B2018/415, Transcript of Proceedings [2018] FWCTrans 210 (19 June 2018)

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PN1

THE DEPUTY PRESIDENT: Yes, good morning, Ms Kendall. You're appearing for the applicant?

PN2

MS KENDALL: Good morning, Deputy President. Yes, I am.

PN3

THE DEPUTY PRESIDENT: Yes and, Mr Howard, your client seeks permission to be represented by a lawyer?

PN4

MR HOWARD: Yes, that - - -

PN5

THE DEPUTY PRESIDENT: Your client seeks permission to be represented by a lawyer?

PN6

MR HOWARD: Yes, I understood that that permission was granted last Tuesday.

PN7

THE DEPUTY PRESIDENT: It may well have been.

PN8

MR HOWARD: But I do seek permission to appear.

PN9

THE DEPUTY PRESIDENT: If I've already granted permission, I apologise.

PN10

MR HOWARD: If the Commission pleases.

PN11

THE DEPUTY PRESIDENT: I won't withdraw it now, Mr Howard.

PN12

MR HOWARD: Thank you, your Honour.

PN13

THE DEPUTY PRESIDENT: Yes, all right. Yes, Ms Kendall?

PN14

MS KENDALL: Deputy President, just I don't propose to make any opening submissions. I think that the outline of submissions that was filed in this matter is sufficient.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MS KENDALL: However prior to the employer calling evidence I would like to hand up an amended draft order. You may already be aware of this as it was outlined in my friend's submissions, but this draft order - our initial draft order erroneously had the wrong employer's name in it and so I have now got a draft order for your consideration which amends question 7 to ensure that it no longer says "Note Printing Australia Limited" and it says "O&M Pty Ltd".

PN17

THE DEPUTY PRESIDENT: The agreement which your organisation seeks to make also erroneously has a different employer. Clause 1.1 paragraph A.

PN18

MS KENDALL: Of the draft order?

PN19

THE DEPUTY PRESIDENT: No.

PN20

MS KENDALL: No?

PN21

THE DEPUTY PRESIDENT: No, of the agreement that you seek.

PN22

MS KENDALL: Apologies, I wasn't aware of that however I'll ensure that we hand up an amended application or - - -

PN23

THE DEPUTY PRESIDENT: I'm assuming it was - it's not an unfamiliar looking agreement, Ms Kendall, so I'm assuming this is a pattern style agreement and whereas you replaced the employer's name in the title, you neglected to in paragraph A.

PN24

MS KENDALL: That is very much likely the case.

PN25

THE DEPUTY PRESIDENT: Yes, very well. Mr Howard, you have a copy of the amended draft order?

PN26

MR HOWARD: I do.

PN27

THE DEPUTY PRESIDENT: Yes. Thank you.

PN28

MR HOWARD: I don't oppose - - -

PN29

MS KENDALL: I think you gave it back to me.

PN30

MR HOWARD: I don't oppose the amended draft order. I will say that the ETU have made their position very clear midday yesterday that the application incorporates the pattern EA. I hear what your Honour says about the problem with clause 1.1. I don't want it to be later suggested that this application doesn't incorporate the pattern agreement. If my friend wants to re-amend the pattern agreement to read:

PN31

For the purposes of this hearing, clause 1.1A, O&M Pty Ltd (the employer)

PN32

We wouldn't oppose that course either.

PN33

THE DEPUTY PRESIDENT: Thank you.

PN34

Yes, Ms Kendall?

PN35

MS KENDALL: Deputy President, it was our intention, it was at least how I foresaw the proceedings that the employer would call their witnesses first in this matter, and I don't propose to make any opening submissions.

PN36

THE DEPUTY PRESIDENT: Mr Howard, are you content with - - -

PN37

MR HOWARD: The union has the burden of proving that the application has been made and the union has the burden of proving that they genuinely tried to reach agreement. So in light of the burden, Mr Mooney should get in the witness box first and then the ETU should close their case.

PN38

THE DEPUTY PRESIDENT: Yes, I don't propose to require the employer to lead its evidence first so, Ms Kendall, call - is Mr Mooney required for cross‑examination, Mr Howard?

PN39

MR HOWARD: Yes, he is.

PN40

THE DEPUTY PRESIDENT: Yes, all right.

PN41

MS KENDALL: In that case we call our first witness, Mr Peter Mooney.

PN42

THE DEPUTY PRESIDENT: Yes.

PN43

THE ASSOCIATE: Please state your full name and address?

PN44

MR P MOONEY: Peter Douglas Mooney (address supplied).

<PETER DOUGLAS MOONEY, AFFIRMED [10.09 AM]

EXAMINATION-IN-CHIEF BY MS KENDALL [10.09 AM]

PN45

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Mooney, take a seat. Ms Kendall?

PN46

MS KENDALL: Mr Mooney, do you have your statement in front of you there?‑‑‑Yes, I do.

PN47

Is that the statement that you prepared for these proceedings?‑‑‑Yes, it is.

PN48

It is? And just have a flick through it. Can you just confirm to the Commission that that is in fact a copy of the statement that you have filed in this matter?‑‑‑Yes, it is.

PN49

Thank you, Mr Mooney. I'd like to ask you a few more questions, but I'll take this moment to tender that statement, the statement of Mr Mooney dated 4 June.

PN50

THE DEPUTY PRESIDENT: Any objection, Mr Howard?

PN51

MS KENDALL: And also, Deputy President, sorry I was remiss, I didn't see that the witnesses for the employer were still in the Commission. Could we please have an order that the witnesses clear the room?

PN52

THE DEPUTY PRESIDENT: Any objection, Mr Howard?

PN53

MR HOWARD: Save for Mr Bone for instructions, of course.

PN54

MS KENDALL: We push for an order that Mr Bone is out of the court room. In the event that the employer needs to take some instructions he can seek a break or seek to lead further evidence from Mr Bone when he gives evidence after Mr Whitlow - sorry, after Mr Mooney.

*** PETER DOUGLAS MOONEY XN MS KENDALL

PN55

THE DEPUTY PRESIDENT: The applicant - sorry, the respondent is a legal fiction. That is, it's a corporation that can only act through its officers. I'm assuming Mr Bone is a director of the respondent? Yes, I think it's appropriate that he can stay to give instructions.

PN56

Mr Bradford, would you mind leaving the court room? Yes, you. No one wants you here, Mr Bradford, so I'll let you know when we're ready. Thank you.

MR BRADFORD ORDERED OUT OF COURT ROOM [10.12 AM]

PN57

THE DEPUTY PRESIDENT: All right, any objection to the tender of the statement of Mr Mooney, Mr Howard?

PN58

MR HOWARD: No, your Honour. We're content for you to take into account the various opinions expressed as a matter of weight.

PN59

THE DEPUTY PRESIDENT: Yes, all right. Thank you. I'll mark the witness statement of Peter Mooney dated 4 June 2018 comprising 31 paragraphs together with the annexures marked PM1 through PM6 respectively as exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF PETER MOONEY DATED 04/06/2018 COMPRISING 31 PARAGRAPHS AND ANNEXURES PM1 THROUGH PM6

PN60

THE DEPUTY PRESIDENT: Yes?

PN61

MS KENDALL: Thank you.

PN62

Mr Mooney, I'd like to start by just taking you to paragraph 7 of your statement. In that paragraph you talk about your meeting with Mr Bone on 14 December 2017?‑‑‑That's correct.

PN63

Was that your first meeting with Mr Bone?‑‑‑Yes, it was.

PN64

And what had you provided Mr Bone prior to that meeting?‑‑‑I had supplied him with a copy of the new draft agreement and I also had supplied him with copies of the ABCC advice that the agreement was - now met the conditions of being code‑compliant.

*** PETER DOUGLAS MOONEY XN MS KENDALL

PN65

Yes, and when you provided him with that agreement what was your intention then?‑‑‑My intention was to meet with Mr Bone, go through the agreement and find out if we had any issues between us and if we could work through those issues and see if we could get to a point where we have an agreement that we could take to our members to be voted on and accepted.

PN66

Thank you, and in your statement in that meeting on 14 December 2017 you talk about some of the things that Mr Bone raised with you, some of his claims. Can you please tell the Commission what you did with Mr Bone's - after understanding Mr Bone's claims?‑‑‑Well, Mr Bone actually had a spreadsheet with a number of items. It was an A3 that he had Mr Seymour - what I understood was Mr Seymour had gone through. They compared his old agreement, the O&M Greenfields Agreement 2010 - 2014 against the draft that I had supplied, and had gone through a number of those areas where there may have been a change or an impact on the business through that. And then we had some general conversation about a number of those things that had been picked up through that spreadsheet and then we had some conversations about certain things that O&M would like to see if we could discuss.

