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Fair Work Act 2009                                       1057105






s.437 - Application for a protected action ballot order


"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)


Stramit Corporation Pty Limited


Stramit Building Products Erskine Park Enterprise Agreement 2016




3.38 PM, FRIDAY, 28 JUNE 2019


THE COMMISSIONER:  Good afternoon.  I'll take the appearances, thank you.  From Sydney?


MR J RABAUD:  If it pleases, my name is Rabaud, initial J, of the AMWU, and with me is Miller, initial G, also of the AMWU.


THE COMMISSIONER:  Thank you, Mr Rabaud and Ms Miller.  Yes?


MR M MINUCCI:  If the Commission pleases, my name is Minucci of counsel and I seek permission to appear with my learned friend, Ms McCartney of Clayton Utz for the respondent.


THE COMMISSIONER:  Thank you, Mr Minucci and Ms McCartney.  Mr Rabaud, do you oppose leave being granted?


MR RABAUD:  No objection, Commissioner.


THE COMMISSIONER:  Thank you.  I might get you in Sydney to remain seated, thank you.  That's best for the microphones.  I'll afford you the same, Mr Minucci, but you might wish to stand.


MR MINUCCI:  Unfortunately it's a barrister's habit, Commissioner.  Yes.


THE COMMISSIONER:  Habit, yes, very well.  I'll grant leave pursuant to 596(2)(a) of the Act.  So will there be cross-examination of witnesses today?


MR MINUCCI:  As we understand it, yes.  The parties have exchanged emails in respect of that and as we understand it that each of the witnesses will be cross-examined, albeit it may be relatively short certainly from my end.


THE COMMISSIONER:  So it's Ms Carovska, is it, in Sydney?


MR RABAUD:  Yes, Commissioner.


THE COMMISSIONER:  Yes.  And Ms Smith in Brisbane?




THE COMMISSIONER:  All right.  Any other preliminary issues that you wish to draw to my attention?


MR RABAUD:  No, Commissioner.


THE COMMISSIONER:  So where is Ms Smith then?


MR MINUCCI:  Ms Smith is just here, Commissioner.


THE COMMISSIONER:  Should she leave?


MR MINUCCI:  She should, yes.


THE COMMISSIONER:  Yes, all right.  Thank you, Ms Smith, we'll call you in.  Yes, thanks, Mr Rabaud.


MR RABAUD:  I'd like to call Jacqui Carovska of the AMWU.


THE COMMISSIONER:  Let's have you - no, Ms Carovska, let's have you sit where we can see you.  You can't see me, can you, Mr Rabaud?


MR RABAUD:  No, I can't, Commissioner.


THE COMMISSIONER:  Let's see if we can get a third camera happening so that you can see me.  Ms Carovska, if you can stand my associate will administer an affirmation.


THE ASSOCIATE:  Can you state your full name and address, please.


MS CAROVSKA:  Jacqueline Carovska, (address supplied).

<JACQUELINE CAROVSKA, AFFIRMED                                      [3.41 PM]

EXAMINATION-IN-CHIEF BY MR RABAUD                                [3.41 PM]


MR RABAUD:  Thank you, Commissioner.

***        JACQUELINE CAROVSKA                                                                                                         XN MR RABAUD


THE COMMISSIONER:  You can remain seated there if you like, if that's your preference.


MR RABAUD:  Sorry.  Sorry, Commissioner.  Ms Carovska, how long have you worked at the AMWU?‑‑‑In total about five years.


And what would your role be in the AMWU?‑‑‑For the last three years I've been a union organiser with the state branch.


The state branch being New South Wales?‑‑‑That's correct.


How many enterprise agreements have you negotiated in your role?‑‑‑Approximately 12.


Twelve.  And can you list some of the companies that you're negotiating enterprise agreements with?‑‑‑Taylors Lithgow, Parmalat, Stramit, and ‑ ‑ ‑


That's all right if you can't think of anything further?‑‑‑Yes.


Do you have a copy of the statutory declaration that you provided to the Commission?‑‑‑Yes.


I'll just get you a copy of that.  So in your statutory declaration you say that the notification time is 16 April and I believe that is at 1.6?‑‑‑This is for the NERR?


Sorry, it says the - sorry, 1.6, it says that the notification time for the proposed agreement you've put down 16 April 2019; is that correct?‑‑‑Yes.


So when did you start bargaining with Stramit?‑‑‑Me personally, I took over another official who had to leave for family reasons.  Had to go on leave, so I started in June, the first meeting in June which I think would've been around the 18th or the 19th.


Perfect.  And Ian Sherwood, you said that you took over from him.  Who is Ian Sherwood?‑‑‑Ian Sherwood is another union organiser with us in the state branch.

***        JACQUELINE CAROVSKA                                                                                                         XN MR RABAUD


So you only became involved because Mr Sherwood had gone away for family reasons you say?‑‑‑Yes.  That's right.  He had a sick relative he had to go see.


Why is it that you took over?  Why not wait until he came back?‑‑‑Well, because the guys in the company were keen to continue bargaining and I was happy to obviously look after some of the EN sites that he needed looking after while he was gone.


You say that the first meeting that you attended, as far as bargaining with Stramit is concerned, was some time in June?‑‑‑That's correct.  Yes.


And in the statutory declaration in part 2 there's a point 3 in point 2.1 where it says that the first date in June was 18 June; is that correct?‑‑‑That's correct.  Yes.


In your account how is bargaining with Stramit been proceeding thus far?‑‑‑Well, we've covered all our - for the most part we've covered where the company sit on each claim and what the union and the workers think, their response to the company's claims and also we've gone through our log of claims, so we've gone through that.  We've reached, I believe, an impasse on our main big ticket items, but we've been bargaining.


So in your discussions with the company has the conversations with the company been around a log of claims?


MR MINUCCI:  I object to that.  I object to that.




MR MINUCCI:  It's leading.


THE COMMISSIONER:  Yes, just ask an open question there, thanks, Mr Rabaud.

***        JACQUELINE CAROVSKA                                                                                                         XN MR RABAUD


MR RABAUD:  Okay.  Have you provided - sorry.  In your statutory declaration at 2.1 at number 6 you say that you presented a claim to the employer which includes the following items which remain outstanding.  There's a number of things there.  You say that you presented a claim to the employer.  What do you mean by that?‑‑‑So the original log of claims were presented to the company before my time, before I took over.  Obviously I had - there was a handover done between myself and Ian Sherwood.  The discussions that we've had with the company were around the claims.  I believe that they - we've had discussions in principle about what those clauses would look like or what the workers are seeking.  In some of those cases we presented the clauses to the company in - there's a couple of outstanding clauses that we need to give to the company but we're in discussion with that and that will be provided before the next meeting.


So you're saying that you've presented a log of claims to the company; is that correct?‑‑‑Yes.


And you're also saying that you're also in discussion with the company around proposing some draft clauses; did I hear that correctly?‑‑‑Yes.


MR MINUCCI:  I object.  Just a reminder to my friend, he needs to stop leading the witness.


THE COMMISSIONER:  Yes, well, I'll be the judge of that.  So, Mr Rabaud, are you legally qualified?




THE COMMISSIONER:  I'll place a greater responsibility on you then not to lead the witness.  If you're not legally qualified I might have provided you with a bit more allowance, but do your best not to lead the witness otherwise we'll have objections for the rest of the day.


MR RABAUD:  Yes, Commissioner.  When you've been speaking with the company during these bargaining meetings, have the discussions with the company been only around the claims that you've put to Stramit?‑‑‑Well, most of the discussion has been around our log of claims.  Obviously we're bargaining.  There has been discussion from the union, the delegates and from the company about what good faith bargaining looks like, so ‑ ‑ ‑




No further questions, Commissioner.



CROSS-EXAMINATION BY MR MINUCCI                                    [3.49 PM]

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


MR MINUCCI:  If the Commission pleases.  Ms Carovska, can you hear me?  Just so that ‑ ‑ ‑?‑‑‑Yes.


Excellent.  Stramit is in the business of manufacturing steel building products?‑‑‑Yes.


Residential and commercial sectors?


THE COMMISSIONER:  Do you agree with that?‑‑‑Yes, sorry.  Yes.


MR MINUCCI:  They manufacture these things for medium to large commercial projects?‑‑‑Yes.


Items are manufactured and custom ordered?‑‑‑Sorry, could you repeat that?


The items that are manufactured are varied and custom ordered?‑‑‑I'm not too sure about that.


You're aware that customers generally require a 24 to 48 turnaround for those products?‑‑‑I wasn't aware of that.


The customers are usually builders of various sizes?‑‑‑Yes.


And they include small, medium and large enterprises ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑with whom they contract?‑‑‑Yes.


They usually have a number of subcontractors and labourers that are involved, that is, the clients do?


THE COMMISSIONER:  Is that within your knowledge at all, Ms Carovska?‑‑‑No.  No.


MR MINUCCI:  I should say too, Ms Carovska, I'm not trying to trick you.  If it's not within your knowledge please just let me know?‑‑‑Sure.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


Certainly Stramit's operations on the Erskine Park site are divided into three shift patterns?‑‑‑Yes.


Day, afternoon and night?‑‑‑That's what I know, yes.


And that's done across manufacturing, warehousing and loading?‑‑‑Yes.


The work involves work with machinery to produce and to store products?‑‑‑Yes.


There's manual handling involved particularly given the size and nature of some of the products that are produced?‑‑‑I've actually not seen the work that's been done at Erskine Park.  However, I do look after Stramit in Orange which I think is more responsible for the distribution.  But I've been told some of those things, yes.


Employees are rostered in teams of two or three across the day, afternoon and night.


MR RABAUD:  Objection.  Where's the question?


THE COMMISSIONER:  I think we're generally asking whether you know this or ‑ ‑ ‑


MR MINUCCI:  About Erskine Park.


THE COMMISSIONER:  ‑ ‑ ‑if you know, Ms Carovska.  If you don't know it simply say I don't know?‑‑‑Yes.


You're being taken through I guess the respondent's material?‑‑‑Yes.


And asking whether you agree with these things or not?‑‑‑Yes.  I'm aware of the shift arrangements but could you just repeat that last question?


MR MINUCCI:  Yes, sure.  No?‑‑‑Or the last statement.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


Yes, of course.  The employees at the Erskine Park site are rostered between - in teams of two or three across day, afternoon and night shift?‑‑‑I wasn't aware of that.


And they also include rostering for first aid officers across the shifts?‑‑‑Yes.


That's two per shift?‑‑‑I didn't know that.


Certainly the first aid officers are members of the AMWU and eligible to participate in the PABO?‑‑‑Yes.


And the PABO application as its currently constituted was lodged by the AMWU?‑‑‑Yes.


On the application, which is the date of 21 June, relevantly identifies the union and identifies their applicable ABN or ACN number?‑‑‑Yes.


It ends in 116.


THE COMMISSIONER:  So, Mr Minucci, you asked before whether or not Ms Carovska knew that the first aid officers two per shift are members of the AMWU.




THE COMMISSIONER:  And you agreed with that, Ms Carovska?‑‑‑I don't know specifically who the first aid officers are.  I know that there are first aid officers there, but I haven't met them individually or at least if I know them I don't know if they're - who they are.


Do you know the density of the union membership of the relevant employees?‑‑‑I know that it's a very high density.  I don't know specifically against how many employees work there, but I would say that we have a majority of the workers.


Is that as high as you can take it, a majority?  You don't know the percentage?‑‑‑Well, if I - I know how many members we've got.  I just don't know how many employees there are in total to compare it to.


Thank you.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


MR MINUCCI:  I might try and help in that front, Commissioner, as well with the number of employees issue.


THE COMMISSIONER:  If you're prepared to share the information.


