there I began receiving communications from management around when meetings and things would be held. So I took that as being officially recognised as a rep.
PN774
Were you given any forms or anything to sign?‑‑‑No.
*** RYAN WAKE XN MR HARDIE
PN775
Have you ever been a bargaining agent before?‑‑‑No, I haven't.
PN776
Did the employer provide you with any training about your role as a bargaining agent?‑‑‑No, no.
PN777
Apart from the CEO's presentation on the 30th and the FAQs you were provided with, what other resources were provided to assist you?‑‑‑I guess, well, none were provided. There was - when I - if I asked to use a computer to send an email or to have a meeting with my guys I was - with my team, I was given that time, but there was no actual other resources to enable me to do my - to understand my role and enact it.
PN778
Were you given copies of awards and the last agreement?‑‑‑I obtained a copy of the last agreement. I think I may have still had it in a file at home. I dug it out from there. I don't believe it was given to me by BGC.
PN779
Were you able to use mobile phones to communicate as a bargaining agent?‑‑‑Not during - not during working hours, no.
PN780
You weren't able to use phones?‑‑‑No.
PN781
Can you elaborate on what access you had to computers and email?‑‑‑Yes, I was lucky enough to have a BGC email account. Many of my counterparts didn't, but in the past I had filled in for our maintenance planner. So there's two computers in the maintenance office that have access to an Outlook account. So there was times where I was able to use that to send emails to other people I had contact details for which wasn't very many people.
PN782
Can I take you to paragraph 75 of your statement? For the Commission's benefit, there you say that you weren't provided with any other bargaining agent's names and contact details until early May?‑‑‑Yes, that's correct.
PN783
Are you sure of this?‑‑‑Yes.
*** RYAN WAKE XN MR HARDIE
PN784
How were you meant to consult with other bargaining agents?‑‑‑Yes, it was difficult. The first time - we had one meeting prior to that on 21 April where there was reps from other - from the other site, mind you, and mine that were on the same swing as me. I didn't know who they would be until I got there and once I was there, there was one or two guys that I was familiar with. But aside from that, I knew who a couple of them were personally just from knowing them, but the first time I saw a list of names was on that - through that email on 6 May and it was basically just a schedule for the next meeting. So because we were on two swings on a seven-on, seven-off roster - while there's seven - one group of guys on, there's one group of guys off - so they held a meeting for my swing on and they held a meeting for the opposite swing. So there was a table in there that had names so that you knew which meeting to attend. But even that list didn't have any contact information for the people. It just had who they were.
PN785
You stumbled across that information?‑‑‑Yes.
PN786
It wasn't given to you for the purposes of communicating with the other bargaining agents?‑‑‑No, no.
PN787
Correct me if I am wrong, but in your statement you say you have had three meetings with management and bargaining agents on 24 April, 11 May and 18 May; is that correct?‑‑‑That's correct.
PN788
Then on or around 18 May a vote was flagged for early June?‑‑‑Yes, that was actually flagged on the morning of the 18th, so technically we only had two meetings while it was still an active negotiation. By the time we arrived for our meeting on the 18th, the communication had already been sent out that we were going to a vote.
PN789
What was your view on proposing going to a vote before the meeting on 18th?‑‑‑Yes, I was a little bit taken back by it because the previous meeting six or seven days earlier it felt like we were starting to be heard. Martin Spibey had attended the site at Iron Duke earlier on the day of that meeting and he had said that he was going to go back and consider putting our conditions, preserved conditions, into the agreement and also the production guys were happy he was considering a change to their attendance bonus. So, yes, we thought he was away considering that and then the next thing we heard about it was it's not happening and, in fact, we have finished negotiating and we're going to a vote.
PN790
Who is Martin Spibey?‑‑‑I believe he is the general manager of the mining division at BGC.
PN791
You say on 11 May he said he was going to go and consider some proposals that the bargaining agents had put to him. When was he due to report back?‑‑‑Yes, I don't know if we had a timeline on an answer on it, to be honest.
PN792
When did you get your answer?‑‑‑On the 18th basically with the communication saying that this is the deal and we're going to vote on it as it is.
*** RYAN WAKE XN MR HARDIE
PN793
When did you pick up that a vote was flagged, before or after you got your feedback from Martin Spibey?‑‑‑Before, yes. Well, at the same time, I guess, because I gathered - from the same communication I gathered that they decided against putting it into the EA.
PN794
Did they indicate there was any room to move?‑‑‑No.
PN795
Did they indicate why they thought they were in a position to go to a vote?‑‑‑No.
PN796
Why did you think it was odd that they had flagged going to the vote?‑‑‑I felt like we hadn't really had a chance to negotiate yet with only the two active meetings and the first of those being without unions present and we were just starting to get a feel for the process and starting to communicate amongst ourselves and tried to work out as a group what we actually wanted to negotiate for.
PN797
Are you saying there were no union bargaining agents at the first meeting on 24 April?‑‑‑Yes, that's correct.
PN798
What other bargaining agents represented worksites at that meeting on 24 April?‑‑‑On the work group site, just the work group reps from each department and each local site on these - - -
PN799
IKMA exclusively?‑‑‑And Iron Duke, SMR. So Iron Knob and Iron Duke. They were both within 50 kilometres of Whyalla. We came together but only the people on the same roster. So the people that were rostered off held a separate meeting to us, but, yes, the guys that were rostered on at the same time.
PN800
How many employee bargaining agents were they, sir, on 24 April?‑‑‑I can't recall exactly. I would think around 10 or 12.
PN801
Do you have any idea from getting the list by chance of who the other bargaining agents were? How many other bargaining agents were there for - - -
PN802
MR FLETCHER: I have been pretty patient, Deputy President. I don't understand how this is responsive to the material that has been filed previously. It just doesn't seem to. It's putting us at a disadvantage.
PN803
THE DEPUTY PRESIDENT: Mr Hardie, how is it responsive or, more particularly, what particular witness statement is it responsive to?
*** RYAN WAKE XN MR HARDIE
PN804
MR HARDIE: It's relevant. It's relevant to assertions made about consultation, pre-disclosure, proper - I had a statement delivered to me last night from an engineer that my friend lodged. So you might have been overseas, your Honour, but during that course of time - --
PN805
MR FLETCHER: In accordance with the directions.
PN806
MR HARDIE: Your Honour, you can block me ask the questions or not, but I - - -
PN807
THE DEPUTY PRESIDENT: I am just wondering given that you were given the opportunity to give the evidence earlier so that both parties are able to respond to them why you chose not to do so. Unless you are saying that this is new. Unless you can identify what new material it relates to because that's what initially you said to me. You said that there was new material filed and so you need to be able to address that new material. And that's correct. If there is material which you haven't had the chance to address in accordance with the directions, you should get that opportunity. So that's why I have asked you what new material that this relates to.
PN808
MR HARDIE: Yes. I hesitate to say this, but I am also a grandfather of a seven year old where I have had to look after him during the school holidays. A plethora of information has been going back and forth. The volumes of it being dumped have been - I don't have a personal assistant. I have been struggling with the haphazard nature of the way things have been unfolding. And I might add that - I might add that through no fault of the AMWU - no, no, I won't, I won't go there. But I am just saying either you want to provide the opportunity for us all - - -
PN809
THE DEPUTY PRESIDENT: That's why I issued directions.
PN810
MR HARDIE: We have flown this guy in to give evidence. We have had to deal with the tyranny of distance with all sorts of barriers in terms of time, distance, logistics. My friend might have an office full of staff and people briefing him. I am the one union lawyer for the AMWU and if your Honour proposes to limit my ability to properly represent my members, so be it.
*** RYAN WAKE XN MR HARDIE
PN811
THE DEPUTY PRESIDENT: I am not proposing - hadn't proposed to limit your opportunity to represent your members. That's why I issued directions so that we can make sure that materials were filed by all the parties on time so that all the parties had the opportunity to respond. I have some sympathies with your position because I am the single mother of three boys and I had my three sons during the school holidays. Mine were sitting in my chambers, one of them asleep on the floor while I read the materials that were being filed. I have every sympathy for that because I worked through the night reading these materials so that I could be prepared for this hearing and I could give the parties a fair hearing. So my intention is to make sure parties do get a fair hearing and to ensure they do so and they don't run out of time to give their evidence I give them the opportunity to file beforehand given the constraints we have got in our listing calendar to hear and determine this matter. I have endeavoured to ensure fairness and equity and the opportunity to give evidence. I will allow you to continue, but you need to make sure you move through at an appropriate pace so that all of the parties get to give their evidence before we leave South Australia.
PN812
MR HARDIE: I am mindful of that, thank you.
PN813
THE DEPUTY PRESIDENT: Thank you.
PN814
MR HARDIE: Your Honour, I might also say that one of the other difficulties for bargaining agents and for sole lawyers without any other administrative support trying to deal with this situation is we have got people working 12-hour shifts, 12 hours on, 12 hours off, with 24-hour full production periods, the tyranny of distance. I mean, to get further witness statements is very difficult and we tried to. We used different means to try and get Mr Wake's witness statement as comprehensive as possible. So I am as frustrated as you are.
PN815
THE DEPUTY PRESIDENT: Perhaps we should get on and put that evidence now rather than continue to argue about it.
PN816
MR HARDIE: Good.
PN817
Who attended on 11 April, bargaining agents, meeting with management?‑‑‑You mean 11 May or - - -
PN818
11 March, sorry?‑‑‑That's the second meeting. So at the second meeting we had Scott Martin from the AWU as well as Steve McMillan from the AWMU. Around a similar number, 12 to 15, work group reps and I think there was six or seven BGC management representatives including a HR person and a couple of project managers and superintendents.
PN819
What worksites id the bargaining agents, employee bargaining agents, represent?‑‑‑The same two, Iron Knob and Iron Duke, the two local sites.
*** RYAN WAKE XN MR HARDIE
PN820
Just to recap, you thought on 11 May that you were getting somewhere. Mr Spibey?‑‑‑Spibey.
PN821
Went off to see whether you could terms and conditions put back into the EA, rather than looking like (indistinct) and he was coming back to you. Then the next meeting you had was on the 18th where you were told: "Sorry, we are not going to contemplate that and we're going to a vote"?‑‑‑That's correct.
PN822
During that bargaining time, firstly, can you tell us what a 24-hour production phase is?‑‑‑Yes, at the time my local site had recently scaled back production, so we only - we only mined during the day and at night the site was shut down. But for one week of each month due to production requirements, we went back to 24-hour production where we had a day and a night shift active mining. The guys to man the extra crew were brought across from our Iron Duke site mostly, topped up with people coming in for overtime, I believe.
PN823
You are saying there was movement of staff between SMR and you and 24/7 basically production?‑‑‑Yes.
PN824
What impact did that have on you in carrying out your role as a bargaining agent?‑‑‑I guess directly it didn't, it didn't affect me a lot because my direct work group didn't change, but for the Iron Duke people, they were no longer with their representative. I am not sure what representatives were on night shift if any to be able to be kept informed and up to date with the process and any concerns or issues they may have had.
PN825
How many of these 24/7 production cycles occurred during the bargaining period, say, from early April through the end of May?‑‑‑I think it may have been two; one week in April, one week in May.
PN826
Were you provided with any assistance by the employer to help you out with the logistics of consultation?‑‑‑No.
PN827
MR FLETCHER: I think that question has already been asked.
PN828
THE DEPUTY PRESIDENT: Yes. The answer was "No" if that helps.
*** RYAN WAKE XN MR HARDIE
PN829
MR HARDIE: In hindsight - you're a smart fellow - how would you describe the balance of power in negotiating this enterprise agreement between the employer and the bargaining agents?‑‑‑Yes, it was definitely lopsided because of the scale of what they were trying to implement. If you just look at direct comparisons to our current enterprise agreement and the new one, there is very little of it that's the same, and with the addition of the individual contract, us as work group reps were trying to do our full time job on top of the EA work group rep was an additional thing that we weren't given time to. Aside from that, we had to try to work it around other commitments, our usual commitments. Whereas I would think BGC - well, I know I had a team of people that were able to work on it.
PN830
THE DEPUTY PRESIDENT: Is that any different from any EBA negotiation? Does that differ from a situation that would exist in many EBA negotiations? Is there something particular about the circumstances in this case that would differ from the general situation employees find themselves - bargaining reps find themselves in negotiating EBAs? Is there something peculiar that you're trying to - a point you're trying to make?
PN831
MR HARDIE: Yes, our submissions will be changing - - -
PN832
MR FLETCHER: I'm not sure the witness should hear what the submissions if he is going to make it.
PN833
MR HARDIE: I am trying to answer Her Honour's question. You know, you'd save a hell of lot of time if you would just stay seated.
PN834
THE DEPUTY PRESIDENT: He didn't actually do the courtesy of standing at that point.
PN835
MR FLETCHER: No, I didn't; sorry.
PN836
THE DEPUTY PRESIDENT: I'm just wondering where this evidence is going because the presumption would be, I think, that employee bargaining reps who work these type of shift patterns - and that's not an uncommon shift pattern in industry - do suffer that disadvantage against employers that are big commercial companies.
PN837
MR HARDIE: I don't disagree with that, your Honour, but there is other information that adds to that in terms of issues like removing information, misinformation, which I will come to.
*** RYAN WAKE XN MR HARDIE
PN838
THE DEPUTY PRESIDENT: If it is already addressed in the witness statement, you don't need to do it by oral submissions, so there is materials which you need to expand on.
PN839
MR HARDIE: Okay.
PN840
Can I take you to paragraph 42 of your statement? What do you believe the CEO's attitude is to workers freedom of association with unions?‑‑‑Yes, I don't know if I can really expand too much, but except for what I've said here is, like, in an onboarding video that you watch as part of your induction process, there is a video from the CEO, Greg Heylen. I can't remember a lot of detail about what's in it, but it definitely says something along the lines of they believe that issues between employees and management should be able to be resolved in-house without involving unions which, yes, that stuck out to me, I guess, having been new to the business and coming from my previous employer, Arrium, where they worked alongside the union more readily to resolve issues.
PN841
Before your meeting on 24 April, how much time did you get with your constituents before you went to that meeting?‑‑‑One working day. Because I was nominated on my second to last day of my roster, on my last day I held a short meeting with my direct work group to talk about some of the things they may want raised at the first consultative meeting. I wasn't aware at that time when the meeting would be, but I had annual leave for the first few days of my next swing which was when the meeting actually was held during that time and I came up in from my leave to attend the meeting. So, yes, I didn't - I just had the one - the one shift where I was able to access my work group.
PN842
Did you go there with a log of claims?‑‑‑I don't really understand what a log of claims was, but I went there with a list of issues that my work group had raised as things they weren't happy with or would like us to negotiate on.
*** RYAN WAKE XN MR HARDIE
PN843
Were those items properly considered?‑‑‑Yes, I don't really believe so. The meeting was pretty much open with management saying they wanted to just focus on the key issues that would prevent a 'yes' vote and the more minor things which I did end up still reading through my list because I wanted to make sure I had said them as I had told my work group I would raise their issues. But it felt like most of what you might consider more minor items were dismissed fairly quickly as to why they just need to be what they are. And issues around the pay rates in the proposed agreement being too low, whenever that got raised, they pretty much just said: "Just wait until you see it." they undertook to put it in a table so that you could accurately determine what the new rate was. It was very confusing because in the enterprise agreement that's proposed it states as a single time rate and then you needed to work out what all the penalties would be and shift loadings and overtime loadings and things like that. And at the moment we're on a flat hourly rate which is inclusive of all of those things. So I had sort of done a rough calculation in my head what I thought the new proposed rate would mean in those terms and thought, yes, it was a lot - considerably lower than what we currently get, but they said: "Just hold off any questions around that until you have got the full picture on that." So, yes, not much of what I raised was really considered.
PN844
You say that you received heaps of FAQs that were issued to you. Did you read them?‑‑‑I did read them, but the second and third ones came out in fairly quick succession while I was on leave, so the first time I saw those was at that first meeting and we quickly read through them. Well, as a group we were given time to read through and just pick out - people would just call out random questions. So we didn't actually read them out aloud. Everyone sort of at their pace thought - I skimmed through and read what stuck out to me. Later on I had a bit better read of it.
PN845
Throughout the process, did you form a view about who was constructing the questions?‑‑‑I did. As I put in my statement, I felt that I guess the way the questions were being taken and you can understand that there would be a lot of similar questions coming from different sites and different work groups and they would obviously want to address everyone's questions without having to repeat themselves over and over again. So I felt that they would sort of bundle questions together to come up with one that sort of covered - tried to cover everyone's concerns, but that sort of allowed the answers to be a little bit more vague and open to interpretation. And I also felt that some of the questions were probably put in there by BGC as things either to prompt us along the process or things they felt that we should know, yes.
PN846
What's your opinion as a bargaining agent about what workers generally thought would happen if they voted the agreement down?
PN847
MR FLETCHER: How can he give that evidence? That's just ridiculous. I mean it's complete opinion. It's got no probative value whatsoever. If the union wants to call the people, so be it. But I don't understand how he can give that evidence.
PN848
MR HARDIE: I know you don't want to hear the answer.
PN849
MR FLETCHER: I don't think the Commission needs to hear the answer either because it's not probative in any sense.
PN850
MR HARDIE: I am sorry, it's relevant, and this person is in a position - because he was an elected delegate and a representative - - -
*** RYAN WAKE XN MR HARDIE
PN851
THE DEPUTY PRESIDENT: Mr Hardie, rather than argue with Mr Fletcher, could you put the question again so I can make the determination because it's not Mr Fletcher you need to convince, it's me, with respect. What's the question, please?
PN852
MR HARDIE: What did you believe members were believing would be the outcome if they voted the proposed enterprise agreement down?
PN853
MR FLETCHER: I apologise, Deputy President, but which members? Is it confined? Is it everyone?
PN854
THE DEPUTY PRESIDENT: It is a very vague question. What he might be able to give evidence about is his work group or he might be able to give evidence about whose views he knew and why. But as it's currently framed, I am not going to be able to give any weight to it so there's not any point asking it. So if you frame a question in a way that I can give weight to it. It's a benefit to you.
PN855
MR HARDIE: In terms of feedback from your work group, how many bargaining agents did you have discussions with?‑‑‑Yes, after the second meeting we had an email list going around. There was probably around a dozen EA reps and some contact with some Western Australian reps.
PN856
Given your responsibilities as a bargaining agent, how did you assess given the feedback and the discussions you had with your work group and other bargaining agents, what the view was about the consequences of voting the agreement down?‑‑‑There was confusion around what may happen. People had concerns around the preserved conditions either disappearing or being amended as the next step in negotiation. I don't know if I would say people - people were concerned that there was an option of being put back on the award if we couldn't reach an agreement due to the case that had been pointed out to us that happened somewhere in Western Australia where they couldn't - the company couldn't reach agreement with their employees and went to the Commission and had the agreement removed and they went back to the award.
PN857
THE DEPUTY PRESIDENT: Which people told you this? Were they people in your work group?‑‑‑It was first mentioned in the CEO's PowerPoint presentation or roll out.
*** RYAN WAKE XN MR HARDIE
PN858
No, the people that told you what their concerns or what their confusion was. What the people were confused?‑‑‑People in my work group, other reps in Western Australia that I spoke to via phone conference. Questions came up in the FAQs around that and they didn't completely alleviate people's fears. They alluded to some potential changes that it didn't rule out sort of categorically either way. I don't think people necessarily felt we would get put back on the award, but we felt that we could be negotiating from a lot lower base if the preserved condition were to disappear. If you look at the actual EA that was on offer, it was pretty much a replica of the award anyway. So if the preserved conditions were to disappear then we were basically starting from the award as a negotiating point in the next round, if that makes sense.
PN859
MR HARDIE: Were you ever told that if there was a 'no' vote that your current agreement would have remained in force?‑‑‑Yes, I don't know. I can't really answer that. Only from what's in the FAQs where they've said whenever we have sort of asked would they disappear if there was a 'no' vote, they try and - they basically just go back to the point that they were working on getting a 'yes' vote. It doesn't really answer our question categorically.
PN860
THE DEPUTY PRESIDENT: How much longer do you think you have got, Mr Hardie?
PN861
MR HARDIE: Probably about 15 minutes, Deputy President.
PN862
THE DEPUTY PRESIDENT: What I am going to do is adjourn now for a luncheon break. We will reconvene at 2.15 and what I will do is put the reps at the Bar table on notice that we will continue with the hearing today as long as it's necessary to finish according to the schedule that was agreed between the parties. And so that if you need to make any necessary arrangements, you should do so over the lunch break so that we can continue uninterrupted. I will allow if Mr Fletcher requires it a break after you have finished your examination-in-chief so that he has the opportunity to respond or consider any material which has been raised. There will be, of course, the luncheon adjournment, so it will depend. How long a break you need will depend on how much longer you go after luncheon; okay?
PN863
MR HARDIE: Yes.
PN864
THE DEPUTY PRESIDENT: In the luncheon break, my associate will give to Mr Boncardo the copies of the witness statements that I have for Mr Whitlock and Mr Bolitho and just confirm which ones were actually going to get marked as exhibits.
PN865
MR BONCARDO: Certainly, your Honour.
PN866
THE DEPUTY PRESIDENT: I will make sure I have got the correct ones as exhibits. Is there anything else? I think that's all.
*** RYAN WAKE XN MR HARDIE
PN867
MR HARDIE: The witness is still under oath.
PN868
THE DEPUTY PRESIDENT: Yes, the witness - so what it means is that your oath is going to continue to apply. You shouldn't have any discussions with people in the luncheon break. It would be best not to be with people during the luncheon break because then people might make presumptions about you having discussions?‑‑‑Mm-hm.
PN869
And that your oath will remain until you return to the witness box until you are released after you have completed your evidence after your counsel has finished examining you and the other people, the respondent, is able to cross-examine you; okay?‑‑‑Okay.
PN870
Do you understand?‑‑‑Yes.
PN871
MR HARDIE: Your Honour, in fairness to myself, and I didn't say this before, when the parties were making arrangements for the proceedings, I did say to both my friends I'm sceptical about the timeframes you have set and I have made it clear to all parties that I have did have extensive examination-in-chief to go through. I am not - I would just like you - - -
PN872
THE DEPUTY PRESIDENT: I can only deal with what was put before me.
PN873
MR HARDIE: And I would apologise to my friend and the Commission for my terseness.
THE DEPUTY PRESIDENT: Thank you. We will adjourn until 2.15.
<THE WITNESS WITHDREW [1.04 PM]
LUNCHEON ADJOURNMENT [1.04 PM]
RESUMED [2.18 PM]
THE DEPUTY PRESIDENT: I hope everyone is refreshed from the luncheon break. You're still under oath.
<RYAN WAKE, RECALLED [2.19 PM]
EXAMINATION-IN-CHIEF BY MR HARDIE, CONTINUING [2.19 PM]
*** RYAN WAKE XN MR HARDIE
PN876
MR HARDIE: Ryan, can I take you to RW2 on your witness statement which appears to be a contract of employment with the date on it of 08/05/14, and you've attached that as the first employment contract - - -?‑‑‑That's correct.
PN877
You had since you started with AGC?
PN878
THE DEPUTY PRESIDENT: Sorry, Mr Hardie, what number was that?
PN879
MR HARDIE: Sorry?
PN880
THE DEPUTY PRESIDENT: Sorry, what number attachment was that?
PN881
MR HARDIE: RW2.
PN882
THE DEPUTY PRESIDENT: Thank you.
PN883
MR HARDIE: But then according to your statement at paragraph 129, you signed a new contract. What was the purpose of doing that?‑‑‑That was under instruction from BGC and that we needed to sign our new contracts of employment prior to the old EA expiring. It was explained as an administrative thing so that once the new EA had passed through Fair Work we could all have a smooth transition onto the new preserved rates and not the new agreement.
PN884
So who instructed you from management on this?‑‑‑I believe there was email communication that started with Martin Spibey and then our local management distributed that communication and gave me that reasoning as to why we needed to sign. The written communications just said there was a there's a deadline that the contracts have to be signed by, but when we questioned why that was when because the EA still hadn't passed through Fair Work so we wondered why we would need to sign still and that it's been as an administrative purpose.
PN885
Okay. Now you mentioned that normal expiry date on the current enterprise agreement had some relevance?‑‑‑Yes, it did in the way that of because we'd reached the point where the old agreement date was at the end. As soon as the new agreement passes I'm led to believe we will transition straight into the new agreement, whereas I guess if it had have passed through Fair Work two or three months ago it still wouldn't have taken effect until 31 August because the old agreement would be in place for that duration.
