PN1

THE DEPUTY PRESIDENT: Mr Crawshaw, you're appearing for the applicant?

PN2

MR S CRAWSHAW: No, Mr Neil is.

PN3

THE DEPUTY PRESIDENT: Okay.

PN4

MR I NEIL: I'm seeking permission to - - -

PN5

THE DEPUTY PRESIDENT: Sorry, the - yes, the - - -

PN6

MR NEIL: Seeking permission to appear.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR NEIL: I don't think that's been dealt with yet, has it? Maybe at one of the directions hearings, I can't remember.

PN9

THE DEPUTY PRESIDENT: I think so but, yes.

PN10

MR CRAWSHAW: We had thought so. I'm - we had thought that permission has been granted for everyone.

PN11

THE DEPUTY PRESIDENT: Yes, well I grant permission anyway, so that's - - -

PN12

MR NEIL: If it please, your Honour, I appear I appear with my learned friend, Mr Sharif, for the applicant.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR NEIL: Thank you.

PN15

MR CRAWSHAW: I appear for the CFMMEU together with Ms Sarlos.

PN16

THE DEPUTY PRESIDENT: Thank you. How did you wish to proceed?

PN17

MR S CRAWFORD: Sorry. Sorry, your Honour.

PN18

THE DEPUTY PRESIDENT: Sorry.

PN19

MR CRAWFORD: My name's Crawford, initial S, for the Australian Workers Union.

PN20

THE DEPUTY PRESIDENT: Yes.

PN21

MR P TURNER: Turner, P, for the Australian Manufacturing Workers' Union.

PN22

THE DEPUTY PRESIDENT: Thank you.

PN23

MR NEIL: In answer to your Honour's question, we had discussed that matter between ourselves and had thought, subject to anything that your Honour wished, that we might begin by saying something relatively short, if that's a convenient course.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR NEIL: May we do so now?

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR NEIL: We'd thought it might be helpful to begin by saying something about the nature of the present application and the purpose of this hearing. In dealing with this application, the Commission is exercising one of its administrative powers not an arbitral power and our submission is that one consequence of that is that practice and procedure apposite to an arbitration are inapposite here.

PN28

We understand that what the Commission is now doing is part of a process by which the Commission - by which your Honour is informing yourself, as your Honour considers appropriate, for the purpose of considering whether you have the requisite states of satisfaction that are necessary or required for the approval of the two agreements and, of course, your Honour has wide powers in that regard under section 590 of the Fair Work Act.

PN29

We are anxious, and may we say this quite explicitly, at the beginning of today's proceedings. We are anxious not to stand in the way of any of the unions having every reasonable opportunity to say anything that they want to say, to put anything before your Honour that they want to put before the Commission by way of contradicting the applicant's position that the two agreements can and should be approved and as we understand it, one, at least one, and perhaps the most important of the purposes of today's hearing, if we can adopt that expression, is to give the unions that opportunity in addition to the extensive opportunities that they have already had.

PN30

We don't know what the unions want to say today. Last night we were served with a bundle of documents on the part of the CFMMEU, documents which I've not had an opportunity to read or consider in any sensible way, and we don't know how the CFMMEU intends to use those documents or what they want to say about them. We don't make any complaint about that. That, as we understand it, is part of the process upon which your Honour has embarked. It's one of the purposes of today's hearing to allow the CFMMEU and all of the unions the opportunity, as we say, to say anything they want to say by way of contradicting our position as to the approval of the agreements.

PN31

It may be that when we've heard what the unions want to say, when we've seen everything that they want to put before your Honour, it may be that it will be nothing more than the repetition of something that they have already said. It may be something new and something that we can deal with today but it may also be something new that we can't deal with today, at least in any sensible or proper way, and, of course, it goes without saying that if that's what happens, then procedural fairness would require that we would have a reasonable opportunity to deal with that material.

PN32

There being no mandated, statutorily mandated, end to the process of inquiry upon which your Honour embarked, that circumstance presents no difficulty, we can deal with it at the end of the day. Our principal concern, if we may say so explicitly, our principal concern is that by the end of the day we know everything that all of the unions wish to say by way of contradicting our position that both agreements can and should be approved and that we have either dealt with everything they have to say or arrangements have been made for us to have a reasonable opportunity to do so.

PN33

In the same way, we would be, and again may we say this explicitly, we would be anxious to know, if any, residual concerns your Honour might have either at the end of today or after your Honour has had an opportunity to consider what has been said and put before you today, any residual concerns that your Honour might have so that we might have an opportunity to deal with those. This position seems to us to be unarguable. Your Honour should n t conclude that you cannot be satisfied of anything that the statute - of which the statute requires satisfaction because you do not have a particular piece of information before you without first having given the applicant an opportunity to put that information before you.

PN34

THE DEPUTY PRESIDENT: Yes.

PN35

MR NEIL: As we would understand it, the procedure that your Honour has adopted throughout and, in particular, by convening this hearing is calculated to achieve all that purpose as well as the purpose of giving everyone, the applicants and the unions, a reasonable opportunity to put before you anything that they wish your Honour to consider. If it please your Honour, that's what we'd wanted to say at the beginning about the nature of this application and the purpose of this hearing. If it's convenient to do so, can we turn from that to say something shortly, something short, about the substantive matters that your Honour has before you today?

PN36

THE DEPUTY PRESIDENT: Yes, that would be good.

PN37

MR NEIL: Our written submissions address both the matters that your Honour has raised with us and with the contentions or arguments or propositions that have been put by each of the unions in their written material. We don't, this morning, wish to repeat anything that we have said there but we did wish, by way of supplementing our written submissions and material, to make some short observations about some particular matters.

PN38

THE DEPUTY PRESIDENT: Just to confirm, I've got your written submissions. One is 6 March 2019 which deals with the Commission issues.

PN39

MR NEIL: Correct. That's a response to the, perhaps we might call it, the issues letter of 14 February 2019.

PN40

THE DEPUTY PRESIDENT: Yes, and the other one was 4 April 2019.

PN41

MR NEIL: Correct. There are also two statements and they address matters of - some of the matters raised by the unions. One is a statement of Jasmine Veaney, V-e-a-n-e-y, of 4 April 2019.

PN42

THE DEPUTY PRESIDENT: Yes.

PN43

MR NEIL: The other is a statement of Rebecca Bowler, B‑o-w-l-e-r, also of 4 April 2019. I don't know whether your Honour had wished us to tender that material. That doesn't seem an obvious course in an administrative procedure like this but if your Honour wishes us to do so, then we do so now.

PN44

THE DEPUTY PRESIDENT: It's probably easiest, I think, just for the record and - - -

PN45

MR NEIL: Then we do so. Perhaps first the statement of Ms Veaney.

PN46

THE DEPUTY PRESIDENT: Yes. Is there any objections to that?

PN47

MR CRAWSHAW: No.

PN48

THE DEPUTY PRESIDENT: I'll just mark that A1.

EXHIBIT #A1 STATEMENT OF JASMINE VEANEY DATED 04/04/2019

PN49

MR NEIL: Then the statement of Ms Bowler.

PN50

THE DEPUTY PRESIDENT: Any objections?

PN51

MR CRAWSHAW: No.

PN52

THE DEPUTY PRESIDENT: Thank you, A2.

EXHIBIT #A2 STATEMENT OF REBECCA BOWLER

PN53

MR NEIL: That's the written material.

PN54

THE DEPUTY PRESIDENT: Yes, thank you.

PN55

MR NEIL: Now by way of supplementing that may we say something short about some particular matters. The first concerns, if it be convenient to deal with that now, the first concerns concerns the significance of the site specific agreement clauses in the two agreements, which as your Honour will have seen features in the submissions made for the propositions put by the unions in their written submissions. Both agreements, as your Honour has seen, contain clauses that - of the kind that are conventionally called site specific clauses. That is they are clauses that delimit the coverage of the agreement such that it does not cover employees whose work is or becomes covered by a site specific agreement.

PN56

As your Honour will be aware, a Full Court of the Federal Court has recently considered the question of whether agreements - clauses of that kind are lawful. It did so in CPB Contractors v CFMMEU, a copy of that decision is behind tab 18 in the two volume bundle of authorities that we provided to your Honour's Associate this morning. We don't invite your Honour to turn to that now but we do wish shortly to remind your Honour that in that decision the Full Federal Court held that site specific clauses are not unlawful opt out clauses. Paragraphs 38 and 39 of the reasons of the majority are perhaps the most convenient place to find the reasoning upon which that conclusion is based.

PN57

Essentially it is because site specific clauses are not means by which the employer and employees can opt out of the coverage of an agreement but they are clauses which simply mark the boundaries of coverage. The hinge upon which that - the hinges upon which that conclusion are based are first, the proposition that section 58 deals with coverage and not with - or the site specific clauses deal with coverage and not with the application of the agreement in question. Second, the focus - the statutory focus on the particular employment of the employees in question.

PN58

Hitherto and before the Full Federal Court handed down its decision, the unions have contended here that the site specific clauses in these two agreements are unlawful and that that's a reason why they ought not to be approved. That is no longer, as we understand it, the argument that is put. Instead it is said that the effect of those clauses was not explained to the employees in a way that answers the statutory requirement. It's a different argument.

PN59

Our answer to that is twofold and we've addressed both in writing. One is to say that the extent and scope of the obligation, of an employer's obligation to explain the terms of the agreements is not that which the unions - that to which the unions contend. The other answer though is to say that the position advanced by the unions is not factually correct. By way of an example can we point first of all to the statement of Jasmine Veaney and in particular to annexures JV8 at page 2. There your Honour will find a question and answer and explanatory note for the production agreement, JV8 at page 2.

PN60

THE DEPUTY PRESIDENT: Yes, I have that.

PN61

MR NEIL: When your Honour looks at that your Honour will find that it provides an explanation in about the middle of that page under the second - in the second question and answer. It provides an explanation that the way coverage works is that if approved the agreement will cover all company employees who perform work at any Minerals Australia operation, unless there is a site specific agreement in place. If there is such a site specific agreement, it is explained that it is that agreement that will apply. That explanation is supplemented by what is said about coverage on page 4 in the question and answer document.

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR NEIL: A similar explanation was provided in relation to the maintenance agreement. The maintenance agreement is the subject of Ms Bowler's statement and there one would see the same - essentially the same material and propositions - and information provided in annexure RB1 at page 3. Again in the second of the questions and answers.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR NEIL: On that basis we say that the complaint made by the unions in relation to the explanation provided of the effect of the site specific agreement is without substance.

PN66

Now if it please, your Honour, that's what we wanted to say on that topic by way of supplementing what we put in writing. May we move to a different topic.

PN67

THE DEPUTY PRESIDENT: Yes.

PN68

MR NEIL: The larger propositions advanced as to the - in relation to subsection 180(5), that is section 180(5).

PN69

THE DEPUTY PRESIDENT: Yes.

PN70

MR NEIL: Each of the unions have suggested that your Honour cannot be satisfied that either agreement was genuinely agreed for the purpose of section 188, because your Honour cannot be satisfied that the employers had in respect of both agreements taken all reasonable steps to ensure that the terms of the agreement and the effect of those terms were explained to the relevant employees. That being the requirement of section 180(5). We have dealt with that in our written material in two ways: First, we say that the unions' arguments and suggestions proceed on a misunderstanding and misapplication of principle as to the true requirements of section 180(5). Second, we say that the unions' contentions in this area are factually incorrect, that we engage on both levels; principle and fact.

PN71

As to the first of those levels, the question of principle. As your Honour will have seen in support of their arguments and suggestions the unions rely on the decision of the Full Federal Courts in One Key. That decision is behind tab 29 of our bundle and might we remind your Honour of what the Full Court said in paragraph 105, which is on page 24 and 25.

PN72

THE DEPUTY PRESIDENT: Sorry tab, what was it?

PN73

MR NEIL: Twenty-nine.

PN74

THE DEPUTY PRESIDENT: My one goes up 20.

PN75

MR NEIL: It's in the second volume, there are two bound volumes if it please, your Honour.

PN76

THE DEPUTY PRESIDENT: Sorry, it's under another folder. Yes, paragraph 100?

PN77

MR NEIL: 105 if it please, on pages 24 and 25.

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MR NEIL: In that paragraph the Full Federal Court identifies the nature of the task that your Honour has in this area. As your Honour will recall, in One Key the Full Court held that the Commission was in jurisdictional error in forming the requisite state of satisfaction because the only material that it had before it about the content of the - the fact and the content of the explanations that had been provided to the employees was in fact no material at all. There was nothing more than their assertion in the material - I'm sorry, let me start again. The Commission had nothing more before it than a bare assertion on the part of the applicant employer that it had complied with the statutory obligation, and as the Full Federal Court held in paragraphs 111 and 112 - - -

PN80

THE DEPUTY PRESIDENT: Yes.

PN81

MR NEIL: - - - that might barely have been said to be some evidence but it was not - but it was in effect - but it was not enough to enable the Commission lawfully to reach the requisite state of satisfaction because it had no content. The Commission as the Full Federal Court held in paragraph 112 was required to consider the content of the explanation that was given and the terms in which it was conveyed, amongst other contextual requirements, and so the Full Federal Court held, there was nothing in the material before the Commission that answered that description.

PN82

It's important we would respectfully submit to recall that factual circumstances, the factual underpinning of what is said in One Key because ultimately - because it demonstrates that ultimately the true statement of principle to be drawn from One Key is that in order to discharge its statutory function in an application of this kind, the Commission must be satisfied that all reasonable steps were taken by the employer to explain the terms of the agreement, and its effect and the bare assertions made by an employer to that effect will not provide a sufficient basis for the Commission to form that state of satisfaction. The Commission must have a sufficient evidentiary basis upon which to properly reach that state of satisfaction.

PN83

It is our ultimate submission that the material that your Honour has before you now, already has before you, amply meets that test and is - not only is sufficient for your Honour lawfully and properly to form the requisite state of satisfaction but with respect demonstrates that your Honour both can and should do so. Whatever this case is, it is not a One Key case. At the risk of belabouring the point with which we started, if your Honour having heard everything that everyone wants to say is left wondering whether a particular piece of information that appears to be missing exists, then we would ask that your Honour identify that to us and provide us with an opportunity to give you that information.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR NEIL: An important aspect of One Key, the Full Federal Court's decision in One Key if we can return to that for a moment, is that the Full Court did not beyond what one sees in paragraphs 111 and 112, the Full Court did not lay down any principles as to the content of the explanation that was required in any particular circumstance. The recent decision of the Full Bench of this Commission in Ditchfield Mining demonstrates why that is so.

PN86

It's so because the content of the explanation required in any particular case is contextual, it depends entirely upon the circumstances of that case. There is no general rule. We've given your Honour a copy of the Full Bench's decision in Ditchfield behind tab 17 of the bundle and your Honour will see, I perhaps won't ask your Honour to turn that up now but - - -

PN87

THE DEPUTY PRESIDENT: Yes, I've read that, yes.

PN88

MR NEIL: - - - in paragraph 70 your Honour will have seen that the Full Bench observed this:

PN89

How many steps and the content of those steps will necessarily depend on the circumstances.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR NEIL: We'd also remind your Honour of the terms of paragraph 71 of that judgment. In Ditchfield, as your Honour will recall, the relevant error was that there was no decision before the primary - no material or evidence, I'm sorry, before the primary decision maker as to the content of the explanations that were provided. That was what was missing. Your Honour will see that discussed in, for example, paragraphs 83 to 85 of Ditchfield.

