Home | Databases | WorldLII | Search | Feedback Australian Industrial Relations Commission Transcripts

You are here: 

BP2007/4450, Transcript of Proceedings [2007] AIRCTrans 631 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17747-1

COMMISSIONER RAFFAELLI

BP2007/4450 BP2007/4451 BP2007/4449

s.451(1) - Application for order for protected action ballot to be held
Transport Workers’ Union of Australia
and
Gate Gourmet Services (NSW) Pty Ltd
(BP2007/4450)

s.451(1) - Application for order for protected action ballot to be held
Transport Workers’ Union of Australia
and
Gate Gourmet Services (NSW) Pty Ltd
(BP2007/4451)

s.451(1) - Application for order for protected action ballot to be held
Transport Workers’ Union of Australia
and
Gate Gourmet Services (NSW) Pty Ltd
(BP2007/4449)

SYDNEY

9.40AM, MONDAY, 12 NOVEMBER 2007

Hearing continuing

MR M AIRD: Thank you, Commissioner, I appear for the Transport Workers Union of Australia.

MR D HOULIHAN: If it pleases the Commission, I seek leave as agent to appear on behalf of the three named employers, if it pleases the Commission.

THE COMMISSIONER: Any objection?

MR AIRD: No objection, Commissioner.

THE COMMISSIONER: Leave is granted. Yes, Mr Aird.

MR AIRD: Commissioner, can I just enquire at this stage just - they’re all listed at the same time we wouldn’t be presenting the same evidence in each matter and I’m just assuming - I know the Commission has some understanding of the background of this application - that the matters would be dealt with jointly.

THE COMMISSIONER: Well, they’re separate matters but we’ll deal with the one set of exhibits or submissions, yes.

MR AIRD: Thank you. Commissioner, I can - it’s the TWU’s submission that in each of the matters before you, matter 4198, 4199 and 4200, all of the requirements for a secret ballot application being granted have been met.

THE COMMISSIONER: Do you have different numbers?

MR AIRD: Sorry, I have actually referred to the notices of initiation of bargaining periods. I apologise, Commissioner.

THE COMMISSIONER: That’s fine.

MR AIRD: In matter numbers 4449, 4450 and 4451.

THE COMMISSIONER: Yes.

MR AIRD: Apologies, Commissioner. It’s the union’s submission that all the prerequisites for granting a secret ballot application have been met. Commissioner, we refer you to section 461 of the Act where at 461(a), that the parties have genuinely tried to reach agreement during the bargaining period and 461(b), are continuing to genuinely try to reach an agreement. We can advise, Commissioner, as the Commissioner can see in the application that bargaining periods were filed in all three of the matters on 25 October 2007. The bargaining period becomes active after seven days notice, which is from 1 November 2007.

It is our submission, Commissioner, that during this period the company has made contact itself with the applicant - the company may contact Mr Mick Pirie and advised that they had received the notification of initiation of bargaining and they advised that they would not be prepared to enter into discussions about having agreements with the four separate Gate Gourmet entities, which operate as a single business and they advise that regardless of that situation, that they would not prepared to have discussions with the applicant until a vote was finalised in regard to a non-union collective agreement that the company has currently put out to its employees.

So the position has been, Commissioner, that the union, the applicant in these proceedings, has been seeking to have negotiations, the company is seeking to enter into genuine and good faith negotiations but has simply been rebutted by Gate Gourmet Holdings, by Gate Gourmet Property and by Gate Gourmet Services and the company has not been prepared, the three companies have not been prepared to enter into negotiations with the union.

There has been correspondence and discussions also outside of the bargaining period which I think is relevant for some background information, Commissioner. We wrote specifically to the company and that correspondence - if I might, I might just hand it up now, if I can tender a copy of that correspondence, Commissioner. I might just tender the fax receipt as well. Commissioner, we wrote to the company as well on 8 October 2007.

EXHIBIT #TWU1 LETTER FROM TWU TO GATE GOURMET PROPERTY, GATE GOURMET HOLDINGS AND GATE GOURMET SERVICES (NSW)

MR AIRD: So the company was well aware of the union’s position. We listed the specific entities, we made it quite clear, as that correspondence makes clear, Commissioner - and I refer you to the second paragraph where we state:

As you are aware negotiations have been underway for some time with Gate Gourmet Services Pty Ltd. The union advises that we seek individual union collective agreements for each of the four companies.

The response to that correspondence, as I’m advised, Commissioner, is that the company has not been prepared to negotiate with the union about reaching agreement with the four separate entities that have been listed.

Commissioner, if I can also refer you to 461(c) where it states that the applicant is not engaged in pattern bargaining. The definition of “pattern bargaining” is contained at section 421 and it states at 421 - or rather than read through the whole section, Commissioner, we say that the relevant points are at 421(1)(a), (b) and (c). There is an end between (a), (b) and (c), so that means the requirement to be pattern bargaining is to fail and that (a), (b) and (c), not simply (a), (b) or (c). We say, Commissioner, that we would meet the definition of (a), that we are a negotiating party in two or more prospective agreements, and we say in (b) that:

There could potentially be an argument that we have been involved in a course of conduct ...(reads)... common wages or conditions of employment for two or more of those post-collective agreements.

But we say, Commissioner, clearly that we don’t - the course of conduct does not extend beyond a single business and I think that’s clear from the representations in previous matters from the respondent in these proceedings that there is no possible argument that the course of conduct extends beyond a single business. To that extent, in that regard rather, Commissioner, we refer you to section 322 where we say that it provides for a definition of a single business at 322. For the purpose of the proceedings today, Commissioner, we would refer you to 322(2)(a) and (b) where we say:

The entities before you today clearly meet the definition of 322(2)(a).

And we also say - I won’t read the relevant provisions out and we say, Commissioner, that they also meet the provisions of 322(2)(b). And I think so much is clear from the respondent’s own evidence and we would - we’re aware that the Commissioner is aware of proceedings before ..... involving Gate Gourmet Services Pty Ltd where a secret ballot application was granted where the respondent in those proceedings made it clear that it was seeking a common agreement across the four entities as the respondent made it clear in those proceedings that they were a single business.

So, clearly, there can be no arguments that the applicant in these proceedings is pattern bargaining. Clearly, Commissioner, we submit that we have reached - that we have met the prerequisites of genuinely trying to reach an agreement. You can’t do much about trying to reach an agreement when the other party is refusing to have discussions with you, the nature of which is sought by the applicant.

Commissioner, Mr Pirie is here today if he needs to be put in the stand but on that basis, Commissioner, we say ballot applications should be granted in all three matters that are before you today. I’ll just leave submissions there for now, thanks, Commissioner.

THE COMMISSIONER: Yes, Mr Houlihan.

MR D HOULIHAN: Thank you, Commissioner. With respect to what Mr Aird says about the timetable there’s no issue obviously. The bargaining periods were initiated from 25 October and come into effect from 1 November. Pursuant to section 420 - 461 of the Act, the requirement on the applicant is to demonstrate that negotiations have attempted to be, or genuinely made during the period of the bargaining period, that is, from 1 November through until today’s date for 461(1)(a).

