PN1

THE DEPUTY PRESIDENT: Good morning, it's Deputy President Clancy. Mr Miller, can you see and hear me?

PN2

MR MILLER: I can, Deputy President, thank you.

PN3

THE DEPUTY PRESIDENT: Thank you. Mr Vallence, can you hear and see me? You're on mute.

PN4

MR VALLENCE: I certainly can hear you and see you, your Honour. Good morning.

PN5

THE DEPUTY PRESIDENT: Thank you. Now, I think the correspondence between the parties in relation to permission for Alcoa to be represented by Mr Vallence was not conclusive either way on the rights afforded under the dispute settlement procedure of the agreement. But in any event, I note the AWU doesn't object to the representation of Alcoa by Mr Vallence, having regard to the matters raised by the dispute or raised in the dispute. I'm satisfied that it was appropriate pursuant to section 596(2)(a). So we'll proceed on that basis.

PN6

I note we have up to six witnesses and I note the position yesterday that Mr Hurst from Alcoa is not required for cross-examination. Therefore, what we'll do is proceed straight into the union witness evidence. Mr Miller, which of the witnesses were you intending on dealing with first?

PN7

MR MILLER: Mr Reilly first if I may, Deputy President, thank you.

PN8

THE DEPUTY PRESIDENT: All right, okay - now the position with the balance of the witnesses is that we'd have them out of the hearing room. I note - at least on my notes - Mr Gallagher from Alcoa is instructing you, Mr Vallence. Are there any issues with the balance of the witnesses leaving the hearing room at the moment and being admitted when they're required for evidence? With Mr Hurst, we can just receive his evidence or his statement into evidence at the time you're presenting your witness case or your evidentiary case.

PN9

MR VALLENCE: Thank you, Your Honour. I didn't know whether you would have us seek to have Mr Hurst attest to the evidence so I have had him join the proceedings this morning - - -

PN10

THE DEPUTY PRESIDENT: All right.

PN11

MR VALLENCE: - - - on the basis that that could happen but I've certainly spoken to the respondent's witnesses and advised otherwise with Ms Alexander and Mr Gleeson that they'll be contacted at the appropriate time to give their evidence.

PN12

THE DEPUTY PRESIDENT: All right, thank you. Mr Miller, if Mr Hurst is available now - I know he's got a commitment shortly - but should we interpose and just receive his evidence into - as part of the record now?

PN13

MR MILLER: That's acceptable to us, Deputy President, thank you.

PN14

THE DEPUTY PRESIDENT: Thank you, all right - well, if Mr Reilly could stay on the line but if all other witnesses can exit the hearing room now and I'll ask my associate to take an affirmation from Mr Hurst and, Mr Hurst, if you could just move into camera view there, please? We're seeing one of your shoulders. That's it.

PN15

MR HURST: Is that better?

PN16

THE DEPUTY PRESIDENT: Marginally - I've got half your face now. Maybe that's your best angle, I don't know. All right, my associate will take an affirmation from you now, Mr Hurst, and then Mr Vallence will deal with your witness statement, thank you.

PN17

THE ASSOCIATE: Mr Hurst, please state your full name and address.

PN18

MR HURST: Russell George Hurst, (address supplied).

<RUSSELL GEORGE HURST, AFFIRMED [10.13 AM]

EXAMINATION-IN-CHIEF BY MR VALLENCE [10.13 AM]

PN19

THE DEPUTY PRESIDENT: Thank you, Mr Hurst. Mr Vallence, if you could take it from here, please.

PN20

MR VALLENCE: Thank you very much, Your Honour. Mr Hurst, could you please state your name and address for the tribunal?‑‑‑Russell George Hurst, (address supplied).

*** RUSSELL GEORGE HURST XN MR VALLENCE

PN21

Thank you. Could you please tell us your position with the respondent?‑‑‑I am the respondent's supervisor. My position is stores and logistic supervisor.

PN22

Thank you. Have you prepared a witness statement in relation to this matter?‑‑‑Yes, I have.

PN23

Could I ask you to turn to - sorry, I should ask, do you have a copy of the digital court book that was issued a viable to you?‑‑‑Yes, I do.

PN24

Could I ask you to turn to page 70 of that digital court book?‑‑‑I am on page 70.

PN25

Thank you. You'll see there that there is a document titled, 'Draft witness statement of Russell George Hurst' which is a statement that's two pages long. It contains 16 paragraphs and appears to be signed by you on 27 June 2022. Is that a copy of your witness statement?‑‑‑Yes, it is.

PN26

Is it your belief that that witness statement is true and accurate?‑‑‑It is.

PN27

I would seek to tender that witness statement, your Honour.

PN28

THE DEPUTY PRESIDENT: Thank you. Mr Miller, I note the position expressed yesterday was that the AWU didn't require Mr Hurst for cross-examination. Are there any objections to the witness statement being received?

PN29

MR MILLER: There are no objections, Deputy President.

PN30

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Russell George Hurst, appearing at page 70 of the court book, comprising 16 paragraphs and dated 27 June 2022 as exhibit R1.

EXHIBIT #R1 WITNESS STATEMENT OF RUSSELL HURST DATED 27/06/2022

PN31

THE DEPUTY PRESIDENT: Thank you, Mr Vallence. Is there nothing further for Mr Hurst?

PN32

MR VALLENCE: Nothing further - thank you, your Honour.

*** RUSSELL GEORGE HURST XN MR VALLENCE

PN33

THE DEPUTY PRESIDENT: Thank you. Mr Hurst, thank you for your attendance this morning and your evidence. You are excused from further attendance. If at any stage later on you wish to observe the balance of the proceedings, you're welcome to but if you do so please do so with your camera and microphone turned off. But other than that you're excused now from further attendance, thank you?‑‑‑Thank you, very much.

<THE WITNESS WITHDREW [10.16 AM]

PN34

THE DEPUTY PRESIDENT: Thank you. Mr Miller, we'll move then to Mr Reilly, please.

PN35

MR MILLER: Thank you, Deputy President. Mr Reilly is located in our building. He's in a different room. Unfortunately he's advising us that he's not able to open the link. With your indulgence, would I be able to bring him into the room in which we are sitting? We can get his evidence from this screen?

PN36

THE DEPUTY PRESIDENT: Yes, it might mean that Mr Winter has to exit stage right. Yes, we'll see how we go with that.

PN37

MR MILLER: Thank you. Thank you for your patience, Deputy President. Shouldn't be more than a couple of moments.

PN38

THE DEPUTY PRESIDENT: That's all right. Thank you. Mr Reilly, we're going to take your evidence now so first thing that will occur is my associate will take an affirmation from you. Then Mr Miller will deal with your evidence in chief. Thank you.

PN39

THE ASSOCIATE: Mr Reilly, please state your full name and address.

PN40

MR REILLY: Patrick Vincent Reilly, (address supplied).

<PATRICK VINCENT REILLY, AFFIRMED [10.19 AM]

EXAMINATION-IN-CHIEF BY MR MILLER [10.19 AM]

PN41

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Miller.

*** PATRICK VINCENT REILLY XN MR MILLER

PN42

MR MILLER: Thank you, Deputy President. Mr Reilly, you mentioned in paragraph 4 of your witness statement that you in your role as a branch executive member are required to attend quarterly branch executive meetings. You've attended four such meetings in this capacity on the following dates: 30 September 2021, 14 December 2021, 29 March 2022 and 8 June 2022. Also in paragraph 5 of your witness statement you mentioned that at each of those meetings you've attended as part of those discussions, the bargaining annual disputes arising under the Portland aluminium operators' enterprise agreement 2021 have been discussed. Can you tell me about the form in which those discussions have taken place?‑‑‑Of course - - -

PN43

THE DEPUTY PRESIDENT: Sorry, just before we get under way - do you want to receive the statement first into evidence, Mr Miller?

PN44

MR MILLER: Yes, Deputy President.

PN45

THE DEPUTY PRESIDENT: All right, we might do that first. So if you'd just perhaps take Mr Reilly to his statement, we'll get that admitted into evidence, please. Or do you want me to do that?

PN46

MR MILLER: I'll do that.

PN47

THE DEPUTY PRESIDENT: Thank you. You're on mute there, I think.

PN48

MR MILLER: Sorry, Deputy President. Mr Reilly, you've prepared a witness statement in relation to this matter?‑‑‑That's correct.

PN49

The contents of your statement are ones which you've prepared yourself and you're willing to expound upon?‑‑‑That's correct, that statement is true and correct to the best of my knowledge, subject to one correction at paragraph 6(a): reference is made to an application made pursuant to section 418 of the Act for protected action ballot order. That should be section 437.

PN50

Thank you.

PN51

THE DEPUTY PRESIDENT: So subject to that correction, Mr Reilly, this is the - you'd like that statement admitted into evidence as part of the AWU's case, is that correct?‑‑‑Yes.

PN52

Thank you. Mr Vallence, subject to cross-examination are there any objections to the receipt of this witness statement into evidence?

*** PATRICK VINCENT REILLY XN MR MILLER

PN53

MR VALLENCE: Your Honour, there is no objection to the admission of the witness statement, as foreshadowed in the correspondence sent through to chambers last week. What I would observe though is that it appeared as though Mr Miller was then proceeding to then ask further questions to expand on the content of that statement. I'm conscious that's something of which the respondent has had no forewarning on or hasn't been able to seek instructions in relation to any further particulars that might be provided placing at some disadvantage. I raise that, Your Honour, just simply on the basis that it may place me in a position where I do need to seek some further instructions and I'm loathe to delay the matter. This was a statement that was filed late in any event, and we would object to the leading of any further information. But if it is - leading any further evidence, I should say expanding on it - but should it be the case that that's allowed, then as I say I foreshadow that we may need to seek instructions, Your Honour.

PN54

THE DEPUTY PRESIDENT: All right, well, I understand the position. What we'll do is just see where this - any additional questions focus. The question that was put, as I recall, is going to go to the nature of discussions at branch meetings and I note that paragraph 6 of the statement provides at least a high level summary but it's noted and, Mr Miller, I'm sure you'll understand the nature of what is being put by Mr Vallence. But I'll receive the statement into evidence and we'll see where it takes us. So the witness statement of Mr Patrick Vincent Reilly, which appears in the digital court book at page 38 and comprises eight paragraphs and is dated 14 July 2022, will be marked exhibit A1.

EXHIBIT #A1 WITNESS STATEMENT OF PATRICK REILLY DATED 14/07/2022

PN55

THE DEPUTY PRESIDENT: Now, Mr Miller, any additional matters, please, then we'll see what they raise, thank you.

*** PATRICK VINCENT REILLY XN MR MILLER

PN56

MR MILLER: Thank you, Deputy President. Mr Reilly, just in relation to paragraph 5 of your statement, you reference that in each branch executive meeting that you've attended, as part of those discussions that bargaining and/or disputes arising under the Portland Aluminium Operators' Enterprise Agreement have been discussed. Can you tell us about the form in which those discussions have taken place?‑‑‑Yes, look, it's difficult to recall the precise details of some of those earlier meetings. Certainly in relation to the most recent meeting, which is when I commenced presenting on behalf of the industrial department at branch executive, where there is a dispute or a matter that is of relevance or significance to the branch, discussed in that branch executive, it would typically involve me providing some details as to the relevant facts, terms of the enterprise agreement or legislation that the matter concerns, discussing the application of the enterprise agreement or legislation to those facts and where we're discussing a matter that is not yet concluded we will discuss strategies for resolving the matter or best case forward. It might involve looking to leverage resources in the branch outside of the industrial department. Where it's a matter that has already concluded, typically we will discuss takeaways from those matters, learnings, how those learnings might be applied in relation to future matters or bargaining for future enterprise agreements. There might be questions asked by various of the members' branch executive or suggestions, observations made. That's what the discussions (indistinct).

PN57

Thank you, Mr Reilly. No further questions, thank you, Deputy President.

PN58

THE DEPUTY PRESIDENT: Thank you. Mr Vallence, your opportunity to cross-examine.

CROSS-EXAMINATION BY MR VALLENCE [10.27 AM]

PN59

MR VALLENCE: Thank you very much, your Honour. Mr Reilly, you have a copy of your witness statement in front of you? It's on page 38 of the digital court book?‑‑‑Yes.

PN60

You've stated in your witness statement that you're a member of the branch executive, that's correct?‑‑‑Correct.

PN61

You've participated in the meetings as set out in paragraph 4 on 30 September 2021, 14 December 2021, 29 March 2022 and 9 June 2022. Am I correct in my understanding that the branch executive meetings quarterly to carry out the functions of the branch executive as set out in the rules?‑‑‑Yes.

PN62

And you've obviously just led evidence or given evidence, I should say, and confirmed at paragraph 5 or stated at paragraph 5 that the industrial department will report on its case load and discuss matters of importance. Now, do I take it that in your role or your substantive role as lead industrial officer, you then provide those case details and discuss the matters of industrial importance with the rest of the executive branch?‑‑‑Yes.

PN63

Where do you get the detail from to provide that to the executive branch?‑‑‑Well, in relation to matters that I've dealt with personally I get that information myself. In relation to matters that I've not dealt with personally, I will get that information from the other officials and sometimes officers involved in those cases. As I've said sometimes additional input will be provided by members of branch executive, including where those members of branch executive will also have been involved in the matters. So we have 15 of the 25 members of the branch executive are delegates. Yes, so sometimes they will provide further information at those meetings, as will the organisers if they're involved.

*** PATRICK VINCENT REILLY XXN MR VALLENCE

PN64

Okay, and do I take your evidence a moment ago, the reason for discussing the industrial matters of importance, as we've characterised it, is to discuss how the union will support or engage in or provide support or undertake its functions in relation to that industrial matter, or if it's already occurred, to consider how that progressed and any learnings or takeaways that might be valuable to consider?‑‑‑Yes, I would agree with that.

PN65

Okay, and I'm assuming that the branch executive is also discussed - and correct me if I'm wrong - in addition to the matters that are set out at 6(a) of your witness statement, disputes and other matters relevant to other businesses and other industries?‑‑‑Yes.

PN66

That's included disputes and other matters referred to by - to your union by delegates or members that are not on the executive branch?‑‑‑Yes.

PN67

How does that occur? If somebody is not on the executive branch as an executive branch member, how does the delegate provide information to you or the other officials that is discussed at the executive branch meeting?‑‑‑Our discussion with the officials that they are involved in that matter with, were not on branch executive, who then feed that information through to me, eventually.

PN68

So for example - and I use this as an example only because this is a situation that I have some knowledge of - if Mr Jones wasn't on the branch executive, then that information would normally come through someone like Mr Saunders?‑‑‑Yes.

PN69

The information that comes from the branch executive back to the delegate would then go back through the industrial officer, who has carriage of the matter?‑‑‑If there was anything that it was necessary or appropriate to feed back to that specific delegate, yes.

PN70

Okay, and based on your answer do I take it that that is somewhat of a rarity, that the feedback would go back towards the delegate?‑‑‑I wouldn't say it's a rarity but it doesn't happen every time.

PN71

So based on your evidence, there is no need for a person to be a member of the branch executive to have your union consider the issues or assist them in their roles as a delegate?‑‑‑Sorry, can you repeat the question, please?

*** PATRICK VINCENT REILLY XXN MR VALLENCE

PN72

So based on your evidence, there is no need for a delegate to be a branch executive member, to be heard by your union or to have the union consider the issues that you're dealing with at any particular time?‑‑‑There is no need for them to, but that's not to say it doesn't assist, where they are. I would say where a delegate is involved in a matter and also a member of the branch executive, it certainly enhances the discussions in those meetings.

PN73

So it's nice to have but it's not essential?‑‑‑Beneficial, but it's not essential.

PN74

Mr Reilly, you state that you've attended four executive branch meetings?‑‑‑Yes.

PN75

How long do the branch executive meetings usually go for?‑‑‑I think two to three hours - in terms of the normal meeting, there are usually discussions amongst officials beforehand and afterwards.

PN76

That's usually settled on one day, do I understand that correctly?‑‑‑Yes.

PN77

It doesn't go over one day to the next?‑‑‑No.

PN78

Okay. During your evidence you referred to the application for protected action ballot related to members of your union employed by the respondent. Do you recall what meeting that was at?‑‑‑I am fairly sure it was the September meeting but I'm not certain. If it wasn't the September meeting it would have been the December meeting.

PN79

Do you recall whether that was a discussion about making an application or whether it was about taking away some learnings?‑‑‑I can't recall that with specificity.

PN80

That meeting was on 30 September, correct?‑‑‑Correct.

PN81

The 2021 agreement, which I - let's go back a step, I'll ask you the question: I presume that would relate to the 2021 agreement that applied to your members employed by the respondent?‑‑‑Yes.

PN82

That agreement was approved on 1 October 2021, which was quite some time prior. Are you sure that was discussed at the September meeting?‑‑‑Sorry, you said the 2021 agreement was approved (indistinct) 1 October.

PN83

By the Fair Work Commission, yes - you can see that at page 295 of the digital court book, if you need to check it?‑‑‑Okay, so are you putting to me that the agreement was approved prior to the meeting?

*** PATRICK VINCENT REILLY XXN MR VALLENCE

PN84

No, I'm saying that it was approved the day after the meeting?‑‑‑Okay, so you're saying the (indistinct) action was some time prior to the approval of the agreement.

PN85

Yes, so I'm just wanting to make sure that that was a matter that was discussed as part of the branch executive, because the agreement was signed off by the parties as you can see at page 325 in mid-September. Of course then it went through its process of approval before the Fair Work Commission. So I was just looking to understand if that was the case, I'd expect that - it was probably reasonable to assume, correct me if I'm wrong - but industrial action had finished some time in early September. So I was just looking to make sure that it was something that was - that's when it finished, I should say. I was just looking to make sure that it was a matter that was discussed and there was - you're clear that that was the case?‑‑‑Yes, yes, that's correct. As I said we discuss both ongoing and concluded matters at branch executive.

PN86

Okay. Do you recall whether Mr Jones participated in that September 2021 executive branch meeting?‑‑‑I believe he did but not with any - I don't know that he did.

PN87

Would have that meeting, from your recollection - let me withdraw that. Mr Jones' witness statement provides or states that - in his witness statement, I should say - Mr Jones states that he participated in branch executive meetings through 2021 up until December 2021, using Microsoft Teams?‑‑‑Yes. I believe the - we all participated in the September meeting via Microsoft Teams.

PN88

Okay. Is that an occurrence which still occurs now, that some people dial in through Microsoft Teams?‑‑‑No, no - it was COVID-related. Certainly the preference is to always have everyone in the room for discussions.

PN89

Would you agree with me that use of Microsoft Teams could be facilitated still?‑‑‑It could. It wouldn't be desirable.

PN90

Do you recall with any particularity how long the meeting went for in September 2021?‑‑‑Like I said, they tend to go for two to three hours, so that's what I would expect.

PN91

Okay, and you've obviously referred to in your statement a number of matters, being those matters that are dealt with at paragraph 6, which relates to various applications, plus discussions around the terms of the 2021 agreement?‑‑‑Yes.

*** PATRICK VINCENT REILLY XXN MR VALLENCE

PN92

You also refer at paragraph 7 to campaigns that may affect members of the Australian Workers' Union and then finally at paragraph 8 you refer to the endorsement of delegates and health and safety representatives?‑‑‑Yes.

PN93

Of that two to three hours, how much time is spent on dealing with those matters - roughly, as an estimate?‑‑‑Well, it would vary from meeting to meeting, depending on - - -

PN94

Perhaps if you could - sorry, keep going?‑‑‑Yes, depending on the significance of the matter, depending on what other members of the executive had to say or ask about the matter, particularly in relation to meetings in 2021 it's hard to recall exactly how long was spent discussing each of these matters. In the most recent meeting, June, we discussed both the drug and alcohol policy dispute and this dispute that we're here in relation to right now. I would estimate it would have been 20 to 25 minutes that we spent discussing Alcoa-specific matters.

PN95

And I'm assuming that the remainder of the meeting was then dealt with - was to deal with the functions of the executive branch under the rules and/or dealing with industrial matters for other organisations, that would be correct?‑‑‑Yes, amongst other things - we don't exclusively discuss the (indistinct) of the branch. Things come up - for example, reference campaigns. I'm not sure that the branch specifically require (indistinct words) the union simply require campaigns to be discussed with branch executive. But branch executive has input into things other than those matters specifically mandated by the (indistinct).