PN92

If one looks at both One Key and Ditchfield, this proposition in our submission, emerges. There is no universal norm as to the content of the explanation that is required to be given or the way in which that explanation must be given. The content of the explanation and the way in which it is given all depends on the circumstances. The evaluation that your Honour is required to make is circumstantial and contextual. It's an evaluation that importantly focuses on the steps that were taken to achieve the stipulated end rather than on the end itself and its achieve. That sounds perhaps as we put it a rather abstract proposition but it's a striking feature of subsection (5) and section 180, that it does not mandate the achievement of the stipulated objective. Its focus is on the process rather than the result.

PN93

What your Honour is required by the provision to do is to identify the steps that were taken and to make an evaluative assessment about whether those steps were reasonable. May we illustrate that proposition in this way, this is an extreme example and we don't suggest that any of the explanations that we provided have this character, although it is suggested that some do. Suppose an explanation were given as to a particular matter that was wrong, incorrect. That would not of itself mean that the employer who had provided the explanation had not met its obligations under subsection (5) of section 180. One can do or say something wrong or incorrect but nevertheless have taken reasonable steps in doing so.

PN94

THE DEPUTY PRESIDENT: Yes.

PN95

MR NEIL: That's a proposition which is often in applications of this kind lost in the mass of detail but it is an important proposition. The focus is on what steps were taken and in the circumstances were those steps reasonable.

PN96

THE DEPUTY PRESIDENT: Do you say at all that the steps would change or the circumstances will be different for a sophisticated employer versus a non sophisticated employer and - - -

PN97

MR NEIL: That's correct.

PN98

THE DEPUTY PRESIDENT: Yes.

PN99

MR NEIL: Correct. That's a useful example if we may say of the way in which that proposition works.

PN100

THE DEPUTY PRESIDENT: Yes.

PN101

MR NEIL: That's why it's all contextual and all circumstantial.

PN102

THE DEPUTY PRESIDENT: Yes, thank you.

PN103

MR NEIL: Our fundamental proposition in this area as your Honour has seen in our written material is that we did take all reasonable steps to explain the terms of the agreements in question and their effect, and that for that reason we did comply with or rather your Honour can be satisfied of compliance with subsection (5) of section 180. One thing that we - may we draw attention to one thing within that area in the material, and that is to remind your Honour that - of our proposition that it is not necessary in every case and it was not necessary in this case to include within the explanation a line by line comparison between the agreement in question and the underlying award or awards. That's an important them in the material that your Honour already has before you.

PN104

THE DEPUTY PRESIDENT: Yes.

PN105

MR NEIL: Our ultimate submission in that regard or proposition in that regard is we fall on the right side of that line in this case. That leads into the second way in which we answer or deal with this overall contention, that is that your Honour cannot be satisfied in the terms required by subsection (5) of section 180, and that is to point to the material that your Honour actually has. This is, as we've already observed not a One Key case and it doesn't appear to us that any of the unions contend that it is. There is no contention that your Honour does not have any evidence of the content of the explanations that were required, such a contention would not be possible of course in the face of the material that your Honour does have.

PN106

That immediately takes us out of One Key and it takes us out of Ditchfield as well. What the unions seem to do is to challenge the adequacy or the correct characterisation of the employer's explanations to employees that certain terms of the agreements were different to, more advantageous or less beneficial than the relevant underlying award or awards. We say that all of those contentions are factually incorrect. We've dealt with them in detail, particularly in paragraph 72 to 96 of second written submission - 72 to 100 I'm sorry of our second written submission.

PN107

In addition to what we there say, may we draw attention to the evidence that the employees were provided with relevant extracts of the underlying awards.

PN108

THE DEPUTY PRESIDENT: Yes.

PN109

MR NEIL: This was not, for example, one of those cases that one sometimes encounters where employees are told you can go and look at the awards for yourself if you want to. We gave them the relevant extracts so that they could make that comparison. It follows from that that the explanations that were given about those comparisons were all given in a context in which the employees were in a position put there by us, where they could make an informed assessment about the comparison and thus about their position. Now if it please, your Honour, that's what we wish to say by way of supplementing our written submissions on that topic. The subsection (5) of section 180 topic.

PN110

Could we then turn to the - another aspect of the unions' genuine agreement contentions. That is the contention that there was an absence of genuine agreement because; 1) the voting cohort had no experience in black coal mining, were not working in that part of the industry and so had no stake in the agreement or agreements; and 2) the employers were engaged under contracts of employment and were told that approval of the agreements would not affect their contractual entitlements and so for that second reason had no stake in the agreements.

PN111

We take issue with both of those contentions. Turning to the first one. On the evidence it should, in our submission, be rejected. We've dealt with this in writing. There we have said that the fact is that the employees could be required to work in both iron ore and black coal mining and they were told so in the context of the - in the course of and for the purpose of the explanations that they were provided.

PN112

Employees might be required to work all around Australia and in the - all of the classifications contained in the agreements. For that reason this is a circumstance that is distinguishable from One Key, where there is a discussion of this aspect of a genuine agreement and we've dealt with all of that in writing.

PN113

The second contention, the contention that is based on the fact that employees were told their contractual entitlements would not be affected by approval of the agreement should also be rejected. It proceeds on a fundamental misunderstanding of - and the misanalysis of the legal position. What we're about to say on this point is in addition to what we have said in writing in this area. In that sense it's new.

PN114

The starting point is the proposition that where an employee has a contract of employment that entitles them to something more than they're entitled to under an industrial instrument, then the industrial instrument does not of itself operate to diminish or detract from the employees' contractual entitlement. The obvious example, a contract that stipulates for a rate of pay that is higher than that which an industrial instrument provides. It is conventional that the industrial instrument does not of itself operate to diminish or detract from the employees' contractual right to that rate of pay.

PN115

Critically, however, the corollary of that position is not that the industrial instrument has no legal significance for the employee. The unions' arguments in this area all proceed a premise that it does, and that's wrong. The correct position is that a higher contractual provision, for example, for a rate of pay does not obliterate the effect of the industrial instrument. Instead, the right to payment of the rate or the provision of the benefit for which the industrial instrument provides continues to exist and it continues to have legal significance. It's effectively imported into the contract of employment. That happens independently of anyone's intention, of the contracting party's intention.

PN116

May we remind your Honour of two places where - from which that proposition is derived. The starting point is the celebrated decision of Dixon J in the minority here but ultimately upheld in the Privy Council. In Amalgamated Collieries v True, that's behind tab 5 of the bundle. May we invite your Honour to look at that.

PN117

THE DEPUTY PRESIDENT: Yes, I've got that.

PN118

MR NEIL: Page 430 is the starting point of the analysis and the critical aspect that we draw from that is that the - this was an over award - a case of an over award payment, supported by a contract. The starting point of Dixon's J analysis was that the award rate of pay was supported by a statutory right to sue to recover it, precisely analogous with the present statute.

PN119

Then his Honour goes on to deal with the proposition that we have put in about the middle of page 431. Your Honour will see a line that begins on the left-hand side with the word "authorises" in the middle of the page.

PN120

THE DEPUTY PRESIDENT: Yes.

PN121

MR NEIL: Towards the end of the line this passage appears.

PN122

The right to payment of award wages is really a term imported by statute into the contract of employment and imported independently of the intention of the parties.

PN123

Passing over the next few sentences we continue reading here:

PN124

The distinction between expressed promise and obligation imputed by statute relates only to the juristic source of the obligation. It does not touch the character of the sum sued for or the purpose of the proceeding.

PN125

Those passages were later discussed by the High Court in Byrne v Australian Airlines. A copy of that is behind tab 10 of the bundle and the passage which we particularly wish to remind your Honour is on page 420. Perhaps at the start, your Honour will see there's a reference to Amalgamated Collieries v True on page 419 and at the top of page 420 is the passage from Dixon's J judgment of which we're reminded your Honour. Then the plurality go onto say this:

PN126

However, we do not understand Dixon J to be saying in that passage that the term imported by statute into the contract of employment loses its statutory character and becomes incorporated in the contract as one of its terms.

PN127

That's an important passage. That's exactly what's happening here. The terms of the agreements do not lose their statutory character and become merged, effectively merged into the contract of employment and obliterated by it. They also retain their statutory character. Then their Honours go on to discuss the distinction, critical distinction between - observed by Dixon J - between an obligation originating from the statute and an obligation arising from a contract.

PN128

The last passage is important - sentence of that paragraph is important:

PN129

They -

PN130

that is the appellants -

PN131

rely upon the statutory force given to the award and say that because the relationship between the parties is contractual, the provisions of the award become terms of the contract enforceable by use of contractual remedies, as well as the remedies provided by statute.

PN132

It follows from that - those principles that the correct position is that here the agreements in relation to employees with over agreement contracts, if I can put it that way, operate in at least three ways. Have the legal significance for those employees in at least three ways. First, they entrench a statutory right to hire minimum standard terms and conditions for those employees in comparison with the underlying award or awards. A statutory right which as Amalgamated Collieries and Byrne explain retains its significance, legal significance.

PN133

Second, the agreements apply so that those minimum standard terms and conditions will be applicable to the employees as minimum standard terms and conditions, whether they work in iron ore or in classifications in black coal mining and will have statutory support for those purposes. Third, they entrench a statutory right to minimum conditions for new employees which is also a benefit and advances the interests of the existing employees.

PN134

May it please, your Honour, that's what we wish to say by supplementing our written submissions.

PN135

THE DEPUTY PRESIDENT: Sorry, for existing employees, in what sense, just - - -

PN136

MR NEIL: That harks back to the proposition which has its source in the jurisprudence relating - the old jurisprudence relating to industrial disputes. That is the proposition that existing employees have a legitimate interest in the terms and conditions afforded to prospective new employees.

PN137

THE DEPUTY PRESIDENT: But in what sense it creates a standard that won't be undermined?

PN138

MR NEIL: Correct.

PN139

THE DEPUTY PRESIDENT: Yes.

PN140

MR NEIL: And perhaps to tease that point out to its logical conclusion, won't be undermined to the detriment of the - possible detriment of the existing employees.

PN141

THE DEPUTY PRESIDENT: Yes.

PN142

MR NEIL: Another issue is the NER issue. We've dealt with that in our written submissions. What we say about that there is that has been no expansion of the scope of the agreement from that which was notified in the original notice.

PN143

Turning then to the BOOT and NES issues, we've dealt with those at exhaustive length in our written material. All we wish to do here is to emphasise again the true nature of your Honour's task, which is not to conduct a line by line pettifogging analysis, it is to undertake a global assessment and evaluation of the benefits of the agreements in question in comparison to those of the underlying awards. As to any remaining NES issues then as your Honour will have seen we've proffered some undertakings in relation to those which have - of which we're presently aware.

PN144

All the other issues that we'd wish to address we've dealt with in our written submissions and unless your Honour had anything more particularly of us now, and pending hearing what the unions have to say, that's what we'd wish to say by way of supplementing our written material.

PN145

THE DEPUTY PRESIDENT: I suppose the only question I have and you might take this on notice or be able to answer it now is this issue about notice of roster changes. I think your submission is well that's going to occur, just practically someone will have to get notice and those sorts of things. I suppose I'm just wondering about the timeframe. I mean those roster changes don't have to be by agreement.

PN146

MR NEIL: Rather than answer that on the run - - -

PN147

THE DEPUTY PRESIDENT: Yes.

PN148

MR NEIL: - - - that might be something if your Honour would be good enough to allow that we will take on notice and give your Honour something about that.

PN149

THE DEPUTY PRESIDENT: Yes. The other thing was just the issue about the shifts for greater than 10 hours, new start/finish times, new start/finish locations, I think the union raises the point that under the awards there's a majority agreement requirement. Do you say that's really just part of the EBA process so that the majority's effectively agreed to have this ability to - on an individual basis extend shifts beyond 10 hours, change start/finish times and all those things, as a result of the agreement being approved and therefore that's not really a - well either a consideration or a significant consideration in terms of the BOOT because that's a decision that's been made in the EBA itself. The only real difference between the award and the EBA is that under the award each time that happened maybe it's every six months or one year or two years, you'd have to have this majority vote. Whereas the EBA's sort of freed that up from the beginning, if you understand what I'm getting to.

PN150

MR NEIL: If your Honour has the point.

PN151

THE DEPUTY PRESIDENT: Yes.

PN152

MR NEIL: That's the point. We would go so far as to say it is not a consideration for those reasons.

PN153

THE DEPUTY PRESIDENT: Yes.

PN154

MR NEIL: But our alternative submission is if it is, then it goes into the global assessment, it does not carry the weight for which the unions contend. But that's our answer. Your Honour has that.

PN155

THE DEPUTY PRESIDENT: Thank you. That's all thank you, Mr Neil.

PN156

MR NEIL: May please.

PN157

THE DEPUTY PRESIDENT: Mr Crawshaw, did you want to go first?

PN158

MR CRAWSHAW: Can I deal firstly with what my learned friend started with. The primary purpose of our oral submissions is to deal with the applicants' submissions dated 4 April, which post dated our submissions and indeed we wanted to do them in writing, you will recall, and that was opposed by my learned friend. So if my learned friend's so worried about what we might say, his client shouldn't have opposed hearing from us in writing because then we would have known what we were going to say.

PN159

So what you're going to hear from us today, part from replying to any extra oral submissions that my learned friend makes, is what we would have put in writing. Now I take it from what my learned friend says that - and when I - can I just go back a minute. I'd ask you to have those submissions of 4 April handy because that's going to be the main document that I take you to.

PN160

THE DEPUTY PRESIDENT: Yes.

PN161

MR CRAWSHAW: In terms of making my oral submissions. I'll also take - I don't intend to repeat our submissions but if you could have that document handy as well. In terms of - - -

PN162

THE DEPUTY PRESIDENT: Sorry, they're dated 13 March 2019, your submissions?

PN163

MR CRAWSHAW: Yes.

PN164

THE DEPUTY PRESIDENT: Thank you.

PN165

MR CRAWSHAW: Now by reference to the applicants' submissions and when I saw - when I'm going to refer to the applicants' submissions I am referring to those ones that I've just asked you to pull out, the 4 April ones.

PN166

THE DEPUTY PRESIDENT: Thank you.

PN167

MR CRAWSHAW: I take it from what my learned friend says this morning that what's said therein at paragraphs 21 to 23 is withdrawn, because until today the applicants have been taking the attitude that we shouldn't be heard at all, and that's been from the first case - that directions hearing you have. So I take it that's now withdrawn and I don't need to address that matter any further.

PN168

MR NEIL: That would be so. Paragraph 23, I don't press that.

PN169

THE DEPUTY PRESIDENT: Yes.

PN170

MR NEIL: That's inconsistent with what I've said this morning. I've said the opposite.

PN171

THE DEPUTY PRESIDENT: Yes.

PN172

MR CRAWSHAW: So in terms of looking at the applicants' submissions I'd ask you to first go to paragraphs 18 and 19 and you'll see at paragraph 18 they say:

PN173

The Commission should have proceeded to approve the agreements as they leave employees significantly better off than under the awards.

PN174

On its own that's an astonishing submission because it assumes the mere satisfaction of the BOOT is sufficient for approval but I take it it's meant to be read together with paragraph 19, which says that:

PN175

The balance of contention raised by the unions are in effect bootstraps arguments. They seek to point to alleged noncompliance with procedural and other requirements imposed by the Fair Work Act.

PN176

Can I just dispel this notion that what we are raising are procedural requirements, and I can do it - does your Honour have our folder of authorities?

PN177

THE DEPUTY PRESIDENT: Yes.

PN178

MR CRAWSHAW: I think they duplicate in some respects the applicants' authorities but they're much smaller in number, and the One Key decision, the Full Court decision, is at tab 6 of our table - sorry, our book of authorities and you'll see at paragraph 112 in the last sentence the Full Court agreed with the - I'm sorry, it's not the last sentence. If you go to page 49 of the report it's the fourth line down:

PN179

As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form.

