PN407

THE COMMISSIONER: Good morning. Ms Douglas, anything overnight that we need to deal with?

PN408

MS DOUGLAS: No, thank you.

PN409

THE COMMISSIONER: Thank you. Ms Pole?

PN410

MS POLE: No, thank you.

PN411

THE COMMISSIONER: I understand we're calling Mr Spencer.

PN412

MS POLE: Yes.

PN413

THE COMMISSIONER: Very good. Mr Spencer, it's Commissioner Johns, can you hear and see me?

PN414

MR SPENCER: Yes, I can, Commissioner.

PN415

THE COMMISSIONER: I'm going to administer the affirmation to you.

<MICHAEL SPENCER, AFFIRMED [1.20 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [1.20 PM]

PN416

THE COMMISSIONER: Do you have a copy of your witness statement there?‑‑‑I do.

PN417

Are there any amendments you'd like to make to the witness statement?‑‑‑No. Thank you.

PN418

Are you sure? Would you like to turn to paragraph 10? It says on 3 February. I think you mean 2, don't you?‑‑‑Yes, you're absolutely correct. Thank you.

PN419

Are there any other amendments you'd like to make to the witness statement?‑‑‑No.

*** MICHAEL SPENCER XN THE COMMISSIONER

PN420

Subject to that amendment, are the contents of your witness statement true and correct?‑‑‑Yes, they are.

PN421

And would you have me receive it as your evidence in these proceedings?‑‑‑Yes, I would, Commissioner.

PN422

Thank you. The witness statement of Michael Spencer is exhibit 12 in the proceedings.

EXHIBIT #12 WITNESS STATEMENT OF MICHAEL SPENCER

PN423

THE COMMISSIONER: At paragraph 11, Mr Spencer, it refers to a document summarising and explaining the differences between the previous 2018 agreement and the proposed new agreement. I'm wondering whether I could be provided with a copy of that document?‑‑‑Yes, you can. Yes.

PN424

MS POLE: Yes, certainly.

PN425

THE COMMISSIONER: If you could, Ms Pole, just arrange for your instructors to email that to my chambers and to Ms Douglas.

PN426

MS POLE: Certainly.

PN427

THE COMMISSIONER: Now, Mr Spencer, if you wait there, Ms Douglas might have some questions for you.

CROSS-EXAMINATION BY MS DOUGLAS [1.22 PM]

PN428

MS DOUGLAS: I do, Commissioner. Thank you.

PN429

Good morning, Mr Spencer. I firstly want to confirm from you that the bargaining meetings which occurred in about the middle of February, from 15 to 18 February, those bargaining meetings were not recorded in any minutes, were they?‑‑‑No, there were no minutes, that's correct.

PN430

Now, after the bargaining meetings on Monday, 21 February 2022, there were approximately nine documents which were emailed presumably to all the bargaining reps?‑‑‑That's correct, Ms Douglas, yes.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN431

That is shown in your attachment, MS4. And, so, would you be able to confirm that the collection of documents, which were emailed on Monday the 21st totalled over 100 pages when each of the documents were collated?‑‑‑I have no precise knowledge of the number of pages, but I've no reason to doubt your assertion.

PN432

Thank you. Now, can I confirm that that collection of documents, approximately nine, were they the same documents which were posted to a portal?‑‑‑Yes, they would've been posted on the portal as well.

PN433

And that happened for the commencement of the access period; is that right?‑‑‑They would have been updated to incorporate feedback and comments from the bargaining reps that was received up to 3 pm on the Tuesday, and then once those changes had been made they would've been uploaded onto the portal ready for the commencement of the access period the following morning.

PN434

And, so, are you saying that there were in fact changes made to the documents following this ‑ ‑ ‑?‑‑‑Yes. Yes, there were.

PN435

Therefore the documents which were uploaded did include the same policy documents, although possibly amended ‑ ‑ ‑?‑‑‑Yes.

PN436

‑ ‑ ‑that had been circulated on Monday the 21st?‑‑‑Correct. Yes. There were minor amendments.

PN437

Thank you. Now, were those documents circulated for the purpose of the access period and the vote, were they also emailed to employees who would be voting?‑‑‑I can't be sure as to whether all of those attachments as such would have been emailed to all employees. Certainly there would've been communication to the employees to refer them to the portal.

PN438

And, now, the portal is - I've not accessed it myself, but just trying to understand if there's encryption involved in accessing the documents on the portal?‑‑‑There is for the period of the vote, but not prior to the vote, so for the access period there's no encryption. Obviously for the purposes of the vote, people can only vote once, and, so, there needs to be a method of ensuring the integrity of the votes. So, people need to provide a PIN number and that sort of thing. That's provided to them, an individual PIN number.

PN439

THE COMMISSIONER: Sorry, I'm a little bit confused about the issuing of these policies?‑‑‑Yes.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN440

It seems to me as the evidence is falling out that the meetings that occurred mid-February had a dual purpose?‑‑‑Mm-hm.

PN441

They were bargaining meetings to discuss the proposed enterprise agreement, and because everyone was together there was a dual purpose, people were also looking at and reviewing policies that belonged to the company. But the policies have nothing to do with the enterprise bargaining; isn't that right?‑‑‑Commissioner, some of the policies, you're quite right, have nothing technically to do with the enterprise agreement. Some of them are an expansion of what's in the enterprise agreement, so, for example, you know, if we're talking about different types of leave, so parental leave and the like there would be an expansion within our leave policy.

PN442

Yes. But, when I look at clause 12.3 of the enterprise agreement which deals with the interaction between company policies and procedures ‑ ‑ ‑?‑‑‑Yes.

PN443

‑ ‑ ‑it's the agreement that prevails, so the policy documents are not incorporated into the enterprise agreement. You didn't need to provide them as a part of the access period. I mean, they might supplement what is in the enterprise agreement in terms of policies and procedure, but they don't form a binding obligation under the enterprise agreement, then I think it's unfortunate that you've sort of conflated policy review with enterprise bargaining, but it seems as though that's what you did?‑‑‑You're absolutely correct, the company still has discretion in relation to those policies. It is what we did, because that's what the room presented to us that they were interested in. So, they wanted some changes to some policies as well as to the enterprise agreement.

PN444

And, Ms Douglas, I'll hear from you about this later, but it just seems to me to the extent that you're dealing with all this policy stuff, and to the extent that you provided access to them, it's completely irrelevant to the questions that are before me. Anyway, we'll hear from Ms Douglas and Ms Pole about that, I suspect. Sorry, Ms Douglas.

PN445

MS DOUGLAS: Commissioner, I can't see from my end Mr Spencer. I wonder if that's an issue?

PN446

THE COMMISSIONER: I think if you expand your screen. I just had to do the same thing. I don't know whether you can expand your screen or ‑ ‑ ‑

PN447

MS DOUGLAS: Sorry, if I could just have a minute, yes, and I'll try and fix the ‑ ‑ ‑

*** MICHAEL SPENCER XXN MS DOUGLAS

PN448

THE COMMISSIONER: The alternative - it does look as though the camera has moved a bit. I don't know whether you can, sort of, swing - Ms Pole, if you can swing the camera, sort of, back towards ‑ ‑ ‑

PN449

MS POLE: I can't swing the camera, but what I can do is switch seats. Would that be assisting?

PN450

THE COMMISSIONER: I think that would be useful, yes.

PN451

MS POLE: Just one minute to shuffle around, hang on.

PN452

THE COMMISSIONER: Yes, Ms Pole, you're directly in the centre of my camera, but - thank you.

PN453

MS POLE: Sorry, just give us a moment.

PN454

THE COMMISSIONER: Ms Douglas, is that better?

PN455

MS DOUGLAS: Just a ‑ ‑ ‑

PN456

THE COMMISSIONER: That's much better. I can see everyone now.

PN457

MS DOUGLAS: Apologies, I have done something from my end which is not better, but that's my issue. Just a moment, and I'll try and work out how to ensure I see you properly. Apologies, Commissioner, I have not used Microsoft Teams enough to be too familiar with it.

PN458

THE COMMISSIONER: That's all right. Take your time, please.

PN459

MS DOUGLAS: Thank you, there we are.

PN460

Mr Spencer, you commented just earlier that the - I presume you were talking about the employee bargaining representatives were wanting the certain issues dealt with in the policy, and that's why they were the subject of discussions?‑‑‑Correct.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN461

Were the policy documents uploaded to the portal prior to the bargaining meetings?‑‑‑No, they weren't.

PN462

THE COMMISSIONER: I'm sorry, I'm going to have to interrupt. Can we ask the witness to leave the room? I do need to have a dialogue with Ms Douglas and Ms Pole about this.

<THE WITNESS WITHDREW [1.31 PM]

PN463

MS POLE: The witness is out of the room.

PN464

THE COMMISSIONER: Thank you. Ms Douglas, I just don't understand what the relevance of any of this policy document stuff is. The policies are not incorporated or called up into the enterprise agreement. The enterprise agreement is very clear that the company can have policies, the company must distribute policies. The company can change the policies, and to the extent of any inconsistency as between the policies and the agreement the agreement prevails.

PN465

The fact that they uploaded other documents into the portal, because they had been talking about them at the same time as they had been engaged in the enterprise bargaining, I just can't see the relevance of this, and I need you to help explain it to me before I allow you to keep on with this line of questioning, please.

PN466

MS DOUGLAS: Certainly, sir. It will be a submission of the applicant that the central issue about the policies being included, as you say, as a dual purpose for these meetings, and also circulated with the proposed enterprise agreement documents, for the purpose of the vote, that those issues amount to unfair conduct, and that it may have been, for some employees, misleading in terms of what the subject of the vote was.

PN467

THE COMMISSIONER: Then bring me a warm body who says 'I am confused'. I mean, it's not strong enough to say this might have been confusing for employees to have this dual purpose in the meeting, and to have these documents published at the same time. I'm going to need some evidence of a warm body who says, 'Look, I'm confused by all of this', because there just isn't anyone.

PN468

MS DOUGLAS: No, Commissioner, you are right. I do say though that from Mr Wilson's evidence yesterday there is - he reflected that there was an appearance that the policies were part of bargaining or at the very least there was significant overlay between the policies and the proposed agreement, the subject of the agreement, and, so in the context of enterprise bargaining and collective bargaining for a new agreement, it was not clear, and that conduct is unfair on that process.

