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Fair Work Commission Transcripts |
TRANSCRIPT
OF PROCEEDINGS
Fair Work Act
2009
1052671
DEPUTY PRESIDENT ASBURY
AG2015/2235
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity - agreement
Application by Thiess Pty Ltd
(AG2015/2235)
Thiess Australian Mining Lake Vermont Employee Collective Agreement 2008
[AC316237 Print ]]
Brisbane
11.09 AM, TUESDAY, 3 NOVEMBER 2015
Continued from 2/11/2015
PN1006
THE DEPUTY PRESIDENT: Good morning. Submissions.
PN1007
MR MURDOCH: Yes.
PN1008
THE DEPUTY PRESIDENT: Thanks, Mr Murdoch.
PN1009
MR MURDOCH: I intend to address you in effect on three topics, the first one being whether or not the requisite jurisdictional fact exists, that being the existence of an ambiguity or an uncertainty. Secondly, in respect of why it is in the event that you find the jurisdictional fact to exist, why it is that the discretion that then arises should be exercised in favour of my client; and then lastly to address you in respect of the question of retrospectivity, including the issue that was touched upon yesterday regarding the impact, if any, on this application of the approval of the 2015 agreement.
PN1010
So dealing with the first matter, that being the existence or otherwise of an ambiguity or an uncertainty, there are as the Commission is aware a range of previous decisions that consider this issue. They have been referred to in the outlines provided by both sides. What I thought I would do is just take the Commission to some of those decisions and then address you as to the application of the principles set out therein in this case. To that end can I ask you first to go to - in fact before I ask you to go to anything I'll give you the cases. Can I hand to you a folder of the authorities that are referred to in my client's submissions, and you'll be pleased to know that I don't intend to take you to every case orally that's set out in that bundle.
PN1011
THE DEPUTY PRESIDENT: They're always very useful, Mr Murdoch. I start lots of files after these hearings with these cases in them.
PN1012
MR MURDOCH: I'll bear that in mind, your Honour. Can I ask you to go to the case that's at tab 1, that being the Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union decision. That's a decision of Watson VP's. Can I just ask the Commission to note in that case what his Honour said in paragraph 21. His Honour referred to the Beltana decision which is referred to in many of the cases. But importantly for the purposes of ambiguity or uncertainty his Honour adopted what was said in paragraph 24 of Beltana, and that can be seen at the end of paragraph 21. There's an extract of paragraph 24 from Beltana and it's said there that:
PN1013
The task is to make an objective judgment as to whether the wording...is susceptible to more than one meaning. If that judgment is in the affirmative then the Commission may exercise its discretion,
PN1014
et cetera. Can I then ask you to go to the Grocon decision there at tab 14. I'd just ask you to note what is said in Grocon at paragraph 18 and the Commission will see at paragraph 18 then Ross VP in that Grocon decision refers to what is the first part of the process. Again one sees the reference to there needing to be "an objective assessment of the words used" and then you will note the extract from Munro J's decision in Linfox that's over on the next page. I then ask you to go to the decision in Industrial Relations Commission which is at tab 15 in the bundle that you have and to go to - I'm sorry, to go to page 5, and that's a decision of then Ross VP, Polites SDP and Commissioner Grimshaw. On page 5 - and there doesn't seem to be paragraph numbers but about two-thirds of the way down page 5 if you've got the same print as I've got it starts "In our view". Do you see that?
PN1015
THE DEPUTY PRESIDENT: Yes.
PN1016
MR MURDOCH: Now importantly it states:
PN1017
Accordingly the Commission would generally err on the side of finding an ambiguity or uncertainty in circumstances where there are rival contentions advanced before it and an arguable case could be made out for more than one contention.
PN1018
Now the importance of the reference to "arguable case" of course is that it is hardly surprising that in any case parties might come before the Commission and assert that there are different contentions available. But the Commission is required to go beyond the assertions and to form a view whether the different contentions as to how the clause might be able to be interpreted are objectively arguable.
PN1019
Then the last case I wish to take you to is that at tab 20 in the bundle. That's the SJ Higgins decision and if I could ask the Commission to go to paragraph 6 and paragraph 7 just to note what is said there, and you'll note in paragraph 7 that confirms the submission that I just made that, "It is not enough that there be rival contentions because such contentions may be self-serving. The Commission must make an objective judgment as to whether", et cetera, "The wording of the provision is susceptible to more than one meaning".
PN1020
So in my submission when one works through those various authorities a question that the Commission must consider here is whether in respect of clause 34.1, considering that clause objectively, whether the wording of it is susceptible to more than one meaning. Before I take you to the clause I just wanted to make a couple of points in respect of the fact that item 10 refers of course to ambiguity or uncertainty. Now one would expect that because the legislature has referred to two concepts, that being ambiguity or uncertainty, that there would be a difference between the concepts.
PN1021
In my submission something will be ambiguous where it's capable of two potential meanings. But notwithstanding that applying appropriate interpretation principles it may be possible for the Commission to form a view as to what it means. Whereas something will be uncertain if it's not possible to select between a variety of meanings. Now that submission can be made good because as the Commission's aware there are plenty of cases involving interpretations of agreements, awards, legislation et cetera where Courts and Tribunals find that the provision is ambiguous but then go on to provide an interpretation.
PN1022
Now I make that submission because it's important therefore to realise that when applying item 10 the fact that the Commission might form the view that the clause is capable of interpretation doesn't mean that the application for variation still can't proceed. The point is if it's ambiguous or uncertain the jurisdictional fact is met and the question then becomes whether the discretion should be exercised. Now can I then move on to deal with why it is that my client contends that the relevant clause is ambiguous and indeed also uncertain. Can I ask you to take up Mr Mulligan's first statement and you'll find the relevant clause at page 31 of the first attachment.
PN1023
Now in respect of ambiguity, and I touched upon this yesterday but going back to why my client contends it to be ambiguous, in my submission when one looks at the words utilised in clause 34.1 it is capable of having several arguable potential meanings. The first arguable potential meaning is that the employee has four options. Now that can't be in contest in this case because as I understand the argument put against my client by the CFMEU that's the interpretation that the CFMEU favours.
PN1024
The second possible interpretation is that Thiess has four options, and you'll recall that Mr Pierce when he was giving evidence yesterday referred to some discussions that he recalls having with some people when the agreement was being negotiated, and he made a comment that he thought that it would be absurd for Thiess to have options to set itself home et cetera. The next potential meaning is - and in my submission this is an arguable meaning given the words used - that the employee/Thiess have four options, that being that they jointly have four options, and then the last potential meaning is that the four options that exist are options for the employees to utilise, that being (a), (b), (c) or (d) but that those options only arise once the supervisor has determined to require a small crew to operate equipment, man pumps et cetera, and that the reference in Thiess in the employee/Thiess is somehow only referable to that decision by the supervisor.
PN1025
So I don't suggest that any of those meanings are clear cut and I don't suggest that there's not argument about what the meanings might be. In fact I submit the contrary, that given the way in which the clause has been constructed there's a real ambiguity in respect of how one applies the four options in light of the reference to employee/Thiess having four options. So in my submission the Commission would have little difficulty in finding that 34.1 is truly ambiguous because there are several arguable potential meanings.
PN1026
THE DEPUTY PRESIDENT: Is it also possible that there's a fifth one and that's that the symbol between "employee" and "Thiess" is and/or and you read "and/or depending on who would exercise the option"?
PN1027
MR MURDOCH: That's also a potential.
PN1028
THE DEPUTY PRESIDENT: So (b) is both of them?
PN1029
MR MURDOCH: Potentially, yes. It's certainly possible that it could be argued that in effect the employee/Thiess means "employee/Thiess as the case may be" as applied to (a), (b), (c) and (d). That's another possibility, but again that just feeds back into the conclusion that there's an ambiguity.
PN1030
THE DEPUTY PRESIDENT: And it's really what does, "Subject to the supervisor requiring a small crew to operate equipment, man pumps", et cetera. Because you could read that to mean and that just means everyone can't go even if they want to, or it could mean that the supervisor has the right to say "I only want these people" and once the supervisor says "I only want these people" then you've got the four options kick in, and that's the difficulty.
PN1031
MR MURDOCH: Then the four options kick in but then perhaps there's a sixth option that even if you read it in that way and the four options kick in, well then who has the option?
PN1032
THE DEPUTY PRESIDENT: The supervisor. Well, it really is does the supervisor have the determining right at the outset to say "I only want 20 of the 90" or "20 of the 60" and then the 40 take the option? That's another possibility and I haven't had any - if you've put something in the submission and I haven't seen it, what was the context? Because at the moment there are stand down provisions in the legislation and this is arguably - it restricts Thiess' capacity to stand people down because under the Act once this site was inundated with rain Thiess would have the right to holus bolus stand people down provided they couldn't be gainfully - or usefully I think the Act says - employed because it would be a circumstance beyond their control. So this - - -
PN1033
MR MURDOCH: And that's - sorry.
PN1034
THE DEPUTY PRESIDENT: This provides arguably a four hour payment for everybody at least, where under the Act they wouldn't get anything from the moment they were stood down.
PN1035
MR MURDOCH: And what the Commission has just articulated in respect of the Act is reflected in clause 8 I think it is of the agreement.
PN1036
THE DEPUTY PRESIDENT: But at the time this was negotiated what did the Act provide? Because I don't know, I can't recall quite honestly what the Act said. But at the moment Thiess would not be able to invoke the provisions of the Act because of the way that the current provision is worded. So the stand down provisions in the Act now don't operate where an enterprise agreement provides to the contrary and an enterprise agreement includes the transitional instrument. So they couldn't rely on the general provisions in the Act, but what did the Act say at that point?
PN1037
MR MURDOCH: I can have that checked but just in respect of what the Commission is saying, part of the answer might be if one goes to clause 8 which provides for stand down of employees. It's a general stand down clause and the Commissioner will note what is said in 8.1(d) and 8.1(e).
PN1038
THE DEPUTY PRESIDENT: Yes.
PN1039
MR MURDOCH: What is set out in 8.1(d) and 8.1(e) would appear to what would generally apply.
PN1040
THE DEPUTY PRESIDENT: For the stand down.
PN1041
MR MURDOCH: In respect of stand downs.
PN1042
THE DEPUTY PRESIDENT: Except could you use - but the result might be that you couldn't derogate from clause 34.1 by using clause 8.1, so that one applies for, say, wet weather. The other might be breakdown of machinery or something like that.
PN1043
MR MURDOCH: Yes. So there's the general clause and then there's the specific clause which is 34.1.
PN1044
THE DEPUTY PRESIDENT: And this was an agreement made under the auspices of what, this 2008 agreement?
PN1045
MR MURDOCH: It was made under the Workplace Relations Act.
PN1046
THE DEPUTY PRESIDENT: Was it approved - again I can't remember who was responsible.
PN1047
MR MURDOCH: The Workplace Authority.
PN1048
THE DEPUTY PRESIDENT: The Workplace Authority approved it.
