C2018/5802, Transcript of Proceedings [2018] FWCTrans 469 (11 December 2018)

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PN1

THE DEPUTY PRESIDENT: I'll just take appearances.

PN2

MR R WADE: May it please, your Honour, subject to the grant of leave in respect of which submissions have been filed, I appear for the applicant.

PN3

THE DEPUTY PRESIDENT: Yes.

PN4

MR C YOUNG: Good afternoon, your Honour, Carl Young on behalf of the AWU.

PN5

THE DEPUTY PRESIDENT: Thank you. With regard to permission as you've just alluded to, Mr Wade, I have had the opportunity to read the submissions. I just want to see whether Mr Young has anything to say in response.

PN6

MR WADE: As it pleases, your Honour.

PN7

MR YOUNG: We take no objection, your Honour.

PN8

THE DEPUTY PRESIDENT: Thank you, Mr Young. Yes, so, look, in the circumstances, I am satisfied that the grant of permission is warranted. It's apparent to me from the terms of the application made and the documents filed by the applicant that the issues are of some complexity that will arise, and would be more efficiently dealt with if permission was granted.

PN9

Having said that, I note that this is an application under section 418 of the Act, before we proceed, I just wanted to note do we have witnesses here or are they outside waiting?

PN10

MR WADE: The applicant's single witness is present in the court.

PN11

THE DEPUTY PRESIDENT: Is he providing instructions or ‑ ‑ ‑

PN12

MR WADE: No, he can be excused if that's your wish.

PN13

THE DEPUTY PRESIDENT: Yes, that would be my wish. Thank you.

PN14

MR WADE: Thank you.

PN15

THE DEPUTY PRESIDENT: Are there any witnesses ‑ ‑ ‑

PN16

MR YOUNG: Your Honour, we have one.

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR YOUNG: Do you want that witness excluded as well?

PN19

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Young.

PN20

MR YOUNG: Thank you, your Honour.

PN21

THE DEPUTY PRESIDENT: So, look, I'll hear opening submissions from the applicant and then also from the respondent. We will then turn to hear the evidence of the witnesses. My associate will swear in each witness who is going to provide evidence in this matter, and you should appreciate that having been sworn in all of the statements as to the facts in this hearing will be subject to that oath or affirmation and the witnesses must tell the truth as they know it to be.

PN22

Each party will obviously have the opportunity to cross-examine each other's witnesses and to conduct re-examination. During the process I may ask questions and explore your respective positions, however, you should understand that it remains your responsibility to present your own case and to ensure that I am informed of all of the relevant facts.

PN23

When you've both presented your evidence there will be the opportunity to provide closing submissions. Having heard your cases then obviously a determination will need to be made. So if it's the case we might then start with you, Mr Wade.

PN24

MR WADE: Thank you, your Honour. Your Honour, given that the industrial action, which is the subject of the proceedings, is due to commence at 5 today, if I may just confine the submissions, and the written submissions having been filed, if I can just make the main points.

PN25

There are four grounds upon which Alcoa will assert that the current industrial is unprotected. The first of those grounds links to the issue of identifiable claims, and you would have seen from the witness statement, your Honour, and the submissions that have been filed, there's a sequence of correspondence which tends to suggest, on its face, that absent any other evidence and absent any other correspondence or engagements that the matter was, for all practical purposes, resolved on the basis that the parties are in broad agreement regarding all outstanding issues. Allied to that, of course, are the reported comments at MCG4 confirming that particular state of affairs by the AWU branch secretary, Mr Mike Zoetbrood.

PN26

Your Honour, we will assert on that ground that in the absence of there being something that Alcoa can do today to actually address any alleged lack of consensus the strike can't be for any functional purpose and it can't be protected under the Act.

PN27

The second ground, your Honour, in brief terms, has to do with the, in some respects, curious SMS's that appear to emanate from leaders in the bargaining process, and which suggest, amongst other things, that the real purpose of the proposed industrial action has nothing to do with outstanding claims which brings us back to the first point, but rather to do with the change to the rules campaign, and in that context of course that would imply a number of things, not only is the proposed action completely dysfunctional to collective bargaining, it's outlawed by the Fair Work Act, and more over directed at parties beyond Alcoa.

PN28

The third ground, your Honour, in brief, concerns directly the same series of text messages which suggests that there is a move at foot in terms of which new bargaining representatives will be appointed not to further the bargaining process or advance it or enhance it or take particular issue with existing claims, but rather to "serve the purpose of putting the cat amongst the pigeons", and Alcoa would assert, your Honour, that in those circumstances there is clear evidence that the AWU is not genuinely trying to reach agreement. And might I just add that particular message has come to fruition, because you would have read from Mr Gleeson's witness statement that there have in fact been a significant number of employees who have indicated that they wish to change their bargaining representative.

PN29

The last ground, your Honour, concerns section 414(6) and the essential assertion there is that the nature of the industrial action that is specified or has been notified is not only misleading and incorrect but is intended to mislead and is intended not to give Alcoa notice of what's going to happen but rather to mislead Alcoa in respect of what's going to happen. It's inaccurate in respect of who will be participating in the strike that's proposed to start this afternoon. It's inaccurate and incorrect in respect of whether or not it actually is in pursuit of EBA claims, for want of a better term, or tomorrow's march or campaign. It's not actually intended to be indefinite, and that's evident from the SMS message, and it's in truth about something completely unrelated to Alcoa, and that is the change the rules campaign.

PN30

Those are the four grounds. They are all addressed in the submissions, your Honour. They are all dealt with factually so far as they can be by Mr Gleeson in his witness statement, and subject to your requirements that is by way of opening.

PN31

THE DEPUTY PRESIDENT: Thank you.

PN32

MR YOUNG: Thank you, your Honour. With regards to the four grounds for claiming or making this application under section 418, we certainly disagree with the first head, the so-called identifiable claims grounds. We say that in spite of a document being put out to ballot there remains a raft of issues between the parties.

PN33

With regards to the second matter, we say that there has been in effect some confusion from Alcoa with regards to these so-called text messages, and I think here the two matters, head 2 and head 4, are in effect joined certainly at the hip.

PN34

The ballot process, that is the actual voting process, commenced yesterday I understand at six o'clock, and is due to expire, I understand, tomorrow at midday. So the fact that there had been some text messages maybe nothing more than sheer coincidence when one takes into account the actual balloting process of the proposed document.

PN35

Then, of course, this issue around the new bargaining representatives, on behalf of the Australian Workers' Union, who is the respondent to this, the AWU certainly has been genuinely trying to reach agreement, and with regards to individuals who may now be seeking, I'm somewhat cautious to use this phrase, but to opt out of that is an option that they do of course have under the Act, but it certainly does not take away from the AWU genuinely trying to reach agreement. I'm sure that, your Honour, in an earlier proceeding, is aware of the efforts that both parties have gone to to try and reach agreement in this.

PN36

With that I have nothing further to say.

PN37

THE DEPUTY PRESIDENT: Thank you, Mr Young. Would you like to call your first witness?

PN38

MR WADE: Thank you, your Honour. That would be Mr Matthew Gleeson in respect of whom a witness statement has been filed. Your Honour, I might, as a matter of housekeeping, we did undertake in the earlier correspondence with the Commission to make available a signed copy of that witness statement.

PN39

THE ASSOCIATE: Please state your full name and address.

PN40

MR GLEESON: Matthew Craig Gleeson, care of Alcoa, Pinjarra Refinery.

<MATTHEW CRAIG GLEESON, SWORN [2.18 PM]

EXAMINATION-IN-CHIEF BY MR WADE [2.18 PM]

PN41

MR WADE: Thank you, your Honour. Then might I beg leave to trouble your associate once again to hand to Mr Gleeson a copy of a signed witness statement? Mr Gleeson, would you mind having regard to the witness statement that's been handed to you, and if you could turn to the last page of the witness statement before the annexures commence, and just indicate whose signature appears on that statement?‑‑‑It's mine.

PN42

And can you confirm, Mr Gleeson, that you are familiar with the contents of the statement as also the annexure to the statement?‑‑‑Yes, I can.

PN43

And do you confirm that that statement, read with its annexures, contains the evidence you wish to give in these proceedings?‑‑‑Yes, I do.

PN44

Your Honour, I tender the witness statement of Matthew Craig Gleeson.

PN45

THE DEPUTY PRESIDENT: I will mark that as A1. And that's the witness statement of Matthew Gleeson.

EXHIBIT #A1 WITNESS STATEMENT OF MATTHEW CRAIG GLEESON

PN46

MR WADE: Your Honour, arising out of what was said in opening by the AWU I just have one short series of questions to add to this particular narrative if I may.

PN47

THE DEPUTY PRESIDENT: Thank you.

PN48

MR WADE: There may or may not in due course, Mr Gleeson, be some debate or argument about the import of certain text messages which are attached to your witness statement, but for present purposes could you just indicate to her Honour who is Mr Stuart Allen?‑‑‑Stuart is a member of the AWU negotiating committee. I think he is – he's an Alcoa employee at the Pinjarra refinery. He is the position in the Pinjarra sub-branch is, I believe, branch secretary or I'm not 100 per cent sure, but he's been a member of the negotiating committee from day one.

*** MATTHEW CRAIG GLEESON XN MR WADE

PN49

And as a member of the negotiating committee is he a normal member? Is he a particularly vocal member? How would you describe Mr Allen's participation in the negotiations?‑‑‑He would be probably the second most regular speaker in the group. So he's a – attends every meeting that he's available for, unless he's on leave, et cetera, and is a regular participant in the discussion.

PN50

Then if you could, in the same way, just indicate to her Honour who Mr Simon Price is?‑‑‑Mr Price is the convenor at the Huntly Mine. He is an Alcoa employee. Again, I'm not entirely sure what the official title is with the AWU, but I believe he's also in the State branch and attends their meetings routinely.

PN51

Again, the same question, what would be your observation in respect of the role performed by Mr Simon Price during the course of the negotiations?‑‑‑He's clearly their negotiating leader and would take at least 50 per cent, if not more, of the speaking role for the AWU, most of the drafting role from what I can see, certainly most of the communications to me and the Alcoa people on the team come from Mr Price. So he's by far the – or he certainly is the most vocal of the negotiating team by a significant margin.

PN52

And then lastly if you could, for the benefit of her Honour, just indicate who Mr Willy Hope is?‑‑‑Mr Hope is the Pinjarra sub-branch, I believe, president. Again, I'm not completely sure of the titles. He's an Alcoa employee and again has been a convenor for many years and he's part of that negotiating team and has been since day one.

PN53

Then by way of the last inquiry, Mr Gleeson, what would your observation be regarding Mr Willy Hope's participation in the negotiation?‑‑‑He's at every meeting unless he's away on leave, and he's a regular participant, probably not quite as vociferous as Mr Allen or Mr Price but a regular participant.

PN54

And these are the three individuals that you identify in your witness statement as being the persons in respect of whom there has been some proposal to appoint as new bargaining representatives; is that correct?‑‑‑That's correct.

PN55

Your Honour, thank you. I have no further questions by way of evidence-in-chief.

PN56

THE DEPUTY PRESIDENT: Thank you. Mr Young?

CROSS-EXAMINATION BY MR YOUNG [2.23 PM]

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN57

MR YOUNG: Who is the branch secretary of the Australian Workers' Union here in WA?‑‑‑Well, I'm not sure. I believe Mr Zoetbrood. I don't know what your titles are, Mr Zoetbrood, as far as I understand, is the leader of the AWU in Western Australia. I don't know whether that's his title or not. Actually it is. I'm just reading a letter here from Mr Zoetbrood.

PN58

So Mr Zoetbrood is the Australian Workers' Union WA branch secretary?‑‑‑Well, according to the notification of industrial action here it's signed Mike Zoetbrood, Secretary of the Australian Workers' Union, Western Australian Branch.

PN59

All notifications of industrial action that you list, have they all been signed by Mr Zoetbrood?‑‑‑No. I'll flick though them now if you like. You'll just let me do that?

PN60

Sure?‑‑‑They all have his name on it. I can't read the signature on many occasions, but they do look like Mr Zoetbrood's signature.

PN61

And all formal correspondence from the Australian Workers' Union WA Branch, in your experience does it always come under the signature of Mr Zoetbrood as branch secretary?‑‑‑Look, I would struggle to answer that. I don't know. There's an extraordinary volume of it over the years, so I don't know.

PN62

So is it your evidence that you get official correspondence from the Australian Workers' Union that is not under the signature of Mr Zoetbrood?‑‑‑It's my evidence that I don't know.

PN63

I put it to you that the only person who can provide official correspondence from the Australian Workers' Union WA Branch is Mr Zoetbrood. Do you agree with that?‑‑‑No, I don't have the faintest idea. That's an internal AWU issue, not mine.

PN64

So if you got, for example, a notice of industrial action signed by Simon Price would you take that as an official notification from the AWU?‑‑‑No, I would not.

PN65

Why not?‑‑‑Because Mr Price is an employee of Alcoa.

PN66

So he's an employee of Alcoa?‑‑‑Correct.

PN67

Okay. Now, there was a period where there was an application before Her Honour with regards to terminating the current enterprise agreement; is that correct?‑‑‑Yes.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN68

And at the conclusion of that were there any further negotiating meetings with the AWU?‑‑‑I don't believe so.

PN69

I put it to you that on 26 September there was a meeting with the AWU negotiating committee. Do you recall that?‑‑‑I don't. It may have happened, but if – with my – I don't recall the details of the meeting, but I do believe that we told the union that we had made the changes that they had proffered and it had been consulted between Mr Zoetbrood and Mr Butterworth in particular, showed them that in the enterprise agreement, and advised them we were going to vote.

PN70

Was Mr Zoetbrood at that meeting?‑‑‑I don't believe so.

PN71

Okay. So there was a meeting held on – sorry, when do you think this meeting took place?‑‑‑I can't recall the date.

PN72

Would it have taken place on Wednesday, 26 September at the golf club?‑‑‑It was – I recall it being at the golf club, I can't remember the date of it.

PN73

And the full negotiating teams were there from both Alcoa and the AWU?‑‑‑There may have been one or two missing, but the majority.

PN74

Thank you. And you gave a presentation in electronic form, I understand, on an overhead walking through the proposed changes to the document; is that right?‑‑‑Correct. Yes.

PN75

And why were those changes made?‑‑‑There was an exchange of letters between Mr Butterworth from Alcoa, Mr Zoetbrood from the AWU. Those – well, Mr Zoetbrood said, "Here are some things we want you to address". We addressed them, we made those changes.

PN76

Is that the so-called job security letter that you attach?‑‑‑Yes.

PN77

So is it your evidence that the only outstanding issue that needed to be addressed on the 26th was job security?‑‑‑No, I wouldn't say that. The AWU clearly had a whole bunch of things, but they are the changes we made.

PN78

So there were other issues that were raised by the AWU on that meeting of the 26th?‑‑‑Not that I recall.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN79

So, for example, just looking at redundancy, in your proposed EBA the redundancy expires in the nominal term, not for the term of the agreement, not the extinction of the agreement. Was that an issue that was raised?‑‑‑Well, it's not actually correct.

PN80

Was it raised?‑‑‑I can't recall.

PN81

Okay then. What about job descriptions and the DSP?‑‑‑No, I don't recall that being raised at all.

PN82

Don't recall that either?‑‑‑No.

PN83

And what about the issue of additional hours?‑‑‑No, I don't recall that either.

PN84

You don't recall that being raised? What about the issue about sourcing or job security?‑‑‑No, I don't think that was raised either.

PN85

What about start and finish times?‑‑‑No.

PN86

What about shift change, shift allowance, retention, the so-called safety net?‑‑‑No, it wasn't raised.

PN87

So you don't remember that being discussed?‑‑‑I don't remember it, and I don't recall – I actually don't believe that any of those things were raised. What we did simply was show the folks the document, go through the changes that had been made, and noted for them that that would be a document that people would be voting on.

PN88

So is it - I just want to be very clear, is it your evidence that none of these issues were raised ‑ ‑ ‑?‑‑‑No, it's my evidence ‑ ‑ ‑

PN89

‑ ‑ ‑ or you just can't remember?‑‑‑I can't recall. I don't believe they were, but I can't - don't have an action replay or a video recording of the meeting to be 100 per cent sure.

PN90

Because our evidence will be that these matters were raised at that meeting, and it was made very clear that these were outstanding issues?‑‑‑No, I don't believe that's the case.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN91

Did Alcoa - what was the effective outcome of that meeting on the 26th?‑‑‑We showed the union folks the changes and we advised them that in our view the company had met the needs that the union had expressed and that we would take that document to a vote, and gave them some details around that.

PN92

The union had made some concessions, hadn't they, that they had put to you in writing?‑‑‑You would have to be more specific.

PN93

Have a look at MCG1, a letter addressed to you from Mr Zoetbrood.

PN94

If I can refer your Honour, for ease, to this as the concessions letter?‑‑‑Yes, I have that.

PN95

Yes, you have that in front of you?‑‑‑Yes.