The conversations Mr Pirie - where Mr Aird has made the submission that the company refused to negotiate on all four separate agreements occurred outside of the bargaining period. For the purposes of you exercising your decision in this matter, Commissioner, you’re required to take into account - it’s our submissions you’re required to take into account the actions of the initiating party during the bargaining period. There is substantial background to this matter, Commissioner. Exhibit TWU1, we recognise that we received a copy of that letter on or about that date. I don’t have a copy with me but I have seen that letter. And we have had extensive negotiations over 12 months. But the purposes of granting a protected action ballot, Commissioner, are about the actions in the initiating period only during the bargaining period. It is not about the actions of any party outside of that bargaining period.

Now, Mr Pirie is here. I’m not sure if he has his diary about when that conversation took place, but just from Mr Aird’s submissions I would suggest that it would appear to have happened well before 1 November, that it happened directly after the letter of 25 October, to place us outside the bargaining period.

THE COMMISSIONER: The letter of 8 October, you mean.

MR D HOULIHAN: No, no, the letter of 25 October initiating the bargaining period.

THE COMMISSIONER: Yes, yes. You say it didn’t happen after that?

MR D HOULIHAN: It did but it had - the bargaining period only came into effect - - -

THE COMMISSIONER: After seven days, yes.

MR D HOULIHAN: - - - after seven days. And we say that that conversation occurred between 25 October and 1 November. Commissioner, there have been discussions between the company and the union in relation to an agreement, an agreement or a series of agreements. The conversations were very vague on that particular matter involving another TWU official who I understand was married on Saturday and is therefore not available to give evidence in relation to that. But Mr Crosby, who is sitting in this courtroom today, was involved in some of those discussions.

Commissioner, that particular conversation arose out of the phone call that I received from Scott Connley in relation to attempting to settle the matters between the companies and the TWU. To that end, there was a meeting that occurred on Melbourne Cup Day, on 6 November, at our offices. Involved in that meeting were myself, Maria Matvejev, who’s the human resource manager for the four relevant companies, three in this matter, Sam Crosby and Scott Connley, both of the Transport Workers Union.

Commissioner, for there to have been genuine negotiations, her Honour, Acton SDP has defined that genuinely trying to reach an agreement, this is in CEPU and AFMEU v Cadbury Schweppes Australia, PR973290, that her Honour found that “genuinely trying to reach agreement” means they prepared and considered seriously the offers and proposals put by the other party. Commissioner, there is no offer from the TWU before the four companies - before the three companies, sorry, I retract that - before the three companies.

The only correspondence indicating an offer is the letter of 25 October. The meetings on 6 November talked in very general terms about an offer and the company has been trying to convince the TWU to put us an offer even up to this morning so that the company can properly consider it. We say, Commissioner, that without an offer there can be no attempt to have made a genuine attempt at agreeing or attempting to reach an agreement.

Commissioner, it’s the requirement of the applicant in these sorts of matters to prove and to provide evidence of the steps that they have taken to genuinely reach an agreement. The submissions of Mr Aird do not go to satisfy the requirements under 46(1)(a)[sic]. We say that the requirements under 46(1)(b)[sic] generally relate to the period after this initiation process. And again, there were a number of phone calls between myself and Mr Crosby attempting to seek an offer from the Transport Workers Union that could be replied to by the company.

Commissioner, finally, in relation to section 461(1)(c) and Mr Aird’s submissions in relation to pattern bargaining and the fact that in previous matters before you we alluded to the fact that these four entities, related body corporates carrying on a common enterprise. My submissions in relation to this are that, firstly, the provisions with respect to 322 only in relation to the making of an agreement. 322 defines and is found in that part of the Act in Part IV which relate to who the parties to an agreement may be. For the purposes of the Act that describes them as related body corporates going on a common enterprise, it relates to single businesses, geographically distinct units, those sorts of areas.

The issue that’s before you today is a totally different matter and that’s in relation to the ability of the union to initiate a protected action ballot for the support of strike action against a series of companies. The union’s correspondence in Exhibit TWU1 and the application before you clearly makes the point that each of these individual companies are a company that the union is seeking to make an agreement with. 322 allows for a single agreement involving all four of those companies but the TWU have not proceeded down that path. They have proceeded down the path of nominating each of the individual companies as a single business.

Commissioner, each of those four companies - and I do not have the ACNs with me - are constitutional corporations who employ people. They therefore fit the definition of employer in section 6 of the Act. As they are a single employer and as that has been nominated by the TWU, the actions taken by the TWU would therefore fit the definitions - fit the requirement in 461(1)(c) and the definition in 421(1)(c) of the Act. That is that - and the negotiating party in this case is the initiating party and that meets the definition of 421(1)(a). 421(1)(b), a course of conduct clearly includes seeking common terms of conditions across two or more proposed collective agreements.

Again, Commissioner, if I can refer you to the Full Bench decision in PR973718, the Australian Nursing Federation v Trinity Aged Care Anzac Lodge Private Nursing Home. The Full Bench there approved Lawler VP’s definition of “common”:

The precise meaning of the word “common” in expression “common wages or conditions of employment” is not entirely clear. The explanatory memorandum does not assist. It just seems to me that ...(reads)... thus the expression “common wages” means wages that are the same of identical.

Commissioner, as I have outlined earlier, there is no offer from the TWU, which means that the only documentation that is before this Commission is the notice of initiation of the bargaining period in these three matters. Commissioner, if I can just quickly take you to that, that includes five dot points, rates of pay allowances, occupational health and safety, protection of employee entitlements and any other matter pertaining to the relationship and the fourth point under (d) is the proposed nominal expiry date of the collective agreement. That is 26 September 2010 in all three documents.

We say, Commissioner, that the only evidence that is before this Commission in relation to the terms and conditions that the TWU are seeking to negotiate that may be the subject are those common nominal expiry dates. It is one of the tests for determining whether or not there is the issue of the commonness about the expiry dates.

Commissioner, we say, therefore, that the union has failed to meet the tests in 461(1)(a) that during the bargaining period that they genuinely tried to reach an agreement. There is no evidence to that and it’s disputed by the respondent that during the bargaining period they have genuinely tried to reach agreement with the employer, with the three employers. There’s no evidence of that, Commissioner, and that the applicant has not engaged in pattern bargaining. Commissioner, we say that there is no evidence to suggest that the applicant is not engaged in pattern bargaining and the onus rests squarely with the applicant in these matters to demonstrate that.

Commissioner, if you have any further questions - otherwise, thank you, sir.

THE COMMISSIONER: Yes. Mr Aird?

MR AIRD: I just briefly want to deal with the issue of pattern bargaining. The point that I raised in submissions was in regard to 420(1)(c)[sic]. So we haven’t led submissions on whether we are or aren’t. We said we may well be but we don’t seek to adduce evidence in regard to whether we are or aren’t seeking common wages and conditions but we said regardless, 421(1)(c) makes it clear that the course of conduct extends beyond a single business. We say quite clearly that test is not meant in the course of conduct does not extend beyond a single business.