PN67

In particular I remember talking about tools, in particular, about why couldn't guys maybe supply their own tools and their own stuff. We talked about a petrol card and we talked - then we talked about certain issues where there was a cost impact. I do remember superannuation was one that there was a big jump from the previous agreement to the new agreement that we were proposing and I remember, following that meeting, I had a conversation with Luke Hawkey who's our delegate and then from there about what had been discussed in broad and general terms. And then because it was so close to Christmas I had time off into January and then we had a mass meeting with our membership at O&M in early March where we discussed what had been discussed at that meeting and what - - -

PN68

MS KENDALL: And sorry, Mr Mooney, could you just - so to be absolutely clear, could you just tell the Commission what you mean by "that meeting"?‑‑‑We got all our members in. There was about - I can't remember, about 30 plus guys came in after work out of hours and I ran through the meeting we had on the 14th and we discussed a number of those items that we had spoken about where - but we also spoke about the agreement. We went through them. I asked the guys were they interested in looking at a petrol card. Were they interested at looking at a - buying their own tools and it was quite clear from the comments that I got back from the guys at the time that they weren't prepared to go down where they had to supply their own drills or their own electrical equipment or they didn't want a petrol card, for example. For example.

*** PETER DOUGLAS MOONEY XN MS KENDALL

PN69

Thank you, and after your mass meeting with the members what was your next step in the bargaining negotiation?‑‑‑I - if I remember rightly I may have rang Graham - Mr Bone, or I may have emailed him at the time to try and set up another meeting, also to try and continue on with our bargaining. I probably sent maybe another lot of emails or something like that. I also remember I might have had a phone conversation with him about Aaron Harris was coming d own, who was our assistant secretary, was coming down. Graham indicated he'd like to have a chat to him when he comes down, and that's how it sort of went.

PN70

And in your statement you then say that after your - and that's quite a bit of correspondence between you and Mr Bone between that meeting on 14 December through to March 2018. In your statement you said that your next meeting with Mr Bradford was on - sorry, not Mr Bradford, my mistake, with Mr Bone was on 26 March 2018?‑‑‑Yes.

PN71

How long did this meeting go for?‑‑‑Probably over an hour. Yes.

PN72

Okay, and can you give the Commission an overview of - sorry, I withdraw that. Can I - - -

PN73

MR HOWARD: Deputy President, I'm not sure why we're doing this. This is all in the statement. I don't know why we're traversing this again. For example "The meeting went for an hour" at paragraph 18. It has already been said. The purpose of you programming statements is to save the Commission time with these type of matter - with this type of evidence‑in‑chief. If there's anything that's not in his statement then I'd like to hear about that otherwise I'd like to cross‑examine Mr Mooney.

PN74

MS KENDALL: Deputy President, that question was a lead in to my next question which will I imagine produce evidentiary material which is not in the statement. Mr Mooney is providing evidence to the Commission. This is not - the matter has been set aside for a couple of hours. I don't intend on going through every paragraph of the statement however in the course of Mr Mooney's evidence, I submit that he has provided some evidence that is already in his statement but also some evidence that's not.

PN75

THE DEPUTY PRESIDENT: Why don't we focus on the evidence that's not?

PN76

MS KENDALL: Yes, of course.

PN77

THE DEPUTY PRESIDENT: And Ms Kendall, you'll need to explain to me why the evidence that's not in his statement isn't in his statement. I mean the purpose of the provision of a statement is to put the respondent on notice about the case that you intend to lead.

*** PETER DOUGLAS MOONEY XN MS KENDALL

PN78

MS KENDALL: Yes, Deputy President, and we have done that. The only further evidence that we are leading is about Mr Mooney reporting back to the membership about the claims that Mr Bone has put forward.

PN79

THE DEPUTY PRESIDENT: Yes, all right.

PN80

MS KENDALL: So Mr Mooney, at this meeting of 26 March 2018 did you report back to Mr Bone about what your membership's position was?‑‑‑Yes.

PN81

And how did you do that?‑‑‑By phone I think or at our next meeting.

PN82

Yes, and can you just explain to the Commission what you said to Mr Bone about the membership's position?

PN83

THE DEPUTY PRESIDENT: In your statement, Mr Mooney, you say that you met with him at their office?‑‑‑That's either - it's either that or by phone. It's one or the other but I think it was meet - we met, the next time we met I would've responded back to him what the position was.

PN84

MS KENDALL: Of the membership?‑‑‑Of the membership.

PN85

Thank you. Mr Mooney, at the time of filing your statement you say that there wasn't another meeting set up between you and Mr Bradford as the bargaining representative and Mr Bone?‑‑‑That's correct.

PN86

Is there now a meeting set up between the two of you?‑‑‑There is. There's a meeting scheduled for Thursday at 1 o'clock at our Melbourne office.

PN87

Thank you. Thank you, Deputy President.

PN88

THE DEPUTY PRESIDENT: Mr Mooney, you indicate at paragraph 5 that you, i.e. the ETU or the CEPU initiated the bargaining or sought to initiate bargaining on 5 October 2017?‑‑‑That's correct.

PN89

You say in paragraph 5, and then later you say that - I'll just find it. Yes, it's actually in the statutory declaration, which I'll come back to, that on 1 March 2018 you emailed the employer asking them to issue a notice of employee representational rights?‑‑‑That's correct.

*** PETER DOUGLAS MOONEY XN MS KENDALL

PN90

Yes, okay?‑‑‑That's correct. At the meeting on the 1st of March when Mr Harris was at that meeting and Nathan Scott, Mr Harris asked Mr Bone a number of times if he could issue the notice of representative rights so that we could move forward.

PN91

And when do you say the employer agreed to bargain?‑‑‑Probably back on the 14th of December when we had our initial meeting, when he turned - when Mr Bone turned up with his list of issues that he had with the agreement that had been sent to him.

PN92

All right, so on that day, 14 March, that would be the - - -?‑‑‑The 14th of December.

PN93

Of December?‑‑‑December, yes.

PN94

That would be the notification time. All right.

PN95

Ms Kendall, do you rely on the statutory declaration that accompanied the application?

PN96

MS KENDALL: Yes, we do.

PN97

THE DEPUTY PRESIDENT: Right, any objection to me marking that as an exhibit?

PN98

MR HOWARD: No, your Honour.

PN99

THE DEPUTY PRESIDENT: Yes. Thank you. I'll mark the statutory declaration - Mr Mooney, do you have a copy of the statutory declaration?

PN100

MR HOWARD: No, I don't.

PN101

THE DEPUTY PRESIDENT: All right, I'll get you a copy. Ms Kendall, do you have a copy?

PN102

MS KENDALL: Apologies, Deputy President, I don't think I have a clean copy of that.

*** PETER DOUGLAS MOONEY XN MS KENDALL

PN103

THE DEPUTY PRESIDENT: That's all right. I'll show you my copy and then I'll ask you to give it back to me.

PN104

Mr Mooney, is that a declaration made by you?‑‑‑Yes, it is.

PN105

And are the contents of that declaration true and correct?‑‑‑Yes, it is.

PN106

You adopt that what you've said in the statutory declaration as part of your evidence in this matter?‑‑‑Yes, I do.

PN107

Yes. Thank you.

PN108

I'll have that back. I'll mark the statutory declaration of Peter Mooney declared at Morwell on 25 May 2018 as exhibit 2.

EXHIBIT #2 STATUTORY DECLARATION OF PETER MOONEY DECLARED AT MORWELL ON 25/05/2018

PN109

THE DEPUTY PRESIDENT: Mr Howard, cross‑examination?

CROSS-EXAMINATION BY MR HOWARD [10.26 AM]

PN110

MR HOWARD: Thank you, Deputy President.

PN111

Mr Mooney, did you draft your statement?‑‑‑I prepared it with our - with Ms Kendall.

PN112

I see. Now you said you have members employed by O&M?‑‑‑That's correct.

PN113

And they perform electrical work?‑‑‑That's correct.

PN114

Some of them are employed at the Yallourn Power Station?‑‑‑Yes, about nine or 10.

PN115

Yes?‑‑‑Are employed there.

*** PETER DOUGLAS MOONEY XXN MR HOWARD

PN116

And some are employed at other sites?‑‑‑Some are employed at Loy Yang A Station or AGL site. Some are employed in the workshop and some are employed at the old Hazelwood site, and some have been employed at the Energy Brick site recently as well.

PN117

And they are engaged in maintenance work?‑‑‑They're employed - they do maintenance, they do electrical work, they do all aspects of electrical work.

PN118

The evidence of Mr Bone is that they are an electrical maintenance contractor. Do you agree with that?‑‑‑I would say they're more than electrical maintenance contractor. They actually do more work than that. They just installed some generators for Aggreko which consisted of construction of new cabling, all those type of things that were associated with that work. They're currently engaged at Loy Yang to possibly do some work that is construction type work, which is a new pumping system that's going to be put in place.

PN119

Have they got that work?‑‑‑I'm not a hundred per cent sure. I can't guarantee that. I believe so.

PN120

But you agree with me they're electricians doing electrical work?‑‑‑Electrical work.

PN121

Yes, all right. They're not engaged in the cottage industry, are they?‑‑‑No, they're not.

PN122

No?‑‑‑Well, they could be. You never know. Could be. You never know.