MR MINUCCI:  Yes, I'll get the instructions.  I'll see how we go.  Ms Carovska, as well, the AMWU's default was the default bargaining representative for the negotiation of this agreement or the new agreement?‑‑‑The default bargaining representative?


Yes.  That is the union was the default bargaining representative for the individuals who are covered by the agreement?‑‑‑Yes.  Yes.


Historically are you aware that AMWU delegates had more freedom to access Stramit sites in the past?‑‑‑That's what I've been told.


You're aware that there hasn't been a requirement to comply with the right of entry provisions in the Act previously?‑‑‑All I know is historically union officials before my time were invited onsite to talk to workers, whether that's on a lunch break, outside of EBA meetings.


So I'd suggest that the arrangements changed about 18 months ago when Stramit said that the union needed to comply with the right of entry provisions on all of its sites?


MR RABAUD:  Objection.  Commissioner, I'm just wondering what the relevance is in regards to this question being asserted by my friend.


THE COMMISSIONER:  It's either within your knowledge, Ms Carovska, or it's not.  I think it is a relevant matter, but, Ms Carovska, you either know the answer or you don't.  If you don't, don't be afraid to say I don't know?‑‑‑Yes.  Sorry, could you repeat that again?


MR MINUCCI:  Yes, of course.  So approximately 18 months ago Stramit's position changed such that it required the AMWU, when coming onto its sites, to comply with the right of entry provisions of the Fair Work Act?‑‑‑I'm not too sure about the dates.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


It's certainly the position to your knowledge recently at the very least, let's say over the last 12 months at least, that the AMWU has been required by Stramit to comply with the right of entry provisions of the Act?‑‑‑Recently that's correct, yes.


And that includes the Erskine Park site?‑‑‑Yes.


The AMWU is not happy about it, are they?‑‑‑About what specifically?


About having to comply with the right of entry provisions?‑‑‑We simply ask that the company, during bargaining, invite us to bargain at the site and talk to workers, report back to the workers when a time suits.


That wasn't the question I asked you.  The question I asked you is the AMWU aren't happy that they're being required to comply with the right of entry provisions of the Act?‑‑‑I wouldn't say we're unhappy.  I'd just say that me personally it's never been asked of me before when I'm bargaining, so we still carry on.  We still meet with workers.


The AMWU considers it's not okay to comply with laws it doesn't like?‑‑‑Could you repeat that, sorry?


I said the AMWU consider it's okay not to comply with laws it doesn't like?‑‑‑That it's - we think it's okay not to comply with laws it doesn't like?




THE COMMISSIONER:  Ms Carovska, I don't know if you can speak on behalf of the AMWU.  You're welcome to answer that question with respect to yourself?‑‑‑I'm just not sure how to answer that question.


Put it again, please.




THE COMMISSIONER:  Relevant to her views.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


MR MINUCCI:  Ms Carovska, to your knowledge and your experience with the AMWU on the Erskine Park site, it doesn't consider that it needs to comply with laws it doesn't like.


MR RABAUD:  Objection.  This is a serious allegation on which there's been no basis to assert that Jacqui or Ms Carovska has anything to do with this, but this is - or the AMWU for that matter, but it's a serious allegation and I don't think that that's something that Ms Carovska should have to entertain or explain.


THE COMMISSIONER:  Mr Minucci, you can ask Ms Carovska relevant to herself as to whether she wants to abide by laws, but she can't speak on behalf of others.


MR MINUCCI:  If the Commission pleases.  Ms Carovska, can you tell me, do you like the right of entry laws?


MR RABAUD:  Objection.  Relevance?


THE COMMISSIONER:  No, I'll allow the question.  You might like the right of entry laws, Ms Carovska, because it gives you rights that exist if they weren't there at all?‑‑‑Yes, I don't - I feel like I'm being trapped into answering a question about whether I do or don't like laws.  Simply all we've put to Stramit is why they wouldn't invite us to meet with workers.


MR MINUCCI:  And you put that to Stramit because you don't like the idea of having to comply with the formal requirements of the right of entry provisions of the Act?‑‑‑In all EBAs that I have negotiated I have never been asked to put in a right of entry for - to negotiate.  We've always done it in good faith with companies.  There's never been an issue, and, in my experience, it's what's sped up the process.


It's not quite the question I asked you, but I'll move on.  Now, you've noted the period of bargaining commenced from on or about 16 April 2019?‑‑‑Yes.


And there were three bargaining meetings between 16 April 2018 and the filing of the PABO?‑‑‑Three.


Yes.  So some of the meetings might've gone over two days, but in terms of officially agreeing to meet there were three I'd suggest to you?‑‑‑Are you counting two days as one meeting?

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


Yes.  There was one meeting that went for two days, and then the others were individual meetings, and that constituted three meetings?‑‑‑Could you repeat the question, sorry?


Sure.  There were three bargaining meetings between 16 April 2019 and the filing of the PABO?‑‑‑Yes.


The first meeting was on 14 May 2019?‑‑‑Yes.


And you weren't there at that meeting?‑‑‑No.


But you were aware that the AMWU complained about the right of entry process with respect to Stramit's Erskine Park site?‑‑‑I wasn't aware until I saw the minutes that the company have put forward.


We've seen in the minutes that the AMWU considered the right of entry process to be insulting.  Have you seen that?‑‑‑Yes, but those minutes were never approved.  They were just - the company have gone ahead and typed up those minutes and then they gave it to me at the - it would've been either the last meeting or the meeting before, but we never approved the minutes that read like a - they read like a transcript.


So you've seen there that the record is that that's what the AMWU said.  They considered the right of entry provisions insulting?‑‑‑I don't think that that's correct.  I think that's what you - what the company have written, but I don't think that's - I think that's mischaracterised.


THE COMMISSIONER:  Is it the case, Ms Carovska, that you can't confirm to me and that's because you weren't at the meeting before?‑‑‑That's correct, yes.


MR MINUCCI:  Okay.  So do I take it that also applies to the minutes on 27 May 2019?‑‑‑That's correct, yes.


So in a contest between Ms Smith and yourself about what actually went on at the meeting Ms Smith's in the position to know and you're not?‑‑‑Well, Ms Smith was there.


That's right, okay?‑‑‑Yes.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


The first log of - or supposed - withdraw that.  The first document put forward as a log of claim was put forward on 27 May 2019 by the AMWU?‑‑‑Yes.


That was just dot points.  I think there were 12?‑‑‑Yes, but that's not uncommon.


Certainly no specificity other than the dot points about what you actually wanted?‑‑‑No, but in those meetings that we've had, because they went from about 9 or 10 o'clock in the morning till about 3 in the afternoon, we went - we spoke about them in great detail and I think the company had an understanding of what we were - so Ian before me had gone through them, and then I went through them as well, so the company had an understanding of what we were seeking, and they actually responded to what we were seeking as well.


I thought you couldn't talk about 27 May 2019?‑‑‑No, well, you're specifically asking me about the minutes, but the handover that I did with Ian in the very short time, I had an understanding of what the guys were seeking.


On 18 June 2019 you had another bargaining meeting?‑‑‑Yes.


As we've discussed, these meetings were all happening within a pretty short space of time between start of bargaining and your application for the protected action ballot order?‑‑‑Sorry, could you repeat that?


So this is all happening in a pretty short space of time?  After the third meeting this is happening in a pretty short space of time on 18 June?‑‑‑Yes.  Well, it's - we've gone through all the - if you're asking if we've gone through all the claims, we had at that point.


No, I'm just asking you to answer my question.


THE COMMISSIONER:  What's the question again?


MR MINUCCI:  The question is it was a relatively short period of time since the start of bargaining and this point at 18 June 2019?‑‑‑Yes.


Right.  Then again at 18 June 2019 meeting the AMWU raised issues with the right of entry provisions?‑‑‑Yes.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


The AMWU said it was flabbergasted that Stramit would not pay employees to meet with the union during work hours?‑‑‑Yes.


The AMWU said it did not have to provide right of entry documents to other employers?‑‑‑Yes, in the context of bargaining.


And that's inconsistent with the legal obligations in the Fair Work Act, isn't it?‑‑‑I - in the context of bargaining?


In the context of the Fair Work Act.


MR RABAUD:  Objection.  Objection.  What is the relevance of this to bargaining specifically and this application?


THE COMMISSIONER:  We know this is the whole respondent's case, so I'm going to let them run it.


MR RABAUD:  If it please the Commissioner.


MR MINUCCI:  Do you want me to repeat the question, Ms Carovska?‑‑‑Yes, please.


So I said to you that the AMWU - you agreed with me that the AMWU had said in bargaining that it didn't want to provide right of entry documents to other employees.  You said yes to that, and then I said to you that that's inconsistent with the obligations under the Fair Work Act, and I'm waiting for an answer as to whether you agree or disagree with me?‑‑‑I don't actually think that's inconsistent with the Fair Work Act in the context of bargaining.


I'd suggest to you that the right of entry provisions under the Act aren't optional?‑‑‑Can I just - I'm not sure.


During that meeting the AMWU threatened Stramit by saying that if Stramit wanted a smooth process it would allow paid meetings with the AMWU?‑‑‑That wasn't a threat.


So what part of the words, "If Stramit wants a smooth process the AMWU would be allowed paid meetings" is not a threat?‑‑‑Can I say I actually don't - if that's something that Laura is quoting me, I don't even recall saying that.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


THE COMMISSIONER:  Let's go to Ms Smith's statement and see who she attributes that to.


MR MINUCCI:  Yes.  I think it's in the exhibit, Commissioner.  I'll just turn that up.  Sorry, Ms Carovska, just while I'm trying to turn that up, do you recall anybody at that meeting saying those words or words to the effect?‑‑‑I don't recall.


So it's certainly possible.


THE COMMISSIONER:  What were the words again, please?


MR MINUCCI:  The words were to the effect of, "If Stramit wanted a smooth process it would allow paid meetings with the AMWU".


THE COMMISSIONER:  So we need to see where that is asserted by Ms Smith.


MR MINUCCI:  Yes.  They're my instructions at the moment.  We'll see if it accords with that, and I can withdraw it if I need to, Commissioner.  If the Commission pleases, just for the Commission's reference it's not as express as that as I see it, but it's at page 24 of the attachment LS1 to Ms Smith's statement.  So I'll correct it for you, Ms Carovska, and I'll see if I can jog your memory a bit better, so forgive me for that.  I withdraw the last question and I'll start again.


THE COMMISSIONER:  What are your instructions as to how these minutes were prepared, Mr Minucci?


MR MINUCCI:  My instructions are - is that they were typed at the meeting by a person who was at the meeting, and Ms Smith adopts them because she was present.


THE COMMISSIONER:  Do we know who this person is?


MR MINUCCI:  I can get those instructions.  Ashleigh Maynard I think or Taylor.


THE COMMISSIONER:  It's best if that's put ‑ ‑ ‑


MR MINUCCI:  Ms Taylor or Maynard.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


THE COMMISSIONER:  ‑ ‑ ‑to this witness to see if they agree.


MR MINUCCI:  Yes.  Thank you, Commissioner.  Do you agree, Ms Carovska, that Ms Taylor took the minutes for that meeting?‑‑‑Yes, but I only found out until they handed me the minutes at the last meeting.  I knew that minutes were being taken.  I just didn't realise how they were being taken.


THE COMMISSIONER:  Did you observe Ms Taylor with a laptop in front of her typing?‑‑‑Yes, that's right.  Yes.


MR MINUCCI:  So these issues of right of entry that have been raised as part of the discussions with Stramit arise in the context of broader issues that the AMWU have with Stramit about right of entry across other sites.


MR RABAUD:  Objection.  Relevance?