At 421(1)(b), Commissioner, it makes it clear that it involves negotiations for two or more proposed collective agreements. In this case the union is seeking two or more proposed collective agreements but they do not occur - the course of conduct does not extend beyond a single business. In those circumstances, it’s clearly appropriate to use the definition provided at 322 of the Act to define what a single business is. And quite clearly we say that under the definitions of 322(2)(a) and (b) they clearly both meet the definitions of (2)(a) that they’re carrying on a common enterprise and they’re meeting a definition that they’re providing catering services jointly. I mean, some of the entities, Gate Gourmet Holdings, for example, employs some of the - employ a number of the drivers. Gate Gourmet Services Pty Ltd employ a number of the kitchen - I mean, it’s a common enterprise to provide catering services to airlines. I don’t see how that issue can be contested.

In 322(2)(b) I’m not sure - it can’t be as conceded, as my understanding that they’re related to each other for the purposes of the Corporations Act 2001 which is indeed the basis on which they have sought to negotiate an agreement that would cover the four entities. So, their own actions, in seeking to do a common agreement across the four entities, are indicative that the respondent’s own definition is that they are a single business. The fact that you’re pursuing four separate agreements with four separate entities in no way colours the fact that they could be regarded as a single business. There’s nothing unusual about that.

A number of companies have a split up of different entities where different agreements are made with common terms and conditions, where they’re operating as a single business. It’s quite a common practice in the transport industry, Commissioner, where different entities are often set up for particular contracts and it’s been a consistent situation where common terms and conditions have been negotiating in those areas because essentially they’re part of a group of companies and they’re carrying on a common enterprise.

So we would see no basis - clearly, 421 requires, meaning of both (1)(a), (b) and (c), would clearly - the course of conduct clearly does not extend beyond a single business on the facts before you.

In regard to the other evidence, we say the respondent’s own submissions in registered to 6 November make it clear - the respondent in submissions said it wasn’t clear whether it was discussions about agreement covering four entities or a multipurpose agreement, with one agreement covering the four entities, was the terms of the discussions. But the respondents made it clear that they had discussions on 6 November. They seem to have made no submissions that they were anything but genuine negotiations.

Now, we say the evidence is already before you to make the order. Both Mick Pirie and Mr Crosby are here and can make submissions. I mean, the issue in regards to the offer is that at the initial discussions we put a 6 per cent a year offer to them. The issue in regard to the offer, Commissioner, is that the company has been saying they can’t afford any pay rise at all. They can afford to pay zero. But that can be led in - - -

THE COMMISSIONER: Well, sorry, Mr Aird, when did you say 6 per cent?

MR AIRD: That was early on in the negotiation period, as I understand it.

THE COMMISSIONER: What was said at the 6 November meeting?

MR AIRD: Well, 6 November was an attempt to see whether we could get some sort of position from the company. The company had been saying to us, Commissioner, that they couldn’t afford to pay any increase at all and they were offering a voucher system of something like $750 cash a year or something to that effect. So the point of putting our offer and the union’s national claim is 4 per cent a year plus 1 per cent superannuation, is that the company have been saying, “We can’t afford a thing”, so out of those discussions, Commissioner, the company had moved the position somewhat where they had indicated - because at that time - and as they are now they have been pursuing a non-union collective agreement. At that meeting they indicated to us that they would put out a position of 1 and a half per cent.

The reason why we’re here today is that 1 and a half per cent we still believe is too low. It’s well below the CPI figures. I mean, the issues - I mean, the facts of these negotiations had been that the company had been saying, “We can’t afford to pay appropriate and reasonable increases to employees and at least keep pace with CPI and that's why discussions had broken down so it hadn't been so much for us to be saying, "Look here's the union claim" because we'd been discussing with the company about trying to get them to move from their position which we regarded as completely inadequate and the company had been intransigent in that position. I think that's shown by the fact that a non union collective agreement has been sent out to vote on over the last week and that vote finalises today - at close of business today.

We say the submissions by the respondent are self defeating and make it clear
- and make it clear that negotiations took place on 6 November. It's a very low
- it's a very low threshold. We've met, we've considered their position. The position is considered to be inadequate as I think is pretty reasonable given that it's a significant reduction in wages on current estimates of CPI figures over the next three years and we as a union don't feel that our members should be going backwards by somewhere in the vicinity of 6 per cent and that's why the position was rejected so we say the respondent's submissions are self defeating but if we're put to proof in that matter then Mr Pieri and Mr Crosby are here and we can - if that's necessary Commissioner I think - we say in submissions it is adequate for you to grant the order now but if necessary we can put Mr Pieri and Mr Crosby in the stand and we just seek a brief adjournment of ten minutes and then I'd seek to put them both on the stand to adduce evidence about the negotiations that have taken place Commissioner.

THE COMMISSIONER: Thanks for that Mr Aird. Mr Houlihan what do you say about that 6 November meeting? Whether we should have witnesses to say what people said they said or we just listen to what you say and to what Mr Aird says?

MR D HOULIHAN: Commissioner I was a party at those meetings on
6 November and Mr Crosby was too. It's a position for Mr Aird if he wants to put him in the stand as to what's discussed. If I might just make a couple of points in reply. There has been no offer from the company of 1.5 per cent Commissioner. There has been no offer. The offer that went to the employees was $500 upon signing and $250 in six months so we absolutely repudiate that there has been an offer by the company to the union. We had discussions on 6 November about whether or not it would be forthcoming and we say that until an offer is forthcoming from one party to the other that there can't be any genuineness in the negotiations.

Commissioner, with respect to Mr Aird's submissions about whether or not these four entities are carrying on a single business, sir the definition of single business arises in part 4 of this Act whereas - where in  section 321  and 322.

THE COMMISSIONER: Part 8.

MR D HOULIHAN: Part 8, I beg your pardon Commissioner sorry, and this part is a totally different part of the Act being part 10 of the act and the definitions make it clear that it's - - -

THE COMMISSIONER: Part 9.

MR D HOULIHAN: Part 9 - - -

THE COMMISSIONER: No actually I think you might be right - it's not party 8, yes all right.

MR D HOULIHAN: One out of two is not bad Commissioner for me but Commissioner, the issue is the same, that that part of the Act which contains section 322 is in relation to the parties who can make an agreement. The part that we're here discussing about is in relation to the conduct of parties who want to take protect ion action. Commissioner, the issue is in relation to whether or not a related body corporate can enter in to an agreement whether it's employees or with any other party that would be entitled to represent those employees and that's covered in that part of the Act, in section 322 and we say that there is no nefarious purpose or misdirection in pointing out the fact that that particular part allows and describes the parties to an agreement.

What we're dealing with today is in relation to conduct for negotiating parties who intend to make an agreement and they are significantly different parts and provide for significantly different senses of operation under this legislation. Commissioner, one of the reasons why we went through this process for the Gate Gourmet Services before you was to place the union very squarely on notice and we've had discussions with the union in relation to this as we see this being a very dangerous strategy for them. We believe for the union to demonstrate the genuineness of the negotiations, they are required to separate each of these companies to conduct each of those negotiations, otherwise they fall in to a problem of either seeking a multiple business agreement, because these are each individual constitutional corporations individually employing employees.

