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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1054092
DEPUTY PRESIDENT BINET
AG2016/3592
s.185 - Application for approval of a single-enterprise agreement
Application by BGC Contracting Pty Ltd
(AG2016/3592)
Adelaide
9.01 AM, THURSDAY, 20 OCTOBER 2016
Continued from 19/10/2016
PN1964
THE DEPUTY PRESIDENT: Housekeeping first. Mr Hanson, do you have any written submissions that you would like to submit?
PN1965
MR HANSON: No, I'm willing - I'm not sure if the microphones are on so I don't know why I'm leaning forward.
PN1966
THE DEPUTY PRESIDENT: The transcript service assure us that they can hear you in whatever dark room they are in in Melbourne.
PN1967
MR HANSON: Excellent. Dark rooms in Melbourne, that's a good way to start this morning. The AWU is willing to withdraw its original position of additional submissions and simply rely on the position of and submissions of Mr Boncardo in regards to this matter.
PN1968
THE DEPUTY PRESIDENT: Thank you. So just bear with me one second. Mr Boncardo.
PN1969
MR BONCARDO: Your Honour asked me yesterday afternoon to jot down why I said that certain parts of Mr Fletcher's tender bundle - - -
PN1970
THE DEPUTY PRESIDENT: Yes, which parts you had - - -
PN1971
MR BONCARDO: I had issues with. I've done that.
PN1972
THE DEPUTY PRESIDENT: Excellent.
PN1973
MR BONCARDO: Can I hand your Honour a copy. I've distributed a copy to my friends. As I said yesterday I'm not going to go through the torturous process of objecting to each individual discreet item. Your Honour has there a table outlining why generally speaking a lot of these documents are either entirely irrelevant, otherwise inadmissible and otherwise so prejudicial to the objectives that ought not to be taken into account by the Commission. Your Honour has there my suggested weight that they ought be accorded which fluctuates between none and limited.
PN1974
THE DEPUTY PRESIDENT: No, no, tiny little bit.
PN1975
MR BONCARDO: But I've done it in the interests of efficiency, your Honour.
PN1976
THE DEPUTY PRESIDENT: Excellent, thank you.
PN1977
MR BONCARDO: So Mr Fletcher can hand up his documents and no doubt speak to them if needs be but so your Honour has a record of why I say you should accord them no weight at all, in a lot of cases.
PN1978
THE DEPUTY PRESIDENT: No weight or a little tiny bit.
PN1979
MR BONCARDO: Or a little tiny bit, generally not even that much.
PN1980
THE DEPUTY PRESIDENT: Thank you. Mr Fletcher, at the end of the day before we adjourn, I'll give you the opportunity to either provide some written notes if you challenge any of these or provide some oral submissions if there's any that you challenge.
PN1981
MR FLETCHER: That's not a problem at all, Deputy President, and I'm suspecting that some of the material may be proven through oral examination this morning, so that may affect it and if it does I'll make an appropriate comment.
PN1982
THE DEPUTY PRESIDENT: Yes. If there are documents which are challenged that you contend are through witnesses today that would be useful because then that's resolved at that point.
PN1983
MR FLETCHER: Yes, yes, and I will be asking some questions to that effect. My witnesses have their own copies of the book and to keep things moving along quickly, I'll have them referring to page numbers in the book. So just putting the Bench on notice that it'll be worthwhile having a copy of the book handy. Thank you.
PN1984
THE DEPUTY PRESIDENT: All good. Mr Hanson, yesterday when you had your witness Mr Martin in the witness box I've marked the F18 stat dec. Did you want me to mark his written statement which you also filed?
PN1985
MR FLETCHER: I'll say yes just to assist and ease proceedings through this morning, yes.
PN1986
THE DEPUTY PRESIDENT: Yes. No one has any objections to that?
PN1987
MR BONCARDO: No.
THE DEPUTY PRESIDENT: So I'm going to mark the statement of Mr Martin A13.
EXHIBIT #A13 WITNESS STATEMENT OF SCOTT MARTIN
PN1989
Do any of the counsel have any housekeeping before we start today? No?
PN1990
MR HARDIE: Just briefly.
PN1991
THE DEPUTY PRESIDENT: You want me to speak louder?
PN1992
MR HARDIE: Yes, look, I'm convinced I need to go and have a hearing test because everyone's sitting here quite comfortably listening to you. I don't know whether it's - - -
PN1993
THE DEPUTY PRESIDENT: Maybe they're just nodding, maybe they're not paying any attention to what I say.
PN1994
MR HARDIE: I guess I'm thrown by the fact that - - -
PN1995
THE DEPUTY PRESIDENT: You laughed a little too loud to that, Mr Hanson.
PN1996
MR HARDIE: - - - they're not working. They are?
PN1997
THE ASSOCIATE: Every time you tap (indistinct).
PN1998
THE DEPUTY PRESIDENT: There's about to be a SWAT squad come up from Melbourne. Your body is going to be found in a river shortly.
PN1999
MR HARDIE: Or in a dark room.
PN2000
THE DEPUTY PRESIDENT: Right. Mr Fletcher.
PN2001
MR FLETCHER: Yes. If I can call Mr Ruwiza please. I should say, Deputy President, as foreshadowed yesterday I'm not going to go through a detailed opening as our case is essentially a responsive one, even though it's our application. I think it will save time if we get straight into the witnesses and I will just be repeating myself if I were to give an opening and then in a few hours' time give a closing.
PN2002
THE DEPUTY PRESIDENT: Give a closing.
PN2003
MR FLETCHER: That's right. So if I could call Mr Tariro Ruwiza.
PN2004
THE ASSOCIATE: Please state your full name and address.
MR RUWIZA: Tariro Ruwiza, (address supplied).
<TARIRO RUWIZA, AFFIRMED [9.08 AM]
EXAMINATION-IN-CHIEF BY MR FLETCHER [9.08 AM]
PN2006
THE DEPUTY PRESIDENT: Have a seat please. You can have a seat?‑‑‑I'll stand first.
PN2007
You prefer to stand?‑‑‑Yes.
PN2008
Right?‑‑‑Then I'll sit down as we go.
PN2009
Given how long it took some witnesses yesterday, I'll see how you go with that.
PN2010
MR FLETCHER: Mr Ruwiza, can you tell me your occupation?‑‑‑I'm senior project manager at the BGC Contracting Whyalla operations, so looking after South Middleback Ranges and the Iron Knob.
PN2011
Thank you. Have you filed a witness statement in these proceedings?‑‑‑Yes.
PN2012
Do you have a copy of that witness statement in front of you?‑‑‑Yes, I do.
PN2013
Now the copy of that witness statement, does that have blue numbering at the top?‑‑‑Yes, it does.
PN2014
What's the first number that you can see on the first page of your statement?‑‑‑Number 120.
*** TARIRO RUWIZA XN MR FLETCHER
PN2015
So just for the record, the version of Mr Ruwiza's statement that he's looking at has the blue number 120 at the top and it matches tab 15 of the applicant's court book. So you've got your statement in front of you, Mr Ruwiza?‑‑‑Yes, I've got the statement here.
PN2016
You said that you instructed K&L Gates to file this statement for you in these proceedings?‑‑‑Yes, I did.
PN2017
Is it a true and correct statement?‑‑‑Yes.
PN2018
To the best of your knowledge?‑‑‑Yes.
PN2019
Mr Ruwiza, can I take you to page 181 of the blue numbering?‑‑‑Yes, I'm there.
PN2020
Can you tell me what that document is?‑‑‑So that document is the retain appointment of the employee by getting representatives.
PN2021
That type of document appears from page 181 to where?
PN2022
181 to 189. Can you tell me how the documents from page 181 to 189 came to be in your possession?‑‑‑This was delivered to me by the respective department superintendents after we did the rollout for the EA negotiation process, and this was for the employees appointing their own employee by getting representatives in writing.
PN2023
Can you tell me about BGC's involvement in the preparation of these documents?‑‑‑BGC Contracting was not involved in the preparation of this document. The employees prepared this document by themselves, so to that you can see that the top portion of this document is all different because it has the different crews that way, putting it in their own words and format, the appointment of their bargaining representatives.
PN2024
Can I take you to page 185. Can you tell me or can you give an explanation for how the BGC logo appears on the documents that's in page 185?‑‑‑So I can't give you an explanation on that. This document was not supplied by BGC, we had nothing to do with the preparation of this document.
PN2025
So how is it possible that it may have got a BGC logo on it?
*** TARIRO RUWIZA XN MR FLETCHER
PN2026
MR BONCARDO: I object to the question. He's asking this witness to speculate about a document he says he knows absolutely nothing about.
PN2027
MR FLETCHER: Well, if I could proceed. He knows nothing about the document.
PN2028
THE DEPUTY PRESIDENT: The question's in the wrong order.
PN2029
MR FLETCHER: So Mr Ruwiza, can you tell me of the sum total of involvement of BGC in the preparation of these documents?‑‑‑BGC was not involved in the preparation of this document. The employees are who nominated themselves, some of them have access to our computer system. We do have leading hands who are part of the EA bargaining process, so they can access the BMS in our H drive. But BGC was not involved in the preparation.
PN2030
What did you tell employees when they said - when they indicated an interest in being bargaining reps?‑‑‑We told employees to make sure that they nominate their own representatives for this process in writing if they wanted them to be recognised as employee representative for this process. Some came in self-represented, some came without being nominated for some of the group meetings that we had. But these are said in the notice of representational rights which was issued with the original pack that we issued all the employees in a separate envelope.
PN2031
Thank you. Can you describe the consultation process that you undertook as the person with overall responsibility for enterprise bargaining in South Australia, from 30 March until the completion of the vote?
PN2032
MR BONCARDO: I object to the question. Mr Ruwiza has filed a statement which is lengthy. This is evidence if you like in-chief on the run. I appreciate - - -
PN2033
MR FLETCHER: Come on.
PN2034
THE DEPUTY PRESIDENT: That's familiar.
PN2035
MR BONCARDO: Mr Fletcher didn't object yesterday. I'm objecting now.
PN2036
MR HANSON: Mr Fletcher did object.
*** TARIRO RUWIZA XN MR FLETCHER
PN2037
THE DEPUTY PRESIDENT: Mr Fletcher did object several times.
PN2038
MR BONCARDO: Well, I'd like your Honour to note that I am objecting.
PN2039
THE DEPUTY PRESIDENT: I'll note your objection. We'll note your objection. I'll have to afford - given I afforded Mr Hardie some considerable leeway yesterday, I'm going to have to as a matter of equity afford Mr Fletcher some, but I do note your objection, as I noted Mr Fletcher's yesterday.
PN2040
MR BONCARDO: Thank you, your Honour.
PN2041
THE DEPUTY PRESIDENT: And ignored it.
PN2042
MR FLETCHER: Do you want me to repeat the question, Mr Ruwiza?‑‑‑Yes, please.
*** TARIRO RUWIZA XN MR FLETCHER
PN2043
As the person with overall responsibility for operations and the conduct of the enterprise bargaining negotiations in South Australia, can you describe in your own words the consultation process that you undertook with employees from 30 March this year until the completion of the vote?‑‑‑Right. So from 30 March I co-presented the initial rollout package with our chief executive officer, Greg Heylen. There was a portion that he presented, I presented one of the other portions. I also went through the FAQ one with the employees. So we went through the pack, went through the FAQs, handed out the information and we had the employees sign onto the attendance records for this meeting and also their receipt of the documents. After the rollout we continued with consultation with the whole group of employees, so I personally attended PSI meetings in the morning and some in the afternoons with our employees. I attended the individual crib PSI meetings as well to go through any further questions and anything that the employees had. I was involved in the distribution and going through of the FAQ questions when they came, so we went through and explained with the whole group each and every question in the FAQs. We took questions about the issues that the employees had and what they wanted clarity on. After the FAQs, again I also facilitated the smaller group meetings also so that we could through the detail in question with the employees. I was involved in the consultative committee meetings which we had with the employees by getting representatives, and the union representatives in our Whyalla town office. I also facilitated meetings between the EA reps at Iron Knob with SMR so that was our combined group meeting, and we did have some teleconferences, some which were done by my colleague Russell Pyman at the time and some which I facilitated. I was also involved in the issuing of the final packs, going through any questions or queries that the employees had. Some came directly through to me, some came through my superintendents and our leadership team.
PN2044
Thank you. Mr Ruwiza, how many people roughly were involved in enterprise bargaining that you - the group that you were responsible for in the enterprise bargaining?‑‑‑We had about 325 wages employees, that's for both maintenance and mining, for the two sites.
PN2045
Mr Ruwiza, you've got a copy of a bundle of documents there which is titled "Chronological bundle of documents"?‑‑‑Yes.
PN2046
Can you take - and can you just describe that's - is that a folder with pages that have got red numbers at the top?‑‑‑Yes.
PN2047
Can you take me to a page which is - which shows an example of employees in the enterprise bargaining that you were responsible for, raising questions about the specific terms of the agreement that were proposed?‑‑‑Right, so we go to 0517.
PN2048
Yes?‑‑‑So there are a lot of documents that show this anyway. In 0517, I won't read every question but I will read the questions that led to the actual enterprise agreement that was proposed or the draft that was sitting with the employees. Question number 8 said:
PN2049
Can we have it clarified if we are shift worker or continuous shift worker; what is the definition?
PN2050
So this is in the actual enterprise agreement.
PN2051
Yes?‑‑‑
PN2052
Can we get an example of what a payslip template would look like under the new pay structure?
PN2053
So the new pay structure that was sitting in the agreement, that was talking about 38 hours in ordinary work and overtime.
PN2054
Can we get some clarification about specific conditions under the new agreement, like travel, pay, meal allowances etc.
*** TARIRO RUWIZA XN MR FLETCHER
PN2055
So again that was referring specifically to the proposed enterprise agreement.
PN2056
How would the superannuation payment be covered for an employee under the new enterprise agreement?
PN2057
So this was a meeting that we did in the workshop on 6 April. This came from Wade Wogan who was one of the employee representatives, so he attended meetings and this was a meeting that we did as follow up to the FAQs.
PN2058
Thank you. Mr Ruwiza, can you describe the process that you went through or the steps that you took to give access to persons who were involved in the enterprise bargaining process, to a copy of the Mining Industry Award 2010?‑‑‑So with the mining award, initially we spoke about it in the actual rollout. So what we did, they were was no link or anything provide in the actual rollout, it was spoken, it was referenced. That's in - 340's the pack.
PN2059
Sorry, what did you say then? Can you just repeat that?‑‑‑I said we did mention the mining award during the actual rollout.
PN2060
Yes, rollout, thank you?‑‑‑Yes, so there was the rollout. We then had it included in the actual FAQs. So if you go to FAQ number 2, question 30, which is 0324.
PN2061
So this is page 0324?‑‑‑0324 in the - - -
PN2062
In the book?‑‑‑In the book. So in 0324 the employees had requested that where can I get a copy of the Mining Industry Award and information about the national employment standards. So this was coming from the meetings that we're having with the employees and they're in their smaller groups, but they're smaller groups and the big groups. In there we said you can find a copy of the Mining Industry Award on the Fair Work Commission website, and there was a link provided there. At this time though whilst other employees were asking, some employees had already had access to the actual mining award. If you go to 0323, question number 28,
PN2063
Was (indistinct) specific about comparing the rates that are in the mining award, comparing with the rates that were in the enterprise agreement.
*** TARIRO RUWIZA XN MR FLETCHER
PN2064
After that we then had a formal request which came through one of the crew meetings, so it came through Paul Haynes. Paul was a mining superintendent at the time. So if you go to TRR3, sorry R171 on the blue one, which is on my - - -
PN2065
The blue page of court book 1 - what was it 1?‑‑‑171.
PN2066
Thank you?‑‑‑So in 171, Paul Haynes sent me an email which had come from A and B crews, which he was looking after at the time. "T" - that's what they call me anyway, some say Mr T:
PN2067
The crews have requested a copy of the current mining award to be provided for them to review. Are we able to assist with this?
PN2068
So I followed up with Sandra Thorpe, so that's - if you go to 173.
PN2069
Yes?‑‑‑So Sandra responded back and said:
PN2070
The FAQ3s are linked to the mining award on the Fair Work Commission -
PN2071
Which is one that I've just spoken about -
PN2072
so the guys can access it themselves. However I've attached a downloaded copy if that is easier.
PN2073
So I had a downloaded copy, which is 174, and it's also in the big pack here. With that I did send through an email to my leadership team which is set out there and the SMR administration team and I said:
PN2074
Please find attached copies of the mining award. Can you please liaise with admin and have two copies printed for each work group. The copies must be kept in the crib so all employees can have access.
PN2075
So we went ahead and printed copies for all the crib facilities. We have five crib facilities on-site, two copies were put in the maintenance crib hut. We had two copies that we put in the fixed plant crib hut. Two copies were put in the War Zone, the Iron Duke crib hut but (indistinct) the War Zone. Two copies in the (indistinct) crib facility and two copies in the Chieftain crib facility. After that was all done I also had follow up emails where some of the supervisors were actually confirming that the copies were provided - - -
*** TARIRO RUWIZA XN MR FLETCHER
PN2076
MR BONCARDO: I object to this evidence. I object to him giving evidence about what supervisors told him. That is hearsay. Those supervisors have not been called to give evidence. I cannot test what those supervisors are saying. I have no issue with him giving evidence about what he told people to do because he can give that evidence, but he cannot give evidence that my friend's going to attempt to lead for a hearsay purpose, to attempt to prove that supervisors did certain things in terms of distributing the Mining Industry Award.
PN2077
THE DEPUTY PRESIDENT: He can give evidence of what people said to him in the same way as a number of witnesses gave evidence yesterday on what the WA bargaining rep said and if I were to exclude that evidence, that would be fundamental.
PN2078
MR BONCARDO: Yes.
PN2079
THE DEPUTY PRESIDENT: Fundamental to the case, that was established yesterday.
PN2080
MR BONCARDO: Not to my case. Not to my case but I heard what your Honour has said. Your Honour will note my objection.
PN2081
THE DEPUTY PRESIDENT: Yes.
PN2082
MR FLETCHER: I might add, your Honour - sorry, Deputy President, it goes to a submission that I'll be making later and I wasn't keen to have that submission drawn out in the middle of my cross-examination about who bears the onus of calling evidence and something that Mr Boncardo's just said relates very, very closely to what I'll be saying later in submissions. But anyway, I digress. You were - - -?‑‑‑Yes, so I'll continue.
PN2083
- - - providing an answer?‑‑‑Yes. So on 3 May, so the initial request came on the 29th, we had copies printed out and actually bound by the administration team. Vincent Ryan wrote back to the superintendent and said:
PN2084
Mining Industry Award 2010, taken to fixed plant in north crib hut rooms today.
PN2085
I also have one here from the workshop, which is Wednesday, 12 - this one here was - so that was Friday, 29 April, so that was Chelsea who is the administrator for the maintenance group, so 179.
PN2086
Sorry, I think Mr Boncardo's asking for a page reference?‑‑‑So if you go to 179.
*** TARIRO RUWIZA XN MR FLETCHER
PN2087
179.
PN2088
MR BONCARDO: Thank you.
PN2089
THE WITNESS: So 179 is an email between Chelsea and Scott McFarlane. Scott McFarlane is my maintenance superintendent. So it said:
PN2090
Hey Mackie, I can do if Tony doesn't beat me to it.
PN2091
So this is where Tony and Chelsea are administrators. There was an email on the 29th which was:
PN2092
I'll not be here on the weekend but feel free to ring if you need. Can you please print out and bind in books so that we can put in the crib hut rooms as below.
PN2093
And below was - all my emails are talking about the mining award being in the crib huts. When I did the group meetings after all this was done because we were now going through the details that were in the agreement, referring to some of the grandfather conditions in the contract and what the mining award actually stated about some clauses, we actually went through and discussed the actual pay rates with the crews in the crib hut where these mining awards had been (indistinct).
PN2094
Thank you?‑‑‑After that I never heard any employees request for this one came through the mining superintendent. We provided copies and access to the mining award.
PN2095
Thank you. Can you tell me of any instances where you or other members of BGC management threatened or induced employees to vote yes for the agreement between the time that the process started and when it was voted on?
PN2096
MR BONCARDO: I'm not sure he can give evidence about inducement. He can certainly give evidence about threats -- -
PN2097
MR FLETCHER: I'll re-ask - I'll ask the question - - -
PN2098
MR BONCARDO: Inducement's a very different concept.
*** TARIRO RUWIZA XN MR FLETCHER
PN2099
MR FLETCHER: Yes, right. I might - - -
PN2100
THE DEPUTY PRESIDENT: I don't want any of my witnesses locked up as a result of evidence.
PN2101
MR FLETCHER: No, that's a fair point. I might ask three questions.
PN2102
THE DEPUTY PRESIDENT: You generally do.
PN2103
MR FLETCHER: Just all glued together.
PN2104
THE DEPUTY PRESIDENT: Yes.
PN2105
MR FLETCHER: I think I've been relatively circumspect this morning.
PN2106
THE DEPUTY PRESIDENT: He's just warming up.
PN2107
MR FLETCHER: Mr Ruwiza, can you tell me if there are any instances where you or the other managers at - sorry, you as the person with overall responsibility for enterprise bargaining in South Australia, or any of the managers, threatened an employee that - sorry, made a threat to an employee in relation to voting no to the agreement?‑‑‑There was no time where employees were threatened about voting. Throughout the whole process we said we were going to be open and transparent and we were going to consult with the whole group. We provided information to the employees and explained it, so that they had the choice to vote either yes or no, given the information that we had provided to them. At no point did I threaten anyone or was I made aware of any threat to any employees to vote yes.
PN2108
Mr Ruwiza, can you tell me if you as the person with overall responsibility for enterprise bargaining in South Australia or any of the management of BGC lied or made an untrue statement in order to convince an employee to vote yes for the agreement?
PN2109
MR BONCARDO: I object to the question. I am not sure how this witness can speak on behalf of every single one - BGC manager in Western Australia and South Australia. He can give evidence about what he did - - -
PN2110
MR FLETCHER: I didn't ask - - -
*** TARIRO RUWIZA XN MR FLETCHER
PN2111
THE DEPUTY PRESIDENT: I don't think he put in WA which is unfortunate because that was actually what I'm interested in but - - -
PN2112
MR BONCARDO: The question related not just to him. He can't give evidence about what other people may or may not have done.
PN2113
MR FLETCHER: Once again, Deputy President, it's the same problem we've got. I mean the unions - I appreciate we've got three different unions and I am finding it difficult combating a final - conducting a fight on three fronts. But I can't have someone who's strictly bound by the rules of evidence and forces me to be strictly bound by the rules of evidence, and someone who rambles on and gives us all manner of evidence that's completely concocted on hearsay. As long as - - -
PN2114
THE DEPUTY PRESIDENT: To be fair I think I kept Mr Hardie within a parameter of rules of evidence.
PN2115
MR HARDIE: Just talking about me.
PN2116
THE DEPUTY PRESIDENT: I think Mr Hardie felt he had a tough day in the office.
PN2117
MR FLETCHER: That's fine. I think - - -
PN2118
THE DEPUTY PRESIDENT: I don't think the witness - he can't be aware of what every manager did in every circumstance. What he can be aware of is whether he knowingly led or misled anyone and whether he instructed any of his team to lead or mislead anyone, or he witnessed anyone of his team lead or mislead anyone. I think the generic statement that nobody in the team misled would be a big call for the witness to make and that would then go to damage the witness' credibility because it would be difficult to be certain that the witness was aware of everything everyone in his team said at all times.
PN2119
MR FLETCHER: Well, I can ask it in that manner. Mr Ruwiza, were you aware of any threats that were made to employees to vote yes to the agreement?‑‑‑No, I wasn't aware.
*** TARIRO RUWIZA XN MR FLETCHER
PN2120
Mr Ruwiza, were you aware of any untruths or inaccurate information, incorrect information that was given to employees in order to make them vote yes?‑‑‑No. So I didn't supply any untrue or misleading information and I'm not aware of any untrue or misleading information that was supplied to the employees to vote yes.
PN2121
Are you aware of any individual employees being offered some form of benefit, personal benefit, in exchange for voting yes for the agreement?‑‑‑No. I'm not aware of any of that.
PN2122
Thank you. That ends Mr Ruwiza's examination-in-chief and I would seek to tender the statement.
PN2123
MR BONCARDO: Just in terms of the statement, your Honour, and I know what the answer will be to these objections, but I'll make them anyway.
PN2124
THE DEPUTY PRESIDENT: Don't be so negative, Mr Boncardo.
PN2125
MR BONCARDO: Well, perhaps I'm being realistic.
PN2126
THE DEPUTY PRESIDENT: I have every faith in your ability as an advocate.
PN2127
MR BONCARDO: Realistic, your Honour, but perhaps if your Honour would indulge me somewhat, I do need to make these objections. The first objection pertains to paragraph 35, the objection is that that is hearsay. Secondly, it is unfairly prejudicial in the sense that none of the superintendents are even named. None of them have been called to give evidence and is, if you like, a conjectural musing by the witness about what may or may not have happened at the crib facilities.