*** RYAN WAKE XN MR HARDIE
PN886
But we're beyond 31 August now, aren't we?‑‑‑Yes, that's correct, and I did go to my management with those concerns prior to signing and that a lot of my work group didn't feel comfortable in signing our new contract prior to this process playing out because we didn't want to in any way support the idea of an individual contract. But when it came to a choice between the new agreement or an individual contract then we definitely wanted the individual contract, but at this point in time we felt that it's still a choice between our current EA and an individual contract and we don't support the individual contract in that case. We prefer to keep our enterprise agreement which has been our argument all along.
PN887
THE DEPUTY PRESIDENT: But was it your understanding that you had to vote in favour of the agreement to get the conditions contained in the preserved contract?‑‑‑Yes, it played they went hand in hand. I think in one of the in the FAQ's it says that they are asking for a simplified national agreement and in return we will get our preserved conditions.
PN888
And if you didn't approve the agreement then you weren't going to get those entitlements?‑‑‑Well, that was not a hundred per cent clear. I think there was opportunities for BGC to alleviate concerns around that and they in the FAQ's and their answers sort of left the door open a little bit. It didn't categorically rule out changes, at least, to our preserved conditions.
PN889
Okay.
PN890
MR HARDIE: I'll take you to paragraph 71 of your statement?‑‑‑Mm-hm.
PN891
Can you tell us who was the SMR superintendent who stated that these new contracts, the type you signed on 31 August, were not different from the ones you signed at commencement, in your case the 8 May 2014?
PN892
MR FLETCHER: Deputy President, I think my friend is rephrasing paragraph 71 and he's then asking a question about it. I'm a bit concerned that we're sort of giving evidence on top of evidence, on top of evidence. I don't think that's that's not what it says.
PN893
THE DEPUTY PRESIDENT: Could you put your question again, Mr Hardie?
PN894
MR HARDIE: Sure. Yes, clearly I've got the wrong paragraph?‑‑‑You said paragraph 71?
*** RYAN WAKE XN MR HARDIE
PN895
Yes, it's not that paragraph?‑‑‑Well, it is that paragraph.
PN896
It was in your statement somewhere?‑‑‑Yes. It's in paragraph 71, towards the end. I've said that one of the superintendents present from SMR gives the example of the initial contract of employment that we'd already signed when starting our employment with BGC, saying that the new contracts are the same as that.
PN897
Well, so who was the - - -?‑‑‑I'm not a hundred - - -
PN898
Superintendent?‑‑‑He was from the other sites. I'm not a hundred per cent familiar with him. I believe his first name is Jeremy. I'm not sure what his last name was. And regarding that, like after he said that I sort of paused for a response from there was a HR person in the room and I thought they might clarify that. Nothing came and I had said that I believed that it was different because our original contract is underpinned or supported by the current enterprise agreement, whereas the new one wouldn't be. And I don't know if there was much talk beyond that. I think we'd sort of just moved past it. I don't believe that person intentionally misled us but probably thought they themselves were I feel that some of our supervisors and even superintendent level people didn't fully understand, themselves, for the what was being proposed, which led to a little bit of misinformation and communication.
PN899
But was he a bargaining agent?‑‑‑Well, I guess so. He was present at the bargaining meeting.
PN900
So he was at the bargaining agent's meeting, representing management?‑‑‑Mm-hm.
PN901
On 21 August - - -?‑‑‑April.
PN902
21 April? Now when did BGC start trying to get people to signed contracts, these new contracts?‑‑‑I can't remember exactly but it was after the (indistinct), like, was lodged. It was apparently written into the original well, it was written into the original draft contract of employment that it needed to be signed by 31 August. It might have been the first actually, originally. Yes, I believe it was the first. And then as that date approached we had a communication come out saying that they had just extended that date to 31 August, and that was sort of the first time most of us realised that there was a deadline or a date, even on the contract and I guess from that point on, that's when we started getting concerned about having to sign for that time rather than waiting for the result from the Commission.
*** RYAN WAKE XN MR HARDIE
PN903
So did they start trying to get those contracts signed before or after the vote?‑‑‑After the vote.
PN904
After the vote?‑‑‑Yep.
PN905
Was the vote declared?‑‑‑It was yes. It was declared and in as far as to say you've all voted and this was the result and now it will be lodged with Fair Work for approval.
PN906
So how did the process work? How did management go about getting people to sign up on these contracts?‑‑‑We were just asked to sign them and give them to your supervisor.
PN907
Right?‑‑‑And, yes, by that date and we were just reminded a couple of times as the date approached.
PN908
Were you handed a copy or - - -?‑‑‑Of the contract?
PN909
Yes?‑‑‑We were told if we'd misplaced there was a copy of the contract included in the final enterprise agreement offer and we were told to sign that if we still had it but if we'd misplaced it to let your supervisor know and they could arrange a new copy.
PN910
So when was the contract first provided?‑‑‑Prior to the like, with the on the day they gave us our voting packs with the final offer of the enterprise agreement.
PN911
Right. Now how did the employer represent to you as a bargaining agent, the legal status of the contract you signed in terms of an employee's ability to enforce it, the preserved conditions?‑‑‑I guess for much of the negotiation it was a bit of a grey area. There were times within it that we were led to believe that if they wanted to amend our conditions that there would be a consultation process, or it says in the FAQ's, discussion or consultation which when I pressed for a definition of those terms I was told it would be a process similar to what had recently been used when they had sought to amend conditions in our current enterprise agreement and I think what was confusing about that is in that instance it went to a vote and then the majority ruled. What wasn't clear was if that part of the process needed to still happen to change a contract of employment.
PN912
So there'd been a previous attempt by the employer to vary your current agreement, is that what you're saying?‑‑‑Yes, there was, like - - -
*** RYAN WAKE XN MR HARDIE
PN913
When was that?‑‑‑It was, I think, towards the end of last year where they had asked to remove a two per cent or two 2 per cent pay increases from the current agreement which were due to us.
PN914
And that was put as a variation to the current agreement?‑‑‑Yes, we voted to accept that as a variation to our current agreement but it was voted down so the pay rise stayed and we were shortly after that paid the increases.
PN915
So in summary what you're telling me is before the towards - - -
PN916
MR FLETCHER: Are we leading the witness?
PN917
MR HARDIE: No, I'm summarising what he's told me.
PN918
MR FLETCHER: It sounds like leading the witness, to me.
PN919
THE DEPUTY PRESIDENT: I think that's called leading. You put the question for the witness to answer when you're doing - - -
PN920
MR HARDIE: Did you say this process, this review, with that - - -
PN921
THE DEPUTY PRESIDENT: The trick is, you can't tell him the answer.
PN922
MR HARDIE: Yes. I think he already answered it but I just wanted to summarise it. But so were you asked to vote for a reduction in paying conditions by the employer?‑‑‑Yes, we were.
PN923
When?‑‑‑Late last year. I couldn't put a month on it.
PN924
THE DEPUTY PRESIDENT: I'm pretty confident I got the evidence the first time, if you don't want to rehash it.
PN925
MR HARDIE: And it was - - -?‑‑‑And it was voted down, yes.
PN926
THE DEPUTY PRESIDENT: It was voted down?‑‑‑Yes.
*** RYAN WAKE XN MR HARDIE
PN927
MR HARDIE: What was the scope of I mean, there's two agreements, there's the mining one and the maintenance one which was covered by you. Were both those agreements put up for variation?‑‑‑Yes, I believe so, yes. Yep.
PN928
And they were both voted down?‑‑‑That's correct.
PN929
And were you told what the vote was it a close count or - - -?‑‑‑I don't recall. They did tell us the results. Yes, I don't believe there was a great amount in it but I can't remember the exact split.
PN930
Okay.
PN931
THE DEPUTY PRESIDENT: What was the count, is the correct term, not was it a close count. Because that would be leading.
PN932
MR HARDIE: Yes. Right. What was the count? You don't know?
PN933
THE DEPUTY PRESIDENT: (Indistinct) to find the answer (indistinct). Pick from this one.
PN934
MR HARDIE: Yes. So did you think anything of the fact that you'd gone through that process and then three months later you're now in another enterprise agreement bargaining process initiate by the employer and a different approach was taken to that seems to get the same result?‑‑‑Yes, its well, it's my personal belief that that's one of the driving factors to go into an individual contract, that they would like to take that power out of your hands to amend our conditions in the future.
PN935
THE DEPUTY PRESIDENT: I suppose the advantage of written witness statements is that you don't see the leading bit.
PN936
MR HARDIE: Now you said that the company had given you grainy, grey advice on the enforceability of common law contracts and I think in your statement you said that you went off and checked with your union, the Fair Work Ombudsman and I'm not sure whether there was anyone else. That's correct, isn't it?‑‑‑That's correct.
*** RYAN WAKE XN MR HARDIE
PN937
And what did they tell you?‑‑‑That an individual contact doesn't hold the same weight as an enterprise agreement as far as we couldn't take issues with an individual contract to the Fair Work Commission as long as our rates and conditions were equal to or above what's in the award of what's in the current agreement.
PN938
Did you receive any of that advice in writing?‑‑‑Initially it was verbal. Like, I made a phone call to the Fair Work Ombudsman and got a verbal response. I shared that information with my other colleagues and reps. Shortly after that there was I had heard that another department was shown an excerpt of the Fair Work Act as proof that contracts were covered for that. When I questioned my superintendent around that he produced the same excerpt for myself and at that time I put a written inquiry into the Fair Work Ombudsman on line so that I could get an online response.
PN939
So who was your main supervisor?‑‑‑That was my superintendent, Ben Dyer.
PN940
Who?‑‑‑Ben Dyer.
PN941
Can you - - -?‑‑‑Ben Dyer, D-y-e-r. I believe, in fairness to him - - -
PN942
No, no, that's fine. I only asked you his name?‑‑‑Yes.
PN943
So let's got to RW19.
PN944
THE DEPUTY PRESIDENT: I mean, this is all evidence that's already in the - - -
PN945
MR HARDIE: Yes.
PN946
THE DEPUTY PRESIDENT: I'm just conscious of the time and I don't want to keep the parties late tonight.
PN947
MR HARDIE: I haven't got much more. Now just to be clear, you said that Ben Dyer produced this excerpt from the South Australian Fair Work Act 1994 and used section 14 for the purposes of convincing you that common law contracts are enforceable for (indistinct) employees?‑‑‑(No audible reply)
*** RYAN WAKE XN MR HARDIE
PN948
What did you think when he gave you that?‑‑‑Well, I had doubts obviously because I'd had the verbal inquiry already and I could see that the point he was showing me within the Act could be interpreted that way because it does mention the courts. But I suggested to him at the time that I would like to seek further advice on the meaning of that because it's still open to interpretation and I don't understand it.
PN949
And you say the AMWU at paragraph 100 of your statement sent you an email?‑‑‑Yep.
PN950
Which is attached at RW24 of your statement, headed, "Danger, danger, danger, vote this down". That came from Steve McMillan who's your organiser, is he?‑‑‑That's correct.
PN951
And it's dated 24 May. Then you say that you put that email up in the crib room?‑‑‑Yes, but that's well, that's not quite correct. I did forward that email onto all the other bargaining representatives that I had email addresses for and I showed it to my direct work group. I believe it was put in the crib room via one of the other bargaining people at the Iron Duke site which yeah, that's in my written into my statement.
PN952
THE DEPUTY PRESIDENT: Did you forward it to the West Australian bargaining reps?‑‑‑There was two I think I had two email addresses for the Western Australian reps and this is actually, one of them is the reason I went to the union for this advice and it's on the email chain. You can see that I had correspondence with Aaron Maurice. He was one of the West Australian reps that I spoke to in a phone conference call and I was trying to get something in writing from a legal perspective for him to share with his people over there. I had already put in my inquiry to Fair Work but I was still waiting for a response and time was of the essence, being late May and already going to a vote. See, I got this correspondence back first from my union's lawyer's perspective so I forwarded it that to the yes, to the two people that I knew over there.
PN953
MR HARDIE: You said they were representatives. Are you sure those people were bargaining agents?‑‑‑Not really. All I know is they were people I spoke to on the phone after asking if I could speak to some West Australian reps.
PN954
Okay. Do you know if Western Australia actually appointed any bargaining reps?‑‑‑I can see that similarly to the representatives on my site, we're not listed as reps, yeah, in the Fair Work submission.
PN955
How many proper discussions did you have with the Western Australian bargaining agents?‑‑‑I had one - - -
*** RYAN WAKE XN MR HARDIE
PN956
MR FLETCHER: That's a bit of a loaded question then, a proper discussion shouldn't you be asking if they had any discussions?
PN957
MR HARDIE: How many legitimate discussions did - - -
PN958
MR FLETCHER: Well, it's the same thing again, isn't it?
PN959
MR HARDIE: How many discussions of more than three minutes, or five minutes, did you have with bargaining agents in Western Australia?
PN960
THE DEPUTY PRESIDENT: Perhaps I can help.
PN961
MR HARDIE: Happy with that?
PN962
THE DEPUTY PRESIDENT: How many discussions, how long were they?‑‑‑I'm all right for that?
PN963
Yes?‑‑‑Yes, well, I had - - -
PN964
Yes. Yes, you can answer my questions, yes?‑‑‑Well, I had two two phone conference calls with each site, with three reps each time, once prior to knowing while it was an active negotiation and once after, between BGC announcing we were going to vote and actually voting for the yeah, I spoke to them once during and once, what I would determine as after negotiations. Different reps each time due to their different roster cycle not lining up with ours.
PN965
I presume the parties will make some submissions at some point on what the employer's obligation is to collective bargaining by individual bargaining reps?
PN966
MR HARDIE: I couldn't hear.
PN967
THE DEPUTY PRESIDENT: I presume at some stage there will be some submissions about what the employer's legal obligation is to assist the collective work of the individual bargaining reps to facilitate them acting collectively. Because I think that's what you're trying to suggest, that there's some obligation for the employer to assist the individual bargaining reps to act collectively. Is that correct? Is that where there's evidence is going?
*** RYAN WAKE XN MR HARDIE
PN968
MR HARDIE: Yes, well, it comes under the general auspices of, I think, good faith bargaining. I guess our concern is the evidence shows that misleading information on a very critical there's no doubt that the we keep on repeating evidence of misinformation over critical aspects being provided. The workplace delegate goes to a lot of trouble to actually get correct information which - - -
PN969
THE DEPUTY PRESIDENT: Yes. No, I'm not - - -
PN970
MR HARDIE: He has barriers sharing interstate.
PN971
THE DEPUTY PRESIDENT: Yes, I've got no difficulty with that line of questioning about testing whether the information they were given is correct or incorrect or misleading or deceptive. I was more interested in there's been a fair bit of evidence that you've sought to lead which seems to be suggesting that your submission is that the employer has an obligation to help these individual bargaining reps to act collectively. So I was wondering whether that's the submission you're trying to make or not.
PN972
MR HARDIE: I'm really saying that it's more than an employer's responsibility not to exacerbate the problems caused by misinformation, by putting out misleading information.
PN973
THE DEPUTY PRESIDENT: Okay, so it's an element of the misleading argument rather than a point of its own?
PN974
MR HARDIE: Well, it feeds in. So in regard to sending out the, "warning, warning, warning", email, "treat with care", which is the legal advice provided by the AMWU, you say in your statement at paragraph 100 that Ben Dyer came and talked to you about using work emails to get that information out?‑‑‑That's correct.
PN975
What did he say?‑‑‑He - - -
PN976
You're not allowed to put out union information?‑‑‑He cautioned me - - -
PN977
THE DEPUTY PRESIDENT: You should have just stopped before you (indistinct).
PN978
MR FLETCHER: Okay, it's - - -
PN979
THE DEPUTY PRESIDENT: There's one bit too much in that question there.
*** RYAN WAKE XN MR HARDIE
PN980
MR FLETCHER: Okay, Deputy President, it's been funny until now but it's not funny any more.
PN981
THE DEPUTY PRESIDENT: Yes.
PN982
MR FLETCHER: This is you're going to have to seriously question the weight of the evidence that's being given in these circumstances.
PN983
THE DEPUTY PRESIDENT: All it's doing, I'm afraid is - - -
PN984
MR FLETCHER: Destroying it, yes.
PN985
THE DEPUTY PRESIDENT: It will undermine your evidence and that would be unfortunate because your witness is actually quite capable of giving the evidence and if you stopped in that that last sentence, it's a perfectly good example. If you'd stopped where you took a breath, you would have had a really good bit of evidence on transcript. But you kept going and then it takes away any credibility I can give to that witness' evidence, so I think the clue is, when you take a breath, stop then. Don't keep going till you've thought about it.
PN986
MR HARDIE: Yes. Okay, what did Ben Dyer say to you?‑‑‑He cautioned me on distributing information that could be looked at as scaremongering. He said it was strongly worded and I should have maybe tried to summarise it in a less strongly worded manner, and also on using my work email address to distribute union materials.
PN987
So was it only union material that you weren't allowed to distribute?‑‑‑Well, that's the only time I was spoken to about a communication I had distributed. So did he offer to provide alternative means for you getting out information from sources other than management?‑‑‑No, he just suggested that I should maybe have consulted him first before sending it out, or maybe have considered rewording it so it wasn't as strongly worded, but I when I explained my reasons I wanted it to be from a neutral or a third party, I wanted it to come from a third from a legal perspective. I didn't want it in my words. I'd already told people in my words what I thought but I was trying to convey a legal definition of what they were offering, so I wanted to send it out unmodified as it was and he took that on board and that's the last I heard of it.
*** RYAN WAKE XN MR HARDIE
PN988
THE DEPUTY PRESIDENT: Was any disciplinary action taken against you?‑‑‑No. No, initially he said that my project manager may want to speak to me about it, as well, but when I gave my explanation he went to the project manager and came back to me and said that the project manager was happy with that and we left if there.
PN989
All right.
PN990
MR HARDIE: Now I'll go to paragraph 119. When you made that prediction of the distribution of votes on the enterprise agreement had you been privy to any reports of the voting at the various sites?‑‑‑No.
PN991
On what basis do you want to expand on the basis of your prediction that there'd be a heavily loaded yes vote in WA?‑‑‑Just based on my correspondence with the West Australian reps. The last time I spoke to those sites they suggested that there would be a majority yes vote from their sites and they both sites mentioned that we need to be careful about pushing back too much or we could all end up on the award. I'm not I won't feed into why they felt that way but both sites mentioned that in my conversations with them and they both felt that the majority of their sites would probably be in favour for the agreement.
PN992
Did you believe they genuinely believed that if they voted no, that they'd go back on the award?‑‑‑I believed they felt that there was a chance that it could happen and I also believed they thought that issues that we had with the reserve rates had been alleviated with the last correspondence sent out around it was suggesting that it was covered and it would be an issue resolution attached to the correspondence and also suggesting that an amendment would be made to the individual contract around the consultation to make changes.
PN993
Thank you. At this point, Deputy President, I'd like to tender as evidence the statistical analysis of the worksites for your eyes.
PN994
THE DEPUTY PRESIDENT: Is this the document you were - - -
PN995
MR FLETCHER: I don't object to the tender, Deputy President, because I think Mr Hardy's made it clear that it's been tendered for your eyes, I read, as confidentially. So I don't mind that the respondent doesn't object to the document being tendered as a confidential exhibit reviewed by you. It can form part of your decision-making but we would request that the document remain confidential and that the numbers referred to in the document other than the overall vote result which was published and provided as part of the application process, that those numbers remain confidential.
PN996
THE DEPUTY PRESIDENT: Okay. Do you - - -
*** RYAN WAKE XN MR HARDIE
PN997
MR HARDIE: Your Honour, I've been careful to comply with the undertaking that I gave, notwithstanding that I see no reason for the material to be confidential. You will remember that we asked for orders for this to be produced. My friend agreed to produce it.
PN998
THE DEPUTY PRESIDENT: Yes, on a confidential basis.
PN999
MR HARDIE: And if we take - - -
PN1000
THE DEPUTY PRESIDENT: Is there any reason why it needs to be other than confidential? Is there any reason - - -
PN1001
MR HARDIE: Well, I can't see I would have thought that in the interests of transparency. I can't see anything commercial or a breach of privacy or anything. The only motivation that I can think of that my friend might have, and he can speak for himself, is trying to hide it from the troops. You know, that's for him to argue. I don't support I've complied with the request simply to get the documentation but I can see absolutely no reason why the Commission should decide it's so sensitive that it ought to be confidential. And I can line up a heap of precedents for that.
PN1002
THE DEPUTY PRESIDENT: Mr Fletcher, why do you say it should be kept confidential?
*** RYAN WAKE XN MR HARDIE
PN1003
MR FLETCHER: The short submission, Deputy President, is that it's not the role of these proceedings to do the union's market research for them about the outcome of the vote and these are clearly contentious matters. You've heard evidence about a particular distribution of support and not support for the agreement. The breakdown that has been tendered to you goes down to a location and an area level and in some locations and areas there are a very small minority of people who have voted one way or another and the applicant doesn't want to be in a position where it need make no difference to the outcome of your decision. You can still make a decision and not refer to the numbers. You can still be informed by the document and not refer to the numbers. But the applicant doesn't want to put its employees in a position where a civil war is started between areas of the business because some people are strongly in support of this agreement and other groups of people are strongly against this agreement, particularly in circumstances where this is not the only time that these parties will be bargaining. They'll be hopefully this agreement is approved will be bargaining again in less than four year's time. So to provide the breakdown of results where people can reach conclusions about who might have voted yes and who might have voted no, and target behaviour against people who vote yes or no because they voted yes or no, we think poses an unnecessary risk to the harmony of the workforce and in circumstances where really, you can inform yourself, you can consider the evidence, you can make a decision you don't need to refer to the actual numbers in your decision. So in my submission there's no compelling reason to risk those issues when everything that the union wants to achieve can be achieved through the course of action that we've proposed.
PN1004
THE DEPUTY PRESIDENT: Did anyone else want to make submissions on my concern, Mr Hardie, is for one particular site the numbers are quite low. A small number of people voted and my concern would be that that might result in those people being able to be identified and there be some consequences to them. The bigger sites where the bigger numbers are at, I don't think that's so much of an issue. What's important is obviously the data, the breakdown is important in my reaching my decision. My concern is that if it's a public document, particularly for one site, that could expose people to some adverse consequences and that then would impact on your members being active or people who weren't who voted the other way being active. So what I will do is I will mark the document as confidential. I'll admit it and mark it as confidential on that basis. If the numbers had been bigger, I think, yes, your argument would hold but I am concerned about one particular site just because their numbers are so small and on that site.
PN1005
MR HARDIE: Did you say that was A8?
PN1006
THE DEPUTY PRESIDENT: A8, yes. No, actually, A8 will be Mr Wake's witness statement which I haven't marked.
PN1007
MR HARDIE: Well, I haven't tendered it yet.
PN1008
THE DEPUTY PRESIDENT: Yes, well - - -
PN1009
MR HARDIE: But I can - - -
PN1010
THE DEPUTY PRESIDENT: Would you like to tender that first because in my - - -
PN1011
MR HARDIE: Okay, I'll tender that. Yes, I'll keep the list - - -
PN1012
THE DEPUTY PRESIDENT: In my beautiful list of exhibits - - -
PN1013
MR HARDIE: I'll keep the list organised, so yes.
*** RYAN WAKE XN MR HARDIE
PN1014
THE DEPUTY PRESIDENT: So A8 will - - -
PN1015
MR HARDIE: If I could tender Mr Wake's - - -
PN1016
THE DEPUTY PRESIDENT: Witness statement.
PN1017
MR HARDIE: Witness statement.
THE DEPUTY PRESIDENT: And it's attachments 1 to 25, is A8.
EXHIBIT #A8 WITNESS STATEMENT OF RYAN WAKE WITH ATTACHMENTS 1-25
PN1019
THE DEPUTY PRESIDENT: And so A9 will be the - - -
PN1020
MR HARDIE: Distribution - - -
THE DEPUTY PRESIDENT: Yes, the declaration of result.
EXHIBIT #A9 (CONFIDENTIAL) DECLARATION OF RESULT
PN1022
MR HARDIE: I have no further questions for Mr Wake.
PN1023
THE DEPUTY PRESIDENT: Thank you. Do we have a copy of that in the materials?
PN1024
MR HARDIE: No, no, that was provided.
PN1025
THE DEPUTY PRESIDENT: Okay. Can I have that version then and then I'll mark that one, thank you.
PN1026
MR HARDIE: That's the original documentation.
PN1027
THE DEPUTY PRESIDENT: Okay. Mr Fletcher, would you like a brief adjournment to consider that question that's occurred since the luncheon break or are you able to progress?
*** RYAN WAKE XN MR HARDIE
PN1028
MR FLETCHER: I would, Deputy President, just a very short adjournment.
PN1029
THE DEPUTY PRESIDENT: Okay, now long - - -
PN1030
MR FLETCHER: Fifteen minutes?
PN1031
THE DEPUTY PRESIDENT: Ten, 15 minutes?