PN469

THE COMMISSIONER: All right. But what more evidence do you need out of this witness? The documents speak for themselves, MS4, we know that at the time the agreement was distributed these other nine policies were distributed, we know they'd been the subject of discussions on the 16th, 17th or 18th. You can make a submission that that's all unfair.

PN470

MS DOUGLAS: Yes, Commissioner. I think given the questioning we've had it does cover all of the matters that I did want to address with the witness on this point.

PN471

THE COMMISSIONER: I understand the submission you're going to make, but you're going to have to convince me that having dual purposes and producing other documents is an aspect of unfairness when no one comes here and complains that they didn't know what was going on. Anyway, let's get the witness back.

PN472

MS POLE: Sorry, just before we do that I think probably now is a good time for me to just signpost a potential jurisdictional issue that I can raise later and expand on later. But I just want to, just for Ms Douglas' benefit, note that my reading of the letter dated 25 February - I can't see in there a complaint by the AWU that time spent discussing policy meant that the respondent didn't meet the good faith bargaining obligations.

PN473

So, as I say, hopefully they deal with that in closing submissions but noting that there is a jurisdictional issue and the witness is out of the room, I thought now was a good time to just flag that I may need to raise that if this line of questioning continues, which it sounds like it won't.

PN474

THE COMMISSIONER: In any case, I think flagging the matter as you have just now, Ms Pole, is useful. Thank you.

PN475

MS POLE: No problem. Would you like me to get the witness back?

PN476

THE COMMISSIONER: If we could please, yes.

<MICHAEL SPENCER, RECALLED [1.36 PM]

CROSS-EXAMINATION BY MS DOUGLAS, CONTINUING [1.36 PM]

PN477

Mr Spencer, you remain on the affirmation you have already given to me. Thank you. Ms Douglas?

*** MICHAEL SPENCER XXN MS DOUGLAS

PN478

MS DOUGLAS: Mr Spencer, in the course of planning for the bargaining meetings that were held, you didn't schedule a specific time for the employee representatives to gather together to discuss their claims collectively, did you?‑‑‑I responded to a request by the bargaining reps to have some time to themselves. That request was on the Wednesday afternoon, so they requested some time to get together on the Thursday morning and I agreed to that request. And so I, along with a couple of my colleagues, sort of reconnected with that group at 10 o'clock the following morning.

PN479

And so it's true that that session you arranged on the Thursday morning hadn't been part of the plan, that it was implemented following requests?‑‑‑Correct.

PN480

You referred to site bargaining reps who made the request but there was also Ms O'Keefe from the AWU who made similar requests, wasn't there?‑‑‑That may be the case. I don't remember distinctly that but I've no reason to doubt that.

PN481

Moving to the particular issue about pay rises which I understand was raised during the bargaining meetings, do you agree that it was raised a number of times for pay rises to be included in the proposed agreement?‑‑‑It was raised a number of times by the AWU. I think I can recall three times when it was raised.

PN482

Different representatives raised the same issue, or similar issues?‑‑‑I can certainly remember Kate raising the issue, and Brad. There was a third request but I just can't identify in my mind the person who raised that. But it was from the AWU.

PN483

And it was Kate who first raised it at the end of the Wednesday meeting, would you say?‑‑‑Yes, that sounds about right, yes.

PN484

Given it was the end of the day on Wednesday, your reply to her was, 'Yes, we'll talk about it tomorrow'?‑‑‑Again, I've no reason to doubt what's been suggested there, yes, but I can't really - - -

PN485

And - - -?‑‑‑Yes.

PN486

Kate raised it again on the Thursday?‑‑‑Mm-hm.

PN487

At the time when she raised it again on the Thursday, would you agree that you responded with a remark along the lines of, 'Can you focus on the annual leave claim'?‑‑‑I have no recollection of that.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN488

Do you recall whether Ms O'Keefe, whether Kate raised her query, her question about the pay rate being linked to the CPI, during the discussion or around the time of the discussion that also related to annual leave?‑‑‑No, I have no recollection of that.

PN489

In terms of Mr Gandhi from the AWU who you said also asked about pay rates going into the enterprise agreement, do you agree that Mr Gandhi mentioned it in the context of having a safety net or a floor, in the context of the cost of living?‑‑‑Yes, I do remember that.

PN490

Do you agree that he said while discussing this particular claim that he was making the claim on behalf of members?‑‑‑I have no recollection of that statement, at all.

PN491

Graeme Ovens from Gold Fields was present during this part of the meeting when Mr Gandhi was attending?‑‑‑Yes, he - yes. Yes.

PN492

Would you agree that Mr Ovens responded to Mr Gandhi when this claim was discussed?‑‑‑Specifically, what are you claiming Mr Ovens said, please?

PN493

Was he involved in the discussion, at all?‑‑‑Well, he was certainly in the room and he was certainly a participant.

PN494

Would it have been Mr Ovens who responded to Mr Gandhi to confirm that on behalf of Gold Fields the CEO wouldn't agree to the claims Mr Gandhi was suggesting?‑‑‑No, that's not correct. Mr Ovens did not make that statement. I made a statement along those lines because I was personally aware from discussions with the CEO that he would not agree to such a claim.

PN495

And at the time that the issue of pay rates being confirmed in the enterprise agreement, would it be correct to say that there was another employee represent who raised the profits of Gold Fields - I believe it's something in the order of 620 million, and that point was raised?‑‑‑That was raised late on the Thursday because our CEO had just made an announcement to that effect. I can't speak to the fact number but I know our CEO did make an announcement in relation to the company's financial position.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN496

I'll just outline some evidence that Mr Gandhi has given in his statement. Mr Gandhi says that he said, and that you were in the meeting, present when he said this, 'You don't have an obligation to agree but you have an obligation to respond and give your rationale.' And Mr Gandhi also said, 'We need to have good faith bargaining. You need to at least pretend to listen to my claim and respond.' Do you recall Mr Gandhi making comments along those lines?‑‑‑I distinctly recall that no such comments were made.

PN497

Is it your evidence that you responded to the claim from Mr Gandhi about the pay rates being in the enterprise agreement, the proposed agreement, that you responded that it wouldn't be signed off by the CEO?‑‑‑I believe that I may have used those words, but certainly that said then I was personally aware that the CEO would not agree to such a clause.

PN498

Is it the CEO who makes the final call on what changes are made to the proposed agreement in terms of the entitlements, I suppose, and the benefits that are in the proposed agreement (indistinct)?‑‑‑In relation to that clause, yes.

PN499

Putting aside the particular clause about pay rates and annual pay increases, is it the CEO who has authority to confirm the changes to benefits in the proposed agreement?‑‑‑They're for a number of benefits. The sign-off is at the group level, so at the global level. So for benefits that have a financial cost - - -

PN500

MS POLE: Sorry, if I - - -?‑‑‑Yes.

PN501

Sorry to interrupt. I just wanted to clarify the relevance of that question. It's not clear to me why who has the authority to agree or approve pay rises is relevant to the good faith application that's been sought, so effectively an objection for me.

PN502

THE COMMISSIONER: From my understanding it said that the person who was in the room communicating on behalf of the company had no authority. And so the person who should have been giving the reasons for refusing a claim made by the union, is the person who makes the decision. And the decision-maker, apparently, was not in the room. That is how I understand the argument. Ms Douglas, you can correct me if I've missed something.

PN503

MS DOUGLAS: No, that's correct, sir.

PN504

THE COMMISSIONER: I mean, with the obligation of good faith bargaining, people put proposals, people have to reply. And the argument put against the company - it's pretty clear in the materials that the company wasn't replying, they were sitting here saying, the guy who makes this decision won't agree. The guy who's making the decision should explain his response.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN505

MS POLE: Okay.

PN506

THE COMMISSIONER: And it seems that in relation to this, there was no explanation of it. So it's not a criticism of Mr Spencer. His hands got tied behind his back. He's not the decision-maker on pay rises. He just gets his writing instructions. Because the person who could have explained the reasons wasn't in the room. Sorry, Ms Douglas. Go on.

PN507

MS DOUGLAS: Thank you. I do intend to move on from that point. Mr Spencer, in terms of not pay rises being in the enterprise agreement, but other employee benefits, did you have any discretion from, as you say, the group at the global level who was authorising the changes to the proposed agreement?‑‑‑Okay, so prior to the discussions occurring there was an EA mandate put together, and that was presented to our CEO and discussed with our CEO and a number of other senior people.

PN508

You weren't a party to those discussions?‑‑‑Yes, I was a party to those discussions.

PN509

Right. And were you effectively given authority pursuant to the mandate, that EA mandate, to respond during the bargaining meetings?‑‑‑Correct, yes.

PN510

Did the EA mandate proposed, if I could say, certainly items of entitlements that would be permitted in the agreement?‑‑‑That's correct.

PN511

And did the EA mandate - in relation to the items that would be permitted in the agreement, did it specify, I suppose, for example, if it was about leave, the number of weeks of leave; or if it was about money, the financial cap that would be permitted to go into the agreement?‑‑‑Okay, so there's two aspects to that so I'll answer them separately. In relation to leave we had not anticipated the requests that were presented to us. So, during the course of the discussions those requests were considered, costed on the side, discussed amongst a number of senior people outside of the - yes, in tandem with and outside of the bargaining discussions. And then we agreed that we could agree to those requests, so that was in relation to the leave. In relation to the cost there was an upper limit set on the cost.

PN512

Sorry, the audio was not great at my end. You said there was an agreement at the upper limit on the cost of the annual leave?‑‑‑Yes, there was a prior agreement in relation to the upper limit of the cost.

PN513

That was before the bargaining meeting started on the Tuesday?‑‑‑Yes, that's correct.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN514

The ‑ ‑ ‑

PN515

MS POLE: Sorry, Ms Douglas, I think Mr Spencer may have just missed the last part of your initial question. Did you ask him, sorry, whether there was an upper limit set on the cost of the leave?

PN516

MS DOUGLAS: My question was generally trying to understand if there were limits, not necessarily - my original question was regarding upper limits generally on anything financial.

PN517

In terms of the leave, in particular, if I can just clarify, Mr Spencer, I thought that you said that you didn't anticipate that the leave claim would come up, and, so that needed to be considered and costed on the side?‑‑‑Correct.

PN518

How then though was the upper limit of costings to the annual leave known before the Tuesday meeting?‑‑‑We ‑ ‑ ‑

PN519

Sorry, perhaps I'll rephrase the question?‑‑‑Yes.