PN2128
The second objection is in respect to - - -
PN2129
THE DEPUTY PRESIDENT: Shall we do it one by one? Do you want a ruling one by one?
PN2130
MR BONCARDO: I'm in your Honour's hands.
PN2131
THE DEPUTY PRESIDENT: Let's go one by one.
PN2132
MR BONCARDO: Certainly.
PN2133
THE DEPUTY PRESIDENT: In paragraph 35, I think he's merely giving evidence that he was told something - - -
*** TARIRO RUWIZA XN MR FLETCHER
PN2134
MR BONCARDO: If it's - - -
PN2135
THE DEPUTY PRESIDENT: - - - so the only weight that can be attached to that is his evidence that he was told something.
PN2136
MR BONCARDO: If it's accepted only as evidence of what he was told as opposed to evidence to prove the truth of the intended assertion, which is that the mining award was distributed to crib huts, I'm happy with that. It's evidence solely of what he was told and not used for a hearsay purpose - - -
PN2137
MR FLETCHER: Deputy President, if I may. I deliberately yesterday and you'll recall that the CFMEU witness statements were extremely short and the evidence that was given was extremely short, and the cross-examination was relatively quick. But later in the day I was absolutely ambushed by the witness who'd given the longest statement in the proceedings - - -
PN2138
THE DEPUTY PRESIDENT: The longest examination.
PN2139
MR FLETCHER: - - - then being re-examined on - sorry, being examined in-chief on every detail. Now I think that probably did some disservice to the AMWU's case because there were already contradictions between what was being said. So I'm not sure if it was tactically the right manoeuvre but I do not want to be at a disadvantage because I did not take you to each individual paragraph that we object to at the beginning of - at some point in the evidence, because if I had done that we would still be going with Mr Wake at 5 pm yesterday. So I'm happy for Mr Boncardo to take this approach, I am conscious of how it might affect the timing of the hearing today. Maybe the better approach is if we agree that we can make submissions about the weight of evidence at the end. I don't necessarily see that this approach is going to ensure that we get finished today.
PN2140
MR BONCARDO: I appreciate Mr Fletcher's in a difficult position. What he says about me being somewhat more attached to the rules of evidence is probably right, but I still need to make the objections.
PN2141
THE DEPUTY PRESIDENT: You said that in the kindest possible way.
PN2142
MR BONCARDO: Well, yes, I still need to make the objection. Whether your Honour is content to deal with them now or perhaps at the end of the day or perhaps in written submissions, I'm in your Honour's hands. I don't want - I don't want this to be done inefficiently but I do need to make the objections.
*** TARIRO RUWIZA XN MR FLETCHER
PN2143
THE DEPUTY PRESIDENT: I think the difficult is, is that I have to apply the same judgment to all the evidence.
PN2144
MR BONCARDO: Yes.
PN2145
THE DEPUTY PRESIDENT: I do have some experience in applying weight to witness evidence.
PN2146
MR BONCARDO: I have no doubt, your Honour.
PN2147
THE DEPUTY PRESIDENT: I am fairly confident I can make that assessment.
PN2148
MR BONCARDO: Yes.
PN2149
THE DEPUTY PRESIDENT: I'm quite happy, if you feel the need to draw my attention clause by clause to the witness statement for you to do that.
PN2150
MR BONCARDO: Yes.
PN2151
THE DEPUTY PRESIDENT: Otherwise I'm more than happy to hear some general submissions at the end of the day. Because if we are going to go into a very detailed analysis, strict evidentiary analysis of what goes in and what goes out, there is going to be a whole lot of evidence that is not before me that I feel the need to be informed about.
PN2152
MR BONCARDO: Your Honour is able to do that and I have every confidence your Honour will attach to the evidence the weight it deserves, but I don't want it to be said that I didn't object to some of the hearsay statements in here and some of the speculative musings of Mr Ruwiza. I can do that now or I can do it later on in the day. I just need it to be noted and I think your Honour appreciates this - - -
PN2153
THE DEPUTY PRESIDENT: I'd be interested at the end of the day for you to give me some submissions about what weight I should attach because I will attach that same guidance to the all material before me.
PN2154
MR BONCARDO: Certainly, your Honour.
*** TARIRO RUWIZA XN MR FLETCHER
PN2155
THE DEPUTY PRESIDENT: So that gives you the opportunity to consider how far you want to press this.
PN2156
MR BONCARDO: Yes, your Honour.
PN2157
THE DEPUTY PRESIDENT: Because I will apply equally to everything that's before me.
PN2158
MR BONCARDO: I understand what your Honour's saying. Thank you, your Honour.
PN2159
THE DEPUTY PRESIDENT: Thank you.
PN2160
MR FLETCHER: Live by the sword, die by the sword.
PN2161
MR BONCARDO: It's not my case.
PN2162
THE DEPUTY PRESIDENT: We're into cross, aren't we?
MR FLETCHER: We are. Sorry, we are.
CROSS-EXAMINATION BY MR BONCARDO [9.39 AM]
PN2164
MR BONCARDO: I apologise, Mr Ruwiza, just bear with me?‑‑‑No, that's all right, it's okay mate.
PN2165
THE DEPUTY PRESIDENT: Mr Ruwiza - - -
PN2166
MR BONCARDO: Well, I'm not your mate.
PN2167
THE DEPUTY PRESIDENT: Mr Ruwiza, just let me give you - - -
PN2168
MR BONCARDO: You can call me Mr Boncardo.
PN2169
THE DEPUTY PRESIDENT: - - - do you mind slowing down a little because I'm sometimes having difficulty keeping up with where you're going?‑‑‑Yes.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2170
Thank you.
PN2171
MR BONCARDO: Mr Ruwiza, you're based at the Arrium operations, are you not?‑‑‑Yes, I am.
PN2172
You certainly weren't present at the West Australian operations at BGC during the negotiations phases were you?‑‑‑Yes, I wasn't there.
PN2173
You have no direct knowledge at all, do you, about what happened at Koolyanobbing and Mt Webber?‑‑‑I don't have direct knowledge.
PN2174
Now sir, a copy of the enterprise agreement was originally made available to the employees in I think what you called at paragraph 17 of your statement the initial rollout phase, sometime in late March. Is that correct?‑‑‑Yes, 30 March and 31 March.
PN2175
Thank you, sir. Now the version that was originally rolled out is almost exactly the same as the version that was put to a vote in June, isn't it?‑‑‑Yes.
PN2176
Exactly the same, isn't it?‑‑‑I wouldn't say exactly but it's almost the same, yes.
PN2177
It's the case, isn't it sir, that when the employees were issued a copy of the draft agreement and they were also issued individual commonwealth contracts?‑‑‑There was a draft or an example of the commonwealth contract in the pack.
PN2178
Those contracts, I think it's uncontroversial, purported to preserve their rates of pay whilst they were on the current projects didn't they?‑‑‑Yes, initially, yes.
PN2179
Without getting too hyperbolic, when you rolled out the new enterprise agreement, that agreement contained pay rates that were drastically less than what was provided under the current enterprise agreement, correct?‑‑‑Correct.
PN2180
Now naturally I think you and I'm sure you're able to tell the Commission about what other employees of BGC were thinking. You and other managerial personnel at BGC were concerned about that, weren't you?
PN2181
THE DEPUTY PRESIDENT: You're not asking him to give evidence on the views of other - surely not.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2182
MR BONCARDO: I'll - no. Well, I don't want to act inconsistently. I'll rephrase the question.
PN2183
THE DEPUTY PRESIDENT: Wise.
PN2184
MR BONCARDO: You recognised didn't you, sir, that it was a big thing for employees to agree to a new enterprise agreement that drastically reduced their rates of pay, correct?
PN2185
MR FLETCHER: I'm not sure that's helping.
PN2186
MR BONCARDO: Well, he can answer the question.
PN2187
THE DEPUTY PRESIDENT: You want him to give evidence about the views of employees - - -
PN2188
MR BONCARDO: No, no, I'm asking about issue, whether he was aware or he thought that it was a big call for employees to vote up an agreement that drastically reduced their rates of pay.
PN2189
MR FLETCHER: So it's opinion evidence, is it?
PN2190
MR BONCARDO: It's cross-examination. Do you want the question again? Do you - - -?‑‑‑No, can you please rephrase that question.
PN2191
THE DEPUTY PRESIDENT: One more chance, let's get it right.
PN2192
MR BONCARDO: When you rolled out the enterprise agreement with drastically reduced rates of pay, you had some concerns didn't you, that it would be a bargaining called for employees to vote you that agreement, because it slashed their rate of pay?‑‑‑Me as an individual?
PN2193
Yes?‑‑‑Due to the grandfathering that we had and the whole package that we had, which is the agreement and the actual grandfather conditions, I didn't see any big issue in terms of the employee putting up the agreement.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2194
I'm talking about the agreement in and of itself, by itself. Let's leave the preserved conditions and the grandfathering to one side. It would have been a big call for employees to vote up an agreement that slashed their conditions, wouldn't it?‑‑‑It was a package. It was a package so it's too hard to put one aside , I know that. From my end it was a package. A package was offered in that we are grandfathering your conditions and here's the new enterprise agreement.
PN2195
You've given some evidence this morning, sir, about bargaining that occurred between March and 12. Now you told her Honour that between March and June there were little, if any, changes to the enterprise agreement. To the extent that there was bargaining, that bargaining related to the common law contracts didn't they?‑‑‑There was the enterprise agreement and the common law contracts. So there was - both we discussed in all the discussions and the evidence that I've given about where we actually referred to clauses in the contracts with the employees, we are referring to clauses that were in the contract, which affected then their employment. So to say that we only spoke about the grandfathering, that's not what (indistinct). I've got evidence here that in our discussions, employees were referring to clause that were in the - to information that was in the actual enterprise agreement.
PN2196
It's the case isn't it that the only changes of any substance that were made by BGC in the course of bargaining were changes made to the contracts. That's right, isn't it?‑‑‑Rephrase the question for me, please.
PN2197
You gave employees a draft enterprise agreement and a draft contract sometime in March?‑‑‑Yes.
PN2198
You then gave them a final enterprise agreement and a final contract sometime towards the end of May?‑‑‑Yes.
PN2199
The enterprise agreement was almost the same if not exactly the same and the contracts were different weren't they? You'd made concessions in respect to the contract?‑‑‑Yes.
PN2200
You'd agree with the proposition wouldn't you that to the extent bargaining occurred it was bargaining in respect to the terms and conditions of the contracts?
PN2201
MR FLETCHER: Well, that's founded on a premise that bargaining means conceding. I think that's based on a premise that - - -
PN2202
MR BONCARDO: Maybe I'll rephrase it.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2203
THE DEPUTY PRESIDENT: I don't think that's preventing the witness answering the question. I think the witness is being consistent with what his evidence is. I think he understands the question.
PN2204
MR BONCARDO: I think he does.
PN2205
THE DEPUTY PRESIDENT: I think we all understand what the question is. Whether it's relevant is another question because whether there's an obligation for an employer to concede points to prove that - - -
PN2206
MR BONCARDO: That they've actually bargained.
PN2207
THE DEPUTY PRESIDENT: Yes, is another question, given that the majority of employees approved the agreement.
PN2208
MR FLETCHER: I'm just conscious, Deputy President, that yesterday Mr Boncardo picked me up about starting a question with a proper - you know, an accepted understanding and I think that's what he's doing here. He's saying - he's starting with the premise that to bargain you have to concede and that's what the question is asking.
PN2209
THE DEPUTY PRESIDENT: Well, he can ask that question. It's whether he can make any submissions which have compelling weight at the end.
PN2210
MR BONCARDO: I'm trying not to embrace my friend's cross-examination styles so maybe I'll rephrase the question. To the extent BGC made any concessions favourable to employees between March and the end of May, those concessions were made in respect to terms and conditions of the contract weren't they?‑‑‑There were changes that were made to the terms and conditions of the contract but a lot of the questions that came around the actual agreement - - -
PN2211
I'm not asking you about questions. Thank you, sir, you've answered my question.
PN2212
THE DEPUTY PRESIDENT: I think the evidence of the witnesses yesterday established this, so I don't think it's not established. I don't have an issue with you asking it because I think we've already established it. I'm more concerned about how that's going to help at a later point.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2213
MR BONCARDO: I'll take your Honour to a case at the end of the day where that will be made clear.
PN2214
THE DEPUTY PRESIDENT: All going to be - all going to come together at the end.
PN2215
MR BONCARDO: Yes. Now sir, on the assumption that all of your - all of BGC's employees who voted for the agreement sign and return their common law contracts and the agreement is approved. It will be the case, will it not, that not one of those employees will be paid the rates under this agreement if it's approved?‑‑‑Can you please rephrase the question?
PN2216
If all of your employees sign and return common law contracts that you have provided to them, to provide for their so-called preserved terms and conditions and this agreement is approved by the Commission. On the first day it comes into operation no employees will be paid the rates provided by the agreement will they?‑‑‑Yes, so they're all specified in the bargaining process, that they will grandfathered and the contracts were conditional upon a yes vote and the agreement going through the Fair Work Commission.
PN2217
Sir, I want to ask you some questions now about - - -
PN2218
THE DEPUTY PRESIDENT: Can I ask a question? What happens to a new employee?‑‑‑To the new employees? So with a new employee we had the grandfathered rates and the rates that were minimum in the award and we are going to be paying the market rates, depending on the project, the location and the industry.
PN2219
So arguably if the market's depressed, a new employee after the - if the agreement were to be registered, and a new employee hired the following day in a depressed market could potentially get just the agreement rate?‑‑‑Potentially, yes.
PN2220
Thank you.
PN2221
MR BONCARDO: Mr Ruwiza, I want to ask you about Attachment TR1 to your statement which are the - if you go to the attendance sheets?‑‑‑TR1.
PN2222
TR1, yes?‑‑‑Yes.
PN2223
Those attendance sheets are documents produced by BGC aren't they?‑‑‑Yes.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2224
So you've included in here what you say are attendance records for the negotiations that occurred between March and June this year?‑‑‑Yes.
PN2225
Why are the first three documents dated 25 November 2012?‑‑‑Can you please read what's written before that?
PN2226
"Revised 25 November 2012"?‑‑‑Can you read the documents down the bottom right-hand.
PN2227
Just answer my question. Don't ask me to read things - - -?‑‑‑This document was printed on the 14th of the 4th 2016. Printed.
PN2228
It was printed?‑‑‑Yes, so - - -
PN2229
THE DEPUTY PRESIDENT: So Mr Boncardo, sorry one moment. What page are we looking at?
PN2230
MR BONCARDO: We're on page 127.
PN2231
THE DEPUTY PRESIDENT: There's no chocolate here today, I'm struggling. Thank you.
PN2232
MR BONCARDO: So they weren't printed on 25 November 2012?‑‑‑I've answered you on that one.
PN2233
And the answer is no?‑‑‑Yes. They were not printed on that date.
PN2234
Thank you, sir. Now sir, you as I think it was senior project manager for BGC at the Arrium operation, have responsibility don't you for amongst other things managing BGC's relations with its employees?‑‑‑Yes.
PN2235
You have done your best haven't you sir, to familiarise yourself with the provisions of the Fair Work Act, so far as they concern bargaining for an agreement?‑‑‑Yes.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2236
You're aware aren't you, sir, that if an employee's a union member, they don't have to appoint the union to be their bargaining representative. The union is their default bargaining representative?‑‑‑Yes.
PN2237
You understand that?‑‑‑Yes.
PN2238
You also understand that there's no obligation on any employee at all to appoint themselves or anyone else as a bargaining representative?‑‑‑Yes.
PN2239
An employee can simply sit on the sidelines and not participate in bargaining at all can't they?‑‑‑Yes.
PN2240
Now the documents that are contained in TR8, your evidence so far - - -?‑‑‑Sorry, that's page what?
PN2241
Page 181 to 189. Your evidence I think, sir, is that all of these documents were provided to you by your superintendents?‑‑‑Yes.
PN2242
That's correct, isn't it?‑‑‑Yes.
PN2243
Your evidence I think is that so far as you are aware, BGC had nothing to do with these documents?‑‑‑Yes, we didn't have anything to do with them.
PN2244
Can I get you to look at page 186 for me, sir. See in the top corner there, sir, it's got "Revised, 25 November 2012", and in the footer you've got "BGC Contracting, page 1 of 1, printed 21 April 2016"?‑‑‑Yes.
PN2245
Curiously similar to the attendance sheet I was just asking you about, isn't it?‑‑‑Yes.
PN2246
It's exactly the same, in terms of the header and the footer isn't it, except the date?‑‑‑Yes.
PN2247
Are you seriously suggesting that BGC had nothing to do with this document?‑‑‑So I explained earlier on that the employees that were part of the bargaining process, some of them do have access to our BMS documents. They also have access to computers, all our employees have got access to computers. We did not prepare this document and say go and use this to appoint your representative. We did not do that.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2248
You agree with me, sir, though wouldn't you that it's very unusual, very curious that the same date with the word "revised" before it appears in the header to page 186, the document on page 186, which is exactly the same as the attendance sheet. You'd agree that's unusual wouldn't you?‑‑‑No, this is a BMS document.
PN2249
THE DEPUTY PRESIDENT: The template document you're saying?‑‑‑It's a template document that sits in our system that employees have got access to.
PN2250
MR BONCARDO: So BGC has a template bargaining appointment form?‑‑‑It's not bargaining. It's not for bargaining. That's why if you check at the top they have written "Maintenance A crew nominees", it's not bargaining. It's not for bargaining to say this is what we use for bargaining. We don't have anything that we gave to employees for nominating bargaining representatives.
PN2251
I'll ask you about - - -?‑‑‑They have put in their own wording at the top. They create the document and edit the document.
PN2252
I want to ask you about the document on page 185?‑‑‑Yes.
PN2253
Are you seriously suggesting to this Commission that employees of BGC Contracting wrote in:
PN2254
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 in a timely manner.
PN2255
?‑‑‑BGC had nothing to do with this.
PN2256
Sir, if I can take you to page 182, you'll see there the exact same thing written in the paragraph before the redacted sign in sheet with the comma and the semi colon in the exact same spot?‑‑‑Yes.
PN2257
You're suggesting, are you sir, that Mr Bolitho, Mr Spencer, Mr Oates and someone who was going to be announced, Mr TBA, all got together and wrote exactly the same thing with the exact same punctuation in exactly the same places?‑‑‑I'm not suggesting I was there when they did these documents.
PN2258
You were there when they did the documents?‑‑‑No, I said I'm not suggesting because I wasn't there when they did these documents.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2259
That's right, isn't it sir. You weren't there when they did the documents?‑‑‑Yes, the employees did their own documents to nominate their bargaining representatives in writing.
PN2260
Your superintendents gave you these documents didn't they?‑‑‑Yes, they did.
PN2261
You didn't see where the documents were produced from did you?‑‑‑I didn't see that.
PN2262
You have no knowledge at all about where these documents came from do you.
PN2263
MR FLETCHER: Deputy President, I think I got in trouble yesterday for badgering and I'm detecting black and white mammal like qualities here. I think Mr Ruwiza has given very clear answers and I'm not sure - I don't think Mr Boncardo's getting what he wants but - - -
PN2264
MR BONCARDO: I am getting what I want.
PN2265
MR FLETCHER: - - - taking this approach isn't going to get him - - -
PN2266
MR BONCARDO: I'll ask him one other question.
PN2267
THE DEPUTY PRESIDENT: Personally, I think the witness is ahead so far but we'll keep going.
PN2268
THE WITNESS: Before you go onto your next question - - -
PN2269
MR BONCARDO: No, no, no, I'll ask you questions, sir. This is not an occasion for you to wax lyrical.
PN2270
THE DEPUTY PRESIDENT: I think it's interesting though, 185 has got a logo on it, it's got a different font than 182 and 181's got a different size and underlining in the heading. The documents aren't in any way - they're all different.
PN2271
MR BONCARDO: But 182 and 185 are exactly the same, your Honour, in terms of the text - - -
*** TARIRO RUWIZA XXN MR BONCARDO
PN2272
THE DEPUTY PRESIDENT: No, no, but you know they've got logos, they've got different - 185's got a logo, 182 doesn't. 181's got a different style of heading.
PN2273
MR BONCARDO: I'll ask my next question. Sir, you don't know the provenance of these documents do you?
PN2274
THE DEPUTY PRESIDENT: I think he's told us that several times.
PN2275
MR BONCARDO: You don't know?‑‑‑I don't know.
PN2276
Thank you, sir. You received these documents during the course of bargaining did you?‑‑‑Yes.
PN2277
That's your evidence. You read that last paragraph that I've read to you at pages 182 and 185, when you received the documents?‑‑‑Yes.
PN2278
Did you recognise when you read that paragraph, sir, that that paragraph contained incorrect information, did you?‑‑‑In terms of incorrect - it was employees nominating, they had their own way of nominating their own reps.
PN2279
I'll be more specific in my question. You recognised when you read that last paragraph that the assertion that an employee will be required to nominate themselves or another party in writing to their employer in a timely fashion, if they didn't authorise Mr Bolitho or Mr Spencer to be their bargaining representative, was just wrong?
PN2280
MR FLETCHER: Well, wrong in what sense? I mean once again there was an exchange yesterday with Mr Wake where I was trying to establish that Mr Wake's understanding of the peculiarities of disputation versus wages claims wasn't understood, and I was criticised for asking my witness questions about legal interpretation. I think that's basically where Mr Boncardo's going here with Mr Ruwiza. Mr Ruwiza, I'm sure is not an expert in the finer points of notice of representational rights and would have taken appropriate advice. I don't think this question's going to get - - -
PN2281
THE DEPUTY PRESIDENT: I think with respect, the difficulty is Mr Boncardo set up the question first by getting the witness to establish he was aware that the union's a default. So the witness - - -
*** TARIRO RUWIZA XXN MR BONCARDO
PN2282
MR BONCARDO: And that he has knowledge of the bargaining provisions of the Fair Work Act.
PN2283
THE DEPUTY PRESIDENT: Well, I wouldn't go to the second part but you had established, the witness gave evidence that he was aware that the union's a default.
PN2284
MR FLETCHER: But that's all he's established.
PN2285
THE DEPUTY PRESIDENT: Yes, and now he's putting another question to say - I presume he's going to put the two dots together now.
PN2286
MR BONCARDO: Yes. Sir, you have familiarised yourself with the requirements under the Fair Work Act for the appointment or non-appointment of bargaining representatives, haven't you?‑‑‑Yes, for what's required for my role, yes.
PN2287
You recognise don't you that the passage I have read out to you on pages 182 and 185 about some sort of obligation on the part of an employee to nominate themselves or another person in writing of the bargaining representative, does not reflect the position under the Fair Work Act does it?‑‑‑I said at the time I didn't go into the actual legal requirements in the documentation because I'm not an expert in the industrial side of things. This stuff that I know for my role and I said we did give a notice of representational rights. The employees came and said this is who we want to have to represent us.
PN2288
Sir, you're aware of the better off overall test under the Fair Work Act are you?‑‑‑No, I wouldn't say to great detail but I know that the award that is issued needs to be you know better off the actual mining award, or meet or be better off the award.
PN2289
You understand obviously that the Mining Industry Award applied to BGC's current employees when they voted on this agreement didn't you?‑‑‑The mining award?
PN2290
Yes?‑‑‑Yes, I do.
PN2291
So far as you are aware, no terms - actually let me ask this question first. You familiarised yourself with the Mining Industry Award?‑‑‑For the portions that are referenced when we went to the negotiations, not the whole award but some portions that I referenced during the process.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2292
So far as you are aware and you're concerned, there are no terms and conditions in the enterprise agreement that are less beneficial to the employees than those under the Mining Industry Award are there?‑‑‑No, I wouldn't say that because we do have a whole corporate team that looks at all the EA side of things, and I take advice from them. So I wouldn't say every clause that is sitting in there I have checked personally to make sure that it meets the award.
PN2293
So there was never any explanation given to employees was there, that any term of the proposed enterprise agreement was less beneficial in the Mining Industry Award was there?‑‑‑Not for the sessions that I ran. We didn't go into the detail. We provided the information, we went through areas where the employees had concerns and discussed them.
PN2294
Thank you, sir, you've answered my question. It's the same in respect to the Black Coal Mining Award isn't it? You didn't tell the employees that certain provisions of the enterprise agreement were less beneficial in the Black Coal Mining Award at any point?
PN2295
MR FLETCHER: No, we haven't conceded that that is the case.
PN2296
MR BONCARDO: Well, that might be my friend's case but I don't think he's - - -
PN2297
MR FLETCHER: Well, once again it's a question of legal interpretation. I don't want a premise put to my witness that he is sort of taken to accept by answering the second part of the question.
PN2298
MR BONCARDO: I'll rephrase it. Did you in the consultations you were a part of say anything at all to employees about any terms of the enterprise agreement being less beneficial than the Black Coal Mining Industry?‑‑‑No, I didn't go into any of those discussions.