PN123

You don't know?‑‑‑No, they could be.

PN124

Have you bothered to ask?‑‑‑I - we haven't had that conversation.

PN125

Yes, I thought so?‑‑‑Yes. It doesn't exclude it.

PN126

I agree with that, but you haven't asked?‑‑‑No, we haven't had that conversation.

PN127

No. Now at paragraph 5 of your statement you speak of a draft proposed agreement?‑‑‑That's correct.

*** PETER DOUGLAS MOONEY XXN MR HOWARD

PN128

This is the agreement that you pre-negotiated to apply to electrical contractors?‑‑‑It's a copy of that agreement that has been done for our industry, yes.

PN129

Yes, negotiated with NECA?‑‑‑NECA and a number of other electrical contractors.

PN130

All right, and this is the agreement that you seek contractor employees to sign?‑‑‑It's the starting point for us that we used to negotiate with employers that work in the electrical industry.

PN131

The starting point?‑‑‑It's a starting point.

PN132

Thank you?‑‑‑Not all - not - some agreements are identical and some agreements we cater for employers to meet their needs.

PN133

I see?‑‑‑I can give an examples of those if you want.

PN134

No, I don't need your examples?‑‑‑Yes, I can.

PN135

At paragraph 7 you've given evidence about a meeting at Morwell, at the ETU offices in Morwell?‑‑‑Correct.

PN136

Now you say that meeting went for 2.5 hours?‑‑‑Yes.

PN137

Is that true?‑‑‑Yes, it is.

PN138

Are you sure about that?‑‑‑Yes, I am.

PN139

Can you turn to page 7 or page 6 of PM1, that's the first exhibit?‑‑‑Yes.

PN140

You see "See you at 3.30 today"?‑‑‑Yes.

PN141

If you just go back to the page, that's sent on 14 December. So do you see that?‑‑‑Yes. Yes, yes.

*** PETER DOUGLAS MOONEY XXN MR HOWARD

PN142

Yes, so that meeting commenced at 3.30 that day?‑‑‑Yes.

PN143

And it's your evidence, is it, that it went till 6 o'clock?‑‑‑Correct.

PN144

So you were doing overtime were you?‑‑‑I get paid a salary. It doesn't matter what I get paid. I'm available when I'm available.

PN145

So your evidence is that this went till 6 o'clock?‑‑‑Yes. It went for ages. There was a fair bit to discuss.

PN146

Ages?‑‑‑There was a fair bit in the documentation that Mr Bone brought with him.

PN147

And when you say it went for ages and you talked about things, it's the case that you've outlined that at paragraphs 8, 9 and 10?‑‑‑Yes, correct.

PN148

It went till 6 o'clock?‑‑‑Yes.

PN149

Can the witness be shown a couple of emails. Yes, have you got those emails, Mr Mooney?‑‑‑Yes.

PN150

Have you got these emails?‑‑‑Yes.

PN151

So one of them is sent on 14 December at 3.17 from Mr Bone?‑‑‑Yes.

PN152

One of them is sent Thursday 14 December at 4.37 pm?‑‑‑Yes.

PN153

From Mr Bone. Now he sent these, and the evidence will be that he sent these from his office?‑‑‑Yes, well - - -

PN154

How can he be negotiating with you till 6 o'clock?‑‑‑That's my recollection.

PN155

The truth is, Mr Mooney, that this meeting went for 15 minutes?‑‑‑Well, I was going to point out to you that I actually reckon he could have sent those emails while he was sitting in my meeting. You could come up with any idea. It could have been his own secretary could have forwarded them on. Who - you don't know, right?

*** PETER DOUGLAS MOONEY XXN MR HOWARD

PN156

Okay, well that's fine. All I need to say to you is that the evidence will be that he sent them from his computer. Do you agree with that evidence?‑‑‑I don't know. I don't know.

PN157

The evidence will be that this meeting went for 15 minutes, that you said "Sign the pattern enterprise agreement", that Mr Bone tried to show you the spreadsheet with the maths and he said "This is, you know, no good. I can't afford it" and you said "I don't care". Do you disagree with that evidence?‑‑‑Yes, I do disagree with that evidence.

PN158

THE DEPUTY PRESIDENT: Mr Howard, do you want these emails tendered?

PN159

MR HOWARD: Yes, I'd like to tender those emails.

PN160

THE DEPUTY PRESIDENT: Any objection?

PN161

MS KENDALL: No.

PN162

THE DEPUTY PRESIDENT: Thank you. I'll mark them as a bundle. A copy of email correspondence sent by Mr Graham Bone on 14 December 2017, the first of which appears to have been sent at 3.17 pm, as exhibit 3.

EXHIBIT #3 COPY EMAIL CORRESPONDENCE FROM MR GRAHAM BONE DATED 14/12/2017

PN163

MR HOWARD: Just a couple of other issues with your statement, Mr Mooney. At paragraph 20 you give evidence that Ms Mancini sent the notice of representational rights two weeks later after the conciliation. That's not true, is it?‑‑‑I can't remember the date that it was issued by - - -

PN164

Okay, well - - -?‑‑‑Yes.

PN165

It was sent on the 12th?‑‑‑So a couple of days after the hearing.

PN166

Yes, do you remember now?‑‑‑On the 9th.

PN167

Are you happy to agree with that?‑‑‑I'm happy to agree with that.

*** PETER DOUGLAS MOONEY XXN MR HOWARD

PN168

Thank you. At paragraph 30 you say you've never proposed a claim in relation to scope. That's not true is it?‑‑‑I don't know what you mean by that.

PN169

Have you proposed a claim for scope or not?‑‑‑No, I haven't.

PN170

Okay, well can you - just one second, Mr Mooney, I'll get the right letter?‑‑‑The only thing that - in relation to the scope is that our members are currently LSA People Pty Ltd employees.

PN171

Why are you bargaining with O&M then?‑‑‑Because O&M is a - well, is part of the LSA People. They represent them.

PN172

Do you even know who you're bargaining with, Mr Mooney?‑‑‑Yes, LSA and O&M at the same time.

PN173

So if this order is issued today your evidence is that the employees are employed by LSA, the Australian Electoral Commission will ballot no one?‑‑‑Well, at the moment they're LSA employees. At the moment they're moving back to O&M.

PN174

The truth is you don't know who your members are employed by, is that right?‑‑‑At the time of this application they were LSA.

PN175

What are they now?‑‑‑I believe they're still LSA.

PN176

So what's the point of balloting O&M employees?

PN177

MS KENDALL: Deputy President, I object. Mr Mooney can't give evidence about - the best evidence about which entity employs the relevant members should come from the employer. It's clear from Mr Mooney's evidence that he has been trying to seek clarification about who the employer is. The question is unreasonable.

PN178

THE DEPUTY PRESIDENT: Except that presumably Mr Howard is going to adduce that evidence from Mr Bone and he's discharging his obligation to put his instructions to Mr Mooney, so I'll allow it.

*** PETER DOUGLAS MOONEY XXN MR HOWARD

PN179

MR HOWARD: So the members are employed by LSA People, is that right?‑‑‑That's what their pay slips have on there and that's what their - that's the company that's on their pay slips.

PN180

So the answer is yes?‑‑‑Yes.

PN181

Okay, thank you. Could you turn to PM3 which is the third exhibit of your statement. Can you read paragraph 1?‑‑‑Yes, the Yallourn site agreement claim.

PN182

Now that's a scope isn't it?‑‑‑That was a claim by O&M to me at the meeting through Mr Bradford who said that they wanted to carve out the Yallourn agreement from having coverage to this agreement.

PN183

So you maintain in paragraph 30 that at no point you've raised a claim in relation to scope?‑‑‑No, no, I have not raised any claim in relation to scope.

PN184

All right?‑‑‑I proposed a (indistinct) as a way of accommodating the claim that had been put to me by O&M through Mr Bradford, and that was to accommodate that claim.

PN185

So paragraph 30 you maintain?‑‑‑Yes.

PN186

No further questions.

PN187

THE DEPUTY PRESIDENT: Any re‑examination, Ms Kendall?

RE-EXAMINATION BY MS KENDALL [10.38 AM]

PN188

MS KENDALL: Yes.

PN189

Mr Mooney, a moment ago you were just asked some questions about scope and who the proper employer of your members are - is, sorry. Isn't it the case that you were in fact trying to clarify who the employer was for your relevant members - - -

PN190

THE DEPUTY PRESIDENT: Are you leading, Ms Kendall?

PN191

MS KENDALL: Pardon?

*** PETER DOUGLAS MOONEY RXN MS KENDALL

PN192

THE DEPUTY PRESIDENT: Are you leading?

PN193

MS KENDALL: Apologies.

PN194

Mr Mooney, can you please explain to the Commission whether - sorry, what clarification you were trying to seek from the employer regarding the proper entity?‑‑‑We were trying to make sure we had the right people or company who we were representing our members with to ensure that when we did the MSD process that we had the right employer for that process and also to make sure we had the right employer when it come to bargaining.

