PN1

THE ASSOCIATE: In the matter of B2022/76, for hearing.

PN2

THE DEPUTY PRESIDENT: All right, thank you parties. I might just start by taking appearances, Mr Flanagan?

PN3

MR R FLANAGAN: Yes, if it pleases the Commission, Flanagan, R, for the Australian Workers' Union. With me is Mr Mundy.

PN4

THE DEPUTY PRESIDENT: Thank you, Mr Flanagan and Mr Mundey.

PN5

MS MASTERS: Yes, may it please, Deputy President, Ms Masters, appearing on behalf of the respondent, and I have beside me Mr Rodney Burl.

PN6

THE DEPUTY PRESIDENT: Thank you, Ms Masters and Mr Burl.

PN7

Perhaps, just by way of administrative overview, just so we're all on the same page as to how we want to proceed, I note that things have been organised, quite efficiently, between the parties so far. Was it envisaged that we deal with the witness statements first and any other documents that might be tendered, and I'm not even sure if there are any other documents that might be tendered, by each party, and then we're - or was there intending to be openings or closings? What was the - - -

PN8

MR FLANAGAN: I think where we're at, Deputy President, is the union wishes to call some brief evidence in reply, in relation to the supplementary statement by Mr Burl. We propose to follow that with some brief cross‑examination of Mr Stephens. The union relies on the written outline of submissions that we've provided in the matter, so we don't propose to make any further submissions. We would hand that over to Ms Masters, if she wishes to speak to her outline.

PN9

In terms of additional documentation, we don't have any to tender now, but I think it was identified, in the inspection, that it would be helpful if you had a map of the company's operations. My understanding is that we can obtain that from the sustainability portal, which is on the company's website. So subject to checking with Ms Masters, that she's happy with the relevant document, we agree on that, then we would forward that to you, following the hearing. I think, procedurally, that's where we're at.

PN10

THE DEPUTY PRESIDENT: All right, thank you. That sounds sensible.

PN11

Ms Masters is that, broadly speaking, the process that you were intending or content to follow for today?

PN12

MS MASTERS: Content to follow that, Deputy President. I don't intend to do any opening. In terms of tendering further documents, happy to do that when we open the respondent's case, so to speak, to take you through the documents we rely upon. I wasn't aware of the agreement about providing that, happy to do that and we can do that subsequent to today's proceedings in any case.

PN13

THE DEPUTY PRESIDENT: Yes. And, look, in relation to the map, given that there has been an inspection this morning, it was just - it was something that I asked for, just partly because various descriptions were given to me about locations. The locations are a bit more familiar to possibly everyone else in this room, other than me, so I thought a simplified map might be useful. I certainly wasn't looking for a document to be created and any simple document that's already in existence for some other purpose would be more than sufficient, if the parties were content on that basis.

PN14

Mr Flanagan, just in relation to evidence, I think it would be desirable to certainly complete the applicant's evidence first, but were you intending to wait until the respondent's evidence is complete as well and then you would go into submissions, Ms Masters go into submission was that - or did I misunderstand it. Do you want to complete your evidence and then go into your submissions? I might - - -

PN15

MR FLANAGAN: I simply going to deal with the evidence.

PN16

THE DEPUTY PRESIDENT: Evidence first and then submissions. Yes, that's what I was hoping.

PN17

MR FLANAGAN: Yes, if that's - - -

PN18

MS MASTERS: Sorry. Deputy President, the only point I would make, in respect of Mr Mundey giving response evidence is, ideally that would have been given prior to today, in some written form, so that we were in a position to consider that. I'm not going to oppose him giving the evidence, however it may be the case that, depending on what he says, I may need a brief moment to take some instructions about it, if that would be - - -

PN19

THE DEPUTY PRESIDENT: I understand and accept that. In part, I anticipate Mr Flanagan will say Pandora's box was opened by the latish, and I'm not being too critical, latish delivery of the supplementary statement of Mr Burl, so we'll just - I accept that there might be matters arising that you are perhaps unable to deal with, on an evidentiary basis today. If there are, we can identify them and take it from there.

PN20

Can I ask for one other matter that is - it is, I think, as a matter of evidence, which would be in relation to the inspections that were undertaken this morning, both at the Feed Technician Centre in Hobart itself and at the Fish Farm, do the parties have - well, if there's aspects of that, those inspections that the parties want to draw my particular attention to, I think this forum would be a good way to do it. I can also indicate, for that matter, I'll be ordering transcript. But I think it would be useful if there are particular matters that the parties wish to draw attention to, for the things that I've seen and were shown or told about, on the inspection, that I should be having particular regard to, I perhaps ask that they be noted in this forum.

PN21

MR FLANAGAN: Perhaps if I can address that, Deputy President. You have before you a range of evidence about the work which was performed on the (indistinct) Farms, a range of evidence about work which is performed at the Feed Centre. The purpose of the inspection, more than anything, was to assist the Commission with understanding the evidence which is before it. So, for example, in the evidence of Mr Lockley and Mr McGee(?), they talked about when they were originally engaged as on farm employees they would travel on a vessel to and from the shore, well, we did that. So you've had the opportunity to see all of the work now, which is being contended for at various different positions, but the inspections were really for you to see and observe the workplaces so that that would assist with the evidence which was before you.

PN22

THE DEPUTY PRESIDENT: All right, thank you, I understand that. In which case I think we can commence with the applicant's case. Mr Flanagan?

PN23

MR FLANAGAN: I call Mr Mundey.

<DANIEL MUNDEY, AFFIRMED [2.11 PM]

EXAMINATION-IN-CHIEF BY MR FLANAGAN [2.11 PM]

PN24

MR FLANAGAN: Thank you, Deputy President.

PN25

Mr Mundey, can you please tell us what your occupation is?‑‑‑An organiser for the Australian Workers' Union.

*** DANIEL MUNDEY XN MR FLANAGAN

PN26

In that role what is your interaction with Tassal's Marine Operations workforce?‑‑‑So I provide advice, information and presentation to workers in that space.

PN27

I'd like to show you a copy or provide you with a copy of a statement by Mr Rodney Burles. If I can take you to paragraph 9 of that supplementary statement, I'll just wait, do you have the supplementary statement with you?

PN28

THE DEPUTY PRESIDENT: Yes, I have, thank you.

PN29

MR FLANAGAN: If I can take you to paragraph 9, Mr Burles says:

PN30

On 27 April 2022 I received an email from Mr Mundey, indicating the AWU did not agree with the proposed messaging and would speak with its members about the proposal 'from a neutral point of view'. A copy of the email from Mr Mundey is attachment RB10 to the supplementary statement.

PN31

If I can take you over to the document, which is headed RB10, a number of pages over. Now, do you agree that that is an email from you to Mr Burles?‑‑‑Yes.

PN32

So if I can take you to the second sentence, it says:

PN33

The union will speak with our members then form an opinion, based on their feedback.

PN34

What are you referring to there?‑‑‑Me, myself, as a union official, can't make a decision for the membership, the membership dictates what position the union takes.

PN35

So what steps did you take to speak with your members?‑‑‑So I had a series of meetings, which finished on 6 May, in which I visited all the sites and different shifts and spoke with them about the proposal and then got their feedback.

PN36

So how many different sites did that involve?‑‑‑So there's - well, there's a central, (indistinct), Okehampton, Dover, and Channel. The (indistinct), Okehampton, Dover and - sorry, I think they call it the Channel, have 7/7 rosters, so it's two visits to them, where the Central crews have night shifts, so that was four visits. But there was - with the Central crew there's some split amongst some crews, so, yes, there was quite a lot of visits to get everyone, but some groups will be double groups, if that makes sense.

*** DANIEL MUNDEY XN MR FLANAGAN

PN37

So what sort of timeframe did it take you to complete that exercise?‑‑‑So I completed that with - from Friday - the Friday prior to the 6th, I started that and I completed it around 10 am on Friday the 6th, but that was due to - usually it would take about two weeks, but due to - we were aware that the company might be putting it up to vote, so I guess I was doing three site visits in a day so (indistinct) one day I was at Dover at 6 am and (indistinct) at lunch time and back at Dover at 6 pm that night.

PN38

So are we talking about a process of two days, three days, five says, seven days?‑‑‑So I guess six - six days.

PN39

You say, in this email:

PN40

We can say that the union believes that bargaining has reached a point that we will talk with our members and discuss the proposal from a neutral point of view.

PN41

Can you tell us what you're referring to there?‑‑‑Yes, we just presented the facts of where we got to in the bargaining and then gave our members the options available to them and which option they were required to take and then obviously forming our opinion (indistinct).

PN42

So arising from that process, what was the feedback that you received from those meetings?‑‑‑There was a number of issues and the overall package wasn't satisfactory to the real issue.