PN96

That is a series of clarifications about concessions that had been made by the AWU with regards to the enterprise bargaining negotiations that were taking place. And of course this was put in the context of a terminate the agreement hearing before her Honour?‑‑‑Quite.

PN97

So these concessions that were put in this letter, did you take those up in your draft document?‑‑‑Not all of them. Some of them already existed, so they weren't concessions at all. Just going through them one by one. Some of them were already in our draft documents, so changes did not need to be made. I'm just trying to think whether any of these changed what we already had, so bear with me. We didn't agree to a cap on redundancy of 80 weeks, for example, it stayed at 70. Didn't agree to the additional hours provisions. Some of the other hours of work provisions were already in drafts that had been previously sent. Dispute settlement procedures were already in our draft. So didn't require an agreement, these things were already there.

PN98

I think you just said that at page 2, paragraph 5, Hours of Work and Rostering, that you didn't pick up the AWU's position. Is that correct?‑‑‑No, on additional hours.

PN99

That's correct, on additional hours?‑‑‑On that dot point.

PN100

And are you saying you did pick it up?‑‑‑No, we did not.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN101

Would it be fair to say that that remained an outstanding item at the conclusion of the discussions on the 26th?‑‑‑No.

PN102

Was it resolved?‑‑‑No it has just not been discussed. So it's a proposal, but it's not an offer, because, I mean, the AWU may try to pretend it's an offer, but it is not, because additional hours is not for that, it bears no recollection(sic) to the clause they've written and it's an irrelevance.

PN103

Over the page at page 3, the start and finish times, was that ever raised at the meeting on the 26th?‑‑‑I don't believe so.

PN104

And in terms of the EBA, do you recall what the draft, in broad terms, says on that?‑‑‑Yes, I believe it does have a two-hour bandwidth. I'm not 100 per cent sure, but I believe that provision is in there and has been for some time.

PN105

If I can provide the witness and the Commission with a copy of the draft EBA. I do apologise, I only made three copies, and unfortunately I need one. Can you just take me in the proposed document - sorry. Firstly, Mr Gleeson, do you recognise that document that you've currently got in front of you?‑‑‑It looks like our draft document - our proposal, sorry.

PN106

Is that document that has gone out to ballot?‑‑‑I don't know.

PN107

But it looks - - -?‑‑‑It does look like it, but I - - -

PN108

Pretty close to?‑‑‑If I check the redundancy provisions I will be clearer. Do you want me to do that? Yes, I would suggest it is because it has the new redundancy provisions.

PN109

Okay then. This is the document that probably has gone out to ballot. If you can turn to page 18, please?‑‑‑Yes.

PN110

That is headed Clause 17 Hours of Work. Can you just tell me where the issue that is at the first dot point on page 3 of the concessions letter, the so-called two-hour bandwidth of normal start and finish times, can you show me please in clause 17 where that occurs?‑‑‑It's a long clause, so it might take me a while. I can't find it.

PN111

Is it because it's not in the proposed document?‑‑‑Could be, but it is a long clause, as I said.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN112

So there's at least one issue with regards to changing of normal start and finish times that the concession letter indicates a two-hour bandwidth that your proposed document that is out to ballot does not capture. Is that correct?‑‑‑I believe so.

PN113

Just with regards to the redundancy clause, you mentioned earlier 70 or 80 weeks. Can you just explain what that was all about?‑‑‑It's a cap on a voluntary redundancy payment. If you take redundancy for somebody else's role, so you volunteer to take a redundancy package that does not belong to you technically.

PN114

So you bump someone else - - -?‑‑‑You buy into somebody else's.

PN115

Yes, you bump ‑ ‑ ‑ ?‑‑‑So somebody who does not want to leave stays, but somebody who does want to leave that is not otherwise redundant volunteers to take that package, and that is capped at 70 weeks.

PN116

Whereas the AWU concession was 80 weeks?‑‑‑That's correct.

PN117

And your draft document reflects 70, not 80?‑‑‑Correct.

PN118

I put it to you that this matter was raised with you on the 26th?‑‑‑I don't recall that, but certainly I'm aware that the AWU have claimed 80 before the 26th.

PN119

If you can have a look at the additional hours clause at the bottom of page 2 in the concessions letter. Can you just direct us in the EBA - in the proposed agreement - where the additional hours clause is an where - in effect, if I can perhaps sum that up as emergencies?‑‑‑No, it has got nothing to do with emergencies.

PN120

Isn't that that at 17.1(b), additional hours?‑‑‑Yes, so 17.1(a) and (b).

PN121

That's right?‑‑‑In (b) we talk about additional hours being to be used in respect process disruptions, and peaks, and workload (indistinct).

PN122

Okay. Whereas the AWU concession letter says:

PN123

For example, during power failures or uncontrollable events where the plant cannot be left without an incoming shift taking control.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN124

To those two positions are different, aren't they?‑‑‑They're different.

PN125

Was the AWU concession letter, or that issue of additional hours, raised with you on the meeting of the 26th?‑‑‑No, I don't believe so.

PN126

What about shift worker allowance, do you recall that being raised?‑‑‑No.

PN127

What was the effective conclusion of the meeting? From what I understand your evidence to be, you have presented the AWU negotiating team with the proposed document, you have walked through and explained the changes. What was the conclusion on the 26th?‑‑‑That we would take that document to our employees and run a voting process.

PN128

Did the AWU negotiating team or a representative on the team indicate that they agreed with the document?‑‑‑No.

PN129

Did they indicate that they endorsed the document?‑‑‑No.

PN130

So in your witness statement you seem to indicate that everything had been settled with regards to the outstanding EBA items. Just let me have a look at which statement it is. At paragraph 16, down the bottom, you say:

PN131

I need also to emphasise that at no point has the AWU indicated that the agreement that has now been put to the vote was in any material respect deficient or that it failed to adequately address the concerns raised in Mr Zoetbrood's letter dated 19 September 2018.

PN132

MR WADE: Your Honour, which is very different from putting to a witness that you've indicated that the issues are settled in the sense of expressly agreed. Doesn't say that at all.

PN133

THE DEPUTY PRESIDENT: Perhaps if we could make sure we refer to the actual evidence that has then given.

PN134

MR YOUNG: I understand that.

PN135

As of the 26th, a meeting that took place after this letter, on 19 September, there were items that were raised that the AWU indicated remained in dispute?‑‑‑No.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN136

They were all settled?‑‑‑No, I didn't say - the point of the meeting on the 26th was to demonstrate to the AWU that we have listened to the concerns that have been expressed in the exchange of letters from Mr Zoetbrood to Mr Butterworth and vice versa. We had, against our better judgement, agreed to change our EBA proposal; we have made those changes; we showed the AWU those changes, there was no interaction about all of these issues in the letter; we advised them that that proposal had been changed, show them the change, were then through the change, explained the change, answered questions on the change; and then took that document to a vote.

PN137

But there was no agreement with regards to the document, and the AWU expressly said on the 26th that they do not endorse the agreement. Is that correct?‑‑‑No, I can't say that. I am aware that they have not since then, but I'm not aware of that on the 26th.

PN138

I put it to you that on the 26th you were expressly informed by a member or members of the AWU negotiating team that: (1) there were a number of outstanding items; secondly the AWU did not agree to your proposed document; and thirdly that they did not endorse it?‑‑‑Don't recall that.

PN139

You just don't recall that?‑‑‑Just don't recall that.

PN140

Do you know who sits on the Australian Workers Union Western Australian branch state executive?‑‑‑No. I know some of our employees attend state branch meetings, but who is on the actual executive, I don't know.

PN141

Have you received any official correspondence from the AWU with regards to individual employees who have - I use the phrase, your Honour - dis-endorsed the AWU as their bargaining rep?‑‑‑Sorry, I just didn't catch the first part of that question. Could you try again.

PN142

Are you aware of any official correspondence from the Australian Workers Union with regards to employees who had dis-endorsed the AWU?‑‑‑No. The only correspondence I've got is from individual employees.

PN143

What is the nature of that correspondence?‑‑‑They are text messages to say that:

PN144

I, insert name, quoting a section of the Act, revoke the right of the AWU to represent me as a bargaining representative and appoint -

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN145

and then it either says, "We'll have Stuart Allen" - or Simon Price, depending on their location, as their bargaining representative.

PN146

I put it to you that the Australian Workers Union WA branch has indicated to the negotiating committee and has instructed them not to issue that type of instruction to individual employees?‑‑‑Yes, I wouldn't know.

PN147

You're not aware of it?‑‑‑No.

PN148

Are you aware of any official instructions from the AWU with regards to setting the cat amongst the pigeons?‑‑‑No.

PN149

And indeed at MCG10 it appears that perhaps the AWU is attempting to keep control over these negotiations?‑‑‑Is that a question?

PN150

Yes?‑‑‑Could you rephrase it.

PN151

Okay. The text message that you referred to in your witness statement, there was then a response sent by Mike Zoetbrood, and that is reflected in your MCG10. Is that correct?‑‑‑Yes.

PN152

Do you have any reason to doubt what Mr Zoetbrood has said?‑‑‑No, I don't.

PN153

Do you accept that the text message was not sent by the Australian Workers Union to members?‑‑‑The ones that I have received, is that what you mean?

PN154

You refer to two sets of text messages in your witness statement?‑‑‑Mm‑hm.

PN155

Yes?‑‑‑Correct.

PN156

The letter appears to be referring to those text messages, and in the second paragraph it says:

PN157

Firstly the letter refers to and cites a text message which it alleged was "sent by the AWU to members".

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

PN158

Do you believe that that was sent by the Australian Workers Union WA branch to its members at Alcoa?‑‑‑Well, I don't know that they specifically sent it, but then again, their members certainly were involved, including very senior members.

PN159

So was the text message, to the best of your knowledge, authorised by Mr Zoetbrood?‑‑‑I have absolutely no idea.

PN160

Was that text message, to the best of your knowledge, authorised by Mr Gandy?‑‑‑I don't know.

PN161

Was that text message authorised by Dan McCaig?‑‑‑I don't know.

PN162

Do you know of that text message was authorised by an official of the Australian Workers Union?‑‑‑I don't know.

PN163

I think earlier in your evidence in chief you seemed to be aware that Mr Stuart Allen, Mr Simon Price and Mr Wily Hope hold - I think your words were - union positions. Is that right?‑‑‑I can't recall the words, but I know who they are.

PN164

What positions does Mr Stuart Allen hold?‑‑‑He's, I believe, the deputy convener at Pinjarra Refinery. Whether he is one of those employees we release regularly for AWU stuff branch meetings, I just can't recall.

PN165

What about Mr Simon Price?‑‑‑Convener at Huntley.

PN166

And what about Mr Clifford Hope?‑‑‑He's the convener at Pinjarra.

PN167

And to the best of your knowledge those are their positions?‑‑‑Well, no, there are employed by Alcoa. As I said, I just can't recall offhand whether they're part of the group of employees that we release routinely for WA state branch AWU meetings.

PN168

Nothing further, thank you, your Honour.

PN169

THE DEPUTY PRESIDENT: Mr Wade, go ahead.

PN170

MR WADE: Just a few issues by way of re‑examination.

*** MATTHEW CRAIG GLEESON XXN MR YOUNG

RE-EXAMINATION BY MR WADE [2.51 PM]

PN171

MR WADE: Mr Gleeson, are you aware of what formal roles those individuals hold as they stated in the course of the proceedings before her Honour to terminate the agreement? Do you remember their official designations? If not, don't worry?‑‑‑I don't remember, frankly.

PN172

They're matters of record. All right. I will leave that. Just a question, then, on that issue, has anybody to your knowledge - and I understand now from my friend that there has been some other instruction to these three individuals not to put themselves forwards as bargaining reps. Has anybody, consequent upon that instruction, revoked their messages to change their bargaining rep?‑‑‑No. And I continue to get them to this day. I've had them today.

PN173

Your Honour, I think in fairness - and I can make this request at this time because it's probably the most appropriate time - if that is my friend's case, it obviously has a significant bearing on one of the grounds upon which unprotected status is asserted. We should get particulars, if not the documents where this instruction is contained, or at least some details of when this instruction was given.

PN174

It's relevant to your assessment of the probabilities; and importantly it's relevant to my conduct of the matter, given that the AWU has not filed, in accordance with your direction, any semblance of a witness statement or a submission where this issue was raised, or even foreshadowed. It's also not foreshadowed in the letter attached to the existing evidence. But perhaps if you could just park that issue for the moment, we can hear from my friend in due course.

PN175

Just a few final issues. You heard during the course of questioning that it seems the official mouthpiece of the AWU in the context of bargaining is a Mr Zoetbrood. Did Mr Zoetbrood participate in bargaining to the extent that Mr Allen, Mr Price and Mr Hope participated?‑‑‑No.

PN176

During the course of bargaining was it ever suggested that those individuals didn't have the authority to at least put forward proposals or endorse proposals made by Alcoa?‑‑‑No, that was never suggested.

PN177

Did Mr Zoetbrood, following the meeting at the golf course - and forget about the date, that's not that important - but did Mr Zoetbrood, following that meeting, write to you, as he did in respect of the job security issues, and say:

*** MATTHEW CRAIG GLEESON RXN MR WADE

PN178

As conveyed during the golf course meeting, the following remain the outstanding issues as between the AWU and Alcoa insofar as your proposed agreement is concerned.

PN179

?‑‑‑No.

PN180

Has anybody written to you or given you a minute of a meeting recording that position as emanating from a meeting at the golf course?‑‑‑No.

PN181

And by that I refer to any email, any formal letter, any informal letter, anything at all?‑‑‑No.

PN182

Has that discontent, as apparently conveyed at the golf course, ever been conveyed to you orally after the meeting at the golf course?‑‑‑The only commentary I've had was in a private meeting with Stuart Allen when Stuart said - this was last week - where we invited employees to catch up with us at the PL office and other locations for a chat about the EBA. Stuart attended and we talked privately, and Stuart said he would like the nominal term redundancy provisions to be life of the agreement. That was the only conversation we had that was remotely connected to any of this with any of the negotiating committee.

PN183

It has been, I will argue in due course, quite vaguely put to you that a whole number of issues of - or areas of discontent were raised in respect of things like additional hours, job descriptions, outsourcing, start and finish times, at the golf course meeting, without providing you with the particulars of those proposals. But be that as it may, is it your practice when given or provided counter-proposals to existing proposals, to in some other way record what those counter-proposals are?‑‑‑Yes.

PN184

Have you recorded any such counter-proposals in respect of the meeting at the golf course?‑‑‑No.

PN185

Have you in any correspondence, email, internally or externally, confirmed this alleged areas of discontent?‑‑‑No.

PN186

Had those issues been express to you in that way, as major areas of discontent, Mr Gleeson, would you have recorded them internally or externally?‑‑‑We would have recorded them internally, at least, in notes that we have, but - - -

PN187

Your Honour, thank you. No further re-examination.

*** MATTHEW CRAIG GLEESON RXN MR WADE

PN188

THE DEPUTY PRESIDENT: Mr Gleeson, you talked about the golf course meeting and said at that meeting I think reference was made that Alcoa was going to put the agreement to a vote. Do you recall what was said with regard to going to a vote?‑‑‑No. I'm hesitant, Deputy President, to say this definitely happened or definitely did not happen, but I recall very little feedback from the AWU about any of the matters put. It was pretty much, "There's the document. Here are the changes. We're going to a vote", and that was the end of the conversation.

PN189

When you said, "We're going to a vote", there were no further particulars about as to when it would be going to a vote?‑‑‑Yes, we did talk about that.

PN190

What was discussed?‑‑‑We gave the AWU a timeline for the vote, and to the best of my recollection we confirmed that timeline after the meeting.

PN191

What was that timeline come to the best of your recollection?‑‑‑It is occurring now, so the vote is open, and closes tomorrow.

PN192

In your - - -

PN193

MR YOUNG: Sorry, your Honour, can I just clarify that. I understand the ballot opened yesterday at 6 am and closes tomorrow, the 18th, at 12 noon?‑‑‑That's correct.

PN194

Thank you.

PN195

THE DEPUTY PRESIDENT: In your witness statement at paragraph 23 you say, "I was forwarded two text messages." But you do not identify whom forwarded you the text messages. Did you want to provide any further evidence to provide context with regards to the author of the text message or where you understood text messages to come from?‑‑‑The text messages were forwarded to me from an operating centre manager at our Pinjarra refinery. That manager received them from an employee who I presumed to be in his department, who obviously - I actually don't know that employee's name, and obviously I wouldn't be comfortable revealing that employee's name.

PN196

And you said it was the operating centre manager for which refinery?‑‑‑Pinjarra. Clarification manager at the Pinjarra refinery.

*** MATTHEW CRAIG GLEESON RXN MR WADE

PN197

Clarification manager. Operating clarification manager?‑‑‑We call it operating centre 2, is probably the easiest way to - yes.

PN198

Operating centre 2 manager?‑‑‑Correct.

PN199

At the Pinjarra refinery?‑‑‑That's correct.

PN200

There's nothing further from me. Is there anything further from the questions that I've raised with the witness that either one if he wishes to address? Mr Wade, no?