PN195

And when it comes to LSA People who do you know - sorry, who are the representatives of LSA People?‑‑‑Well, my understanding is Mr Bone and Mr Dixon.

PN196

Thank you.

PN197

THE DEPUTY PRESIDENT: Yes, Mr Mooney, thank you for your evidence. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.40 AM]

PN198

THE DEPUTY PRESIDENT: Ms Kendall, is that the union's evidentiary case?

PN199

MS KENDALL: Yes, that is. Thank you.

PN200

THE DEPUTY PRESIDENT: Yes. Thank you. Mr Howard?

PN201

MR HOWARD: Thank you, Deputy President. I call Mr Bone.

PN202

THE ASSOCIATE: Please state your full name and address.

PN203

MR G BONE: Graham Andrew Bone, 2B Swan Road, Morwell.

<GRAHAM ANDREW BONE, SWORN [10.40 AM]

EXAMINATION-IN-CHIEF BY MR HOWARD [10.40 AM]

*** GRAHAM ANDREW BONE XN MR HOWARD

PN204

THE DEPUTY PRESIDENT: Yes, thank you, Mr Bone. Take a seat. Mr Howard?

PN205

MR HOWARD: Mr Bone, can you please state your business address to the Commission?‑‑‑It's 2B Swan Road in Morwell.

PN206

Have you made a statement in this matter?‑‑‑Yes, I have.

PN207

Is it 16 paragraphs long?‑‑‑Yes, it is.

PN208

Is there any changes you need to make to that?‑‑‑No.

PN209

I tender the statement.

PN210

THE DEPUTY PRESIDENT: Any objection, Ms Kendall?

PN211

MS KENDALL: No.

PN212

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Graham Bone dated 30 May 2018 comprising 16 paragraphs together with the two annexures marked GB1 and GB2 as exhibit 4.

EXHIBIT #4 WITNESS STATEMENT OF GRAHAM BONE DATED 30/05/2018 WITH ANNEXURES GB1 AND GB2

PN213

MR HOWARD: Thank you, your Honour. Now it's necessary to ask Mr Bone a couple of questions in light of the evidence filed yesterday.

PN214

THE DEPUTY PRESIDENT: Yes.

PN215

MR HOWARD: Mr Bone, how many of your staff work at Yallourn?‑‑‑About a dozen, 10 to 12 generally.

PN216

How many are there today?‑‑‑I think there's about 10 there today. 10.

PN217

Yes, they're all performing work there today?‑‑‑Yes, they are.

*** GRAHAM ANDREW BONE XN MR HOWARD

PN218

Do these people, these 10 to 12, work at other places?‑‑‑Yes, they do.

PN219

How often do they move around?‑‑‑Probably once a month. Not all of them but, just, yes.

PN220

And why do they move around?‑‑‑Just with the work, depending on the workload. If it's a bit quiet at Yallourn we move them to other sites.

PN221

Once a month or so?‑‑‑Yes.

PN222

Can the witness be shown Mr Mooney's statement?

PN223

THE DEPUTY PRESIDENT: Do you have a spare copy?

PN224

MR HOWARD: I have a spare copy. One moment, your Honour. I apologise, I've scribbled all over mine.

PN225

THE DEPUTY PRESIDENT: That's all right. I - - -

PN226

MR HOWARD: Thank you. My friend has provided me with a spare.

PN227

THE DEPUTY PRESIDENT: Yes, all right. Thank you.

PN228

MR HOWARD: Could you read paragraph 7 for me?‑‑‑Yes, I've read it. Yes.

PN229

Is that correct?‑‑‑No.

PN230

Can you explain to the Commission what occurred?‑‑‑We - I went over there to have a meeting with Peter in relation to a payroll issue or a matter that we - another matter on public holidays and so forth. At that particular meeting, yes, I tried - I did have the A3 sheet, tried to discuss it. Peter wasn't interested at all and the meeting - - -

PN231

What did he say?‑‑‑He said "I'm not interested in your claims". Basically said that "The EBA's" or "The agreement's the agreement and it's not going to change".

*** GRAHAM ANDREW BONE XN MR HOWARD

PN232

How long did the meeting go for?‑‑‑It was about 15 to 20 minutes at maximum.

PN233

Now there is evidence in the proceeding of you sending emails at 3.17 and 4.17. Are you aware of those emails?‑‑‑Yes, I am.

PN234

Where did you send those emails from?‑‑‑From Hazelwood.

PN235

And how long does it take to get from Hazelwood to the ETU's office?‑‑‑It's 15 to 20 minutes depending on where you are in the mine. So, yes.

PN236

Is it possible that someone else sent them?‑‑‑No, it's only my computer and it's at Hazelwood. It's - they're fairly strict on the security and so forth and yes, nobody else can get into your computer.

PN237

I see. Could you read paragraphs 8, 9 and 10?‑‑‑Yes.

PN238

Were any of those things discussed on the 14th for 15 minutes?‑‑‑The - on number 8 there.

PN239

Yes?‑‑‑The A3 spreadsheet is correct. Tried to talk about those but was shot down very quickly. But all the other stuff was related to our other meeting on the 1st.

PN240

Of March?‑‑‑Of March, correct.

PN241

No further questions.

PN242

THE DEPUTY PRESIDENT: Mr Bone, you say in your statement you received a letter from Mr Mooney on 5 October and it had particular content and then you responded by asking for a Word version of the agreement and then you had a meeting with him on 14 October to discuss you say a penalty rates issue, but you also sought to discuss an A3 spreadsheet that you had prepared?‑‑‑That's correct.

PN243

And that was a comparison between the claim and the agreement that Mr Mooney gave you on the 15th of - on 5 October and your current terms and conditions?‑‑‑True, yes it was a comparison between the two.

*** GRAHAM ANDREW BONE XN MR HOWARD

PN244

Are you able to tell me when you believe you agreed to start bargaining for an agreement?‑‑‑I believe we started bargaining on the 1st of March, was really the first time that we sat down and - - -

PN245

That's when you started bargaining?‑‑‑Yes.

PN246

Yes, 1 March this year?‑‑‑Yes.

PN247

And when you - well, did you agree to bargain at an earlier stage?‑‑‑There was correspondence relating to that I was happy to bargain, yes.

PN248

All right. Thank you. Cross‑examination, Ms Kendall?

CROSS-EXAMINATION BY MS KENDALL [10.47 AM]

PN249

MS KENDALL: Mr Bone, if it's the case that you only started bargaining from 1 March why did you prepare an A3 spreadsheet with your claims?‑‑‑To get an understanding of the differences between the EBAs.

PN250

And wouldn't you say that is a feature of bargaining?‑‑‑No, I don't.

PN251

Why do you say that?‑‑‑I just need - will need to see what the comparisons are.

PN252

And wouldn't you agree that bargaining, what actually happens in bargaining is that one party puts their position forward then the other party responds to that position, and either there's agreement or not. Isn't that right?‑‑‑I guess so.

PN253

And didn't that happen from 14 December?‑‑‑No.

PN254

Weren't you provided with a log of claims from the ETU on 5 October 2017?‑‑‑We received a pattern agreement that the ETU were - - -

PN255

That's right, and then you requested that in a Word version?‑‑‑Correct.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN256

Isn't it the case that you requested that in a Word version because you wanted to go through it in some detail to be able to respond to the ETU's claims?‑‑‑No, I was - I wanted the Word version to understand where we - where the agreements were and I guess the - at that stage that there - the letter that Peter sent in relation to that agreement was fairly - I took it as a threat saying that we had three days to respond or "We'll be taking you to Fair Work". So.

PN257

Okay, and can you please explain to the Commission what getting a Word version of a document you already have does to further explain the ETU's position?‑‑‑I guess we just wanted to get an understanding of what it actually meant.

PN258

Isn't it more the case that you wanted a Word version so that you could then dissect that on a computer and consider it and then provide a response to the ETU?‑‑‑Not necessarily.

PN259

No. Mr Bone, do you own a laptop?‑‑‑I do.

PN260

Yes, and do you own an iPad?‑‑‑I do.

PN261

Do you own an iPhone or a Smartphone?‑‑‑I do.

PN262

Do you have email access from all three of those devices?‑‑‑No, I don't.

PN263

You don't. Which devices do you have email access from?‑‑‑From my computer and iPad.

PN264

And your iPad, okay?‑‑‑Yes.

PN265

And is it possible that in fact the emails that you have sent to Renata on 14 December 2017 were in fact sent from your email - sorry, sent from your laptop?‑‑‑No, they can't be. It's a Hazelwood computer. The laptop is an O&M computer. I work for Hazelwood. I'm a contractor to Hazelwood and it's a Hazelwood computer. It's a desktop that sits at their premises.

PN266

And so do you recall being at that desktop sending that?‑‑‑Yes.

PN267

And you haven't sent that from - you can't access your Hazelwood emails from your laptop?‑‑‑Cannot.