PN43

When you finished that process did you communicate that to Mr Burles?‑‑‑Yes, I called him, I think about 3 pm on the Friday and said to him, yes, just a heads up that we received that feedback and that we were going to create information on the Monday supporting whatever they wanted (indistinct).

PN44

Prior to 6 May, you had not completed the feedback sessions you were - you embarked on?‑‑‑No, no. No.

PN45

Those are my questions, Deputy President.

PN46

THE DEPUTY PRESIDENT: Thank you.

PN47

MR FLANAGAN: If Ms Masters wishes an adjournment to talk to Mr Burles, we're happy with that.

CROSS-EXAMINATION BY MS MASTERS [2.17 PM]

*** DANIEL MUNDEY XXN MS MASTERS

PN48

MS MASTERS: I do have some brief questions for Mr Mundey.

PN49

So, Mr Mundey, you've been taken to a copy of an email that you sent to Mr Burles, on 27 April?‑‑‑Yes.

PN50

Mr Flanagan's indicated with you, in that email, you say that:

PN51

The union believes that bargaining has reached a point that we will talk with our members and discuss the proposal, from a neutral point of view.

PN52

You'd agree, wouldn't you, that discussing it from a neutral point of view is to not advocate with your members a yes or no vote either way?‑‑‑So, as I said, I presented the facts and then I presented the options available to them.

PN53

Without recommending a yes or no vote?‑‑‑No. They decided what position to take.

PN54

So what you're saying is, the members, having been presented with the views, then asked the AWU to represent a no vote campaign?‑‑‑Yes.

PN55

So is that - sorry, no further questions, thank you, Deputy President.

PN56

THE DEPUTY PRESIDENT: Perhaps before he's excused, I've just got one question. Sorry, Mr Mundey, you said that on the Friday, which I think is 6 May, you gave Mr Burles a heads up about the feedback and you were going to put out information on Monday supporting what the members had told him. Is that what you put out? Is that RB11, which Mr Burles refers to as, 'Flyer issued around 9 May', in paragraph 12 of his statement?‑‑‑Yes. Yes.

PN57

Thank you. Mr Flanagan, Ms Masters, anything arising from that?

PN58

MR FLANAGAN: Nothing, thank you.

PN59

MS MASTERS: No, thank you, Deputy President.

PN60

THE DEPUTY PRESIDENT: Mr Mundey may be excused?

*** DANIEL MUNDEY XXN MS MASTERS

PN61

MR FLANAGAN: Yes.

PN62

THE DEPUTY PRESIDENT: All right. Thank you, Mr Mundey, you can be released.

<THE WITNESS WITHDREW [2.19 PM]

PN63

MR FLANAGAN: Deputy President, we call Mr Tim Stephens.

PN64

THE DEPUTY PRESIDENT: What I was anticipating is perhaps we would have all of your material tendered first and then when the respondent's tender their material, when we get to Mr Stephens, you'll get your chance to ask questions of him, at that point.

PN65

MR FLANAGAN: Okay. Well, you have all of our material, Deputy President.

PN66

THE DEPUTY PRESIDENT: I certainly do.

PN67

MR FLANAGAN: So I presume it's simply a case of marking that material, is it?

PN68

THE DEPUTY PRESIDENT: I think that's correct. I don't think we need to mark submissions, but I will mark the actual evidence. Just as an administrative matter, are the parties working off a court book version of the material? So perhaps starting at page 43 of that, which is the witness statement of Clarissa Murphy, and annexures CM1 and CM2. Mr Flanagan, I assume you wish to tender that?

PN69

MR FLANAGAN: Yes, I do.

PN70

THE DEPUTY PRESIDENT: All right, we'll mark that A1. So the witness statement of Clarissa Murphy and the two attachments, CM1 and CM2, will be A1.

EXHIBIT #A1 WITNESS STATEMENT OF CLARISSA MURPHY AND ATTACHMENTS (COMMENCING PAGE 43 OF COURT BOOK)

PN71

Then we get to the next witness statement of Mr Eden O'Dwyer?

*** DANIEL MUNDEY XXN MS MASTERS

PN72

MR FLANAGAN: That's right.

PN73

THE DEPUTY PRESIDENT: That's beginning on page 57 of the court book, with the actual witness statement and annexures EO1 and EO2 attached to that. But we'll mark the witness statement and those two annexures to it as document A2.

EXHIBIT #A2 WITNESS STATEMENT OF EDEN O'DWYER WITH ANNEXURES (COMMENCING AT PAGE 57 OF COURT BOOK)

PN74

Then we get to Mr Mundey, beginning on page 73 of the court book, together with the five annexures, DM1, DM2, DM2B, DM3 and DM4. Again, Mr Flanagan, just to confirm, before we mark that, that's to go in?

PN75

MR FLANAGAN: That's correct.

PN76

THE DEPUTY PRESIDENT: Yes. A3.

EXHIBIT #A3 WITNESS STATEMENT OF DANNY MUNDEY WITH FIVE ANNEXURES (COMMENCING AT PAGE 73 OF COURT BOOK)

PN77

Ms Masters, I am going a little bit quickly, not to override any chance of an objection but I understand there's no objections to this process, as the parties discussed.

PN78

MS MASTERS: No, that's fine, Deputy President, thank you.

PN79

THE DEPUTY PRESIDENT: So the next one on my list was Mr McGee, is that correct, Mr Flanagan?

PN80

MR FLANAGAN: Yes, on page 91.

PN81

THE DEPUTY PRESIDENT: Yes. There's no attachments to that, so it's just the witness statement, we'll mark that A4.

EXHIBIT #A4 WITNESS STATEMENT OF MR MCGEE (COMMENCING ON PAGE 91 OF COURT BOOK)

PN82

Then it's the last one, Mr Flanagan, which was Mr Lockley(?), that's just the witness statement, beginning on page 98 of the court book, with no attachments or annexures to it, and that will be A4.

EXHIBIT #A5 WITNESS STATEMENT OF MR LOCKLEY (COMMENCING AT PAGE 98 OF COURT BOOK)

PN83

Now, from here, I think we're - - -

PN84

MR FLANAGAN: There is just one other, Deputy President. It's page 103.

PN85

THE DEPUTY PRESIDENT: I'm sorry, I didn't see that.

PN86

MR FLANAGAN: It's just a conciliation aide.

PN87

THE DEPUTY PRESIDENT: You want that in as part of your material? Yes, okay, I understand, that's okay.

PN88

MR FLANAGAN: Yes.

PN89

THE DEPUTY PRESIDENT: There's no objection to that document going in, so it's the document titled 'Tassel Operations Pty Ltd: conciliation aide AWU application for scope order' beginning at page 103 of the court book, and we will mark that A6.

EXHIBIT #A6 TASSEL OPERATIONS PTY LTD: CONCILIATION AIDE AWU APPLICATION FOR SCOPE ORDER (COMMENCING AT PAGE 103 OF THE COURT BOOK)

PN90

Okay.

PN91

MR FLANAGAN: That concludes our material.

PN92

THE DEPUTY PRESIDENT: It does conclude your material, thank you.

PN93

I think that takes us, Ms Masters, to you and Mr Flanagan you'll get an opportunity with Mr Stephens.

PN94

MS MASTERS: Thank you, Deputy President. The respondent seeks to rely on, and I wish to tender, the witness statement of Luke Cordwell, which appears at item 12 of the court book commencing at page 114.

PN95

THE DEPUTY PRESIDENT: Yes, and that has two annexures to it, LC1 and LC2 so, unless there's any objection, we will tender the witness statement of Luke Cordwell and the two annexures to it, as document R1.

EXHIBIT #R1 WITNESS STATEMENT OF LUKE CORDWELL WITH TWO ATTACHMENTS (COMMENCING AT PAGE 114 OF COURT BOOK)

PN96

MS MASTERS: I understand my friend doesn't wish to cross‑examine Mr Cordwell at all.

PN97

We also seek to rely on the witness statement of Rodney Burles, dated 26 April 2022, which commences at page 123 of the court book and has seven attachments.

PN98

THE DEPUTY PRESIDENT: Is Mr Burles required for cross‑examination, Mr Flanagan?

PN99

MR FLANAGAN: No, he's not.

PN100

THE DEPUTY PRESIDENT: Okay. All right. Sorry, Ms Masters, thank you, yes. In which case we will tender the witness statement of Rodney Burles, beginning at page 123 of the court book, and attachments RB1 through to RB7.

PN101

MS MASTERS: I also seek to tender Mr Burles' supplementary statement.

PN102

THE DEPUTY PRESIDENT: We'll mark them R2 and R3, respectively.