PN96

Would you say that, based on your experience - I'm conscious that it's across four meetings - that that 20 to 25 minutes in relation to Alcoa Portland-related matters would be consistent across those meetings, roughly, or is there a different range that you'd provide?‑‑‑Yes, there is a different range across those meetings - I'd estimate between 10 and 25 minutes, yes.

PN97

Okay, and you recall Mr Jones participating in the December 2021 meeting?‑‑‑I can't recall.

PN98

Do you recall whether Mr Jones participated in the March 2022 branch executive meeting?‑‑‑No, I'm sorry, I can't recall.

*** PATRICK VINCENT REILLY XXN MR VALLENCE

PN99

Finally, do you recall if Mr Jones participated in the June 2022 executive branch meeting?‑‑‑I recall that he was not (indistinct words) to that meeting. Sorry, if I could just go back a moment - I think I might have misheard you, and I apologise. So in relation to the March meeting, the question was whether he participated in the meeting as opposed to participated in the Alcoa-specific discussions?

PN100

Yes, so in the branch executive meeting?‑‑‑Okay, my apologies - he was definitely present for the March meeting.

PN101

And you recall for that March meeting in particular how much time might have been spent on Alcoa Portland-related matters?‑‑‑In relation to the industrial component, 10 to 15 minutes.

PN102

Okay. Sorry, just to go forwards, in relation to the June 2022 meeting, do you recall if Mr Jones attended that or participated in the executive branch meeting?‑‑‑No, he did not. He wasn't permitted to in the June meeting.

PN103

Do you recall if matters relating to Alcoa Portland were discussed at that meeting?‑‑‑The June meeting?

PN104

Yes?‑‑‑Yes.

PN105

Do you recall which of those matters that are listed in your witness statement were discussed?‑‑‑Yes, the drug and alcohol policy dispute, which we had received a decision in relation to, and the dispute that is (indistinct) right now.

PN106

In terms of the information shared, were you the person that shared that information with the executive branch, at that meeting?‑‑‑Yes.

PN107

Okay, and how did you receive that information?‑‑‑Received that information when Mr Miller was handling the dispute that we're currently participating in. I received information from our (indistinct), our legal officer in relation to the drug and alcohol policy dispute. I took other information from the drug and alcohol dispute from the decision. Yes, that's how I received this information.

PN108

Do you recall if there was any information passed back to Mr Jones as the senior site delegate about what the union was doing in relation to those matters, or what it had considered?‑‑‑I recall having some discussions with Mr Miller about it. As to whether that information, the contents of those discussions, was passed back to Mr Jones, I can't be sure.

*** PATRICK VINCENT REILLY XXN MR VALLENCE

PN109

Okay. And would you agree with me that the role of an executive branch member is a specific role that is different to a delegate role?‑‑‑I think one feeds into the other, particularly where the delegate of a relatively large site, where matters are likely to arise, that would be considered by the branch executive.

PN110

That wasn't my question, though, Mr Reilly. My question is are they two discrete roles?‑‑‑As I say, I think they're related.

PN111

Again, the question is whether they are two discrete roles. Perhaps I can be a little bit more particular about that - would you agree with me that the union rules recognise delegates in their role as being a different role to an executive branch member?‑‑‑Yes, the rules recognise that as two roles (indistinct).

PN112

Thank you, and it would be the case that in relation to Mr Jones' attendance as an executive branch member, of a meeting of two to three hours' duration, he would be involved in matters that would be relevant to him as a senior site delegate for approximately 10 to 25 minutes of those meetings, using the averages that we've discussed?‑‑‑Yes.

PN113

No further questions, thank you, Your Honour.

PN114

THE DEPUTY PRESIDENT: Thank you. Mr Miller, anything in re-examination, please?

PN115

MR MILLER: Yes, thank you, Deputy President.

RE-EXAMINATION BY MR MILLER [10.48 AM]

PN116

Mr Reilly, you've mentioned in relation to the attendance of those at branch executive, concerning discussions in particular in relation to the Portland aluminium that involved bargaining and (indistinct) disputes?‑‑‑Yes.

PN117

Would you say that those who attend those meetings, with familiarity of those knowledge at the workplace are actually representing those issues within the branch executive meeting forum?‑‑‑Yes.

PN118

Would you say that that representation is helpful for informing the branch executive members, who may not be familiar with the issues at that workplace, of the progress of those issues generally?‑‑‑Yes.

PN119

No further questions, thank you, Deputy President.

*** PATRICK VINCENT REILLY RXN MR MILLER

PN120

THE DEPUTY PRESIDENT: Thank you. Mr Reilly, thank you for your evidence. You're excused from further attendance. You may of course continue to observe the proceedings. Just please do so with camera and microphone off, thank you?‑‑‑Thank you, Deputy President.

<THE WITNESS WITHDREW [10.50 AM]

PN121

THE DEPUTY PRESIDENT: Thank you. Mr Miller, who would you like to call next, please?

PN122

MR MILLER: I'd like to call Mr Saunders, thank you, Deputy President.

PN123

THE DEPUTY PRESIDENT: Thank you. Could we admit Mr Saunders, please, into the hearing room?

PN124

MR VALLENCE: Your Honour, if I may, just a quick observation: I noted at the start of proceedings that Mr Saunders was co-located with Mr Jones. I'm assuming that arrangements have been made for Mr Jones to exit that room and not be in the same room as Mr Saunders whilst he's providing evidence, and vice versa. I just wanted to raise that, thank you, Your Honour.

PN125

THE DEPUTY PRESIDENT: Thank you. Good morning, Mr Saunders. Can you hear and see me?

PN126

MR SAUNDERS: Yes, I can, sir, thank you.

PN127

THE DEPUTY PRESIDENT: Thank you very much. Now, you're in a room - are you alone at the moment?

PN128

MR SAUNDERS: I am, yes - (indistinct) has stepped out.

PN129

THE DEPUTY PRESIDENT: Thank you. Have you got access to the digital court book?

PN130

MR SAUNDERS: No, sir, I don't have access to the court book but I do have my statement in front of me.

PN131

THE DEPUTY PRESIDENT: All right, well, that's a good start. The statement is important and if there are matters in the court book that you're taken to we'll attempt to share that on the screen for you. So what will happen first is my associate will take an affirmation from you and then Mr Miller will deal with your evidence in chief and then Mr Vallence, if he has questions, will ask them to you in cross-examination. So if you could just undertake the process of the affirmation first, please; thank you.

PN132

THE ASSOCIATE: Mr Saunders, please state your full name and address.

PN133

MR SAUNDERS: Robert Allan Saunders, 145 Bridgewater Road, Portland.

<ROBERT ALLAN SAUNDERS, AFFIRMED [10.52 AM]

EXAMINATION-IN-CHIEF BY MR MILLER [10.52 AM]

PN134

THE DEPUTY PRESIDENT: Thank you, Mr Miller.

PN135

MR MILLER: Thank you, Deputy President. Mr Saunders, could you please again confirm your name and address?‑‑‑Robert Allan Saunders, 145 Bridgewater Road, Portland.

PN136

Thank you. Are you willing to admit this statement into evidence?‑‑‑Yes.

PN137

Is your statement true and correct in every particular?‑‑‑Yes.

PN138

Thank you, Mr Saunders.

PN139

THE DEPUTY PRESIDENT: Well, I'll just receive it into evidence first. Mr Vallence, any objections, subject to cross-examination?

PN140

MR VALLENCE: No objection, thank you, Your Honour.

PN141

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Mr Rob Saunders, which appears in the digital court book at page 17, comprises 42 paragraphs and is dated 14 June, as exhibit A2, thank you.

EXHIBIT #A2 WITNESS STATEMENT OF ROBERT SAUNDERS DATED 14/06/2022

PN142

THE DEPUTY PRESIDENT: Thank you, Mr Miller.

*** ROBERT ALLAN SAUNDERS XN MR MILLER

PN143

MR MILLER: Mr Saunders, if I could turn you to paragraph 4 of your statement, you state there that you were employed by the respondent between March of 2005 and June of 2016. For most of that time you served as crew delegate for the C shift crew?‑‑‑Yes, that's correct.

PN144

In paragraph 5 of your statement, as crew delegate you represented the members of the crew in disputes with management and advocated for improved safety, pay and conditions. Also, Mr Saunders, you mention in paragraph 11 of your statement being a site delegate was first included in the 2011 enterprise agreement and then in paragraph 12, that the role of senior site delegate existed prior to that time. As the crew delegate for the C shift, to what extent did you work with or communicate with the senior site delegate?‑‑‑Yes, we had a lot to do with each other. I should probably be a little more specific - I was crew delegate for the hot rooms crew on C shift. We had delegates for - there's several areas and there are delegates for each of those areas so, sorry, just being a bit more specific about that. Yes, but I had quite a lot to do with Peter King at the time, it was, during that time. Whatever issues we had, on the crew, I'd discuss it with him and - with a view to either him taking it further to management, perhaps, or to the OWU, whatever was necessary.

PN145

What sort of issues then did you discuss with the senior site delegate, in your reference, with Mr King?‑‑‑We would discuss safety matters - of course when we'd come around to renewing agreements, we'd be discussing that, myself and the other delegates, of course. We'd be contributing to the log of claims, for example. There was often little problems with people being given enough opportunity to get their annual leave or long service leave, all the regular matters that come up at a workplace.

PN146

Mr Saunders, from the time you commenced with the respondent in June 2005, what duties did you observe the senior site delegate perform?‑‑‑Well, he was - obviously all the regular delegate duties and as the senior site delegate, of course, he's working right across site. I knew he was on various boards and things with the AWU. He would also assist other AWU members on site - not necessarily the direct hire Alcoa employees, but some of the contractor groups and things that are on site there, he would assist them when needed. Yes, and of course he was often going down to - travelling to Melbourne for Commission hearings and meeting with union officials.

*** ROBERT ALLAN SAUNDERS XN MR MILLER

PN147

Mr Saunders, you mention in paragraph 20 of your statement that whilst negotiations were on foot Portland aluminium expressed concerns that Mr King was meeting with and acting as an AWU representative for contractors not on site and not covered by the Portland Aluminium Operators' Enterprise Agreement 2014. What exactly were the concerns that were expressed to you?‑‑‑Yes, they were unhappy that he would - well, for example, as I mentioned, contractor groups on site, that he would be assisting AWU members there. Also, I understood that he had been doing some work at other sites representing AWU members so I think Pivot, for example, are a company here in town. He had assisted in negotiating their last agreement - an agreement at the time, at (indistinct words). So he had been - you know, he'd spread his - tried to be of use to AWU members beyond those that were directly his members under the agreement.

PN148

Mr Saunders, were those concerns expressed by the company in enterprise bargaining meetings?‑‑‑Yes, they were - specifically by Tom Pethybridge, predominantly, at the time. There had been some discussion prior to the meetings in the lead up to that as well. We all knew that the company wasn't pleased with that and I agreed with them.

PN149

Mr Saunders, you then go on to state in paragraph 21 of your statement that the aim of clause 24.1(v) was to narrow the scope of the representative role for the senior site delegate only to members covered by that agreement. Was it in your view the narrowing of that scope pursued by the company in negotiations in response to its concerns about Mr King's conduct in meeting with and acting as an AWU representative for contractors not on site, not covered by the Portland Aluminium Operators' Enterprise Agreement 2014 and to ensure that the role would no longer operate in that way?‑‑‑Yes, it was.

PN150

THE DEPUTY PRESIDENT: Just - I won't jump on everybody because these things flow both ways but that's a massively leading question and you could ask it a different way but you know, I know we're not bound by the rules of evidence but it's important that this is the witness evidence of Mr Saunders, not a series of submissions delivered under the guise of examination in chief.

PN151

MR MILLER: I understand, Deputy President, thank you.

PN152

THE DEPUTY PRESIDENT: Thank you.

*** ROBERT ALLAN SAUNDERS XN MR MILLER

PN153

MR MILLER: Mr Saunders, in terms of the way that the company then approached negotiations, did you consider that in light of what was being discussed that their aim was to narrow the scope of that clause to ensure that Mr King's conduct was different in the future?‑‑‑Yes, so maybe to give you the context - the previous clause was very broad. It just - it was effectively, 'He can continue doing what he's doing'. They didn't want that to continue. Myself and the AWU agreed that it was inappropriate and our discussions were around narrowing it to what was appropriate. Their complaints were two, that I can recall: it was that he should only represent the AWU members covered by the agreement and that he should be operating on site, because he was operating from an office in the CBD in Portland. So they wanted him back on site, and only representing the AWU members covered by the agreement, which we agreed to and that's what we put in the clause.

PN154

Otherwise, Mr Saunders, from what you say in paragraphs 22 through 24 of your statement - was there, from what you recall, an expressed intention to alter what essentially was the representative role of the position?‑‑‑Not in terms of his representation of the appropriate members, the members under the agreement. I think that's - if I understand your question properly. There was no indication that they wanted to reduce the work he was doing for the Alcoa AWU members. What they wanted to achieve was to stop him from representing members outside of that agreement. So for example, issues like representing Alcoa AWU members at BECM was not raised. They had no problems with that. That wasn't in issue at all. It was only about representing people that were outside of the agreement.

PN155

Was there, from what you recall, an expressed intention on behalf of the respondent to alter the extent to which the senior site delegates met with company representatives or union officials?‑‑‑No, it was never raised.

PN156

Was there any expressed intention from the company that there be any changes to the way that the senior site delegates represented members in meetings with AWU officials?‑‑‑No.

PN157

That's all, thank you, Mr Saunders. Thank you, Deputy President.

PN158

THE DEPUTY PRESIDENT: Thank you. Mr Vallence, please.

CROSS-EXAMINATION BY MR VALLENCE [11.03 AM]

PN159

MR VALLENCE: Thank you, Your Honour. I will proceed with cross-examination although I do note that a number of the questions that my friend has just posed to Mr Saunders went to new matters around the discussions during the course of negotiations, which wasn't previously included in Mr Saunders' initial witness statement or in subsequent witness statement that certainly could have been provided in accordance with the directions that were issued by yourself. I'll need to turn my mind to as to whether that needs to be addressed more fulsomely through the respondent's witnesses. But as I said earlier, I haven't had the chance for instructions on that. I'll see how I go with the cross-examination but I might raise that further, Your Honour, as I digest what's been provided. Mr Saunders, if I understand it correctly you're an industrial organiser for the AWU?‑‑‑Yes, I am.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN160

You have a focus on the Portland area?‑‑‑Well, the south-west corner of Victoria - obviously this is a very large site for us.

PN161

So it's broader than the Portland area - it's the south-west of Victoria?‑‑‑Yes, I go down to - travel east to Moriac and north up to Warracknabeal. Yes, it's a large (indistinct).

PN162

And as part of that role you're actively involved with the membership of the AWU that's employed by the respondent?‑‑‑Yes.

PN163

What does your role in supporting the members of the AWU employed by the respondent entail?‑‑‑All the standard stuff of an organiser - you know, assisting them with various disputes, issues of pay or leave or member Mayfield is being bullied, or whatever it may be - all those usual sort of matters; WorkCover, perhaps - yes, it's very broad.

PN164

Is it fair to describe you as the principal AWU representative supporting the members of the AWU employed by the respondent?‑‑‑Yes.

PN165

Are you an honorary member of the executive branch yourself, Mr Saunders?‑‑‑No.

PN166

You referred in your earlier evidence to the clause of the 2014 agreement that dealt with the senior site delegates. I think you described it as a particularly broad clause which simply allowed Mr King, who was the then senior site delegate, to continue doing what he was doing?‑‑‑Yes.

PN167

That's correct, isn't it?‑‑‑That's right, yes.

PN168

Can you describe for us what the arrangements were to the best of your knowledge?‑‑‑Yes, look, Peter King had free range to run his own show in whatever way he chose. Sorry - from the outside. I mean, obviously I wasn't in an office with him but that's how it seemed as a delegate on site. He was able to - he had free range to come and go as he chose, to travel to Melbourne to discuss matters with officials when was needed. Like I say, I was aware he was on committees in the branch. There was times when I was aware that Alcoa or Portland Aluminium actually paid for him to fly down to Melbourne to fulfil his role.

PN169

And the arrangements, did that provide for a full-time, senior site delegate?‑‑‑So currently or - - -

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN170

Under the 2014 agreement, I'm still talking about, Mr Saunders?‑‑‑Yes, it was - sorry, I don't have that one in front of me but the clause is something to the effect of, the duties will remain the same or something like that. So it was accepted practice and just continued the practice.

PN171

What I'm asking about is the arrangements that actually applied. It's my understanding that - - -?‑‑‑He was a full-time delegate, yes.

PN172

He didn't have any - he had no operational responsibilities?‑‑‑No, he had been elected prior to my joining Alcoa. He had been elected from the cut and bakes area, I think. So he was - had been employed as an operator and had been elected as the site delegate and so he was an operator performing the duties of a site delegate.

PN173

Okay, but he didn't do any operational duties, did he?‑‑‑No, not while he was site delegate, no.

PN174

He was classed as a full-time senior site delegate?‑‑‑When you say classed, what do you mean? So not in the - the only classifications within the agreements were for operators. There was - there was this one line in there about, 'By the way, there's a site delegate and that practice will continue'.

PN175

So he was allowed to undertake that role on a full-time basis, senior site delegate?‑‑‑Yes, yes, that's right - I just, I don't want to - I just don't want to give the impression that was - it was a separate position. He was an operator who was allowed to perform the site delegate role.

PN176

That situation changed with the negotiations for the 2018 agreement, is that correct?‑‑‑Yes, yes, it did.

PN177

So when you said in your earlier evidence that the only two issues that were raised by the company through the negotiation process was that a senior site delegate should only represent AWU members and should operate on site. That's not correct, is it, because they also wanted to convert that role to a role where they performed operational duties?‑‑‑Sorry, I'm - yes, I agree with that, sorry. That was what it developed to, you're right. Originally the issue was about Peter King. Sorry, there's a little confusion - I guess it's a little confusing because we were originally discussing during the negotiations Peter King performing the role. Along the way, he finished up and then Selwyn Jones was elected. So the idea of Selwyn or the new site delegate performing operational duties, that developed along the way.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN178

And under the 2014 arrangement was Mr King allowed to undertake representation of the AWU members employed by the respondent?‑‑‑Yes.

PN179

And in what way did that occur?‑‑‑Well, the same way it would with any delegate. He would meet with managers or - meet with members, meet with managers, represent people, all the usual thing.

PN180

And was he allowed to be involved in the affairs of the union?‑‑‑Yes, I believe so - sorry. So that he was - I'm not sure when he was elected under BECM but I believe it was before that. He'd been a BECM member for a long time. I think it was something like 20 years but I'm not on BECM. I'm not sure. So I understand he was on BECM in 2014, for example, and continued on, and yes, as I say, Alcoa actually at times would pay for him to fly down to Melbourne to attend these meetings. At the time, just to make it clear, sorry - at the time Alcoa had a standing reservation with a local airline that was flying in and out of Portland. They had, I don't know, a few seats booked regularly and they would allow him to use that.

PN181

And to your understanding was there any restriction on the way that Mr King was allowed to be involved in the affairs of the union?‑‑‑I never saw any, no.

PN182

Now, you were actively involved in the negotiation for the 2018 agreement?‑‑‑Yes.

PN183

And do you agree that during the negotiations for that agreement the senior site delegate role was a matter of importance to both parties?‑‑‑Very much, yes.

PN184

And would you agree that the reason it was a matter of importance to the AWU was because the company wanted to significantly change the nature of that role?‑‑‑Yes.

PN185

One of the things, for example, was they wanted to change it from a person who could undertake those duties on a full-time basis to somebody who had to undertake operational duties, correct?‑‑‑Yes, sorry - yes, look, you're right. I'm just a little hesitant because I came in partway through the negotiations. So there had been negotiations - in fact, I came in the day before a vote was held on an offer that - I don't recall. I had nothing to do with that. I don't recall exactly - there was a change proposed to the site delegate clause at that point. That offer was rejected, then I started negotiating or continued the negotiations. But at that point Peter King was off on sick leave, yes, and things developed the way they did.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN186

Okay, so for some time before you took over the negotiation process, negotiations had already been underway, is that what you're saying?‑‑‑Yes.

PN187

So you weren't actively in the meetings or the other discussions regarding what - the negotiation discussions, if I can put it that way?‑‑‑I was in the meetings that - after the original offer had been rejected we then commenced new negotiations. I took over those.