PN268

No, okay?‑‑‑I have to be onsite.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN269

You have to be onsite, okay, and how do we know from this email that that's from the Hazelwood desktop?‑‑‑Because it says.

PN270

It says?‑‑‑It gives you the email address that it's from.

PN271

I don't think that - the email address at least on the copy that I have it's not clear it says your name Graham Bone on the first page. Actually could the witness just be shown that exhibit? I believe it's exhibit 3. Have you got that in front of you, Mr Bone?‑‑‑Yes, I do.

PN272

And on the second page of that - - -?‑‑‑I've only got one page, sorry. I don't have any - - -

PN273

There should - I've got at least two pages of that exhibit.

PN274

Deputy President, could I just check that the exhibit of the emails dated 14 December 2017, that the exhibit consists of two pages?

PN275

THE DEPUTY PRESIDENT: Technically it consists of three pages because on my copy the footer of the email sent at 3.17 goes over the page, but it consists of two emails. The first was sent at 3.17, the second sent at 4.37.

PN276

MS KENDALL: Yes, okay, thank you.

PN277

And do you have the email that's sent at 3.17 before you, Mr Bone?‑‑‑I do.

PN278

Yes, okay, and in that email you can see you've been cc'd gbone@oamaustralia.com.au?‑‑‑Yes. Yes.

PN279

So you've copied in yourself?‑‑‑Correct.

PN280

Yes, and then you've sent it from g.bone@au.ng.com?‑‑‑Correct.

PN281

Yes, and you don't have any mobile access to that email address?‑‑‑No, I don't.

PN282

Mr Bone, did you take any notes from 14 December 2017?‑‑‑Yes.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN283

You did, and where are those notes?‑‑‑In my diary.

PN284

Okay, and why haven't you provided those to the Commission?‑‑‑Because there was - there wasn't much in there to say.

PN285

Could you please explain to the Commission what was in those notes?‑‑‑I've explained it in my witness statement what actually happened on the day, so that was what - that's a - that's what actually happened.

PN286

Don't you think it would have been helpful for the Commission to see your contemporaneous notes of that meeting?‑‑‑Possibly.

PN287

And is it the case that you haven't provided those notes because those notes actually say or explain that you have bargained, negotiated, put forward proposals, listened to proposals from Mr Mooney on that day?‑‑‑It didn't happen, so.

PN288

It didn't happen?‑‑‑No, it didn't happen.

PN289

Then it would have been helpful for the Commission to see those notes. So as we know Mr Mooney sent you a proposed agreement on 5 October 2017. Would you say that that agreement is quite specific to the ETU's claims?‑‑‑Could you please explain the question?

PN290

As in was it clear what the ETU wanted out of the bargaining process?‑‑‑Yes.

PN291

Yes it was, and how long after receiving the enterprise agreement did you go ahead and produce that A3 spreadsheet?‑‑‑It took some time to go through.

PN292

How long is that?‑‑‑Probably six weeks or something.

PN293

Six weeks, and did you work with anyone on that spreadsheet?‑‑‑Somebody else worked on it for me.

PN294

Okay, and who was that?‑‑‑Steven Seymour.

PN295

Steven Seymour, and what does Steven Seymour do in your organisation?‑‑‑He's the admin manager.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN296

He's the admin manager, and what was his role in producing - sorry, I withdraw that. Why did he produce an A3 spreadsheet of your claims?‑‑‑Because I asked him to do so.

PN297

And why did you ask him to do that?‑‑‑To get a comparison between the two EBAs.

PN298

Yes, and that's because you wanted to put that comparison back to Mr Mooney, isn't that right?‑‑‑No, it's not right.

PN299

So what were you going to do with that spreadsheet then?‑‑‑We wanted to understand what was the differences between the two EBAs.

PN300

So that you could then put a claim forward?

PN301

MR HOWARD: I object to this line of questioning. It's not - it's irrelevant.

PN302

THE DEPUTY PRESIDENT: Sorry?

PN303

MR HOWARD: It's irrelevant. The test for your Honour is not whether Mr Bone has done work to understand what Mr Mooney wants. The test is, is Mr Mooney genuinely trying to reach agreement.

PN304

THE DEPUTY PRESIDENT: What point is this line of questioning directed to, Ms Kendall?

PN305

MS KENDALL: Deputy President, it's directed at the employer's assertion that bargaining only began on 1 March 2018. We have put on evidence about bargaining beginning from 5 October 2017 when we first forwarded our claims. I want to establish that bargaining had in fact started or, sorry, had in fact commenced from late in 2017 as opposed to 2018.

PN306

THE DEPUTY PRESIDENT: What we have as I understand it is correspondence sent to Mr Bone on 5 October. He says that he responded by asking for a Word copy of the document. Then there's a meeting on 14 December. There's nothing in between, yes?

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN307

MS KENDALL: Not from the ETU's perspective however I do intend to ask Mr Bone some questions about the period of time between 5 October and 14 December.

PN308

THE DEPUTY PRESIDENT: Yes, but on 14 December it's Mr Bone meets with the ETU for whatever purpose but during that time he produces an A3 spreadsheet which makes comparisons.

PN309

MS KENDALL: Yes.

PN310

THE DEPUTY PRESIDENT: Yes, and then there are no further meetings after that until some time in the early part of 2018, partly because Mr Mooney is away, yes?

PN311

MS KENDALL: Yes.

PN312

THE DEPUTY PRESIDENT: And is there any suggestion that anything occurred prior to the meeting on 1 March?

PN313

MS KENDALL: From 14 December?

PN314

THE DEPUTY PRESIDENT: From anybody, yes.

PN315

MS KENDALL: That's what I'm trying to ascertain. Not from the ETU, but that's what I'm trying to ascertain from Mr Bone as to whether there was work going on in bargaining behind the scenes.

PN316

THE DEPUTY PRESIDENT: By him?

PN317

MS KENDALL: Yes.

PN318

THE DEPUTY PRESIDENT: Well - - -

PN319

MS KENDALL: Because that will then - sorry to interrupt you, Deputy President.

PN320

THE DEPUTY PRESIDENT: That's all right.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN321

MS KENDALL: That will then go to when bargaining commenced and when we can seriously adduce evidence about the ETU genuinely trying to agree.

PN322

THE DEPUTY PRESIDENT: Yes, well bargaining - my interest in the issue, I have to say, is not so much about when bargaining formally or informally commenced but trying to establish a notification time and what flows from that. Because on your version of events notification time occurred either on 5 October or on 14 December. That is when Mr Bone or his company agreed to bargain. A notice of employee rep. rights isn't sent out until some time this year. Yes?

PN323

MS KENDALL: Yes.

PN324

THE DEPUTY PRESIDENT: And the statute requires that an employer take all reasonable steps to issue a notice within 14 days after the notification time. None of the other events which would trigger a notification time appear to have occurred. There isn't a scope order. There isn't a majority support determination, although there was an application for one. But there was not one made and there isn't a low paid determination, so that all we have is the date on which the employer agreed to bargain. On your case that was either 5 October or 14 December. In either case if either of those two days are the notification time then the notice of employee rep. rights was issued well outside the 14 days. That has consequences on the authority of Uniline as to whether or not you can make an agreement at all.

PN325

MS KENDALL: Yes, Deputy President.

PN326

THE DEPUTY PRESIDENT: And so we might be wasting one another's time today.

PN327

MS KENDALL: I'll take that on notice, Deputy President.

PN328

THE DEPUTY PRESIDENT: My preference would be that you consider that now and I'm happy to give you some time. But it just seems to me to present a real issue about the utility of making an order in relation to industrial action in support of an agreement that at least on the facts as I know them currently is incapable of being approved, and that might go to the question whether the union is genuinely trying to reach an agreement.

PN329

MS KENDALL: Yes.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN330

THE DEPUTY PRESIDENT: Because if it is pursuing an instrument that is incapable of - because of the facts - is incapable of being approved then that's a factor that I'll need to weigh up in deciding whether the agreement can be approved - sorry, that's a factor in deciding whether or not the bargaining representative, the union, is currently genuinely trying to reach an agreement. So unless you can point to another date or event that triggered a new notification time, for example such as the parties agreeing or one party withdrawing from bargaining and then re‑starting bargaining as evidenced by the issuing of the subsequent notice, unless there's some evidence about that I'm simply relying on your case Mr Mooney's statutory declaration says it was the 5th. In evidence today he said the 14th. It doesn't matter for present purposes, the result is the same. It's outside the 14 day time limit. I'm happy to stand the matter down. I'll give you a copy of Uniline if you like but - - -

PN331

MR HOWARD: Commissioner, before we do that - and we do have a witness in the box - my objection was that this line of questioning about the preparation he's been doing is irrelevant.

PN332

THE DEPUTY PRESIDENT: Yes, I understand that.

PN333

MR HOWARD: I'd seek a ruling on that. I'm happy to stand the matter down. We can leave Mr Bone in the box for the - - -

PN334

THE DEPUTY PRESIDENT: I'm sure he can get up and walk around.