PN201

MR WADE: No, thank you, your Honour.

PN202

THE DEPUTY PRESIDENT: Mr Young?

PN203

MR YOUNG: Just very briefly on the text messages, your Honour.

FURTHER CROSS-EXAMINATION BY MR YOUNG [3.00 PM]

PN204

MR YOUNG: With regards to the text messages, that's the only evidence that you are giving, that is the attachments that are in your witness statements?‑‑‑I don't quite understand your question, sorry.

PN205

In terms of the evidence of the text messages, is that the only information that you are giving with regards to the text messages?‑‑‑The information in the witness statement?

PN206

Yes?‑‑‑Yes.

PN207

Thank you. Nothing further.

PN208

THE DEPUTY PRESIDENT: Thank you for your time - - -

PN209

MR WADE: Sorry, just one thing that I actually forgot to ask. It doesn't arise out of your questions. If I may?

PN210

*** MATTHEW CRAIG GLEESON FXXN MR YOUNG

*** MATTHEW CRAIG GLEESON FRXN MR WADE

THE DEPUTY PRESIDENT: Yes, you may.

FURTHER RE-EXAMINATION BY MR WADE [3.01 PM]

PN211

MR WADE: Mr Gleeson, to the best of your knowledge has Mr Zoetbrood, who has been referenced in these proceedings and in your evidence, is he present today in the Fair Work Commission?‑‑‑Yes, he is.

PN212

Thank you. Thank you, your Honour. Apologies for that.

PN213

THE DEPUTY PRESIDENT: Now you're free to stand down?‑‑‑Thank you.

<THE WITNESS WITHDREW [3.01 PM]

PN214

THE DEPUTY PRESIDENT: I think there are no further witnesses, Mr Wade.

PN215

MR WADE: That concludes the evidentiary aspect of the applicant's case. Thank you, Commissioner - sorry, your Honour.

PN216

THE DEPUTY PRESIDENT: Mr Young, do you wish to call your witness now, or do we need to address the issue of the instruction that was sent? Do you want to address that in submissions at the end?

PN217

MR WADE: I would like to understand whether my friend is in a position to disclose those instructions, or at least provide us particulars that we can either pursue that issue and/or deal with the incident.

PN218

THE DEPUTY PRESIDENT: With regard to your cross-examination of the witnesses that are about to be called, I take it - - -

PN219

MR WADE: It may well be relevant to that, yes.

PN220

MR YOUNG: Your Honour, I'm in a bit of a difficult position because the witness who had the conversation unfortunately has been sitting in the room today.

PN221

THE DEPUTY PRESIDENT: Right.

PN222

MR YOUNG: I understand that that communication was given by text to the convenors. I would be - - -

*** MATTHEW CRAIG GLEESON FRXN MR WADE

PN223

THE DEPUTY PRESIDENT: Do we have a copy of that text?

PN224

MR YOUNG: Your Honour, if you could give me two minutes to perhaps step outside and just talk with Mr Gandy. I understand he's the individual who sent a text message. If you would give me two or three minutes.

PN225

THE DEPUTY PRESIDENT: Mr Wade, do you have any opposition to there being - - -

PN226

MR WADE: No, not at all, your Honour.

PN227

THE DEPUTY PRESIDENT: ‑ ‑ ‑ so we might be able to see if we can adduce evidence of the text message that that we've had.

PN228

MR WADE: I've made the request, I must take the consequences. Thank you.

PN229

THE DEPUTY PRESIDENT: Yes, all right. We will take a short adjournment and reconvene at 10 minutes past 3.

PN230

MR WADE: Thank you, your Honour.

SHORT ADJOURNMENT [3.03 PM]

RESUMED [3.13 PM]

PN231

THE DEPUTY PRESIDENT: All right. So we had a short adjournment. Mr Young, you were going to come back to us to give us an update with regards to the text message, I think it was.

PN232

MR YOUNG: Your Honour, thank you for that. I'm advised that there was no text message issued around this issue in terms - there was just no text message issued, from what I've been told.

PN233

THE DEPUTY PRESIDENT: Okay. And when we say, "No text message issues with regard to this issue", we're talking about which particular text message referred to in the witness statement of Mr Gleeson?

PN234

MR YOUNG: That's with regard to the so-called dis-endorsement. That's what I sought clarification on from others within the organisation.

PN235

THE DEPUTY PRESIDENT: And that would be MCG8?

PN236

MR YOUNG: Sorry, if I can just go to that.

PN237

THE DEPUTY PRESIDENT: If we can just refer to the witness statement of Mr Gleeson at annexure MGG8.

PN238

MR WADE: Your Honour, I think, if I may, I think there's a bit of a misunderstanding.

PN239

MR YOUNG: Yes, we're at cross purposes.

PN240

THE DEPUTY PRESIDENT: Because I'm trying to clarify ‑ ‑ ‑

PN241

MR WADE: The reason for the adjournment was for my friend to produce the text messages he said exist which demonstrate that the AWU in its official capacity, whatever that means, actually instructed - I will call them renegades, for want of a better word - to stop recruiting for themselves, members.

PN242

THE DEPUTY PRESIDENT: Yes. I'm just referring to MCG8 to ascertain that that instruction was in response to MCG8 rather than MCG7.

PN243

MR WADE: Then you're correct, yes. Sorry. Apologies.

PN244

THE DEPUTY PRESIDENT: That's okay. It's good to clarify it. I just wanted to make sure. So there was no text message issued with regard to MCG8.

PN245

MR YOUNG: That was not issued from the AWU ‑ ‑ ‑

PN246

THE DEPUTY PRESIDENT: No, I'm not suggesting that MCG8 was issued by the AWU. My understanding was that you had made a submission that the AWU had responded to the text message in MCG8 by sending out an instruction not to dis-endorse. But now you're saying there is no such evidence of that.

PN247

MR YOUNG: That's correct. That's correct.

PN248

THE DEPUTY PRESIDENT: All right. Sorry to put you all through that.

PN249

MR WADE: Your Honour, but in response to that obviously I must just note my sincere astonishment, to be honest with you. If you put to a witness that there's an instruction, then on request from counsel you indicate: well, that instruction in text form, let me get it. And then you come back and say, "No, I'm actually wrong." With respect, then somebody is giving incorrect information to my friend about what this instruction was, for him to place it on the record that it was a text, when it's not.

PN250

THE DEPUTY PRESIDENT: Thank you, Mr Wade. I think we've clarified that, so we may now look at calling the next witness.

PN251

MR YOUNG: Thank you. Your Honour, if I can call Mr Stuart Allen.

PN252

THE ASSOCIATE: Please state your full name and address.

PN253

MR ALLEN: Stuart Lawrence Allen, (address supplied).

<STUART LAWRENCE ALLEN, SWORN [3.17 PM]

EXAMINATION-IN-CHIEF BY MR YOUNG [3.17 PM]

PN254

MR YOUNG: Your Honour, I'm told that I wasn't required to provide a written witness statement. Is that correct?

PN255

THE DEPUTY PRESIDENT: No, I don't there has been any direction from my chambers that you weren't required to provide a written witness statement.

PN256

MR YOUNG: Thank you, your Honour. I was just concerned by a comment that was made that seemed to suggest that I needed to.

PN257

THE DEPUTY PRESIDENT: I think directions were issued to the effect that parties were to file any evidence in the form of witness statements, other documentary material which they wished to rely upon prior to 1 pm, if my recollection serves me correct.

PN258

MR YOUNG: Thank you, your Honour.

PN259

Mr Allen, can you state your full name and your address, please?‑‑‑Stuart Lawrence Allen of (address supplied).

*** STUART LAWRENCE ALLEN XN MR YOUNG

PN260

Who do you currently work for?‑‑‑Alcoa Australia.

PN261

How long have you worked for Alcoa Australia, and in what capacity, and where?‑‑‑Just over 25 years, and as a process operator, and in Pinjarra.

PN262

Do you hold any positions within the union?‑‑‑Yes, I do.

PN263

What is that position?‑‑‑I'm an elected representative for the people of Pinjarra, yes, AWU members of Pinjarra.

PN264

Mr Simon Price, just very briefly explain who he is, where he works, and if he holds any position within the union; and if so, what that position is?‑‑‑Simon is a convenor at the Huntley mine site. Yes, as far as I'm aware that currently is a full‑time role.

PN265

Does he hold any other position?‑‑‑No.

PN266

And what about Clifford Hope?‑‑‑Wily is the convenor at the Pinjarra site.

PN267

I think, just so we can get some commonality between us, Mr Gleeson in his witness statement indicates that the 2014 AWU agreement was certified back in 2014 and has a nominal expiry date of 31 March 2017. Do you agree with that?‑‑‑Yes.

PN268

And the AWU is a party to the 2014 AWU agreement?‑‑‑Yes, we are.

PN269

And the parties, that is the AWU and Alcoa, have been in negotiations since around about December 2016?‑‑‑Yes.

PN270

And that the AWU and employee reps who had been attending negotiations are Brad Gandy, Simon Price, Shannon Kelly, yourself, Chris King, Phil Rossman, Darren Leigh, Jai Natham, Andy Hacking, Glen Hassom. Is that correct?‑‑‑And Wily Hope.

PN271

And Wily Hope. And in negotiations since December there have been about a total of 50 negotiating meetings, an IBB session as well?‑‑‑Yes.

*** STUART LAWRENCE ALLEN XN MR YOUNG

PN272

And there has also been a number of stoppages, and I think there was one long stoppage at about - how many days was that stoppage?‑‑‑I think all told the majority of people started to return to work after 53 days, somewhere around there.

PN273

And that Alcoa sought an application in the Commission to terminate the agreement?‑‑‑Yes.

PN274

At the conclusion of the termination of the agreement hearing were there any further meetings with Alcoa?‑‑‑There was one I remember.

PN275

Can you remember when, where, and with whom that meeting was?‑‑‑That was the 26th, it was a Wednesday, it was at the Meadow Springs Country Club Retreat.

PN276

Who attended?‑‑‑The negotiating committee from both sides, the AWU negotiating committee and the Alcoa negotiating committee.

PN277

About what time did it kick off, and what happened throughout that? Broadly what happened in that meeting?‑‑‑I think we got there about 10 o'clock. We had a meeting amongst ourselves as the committee. The company I believe rolled up about 12 o'clock, where Matthew Gleeson then proceeded to inform us that they had taken consideration of concerns that we had raised and they had made some changes to the document as it currently stands, and he proceeded to show that - walk us through the document, basically, page by page, only on the clauses that they had made referrals to that they had changed.

PN278

And you say he walked you through the document. How did he do that?‑‑‑It was on a - it was projected onto a screen from his laptop.

PN279

Were there any objections raised by the AWU; and if so, what were they?‑‑‑Yes, there were a few. From memory one was about the nominal term in referral to the forced and unforced redundancies, and it was raised as a concern. Another concern was around the changing of current job descriptions, the ability for the company to change current job descriptions and the wording around that. There was one, I think there was a concern around the additional hours being expected. There was a concern also raised about the contract - our ability to still contract out or work without having a manning number, was a concern. I think there was another one about - you're testing my memory. There was another one I think around the fact that the company could move someone from a shift to a day rate without any financial safety net for that individual. I'm sure there's more, I'm just struggling to remember.

*** STUART LAWRENCE ALLEN XN MR YOUNG

PN280

Just to clarify, these matters were raised as issues of concern with Alcoa on the 26th?‑‑‑Correct.

PN281

What was the conclusion, in effect, of that meeting? What was the outcome?‑‑‑Obviously they listened to our concerns, but at the end of the day basically we were told that this was the best offer that Alcoa were prepared to offer, and they were going to send that document out to the membership to vote on.

PN282

Did they indicate what the period would be and when the voting would actually take place?‑‑‑I don't recall them saying when that will happen, no.

PN283

Has the proposed EBA gone out to ballot?‑‑‑Yes, it has.

PN284

Do you know when the voting period opened and when it ends?‑‑‑It opened at 6 am on the 16th and it closes at 12 pm on the 18th.

PN285

Have you been on site at Pinjarra yesterday, which was the 16th, and earlier today?‑‑‑No.

PN286

Have you been talking to employees with regards to the ballot?‑‑‑Yes.

PN287

What sort of feedback are you getting around that?‑‑‑The indication that it's going to be a relatively strong no vote.

PN288

I can take you - do you have a copy of Mr Gleeson's witness statement in front of you?‑‑‑No, I don't.

PN289

Your Honour - - -

PN290

MR WADE: I can make one available, your Honour.

PN291

THE DEPUTY PRESIDENT: Yes, please. Thank you, Mr Wade.

PN292

MR WADE: I will just take the liberty of marking it A1.

*** STUART LAWRENCE ALLEN XN MR YOUNG

PN293

MR YOUNG: I don't think that was formally tender, was it, your Honour?

PN294

THE DEPUTY PRESIDENT: Yes, it was.

PN295

MR YOUNG: It was?

PN296

Mr Allen, if you can have a look at that, please, and if you can go to MCG7.

PN297

MR WADE: It's at page 36, your Honour, for the assistance of the witness.

PN298

THE DEPUTY PRESIDENT: Thank you.

PN299

MR YOUNG: Do you recognise that text message?‑‑‑Yes, I do.

PN300

Do you know who sent it?‑‑‑Yes.

PN301

Who sent it?‑‑‑It would be me.

PN302

Were you authorised to send that by Mr Zoetbrood, Mr Gandy, or Dan McCaig?‑‑‑No, I was not.

PN303

If you can turn to page 40, please, which is MCG8?‑‑‑Yes.

PN304

Do you recognise that?‑‑‑(No audible reply)

PN305

Again it appears to be a text message?‑‑‑Yes.

PN306

Do you recognise that, and do you know who sent it?‑‑‑Yes, I do.

PN307

Who sent it?‑‑‑I believe Simon Price.

PN308

Sorry?‑‑‑Simon Price, I believe.

*** STUART LAWRENCE ALLEN XN MR YOUNG

PN309

To the best of your knowledge was Mr Price authorised or instructed or directed by Mr Zoetbrood, Mr Gandy or Mr McCaig to send a text message?

PN310

MR WADE: Your Honour, a question this witness can't possibly or conceivably answer.

PN311

MR YOUNG: Do you know who sent it.

PN312

Who is Mr Zoetbrood?‑‑‑He is the state secretary for the AWU.

PN313

Who's Mr Brad Gandy?‑‑‑Brad Gandy is the - he changes his titles a lot, so I'm not quite sure where he is at at the moment. I know he holds a couple. He's Mike's number 2IC.

PN314

Assistant secretary?‑‑‑Assistant secretary, yes.

PN315

Does he have coverage of Alcoa?‑‑‑No, he does not. Yes, we have an Alumina organiser as well.

PN316

Who is the Alumina organiser?‑‑‑That's Dan McCaig.

PN317

With regards to any official correspondence from the Australian Workers Union, who does that come from?‑‑‑It comes from Mike directly.

PN318

So for example could become - I just want to be very clear now. It couldn't come from Simon Price?‑‑‑No.

PN319

So for example a text message from Simon Price would not be an official instruction or direction from the Australian Workers Union?‑‑‑No, it would not.

PN320

The AWU formally issued an indefinite stoppage - a notice of an indefinite stoppage to commence at 17:00 on the 17th. Are you aware of that?‑‑‑Yes, I am.

PN321

Are you aware of why this notice was issued, and any of the background to it?‑‑‑The notice was issued once again to try and influence Alcoa into negotiating a reasonable agreement. We thought the timing appropriate as that would be after the ballot is done and dusted, and basically our belief is that there would be a fairly significant no vote to it, so it was merely to show Alcoa that we're still here, more or less.

*** STUART LAWRENCE ALLEN XN MR YOUNG

PN322

If I can just perhaps go back very briefly to the 26th. You recall that there were a number of outstanding items that were not agreed at the conclusion of that meeting?‑‑‑Correct.

PN323

And that Alcoa said words to the effect of, "It's as good as you're going to get. We're going to send it out to ballot"?‑‑‑That's correct.

PN324

Thank you, your Honour. Nothing else.

CROSS-EXAMINATION BY MR WADE [3.33 PM]

PN325

MR WADE: Mr Allen, perhaps two things that spring out at me, as it were, is your evidence under oath before her Honour that every time the negotiating committee agreed during the course of lengthy meetings - more than 50 of them - to a bargaining proposal, you need to pick up the phone and ask Mr Zoetbrood if he approved of your consensus?‑‑‑I don't understand the question, sorry. Can you rephrase it.

PN326

Is it your evidence that every single time the negotiating committee, which was specifically to negotiate an agreement, every time they reached agreement on anything, no matter how minor, you had to first pick up the phone or text or email Mr Zoetbrood to give his consent to the negotiating committee agreeing to the proposal?‑‑‑No.

PN327

I thought not. You said that the notice - just to make certain we are all talking about the same document, if you could look at the witness statement of Mr Gleeson that you have in front of you, the actual notice to which reference was made, the notice to commence a stoppage on the 17th, that's tomorrow. And that, you will find at page 24. If you don't mind turning to that. What that basically says is, "We, the AWU, will be taking indefinite stoppage. It will be ongoing until notified. It will be taken by all members", underlined. Correct?‑‑‑Correct.