PN1049
MR MURDOCH: If the Commission goes to page 4, clause 3.1, and what I was going to go on to deal with later in the submissions in respect of not so much the question of ambiguity but what factors might weigh upon the Commission's discretion if in fact - sorry, I withdraw that. The fact that there is a stand down provision, being clause 8, and the fact that on one view at least of clause 34.1 it only appears to provide for a guaranteed payment of four hours would have the effect that the Commission would not be troubled as it were - and I'll develop this further - but not be troubled by inserting a variation to the effect of what my client submits. Because such a variation would be being inserted in the context of there already being a stand down provision in clause 8 and it would maintain that four hour minimum that appears to be at least a feature of clause 34.1, albeit a feature in respect of which the pathway to it is a little bit difficult to understand. That's understating it.
PN1050
THE DEPUTY PRESIDENT: And what was the relevant award at the time? It wouldn't have been the Black Coal Award. Would it have been that old Production and Engineering Award?
PN1051
MR MURDOCH: It would have been. Again I'm just having a look back to see if that's referred to at all in the - - -
PN1052
THE DEPUTY PRESIDENT: No.
PN1053
MR MURDOCH: No?
PN1054
THE DEPUTY PRESIDENT: It's just every award, NAPSA - - -
PN1055
MR MURDOCH: Yes. Yes, that is so.
PN1056
THE DEPUTY PRESIDENT: There wouldn't have been that many I wouldn't have thought, if they were mining coal. But would it be the Production and Engineering Award?
PN1057
MR MURDOCH: So they're the submissions I wish to make about ambiguity. Can I just deal with uncertainty before I move on to the variation and the exercise of the discretion aspect of the matter. What I'm going to say really goes back to a point the Commission made a moment ago that if one reads the words "employee/Thiess" literally the question arises whether that is to mean employee or Thiess has four options or employee and Thiess has four options, and if it is to be read as either "employee/Thiess has four options" or "employee and Thiess has four options" the question then becomes which option exercised by which entity takes precedence, and that in my submission is perhaps the fundamental problem with the clause that takes it - - -
PN1058
THE DEPUTY PRESIDENT: And - - -
PN1059
MR MURDOCH: I beg your pardon I didn't mean to cut you off.
PN1060
THE DEPUTY PRESIDENT: No, that's all right. Sorry, I'm just - - -
PN1061
MR MURDOCH: It takes it away from being merely ambiguous but truly puts it in the category of being uncertain, that regardless of how one looks at it and analyses it there's still no answer discernible from the clause, and whilst even if one went and looked at the award and things such as that, one can't rewrite the clause. There's still no answer as to what does "employee/Thiess" mean?
PN1062
THE DEPUTY PRESIDENT: Well, the other thing that strikes me based on the evidence is where does the unpaid leave come from because it doesn't appear to be an option to put people on unpaid leave, does it?
PN1063
MR MURDOCH: It's not an express option but it's implicit in 34.1(a), to be paid four hours and then go home.
PN1064
THE DEPUTY PRESIDENT: Well then why does Thiess get them to fill out forms about unpaid leave or paid leave?
PN1065
MR MURDOCH: Because there's the option in (d) to take annual leave. There's the payment for four hours and after that the question then becomes does one elect to take annual leave or does one elect to take leave without pay.
PN1066
THE DEPUTY PRESIDENT: Because the standard award clause when there was a stand down and you didn't have leave to cover it would require you to go on leave in any event, paid or unpaid. It required you to use all your paid leave and then be unpaid if you'd run out of leave. You could direct people - anyway, it's a very badly drafted clause.
PN1067
MR MURDOCH: I'm not arguing to the contrary. So in my submission at the very least the Commission would hold it's ambiguous. But given what in my submission is that almost intractable difficulty with how one applies "employee/Thiess" it's also an example of a clause that can truly be held to be uncertain. Now can I move then to deal with the issue of exercise of discretion and ask the Commission to go back to the bundle and to go to tab 6 in the bundle, which is the Beltana decision of Marsh SDP.
PN1068
I'm not going to obviously read it into the record but just ask the Commission to note what is set out in paragraph 23 of that decision which, when one looks at the other authorities, seems to have been referred to over time by various members of the Commission when considering applications of this nature. The first part of it of course deals with the issue of identifying the ambiguity and then there's also comments made or points made in respect of the exercise of the discretion, and that can be seen from the third dot point down on page 14. Now the Commission will note in particular what's said there about removing:
PN1069
An ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made.
PN1070
Now a feature of this case is that neither side has put on evidence before the Commission as to what are sometimes described as objective background facts, and objective background facts I'm referring to the types of factual matters that properly, on the basis of what is said in Golden Cockerel, can be taken into account when interpreting enterprise agreements.
PN1071
THE DEPUTY PRESIDENT: And there doesn't seem to be any evidence as to why there couldn't be some evidence about that; so who negotiated it, where is the person, has anyone looked at were there records or notes, and from the CFMEU's perspective as I understand it they weren't party to the negotiations. The company negotiated directly with the employees. So I don't know how they could have reasonably put on any evidence. But surely Thiess in its corporate memory has - I mean, who was it? Mr McPherson? If he did South Walker about the same time, was it Mr McPherson? So he's not - I mean I haven't seen him for a long time, but he's not available?
PN1072
MR MURDOCH: The evidence that's before the Commission is the evidence that's before the Commission. I'm not trying to deflect the question.
PN1073
THE DEPUTY PRESIDENT: No.
PN1074
MR MURDOCH: But what is before the Commission is what is before the Commission.
PN1075
THE DEPUTY PRESIDENT: Yes, I understand.
PN1076
MR MURDOCH: So I'm simply making the point in that respect that this is not a case in which those objective background facts are before the Commission. But having said that though, in my submission this is still a case where the Commission can via another means consider what was objectively the intention of the parties, and the Commission can do that - and in the exchange to date there has already been some aspect of this.
PN1077
The Commission can do that by not just considering clause 34.1 but considering clause 34.1 in the context of the agreement and in the context of clause 34 as a whole. To that end I just invite the Commission to note that in 34.2 there is - there are provisions, rather, that deal with what is the situation where employees are offsite. The Commission will note that where employees are offsite and unable to get to work et cetera, providing that they can communicate appropriately:
PN1078
Four hours at ordinary time shall be paid to the employee provided the employee has notified Thiess as set out herein.
PN1079
Then it goes on to say, "If the employee is delayed by rearrangement", et cetera:
PN1080
A supervisor shall determine any additional payment to actual hours worked. Bona fide delayed access to work shall not incur a shift allowance.
PN1081
So we have a situation in 34.1 which deals with where employees are onsite. We have a situation in 34.2 which deals with the situation where the employees can't gain access to work, and in 34.2 it would seem that what is to be provided is the four hours at ordinary time. It would seem to be inconsistent, with respect, to 34.2 for under 34.1 for the employees to have some self-standing capacity to elect to be paid for the entirety of the shift.
PN1082
THE DEPUTY PRESIDENT: But what about 34.4? So people who are stuck in the camp, woohoo they get paid for the whole shift and they get to sit in the camp and people onsite - - -
PN1083
MR MURDOCH: But under 34.4 that only applies in respect of the first rostered shift.
PN1084
THE DEPUTY PRESIDENT: Yes.
PN1085
MR MURDOCH: So whilst they might be in that happy situation it's only for the first rostered shift.
PN1086
THE DEPUTY PRESIDENT: But employees who are unfortunate enough to have started the shift on the site.
PN1087
MR MURDOCH: Yes.
PN1088
THE DEPUTY PRESIDENT: On your argument if they're not required they would only get four hours and then they'd have to use their leave. So they'd be sitting side by side with people in camp who were getting eight hours or whatever the shift is because they were in the happy position of not - you know, being in the camp when their shift started and unable to access the site, as opposed to people who were already on it.
PN1089
MR MURDOCH: But the people - and I don't want to make too much of the happy situation because it may turn out to be an unhappy situation for those people who are stuck in the camp on a shift that's not the first rostered shift, 34.4 won't help them. Whereas for the employees who are at site 34.1, whatever it means, will kick in for any shift.
PN1090
THE DEPUTY PRESIDENT: But wouldn't 34 point - because 34.4 if there's - I'm assuming there's continuous operations. So let's say you're on the night shift and so at the same time as you're on the night shift there's a rain event and people who were at site on the day shift who commenced or have arrived at site ready to commence their shift would be paid only four hours on your argument, and if the wet events close the site for a full 24 hours then the people on the night shift who were just sitting in camp not able to get to the site would be paid for the whole shift, wouldn't they?
PN1091
MR MURDOCH: Only for their first rostered shift of lost time.
PN1092
THE DEPUTY PRESIDENT: Yes, but for both of them it's their first rostered shift. For the day shift and the night shift it's - they're only entitled - arguably it only applies to those onsite when their rostered shift starts and those in camp when their rostered shift starts. So for both of them it deals with their first rostered shift.
PN1093
MR MURDOCH: No, no, 34.4 deals with the first rostered shift whereas 34.1, it simply refers to commencement of the shift. It doesn't have a qualification of applying only to the first rostered shift.
PN1094
THE DEPUTY PRESIDENT: The practical reality is you'd have two shifts of people I'm assuming working 12 hour shifts.
PN1095
MR MURDOCH: Yes.
PN1096
THE DEPUTY PRESIDENT: Is that right?
PN1097
MR MURDOCH: Yes.
PN1098
THE DEPUTY PRESIDENT: A day shift and a night shift on a continuous circuit. You would hot-seat the change on the trucks and whatever. Mr Pierce is that right, that's how it would work? So that's how it works, two 12 hour shifts.
PN1099
MR PIERCE: Yes.
PN1100
THE DEPUTY PRESIDENT: In they come. So 34.1 says if you've got on to site but you can't start or you've started and you can't continue, and 34.4 deals with you're at camp waiting. So either way you're going to get - if you're on the site and your shift starts you're going to get only four hours, on your argument. But if you're at the site and your shift hasn't started you're going to get the full shift. I think you're getting some instructions from behind you, Mr Murdoch, over your right shoulder.
PN1101
MR MURDOCH: The other point to be made is that - I'll come back to a first rostered shift.
PN1102
THE DEPUTY PRESIDENT: Yes.
PN1103
MR MURDOCH: But the other point to be made is when one compares 34.1 and 34.4 is that 34.4 is in respect of ordinary hours and 34.1 is not so defined. So again it's not a straight comparison.
PN1104
THE DEPUTY PRESIDENT: I see. So you would say if the shift comprised some hours of ordinary time and some hours of overtime they would still have to be paid four hours if they had already worked all of their ordinary component of the shift and the site became unable to work and they were sent home?
PN1105
MR MURDOCH: They're paid their salary whereas under 34.4 it's limited to ordinary hours so it's a different rate.
PN1106
THE DEPUTY PRESIDENT: I think we're opening more of - - -
PN1107
MR MURDOCH: Sorry?
PN1108
THE DEPUTY PRESIDENT: I think we're opening up more of the can of worms because the way you could read that is if they start work and it's inundated with rain and they get sent home after two hours, they get another two hours. But if they've already worked for at least four hours then the minimum requirement to be paid for four hours has been met and they just can get sent home. Because they've worked for four hours or been paid for four hours either way. It doesn't require you to pay them another four hours on top of - I mean, if they've worked eight ordinary hours and the supervisor decides to send them home.
PN1109
MR MURDOCH: Yes.