PN180

And I won't read to you what follows from there. No doubt you're familiar with this case; it's fundamental of course to an understanding of the jurisdiction that you're exercising. But the idea that these are just procedural or - I don't know what's meant by 'other requirements' in paragraph 19 - are not matters of substance should be rejected. Can I now move in more detail to the submissions in relation to sections 188(1)(a) and section 180(5), namely the all reasonable steps requirement. We deal with that in our submissions at paragraphs 26 through to 34. We deal with it generally at paragraphs 26 to 34 and also paragraphs 39 to 40.

PN181

In summary we submit that the Commission cannot be satisfied that the applicants took all reasonable steps to explain the terms and effect of the terms of the proposed agreement, and we raise four particular areas where the applicant did not take all reasonable steps. Now the first area is the explanation of the coverage clause, the matter my learned friend raised earlier. Contrary to what my learned friend says - and you'll see our submissions on this are at paragraphs 10 to 17 and paragraph 35. That's where we deal with this question and of course those submissions were made before the Full Federal Court decision in CPB.

PN182

But nevertheless they were never about an argument that the clause was unlawful. That wasn't the argument that was put in our submissions. It's never been the argument and in its written submissions and in its oral submissions today, or their - sorry, I keep forgetting there's two. In their submissions and their oral submissions today the applicants seek to erect a straw man argument to say 'Ah, what the CFMMEU was submitting was that the coverage clause is unlawful and look, the CPB Full Federal Court decision says that's not right.' It's a straw man argument. Our argument has always been about the explanation and it's never been answered by our learned friends. Never.

PN183

Rather, in accordance with this straw man stratagem they said 'Oh, we've got to wait for the CPB Full Federal Court decision' and they still haven't answered it. It is no answer to say what my learned friend did today and to take you to those explanations that were given of the coverage clause. That's the very point that we made in our original submissions. The clause is set out - well, it's set out obviously in the applicants' material but it's also the relevant clause 2.2 is set out in our submissions at paragraph 11 if you care to go to it.

PN184

THE DEPUTY PRESIDENT: Yes.

PN185

MR CRAWSHAW: And it reads:

PN186

Any site-specific enterprise agreement that covers the company and any employees working at the specific site(s) will cover and apply to the company and those employees to the exclusion of the agreement.

PN187

Now it was imperative to enable employees to exercise a genuine and informed choice when voting, for that clause in the agreement to be properly explained and that clause in each of the agreements was not properly explained. The explanation provided by the applicants, which my learned friend took you to earlier today, in practical terms said that the provision is to apply to future agreements as there were at the time the agreement was made no site‑specific agreements.

PN188

So there was that element to the explanation, but it's readily apparent that the explanation was misleading and failed to explain the true effect of the clause because the explanation did not tell the employees currently employed by the applicants that a site-specific agreement would not apply to them unless they changed their employment, their particular employment, and that's the only relevant thing that arises out of the CPB Federal Court decision but it's nothing new. It was already the law of the land as it were, as a result of the Federal Court decision in MI&E Holdings.

PN189

Now just to show you that that was the case can I take you to the Federal Court decision, and once again it's also in the applicants' citings but it's more convenient if you go to ours. It's tab 1.

PN190

THE DEPUTY PRESIDENT: Yes.

PN191

MR CRAWSHAW: And if I can take you to paragraph 34 - I'm sorry, tab 1 is the Full Bench decision. Tab 4 is the Full Federal Court decision.

PN192

THE DEPUTY PRESIDENT: Yes.

PN193

MR CRAWSHAW: If I could take you to paragraph 34. The relevant clause in that case is set out at paragraph 34 and it's only the third paragraph that's relevant to this point. It's in slightly different terms but it has the same effect, and when I say the third paragraph it's only the second sentence in the third paragraph that's relevant:

PN194

Any greenfields or project-specific agreement made by the company or joint venture which the company is part -

PN195

I'm not sure, there seems to be a word missing there:

PN196

- and which is approved by the FWC will cover the company and any employees at that particular project site to the exclusion of the agreement.

PN197

Similar terms.

PN198

THE DEPUTY PRESIDENT: Yes.

PN199

MR CRAWSHAW: Or the effect is similar, and it's also in similar terms to the agreement considered in other cases and you'll see that at paragraph 35. The last sentence of clause 3.3 similar to the terms of clause 1.2 of the coverage clause considered in John Holland and similar in concept to the clause in MI&E Holdings, and in terms of the MI&E Holdings clause which we included in our written submissions, but it's reproduced by - or the terms, the findings in MI&E Holdings are reproduced at paragraphs 40 and 41 of this Full Court decision. MI&E Holdings itself was a Full Court decision in which the other judges agree with Buchanan J. But you'll see in particular at paragraph 41 Buchanan J said:

PN200

The Full Bench -

PN201

And he's talking about another Full Bench case obviously:

PN202

- assumed that the intention was that employees would be transferred between sites and potentially into and out of the application of different agreements. It is true that s 58 would not permit that to occur; only one enterprise agreement can apply to an employee in relation to particular employment. However, the consequence is not that cl 2 ... is invalid but rather that the state of affairs assumed by the Full Bench could not be effected. If employees to whom the enterprise agreement applied were transferred to another site the enterprise agreement (and not a new site or project agreement) would apply to them if the transfer was made in the same (and not new) employment. But that left an effective operation for cl 2(b) in the case, as I have said, of new employees at a site or project.

PN203

And that's endorsed by this Full Court. So the situation is with such a clause it can only apply to new employees or to existing employees who go to a site with a site agreement and change their classifications. It doesn't apply and can't apply by dint of section 58 to existing employees who don't change their classification and are employed on a site where there's a new site agreement. Now none of that was explained to the employees. Rather, the explanation suggested to them that if there was a new site agreement that site agreement would cover them.

PN204

In other words it held out the prospect to these employees that in the next four years while the agreement, the original agreement, was in existence they could make a new site agreement at any site where they worked and that would cover them. That's what was misleading and that was our point all along. Now you know from what my learned friend says and you may have read it already, but the Full Federal Court in CPB made a declaration that such a clause wasn't unlawful because it still had some work to do in relation to new employees and in relation to existing employees that change their classification.

PN205

But the Full Court in CPB did not quash the Federal Commission decision which is behind tab 1, and that is because there were other reasons why the Full Bench allowed the appeal in that case and remitted the matter for re‑hearing. And one of those reasons which only serves to illustrate the difference between the point we're taking in this case and the point that our learned friend suggested we were taking, one of the grounds is that the original decision maker in the Fair Work Commission had not heard the union on the question of the explanation, the 180(5) point, and in particular on the question as to whether the coverage clause had been properly explained.

PN206

My client's point in that case - a different division of the CFMMEU, but my client's point in that case was irrespective of the unlawfulness the clause hadn't been properly explained, which is the point here, and you can see that that matter is still live in that case from paragraphs 25 through 27 of the Full Bench decision behind tab 1 which I won't read out to you. But it sets out the argument as to explanation both on the coverage clause and more generally that the union wanted to run, and ultimately you'll see at the end of the Full Bench decision at paragraph 34 that my client in that case is being - the matter has been remitted on other points other than the unlawfulness which was one point of remitter, and that case is in the process of being heard including on this very point.

PN207

It's before - well, when I say this very point, the same point that I'm just ventilating to you in this case is being canvassed before I think it's Simpson C in that case. So as we say in our submissions - well, we set out the explanation that my learned friend took you to at paragraph 17 of our submission and the point is that explanation did not tell the employees that clause 2.2 could not operate to have the effect that during the four year term of the agreement an employee of each of the applicants who had made the agreement and remains employed in the same classification can be covered by a site-specific agreement when the employee is working at a site to which the site‑specific agreement applies.

PN208

That's the point, and it's especially important in this case where there's only two classifications in each agreement.

PN209

THE DEPUTY PRESIDENT: So is there anything in Mr Neil's point about coverage versus application on this?

PN210

MR CRAWSHAW: No, none at all.

PN211

THE DEPUTY PRESIDENT: Yes.

PN212

MR CRAWSHAW: The point is that it cannot apply during the term of the four year agreement to an employee that doesn't change classification. If we're talking just of the voting employees, the employees that made the agreement, they're not going to be new employees. So in terms of explanation to them they should have been told 'The only way that clause can apply to you is if you change your classification. In other words in relation to the production employees it could only apply if you went from being a non-coal person to being a coal person' because at the time of entering the agreement they were all non‑coal. And 'In terms of the maintenance side it could only apply if you went from being' - I think it's a trades and non‑trades dichotomy, which is not likely.

PN213

So these employees have been fundamentally misled that 'Okay, you sign up for this agreement but don't worry, there's the option there during the four years of having a site‑specific agreement that can change all that.' That's the point. The application is only during the nominal term. I'm not saying - after the nominal term the situation might change but I'm putting, I'm saying the explanation should have gone to the four year nominal term. It's not good enough to say 'Oh, well, after the nominal term expires' they could be covered by the site-specific agreement.

PN214

What matters is they weren't told about that four year period. The clause is in fact similar to that considered in the Abigroup case which we've set out at paragraph 35 of our submissions. So it has elevated Gooley J to the judiciary. I'm not sure whether - I think Gooley DP may have been a Commissioner at the time, but putting that error aside you'll see that it's a like situation where she found that the employees were given information about the application of the agreement which was mistaken. The same point.

PN215

The second category of not taking all reasonable steps that we rely on was the failure to explain all material differences between the agreements and the awards, and we deal with that in our submissions at paragraphs 18 to 22 and paragraph 36 and of course in schedule A, which sets out the differences between the agreements and the awards that we say should have been brought to the attention of the voting employees. Now if we go to what the written submissions of the applicants say on this point, firstly could I take you to paragraph 57 and paragraph 57 makes the trite point that there is no statutory requirement in terms of what's set out therein at paragraphs A to B.

PN216

As I say, it's trite to say these are not the statutory requirements. Indeed where there's a pre-existing agreement that applies to the employees in a case - an approval situation or making an agreement situation the award will not be of primary importance. The differences that - the effect of the agreement will depend primarily on the differences between the previous agreement which will no longer apply once the new agreement is made and the new agreement.

PN217

But in a case such as this - and my learned friend only emphasised this by taking you to the High Court authorities on it - in a case such as this where there's no previous agreement that excludes the award - and it's quite common for enterprise agreements to exclude the award - the award provisions will be of primary importance in explaining or in determining the effect of the agreement and it's those differences that have to be explained. You're not going to have - so that's why it's not a statutory test.

PN218

That in a case such as this as I say where there's no pre-existing agreement, we would submit common sense dictates that the effect of the agreement is - well, the effect of an agreement that excludes the award or the awards as these two agreements do is to set up a disparity between what was the previous legal situation, namely the award, and what's in the agreement either up or down; and indeed if you go to the Ditchfield appeal which is behind tab 2 you'll see starting at paragraph 82 or at paragraph 82 that it was a similar situation. In that case there was no extant enterprise agreement. There had been some talk about it in terms of the explanation that was given but it was a truth universally acknowledged in the appeal that there was no extant agreement and the Full Bench said in that case:

PN219

The circumstances in the instant case were that the relevant employees were, at the time of the vote, entitled to the terms and conditions of the Award. The Award, and not the other enterprise agreement with which comparisons were made, applied to the employees ...

PN220

And I'm not suggesting that all of what's in paragraph 83 applies here. At paragraph 84:

PN221

In the particular circumstances of this case, we consider that reasonable steps to explain the terms of the Agreement and the effect of those terms included an explanation of the less beneficial terms of the Agreement compared to the employees' existing terms and conditions under the Award.

PN222

And that's what we say must inevitably be your conclusion in terms of this case, and by the way the LS Precast appeal which is footnoted at footnote 8 of the applicants' submissions doesn't say anything to the contrary. Footnote 8 is said to go to the question of - well, I suppose strictly speaking it goes to there's no statutory requirement. Well, there's no contest about that but footnote 8 if you ignore the opening words might suggest to you - and this appears to be a theme of the applicants' submissions - that you should only look at what might be found to be significant differences between the awards and the agreement, and certainly the LS Precast case doesn't stand for that proposition.

PN223

In that case indeed it was found - in the LS Precast case which as I said is - well, I didn't say. It's behind tab 3. That was a case where the union - and I was there, I was arguing for them - suggested there were eight detriments and in the end the Appeal Bench in that case found that there were no detriments that weren't explained. Indeed the majority of those eight matters - and I won't take you to the detail of them but they're dealt with at - and there was an explanatory statement in that case too. But in that case two of the eight matters, one relating to redundancy which was probably, if we're going to talk about levels of significance the most significant detriment in that it didn't have any provision for looking for work, time off to look for work when you're made redundant.

PN224

Two of those matters were although not in the explanatory statement were the subject of oral evidence, that although not in the explanatory statement they were explained to the employees. So two of the eight went on that basis alone and one of those matters in any event was a small difference in meal allowance, which had changed in the award during the voting period. I must say I didn't press that too hard as anything material. But the footnote in 8 in the appellants' submissions goes to paragraph 75.

PN225

It's worth going to that because it seems to be something that although not in terms in the applicants' submissions they've sought to turn into a general test, and that was talking about the notice arrangements as between the agreement and award concerning shift arrangements. The matter there was there was provision for earlier shifts in the award by agreement and there was also provisions in the agreement for earlier shifts but not before 5 am and the effecting difference was between a 4 am and a 5 am start, and you'll see in relation to that particular detriment the Commission found that or in effect said:

PN226

The failure to highlight the minutiae of differences in notice arrangements as between the agreement and the award, given the overall explanation, does not -

PN227

They didn't consider it to be a failure to comply with the obligation under section 180(5). Now that talk about the minutiae of the arrangements has in effect become a mantra in the applicants' submissions for every difference between the award and the agreement. If you look at paragraph - well, I can give you them. This is something that would have been better in writing but that mantra is found in 79(d), 81(b), 82(b), 85(e), 91(e), 92(c), 99(c), 103, 121(d), 122(c), 123(d), 124(d), 126(b) and 135(b)(ii), and in each of those paragraphs they said 'Oh, well, don't worry about the minutiae.'

PN228

We don't accept that the differences that we draw attention to in those particular matters in the schedule that we've attached to our submission are minutiae, and I'll come back to that. Can I then move to the appeal submissions - the applicants' submissions, sorry, at paragraph 60 and here's where you'll see in paragraph 60 there's reference in point 3 to the fact that, or the assertion that significant benefits, detriments and differences have been explained. Once again there's this use of the word 'significant' and in my submission that's not the test. There's no materiality - and I accept of course they've got to be material. You know, if there's an explanation of something that isn't material, that is something that the Commission might ignore.

PN229

But the test is not whether the difference is significant or not. In the same way as the applicants say 'Well, there's no statutory test' for various things. There's certainly not statutory test based on significance. In fact the point is that the effect of the terms - sorry, the terms and the effect of them must be explained and it doesn't have to be the significant effect of the terms, it's got to be the effect of the terms. So the test is not one of significance. Indeed some of the matters that we've included in the schedule are said in the applicants' own material to be important terms and you can see that in Annexures JB2 - sorry, JB9 the first paragraph. It says:

PN230

Other important terms and conditions of employment such as in relation to leave, consultation, dispute resolution and the management of change will be in the proposed agreement.

PN231

So the notion that they're not significant - - -

PN232

THE DEPUTY PRESIDENT: Sorry, I'm at JB9.

PN233

MR CRAWSHAW: Sorry.

PN234

THE DEPUTY PRESIDENT: It's then - - -

PN235

MR CRAWSHAW: Sorry, I'll go the evidence.

PN236

THE DEPUTY PRESIDENT: Yes, JB9, what page?