PN1032
MR FLETCHER: Fifteen minutes, if that's okay.
PN1033
THE DEPUTY PRESIDENT: Okay, so if we reconvene at 3.15?
PN1034
MR FLETCHER: Yes.
PN1035
THE DEPUTY PRESIDENT: Is that convenient for everybody?
PN1036
MR FLETCHER: And Deputy President, I may in the 10 minute break, there's a document that we may wish to tender and I may need to put to Mr Wake based on the additional evidence that he's given this morning. It's a short document. Is the most convenient way to get that from the electronic form into your hands, to have it emailed to chambers and then printed?
PN1037
THE DEPUTY PRESIDENT: You've got access to chambers' inbox, haven't you? Yes, so if you email it to my chambers' inbox - - -
PN1038
MR FLETCHER: Yes.
PN1039
THE DEPUTY PRESIDENT: Crystal will be able to access it.
PN1040
MR FLETCHER: Thank you. And then we'll obviously need copies, enough copies to go around to the parties.
PN1041
THE DEPUTY PRESIDENT: Yes. Can you arrange copies? The other thing which we were going to do after lunch is also let me know what documents the parties wanted to, if any, exclude from the bundle that Mr Fletcher originally - - -
*** RYAN WAKE XN MR HARDIE
PN1042
MR BONCARDO: Your Honour, so far as we are concerned and I can't speak for my friends, there are documents in here that I alluded to earlier today which your Honour would place little if any weight on in terms of communications or handwritten notes by unnamed, unknown people. They are, in my view, strictly irrelevant but in the interests of expediting matters and given perhaps the manner in which some evidence is being presented in this matter, I'm not going to press objections to them. But I do want it noted that in my view and in the CFMEU's view there are a host of documents that ought be accorded little if any weight and if my friend refers to them in submissions. I'll certainly point that out to your Honour.
PN1043
THE DEPUTY PRESIDENT: Okay. If you could provide me with a list of those documents - - -
PN1044
MR BONCARDO: Certainly. Certainly.
PN1045
THE DEPUTY PRESIDENT: That you propose to have that should have less weight - - -
PN1046
MR BONCARDO: Yes.
PN1047
THE DEPUTY PRESIDENT: Or discounted weight provided to them so that we're clear about what are in contention.
PN1048
MR BONCARDO: Certainly, your Honour.
PN1049
THE DEPUTY PRESIDENT: And that makes sure when I write a decision - --
PN1050
MR BONCARDO: Certainly.
PN1051
THE DEPUTY PRESIDENT: It's not inconsistent with rather than a generic - - -
PN1052
MR BONCARDO: Yes.
PN1053
THE DEPUTY PRESIDENT: Generic thing that we don't like some of it.
*** RYAN WAKE XN MR HARDIE
PN1054
MR BONCARDO: Yes. No, I understand, your Honour.
THE DEPUTY PRESIDENT: Okay, thank you. We'll adjourn till 3.15.
<THE WITNESS WITHDREW [3.08 PM]
SHORT ADJOURNMENT [3.08 PM]
RESUMED [3.21 PM]
<RYAN WAKE, RECALLED [3.21 PM]
CROSS-EXAMINATION BY MR FLETCHER [3.21 PM]
PN1056
MR FLETCHER: Mr Wake, I appreciate you've been there for quite a while and I'll try and get through things as quickly as I can. I just wanted to start by and I'm actually going to start at the end and move backwards rather than start at the beginning and move forwards because it just helps me in terms of recalling what you said in the last segment. And the issue that I wanted to ask you about relates to the advice that you got from the AMWU and it's been called "advice". I mean, the language is fairly emotive but this is the if I take you to RW23?‑‑‑No, it wouldn't be that.
PN1057
Is that there in - - -?‑‑‑That's emails.
PN1058
Yes, it's an email from Steve McMillan to you?‑‑‑Yes.
PN1059
The one about just saying, "Danger, danger, danger". And would you agree that that's not that's not particularly detailed legal advice?
PN1060
THE DEPUTY PRESIDENT: Sorry, what was it, 23?‑‑‑It's 24, actually, so - - -
PN1061
MR FLETCHER: Sorry, 24, my apologies, page 1. Would you agree that that's not a particularly detailed legal advice?‑‑‑Yes.
PN1062
But it addresses, in your estimation, the concern that we had about the issue of the agreement versus the contract, in terms of where the conditions sat. Is that a fair estimation?‑‑‑Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1063
Yes, so it wasn't detailed but it told you that or it addressed the issue about something that you described as you've used this in your statement but you've also used it on the stand today. You said it was about taking something to the Fair Work Commission. Can you remember using those words? So if you had an issue about your agreement you could take it to the Fair Work Commission. Can you remember saying something along those lines?‑‑‑Yes.
PN1064
Yes. But you were also asked by Mr Hardie, you were asked also about enforcing the agreement, can you remember being asked about enforcing the agreement?
PN1065
Yes?‑‑‑Yes.
PN1066
In the course of the advice that you received from the union and from the Fair Work Ombudsman did anyone explain to you the difference between disputation and enforcement?‑‑‑Well, I guess in my separate inquiries it was my verbal inquiry to Fair Work, it was put in words that Fair Work or the Commission could not hold an organisation to an individual contract, they could only hold them to an enterprise agreement or the award.
PN1067
And the words you are using are "hold them"?‑‑‑Yes.
PN1068
And this is the point about enforcement versus disputation. Did anyone explain to you that the only place that you can enforce an agreement in the sense of let's use an example, let's say you've not been paid according to the agreement, so the agreement says that you have to be paid a certain amount and you wish to be paid that amount. Did anyone explain to you that for both the agreement and the contract the place where you need to do that is the court?‑‑‑Yes, the Commission and well, I believe the union answer, as well, maybe. I I'd say that the Commission's in writing reply - - -
PN1069
Yes?‑‑‑Which I can probably - - -
PN1070
Yes, that's - - -?‑‑‑Well, let's find that.
PN1071
It's actually the Fair Work Ombudsman, is that right, rather than the Commission?‑‑‑Yes. Sorry, my terminology is not - - -
PN1072
That's okay. I've not - - -
PN1073
THE DEPUTY PRESIDENT: Plenty of lawyers get it wrong?‑‑‑Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1074
MR FLETCHER: That's right, that's absolutely right. So - - -?‑‑‑Yes, so that's attachment - - -
PN1075
Attachment - - -?‑‑‑No. 20.
PN1076
Twenty?‑‑‑So the response I got on line - - -
PN1077
Yes?‑‑‑"Hi Ryan, thank you for your time today. As discussed, if issues arise regarding the terms of an EBA the Fair Work Ombudsman and Fair Work Commission are able to assist with this".
PN1078
Yes?‑‑‑"If there are changes or concerns regarding the terms of an individual or common law contract where conditions are above those within the applicable or underlying industrial instrument. These would need to be erased via seeking legal advice and potentially taking the matter to a Small Claims Court". So I took from that that that's, if you've got an issue or a dispute, that's where it would need to be resolved within an individual contract.
PN1079
Can I ask you, the reference in there to "issues", did you understand that to mean, issues in the sense of a grievance or a disagreement or a misunderstanding, misinterpretation of how the agreement applies, or did you interpret issues in that advice as referring to, I've been underpaid and I want to recover my money?‑‑‑Well, I guess our main concern was around the contracts, changes being made to the individual contract without employees agreeance, so that that's the sort of main issues we were concerned about.
PN1080
Yes. And did you have an awareness that if an employer acts contrary to an enterprise agreement, let's say for example, now, so as of now, do you accept that the mining agreement 2012 applies to your employment?‑‑‑Yes.
PN1081
And will continue to apply until it's hopefully replaced by this agreement, but it could be varied but it requires a positive step to change your agreement from where it's at, at the moment, do you accept that?‑‑‑Yes.
PN1082
So if you, for argument's sake, are not receiving payment that you believe you are entitled to under that agreement, is your understanding that you go to the Fair Work Commission to recover that money or to the court?‑‑‑Well, my first step would be to go to my union.
PN1083
Yes, and then which - - -
*** RYAN WAKE XXN MR FLETCHER
PN1084
THE DEPUTY PRESIDENT: Well done.
PN1085
MR FLETCHER: That's a good answer.
PN1086
THE DEPUTY PRESIDENT: Good answer.
PN1087
MR FLETCHER: That's a very good answer.
PN1088
MR HARDIE: Absolutely.
PN1089
MR FLETCHER: I think everyone in the room thinks that's a great answer. Would you expect the union to then make an application in the Fair Work Commission or to make an application in the court to recover the money?‑‑‑I don't know.
PN1090
THE DEPUTY PRESIDENT: I think that's really a technical question that he would never ever have to determine.
PN1091
MR FLETCHER: Yes. Yes.
PN1092
THE DEPUTY PRESIDENT: He would be guessing.
PN1093
MR FLETCHER: Yes. I think that's all - - -
PN1094
THE DEPUTY PRESIDENT: Whatever evidence he's going to give you, he's guessing.
PN1095
MR HARDIE: Okay, and I think that's what I'm trying to establish. So the contention I want to put to you is that the AMWU may have itself misrepresented to you where you can recover amounts that you're entitled to under a contract and an enterprise agreement?‑‑‑No, I wouldn't agree with that.
PN1096
Okay. So you relied on their advice?‑‑‑In conjunction with the Ombudsman's advice, yes.
PN1097
Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1098
THE DEPUTY PRESIDENT: I think the problem with that range of questioning then was that the witness evidence was that the concern was the agreement can't be changed without the oversight of a body whereas a common law contract could be.
PN1099
MR FLETCHER: Yes.
PN1100
THE DEPUTY PRESIDENT: You then had a range of questions which queried where you would bring breaches of contract or breaches of agreement which is then a technical question for the witness - - -
PN1101
MR FLETCHER: Yes.
PN1102
THE DEPUTY PRESIDENT: Which he wouldn't necessarily know about but that wasn't the evidence he was giving.
PN1103
MR FLETCHER: No.
PN1104
THE DEPUTY PRESIDENT: The evidence he was giving was that is this correct, that you were concerned about the agreement being changed but there's a mechanism to protect agreements being changed but there wasn't a mechanism for common law contracts to be changed?‑‑‑Yes, that's correct.
PN1105
So I'm not sure the questioning then is relevant to the evidence you gave - - -
PN1106
MR FLETCHER: Yes. No, I understand what you're saying, Deputy President. I think the point, and this is - - -
PN1107
THE DEPUTY PRESIDENT: Maybe I've missed your point.
PN1108
MR FLETCHER: You may have, and I think I can probably address it in submissions.
PN1109
THE DEPUTY PRESIDENT: Okay.
*** RYAN WAKE XXN MR FLETCHER
PN1110
MR FLETCHER: But I need to tackle it because there's an allegation of sort of misleading communications and it will be our submission that the company's communications were anything but misleading. They were quite accurate in what they said.
PN1111
THE DEPUTY PRESIDENT: Right. Yes.
PN1112
MR FLETCHER: And so I need to test the accuracy of those communications with Mr Wake. But what I might do is actually take him to what the company advised so if we can take you to in your material you've got if you go to RW21, I believe it is, which is the letter that went from Martin Spibey to the consultative committee?‑‑‑Yes. Okay.
PN1113
He says there, "Let me reassure you that all conditions of employment including those contained under contracts of employment" are we on the same you're on the same page as me?‑‑‑Yes.
PN1114
Yes. "Let me reassure you", so this is a letter that you got sent on 17 May in your context as a consultative committee "Let me reassure you that all conditions of employment including those contained under contracts of employment protected by employment legislation". So he doesn't say which employment legislation, he just says "employment legislation", do you agree with that?‑‑‑I do.
PN1115
Yes. And he says, "Details of the relevant legislation is contained under our company's issue resolution procedure. A copy of this is attached for your reference". And then he goes on to say so that's sort of a reference to his interpretation of the legal position?‑‑‑Mm-hm.
PN1116
He then says, and this is not an interpretation of the legal position, this might be considered a commitment or a promise or something that he's trying to give you some reassurance about. He then says, "Further, it will never be, or has ever been, our intention to breach these legislative protections. This will also be a breach of our charter regarding teamwork and mutual respect". So he's saying to you there, "This is how I think it works, and in any event, under our charter we want to honour that". Do you agree with that?‑‑‑Yes.
PN1117
Yes, and I mean, you've made it clear that and I think the last paragraph of your statement you talk about trust from your personal perspective you didn't necessarily trust the proposal that was on the table because of the concerns that you've already talked about, is that - - -?‑‑‑That's correct.
*** RYAN WAKE XXN MR FLETCHER
PN1118
Yes. And so if I could just move on, in that paragraph he talks about the legislation and then he attaches for your reference a copy of an issue resolution procedure?‑‑‑Mm-hm.
PN1119
And that's over the page, page 2 of two, and then on the second page of the issue resolution procedure he says, or sorry, the issue resolution procedure says - there's a reference up there to issues under the enterprise agreement, do you see under 3.1?‑‑‑Yes.
PN1120
And that talks about referring a matter to conciliation or arbitration by the Fair Work Commission, yes?‑‑‑Yes, but I would say it says, "General issues under a contract of employment", which I think is mistaken.
PN1121
Yes, that's right and I was going to take you to that next. And what they refer to there is two pieces of state legislation because at the moment my understanding is that BGC Contracting has sites in Western Australia and in South Australia and the relevant South Australian legislation is mentioned there. I think the case of Western Australia it's referred to as denied contractual benefits legislation but in South Australia there is what's described as the Fair Work Act 1994 South Australia and that's the one that's attached at RW19?‑‑‑Mm-hm.
PN1122
Yes, and that was the extract that I think was circulating at the time of the discussions around this issue?‑‑‑That's correct.
PN1123
Yes. And you can see there that under 14 it says, "Jurisdiction to decide monetary claims", and it says that section 14, "The court has jurisdiction to hear and determine monetary claims of the following kind:- a claim for a sum due to an employee or former employee from an employer or former employer under", and then it says, "This acts (indistinct) award enterprise agreement or", and the key word is, "contract of employment". So I think you'd read that and you saw there was a reference there to a court, so obviously it wasn't a refer to the Commission, but the company had provided its own position as to why it thought that there was legislation that regulated contracts and you have received advice from the union and advice from the company and you made your own mind up based on considering all of the issues, is that right? Sorry, long question?‑‑‑It's a long question.
PN1124
That was a very long question.
PN1125
THE DEPUTY PRESIDENT: I don't even know what the question was.
PN1126
MR FLETCHER: Sorry, let's rewind it. So can you see that reference there to "contract of employment" in that extract?‑‑‑I can, yes.
*** RYAN WAKE XXN MR FLETCHER
PN1127
And you understood that what Martin Spibey was talking about in his letter was that if you needed to make a claim in relation to the enforcement of a contract that's how you'd do it?‑‑‑Yes, it yes and no because I guess I'm still struggling a little bit with the terminology.
PN1128
Yes?‑‑‑But if that's what he's answered then he's not answered our question. Our query was really around making changes to the agreement without our agreement, if that makes sense to you.
PN1129
But I put it to you that there's nothing the Fair Work Commission can do to stop a company from making changes to an agreement. If there was a change made to an agreement the union would have to take the company to the court because it would be a breach of the agreement?‑‑‑No.
PN1130
MR BONCARDO: I object to that question.
PN1131
THE DEPUTY PRESIDENT: You could vary - - -
PN1132
MR FLETCHER: I'm happy to make that submission when the time comes.
PN1133
THE DEPUTY PRESIDENT: Yes.
PN1134
MR BONCARDO: These are esoteric matters of industrial and employment law.
PN1135
MR FLETCHER: Which went to the decision that was made at the time.
PN1136
MR BONCARDO: I'm not sure Mr - - -
PN1137
THE DEPUTY PRESIDENT: This witness is not going to be able to give you any answer to that.
PN1138
MR FLETCHER: Yes, okay. That's fine.
PN1139
THE DEPUTY PRESIDENT: With respect.
PN1140
MR FLETCHER: Yes, that's fine.
*** RYAN WAKE XXN MR FLETCHER
PN1141
THE DEPUTY PRESIDENT: I just don't want to give an answer to it, as well, so don't feel bad?‑‑‑You can stop all questioning for me if you like.
PN1142
What's relevant is what you understood and there's a distinction between what the legal position might be.
PN1143
MR FLETCHER: Do you accept the contention that there could be different views about how your concerns might be addressed?‑‑‑Yes.
PN1144
That there wouldn't be one right or wrong answer and that several different answers were provided to you from several different sources?‑‑‑No well, I don't think that's quite the case. If the question is understood there's a our concern was, we didn't want we wanted an agreement where it could only be changed by a majority vote and we had the backing and support of the Commission. That is what our concerns were and there was only one the question put forward is, how can our conditions in our individual contracts be changed, and there's only and the constant alluding to previous processes also alludes to the majority vote that took place in the past which wouldn't necessarily have to occur to change an individual contract, in my understanding.
PN1145
No one, in all of the communications, no one Martin Spibey, none of the FAQ's, none of the communications represented to you that the only way you could change sorry, that you could change preserved conditions by a majority vote?‑‑‑No, that's it didn't, and it didn't say it didn't say that.
PN1146
Yes, no one ever said that to you?‑‑‑It didn't say either way and that's my argument.
PN1147
Yes, but no one said to you no one said to you, a preserved agreement can only be changed by a majority?‑‑‑No, they said it would we would use a similar process to what is being used in the past. So you had to make your own assumptions of what that meant.
PN1148
Yes, okay. So you were acutely aware that and you are aware now that your enterprise agreement continues to apply to you and that what you've got now is a package of conditions, so you've got your enterprise agreement and you've got your contract of employment. Is that your understanding of how your current employment works?‑‑‑Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1149
And the proposal that was being put to you by the company was that the company wanted you to accept a significant reduction in what was in the agreement but to soften the blow of that change, so well, first of all do you accept, and I think it's clear on the face of your evidence, that you had a stake in what was going on and that you were concerned because of the reduction in your agreement, do you agree with that?‑‑‑Yes.
PN1150
Yes, that was the major concern. And I think you mentioned we'll come to how you approached the bargaining in a moment but your main concern was that previously you had an agreement where the terms and conditions in the agreement were here, the terms and conditions in the contract were her, and you were concerned that the content of what was in the contract was going to expand so there was going to be more in the contract and less in the agreement. Is that a fair estimate of your major concern?‑‑‑Yes.
PN1151
And that's why you were opposed to the agreement being made, is that right?‑‑‑Not only but largely.
PN1152
What were your other opposition to the agreement being made?‑‑‑This is only a personal view.
PN1153
Yes?‑‑‑Just the fact that so many things were taken out of the actual agreement, even if it doesn't apply to me. I don't agree that all of our conditions that are in our current EA should be removed for the next person. I don't that's the award. The award is - - -
PN1154
So you had a personal stake in it but you were also concerned about future people?‑‑‑Yes.
PN1155
MR HARDIE: Your Honour, several times I've let it go but my friend's got a habit of, when the witness is answering the question, butting in at least half way through. Could you direct him to let the witness answer the question before - - -
PN1156
THE DEPUTY PRESIDENT: I'm concerned with how long the questions are and how many questions get asked before we actually get to the question. It's just for the witness's sake because I'm struggling to keep track. So maybe if we break down - - -
PN1157
MR FLETCHER: Yes, I'll - - -
PN1158
THE DEPUTY PRESIDENT: I don't know if it's an advocacy technique or strategy you're trying to use but again it goes to the credit - - -
*** RYAN WAKE XXN MR FLETCHER
PN1159
MR FLETCHER: I thought I got shorter but I'll try and - - -
PN1160
THE DEPUTY PRESIDENT: Yes, you did get a little bit shorter because they were very long to start with.
PN1161
MR FLETCHER: They were. I'll try and keep it short. So - - -
PN1162
THE DEPUTY PRESIDENT: I'm just not sure the witness is going to be giving an answer to the right question and that will go to the weight of what you're trying to extract from him if you don't break it down a bit.
PN1163
MR FLETCHER: I understand and I'll modify the questions accordingly. So your concerns were your own situation where the terms and conditions in the agreement would be reduced for you, personally, but also for other people that might be covered by it?‑‑‑Yes.
PN1164
You refer to the contact that was made with the AMWU. You first made contact with the AMWU on 30 March? Did you say that?‑‑‑The 31st.
PN1165
The 31st, and that's when you joined?‑‑‑That's correct.
PN1166
And when you joined did you make anyone at the AMWU aware that the process had started, the process of bargaining, that is?‑‑‑I made them aware that the initial rollout had happened and I left the copy of everything I received in my initial pack.
PN1167
Yes, and I think you said before that your pack - you had the notice of representational rights in a blank envelope and then all of the other material was provided with it, but in a separate pack, yes?‑‑‑I can't remember if they were in separate envelopes, I just know it was within the information that was supplied on that date, 30 March.
PN1168
So you left that with the union?‑‑‑I left copies of it with them.
PN1169
Did you keep a copy for yourself?‑‑‑Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1170
Yes. And did you - who did you - did you speak to anyone when you joined?‑‑‑At that time, I believe I spoke to an admin person, yes, and filled out the paperwork and left the copy. I spoke to Steve later.
PN1171
SO you spoke to an admin person on the day and then Steve is Steve McMillan?‑‑‑That's correct.
PN1172
And when did you speak to him?‑‑‑Either that afternoon or the next day on the phone.
PN1173
Okay. Thank you. And what did you tell him when you spoke to him?‑‑‑I just went into - I expressed my concerns with the enterprise agreement offer and the individual contract.
PN1174
And did he give you - did he make some comment about getting on it right away and making contact with BGC?‑‑‑He said that BGC would contact him as part of the process or something along those lines.
PN1175
So he was waiting for BGM to contact him?‑‑‑You would have to ask him that.
PN1176
Okay. But that's what he told you?‑‑‑He - I can't remember that conversation, because it was six months ago, but I think it was along those lines.
PN1177
Thank you. You've mentioned or you were asked questions about the roster arrangements and the fact that that made - that had some impact on the communications. Did you - am I correct in suggesting that the period between the initial rollout and the vote for the agreement was around 10 weeks. Would that be right?‑‑‑Probably .
PN1178
And you work an even-time roster. Is that right?‑‑‑That's correct.
PN1179
So in that 10 weeks, subject to annual leave and other considerations, you would have had five weeks of work and five weeks not at work?‑‑‑That's correct.
*** RYAN WAKE XXN MR FLETCHER
PN1180
And is it your view that all of the bargaining, as in - and by bargaining I mean - let me just take it back, so I'm not asking a lengthy question, am I correct - sorry, would I be correct if I was to suggest to you that your view is that the discussions between yourself, the company and the other bargaining reps should only happen in worked time?‑‑‑No. They could have called a meeting on my days off and I would have attended, but it would have created issues with people that don't live in Whyalla. So if they are a rep and they live in Adelaide and they're not their days off, and the same with both sites in Western Australia, fly‑in and fly‑out sites. So it wouldn't be practical to assume that you could bargain when you are not at work.
PN1181
But at Whyalla, there are - Whyalla is a residential operation, is that right? Largely?‑‑‑It is. So that only stipulates that BGC wont' supply your accommodation. You can live wherever you like. You are just responsible for your own travel.
PN1182
But there are a large number of people that were either - and actually I will just - once again, I need ask you in sequence, but the first thing I wanted to ask you in the context of bargaining representatives is there were bargaining representatives that were appointed pursuant to the requirements of the Fair Work Act and there were bar - there were people involved in the negotiations who were just involved in the negotiations, but hadn't formally appointed themselves as bargaining representatives. Is that correct?‑‑‑You would have to understand the process to know that, but I assume through the negotiations that I was a fully appointed bargaining representative.
PN1183
Yes, and I'm not taking issue with that?‑‑‑It wasn't until afterwards that I was - I found out that my name wasn't on the list and realised there was another process to it that we weren't made aware of.
PN1184
So what I am asking you is are you aware that there were some people who had been formally appointed as bargaining reps through an appointment process stipulated under the Fair Work Act and some people were just involved in bargaining, but hadn't necessarily appointed themselves as bargaining representatives?‑‑‑In hindsight, yes.
PN1185
So you didn't know that at the time?‑‑‑At the time, I did not know that.
PN1186
And is it possible that there could have been people that had also - that were also involved in bargaining but were not appointed as bargaining representatives who were involved in the discussions in Western Australia?‑‑‑It's possible.
PN1187
Yes. And when you became a bargaining representative, the onus on - or the company didn't provide you with a form and say, "Complete this form to become a bargaining representative." They said, "You can be a bargaining rep if you want to and guided you to how to prepare the appropriate paperwork. Is that right?‑‑‑If you'd call that - they gave us that sheet of paper with the pack. It wasn't read out to us. So - and they guide us - - -
*** RYAN WAKE XXN MR FLETCHER
PN1188
And the sheet of paper - sorry the sheet of paper - - -
PN1189
THE DEPUTY PRESIDENT: Sorry. Can you just let him answer, otherwise I am going to have Mr Hardie jumping to his feet.