PN188

Okay?‑‑‑That's where this clause that we've ended up with was developed.

PN189

That was my next question: as part of the negotiations, the parties worked on inserting a completely new clause to detail the rights and obligations of the senior site delegate, didn't they?‑‑‑That's right.

PN190

Ultimately, after extensive negotiations, the parties agreed on the clause to apply to the senior site delegate which was included in the 2018 agreement?‑‑‑Yes.

PN191

And that was subsequently included unchanged in the 2021 agreement?‑‑‑Yes.

PN192

It was the case that your union was seeking to provide for the senior site delegate role to be allowed to be involved in the affairs of the union without limitation, correct?‑‑‑Yes. We didn't - I should make it clear: we weren't aware that there was any objection to that. That certainly had not been raised with me. As I just make clear - so that as I said the only thing they ever raised with me were those two matters of, 'We want him on site', and, 'We want him narrowed to just the Alcoa employees'.

PN193

Okay. I'm conscious you don't have a copy of the digital court book. Perhaps if I put some propositions to you and you can tell us whether you're able to make comment on those. If I said to you that on or about 10 October 2017 Mr Ben Davis proposed a clause which allowed the senior site delegate to participate in the affairs of the union would you be able to comment on that?‑‑‑Is that - no, sorry. Look, I know there had been some discussion prior to my - yes, I think that would have been just prior to my coming back to Portland and taking over the negotiations so sorry, I couldn't comment on that.

PN194

No problem. Your Honour, what I might do if it's okay with you, is I might put the - share the document with the witness. I just want to progress through a number of documents that were developed or tabled during the course of the negotiation process to just address this point, if that's okay with you.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN195

THE DEPUTY PRESIDENT: Yes - are they in the court book?

PN196

MR VALLENCE: Yes, they are, Your Honour.

PN197

THE DEPUTY PRESIDENT: I'm just wondering whether it's easier for my associate to bring up the document or for yourself.

PN198

MR VALLENCE: If I have capacity to share I should be able to do that, Your Honour?‑‑‑So while you're doing that is it okay if I just step out and grab a bottle of water? I'll only be a couple of seconds.

PN199

THE DEPUTY PRESIDENT: Yes?‑‑‑Thank you.

PN200

Mr Vallence, I think you can share the document, I understand, so if you want to attempt to do that while we're waiting for Mr Saunders to come back?‑‑‑I'm back.

PN201

MR VALLENCE: Is that there, Your Honour?

PN202

THE DEPUTY PRESIDENT: It is, I can see it. Mr Saunders, can you see that document there on the screen?‑‑‑I can see it. I can, yes.

PN203

Okay, well, the only challenge might be the font size but let's get into it and see how that goes.

PN204

MR VALLENCE: I'm just going to take you, Mr Saunders - you'll see here this is page - you're on (indistinct) page 90 of the digital court book.

PN205

THE DEPUTY PRESIDENT: Yes.

PN206

MR VALLENCE: You'll see there - I just want to make sure I've got the right clause - no, I need to go to page 90. I've put the wrong number in. You'll see there, Mr Saunders, that this is an email supplied by Mr Gleeson which is following him receiving an email from Mr Ben Davis on 10 October 2017?‑‑‑Yes.

PN207

If I could take you to this document: this is an attachment that was received by Mr Gleason, which included a clause that had been proposed by Mr Davis. Now, could you share with us who Mr Ben Davis is?‑‑‑He's the state secretary of the AWU.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN208

Would you agree with me that that particular clause there provides for the senior site delegate or proposed - I should suggest - the site's senior delegate could assist, could participate in the affairs of the union?‑‑‑Yes.

PN209

Okay, and would you agree with me that that doesn't include any restriction on that capacity?‑‑‑Yes.

PN210

I'll now take you to page 116 of the digital court book, which will not be displayed but I just need to - images. I'm not trying to make anybody dizzy, I'm just trying to get (indistinct) page. Okay, and you see that email there, Mr Saunders?‑‑‑Yes.

PN211

Do you see that's an email from Mr O'Brien, being the assistant branch secretary to Mr Gleeson?‑‑‑Yes, yes, I was cc'd in that.

PN212

This included a set of guidelines related to the senior site delegate, is that right?‑‑‑Yes.

PN213

Do you agree with me that those guidelines no longer include a statement that the senior site delegate can participate in the affairs of the union?‑‑‑It doesn't use those words. It does say the site delegate can attend meetings with members and management or union officials as part of their representative roles, which to our mind achieved the same end.

PN214

So would you agree with me that it says: 'As a part of their representative role', is an addition to what had been proposed about affairs of the union; it conditions it on being a part of their representative role?‑‑‑Yes, that's right - so it would apply if the site delegate was representing his members - his or her members.

PN215

So the previous proposal had contemplated affairs, participated in the affairs of the union without any limitation or link to the representative role and this was a separate document from the AWU, which now proposes a capacity to meet with union officials but conditions that on it being part of the representative role. You agree with that?‑‑‑Yes. Would you be able to take me back to that previous email?

PN216

You're asking a lot of my technical capacity, Mr Saunders?‑‑‑Apologies. I've got great faith in you.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN217

Thank you. (Indistinct) this to work. You've got that there?‑‑‑Yes, yes - so the difference as I see it is that clause there doesn't achieve what the company was after in terms of narrowing it to only their employees. I mean, you're splitting hairs but representation of employees, could be any employees so what the new clause did was narrow it to representing those employees but still allowing for them to meet - him or her - to meet with union officials to represent those employees.

PN218

Okay. When did you become involved in the negotiations, Mr Saunders?‑‑‑December 2017, I think.

PN219

That wasn't after this document was prepared?‑‑‑Yes.

PN220

Okay, so when you speak to this that's your view based on the read of the language, not because you were involved in its preparation or distribution?‑‑‑It's based on the conversations I've had with Alcoa management during that time. They were very clear to me that was what they - what they were after.

PN221

Okay, but it is correct to say that this was to provide for the site senior delegate to participate in the affairs of the union and without any restriction?‑‑‑Yes.

PN222

And the next proposal didn't provide for the same outcome?‑‑‑Yes.

PN223

Just bear with me two seconds. It provided for - - -?‑‑‑The representation of the Alcoa employees, is what it provided for.

PN224

So they put a condition on it being - it put a condition, didn't it, on the circumstances in which the incumbent could meet with union officials?‑‑‑Sorry, is that the clause we finished with?

PN225

No, I'll take you to that - - -?‑‑‑No, okay - yes, that was one of the clauses we considered but yes, it's not what we finished with.

PN226

Okay, and this proposal - - -?‑‑‑It does direct this in a similar direction, though - and so, for example, the prior clause could have been read to understand that Selwyn was allowed to join in with any AWU industrial action. If we were picketing somewhere, it's part of the union affairs and Alcoa should be paying for the site delegate to go and join in on that. Clearly, that's not appropriate. And so we continued to narrow it down to where we ended up.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN227

So there was negotiations on that to narrow the scope of that?‑‑‑Yes.

PN228

Because it was too broad and you agreed with that and that was the company's position?‑‑‑Yes.

PN229

Do you know why - do you know - do I take it from your evidence that the reason why this clause changed is because of that, being to make sure that the incumbent wasn't getting involved with any and all union-related matters?‑‑‑Yes, yes, I think that would be right. They - we all agreed that the - the site delegate, their role was to represent those members, from - sorry, the Alcoa AWU members. He wasn't there to represent, you know, other companies. That's what was - narrowed to.

PN230

That's in the role of the senior site delegate?‑‑‑Yes.

PN231

I'm just going to take you now to the final iteration of the clause. You should see there clause 24, is that right?‑‑‑Yes.

PN232

Okay. This clause now provides for - to meet with - I'm summarising here, the first part of the sentence - but to meet with union officials. And it says, 'As may be required as part of the representative role'. So there are some additional words that have been included further still subsequent to Mr O'Brien's email to say, 'As may be required'. Do you know why those words were included, Mr Saunders?‑‑‑Look, when we were writing that it was - again, it was just part of trying to narrow it down to him representing those members. So in whatever way that was necessary - so in the case that we're arguing here, BECM, he - when he's at BECM he's to represent the Alcoa members, as has been - as had been done for many years.

PN233

I understand the position put forward in relation to Mr King's involvement. So you would agree with me that through these three iterations of the clause - and I'm conscious that there are many - but through these three iterations of the clause the original proposal on the part of the union was that it allow the senior site delegate to participate in the affairs of the union without restriction. That changes to, 'Meet with union officials as part of their representative role', and that changes to, 'Meet with union officials as required as part of their representative role'. You agree with me on that?‑‑‑Yes.

PN234

So if it was the case that Mr King was allowed to be involved in the affairs of the union without limitation, there was a change on the introduction of the 2018 agreement to the meetings that could be conducted, wasn't there?‑‑‑Sorry you'll have to run that one again, sorry.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN235

I put it to you that there was a change in the rights of the senior site delegate between the 2014 agreement and the 2018 agreement, insofar as there was the inclusion of new restrictions on the nature of the meetings or union meetings that the senior site delegate could participate in?‑‑‑Yes, yes.

PN236

Okay, and as I understand it Mr Peter King ceased employment with the company around about October 2018, is that correct?‑‑‑No, actually, I think it was February.

PN237

2018 or - - -?‑‑‑I think - it was - so, yes, look, I do have that info. I think it was February.

PN238

Okay?‑‑‑Just for your - so you understand, we were - it turned out, we didn't realise, but were negotiating this role where actually he had left and we hadn't been told.

PN239

What I might do is I might just stop sharing this so that we can - I don't need to refer to this anymore. Just bear with me two seconds. So he finished up in his employment in around about February 2018, you believe?‑‑‑I think that's right. I'll just try and look that up, while we talk, if you like.

PN240

But he did remain as a branch executive member until around December 2019, is that correct?‑‑‑Yes, that's right - he'd been elected not long before that, I believe. Yes, under the rules he was entitled to stay in that position until his term expired.

PN241

Okay. Is it the case that being a member of the branch executive is a requirement of the senior site delegate role?‑‑‑Sorry, just - yes, he finished on 11 February 2018.

PN242

Is that his employment or when he became ill and - - -?‑‑‑Sorry, his employment - employment with Alcoa, yes.

PN243

If I go back to my question, is it the case that being a member of the branch executive is a requirement is a requirement of the senior site delegate role?‑‑‑No, I don't believe so. I don't think it would characterise it as that, no.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN244

During the time that Mr King wasn't the senior site delegate or was the branch executive, do you know how the branch executive received information in relation to AWU members employed by the respondent?‑‑‑I couldn't answer, sorry - not being on the committee, I couldn't tell you. (Indistinct) if I did - so what I'm saying is I don't know they even did.

PN245

Did you liaise with industrial officers employed by the union in Melbourne in relation to matters that affected the members at the respondent's operations?‑‑‑Yes, yes - I guess as Mr Reilly expressed there was - you know, if I was talking to - I probably would have mostly been talking with Craig (indistinct) or Lyle (indistinct) about it. He would have got information from them about whatever industrial matters were going or had happened.

PN246

Mr Saunders, did you hear the evidence of Mr Reilly, did you?‑‑‑Yes.

PN247

How did that occur? You were supposed to be excluded?‑‑‑Sorry, I hadn't been.

PN248

THE DEPUTY PRESIDENT: Sorry, (indistinct) I asked for all witnesses to be out?‑‑‑Sorry, sir, I must have missed that. No, I just sat here watching.

PN249

MR VALLENCE: Mr Saunders, was it the case that Mr Jones was with you whilst that evidence was being given as well?‑‑‑Yes, he was.

PN250

THE DEPUTY PRESIDENT: Mr Miller.

PN251

MR MILLER: Yes, Deputy President.

PN252

THE DEPUTY PRESIDENT: I rather assumed when I said witnesses were to be out they would take themselves out. I don't know what's occurred here.

PN253

MR MILLER: Yes, Deputy President, that was my understanding and I can't tell you what's happened either, I'm sorry?‑‑‑Sorry, sir, I didn't hear you direct us to leave and my computer was on. It would have been there for everyone to see.

PN254

MR VALLENCE: Your Honour, I suppose we still need to proceed but I respectfully submit that as a consequence of this sequence of events or circumstances, I should perhaps better say, I would say that weight as to the evidence of Mr Saunders and Mr Jones should be given accordingly.

PN255

THE DEPUTY PRESIDENT: Well, I think what I'll require you to do is rather than make a general submission to that effect, is point out which aspects of their evidence.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN256

MR VALLENCE: Your Honour, if I could, I'll have the opportunity to do that in closing, that would give me an opportunity to consider that.

PN257

THE DEPUTY PRESIDENT: That's fair (Indistinct).

PN258

MR VALLENCE: Thank you.

PN259

THE DEPUTY PRESIDENT: Just a moment. Well, look, this - I'm just not sure - I recall saying witnesses were required to be out. I think it was requested so I'm just not sure why that wasn't carried out. It's one of the reasons why I find online hearings less than satisfactory.

PN260

MR MILLER: I understand, Deputy President. Certainly from my perspective there was no direction whatsoever that Mr Saunders or Mr Jones remain on the line. I was purely focusing on what I needed to do myself and I omitted to turn my attention to whether they were on the line or not.

PN261

THE DEPUTY PRESIDENT: Thank you. We'll continue.

PN262

MR VALLENCE: Thank you, Your Honour. Mr Saunders, I asked you a question a moment ago about whether it was the case that being a member of the branch executive is a requirement of the senior site delegate role. You indicated that it was not. Would you agree with me that it's nice to have but it's not a requirement of the representative role?‑‑‑I guess you could characterise it that way. It's not like there's - I'm not aware of any site delegates. There's not a lot of senior site delegates in Victoria and I'm not aware of any that are not on BECM. So - but, yes, having said that, no, I can't really comment on what happens at BECM or (indistinct) because I'm just not there.

PN263

You mention in your statement that you have responsibility for the Portland area and you've explained that that's actually the broader south-west area. Do you look after industries other than the aluminium industry?‑‑‑Yes.

PN264

Is it common practice that businesses within those industries have appointed delegates?‑‑‑Yes, they do, yes.

PN265

I'm not talking about senior site delegates - - -?‑‑‑But just regular crew delegates, yes.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN266

Regular delegates, and do any or all of those delegates have a role on the executive branch?‑‑‑So from the south-west we used to have another - a lady who worked at the Department of Environment, Land - DELP, environment, lands, water, planning, I think it is - who was just a regular site delegate who is on the BECM. She's recently transferred to a different depot out of my area. But yes, she's a regular site delegate who is on BECM.

PN267

That's one example of somebody who is - am I correct in my assumption that there would be a range of other delegates who are not?‑‑‑Oh, yes, yes - I mean, we have - I couldn't tell you now many sites. You just couldn't have a delegate from all of them in a situation like that.

PN268

Okay, and as their industrial organiser, how do provide feedback to the branch executive on their activities and provide feedback to - from the executive branch?‑‑‑Well, we have regular - so the country team, that I'm part of, we have regular team meetings every month where we discuss all the ins and outs, what's going on around the state with the other organisers in our league - Patrick Wood. I'm pretty sure Patrick is on the branch committee and so he would do that, to some degree, and obviously occasionally we may be asked something from the state secretary, or industrial officer - something specific to go back.

PN269

And you're the conduit for that feedback?‑‑‑Sometimes - they may go straight to a delegate. I am sometimes, yes.

PN270

I assume you've done the trip a few times, Mr Saunders. Would you agree with me that travel to and from Melbourne from Portland would take around four hours each way?‑‑‑Yes, at least - it's horrible.

PN271

THE DEPUTY PRESIDENT: I'm just wondering - both parties are focusing on it. Why are we focusing on the merit of whether this position travels to Melbourne for these meetings or not? Aren't I just dealing with an interpretation dispute about the terms of the agreement?

PN272

MR VALLENCE: You are, your Honour, and it's a good question that you've raised. The reason why we say it's relevant is that there are pursuant to clause 24.1(v) a number of obligations that arise in respect of the respondent, the first of which - that appears in a - I suppose in the order of appearance - is one that the respondent is obliged to provide a reasonable time during working hours. We say the requirement to attend a meeting that is held in Melbourne that involves eight hours of travel return, is not a reasonable period during working hours, which as a consequence creates a right for the respondent to refuse that attendance.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN273

We say that that's a secondary argument, your Honour, in relation to whether there is a requirement as part of the representative role to participate in that meeting, in any event. But we do say that in the event that that criteria that I just mentioned is established to have been met or can be met through Mr Jones or the senior site delegate's involvement in the branch committee meetings, then there is that subsequent issue of whether there is a reasonable period of time during working hours that has been devoted to that issue. I wasn't proposing to take it much further than the amount of travel and I've already explored with Mr Reilly, the duration of the meetings for the branch executive and what is discussed and how long it takes. So I don't really need to lead anymore on it. But I just wanted to make sure it's in evidence that it's an extensive trip by road or air.

PN274

THE DEPUTY PRESIDENT: Okay, thank you?‑‑‑Maybe just to pad that out a bit, it's often closer to five hours. I mean, it is a substantial drive there and back, especially - I think there's roadworks going on, yep.

PN275

Thank you.

PN276

MR VALLENCE: Thank you, your Honour. So you haven't attended any of the branch executive meetings - - -?‑‑‑No.

PN277

Based on what I've seen of your evidence - okay?‑‑‑No.

PN278

One final matter that I'd like to talk to you about, Mr Saunders, and that matter is your views as to whether there has been a change in policy regarding attendance of the senior site delegate to the branch executive quarterly meetings. Am I correct in my understanding that there is an expectation on your part that the arrangements as applied to Mr King in that respect would continue to reply to Mr Jones beyond the introduction of a 2018 agreement and that a refusal by the company to do so is a change in policy?‑‑‑Yes, yes - it was, look, I go back to - it was never raised with us as a concern. It was understood the company knew about it, supported it, and they never raised an issue with us that this was a problem and my interpretation is that they are simply changing their policy on allowing the site delegate to do that.

PN279

Except you agreed with me before that they did impose new conditions on the requirement to attend union meetings, right?‑‑‑Yes, those conditions being that they - he was representing those members, which is what's happening.

*** ROBERT ALLAN SAUNDERS XXN MR VALLENCE

PN280

So it was a requirement of him undertaking the representative role?‑‑‑Well, what was never discussed, I suppose, is it was - it's a requirement of the branch, the BECM role. So he was elected to that position. It's a requirement of that position that he attends to represent our members down here.

PN281

So it's a requirement of the branch executive committee member role?‑‑‑Well, it's - he's required by - the members have elected him and it's an inherent part of the role.

PN282

Okay, but you said before that the - it's nice to have. You agreed with my characterisation. Let me rephrase that: that it's nice to have but not essential?‑‑‑No, so if he was not on the BECM, yes, sorry, yes. I don't believe it's essential for him to be on BECM except that if he was, it is essential for him to attend.

PN283

Because he's a branch executive member and needs to attend the meetings of the branch executive quarterly meeting?‑‑‑That's right, yes - he's been elected by membership to do that and that's what he should do.

PN284

Okay. I have no further questions, thank you.

PN285

THE DEPUTY PRESIDENT: Thank you. Anything in re-examination, please?

PN286

MR MILLER: Yes, thank you, Deputy President.

RE-EXAMINATION BY MR MILLER [11.47 AM]

PN287

Mr Saunders, just getting back to the - your recollections of the 2018 enterprise agreement negotiations, to the extent that you are involved: there was, from what you recall, no discussion about the attendance of the senior site delegate at meetings and any changes to that?‑‑‑No, no conversation about that at all.

PN288

Okay, and - - -?‑‑‑Sorry - other than - just for clarity - other than, you know, meetings outside of the scope of the usual site delegate: so representing members outside of Alcoa.

PN289

From what you recall in terms of your participation in those negotiations, there was effectively no changes in substance to the representative nature of the role other than the concerns that the company had expressed about Mr King's functioning in it?‑‑‑That's correct. Their concerns - the only concerns they expressed to me was that he was representing people outside of the agreement, so actually under different EBAs, different agreements, and that he was - they wanted him to be back on site.

*** ROBERT ALLAN SAUNDERS RXN MR MILLER

PN290

Therefore - - -?‑‑‑So - also probably perhaps to go back to answering Mr Vallence's earlier question, maybe a little more fulsomely, I think was a great word he used before - in the change from that earlier possible clause - sorry, I'm ending up in knots. Go again, apologies.