PN237

MR CRAWSHAW: I don't have a - does your copy have overall page numbers?

PN238

THE DEPUTY PRESIDENT: No.

PN239

MR CRAWSHAW: No, well, you have to go to tab 9.

PN240

THE DEPUTY PRESIDENT: Yes.

PN241

MR CRAWSHAW: And then five double pages in - are yours double pages?

PN242

THE DEPUTY PRESIDENT: Yes.

PN243

MR CRAWSHAW: And there's heading 'If I am not being paid the salary in the proposed agreement'. It's page 10 in effect, it's page 3 down the bottom.

PN244

THE DEPUTY PRESIDENT: Okay.

PN245

MR CRAWSHAW: So:

PN246

If I'm not being paid the salary in the proposed agreement then what do I get out of it?

PN247

and you'll see in the second sentence:

PN248

While your individual salary will be no less favourable than an annual salary in the proposed agreement, other important terms and conditions of your employment such as in relation to leave, consultation, dispute resolution and the management of change will be in the proposed agreement.

PN249

So at least in relation to that, those conditions, I can't see how the applicants can argue that they're not significant. By the way in relation to that - I'll come back to this - that explanation would probably have been a better answer for my learned friend to give on the question of the salary being different. To say 'Well, the award still has significance in relation to that'. The problem with that, and I'll come back to it, is that elsewhere - and I'll come back to it when dealing with the authenticity point, the section 188(1)(c) point - elsewhere the applicants tell the employees that the terms and conditions in the award don't matter. But I'll come back to that. The point I'm going to here is that at least those conditions must be relevant, and so that contradicts what the applicant does in terms of its written submission, to just seek to dismiss the importance of these and indeed other terms. They're not the only terms.

PN250

THE DEPUTY PRESIDENT: I mean what about there's the documentary material then there was the to and fro? You know, there were meetings and matters - - -

PN251

MR CRAWSHAW: We don't have much - we don't have any evidence about the to and fro. I don't know that there was any. I don't think you can conclude there was any to and fro.

PN252

THE DEPUTY PRESIDENT: Yes, but isn't the evidence that there were meetings and people could raise issues they had and things could be tossed around?

PN253

MR CRAWSHAW: I can check on it but my recollection is that there was no actual evidence of any to and fro. The fact they had meetings and someone could have raised something doesn't mean there was any to and fro at all, and I'll come back to this point in wrapping up on the explanation. But the position is that in terms of we accept it's not as bad as Ditchfield where there was no explanatory statement, but beyond the explanatory statement you don't have any actual evidence as to what went on in terms of what was actually said, and that includes in relation to the employees that weren't at those meetings. Anyway, I'll come back to that.

PN254

But just dealing with this question of whether - the idea that the differences have to be significant, I've already said that's not the test. But assuming it was the test, as I said the applicants are saying these conditions are important and indeed you might ask yourself this. The terms identified in the schedule that we've attached to our submission where there's a difference between the award and agreement - - -

PN255

THE DEPUTY PRESIDENT: Can I just indicate I don't seem to have that schedule.

PN256

MR CRAWSHAW: You can probably ignore it because rather than going to the detail I'm going to hand up an updated one that cross-references the appellants' - sorry, I keep calling them the appellant. It's because I've got it written down in my notes as 'AS' - the applicants' submissions. It cross-references the original schedule with the applicants' submissions and also makes some comments about it. That was one of the documents sent to my learned friend last night that he says he hasn't had the opportunity to see. I don't know why, but I can hand that up now but I'll come to it in a minute. So this is an update from what was schedule 1 and from our point of view you no longer have to look at schedule 1, you can look at this because it's got extra material in it.

PN257

THE DEPUTY PRESIDENT: Thank you.

PN258

MR CRAWSHAW: Do you want to mark that? It's really an aide memoire but it's probably in the same category as submissions.

PN259

THE DEPUTY PRESIDENT: Yes.

PN260

MR CRAWSHAW: I don't suggest it's evidence.

PN261

THE DEPUTY PRESIDENT: No.

PN262

MR CRAWSHAW: It's our submission about documents.

PN263

THE DEPUTY PRESIDENT: I think we'll just call it the aide memoire.

PN264

MR CRAWSHAW: Yes.

PN265

THE DEPUTY PRESIDENT: Yes.

PN266

MR CRAWSHAW: I do have another one, that's all, to come.

PN267

THE DEPUTY PRESIDENT: Okay.

PN268

MR CRAWSHAW: But it's not called an aide - well, it's probably of the same ilk.

PN269

THE DEPUTY PRESIDENT: Yes.

PN270

MR CRAWSHAW: But if you wanted to distinguish the two you might want to mark them.

PN271

THE DEPUTY PRESIDENT: CFMEU table 1, is that - - -

PN272

MR CRAWSHAW: Yes, that's fine.

PN273

THE DEPUTY PRESIDENT: MMEU.

PN274

MR CRAWSHAW: And the point I was about to make is this, that the terms identified in that schedule were obviously significant to the applicants because it chose to include those detriments and differences in the agreement. It was the applicants that have proposed those differences from the award. The applicants must have had a reason for that. The evidence demonstrates that they weren't proposed by the employees, they were proposed by the employer and accepted by the employees.

PN275

The irresistible inference is that when the applicants proposed the agreements with these detriments and differences they made a deliberate decision to include them in the agreements because they saw advantages to themselves in doing so. Hence we say they're significant anyway even if that is the test. Now if I could then go to the applicants' submissions - - -

PN276

THE DEPUTY PRESIDENT: Maybe it's an appropriate time? Come back in 10 minutes?

PN277

MR CRAWSHAW: That's fine.

PN278

THE DEPUTY PRESIDENT: Yes. Thank you.

SHORT ADJOURNMENT [11.51 AM]

RESUMED [12.07 PM]

PN279

THE DEPUTY PRESIDENT: Thank you, Mr Crawshaw.

PN280

MR CRAWSHAW: Thank you, your Honour. If I could now move on to paragraph 61 of the applicants' submissions and here we have another instance of the straw man's argument but this one gets repeated over and over again. The submission attempts to characterise the union's contentions as saying each and every term of the agreement contravenes section 180(5) and indeed when I say it's repeated over and over again, you'll see that it makes its way into paragraph 73. But more particularly it makes its way into the introduction of every paragraph dealing with the individual differences that are dealt with in the CFMMEU's submissions by saying in relation to each of those conditions it's asserted that the applicant failed to take all reasonable steps.

PN281

You'll find that's repeated in paragraphs 76 to 99 and paragraphs 120 to 126. It misstates the union's submissions by suggesting that they say that each and every term must be the subject of the reasonable steps. It also misstates those submissions by suggesting that the failure to explain any one of those terms means that section 180(5) is not satisfied. The CFMMEU's submissions are directed at the terms and conditions as a whole that weren't explained, not any individual one.

PN282

You must consider them as a whole, and it diminishes the argument, trivialises the argument I suggest in that you can look at one difference, dismiss that, move on to the next difference and dismiss that, and that is the effect of those submissions put by the applicant. Paragraph 62 of their submissions, well, it really goes back to the matter that I dealt with at paragraph 57, in relation to paragraph 57 that that's not the statutory test, and you'll see in the footnotes it cites LS Precast, Diamond Offshore and Ditchfield for this proposition without referring to any particular part of those decisions so I can't really know what those cases say on this particular point.

PN283

I wasn't going to read the whole of those cases in search for a proposition that seems somewhat absurd anyway, and I've already taken you to what the Full Bench said in the Ditchfield appeal about the obligation to explain in the particular circumstances of a case where the difference is between the awards and the agreement. And we say, as in that case where the previous conditions were covered by an award, the circumstances of this case require that the obligation to take all reasonable steps to explain the effect of the terms would include an explanation of material differences with the relevant award.

PN284

The appeal submissions - the applicants' submissions at 64 is to the effect that the union's submissions don't contend that the employees didn't in fact understand the agreement or they didn't understand the effect of the terms of the agreement prior to voting for the agreements. This is a misconceived application of the statutory test. The statutory test goes to the explanation of the employer to enable the employees to understand the effect of the agreement, not the actual understanding by the employees. If actual understanding were to be relevant in any event the doctrine in Jones v Dunkel would mean that the applicants should have called evidence to the effect that the employees understood the terms of the agreement. So if they want as the test, they've failed.

PN285

Paragraph 65 of the applicants' submission, here the submissions move to another level and the second sentence says - introduces a test to identify the primary differences between the agreement and the underlying awards. Just as the test isn't one of significant differences the test certainly isn't one of primary differences. Paragraphs 66 and 67 seek to distinguish One Key on the facts, as did my learned friend's oral submissions. This submission invites you to fall into error by ignoring the principles in One Key.

PN286

As was said in the Ditchfield appeal - my learned friend Mr Neil appeared in that as well, made the same submissions, 'Don't worry about the One Key case. You can ignore the principles because the facts are distinguishable.' That failed in the Ditchfield appeal. You can see that at paragraph 76 and 77 behind tab 2. My learned friend actually went to paragraph 77. After saying it could be distinguished from the facts he actually took you to that principle from One Key that was set out in paragraph 77 of the Ditchfield appeal which referred to two aspects of the explanation; one being considering the content of the explanation and the terms in which it was conveyed having regard to the circumstances and needs of the employee, and the other going to the nature of the changes made by the agreement.

PN287

As I said earlier, we accept that in this case there was more evidence of the explanation than in the Ditchfield appeal or in One Key and, as I said in answer to your Honour's question, but not a consideration of the total of the explanation in the evidence because we haven't, to use your Honour's term, to and fro. We don't have evidence as to what occurred there. But in any event even if the explanation is the total subject of evidence - sorry, even if the total explanation is said to be the subject of the evidence you've still got to consider the nature of the changes made by the agreement, and that is what the schedule, table 1 that I just handed up to you, goes to, and the way that's changed the original aide memoire is to set out the applicants' response to each point and where relevant our response to that submission.

PN288

Now those additions are designed to save time, perhaps some boredom, on everyone's part by going through each individual term and condition. But unfortunately it saves time in the hearing and boredom in the hearing but not your Honour's time and boredom in considering the decision because we ask you to fully consider that. And I don't wish to diminish what's in that schedule by orally dealing with only some of the terms and conditions that we say are materially different because we submit they are all material to the question of whether all reasonable steps were taken to explain the effect of the agreements in displacing the awards.

PN289

However I will deal with just one matter that was in the original schedule but not in our submission and that concerns personal leave, because this is also a matter relevant to the BOOT argument and we didn't include it in our submissions on the BOOT. If you go to - we deal with personal leave starting at page 28 and you'll see the point we principally want to make here especially in terms of the BOOT as well is that under the award, the Black Coal Mining Industry Award, employees are entitled to 105 hours of personal leave upon commencement. Under the agreement that entitlement accrues in accordance with the NES.

PN290

The effect of this is that under the NES until the employees have accrued enough service to qualify them for the 105 hours of personal leave they'll be worse off because they'd immediately qualify for that under the award, and obviously that will be significant for employees on short term contracts or those who don't proceed past their probationary period. It's also illustrative of the fact that even if from the point of view of objectively determined a term different to an award might not be considered a detriment overall, some employees might have seen that difference as a detriment and an inadequate explanation might have influenced their vote on the agreement.

PN291

So those employees that expected to be short term would be more influenced by an explanation about that than those that considered themselves to be long term. So it just emphasises the fact that the explanation required in section 180(5) is not to be compared to the BOOT test where you consider it overall. Any individual term and condition that might be a detriment to some employees, even if it's not a detriment to all the employees, might influence the vote and should be explained.

PN292

In this context can I just take you also to paragraph 86 of the applicants' submissions where the applicants deal with the casual provisions, and of course the important point about the Black Coal Mining Industry Award is that it doesn't allow casual employment for production employees whereas this agreement does. And you'll see at paragraph 86 of the applicants' submission that there's reference under point little A to the proposition that:

PN293

Whether casual employment is a benefit or a detriment to an employee will depend upon the individual circumstances and preferences of employees.

PN294

Now there's actually a reference - the footnote's to LS Precast at 79. LS Precast at 79 wasn't dealing with casual employment, it was dealing with different RDO, rostered day off, provisions and in paragraph 79 of LS Precast the Full Bench found - you remember I told you earlier there were eight areas. This was another one that wasn't a subject of oral explanation but the Full Bench in relation to the RDO accrual - and we're only talking about RDO accrual, how it accrued - the difference wasn't so obviously a detriment as to render the Commission's conclusion incorrect.

PN295

That was what was found in LS Precast and on this point we say LS Precast doesn't set a general principle that a difference that might be a detriment to some employees but not to other employees need not be explained. If we are wrong about that, in fact if we are wrong about that being what LS Precast is saying we would submit that LS Precast itself is erroneous. But we say that LS Precast doesn't set up that as a general proposition.

PN296

Now returning to the question of casual employment the applicants may have been better to go to the four yearly review of awards casual employment and part‑time employment case. We've included an extract of that at page - tab 7 of our submissions -sorry, our table of authorities. In the interests of saving paper we didn't reproduce it all but you'll see at paragraph 355 in relation to casual provisions generally, not the black coal mining industry. The Full Bench in that case said:

PN297

Although quantification of the relevant proportions relating to this data is problematic it can at least be concluded that a significant proportion of casual employees, probably a majority of them, are satisfied with their current casual employment arrangements and do not want permanent employment or additional working hours. Equally a significant proportion of casual employees have accepted their current casual employment because it was the only work available, and would prefer permanent employment and/or additional hours.

PN298

As I said these observations were made in relation to casual employment generally. In relation to the Black Coal Award in particular you'll see at paragraph 879 that the Full Bench rejected the proposition that casual employment should be introduced for production and engineering employees covered by the Black Coal Award, not least because of the safety-critical nature of the industry and the current prevalence of full‑time employment.

PN299

The Full Bench found it couldn't be satisfied that simply introducing casual employment on an across the board basis without any restrictions or qualifications that addressed those issues would be consistent with the modern award objective. Now on the face of it that might be said to be consistent with what the applicants' submissions say at paragraph 86(a):

PN300

Whether casual employment is a benefit or a detriment to an employee will depend upon the individual circumstances and preferences of employees.

PN301

So that's why I said they might have been better going to that case. But the point we make is that even if the introduction of casual employment doesn't result in a failure to satisfy the BOOT test there may be employees whose vote on whether to agree to this would be influenced by the capacity under the agreement to have casual employment in the coal mining industry, and it's the significance of that that we say wasn't made clear in the applicants' explanation.

PN302

If we were to extrapolate into a more general proposition, we say where a condition such as casual employment is a benefit or a detriment depending on the individual circumstances and preferences of the employees it should be explained to each and every employee so that they are fully informed in relation to their preferences before voting. Of similar ilk are part‑time provisions. There will be other matters in the schedule, part‑time provision. It's not correct to say, as the applicants do, that protection for part‑time workers including the hours they may be required to work are not material to all employees. There are other examples of conditions that might be particularly relevant to some employees that have not been the subject of adequate explanation, as set out in the schedule, such as reasonable notice of transfer, deductions of overpayments, public holiday provisions, compassionate leave, parental leave.

PN303

And can I just mention at this point - I think this is a matter that was raised in arguendo between your Honour and my learned friend. It's the last matter I want to deal with in terms of the particulars of the differences. Those differences that turn on notice to the employees, the suggestion that - we would reject the suggestion that overall agreement by the employees to the agreement somehow means that a provision in the agreement whereby an individual employee can agree has been adequately explained. We reject that proposition. It just doesn't follow.

PN304

It is clear that you can overall agree to an agreement without even being told that a particular provision is different to the award in terms of whether an individual employee can agree to a change in time of work or the like.