Accordingly they may well be a multiple business agreement or they are clearly seeking pattern bargaining because again Commissioner each of these companies is an employer as defined in the Act. The Act also allows for each of these employers to be treated as a single employer for the purposes of making an agreement but there is no provision in this Act allowing for each of those single employers to be - as a group - to be treated as a single employer for the purposes of taking protected action and we say for that reason Commissioner, that the actions of the union are pattern bargaining. If it pleases the Commission.

MR AIRD: Commissioner can I respond to that?

THE COMMISSIONER: Well Mr Houlihan your argument that the definition of a single business is in 322 in division 8 and not in division 9 I noted that but then when I look at section 4 in the general part of the Act, part 1. It says single business has the meaning given by section 322 which makes me think that the Parliament, or the Act says, wherever the word single business appears go to 322.

MR D HOULIHAN: Commissioner I accept that. The issue then becomes then that the Transport Workers Union by nominating the four individual employers has attempted to log each of those as a single employer. I'm not disputing that there are any number of organisations in the Transport Industry or other industries that use multiple business entities for the purposes of hiring people and those sort of things. There's no argument about that. The argument is about whether or not the union is entitled then to seek to take protected action against an individual employer who may be considered carrying on a single business and we say, again that that definition at 322 even though the Act does refer back to that as - the definitions does refer back to that.

We say that that is only in relation to the parties to the agreement and it's not in relation to the ability of a negotiating party seeking to initiate a objective action ballot and that therefore that categorises the actions of the union as engaged in a pattern bargaining. Commissioner if you find against us on that particular point we still press our submissions in relation to the genuineness in the negotiations.

THE COMMISSIONER: Yes I understand that. Yes thank you Mr Houlihan.

MR D HOULIHAN: Thank you Commissioner.

THE COMMISSIONER: Mr Aird?

MR D HOULIHAN: Sorry.

MR AIRD: I was just going to say Commissioner, I think you need to also look at the intent of the Act, it shouldn't be interpreted in a way that's going to create mischief. The intent of the Act is to provide - are provisions there that provide for employees to take protected action in appropriate circumstances. If it's the interpretation that took place in these provisions is as has been led by my friend here it would in a practical effect, allow companies to avoid any scope for employees to be able to take meaningful protective action because they would be able to arrange their affairs in such a way as protected action would become essentially useless because you can't take protected action under a multi employer agreement so it would make - any company could restructure its affairs - - -

THE COMMISSIONER: Why didn't you call these three people a single business?

MR AIRD: Well we are saying they're a single business.

THE COMMISSIONER: But you've lodged BP's for them separately haven't you?

MR AIRD: That's correct Commissioner because you can only lodge a bargaining period against one entity, you can't lodge a bargaining period against a single business. You cannot lodge a bargaining period against more than one entity. So you can't lodge one bargaining period against four corporations even though they're acting as a single business and that was the submissions that were led by the respondent in the matter of Gate Gourmet Services - - -

THE COMMISSIONER: Yes I sort of vaguely - recall that totally - - -

MR AIRD: Which indicates quite clearly the intent of the respondent in these proceedings. The intent of the respondent in these proceedings is to say, "We're going to do everything possible to prevent our employees from having access to the protection action provisions of the Act" and that's clearly not appropriate Commissioner. It's at 423 Commissioner where bargaining periods cannot be lodged for the purposes of a multi business agreement or an agreement with two or more corporations. If the submissions of the respondent are submitted, we say that would lead to the absurd situation where the protected action provisions would essentially become - in practice - largely irrelevant and of no use to employees to act collectively.

Now the clear position of the legislature was that these protected action provisions are to facilitate action in an appropriate way if the prerequisites are met, not to make protected action unavailable in other words Commissioner, which would be the effect if the interpretation that has been led by the respondent is accepted.

MR D HOULIHAN: Commissioner may I make one final submission in relation to this matter?

THE COMMISSIONER: Yes.

MR D HOULIHAN: Commissioner, the section that Mr Aird has pointed you to, section 423(1)(b)(ii) clearly I think points that if the union wants to treat these four businesses as a single business then the bargaining period that has been initiated with them does not apply, the effect in our submission of 423(1)(b)(ii) is that it removes that ability to treat these separate employers if constitutional corporations directly employ their labour as being a common business - a related body corporate carrying on a common business, that definition - the ability to initiate a bargaining period against those companies cannot be made. If it pleases the Commission.

THE COMMISSIONER: What do you say about that Mr Aird?

MR AIRD: It simply says that we can't lodge a bargaining period for more than one corporation. It still doesn't affect the definition of a single business for the purposes of what is defined as pattern bargaining so we have lodged against four separate entities - a bargaining period against four separate entities who are carrying on a single business. We're clearly not pattern bargaining. I can't see how there is any way under the definition of pattern bargaining provided for in the Act that we meet that definition. The definition of single business is a definition - whilst it's in the agreement's provisions, as you've said Commissioner, it's the definition provided for in section 4 so it is also the definition of a single business that's appropriate for when we are taking industrial action or the definition of single business that's required for any other part of the Act where it may be relevant. That is the definition of what is a single business. It's a single business that's carrying on a common enterprise.

The fact that it's in the provisions in relation to agreements so be it, it's clearly a single business and we're clearly not pattern bargaining on that basis.

THE COMMISSIONER: Yes I understand that. Well what do you want to do about the - what are you both doing about the witnesses if any?

MR AIRD: Commissioner if we could seek - if the Commissioner was of the mind that he might be in a position to grant the order given the respondent's submissions otherwise we'd seek a brief adjournment of ten minutes and we
will - - -

THE COMMISSIONER: Well I think there's - the genuineness issue is always an important one and if it's challenged I don't really want to leave it untouched but who's going to give evidence for the TWU? Mr Pieri?

MR AIRD: I might just seek ten minutes to consult with both Mr Pieri and
Mr Crosby.

THE COMMISSIONER: Yes, and is there anyone from the company that would give evidence?

MR D HOULIHAN: Commissioner I might withdraw from the Bar table and if required I'll give evidence and the appearance will change.

THE COMMISSIONER: All right, we will adjourn for a short time.

<SHORT ADJOURNMENT [10.23AM]
<RESUMED [10.53AM]

THE COMMISSIONER: Yes Mr Aird?

MR AIRD: Thank you Commissioner. I'd like to call Michael Pieri to the stand.

<MICHAEL PIERI, SWORN [10.54AM]
<EXAMINATION-IN-CHIEF BY MR AIRD

MR AIRD: Mr Pieri can you state to the court your knowledge and involvement as briefly as you can, in discussions with Gate Gourmet for a workplace agreement?---Yes negotiations started way back in about February 2007.

February 2007?---Sorry - February 2007 - I know that was when I became involved. From then we had committees and at that stage the Darwin EBA had collapsed and which we then tried to make a national agreement. Their EBA had been going from about August 2006. The negotiations continued right through. We put a bargaining period I think in around about June. ..... claims at that stage was basically all the way through was for - in which there was a survey taken at the beginning of the year of all the workers and which came through that the claim they wanted was a six by six by six over three years.

Can I just stop you there for one second. Did you communicate that claim to the company?---Absolutely, they knew that from day one.