PN2299
Thank you. Now sir, you gave assurances to employees throughout the course of negotiations that they didn't need to worry about rates under the agreement because their rates will be preserved in the common law contract didn't you?‑‑‑So for the grandfathered rates?
PN2300
Yes?‑‑‑Yes, I did.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2301
Those grandfathered rates were unchangeable were they?‑‑‑No, the grandfathered rate - unchangeable as in - - -
PN2302
It was unchangeable. So if an employee signed a common law contract their grandfathered rate would be preserved for time immemorial. That's putting it a bit too highly but that's - you accept that that's how you represented the contracts of employees?‑‑‑If we say time immemorial we did go through the discussions that should there be a requirement to actually change that rate, consultation will be done with the employees and that was included in their contracts of employment. Or the final copy of the contract of employment.
PN2303
So it's the case isn't it that the rates in the common law contracts aren't grandfathered for ever, they can be changed by BGC can't they?‑‑‑Through consultation with the employees.
PN2304
Have you read the provision of the contract that deals with the changeability of the rates via consultation?‑‑‑Yes, I have. I can refer to a copy that I have here.
PN2305
THE DEPUTY PRESIDENT: What page number?
PN2306
MR BONCARDO: Perhaps if it's convenient, sir, I'll just take you to page 890 of the - - -?‑‑‑No, I'm on page 0915.
PN2307
Just look at 890 for me. It's a copy of a letter from Mr Spibey with the relevant term of the contract contained in it. Do you recognise the italicised portion of that letter as the term that was included in the employees contracts?‑‑‑Yes.
PN2308
That term allows BGC if it finds it necessary and subject to first consulting with the employee to make any change it wants to the contracts, doesn't it?‑‑‑Yes.
PN2309
It also allows BGC if it's required to consider amendments to the contracts and after consulting with the employee make changes to those contracts doesn't it?‑‑‑Yes, to - (indistinct) preserved conditions, yes.
PN2310
So it's certainly not the case is it that the preserved conditions under these contracts are unchangeable, they're going to apply forever and a day?‑‑‑Yes, given that this was put in writing, yes.
PN2311
So they are or they aren't unchangeable sorry, sir?‑‑‑No, they are - they can be changed.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2312
They can be changed?‑‑‑Through - if any of these conditions are met and through consultation with the employees.
PN2313
You only have to consult them and you can just change the terms and conditions. That's right isn't it?‑‑‑As specified in here.
PN2314
Thank you, sir. Sir, I just want to ask you a question about paragraph 42 of your statement.
PN2315
THE DEPUTY PRESIDENT: I mean I think it's legal opinion but I think it's his view of what it meant and it's relevant in the sense that if an employee had asked him, that's the answer he would have given.
PN2316
MR FLETCHER: Yes, I don't have an issue with that. In fact I think it supports our case.
PN2317
MR BONCARDO: Does it? Sir, the consultation meetings you have set out there, the first one was with two particular crews wasn't it?‑‑‑Yes, so we've got A, B, C and D, so there's two particular crews on the 20th and then the other on the 21st.
PN2318
So it's not correct is it that you had four separate consultations with each crew, you only had two consultations with each crew?‑‑‑No, we had a meeting on the 20th, so there was a meeting that we held. So whether it was with A and B or C and D, we had meeting on the 21st, we had a meeting on the 11th and a meeting on the 13th. Wo we had meetings on these specific days.
PN2319
I understand. Now sir, some of the evidence that you gave this morning related to the - your instructions to distribute copies of the Mining Industry Award to crib rooms. Remember that evidence?‑‑‑Yes.
PN2320
You didn't distribute any copies yourself did you?‑‑‑I didn't.
PN2321
Do you have your lunch in the employee crib rooms do you, sir?‑‑‑I do.
PN2322
Take your breaks in the employee crib rooms?‑‑‑Yes, sometimes I do. I actually go and join the boys for lunch.
PN2323
THE DEPUTY PRESIDENT: One question too many.
*** TARIRO RUWIZA XXN MR BONCARDO
PN2324
MR BONCARDO: Now sir, your statement so far as the distribution of the Mining Industry Award is concerned, is a full and encompassing account of your knowledge about the distribution of the award to the various crib rooms isn't it?‑‑‑Can you please repeat the question?
PN2325
Your statement insofar as it concerns the distribution of the Mining Industry Award to the relevant crib rooms is a full and encompassing account of your knowledge about those matters?‑‑‑Yes.
PN2326
Thank you, sir. So I want to ask you a question about one of the frequently asked questions that was provided to employees on I think it was 2 May?‑‑‑What's the red number?
PN2327
I am looking for it, sir. This was some evidence that was led by my friend earlier today so I apologise for not having it at my fingertips but I will have it shortly. I think they start at page 519 and I'd like you to look at - I'd like you to look at page 521 for me. Now just wait for a minute, sir, and answer this question. You understand don't you that an enterprise agreement can include terms and conditions of employment above and beyond those of the award on which it's based?‑‑‑Yes.
PN2328
And it can provide for far more beneficial terms and conditions of employment - - -?‑‑‑I think that's what we have now in our business.
PN2329
At the moment until this agreement's approved?‑‑‑At the moment, yes.
PN2330
Now sir, why then did you tell employees or did BGC tell employees at question 13 on page 521 of the bundle of documents, that the new mining agreement must be based on minimum award conditions. That's just not right is it, sir? There's no necessity for the enterprise agreement to be based on the minimum conditions under the award is there?‑‑‑Yes but it was - it was explained why BGC was doing that, because if you read further we're looking at regions, we are looking at different sectors, we're looking at the changed market conditions and our competitiveness in the market as well. So once we acknowledged that we're paying - we're clearly paying above the actual award, but for us to go out there in the current market and tender for new work we had to look at the mining award and the preserved conditions.
PN2331
You accept though, don't you, that it is incorrect to say that an enterprise agreement must be based on and reflect - - -
*** TARIRO RUWIZA XXN MR BONCARDO
PN2332
MR FLETCHER: It doesn't say an enterprise agreement. It says the new mining agreement.
PN2333
MR BONCARDO: That's not much of an objection. You accept - - -
PN2334
MR FLETCHER: If you're going to put - if you're going to put actual words to a witness then put the actual words to the witness.
PN2335
MR BONCARDO: I'm not putting actual words. If you wait till the question's asked and then object we'll be much quicker. You accept don't you that it is wrong to say that an enterprise agreement must be based on the minimum terms and conditions set out in an award, don't you?‑‑‑I don't - I don't know about that because as I said in here it says the new mining agreement must be based on the minimum industry award conditions to allow to adopt different employment conditions (indistinct).
PN2336
Sir, what were your usual hours of work in March to June?‑‑‑March to June?
PN2337
Yes?‑‑‑My rostered hours are 10 hour days and I schedule my days as and when I see fit.
PN2338
Is the operation that you oversee a 24 hour operation?‑‑‑Yes, 24/7.
PN2339
So there were 14 hours a day when you weren't on-site?‑‑‑There were what?
PN2340
Fourteen hours a day when you weren't working on the site, correct?‑‑‑Yes, sometimes yes.
PN2341
So you certainly weren't present on the site during the course of the bargaining process were you?‑‑‑(No audible reply)
PN2342
THE DEPUTY PRESIDENT: Different word.
PN2343
MR BONCARDO: You weren't around all the time during the course of the negotiations?‑‑‑Yes, I wasn't on all the time. (Indistinct) so I work 10 hour shifts.
PN2344
Certainly. That's the cross-examination.
*** TARIRO RUWIZA XXN MR BONCARDO
THE DEPUTY PRESIDENT: Thank you. Anyone else?
CROSS-EXAMINATION BY MR THOMAS [10.13 AM]
PN2346
MR THOMAS: Thank you, your Honour. I just have a few questions for Mr Ruwiza.
PN2347
THE DEPUTY PRESIDENT: I've heard that before.
PN2348
MR THOMAS: Can I take you to clause 12 of your statement?‑‑‑Yes.
PN2349
There you say:
PN2350
BGC Contracting has worked in coal mining -
PN2351
And it goes on - so to continue (indistinct) worked in coal mining. Can you tell me what coal mining work BGC has been involved in?
PN2352
MR FLETCHER: Can I just - Deputy President, I don't want to interfere with the cross-examination but if anything's commercially sensitive - no, no, there are active tenders involved at the moment.
PN2353
MR THOMAS: I'm not interested in what they're tendering for.
PN2354
MR FLETCHER: Right.
PN2355
MR THOMAS: I'm interested in past.
PN2356
MR FLETCHER: Thank you. Thank you for clarifying that. Just that there are some tenders in place at the moment.
PN2357
MR THOMAS: I was going to say, your Honour, the material I've been looking at is on their website so if it's commercial in-confidence - - -
PN2358
MR FLETCHER: No, that means it's up for grabs. We've looked at that too. Go for it. Go for your life.
*** TARIRO RUWIZA XXN MR THOMAS
PN2359
MR THOMAS: Go ahead?‑‑‑So, BGC Contracting did work at Hail Creek from 2004, which is a Rio Tinto Coal mine.
PN2360
Can you - - -?‑‑‑And it is on our web site.
PN2361
Yes, it is?‑‑‑Yes.
PN2362
Can I tell you that it says you did civil works at Hail Creek?‑‑‑Yes, yes, so there was mining packages and civil packages.
PN2363
That's not mining work is it, civil work's building roads?‑‑‑There was mining works there.
PN2364
Yes, there was some overburden at Hail Creek, is that correct?‑‑‑I wouldn't have the specific details but I know that we did work at Hail Creek for Rio Tinto.
PN2365
Yes, in 2004?‑‑‑Yes.
PN2366
Twelve years ago. I put it to you that BGC initially undertook civil works on the haul road?‑‑‑Yes.
PN2367
That's correct?‑‑‑It was a civil package.
PN2368
Civils works, that's not mining work covered by the Black Coal Mining Industry Award is it?‑‑‑Yes.
PN2369
It is covered by the Black Coal Award?‑‑‑(No audible reply)
PN2370
The building of roads is not covered by the Black Coal Mining Industry Award?‑‑‑Agreed, yes. It's civil.
PN2371
Any others that you can think of?‑‑‑Well that's the one that I know that we actually did mining work outside of the civil. The other jobs were civil.
*** TARIRO RUWIZA XXN MR THOMAS
PN2372
There are others but we looked - - -?‑‑‑It was all civil, yes. So in this year, the one that I've put in there is actually to do with mining because the EA we're talking about was for mining works.
PN2373
That was the removal of the overburden, the contract in 2004. Thank you.
PN2374
MR FLETCHER: I think just for the transcript I don't think Mr Ruwiza gave an answer to that.
PN2375
THE WITNESS: So yes, BGC did mining for Rio Tinto Coal.
PN2376
MR THOMAS: At Hail Creek?‑‑‑At Hail Creek in 2004, from 2004.
PN2377
That was the removal of some overburden. That was the work?‑‑‑I won't go into the specifics of the work but we did some mining works. Outside of the civil, we did mining work for Rio Tinto Coal.
PN2378
That's fine. It's not exactly my point but it's just putting some historical perspective of that involving coal mining. Can I take you to paragraph 20?‑‑‑20, yes.
PN2379
Paragraph 20, and in it you say and I quote from the end - in the fifth line from the bottom it says, and this is further to the concern about reducing rates. It says:
PN2380
In any event it was not possible for BGC Contracting to do such a thing.
PN2381
What such a thing if we read in the earlier sentence means is the reduction in their rates. Do you see where you say that?‑‑‑I'm talking about the employees were not threatened.
PN2382
Yes?‑‑‑So that's the thing that we said - as BGC said we don't do that. We work to our charter and our values.
*** TARIRO RUWIZA XXN MR THOMAS
PN2383
I'm not raising the issue of your - the issue of threats. That's been dealt with. What I'm raising is the issue of whether or not BGC Contracting could reduce their rates, employees rates. You say that it is not possible for BGC Contracting to do such a thing?‑‑‑If you go - let's go through the whole statement, it was around the threats. We say we never threatened our employees to say if you don't vote yes we will reduce your wages. And that's why we said we will never do such a thing to threaten employees to say if you don't vote we will do this or do that.
PN2384
So that sentence is made in the context of the threats?‑‑‑Yes. It was about the threats to say vote yes otherwise - - -
PN2385
Now paragraph 26. This is in reference to new employees and it says that:
PN2386
BGC Contracting will pay new employees market rates which will depend on the number of factors including the type of business, location, commodity and market conditions.
PN2387
You went onto estimate that the rates might be somewhere between the agreement rates and the preserved rates for new employees?‑‑‑Yes.
PN2388
So if I'm reading that correct, is it true to say that the employees were never likely to be paid the agreement rate on your basis. New employees. They would be paid this amorphous market rate, whatever that happens to be at the time?‑‑‑Yes, so - yes, that's according to my statement here.
PN2389
So strictly speaking the agreement's irrelevant, they're not going to be paid that rate?‑‑‑No, it's relevant because I've put in here that the agreement rates and the preserved rates, so I'm referring to the agreement rates here. Again with that it'll depend then on the market conditions, the commodity and the location. So it's specified in 26.
PN2390
In 26, you would pay somewhere in-between?‑‑‑Between the agreement rates and the grandfathered rate.
PN2391
What I'd like to do here, your Honour, for reasons of efficiency, I want to know have you read the statements of Mr Wood in this matter?‑‑‑Mr Wood?
PN2392
Mr Wood, yes?‑‑‑No, I haven't.
PN2393
Can I ask you what knowledge do you have of the institutional - - -
PN2394
THE DEPUTY PRESIDENT: Because he was excluded. Remember he was outside, he shouldn't be reading them.
*** TARIRO RUWIZA XXN MR THOMAS
PN2395
MR THOMAS: You can read them - I don't know why Mr Ruwiza couldn't have read them.
PN2396
THE DEPUTY PRESIDENT: Well, he was excluded and wasn't supposed to be hearing the evidence of the other witnesses.
PN2397
MR THOMAS: But he could have read the statements. I'm only referring to the statements.
PN2398
THE DEPUTY PRESIDENT: Do you want to provide him with a copy and reference him to what bits you want to - - -
PN2399
MR THOMAS: The material was provided to BGC.
PN2400
THE DEPUTY PRESIDENT: Now, do you want to show him and show the statement so that you can - - -
PN2401
MR THOMAS: Well, this is what I was trying to do to see if we can make the matter - - -
PN2402
MR FLETCHER: I don't think Mr - yes, Mr Ruwiza was never responding to anything - he was never - I don't think anything in his statement is directly responsive to a contention that's in one of Mr Wood's statements so any - and that's why he probably hasn't seen the statement and yes, I think he needs to see it if he's going to be asked a question about it.
PN2403
MR THOMAS: Look, my point is this, your Honour. In Mr Wood's statements he makes a series of points about the institutional arrangements plus other arrangements within the coal mining industry.
PN2404
THE DEPUTY PRESIDENT: Yes.
PN2405
MR THOMAS: What I wanted to do is to know whether Mr Ruwiza either agrees or disagrees that those are the characteristics.
PN2406
THE DEPUTY PRESIDENT: Well, I suppose Mr Wood's evidence is unchallenged unless Mr Fletcher puts something to the contrary. So I don't know if you want to go down that - - -
*** TARIRO RUWIZA XXN MR THOMAS
PN2407
MR FLETCHER: Our witness of fact on that is probably going to be Mr Dark.
PN2408
MR THOMAS: Well, that may well be true - - -
PN2409
MR FLETCHER: Mr Dark - - -
PN2410
MR THOMAS: - - - but I don't want me to caught short.
PN2411
MR FLETCHER: No, no, that's okay.
PN2412
THE DEPUTY PRESIDENT: Well, sorry, there's no evidence put to challenge Mr Wood's evidence so far is there? Or did I miss something.
PN2413
MR FLETCHER: No.
PN2414
MR THOMAS: No.
PN2415
THE DEPUTY PRESIDENT: Then you probably don't need to - if it's not challenged then it's - - -
PN2416
MR THOMAS: It's not challenged.
PN2417
THE DEPUTY PRESIDENT: Yes. And if it is challenged - - -
PN2418
MR THOMAS: Well, that we'll say - - -
PN2419
THE DEPUTY PRESIDENT: - - - that's probably the witness that - not for me to lead your case but - - -
PN2420
MR THOMAS: No, what I didn't want to be accused of was you didn't put that to our witness, but if it's not challenged then we can go through - - -
PN2421
THE DEPUTY PRESIDENT: Put whatever you like to Mr Ruwiza.
*** TARIRO RUWIZA XXN MR THOMAS
PN2422
MR BONCARDO: I'm sure Mr Fletcher won't take that point, will you?
PN2423
MR THOMAS: Well, I was only doing that to be expedient because your Honour it's going to take another - - -
PN2424
THE DEPUTY PRESIDENT: Would you like to put the witness statement - Mr Wood's witness statement in front of Mr Ruwiza and take him directly to those points, or is that unnecessary?
PN2425
MR THOMAS: Look, as it hasn't been challenged and Mr Ruwiza doesn't - frankly they're unchallenged. Anybody who has worked in the industry, I'm content to - - -
PN2426
MR FLETCHER: I think Mr Dark has something to say about it in passing in his. It's not necessarily a direct rejection of what's been proposed by Mr Wood. It's an explanation from - or a qualification of a qualified response to what Mr Wood's putting, but that's all in Mr Dark's material and - but I don't object to the question being put, I just think that the answer from Mr Ruwiza might be I don't know.
PN2427
MR THOMAS: That's what I suspect too, your Honour, and I don't intend to waste the time we've got.
PN2428
THE DEPUTY PRESIDENT: If Mr Ruwiza is staying around if it's necessary after Mr Dark you could perhaps recall him. Would that address - - -
PN2429
MR THOMAS: Yes, thank you. Your Honour, I have no further questions.
PN2430
THE DEPUTY PRESIDENT: Thank you. Mr Hardie.
PN2431
MR HANSON: No questions.
THE DEPUTY PRESIDENT: Thank you. Mr Fletcher.
RE-EXAMINATION BY MR FLETCHER [10.25 AM]
*** TARIRO RUWIZA RXN MR FLETCHER
PN2433
MR FLETCHER: I've only got one question, Mr Ruwiza, actually two questions. The Deputy President took you to paragraph - sorry, the Deputy President asked you a question about what the terms and conditions for a new employee would be and I don't think the Deputy President qualified that by talking about a new employee in the context of a new project. Now you've - in paragraph 26, you've given evidence about what - the responses that you gave to questions about new employees. Was that given in the context of new projects, as in new projects that BGC might be tendering for or was it given in the context of new employment on an existing project?
PN2434
MR BONCARDO: I object to the question. It's not something arising from cross-examination.
PN2435
THE DEPUTY PRESIDENT: The cross-examination from the Bench.
PN2436
MR BONCARDO: No, no, even in respect to your Honour's questions. My friend is asking about new projects. Your Honour didn't ask anything about new projects.
PN2437
THE DEPUTY PRESIDENT: Well, I asked - to be fair I generically said new employees, so to be fair is there a distinction Mr Ruwiza between what would be offered to a new employee on existing projects as opposed to a new project. Is it the case that a new employee if the market's suppressed might be offered just the base rates in the agreement?‑‑‑So with the new employees, it's new employees on both new projects and existing projects, so it applied to new employees, yes.
PN2438
The same answer, both projects?‑‑‑Yes.
PN2439
MR FLETCHER: Can I just ask you a further question. Have there been new employees employed at - on the South Australian sites since the agreement was voted up?‑‑‑Yes.
PN2440
MR BONCARDO: I object to that question.
PN2441
THE WITNESS: Yes.
PN2442
MR FLETCHER: Can you tell me the number of employees that have been employed?
PN2443
MR BONCARDO: Your Honour, this isn't arising from your Honour's question.
PN2444
MR FLETCHER: It is. It's very important. It's actually very important.
*** TARIRO RUWIZA RXN MR FLETCHER
PN2445
MR BONCARDO: It should have been led in-chief then.
PN2446
MR FLETCHER: It's very important. Well, I hadn't heard the question - - -
PN2447
THE DEPUTY PRESIDENT: He didn't count on the Bench asking questions. No, I'm not - you can ask the question.
PN2448
MR FLETCHER: Thank you. Mr Ruwiza, can you tell me what the arrangements are for - - -
PN2449
THE DEPUTY PRESIDENT: I think I know where you're going.
PN2450
MR FLETCHER: - - - terms and conditions of employment for three categories of employee; an employee who works at either South Middleback Ranges or Iron Knob and transfers between the two sites, and I'll go through it slowly. An employee who is promoted on those sites or a brand new employee from the market on those sites. What terms and conditions will those employees be paid?‑‑‑So since we have - or since the EA and the voting with it, employees - we've actually only hired more employees at Iron Knob because we went back to night shift mining. All those employees have been hired on the grandfathered rate. We've also had employees that transferred between our sites, so we have some employees who have gone to Queensland to Phosphate Hill which is a new project. They've gone on the grandfathered rates. The new employees that we've got at Iron Knob, so both the new and those that we've promoted they've all been promoted at grandfathered rates.
PN2451
Thank you. That's the - actually - no, that's all I had by way of re-examination.
PN2452
THE DEPUTY PRESIDENT: I don't think I marked Mr Ruwiza's statement.
PN2453
MR FLETCHER: No, I need to tender it. I apologise, Deputy President. If I could tender the statement and attachments.
THE DEPUTY PRESIDENT: I'll mark them B1.
EXHIBIT #B1 WITNESS STATEMENT OF TARIRO RUWIZA TOGETHER WITH ATTACHMENTS
You're free to leave the witness box?‑‑‑Thank you very much.
*** TARIRO RUWIZA RXN MR FLETCHER
<THE WITNESS WITHDREW [10.29 AM]
PN2456
Are you ready for your next witness?
PN2457
MR FLETCHER: Deputy President, can I beg your indulgence for a five minute toilet break.
PN2458
THE DEPUTY PRESIDENT: Sure.
PN2459
MR FLETCHER: Thank you.
SHORT ADJOURNMENT [10.29 AM]
RESUMED [10.39 AM]
PN2460
THE DEPUTY PRESIDENT: Mr Fletcher, who are you calling next?
PN2461
MR FLETCHER: I'm calling Ms Tolomei.
PN2462
THE ASSOCIATE: State your full name and address.
MS TOLOMEI: Corrina Tolomei, (address supplied).
<CORRINA TOLOMEI, SWORN [10.40 AM]
EXAMINATION-IN-CHIEF BY MR FLETCHER [10.40 AM]
PN2464
MR FLETCHER: Ms Tolomei, have you got a copy of the statutory declaration form 17 that you filed in these proceedings?‑‑‑Yes, I do.
PN2465
Yours is not a page numbered copy. Would you prefer to have a page numbered copy?‑‑‑No, that should be fine.
PN2466
Thank you. Just for the benefit of the Commission, in the applicant's court book tab 3, starting at blue number 30, you'll see a copy of Ms Tolomei's statutory declaration. Ms Tolomei, is the statutory declaration true and correct?‑‑‑Yes, it is.
PN2467
To the best of your knowledge?‑‑‑Yes, it is.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2468
I'll seek to tender a copy of the statutory declaration. I'm not sure what the status is of the originating statutory declaration, whether that's already in evidence by virtue of the fact that it comes with the application or whether it should get a separate number.
PN2469
THE DEPUTY PRESIDENT: I'll give it a separate number.
PN2470
MR FLETCHER: I think that's sensible.
THE DEPUTY PRESIDENT: I'll give that B2.
EXHIBIT #B2 COPY STATUTORY DECLARATION OF CORRINA TOLOMEI
PN2472
MR FLETCHER: I'd like to tender a document, a second document, which I'll hand up.
PN2473
THE DEPUTY PRESIDENT: Are you also going to tender 114, tab 13?
PN2474
MR FLETCHER: 118, sorry?
PN2475
THE DEPUTY PRESIDENT: Tab 13.
PN2476
MR FLETCHER: I'm not following.
PN2477
THE DEPUTY PRESIDENT: 114.
PN2478
MR FLETCHER: Yes, I probably should, that's a very good point. What tab is that?
PN2479
MR BONCARDO: 13.
PN2480
MR FLETCHER: 13, sorry.
PN2481
THE DEPUTY PRESIDENT: I'm not doing all the leg work here.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2482
MR FLETCHER: No, no, I'm suffering from tinnitus in the same manner as my friend from yesterday, I couldn't hear you. Sorry, yes, I'll also tender tab 13, page 114.
THE DEPUTY PRESIDENT: I'll mark as B3 the statutory declaration of Ms Tolomei dated 9 September 2016.
EXHIBIT #B3 STATUTORY DECLARATION OF CORRINA TOLOMEI DATED 09/09/2016
PN2484
MR FLETCHER: I've handed up a copy of a document that's - it's a colour printout, it's got "Shed TV script" written at the top.