PN328

It goes on to say it is taken to support or advance claims made in respect of enterprise negotiations. You didn't issue this notice, did you?‑‑‑No, I did not.

PN329

We consulted in respect of its issue?‑‑‑Yes.

PN330

And you agreed to it being issued in respect of 17 October and beyond?‑‑‑Yes.

PN331

Before this there was a series of notices which were pulled, as it were, withdrawn. Is that correct?‑‑‑I believe there was one.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN332

Yes. That was also an indefinite stoppage. Correct?‑‑‑I don't think that was an indefinite one, sorry.

PN333

Well, what was it? Do you remember?‑‑‑38 hours, maybe. I can't remember off the top of my head.

PN334

And that was also in respect of all members, underlined. Correct?‑‑‑I haven't got a copy of that one here, I don't think. Is this it, the next one along?

PN335

No, not that I'm aware of?‑‑‑Sorry, I don't know the notice that you're talking about.

PN336

Were you a party to or consulted in respect of that notice being issued and then withdrawn?‑‑‑We do consult with one another around notices, yes, we do.

PN337

And you can confirm that - do you know when that notice was intended to take effect?‑‑‑As I said, I couldn't tell you off the top of my head right now.

PN338

Can you enlighten us all about the reasons why it was withdrawn?‑‑‑I would have to remember the notice. I can't remember the specific notice itself, as to why we withdrew it. Was it a notice that was withdrawn and replaced with an indefinite stoppage?

PN339

MR YOUNG: Sorry, your Honour, which particular notice being referred to? No document has actually been put to this witness. I mean, each of the notices are signed by Mr Zoetbrood, not by Mr Allen, so it may be that Mr Allen has some peripheral knowledge of the notices being issued and/or withdrawn, but being asked for specific detail without firstly at least having the document in front of him places him at a significant disadvantage.

PN340

THE DEPUTY PRESIDENT: Mr Wade.

PN341

MR WADE: Your Honour, the witness has confirmed that there was an earlier notice. I'm trying to gauge, without reference to a document - and that's part of the purpose of cross-examination, is to test a witness, including on his credibility, whether he actually recalls it, can he give specifics on it, and was he party to the reasons why was withdrawn? If he can't deal with those issues, that's not an issue of unfairly put in detail to do the witness, those are big issues which he can either address or can't.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN342

THE DEPUTY PRESIDENT: Yes. No, I'm happy for you to proceed.

PN343

MR WADE: So you can't enlighten us about the withdrawn notice?‑‑‑No, I'm sorry, I can't remember.

PN344

What you do say about the notice which is due to take effect this afternoon at 5 o'clock is that the reason why it was issued is that because the AWU wanted to influence Alcoa after the ballot was "done and dusted". Correct?‑‑‑Well, not ‑ ‑ ‑

PN345

MR YOUNG: There was no evidence?‑‑‑Well, yes, not done and dusted. I mean, the ballot still doesn't close until 12 o'clock on the following day.

PN346

MR WADE: Mr Allen, I'm merely taking you on your own evidence. Your evidence your evidence was the reason for choosing - - -?‑‑‑When we put balance out - - -

PN347

May I finish, Mr Allen?‑‑‑Yes, you may.

PN348

I'm going to give you the courtesy of responding in full, and I would like - - -

PN349

MR YOUNG: Your Honour, this is going beyond cross-examination and is delving into bad manners and badgering. Can the representative for Alcoa please treat this witness with an element of respect and not badger and bully him.

PN350

MR WADE: Your Honour, I will leave you to assess the characterisation of what my learned friend has put. I submit that's a completely fair approach to a witness not allowing somebody to complete a question. But if it assists my learned friend, I will perhaps try not to be as overt as is my normal custom.

PN351

Mr Allen, your evidence was that the specific purpose behind issuing the notice when it was issued and in respect of what it is issued was to try and influence Alcoa after the ballot was done and dusted?‑‑‑To let them know that we were still there and we were still ready to have a blue if we didn't get a reasonable agreement.

PN352

All right. So what you're really saying is when you issued the notice you wanted to in some other way pre-empt the outcome of the vote which hadn't yet started. Is that your evidence?‑‑‑Well, it's not - you know, I mean, I'm fairly confident that we were getting a strong no vote, hence the action.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN353

Except the notice was issued long before the vote?‑‑‑Yes.

PN354

So if your purpose was - - -?‑‑‑You've got to remember they send out - - -

PN355

If I may finish?‑‑‑Okay.

PN356

If your purpose was to somehow, after getting feedback that this is going to be a no-show or a no go from a vote perspective, then you would have done that long before the vote started, not on the day before the vote closed?‑‑‑No. We choose when we put notices in. We put notices in for strategic reasons. And at the end of the day the members had already advised us as to what their voting preference was going to be prior to the document coming up to the actual vote.

PN357

So you want her Honour to accept two things: (1) it's purely coincidental that the strike in effect starts in its main aspect on the same day as a nationwide union campaign; that's coincidental, is it?‑‑‑I would call it good luck, that's my opinion.

PN358

Sorry?‑‑‑I would call it good luck, at the end of the day. There was no intention around that, in putting that notice in.

PN359

And the second thing you want her Honour to accept is that you decided to make it effective in the middle of the vote because that was in some other way going to affect Alcoa after the ballot was done and dusted, to quote your words?‑‑‑My rationale for accepting it on the first day is that we have a U day at Alcoa and Pinjarra on the Thursday, so that makes - when we discuss notices, you know, makes it more favourable.

PN360

I will deal with it in submissions, Mr Allen. Is Mr Wily Hope present in the Fair Work Commission today?‑‑‑Yes, he is.

PN361

Is it Mr Simon Price present?‑‑‑No, he's not.

PN362

Do you know where he is?‑‑‑No, I don't.

PN363

You also hold the position of vice president of the AWU Pinjarra sub branch. Is that correct?‑‑‑Correct.

PN364

Does that make you an official?‑‑‑No.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN365

What does that make you?‑‑‑I don't really know. We've had various debates on that.

PN366

But you're part of the Western Australian branch executive?‑‑‑Yes, I am.

PN367

That's an official, Mr Allen?‑‑‑Not as the president. I'm not there because I'm the president.

PN368

Yes. No, well, I'm only quoting the term official to president. But for example, Mr Zoetbrood is the branch secretary?‑‑‑Correct.

PN369

Is he an official?‑‑‑Yes.

PN370

Is Mr Andy Hacking as the branch president an official?‑‑‑I don't believe so.

PN371

Not. Is Mr Brad Gandy, who is the branch assistant secretary an official?‑‑‑I believe so.

PN372

Why isn't Mr Hacking, who is the branch president, an official?‑‑‑I don't know whether it's to do with he's not employed by AWU.

PN373

Are these designations of convenience? In other words, you're a convenient official when you have to be, but if you don't have to be or it's not convenient to be, then you're not an official, Mr Allen?‑‑‑I couldn't answer that. I don't know.

PN374

But no disrespect, sub-branch president sounds to me fairly high up within a branch structure?‑‑‑Yes, it does.

PN375

I would think that given that designation, you must know what you are. And if you're not an official, tell me what you are?‑‑‑I'm the elected representative for the branch at Pinjarra.

PN376

Was Mr Price telling the truth in the previous positions before her Honour where he indicated that the negotiating committee comprising, amongst other people, yourself and himself, were effectively representing the interests, broadly constructed, of the AWU as an institution?‑‑‑I don't understand the question. So Mr Simon Rice telling the truth ‑ ‑ ‑

*** STUART LAWRENCE ALLEN XXN MR WADE

PN377

Yes, when he says that the negotiating committee, and himself as part of it, were representing the AWU in the bargaining meetings that - the numerous bargaining meetings that occurred in the context - - -?‑‑‑We don't represent the AWU, we represent the AWU membership.

PN378

Yes, but you are representing the AWU's members as the AWU?‑‑‑No, I dispute that.

PN379

Well then, tell me how ‑ ‑ ‑ ?‑‑‑Sorry?

PN380

Then explain to me how does work?‑‑‑Well, we are the elected negotiating committee for the AWU members and we answer to the state office at the end of the day. We take direction from our membership. We pass that information onto the state office and the state office are the - yes.

PN381

But that's the point, isn't it? If your members, say, adopt a certain position, you're duty bound to do so?‑‑‑What do you - sorry, I don't understand.

PN382

Well, if the members say, "We want 2 per cent per annum", you can't go and say, "We're prepared to agree for 1 per cent", to use a simple example?‑‑‑Well, we have some ability as the negotiating committee for the membership to move on certain items around those, what we think the members - from all the information - you've got to remember we've got about 15 hundred members.

PN383

I understand that?‑‑‑We talk constantly to our membership and what we take from those members is a point of general consensus from those members.

PN384

So your answer to my question is actually, "Yes. Whatever the members in majority direct, we are obliged to put"?‑‑‑Of course we are. That's our role.

PN385

Now, in the proceedings before her Honour earlier, Mr Price was asked this question and I'm asking you this question just to see whether you and Mr Price are in agreement. Mr Price was asked this question:

PN386

Effectively did you at all times understand as a representative of the AWU that the claims in support of which you were taking industrial action must be identifiable and identified by the employer?

PN387

Mr Price responded:

*** STUART LAWRENCE ALLEN XXN MR WADE

PN388

Well, that would be seem reasonable.

PN389

?‑‑‑You have to ask that question again, I'm sorry.

PN390

Do you agree, in short, (a) that the bargaining committee acts as the representative broadly of the AWU? That's the first part of the question?‑‑‑We act as representatives on behalf of the members, not as the AWU as a whole.

PN391

Okay. So if you misbehave in negotiations, that can't be held against the AWU?‑‑‑It wouldn't put them in a good light.

PN392

For a good reason, Mr Allen. That's because you're representing their interests such as they are?‑‑‑I would disagree.

PN393

All right. The second aspect that Mr Price said would seem reasonable is that one must put forward for industrial action - there must be identifiable claims. In other words, the employer must know what is at issue and what it is to do to avert potential industrial action. Do you agree with that?‑‑‑I do certainly agree with that.

PN394

All right?‑‑‑And if Alcoa aren't aware of the issues that we have with the current document right now, I don't know how long it's going to take them to take those issues on board.

PN395

Well, I didn't suggest that to you?‑‑‑That's what your question was, wasn't it?

PN396

No. I'm asking whether you in principle agree with Mr Price, and you do. That was the extent of my question?‑‑‑I didn't answer it that way. I haven't answered that question. I would like you to ask the question again if you could, please.

PN397

I'm assuming, Mr Allen, you have had the opportunity to have a look at Mr Gleeson's witness statement. Is that correct?‑‑‑No.

PN398

You haven't looked at it at all?‑‑‑No.

PN399

Not even briefly?‑‑‑No. It's the first time I've seen it, thank you very much.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN400

So if I were to ask you to read it - which I'm not going to do - that would be the first time you're actually reflecting on its content?‑‑‑Yes, it would be probably.

PN401

Is that because you have no interest in what Mr Gleeson says?‑‑‑No, that was because I didn't know I was a witness until about 40 minutes ago.

PN402

Well, perhaps that's a reasonable reason not to read a witness statement. All right, Mr Allen. Now, as a member or given your position within the AWU's structures and negotiating committee, is it fair to say that you were at all relevant times aware of the letter that was sent out by Mr Zoetbrood and which you see at page 10 and further of exhibit A1?‑‑‑(No audible reply)

PN403

Have you seen this letter before?‑‑‑Bear with me.

PN404

Take your time to read it. I don't want to be seen to be rushing you?‑‑‑Yes, I have.

PN405

When was the first time you saw that?‑‑‑I think it was actually presented as evidence.

PN406

You think it was presented as evidence?‑‑‑At the termination of the agreement. I may have seen it before then, too, from memory. I'm just trying to recollect.

PN407

Did you see it before it was sent to Alcoa?‑‑‑I couldn't tell you. I don't know.

PN408

Did you agree with it?‑‑‑This is the one that was submitted as evidence, sorry, yes.

PN409

I'll repeat the question: did you see it and read it before it was sent to Alcoa?‑‑‑Yes, I think I got the email.

PN410

Were you asked to comment on whether you thought it was an appropriate letter? In other words, why were you sent it?‑‑‑Sorry?

PN411

Why were you sent a copy of it before it was sent?‑‑‑Because I'm on the negotiating committee and there are concessions there given by the negotiating committee.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN412

Basically what was being sought was the input of the negotiating committee as to whether or not this letter broadly accords with the position adopted by the negotiating committee in the negotiations with Alcoa?‑‑‑Representing the members.

PN413

Good. If you turn to page 15, it's an email from Mr Zoetbrood addressing the so‑called job security concerns and there are four major job security concerns. Did you see this email before it was sent to Mr Butterworth and others?‑‑‑No, I don't recall seeing this one.

PN414

All right. Can you dispute that the issues raised in this letter were issues that the bargaining committee actually held as concerns and that the membership of the AWU which it represented held as concerns?‑‑‑I would just have to take a minute and read it. Sorry, what was your question again?

PN415

Were you aware of that email prior to being sent?‑‑‑No. I don't recall it, no.

PN416

Well, let me just ask the question in an open fashion. At page 18 is a response to that email. It's a very important document for a number of reasons. It's Alcoa effectively conceding all the so‑called job security concerns. Have you seen that letter, dated 20 September 2018, which is MCG3 to Mr Gleeson's statement?‑‑‑Yes, I have seen this.

PN417

Now, Mr Allen, what you also can confirm - and please correct me if I'm putting words in your mouth - is that subsequent to this exchange and this particular letter, the basic understanding was that Alcoa would revise the existing draft of the enterprise agreement and present it at a later occasion to see whether the AWU were happy with it. That is effectively what happened on - you say the 26th. It doesn't really matter, but what happened at the golf course. You were aware of that process. Correct?‑‑‑I was aware of the process.

PN418

All right. So Alcoa are given certain concerns. They address them in this letter and effectively the understanding is that - - -?‑‑‑That - - -

PN419

May I finish? "We will put these into an agreement which we'll show you in time", because this is not an agreement, of course. This is just Alcoa putting its position in respect of those concerns in writing. Am I correct?‑‑‑Yes. The issue you have is that they haven't really addressed the concerns though.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN420

Well, that's another issue, because Alcoa say they have addressed them; but let's leave that aside for the moment. Now, the first time you saw this revised agreement was at the meeting at the golf course. Correct?‑‑‑Correct.

PN421

You hadn't, in respect of that revised agreement, sought instructions from your membership; the rank and file, the AWU members on the ground. Correct?‑‑‑No.

PN422

Well, you didn't know what was going to be put in the agreement, so you couldn't have taken instructions on anything?‑‑‑No, we didn't.

PN423

So you went there to listen. Correct?‑‑‑Yes.

PN424

To see whether this revised agreement conforms to what the AWU could consider to be a reasonable proposal in the light of two things: (1) the nine or 10 concessions the AWU had made and (2) Alcoa's response to the so‑called job security concerns. You were there to listen. Correct?‑‑‑Yes.

PN425

Now, Mr Allen, if you truly represent the interests of the members, what could you have said regarding all these matters taken up into the new agreement; if you hadn't yet properly had a mandate or taken instructions from your membership regarding the content of this document that is now revealed for the first time at the golf course?‑‑‑It wasn't changed significantly. That's the whole point. It hasn't changed significantly from the first document that they put on the table.

PN426

It has?‑‑‑Not significantly.

PN427

Well, without looking at the document - that is Mr Butterworth's letter - can you explain even in general terms what four major concessions Mr Butterworth made on behalf of Alcoa in respect of job security? Without looking at the letter, Mr Allen?‑‑‑All right.

PN428

That's important?‑‑‑The four major concerns?

PN429

Yes - the four major concessions?‑‑‑Concessions?

PN430

Yes?‑‑‑Well, I wouldn't consider any of them concessions as I've read them, as they're worded in the agreement.

PN431

Describe them, please. What are the four major concessions made - - -?‑‑‑One is about redundancies, forced and voluntary.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN432

What is the concession made in respect of - - -?‑‑‑I would like to read the document.

PN433

We will come to that. I'm not disavowing you the opportunity. What I'm testing is whether you actually know what the concessions were?‑‑‑Right. The concessions are around job security in regard to forced and non‑forced redundancies.

PN434

What is the concession that Alcoa made in respect of that issue?‑‑‑I don't understand the question.

PN435

Alcoa made a concession in its letter of 20 September. At the end of the concession, Alcoa actually says, "We believe that this addresses your concerns regarding selection of employees - - -"?‑‑‑Yes, but that's not the wording of the document.

PN436

What is the concession that was made in the letter? Can you remember it offhand, yes or no?

PN437

MR YOUNG: Sorry, your Honour, I think the witness answered that. He has firstly said, "I'd like to have a look at the document", and then when pressed he said, "That's not in the document." He has answered the question.

PN438

THE DEPUTY PRESIDENT: Mr Wade?