PN520

Did you also say that the upper limit for the annual leave had been costed before the Tuesday meeting?‑‑‑No, there was no upper limit in relation to annual leave. We hadn't anticipated annual leave as being a line item in the EA mandate. And there some other line ‑ ‑ ‑

PN521

And, so ‑ ‑ ‑?‑‑‑Sorry?

PN522

‑ ‑ ‑what did you say had been known prior to the Tuesday meeting and discussed with you?‑‑‑I'm not - I'd like to ask my legal counsel whether I'm obliged to reveal that. There were obviously some items that didn't come up, and, you know, that gave us some financial room to move.

PN523

THE COMMISSIONER: The answer is, Mr Spencer, Mr Douglas gets to ask questions, you're required to answer them. If Ms Pole objects to a question I'll deal with an objection?‑‑‑Yes.

PN524

But subject to her objecting to the question you've got to answer it?‑‑‑Okay.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN525

MS POLE: Perhaps what I might do is just, in the event that there's confidential or business sensitive information led in evidence I may need to make an application to have that portion of the transcript sealed or not referred to in the judgment, which I'm conscious is public.

PN526

THE COMMISSIONER: Yes.

PN527

MS POLE: So, I'm obviously aware I can't advise a witness while he's giving evidence, but I just - subject to what evidence is given, I'm just flagging I may need to request that that, yes, portion of the transcript be sealed if possible. And, Commissioner, if you need me to make submissions on that I can.

PN528

THE COMMISSIONER: Ms Douglas, you wouldn't oppose a submission to that extent?

PN529

MS DOUGLAS: No, sir.

PN530

THE COMMISSIONER: Then I accept the oral application for confidentiality and it will be reflected.

PN531

MS POLE: Thank you.

PN532

THE COMMISSIONER: Can I get some clarity around this, Mr Spencer, you're clearly asked on a number of occasions about including the pay rise increase in the agreement; isn't that right?‑‑‑Correct.

PN533

What reason did you give for not including it?‑‑‑The reason I gave for not including it is that in my experience when you have a number for, you know, a percentage increase in that clause your finance and other people within the organisation latch onto that, and say, 'Well, that's what they've agreed to for the next four years, so that's all they get'. So from my ‑ ‑ ‑

PN534

What, you can't convince the finance people to make an over agreement payment?‑‑‑In my experience it's been extremely difficult.

PN535

Right. And what do you say is the claim that was made in respect of which you said the CEO wouldn't approve that? What does that attach to?‑‑‑That attached - well, that is the - certainly when the EA mandate was presented to the CEO, and, you know, in my discussions with previous CEOs as well, that's the one clause that they have the most interest in, in relation to the agreement.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN536

Sorry, what clause is that?‑‑‑That's the salary escalation clause.

PN537

Yes, but, why - I mean, I'm sitting here and I don't know the reason why?‑‑‑The gold sector, and I think I mentioned this as well, the two things that we don't have control over, at least I mentioned this in the witness statement, are the gold price and the exchange rate. And the CPI increases and the health of the gold industry don't always march in step. In fact, sometimes they're countercyclical, and if you have hard-baked CPI increases in there, and when the financial health of the organisation takes a battering basically what it means is that when you face redundancies you go in harder and deeper.

PN538

Is that what you explained in relation to the CPI issue?‑‑‑I certainly explained in relation to - not so much the redundancy aspect of that, but otherwise, yes.

PN539

So, my question was, in respect of what claim did you say words to the effect that the CEO wouldn't approve that?‑‑‑That was in relation ‑ ‑ ‑

PN540

(Indistinct) relate to?‑‑‑That was the request for CPI increases.

PN541

Right. Thank you, Ms Douglas.

PN542

MS DOUGLAS: Thank you, Commissioner.

PN543

Sorry, apologies, I'll just ensure that I don't ask anything that has come up with the witness already, so I don't duplicate any content.

PN544

Mr Spencer, you referred earlier to the annual leave claim that was raised, and you said that that hadn't been a claim anticipated. Gold Fields gave a counter-proposal to the claim from the employee reps, and you made that counter-proposal?‑‑‑That's correct.

PN545

And, so, is it correct that the employees were asking for one additional week of annual leave?‑‑‑Correct.

PN546

And that your response to the counter-proposal was that the one week would be split, so it wouldn't all be provided from July 2022, it would be an additional two days' annual leave from July 2022, and then the balance of the week sought, the additional three days, would apply from July 2023; is that right?‑‑‑That timetable is correct, and that refers to when the accrual of the additional leave would commence from.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN547

Thank you for the clarification. Other than providing the counter-proposal, you didn't provide an explanation about why that counter-proposal was presented, did you?‑‑‑I can't recall specifically, but it was - you know, the context was that is what we could afford to do this year.

PN548

Thank you. If I could direct you to paragraph 53 of your witness statement, do you have that in front of you?‑‑‑Yes, I do. Yes.

PN549

The last sentence of that paragraph is:

PN550

The cost of new benefits under the proposed new agreement were therefore known.

PN551

Referring to the end of the negotiation period, the end of the bargaining period; is that right?‑‑‑Correct.

PN552

So, in terms of the timing of when the cost of benefits were known, that wasn't raised by you during the bargaining meetings, was it?‑‑‑I'm not sure of the specific question. Could you please reframe?

PN553

Certainly, I will. So, during the bargaining meetings, there was discussion about the dates that had been set for the vote and the access period?‑‑‑Correct.

PN554

And I believe you're suggesting that in terms of the pay review which was to be conducted in March, that the outcome of the enterprise agreement and therefore the financial impact of the proposed agreement needed to be known before the pay review could be conducted; is that right?‑‑‑The pay review had already been conducted, so it was sitting there. Obviously the cost of the agreement needed to be known so that the company had the option of amending that pay review if that was necessary to part fund the cost of the agreement.

PN555

And, so, that interaction between the cost of the agreement and the impact on the pay review, that was not background information that you outlined during the bargaining meeting, was it?‑‑‑That was - there were discussions on that, that the two were intertwined.

PN556

But, in terms of the particular reasoning of how they're intertwined as being financial, that was specified during the bargaining meetings, was it?‑‑‑I don't think I specified it, but it was certainly understood by the ‑ ‑ ‑

*** MICHAEL SPENCER XXN MS DOUGLAS

PN557

By the company?‑‑‑Yes.

PN558

Yes, I believe the company would have understood that. Yes?‑‑‑Well, I was just going to finish my sentence, it was understood by the bargaining reps, by the (indistinct).

PN559

THE COMMISSIONER: You can't give evidence - sorry, Mr Spencer, you can't give evidence about what the bargaining representatives understood?‑‑‑Fair enough.

PN560

The company had every opportunity to bring before me more than two bargaining representatives, and they could have told me what they thought?‑‑‑Yes.

PN561

MS DOUGLAS: Mr Spencer, in terms of the employees who were represented by the employee bargaining representatives, would you agree that they included shift workers?‑‑‑Yes.

PN562

And that some of those shift workers would have been nightshift workers?‑‑‑Yes.

PN563

Is it true that when your employees are working, that they're not contactable at work?‑‑‑Some would be, some wouldn't be.

PN564

Would it be true that some of the employees covered by the enterprise agreement - or covered by the propose agreement and also represented by the employee bargaining representatives, that some of those employees would not be contactable at work?‑‑‑That would be true.

PN565

In terms of the shift workers, do you accept that if they are working shift work there would be an expectation that they would sleep for a portion of the day hours to prepare or to recover from night shift?‑‑‑Absolutely.

PN566

You didn't speak directly with the employee representatives about how they were contacting the employees they represent, did you?‑‑‑At the beginning and end of each day I went around the room and asked people where they're at and some of the bargaining reps did share with me at that time and/or during the course of the day that they had received feedback from people on site, and shared with the room what that feedback was.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN567

Is it true that there was also some response from the employee bargaining reps that some of them had had issue with contacting the people they represent to get feedback?‑‑‑Earlier on in the discussions there was.

PN568

Mr Spencer, I'll just move on to the conclusion of the bargaining. In terms of the Friday afternoon, would you agree that the AWU had not given in‑principle agreement to the proposed agreement - the position on the proposed agreement that had been reached?‑‑‑My understanding was that the whole room was in agreement.

PN569

Did each bargaining representative verbally communicate that?‑‑‑No, they didn't, but we did have an open discussion in relation to the timetable of the - for feedback and comment prior to commencing the - prior to loading the final documents onto the portal, prior to the commencement of the access period, when the access period would start and finish, and when the period for voting would start and finish.

PN570

Mr Spencer, there is an attachment 5 to your witness statement which is an email from Mr Dunne of the Australian Workers Union?‑‑‑Yes.

PN571

Mr Dunne confirmed in that email that:

PN572

The AWU reaffirms we did not reach in‑principle agreement for the proposed EBA on Friday, 18 February 2022.

PN573

Do you accept that?‑‑‑Yes, I accept that communication was received.

PN574

Would you agree that any opinion you had about - - -

PN575

THE COMMISSIONER: Ms Douglas, can you just draw me to that exhibit again.

PN576

MS DOUGLAS: Yes, Commissioner. It would be page 75 of the court book. On that page there are numbers 1 to 10 and I'm referring to the sentence which appears below those 10 numbers.

PN577

THE COMMISSIONER: Yes, but he sends that out subsequent to the email from Adrian Donnelly, because it's sent on 21 February at 5.33 where they talk about in‑principle agreement.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN578

I guess my question there, Mr Spencer, is Mr Donnelly sends his email on 21 February 2022 at 5.33 pm saying, 'Having ended Friday with an in‑principle agreement' - that's page 73 of the court book - somewhat promptly the following morning Mr Dunne says, 'We did not reach in‑principle agreement.' At any point did the company then correct its statement that there had been in‑principle agreement?‑‑‑I don't believe so.

PN579

Why not?‑‑‑I believe that we had reached in‑principle agreement on the Friday. I believe that the correspondence from the union was a retraction from that position.

PN580

Look at page 75 of the court book?‑‑‑Yes.

PN581

An email directly to you?‑‑‑Yes.

PN582

Under item 10:

PN583

The AWU reaffirms we did not reach in‑principle agreement for the proposed EBA on Friday, 18 February 2022.

PN584

So you might have held the view on Friday; you've communicated to employees on the Monday there is an in‑principle agreement; the AWU tells you very promptly the following morning, 'Ay, ay, you're wrong about that. There's no in‑principle agreement.' Why haven't you corrected in the mind of your employees that the AWU is not in agreement?‑‑‑I don't have an explanation for that, Commissioner.