PN2485
THE DEPUTY PRESIDENT: Yes.
PN2486
MR FLETCHER: I might just prove that first. Actually I'll just take - I think if we can mark it and then I'll take Ms Tolomei to it, although you need a description. Are you happy to describe it as a script or a video script?
PN2487
THE DEPUTY PRESIDENT: You've only just given it to me, so you tell me what it is.
PN2488
MR FLETCHER: I'll tell you what it is. So yesterday we had evidence from Mr Wake about viewing an induction video and what this document is, is the script that formed the basis for the induction video, so the induction video was - the script for the induction video is set out in this document. So what I'm going to be asking Ms Tolomei is the providence of this document and how it relates to the induction video that Mr Wake will have seen.
PN2489
THE DEPUTY PRESIDENT: Right, so script for induction video.
PN2490
MR HARDIE: I object, your Honour. Why can't we see the video?
PN2491
THE DEPUTY PRESIDENT: Because that will cause my Associate some distress in trying to arrange it. Do you contest that the script is not - - -
PN2492
MR HARDIE: Well, I can't - my witness' evidence was what he saw on a video, not what he saw on a script and therefore - I mean - - -
*** CORRINA TOLOMEI XN MR FLETCHER
PN2493
THE DEPUTY PRESIDENT: Mr Fletcher, are you asserting that this is the video that the witness saw yesterday?
PN2494
MR FLETCHER: Yes.
PN2495
THE DEPUTY PRESIDENT: If so, why did you not put the script to the witness yesterday? Or secondly, are you just going to get Ms Tolomei to give evidence that this is the induction video that the organisation uses, it doesn't have any other induction videos, and not give evidence - and not assert that it's necessarily - they can make their own conclusions about whether that's the one that the witness saw
PN2496
MR FLETCHER: Well, she'll give evidence that this is the induction video. The only induction video that Mr Wake would have seen.
PN2497
THE DEPUTY PRESIDENT: Your explanation of why it wasn't put to Mr Wake yesterday?
PN2498
MR FLETCHER: I think I put to Mr Wake that it wasn't said in the - that what he'd asserted wasn't actually - wasn't actually what was said.
PN2499
MR HARDIE: Only the transcript will tell but I don't concur with what my friend's saying about the denial, and once again - - -
PN2500
THE DEPUTY PRESIDENT: I can attach appropriate weight to it that it wasn't put to the witness, and Ms Tolomei can just give evidence that this is the script of the video that she, in her capacity as HR manager, hits a button and delivers to employees. Mr Fletcher would have greater weight to his evidence if he'd put it to the witness yesterday, so really it's only Mr - the harmony goes to Mr Fletcher not to.
PN2501
MR HARDIE: The point is your Honour would be aware of actors and people in presentations going at lib, so what's written on the script - well, we've got no way of knowing if what's written on the script was actually said.
PN2502
THE DEPUTY PRESIDENT: Unless Ms Tolomei has watched the video and can give evidence that the script matches what's shown on the video.
PN2503
MR HARDIE: Well, then - well our objection stands but we understand.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2504
THE DEPUTY PRESIDENT: I'll attach appropriate weight to it.
PN2505
MR HARDIE: Yes.
PN2506
MR FLETCHER: I don't think it's a central point to the case. It's just an issue that I think deserves an explanation and Ms Tolomei's going to provide the explanation.
THE DEPUTY PRESIDENT: Thank you. So I'm going to mark this script for induction video as B4.
EXHIBIT #B4 SCRIPT FOR INDUCTION VIDEO
PN2508
Mr Wake's not still here today, is he? I know some of the witnesses are but Mr Wake's not still here?
PN2509
MR BONCARDO: No, your Honour.
PN2510
THE DEPUTY PRESIDENT: Thank you.
PN2511
MR FLETCHER: He won't be now.
PN2512
MR HARDIE: Well, what does that mean? You wanted - on behalf the employer you wanted them back as soon as possible.
PN2513
MR FLETCHER: Right.
PN2514
MR HARDIE: After giving evidence. Well, don't make your smart little comments, which have been going all morning - - -
PN2515
THE DEPUTY PRESIDENT: Gentlemen, you've only got a few more hours together. Let's just bat on.
PN2516
MR HARDIE: - - - and expect not to get a response. So next time think before you open your mouth.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2517
MR FLETCHER: On that note - - -
PN2518
THE DEPUTY PRESIDENT: Only a few more hours.
PN2519
MR FLETCHER: Ms Tolomei, have you got a copy of the document marked "Shed TV script" in front of you?‑‑‑Yes, I do.
PN2520
Can you explain to the Commission what that document is?‑‑‑So this is a prepared script for the purpose of putting together our corporate induction video.
PN2521
Can you describe in your own words, how this script becomes the video that will have been seen with reference to Mr Wake's commencement?‑‑‑So at all of our inductions, all employees at that induction are shown this video and - to introduce them to the company. This is the first thing that they're actually shown.
PN2522
To the best of your knowledge, is the content of the script exactly what appears in the video?‑‑‑Yes, it is.
PN2523
Does the script or the video refer in any capacity to unions?‑‑‑No.
PN2524
Thank you. Ms Tolomei, have you got a copy of the chronological bundle of documents in front of you?‑‑‑Yes, I do.
PN2525
Can you take the Commission to the page - to the page references in the book to the instances where there's a recording of questions being asked by employees at BGC at West Australian sites in the course of the negotiations for the agreement?‑‑‑Yes.
PN2526
MR BONCARDO: I don't mean to be pedantic or interruptive but I do object to the question. I anticipate what the result will be, your Honour, but none of these employees are - - -
PN2527
THE DEPUTY PRESIDENT: I have found in your favour in the last day or two.
PN2528
MR BONCARDO: You have, you have but I need an objection noted that none of these employees are called to give evidence, none of these other managers who might have written down these notes have been called to give evidence.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2529
THE DEPUTY PRESIDENT: Could you just put the question again, Mr Fletcher?
PN2530
MR FLETCHER: Yes.
PN2531
THE DEPUTY PRESIDENT: Sometimes I lose track halfway through the question.
PN2532
MR FLETCHER: Sorry. Ms Tolomei, can you take the Commission to documents in the bundle at various pages that show your understanding of where employees were asking - sorry, employees in Western Australia were asking questions about the agreement in the course of the consultation process?‑‑‑Yes, I can.
PN2533
Thank you?‑‑‑Would you like me to - - -
PN2534
THE DEPUTY PRESIDENT: Yes, what page?‑‑‑I've just got to stand if you don't mind. The first page is 0072 and these are all questions that have been noted from Mt Webber on 31 March.
PN2535
MR FLETCHER: Ms Tolomei, can you each time you point to a document?‑‑‑Yes.
PN2536
Can you explain how you came to be in possession of the document or how you came to be aware of the document?‑‑‑So I became aware of the document as sent through from an advisor within my team who attended those meetings.
PN2537
Thank you?‑‑‑The next document is 0077 and this is a question that has come from Koolyanobbing, 31 March, Chelsea Haven is an advisor within my team who attended that rollout in person.
PN2538
THE DEPUTY PRESIDENT: I suppose, Mr Boncardo, she's just giving evidence of emails she's received rather than evidence - - -
PN2539
MR FLETCHER: They're business records.
PN2540
THE DEPUTY PRESIDENT: Yes.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2541
MR BONCARDO: If they're not being led for a hearsay purpose I've got no issue.
PN2542
THE WITNESS: Would you like me to continue?
PN2543
THE DEPUTY PRESIDENT: Yes?‑‑‑Yes. 0080, question from Chelsea Haven, 1 April. Number 0081, this has come from Chelsea Haven, 3 April, again present at the Koolyanobbing rollout. 0087, Krish Devan is an employee advisor in my team who attended the rollout at the Hazelmere workshop. 0262 - sorry 0267, this is a question that's come from Graeme Richardson, mining superintendent at Koolyanobbing.
PN2544
MR FLETCHER: Sorry, what was that last number?‑‑‑0267.
PN2545
Thank you?‑‑‑The next one is 0272, again Chelsea Haven from Koolyanobbing. 0275, Frank Wightman, senior project manager, Mt Webber. 0287, Chelsea Haven, from Koolyanobbing. 0295 - sorry.
PN2546
THE DEPUTY PRESIDENT: I've got take notes. I'm trying to find them and read them. 0287. What was the one after that?‑‑‑0295 and if you refer to - it goes onto 0296 and 0297. Then we need to flick quite a way down the book to 0452. Again these are questions that have come from Koolyanobbing mining superintendent. 0574, sorry I'll just wait.
PN2547
So after 0452?‑‑‑Is 0574. This is a question that's come from Koolyanobbing. Next is 0603, these are questions that have come from Koolyanobbing. Next ones are 0605 - sorry.
PN2548
After 0603?‑‑‑0605, these are questions that have come from Mt Webber, Rob Stevenson's our operations manager mining for Mt Webber.
PN2549
Mr Boncardo, I presume that you're going to cross-examine or make some submissions on the weight which is attached to - - -
PN2550
MR BONCARDO: Yes, I probably will, your Honour. These documents after hearing from the witness - perhaps I'm speculating a bit, probably don't concern the case I'm running, so I'm not too fazed by them, your Honour.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2551
THE WITNESS: I've only got three more sections, sorry. 0644, again from Mt Webber. 0646, and these are questions from Koolyanobbing. The last one is 0885, and this is a question from Koolyanobbing. That is it.
PN2552
THE DEPUTY PRESIDENT: Thank you.
PN2553
MR FLETCHER: Ms Tolomei, can you tell me what your title is at the current time?‑‑‑Currently my title is General Manager People.
PN2554
At the time you signed the statutory declaration?‑‑‑My title was Senior Manager People.
PN2555
But have your responsibilities changed?‑‑‑No.
PN2556
Can you describe in your own words what your areas of responsibility are?‑‑‑So I have five functional areas that I look after. They are workforce planning and sourcing, culture and development, remuneration and benefits, systems and data, and employee relations and industrial relations.
PN2557
Can you tell me based on your knowledge - sorry, and you signed the statutory declarations so obviously you're aware of the enterprise bargaining process that led to the filing of the application for approval of the agreement?‑‑‑Yes, I do.
PN2558
Can you tell me based on your knowledge of that process and the information that you've been provided by people that report to you, and the documents that we've just been through, whether - or can you tell me and describe if there were any instances in the enterprise bargaining process where an employee in Western Australia was scared to ask questions about the agreement?
PN2559
MR BONCARDO: That question is objectionable.
PN2560
THE DEPUTY PRESIDENT: Yes, she can't give evidence of the emotions of other people.
PN2561
MR FLETCHER: No, what she can give evidence of is whether anything was escalated to her, and that's - - -
PN2562
THE DEPUTY PRESIDENT: That's not the question you asked.
*** CORRINA TOLOMEI XN MR FLETCHER
PN2563
MR FLETCHER: I'll rephrase the question. Has any issue been escalated to you or are you aware of any issue of where an employee has raised the fact that they were scared to vote yes for the enterprise agreement?‑‑‑No.
PN2564
Has any issue been elevated to you where an employee says that they were threatened that if they - that if they didn't vote yes for the agreement that there would be adverse consequences?‑‑‑No.
PN2565
Have there been any instances where it's been elevated to you an issue where an employee has been offered an individual benefit in order to encourage them to vote yes?‑‑‑No.
PN2566
THE DEPUTY PRESIDENT: Isn't that what the preserved conditions are?
PN2567
MR FLETCHER: That's a matter for submission, Deputy President. It's not an - that's an indiscriminate offer. That's not an inducement, that's an indiscriminate offer. There are Commission authorities on that and what I'm asking Ms Tolomei about, I was very careful about the way I asked the question. Were there any individual inducements? Were people offered money, benefits, bribes, any other kind of benefit in order to vote yes for the agreement?‑‑‑No.
PN2568
Then the third question I wanted to ask you is were any employees - do any issues elevated to you from employees in Western Australia, or anywhere, about being misled about the - what was being put them?‑‑‑No.
PN2569
Sorry, I'll rephrase that. Were any issues elevated to you in relation to employees in Western Australia during the enterprise bargaining process being provided with false information in order to elicit a yes vote from them?‑‑‑No.
Thank you. That's it for examination-in-chief.
CROSS-EXAMINATION BY MR BONCARDO [11.04 AM]
PN2571
MR BONCARDO: Ms Tolomei, as a senior manager of people you're someone with a knowledge and understanding of the provisions of the Fair Work Act concerning enterprise bargaining?‑‑‑Yes.
PN2572
Concerning particularly the better off overall test?‑‑‑Yes.
*** CORRINA TOLOMEI XXN MR BONCARDO
PN2573
You're also someone with a knowledge and understanding of the Mining Industry Award, which is the award which covers employees, some of the employees anyway who work within BGC business?‑‑‑Yes.
PN2574
Madam, your statutory declaration was, you understand, a declaration made under the Statutory Declarations Act 1959?‑‑‑Yes.
PN2575
You understand that it's a serious thing not to put - rephrase that. To put incorrect information in a statutory declaration?‑‑‑Yes.
PN2576
You obviously ensured to the best of your ability that when you made the statutory declaration everything in it was absolutely correct?‑‑‑That's correct.
PN2577
You also understand don't you that the Fair Work Commission relies to a large extent on the material contained in form F17 declarations, to deal with the pre-requisites to an approval of an agreement?‑‑‑Yes.
PN2578
Now madam, you said in your declaration at clause 3.5 that there were no terms in the enterprise agreement that were less beneficial than under the Mining Industry Award, amongst others, my friend Mr Thomas is going to ask you about the Black Coal Award?‑‑‑That's right.
PN2579
That's so far as you're aware absolutely correct?‑‑‑That's right.
PN2580
You also said in your declaration at 3.4, if you turn back a page, "that employees will always be better than rates in the mining awards". It's at the base of the page, I think it should probably read something like "will always get better rates than under the mining award". Do you see that?‑‑‑Yes.
PN2581
That's the case, is it?‑‑‑Yes.
PN2582
Madam, it's not an understatement to say that BGC is a large company?‑‑‑That's right.
PN2583
It employs over 1000 people in Australia?‑‑‑Yes.
PN2584
How many approximately does it employ?‑‑‑Approximately 1600.
*** CORRINA TOLOMEI XXN MR BONCARDO
PN2585
It's got access to internal human resources and industrial relations advice from specialists like yourself and Ms Thorpe?‑‑‑Yes.
PN2586
How many HR/IR advisory type personnel does BGC employ?‑‑‑Myself and Ms Thorpe.
PN2587
You've got a team that you work with?‑‑‑A team as in - can you clarify?
PN2588
You made reference to a team when my friend was asking you some questions?‑‑‑Yes, the team is referring to other functions within HR but do not have specialities that are the same as Ms Thorpe and myself.
PN2589
Certainly. It's the case that BGC a company of significant size has the capacity it needs to to reach out to external advisors like Mr Fletcher when needs be on industrial employment issues?‑‑‑Yes.
PN2590
Now the majority of employees if not all the employees covered by the proposed enterprise agreement are common workers, aren't they?‑‑‑Yes.
PN2591
Thank you, madam. Now madam, you're familiar with the provisions of the enterprise agreement that's before the Commission?‑‑‑Yes.
PN2592
The rates of pay, the base hourly rates of pay I should say, are contained at clause 7.2?‑‑‑Yes.
PN2593
Do you see - - -
PN2594
THE DEPUTY PRESIDENT: Do you have a page number?‑‑‑0102.
PN2595
01?‑‑‑02.
PN2596
MR BONCARDO: Madam, you understand at the time this agreement was made those rates were - I think you give evidence in your statutory declaration - slightly above those rates - the rates prescribed by the Mining Industry Award?‑‑‑Yes.
PN2597
You're aware are you not that in the space of time between the making of this agreement and today when her Honour is considering it, that the rates of pay under the Mining Industry Award have increased?‑‑‑Yes.
*** CORRINA TOLOMEI XXN MR BONCARDO
PN2598
You understand don't you that the weekly rates set out in the table in clause 7.2 and the base hourly rates, are now less than the rates which are provided by the Mining Industry Award?‑‑‑They're made impossible to some extent.
PN2599
It's the case isn't it that at least so far as you understand, clause 7.3 requires those base rates to increase only so long as it's necessary to ensure that they're no less than applicable in the wage rate?‑‑‑Yes.
PN2600
So it's the case that the rates under the agreement presently have to be just on the award, exactly the same as the award?‑‑‑Yes.
PN2601
So it's not correct is it, to say that the rates of pay, the base rates of pay under the agreement will always be better than the award here?‑‑‑No.
PN2602
Thank you. Now madam, because your understanding was that no terms of the enterprise agreement were less beneficial than terms of the award, you and BGC didn't tell the employees at any point that there might be terms of the Mining Industry Award that were better than or more beneficial than terms of the enterprise agreement?‑‑‑Not at the point of time we had the discussions, no.
PN2603
For instance, you never told workers during bargaining that there was no job search entitlement in circumstances of an employee given notice of termination - rephrase that. In circumstances of BGC giving an employee notice of termination, in circumstances of redundancy under the agreement?‑‑‑Mm-hm.
PN2604
Whereas there was one under the award?‑‑‑Yes.
PN2605
You didn't say anything about that?‑‑‑No.
PN2606
You also didn't say anything about the employees having imposed upon them by the agreement a two week mandatory notice period before they were able to take annual leave, in circumstances where no such period is prescribed by the award?‑‑‑Sorry, can you rephrase that one again and what section you're referring to?
PN2607
You didn't say - - -
*** CORRINA TOLOMEI XXN MR BONCARDO
PN2608
MR FLETCHER: I'm just - I'm a little bit troubled that what Mr Boncardo is putting to Ms Tolomei as a fact as it were, is that these matters are indeed better off - sorry, items that are worse off. Now that's a matter for submission later and we'll be ready to answer that. Now Ms Tolomei signed a statutory declaration having received advice from the external advisors, and we were the external advisor, we take responsibility for giving that advice. The issues that Mr Boncardo is taking Ms Tolomei to are infinitely arguable. Now I don't mind if Mr Boncardo wishes to put to Ms Tolomei what's in the agreement and put to her what's in the award but I don't think that he should be seeking a conclusion from her about what's better or worse off.
PN2609
THE DEPUTY PRESIDENT: Well, she has - - -
PN2610
MR BONCARDO: I'm not seeking any conclusion at all.
PN2611
THE DEPUTY PRESIDENT: She's offered an answer. She hasn't said she doesn't understand or doesn't have an opinion on it. She's given evidence that she's in a very senior - most senior role in the organisation. She has expertise in the area, that she's responsible for signing off on these matters. That she had discussions with employees about these matters. He's asking questions and she's responding to them. If there's any that she doesn't think she can answer I'm sure she is able to speak freely for herself.
PN2612
MR FLETCHER: Thank you.
PN2613
MR BONCARDO: Your Honour, if my friend is able to conceded that at no point did his client direct the attention of its employees to any provisions of the award that were perhaps more beneficial than the agreement, then I don't need to ask Ms Tolomei anymore questions.
PN2614
THE DEPUTY PRESIDENT: Didn't she say that a moment ago?
PN2615
MR BONCARDO: She did - - -
PN2616
THE DEPUTY PRESIDENT: But only in relation to particular clauses.
PN2617
MR BONCARDO: I'm dealing with the discreet provisions but if the position is accepted that there was no discussion at all about any provisions of the agreement - - -
PN2618
THE DEPUTY PRESIDENT: We don't need to go clause by clause.
*** CORRINA TOLOMEI XXN MR BONCARDO
PN2619
MR BONCARDO: No.
PN2620
THE DEPUTY PRESIDENT: Mr Fletcher.
PN2621
MR FLETCHER: We don't have an issue accepting that.
PN2622
MR BONCARDO: That's in respect to the Mining Industry Award and the Black Coal Award?‑‑‑Yes.
PN2623
MR FLETCHER: Yes, it is, that's right.
MR BONCARDO: I've no further questions for this witness, your Honour.
CROSS-EXAMINATION BY MR THOMAS [11.15 AM]
PN2625
MR THOMAS: Your Honour, that last interchange has significantly reduced my questions. There are number of provisions which you'll see in our submissions where we say the provisions of the agreement are less than (indistinct) employees that is the Black Coal Mining Award. (Indistinct) leave that for your Honour to make an assessment. Ms Tolomei, my questions will be confined to the Black Coal Mining Industry Award. Do you agree that the Black Coal Mining Industry Award is incorporated into the enterprise agreement?‑‑‑Yes.
PN2626
In your statement at 2.4, this goes to the distribution of documents, you refer to employees being given a pack of written information. Then over in 2.6 you outline what that information was. It's true, is it not, that a copy of the Black Coal Mining Award was not included in that document pack?‑‑‑Yes, the actual document, there was a link to the website where they could obtain a document.
PN2627
So this is where it referred to a reference document sheet with links, reference Modern Awards National Employment Standards in the Fair Work Act?‑‑‑Yes.
PN2628
Did this reference document sheet refer them - would they click on some sort of hypertext that would take them straight to the Black Coal Mining Industry Award, or did it take them to the Commission's website?‑‑‑It would take them to the Commission's website.
PN2629
So from there the employee then had to find the - - -?‑‑‑Yes.
*** CORRINA TOLOMEI XXN MR THOMAS
PN2630
Do you accept that many of the terms and conditions set out in the Black Coal Mining Award differed significant from the Mining Industry Award?‑‑‑Yes.
PN2631
Do you accept that the classification structure in the Black Coal Award is not the same as the classification structure in the Mining Industry Award?‑‑‑Yes.
PN2632
Now who prepared Schedule A in the enterprise agreement?‑‑‑Can I refer to Schedule A that you're referring to?
PN2633
Yes. Page 20?‑‑‑I'm just trying to find it in the document. 0117. So your question again, sorry?
PN2634
Who prepared that schedule?‑‑‑It would have been with our legal assistants.
PN2635
So a team effort so to speak?‑‑‑Yes.
PN2636
If I take you to the paragraph at the end it talks about - - -?‑‑‑The paragraph at the end of the schedule?
PN2637
At the bottom of the schedule. The very last sentence says:
PN2638
Coal mining employees will receive a flat payment of $35 per week in addition to the weekly rate specified in Schedule A of the coal award.
PN2639
?‑‑‑Yes.
PN2640
So that in essence is the coal award with a $1 per hour in effect in a 35 hour week?‑‑‑Essentially, yes.
PN2641
Do you agree that throughout the life of this agreement there will be no increases to that rate?‑‑‑No.
PN2642
Can you show me where in that agreement it says there will be any increase to the rate as set out in that last sentence?
*** CORRINA TOLOMEI XXN MR THOMAS
PN2643
MR FLETCHER: I don't think it's in the agreement. It's a matter for submission that we'll be making later.
PN2644
MR THOMAS: Your Honour, I asked the question whether there was any provision in the agreement that provided for increases to employees in coal mining under the agreement.
PN2645
THE DEPUTY PRESIDENT: Are you aware of any provisions in the agreement?‑‑‑I can't refer to them at the moment, sorry.
PN2646
There you go you've had your question.
PN2647
MR THOMAS: I beg your pardon?
PN2648
THE DEPUTY PRESIDENT: There you go you've had your question.
PN2649
MR THOMAS: Well, do you agree that there are no wage increase for coal mining?‑‑‑I can't comment on that at the moment.
PN2650
Do you agree that there are no increases to allowances in the Coal Mining Industry Award per the enterprise agreement?‑‑‑At this point in time I'm aware that there isn't anything written in there.
PN2651
In point 3.4, paragraph 3.4 of your F17 - - -?‑‑‑Sorry?
PN2652
Paragraph 3.4 and in particular if you go over the page you'll see a table for coal employees. Now it's true is it not since that document was prepared the coal award rate has increased?‑‑‑Yes.
PN2653
Given that the reference of coal award is the coal award as at date of approval, assuming it's approved, that agreement rate would have moved as well by $35?‑‑‑Yes.
PN2654
Would you agree that by that movement there would have been a decrease in the percentages?‑‑‑Yes.
*** CORRINA TOLOMEI XXN MR THOMAS
PN2655
In 4.2 you say that this will operate in the states and territories of South Australia and Western Australia. The agreement's not so confined?‑‑‑No, at the time - at the time that we submitted this application we were operating in only South Australia and Western Australia.
PN2656
Yes, that's true but the agreement - so if I'm reading you correctly you're saying that you interpreted that as saying where you were operating at the time?‑‑‑Yes.
PN2657
Rather than where will it operate over the life of the agreement?‑‑‑Yes.
PN2658
Which may well be different?‑‑‑Yes.
PN2659
Because I suspect the question's asking the latter but I understand what you're saying. Just a few more. Do you have the agreement in front of you? Yes, you do. Can you tell me - go to clause 15.1. I want to speak in the context of the coal mining award. It says - the second sentence says:
PN2660
Any penalty payments under clause 12 or 13 are in substitution of any other loadings or penalty rates.
PN2661
Where does that have application to the coal mining award?‑‑‑I can't make a comment on that.