How did you communicate that claim?---Through our meetings and through our committee meetings at which minutes were taken. They understood that. At that stage and right at the beginning, because they had been going for a much bigger claim, we weren't at that stage discussing anything financial so it wasn't an issue on which the company wanted to discuss at that stage. Part of the claim was also the rollover of the EBA in which they tried to - so that was a big discussion point as well. That continued until about the end of July and which negotiations came to an end.

Was the company - what offer did the company put if any - - -?---At the end of July after all the negotiations - I mean their first offer back in February was basically - and I worked it out financially - was take away the penalty rates on whatever - was to take away $9200 from the worker. By the time we got to July their offer was for zero, zero, zero over three years and roll over the EBA which obviously was not acceptable by the workers. At the last EBA that we must understand that the company also asked for a 1 per cent discount in their EBA and which the workers gave them so their claim of a three, three, three EBA became a three, three, two so the company's been - the workers have been working with the company to do the right thing has a long history. At that stage we were saying well, their zero, zero, zero. Obviously our claim was six, six and six and there was no discussion. They weren't willing to go any further anywhere. About - I don't know the timeframe - it might have been about two or three weeks after that - they basically came back and there was still no discussion with the committee or with the union. They went straight to the workers and offered them a cash card bonus so it wasn't even a cash bonus at that stage, it was to offer them a Coles Wish Card or a Woolworths Wish Card. The first for $500 - I think it then went to an offer of 750 and then it went to a cash offer of $750 for the two years and their final offer to myself - and all the way along the way - you need to understand that I did take it back to the rank and file and they rejected it each time so it wasn't a decision made by the union, it was a decision made by the rank and file - the members. Now their last offer was for $750, $750 and 2 and a half per cent on the third year. Again that was taken back and that was rejected by the rank and file and - during the stage of these whole things, off the record I did indicate to Gate Gourmet, that you know, if they made an offer that was a percentage offer I though that that would be much fairer for the workers and I think it would be more acceptable. That didn't come forward. You know they haven't budged from the 750, they went from the zero to the 750 and they stayed there.

**** MICHAEL PIERI XN MR AIRD

Can you advise are you aware of any discussions or were you involved in any discussions with Gate Gourmet after 25 October?---Yes. I spoke to Gate Gourmet. They actually - I rang Maria in the morning and then they - Anton Sweetapple and Maria both rang me that day and what I spoke about the non union agreement and the concept of it. I said that I wanted to set up some meetings for the three companies that we needed to do bargaining periods - needed to do some discussions to get the EBA's up. They refused to do any meetings until after the non union agreement had gone through so I think the earliest that they would actually meet with me would be about the 13th or 14th of this month.

Can you recall the words used - can you recall the words the company stated to you?---Yes what they said was, "We will meet with you after the ballot has gone through", that was the words. You know, "We're too busy before then. We can't meet you until after the ballot."

So you sought to have discussions with them and they refused to meet with you?
---Yes.

I have no further questions Commissioner.

THE COMMISSIONER: Yes Mr Houlihan.

<CROSS-EXAMINATION BY MR P HOULIHAN [11.00AM]

MR P HOULIHAN: Mr Pieri you are aware of a meeting at Gate Gourmet on
18 October, that's the meeting that I was at. Do you recall that meeting?---Yes I do.

Do you recall that that was the meeting where the company made the offer of 2 and a half per cent - proposed the offer of 2 and a half per cent?---My understanding was it was an offer of $750.

Yes, $750 the first year, $750 the second year and then 2 and a half per cent in the third year?---Yes I do remember that.

Do you recall having had a meeting with your delegates - your committee - telling us that those negotiations were now completed, they were all off?---The negotiations about the $750. I mean, I'd had three votes from the rank and file and every time you called us in all the things - Gate Gourmet only wanted to talk about $750 so it wasn't that negotiations were off, there was no more discussions about 750 because the people had voted three times to reject that.

**** MICHAEL PIERI XXN MR P HOULIHAN

Can I then take you to the evidence you just gave about the events since
25 October and you say that you had approached the company on a number of occasions to hold a meeting and that the company said they refuse to meet with the union until after the ballot closed for the non union agreement?---Yes I said that I had a phone hook up with Maria and Anton and what they said was that they wouldn't meet until after the ballot.

Well why then did the meeting take place which is actually the centre of this evidence - why did the meeting take place on 6 November? How did that occur if the company wouldn't meet?

MR AIRD: Objection. I don't think he's in any position to answer that is he Commissioner?

THE COMMISSIONER: Well I don't know. Let's just see if he has.

MR P HOULIHAN: In fairness Commissioner, the man's given sworn evidence that the company refused to meet.

THE COMMISSIONER: Yes I'm allowing you to ask the question Mr Houlihan.

MR P HOULIHAN: Thank you. Do you see any conflict in what you've just said?---No I didn't contact Dan Houlihan. I contacted the company, the company never met with me.

But the company met with the union. Do you agree with that?---My boss who was Scott Connley then, contacted Dan Houlihan and then that was set up after I had the conversation with the company.

So the company met with the union?---On 6 November.

Did you have a discussion with Maria Matvejev from the company on I think Thursday afternoon last week, so after the Wednesday meeting?---Yes I think I did. I spoke to her a couple of times so I'm not sure whether - yes I did I think.

In that conversation did you undertake to get the proposal in writing from the union that had been discussed at the meeting on Wednesday?---What I said to her was that if - because I wasn't at that meeting - if that's what was said, then I have no problems in providing her that. Since then I've found out that that's not what the meeting was about, it was actually what proposal was - from my understanding - I wasn't there - basically her interpretation of what happened hadn't happened so that's why she never got it.

**** MICHAEL PIERI XXN MR P HOULIHAN

I've got no further questions Commissioner.

THE COMMISSIONER: Yes Mr Aird?

MR AIRD: I've got no further questions Commissioner.

THE COMMISSIONER: Thank you Mr Pieri, you can go.

<THE WITNESS WITHDREW [11.04AM]

MR AIRD: Commissioner I would now like to call Mr Sam Crosby.

THE COMMISSIONER: Yes.

<SAMUEL PATRICK CROSBY, SWORN [11.05AM]
<EXAMINATION-IN-CHIEF BY MR AIRD

MR AIRD: Mr Crosby can you tell the court what discussions if any, you've been involved in with Gate Gourmet over a workplace agreement?---On
6 November Scott Connley, Dan Houlihan, myself and Maria met in heat office to - with the primary aim from the union's perspective of moving the company away from a cash offer scheme to a percentage. For an offer to the employees.

Can you give some more detail about the nature of those discussions that took place on 6 November?---We discussed a range of issues. Both parties seemed happy to talk. I think the tone of the discussions were quite hospitable. During the course of the discussions the figure of 1.5 per cent was raised and discussed. Both sides seemed happy with - not happy but both sides agreed that was the best the company was ever going to pay. The company was unwilling to make an offer about the figure and we were similarly unwilling to recommend to our members to make an offer. We said that if the company made that offer we'd be happy to let the members decide but the figure was well below the union's claim so - - -

You say the meeting was about moving the company from an offer of a cash grant to a percentage offer?---That's right.

So why didn't you put a firm offer to the - - -?---Because the figure was much lower than the union's claimed initially of 6 per cent and then in informal discussions of CPI but I mean, the point of the meeting was to get a percentage figure out of the company - to get the company starting to talk about a percentage figure. We achieved that.