PN439

MR WADE: Your Honour, cross‑examination is a little bit more complicated than simply saying, "Well, put the document to a witness." Sometimes it is necessary, to argue credibility, to actually assess whether or not there is independent recall or whether what is being recalled is being recalled for reasons other than it is remembered. If I may just pursue this and I'll keep it brief.

PN440

THE DEPUTY PRESIDENT: Yes, keep it brief.

PN441

MR WADE: Mr Allen, there are four concessions made. Are you able from memory, without regard to the letter I've been referring to, to indicate what four concessions were made - major concessions - by the company?‑‑‑The reason I can't recall specifically what those concessions were was they weren't concessions at all. In the true sense of the word, in the wording in the document they were not concessions, so hence I probably don't remember exactly what Mr Butterworth sent us.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN442

Well, now I'm going to make it a lot easier for you?‑‑‑Okay.

PN443

Given that you've got such a good memory of the meeting at the golf course, can you convey to her Honour what four concessions in respect of job security were conveyed at the meeting at the golf course?‑‑‑Sorry?

PN444

Can you indicate to her Honour what four concessions were made in respect of job security by Alcoa - - -?‑‑‑Yes.

PN445

- - - at the golf course meeting?‑‑‑Well, supposed ones are about the forced and non‑forced redundancies for contracting our current work, which they're not really - they don't really provide any protection whatsoever. There is the one about contracting out of work to make people forcibly redundant. There was, from memory - what was the other one? The nominal term, that's the one I didn't like and that's why I played that off really, because the nominal term means nothing more than a three‑year term contract. So the nominal term, they said that that helped in regard to some portion of it.

PN446

Anything else that you can think of?‑‑‑I'm still thinking.

PN447

Yes?‑‑‑It has been a long negotiation process; it's 20‑odd months. I don't think their pay thing was anything to do with it as a concession. I don't even know why they put that in there.

PN448

My questions focus purely on job security?‑‑‑Union representation, because that is past of job security. There was something about the union representation, because without proper representation you haven't got job security. Forced redundancies, representation, contracting out of work - sorry, I - it will come to me.

PN449

For the sake of formality I'm going to put it to you that every single of the issues raised in the letter of 20 September were in fact included in a revised enterprise agreement and you haven't come close to summarising them accurately, but, anyway, we will leave that for argument. If I may ask you this question, Mr Allen - - -?‑‑‑Yes.

PN450

Do you have any document, whether scribbled on the back of a cigarette box or whether written on a notepad or in an email to one of your friends or to a fellow official or non‑official or union member, which records what you say were the areas of disagreement - - -?‑‑‑Yes.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN451

- - - raised by the union?‑‑‑Several, I think, from memory.

PN452

You have several?‑‑‑From memory, I would have, yes. There is a lot of disagreement in that document.

PN453

You say those disagreements are recorded?‑‑‑We have raised the issues of concern numerous times with Alcoa.

PN454

That wasn't my question, Mr Allen. My question is confined to the golf course meeting. Do you have any sort of record - - -?‑‑‑On that one specific day are you saying? That one day?

PN455

Yes. Do you have any sort of record - a subsequent letter, an email, a minute which you sent to the company or which you sent out to your membership - anything to record what areas of disagreement you say were raised at that meeting?‑‑‑No, no, I don't think I have.

PN456

You would have kept notes of that meeting?‑‑‑I didn't take a notepad to that meeting. It was purely Alcoa there to present us with the document that they were going to send to their employees. That was all we were there for.

PN457

So then nobody - - -?‑‑‑We raised concerns through the process and that was it.

PN458

Apologies. So did nobody in the AWU delegation actually make a note of what Alcoa was presenting as the now, from their perspective, final enterprise agreement which they said met your concerns?‑‑‑I'm sure there were people taking notes. I just wasn't.

PN459

I'm not going to ask you to explain where those notes are, because obviously you can't answer that question, but you took no notes?‑‑‑No.

PN460

So what you're saying about what was discussed is purely from your memory of what you say was discussed?‑‑‑That's correct.

PN461

I must put it to you formally because it's my duty, Mr Allen, that none of those issues were raised in that meeting. Effectively what happened is Alcoa made a presentation of what is in the revised agreement, which you listened to and which was then subsequently - you were subsequently informed that this is what is going to be put to the vote?‑‑‑I was there at the meeting, you weren't. I'm sorry, but - - -

*** STUART LAWRENCE ALLEN XXN MR WADE

PN462

THE DEPUTY PRESIDENT: Sorry, can you answer the question though, because I don't believe that was an actual answer?‑‑‑I don't understand the question.

PN463

Can you please - - -?‑‑‑I didn't take notes - - -

PN464

- - - ask the question again, Mr Wade - - -?‑‑‑ - - - but I do remember what went on at the meeting.

PN465

I'm talking. I think you put something to the witness and I would like the witness to actually answer the question.

PN466

MR WADE: I can repeat what I put to you. It's the fundamental proposition. The fundamental proposition is that during the course of the golf course meeting the AWU and the people representing the AWU at that meeting did not respond to Mr Gleeson's presentation as to what the proposed new agreement contained?‑‑‑Yes, we did.

PN467

Could I, if you don't mind, just take you to page 36 of exhibit A1?‑‑‑Yes.

PN468

I understand you're the author of that document?‑‑‑That is correct.

PN469

What is the reference to "Wil" with one "L"?‑‑‑Wil, being Wil Hope, a convener at the site.

PN470

Now, this was forwarded to people; I understand to a lot of people. Is that correct?‑‑‑It was forwarded to my stewards, which is probably about 60 stewards.

PN471

It references there crews. Correct?‑‑‑Yes.

PN472

The idea being that they should disseminate this information. That was the reason why it was forwarded?‑‑‑They pass on the information; that's how we communicate with such large groups.

PN473

In this text message you discuss the negotiating committee and, amongst other things, why it would perhaps be a good idea to have appointed new bargaining representatives. Correct?‑‑‑Yes.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN474

This text message followed on a discussion at an all sites committee meeting held the previous Thursday, 4 October. Is that correct?‑‑‑Part of it. This was some questions that were raised from that, I think, from memory.

PN475

Well, the issue was discussed. In other words, the strategy of appointing alternative bargaining representatives was discussed?‑‑‑Yes, the rationale for that was to get Alcoa to talk to us.

PN476

As opposed to the AWU officially - - -?‑‑‑No, to talk to us, as well as the AWU.

PN477

But that was only conditional upon the vote being rejected. If the vote got up, of course there would be no need to bargain further, in which event there would be no need to appoint you and anyone else as an alternative bargaining rep?‑‑‑I don't think there's much chance of that document getting up.

PN478

That's not my question, Mr Allen?‑‑‑Sorry, was there a question in there?

PN479

There was a comment made to you about the purpose behind the meeting and whether there would be bargaining representatives - or a need for them if the agreement was voted up?‑‑‑If the agreement was voted up, there would be no need to bargaining any further, no. You're correct.

PN480

Now, this was a strategy. Correct?‑‑‑Yes, technically I suppose it is a strategy.

PN481

Who was at this all sites committee meeting?‑‑‑The all sites committee.

PN482

Including who? Was Mr Zoetbrood there?‑‑‑No.

PN483

Was any official of the AWU there?‑‑‑There could have been. I think so.

PN484

Sorry?‑‑‑There could have been.

PN485

There could have been?‑‑‑Yes.

PN486

So there is potentially AWU officialdom or officials present at a meeting discussing the strategy of appointing alternative bargaining representatives. Correct?‑‑‑If he was there, yes. I'm trying to recall who was there.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN487

Who came up with the strategy?‑‑‑Who came up with the strategy?

PN488

Yes?‑‑‑I think Willy suggested it, from memory.

PN489

Wil?‑‑‑Yes, Wil.

PN490

Mr Hope?‑‑‑Clifford Hope, yes.

PN491

Did the bargaining representatives feel there was a need to put a different position to that which is put by the AWU in its official capacity?‑‑‑I don't think there was any need to put a different position, but they don't utilise the document on a daily basis as we do. We know how the document would work in the real world, so to speak.

PN492

Mr Allen, let's not, as they say, play ducks and drakes. You are proposing, amongst others, alternative representatives. If those representatives are merely going to mirror the position of existing representatives, there is no need for them. I'm putting to you for your comment that the whole idea behind the strategy of proposing alternative bargaining representatives is to put a different proposition to that which may emanate from, as it were, the AWU official bargaining representative?‑‑‑No.

PN493

Then what is its purpose?‑‑‑The purpose was to get the company to talk to us directly, a negotiating committee, rather than talking to politicians and people who are not connected with the document in any real sense.

PN494

But you had 50 meetings with the company, plus you had facilitated bargaining?‑‑‑Correct.

PN495

So they were talking to you. That's not an answer, Mr Allen?‑‑‑No, but that's the rationale behind that. If you ask the rationale behind that, that is the rationale behind that.

PN496

So your concern was the company weren't prepared to talk to you?‑‑‑That is correct.

PN497

Why didn't you bring orders directing them to talk to you?‑‑‑I don't know. They don't have to talk to us. That is the whole point. They don't have to talk to the negotiating committee who are negotiating on behalf of the membership.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN498

They do, because you represent - - -?‑‑‑No, they - - -

PN499

If I may finish, Mr Allen. They do, because you specifically represented that, as constituted, the negotiating committee - and this is the evidence in the proceedings before her Honour - was the committee negotiating on behalf of the AWU and its membership. You were now seeking to divide up that body of negotiators?‑‑‑No way. Not at all. Not at all. We were merely trying to get the company to talk to us directly. The company refused to talk to us directly. They would talk to the state office and they would talk to politicians, but they wouldn't talk to the negotiating committee.

PN500

When did they refuse to talk to you, Mr Allen?‑‑‑They did that the last time they put the vote out, I believe. Matthew Gleeson actually made the statement that, "No, there's no point talking to you any more because the agreement that we're putting out - - -"

PN501

Well, that's a bit of a different composition than suggesting that Alcoa wouldn't negotiate with the negotiating committee. They are entitled to put an agreement to the vote?‑‑‑Of course they are.

PN502

Can you point to one instance where Alcoa refused to negotiate with the negotiating committee otherwise than in the context of putting an agreement out to the vote?‑‑‑They have refused meetings that we have requested.

PN503

Do you have any evidence of that other than what you say, Mr Allen? Any letter of discontent, any email saying, "What are you doing - - -"?‑‑‑I think I probably do somewhere.

PN504

Well, if you've got it, you're obviously free to bring it. If we turn over the page - - -

PN505

MR YOUNG: Sorry, your Honour, is that an invitation for Mr Allen to bring that evidence?

PN506

THE DEPUTY PRESIDENT: Mr Wade?

*** STUART LAWRENCE ALLEN XXN MR WADE

PN507

MR YOUNG: He has just indicated, "Well, feel free to bring it." I'm more than happy to if Mr Allen has those documents where requests for meetings have been refused by Alcoa. Mr Allen, I'm wondering how long you would require to obtain those.

PN508

MR WADE: Your Honour, this is not a formal request now to exchange documents. Can I just make this point, Mr Allen - - -

PN509

MR YOUNG: Well, sorry, your Honour, in that case, can we avoid the flippancy and just get on with it, thank you.

PN510

MR WADE: Mr Allen, did you come to the Fair Work Commission today knowing that part of the reason you were brought was to explain to her Honour the context of certain emails which suggest a division of the bargaining representative?‑‑‑No.

PN511

You didn't?‑‑‑I told you I didn't know I was going to be a witness until 40 minutes ago.

PN512

Mr Allen, you told me that you weren't aware of the content of Mr Gleeson's statement. You didn't tell me that you had no idea at all as to why you were brought here as a witness?‑‑‑I don't understand what you're saying.

PN513

Are you saying you were brought into this forum to testify under oath in respect of matters about which you had no idea, in other words, you didn't know what you were going to be asked in your evidence-in-chief? Is that your evidence, Mr Allen?‑‑‑No, you're twisting my words there, but you're very good at it. What we are here for is to make sure that we don't get our protected action ballot terminated. That is why we're here. I just happen to be the unfortunate soul that stepped forward.

PN514

Then let me repeat the question then: is one of the things you knew you were coming here to do to explain your text message which I've just referred you to? Is that one of the reasons - - -?‑‑‑Yes.

PN515

- - - why you knew you were coming here?‑‑‑I was coming here anyway.

PN516

I am moving off this topic, Mr Allen, you actually are avoiding my question?‑‑‑I'm not.

PN517

And it's an important one?‑‑‑I don't see how I'm avoiding the question.

PN518

Look at the bottom of page 37, please?‑‑‑Yes.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN519

You reference here the Change the Rules Campaign Across the Nation; agreed?‑‑‑Yes.

PN520

And you indicate the number of other unions who will be participating in that campaign?‑‑‑Yes.

PN521

Effectively, what your message does is direct to all AWU members a text which suggests that if they feel up to it, they should do the same?‑‑‑Yes, I'm an advocate.

PN522

You then, on page 38, amongst other things, emphasise the fact that a big show of solidarity will be a wake-up call for the government; correct?‑‑‑Correct.

PN523

So what you're saying, effectively, Mr Allen, is, "Join this protest", for want of a better word, or campaign, "and by doing so, you will demonstrate to the government the extent to which there is a groundswell of support for a certain view"?‑‑‑I'm merely saying that my view is, "The rules are broken and if you want to come along, come along, because I believe in it."

PN524

Is there anywhere in this text message to a number of crew leaders, who will pass it on, is there anything here that suggests commence industrial action in support of the following demands against Alcoa?‑‑‑No.

PN525

You know what that means, of course?‑‑‑No.

PN526

You, Mr Allen, as you sit here, have absolutely no way of knowing which of the employees who are going out potentially on strike this afternoon at 5 o'clock are going out to support the campaign and which of them are going out to support unspecified demands, do you?‑‑‑I don't know who's going to go out or who's not going to go out at the end of the day, it's their choice. That's part of the process, it's the individual's choice.

PN527

If they do go out, what you don't know is why they are going out?‑‑‑I don't get the relevance.

PN528

The relevance is simply this, Mr Allen: this text, in no uncertain terms, calls out employees to participate in a campaign against the government?‑‑‑No.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN529

And, as a side issue, impacts Alcoa?‑‑‑At the end of the day, if people choose to take industrial action because they've had a gutful of the way Alcoa treat them, that's what they can do, and that's why the majority of people have taken action in the past and will continue to do so, more than likely.

PN530

Do you realise the significance of taking the oath, Mr Allen?‑‑‑Yes, I do.

PN531

Do you understand what perjury is?‑‑‑Yes.

PN532

Look at the bottom of page 38?‑‑‑Yes.

PN533

In your own words, you record to leaders of employees:

PN534

Whilst it is the design to have an impact on Alcoa, it's not just specific to Alcoa.

PN535

That clearly implies that part of the process of the strike that starts today is to impact also the campaign and the government?‑‑‑No, you need to read that properly. What that means is it's not just affecting Alcoa, it's affecting the individuals that have lost money over the 50-odd days that we've been out on strike. That's why it says, "You don't have to come out", because our people have been suffering.

PN536

That's not what it says it all?‑‑‑Well, it is what it says.

PN537

It is up to her Honour to actually give it a sensible interpretation?‑‑‑Your English is different from mine because that's what it means.

PN538

Just underneath that, if you turn over the page to page 39, you say: "We have put in an indefinite notice that we, as the AWU - correct - "We have put in an indefinite notice"?‑‑‑At 39?

PN539

THE DEPUTY PRESIDENT: Refer to the bottom of page 38.

PN540

MR WADE: Sorry, Mr Allen, I perhaps have just said to turn over the page for record purposes. So, if you look at the bottom, in the middle of the page, it says "39". Your Honour, do you mind if I just walk over to the witness and assist to get the page, if you don't mind?

PN541

THE DEPUTY PRESIDENT: Yes, all right, Mr Wade.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN542

THE WITNESS: Does that say "39"?

PN543

MR WADE: Yes. Four lines from the top, it says: "We have put in an indefinite notice." My question is, the "We" is a reference to the AWU; correct?‑‑‑Yes, we are all part of the AWU.

PN544

Yes?‑‑‑Me as a member and me as a delegate.

PN545

So, in this same text where you are, in a way, encouraging a breakaway with yourself - - -?‑‑‑A breakaway?

PN546

If I may finish, Mr Allen, and you will perfectly understand my question, in the same text where you are encouraging members to break away and choose a new bargaining representative, one of them being you, of course, in that same text, you are referring to the notice of protected action that was issued by the AWU?‑‑‑Correct, we speak as a collective. That is how we speak to one another.

PN547

Yes?‑‑‑The AWU, whether you're a member, you're a delegate, you're an official, we are the AWU.

PN548

Have you been disciplined for this message? Have you been disciplined by the union because you - - -?‑‑‑Not as yet.

PN549

- - - attempted to subvert them as a bargaining representative?‑‑‑Not as yet.

PN550

Have you been spoken to by them?‑‑‑Not directly as yet, no.