PN585

Well, it just seems to me there is something misleading hanging out there; isn't that right?‑‑‑My understanding was that we had reached agreement with the union on the Friday and with the site bargaining reps, and there were 10 of those. My understanding remained that - - -

PN586

If I give you the benefit of the doubt you might have genuinely held that understanding on the Friday?‑‑‑Yes.

PN587

The email of 21 February - if I give you the benefit of the doubt - innocently reflects what your understanding was, but come 10.39 am on 22 February you're being corrected. You're being told, 'No, no, we are reaffirming that we are not in principle' - and yet you leave hanging out there a statement to your employees that there is in‑principle agreement. Is that what you have done?‑‑‑Correct, Commissioner.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN588

How is that fair?‑‑‑I didn't turn my mind to that question at the time, Commissioner.

PN589

MS POLE: Sorry, Commissioner, if I may, I just want to double‑check. The email that I'm looking at, which is MS4, I can't see that that was sent to all employees.

PN590

THE COMMISSIONER: It's sent to site leads. Who are site leads?‑‑‑They are my peers; sort of HR people and engagement peers on site.

PN591

So when do all these documents get sent to the employees during the access period?‑‑‑Yes, they're available on the portal in the access period.

PN592

How is that communicated to employees?‑‑‑That would have been communicated to employees by the site leads with sort of PowerPoint presentations.

PN593

Sorry, where is the document which tells the employees about the access period and voting coming up? Where is that email? Can someone direct me to that in the - - -

PN594

MS POLE: Yes, I can see MS4 has got in the 'to' section - it's blank and I'm wondering, Commissioner, if we may need to locate - I'm wondering if MS4 is the incorrect attachment and we need to locate a copy of the email that was provided to employees at the beginning of the access period. So MS4, as I understand it, is an email that was sent to the bargaining representatives seeking their - - -

PN595

THE COMMISSIONER: Well, it says 'site leads'.

PN596

MS POLE: Sorry, 'site leads' and also - yes, the subject line is 'Employee representative feedback required'. I can see some of the individuals in the 'bcc' there in the middle of the page, the bargaining reps, so it includes Catherine O'Keefe, Adam Wilson, et cetera, so I understand that MS4 was sent to the bargaining representatives on the 21st seeking feedback on the agreement, but I don't believe there is an email that was sent to employees on the 21st saying that in‑principle agreement had been reached because the access to - - -

PN597

THE COMMISSIONER: I want to see what was sent to employees on the 22nd that notifies them of the access period. Where is that document?

*** MICHAEL SPENCER XXN MS DOUGLAS

PN598

MS POLE: I don't believe that document is in evidence at the moment, but if we take a break I can ask for that to be provided.

PN599

THE COMMISSIONER: Yes, why don't we take an adjournment for 10 minutes. I think we need to get that now.

PN600

MS POLE: Certainly. Just to clarify, what you're seeking is the document that was communicated - presumably the email that was sent to all employees at the commencement of the access period, that opens the access period or referred to the negotiations or the vote?

PN601

THE COMMISSIONER: Yes.

PN602

MS POLE: Yes, okay, let me locate that.

PN603

THE COMMISSIONER: Then while you're at it you might as well also grab me that document that is referred to at paragraph 11 of Mr Spencer's statement.

PN604

MS POLE: Yes, certainly. I'm just double‑checking I don't have that already. It looks like I don't, so - no, I think I may have that, so I'll send that through as soon as I get it and track down the other.

PN605

THE COMMISSIONER: Something that I'm finding a bit curious, why is this agreement going to end on 30 April 2022?

PN606

MS POLE: No, it's not, sorry, I think that's the old agreement. The 2018 agreement's nominal expiry date is April 2022, but there is simultaneously with the vote to approve this agreement - there has been a vote to terminate the old agreement so that this agreement can take effect when that agreement - like, there will be a termination of the old agreement and this agreement can immediately take effect, rather than taking effect in April.

PN607

THE COMMISSIONER: When I'm looking at the attachment to MS4, which is the agreement 2022, and I look at the definition of 'end date' - presumably this is the document which has been distributed to employees - the end date is 30 April 2022.

PN608

MS POLE: The version that you're looking at was the one that was distributed to the employee bargaining reps on the 21st. I'll locate a copy of the version that has been sent to the employees at the start of the access period.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN609

THE COMMISSIONER: Thank you. We will adjourn until 2.30.

<THE WITNESS WITHDREW [2.18 PM]

SHORT ADJOURNMENT [2.18 PM]

RESUMED [2.33 PM]

PN610

MS POLE: Commissioner, just before we begin I have located the document that was provided to employees at the commencement of the access period. I'm about to send that to you. My preference would be - it's got employees email addresses in there - so what I would like to do with your consent is send that just to yourself and not copy Ms Douglas, but then separately immediately after send the same email to Ms Douglas, copy to yourself and just delete the employee email, so you can see the fully copy. Thank you. I'm doing that right now. There are several attachments that may just take a minute to come through.

PN611

THE COMMISSIONER: But as between the 21st and the 22nd did someone pick up the fact that the end day needed to be changed?

PN612

MS POLE: No. So that is an error, that's in the enterprise agreement. I suppose our submission on that point is that it's a clear error and that it's something our client will need to deal with separately to these proceedings. It's not intentional, clearly it's not intentional. There's benefits in the enterprise agreement that are due to take effect from dates that postdate that date. So it would be our submission I suppose to the extent the Commission requires it that the date of 30 April 2022 is an error, it was intended to be 30 April 2026, and that is something that Gold Fields will need to deal with separately if the vote is allowed to proceed and is successful.

PN613

THE COMMISSIONER: Where is there any document where it was explained to employees the date is 30 April 2026? The table of changes document doesn't refer to that I don't think.

PN614

MS POLE: Let me send you now what was sent out at the beginning of the access period.

PN615

THE COMMISSIONER: That might help.

PN616

MS POLE: I just want to also make sure I send that to Ms Douglas before I forget.

EXHIBIT #26 GOLD FIELDS COMPANY'S ENTERPRISE AGREEMENT TABLE OF CHANGES DOCUMENT

PN617

MS POLE: Commissioner, I just have to excuse myself to go and retrieve papers from the computer out of the screenshot.

PN618

THE COMMISSIONER: Yes, thank you.

EXHIBIT #27 EMAIL DATED 23/02/2022 NOTIFICATION OF ACCESS PERIOD AND VOTING DETAILS

PN619

THE COMMISSIONER: I note that in the memorandum that went to all employees there's no reference to an in principle agreement. Thank you, Ms Douglas.

PN620

MS DOUGLAS: Thank you, Commissioner. I do want to clarify that Mr Spencer is still in cross-examination and I intend to ask perhaps just two more questions of him if that's - - -

PN621

THE COMMISSIONER: Yes. He remains on his previous affirmation.

<MICHAEL SPENCER, RECALLED [2.43 PM]

CROSS-EXAMINATION BY MS DOUGLAS, CONTINUING [2.43 PM]

PN622

MS DOUGLAS: Thank you. Mr Spencer, the email marked attached MS4 which was attachment 4 to your witness statement it appears as though it was sent to site leads, is that right?‑‑‑Yes, that's correct.

PN623

And I'm not able to see it clearly, but to clarify that email at exactly the same time was also circulated to all of the bargaining representatives, is that right?‑‑‑That's correct, they were bcc in on that.

PN624

In relation to the site leads did I understand a comment you made earlier that the site leads were tasked with the job of preventing the information about the proposed agreement to the employee groups on site?‑‑‑Yes, that's correct.

PN625

And so that email from the 21st, Monday the 21st that was sent both to the - sorry, firstly, the email on the 21st it was sent to the site leads and they were to take that information from that email and circulate it to the employees on site as part of that task?‑‑‑So the last part of the email refers to an EA slide deck for their use in communicating to people on site.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN626

And this information in the email was in conjunction with the slide deck for the site leads to use in presenting to employees?‑‑‑Specifically the slide deck was to be used for communicating with employees.

PN627

And this email was also sent to the bargaining reps. I believe you clarified that?‑‑‑That's correct, yes.

PN628

The bargaining representatives who represent the particular employees in the process of bargaining?‑‑‑Correct.

PN629

So there was no clarification following this email to the bargaining reps who received the email that the union did not give in principle agreement?‑‑‑I believe that's the case.

PN630

And there was no clarification to the site leads who received the email about the same issue?‑‑‑No written communication as far as I'm aware.

PN631

No verbal communication either?‑‑‑There may have been verbal communication.

PN632

So there may have been verbal communication to the site leads that the union did not give in principle agreement?‑‑‑Yes, there may have been. I can't recall exactly.

PN633

THE COMMISSIONER: There's no need to speculate. If you don't know you don't know?‑‑‑I don't know. Thank you.

PN634

MS DOUGLAS: Commissioner, I believe that may be all of my questions. I will just take a moment to make sure that the new material, I don't have any questions on the new material that was just sent through.

PN635

THE COMMISSIONER: Yes. Take your time.

PN636

MS DOUGLAS: Just one matter, I just wanted to clarify, the document I received, being what I believe is the proposed Gold Fields agreement for 2022, can I have it confirmed that the AWU is included as a party in clause 2(c) of the agreement, Mr Spencer or ‑ ‑ ‑

PN637

THE COMMISSIONER: I'm looking at it myself. Yes, it is.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN638

MS DOUGLAS: And, Mr Spencer, can I confirm then that this is the attached - this version of the document is what was sent to employees and put on the portal for the vote?‑‑‑Can you just refresh my memory as to the email that that's attached to, what's that date, please?

PN639

I believe it might be your evidence that the email that Ms Pole has just forwarded, and that email is dated the 9th -, sorry, no, that's today's date.

PN640

MS POLE: Yes, just in fairness, that is the really (indistinct) what I've sent to you.

PN641

MS DOUGLAS: 23 February.

PN642

THE COMMISSIONER: Yes.

PN643

MS DOUGLAS: And my understanding is that the subject, 'Sent on behalf of Graham Ovens, Vice President'?‑‑‑Yes, that's correct, that's the version that went to employee. post the feedback from the bargaining reps.

PN644

Thank you. But the inclusion of the AWU as a party, I may have missed it, but I don't see that that's captured by the table of changes; would that be right?‑‑‑That's not correct. It is reflected in the table of changes. On the first page, the second item, the second row.