I have no further questions at this stage thank you Commissioner.

<CROSS-EXAMINATION BY MR P HOULIHAN [11.08AM]

MR P HOULIHAN: Mr Crosby how long did that meeting last?---I'd be speculating - a couple of hours. Maybe two hours, one and a half hours.

When you left the meeting was it your impression that the union was to reduce to writing that discussion or to formalise that discussion in to a claim?---It actually wasn't. This was a source of dispute between Mr Houlihan and myself and the following day I was expecting him to write to me - - -

I'm sorry I just missed the last part of what you said there I'm sorry?---That's all right, it was the following day or the following Monday I was expecting him to write to me and present me an offer but that never came and I called him and he said, "No it was my understanding that you were going to write to us and make an offer." I explained to him that that wasn't - we weren't interested in them saying that. We weren't going to make an offer - it's so far behind the previous discussions.

**** SAMUEL PATRICK CROSBY XXN MR P HOULIHAN

So you left that meeting without any expectation or knowledge of the claim by the union?---Sorry I don't understand - can you repeat that?

You left that meeting on 6 November - on Cup Day - you left that meeting without any knowledge of a firm proposal or offer or claim by the Transport Workers Union?---There was nothing firmed but certainly discussions had begun and discussions had continued.

Can I just come back to you? was there a claim by the Transport Workers Union for a pay increase, less than the 6 per cent, or less than 3 per cent made at that meeting on Cup Day?---I don't believe so, no.

So there was no claim made? All right, I've got no further questions Commissioner.

MR AIRD: I've got nothing further thanks Commissioner.

THE COMMISSIONER: Yes Mr Crosby you can go.

<THE WITNESS WITHDREW [11.10AM]

MR HOULIHAN: I'll call Mr Houlihan.

<DANIEL CLEMENT HOULIHAN, SWORN [11.11AM]
<EXAMINATION-IN-CHIEF BY MR P HOULIHAN

MR P HOULIHAN: Mr Houlihan it's very ..... this sort of thing Commissioner. You attended the meeting in your offices on 6 November?---I did, I do.

Who else was there?---Marie Matvejev who is the HR officer from Gate Gourmet. Scot Connelly from the Transport Workers Union and Sam Crosby from the Transport Workers Union.

Can you give us a brief description of the discussion at that meeting? What was discussed at that meeting?---We started off by confirming that the offer to the employees was going ahead, that we were in the balloting process as it was. We confirmed that the commitment from the company was still that they wanted to
- they were interested in reaching a union agreement to cover all four entities.

Can I just stop you there? What you've just said is that the company reiterated its position, that it preferred a union agreement?---Yes.

Sorry, go on?---At that point we discussed what the offer to the employees was and it's effectively $500 on signing, $250 at six months. That's repeated in the second year and then there's a 2 and a half per cent pay increase for the three year agreement. Slightly different for Darwin - that's only a two year agreement. At that point we were asked what does that equate to in percentage terms and we said it's generally between 1.3 and 1.4, 1.5 per cent, depending upon the level obviously for the employees and at that point you know, we had some discussions about whether or not that would be acceptable and we suggested that we think we've got the numbers in Sydney and we were unsure about Darwin.

Was a formal claim made against the company by the TWU at that meeting?---No there wasn't.

I've got no further questions Commissioner.

<CROSS-EXAMINATION BY MR AIRD [11.14AM]

MR AIRD: How long have you been involved in the negotiations for an agreement at Gate Gourmet?---I started becoming directly involved in these negotiations I think it was March this year. It might have been a little bit earlier or later. I wasn't involved in the first round of negotiations.

But you were aware that Gate Gourmet employees were surveyed by the union and they came back to meetings with Gate Gourmet with a proposal of 6 per cent a year. Were you aware of that Mr Houlihan?--- I'm not aware of the survey. I'm aware that the union's claim was 6 per cent, but I'm not aware of the survey.

**** DANIEL CLEMENT HOULIHAN XXN MR AIRD

And you're also aware that Mr Pieri informally put to the company that they should move to at least sort of - a CPI rate for a percentage increase?---Yes
Mr Pieri put those in meetings in May/April - March, April, May and June.

You're aware that the employees were opposed - the negotiating committee at least was opposed to a cash card payment - just a one off cash payments - that they wanted percentage increases in the agreement?---That's the information that came back through the union.

Came back consistently?---Came back consistently from the union, not necessarily from the consultative committee.

Mr Crosby has said in evidence that on 6 November he was - the purpose of the meeting was to try and move the company away from a cash card payment to get them to put some sort of percentage offer. Have you got any basis to reject that position from Mr Crosby?---Can I just clarify the question? Are you asking me did Mr Crosby want the company put to - to put to him a percentage increase? Is that the question?

What's what I'm suggesting?---No Mr Crosby didn't do that and neither did
Mr Connley.

I'm suggesting to you that Mr Crosby and Mr Connley were putting to the company that they should move from a cash card offer - from a cash payment - to a percentage, to a wage percentage increase at that meeting?---Yes that would be a fair representation - that was the preference of the union, that we move from cash to a percentage increase.

Yes and if they put an offer of - I'll put this to you Mr Houlihan - if they put an offer to you of a 5 per cent wage increase per you it would have been rejected out of hand wouldn't it?---I imagine so. I didn't have any instructions to respond to a wage increase at that time, no.

That's just - you were fully aware Mr Houlihan - I'll put it to you - you were fully aware that if an offer of 5 per cent a year was put to you it would have been rejected out of hand. That's the situation isn't it?---Considering that the 3 per cent had been rejected, yes I'd imagine that the 5 per cent would have been rejected.

**** DANIEL CLEMENT HOULIHAN XXN MR AIRD

So what's unreasonable Mr Houlihan, about having a meeting to try and get the company to shift from a cash card payment to a percentage increase? That's still
- why is that not negotiating over the terms of the - - -?---Because there was no offer from the union to move to a percentage offer. The offer to the employees was quantified in percentage terms as 1.l3, 1.4, 1.5.

Yes but any offer that was put by the union at a reasonable level or a 5 per cent level and I assume from there a 4 per cent level for example - it would have simply been rejected out of hand. That's correct isn't it Mr Houlihan?---I'd imagine. Look, no offer had been rejected out of hand. The offer had always been taken back to the company in the same way that no offer from the company was ever rejected out of hand. That went back to the membership.

The company believed that it wasn't viable to pay percentage increases at this stage anywhere above 2 per cent?---I don't know what the figure was and I don't know whether the company's viable or not at that particular level.

But since negotiations started in February you've maintained the cash card payment until 6 November 2007. That's correct isn't it Mr Houlihan?---No that's not correct.

You maintained the cash card payment for at least the first two years of the agreement until 6 November 2007?---That cash card offer was only made when the agreement - just prior to the agreement going out at the last group agreement negotiations. That's my recollection that that was - when we first started talking about the $500 and $250 which is about October.

Initially you put to the employees zero?---Yes.

Sorry, initially you put to them a reduction because they'd removed ..... - - -?
---Yes, yes.

So you moved from a reduction in earnings to zero per cent to a position of two cash payments with a percentage increase in the final year?---Yes.