THE COMMISSIONER:  Sorry, what was the question again, Mr Minucci?


MR MINUCCI:  If the Commission pleases, I said that these - I'm putting to this witness that the right of entry issues raised during the bargaining meetings arise out of the context of the AMWU having issues with Stramit about right of entry across other sites.


THE COMMISSIONER:  Yes, I'll allow it?‑‑‑The first time that I ever heard of that was when I read Ms Smith's statement.


MR MINUCCI:  So you can't comment then on, for example, comments made by Mr Malgari?‑‑‑No.


But you know he's a union official?‑‑‑He's the assistant secretary of the Victorian Branch.


That's at the AMWU; yes?‑‑‑That's right.  Yes.


You've also seen in, I would assume, attached to Ms Smith's statement at LS10 various F10s that have been filed by the AMWU.  Have you had an opportunity to have a look at those?‑‑‑I've only seen Ms Smith's statement.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


So you haven't seen the attachments?‑‑‑And the minutes.




So you haven't seen the attachments?‑‑‑No.


So tell me if you can answer this, Ms Carovska.  I don't want to be unfair to you, but if I suggested to you ‑ ‑ ‑?‑‑‑Sure.


‑ ‑ ‑that on each of the F10s the name of the applicant was the Australian Manufacturing Workers' Union and the ABN or ACN number was the same as the number that was put on your PABO application, would you disagree with me?‑‑‑I'm not sure.


MR RABAUD:  Objection.  I'm just wondering what the relevance is of an application that deals with a section 739 application to deal with a dispute that has any relevance to an application for a protected action ballot order and the bargaining that actually occurred or is occurring at the Erskine Park site for Stramit.


THE COMMISSIONER:  We'll learn in submissions what that might be, but this is the respondent's case.  It's entitled to put this to the witness.  It would be unfair if it wasn't put, and I want to ensure that there's no issues here if Ms Smith is - if she's giving evidence about it, and it wasn't put to the applicant?‑‑‑Yes.


So if need be, if you have a spare copy of the annexures there then perhaps Ms Carovska can have that and if there's any issues you can go through it.


MR RABAUD:  Yes, Commissioner.


THE WITNESS:  So the answer to your last question is that I'm not sure.


MR MINUCCI:  We'll see if my learned friend can turn up a copy of LS10 for you just to have a quick look.  I won't spend too much time on it given that you weren't involved directly.  Have you got a copy of at least the first page there, Ms Carovska?‑‑‑Yes, it looks like I do.


It looks like an F10?‑‑‑Yes.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


Front page and you'll see half-way down the page there the legal name of the AMWU is put.  The trading name is the Australian Manufacturing Workers' Union.  You see all that?‑‑‑Correct, yes.


And you'll see there underneath that the ABN or the ACN number is there as well?‑‑‑That's right.


Ends in 116?‑‑‑Yes.


That's the same ABN number that you put on the PABO that was filed in with this Commission in this case?‑‑‑I just have to look ‑ ‑ ‑


No, please check.  Have a look, please?‑‑‑Maybe you can help me on the form that you're referring to?


Yes, just your application for the protected action ballot order.  The original application that's been filed ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑for the protected action ballot, you'll see on the first page of that application in a similar way the details there, and again at the bottom of the page you'll see the legal name of the business there is the AMWU?‑‑‑Yes.  Yes, that's right.


And the same ABN or ACN ends in 116?‑‑‑Yes, that's right.


So we're talking about the same organisation?‑‑‑Yes, that's correct.


In your statutory declaration that you filed in support you don't mention anything about the issues the AMWU have in respect of right of entry?‑‑‑No.


Should have been something that you would've mentioned I'd suggest to you?‑‑‑Well, it's only been discussions around what we feel is good faith bargaining but we've continued to - the main issues are what we're - our log of claims.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


I'd suggest to you that the right of entry has been raised on every single occasion that you've met with Stramit, and given it's had such prominence I'd suggest that that should've been something included in the application?‑‑‑Well, it's always been mentioned in the context of good faith bargaining.  It's never been an obstacle in us continuing to negotiate and talk about our claims.


In order for Stramit to continue to operate appropriately and safely it would need to understand any proposed disruptions to its operation by reason of any proposed industrial action?‑‑‑Sorry, could you repeat that?


Sure.  In order for Stramit to operate safely and efficiently it would need to know and understand and have details about the appropriate notice for any protected industrial action?‑‑‑Yes.


Need to be in a position to be able to make appropriate contingency planning prior to the taking of any action?‑‑‑Sure, yes.


And that's important because Stramit has a number of customers it needs to service?‑‑‑Yes.


Might need to change rosters for example?‑‑‑Well, that's the company's prerogative?‑‑‑Yes.


But you'd accept that in managing protected industrial action, if and when it arises, the company might have to change its rosters?‑‑‑Yes.


Might have to engage labour hire employees?‑‑‑Well, I'm not sure.  I mean, if that's what they need to do then that's fine.


Certainly a possibility?‑‑‑Sure.


The company might need to otherwise restrict its operations in some way?‑‑‑Yes.


Might need to communicate the disruptions to clients?‑‑‑Possibly.


It's important to ensure that Stramit's business is able to continue to operate during any period of industrial actions?‑‑‑Sorry, could you repeat that?  It's?

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


It's important to ensure Stramit's business is able to continue to operate during any period of industrial actions?‑‑‑Well, if it - I don't know how to answer that.  I mean, if there's industrial action taking place then it's likely that will cause disruptions.  From the company's point of view I see what you're saying.


Certainly to ensure that it's able to appropriately implement any contingency planning appropriate notice period would need to be given?‑‑‑Yes.


That might be five days or it might be seven days I would suggest to you?


MR RABAUD:  Objection.  That's not within the witness's knowledge.


MR MINUCCI:  She hasn't said that.


THE COMMISSIONER:  Do you know at all, Ms Carovska?‑‑‑My knowledge is that ‑ ‑ ‑


MR RABAUD:  Objection, she's not qualified - she's not in a position - she's not qualified to answer that.  It's a legal position.


THE COMMISSIONER:  I've asked her.  Is it within your knowledge?  If it's not within your knowledge say it's not within my knowledge?‑‑‑It's not within my knowledge.


MR MINUCCI:  Have you got the ballot in front of you?  The proposed ballot questions?‑‑‑Yes.


Just have that there for a moment.  The employees at the Erskine Park site that are predominantly your members, approximately aged between 45 and 55, the majority of?‑‑‑That sounds right.  That sounds about right, yes.


They're a large non-English speaking contingent?‑‑‑Yes, I would agree with that.


Some of them are functionally literate at best?‑‑‑I'm not too sure about that.


Certainly a large English as a second language workforce?‑‑‑Yes, I would say that's right.


Vietnamese and Filipino for example?‑‑‑Yes.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


You're aware that the company even had to have the notice of representational rights translated so that employees could understand it?‑‑‑No, I wasn't aware of that.


THE COMMISSIONER:  Is this in Ms Smith's evidence?


MR MINUCCI:  No, no, no, this is just me putting propositions to see if she's aware.


THE COMMISSIONER:  Yes.  I wasn't aware of this until now.


MR MINUCCI:  With respect to the Commissioner the instructions have come late for me too.




MR MINUCCI:  So I apologise.  And it's that - this is not meant to be a ‑ ‑ ‑


THE COMMISSIONER:  I thought I was across everything; am I right?


MR MINUCCI:  No, you are right.  You are absolutely right.  I would suggest to you that because of the nature of that contingent or the nature of that workforce it's even more important for them to understand precisely what they're being asked to approve in a protected action ballot?‑‑‑Yes, I agree.


So the ballot questions that you've got draw express distinctions between "stoppages of work" and strikes?‑‑‑Yes.


Deliberate?‑‑‑Sorry, I'm just trying to find it.


That's all right?‑‑‑Yes, sorry, could you repeat that, sorry?


Yes, sure.  So the ballot - it was a deliberate distinction on the part of the AMWU to differentiate between "stoppages of work" and "strikes"?‑‑‑My understanding is that this is a generic - these are the generic questions that we list, so I'm not sure how to ‑ ‑ ‑

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


What, so you haven't given them any thought?‑‑‑No, I have, but I'm not aware of what the alternative would be because this is normally what we would ‑ ‑ ‑


You've made the application.  You've certainly sworn a stat dec to support it?‑‑‑Yes.  Yes.


And you're not sure, are you, as to why distinctions are drawn in the ballot question that you're proposing for the employees to vote on?‑‑‑It's not that I'm not sure.  How do I - I just feel like that's ‑ ‑ ‑


THE COMMISSIONER:  Mr Minucci, I had a look and in the last two days there's been PABOs made.




THE COMMISSIONER:  Two days ago by Gostencnik DP, the AMWU, and Burson Automatic Pty Ltd.




THE COMMISSIONER:  And similar questions posed.




THE COMMISSIONER:  Little bit different in terms of saying an unlimited number of stoppages for work for the duration of, and then the number of hours.




THE COMMISSIONER:  And then an unlimited number of indefinite strikes.  So, there's certainly these sorts of questions being put all over the place.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


MR MINUCCI:  And that may well be true, Commissioner, but that doesn't necessarily mean in each of those cases these matters have been explored, and it doesn't necessarily mean in any of those cases that a justification or otherwise between particular differences have been able to be elicited such that the Commission can make an appropriate determination on my submissions at the end.  So, in my submission, it's still appropriate, particularly given that this witness can barely explain, in my submission, about what has or hasn't been considered as part of this application for these questions to be asked.




MR MINUCCI:  We've talked about the employees.  Certainly given the nature of the employees they wouldn't all have necessary understanding about any sophisticated industrial distinction between those terms?‑‑‑The terms - so what are the two terms?


Stoppages of work or strikes?‑‑‑Well, they understand what ‑ ‑ ‑


MR RABAUD:  Objection.  My friend is asking Ms Carovska whether or not employees that work at Stramit understand the phrases that have been put to the questions.  Ms Carovska isn't in a position to answer that for those employees, so therefore I would request that that question be withdrawn.


THE COMMISSIONER:  I think it was put, would they be more likely than Ms Carovska.  So Ms Carovska, do your best to state what you understand to be the difference between stoppage of work and strike?‑‑‑To explain the difference between what I think is a stoppage and a strike.


Yes, well, you know that that's the respondent's case?‑‑‑Yes.  I'm just not sure how to answer the question, sorry.


MR MINUCCI:  I could say the same about periodic work bans as well.  Yes?


MR RABAUD:  Objection.  What was the question?


MR MINUCCI:  Withdraw it and I'll move on.  If the Commission pleases, I might just have a one moment?




MR MINUCCI:  If the Commission pleases, I'm very grateful for that opportunity and I don't have any further questions for this witness.

***        JACQUELINE CAROVSKA                                                                                                      XXN MR MINUCCI


THE COMMISSIONER:  Thank you.  Anything arising, Mr Rabaud?

RE-EXAMINATION BY MR RABAUD                                             [4.29 PM]


MR RABAUD:  Yes, if it pleases, I may just ask a few questions of Ms Carovska.




MR RABAUD:  Ms Carovska, the proposed ballot questions that Mr Minucci has asked you about that feature as part of the application - sorry, I withdraw that.  What kinds of questions do you usually put in a protected action ballot?


MR MINUCCI:  I object to that.  It's not re-examination.


THE COMMISSIONER:  It is part of the questions that I put earlier so I'll allow it.


THE WITNESS:  The type of questions that we would put are the type of questions that are listed here.


MR RABAUD:  Thank you.  Why have you included the questions that are put in the application?‑‑‑Because it gives the opportunity - it gives workers the opportunity to decide what type of industrial action they want to take and vote on.


No further questions, Commissioner.