EXHIBIT #R2 WITNESS STATEMENT OF RODNEY BURLES AND ATTACHMENTS, DATED 26/04/2022 (COMMENCING AT COURT BOOK 123)

PN103

MS MASTERS: Thank you. The supplementary statement was filed after the court book was prepared and doesn't form part of the court book, but it contains three pages and a further four attachments, R8 to R11.

PN104

THE DEPUTY PRESIDENT: Thank you, and that's document R3.

EXHIBIT #R3 SUPPLEMENTARY WITNESS STATEMENT OF RODNEY BURLES AND ATTACHMENTS

PN105

MS MASTERS: I understand Mr Stephens is required for cross‑examination and I ask that he be called, as we intend to rely on evidence from him as well.

<TIM STEPHENS, AFFIRMED [2.27 PM]

EXAMINATION-IN-CHIEF BY MS MASTERS [2.27 PM]

PN106

MS MASTERS: I'll just ask, Mr Stephens, I don't believe there is a copy of the court book in the witness box, I'll just hand one up for Mr Stephens.

PN107

So, Mr Stephens, you are the senior manager of Central Operations, at Tassal?‑‑‑Yes.

PN108

You have in front of you a court book, can I just ask you, please, to turn to page 203 of that court book, it should be tabbed 14 as well, if that's helpful. Can I just ask you to identify that document for me, please?‑‑‑Yes, that is my witness statement.

PN109

If I can just ask you, please, to turn to page 208 of the court book, is that your signature on that page, Mr Stephens?‑‑‑Yes, it is.

PN110

You affirm the contents of that statement are true and correct?‑‑‑Yes, I do.

PN111

Do you wish to make any additions, amendments or changes to what's included in your statement?‑‑‑Yes, I would. On page 210, it's the Fish Performance and Remote Operations organisational structure. So just an addition that's not included on here, under Luke Cordwell, there's also a feed analyst, Madeline Parsons(?) and two of the feed technicians, under Daniel Anabel(?) and Johnno Oliver(?) to report through to Luke as well, there's the (indistinct) feed technicians.

PN112

Thank you, Mr Stephens. Any other changes or additions you wish to make?‑‑‑No.

PN113

I seek to tender that, Deputy President.

PN114

THE DEPUTY PRESIDENT: All right, thank you, Ms Masters. I will mark the witness statement of Tim Stephens and the two attachments to it, as exhibit R4.

EXHIBIT #R4 WITNESS STATEMENT OF TIM STEPHENS AND ATTACHMENTS

PN115

MS MASTERS: I don't have any further questions for Mr Stephens, thank you.

*** TIM STEPHENS XN MS MASTERS

PN116

THE DEPUTY PRESIDENT: Mr Flanagan?

CROSS-EXAMINATION BY MR FLANAGAN [2.30 PM]

PN117

MR FLANAGAN: Thank you.

PN118

So, Mr Stephens, if I can just clarify, if we go back to the page which is headed Fish Performance and Remote Operations you just talked to, as I understand it, and correct me if I'm wrong, what you're saying is, in fact, that Luke Cordwell sits between Daniel Anabel and Johnno Oliver, below him, and that he then reports to yourself, is that - - -?‑‑‑No.

PN119

No?‑‑‑No.

PN120

So do you say that Daniel Anabel reports directly to you?‑‑‑Yes.

PN121

Johnno Oliver reports directly to you?‑‑‑Yes.

PN122

And they don't report to Luke Cordwell?‑‑‑No.

PN123

So what's the interaction between Mr Cordwell and the feed technicians?‑‑‑So the feed technicians, there's two that work at night time, night watch, but they're still feed technicians, under the agreement, under the structure, so sometimes they'll come in, in some hours, they'll finish off the feeding, but then they'll be doing night security, so still on those stations, monitoring the fish and the environment and the security of the farms. They report directly to Luke. So if there's an issue during the night, they will (indistinct).

PN124

So do the feed techs - so we saw a group of feed technicians today?‑‑‑Yes.

PN125

Do they report to a team leader?‑‑‑Yes, they do.

PN126

And that team leader is not on this flowchart?‑‑‑Sorry, there's another omission from me. So in the last two days, Johnno Oliver has moved off and Ricky Brown has moved in. I do apologise for that, that letter got signed yesterday.

PN127

I'm just trying to be clear about what the structure is. So if I can tell you what I understand and you can tell me if it's right?‑‑‑Yes.

*** TIM STEPHENS XXN MR FLANAGAN

PN128

My understanding is you've got two crews?‑‑‑Yes.

PN129

About 10 people on each crew. They have a leading hand that they report to, each of those crews?‑‑‑Yes, a team leader.

PN130

Yes, a team leader?‑‑‑Yes.

PN131

And that the team leader then reports to Mr Cordwell?‑‑‑No, they report to me.

PN132

They report directly to you?‑‑‑Yes.

PN133

So the people that report to Mr Cordwell are the infrastructure technicians on the farms?‑‑‑No.

PN134

No? Where does Mr Cordwell fit into this, Mr Stephens?‑‑‑So he reports to me.

PN135

Yes, and then who reports to him?‑‑‑Matthew Brown and (indistinct), the infrastructure technicians, so they all work across all farms. Then there's the two night feed technicians and Madeline Parsons(?), who's the feed analyst.

PN136

What do the feed infrastructure technicians actually do?‑‑‑So it's a bit different, each one of them. So one deals more in the cables, his skillsets are in fibre optic cables and Matt Brown is more to do with conducting feed trials and help us set up the infrastructure. So they work across the whole business.

PN137

So we say, today, in the inspection, some people running around the farm doing bits and pieces of stuff, my understanding is that they assist if there are infrastructure problems which impact on remote feeding?‑‑‑Yes.

PN138

Yes, that's right?‑‑‑Yes.

PN139

So they work with the infrastructure technicians, is that how it works?‑‑‑Not specifically. So what you would have seen today is the site based employees, so it's geographically distinct where they work at that particular farm most of the time, whereas Matthew and Leif(?) will work across all the farms.

PN140

Okay. So they report to Mr Cordwell?‑‑‑Yes.

*** TIM STEPHENS XXN MR FLANAGAN

PN141

Then he reports to you?‑‑‑Yes.

PN142

Then, in terms of the feed centre, the feed technicians at the centre report to a team leader?‑‑‑Yes.

PN143

And the team leader reports to you?‑‑‑Yes.

PN144

Okay, thank you?‑‑‑Yes, and it might be confusing because Luke does play a big part in managing the feed centre as well, so I can understand how that might be confusing.

PN145

What role does Mr Cordwell play in managing the feed centre?‑‑‑Largely around fish ponds. Luke and I have worked very closely with that, but the feed team leaders report to him in that function.

PN146

Okay, thank you. So if I can take you to the next page in your statement, you've got another flowchart?‑‑‑Yes.

PN147

You've got Fish Performance Manager - Day, which is Lou Austin(?), Fish Performance Manager - Day, Stewart Campbell(?). Fish Performance Manager - Night, Chris Strewth(?). Fish Performance Manager - Night, Tom Wall(?) and Peter Dyson, is it, Fish Performance Manager - Central Operations. What's the role of each of these people?‑‑‑So the Central Operations refers to the Aquaspa bathing operations. So we've got a large (indistinct) charter that moves around all the sites and to facilitate the operation of that we have a centralised team of people that also move around all those sites (indistinct). Each one of those managers oversees a section of that team.

PN148

Okay. So in terms of reporting lines, all of the activities related with the Aquaspa, ultimately, through the Fish Performance Managers we just spoke about, report to yourself?‑‑‑Yes.

PN149

That's a separate and distinct reporting line to the remote operations?‑‑‑Yes.

PN150

No further questions, Deputy President.

PN151

THE DEPUTY PRESIDENT: I perhaps have one, which might cause you to ask some more, Mr Flanagan. Can someone perhaps, and it might be the witness or someone else, explain what's Aquaspa, for my benefit.

*** TIM STEPHENS XXN MR FLANAGAN

PN152

MR FLANAGAN: Mr Stephens will be the man, I think.

PN153

THE WITNESS: Yes, so the Aquaspa, it's an 84 metre vessel that we've got on charter, from Norway. Part of farming salmon in Tasmania is you need to treat them for amoebic gill disease and we do that by putting the fish into fresh water for two hours. So that boat is to facilitate that activity, where we suck them out of the pen and they swim around in the boat for two hours and we put them back in the pen.

PN154

THE DEPUTY PRESIDENT: I think that was explained, in part, to me, at the inspection today, so that's - I see nods from Mr Flanagan and Mr Burles that that confirms that that's what it is. Okay, I understand, to thank you. thank you, Mr Stephens.

PN155

MR FLANAGAN: We may be able to provide you some hard copy information on the Aquaspa, I'll talk to Ms Masters about that.