PN291

Therefore, Mr Saunders, in relation to any changes to wording - for instance, the insertion of the reference to, 'As required attendance at meetings', in clause 24, that was purely, from what you recall, to overcome the issues that the company was expressing concerning Mr King's involvement in affairs that weren't - that were beyond the scope of his role to the extent that they involved participation with contractors?‑‑‑Yes, that's right. The only thing that both sides, that I understood, Alcoa may have had a different agenda but the only agenda I understood from them or from us was to narrow his scope to just representing the Alcoa employees. That's all we're attempting to do. We believed we had achieved that. There was - as Mr Vallence said - there was a bit of massaging of clauses along the way, of potential clauses along the way, and where we've ended up at, we both sides at that point believed it had achieved what they were after and we were after.

PN292

Thank you, Mr Saunders. Thank you, Deputy President?‑‑‑Sorry, Deputy President, just before I go - I just - can I apologise again? My staying on the - online before certainly wasn't done maliciously. I've just - sorry, I've not heard that I should have left. Sorry, I just want to apologise.

PN293

THE DEPUTY PRESIDENT: All right, thank you. Thank you for your evidence. You are excused from further attendance, you may continue as an observer but if you do so, please have your camera and microphone off. I'm assuming that if we're hearing next from Mr Jones, he'll be coming into where you were just sitting?‑‑‑Yes, is that where we're going now, Mr Miller? I'll go and get him if you like.

PN294

Yes, but whilst he's giving his evidence you'll need to stay out of the room?‑‑‑Will do.

PN295

Thank you.

<THE WITNESS WITHDREW [11.51 AM]

PN296

THE DEPUTY PRESIDENT: Good morning, Mr Saunders.

PN297

MR JONES: Deputy President, Mr Saunders has left the room.

*** ROBERT ALLAN SAUNDERS RXN MR MILLER

PN298

THE DEPUTY PRESIDENT: Sorry, the screen is saying Mr Saunders. I beg your pardon - Mr Jones, good morning.

PN299

MR JONES: Good morning.

PN300

THE DEPUTY PRESIDENT: The Commission is now going to hear your evidence. The first thing that will occur is that my associate will take an affirmation from you. Mr Miller will then deal with your evidence in chief and your witness statement and then Mr Vallence will have some questions for you in cross-examination. So if you could just listen to my associate now and an affirmation will be taken from you, thank you.

PN301

THE ASSOCIATE: Mr Jones, please state your full name and address.

PN302

MR JONES: Selwyn Dirk Jones, (address supplied).

<SELWYN DIRK JONES, AFFIRMED [11.53 AM]

EXAMINATION-IN-CHIEF BY MR MILLER [11.53 AM]

PN303

THE DEPUTY PRESIDENT: Thank you, Mr Miller.

PN304

MR MILLER: Mr Jones, could you please again confirm your full name and address?‑‑‑Selwyn Dirk Jones, (address supplied).

PN305

You confirm that this is your statement that you're willing to have it admitted into evidence?‑‑‑Yes, I do.

PN306

You can confirm that your statement is true and correct in every particular?‑‑‑I can confirm that.

PN307

Thank you, Mr Jones. Mr Jones, if I could please refer you to paragraph 15 of your statement, if you have it handy there.

PN308

THE DEPUTY PRESIDENT: I'll just receive it into evidence first. Mr Vallence, any objection, subject to matters you want to raise in cross-examination?

PN309

MR VALLENCE: No, thank you, Your Honour.

*** SELWYN DIRK JONES XN MR MILLER

PN310

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Mr Selwyn Jones, which appears at page 23 of the court book, and comprises 39 paragraphs, dated 14 June, as exhibit A3.

EXHIBIT #A3 WITNESS STATEMENT OF SELWYN JONES DATED 14/06/2022

PN311

THE DEPUTY PRESIDENT: Yes, Mr Miller.

PN312

MR MILLER: Thank you, Deputy President. Mr Jones, if I could refer you to paragraph 15 of your statement, if you have that at hand?‑‑‑Yes.

PN313

You refer to the position of senior site delegate existing and being filled throughout the course of your employment at Portland Aluminium. What duties has the senior site delegate performed over that time?‑‑‑Okay, well, a broad range. So prior to my appointment, Peter King was the branch executive president. He attended national conferences and different industry conferences. I'm aware that he went to Alcoa America head office in Pittsburgh to plead for our plant to remain open. He's been involved in a lot of redundancy discussions and outcomes. He was on numerous committees, especially when we had the Point Henry operation and Anglesea operation in Victoria. He did travel a lot on committees that Alcoa had for different canteen uniform committees, all manner of different committees. But he certainly was involved in income protection, WorkCover, assistance to our members, both financially and welfare and of course the enterprise agreement negotiations and the general day-to-day representation of employees in disputes and resolutions of different matters.

PN314

Thank you, Mr Jones. You mention in paragraph 17 of your statement that - you've got that handy - that - - -?‑‑‑Yes.

PN315

- - - the workforce overwhelmingly rejected a proposal to have the senior site delegate position moved to a rotating day/night shift basis. What in your view were the reasons for that?‑‑‑We're a 24-hour operation, seven days a week, and we have four crews. When I assumed the position of the acting site delegate - I was elected as the deputy site delegate - and when Peter King went on income protection, when he was off on a personal illness, I was trying to service the role working on A crew and it was - the workforce was well aware just how much of a challenge - it was doing the service, the role any service at all. I was working my 12-hour shift and finishing at 8 o'clock in the morning, getting home around midday after trying to assist numerous people and getting a limited amount of sleep to start returning phone calls around 4 in the afternoon before having to go to work again at 8 o'clock that night. So certainly it was just dysfunctional as far as just trying to service all four crews working on the one crew.

*** SELWYN DIRK JONES XN MR MILLER

PN316

I understand. Mr Jones, you refer in paragraph 24 - (iv) or 4 - of your statement to your attendance at the December 2021 BECM or branch executive meeting at which you were approved to attend by the company?‑‑‑Yes.

PN317

Do you recall participating in that meeting?‑‑‑Yes, I do.

PN318

Yes, and did you in particular raise any matters for discussion at that meeting?‑‑‑Absolutely - several.

PN319

Yes, what were those matters?‑‑‑Certainly we at the BECM meeting have different reports and different industrial officers so it was certainly quite topical to (indistinct) was around the mandates, around the vaccinations, and I certainly had numerous situations with my members around both the - some resistance to the mandates, being vaccinated. We had situation around adverse reaction. We had a member that had an adverse reaction to being forced to be vaccinated and the - I needed certainly advice and - around a WorkCover claim, potentially, for that adverse reaction that person was forced to take the vaccination. Lots of discussion around superannuation and the superannuation guarantee and certainly for my membership, the energy prices. So the power and gas has been quite the concern for Portland and seeking advice and information from AWU officials around where - what's the progression or the outcomes of that. I did recall raising issues around our community issues, around the local windfarm and the downturn in (indistinct) with those guys being made redundant and - but importantly, around the enterprise agreement or the outcome that we had with our enterprise agreement and relevance to CPI for me as well as - while the meeting might go for three or four hours, the opportunity to network with both AWU officials and other AWU site delegates is pretty important. It's more than just the meeting, it's the - what happens after the meeting, around the discussions and while I'm down there I certainly - with Percy Pallay, the health and safety officer, talking to him for advice, and that could be Patrick Wood or a training officer in (indistinct) around the quality and quantity of training that is available to us for our Portland members and that Portland training dates and things like that. So there's lots of different - I would have raised lots of different points through those meetings.

PN320

Mr Jones, would it be accurate to say that at that meeting in December 2021 the issues that you raised at that meeting related to the workforce at the respondent and also were of concern to them?‑‑‑Absolutely, yes.

PN321

Mr Jones, if I could take you to paragraph 29 of your statement?‑‑‑Yes.

PN322

You've got that there?‑‑‑Yes, I have.

*** SELWYN DIRK JONES XN MR MILLER

PN323

You mention there that Ms Alexander had refused on multiple occasions to allow you to perform specific duties as the senior site delegate. What duties were they?‑‑‑Put me around the income protection, WorkCover assistance that I provide to in excess of 350 members. We are an aging workforce. We've got some people with personal illness and we have WorkCover clients as well, so giving them assistance and importantly, what I refer to in my statement, had a member in Warrnambool, which is probably over an hour away - we've had numerous employees that live in other communities and unfortunately some of those - one in Hamilton, one in Warrnambool - are injured and they need not only assistance with their - at the time with the WorkCover and income protection claim but, yes, a welfare check. They are out of the loop and one in particular was struggling and had resistance, saying that wasn't within the scope of representing the members. So that's what I refer to there and of course, subsequent, the - for the next BECM meeting, sorry, there was the refusal and I had to take annual leave. So that's the reference there.

PN324

In relation to the reasons that were given, were there reasons given and if so, what were they?‑‑‑That it does not - it's not within the scope of the enterprise agreement.

PN325

Okay. Mr Jones, you mention in paragraph 37 of your statement, if you'll refer to that - - -?‑‑‑Yes.

PN326

- - - that you would be less inclined to assist and represent members if you, as the senior site delegate, were no longer permitted to attend BECM or branch executive meetings during work hours. If you weren't able to attend those meetings, what other avenues would be available to the Alcoa workforce, to have their issues represented within the union and in particular, it's senior leadership?‑‑‑Well, to the first part of your question was - can you just repeat the first part of that question, please, Mr Miller?

PN327

Sure, sure - if you weren't able to attend those meetings, what other avenues would be available to the Alcoa workforce to have their issues represented within the union broadly?‑‑‑Well, just on that, it's been - I'm being directed to utilise my annual leave to attend these meetings and I get less annual leave as a day worker as per the enterprise agreement. I only get four weeks' annual leave instead of five weeks, as I would as a shift worker. So I would - you know, that leave for me is for my recreation rather than to utilise for my actual employment and my role as the senior site delegate. So that is a big challenge for me, that expectation, having to use my annual leave. The second part of your question, I believe - could you repeat that, around - what avenues, did you say?

*** SELWYN DIRK JONES XN MR MILLER

PN328

Yes, that's right - what other avenues would be available to the Alcoa workforce to have their issues represented within the union and secondly, the union's senior leadership in particular?‑‑‑They would probably have that expectation, where they'd be emailing or trying to ring Ben Davis or Percy Pallay or any of the other industrial officers down there as individuals. I am the senior site delegate. I represent the Portland members and it's my responsibility to seek that information and follow up on their concerns on their behalf.

PN329

So if you're then removed from those meetings or unable to attend, for whatever reason, the ability therefore of that role to represent the membership there and the workforce more broadly, putting your view, be reduced?‑‑‑Yes, that's true, I agree.

PN330

MR VALLENCE: Your Honour, I'm conscious - I haven't raised too much of an objection at this point, noting of course that there is a whole lot of new evidence in chief that is being led here that we haven't had the opportunity to consider before but in particular in relation to that last question. Everything but the answer was served up, your Honour. It was a very leading question. We object (indistinct).

PN331

THE DEPUTY PRESIDENT: I understand, and I've raised this before. It tends to dilute the weight of the answer. I mean, the question can simply be put, 'What would the effect of that be', not what Mr Miller thinks the effect of that would be and seeking Mr Saunders' agreement with the proposition. So it rather impacts on the force of the testimony if the witness is being spoon-fed.

PN332

MR MILLER: I understand, Deputy President. No further questions, thank you.

PN333

THE DEPUTY PRESIDENT: Thank you. Mr Vallence, do you have any questions, please, for Mr Jones?

PN334

MR VALLENCE: I do indeed, your Honour, thank you.

CROSS-EXAMINATION BY MR VALLENCE [12.09 PM]

PN335

Mr Jones, do you have a copy of your witness statement there?‑‑‑I do.

PN336

Okay - at paragraph 8 you refer to a range of duties that you perform in the stores?‑‑‑Yes.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN337

Can I ask when you undertake tasks associated with the senior site delegate role, who picks up those tasks that you normally perform?‑‑‑My colleagues - there's another four or five people there that are full-time store employees.

PN338

Is there work that's left undone until your return? Is there some work that's held over?‑‑‑Not really, Mr Vallence - I do very basic duties within the store.

PN339

Okay. At paragraphs 15 to 20 of your statement you speak about how the clauses related to the senior site delegate role changed through the 2014, 2018 and 2021 agreement?‑‑‑You're referring to my statement, clause 15?

PN340

Yes, paragraphs 15 to 20?‑‑‑Yes.

PN341

And ultimately at paragraph 20 you say that the senior site delegate clause wasn't changed between the 2014 and 2018 agreements and then unchanged again in the 2021 agreement. Is that what I understand your statement to say?‑‑‑Certainly as far as the 2014 agreement - I wasn't involved in that negotiation but I believe the 2018 to 2021, I was involved in those negotiations - or the second half of the 2018 agreement, in fairness.

PN342

But you make an observation that the clause was unchanged. I'm assuming that you've made an error because the clause changed considerably between 2014 and 2018, didn't it?‑‑‑Mr Vallence, I believe the clause of 2014 had said that the site delegate position remained unchanged so that would be a fair statement to say that the - certainly the 2018 agreement was a major change from that.

PN343

Okay?‑‑‑I will - that was an honest mistake.

PN344

I just want to make sure that we're clear about what your evidence is. In relation to the 2014 agreement, do you know what those arrangements were, the current arrangements (indistinct)?‑‑‑Ongoing - it was an ongoing agreement that the clause would remain the same or that position would remain the same, in fairness.

PN345

Okay, perhaps I could be a bit more specific: the 2014 agreement contemplated the continuation of current arrangements for the senior site delegate role. You agree with that?‑‑‑Well, I recall that to be the case, yes.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN346

Do you know what the actual arrangements in a practical sense were, that were in place and that Mr King operated to?‑‑‑Yes, I was a crew delegate and health and safety rep during that time. I was aware of Mr King's role and how he serviced that role.

PN347

Okay, and at that point in time the senior site delegate role was a full-time, paid senior site delegate? There was no operational duties?‑‑‑That's correct.

PN348

And Mr King in that role was permitted to undertake union-related tasks?‑‑‑Correct, yes.

PN349

I think you mentioned in your earlier evidence that he was involved in a range of committees?‑‑‑Correct.

PN350

And as part of his role in - he undertook activities related to the representation of employees on site, that were members of the AWU?‑‑‑Correct.

PN351

And did he have an ability to attend to the affairs of the union?‑‑‑Yes.

PN352

And it was also the case that he was based at the AWU office in Portland rather than on site, is that correct?‑‑‑That's - that is correct, he - very little time on the Portland smelter site.

PN353

Are you aware of any restrictions on the functions that the senior site delegate could undertake?‑‑‑I believe there was no restrictions on Peter King in that role.

PN354

The company did negotiate to change the arrangements as part of the 2018 agreement, didn't it?‑‑‑Yes, that's correct.

PN355

For example, under the 2018 agreement the senior site delegate role was no longer a full-time delegate role. Is that correct?‑‑‑As I believed it, the primary - the site delegate, senior site delegate, the primary role was the site delegate and there was a secondary role as an operator.

PN356

That wasn't my question, though, Mr Jones. The question was it was no longer a full-time union delegate role, was it?‑‑‑That's correct.

PN357

Instead the senior site delegate role would be allocated to a suitable role to perform work set by the supervisor?‑‑‑That's correct.

PN358

Mr Hurst is your supervisor, as I understand it?‑‑‑Correct.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN359

Through those negotiations, there was a clause included that required the company to permit the senior site delegate to meet with members pertaining to the agreement, accompanying union officials as required as part of the representative role. Do you recall that?‑‑‑That's correct.

PN360

Okay. You are the elected senior site delegate, as I understand it?‑‑‑Yes, Mr Vallence, that's correct.

PN361

You're also an elected executive branch member of the AWU?‑‑‑Correct.

PN362

Tell me, in those two different roles, how is your role as an executive branch member different to the senior site delegate role?‑‑‑Can you expand on that question?

PN363

So you have a role as an executive branch member?‑‑‑Yes, I do.

PN364

What is your responsibilities as an executive branch member?‑‑‑In my involvement in the Victorian branch executive is to discuss and - policies and campaigns and issues around the AWU membership.

PN365

So it deals with the operation of the union broadly?‑‑‑Yes.

PN366

For example, I think you gave evidence before that one of the matters that you raised related to redundancies at a wind farm?‑‑‑Not correct - at the manufacturing company in our community that makes the wind towers, yes.

PN367

Sorry, my mistake - I understood it was a wind farm?‑‑‑Mr Vallence, that's relevant because Portland Aluminium supported me to go to Canberra to campaign for those members.

PN368

I'll ask you about that in a little while. So you're on the executive branch and that has a responsibility or your functions as part of that are to assist with the operation of the Victorian branch of the AWU. As the site senior delegate, you undertake a representational role for members of the AWU employed by the respondent, correct?‑‑‑Correct.

PN369

I'm assuming that holding both positions provides you with opportunities to support the members you represent?‑‑‑Yes.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN370

Is it a necessary requirement of the senior site delegate role to be a member of the branch executive?‑‑‑Not necessary but it's very advantageous to both Portland Aluminium and the AWU members that I represent at Portland.

PN371

So it's nice to have?‑‑‑It's a win-win.

PN372

Now, it's not necessary for you to be a member of the branch executive to bring matters to the attention of the union, is it?‑‑‑Not necessary, but that - a huge advantage. I represent in excess of 350 members, Mr Vallence.

PN373

For example, you weren't on the branch executive in December 2017, when you were appointed to the acting senior site delegate role?‑‑‑No, that's correct.

PN374

Mr King held - the former senior site delegate - held the branch executive role until around - between December 2020, is that correct?‑‑‑I think that's accurate, yes. He was the branch president.

PN375

Okay, and it's correct that Mr King's employment with the respondent ended in around - I think the evidence of Mr Saunders was around February 2018?‑‑‑Look, it's very vague, when Mr King left the employment of Portland Aluminium but that is - that is probably ball park, Mr Vallence, yes.

PN376

You were elected to the senior site delegate role in October 2018, is that right?‑‑‑I would have to check my statement but yes, that - to me that sounds correct.

PN377

But suffice to say in 2018, if we refer to that timeframe broadly, Mr King leaves the employment some time of the respondent and you at some time commence in the senior site delegate role, is that correct?‑‑‑That's right, yes.

PN378

Okay, and Mr King remains in the branch executive role until December 2020 or thereabouts, and you take over from February 2021, is that - is my understanding correct?‑‑‑Yes, it is.

PN379

Do you know whether Mr King was active in the branch executive role whilst he was doing that when you were the senior site delegate?‑‑‑Yes, he was the president of the branch executive.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN380

During that time, between 2018 and 2020, what did you do to work with union officials to obtain support and undertake your role as a senior site delegate?‑‑‑Phones, email reached out to different branch or different AWU officials on a variety of different matters.

PN381

Tell me, did Mr Saunders help you out as part of his role as an industrial organiser?‑‑‑Mr Saunders does help me out from time to time, yes.

PN382

So you were able to obtain support during that time to undertake your role as a representative of the AWU members employed by the respondent?‑‑‑Specifically, Mr Vallence, are you asking me support from Mr Saunders or collectively from the AWU?

PN383

From the AWU collectively as well?‑‑‑Yes, yep.

PN384

Okay. Mr Jones, you mentioned in your evidence in chief that the meetings of the branch executive go for approximately three to four hours. The evidence of Mr Reilly - which I understand you heard - was that they take between one and two hours. Can you explain why your view is different?‑‑‑Yes, I actually take advantage of the - my visit to Melbourne and will speak directly to the different officers of the AWU in Melbourne.

PN385

Okay, so what you're saying is that the meetings themselves - sorry. I put it to you then on that basis the meetings take between one and two hours but you stay around before or afterwards to - for another one to two hours to be able to liaise with other people who are there as well?‑‑‑Correct.

PN386

Would you agree with me that the travel to and from Melbourne from Portland would take around about four hours each way?‑‑‑Not for me - I - it's closer - it's over five.

PN387

Over five - so around a 10-hour round trip?‑‑‑Minimum.

PN388

The branch executive meetings are conducted on a single day?‑‑‑Yes.

PN389

In relation to the matters that are discussed, you raised a range of matters that had been, in your view, discussed as part of those processes?‑‑‑Yes.