PN551

All right. To carry on with the notice then, it says:

PN552

We are putting this notice not because we are planning to be out for a while but so members and crews can make the call themselves as to what they want to do. It's much easier than having specific dates and times. It's also a real pain for Alcoa because they won't know who's going and who's staying.

PN553

Mr Allen, do you know why there's a requirement in the Fair Work Act to give an employer notice of industrial action?‑‑‑Yes, to give them the heads up.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN554

But why do you give them the heads up? Do you know the underlying rationale for giving an employer the heads up?‑‑‑So they can have contingency place.

PN555

Yes?‑‑‑I'm presuming.

PN556

And you don't really want to be sending a false message, if you can help it; correct?‑‑‑No, but it's up to the individual if they choose to partake in action or they don't.

PN557

I understand that, but that's not my question?‑‑‑No? What's your question?

PN558

It wasn't your purpose to sell a dummy to the employer or to represent the industrial action as something which it was not? That wasn't your purpose in issuing the notice; correct?‑‑‑I'm struggling to follow what you're trying to say.

PN559

Was your purpose in issuing the notice - - -?‑‑‑I didn't issue the notice.

PN560

Or was your purpose in endorsing the notice or approving it in consultation - - -?‑‑‑Mm.

PN561

Can you speak to the purpose or can only Mr Zoetbrood do that?‑‑‑Well, no, I mean it's an industrial action.

PN562

Can you speak to the purpose of the notice?‑‑‑The purpose of the notice?

PN563

MR YOUNG: Sorry, which particular notice?

PN564

MR WADE: The notice that we are concerned about that authorises industrial action this afternoon at 5 o'clock?‑‑‑Indefinite stoppage?

PN565

Yes?‑‑‑Sorry, what was the question?

PN566

Can you give her Honour some information as to why exactly that notice was issued, what purpose you sought to achieve that that notice, or is that something Mr Zoetbrood must do?‑‑‑So that Alcoa know that we're still not happy with the current document as it stands. It's that simple. It's not hard.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN567

All right. Why do you put in an indefinite notice if you actually, at no point, had the intention of, as members, executing an indefinite stoppage?‑‑‑What is an indefinite stoppage, may I ask?

PN568

It is not confined to - - -?‑‑‑It's unconfined.

PN569

Mr Allen, it is not confined by time and it is not defined in the Act.

PN570

THE DEPUTY PRESIDENT: Just to note on that point, there is authority defining what an indefinite stoppage is. I don't know if Mr Wade wants to take you to that.

PN571

MR WADE: Really what you are suggesting when you say, "We are having an indefinite stoppage" is, "We are taking a stoppage, we can't tell you now how long it's going to be, it may be long"?‑‑‑It depends on the individuals, it depends on the individuals. Some individuals may say, "I'm going to stop for a fortnight", some individuals may say, "I'm only going to stop for two days because that's all I can afford to do."

PN572

I understand that, but the strike continues regardless of whether certain individuals may at some point elect to come back to work. You, in your message, specifically record that it is not the AWU's intention to be out - I quote - "for a while"?‑‑‑Well, it's never our intention to actually be out for any extended period of time. We don't like taking industrial action as the AWU, we don't like members losing money.

PN573

Do you have anything else to say about that portion or the intent behind that portion of your message, Mr Allen?‑‑‑Purely the intent behind that message is the fact that there are some people that can afford to take industrial action and there are some people that can't take industrial action, for whatever reason, and there is no malice or anything at the end of the day.

PN574

So the fact that it's a "real pain for Alcoa", to use your own words, is simply a by-product?‑‑‑Well, it is, it is. Unfortunately, that is a by-product of that.

PN575

No, what is a real pain, if you read this text carefully and properly, is the fact that you are actually proposing a strategy which doesn't conform to your notice?‑‑‑I don't understand.

PN576

That will be my submission?‑‑‑I don't understand what you're saying.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN577

Turn over the page to page 40, please, Mr Allen?‑‑‑Yes.

PN578

You - actually, you don't, Mr Willy Hope - who do you say authored this particular document?‑‑‑I believe this was Simon Price.

PN579

Who is in court?‑‑‑No.

PN580

Not in court, sorry. In this second paragraph - because he's not here, I need you to talk to this?‑‑‑You weren't happy for me to do that before.

PN581

I am now happy for you to do it?‑‑‑Okay.

PN582

So if you don't mind just answering the questions, I'll be stopped if my questions are unfair?‑‑‑Yes.

PN583

Mr Allen, firstly, was this disseminated and spread in the same way as your text, in other words, forwarded to a lot of people? It says there: "Send to members to complete"?‑‑‑Yes, I don't know, I'm not sure, not a hundred per cent sure.

PN584

MR YOUNG: Sorry, your Honour, if Mr Price were the author of this text - Mr Allen has indicated that he is not and it appears that it hasn't been sent on his phone - I don't think that Mr Allen can give knowledgeable evidence about the process of dissemination and exactly who it has gone to.

PN585

MR WADE: Your Honour, I am the furthest thing from tech savvy that you will probably come across in your professional life, but I do know that one sometimes sends SMSs in a way where it does indicate who else received it, so perhaps if Mr Allen can indicate an awareness of that and if he's not aware of it, he can simply say so.

PN586

Are you aware as to who this was disseminated, Mr Allen?‑‑‑No, I'm not.

PN587

How did you receive it?‑‑‑I don't think - I don't believe I've received this one, sorry.

PN588

Did you have any input into its content?‑‑‑No, I don't think I did.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN589

All right, so the comments here remain something that you can't comment on; is that correct?‑‑‑Yes.

PN590

Just to confirm this for record purposes, you can't answer any question in respect of the document that appears at pages 40 and 41 of exhibit A?‑‑‑I can answer questions on it. I can certainly answer questions on it, but - - -

PN591

No, but you can't answer questions as to purpose and intent and why things were said in a certain way, et cetera? Is that correct?‑‑‑Well, yes, I could.

PN592

Do you have any comment that you want to make about this? I want to give you an opportunity to be heard if you want to be heard, Mr Allen. But previously when I was questioning you on this document there was an objection. So, would you like to comment, such as you can, in admissible form on this particular text?‑‑‑I don't know if I could comment on the intent with how it's written, but I could comment on my perspective of it.

PN593

If you want to, you're free to. What do you want to say?‑‑‑There's nothing really to say about it.

PN594

Nothing really to say?‑‑‑I don't think so.

PN595

All right, then we move on. Just a few last issues, Mr Allen. Perhaps, just to place this firmly on the record, you are aware that very recently, the protected indefinite action covered by a series of prior notices has largely come to an end. In other words, most employees returned to work, correct?‑‑‑That is correct.

PN596

When did they return to work?‑‑‑All over the shop. The majority - - -

PN597

And did they return - - -?‑‑‑The majority returned on the Monday. I know there were some that went in on the Saturday night, some that went in on the Sunday. The majority went in around the Monday, but there are still certain individuals that are either not around or choose not to be.

PN598

When you refer to Monday, which Monday are you referring to?‑‑‑It was the Monday after the meeting.

PN599

Monday after the meeting of the 26th, the golf course meeting?‑‑‑No, not the golf course meeting, no. Monday - - -

*** STUART LAWRENCE ALLEN XXN MR WADE

PN600

The Monday after the Thursday meeting which occurred on the 4th?‑‑‑The Monday after the meeting at the Pinjarra football oval.

PN601

Approximately how long was that? Just for - it's not important that we get the dates?‑‑‑Two weeks, two, three weeks, I think, somewhere around there.

PN602

What I'm going to put to you, Mr Allen, for your comment, is the reason why that industrial action came to an end is effectively because - - -?‑‑‑It's not ended.

PN603

It's effectively because it was an in-principle agreement and hence the majority of employees who were previously on strike as it were are now back at work and that's why a new notice is necessary?‑‑‑Incorrect.

PN604

How many employees are, you say, currently on strike as it were pursuant to earlier notices?‑‑‑I wouldn't be able to hazard a guess at that because they may have returned. Some of them may be back at work. But, yes, some of them may have returned.

PN605

You can't talk to the reasons why they have returned, can you?‑‑‑Well, the majority of the ones that I have spoken to I can, yes. They've returned because they've run out of money.

PN606

And now they're going out on another indefinite strike potentially?‑‑‑Possibly, if they choose to.

PN607

Now, we do know that your - and this is bringing this to a conclusion, Mr Allen, so, just be a little bit patient with me - we do know that pursuant to your messages and the other texts sent about the issue of alternative bargaining representatives, you know as a fact, do you not, that many, many employees have appointed one or other of yourself, Mr Price or Mr Hope, as their bargaining representative?‑‑‑There has been a few, I believe, yes.

PN608

Sorry?‑‑‑There's been a number, yes.

PN609

There has been well over a hundred?‑‑‑No, I think the number was quoted by Matthew as 110. So, that's not well over a hundred, that's just over a hundred.

PN610

And it's early days yet, correct?‑‑‑Correct.

*** STUART LAWRENCE ALLEN XXN MR WADE

PN611

You know of no instruction issued to those workers countermanding their decision to appoint an alternative bargaining representative?‑‑‑Sorry, what was that?

PN612

You know of no instruction that has been sent out to those workers or employees countermanding, withdrawing, saying, "Don't appoint me as your representative"?‑‑‑I'm not aware of any, no.

PN613

Your Honour, may I take one moment and hopefully bring this to a close?

PN614

Sorry, just in closing, Mr Allen, when did Mr Gleeson quote a number that you're aware of?‑‑‑Where did I see that? I can't recall. Either text message or an email or something. I can't recall.

PN615

Text message to you personally?‑‑‑I wouldn't like to say that because I can't recall where I saw it, but I do remember seeing it.

PN616

All right. Your Honour, thank you. Nothing further by way of cross-examination.

PN617

THE DEPUTY PRESIDENT: Thank you. Mr Young.

RE-EXAMINATION BY MR YOUNG [4.36 PM]

PN618

MR YOUNG: After the meeting on the 26th at the golf club, was there a mass meeting held soon after that of all members? I'm just trying to get the sequence, Mr Allen?‑‑‑Yes, the dates are all over the shop. I think - I think there was from memory.

PN619

So, there was the meeting on the Wednesday and do you recall what day the mass meeting was?‑‑‑We had one recently. I can't - I haven't got my diary.

PN620

Did you attend that mass meeting?‑‑‑Yes, I attend all the mass meetings.

PN621

What was the outcome of the meeting? What was the decision of the meeting?‑‑‑Which meeting are we talking about? Is this the one about when people returned to work?

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN622

We're talking about the last, yes, the so called return to work meeting?‑‑‑Yes, well, it was basically to get the members together to see if, you know, if they wanted to continue action or if they choose to return to work, they were quite within their rights to do that. We knew at that time that people were struggling financially, so - - -

PN623

Because at that point how long had members - employees of Alcoa been out for?‑‑‑50-plus days, 53, 54 days.

PN624

So, they were struggling financially and, sorry, I interrupted you?‑‑‑Yes, so, rather than have people in that position, the point that we put across to membership - now, there was no vote at all in the sense of a vote to stop the industrial action. The industrial action remained open for those who chose to participate or continue to participate. What we said to the members is, "Listen, we understand you've been out for a long time. If you are struggling, feel free to go back in the gate." It was as simple as that. It was left to the membership at the end of the day, where it always should be.

PN625

A number of Alcoa employees returned to work?‑‑‑Quite a large number, yes.

PN626

Approximately how many?‑‑‑Over those three days, I would say 80 per cent.

PN627

Now, at that meeting, was the ballot of the EBA or the proposed agreement mentioned, talked about, raised?

PN628

MR WADE: Your Honour, I'm generally a patient soul, but I think my learned friend must first demonstrate how this arises out of confusion, ambiguity or uncertainty elicited by cross-examination. If it's merely material which he chose not to examine in chief on which I didn't touch on and which I caused no confusion in respect of, all of this is inadmissible and if it's not inadmissible in the true sense, it is worthless because I am hamstrung by not being able to address these issues in further questioning.

PN629

THE DEPUTY PRESIDENT: Yes, Mr Wade. Mr Young?

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN630

MR YOUNG: It arises, your Honour, further out of the allegation that nothing was mentioned at the meeting on the 26th with regards to outstanding matters and I'm just seeking clarification what was actually put to the members at this mass meeting some time after this so called golf club meeting. Were they told that, in effect, the EBA had been fully settled or, "Look, you're going back to work", you know, that's all I'm after. What was the view of the people who addressed the meeting with regard to the outcome of the meeting on the 26th because there seems to be a lot of debate about that.

PN631

MR WADE: Your Honour, then in reply Mr Allen could simply have told you.

PN632

THE DEPUTY PRESIDENT: Yes.

PN633

MR WADE: But, anyway, perhaps, we can deal with it in submission.

PN634

THE DEPUTY PRESIDENT: Yes. With regards to the line of questioning, I am struggling to see the relevance as to whether or not there was further discussion at the meeting of the 26th as to disputing that there was still outstanding claims. So, I'm not sure - well, I am quite sure actually that the evidence that you're not trying to adduce with regards to a subsequent mass meeting is not relevant to the meeting on the 26th.

PN635

MR YOUNG: Certainly.

PN636

Just returning, Mr Allen, to the meeting of the 26th. You indicated earlier that the union raised a number of matters, a number of concerns. You indicated as well that the AWU did not endorse the proposed document. Did you indicate as well that the union would run a no campaign? Would it actively campaign?‑‑‑I don't recall. At that particular meeting, I don't recall, no.

PN637

Is Mr Hacking a paid official?‑‑‑No, he's not.

PN638

So, he's an honorary president?‑‑‑Yes.

PN639

So, he's not paid?‑‑‑He's not paid by the AWU.

PN640

He's not paid?‑‑‑No, he's not.

PN641

And Mr Zoetbrood is paid?‑‑‑Yes, he is.

PN642

And Mr Gandy is paid?‑‑‑Yes, he is.

PN643

And Dan McCaig is paid?‑‑‑Yes, he is.

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN644

Now, at one stage during the meeting of the 26th, you said words to the effect of the document had not changed significantly. Very briefly, because I understand these negotiations had occurred over a very long period of time, when was the first draft document put to the negotiating committee and was that a live document that was updated as subject to package?‑‑‑When I say that there wasn't a significant change in the document on that, the 26th, from the previous one that they'd put out for the vote. That's what I was referring to, between those two documents. The way back original one, I can't even remember some of the content.

PN645

When had that document been put out?‑‑‑The first one?

PN646

The first one?‑‑‑I couldn't - I couldn't recall unless I look in my diary. It was some time ago. It was prior to the one that's gone out now. There was, what, two weeks, two and a half weeks this time. There was four weeks the last time. Six - two months ago at a guess.

PN647

You indicated at one stage, I think, in your text message that there had been a meeting held on 4 October. Do you remember seeing that?‑‑‑4 October? A meeting between where or - - -

PN648

If you can have a look at page 37 of - actually just before I got there, Mr Allen, when did you become aware of this application?‑‑‑This particular application?

PN649

Today's hearing?‑‑‑We heard rumours about it yesterday afternoon. We got told about it at - it must have been about 10 o'clock this morning, 11 o'clock this morning, I think.

PN650

Who told you?‑‑‑My convenor, Willy Hope.

PN651

And what did he say to you?‑‑‑He said, "Come on, we're going up to Perth. We're going to go and go to the Commission.

PN652

Okay. What time did you arrive in Perth?‑‑‑About 1 o'clock.

PN653

Whereabouts did you come when you came to Perth?‑‑‑To the State office.

PN654

What happened when you entered into the State office?‑‑‑I was shuffled into your office and told I was going to be a witness.

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN655

Again, please, so her Honour understands, did you read Matthew Gleeson's witness statement?‑‑‑No.

PN656

Were you walked through any of the content of Mr Gleeson's statement?‑‑‑No.

PN657

Did you know that you were going to be a witness in these proceedings?‑‑‑Not until I got into the office, no.

PN658

Do you have page 37 in front of you, Mr Allen?‑‑‑Yes.

PN659

You were asked before, and this is about halfway down the first paragraph:

PN660

This was discussed at the All Sites Committee last Thursday 4 October as an idea to try.

PN661

So this is a meeting of the All Sites Committee?‑‑‑That's correct.

PN662

On 4 October. Do you recall where that was held?‑‑‑It was at The Dome, from memory.

PN663

I think you said there might have been an official there?‑‑‑Yes.

PN664

Do you recall who it was? Sorry, let me ask the question this way: which official, if any, might have attended that meeting?‑‑‑Dan or Brad.

PN665

So it would have been Dan or Brad?‑‑‑Yes.

PN666

Do you recall - - -

PN667

THE DEPUTY PRESIDENT: Can you clarify who Dan or Brad is?

PN668

MR YOUNG: Sorry, it's Brad Gandy, assistant secretary.

PN669

THE WITNESS: Brad Gandy and Dan McCaig.

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN670

MR YOUNG: Brad Gandy, assistant secretary, and Dan McCaig, AWU alumina organiser, both State officials as in AWU WA branch paid employees. So, one or both of those may have been at that meeting, and I think here there is some talk of this alternate bargaining option. Do you recall Dan or Brad saying anything about that during the discussions at The Dome?‑‑‑I cannot recall, no.