PN1190
MR FLETCHER: Yes.
PN1191
No, I just want - the sheet of paper reference - - -?‑‑‑The notice of representational rights was in the - - -
PN1192
THE DEPUTY PRESIDENT: Yes, I know what he's talking about. I'm keeping up.
PN1193
MR FLETCHER: Yes?‑‑‑But I felt I was guided into my position as rep by my supervisor suggesting to me work group that we needed to elect somebody and I was elected in front of him.
PN1194
And you were happy to be that person?‑‑‑I was.
PN1195
Yes. You were taken at the end of your evidence to the issue of the proposed variation to the current agreement which was proposed a little while before this process started. Can you remember that process?‑‑‑Yes.
PN1196
And you are aware that that process is one of the only two - sorry, you are aware that that process is one of the things that would be necessary if you wanted to change the terms and conditions that are in the agreement?‑‑‑That's correct. Yes.
PN1197
So you need to vary an agreement to change what the terms are?‑‑‑Yes.
PN1198
And you also understood that by voting yes for the proposed agreement that that was another means by which your agreement will change, because I think you gave evidence that you understood that the - tell me if I've got this right, you said that you understood that when an agreement gets to the end of its expiry, as is the case with the 2012 Mining Agreement that if the new agreement has been voted up and comes into operation, the new agreement applies. Is that your understanding?‑‑‑Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1199
Yes. So the status - you also understand that the status as of today is that the 2012 agreement applies to you and will continue to apply to you until a decision is made to approve this agreement?‑‑‑Yes.
PN1200
Or a future agreement?‑‑‑Yes.
PN1201
THE DEPUTY PRESIDENT: Or is terminated.
PN1202
MR FLETCHER: And that was my next question.
PN1203
You also refer to an issue around - or as you understood it - around termination of an agreement. I think you said that that came up in the context of the discussions with the people in WA. Is that the only time that termination or reverting back to the award came up as a topic of conversation?‑‑‑No, as I think I mentioned in my statement also that the first time I heard of it was when our CEO came to site and as part of the rollout he gave a bit of background to the mining industry or the climate in the mining industry at the moment and made reference to other companies who have recently made new agreements with their employees.
PN1204
Yes?‑‑‑And he - one of those references was a company in Western Australia that failed to reach agreement and the Commission ruled to terminate their agreement and put them back on the award. So, yes, and from there in conversations with Western Australia it came up again. I guess it was more relevant to them being closer to home.
PN1205
But no one in the company, the CEO or anyone else said that that's what BGC was going to do, did they?‑‑‑Not to me.
PN1206
And you said that you also heard it in the context of the Western Australian operations. Now, how many people from the Western Australian operations did you end up talking to?‑‑‑I'd have to go through their names to count them. I spoke twice and three people each time, they weren't the same three people each time. So it could have been six from each site. Some of them might have been the same people. So I'm - I don't know. Between eight and 12.
PN1207
Yes. And you've passed - in your statement, I will just take you to the paragraphs. So paragraph 43, you say:
PN1208
In the course of my employment, I have no interaction with BGC employees in WA.
*** RYAN WAKE XXN MR FLETCHER
PN1209
Sorry, I am rushing again?‑‑‑Yes.
PN1210
So in paragraph 43 you say:
PN1211
In the court of my employment, I have no interaction with BGC employees in WA.
PN1212
So the only interaction you probably had is through those bargaining representative interactions. Would that be right?‑‑‑That's correct.
PN1213
And then you've gone on to say - and I think Mr Hardie asked you about it again - you say in paragraph 47:
PN1214
Having spoken to a lot of employees during negotiations and since the vote -
PN1215
when you say "a lot of employees", is that in Western Australia as well?‑‑‑Yes. Well, that's inclusive. It's every employee - so the ones - - -
PN1216
So you said that you had talked to 12 people during what I might call the bargaining representative discussions. That is what you said. You said 12 people?‑‑‑Between eight and 12, yes.
PN1217
Yes. And then you've said in this paragraph, since the votes you've - well, you've said during negotiations. So presumably the reference there to "during negotiations" is a reference to the 12. Would that be right?‑‑‑Well, I spoke to them once when I would say "during negotiations" and once after negotiations, but prior to a vote.
PN1218
Okay, and that's the - but that's not the "since the vote" part?‑‑‑Yes. Okay. Well, I've only spoken to the local people since the vote.
PN1219
Okay. Thank you. So you've only spoken to South Australian people since the vote?‑‑‑Yes.
PN1220
Yes?‑‑‑But I know what - I spoke to the other people guys just before they voted, so - - -
*** RYAN WAKE XXN MR FLETCHER
PN1221
You did. You did. But that's the reference that you make to - particularly the two sites in Western Australia?‑‑‑Mm‑hm.
PN1222
Yes. So that - where you say "particularly the two sites in Western Australia", that's based on talking to 12 people. Is that right?‑‑‑Yes.
PN1223
And I think when you gave evidence to Mr Hardie, I'd have to say though, those 12 people are bargaining reps who give me the opinion of their work group.
PN1224
That's right. They gave an opinion. So do you agree that in paragraph 47 you are expressing an opinion? Just yes or no. Are you expressing an opinion on paragraph 47?‑‑‑Well, it's not a yes or no question.
PN1225
Well, no. It should be - - -?‑‑‑On expressing an opinion based on the information I've been given.
PN1226
But you are - you're expressing a belief or a view?‑‑‑Yes.
PN1227
Yes. And the belief or view is based on what you've been told by a small group of people who have told you something also based on a belief or a view. Is that right?‑‑‑That's right.
PN1228
And the same goes, if you go to the final paragraph - and those people aren't here to - in these proceedings, are they? None of those people are here?‑‑‑No.
PN1229
No. SO what the Commission is being asked to accept is your belief or view of their belief or view of the belief or view of a third group?‑‑‑Well, she also has the results of the vote. So she can make her own determination of - - -
PN1230
And we will be making that submission. That's right. Yes. So the - if you go to the final paragraph, you say:
PN1231
It's fair enough if you make a deliberate decision to trust management and accept the offer on the table.
PN1232
Do you agree - do you need to - - -?‑‑‑What paragraph?
PN1233
Sorry, paragraph 145?‑‑‑Mm-hm.
*** RYAN WAKE XXN MR FLETCHER
PN1234
So you say there:
PN1235
It's fair enough if you make a deliberate decision to trust management and accept the offer on the table.
PN1236
Then you go on to say - sorry, let me first ask you about that. So in that paragraph where you say, "It's fair enough if you make a deliberate decision", are you talking about, sort of, "you" in the royal "we" sense? In the "you" sense, as in - - -?‑‑‑As in - - -
PN1237
As in you're talking about yourself?‑‑‑As an individual.
PN1238
You're talking about - - -?‑‑‑I'm talking about an individual. If an individual chooses - - -
PN1239
An individual in your shoes?‑‑‑Any employee. An individual that voted on this agreement.
PN1240
Yes. What you are saying there is that one option for the individual there is to trust management?‑‑‑Yes.
PN1241
And you, I think, are opposed to the making of the agreement. Is that correct?‑‑‑Yes.
PN1242
And you voted no for the agreement?‑‑‑Yes.
PN1243
And that means that on that statement, you had made a decision not to trust management. Is that right?‑‑‑Yes.
PN1244
And then you go on to say, and this is important"
PN1245
The impression I got from the circumstances leading up to the vote in June was that WA sites did not truly understand the offer and were too scared to speak up and question it.
*** RYAN WAKE XXN MR FLETCHER
PN1246
So do you agree that the first contention that people make a deliberate decision to either trust of not trust meeting is different to the second part of the sentence where you - it's a long sentence, it could be one of my questions - and the second part of the sentence where it talks about not truly understanding the offer or being too scared to speak up. The two concepts are different, aren't they? One is, "I've considered everything you have to say and I either trust you or I don't trust you." And the other is a bit more sinister and the other one sort of talks about not truly understanding or being too scared. Do you agree that they are separate concepts?‑‑‑Yes.
PN1247
And do you agree that if you - if the proposition - so we'll go back again. The proposition that was put to you before, and you agreed, was that you had an agreement and you have an agreement still which is the 2012 agreement, which operates in conjunction with a contract. The company was proposing to have a new agreement and a new contract combination where more of the terms and conditions were in the contract than what was in the agreement. Do you agree with that?‑‑‑Yes.
PN1248
And that was the source of your distrust?‑‑‑Yes. Well, yes, and the failure to properly explain the reasons behind that move and also what it meant.
PN1249
So is it another possible interpretation, bearing in mind that it's difficult for you to say with conviction, because you said before that it was a belief of a belief of a belief, but is it possible that the other interpretation of West Australian employees reaction might have been that they just trusted management? They heard everything you had to hear and they just trusted management?‑‑‑Yes. Except for the fact that in my final discussion, particularly with the Mount Webber site, they - when I raised the issue again of the individual contract, they believed that that issue had been resolved by the last communication by Martin Spibey.
PN1250
Yes, and there was an issue in particular they were concerned about, wasn't there? It was to do with portability of terms and conditions of employment. Do you remember that?‑‑‑Yes, but our contention - the point that I had raised with them in my first conversation was the point around an individual contract not having the same weight as far as it could be changed without an agreement.
PN1251
That's your view, isn't it? And before I tried to take you to what your view is and you said that you are not a lawyer so you couldn't provide me with a definitive answer. You had a view based on the information that you'd seen, yes?‑‑‑Based on legal advice. Yes.
PN1252
Yes. So isn't it equally open to interpretation by those people that they could also consider the advice and come up with a different outcome?‑‑‑Yes.
*** RYAN WAKE XXN MR FLETCHER
PN1253
THE DEPUTY PRESIDENT: You are asking him to give evidence about unspecified people's opinions or conclusions.
PN1254
MR FLETCHER: Yes. I won't take it any further, Deputy President. I'm just trying to highlight that - I think the concern I've got - - -
PN1255
THE DEPUTY PRESIDENT: I think the submission is that - I think it's a matter for submissions that his -- -
PN1256
MR FLETCHER: Yes, it is.
PN1257
THE DEPUTY PRESIDENT: That there may have been a different rationale for WA employees.
PN1258
MR FLETCHER: Yes.
PN1259
THE DEPUTY PRESIDENT: But that's not his evidence. He has been consistent with his evidence and he's been clear about which WA - what the extent was of his contact with WA, and he's drawn an impression from that. What you are trying to do is get him to give evidence that there was another view which could be possibly held by - - -
PN1260
MR FLETCHER: Yes. No, I appreciate what you're saying, Deputy President. I think the concern I've got is that in a tribunal that's not bound by - strictly by the rules of evidence, there are some - - -
PN1261
THE DEPUTY PRESIDENT: Or in asking leading questions.
PN1262
MR FLETCHER: In a tribunal that's not strictly governed by the rules of evidence, there are some big calls in this statement and I think it would be remiss of me not to address the big calls that have been in this statement. I think I've addressed it and I can make submissions about it in due course, but you've got one witness here - - -
PN1263
THE DEPUTY PRESIDENT: He's only giving his evidence of what conclusions he drew.
PN1264
MR FLETCHER: And I'm confident from the exchange that we've had that you will make the appropriate findings as to weight.
*** RYAN WAKE XXN MR FLETCHER
PN1265
THE DEPUTY PRESIDENT: Has anyone called any WA witnesses?
PN1266
MR FLETCHER: No.
PN1267
THE DEPUTY PRESIDENT: I have to draw something from that.
PN1268
MR FLETCHER: Yes, you certainly will. You certainly will. I hope. I submit.
PN1269
You did mention - I just want to be clear, Mr Wake, that you were given full access to computers and time off to have your discussions with your group about the agreement?‑‑‑Well, yes. I was given access when I - I had to work it around my other commitments, but I - yes, I was supported as far as when I asked if I could go on to the Fair Work site.
PN1270
Yes?‑‑‑I was given access and when I asked if I could send an email, I was given access, but I also to work around other people's commitments with those two computers that I had access to.
PN1271
Yes. You talk about the frequently asked questions, and you offered an opinion. You offered it live today and also you've said it in your statement that you thought that the frequently asked questions were basically drafted by the company. Is that your view?‑‑‑Well, it was said to us that the first set were based on what we would - what they thought we would want to know. We were given the first set of questions on the day that the EA negotiations - - -
PN1272
Yes, so there's no - so if you were given frequently asked questions on the first day?‑‑‑Yes.
PN1273
You can't - logically, they can't be frequently asked questions, because no one has asked the question yet?‑‑‑That's correct.
PN1274
Yes. But if I put it to you that the subsequent questions, 2, 3 and 4, that they were actually legitimate questions that had been asked by the workforce across the sites, would you agree with that proposition?
PN1275
THE DEPUTY PRESIDENT: He can't possibly give evidence about that.
PN1276
MR FLETCHER: Well, he's given evidence.
*** RYAN WAKE XXN MR FLETCHER
PN1277
THE DEPUTY PRESIDENT: I know, but you are asking him why the company put those questions in. That's a question for the company witness that wrote those FAQs. That's not - that's just complete speculation on his part.
PN1278
MR FLETCHER: Well, he speculated that the company - that the questions were written by the company. So - - -
PN1279
THE DEPUTY PRESIDENT: He could speculate about that.
PN1280
MR FLETCHER: Yes. Well, I've - so - - -
PN1281
THE DEPUTY PRESIDENT: Given they sent the first lot out before they'd even asked in the negotiations. So clearly at least the first lot were drafted by the company.
PN1282
MR FLETCHER: That's right. That's fine. I'll save that for my witness, Deputy President.
PN1283
THE DEPUTY PRESIDENT: Just before you go on, I just want to go back to something before I forget about it and that was in relation to that question about paragraph 145 and your desire to put the contention that there may have been - that Mr Wake's impression about the conclusions of the WA employees was different from what they were factually. If you don't call any Western Australian witnesses, what do you say the weight I should give to Mr Wake's impressions?
PN1284
MR FLETCHER: Well, I can't call - I don't think any weight should be attached to it, because it's purely speculative. He is saying what he heard someone - he's saying what he believed an interpretation of what someone was saying, based on their interpretation of what someone else was saying. It's extremely - - -
PN1285
THE DEPUTY PRESIDENT: He's saying that he drew an impression from his discussion with the bargaining reps in WA and those bargaining reps he presumed had contact with some of their colleagues. But at least, to a limited - at least factually he had conversations with the bargaining representatives, even if we just presume that those bargaining representatives had no conversations with any of their constituents, he's had conversations with WA bargaining representatives and he says he drew from those conversations this impression. What evidence will I have to the contrary that the WA - that that impression is incorrect, other than your submissions from the Bar Table?
*** RYAN WAKE XXN MR FLETCHER
PN1286
MR FLETCHER: All I can do, Deputy President, is state at this point in time we don't have evidence from the Western Australian - Western Australia is not really involved in the process.
PN1287
THE DEPUTY PRESIDENT: Okay.
PN1288
MR FLETCHER: But that your function is to consider whether the agreement was genuinely agreed and the strongest bit of evidence that you've got in relation to whether the agreement was genuinely agreed is the vote, is the result of an independent vote. Peoples' objective - sorry, subjective opinions about what might or might not have been in their mind at the time that they were bargaining relayed by a third party and remember there are no specific words there. You haven't been - Mr Wake hasn't given - hasn't told us what people said. He's formed conclusions about - and look, I think probably we're getting into submission territory and I'm not sure that I want to make this submission in - you know, while I'm still cross-examining Mr Wake, but the quality of the evidence that's before you, I think, will form part of our submission in relation to that.
PN1289
THE DEPUTY PRESIDENT: And what presumption might I draw from the fact that you haven't called WA witnesses to give direct evidence of their reasons for voting?
PN1290
MR FLETCHER: I think I will make a submission on that in due course.
PN1291
THE DEPUTY PRESIDENT: On that? Okay. Because I think the submission is that - and I don't want to incorrectly frame the union argument, but I think the union argument is that that approval was coloured by inappropriate or - either incorrect information - the approval was coloured by either incorrect information or misleading information, or a misunderstanding of what the circumstances were and therefore the approval wasn't - in voting it up, it wasn't a genuine approval.
PN1292
MR FLETCHER: Well, but - I appreciate that it's our application, but the union hasn't produced anyone that says they were.
PN1293
THE DEPUTY PRESIDENT: Well, I suppose that's where Mr Wake's evidence goes to, where he says that he had discussions with the WA representatives and at least those one he spoke to directly - he didn't give evidence about what they directly said, and the reasons that they were or weren't voting, or the basis on which they were voting. So it's a question of what evidence is available to me and the best evidence available - is the best evidence available to me at the moment Mr Wake's evidence or is there other evidence which you would point to which goes to explaining what was in the minds of the WA employees that voted it up.
*** RYAN WAKE XXN MR FLETCHER
PN1294
MR FLETCHER: I think the best I could do, Deputy President, is take it on notice and deal with it as the course of our - of the proceedings - sorry, as the course of the hearing proceeds.
PN1295
Just one question, Mr Wake. In your - you got some assistance from, I think, a legal practitioner relative or in-law of yours and from Mr Hardie in relation to the preparation of your statement. Is that right?‑‑‑That's correct.
PN1296
And you deliberately - and your statement quite deliberately includes some of the frequently asked questions that - sort of extracts from the frequently asked questions that were provided in the form?‑‑‑Yes.
PN1297
Did you get help from either Mr Hardie or your in-law in selecting which of the frequently asked questions to put into the document?‑‑‑No. No. My cousin in-law - he was the majority of my assistance in putting this together. He just asked me if there was any questions that stuck out to me and that's how I selected those questions.
PN1298
Yes. And you selected the ones on that basis, as you say, that stuck out to you?‑‑‑Mm-hm.
PN1299
Thank you. No further questions.
PN1300
THE DEPUTY PRESIDENT: Would you like a break or are you okay?‑‑‑Is there more?
There is and there's re-examination to go yet.
CROSS-EXAMINATION BY MR BONCARDO [4.17 PM]
PN1302
MR BONCARDO: I'm not usually this quiet for this long.
*** RYAN WAKE XXN MR BONCARDO
PN1303
Mr Wake, my friend asked you a number of questions about your understanding or your comprehension of the ability of BGC to change your contractual conditions. Can I take you to exhibit RW25 very quickly and get you to look at page 5 of what is your employment contract; that is the new employment contract with the alleged preserved conditions in it. Can you look at the clause that's headed "Consultation", and read that to yourself, and can you tell her Honour whether that clause impacted your view in respect to how changeable the terms of this contract were, and if it did, how did it do that?‑‑‑Yes. Personally, it didn't change my mind, but through conversations with the Western Australian counterparts, they felt that it had alleviated our concerns.
PN1304
So I understand, the clause that says that"
PN1305
In the event that your employer finds it necessary or is required to consider amendments to the preserved conditions in the contract, consultation will occur before a change is made.
PN1306
?‑‑‑Yes.
PN1307
That ameliorated the concerns of your West Australian counterparts, did it?‑‑‑Yes. It seemed - they seemed surprised when I said things to the contrary of that. Yes.
PN1308
What did they say to you in respect to how that provision operated?‑‑‑Well, they didn't really go into detail. They just - when I asked how they were feeling about the vote and I raised my concerns with still having our conditions in the individual contracts, they just said something along the lines of they thought that issue was resolved with Martin Spibey's addition to the contract.
PN1309
Thank you, sir.
THE DEPUTY PRESIDENT: Do you want a break? Are you going to be long, Mr Hardie? I'm just conscious of whether the witness wants a break or not.
RE-EXAMINATION BY MR HARDIE [4.20 PM]
PN1311
MR HARDIE: Two minutes.
PN1312
THE DEPUTY PRESIDENT: Can you hold out that long?‑‑‑Yes. No, let's just get it over with.
PN1313
I must warn you though, he said 15 minutes, and it was three times that. So work on a three-tem multiplication of how long you might be there.
PN1314
MR HARDIE: It's like I'm home?‑‑‑Is this - sorry, can I just ask one question? Is this the final questioning?
*** RYAN WAKE RXN MR HARDIE
PN1315
Yes?‑‑‑ Or does it go back to anyone else?
PN1316
THE DEPUTY PRESIDENT: Does Mr Fletcher get another go?
PN1317
MR FLETCHER: No, I'm spent.
PN1318
THE DEPUTY PRESIDENT: He's done. He's done his dash now. It's your own counsel you need to worry about.
PN1319
MR HARDIE: I'm not trying to give you a lecture or tutorial on evidence, and - - -
PN1320
THE DEPUTY PRESIDENT: You're lucky I'm not charging my fees when I was in private practice.
PN1321
MR HARDIE: My friend put a lot of focus on the last paragraph of your affidavit, paragraph 145 from memory?‑‑‑Mm-hm.
PN1322
What did you observe here or see that formed the belief that you had that employees in Western Australian sites. I too scared to speak up?‑‑‑Possibly based on my initial conversations with them, that I had a couple of questions to them around whether there was many people in a union on their sites and whether they'd be prepared to join a union for this negotiation to work smoothly and they suggested that they wouldn't be comfortable in doing that over there for fear that it wasn't generally - unions were generally accepted on mine sites in Western Australia and they felt that if anyone was a member they wouldn't be willing to put their hand up to say that they were.
PN1323
Why wouldn't they be willing to put their hand up?‑‑‑Because they - - -
PN1324
MR FLETCHER: No, no. Now, he's asking for an opinion of an opinion. We can't have that.
PN1325
THE DEPUTY PRESIDENT: Did you discuss with them why they wouldn't put their hand up?‑‑‑Well, they said that they would be run-off site. That's the words - or to the effect of that they said in that conversation.
*** RYAN WAKE RXN MR HARDIE
PN1326
MR HARDIE: Any other comments said to you was a direct result of that forming of that belief?‑‑‑Just that I didn't feel that a lot of the issues that I had raised in that initial conversation, I don't - they sort of committed to raising them at their next meeting and then the next conversation I had, although there were different people involved, they didn't seem to be aware of those issues I had raised the first time, which led me to believe that a lot of them were raised.
PN1327
How would you compare your level of understanding of the - - -
PN1328
MR FLETCHER: He can't compare that. That's not - how does he compare someone else level of understanding?
PN1329
MR HARDIE: Did you think that you had a clearer, more accurate, understanding of preservation of terms and conditions under contracts as opposed to enterprise agreements and the enforcement aspect of those terms and conditions? Do you think that you had a better handle on it than they did?‑‑‑Yes. I felt I had a lot more resources available to me through being able to involve the union and it stemmed from there that I also got evidence from the ombudsman as well, but I had more resources available by being able to go to the union for advice.
PN1330
THE DEPUTY PRESIDENT: What did they say to you that - did they say anything to you that led you to have the conclusion that you had more resources?‑‑‑Well, they haven't - I know that they haven't spoken to anyone about it, and they weren't prepared to speak to - - -
PN1331
How do you know that they haven't spoken to anyone?‑‑‑Because that - I - during our initial conversation and my raising concern of the individual contract, they weren't aware of another - a view of how much or how the contract could change , and I said how I had had my advice from the union and the Fair Work Ombudsman by phone, and they were interested to hear that, but hadn't heard it themselves.
PN1332
I think you can lead that evidence that he has made a judgement based on having a discussion - -
PN1333
MR FLETCHER: Just.
PN1334
THE DEPUTY PRESIDENT: Yes.
PN1335
MR HARDIE: I have no further questions?‑‑‑Thank you.
*** RYAN WAKE RXN MR HARDIE
PN1336
THE DEPUTY PRESIDENT: Big sigh of relief.
PN1337
MR HARDIE: You can go and have a beer?‑‑‑Yes.
PN1338
THE DEPUTY PRESIDENT: Okay. Is there anything else from the Bar? Any more questions, Mr Hanson? No? Mr Thomas? No?
Okay, Mr Wake. Thank you very much for you time?‑‑‑Thank you.
<THE WITNESS WITHDREW [4.26 PM]
PN1340
THE DEPUTY PRESIDENT: Okay.
PN1341
MR HARDIE: I call Geoff Fiebig to the stand, your Honour.
PN1342
THE ASSOCIATE: Please state your full name and address.
MR FIEBIG: Gregory Donald Fiebig (address supplied)
<GEOFFREY DONALD FIEBIG, SWORN [4.27 PM]
EXAMINATION-IN-CHIEF BY MR HARDIE [4.27 PM]
PN1344
MR HARDIE: Your name is Gregory Donald Fiebig?‑‑‑Yes.
PN1345
And you live at (address supplied)?‑‑‑Yes.
PN1346
Do you have a copy of the statement you made?‑‑‑Yes, I do.