PN645

I'm sorry, I'm not sure exactly where you're referring to. I can't see it. Could you perhaps give me more detail?

PN646

THE COMMISSIONER: Sorry, can I explain it this way, the summary of changes document, which is exhibit 26, is a document that was distributed prior to bargaining. There is a second document describing table of changes, which went out with the access email on the 23rd, and that table in its table of changes refers to the AWU. So, there are two documents detailing the table of changes: one before bargaining, and one when the access period was commenced.

PN647

MS DOUGLAS: Thank you.

PN648

THE COMMISSIONER: So, when this email comes into view you'll see that, Ms Douglas.

*** MICHAEL SPENCER XXN MS DOUGLAS

PN649

MS POLE: I also have to interject here and just apologise there. In the email from Graeme Ovens to all employees it refers to an FAQ document as well, which was not attached to that email. I think I've just received the email now, but that was circulated subsequently, and, Commissioner, the reason that is relevant is because that FAQ document identifies the term of the agreement as being four years which was one of your questions. So, I will send that to everyone as well, and confirm when that was circulated and to whom.

PN650

THE COMMISSIONER: All right.

PN651

MS DOUGLAS: So, just for my own confirmation, I understand then that it's the case that there was a table of - two versions of the table of changes document that relevantly the version that was circulated to employees immediately before the vote for the purpose of the vote did include a reference to the AWU being a party to the agreement?‑‑‑Yes.

PN652

THE COMMISSIONER: Yes, it's the second though in the table.

PN653

MS DOUGLAS: Thank you. I have a different version in front of me, so I'm not ‑ ‑ ‑

PN654

MS POLE: Ms Douglas, it might ‑ ‑ ‑

PN655

MS DOUGLAS: That's fine, I accept that.

PN656

I don't have any other questions for Mr Spencer.

PN657

THE COMMISSIONER: Thank you, Mr Douglas. Any re-examination, Ms Pole?

RE-EXAMINATION BY MS POLE [2.53 PM]

PN658

MS POLE: Yes. Sorry, just give me one minute.

PN659

I wanted to take, Mr Spencer, very quickly if I may, to attachment MS10 of his statement.

PN660

THE COMMISSIONER: MS10, which is page 87 of the court book?

*** MICHAEL SPENCER RXN MS POLE

PN661

MS POLE: Yes.

PN662

And, Mr Spencer, your evidence is that this was a full-page advertisement that was posted on the back of the Kalgoorlie Miner on 3 March?‑‑‑That's correct.

PN663

Are you aware, and if you're not aware, I appreciate this is a difficult question, are you aware if the Kalgoorlie Miner is a widely read newspaper within the Kalgoorlie community?

PN664

MS DOUGLAS: I would object that Mr Spencer is not able to answer that question.

PN665

MS POLE: No, no, that's fine. Let me have a - yes, sorry.

PN666

THE COMMISSIONER: Mr Spencer, do you read the Kalgoorlie Miner?‑‑‑I do now.

PN667

MS POLE: Does Gold Fields have a number of employees who are residents in Kalgoorlie?‑‑‑Yes, the majority of our workforce at our St Ives site are resident in Kalgoorlie, and that would be - there'd be 450 or so employees there who are residents in the Kalgoorlie and Boulder area.

PN668

Thank you?‑‑‑Approximately.

PN669

Can I also take you to attachment MS6 of your statement, which is on page 77 of the court book, and just take you to paragraph 12 of you - well, just to confirm, this is an email from yourself to Mr Dunne?‑‑‑Mm-hm.

PN670

Dated 22 February, and just take you to paragraph 12. If you could read that out for me, please?‑‑‑So ‑ ‑ ‑

PN671

THE COMMISSIONER: No, he doesn't need to demonstrate his reading capability to me.

PN672

MS POLE: Fair enough. Did Mr Dunne respond to that email?‑‑‑Mr Dunne has not responded to that ‑ ‑ ‑

*** MICHAEL SPENCER RXN MS POLE

PN673

THE COMMISSIONER: Sorry, Ms Pole, I don't know how this arises out of cross-examination. I don't know what Ms Douglas asked that is relevant to this line of questioning. It seems like evidence-in-chief to me.

PN674

MS POLE: Yes, fair enough.

PN675

THE COMMISSIONER: Sorry, I didn't mean to cut you off amidst your question.

PN676

MS POLE: No, no, no, it's a valid point. May I just take instructions from my instructor (indistinct).

PN677

THE COMMISSIONER: Yes, of course.

PN678

MS POLE: Commissioner, I have no further questions. Thank you.

PN679

THE COMMISSIONER: Mr Spencer, can I thank you for your attendance, you're now excused as a witness. You're welcome to stay in the room for the remainder of the proceedings.

<THE WITNESS WITHDREW [2.57 PM]

PN680

THE COMMISSIONER: As foreshadowed yesterday I propose that we take a half an hour adjournment until 3.30 my time. We will come back for closing submissions. I will allocate to each advocate half an hour.

PN681

MS POLE: My apologies, Commissioner, I wonder if it's too late, I actually did have one further question, which did arise out of Ms Douglas's cross-examination, and I think may assist the Commission with these issues. Is it possible for me to ask Mr Spencer that question?

<MICHAEL SPENCER, RECALLED [2.57 PM]

RE-EXAMINATION BY MS POLE, CONTINUING [2.57 PM]

PN682

THE COMMISSIONER: Mr Spencer, I'm putting you back in the box and you remain on your former affirmation?‑‑‑Okay, understood. Thank you.

PN683

MS POLE: Thank you, and appreciated.

*** MICHAEL SPENCER RXN MS POLE

PN684

Mr Spencer, do you know what the current CPI rate is here in WA?‑‑‑No, I don't.

PN685

You don't know what the current CPI rate is?‑‑‑No. No.

PN686

That was my only question. Thank you.

PN687

THE COMMISSIONER: I don't know how that assisted me, but anyway.

PN688

MS POLE: No problem.

PN689

THE COMMISSIONER: Mr Spencer, you're now excused as a witness. Thank you. We are adjourned for half an hour. Thank you?‑‑‑Thank you, Commissioner.

<THE WITNESS WITHDREW [2.58 PM]

SHORT ADJOURNMENT [2.58 PM]

RESUMED [3.33 PM]

PN690

THE COMMISSIONER: Ms Douglas.

PN691

MS DOUGLAS: Thank you, Commissioner. In terms of the jurisdictional objection raised by Ms Pole, I might turn to that firstly, and, on the understanding that you don't want to hear anything from Ms Pole on that at this point I'm prepared to respond to it.

PN692

I understand that Ms Pole's objection was that the applicant's argument regarding the policy documents and the fact that they were distributed to employee bargaining reps and also to employees with the documents for the vote on the proposed agreement, that that was not outlined in the form, the F32 application, the amended F32 filed by the applicant. So, unless I have mischaracterised that objection, the applicant says that the issue of policies was mentioned in the amended F32 in section 2.2.1 in part 4, the item 4.

PN693

THE COMMISSIONER: Yes, but that's under disclosing relevant information in a timely manner.

PN694

MS DOUGLAS: Yes.

*** MICHAEL SPENCER RXN MS POLE

PN695

THE COMMISSIONER: It's not indicated as part of 228(1)(e) refraining from capricious or unfair conduct. All of those matters ‑ ‑ ‑

PN696

MS DOUGLAS: Yes.

PN697

THE COMMISSIONER: I just don't think that the respondent has been put on notice that that's the case they had to meet.

PN698

MS DOUGLAS: I accept that that was not explicitly included in the F32, however, through the evidence provided in this matter, it has revealed the further information about policies and how they were handled and how the policy documents were treated through this bargaining process. And we say that it relates to the applicant's argument in the amended F32 about capricious and unfair conduct. That's not a new argument to be raised. The capricious and unfair conduct was included in the amended F32.

PN699

THE COMMISSIONER: Yes.

PN700

MS DOUGLAS: And it might be - - -

PN701

THE COMMISSIONER: The fact that policy discussions were conflated with bargaining discussions was not identified as a particular of the capricious or unfair conduct.

PN702

MS DOUGLAS: I do accept that, Commissioner, yes, but we submit that on the evidence now before the Commission rather than simply the information that was available in the amended F32, that that is the more appropriate characterisation.

PN703

THE COMMISSIONER: What is the evidence that supports a finding that it was unfair?

PN704

MS DOUGLAS: I will turn to those particulars. So the applicant says twofold in relation to the policy issue, that in dealing with the policy amendments, the discussions and amendments about policy documents in the bargaining process, was unfair as it gave the appearance that it was part of enterprise bargaining, and I point to the transcript with Mr Wilson's evidence at PN378.

PN705

THE COMMISSIONER: Yes, let me just turn to that.

PN706

MS DOUGLAS: At the conclusion of that paragraph of the transcript Mr Wilson says that, 'There's significant overlap between the two in my mind,' referring to policy and actual enterprise agreement.

PN707

THE COMMISSIONER: You say he's confused or misunderstood or thinks it's unfair? Is there some correlation between the two?

PN708

MS DOUGLAS: The applicant submits that it can be inferred that his explanation there reveals some misunderstanding or a lack of clarity that the enterprise bargaining excluded the policy changes. And if I turn to - - -

PN709

THE COMMISSIONER: Which PN am I looking at?

PN710

MS DOUGLAS: That one was PN378 but I turn to PN386.

PN711

THE COMMISSIONER: Let me read it, please. It's just confirming the existence of something that we know existed.

PN712

MS DOUGLAS: Yes and in Mr Wilson's words that they were included with the enterprise bargaining, we say that those policies were circulated and treated as part of the enterprise bargaining as Mr Wilson has characterised.

PN713

THE COMMISSIONER: Well, what's the evidence of that? There's an enterprise agreement that is distributed at the same time that makes it very clear the relationship between the enterprise agreement and policies. It couldn't be clearer in paragraph 12.3, I think it is, 12.3. So the actual written documents sent to employees make it very clear the subordinate nature of policies.

PN714

MS DOUGLAS: I do accept, Commissioner, that the proposed agreement document does specify that, however, the applicant's submission is that the act of circulating information and a significant amount of information for the employees to read for the purpose of the vote, was unfair as it lends itself to misrepresentation of the subject upon which the vote was to occur.

PN715

THE COMMISSIONER: There's just no evidence from any one body that supports that.

PN716

MS DOUGLAS: I do accept, sir, that the evidence is limited and the applicant has referred to the evidence available in relation to that submission.