On 6 November you indicated that you'd look at offering 1 and a half per cent for three years?---No we didn't. We wanted the union to come back and put an offer to us. We had an offer to our employees and we were willing to respond to an offer from the union which we didn't receive.

**** DANIEL CLEMENT HOULIHAN XXN MR AIRD

Wouldn't it be reasonable to assume that 1 and a half per cent is not what the union would seek in an agreement, so it was more the onus on Gate Gourmet to put that offer to the employees?---We had an offer to the employees.

Which was rejected?---Well we don't know that until tomorrow morning, whether or not the offer is going to be rejected or accepted.

Now that's the non union agreement that's - - -?---That's the employee collective agreement, yes.

Right, the non union employee collective agreement. Now is that the same agreement that's been served - is it a common agreement between Darwin Airport and Sydney Airport?---No it's not. There's a Darwin agreement which is a two year agreement and there is the other three ports which is a three year agreement.

So you've separated the Darwin Airport out of the - - -?---At the request of the employees, yes.

Or because you think that the Darwin Airport will vote the agreement down?---No generally at the request of the employees which is why there's also a difference between the two years and the three years.

I have no further questions.

<RE-EXAMINATION BY MR P HOULIHAN [11.20AM]

MR P HOULIHAN: Commissioner, I just have one question. Mr Houlihan, at the meeting on 6 November your evidence is that there was no claim made by the TWU. Is that correct?---That's correct.

Did the company make any claim against the TWU at that meeting?---No they did not.

I've got no further questions Commissioner.

THE COMMISSIONER: Yes thank you Mr Houlihan you can go?---Thank you Commissioner.

<THE WITNESS WITHDREW [11.20AM]

MR P HOULIHAN: May I be excused Commissioner?

THE COMMISSIONER: Yes thank you. Yes Mr Aird.

MR AIRD: Commissioner we would submit - I think I've dealt with our submissions in regard to the allegation in regard to pattern bargaining We would say in regards to - 461(1)(a) and (b) in regards to genuine negotiations between the bargaining period in (a) and 461(1)(b) that the applicant is genuinely trying to reach agreement. We would say the evidence before you Commissioner clearly establishes that fact. There's clearly been extensive negotiations for quite some period of time. Commissioner the fact for some reason which I'm not sure about, there seems to be great reliance on the respondent that some sort of formal percentage offer was not put on 6 November. The Commission has just heard the entire context of the negotiations and it's quite apparent why no formal offer was put. Six per cent had been discussed in the past. That's acknowledged. It's also acknowledged that CPI increases had been put in the past. It's also acknowledged we would submit in the evidence before you by Mr Houlihan Commissioner, that any sort of moderate percentage increase was going to be rejected out of hand.

Mr Crosby says in his evidence that the purpose of the discussions was to try to get the company to review their position of offering a cash card payments to percentage increases. I mean, these are quite clearly genuine negotiations. There's no requirement for them to go in there and take some sort of formal exercise rather than an exercise in substance of putting four and four or five and five and having it rejected. It was quite clear, I would submit from the Commissioner - I would submit Commissioner, that the evidence before you shows that a reasonable percentage increase was not going to be agreed by the company. The union was involved in hard headed negotiations to attempt to move the company to a preferable position.

It's blindingly obvious why the position wasn't put to the union to the company, because this union by no means endorses the situation where employees earn 1 and a half per cent a year when inflation's currently attracting at around 3 and half per cent a year because they go backwards. I think that the evidence from
Mr Crosby and Mr Pieri makes that clear. We say Commissioner, that we've clearly established a basis for a secret ballot order to be granted today in all three matters before you. The evidence establishes that there was no - that we're not pattern bargaining. That the four entities - one of which has had a secret ballot application granted - are a single business as defined under the Act.

It's quite clear that there's been ongoing negotiations for quite some period of time. There's no evidence before you Commissioner that those negotiations have been anything but genuine. I might say the respondent's position in contrast has been that they spoke to Mr Pirie on - some time shortly after 25 October and refused top meet with him. Now that needs to be taken in to context with meetings that have taken place during the bargaining period and he spoke of them specifically after a bargaining period had been lodged and the position from the company was from Ms Matvejev at the time - was that they were taking the position that they would refuse to meet with the union until the union - the ballot for the non union agreement had been finalised. There's no evidence to refute that.

It was Mr Connley who approached them to try and get negotiations back on track. The negotiations that took place in that meeting - the evidence by
Mr Crosby and Mr Houlihan were clearly very genuine negotiations but what is also clear is that there was some gap between the parties about they wanted in the agreement. Well we would say in that regard Commissioner, so what. It doesn't change the fact that the parties were genuinely negotiating to try and reach an agreement.

THE COMMISSIONER: Mr Aird, just remind me of one - not remind me, but tell me what your view is. There's a non union ballot open at the moment and it closes tomorrow. If it's successful, that is if the company's proposal is accepted by the majority of persons voting - that would - that agreement would override - it would cut this process in midstream wouldn't it? They would be able to run down to the - whoever that person is - they keep on changing names - the office of something - they would be able to lodge that wouldn't they?

MR AIRD: That would be my understanding. We have raised some concerns about some irregularities in the ballot process but what I would say without dealing with some of the facts of Gate Gourmet it would be our understanding that if a workplace agreement is filed the prima face position is that it has to be accepted that it's been done genuinely. We'd then be asked to overturn it in the Federal Magistrates' Court and in the interim we wouldn't be in a position to take protected action - - -

THE COMMISSIONER: Yes sorry, that's not necessarily of relevance but yes Mr Houlihan.

MR D HOULIHAN: Thank you Commissioner. Commissioner, we push our submissions in relation to 421 - I beg your pardon. Let me start that again, 461(1)(c) in relation to the pattern bargaining. I don't intend to address you any further in relation to that. Commissioner, the onus on the applicant is for the conduct of the negotiations during the bargaining period. It is that particular period, there is a long, substantial history in relation to the negotiations that have been undertaken and when we were before you in relation to Gate Gourmet services we made no complaint about the genuineness of the negotiations during that respective bargaining period because those negotiations genuinely occurred in the correct time period.

Commissioner, the only evidence before you is that there have been a series of telephone calls and one meeting in the - with respect to the bargaining period and that my evidence was that there was no offer made from either party and I understand that there was no offer made from either party from the evidence of Mr Crosby and that is of particular importance in that as I pointed out before, SDP Acton has found that the requirement in terms of genuinely trying to reach an agreement means preparedness to consider seriously the offers and proposals put by the other negotiating party and again it's the same reference is PR973290.

Now Commissioner, we say without an offer from either party there can't be any preparedness to shift. The evidence from the company was that there was an offer in place to the employees and that's the subject - that's a matter for the employees to determine tomorrow and subject to the TWU's rights obviously but that is the only offer. That is the only offer. The meeting was about a quantification of what that offer means in percentage terms but counting them in shackles and counting them in dollars doesn't change the fact that the only offer is an offer to the employees.

THE COMMISSIONER: Let me ask you this. You said the union didn't formally put to you in your - the company - we want 1 and a half per cent. They didn't say that to you.