PN335

MR HOWARD: Yes, he can - he's permitted to walk around a little bit but we won't interfere with him. But Ms Kendall appears to need some instructions and we can leave it at that.

PN336

THE DEPUTY PRESIDENT: Yes. No, I understand that and look, once we resume - I'll give some consideration to your objection while we're adjourned and rule on it.

PN337

MR HOWARD: If the Commission pleases.

PN338

THE DEPUTY PRESIDENT: Ms Kendall, I'll give you a copy of Uniline for your consideration. I might stand the matter down for at least half an hour to give you that opportunity and let my associate know if you require more time, Mr Howard, so that you and your colleagues don't need to stay in the court room. If you could just provide my associate with a contact mobile number.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN339

MR HOWARD: Sure.

PN340

THE DEPUTY PRESIDENT: And we can let you know when we're ready to resume. All right, we're adjourned. Thank you.

<THE WITNESS WITHDREW [11.03 AM]

SHORT ADJOURNMENT [11.03 AM]

RESUMED [11.47 AM]

PN341

THE DEPUTY PRESIDENT: Yes, Ms Kendall.

PN342

MS KENDALL: Thank you, Deputy President, for that time to consider the decision of Uniline Australia and your comments about the notification time. Upon review of the Uniline Australia Ltd decision, it's the ETU's position that the notification time should start - sorry, the proper notification time is at the date that the notice of employee representational rights was issued, that the first round - although we say that the bargaining that occurred prior to the notice of rep rights being issued can be taken into account to discharge the union's onus of proving that we have been genuinely trying to agree, and that the scheme - - -

PN343

THE DEPUTY PRESIDENT: So this is effectively the kind of construction that was adopted I think by a Full Bench in Skilled Offshore where an issue about when bargaining arose or commenced was raised and the union, four unions in that case, sought on several occasions for the employer to issue a notice of employee representational rights and the employer didn't do so until some later time, and that conduct was taken - or the inference drawn from that conduct was that the employer had until the issuing of the notice not agreed to bargaining.

PN344

MS KENDALL: Yes. We say that for the purposes of the approval of the agreement that the parties had been bargaining prior to the notice of rep rights, but the proper construction of the facts is that the notification of time occurred when the notice of rep rights was issued, that the scheme should not and cannot prevent the ETU from taking protected industrial action - - -

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN345

THE DEPUTY PRESIDENT: The reason I was raising it was not so much as necessarily a bar to the making of an order. I think in Maritime Union of Australia v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 , we - I was a member of a Full Bench - considered that, and this was after the notification of the time requirements were inserted for the purposes of notices of employee rep rights, we took the view that the legislature can't have intended that the genuineness of the employer bargaining reps' efforts to reach an agreement be assessed by reference to the actions of the employer, over which the bargaining representative has no control.

PN346

But the reason I was raising it is more to do with this, is whether or not - what I have to be satisfied is that there is a notification period. I don't necessarily have to be satisfied when that notification period occurred, other than it occurred before you made the application. But my question really was directed to what occurs subsequently, and that is, subsequently, assuming you're able to reach an agreement, irrespective of whether I make an order, you're going to have to satisfy a member of the Commission that there was a notification time at a particular date and that the notice of employee representational rights was issued within 14 days of that day or at least reasonable steps to bring that about were taken. So it kind of doesn't matter what I think about when the notification time occurred. It will matter to the person who is giving consideration to this issue.

PN347

Whilst it might be relevant for the purposes of genuinely trying to reach agreement, the more fundamental consideration is this: does the union want to take the risk now of pursuing this line, and assume I make an order and you take your industrial action, or the ballot's successful and you take your industrial action, you're still left with the same circumstances, and a member of the Commission may well take the view that the agreement is incapable of being approved for the reasons that I outlined earlier, and so that all of this will have been for nought.

PN348

The alternative is you might take steps by consent with the employer that you regularise bargaining so that one is able to - if the product of your future negotiations produces an agreement - one is able to actually have an agreement that the Commission can approve. That's the reason I raise it, because ultimately the question of whether or not the union has been or is genuinely trying to reach agreement relates to the steps it has taken, primarily for the purposes of the proposed agreement that it is seeking or that one party is proposing. It's not so concerned about whether or not that agreement is capable of being approved. But this is a fairly fundamental issue and I don't want the parties to be in a position where they reach an agreement and they're not able to satisfy a member of the Commission that the agreement can be approved by the Commission, that's all - and it's a matter entirely for you.

PN349

I'll continue with this application. It's just that - it just seems to me that this is a real issue for you, that's all, and you have an opportunity to rectify it if you wish. If you don't and you - I mean, I'm not sure what the employer's attitude is in relation to your alternative construction; it may suit its position - I mean, I don't mean this disrespectfully at all, but it's position may well be that no(?) bargaining started when you say it started, or at least the employer agreed and you say it agreed, that is, on either 5 October or 14 October.

PN350

MS KENDALL: Yes. I suppose, Deputy President - - -

PN351

THE DEPUTY PRESIDENT: And indeed, in response to questions that I put to Mr Bone, he said that he started bargaining on 1 March but he agreed to bargain at some earlier stage, and that's my recollection of the evidence he gave. So you've got his evidence, you've got Mr Mooney's evidence, all of which point to a notification period of some point earlier than the notice that was issued. It's a matter for you.

PN352

MS KENDALL: Yes, I understand that, Deputy President. Can you just give me a moment to take some instructions?

PN353

THE DEPUTY PRESIDENT: Of course.

PN354

MS KENDALL: Thank you. I have just taken some instructions and we would like to make an application for the matter to be stood down for 24 hours to consider your submissions. It seems to me that the notification time - - -

PN355

THE DEPUTY PRESIDENT: Just to be clear, they're not my submissions.

PN356

MS KENDALL: Sorry, not your submissions but rather your comments.

PN357

THE DEPUTY PRESIDENT: I'm long past that.

PN358

MS KENDALL: Well, past that, yes.

PN359

THE DEPUTY PRESIDENT: But for what it's worth, the view as to - the Full Bench in Maersk expressed a pretty clear view about this issue in the context of its relevance to whether or not the union was and is genuinely trying to reach an agreement, and I wrote that decision, so whilst it's relevant it's probably not going to be fatal to you in this application, that aspect of it, but it may be fatal to ultimately the agreement that you reach.

PN360

MS KENDALL: Being approved.

PN361

THE DEPUTY PRESIDENT: And it's that issue that I want you to think about, whether or not it's wise in the current circumstances to pursue an application which if you're successful on will give the ETU the capacity to organise industrial action, and then let's assume all of that reaches its ultimate conclusion and you reach an agreement, you still have to meet the statutory criteria to have that agreement approved, otherwise it will all have been for nought, that's all.

PN362

MS KENDALL: Yes, I know. I do understand that position. It's - I suppose for me to get instructions as to whether the ETU would like to pursue that or not - - -

PN363

THE DEPUTY PRESIDENT: I understand, yes.

PN364

MS KENDALL: - - - will take me a little longer than half an hour.

PN365

THE DEPUTY PRESIDENT: No, I accept that. I'm happy to adjourn the matter. I won't be able to give you a date tomorrow again, that's all.

PN366

MS KENDALL: You won't - - -?

PN367

THE DEPUTY PRESIDENT: I won't be able to give you a date tomorrow if you want to proceed with this application.

PN368

MS KENDALL: When - sorry, Deputy President - when would the earliest date be?

PN369

THE DEPUTY PRESIDENT: Well, subject to availability of the respondent, it probably won't be until - I may be able to give you a late Friday afternoon listing this week. Mr Mooney has already given evidence, so - - -

PN370

MS KENDALL: Yes. I suppose it's just - - -

PN371

THE DEPUTY PRESIDENT: Yes?

PN372

MR HOWARD: We're about to close our evidence. We have already taken out the general manager much of last week, today - he lives in the valley. I'd like to oppose the application for an adjournment. I want this done. I want the matter resolved. I'm not available next week. The Commission is on an obligation to determine this as quickly as practicable. If my friend needs another five minutes to get further instructions on the comments or preliminary views you've expressed, then she should be able to do so. She's got the branch official here, she's apparently - appears to be a member as well.

PN373

THE DEPUTY PRESIDENT: The other alternative of course is that we could finish Mr Bone's evidence and then adjourn. I appreciate the anxiety that the respondent has to have this matter resolved as quickly as possible, but I don't want - if ultimately the ETU withdraws its application then, you know, that's a better outcome for all concerned.

PN374

MR HOWARD: Yes.

PN375

MS KENDALL: We are happy to finish Mr Bone's evidence, and that of Mr Bradford's, and then adjourn the matter to come back for, say, final submissions and possibly on Friday afternoon. It might be that in‑between that time that the ETU takes another approach, and if not, then the matter can be finalised on Friday.

PN376

THE DEPUTY PRESIDENT: Yes. I have a matter which I don't anticipate will go very long on Friday afternoon, so I could list it - there's a matter that I don't anticipate will last any longer than an hour so I could list it for 3.30.