THE COMMISSIONER:  Thank you, Ms Carovska, you're now excused from giving evidence.  You're welcome to remain where you are or take a different seat, it's up to you.

<THE WITNESS WITHDREW                                                            [4.31 PM]


MR MINUCCI:  If the Commission pleases, might I ask that Ms Smith be called to give evidence?


THE COMMISSIONER:  Yes.  Thank you.  I note that your statutory declaration, Ms Carovska, is part of the application, but I will admit it into evidence unless there's any objection?

***        JACQUELINE CAROVSKA                                                                                                      RXN MR RABAUD


MR MINUCCI:  No objection, Commissioner.


THE COMMISSIONER:  Ms Carovska's statutory declaration is admitted and marked A1.



THE ASSOCIATE:  Can you state your full name and address, please.


MS SMITH:  Laura Agnes Smith, (address supplied).

<LAURA AGNES SMITH, SWORN                                                    [4.31 PM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                               [9.32 AM]


MR MINUCCI:  Yes, thank you.


THE COMMISSIONER:  You can't see the witness, can you, Mr Rabaud?


MR RABAUD:  No, I can't, Commissioner.


THE COMMISSIONER:  No.  We're going to deal with it, I think.


MR RABAUD:  Yes, that's better, Commissioner.


THE COMMISSIONER:  Thank you.  Thanks, Mr Minucci.


MR MINUCCI:  If the Commission pleases.


Ms Smith, if I could get you just to come a little bit further towards that microphone.  I understand that microphone is actually what's going to be amplifying your voice down to Sydney, so I'll just get you to speak into that as best you can, and to speak up if that's okay?‑‑‑Okay.


And if you need to you can bring it closer to you as well.  Could you please state your full name again for the purposes of the transcript?‑‑‑It's Laura Agnes Smith.

***        LAURA AGNES SMITH                                                                                                              XN MR MINUCCI


Where do you work?‑‑‑I work at Stramit.


In what position do you work?‑‑‑I'm an HR business partner, human resources.


How long have been there?‑‑‑I have been there since November last year.  I think the 7th.


What have you done for work prior to joining Stramit?‑‑‑Prior to Stramit I was at a company called Auto and General Holdings, an insurance company, similar sort of role.  And prior to that, Telstra in Australia, and I had some years in New Zealand in various different industries.


And is that generally in human resources roles?‑‑‑Yes.


Are you involved in the bargaining for the replacement to the 2015 Erskine Park agreement?‑‑‑Yes, I am.


Have you participated in the relevant bargaining meetings?‑‑‑Yes.


You've been in all of them?‑‑‑Yes.


Have you prepared a statement for the purposes of these proceedings?‑‑‑I have.


If the Commission pleases, we have a copy here to hand to the witness if that's appropriate.




MR MINUCCI:  That appears to be a copy of your statement?‑‑‑It does.


With 11 annexures?‑‑‑Yes.


There are two corrections you'd like to make to that statement, aren't there?‑‑‑There are, yes.

***        LAURA AGNES SMITH                                                                                                              XN MR MINUCCI


If you could turn to paragraph 42 for me?‑‑‑Yes.


The name Alisha Taylor should actually be Alisha Maynard, shouldn't it?‑‑‑That's correct.




And if I can get you to turn to paragraph 66.  You got that there?‑‑‑Yes.


The internal paragraph references should in fact be 63 and 65, shouldn't they?‑‑‑Yes.


Subject to those two corrections are the contents of this statement true and correct to the best of your knowledge and belief?‑‑‑They are, yes.


If the Commission pleases I tender that.


THE COMMISSIONER:  Yes.  Any objection, Mr Rabaud?


MR RABAUD:  No objection.


THE COMMISSIONER:  Ms Smith's statement and annexures are admitted and marked R1.



MR MINUCCI:  If the Commission pleases, Ms Smith I don't have any further questions for you in-chief.


THE COMMISSIONER:  Thank you.  You'll be asked questions now in cross-examination?‑‑‑Thank you.

CROSS-EXAMINATION BY MR RABAUD                                     [4.35 PM]


MR RABAUD:  Hello, Ms Smith, my name is James Rabaud.  I'm just going to ask you a few questions about your statement if that's all right?‑‑‑Okay, yes.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


So you've read this statement; yes?‑‑‑Yes.


You've obviously considered it and it's been well prepared; is that correct?‑‑‑Yes.


I'd just like to take you to paragraph 9 of your statement on page 2?‑‑‑Yes.


So in that paragraph you state there was - you list a series of dates?‑‑‑Yes.


These are the dates that bargaining occurred; correct?‑‑‑Yes.


So that was 14, 27 and 28 May, 18 and 19 June, and then 24 June?‑‑‑Yes.


So that would be a total of six dates; is that correct?‑‑‑Yes.


On each of those dates six meetings or six bargaining meetings occurred; is that correct?‑‑‑No, I would say there were four bargaining meetings in total.  The reason being is we had to travel, so we would do half a day on each day instead of the full day, so I count it as four meetings.


Sorry, one moment, please.  Ms Smith, there's no real material difference, is there, between, you know, the dates that you've proposed, is there?


MR MINUCCI:  I object to that.  I don't quite understand the question.


THE COMMISSIONER:  How many hours do you say was spent at each meeting bargaining, Ms Smith?‑‑‑The first day was an introductory session, so it was literally setting up the parameters to the table on the minutes at the end of, you know, what is good faith bargaining, how would we work together, those sorts of things, so it was a general sort of meet and greet, and I would say that was approximately four hours.  We had a lunch break and things like that as well.  On the 27 and 28 May we didn't get started from memory till lunch time and had a lunch break and that sort of thing so a couple of hours on the first day and a couple of hours on the second day.


Only two hours each day?‑‑‑With a meal break and things like that.  So we got started at 11.30 and then had a break for lunch and then continued.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


You tell me how many hours on the 27th and how many hours on the 28th?‑‑‑I would say actual discussion or general ‑ ‑ ‑


Yes?‑‑‑Only a couple of hours.


Two hours?‑‑‑Maximum three, yes.


Two to three hours each day?‑‑‑Yes.  Yes.


And the 18th and 19th?‑‑‑Similar.


Similar, two to three hours.  And 24 June?‑‑‑That was a full day.  So we flew on the Sunday instead.  So the fourth meeting was - but we finished early from recollection, so I believe we got started about 9.30 and had again a break for lunch and probably finished mid-afternoon, 3 o'clock-ish.


So is it five hours of bargaining?‑‑‑Yes, five or six hours.


Thank you.  Yes, carry on, thanks.


MR RABAUD:  Thank you, Commissioner.  I'd just like to take you to paragraph 12 of your statement, which is on the same page.  You say that the application that's subject to these proceedings was made on 21 June; is that correct?‑‑‑Yes.  So it was after the third meeting, and it was the first one I note that Jacqui had attended.


Thank you.  You had a further meeting with the AMWU after the application was made; that was correct?‑‑‑Yes, on the 24th, so Monday this week.


Thank you.  From Stramit, the Stramit representatives that attended the bargaining meetings were yourself, Ashleigh Taylor and Brendon Arundel?‑‑‑Yes.


Is that correct?‑‑‑That's correct.


The three of you attended each of the bargaining meetings that occurred; is that correct?‑‑‑Yes.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


At paragraph 13 of your statement, which is on page 3 ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑you say sort of half-way through that paragraph that Ashleigh Taylor, human resources advisor, who was in attendance to take minutes; is that correct?‑‑‑Yes.


I'd just like to take you to LS1 that you've got attached to your statement.  Are these the minutes that you refer to?‑‑‑Yes.


So Ashleigh Arundel prepared these on behalf of Stramit; is that correct?‑‑‑Ashleigh Taylor.


Sorry, Ashleigh Taylor.  Sorry?‑‑‑Yes.


So these were not prepared by you?‑‑‑No.


They were prepared by Ms Taylor?‑‑‑Yes, they were taken during the meeting by Ms Taylor.


So this is Stramit's version of events for bargaining; is that correct?‑‑‑Yes.


Have you provided these to all the relevant bargaining representatives, Ms Smith?‑‑‑We did on the meeting of the 24th we provided hard copies to everybody.


So ‑ ‑ ‑?‑‑‑I think this version is the verbatim version and then there's, you know, one where matters were put into their various categories.


So, Ms Smith, you say that this copy of LS1 was given to all the relevant bargaining representatives three days after this application was made; is that correct?‑‑‑I don't know if it was this copy.


On 24 June?‑‑‑But, yes, there was a copy of the minutes given to everyone on 24 June.


Is it true that this copy of minutes was not agreed by all the relevant bargaining representatives?‑‑‑Yes, that's true.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


Thank you.  In paragraph 13 of your statement still you say that Ian Sherwood attended for the AMWU as a bargaining representative; is that correct?‑‑‑Yes, he attended the first two meetings.


Are you aware as to why Mr Sherwood did not attend the third bargaining meeting?‑‑‑Yes, he sent an email saying that he had to travel to  Scotland due to a family - I don't know if it was a - he didn't say emergency but something to do with his family.


Yes, thank you.  And Ms Carovska took over from that point; is that correct?‑‑‑That's correct.


And bargaining has continued since that time; is that correct?‑‑‑Just that 24th meeting, yes.


Yes.  I'd just like to take you to paragraph 27 of your statement if that's okay.  That's on page 4?‑‑‑Yes.


You say on 27 May the logs of claims were discussed.  Do you mean by that the claims put by Stramit and the claims put by the AMWU?‑‑‑Yes.  So the AMWU ‑ ‑ ‑


Yes?‑‑‑That's all, yes.


Yes, thank you.  This is the log of claims that you refer to at both LS4 and LS5 of your statement; is that correct?‑‑‑Yes.  That's correct.


So at paragraph 27 of your statement you say that both of these logs were discussed; that's correct, isn't it?‑‑‑Yes.


Is it true that you had further discussion about these logs of claims in subsequent meetings?‑‑‑We shared the detail of what was meant by each of the points, yes.


Thank you.  I'd just like to take you to paragraph 36 of your statement.  That's just on page 5?‑‑‑Yes.


You reference a number of matters that were spoken about during the course of this meeting and you list those, (a), (b), (c), (d) and (e); is that correct?‑‑‑That's correct.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


You also say, and I'll just take you to paragraph 39 of your statement on the same page - sorry, on page 6?‑‑‑Yes.


You say, the second-last sentence:


During the meeting some progress was made in relation to personal leave and the employee consultative committee.


Is that correct?‑‑‑That's correct.


Just to take you just to the beginning of paragraph 39, you say that this progress was made on the meeting of 19 June 2019?‑‑‑Well, yes, we had come with a bit of a script and an outline based on the initial log of claims just around Stramit's initial position with the aim of being quite transparent around how we felt about things, so it was literally just our position on a number of matters.


Yes.  Thank you.  Is it correct to say that this progress was made some two days before the application was made by the AMWU; is that correct?‑‑‑I would say communication occurred.  I don't think progress was made.


So you say that no progress was made?‑‑‑Just understanding was ‑ ‑ ‑


Is that correct?‑‑‑That understanding was shared that we didn't progress anything or agree anything or disagree anything.  It was literally understanding each party's position.


So you say that the sentence in paragraph 39 of your statement is incorrect?


MR MINUCCI:  Which sentence?


THE COMMISSIONER:  The sentence that reads:


Further during the meeting some progress was made in relation to personal leave and the employee consultative committee.


Is that incorrect, is it?‑‑‑It's not incorrect.  We discussed and we seemed to be understanding each ‑ ‑ ‑

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


MR RABAUD:  So it is correct?


THE WITNESS:  ‑ ‑ ‑other's position on those two things.  Yes, so we had made some on those two.