PN1347
Which was witnessed by Alice Wrigley on 31 August 2016?‑‑‑Yes.
PN1348
That statement comprises of two pages - three pages?‑‑‑Three pages.
PN1349
Is that your signature that appears on the third page?‑‑‑Yes.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1350
Is this a true and accurate statement, to the best of your knowledge and belief and recollection?‑‑‑Yes, it is.
PN1351
I tender that as evidence.
THE DEPUTY PRESIDENT: I will mark Mr Fiebig's witness statement A10.
EXHIBIT #A10 STATEMENT OF GEOFFREY FIEBIG
PN1353
MR HARDIE: What site are you employed at, Greg?‑‑‑SMR. South Middleback Ranges.
PN1354
Okay. Are you a member of the AMWU?‑‑‑I am. Yes.
PN1355
How long have you been a member for?‑‑‑It would be well over five years.
PN1356
When you were handed a notice of representational rights, did you nominate anyone to represent you?‑‑‑Yes. I nominated AMWU, Steve McMillan. I actually wrote a letter and three other workers that were in a union signed it and I emailed it to HR.
PN1357
When did you do that?‑‑‑I couldn't tell you. I would have to check my emails.
PN1358
Do you know about when you got the notice of representational rights?‑‑‑I can't be certain. Probably earlier - yes, earlier on, when all this started, I suppose.
PN1359
Okay?‑‑‑I think it was - - -
PN1360
Did you - - -
PN1361
THE DEPUTY PRESIDENT: Sorry, can I just - you were still thinking, weren't you?‑‑‑I think it was still - I think it was late March that we first got told.
PN1362
MR HARDIE: And how long do you think you had the notice of representational rights before you sent it off to HR, endorsing the AMWU?‑‑‑I can't be certain. I'm sorry. Yes.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1363
Could it be days or weeks?‑‑‑A week, perhaps a week or so, yes.
PN1364
Okay?‑‑‑Yes. Sorry. It was a long time ago.
PN1365
What would be the longest period of time it would have taken you to do that?‑‑‑Probably a couple of weeks perhaps.
PN1366
Okay. Was there any reason for you actually - didn't the form say if you want your union to represent you, that will happen by default?‑‑‑We had no - I don't think - I don't remember any form saying anything about where to fill in or anything like that.
PN1367
Okay?‑‑‑There may have been one, but I honestly don't remember getting given that.
PN1368
And who were the other people that you collected signatures from?‑‑‑There was Steve Walley, James Burnett and Steven Geyer.
PN1369
And what motivated you to do that?‑‑‑Talking with Steve McMillan. He said it needs to be in writing, that I, yes, select him as doing that for me.
PN1370
Okay. Were you a bargaining agent?‑‑‑Yes. I was also elected as - a workgroup - to represent them.
PN1371
How did you reconcile that the AMWU was your bargaining representative and you were a bargaining representative yourself?‑‑‑How did that come about?
PN1372
What was your thinking?‑‑‑Well, I wanted the union involved in the consultation process, because it was my first time as a representative and that, and I looked to them for guidance.
PN1373
Have you had much experience as a bargaining agent?‑‑‑No.
PN1374
Any training?‑‑‑No.
PN1375
THE DEPUTY PRESIDENT: Are you asserting there is an obligation for an employer to train bargaining representatives? It's just that it's a question that you have put to a few of your witnesses.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1376
MR HARDIE: Yes. No, there's no need for you to be concerned.
PN1377
THE DEPUTY PRESIDENT: No, I was just wondering if that was a submission that you are making.
PN1378
MR HARDIE: The submission I am making will paint a picture that will go to people's ability to genuinely agree when the mechanisms for - I don't like getting into submissions, but imagine that we are having a federal election and you only had access to the Murdoch press and everything else was blocked out.
PN1379
THE DEPUTY PRESIDENT: I don't think I would be reading much.
PN1380
MR HARDIE: No. I am not going to make submissions now, but I am painting a picture. I am not - these things - when section 180 - it might be 182 - talks about special efforts the employer has to make to make sure people from - that have some particular vulnerability - the employer has to go out of their way to explain - to make explanations and not to just hand out FAQs. I will find it, if you - - -
PN1381
THE DEPUTY PRESIDENT: Section 180(c). Is that the one that you are relying on?
PN1382
MR HARDIE: 180(c)?
PN1383
THE DEPUTY PRESIDENT: Because you are not asserting that they were culturally and linguistically diverse or young employees?
PN1384
MR HARDIE: Yes, 185 subsection - 180.
PN1385
THE DEPUTY PRESIDENT: Yes.
PN1386
MR HARDIE: Subsection (6).
PN1387
THE DEPUTY PRESIDENT: Subsection (6)(c). Or are you asserting that some of the employees were from culturally and linguistic diverse backgrounds or they were young employees.
PN1388
MR HARDIE: 6(d)? There's no 6(d).
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1389
THE DEPUTY PRESIDENT: 6(c).
PN1390
MR HARDIE: My hearing is really going on me today. Yes. This (a), (b) and (c) - - -
PN1391
THE DEPUTY PRESIDENT: Yes.
PN1392
MR HARDIE: This (a), (b) and (c) are all examples of who might be vulnerable to having a con job done on them by the boss. And it's there with the intent to protect again misinformation and whether - you can extend that. You could run a number of novel arguments, but you could extend that to say - - -
PN1393
THE DEPUTY PRESIDENT: I've already had one decision described as novel in (indistinct) express, don't take me there again.
PN1394
MR HARDIE: I will try not to.
PN1395
THE DEPUTY PRESIDENT: Not in my first year. I'm sure there's a KPI against that.
PN1396
MR HARDIE: They could have said "courageous".
PN1397
THE DEPUTY PRESIDENT: They said "important" initially in the headline. I was quite excited until I read the body and they said "novel", and then I thought that just means "appealable".
PN1398
MR HARDIE: Well, there is a correlation between novel and appealable.
PN1399
THE DEPUTY PRESIDENT: Yes, and it has been appealed to the Federal Court, so they were on the money.
PN1400
MR HARDIE: We are always trying to entrap presiding officers.
PN1401
THE DEPUTY PRESIDENT: Particularly the baby ones.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1402
MR HARDIE: So it's within that context that I am saying that it is not a long bow to draw to say Parliament put that subsection in to ensure that employers gave - went out of their way to work against barriers to clear communication and accurate communication to deal with particular circumstances.
PN1403
THE DEPUTY PRESIDENT: Okay.
PN1404
MR HARDIE: Now, here we have - - -
PN1405
THE DEPUTY PRESIDENT: That's sufficient. I just wanted the context.
PN1406
MR HARDIE: Yes. I won't give you the submission now.
PN1407
THE DEPUTY PRESIDENT: Yes, that's fine. I just wanted the context, because then I can understand the evidence, as you give it.
PN1408
MR HARDIE: now, where was I?
PN1409
So did you tell us how was that you were selected to represent a group of constituent workers?‑‑‑It was just in a return-to-work toolbox meeting and there was probably 20 workshop maintenance employees. So I was selected on their behalf, and another bloke.
PN1410
And you drew the short straw?‑‑‑I did offer.
PN1411
Okay?‑‑‑So yes.
PN1412
THE DEPUTY PRESIDENT: You've only yourself to blame then?‑‑‑Yes.
PN1413
MR HARDIE: So what - apart from the FAQs and attending meetings in April and May, were you provided with any other resources or tools or information to help you do your job as a bargaining agent?‑‑‑No. Just guidance from the union.
PN1414
Were there any structures put in place for you to caucus and communicate with other bargaining agents in other sites covered by the proposed agreement?‑‑‑No. Not - I got - we got allowed a phone call the night before the vote. That is the only communication we were - - -
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1415
With who?‑‑‑With an employee from Mount Webber.
PN1416
From Western Australia?‑‑‑Western Australia. So there was that, but then - - -
PN1417
So you had a discussion - just to recap, you said - the transcript will say that you were allowed to have a telephone discussion with someone from Mount Webber the night before the vote?‑‑‑Yes. That was where I repeatedly asked to contact with the representatives from Western Australia.
PN1418
Who did you ask?‑‑‑Tariro Ruwiza and Russell Pyman.
PN1419
And when did you start asking them? The vote was held when?‑‑‑During the meetings that we had in the town office and when I - sometimes I seen Tariro on site.
PN1420
So how many meetings on site did you attend?‑‑‑On site? There were no meetings on site. It was just return to work on our first day back.
PN1421
Did you attend any meetings as a bargaining agent with the employer's bargaining agents?‑‑‑In town, yes.
PN1422
In town - in Whyalla?‑‑‑Yes. There were two and then there was a third one, which was the employer wasn't there. That was just all workers.
PN1423
And you how many in total which you have attended in March and April?‑‑‑None in March. I reckon there was one in April and one in May. One in April and two in May, perhaps. Or one in April, May and June perhaps. There was none in March.
PN1424
Do you recall around about the dates of those meetings took place?‑‑‑I reckon - I couldn't tell you one in April. I reckon the one in - I reckon it was about 11 May. Yes, I'm sorry, I couldn't. I'd have - if I - I'd have to check my emails.
PN1425
And then there was one after 11 May. Is that what you are saying?‑‑‑Yes.
PN1426
Okay. So did you attend all three of those?‑‑‑I did, yes.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1427
And when you attended the first one, can you remember whether you'd put in your notice nominating Steve McMillan as your bargaining agent with your three comrades signatures or whatever on it, before that meeting?‑‑‑I can't be sure. Sorry.
PN1428
What about the second meeting?‑‑‑It would have definitely been before the second meeting.
PN1429
Were there any - can you remember what happened at the second meeting? What was the - - -?‑‑‑We come to - we pretty much come to the conclusion that - they asked is what it would take to get a yes vote and we pretty much told them that we needed the preserved rates in a clause in the EA or we needed it written in the EA. And we sort of left the meeting because they said, "Yes. That's probably do-able. We will take that back to management." So we left the meeting feeling in a good sense that we had resolved something and that things are moving forward.
PN1430
Then what happened?‑‑‑Then we got told, "No. Higher management won't need to - we won't be putting that in the contract", and pretty much basically that they need to trust them.
PN1431
When did you first become aware that you are going to a vote?‑‑‑I'm not sure. It would have been by that stage though.
PN1432
So both happened around about the same time?‑‑‑Yes. It was a long time ago. I can't - it would have been documented somewhere. Like BGC would be able to tell you.
PN1433
Okay. When was the vote carried out?‑‑‑I don't know. I don't know exact dates.
PN1434
Approximately?‑‑‑June. Does that sound right?
PN1435
Yes. So you said the vote was carried out in June. You'd been attending meetings with management since 24 April. And you've been asking Mr Pyman and Mr - is this the same Mr Tee or - - -?‑‑‑Yes.
PN1436
And Mr Tee for the opportunity to talk to bargaining agents in Western Australia?‑‑‑Yes. We asked for video linkup or even to fly over - - -
PN1437
How many times did you ask?‑‑‑Or even to fly over and meet with them, because it's pretty hard to bargain - - -
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1438
What was your motivation in terms of wanting to talk to them?‑‑‑Well, it's hard to know what the whole workgroup wants. If there's two sites over there and two sites here, 800 people, how are we meant to put to management as a group what we want? Otherwise people are just putting forward bits and pieces and it's hard - - -
PN1439
But you are only representing your group?‑‑‑We were only representing our group, but it's hard to know what the rest of them are thinking. They could be happy with that and we could be fighting against it or they - yes, or vice versa.
PN1440
So what sort of instructions were your group giving you?‑‑‑They weren't happy with it, because there was no certainty to the preserved rate, because what they - what they tabled as - was pretty much 43 per cent less than the rate we were on. Like, if - yes, if the individual agreements weren't upheld.
PN1441
Now, others have testified that late last year the company attended to revise the current enterprise agreement and have it amended to reduce pay rates. Do you remember that?‑‑‑It might have been earlier this year, I reckon. It was to stop a two per cent increase. It went to a vote and got voted down. I think it was - yes, it wasn't for a pay decrease. It was for a two per cent - to stop a two per cent increase which had been frozen, I reckon, for a year from memory.
PN1442
And do you know - were you told what the count of that vote was?‑‑‑No. Just that it was a no vote.
PN1443
And you think that happened early this year rather than late last year?‑‑‑I'm not sure, but it probably is the same one they're talking - that you said has been talked about.
PN1444
And based on that background knowledge, what did you think when the notice of representational rights was issued in late March to start bargaining?‑‑‑What did I think?
PN1445
Yes?‑‑‑Well - - -
PN1446
Against that backdrop?‑‑‑Well, we didn't get - we pretty much got given a - Greg Hart and the boss come over and pretty much introduce the package that they were offering us. So that was - first up we thought, "Yes, that's reasonable." But then looking into it, it was - yes, they had dangled a carrot with the preserved rates and the EA had changed from - drastically from the old one.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1447
In what way?‑‑‑As in a 43 per cent pay decrease.
PN1448
Okay. Now, you finally got your wish to talk to Western Australian employees, representatives or whatever they were?‑‑‑They weren't representatives, they were just two workers. Yes.
PN1449
How do you know they are only just workers?‑‑‑We asked them their job role.
PN1450
Okay. Did you discuss who their bargaining agents were?‑‑‑No.
PN1451
And so how did that conversation go? How many people did you talk to?‑‑‑I remember the name of one, Cody Clements and he had another - I reckon there was an operator there with him but he didn't have much input. So I don't really remember his name.
PN1452
Okay. Well, is there anything notable that came out of that discussion?‑‑‑Yes. They were too scared to vote no, and pretty much said everyone was voting yes over there, because they'd already been made redundant and, yes, they got told that if they vote no again, they could get made redundant again. So they had obviously - - -
PN1453
Who told you that?‑‑‑Cody.
PN1454
Cody?‑‑‑Clements.
PN1455
What was his surname?‑‑‑Clements. So yes, they had already been made redundant and got re-hired at a lower rate.
PN1456
Did they?‑‑‑Yes.
PN1457
Is that what he told you during this conversation? So was there anything else notable about what transpired during that conversation?‑‑‑Just that the fact that they didn't know how and EA worked. They thought that - so I sort of explain to him what would happen and his indication was that they thought that if they voted no then the company could drop their rates back to award rates. They didn't understand that they would stay on their old agreement until - - -
PN1458
Did he tell you that?‑‑‑Yes.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1459
How long did this conversation go for?‑‑‑We talked for approximately 20 minutes.
PN1460
Have you signed a new contract with BGC?‑‑‑Signed a?
PN1461
An employment contract?‑‑‑Yes. An employment contract.
PN1462
When did you do that?‑‑‑I signed it on 31 August 2016.
PN1463
Why did you do that when the current agreement is still in place?‑‑‑I know.
PN1464
So why did you do it?‑‑‑Because I was told in a written letter that if it did get passed through Fair Work that we would lose our preserved rates, which I did send in the email attachment of that letter from Martin Spibey.
PN1465
THE DEPUTY PRESIDENT: Does that really just go to being forced to sign a common law contract as opposed to reflecting on whether the approval was given genuinely?
PN1466
MR HARDIE: I'm sorry?
PN1467
THE DEPUTY PRESIDENT: Sorry. Does that evidence, really just go to the circumstances in which the witness decided to sign a common law contract, rather than to the genuineness of the approval of the agreement?
PN1468
MR HARDIE: And if the basis on which he was asked to do it. You will recall other evidence was around nominal expiry dates.
PN1469
THE DEPUTY PRESIDENT: Yes. My concern is that the evidence is in the negative in the sense that what we have got is the evidence of the South Australian witnesses that they didn't sign - they didn't approve it because they were concerned about the preservation - that their right -that the agreement was deficient or (indistinct) but not evidence of the reasons for the approval of it by the people that voted it up. And what I am required to determine is was the approval which was given genuine. So - - -
PN1470
MR HARDIE: I agree.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1471
THE DEPUTY PRESIDENT: At the moment I am getting evidence sort of, at the moment in the shadow.
PN1472
MR HARDIE: Yes.
PN1473
THE DEPUTY PRESIDENT: And that was my criticism of Mr Fletcher previously, that he hasn't - once the issue of genuineness is put on the table, what evidence have I got that - - -
PN1474
MR HARDIE: The difference between my colleague - my friend here and myself - he's got the evidential burden and that's clear. He has got it - he has the evidential burden of satisfying you. Now, if he chooses - in my view, if he chooses not to call now, Mr Cody Clements, then that is significant, because we have named an employee in Western Australia who my witness says said that, "We were told that if we don't vote this agreement up we are either going to be made redundant or go back to the award."
PN1475
THE DEPUTY PRESIDENT: Yes. Okay.
PN1476
MR HARDIE: Now, my friend can - but that was made and in my opening statement, I cited the authority which makes it clear that it's Mr Fletcher's job to satisfy the evidential burden. He has to satisfy you. And your Honour, as much as people play with opinion and evidence law, there is a good reason that parliament decided not to have evidence law or strict adherence to evidence law in this tribunal because it's - a lot of things operate in the shadow of the law as you've said in industrial relations.
PN1477
There are good reasons, when you have an industrial situation like this where you have got people that are thousands of miles from one another and all sorts of barriers and need to communicate with each other. I mean, the bottom line is you have the discretion - the unfettered discretion to inform yourself as you see fit. And if the Rules of Evidence get in the road of doing that, you don't have to comply with them.
PN1478
Having said that, the difference is that we are raising evidential issues about - clearly, this is the clearest one that's come out this afternoon where someone has been named and said exactly that. Now, if that does reflect - and, you know, you have in front of you corroborating evidence in terms of the outcome of the vote so I think Mr Duncan has got some work to do.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1479
In relation to - you have to be confident that people genuinely agreed. We're putting together a whole lot of things which individually, you know, you're right to pull me up. But putting them all together you start to get a total picture. Okay, I haven't got much more to go. Now, when you attended the meeting at your workplace - the meetings with employer bargaining agents - on three occasions, were any minutes taken of those meetings?‑‑‑Yes, they were.
PN1480
All of them?‑‑‑Probably not the last one, because it was just a workshop. It was just an employee meeting.
PN1481
Who took the minutes?‑‑‑We definitely received minutes from the second meeting.
PN1482
You definitely did?‑‑‑Yes.
PN1483
What happened during that second meeting?‑‑‑That's the meeting I discussed earlier where we pretty much come to the basis we gave them - told them that to get a yes vote through we would like it put into the EA - into the agreement - to preserve rates, which they said yes, should do.
PN1484
Have you ever seen a copy of the Fair Work Act South Australia - South Australian Fair Work Act 1994?‑‑‑I may have. I've looked through a lot of documents for Fair Work, but - - -
PN1485
When do you think you might have?‑‑‑I'm not sure.
PN1486
When was the last occasion?‑‑‑I'm not sure, sorry. I'm unsure.
PN1487
Do you know why you would have looked at it?‑‑‑Just to familiarise myself with the Fair Work Act and stuff like that - I did have a look through a lot of them at one stage.
PN1488
During the bargaining period?‑‑‑Yes.
PN1489
You're clear that I'm talking about the Fair Work Act - the South Australian Fair Work Act?‑‑‑I'm sorry, I'm not good with all that sort of stuff.
PN1490
Okay?‑‑‑I don't remember that sort of stuff.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1491
So did you, apart from the FAQs and talking to other bargaining agents, did you seek advice from anyone else concerning the issue of enforceability of common law contracts?‑‑‑Yes, Steve McMillan from AMWU.
PN1492
So did you pass this on to - - -?‑‑‑To the work group, yes.
PN1493
What was their reaction when that was explained to them?‑‑‑Yes, they weren't very happy. Yes, just to know that - yes, they can be worked around, like, they can't be held to them. What did you - what approach did you take, what position did you take, in going to the vote?‑‑‑I encouraged a no vote.
PN1494
You promoted the no vote? What did you think would happen if the no vote got up?‑‑‑Well, I thought then BGC would have to come back to the table and actually negotiate.
PN1495
Okay. What would happen with your pay?‑‑‑We were under the understanding that we stay on the same contract we're on until a new one is in place.
PN1496
A contract?‑‑‑Sorry - stay under the old agreement until a new agreement was in place.
PN1497
As a bargaining agent, did you have discussions about this with other employees?‑‑‑Yes, I informed the employees that this was the case.
PN1498
So the people that you interacted with - is it your evidence that the people you interacted with were clear that if they voted no the old agreement would remain in force?‑‑‑Would stand, yes.
PN1499
This wasn't the same in Western Australia?‑‑‑No, they didn't know how the EA process worked.
PN1500
THE DEPUTY PRESIDENT: How do you know that?‑‑‑What's that?
PN1501
How do you know that?‑‑‑From that phone call with Cody Clements.
PN1502
Okay.
*** GEOFFREY DONALD FIEBIG XN MR HARDIE
PN1503
MR HARDIE: I have no further questions.
PN1504
THE DEPUTY PRESIDENT: How long do you think Mr McMillan's evidence will take, Mr Hardie? How long do you think your examination - - -
PN1505
MR HARDIE: Sorry?
PN1506
THE DEPUTY PRESIDENT: How long do you think your examination of Mr McMillan will take? Then we can times it by three. I'm just determining what's an appropriate time to have a break because we'll keep going until we finish Mr McMillan today because we've got limited time tomorrow to get through the material.
PN1507
MR HARDIE: Okay. Well, I guess I'd say 20 minutes.
PN1508
THE DEPUTY PRESIDENT: Yes, okay. Thank you. Mr Fletcher, do you have some questions in cross?
MR FLETCHER: I'll be brief.
CROSS-EXAMINATION BY MR FLETCHER [5.08 PM]
PN1510
MR FLETCHER: Mr Fiebig, you mentioned a conversation between yourself and a fellow called Cody Clements and another unnamed employee. They were the only people from Western Australia that you've spoken to about the agreement-making process?‑‑‑Yes.
PN1511
The opinions that they gave you in the context of that conversation were about themselves, weren't they? They expressed a view about their own circumstances?‑‑‑Definitely their own circumstances.
PN1512
Thank you. You became a bargaining - sorry: you emailed the company and notified them that they were becoming - sorry, that you were appointing the AMWU as your bargaining representative?‑‑‑Yes.
PN1513
You gave evidence of that. I've just - while you've been giving your evidence I checked the records and our records show that you notified the company on 9 May, that the AMWU would be your bargaining representative; does that sound right? By email?‑‑‑By email?
*** GEOFFREY DONALD FIEBIG XXN MR FLETCHER
PN1514
Yes, 9 May?‑‑‑If that was the date, yes.
PN1515
Okay. There was a meeting that followed on 11 May which was a bargaining meeting which was attended by representatives of I think all three unions and yourself and another representative, is that right?‑‑‑That was - sorry, 11 - - -
PN1516
11 May?‑‑‑Yes.
PN1517
Yes, so by that time you'd appointed - or you'd notified the company that Mr Steve McMillan from the AMWU was your representative or the AMWU was your representative?‑‑‑Yes.
PN1518
Yes.
PN1519
THE DEPUTY PRESIDENT: Was that necessary, though? Would that not be the default?
PN1520
MR FLETCHER: Yes, well, I think - it's not important to where I'm going. All I want to ask is at the meeting on 11 May did you do - did you sort of speak for yourself or did you let Mr McMillan speak on your behalf?‑‑‑He spoke on behalf of me, I suppose, but I still was a representative from the work.
PN1521
Did you raise any issues yourself, things that you wanted addressed or your position on the agreement or did you sort of agree with what Mr McMillan was putting?‑‑‑I raised what some of the workers had wanted raised.
PN1522
The evidence you gave was that really, the issue - the issue, probably the only issue - was the question of preserved rates, is that correct?‑‑‑There were other issues.
PN1523
What were the other issues?‑‑‑The sick bonus, the tenant bonus - - -
PN1524
The sick bonus and tenants' bonus - but you - were you open to those amounts - sorry, those bonuses being addressed in a contract or did you want those as part of the agreement as well?‑‑‑If they were in that contract but then the contract was in the - tied in to the agreement - - -
PN1525
The agreement, yes?‑‑‑Yes.
*** GEOFFREY DONALD FIEBIG XXN MR FLETCHER
PN1526
Yes. So what you were looking for was a clause that basically - a clause in the agreement that basically made the agreement - sorry, the preserved agreement conditions for you, to be preserved?‑‑‑For the workers?
PN1527
The workers, yes; as a collective?‑‑‑Yes.
PN1528
So you obviously understood - and I think you've given evidence - that the current arrangement is you've got 2012 agreement and you've got a contract and the two interact to provide your employment conditions and your concern was that under the company's proposal, your interest or your stake in what was being proposed was that you didn't want your agreement conditions to go down, even if they were being supplemented by contractual conditions? That was your main issue with the agreement?‑‑‑Sorry?