PN390

Vaccination mandates, superannuation guarantee, seeking advice in relation to energy prices and also dealing with community issues. You're in attendance at that meeting as the branch executive member, is that right?‑‑‑That's correct.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN391

You have the opportunity to speak during the course of that meeting as someone who has some intimate knowledge of the circumstances that are also facing AWU members at the Portland smelter?‑‑‑Without breaking any confidences, yes, I do.

PN392

I'm not going ask to exactly what you're talking about. So you take that opportunity to use that experience to contribute to your contribution as a branch executive member?‑‑‑Yes, some of the challenges that we face at Portland are being faced by all manner of different industries and operations.

PN393

The evidence of Mr Reilly was that in his experience, the time spent discussing potentially issues related to AWU members employed by the respondent, estimated about 10 to 25 minutes per meeting. Would you agree with that?‑‑‑No. Can you repeat the question, Mr Vallence?

PN394

Yes, sure - the evidence of Mr Reilly was that the time spent talking about matters related to Alcoa Portland ranged between 10 to 25 minutes. Would you agree with that?‑‑‑It varies.

PN395

Ballpark, is it in that vicinity?‑‑‑It's in the vicinity.

PN396

As I understand it you've participated in a number of branch executive meetings in 2021 through the use of Microsoft Teams technology or other online medium?‑‑‑Correct - I believe over Zoom.

PN397

Okay, would you agree with me that you could still participate in executive branch meetings via Zoom?‑‑‑It has it's challenges, like we're facing today. It certainly has for me - yes, I'm not overly tech savvy. I do face some challenges with virtual meetings.

PN398

But you would agree with me that at the very least the difference between the two propositions - if I can put it this way - is for you to attend the meeting, in person, and attend to all of the branch executive management matters that arise during the meeting, you're seeking two days to 2.5 days per occasion. Is that correct?‑‑‑I would potentially for a Tuesday meeting would leave around lunchtime Monday and hope to get - be at my toolbox meeting first thing the next day, on the Wednesday following the meeting, so potentially a day and a half is what I'm seeking. If the meeting went longer, Mr Vallence, I would - I would ask and require a 10-day break from my arrival at my house. I would ask that I would get some recovery and attend work 10 hours after my arrival at my house.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN399

You didn't ask for one and a half days, though, did you? (Indistinct) I believe it was two and a half days, wasn't it?‑‑‑For the Christmas meeting, that was correct.

PN400

(Indistinct) the 1 December 2021 letter from Mr Davison asked for two days and you were granted two days for December, is that correct?‑‑‑I was granted two days for the December meeting but that was to be reviewed by Ms Alexander going forward.

PN401

Sorry, (indistinct) - I understood that the - (indistinct) the March meeting that you proposed to attend, you were seeking two and a half days (indistinct)?‑‑‑It's a worst-case scenario.

PN402

Okay. Did you ever make clear to the business that you were looking for one and a half days?‑‑‑The business knows that I don't take any liberties and jeopardise this role, so I would not expend any time unnecessarily, Mr Vallence.

PN403

So you assumed that the business would know that you would come back once you've finished the work associated with the executive branch meeting?‑‑‑Mr Vallence, I believe the business would be confident that I would arrive back at work at my earliest convenience.

PN404

So to go back the point that I was making, we're looking at anywhere between one and a half and two and a half days to attend that meeting in Melbourne, correct?‑‑‑Again, Mr Vallence, I would - the meetings are usually on a Tuesday. I would leave lunchtime Monday and be back at 7.30 at work on the Wednesday, would be my goal.

PN405

So your evidence is - you've said that it depends on when the meeting finishes - - -?‑‑‑(Indistinct) the difference between what I was seeking, applying for, and utilising.

PN406

Okay, so let's even use one and a half days, being what you've suggested is what you hope to achieve, okay?‑‑‑Yes.

PN407

For your involvement in that - that would involve you being absent from the workplace for a day and a half of paid working time. If you were to participate by Zoom, to address the matters that relate specifically to those issues affecting your AWU members at the Portland Aluminium site, you said that would be in the ballpark, 10 to 25 minutes per occasion. Can you see the difference in the amount of time - - -?‑‑‑Sorry, (indistinct) your reference to 10 to 25 minutes per occasion was specifically, exclusively to Portland Aluminium.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN408

That's what I'm saying?‑‑‑The meetings go for at least two hours.

PN409

Okay, and in those two - - -?‑‑‑The virtual meetings, Mr Vallence, were for COVID logistics.

PN410

Mr Jones, the remainder of the two-hour meeting is spent dealing with matters other than Portland Aluminium, is that correct, as part of the branch executive?‑‑‑That is correct but relevant to Portland Aluminium because it's - we're looking at best practice or other location issues are relevant to us.

PN411

Such as the production of winds turbine equipment?‑‑‑That was - I was sponsored to go to Canberra by Portland Aluminium on behalf of our community.

PN412

We'll talk to them. Okay, so would you agree with me that insofar as the discussions don't relate to Portland Aluminium specifically, you're there in your capacity as the executive branch member?‑‑‑Repeat the question again, Mr Vallence, please?

PN413

Actually, I'll withdraw the question, Mr Jones. As part of the negotiations for the 2018 agreement, the company didn't agree to the senior site delegate undertaking duties that related to the affairs of the union generally, did it?‑‑‑No, they - that is correct.

PN414

At paragraph 27 of your statement, on page 26 of the digital court book - - -?‑‑‑What was the second reference there?

PN415

There's a digital court book. I'm not sure that you have it available to you, Mr Jones. Do you have a copy of your witness statement there?‑‑‑I do.

PN416

So at paragraph 27 you stated that you are permitted to attend branch executive meetings?‑‑‑Mr Vallence, I never sought permission. I have a relationship with my management group that - I participate in union business and I seek permission for when I leave my department, for those appointments and meetings with the membership. These meetings were conducted within the office that Portland Aluminium provided me and, yes, I don't seek nor is it asked who I'm speaking to or who I'm communicating with via email or any other.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN417

So at paragraph 27 of your written statement, when you say: 'I was permitted to attend these meetings during working hours', what did you mean?‑‑‑There was no restriction on who I - I have a level of trust between myself and Russell Hurst and that he doesn't ask who I'm on virtual meetings with. So again, the - he understands that that is part of my role.

PN418

Okay, so he didn't know you were in in branch executive meetings?‑‑‑Not specifically, no.

PN419

Did he even know that you were on the branch executive? Did you tell him that?‑‑‑I may have. I did not feel the need to tell Russell Hurst that I was - I may have. I'm not sure whether he realises or not.

PN420

Okay?‑‑‑Certainly does now.

PN421

And do I understand that earlier you gave evidence that Ms Alexander made clear to you that she was approving your attendance to the branch executive meeting for December of 2021, that that was subject to further review? That wasn't an ongoing commitment?‑‑‑Correct.

PN422

Now, Mr Jones, can I ask you to turn to paragraph 24 of your witness statement?‑‑‑Yep.

PN423

And you note that there that you (indistinct) the number of meetings that were relevant?‑‑‑Yes.

PN424

You say to approach the company, talk to allow you to undertake various activities as a representative of the employees of the Portland Aluminium smelter?‑‑‑Allowed and encouraged - I was before a lot of these conferences and meetings, I was asked to attend with Mark Reilly, as far as an update of where the business was and so that I could go to these meetings with some knowledge around where the business stood.

PN425

Okay, and you say about paragraph 4 of your statement that those meetings occurred pursuant to the 2018 agreement, is that right?‑‑‑You're talking 24(iv), Mr Vallence?

PN426

Just (i) at the moment - so the meeting with Mr Davis is the one I'm talking about?‑‑‑Yes.

PN427

That occurred on 8 October, do you agree with that? That's what your statement says?‑‑‑To the best of my knowledge, yes.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN428

Do you know what date that the 2018 agreement came into effect?‑‑‑About 22 October.

PN429

So that meeting occurred before the commencement of the 2018 agreement, is that right?‑‑‑That meeting with Ben Davis was when I was appointed and elected as the senior site delegate. It was an election, Mr Vallence, I went from the acting site delegate to the senior site delegate.

PN430

But the terms of the 2014 agreement applied to that at that point in time, didn't it, not the 2018 terms?‑‑‑Yes.

PN431

You refer there to - at (ii) - your attendance at the AWU's national conference between 7 April and 10 April 2019?‑‑‑Yes.

PN432

If I put it to you that that was approved on the basis that it was classed as trade union training leave, what would you say to that?‑‑‑No, I disagree with that.

PN433

Okay?‑‑‑I get allocated one day a year for trade union training leave, Mr Vallence.

PN434

Your Honour, I might - you don't have a copy of the digital court book, do you, Mr Jones?‑‑‑No, I do not.

PN435

Okay. Your Honour, I might just share the digital court book again, if I may?

PN436

THE DEPUTY PRESIDENT: Yes.

PN437

MR VALLENCE: Can you see that, Mr Jones?‑‑‑I'm seeing the enterprise agreement.

PN438

Yes, so I'm just taking you to a page - okay. You see that email there from Mr Pethybridge to Mr Gallagher, Mr Symonds, and others who are cc'd?‑‑‑Yes.

PN439

Can you see that that relates to your attendance at the AWU national conference?‑‑‑Yes, I do.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN440

Can you see that it's been considered and approved in the context of the trade union training provisions of the agreement?‑‑‑That looks like what Mr Pethybridge has put to his fellow management group. For clarity Mr David Thomas, he did not go to that meeting. He was required to access his annual leave to attend, which he declined.

PN441

THE DEPUTY PRESIDENT: Sorry, what page is that on of the court book?

PN442

MR VALLENCE: Sorry, your Honour - page 179.

PN443

THE DEPUTY PRESIDENT: Thank you.

PN444

MR VALLENCE: Apologies, your Honour. Now, Mr Jones, the next occasion you mention is the representation of Portland Aluminium in meetings and functions at Parliament House?‑‑‑Yes. Sorry, that was - represent Portland Aluminium, in meetings and functions at Parliament House, Canberra, yes.

PN445

So that was to, as I understand it, represent the interests of AWU members employed by the respondent to Parliamentarians, to - - -?‑‑‑That's - that's - Mr Vallence, that - that delegation was booked prior to us securing a power of agreement. Members of (indistinct) Shire had been to Canberra the week prior. We had a very positive outcome which was announced on the Monday and I believe I left on the next day to Canberra. So I went to Mr Pethybridge and asked him - this was the day of their power announcement. I stood beside him while our Prime Minister announced that we'd achieved a power deal. I said to him that, you know, I would assume that the company wouldn't send me to Canberra on behalf of a - negotiate or pleading for a favourable power deal. His response, I recall, was that for the - on behalf of the community he wanted me to participate in on behalf of the (indistinct) employees to secure some wind tower contracts for our community. So that was the verbal discussion that I had with Mr Pethybridge, the morning of the announcement of the power deal.

PN446

And the fourth matter is one we've discussed, which is the attendance at the branch executive meeting in December, which was approved conditionally on the basis that that arrangement would be approved?‑‑‑Correct. I was under - I had no meetings around the review.

*** SELWYN DIRK JONES XXN MR VALLENCE

PN447

I put it to you in those circumstances - sorry, let me go back a step: so of the examples you provided, only one was related to the senior site delegate clause, which was the attendance at Parliament. The first was in relation to a matter that occurred prior to the 2018 agreement, the attendance at the meeting with Mr Davis. The second related to training leave. The third related to - - -?‑‑‑No, no, I disagree, Mr Vallence. The attendance to the national conference was not trade union training leave. It may have looked like Mr Pethybridge made that reference but that wasn't.

PN448

Would you agree with me it was on that basis that Mr Pethybridge approved it?‑‑‑It seems to be that was the reference that he shared with his colleagues.

PN449

Aside from the references to those instances that you referred to at paragraph 24, it's correct to say that there hasn't been any evidence that you've provided, of written or other policy, confirming an expectation or confirming the continued arrangements of being able to undertake the activities undertaken by Mr King, correct?‑‑‑Again, repeat the question, please, Mr Vallence? It's unclear.

PN450

It's correct that - perhaps I can ask you in a different way. Is there any other evidence in your witness statement that demonstrates the existence of a policy that continued beyond 2014 to 2018 and '21 agreements related to attendance at the executive branch meetings?‑‑‑Look, I'm not sure what you mean there. Mr (indistinct) and I have different roles within the branch executive.

PN451

My question for you is where do you say there is a policy that permits your attendance at the executive branch meetings?‑‑‑So that policy, I believe is in the enterprise agreement but we have - the operators have for me to meet with union officials.

PN452

Okay, so it's the enterprise agreement terms that you refer to when you refer to policy?‑‑‑Yes, it is.

PN453

Thank you. No further questions, your Honour.

PN454

THE DEPUTY PRESIDENT: Thank you. Anything in re-examination, please?

PN455

MR MILLER: Yes, thank you, Deputy President.

RE-EXAMINATION BY MR MILLER [12.45 PM]

PN456

Mr Jones, Mr Vallence was asking you before about the amount of time that was being sought and which was then subsequently granted in relation to your attendance at the December 2021 branch executive meeting. There was obviously discussion between you about exactly what was sought and what was given. Had Portland Aluminium granted you one and a half days to attend the branch executive meeting, would that have been adequate for you?‑‑‑For that meeting, no - there was an extension to the meeting on that afternoon.

*** SELWYN DIRK JONES RXN MR MILLER

PN457

Right, which required further involvement from you?‑‑‑Yes, there was.

PN458

Just in relation to the questions that Mr Vallence was asking you concerning the policies and what written or verbal policies may have been in place concerning employees: what was your understanding of policies in relation to the senior site delegate role? What was in place?‑‑‑Prior to my appointment?

PN459

Yes?‑‑‑It was in writing, in the enterprise agreement, that the role remained the same.

PN460

From you coming into the role, that policy continued?‑‑‑No, the 2018 agreement went into detail around the role of the senior site delegate.

PN461

Thank you, Mr Jones - no further questions.

PN462

THE DEPUTY PRESIDENT: Thank you. Mr Jones, thank you for your evidence. You're excused from further attendance but you may of course remain present as an observer to the balance of the proceedings. I'd just ask that if you do so your camera and microphones remain off, please.

<THE WITNESS WITHDREW [12.47 PM]

PN463

At this point, Mr Miller, does that complete the evidentiary case for the AWU?

PN464

MR MILLER: Yes, it does, Deputy President.

PN465

THE DEPUTY PRESIDENT: At this point we'll take an adjournment for lunch. We will resume at 2.15 pm, please, noting we've got two witnesses, Ms Alexander and Mr Gleeson, and my intention would be at the completion of the evidentiary material from the respondent, that we move into the final oral submissions so that we complete the proceedings today. So if the parties could just prepare on that basis, please. Thank you, we'll adjourn until 2.15.

PN466

MR VALLENCE: Thank you, your Honour.

LUNCHEON ADJOURNMENT [12.48 PM]

RESUMED [2.17 PM]

*** SELWYN DIRK JONES RXN MR MILLER

PN467

THE DEPUTY PRESIDENT: Thank you, everyone. Mr VALLENCE, would you like to commence with the evidentiary case for the respondent, or I presume the evidentiary case, since we've already received Mr Hurst's statement. Thank you.

PN468

MR VALLENCE: Yes, and thank you very much, your Honour, for facilitating that so that he can attend his personal appointment. I'd seek to call Mr Gleeson, please.

PN469

THE DEPUTY PRESIDENT: Thank you.

PN470

MR VALLENCE: Mr Gleeson, if you're there, if you could turn on your camera and microphone, please.

PN471

MR GLEESON: Yes. But your Honour, I actually can't. I can hear everybody but – my computer camera is fine but when I clicked on the link I got a message telling me that the camera was not available.

PN472

THE DEPUTY PRESIDENT: All right - - -

PN473

MR VALLENCE: Maybe we need to just try again.

PN474

THE DEPUTY PRESIDENT: Okay. I can't explain that, but in the circumstances we'll just proceed with the audio, I think. So, Mr Gleeson, my Associate will take an affirmation from you now, and then Mr VALLENCE will deal with your evidence-in-chief, then Mr Miller who is representing the AWU or advocating for the AWU, will conduct cross-examination, so if you could just listen to my Associate now for the taking of the affirmation, thank you.

PN475

THE ASSOCIATE: Mr Gleeson, please state your full name and address.

PN476

MR GLEESON: Matthew Craig Gleeson, care of Alcoa of Australia, on the corner of Marmion and Davy Streets, Booragoon, Western Australia.

<MATTHEW CRAIG GLEESON, AFFIRMED [2.18 PM]

EXAMINATION-IN-CHIEF BY MR VALLENCE [2.18 PM]

PN477

THE DEPUTY PRESIDENT: Thank you, Mr VALLENCE.

*** MATTHEW CRAIG GLEESON XN MR VALLENCE

PN478

MR VALLENCE: Thank you, your Honour. Mr Gleeson, can you please state your name and address for the Tribunal?‑‑‑Matthew Craig Gleeson, c/- Alcoa of Australia, corner of Marmion and Davy Streets, Booragoon, Western Australia.

PN479

Could you please tell us your position with the respondent?‑‑‑I'm Human Resources Director for Alcoa in Australia.

PN480

Have you prepared a witness statement in relation to this matter?‑‑‑Yes.

PN481

Do you have a copy of the digital court book with you today?‑‑‑Yes.

PN482

Could I ask you to turn to page 72 of that digital court book?‑‑‑Yes, I have it in front of me.

PN483

That's the first page of a witness statement that is nine pages long, contains 46 paragraphs and 16 attachments, and appears to have been signed by you on 28 June 2022. Is that a copy of your witness statement?‑‑‑Yes.

PN484

Is it your belief that that witness statement is true and accurate?‑‑‑Yes.

PN485

I seek to tender that witness statement, your Honour.

PN486

THE DEPUTY PRESIDENT: Thank you. Mr Miller, you'll have the opportunity to cross-examine but is there any objection to the receipt of this witness statement?

PN487

MR MILLER: No, there isn't, Deputy President.

PN488

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Mr Matthew Gleeson which appears at page 72 of the digital court book, and comprising 46 paragraphs with 16 attachments, signed and dated 28 June 2022, as exhibit R2.

EXHIBIT #R2 STATEMENT OF MATTHEW GLEESON COMPRISING 46 PARAGRAPHS AND APPEARING AT PAGE 72 OF THE COURT BOOK, SIGNED AND DATED 28/06/2022, WITH 16 ATTACHMENTS

*** MATTHEW CRAIG GLEESON XN MR VALLENCE

PN489

Thank you. Anything additional, Mr VALLENCE?

PN490

MR VALLENCE: No further questions, thank you, your Honour.

PN491

THE DEPUTY PRESIDENT: Thank you. Mr Gleeson, at this point Mr Miller will have the opportunity to cross-examine you, so if you could just listen carefully to his questions now, thank you?‑‑‑Sure.

CROSS-EXAMINATION BY MR MILLER [2.21 PM]

PN492

MR MILLER: Thank you, Deputy President. Mr Gleeson, could I refer you please to paragraph 9 of your statement. Do you have your statement handy there?‑‑‑Yes, paragraph 9, was it?

PN493

That's right?‑‑‑Yes.

PN494

You've got that in front of you?‑‑‑Yes, I do.

PN495

Yes. I notice in paragraph 9 you refer to your involvement in the negotiations for the Portland Aluminium Operators Enterprise Agreement 2018, relating predominantly to the company's claim that it sought to end the practice of employing a full-time senior site delegate to undertake duties in relation to members of the Australian Workers Union at Portland Aluminium. Do you recall when that claim was presented?‑‑‑No, not specifically, though what I would say is that whilst obviously this witness statements in these proceedings refer to the Portland plant, the organisation's view across all its locations was that that role which did exist in our five West Australian locations also had no place in its future.

PN496

How did the organisation express that view?‑‑‑Well, I'm not sure I quite get the gist but I'll have a go at answering the best I can. Effectively over many years the nature of the work places, including our work place, changes so the full-time convenor's position, while probably not uncommon many years ago, isn't common in other organisations. We certainly had a view, and have still a view, that the connection should be indirect when there's supervision, and our workers, while respecting the right of the union in the appropriate manner, and it was not any longer part of the modern workplace for Alcoa to be paying employees to work, in some cases, particularly at Portland, on issues that weren't relevant to the plant or to make it difficult, even inadvertently, for supervision to have a direct and meaningful relationship with their employees.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN497

Mr Gleeson, you mentioned then what your organisation considered to be appropriate workplace practice. How did your organisation define that, and how was your view shaped by that?‑‑‑By knowledge of the industry, and by that I mean the mining and manufacturing resources industry, personal knowledge; by conversations with peers around the industry; by direct conversation with employees of the union, as well.