PN1110
THE DEPUTY PRESIDENT: After working eight ordinary hours, then they wouldn't be entitled to get paid another four hours to be sent home, because they've already worked - they've received the minimum. So you really are comparing apples with apples, aren't you, if you look at the - - -
PN1111
MR MURDOCH: No. Well, you're not for a couple of reasons. Firstly - and I might not have fully understood what you've articulated, but you're not for a couple of reasons. Because the rate that's referred to in 34.1 isn't limited to an ordinary hours rate. That's the first point, and under 34.1 the reference to being paid the four hours that, in my submission, is a minimum payment for turning up as it were for that shift. It's not something that you get on top of whatever else you've worked.
PN1112
THE DEPUTY PRESIDENT: Yes. Yes, I agree.
PN1113
MR MURDOCH: Which was I understood. I may have misunderstood.
PN1114
THE DEPUTY PRESIDENT: Yes.
PN1115
MR MURDOCH: Yes.
PN1116
THE DEPUTY PRESIDENT: No, that's what I said. If you turned up at - let's say your normal start time was, I don't know, 6 am in the morning.
PN1117
MR MURDOCH: Yes.
PN1118
THE DEPUTY PRESIDENT: You get to site probably a bit before that because you have to get ready and be out and do whatever, hot seat change, whatever you're going to do, and it started raining at 8 o'clock and you got sent home. You wouldn't be paid four hours on top of the two you've already worked.
PN1119
MR MURDOCH: No. No.
PN1120
THE DEPUTY PRESIDENT: You'd be paid another two hours and you'd go home.
PN1121
MR MURDOCH: Correct, that is so.
PN1122
THE DEPUTY PRESIDENT: So the four hours. But if you're in the camp you would get eight hours or whatever the ordinary time component of your shift was, wouldn't you?
PN1123
MR MURDOCH: Is the Commission referring to where someone has never gone to site - - -
PN1124
THE DEPUTY PRESIDENT: The ordinary hours.
PN1125
MR MURDOCH: Yes.
PN1126
THE DEPUTY PRESIDENT: 34.4 would operate. So if the ordinary component of the shift was eight hours that's what you would get paid.
PN1127
MR MURDOCH: If that was the case, yes, but you'd get that. That's simply ordinary hours.
PN1128
THE DEPUTY PRESIDENT: Yes.
PN1129
MR MURDOCH: Yes.
PN1130
THE DEPUTY PRESIDENT: Yes, but I'm just saying you're still better off under 34.4 and if you were going to construe a clause overall, the people in the camp are going to be better off than the people onsite if they can't get to work for their shift.
PN1131
MR MURDOCH: Only on the first shift.
PN1132
THE DEPUTY PRESIDENT: Yes. But for the people onsite they're only going to get two hours or more, or they're going to get less. If the rain event happens before they've worked for four hours.
PN1133
MR MURDOCH: Yes.
PN1134
THE DEPUTY PRESIDENT: Or it happens after they've worked for four hours, they're going to be worse off than the people in the camp.
PN1135
MR MURDOCH: There is a potential for that to occur on the first shift.
PN1136
THE DEPUTY PRESIDENT: Yes.
PN1137
MR MURDOCH: But where the people who go to camp essentially have the equilibrium put back in their favour is that 34.1 on its face doesn't just apply to the first shift back.
PN1138
THE DEPUTY PRESIDENT: So you're saying, what, they keep getting paid when they go back to camp?
PN1139
MR MURDOCH: No, what I'm saying is that 34.4.
PN1140
THE DEPUTY PRESIDENT: Yes.
PN1141
MR MURDOCH: It has got the qualification in it that the ordinary hours' payment only occurs for the first rostered shift of lost time.
PN1142
THE DEPUTY PRESIDENT: Yes. Yes.
PN1143
MR MURDOCH: Therefore if there are a number of rostered shifts of lost time.
PN1144
THE DEPUTY PRESIDENT: Yes.
PN1145
MR MURDOCH: They only get the payment for the first.
PN1146
THE DEPUTY PRESIDENT: Yes.
PN1147
MR MURDOCH: Whereas under 34.1.
PN1148
THE DEPUTY PRESIDENT: Yes.
PN1149
MR MURDOCH: You might have a situation where there's rain over the course of a number of shifts that follow each other. If you happen to be in the situation where each of those shifts is affected you'll keep getting the payment.
PN1150
THE DEPUTY PRESIDENT: I guess so but realistically that's there for Cyclone Yasi that closes the site for five days, and it deals with the first day, or something like that. Because if there's an event that's going to close the site so people in camp can't get to the site then people who get sent back to camp probably won't be able to get their either. But I take your point, if it had cleared up by their next shift they would - yes, and then it started raining again. But gee, you know.
PN1151
MR MURDOCH: That's right, and can I just to further make good my point take the Commission to 34.3.
PN1152
THE DEPUTY PRESIDENT: Yes.
PN1153
MR MURDOCH: Which deals with the road is impassable for a number of days.
PN1154
THE DEPUTY PRESIDENT: It's only the first day.
PN1155
MR MURDOCH: Four hours for the first day.
PN1156
THE DEPUTY PRESIDENT: Yes, I understand. Yes.
PN1157
MR MURDOCH: But the clause clearly has serious problems. That's why we're here.
PN1158
THE DEPUTY PRESIDENT: But we can all agree it gives a benefit for the first day of the event. We just don't agree what the benefit is.
PN1159
MR MURDOCH: Well, it gives a benefit for the first day of the event and the extent to which you'll continue to get that benefit will depend upon which category you fall into. But what seems to be very clear is that unless you're on your first rostered shift back there's a cap of four hours, and in my submission that counts strongly against the acceptance that there was ever an intention - regardless of what the drafting - that there was ever an intention to have 34.1 operate in a way that the employee could elect, simply because they happened to get to site, to be paid for the full 12 hours because that puts them in an advantageous situation compared to anybody who's caught by 34.2, point 3 or point 4.
PN1160
THE DEPUTY PRESIDENT: Yes, I understand.
PN1161
MR MURDOCH: That's the point that I'm seeking to make.
PN1162
THE DEPUTY PRESIDENT: Yes, I understand.
PN1163
MR MURDOCH: Now the second point that - I'm sorry, the next point that I wish to make in respect of why in my submission the Commission should be minded to exercise its discretion in favour of making a variation is really, with respect, confirmed by the discussion that the Commission and I have had over the course of the last half an hour. This clause 34.4 when looked at in isolation or whether when looked at in the context of 34.2, point 3 and point 4, is clearly unworkable and it's a clause that is crying out, to put it bluntly, to be varied; or to put it in a different way, for the flaws in it to be remedied, and that's what my client seeks to do by the variation that it proposes.
PN1164
THE DEPUTY PRESIDENT: But your client's other option would have been to sit down with the employees and talk to them about what the exposure is, how many of them are affected, what their claims are and try to resolve it along those lines as well, given it has now got another agreement where the issue won't arise in the future.
PN1165
MR MURDOCH: Well, I'll come to that. Can I just deal with one further matter, and I'm not deflecting that issue but I want to come to that in a bit more detail later on if that's acceptable. Can I just deal next though with what has been happening and what the evidence reveals has been happening or what was happening over the time that the clause was in operation. Before I take you to the evidence though can I just ask the Commission to go to tab 22, that's the Telstra decision, and just ask the Commission to note what has been said in paragraphs 44 and 45 and - I'm sorry, I'll let the Commission read it.
PN1166
THE DEPUTY PRESIDENT: Yes.
PN1167
MR MURDOCH: Why I've taken the Commission to that is because I wouldn't want it to be thought that part of my client's argument is that the Commission can somehow take into account what has been happening on the ground as a way of ex post facto determining what the mutual intention of the parties were when the clause was struck. That's not my submission by taking you to the evidence of what's happening on the ground.
PN1168
Rather, the relevance of what's happening on the ground is to provide the Commission with some context as to how the clause has been operating, and to try and disavow what appears to be the position of the union that the clause that my client seeks to have inserted via the variation somehow drastically changes what was the status quo. To that end can I just take the Commission to some relevant aspects of the evidence.
PN1169
Can I ask you to go firstly to Mr Mulligan's first statement, and I don't ask the Commission to read it now but just to note that in paragraphs 16, 17 and 18 he gives some evidence as to why it is that as a result of changes in respect of accommodation arrangements, changes in respect of the number of people being on crew, and changes in respect of the extent to which people are being skilled up and trained up et cetera, he gives some evidence there as to why it is that over time there has been a greater emphasis perhaps on people being sent back as opposed to there being in earlier times. Then can I ask you to go next to - - -
PN1170
THE DEPUTY PRESIDENT: And it's perfectly possible - which is the point I was going to raise about the conduct of the parties - it's perfectly possible that an employee in those circumstances would simply think that "That's consistent with my understanding of the agreement". What's in Thiess' mind about "We don't have enough beds. We've made this decision to train people. We have inexperienced operators." For an operator, such as the operator who have gave evidence in the proceedings, that could simply be - that operator wouldn't necessarily know what Thiess' motivation was for applying the clause the way it used to do and the way it now does, as opposed to how he - how it affected him. He had the option and now he doesn't.
PN1171
MR MURDOCH: Well, the difficulty is that in my submission the evidence about having the option and now not having the option isn't as clear cut as it's sought to be.
PN1172
THE DEPUTY PRESIDENT: Yes.
PN1173
MR MURDOCH: As it's sought to be made out. There seems to be a suggestion in the way in which the case against my client is put, that for a long period of time there wasn't an emphasis on people going back and that suddenly there was an emphasis on people being sent back and that that was being done as some sort of commercial reason and there was a fork in the road that was come to, but the point that can be gleaned from paragraph 16, 17 and 18 is that simply because over time more people might have been sent back doesn't of itself indicate that Thiess changed its approach to the application of the clause.
PN1174
It can be just as explainable by the facts changing in respect of the requirement for people to stay or, put a different way, why they couldn't be sent back, taking into account the accommodation situation. That's the relevance of paragraph 16, 17 and 18.
PN1175
Can I then ask the Commission to go to what's set out in paragraphs 33 to 36 of Mr Mulligan's statement. Now, that's where he sets it out, his view as to the application of the clause and you will recall the Mr Pattel also gave some evidence in that respect to similar effect.
PN1176
Now, there was some criticism in the course of cross-examination of both Mr Mulligan and Mr Pattel in respect of, "Well, you know," and I'm paraphrasing, "you're the managers. You know, you might think this is happening. You don't know what's happening on the ground." Well, there's a problem with that analysis on a number of levels. The first problem is that Mr Mulligan and Mr Pattel are the manager.
PN1177
Mr Pattel has given evidence of, as one would expect, close liaison with this supervisors on each shift, in particular on shifts where these wet weather events occur and further, as came out in the evidence of Mr Hardwick yesterday, there was evidence of - as early as January 2013 - not some supervisor giving the direction to go back, but Mr Pattel.
PN1178
So not only did Mr Mulligan and Mr Pattel give evidence as to what they understand to be the case, Mr Pattel's evidence demonstrates that it wasn't just his understanding, it was his actions, as early as January 2013.