THE COMMISSIONER:  You've used the word "progress"?‑‑‑Yes.


You agree that progress was made?‑‑‑Yes.


MR RABAUD:  Sorry, one moment.  Is it correct to say that you understand the union's claims, Ms Smith?


MR MINUCCI:  I object to that.  It doesn't matter about what Ms Smith understands or doesn't understand.


THE COMMISSIONER:  No, I'll allow the question.


THE WITNESS:  What do you mean?


MR RABAUD:  Is it correct to say that you understand the union's claims?‑‑‑It's correct to say we have shared the content of the log of claims and what that means.  Some of the detail around those points.


You understand that; yes?‑‑‑I understand it mostly.


Thank you.  Since 24 June have you had any contact with Ms Carovska about bargaining?‑‑‑Since 24 June?  I emailed her today just around - we were going to share a draft agreement, and exchange clauses and I explained that that would be - that would occur on Monday.


So you've had email correspondence with Ms Carovska; that's correct?‑‑‑Yes, today.


Have you had any telephone conversations or anything to that effect?‑‑‑No.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


No?  Have you planned to meet with the AMWU since 24 June?‑‑‑Yes, on 24 June and prior I think we had agreed the next bargaining date being 8 July.


So you say that the next bargaining meeting has actually been scheduled for 8 July; that's correct?‑‑‑Yes.


Are there any other dates that you've agreed to meet?‑‑‑That's it for now.


You say that you had sent some email correspondence today to Ms Carovska; that's right?‑‑‑Yes.  That's right.


And what was that correspondence about?‑‑‑It was about sharing a draft agreement and exchanging draft clauses.


So you agree that there's ongoing communication with Ms Carovska in relation to bargaining?‑‑‑Yes.


Just one moment, please.  Apologies.  I'd just like to take you to LS7 of your statement?‑‑‑Sorry, I'll have to find it.


LS7 - sorry, I'm unaware of what page number that actually is.  Do you have a copy of that in front of you, Ms Smith?‑‑‑Yes.


So in the top line does that correctly say that this email has been sent from Barry Terzic?‑‑‑Yes.


Is it fair to say that Barry Terzic is not a bargaining representative for this agreement?‑‑‑Yes.


Is that correct?  Is it fair to say or is it correct that the bargaining representatives for this agreement are Ian Sherwood or Ms Carovska; is that correct?‑‑‑Yes.


I can also see in that email on LS7 that Lou Malgari is also copied into that email; is that correct?‑‑‑Yes, that's correct.


Is he a bargaining representative for this agreement, Ms Smith?‑‑‑No, he's not.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


So this email does not relate to any of the bargaining representatives for the Erskine Park agreement; is that correct?‑‑‑Well, Lou Malgari I understand is the assistant state secretary or something for the AMWU, so I understand there's a bit of a connection there, but he is not party to the bargaining.


Thank you.  Are you aware that Lou Malgari is the assistant state secretary for the Victorian Branch of the AMWU?  Are you aware of that?  You are?‑‑‑Well, I didn't know the distinction, yes.


Do you know what state Erskine Park resides in, Ms Smith?‑‑‑New South Wales.


So can you see there is a distinction between the assistant state secretary of Victoria and possibly the assistant state secretary of New South Wales?‑‑‑I can now.


I'll move on to the second page of LS7 where there's another email.  Are any of the relevant bargaining representatives for the Erskine Park agreement copied into or involved in that ‑ ‑ ‑


MR MINUCCI:  I object to that, and I object to it on this basis, that we've had some discussions about using the language of bargaining representatives.  That phrase has a particular meaning under the legislation and it's quite clear that the AMWU is the bargaining representative in that context.


THE COMMISSIONER:  So it's the relevant industrial officers, is it?




MR RABAUD:  Sorry, I withdraw that.  Are the people copied into that email the relevant industrial organisers involved in bargaining for the Erskine Park agreement?‑‑‑No.


I'll take you on to the third page where there's more email correspondence, Ms Smith.  Again, are any of the relevant New South Wales industrial officers for this agreement copied or part of this email chain?‑‑‑No, they're not.


I'll just take you to LS8 if that's possible.  It says here it's a copy of union meetings and this was on 28 February 2019; is that correct?‑‑‑Yes.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


This occurred prior to the notification time for the agreement being 6 April 2019; is that correct, Ms Smith?‑‑‑Yes, that's correct.


Are any of the people or any of the names, attendees or union representatives listed at the top of that page based in New South Wales?‑‑‑No.


Are any of them involved with the negotiations for the Erskine Park agreement?‑‑‑No.


I'll take you to LS9, Ms Smith.  Again, this is another email correspondence sent by Lou Malgari.  Are any of the relevant industrial officers for the New South Wales branch of the AMWU involved in the Erskine Park negotiation copied into this email?‑‑‑No, they're not.


Thank you.  I'll just take you to LS10 of your statement as well, Ms Smith?‑‑‑Yes.


I'll take you to the first page of that where the applicant is listed as being based in the suburb of Carlton South in the state of Victoria.  Can you see that there?‑‑‑Yes.


In the email address it also identifies the email address, industrial.vic@AMWU.org.au; is that correct?‑‑‑Yes.


Is it fair to say that this application came from the AMWU in Victoria; is that correct?‑‑‑Yes, looks that way.


Thank you.


THE COMMISSIONER:  On that issue at 1.2 the enterprise agreement is the Taurean Door Systems Vic Enterprise Agreement 2017.  So is this relevant to a different site, was it?‑‑‑Knoxfield site in Melbourne has a Stramit operation in Taurean in close proximity so that's the connection.


Yes, but you're bargaining for the Erskine Park site, aren't you?‑‑‑Yes.  Yes.


So does this application have anything to do with the Erskine Park site?‑‑‑No.



***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


So why have you included it in your material?‑‑‑Well, because of the strategic sort of bigger picture that I was getting a sense that right of entry and union paid meetings was a really contentious issue, and I've got the sense during bargaining that because we - and this is where it began, this is where it started, the conversations with Lou Malgari, and his extreme unhappiness with having to follow the right of entry procedures, and since then there have been a number of disputes and conversations around that expectation, and these disputes seemed to come as a bit of a response to that request, so that's the context and why they're included.


Thank you.


MR RABAUD:  Thank you.  Lou Malgari is not Ms Carovska is he, Ms Smith?


MR MINUCCI:  I mean, really ‑ ‑ ‑


THE COMMISSIONER:  It's unnecessary, thanks, Mr Rabaud.  You can put that in submissions if you like.


MR RABAUD:  No further questions, Commissioner.  No further questions, Commissioner.


THE COMMISSIONER:  Anything arising?


MR MINUCCI:  No.  If the Commission pleases, nothing arising.  I'd ask the witness be released.


THE COMMISSIONER:  Not before I'm done thanks.


MR MINUCCI:  My apologies, Commissioner.


THE COMMISSIONER:  I like to ask questions.  So, Ms Smith, you've said that there's two first aid officers on each shift?‑‑‑Yes.


Yes.  And how many people are trained in first aid at the Erskine Park site?‑‑‑I can't tell you without looking at the records on that.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


Do you know what it takes to train somebody in first aid?‑‑‑I wouldn't be clear for Erskine Park, but in previous memory it's a couple of days offsite and I've seen them doing it at Crestmead, so it's usually a day or two learning those skills.


I see.  You know that if the order is made it's a good month or so away before the declaration is - or the vote is declared.  You understand that, don't you?‑‑‑Yes.


So is there time to train other people in first aid?‑‑‑In first aid, yes, potentially.


Time to train non-union members in first aid?‑‑‑I would presume so.  I don't know how many union members or non-union members we have onsite on which shift or anything like that though.


Your evidence is that the first aid officers are union members, isn't it?‑‑‑Yes.  Yes.


So you do know that they're ‑ ‑ ‑?‑‑‑Everyone onsite could be union members.  I'm not sure who's not a union member or who is.


So why be giving evidence that the first aid officers are union members?‑‑‑Because I presume that they would want to take action in accordance with the PABO and that would leave ‑ ‑ ‑


But you don't know who the members are?‑‑‑I don't know who, no.


But if somebody said, "I'm not part of this and I'm happy to be a first aid officer", you could presumably go and train them in the month or so that it takes for the ballot to be declared?‑‑‑Yes.


The operations, are they five day operations or seven day operations?‑‑‑It's usually sort of five days but we do operate on Saturday to cover, so I think it's around the six day.  I don't know if we ever run on a Sunday.


So is Saturday a work day?‑‑‑No, I think that's considered overtime day.


So people don't ordinarily work on the Saturday?‑‑‑No.


It may be worked for overtime?‑‑‑Yes, and is commonly.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


So you've been told by Mr Arundel, have you, that you need seven days' notice of industrial action?‑‑‑Yes.  Yes.


Do you know why he's not giving evidence?‑‑‑No idea.


So what do you know about how much notice you would need?‑‑‑I know simple things like I sat in with customer service for an afternoon just to understand what they do as I cover customer service in my role as well, and hear the conversations and I understand the logistics of what they do.  And I understand our customers have cranes that they need to employ to be able to offload our products and manage on the construction site.  That's quite expensive and regularly (indistinct) and those sorts of things so to be able to manage the customer impacts of that and, you know, the people on the construction sites we need a bit of extra notice to be able to manage to ensure they're not unreasonably impacted.  I guess being able to, you know, communicate as much as possible there and be prepared.


So the notice to take industrial action is in working days and the notice for this order is - the default position is three working days, but it would appear to me that you're saying here that you need seven days?‑‑‑Yes.


Now if Saturday and Sunday aren't working days, is it true that you only need five working days' notice?‑‑‑Sorry, can you repeat that, I (indistinct).


Well you were saying that you need seven days' notice?‑‑‑Yes.


Is that calendar days?‑‑‑I was thinking full days.


You haven't said so.  You said the seven day notice period.  Are you talking about seven working days which would be nine calendar days?‑‑‑I hadn't really given it that much thought.  I just thought the more notice that we give the better able we can manage those things.


So if your evidence is that it's seven days, that's five working days isn't it?‑‑‑Yes, that's how I would understand that, yes.


Has your organisation - it doesn't have a relationship with a labour hire provider?  Do you use labour hire?‑‑‑Very minimally, yes.  We have an agreement I believe with Randstad and I think we have five or six currently.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


Do you think a contingency might be that if a portion of your workplace indicated that industrial action was going to be taken you might call upon Randstad to supply more workers?‑‑‑No, it's my understanding through Brendon Arundel and the operations managers that it's a three month lead time to be able to upskill operators on our machinery and things like that.


You can't bring anybody in?‑‑‑Not that are immediately able to work.  That's my understanding.


Until they're proficient?  I mean you must bring people in who haven't worked at your operation for three months.  Is it just that it would take them three months to be proficient?‑‑‑Yes.


Right?‑‑‑And able to do that safely.  And it depends on which shift and what they're actually doing and what requirements they have around crane loading and forklift driving and all of those things and which machinery they were operating and all of those things as well.


This is what you've been told?‑‑‑Yes.


Anything arising out of that, Mr Rabaud?


MR RABAUD:  No, Commissioner.


THE COMMISSIONER:  Anything arising?


MR MINUCCI:  No, Commissioner.


THE COMMISSIONER:  Right, thank you.  You're now excused then from your oath, Ms Smith.

<THE WITNESS WITHDREW                                                            [5.02 PM]


THE COMMISSIONER:  I need to foreshadow that if an order - if I decide to make an order that the Australian Electoral Commission has advised that it struggles with 20 working days and its preference is 25 working days.  Any views that you might have there on that, Mr Rabaud?


MR RABAUD:  I can't see any objection from our end, Commissioner.