PN498

If I could just take you back to paragraph 9 of your statement where we started, Mr Gleeson. You reference there that the company wanted to cease the practice of employing a full-time senior site delegate to undertake union duties. When you say union duties, what specifically are the duties you're referring to there?‑‑‑Things like, I guess, business of the union. So, you know, working on behalf of the union for organising activities that weren't related to the wellbeing of the Portland Aluminium Plant and its people, potentially; attending meetings that were not relevant to Portland Aluminium and its workers that were about the organisation, funding, and position in unrelated matters of the AWU, in particular.

PN499

When you say meetings that weren't relevant to Portland Aluminium, what sort of meetings are you referring to there?‑‑‑Well, management meeting with the union, potentially. That would be one example, where the union talks about its own structures, its own finances and industry drives, policy positions, those sorts of things.

PN500

You mentioned in paragraph 12 of your statement, if I could refer you to that, Mr Gleeson and it's on page 2 of your statement - - -?‑‑‑Yes.

PN501

You mentioned there that Mr Peter King, in accordance with paragraphs 10 and 11 of your statement, under arrangements that were set out in accordance with the Portland Aluminium Operators Enterprise agreement 2014 was permitted to undertake, and you specifically reference there, 'union related activities.' What activities were those?‑‑‑My understanding from the people who were running the plant at the time, was that they were activities of the type I just described. So, the sort of things that were relayed to me were attending – and I might add there, the (indistinct) are incorrect here, excuse me, but executive board meetings, or board of management meetings for the union, there were meetings of that nature that were not directly related to Portland Aluminium and its members. There was also concerns about Peter at the time, who may do work for AWU members based in Portland who were not employed by Portland Aluminium, for example. So, the desire was to focus in on the work of the – to represent our employees.

PN502

And the concerns that you referenced then about Mr King, were those concerns shared by Portland Aluminium generally, as far as you're aware?‑‑‑Well, by the leadership of Portland Aluminium.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN503

Right?‑‑‑Yes.

PN504

Just going further into paragraph 12 there, Mr Gleeson, you refer there to your understanding from discussions with management personnel that Mr King wasn't subject to much supervision, having little or no accountability to Portland Aluminium and only infrequently attending the Portland Aluminium premises, being based at the AWU's offices in Portland. Do you recall exactly who were the management personnel with whom you had those discussions?‑‑‑Yes, I do.

PN505

Who were they?‑‑‑Peter Challis, who at that point was location manager.

PN506

Yes?‑‑‑Tom Pethybridge from Human resources, Narelle Byrnes from Human Resources, and later in operating line manager roles.

PN507

Yes, and when did those discussions take place, from your recollection?‑‑‑Through 2017, 2018. Look, I came into a role with national portfolio responsibilities in 2015, and the conversations occurred consistently through that period. But relevant to the enterprise agreement talks, 2017/2018.

PN508

So, in those discussions did Mr Challis, or Ms Byrnes or Mr Pethybridge express concern about Mr King not being subjected to much supervision and having little or no accountability to Portland Aluminium, and only infrequently attending the company's premises?‑‑‑Yes.

PN509

They did?‑‑‑Yes.

PN510

Consistently?‑‑‑Yes.

PN511

In those discussions did any of those management personnel indicate that they had raised those concerns with Mr King, himself and/or with the AWU?‑‑‑Mr Pethybridge did, yes.

PN512

Right?‑‑‑But with Mr King. I won't say with the AWU directly, but with Mr King.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN513

In terms of those concerns about Mr King not being subjected to much supervision and having little or no accountability to Portland Aluminium, and only infrequently attending the Portland Aluminium premises, were those concerns, in your view, motiving the changes the company was seeking to make to the senior site delegate clause in the 2018 enterprise agreement?‑‑‑No, I wouldn't say that. I would say they were a factor that added to it. But the motivation to no longer have, I guess in WA, an extra

PN514

full-time convener or a senior sort of delegate, was really to – because the company didn't see it as appropriate to be funding a position that, in Peter's case, didn't necessarily spend a lot of time on the location or always be dealing with our workers, but also to try to develop an operating model or a culture where we were solving problems at the lowest level, so on the crew it the supervisor.

PN515

Yes?‑‑‑And respecting the role of the union and their elected convenor, of course, but not having that person sitting in an office offsite, in Peter's case, or – five days a week doing nothing other than that, and being paid by Alcoa as an employee.

PN516

If I could take you to paragraph 13 of your statement, Mr Gleeson, and this is at the bottom of page 2, do you have that there - - -?‑‑‑Yes.

PN517

Yes, so you referenced there that the proposal to cease the practice of employing a full-time senior site delegate was consistent with a nationally adopted approach to ceased the practice of employing conveners and/or senior site delegates on a full-time basis with no operational responsibilities. When was that national approach adopted?‑‑‑We negotiated, and I can't give you exact dates but I'll give you approximates, I think around 2016, leading into negotiations for our agreement in the west. We had five locations and that was ratified in 2019, and obviously the Portland talks which resulted in a new agreement in 2018.

PN518

What, are you saying that a national approach wasn't ratified, as such, until 2019?‑‑‑No. No, I said the agreement wasn't ratified. I said 2016.

PN519

Okay. In relation then to that national approach, were you informed that that had to be observed in the context of that 2018 enterprise agreement negotiations?‑‑‑I'm sorry, I don't quite – I don't understand your question.

PN520

You've mentioned, Mr Gleeson, there was a national approach that had to be observed. Were you informed or directed by anyone in management that that had to be observed in the context of the 2018 enterprise agreement negotiations for the operators agreement?‑‑‑I won't say – there's a difference between getting a direct instruction and, you know, having the independence to think your way through a problem that may be relevant to a specific location. So what I had was a direction, what the company wanted and what we wanted to achieve, and the responsibility to do the best I could to make that happen at all their six operating locations.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN521

How was that direction expressed?‑‑‑It would have come from my direct supervisor and the Australian lead team.

PN522

Right. If I could take you then to paragraph 14 of your statement, and it's on the top of page 3?‑‑‑Yes.

PN523

You've got that there?‑‑‑I do.

PN524

You mention what you consider to be the inappropriateness of Alcoa employing a senior site delegate on a full time basis, when employees had the opportunity to seek assistance and support from their supervisors and managers for – directly from the AWU. In your experience as Director of Employee Relations & Learning and Development, and then the Director of Human Resources, for what types of matters would employees seek assistance and support from their supervisors and managers?‑‑‑Well, workplace instructions; job allocation; training opportunities; leave; access, access to leave; if they need late starts, early finishes for private issues, those sorts of things.

PN525

So there would be a whole range of matters then related to their work that they wouldn't necessarily speak to their managers or supervisors about, for instance, superannuation or an issue that they had, to do with WorkCover?‑‑‑Potentially, they could potentially talk to the embedded

PN526

HR folks in the plants, of course, who we have at each location, including Paul Lynn(?) who can assist them with those sorts of things.

PN527

Thank you. Just in relation to the national approach that we were discussing, did that mean effectively that Portland Aluminium were convinced that on a national basis employees could seek assistance directly from the AWU?‑‑‑The office of the union, do you mean?

PN528

From the AWU?‑‑‑If we removed the convener's position or the senior site delegate's position, is – I'm struggling to answer the question.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN529

That's right?‑‑‑Okay. We were of the view that it was certainly doing nothing to eliminate or change the delegate structure, so each crew already had a delegate, each bit crew. I believe that remains. So, for example, at the ingot mill there's generally appointed an AWU delegate for each of the four panels in that department. So they can talk to that person, who could then talk to the senior site delegate and they would be will elected and working on shift, but it still exists, or to talk to officials of the union of that was required.

PN530

If I could take you to paragraph 15 of your statement, Mr Gleeson. It's just under 14 on top of page 3. You mention there that you considered in advance of negotiations for the 2018 agreement that the practice of employing full-time senior site delegates or conveners was unsustainable. What do you mean by unsustainable?‑‑‑I think it created a division, that structural division that stopped us from, in some, or I'd say in a lot of circumstances, resolving issues where they should be resolved, between employees and supervisors, and the consistent failure to resolve issues at that level, in our view and in my view, creates, I guess a lack of self sufficiency and self sustainability, which is not good for the plant and the business in the medium to long term, and also it was a marginal business and that's not a secret. Whilst it may seem insignificant in a business that employs several hundred people, to be paying somebody to work outside of the physical operations, it's not insignificant. So from the point of view of the cost of the employment, but also the time of management taken up on things that could have been resolved at a lower level, building the skills and capability of those people to resolve issues independently, we felt it was unsustainable to continue with the model that was in place at that time.

PN531

So a more sustainable business model then from an organisational point of view meant removing the senior site delegate role?‑‑‑It would make it more sustainable, recognising that – and respecting the role of the union. They maintain the delegates and maintain the capacity of the union to bargain and to represent, yes.

PN532

If I could take you to paragraph 22 of your statement, Mr Gleeson, and that's mid way through page 4?‑‑‑Yes.

PN533

You mention there that further to the reference in paragraph 21 of your statement to Mr King's proposal in October of 2017 for the senior site delegate's position, that management considered his proposal unacceptable because it required agreement to provide for change and because it contemplated a range of permitted functions that the business didn't consider appropriate or acceptable, such as an unrestricted capacity to participate in the operations of the AWU and attend AWU functions. In light of your previous discussions with management, however, weren't the key concerns that Mr King was unsupervised, unaccountable to the company, and only infrequently attended at its premises?‑‑‑No, they're part of them, and also that by what I was advised by the people at Portland at the time, leadership at Portland at the time, it was not clear how much of his time was spent supporting the people who worked at the plant.

PN534

If that was the case then did you ever get a sense from the management there that they had raised those issues with

PN535

Mr King and discussed them with him?‑‑‑Yes, I did.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN536

How often would those issues have been raised with him?‑‑‑Look, I couldn't give you a number, but certainly

PN537

Mr Pethybridge advised me that he had spoken to Peter about those issues on occasion. I don't know whether it's three times or 30 times, I couldn't answer that.

PN538

Mr Gleeson, if I could take you to paragraph 34 of your statement, it's at the top of page 6 - - -?‑‑‑Yes.

PN539

You mention there discussions that you had on 4 April 2018 with Mr Liam O'Brien, who was then the Assistant State Secretary of the AWU Victorian Branch, concerning the senior site delegate clause and what was being sought by the company, attaching an email from later that day which is attached as attachment 8, and you've sent that to Mr Challis and Mr Pethybridge and if I could refer you to that attachment, you've written in that email, '(Indistinct) Liam O'Brien, Peter would have to deal with him (indistinct) regarding the convenience issue. He was probing on the, is it a WA issue or Portland?' You said, 'Portland.' He said, 'What specific problems or behaviours did we have in Portland?' I said that while Peter King was not destructive he was rarely on site and we're not prepared to pay people to act in this way. So, in accordance with that email, Mr Gleeson, the specific problem that the company had with the role of the senior site delegate was what Mr King was doing in that role, wasn't it?‑‑‑When it comes to Peter's specific behaviour, the lack of accountability absolutely was a problem, however I'll maintain that what I spoke to you a little earlier about with respect of the company's general direction, applied to Portland as much as it applied to the other locations that we run. And by that I mean the

PN540

full-time site delegate or convener's role was no longer part of our operational - - -

PN541

Thank you, Mr Gleeson, no further questions from me. Thank you, Deputy President.

PN542

THE DEPUTY PRESIDENT: Thank you. Anything in

PN543

re-examination, Mr VALLENCE?

PN544

MR VALLENCE: Nothing, thank you, your Honour.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN545

THE DEPUTY PRESIDENT: Thank you. Mr Gleeson, thank you for your evidence. You're excused from further attendance. If you'd like to observe the balance of the proceedings you are welcome to do so. I'd just ask that you keep your camera and microphone turned off. Thank you?‑‑‑Thank you, Deputy President.

PN546

Thank you.

<THE WITNESS WITHDREW [2.42 PM]

PN547

Mr VALLENCE, is Ms Alexander on hand?

PN548

MR VALLENCE: Your Honour, she is. I'll just need to give her a quick call to let her know to dial in.

PN549

THE DEPUTY PRESIDENT: All right.

PN550

MR VALLENCE: And that will be literally a moment, so I'd expect to need about one minute to two minutes.

PN551

THE DEPUTY PRESIDENT: That's all right.

PN552

MR VALLENCE: I'll just put the microphone on mute and I'll make this - - -

PN553

THE DEPUTY PRESIDENT: That's all right. Good afternoon, Ms Alexander. It's Deputy President Clancy. Can you hear and see me?

PN554

MS ALEXANDER: Yes, I can.

PN555

THE DEPUTY PRESIDENT: Thank you. We're going to be taking your evidence now. The first thing that will happen is that my Associate will take an affirmation from you, then Mr Vallence will deal with your evidence-in-chief and your witness statement, and then Mr Miller who is the advocate for the AWU, will have some questions for you. So if you could just listen to my Associate now for the taking of the affirmation, thank you.

PN556

MS ALEXANDER: Thank you.

PN557

THE ASSOCIATE: Ms Alexander, please state your full name and address.

*** MATTHEW CRAIG GLEESON XXN MR MILLER

PN558

MS ALEXANDER: Courtney Anne Alexander, (address supplied).

<COURTNEY ANNE ALEXANDER, AFFIRMED [2.46 PM]

EXAMINATION-IN-CHIEF BY MR VALLENCE [2.46 PM]

PN559

THE DEPUTY PRESIDENT: Thank you, Mr Vallence.

PN560

MR VALLENCE: Thank you, your Honour. Ms Alexander, could you please state your name and address for the Tribunal?‑‑‑Courtney Anne Alexander, (address supplied).

PN561

Can you tell us your position with the respondent?‑‑‑I am the Human Resources Manager at Portland Aluminium Smelter.

PN562

Thank you. Have you prepared a witness statement in relation to this matter?‑‑‑Yes, I have, which is here with me.

PN563

Do you have a copy of the digital court book there?‑‑‑I do.

PN564

Can I ask you to turn to page 144 of the digital court book?‑‑‑Yes.

PN565

Have you got that there?‑‑‑Yes.

PN566

That is the first page of a witness statement that is nine pages long, contains 49 paragraphs, has 17 attachments and appears to be signed by you on 27 June 2022. Is that a copy of your witness statement?‑‑‑It is.

PN567

Is it your belief that that witness statement is true and accurate?‑‑‑Yes.

PN568

I'd seek to tender that witness statement, your Honour.

PN569

THE DEPUTY PRESIDENT: Thank you. Subject to your

PN570

cross-examination, Mr Miller, is there any objection to the receipt of this witness statement?

*** COURTNEY ANNE ALEXANDER XN MR VALLENCE

PN571

MR MILLER: No, there isn't, Deputy President.

PN572

THE DEPUTY PRESIDENT: Thank you. Then I will mark the witness statement of Courtney Alexander which appears in the court book at page 144, comprising 49 paragraphs, 17 attachments and signed and dated 27/06/2022, as exhibit R3. Thank you.

EXHIBIT #R3 STATEMENT OF COURTNEY ANNE ALEXANDER AT PAGE 144 OF THE COURT BOOK, COMPRISING 49 PARAGRAPHS, 17 ATTACHMENTS AND SIGNED AND DATED 27/06/2022

PN573

Anything further, Mr Vallence?

PN574

MR VALLENCE: No further questions from me, thank you, your Honour.

PN575

THE DEPUTY PRESIDENT: Thank you. Ms Alexander, Mr Miller may have some questions for you now, thank you. Yes, Mr Miller?

CROSS-EXAMINATION BY MR MILLER [2.48 PM]

PN576

MR MILLER: I do. Thank you, Deputy President. Ms Alexander, if I could refer you to paragraph 10 of your witness statement which is on page 2, around about mid way on that page?‑‑‑Yes.

PN577

You mentioned in that paragraph, your responsibility to ensure that the requirements of clause 24, the Portland Aluminium Operators Enterprise agreement 2021 are complied with by the company and Mr Jones. What, in your view are those requirements?‑‑‑So, effectively the supervision of our areas will come to myself to discuss any of the clauses within the agreement and how they pertain to our work environment. So effectively, and as you can see from the past, Mr Jones will request absence from the workplace or to be out of the workplace, and effectively I would oversee that to make sure we're consistent across the board and it's in relation to clause 24, as written in the agreement.

PN578

I understand. But you've mentioned specifically there the requirements of clause 24. What, in your view are those requirements?‑‑‑So, the requirements of the clause 24 as a senior site delegate, and it basically sets out instances or occurrences on when the senior site delegate could be released from the workplace..

*** COURTNEY ANNE ALEXANDER XXN MR MILLER

PN579

Does it? Okay. In relation to the release from the workplace, what it talks about in clause 24, you have the agreement there - - -?‑‑‑I'll just get my copy. Yes.

PN580

So, clause 24.1 talks about what the company is obliged to do, in relation to the senior site delegate role - - -?‑‑‑Mm-hm.

PN581

Would you accept that?‑‑‑Yes.

PN582

Yes, so would the requirements therefore that you're referring to in your witness statement, mean the requirements in accordance with that clause?‑‑‑The requirements under 24.2, 'the senior site delegate will attend work in accordance with their day roster, perform all their work, provide reasonable notice, and I think the key point, as well, is (iv), 'participate in meetings when requested, including consultation and dispute resolution processes that pertain only to this agreement,' and then the examples.

PN583

But there's no requirements that you see, in accordance with clause 24.1?‑‑‑Well, there's (b), so 'you are to provide reasonable time during work hours for the senior site delegate to meet with members, pertaining to this agreement, the company or union officials, as may be required as part of the representative role.'

PN584

So that would be a requirement that you would observe, as well?‑‑‑Mm-hm.

PN585

Right?‑‑‑Yes.

PN586

Paragraph 13 of your statement, you state that having started – and this is also on page 2, having started in your role two days earlier, in response to the request from the AWU that Mr Jones attend its branch executive meeting on 13 and 14 December 2021, you weren't aware of any prior practice in releasing Mr Jones. Did you become aware of that past practice, and if so, when?‑‑‑So, I guess I followed a process of seek to understand, so I guess you can see set out in my witness statement there's several instances there where I've been able to find evidence of when he has or has not been released, on what type and which leave, and then I also spoke with the management team to understand their experiences in the past, as well.

*** COURTNEY ANNE ALEXANDER XXN MR MILLER

PN587

What did come out of those discussions that you had with management about those past experiences?‑‑‑That on each instance where the senior site delegate is requesting to be absent from the workplace, he would send an email to his supervisor with the information, including the HR Manager, in the past. The information would generally summarise what he was doing, where he was going, and how it pertained to the agreement, and then a decision would be made on a case by case basis as to whether it pertained to the agreement and the role of the senior site delegate as a representative.

PN588

Right, and was there anyone in particular in management, who made that past practice and those previous instances aware to you, or clear to you?‑‑‑You mean the past practice of him requesting in an email?

PN589

The past practice of responding to requests from Mr Jones?‑‑‑So, who made me aware of that process?

PN590

That's right?‑‑‑Who made me aware of that process – I think it was just the process of him requesting, to make sure it was in line with the agreement as I'm the Human Resources Manager. I just expected it, I guess.

PN591

There wasn't anyone in particular in management who gave you background or history or information about the past practice of dealing with those requests?‑‑‑So the management team, I'm sort of the newest person to the management team. They've all been here for about 15 years.

PN592

Yes?‑‑‑So I spoke to Dion Gallagher, Narelle Byrnes, she's ex HR Manager, and Ron Jorgensen, my direct supervisor, Ash Burton. They're usually the one – they're Operational Managers, so they've seen these types of things before.

PN593

Okay. Could I take you to paragraph 31 of your statement, Ms Alexander, which is on the bottom of page 4?‑‑‑Mm-hm.

PN594

You mention there that concerning the request from the AWU for Mr Jones to attend the branch executive meeting in March, that you continued to seek further information from the business on past practices?‑‑‑Mm-hm.

PN595

What were those past practices concerning?‑‑‑So, for example, there's another clause in the agreement about training.