PN156

THE DEPUTY PRESIDENT: Ms Masters, anything arising?

PN157

MS MASTERS: I don't have any further questions, thank you, Deputy President.

PN158

THE DEPUTY PRESIDENT: All right, thank you, Mr Stephens, you can be excused.

<THE WITNESS WITHDREW [2.38 PM]

PN159

THE DEPUTY PRESIDENT: I think, subject then to perhaps the delivery of a map or a chart of some sort, that would be, on my reckoning, the evidence. Is that - that's certainly the parties understanding?

PN160

MR FLANAGAN: That's correct, Deputy President.

PN161

THE DEPUTY PRESIDENT: In which case, if I understood matters correctly, from earlier this morning at the inspection, it was indicated the parties wished to address me on submissions now, and that's still the case?

PN162

In that case, Mr Flanagan?

*** TIM STEPHENS XXN MR FLANAGAN

PN163

MR FLANAGAN: Look, Deputy President, we simply rely upon the material that we lodged in these proceedings but, in terms of the evidence that you've had this afternoon, what we say is that the evidence of Mr Stephens supports a finding that the feed centre, remote feed centre operations that the company conduct, are an organisationally discrete unit from other aspects of the company's operations. That evidence supports the authorities that we've referred to, in the outline of submission, about organisational distinctness.

PN164

We say that the evidence, in terms of what you saw with the inspection, also supports a conclusion that the feed centre is geographically discrete or distinct, and operationally discrete.

PN165

We've also had some evidence, late in the day, after our submissions were filed, and no criticism of that, where Mr Burles outlined the recent conduct of a vote, from the enterprise agreement, and we have the evidence of Mr Mundey, in relation to that.

PN166

What is clear from that evidence is the company had formed a view, Mr Mundey had gone out to talk to our members about their response to the company's proposal. And without getting the feedback from the union about what that workforce was saying, the company chose to put the enterprise agreement out to a vote.

PN167

What we had was a vote where 65 per cent of the workforce voted no. 92.7 per cent, I think it was, participated in that vote. Now, I'm not a mathematician, but that means, in or about 210 people voted in that process and a significant number of that, two-thirds of the 210, so about 140, voted no, and about 70 voted yes, roughly these figures are.

PN168

Now, two things arise from that. The first is that the feed centre is a group of 20 employees and they are subject to the tyranny of the overwhelming vote of the people that are not in their workplace. We say that goes to fairness, as we've detailed in our written submission.

PN169

The second issue that arises from that is it becomes clear that it is more inefficient to attempt to negotiate for both groups, going forward, one enterprise agreement, because what we have, and it's borne out in the evidence of Mr Burles, is we have a situation where the majority of people voted on issues that had nothing to do with the feed centre.

PN170

They voted, and it's dealt with in the statement of Mr Burles. He's attached the flyer as RB11. They voted on a dive allowance where there was a proposed cap, that's nothing to do with the feed centre. They voted on a fuel reimbursement, which was too low, and they voted on overnight allowances. Now they are issues which, as Mr Burles correctly says, has nothing to do with the feed centre.

PN171

Now, we say that that demonstrates the sort of circumstance which enlivens the Commission to go forward and determine that in its current state of play, bargaining is inefficient, insofar as the on-farm workforce are impacting on the ability of the feed centre, to negotiate their own agreement and you can therefore find that it's currently inefficient and a scope order would support efficient bargaining.

PN172

So with those supplementary submissions, we simply rely on what we've put, in the outline of submissions and we conclude our matter on that.

PN173

THE DEPUTY PRESIDENT: Just in relation to the vote, I'm trying to work out how much I can make of the vote. So in Ms Masters' submissions, or the respondent's submissions, she states, at paragraph 9:

PN174

The current EA covers farm attendants and it's divided up into works crew, divers and feeders.

PN175

Now, I mean I don't know, from the vote, whether there was perhaps - if those classifications are continuing and still probably relevant, I can't really tell, from the vote, can I, whether one of those was perhaps more influential than the others.

PN176

MR FLANAGAN: I think the evidence before you shows that all of the marine activities were conducted on farm, up until about 2018. In 2018 there was a restructuring that took place that led to feeders relocating from on farm, if I can call it that, to the feed centre.

PN177

Within the enterprise agreement, historically, all of the on farm occupations were identified. What has emerged through this bargaining process, is that there was skills in the feed centre that were not recognised in the current structure. As a part of this, the company has said, 'We're prepared to deal with that', but there are other issues that the feed centre have sought to address, which have been ignored by the company in this process.

PN178

So in terms of actual numbers, I don't know that there's any evidence before you, other than the fact that there are 247 people engaged in the work groupings, if you like, covered by the enterprise agreement and of that 247, 20 of them are the feed centre technicians. That's the only evidence I think you have before you.

PN179

THE DEPUTY PRESIDENT: Thank you, Mr Flanagan.

PN180

Ms Masters?

PN181

MS MASTERS: Thank you, Deputy President.

PN182

Respectfully, the AWU has not established that the Commission has the power to exercise its overarching discretion to make a scope order in this matter. Particularly, it hasn't demonstrated or satisfied the Commission that the group is fairly chosen, that bargaining would proceed more efficiently if the scope order was granted, nor have they shown that there's manifest unfairness, compared to the broader group of employees covered by the proposed EA, such that there would be a basis to find that they are effected by significantly substandard terms in the EA. The facts simply don't support it.

PN183

Putting it at its highest, the AWU's application represents a desire of the feed technicians to be the maters of their own destiny. That's in circumstances where there's significant commonality of interests between the group of employees currently proposed under the current scope. The issues raised, which are specific to the feed centre, are capable of being dealt with under the current scope. They certainly haven't been ignored. There's a difference between bargaining on a particular issue and not getting what you want, and being ignored on a particular issue.

PN184

In the same way that other subgroups may have a specific claim that they might not get, through the bargaining process, the feed centre employees may be subject to the same disappointment, through the bargaining process.

PN185

So there's just no unfairness in the sense that it's required to establish unfairness for a scope order to be granted.

PN186

That's in the context of collective bargaining. It's for the employer and the group of employees represented to bargain on their own issues and, as is the usual case, there are many subgroups of employees under this agreement who have their own particular interest that they wanted to advocate through the bargaining process. It's through that process that the employer and the employees, collectively, hope to reach an agreement. There's nothing more than that to this particular case.

PN187

With respect to the specific issues for the feed technicians, they claim, or one of their claims is for a 15 per cent pay rise, which is highly unusual to be granted through a bargaining process, and it's based on the subjective views of the feed centre technicians that their roles have become more complex and more difficult, as a result of the transition to the centralised feed centre. We say this simply isn't supported by the evidence.

PN188

They also seek a parking allowance. Again, that's an item for bargaining that has been considered by Tassal, during the bargaining process. It's asked for, in the context of these employees are now - these employees are based in the city and they say that's a peculiar interest for them, as opposed to the other employees covered by the agreement, based at the different farm sites, who don't have to pay for parking, effectively.

PN189

But just as - sorry, the evidence is that employees who were previously based on a farm and were transferred to the feed centre are, in fact, paid a parking allowance. New employees who apply for the positions, knowing they're a town-based or city-based job, are not paid an allowance. There's a bit of a grandfathering arrangement there.

PN190

But in the same way that feed centre - - -

PN191

THE DEPUTY PRESIDENT: Is that in the evidence? Or is that essentially - - -

PN192

MS MASTERS: Yes, that's - - -

PN193

THE DEPUTY PRESIDENT: Okay, that's a (indistinct).

PN194

MS MASTERS: Yes, that's in Mr Burles' statement.

PN195

In the same way that these employees have a - the feed technicians, sorry, have a particular interest in parking, for example, employees out on the farm sites may have a particular interest in, as we've seen, a travel allowance, or a lack of public transport available to them. It's simply the nature of collective bargaining where different subgroups of employees will have different interests. There's nothing unusual or different about that. It certainly doesn't demonstrate manifest unfairness.

PN196

In respect of the recent no vote outcome, it's demonstrated and in Mr Burles' supplementary statement we've provided a copy of the communication that the AWU sent to its employees, sorry, it's members, which Mr Mundey's evidence is, it was circulated after consultation with them. It advocates, at RB11 to Mr Burles' supplementary statement, it advocates a no vote for the vote that the company was undertaking.

PN197

It raises a number of issues. It says the wage increase is too low. There's nothing specific or peculiar about that to any of the individual subgroups of employees. I dare say all of them would prefer to have a higher pay rise, if it was on offer.

PN198

The dive allowance, they say the proposed cap is unnecessary. Obviously that effects divers. Fuel reimbursement of 45 cents per kilometre is too low. That obviously effects employees who are required to travel and are paid a travel allowance. Overnight allowance is short of what you asked for. Again, that effects employees who are required to stay overnight, away from their base site. A four year agreement is a year too long. I suspect that effects all of the people proposed to be covered by the agreement.