PN305

The third category where we say all reasonable steps were not taken is in relation to the differences between these agreements and the agreements that apply to BHP employees currently directly employed by BHP companies. In other words, it goes to the fact that these employees are going to be supplementary labour to direct employees of other BHP companies who have superior terms and conditions of employment to those set out in the agreement.

PN306

We deal with this in our submissions at paragraphs 23, 24 and 37. Our argument in summary on this matter is that despite being employed in the same group of companies, there is not so much as a mention in the applicant's explanations that the employees of current BHP companies at the work sites where employees employed by the applicants will be working are employed on superior terms and conditions. Never mind the detail of the conditions, it wasn't that - they weren't even told about that.

PN307

And it's an obvious proposition that this is a real effect of the agreement in that these employees will be receiving differential treatment in terms of their terms and conditions despite working side by side.

PN308

Can I just take you to a High Court authority which one of my learned friend's High Court authority's deals with a matter concerning dispute finding, but it makes the point that I'm trying to make here about the employees working side by side with different terms and conditions is a real effect. The case I want to take you to is behind tab 5, Metal Trades Employer's Association case. The concern, the vexed issue then of dispute findings in relation to employers that didn't have any union members or that never employed union members, that was the issue.

PN309

But the simple point I wanted to take you to in terms of the effect of employees working side by side is found in the judgment of Dickson J, and in particular at the top of page 427 where his Honour said:

PN310

It is not difficult to conceive of a demand made upon their actual employers by a body of employees acting in concert insisting that they shall not take into their employment workmen who receive less wages or less favourable conditions of employment than they do. The causes of such a demand, no doubt, would include the fear that the maintenance of existing wages and conditions was threatened by the competition of non-unionists. But differential treatment of employees working side by side may provoke an unrest which is based on feelings more instinctive than reasoned but none the less real and intense.

PN311

We rely on that just as - it's probably stating the obvious, but it's the obvious proposition that a real - if you're looking at the effect of the terms in this case, one real effect is that the employees - in the circumstances of this case where these employees will be working side by side with these other employees, they're not just a general labour hire company that go all over the place, they're dedicated to BHP sites - the real effect is that they will be working side by side with these employees on superior terms and conditions, and that should have been explained to them.

PN312

The applicant says at paragraph 114 that our contention would mean any labour hire firm would have to explain the differences with any site that it worked at. That's not our contention. Again another straw man argument. Our submissions does nothing of the kind suggested in paragraph 114. It is not about employees of any contractor, it is confined to employees of a BHP company dedicated to working alongside employees of other BHP companies.

PN313

You can see the circumstances in this case where that arises. These applicants don't pretend that they're anything else other than BHP. In fact, they pretend they are BHP - well, probably don't pretend. In terms of looking at these effects, you don't need to be worried about the corporate veil, there can be an effect in relation to employees and the way they might vote irrespective of any corporate veil.

PN314

Can I just take you to some references in the statements to where the applicant's employees are in effect treated as BHP employees. Firstly in the affidavit of Ms Veaney, annexure 2, you can see that it's made on - purportedly from BHP, annexure - both the front page, and if you go to the back of the second page; similarly JV3, once again BHP; JV8 has got the BHP stamp at the top; JV10 comes from Mr Hoare, the BHP employee relations manager; JV11, similarly you can see the BHP logo down the bottom. I won't take time.

PN315

The same exercise can be repeated with annexures RB1, RB3, RB8, RB9 and RB10. And we have some extra material, documents from the - printed off from the applicant's web site that also demonstrate that the applicant's employees are being told that they are in effect BHP employees. I've got three documents from the applicant's web site to tender.

PN316

THE DEPUTY PRESIDENT: So we just mark that as a bundle, CFMEU 1.

EXHIBIT #CFMEU 1 BUNDLE OF DOCUMENTS

PN317

MR CRAWSHAW: And there's also - and also can I take you to attachment B to our submissions you will see under the frequently asked questions:

PN318

What is the difference between OS and BHP? There is no difference. OS is a key component of BHP's strategy. Is OS still BHP? Yes.

PN319

So in those circumstances we submit that one of the effects of the agreement was to bring into place a disparity between the employees of the applicants and other BHP employees despite the fact that they're all identified as BHP personnel.

PN320

The fourth category that we raise in relation to the failure to take all reasonable steps is dealt with in our submissions at paragraphs 25 and 38. The applicant replies to those at paragraphs 120 to 126. The points we're raising here are matters separate to the failure to explain the differences with the awards or the failure to take all reasonable steps to explain the differences with the awards. We submit that each of those points raised is relevant for an understanding of the obligation or the term and the effect of the term.

PN321

The applicant states that the CMFFEU's assertions should be rejected because the relevant terms were variously not material, didn't warrant further explanation, were themselves sufficiently clear, and would be unreasonably burdensome to expect more. As we explained in our submissions, these are not sufficient to displace the obligation to explain the terms and effect of the agreement.

PN322

These matters are also dealt with in the aide-memoire, but can I just go to one example, as I say, again at the risk of not undermining the significance or the materiality of the other matters. You will see at paragraph 122 of the applicant's submissions that long service leave was a matter which they say they were not to explain more than what is set out in the explanatory notes. All the explanatory notes essentially say is that employees are entitled to long service leave in accordance with the applicable legislation.

PN323

And the explanatory notes also set out that employees in black coal mining are subject to a specific industry scheme, but they don't present any explanation of the circumstances which will impact on an individual's entitlement to the provisions of that scheme. You've got to bear in mind - and I will obviously go into this more after lunch in relation to the authenticity point - the voting cohort have no experience in or familiarity with the black coal mining or the black coal mining industry long service leave scheme.

PN324

They were in effect starting from scratch when it came to understanding the operation of that scheme, so being employed under these agreements may see them move in and out of coverage of the scheme, thus having a significant impact on their entitlements to long service leave. The inter-relationship between the classification of employees under these agreements, their shifty engagement by the applicants, and the impact this may have on their long service leave entitlements should have been explained to the employees irrespective of any question of differences with the award.

PN325

For the balance of their submissions on these points the applicants rely on the submission that an explanation of the term of the agreement is the same as an explanation of the effect of that term. That is not the case. The point of section 185 is that it goes both to the terms of the agreement and the effect of the terms, they're two different things, as is made clear in the Ditchfield appeal at paragraph 79.

PN326

In terms of the content and terms of the explanation, I think I've already taken you to One Key paragraph, 112, not for this point, but paragraph - I took you to 112 for the point that these matters were matters of substance. One Key at 112 also says that in order to reach the requisite state of satisfaction, that section 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees, and the nature of the changes made by the agreement.

PN327

In relation to these employees, in relation to the production and engineering employees, the applicant says it took these steps: it held briefing sessions where the NERR was distributed; it held further briefing sessions where the information packs were distributed, they included sections of the relevant awards and the explanatory notes; and that those notes were read through in their entirety; and also that the employees were given an opportunity to ask questions.

PN328

The evidence both in the F17 and the statement of Ms Veaney, she makes a statement in relation to the production agreement, says that four employees were unable to attend the further briefing sessions; three of these employees had the purpose of the explanatory notes explained to them via telephone, with the material being later delivered to them; one received a text and an email in relation to the explanatory notes, we don't know what the content of that was.

PN329

We move over to the maintenance employees. Once again the applicant makes a similar submission and produces similar evidence, this time through Ms Bowler, where initial briefing sessions with 11 of the 16 employees. I should give you - the applicant's submissions deal with the production employees, these facts, at paragraphs 25 to 31. In relation to the maintenance employees the facts are in paragraphs 35 to 41.

PN330

So the maintenance employees held initial briefing session with 11 of the 16 employees; held one on one briefing sessions with an undisclosed and unparticularised number of maintenance employees; held further briefing sessions with 10 of the 16 voting employees in attendance, and one of the phone, where the employees were provided with explanatory materials and those materials were read through; and that the five remaining employees were contacted by phone message in lieu of the further briefing session and text message, with only two of those employees replying to confirm they had received the material. That's at paragraph 41(b) of the applicant's submission.

PN331

These are said to amount to all reasonable steps to explain the terms and effects of each of the agreements. And as I said to your Honour earlier, the only content you have before you is to consider, as far as the explanation is concerned, is the substance of the explanatory notes. The statements filed in this matter provide no more substance than those notes. There's no evidence of the content of the one on one briefing sessions or any questions which may have been put by employees or answered by the applicant. There is no other evidence of the content of any explanation.

PN332

We've set out elsewhere how these notes fail to adequately explain the terms of the agreement. So really that's it, the to and fro, which is how your Honour framed it, is irrelevant, and you can't really go beyond what's in the explanatory notes in terms of considering the explanation.

PN333

If I could just go to the particular circumstances of the voting employees which also must be taken into account under section 180(5), and then I will come to the section 188(1)(c) point after lunch if that's convenient.

PN334

THE DEPUTY PRESIDENT: Yes. Just on this point, how far does an employer have to go in terms of bringing evidence about explanations at such meetings? Isn't it normal on an F17 to say, "We distributed this material. We then held a general meeting. Some people could attend, some couldn't. Some were on holidays, a couple were sick", or whatever it is.

PN335

I mean, in me being satisfied, do I need to - does the Commission need to get evidence about notes of meetings and who said what and how much detail was explained, or can I just accept that if the applicant says there was a meeting to discuss an EBA and there's no evidence that that didn't occur, then there would have been some discussion of the EBA, and by necessity that would have involved some explanation of the terms of the agreement.

PN336

MR CRAWSHAW: When you ask me how far they've got to go, I suppose the easy answer is they've got to go far enough to satisfy you that all reasonable steps were taken. In this case they go no further in terms of their evidence than the explanatory notes and saying "we read them". That's as far as it goes. The fact that they had meetings is neither here nor there in terms of the explanation. If you go to One Key at paragraph 112 again the Full Court said on page 49, second-last sentence of the paragraph:

PN337

In order to reach the requisite state of satisfaction with section 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees.

PN338

Here the only content you have is the explanatory notes and the evidence that it was read out, that's as far as it goes. So all I'm saying is on the basis of what's before you in this case, you can't rely on the fact that there were meetings. You can't - as I said earlier, there's no evidence of to and fro. I don't want to try and set down a general rule as to how far you have to go. It's like all these things, it depends on the circumstances of the case. But all you've got to consider is what you have before you in terms of the actual explanation. It's simple, it's the explanatory notes, that's it.

PN339

THE DEPUTY PRESIDENT: Just in relation to these employees who were away, I think one of them was in Hawaii or something, the reasonable steps are different for those types of employees, aren't they, in the sense that the employer puts on a briefing session, if people can't come for whatever reason, then they may put on another one, but otherwise they might just say, "Well, you were on holidays. Here's all the material. If you want to talk about it, let's do that, otherwise ‑ ‑ ‑ "

PN340

MR CRAWSHAW: There's no evidence that anyone was on holidays as far as I'm aware.

PN341

THE DEPUTY PRESIDENT: I thought there was an email to someone in Hawaii.

PN342

MR CRAWSHAW: One person was on holiday.

PN343

THE DEPUTY PRESIDENT: Yes. The reasonable steps in relation to that sort of person, or someone who's in hospital or otherwise absent are going to be different, aren't they, to the general persons who are on site?

PN344

MR CRAWSHAW: Well, I was going to go to that point later. But in relation to - putting aside the person who was on holiday, we would submit that a reasonable step would have been to actually have - I mean, we weren't talking about a great number of employee. A reasonable step would have been to have an individual discussion with those employees that for whatever reason didn't go to the meeting; or in terms of those that couldn't be contacted by phone, to try and contact them by phone on multiple occasions, or at least a second time.

PN345

In the circumstances of this case, given the small number of voting employees, it's submitted they would have been reasonable steps. And one can't say that they weren't - that it wouldn't have mattered because one of the agreements was only approved by a majority of one, and three employees were not known to - in relation to that, three employees were not known to the applicant to have engaged in the explanation process at all.

PN346

THE DEPUTY PRESIDENT: Do you think the evidence cuts both ways in the sense that you're telling me all I can rely on is the documentary material, but on your case you don't have any evidence either that what was and wasn't explained; you don't have an employee who says, "This wasn't explained to me." So you're, I suppose, being the contender without any evidence about what was said in those meetings either. And therefore where does it sort of end up?

PN347

MR CRAWSHAW: I think I will have to agree with what Mr Neil said earlier on, this isn't an arbitral proceeding where we've got any obligation to call employees. As I also said earlier, if we're talking about the understanding or the question of the employee's understanding, or being explained to, the obligation ‑ ‑ ‑

PN348

THE DEPUTY PRESIDENT: No, really just what happened at those ‑ ‑ ‑

PN349

MR CRAWSHAW: ‑ ‑ ‑ the obligations under the - we don't have any duty to call evidence, so ‑ ‑ ‑

PN350

THE DEPUTY PRESIDENT: I'm not really talking about from an evidence point of view, it's about my satisfaction. You're asserting I can't be satisfied in my administrative role, but there's - you know, there's also these meetings that have occurred where it's said that the agreement was explained. So I'm just trying to get to where - how far I take your submission that I can't really rely on - I mean, you say there's no evidence in that sense, but then you see that ‑ ‑ ‑

PN351

MR CRAWSHAW: I'm not saying there's no evidence, I'm saying ‑ ‑ ‑

PN352

THE DEPUTY PRESIDENT: Well, no evidence of what was discussed.

PN353

MR CRAWSHAW: ‑ ‑ ‑ you got the facts that have been put before you, and I'm just addressing those facts.

PN354

THE DEPUTY PRESIDENT: Yes.

PN355

MR CRAWSHAW: That's all I'm addressing. And you invited me - I was addressing the - so the more general point is that the facts show that the explanation didn't go beyond what was in the explanatory notes, so in that sense in a general sense the satisfaction rises or falls - or I suppose more appropriate terms, occurs or fails on the basis of what is in those explanatory notes.

PN356

If we move beyond that to the circumstances of the individual employees, as I've submitted, we submit in relation to those employees that did not have the face to face explanation, all reasonable steps were not taken. And what I'm saying is that those employees could have been - given the small number, those employees could have been met individually. In relation to the phone calls, more than one phone call could have been made.

PN357

THE DEPUTY PRESIDENT: But there's no obligation to hold things up because someone is on leave generally, is there?

PN358

MR CRAWSHAW: The obligation is to take all reasonable steps, with the emphasis on all - all reasonable steps. Not just some reasonable steps, all reasonable steps.

PN359

THE DEPUTY PRESIDENT: Is that an appropriate time? I would like to come back at ‑ ‑ ‑

PN360

MR CRAWSHAW: I am going to go more generally to the particular circumstances of the employees. That's relevant for the 185 - I won't be long on that, but 185 point, and the 188(1)(c) point, which is the area that I want to address after lunch.

PN361

THE DEPUTY PRESIDENT: Yes. Come back at 2.15.

SHORT ADJOURNMENT [1.07 PM]

RESUMED [2.17 PM]

PN362

THE DEPUTY PRESIDENT: Sorry, Mr Crawshaw, I think there's just some other appearances that wants to be announced.

PN363

MS Y ABOUSLEIMAN: Ms Abousleiman, I appear on behalf of the CEPU.

PN364

THE DEPUTY PRESIDENT: Thank you very much.

PN365

MS ABOUSLEIMAN: The CEPU won't be making any further submission, we will just be adopting the CFMEU and the AWU.

PN366

THE DEPUTY PRESIDENT: Okay. Thank you.

PN367

MR CRAWSHAW: Thanks, your Honour. As I said, I just want to go to some particular circumstances that should have been taken into - I think you should take into account for the purpose of section 180(5) other than those that I've already gone to. And as I also said before lunch, these are also relevant to the section 188(1)(c) point, and I will elaborate on them somewhat when dealing with that.