***        LAURA AGNES SMITH                                                                                                             XXN MR RABAUD


THE COMMISSIONER:  I have seen some shorter periods go through but that's - it's my preference to try and accommodate the Australian Electoral Commission as much as possible.  If they say this is a postal vote is it?


MR RABAUD:  No, Commissioner.  I think it's proposed to be an attendance ballot.


THE COMMISSIONER:  I see, let me see.  Does it say that in the draft?


MR RABAUD:  No, generally speaking it's not actually included as part of the proposed draft order.  It's actually usually provided to the AEC in a request for information document that's given to the Australian Electoral Commission directly.


THE COMMISSIONER:  Yes, all right.  So if they're going to attend then your preference would be then for 20 working days.  Is that right?


MR RABAUD:  Yes, Commissioner.  However, I don't see an objection to amending that to or amending a draft order to reflect the 25 days.


THE COMMISSIONER:  Well the 25 days is relevant too because of the postal system now delivering less often, so I don't - my understanding is they don't require 25 working days for an attendance ballot.


MR RABAUD:  No, and generally speaking most of the protected action ballots that we actually do get put through are usually attendance ballots if that's what we nominate for, and they're usually conducted within the 20 day period.


THE COMMISSIONER:  Thank you.  All right, well the evidentiary case is before the Commission so I'm happy to hear further submissions unless there's anything - - -


MR MINUCCI:  No, if you'd like to hear from me first, Commissioner, or my friend.  I don't mind, it's a matter for the Commission.


THE COMMISSIONER:  What's the preference, you're the objector?


MR MINUCCI:  I am the objector but it's technically their application.




MR MINUCCI:  I don't really mind, I'm happy to go first.


THE COMMISSIONER:  We'll go with you first, Mr Minucci.


MR MINUCCI:  If the Commission pleases.  As the Commission's heard the application's been made on 21 June 2019 pursuant to section 437 of the Act.  Now 437(1) identifies that the bargaining representative is an employee who will be covered may make the application and the - as we've heard the AMWU was the default bargaining representative for the purposes of the negotiations.


Now section 437(3) relevantly requires the union to specify in the application the group of employees who are to be balloted and:


The question or questions to be put to the employees who are to be balloted including the nature of the proposed industrial action.


Once that application has been made in that form section 447 of the Act identifies when PABO must be made. Subsection(1) of section 443 require two things. First, an application having been made and second, that the Commission is satisfied that each applicant has been and is genuinely trying to reach an agreement.


The second limb is obviously the limb that is in issue for the objector's case and it is that limb that focuses on the applicant for the order, and in that case - in this case that is the AMWU.  It is, in my submission, and it is clear on the language of the provision that it is the applicant's burden to satisfy the Commission that it has been, past tense, and is at the time of the application genuinely trying to reach an agreement.  Stramit carries no burden or onus to do anything.  It's the AMWU that wants the PABO and therefore it carries the burden with this Commission.


Now in terms of the genuinely trying to reach agreement limb, there is no evidence before the Commission put by the - sorry, I withdraw that.  The submission by the AMWU do not deal with the issues and that is particularly in respect of the right of entry issues.  Ms Smith's evidence reveals that a number of employee delegates were - from the AMWU were present at the relevant site or during these meetings that have been identified and no evidence has been led from any of them.  Ms Smith has set out in detail in her statement which was not tested in any material respect in cross-examination, the relevant matters with respect to the right of entry issue.


The answer to that by my friend's submissions is set out at paragraph 14 and my submission is that it's a little bit thin on the ground.  Now the first aspect of that is that the suggestion is that this material is somehow irrelevant.  Well with respect, plainly a campaign by a union, not individuals within a union but a union either before or during bargaining in a particular state or across particular states in respect of a single employer could influence logically the consideration by the Commission as to whether or not that union was genuinely trying to reach an agreement with the very same employer.


Now if a union's agitating a particular issue, in this case it's right of entry with an employer either during or before bargaining commences.  It's quite clear that that matter could logically influence the way in which negotiations are being conducted in respect of a particular agreement.  Now the evidence here reveals without challenge that a month or two prior to the commencement of bargaining for the particular agreement here, the AMWU agitated aggressively against Stramit in relation to right of entry issues.  There were threats made and there were suggestions that they were not going to comply with the laws in the Act.


Now when those questions were asked about compliance or otherwise, the applicant's witness certainly - sorry, the applicant - that is the union's Ms Carovska struggled a little bit in my submission to answer those relevant questions.  Now what's happened in my submission in this case is that the evidence revealed a month or two prior to the commencement of bargaining we've got this issue about right of entry.  There's a response to a change is practice by Stramit about this right of entry issue.  They have said to the union right, you need to make sure that you are now complying with the relevant provisions of the Act.


Then we get to the relevant bargaining meetings. So we've got all the stuff that Mr Malgari and with respect that is completely unsavoury and completely inappropriate, all of that material, and what that does is it demonstrates that an official of the union, and we've seen that we're talking about the same union because the same corporation number is on the applications where he was involved, which is the same with the applications that are in this proceeding.  So we're talking about officials of the same union with that attitude.  The only way we can know the attitude of the union is by the attitude of the officials, and that in my submission is plain to see on the materials.


We then get to May 2019 when the bargaining officially really kicks off for the Erskine Park site, and low and behold these attitudes are expressed again.  Now the AMWU on 14 May said that right of entry is insulting.  They said that the right of entry provisions in the Act were designed to restrict entry, they didn't want to comply with those provisions and wanted Stramit to pay their members to talk to them about bargaining matters on work time.


Then on 27 May AMWU says again that it's an option for Stramit to comply with the right of entry provisions and again Ms Carovska couldn't answer that question in cross-examination and with respect the provisions provide no such option.  We then get to the dot point log of claims which have been attached and we get to 18 June 2019 meeting where there's another meeting and right of entry's raised again.  They're flabbergasted that we're not breaching the right of entry provisions.  Didn't have to provide documents to anybody else. Then they threatened Stramit and the suggestion that this is not a threat, in my submission, should be rejected outright.  If Stramit wanted a smooth process it would allow paid meetings.


In my submission, that is what that clearly is.  19 June, again, 2019 there was another meeting, right of entry is pushed again and they've intimated again in that meeting - - -


THE COMMISSIONER:  Well this if Stramit wants a smooth process, to who do we have that attributed to again?


MR MINUCCI:  As I understand it, it's in the bargaining notes.  I don't think it's attributed to a particular person but as I understand it, it's in the minutes of the meeting at page 24 or thereabouts about.


THE COMMISSIONER:  Well we didn't get to there.  I know that you took me there - - -


MR MINUCCI:  I never put - I didn't put the proposition because Ms Carovska said I don't know who was at the meeting or who said it, so I didn't put it to that particular witness on that basis.


THE COMMISSIONER:  How am I to deal with that as a fact?


MR MINUCCI:  You can simply deal with it on the basis that the notes reflect it or reflect what they reflect at page 24 or page 25.


THE COMMISSIONER:  These are notes that are not agreed.


MR MINUCCI:  It doesn't matter, in my submission, because the only - the witness that the Commission has before you is one person who says I was there and adopts the notes and a union who had other delegates, other than the person who's in Scotland who don't produce that material and that material's not challenged in cross-examination.


THE COMMISSIONER:  We also don't have the author or anybody who is said to have said these words.


MR MINUCCI:  No, but we've got the person who was at the meeting.


THE COMMISSIONER:  Well who does she say said these words?


MR MINUCCI:  Well she doesn't.  She wasn't asked that question.


THE COMMISSIONER:  Well I'm interested now.


MR MINUCCI:  Certainly I can get those instructions if that's of some assistance, Commissioner.




MR MINUCCI:  Sorry, Commissioner, just (indistinct).  Commission pleases, just based on what the witness has said, I'm not going to pursue that submission in respect to those specific words and I respectfully withdraw it.




MR MINUCCI:  Then we get to the end of 19 June which is where I was, I apologise, and there's further pressing for the bargaining rights in the paid meetings.  References again to the fact that the right of entry provisions are not being complied with and there's intimations again that other companies paid for workers to meet the union in breach of the provisions and that other companies don't comply with the right of entry provisions and Stramit should do the same.


Now all of that is consistent, in my submission, with the prior conduct immediately prior to bargaining by the union and the conduct of the union in respect of its negotiations with Stramit.


THE COMMISSIONER:  Mr Minucci, the union could at any point in time and even during the life of an approved agreement, I mean if an agreement is made tomorrow - - -




THE COMMISSIONER:  - - - and it's approved, the union could write every day couldn't they and ask for agreement to entry that is more flexible than the right of entry provision.  They could ask that every day for four years, couldn't they?


MR MINUCCI:  Of course they could.  Of course they could.


THE COMMISSIONER:  So what's the difference with them asking before an enterprise agreement is made?


MR MINUCCI:  Well in my submission what - that is a possibility but it's not the evidence that's here.  What we're talking about is agitating an issue during bargaining to not comply with particular provisions, there's pushback on - - -


THE COMMISSIONER:  We know that they were agitating since February.


MR MINUCCI:  Yes, there's pushback so this is - we're then into the bargaining process.  There's pushback, and this is the point I was getting to.  We've had, you know, close to maybe nine or 10 hours of discussion maybe at best with very little progress in my submission, and then the toys are thrown out of the pram and the application's made here.  That in my submission speaks some lack of genuineness in respect of their ability of wanting to reach agreement, to justify the making of this application.  So they can't make this application in my submission if there's any prospect, this application being made to try and further that particular agenda when they don't meet the threshold.


The intention for making this application has got to be in relation to the bargaining.  If there's an anterior question or an anterior issue that they are agitating, that is not permitted as a reason why this application is to be made, and that's the point.


THE COMMISSIONER:  Well isn't the test that I have to be satisfied that they're not genuinely bargaining?


MR MINUCCI:  No, no - the test is not that you have to be satisfied that they're not genuinely bargaining.  The test is the opposite, and it's slightly different, Commissioner, with respect.  The applicant has to satisfy you that they are genuinely trying to reach agreement.


THE COMMISSIONER:  That's right.


MR MINUCCI:  But that's slightly different in my submission to being positively satisfied that they are not.  Slight different but important.


THE COMMISSIONER:  Yes, but you're saying because they're doing this it demonstrates that they are not genuinely bargaining.


MR MINUCCI:  No, it demonstrates that there is an issue in respect of genuine bargaining.  I will put it as high as that they're not genuinely bargaining but the Commission doesn't have to be satisfied of it to that extent.  What the Commission has to be - can consider in respect of that issue, if there is a doubt that that issue creates in terms of the state of satisfaction, no finding has to be made that is that they're not doing that, but if there's a doubt in respect of the state of satisfaction created by this issue, that is the right of entry issue, then the applicant hasn't passed the threshold in the Act.


THE COMMISSIONER:  Well it's as simple as I must make the order if I am satisfied that they have been genuinely trying to reach an agreement.


MR MINUCCI:  Yes, that's right.




MR MINUCCI:  So that deals with that and we've dealt with part (b) of paragraph 14 and I won't labour it but we've dealt with the fact that a national campaign can quite clearly cross state lines and all the rest of it, and that's not, in my submission, a reason as to why that evidence shouldn't be considered by the Commission.  Again, the same reasoning applies to any suggestion that we're talking about predating or anything like that. Quite clearly that a strategy can run for a period of time prior to an agreement that we're talking about and that can influence the behaviours in the negotiations that we're considering for the purposes of this application.


Just noting the time.  The next - - -


THE COMMISSIONER:  I'm not limited by time.


MR MINUCCI:  That's okay, Commissioner, then I'll continue, my apologies.