PN671

There has been a lot of attempted ground made about you reflecting or representing solely the views of your members at Pinjarra and the committee merely acting as conduits for the views of the membership. What role does Mr Zoetbrood play in the negotiations?‑‑‑Not a lot. None, basically. He signs the document once it's done and dusted.

PN672

Who is the active official, as in AWU official, participant or participants in the negotiations?‑‑‑In the negotiations, it's Brad Gandy and Dan McCaig.

PN673

But Mr Zoetbrood has a very limited role? Indeed, apart from signing off, he has no formal role in the discussions?‑‑‑Correct.

PN674

Can you have a look at page 20, please, Mr Allen. Do you recognise this document? Have you ever seen it before?‑‑‑I don't think I have, no.

PN675

Okay then, that's all right. At line 3, it says:

PN676

The union endorsed it last week ahead of it going to a vote between October 16 and 18 ending 52 days of protected industrial action across five sites, principally two aluminium smelters and two bauxite mines.

PN677

I can't even add, your Honour, two and two is four, not five. Mr Allen, had the union endorsed the agreement?‑‑‑No.

PN678

Why do you say "No"?‑‑‑Because the endorsement must come from a negotiating committee at the end of the day.

PN679

A negotiating committee had not endorsed the agreement?‑‑‑Correct.

PN680

If we can turn to page 39, so we are on to your text message?‑‑‑Yes.

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN681

I think you were trying to say something with regards to your intention there. Just before we do that, do you recall the PABO application that was made?‑‑‑For the indefinite stoppage?

PN682

No?‑‑‑Or the application?

PN683

The actual application. Do you remember the stoppage types?‑‑‑Yes, there was a list.

PN684

Do you recall what the industrial stoppage types were?‑‑‑There was indefinite, there was up to 12 hours, I think, there was - there was about half a dozen different ones.

PN685

Your Honour, I think the PABO application and the decision of Binet DP is a matter of public record that the periods of industrial action, that is withdrawal of labour, were from 30 minutes to 24 hours and then indefinite.

PN686

If, for example, the AWU wanted to take a stoppage, say, of 72 hours, potentially you would only have two options, either three 24 hours or one indefinite but withdrawn - - -

PN687

MR WADE: Your Honour, these are matters for submission not being put in a way that they are obviously leading.

PN688

MR YOUNG: Your Honour, a question was put here, "Well, you never intended this to be an indefinite notice." It may well be an indefinite notice. There was a lot of pressure put on the witness with regards to this text message that, "You never intended this to be an indefinite notice."

PN689

MR WADE: I don't think that answers the objection. It has been put in a leading way, it is argumentative and, in any event, that is not what I put to the witness. What was put to the witness was the proposition, which I will argue, that the notice is a sham and a cover for something else; the real purpose is the campaign, it's got nothing to do with outstanding demands or claims. That is what was put to the witness.

PN690

MR YOUNG: Just to clarify, do you know why the indefinite notice was issued by the AWU commencing at 1700 today?‑‑‑5 o'clock?

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN691

Yes?‑‑‑Yes, so it doesn't affect our day crew workers. Some of our day crew workers, they knock off by about that time at the end of the day.

PN692

Why today? Why 5 o'clock?

PN693

MR WADE: Your Honour, I asked the witness that exact question and he couldn't answer it, so I stopped asking the questions because plainly he said he wasn't the author of it and now my friend is, in that context, seeing uncertainty. With respect, he can't do this.

PN694

MR YOUNG: Your Honour, the witness was cross-examined on the text message and was cross-examined on the issue of we have put in an indefinite notice and was cross-examined at some length around this, the issue underpinning it being what was the purpose behind it.

PN695

THE DEPUTY PRESIDENT: I do recall that he was asked about why a particular time was chosen.

PN696

MR YOUNG: But not why.

PN697

THE DEPUTY PRESIDENT: And why with regard to purpose, and I am sure that Mr Wade will correct me if I'm wrong, but my recollection is such as to the purpose as to why the industrial action was to be taken, he questioned the witness with regard to that.

PN698

MR WADE: I did, your Honour, and he couldn't elucidate the purpose behind the notice other than to say it was to go on strike. But, as to timing, as to whether it was a coincidence, those issues were addressed and no uncertainty arose out of the answers to those questions.

PN699

MR YOUNG: Is there - no, I'm not going to ask that. Thank you, your Honour.

PN700

THE DEPUTY PRESIDENT: Thank you, Mr Young. I don't think there is anything further for you today, so you are free to step down?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.57 PM]

*** STUART LAWRENCE ALLEN RXN MR YOUNG

PN701

THE DEPUTY PRESIDENT: I am aware we have been going for a couple of hours, save a short adjournment. Does anyone wish to have a 10-minute break before we start to traverse closing submissions? Mr Wade, would you like a break?

PN702

MR WADE: I don't need one, no.

PN703

THE DEPUTY PRESIDENT: You don't need one?

PN704

MR YOUNG: Can we have 10, please, your Honour.

PN705

THE DEPUTY PRESIDENT: Yes, I am happy - - -

PN706

MR WADE: I also have no objection.

PN707

THE DEPUTY PRESIDENT: Yes, no objection. Yes, so we will reconvene here at eight minutes past - a short adjournment.

SHORT ADJOURNMENT [4.58 PM]

RESUMED [5.10 PM]

PN708

THE DEPUTY PRESIDENT: All right. Let's make a start. Mr Wade?

PN709

MR WADE: Your Honour, unless invited to do so, I'm not going to repeat the submissions already filed. I'm going to submit that there are significant issues of credibility and the probabilities which are central to resolving the factual issues. I would submit, for reasons to be advanced, that Mr Allen's evidence on key issues was lacking in credibility augmented by the fact that the account he wants you to accept, your Honour, is simply not probable and not least of all because it is an account which conflicts directly with certain known objective facts which can't be disputed and which haven't been disputed. I will come to that in a moment.

PN710

We say, your Honour, that you must in this matter in assessing the overall evidence draw an adverse Jones v Dunkel inference in respect of at least the failure to call Mr Willy Hope, Mr Simon Price and last, but most certainly not least, Mr Zoetbrood. Now, can I just make a comment in respect of Mr Zoetbrood. Mr Zoetbrood, by not testifying in respect of the notice which is the subject of these proceedings and by not presenting himself to you, your Honour, has shielded himself from very important and, I'm going to submit, hard questions concerning (a) his awareness of the so‑called strategy behind the strike notice and its relationship with the campaign.

PN711

He has shielded himself quite unfairly from hard questions regarding his awareness of steps taken by these so‑called renegades and the extent to which he was aware of that strategy to appoint different bargaining representatives, and felt that that strategy could advance the overall interests of the AWU. We of course know quite shockingly, with respect, that there has been no discipline in respect of these renegades. This text which was apparently sent to them to stop doing what they were doing is non‑existent and never existed, despite what was placed on transcript, and we know as an object of fact that more than 110 former AWU members represented by the AWU have now jumped ship and chosen a different bargaining representative, being one of Mr Allen, Mr Price or Mr Hope.

PN712

The thing I think, your Honour, which best explains to all of us why Mr Zoetbrood did not have the courage of his convictions to testify under oath is evident from a few facts which have not been disputed in evidence. The first is could I ask you have a brief look at paragraph 16 of Mr Gleeson's witness statement and this is something that has been given no attention by my learned friend, quite understandably I would submit. What Mr Gleeson says amongst other things in paragraph 16, after dealing with the fact that there were no outstanding concerns - he says:

PN713

At the time a public statement was made by Mr Mike Zoetbrood on or around 28 September -

PN714

bear in mind that's two days after Mr Allen says there was this huge dispute about a whole range of issues -

PN715

and reported in various media that we stood together, we fought hard and smart and we secured the result we were after.

PN716

Then, your Honour, if you go to the actual reported speech of Mr Zoetbrood at page 20, reported in Workplace Express and not even remotely again said in evidence and not explained because Mr Zoetbrood failed to take the witness stand - if you read that, what is readily apparent is that an agreement had been struck in principle. There is absolutely no way one can read into the quoted speech of Mr Zoetbrood any suggestion that there were outstanding issues which would in any way inhibit the union supporting the deal that was struck. That is made clear in Mr Zoetbrood's reported communication.

PN717

Mr Zoetbrood - we don't know from him because he hasn't taken the witness box, but this issue, your Honour, with respect, falls directly into the broader issue of the strategy to appoint new bargaining representatives. What is clear on the evidence is that a select group of individuals, senior representatives representing the AWU in bargaining and its members, have decided - for reasons that they haven't articulated and for reasons which they haven't allowed themselves to be exposed to cross‑examination on - that they want to hive themselves off as a separate bargaining representative, or three separate bargaining representatives, to complicate life for Alcoa and undo what has been done by the AWU, and that is effectively achieve in the main consensus with Alcoa in the bargaining process.

PN718

You will not find any reference in Mr Zoetbrood's reported speech or anyone else's reported speech to any discontent, unhappiness, uncertainty or any outstanding claims or demands. Augment that fact with this: since the meeting at the golf club - let's assume it was on the 26th. I'm not even sure of that, but let's assume it was. It is now almost a month - the AWU, Mr Allen, cannot point to any email, note on the back of a napkin or otherwise, any document, any minute or anything which references what claims were asserted at that meeting.

PN719

Couple that with the fact that Mr Gleeson, who said that he can't recall any such things being put at that meeting, also has not made or retained or circulated any minute, as is his normal practice, highlighting areas of discontent communicated by the AWU. Your Honour, with respect, when you put all of that in the cement mixer, as it were, what comes out is concrete facts and the fact is tomorrow's industrial action, starting tonight at 5.00 for certain of the employees of Alcoa, has absolutely nothing to do with any articulated claim or demand.

PN720

It has everything to do with this union's motivation to join with a range of other unions in a "Change the rules" campaign organised by another union and more importantly directed not at Alcoa, which becomes collateral damage, but primarily directed at the government. The real problem with all of this of course is when you, as a senior AWU bargaining representative - which the individuals were when the messages were sent - send out a message to literally hundreds of individuals and you say to them, "Support the 'Change the rules' campaign", you have no control over why they are striking.

PN721

Your Honour, you can bet your bottom dollar that the people who are going out on strike as speak and who will be continuing to strike tomorrow are not striking over any articulated demand, because there isn't one. They are joining the campaign. They are part of the campaign. If you find on the evidence that that is a probable outcome of irresponsible text messages sent out by senior bargaining representatives, then, with respect, you will find that the industrial action is manifestly unprotected because it's for an improper purpose.

PN722

In addition, you will find that the evidence surrounding this nefarious notion of employing a strategy to undo what agreement has been reached by these three new bargaining representatives who already have achieved significant traction, is manifestly clear evidence, your Honour, of the fact that the AWU are not genuinely trying to reach an agreement which, as set out in the submissions, is a requirement for protected industrial action. Now, your Honour, in closing I'm going to submit that you will not be seduced by this - I don't know how best to describe it - - -

PN723

THE DEPUTY PRESIDENT: Perhaps "seduction" is not the right word.

PN724

MR WADE: Well, I mean seduced in the intellectual sense, your Honour.

PN725

THE DEPUTY PRESIDENT: Good.

PN726

MR WADE: Yes, sorry. Apologies for that if - your Honour would not be persuaded - - -

PN727

THE DEPUTY PRESIDENT: Okay.

PN728

MR WADE: - - - by the evidence or suggestion that no doubt my friend is going to make that there is some mysterious distinction to be drawn between the AWU officially represented by Mr Zoetbrood, who never participates in negotiations per se, and these other senior AWU members and in some respects I think officials - whatever "officials" might mean - that, "No, they're acting on their own and this is not authorised." Well, we haven't heard from a whole lot of people about this not being authorised. Mr Allen is the only one who said that, yet nothing has happened to him. There is, with respect, no distinction.

PN729

In the absence of Mr Zoetbrood's evidence, your inference can be that Mr Zoetbrood did not take the stand because he knows that cross‑examination will unravel this strategy, which is to subvert and not promote collective bargaining and the orderly attainment of an enterprise agreement. For all those reasons, the four reasons set out in the submissions, your Honour, and subject to anything you need to ask me about, that is a summary of what Alcoa asserts. We would accordingly move for an order in the terms of the draft which has been provided to your chambers.

PN730

THE DEPUTY PRESIDENT: Yes, with regard to the draft that was provided to chambers, the stoppage period was referred to as an indefinite stoppage period. I would ask that you make submissions as to why the period would be an indefinite period.

PN731

MR WADE: Your Honour, I don't think the intention there was to inhibit the AWU from initiating industrial action going forward. There is not an indefinite ban. Provided that the order makes it plain that there can be no strike - which might already have commenced and probably has commenced - that there can be no industrial action protected on the strength of the existing notice, then the AWU must deal with the matter going forward as it sees fit.

PN732

It's not to say of course that some of these issues might not arise in the context of any future notice, but that's a matter for another day. For the moment it's not intended that that order operate indefinitely to preclude the conduct of industrial action. Does that assist, your Honour?

PN733

THE DEPUTY PRESIDENT: Thank you.

PN734

MR YOUNG: Thank you, your Honour. I note that Mr Gleeson is still with us and perhaps, your Honour, the Commission may wish to ask Mr Gleeson a couple of questions, particularly around when the ballot result will be known, because I think that has a significant bearing upon any term if you were so minded to issue an order.

PN735

The evidence and what appears to be the undisputed evidence, is the ballot closes tomorrow. Yes, tomorrow, the 18th, at midday. I understand in discussions I have had with Mr Gandy and Mr McCaig, that that is an electronic ballot. I would think, your Honour, that if the ballot were successful and protected industrial action were to continue, this type of application would almost be a non‑event for the AWU if that were the case. I think that the declaration of the ballot forms a logical end point for any term of the order and I would have thought both for Alcoa, it's employees and the AWU that, for example, no further industrial action, for example up until 2 o'clock tomorrow, would be appropriate.

PN736

It would allow Alcoa to get the results and publish them, either for or against, and of course if the AWU - as the evidence suggests from Mr Allen that it's our or his view that the ballot will probably go down, then certainly the AWU, given that this current application - or at 5 o'clock today given that that application has been suspended or terminated or ceased, we could make application for another form of action, albeit that we would have to go through the appropriate notice period. I just raise that as just a logical issue.

PN737

The other one that has been raised - and I have with me, your Honour, a number of conveners. They are telling me that it will be extremely difficult to get the night shift back. They are saying to me that the best method that the AWU - it's a very broad concept now. I include the conveners in that - the best way for us to communicate with employees is through the conveners and through an SMS tree that the conveners have through the stewards and into the employees. I think you've heard evidence from Mr Allen with regard to that.

PN738

We would say, your Honour, that any form of communication to members - and if perhaps I can just refer you to paragraph 6 in the service of orders. Paragraph 6(a), given the time difference, your Honour, if an order for example were issued to the national office, I think it would sit on the fax machine or potentially in someone's email account given the three‑hour time difference. Again given the time difference, if you were to make an order tonight, I suspect if it were either sent by fax or email it will sit in that account. Also there will be the practical difficulties of attempting to get the night shift back in any event.

PN739

We say, your Honour, that with regard to the service of the orders, certainly (b)(1) I think is probably appropriate; (b)(2), noticeboards, certainly. With regard to (b)(3), your Honour, certainly, "A text message in the following terms is sent by" - remove "the company" and replace it with the words "by the union to the mobile phone number of the member." Either we can send that out, your Honour, through the conveners or, alternatively, we would ask that if the company wishes to send it out, that it not be a message from Mr Zoetbrood, the branch secretary of the AWU; that if the company is sending it out through their system, that it be a message from the company.

PN740

We are quite prepared to send a message out through our own system under the signature of Mr Zoetbrood, but we feel that it is inappropriate for it to be sent out under the company's network, for lack of a better phrase. Broadly speaking, your Honour, that reservation with regards to Mr Zoetbrood under the company applies to (b)(3), (b)(4) and (b)(5).

PN741

So, practicality of recall, we do have a method of being able to inform our members. I am assuming that the employer would inform its employees. Given that there may now be a number of employees who are not members of the AWU, I think that C is an appropriate order to make, if you were so inclined to make an order.

PN742

Your Honour, like so many things, this is a matter of the facts and I have got to say that my cement mixer, I think, is a little bit different to that of Alcoa's. I think it's clear that there was a meeting on the 26th, a couple of days after this correspondence was entered into, and it was pretty clear, irrespective of which witness you look at, be it Mr Allen or Mr Gleeson, that this was the final document that Alcoa had finally amended and they indicated, "We are putting this out to ballot."

PN743

There is some apparent dispute with regards to were matters in dispute at that meeting. Interestingly, Mr Gleeson doesn't say that was never said, what he says is, "I don't remember" and, interestingly, he doesn't have any minutes, any notes, any emails, as allegations and accusations have been made by the representative for the other side with regards to Mr Allen recording this meeting on the 26th, but Mr Allen, under some fairly ferocious cross-examination, maintained the position that there were a number of matters that remained outstanding.