PN368

First in terms of the circumstances, the voting employees all worked in production and maintenance for the relevant applicant. As I said, the only substance we know of the explanation they received was what is in the explanatory note and the read-through the explanatory note. We would submit that the efficacy of that method of explanation to an audience of mine workers would be limited and would not, without something more tailored to that audience, constitute an explanation in an appropriate manner.

PN369

Secondly the absence of any evidence of bargaining is a relevant circumstance, and with it attaches certain needs. It may be reasonable for an employer to provide a more detailed explanation of the agreement where there is no bargaining representative. The absence of a bargaining representative is a matter that was - it's actually referred to in the explanatory memorandum dealing with this provision. I will just give you a reference to that, it's at paragraph 742. The explanatory memorandum to the Bill introduces it, it says:

PN370

The absence of a bargaining representative may be a relevant circumstance to be considered in terms of the individual circumstances of the employees.

PN371

Also of course - and this is also relevant to the section 188(1)(c) point, the voting employees did not work in black coal mining. The needs of these employees for a discount explanation of the terms and conditions that would otherwise apply under the Black Coal Mining Industry Award is significantly enhanced given the absence of any familiarisation with the particular industrial context of that award.

PN372

It is true that the applicant told the employees in the context of the agreement question and answers document, which is at annexure JV2, JV9 and RB9, that they will be provided with the necessary information and training in the event that they work elsewhere in what's called the minerals Australia portfolio, which presumably in this context is talking about working in coal mining. But there is no explanation of the extensive history and specificity in industrial standards in black coal mining.

PN373

We submit that it's not good enough in terms of an explanation and the circumstances to be considered for my learned friend to say, as he did this morning, "Well, they were told they could be required to work in both industries", and that that's somehow distinguishes this situation from One Key. The fact of the matter is they still, whatever - they weren't told any more than what I've just said, and the fact is that they have no experience in coal mining. As I say, I will come back to that shortly because I'm now going to deal with section 188(1)(c).

PN374

We deal with that in our written submissions at paragraphs 41 to 52. The first point to be made about section 188(1)(c) is that the absence of an adequate explanation can also go to this point, and that can be seen in the One Key decision at paragraph 142. If you go to the One Key decision behind tab 6, and One Key at 142 there's a general description. I think we might have included this in our written submissions. There's a description of the broad terms of 188 - it was just 188(c) at that point in time. But you see at the end of that paragraph that if the Full Court was:

PN375

Wrong to conclude that the Commission is bound by section 180(5) to consider the content of the employer's explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was "genuinely agreed to" having regard to 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by paragraph 188(c), but was a mandatory consideration.

PN376

So that's the first point to be made about 188(1)(c), but our argument on 188(1)(c) doesn't stop there because the other point we make really goes - is the moral authority and authenticity argument. You will see in our written submissions at paragraph 47 we reproduce the passage from the CFMEU v ARC case in 1999 and the judgment of Wilcox and Madgwick JJ about the question of moral authority and authenticity. That was approved, as you can see from the footnotes, that was approved in One Key at paragraphs - I think it's paragraphs 147 and 156.

PN377

And so the question of lack of experience in the other workplace is relevant to this point as well. At paragraph 150 the appellant seeks to distinguish the facts of One Key and indeed the facts of the Full Bench decision in KCL; and again as it did with the 180(5) point, ignores the principles in those cases. We submit the principles in those cases apply equally in a case such as this.

PN378

The fact, for example, there were 16 employees in the maintenance agreement is relatively not important in terms of any attempt to distinguish the facts. And we would also suggest that the attempt to distinguish that the two industries, on the basis that they are similar, is also not a relevant distinguishing point. I promised you another table, and we have made a table on the differences between the Black Coal Mining Industry Award and the Mining Industry Award 2010.

PN379

THE DEPUTY PRESIDENT: I will call that CFMMEU table 2.

EXHIBIT #CFMMEU 2 TABLE

PN380

MR CRAWSHAW: Obviously two wholly different awards apply. In the modern award process the Commission has made the decision that they warrant separate modern awards. Key features of the Black Coal Award which don't exist for those engaged in classifications under the Mining Industry Award include the absence of casual employees working in production roles, which we've already discussed; different provisions for the accrual of personal leave; and provisions for paying out leave on termination of employment; an industry-specific redundancy clause, including significantly different retrenchment payments; accident pay provisions; and a 35-hour working week. That's not to mention the entirely separate statutory long service leave scheme applying to those working in the black coal industry.

PN381

Of course just going outside award matters, there's a separate regime for safety also in the coal mining industry. It's a more - rather than "follow the Robens" type model that the Occupational Health and Safety Act goes to, it's a more regulation-specific legislation applies in coal mining.

PN382

You will see at paragraph 143 that the applicant quotes from the KCL case at paragraph 36 in terms of trying to set it up for distinguishing from the facts of this case. But I note that they don't go on to deal with paragraph 37, which actually deals with the point I'm making here about ‑ ‑ ‑

PN383

THE DEPUTY PRESIDENT: Sorry, what paragraph are you at in terms of those submissions?

PN384

MR CRAWSHAW: I'm at paragraph 143 of the applicant's submissions. You see there they quote from KCL, the Full Bench decision in KCL at paragraph 36.

PN385

THE DEPUTY PRESIDENT: Yes.

PN386

MR CRAWSHAW: But if you go to our authorities where we included KCL, which is behind tab 8, you will see that paragraph 37 actually makes the point that I've just been submitting, the different award provisions. You will see at paragraph 37, does your Honour have that?

PN387

THE DEPUTY PRESIDENT: Yes.

PN388

MR CRAWSHAW: In talking about the black coal mining industry, the Full Bench there says:

PN389

The award covering that industry, the Black Coal Award, contains a range of provisions which are specifically tailored to the unique circumstances of that industry. An example of that is the industry-specific redundancy scheme.

PN390

So there can be no question in our submissions that in terms of a relevant similarity - and here we're talking about explaining or making an agreement in relation to conditions that are contained in the two awards - that they are not similar, there are significant differences. So that point of distinction in our submission goes by the by.

PN391

The other point of distinction that's sought to be made with KCL is on the supposed basis that the employees of these applicants had some stake in the agreements that was in some way special. This is despite the fact - and I adverted to this earlier, this is also relevant to the question of the promise in relation to maintaining salaries in the contracts.

PN392

The context of that is that if you go to JV9, page 1, the covering letter that set out all these documents that were said to constitute the proper explanation of the agreement - do you have that, the email from Mr Hoare dated 14 September?

PN393

THE DEPUTY PRESIDENT: Yes.

PN394

MR CRAWSHAW: You will see the fourth paragraph says to the employees, and this is obviously the communication that's most likely to be read:

PN395

To be clear, nothing changes to your terms and conditions and pay when this agreement is voted on and approved. These are guaranteed to you in your contract of employment.

PN396

That's what the employees were told. Similarly with the maintenance agreement, the word processor spat off the same covering letter. If you go to RB9 ‑ ‑ ‑

PN397

THE DEPUTY PRESIDENT: Yes, I see that.

PN398

MR CRAWSHAW: ‑ ‑ ‑ you see the third paragraph is in exactly the same terms.

PN399

THE DEPUTY PRESIDENT: Yes.

PN400

MR CRAWSHAW: I took you earlier to the fact that in the explanatory note there was something different said, namely that, "Your salary won't change, but there's other important terms and conditions." The fact is, as I said, if anything was going to be read, it would be the covering letter. But the fact - at the very least you have a confusing statement to the employees about the overall effect of the agreement vis-à-vis their contract of employment.

PN401

And if you just read the covering letter an employee would be forgiven for taking the attitude, "Oh well, nothing to see here for me. Move on. Move on, I'll vote for it. Who cares?" If they went to the detail of the Q and A they might say, "Well, hold on, it does affect me; not in salary, it affects other important conditions." But if that was all they had and that's all the evidence that they had, we don't have any evidence of it being clarified, at the very least there would be a confused workforce.

PN402

That's relevant to whether - because that was one of the points in KCL, and it was distinguished, the fact that the employees - sorry, I withdraw that. That was one of the points in BGC, which is the case that the applicant relies on at paragraphs 144 to 146.

PN403

The BGC Full Bench, as you will see from the applicant's submission, distinguished the KCL Full Bench on the basis that the employees there were, while allowed to retain their current - while the voting employees there were told they were to retain their current terms and conditions, in contrast to future employees who would be on the agreement, the Full Bench said, "Well, that was justifiable in the circumstances." There was in effect moral authority and authenticity to the agreement because the employees also had a stake in the business going to an agreement with lower terms and conditions than previously applied even though it wasn't going to affect them.

PN404

That wasn't the decision at first instance. The first instance Beano DP found that the fact that the employees actually voting would not be affected by the terms and conditions meant that there wasn't genuine agreement for the purpose of section 188(1)(c). The Full Bench in that case overturned it on the basis, as I said, that the employees had a stake, but the stake those employees had, as found by the Full Bench in BGC, was that BGC was a company who was in severe financial straits and had put forward the proposition to the existing employees that if they didn't go to an agreement for future employees with lesser terms and conditions, that they would in effect go out of business.

PN405

That was the stake that the Full Bench found in BGC that's relied on at paragraphs 144 to 146. There's no such distinguishing feature in this case. The employees in this case who, as I said, at least on the one version were told that they wouldn't have their terms and conditions affected at all, had no more than the normal stake employees have in a business. It wasn't like BGC at all, this was in effect a start-up enterprise rather than an existing enterprise that was in financial straits.

PN406

Alternatively we say - so we say BGC itself can be distinguished. Alternatively we say with respect to BGC it wrongly recasts the frame of reference to the employer's business interests, whereas section 188(1)(c) focuses exclusively on employees, it says nothing about employers. So we submit the correct frame of analysis endorsed and applied in One Key and KCL was and should be applied, that is the actual effect of an enterprise agreement on employees and whether the employees would be subject to the terms and conditions provided by the agreement.

PN407

If I can next move to 156 of the applicant's submissions. It's said there - so there are three categories of factors that we rely on in this authenticity and moral authority argument: first the lack of experience of the employees in the black coal mining industry; secondly the lack of real interest of the voting employees in the outcome of the voting on the agreement; and the third matter, which is what's dealt with at paragraph 156 of the applicant's submissions, is the absence of bargaining. I've already gone to that in part dealing with the particular circumstance of the individual employees.

PN408

Once again, and contrary to what is suggested in the applicant's submissions, those three categories are not to be seen as disparate. We're asking you to look at all of them to consider the circumstances and whether there was genuine agreement for the purpose of section 188(1)(c). The applicant would seek you to consider them separately. And so we do submit, as is suggested by the applicant at page 156, that the absence of any evidence of bargaining is a relevant factor, but as I said, it's accumulative with the other factors.

PN409

The quote from LS Precast in subparagraph (b) of the applicant's paragraph 156 is not actually the quote - it's cited as a quote from the Full Bench, but if you go to the Full Bench decision you'll see that's actually a quote from the decision at first instance. That decision is behind tab 3, and if you go to the appeal decision behind tab 3 at paragraph 106 you'll see - does your Honour have that?

PN410

THE DEPUTY PRESIDENT: Yes.

PN411

MR CRAWSHAW: Because this 188(1)(c) point was an argument that was put on appeal in LS Precast. The Commissioner's decision is set out at paragraph 106, page 27 of the decision, and you'll see over the page at page 28 paragraph 26 of the original decision is set out, and in the third sentence the Commissioner's original decision says, "It is not a barrier to the making of an enterprise agreement that in future a larger group of employees will be covered by its terms." Do you see that?

PN412

THE DEPUTY PRESIDENT: Yes.

PN413

MR CRAWSHAW: "Nor is it necessary in each case for an enterprise agreement to be made with at least one employee in each classification." So, I mean, it's a relatively trivial point, I suppose, but I'm just pointing out that it wasn't the Full Bench that said that, it was the Commissioner at first instance.

PN414

The Full Bench in dealing with this point concluded at paragraph 108 that on a fair reading of the Commissioner's written reasons she had had regard to the arguments put by the unions on appeal. To see what those arguments were and what the Full Bench said she took into account you've got to go back to paragraph 101, and you'll see the dot points there - lack of experience of the work and place of performance of the work, moral authority and authenticity, prematurity of employment, whether the employer had the capacity to provide genuine consent.

PN415

The Full Bench doesn't say they're irrelevant factors, they're saying they're factors that the Commissioner has taken into account, and of course the difference between this case and the LS Precast case, the LS Precast case was a case where the agreement was confined solely to the concrete products industry. It wasn't an agreement that was going to be made by employees who were currently working in one industry and working in another industry. Rather, the argument there in LS Precast was that the concrete products yard wasn't yet operating. It was in a sense a prematurity argument, which is a different argument to what's here.

PN416

So if I could just then also return to the question of the absence of bargaining, or the absence of evidence of bargaining point that we make here as well as in relation to the individual circumstances of the employees for the purpose of section 180(5), that was a clear matter that was taken into account in One Key when dealing with the section 188(1)(c) argument. If you go to the One Key decision behind ‑ ‑ ‑

PN417

THE DEPUTY PRESIDENT: Six, is it?

PN418

MR CRAWSHAW: Tab 6, yes, and can I take you to paragraph 149 - or starting at paragraph 149 and going through to paragraph 153. You'll see in those paragraphs that the legislative context in which section 188(1)(c) came into existence and its relationship to the objects of the Fair Work Act and the international norms concerning fairly collective bargaining were clearly in focus at paragraph 149. The court considered, indeed concluded, that these norms can inform the legislative purpose of section 188(1)(c) and that the Fair Work Act exhibits a clear preference for collectively over individual bargaining.

PN419

So as I said before, there's an absence of any evidence to collective bargaining, or to use your Honour's term earlier in the day, to and fro, in terms of what's been put forward in this case, and that's another matter that we say is to be taken into account not only under section 180(5) but also in considering whether there was otherwise genuine agreement for the purpose of section 188(1)(c).

PN420

So in summary, what we're saying is the presence of bargaining and an active participation by employees in that process can facilitate genuine agreement in an agreement‑making context, but the converse is also true. It follows that an absence of bargaining is one of several grounds which go to whether an agreement was genuinely agreed and is a factor which must be considered in the present case.

PN421

The Aldi High Court decision referred to by our learned friends in their submissions is dealt with in the One Key decision at paragraph 152. The Aldi High Court decision was not focused on the protective provisions under the Act such as 188(1)(c) but on the mere capacity to make an agreement with the employees in that case who had not yet started work, if I remember rightly. They're our submissions.

PN422

THE DEPUTY PRESIDENT: Thank you, Mr Crawshaw. Who wishes to speak next? Is it Mr Crawford or Turner or ‑ ‑ ‑

PN423

MR TURNER: Thank you, Deputy President. As the represent for the AMWU I want to thank you for the opportunity to provide oral submissions. As we have throughout this matter, we intend to limit our submissions to the Operations Services Maintenance Agreement, which for the purpose of these submissions I'll hereinafter refer to as the agreement.

PN424

We share the view with the other unions here today that this agreement is not for approval. Senior counsel for the CFMMEU has provided very comprehensive submissions as to why the agreement should not be approved and I don't intend to traverse points that senior counsel has already touched on, but I hope to at least supplement those submissions and also to address some discrete matters that are raised in the applicant's response to our own written submissions. I hope you'll forgive me if I do touch on some of the points that Mr Crawshaw has already referred to.

PN425

It's the position of the AMWU that the Commission can't be satisfied for the purposes of section 186(2) of the Fair Work Act that the proposed agreement has been generally agreed to by the employees covered by the agreement, that the terms of the proposed agreement do not contravene section 55 of the Fair Work Act and that the proposed agreement passes the better off overall test.