PN1179
If we then go to Mr Hardwick's evidence, you will recall that in his paragraph 9, he sought to put forward all of these various days as being days upon which the wet weather clause was invoked. Now, one imagines that the reason why he did that was because he wished to provide evidence himself of the wet weather clause being not just invoked, but invoked in a particular way; that being on the CFMEU argument that rather than employees being directed to go home, they were simply given the option as to whether to stay or whether to go. But when one looks at the diary notes that were kept, out of the 20 or so diary notes that are referred to there and one sees in the bundle, it's only in respect of five days that there is any reference at all to any direction being given or, as he would have it, employees being given an option.
PN1180
So his evidence really is very unhelpful in respect of attempting to demonstrate that there was a consistent approach of Thiess one way that then changed. What his evidence does, in fact, highlight is that as early as January 2013, there's evidence of Mr Pattel on two occasions in January 2013 acting consistently with what Thiess says was its view all along and consistently with that Thiess seeks so have applied by the variation. One will search in vain in respect of the majority of the days that Mr Hardwick refers to there being any evidence, any reference at all to interactions with management or him electing to stay, et cetera.
PN1181
So, in my submission, when one looks at Mr Hardwick's notes, perhaps the more relevant notes are the ones from 24 January, 26 January 2013, and then 10 January 2014, where he records being given a direction, and then there are two other notes that are of relevance, one being 15 July 2012 where he refers to an option to go, but the curious thing about that day is that that was a day where he wanted to go, because he had some sick leave of some description and then the other day in which he refers to an option to go is in respect of 7 May 2013, which is in the middle of his notes about directions.
PN1182
And in respect of 7 May, to my recall his evidence in respect of that day is that he hadn't been given an option to go before and - and this is important - that that note is inconsistent with what appears to have been his past practice of making no records in his notes as to being given any option to stay or go.
PN1183
So ultimately, in my submission, what one gets from the notes is this; there's Thiess putting forward what its view is. There is support for Thiess' view in the notes and I concede there's also some support in the notes for what Mr Hardwick says is the CFMEU's approach, that being the existence of options, but what the notes and Mr Hardwick's evidence do not demonstrate is that there was a particular practice on the part of Thiess of employees being given the option to go, which then changed to being a practice of employees being told to go.
PN1184
So the notes provide no satisfactory evidence of there being some status quo that Thiess suddenly changed. In fact, you will recall that the only time that the matter - that there's actual evidence of this issue being disputed is in respect of after January of 2014. There doesn't appear to be any actual evidence before the Commission of there being a dispute about the matter following the directions being given in January 2013.
PN1185
There's this letter floated around that Mr Pierce provided to Mr Wood, but the company's evidence is that it never received the letter. Mr Pierce conceded that he can't independently say that the letter was ever sent and Mr Hardwick similarly, when asked about the matter, wasn't able to provide any evidence as to any actual proof of the letter being sent in 2013.
PN1186
So we've got the direction at the beginning of 2013 on two occasions, and then no evidence of it actually being put formally as a dispute for a further 12 months. Then once one gets to 2014, there's interaction between Mr Hardwick and his supervisor close to the date. There is then, it seems, a bit of a delay as a result of there being confusion on the part of Mr Pierce and Mr Hardwick as to who was doing what. Ultimately the matter came before the Commission late last year and recommendation was being made.
PN1187
That history is hardly demonstrative of there being some sudden change in Thiess' position that had the workforce collectively up in arms about the matter?‑‑‑So just finalising the submissions in respect of the evidence, it doesn't demonstrate there being some status quo that was changed. At best, it demonstrates that there may have been some understandable debate between the parties as to what Thiess' rights under the clause were and what the employees' rights under the clause were and in light of the way in which the clause is framed, that's hardly surprising.
PN1188
Can I then move to deal with the issue of retrospectivity, which picks up an issue that you raised, your Honour, earlier as well as other matters. The first point to make in respect of retrospectivity is that under the relevant provision there is the power to make a retrospective variation.
PN1189
Now, I accept that there is an issue in respect of the existence of the new agreement that I will come to a moment. Before I do, could I just ask you to take up the Ambulance decision again. That should be tab 1, I think, in the bundle. If the Commission could just please go to paragraph 30.
PN1190
MR MURDOCH: Why I am taking you to this paragraph is because you will see there that the reason why Watson VP - the expressed reason for Watson VP making a retrospective variation was that his Honour was satisfied the variation properly reflects the intents of the parties and that the dispute relates to practices at the time the agreement was made, et cetera.
PN1191
Now, it might be said by those who oppose this variation, "Well, the express grounds there for making that retrospective variation don't apply here." Can I say the following in respect of that; I've addressed you on the clause and why it is that clause 34.1, in the context of the remainder of clause 34 itself can't be readily accepted to reflect an intention of the parties that the employer should have the option.
PN1192
I have also addressed you on the practices, since the time the agreement was made and I've made submissions to you as to why this is not a case where the Commission would readily accept that there's been some change by Thiess in the course of the life of the agreement. So whilst the facts in this case certainly aren't as crisp as those in the ambulance decision, there are factors that are related to the reasons why Watson VP made that variation retrospective, that are also present here.
PN1193
Can I then deal with the matter that you raised with me earlier about there being other options et cetera, available rather than seeking the variation.
PN1194
In light of some comments that the Commission made earlier in respect of a concern about people potentially having claims, you have seen that there was some correspondence between the parties after the recommendation was provided, and you will have noted, if you can take up exhibit 7, that - I withdraw that. If you take up exhibit 6 and exhibit 7, there as in effect a letter from the union which is exhibit 6 in which the recommendation was referred to et cetera.
PN1195
Then the Commission will see in the last two paragraphs, paragraph 56, the recommendations referred to and then there is the union setting forward its position they're in respect of what is referred to as "reinstatement is to be calculated", and then a request to provide Thiess' intention in that respect.
PN1196
Then over the page, the union puts Thiess on notice and then, lastly, reference to civil penalty orders and the like. So the union - and I'm not being critical, but they are throwing down the gauntlet to Thiess, as it were, in respect of this matter going forward. Thiess then responds in its letter of 3 February 2015, and you will note that Thiess says that it's considering a position in light of the recommendation to have to determine how it will progress et cetera, and then Thiess sets out a number of dot points on page 1 in respect of its understanding of the recommendation and perhaps some aspects of the recommendation are favourable to Thiess, and then over the page Thiess invites the union to do something.
PN1197
It's clear what is being invited there, and what happens thereafter from the union? Nothing. This letter is sent to the union on 3 February 2015, and Mr Pierce's evidence was there was no response provided to this letter between - and this was in response to a question that the Commission asked him; no response to the Thiess' letter of 3 February 2015, prior to the application for the variation being filed.
PN1198
The application for the variation was filed on 24 March, so some seven weeks elapsed where despite the union being asked to respond to Thiess' letter, nothing was forthcoming. So this is not a situation where Thiess hasn't made some attempts to deal with the matter, but no response.
PN1199
Secondly, insofar as the Commission might be concerned about there being claims, in my submission whilst - and this is not to belittle the potential for claims, but the claims really are in the abstract. The Commission made certain comments yesterday morning. Mr Pierce then gave evidence. There is no evidence before the Commission as to how many claims there might be, how much the claims might be in respect of amount, what period the claims might relate to; how many employees might be affected and, in fact, Mr Pierce himself accepted that the union was at an embryonic stage in respect of the claims.
PN1200
So despite being invited to provide some further information to assist the Commission in weighing up that aspect of things in respect of the exercise of discretion, nothing of any moment was forthcoming. You will recall that this is not a case where objectively the union is coming from a standing start. Mr Hardwick has put on, in his material, what it claims to be disputes being lodged by some 99 people. Well, the Commission has heard nothing from Mr Hardwick and nothing from the union in respect of what the position of those 99 people might be, in respect of any claims.
PN1201
So in my submission, any concern about what claims there might be can really be given very little weight, given the lack of information that's been provided, notwithstanding that it appears that they at least know where they might like to start in respect of the issue.
PN1202
Can I then deal lastly with the issue of the effect, if any, of the approval of the 2015 agreement? When I addressed you yesterday, I referred to sections 54 and 58 of the Fair Work Act. I don't ask you to take them up, because they are in fact not the sections that one goes to. There is an analogue provision in the transitional provisions that I will take the Commission to. If the Commission can go to - - -
PN1203
THE DEPUTY PRESIDENT: I think this has only got excerpts of the - my version of the Act has only got some excerpts of the Transitional Provisions and Consequential Amendments Act, so I just need to make sure that I've got the ones that you are referring to.
PN1204
MR MURDOCH: Well, I will inform the Commission which ones I am referring to and you can take it from there perhaps. If the Commission can go, please, to schedule 3 - this is the Transitional Act, of course.
PN1205
THE DEPUTY PRESIDENT: Yes.
PN1206
MR MURDOCH: Schedule 3, part 5.
PN1207
THE DEPUTY PRESIDENT: Yes.
PN1208
MR MURDOCH: Item 30.
PN1209
THE DEPUTY PRESIDENT: Yes.
PN1210
MR MURDOCH: Subsection (2):
PN1211
If an enterprise agreement or workplace determination under the FW Act starts to apply to an employee or employer, or other person in relation to the employee, then a collective agreement based transitional instrument ceases to cover and can never again cover the employee or the employer or other person in relation to the employee.
PN1212
That on my research seems to be the analogue provision in the transitional provisions to section 54 of the Fair Work Act, which as the Commission knows, applies when an enterprise agreement is replaced.
PN1213
THE DEPUTY PRESIDENT: Yes.
PN1214
MR MURDOCH: Now, of course what section 30(2) doesn't say is that it's deemed that the, what I might call, "prior agreement" never covered the relevant employee or employer, or that it should be deemed that the prior agreement never had any existence at all, and of course it would be surprising if it did say that, because by virtue of schedule 16 there is the capacity under schedule 16, item 2.1, and the provisions that follow in schedule 16 for action to be taken when someone contravenes a term in an agreement-based transitional instrument that applies to a person. That's the analogue, of course, of section 50 in the Fair Work Act.
PN1215
THE DEPUTY PRESIDENT: Is there any provision about the difference between applying and covering that - would it be that the collective agreement-based transitional instrument would continue to apply, notwithstanding that it didn't cover? Because there's a difference between when an agreement covers an employee - - -
PN1216
MR MURDOCH: Yes, there is.
PN1217
THE DEPUTY PRESIDENT: - - - and when it applies to an employee and I just wondered if they've only - because if you look at - I haven't looked at this Mr Murdoch, I have to say. Item 30(1) talks about an individual agreement‑based transitional instrument applying.
PN1218
MR MURDOCH: Yes.
PN1219
THE DEPUTY PRESIDENT: Then an enterprise agreement - so it treats each individual agreement-based transitional instrument differently and says while they apply, then an enterprise agreement or workplace determination doesn't apply and then for a collective agreement-based transitional instrument, it talks about when something applies and then agreement no longer covers and can never cover again, but does that mean it no longer applies?
PN1220
So for the purpose of an unpaid wages claim or something like that, it would still apply, it just wouldn't cover for the purposes of - was that what they intended? I have no idea. The transitional provisions give me a headache, and I try to avoid reading them as much as I humanly can.
PN1221
MR MURDOCH: Well, taking that a step further, when one looks at section - going back to the Fair Work Act - - -
PN1222
THE DEPUTY PRESIDENT: Yes.