PN744

Your Honour, even if you disagree with Mr Allen and say that that conversation did not take place on the 26th, I would suggest that looking at MCG-1, the so-called concessions letter, and a couple of issues in there were raised, so I brought to Mr Gleeson's attention issues, for example, around additional hours, I brought, for example, your Honour, issues around the cap on voluntary redundancy, 70 and 80 weeks, and Mr Allen was adamant with regards to the nominal term issue in the proposed draft document.

PN745

So, there are a couple of things that are contained in the concession letter that are not contained in the proposed draft. For Alcoa to say, "Look, it was all solved and there was no dispute", on the clear evidence, subject to fierce cross-examination, Mr Allen did not resile from the position that there were a number of matters still in dispute and we did not endorse the document. He was very clear on that.

PN746

I think, your Honour, that you can find, on the evidence before you on balance of probability, that Alcoa has been aware of outstanding claims for a significant period of time. Indeed, Mr Gleeson's witness statement indicates, and I think, your Honour, you would probably be aware of this in any event from the termination application, but, at paragraph 11, he says a total of over 50 meetings, two FWC‑assisted processes, including 12 meetings conducted under IBB.

PN747

Clearly, the parties are aware of, I think, their respective positions and where they have, I suspect in some regards, agreed to disagree, and that is what the meeting of the 26th represents. This is our bottom line. We have listened to the rejected ballot. Mr Allen indicated a ballot had been put out by Alcoa some two months earlier, or thereabouts - he is uncertain of the timeframe - but he said there had been an earlier ballot, the proposed document had been voted down, there had not been any significant changes. That is what he was referring to in his evidence.

PN748

There had not been any significant changes to the earlier document, and there were a large number of outstanding items when Mr Gleeson put this proposed document up on a screen on the 26th. The AWU was told, "This is the bottom line, we are putting it out to ballot", and indeed that is what has happened, the document is currently being balloted.

PN749

So, the first leg of the applicant's claim that there are no identifiable claims, we say, is make believe. Just one example, your Honour, just one, with regards to - and I only take one because I don't want to end up being here until midnight, or you, too - 70 or 80 weeks on the voluntary redundancy, a difference of opinion. The AWU's position, as clearly articulated in the concession letter, is 80 weeks. Alcoa, in its proposed document, has put 70 weeks into the document. What is the identifiable claim? 80 weeks. What has gone out to ballot? 70 weeks. Additional hours with regards to 5(a), there was some discussion around that and also, your Honour, the two-hour band width on page 3 at the first dot point, was another area of dispute.

PN750

For Alcoa to come here and say, "We don't know what the outstanding issues are", I think, flies in the face somewhat of their perverted version of reality.

PN751

THE DEPUTY PRESIDENT: Do you mind if I ask a question at this point, Mr Young, or would that interrupt your flow of thought?

PN752

MR YOUNG: Feel free, your Honour.

PN753

THE DEPUTY PRESIDENT: Submissions were made by the applicant concerning Jones v Dunkel and there was reference made - sorry, I have probably got the wrong one reference was made to what should be made of Mr Zoetbrood not being called.

PN754

MR YOUNG: Yes.

PN755

THE DEPUTY PRESIDENT: Would you like to address and respond to those submissions?

PN756

MR YOUNG: I will, if I can, later, your Honour.

PN757

THE DEPUTY PRESIDENT: All right, because I just note that you have made a point about Alcoa having a view that there were no outstanding claims, and then MCG-4 has been placed before the Commission.

PN758

MR YOUNG: Yes.

PN759

THE DEPUTY PRESIDENT: In which there is said to be some public statements. So, perhaps when you are ready, if you could please address in your submissions and respond to MCG-4 and what inference should be made with regards to the absence of Mr Zoetbrood.

PN760

MR YOUNG: Yes. Your Honour, when Mr Allen was in the witness box, I asked him the question, "Did the union endorse the document?" In the third paragraph of MCG-4, it says:

PN761

The union endorsed it last week ahead of it going to a vote.

PN762

Mr Allen has clearly indicated that was not the case, the union did not endorse it. However, turning to the issue of - and I think this is the sentence:

PN763

"We stood together, we fought hard and smart and we secured the result we are after" said the union's WA State Secretary Mike Zoetbrood.

PN764

And then I suspect the inference is the next line of:

PN765

Job security is incredibly important when you're operating in this kind of environment and that is what our members have secured with this deal.

PN766

Your Honour, there is always propaganda that is put out and, yes, with regards to obtaining the result on job security does not detract from the very clear position that there were other items still in dispute.

PN767

Clearly, job security - and I wasn't present during the termination application, your Honour, so I'm at a little bit of a disadvantage - but I suspect that the issue of job security came through loud and clear during those proceedings, but that there were other matters and that, I think, is consistent with the concession letter that was sent to Alcoa: "Look, we've got a number of outstanding matters."

PN768

Of course, the evidence was also given by Mr Allen, and this appears, on the face of it, to have occurred after the so-called return to work meeting, it appears to have occurred some time after that, although I think the date probably doesn't reflect that, your Honour.

PN769

So, yes, some propaganda, the result we were after, certainly something around job security, but it is not inconsistent with other outstanding items.

PN770

I guess, your Honour, where you are looking at and where the applicant is coming from is this was the only issue, we had nothing else, whereas the AWU are saying, "No, you knew, you knew from the concession letter and you knew because of the way you drafted your proposed agreement that you had not even come up to our concession standards, you knew that." But, yes, we certainly achieved the result that we were looking for around so-called job security, but, as I recall, Mr Allen indicated that we didn't quite get everything on that one either.

PN771

I think there is sufficient evidence before the Commission to address these issues. I don't think that you can draw the adverse inference under the - I always get confused, your Honour, between Jones and the other one.

PN772

THE DEPUTY PRESIDENT: It is Jones.

PN773

MR YOUNG: Yes, thank you. I don't think you can draw that adverse inference, I think there are other matters within this.

PN774

Your Honour, with regards to the SMS from the so-called leaders of the bargaining, we have, of course, MG-7 and MG‑8. One of those, the first one, MG-7, Mr Stuart Allen has fessed up and said, "Yes, that came from me." I note it took a fair bit for him to say that, given that there's no identifying marks on the text with regards to what phone number it had come from and there was no way of actually identifying in the witness statement, apart from speculation of Mr Gleeson, who it came from. Mr Allen - - -

PN775

THE DEPUTY PRESIDENT: Although he is under oath.

PN776

MR YOUNG: I understand that, your Honour, but - - -

PN777

THE DEPUTY PRESIDENT: So I don't know if it's such a big thing that he has confessed the text message was from him, given that he is under oath.

PN778

MR YOUNG: I appreciate that, but he certainly didn't gild that lily, he just came straight out and said, "Look, yes, I sent it", and he also indicated, of course, with the second text message, who had sent that one.

PN779

I think that he was quite honest in the way that he answered all the questions that were put to him. Just obviously there was a strong difference of opinion between the representative of Alcoa and Mr Allen.

PN780

Now, Mr Allen was asked. Mr Allen was expressly asked "Were you given any form of instruction from Mr Zoetbrood, State Secretary, Mr Brad Gandy Assistant Secretary, or Dan McCaig, the alumina organiser to start disendorsing the AWU and he said, "No." This may be a case and I think this may be the conclusion that you can draw is that these members of the negotiating team have perhaps embarked on a bit of a frolic of their own, certainly not under the instigation, direction, instruction, implied or otherwise from the AWU.

PN781

So that then leads into the third item which is the new so-called new bargaining reps. Again, this is not a situation where you have bargaining reps outside the current group of bargaining reps. If you have a look at Mr Gleeson's statement he clearly identifies who has been on the AWU negotiating committee and that, if you have a look at paragraph 11, your Honour, Mr Stuart Allen, who I understand may have been one of the bargaining reps who is now being directly endorsed - I don't know if Mr Simon Price was and, again, Mr Willy Hope is also on the bargaining committee.

PN782

So at a practical level - at a practical level - I think that Alcoa is jumping at shadows because these reps be they AWU reps or now potentially under the Act newly endorsed reps have certainly understood the members' position, their constituents' position, and that of the employer.

PN783

I don't think that that really has a whole stack of practical effect or practical impact at this stage upon Alcoa because tomorrow at midday we're going to know if the ballot gets up or if it doesn't and then these issues may become relevant and Alcoa has other options with regards to what it can do when these types of things start happening.

PN784

Now with regards to the fourth head, misleading or inaccurate, as to what is happening again notice on its face, speaks for itself. Industrial action is to start at 17:00 on the 17th. Now when Mr Allen was cross-examined as to the purpose he explained it. It was said it was to give members the option, indicating that some members may take industrial action and others may not. He indicated as well that there had been a previously very long period of industrial action, no wages. He indicated in his evidence that the finances were becoming a significant issue and he indicated as well that the logic or the strategy or the thinking behind this indefinite stoppage is tied to the ballot date which occurs tomorrow with industrial action starting today.

PN785

If you have no further questions, your Honour, I'll leave it at that.

PN786

THE DEPUTY PRESIDENT: Thank you, Mr Young. Mr Wade?

PN787

MR WADE: Just very briefly, your Honour. When the ballot may close or not close is irrelevant. If the purpose is improper, if some persons have been probably been misled by texts, if there is a finding that the likely purpose behind the stoppage is something other than advancing claims then the Fair Work Act directs that orders be issued. In short, if you're satisfied that as we stand here today the strike - it starts today or has probably started - is unprotected, orders must issue. There's no movement or metamorphosis whereby an unprotected strike the moment the ballot reveals a no-vote suddenly becomes protected. The remedy or a union issuing an improper strike notice is to reissue it for the correct purpose as the Act directs it be issued.

PN788

We are happy with any provisions regarding service provided they are sensible which ensure the widest most effective means of publication. So we have no issue with any suggestions which are directed at securing that objective.

PN789

Your Honour, what my friend has not addressed in submission is how if, in fact, there was a clear disagreement - and I'll put it that way - on 26 September - Mr Zoetbrood can in a published article record that he endorses what has been agreed.

PN790

Now the fact that some other bargaining representative may at some later stage have said to Mr Gleeson, "Well, we don't endorse it." It doesn't detract from the fact that on the union's own evidence the person who is supposedly the repository of all power, Mr Zoetbrood, present in court, at that point endorsed it and hasn't come to tell you under oath whether he has had a change of heart and, if so, why.

PN791

Well, to say to you, your Honour, "Yes, I'm aware of the meeting of the 26th and I know that there were a whole range of unresolved issues." Because he can't say that. Because he then must explain, "Well, why is he endorsing an agreement which must be in his members' best wishes or must exhibit or reflect his members' best wishes." Your Honour, my friend misrepresents what Mr Gleeson says. Mr Gleeson never ever says in his statement or in his evidence that we actually achieve consensus on every aspect of bargaining and every claim made by the union.

PN792

He doesn't say that. If you look - and this is actually quite important. At paragraph 16 of Mr Gleeson's witness statement he says the exact opposite. He firstly references Mr Zoetbrood's public statements which haven't been refuted. He then says the last two sentences. As a result Alcoa's proposals as conveyed - not the union's proposals or the union's original demands or every aspect of what the union wants - Alcoa's proposals as conveyed in annexure NGC were subsequently taken up into the proposed agreement which is currently the subject matter of a vote.

PN793

And it also emphasised that at no point has the AWU indicated that the agreement, meaning the proposed one, that has now been put to the vote, was in any material respect deficient or that it failed to adequately address the concerns raised in Mr Zoetbrood's letter.

PN794

So the point is simply this you've made no demands or claims and you haven't communicated them to us therefore you can't strike. That is a far cry from saying "We have an agreement on every aspect of the negotiation which is not what he says." So it doesn't avail my friend or the AWU to go on this mathematical-type analysis, "Oh, look there, your Honour. There they say they want 80 hours. Look at what Alcoa is offering - 70 - therefore there's (indistinct) agreement.

PN795

Well, that's of course true but it's irrelevant because when Alcoa said, as a package, we're putting this up to the vote nobody said, "No, hang on, Alcoa. You're taking a chance. You know we don't want 70 hours. We want 80." And consequently there's a disagreement because if that had happened Mr Zoetbrood would never two days later have in his own words said that the union endorsed the agreement and we stood together, we fought hard and smart and we secured the result we were after.

PN796

It's not a nit-picking exercise. It's an ultimate outcome to be embodied in the enterprise agreement. For that reason I don't need to address my friend's submissions regarding who you must believe between Mr Gleeson and Mr Allen regarding at 26. It's actually irrelevant. But if it is relevant you will believe Mr Gleeson. I don't remember - he said to you, "I can't for 100 per cent certainly say to you of the terms that honest witnesses use where they don't remember something being said." The better question is had it been said, "Would you have remembered it?" An answer to that is "No. I would have remembered it." If those things had been put to me in that meeting, (a) I would have made a note of it and circulated at least internally, and I would probably have remembered it. I don't remember it because it wasn't said. And what bears that out is despite this massive disagreement relied upon by Mr Allen there is not a single document over the course of the last moment recording any disagreement but there's the object of fact that Mr Zoetbrood says we have an agreement and I am endorsing that is what we want.

PN797

There is another reason you will reject Mr Allen's evidence on that score, your Honour, and that's simply this. How could Mr Allen and the other AWU representatives present at the meeting of the 26th reject Alcoa's enterprise agreement which they had never seen before that meeting without by Mr Allen's own admission first securing a mandate how did they know that their membership would not have been happy with the trade-off between securing good things on work security and perhaps losing out on the difference between 70 and 80 weeks?

PN798

So the most compelling reason on Mr Allen's evidence can't be truthful. If you accept his evidence and he's going against the union protocol which is to get a mandate before you accept or reject proposals and no one says they accepted the proposal we simply say they didn't object to it or raise claims in respect of it.

PN799

Your Honour it is no coincidence that on the union's version they expressed disagreement on the 26th. Matters go along swimmingly. There's then this groundswell of emotion to suddenly change tack and appoint new bargaining reps, subvert collective bargaining, make Alcoa's life difficult and lo' and behold is that an immediate strike after the so-called disagreement? They wait and wait and wait until they get wind of a national campaign which they think would be a good thing to participate in. Then we get the notice which coincidentally coincides with the date of the campaign. That with respect is an improbable construction of the objective facts.

PN800

If they were so unhappy on the probabilities at the meeting of the 26th and if they expressed that unhappiness as Mr Allen vaguely asserted they did why wasn't the notice issued the very next day on the 27th? And why did Mr Zoetbrood, two days later, then go out and say, "We have a deal."

PN801

Your Honour, just a couple of things. These three individuals, Mr Allen, Mr Price and Mr Hope are not to use my learned friend's terms so-called leaders - they are the leaders. Mr Gleeson's unchallenged evidence was that Mr Allen is probably the second-most important person in the context of the negotiating committee. Mr Price is the most by some distance important person in the context of those negotiations. They are the leaders and that that, with respect, actually gives lie to the suggestion that they were on some frolic of their own and in a moment of sheer madness they decided to hive-off. They hived off because they thought it could advance their position in bargaining but in doing so they overlook the fact that that is not genuinely trying to reach agreement.

PN802

That is in the words of the author of the last text, setting the cat amongst the pigeons for illegitimate purpose and not to advance collective bargaining. Thank you, your Honour. And sorry for detaining you so long.

PN803

THE DEPUTY PRESIDENT: That's no problem, Mr Wade. Thank you. I've had the opportunity to listen to the parties' evidence and the submissions. I intend to reserve my decision but I am appreciative of the timeframes that are in play. So I will look at releasing something sooner rather than later.

PN804

If there's nothing further from either party? Nothing further from you, Mr Wade?

PN805

MR WADE: No, your Honour, thank you.

PN806

THE DEPUTY PRESIDENT: Anything further from you, Mr Young?

PN807

MR YOUNG: No, your Honour.

PN808

THE DEPUTY PRESIDENT: No. Well, in that case then we are now adjourning.

ADJOURNED INDEFINITELY [6.01 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MATTHEW CRAIG GLEESON, SWORN......................................................... PN40

EXAMINATION-IN-CHIEF BY MR WADE..................................................... PN40

EXHIBIT #A1 WITNESS STATEMENT OF MATTHEW CRAIG GLEESON PN45

CROSS-EXAMINATION BY MR YOUNG........................................................ PN56

RE-EXAMINATION BY MR WADE................................................................ PN170

FURTHER CROSS-EXAMINATION BY MR YOUNG................................. PN203

FURTHER RE-EXAMINATION BY MR WADE........................................... PN210

THE WITNESS WITHDREW............................................................................ PN213

STUART LAWRENCE ALLEN, SWORN....................................................... PN253

EXAMINATION-IN-CHIEF BY MR YOUNG................................................. PN253

CROSS-EXAMINATION BY MR WADE........................................................ PN324

RE-EXAMINATION BY MR YOUNG............................................................. PN617

THE WITNESS WITHDREW............................................................................ PN700

Fair Work Commission Transcripts

C2018/5802, Transcript of Proceedings [2018] FWCTrans 469 (11 December 2018)