PN596

Yes?‑‑‑So, just talking to everyone about, you know, what they considered training the past, what sort of approvals they've been through, what sort of requests have been made, as well as other meetings that they attend, that he has attended in the past.

PN597

Right, and from whom within the business did you seek that information?‑‑‑All of those managers that I previously said, Narelle, Dion, Ron Jorgensen, Ash Burton.

*** COURTNEY ANNE ALEXANDER XXN MR MILLER

PN598

Did you speak with Mr Jones specifically about what those past practices involved?‑‑‑Well, I guess it came up as part of the dispute resolution process that we went through.

PN599

So it wasn't until the dispute resolution process, that you spoke with Mr Jones about his request?‑‑‑Well, no, I spoke to him in between then because I'd spoken to him around 10 December, or on 10 December, just trying to get clarity and let him know, and then I've spoken to him several other times between then.

PN600

Sure, but in relation to his request to attend the branch executive meeting in March, or the request that had come from the AWU, the first time that you spoke to him about that was in the dispute resolution process, is that right?‑‑‑Yes.

PN601

When was the first time you spoke to him about that?‑‑‑It's in my witness statement here, so he obviously requested it, and I definitely spoke to him on 10 December because he had come to my office about a different matter and he'd asked me, was I going to allow him to effectively not record the leave against his leave accrual, so take special paid leave or whatever you'd like to call it.

PN602

I understand, Ms Alexander, but this is in relation to the request to attend the branch executive meeting in March. So, we've mentioned about the branch executive meeting in December. This is the meeting in March. So when was the first time you spoke with Mr Jones about that? Was it at the dispute resolution process?‑‑‑I can't specifically recall any event or discussion face to face, other than the email request.

PN603

Can I take you to paragraph 32 of your statement?‑‑‑Mm-hm.

PN604

You mention, that's at the top of page 5 - - -?‑‑‑Mm-hm.

PN605

You express in that paragraph that you made the decision for Mr Jones' attendance at the AWU branch executive meeting in March of 2022 on paid time, was not provided for by clause 24 of the Portland Aluminium Operators Enterprise agreement?‑‑‑Mm-hm.

*** COURTNEY ANNE ALEXANDER XXN MR MILLER

PN606

Which factors influenced you to reach that decision?‑‑‑So I had asked both Mr Jones and Mr Saunders for further information at the first dispute resolution meeting so I could understand the content of the meeting, what was discussed and how it pertained to the agreement or the members here, and through that I received a response like, 'Oh, that's confidential, we can't let you know that,' but that Ms Saunders would try to seek further information from the AWU so he could give me – or provide some information as to what was discussed at that meeting so I could make a more clearer determination.

PN607

But the dispute resolution process was obviously initiated after you'd made the decision, so what were the factors that influenced you to reach that decision? You were obviously discussing the consequences of your decision, and Mr Jones and Mr Saunders were obviously challenging the decision through the dispute resolution process. But what factors influenced you to reach the decision not to allow Mr Jones to attend the AWU branch executive meeting?‑‑‑So, the first decision was based on my understanding of the state branch executive, and the information provided to me was that I couldn't basically ascertain how it pertained to the agreement, and that's when I received that response from Mr Saunders insinuating or implying that he would put it into dispute, so that's when I organised that first meeting to have a discussion with both Mr Saunders and Mr Jones to, I guess, get their point of view. I understand from their perspective how they saw that the state branch executive meeting pertained to the agreement and the role of the senior site delegate as it reads in the agreement. From there, so I'm open to discussion about it at that point. That's when Mr Saunders advised that he would try to get some more information to provide me so that he could basically convey how the role pertained to the agreement and the role of the senior site delegate, or how the meeting did.

PN608

Did you have discussions with Mr Challis, or Ms Byrnes or Mr Pethybridge prior to making that decision?‑‑‑Mr Challis doesn't work for Portland Aluminium. Mr Jorgensen, Ms Byrnes, yes. Narelle and Dion Gallagher, yes of course. I'm a new HR Manager, I wanted to understand past practices, understand what had been acceptable in the past so I could effectively be consistent, moving forward.

PN609

Did they express a view in those discussions, any of them, that that request should be denied?‑‑‑They did not think that the BECM meeting, or the branch executive meeting, pertained to the role of the senior site delegate.

PN610

Did you, as part of the process to which you refer in paragraph 32, speak to Mr Jones or any other representative of the AWU to clarify exactly what his participation in the December 2021 meeting involved, or obtain any minutes of that meeting?‑‑‑No, there was no information like that provided to myself.

PN611

No but did you initiate any discussions with Mr Jones or any other representative of the AWU to clarify what had occurred at the December 2021 meeting, because you'd permitted his attendance at that meeting?‑‑‑I asked what was discussed. I'd just started a new job and I'd moved to a new town, so no, probably not.

*** COURTNEY ANNE ALEXANDER XXN MR MILLER

PN612

In relation then to Mr Jones' request to attend the March meeting, or the AWU's request on his behalf to attend, did you ask him upon receipt of that request, what his participation at that meeting was likely to involve, or did you seek an agenda for that meeting?‑‑‑At the first – so I did a bit of research myself to understand what the state branch executive meeting is, so just on line and then

PN613

Mr Saunders later provided the rules of the AWU. However, initially I did not seek that information because I sought to find it, myself.

PN614

So in relation then to his participation in the March meeting you didn't ask him what that meeting was likely to involve, or sought an agenda for what that meeting might involve?‑‑‑I did, at the first dispute resolution meeting, so I could understand.

PN615

After you'd made the decision?‑‑‑Yes because I didn't have that information at that time, yes.

PN616

Thank you, Ms Alexander, no further questions from me.

PN617

THE DEPUTY PRESIDENT: Thank you. Mr Vallence, anything in re-examination?

RE-EXAMINATION BY MR VALLENCE [3.04 PM]

PN618

MR VALLENCE: Just two questions, thank you, your Honour.

PN619

THE DEPUTY PRESIDENT: Yes.

PN620

MR VALLENCE: Ms Alexander, you were referred to the circumstances contemplated in paragraph 29 when you said that Mr Saunders sent you a copy of the rules. Can I ask you to turn to attachment A5 to your witness statement, which starts at paragraph 167 of the digital court book?‑‑‑Sixty-seven. Attachment 5, 167. 'Hi, Courtney and Dion, I have attached an extract from the official AWU rules which is held by the Fair Work Commission, re the branch executive,' yes.

PN621

Yes, and then there's, I believe, the attachment at page 168?‑‑‑Yes. Yes.

*** COURTNEY ANNE ALEXANDER RXN MR VALLENCE

PN622

That was the information that was provided to you by Mr Saunders in justification for the request for Mr Jones to attend that meeting?‑‑‑Yes, so in the meeting that I discussed the dispute resolution he said that he would go back to the AWU and get some more information regarding what the meeting was about, or what it contained, and so I believed following that meeting, he sent me the rules of the AWU, effectively to explain.

PN623

Did he send you all the rules or was it that extract that's attached to the - - -?‑‑‑Just that extract. But I went back and had a look at the full rules because it was interesting, yes.

PN624

When you were giving evidence through cross-examination, I believe I heard you refer to, there had been during the course of one of the discussions that had been held regarding Mr Jones' attendance, that there'd been some comment made to the effect of, we won't talk about what happens during the meeting because it's confidential?‑‑‑Yes.

PN625

Did you mention that?‑‑‑Yes.

PN626

Can you share with us the context in which that comment was made?‑‑‑Yes, so that was the first sort of meeting that I booked with Mr Jones and Mr Saunders after they implied that they would put it into dispute, and I basically explained that I couldn't make a determination of whether this meeting pertained to the agreement because no one has provided me with any content for the actual meeting and what was discussed at the meeting, or anything like that. And so in response to that, Mr Saunders said, well, he couldn't share with me what was discussed at that meeting because it was confidential. But then I said, like, I can't make a determination if I don't know what is actually said at the meeting, and so then he said, I think like – at the end of the meeting he said, 'Do you want me to try and get some information about the meeting?' And I said, 'Yes, I would appreciate that.' And then a couple of days later he provided the rules, or the extract of the rules.

PN627

You mentioned, I believe in relation to the dispute, that it was an implied dispute. Can you tell us what you mean by that?‑‑‑He said that we were in breach of the agreement by denying Mr Jones paid leave to attend the branch executive, so I just assumed that he meant, well, we're not upholding the agreement, so we've done something wrong and we're in dispute.

PN628

And you initiated the dispute resolution process being undertaken?‑‑‑Yes. Yes.

PN629

Thank you. No further questions, thank you, your Honour?‑‑‑Thank you.

*** COURTNEY ANNE ALEXANDER RXN MR VALLENCE

PN630

THE DEPUTY PRESIDENT: Thank you. Ms Alexander, thank you for your evidence. You're excused from further attendance. If you would like to remain on line for the balance of the hearing you're welcome to do so. I'd just ask that you keep your camera and microphone off, thank you?‑‑‑Thank you, I will do.

PN631

Thank you?‑‑‑Thanks for your time.

PN632

Thank you.

<THE WITNESS WITHDREW [3.08 PM]

PN633

Mr Vallence, does that complete the evidentiary case for the respondent?

PN634

MR VALLENCE: That does, thank you, your Honour.

PN635

THE DEPUTY PRESIDENT: All right, I'm happy to give the parties a brief adjournment to gather their notes just in relation to any matters that arose out of the evidence for the respondent that we've heard since lunch. Would 15 minutes be of assistance to the parties, so that we can then move into final oral submissions?

PN636

MR MILLER: Yes, it would, thank you, Deputy President.

PN637

THE DEPUTY PRESIDENT: Thank you. Mr Vallence?

PN638

MR VALLENCE: We can work that, thank you, your Honour.

PN639

THE DEPUTY PRESIDENT: All right, we'll resume at 25 minutes past 3.00, that's eastern standard time. Thank you.

PN640

MR MILLER: Thank you.

SHORT ADJOURNMENT [3.09 PM]

RESUMED [3.26 PM]

*** COURTNEY ANNE ALEXANDER RXN MR VALLENCE

PN641

THE DEPUTY PRESIDENT: Thank you. The order in which we'll proceed, given it's the AWU's application, Mr Miller will make submissions, Mr Vallence will respond them Mr Miller will have the opportunity to reply. The matter I want both parties just to just engage with though before we get underway is, what is in essence the question the parties require the Commission to determine.

PN642

My thoughts, and I'm open to persuasion on this but – is that the essence of the dispute is to resolve the question of whether the terms of the Portland Aluminium Operators Enterprise agreement 2021 obligate Alcoa to provide reasonable time during work hours for Mr Jones to attend AWU BECM meetings. That seems to me to be the essence of the dispute, and I know the parties have focused their submissions on three particular subclauses of the agreement, or principally on those three.

PN643

But that seems to me to be the essence of what has arisen by way of a dispute, and what brings the parties to this Commission. I appreciate I've just put that to you, but that's what has emerged to me through the course of the hearing today. So, Mr Miller, apart from responding to that, I'll invite you now to make any final oral submissions you'd like to, based on the evidence that we've heard today, and any other matters you want to highlight from the written submissions previously filed.

PN644

MR MILLER: Thank you, Deputy President. If I may refer to the applicant's outline of submissions and reply. I'd seek that these be admitted into evidence.

PN645

THE DEPUTY PRESIDENT: I won't need to receive them as part of the evidence but I will receive them as part of the court book and note that you rely on them.

PN646

MR MILLER: Thank you, Deputy President. We do agree with you, Deputy President. We do consider that the dispute bears overwhelmingly on the interpretation of clauses of the Portland Aluminium Operators Enterprise agreement 2021, in particular, clauses 24 and 26. I will turn my attention first of all, Deputy President - - -

PN647

THE DEPUTY PRESIDENT: Sorry, 26 being - - -

PN648

MR MILLER: I'm sorry, Deputy President, clauses 24 and 6.

PN649

THE DEPUTY PRESIDENT: And 6, thank you.

PN650

MR MILLER: If I could refer you first of all to the terms of the agreement. Considering clause 24, Deputy President, we consider that clause 24.1 sub-section (b) is clear in its wording and application, both in the context of the agreement, and over time between the company and its employees concerning the company's obligation to allow the senior site delegate reasonable time off to meet with members, the company or union officials as may be required, without loss.

PN651

Significantly, Deputy President, the sub-clause provides for meetings with members pertaining to this agreement, the company or union officials. Deputy President, it's important to note that the qualifying reference in clause 24.1 sub-section (b), two meetings pertaining to this agreement is only linked with members, not meetings with the company or unions. Considering the reference to union officials, attendance at the union's BECM meeting does inevitably involve the senior site delegate meeting with members and union officials.

PN652

Considering the reference to union officials, we would draw your attention, Deputy President, to the definition of 'official' in section 12 of the Fair Work Act, which means. 'a person who holds an office in, or is an employee of the association.' The meetings of the union's BECM provide, or comprise those who hold office in the union. In addition, as specified in clause 24.1(b), we maintain that Mr Jones' representative role was being necessarily and appropriately fulfilled by him seeking to attend the union's BECM meetings.

PN653

The evidence of Mr Reilly and Mr Jones, in particular, indicates that issues concerning the workforce at Portland Aluminium, such as WorkCover and superannuation, have been raised and discussed at recent BECM meetings, and to the extent that he is raising them and engaging with other union officials in that forum on them, then Mr Jones is providing representation within that forum. Also, Deputy President, we say that Mr Jones, by seeking permission to attend the March '22 BECM, or branch executive meeting, was acting within his obligations under clause 24.2 of the agreement to participate in meetings when requested.

PN654

I refer you, Deputy President, to the terms of clause 24.2(4) which impose on the senior site delegate an obligation to attend a broad range of meetings when requested. We submit that under this clause the senior site delegate's obligation to attend meetings is a broad one.

PN655

We dispute an interpretation of clause 24.2(iv), or (4) that considers that the obligation of the senior site delegate is to participate in meetings that pertain only to the agreement. Had that interpretation been intended then the words, 'pertain only to the agreement,' would have been applied immediately subsequent to the reference in that sub-clause to meetings.

PN656

In any event, should the Commission prefer an interpretation of clause 24.2 sub-section (iv) which confines the obligation on the senior site delegate to meetings that pertain only to the agreement, then the applicant considers that the BECM or branch executive meetings do pertain to the agreement to the extent that consistent with the evidence of Mr Reilly and Mr Jones, issues involving the Alcoa workforce were matters such as WorkCover and superannuation are represented in that forum.

PN657

In addition, the examples 1 through 4 of clause 24.2

PN658

sub-section (iv) are specifically identified as such, as examples and are not to be an exhaustive list of the meetings that the senior site delegate is obliged to attend. That said, we do maintain that the attendance of Mr Jones at the BECM meeting in March of this year would fall within example 4 of clause 24.2(iv), being a meeting involving participation in a union matter.

PN659

Furthermore, Deputy President, we maintain that the respondent has also breached clause 6 of the agreement by making a change to its policy concerning both its treatment of requests for time in attending BECM meetings generally, and specifically concerning Mr Jones. In Mr Jones' case that breach has disadvantaged him in terms of his pay entitlements through reduced annual leave and non payment of that time worked.

PN660

Finally, Deputy President, if I could deal with the evidence of Mr Saunders and Mr Jones, we submit that an honest mistake was made by both witnesses in being present for the evidence of Mr Reilly. To that end we had advised both witnesses of that requirement and acknowledged that a request had been made by you for witnesses not be present.

PN661

Unfortunately we didn't see them on the screen at the time and I, in particular, was focused on the evidence of Mr Reilly. Thank you, Deputy President.

PN662

THE DEPUTY PRESIDENT: Thank you. Just, have you got any submissions that go to, or anything you want to highlight going to in 24.2 Roman numeral 4, where it said, 'participate in meetings when requested.' What meaning do you say should be given to, 'when requested'?

PN663

MR MILLER: 'When requested,' means when a request is issued, and a request in relation to the March 2022 BECM meeting had been made by the State Secretary of the Victorian AWU Branch, Mr Ben Davis.

PN664

THE DEPUTY PRESIDENT: Right, okay. Thank you, I'm just making a note. All right, thank you. You'll have an opportunity to make reply submissions after Mr Vallence, so I'll ask Mr Vallence, please.

PN665

MR VALLENCE: Thank you, very much, your Honour. As you rightly pointed out earlier during the course of the respondent presenting evidence, or cross-examining, I should say, the applicant's evidence, the task before you is one of interpreting the Portland Aluminium Operators Enterprise agreement 2021. In relation to your observations before the closing submissions were commenced, we would agree that in the circumstances, the question as posed by yourself is the appropriate question to be determined.

PN666

The dispute did relate to Mr Jones' attendance to the March 2022 instance of the executive committee meeting – quarterly meeting, I should say, but it is apparent, I think that both the parties have presented evidence in a general sense, but also that this decision that you are to make will also be something that is relevant to future instances of Mr Jones seeking to attend.

PN667

The applicant is clearly claiming that Mr Jones should have been permitted to attend that particular branch executive meeting, and contends that not allowing him to do so was in breach of three specific clauses of the agreement, namely clause 24.1(v); clause 24.2 (iv); and clause 6 of the agreement. The respondent is seeking to rely on its written submissions and in respect of these closing submissions.

PN668

It is evidence from the materials that are in front of you that the respondent holds a different view to that expressed by the applicant and that this matter does involve a consideration of those terms in a general sense. Clause 24 of the agreement which contains two of the clauses that are relied upon by the applicant, establishes the rights and obligations of the parties in respect of the senior site delegate role.

PN669

Relevantly, clause 24.1 imposes a range of obligations on the respondent and clause 24.2 places a range of obligations on the senior site delegate. Such clause was, or as the evidence demonstrates, and is self evident when a comparison is made of the 2014 agreement and the 2018 agreement, a new clause that was introduced in the 2018 agreement.

PN670

The applicant submits, in summary that the new clause in summary should be considered to codify the existing arrangements that were in place pursuant to the 2014 and earlier agreements. We say that that submission is wrong based on the evidence before you. The evidence of Mr Gleeson, which relevantly wasn't disturbed, was that the desire of the respondent was to move away from the existing regime in place at that time.

PN671

His evidence was that the company desired a change whereby the senior site delegate role was no longer a full-time role, because it was appropriate for employees to seek opportunity for support from managers, supervisors and/or the applicant itself. It is accepted by both the applicant and the respondent, and clear from the evidence attached to Mr Gleeson's witness statement that the parties did negotiate senior site delegate terms for the 2018 agreement and that there was extensive to-ing and fro-ing, with the issue being a contentious one.

PN672

In short, there was a negotiation undertaken to establish the rights and the obligations of the parties in respect of a senior site delegate role, going forward and that wasn't, we can conclude on the evidence before you, limited to operating on site and addressing only the representation of employees rather than other work groups as has been asserted by the applicant.

PN673

Ultimately the parties have arrived at an outcome that was included in clause 24 of the 2018 agreement, which is now subsequently been included in the 2021 agreement without a change, and the applicant has pointed to clause 24.1(v) and 24.2(iv) as being those relevant to the matter before you.

PN674

If we turn firstly to clause 24.1(v) it is relevant to observe that clause 24.1 specifies a range of obligations that the respondent has to comply with, and that is made clear by the preamble wording that the company (indistinct).

PN675

And the relevant obligation is that the respondent will provide reasonable time during working hours for the senior site delegate to meet with members pertaining to this agreement, the company or union officials as may be required as part of the representative role. As noted in the respondent's written outline of submissions there are two key elements to that clause which must be satisfied having regard to the plain meaning of the words used.

PN676

The first of those, we submit, is that the meetings with members pertaining to the agreement, the company or union officials are to be as required as part of the representative role, and the key words in that passage, 'as required as part of the representative role,' involves two parts. The first is, what is the nature of the representative role.

PN677

The applicant seeks to have you conclude that the representative role is a very broad role that essentially entails any representative function that could relate to the senior site delegates' relationship with the members of the AWU that are employed by the respondent, but we say that's wrong.

PN678

We say that the representative role needs to be considered in the context that it exists with in a clause that relates to a senior site delegate, and we say that the role of a delegate should be considered to be one that's commonly recognised, and that the words, 'representative role' should be attributed. And we say that guidance as to what can be expected of a delegate as part of its representative role can actually be found within the rules of the applicant itself.