THE COMMISSIONER:  It's an important issue.  We put it on as soon as we can.


MR MINUCCI:  No, no, no, I appreciate it.  It was more just I didn't want to hold the Commission or anyone else up.  I will continue.  In my submission, what the evidence does that is before the Commission, is that it leaves the issue hanging in the air, which is precisely what I was talking about before.  My submission is that it demonstrates that they're not but really I don't have to get that far to be successful to stop this application.  There's three meetings the toys have been thrown out of the pram, as I've used the expression, and it's clear in my submission that that's been done at least in whole or in part by reason of the fact that this right of entry issue's being agitated and not being complied with.  They're not getting what they want and therefore they've gone right we're going to file the PABO, in my submission.


Now moving then next to from - if the Commission then is satisfied that they are genuinely trying to reach agreement, the next issue is in respect of the clarity of the questions posed in the protected action ballot, and the Commissioner referred to me previously to some other decisions that had been made and in particular decisions of Gostencnik DP and there's a decision of Supaloc referred to in the applicant's outline and I'll deal with that shortly.  But the AMWU in respect of part (d) of our outline of submissions on the question of clarity essentially says two things.  One is that the clarity of the questions identified in - for the proposed ballot in section 437 don't need to be the same or of the same specificity as contemplated by section 414 of the Act.  Then they go on to say that the questions are sufficiently clear in the way that they're currently framed.


In support of those observations they rely on the observations of Gostencnik DP and Supaloc, and the Commission has been provided with a folder of materials.  The decision relevantly is at tab 12 of those materials.  Now that decision first is not binding on the Commission as presently constituted.  Secondly, with respect, it's my submission that the Deputy President was incorrect in his analysis and that he failed to take into account the relevant High Court authorities that concerned the principles of statutory construction and the interpretation of the same expression used in the same part of an Act.


Now part 3-3 of the Act is headed "Industrial Action".  Section 406 is titled, "Guide to this part", and in that part of the Act it says it:


Deals mainly with industrial action by national system employees and national system employers.


So what we're talking about is a part of an Act that applies to a specific topic and each of those divisions in the Act then deal with particular aspects of that particular topic.  Division 2 or part 3-3 defines protected industrial action and in particular it identifies the common requirements for industrial action, as the Commission would be familiar with.  That is those requirements that are necessary for action to be protected industrial action and gain those protections.


Section 404 identifies the notice requirements in respect of those matters and section 404(6) uses the phrase:


Nature of the industrial action.


Now part - and this is noted I recall at paragraph 25 of the Deputy President's decision in Supaloc.  So in providing the notice to an employer under section 414(6) it's understood that there must - it's well understood, in my submission, that appropriate notice must be given to an employer to allow the employer to sufficiently understand the nature and the extent of the action that's proposed, such that they can make relevant preparations or take counter measures.


It needs, in my submission, to say - to at least identify under 414 the type of work performed, when, how long the action will go for, which class of employees, the days, the roster periods and things of that kind.  There is - - -


THE COMMISSIONER:  Where do you say that?


MR MINUCCI:  I will - there is a decision - a Telstra Full Bench decision and I'll turn up the citation for the Commission in respect of that.


THE COMMISSIONER:  So you're saying it needs to go so far as afternoon shift will be taking one hour stoppage.


MR MINUCCI:  Well not necessarily afternoon shift, but certainly the class of employees at the very least.  That is the manufacturing part will be taking action at this point.  The industrial part will be taken at this point, for the purposes of this example.  Certainly for section 414 of the Act in the notice, that would be my submission.  That is because that would allow the understanding of the nature of the action to be - to be understood.


THE COMMISSIONER:  So do you say that under 414 and 437 it needs to marry?


MR MINUCCI:  Yes, I do.


THE COMMISSIONER:  So have you seen an order that has that specificity?


MR MINUCCI:  No, I haven't but that doesn't mean that that's not the position because there's no authority that deals with this particular point, other than the observations of Gostencnik DP which in my submission don't take into account the High Court authorities that I'm about to refer the Commission to.  That is - and I do that briefly at tab 22 at paragraph 65.  The High Court observed that a consistent meaning should ordinarily be given to a particular term wherever it appears in a suite of statutory provisions.  Refers to other relevant authorities that are identified at tab 20 and 21 of the folder.  Relevantly for tab 20 at paragraph 11 and tab 21 at paragraph 29.


The provision from the Fair Work Act albeit in respect of another part of the Act have been treated in the same way in the decision of the Fair Work Ombudsman v Maritime Union of Australia in the Federal Court at tab 13, with the relevant references at paragraph 302-304, and that dealt with the use of the phrase "intent to coerce" under the adverse action regime, but it appeared in different parts of that part and the expression was given the same meaning.  It's on that basis, in my submission, that the phrase used in 414, 437 and 443, which is the same must be treated in the same way.


In Supaloc as well, I'll just briefly take the Commission to this point, it refers to a possible tension between the decision of John Holland of the Full Bench and the UFU v Country Fire Authority.  In my submission - and that's done or referred to at paragraphs 9 to 11 of Supaloc.  In my submission there is not necessarily any tension between the two decisions and I say that because - and the relevant extracts that may be easier for the Commission at tab 12 is the decision of Supaloc and if the Commission turns to paragraph 9 of that decision, the Deputy President set out the relevant extracts of those two decisions there.


In my submission, the requirements from the United Firefighters Union v Country Authority paragraph that's at 10, can be read consistently with the observations of the Full Bench of Fair Work Australia v John Holland, because the phrase in John Holland at paragraph 9 are set out therein, that that is:


The section requires the question should describe the industrial action in such a way that employees are capable of responding to them.


That is by reference to a description of the nature of the industrial - proposed industrial action provision.  What that actually means or that phrase is taken to mean in my submission is precisely what's set out in United Firefighters Union v Country Fire Authority.  Now if that's accepted and the observations of United Firefighters Union v CFA are correct, which in my submission they are, it requires the protected action ballot provisions or provisions of this ballot require more than what has been given.


It requires more, in my submission, because we're talking about employees, and in this case employees who are - where English is a second language, they're slightly older and there's some who are only functionally literate, putting all that into the mix adds, in my submission, strength to my argument because it requires something more than we're taking a strike or we're taking a stoppage, and that's in circumstances where the union's own witness couldn't identify the difference between those two particular terms.  If the union don't know the difference, how could it possibly be expected for employees who are 45 to 55, Vietnamese, Filipino, limited English, functionally literate to be able to comprehend that fine distinction such that they're able to vote and approve those particular types of action.


THE COMMISSIONER:  Well could it be said that it's relevant to - the difference between the stoppage of work reference and the strikes is relevant to the period of time>


MR MINUCCI:  It might be but we're speculating because it's not set out in the proposed questions.


THE COMMISSIONER:  Yes, but if somebody reads two hour stoppage of work means that I go to work, I stop for two hours but I work the rest of the day, as opposed to 24, 48, 72, they're full days.


MR MINUCCI:  Yes, they are but that doesn't answer the question of well, they might be full days or they might be indefinite or whatever but are we talking about the same thing?  What's the difference between a stop - is a strike purely linked by reference to the temporal connection, that is we're saying a strike is because it lasts a day.  That is a possibility, I concede that. There's no issue about that but there's no explanation about that or justification for the distinction between the language that's been used in these proposed questions.  In my submission it should be least incumbent upon the representatives of these particular employees to understand why particular provisions are cast in this way other than saying it's a template and I didn't think about it.


What we're talking about is employees who are on the evidence having difficulties in respect of these issues - - -


THE COMMISSIONER:  Well Mr Rabaud, you're on notice there.  If you want to take some instructions there as - while Mr Minucci's continuing as to whether or not you want to alter some of the questions.  Have a think about that.


MR MINUCCI:  I should say too, Commissioner, just on your point about that temporal connection issue.  If the Commission looks at the relevant questions that are asked, in terms of a work day there's an eight hour stoppage, a 12 hour stoppage and then at 24 hour strike.  There's no suggestion that employees are working 24 hours, such that they're taking a 24 hour strike.  So in my submission it's unlike as to why an eight hour or a 12 hour which would encompass most work days essentially just considered a stoppage versus why we've got a 24 hour or a 48 hour strike.  It seems to me to be a bit confusing to say the least.


In relation to then the further questions about the nature of where there's the expression that's used is the indefinite or periodic partial work bans, if my construction of the phrase "the nature of the industrial action is accepted", that is it needs to be consistent between 414, 437 and 443, then despite the Deputy President's observations in Supaloc with respect, it is far too broad such that the individual employees can vote on it.  Because they're not understanding the nature of the action.  What does periodic mean?  Are we talking about a part of day, sections of a day, which parts of the day, which shift?  These are, in my submission - is it one hour, is it four, is it less than a day, is it more than a day?


That becomes particularly stark as a proposition when the Commission looks at all those previous questions that have got specific temporal limits.  If it was so easy for the AMWU to identify these particular temporal limits set out in those questions, why couldn't it do it for that?  In my submission, that creates confusion and there's no suggestion that these aren't deliberate choices in language.


In relation to the other matters we respectfully refer to parts (e) and parts (f) of our outline of submissions and we also refer to the observations of a recent case we only discovered this morning which has apparently only been out today, which is a Full Court decision of the Federal Court 2019 FCAFC 99 at paragraph 14.  Simply identifies the discretion that's inbuilt in the Commission in section 443(5) about extending the notice period.  Now I don't press a submission for seven days but I do press it for five, and I press it for five days as a notification period for the relevant matters that have been identified in the evidence, in particular the issues about ensuring employees are proficient and there was an answer by Ms Smith that talked about ensuring they were able to operate the machinery safely.  Also I note that from Ms Smith's statement at paragraph 68 onwards identifies the relevant matters that go to the Commission's consideration on this issue.


I also note that the DP World case that I referred the Commission to at first instance it was a decision of Bull DP of this Commission and it concerned relevantly and his Honour exercised - the Deputy President exercised his discretion to extend the notice period by reference to issues with supply chain and by reference to issues with further on issues with the clients.  That was certainly part of the exercise.  Here we've got similar issues.  We've got a 24 to 48 hour turnaround, enterprises of the clients, the patterns and the shifts of the cranes and things that might change.


There are safety matters identified in respect of the first aid individuals albeit there is time between now and the ballots to train someone.  If we can find someone that's not a union member.  Of course we don't have that information as to whether someone's a union member or not.  It wouldn't be necessarily appropriate but we can certainly do that part.  It's more about the downstream effects that have been set out and the difficulties in ensuring that that is managed and in my submission five days for an action of this kind is not prohibitive in any stretch and would otherwise be appropriate.


THE COMMISSIONER:  Well the test is not whether there's going to be some inconvenience to the employer.  The test is whether there are exceptional circumstances justified.  So I don't see any of that language used in your submissions.


MR MINUCCI:  I apologise for the lack of the - the language is not used but it's certainly - exceptional circumstances, simply something that's just out of the ordinary.  That's what it means.


THE COMMISSIONER:  Exceptional circumstances justifying.


MR MINUCCI:  Yes, but that is it's out of the - circumstances that are out of the ordinary that would warrant or justify, as the word is used, an extension of time from three days to five days and in my submission those matters are the matters that we've been discussing recently.  What you asked Ms Smith about in your follow up clarification questions, Commissioner, and also the matters set out from paragraph 68 of the evidence onwards in her statement.


THE COMMISSIONER:  Why should I have any regard to the submissions at (e), paragraphs 37 and 38?


MR MINUCCI:  Is that in respect of the first aid matters?




MR MINUCCI:  If I might just take some - - -


THE COMMISSIONER:  What relevance does it have at all to the issuing on an order?  Isn't it another matter for - if there are safety concerns that's when you can go and ask for a suspension of the industrial action?