PN1223
MR MURDOCH: When one looks at section 54(2), I refer to it as being the analogue, but there might be some devil in the detail, so to speak, because:
PN1224
An enterprise agreement ceases to operate on the earlier of the following days: (a) the day on which a termination of the agreement comes into operation under section 224 or 227; (b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies
PN1225
And then subsection (3):
PN1226
An enterprise agreement that has ceased to operate can never operate again.
PN1227
So the language that is applied under section 54 is this concept of ceasing to operate and not operating again. Whereas, when one goes to section 30, subsection (2), there is this concept of "ceases to cover" - - -
PN1228
THE DEPUTY PRESIDENT: Yes.
PN1229
MR MURDOCH: And can never again cover the employee. Now, I've not gone back and checked, but there is a difference between the acts in respect of when the word "coverage" can be used. I'm putting that broadly.
PN1230
THE DEPUTY PRESIDENT: Yes.
PN1231
MR MURDOCH: So it may well be that that nuance really only relates to that and it's more a terminology nuance as opposed to a nuance of a practical effect.
PN1232
THE DEPUTY PRESIDENT: If I need anything further on it, I will let the parties know. I think that's probably - - -
PN1233
MR MURDOCH: I suppose that the number of what I am submitting is - and I'll be making the same submissions, whether it was under section 54 or under section 30(2), the sting of those sections is to prevent the agreement that has been replaced from applying into the future or operating into the future.
PN1234
THE DEPUTY PRESIDENT: It doesn't stop it operating in the past.
PN1235
MR MURDOCH: It can't logically have the effect of stopping it operating in the past. If it had that effect, well then people who had rights and had liabilities, that would be affected.
PN1236
THE DEPUTY PRESIDENT: Yes, I understand.
PN1237
MR MURDOCH: So in my submission - - -
PN1238
THE DEPUTY PRESIDENT: It might be something we don't need to trouble ourselves with.
PN1239
MR MURDOCH: Yes. So in my submission the agreement still has, to use a different term, "life" prior to the new agreement coming in and as long as it has that form of life, in my submission, a variation- there's no reason why a variation application can't be made and, in fact, there may well be good reasons as to why the Commission might be more inclined to exercise its discretion to vary in such a circumstances, because the actual period in respect of which the variation is to operate is fixed and closed, whereas in other circumstances, the variations is being made and it just continues until whatever happens down the track happens in respect of the relevant agreement.
PN1240
That's not the situation here. The Commission is only considering a variation in respect of a confined period, insofar as after July 2015, well, that's been taken care of as it were by the new agreement.
PN1241
THE DEPUTY PRESIDENT: Yes.
PN1242
MR MURDOCH: Just excuse me for one moment.
PN1243
THE DEPUTY PRESIDENT: Yes. If parties would like to put in - sorry, I'm listening, that's a good point. If parties would like to put in any information about what the award provided at the time with respect to stand downs, and any documents they might have filed with the agreement with the workplace authority.
PN1244
MR MURDOCH: That might be a better way to go, with respect, rather than trying to provide you with answers to those various questions.
PN1245
THE DEPUTY PRESIDENT: I'm going to try and get the document from the Workplace Authority and if I do, I will provide them to the parties and invite you to make any submissions in relation to them that you might with to make.
PN1246
MR MURDOCH: Without wanting to overcomplicate and perhaps I could just simplify - perhaps, once my friend has made his submissions, there might be some discussion about some timing in respect to providing the information, certainly from our side, to the Commission.
PN1247
THE DEPUTY PRESIDENT: Yes, thank you.
PN1248
MR MURDOCH: They're my submissions.
PN1249
THE DEPUTY PRESIDENT: Thanks, Mr Murdoch. Mr Newman.
PN1250
MR NEWMAN: Yes, not to complicate matters, but just quickly looking through item 3 seems to cover - seems to set out differences between covering and application for the purposes of the TCPA Act.
PN1251
THE DEPUTY PRESIDENT: Sorry, what - item 3?
PN1252
MR NEWMAN: Item 3.
PN1253
THE DEPUTY PRESIDENT: Yes, right at the beginning.
PN1254
MR NEWMAN: Yes. I haven't sort of - I just sort of started looking through that, but I feel the answer may lay there.
PN1255
THE DEPUTY PRESIDENT: Item 3 in which schedule?
PN1256
MR NEWMAN: Yes. Item 3 of schedule 3 part 2.
PN1257
THE DEPUTY PRESIDENT: Yes. There you go, there's a definition, "A transitional instrument covers - - - - "
PN1258
MR NEWMAN: There seems to be a note with the definition of "applying" as well on the notation - well, certainly on my legislation.
PN1259
THE DEPUTY PRESIDENT: All right.
PN1260
MR NEWMAN: Deputy President, as outlined, the application for an ambiguity or uncertainty, to vary agreements; there are a number of limbs and tests, and my friend has gone through them and I intend to go through them as well to provide our submissions in relation to that.
PN1261
Those three tests are very simple. The first decision is to decide whether or not an ambiguity or uncertainty exists. Then if one does exist, the Commission then has the job of determining whether or not the variation sought would remedy the ambiguity or uncertainty to reflect the mutual intention of the parties at the time the agreement as made. Then the last test is to consider whether or not the Commission should exercise such discretion. The applicant's submissions in contention is (a) that there is an ambiguity or uncertainty.
PN1262
Secondly, they say seek to correct that with the application and the variations sought, and urge you to exercise your discretion as such. The union's position, and I intend to set these out more thoroughly, but to surmise is simply that there is no ambiguity or uncertainty at this point in time.
PN1263
There is further than that, if the Commission is of the view that there is an ambiguity or uncertainty, that the evidence provided in the hearing yesterday does not go anyway to satisfying the Commission that what the mutual intention of the parties at the time the agreement was made in 2009 was and further, even if the conduct that has been shown by the parties subsequent to the agreement being made in 2009 is used by the Commission, that conduct does not show what that mutual intention was when the agreement was made in 2009.
PN1264
Finally, we urge the Commission, even if they are of the view that the variation sought would remedy any ambiguity or uncertainty, we urge the Commission to refrain from using its discretion as we submit that the application is the inappropriate way to resolve the disputation between the parties. For all those reasons, we say that the application should be dismissed.
PN1265
Now, my friend has provided you with a large application of authorities. I have copies of them as well, but I don't think it is necessary. I intend to rely on similar authorities. Indeed, it really does seem that between the parties there seems to be very little difference in terms of what the relevant material is and what the relevant authorities are in relation to ambiguity and uncertainty. What there is though, is a vast difference in how those authorities should be applied.
PN1266
Regarding the first issue about whether or not there is an ambiguity of uncertainty, the authorities that have been outlined and supplied in Beltana and Tenix briefly surmise that the Commission must make an objective assessment about whether or not an ambiguity exists and that the mutual intention of the parties is not relevant for this purpose.
PN1267
So what we are suggesting is that at this first initial point it becomes an objective assessment on what the clause says. What the parties have done subsequent to that is not relevant to that test and that the Commission must make an objective assessment. The authorities also highlight that it's not enough for the parties to just have mere rival contentions as to what the construction of the clause is, but what has to be done is the task has to be undertaken of what the proper construction of the clause is and whether or not that clause is susceptible to more than one meaning.
PN1268
So in order to undertake that task and perform a proper construction of the clause, the union's position is that the authority in the test is outlined in Golden Cockerel v AMIEU, in that those tests that should be applied to clause 34 to determine whether or not the clause is ambiguous or uncertain or whether or not the plain ordinary meaning can be ascertained.
PN1269
The applicant's position is that the plain and ordinary meaning - that there is multiple meanings and that in particular they highlight the terminology in clause 34.1 that says the "employee/Thiess" is the ambiguity - creates the ambiguity and uncertainty, and as a result of that state that's open to a number of outcomes.
PN1270
We disagree with that position and we disagree with position because when one looks at those words, the plain language of "employee/Thiess" is as you correctly pointed out and put to my learned friend is that those words can mean "employees and/or Thiess", or as you put it in clause 28 of the recommendations, "employees or Thiess."
PN1271
So one has to remember that, using the language of Kucks, that this has not been drafted by lawyers, it has been drafted by practical men with a practical bent and so therefore it's not a perfect clause and nobody is going to agree that it's a perfect cause and as has been highlighted there leaves a lot to be desired in relation to the construction of the clause. However, just because there is, the clause isn't perfect, and bearing in mind that it was drafted by practical men, the clause still can be ascertained for its plain and ordinary meaning.
PN1272
The thing with this case, and this is what I fail to understand about the applicant's position is the test has already been applied. The test in Golden Cockerel to determine the plain and ordinary meaning of clause 34.1 has already been applied and an outcome is already been reached. That is highlighted in the recommendation and I refer to, and clause 28 in particular where it says:
PN1273
The ordinary meaning, where two words are separated by a forward slash, is to read those words so that the /is a substitute for the conjunction "or". The fact that the terms "employee" or "Thiess" where they appear in clause 31.1.
PN1274
But I think that's the old agreement and it's 34.1 in the current agreement:
PN1275
Is separated by a forward slash means that the clause is read so that the terms "employee/Thiess" is read as "employee or Thiess." This, in my view, is the ordinary meaning of the words. If the four options were (indistinct) at the sole discretion of Thiess, which is what the applicant is maintaining, then would be no need to include a reference to the employees having any option at all.
PN1276
Right there, this is where this case should fail and should be dismissed. The plain and ordinary meaning of 34.1 has been established.
PN1277
THE DEPUTY PRESIDENT: Well, is that right? Because if they - don't they need to decide if they want to take leave or not? If they want to use their leave or not, to be paid for the remainder of the shift? They have to have some option.
PN1278
MR NEWMAN: Yes, the employee has some options. The employee has options and Thiess has options.
PN1279
THE DEPUTY PRESIDENT: But then to say that if you - that if Thiess' argument was right, there would be no reference to the employees at all in the clause, isn't correct, is it?
PN1280
MR NEWMAN: Well, I am reading what you have put in the recommendation. The issue is that this clause is, whilst not ideal, it's designed to be a very malleable clause. As we say from all the evidence yesterday, anything can happen on any wet weather day. There could be numerous wet weather events occurring over the pit, there could be heavy weather, there could be low weather, there could be training to be performed, there could be numerous issues that could require a multitude of different answers.
PN1281
So that's why there is four options out there, and the employee and Thiess has the option of four of them, once that prerequisite has been met, which is that the employer - that Thiess decides which crews are required for the operation of the small batches required for the pumping. Once that's decided, it will depend on the situation, but the key is that the employee or Thiess has those options.
PN1282
Not "Thiess has those options and the employee just has one or two of those options." The employee or Thiess has a multitude, and we say that that's the plain and ordinary meaning. Right there and then, the plain and ordinary meaning has been ascertained, therefore there is no ambiguity or uncertainty. The clause has the plain ordinary meaning and how it could be operated, therefore there is no ambiguity or uncertainty and there is no need to vary the agreement.
PN1283
THE DEPUTY PRESIDENT: Thank you, I understand.