PN2662
You can't make a comment on that. I'll take you to your annual clause?‑‑‑Sorry, what clause number?
PN2663
Seventeen. Now one of the provisions that's not ruled as being substituted by - - -
PN2664
THE DEPUTY PRESIDENT: There we go, there's a partner for the Bench. You know the rules in my court. Your phone goes off, you might a carton for the presiding member and I get to pick it and I've got expensive taste.
PN2665
MR THOMAS: What is it, Belgium, your Honour?
PN2666
MR FLETCHER: As long as it' not CUB I think it's fine.
PN2667
THE DEPUTY PRESIDENT: I'm getting chocolate and alcohol from the CFMEU. There goes the bias application, Mr Fletcher.
*** CORRINA TOLOMEI XXN MR THOMAS
PN2668
MR BONCARDO: It's gone from apprehended to actual.
PN2669
THE DEPUTY PRESIDENT: Now we've got agistments.
PN2670
MR THOMAS: I apologise for that, your Honour, I thought I'd put it on silent. You're a lot more forgiving that some other members of this Commission I've seen on that point I must say.
PN2671
THE DEPUTY PRESIDENT: You haven't seen my taste in alcohol yet.
PN2672
MR THOMAS: Okay. Look, it talks about - 17.9 talks about employees on remote location and on cycle work. What application does that have to the coal mining award where such reference is (indistinct)?‑‑‑I can't make comment on that.
Can't comment on that. Your Honour, that's all I have.
CROSS-EXAMINATION BY MR HARDIE [11.27 AM]
PN2674
MR HARDIE: Morning, Ms Tolomei?‑‑‑Morning.
PN2675
Ms Tolomei, the first questions I'll ask you are in relation to exhibit B4, which was the script that my friend had admitted as evidence?‑‑‑Yes.
PN2676
This is to do with Mr Wake's testimony about what he saw on a video at induction. When Mr Wake was inducted were you with him when he viewed the video?‑‑‑No, I was not.
PN2677
So you don't know what video he saw do you?‑‑‑I am aware of what videos are shown at induction.
PN2678
I put to you that's as a general proposition but you would have - unless you were there, you would have no idea about what video was shown and what was said on it?‑‑‑No, I was not there at that induction to confirm what video was actually shown.
PN2679
Thank you. Now you're located generally in WA aren't you?‑‑‑Sorry?
*** CORRINA TOLOMEI XXN MR HARDIE
PN2680
You're generally located in Western Australia?‑‑‑I live in WA, yes.
PN2681
Now have you seen the employer's F16, which is the application for approval of enterprise agreement signed by Mr Fletcher on 21 June 2016?‑‑‑Are we able to confirm that?
PN2682
Can the - - -?‑‑‑I've got - sorry. I'm just making sure I had it.
PN2683
Can I take you to Attachment B?‑‑‑Yes.
PN2684
You note that there's no bargaining agents with a West Australian address on Attachment B?‑‑‑Yes.
PN2685
So do we conclude there were no bargaining agents appointed in Western Australia?‑‑‑Not in writing, no.
PN2686
Pardon?‑‑‑Not in writing, no.
PN2687
Well, can I put to you that there weren't any bargaining agents in Western Australia?‑‑‑Not in writing, no.
PN2688
So were there any people given bargaining agent responsibilities?‑‑‑Yes, there was.
PN2689
How many?‑‑‑So at Koolyanobbing there was approximately 17, approximately. At Mt Webber there was probably half a dozen.
PN2690
Are you able to name those people?‑‑‑Not at the present moment.
PN2691
None of these people are here to confirm what you're saying are they?‑‑‑No, they're not.
PN2692
So in Western Australia were the NRR's appropriately issued?‑‑‑Yes, they were.
PN2693
Was there any union representation or negotiations that occurred in Western Australia?‑‑‑No, there wasn't.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2694
So what if any efforts did you make - well firstly, as a seasoned and credentialed industrial relations executive and human resources executive, aided by highly priced lawyers, you would no doubt be aware and well advised, you would no doubt aware when you're describing whether people who had voted yes or voted up an agreement have been defined within the Act as generally agreed, you would be aware of those conditions wouldn't you?‑‑‑Yes.
PN2695
One of those conditions that you would be aware of is under section 180(5), which gives an obligation to the employer:
PN2696
The employer must take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to the relevant employees, and the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
PN2697
So you understand don't you that if there are people in isolated or vulnerable situations your clear obligation as the employer is to take proactive steps to explain to people what you're asking the conditions - you're asking to vote on?‑‑‑Yes.
PN2698
So what, if anything, did you do to link your employees' - first let me go back a step. No, I'll continue on that line for the moment. So the proposed enterprise agreement covers employees in South Australia and Western Australia doesn't it?‑‑‑Yes. Our current operations, yes, in Western Australia and South Australia.
PN2699
Yes?‑‑‑Yes, it does.
PN2700
So what active steps did you put - do to have your Western Australian employees communicate with bargaining - employee bargaining agents in South Australia?‑‑‑Can you confirm the bargaining agents you're referring to? Are they the ones noted in Attachment B?
PN2701
No, that's - all I'm saying, my only point - - -
PN2702
THE DEPUTY PRESIDENT: Needs to be a question not a point?‑‑‑Thank you.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2703
MR HARDIE: Yes. Well, I'm not here to answer questions as to who and who not are your bargaining agents. You're a senior executive that signed a statutory declaration, that if you weren't aware that Mr Fletcher had omitted or - sorry, if you were aware of what was on the form 16 that Mr Duncan submitted, you would be aware as to whether or not that information was accurate in terms of who the bargaining agents were, wouldn't you?‑‑‑Absolutely.
PN2704
So you're absolutely aware who the bargaining agents are?‑‑‑I'm aware of - - -
PN2705
THE DEPUTY PRESIDENT: I think she asked a question to clarify who you were asking about, because you asked a series of questions, and she said first of all there were ones which were appointed in writing and then there were ones weren't appointed in writing. She made a distinction between the two. Then after a series of questions you then asked her about bargaining agents. She's asking you, are you asking her about the ones that are appointed in writing or are you asking her about the ones that in addition to that, the 17 at Koolyanobbing or the half a dozen elsewhere, whether your question's directed at that. So if you clarify that I think she might be able to answer your question.
PN2706
MR HARDIE: The paper that you had somehow given some sort of formal or informal - or informal - - -
PN2707
THE DEPUTY PRESIDENT: Recognition.
PN2708
MR HARDIE: - - - permission to bargain on behalf of the employees, what - how did you - what opportunities did you give those people to talk to properly appointed bargaining agents, or not properly appointed bargaining agents but bargaining agents in writing, if you like, in South Australia?‑‑‑I was not approached nor was any of my officers approached by the employee reps that we were recognising in writing or not in writing, that they needed this opportunity and this assistance.
PN2709
So it's your view, is it, that section 180(5) requires you to be asked by an employee to fulfil your obligation of making sure that the terms - - -
PN2710
MR FLETCHER: That section makes no reference at all to facilitating bargaining - for bargaining representatives. I don't know, that's a million miles from what the section says.
PN2711
THE DEPUTY PRESIDENT: I think you're also asking her for an interpretation of the Act which is something that you might give in submissions. You could ask her what her understanding of the Act was, I don't think you can ask her what the Act says, with respect.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2712
MR FLETCHER: Even that's a stretch. I mean it's limited probative value.
PN2713
MR HARDIE: The point is that from your position for isolated - geographically isolated workers, you expected to put them in, to give them the structures to liaise with their counterparts in South Australia, who were all affected by the same enterprise agreement. Your paradigm was that you had to be approached by the workers who - or by informally determined representatives, you had to be approached by them to contemplate providing mechanisms for them to talk to each other?‑‑‑If I can answer that. We provided assistance to our employee reps, the ones nominated in writing and the ones that we recognised that weren't in writing. We provided them in fulfilling the duties that their employee crews had put them in that position. So - but at no stage, and so if you're implying did I expect them to ask for assistance, yes. However, we also provided them as much assistance as thought, they actually needed to fulfil their role.
PN2714
That didn't include talking to other employee representatives interstate?‑‑‑Are you asking me should I have asked that question? Sorry, I'm putting a question back to you. I'm not - I'm not clear - - -
PN2715
No, you don't ask the questions?‑‑‑Sorry, I'm not clear on the question.
PN2716
THE DEPUTY PRESIDENT: Can you restate the question?
PN2717
MR HARDIE: Clearly I'm asking you did you - well, did you contemplate or think it appropriate to put bargaining representatives in Western Australia in touch with bargaining representatives in South Australia?
PN2718
THE DEPUTY PRESIDENT: That's a perfect question.
PN2719
THE WITNESS: No.
PN2720
MR HARDIE: Thank you.
PN2721
THE DEPUTY PRESIDENT: The rest is for submissions.
PN2722
MR HARDIE: Now you would agree would you not that when someone - for someone to generally agree to something, the premise on what they agree about needs to be correct doesn't it?‑‑‑Yes.
PN2723
So were you ever asked by anyone what would happen if they voted the enterprise agreement down?‑‑‑I was not personally asked that.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2724
You weren't. Were you involved in the attempt to obtain a 2 per cent reduction in wages either earlier this year or late last year by variation to the current agreement?‑‑‑I was involved in that, yes. To the extent I was managing that function, yes.
PN2725
Can you tell us what the vote was in terms of the proposition to vary the enterprise agreement to reduce wages?‑‑‑I can't give you the exact numbers but the vote was no.
PN2726
Was it marginally no, or was it substantially no?‑‑‑It was - it was a no.
PN2727
Do you know the difference between marginally - - -?‑‑‑I don't know what your definition is to be able to clarify that.
PN2728
Was there one or two votes in it? Was there about - - -
PN2729
THE DEPUTY PRESIDENT: Percentages. Was it 10, 20, 30, 40, 50?‑‑‑It was about 60 per cent no.
PN2730
MR HARDIE: 60 per cent?‑‑‑Roughly.
PN2731
Thank you. So does it surprise you that within three months you return a result - reverse that result and get a yes vote by bringing in the new enterprise agreement that has even less a pay rate?‑‑‑I think there's two different issues.
PN2732
What do you mean?‑‑‑So one of them - one of them we're voting on a current agreement and this has been the new agreement.
PN2733
Well, what was the - you were one of the masterminds behind all this, so - - -
PN2734
MR FLETCHER: Is that a proposition?
PN2735
THE DEPUTY PRESIDENT: This is a chance here to blame someone else?‑‑‑That's right.
PN2736
MR FLETCHER: Is it a proposition or a question?
*** CORRINA TOLOMEI XXN MR HARDIE
PN2737
MR HARDIE: So what was the strategy - what was management's strategy in immediately going to negotiation of a new agreement when you couldn't get one with the existing enterprise agreement?
PN2738
MR FLETCHER: The premise of that question is - doesn't make sense. What was the strategy of getting a new agreement when you couldn't get an agreement with the existing workforce. There already is an agreement - - -
PN2739
THE DEPUTY PRESIDENT: I think the answer's in the question.
PN2740
MR FLETCHER: Yes.
PN2741
THE DEPUTY PRESIDENT: Because they couldn't get one, they tried it in a different way.
PN2742
MR HARDIE: Tried another approach.
PN2743
MR FLETCHER: I don't know that that's necessarily the answer.
PN2744
THE WITNESS: no.
PN2745
MR HARDIE: Well - - -
PN2746
THE DEPUTY PRESIDENT: Where are we going with this I suppose is there a - is there a submission - what would the submission be in relation to this?
PN2747
MR HARDIE: Well, I don't want to pre-empt it but to be frank, it's a grubby sordid affair that's occurred, where workers, 60 per cent of workers refused to have their wages cut. Within three months of starting a new process with new provisions for preserving rates which you're just virtually voting to have common law contracts. It's not a collective agreement at all. It's a collective agreement - so this - what I'm trying to ascertain from this witness is what was their strategy when they failed to get a variation in taking this approach, with this agreement with the - essentially having an agreement that produces a - we would say a lesser, far lesser terms and conditions than even they thought, but allows you to bring in contracts, and effectively had the contracts run the - you know, whose idea was it to do this? Was this your lawyer's idea or - who was behind - what was behind the strategy?
*** CORRINA TOLOMEI XXN MR HARDIE
PN2748
MR FLETCHER: Sorry, first of all it's sort of a - it's a stump speech not a submission. Secondly, - - -
PN2749
MR HARDIE: Well, I was asked to give an explanation.
PN2750
MR FLETCHER: But it makes a whole lot of assertions that tries to get in the mind of the company through the witness about what they intended. Now Ms Tolomei gave a very clear answer, she said the two things were separate and I'm not sure how sort of trying to make emotive submissions about, you know, a grand plan and masterminds and, you know, was this all because of your lawyers really progresses the matter at all. I mean the bottom line is that there was a looming expiry of an agreement and the company went through a renewal process.
PN2751
MR HARDIE: So whose idea was it to use the - after being unable to retain a wage reduction by conventional means - - -
PN2752
MR FLETCHER: Once again - - -
PN2753
THE DEPUTY PRESIDENT: Does it matter whose idea it was?
PN2754
MR FLETCHER: My concern's even more than that, Deputy President. Mr Hardie is putting to the witness whose idea was it, which presupposes that there was an idea in the first place. He's basically putting a conclusion to the witness and saying whose idea was that conclusion. That's a conclusion that he's putting to the witness as a foregone conclusion.
PN2755
MR HARDIE: I'll rephrase the question. What was the corporate motivation for the strategy that you embarked on sooner with the new process of enterprise bargaining following after a rejection of workers to a reduction in pay. What was the motivation for the strategy you undertook?‑‑‑So the strategy that we undertook with the renewal of the agreement, as I said before, had no connection to the variation action that we took earlier. We had a renewal that was coming up, we wanted to start the negotiations and the information briefings with our employees sooner than later, because we wanted to ensure that we had an in term agreement beyond the expiry date that it's now surpassed. So we wanted to start early. This has been our practice as well.
PN2756
Well what was the - - -?‑‑‑That is - that is the intent of that action.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2757
So what was the pressing need for it? What reference has the nominal expiry date got?‑‑‑Well it assists us in winning work.
PN2758
Correct me if I'm wrong but your intent was to drive down wages?‑‑‑No, that is incorrect.
PN2759
It wasn't?‑‑‑Absolutely not.
PN2760
Well what was - given that the enterprise agreement past it's nominal expiry date would not give any increase in wages, what was behind your urgency after failing to have the enterprise agreement varied. I put it to you the urgency was solely for the purposes of finding another way to drive down wages?
PN2761
THE DEPUTY PRESIDENT: Mr Hardy, you've asked the same question a couple of times now and I'm not sure the witness is going to change her answer, and I'm just conscious that if you ask the same question too many times you won't get the opportunity to ask any questions of Mr Dark.
PN2762
MR HARDIE: I'll move on. Now as I - yes, you said before that people have to be properly informed?‑‑‑Yes.
PN2763
About the terms of what they were being asked to - terms and conditions, in order to give their genuine consent or agreement to it. Can I take you to page number on the trial book that you have in front of you, 0605?‑‑‑Sorry, I hope you don't mind I'm standing now. I've got a sore back.
PN2764
THE DEPUTY PRESIDENT: Just as long as the monitors can pick you up on the mic?‑‑‑Yes.
PN2765
MR HARDIE: When you get there, let us know?‑‑‑Yes, thank you.
PN2766
Who's Rob Stevenson?‑‑‑So Rob Stevenson is our operations manager mining and is in charge of Mt Webber.
PN2767
Sandra Thorpe again is the - - -?‑‑‑Is manager of employee relations and industrial relations and she's part of my team.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2768
So would you agree that this email of 12 May describes - I mean you tender this as evidence to describe the consultation that was occurring with workers. Can you have a look at the last sentence on that page?‑‑‑Mm-hm.
PN2769
So I asked you before whether you'd given any information on what the impact of a no vote would be on employees?‑‑‑Yes.
PN2770
You said you hadn't given any response. Is this correct that - is this correct information from Mr Stevenson that telling his workers that a no vote would mean that there was no guarantees on preserved rate?‑‑‑I can only go by what's noted in that email.
PN2771
Well is that right or wrong?‑‑‑I can't - I can't comment on that.
PN2772
You can't or you won't?‑‑‑I can't comment on it.
PN2773
Well why can't you? You come before us as an expert and well qualified in people culture, you say you're experienced in industrial relations, you've signed forms, given stat decs saying there's genuine - you have genuine agreement, you've got genuine agreement through the vote. You've agreed that to get - to have - to receive genuine agreement people have to be provided with correct information. And all of a sudden you can't comment on that paragraph which I put to you is patently wrong.
PN2774
THE DEPUTY PRESIDENT: What was your question?
PN2775
MR FLETCHER: Good question.
PN2776
MR HARDIE: That question - that sentence gives incorrect information on the applicant's own evidence. It's evidence of incorrect information being given back to employees in Western Australia, entirely consistent with what our witnesses were saying they were picking up from people in Western Australia on the consequences of a no vote.
PN2777
THE DEPUTY PRESIDENT: That's a statement or a submission. A question is one that has a question mark at the end.
PN2778
MR HARDIE: Yes, I simply asked her whether that was right or wrong - - -
*** CORRINA TOLOMEI XXN MR HARDIE
PN2779
MR FLETCHER: And she says I can't comment.
PN2780
MR HARDIE: She said she can't comment.
PN2781
MR FLETCHER: I don't know, it's not my comment.
PN2782
MR HARDIE: Well, your Honour, that's being evasive. You should direct the answer to answer it.
PN2783
THE DEPUTY PRESIDENT: I'm not sure I can direct a witness to give legal advice, she's not a qualified legal practitioner?‑‑‑No.
PN2784
MR HARDIE: But isn't it true - isn't it - - -
PN2785
THE DEPUTY PRESIDENT: Because it's a question - it's a question of law you're asking - in effect that is a question of law, which is something you're going to give submissions which Mr Fletcher has a different view on and you have a different view on. So - - -
PN2786
MR HARDIE: Right.
PN2787
THE DEPUTY PRESIDENT: - - - even if those in the room can't agree on it, I'm not sure - - -
PN2788
MR HARDIE: Well, what would have happened - what would have happened if - what would have actually happened if a no vote had occurred. Would anyone have lost pay?‑‑‑No.
PN2789
So - - -?‑‑‑Let me clarify that. Let me clarify that. If we had had - we have a current agreement in place at the moment, the current terms and conditions in a contract, they're maintained at the moment. We would have maintained them even with the no vote.
PN2790
Yes.
PN2791
THE DEPUTY PRESIDENT: Well, you would have had to because the agreement was still live?‑‑‑That's right, that's right.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2792
MR FLETCHER: And the contract.
PN2793
MR HARDIE: You've got this senior bargaining agents telling staff in Western Australia - - -?‑‑‑Sorry, he's not a senior bargaining agent, he's a manager.
PN2794
Right?‑‑‑So I just want that clarified, yes.
PN2795
Right. Well, here you've got on your own evidence that you've submitted clear evidence that this information is wrong. That a no vote would not have - - -
PN2796
THE DEPUTY PRESIDENT: That's a question for submissions about whether that statement's wrong. The question for the witness is whether she told someone that, whether the staff told someone, whether she instructed someone to tell - that's evidentiary material. But at the moment what you're asking is a submission of law.
PN2797
MR HARDIE: Right. So were you ever asked what to tell people. See from your perspective over in WA, what was the main issue that people were concerned about?‑‑‑Well there was a number of issues that came up through the question.
PN2798
What was the main - pick one major one?‑‑‑Well it was quite varied, the number of issues. It was - there's numerous - I mean even the statement that you've referred to me here, 0605, there's five questions and I can't put note on which one has got the most weight. They'e numbered 1 to 5 but that's the order that, you know, if you have them as dot points. I can't comment on why they're put in order but they're varied. The questions I can't, I can't give you the answer of a weighting of which is most important.
PN2799
Right, fine. If you're not aware of what the burning question was. So I you were aware or your attention had been drawn to 0605, would you have signed off on the stat dec for genuine agreements?‑‑‑Yes.
PN2800
Have you had - have you pushed in Western Australia to have signed contracts?‑‑‑No, we have not pushed.
PN2801
Have all your staff signed contracts?‑‑‑No.
PN2802
How many haven't?‑‑‑I can't give you the exact numbers, I'm sorry.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2803
Is it a few?‑‑‑Quite substantially have, that's my understanding.
PN2804
So what percentage do you think would - approximately would have?‑‑‑Honestly I cannot tell you that but it is over 50 per cent.
PN2805
Why have they signed that? Have you asked them to sign those contracts?‑‑‑No.
PN2806
You haven't asked them to sign them?‑‑‑I have not personally asked them to sign the contracts, no.
PN2807
Has anyone from that - any of your direct reports - either way are you aware what actions if any have been taken to get people to sign contracts?‑‑‑All that I am aware of is that we issued contracts and then it's for the employee to decide whether or not they wish to sign it.
PN2808
I put it to you that they have been told that unless they - they needed to sign it before the 31st - by 31 August at the latest, in order to preserve their pay and conditions, because the nominal expiry date of the current enterprise agreement was reached by that date. Is that true?‑‑‑I can only comment what has been noted in their letters.
PN2809
Now in your position did you have - what computer resources did you give to provide to these people that were informally representing others, in order to facilitate communication?‑‑‑So on our sites we have computers available within their crib rooms, and also if it was on request we would have allowed them to have access to computers in other offices if required.
PN2810
So I take it then that what would have been your position if those emails had been - those computers had been used to broadcast information to other workers, promoting a no vote. Would you have been happy for that - for the computers to be used for that?‑‑‑Personally, I wouldn't have been very happy with it, no.
PN2811
You wouldn't?‑‑‑No.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2812
Why not?‑‑‑Well does that fall against my feeling that it's in good faith. I think we've demonstrated to - well I think we've demonstrated in our submission that we've been transparent and we're giving all information to the employees, and if they've got issues they can raise them in various avenues they feel comfortable with. The fact that employees still are needing to communicate that sort of I would say tone of communication, it's quite disappointing to tell you the truth.
PN2813
What, so if they disagree, if they promoted a no vote, in your view that would disappoint you and show a bad attitude. Is that what you're saying?‑‑‑In the sense that we were trying to have discussions with employees of any concerns, if they came to us and said we need to have - you know, we're waiting to run a no vote well let's have a discussion about that. That's how we operate.
PN2814
What about someone that was - had been receiving FAQs from the organisation that kept on scurrying around certain issues, and got outside information that brought the employees - the employer's version - brought it into question on the issue of contracts?‑‑‑Yes.
PN2815
Are you saying that broadcasting that to fellow employees is an act of bad faith?‑‑‑Look, I can't say if employees - if employees wish to send things around between each other, that's fine.
PN2816
You're happy for them to use - you're happy for them to use the work computers?‑‑‑Ensuring that it falls within our charter and it falls within other requirements to ensure that it's nothing discriminatory or anything like that, yes. We've not disciplined anyone on that as well.
PN2817
Well you're only talking about Western Australia aren't you?‑‑‑No, I'm not. I need to - can I just clarify for the record I have national coverage over all operations, so you might refer to me as having WA, I live in Western Australia, but I am fully aware and have coverage over all operations. Can I just make that really clear.
PN2818
Are you aware that there's been evidence provided by Mr Wake that he asked a question from the AMWU about the status of common law contracts and the ability to enforce them. When he got that advice, an email back from his union official, he broadcast that to other bargaining agents in South Australia and was shattered by his supervisor for doing it as an inappropriate use - - -
PN2819
MR FLETCHER: What does shattered by his supervisor mean? I mean come on.
PN2820
MR HARDIE: Right.
PN2821
MR FLETCHER: Ms Tolomei has given clear, very clear evidence that there was no disciplinary action taken anywhere in relation to communications. She's personally a bit disappointed because she thought that people might do it - you know, raise their objections in the open. But these questions have been put, she's answered them. I don't understand why we're going around in circles.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2822
THE DEPUTY PRESIDENT: I think we've actually got to a specific question now because it's evidence that Mr Wake gave directly about whether - and he used the word disciplined, I think, when - - -
PN2823
MR FLETCHER: No, he didn't. He said "I wasn't disciplined".
PN2824
THE DEPUTY PRESIDENT: Well, after I questioned him on that he corrected it and said he wasn't disciplined. I actually asked him about that. Originally it started off as he's been disciplined and when I put the question to him he said no, actually there was no disciplinary action taken against me.
PN2825
MR FLETCHER: That's right.
PN2826
THE DEPUTY PRESIDENT: But that was after I'd questioned him. His original evidence was that he had been spoken to by his - I think he actually used the word disciplined, that's why I clarified it. But the evidence - - -
PN2827
MR FLETCHER: No, I thought he said spoken to and I thought you clarified, but I could be wrong.
PN2828
THE DEPUTY PRESIDENT: Yes, I think that's why - - -
PN2829
MR FLETCHER: It's been a long two days.