PN199

But each of those matters are things that are live issues for bargaining. It doesn't demonstrate that there's a particular impasse in bargaining. It doesn't demonstrate things that can't be negotiated on for bargaining and it doesn't demonstrate things that are peculiar to the feed technicians or particularly unfair for them, in terms of voting on things or bargaining for things that aren't relevant to them.

PN200

The particular claims of the feed technicians are set out in Mr Burles' statement, which I will just take you to. It commences at page 123 of the court book. My friend indicated that there's unfairness to the feed technicians because their issues are being ignored in bargaining, in favour of other groups of employees who are able to out vote them. But when you look at the particular claims, it's clear that their claims are not being ignored, they're just simply not being agreed to.

PN201

So the particular claims for the feed technicians, and it's on paragraph 15, it's set out in a table on page 135 of the court book, in Mr Burles' statement, their claim is for, firstly, a separate feed agreement, obviously why we're here today. The company's explained its position on why that's not required. The 15 per cent allowance to reflect a pay increase, on the basis that their duties and responsibilities have changed.

PN202

Now, you've got before you quite a bit of evidence around what that change actually is. It's rejected by the company that the change that has occurred justifies a significant pay increase for the feed technicians.

PN203

You also, yourself, Deputy President, had a site visit this morning, at the feed centre, and what I say that emphasises is the highly sophisticated nature of the software and technology that Tassal has implemented, that enables the feed centre to operate the way that it does.

PN204

Yes, the feed centre technicians have had a change. But, ultimately, they still do the same job, they feed the fish, the monitor the fish performance. They are extremely dependent on that highly sophisticated software to provide them with recommendations on how to perform the feeding, to create efficiencies in how the feeding occurs, and to alert them if there's a problem.

PN205

So you saw, yourself, just how sophisticated that technology is. The evidence - sorry, I don't believe it's in the witness statements, but it was clear that that particular - those feed stations that you saw this morning, they could be set up anywhere. There's no reason why that feed station couldn't be set up on a barge, out in one of the fish farms. The company's chosen not to do that and to centralise it, because there's other benefits, of course. But there's absolutely no - the company says that there's no basis to find that the duties and responsibilities of the feed technicians has changed so much that they justify a 15 per cent pay rise.

PN206

That position won't change, whether they're under the scope of this agreement, or this proposed agreement, or whether they have their own agreement. By creating, arguably, a scope order, giving them their own agreement could, itself, create an impasse where one didn't previously exist in bargaining for the current agreement, on those particular issues.

PN207

There's obviously, under the provisions of the Fair Work Act, there's a number of factors that must be met before the Commission's power to exercise a discretion to grant a scope order can be enlivened. They're obviously not in dispute, but it's under section 283(4) of the Fair Work Act, and, effectively, requires the applicant to demonstrate they've met good faith bargaining, there's no dispute about that here. To demonstrate that it would promote fair and efficient bargaining, for the scope order to be granted. That the group of employees is fairly chosen and, in this case, given that it's not going to cover all employees, that requires a consideration of whether their geographically, organisationally or operationally distinct. And, finally, whether it would be reasonable, in all the circumstances, to grant the scope order.

PN208

The respondent's filed an outline of submissions, which is dated 26 April 2022, and we rely on that outline but then there are a few things that I would like to take you through, in a bit more detail.

PN209

With respect to whether or not the proposed scope order would promote fair and efficient bargaining, my friend contends, in their submissions, that bargaining is at an impasse. The respondent's submission is that that's just simply not the case. It's clear that bargaining is progressing in this matter. We've had a very recent vote, that was a no vote, and it's back to the drawing table in that respect. There's no evidence to suggest that the parties are genuinely at an impasse.

PN210

As I've indicated, all of the things that are or were highlighted by the AWU, in advocating or promoting a no vote are generalised bargaining. In that sense, the parties will go back to the table. It's open to the company, as it is for the different group of employees, through their bargaining representatives, to continue to bargain on things that effect them, as they no doubt will. Some of those, of course, are common issues.

PN211

My friend, in their submissions, indicates that the current scope reduces the conditions of a minority group. There's no evidence of that. In fact, there's no evidence to suggest, at all, that the feed centre are affected by substandard conditions in the EA, for which they're being outvoted. Rather, their interests lie in getting something more. Putting themselves outside of the current agreement so they can get something they want, not something they're being treated unfairly because of. We say that that doesn't demonstrate any unfairness at all.

PN212

My friend also relies on, in their submissions, a number of authorities where scope orders were granted, in terms of the efficiency of bargaining. In the respondent's submission a lot of those authorities deal with situations where you actually have groups of employees with conflicting interests. So where they're bargaining on the same issue but their interests are in conflict with each other. That, understandably, can effect efficient bargaining, but it's just not the case here.

PN213

Again, what we're dealing with here is a number of subgroups of employees who have their own individual interests, but they don't conflict with each other.

PN214

Rather, the respondent says that bargaining will proceed more efficiently under the current scope, without a scope order, without a separate agreement for the feed technicians.

PN215

That's particularly where, as I've indicated, there is significant commonality between the interests of all of the subgroups, despite having their own individual interests as well.

PN216

Bargaining separately will create doubling up in bargaining on those same issues and will, itself, necessarily create inefficiencies we say, in circumstances where their issues are being considered and responded to and those responses wouldn't be any different if they had an agreement of their own.

PN217

With respect to whether the group of employees is fairly chosen, that, in this case, requires a consideration of whether they're geographically, operationally, organisationally distinct.

PN218

The AWU relies on the fact that the feed technicians work in a built environment to satisfy the Commission that they are geographically distinct. In our submission that's not a factor to be taken into account. For example, as I've indicated and as you would have seen, from the site visit this morning, the feed centre could, theoretically, be located on one of the farms, in a built environment as well.

PN219

The respondent has marine operations at a number of different sites and the parties, I understand you haven't been provided with a map yet but the parties will provide with a map, but as we've indicated, in our submissions, those marine operations span from south of Hobart to east of Hobart, particularly. The feed centre actually basically sits in the middle. So in terms of whether they are geographically distinct, because of their physical location, we say they're not, given the proposed EA already covers a number of different sites, which spans across a vast area of Tasmania, although Tasmania is quite small, and, in that sense, there's no geographical distinctness, because the built environment of itself, doesn't establish a geographical distinction.

PN220

THE DEPUTY PRESIDENT: Do you say the separate coverage of the Macquarie operations is anything that I can or should or shouldn't take from that, in relation to the geographic aspects?

PN221

MS MASTERS: My understanding, I might just confirm my instructions on that point. The answer to that is, effectively, no. It's come about as a result of different circumstances where I understand, not wanting to give evidence from the Bar table, but I doubt it will be contentious, and Mr Flanagan can interrupt me if it is.

PN222

My understanding is that there previously used to be very little union membership at the Macquarie Point site, and over time they acquired members and sought to bargain for an enterprise agreement and it was to protect the company to have separate agreements at the time, for their industrial interests.

PN223

THE DEPUTY PRESIDENT: Perhaps at the risk of provoking responses by Mr Flanagan about different nuances of history, I don't think I have evidence really, from either party, on that particular point.

PN224

MS MASTERS: No, you don't.

PN225

THE DEPUTY PRESIDENT: But, Mr Flanagan, I won't stop you from giving you nuance, from the Bar table, given that Ms Masters just did, if you want to say something on that.

PN226

MR FLANAGAN: Look, I think - I don't necessarily agree with that version of history, but the Macquarie Harbour Enterprise Agreement did have provisions in it, which are still partially referred to in grandfathering provisions, from recollection, which dealt with travel arrangements in the past and have been moved out.

PN227

So what I'm saying is, the Macquarie Harbour agreement reflected different circumstances at that farm, compared to the rest of the south eastern farms. But what is relevant, is that there is a separate agreement for that farm.

PN228

THE DEPUTY PRESIDENT: Ms Masters, I might ask you to continue.

PN229

MS MASTERS: So what we would say is there's nothing to be made of that, in terms of considering this application for a scope order.

PN230

What we say is absolutely clear, in this particular case, is that the feed technicians are not, either operationally or organisationally, distinct from the marine operations. In fact, we say that there can be no question that they are operationally very much a part of the marine operations.

PN231

The degree of interconnectivity between the feed technicians and the farm attendants on the farm sites is high. The evidence establishes, and you witnessed, to some extent this morning, that the feed technicians, in some respects, are eyes under the water for the farm attendants and they rely heavily on the farm attendants, on the farm sites, to address any issues that they may find or see through the camera footage that they can view, from the feed centre.