PN426

In some detail we've addressed that in our written submissions, but by way of supplementing this, turning to the first matter, the issue of whether the proposed agreement has been generally agreed to, we contend that the Commission can't be satisfied the applicant has taken all reasonable steps to explain the terms of the agreement to give effect of those terms in an appropriate manner, taking into account the particular circumstances and needs of the relevant employees so as to satisfy section 180(5) of the Act and thereby section 188(a)(i) of the Act.

PN427

We also submit that the Commission cannot be satisfied that there are no other reasonable grounds for believing that the agreement has not been generally agreed to by the employees so as to meet the requirements of section 188(1)(c)

PN428

The parties have previously referred to the decision of One Key in their submissions. I'd intended to take you to paragraphs 115 and 116 of that decision. They're at tab 1 of our brief, but to avoid, I guess, re-treading territory we've already touched on today, really the key passage there is that the agreed purpose of that provision, section 180(5), is to enable the relevant employees to cast an informed vote, to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

PN429

Section 188(1)(c) in turn is also intended to capture those matters not caught by paragraphs (a) and (b), and it is well established that the provision of misleading information or an absence of full disclosure are matters which logically bear on the question of whether the agreement of relevant employees was genuine.

PN430

The only evidence of the applicant that is before the Commission today in respect of the bargaining process for the agreement is the F17 statutory declaration, the statement of Rebecca Bowler, which has been filed. If the evidence of Ms Bowler is to be accepted, it appears that five unspecified employees were absent from the initial briefing session conducted by the applicants on 11 September 2019.

PN431

At the initial briefing session employees were handed what are referred to as the initial maintenance agreement documents. Despite attending the session, Ms Bowler provides no insight into what was discussed there. One on one discussions were then apparently held with an unspecified number of employees on site about the agreement by Ms Bowler on unspecified dates following that initial briefing session. No information is disclosed about the content of these discussions save that they were undertaken apparently in order to ensure employees understood the agreement.

PN432

It's also asserted by Ms Bowler that she is aware that a Mr Leon Dodd also had one-on-one discussions with an unspecified number of employees on unspecified dates, where again no information is disclosed about the content of these discussions. We note that no statement by Mr Dodd is in evidence before the Commission and that Ms Bowler has not identified the source of this information.

PN433

I know, Deputy President, that you've asked the question in respect of the relevance of the explanation that may or may not have been provided at these meetings and I hope to elucidate that after continuing through the evidence of Ms Bowler.

PN434

It's unclear whether these one‑on‑one discussions were conducted with employees who were unable to attend the initial briefing session or were simply conversations with employees who had already participated in the initial briefing session - perhaps a mixture of both. The evidence provides no clarity as to whether the five employees who were unable to attend the initial briefing session in person then spoke to Ms Bowler.

PN435

At the further briefing sessions, which is a second round of briefing sessions, which were not intended in person by six of the 16 employees who eventually voted on the agreement, Ms Bowler asserts that the employees were provided with the maintenance explanatory materials and the purpose of each of those documents was explained and the whole of the maintenance explanatory note was read aloud.

PN436

At paragraph 19 of her statement Ms Bowler claims that informal discussions were held by her with an unspecified number of employees on unspecified dates about the maintenance agreement. Again, we have no information of the content of these discussions from Ms Bowler.

PN437

By the time of the vote it appears quite clear from her evidence that Ms Bowler is unable to confirm that three of the employees who did not attend the further briefing sessions had received and considered the revised agreement which they were to vote upon and the revised explanatory note purporting to explain the terms of that.

PN438

In this respect we further observe that the applicant asserts in the final sentence of - and I'm referring here to their submissions of 4 April 2019, to paragraph 41(b), if you have a copy of that in front of you, Commissioner. It's asserted there that of the five employees unable to attend the briefing session in person or by phone, three did not respond and two of the employees confirmed that they received the maintenance explanatory materials and had no questions about the agreement.

PN439

With respect, there is no evidence that's been adduced to the effect that two of the employees confirmed that they had no questions about the agreement. Ms Bowler's statement does not assert this. The F17 does not either.

PN440

To the extent that the submission is premised on the text messages which were provided by two employees in response to text messages - and here I'm referring to attachment RB11 of Ms Bowler's statement, and I'll just read aloud the responses that were received. While one of these states, "No concerns from my end" - I believe that's the second text message - the other simply states, "Okay. Thank you very much for that." It does not positively confirm or state that that individual had no questions about the agreement.

PN441

At paragraphs 175 to 194 and 216 of its submissions in response to our own, the applicant in reliance on the decision of McDonald's Australia Pty Ltd - and that's at tab 2, just simply for your convenience, Deputy President. I don't intend to take you through it in depth, but the applicant relies on it.

PN442

It contends for the obligation in section 180(5) is not expressed as an absolute requirement to ensure particular outcomes are achieved. It only requires that reasonable steps are taken to ensure that the terms and conditions are explained to employees and asserts that the applicant has taken those steps which are required.

PN443

As per the finding of Deputy President Asbury in Falcon Mining Pty Ltd, which is the decision at tab 3 of the bundle that I've handed to you, when addressing section 180(5), and the reference there is paragraph 157:

PN444

There must be consideration of the reasonableness of the steps taken by the applicant -

PN445

- sorry -

PN446

- must be considered in the context -

PN447

PN448

- allow me to rephrase that:

PN449

Consideration of the reasonableness of the steps taken by the applicant must be considered in the context of the size of the employer, its resources, including available mechanisms and expertise, the roles and qualifications of those who provide the explanation and whether the capacity or the ability of employees to receive an explanation is impacted by issues such as language, literacy, access to electronic media, hours of work, rosters, the location at which work is performed, travel to and from remote locations or the availability of employees to receive an explanation.

PN450

And I know, Deputy President, you've touched on that in your comments already. What is apparent from Ms Bowler's evidence is that the Commission cannot be satisfied that these reasonable steps were taken where no further, more comprehensive or more accurate explanation of the terms of the agreement appears to have been made to the relevant employees beyond the documentation that was issued to them and which is in evidence before the Commission, including the explanatory note.

PN451

There I'm referring back, Deputy President, to your earlier comments about the contents of the various steps that the applicant contends were taken. In the absence of any evidence about that, what we're left with is the documentation, and we assert that it was inadequate and was in many instances misleading.

PN452

For the reasons that have been comprehensively articulated by senior counsel for the CFMMEU today, we submit that that explanation was inadequate, inaccurate and misleading. At least three employees of the applicant did not attend the further briefing session nor provide any confirmation of receipt of the maintenance explanatory materials prior to the vote occurring.

PN453

In circumstances where there are only 16 workers the applicant claims were eligible to vote, we say that it's also material that six employees, or more than one third of eligible workers, did not attend the applicant's briefing sessions in person, and of course as senior counsel has noted, in the event there was only a one‑vote majority for the approval of the maintenance agreement.

PN454

Moreover, I wanted to observe that on the evidence before the Commission no relevant inquiries appear to have been made by the applicant as to the particular circumstances of the employees eligible to vote on the agreement beyond those referred to at paragraph 2.7 of the form F17 where the applicant claims it confirmed that none of the employees were under 21 years of age or were from non‑English speaking backgrounds and so concluded that no employees required any special or additional assistance.

PN455

Critically, there's no evidence before the Commission that the particular circumstances of the employees having no bargaining representative, being a category of persons whose circumstances and needs should be taken into account in providing an explanation, was taken into account by the applicant in delivering its explanation.

PN456

In such circumstances, we submit the applicant should have delivered an explanation to employees which was comprehensive, which was accurate and which was not an explanation characterised by material omissions and errors. An employer with the resources of the applicant should and was required to do better in order for you to be satisfied that section 180(5) has been satisfied.

PN457

Without exhaustively re‑treading the deficiencies in the explanatory note, which we have, in any event, set out in our written submissions, in response to the submissions of the applicant of 4 April 2019 I wanted to make a few discrete points.

PN458

In paragraph 202 of the applicant's submissions they touch on the explanation in respect of schedule 1 of the agreement. We say that that explanation as it appears in the documentation that's been issued to employees was manifestly inadequate.

PN459

The explanation provides no clarity or insight into how the figures set out in schedule 1 will change if these employees' rosters change save that a new figure will be calculated using the same principles used to calculate the annual salary. The fundamental missing piece of the applicant's explanation, of course, is the principles that it is relying upon to calculate pay.

PN460

I wanted to refer very briefly to the decision of Karijini - no doubt I'm mispronouncing this, Deputy President, but Karijini Rail Pty Ltd. It was a very recent decision of Deputy President Beaumont. That appears at tab 4 of the bundle that I've handed up, and specifically to paragraphs 149 and 150, and if I can read aloud from that decision:

PN461

An employee's entitlement as far as base rates of pay, penalties and allowances are concerned are fundamental considerations for any employee. Compliance with section 180(5) necessarily entailed a description of how the base rate of pay was made up and how it compared to the rates of pay and allowances in the award.

PN462

It may be the case the penalties are compensated for by the provision of a loading. Again, that required an explanation as to how that loading was arrived at. This is particularly so when the employer having used such form of rates would have in any event determined the rates, allowances rolled in, and loading and then assessed whether the agreement passed the BOOT. As it is, the form F17 requires that the employer indicated it thinks the agreement passes the BOOT. While the two employees were involved in negotiations for the agreement, it is not at all apparent that an explanation in the aforementioned terms was given during negotiations or thereafter.

PN463

It is the AMWU's submission that without any fulsome explanation of these principles, the relevant employees were simply left in the dark as to how their annual salary was arrived at and were not in a position to properly assess whether this left them better off than under the relevant industrial awards. I'm simply referring to that decision on that discrete point, Deputy President, but I think that's an apropos statement.

PN464

In respect of paragraphs 205(c), 207(b), 209, 210(c) to (e) and 211(b) of the applicant's submissions, it essentially relies on a similar point. It claims that it is appropriate to characterise a number of clear detriments for employees when compared to the award as differences, because whether or not they will be a benefit or detriment will depend on the individual work, and it's cited in support of this proposition the decision in CFMMEU and the Australian Workers' Union v LS Precast.

PN465

Senior Counsel for the CFMMEU has in some depth taken you through why that case is not apposite on that point, but we also think the decision is distinguishable from the clauses of the agreement that we have expressed concern about, in that allowing an employer the unilateral right to direct employees to transfer to another location, as is conferred by clause 6.3, and where no such right exists under the relevant awards, is manifestly a detriment irrespective of the personal circumstances of any employee.

PN466

The existence of no equivalent clauses to clauses 23.9 and 23.10 of the Mining Award which relevantly provide rights to employees in respect of the taking of annual leave where excessive leave has accrued and allowing for the taking of annual leave over an extended period, the absence of these in the agreement is manifestly a detriment where the relevant award clauses provide a benefit to employees and this is not then reflected in the agreement that is being - that that employees' agreement is being asked for.

PN467

We dispute the characterisation of paragraphs 21.11(1) to (4) and (8) that we have not properly characterised these matters as detriments. We believe they are detriments. That's simply a joinder of issue in respect of the points raised by the applicant.

PN468

Moreover, allowing the employer the unilateral right to require employees to work on public holidays, and potentially all public holidays at clause 10.1 of the agreement, is, we say, manifestly a detriment compared to clause 27.5 of the Black Coal Mining Industry Awards, which provides that work will not be carried out on two public holidays in any 12‑month period, particularly in circumstances where the agreement otherwise arrogates to the employer the sole discretion to set rosters.

PN469

Accordingly, we say these matters should properly have been explained to employees as detriments but were mischaracterised by the applicant as mere differences.

PN470

At paragraphs 203, 208, 213 and 214 of the applicant's submissions, the applicant concedes what are clear errors in the explanatory note but nevertheless seeks to characterise these as minor procedural or technical matters.

PN471

In circumstances where the relevant employees did not have the benefit of a bargaining representative, we submit these errors are significant and that the employees are almost wholly reliant it not wholly reliant on the explanation that has been provided to them by their employer as to the meaning and effect of the terms of the agreement. Such errors entail, we say, that the explanation that's been provided was inaccurate or was likely to mislead those who received it.

PN472

A further matter of concern in respect of the accuracy and clarity of the explanations provided to the employees unable to attend the further briefing sessions concerns the representations that were made to them by Michael Hoare in six emails sent by him on 2 October 2018 which have only become apparent to the AMWU after reviewing the statement of Ms Bowler.

PN473

Senior counsel for the CFMMEU has made some submissions on this point. I had intended to take you, Deputy President, to those six emails, but suffice it to say the sentence which is problematic is the statement that, "To be clear, nothing changes to your terms and conditions and pay when this agreement is voted on and approved. These are guaranteed to you in your contract of employment." As senior counsel for the CFMMEU has noted, that is contradicted by the terms of the explanatory note.

PN474

It's also contradicted, we say, by the submissions that have been made by the applicant, in that at paragraph 155(b) on page 52 of the applicant's own submissions, in addressing the submission that - I won't go into detail about that, but they reiterate, it seems, the orders in the explanatory note. They say in the second sentence of that paragraph:

PN475

Importantly, it was explained to employees that while their individual salary would be no less favourable, the annual salary in the then proposed agreements, other important terms and conditions of their employment will be in the then proposed agreements.

PN476

Similarly, senior counsel for the applicant in his opening address this morning, in addressing, I guess, the issue of authenticity and the issue around the higher salaries that were paid to the employees who voted on the agreement, reaffirms that nevertheless the employees will be receiving the benefit of the terms under the agreement, and in effect a submission that their terms and conditions will be materially changed and impacted by the approval of an enterprise agreement even though their salary may stay the same.

PN477

Of course, that express statement by Mr Hoare to the effect that "Your terms and conditions will not change - your terms and conditions and salary will not change" - is plainly incorrect and would mislead, we submit, an employee who's received that documentation.

PN478

Having regard to the decision in One Key and to the passage that I've referred to previously, this obviously begs the question how could these workers cast an informed vote and how could genuine agreement be reached in these circumstances?

PN479

The provision of material information which has the character of being misleading or an absence of full disclosure are relevant as to whether the Commission can be satisfied that there are no reasonable grounds for believing that the agreement has not been genuinely agreed to by employees for the purposes of section 181C.

PN480

We have otherwise identified in our written submissions that the employees who did vote on the agreement appeared to have no stake in that agreement, in that, as I've noted, they were paid at rates in excess of what was payable under the agreement and had an express guarantee that their pay would not be lowered to the minimum set out in the agreement. That the employees had no stake was of course reflected in the complete absence of bargaining or negotiation for the agreement as well.

PN481

The applicant would have the Commission simply dismiss these material considerations which undermine the authenticity of the agreement that has been reached. We say that these are reasons which should prevent the Commission from being satisfied that there are no reasonable grounds for believing that the agreement has been genuinely agreed for the purposes of section 188(1)(c).

PN482

By reason of these matters alone, namely that the Commission can't be satisfied that the enterprise agreement has been genuinely agreed to by the employees for the purposes of section 186(2)(a), the agreement should not be approved.

PN483

We've otherwise submitted the agreement does not meet the requirements of section 186(2)(c) as it contains terms which contravene section 55 of the Fair Work Act, and section 186(2)(d), that the agreement doesn't pass the better off overall test.

PN484

In respect of the terms which we assert contravene the National Employment Standards, we've already addressed those in our written submissions. The applicant has simply denied the contention. We rely on those written submissions as to why we assert that remains the case.