PN2830
THE DEPUTY PRESIDENT: I think that's why I clarified it.
PN2831
MR FLETCHER: I remember the clarification clearly.
PN2832
THE DEPUTY PRESIDENT: So that is one example and I think he's putting that - the evidence - questioned the witness when she says no action was taken because Mr Wake's evidence was that he was counselled in some way.
PN2833
MR FLETCHER: I just don't want through use of, you know, a pejorative expression like he was shattered to connote that there was some sort of discipline when there wasn't - when the evidence of the witness was that there wasn't discipline, and the evidence of this witness is that there wasn't any discipline. Was there a conversation? Yes. But shattered I don't think is appropriate.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2834
MR HARDIE: Well, it's in the eye of the beholder, your Honour, but - - -
PN2835
THE DEPUTY PRESIDENT: I think as counsel he's allowed to choose how he puts it. The question is do you need to go there again?
PN2836
MR HARDIE: Let me - - -
PN2837
THE DEPUTY PRESIDENT: Are you proposing that his evidence that it wasn't disciplinary consequences is wrong. Is that why you're putting it to Ms Tolomei?
PN2838
MR HARDIE: No, no, I'm just giving her an opportunity to properly rebut his evidence as I'm meant to do, because she's made the statement there was no disciplinary action taken. Even though she has given, I might remind your Honour, a clear - displayed a clear paradigm that use of computers that are not in the corporate interest is disappointing and shows a bad attitude.
PN2839
MR FLETCHER: She didn't say - she didn't say bad attitude.
PN2840
MR HARDIE: Well, sit down counsellor. I've got the floor. So she has expressed that view and then says - but then says well, we wouldn't have - we wouldn't have done anything anyway if someone - - -
PN2841
THE DEPUTY PRESIDENT: Yes, and she gave evidence, she said they wouldn't have done anything and your witness' evidence was that he wasn't disciplined. So I'm not quite sure where we're going with it.
PN2842
MR HARDIE: What if I told you that Mr Ryan's evidence was that his manager spoke to him about issuing or broadcasting his bargaining representative's communication to him on the enforceability of common law contracts. It was brought to his attention and his evidence was that he was forced to explain himself and convince his supervisor that it wasn't inappropriate use of a computer. Do you think his manager was right to intervene when he became aware that that email had been issued?‑‑‑So is your question - - -
PN2843
The question is do you think the manager was right to intervene, to say I've noticed this is happening, I've got a problem. We need to discuss it. His evidence is that that manger went - escalated and had to go and see another manager.
PN2844
THE DEPUTY PRESIDENT: They came back and said no, it's okay.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2845
MR HARDIE: They came back and said they'd decided not to take any disciplinary action. The question I'm asking is very simple. Do you support the first level manager's intervention because a bargaining agent was sending off information that he had received from his bargaining agent, which happened to be his union and broadcasting it around the South Australian sites?‑‑‑No, I don't agree with the manager having a chat to him about it.
PN2846
If that had come to your attention - well, were you aware of that situation?‑‑‑Yes, I was.
PN2847
So what did you do about it when you found out about it?‑‑‑In what sense?
PN2848
Well did you respond? You just said you didn't approve of the manager's action - - -?‑‑‑I found out about it after the fact of how it was managed and I was happy with it and didn't have to take any further action.
PN2849
So what did you convey to the manager involved. Who was that by the way?‑‑‑I don't have - sorry, I don't have Ryan Wake's statement in front of me but I can refer to - it was probably Ben Dyer, the maintenance superintendent but I'd like it checked.
PN2850
We're on the same page. So what did you say to Ben?‑‑‑I didn't personally speak to Ben. As I said I found out after the fact and I was happy with how it was managed. So there was no reason for me to ring Ben Dyer and actually say you did a good job or you didn't do a good job. His manager and how they handled that situation, I was happy with.
PN2851
But you said you didn't agree with the intervention?‑‑‑I didn't agree with the intervention of - I didn't agree with how Ben approached him and spoke to him about it but I was happy with the fact that they didn't discipline him over it.
PN2852
But you did nothing to correct Ben's inappropriate behaviour, did you?‑‑‑Not personally, no.
PN2853
Well did anyone else? Did you direct someone else to?‑‑‑I'm not aware, no. I can't recall. I can't recall.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2854
So as a person in your position oversighting the employer's stat dec that there's been genuine agreement and so forth, what - sorry, I'll rephrase that. As the senior HR/IR executive, although you say you didn't respond to the question I'm going to ask you now from a worker, what would you have said to me if as a worker I said to you I'm concerned with this combination of contract and enterprise agreement - - -
PN2855
MR FLETCHER: Pretty hypothetical question.
PN2856
MR HARDIE: Well, it's not hypothetical because it was actually the main thing that people were asking. It was the subject of the communication that was sent out and this person has signed the stat dec. So I'm talking about clearly a key issue and how she would have explained it given that she's already made - - -
PN2857
MR FLETCHER: Either she did explain it or she didn't explain it.
PN2858
THE DEPUTY PRESIDENT: Yes, maybe we ask her did she explain it or didn't she explain it because otherwise evidence is irrelevant.
PN2859
MR HARDIE: Well, I would have thought it was useful to - I asked her whether she answered that question directly to any employee. She's told us about FAQs and how wonderful they are.
PN2860
THE DEPUTY PRESIDENT: Did you provide that answer? Were you asked by any of the employees directly?‑‑‑No.
PN2861
MR HARDIE: Well, what if I said to you that there's been evidence that people were told by representatives of management that if they voted the agreement down they'd go back onto the award. If they voted the agreement up, they would stay on their preserved levels and that would be protected - that would preserve and protect those conditions going forward, the same way as if it was in an enterprise agreement. Would that surprise you that that's what the evidence is showing people were told?‑‑‑I think the second point on the preservation I think we've noted in contracts that that is preserved and it is portable, yes.
PN2862
So it's your evidence that - it's your evidence as senior HR/IR executive, it's your clear belief that common law contracts are just as easy to enforce as terms and conditions in an enterprise agreement?‑‑‑I think they are.
PN2863
I have no further questions.
PN2864
THE DEPUTY PRESIDENT: Mr Hanson.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2865
MR HANSON: I have no questions.
PN2866
THE DEPUTY PRESIDENT: You're still with us.
PN2867
MR HANSON: Yes, I am still with you. Here I am.
PN2868
THE WITNESS: An active listener, thank you.
PN2869
MR FLETCHER: Your Honour I'll be - sorry, Deputy President, I'm in your hands about a lunch break. I do need another pit stop, I've been drinking a lot of water during cross-examination. Did you - - -
PN2870
THE DEPUTY PRESIDENT: I'm inclined towards getting the parties to file written closing submissions, so I just need to make sure that we're going to have enough time for Mr Dark. So if we have enough time for Mr Dark you can have a lunch break, otherwise we might have to bat on. Do we have enough time for Mr Dark? Do you propose to lead much in-chief?
PN2871
MR FLETCHER: Not a huge amount and we're happy with the written submissions for us. The only question about the written submissions is - - -
PN2872
THE DEPUTY PRESIDENT: No new materials in the written submissions. I'll be clear. No new material. As long as we're all clear about that, nothing more.
PN2873
MR FLETCHER: It's probably more relevant for us in terms of just getting a decision and not putting you under undue stress in terms of your goal for getting a decision out. Would it be a relatively tight timeframe for filing written submissions?
PN2874
THE DEPUTY PRESIDENT: It would be relatively tight but I will be able to get a decision out quicker if the closing submissions are well structured and useful. So I prefer you have an extra week and make it useful than to have it in two days and - - -
PN2875
MR FLETCHER: Deal with splodge.
PN2876
THE DEPUTY PRESIDENT: Yes.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2877
MR FLETCHER: I think I'm borrowing a Boncardo-ism there. But on that basis, we could have a short lunch break. I think we'd clearly get through Mr - if we come back at one, I think we can get Mr Dark done between one and three very easily.
PN2878
THE DEPUTY PRESIDENT: Do we want to have a full hour because by the time you've got something to eat and been to the bathroom and got back in here - - -
PN2879
MR FLETCHER: I think - I reckon my examination, based on Mr Ruwiza and Ms Tolomei, similar sort of examination-in-chief, so I would think that if we're back at 20 past 1, I'd be finished well before two, or sorry well - I'd say probably even 20 to 2, and then that would leave the rest of the time for cross-examination.
PN2880
THE DEPUTY PRESIDENT: Right. Does that work for everybody else?
PN2881
MR BONCARDO: I don't have any questions for Mr Dark.
PN2882
THE DEPUTY PRESIDENT: Right.
PN2883
MR THOMAS: I have a few questions, your Honour, but depending on what happens with in-chief and how he answers mine it will be relatively short.
PN2884
THE DEPUTY PRESIDENT: Fairly quick.
PN2885
MR HARDIE: I have no questions for Mr - I have no answers for him either but - - -
PN2886
THE DEPUTY PRESIDENT: Either. Even posed as questions.
PN2887
MR HARDIE: That's right. So I don't intend to cross-examine Mr Dark.
PN2888
MR FLETCHER: One important point though is I haven't re-examined Ms Tolomei.
PN2889
THE DEPUTY PRESIDENT: Yes.
*** CORRINA TOLOMEI XXN MR HARDIE
PN2890
THE WITNESS: Thank you.
PN2891
MR FLETCHER: Which I could probably do very shortly. I mean that's not going to be - unless you want her excused and come back and we can finish that off and then - - -
PN2892
MR BONCARDO: Let's do that.
THE DEPUTY PRESIDENT: Shall we do that? Let's do that. Let's get the re-examination done and then we can have a decent lunch break and then come back and do Mr Dark and any housekeeping. I'd rather do that, rather than do it in a rush. Right.
RE-EXAMINATION BY MR FLETCHER [12.24 PM]
PN2894
MR FLETCHER: Ms Tolomei, you were taken to the statutory declaration in the form 17 that you filed?‑‑‑Yes.
PN2895
You were asked some questions about the - various questions about the statutory declaration. One of the questions that you responded to was in relation to the application - sorry, yes the - where the agreement would apply and the answer that you gave there and I think the answer - can you remember the answer that you gave as to the geographical location?‑‑‑Yes, yes.
PN2896
Can you recall the answer that you gave there?‑‑‑The answer that I gave there was that we have noted where our current operations are.
PN2897
So it was a reference to current operations?‑‑‑Yes.
PN2898
Is that the general approach that you took with your statutory declaration as in were you answering the questions in the context of your current operations?‑‑‑Yes.
PN2899
And your current work practices?‑‑‑Yes.
PN2900
In relation to the better off overall test - sorry, the - in relation to were any award terms not better off, in terms of that question, did you take advice from your internal and external advisors before answering that question?‑‑‑Yes.
*** CORRINA TOLOMEI RXN MR FLETCHER
PN2901
You're not or how close would you say you are to the detail of how the agreement works in practice?‑‑‑On a day to day basis, not into that detail.
PN2902
So you rely on those external advisors?‑‑‑Absolutely.
PN2903
Did you rely on the external advisors in giving those answers?‑‑‑Absolutely.
PN2904
Thank you. You were taken to various aspects of the incorporation of the coal award and I just wanted to give you an opportunity to clarify some evidence. I may have misheard what you said but you were asked whether the intention is that the incorporated award terms will evolve over time and change and increase as the incorporated award increases. Now did you - I think you may have said no when that question was put to you. Did you want an opportunity to clarify the company's position on how the agreement would operate in that sense?‑‑‑So the agreement would operate, thank you. The agreement would operate in the sense of should an award condition or rate surpass what is currently in the agreement - - -
PN2905
Yes?‑‑‑That we will honour that award.
PN2906
In the agreement?‑‑‑In the agreement. Absolutely.
PN2907
That's the intention?‑‑‑Absolutely.
PN2908
There's a reference in the agreement - in fact I can take you to it?‑‑‑Thank you.
PN2909
To the defined award term - sorry the defined term in the agreement. So if I can take you to clause - - -?‑‑‑Are you in the book?
PN2910
Yes, if you can go - probably the quickest way to get you there is in the book, page 100?‑‑‑Yes.
PN2911
You'll see - actually yes, page 100. You'll see there's a defined term coal award?‑‑‑Yes.
PN2912
And a defined term over the page, mining award, and they refer to as at a defined term commencement date. Can you see that?‑‑‑Yes.
*** CORRINA TOLOMEI RXN MR FLETCHER
PN2913
What is your understanding of the intention of the agreement insofar as it relates to the reference to commencement date.
PN2914
MR BONCARDO: I object to the question. The agreement speaks for itself. It is a document that your Honour will have to interpret. I'm not sure what the opinion of a non-lawyer about the impact or the definition is going to do in terms of assisting.
PN2915
THE DEPUTY PRESIDENT: Is she not being asked to give evidence as to her intention of the bargaining party with that clause?
PN2916
MR BONCARDO: Yes, and an employer's intention about how it applies and everything is completely irrelevant to the issues that are before your Honour with respect to the BOOT test.
PN2917
MR FLETCHER: I would say not when it comes to interpreting the agreement down the track.
PN2918
THE DEPUTY PRESIDENT: Yes. Yes, because you interpret it in terms of what the parties have intended.
PN2919
MR BONCARDO: The agreement has a meaning which is achieved by a process of construction. That is a legal question. An employer intends to do - - -
PN2920
THE DEPUTY PRESIDENT: Part of that construction would be evidence from witnesses who were bargaining parties.
PN2921
MR BONCARDO: No.
PN2922
MR HARDIE: No.
PN2923
MR BONCARDO: That evidence is wholly inadmissible and as my friend reminds me of the Full Bench decision of Golden Cockerel says - - -
PN2924
MR FLETCHER: No, it doesn't.
*** CORRINA TOLOMEI RXN MR FLETCHER
PN2925
MR BONCARDO: - - - applying to contracts, the interpretation of contracts are relevant in terms of determining the meaning of words and the subjective views of individuals as to what words mean are entirely irrelevant and inadmissible. Your Honour will remember Codelfa Constructions. Sir Anthony Mason says there, objective background facts are relevant and admissible. Subjective impressions of people involved in the process are highly inadmissible.
PN2926
MR FLETCHER: I would submit that that's not what Golden Cockerel says and what Golden Cockerel actually talks about is the intentions of the parties as being relevant if it goes to the interpretation of the clause. It's not the Codelfa test.
PN2927
MR BONCARDO: It is the Codelfa test.
PN2928
MR FLETCHER: It's not the Codelfa test and look, I think it's delightful. I'm really pleased. This is the first time a union has ever that argument and I just hope - I'm going to get the transcript and I'm going to frame it because when it comes to interpretation down the track, it's always about the subjective intentions and look, I don't - I'm in the Deputy President's hands.
PN2929
THE DEPUTY PRESIDENT: Just ask the question and I'll give it the appropriate weight.
PN2930
MR HARDIE: Your Honour, I have some input into this as well. The Cockerel decision says that interpretation - that extrinsic evidence can be used to look at - to make the initial interpretation to see whether there's any ambiguity but it can only be evidence of common intention. So the only intention that is allowed in that first test of making the ambiguity - of assessing the ambiguity, because your Honour will recall that it's only if the court says that - - -
PN2931
THE DEPUTY PRESIDENT: The clause is ambiguous.
PN2932
MR HARDIE: - - - there is ambiguity, what my friend is saying is yes, the extrinsic evidence can be now used to determine the ambiguity but the very big rider on that it has to be common intention. So there has to be evidence submitted to a tribunal or court that shows common intention and I don't think this witness has got the ability to talk about common intention.
*** CORRINA TOLOMEI RXN MR FLETCHER
PN2933
MR FLETCHER: Deputy President, I'm not going to press it. I think I'll make my submission but probably where it goes to is the reasonableness of an undertaking. If an undertaking is needed to fix it - sorry, if you're persuaded that there's a problem then the undertaking can presumably fix that. It's clearly not a wildly variant ambiguity because it's what was intended. If I can ask the question for that purpose then. What was the intention of the reference to commencement date in that defined term?‑‑‑Commencement date is the seven days after the commencement of this agreement.
PN2934
Yes, but that doesn't limit the fact that you want the agreement to incorporate the award terms, as they evolve overtime?‑‑‑Yes.
PN2935
Thank you.
PN2936
THE DEPUTY PRESIDENT: Whether that's a fact of law is a question for determination. That's just the witness' view.
PN2937
MR THOMAS: It's an extraordinary outcome. I mean if an agreement is an agreement it applies as at - the award applies as at a certain date, is what it says here because it's got the commencement date. Commencement date as to the meaning given in clause 3. Clause 3 says the agreement applies and covers seven days after the approval, therefore it's the award as at seven days after the approval. Not the award - - -
PN2938
THE DEPUTY PRESIDENT: Not as varied.
PN2939
MR THOMAS: - - - in six months' time or eight months or nine months. It's fairly clear on its face to us, your Honour, and that's what we've argued and I guess what we'll put in submissions.
PN2940
MR FLETCHER: I should just note that if that interpretation's right based on the application of test time which has been accepted, and look I'll save it for submission but we're not - - -
PN2941
THE DEPUTY PRESIDENT: You'd give an undertaking to say that it means as varied. Is that what you're saying?
PN2942
MR FLETCHER: Happy to do that but that's only in the absolute - only if it's absolutely necessary. We think it actually stands up on its own if the union's interpretation is right. I'm just surprised the union's following an interpretation that makes people worse off but I can understand the context of the first issue which is, is the agreement capable of being approved.
PN2943
THE DEPUTY PRESIDENT: Reached.
*** CORRINA TOLOMEI RXN MR FLETCHER
PN2944
MR FLETCHER: Yes. Then it makes sense why they're making the submission but I just think in the interests of getting to an outcome, that it's an issue that can be fixed with a submission in the - in the event, and that's a qualification. In the event that you do think it's a problem, because my submissions will be that it's not a problem.
PN2945
THE DEPUTY PRESIDENT: Is there anything - - -
PN2946
MR BONCARDO: I think I understand Mr Fletcher's position.
PN2947
MR FLETCHER: Sorry?
PN2948
MR BONCARDO: I think I understand what Mr Fletcher's position is, your Honour, after that - - -
PN2949
THE DEPUTY PRESIDENT: Mr Boncardo's looking like he got all the cream.
PN2950
MR BONCARDO: I've got to get chocolates.
PN2951
MR FLETCHER: Fair enough. No further questions.
THE DEPUTY PRESIDENT: Right. So what we'll do is we'll break until - we'll break for an hour, half past.
<THE WITNESS WITHDREW [12.36 PM]
LUNCHEON ADJOURNMENT [12.36 PM]
RESUMED [1.33 PM]
PN2953
THE DEPUTY PRESIDENT: Mr Fletcher?
PN2954
MR FLETCHER: Deputy President, I think we're in the premiership - no, not the premiership quarter, it's the last ‑ ‑ ‑
PN2955
MR HARDIE: What do Western Australians know about the premiership?
*** CORRINA TOLOMEI RXN MR FLETCHER
PN2956
MR FLETCHER: It's the bit where Hawthorn normally wins. There we go. A bit of ‑ ‑ ‑
PN2957
THE DEPUTY PRESIDENT: You've got two hours and then I'm leaving.
MR FLETCHER: A bit of levity to kick off the afternoon, Deputy President. I would like to call Mr Greg Dark. He's in the room, I believe. He's only just arrived in the room, I should point out for the transcript.
<GREGORY JOHN DARK, SWORN [1.34 PM]
EXAMINATION-IN-CHIEF BY MR FLETCHER [1.34 PM]
PN2959
THE DEPUTY PRESIDENT: Okay, sit down.
PN2960
MR FLETCHER: I'm just at a bit of a disadvantage, Deputy President. I've just noticed that Mr Dark doesn't appear to have a copy of his statement?‑‑‑No.
PN2961
Which shows how confident he is in providing evidence.
PN2962
THE DEPUTY PRESIDENT: My associate has got one if that's of assistance. It's okay we've given him one.
PN2963
MR FLETCHER: And we'll provide him a copy of it too if he needs it.
PN2964
Mr Dark, is that a true and correct copy of the statement that you filed in these proceedings?‑‑‑Yes, it is.
PN2965
For the record can you state your name?‑‑‑Gregory John Dark.
PN2966
Can you state your current occupation?‑‑‑General manager, mining operations.
PN2967
And can you tell the commission what your occupation was at the time of these enterprise bargaining process that's been referred to - sorry, the enterprise bargaining process that occurred between 30 March and the completion of a vote on 15 June?‑‑‑My position at that time was operations manager, Western Australia.
*** GREGORY JOHN DARK XN MR FLETCHER
PN2968
Thank you. During that time did you have - you had overall responsibility for enterprise bargaining involving how many employees?‑‑‑462.
PN2969
Thank you. Can you in your own words describe to the commission the consultation and bargaining process that you went through on site and that you were involved in in your - in the role that you've just described.
PN2970
MR BONCARDO: I object to the question, perhaps just so my objection can be noted.
PN2971
THE DEPUTY PRESIDENT: Is there some KPI?
PN2972
MR FLETCHER: I think it's brilliantly efficient. I think we've got this down to a fine art.
PN2973
THE DEPUTY PRESIDENT: Every hour and a half he needs to ‑ ‑ ‑
PN2974
MR FLETCHER: It's like the dead man switch. You've got to keep ‑ ‑ ‑
PN2975
THE DEPUTY PRESIDENT: He's still listening.
PN2976
MR BONCARDO: It's evidence that should have been led in chief.
PN2977
MR FLETCHER: Do you want me to repeat the question, Mr Dark?‑‑‑No, that's fine, Mr Fletcher.
PN2978
THE DEPUTY PRESIDENT: Could you repeat it for the tribunal's benefit?
PN2979
MR FLETCHER: Yes, I can. Mr Dark, in your role that you referred to previously you have responsibility for how many employees in Western Australia?‑‑‑462.
PN2980
And you were responsible and involved in the process of enterprise bargaining and consultation with those employees?‑‑‑Yes, correct.
*** GREGORY JOHN DARK XN MR FLETCHER
PN2981
Can you please describe for the benefit of the - can you please describe for the tribunal the bargaining and consultation process you went through with those employees between 30 March and the conclusion and successful yes vote for the agreement?‑‑‑The process began on 31 March. We ran a seven‑day roll‑out of the proposed agreement. At those meetings were the executive general manager for construction and the executive general manager for project services and the project manager at the time and part of his leadership group. As I said, those roll‑out sessions lasted a week and the follow‑up first consultation meeting was on 19 April, the second consultation meeting was on 3 May and they were followed by three further meetings which were limited attendances by a number of the consultation committee but not necessarily the entire committee. These were also followed up - the leadership team, namely the superintendents and the project manager, followed up on a daily basis with one on one discussions with randomly picked employees to find out if they had any more concerns to raise. There was also a requirement for supervisors and superintendents to address the pre‑shift information sessions at the beginning of every shift to again inquire whether any person had any other queries or concerns that they can raise.
PN2982
The consultative committees that you were personally involved in, how many members did you have on that committee?‑‑‑I'm not sure, but I think it was 17.
PN2983
What was the process for - or how did you go about constituting that consultative committee?‑‑‑We offered - it was at the roll‑out procedure in late March, early April. We offered each crew the opportunity to nominate or elect a representative. The project being quite large, there are quite a number of crews, hence we ended up with 17 nominations.
PN2984
Throughout the negotiation process did you ever hear any person involved in bargaining complain or relay a complaint about the - excuse me. During the process did you at any point hear or have relayed a complaint from an employee that they were being forced to vote yes for the agreement?‑‑‑No.
PN2985
Did you at any time hear a complaint directly or referred that an employee was scared that if they didn't vote yes that there would be adverse repercussions?‑‑‑No.
PN2986
Can you tell the commission if at any time - or, sorry, firstly can you tell the commission whether you allowed employees to ask questions about the terms and conditions that were in the agreement and the proposed contract?‑‑‑It's fair to say that from the outset we had one employee in the first meeting that had 32 questions and he was allowed to ask all 32. That meeting went on for some three and a half hours, so I think that gives you an idea of the number of questions that we answered.
PN2987
And that type of process continued throughout?‑‑‑That was the process and that and that was a round table conference.
*** GREGORY JOHN DARK XN MR FLETCHER
PN2988
Thank you. In the course of those questions, not necessarily on that one that you referred to, on that occasion that you referred to, but in the course of raising questions and issues about the agreement did anyone - can you describe any occasion when an employee raised the issue of being put back onto award conditions if they voted no to the agreement?‑‑‑Yes, there were two occasions. An employee from the ore handling plant was quite adamant that if the agreement was passed then they would be placed back on the award. That was countered by another employee, a fitter from the haulage workshop, who cited his knowledge of the Collie situation.
PN2989
By the Collie situation what are you referring to there?‑‑‑His knowledge was that Collie had been in protracted negotiations for some time.
PN2990
By Collie are you referring to Griffin Coal?‑‑‑Griffin Coal.
PN2991
Yes, and his knowledge was that the company had reverted to asking the commission to rule on the EA to have it - terminated, I'd imagine the word is.