PN1529
Sorry, I'm asking long questions again. I'll ask it slowly.
PN1530
THE DEPUTY PRESIDENT: We don't have time.
PN1531
MR FLETCHER: The question I'm asking you is you understand that - it's been a long day - you understand that the current agreements are - currently you've got the mining agreement and the contract of employment, yes?‑‑‑Yes.
PN1532
Yes, and the two of those interact to give you your employment conditions; do you agree with that?‑‑‑Yes, the employment contract is the same - the rates are written into the agreement so they are - - -
PN1533
Yes, you're a maintenance worker, aren't you?‑‑‑Yes.
PN1534
Yes?‑‑‑So your rates are actually written in the contract.
PN1535
Yes?‑‑‑So they pretty much - yes, they're in the agreement.
PN1536
Yes, and so your concern was that you didn't want to see the agreement go down to a lower level, even if the company was proposing to preserve them in the contract?‑‑‑No, we're happy for them to put those lower rates in there - - -
PN1537
Yes?‑‑‑ - - as long as our contracts, our individual contracts, were tied to that - - -
*** GEOFFREY DONALD FIEBIG XXN MR FLETCHER
PN1538
Yes?‑‑‑ - - because otherwise they can go and change without a vote back to award rates because that's all the agreement is.
PN1539
So your concern was an adjustment to the individual - - -?‑‑‑Yes, so weren't asking much. That was all we were asking for and they couldn't even come to the party for that.
PN1540
But you put the proposal on the table and they took it away and they thought about it and they came back to you?‑‑‑Yes.
PN1541
But they didn't give you what you wanted?‑‑‑Yes.
PN1542
That's why you ran - I think you said you were quite active in the no campaign? You said, "Vote no", and you probably voted no yourself?
PN1543
MR HARDIE: I think he said he promoted it. He didn't use the word, "active."
PN1544
MR FLETCHER: Okay, you promoted a no vote amongst your colleagues?‑‑‑I just went back to the group I was representing and said, "On this factual evidence and from hearing from Fair Work saying that an individual contracts aren't - they can't hold the company to those contracts" - - -
PN1545
Your recommendation was - - -?‑‑‑My recommendation was a no vote.
PN1546
Yes. You voted no yourself?‑‑‑Yes.
PN1547
Did you - when you spoke to Mr Clements, did you give them the same recommendation?‑‑‑We just gave them the information and what we told about - the information we got from Fair Work and, yes, how that didn't stand up.
PN1548
Yes?‑‑‑Just - I said that over in South Australia that we would probably recommend a no vote.
PN1549
Okay. No further questions.
PN1550
MR HARDIE: No redirect.
*** GEOFFREY DONALD FIEBIG XXN MR FLETCHER
THE DEPUTY PRESIDENT: Does anyone else at the bar table - excellent. Okay, you're released from the witness box?‑‑‑Thank you.
<THE WITNESS WITHDREW [5.16 PM]
PN1552
MR HARDIE: Your Honour, at the expense of incurring your wrath, I've drunk rather too much water.
PN1553
MR FLETCHER: That's too much information, Mr Hardie.
PN1554
THE DEPUTY PRESIDENT: You're going to have to pace yourself better. Okay, we'll have a brief adjournment but we will continue after the adjournment until we've finished the witness. It might provide some incentive to process - - -
PN1555
MR HARDIE: Yes, I know exactly what you're - - -
PN1556
MR FLETCHER: Deputy President, I think there's one other: there's Scott Martin from the AWU. Are we going to hear from him tomorrow or - I note that Mr Hanson said that he may not wish to call him. I don't know if he still does. Is it your intention that we hear from everyone today?
PN1557
THE DEPUTY PRESIDENT: My intention was to do what we agreed; was to hear from all of the union witnesses today because we have a very limited day tomorrow. I'm on a flight out at 3 - I need to finish at 3.30 to make a flight out. So in the break perhaps some consideration can be given to whether there is a need to call that witness or not. That's why I was very clear with the parties that we needed to have an agreed schedule because I knew there was a limited window - - -
PN1558
MR HARDIE: Maybe we should bring my friend's witnesses in and cross-examine them tonight too.
PN1559
THE DEPUTY PRESIDENT: No, the agreement was that they have allocated sufficient time for them tomorrow and if we don't get through them in time the Commission will leave. So Mr Fletcher is on a tight deadline tomorrow. Okay, so, we'll adjourn for - until half-past. Does that give the parties sufficient - - -
PN1560
MR HARDIE: That's ample time.
PN1561
THE DEPUTY PRESIDENT: Ample time?
SHORT ADJOURNMENT [5.18 PM]
RESUMED [5.32 PM]
PN1562
MR FLETCHER: Sorry, Deputy President. This is the housekeeping matter you requested. You requested I should determine if I was going to call Scott Martin. I am going to call Scott Martin.
PN1563
THE DEPUTY PRESIDENT: Okay, thank you. Sorry - Mr Hardie.
MR HARDIE: I call Steven McMillan to the stand.
<STEVEN MCMILLAN, AFFIRMED [5.32 PM]
EXAMINATION-IN-CHIEF BY MR HARDIE [5.32 PM]
PN1565
MR HARDIE: Mr McMillan, what position do you hold within the - - -
PN1566
THE DEPUTY PRESIDENT: Mr Hardie, could you just bear with me one minute?
PN1567
MR HARDIE: I'm sorry. Yes, we're referring to the F18.
PN1568
THE DEPUTY PRESIDENT: Okay.
PN1569
MR HARDIE: I have a copy.
PN1570
THE DEPUTY PRESIDENT: Sorry, thank you.
PN1571
MR HARDIE: Do you have in front of you a copy of a form F18 statutory declaration of employee organisation?‑‑‑I do.
PN1572
Is it signed by you on the - is that your signature - - -?‑‑‑Yes, it is.
PN1573
- - on page 3 of 3 - and was it witnessed by Tracey Robinson?‑‑‑It was.
*** STEVEN MCMILLAN XN MR HARDIE
PN1574
Okay. Mr McMillan, what position - what is your role within the AMWU?‑‑‑Regional organiser for South Australia.
PN1575
You take care of the BCG site?‑‑‑I do, yes.
PN1576
How long have you taken - - -?‑‑‑I've been employed since late 2012.
PN1577
How long have you been responsible for looking after members at BCG?‑‑‑Since then.
PN1578
2012?‑‑‑Yes.
PN1579
Have you had a chance to review this declaration?‑‑‑I have.
PN1580
Is there anything that you wish to amend or change before we have it - it's a stat dec.
PN1581
THE DEPUTY PRESIDENT: Yes, I'm not sure if you can amend or change - - -?‑‑‑No, I'd just affirm that it is correct as to say any dates that are there are from notations that I've made. Any references to days or ones that I haven't are recollections.
PN1582
Okay, thank you.
PN1583
MR HARDIE: Okay, so the best of your knowledge it's true and correct in every detail?‑‑‑Yes, that's correct.
PN1584
Thank you.
PN1585
THE DEPUTY PRESIDENT: Marking that?
PN1586
MR HARDIE: Yes.
THE DEPUTY PRESIDENT: A11 - the F18 statutory declaration of Mr McMillan.
EXHIBIT #A11 F18 STATUTORY DECLARATION OF STEVEN MCMILLAN
*** STEVEN MCMILLAN XN MR HARDIE
PN1588
MR HARDIE: Thank you, Deputy President. Now, have you had any previous dealings with BGC since 2012?‑‑‑Yes, I have.
PN1589
Can you recall what occasions they were?‑‑‑I can't recall the dates but, yes, I think my first - I guess disciplinary or involvement as a union organiser was early 2013.
PN1590
What have you - have you been on any BCG sites?‑‑‑Yes, yes - I've put in right of entries on several occasions to visit the site to represent members and speak to those that are - could be represented by our organisation.
PN1591
Okay. So how often do you think you would have gone on site?‑‑‑A couple of times a year, at least.
PN1592
So do you know anyone in HR?‑‑‑Yes.
PN1593
Who do you know?‑‑‑I've met Mrs Tolomei before. I've met Mrs - sorry - Thorpe, in the office.
PN1594
Are you on friendly speaking terms?‑‑‑Yes, we email, like I said, to right of entries and any issues that might come up like that; mainly I deal with local managers if there's an issue with a member or access to site.
PN1595
So Ms Tolomei would know that you're an organiser as an official with the AMWU?‑‑‑Certainly does, yes.
PN1596
The only other conclusion would be that she knew that we had members on site?
PN1597
MR FLETCHER: Stop: that's not a conclusion. That's Ms Tolomei's conclusion, not a Mr McMillan conclusion.
PN1598
THE DEPUTY PRESIDENT: I thought the question was before as well.
PN1599
MR FLETCHER: Well, I'll backdate my - it is getting late in the day, Deputy President.
PN1600
MR HARDIE: Has Ms Tolomei given you any indication that she knows that we have AMWU members on site?‑‑‑I would assume so, yes.
*** STEVEN MCMILLAN XN MR HARDIE
PN1601
THE DEPUTY PRESIDENT: "I would assume so" - - -
PN1602
MR HARDIE: How would she know that?
PN1603
- - what evidence has she given you that you have members on site?‑‑‑I guess email communication that I would have given her through Tariro, about going on there for disciplinary actions for members - along those lines, yes.
PN1604
MR HARDIE: So it's your evidence that you have attended to represent members at just the IK - - -?‑‑‑SMR, mainly.
PN1605
SMR - have you been on the other site?‑‑‑I haven't been there for BCG but I have been on the site for Arrium and Bolga.
PN1606
Okay. Were HR aware that you were going on site at times to be a union representative for people involved in disciplinary processes?
PN1607
THE DEPUTY PRESIDENT: I think you need to reframe the questions because you can't give evidence of what someone else is aware of. So the question would be, "Do you go on to site to do these things?"
PN1608
MR HARDIE: Yes.
PN1609
THE DEPUTY PRESIDENT: "Do you meet Mrs Tolomei", not, "Does Ms Tolomei" - - -
PN1610
MR HARDIE: Okay.
PN1611
THE DEPUTY PRESIDENT: I only say so because I don't want to get in a position where his evidence is - - -
PN1612
MR HARDIE: Tainted.
PN1613
THE DEPUTY PRESIDENT: - - tainted, yes.
*** STEVEN MCMILLAN XN MR HARDIE
PN1614
MR HARDIE: So you've said that you go on site to represent members during disciplinary processes?‑‑‑That's correct.
PN1615
Do you report that - what is the mechanism that you use to go and do that function?‑‑‑Usually - depending on the disciplinary process - I notify the direct manager that there's an issue or the members come to me with a disciplinary issue. I notify local management that I'd be their representative and then I'd have to either put in a right of entry for that or be invited to sit in the disciplinary with that member.
PN1616
So did you only communicate with the managers or did you - - -?‑‑‑I think on occasions I might have CCed - I might have, I'd have to check my records - CCed either Ms Thorp or Ms Tolomei in on those.
PN1617
So how many notifications to managers would you have made for disciplinary hearings?‑‑‑Probably three or four.
PN1618
Different managers or - - -?‑‑‑Usually through Tariro - so he's the BCBU, so we usually go through him and he then directs us to the correct manager of the employee to deal with.
PN1619
MR HARDIE: Okay. This is the Mr T?‑‑‑Yes, correct.
PN1620
How did you first become aware that BCG were bargaining for a new agreement?‑‑‑I was made aware - I got contacted by some members via telephone, saying that they'd been given some information: Q and As, those sorts of things, and a pack. I remember having a couple of conversations: Ryan Waite rang me, who wasn't a member, and said - I get a lot of phone calls from non-members and I said - usually with pre-existing issues - and I said to him, "Well, you'd have to sign up for us to represent you. If you've got any information for us to deal with drop it into our local office." After that I also received a couple of other phone calls from members indicating that BGC were looking to start negotiations or start talking to people about their wages and conditions.
PN1621
Were you involved in the attempt to vary the current - - -?‑‑‑No, I wasn't.
*** STEVEN MCMILLAN XN MR HARDIE
PN1622
Okay. So what did you do - so when did you first become aware?‑‑‑By memory, I think it was middle to late April. Looking through my packs, information, there was some information dropped off at the office but like I said, I'm a regional organiser. I look after everything from Port Perry up to Coober Pedy, out to Ceduna, so I'm not in the office on lots of occasions. The information that was dropped at the office I may have seen around the middle of April but the phone call could have come a little bit earlier than that. I've got no confirmed date on that.
PN1623
What did you do then?‑‑‑Well, once I'd seen the information I then thought, well, as a union organisation and the company knowing that we are, that they'd put us down on the list as bargaining representatives for our members and I waited for that communication. When that didn't come through I then got another phone call saying that they'd had a meeting, I think it was late April - a first bargaining meeting that I hadn't been invited to. Then I submitted a right of representation through the union to Tariro to be party to the agreement and negotiations.
PN1624
MR HARDIE: When did you do that?‑‑‑I think that went through on 2 May.
PN1625
Okay. When did you attend your first meeting?‑‑‑I got response from BGC around 6 May, I believe. They sent through an information pack with a question-answer sheet. I think it was the current EA that they were looking to endorse. Then a schedule for the next meeting, which was 11 May at the BGC office in Whyalla.
PN1626
So the pack already had the draft enterprise agreement?‑‑‑I believe, so, yes; the stuff I had, yes.
PN1627
So did you attend that meeting on 11 May?‑‑‑I did but as - there had already been a meeting and some other information sessions. Tariro invited me to a one-on-one in the office on the morning of the 11th and the scheduled bargaining representational meeting was in the afternoon, to give me the catch-up, to try to catch up with what was going on, which I attended with Tariro. We basically just went through the process that they'd already started to try to bring me up to speed. There was a lot of information in that, so - - -
PN1628
Did you give any responses to Mr T?‑‑‑Not really - I said - looked at the information. The information was already out there. I had some concerns about it but I hadn't spoken with the rest of the, I guess, employee reps to find out what their full concerns were. I was to do that in the afternoon, after the meeting.
PN1629
You'd spoken with members before?‑‑‑Yes, and they had their concerns about that, yes.
*** STEVEN MCMILLAN XN MR HARDIE
PN1630
What were those concerns?‑‑‑There was, I guess, from the two agreements there's the one that looks after the maintenance workshop employees and then the mining side of things. They wanted to incorporate them into one agreement. The guys had some concerns around that and how that would affect, I guess, both parties; both sides of that. Also that some of the conditions from the original, current agreement were to be removed and put into common-law contracts or individual contracts and the guys had lots of concerns around that.
PN1631
So when you went to the meeting proper - not the one - after you'd seen Mr T - - -?‑‑‑Yes.
PN1632
- - who was there?‑‑‑By memory - I didn't know all the faces. From the union point of view there was myself and there was Scott Martin and I'm not sure - I do believe Greg Warner from the CFMEU rocked up later in the meeting. There was Tariro, a couple of site managers that I'm not aware of, didn't know beforehand but it was Jason Ryan and a - trying to think of his name now - no, it slips me. Then a lot of the bargaining reps: Ryan Wake and Greg Fiebig. The rest of the names are not familiar to me.
PN1633
So were there any reps from the SMR site?‑‑‑Yes.
PN1634
What about Western Australian sites?‑‑‑No, not that I believe - I said I didn't know everyone in the room but my understanding that they were all Whyalla-based.
PN1635
Now, what were the concerns? What was said to you by the members in terms of changing the scope of their agreement from the separate mining and maintenance agreements to effectively morphing them together?‑‑‑It wasn't specifics but there's certain things in one agreement that weren't in the other. There was issues, they said, around the pay rates and those being reduced in the agreement and being then protected under a common law contract or preserved rate. They were the main issues. There was issues around superannuation, if I remember rightly. There may have been some issues around classifications: they guys weren't too sure about being a preserve rate in a common law contract. There was no scope for - if they went up another level where did they go because it was - the rate wasn't then linked to a classification structure; those sorts of concerns.
PN1636
In terms of the number of people covered by - if we're looking at the current agreement, the maintenance agreement - did you do any calculation on what the increase in numbers of Western Australian workers would be in terms of voting?‑‑‑No, it was the first meeting. I had no idea of the Western Australian sites' demographics or anything like that. I was not even 100 per cent sure of how many employees that BGC have in each of their workshops.
*** STEVEN MCMILLAN XN MR HARDIE
PN1637
As the first point of contact for our members, have there been any concerns raised with you around that sort of issue?‑‑‑Yes, there was a couple of, I guess, comments made that the sites in WA would outnumber the Whyalla site and, you know, depending on what went on and how it went, what the vote would be. Their understanding is there was more employees in WA than there are in the Whyalla, both combined.
PN1638
Did you consider seeking scope orders?‑‑‑I was - myself, I was thinking about doing that but as I said, it was the first meeting that I had been attending. As I said, before the second meeting we didn't get an opportunity to.
PN1639
So what was - what transpired on the 11th?‑‑‑Several reps got up and I think actually BCG, Tariro and some of the other managers put a bit of a spiel up and recapped of where they had been - because we hadn't been involved - where they had been. Then there was some, I guess, questions from delegates or representatives over how they get their preserved rate and what does that look like and can we have that referenced in the EA. They said stuff about the superannuation classification structures. Out of the end of that meeting we sort of had an undertaking that BGC were going to go away to see if they could, I guess, reference the preserved rate in the agreement, because that was a concern for the guys, that they had protections. The other thing that was agreed to in principle was that we'd re-meet on the 18th and the representatives brought up that they wouldn't mind having contact with the WA delegates or representatives to have an all-in-one conversation and what that looked like and the outcomes. We were given the undertaking - we believed we had the undertaking that that would be facilitated on the 18th. But there was no outcomes of the meeting: there was no real agreement so we just - - -
PN1640
Did you get minutes of the meeting?‑‑‑I don't believe I did. I'd have to check my records but I don't believe I did get them in for that meeting.
PN1641
So when did you say you expected to get feedback?‑‑‑We were going to re-meet on the 18th but I had a prior appointment in Adelaide so I wasn't going to be able to attend. I had discussion with the other local organisers and there was going to be representatives there from the unions; not from the AMWU, of course, but we work very closely together and as long as there were going to be a union organiser there from one of our organisations we were happy for that meeting to go ahead.
PN1642
Did you advise anyone at BGC?‑‑‑I believe I did, yes.
PN1643
Who?‑‑‑Tariro - I think I sent him an email or a text. I'd have to check my records.
*** STEVEN MCMILLAN XN MR HARDIE
PN1644
So what was the next thing you did?‑‑‑I guess they said there was some conversations after the meeting with the representatives about were to now and what happens and we said, "Well, we can't really do anything until we get this information back from BGC. Let's just sit on it." That's when I was looking at scoping orders. I thought about - because the guys indicated they'd like a Whyalla agreement after the meeting. We thought about that. We'll bring that up at the next meeting. The next I knew about it, I think I got a phone call - well, I'd check my records again - a phone call on the morning of the 18th, prior to the meeting in the afternoon, stating that on I think the 17th a letter had gone out through BGC on site saying that they were going to a vote and the process and all that before we even got to - I wasn't going to be there - before the scheduled meeting of the afternoon of the 18th.
PN1645
So you say that went out before the 18th?‑‑‑Yes. I think it went out the 17th.
PN1646
Had you had a response back from on - who was it that undertook to go away and - - -?‑‑‑Tariro - I think his words were something like, "We'll have to pass that through corporate."
PN1647
Okay. So when did he get back to you?‑‑‑He didn't.
PN1648
So before he got - well, he didn't get back to you and the next thing you've been told that - that the proposed enterprise agreement was going out?‑‑‑Yes, my understanding from the end of the 11th meeting was they'd give us that information at the 18th meeting. Then as I say, I've got a phone call of the morning of the 18th saying that the notice had been put out the night before at night shift or afternoon shift.
PN1649
So did you go to the meeting on the 18th?‑‑‑No, no - I had a prior appointment on the 18th.
PN1650
What was your - what were your considerations then?‑‑‑I just thought, "What a joke", to myself. From a professional point of view I thought it was very unprofessional. We had a scheduled meeting, the second one we were involved in to represent our members and before we could even get there and have those discussions BGC had rolled out a directive that they were going to put the agreement out and go to a vote.
*** STEVEN MCMILLAN XN MR HARDIE
PN1651
Now, you said that some members have expressed to you that they just wanted - our members just wanted a Whyalla agreement. Was this conveyed to BGC at all?‑‑‑I hadn't done it by that stage. Like I said, we'd met after the 11th meeting. I hadn't done it personally but I believed that was what they were going to bring up at the 18th. But I'm not sure what happened in the preceding meetings before I was involved if that was brought up. I don't think it's reflected in any of the Q and As that that was brought up but I think a lot of questions that - - -
PN1652
You didn't raise it but you don't know whether anyone else did?‑‑‑No - yes.
PN1653
Okay. After the 18th did you get any feedback from Ryan?‑‑‑Yes, as I said a couple of phone calls. We had several phone calls where Ryan rang up and was I guess fairly concerned that there was some pressure being put on out on site to members that they had to sign their - going to a vote they had to sign their agreements - individual contracts, I should say, at some point in time after the vote. There was other general conversations about where do we go to now? Basically I said to him, "We can't stop the process: we can't stop BGC putting it out to a vote but, you know, we need to inform our members that it's not in their best interests or we don't believe it's in their best interest to vote this agreement up."
PN1654
THE DEPUTY PRESIDENT: Can I ask you a question?‑‑‑Yes.
PN1655
If you - you gave evidence before that you were - or your members were concerned that WA might out-vote - or had the numbers to out-vote SA. You just gave evidence there that you couldn't stop BGC putting it to a vote. Did you take any action to contact your counterparts in WA to endeavour to raise your concerns - get them to raise your concerns with workers in WA so that there wasn't the risk of being out-voted?‑‑‑No, I never did but I don't believe we have any members on the BGC sites in WA.
PN1656
MR HARDIE: I have no further questions.
PN1657
THE DEPUTY PRESIDENT: Thank you.
MR FLETCHER: I think I'll be quite brief, Deputy President.
CROSS-EXAMINATION BY MR FLETCHER [6.02 PM]
PN1659
MR FLETCHER: Really, I just want to - you made one comment, Mr McMillan, at the very end about telling your members or Mr Wake and some other people that you - that you couldn't stop the process. Sorry - was that a yes?‑‑‑Sorry?
PN1660
You just - if you can just give me a yes or a no so the transcript can - - -?‑‑‑Yes.
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1661
- - hear you?‑‑‑The question - - -
PN1662
The question I asked and you nodded, was can - sorry: you said that in your communications with Mr Wake and the other AMWU members at Whyalla - how many of those are we talking about?‑‑‑I think I had phone calls from about five.
PN1663
Five people? You told them that you can't stop the process, meaning the process by which the agreement was put to a vote?‑‑‑That's correct.
PN1664
Yes, so would you agree that that's an acknowledgement by you that BGC, as the employer, can choose when it puts an agreement to the vote?‑‑‑I guess - yes, but in good-faith bargaining we don't believe the process was followed.
PN1665
Thank you. In relation to the timing, I think the first record I got - this is from the evidence of Mr Wake - is that he got in touch with the union on 31 March and that he provided all of the material that was provided by the company. You've given evidence that other people made contact with you in the aftermath of the onsite presentation when the notice of representational rights was issued: is that right?‑‑‑Yes, yes.
PN1666
So you agree with Mr Wake's evidence that he I think approached the union and he wasn't a member so the first thing you did - which is a very important thing to do - is make sure he becomes a member. Then you were talking to him and also you actually heard from some actual members at during that time?‑‑‑That's right but as I said I can't be 100 per cent sure on dates. It wasn't the same day.
PN1667
It was in the immediate days after the - - -?‑‑‑Yes.
PN1668
Yes?‑‑‑The phone call from Mr Wake, I said, wasn't a member. I get maybe 30 or 40 phone calls a week from non-members with issues and some you take on, some you don't.
PN1669
Yes?‑‑‑I basically - I said to him, "You're not a member, I can't represent you. If you become a member, make your way down to the Whyalla office or sign up online" - I would have had that conversation. At that time, he didn't ring a bell. He wasn't a member. I didn't know him so I wouldn't have made a note in my diary or anything. Not 100 per cent sure what that time was.
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1670
Sure?‑‑‑Then, like I said, being a regional organiser I don't spend every week in Whyalla.
PN1671
Yes?‑‑‑So that information may have come to me first, second week of April - yes, April.
PN1672
Then is it correct that you've got quite a few members at the Arrium steel works as well?‑‑‑That's correct.
PN1673
Given the timing of that, you would have been very busy on the Arrium front in that time period, would that be correct?‑‑‑That's correct.
PN1674
So your first contact with Tariro was on 12 April; does that sound right?‑‑‑Could be, not 100 per cent sure.