PN717

THE COMMISSIONER: I don't think you can take that matter further.

PN718

MS DOUGLAS: In relation to the applicant's filed written outline of submissions, I confirm that fundamentally the applicant submits that the requirements of good faith bargaining as outlined by subsection 228(1) of the Fair Work Act – sorry, I should say section 288 subsection (1) of the Fair Work Act, is the fundamental issue for these proceedings and as outlined in our written submissions, we do say there are four failings and the four different requirements being to respond in a timely manner. To that end, where the respondents have failed to respond to a bargaining claim at all, they have, therefore, failed to respond in a timely manner.

PN719

THE COMMISSIONER: Which of the bargaining claims do you put into that category?

PN720

MS DOUGLAS: Specifically Ms O'Keefe's claim about - - -

PN721

THE COMMISSIONER: Is that about the PPI increase?

PN722

MS DOUGLAS: Yes, or a nominal percentage which was a similar claim separately raised by Mr Gandy and Mr Gandy's claim was responded to, but Ms O'Keefe's was not.

PN723

THE COMMISSIONER: Well, the obligation is to respond to the claim. The claim is advanced by the AWU. It is advanced by two different people; it's the same claim. Mr Spencer might not have responded to Ms O'Keefe but he certainly responded back to Mr Gandy. So there has been a response to the claim, the claim of the AWU. Do you accept that?

PN724

MS DOUGLAS: Yes, Commissioner, I do, yes. If characterised in that way then, yes, I accept it.

PN725

THE COMMISSIONER: Well, it has to be. Ms O'Keefe is there representing the AWU; Mr Gandy's representing the AWU. It's an AWU claim.

PN726

MS DOUGLAS: I do accept that a broad claim about having pay rises protected in the enterprise agreement was eventually dealt with and responded to by the respondent towards the end of the bargaining meetings but it had not been at the front end of those meetings.

PN727

THE COMMISSIONER: I think that's an appropriate concession and I thank you for making it, Ms Douglas. So which of the claims falls into the category of not having been responded to?

PN728

MS DOUGLAS: The applicant doesn't submit that there are any further claims.

PN729

THE COMMISSIONER: The complaint in relation to 228(1)(c) falls away?

PN730

MS DOUGLAS: On the characterisation of the evidence that way, yes, sir, I accept that.

PN731

THE COMMISSIONER: Good. The next one is genuine consideration in (1)(d).

PN732

MS DOUGLAS: Yes, sir. So in terms of the claim relating to annual pay increases to be included in the proposed agreement which you've characterised collectively was raised by Ms O'Keefe and Mr Gandy, that the respondent's responded that the CEO would not agree to that and that there was – that reflects a lack of genuine consideration for the claim, that there had been a pre-determined position that was then put back to the AWU as an employee bargaining rep when that claim was made, that there fails to be any genuine consideration by the respondents to that claim.

PN733

THE COMMISSIONER: Yes, I understand that submission but it does look like all this was done on the run during a meeting and most things were said no or for some reason given certainly not deep consideration.

PN734

MS DOUGLAS: Yes, Commissioner.

PN735

THE COMMISSIONER: I can understand the submission that it's not genuine either.

PN736

MS DOUGLAS: No, and we say that the central point is not that there's consideration in and of itself, but the central element is that it is the genuine consideration. The rest of the issues with genuine consideration are referred to in our written outline of submissions and the Commission's determination on whether genuine consideration was given will fall based on the characterisation of the evidence that has been heard by the various witnesses.

PN737

The third requirement that we outline is that the respondent is required to give reasons to its responses to claims by employee bargaining representatives. There were a number of claims which were responded to without reasons. The first of those I point to being the one about having annual pay increases protected and included in the proposed agreement, and even though the response was provided that the CEO wouldn't agree to that, that there was no reasoning. The COE's reasoning was not then presented to defend that simple response provided to the claim about annual pay increases. I also point to the evidence that you heard about the annual leave claim - - -

PN738

THE COMMISSIONER: Sorry, when Mr Spencer says, 'I can't agree to it because the CEO won't,' Mr Spencer is explaining why he can't agree to it. The obligation in the Act is for the employer to explain why or give reasons why it's not agreeing to it. But if he can't communicate the reasons on behalf of the employer, he should have gone to the CEO and said, 'What are your reasons? I want to know them. You've got an obligation under the Act to tell them your reasons.' And that didn't appear to occur.

PN739

MS DOUGLAS: Yes, Commissioner. Yes, further to the issue that you're pointing out, that Mr Spencer and the CEO, although separate individual people, are both representatives of the company and so when - - -

PN740

THE COMMISSIONER: Yes, exactly. What I need to look at is the conduct of the corporate entity, just as I'm looking at the conduct of the union as an entity.

PN741

MS DOUGLAS: Yes, so we say that Mr - - -

PN742

THE COMMISSIONER: I don't know what the reason is.

PN743

MS DOUGLAS: Yes.

PN744

THE COMMISSIONER: The only person who can give the reason is the CEO and he hasn't given evidence.

PN745

MS DOUGLAS: That is exactly our point, Commissioner. If you're happy for me to move on, there's one new item that has come up on the evidence which was not included in our written outline of submissions relating to reasons, in that – sorry, no, I correct myself. I have referred to that. We have referred to that in paragraph 20, subparagraph (b).

PN746

It's acknowledged that the employee bargaining representatives, not the AWU but other representatives, did make a claim for annual leave and that the respondent did provide a response to the claim about annual leave and, in fact, made a proposal which grants the additional week of annual leave. However, it was broken up rather than granting them the one week sought to apply from July 2022, it was to be split, part of the one-week entitlement to apply from July 2022 and the remainder of the entitlement to apply from July 2023.

PN747

There's been no evidence that there was any reason to explain that and I believe Mr Spencer's evidence on the point was that he didn't provide a response to give reasons explaining the proposal and their response of splitting that week of annual leave. The final requirement that the AWU says has not been met in terms of the good faith bargaining obligations, is the capricious and unfair conduct requirement. Sorry, not to engage in capricious or unfair conduct but, in fact, the reverse. To refrain from capricious and unfair conduct.

PN748

I've already dealt with the issue about the policy documents but we also refer to two other examples of conduct which we say is unfair. The misleading statements by the respondents, the first being Adrien Donnelly's email from 21 Feb, reflecting that the AWU gave an in-principle agreement which, in fact, was not true and that was - - -

PN749

THE COMMISSIONER: That hasn't gone to employees. We now know that that went to site leads.

PN750

MS DOUGLAS: Yes, it did. I accept it did go to site leads and also to the employee bargaining representatives, and those two groups who received that information have the task of passing information on to the employees voting and, therefore, the misrepresentation has remained with those people tasked with passing that information on, and it has not been corrected. We say that that is unfair conduct.

PN751

There is no evidence that the applicant has given any information to the employees about who gave in-principle agreement but there is evidence that the information, the misleading statement about the AWU giving an in-principle agreement, was past onto employee representatives and to those site leads who were to communicate to the employees, and it's unfair for that misrepresentation to remain and not have been corrected.

PN752

Beyond that point we also say that Mr Spencer made comments through the bargaining meetings about the period of the vote, the dates that the vote was to occur and an interruption with the vote date affecting the pay rises which were to be paid as a result of the March pay review. Mr Spencer has also confirmed that in an email as we refer to in our written submissions.

PN753

THE COMMISSIONER: Ms Douglas, I don't understand this point at all, in the sense that the enterprise agreement requires the employer to conduct a pay review. It doesn't indicate that wages are going to go up; it means they can't go down. So it's just not an enforceable right. For my point I don't even know why it's in the agreement. It doesn't seem to have any sort of work to do. And so all he's saying is, look, there's this review provision in the agreement, it doesn't guarantee you a wage increase but if you pass the agreement by this date when we come to do wage reviews it's these rates and this agreement that will apply. What's wrong with that? It's actually a statement of fact.

PN754

MS DOUGLAS: Well, what we say is unfair is that the – Mr Spencer characterised it in terms of the vote had to occur by a certain timeframe and that bargaining representatives were working towards that time pressure. In referencing the pay increases which were to flow from the March payroll, that it was making a representation that the vote needed to occur and the vote needed to be a yes outcome so that employees could get - - -

PN755

THE COMMISSIONER: But the vote does need to be a yes outcome for the employees to secure the pay rises in the agreement. That's obvious.

PN756

MS DOUGLAS: Well, we say that it's not obvious. Mr Spencer's evidence - - -

PN757

THE COMMISSIONER: How else do they get the pay rise? They don't get the pay rise in the agreement if they don't vote it up.

PN758

MS DOUGLAS: Yes, sorry, sir, I do understand what the miscommunication is. We say that the current agreement which is to nominally expire on 30 April this year, that contains a clause about pay reviews and that agreement is still in force, and so the pay reviews, which I understand have already occurred, they are subject to the current agreement. They have nothing to do with the new agreement. That clause may remain in the proposed agreement and it may come into effect if that new agreement is approved by the Commission but that could be a separate entitlement to what is currently - - -

PN759

THE COMMISSIONER: I don't know that I'm with you on this. What he's saying is unless you vote up the new agreement any pay review can't have regard to the rates in the new agreement because the rates in the old agreement would apply.

PN760

MS DOUGLAS: Well, I understand that the particular clause about pay reviews simply - - -

PN761

THE COMMISSIONER: Is pretty useless.

PN762

MS DOUGLAS: Yes, it simply specifies that they happen in March each year. There is full discretion to the company, it doesn't give any particular guarantee that there will be a pay rise so putting - - -

PN763

THE COMMISSIONER: All he's saying is in order for the pay rise to occur in 1 March and for us to apply the new rates, you have to vote this agreement up. I can't understand how that's unfair.

PN764

MS DOUGLAS: Well, I don't understand that it's necessarily him saying there's a pay rise to be happening on 1 March but simply that the current agreement provides a review which any pay rise would be at the discretion of the company but to - - -

PN765

THE COMMISSIONER: Yes, so what are the employees losing?

PN766

MS DOUGLAS: What the applicant submits is - - -

PN767

THE COMMISSIONER: Just help me out here. Take me to the attachment again. What page of the court book?

PN768

MS DOUGLAS: Sorry, sir, I'm not sure exactly what you're referring to. The enterprise agreement?

PN769

THE COMMISSIONER: No, no, no, no. You said that he made the statement and that he confirmed the statement in a document.

PN770

MS DOUGLAS: Yes, I'll just bring it up, I'll just try to find the right number to direct you to. It would be MS6 of the court book.