MR MINUCCI:  Yes, you can but in my submission it's also relevant as part of the reason or rationale as to why particular clarify in particular questions might be necessary.


THE COMMISSIONER:  But it's not one of the considerations in making an order.


MR MINUCCI:  No, it's not one of the relevant considerations but one of them is in respect of what prescribes the nature of the action.  In informing the nature of the action one is always going to have a look, in my submission, to the nature of the enterprise, what's going on and the particular factors that are relevant for the purposes of that enterprise.  The matters in part (e) simply go to that and go no further than that.


THE COMMISSIONER:  Did you say you wanted to obtain instructions?


MR MINUCCI:  If I might just take one moment.  If the Commission pleases, I don't have any further submissions.


THE COMMISSIONER:  Thank you.  You'll be given an opportunity in reply.


MR MINUCCI:  Thank you.


THE COMMISSIONER:  Yes, thank you, Mr Rabaud.


MR RABAUD:  Thank you, Commissioner.  As my friend rightly pointed out, obviously the consideration for the Commission does sort of relatively - are relevantly pertained to section 437(3) and 443(3) of the Act, being that the Commission must be satisfied that the applicant has been trying to reach agreement with the respondent and obviously that an application has been made.  It's clear that the primary contention in this case is whether or not the applicant has been trying to reach agreement - - -


THE COMMISSIONER:  Well has been and is, that's the test.


MR RABAUD:  Has been and is, yes, that's correct, Commissioner.  My submission is that the evidence before you does demonstrate that the applicant has and is trying to reach agreement.  There have been a number of meetings between the AMWU and Stramit and in those meetings discussions have taken place regarding the logs of claims that are there, the types of things that employees would seek to have included in any proposed agreement.  There's evidence before you that suggests that these negotiations and conversations are ongoing and as recently as today Ms Smith had confirmed that she had corresponded with Ms Carovska in trying to take steps to obviously further negotiations moving into July beyond this application.


Ms Smith also confirmed that some progress had been made some two days before this application was made and our submission is that before this application was made there was some progress.  This application was made on 21 June and the AMWU has also sought to continue negotiations and held a subsequent meeting on the 24th and there are further meetings planned to continue to negotiate and to try and reach agreement for the proposed agreement.


I know that Mr Minucci has pointed to the fact that there is a lack of clarity in relation to the questions that are proposed.  I would direct the Commission to section 470(3) of the Act which actually does provide a definition for a partial work ban, and we say that Gostencnik DP was correct in saying that the nature of the industrial action was correctly identified both in Supaloc and it's consistent with the decision that came out of John Holland in that the wording and the nature of the industrial action to be specified must be capable of being understood, and is sufficient in clarity to form part of the questions to be balloted to those employees.


We continue to submit that these questions are clear and regardless of the age of employees that are employed at Stramit, there's no evidence that would suggest that these employees are not capable of responding to the questions that are proposed.  I do take on board the fact that you had drawn attention to the particular wording and while we submit that the stoppages of work phrase included in the proposed questions and the use of the word strike, we say that they're sufficiently clear.  However, in the alternative should the Commission find that this wording is not clear I do have instructions to file an amended draft order which would clarify we would be willing to consider filing an amended application that rather than the use of the word strike, we would change this to clearly stoppages of work.  This may alleviate some of the contentions that's been put forward and advanced by the respondent.


THE COMMISSIONER:  Well on that, do you say then that questions 7, 8, 9 and 10 would say 24 hour stoppages of work, 48 hour stoppages of work?


MR RABAUD:  Yes, and obviously at question 10 we would be willing to amend that to read, "Stoppages of work for a period of one week".  And additionally at 11, "Indefinite strike" would be "Indefinite stoppages of work", Commissioner.


THE COMMISSIONER:  So there's no use of the word strike at all.


MR RABAUD:  Yes, that would be changed to stoppages of work, yes, that's correct.




MR RABAUD:  In regards to further advanced submissions from the respondent in relation to indefinite or periodic, periods we say is clearly understood to be not a full day but for periods of time, but such specificity is open to us to obviously give notice of the protected action once it's been declared and an order has been made and the vote has occurred.  But any notice that's given in accordance with 414 of the Act would contain such specificity and in the event that it doesn't contain such specific clarity, it's open to the respondent to file 418 orders to say that the nature of the industrial action is not endorsed by the vote that had occurred.


By the same token we say that if there's concerns about safety concerns, if there is a risk to health and safety the respondent can also file to seek that the protected action be suspended in accordance with 424 and these are relevantly considered in different provisions of the Act.  However the decision before you today pertains clearly to has the application been made and has the applicant genuinely been trying to reach agreement, and is, sorry.


Furthermore, and I do rely on my written submissions in relation to this but my submission is that the right of entry contention that is advanced by the respondent, the applicant can walk and chew gum at the same time.  It's clear that there has been some discussion about how particular union officials feel about the right of entry but that doesn't in and of itself suggest that we haven't been trying to reach agreement.  What it does say is that conversation has been taking place.  My submission is that there is evidence clearly before you that the AMWU has taken reasonable steps to continue to bargain with the respondent and as such is genuinely trying to reach agreement with the respondent.  Nothing further on that note, Commissioner.


THE COMMISSIONER:  What do you say relevant to the request for five working days' notice?


MR RABAUD:  Yes.  So I actually do rely on my written submissions, Commissioner, in that the position that's been advanced by the respondent is subject to concerns that any protected action that would occur will obviously have some sort of effect on rostering arrangements and their regular operations.  My submission is that protected action is of its nature intended to cause disruption.  I don't think the respondent likes this, however they say that obviously their rostering arrangements and their regular operations may be impacted.  We say that that's the regular occurrence in protected action.  It's something that's likely to happen.  I wouldn't say it's part of the - out of the ordinary.  I certainly wouldn't say that it's an exceptional circumstance that would warrant the notification time to be extended to five working days.


THE COMMISSIONER:  Well parties, I can say this, in the last six months or so I've granted orders allowing for four days where that was fly in/fly out work in Darwin.


MR RABAUD:  Quite correctly, Commissioner.


THE COMMISSIONER:  I made those orders, I haven't yet published the reasons for the decision but I think at least one of those was by consent in any event.  So there I found that there are exceptional circumstances justifying the period being extended to four days.


MR RABAUD:  Yes, Commissioner.


THE COMMISSIONER:  So what do you say relevant to this matter?


MR RABAUD:  Relevant to this matter, the position that's been advanced by the respondent is that I have customers and that any protected action might effect their ability to continue to fulfil customer orders.  We would say that this isn't exactly out of the ordinary.  It's quite typical of protected action to disrupt them in that particular way and the circumstances that are foreshadowed by the respondent don't constitute exceptional circumstances that would warrant a five day period.


In fact we would suggest that the three working days is sufficient enough time for the respondent to make relevant preparations to deal with any protected action, and as you quite rightly suggested that between now and when the vote occurred if there was any impact in regards to first aid officers being present on-site, there is sufficient opportunity to train non-union people to fulfil those - to fill those obligations on-site.  But we would stick to the proposed order and that three working days is sufficient time for the company to make relevant preparations.


THE COMMISSIONER:  Thank you.  Anything else?


MR RABAUD:  Nothing further, Commissioner.


THE COMMISSIONER:  Thank you, Mr Rabaud.


MR MINUCCI:  If the Commission pleases, just briefly in reply.  The first thing I wish to say in relation to the suggestion about the discussions and meetings and the like, process doesn't equate to genuineness.  So simply because there's an agreement about process or that people are actually going to a meeting, doesn't foreclose the possibility that they're going to meetings with ulterior purposes, for ulterior reasons, to pursue particular agendas that may or may not fall foul of the satisfaction requirements.  So simply because there are meetings doesn't get the applicant over that threshold.


In respect of the definition of a partial work ban in section 470, that's not the complaint.  The complaint is in respect of the issue of periodic.  That's previously discussed and set out in our submissions.  What my learned friend did in his submissions is he conceded that there is a higher standard under section 414 of the Act, with respect to the phrase "nature of the industrial action".


THE COMMISSIONER:  Well I think he suggested that you nominate it so relevant to indefinite or periodic bans on overtime, a the time of giving the notice you might say there's a periodic ban on these dates.


MR MINUCCI:  That there - well I think it went slightly further than that.  In my submission, that it went further than that because my note is that it went to not just these days but it might be kinds of work or the particular hours or things like that, that would be included as part of that.  That there is a concession, in my submission, that if my construction argument is accepted in respect of that phrase means that questions 12 and 13 go, because they don't take it to that level.  There's been quite plainly a concession that they don't go to that point at this stage.


If the Commission please, I might just take one moment to see if there's anything further.


Sorry, Commissioner, just one further thing in relation to the issue of the extension of time.  It's not just customers or not just rosters.  It's quite clear in the evidence that there are on supply chain issues, there's the example that was given to the Commission about the crane and how that might affect logistically the on sellers, for example, and it goes further than simply a roster change.  The evidence is set out and has been led in respect of those matters.  Unless the Commissioner has anything further from me, those are the submissions.


THE COMMISSIONER:  Well if you're right, Mr Minucci, on questions 12 and 13, might I then throw it open to the union if I'm with you on that, that I should then make an order that opens up 12 and 13 to a very large list of questions that says one hour periodic bans on overtime, two hour periodic bans on overtime - - -


MR MINUCCI:  That may well be - - -


THE COMMISSIONER:  - - - one hours bans, sorry, not two hour bans.


MR MINUCCI:  If the Commission is with me on that then yes, I couldn't say no to that because what that does is it creates the clarity that I'm seeking by reference of  my submissions.


THE COMMISSIONER:  All right, so Mr Rabaud, if after considering all of the material before me I'm with the respondent on that issue, do you allow me to provide some additional questions there that you want asked of your members?


MR RABAUD:  I'd have to take some more instructions but at this stage I wouldn't - I have no instruction but I wouldn't object to it, if you do side with the respondent in that particular matter.


THE COMMISSIONER:  Well how many do you think I would need on the overtime issue?  How many separate questions?


MR RABAUD:  I suppose I'd have to get instructions in relation to the particular roster arrangements that actually apply at Stramit to make sure that any period of overtime would be sufficiently covered by protected action, if that's the kind of action that employees would seek to undertake.


MR MINUCCI:  If the Commission pleases, certainly from the respondent's perspective, if it's of any assistance, I'm comfortable for that to be done subject to the Commission's view in writing. For my friend to email to the Commissioner's Chambers setting out those matters with an opportunity for the respondent to say what it might need to in respect of those matters but I have no issue with it being done in that way.


THE COMMISSIONER:  All right, well you can do that by midday Monday, Mr Rabaud.


MR RABAUD:  Yes, Commissioner.


THE COMMISSIONER:  All right, there's nothing then parties?


MR MINUCCI:  No, if the Commission pleases.


THE COMMISSIONER:  Thank you for your representation today everybody and to our witnesses.  I will reserve my decision and we are adjourned.

ADJOURNED INDEFINITELY                                                           [5.52 PM]



JACQUELINE CAROVSKA, AFFIRMED........................................................ PN27

EXAMINATION-IN-CHIEF BY MR RABAUD................................................ PN27

CROSS-EXAMINATION BY MR MINUCCI.................................................... PN61

RE-EXAMINATION BY MR RABAUD........................................................... PN279

THE WITNESS WITHDREW............................................................................ PN288


LAURA AGNES SMITH, SWORN.................................................................... PN294

EXAMINATION-IN-CHIEF BY MR MINUCCI............................................. PN294


CROSS-EXAMINATION BY MR RABAUD................................................... PN329

THE WITNESS WITHDREW............................................................................ PN488