PN679

At part 8 of the applicant's rules, in particular, rule 45, sub-rule 9 which is included at page 446 of the digital court book, you'll see there that there are a list of matters that sets out the duties of delegates. There is nothing in our submission within that sub-rule that provides that a delegate's representative role is linked to undertaking a role as an executive branch member or as another official of the applicant.

PN680

Similarly we observe that there's nothing within clause 24.1 of the 2021 agreement, or the agreement generally that contemplates that undertaking a role as a union official is a part of the representative role of a senior site delegate. And we say that when regard is had to the language in clause 24.1(v), it can be concluded that the senior site delegate is meeting with union officials as the senior site delegate.

PN681

It is not as another officeholder which Mr Jones would be (audio malfunction) outside of that branch executive meeting. But that's not the purpose for that meeting. And a very critical part to that is the request made for Mr Jones to attend was in regard to his role as the executive branch member, not as the senior site delegate.

PN682

In fact when the respondent sought clarification as to the basis of, or justification on which Mr Jones should be allowed to participate, Mr Saunders provided excerpts of the rules that relate specifically to the executive branch, not to the delegate responsibilities. Mr Jones, himself, confirms that when he attends that meeting it's in the role of executive branch member. So we say that the attendance of Mr Jones at the March '22 branch executive meeting, or any other meeting for the purposes of the dispute, was not part of the representative role.

PN683

Then the second part of that equation, in terms of clause 24.1(v), is that the meeting is to be one as may be required, and that language has to have some purpose. You will recall that I took Mr Saunders through the evolution of clause 24 as it was being negotiated in advance of the 2018 agreement, and you'll recall that initially the union sought to have a clause which provided for participation in union affairs, without limitation, and then proceeded to provide a secondary clause, which I admit is separated also by further exchanges of documentation.

PN684

But the secondary draft that I put in front of Mr Saunders talked about the senior site delegate undertaking meetings with union officials as part of their representative role, and the final iteration of the clause, which ends up in the document, in the 2018 agreement, remains in the 2021 agreement, talks about, 'as may be required as part of the representative role.'

PN685

We say that the evidence before you does not support that there's a valid basis to say that there was a requirement to attend the meeting as senior site delegate. It was accepted by Mr Reilly and Mr Saunders that there are other delegates who managed to seek advice from, and receive communications from the executive branch to the extent that it involves itself in the management of disputes, without them being executive branch members.

PN686

There is, as I observed previously, no requirement in the rules that the applicant or the 2021 agreement that requires a senior site delegate to be an executive branch member, and as I alluded to earlier, it was conceded by Mr Jones and Mr Saunders and Mr Reilly that attendance was (indistinct) approach to a necessary part of the senor site delegate role.

PN687

The applicant hasn't led any evidence of a requirement to attend, and I say that pointedly, a requirement to attend, except to refer to in its submissions, a requirement for a delegate to comply with a reasonable request of the officer of the applicant, and we say that that submission isn't relevant. Such a request of the delegate wouldn't be reasonable given that evidence required evidence that makes clear the requirements for the time that it would take for Mr Jones to attend.

PN688

Secondly, we say that there is simply no nexus between the responsibilities of a delegate as set out in sub-rule 9 of rule 45, nor is there an evident capacity for the branch executive to compel a delegate to attend a meeting of the branch executive within the rules. In any event, even if it was the case that the representative role element was satisfied, not that we concede that, it wouldn't be reasonable to require attendance when other vehicles such as an online meeting is available.

PN689

Then of course there is the conduct of the parties, and I alluded to this just a moment ago. The final clause does not include an unqualified capacity to attend to the affairs of the union. The applicant asserts that the respondent's submissions that have been made in this regard to this point in time, are reflective of a subjective intention and we say that's not the case.

PN690

The objective intention can be determined by ultimately what was not included, as much as what was included, that being that there was no unqualified right to participate in the affairs of the union, being included. Mr Jones confirmed that there was some qualifications that were included in the 2018 agreement that did not exist previously.

PN691

In that circumstance we say it must be concluded that there was an objective intention to limit the obligations on the company, such that it wasn't required to allow time during working hours to attend to matters that were not required as part of the representational role, and we say that results in the participation of an executive branch being the excluded member, for the reasons that I have already covered.

PN692

The other criteria which arises from clause 24.1(v) is that the respondent is only obliged to allow reasonable time during working hours. Even if it's the case that you are satisfied that the attendance would accord with the senior site delegate representative role, and that attendance was validly required, both of which we (indistinct) can see, the time required for the attendance at this particular form of meeting is simply not reasonable.

PN693

The evidence before you is that the meetings are of one to two hours' duration. During that time industrial matters of significance take only a portion of the time allocated for the performance of the executive branch's functions during that meeting, which has been estimated in a ballpark of between 10 and 25 minutes. That would require the respondent to provide for 2, to 2.5 days, and it was only today that I note that Mr Jones sought to explain that it could be 1.5 days, to facilitate the participation in a meeting of that duration.

PN694

If we boil that down, what that looks like is a minimum of, in that series, not (indistinct) long, six and a half days if we're talking about four instances of one and a half hours duration, up to ten days, being (indistinct) for the purposes of dealing with matters that relate to members of the applicant's (indistinct) employed at the respondent's business for a duration of between 40 minutes and an hour (indistinct), six and a half days, to ten days for 40 to 60 minutes of discussion, which is undertaken in the context of the senior site delegate, having attended, and I should say, when I said the senior site delegate, I mean Mr Jones, Mr Jones attending in his role as the executive branch member. Unless you've got any questions of me, sir, I was looking to move to clause 24.2(iv).

PN695

THE DEPUTY PRESIDENT: All right, thank you, if you could move to the next clause.

PN696

MR VALLENCE: Thank you. Clause 24.2(iv) represents the other side of the bargain. That is, it's the obligations that exist on the senior site delegate, and the parties contemplated expressly that the senior site delegate will participate in union matters that pertain to the agreement.

PN697

The applicant notes, and quite rightly so, at point number 4 in clause 24.2(iv), is an example.

PN698

However, it would not be an industrial sensible outcome to conclude that the parties has also intended to allow participation in union matters that did not pertain to the agreement, merely because the example was an example. And we say that that view point is consistent with the evidence as to the negotiations whereby the proposed reference to a capacity to participate in the affairs of the union without qualification was not accepted and did not find its way into the senior site delegate clause.

PN699

Your Honour, you raised – I turn to a clause of the agreement, the issue of requesting, and what you should draw or conclude that that is intended to mean. As you would be well aware, of course, each word needs to do something, it's there for a particular purpose. We say that the request lives within the space of a clause that deals exclusively with the senior delegate, or as commonly known, the senior site delegate.

PN700

A request in those circumstances must relate to the representational role of the senior site delegate, and we say in that space that the request that was made by Mr Davis, or from whomever it might have come from in the union, to attend a branch executive meeting, is not contemplated within the meaning of what a request is, for the purposes of clause 24.2(iv).

PN701

That is a very important point that I think needs to be considered, as it remains the case that Mr Jones wasn't asked to attend as the senior site delegate, he was asked to attend as a member of the branch executive. And the justification Mr Saunders gave for his attendance was in the context of the rules as they relate to an executive branch member.

PN702

Your Honour, if I now turn my consideration to clause 6, which I propose to address unless you have any further questions of me - - -

PN703

THE DEPUTY PRESIDENT: No, except that – all right, so your proposition is, 'when requested,' is to be interpreted as a request made of a senior site delegate?

PN704

MR VALLENCE: That's right, your Honour, and I think the language of 'request' is that someone is making the request. Is it open to argue that there is some form of limitation as to who can make that request? I think in the circumstances when you look at clause 24.2(iv), first of all it's a broad obligation on the part of the senior site delegates participating in meetings when requested.

PN705

The examples provided cover a fairly wide range of topics. For example, consultation in dispute settlement processes; BA negotiations; individual protection insurance, and WorkCover claims. It would be, I think, inappropriate to try and assert that 'when requested,' is when requested by the company, or when requested only by the union, or when requested by an individual member.

PN706

But what we would say that in that context is that the request must be given in the context of it being the senior site delegate role and the representative role that's undertaken by the person who is in that role at that point in time.

PN707

THE DEPUTY PRESIDENT: All right, thank you

PN708

MR VALLENCE: I will turn to clause 6.

PN709

THE DEPUTY PRESIDENT: Yes.

PN710

MR VALLENCE: As you would have gleaned from the respondent's submissions, the respondent contends that there was no policy that's relevant for the purposes of clause 6. There has been no evidence of a policy as such, presented by the applicant. That was considered by Mr Jones. His reference to policy was, in his view, a reference to clause 24 of the agreement. Instead there has been an assertion made that the ongoing practices in place prior to that 2014 agreement constituted a policy that the respondent is now seeking to change., and say that there is and was no policy to change.

PN711

There was, up until the 2018 agreement, a set of arrangements as recognised by clause 24 as it was then written, and was enshrined in that agreement, in the 2014 agreement, and it was of course, incredibly broad and provided no real guidance as to what was intended. Those arrangements which were applied as a consequence of the agreement, and previous arrangements as agreed between the parties, were replaced wholesale by a new clause which created a new set of rights and obligations.

PN712

Those rights and obligations came into effect with the 2008 agreement and they wholly replace any existing arrangements. It was clearly the case that the notion of what was intended to be allowed of the senior site delegate was extensively explored. It wasn't just a slight remodelling of clause 24. It was clearly an attempt on the parties to preserve their positions as best as they can, but to write in a complete set of rights and obligations.

PN713

We say that there is no reasonable basis to asset that the parties seriously considered or objectively intended the historical arrangements that had occurred prior to that time were to have ongoing application despite the change to the wording of the agreement.

PN714

Further, and I note that I haven't heard much in the way of submission in this space but I think it's appropriate to address it, given that it's raised in Mr Jones' witness statement, to the extent that the applicant seeks to draw on conduct subsequent to the introduction of the 2018 agreement to submit that there's a new unwritten policy, we say that's not correct.

PN715

The evidence before you from Mr Jones is that there was four meetings that he had attended, which I can only conclude was put forward in support of a contention that there's been a change in position. If we recall the first meeting with Mr Davis, the evidence confirms that that meeting occurred prior to the commencement of the 2018 agreement. Therefore it's not relevant to how the parties conducted themselves after the operation of the agreement commenced.

PN716

The second meeting was for attendance of the national conference, which I think Mr Jones ultimately and begrudgingly accepted was approved by Mr Pethybridge on the basis of it being trade union training albeit beyond the scope of what had been permitted by that clause; the third meeting was a representative meeting and that was approved on the basis that Mr Jones would be attending as a delegate, to parliamentarians in Canberra to present and assist with representation as to material issues that were impacting his workforce, or when I say 'his workforce,' the workforce of the respondent that were covered by the AWU in the (indistinct).

PN717

The fourth meeting that Mr Jones points to was the 2021 branch executive meeting that Ms Alexander expressly approved on the basis that she was going to look into whether such absence was permitted by clause 24, going forwards. Finally, Mr Jones has broadly asserted that he was permitted to participate in branch executive meetings prior to the December 2021 meeting, but the evidence demonstrates, including as confirmed by him, that that was without disclosure and the business was not aware that that was what he was doing at that particular point in time.

PN718

So that we say that there's no policy that can be considered to arise from those approved attendances or the participation in the branch executive meetings without disclosure. Your Honour, there's only just a few more points that I just wanted to touch on quickly. The first is, I just wanted to touch on a couple of points that were made in the applicant's reply submission that I haven't already touched on.

PN719

In respect of the submission at paragraph 12 that the Commission as constituted should have regard for what employees were told, in considering the objective intentions of the parties, we observe that the applicant has, despite making the submission, not prior to today led any evidence as to what those discussions were, and you'll be aware, of course, your Honour, that placed us at a disadvantage because we didn't have the opportunity to seek instructions in relation to those.

PN720

But it's also the case that we do have written material in front of me which we say we can rely on in considering the meaning and objective intent of the parties in respect of clause 24. In response to paragraph 16 we submit that the evidence clearly demonstrates an intention to depart from existing arrangements for the senior site delegate role in the 2018 agreement, which at face value are demonstrated simply by virtue of looking at the clauses that are contained within the 2014 and 2018 agreement.

PN721

The final point that I wanted to make in relation to the reply submissions is that the respondent doesn't dispute that the objective of the applicant's (indistinct) organisation as set out in rule 4 as contemplated in paragraph 24 of the applicant's reply submissions. However, such objectives set out the objectives of the union as a whole (indistinct). They do not specify the functions of the delegate or the executive branch, which are dealt with expressly and specifically within those roles.

PN722

Just before I give a very short overview of the summary of the position of the respondent, you did ask me to consider the issue of white in relation to evidence given by

PN723

Mr Saunders and Mr Jones in light of the fact that they had – well, they heard the evidence of Mr Reilly.

PN724

I have turned my mind to that and I am not proposing to pursue a submission much further than general, and my reasoning for that is, based on my assessment of the evidence given by

PN725

Mr Saunders and Mr Jones, it's not clear to me which of the evidence given by those witnesses could be considered to have been affected by having heard the witness evidence of Mr Reilly.

PN726

It is disappointing that it occurred, of course, and I understand that there seems to have just been an oversight or an error, but I don't think I want to take it any further than that at this stage, your Honour, in terms of pressing that point.

PN727

In summary, what we say is that there was no obligation on the respondent to approve Mr Jones' attendance to the branch executive meeting in March, or for any other branch executive meeting, on the basis that there was no requirement for them to attend. It wasn't a meeting relating to the representative role of the senor site delegate but was intended as an executive branch member. The purpose of the meeting, in the main at least, didn't pertain to the agreement and it wasn't a change in policy prevented by clause 6.

PN728

But we do say that it you do disagree with us in respect of that, the amount of time that's requested was not a reasonable period of time to undertake that activity, which can be undertaken through online vehicles as the evidence shows, and as a consequence in respect of that instance it was certainly open to the respondent to refuse permission for the senior site delegate and Mr Jones to attend. Unless you have any further questions of me, your Honour, that ends our submission.

PN729

THE DEPUTY PRESIDENT: Just on clause 6 - - -

PN730

MR VALLENCE: Yes, your Honour.

PN731

THE DEPUTY PRESIDENT: Is your position, in broad compass, this simply isn't a policy, it's a set of rights and obligations that are set out in the agreement and therefore clause 6 has no work to do in this scenario?

PN732

MR VALLENCE: That's right, your Honour. To the extent that there was past practice, or some sort of unwritten policy, one that did exist prior to 2018, we say that that was wholly replaced. It came to an end when the parties sat down and worked through a contentious negotiation to arrive at a set of terms and conditions that expressly dealt with the rights and obligations of both the respondent and the applicant (indistinct).

PN733

Subsequent to 2018, we say there is no policy. There has simply been the application of the agreement according to its terms and we say that any of the assertions that participation in those meetings that have been allowed since 2018, do not create a policy and (indistinct) assistance.

PN734

THE DEPUTY PRESIDENT: All right, thank you. In reply, Mr Miller, anything you want to submit?

PN735

MR MILLER: Yes, thank you, Deputy President, just briefly. I do agree with Mr Vallence that the termination of this matter is relevant to future attendance at the March committee of management or branch executive meetings. Beyond that, in relation to his contentions concerning clause 24.1(b), we do consider that a broader interpretation of the representative role is appropriate, and we do consider that that role is appropriately fulfilled by Mr Jones attending and advocating in relation to members' issues in that forum consistent with the evidence that he's given.

PN736

In considering clause 24.2(iv), Mr Vallence mentioned that the request must relate to, I think, industrially sensible outcomes. I think really we need to focus in 24.2(iv) on what the words actually say, and in relation to the March of 2022 meeting at which Mr Jones was requested, that is a meeting and the examples there aren't exhaustive of the types of meetings that could be considered for the purposes of participation.

PN737

We say that further definition that would explicitly confine those meetings to not including branch executives isn't there, and wasn't intended by the negotiations that lead into the agreement. There's no evidence before the Commission in this matter that in negotiations for the 2021 agreement nor the twenty - twenty eighteen agreement, that attendance at branch executive meetings was a particular issue that the company sought to overcome.

PN738

What seems to be clear from the evidence of Mr Gleeson was in fact that there were issues with Mr King, and that the agreement wording, if it needed to be changed, needed to rectify the issues that the company was having with him engaging in activities that were inappropriate and which the AWU agreed needed to be restricted.

PN739

In relation to the respondent's contentions concerning clause 6, it is maintained that there is no evidence of a policy as such. We say that there was a longstanding practice that existed in the form of a policy, or could be considered to be a policy whereby Mr Jones and his predecessor, Mr King, were allowed to attend branch executive meetings in that understanding that that practice and policy underpinned what was negotiated in terms of outcomes of the 2018 and then 2021 enterprise agreements.

PN740

THE DEPUTY PRESIDENT: All right, thank you. I thank the parties for their preparation of materials and for their submissions today and the presentation of the evidence. I also thank them for the pragmatic and practical approach they adopted in the lead up to the hearing, in terms of correspondence and the receipt of material and the management of witnesses, which makes the task of the Commission easier, so I appreciate that.

PN741

I will now reserve my decision and issue a decision in writing with reasons, and I'll do that as soon as I'm able to do so. But if there is nothing further I'll thank the parties and their advocates and adjourn the Commission, thank you.

PN742

MR MILLER: Thank you, your Honour.

PN743

MR VALLENCE: Thank you, Deputy President.

ADJOURNED INDEFINITELY [4.11 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

RUSSELL GEORGE HURST, AFFIRMED............................................... PN18

EXAMINATION-IN-CHIEF BY MR VALLENCE................................... PN18

EXHIBIT #R1 WITNESS STATEMENT OF RUSSELL HURST DATED 27/06/2022........................................................................................................ PN30

THE WITNESS WITHDREW...................................................................... PN33

PATRICK VINCENT REILLY, AFFIRMED............................................ PN40

EXAMINATION-IN-CHIEF BY MR MILLER......................................... PN40

EXHIBIT #A1 WITNESS STATEMENT OF PATRICK REILLY DATED 14/07/2022........................................................................................................ PN54

CROSS-EXAMINATION BY MR VALLENCE........................................ PN58

RE-EXAMINATION BY MR MILLER.................................................... PN115

THE WITNESS WITHDREW.................................................................... PN120

ROBERT ALLAN SAUNDERS, AFFIRMED.......................................... PN133

EXAMINATION-IN-CHIEF BY MR MILLER....................................... PN133

EXHIBIT #A2 WITNESS STATEMENT OF ROBERT SAUNDERS DATED 14/06/2022....................................................................................... PN141

CROSS-EXAMINATION BY MR VALLENCE...................................... PN158

RE-EXAMINATION BY MR MILLER.................................................... PN286

THE WITNESS WITHDREW.................................................................... PN295

SELWYN DIRK JONES, AFFIRMED...................................................... PN302

EXAMINATION-IN-CHIEF BY MR MILLER....................................... PN302

EXHIBIT #A3 WITNESS STATEMENT OF SELWYN JONES DATED 14/06/2022...................................................................................................... PN310

CROSS-EXAMINATION BY MR VALLENCE...................................... PN334

RE-EXAMINATION BY MR MILLER.................................................... PN455

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

MATTHEW CRAIG GLEESON, AFFIRMED........................................ PN476

EXAMINATION-IN-CHIEF BY MR VALLENCE................................. PN476

EXHIBIT #R2 STATEMENT OF MATTHEW GLEESON COMPRISING 46 PARAGRAPHS AND APPEARING AT PAGE 72 OF THE COURT BOOK, SIGNED AND DATED 28/06/2022, WITH 16 ATTACHMENTS......................................................................................... PN488

CROSS-EXAMINATION BY MR MILLER............................................ PN491

THE WITNESS WITHDREW.................................................................... PN546

COURTNEY ANNE ALEXANDER, AFFIRMED................................... PN558

EXAMINATION-IN-CHIEF BY MR VALLENCE................................. PN558

EXHIBIT #R3 STATEMENT OF COURTNEY ANNE ALEXANDER AT PAGE 144 OF THE COURT BOOK, COMPRISING 49 PARAGRAPHS, 17 ATTACHMENTS AND SIGNED AND DATED 27/06/2022................... PN572

CROSS-EXAMINATION BY MR MILLER............................................ PN575

RE-EXAMINATION BY MR VALLENCE.............................................. PN617

THE WITNESS WITHDREW.................................................................... PN632