PN1

THE DEPUTY PRESIDENT: Good morning. Mr Williams, you are appearing for the applicant?

PN2

MR P WILLIAMS: That is correct.

PN3

THE DEPUTY PRESIDENT: Ms Lee, you are appearing for the union in its capacity as a bargaining representative?

PN4

MS J LEE: Yes, thank you Deputy President.

PN5

THE DEPUTY PRESIDENT: I've listed this matter this morning because I have a number of concerns about the state of the information provided in the various declarations which have been filed, in particular the declarations that were filed initially in support of the application for approval and the subsequent emails and various declarations that have been filed in response to questions from staff commission about various matters.

PN6

What I am going to do is set out my concerns, they will be recorded in the transcript, and I will give the employer an opportunity to consider the matters. I will have the transcript produced and I will give the employer seven days after the transcript is produced to rectify what are numerous deficiencies in the documentation that has been provided.

PN7

Let me begin with the question of the notification time. Now the notification time is the time at which the employer initiates bargaining or agrees to bargain. The statutory declaration initially filed in support of the application does not contain any details about the notification time. So in answer to question 17 in the declaration, 'What was the notification time for the agreement?' The information is blank. So it was rather surprising to get an email in response to that query which suggests that the employer is unclear how that could not be clear. It could not be clear because the question was asked and it wasn't answered.

PN8

The subsequent declaration that was filed suggests - this is a declaration from - in fact two declarations; one from Mr Randall and the other from Mr Pullar, both of which assert that the notification time was 18 November 2021. Now that is rather surprising given what appears in the earlier paragraph to the same declarations which suggests that the notice of employer rep rights was given to employees on 16 September 2021, that is almost two months earlier than the notification time that is alleged in the declaration. It is all the more surprising given that the notices of employee representation rights asserts that P Pullar & Co gives notice that it is bargaining.

PN9

So at the very least at the time the notice was given, which is said to be on 16 September 2021 in the latest declarations that were file, the employer plainly had either agreed to or initiated bargaining. So I understand how a notification time could be said to be 18 November. So that issues needs to be rectified because what follows from that affects whether or not the agreement has been properly made.

PN10

For example, notice of employee representational rights must be given as soon as practicable or no later than 14 days after the notification time for the agreement. I still don't know what the notification time for the agreement was. The date on which the employer alleges in its most declarations simply can't be right. So that needs to be clarified. Surely the employer knows when it agreed to bargain or initiated bargaining, it must know that.

PN11

MS LEE: Deputy President, would it be useful if I provide some information from our organiser?

PN12

THE DEPUTY PRESIDENT: Well, your organiser is who, Ms Lee?

PN13

MS LEE: That's Mr David Bish. Unfortunately he couldn't be here today but obviously I've taken instructions.

PN14

THE DEPUTY PRESIDENT: Yes, well, again, according to the initial declaration that was filed in answer - or the erroneous answer given to the question, 'What steps did you take to give employees the notice?' The only information that is provided is that on 16 August 2021 the union formally advised of its log of claims, which isn't responsive to the question, but I'm assuming that information, so far as it concerns the log of claims, is correct?

PN15

MS LEE: Look, I understand that on or around 6 August the parties had an initial meeting and at that meeting the union presented the log of claims. In our formal log of claims there's always a reference to make sure that you've issued the NERR. It was discovered very early on in that meeting that the NERR hadn't been issued and so our organiser said, look, we can't begin bargaining yet, you must issue the NERR and I think, you know, a month after that date the NERR was issued by the employer.

PN16

THE DEPUTY PRESIDENT: In any event all of that will need to be explained in a properly completed statutory declaration in support of its application. So I will give the employer an opportunity to - and perhaps with the assistance of you Ms Lee - to complete the statutory declaration accurately and respond to the questions that are asked because it's the statutory - - -

PN17

MR WILLIAMS: Can I - - -

PN18

THE DEPUTY PRESIDENT: I'll come to you in a moment, Mr Williams. The purpose of the statutory declaration is to give me, as the decision maker, all of the information that I will need to complete my assessment as to whether or not the agreement should be approved. Yes, Mr Williams.

PN19

MR WILLIAMS: Deputy President, I'm sorry if I don't get the title correct. I have got to say at the outset we probably are a little nave, we've never ever filled out these forms before. So we apologise if there are errors in the way we've filled it out, we've tried to be absolutely open and honest and if there is an error it's an error in our naivety, not because we are trying to deceive you.

PN20

THE DEPUTY PRESIDENT: I am not suggesting that anything that was done was done deliberately because if that were the case that would raise much more serious consequences. It is apparent to me whoever filled out this form didn't understand the questions and that is reflected in the answers given. But I just want to go through each of the issues so that you are clear as to things that I need.