PN377

MR HOWARD: Your Honour's heard evidence, I think, from Mr Mooney that there's a meeting on Thursday. We need to complete our evidence in order for that meeting to be able to properly occur, so if Mr Bone could be recalled, then we can do Mr Bradford.

PN378

THE DEPUTY PRESIDENT: Yes, we could do Mr Bone and we can do Mr Bradford as well.

PN379

MR HOWARD: If the Commission pleases.

PN380

THE DEPUTY PRESIDENT: And I think that's what Ms Kendall was suggesting. Yes, let's recall Mr Bone.

<GRAHAM ANDREW BONE, RECALLED [12.02 PM]

CROSS-EXAMINATION BY MS KENDALL, CONTINUING [12.02 PM]

PN381

THE DEPUTY PRESIDENT: Yes, take a seat, Mr Bone. Before the adjournment, counsel for the respondent raised an objection as to the relevance of questions concerning Mr Bone's conduct in relation to any steps that he took about preparation for bargaining. That was the gist of your questions, was it not, Ms Kendall?

PN382

MS KENDALL: Yes, Deputy President.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN383

THE DEPUTY PRESIDENT: I do consider those questions are not relevant to an issue that I need to decide. The question of whether or not the bargaining representative has been or is genuinely trying to reach an agreement are directed to conduct and steps taken by that bargaining representative and are not generally informed by any conduct that the employer has engaged in, save that it might, you know, to the extent that something is suggested that the particular conduct, by a union, for example, that's perhaps inconsistent with some bargaining obligation, et cetera, and the conduct of the employer might explain that, but that's not where you're getting at. You were seeking to, I thought, establish that Mr Bone had taken steps and therefore agreed to bargain earlier, which given the case theory you want to subsequently advance I'm not sure you want to ask those questions. So the questions are irrelevant. Anything else, Ms Kendall?

PN384

MS KENDALL: Yes, just a couple of questions. Thank you, Deputy President. Mr Bone, when you direct your employees to perform work outside of the Yallourn mine site, which enterprise bargaining agreement do you pay them pursuant to?‑‑‑It's all under the old agreement.

PN385

The old agreement that - - -?‑‑‑The 2010 ‑ 2014 agreement.

PN386

The parties are currently bargaining?

PN387

THE DEPUTY PRESIDENT: Just so I understand things, Mr Bone, you have an agreement which was included on a greenfields basis, which has state‑wide operation?‑‑‑Correct.

PN388

And then you have another agreement which was also concluded on a greenfields basis in relation to Yallourn?‑‑‑Correct.

PN389

The project?‑‑‑Yes.

PN390

And this agreement that is being sought by the ETU is on a state‑wide basis?‑‑‑That's my understanding, yes.

PN391

Is that right?

PN392

MS KENDALL: Yes.

PN393

THE DEPUTY PRESIDENT: Yes, all right. Thank you.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN394

MS KENDALL: Mr Bone, in your statement, specifically at paragraph 16, you say that you were a little over your head when you came to the Fair Work Commission for the directions hearing for the majority support determination? That's right?‑‑‑Yes.

PN395

How many enterprise bargaining agreements have you been involved in bargaining before?‑‑‑None personally.

PN396

None personally?‑‑‑Except for the - sorry, I retract that - except for the Yallourn agreement.

PN397

Mr Bone, I'd just like to show you a document. I'm sorry, is there another copy for the Deputy President there? I may be one short, sorry. No, I can give you this?‑‑‑Thank you.

PN398

Mr Bone, you'll see there that there's five agreements under "Agreement title" which O&M are a party to?‑‑‑Mm‑hm.

PN399

Can you please tell the Commission how many of those agreements you were involved in the bargaining for?‑‑‑I was involved with the Yallourn agreement, the initial Greenfields Agreement 2010 ‑ 2014; I was a party to the other, the CFMEU, but that was done by my business partner - he'd done the negotiations on that. As a company director I had to sign those documents.

PN400

Yes. So at least since 2013 when you bargained the O&M and ETU Greenfields Agreement 2010 and 2014, you've been aware of the importance of what the notice of employee representational rights has, haven't you?‑‑‑As I said, the other agreements were done by my partner, so as far as the representational rights, it was done by him.

PN401

But not the O&M and ETU Greenfields Agreement, you just told the Commission that you bargained that agreement?

PN402

THE DEPUTY PRESIDENT: Who does the notice of employee rep rights be given to in a greenfields agreement?

PN403

MS KENDALL: That's true. Thank you.

PN404

THE DEPUTY PRESIDENT: Unless you're telling me it wasn't a greenfields agreement.

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN405

MS KENDALL: Yes, my apologies. Mr Bone, have you ever issued a notice of rep rights before, employee representational rights, prior to you engaging AMMA to issue the notice in this matter?‑‑‑Not to my knowledge.

PN406

When Mr Mooney was asking you to issue the notice of rep rights, why didn't you do that?‑‑‑I guess I didn't understand the full issue about the rep rights, and that's probably why I didn't.

PN407

What didn't you understand?‑‑‑I didn't understand the process.

PN408

Did you seek any assistance from anyone when Mr Mooney asked you to issue the notice of rep rights?‑‑‑Yes. It was AMMA at that stage.

PN409

In March 2018?‑‑‑Correct.

PN410

Shouldn't you have sought some assistance or sought some clarification from Mr Mooney in relation to the purpose of the notice of rep rights if you were unsure?‑‑‑In hindsight, possibly. The request didn't come till later.

PN411

Well the request came in 2017, but isn't it the case that you didn't issue the notice of rep rights because you knew until you did that, the ETU and its members would not be able to take protected action?‑‑‑No, that's not correct.

PN412

No more questions. Thank you.

PN413

THE DEPUTY PRESIDENT: Mr Howard, any re-examination?

PN414

MR HOWARD: No re-examination. I call Mr Bradford.

PN415

THE DEPUTY PRESIDENT: Yes, thank you. Thank you, Mr Bone. Thank you for your evidence. You're excused.

<THE WITNESS WITHDREW [12.09 PM]

PN416

MS KENDALL: Deputy President?

PN417

THE DEPUTY PRESIDENT: Yes?

*** GRAHAM ANDREW BONE XXN MS KENDALL

PN418

MS KENDALL: I failed to tender the Fair Work Commission documents which lists the five O&M agreements.

PN419

THE DEPUTY PRESIDENT: Yes.

PN420

MS KENDALL: Is it possible for me to tender those now?

PN421

THE DEPUTY PRESIDENT: Any objection, Mr Howard?

PN422

MR HOWARD: No objection, your Honour.

PN423

THE DEPUTY PRESIDENT: Thank you. I'll mark the document, which is an extract from the Commission's website concerning agreements which show five agreements to which O&M is a party, as exhibit 5.

EXHIBIT #5 EXTRACT FROM THE FWC WEBSITE SHOWING FIVE AGREEMENTS TO WHICH O&M IS A PARTY

PN424

THE DEPUTY PRESIDENT: Mr Bradford, would you mind taking a seat in the witness box? Thank you.

PN425

THE ASSOCIATE: Please state your full name and address?

PN426

MR BRADFORD: Douglas Anthony Bradford, Level 14, 55 Collins Street, Melbourne.

<DOUGLAS ANTHONY BRADFORD, SWORN [12.11 PM]

EXAMINATION-IN-CHIEF BY MR HOWARD [12.11 PM]

PN427

THE DEPUTY PRESIDENT: Thank you, Mr Bradford. Take a seat. Yes, Mr Howard.

PN428

MR HOWARD: Mr Bradford, can you please state your business address for the Commission?‑‑‑Level 14, 55 Collins Street, Melbourne.

PN429

Have you made a statement in this matter?‑‑‑I have.

*** DOUGLAS ANTHONY BRADFORD XN MR HOWARD

PN430

Is it the one comprising of 10 paragraphs?‑‑‑Yes.

PN431

You don't have a copy of it on you, do you? Perhaps that could be arranged?

PN432

THE DEPUTY PRESIDENT: Mr Howard, do you want him to have the annexures as well?

PN433

MR HOWARD: Yes, if that's possible.

PN434

THE DEPUTY PRESIDENT: Perhaps you can borrow this big folder of mine, Mr Bradford. You'll find your statement in there?‑‑‑Thank you, Deputy President.

PN435

MR HOWARD: Behind tab 2, is that it there?‑‑‑Yes, that's it.

PN436

If you go - if you just leaf through for me - tab 3, tab 4, tab 5 and tab 6, they are the annexures to your statement, is that right?‑‑‑Yes. I checked through those, yes.

PN437

Are there any changes you need to make to your statement?‑‑‑No.

PN438

I tender the statement, your Honour.

PN439

THE DEPUTY PRESIDENT: Any objection, Ms Kendall?

PN440

MS KENDALL: No.

PN441

THE DEPUTY PRESIDENT: I will mark the witness statement of Tony Bradford dated 30 May 2018 comprising 10 paragraphs, together with the four annexures marked TB1 through TB4, as exhibit 6.