PN232

There was some examples explained in terms of the feed technicians can see, can view, the bottom of the pens and can see where there's been mortalities, fish mortalities, and they an suggest to divers, or ask divers to go and move the dead fish or to go and see if there's an issue.

PN233

You also heard that the - - -

PN234

THE DEPUTY PRESIDENT: Actually, I might just pause you there, and fairness to you because you weren't at the inspection on the boats, that was a matter that came up when we were doing the tour of one of the farms as well. I think it was discussed that the feed technicians might priorities, for example, if there was a particular pen with only two mortality fish in it, then that might be put down to priority later, relatively speaking, to one that might have 15 or 20 in it.

PN235

MS MASTERS: Yes. In our submission that absolutely demonstrates the interconnectivity between what the feed centre employees are doing and what's happening out on the farm, in terms of the marine operations.

PN236

You were also given examples where they conduct, effectively, pressure checks on the infrastructure and communicate if there's potential marine debris, for farm attendants to resolve that on site. As well as they have toolbox meetings, in the mornings, where they consider the plans for particular farms or pens that they're responsible for feeding that day, so that they can take into account the actual plans that are going on, on farm, in terms of when they feed their pens. So they're responsible for - - -

PN237

THE DEPUTY PRESIDENT: I think, and I haven't gone back and cross‑checked the evidence, but certainly the toolbox meetings were raised, at the inspection of the feed technician centre with me this morning, in a way I think that you just described. I'm not sure whether it's specifically reflected in the evidence, but what you described to me was what I understood anyway, but perhaps Mr Flanagan, if there was - - -

PN238

MR FLANAGAN: No, I think that's a fair description, Deputy President.

PN239

MS MASTERS: It is reflected, I believe, in Mr Cordwell's and perhaps Mr Stephen's evidence as well, that they plan the feeding around (indistinct) and that sort of thing, which is dictated by the farm.

PN240

So we say, in answering whether the feed centre employees are operationally distinct, you can be satisfied that they're absolutely not. In fact, they're very integrated into the marine operations, which encompasses - the marine operations encompasses the farming of the fish, effectively, and they are a key part of that process. They are a key part of that business activity of Tassal, which occurs under the marine operations and which is covered, effectively, by this proposed enterprise agreement, under the current scope, not under the AWU's proposed scope.

PN241

With respect to whether or not they're organisationally distinct, once again we say they're absolutely not. What you have in front of you, with Mr Stephens' evidence, and I'll tell you the particular page. So page 209 of the court book. Mr Stephens was asked a number of questions about reporting lines, with respect to fish performance and remote operations and central operations, which he heads up, under his role as senior manager of central operations.

PN242

He wasn't asked any questions about the flowchart that appears at page 209, which is headed Farming Operations Leadership Team. But what you can see from that flowchart is that for farming operations it's headed up by Mark Asman(?), who's title is head of aquaculture, and reporting into Mr Asman are a number of people, including Mr Stephens. Now, the other people are - their job titles includes Mr Wingfield, for example, who is the senior manager of the northern zone, Geoff Dobson(?), who is the senior manager of the southern zone, they particularly, in terms of the organisational structure of the marine operations, they manage the farms, so they report in to the same person as Mr Stephens reports in to.

PN243

So, organisationally, being the head of aquaculture, organisationally, and you've got evidence that Mr Stephens effectively heads up the feed centre as well as the aqua bathing, organisationally they all fall under the same banner for the farming operations as the people who manage the actual farm sites themselves. And it's organised in a way that demonstrates that the feed centre technicians are not organisationally distinct from the farm sites themselves.

PN244

My friend, in their submissions, in dealing with the point of whether the feed centre technicians are organisationally distinct, at paragraph 23 of their submissions they list a number of factors that they contend demonstrate or inform whether or not a particular group is organisationally distinct.

PN245

The authority that they rely upon to take those three factors actually sets out a fourth factor, which is not repeated in the AWU's submissions. That authority is, it's cited at footnote 12 of the AWU's submissions, as Aerocare Flight Support v TWU and ASU [2017], it's a Full Bench decision and they refer to paragraph 27.

PN246

The AWU says that what you take into account, in determining whether a group of employees is organisationally distinct. So:

PN247

The term 'organisation' refers to the manner in which the employer has organised its enterprise in order to conduct its operations.

PN248

We say, as I've just explained, that particular flowchart, in Mr Stephens' evidence demonstrates that the operations are organised in a way where these employees form part of those farming operations and report - all reporting to that head of aquaculture.

PN249

They then say, as the next factor:

PN250

Performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct.

PN251

The AWU doesn't explain why or how the duties of the feed technicians are qualitatively different. They perform a particular task, i.e. feeding the fish, but that doesn't necessarily create organisational distinctness from them, in circumstances where the proposed EA covers the whole of the marine operations, where all of the employees are engaged to work on the same business outcome for Tassal, that is, to grow and farm the fish.

PN252

Their final point that they say, from the particular authority is:

PN253

Most businesses have organisation structures which will allow organisationally distinct groups to be identified.

PN254

I don't have any issue with that.

PN255

The point that they don't repeat, from the particular authority, is at paragraph 27 of the Aerocare authority, which is referred to in the AWU's submissions, at footnote 12, the other factor it says is:

PN256

However, the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct, where the employees work in an integrated way, with the other employees, to perform a particular business function.

PN257

We say that that's absolutely what happens here. The feed technicians work in a very integrated way with the farm attendants on site, to perform the particular business function of farming the fish.

PN258

So we say they're not organisationally distinct at all, and there's no evidence to suggest that they are. In fact, quite the contrary, they're very much integrated into the marine operations director farming the fish.

PN259

I did previously indicate, Deputy President, that there are - in many cases, in bargaining, there are subgroups of employees who have their own particular interests and I did want to, in particular, take you to a point in the authorities, just briefly.

PN260

The decision is referred to in the respondent's submissions, it's at paragraph 29(e) of the respondent's submissions, and it refers to the authority which is footnote 13. It's title is Detective Superintendent Bill Patterson and Federal Federation of Australia (Victorian Policy)(?) v Mr Richard Bowers (?), [2011] FWC.

PN261

The passage that I will take you to is paragraph 47. It goes to the question of fairness, which is the main basis on which I understand the AWU to say these feed technicians require their own agreement. But in this particular case, at paragraph 47, Fair Work Australia indicated that, in this case:

PN262

As to the question of fairness, I'm not satisfied it would be fairer if there was a separate bargaining unit for superintendents, even though they would be joined with commanders. The main reason for this proposition by the superintendents is that they would be put into a minority and outvoted, thus leaving them powerless to achieve any real objectives.

PN263

To begin, it is not unusual for particular self‑interest to be the subject of consideration in a bargaining unit and bargainers often have to reach an accommodation between those self‑interested groups.

PN264

That's the particular point I'd like to emphasise, where it's usual for a group of people, in bargaining, to have their own particular interests and the goal of collective bargaining is to reach an accommodation between those self‑interested groups.

PN265

The situation for the feed technicians is nothing more than that here. They're a self‑interested group who are able to participate in collective bargaining with the common goal to reach an agreement between everybody.

PN266

So we say, on the critical points of whether the feed technicians are a fairly chosen group of employees for a scope order, we say they're not, because they're not sufficiently geographically, operationally or organisationally distinct. Quite to the contrary, they're not distinct at all and they're very integrated into the overall marine operations conducted by the respondent.

PN267

With respect to whether the proposed scope order would be fairer, more efficient bargaining, we say to the contrary. It certainly would not promote efficient bargaining. It has the potential to create an impasse where one does not currently exist. The feed technicians are in a position where their claims are being heard and responded to. Whilst they may not be successful in advocating or achieving particular claims, that's not because they're not being considered or they're being unfairly put to one side, or out voted, it's simply because the answer to the things they're asking for is, 'No'. They're not being treated unfairly, in that sense. They're being treated in a reasonable manner, such that the things they're claiming for are subjective - well, subjective interests for them and they're unlikely to achieve or unlikely - almost certainly wouldn't achieve those things if they were to be bargaining for a separate agreement.

PN268

So we say the application for scope order fails on those two grounds and the Commission doesn't have the power to exercise a discretion to grant the scope order. There is, of course, a final consideration as to whether it would be reasonable, in all the circumstances, to grant the order.

PN269

As we've indicated in our written submissions, written outline of submissions, this really a case of the feed technicians wanting to be the masters of their own destiny. They are bargaining for things that they want, not on the basis that they're currently being treated really unfairly or aren't able to achieve reasonable conditions for themselves, but on the basis that they think something's changed that they - they subjectively think something's changed that justifies them to get, in particular, a significant pay rise, which is unusual and out of the ordinary.