PN485

Finally, though, just addressing the better off overall test consideration, the CFMMEU has handed up to you a very detailed updated schedule which very aptly identifies the differences between the agreement as drafted and the relevant award clauses. It also expresses the CFMMEU's positions on why those clauses may be disadvantageous to the workers by comparison, and respectfully we think that is an accurate summation of the position and is relevant in the global analysis that you're required to conduct to determine whether or not the agreement leaves workers better overall.

PN486

I do wish to address some just quite discrete matters raised by the applicant in response to our written submissions.

PN487

In respect of paragraph 243 of those submissions where we say it remains of concern that workers were asked to vote for an agreement where their pay could be varied with a roster change using what I described as the same principles used to calculate the annual salary, where these principles were not articulated to them, it begs the question how will employees be able to interrogate whether they are being paid in accordance with this clause of the agreement, notwithstanding this clause of the agreement, if they are not privy to the principles on which their employer is setting their pay?

PN488

By contrast there is, of course, certainty and clarity in the pay and the basis of pay under the relevant awards which the agreement does not reflect. Again, of course, we say that this matter also goes to the adequacy of the explanation that's been provided to employees prior to the vote, and I've addressed that previously.

PN489

At paragraph 245 of their submissions of 4 April 2019 the applicant contends that eligibility to participate in an incentive program is plainly a benefit for employees that does not exist in any form in the awards. Here they are referring to clause 7.5 of the agreement.

PN490

We disagree. No right or benefit is conferred when the express words of the clause simply provide that employees may be eligible be eligible to participate in an incentive program. There is no entitlement to participate in an incentive program conferred by that clause. The incentive program itself is not incorporated into the agreement. There is not a benefit to employees and this clause is, in effect, we submit, hortatory.

PN491

In respect of paragraph 246, the applicant asserts that clauses 14.2 and 14.3 are beneficial irrespective of the definition of the terms "primary caregiver" and "secondary caregiver". We say this is plainly not so where the terms may be altered wholly at the applicant's discretion. As the operative terms are defined in company policies, any beneficial impact of the provision of parental leave could be rendered nugatory by a decision made wholly at the discretion of the applicant. Again, this is not a clear benefit to employees and is best described as a neutral consideration.

PN492

In respect of paragraph 247, the applicant in essence claims that as annual leave and personal leave will, on its case, be paid at higher rates than would otherwise be paid under the award, then the entitlement is more beneficial. We say that the loss in particular of the entitlement of workers under the Black Coal Mining Industry Award to the payment of accrued personal leave on termination is a very serious one.

PN493

It is a significant benefit conferred only on workers in a very few industries, including black coal mining. The removal of such an entitlement, which is of significant value, and value which increases with each year of service of an employee, should be a significant consideration in determining whether the agreement meets the BOOT, and for these reasons and those expressed by the CFMMEU today and otherwise set out in the written submissions that have been put before the Commission, we say that the Commission can't be satisfied that the agreement passes the BOOT.

PN494

For these reasons, and those that have been previously expressed, we say the Commission should not approve the application that is before it. Thank you, Deputy President.

PN495

THE DEPUTY PRESIDENT: Thank you, Mr Turner.

PN496

MR CRAWSHAW: Can I just raise one matter that really arises from my learned friend's submission? I think I may have suggested to you that annexure JV9 and RB9 applied to all the employees, whereas, as you'll see from paragraph 15 of Ms Bowler's statement and paragraph 17 of Ms Veaney's statement, it only applied to employees that were sent the document in the mail.

PN497

THE DEPUTY PRESIDENT: Yes.

PN498

MR CRAWSHAW: So in relation to the other employees that had face‑to‑face meetings, as it were, they didn't get that covering letter that said, "None of your terms and conditions will be affected." So the other employees would simply have been told, as in the explanatory note, their salaries would remain the same but there were some important terms and conditions covered by the award.

PN499

That doesn't make any difference to our submissions, firstly because some of the employees were misled and secondly because in KCL at paragraph 36 the Full Bench, in saying there was no stake in the agreement's rates of pay, relied merely on the assurance that the rates of pay would remain the same rather than any assurance about terms and conditions.

PN500

THE DEPUTY PRESIDENT: Yes, thank you. Mr Crawford?

PN501

MR CRAWFORD: Thank you, your Honour. Your Honour, we support the submissions of the other unions and rely on our written submissions. The only brief point I want to reiterate is there's no evidence that the minimum rates of pay that could apply under these agreements were actually explained to employees. It's clear that the two - for example, in the production agreement, there are two annual salary rates cited, but it is also clear that it is entirely possible that lower salary rates could apply if roster changes were implemented.

PN502

There is to some degree a safeguard, in that clause 2 of the schedule refers to employees at least being paid according to the roster under an award that applies, and there's no evidence that employees are actually informed about what the actual remuneration might be under the relevant award for a particular working arrangement.

PN503

We say obviously the rates of pay in an agreement are a fundamental core feature and it's imperative that employees are fully informed about the minimum rates payable under an agreement ahead of them voting in terms of whether to approve it or not and there is simply no evidence whatsoever that employees would have been aware of the minimum rates of pay while under this instrument. I can't work it out here today. I assume you can't either, and that is not sufficient for the agreement to be approved. Thank you.

PN504

THE DEPUTY PRESIDENT: Yes, thank you, Mr Crawford. Mr Neil?

PN505

MR NEIL: We would begin with the observation that we are now going to proceed upon the footing that we've heard everything that all of the unions have to say by way of contradicting our position that both agreements can and should be approved. So that's the firm foundation, we hope, for what we are now going to go on to suggest, and if there's any reservation about that on the part of any of the unions then we would respectfully suggest that now is the time to say so. Now is the time to say so.

PN506

THE DEPUTY PRESIDENT: Yes.

PN507

MR CRAWSHAW: My only reservation is my learned friend raises a new point that we haven't dealt with. For example, in relation to the coverage clause, they've never dealt with our argument. Never.

PN508

THE DEPUTY PRESIDENT: Yes.

PN509

MR CRAWSHAW: So if he comes along with some new argument we're not going to, as it were, say - I mean, strictly speaking, my learned friend's in reply. We know that can be as broad as it can be long, but if a new point is raised we're not going to say that we shouldn't be heard on it or we won't be heard on it. It will be obviously a matter for you.

PN510

THE DEPUTY PRESIDENT: So is it just that point on the ‑ ‑ ‑

PN511

MR CRAWSHAW: I don't know what else my learned friend's got in mind. So bear in mind the history of this. We started with a submission in chief that did nothing more than answer your Honour's questions.

PN512

THE DEPUTY PRESIDENT: Yes.

PN513

MR TURNER: So your Honour can be forgiven for thinking I was the applicant this morning, because we were the ones that first put in a substantive submission, and my learned friends then do a substantive submission in reply to ours, which is why we asked to be heard, because they'd raised a whole lot of matters that had never been ventilated before. So if my learned friend's asking for a carte blanche, I'm not giving him it.

PN514

THE DEPUTY PRESIDENT: Yes.

PN515

MR NEIL: I don't think my learned friend was really listening to what I said. I want to know whether there are any other grounds of opposition to our contention that the agreements can and should be approved. The arguments in support of those grounds are a different matter, but what we want to know is the universe of what we have to address and that presumably - and in respect of which your Honour will want our assistance.

PN516

THE DEPUTY PRESIDENT: Yes.

PN517

MR NEIL: There's a difference between the grounds and the argument.

PN518

THE DEPUTY PRESIDENT: Yes.

PN519

MR CRAWSHAW: I accept that.

PN520

THE DEPUTY PRESIDENT: So is it correct, Mr Crawshaw, there might potentially, which we can deal with at a later time, be something further to be said on what's currently in issue?

PN521

MR CRAWSHAW: No, we don't have any other grounds other than those ventilated in our written and oral submissions.

PN522

THE DEPUTY PRESIDENT: Yes. I think the other unions are in the same category.

PN523

MR NEIL: Then upon that foundation there appear to us to be two possible ways forward, or next steps, and might we seek your Honour's assistance as to how - or as to which of them would assist you.

PN524

THE DEPUTY PRESIDENT: Yes.

PN525

MR NEIL: One course would be for us, now that we've heard all of the grounds and what's said about them, to address all of them. Another would be to focus on those about which your Honour has a particular concern.

PN526

The latter course, to our mind, commends itself as directed towards the task that your Honour must discharge, the exercise being, or that task being, ultimately to decide whether your Honour is satisfied as to the various matters that the Act requires, and our part in that, as well as the part of the contradictors, is to put such information before your Honour and material before your Honour as will assist your Honour to come to an ultimate conclusion as to whether you can or can't be satisfied as to those matters.

PN527

It may, we speculate, with respect, be of more assistance to your Honour to have our assistance on those points that really concern you, but other than that we have no preference for either of those two courses. The ultimate criterion is what would best assist you.

PN528

THE DEPUTY PRESIDENT: Yes. Is that something that you'd be coming up with from the applicant's perspective as to what the issues are you think I should be dealing with or would it be something that's by agreement?

PN529

MR NEIL: I hadn't really thought it through beyond that point. We can certainly propound a list of what appear to us to be the issues, but if we were to do that then perhaps a comprehensive reply is the most appropriate course.

PN530

THE DEPUTY PRESIDENT: Yes.

PN531

MR NEIL: I wouldn't want to miss anything that your Honour was ultimately concerned about.

PN532

THE DEPUTY PRESIDENT: Yes. If I go away and identify the issues, though, it's obviously then a question of whether potentially I mischaracterise them, which would then lead to further delay, I suppose.

PN533

MR NEIL: Let us not then take that step, and perhaps a comprehensive reply on our part in one form or another is the best and surest way forward.

PN534

THE DEPUTY PRESIDENT: Yes.

PN535

MR NEIL: When I say a comprehensive reply, what we would have in mind is putting before your Honour that which we think will assist your Honour to resolve the grounds that have been raised against us, against the approval of the agreements, in addition to what your Honour already has, bearing in mind, of course, as we submitted at the beginning, this isn't an adversarial, arbitral exercise, it's an exercise in the Commission informing itself.

PN536

THE DEPUTY PRESIDENT: Yes. So would that involve getting the transcript, you having a timetable to ‑ ‑ ‑

PN537

MR NEIL: Correct.

PN538

THE DEPUTY PRESIDENT: ‑ ‑ ‑ put that together and coming back, do you think would assist, or just the ‑ ‑ ‑

PN539

MR NEIL: We would think now is ‑ ‑ ‑

PN540

THE DEPUTY PRESIDENT: Sufficient in writing.

PN541

MR NEIL: Yes.

PN542

THE DEPUTY PRESIDENT: Yes.

PN543

MR NEIL: Today has provided the opportunity for perhaps a more iterative process, where your Honour's been able to ask questions of the interests represented. Our submission would be something in writing is probably now the most efficient way forward.

PN544

THE DEPUTY PRESIDENT: I suppose it's then a question of where it ends, in that Mr Crawford will want another go and then ‑ ‑ ‑

PN545

MR NEIL: Yes, there can't be an infinitely regressive series of responses and so on.

PN546

THE DEPUTY PRESIDENT: Yes.

PN547

MR NEIL: Although we would not, for the reasons that we submitted earlier, suggest that practice and procedure of an arbitration would be important into this process, there must be an end to it. One interest must have the last word, and it would be conventional for that to be the applicant.

PN548

We would accept, just as would ordinarily apply in other proceedings, if we raise some new, hitherto unsuspected argument in what might loosely be called a reply, well, then it would be open to your Honour to allow some of the other interests to address it. We wouldn't want to be heard against that proposition, but essentially we would be the end. Your Honour's heard everything.

PN549

THE DEPUTY PRESIDENT: Yes, other than maybe that CPB contractors point or something.

PN550

MR NEIL: Yes, that could be so, and of course it would always be open for your Honour to say, looking at whatever we deliver - to say to us or to say to any of the other interests, "Well, I'd like to know more about this or that." That would always be open.

PN551

THE DEPUTY PRESIDENT: Yes.

PN552

MR NEIL: And going back to the starting point, that we would not want your Honour to be, your Honour in fact should not be, in a position to say, "I cannot form the requisite state of satisfaction as to this or that thing because I don't have a particular piece of information before me", without giving to the affected interest the opportunity to provide it. That's the ultimate criterion, in our submission.

PN553

THE DEPUTY PRESIDENT: Yes.

PN554

MR NEIL: We think the course that your Honour has followed, if we may, with respect, is calculated to achieve that objective and we hope that what we're suggesting is so too.

PN555

THE DEPUTY PRESIDENT: Thank you. Mr Crawford, what do you ‑ ‑ ‑

PN556

MR CRAWSHAW: That's Mr Crawford. I'm ‑ ‑ ‑

PN557

THE DEPUTY PRESIDENT: Sorry, Mr Crawshaw.

PN558

MR CRAWSHAW: I can see your Honour's looking at me.

PN559

THE DEPUTY PRESIDENT: What do you think about that approach?

PN560

MR CRAWSHAW: I think it's somewhat ironic, to be euphemistic, that after putting submissions to your Honour that we don't do written submissions, which we would have done instead of our oral submissions today, that my learned friend now wants to do written submissions, but I suppose it's - I've never been one that's thought my advocacy is so great orally that it's better than what I put in writing, but if my learned friend wants to do written submission, so be it, as long as your Honour doesn't give way to the natural inclination to read written submissions rather than transcript. We can't suffer from that.

PN561

THE DEPUTY PRESIDENT: No, well, I've got to look at both, but do you want a timetable that includes a reply, or at least further submissions from you on this CPB contractors point, or you want ‑ ‑ ‑

PN562

MR CRAWSHAW: No, I'd rather it be ‑ ‑ ‑

PN563

THE DEPUTY PRESIDENT: Just on ‑ ‑ ‑

PN564

MR CRAWSHAW: I suppose what I should say, if we're talking about timetables, is that this written submission process should occur fairly promptly, seeing as my learned friend could have started his reply today - obviously doesn't want to, but it should occur fairly promptly. But in terms of - I'm not asking you to factor in any further participation by us by way of submissions.

PN565

THE DEPUTY PRESIDENT: You can just apply at the relevant time.

PN566

MR CRAWSHAW: We'll just await to see what comes in these written submissions and take it from there. If we seek leave to put further submissions we'll do so.

PN567

THE DEPUTY PRESIDENT: I think our standard transcript order is about five days' turnaround so it'd be how long you need after that.

PN568

MR NEIL: Would your Honour excuse me for just one moment?

PN569

THE DEPUTY PRESIDENT: Yes.

PN570

MR NEIL: Just having regard to various considerations of availability and so on, might we ask until 26 July?

PN571

THE DEPUTY PRESIDENT: Yes, that's fine by me. I'll issue a direction that the applicant file any further submissions by 26 July. There will be liberty to apply generally.

PN572

MR NEIL: Would your Honour be good enough to substitute the words "written material" for "submissions", or "submissions or other written material"? I haven't formed a view about this, but we may wish to put some material of another kind before you.

PN573

THE DEPUTY PRESIDENT: Statements or something?

PN574

MR NEIL: Something of that kind.

PN575

MR CRAWSHAW: That may change our attitude. I'm not asking for anything, but I'm just forewarning if there's going to be further statements put on, for example, that may be a reason why we want to put further submissions and/or make another application to cross‑examine, because you'll recall, like our proposal for written submissions, our proposal to cross‑examine was opposed, and your Honour acceded to that application.

PN576

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Crawshaw. Is there anything further? Thank you. I'll adjourn.

ADJOURNED INDEFINITELY [3.38 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT OF JASMINE VEANEY DATED 04/04/2019. PN48

EXHIBIT #A2 STATEMENT OF REBECCA BOWLER................................ PN52

EXHIBIT #CFMEU 1 BUNDLE OF DOCUMENTS....................................... PN316

EXHIBIT #CFMMEU 2 TABLE........................................................................ PN379