PN1284
MR NEWMAN: Now, also, I just want to highlight and touch on one of the key points or one of the points that's key for this matter is that when ascertaining whether or not an ambiguity or uncertainty is in an agreement there can be rival contentions and, quite clearly, there are rival contentions between the union and the applicant on this, but what has to be considered, and this is highlighted in Beltana and Grocon v CFMEU, is that when making of the assessment the Commission should be avoiding contentions which are self-serving.
PN1285
Now, as we've been through and discussed and I've highlighted, the agreement is now - the previous union collective agreement, the subject of this application for variation no longer applies to the employees and there is a new union collective agreement - a new employee enterprise agreement in place. That agreement has a different wet weather clause; let's hope that the meaning is now ascertained between the parties and there's going to be no further disputation around each party's rights and obligations.
PN1286
So that means that there was no potential disagreement for any future wet weather events, however, what is of concern is that the previous instances in the past that were subject to the disputation and whether or not those issues would create a potential for a contravention of the agreement which entitles the employees to some form of compensation. As has been put in the evidence we put in, 99 employees have put in disputation in relation to this, those employees, as well as other employees, would have a claim to - under the previous agreement to make an application for a contravention and/or seek compensation for that, or have penalties imposed.
PN1287
The company has - and I will touch on this further, but I'm just going to touch on it briefly here. Exhibit 6 and exhibit 7 that Mr Murdoch took you to showed the correspondence between the parties, subsequent to the recommendation being made. Now, Mr Murdoch highlighted that in the correspondence in exhibit 7 by Thiess that they asked questions from the union which they didn't get a response to. Now, that's true, however, if you have a look at exhibit 7, the first part of exhibit 7, as well as the attachment to exhibit 6, which was the memo by Mr Peter Fuss that was given to the employees, as well as the evidence that Mr Hardwick gave about the meeting that was held on the 22nd, the day after the recommendation was released, you start seeing a picture here of a company that didn't want to abide by the recommendation.
PN1288
You're seeing a picture here of a company that told their employees that they didn't agree with it and they were going to continue on with it. You see a picture by the company that said, "We don't have a view on what's going to - on what our position is in relation to recommendations and we will get back to you on that." Strangely enough, they didn't get back to the union either.
PN1289
There was no further correspondence entered into by Thiess in relation to what their view was in relation to the recommendations, other than that correspondence and the next time we heard anything from them was when they filed this application to vary. That was their response. So we submit that that is a background that should be taken into consideration, because we say it goes to a self-serving purpose here by Thiess, which is to try and eradicate this issue of a contravention.
PN1290
It's "Nip it in the bud before it can go anywhere by the employees and snuff out their rights." That is an ulterior motive and purpose that Thiess have in making this application, and we say it's a self-serving one, that the Commission should take into consideration.
PN1291
THE DEPUTY PRESIDENT: Well, Mr Newman, if you wanted me to take that into consideration, it would have been pretty easy to put on some evidence about. Mr Hardwick, I don't even know what he is claiming. "On X day I was forced to take leave, this many hours." I could go through his entire statement and I would be none the wiser about what the exposure is.
PN1292
MR NEWMAN: Yes, I understand that and we're - my submission is - - -
PN1293
THE DEPUTY PRESIDENT: So how am I snuffing out anything?
PN1294
MR NEWMAN: My submission to that is that that is an argument for contravention, which is an argument for a different venue and a different jurisdiction. No evidence was put on, because this is an argument in relation to ambiguity and uncertainty, that the applicant had brought on in order to avoid having that argument, and that's argument for another venue, which we say is the more appropriate thing and which we say goes to - which goes to my ultimate argument about discretion.
PN1295
That is an argument for discretion. It's an argument for another venue and the Commission should refrain from exercising their discretion and the Commission has that, and I refer to the case of - I think it's the airlines, Re APIA - Re Qantas Airways Case [2007] where the - where if there is a more appropriate venue to deal with an ambiguity or uncertainty, then the discretion should be exercised not to make that variation and it should be dealt with in a more appropriate venue.
PN1296
THE DEPUTY PRESIDENT: Well, you could have written back to Thiess in February and said, "No, we don't want to have the matter arbitrated. We think that the more appropriate venue to determine this is the Federal Circuit Court, or wherever, with respect to unpaid wages claim, and here is what the claim would be."
PN1297
MR NEWMAN: Yes, that is an option. However, they were put on notice about what the intention was. This is not something that simply - - -
PN1298
THE DEPUTY PRESIDENT: How were they put on notice about what the intention was?
PN1299
MR NEWMAN: Well, the intention - they were put on notice in exhibit 6. They said that that was the view of the union and the employees.
PN1300
THE DEPUTY PRESIDENT: Yes.
PN1301
MR NEWMAN: That that was what they were going for.
PN1302
THE DEPUTY PRESIDENT: So by your non-response to their letter, they're - the conclusion is - - -
PN1303
MR NEWMAN: The response to their letter was to say, 'We haven't made our mind up. If we want to make - in order to help us make up our mind, if you could give us the following, it would be appreciated." There is no formal requirement for us to do that. The union felt, given what had occurred in the alternative venue, and particularly what the evidence of Mr Hardwick did give about the company's position was that there would be - that the response was unnecessary and that we would start compiling a case for another jurisdiction, which is our entitlement to do and those investigations and discussions were embryonic, so there is - so that those discussions that you discussed in terms of calculating what they were, what the loss was, calculating the incidences hadn't been properly articulated yet, but that doesn't mean they don't have right. That doesn't mean that they are not there.
PN1304
By putting in - by approving this application, you - the Commission would eliminate any rights that they would have. While they are not properly articulated, they are still there.
PN1305
THE DEPUTY PRESIDENT: Well, on some level, there could be significant difficulty establishing that because if, as Thiess points out in its letter, if some - let's assume some employees got benefits on the second day of a wet weather event that they weren't strictly entitled to, under the interpretation that the recommendation - assume the recommendation interpretation is right; it might not be. I didn't get very detailed argument about it. It might not be, but assume it's right, they could be entitled to an equitable offset for payments they've made they didn't have to make.
PN1306
MR NEWMAN: Absolutely and there - - -
PN1307
THE DEPUTY PRESIDENT: It could be very difficult for people who filled out an application for leave form to come back now and say, "I was coerced into taking leave," particularly when it was a long time ago and I would have thought, here's Mr Hardwick who says he's so aggrieved he's coming to give evidence and he can't even tell me what exactly he says he is entitled to that he didn't get. Where was he coerced to do anything? There's no evidence.
PN1308
MR NEWMAN: Absolutely, and those are questions and evidence and submissions that need to be made in another venue.
PN1309
THE DEPUTY PRESIDENT: Well, if they're relevant - - -
PN1310
MR NEWMAN: For a venue for whether or not there's a contravention. Not whether or not there's an ambiguity.
PN1311
THE DEPUTY PRESIDENT: They're not relevant to the ambiguity, I accept that, but they are relevant to the discretion and if the union is going to stand there and say, "You should not exercise the discretion," or "A thing that weighs against it significantly is you're going to snuff out all these rights." I would have thought you could give me even a scintilla of evidence about what Mr Hardwick alleges he's lost if his right gets snuffed out, and I've got nothing.
PN1312
MR NEWMAN: On the very minimum - the very minimum - you've got the January 2014 event, where he was sent home and he put a dispute in about it. At the very minimum you've got that one. So there's eight hours right there and then, and there's 99 other employees that - - -
PN1313
THE DEPUTY PRESIDENT: Where is that?
PN1314
MR NEWMAN: The event of 10 January 2014.
PN1315
THE DEPUTY PRESIDENT: 10 January.
PN1316
MR NEWMAN: Which triggered the entire event. At the very minimum you've got that.
PN1317
THE DEPUTY PRESIDENT: Well, it's not - they would have got four hours, wouldn't they? So they got four hours, so - - -
PN1318
MR NEWMAN: So it's a claim for eight hours. At the very minimum - - -
PN1319
THE DEPUTY PRESIDENT: No, it's a claim for four hours at the very minimum, because they already got paid four, didn't they?
PN1320
MR NEWMAN: They got four, but then you've got the balance of the shift which he's claimed he was entitled to.
PN1321
THE DEPUTY PRESIDENT: Which includes some overtime, doesn't it? I don't even know that, do I?
PN1322
MR NEWMAN: Well, but that - the issue is the claim doesn't have to be quantified, it just has to be there.
PN1323
THE DEPUTY PRESIDENT: All right. I understand your submissions.
PN1324
MR NEWMAN: It doesn't have to be quantified, it just has to be there and if the application is proved, that claim goes.
PN1325
THE DEPUTY PRESIDENT: As opposed to leaving people floating around in the Never Never with Thiess exposed potentially to claims?
PN1326
MR NEWMAN: Well, the evidence that was put forward was that those - the investigations into those proceedings were put on hold as a result of this application. So that was the evidence that was put forward. So they weren't on hold, and that was only seven weeks. So seven weeks is not a great deal of time to deal with the matter that you are discussing, bearing in mind that you have to deal with the transitional legislation as well, because this wouldn't be a straight breach of an agreement under section 50 as you would normally be for an enterprise agreement. This is dealing with a breach of a previous union collective agreement.
PN1327
So these are not easy, simple issues that can be clarified and articulated and enable to have an authoritative position on within seven weeks. So there is not - there was only a finite period of time here, and hence the reason why they were only embryonic, before the application was made in this forum and the decision was made to put those on hold. Now, that doesn't - those rights haven't extinguished, they have six years to do that.
PN1328
So they are our reasons in relation to why we say that there is no ambiguity or uncertainty. We say that it should be dismissed for those reasons. Now, if the Commission is of the view that there is an ambiguity or uncertainty, then the next decision is to decide whether or not that ambiguity or uncertainty - the Commission should exercise their discretion to remove it, and set in place an alternative proposal that's been put forward by the applicant.
PN1329
Now, what has to be done here, and the test is set out in the Ambulance Victoria v LHMU case is that what is sought by the applicant has to reflect the mutual intention of the parties at the time the agreement was made. So in relation to that, and as was pointed out by the applicant is that none of the witnesses provided evidence in relation to what the party's intent was at the time the agreement was made, because none of them were employed by the applicant at the time, and Mr Pierce wasn't party to the negotiations.
PN1330
So there is no direct evidence in front of you in relation to what the mutual intention was at the time the agreement was made. The best that the applicant can come up with was an alleged conversation that he had when he took over the SSC - was Mr Mulligan's evidence in relation to taking over the SSC responsibilities in 2011 where he had a discussion about the entirety of the enterprise agreement, the entirety of operations under the mine, and the entirety of his obligations under the Coal Mine Safety and Health Act, and he says on the basis of those discussions, that was his understanding of the clause.
PN1331
Now, not only is that hearsay, not only is there no notes or any other sort of corroborating evidence to that conversation, it's just simply hearsay and shouldn't be relied upon by the Commission in terms of evidence of what the mutual intention was at the time the agreement was made. Now, my friend did make mention that neither party had put that on and the union agrees with that position but the union doesn't have the onus of putting on that evidence.
PN1332
It is the applicant that has to put on the evidence to convince the Commission that what the mutual intention was by the parties at the time agreement was made and we say the applicant has failed in that regard that failed to provide that evidence. It's not up to the union to provide that for them, so we say on that basis that again the disagreement should be dismissed. There is just simply no evidence of what the parties intended. So this variation is being sought by the applicant.