PN771

THE COMMISSIONER: MS6?

PN772

MS DOUGLAS: The email from Mr Spencer dated 22 February and at point 4 he says that, 'The March 2022 pay review is dependent on a positive outcome of the enterprise agreement'.

PN773

MS POLE: Sorry, that's not what he says. He says, 'The outcome of the March 2022 pay review is dependent.'

PN774

MS DOUGLAS: Sorry, that's not what I said.

PN775

MS POLE: Sorry, I may have misheard. That's not what I heard.

PN776

MS DOUGLAS: Apologies. I rely on the words there.

PN777

THE COMMISSIONER: Yes, I think it underscores the point that I've been making. He's not saying there will be no pay review, he's saying the outcome of it. So in order for there to be an uplift in March 2022 this agreement has to get voted up with the new rates in it. That's all he's saying. It's a statement of fact.

PN778

MS DOUGLAS: Well, I think the representation is that it's not just about the new agreement providing new rates but it's a new agreement with a lot of conditions and entitlements in it for employees, and by making that representation it pressures employees and almost blackmails them to say that - - -

PN779

THE COMMISSIONER: No, Ms Douglas, I think you're going beyond it now.

PN780

MS DOUGLAS: Certainly, so I'll retract and rephrase then. But in terms of making a statement that a new agreement has to be voted up for you which means you vote to the pay rates but you're also voting towards the other entitlements, and you have to do that in order that you receive an increase to pays from the current pay review process under the current agreement.

PN781

THE COMMISSIONER: Yes, Ms Douglas, maybe look I just think that's a completely unremarkable statement to say to employees, 'Unless you vote the agreement up you're not getting the rates that in the agreement.' Every employer does that.

PN782

MS DOUGLAS: But what we say is it's not the rates of the new agreement because if the agreement is voted up they get those rates anyway, but it's their action and how they choose to vote for the new agreement has impact on an entitlement for pay reviews and simply that - - -

PN783

THE COMMISSIONER: No, that's not what it says. It's the outcome. All he's saying is if you vote the agreement up now the rates will feed into this year's outcome on pay review.

PN784

MS DOUGLAS: I understand that was his intention but in terms of the comments that were made in the bargaining meetings to the employee representatives, a different interpretation could have been drawn from that.

PN785

THE COMMISSIONER: Take me to any of the evidence. Who says that they had a misunderstanding?

PN786

MS DOUGLAS: I don't have that evidence at hand to present to you, Commissioner.

PN787

THE COMMISSIONER: Yes, right.

PN788

MS DOUGLAS: Leaving aside the four good faith bargaining requirements which we say are required to be met by the respondent in the bargaining for this proposed agreement, I turn to the issue about the interim orders sought and whether or not there is, firstly, a serious issue to be determined and, secondly, the balance of convenience to make interim orders.

PN789

Dealing with the first matter about the serious issue to be determined, we submit that there has been sufficient evidence presented from many witnesses and the applicant submits that if the Commission is satisfied that there has been a failure by the respondents to meet the good faith bargaining requirements under the Act, then the prima facie case has been established and, therefore, that brings me to the balance of convenience question in making orders. The applicant submits that although the vote is scheduled to conclude tomorrow.

PN790

THE COMMISSIONER: At 8 am tomorrow.

PN791

MS DOUGLAS: Yes, that's right. The applicant's submissions are that there has been conduct by the respondent impacting on that voting process and the fundamental issue is good faith bargaining is required by bargaining representatives and where there has been a breach of that it should be rectified, particularly in this case in the interests of transparency and fairness, that any misleading statements should be retracted and confirmed insofar as they have any impact on the employees and their approach to the vote.

PN792

But also in terms of keeping the bargaining process as intended by the legislation which is to ensure bargaining representatives are held to the requirements to bargain in good faith, and where there has been a failure by the respondent to give genuine consideration or, indeed, to provide reasons for any of its responses to claims made by employee bargaining representatives, that the respondent should be held to the standard the legislation sets of good faith bargaining.

PN793

This process, this bargaining process, for the current proposed agreement in this matter – sorry, the bargaining process for the proposed agreement here in this matter, it did occur in meetings. It was verbally and in person. There's not a lot of, well, there's no evidence of documentation that's been exchanged until after the conclusion of the meeting. So the bulk of it was done from the first day in meetings on the Tuesday and all of that happened verbally. There's no minutes other than the proposed documents that the respondent circulated at the end of the day on Wednesday.

PN794

There hasn't been any record-keeping and through that verbal process the issues of good faith bargaining seem to have arisen and so our suggestion that the proposed orders seeking that the interaction between the bargaining parties happens in writing to ensure that good faith bargaining is obtained and that taking them out of a verbal interaction will ensure that those requirements can be met in writing.

PN795

THE COMMISSIONER: But I'm troubled by that. There's no requirement in the Act that proposals and responses be in writing. If the parliament had wanted that it would have put in the legislation. I'm troubled by a suggestion that I should make an order to compel that. I mean, how about just the people who attend the meetings take better minutes?

PN796

MS DOUGLAS: I do accept, Commissioner, that there absolutely is no requirement for any party to put the proposals or their responses in writing, however, our suggestion is that given verbally, the issues have come up through a verbal process, that to have the parties complete the process in writing will provide an avenue to ensure that they do comply with good faith bargaining. But if you're not satisfied with that approach, then of course the same orders could be made that the parties do bargain by meeting the requirements to provide genuine consideration and reasons, and that could be done verbally if the Commission is not satisfied that it should be done in writing.

PN797

THE COMMISSIONER: But I'm here dealing with an interim orders application. The only interim order that I would be minded to make is an order that the company cease the current vote and then we have to program a substantive dispute and you can make some submissions there about what the orders for good faith bargaining orders should be.

PN798

I'm not here to make good faith bargaining orders, I'm here to make an interim order about whether or not I stop the vote to finish tomorrow. But I am conscious of the fact that in making that interim order it likely just leads to a winner of the substantive matter. If I don't stop the vote and the vote gets voted up, then the application will be made. The AWU will be able to challenge its approval if it wanted to.

PN799

If I do stop the vote then, you know, I assume the company will have some further – I mean, the company could write to you and respond in some detail about why it's rejecting CPI increases, why it's rejecting having the provisions in the agreement. It could cure with one letter your complaints about genuine consideration and response which I think really is your strongest argument. And then go out to vote again the day after. So I'm very conscious of the fact that I'm probably deciding the substantive dispute at the time I'm deciding the interim dispute.

PN800

MS DOUGLAS: It does appear that given the evidence required for the issue with the interim orders, it necessarily lends itself to final orders as well. I don't have any further comments to make on that.

PN801

THE COMMISSIONER: Not so much final order but the finality of the matter.

PN802

MS DOUGLAS: Well, true, yes, yes, Commissioner. I don't have any other points to raise but should there be any questions, I'm happy to take those.

PN803

THE COMMISSIONER: Yes, thank you, I've been greatly assisted, Ms Douglas. Ms Pole.

PN804

MS POLE: Thank you.

PN805

THE COMMISSIONER: I think, you know, Ms Pole, as I said, I'm here dealing with interim orders, an application for interim orders. As you correctly put in your submissions, I have to determine whether the applicant has an arguable case and I have to determine balance of convenience. If at a substantive hearing the evidence fell out, as it's fallen out before me, surely it would be open to me to find that there has not been genuine consideration and there were not reasons given in respect of some of the claims.

PN806

It can't be satisfactory that the reason given is of, 'A CEO won't agree to it.' That's a reason why Mr Spencer can't agree to it; it's not a reason why the company won't agree to that claim. It seems to me on that point it would be open to, on a final matter, to find that there was a breach of 228(1)(d).

PN807

MS POLE: Perhaps let me address - - -

PN808

THE COMMISSIONER: Then you come to balance of convenience. What does the company lose really by stopping the vote today? Nothing. So they're the things I want you to address me on. I'm being very open with you, I think the strongest argument the AWU has is 228(1)(d). I'm looking at the minutes, I'm looking at the evidence. It doesn't look as though there was very much genuine consideration at all. It looked like it was done on the run, pretty flippant. 'No, we're not going to agree to that. No, the CEO won't agree to that.' That doesn't look like genuine consideration. And to the extent that the CEO's reasons, and he is the directing mind of the company, were not explained, there were no reasons provided.

PN809

MS POLE: Yes.

PN810

THE COMMISSIONER: So I want you to address me on that in the context of all they have to establish is an arguable case. That's all they have to establish. I'll hear from you now.

PN811

MS POLE: Certainly. Moving straight to that point in that case. I think firstly I'd like to note that paragraph 22 of Mr Spencer's statement doesn't indicate that he only said, 'Our CEO will not agree to it.' His evidence in his statement is that he did provide further explanation which talked about the exchange rate and the gold price, and things that the company does not have control over.

PN812

So the response or the reasons for not agreeing to the request regarding CPI that was provided, was not simply, 'The CEO cannot agree to it.' It was expanded upon as to the reasons why the CEO cannot agree to it. Now, I accept that in the sort of the context of these negotiations maybe not all parties have walked away with that as their clearest recollection but that is the unchallenged evidence before you and so our position firstly, as I say, is that it's not the case that no explanation was given. We would say there was further explanation given.

PN813

The second point I'd like to make there is that at the time that explanation was given and subsequently, at no stage did the AWU raise that they felt that that explanation was inadequate until 25 February at which time the access period had already commenced. So the extent that the AWU felt that that explanation was inadequate or that genuine consideration was not given, I don't have any evidence that that was mentioned at any point prior to 25 February and, as I say, the access period had already started at that point in time.

PN814

In a context where a verbal request is raised and a verbal response is given, and no indication is given that the response that was given was inadequate, no request was made for further consideration or further detailed reasons, the employer had no reason as a group to believe that it's response had been unacceptable. I fear that making orders in that scenario could result in a situation where when an employee bargaining representative is unsatisfied with the outcome, they can pick across the previous bargaining that has occurred and pinpoint an issue where they say adequate reasons were not given, and despite the fact that that hasn't been flagged at the time, use that as an excuse to subsequently stop the vote.

PN815

In terms of the balance of convenience and the burden of proof here, I'm conscious of the precedent that would be set if a finding was that despite the AWU not flagging at the time that they did not consider that the consideration given was genuine or that further reasons should have been provided, it creates a problematic approach, as I say, where retrospective, looking back, can be used to stop a vote.