PN21

So, firstly, I need the employer to specify the notification time, that is when did it agreement to bargain, noting that the union served its log of claims sometime in early August 2021. So there's that issue.

PN22

The second issue relates to the date on which the employer gave the notice of employee representational rights with the last of those notices. Now, as I said the declarations that were filed by Mr Randall and Mr Pullar both suggest that the NERRs were placed on the notice board on 16 September 2021. Now that is inconsistent with the information that is provided in the statutory declaration which again gives a date, albeit its apparent that it's a date where something else happened, but it suggests in answer to question 19, that is, 'What is the last date on which the employee representational rights notice was given to employees?' The date specified is 16 December 2021. Now I know that that is not the date but that is what the information is and those two statements are inconsistent. So you need to lock down the date on which the notice was given.

PN23

The third issue relates to the information that was provided in respect of the time, place and method to be used to determine whether or not the agreement would be approved by employees. So the answer to the specific question addressing that issue, which is question 20, simply tells me that on 16 December employees were advised of a vote to be taken post-Christmas. Now, that doesn't tell me the date on which or the time on which the vote will take place or where it will take place or even the method. Voting can be by show of hands, it can be electronically or by secret ballot, none of that information is contained in there. Nor do I have any document which shows what the employees were advised.

PN24

So I need to know what information was given to the employees about the date of the vote, the time, the place at which it will occur and the method. The information provided in the statutory declaration doesn't provide that information. If the notice to employees about the voting was in writing then you need to provide me with a copy of that notice.

PN25

If there are deficiencies in relation to any of these matters then you also need to consider whether you want to ask me to exercise my discretion under section 188(2). I suspect there probably are some deficiencies based on the information that I have been provided.

PN26

Now, as to the explanation of the terms, the statutory declaration provides simply that in answer to the question, 'What steps were taken to explain the terms of the agreement and the effect of those terms?' Simply tells me that on 18 November there were negotiations, discussions with employees through David Randall, draft EBA provided to all. That tells me nothing.

PN27

As the authorities make clear I need to know something about what was said to the employees about the agreement. That is I can't assess whether reasonable steps were taken to explain the terms of the agreement and the effect of those terms unless I know what was said about them. Now, it may be that this is a rollover agreement and that employees have been working under a similar agreement and there were minimal changes. Well, then you can tell me that and you can tell me what was said about the changes so that I can make an assessment, because I can't make an assessment about whether or not that issue - the reasonable steps were taken based on the limited information that I have.

PN28

The information provided in the subsequent declarations of Mr Randall and Mr Pullar which are in the same terms don't add to that, they simply tell me that Mr Pullar and Mr Williams union organiser Bish spoke to employees and ran through the document that had been agreed. That doesn't tell me about what was said. I can't assess whether or not there were reasonable steps about explaining the terms and the effect of those terms based on that information. The mere assertion that the terms and the effect of the terms was explained doesn't assist, because I don't know what was said. Whoever addressed the employees will need to set out what it is was said about the agreement in that meeting or those meetings so that I can properly assess whether reasonable steps were taken.

PN29

In relation to the terms of the agreement, the dispute settlement term allows for employees to be represented by the union in connection with any disputes. That provision is deficient because it does not provide for representation as required by section 186(6) which requires that I need to be satisfied that the agreement includes a term which, amongst other things, allows for the representation of employees to be covered by the agreement. All that this agreement does is allows for employees to be represented by a union. Whilst in most cases union members will want to be represented by the union, the agreement can't be so limited. What my chambers asked the employer to consider is to provide an undertaking which addresses that issue, instead we get a statutory declaration which says, in effect, well, the agreement doesn't preclude that. Well, that might be right but that's not what 186 requires. 186 requires the agreement to actually allow that representation in terms.

PN30

MR WILLIAMS: We understand but this is a rollover agreement and that particular clause is what was in the previous agreement.

PN31

THE DEPUTY PRESIDENT: I don't know who approved the previous agreement, but I am dealing with the application now and I am telling you - - -

PN32

MR WILLIAMS: I understand. I understand how it has come about.

PN33

THE DEPUTY PRESIDENT: And that term does not comply and there will need to be an undertaking if you want me to approve the agreement.

PN34

The final matter relates to the late lodgment. Now, there seems to be some misunderstanding, as is apparent from the documents, that the agreement was - well, if I look at the application, which is the form 16, there's an explanation for the late lodgment. It proceeds upon the misapprehension that the agreement was made effectively when it was signed on 3 February 2022. Now, the agreement isn't made when it's signed, the agreement is made when it is approved by a majority of employees voting on the agreement. That occurred on 10 January 2022, so that lodgment had to have occurred by the end of 24 January 2022.