PN1333
The Commission cannot be assured that that variation would seek to remedy any ambiguity or uncertainty, because we don't know what the parties intended. There has been multitudes of hypotheses floated around. We maintain our original position that there is no ambiguity or uncertainty, but there have been multiple issues and conversations floating around about what it could be in their rival contentions, but there is no evidence to suggest what the actual framers intended, and if there is no evidence of that we say you just cannot be assured that that variation that the applicant is seeking will remedy that ambiguity or uncertainty.
PN1334
However, the bulk of the applicant's case in this matter is to rely upon the subsequent conduct of the parties, and that the subsequent conduct of the parties will give the Commission the assurances that they need of what the mutual intention of the parties was at the time the agreement was made. The union disagrees with that position. Now, it disagrees with that position because, again, it comes back to the evidence that was presented yesterday and we say that that evidence does not lead - the subsequent conduct of the parties does not lead to a conclusion about what those - what the people who made the agreement intended.
PN1335
Now, let's go to Mr Mulligan's evidence. Mr Mulligan's evidence is in the union's position very unreliable and, we would say, somewhat self-serving. The majority of Mr Mulligan's statement, both in reply and initially, is taken up with explaining his personal belief on the operation of the clause. Well, that may be his personal belief, but that is not evidence of what the parties intended at the time the agreement was made.
PN1336
However, he seeks to support the statements by providing two types of information in his initial statement. One of them is the wet weather reports and, secondly, was a form of spreadsheet data that indicated that employees on certain wet weather events left site and were - took annual leave for the day, and it was his proposition that those employees were directed to leave site and weren't given the option along the lines of what he says.
PN1337
So we need to have a look at that data, and I want to particularly point to one of them which is CM11. I also want to refer to CM13 as well. I will refer to both of them. CM11 is a rain event that occurred on the 24th of the 2nd. Firstly, I should go back a second; the issue with the weather reports, I don't think that's in contention.
PN1338
Mr Hardwick's evidence that he supplied clearly shows there were wet weather events and that production was halted for some reason and clause 34, we say he says clause 34 was invoked which indicates that there was some form of wet weather event on those days. So I don't think that those issues of wet weather are in contention. But what this data is is a compilation of a spreadsheet.
PN1339
Now, those spreadsheets - and it shows it up better on CM13 - has writing on it. Now, that writing is a commentary on what occurred that day. It's not actual statistical data. The rest of it's just statistical data - you know, what the person was on, the date, the pay codes and some weather - what they took on leave and what they were operating. So it's hard statistical data.
PN1340
What has given that data context is the writing underneath. Now that writing was done by - and under cross-examination explained this - it was done by a junior HR officer who at the time had less than six months experience. So not only would she have had no practical knowledge of what occurred that day, she's writing is based on - we don't know what she was writing it on. We don't know what she is basing this view on, so the context that this data has been given, which Mr Mulligan then goes to rely upon has - we don't know where that comes from.
PN1341
Now, he mentioned supervisor reports, he mentioned conversations, he mentioned a few things, but none of that was given in evidence. None of that can be accurately relied upon as what occurred that day. We just simply don't know. All we know is that during sometime in that period some employees took annual leave because there was a wet weather event. Were they directed to leave? Did they take the option to leave? We don't know.
PN1342
So it's our submission that those spreadsheets and that evidence relied upon by Mr Mulligan can't be relied upon as any accurate evidence whatsoever about what the subsequent conduct of the parties was, because it is just statistical data. It could go to prove - and Mr Murdoch did make that concession that some of the data could go towards the applicant's contention, some of that data could go towards the union's contention. We say it doesn't go anywhere, but they have the onus of putting the evidence in front of yourself so that the Commission can be satisfied what the true intention of the parties was, and they have not done that.
PN1343
Also, Mr Mulligan's evidence contains a number of inconsistencies which we want to highlight. First of all, in his first statement in paragraph 71, he makes the statement that he was unaware of any dispute in relation to the wet weather clause whatsoever until the issue was raised with him via the dispute notification notice in November 2014.
PN1344
However, Mr Hardwick's evidence that he placed on showed that - so it's not only - and Mr Pierce's statement showed that that there was, at least from Mr Pierce's understanding, correspondence that was supposed to be sent to him in 2013. Further than that, there were conversations that he had when he raised that with Mr Pattel and Mr Horan, and in 2014 Mr Hardwick. Then all of a sudden in his reply statement Mr Mulligan can remember having conversations in relation to the employees' disputation notification - disputation about this is in 2014.
PN1345
So his story has changed from having no knowledge of it to, "Yes, I recall the conversation of that." Then under cross-examination his story changed again. When asked about the notification from Mr Wood, Mr Mulligan's statement was, "Well, I didn't receive that notification, but I do recall him having some issue with some supervisors at the time." So he was aware of some issue with Mr Wood at the time. He claimed that he didn't have the dispute notification and there's no evidence to suggest that it was sent to him, but he does claim some knowledge of it in 2013.
PN1346
Further than that, in 2014, 99 signatures disputing the company's interpretation of this clause was given to supervisors and the superintendent through Mr Horan. 99 signatures - that was nearly a third of the workforce - disagreed with their decision to send people home in January of 2014.
PN1347
THE DEPUTY PRESIDENT: It doesn't tell me those people were sent home, it just tells me they disputed the interpretation.
PN1348
MR NEWMAN: But they disputed what happened on the interpretation. The dispute was run through Mr Hardwick. Mr Hardwick was responsible for gaining those signatures. Mr Hardwick says that the specific dispute that he discussed with them was the issue of sending them home and Mr Hardwick says that that was on the basis - that was the reason that those employees signed those disputation notifications, was the decision to send them home that day and require them to take annual leave or leave without pay. That was - the discussions that he had with Mr Horan and Mr Pattel were those - was on that specific point.
PN1349
So whilst the dispute notification was more general in it, it can be reasonably inferred that that was what the employees were disputing, because that was what was raised and explored by Mr Hardwick who got those signatures and had those discussions with those employees. So we say that - and we urge the Commission to take some real consideration in relying on any evidence provided by Mr Mulligan. There are inconsistencies there. The evidence that he's - there's a lot of his personal view of the clause and the evidence that he provided does not support that personal view.
PN1350
So all you have here is the personal view of one person who has shown to have inconsistencies. We urge the Commission to refrain from relying on Mr Mulligan's evidence. So we return to the other witness who was Mr Pattel. Now, Mr Pattel gave evidence, first of all, he was not party to the negotiations, so he can give no direct knowledge of what the intent was of the agreement.
PN1351
His initial statement was just again expressing his view on how he believed the clause operated. He provided no attachments or supporting evidence, he just supplied his view of what he understood it to be, as well as supplying what he does when wet weather occurs. But in his reply statement he provides a number of - a large amount of evidence in detail in relation to the wet weather events that were indicated by Mr Hardwick from his diary notes.
PN1352
Now, those - that evidence consists of two things. One of them is the overall rainfall for the day and not the shift. Again, those issues aren't really in contention; there was obviously rain periods during those days and that's not in issue and the second is there were - I don't know if I'm paraphrasing here but I used the term "raw basic DC data", because I believe that the further data that was used in Mr Mulligan's statement was taken from the raw data and then manipulated in a certain way by the HR graduate, so that was my understanding of Mr Mulligan's evidence, that the data - the OCDC sheets that were provided by Mr Pattel were the raw data and his evidence was that those - that data indicated what occurred during that shift.
PN1353
Now, the key point with Mr Pattel's evidence was that he believed what happened during those shifts if employees went home or employees stayed at work was that they were directed to do so by the supervisor and in his statement in paragraph 5(a)(1) he makes that evidence, and then he relies upon it for nearly further notation afterwards, that he relied on a conversation that he had with his superintendent and under cross-examination he said sometimes the superintendent wasn't there, it was just the supervisor. So he had a conversation with the supervisor. If he had a conversation with the superintendent, it was relaying conversation that that superintendent had with the supervisor about the reasons why those employees went home.
PN1354
Now, again that's just hearsay and should be treated with a great deal of concern, but also when you take into account the contrary view of what occurred on site on the ground level with Mr Hardwick and what his diary notes say, and I will take you to the three ones in particular in a second, you can see a completely different story emerging. So the first entry I want to take you to is the - and I've provided a separate copy of it but it's in Mr Hardwick's evidence at CM3, I believe. The first one is 15/07/2012 where this is a - - -
PN1355
THE DEPUTY PRESIDENT: Sorry, I just have to find it.
PN1356
MR NEWMAN: Yes, I understand. I handed up a separate one yesterday.
PN1357
THE DEPUTY PRESIDENT: Yes, 15/07/2012.
PN1358
MR NEWMAN: Now, this is - and Mr Hardwick's evidence on this was that it's the very rare occasion that he actually shows to leave and take annual leave for a shift, and he gives the reasons for it where he says that there was an offer for staff to go early and redeem annual leave. He wasn't feeling so go, so he went home, back to camp.
PN1359
THE DEPUTY PRESIDENT: Why would he redeem annual leave if he was sick?
PN1360
MR NEWMAN: He had the option to do so.
PN1361
THE DEPUTY PRESIDENT: Well, he probably would have had the option to say, "I'm sick, I want to go home," too, wouldn't he?
PN1362
MR NEWMAN: Well, I believe he gave some evidence that said he was actually considering that earlier in the shift.
PN1363
THE DEPUTY PRESIDENT: Well - - -
PN1364
MR NEWMAN: But regardless, and we'll bring in other disputations, but he had that option.
PN1365
THE DEPUTY PRESIDENT: Right.
PN1366
MR NEWMAN: He had that option, but the key point is that he had the option to leave and take annual leave or leave without pay. So what you have here is Mr Pattel saying, "On that shift, I had a conversation with the superintendent, who had a conversation with the supervisor who said that during this shift the supervisors directed the employees to leave." And then, compare that with Mr Hardwick writing his note saying there was an offer to leave and he accepted that offer, because he was not feeling well.
PN1367
The next entry that I want to take you to is the 24/01/2013.
PN1368
THE DEPUTY PRESIDENT: Yes.
PN1369
MR NEWMAN: Now, this was the day that we reasonably believed from the evidence was the first time that this occurred in terms of employees being directed to leave and certainly the evidence is that this is the first day that the employees objected to having to leave. Now, you can see from the notation here, and this was actually a direct conversation with Mr Pattel, so we don't have to worry about the hearsay going through, but there's a clear difference here between what happened in May of last year - sorry, in September of last year and what happened in January of this year. It's quite clear as day. These is now - what had happened when he went home, he said, "It was just bullshit." If there was direction to leave in September, you would expect something similar to be in the diary note, but it's not. It's, "An option to leave; went home because I was feeling sick."
PN1370
So these two dates in and of itself clearly highlight the difference in what was happening. Now, when this was put to Mr Pattel, his response was, "Oh well, it depends on what the supervisor said." Well, the supervisor is not giving evidence. Mr Pattel is giving evidence and Mr Pattel didn't know what was going on. He was relying on other people telling him.