PN816

THE COMMISSIONER: What you say then, in effect, is if you're dissatisfied with the consideration for the reasons, you've got to ask about that sooner. You can't sit on your hands and then use it as a sword later in time?

PN817

MS POLE: Yes, that's our submission.

PN818

THE COMMISSIONER: Yes.

PN819

MS POLE: I would also submit that in the context of a verbal request that was made, there was no further evidence for the employer to consider here. There was no costings provided, there was no benchmarking provided by the AWU as to why CPI was a reasonable amount. CPI, the figure, wasn't discussed. There was nothing other than effectively what I would characterise as a comment or a suggestion.

PN820

Our submission is that it was entirely appropriate for the employer to provide a similarly weighted response and, as I say, in a context where no request was made for further details and also no further costings or evidence or further information was provided by the AWU to support that claim, it was entirely an appropriate response by the employer to give.

PN821

THE COMMISSIONER: I understand the submission, thank you.

PN822

MS POLE: Thank you. I briefly want to also touch on noting that that is a key concern for the Commissioner, there's also been some comments made, some submissions made by the applicant today about some misleading statements that should have been retracted or misrepresentations made and I think I understand the applicant's case is referring in particular to the email that was sent to the employee bargaining representatives about having an in-principle agreement.

PN823

I think it's important to note firstly that we don't have evidence in front of us here today that anyone was, in fact, misled. We also don't have evidence that that specific statement about having an in-principle agreement was conveyed to any employee. So I think to say that there was a misleading statement conveyed to employees is a stretch. There's no evidence of that.

PN824

But I also just want to hark back to that jurisdictional point that I raised which is that today is really the first time that this has been raised as a problem by the AWU and under the Act they have an obligation to the extent that they consider the employer has not met the good faith bargaining requirements, they need to set that out in a letter and give the employer an adequate opportunity to respond and rectify any conduct before they can bring a good faith bargaining application. And any concerns about misleading statements made about having an in principle agreement is not contained in the letter of 25 February, and I believe it's not even in the amended F32. It's really - as I say, is the first time that I am aware of that being a position of the AWU.

PN825

I appreciate that there is ability for the Commission to make orders regardless of that jurisdictional point under section 229, but I just want to make clear that in terms of the case that we have been given the opportunity to run here today, from a prejudice perspective, I don't consider that the respondent has been put on sufficient notice that the applicant was proposing to run that as an argument.

PN826

THE COMMISSIONER: But in any case you would say to the extent that there's some claim of misleading conduct by the employer about the AWU's attitude, MS10 cures that?

PN827

MS POLE: Correct. Thank you, Commissioner. Yes, absolutely. We would say that any employees - there's been a significant campaign run by the applicant and there's two exhibits attached to Mr Spencer's statement that evidence that, but also a quick Google search will bring up articles in a national newspaper citing comments by Mr Gandhi. It's publicly and nationally known that the AWU opposes this agreement.

PN828

And, so, if there was an employee out there who felt they had been misled or not had an adequate opportunity to put forward claims or confer with the union, I would have expected that evidence would be readily available and it has not been led. So, all I can do is draw an ‑ ‑ ‑

PN829

THE COMMISSIONER: Yes.

PN830

MS POLE: ‑ ‑ ‑inference from that and ask you to draw an inference from that that evidence is not available. I would also just note as well Mr Spencer's evidence about the vote uptake. When Mr Spencer's evidence was filed it was that there was a 68 per cent vote uptake. It's not in evidence but it's gone up from there, but nonetheless that is a substantial vote uptake. That's a significant percentage of employees voting, so, again, that indicates that this is an informed, engaged workforce who have a strong desire to vote on this enterprise agreement, and have done so, and I would say that that's a significant factor that should be taken into account by the Commission when weighing the balance of convenience, that stopping the vote - you asked me the question, 'What does the company lose?' It loses that 68 per cent engagement by its workforce who, as I say, is strongly desirous of voting on this enterprise agreement.

PN831

I appreciate we don't have a crystal ball and can't look into the future, but if this vote is stopped and employees are asked to re-vote down the track, I think that that creates two problems: firstly, it creates the problem where potentially an employee who has voted once thinks, 'Why bother, I've already voted. I don't have the will or the energy. The vote could get stopped again'. It sets a dangerous precedent, but it also potentially could lead to a lower vote outcome. So, this decision made today could change the future of this agreement, and whether or not this agreement is approved or not.

PN832

Commissioner, there was one further point that I thought I should address very briefly, Ms Douglas had made some submissions about inadequate reasons being provided in respect of a change to annual leave. I just wanted to make the submission that that's not a claim that was made by the applicant, so to the extent that the applicant considers insufficient reasons were provided to the bargaining representative that made that claim, I don't believe that's a claim the applicant can make here today.

PN833

It seems like a side issue, but I didn't want to leave it unaddressed, and just to note that, firstly, the respondent doesn't agree, our submission is that adequate reasons have been provided. But, secondly, it's largely irrelevant, because it can't be the applicant's case that inadequate reasons were provided for any change to the annual leave clause because that was not the claim they put forward.

PN834

Commissioner, did you have any questions for me that you would like me to address in closing, other than what I have already addressed?

PN835

THE COMMISSIONER: No, the matter clearly agitated in my mind is 228(1)(d).

PN836

MS POLE: Thank you. Then, as I say, our submission on that point is that further explanation was provided, and, secondly, that the explanation that was given or the reasons given were appropriate based on the way the claim was put to the respondent, if we can call it a claim. And, thirdly, just that point again, that the applicant did nothing, when they received that explanation and the reasons given, they didn't identify that that was inadequate. They didn't request further consideration. They didn't request further reasons. They didn't request anything from the CEO. And it was only on 25 February that any concerns were raised by the applicant there.

PN837

One other point that I can perhaps say to persuade you, is that enterprise bargaining is a representative process. It's common that a company will provide a representative; that employees will have representatives. And the bargaining will be conducted by the representatives in the room, and at no stage did the applicant identify that they felt Mr Spencer didn't have appropriate instructions, or wasn't an appropriate representative. He clearly was there as the representative for the company as the mouthpiece for the company.

PN838

We've also heard evidence from Mr Spencer today that he did have a clear mandate. He understood the terms of what he could negotiate. He had clear instructions from the CEO as to the parameters of the negotiations. There was some flexibility within that, but he understood what his parameters were, and in responding with the understanding of what his parameters were and what the CEO's position was he was conveying the company's position, which he was well aware of. And he had no reason to believe that the CEO's position had changed from the mandate.

PN839

And, further, he wasn't given any information by the applicant that he needed to take back to the CEO to get further instructions. So, in that context, we would say that Mr Spencer, as the representative for the company, provided an adequate response in all the circumstances.

PN840

THE COMMISSIONER: Are they your submissions?

PN841

MS POLE: They are.

PN842

THE COMMISSIONER: Thank you. Anything in reply, Ms Douglas?

PN843

MS DOUGLAS: Thank you, Commissioner. Just in terms of a point that Ms Pole made about the AWU only putting the respondents on notice about the lack of reasons in relation to the claim for an annual pay increase, whether that's on CPI or some other safety net, I just point out that there was written notice given by the applicant to the respondent on 25 February. And at that point the vote had not opened yet, and in that notice the AWU asked for re-engagement by the respondents in the bargaining process, and sought for a reply from the respondents by 1 March, which also was before the planned day that the vote would open.

PN844

So, the applicants did act to try and intervene before any vote process was live. And it's not a fair characterisation to say that the AWU sat on his hands with the intention of trying to stop the vote retrospectively.

PN845

THE COMMISSIONER: But what about this, I mean, if the AWU is dissatisfied, why aren't they raising it there on the spot, saying, 'This is not good enough'? Why did they wait eight days?

PN846

MS DOUGLAS: I don't have instructions on that point, Commissioner, but I do note that Mr Gandhi's evidence was that he said - he pointed out you do have obligations of good faith bargaining, you do have obligations to respond, or at least to pretend to respond. So, there has been some evidence provided that there was an engagement on that point by the AWU in the bargaining meetings.

PN847

I just wanted to clarify the timeframe and the implications of the timeframe about the written notice on 25 February, and that it wasn't during the voting period.

PN848

THE COMMISSIONER: Is there anything further?

PN849

MS DOUGLAS: No. Thank you, Commissioner.

PN850

THE COMMISSIONER: I thank the parties for the material. There's one housekeeping matter, I did forget to mark the FAQ document. The FAQ document is exhibit 28 in the proceeding.

EXHIBIT #28 FAQ DOCUMENT

PN851

THE COMMISSIONER: I thank the parties for the materials, the evidence and the submissions. It's necessary for me to reserve my decision and I do so. I'm obviously conscious that I will need to issue - it might be that I will just issue an order tonight, either dismissing the application or stopping the vote, and my reasons for decision will follow in due course.

PN852

MS DOUGLAS: Thank you.

PN853

THE COMMISSIONER: We are adjourned.

ADJOURNED INDEFINITELY [4.32 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL SPENCER, AFFIRMED......................................................... PN415

EXAMINATION-IN-CHIEF BY THE COMMISSIONER..................... PN415

EXHIBIT #12 WITNESS STATEMENT OF MICHAEL SPENCER.... PN422

CROSS-EXAMINATION BY MS DOUGLAS......................................... PN427

THE WITNESS WITHDREW.................................................................... PN462

MICHAEL SPENCER, RECALLED......................................................... PN476

CROSS-EXAMINATION BY MS DOUGLAS, CONTINUING............. PN476

THE WITNESS WITHDREW.................................................................... PN609

EXHIBIT #26 GOLD FIELDS COMPANY'S ENTERPRISE AGREEMENT TABLE OF CHANGES DOCUMENT...................................................... PN616

EXHIBIT #27 EMAIL DATED 23/02/2022 NOTIFICATION OF ACCESS PERIOD AND VOTING DETAILS........................................................... PN618

MICHAEL SPENCER, RECALLED......................................................... PN621

CROSS-EXAMINATION BY MS DOUGLAS, CONTINUING............. PN621

RE-EXAMINATION BY MS POLE.......................................................... PN657

THE WITNESS WITHDREW.................................................................... PN679

MICHAEL SPENCER, RECALLED......................................................... PN681

RE-EXAMINATION BY MS POLE, CONTINUING............................. PN681

THE WITNESS WITHDREW.................................................................... PN689

EXHIBIT #28 FAQ DOCUMENT.............................................................. PN850