PN1675
That was an email to Tariro, I believe? Is that correct?‑‑‑If it's an email then it would be on record.
PN1676
Yes, it is. What I might do is actually just quickly show you. I've got it all here?‑‑‑Thanks.
PN1677
It's page 277 of the bundle?‑‑‑Is that the red letters?
PN1678
Yes, red numbers at the top of the page?‑‑‑277?
PN1679
Probably the top part (indistinct) is not the relevant part. The relevant part is your email, which is at the bottom of the page?‑‑‑Yes.
PN1680
You've said, "Afternoon, Tariro. Hope this finds you well. I've informed the company we're looking to start negotiations on the new EBA. Could you inform me when representational request letters will be sent out?" I think he then called you on the 13th or 14th and you had a phone conversation, is that right?‑‑‑I can't recall the phone conversation. If we did we did. I said we'd ring each other every now and again.
PN1681
Yes. Do you recall that - sorry, probably the first question is do you recall if the next contact with him was a phone conversation?‑‑‑No, I can't recall that would be my next contact with him, no.
PN1682
Okay, if I said to you that he called you on either the 13th or the 14th, would that sound right?‑‑‑If he called me he called me.
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1683
Yes, and he told you when he called you that in response to what you had put in your email he said that the notice of representational rights had been provided to individual employees; do you remember that?‑‑‑No, like I said (indistinct) my memory, it was a while back.
PN1684
That's all right. He said that his evidence is that you said that you would follow up with the members. Does that sound right?‑‑‑I can't recall.
PN1685
You can't remember. That's okay. Your next communication comes - I think it's just over two weeks later on 2 May 2016 and that is - turn to document 562. Can you see that letter there on page 562?‑‑‑Yes.
PN1686
Yes, and that just says that the union intends to commence bargaining and you want to negotiate on behalf of the members and you'll be seeking to insure that any agreement contains mandatory terms and not matters that are unlawful. Then sort of a suggestion that if during negotiations: "You become concerned that matters are being proposed that are not consistent with the Fair Work Act please notify us as soon as possible so we can consider your concerns." Is that a pro forma letter?‑‑‑Certainly is, yes.
PN1687
Yes, and you got a response to the pro forma letter which is referred to in page 564?‑‑‑Yes.
PN1688
Yes, and that response came a couple of days later. If you go back a page on 563 you'll see there that once he'd received that notification or within a short time period of receiving the communication you were provided with a copy of the draft agreement: FAQ1, FAQ2, FAQ3, an example pay slip and some other materials. Can you remember receiving those?‑‑‑Yes.
PN1689
Yes, and then on 10 May - sorry, if you go to 587 on 10 May he also sent you an FAQ4?‑‑‑Yes, I see that.
PN1690
If you go to 586, which is the page before it, you notifies you of a meeting on Wednesday the 11th and Friday the 13th?‑‑‑Yes, I see that.
PN1691
I think you've given evidence tonight that your - you attended the 11 May meeting but not the 13 May meeting?‑‑‑I can't recall returning to the 13 May meeting. The 11th, I said I had a morning meeting catch-up with Tariro as well, which is not referenced in there, I don't think.
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1692
THE DEPUTY PRESIDENT: The 18th, isn't it, not the 13th?
PN1693
MR FLETCHER: I think you actually had the meeting on the 11th?‑‑‑Yes.
PN1694
You had the morning - - -?‑‑‑The catch-up on the 11th.
PN1695
And that catch-up was basically - once Tariro got the official indication that you were in the game so to speak, as a bargaining agent, he wanted to meet with you and bring you up to speed with all of the communications that had happened so far?‑‑‑Yes.
PN1696
That was the tenor of the conversation?‑‑‑Yes.
PN1697
Yes. Now, Tariro's recollection of that meeting is that you said - when you ran through the material with him - so I think during that meeting he ran you through a lot of the material that he provided you?‑‑‑The stuff he emailed me back on - yes.
PN1698
Yes. You'd said to him during that conversation that you had already seen it?‑‑‑Because he had emailed it to me, yes.
PN1699
Yes, and you'd already seen it previously from being provided it by members as well?‑‑‑No, I think maybe one of the Q and As that I'd got given but not all the documentation, no.
PN1700
Tariro's evidence was that you were - after you talked through the company's proposal you - sorry: Tariro's evidence was that you talked through the company's proposal around the agreement that preserved conditions. Do you recall that?‑‑‑We discussed everything that was in the documents, yes.
PN1701
Yes, and in your evidence this evening you mentioned that there were a couple of issues in play but the main issue was the preservation question - is that a yes?‑‑‑Yes.
PN1702
Yes, and that the company had taken that on notice and they were going - basically as a proposal - and that they were going to come back to you with a - or they were going to advise the workforce whether that proposal would be accepted?‑‑‑That's not my recollection of the meeting that I had with the catch-up with Tariro. That happened at the representative - - -
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1703
Sorry, I've jumped ahead. This is - so now we're in the afternoon meeting. So you have your bargaining meeting where you talk about all the issues that are on the table?‑‑‑Yes.
PN1704
The main proposal that you wanted Tariro to go back and consider, I think - tell me if this reflects the group, so first tell me your view and then tell me the group's view - did you think that - sorry, was your main concern that Tariro would go back and confirm whether the company would agree to the preservation of conditions in the agreement itself?‑‑‑He was going to speak to corporate, if they could look at doing that - - -
PN1705
Yes?‑‑‑ - - and then feedback to the group.
PN1706
Yes, and his - your evidence is that that was the main issue from your perspective?‑‑‑From the members' perspective.
PN1707
Well, I'm asking you your perspective first and then the members' perspective. So was it the main issue from your perspective?‑‑‑The deterioration of the whole agreement was my concern.
PN1708
Yes?‑‑‑I represent my members.
PN1709
Of course?‑‑‑I take their concerns on and I give them advice on that.
PN1710
Of course?‑‑‑It's not my concern to go and do - - -
PN1711
No, sorry, I should have been clearer: it's your concern as a representative?‑‑‑That's right.
PN1712
Yes, of the people that you're representing?‑‑‑That's right.
PN1713
Tariro's evidence will be that if the company came back and agreed to the preservation that your position was that you were pretty confident that the company could achieve a yes vote?‑‑‑No.
PN1714
Okay, so you didn't represent to him that that would provide a basis for an agreement that could be endorsed?‑‑‑I think what you're alluding to - the conversation that the representatives had on the meeting of the 11th - - -
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1715
Yes?‑‑‑ - - in the afternoon - - -
PN1716
Yes?‑‑‑ - - I think one of the questions was what would help get this over the line to a yes vote?
PN1717
Yes?‑‑‑But it wasn't definitive that that in its entirety would get a yes vote.
PN1718
So you might have misinterpreted what people were saying?‑‑‑Maybe, yes.
PN1719
Okay. There was another meeting on the 18th that you referred to?‑‑‑Yes, that's the next scheduled meeting.
PN1720
Yes, because you weren't able to - can you remember why you couldn't attend the meeting on the 13th?‑‑‑I was in Adelaide - the 13th?
PN1721
Yes?‑‑‑As I said, I don't remember confirming I was going to be at that meeting at all.
PN1722
I think you've already established you were pretty busy with - - -?‑‑‑With Arrium - I could go back through my records and see what I was doing on the 13th but there was no indication that I would be making the 13th meeting.
PN1723
That's okay?‑‑‑I think that by recollection - memory - that was to catch some of the representatives that couldn't make the 11th meeting.
PN1724
Yes?‑‑‑So the same information that was provided on the 11th would be provided on the 13th. So that's my recollection of that.
PN1725
Were you aware that the meeting that was scheduled on the 18th - that was planned to be a representatives-only meeting?‑‑‑No, that wasn't my understanding.
PN1726
But if there was to be evidence that that was the arrangement, would you dispute that?‑‑‑As - could you put the question again?
PN1727
Yes, sure: so the evidence that we'll lead is that there was a planned meeting - sorry, that the planned meeting on the 18th would be a rep-only meeting. I just want to take you to page 621?‑‑‑621?
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1728
Yes?‑‑‑Now you'll see that there's a meeting sent from Megan Dyer to Sandra Thorp on 18 May at the bottom of the - sort of second email on that page?‑‑‑Yes, I see that.
PN1729
So that was to be a reps-only meeting and you'll see on the previous page - sorry, go back to page 618. That's the minutes for the meeting that you didn't attend?‑‑‑Yes.
PN1730
You'll see if you go to page 620 there's a request for an all-reps meeting without management. Then if I take you to 617, which is the minutes of the meeting that you did attend - - -?‑‑‑617, did you say?
PN1731
Yes, at the bottom of the page there it says request for an all-reps meeting without management - 617?‑‑‑617 - that's just part of the minutes of 11 May.
PN1732
Yes, and I think you were asked about the minutes. Now, if our records show that those minutes were emailed to you would you disagree that that may have happened?‑‑‑If they were emailed to me they were emailed to me. There would be a record of that. But could you direct me to the minutes of the meeting that I was at on the 11th?
PN1733
Yes, that's 614?‑‑‑614 - Yes.
PN1734
Thanks. When was your last - you talked about exercising right of entry. Do you agree that you can exercise a right of entry if you have people who are eligible to be members as opposed to people who are actually members?‑‑‑That's correct, under the Act.
PN1735
Yes, and can you tell me the last time you exercised a right of entry at BGC's operations at Whyalla?‑‑‑I couldn't give you the exact date but it was in amongst this to report back to members on site.
PN1736
Yes, so the last one I've got for you is 27 May. Does that sound right?‑‑‑Yes.
PN1737
So you exercise a right of entry on the 27th?‑‑‑Sounds about right.
PN1738
But would you agree that you didn't exercise a right of entry between 29 March and 27 May?‑‑‑I'd say that would be correct, yes.
*** STEVEN MCMILLAN XXN MR FLETCHER
PN1739
Okay. You also talked about that your involvement in representing members during dispute - is it dispute or disciplinary processes?‑‑‑Either/either - depends on who you work for.
PN1740
You said three or four and I didn't catch a time period: is that over a year or - - -?‑‑‑I said that could be over - I think it was over a period of about 12 months there was a couple that I had out there, disciplinary, yes.
PN1741
Yes, and when you are acting in that capacity as a representative, BGC doesn't ask for proof of membership, does it?‑‑‑Not that I know of, no.
PN1742
And BGC doesn't have a membership list, to the best of your knowledge?‑‑‑That's correct, as far as I know.
PN1743
Thank you. No further questions.
THE DEPUTY PRESIDENT: Thank you. Anyone else at the - okay, you're released, thank you. Thank you for your patience today.
<THE WITNESS WITHDREW [6.22 PM]
PN1745
THE DEPUTY PRESIDENT: Mr Hardie, is there anything else - any other witness evidence you wanted to call? Any other witness evidence you would like to call or are you done for the day?
PN1746
MR HARDIE: No, we - I'm done for the day, thank you.
PN1747
THE DEPUTY PRESIDENT: Done for the day, okay, thank you. Mr Hanson?
PN1748
MR HANSON: Yes, thank you.
PN1749
THE DEPUTY PRESIDENT: Do you need a brief break or can we go straight on?
PN1750
MR HANSON: I think we can go straight on so I'll call Mr Martin.
PN1751
THE DEPUTY PRESIDENT: If he hasn't run away by now.
*** STEVEN MCMILLAN XXN MR FLETCHER
MR HANSON: No, he's right behind me. I know, it's tough to see.
<SCOTT MARTIN, SWORN [6.24 PM]
EXAMINATION-IN-CHIEF BY MR HANSON [6.24 PM]
PN1753
MR HANSON: Mr Martin, you've got a copy of your statement in front of you and for the Commission's purposes that puts me at something of a disadvantage because I don't have a copy directly in front of me. It is very short, though, so I'm somewhat confident I - can I? My friend is going to help me out.
PN1754
THE DEPUTY PRESIDENT: See, by the end of the day all you want to do is work together to get out of here.
PN1755
MR HANSON: That's a good strategy, your Honour.
PN1756
MR FLETCHER: As long as I can have it back, it's okay. There's writing on the back of it still.
PN1757
MR HANSON: Okay, so, Mr Martin, is it correct you're at (address supplied)?‑‑‑Yes.
PN1758
You're an organizer for the Australian Workers' Union?‑‑‑Yes.
PN1759
Based in regional areas?‑‑‑Yes.
PN1760
Specifically, Whyalla?‑‑‑Yes, but I do the whole Eyre Peninsula, so basically from Rocksby Downs to Port Lincoln, Whyalla to Ceduna and everywhere in-between.
PN1761
I know you enjoy that job?‑‑‑Yes.
PN1762
I just have a couple of points to make in regards to your statement. Your statement largely revolves around the creation of two meetings, is that correct?‑‑‑Yes.
PN1763
Okay. One of those meetings, of course, is on the 13th?‑‑‑11th.
*** SCOTT MARTIN XN MR HANSON
PN1764
11th, sorry - and the other is the 18th?‑‑‑Yes.
PN1765
Okay. Now, was it your understanding that both of those meetings were to be bargaining meetings?‑‑‑Yes.
PN1766
The meeting on the 13th - - -?‑‑‑11th.
PN1767
Sorry - - -
PN1768
THE DEPUTY PRESIDENT: The witness is on the ball.
PN1769
MR HANSON: Sorry, I'm continuously misled by a document which states - it's dated the 13th. But in any event - so my apologies. The meeting of the 11th - have you seen any minutes about that?‑‑‑Yes.
PN1770
If I could have the chronological bundle of documents produced by my friend in these proceedings? At document 0609 - I'll let you turn to that?‑‑‑0609 - - -
PN1771
It's the big, red numbers at the top?‑‑‑ 06 - what was it?
PN1772
0609?‑‑‑0609 - yes.
PN1773
Okay. This appears to be the minutes to the consultative committee meeting that you attended, is that correct?‑‑‑Yes.
PN1774
Okay, and I'll take you to the various boxes of information. Are those the types of matters that were raised in the meeting for discussion with the bargaining group?‑‑‑Yes.
PN1775
In particular there is one there which says, "rates of pay." Is that - I'll be more specific: rates of pay and it states, "need more clarity", at the end of the sentence?‑‑‑Yes.
*** SCOTT MARTIN XN MR HANSON
PN1776
What did, "need more clarity", mean?‑‑‑Well, I said the members were generally a bit confused as to their current preserved agreement re the new EBA and there was also some classification problems the guys were discussing as well and I just think there was - again, I hadn't been at any previous meetings so I can only go on what the guys were talking about and expressing to me and it just seemed to be a general confusion as to how everything was set up and rates and pay were included in that.
PN1777
Was there any confusion about the rates of pay that were going to be paid by the company?‑‑‑Yes, there was, because the guys, again, were concerned about how their individual contracts linked in with the EBA and how those rates of pay may be changed down the track if they weren't locked into an agreement.
PN1778
Was it you that raised these concerns that led to this particular note here or was it also the bargaining reps - - -?‑‑‑No.
PN1779
- - on there, for instance, employee - - -?‑‑‑Yes - no, all these points that are on those minutes were brought up by the employees to us and were also put to management.
PN1780
So that was an employee concern?‑‑‑Yes.
PN1781
Okay. Was there any employee concern about the information that had been provided by the company in regards to wage rates generally paid in SA or WA?‑‑‑Yes, look, the guys had told me that they'd basically just been given a bundle of documents and that they made their way through those documents and there was a frequently-asked-questions sheets being out and if they had any particular queries to direct that to their management and they would try and get them some answers. But from what I can gather, the guys weren't really getting their queries answered in the way they would have liked.
PN1782
Okay. Now, as you mentioned this meeting took place in May, on 11 May?‑‑‑Yes.
PN1783
If I take you to document 002 - so right up the front of your - - -?‑‑‑Yes.
PN1784
This is the - this is a PowerPoint presentation. Have you ever seen this before?‑‑‑No.
PN1785
Okay. This PowerPoint presentation appears to have been given in March 2016. Do you see on 002 there that it says, "March 2016"?‑‑‑Yes.
PN1786
If I take you to 007, which still relates to that same document - - -?‑‑‑Yes.
*** SCOTT MARTIN XN MR HANSON
PN1787
- - you'll see this is other, recent changes to enterprise agreements, EA. You see that?‑‑‑Yes.
PN1788
Now, the first of those relates to SA, okay? It says there that - "UGL Olympic Dam EA Variation." You see that?‑‑‑Yes.
PN1789
The first point there is to say the current wage rates are down by 10 per cent for 2016. Now, do you know of that particular enterprise agreement?‑‑‑I'm familiar with it and I don't believe there's been a 10 per cent reduction in 2016.
PN1790
So do you think that that presentation given in March may have contributed to some of the confusion you saw in May?‑‑‑Yes.
PN1791
You do a lot of enterprise agreements specifically to reginal and rural SA, is that correct, Mr Martin?‑‑‑Yes.
PN1792
In regards to those agreements there is many issues, I'm sure, which are consistently raised. Is wages one of those which is important generally to regional employees?‑‑‑Yes.
PN1793
Would you say it's the most important?‑‑‑Yes.
PN1794
Taking you back to the May meeting - and by that I mean to 0611 of the booklet - if I could take you one further over to 0612?‑‑‑What are we looking at - 06 - - -
PN1795
0612?‑‑‑Yes.
PN1796
Now, this is a document that was created on 13 May but it relates to, I believe, the same information that was put on 11 May. I'll take you to the last item there, which is a box saying, "Request an all-reps meeting without management." Now, were you present on the 13th - - -?‑‑‑The 11th.
PN1797
Well, this particular - I'll take you back to 0611 - - -?‑‑‑Yes, I think - without interrupting you - these are minutes for the 11th and they were printed on the 13th, by the look of it.
PN1798
THE DEPUTY PRESIDENT: So 609, the minutes - -- -
*** SCOTT MARTIN XN MR HANSON
PN1799
MR HANSON: 609 is the - this is a point that I'm seeking to make but I'll make some clarification - - -?‑‑‑Can I just clarify: if this was a separate consultative meeting on 13 May I wasn't invited. I didn't attend, sorry.
PN1800
No problems. Okay, then I'll simply invite you to note that that item is the same, is it not, as what is on 0610 for your meeting on 11 May 2016, is that correct?‑‑‑Yes.
PN1801
Yes, okay.
PN1802
THE DEPUTY PRESIDENT: Well done.
PN1803
MR HANSON: In regards to then 0610, which is your 11 - what did - sorry, I take that back. How did that particular item come about from your 11 May meeting?‑‑‑It came about because the reps in the room said that they had had some previous discussions with the reps in WA and they hadn't occurred for a little while. They were concerned that decisions were being made over here that might impact guys over there and vice versa so they wanted to communicate with the reps in WA. So we requested an all-reps meeting without management with the unions and have a phone hook-up if possible, or video hook-up. They said that wasn't possible but the phone could have been done. So we said we'll come and do that the following week, on the 18th, and then have a meeting with the management after that, once the guys had all got together and discussed their issues.
PN1804
Did you regard that 18 May meeting, being the all-reps meeting, to be a bargaining meeting?‑‑‑Yes.
PN1805
Did management eventually attend that meeting on 18 May?‑‑‑Yes, yes.
PN1806
Was it always intended they were going to attend that meeting on 18 May from the perspective of the other bargaining reps?‑‑‑Yes.
*** SCOTT MARTIN XN MR HANSON
PN1807
All right. What were they attending to hear?‑‑‑Well, we left the 11 May meeting with some issues that still hadn't been resolved. There was quite a few issues but the main ones that's been discussed today is the preserved rates but as you go through the minutes you'll see the other issues that are also listed on there: there was crib rates, there was attendance bonus, there was classification problems, superannuation issues. None of them had been addressed and none of them had been answered on the 11th so when we left the meeting on the 11th the management made a commitment that they would go to the corporates in WA or, you know, the powers that be, discuss the issues with them and the last thing they said to us was what would need to be done to try and get this agreement up? What is the main focus and the main issue - forget about all the issues, what's the main one? Of course, it got back to the preserved rates being included in the EBA. So they were well aware that was a burning issue and they said to us they would commit to come back on the 18th and discuss that with us once they had got advice from their corporate office in WA.
PN1808
Okay. In that 11th meeting, did you sense - sorry, I take that back. Was it ever put to you in any format by the company that this was going to be the last bargaining meeting?‑‑‑No.
PN1809
Was it ever put to you by management in that meeting that there would be consequences of an agreement not getting up?‑‑‑It was mentioned that if the agreement didn't get up then they couldn't guarantee the preserved rates. It was basically said that the agreement had to be voted up or that individual contracts could be put through as well.
PN1810
Okay. Between 11 May and 18 May, were you contacted by the - sorry, I take that back. Between 11 May and 17 May were you contacted by the company in any way about putting an agreement to vote?‑‑‑No.
PN1811
Were you contacted by the company in any way indicating a finalisation of the agreement?‑‑‑No.
PN1812
Were you contacted by the company in any way to say, "We've reached a position on the concerns that were raised on 11 May. Here they are"?‑‑‑No.
PN1813
So when you attended the 18 May meeting, which you've said you believed to be a bargaining meeting, you went in with the intention to bargain?‑‑‑Yes.
PN1814
Did everyone else?‑‑‑As far as I'm aware, yes.
*** SCOTT MARTIN XN MR HANSON
PN1815
How was the discussion between the bargaining representatives prior to management entering the room?‑‑‑Well, we sat down as a group and I put on the table that I thought there was going to be a phone hook-up organised by the company for the reps to talk to the WA crews. That hadn't been done. The guys were a bit bewildered as to why that hadn't been done. They were under the same impression as I was. So we discussed that and when the company came in we asked them about that and queried them and their response was they thought we were organising it. How the employees are meant to do that I don't know, but that was the response.
PN1816
You mentioned that previously they had arranged other telephone conferences - - -?‑‑‑Yes.
PN1817
- - without your assistance?‑‑‑Yes.
PN1818
The AWU are great communicators but in your experience is it common for bargaining representatives to arrange interstate telephone conferences?‑‑‑Yes.
PN1819
It is common or it is not common?‑‑‑Bargaining reps, sorry?
PN1820
Yes?‑‑‑No, bargaining reps, no, sorry - no.
PN1821
Okay, so I'll ask that question again just for purposes of clarity - I'll leave off the self-promotion bit - is it common for employee bargaining representatives to arrange interstate telephone conferences as part of bargaining meetings?‑‑‑No.
PN1822
Okay. Was any explanation other than they thought you were going to organise it given for the failure to organise that?‑‑‑It wasn't me per se - I think they were looking at the group. I think they said it was the group that was meant to organise it and instigate it and no one had come to see them so it hadn't been arranged.
PN1823
But at the time they said that, were you still under the impression you were bargaining or had they informed you, "By the way" - - -?‑‑‑No, no - still under the impression - - -
PN1824
Still under the impression you were bargaining at that stage?‑‑‑Yes.
PN1825
Did they say then, "Don't worry, we'll organise that for the next meeting"?‑‑‑No, just said it wasn't going to go ahead and then proceeded to produce a letter that the company had put out to the crews on the 17th to say that they were going to put the agreement out for vote.
PN1826
Okay. On the document 0621 that you have there - 0621 - - -?‑‑‑Yes.
PN1827
- - now this is an email that Sandra Thorp appears to be the author, I think. Do you know Sandra Thorp?‑‑‑Not personally, no.
*** SCOTT MARTIN XN MR HANSON
PN1828
Sorry: do you know her as part of the - - -?‑‑‑Yes, yes.
PN1829
Then we go down a little bit and there is Megan Dyer. For the purposes of the negotiations did you know Megan Dyer?‑‑‑No.
PN1830
Okay, all right. Right at the bottom of that email is a dot point that says: "One-off hook-up phone with other sites. Tariro to facilitate with other project managers." You mentioned in the meeting of the 18th they didn't say if they were going to arrange more telephone hook-ups, is that correct?‑‑‑That just said it: they weren't aware that they had to arrange the one for the 18th and that's where we left it.
PN1831
What position does Sandra Thorp hold with the company?‑‑‑I believe she's the HR manager, for want of a better term.
PN1832
I note on the 0622 that Ms Dyer is the human resources adviser. So you did not ask for further telephone conferences once you'd been told, "We're putting it out to a vote"?‑‑‑It wasn't much point because the company made it very clear they weren't entering negotiations and they'd already sent a letter out to the staff, to the crews, and the members to say they were putting it out for a vote on - I think it was the 23rd and they were going to instigate a cooling-off period. So I don't think it was much point having the telephone hook-up with WA if the agreement was going to be put out for a vote.
PN1833
So to your mind those phone conversations which appear were being facilitated were not regarding bargaining?‑‑‑No.
PN1834
They weren't to involve you, as a bargaining representative?‑‑‑No.
PN1835
On 11 May you asked for telephone conferences to occur and then that didn't happen for the 18th?‑‑‑That's right.