PN1371
So we say that these two dates in particular and these diary entries clearly show a difference, and that difference was that there was a change in view by management about how this clause was going to be applied. One was they would give the option to the employees to leave and they could choose to take it or not, and then here we go on the 24th of the 1st, "It's just bullshit," and from that there's evidence - granted it's not strong evidence - of the commencement of disputation from employees and union representatives.
PN1372
Now, the final diary entry I want to take you to is 7/05/2015.
PN1373
THE DEPUTY PRESIDENT: Yes.
PN1374
MR NEWMAN: Now, here in this diary entry, Mr Hardwick has said there was an option to go back to camp halfway through and he chose to stay back. Now, my friend was critical of him on this one, but I don't understand why. The evidence that he gave he was fairly compelling, I thought. It was that, "There wasn't much on that day, so I decided to put the diary notes in."
PN1375
There's no evidence of any collusion, there's no evidence of this being falsified in any way shape or form. His evidence was, in relation to his diary, he would write in what was the concern of the day. That was his view at the time. I don't think that there should be anything negative taken from that. Instead, what I think should be taken from that is again here is an issue of the employees having an option.
PN1376
Now, Mr Hardwick gave evidence that 2013 incident seemed to be a one-off and that it all went back to going back to normal, and then it was at the start of 2014 that the company posed a hard line on how they were going to apply the wet weather clause. From January 2014 they were going to apply it in the matter that they now seek to have the matter varied. That manner is completely inconsistent with what he has got in his diary note here.
PN1377
So those three, and again I point to Mr Pattel's evidence when I put to him about that, "It depends on what the supervisor said." Well, we don't know what the supervisor said, because the supervisor wasn't called. We do have a diary note here and Mr Hardwick's very strong view that they were allowed and he had that option. Now, while I'm on the issue of the diary notes, I just want to touch on something that my learned friend said in relation to reading into these diary notes and make a response into that.
PN1378
My learned friend said that caution should be used when looking at these diary notes, because they don't state what was going on that day in terms of what other people were doing and whether or not they were being directed and that they don't say how many people left and who left. Well, that's true, but no - that should not be taken adversely against Mr Hardwick's evidence, because as Mr Hardwick quite correctly pointed out, this was his diary and, at the time that this was happening, he didn't think that there was any issue with the wet weather clause.
PN1379
He made the very strong point that he does recall other people staying or going in that shift - in some of the shifts when there was wet weather. He just didn't record it, because it wasn't of relevance to him at the time; him in particular. So I don't think that any adverse view should be taken on his evidence on this point, and especially when you look at it in the light of the evidence that was provided by Mr Mulligan and Mr Pattel, because on these days - if you have a look at the OCDC statistical data they provided, people went home.
PN1380
People did leave the site and people did claim annual leave. Do we know what the reason what that they left? No, we don't. They didn't provide that evidence. It's not up to us to provide that. We've got the evidence from Mr Hardwick who says what he saw and what his personal view was, but clearly people did leave. They've just supplied no evidence about what the reasons were that they left, other than their personal views of a manager who did not speak to these employees.
PN1381
So overall, what we say is in relation to the evidence that was presented, it leaves the Commission having absolutely no idea what the original framers of this document intended in 2009. Nobody knows what - you know, the applicant's view is that this intention was to have the employees go home. None of the evidence they presented supports that. There is nothing here in this evidence that supports such a conclusion. Given that, we say that they haven't made out their case to show that the variation that they are seeking will remedy what the friend was intended.
PN1382
The view of the union is that what has occurred is that this clause was operated the way that the recommendation shows and the way that Mr Hardwick gave his evidence, and that sometime early in 2013 - a one-off event - but more consistently from 2014, the applicant has change their version of what they view the clause to be, and applied it in a different manner.
PN1383
Given that, we say that you cannot say what the original framers were and that for that reason, we say that the Commission should not exercise their discretion to vary the agreement in the manner that the applicant is seeking and therefore the application should be dismissed.
PN1384
Finally, and we discussed this earlier in relation to the self-serving purposes, but just to really touch on it again, the union's position is that even if there is a discretion of variation - a mind of the Commission to vary in the manner that the applicant sees fit, that discretion should not be exercised. Our view is that the issues that are being discussed here are issues in relation to contravention. They shouldn't be remedied by a variation which extinguishes one party's legal rights. Rather, there is a more appropriate venue for these areas to be ventilated.
PN1385
Now, there have been issues of contravention then discussed. There is also further issues - I don't know, I don't wish to leave without conceding the point that Mr McCowan's letter did put the offer there for further exploration of arbitration. That is something that hasn't been explored by the parties, but there is potential for those parties to still explore.
PN1386
So those are additional issues and there are other areas where this issue can be resolved and our submission is that they're more appropriate than the vehicle that's currently before you which is an application for variation.
PN1387
THE DEPUTY PRESIDENT: Well, given that it's going to take me some time to consider the matters that the parties have raised and I intend to reserve my decision in relation to it and given that you've got to provide some more material arguably, Mr Newman, what might expedite discussions with the applicant in this matter is if you make some endeavour to quantify what Mr Hardwick and other members of the CFMEU on site are seeking by putting the matter into dispute, so they can give consideration to whether that would be a more effective way of resolving the matter, because at the moment they have - from the applicant's side, they have, "Well, for the next seven years or whatever we are at large" or seven years after the next contravention there are people at large to make whatever claims they might want to make about events from 2013, 2014, potentially from whenever the agreement was made.
PN1388
So if you'd at least endeavour to quantify what Mr Hardwick says his loss is on your case and what the other employees are actually saying, it might provide some basis at least for the parties to have some discussions about where it goes to, because one way or the other, you are going to have to do that. If you succeed with opposing this application that you want to take the matter further, you are going to have to do that.
PN1389
MR NEWMAN: I understand that, and given a reasonable amount of time, that would have been done. It's just as I submitted previously, the time wasn't there to quantify that claim and that claim was put on hold as a result of this application. But I understand the Commission's point and the union takes it on board and will give it some consideration.
PN1390
THE DEPUTY PRESIDENT: Thank you.
PN1391
MR NEWMAN: Thank you.
PN1392
THE DEPUTY PRESIDENT: Thanks. Mr Murdoch, do you have anything in reply?
PN1393
MR MURDOCH: Just some brief matters in reply. I am reluctant, but I have to take the Commission back to clause 34.1.
PN1394
THE DEPUTY PRESIDENT: Yes.
PN1395
MR MURDOCH: My friend, as I understood it, tried to suggest that there was some clarity in clause 34.1 by reading it to the effect that both the employee and Thiess has four options, and that those options are as set out in (a), (b), (c) and (d).
PN1396
The problem with that approach is that if one takes the approach that the employee and Thiess have four options, what happens - and I ask this rhetorically, it's not a question for the Commission, obviously, but I ask this rhetorically - what happens if Thiess exercises option (a) and the employee exercises option (b). Who has priority? So it's nowhere near as simple as my friend suggests. They have both got the potential to exercise an option and if they exercise options that don't coincide, who has priority?
PN1397
In respect of this 99 people that had been referred to, as the Commission pointed out to my friend, there is no evidence that those 99 people would have a claim as he suggests and that is made good by the fact that when one goes to paragraph 37 of Mr Hardwick's statement, where he introduces these 99 people, the only evidence that the Commission has in respect of these 99 people is what is set out in paragraph 37, which simply refers to getting some signatures from some people who wish to dispute something, and he went off and gathered them it seems.
PN1398
Then when one looks at what these people signed, it is not even clear as to what they are actually disputing. All these letters say, these form letters, is that there's a notification of a dispute in respect of the interpretation application of clause 31.1. Well, we know it's clause 34.1, but it's not even clear as to what these respected people's views were as to what the correct interpretation should be or now it might be applied, let alone how it might be applied to them. So the 99 people really are an irrelevancy for the purposes of the matter before the Commission.
PN1399
Now, the next matter I need to clear up is that my friend made the submission that the evidence that was put forward by my client was being relied upon to demonstrate what the mutual intention of the parties was back in 2009. I perhaps didn't make this point as clearly as I should have, but I thought in my submissions to make it very clear to the Commission that the point in putting the evidence forward was not to try and ex post facto develop what was the mutual intention of the parties. The evidence is being put forward to assist the Commission as to what has been going on on the ground since the agreement has been put in place in terms of what the Commission might make of that in respect of exercising its discretion.
PN1400
Insofar as the mutual intention of the parties, what I did submit in respect of mutual intention is that the Commission can, in an orthodox way, glean the mutual intention of the parties objectively by looking at the entirety of clause 34, including clause 34.1 and the, on my submission, different approach that seems to be taken in clause 34.2, 34.3 and 34.4. The Commission, of course, has the capacity to do that and I just note what was said in the Grocon case at - I believe it's at tab 14 in the bundle.
PN1401
In Grocon at paragraph 43 - I apologise if I took you to this earlier and I'm repeating myself, but just to clarify this point, paragraph 43 it is said:
PN1402
In determining the form of the variation to be made, I'm obliged to have regard to the mutual intention of the parties at the time the agreement made. In my view, the most reliable guide in determining that mutual intention is the language of the agreement itself.
PN1403
So the Commission can have regard, in respect of determining mutual intention of the parties, the language used in the agreement including the entirety of clause 34.
PN1404
THE DEPUTY PRESIDENT: Thanks.
PN1405
MR MURDOCH: Just excuse me a moment. I should say for the record that - and I'm sure my friend didn't mean it to be put in this way, but any suggestion that the data has been manipulated is rejected by my client.
PN1406
Just in respect of the directions going forward, there is been a couple of pieces of homework, if I can put it in that way, that the Commission has referred to for the parties.
PN1407
THE DEPUTY PRESIDENT: I just think, at least, there are two or three pieces of information that you could objectively look at, which would be the Act as it existed at the time or what it said about stands downs, the award that would have applied at the time and what it said, and any documents that the parties filed with the workplace authority when they filed the agreement, which we might be able to get. Nate will make inquiries. Sometimes we can find documents.
PN1408
MR NEWMAN: I can assure the Commission we don't have any - - -
PN1409
THE DEPUTY PRESIDENT: Yes, I wouldn't imagine you would, but you might want to say something about the award and the Act at the relevant time.
PN1410
MR MURDOCH: Could I suggest, and I'm not across how long it might take to retrieve the relevant documents from the workplace authority, but perhaps a convenient way to progress would be my client bears the onus if, within a set period of time, my client provides some short submissions and if within a set period of time a response, and within a set a period of time a reply from my client.
PN1411
THE DEPUTY PRESIDENT: Yes. Do you have a suggestion about the period of time?
PN1412
MR MURDOCH: Well, I will just check on that. Perhaps is my client has three weeks, then my friend can speak to how long he might need and then I'd be content to have two weeks after whenever he provides his response.
PN1413
MR NEWMAN: Three weeks should be fine, provided they are short.
PN1414
THE DEPUTY PRESIDENT: All right. I am not going to issue further directions, I think I will just wait to receive material and if I don't receive it I will assume whoever hasn't sent it doesn't have anything further they want to say.
PN1415
MR MURDOCH: As the Commission pleases.
PN1416
THE DEPUTY PRESIDENT: All right, thank you. On that basis, I will adjourn.
ADJOURNED INDEFINITELY [1.36 PM]
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