PN2992
Were you asked what BGC would do?‑‑‑We were asked. I was asked directly and my comment to the committee was that that is not how BGC does business. That is not our intention, and if it got to the point where it was a no vote then we'd return to the table until we found common ground.
PN2993
Thank you. You have personal day‑to‑day involvement with - you've given evidence that you have personal day‑to‑day involvement with the bargaining reps. Is that correct?‑‑‑That's correct.
PN2994
A number of the bargaining reps were permitted to, or were invited - sorry, I'll rephrase that. A number of the bargaining reps were involved in discussions on the telephone with their colleagues in South Australia. Can you describe those discussions and the outcome of those discussions after they'd occurred?‑‑‑The comment that was forwarded through to me from my project manager at the conclusion of that was that there was no point in having any more telephone hook‑ups because it was apparent that South Australia were going to vote no and had no inclination to consider the WA position.
PN2995
The WA position, is that a reference to the WA employees?‑‑‑The WA employees, yes. They had indicated from the outset that there was a very keen tendency to sign and - to vote yes and to sign the contracts.
*** GREGORY JOHN DARK XN MR FLETCHER
PN2996
So they were supportive?‑‑‑They were very supportive.
PN2997
And the source of the disagreement with the South Australians was?‑‑‑The source was the telephone conversation hook‑up and the view from the South Australian people that the enterprise agreement shouldn't be voted for.
PN2998
THE DEPUTY PRESIDENT: You weren't present at the telephone hook‑up?‑‑‑No, I wasn't; no.
PN2999
Was your project manager present?‑‑‑At the first one, yes, the second one, no.
PN3000
So where did he get his knowledge from?‑‑‑From the people that were involved in that telephone hook‑up.
PN3001
Okay. So your evidence is the evidence of what he told you of what he was told by ‑ ‑ ‑?‑‑‑That's correct.
PN3002
What was your overall view of the level of support for the agreement in Western Australia?‑‑‑My view from the outset was very positive. Towards the voting period, as it got closer, I actually made the statement that I was anticipating a 90 per cent roll‑out with about an 85 per cent yes vote.
PN3003
And why is that?‑‑‑We've worked with those people in WA for a long, long time. They've worked for BGC for a long, long time. I had the view that they had no reason to see anything in the EA other than what it was.
PN3004
Thank you. Did anyone - or can you describe for the commission any situation where a WA employee was unhappy with the answers that were given in the consultation process?‑‑‑Yes, we had one particular gentleman, as I said, that worked at the OHP, the ore handling plant, that was quite vocal, anti the EA from the outset.
PN3005
Did his view change?‑‑‑I don't think so, no.
PN3006
What was your - what is your view about the fact that he had a differing view?‑‑‑He had been, I suppose, unfairly treated in the past. He had an issue with being moved from one business unit across to the other unit and taking a pay cut and then not being afforded the opportunity to go back to that business unit and I suspect that he was disgruntled from the outset from that.
*** GREGORY JOHN DARK XN MR FLETCHER
PN3007
In the course of the enterprise bargaining process did you at any stage make a threat to any of the employees that if they didn't vote for the agreement that - if they didn't vote yes for the agreement there would be adverse consequences?‑‑‑No, never.
PN3008
Did you - or can you describe any occasion where you may have promised an individual employee some kind of benefit in exchange for voting yes in favour of the agreement?‑‑‑No, never.
PN3009
Did you at any stage make a comment that was not true in your mind or intended to make an employee vote yes for the agreement by fooling them about what the outcome of the agreement would be?‑‑‑No, never.
PN3010
Did any issues in relation to any of those three matters get escalated to you as the person with overall responsibility for the enterprise bargaining?‑‑‑I'm unaware of any occasion, no.
Thank you. Okay, no further questions.
CROSS-EXAMINATION BY MR THOMAS [1.49 PM]
PN3012
MR THOMAS: Mr Dark, can I take you to paragraphs 4 and 5 of your statement and just ask you to explain where you worked in those coal mining operations in Queensland and New South Wales?‑‑‑Certainly. I started my career as a plant operator at Drayton Coal in the Hunter Valley. I then moved to an open‑cut examiner's position with Coal and Allied at Hunter Valley Number 1 and then I moved on to Queensland into hard rock then back to coal in Indonesia then coal in Stockton in New Zealand.
PN3013
Okay, thank you. In point 11 you refer to BGC at the pre-shift meeting involved in coal mining operations in the mid 2000s with an open‑cut contract in the Bowen Basin. Could you explain to me what that was?‑‑‑That was a small contract in operation for Hail Creek in the Bowen Basin just out of Mackay.
PN3014
Was that the removal of the overburden?‑‑‑Yes.
PN3015
Yes, okay. Thank you. Now, I just want to take you in general terms to what the - from paragraphs 12 on, and in particular the difference in the mining processes between coal mining and hard rock mining. These comments that you make in here, you wouldn't apply them to underground mining, would you?‑‑‑No.
*** GREGORY JOHN DARK XXN MR THOMAS
PN3016
No. So it's about open-cut mining?‑‑‑Yes.
PN3017
Yes, okay. Thank you. From an open-cut do you recognise there may be some differences in occupational health and safety or general operation provisions?‑‑‑Yes. No two jurisdictions have the same requirements or expectations for safety and that.
PN3018
Yes. I mean, open‑cut coal mines regardless would have check inspectors, as you would be aware of?‑‑‑In Queensland particularly, yes.
PN3019
And New South Wales?‑‑‑New South Wales, yes.
PN3020
Yes, who are legislatively appointed OHS ‑ ‑ ‑?‑‑‑Yes.
PN3021
Elected by the (indistinct). Your Honour, that's all I have.
PN3022
THE DEPUTY PRESIDENT: Thank you. I think ‑ ‑ ‑
MR BONCARDO: I don't have any questions for Mr Dark, your Honour.
CROSS-EXAMINATION BY MR HARDIE [1.52 PM]
PN3024
MR HARDIE: Mr Dark, how were bargaining agents selected or - yes, selected in Western Australia, employee bargaining agents?‑‑‑They were nominated by their particular crews.
PN3025
Were there any union bargaining agents involved in the negotiations?‑‑‑I wouldn't know about that. I don't know who on that site is in the union and who's not, but no, they were ‑ ‑ ‑
PN3026
Well, you didn't invite any union participation, did you?‑‑‑No.
PN3027
When you use the word "roll‑out" what do you mean?‑‑‑When we developed the enterprise agreement in its first stage we went out to site and we presented the format and the purpose, the strategy and that, to every employee on site.
PN3028
How many redundancies have occurred in the last three months in Western Australia?‑‑‑In BGC or in Western Australia?
*** GREGORY JOHN DARK XXN MR HARDIE
PN3029
In Western Australia?‑‑‑I'm unsure.
PN3030
Have there been any?‑‑‑I'm unsure.
PN3031
Now, you said that, I think, and correct me if I'm wrong - my friend asked you questions about how you dealt with people coming on and off shifts and the consultative processes and you said you had randomly picked out people at the beginning of shifts for discussions. How did you randomly pick out people?‑‑‑Exactly that, randomly. The intention was to avoid the leadership group selecting people that they thought or knew would vote either way .
PN3032
So what, did you have a X lotto wheel that you've rolled around and pulled out marbles or ‑ ‑ ‑?‑‑‑No.
PN3033
What did you do?‑‑‑No. No, they just waited until the guys walked out of the crib hut and said, "Excuse me, could I talk to you for a moment."
PN3034
Okay, and so that discussion was one on one with who, a manager?‑‑‑Members of the leadership group from supervisor up to the project manager.
PN3035
Okay. So they selected them?‑‑‑Yes.
PN3036
Well, if you select people that's not random.
PN3037
MR FLETCHER: Is that a question or a statement?
PN3038
MR HARDIE: Is it? I made it a question?‑‑‑I would say it's random.
PN3039
Okay. Now, do you have people sign new contracts over in Western Australia?‑‑‑Have we?
PN3040
Yes, new contracts of employment?‑‑‑Yes, I believe some have signed them.
PN3041
What's been the process for getting people to sign contracts?‑‑‑The only process I know of is that we ask them to sign them before a certain date to avoid a huge workload at the eleventh hour and the people that did sign them elected to sign them and handed them in to the project manager.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3042
Did they have a deadline to sign them by?‑‑‑We asked them if they could sign them before a deadline. I believe ‑ ‑ ‑
PN3043
What was that deadline?‑‑‑I believe - I'm unsure of that deadline but I do believe it was extended.
PN3044
Well, what was the deadline for?‑‑‑It was to avoid the mass of getting so many contracts into the system all in one hit.
PN3045
Okay, and what if - what's the impact of not signing a contract?‑‑‑I'm unsure. I'd have to take advisement on that.
PN3046
So you had a deadline but you're not sure why, apart from workload.
PN3047
MR FLETCHER: For the transcript, Deputy President, Mr Dark just nodded, and I thought we might give him the explanation about the importance of ‑ ‑ ‑
PN3048
THE DEPUTY PRESIDENT: Yes. You're not getting filmed, just recorded?‑‑‑Thank you.
PN3049
Well, you are being filmed as well, but ‑ ‑ ‑
PN3050
MR FLETCHER: So was that a yes, Mr Dark?‑‑‑Yes, it was.
PN3051
MR HARDIE: Did any employees ask you what would happen if they voted no, voted the agreement, proposed agreement ‑ ‑ ‑?‑‑‑Yes.
PN3052
What did you tell them?‑‑‑We told them that we would continue to discuss the EA with them until we reached an agreement.
PN3053
But what would have been the consequences if they voted it down in terms of their pay?‑‑‑I'm unsure of the consequences. That would be a decision for our executive, not me.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3054
And yet you're the bloke that's feeding information into the workforce in terms of giving them information about the terms and conditions of the enterprise agreement?‑‑‑That's correct, and the information was provided by our executive and our steer co, steer ‑ ‑ ‑
PN3055
Yes, but you don't know what the consequences would be if they voted no?‑‑‑No, I don't.
PN3056
How can you properly advise them?‑‑‑I advise them on my knowledge of the BGC way of doing ‑ ‑ ‑
PN3057
What the boss tells you. Is that right?‑‑‑I advise them on my knowledge of the way that BGC does business and our business model, and that would be to sit down and continue to talk.
PN3058
Did you ever tell them they'd go back on the award?‑‑‑No, never.
PN3059
Did anyone ever ask you that?‑‑‑I think maybe ‑ ‑ ‑
PN3060
MR FLETCHER: He's already answered that question?‑‑‑Yes. The two people that discussed it at the consultative meeting, yes.
PN3061
MR HARDIE: Just ignore him. He's just white noise. We're having a discussion.
PN3062
THE DEPUTY PRESIDENT: I can tell you. There was an employee and they raised it because they were worried about what happened at Griffin happening to them.
PN3063
MR HARDIE: Okay. So who was this recalcitrant employee that was negative?
PN3064
MR FLETCHER: Hang on, here we go again. You can't say, "Who was this recalcitrant employee?" because in answering the question if Mr Dark is being, for want of a better expression, misled into answering that, he agrees that the employee is recalcitrant. It's a loaded question.
PN3065
MR HARDIE: I'll rephrase.
PN3066
MR FLETCHER: It needs to be put in a proper way.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3067
MR HARDIE: I'll rephrase. Sit down. I'll rephrase. The employee that you made specific reference to as being very negative and put his negativity down to essentially being dealt with unfairly by your company, what was his name?‑‑‑I'm unsure.
PN3068
So he's an unknown person?‑‑‑He's one of 462.
PN3069
Okay, but you remembered him sufficiently ‑ ‑ ‑?‑‑‑I do, yes.
PN3070
Now, you said you had two discussions with employee reps. They weren't really - I don't know whether they were bargaining agents or not, but on 19 April and 13 May?‑‑‑That's correct.
PN3071
Did they ask for - how many were in attendance on 19 April?‑‑‑Approximately 17.
PN3072
And how many employees do you have on site?‑‑‑462.
PN3073
Did that 17 include management bargaining agents?‑‑‑No.
PN3074
Did they put up any log of claims?‑‑‑They tabled a ‑ ‑ ‑
PN3075
Ray tabled. Who's Ray?‑‑‑They.
PN3076
They. The mics aren't working properly.
PN3077
MR FLETCHER: The infamous Ray Table.
PN3078
MR HARDIE: Yes?‑‑‑They tabled numerous questions.
PN3079
Sorry, mate?‑‑‑That's okay.
PN3080
THE DEPUTY PRESIDENT: It's been a long two days with a late night in here yesterday.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3081
MR HARDIE: So what did Mr Table tell - no, what - I'll let you answer the question?‑‑‑At both the consultation meetings on the 19th and the 3rd they tabled numerous questions.
PN3082
What was the most common question?‑‑‑I don't recall there being a more common question than any other.
PN3083
I put it to you that a common question and a common concern was how enforceable - or how much they could rely on preserved conditions in these contracts of employment?‑‑‑That was a question that was asked, yes.
PN3084
Was that a common question?‑‑‑No.
PN3085
It wasn't?‑‑‑No.
PN3086
Well, what was more common than that question?‑‑‑There was a number of times where they questioned the logic and the calculations behind long service leave, annual leave and personal leave. That was a common thread.
PN3087
Okay, but they did ask the question, how enforceable are preserved conditions?‑‑‑Yes, they did.
PN3088
What did you tell them?‑‑‑We told them that the information we had in the pack suggested that their rights were protected under an industrial relations law that I am not able to quote, but that was the intention.
PN3089
Okay. So you responded by going back to the information pack?‑‑‑Yes.
PN3090
And that said that industrial relations law preserved their conditions?‑‑‑Yes. I'm unaware of the name of the law or what it is, but yes.
PN3091
Okay. So what's more easily in - do you know what's more easily enforced out of ‑ ‑ ‑
PN3092
MR FLETCHER: Hang on, I got in trouble for asking these questions yesterday.
PN3093
THE DEPUTY PRESIDENT: I think Mr Hardie's already got in trouble for doing it as well.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3094
MR FLETCHER: Yes. I just ‑ ‑ ‑
PN3095
MR HARDIE: I couldn't hear you, your Honour.
PN3096
THE DEPUTY PRESIDENT: You've already been told off once. Mr Fletcher's saying he got told off for doing this. I said I've already told you off as well.
PN3097
MR HARDIE: Okay.
PN3098
THE DEPUTY PRESIDENT: He's not able to give legal advice. You can ask Mr Fletcher or Mr Boncardo.
PN3099
MR HARDIE: I'll rephrase it. If I'm the employee asking this question am I to take it from your response that -hypothetically I ask you the question, that you would respond to me that it was okay, that the law equally protected my preserved rights and conditions either way, whether it's via contract or enterprise agreement? Would that be a fair summary?‑‑‑No. My response would be that, "It's described in the pack and if you need clarification I'll seek that from Perth."
PN3100
Did you seek any clarification?‑‑‑We did at times, yes.
PN3101
And what was the clarification on that question that you got?‑‑‑I can't recall the exact wording.
PN3102
You can't recall?‑‑‑No.
PN3103
Pretty important question though, because preserved conditions - I put to you preserved conditions were pretty important to people. You're nodding your head. For the transcript is that a yes?‑‑‑That's a yes, but I wasn't aware it was a question. Then, yes, if that's the answer.
PN3104
Wasn't aware of the question. What do you mean?‑‑‑I wasn't aware that that was a question.
PN3105
MR FLETCHER: I think just to clarify, I think Mr Dark is saying that he's not aware that what Mr Hardie is putting to him is a question, just to be clear.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3106
MR HARDIE: Is that right?‑‑‑Yes.
PN3107
I'm just checking, because - I don't know.
PN3108
THE DEPUTY PRESIDENT: Would you like to put your question to Mr Dark again so he can answer it?
PN3109
MR HARDIE: Well, I did.
PN3110
THE DEPUTY PRESIDENT: If only we knew what it was though.
PN3111
MR HARDIE: Well, you know, it's like a bloody annoying mozzie.
PN3112
THE DEPUTY PRESIDENT: Mr Dark, me or Mr Fletcher?
PN3113
MR HARDIE: With respect, both your Honour ‑ ‑ ‑
PN3114
MR FLETCHER: They do come in packs. Maybe it's Ray Table. Who knows?
PN3115
MR HARDIE: Okay. So your evidence to this commission is that the enforceability or the preservation of conditions of employment, when that question was raised the workers were told, "Don't worry. It's protected by industrial law." You made an inquiry - is your evidence then you made an inquiry about it but you can't remember what the response was?‑‑‑No.
PN3116
MR FLETCHER: I don't think he gave - I don't think he said that.
PN3117
MR HARDIE: Well, I think he did.
PN3118
MR FLETCHER: He didn't say - you're putting words in his mouth.
PN3119
MR HARDIE: I'm not putting words in his mouth. Can you sit ‑ ‑ ‑
PN3120
MR FLETCHER: He didn't say, "Don't worry. It's protected by industrial law." I don't remember him saying that.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3121
MR HARDIE: Okay, well, let's go through again. When that question was raised with you ‑ ‑ ‑
PN3122
THE DEPUTY PRESIDENT: Mr Boncardo's looking very excited about that prospect.
PN3123
MR BONCARDO: Chomping at the bit, your Honour.
PN3124
THE DEPUTY PRESIDENT: Yes. Go through the question again please, Mr Hardie, because I'm not clear what the witness agreed to.
PN3125
MR HARDIE: Well, perhaps we'll leave it at that, your Honour, because ‑ ‑ ‑
PN3126
THE DEPUTY PRESIDENT: Well, the important thing is I have to know what the witness's answer is, because I have to make a decision at some point.
PN3127
MR HARDIE: Well, you don't know what the hell he told people, because he hasn't been able to explain it, and that's precisely my point, so I rest.
PN3128
THE DEPUTY PRESIDENT: Okay.
PN3129
MR HANSON: What more is there to say? I have no questions.
PN3130
THE DEPUTY PRESIDENT: Mr Fletcher, would you ‑ ‑ ‑
PN3131
MR FLETCHER: I don't think I have any re‑examination.
PN3132
THE DEPUTY PRESIDENT: Okay.
PN3133
MR HARDIE: Are you sure?
PN3134
MR FLETCHER: Yes, positive.
PN3135
MR HARDIE: Good.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3136
THE DEPUTY PRESIDENT: Okay. In the applicant's court book there are some items ‑ ‑ ‑
PN3137
MR FLETCHER: Sorry, actually, I think - do we need to tender his statement? Maybe I didn't tender it, sorry.
THE DEPUTY PRESIDENT: Yes, we do. The witness statement of Mr Dark is B5.
EXHIBIT #B5 WITNESS STATEMENT OF GREGORY JOHN DARK
PN3139
MR FLETCHER: Yes, and it's tab 14, page 116 of our court book, the blue numbers.
PN3140
THE DEPUTY PRESIDENT: We labelled it B5. In your court book there is a number of documents which have not yet been tendered.
PN3141
MR FLETCHER: Yes.
PN3142
THE DEPUTY PRESIDENT: Are you proposing that they be tendered and allocated an exhibit number or do you no longer rely on them, or what's ‑ ‑ ‑
PN3143
MR FLETCHER: I think out of an abundance of caution I should probably tender them. I mean, there's a mix of emails to Member Assist and submissions. I would prefer if we could tender them, just out of an abundance of caution, so that they're ‑ ‑ ‑
PN3144
THE DEPUTY PRESIDENT: Because the witness statements in them have already been tendered and numbered separately.
PN3145
MR FLETCHER: Well, perhaps if we go through in order - yes.
PN3146
THE DEPUTY PRESIDENT: Yes. Can we see what actually needs to go in ‑ ‑ ‑
PN3147
MR FLETCHER: Yes, sure.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3148
THE DEPUTY PRESIDENT: ‑ ‑ ‑ and then I'll allocate exhibit numbers to them.
PN3149
MR FLETCHER: So the first - tab 1 is the Mining Enterprise Agreement 2016 which I think is already in evidence.
PN3150
THE DEPUTY PRESIDENT: In from - is it in this bundle?
PN3151
MR FLETCHER: It's in the red bundle.
PN3152
THE DEPUTY PRESIDENT: The red bundle, okay.
PN3153
MR FLETCHER: The form 16, I'm not sure if it needs to be marked. It was put to - it was referred to in cross‑examination of Ms Tolomei.
THE DEPUTY PRESIDENT: Let's mark it B6.
EXHIBIT #B6 FORM 16
PN3155
MR FLETCHER: Okay. The form 17 has been marked, because it's effectively the evidence‑in‑chief of Ms Tolomei. The better off overall review, it was filed with the commission at the time that the application for the approval of the agreement was filed. It's not an annexure to Ms Tolomei's form F17, it's more by way of submission. I'm happy to, in light of the fact that there's a number of better off overall issues that have been raised and that we'll need to address those in the written submissions that you've foreshadowed we need to file, I don't know that that document needs to be marked.
PN3156
THE DEPUTY PRESIDENT: Okay.
PN3157
MR FLETCHER: 5 is an email from Member Assist. I would like that marked.
PN3158
THE DEPUTY PRESIDENT: Gentlemen, feel free to jump up if you have any objections, otherwise I'm just going to presume that there's any objections to any of these.
PN3159
MR FLETCHER: 6 is an email regarding the proposed undertaking that was sent to the bargaining reps. I would like to tender that.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3160
THE DEPUTY PRESIDENT: B8.
PN3161
MR FLETCHER: 7 is an email response to Member Assist dated 25 August ‑ ‑ ‑
PN3162
MR HARDIE: Excuse me, your Honour?
PN3163
THE DEPUTY PRESIDENT: Yes?
PN3164
MR HARDIE: I'm just wondering whether it might be convenient to ‑ ‑ ‑
PN3165
THE DEPUTY PRESIDENT: Allow the witness to go?
PN3166
MR HARDIE: ‑ ‑ ‑ allow the witness to leave the witness box.
PN3167
THE DEPUTY PRESIDENT: Sure. That's very chivalrous of you.
PN3168
MR FLETCHER: Yes.
PN3169
MR HARDIE: Well, I'm showing the white side.
MR FLETCHER: That's right. He's beaten him to bloody pulp and now he's letting him loose.
<THE WITNESS WITHDREW [2.12 PM]
PN3171
MR FLETCHER: Sorry, where are we up to?
PN3172
MR BONCARDO: 8.
PN3173
MR FLETCHER: 8. Thank you.
PN3174
THE DEPUTY PRESIDENT: B8 is the email correspondence to bargaining reps.
*** GREGORY JOHN DARK XXN MR HARDIE
PN3175
MR FLETCHER: Signed undertaking. We need that. 9 is the email from Member Assist. 10 is the response. We need that. Your directions, I will be making a submission that relates to the directions that were issued and I'm not sure if that should be marked or whether it's a direction that's been issued in the proceedings and so should be left out. I'm in your hands, Deputy President.
THE DEPUTY PRESIDENT: I'm more worried that my numbering system has gone astray at 6, because I've got - the item at tab 6 is B8. The item at tab 7 is B9. The signed undertaking item at tab 8, B10.
EXHIBIT #B8 ITEM AT TAB 6
EXHIBIT #B9 ITEM AT TAB 7
EXHIBIT #B10 ITEM AT TAB 8, SIGNED UNDERTAKING
PN3177
MR FLETCHER: Yes.
PN3178
THE DEPUTY PRESIDENT: The item at tab 9, the email from Member Assist dated 26 August 2016, you want that in?
PN3179
MR FLETCHER: Yes.
THE DEPUTY PRESIDENT: B11.
EXHIBIT #B11 ITEM AT TAB 9, EMAIL FROM MEMBER ASSIST DATED 26/08/16
PN3181
MR FLETCHER: 12.
THE DEPUTY PRESIDENT: Email response to Member Assist dated 30 August, B12.
EXHIBIT #B12 EMAIL RESPONSE TO MEMBER ASSIST DATED 30/08/16
PN3183
MR FLETCHER: Yes.
PN3184
THE DEPUTY PRESIDENT: The directions, gentlemen, do you have any views on whether they get marked?
PN3185
MR BONCARDO: No, your Honour.
THE DEPUTY PRESIDENT: I'll mark them then B13.
EXHIBIT #B13 DIRECTIONS
PN3187
MR FLETCHER: Then there's an outline of submissions that we would like marked.
PN3188
THE DEPUTY PRESIDENT: B14 - no, it's already marked.
PN3189
MR FLETCHER: Already been marked.
PN3190
THE DEPUTY PRESIDENT: That's marked.
PN3191
MR FLETCHER: Marked, and just out of - in view of the fact that the unions are not pursuing the submissions that arise from - so there's an issue around the identification of test time, so in other words the time at which you are obliged to test the award against the award against the agreement for better off overall purposes. Out of convenience I've included in the court book a copy of each of the black coal and mining industry awards as they were at the time of the approval application. I should point out that there is a typographical error in the index at 17. We don't have access to time travel so it should read the version as 16 November 2015.