PN1836
They told you that you were meant to organise them?‑‑‑Well, the crew, in general, yes: not me personally but the crew in general. The point came back from Tariro that, "We didn't think it was up to us. We thought you were going to organise that phone hook-up", as in general group.
PN1837
That's much better put than I did. If I take you to 0623, this is a letter of 17 May: when did you receive that letter?‑‑‑On the 18th; one of the members gave it to me when I arrived at the meeting.
*** SCOTT MARTIN XN MR HANSON
PN1838
Okay, so it was given to you by a member?‑‑‑Yes.
PN1839
Are you a member of the consultative committee?‑‑‑No.
PN1840
Was that person a member of the consultative committee?‑‑‑I don't know. I would have thought it would have been sent to the bargaining committee who were there on the 11th so I'm not sure who is on the consultative committee. All I know is the bargaining rep gave this to me when I arrived. That was the first time I was aware that a letter had even been put out on site.
PN1841
Yes. On this document, if I take you to - well, I'll take you to the first hyphen point: it says, "Protection of contract employment terms." There's a number of paragraphs there. I'm sure you've had a chance to read this previously?‑‑‑Yes.
PN1842
Do you feel as a bargaining representative that that addressed employee concerns in regards to that point?‑‑‑No, because we left the 11th meeting by basically saying - and the crew said to the management - what you're telling us is you want us to trust you. That's basically what they said. You're not going to put nothing in writing, you're not going to assure it. We asked the question and they made it very clear that they weren't going to play around what they - assumed they weren't going to play around with the preserved rates of pay but when we said, "Well, if that's the case why won't you put it into an EBA? If you're not going to touch them it's not going to do anything and you're going to confirm that they're there. Why don't you just put them in the EBA if that's what it's going to take to make your employees a bit at ease?" Now, whether they would have been happy with the overall issues that we had, because there was still some outstanding stuff on the minutes but that was the over-riding concern and they basically - in this letter, it's no different to what they said to us on the 11th. They basically said, "Look, trust us. You know, we're not going to touch them."
PN1843
If I take you to the second hyphen point: "Amendments from the initial proposal", it says, "During the consultation process you've raised additional items for our consideration and I wish to confirm we have agreed to include the following" - now, that appears to be a summary of some hyphen points there: six, I believe?‑‑‑Yes.
PN1844
Six? Do those six hyphen points allay the many concerns raised by employees?‑‑‑I guess if they were included in the overall agreement rather than individual contracts they may have, yes.
PN1845
No further questions.
*** SCOTT MARTIN XN MR HANSON
PN1846
MR FLETCHER: I won't be long, I promise.
PN1847
MR HARDIE: I've heard that before.
MR FLETCHER: I'm sure on a minute-to-minute basis I've probably got not bad statistics. Steady on.
CROSS-EXAMINATION BY MR FLETCHER [6.49 PM]
PN1849
MR FLETCHER: Okay, we started on page 623 - or we finished on page 623, that's the letter from Mr Spibey, yes?‑‑‑Yes.
PN1850
Can you just go to page 624 and he says there, "Voting process" - can you see that?‑‑‑Yes.
PN1851
Would you agree that although he's advising that the company has decided that it's going to put an agreement out for a vote that the access period - as in the time in which an employee has to consider the agreement before voting on it - on that summary doesn't start until 23 May? Would you agree with that?‑‑‑Yes.
PN1852
As it did start on 23 May and ran until - with the vote starting on 8 June, that's along with the normal access period, isn't it?‑‑‑Yes.
PN1853
The normal access period or the statutory requirement for an access period is seven days and yet BGC has opted for what looks like - by my calculations that looks like 15 days; two weeks almost - sorry, just over two weeks, correct?‑‑‑Yes.
PN1854
If we can just go back to page 621, I think you gave evidence that there was always an intention that the meeting on the 18th would not just be a bargaining reps-only meeting; that it would be a meeting that management would attend as well?‑‑‑Yes.
PN1855
Just looking at the first paragraph under, "Dear Sandra" - can you just read that out?‑‑‑"There was a rep-only meeting held at Whyalla today. Tariro, Russell and I joined the meeting at the reps' request to hear any issues and provide further explanation if required."
*** SCOTT MARTIN XXN MR FLETCHER
PN1856
Does that suggest to you that the request happened on the day?‑‑‑What request was that?
PN1857
Well, for Tariro, Russell and I to join the meeting?‑‑‑I wasn't aware of that. I was informed that there was a bargaining meeting on the 11th from one of my members and asked if I could attend and I sent an email to - I think it was Corrina that got forwarded on to Sandra, because I think Corrina might not have been with the business any more. I attended without any specific details. I was under the impression it was a bargaining meeting with management.
PN1858
So you were under the impression?‑‑‑Yes.
PN1859
But it might have been a false impression?‑‑‑I don't know.
PN1860
Yes, okay?‑‑‑Not according to me; not according to the information that I had supplied.
PN1861
But it wasn't an absolute - it wasn't a confirmation from the company that it was a company and bargaining reps meeting?‑‑‑I got a confirmation email back to say that the meeting was - but it didn't actually specify whether it was bargaining reps only, just that there was a meeting and this was the time and the date and I was able to attend.
PN1862
Yes, and where did you first become aware that BGC had commenced a bargaining process?‑‑‑Look, again, I'm going by memory but it probably would have been around that April time, I suppose. I can't recall if I received any information from the company. I may have. The usual course of action is you get invited to bargaining meetings. That never happened.
PN1863
Well, usual course of action, that means - that's a reference to your work with Arrium?‑‑‑No, work with any company.
PN1864
So you have an expectation that if there is bargaining happening that you will be invited to a bargaining meeting?‑‑‑Once representational rights are issued that's what usually happens - - -
PN1865
You're automatically invited?‑‑‑ - - if you're a party to the agreement, yes, which we were.
*** SCOTT MARTIN XXN MR FLETCHER
PN1866
Well, you weren't a party to - the AWU wasn't a party to the mining agreement, was it?‑‑‑We had been previously.
PN1867
But you're not a party to the mining agreement. You're covered by the mining agreement but you're not a party to it?‑‑‑I'd have to check on that. We have been previously with HWE and then the agreement that they took over from HWE.
PN1868
I put it to you that you're covered, you're not a party?‑‑‑I acknowledge that.
PN1869
So my original question was when did you first become aware?‑‑‑Probably early - well, again, I'm going on memory. When I got contacted by a member it was early May.
PN1870
Yes?‑‑‑Being aware of the agreement? I couldn't say: it would have to be around that April/May time.
PN1871
Your email to BGC indicating you wanted to get involved - if you can just turn to page 591; that was sent on 10 May?‑‑‑Yes.
PN1872
So that's your first contact with BGC in terms of wishing to be involved in the bargaining process?‑‑‑Yes.
PN1873
Then you attended a meeting on the 11th?‑‑‑Yes.
PN1874
You didn't attend a meeting on the 13th?‑‑‑I wasn't invited to that one and that was - - -
PN1875
No, that's okay. Then you did attend a meeting on the 18th?‑‑‑Yes.
PN1876
Yes. We mentioned before about the fact that there was - Martin Spibey's letter on the 17th, which came in or was provided to you by a bargaining representative, is that right?‑‑‑Yes.
PN1877
Another bargaining representative - and that letter we've agreed said that the access period would start on 23 May. Did you attempt, between 23 May - sorry, between the meeting on the 18th and 23 May to try and get the company to change its mind and change its position before the access period started?‑‑‑No. I thought their actions on the 18th gave me the impression that they weren't prepared to enter any more negotiations. They made that very clear.
*** SCOTT MARTIN XXN MR FLETCHER
PN1878
So you had formed the view that they were putting the deal out there and that the next stage was to see what happened in the vote?‑‑‑Yes.
PN1879
Had you formed the view that you would run a no campaign?‑‑‑I didn't run any campaign. My members instructed me that they weren't keen on the agreement and they wanted to vote it down.
PN1880
Okay. Did you do any right of entries in that period?‑‑‑No.
PN1881
Did you do any right of entries in the period between 30 March and when the vote occurred?‑‑‑No.
PN1882
have you done any right of entries since the vote occurred?‑‑‑No.
PN1883
You mentioned that in the context of page - there's a slide on page 4, I think it is, that talks about - sorry, 7; I apologise. I take you to page 7: there's a slide there that talks about - it's got some summaries of some enterprise agreements; recent changes to enterprise agreements?‑‑‑Yes.
PN1884
You were asked about the first bullet point, which is the UGL Olympic Dam EA variation?‑‑‑Yes.
PN1885
You said that it wasn't a 10 per cent wage reduction. How much was the wage reduction?‑‑‑I believe in 2015 there was a wage reduction but not in 2016.
PN1886
Okay, so the error was in the timing, not in relation to the amount?‑‑‑Yes.
PN1887
Okay. So - sorry, one more question: you also said when you were talking about the frequently-asked questions that - and perhaps if you can - can you recall what you said about what members were saying or other members involved in bargaining were saying to you about the frequently-asked questions?‑‑‑I don't recall being asked anything about frequently-asked questions but I'll answer your question: all they said was there was a heap of F and Qs being put out there and they're not sure where they came from.
PN1888
FAQs, you mean?‑‑‑Yes.
PN1889
So just repeat that? There were - - -?‑‑‑What was the question?
*** SCOTT MARTIN XXN MR FLETCHER
PN1890
I think you said there was - - -
PN1891
THE DEPUTY PRESIDENT: He'd just really like you to say a rude word?‑‑‑Look, I'd been presented with about three or four of them that had been already put out before I'd been involved with the bargaining.
PN1892
MR FLETCHER: I think the words that you used in the context of answers - so whether or not this is just the FAQs - was that people weren't getting the answers in the manner or form they would like?‑‑‑Yes.
PN1893
So was the manner and form a reference to the fact that they were going out as written FAQs?‑‑‑I think it was a bit of both - I think it was that the information going out was okay if that was the main problems and the questions were actually being asked from the site. From the feedback I was getting is that a lot of the questions on there, the guys said wasn't coming from the site and the questions that they wanted answered in the bargaining meeting weren't being addressed.
PN1894
So tomorrow we'll hear evidence that every one of the questions that followed the first FAQ was a question that had been put by a site?‑‑‑South Australian site or Western Australian?
PN1895
All sites - if I put that to you - - -?‑‑‑If there's evidence to prove that then of course I'm going to agree with it but as I said to you right now I can't say yes or no to that because I don't know.
PN1896
Okay. No further questions. Thank you very much.
PN1897
MR HANSON: Some minor re-examination - - -
PN1898
THE DEPUTY PRESIDENT: I note Mr Fletcher said he was going to have one more question and six questions later he finally sat down.
MR FLETCHER: I shouldn't have said that.
RE-EXAMINATION BY MR HANSON [7.00 PM]
PN1900
MR HANSON: Mr Martin, it was mentioned by my friend that between March 2016 and May 2016 you might not have made any right of entries. Did you take any leave during that period at all?‑‑‑Yes, yes - I was on leave for six weeks.
*** SCOTT MARTIN RXN MR HANSON
PN1901
Six weeks of leave, okay?‑‑‑It was actually eight weeks - - -
PN1902
Two months?‑‑‑Eight weeks.
PN1903
Two months, okay - and was there another organiser responsible for your duties while you were on leave?‑‑‑Yes, but he was extremely busy and whether he was on top of everything that was going on at BGC - I can't answer that specifically today but there was someone else who was chasing up stuff for me.
PN1904
Sure. It's made a point at document 0624 about the voting process, you may recall if you take a look - - -?‑‑‑Yes.
PN1905
- - about whether or not you contacted the company during the access period. Did you company contact you during the access period?‑‑‑No, not to my knowledge.
PN1906
Did any bargaining - to your knowledge - occur during the access period?‑‑‑No.
PN1907
On 0621 there was the email of Sandra Thorp. This may be a bit of a cute question but I'm going to ask it anyway: did you have any input on this email?‑‑‑No.
PN1908
Did you control anything that's written in this email between these two people?‑‑‑No.
PN1909
On the document 0612 - sorry, I'll go a bit further - 0610 and 0609 is the minutes of the consultative committee. How were these provided to you?‑‑‑I think they were sent out over email after 11 May.
PN1910
Okay, and are they sent out in the fashion of - - -?‑‑‑I'm going on memory there, so - - -
PN1911
When they were sent to you were they sent in the fashion of, "Check these, see if they're right and send them back", or are they a PDF document?‑‑‑No, basically PDF document of what was said and done.
PN1912
So it's safe to say that you didn't have any input on those minutes either, did you?‑‑‑No.
*** SCOTT MARTIN RXN MR HANSON
PN1913
This is the last point I seek to make - - -
PN1914
MR FLETCHER: Last question you seek to ask.
PN1915
MR HANSON: See, I use different language - you're only prolonging it. There was some issue made of covered versus party. That largely may be a bit of an industrial concern but in regards to that you mentioned that the company is aware of the AWU?‑‑‑Yes.
PN1916
How are they aware?‑‑‑Well, when they first came to Whyalla they took over the SMR site that was previously run by a contract under the name of HWE. They took on the HWE agreement, of which we were a major party of that agreement and then we negotiated with BGC because they wanted to pay the employees under that agreement less than what we had bargained and they didn't want to factor in some pay rises that had been agreed into that EBA. So, yes, when they first got into town we were discussing with them thoroughly things about the previous EBA so they definitely know who we are and we let them know we're in town. I had a correspondence with Corrina Tolomei, I think the name was, before Sandra Thorp came on board.
PN1917
But did Sandra Thorp know the AWU existed?‑‑‑I would have thought so, yes.
PN1918
So that's what you mean when you say, "I expected to be contacted"?‑‑‑Yes, yes.
PN1919
It's not like you just sit in your office waiting to be contacted?‑‑‑No, we've got lots of stuff to do and as I said, the normal course of action is you get correspondence from companies to say they're ready to begin bargaining and then they give you a schedule of meetings.
PN1920
Okay, no further questions.
PN1921
THE DEPUTY PRESIDENT: Thank you, anyone else?
PN1922
MR HANSON: Well, one point - I'm not sure if I tendered Mr Martin's statement.
THE DEPUTY PRESIDENT: A12.
EXHIBIT #A12 WITNESS STATEMENT OF SCOTT MARTIN
*** SCOTT MARTIN RXN MR HANSON
PN1924
MR HANSON: I will also tender - - -
THE DEPUTY PRESIDENT: The F18 stat dec in relation to Mr Martin is marked A12.
<THE WITNESS WITHDREW [7.05 PM]
PN1926
MR HANSON: Yes.
PN1927
THE DEPUTY PRESIDENT: Just a couple of things before we adjourn for the day: by the morning I will need a list of any documents which the parties say I should not give weight to out of the bundle of documents. I need confirmation of which version of the Bolitho and Whitlock statements we're going with.
PN1928
MR BONCARDO: I can do that now, your Honour, and I apologise for the confusion. I take full responsibility for it. The witness statements tendered - - -
PN1929
THE DEPUTY PRESIDENT: You can provide the chocolate tomorrow.
PN1930
MR FLETCHER: I'm calling apprehended bias.
PN1931
THE DEPUTY PRESIDENT: I've only got one bit left so we've got to go soon.
PN1932
MR BONCARDO: I'll fix that tomorrow, your Honour. The statements tendered with signatures on them - - -
PN1933
THE DEPUTY PRESIDENT: Yes.
PN1934
MR BONCARDO: - - are the ones that should be received into evidence.
PN1935
THE DEPUTY PRESIDENT: Okay.
PN1936
MR BONCARDO: I've spoken to Mr Fletcher about that and there is no issue with those documents being the ones received.
*** SCOTT MARTIN RXN MR HANSON
PN1937
MR FLETCHER: The only thing we'd just ask is if we could be - if they're tendered, if we could get copies sent to us from chambers, just so that we know which ones we've got? Thank you.
PN1938
MR BONCARDO: I can't be heard against that, your Honour, except to say that I'll provide Mr Fletcher a copy as well.
PN1939
THE DEPUTY PRESIDENT: Mr Hanson, I know the directions required filing of written submissions by a specified date. However, you've indicated that you're relying on the separate new submissions and since that date those submissions - some of those have been withdrawn. If there are written submissions that you want to make you should make them in writing and have them ready to tender in the morning. It might be very difficult for you to do closing submissions without some written submissions to reference them by.
PN1940
MR HANSON: Yes.
PN1941
THE DEPUTY PRESIDENT: Okay. The parties might like to consider overnight and may choose to address this in their closing what authorities there is or legislative provisions which require or impose upon the employer an obligation for the bargaining reps to act collectively or to resource them. Whether the provision in section 188 that an agreement must be genuinely agreed - whether the fact that it got voted up is sufficient or whether that section of the Act has to be given some force or meaning by requiring something other than just the sheer number of yes votes, in which case the evidence which is currently before me is really largely of hearsay nature in relation to what was driving the - the evidence that it wasn't genuinely agreed by the WA employees, that it was voted up without genuine agreement - at the moment the best evidence I've got is of the South Australian witnesses who gave evidence about what discussions they had with their WA counterparts.
PN1942
There has been a lot of evidence as to why South Australian employees didn't vote it up by the only insights we've got into the minds of the West Australians is indirect evidence and a limited amount of indirect evidence from the South Australian witnesses. So the parties all might like to consider whether there is - what evidence is available to assist me in that regard. I've not drawn any conclusions about whose evidentiary obligation that is but I would note that clause, section 108, must have some work to do and so if it's challenged that it's not genuinely agreed there has to be some evidence of what supports that assertion.
PN1943
Whether there is any conclusions I can or should draw from the fact that no challenge has been made to the registration of mainly WA branches of the unions; whether that goes to whether the approval in WA, the employees who approved the agreement, were satisfied that the agreement should be approved; that's all. Is there any other housekeeping any of the parties want to raise?
PN1944
MR HANSON: Only one thing, just to completely clarify, Deputy President: the written submissions you request - are those for matters I'm raising for outside of what other parties have raised or written submissions?
PN1945
THE DEPUTY PRESIDENT: The written submissions of the AWU - so if you only seek to rely on the submissions of the other parties, that's fine, but I note that some of the submissions which you said at opening you wanted to rely on have been since withdrawn by the CFMEU.
PN1946
MR HANSON: Yes.
PN1947
THE DEPUTY PRESIDENT: So if you seek to rely on anything that's not been put by other parties you should put that in writing by the morning.
PN1948
MR HANSON: Yes, that was my understanding. I just wanted to make sure I was correct.
PN1949
THE DEPUTY PRESIDENT: Anything else? Okay, the matter is currently listed for a 9 am start: are we comfortable that we can get through the material by 3.30 because otherwise I can start earlier?
PN1950
MR FLETCHER: Well, I'm calling three witnesses, your Honour. I'd really be guided by cross-examination. I'm not sure - each of the advocates wish to cross-examine or is it a case of - - -
PN1951
THE DEPUTY PRESIDENT: Well, presuming that there's not a lot more evidence-in-chief?
PN1952
MR FLETCHER: No, no.
PN1953
THE DEPUTY PRESIDENT: And the parties are aware of what actually needs to be cross-examined - - -
PN1954
MR FLETCHER: The evidence-in-chief will be quite limited.
PN1955
THE DEPUTY PRESIDENT: Okay. Is there an indication that it's going to go longer and we need to start earlier?
PN1956
MR BONCARDO: Not so far as I think Mr Thomas and I are concerned, your Honour. I don't envisage cross-examination being too lengthy. I was going to even suggest we start a little bit later but I think that might be dangerous.
PN1957
THE DEPUTY PRESIDENT: Mr Hardie, do you - - -
PN1958
MR HARDIE: Yes - I only wish to be involved in cross-examination of Ms Tolomei.
PN1959
THE DEPUTY PRESIDENT: Do you imagine that will be lengthy?
PN1960
MR HARDIE: Look, it will be - what do you mean lengthy?
PN1961
THE DEPUTY PRESIDENT: I will apply the multiplier effect to whatever number you give us, so - are we going to get it done in time? Yes, okay, thank you. Mr Hanson, do you see any difficulties in completing the matter if we start at 9 am tomorrow?
PN1962
MR HANSON: I don't - no, I don't, no; it should be fine.
PN1963
THE DEPUTY PRESIDENT: Okay, thank you. Okay, if there's nothing further?
ADJOURNED UNTIL THURSDAY, 20 OCTOBER 2016 [7.13 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
GARY NORMAN WOOD, AFFIRMED........................................................... PN175
EXAMINATION-IN-CHIEF BY MR THOMAS.............................................. PN175
EXHIBIT #A1 WITNESS STATEMENT OF GARY NORMAN WOOD DATED 2 SEPTEMBER 2016............................................................................................... PN183
EXHIBIT #A2 WITNESS STATEMENT OF GARY NORMAN WOOD DATED 27 SEPTEMBER 2016............................................................................................... PN192
CROSS-EXAMINATION BY MR FLETCHER.............................................. PN194
RE-EXAMINATION BY MR THOMAS........................................................... PN226
THE WITNESS WITHDREW............................................................................ PN235
SCOTT CHARLES WHITLOCK, SWORN..................................................... PN243
EXAMINATION-IN-CHIEF BY MR BONCARDO........................................ PN243
EXHIBIT #A3 WITNESS STATEMENT OF SCOTT CHARLES WHITLOCK PN256
CROSS-EXAMINATION BY MR FLETCHER.............................................. PN267
THE WITNESS WITHDREW............................................................................ PN319
PAUL TREVOR BOLITHO, SWORN............................................................... PN323
EXAMINATION-IN-CHIEF BY MR BONCARDO........................................ PN323
EXHIBIT #A4 WITNESS STATEMENT OF PAUL TREVOR BOLITHO. PN341
EXHIBIT #A5 DOCUMENT............................................................................... PN406
EXHIBIT #A6 MINING ENTERPRISE AGREEMENT 2016 DATED MARCH 2016 PN417
CROSS-EXAMINATION BY MR FLETCHER.............................................. PN418
RE-EXAMINATION BY MR BONCARDO..................................................... PN614
THE WITNESS WITHDREW............................................................................ PN619
KYM ASHTON SWANBURY, SWORN........................................................... PN620
EXAMINATION-IN-CHIEF BY MR BONCARDO........................................ PN620
EXHIBIT #A7 STATEMENT OF KYM SWANBURY OF 13 PARAGRAPHS PN640
CROSS-EXAMINATION BY MR FLETCHER.............................................. PN650
THE WITNESS WITHDREW............................................................................ PN721
RYAN WAKE, SWORN...................................................................................... PN726
EXAMINATION-IN-CHIEF BY MR HARDIE................................................ PN726
THE WITNESS WITHDREW............................................................................ PN874
RYAN WAKE, RECALLED.............................................................................. PN875
EXAMINATION-IN-CHIEF BY MR HARDIE, CONTINUING................... PN875
EXHIBIT #A8 WITNESS STATEMENT OF RYAN WAKE WITH ATTACHMENTS 1-25............................................................................................................................... PN1018
EXHIBIT #A9 (CONFIDENTIAL) DECLARATION OF RESULT........... PN1021
THE WITNESS WITHDREW.......................................................................... PN1055
RYAN WAKE, RECALLED............................................................................ PN1055
CROSS-EXAMINATION BY MR FLETCHER............................................ PN1055
CROSS-EXAMINATION BY MR BONCARDO........................................... PN1301
RE-EXAMINATION BY MR HARDIE.......................................................... PN1310
THE WITNESS WITHDREW.......................................................................... PN1339
GEOFFREY DONALD FIEBIG, SWORN..................................................... PN1343
EXAMINATION-IN-CHIEF BY MR HARDIE.............................................. PN1343
EXHIBIT #A10 STATEMENT OF GEOFFREY FIEBIG............................ PN1352
CROSS-EXAMINATION BY MR FLETCHER............................................ PN1509
THE WITNESS WITHDREW.......................................................................... PN1551
STEVEN MCMILLAN, AFFIRMED.............................................................. PN1564
EXAMINATION-IN-CHIEF BY MR HARDIE.............................................. PN1564
EXHIBIT #A11 F18 STATUTORY DECLARATION OF STEVEN MCMILLAN PN1587
CROSS-EXAMINATION BY MR FLETCHER............................................ PN1658
THE WITNESS WITHDREW.......................................................................... PN1744
SCOTT MARTIN, SWORN.............................................................................. PN1752
EXAMINATION-IN-CHIEF BY MR HANSON............................................. PN1752
CROSS-EXAMINATION BY MR FLETCHER............................................ PN1848
RE-EXAMINATION BY MR HANSON......................................................... PN1899
EXHIBIT #A12 WITNESS STATEMENT OF SCOTT MARTIN............... PN1923
THE WITNESS WITHDREW.......................................................................... PN1925
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