MR D HOULIHAN: That's correct Commissioner.

THE COMMISSIONER: Right, but are you also saying they never said, "We want 6 per cent"?

MR D HOULIHAN: During the bargaining period Commissioner? I'm also saying that, yes.

THE COMMISSIONER: Sorry, in interrupted you.

MR D HOULIHAN: That's the case sir, but yes, just to be clear sir, the 6 per cent was part of the general negotiations prior to the bargaining period. I'm not disputing any suggestion that there was an offer outside of the bargaining period. The dispute's about the conduct during the bargaining period and we say for that particular reason, that without an offer or a series of proposals and the only offer and proposals that are before this Commission are in relation to the document notifying the initiation of the bargaining period. There is nothing else here that indicates that an offer has been made. Knowledge of what a prospective offer is, is not an offer. An offer requires the union or the employer to place that in front of the other party for proper and due consideration.

Commissioner, whether or not the company would have dismissed out of hand a claim for 47 per cent pay increase or dismissed out of hand a claim for 5 per cent increase, is not to say that there was an offer in front of us of 47 per cent and we're not arguing about whether or not that was genuine or not. What we're actually - what we're here to determine today is whether during the relevant period there was a genuine attempt made by the union in terms of the offer or a proposal to the company and there is no evidence to support that. We say in those circumstances Commissioner that the exclusion on a 461(1)(a) applies and again on the 461(1)(b) and I again press my submissions in relation to 461(1)(c). If it pleases the Commission.

THE COMMISSIONER: Any response Mr Aird?

MR AIRD: Just briefly Commissioner. The Act may say you've got to have regard to negotiations that take place in the bargaining period but the thing is you can't have a look at those negotiations in particular circumstances, particularly the circumstances of this case, in some sort of abstract manner, disconnect it from the other negotiations that have taken place. We would submit Commissioner, that would be absurd. Clearly there's percentage increases that have been put. Clearly Mr Crosby's evidence makes it clear that those negotiations on 6 November were just about trying to get some small movement because there hadn't really been any since February.

In the evidence before you Commissioner it's clear that genuine negotiations have taken place and some sort of semantic approach about using the meeting of
6 November in an abstract form is disingenuous. If you put the context of that meeting in the background of the other negotiations that had taken place, it's part of a long process of genuine negotiations - genuine negotiations that have continued to take place during the bargaining period.

THE COMMISSIONER: Yes well let me just say this, that in relation to a number of the technical requirements, I'm satisfied that they are on - they meet the requirements of the Act and that is that statement or affidavit of Mr Sheldon and the existence of bargaining periods. I'm also satisfied that the conduct is not
- in relation to the application, the applicant is not engaged in pattern bargaining and I - although I was a bit confused as one often is with certain parts of the Act - I'm now satisfied that section 4 throws section 322 back in to play as far as part 9 is concerned and when one looks art the provisions of 322(1) and 322(2) I'm satisfied that the pursuit of the matter - the pursuit of separate ballots for the three companies is not a conduct that is going - amounts to patter bargaining which is
- well I didn't speculate as to how that normally operates, but that's not the way that when you look at the Act and the realities of these companies - that is not a situation of pattern bargaining.

As for whether there has been at attempt to genuinely reach agreement, I think the issue is that there's no doubt there's been discussion and negotiation between the parties up to recent months. The question is whether that occurred subsequent to, or within the bargaining period, which I understand commenced by the seven day effect, from 1 November. It is not sufficient to discharge the onus - it's perhaps not a particularly high one but nonetheless it's for the applicant to show this thing. It's not on point to say, "Well we didn't necessarily put anything because we know that it would have fallen on unreceptive ears". That to me is neither here nor there. I am not satisfied that the negotiations took place at the - at any time but in particular at the meeting of 6 November.

I'm sure there was discussions and the people might have - would have loved to have had a successful outcome but for there to be negotiation that does not mean that the parties need to move. They can stick to their hard positions which might be taking money away or demanding 6 per cent every year, but one thing needs to be clear is that at the very least the parties need to know what they're talking about and what they are talking to each other about. What they are negotiating about and I don't say this in a critical way because there is a history to this but I'm not sure that objectively it could be said that the parties were negotiating about a TWU position of X dollars or X dollars per year.

It seems to me that it was not sufficiently specified, neither was it specified as saying we are talking about or we are negotiating on 1 and a half per cent every year, or even that we are negotiating on 6 per cent every year or that we are negotiating in the more general way on all of the five dot points in the bargaining period. This is not a criticism or a shortcoming that requires - the Commission will expect many more days or weeks of negotiating but I think the parties need to formally get together and see if they can, if not resolve the matter, negotiate the matter. The exclusion or the knocking out of the application is - sorry, the failure to genuinely try to reach agreement, it's not fatal to a party making an application. It's only fatal to the Commission granting the application.

In certain circumstances which are a fairly long relationship of discussion and negotiation between the parties. In the context of an outcome tomorrow which may mean that all of this is not particularly relevant or an outcome tomorrow which will place perhaps the company in a different negotiating position and also in the context that the offices of the Electoral Commission may not be available as readily as usual although that's not a reason for me granting of that - it's a fact. What I propose to do is to adjourn my dealing with this matter until two o'clock on Wednesday 14 November and at that time I will determine whether the ballot orders should be made. As I said the only reason for not doing so will be if I'm not satisfied that the applicant genuinely tried to reach agreement or did not try to - or is not trying to reach agreement.

Now I don't expect the - well I'd be disappointed if the union merely walks in to a room and says, "This is what we want" and walks out again but anyway I trust that the parties are not as unsophisticated as that in their dealings with one another and as I said if you reach agreement, good and well. If you don't then as I said, I will hear and determine the matter. Whether it requires a hearing. The parties might say, "Well in the circumstances issue the orders" but I trust that's probably not the case. In the meantime you might also give - if those negotiations aren't successful, you might give some thought to providing the Commission with the actual places or specific times that the ballot would be conducted rather than over a whole day. Normally it's usually lunch periods which the employer - which the parties are able to provide between one and two o'clock or whatever it might be. I'll leave that to you. On that basis these proceedings are adjourned until Wednesday.

<ADJOURNED UNTIL WEDNESDAY 14 NOVEMBER 2007 [11.40PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU1 LETTER FROM TWU TO GATE GOURMET PROPERTY, GATE GOURMET HOLDINGS AND GATE GOURMET SERVICES (NSW) PN17
MICHAEL PIERI, SWORN PN106
EXAMINATION-IN-CHIEF BY MR AIRD PN106
CROSS-EXAMINATION BY MR P HOULIHAN PN116
THE WITNESS WITHDREW PN135
SAMUEL PATRICK CROSBY, SWORN PN137
EXAMINATION-IN-CHIEF BY MR AIRD PN137
CROSS-EXAMINATION BY MR P HOULIHAN PN142
THE WITNESS WITHDREW PN151
DANIEL CLEMENT HOULIHAN, SWORN PN152
EXAMINATION-IN-CHIEF BY MR P HOULIHAN PN152
CROSS-EXAMINATION BY MR AIRD PN159
RE-EXAMINATION BY MR P HOULIHAN PN185
THE WITNESS WITHDREW PN189