PN35

So the explanation that is given in answer to question 1.4 of the application doesn't tell me anything about why the agreement was lodged late. It tells me why the agreement was lodged late after it had been signed but by 3 February, when the agreement was signed, the agreement was already late. So there will need to be a revised explanation as to the circumstances which led to the late lodgment, in particular the period between 24 January and 3 February when the agreement was signed. I accept the explanation so far as the subsequent delay is concerned but you'll need to explain why it is that it wasn't lodged at an earlier time and specifically within the 14 days as the statute requires.

PN36

So those are the matters that you'll need to address. The most efficient way of dealing with most of the matter, save for the undertaking, is to provide an amended or a new form F17 and to provide an amended form F16 which addresses question 1.4 in the knowledge that the agreement was made not on 3 February 2022 but on 10 January 2022.

PN37

I am sure Ms Lee will be able to provide the employer with some assistance to deal with these matters and as I said I will order the transcript today and have it delivered to you early next week so that you have a record of my concerns and you can address them and I'll give you seven days from the date on which you receive the transcript from my chambers, in which to file an amended application and a new form F17 correctly completed together with any other document you wish to provide and then I'll determine the matter together with the undertaking that I have sought or suggest you make. Then I will consider the application and determine it.

PN38

All right. Ms Lee you will be able to assist.

PN39

MS LEE: Certainly, Deputy President. Obviously you have the discretion to overcome some deficiencies. I know that there are quite significant time line issues. Supposing that - I mean, obviously you understand that this is a small site, they don't have - - -

PN40

THE DEPUTY PRESIDENT: I do and I'm not going to knock off the agreement if some of the issues can be addressed and you can make some submissions about whether or not some of the other errors are technical irregularities which didn't affect the (indistinct) agreement. So I am happy to receive, in addition to those matters, any submission that the employer and/or the union want to make about exercise of my discretion under 188(2).

PN41

MS LEE: I was just seeking your views as to whether it might be more beneficial to start the process again and sort of and just to make sure that all those time lines are met appropriately.

PN42

THE DEPUTY PRESIDENT: Lets have a look at what emerges from the revised stat dec. There has already been significant delay between the date on which the agreement was made, being January 10 and here we are now on 17 March. So I don't want to unduly delay matters. It is obviously open to the employer, if they wish to discontinue the application and start the process again. As you point out Ms Lee there are a number of deficiencies. It seems to me that what happened, and I am not going to put words in your mouth, is that the union wanted to commence bargaining some time in early August. There wasn't a notice of employee rep rights, they asked for one to be issued, one was issued it appears sometime in September - 16 September 2021. It might be that that's the date of the notification time and that's the date on which the employer agreed to bargain. If that's the case then the employer can say so.

PN43

There's no difficulty with the NERR being issued on that date. So things might fall into place. It is probably evident, Ms Lee, that the employees weren't informed of the date, time or method of voting as required and that's a difficulty but the fact of the matter is that the employees were given a vote, they were represented by the union. The voting was unanimous, so far as I can tell. So those are all factors which go to the question of the exercise of my discretion.

PN44

But what I can't have is a statutory declaration on the record in the manner that has been filed because - and to then approve the agreement, because the declaration is wrong in some many areas, it's just not responsive to the questions. That needs to be rectified. So you can either do that and hopefully we can get this thing through or, alternatively, you can start again.

PN45

MR WILLIAMS: I am happy to (indistinct) directly with Ms Lee to complete the - there might have been a few misunderstanding of the terms but now that we've got that we can - I think it was done. So I am happy to work with Ms Lee to fill that form out.

PN46

MS LEE: See how far we can stretch this discretion to exercise - - -

PN47

THE DEPUTY PRESIDENT: I'm not going to turn myself into a pretzel. There will either be a proper basis or not but there are a number of issues that need to be rectified and no doubt in other circumstances, Ms Lee, if you were opposing the application for approval you'd be telling me that these errors are so fatal that the agreement should not be approved. I am mindful of the fact that the union appears to have been involved in the whole - at least its local official to have been involved in the whole process.

PN48

Can I also make this observation, Ms Lee, that in the union's statutory declaration that it filed it's given an opportunity to comment on whether it disagrees with any aspect. They've elected not to which I have to say to you is unhelpful. A cursory review of the statutory declaration filed by the employer would have disclosed that it wasn't answering the questions that were asked. This might have been able to be rectified much earlier.

PN49

In any event it is what it is. As I said I will have the transcript delivered to the parties as soon as practicable and then you can have seven days after that. If you need more time just contact my chambers and I'll facilitate that. I want to focus everybody's attention.

PN50

All right we will adjourn on that basis. Thank you for your attendance. Have a good day.

ADJOURNED INDEFINITELY [11.57 AM]