PN270

It's not supported by the evidence and there really is no other factor that would cause - we say would cause you to consider it would be reasonable, in the circumstances, to grant the scope order, even if you could be satisfied that they were fairly chosen and it would promote fair and efficient bargaining.

PN271

So we say, even if you're satisfied of those things, there's really no other basis upon which it would be reasonable to grant that scope order.

PN272

That concludes the respondent's submissions, Deputy President, unless you have any particular questions for me?

PN273

THE DEPUTY PRESIDENT: I don't. I've got perhaps one overlooked question I meant to ask of Mr Flanagan, which might give you a second bite there - and you'll get a short opportunity to reply anyway.

PN274

My question, I just wanted to clarify, in paragraph 46, 47 of the applicant's submissions, there's - it addresses the current coverage clause of the enterprise agreement, that's the current enterprise agreement, and it's stated, at 47, that:

PN275

The work activities undertaken at Tassal is not work activities undertaken on Tassal's marine farms.

PN276

I just want to clarify, in my own mind, the significance of that. Is there some technical issue I need to alert for where you're saying they're outside of coverage presently, or is it more drawing attention to the geographic points that you've previously made, that they're located in a building in the Hobart CBD, as opposed to closer to the pens?

PN277

MR FLANAGAN: Yes. So the first thing I'll observe, paragraph 47 refers to level 4, it's actually level 8, so I'd like to amend that aspect of the submission. But in terms of your question, it's both. So what we say is that the feed centre is located in a geographically distinct place to the marine farms, so there's that aspect.

PN278

THE DEPUTY PRESIDENT: I understand that, and that's the scope order point, yes.

PN279

MR FLANAGAN: That's the scope order point. But we do raise the question of whether the Marine Operations Enterprise Agreement, in its current form, and with its current drafting, has any application to the feed centre. What we say is when the feed technicians were employed they were given a letter of offer which referred to the Marine Operations Agreement. Now, that's included in the material that's before you. What we say is, it applies by operation of that common law arrangement, but it doesn't have any application, by statutory force, because it talks all about work performed on marine farms.

PN280

Now, that expression has been there since the very first enterprise agreement which was done with Tassal. That expression never changed when the feed centre people were centralised into Hobart. But we say if you give those words their ordinary and natural meaning, then they are not working on a marine farm, they are working at a location other than a marine farm.

PN281

Now, it may be that the cameras that they are controlling, and other aspects of what they do, are on the farm, but they are not on the farm. The activities that they are undertaking are remote and are not on the farm. We do say that. So it's both those issues, Deputy President.

PN282

THE DEPUTY PRESIDENT: I just want to make sure there's no - - -

PN283

MR FLANAGAN: It all turns on the word 'on'.

PN284

THE DEPUTY PRESIDENT: No, I understand. I certainly understand the point that's been made, in relation to the section 338 criteria, and that point you made. Given that there's no agreement that's being voted up at the moment anyway, but, in essence, what you're saying is that even if the agreement was voted up, or there's perhaps a couple of things that flow from it. One, you're saying it wouldn't necessarily - - -

PN285

MR FLANAGAN: I can assist you - - -

PN286

THE DEPUTY PRESIDENT: - - - even cover - it would, purportedly, cover the feed technician centre employees on what you've just described.

PN287

MR FLANAGAN: So, Mr Burles has taken proactive steps to address this issue, by redrafting the scope clause in the proposed enterprise agreement, we haven't agreed to that redrafted scope.

PN288

I guess, for the purposes of this matter, as it stands now, we have to work within the terms of the existing enterprise agreement and we say even under the terms of the existing enterprise agreement it does not have application to the feed centre, by statutory force.

PN289

THE DEPUTY PRESIDENT: But for the scope order dispute, you're saying, regardless of what Mr Burles might do, with his drafting, to remove uncertainty, from your point of view, Mr Burles, and his team might say there is no uncertainty, but to take that issue off the table. You would say, regardless of whatever drafting might be done there, that doesn't effect the contentions for the scope order aspect, which is that you're saying to remove those by statutory operation, regardless of what drafting Mr Burles might do.

PN290

MR FLANAGAN: Yes, that's right.

PN291

THE DEPUTY PRESIDENT: Yes, I understand. Thank you. Sorry, that was my specific question, and I'm mindful you might have had other matters that you wish to reply to, but perhaps before I do that, is there anything arising from that, Ms Masters? I think I've clarified it in my mind.

PN292

MS MASTERS: Yes. So I understand the point that Mr Flanagan is trying to make in his submissions to be that if the current agreement doesn't, in fact, cover the feed technician employees, they can't be covered by it simply because the respondent said in their contract that they are. We accept that contention, that's not an issue.

PN293

We say it's a separate issue for the scope application, it goes to coverage, and as we've indicated in our written submissions, the AWU's position is somewhat novel, to suggest that they're not covered by the current agreement, having regard to the circumstances. The particular wording of the enterprise agreement talks about performing work on the farm, not performing work at the farm. I'll say there's a difference in terminology there. The work that they do is clearly on, they do work on the farms.

PN294

We've addressed that in our written submissions and I don't have any further response to what Mr Flanagan has just explained.

PN295

THE DEPUTY PRESIDENT: Yes. But it's certainly the case that the employer, at the very least, assigned - believes that they currently are covered. But regardless of whether that - whatever the result of that might be, they certainly wish to proceed with a new agreement for the feed technician centre employees, to be covered in the new agreement. At the very least reflecting the current belief that they're currently covered.

PN296

MS MASTERS: Currently within the scope, that's right, yes.

PN297

THE DEPUTY PRESIDENT: Thank you.

PN298

Mr Flanagan, that was my bespoke question, but I was intending to give you a brief right of reply, more generally, from what Ms Masters has said, if there's any matters that you - which you need to reply to.

PN299

MR FLANAGAN: Yes. I'm not going to rehash our submissions, but I do think, in reply, we need to give some context to what we're dealing with here.

PN300

Now, it's been put to you that there are a number of tests to be met. There's the fair and efficient bargaining test, there's the fairly chosen test and there's the reasonable in all the circumstances test. Now, all of those tests ultimately involve a degree of discretion and of judgment. All that you can take from the authorities that are before you are principles which have been determined previously, about how the judgment should be exercised. None of the authorities are on all fours with the circumstances that you're dealing with in this matter.

PN301

Now, the respondent says the AWU makes a great deal, and correct me if I get the expression wrong, but make a great deal out of the fact that we talk about a built environment versus the natural environment, and that's not a matter that you should take into account.

PN302

We say that is absolutely not the case. What we say is you have some principles there that guide you on what is fair and efficient bargaining. You have some principles on what is fairly chosen. In the case of fairly chosen, you're directed to take into account organisational, geographical and operational distinctness, but it's not determinative. You have to take it into account. But you then have a judgment that you make, in addition to that, to take into account what you think are relevant considerations. That then impacts on what is reasonable, in all of the circumstances.

PN303

So the exercise of the discretion, we say, in the circumstances of this matter, is significantly impacted by the difference between a built environment and the natural environment. That's why we press so hard for you to have the opportunity to see both workplaces.

PN304

What we know is there's five senses that we have, as humans, some say six. When all of those six or five senses were exposed to the feed centre this morning, and you expose those five senses to the farm, they were completely different experiences.

PN305

Now, they're people's workplaces and for the feed centre people, they're not exposed to the weather, like those who are in the natural environment are, what they're worried about is the parking in Hobart, which is not an issue at the farm, where we pull up and park for free and it's all good.

PN306

So the nature of the workplace is significantly impacted by the work environment and the difference between the built environment and the natural environment is a significant matter that you should be taking into account when you are exercising your discretion to determine whether or not the group is fairly chosen and whether or not it is fair - it's reasonable in all the circumstances.

PN307

You've been taken to a decision, by the respondent, which supports a proposition, 'Well, it's not unusual for a small group to be outvoted, and that small group to have particular interests'. Now, I want to also take you to one which we have provided to you, which is the Australian Salaried Medical Officers Federation, and if I can take you to paragraph 24.

PN308

So paragraph 24 says:

PN309

I consider that these 29 medical officers are a discrete group of professionals, amongst the just under 37,000 employees proposed to be covered by the Human Service Agency Agreement.

PN310

Now, there's a big difference in the numbers here, 39 versus 37,000, but it doesn't matter if it's 37,000 or 240 people, this is a group of 20 people who you observed today doing their work and it was done by reference to monitors, in the built environment, where you saw feed stations and Aqua, which ensure the efficient feeding of fish and low feed conversion rates. You saw monitoring programs of AMF Clad(?) and Aqua Current(?) and you saw remote start programs, DSE, Core and Web Supervisor.

PN311

Now, it was clear, from what you saw today, that those people were using a very different set of skills to the people that were out on the boat, on the farm, doing whatever they were doing today.