EXHIBIT #6 WITNESS STATEMENT OF TONY BRADFORD DATED 30/05/2018 PLUS FOUR ANNEXURES MARKED TB1 TO TB4

PN442

THE DEPUTY PRESIDENT: Mr Howard?

*** DOUGLAS ANTHONY BRADFORD XN MR HOWARD

PN443

MR HOWARD: If the Commission pleases, no further questions.

PN444

THE DEPUTY PRESIDENT: Thank you. Cross-examination, Ms Kendall?

PN445

MS KENDALL: Yes, thank you.

CROSS-EXAMINATION BY MS KENDALL [12.14 PM]

PN446

MS KENDALL: Mr Bradford, in your statement at paragraph 8 you talk about the meeting that you had with Mr Mooney on 14 May 2018?‑‑‑Yes.

PN447

In this statement you say that Mr Mooney used the expression, "boots and all?"---Yes.

PN448

Did you take any notes of that meeting?‑‑‑Yes, I did, but generally I've got a good recollection of what goes on in meetings, so I didn't take detailed notes, no.

PN449

When you prepared this statement, did you use those notes to assist you in preparing the statement?‑‑‑No. I did it from memory.

PN450

So isn't it the case that probably your contemporaneous notes of that meeting would better assist the Commission than your recollection?‑‑‑No, not really.

PN451

No? Why is that?‑‑‑Because they're very - there was only a couple of references jotted down.

PN452

And what were those references?‑‑‑Well, I haven't got it with me.

PN453

Did you provide those notes to your lawyers?‑‑‑No. The letter I drafted on the 21st is my recollection of what happened at that meeting.

PN454

And in that recollection, of course you didn't say that Mr Mooney used the expression, "boots and all?"---Well, no, it wasn't relevant to that correspondence.

PN455

I put it to you that Mr Mooney didn't actually use the expression, "boots and all?"---He certainly did.

*** DOUGLAS ANTHONY BRADFORD XXN MS KENDALL

PN456

If he had used the expression, "boots and all", then wouldn't you have written it down?‑‑‑I understand exactly what he was saying. In fact, I repeated back the words to him and said I know what you mean by "boots and all."

PN457

So why didn't you write that down?‑‑‑Because I didn't need to. It's not my practice to do that.

PN458

And yet you did make some notes of the meeting?‑‑‑Yes - a couple of lines, yes. I actually took the references from the correspondence we were looking at.

PN459

You didn't think it was important to provide those notes to the Commission?‑‑‑No.

PN460

They're my questions.

PN461

THE DEPUTY PRESIDENT: Any re-examination?

PN462

MR HOWARD: No, your Honour. If Mr Bradford could be excused?

PN463

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Bradford, for your evidence. You're excused.

<THE WITNESS WITHDREW [12.16 PM]

PN464

MR HOWARD: I prepared - this is in evidence, and I don't seek to tender it - it's more an aide‑memoire. It's my chronology of events. I'd like to hand it up. It's as mutual as possible. I am not trying to cast any fact‑finding with it. It's merely a chronology of events, i.e. the correspondence was sent and meetings occurred. I do that to assist, well, my understanding but also hopefully the Commission's understanding of events, and I only hand that up as an aide‑memoire, and it doesn't need to be tendered.

PN465

THE DEPUTY PRESIDENT: Yes, thank you for that.

PN466

MR HOWARD: Unless it's your Honour's practice to do that.

PN467

THE DEPUTY PRESIDENT: No.

PN468

MR HOWARD: That's the employer's evidentiary case.

*** DOUGLAS ANTHONY BRADFORD XXN MS KENDALL

PN469

THE DEPUTY PRESIDENT: Yes.

PN470

MR HOWARD: The only things I have to deal with are administrative in nature, your Honour.

PN471

THE DEPUTY PRESIDENT: Can I ask you this?

PN472

MR HOWARD: Yes.

PN473

THE DEPUTY PRESIDENT: The issue of the identity of the employer of the employees, I noted earlier at the beginning that the agreement that is being sought by the CEPU, though titled "The O&M Pty Ltd and ETU Agreement", suggests that LSA People Pty Ltd, which appears to be a trustee company - - -

PN474

MR HOWARD: A services trust for the trust, yes.

PN475

THE DEPUTY PRESIDENT: Services trust, yes - is said to be the employer that will be covered by the agreement, and there's obviously some disputation about who employs which employees. Are you able to shed any light on that for me?

PN476

MR HOWARD: Am I able to - - -?

PN477

THE DEPUTY PRESIDENT: Shed any light on that issue for me?

PN478

MR HOWARD: Yes. Paragraph 3 of Mr Bone's statement, he gives evidence that he has 25 permanent staff and he's speaking of O&M.

PN479

THE DEPUTY PRESIDENT: Yes.

PN480

MR HOWARD: The employer is O&M, and LSA People Pty Ltd has really nothing to do with it, and our submission will be that it's just another manifestation of our bargaining opponent having not off the ground yet. He doesn't know. That was his evidence. That's about as far as the relevance of that.

PN481

THE DEPUTY PRESIDENT: Yes, thank you. All right. The administrative matters?

PN482

MR HOWARD: I seek a direction from the Commission that the ETU notify us by 12 pm Wednesday as to whether they maintain this application. That's 24 hours, which is what was requested. I do that for reasons that - for firstly, there's this meeting that's occurring on Thursday. We need to know what's happening with that meeting. Secondly, that if it's the case that this application is withdrawn, then that saves my client the legal cost and further time and travel into Melbourne, and we can move on with our lives.

PN483

THE DEPUTY PRESIDENT: Does that trouble you, Ms Kendall?

PN484

MS KENDALL: No, we don't. That's fine.

PN485

MR HOWARD: I'm indebted to my friend.

PN486

THE DEPUTY PRESIDENT: You don't need a direction to that effect?

PN487

MS KENDALL: If, Deputy President, if you'd like to make the direction - - -

PN488

THE DEPUTY PRESIDENT: I'm not minded to make one if you agree to it.

PN489

MS KENDALL: Yes, we will of course agree to that.

PN490

THE DEPUTY PRESIDENT: Thank you.

PN491

MR HOWARD: I thank my learned friend for that.

PN492

THE DEPUTY PRESIDENT: Yes, all right.

PN493

MR HOWARD: And I have no other matters.

PN494

THE DEPUTY PRESIDENT: Yes, all right. I'll tentatively list this matter for not before 3.30 pm on Friday, subject to the CEPU advising the respondent and the Commission by 12 midday tomorrow of its intentions in relation to this application. We are adjourned. Thank you very much.

ADJOURNED UNTIL FRIDAY, 8 JUNE 2018 [12.21 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PETER DOUGLAS MOONEY, AFFIRMED..................................................... PN44

EXAMINATION-IN-CHIEF BY MS KENDALL.............................................. PN44

EXHIBIT #1 WITNESS STATEMENT OF PETER MOONEY DATED 04/06/2018 COMPRISING 31 PARAGRAPHS AND ANNEXURES PM1 THROUGH PM6 PN59

EXHIBIT #2 STATUTORY DECLARATION OF PETER MOONEY DECLARED AT MORWELL ON 25/05/2018................................................................................. PN108

CROSS-EXAMINATION BY MR HOWARD.................................................. PN109

EXHIBIT #3 COPY EMAIL CORRESPONDENCE FROM MR GRAHAM BONE DATED 14/12/2017............................................................................................................... PN162

RE-EXAMINATION BY MS KENDALL......................................................... PN187

THE WITNESS WITHDREW............................................................................ PN197

GRAHAM ANDREW BONE, SWORN............................................................. PN203

EXAMINATION-IN-CHIEF BY MR HOWARD............................................. PN203

EXHIBIT #4 WITNESS STATEMENT OF GRAHAM BONE DATED 30/05/2018 WITH ANNEXURES GB1 AND GB2............................................................................ PN212

CROSS-EXAMINATION BY MS KENDALL................................................. PN248

THE WITNESS WITHDREW............................................................................ PN340

GRAHAM ANDREW BONE, RECALLED..................................................... PN380

CROSS-EXAMINATION BY MS KENDALL, CONTINUING.................... PN380

THE WITNESS WITHDREW............................................................................ PN415

EXHIBIT #5 EXTRACT FROM THE FWC WEBSITE SHOWING FIVE AGREEMENTS TO WHICH O&M IS A PARTY................................................................................ PN423

DOUGLAS ANTHONY BRADFORD, SWORN.............................................. PN426

EXAMINATION-IN-CHIEF BY MR HOWARD............................................. PN426

EXHIBIT #6 WITNESS STATEMENT OF TONY BRADFORD DATED 30/05/2018 PLUS FOUR ANNEXURES MARKED TB1 TO TB4................................................ PN441

CROSS-EXAMINATION BY MS KENDALL................................................. PN445

THE WITNESS WITHDREW............................................................................ PN463

Fair Work Commission Transcripts

B2018/415, Transcript of Proceedings [2018] FWCTrans 210 (19 June 2018)