THE DEPUTY PRESIDENT: Okay. So the Black Coal Mining Industry Award 2010 is B15 and the Mining Industry Award 2010, B16.
EXHIBIT #B15 BLACK COAL MINING INDUSTRY AWARD 2010
EXHIBIT #B16 MINING INDUSTRY AWARD 2010
PN3193
MR FLETCHER: Thank you. I think that's going to assist the parties, because that way we're all working off the same versions of the award.
PN3194
THE DEPUTY PRESIDENT: Written submissions - do you gentlemen want me to mark your submissions? Usually when I'm writing a decision I reference ‑ ‑ ‑
PN3195
MR BONCARDO: Certainly, your Honour. If your Honour would be good enough to mark the submissions of Mr Thomas and myself.
PN3196
THE DEPUTY PRESIDENT: So we've got the outline of submissions ‑ ‑ ‑
PN3197
MR BONCARDO: They were filed on 2 September, your Honour.
PN3198
THE DEPUTY PRESIDENT: Yes. I've got submissions by the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, filed on 2 September 2016 and I've also got the further submissions on BOOT that you filed in the course of these proceedings.
PN3199
MR BONCARDO: Your Honour should also have submissions written by me for the Construction and General Division.
PN3200
MR FLETCHER: Sorry, have we marked two separate submissions from the Mining and Energy Division?
PN3201
THE DEPUTY PRESIDENT: Yes. The first is - B17 is their main submissions.
PN3202
MR FLETCHER: That's 2 September.
THE DEPUTY PRESIDENT: That's 2 September.
EXHIBIT #B17 CFMEU MINING AND ENERGY DIVISION SUBMISSIONS DATED 02/09/2016
PN3204
MR FLETCHER: What's the second one please?
PN3205
THE DEPUTY PRESIDENT: The second one is B18, which is the further submissions that were filed yesterday - this morning.
PN3206
MR BONCARDO: They're two separate things, your Honour. The one-page document that I filed ‑ ‑ ‑
PN3207
THE DEPUTY PRESIDENT: Sorry, yes. Your original submissions, yes.
PN3208
MR BONCARDO: Yes.
PN3209
MR FLETCHER: Yes. I don't think the ones from yesterday are Mining and Energy.
PN3210
MR BONCARDO: No, they're ‑ ‑ ‑
PN3211
THE DEPUTY PRESIDENT: No.
PN3212
MR FLETCHER: That's the issue.
PN3213
MR BONCARDO: It's the Times New Roman font document, your Honour. No, that's the Mining and Energy.
PN3214
THE DEPUTY PRESIDENT: No, so one that's signed by Mr Boncardo. Mr Boncardo.
PN3215
MR BONCARDO: It should be a 16‑pager. That looks - yes, that's good enough, your Honour.
PN3216
THE DEPUTY PRESIDENT: Okay.
PN3217
MR BONCARDO: I hope it's the right one. I'm sure it is.
PN3218
THE DEPUTY PRESIDENT: Okay. So B18 was the Mining and Energy Division submissions.
PN3219
MR FLETCHER: B17 is Mining and Energy.
PN3220
MR BONCARDO: B17 was the Mining and Energy, 18 ‑ ‑ ‑
THE DEPUTY PRESIDENT: So B18 is your submissions, Mr Boncardo.
EXHIBIT #B18 SUBMISSIONS OF MR BONCARDO DATED 02/09/2016
PN3222
MR BONCARDO: Yes, of 2 September.
THE DEPUTY PRESIDENT: Yes, and then your additional submissions, B19.
EXHIBIT #B19 ADDITIONAL SUBMISSIONS OF MR BONCARDO
PN3224
MR BONCARDO: Thank you, your Honour. Would your Honour also be minded to mark the submissions that I handed up this morning in respect to Mr Fletcher's bundle of documents?
THE DEPUTY PRESIDENT: Yes. So I'm marking the CFMEU's objections to BGC's proposed tender bundle as B20.
EXHIBIT #B20 CFMEU OBJECTIONS TO BGC'S PROPOSED TENDER BUNDLE
PN3226
MR BONCARDO: Thank you, your Honour. I think that's the totality of our submissions.
PN3227
THE DEPUTY PRESIDENT: Okay, and then I've got some written submissions ‑ ‑ ‑
PN3228
MR HARDIE: Yes, we put an outline of submissions in before the due date, whatever that was. Do you have that?
PN3229
THE DEPUTY PRESIDENT: Yes.
PN3230
MR FLETCHER: What's the date of that document please?
PN3231
THE DEPUTY PRESIDENT: They are dated - they're not dated.
PN3232
MR HARDIE: Try the footnote.
PN3233
THE DEPUTY PRESIDENT: No, it's just got the matter number in it.
PN3234
MR HARDIE: Is that B21?
PN3235
THE DEPUTY PRESIDENT: B21, yes.
PN3236
MR HARDIE: B21?
PN3237
THE DEPUTY PRESIDENT: Yes. We're just checking the filing date.
PN3238
MR THOMAS: I'll just tell your Honour, when I tendered our submission I also sent an email later that day correcting some typos. I'd made some references to some wrong matters - some wrong sections of the Act. It's an email dated 2 September ‑ ‑ ‑
PN3239
THE DEPUTY PRESIDENT: We will attach that ‑ ‑ ‑
PN3240
MR THOMAS: ‑ ‑ ‑ at 6.24.
PN3241
MR FLETCHER: Just attach it to B17.
PN3242
THE DEPUTY PRESIDENT: We'll attach it to your submissions.
PN3243
MR THOMAS: Okay, that's just - so I just note a couple of references to incorrect sections of the Act which would be self‑evident if you read them.
PN3244
THE DEPUTY PRESIDENT: I had sent my working files back to WA already, so that's why we're a bit disorganised with the submissions here. Okay, are there any other documents which require marking? No, okay. So as far as housekeeping goes, I'm proposing that the parties file written closing submissions, because that will assist me in my task, and given the way the hearing ran, without the opportunity to give clear opening submissions and where we were having to move witnesses around because of availability, I appreciate that made it difficult for counsel to develop their argument in a more logical way than you would normally.
PN3245
I don't want to put you at a disadvantage because of the constraints placed on us with resourcing as far as travel so what I'm proposing is to give you the opportunity to submit final closing submissions. This is not an opportunity to bring in more evidence. We've had that process backwards and forwards in the interlocutory stages of this matter so I hope that you will respect that instruction and understand it clearly.
PN3246
What I'm proposing is to give you sufficient time to prepare those submissions so that transcript is available. Because of the way the case ran and the disorder amongst the witnesses I think it's better for the proper preparation of submissions for that to occur. I will order transcript to spare the parties that cost and we will notify the parties as soon as that's available. Then I would propose that the time for filing runs from the date on which the transcript becomes available.
PN3247
I am happy to have some submissions - firstly from Mr Fletcher, perhaps, how long you would propose that the parties have to make their submissions and whether there's a date for all materials to be filed, a common date, or whether there's the opportunity for a common date and reply or there's a staggered provision. It should just be a common date, I would say, because we're not introducing anything more. It should just be the summary of your case. So that would be what I would expect unless you have some compelling argument otherwise.
PN3248
MR FLETCHER: That's fine for us. Look, in the interests of getting to approval - a decision relatively quickly - and we need to talk in a moment about the - or need to raise in a moment about the discussion the parties had before you on the first day about undertakings, but I think probably materials together and then materials in reply four working days from the receipt of the transcript and then four working days for a reply upon receipt of the other parties' materials, would be our proposal.
PN3249
THE DEPUTY PRESIDENT: Mr Boncardo?
PN3250
MR BONCARDO: I'm not sure what the need is for reply submissions, your Honour, and I would be content with a common date for submissions. The parties have already filed elaborate written submissions.
PN3251
THE DEPUTY PRESIDENT: Yes.
PN3252
MR BONCARDO: I don't want your Honour to be burdened by far too much material. Your Honour has already got reams of paper for this matter. It would seem to me that a common date for the filing of submissions, to use my friend's discourse, of five business days or working day. I think five is probably cleaner than four, but it doesn't really matter, your Honour.
PN3253
THE DEPUTY PRESIDENT: Yes.
PN3254
MR BONCARDO: We're squabbling over that.
PN3255
THE DEPUTY PRESIDENT: Yes. Mr Hardie, do you have any views on how long the time‑frame should be?
PN3256
MR HARDIE: Yes, I'm with Mr Boncardo on this. I think one shot at it. There shouldn't be any need for - there's no new evidence being raised.
PN3257
THE DEPUTY PRESIDENT: Yes.
PN3258
MR HARDIE: I understand my friend's urgency in getting the matter resolved. I think four days from receipt of transcript for me is too short.
PN3259
THE DEPUTY PRESIDENT: Yes.
PN3260
MR HARDIE: But I could ‑ ‑ ‑
PN3261
THE DEPUTY PRESIDENT: What would you propose?
PN3262
MR HARDIE: But I could do it within eight business days.
PN3263
THE DEPUTY PRESIDENT: Okay. Mr Hanson? First of all, are you going to file anything?
PN3264
MR HANSON: Well, yes.
PN3265
THE DEPUTY PRESIDENT: Then I'll take your views on how long you have.
PN3266
MR HANSON: In part probably because it's not actually - I'm not reliant on the applicant producing anything to me for this one - well, it was going to come eventually.
PN3267
MR FLETCHER: Yes, it was.
PN3268
MR HANSON: So, look, I would generally be fine with five but I'm also fine with eight. I mean, we're just sort of dancing around the maypole there. I'll leave it entirely up to the Deputy President.
PN3269
MR FLETCHER: Just on a reply, I'm happy for the reply time to be curtailed down to a day or two days. The reason I want for there to be a reply is that on the first day Mr Boncardo did mention that there were some new elements to their argument. He's retreated from some aspects, but he did mention that there were some new aspects. I think they've got something to do with the notices that people provided of wanting - of being appointed as a bargaining rep. I just don't want to be in a situation where I get blindsided because there's an issue that's been raised in submissions filed at the same time and then not an opportunity to provide a very reply if that's necessary.
PN3270
THE DEPUTY PRESIDENT: It should only be - the submissions should only address the matters that were addressed at hearing.
PN3271
MR BONCARDO: Yes. What my friend is alluding to, your Honour, I took a couple of the witnesses to the appointment of bargaining representative forms.
PN3272
THE DEPUTY PRESIDENT: I noticed that.
PN3273
MR BONCARDO: I'm not going to make a big deal about it. I may make no deal about it at all. I don't need it to win this case at all, in my view, if that assists my friend.
PN3274
MR FLETCHER: Just a day to find out whether it is a big deal or not, is all I'm asking for.
PN3275
THE DEPUTY PRESIDENT: Okay. What's the parties' views about giving BGC the opportunity to make undertakings following - either before the submissions are filed or in response to the submissions?
PN3276
MR BONCARDO: I think our position is what it was yesterday, which is that your Honour has to have a concern first before it is appropriate for BGC to be asked to give undertakings. If your Honour has ‑ ‑ ‑
PN3277
THE DEPUTY PRESIDENT: We routinely give requests for undertakings coming out of triage team so ‑ ‑ ‑
PN3278
MR BONCARDO: Certainly.
PN3279
THE DEPUTY PRESIDENT: Yes.
PN3280
MR BONCARDO: Certainly, but those undertakings occur after the commission has expressed a concern, and that's ‑ ‑ ‑
PN3281
THE DEPUTY PRESIDENT: Well, that's how this has got to a listing, because the commission has a concern.
PN3282
MR BONCARDO: I understand.
PN3283
THE DEPUTY PRESIDENT: So it has to have had a concern to get to this point.
PN3284
MR BONCARDO: I'm not sure whether your Honour is able to give us an indication of what those specific concerns are now or during the ‑ ‑ ‑
PN3285
THE DEPUTY PRESIDENT: Isn't that one of the documents that were tendered?
PN3286
MR BONCARDO: That was done prior to us putting on our submissions about the BOOT. The concerns we have about the BOOT are far more extensive than the concerns identified by Member Assist.
PN3287
THE DEPUTY PRESIDENT: So those concerns are now on the record for BGC to potentially respond to as an undertaking.
PN3288
MR FLETCHER: As long as there's no prejudice to BGC in the process that Mr Boncardo's proposing, because I don't want to be trapped into a situation where procedurally Mr Boncardo proposes a course of action that then makes the agreement appellable. If we're all on the same page that you need to decide first whether the other issues, the other requirements, have been met, and then let the parties know that there's an issue as you see it that requires an undertaking, I think the much cleaner approach is the one that Mr Boncardo is proposing, and as long as that doesn't prejudice BGC then I'm quite happy to go with that plan.
PN3289
THE DEPUTY PRESIDENT: That will just push the process out a bit longer. I was just trying to ‑ ‑ ‑
PN3290
MR FLETCHER: Which I'm not - which BGC is not ‑ ‑ ‑
PN3291
THE DEPUTY PRESIDENT: Yes.
PN3292
MR FLETCHER: We are in a hurry, but we're not in that much of a hurry. We want to get it right.
PN3293
THE DEPUTY PRESIDENT: Okay.
PN3294
MR BONCARDO: I think that is eminently sensible and assuage my friend again, I'm not attempting to lead him into some sort of trap. We are trying as best we can to ensure that what occurs strictly conforms with section 190(1).
PN3295
THE DEPUTY PRESIDENT: So you propose that I issue a decision in relation to the hearing ‑ ‑ ‑
PN3296
MR BONCARDO: Yes.
PN3297
THE DEPUTY PRESIDENT: ‑ ‑ ‑ and then invite the party - invite BGC to make an undertaking which addresses those concerns.
PN3298
MR BONCARDO: Yes.
PN3299
MR FLETCHER: Any concerns you have.
PN3300
THE DEPUTY PRESIDENT: And would you want to be heard in relation - would there be any need for any parties to be heard?
PN3301
MR BONCARDO: Yes.
PN3302
MR FLETCHER: Yes.
PN3303
MR BONCARDO: Yes, very briefly, your Honour, very briefly. It depends on the scope of the undertakings. If your Honour is in agreement with some of our contentions in respect to the argument it will become entirely academic in respect to genuine agreements and the other points that we have raised. So it may not be an issue that arises. I'm hopeful that it doesn't.
PN3304
MR FLETCHER: Yes, and as long as it happens on the papers we're not concerned.
PN3305
MR BONCARDO: I have no issue with it happening on the papers. I think that's eminently sensible.
PN3306
THE DEPUTY PRESIDENT: What I'll do is provide seven days.
PN3307
MR FLETCHER: Seven working days - or business days?
PN3308
THE DEPUTY PRESIDENT: Seven calendar days.
PN3309
MR HARDIE: Five business days.
PN3310
THE DEPUTY PRESIDENT: Five plus two.
PN3311
MR BONCARDO: That's in respect to undertakings, your Honour, or generally?
PN3312
THE DEPUTY PRESIDENT: Submissions.
PN3313
MR BONCARDO: Submissions. Thank you.
PN3314
MR FLETCHER: And a reply?
PN3315
THE DEPUTY PRESIDENT: A day.
PN3316
MR FLETCHER: Thank you.
PN3317
MR BONCARDO: Your Honour, can that reply apply not just to BGC but to everyone?
PN3318
THE DEPUTY PRESIDENT: Yes.
PN3319
MR BONCARDO: Thank you.
PN3320
THE DEPUTY PRESIDENT: But you've all got the day, because Mr Fletcher has suggested it be a day and I'm not inclined to make it any longer than that.
PN3321
MR BONCARDO: Certainly.
PN3322
MR FLETCHER: I think that will focus everyone's attention ‑ ‑ ‑
PN3323
THE DEPUTY PRESIDENT: Attention.
PN3324
MR FLETCHER: ‑ ‑ ‑ on what's important.
PN3325
THE DEPUTY PRESIDENT: Yes. I don't want it to get into a backwards and forwards and backwards and forwards.
PN3326
MR BONCARDO: Certainly.
PN3327
MR FLETCHER: We'll make sure the end of the seven calendar days is the Friday - cheating.
PN3328
THE DEPUTY PRESIDENT: So there's nothing to stop the parties beginning work on their final submissions pending the arrival of transcript, so there is in fact more than the days which will issue - so the seven days won't run until my chambers notifies you that we have the transcript available.
PN3329
MR BONCARDO: Certainly, your Honour.
PN3330
THE DEPUTY PRESIDENT: So you can start your work in the meantime. Then there will be a day for replies. There has to be a death for any changes to this schedule - not one you've caused, one of your own.
PN3331
MR FLETCHER: Or maybe even an actual death of one of the participants.
PN3332
THE DEPUTY PRESIDENT: One of the counsel. Witnesses don't count. One of the counsel, that's the only circumstances in which I'm changing dates - and only for that counsel.
PN3333
MR HARDIE: I pity your sons. I have so much ‑ ‑ ‑
PN3334
MR FLETCHER: The transcript is fascinating.
PN3335
MR HARDIE: I have so much empathy for them.
PN3336
THE DEPUTY PRESIDENT: That wouldn't be the first time someone's said that. Is there anything else the parties would like? Any other housekeeping?
PN3337
MR FLETCHER: No. The issues you raised last night are the only issues that you specifically want addressed.
PN3338
THE DEPUTY PRESIDENT: That's not an exclusive list.
PN3339
MR FLETCHER: No, I understand.
PN3340
THE DEPUTY PRESIDENT: But they're just things that ‑ ‑ ‑
PN3341
MR FLETCHER: They are things that are particularly of interest.
PN3342
THE DEPUTY PRESIDENT: ‑ ‑ ‑ have struck me in - and it's difficult, because the evidence was given in a disordered structure, so it was difficult to try and ascertain where some of you were taking some of your submissions.
PN3343
So they were just things that struck me from what the witnesses were saying, but I suppose those were - the fact - there was a lot of evidence about why South Australian employees didn't vote the agreement up but a bit of a dearth of evidence about why the West Australians didn't, and I note there's no evidence from any West Australian employees. What conclusions I can draw from the fact that there's been no challenge from WA employees or WA unions that genuinely agreed - the section 188 genuinely agreed provisions must mean something more than just you've got a majority.
PN3344
MR BONCARDO: It certainly does, your Honour.
PN3345
THE DEPUTY PRESIDENT: I don't know whether the parties are going to press this, but what authority or statutory obligation there is on employers to assist individual bargaining reps to act collectively, or to resource them. Whether there was any obligation to notify the default bargaining reps and involve them and at what point that was due to - if that was required to occur, when that should have occurred. Can an employee - is there genuine agreement if employees were told that they would lose their preserved conditions if they didn't vote in favour of the agreement? That's it.
PN3346
There's clearly other issues and there were detailed submissions provided, particularly in Mr Boncardo's case, which address more technical details, but these were the issues that - submissions which appeared on the witness evidence and were less clear in my mind, so some submissions in those would be of some assistance.
PN3347
MR HARDIE: On the issue of case law, your Honour ‑ ‑ ‑
PN3348
THE DEPUTY PRESIDENT: Yes?
PN3349
MR HARDIE: ‑ ‑ ‑ you have been provided with a lot of case law by both the AMWU and the CFMEU.
PN3350
THE DEPUTY PRESIDENT: Yes.
PN3351
MR HARDIE: We will provide you more, but some of the issues that you're raising are given some attention in some of that case law that's already been provided.
PN3352
THE DEPUTY PRESIDENT: Yes. No, this is not based on the submissions, it's just things that occurred to me during the witness evidence. So I'm not saying that you haven't adequately addressed them, but they were just points that occurred to me once I was listening to the witness evidence, and then there are other points on the written submissions that could do with some clarifications.
PN3353
MR HARDIE: We would say the Falcon case is worthy of a very thorough read.
PN3354
THE DEPUTY PRESIDENT: I shall do that. Anything more from the parties?
PN3355
MR FLETCHER: Nothing, Deputy President.
PN3356
THE DEPUTY PRESIDENT: Mr Hanson?
PN3357
MR HANSON: No, nothing for ‑ ‑ ‑
PN3358
THE DEPUTY PRESIDENT: Mr Hardie, my favourite counsel, was there anything else you'd like to say today?
PN3359
MR HARDIE: Thank you for your patience and ‑ ‑ ‑
PN3360
MR FLETCHER: So long and watch out for Ray Table.
PN3361
MR HARDIE: Yes. Yes, thank you for your presiding skill and persistence to get us through it within ‑ ‑ ‑
PN3362
THE DEPUTY PRESIDENT: In a short time‑frame.
PN3363
MR HARDIE: ‑ ‑ ‑ tight time‑frames.
PN3364
THE DEPUTY PRESIDENT: It's been my pleasure. Mr Boncardo, anything further?
PN3365
MR BONCARDO: Nothing further, your Honour.
PN3366
THE DEPUTY PRESIDENT: Thanks.
PN3367
MR HANSON: Haigh's Chocolates are good.
PN3368
THE DEPUTY PRESIDENT: Yes.
PN3369
MR HARDIE: Do you want chocolates?
PN3370
THE DEPUTY PRESIDENT: That's the best thing Mr Hanson has contributed so far this afternoon. See, the important thing is if you're going to speak, say something worthwhile.
PN3371
MR HANSON: You and Mr O'Callaghan have both said that.
PN3372
THE DEPUTY PRESIDENT: Mr Thomas, have you got anything?
PN3373
MR THOMAS: Nothing further, your Honour.
PN3374
THE DEPUTY PRESIDENT: Okay. In that case I'll adjourn the matter and I will endeavour - I'll wait for the submissions and endeavour to get a decision to you as quickly as I can.
ADJOURNED INDEFINITELY [2.38 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A13 WITNESS STATEMENT OF SCOTT MARTIN............... PN1988
TARIRO RUWIZA, AFFIRMED..................................................................... PN2005
EXAMINATION-IN-CHIEF BY MR FLETCHER....................................... PN2005
CROSS-EXAMINATION BY MR BONCARDO........................................... PN2163
CROSS-EXAMINATION BY MR THOMAS................................................. PN2345
RE-EXAMINATION BY MR FLETCHER.................................................... PN2432
EXHIBIT #B1 WITNESS STATEMENT OF TARIRO RUWIZA TOGETHER WITH ATTACHMENTS............................................................................................... PN2454
THE WITNESS WITHDREW.......................................................................... PN2455
CORRINA TOLOMEI, SWORN...................................................................... PN2463
EXAMINATION-IN-CHIEF BY MR FLETCHER....................................... PN2463
EXHIBIT #B2 COPY STATUTORY DECLARATION OF CORRINA TOLOMEI PN2471
EXHIBIT #B3 STATUTORY DECLARATION OF CORRINA TOLOMEI DATED 09/09/2016............................................................................................................................... PN2483
EXHIBIT #B4 SCRIPT FOR INDUCTION VIDEO...................................... PN2507
CROSS-EXAMINATION BY MR BONCARDO........................................... PN2570
CROSS-EXAMINATION BY MR THOMAS................................................. PN2624
CROSS-EXAMINATION BY MR HARDIE................................................... PN2673
RE-EXAMINATION BY MR FLETCHER.................................................... PN2893
THE WITNESS WITHDREW.......................................................................... PN2952
GREGORY JOHN DARK, SWORN................................................................ PN2958
EXAMINATION-IN-CHIEF BY MR FLETCHER....................................... PN2958
CROSS-EXAMINATION BY MR THOMAS................................................. PN3011
CROSS-EXAMINATION BY MR HARDIE................................................... PN3023
EXHIBIT #B5 WITNESS STATEMENT OF GREGORY JOHN DARK.. PN3138
EXHIBIT #B6 FORM 16.................................................................................... PN3154
THE WITNESS WITHDREW.......................................................................... PN3170
EXHIBIT #B8 ITEM AT TAB 6....................................................................... PN3176
EXHIBIT #B9 ITEM AT TAB 7....................................................................... PN3176
EXHIBIT #B10 ITEM AT TAB 8, SIGNED UNDERTAKING................... PN3176
EXHIBIT #B11 ITEM AT TAB 9, EMAIL FROM MEMBER ASSIST DATED 26/08/16............................................................................................................................... PN3180
EXHIBIT #B12 EMAIL RESPONSE TO MEMBER ASSIST DATED 30/08/16 PN3182
EXHIBIT #B13 DIRECTIONS.......................................................................... PN3186
EXHIBIT #B15 BLACK COAL MINING INDUSTRY AWARD 2010...... PN3192
EXHIBIT #B16 MINING INDUSTRY AWARD 2010................................... PN3192
EXHIBIT #B17 CFMEU MINING AND ENERGY DIVISION SUBMISSIONS DATED 02/09/2016............................................................................................................. PN3203
EXHIBIT #B18 SUBMISSIONS OF MR BONCARDO DATED 02/09/2016 PN3221
EXHIBIT #B19 ADDITIONAL SUBMISSIONS OF MR BONCARDO..... PN3223
EXHIBIT #B20 CFMEU OBJECTIONS TO BGC'S PROPOSED TENDER BUNDLE............................................................................................................................... PN3225
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