PN312

So, like the medical officers, the feed centre have a discrete and different skillset, and that is a relevant consideration, in the exercise of your discretion.

PN313

Further on in this paragraph, the Commissioner says:

PN314

The employees have had and still have high level conditions, comparable to those enjoyed by the SES. Their conditions have always been superior and aimed at attracting and retaining the services of medical professions.

PN315

Clearly, that is not the case in this matter, and we don't say that it is. But what is important is the Commission went on to say, in the next sentence:

PN316

I was satisfied that the ability of these particular employees to bargain fairly and efficiently, regarding the conditions, in the face of any community of interest with the vast number of employees on ordinary classifications who would have no interest in maintaining the conditions of the medical professionals was nil.

PN317

Then, further over:

PN318

I was satisfied that these people would be unable to bargain fairly and efficiently whilst they were obliged to be a part of a bargaining group, with which they had no common interest and who had no interest in assisting them to maintain their conditions.

PN319

So, from the outset, and we've dealt with it in detail, in the submissions that we've put in, we have said, if you compare the feed centre to the farms, what you see is that the environment in which they work is different. What you see is the skills that they use are different than what you see is the responsibility that they have is different.

PN320

Now, those differences - - -

PN321

THE DEPUTY PRESIDENT: Am I comparing them, though, to the divers or to the work crews, or both?

PN322

MR FLANAGAN: You don't have a lot of evidence, unfortunately, before you on the work that they do, but it is detailed in the enterprise agreement. But those on farm employees have a community of interest because working in the natural environment they are all exposed to the same experiences, but that is distinct from the feed centre, and it's the only group, in the marine operations, whether it's down here in the south or up in Macquarie Harbour. They're all out in the natural environment. They're all doing physically manual work, whereas the feed centre are different.

PN323

THE DEPUTY PRESIDENT: Taking on what the respondent's have said, and I'll just get your view on this, I'm paraphrasing a little bit crudely here, but what if the feed centre was moved on top of a barge?

PN324

MR FLANAGAN: Well, that would change the world. First, they would be on a farm, which they are not, that would be a game changer. But we have to deal with what we have in front of us, not what could or might be.

PN325

THE DEPUTY PRESIDENT: If it's not on the barge but moved to the beach?

PN326

MR FLANAGAN: Well, depends on whether it's on the lease or not, under the current wording.

PN327

THE DEPUTY PRESIDENT: It wouldn't be under the lease, I would imagine, if it's on a beach. I confess, there's no evidence there and I don't - I thought they were water leases.

PN328

MR FLANAGAN: I think you're right. I think attached to each water lease is a land base, and both the water lease and the land base are a part of the farm. I think that's where we're at.

PN329

If the feed centre was on the shore, or on the barge, there would be an argument that the Marine Operations Agreement, as it's currently worded, covers it. But that's only part of it. It doesn't mean that they are not organisationally or operationally discrete. Even if they were on the barge, or on the beach, they would still be using a different set of skills, they would be, certainly operationally, discrete, based on the evidence of Mr Stephens. We say they would be organisationally discrete, based on the principles that we've drawn to your attention, or referred to, by Ms Masters. The evidence of Mr Stephens was clear, there is a group of people who report to some team leaders who then report to him and they are a unit within a unit, so they are clearly and readily identifiable, and that is consistent with the established authorities around organisational discrete.

PN330

The nature of the skillset means that the work that they do is qualitatively different to the work which is being done out of the farm, by the divers and the works crew, so they would satisfy that requirement.

PN331

They probably wouldn't satisfy the requirement that they were geographically discrete. But right now, they're not on the beach and they're not on the barge, they're in a commercial office building in Hobart, and they are geographically discrete.

PN332

So we say that when you look at our submissions those matters that we've raised from the outset are very significant in exercising your judgment in relation to whether the bargaining is fair and efficient, in whether or not people are fairly chosen and whether or not is reasonable in all the circumstances, and we leave our case at that. Thank you, Deputy President.

PN333

THE DEPUTY PRESIDENT: I realise I did provoke a few matters with an extra question there, Ms Masters, is there anything you feel compelled to address? You've lots of time.

PN334

MS MASTERS: Very briefly, Deputy President.

PN335

THE DEPUTY PRESIDENT: With the only warning that whatever you say might prompt Mr Flanagan to stand up and say something.

PN336

MS MASTERS: I think what I have to say Mr Flanagan's said his piece on it, so it's probably just an issue of we don't agree on many things. However, Mr Flanagan, in response and in his written submissions, continues to make much of the fact that these employees work in a built environment, versus the employees who work on the farm, in a natural environment.

PN337

I just want to emphasise, the respondent's position around what does that actually mean for the scope order application. I'd say nothing.

PN338

The issues or the claims by the feed technicians, in bargaining, are almost all entirely unrelated to the fact that they work in a built environment, except for the claim for parking. So we say it just doesn't matter, in the context of the application for the scope order.

PN339

That was really the only point I wanted to emphasise, thank you, in response.

PN340

MR FLANAGAN: I have nothing further to put.

PN341

THE DEPUTY PRESIDENT: Thank you. I'll thank the parties for their assistance. I thank the parties for keeping and beating time estimates that had been given, that rarely occurs.

PN342

I will be reserving on this matter and I'll be issuing a decision. I will be seeking to issue a decision as promptly as I can. I'll perhaps get some guidance on that, in that I have some absolute unavailabilities, because I'll be away for the first half of June. So if I'm in a position to have got something to you by then, before I leave, and that might be a bit of an optimistic stretch for me, then you'll know if it arrives. If not, there's going to be a bit of a pause, it's going to be put on the back burner there. But I'm conscious that it's important, given that bargaining is still ongoing and the agreement or agreements, depending on parties views will need to be made. So I'm mindful that it be delivered as soon as possible to give parties certainty there.

PN343

Other than I think the residual matter, which I don't anticipate will be controversial, delivery of some map or picture or whatever we might call it, like I've said, I don't need a document to be created, it doesn't have to be a beautifully produced document, and I was shown a version of something anyway, on one of the boats out there earlier, and that seemed to be generally sufficient for my needs anyway, but if that could be sent through in Chambers, if he parties could just communicate with each other first, but otherwise I shall adjourn the matter.

ADJOURNED INDEFINITELY [3.51 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DANIEL MUNDEY, AFFIRMED......................................................................... PN23

EXAMINATION-IN-CHIEF BY MR FLANAGAN............................................ PN23

CROSS-EXAMINATION BY MS MASTERS..................................................... PN47

THE WITNESS WITHDREW............................................................................... PN62

EXHIBIT #A1 WITNESS STATEMENT OF CLARISSA MURPHY AND ATTACHMENTS (COMMENCING PAGE 43 OF COURT BOOK)............................................... PN70

EXHIBIT #A2 WITNESS STATEMENT OF EDEN O'DWYER WITH ANNEXURES (COMMENCING AT PAGE 57 OF COURT BOOK)........................................ PN73

EXHIBIT #A3 WITNESS STATEMENT OF DANNY MUNDEY WITH FIVE ANNEXURES (COMMENCING AT PAGE 73 OF COURT BOOK)........................................ PN76

EXHIBIT #A4 WITNESS STATEMENT OF MR MCGEE (COMMENCING ON PAGE 91 OF COURT BOOK)....................................................................................................... PN81

EXHIBIT #A5 WITNESS STATEMENT OF MR LOCKLEY (COMMENCING AT PAGE 98 OF COURT BOOK)................................................................................................ PN82

EXHIBIT #A6 TASSEL OPERATIONS PTY LTD: CONCILIATION AIDE AWU APPLICATION FOR SCOPE ORDER (COMMENCING AT PAGE 103 OF THE COURT BOOK)...................................................................................................................... PN89

EXHIBIT #R1 WITNESS STATEMENT OF LUKE CORDWELL WITH TWO ATTACHMENTS (COMMENCING AT PAGE 114 OF COURT BOOK)...... PN95

EXHIBIT #R2 WITNESS STATEMENT OF RODNEY BURLES AND ATTACHMENTS, DATED 26/04/2022 (COMMENCING AT COURT BOOK 123)..................... PN102

EXHIBIT #R3 SUPPLEMENTARY WITNESS STATEMENT OF RODNEY BURLES AND ATTACHMENTS.................................................................................................. PN104

TIM STEPHENS, AFFIRMED............................................................................ PN105

EXAMINATION-IN-CHIEF BY MS MASTERS.............................................. PN105

EXHIBIT #R4 WITNESS STATEMENT OF TIM STEPHENS AND ATTACHMENTS PN114

CROSS-EXAMINATION BY MR FLANAGAN............................................... PN116

THE WITNESS WITHDREW............................................................................. PN158